2. The receipt for the last payment of the rentcharge subject to which the land is sold must be produced. 3. The certificate of the Board of Agriculture declaring the land freed from the rentcharge created by the indenture of 18 must be abstracted in chief and produced. 4. The order for redemption of the annuity of £ must be abstracted in chief and the original or office copy order and certificate of payment must be produced. 5. Who is the legal personal representative of A. B., the annuitant? The receipt for the last payment of A. B.'s annuity and for the apportioned part of the annuity up to the date of A. B.'s death must be produced. 6. Either Mrs. C. D. must release her annuity or application must be made to the court, under the provisions of section 5 of the Conveyancing Act, 1881, to have the land declared freed from the incumbrance, and the succession duty which will be payable at Mrs. C. D.'s death must be provided for. 7. Is the annuitant A. B. alive or dead? If alive, he must join in the conveyance to release his annuity. If dead, his death must be proved in the usual way. 8. The annuity of £ charged on the property must be apportioned, and so much thereof as accrued prior to the date fixed for completion must be paid by the vendor. ANTE-NUPTIAL SETTLEMENTS. See SETTLEMENTS. ANTERIOR TITLE. See ROOT OF TITLE. ANTICIPATION, RESTRAINT AGAINST. It is only in the case of the equitable or statutory separate estate of a married woman, and while she is actually covert, that any restraint against anticipation is allowed by law. A gift of property to a woman for her separate use without power of anticipation prevents her from alienating either the corpus or the income during any coverture. Prior to the Married Women's Property Act, 1882 (s), a restraint against anticipation of income given to a married woman was of no avail, unless the income was given to her for her separate use, and a gift to her separate use was not implied from the mere existence of a restraint against anticipation (t). Since the 31st December, 1881, the Court, notwithstanding that a married woman is restrained from anticipation, has had power with her consent to bind her interest in any property (u). A restraint against anticipation does not prevent the disposition of the property by will, nor the exercise by a married woman of any power under the Settled Land Acts (x), and it is put an end to by divorce or judicial separation (y). See ALIENATION, RESTRAINT ON. Requisitions. 1. Mrs. A. B., one of the vendors, is restrained from anticipating her interest in the property sold. It is presumed that she is a widow, and that she has not married again. The death of her husband must be proved. 2. Mrs. C. D. must join in the mortgage, and an order must be obtained under the Conveyancing Act binding her interest notwithstanding the restraint on anticipation. APPOINTMENT OF PERSON TO CONVEY. (s) 45 & 46 Vict. c. 75. (t) Stogdon v. Lee, (1891) 1 Q. B. 661; 60 L. J. Q. B. 669; 64 L. T. 494; 39 W. R. 467. 44 & 45 Vict. c. 41, s. 39. (x) 45 & 46 Vict. c. 38, s. 61 (6). (y) Munt v. Glynes, 41 L. J. Ch. 639; 27 L. T. 366; 20 W. R. 823. APPOINTMENT OF TRUSTEES. APPOINTMENTS. As to the execution of powers of appointment, whether general or special, the common law rule was that an intention to exercise the power must appear in the instrument by which the power was exercised, and in order to show such an intention there must be either a reference to the power or to the property subject to the power. This rule has been altered as regards general powers exercised by wills made or republished after the 31st December, 1837, wherein general devises of real estate and general bequests of personal estate are construed to include real and personal estate over which the testator has a general power of appointment (y). The formalities to be observed on the execution and attestation of powers must be noticed. (1) Powers exerciseable inter vivos. If exercised by any instrument before the 13th August, 1859, all the formalities required by the instrument creating the power must be observed (z). If exercised on or after that date, either all the formalities required by the instrument creating the power must be observed, or the power must be exercised by deed executed in the presence of and attested by two witnesses (a). (2) Powers exerciseable by will. If exercised by a testamentary instrument before the 1st January, 1838, all the formalities required by the instrument creating the power must be observed. If exercised by a testamentary instrument on or after that date, the instrument must be executed as a will. In cases where a testator exercises a general power of appointment over real estate by will and dies after the (y) 7 Will. 4 & 1 Vict. c. 26, s. 27. (z) Hawkins v. Kemp, 3 East, 410. (a) 22 & 23 Vict. c. 35, s. 12. 31st December, 1897, the legal estate in such real estate passes to his legal personal representative (b). A married woman has always been able to exercise powers of appointment, whether by deed or will, in the same manner as if she was a feme sole. An infant cannot exercise over real estate a power coupled with an interest in himself, but as regards personal estate he can do so where an intention appears that the power should be exerciseable during minority (c). In the case of sales made after the 31st December, 1881, a purchaser is not entitled to the production or abstract of any document dated or made before the time prescribed by law, or stipulated for the commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser (d). Before the 1st January, 1882, powers simply collateral (that is, powers given to a person not taking any estate) could not be released; but since that date a person may by deed release or contract not to exercise a power, whether or not it be coupled with an interest (e); but a power coupled with a duty cannot be released (ƒ). If a deed executed for the purpose of exercising a power of appointment appoints to A. to the use of B., B. will take an equitable estate only, while the legal estate will pass to A. A power of appointment must be exercised bonâ fide for the end designed, otherwise the appointment is corrupt and void and will be set aside so far as it is a fraud upon the power, but if any part of the appointment is free from the fraud it will stand good (g). A power of appointment ceases on the death of the donee unless expressly given to his successor. See DEATH DUTIES-PERPETUITIES. (b) 60 & 61 Vict. c. 65, s. 1 (1), (2). (e) Re D'Angibau, 15 Ch. D. 228; 49 L. J. Ch. 756; 43 L. T. 135; 28 W. R. 930. (d) Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 3 (3). (e) Ibid. s. 52. (f) Re Eyre, Eyre v. Eyre, 49 L. T. 259; W. N. (1883) 153. (g) Aleyn v. Belchier, 2 W. & T. 308; 1 Eden, 132. Requisitions. 1. The deed of appointment of 1857, being executed before the 13th August, 1859, evidence must be adduced that it was executed with all the formalities required by the instrument creating the power. 2. It seems that A. B. has a power of charging the estate purchased with various sums of money. He must be a party to the conveyance and release this power. 3. A. B., deceased, had a power of charging the property contracted to be sold with an annuity in favour of his wife. Was this power ever exercised? 4. The power of appointment in the settlement of 18 given to A. B. requires exercising by a deed with two APPORTIONMENT. It often happens that land subject to a periodical payment is divided and sold to different purchasers, and the sum payable apportioned between the respective purchasers; it is necessary for a purchaser of any part of land so divided to see that the apportionment has been regularly made so as to bind the person in whose favour the sum is payable. A common case in which apportionment takes place is that of tithe rentcharge, which is dealt with elsewhere (). It is also frequently resorted to in the case of annuities, quit rents, customary rents payable in respect of copyhold and customary freehold property, and also in case of the rents of leasehold properties held under one lease. (h) See TITHE RENTCHARGE, p. 319. 1 |