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FOR A PARTITION.
several portions aforesaid, (including the remuneration of the said E. F., G. H., and I. K.), and of all conveyances, surrenders, and assurances, to be made in pursuance of these articles, (including the expense of three parts of the said principal deed of conveyance or partition), and all and singular other the costs, charges, and expenses incurred in, or attendant upon, or incident to the making of such
partition as aforesaid, shall be borne and paid by the said Provision for the A. B., C. B., and D. B., in equal shares; That in case death of any of the parties.
any of them the said A. B., C. B., and D. B., shall die before or after the said portions shall have been appropriated and awarded as hereinbefore is mentioned, or at any time before the said partition shall be completely effectuated, the heirs, devisees, executors, or administrators of the party or parties so dying, shall be considered and taken as parties to this agreement in the stead of and in like manner as their ancestor or ancestors, testator or testators, intestate or intestates; and shall be bound and obliged to do, make, and execute all such acts, deeds, and things as such ancestor or ancestors, testator or testators, intestate or intestates, were or would have been bound or obliged
to do, make, and execute under and by virtue of these Provision for a presents ; That in case the said E. F., G. H., and I. K., difference of opinion between shall differ in opinion on any of the matters hereinbefore the commission- referred to them, and any two of them shall be of the same
opinion on such matter, then the opinion or decision of such two shall be conclusive as to such matter, and shall have the same force and effect as if all of them had concurred therein; but if each of them the said E. F., G. H., and I. K., shall be of a different opinion on the matter in dispute, then the same shall be referred to such umpire as they or any two of them shall select, or in case no two of them shall agree in selecting an umpire, then an umpire to be selected by lot (a), and the decision of such umpire shall be
Appointment of umpire by lot.
(a) Arbitrators cannot appoint an umpire by lot, unless they are specially empowered so to do. (Harris v. Mitchel, 2 Vern. 485; Wells v. Cooke, 2 B. & Ald. 218). The appointment of the umpire must be the act of the will and judgment of the arbitrators, must be
on for the
conclusive as to such matter, and shall have the same force FOR A and effect as if all of them the said E. F., G. H., and I. K., had concurred therein; That, if the said E. H., or pr
appointment of any commissioner or arbitrator to be appointed in his place new commis. as hereinafter is mentioned, shall die, or decline, or become incapable to act as such commissioner or arbitrator as aforesaid, before the said partition shall be completely effectuated, then, and as often as the same shall happen, the said A. B. shall forthwith appoint some other person to be a commissioner or arbitrator in the stead of the said commissioner or arbitrator so dying, or declining, or becoming incapable to act as aforesaid, [add similar clauses for C. B. to appoint in the stead of G. H., and for D. B. to appoint in the stead of I. K.]; and every such new commissioner or arbitrator so appointed as aforesaid, shall have the same powers as if he had been originally named a commissioner or arbitrator in these presents. In WITNESS &c.
PARTITION AND ACT OF
AGREEMENT to make a Partition, and to FOR A
apply for an Act of PARLIAMENT to give
ARTICLES OF AGREEMENT made and entered
matter of choice, and not of chance, unless the parties consent to or acquiesce in some other mode. (In re Capell, 9 B. & C. 624; S. C. 4 Man & Ry. 555; Ford v. Jones, 3 B. & Ad. 248). But, if the parties acquiesce in the appointment by lot of an umpire, either by the original reference or by subsequent acts, such an appointment is good. (In re Tunno v. Bird, 5 B. & Ad. 488; S. C. 2 Nev. & Man. 288). See, however, Hodson v. Drewry, Jurist, 1838, p. 1088. The law, with regard to the appointment of umpires and their powers, will be found clearly stated in Watson on Arbitration, 72—84.
FOR A PARTITION AND ACT OF
one part; and C. D., of &c., of the other part : WHEREAS
E. B., late of &c., deceased, (the father of the said A. B.), PARLIAMENT. duly made, signed, and published his last will and testament Recital of will, in writing, bearing date the day of July — , and devising a
ate thereby gave and devised his undivided moiety of and in moiety of estate whereby gave and devis to be parted, a messuage, farm, and lands, called — , situate at — ,
in the parishes of - in the county of , and particularly mentioned and described in the schedule hereunder written or hereunto annexed, to his eldest son, F. B., for his life, with remainder to his first and other sons in tail male, with remainder to his second son, the said A. B, for
his life, with remainder to his first and other sons in tail -of death of
male, with remainder to his (the said testator's) right heirs; testator,
AND WHEREAS the said E. B. died in the month of
without having revoked or altered his said will, leaving the -of death of said F. B., his eldest son and heir-at-law (a); AND WHEREfirst tenant for
As the said F. B. died on or about the day of
a bachelor and intestate, leaving the said A. B., his only -ofownership brother and heir-at-law; AND WHEREAS the said C. D. in fee of the
of is seised of or entitled to the other undivided moiety other moiety of the estate, of and in the said messuages, farm, and lands, called
- , with the appurtenances, for an estate of inheritance -of desire to in fee simple; AND WHEREAS the said A. B. hath no make a parti
(a) When the subject-matter of the deed is real estate, it is unnecessary to recite the probate of a will by which the estate has been devised, because probate is not required for a will of real estate, and does not affect its validity. Some practitioners recite the probate in order to preserve evidence of the place where the will may be found, and the date of the probate; but this use of recitals is not correct, (although sometimes convenient), and is hardly justifiable, so long as the progressive stamp-duty subsists.
The recital, that the testator died “ without having revoked or altered his said will,” is improper, because it is a recital of a negative. Unless the contrary were recited, it ought to be presumed that the will was not revoked or altered. The editor has not ventured, however, to dispense with the recital; for, although it is manifestly vicious in principle, it is sanctioned by the uniform practice of conveyancers. It owes its origin, like several other similar recitals, to the practice in bills in equity, in which the statement is made, in order to interrogate the defendant as to its truth. See ante, Introduction, page 8.
PARTITION AND ACT OF
issue male ; AND WHEREAS the said A. B. and C. D. be- for a came desirous of effectuating a partition of the aforesaid messuages and lands, upon the terms and in manner here- PARLIAMENT. inafter mentioned; AND WHEREAS the titles of the said -that titles A. B. and C. D. respectively to the several moieties of and have
proved except in the said messuages, farm, and lands, have been approved in one point. of by the counsel of the said parties respectively, subject to the objection which arises to the title of the said A. B. to his undivided moiety, by reason of the same having been so devised or limited to the use of his first and other sons in tail male, as is hereinbefore mentioned; NOW, for effectu- Agreement that
partition shall ating the aforesaid desire, each of them, the said A. B. be made by and C. D., (so far as relates to the acts and deeds on the G. H. part of him, his heirs or assigns, to be performed), doth hereby agree with the other of them in manner following; (that is to say), that, on or before the day of next, a partition or division of all and singular the said messuages and lands, situate in the several parishes of
- aforesaid, and in the said schedule hereunder written, or hereunto annexed, particularly mentioned and comprised, and of all other the estates in the said parishes (if any), belonging in undivided moieties to them the said A. B. and C. D., into two separate allotments of equal value, or as nearly so as circumstances will permit, shall be made by G. H., of &c., land-surveyor ; That when and as —that allotsoon as such partition or division shall have been made, the a
e appropriated by said A. B. and C. D., or some person or persons authorized lot. by them respectively in that behalf, shall, under the direction and in manner directed by the said G. H., draw lots for the said allotments; That it shall be lawful for the said Money may be G. H. to decide and determine whether any and what sum lity of partition.
paid for equaof money shall be paid for equality of partition, and by which of the parties such money shall be paid; That, when Shares to be asit shall have been determined which of the said allotments
w ralty, and act shall be taken in severalty by the said A. B., and which of Parliament of the said allotments shall be taken in severalty by the said C. D.; and when the said G. H. shall have decided and determined whether any and what sum of money shall be paid for equality of partition, and by which of the parties
ments shall be
red in seve
FOR A PARTITION AND ACT OF PARLIAMENT,
such money shall be paid, the said parties respectively, or their respective heirs or assigns, shall, with all convenient speed, apply to Parliament for an act to confirm the said partition or division, and make, do, and execute all such other acts, deeds, or assurances, as the counsel of the said parties respectively, or their respective heirs or assigns, shall advise or require, for the purpose of vesting such of the said allotments as shall have been decided in manner aforesaid to be taken in severalty by the said A. B., with the appurtenances, in him the said A. B., his heirs and assigns, or to such uses and in such manner as he or they shall direct or appoint, (subject and without prejudice to the devises and limitations contained in the said will of the said E. B., deceased, to or for the benefit of the issue male of the said A. B.); and for the purpose of vesting such of the said allotments as shall have been decided in manner aforesaid to be taken in severalty by the said C. D., with the appurtenances, in him the said C. D., his heirs and assigns, or to
such uses, and in such manner, as he or they shall direct or Commissioner appoint; That the said G. H. shall be and is hereby and plan.
ey authorized to make a survey of the said estates, and to Çosts (except cause a map or plan to be drawn thereof; That the costs, certain parts) to be paid in
charges, and expenses of preparing, engrossing, and exeequal propor cuting this present agreement, and of making such partitions.
tion or division as aforesaid, and of applying for and obtaining an act of Parliament for confirming the same, and of making such survey and such map as aforesaid, and all other costs, charges, and expenses incurred or to be incurred in or about the said partition or division, or in anywise relating thereto, (except the costs, charges, and expenses which have been incurred by the said A. B. in making out the title to his own undivided moiety of the said messuage, farm, and lands, and in investigating the title of the said C. D. to the other undivided moiety thereof, and the costs, charges, and expenses which have been incurred by the said C. D. in making out the title to his own undivided moiety of the said messuage, farm, and lands, and in investigating the title of the said A. B. to the other undivided moiety thereof; and also, except any