SETTLED ESTATES ACT, 1877.

40 & 41 VICTORIÆ, CAP. 18.

An Act to consolidate and amend the Law relating to Leases

and Sales of Settled Estates.

[28th June, 1877.]

WHEREAS it is expedient to consolidate and amend the law 40 & 41 Vict. relating to leases and sales of settled estates:

Be it enacted as follows:

c. 18, s. 1.

1. This act may be cited for all purposes as The Settled Short title. Estates Act, 1877" (a).

(a) This act is a re-enactment with amendments of the Leases and Sales of Settled Estates Act, 1856 (19 & 20 Vict. c. 120), and the four amending acts (21 & 22 Vict. c. 77; 27 & 28 Vict. c. 45; 37 & 38 Vict. c. 33; and 39 & 40 Vict. c. 30), all which are repealed by this act. Such of the cases decided under the last-mentioned acts as are applicable to the present act are given in the notes.

"settlement"

2. The word "settlement" as used in this act shall signify Interpretaany act of parliament, deed, agreement, copy of court roll, will, tion of or other instrument, or any number of such instruments, under and "settled or by virtue of which any hereditaments of any tenure or any estates." estates or interests in any such hereditaments stand limited to or in trust for any persons by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively (b).

The term "settled estates as used in this act shall signify all hereditaments of any tenure, and all estates or interests in any such hereditaments, which are the subject of a settlement (c); and for the purposes of this act a tenant-in-tail after possibility of issue extinct shall be deemed to be a tenant for life.

All estates or interests in remainder or reversion not disposed of by the settlement, and reverting to a settlor or descending to the heir of a testator, shall be deemed to be estates coming to such settlor or heir under or by virtue of the settlement.

In determining what are settled estates within the meaning of this act, the court shall be governed by the state of facts, and by the trusts or limitations of the settlement at the time of the said settlement taking effect.

(b) This section re-enacts the provisions of 19 & 20 Vict. c. 120, s. 1 21 & 22 Vict. c. 77, s. 1; and 27 & 28 Vict. c. 45, s. 3.

A will and a sub-settlement were held together to constitute a "settlement" (Re Dendy, 4 Ch. D. 879).

40 & 41 Vict. c. 18, s. 2.

Cases under old act.

Cases under the sect.

Interpreta

court."

Accruer was held succession within the Act of 1856 (Re Goodwin, 3 Giff. 620; see, however, Re Bardin, 7 W. R. 711; 5 Jur. N. S. 1378).

(c) The following were held to be settled estates within the Act of 1856:-Land limited to a person for life with remainder subject to a power of appointment to his heir (Beioley v. Carter, 4 Ch. 230); land devised in trust for several in fee, subject to the payment of one moiety of the income to B. for life (Re Shepheard, 8 Eq. 571); land devised in trust for A. on a contingency, with a gift over in default (Re Horne, 29 L. T. 830; see Re Bardin, 7 W. R. 711; and as to an estate in fee with an executory devise over, the construction being doubtful, see Re Williams 20 W. R. 967); land limited on trust for A. for life, and on her death on trust for sale (Re Morgan, 9 Eq. 578; Carlyon v. Truscott, 20 Eq. 348); land devised in trust for sale, the proceeds to go in succession (Re Laing, 1 Eq. 416; Re Greene, 10 Jur. N. S. 1098; Collett v. Collett, 2 Eq. 203; Re Chamberlain, 23 W. R. 852; Re Morgan, 49 L. J. Ch. 577; Dixie v. Dixie, 1881, W. N. 49). Where an undivided share of an estate was settled it was held that the whole must be considered a settled estate (Re Shepheard, 8 Eq. 571; see Re Goodwin, 3 Giff. 620). As to copyholds, see Re Adair (16 Eq. 124).

Under sect. 41 of the Conv. Act, 1881 (ante, p. 606), land vested in an infant in fee or for a leasehold interest at a rent is a settled estate within this act. Land was held a settled estate under this section, where the interest of the infant was determinable on death under twenty-one (Liddell v. Liddell, 31 W. R. 238; see Re Sparrow, 1892, 1 Ch. 412).

3. The expression "the court" in this act shall, so far as tion of "the relates to estates in England, mean the High Court of Justice, and all causes and matters in respect of such estates commenced or continued under this act shall, subject to the provisions of the Judicature Acts, be assigned to the Chancery Division of the High Court of Justice in like manner as if such causes and matters had arisen under an act of parliament by which, prior to the passing of the Judicature Acts, exclusive jurisdiction in respect to such causes and matters had been given to the Court of Chancery, or to any judges or judge thereof respectively.

Power to authorize leases of settled estates.

The expression "the court" in this act shall, so far as relates to estates in Ireland, means the Court of Chancery in Ireland. 4. It shall be lawful for the court, if it shall deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this act contained, to authorize leases of any settled estates, or of any rights or privileges over or affecting any settled estates, for any purpose whatsoever, whether involving waste or not, provided the following conditions be observed (d):

First. Every such lease shall be made to take effect in possession at or within one year next after the making thereof, and shall be for a term of years not exceeding for an agricultural or occupation lease, so far as relates to estates in England twenty-one years, or so far as relates to estates in Ireland thirty-five years, and for a mining lease or a lease of water mills, way leaves, water leaves, or other rights or easements forty years, and for a repairing lease sixty years, and for a building lease ninety-nine years: Provided always, that any such lease (except an agricultural lease) may be for such term of years as the court shall direct,

where the court shall be satisfied that it is the usual custom
of the district and beneficial to the inheritance to grant
such a lease for a longer term than the term herein before
specified in that behalf (e):

Secondly. On every such lease shall be reserved the best rent
or reservation in the nature of rent, either uniform or not,
that can be reasonably obtained, to be made payable half-
yearly or oftener without taking any fine or other benefit
in the nature of a fine: Provided always, that in the case
of a mining lease, a repairing lease, or a building lease a
peppercorn rent or any smaller rent than the rent to be
ultimately made payable may, if the Court shall think fit
so to direct, be made payable during all or any part of the
first five years of the term of the lease (ƒ):
Thirdly. Where the lease is of any earth, coal, stone, or
mineral, a certain portion of the whole rent or payment
reserved shall be from time to time set aside and invested
as hereinafter mentioned, namely, when and so long as the
person for the time being entitled to the receipt of such
rent is a person who by reason of his estate or by virtue of
any declaration in the settlement is entitled to work such
earth, coal, stone, or mineral for his own benefit, one fourth
part of such rent, and otherwise three fourth parts thereof;
and in every such lease sufficient provision shall be made to
ensure such application of the aforesaid portion of the rent
by the appointment of trustees or otherwise as the court
shall deem expedient (g):

Fourthly. No such lease shall authorize the felling of any
trees except so far as shall be necessary for the purpose of
clearing the ground for any buildings, excavations, or other
works authorized by the lease:

Fifthly. Every such lease shall be by deed, and the lessee shall execute a counterpart thereof, and every such lease shall contain a condition for re-entry on non-payment of the rent for a period of twenty-eight days after it becomes due, or for some less period to be specified in that behalf.

(d) This section substantially re-enacts 19 & 20 Vict. c. 120, s. 2, and 21 & 22 Vict. c. 77, ss. 2 and 4. By this section, however, the term for Irish agricultural leases is extended from twenty-one to thirty-five years, and leases at a small rent for the first five years are allowed.

This section does not give a general power, which must be exerciseable at the instance of some one, but a modified power, subject to the restrictions of the act as to who can petition, &c. (Taylor v. Taylor, 1 Ch. D. 432). It requires the court to have regard to the interests of all parties (Vine v. Raleigh, 24 Ch. D. 241).

(e) On a surrender and new grant under sect. 7 (post, p. 646), an unexpired underlease does not prevent the new lease taking "effect in possession" (Re Ford, 8 Eq. 309). ́A lease with a covenant to grant a new lease at the end of the term will not be sanctioned (Re Farnell, 33 Ch. D. 599). A mining lease may include any land necessary for working the minerals (Re Revely, 11 W. R. 744; Re Wallace, 1869, W. N. 66). Building leases have been authorized for 600 years (Re Cross, 27 Beav. 592); or for 999 years (Re Carr, 9 W. R. 776).

(f) In estimating the "best rent," the value of a surrendered lease

40 & 41 Vict.

c. 18, s. 4.

c. 18, s. 4.

40 & 41 Vict. may be taken into account (Re Rawlins, 1 Eq. 286). Where a building agreement provided that part of the land was to be let at a peppercorn rent, the court considered that this act could not safely be resorted to for granting the leases (Cust v. Middleton, 3 D. F. & J. 33).

Leases of

(9) On the separate devolution of the surface and the minerals, the rent set aside will pass with the surface (Re Scarth, 10 Ch. D. 499).

Leases of infants' land may be granted (1) under this act (see sect. 41 infants' land. of the Conv. Act, 1881, ante, p. 606); or (2) under S. L. Act, 1882, ss. 59, 60, post, p. 711; or (3) under 1 Will. 4, c. 65; as to which, see Seton, 742, 4th ed.; Re Letchford (2 Ch. D. 719); Re Griffiths (29 Ch. D. 248); R. S. C. Ord. 55, r. 2 (9).

Form of order.

Leases may contain special covenants.

Parts of

For forms of orders under this section, see Seton, 1485 et seq., 4th ed. And see Re Boyd (I. R. 8 Eq. 56), for form of order sanctioning mining lease of infant's land.

Compare with the provisions of sections 4-15 of the present act, the powers of a tenant for life under sections 6-17 of the S. L. Act, 1882, post, p. 680 et seq.

5. Subject and in addition to the conditions herein before mentioned, every such lease shall contain such covenants, conditions, and stipulations as the court shall deem expedient with reference to the special circumstances of the demise (h).

(h) The court will not under this section sanction a covenant in a lease to grant a new lease at the end of the term (Re Farnell, 33 Ch. D. 599). See the S. E. Act Orders, No. 25 (post, p. 668), and Seton, 1491, 1492, 4th ed.

6. The power to authorize leases conferred by this act shall settled estates extend to authorize leases either of the whole or any parts of the settled estates, and may be exercised from time to time.

may be

leased.

Leases may be surrendered and renewed.

Power to authorize leases to

extend to preliminary contracts. Powers of leasing to in

clude powers

to lords of settled manors to give licences to their copyhold or customary tenants to grant leases. Mode in which leases

7. Any leases, whether granted in pursuance of this act or otherwise, may be surrendered either for the purpose of obtaining a renewal of the same or not, and the power to authorize leases conferred by this act shall extend to authorize new leases of the whole or any part of the hereditaments comprised in any surrendered lease (i).

(i) This section is a substantial re-enactment of the provisions of 19 & 20 Vict. c. 120, s. 5, and 21 & 22 Vict. c. 77, s. 5. See Re Ford (8 Eq. 309); Re Rawlins (1 Eq. 286).

For forms of order, see Seton, 1492, 4th ed.

8. The power to authorize leases conferred by this act shall extend to authorize preliminary contracts to grant any such leases, and any of the terms of such contracts may be varied in the leases.

9. All the powers to authorize and to grant leases contained in this act shall be deemed to include respectively powers to authorize the lords of settled manors and powers to the lords of settled manors to give licences to their copy hold or customary tenants to grant leases of lands held by them of such manors to the same extent and for the same purposes as leases may be authorized or granted of freehold hereditaments under this act.

10. The power to authorize leases conferred by this act may be exercised by the court either by approving of particular leases or by ordering that powers of leasing, in conformity with the

provisions of this act, shall be vested in trustees in manner 40 & 41 Vict. hereinafter mentioned.

c. 18, s. 10.

dence to be

11. When application is made to the court either to approve may be of a particular lease or to vest any powers of leasing in trustees, authorized. the court shall require the applicant to produce such evidence What evias it shall deem sufficient to enable it to ascertain the nature, produced on value, and circumstances of the estate, and the terms and an applicaconditions on which leases thereof ought to be authorized.

tion to authorize leases. After ap

shall be the

lessor.

12. When a particular lease or contract for a lease has been approved by the court, the court shall direct what person or per- proval of a sons shall execute the same as lessor; and the lease or contract lease, court executed by such person or persons shall take effect in all respects to direct who as if he or they was or were at the time of the execution thereof absolutely entitled to the whole estate or interest which is bound by the settlement, and had immediately afterwards settled the same according to the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct (4).

(k) Under this section the court has directed the tenant for life to execute the lease (Re Farnell, 33 Ch. D. 599).

For form of order, see Seton, 1491, 4th ed.

be vested in

13. Where the court shall deem it expedient that any general Powers of powers of leasing any settled estates conformably to this act leasing may should be vested in trustees, it may by order vest any such trustees. power accordingly either in the existing trustees of the settlement or in any other persons, and such powers, when exercised by such trustees, shall take effect in all respects as if the power so vested in them had been originally contained in the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct; and in every such case the court, if it shall think fit, may impose any conditions as to consents or otherwise on the exercise of such power, and the court may also authorize the insertion of provisions for the appointment of new trustees from time to time for the purpose of exercising such powers of leasing as aforesaid (1).

(7) This section is a re-enactment in similar terms of 19 & 20 Vict. c. 120, s. 10, the decisions under which are accordingly applicable to the present section.

It has been said that it is intended that the persons in whom the court vests leasing powers shall be the persons making the application (Vine v. Raleigh, 24 Ch. D. 241). General powers have been vested to grant the following leases: building leases, for 600 years (Re Cross, 27 Beav. 592), or for 999 years (Re Hoyle, 12 W. R. 1124; Re Elliott, 1879, W. N. 135); mining leases (Re Dorning, 14 W. R. 125; Folson v. Sheard, 5 Ch. Div. 19; Re Green, 10 Jur. N. S. 1098), together with way-leaves (Re Wallace, 1869, W. N. 66); leases in accordance with a model settled in chambers (Re Hemingway, 7 W. R. 279, see Re Chambers, 28 Beav. 653; A. G. v. Christchurch, 3 Giff. 514; Re Jersey, 9 W. R. 609). A general power was refused where some of the remaindermen opposed (Re Hutchinson, 14 W. R. 473).