Henry Williams Challis Henry J. Hood.

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

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the Master of the Rolls in Ireland, the Lord Chief Justice of
the Common Pleas, and the Lord Chief Baron, and four other
judges of the superior courts in Ireland to be from time to time
appointed for the purpose by the Lord Chancellor of Ireland in
writing, imder his hand, such appointment to continue for such
time as shall be specified therein, and such rules and orders may
from time to time be rescinded or altered by the like authorities
respectively, and all such rules and orders shall take effect as
general orders of the Court.

43. All general rules and orders made as aforesaid shall be ^^' **•
laid before each House of Parliament within forty days after ^J^ ^ be



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386



APPENDIX.



Sect 41

Conomreat
jorisdiotion of
the Court of
Ghanoeryof
the County
Palatme of
Lancaster.



Sect 45.

Application
^ r le



laid before the making thereof if Parliament is then sitting, or if not.
Parliament, -^ithin forty days after the oommenoement of the then next
ensuing session ; and if an address is presented to Her Majesty
by either House of Parliament within the next subsequent forty
days on which the said House shall have sat, praying that any
such rule or order may be annxdled, Her Majesty may there-
upon by Order in Council annul the same, and the rule or
order so annulled shall thenceforth become void and of no effect,
but without prejudice to the validity of any proceedings which
may in the meantime have been taken under the same.

44. The powers vested in the High Court of Justice bv this
Act may, so far as relates to estates within the County Palatine
of Lancaster, be exercised also by the Court of Chancei^ of the
said County Palatine ; and general rules and orders of Court for
the purposes aforesaid, so far as relates to proceedinfi^s in the
said Court of the said County Palatine, shidl be made by the
Chancellor of the Duchy and County Palatine of Lancaster,
with the advice and consent of any one or more of the persons
authorised under this Act to concur in the making of general
rules and orders relating to proceedings in England, and also
with the advice and consent of the Yice-Chancefior of the said
County Palatine.

45. It shall and may be lawful for any person who under
the provisions of this Act may make an application to the Court
of Chancery in Lreland for the lease or sale of a settled estate,
instead of making such application to the said Court of Chan-
cery in Lreland to apply to the Landed Estates Court, Lreland,
for the purpose of having the lease or sale of such settled estate
under the said last-mentioned Court ; and thereupon it shall be
lawful for the said Landed Estates Court, Ireland, to exercise
all the powers conferred upon the Court of Chancery in Ireland
in relation to leases or sales of such nature under the provisions
of this Act, save that the judge in the case of a sale shall him-
self execute the conveyance to the purchaser under such sale,
and save that such conveyance shall have the like operation and
effect, and confer such indefeasible title to the purchaser as if
such sale had been made and such conveyance had been executed
upon an application for the sale of an incumbered estate under
the Act of the twenty-first and twenty-second years of Her
Majesty, chapter seventy-two : Provided always, that the
Landed Estates Court, Ireland, shall make such investigation
of the title and circumstances of the said estates as shall
appear expedient, and also in cases of sales as in other eases
preliminaiy to sales conducted in the said Landed Estates
Court, Ireland: Provided also, that eveiy decision and order
in the course of such proceedings shall be subject to appeal
to the Court of Appeal in Chancery as in other cases under the
said Act.

Sect 46. 40^ It gtaii \yQ lawful for any person entitled to the posses-
Tena^for ^qj^ q^ Jq t^^ receipt of the rents and profits of any settled



for lease or
sale in Ireland
may be made
to Landed
Estates Ck>Qrt.



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THE SETTLED ESTATES ACT, 1877. 387

estates for an estate for any life, or for a term of years firrant leases
determinable with any life or lives, or for any greater estate, ^^^ ^i years.
either in his own right or in right of his wife, unless the settle-
ment shall contain an express declaration that it shall not be
lawful for such person to make such demise ; and also for any
person entitled to the possession or to the receipt of the rents
and profits of any unsettled estates as tenant by the courtesy,
or in dower, or in riffht of a wife who is seised in fee, without
any application to the Court, to demise the same or any part
thereof, except the principal mansion house and the demesnes
thereof, and other lands usually occupied therewith, from time
to time, for any term not exceeding twenty-one years so far as
relates to estates in England, and thirty-five years so far as
relates to estates in Ireland, to take effect in possession at or
within one year next after the making thereof ; provided that
every such demise be made by deed, and the best rent that can
reasonably be obtained be thereby reserved, without any fine
or other benefit in the nature of a fine, which rent shaU be
incident to the immediate reversion; and provided that such
demise be not made without impeachment of waste, and do
contain a covenant for payment of the rent, and such other
usual and proper covenants as the lessor shall think fit, and also
a condition of re-entry on nonpayment of the rent for a period
of twenty-eight days after it becomes due, or for some less
period to be specified in that behalf ; and provided a counterpart
of every deed of lease be executed by the lessee.

47. Every demise authorised by the last preceding section Sect 47.
shall be valid against the person granting the same, and all Against
other persons entitled to estates subsequent to the estate of such '^liom saob.
person, under or by virtue of the same settlement if the estates ^^^^^ -
be settled, and in the case of unsettled estates against the wife

of any husband granting such demise of estates to which he is
entitled in right of such wife, and against all persons claiming
through or under the wife or husband (as the case may be) of
the person granting the same.

48. The execution of any lease by the lessor or lessors shall Sect 48.
be deemed sufficient evidence that a counterpart of such lease Evidence of
has been duly executed by the lessee as required by this Act. ^JSnto^irt

lease Ij

49. All powers given by this Act, and all applications to the lefl«©®-
Court under this Act, and consents to and notifications respect- ^^^ *9.
ing such applications, may be executed, made, or ffiven by, and I^^v^ion as
all notices under this Act may be given to guardians on l^half J^ti^^&o.
of infants, and by or to committees on behalf of lunatics, and

by or to trustees or asognees of the property of bankrupts,
debtors in liquidation, or insolvents : Provided nevertheless, mat
in the cases of infant or lunatic tenants-in-tail no application to
the Court or consent to or notification respecting an^ application
may be made or given by any guardian or committee without
the special direction of the Court.



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388



APPENDIX.



Sect 00.

Anumied
woman apply-
ing to the
Conrt, or oon-
senting to be
examined
apart from
her husband.



Sect. 51.

Examination
of married
woman, how
to be made
when residing
within the
jnrisdiotion of
the Court, and
how when
residing
without such
jurisdiction.



Sect 52.

As to applica-
tion by or
consent of
married
women,
whether of
full age or
underage.

Sect. 53.

No obligation
tomaJ^eor
consent to ap-
plication, &c.

Sect 54.

Tenants for
life, &c. to
be deemed
entitled not-
withstanding
incum-
brances.

Sect. 55.

Exception as
to entails



50. Where a married woman shall apply to the Court, or
consent to an application to the Court, under this Act, she shall
first be examined apart from her husband touching her know-
ledge of the nature and effect of the application, and it shall be
ascertained that she freely desires to make or consent to such
application ; and such examination shall be made whether the
hereditaments which are the subject of the application shall' be
settled in trust for the separate use of such married woman
independently of her husband or not; and no clause or pro-
vision in any settlement restraining anticipation shall prevent
the Court from exercising, if it shall think fit, any of the powers
given by this Act, and no such exercise shall occasion any for-
leiture, anything in the settlement contained to the contrary
notwithstanding.

51. The examination of such married woman, when resident
within the jurisdiction of the Court to which such application is
made, shall be made either by the Court or by some, solicitor
duly appointed by the Court for that purpose, who shall certify
under his hand that he has examined her apart from her
husband, and is satisfied that she is aware of the nature and
effect of the intended application, and that she freely desires
to make or consent to the same. And when the married
woman is resident out of the jurisdiction of the Court to
which such application is made, her examination may be
made by any person appointed for that purpose by the Court,
whether he is or is not a solicitor of the Coiut, and such person
shall certify under his hand to the effect hereinbefore provided
in respect of the examination of a married woman resident
within the jurisdiction. And the appointment of any such
person not being a solicitor shall afford conclusive evidence that
the married woman was at the time of such examination resident
out of the jurisdiction of the Court.

52. Subject to such examination as aforesaid, married
women may make or consent to any applications, whether they
be of full age or infants.

53. Nothing in this Act shall be construed to create any
obligation on any person to make or consent to any application
to the Court or to exercise any power.

54. For the purposes of this Act, a person shall be deemed to
be entitled to the possession or to the receipt of the rents and
profits of estates, although his estate may be charged or incum-
oered either by himself or by the settlor, or otherwise howsoever,
to any extent ; but the estates or interests of the parties entitled
to any such charge or incumbrance shall not be affected by the
acts of the person entitled to the possession or to the receipt of
the rents and profits as aforesaid unless they shall concur
therein.

55. Provided always, that nothing in this Act shall authorise
any sale or lease beyond the term of twenty-(me years of any



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THE SETTLED ESTATES ACT, 1877.



389



settled estates in respect of which, under the Act of the thirty- created by
fourth and thirty-fifth years of King Henry the Eighth, chapter ^^^?^'
twenty, " to embar feigned recovery of lands wherein the King's ^ *
Majesty is in reversion," or under any other Act of Parliament,
the tenants-in-tail are restrained from barring or defeating their
estates tail, or where the reversion is vested in the Crown.

56. Nothing in this Act shall authorise the granting of a Scot. 66.
lease of any copyhold or customary hereditaments not warranted, Savine rights
by the custom of the manor without the consent of the lord, nor ^^ lords of
otherwise prejudice or affect the rights of any lord of a manor. ™*^"-

57. This Act shall, except as herein-after provided, apply to Sect. 67.
all matters existing at the time of the passing of tms Act, To what
whether proceedings are actually pending or not, and any pro- settlements
oeedings in any such matter may be continued or taken imder ^^^^^^^ ^
this Act as if the matter originated under this Act, or may be
continued or taken xmder the Acts hereby repealed, or pcurtly

under this Act and partly xmder the said repealed Acts as
occasion may require : Provided always, that the provisions in
this Act contained respecting demises to be made without appli-
cation to the Court shall extend only to settlements made after
the first day of November one thousand eight hundred and fifty-
six.

58« The Acts specified in the schedule to this Act, are hereby Sect 68.
repealed : Provided always, that this repeal shall not affect any- Repeal of
thing done or any proceeding taken under any enactment hereby ^°^'2§^^
rep^ed. ^

59. Nothing in this Act shall interfere with the exercise of Sect 69.
any powers to authorise or grant leases conferred by any Act of Saymg.
Parliament not expressly repealed by this Act.

60. This Act shall not extend to Scotland. Sect 60.

Extent of

fiL This Act shall commence on the first day of November -^^
one thousand eight hundred and seventy-seven.



Sect 61.

Ck>iiimence-
ment of Act.



SCHEDULE.



Oonniwi and Chapter.



19&20yiot. C. 120.
21 & 22 Vict. 0. 77 .

27&2Syiot.c.46 .

37&3SYict. 0.33 .

39&40yiot. 0. 30 .



Title or Short Title.



An Act to facilitate leasee and sales of Settled Estates.
An Act to amend and extend the Settled Estates Act of

1866.
An Act to further amend the Settled Estates Act of

1856.
The Leasee and Sales of Settled Estates Amendment

Act, 1874.
The SetUed Estates Act, 1876.



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( 390 )



A SUMMARY

OF THB

MARRIED WOMEN'S PROPERTY ACT,

1882.



This Act ooDsolidates and extends the proyisions of the Married
Women's Property Act, 1870, (33 & 34 Viet. c. 93), and the Married
Women's Property Act (1870) Amendment Act, 1874, (37 & 38 Vict
c. 50) ; which Acts are repealed as from the 1st January, 1883, the
date of its commencement. The following is a brief sununary of its
chief provisions : —

As regards Women married before the Act :

All property their title to which accrues after the Act, including
eamingfif, is to be their separate property. (Sect. 6.)

All deposits in sayings' banks, annuities, public funds, and shares
in companies and societies, which at the commencement of the Act
are standing in a married woman's name, solely (sect. 6), are to be
taken to be her separate property. This rule is by sect. 8 extended
to property standing in her name jointly with any other person
except her husband, so far as relates to her interest therein.

As regards Women married after the Act :

All property belonging to a woman at her marriage, or afterwards
acquired by or devolving upon her, including earnings, is to be held
by her as a feme sole (sect. 2) ; subject to the provisions contained in
her settlement, if any (sect. 19).

As regards all Women married either before or after the Act :

A married woman may acquire, hold, and dispose of any property as
if she were a feme sole, without the intervention of trustees. (Sect. 1,
sub-s. 1.) She may enter into a contract including the acceptance of
a trustee^p or the office of executor (sect. 24), and making insur-
ances (see post), and may sue and be sued without joinder of her
husband (sect. 1, sub-s. 2), and may be made bankrupt if trading
apart from her husband (sect. 5). Her contracts bmd property
acauired after their date. (Sect. 1, sub-s. 4.) She may lend money
to ner husband, and prove in his bankruptcy, but not in competition
with other creditors for valuable consideration. (Sect. 3.) She has
power to make a will (sect. 1, sub-s. 1), and if she thereby exercises
a general power of appointment, the property thereby appointed



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THE MARRIED WOMEN^S PROPERTY ACT, 1882. 391

beoomes liable for her debts (sect 4). She can make inyestments
in her own name, which will be her separate property unless and
until the contrary is shown (sect. 7) ; but no company is compelled,
oontraiy to its constitution, to place her on the register in respect of
shares to which a liability is attached (ibid.). The same remarks
apply to her interest in joint investments not made jointly with her
husband (sect. 8) ; and she may transfer, or join in a transfer,
without her husband (sect. 9). She may insure her life or that of
her husband, and the policy may be expressed to be for the benefit of
her husband or children, or any of them. (Sect. 11.) Such policy,
if so expressed, will not form part of her estate, and trustees of the
policy moneys may be appointed. (Ibid.) A husband may effect an
insurance in like mannw. {Ibid.)

A married woman may take civil proceedings against all persons,
and may take criminal proceedings against cdl persons, except her
husband while she is livmg with him, for the protection of her pro-
perty. (Sect. 12.) A husband may take criminal, but not civil,
peoceedin^ against his wife. (Sect. 16.)

A married woman remains liable for ante-nuptial debts and con-
tracts (sect. 13) ; and her husband is liable to the extent of any
property acquired by him through his wife (sect. 14). But in the
case of persons married before the Act, such liability is not to be
increased or diminished. A husband and wife may be jointly sued.
(Sect. 15.) A married woman is liable to the parish for the main-
tenance of her husband (sect. 20) and children. (Sect. 21.)

Investments fraudulently made by a married woman, as against
either her husband or creditors, are provided against (sect. 10);
and premiums fraudulently paid on policies sure to be refunded to
creditors out of the policy money (sect. 11).

Questions of title between husband and wife as to property are to
be decided by summons or otherwise in a summary way, subject to
appeal. The County Court has jurisdiction, subject to a right of
removal if the amount in litigation exceeds the prescribed limit.
(Sect. 17.)

Existing settlements are preserved, and future settlements may be
made, including a restraint on anticipation ; but any future settlement
of a woman's property will be valid against her creditors only so
far as a settlement of a man's property would be valid against his
creditors. (Sect. 19.)

At the end of the sections of the new Act, such parts of the former
enactments as wholly or in part correspond therewith respectively are
briefly referred to.

The following cases have been decided since the commencement of
the Act : —

1. A mam^ woman may be administratrix without her husband

consenting or joining in the administration bond. {In the
goods ofAyreSy 8 P. D. 168.)

2. A married woman may sue in her own name for torts committed

before the Act. {James v. Barraud^ 31 W. R. 786.)



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392 APPENDIX.

3. A married woman suing in her own name need not give securit j

for costs. {ThrelfallY. Wilson, 8 P. D. 18.)

4. A married woman may sue in her own name without giving

security for costs, even though the cause of action arose oef ore
the Act. (Severance v. Civil Service Supply Association^ 48 L. T.
485.)

5. Under a gift in a will to a hushand and wife together, both talce

separate shares. {Mander v. Harris, 24 Ch. D. 222.)

6. A married woman may petition for the appointment of new

trustees without her husband being party to the petition.
{Re Outtcin, 31 W. E. 374.)

7. Property held by a married woman as a feme sole under the Act

is not limited " to her separate use," in such a sense as to
bring it within an exception of such last-mentioned property,
from a covenant to settle after-acquired property during cover-
ture. {Re Stonor's Trusts, 24 Ch. D. 195.)

8. In a case where the cause of action accrued prior to the Act,

judgment was entered against a married woman as sole defen-
dant, though the writ did not claim to charge her separate
estate. {Brown v. Morgan, 12 L. E. Ir. 122.)



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( 393 )



THE MARRIED WOMEN^S PROPERTY
ACT, 1882.

(45 & 46 Vict. c. 75.)

An Act to consolidate and amend the Acts relating to the
Property of Married Women. [18th August, 1882.]

Whereas it is expedient to consolidate and amend the Act
of the thirty-third and thirty-fourth Yictoria, chapter ninety-
three, intituled " The Married Women's Property Act, 1870,"
and the Act of the thirty-seventh and thirty-eighth Victoria,
chapter fifty, intituled " Aa Act tp amend the Married Women's
Property Act (1870) : "

Be it enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the
authority of the same, as follows :

^ 1. — (1.) A married woman shall, in accordance with the j)ro- Sect. 1.
visions of this Act, be capable of acquiring, holding, and disposing Married
by will or otherwise, of -any real or personal property as her wom^to be
separate property, in the same manner as if she were a feme sole, hoSILig pro-
without ihe intervention of any trustee. perty ai^ of

(2.) A married woman shall be capable of entering into and ^*'**'^ **
rendering herself liable in respect of and to the extent of her * ®°^®
separate property on any contract, and of suing and being sued,
either in contract or in tort, or otherwise, in all respects as if she
were a feme sole, and her husband need not be jomed with her
as plaintijS or defendant, or be made a party to any action or
other legal proceeding brought by or taken against her ; and
any damages or costs recovered by her in any such action or
proceeding shall be her separate property ; and any damages or
costs recovered against her in any such action or proceedmg shall
be payable out of her separate property, and not otherwise.

(3.) Every contract entered into by a married woman shall
be deemed to be a contract entered into by her with respect to
and to bind her separate property, unless the contrary be shown.

(4.) Every contract entered into by a married woman with
req)ect to and to bind her separate property shall bind not only
the separate property which she is possessed of or entitled to at
the date of the contract, but also aR separate property which she
may thereafter acquire.

(6.) Every married woman carrying on a trade separately
from her husband shall, in respect of her separate property, be
subject to the bankraptoy laws in the same way as if she were
a feme sole.

c. DD



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394



APPENDIX.



Sect. 2. 2. Every woman who marries after the commencement of

Property of this Act shall be entitled to have and to hold as her separate
a woman property and to dispose of in manner aforesaid all real and
S^'l^tobS personal property which shall belong to her at the time of
held by her as marriage, or shall be acquired by or devolve upon her after
a feme role, marriage, including any wages, earnings, money, and property
gained or acquired by her in any employment, trade, or occupa-
tion, in which she is engaged, or which she carries on separately
from her husband, or by the exercise of any literary, artistic, or
scientific skill.

Compare the Act of 1870, ss. 1, 7, 8,

Sect. 3. 3. Any money or other estate of the wife lent or entrusted

Loans by wife by her to her husband for the purpose of any trade or busmees
to husband, carried on by him, or otherwise, shall be treated as assets of her
husband's estate in case of his bankruptcy, under reservation of
the wife's claim to a dividend as a creditor for the amount or
value of such money or other estate after, but not before, all
claims of the other creditors of the husband for valuable con-
sideration in money or money's worth have been satisfied.

Sect. 4. 4, The execution of a general power by will by a married

Execution of woman shaU have the effect of making the property appointed

general liable f Or her debts and other liabilities in the same manner as

^^^^' her separate estate is made liable imder this Act.

Sect. 6. 5, Every woman married before the commencement of this
Property Act shaU be entitled to have and to hold and to dispose of in
^ A^b***^ manner aforesaid as her separate property all real and personal
woman mL- property, her titie to which, whether vested or contingent, and
Tied before whether in possession, reversion, or remainder, shall aoOTue after
??A^ ^ ^ the commencement of this Act, including any wages, eamings,

held by her as , . . , * • ji \. i^ t -T

a feme role, money, and property so gained or acquired by her as aforesaid.
Compare the Act of 1870, ss. 1, 7, 8.

Sect. 6. 6. All deposits in any post office or other savings bank, or in

As to stock, any other bank, aU annuities granted by the Commissioners for

&c. to which the Reduction oi the National Debt or by any other person, and

wom^ls ^ smns forming part of the public stocks or funds, or of any



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 46 of 53)