Henry Williams Challis Henry J. Hood.

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

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specting the enforcing, carrying into effect, varying,
or rescinding thereof.

The tenant for life will do well, before commencing or defending

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an action, to apply for directions under this sub-section, for the pur- g. L jl.
pose (inter alia) of procuring the payment of costs, if necessary, out Sect. 81.

of capital. In proper cases cx)8ts will, if necessary, be ordered to

be raised by mortgage imder sect. 47, post

(4.) Any preliminarv contract under this Act for or
relating to a lease shall not form part of the title or
evidence of the title of any person to the lease, or to
the benefit thereof.

Compare the Conv. Act, 1882, sect. 4, and note thereon, ante. The
present section perhaps refers to sect. 45, post^ and may prevent
all danger to purchasers for value arising from any default in the
giving of such notices as therein mentioned; also any danger
which might arise from the existence of a concealed contract prior
to that under which the lease was granted.

For form of summons applica ble to t his section, see Appendix to
the S. L. Act Eules, 1882, Form XVU., post.

IX. — Miscellaneous Provisions.

32. Where, under an Act incorporating or apply- Sect. 82.
ing, wholly or in part, the Lands Clauses Consolidation AppUcation
Acts, 1845, 1860, and 1869, or under the Settled comt^iSdOT
Estates Act, 1877, or under any other Act, public, 1^^^ clauses

,, ', ^., '^•..1 '*^ ^ and other

local, personal, or private, money is at the commence- Acts.
ment of this Act in Court, or is afterwards paid into 8 & 9 Vict.
Court, and is liable to be laid out in the purchase of 23 ku Vict.
land to be made subject to a settlement, then, in addi- go^^^oo y ♦
tion to any mode of dealing therewith authorized by c. is.
the Act under which the money is in Court, that ^^i**^^^^**
money may be invested or applied as capital money
arising under this Act, on the like terms, if any, re-
specting costs and other things, as nearly as circum-
stances admit, and (notwithstanding anything in this
Act^ according to the same procedure, as if the modes
of mvestment or application authorized by this Act
were authorized by the Act under which the money is
in Court.

Money paid into Court under the Lands Clauses Act may be paid
out to the trustees at the request of the tenant for life. {Re Duke of
Rutland's Settlement, W. N. 1883, p. 140 ; 31 W. R. 947. See also
Re Wright's Trusts, 24 Ch. D. 662.)

The purchase-money of lands belonging to a charity and taken by
a public body, having been paid into court under the Lands Clauses
Act, has been held to come within this section for pmrposes of invest-
ment. {Re Byron's Charitv, 23 Ch. D. 171.)

A public body having taken settled land and paid the purchase-
money into court, it was held that they must pay all the cost of an
interim investment under the present Act, though the Act by virtue

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S. L. A. of whicli they took the land only provided for interim investment in
Sect. 32. government securities. {Re Hanbury^s Trusts, W. N. 1883, p. 116;

31 W. E. 784.)

As to whether money in court, beinc^ the proceeds of the sale of
realty in a partition action (imder the Partition Act, 1868) and
belonging to infants, is money liable to be re-invested in land by
virtue of sects. 23 — 25 of the Settled Estates Act, 1856 (re-enacted
by the Settled Estates Act, 1877, ss. 34 — 36), which are incorporated
with the Partition Act, 1868, see Mordaunt v. Benwell, 19 Ch. D. 302.
This section does not, of course, authorize for the purposes of
ordinary settlements of personalty the investments authorized by
the present Act, or make them proper trustees' investments for
any purpose except the purposes of this Act. (See Fox v. Dttlhy,
W. N. 1883, p. 29.)

Sect. 33. 33. Where, under a settlement^ money is in the
AppUcationof hands of trustees, and is liable to be laid out in the
i^^o? purchase of land to be made subject to the settlement,
trustees under then, in addition to such powers of dealing therewith
^ti^eut. as the trustees have independently of this Act, they
may, at the option of the tenant for life, invest or
apply the same as capital money arising under this Act.

The marginal note to this section is misleading.

It has been suggested, but apparently without sufficient reason,
that the word "settlement" in this section has a more extensive
meaning than in the interpretation clause (sect. 2, sub-s. 1, ante),
and applies to a will, &c., of personalty directed to be invested in the
purchase of land (see Mackenzie's Trusts, 23 Ch. D. 750, and note on
sect. 21, p. 292, ante)\ although such a will is not a settlement within
the meaning of the interpretation clause.

** Liable to be laid out," must mean, ** directed to be laid out;"
because otherwise every will, &c., which contains a power to invest
trust fimds in land, would be a settlement within the meaning of the
present Act.

The trustees must give effect to the " option " of the tenant for
life. Compare sect. 22, sub-s. (2), ante.

For form of summons applica ble to this section, see Appendix to
the S. L. Act Eules, 1882, Form XVIII., post.

Sect 84. 34. Where capital money arising under this Act is
Application of purchase-moucy paid in respect of a lease for years,
fop°i^^p or life, or years determinable on life, or in respect of
revermon. any othcr estate or interest in land less than the fee
simple, or in respect of a reversion dependent on any
such lease, estate, or interest, the trustees of the settle-
ment or the Court, as the case may be, and in the case
of the Court on the application of any party interested
in that money, may, notwithstanding anytning in this
Act, require and cause the same to be laid out, in-
vested, accumulated, and paid in such manner as, in
the judgment of the trustees or of the Court, as the

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case may be, will give to the parties interested in S.I. A.
that money the like benefit therefrom as they might Sect. 84.
lawfully have had from the lease, estate, interest, or
reversion in respect whereof the money was paid, or
as near thereto as may be.

The object of this section is to prevent a sale made under the Act
of a Kmited interest, or an interest not in possession, from operating
to the prejudice of any party interested .under the settlement,
whether tenant for life or remainderman. The words which direct
apportionment follow, with some verbal improvements, the corre-
sponding words of the Settled Estates Act, 1877, s. 37, which are
identical with the corresponding words of the Lands Clauses Con-
solidation Act, 1845, s. 74. It is conceived that cases under those
sections will form precedents for the interpretation of this. The
Partition Act, 1868 (31 & 32 Vict. c. 40), does not contain any similar
provision. As to the effect of this omission, see Langmeady, Cocker ton^
W. N. 1877, p. 43.

Under the former Acts, the discretion as to apportionment was
exerciseable only by the court.

I. As to Leaseholds.

1. Where leaseholds were taken under the compulsory powers
conferred by the Lands Clauses Act, it was held that, although the
income of the investments representing the purchase-money ex-
ceeded the rents of the leaseholds, the tenant for life was entitled to
an annuity which would exhaust the whole fund in the same number
of years as the leaseholds had to run. {Askew v. Woodhead, 14 Ch.
D. 27.) Where leaseholds were sold under the Settled Estates Act,
and the tenant for life suffered by reason of the sale a diminution
of income, the court directed a calculation to be obtained from an
actuary of the half-yearly sums which would be produced for the
residue of the term by the proceeds of sale, taking interest at £3 per
cent., so as to exhaust the proceeds of sale at the end of the term ;
and ordered that in each half-year the dividends on the investments
then remaining should be paid to the tenant for life, and so much
of the investments should be transferred to him as, with the cash
dividend, would make up the half-yearly sum so to be ascertained ;
the residue of the fund, if any, at the expiration of the life interest
to go to the persons absolutely entitled in remainder. {Re WaUVs
Trusts, 7 L. E. Ir. 554.)

2. Where leaseholds are renewable, and the settlor intended them
to be perpetually renewed, the effect of a compulsory sale is only to
substitute one perpetuity for another ; and the purchase-money will
be invested as capital, and only the annual income paid to the tenant
for life. {Re Wood's Estate, L. E. 10 Eq. 572 ; Hollier v. Bume,
L. E. 16 Eq. 163 ; Maddy v. Hah, 3 Ch. D. 327.)

3. And the same rule holds good when the leaseholds are not in
fact renewable, but the settlor expected that they would be renewed
and contemplated their perpetual renewal ; though, in fact, renewal
is refused. {Re Barhet's Settled Estates, 18 Ch. D. 624.)

As to the destination of a fund intended for the renewal of lease-
holds, of which renewal was in fact refused, see Gould v. Tripp,
W. N. 1883, p. 72.

C. Y

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.8. L. A.

Sect. 34. n. As to Beversions.

1. Where the rent was only nominal, the whole purchase-money
was directed to be invested and accumulated during the term. {Ex
parte The Hector of Lambeth, 4 Ey. Ca. 231.)

2. Where the rent, not being nominal, was less than the dividends
on the invested purchase-money, the tenant for life received an
amount equal to the rent, and the surplus was accumulated. Also,
at the time when any lease would have determined, the tenant for
life became thenceforth entitled to a proportionate share of the in-
come accruing upon the accumulations. {Re Wilkes^ Estate, 16 CL
D. 597 ; which see, for form of order, at p. 602.)

3. It is conceived that, if the rent should be less than the dividends,
the tenant for life would in general be entitled to no more than the
dividends. But cases might arise in which this principle might
reasonably be modified. For example, if the property should be let
at a rent greater than a rack-rent (which sometimes happens by
the depreciation of a neighbourhood), so that an element in the
valuation would be the lessee's liability to pay an excessive rent
during the residue of a term, it would be reasonable, and in accord-
ance with the apparent intent of this section, that the tenant for
life should be allowed some advantage to compensate his loss from
the conversion. This might be effected by investing the amount
due to that particular element in the valuation in the purchase of
an annuity to continue during as many years as the term had to
nm, and permitting the tenant for life, so long as he lived, to receive
the annuity. Or a proportionate allowance might be made out of
the capital to the tenant for life, such as would, in the same number
of years as the term had to nm, exhaust the amount due to the
particular element above mentioned.

A legal estate for life may by will, but not by deed, be created
out of a term of years. See note on the Conv. Act, 1881, sect. 65,
8ub-s. (2), ante. Such a bequest would be specific, and would,
therefore, imply no duty to convert. {Vauahan v. Buck, 1 Ph. 75;
Hubbard Y. Young, 10 Beav. 203; Mills v. Brown, 21 Beav. 1.)

As to the service of notices in applications to the court under this
section, see the S. L. Act Eules, 1882, r. 4, post.

Sect 36. 36, — (1.^ Where a tenant for life is impeachable
S^ ti^r ^^^ waste m respect of timber, and there is on the
and part of * Settled land timber ripe and fit for cutting, the tenant
ppoo^ to be f Qp lif ^^ Qj^ obtaining the consent of the trustees of the

settlement or an order of the Court, may cut and sell

that timber, or any part thereof.

(2.) Three fourth parts of the net proceeds of the

sale shall be set aside as and be capital money arising

imder this Act, and the other fourth part shall go as

rents and profits.

Timber plcmted as an improvement under the provisions of this
Act, may not be cut down except in proper thinning ; see sect. 28,
8ub-s. (2), ante.

At common law, a tenant for life is entitled to cut timber for his
own use and benefit only so far as may be necessary to furnish reason-

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able house-bote, plough-bote, and bay-bote. ( Vide tupruy p. 75.) S. L. A.
If expressly made not impeacbable for waste, be may cut ripe Sect. 86.

timber ; wbich, if cut during tbe continuance of bis tenancy, belongs

to him. {Lewis Bowles^ Case, 1 1 Eep, 79 b ; see tbe 7tb resolution
at p. 82 b.) But be would be restrained in equity from cutting
tiniber planted or left standing for shelter or ornament. {Roll and
Lord Samerviliey 2 Eq. Ca. Ab. 759 ; and see Seton, 4th ed. 191, 192, •
Tu.L. C. 3rd ed. 115; 1 Wh. & Tu. L. C. 5th ed. 751 ; and the
cases there cited.) It seems that such ornamental timber might be
properly thinned. (Baker v. Sebright^ 13 Ch. D. 179, at p. 188.)

The question, whether the timber is deemed to come within the
description of ornamental, depends solely upon the intention of the
settlor. {Coffin v. Coffin, Jac. 70.) With this decision it is difl&cult
to reconcile the tmreported case there cited by Lord feldon from
Lord Hardwicke, in which a tenant for life was restrained from
cutting down trees which he himself had planted.

Since a tenant for life, whether he is or is not otherwise unim-
peachable for waste, is so impeachable in respect to ornamental
timber, the language of this section seems to include ornamental
timber, and to permit the tenant for life, whether impeachable for
waste or not, to cut it, upon obtaining such consent or order as
in the section mentioned.

Before this Act, the court would not permit timber to be cut on
the application of a tenant for life having no power of cutting, unless
the timber either was itself actually deteriorating, or else was in-
juring other trees. Mere ripeness was not sufficient. {Seagram v.
Knignt, L. E. 2 Ch. 628 ; and the cases there cited at p. 631.) And
when timber, whether ornamental or not, which the tenant for life
could not himself cut, was properly cut with the leave of the court,
the proceeds were invested, and the income given to the successive
owners of the estate, imtil the vesting in possession of the first estate
of inheritance, the owner of which became thereupon entitled to
the capital. {Honywood v. Honywoodj L. E. 18 Eq. 306, at
p. 311.)

As to the cutting of timber under the present section, the trustees
seem, in the absence of fraud, to incur no liability for giving their
consent ; see sect. 42, post. And their consent seems to be con-

If the interference of the court is sought, either in default of
trustees or on the refusal of the trustees to consent, it is conceived
that under ordinary circumstances, if the timber is not decaying,
the court will let it stand ; and that, even when it is decaying, the
court will not order it to be cut down if the remainderman should
object. The latter's right to keep it standing seems superior to the
right of the tenant for life to have it cut.

This power of cutting timber is not one requiring notice of its
exercise to be given to the trustees under sect. 45, post.

Cut timber immediately becomes personal assets, even if cut by an
order of the Court in Lunacy ( Oxenden v. Lord Compton, 2 Ves. 69) ;
or by a bailiff acting without authority {ibid, at p. 74) ; there being
no equity in favour of the heir as against the personal representa-
tives. As to whether an express provision preserving the rights of
the respective parties might be inserted in an order dSrecting timber
to be felled, see Jones v. Green, L. E. 5 Eq. 555, at p. 560, and
He Barker, 17 Ch. D. 241, at p. 245, both cited in Re Freer, 22 Ch.
D. 622, at p. 627. It seems to be ibe better opinion, that such an
insertion would have no effect.


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S. L. A. As to the power to cut timber for executing authorized improve-
Sect. 35. ments, see sect. 29, ante.

'- — '— For forms of summons applicable to this section, see Appendix to

the S. L. Act Eules, 1882, Forms VI, VII.

Sect. 36. 3Q^ The Court may, if it thinks fit, approve of any
^^^^n action, defence, petition to ParKament, parliamentary
or recovery of opposition, OF Other proceeding taken or proposed to
^da^m^dlis be taken for protection of settled land, or of any action
settied. or proceeding taken or proposed to be taken for re-

covery of land being or alleged to be subject to a
settlement, and may direct that any costs, charges, or
expenses incurred or to be incurred in relation thereto,
or any part thereof, be paid out of property subject to
the settlement.

Compare the Settled Estates Act, 1877, s. 17,/w)«/, now repealed.

The costs, &c., here mentioned may be raised by mortgage under
sect. 47, post.

It has been doubted whether, under the Settled Estates Act, 1877,
costs could be paid out of capital to the tenant for life, unless he had
applied to the court before commencing the proceedings. (Re Earl
De la Warr'e Estates^ 16 Ch. D. 587. See, however, Re Tw^ord
Abbey Settled Eetates, 30 W. R 268 ; S. C. nom. Re Willan'e Settled
Estates f 45 L. T. 745.) The words of the present section, '* taken
or proposed to be taken," seem to remove this difficulty.

Sect 37. 37. — (1.) Where personal chattels are settled on
Heirlooms, trust SO as to dovolve with land until a tenant in tail
by purchase is bom or attains the age of twenty-one
years, or so as otherwise to vest in some person be-
coming entitled to an estate of freehold of inheritance
in the land, a tenant for life of the land may sell the
chattels or any of them.

(2.) The money arising by the sale shall be capital
money arising under this Act, and shall be paid^ in-
vestea, or applied and otherwise dealt with in like
manner in all respects as by this Act directed with
respect to other capital money arising under this Act,
or may be invested in the purchase of other chattels,
of the same or any other nature, which, when purchased,
shall be settled and held on the same trusts, and shall
devolve in the same manner as the chattels sold.

(3.) A sale or purchase of chattels under this section
shall not be made without an order of the Court.

Though the marginal note mentions only heirlooms, the sectioa
deals with sometlung quite different. Heirlooms properly so
called are not personal chattels, but particular chattels which, by
the customs of particular places, attend the inheritance. Heir-

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looms proper are not deviseable. (Co. Litt. 18 b, 185 b ; 2 Bl. Com. SLA
427.) Sect.' 37.

Intermediate between heirlooms proper and the chattels which

are the subject of the present section, are certain chattels, such as
ensigns of honour, which are in the nature of heirlooms, but differ
therefrom in that their descent to the heir is not due to particular
local custom. {Frances v. Ley^ Cro. Jac. 366 ; Earl of Northumber-
land's Case, Owen, 124.)

Neither of the above-mentioned classes of chattels is within the
present section, which refers to mere personal chattels, having no
peculiar status in the eye of the law, arbitrarily settled upon trust
to devolve with lands.

Personal chattels are sometimes settled, not so as to devolve with
land, but directly upon trusts limited by analogy to the uses of a
strict settlement, so far as the law permits. (See Shelley v. Shelley^
L. E. 6 Eq. 540). It has been doubted (but, according to V.-C.
Wood, in Shelley v. Shelley, supra, at p. 546, the doubt has not been
approved) whether things in gross (which differ numero tantumy non
specie) such as money, not having, like family jewels, an individual
value and interest, can be settled directly upon such trusts, apart
from and without reference to a settlement oi lands, or unless there
is a trust to purchase lands. (See Green v. Ekins, 2 Atk. 473, at
p. 476.) It 18 plain that this section refers only to chattels de-
volving with land.

On the vesting of chattels, which are subject to the same limita-
tions as realty in strict settlement, see note on the Conv. Act, 1881,
sect. 65, sub-s. (5), ante. The proper mode of settlement is to make
them subject to the same linutations as the realty, with a proviso
that they shall not vest absolutely in any person made tenant in tail
by purchase of the realty, unless he shall attain twenty-one, but on
the death of such person imder twenty-one shall devolve as nearly
as possible in the same manner as the realty.

The court has assumed jurisdiction to order a separate sale of
chattels so settled by will during the minority of an ii^ant tenant in
tail of the lands, in order to pay off mortgages affecting the lands
as part of the testator's estate, when satisfied that it would be for
the benefit of all parties. {Fane v. Fane, 2 Ch. D. 711.) But such
a sale cannot (apart from the present section) be ordered merely
upon the ground of benefit to the parties, when there are no charges
upon the testator's estate. {D^Eyncourt v. Gregory, 3 Ch. D. 635.)
In the last cited case, Jessel, M. E., held that the court could do
nothing beyond sanctioning an application to parliament. The
object of the present enactment is to save the expense of such appli-
cations ; and the court will probably in future only give leave for a
sale either for the purpose of clearing off incumbrances or in cases
where it would have sanctioned an application to parliament.

For form of summons applicable to this section, see Appendix to
the 8. L. Act Eules, 1882, Form VH., post.

X. — Trustees.

38. — (1.) If at any time there are no trustees of a Sect. 38.
settlement within the definition in this Act, or where ^^£^2^^*
in any other case it is expedient, for purposes of this comt. ^
Act, that new trustees of a settlement be appointed,

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S. L. A. the Court may, if it thinks fit, on the application of
Sect 88. the tenant for life or of any other person having,
under the settlement, an estate or mterest in the
settled land, in possession, remainder, or otherwise,
or, in the case of an infant, of his testamentary or
other guardian, or next friend, appoint fit persons to be
trustees under the settlement for purposes of this Act.

For the definitioii of trustees of a settlement '^ for purposes of this
Act," see sect. 2, sub-s. (8), ante.

The words, "if at any time there are no trustees," remove a
doubt which once existed as to the practice imder 13 & 14 Vict. c. 60,
s. 32, and 15 & 16 Vict. c. 55, s. 9. (See Ee Moore, 21 Oh. D. 778,
and cases there cited.)

Trustees specially appointed for purposes of the Act, and distinct
from the trustees of the settlement, seem to have no power to
appoint new trustees of their own class, either by virtue of the Conv.
Act, 1881, sect. 31, ante, or otherwise. That section seems to refer
only to trustees in whom trust property is vested. (See sub-s. 4
thereof.) If the trustees are trustees for purposes of the Act by
virtue of having a present power of sale, or a power to consent, as
mentioned in sect. 2, sub-s. (8), aniey they doubtless have power
to appoint their successors. And though a power contained m the
settlement to appoint new trustees of the kind last mentioned would
enable trustees for purposes of the Act to be appointed, it is lees
clear that a power could be given to appoint distinct trustees for the
purposes of the Act only. Persons nominated under a power do
not seem to be " declared to be trustees " by the settlement.

In certain cases, where no trustees of the settlement for puiposes
of the Act exist, such trustees must be appointed before certain
powers given by the Act can be exercised. (See sect. 45, post,)

As to the appointment of trustees in relation to the properly of
infants, see sect. 59, and note thereon, post.

It will be necessary to appoint trustees for purposes of the Act,
if the trustees of the settlement have only a deferred power of sale.
{Wheelwright v. JFalker, 23 Ch. D. 752.)

Trustees appointed by the court shoiud be independent persons,
in order that the interests of remaindermen may be adequately pro-
tected. The tenant for life, or a person who might become tenant
for life, will not be appointed a trustee. (Re JIarropU Trusts, 24
Ch. D. 717.)

In Wheelwright v. Walker, supra, at p. 763, Kay, J., refused to
appoint the solicitor of the tenant for life, who happened to be a

Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 38 of 53)