and Conveyancing Act ; (6) power for husband (and after his
death for trustees) to mortgage for improvements; (7) hus-
l 2
148 THE student's guide to the law of
baud to be the peisoii to appoint new trustees ; (8) any
special clauses desired ; (9) settlement to be void unless
marriage takes place within 12 months. (Prideaux, Vol. II.)
Q. Sketch in outline a marriage settlement of £5,000 con-
sols helonging to the %oife, ujpon usual trusts, omitting all
clauses and iwivers sufficiently 'provided for by stutute.
A. Date; Parties — (1) intended husband, (2) intended
wife, (3) trustees; Kecitals— (1) of intended marriage, (2) of
agTeement for settlement, (3) of transfer of consols to trustees ;
Testatum— Declaration that trustees should hold consols {n)
until marriage, in trust for wife, and [h) after marriage, upon
the following trusts, i.e., (I) Trusts to retain, or sell and
invest, with power to vary investments; (2) Trust to pay
income to wife for life, for her separate use without power of
anticipation, with remainder to husband for life ; (3) Trust in
remainder as to corpus and income for children as husband
and wife, or survivor, appoint, and, in default of appointment,
equally — sons at 21, and daughters at 21 or marriage, with a
hotchpot clause ; (4) Trusts (on default of issue) for wife
surviving coverture absolutely, but otherwise as wife by will
appoints, and in default of appointment to her next-of-kin
under the statutes excluding husband. Then come — iVgree-
ment to settle future acquired property on like trusts, if so
intended; Investment Clause; Power to appoint new trustees
to be vested in husband and wife and survivor; Solicitor
trustee to charge costs ; Settlement to be void unless marriage
within 12 mouths : Testimonium (Prideaux, Vol. 11.) If the
settlement were of the hus])aud"s property, he would have
the first life interest, and the trust ("4) on default of issue
would simply be for him absolutely.
Q. What is the object of adding a hotchpot clause to powers
of appointment aiaong children^ Shmv hoiv such a cUmse
may operate favo a v ably toivards the rejjresentatives of a child^
dying before appointment.
A. To prevent a child to whom an appointment has been
EEAL AND PERSONAL PBOPERTY. 149
made taking any share in the unappointed funds without
bringing the appointed share into account. Under such a
clause, the representative of such child will share the unap-
pointed fund with the children to whom no appointments
have been made ; whereas in the absence of the clause, the
children to whom appointments have been made will also be
entitled to share in the unappointed funds.
Q. How can copyholds, leaseholds, and personal chattels be w
settled to accompany freeholds in strict settlement ?
A. Copyholds should be surrendered to the use of trustees
as joint tenants of a customary estate in fee simple upon
trusts ; and leaseholds and personal chattels should be
assigned to the trustees absolutely to be held upon trusts
and subject to powers and provisions — corresponding as
nearly as law and circumstances permit with those relating
to the freeholds. But as regards leaseholds and chattels,
there must be a provision that they shall not vest absolutely
in a tenant in tail by purchase unless he or she attains 21.
Q. (a) Can an infant, and if so, at ivhat age, make a -~^
valid and binding settlement on marriage, and if so, hotu ?
(b) A 'married m,an conveyed an estate to trustees upon trust
for his tvife and children, and aftenrards agreed to sell the
same estate for value to a piirchaser with notice of the settle-
ment. Can the pmrchaser insist upon having the estate, or is
the settlement valid as against him f (c) ^1, upon his
marriage, settled << pari of his own property ujyon trust for
himself urdil he should dispose of the same, or become bank-
rupt. He afterwards became bankrupt. Would such a
settlement be binding upon, his trustee in bankruptcy ?
A. (rt) An infant not under 20, if a male, or 17, if a
female, can make a binding settlement on his or her marriage,
with the sanction of the Court of Chancery under 18 & 19
Vict., c 43 ; but if such infant is a tenant in tail, and either
bars the entail or exercises a power of appointment, he must
attain 21 fcjr tin- scttlcincnt to be good. If an infant makes a
^^^i,.^^ /Vv-.jM^u. -^*^- /.^fS -^-S p^
150 THJ': student's guidp: to the law of
settlement without the sanction of the Court he may avoid it
on coming of age, but if the infant does not avoid it within a
reasonable time after coming of age then he or she will be
bound by it (Carter v. Silber, 61 L. J., Ch., 401). ih) If the
settlement is really a voluntary one, the settlement will be void
as against the purchaser under '27 Ehz., c, 4.(^ (c) No ;
such a settlement will not be binding on the trustee. If
however, A acquired any property with his wife on the
marriage, the settlement will be considered to be made with
her property, and be valid up to the value of the property so
received. (Prideaux, Vol. II.)
Q. Note the effect of marrkuje upon the lu if &s freeholds, lease-
holds, choses in action, and choses in possession respectively.
A. Bij tlic common law — the husband became entitled to
receive the rents and profits of the freeholds during the
coverture, and, if he survived her, might have an estate by
curtesy for his own life ; he could deal with the leaseholds
in any way except dispose of them by will, and, so far as he
did not dispose of them inter vivos, they passed to the sur-
vivor ; the choses in possession vested absolutely in him ;
and the choses in action vested absolutely in hhn, provided
he reduced them into possession during the coverture, other-
wise they passed to the survivor, but, if he survived, he took
as administrator. Equitij permitted property to be given to
the separate use of a woman, in which event the husband
could only take (1) what the wife chose to give him, and (2)
curtesy out of undisposed of freeholds of inheritance, and
(3) undisposed of chattels real as her administrator ; it also
permitted the restraint on anticipation, which prevented her
giving him anything beyond the income as it fell due ; it
also gave the wife her equity (or right) to a settlement out
of her choses in action, which the husband could only reduce
into possession by the aid of a court of equity ; and it set
aside a secret conveyance or settlement by a woman pending
her marriage- as a fraud on marital rights, except in a few
EEAL AND PERSONAL PROPERTY. 151
rare instances. The Legislature, by 33 and 34 Vict., c. 93,
enacted that (1) the wages, earnings, and savings of every
married woman should be lier separate property ; and (2)
that all personalty acquired as next-of-kin, and money not
exceeding £'200 under a deed or will, and the rents and
profits of freeholds and copyholds acquired by descent, should
be separate property where the marriage was after the
9th August, 1870, and the property was acquired during
coverture. Lastly, by 45 & 46 Vict., c. 75, it is enacted
(1) that all real and personal property belonging to a
woman married after 1882, or coming to her during the
marriage, shall be her separate property ; and (2) that where
a woman was married before 1883, all property, "her title
to which, whether vested or contingent, and whether in
possession, reversion, or remainder shall accrue" after
1882, shall be separate property. In construing the words
in inverted commas, the Court of Appeal held, in Reid v.
Keid, 55 L. J., Ch., 294, that where a reversionary interest
was acquired before 1883 by a married woman, but it fell
into possession after 1882, the Act does not make this
separate property, as there can only be one accrual of title.
Q. What p<nver of testameutdry disposition of real and
personal propertu respectively had a married ivoraan before V
\8t January, 1883, a lal what additional power of testamentary
disposition does she possess since that date?
A. ]3eforethat date — a married woman could only make a
will of real or personal estate settled to her separate use as of
right ; and a will of personalty, which was not separate property,
with her husband's consent, which he might revoke at any
time before probate. Since that date, she has also the
added powers (1) if married before 1883, of making a will
of all property coming to her during tlie coverture after 1882,
and (2) if married after 1882, of willing all her property at
the date of, and also acquired during, the coverture. {In re
Price, Stafford v. Stafford, 28 Ch. D., 709; 54 L. J., Ch., 509.) ?-W'
152 THE student's guide to the law of
' Q. Hoiv far is a prooiblou that a life interest given to any
person under a. settlement shall cease on bankruptcy or aliena-
tion valid ?
A. Unless there is a gift over, it is simply void. But
assuming there is a gift over, then (1) if the property settled
comes from the life tenant, the gift over is good against his
alienees, but void against the trustee under his bankruptcy ;
but (2) as regards property coming from any other person
{e.g., where such an interest is given to the husband in a
settlement of the intended wife's fortune) the provision is
altogether good ; and (8) if a husband has received part of
his wife's fortune on the marriage, and settled his own
property with such a life interest for himself, the provision is
good to the extent of the wife's fortune which he so received.
(Prideaux, A^ol. 11., 250, 251.)
Q. What are the requisites and incidents of doiuer and
freebench f
A. Bower is a life estate which a widow takes in a portion
(usually a third) of her husband's lands of inheritance. At
Common Law, it attached the instant the husband became
solely seised in possession, unless barred by a conveyance to
user to bar dower or jointure or a fine. As regards marriages
since 1834, its requisites under 8 & 4 AVm. 4, c. 105, are (1)
marriage, (2) death of the husband, leaving some estate of
inheritance (either legal or equitable) not disposed of by him,
and without his having barred the dower, which he may do
by a simple declaration in any deed or his will. Freebench
is dower out of copyholds. Its requisites are (1) a custom
in the particular manor allowing it, (2) death of the husband
leaving some estate undisposed of by him out of which,
according to the custom, she may claim it. 8 & 4 Wm. 4,
c 105, does not apply to freebench.
Q. Describe tJie nature and incidents of a tenancy by the
curtesy.
A. It is a life estate which the husb;ind takcb in all his
REAL AND PERSONAL PROPERTY. 153
wife's lands of inheritance in possession, of which she was
the legal or equitable owner in severalty or in common, pro-
vided (1) he survives her, (2) there was a legal marriage sub-
sisting at her death, and (3) issue born alive capable of
inheriting. It attaches to separate use property, unless the
wife has disposed of it by deed or will. (Hope v. Hope,
61 L. J., Ch., 441.) As to gavelkind lands, it is independent
of the birth of issue, but only extends to a moiety, and
ceases on re-marriage. A tenant by curtesy (but not a
tenant in dower) has all the powers of a tenant for life under
the Settled Land Acts.
Q. By 'what methods cun doiver be barred ? State the rule â– ^
as to lef/acies in satisfaction of dower.
A. If the parties were married since 1st January, 1834,
the dower may be barred by a simple declaration under
3 & 4 Wm. 4, c. 105, contained in any deed or will, or by any
disposition of the lands. If prior to that date, it can be barred
by legal jointure, a fine, or uses to bar dower. The point as
to a legacy in satisfaction of dower would practically only
apply to persons married on or before 1st January, 1834.
Where the will contains provisions inconsistent with the
right to dower, the legacy will satisfy it in the sense that she
will be put to her election and not allowed to claim the
dower and the legacy. Even at the present day if a husband^
married since 1833, dies intestate as to land, out of which his
widow would be dowable,but makes a will of personalty giving
her a legacy in lieu of dower, such a legacy is entitled to
priority over other legacies. (Greenwood v. Greenwood,
61 L. J.,Ch., 558.)
Q. What ivas the modern form of a limitation to uses to X ^
bar dotver, and in what does its efficacy e^ist ?
A. A general power of appointment was given to the
purchaser by limiting the land to such uses as he |^linuld
appoint — this enabled him to dispose of the fee^
without his wife's concurrence ; in default of an
>c
154 THE student's guide to the law of
appointment, the land was limited to the use of the purchaser
for life ; and on determination of that estate, by any means,
in the purchaser's life, a vested remainder was given to a
trustee and his heirs during the purchaser's natural life in
trust for him ; with an ultimate remainder to the use of the
purchaser and his heirs. \ The ef&cacy was that it prevented
dower attaching, for during the life of the purchaser he had
no estate of inheritance in possession because the vested
estate given to the trusteej prevented the legal life estate of
the purchaser merging in the legal fee simple remainder.
Q. What are a wife^s pioi-money, jointure, and parapher-
nalia ; and ivhat arrears of pin-money are recoverable by her
and her legal personal representative respectively f
A. Pin-money is a yearly allowance secured to the wife
by ante-nuptial settlement for dress and personal expenses
suitable to the position of the husband. The wife can
recover one year's arrears, unless the husband has paid all
her personal expenses, in which case she can recover nothing ;
unless she has complained and been assured by her husband
that she will have it ultimately, in which case she can
recover all the arrears. The wife's representatives cannot
(from the very nature of the property) recover any arrears.
Legal jointure is a competent livelihood of freehold for the
life of the wife at least, to take effect presently in possession
or profit after the death of the husband ; it was an effectual
bar of dower ; it had to be made to the wife directly and not
>''â– ''' to any one in trust for her, and in lieu of her whole dower,
and before marriage. Equitable jointure is a provision out
of freeholds lacking any of the above-mentioned particulars,
or a provision out of personalty ; and./, only put the wife to
her election between it and her dower. Paraphernalia com-
prise the wife's wearing apparel and ornaments and gifts of
jewels, itc, from her husband, to which she is entitled,
beyond her dower, provided the husband predeceases her
without having disposed of them in his life. They are liable
REAL AND PEKSOXAL PROPERTY. 155
to the husband's debts, and must carefully be distinguished
from separate estate. ,
12. — Incorporeal Hereditaments.
Q. Enumerate end classify the prlncixjal kinds of incor-
poreal heredyitarnerits.
A. According to Blackstone, incorporeal hereditaments
are chiefly of 10 sorts. 1. Advowsons. 2. Tithes. 3. Com-
mons. 4. Ways. 5. Offices. 6. Dignities. 7. Franchises.
8. Corrodies or pensions. 0. Annuities. 10. Kents. They
have been classified as 1. Appendant. 2. Appurtenant.
3. In gross.
Q. Mention the characteristics of corumons, (a) appendant ; -yL
(b) appurtenant ; (c) in gross.
A. Common apijendant arose from necessity, and was the
Common Law right of every free tenant of arable land to
depasture on the lord's wastes all cattle needed for tillage and
manurance of the land {i.e., horses, cattle, and sheep, which
are thence called commonable beasts) ; the number of beasts
put on was not to exceed as many as the common would
feed during the winter ; as it is of common right it need not
be prescribed for, and on a sale of part of the lands in respect
of which it arises, it can be apportioned ; and it passes along
with the lands in respect of which it arises. Common appur-
tenant is annexed to some corporeal hereditament, but is
against common right because it depends on a special grant
(either express or implied from long usage) ; it cannot be
apportioned, and fails altogether when it cannot be exercised
in its integrity ; it may be created at the present day ; and it
also passes along with the property in respect of which it is
claimed. Common in gross is the right of the owner to a
profit a prendre out of the lands of another, arising by express
grant to the commoner, and not as appendant or appur-
tenant to any corporeal hereditament ; it requires a deed for
its transfer. (See Tyrringham's Case.)
156 THE student's guide to the law of
Q. Explain the rule that rent-charges and rights of com-
mon appurtenant should he regarded as being " against com-
mon right" What consequences have been deduced from the
rule with respect to hereditaments of these kinds ?
A. They are not of common right, for they do not arise
by imphcation of law only as did common appendant, but by
express grant, or (as to common appurtenant) by prescription
or custom ; and, unlike common appendant, they may be
created at the present day. Common appendant was extin-
guished by purchase of all the lands over which the right
existed ; but rent-charges and commons appurtenant were
regarded as entire and issuing out of every part of the land
charged. Consequently, the purchase or release of any part
of the lands subject to a rent-charge, or common appurtenant,
destroyed the charge or common. By 17 & 18 Vict., c. 97,
the rent-charge was made apportionable, and by 22 & 28
Vict., c. 35, the release of a portion of the lands from the
rent-charge no longer destroys the whole rent-charge.
Q. What are the jjrincipjal methods by tvhich rights of
com^mon may be extinguished ?
A. By express release ; unity of seisin ; or abandonment.
Q. What is an easement? State luhid is meant by an
ajfirmative easement, and 'what is meant by a negative ease-
ment. Give an instance of each.
A. An easement is a privilege without profit which the
owner of one tenement, which is called the dominant tene-
ment, has over another, which is called the servient tene-
ment, to compel the owner thereof— (1) to permit to be done,
or (2) to refrain from doing, something on the servient tene-
ment for the advantage of the dominant tenement. The
former is called an affirmative easement, and the second a
negative easement. An instance of the former would be
where the owner of Whiteacre has a right-of-way over Black-
acre, he can compel the owner of Blackacre to permit him
to <To along the wav. An instance of the second would be
REAL AND PERSONAL PROPERTY. 157
where the owner of Whiteacre has ancient lights in a house
on his estate, he can restrain the owner of Blackacre from
doing any act on Blackacre which will de]3rive him of his
accustomed light and air.
Q. Explain prescription and ciLstowi ; continuous and dis-
coniinuous easements.
A. Prescription, which is personal, is for the most part
applied to persons being made in the name of a certain person
and his ancestors, or of those whose estate he held, or in
bodies politic or corporate and their predecessors ; hut a
custom, which is local, is alleged in no person, hut laid
within some manor ur other place. Continuous easements
are those of which the enjoyment is, or may be, continual
without the necessity of any actual interference by man, as a
waterspout, or right to light and air, or drains ; discontinuous
easements are those the enjoyment of which can only be had
by the interference of man, as rights-of-way or a right to
draw water.
Q. Under ivhat circinnsta-nces does tJiere arise a ivay of v^
necessity !â– How is it limited^ and by whom, is it to he selected.,
where more than one tvay is available ?
A. A way of necessity arises either where a man grants
a piece of land in the middle of his field, or where the grantor
conveys all the lands surrounding his field and retains
the field, provided in neither case an express right-of-way is
granted or reserved. It is limited to such a right-of-way as
will enal)le the owner of the close to enjoy it in the same
condition as at the time of the grant, e.g.., if the close is
arable or meadow, the owner may not put up houses and
claim a right-of-way to them for his tenants. (Corporation of
London v. Biggs, 18 Ch. Div., 798.) The grantee is restricted
to such one way as will be convenient for the reasonable
enjoyment of the premises ; but, subject to this rule, the
grantor is probably justified in assigning such a way as he
can best spare. (Woolrych on Ways, 34.)
158 THE student's guide to the law of
Q. Distinguish €€086171^7118 from tJiose rights ivhlch, thmtgh
similar to them in other respects, are not annexed to the
ownership of land.
A. The distinction is that easements are rights of pro-
perty enjoyed by a person as accessory to his ownership of
land, and for its convenience over the land of another, by
reason whereof the latter is bound to permit some definite
use (not involving participation in the soil or its produce) of
his land, or to refrain from some particular use of it ; whilst
an easement in gross is a right similar in extent but not an-
nexed to the ownership of land, and exists because of a
licence to do on another person's land that which, without
such licence, would be a trespass, and is not alienable, and
may be determined at any time by the withdrawal of the
licence. (Edwards, 297, 298.)
Q. Define the easem.ent of watercourse, and explain the
various methods by which it may he acquired.
A. The right which a man has to the benefit of the flow of
water in a defined channel. It may be acquired by express
grant, or implied grant, or prescription under 2 & 3 Wm. 4,
c. 71, or statute. (Sury v. Pigot, Indermaur's Conveyancing
and Equity Cases, 11.)
Q. By what means raay easements he extinguished ?
A. They may be extinguished by express release, by
Act of Parliament, by unity of seisin, or by abandonment.
As to abandonment, it is not necessary to show any definite
period of non-user ; it is not so much the duration of the
cesser as the nature of the act done by the grantee of the
easement, or of the adverse act acquiesced in by him and the
intention in him which either the one or the other indicates,
which are material. As to extinguishment by unity of seisin,
this will not occur where the easement is one of necessity, or
is some right arising ex jure naturcE. (Sury v. Pigot, and
Notes, Indermaur's Conveyancing and Equity Cases, 11.)
REAL AND PERSONAL PROPERTY. 159
Q. Explain tvl tat is 7)160.111 by prescription. What chanr/e — /^
lucis 'made by the Prescription Act f
A. Prescription means the acquisition of a title to an
incorporeal right by means of immemorial user, which implies
a grant. The right can be claimed either as being exercised
in gross by the claimant and his ancestors ; or, as being
exercised as appendant or appurtenant to lands held by the
claimant and his ancestors. Formerly a title by prescription
could only be acquired by enjoyment time out of mind, i.e.,
since the first day of the reign of Eichard 1 ; then the
judges established an artificial rule by which 20 years adverse
and miinterrupted enjoyment of an incorporeal hereditament
uncontradicted and unexplained, was cogent evidence from
which the jury should be conclusively directed to presume a
grant or other lawful origin of the possession. The Pre-
scription Act, 2 & 3 Wm. 4, c. 71, enacted that if the right is
claimed as appendant or appurtenant and not in gross —
rights to light are to be indefeasible after enjoyment without
interruption for 20 years, unless enjoyed by consent in writing ;
and that rights-of-way and other easements (except light)
are not to be defeated, after 20 years of such enjoyment by
merely showing the precise time when they began to be
enjoyed, and after 40 years are to be indefeasible; and as to
rights of common and other profits a prendre (except tithes,
rent, and services) fixed the periods of thirty and sixty years.
The time must be reckoned back from the date of action
l)rought ; and interruption must be acquiesced in for a year
after notice, or it is of no avail.
Q. What interest has the oivner of an advowson in the
parsonage house and fjlebe lands I If he sells the advowson
during « vacancy of the living, what result ensues ?
A. As patron, he enjoys the perpetual right of presenta-
tion to the benefice ; but he has no property or interest as
such in the parsonage house and glebe lands. The advowson