45 & 46 Vict. c. 38, s. 1. extent. Definition of settlement, tenant for life, &c. (3.) This act does not extend to Scotland. The paramount object of the Legislature in the S. L. Acts, 1882 to 1890, was the well-being of settled land (Bruce v. Ailesbury, 1892, A. C. 365). The general object has been said to be to confer on the present generation of landowners the means of alienation (Cardigan v. CurzonHowe, 30 Ch. D. 536). The S. E. Act, 1877, has little bearing on the construction of the S. L. Act, 1882, which rests on a different principle (Re Aldam, 1902, 2 Ch. 46; a decision as to mining leases). As regards the L. C. C. Act, 1845, decisions thereunder were held applicable on a question under sect. 34 of the S. L. Act, 1882 (Cottrell v. C., 28 Ch. D. 628); but not on a question under sects. 21 and 25 (Re Gerard, 1893, 3 Ch. 257). Generally speaking, cases decided before the present act may have no application to questions thereunder (Re Gladstone, G. v. G., 1900, 2 Ch. 105; Re Aldam, 1902, 2 Ch. 53). II. DEFINITIONS. 2.-(1.) Any deed, will, agreement for a settlement, or other agreement, covenant to surrender, copy of court roll, Act of Parliament, or other instrument, or any number of instruments, whether made or passed before or after, or partly before and partly after, the commencement of this act, under or by virtue of which instrument or instruments any land, or any estate or interest in land, stands for the time being limited to or in trust for any persons by way of succession, creates or is for purposes of this act a settlement, and is in this act referred to as a settlement, or as the settlement, as the case requires (i). (2.) An estate or interest in remainder or reversion not disposed of by a settlement, and reverting to the settlor or descending to the testator's heir, is for purposes of this act an estate or interest coming to the settlor or heir under or by virtue of the settlement, and comprised in the subject of the settlement (ii). (3.) Land, and any estate or interest therein, which is the subject of a settlement, is for purposes of this act settled land, and is, in relation to the settlement, referred to in this act as the settled land (k). (4.) The determination of the question whether land is settled land, for purposes of this act, or not, is governed by the state of facts, and the limitations of the settlement, at the time of the settlement taking effect (7). (5.) The person who is for the time being, under a settlement, beneficially entitled to possession of settled land, for his life, is for purposes of this act the tenant for life of that land, and the tenant for life under that settlement (m). (6.) If, in any case, there are two or more persons so entitled (n) as tenants in common, or as joint tenants, or for other concurrent estates or interests, they together constitute the tenant for life for purposes of this act. (7.) A person being tenant for life within the foregoing definitions shall be deemed to be such notwithstanding that, under the settlement or otherwise, the settled land, or his estate or interest therein, is encumbered or charged in any manner or to any extent (o). c. 38, s. 2. (8.) The persons, if any, who are for the time being, under a 45 & 46 Vict. settlement, trustees with power of sale of settled land, or with power of consent to or approval of the exercise of such a power of sale, or if under a settlement there are no such trustees, then the persons, if any, for the time being, who are by the settlement declared to be trustees thereof for purposes of this act, are for purposes of this act trustees of the settlement (p). (9.) Capital money arising under this act, and receivable for the trusts and purposes of the settlement, is in this act referred to as capital money arising under this act (g). (10.) In this act— (i.) Land includes incorporeal hereditaments, also an undivided share in land (»); income includes rents and profits; and possession includes receipt of income: (ii.) Rent includes yearly or other rent, and toll, duty, royalty, or other reservation, by the acre, or the ton, or otherwise; and, in relation to rent, payment includes delivery; and fine includes premium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift: (iii.) Building purposes include the erecting and the improving of, and the adding to, and the repairing of buildings: and a building lease is a lease for any building purposes or purposes connected therewith (s): (iv.) Mines and minerals mean mines and minerals whether already opened or in work or not, and include all minerals and substances in, on, or under the land, obtainable by underground or by surface working; and mining purposes include the sinking and searching for, winning, working, getting, making merchantable, smelting or otherwise converting or working for the purposes of any manufacture, carrying away, and disposing of mines and minerals, in or under the settled land, or any other land, and the erection of buildings, and the execution of engineering and other works, suitable for those purposes; and a mining lease is a lease for any mining purposes or purposes connected therewith, and includes a grant or licence for any mining purposes: (v.) Manor includes lordship, and reputed manor or lordship: (vi.) Steward includes deputy steward, or other proper officer, of a manor: (vii.) Will includes codicil, and other testamentary instrument, and a writing in the nature of a will: (viii.) Securities include stocks, funds, and shares : (ix.) Her Majesty's High Court of Justice is referred to as the court: (x.) The Land Commissioners for England as constituted by this act are referred to as the Land Commissioners (†): (xi.) Person includes corporation. (i) The Settled Land Acts do not apply to ecclesiastical property (Re Sub-sect. (1). Bath and Wells, 1899, 2 Ch. 138). An award of land to a vicar "and his Settlement: successors does not constitute a settlement within the act (Ex p. Castle Bytham, 1895, 1 Ch. 348). 45 & 46 Vict. c. 38, s. 2. by one instrument; The settlement may consist of one instrument. But a succession must take place under that instrument. And where land was devised to a married woman in fee, the mere fact that her husband might under the general law take an estate by the curtesy did not make the devise a settlement (Bates v. Kesterton, 1896, 1 Ch. 159). Nor did the imposition of a restraint on anticipation make the married woman a tenant for life (ib.; see sect. 61, post). Where land was limited to a married woman for life without power of anticipation, with remainder as she should by will appoint, and in default to herself in fee, it was doubted whether the instrument was a settlement within the section (Re Pocock and Prankerd, 1896, 1 Ch. 302). The last case, however, was held to fall within sect. 58, sub-s. (1) (ix) (ib.). The mere fact that by failure of a contingent remainder in part of the land, which occurred after the death of the tenant for life, that part devolved differently from the rest, did not prevent the settlement from being one settlement during the tenancy for life (Re Freme, Freme v. Logan, 1894, 1 Ch. 1). One instrument may create several settlements requiring separate sets of trustees (see Re Skerritt, 1899, W. N. 240). by several The settlement may also consist of two or more instruments (Wheelinstruments; wright v. Walker, 23 Ch. D. 739; Re Earle and Webster, 24 Ch. D. 148). Where a will directed property to be held on the trusts of a pre-existing settlement, the will and settlement constituted for the purposes of this act one settlement (Re Mundy, 1891, 1 Ch. 399). So where the limitations of the will and deed were stated independently (Re Byng, 1892, 2 Ch. 219). Where an estate was settled by one instrument and afterwards by a separate instrument the equity of redemption in another estate was settled on like trusts, the two instruments formed one settlement within the section (Re Monson, 1898, 1 Ch. 427). Where a direction in the will to accumulate was void under the Thellusson Act and the accumulations went to the next of kin, the will and the act constituted the settlement (Vine v. Raleigh, 1896, 1 Ch. 37). by several successive instruments. Compound settlements. Where family estates have been dealt with by successive instruments, questions have arisen as to what is the settlement. In such a case it was recently laid down in the Court of Appeal, that for the purposes of the act, there might be co-existing at the same time a more comprehensive settlement consisting of several deeds and a less comprehensive settlement constituted by one of the deeds only (Re Mundy and Roper, 1899, 1 Ch. 295; see Re Du Cane and Nettle fold, 1898, 2 Ch. 96). It had been previously held that every derivative settlement was not necessarily part of the settlement for the purposes of the act, whether made by a remainderman (Re Knowles, 27 Ch. D. 707), or by the tenant for life of his life estate (Re Du Cane and Nettlefold, 1898, 2 Ch. 96; see further as to dealings by a tenant for life, sect. 50, post, p. 695; and S. L. Act, 1890, s. 4, and note thereto, post, p. 712). It had also been held that a jointure deed executed under a power in a settlement was not necessarily part of the settlement (Re Keck and Hart, 1898, 1 Ch. 617; see Re Meade, 1897, 1 I. R. 121; Re Tibbits, 1897, 2 Ch. 149). But limitations of a jointure and portions to arise on the death of a tenant for life may be treated as part of the settlement, as being limitations "by way of succession" (Re Mundy and Roper, 1899, 1 Ch. 290; A.-G. v. Owen, 1899, 2 Q. B. 253). Where a tenant for life under a re-settlement desired to sell free from jointures created under powers in previous settlements, the court appointed trustees of the compound settlement consisting of the previous settlements, the jointure deeds and the re-settlement; and held that on the purchase-money being paid to such trustees, the land could be conveyed free from the jointures (Re Ailesbury and Iveagh, 1893, 2 Ch. 345; Re Mundy and Roper, sup.). It seems that a tenant for life who re-settles can, notwithstanding the re-settlement, sell in respect of his old life estate (Re Mundy and Roper, 1899, 1 Ch. 296; see Re Wright and Marshall, 28 Ch. D. 93, a case decided before the S. L. Acts, where by the re-settlement a new life estate was limited "in restoration" of the old life estate). By sect. 22, sub-sect. (1) (i) of the Finance Act, 1894, a settlement in that act means any instrument relating to real or personal property which is a settlement within sect. 2 of the present act, or if it related to real property would be such a settlement. Duty has been held payable in respect of property contingently settled (d.-G. v. Fairley, 1897, 1 Q. B. 698; A.-G. v. Clarkson, 1900, i Q. B. 156), and in respect of a fund held in trust to provide an annuity and subject thereto in trust for A. (A.-G. v. Owen, 1899, 2 Q. B. 253; Re Campbell, 1902, 1 K. B. 113). 45 & 46 Vict. c. 38, s. 2. See, further in connection with the definition of "settlement" in subsect. (1), the cases under S. E. Act, 1877, ante, p. 626. (ii) As to sub-sect. (2) see Re Freme, Freme v. Logan, 1894, 1 Ch. 1. Sub-sect. (2). (k) Where two properties are limited by the same instrument to the Sub-sect. (3). same uses, except that one is subject to a term, they together form one Settled land. settled estate (Re Stamford, 43 Ch. D. 84). It is doubtful whether properties limited by the same instrument to the same tenant for life and after his death to different remaindermen constitute one settled estate (Id. 43 Ch. D. 91; see Re Freme, Freme v. Logan, 1894, 1 Ch. 1). (7) The time of the settlement taking effect is, in the case of a will, the Sub-sect. (4). death of the testator (Re Stamford, 43 Ch. D. 90; see also Re Ailesbury and Iveagh, 1893, 2 Ch. 345; Re Bective, 27 L. R. Ir. 364). (m) Beneficially entitled" means entitled for his own benefit, if there Sub-sect. (5). is anything to be derived from the estate, and not simply as trustee for Tenant for others (Re Jones, 26 Ch. Div. 743; see, however, Vine v. Raleigh, 1896, life. 1 Ch. 41). A person may be " beneficially entitled ' even though he actually receives nothing (Re Jones, 26 Ch. Div. 743; Re Atkinson, Atkinson v. Bruce, 30 Ch. D. 612; see sect. 2, sub-sect. (7)). A trust to pay rents during a person's life to him, his wife and children, or one or more of them, does not make him a tenant for life (Re Atkinson, 31 Ch. Div. 577). Where land was limited to trustees during the life of A. on trust to sell the life estate and hand over the proceeds to A. and B., and A. covenanted not to take the life estate in specie, it was held that A. and B. could together sell as the tenant for life (Re Hale and Smyth, 55 L. T. 151). Where there was a trust in a will for accumulation of rents during the life of the testator's son, who was his heir, such heir was on the expiration of the period allowed by the Thellusson Act held to be a tenant for life or person having the powers of a tenant for life (Re Atherton, 1891, W. Ñ. 85; Vine v. Raleigh, 1896, 1 Ch. 37). "Entitled to possession' means possession as contradistinguished from reversion (Re Atkinson, Atkinson v. Bruce, 30 Ch. D. 612). A trust to allow a lady to occupy a house so long as she desires constitutes her a tenant for life (Re Carne, 1899, 1 Ch. 324; see cases there quoted; Re Llanover, Herbert v. Freshfield, 1902, W. N. 149). As to persons who have the same powers as a tenant for life, see sects. 58-63, post, p. 699 et seq., and cases there quoted. (n) "So entitled" in this sub-section means entitled for life (Re Atkin- Sub-sect. (6). son, Atkinson v. Bruce, 31 Ch. Div. 577; Re Collinge, 36 Ch. D. 516). Several persons constituted under this sub-section the tenant for life (Smith v. Lancaster, 1894, 3 Ch. 439); but not where the shares were separate (Re Osborne and Bright, 1902, 1 Ch. 335). Where trustees have power to distribute rents between one or more of several persons during the life of one of them, these persons do not together constitute a tenant for life (Re Atkinson, sup.). A jointress has not a "concurrent estate or interest" with the tenant for life (Re Ailesbury, 1893, 2 Ch. 357). When one undivided moiety is vested in A. in fee, the tenant for life of the other moiety can sell such moiety alone (Cooper v. Belsey, 1899, 1 Ch. 639; overruling Re Collinge, 36 Ch. D. 516; see also Williams v. Jenkins, 1894, W. N. 176; Smith v. Lancaster, 1894, 3 Ch. 439). (0) Even if the incumbrances exceed the income (Re Jones, 26 Ch. Div. Sub-sect. (7). 740; Williams v. Jenkins, 1893, 1 Ch. 704). A disposition of the entire rent is not an incumbrance within this sub-section (Re Strangways, Hickley v. Strangways, 34 Ch. D. 427). See sect. 50 ( post, p. 695). (p) See S. L. Act, 1890, s. 16, post, p. 716. Trustees with a power of sale subject to the consent of another are trustees for the purposes of this Sub-sect. (8). the settle- Sub-sect. (10) (iii.). act (Constable v. Constable, 32 Ch. D. 233), unless that consent cannot be obtained (Re Johnstone, 17 L. R. Ir. 172); and will be such trustees for the purposes of a sale of heirlooms, though the power of sale does not extend to the heirlooms (Constable v. Constable, sup.). Trustees holding realty on trusts declared of personalty, which included a power to call in and vary investments, were held trustees for the purposes of this act (Re Garnett Orme and Hargreave, 25 Ch. D. 595). Trustees of a term of a thousand years limited immediately before the life estate on trusts inter alia by mortgage, or out of rents, or by other reasonable means, to raise large sums, are not trustees within this definition (Re Carne, 1899, 1 Ch. 324). (4) The following sections refer expressly to sources from which capital money may be derived, viz., S. L. Act, 1882, ss. 11, 18, 22 (7), 31 (1) (ii.), 34, 35 (2), 37 (2); S. L. Act, 1884, s. 4; S. L. Act, 1889, s. 3; S. L. Act, 1890, s. 11 (1). As to moneys which may be treated as capital moneys, see sects. 32, 33 (post, p. 684); Re Mackenzie (23 Ch. D. 750); Re Tennant (40 Ch. D. 594); Re Mundy (1891, 1 Ch. 406); Clarke v. Thornton (35 Ch. D. 314; Re Rosher, Briant v. Rosher (1899, W. N. 134). Moneys arising from an exercise of the powers of a tenant for life under sect. 3 are capital moneys (Cardigan v. Curzon-Howe, 41 Ch. Div. 375). (r) Land includes copyholds (Re Price, Leighton v. Price, 27 Ch. D. 552), a dignity which descends to heirs, such as a baronetcy (Re RivettCarnac, 30 Ch. D. 136; see Re Aylesford, 32 Ch. D. 162), tithes (Re Esdaile, Esdaile v. Esdaile, 54 L. T. 637), and a perpetual rent-charge (Re Bective, 27 L. R. Ir. 364). As to an undivided share, see Cooper v. Belsey (1899, 1 Ch. 639). As to the concluding words of the clause, see Re Jones (26 Ch. Div. 740). See Re Ellesmere, 1898, W. N. 18. The powers and duties of the Land Commissioners are now vested Sub-sect. (10) in the Board of Agriculture (Board of Agriculture Act, 1889). (x.). Powers to tenant for life to sell, &c. III.-SALE; ENFRANCHISEMENT; EXCHANGE; PARTITION. General Powers and Regulations. 3. A tenant for life (i.) May sell the settled land, or any part thereof, or any easement, right, or privilege of any kind, over or in relation to the same; and (ii.) Where the settlement comprises a manor, may sell the seignory of any freehold land within the manor, or the freehold and inheritance of any copyhold or customary land, parcel of the manor, with or without any exception or reservation of all or any mines or minerals, or of any rights or powers relative to mining purposes, so as in every such case to effect an enfranchisement; and (iii.) May make an exchange of the settled land, or any part thereof, for other land, including an exchange in consideration of money paid for equality of exchange; and (iv.) Where the settlement comprises an undivided share in land, or, under the settlement, the settled land has come to be held in undivided shares, may concur in making partition of the entirety, including a partition |