possessor, to whom that power would. seem more pro- CHAP. V. perly to have belonged, of all control and voice on the occasion. Besides, much investigation and attention were requisite in order to ensure a good tenant to the præcipe, and numerous recoveries failed for want of a sufficient tenant. If the legislature had omitted to substitute any ceremony for the check afforded by the necessity of constituting a tenant to the præcipe, the adult son, tenant in tail, would have been enabled at pleasure to defeat the family settlement against the wish of the parent, tenant for life; on the other hand, if the legislature had provided a strictly analogous check, it would have given its deliberate sanction to an imperfect and arbitrary species of protection, indirectly resulting from the forms of the old law, and appearing altogether absurd and unintelligible when detached from the judicial proceeding of which those forms were the legitimate basis. Instead of confiding the rights of the remainderman to the technical subtleties of a fictitious process, the framer of the act has originated, on principles of reason and policy, a new functionary, under a denomination before unknown to the legal, though not to the constitutional history of the country. The protectorship is committed (a) (subject to certain exceptions and provisions applicable to particular cases) to the owner (or to the person who, but for an absolute alienation, whether voluntary or involuntary, would have been the owner,) of the prior beneficial estate, or of the first of several prior beneficial estates, created by the same settlement which creates the intail, being an estate for years determinable on a life or lives, or any greater estate other (a) S. 22. CHAP. V. than an estate for years,-admitting, therefore, an estate for years determinable (i. e. by death), however short, but excluding an estate for a term of years absolute, however long. Where there is a plurality of owners of the estate conferring the office of protector, each owner is constituted sole protector in respect of his disposable share. (a) Assurance of tenant in tail in the issue. Under this act, the assurance of a tenant in tail in reremainder bars mainder, with limitations over, will produce, without the concurrence of any previous taker, an effect analogous to that of a fine with proclamations (exclusive of the operation of a fine, when levied by tenant in tail in possession, as a discontinuance, (b) and, when so levied with proclamations, as a bar by nonclaim, (c)) or, in other words, such an assurance will confer a lawful title to a fee, commensurate in point of duration with the continuance of issue in tail, (d) and having the alienable, devisable, and descendible qualities of a pure fee-simple; but in order to render his assurance of equal efficacy with a recovery, or, in other words, in order to bar as well his estate tail, as the estates and interests limited after or in defeazance of his estate tail, he must obtain the consent of the protector. (e) Such consent may be given either by the same deed, or by a distinct, but antecedent or contemporaneous deed, (ƒ) to be inrolled in the Court of Chancery on or prior to the inrolment of the principal assurance; (g) and the consent once given is irrevocable. (h) -but not remainders over without the consent of the protector. Consent of pro tector, how to be given. Tenant in tail may bar re A recovery could not have been suffered in vacation; but the chance afforded by that circumstance to the re- CHAP. V. mainder-man is disregarded by the act, which tacitly mainders in permits the assurance requisite for barring estates and vacation. interests limited to take effect after or in defeasance of the estate tail, to be made and perfected at any period of the year. contrasted with In the majority of cases, the privilege of consenting Protectorship will belong to the person who would have been com- the old tenancy petent to make a tenant to the præcipe; but competency to the præcipe. to make such a tenant affords no criterion (except in certain special cases to be presently considered) for ascertaining the protector of the settlement, who, instead of being a mere technical creature, is, under the reformed code, a reasonable, though not an accountable (a) agent. By the old law, a tenant in tail in remainder expectant upon an estate less than freehold was competent in himself to make a valid tenant to the præcipe, and consequently the owner of such an inferior estate was not invested with any controlling power. In that respect the protectorship established by the legislature does not conform to the old law. Thus, if lands were settled upon A. (beneficially) for a term of ninety-nine years, if he should so long live, with remainder to B. for the life of A., upon trust to preserve contingent remainders, with remainder to the first and other sons of A. successively in tail, the concurrence of B., living A., would have been requisite to enable the first son of A. to suffer a valid recovery, while the concurrence of A. would have been wholly unnecessary for that purpose; but, under the same circumstances, the new law requires the consent of A., dispensing with the concurrence of B. And it is material to observe, that if no estate of freehold should be standing before the estate tail of the first (a) Ss. 36 and 37. CHAP. V. Exclusion of alienees, &c. from the protectorship. Provision for the case of more than one prior estate, and of the exclusion of the first taker. son of A., still the consent of A. will be requisite, although under the old law the first son alone would then have been able by his unassisted act to defeat the settlement. So, the taker of a prior estate, being protector, is continued in office notwithstanding the total and absolute alienation of his estate, (a) either by his own act or by operation of law, so that if the limitation be to A. for life, remainder to B. for life, remainder over in tail, A. will be protector for life, although he should voluntarily alien his life estate absolutely, or become bankrupt or insolvent, or commit a forfeiture; and the act excludes from the protectorship (b) as well alienees as representatives real and personal, along with bare trustees, dowresses, and lessees under leases at a rent. But an estate by the curtesy in respect of an estate tail, or of any prior estate created by the settlement, as well as a resulting use or trust to or for the settlor, is to be deemed a prior estate under the settlement, within the contemplation of the clause appointing a protector. With respect to the case of a resulting use, it was certainly proper to provide for it, (c) though the writer has elsewhere endeavoured to show the difficulty of maintaining, consistently with principle, that the use can ever result for a particular estate. (d) In cases where more than one estate precedes the estate tail, and the person who would be protector but for the provisions (e) excluding lessees at a rent, dowresses, bare trustees, heirs, executors, administrators and assigns, shall stand thereby excluded, the protectorship devolves upon the person, who, if the estate ordinarily (a) S. 22. (b) Ss. 22, 26, 27, 28. (c) Pybus v. Mitford, 1 Ventr. 372. conferring the privilege did not exist, would be pro- CHAP. V. tector.(a) Thus, if lands are limited to A. for life, with power to lease for lives or for years determinable on lives, with remainder in tail, with remainder over;-A. leases under the power to B. for life or for ninety-nine years determinable on life, when, according to the principles on which appointments under powers operate, the estate of B. inserts itself in the settlement prior to the estate of A.;-here, the clause in question denies the protectorship to B. and preserves it in A. Care must be taken not to confound cases in which the prior estate conferring the protectorship has merely passed from the original owner to an assignee, (of which an example is given in the preceding paragraph,) with cases falling under this provision; for though the assignee would be excluded by one of the enactments to which this provision refers, yet the original owner would continue to be protector. But if lands are limited to A. for the life of B., remainder to C. for life, remainder in tail, remainder over, and A. dies, or aliens and dies, living B., then, as the representative or alienee of A. would be excluded, the office would be cast upon C. a married woman. Where the estate conferring the protectorship is limited for the case of to a married woman, the husband and wife are jointly protectors as one owner, unless the estate be settled to the separate use of the wife, in which case the wife is sole protector. (b) Cases may occur in which either the office of protector is vacant, though a prior estate adequate to constitute a protector is subsisting, or the protector is rendered incompetent to exercise his functions. Such cases are provided for by a special clause, (c) which vests the office, (c) S. 33; and see s. 48. (a) S. 28. (b) S. 24. - for cases of incapacity. |