others in the event of the tenant for life being incapable of exercising them. By section 63 a settlement of land by way of trust for sale is brought within the limits of the Act. Such is briefly the general effect of the Act. It will be seen that it not only confers powers on the tenant for life, but it goes on to declare that it shall not be possible for him not to have them. No provision defeating his estate on exercise of the powers, no ingenious device for making him substantially a tenant for life but calling him something else, will avail. A tenant for life by any other name will be a tenant for life still, and no position he can occupy, no contract he can enter into, will prevent him from availing himself of the advantages of his situation. If he should be an infant, or even if he should become lunatic, the Act has provided for the contingency; his powers will not be suspended, they will be transferred to others capable of exercising them. The Act seems for the most part very complete and comprehensive. There are, however, one or two points upon which difficulties may not improbably arise in working out its provisions. These points it may be useful to notice beforehand. Certain powers, rights, and duties are by the Act conferred and imposed upon the trustees of the settlement, among them the important power of receiving and giving a receipt for capital money; but by s. 2, subs. 8, the trustees of the settlement are defined to be trustees with power of sale of settled land, or with power of consent to a sale, or the persons if any for the time being by the settlement declared to be trustees thereof for the purposes of this Act. Now although under settlements made previously to the commencement of the year 1883 a power of . sale will generally be found to have been given to the trustees of the settlement, this power will probably in most cases be omitted in deeds drawn after the Act has come into operation. It will not then be sufficient merely to appoint trustees of the settlement; they must be declared to be trustees "for the purposes of the Act," and it seems that the declaration must be extended to cover not only the present but all future trustees. If this declaration is omitted, which is not unlikely unless care is taken, there may be trustees of the settlement to whom money will be incautiously paid but whose receipts will not be valid discharges, or who will purport to sell and convey part of the settled land on behalf of an infant tenant for life but whose attempted exercise of those powers will some day be discovered to have been invalid. Again difficulties are likely to be of not unfrequent occurrence wherever a tenant for life wishes to exercise his powers over an encumbered estate. Most settled estates are subject to incumbrances, such as rent-charges for widows of deceased tenants for life and portions for their younger children. From the rent-charge given to his own wife and from the portions of his own younger children the tenant for life can sell the land discharged, these being charges arising under the same settlement under which he is tenant for life, but from the rent-charge given to his mother and the portions given to his younger brothers and sisters he has no power to release the land, these persons taking under a prior settlement, viz. that made on the marriage of his father and mother. The owner of the rent-charge might be willing and competent to grant a release; but with regard to the portioners, even if these persons were willing to give up some part of their security and to release any part of the settled land which the tenant for life desired to sell, and it cannot be assumed that they would be willing, it is by no means certain or even probable that they would be competent to do so. Some might be infants, some might have married and settled their shares. In either of these events the tenant for life would be unable to sell free from incumbrances and purchasers would decline to complete. It is true that under s. 5 the tenant for life has power to transfer * The same remarks apply to the power of managing estates during a minority given to the trustees by s. 42 of the Conveyancing and Law of Property Act 1881. the incumbrance to any other part of the settled land in exoneration of the part sold; but this must be done with the consent of the incumbrancer which can no more be obtained in the one case than in the other. With regard to a mortgage less difficulty is likely to arise, because mortgages are more readily paid off or transferred, but charges for portions frequently remain unraised for many years, the portioner receiving interest out of the yearly rents and profits of the estate. In order to meet this difficulty so far as may be, a suggestion has been ventured in Precedents XC. and XCI. that the trustees of the term for raising portions should with a view to a sale or other dealing with part of the settled land by the tenant for life under the Act, be invested with a power of releasing that part from any portion not actually raised without the concurrence of the portioner and without receiving any of the purchase money. Trustees have not generally been found to err on the side of temerity and such a power is one which it is conceived might be entrusted to them without much fear of its being used to the prejudice of their cestuis que trust. If preferred the power might be given to the tenant for life in addition to his powers under the Act; see s. 57. Settled estates even allowing for mortgages upon them are generally of large value compared with the amount of the portions, and it would facilitate sales if these incumbrances could more readily be discharged. Moreover it must be remembered that the money produced by the sale will remain subject to the settlement, will be converted into securities or back again into land, or will be expended in improvements upon the remaining lands, by which the incumbrancers will benefit as well as the tenant for life and his successors. On the whole there is a general expectation, even among those who think the Act does not go far enough, that its provisions will be largely used and that the number of transactions under it will be great. It will be important to take care that its directions are strictly complied with, and accordingly a considerable number of precedents have been added to the first part of this book specially adapted for use under the Act. Two other Acts of this year remain to be noticed, the Married Women's Property Act and the Bills of Sale Act. The former completely changes the status of the married woman, but it does not seem to affect or to be intended to affect the existing form of a marriage settlement, except indirectly and to a small extent. It will have its operation chiefly outside the limits of conveyancing by providing women who do not make settlements upon marriage with a sort of parliamentary settlement. In passing the Act relating to bills of sale, the object of the legislature appears to have been to prevent anyone from availing himself of that last plank between him and bankruptcy. The object is laudable for the plank is certain to carry him into deeper water. But other attempts have before now been made to regulate the terms on which one man may borrow from another; and these have only had the effect of rendering the terms harsher for the borrower, until they have been repealed. The present Act contains in its schedule the form of a bill of sale, in accordance with which every bill of sale must be made or it will be void. This prescribed form is intelligible only on reference to the Act, if then; so that the measure is somewhat stringent in its provisions. Since the Solicitors Remuneration Act 1881 came into operation a general order under it has been issued regulating the remuneration of solicitors in matters of conveyancing. The Act and order will be found at the end of the book. |