c. 38, s. 46.

39 & 40 Vict.

c. 68.

rules of court within section seventeen of the Appellate Juris- 45 & 46 Vict. diction Act, 1876, as altered by section nineteen of the Supreme Court of Judicature Act, 1881, and may be made accordingly. (8.) The powers of the court may, as regards land in the c. 59. County Palatine of Lancaster, be exercised also by the Court of 44 & 45 Vict. Chancery of the County Palatine; and rules for regulating proceedings in that court shall be from time to time made by the Chancellor of the Duchy of Lancaster, with the advice and consent of a Judge of the High Court acting in the Chancery Division, and of the Vice-Chancellor of the County Palatine (g). (9.) General rules, and rules for the Court of Chancery of the County Palatine, may be made at any time after the passing of this act, to take effect on or after the commencement of this act (h).

(10.) The powers of the court may, as regards land not exceeding in capital value five hundred pounds, or in annual rateable value thirty pounds, and, as regards capital money arising under this act, and securities in which the same is invested, not exceeding in amount or value five hundred pounds, and as regards personal chattels settled or to be settled, as in this act mentioned, not exceeding in value five hundred pounds, be exercised by any county court within the district whereof is situate any part of the land which is to be dealt with in the court, or from which the capital money to be dealt with in the court arises under this act, or in connexion with which the personal chattels to be dealt with in the court are settled (i).

As to service, see R. S. L. Act, Nos. 4, 5, and 6 (post, p. 725).

Sub-sect. 6 gives the court discretion as to costs of parties to appli- Sub-sect. (6). cations under the act; and sect. 47 (post) mentions the sources from which Costs. such costs may be paid. There are also special provisions as to costs in sects. 32, ante, p. 696 (See Re Hanbury, 31 W. R. 784), 36, ante, p. 697, and 44, ante, p. 701. In all cases not provided for by the act or rules, the existing practice of the court as to costs applies to proceedings under the act (R. S. L. Act, No. 15, post, p. 726). Questions under the act have been decided in specific performance actions, where the rules as to costs in those actions have been followed (Hatten v. Russell, 38 Ch. D. 334; Marlbrough v. Sartoris, 32 Ch. D. 616). In one case an action was brought by a tenant for life against trustees and others to determine questions as to his title to sell under this act, in which he was given party and party costs (Sebright v. Thornton, 1885, W. N. 176; where see as to costs of mortgagees). As to costs of actions commenced by originating summons, in which questions under the act were determined, see Re Atkinson, Atkinson v. Bruce (30 Ch. D. 613); Re Strangways, Hickley v. Strangways (34 Ch. D. 433); Re Llewellin, Llewellin v. Williams (37 Ch. D. 328); Re Powell, Allaway v. Oakley (1884, W. N. 67).

The costs of a summons taken out in an administration action to decide questions under this act may be made costs in that action (Constable v. Constable, 54 L. T. 610; see Cardigan v. Curzon-Howe, 30 Ch. D. 540), or may be paid out of the estate (Taylor v. Poncia, 25 Ch. D. 651).

In the case of ordinary applications under the act, only the costs of a summons are to be allowed unless a petition be directed by the judge (S. L. Act Rules, No. 2, post, p. 725). The costs of petitions were allowed in Re Houghton (30 Ch. D. 102); Re Bethlehem Hospitals (30 Ch. D. 541, where see judgment).

As regards summonses, the costs of all parties of a summons by tenant for life, either wholly or partially successful, were paid out of the settled

45 & 46 Vict. c. 38, s. 46.

Costs of appeal.

Scale. Charges and expenses.

Payment of costs out of settled property.

estate (Re Morgan, 24 Ch. D. 117; Re Paget, 30 Ch. D. 165; see Re Ailesbury, 1892, 1 Ch. 548). For form of usual order in such case, see S. L. Act Rules, Form 3, post, p. 728. The tenant for life, however, may have to pay the costs of the mortgagees of his life estate (Re Smith, 1891, 3 Ch. 76; Sebright v. Thornton, 1885, W. N. 176; compare Cardigan v. CurzonHowe, 41 Ch. Div. 375). The costs of an unsuccessful summons by tenant for life may be paid out of the estate (Re Knatchbull, 27 Ch. D. 349; see Re James, 31 L. T. 596; Re Sebright, 33 Ch. D. 442). But the tenant for life may, if not successful, have to pay all the costs, if there is no fund available for the purpose (Re Beaumont, 58 L. T. 916). The costs of an unsuccessful summons by persons claiming to be tenant for life were paid out of the estate (Re Horne, 39 Ch. D. 84; see Re Atkinson, Atkinson v. Bruce, 30 Ch. D. 613).

Where on a summons taken out by the trustees it was decided that a tenant for life could not sell under the act, the tenant for life had to pay his own costs (Re Collinge, 36 Ch. D. 519). Where two trustees appeared by different counsel on opposite sides, both, having acted reasonably, were given costs out of the estate (Re Ailesbury, 1892, 1 Ch. 548). Trustees, however, who appeared by the same counsel as the tenant for life, on an application by him, had to pay their own costs (Re Broadwater, 53 L. T. 745). Under S. L. Act Rules, No. 14, post, p. 726, a person paying capital money into court may deduct costs of paying in (See Form 10). A purchaser taking out a summons in an action for leave to pay the purchasemoney into court was allowed to deduct his costs (Cardigan v. CurzonHowe, 30 Ch. D. 540).

All the costs of an appeal were given out of the estate when it was a case proper to be decided by the Appeal Court (Re Jones, 26 Ch. Div. 744; see Re Ailesbury, 1892, 1 Ch. 548). A person claiming to be tenant for life had to pay all the costs of an unsuccessful appeal (Re Strangways, Hickley v. Strangways, 34 Ch. Div. 433). A tenant for life paid his own costs of an unsuccessful appeal, and a remainderman paid his own costs, the trustees being given costs out of the estate (Re Sebright, 33 Ch. D. 445). Where the trustees and remainderman appealed against an order sanctioning a sale under sect. 37, the appeal was dismissed with costs (Re Radnor, 45 Ch. Div. 423).

Costs were allowed on the higher scale in Re Chaytor (25 Ch. D. 651). Under the words "charges and expenses," the expenses of an abortive attempt to sell have been ordered to be paid out of the settled property Re Smith (1891, 3 Ch. 65).

(g) The powers of the High Court may, as regards land and estates in the County Palatine of Durham, be exercised by the Palatine Court (52 & 53 Vict. c. 47, s. 10).

(h) General rules as to applications in the High Court made under this section are given, p. 725, post.

() As to applications in the county court, see County Court Rules, 1889, Ord. 38.

47. Where the court directs that any costs, charges, or expenses be paid out of property subject to a settlement, the same shall, subject and according to the directions of the court, be raised and paid out of capital money arising under this act, or other money liable to be laid out in the purchase of land to be made subject to the settlement, or out of investments representing such money, or out of income of any such money or investments, or out of any accumulations of income of land, money, or investments, or by means of a sale of part of the settled land in respect whereof the costs, charges, or expenses are incurred, or of other settled land comprised in the same settlement and subject to the same limitations, or by means of a

c. 38, s. 47.

mortgage of the settled land or any part thereof, to be made by 45 & 46 Vict. such person as the court directs, and either by conveyance of the fee simple or other estate or interest the subject of the settlement, or by creation of a term, or otherwise, or by means of a charge on the settled land or any part thereof, or partly in one of those modes and partly in another or others, or in any such other mode as the court thinks fit (j).

(j) See general note as to costs under sect. 46 (ante, p. 703), Re Smith (1891, 3 Ch. 165), and see form of summons in Re Aylesford (32 Ch. D. 163).

of Land Com

48.-(6.) The Land Commissioners shall, by virtue of this Constitution act, have, for the purposes of any act, public, local, personal, or missioners; private, passed or to be passed, making provision for the execu- their powers, tion of improvements on settled land, all such powers and &c. authorities as they have for the purposes of the Improvement 27 & 28 Vict. of Land Act, 1864; and the provisions of the last-mentioned c. 114. act relating to their proceedings and inquiries, and to authentication of instruments, and to declarations, statements, notices, applications, forms, security for expenses, inspections, and examinations, shall extend and apply, as far as the nature and circumstances of the case admit, to acts and proceedings done or taken by or in relation to the Land Commissioners under any act making provision as last aforesaid; and the provisions of any act relating to fees or to security for costs to be taken in respect of the business transacted under the acts administered by the three several bodies of commissioners aforesaid shall extend and apply to the business transacted by or under the direction of the Land Commissioners under any act, public, local, personal, or private, passed or to be passed, by which any power or duty is conferred or imposed on them (k).

(k) Sub-sects. 1-5 inclusive, constituting the Land Commissioners for England, have been repealed by 52 & 53 Vict. c. 30, s. 13. By the same act the powers and duties of the Land Commissioners for England under this act have been transferred to the Board of Agriculture, see sects. 2 and 11 of the last mentioned act.

49.-(1.) Every certificate and report approved and made by Filing of the Land Commissioners under this act shall be filed in their certificates, &c. of comoffice. missioners.

(2.) An office copy of any certificate or report so filed shall be delivered out of their office to any person requiring the same, on payment of the proper fee, and shall be sufficient evidence of the certificate or report whereof it purports to be a copy.

XII.-RESTRICTIONS, SAVINGS, AND GENERAL PROVISIONS.

assignable;

50.-(1.) The powers under this act of a tenant for life are Powers not not capable of assignment or release, and do not pass to a person contract not as being, by operation of law or otherwise, an assignee of a to exercise tenant for life, and remain exerciseable by the tenant for life powers void.

45 & 46 Vict. after and notwithstanding any assignment, by operation of law or otherwise, of his estate or interest under the settlement.

c. 38, s. 50.

Prohibition

or limitation against exercise of

powers, void.

(2.) A contract by a tenant for life not to exercise any of his powers under this act is void.

(3.) But this section shall operate without prejudice to the rights of any person being an assignee for value of the estate or interest of the tenant for life; and in that case the assignee's rights shall not be affected without his consent, except that, unless the assignee is actually in possession of the settled land or part thereof, his consent shall not be requisite for the making of leases thereof by the tenant for life, provided the leases are made at the best rent that can reasonably be obtained, without fine, and in other respects are in conformity with this act.

(4.) This section extends to assignments made or coming into operation before or after and to acts done before or after the commencement of this act; and in this section assignment includes assignment by way of mortgage, and any partial or qualified assignment, and any charge or incumbrance; and assignee has a meaning corresponding with that of assignment (7).

() As to assignments or charges in consideration of marriage, or by way of family arrangement, see S. L. Act, 1890, s. 4 (post, p. 721). The bankruptcy of a tenant for life does not prevent the exercise of his powers under this act (Re Mansel, 1884, W. N. 209; Re Ailesbury, 1892, 1 Ch. 535). The court has refused to sanction the sale of a mansion-house without the consent of the tenant for life's mortgagees (Re Sebright, 33 Ch. D. 429), which they are free to give or withhold (Cardigan v. CurzonHowe, 40 Ch. D. 341).

The tenant for life's conveyance is subject to charges as mentioned in sect. 20, ante, p. 686, where see note.

As to a tenant for life's covenant, see Re Hale and Smyth (55 L. T. 151); quoted ante, p. 677.

In connection with the latter part of sub-sect. (1), see sect. 2 (7) (ante, p. 675); and compare 23 & 24 Vict. c. 145, s. 31 (ante, p. 565), and the note as to the extinguishment of powers appendant (ante, p. 296).

51.-(1.) If in a settlement, will, assurance, or other instrument executed or made before or after, or partly before and partly after, the commencement of this act a provision is inserted purporting or attempting, by way of direction, declaration, or otherwise, to forbid a tenant for life to exercise any power under this act, or attempting, or tending, or intended, by a limitation, gift, or disposition over of settled land, or by a limitation, gift, or disposition of other real or any personal property, or by the imposition of any condition, or by forfeiture, or in any other manner whatever, to prohibit or prevent him from exercising, or to induce him to abstain from exercising, or to put him into a position inconsistent with his exercising, any power under this act, that provision, as far as it purports, or attempts, or tends, or is intended to have, or would or might have, the operation aforesaid, shall be deemed to be void.

(2.) For the purposes of this section an estate or interest. limited to continue so long only as a person abstains from exercising any power shall be and take effect as an estate or

interest to continue for the period for which it would continue 45 & 46 Vict. if that person were to abstain from exercising the power, dis- c. 38, s. 51. charged from liability to determination or cesser by or on his

exercising the same (m).

(m) This section was not intended to enlarge a particular estate not properly an estate for life (Re Hazle, 29 Ch. Div. 84). To make it apply there must be found in the settlement a limitation, which but for the attempted prohibition would constitute a tenant for life within this act (Re Atkinson, Atkinson v. Bruce, 31 Ch. Div. 581).

A condition of forfeiture for non-residence does not prevent a lease of a mansion-house (Re Thompson, 21 L. R. Ir. 109), or a sale (Re Paget, 30 Ch. D. 162; see Re Brown, 27 Ch. D. 179), and does not attach to the proceeds of sale (Re Paget, sup.) But such a condition is not rendered void under this section unless it interferes with the exercise of the powers of the tenant for life (Re Haynes, Kemp v. Haynes, 37 Ch. D. 307).

52. Notwithstanding anything in a settlement, the exercise Provision by the tenant for life of any power under this act shall not against for

occasion a forfeiture.

feiture.

53. A tenant for life shall, in exercising any power under this Tenant for act, have regard to the interests of all parties entitled under the life trustee for all parties settlement, and shall, in relation to the exercise thereof by him, interested. be deemed to be in the position and to have the duties and liabilities of a trustee for those parties (n).

(n) The object of this section is to protect the material interests of the parties entitled, and to prevent the tenant for life from doing anything in the exercise of his powers which will damage those interests (Re Ailesbury, 1892, 1 Ch. 540). He should consider not merely pecuniary interests but also sentimental feelings (Ib. 536, 541). Further, he is bound to exercise his discretion as if he were an independent trustee for himself and all the other members of the family (Re Radnor, 45 Ch. Div. 417). He should consider whether he is unduly prejudicing any party; but in the absence of reason for supposing the discretion to be unfairly exercised, that discretion ought to prevail (Re Stamford, 43 Ch. D. 95; Re Radnor, 45 Ch. D. 417; Re Ailesbury, 1892, 1 Ch. 531). He may exercise his powers for his own benefit (Re Sebright, 33 Ch. D. 436; Wheelwright v. Walker, 23 Ch. D. 759); but not for his own benefit solely, or for the benefit of a stranger (Cardigan v. Curzon-Howe, 30 Ch. D. 539; Re Chawner, 1892, 2 Ch. 195). The fact that he gets a benefit is not sufficient to prevent him from exercising the requisite discretion (Re Stamford, 56 L. T. 484).

The duty imposed by this section on the tenant for life does not affect a purchaser's title (Re Ailesbury, 1892, 1 Ch. 536); but the tenant for life will be answerable for the improper or improvident exercise of his powers (Ib.; Re Marlborough, Marlborough v. Marjoribanks, 32 Ch. D. 514; see Hatten v. Russell, 38 Ch. D. 345; Wheelwright v. Walker, 23 Ch. D. 762; Norton v. Johnstone, 30 Ch. D. 651). The tenant for life, however, has under this section rather the responsibilities than the rights of a trustee (Re Llewellin, Llewellin v. Williams, 37 Ch. D. 325; see Cardigan v. CurzonHowe, 41 Ch. Div. 379), and accordingly is not entitled to all costs and expenses (Sebright v. Thornton, 1885, W. N. 176; Cardigan v. CurzonHowe, 41 Ch. Div. 375; see Re Beck, 24 Ch. D. 608; Re Llewellin, sup.) See further as to the costs of the tenant for life, the note to sect. 21, subsect. (x.) (ante, p. 689), and the note to sect. 46 (ante, p. 703).

54. On a sale, exchange, partition, lease, mortgage, or charge, General protection of a purchaser, lessee, mortgagee, or other person dealing in good purchasers, faith with a tenant for life shall, as against all parties entitled &c.