Leaseholds. Copyholds. Trustees of a term. Costs. No diffi. culty in indorsing the appointment. In either case if leaseholds are vested in the trustees, they may be assigned by the deed of appointment, or by a separate deed. If copyholds are vested in the trustees, the deed of appointment should contain a covenant to surrender them; and the surrender should be made immediately after the execution of the deed of appointment, though this is often omitted for the sake of saving expense. Third. Where a new trustee of one of the terms is to be appointed. Here the form is similar to that in the first case except that the term is assigned by the old trustees of the term to the new and continuing trustees, "upon the trusts," &c., as in the first case. The costs of the appointment of new trustees and the transfer of the trust property are properly payable out of the corpus of the estate, although in practice they are often paid by the tenant for life (Carter v. Sebright, 26 Beav. 374). Whenever on the appointment of new trustees it is convenient to indorse one instrument on another, the draftsman will remember that as all the deeds are prepared by the same solicitor, there is not that conflict of duties between solicitors which often interferes with the indorsement of one deed on another. General explanation. PART IV.-DISENTAILING DEEDS. The student is referred to M. L. R. P. 71 for a general explanation of the method of barring an estate tail. On reference to s. 15 of the Fines and Recoveries Act, 1833 (3 & 4 Will. 4, c. 74), he will find that a tenant in tail can dispose of the lands entailed for an estate in fee simple or for any less estate, as against the issue in tail and all persons whose estates are to take effect after the determination or in defeasance of his estate tail. These words require some explanation. Suppose that the limitations be to A. for life, with remainder to B. in tail, with remainder to C. in tail, with remainder to D. in fee simple; with a proviso that if B. inherits a peerage, E. shall (subject GENERAL EXPLANATION. to A.'s life estate if he be living) become entitled in fee simple then if B. (but during A.'s lifetime with his consent given in the manner prescribed by the Act) executes a disentailing deed before he inherits the peerage, he can dispose of an estate in fee simple (subject to A.'s life estate if he be alive) as against his own issue, as against the remaindermen C. and D., persons whose estates are to take effect after the determination of B.'s estate tail, and as against E., whose estate is to take effect in defeasance of B.'s estate tail. 501 inrolled. The disposition by the tenant in tail must be effected by Disposition some one of the assurances (not being a will), by which the to be tenant in tail could have made the disposition if his estate had been "an estate at law in fee simple absolute:" and must be made or evidenced by deed inrolled (formerly in Chancery but now in the Central Office) "within six calendar months after the execution thereof;" Fines and Recoveries Act, 1833, ss. 40, 41. When the estate tail, not being in possession, is preceded Protector. under the same settlement by "any estate for (p). years determinable on the dropping of a life or lives or any greater estate not being an estate for years" (Fines and Recoveries Act, 1833, s. 22, and see ss. 23-33), then the owner of such preceding estate, or, if there be more than one such estate, the owner of the first of them, is called the "protector of the settlement." In certain cases (lunacy, &c.) the Lord Chancellor is protector. The tenant in tail cannot, without the consent of the protector, acquire more than a base fee, i.e., an estate of inheritance so long as he and any of his issue who would have inherited the estate tail had it not been barred are alive; but this is subject to the exception that, if the tenant in tail be entitled to the reversion or remainder in fee immediately expectant on the determination of his estate tail, the consent of the protector is not required. (p) The estate of the protector must be created by the same instrument as the estate tail; Berrington v. Scott, 32 L. J. (N. S.) 125. The settlor may appoint any Who is protector when more than one cedes the estate tail? It should be observed that, when a base fee and the remainder in fee belong to the same person, and there is no intermediate estate in existence, the base fee does not merge in the reversion; but is, ipso facto, enlarged into as large an estate as the tenant in tail could have created with the consent of the protector. When an estate tail has been turned into a base fee, the person who would have been tenant in tail, if the entail had not been barred, can enlarge the estate tail into an estate in fee simple by a disposition under the Act; but, if there be a protector, his consent is required. It must be remembered that, where more than one estate sufficiently large to qualify the owner to be protector precedes the estate tail which is to be barred, the owner of estate pre- the first of such estates which exists at any time is then the protector. Let the limitations be to A. for life, with remainder to his first and other sons successively in tail, with remainder to B. for life, with remainder to his first and other sons successively in tail. Suppose that A. is alive and B.'s eldest son wishes to bar his estate tail, then A. is the protector. Suppose, on the other hand, that A. is dead, and that he has left a son; then such son would be the protector, as regards all the remaindermen in tail. Consent of The consent of the protector may be given in the disprotector how given, entailing assurance itself, or by a separate deed executed on or before the day on which the disposition is made. If the consent is given by a separate deed, the latter must be inrolled, either at or before the time when the disentailing assurance is inrolled. Copyholds (2). A legal tenant in tail of copyholds can disentail by surrender; an equitable tenant in tail, either by surrender or by a deed, which must be inrolled, within six months of its execution, on the court rolls of the manor. (Gibbons v. Snape, 1 De G. J. & S. 621.) The consent of the protector may be given by a deed entered on the court rolls; or, (q) Fines and Recoveries Act, 1833, ss. 50 et seq. No inrolment in the Central Office is necessary; Ib. s. 54. COPYHOLDS. if the copyholds be conveyed by surrender, the consent may be given by the protector himself to the person taking the surrender. 503 Money subject to be invested in the purchase of lands can Money. be disentailed, in the same manner as if the lands had been actually purchased. We will now consider the frame of the disentailing assurance. (See forms in 1 K. & E. 630, Stud. Prec. pp. 79 et seq.) Frame of tailing as the disen In the very simple case where a tenant in tail in possession surance. desires to acquire the fee simple, no recitals appear to be Tenant in tail in posnecessary. In the disentailing assurance he "grants" to a session. grantee to uses, the parcels (described "as situated in " certain parishes) of or to which he is seised or entitled at law or in Equity for any estate in tail male, or in tail under [the instrument creating the estate tail], or otherwise howsoever; "habendum, to the grantee and his heirs, "freed and absolutely discharged from all estates in tail male or in tail, either at law or in Equity of him, the said [tenant in tail], and all estates, rights, interests, and powers to take effect after the determination, or in defeasance of such estates in tail male or in tail, To the use of the said [tenant in tail], his heirs and assigns for ever." Sometimes the parcels are described still more generally, avoiding all reference to the instrument by which the estate tail is created. If the tenant in tail is not in possession, whether the deed be executed with the concurrence of the protector so as to bar the estate tail, or without his concurrence so as to create a base fee, proper recitals should be inserted showing the exact nature of the interest of the tenant in tail. In the habendum say "Subject and without prejudice to the uses and estates limited or created by the said [instrument creating the estate tail], which are prior to the estate tail of the said [tenant in tail], and to the powers annexed to such prior estates so far as such uses, estates, and powers are subsisting or capable of taking effect." Tenant in tail not sion, The settled property often comprises money arising from Money arising from sales. sales, &c., of the settled land, under the powers conferred by the settlement or by statute. The student may have some difficulty in seeing whether this ought to be dealt with as real or personal estate. If the settlement is not put an end to by the disentailing assurance, perhaps the better way is to convey "all that sum of £— (describing it) and the hereditaments to be purchased therewith to A. (a trustee) in fee simple, habendum to A. in fee simple freed, &c., and subject, &c. (as above) to the use of the said [tenant in tail] in fee simple." But, if the effect of the disentailing deed is to put an end to the trust for re-investment, the money may be assigned to the trustee "free, &c.," as above, in trust for A., his executors, &c. Where a base fee is to be enlarged, the parcels may be described as "all and singular the hereditaments situate at, &c., in which an estate in tail male, or in tail, at law or in Equity, has been barred and converted into a base fee, and of which the said if such estate tail had not been barred, would have been actual tenant for such estate as aforesaid." The student is referred to Shelford R. P. Stat. for a full exposition of the Fines and Recoveries Act, 1833 (3 & 4 Will. 4, c. 74). PART V.-RESETTLEMENTS (r). Where the protector gives his consent to the barring of an estate tail, he generally does so in contemplation of a resettlement. We will suppose that he is tenant for life under one of the settlements, analyses of which are given (ante, p. 365 and p. 429), that his wife is still alive, that he has a family, that his eldest son (the first tenant in tail) is about to be married, and that the father has agreed to give his consent to the barring of the son's estate tail, on condition of a resettlement being made. The settlement under which the father is tenant for life will be hereinafter referred to as "the original settlement." (r) See 34 Sol. J. 208, 224. |