part of his personal estate. A springing use is an executory
interest arising by deed under the Statute of Uses, e.g., a
power of appointment over freehold land.
Q. What is meant by Escheat ?
A. Escheat is the resulting of freehold estate to the lord
of whom it is held, where the tenant dies without disposing
of it and without heirs. It is (1) propter defectum sanguinis
— i.e., where the tenant dies literally without issue; or (2)
propter delictum tenentis — i.e., where the tenant was attainted
for treason or convicted for felony, which corrupted his
blood and interrupted the succession. This second kind
REAL AND PERSONAL PROPERTY. 63
can only happen now on outlawry in criminal proceedings,
38 & 34 "Vict., c. 23. The Intestates Estates Act 1884
extended the law of escheat to incorporeal hereditaments,
and to equitable estates in corporeal hereditaments. The
Copyhold Act 1887 enacts that escheat of enfranchised
copyholds shall be to the lord of the manor if the enfran-
chisement takes place since 16th September, 1887.
Q. Explain the follotuing tei^ms: — advowson^ chief rent,
feoffment, shifting use, enfranchisement.
A. An advoivson is the perpetual right of presentation
to an ecclesiastical benefice ; it is an incorporeal heredita-
ment, and real property ; it is j)i'6sentative, collative,
donative, or elective ; it is either appendant to a manor, or
in gross, i.e., a separate property ; and it is either an
advowson of a vicarage or a rectory. A chief rent, or quit
rent, is the small fixed rent paid by the freehold tenants
of a manor, by payment of which they are free from all
other service in respect of their tenure. A feoffment was
a conveyance at common law used to convey a freehold
estate in possession in corporeal hereditaments ; its requisites
are competent parties, words of pure donation, ascertained
property, proper words of limitation, livery of seisin in deed
or in law subsequently perfected by entry during the lives
of feoffer and feoffee ; and since 8 & 9 Vict., c. 106, a deed,
except in conveyances by an infant under the custom of
gavelkind. A shifting use is an executory interest created
under the Statute of Uses, by which the legal seisin of
freeholds is moved from one person to another, e.g., the
name and arms clause in a will by which lands are given to
A., but if within a given time he does not take the testator's
name and arms, then to B. Enfranchisement is the conver-
sion of copyholds into freeholds ; and it is either voluntary
by the lord conveying the freehold to the tenant, or
compulsory under the Copyhold Acts 1852-1887 ; if
voluntary, the lord loses all his rights, but if compulsory
64 THE student's guide to the law of
the lord retains his right of escheat and (unless otherwise
expressed) his minerals and rights of sporting.
Q. Explain heir-at-laiv, customary heir, heir-apparent,
heir presumptive.
A. A man's heir-at-law is the person upon whom, on the
man's death intestate, his real estates devolve by the rules of
law. A customary heir is one who inherits under any special
custom, e.g., Borough English. A man cannot have an heir
until he is dead, for neino est hceres viventis ; neither can he
make his heir, for solus dens haredem fa cere potest, non homo;
but he may have an heir-apparent, i.e., some person living
who must be the heir if he survive, e.g., an eldest son, or an
heir-presumptive, i.e., a person who if the man were to die
now would be his heir but is liable to be cut out by the birth
of a nearer relative, e.g., a daughter whose claim would be
ousted by birth of a son.
Q. State the principal provisions and date of the Statute
of Frauds.
A. The statute was passed in 1677 (29 Chas. 2, c. 3)
to prevent fraudulent practices, enacts (1) leases and interests
of freehold, &c., not put in signed writing shall only have the
force of estates at will, except leases not exceeding three years
at two-thirds of a rack rent ; (2) freehold and leasehold
estates must be suiTendered by deed or signed writing; (8)
no action can be brought against a personal representative
on a promise to answer damages out of his own estate, or on
a guarantee, or on an agreement upon consideration of
marriage, or on any contract or sale of lands, tenements or
hereditaments, or any interest in or concerning them, or
on an agreement not to be performed within one year from
its making, unless made in writing signed ; (4) trusts of land
must be evidenced by signed writing, except those created,
transferred or extinguished by implication of law ; (5) assign-
ments of any trust must be in signed writing ; (6) an equit-
able fee simple shall be assets by descent, but the heir is not
REAL AND PERSONAL PROPERTY. 65
personally liable ; (1) writs of execution to bind the debtor's
goods from delivery to the sheriff; (8) a contract to sell goods
for i^lO or more not to be good unless the buyer accepts
and receives part of the goods, or gives earnest, or partly
pays, or put in writing signed by the party to be charged, or
his agent ; and (9) husband to take administration to wife's
personalty as her next-of-kin.
2. — Tenures, Estates, &c.
Q. Distinguish between allodial lands and feudal lands.
Who were tenants in capite, ivho lord paramount, ivho mesne
lords ?
A. Allodial lands were enjoyed as free and independent
property, held of no one and charged with no service ; the
owners could dispose of them at pleasure. Feudal lands
were lands held of a superior, subject to the performance of
services, generally military ; instead of being the absolute
owner, the holder of the feud had merely the usufruct, and
could not even dispose of that at his pleasure. Tenants in
capita were those who held feudal lands from the sovereign
direct. The king was lord paramount, all lands being in
theory held of him. Mesne lords were tenants in capite,
who had granted out all or part of their lands to be held of
them in subinfeudation.
Q. Trace the causes ivhich led to the decline of the feudal
system in England^ mentioning any special enactments ivhich
tended to that residt.
A. The system of subinfeudation, which was an essential
element, was found prejudicial to the interests of the chief
lords by exposing them to the frequent loss of their
escheats, wardships, and marriages. The statute of Quia
Emptores (18 Edw. 1, c. 1) was the first gi'eat blow stnick
against the feudal system by abolishing subinfeudation.
The nation began more to cultivate the arts of peace, and
F
6(j THE student's GUIDE TO THE LAW OF
in a variety of ways the old feudal system became incon-
venient, the services often being commuted for a money
payment called scutage. The final blow to the system was
oiven by 12 Car. 2, c. 24, which abolished the old feudal
tenures, and converted them into free and common socage.
Q. What ivas subinfeudation? When, tvky, and how was
it abolished ?
A. Subinfeudation was the method by which a feudal
owner conveyed those parts of his feud not required by him-
self, so that the grantee held of him, subject to the performance
of services, and by a tenure similar to his own. Subinfeuda-
tion of the fee simple was abolished in 1290, by the Statute
of Quia Emptores, 18 Edw. 1, c. 1, at the instigation of
the barons who perceived that their privileges as superior
lords were gradually being encroached upon. The statute
enacts that every free man may sell his fee simple at his
pleasure, but that the purchaser shall hold of the same chief
lord of the fee and subject to the same services and customs
as the vendor held.
Q. Describe and distinguish the varioas kinds of condi-
tional estates.
A. Estates upon condition are those, the existence of
which depends on the happening, or not happening, of some
uncertain event, whereby the estate may be originally created,
or enlarged or finally defeated. They are on condition
implied~e.g., a grant of an ofiice or franchise, or expressed.
In the latter case the condition is either precedent— i.e.,
where unless and until the condition is performed the estate
cannot vest ; or subsequent — i.e., where the estate vests at
once, but is liable to be defeated by the grantor re-entering
if the subsequent condition is not performed. There is also
a conditional limitation— i.e., an estate so limited that it
must determine when the contingency on which it is
granted fails — e.g., grant to A and his heirs tenants of
Dale. Where an estate is granted with a condition which
REAL AND PERSONAL PROPERTY. 6 1
is illegal or impossible or repii;:]^iant to the nature of the
estate — if the condition is precedent, the estate never vests ;
if subsequent, the ^(I'antee geta the estate free from the
condition.
Q. Mention the different kinds of estates ivhich may exist
in land.
A. Freehold estates and estates less than freehold. The
latter of these are estates for years, estates at \vill, and
estates at sufferance. The former are (1) Freeholds of
inheritance — viz., estates in fee simple and estates tail : and
(2) Freeholds not of inheritance — viz., all life estates; and
these may be conventional — i.e., created by the act of the
parties, or legal — i.e., arising by operation of law, viz.:
curtesy, dower, and estate tail after possibility of issue
extinct.
Q. Define, (a) estate in fee simjjle, (b) in fee tail, (c) in
base fee, (d) after possibility of issue extinct, (e) at sufferance,
and (f) chattels real and personal.
A. (a) An estate to a person and his heirs ; (b) an estate
to a person and the heirs of his body, either general or
special, male or female ; (c) an estate created by the barring
of an estate tail by a tenant in tail in remainder without the
consent of the protector ; (d) an estate in special tail when
the person from whose body the issue are to come dies with-
out issue ; (e) the estate of a person who, having come law-
fully into possession, holds over after the expiration of his
lawful title ; (/) chattels real and personal are personal
property, the first though personal yet being connected with
realty, and the latter purely personal.
Q. Enumerate and classify the various kinds of estates for
life which may subsist in freehold and copyhold lands.
A. They are either conventional (i.e., created by the act
of the party by deed or will), or legal (i.e., created by
operation of law). Conventional life estates are either for
the holder's own life or pur autre vie. Legal life estates are
F 2
(J8 THE student's GUIDE TO THE LAW OF
those ill dower, curtesy, and tenancy in tail after possibility
of issue extinct.
Q. By ivhat tvords inay an estate for years, for life, in
tail, and in fee he created by deed and will respectively f
A. No precise words are needed to create an estate for
years, but the words used must indicate that the tenant is
to hold for a fixed period of time, i.e., for years, months,
weeks, or days. An estate for life is created in a deed by
a grant to A for his own life or for the life of another, or
by a grant to A simply ; but in a will, the intention must
be expressed that the devisee shall not take more than a
life estate, because a devise to A simply will give him all
the testator's interest unless a contrary intention is expressed
(I Vict., c. 26, sec. 28). An estate tail is created in a deed
by a grant to A and the heirs of his body, or to A in fee
tail (Conveyancing Act 1881, sec. 51) ; but in a will, it may
be created by any words of procreation evincing the intention,
e.g., to A and his seed, to A and his offspring. To create a fee
simple in a deed the words of limitation must be clear and
precise, viz. : " to A and his heirs," or by the Conveyancing
Act 1881, " to A in fee simple " ; but in a will a mere devise
" to A " without further words of limitation will pass the fee
simple or other the testator's whole interest, unless it clearly
appears on the face of the will that such was not the
testator's intention. (L Vict., c. 26, sec. 28.) In a con-
veyance by deed to a corporation, the words used would be
" to the corporation and their successors."
Q. Mention the various cases in which an estate in lands
may be made to vest by virtue of a statute or statutory
authority.
A. This would happen by virtue of the Statute of Uses
in the following cases : — (1) By means of a bargain and
sale. (2) By means of a lease and release. (3) By means
of a covenant to stand seised to uses. (These three modes
of conveying property are, however, now obsolete.) (4) By
REAL AND PERSONAL PROPERTY. 69
means of an appointment under a power. (5) By means of
a grant to uses. Also under the Trustee Act 1850, where
the Court makes a vesting order ; also by declaration in a
deed appointing new trustees under the Conveyancing Act
1881 ; also under sec. 5 of that Act on paying the amount
of an incumbrance into Court ; also by a tenant for life under
the provisions of the Settled Land Act 1882 ; also by order
of the County Court for cost of improvements under the
Agricultural Holdings Act 1883 ; also under the Judicature
Act 1884, when the Court nominates a person to execute
a conveyance, when one ordered by the Court to do so
neglects or refuses ; also by award of the Land Commissioners
(now the Board of Agriculture) made under the Copyhold
Acts, or the General Inclosure Acts, or for redemption of
tithe rent charge, or of quit rents, &c. ; also under the
Land Transfer Act 1875.
3.— Life Estates, Settled Land Acts, &c.
Q. What estate or interests may be created in land ivith
regard to their quaodity and quality res^jectively ? Wliat
difference is there in the quality of an estate limited to A for
life, and of an estate limited to A for 1000 years if he shall
so long live ?
A. The quantity of an estate means the time of its con-
tinuance. The quality of an estate has reference to the
mode of its enjoyment ; from this point of view estates may
be (1) legal or equitable ; (2) in possession or expectancy ;
(3) in severalty, in joint tenancy, in tenancy in common, or
in coparcenary. In the case put there is no difference in
quality ; the difference is in quantity, the life estate being
freehold and real estate, and the term of years less than
freehold and personal property.
Q. Define legal waste and equitable luaste.
A. Legal waste is such waste as a Court of Law took
cognizance of; but if a life estate were granted without
70 THE student's GUIDE TO THE LAW OF
impeachment for waste, although at law the tenant could
commit any kind of waste, a Court of Equity would not
allow the tenant to do such unconscionable acts of waste
as pulling down or destroying the mansion house or
cutting ornamental timber, and so these acts were called
equitable waste. Under the Judicatm'e Act the rules of
equity prevail.
Q. (a) What is meant by voluntary waste and by jjer-
missive waste? (b) Is the estate of a legal tenant for life
liable after his death to the remainderman for permissive
ivaste suffered in his lifetime? (c) Will the Court interfere
at the instance of a remainderman to restrain an equitable
tenant for life from suffering permissive ivaste upon the trust
property ?
A. {a) Waste is any spoil, injuiy, or destruction to, or
alteration of, the inheritance. Voluntaiy waste is waste
committed by actually puUing down, altering, or injuring
the property ; permissive waste is allowing the property to
deteriorate for want of repairs, {b) A tenant for life is liable
for all acts of voluntary waste, but not for permissive waste
{Be Cartwright, Avis v. Kewman, 41 Ch. D., 532) unless the
instrument creating his estate expressly makes him so (Wood-
house V. Walker, 5 Q. B. Div., 404) ; and his estate would be
answerable or not accordingly, (c) Not miless the tenant
was expressly bound not to commit such waste (Woodhouse
V. Walker, supra).
Q. A freeholder, having granted a lease for years at a rent
payable quarterly, dies during the last quarter of a year
intestate. The rent was three-quarters of a year in arrear
id his death, and the fourth quarter's rent has become
payable. To ivhat person, or persons, does the luhole years
rent belong, and by ivhat person, or persons, must it be
received ?
A. The three-quarters' arrears of rent, being actually due
at the death, belong to the legal personal representative of
REAL AND PERSONAL PROPERTY. 71
the dead landlord, who may sue and distrain for them. The
proportion of the fourth quarter's rent up to the death also
belongs to them, and the balance belongs to the remainder-
man, reversioner, heir, or devisee (as the case may be) ; and
the whole quarter's rent may be sued and distrained for by
the remainderman, etc., who is personally liable to the repre-
sentatives in an action by them for the apportionment.
(See 33 & 34 Vict., c. 35.)
Q. State briefly the effect of the regulations under ivhich
the poivers given to the tenant for life under the Settled Land
Act 1882 are to be exercised.
A. Under the 1882 Act, sec. 45, a month's notice must
first be sent by registered post to the trustees and their
solicitors, if known ; but, under the 1884 Act (sec. 5), this
may (as regards a sale, exchange, partition, or lease) be a
general notice, and be waived or shortened. Under the 1890
Act (sec. 10) no sale, exchange, or lease of the principal
mansion-house can be made without consent of trustees or an
order of Court, unless the house is a farmhouse, or the house
and park do not exceed 25 acres. Under the 1882 Act (sec.
37), a sale of heirlooms cannot be made without an order of
Court. Under sees. 3 and 4, a sale is to be at the best price
that can be obtained, either by public auction or private
contract, together, or in lots. Under sec. 7, the lease must
be at the best rent that can be obtained, to take effect in
possession not later than twelve months after its date, and is
to contain a covenant for payment of rent, and a condition of
re-entry on non-payment within a time not exceeding 30
days. Sees. 8-11 also contain further regulations specially
relating to building and mining leases.
Q. State the effect of the general regulations under n-hich
a. tenant for life nw y lease settled lands for hailding and
mining purposes.
A. The term may not exceed 99 years for a Iniilding lease,
and 60 years for a mining lease. The lease must be by
72 THE student's guide to the law of
deed ; to take effect in possession within 12 months ; must
reserve the best rent, regard being had to any fine (which
by the 1884 Act is capital money) and to any money laid
out for the benefit of the settled land and to the circum-
stances ; must contain a covenant to pay rent, and a right
of re-entry if the rent is not paid within a time named,
not exceeding 30 days ; a counterpart must be executed by
the lessee and delivered to the tenant for life. The building
lease must be made partly in consideration of the erection,
or improvement, or repair, of buildings or improvements ; a
peppercorn rent may be reserved for the first five years ; if
the land is to be leased in lots, the entire rent maybe appor-
tioned, but the rent on each lot must not be less than ten
shillings, nor greater than a fifth of the annual value of the
land with the buildings. The 1889 Act allows an option to
be given to the lessee to buy the fee simple within a time
not exceeding ten years at a price named in the building
lease. In the mining lease, the rent may be an acreage or a
tonnage rent ; and a minimum rent may be reserved, with
power to make up back-workings or not ; and the tenant
for life gets three-quarters, or (if impeachable for waste)
only a quarter of the rent, the rest being capital. The •
tenant for life must give one month's notice to the trustees,
which (by the Act of 1884) may be a general notice and
may be waived or shortened. (Settled Land Act 1882,
sees. 6-11, 45.)
Q. By ivhom, are the powers conferred by the Settled Land
-Acts exercisable when the tenant for life is (a) an infant, (b)
a married ivoman, (c) a lunatic ?
A. (a) By the trustees of the settlement, and if there are
none then by such person and in such manner as the Court,
on the application of a testamentary or other guardian or
next friend of the infant, either generally or in a particular
instance, orders (sec. 60). (b) Where the married woman is
entitled for her separate use, or under any statute for her
REAL AND PERSONAL PROPERTY. 73
separate property, or as ^ feme sole, by the inarrifKl woman ;
and where she is entitled in any other way, then by her and
her husband together (sec. 61). (c) By the committee of
his estate, under an order from the Lord Chancellor, obtained
on petition by the committee or any person interested in the
settled land (sec. 02).
Q. What are the yrovisions of the Settled Land Act 1882
ivlih reference to the a.ssignnient or release of, or the restriction -+-
of the exercise of, the tenant for life's poivers ? and what is the
effect of a conflict betiveen those powers and any other poivers
given by the settlement ?
A. Sec. 50 provides that the powers do not pass to an
assignee but remain exercisable by the tenant for life ; though
if he has assigned his estate he cannot exercise his powers
to the prejudice of the assignee, except that if the assignee
has not gone into possession he may still exercise his
power of leasing without the assignee's consent if no fine is
taken. By sees. 50, 51 and 52 any contract by the tenant
for life not to exercise his powers is void, and any prohibition
or forfeiture on exercise of such powers is also void. By sec. 57
a settlement may confer larger or additional powers than
those contained in the Act. By sec. 56, in case of conflict
between the provisions of the Act and those of the settle-
ment, the provisions of the Act are to prevail.
Q. For luhat purposes of the Conveyancing Act 1881 and
the Settled Land Act 1882, respectively, are trustees of a settle- ]
ment needed, and who would he trustees for those purposes if '
none 'were appointed by the settlement ?
A. Under sec. 42 of the Conveyancing Act 1881, trustees
are needed where the beneficial owner of land is an infant,
and, if a female, is unmarried, for the purpose of managing
the property, and applying the income as directed by that
section. Under the Settled Land Act 1882, trustees are
needed — (1) to receive notice of the tenant for life's intention
to exercise his powers under the Act ; (2) to consent to a
L-
74 THE student's guide to the law of
sale or lease of the mansion and demesne ; (3) to consent to
a sale of ripe timber where the tenant for life is impeachable
for waste ; (4) to approve a scheme for improvements ; (5)
to receive and pay money ; (6) to make investments under
the direction of the tenant for life; and (7) to exercise the
powers of the life tenant, where such tenant is an infant.
Under both Acts, if there are no trustees under the settle-
ment, the Court will appoint trustees, on application by or on
behalf of the tenant for life.
Q. What are the jjrovisions of the Settled Land Act 1882
with reference to the cutting and sale of timber by a tenant for
life^
A. By sec. 35 a tenant for life — who is impeachable for
waste with respect to any timber — may cut and sell that
timber provided it is ripe and fit for cutting, and he gets the
consent of the trustees or an order of Court, but three-fourths
of the net proceeds are capital and the balance only income.
By sec. 29 the tenant for life may cut and use timber which
is not ornamental in order to execute, maintain, or repair any
improvements under the Act.
Q. Explain the operation of a conveyance by a tenant for
life under the Settled Land Act 1882. What estates and
charges are, and ivhat are not, capable of being over-reached
by such conveyance ?
A. It operates by virtue of the Act to pass at once by the
deed the estate subject to the settlement in whatever
manner is requisite for giving effect to the sale, exchange,
partition, lease, mortgage, or charge. It can over-reach all
the limitations, powers and provisions of the settlement,
and all estates, interests and charges subsisting or to
arise thereunder; but subject to and except (1) estates,
interests, and charges which (a) have priority to the settle-
ment, or (6) are created for securing money actually raised
at the date of the deed, and (2) grants at fee farm rents
and grants of easements or commons or other rights
BEAL AND PERSONAL PROPERTY. 75
granted for value before the date of the deed. (Sec. 20
of 1882 Act.)
Q. What poiuer is given by the Settled Land Acts for the