holds and customary freeholds ?
10. An estate may be the same as another in quality, and
yet different to it in quantity. What do you understand by this?
11. What difference (if any) is there in the case of free-
holds between a grant or devise to A, and a grant or devise
to A and his heirs ?
REAL AND PERSONAL PROPERTY. 49
12. Can personalty be limited by way of estates to one
and then to another ? What would be the effect of a grant or
devise of personalty to A for life, and then to B absolutely ?
1>5. It is desired that personalty shall be so settled that A
may enjoy it for his own life, then B, if he survives, foi his
life, and then that it shall go absolutely to a certain person.
In what way may this object be accomplished ?
14. Give an instance of the application of the maxim :
Cujiis est solum ejus est usque ad coelujii.
15. Explain the position of a tenant for life with regard
to the following three particulars : (a) waste ; (h) granting
leases ; (c) selling the estate.
• 16. Explain practically the effect of the Apportionment
Act 1870 (33 & 34 Vict., c. 35).
17. Wliat was originally, and what is now, the effect of a
grant of freeholds to A, and the heirs of his body ? Refer to
the statute on the subject, and explain how you account for
its having been passed.
18. By what words can you create an estate tail (a) in a
deed (6) in a will ?
19. How was the object of the statute Dc Bonis frus-
trated ? How is this frustration, originally accomplished in
a circuitous way, now effected '? Name the present authority.
20. What is the effect of a limitation of copyholds to A
and the heirs of his body ?
21. Explain the position of a tenant in tail with regard to
waste, showing in what respects his position is different if he
is a tenant in tail after possil)ility of issue extinct.
22. When is there a protector to a settlement, and what
are his powers and position ? How do you account for the
existence of such an office ?
23. What is a base fee, how may it be created, and
how may it be enlarged into an estate in fee simple
absolute '?
24. Lands are limited unto and to the use of A and his.
B
50 THE student's GUIDE TO THE LAW OF
heirs, in trust for B for life, and then to C and the heirs of
his body. Daring B's Hfe who would be the person to join
in the disentailing assurance ; and with regard to the parties
to so join in barring the entail, what difference, if any, would
there have been prior to the 3 & 4 Wm. 4, c. 74 ?
25. If A, having a remainder in fee after a life estate,
grants out of his remainder an estate to B in tail, is there
any protectorship here ?
26. What is the effect of a grant and devise respectively
to A and his heirs male ?
27. What difference is there, and why, in the case of
either of the following paying off an incumbrance upon the
inheritance : — (a) A tenant for life. (6) A tenant in tail in
remainder, (c) A tenant in tail in possession ?
28. What is an estate in fee simple ? How many kinds
of fee simple are there ? Is it correct to say that the owner
of a fee simple estate has an absolute property in it ?
29. Explain the object and effect of the statute of Quia
Emptores (18 Edw. 1, c. 1).
30. What was, and is, the position of an alien with regard
to holding property ?
31. What is necessary at the present day to constitute a
good gift of lands to a charity ? Can such a gift ever, and
if so, when, be made by will ?
32. Give a short history of the past and present law as to
judgments affecting land.
33. What circumstances led to the passing of the Statute
of Uses ? State its chief enactment, and show how its object
was frustrated.
34. What is the effect of a grant simply to A without
consideration, and why? What difference would it make if
it were unto and to the use of A ?
35. Grant to A to the use of B in trust for C. Explain
the rights and position of each, with reasons.
36. A cestui que trust of real and personal property
REAL AND PERSONAL PROPERTY. 51
respectively, dies intestate, and without heirs, or next of kin,
to whom does the property go ?
37. What were formerly, and what are now, the rights of
a husband in the following properties of his wife — {a) Her
freeholds ; (6) Her leaseholds ; (c) Her choses in possession ;
{d) Her choses in action ?
38. Define curtesy. What are the essentials to curtesy ?
What peculiarities are there with regard to it in copyholds
and in gavelkind land respectively ?
39. Define dower, and show the difference with regard to
it if the parties were married prior to or since the 1st January,
1834, both with regard to the right to it and the mode of
barring it.
40. Detail and explain the modern method of barring
dower when the persons were married prior to 1st January,
1834.
41. Distinguish between (a) a reversion and a remainder ;
and ih) a vested and a contingent remainder, giving an
instance of each.
42. How is it that although the Common Law rule was
different, yet at the present day an assignee of a reversion is
able to take advantage of the conditions of re-entry inserted
in the original lease ?
43. Explain the following : —Attornment, rent service,
rent charge, rent seek, quit rent, fee farm rent, rack rent.
44. What was formerly, and what is now, the effect upon
an underlease of the merger or surrender of its reversion ?
45. Explain the rule in Shelley's Case. Does it have any
application to personal property ?
46. Give the rules for the creation of contingent re-
mainders. With regard to one of such rules, what was the
object of inserting in settlements a limitation to trustees to
preserve contingent remainders ?
47. With regard to the san;e rule, what was the effect of
8(1-9 Vict., c. 106, sec. 8, and 40 \- 41 Vict., c. 33, respectively?
E 2
5'2 THE student's guide to the law of
48. Grant to A for life, and aftfer his decease to the
heirs of B. A dies during B's Hfetime. What heconies
of the estate V
49. Explain and illustrate the doctrine of cij _p?vs — {a)
as regards contingent remainders, {h) as regards charitable
bequests.
50. Define an executory interest. In what two ways may
an executory interest arise ? Why is it that it can only arise
in a deed by means of^he Statute of Uses ?
51. Distinguish between a shifting and a springing use
respectively, giving an instance of each.
52. Within what time must an executory interest arise?
What is the leading case on the subject ?
53. Give the provisions of the Thellusson Act (39 & 40
Geo. 3, c. 98), limiting the period for accumulation of income.
State particularly the exceptions in the Act.
54. What is the effect of a direction to accumulate
income exceeding the period allowed by the Thellusson
Act ? Kefer to the leading case on the point.
55. Define a power of appointment, showing how it
operates, and explaining why it properly comes under the
denomination of an executory interest.
56. Does an appointee, taking under a power, take simply
from the person exercising the power, or from the person
creating the power ? Explain your answer by illustrations.
57. What difference is there as regards the rule against
pei-petuities between a general and a special power respec-
tively ?
58. What is the effect under 12 & 13 Vict., c. 26, of
a lease made by a limited owner under a power, but not
strictly in conformity with the terms of that power ? What
would have been the position in such a case prior to the Act ?
59. A tenant for life mortgages his life interest. Does
tliis mortgage affect the power of leasing conferred on him
bv the Settled Land Act 1882 ?
REAL AND PERSONAL PROPERTY. 53
(JO. Powers may be clasbitied as (i) general and special,
(2) appendant, in gross, and collateral. Explain and instance
each of these.
61. With regard to powers, explain the effect of 1 Wm. 4,
c. 46, and 37 & 38 Vict., c. 37, respectively.
62. Define incorporeal property, and compare the mode
of conveying it with the original mode of conveying corporeal
property. Why can either property be now conveyed by deed
of grant ?
63. Define and compare rights of common and easements
respectively.
64. What do you understand by a 2)rojU a prendre? Give
an instance. What do you understand by n profit a prendre
being claimed as a que estate ?
65. What rights cannot be claimed by custom ?
66. Give an instance of an easement arising by necessity.
67. How many kinds of rights of common are there ?
Explain each kind.
68. With regard to an easement, explain what is meant
by tlie dominant and servient tenements respectively.
69. What are the chief ways in which an easement may
be extinguished V What is the one case in which unity of
possession will not extinguish an easement ?
70. With regard to the length of time of enjoyment that
will give a title either to a right of conimcm, or an easement,
state the provisions of the Prescription Act (2 A: 3 Wm. 4,
c. 71). What was the law on this point prior to that
Act?
71. What is an advowson? Jiow many kinds of advt)W-
sons are there V Distinguish between each .
72. Are advowsons and next presentations respectively,
real or personal property ?
73. What is the proper length of title to be shown to an
advowson ?
74. What are tithes? Distinguish between tithes, a tithe
,j4 the student's guide to the law of
rent charge, and a modus. Explain how it was that tithes
came into lay hands.
75. If a person having a right to tithes bought the land
out of which the tithes issued and subsequently resold that
land, would his right to tithes revive ? Does merger occur
of a tithe rent charge ?
76. What is a Eesignation Bond, and when is it vahd ?
77. Define simony, and refer to the point decided in the
case of Fox v. Bishop of Chester. What purchase of a
living by a clergjanan would be simoniacal, although not so
on the part of a layman ?
78. On the death of an incumbent explain the rights and
liabilities as to dilapidations as between his representatives
and the successor to the living.
79. What bearing respectively did the Statute of Frauds
(29 Car. 2, c. 3, sees. 1, 2, & 3), and the Eeal Property
Amendment Act 1845 (8 & 9 Vict., c. 106, sec. 3), have upon
leases ?
80. What is the effect of a parol lease for four years ?
81. A, having a lease for seven years, holds over after the
expiration of that lease. Explain his position directly the
lease expires, and how and why that position becomes altered
by the acceptance of rent by the landlord.
82. What is the effect of a yearly tenant not quitting in
pursuance of notice {a) when the notice is given by the land-
lord, and {h) when the notice is given by the tenant ?
83. What is the difference between privity of contract and
privity of estate? Give an instance of liability in respect
of privity of estate.
84. A, having but an interest consisting of a term of
seven years in land, professes to make a lease for twenty-one
years. In another case, having no interest at all, he pro-
fesses to make a like lease. In both cases he immediately
afterwards becomes possessed of the fee simple. State fully
in each case the position and rights of the lessee.
REAL AND PERSONAL PROPERTY. 55
85. State shortly the provision of the Convej^ancing Act
1881 with regard to forfeitures of leases for breaches of
covenant.
86. State the three most prominent alterations in the law
of descent introduced by the Inheritance Act, 3 & 4 Wm. 4,
c. 106.
87. How has the first rule of descent been amended by
22 & 23 Vict., c. 35, sees. 19, 20 ?
88. Explain the rule as to the admission of the half blood,
and compare the position of the half blood with regard to
realty and personalty respectively.
89. An estate descends to two daughters as co-parceners.
One of them dies leaving a son. To whom does her share
go, and why ?
90. Distinguish on an intestacy between persons taking
per stirpes and^er capita, giving an instance of each.
91. A person dies intestate, leaving (a) a wife and two
children, (h) two children and no wife or other relative, and
(c) a wife and no other relative. In what way in each case
will his personal property go V
92. A person dies intestate, leaving a wife, a father, and
a brother. How does his personalty go ?
93. A person dies intestate, leaving a mother, a brother,
and a sister. How does his personalty go ?
94. A person dies intestate, leaving a mother, a brother,
and two nephews, children of a deceased sister. How does
his personalty go ?
95. A person dies intestate leaving six nephews, five
of them being children of a deceased brother, and one
the child of a deceased sister. How does his personalty
go?
96. A person dies intestate leaving a nephew and two
grand nephews, the children of a deceased nephew. How
does bis personalty go ?
97. A person dies intestate leaving one child of a deceased
56 THE student's guide to the law of
son, five children of a deceased daughter, a wife, and a
father. How does his personalty go ?
98. What do you understand by hotchpot ? Illustrate
your answer.
99. Give the outline of an ordinary settlement of real
estate upon marriage, particularly pointing out how the
pin money, jointure, and portions respectively are provided
for.
1 00. Give the outline of an ordinary settlement of personal
estate upon a marriage. It is desired to settle personalty
upon marriage in the same way as if it were realty, viz., in
strict settlement. Can this be done ?
101. When, and in what way, and to what extent, can
infants make valid marriage settlements ?
102. On the death of a trustee under a settlement, in
what different ways may a new trustee be appointed ? On
whom does the trust property now devolve on death of a
trustee ?
103. What leases may, under the Settled Land Act 1882,
be made by the tenant for life? Is any consent or notice
necessary prior to leasing ?
104. The like question as regards a sale by the tenant for
life.
105. How may satisfied terms arise? With regard to
them, what is now the provision contained in 8 & 9 Vict.,
c. 112 ?
106. Are any special formalities necessary to be observed
in either an ante-nuptial or a post-nuptial settlement of
furniture ?
107. What do you understand by uses in strict settlement ?
108. Can a settlement of leaseholds ever be construed as
a voluntary settlement so as to be bad in the case of a subse-
quent sale of the property? Give reasons, pointing out in
what respects a settlement of such property is different from
a settlement of freeholds.
REAL AND PERSONAL PROPERTY. 57
109. Give a short history of the chief different instruments
which have from time to time been used to convey lands
i?ite)' vivos.
110. What is the proper mode of conveying copyholds on
a sale and on a mortgage respectively ?
111. What powers are, by the Conveyancing Act 1881,
conferred on mortgagees, and when do they respectively
arise ? Is it safe to rely on this Act, or should express
powers be inserted in the mortgage ?
112. What are the differences between the position of a
lessee and assignee of a lease respectively ?
113. Explain an interesse termini.
114. On a lease of a house is there any implied contract
by the landlord that it is reasonably fit for habitation? Kefer
to the Housing of the Working Classes Act 1890.
115. What is the title to be shown on an open contract
for the sale of a freehold and leasehold estate respectively ?
116. What is the title to be shown to lands which have
been the subject of an exchange ? Distinguish between the
cases of the exchange having been made prior to and since
1845.
117. Trace the position with regard to the making of a
will of lands from the earliest down to the present time.
118. The like, with regard to a will of personalty.
119. Are the following competent witnesses to a will : —
The executor, a creditor of the testator, a legatee under the
will, the husband or wife of any legatee, the child of any
legatee ?
120. State the different ways in which a will may be
revoked.
121. A makes a will devising Whiteacre to 1^, and subse-
quently contracts to sell Whiteacre, and then dies. What is
the position of B ?
122. When, under a general devise, did trust and
mortgaged estates pass ? What do the Conveyancing Act
58 THE student's GUIDE TO THE LAW OF
1881 and the Copyhold Act 1887 now provide on the
point ?
123. Explain the following : general legacy, specific
legacy, demonstrative legacy, ademption, abatement.
124. What is a lapse ? What alterations did the Wills
Act (1 Vict., c. 26) make in the law of lapse ?
125. When does a legacy carry interest ?
126. Give two instances of a construction being placed on
words in a will different to what would be put on the same
words in a deed.
127. Devise to X after the death of Y. Does Y take any,
and what, estate, and why ?
128. What estate do trustees take under a devise to them
without words of limitation ? What difference was there
before 1 Vict., c. 26?
129. Where a testator by his will has charged his real
estate with payment of his debts, but has made no express
provision as to who is to have the power of sale to raise the
necessary money, in whom is the power of sale vested under
the provisions of 22 & 23 Vict., c. 35 ?
130. Limitation to A, and if he shall die without issue to
B. What was the effect of this at Common Law, and how
has it been affected by 1 Vict., c. 26, and the Conveyancing
Act 1882 respectively ?
REAL AND PERSONAL PROPERTY. 59
v.— DIGEST OF QUESTIONS AND ANSWEES ON
THE LAW OF EEAL AND PEKSONAL
PKOPEKTY.
{The Ansioers, except where other references are given, are
composed mainly from Williams' Heal Property, Goodeves
Beal Property , Williams Personal Property, and Goodeves
Personal Property, and all due acknotcledgnient is here
made to the Authors and Editors of those loorhs.)
1 . — Introductory.
Q. Explain the origin and meaning of the distinction
betiveen " rea^' a72d ^^ personal" propeHy.
A. After 12 Charles 2, c. 24, lands, tenements, and
hereditaments were classified as real property, and goods and
chattels as personal property. The expressions originated
in the legal remedy for the deprivation of possession. When
the possession of land was withheld from its rightful owner,
his remedy was by a real action (actio in rem) to recover it ;
but for a wrongful withholding of goods, the remedy was by
a personal action {actio in p)ersonam) against the wrongdoer
to recover damages, since the goods might have been
destroyed.
Q. In ivJuit essential respects do personal property and real
propjerty differ from each other in nature, title, and ownership
respectively ?
A. Personal property is not affected by the feudal rules of
tenure "which affect real estate ; is essentially the subject of
absolute ownership ; consists of goods and chattels, and in-
cludes interests less than freehold in real property ; the
remedy for its deprivation has always been by personal action
for damages against the wrong doer ; it is transfen-ed by
60 THE student's GUIDE TO THE LAW OF
delivery, or bill of sale, or will ; and on the death of the owner
alwaj'^s devolves on his legal pergonal representative in trust
to pay debts and then divide amongst the legatees or next-of-
kin ; the descent is governed by the law of the owner's
domicile, for mohilia sequuntur personam. Eeal property
consists of lands, tenements and hereditaments ; is prac-
tically indestructible, and, therefore, not the subject of
absolute ownership, estates only being held in it ; is governed
by the feudal rules of tenure ; the remedy for its deprivation
has alway^s been by real action to recover the res ipsa
(action for the recovery of land) ; it is transferred by deed or
will ; on the death of the owner it devolves on his devisee or
heir-at-law, subject, however, to debts if the personalty is
insufficient ; and its descent and alienation are governed by
the lex loci rei sitce.
Q. Give the principjcd exceptions, or apparent exceptions, to
the rule that personal property is essentially the subject of
absolute otunersJtip and cannot be held for any estate.
A. {a) Chattels so closely connected with land that they
partake of its nature, pass with it when disposed of, and
descend with it to the heir of the deceased owner. These
are (1) title deeds ; (2) heirlooms, which are strictly chattels
that go to the heir by special custom, e.g., crown jewels,
coat armour, deed boxes, but popularly (and under the
Settled Land Act 1882) are personalty settled to devolve
along with real estate in strict settlement; (3) fixtures;
(4) chattels vegetable, not being emblements; and (5)
animals ferce natura:, unless a special property has been
acquired in them, {h) At law, a tenn of years might be
given to one person for life and then to another absolutely,
but not any other property ; in equity, however, all kinds
of personalty, except articles qucB ipso usu consumuntur,
might be given to one for life and then to another ; and now
under the Judicature Acts, the equity rule prevails.
Q. What are fixtures 1 Can a tenant remove them?
REAL AND PERSONAL PROPERTY. 61
A. Personal chattels annexed to the freehold. The
common law maxim is Quicqutd plaiitatnr solo, solo cedit ;
so they were irremovable. But exceptions have always
been permitted allowing tenants to remove, dm^ing the term,
fixtures erected for purposes of trade, ornament, or domestic
use. And by 14 & 15 Vict., c. 2.5, and the Agricultural
Holdings Act 1888, the like privilege is accorded to agii-
cultural fixtures on certain conditions being complied with.
(See Elwes v. Mawe, and Notes in Indermaur's Common
Law Cases, 7th edition, 75.)
Q. (a) On the death of a tenant in fee simple of a house,
who is entitled to the fixtures set up by him in it ' (b) On
the death of the tenant for life of a house ivho ivould he entitled
to the fixtures set njj by him '^ (c) When houses or buildings
are let for a term of yea^rs, and the tenants set up fixtures for
the purposes of trade, or of ornament, or domestic convenience,
who is entitled to them on the expiration of the term '^ ( d )
When fixtures are demised with the buildings in ivhich they
are, in ivhom, does the proj^erty in the fixtures remain "^
A. (a) If he devised the house, all the fixtures go to the
devisee, but if he died intestate, the legal personal represen-
tative takes the fixtures put up for the purposes of trade,
ornament, and domestic convenience. (Williams on
Executors, 788-745.) (6) The rules as to the right of a
tenant for life to fixtures put up by him are not clear, but
his executor appears to have the right to all fixtures put up
for trade, ornament, or domestic convenience. (Ibid, 747-
751.) (c) The tenant is entitled to the fixtures, but he must
remove them before the expiration of his tenancy. There
are special rules, however, applicable to agricultural tenants.
(See previous answer.) (d) The property in the fixtures
remains in the landlord.
Q. Explain the following maxims : — (1) The father to the
bough, the son to the plough. (2) Mobiiia sequuntur personam.
A. (1) This is a maxim having reference to the tenure of
62 THE student's guide to the law of
gavelkind, and signifies that here there was never an escheat
on attainder or conviction for murder, (2) This expression
means that moveables follow the person and are governed
by the law of the domicile of the owner, unlike lands which
are governed by the lex loci rei sitce.
Q. Explain fully the follotving terms : Emblements, Estate
pur autre vie, Springing Use.
A. Emblements are the fruits of the earth produced by
labour and manurance, and brought to perfection within the
year, e.g., corn, but not clover. The executors of a tenant
for life have a right to them unless the tenancy ends by the
act of the tenant for life. An estate inir autre vie is a free-
hold estate held by one man for the life of another.
Formerly, if the tenant pur autre vie died during the life of
the cestui que vie, the first person who entered on the lands
could hold them as general occupant until the cestui que vie
died ; unless, indeed, the grant had been to the tenant and
his heirs, or the heirs of his body, in which event the heir
took as special occupant during the remainder of the life of
the cestui que vie by virtue of his being named in the grant.
But by 1 Vict., c. 26, sees. 3 and 6, the owner of an estate
pur autre vie may dispose of it by will ; and if he does not,
and there is no special occupant, the lands go to the legal
personal representative of the dead tenant pur autre vie as