Henry Williams Challis Henry J. Hood.

The Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... online

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without any conveyance or assignment, operate to vest
in the continuing trustees alone, as joint tenants, and
for the purposes of the trust, the estate, interest, or
right to which the declaration relates.

(3.) This section does not extend to any legal estate
or interest in copyhold or customary land, or to land
conveyed by way of mortgage for securing money
subject to the teust, or to any such share, stock,
annuity, or property as is only transferable in books
kept by a company or other body, or in manner pre-
scribed by or under Act of Parliament.

Equitable estates in copyholds, when already subsisting, pass by
assignment under the former law, and will doubtless pass by such
declaration as is contemplated in this section. It may Be a question
whether, when no separate equitable interest is subsisting, and only
legal copyholds are vested in trustees, such a declaration would
pass a right similar to that which is acquired by a covenant to sur-
render. As against the lord, no right seems to be acquired.

Where a transfer of a trust estate, which comprises certftin of
these excepted particulars, cannot be obtained, the court will by
an order vest the trust estate in new trustees who have been duly
appointed. (Re Harrison^ s Settlement Trusts^ W. N. 1883, p. 31.)

(4,) For purposes of registration of the deed in any
registry, the person or persons making the declaration
shall be deemed the conveying party or parties, and
the conveyance shall be deemed to be made by him or
them under a power conferred by this Act.

(5,) This section applies only to deeds executed after
the commencement of this Act.

In cases where a trustee is discharged from the trust, and, by
reason of his absence or incapacity, his concurrence in transferring
the property cannot be obtained, this section conveniently enables
the trust property to be transferred without his concurrence. But
where sudi concurrence can easily be obtained, there is no apparent
motive to substitute a declaration for a conveyance ; and in all cases
where the trust estate includes property in respect of which it is not
desirable to place the trust upon the title, the old practice of conveying
by a separate deed should still be adopted, and the declaration
made imder this section, if any, should be limited to that part of
the property to which the objection does not apply. But sect. 63,



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TRUSTEES AND EXECUTORS. 179

8ub-s. (1), of the S. L. Act, 1882, ma^es it a doubtful question, (j, j^ jggi
whether trusts which create interests by way of succession, can in Sect. 34.
future be kept off the title. See remarks at end of note thereon, post '- — '—'

The word " deed " is emphatic, and is contrasted with ttie word
** writing" in sect. 31, ante.

The mere appointment of new trustees does not, it is conceived,
suffice to vest equitable estates in them. Equitable estates appear
to need formal conveyance no less than legal estates {Tasker v.
fSmally 3 My, & Cr. 63, at p. 70) ; and such conveyances need formal
limitation of the estates conveyed (1 Prest. Abstr. 146), though the
interests of the parties themselves may be sufficiency boui^d by any
contract {Tasker v. Small, supra); but even a purchaser cannot,
before conveyance, enforce his rightis against a stranger. {Be Uoghton
V. Money, L. E. 2 Ch. 164.)

In Dodson v. Powell, 18 L. J. Ch. 237, it was decided, not that
equitable interests passed without conveyance to the new trustees
upon their appointment, but that, there being nothing vested in the
old trustees which they could convey, they could not be compelled
to execute any conveyance.

Since the declaration mentioned in this section deals only with
trustees, and operates to vest the trust property in them as joint
tenants, a doubt might be raised whether the section will take effect
where only a single trustee is appointed in the place of a last retiring
or single trustee. Such appointments are not favoured ; but if the
appointment is valid, it would appear to be the better opinion that
the properly could be vested in the new trustee under this section.
Public policy woidd not be served by a contrary ruling, for the
property could in the case sin)posed be vested in the sole trustee by
ordinary conveyance. By Lord Brougham's Act (13 & 14 Vict.
c. 21) the plural includes the singular, and, if this interpretation be
adopted, the words " as joint tenants" would be treated as inopera-
tive in the case supposed.

The declaration implies no covenant against incimibrances by the
retiring trustee, and, where such a covenant is appropriate, it
diould still be inserted.

By sect. 50, post, a person may now assign a chose in action to
himself and another.

Since the declaration is in effect a statutory conveyance, the usual
notices should still be given where it includes a chose in action.

As to vesting trust property belonging to religious bodies, see
13 & 14 Vict. c. 28 ; of which sect. 5 was repealed by 38 & 39 Vict.
c- 66.

Searches in register counties may now in some cases be advisable
in the name of the person empowered to appoint trustees, as well
as of the trustees.

The appointment of new trustees, and the vesting of property in
them, are distinct matters within the Stamp Act, 1870; and it seems
that a separate stamp is required in respect of each, notwithstanding
the provision in sect. 78 of that Act, that a conveyance made **for
effectuating " the appointment of a new trustee is not to be charged
with a higher duty than ten shillings. (See Hadgett v. Commis-
sioners of Inland Revenue, 3 Ex. D. 46.) The same principle seems to
be applicable to cases where a trustee retires and no successor is
appointed.

35. — (1.) Where a trust for sale or a power of sale Sect 35.
of property is vested in trustees, tliey may sell or con- i*ower fw



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180 CONVEYANCING AND LAW OF PROPERTY ACT, 1881.

C. A. 1881, cur with any other person in selling all or any part of
Sect. 85. the property, either subject to prior charges or not,
pale to sell by and either together or in lots, by public auction or
auction, &o. ^^ private contract, subject to any such conditions
respecting title or evidence of title, or other matter,
as the trustees think fit, with power to vary any con-
tract for sale, and to buy in at any auction, or to
rescind any contract for sale, and to re-sell, without
being answerable for any loss.

(2.) This section applies only if and as far as a
contrary intention is not expressed in the instrument
creating the trust or power, and shall have effect
subject to the terms of that instrument and to the pro-
visions therein contained.

(3.) This section applies only to a trust or power
created by an instrument coming into operation after
the commencement of this Act.

This section was supplementary to Part I. of Lord Cran worth's
Act. The whole of Lord Cranworth's Act has now been repealed,
as from the 31st December, 1882, by the S. L. Act, 1882 ; see the
Schedule to that Act, posi ; but by virtue of this section, the words
" upon trust for sale," or ** with power to sell," will imply the forms
commonly in use.

Trustees having a power of sale might formerly have concurred
with other vendors, though not expressly authorized so to do, if the
trust property would thereby fetch a better price. See Cooper to
Harlech, 4 Ch. D. 802, at p. 819, a case which in some measure
weakens, or explains away, Rede v. Oakes, 4 De G. J. & S. 505.
But the onus of showing that such method of sale was beneficial
rested with the trustees. Trustees cannot concur with other lessors
in making a single lease of adjoining properties. {Tolson v. Skeardy
5 Ch. D. 19; and see note on the S. L. Act, 1882, sect. 19, post.)

Ordinarily a trustee may concur with the owners of other interests
in the same property, in making a sale of the whole. As to the
apportionment of the purchase-money, see Morris v. Debenham,
2 Ch. D. 540.

. As to the distinction between a trust for sale and a power of
sale vested in trustees, see Lewin on Trusts, ch. 18, s. 2; Jarman
on Wills, ch. 19.

As to the circumstances which will determine such a trust or
power, see Lantshery v. Collier^ 2 K. & J. 709 ; Peters v. Leices and
East Grinstead Railway, 18 Ch. D. 429; Re CottorCs Trustees and
the School Board for London, 19 Ch. D. 624; Biggs v. Peacock,
22 Ch. D. 284.

Sect 86. 36. — (1.) The receipt in writing of any trustees or
Tmetees' trustco for anv money, securities, or other personal
receipts. property or effects payable, transferable, or deliver-
able to ihem or him under any trust or power shall be
a suflficient discharge for the same, and shall effectually
exonerate the person paying, transferring, or deliver-



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TRUSTEES AND EXECUTORS. 181

ing the same from seeing to the appKcation or being C. A. 1881,
answerable for any loss or misapplication thereof. Sect 86.

(2.) This section applies to trusts created either
beiore or after the commencement of this Act.

This is an extension of the corresponding provision in Lord
Cranworth's Act, sect. 29, which only comprised ** money."

All trustees who have not effectually disclaimed or retired ought
to join in the receipt, even if they have already conveyed the estate
to the co-trustees. (See Crewe v. Dicken, 4 Ves. 97.) But it has
been held in Nicloson v. JFordsworth, 2 Swanst. 365, that a con-
veyance may operate as a disclaimer. A purchaser, having paid his
money to a third person by direction of the trustees, who, neverthe-
less, signed the receipt, was protected {Hope v. Liddell, 21 Beav. 183;
and see Locke v. Lomas, 5 De G. & Sm. 326 ; Ferrier v. Ferrier,
11 L. B. It. 66, C. A.) ; but in ordinary cases such a mode of pay-
ment is objectionable.

As to trustees* receipts generally, see Lewin on Trusts, ch. 18,
sect. 2 ; and Dart's Y. & P. ch. 13, sect. 3; and see note on the
next following section.

Money paid into court under the Lands Clauses Act, 1845, can
be paid out to trustees entitled, without notice to the cestuis qui
irustent. {Re Thomas' Settlement^ W. N. 1882, p. 7 ; 45 L. T. 746.)

37. — (1.) An executor may pay or allow any debt Sect. 37.
or claim on any evidence that he thinks sufficient. Power for

(2.J An executor, or two or more trustees acting '^^V^
togetner, or a sole acting trustee where, by the instru- compound,
ment, if any, creating the trust, a sole trustee is autho-
rized to execute the trusts and powers thereof, may, if
and as he or they think fit, accept any composition, or
any security, real or personal, for any debt, or for any
property, real or personal, claimed, and may allow
any time for payment of any debt, and may com-
promise, compound, abandon, submit to arbitration,
or otherwise settle any debt, account, claim, or thing
whatever relating to the testator's estate or to the
trust, and for any of those purposes may enter into,
give, execute, and do such agreements, instruments of
composition or arrangement, releases, and other things
as to him or them seem expedient, without being
responsible for any loss occasioned by any act or
thing so done by him or them in good faith.

(3.) As regards trustees, this section appKes only if
and as far as a contrary mtention is not expressed m
the instrument, if any, creating the trust, and shall
have effect subject to the terms of that instnmient and
to the provisions therein contained.

(4.) This section applies to executorships and trusts



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182 CONVEYANCING AND LAW OF PROPERTY ACT, 1881.

C. A. 1881, constituted or created either before or after the com-
^^^' ^"^^ mencement of this Act.

This section takes tlie place of sect. 30 of Lord Cranwortli's Act.
For an example of a compromise held to be good under that section^
see West of England, ^c. Bank v. Murch, 23 Ch. D. 138.

It seems that in future the only question to be considered with
reference to the conduct of an executor (or trustee) will be, whether
he has acted in good faith or not : jyer Jessel, M. R., in Jones v.
Owens, 47 L. T. 61, at p. 64.

An executor cannot, though trustees may, be deprived of the
powers given by this section. The enactment refers to trustees
constituted by will as well as by deed. With regard to the use of
the word " authorized," the question will arise, whether an express
authority is needed, or whether the common form, "or the sur-
vivors or survivor of them, &c., or other the trustees or trustee for
the time being of these presents," will suffice to give a "sole"
(which seems here to mean a single) trustee the powers of this
section. Where the above cited form is used, and it is not desired
that a single trustee should have the powers, an express declaration
should be inserted to that effect.

Since executors are considered at law as one person, the act of
one is the act of all, and a release by one binds the rest ; and it has
been held that if one executor settles an account, such settlement (if
ho?id fide) will be good against the other executors, even if they
dissent. {Smith v. Everett, 27 Beav. 446 ; Williams on Executors,
pt. iii. bk. i. ch. 2.) But the rule, as regards co-trustees, is
different, and a receipt by one of two trustees, even though he was
also an executor, has been held not to be a sufficient discharge.
{Lee V. Sankey, L. R. 15 Eq. 204.) On the same principle it would
appear that the powers given to trustees by this section must be
exercised by all of them, the words "two or more trustees actinfi^
together " being equivalent to " trustees not being fewer than two.
In the case of a private trust, a majority of the trustees cannot bind
the minority or the trust estate. {LukeY. South Kensington Hotel Co.,
11 Ch. D. 121.) Nor has the court jurisdiction to control a dis-
sentient trustee in the exercise of a pure discretion, not coupled
with a duty. (Tempest v. Lord Camoys, 21 Ch. D. 571.)

It is doubtfiu whether this section would authorize the release of
a right of entry accruing for the breach of a condition. Its language
contains nothing which is e/usdem generis therewith, aU its terms
having reference to disputed money claims. With respect to such
riffhts, executors and trustees seem to remain subject to the former
nde, independently of Lord Cranworth's Act, respecting compro-
mises entered into by them; namely, that they might in such
matters exercise their discretion, subject to having their action
reviewed, and confirmed or disallowed, as the case might require,
by the court, according as it should appear to have been for the
benefit or oiiierwise of the estate. (Blue v. Marshall, 3 P. Wms.
881.) It is doubtful whether this rule authorizes executors or
trustees to enter into a compromise with one of themselves, even
though the same should be beneficial to the estate. (See De Cordova
v. De Cordova, 4 App. Cas. 692.)

This section does not apply to administrators.

Sect 38. 38. — (1.) Where a power or trust is given to or
?f^®"*?,^^ vested in two or more executors or trustees lointlv,

or more exe* J » '



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TRUSTEES AND EXECUTORS.



183



then, unless the contrary is expressed in the instru- C. A. 1881,
ment, if any, creating the power or trust, the same Sect. 88.
may be exercised or performed by the survivor or sur- cutora or
vivors of them for the time being. tnwteeB.

(2.) This section appKes only to executorships and
trusts constituted after or created by instnmients
coming into operation after the commencement of this
Act.

It is presumed that this section is designed to formulate the
existinglaw, and to remove certain doubts that have been enter-
tained. In Warhurton v. Sandys, 14 Sim. 622, it was held that
surviving trustees could sell, even where there was an express direc-
tion in the will by which the trust was created, that vacancies
should be supplied within a specified time which had expired.

As to sales by surviving trustees generally, see Dart's V. & P.
ch. 13, sect. 3.

The old rule, that a bare power given to two or more persons, and
annexed neither to an estate nor to an office, does not survive, is
not altered by this section, which only extends to powers vested in
executors and trustees ; for it is conceived that a power or trust,
in order to come within this section, must be vested m the executors
or trustees, as such, so as to annex it to the office, and not to the
individual; since something more than the possession of a bare
power is needed to constitute a person a trustee.

The old rules as to the survivorship of powers are conveniently
stated in Farwell's Treatise on Powers, pp. 370 et seq.

By the Conv. Act, 1882, sect. 6, the rule that powers survive on
the death of a donee is extended to the case of a disclaimer by a
donee. Whether the last-mentioned section, intentionally or other-
wise, allows powers, annexed neither to an estate nor to an office,
to survive 4ipon a disclaimer, will require consideration. (See note
thereon, post.)

VIII. — Married Women.

39. — (1.) Notwithstanding that a married woman Sect. 39.
is restrained from anticipation, the Court may, if it ^^^ZTj ^ d
thinks fit, where it appears to the Court to be for her intereat of
benefit, by judgment or order, with her consent, bind ^J^J^
her interest in any property.

(2.) This section apphes only to judgments or
oraers made after the commencement of this Act.

Applications under this section must be made by summons at
ehambers (sect. 69, sub-s. 2, post), and not on petition. {Ee LillwalTs
Settlement Trusts, W. N. 1882, p. 6.)

An order may be made under the powers given by this section,
upon a petition intituled in the Settled Estates Act, 1877, without
the petition being also intituled under the present Act. {Landfield
V. Landfield, 30 W. E. 377.)

It seems that this section was primarily intended to alter the law
declared in Robinson v. Wheeltoright, 6 De G. M. & G. 535, where
it was held that the court could not permit a married woman to
alienate her restrained property, even to the manifest advantage of
her estate.



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184 CONVBYANCING AND LAW OF PROPBETY ACT, 1881.

C. A. 1881, I^ Hodges v. Hodges, 20 Ch. D. 749, Fry, J., made an order under
Sect. 89. ^is section permitting alienation j but lie described the proceeding,

not as binding the married woman's interest, but as removing the

restraint : a strange synonym.

In Tamplin v. Miller, W. N. 1882, p. 44, HaU, V.-C, permitted
a married woman to compromise her claim upon a trust fund, as to
her interest in which she was restrained from anticipation. In
Musgrave v. Sandeman, 48 L. T. 215, effect was given to a compro-
mise of an action, in virtue of which a married woman restrained
from anticipation agreed to accept a lump stun in lieu of an annuity.

The court has no power imder this section to remove the restraint
simply, but only to bind the interest of the married woman for the
purpose of permitting a disposition to be made which is for her
benefit. {Re Warren's Settlement, W, N. 1883, p. 125 ; 52 L. J.
Ch. 928.)

The power will not be exercised if it appears that the real object
is to pay the husband's debts with the wife's money. It must be
clearly proved to the court that it will be for the married woman's
personal benefit to accede to the application. Even the desire to
pay her own debts will not of necessity suffice as a compliance with
this condition.

In Hodges v. Hodges {supra) the married woman was the wife of
a domiciled Frenchman, and her French creditors, being unfamiliar
with restraint on anticipation, " harassed " her. The circumstances
were considered exceptional, and assistance was given.

A married woman, having a life interest with restraint on antici-
pation, being plaintiff in an action for the rectification of deeds on
the ground of mistake, consented to pay the costs of all parties ; and
the court, on the application of the defendant, with her consent,
made an order binding her life interest for that purpose. {Sedgwick
V. Thomas, 48 L. T. 100.)

A mortgage debt was settled on a married woman for life without
power of anticipation. She desired to provide funds for the purpose
of emigration, and an order was made authorizing the sale of her
life estate. {Re Flood's Trusts, 11 L. E. Ir. 355.) The report
contcdns the order verbatim. This seems to be an extreme case.

It is proper to accompany the application with at least the outline
of a scheme, if it is sought to raise money ; and the court will pro-
bably not consider it beneficial if the proposed rate of interest is
excessive, or the terms onerous in other respects ; e,g., o, stipulation
to mortgage a property and to insure a life by way of collateral
security, would generally be deemed excessive.

It seems that the court, by order made after the commencement
of the Act, might, with the married woman's consent, validate a
deed executed before the commencement of the Act purporting to
bind her interest.

It has been held by Fry, J., that the married womsm need not be
separately examined as t^ her consent. {Hodges v. Hodges, supra,)
Sed queer e; and, also, whether, if separate examination shoiild here-
after be held to be necessary, the want of it would come within any
of the cases provided for by sect. 70, post. In the more recent case
of Musgrave v. Sandeman, supra, Pollock, B., directed the married
woman to be separately examined.

In Shipway v. Ball, 16 Ch. D. 376, Malins, V.-C, held that a
married woman, being a minor, could not consent to waive her
equiiy to a settlement. The same principle seems to apply to con-
sents under this section.



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MARBIED WOMEN. 185

The powers conferred by the S. L. Act, 1882, can be exercised by C. A. 1881,
a married woman without application to the court, notwithstanding Sect, 39,

that she is restrained from anticipation. (See sect. 61, sub-s. 6, of

that Act, post.

40. — (1.) A married woman, whether an infant or Sect. 40.
not, shall by virtue of this Act have power, as if she ^^^^^f
were unmarried and of full age, by deed, to appoint mam^
an attorney on her behalf for the purpose of executing '^®°^*^-
any deed or doing any other act which she might her-
self execute or do; and the provisions of this Act
relating to instruments creating powers of attorney
shall apply thereto.

(2.) Tlus section applies only to deeds executed
after the commencement of this Act.

A deed executed by an attorney appointed by virtue of this
section, will of course require to be separately acknowledged in all
cases in which separate acknowledgment woidd be required if the
deed were executed by the married woman;

As to acknowledgments by married women, see now the Conv.
Act, 1882, sect. 7, post.

There seems to be nothing to prevent a married woman from
irrevocably appointing an attorney. It therefore seems that, not-
trithstandmg this section, income, as to which she is restrained from
anticipation, ought not to be paid to an attorney. {Kenrick v. Woodj
L. E. 9 Eq. 333.) Otherwise she might be able to evade the restraint.
(See Stanley v. Stanley, 7 Ch. D. 589.)

As to powers of attorney, see sects. 46 — 48, post ; and as to irre-
vocable powers, see the Conv. Act, 1882, sects. 8 and 9, post.



IX. — ^Infants.

41. — ^Where a person in his own right seised of or Sect 41.
entitled to land for an estate in fee simple, or for any i^^*°^i^.
leasehold interest at a rent, is an infant, the land shall half of infant
be deemed to be a settled estate within the Settled J7^^. ^^^i*
Estates Act, 1877.

The operation of this section wiU probably now be to a great
extent superseded by sects. 59 and 60 of the S. L. Act, 1882, post.

Previously to this enactment the courts had no power to sell an
infant's lands, except under special statutes, such as the Partition
Acts. (See Calvert v. Godfrey, 6 Beav. 97; Blacklow v. Laws,
2 Ha. 40 ; Dart's V. & P. c. 21, s. 5.)

By sect. 4 of the Settled Estates Act, 1877 (which re-enacted
sects. 2 and 4 of the Act of 1856), the court can authorize leases of
settled estates. The interpretation clause includes among settled
estates, "all hereditaments of any tenure, and all estates or interests
in any such hereditaments which are the subject of a settlement."

By sect. 16 of the same Act (which re-enacted sect. 11 of the Act
of 1856) the court has power to authorize a sale of a settled estate,
or of timber, not being ornamental timber.

c. o



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186 CONVEYANCING AND LAW OP PROPERTY ACT, 1881.

C. A. 1881, By sects. 46 and 49 of the same Act (which re-enacted and ex-



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 23 of 53)