Laws.

of the proviso; and that accordingly the estate settled on him shifted away to the next in remainder. In contrast with this case stands that of Meyrick v. Laws (≈). Meyrick v. In this case there was a similar shifting clause, the estate being settled on the second son and his issue male, with a shifting clause on such son or his issue male becoming entitled in possession to estates in Shropshire settled on the marriage of the father of such second son. The father and his eldest son disentailed the Shropshire estates, and limited a portion of them to the father in fee; and resettled the remainder of the Shropshire estates in such a way that the second son became ultimately tenant for life thereof, subject to charges which had been created thereon by his father and elder brother. It was held that, inasmuch as the second son acquired an interest in the Shropshire estates under what was substantially a new title, and the estates were moreover diminished in quantity, the shifting clause did not take effect.

(-) L. R., 9 Ch. 237.

Powers of leasing.

Act to facilitate leases

and sales of settled estates.

Tenant for

life, &c. may grant leases for twenty

one years.

LECTURE XXI.

I Now come to consider the subject of powers of leasing
possessed by tenants for life. Prior to the passing of
the Act to facilitate leases and sales of settled estates (a),
a tenant for life had no power to grant a lease of the
lands of which he was tenant for life, so as to bind
those in remainder, unless the settlement under which
he claimed were made by way of use under the Statute
of Uses (b), or by will, and an express power to grant
leases were conferred upon him by such settlement.
But this Act, which came in force on the 1st of
November, 1856 (c), empowers every tenant for life
under a settlement made after the Act came in force,
to lease for twenty-one years without fine at the best
rent (d). This Act was amended and extended by
several other Acts (e); and the whole of the Acts have
now been repealed, amended, and consolidated into one
Act, called the Settled Estates Act, 1877 (f).
Act commenced on the 1st of November, 1877 (g). It
enacts () that it shall be lawful for any person entitled
to the possession or to the receipt of the rents and
profits of any settled estates for an estate for any life,
or for a term of years determinable with any life or
lives, or for any greater estate, either in his own right
or in right of his wife, unless the settlement shall con-

(a) Stat. 19 & 20 Vict. c. 120.
(b) Stat. 27 Hen. 8, c. 10; ante,

pp. 36, 37.

(c) Sect. 46.
(d) Sect. 32.

(e) Stats. 21 & 22 Vict. c. 77; 27 & 28 Vict. c. 45; 37 & 38 Vict. c. 33; and 39 & 40 Vict. c. 30.

This

(f) Stat. 40 & 41 Vict. c. 18. This Act was not passed when this Lecture was delivered, but I have thought it better to incorporate it in the text. (g) Sect. 61. (h) Sect. 46.

tain 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 curtesy, or in dower, or in right of a wife who is seised in fee (i), 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 shall 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 non-payment 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 lease be executed by the lessee. This enactment Difference differs from that contained in the Act to facilitate leases two enactand sales of settled estates in extending the term to ments. thirty-five years for estates in Ireland, in not requiring the lease to take effect in possession, in requiring the condition of re-entry to be on non-payment of rent for twenty-eight days or some less period, instead of "for a period not less than twenty-eight days," and in omitting to require a condition for re-entry "on non-observance of any of the covenants or conditions" contained in the lease.

between the

Against

whom such leases shall be valid.

Evidence of execution of counterpart by lessee.

Tenants for life, &c. to be deemed entitled notwithstanding incumbrances.

Every demise authorized by the Settled Estates Act, 1877, is valid against the person granting the same, and all other persons entitled to estates subsequent to the estate of such person under or by virtue of the same settlement, if the estates be settled (). The execution of any lease by the lessor or lessors shall be deemed sufficient evidence that a counterpart of such lease has been duly executed by the lessee as required by the Act (1). And for the purposes of the 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 incumbered, either by himself or by the settlor, or otherwise howsoever to any extent; but the estates or interests of the parties entitled to 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 aforeSaving rights said, unless they shall concur therein (m). Nothing in the Act is to authorize the granting of a lease of any copyhold or customary hereditaments, not warranted by the custom of the manor, without the consent of the lord, nor otherwise prejudice or affect the rights of any lord of a manor (n). The above provisions extend only to settlements made after the 1st of November, 1856 (o), the time when the Act to facilitate leases and sales of settled estates came in force. In a recent case, where the legal estate was vested in trustees in trust, after paying certain charges, to hold the surplus of the rents and profits for the separate use of a married woman during her life, it was held by the present Master of the Rolls that she had no power to grant a lease by virtue of the 32nd section of the Act for leases and sales of settled estates, which in this respect is similarly worded to the 46th section of the present Act. The

of lords of

manors.

name of this case is Taylor v. Taylor (p). This case Taylor v. was affirmed on appeal (9). But, in affirming this Taylor. decision, the Lord Justice James remarked that he should have required more time to consider the Act of Parliament if he thought that the decision of the Master of the Rolls could be construed as a decision that a tenant for life, who is to receive the rents and profits during her life through the hands of a trustee, was not the tenant for life within the meaning of the Acts; but he took the decision of the Master of the Rolls to be based on the very peculiar provisions of the will.

power of

If it be wished to enable the tenant for life to grant leases on different terms from those above mentioned, or if the property is suitable for granting building or mining leases, powers of leasing for these purposes ought to be contained in the settlement. Powers of leasing, like all other powers contained in settlements, take effect by virtue of the Statute of Uses. A power of leasing cannot be inserted in any settlement that is not made under that statute; although it may be inserted in a will by way of executory devise. The Operation of operation of a power of leasing is, so far as it goes, leasing. of the same nature as a shifting clause, of which I spoke in the last Lecture (). The use is, by the power of leasing, appointed to the lessee for the term of years mentioned in the lease. The lessee takes as if he had been named in the settlement as the person to hold the land for the term appointed (s). And with regard to the rent and covenants, the effect is the same as if the lease had been granted the day before the settlement by the settlor, when he was seised in fee, and he had made the settlement immediately afterwards. The rent is carried to each person successively entitled under the settlement, in the same way as it would have been if

(P) L. R., 20 Eq. 297.
(2) L. R., 3 Ch. D. 145.

(r) Ante, p. 291.
(s) Ante, pr. 36, 37.