« SebelumnyaLanjutkan »
UPON TRUST, to lay out and invest the surplus in their or 1876. his own name or names in the parliamentary stocks or
funds of Great Britain, or upon real securities at interest, with power to vary and transpose the same from time to time as often as they or he should think fit, and to pay the interest, dividends and annual produce thereof to his wife, said Jane Parsons, during her life, and after her decease
upon the trusts therein mentioned. AND THE TESTATOR declared that his said trustees or trustee might postpone the sale and conversion of his real and personal estate, or any part thereof, as long as they should think fit, but that his real estate should be considered and treated as personalty, and that until such sale and conversion, his said trustees or trustee should pay and apply the rents, profits, and annual income of his real and personal estate, or of so much thereof as should for the time being remain unsold or unconverted, upon the trusts and for the purposes by his said will declared of and concerning the interest, dividends, and annual income of the proceeds of such sale and conversion as thereinbefore mentioned. AND THE TESTATOR appointed said Henry Thomas and Richard Goodchild, and his wife, said Jane Parsons, executors of his said will.
Executed in the presence of, and attested by two witnesses.
Oct. 20, THE SAID John Parsons died. 1879.
THE WILL of the said John Parsons was proved by said Henry 1879.' Thomas, Richard Goodchild, and Jane Parsons, the executors
and executrix thereof, in the Principal Registry of the Probate Division of Her Majesty's High Court of Justice.
NOTE.-In preparing Abstracts the following is the order which is generally
1st Margin. The dates of events and of documents abstracted.
3rd Margin. The recitals, habendums.
5th Margin. Parcels, estate clauses, general words, exceptions and reservations, execution and attestation of documents, probates of wills.
Many practitioners, however, put covenants in the 4th margin (if long), or in & 6th margin (if short), and general words also in the 6th margin. (Moore on Abstracts, p. 78.)
PAGE I. · OF ACKNOWLEDGMENT
Real Estate by Acknowledgment 209
211 Powers under Settled Estates
Act, 1879, and Settled Land
212 Chattels Real
212 Chattels Personal
213 Choses in Action
213 Powers of Appointment 215
PAGE Disposition in Equity-continued. Cannot be got rid of by Acknowledgment
228 Statutory Powers of the Court.. 229 Disposition of Separate Property --Legal Estate.
230 Trust Estates
232 The Fines and Recoveries Act
(3 & 4 Will. 4, c. 74), ss. 77
234 Conveyancing Act, 1882 (45 of 46 l'ict. c. 39), s. 7
242 Rules of December, 1882, under
the Conveyancing Act 245 Malins' Act (20 & 21 Vict.c. 57) 249
Disposition in Equity-
216 Separate Trade ....
217 Equity to a Settlement.
217 Where the Right attaches 218 Amount Settled
219 Form of Settlement
220 Separate Property by StatuteThe Divorce Acts ...
221 Married Women's Property Act, 1870
224 Married Women's Property Act, 1882
225 Restraint on Anticipation-how created
II. - OF STATUTORY ACKNOW
LEDGMENT OF THE RIGHT OF
DUCTION OF, DEEDS.
251 Effect of the Section.
253 Nature and Effect of a Statutory Acknowledgment
254 Meaning of “ Retain".....
... 254 No Liability to Damages under
an Acknowledgment.. 255 Costs
256 Statutory Undertaking .
256 Whether Trustees should give an Undertaking..
256 As to Mortgagees
1.-OF ACKNOWLEDGMENT BY MARRIED WOMEN AND THEIR
POWERS OF DISPOSITION, INTER Vivos. In the course of the following remarks on Acknowledgments by Married Women, it will be convenient
Litt. 29 a.
to say something on the subject of the powers of Acknowledgdisposition possessed by married women inter vivos, by Married and to refer the reader to tìis place whenever any question as to those powers occurs in this work.
The powers of disposition granted to married Real estate. women by the common law are exceedingly limited. A wife's real estate is held by her husband in her right during the marriage, and he alone can dispose of the rents and profits of it: Bac. Abr. tit. Baron and Feme (C.), 1. He is also entitled to his estate by the curtesy, in case of issue born of the marriage, for the rest of his life if he survive his wife: Co.
It is only her reversionary real estate, beyond the estate for life, and subject to the estate by the curtesy, of which she can dispose at all, and this not without the concurrence of her husband. But to protect the wife from his undueinfluence the law did not allow her to dispose of her reversionary real estate until it had been ascertained that she did so voluntarily. This was formerly done by means of a fine or recovery, Bac. Abr. tit. Fines; but, since 3 & 4 Will. 4, c. 74, by acknowledgment. The object of acknowledgment, like that of the fine and recovery, is to protect the wife against the husband's influence. His concurrence is rendered necessary for the protection of himself and his heirs. See Goodchild v. Dougal, 3 Ch. D. 650. The court accordingly will Acknowledgnot supply the want of an acknowledgment by a pensed with. married woman, as to do so would be to deprive her of the protection afforded her by law: Lassence v. Tiernay, 1 M. & G. 554; 14 Jur. 182. But where an order has been obtained under sect. 91 of the Fines and Recoveries Act (set out below, p. 241), dispensing with the husband's concurrence, a conveyance by the wife without acknowledgment is valid : Goodchild v. Dougal, ubi supra. The wife of a convict or man who has abjured the realm may act as if her husband were dead: Co. Litt. 132; see also Ex parte Franks, 7 Bing. 762. By custom of the city of London and some other places a married woman, on being privately examined before the mayor, may bind herself by deed acknowledged and enrolled according to the custom of the city or borough:
B.- VOL. I.
Acknowledg- 4 Cruise Dig. tit. xxxii. ch. 2, pl. 33. Where an Act by Married of Parliament authorizes the purchase of land in
which a feme covert is interested, and gives the court authority to distribute the purchase-money, the exercise of that power is in lieu of acknowledgment: Ex parte Ellison, 2 Y. & C. 528. But the statute 16 & 17 Vict. c. 70, does not enable the Lord Chancellor to direct the committee of a lunatic married woman to convey real estate, which if sane she could only dispose of by acknowledgment: Re Stables, 12 W. R. 513. A married woman can elect so as to affect her interest in real estate without acknowledgment, and where she has so elected the court can order a conveyance accordingly: Barrow v. Barrow, 4 K. & J.409; 4 Jur., N. S. 1049: Smith v. Lucas, 18 C. D.531.
By statute 8 & 9 Vict. c. 106, s. 7, a married perty acknowledgment will woman can disclaim (a) by acknowledgment, and, by
sect. 7, her contingent interest in realty may be disposed of in like manner. It seems that a married woman might have disposed of such an interest by acknowledgment before the passing of the last-named Act, although neither a man nor a feme sole could before it dispose of such interest: Crofts v. Middleton, 8 De G., M. & G. 192; 2 Jur., N. S. 528; 23 L. J., Ch. 513. The combined force of sects. 1 and 77 of the Fines and Recoveries Act, enables the married woman to dispose of nearly every interest connected with land. The definition of estate" in sect. 1 is as follows: "the word estate' shall extend to an estate in equity as well as at law, and shall also extend to any interest, charge, lien, or incumbrance in, upon or affecting lands, either at law or in equity, and shall also extend to any interest, charge, lien, or incumbrance in, upon or affecting money subject to be invested in the purchase of lands:” Whererealestate was devised upon trust for sale, and to pay the proceeds to a married woman, it was held she could dispose of it under this Act: Briggs v. Chamberlain, 11 Hare, 67. And where personalty has been invested in real estate in breach of trust, a married woman can dispose of it by acknowledgment: Durrant v. Stoner
(a) The Irish statute contains the word “disclaim": 4 & 5 Will. 4, c. 92, s. 68.
(C. A.), 18 Ch. D. 106. But where the married woman Acknowledg. has only a share in the distribution, and the legal by Married estate is in the trustees, she cannot be bound by Women. acknowledgment: Franks v. Bollans, L. R., 3 Ch. 717; Re Newton, 23 Ch. D. 181.
By sect. 40 of the Fines and Recoveries Act it is, Estate tail. inter alia, provided that:
"If the tenant in tail making the disposition shall be a 3 & 4 Will. 4, married woman the concurrence of her husband shall be neces. c. 74, s. 40. sary to give effect to the same; and any deed which may be executed by her for effecting the disposition shall be acknowleged by her as hereinafter directed” (6).
By 4 & 5 Vict. c. 38, s. 5, which provides for Sites for donations of sites for schools, it is enacted that:
"Where any married woman shall be seised or possessed of or entitled to any estate or interest, manorial or otherwise, in land proposed to be conveyed for the purposes of this Act, she and her husband may convey the same for such purposes by deed without any acknowledgment thereof."
There seems to be no doubt that it was intended Dower. to empower women, married before 1834, to bar their dower by this statute, though in framing the section the right of dower is not scientifically provided for: Sugden's Real Property Statutes, 2nd ed. 234; Dent v. Clayton, 12 W. Ř. 903.
Copyholds to which the husband is entitled in Copyholds. right of his wife at law are not within the Act (see sect. 77). On surrender the wife is examined according to the custom of the manor: Driver d. Perry 5. Thompson, 4 Taunt. 293; Doe d. Shelton v. Shelton, 3 Ad. & E. 265. Equitable estates in copyholds are provided for by sect. 90.
If for any reason it is not convenient to comply Leases. with the conditions of the Settled Estates Act, 1877,
(6) As to disentailing deeds generally, see post, Art. DISENTAILING DEEDS. A married woman, tenant in tail, executed, with the concurrence of her husband, a disentailing deed, which was enrolled under the Act within six months, but was not acknowledged by her till long afterwards. Held, that acknowledgment need not precede the enrolment, and that the deed was effectual: Ex parte Tarerner, 7 D., M. & G. 627.; 1 Jur., N. S. 1194.