CHAP. V. where the protector is a lunatic,-in the Lord Chancellor, or the Great Seal, or persons entrusted with the care of lunatics; and where the protector is convicted of treason or felony, or not being the owner of a prior estate, is an infant, or it is not known whether he be living or dead, or where the settlor declares that the person who as owner of a prior estate would be protector shall not be protector, without appointing a protector, or where, from any other cause, notwithstanding the existence of a prior estate sufficient to constitute a protector, there shall be no protector,-in the Court of Chancery.

Power to ap

Another important provision is that which enables (a) point a protector the settlor, not only to appoint any person or persons in

or protectors.

Certain cases in which the protectorship has respect to the old law.

esse (exclusive of aliens), not exceeding three, whether taking an interest under the settlement or not, to the office of protector, but also, by means of a power, to be inserted in the settlement, of nominating to vacancies, to perpetuate the protectorship in any person or persons in esse, not exceeding three, for the whole or any part of the period for which the office would have endured by force of the limitations. The person who, in respect of the prior estate, would ordinarily be the sole protector may be one of the special protectors, and, unless there is a direction to the contrary, will continue protector after the death, or resignation by deed, of the rest, until further appointment. It is presumed that the words in esse, where they first occur, are to be taken with reference to the execution of the settlement; and where they last occur, to the period of nomination.

The protectorship is qualified by a saving of the old law to a certain extent from tenderness to vested rights. 1. Where, on or before the 31st of December, 1833, an estate shall have been disposed of, the person who in

(a) S. 32.

respect of such estate would have been the person to CHAP. V. make a tenant to the præcipe, is during the continuance of the estate to be the protector.(a) It follows that if A., tenant for life, remainder to B. in tail, remainder over, conveyed his life estate to C. on or before the 31st of December, 1833, the office of protector, which, under the general provisions of the act, would remain with A. notwithstanding his alienation, will belong to C. or his assigns, who may be supposed to have calculated on the privilege of making the tenant to the præcipe. 2. So, if any person having, on or before the 31st of December, 1833, disposed of a remainder or reversion in fee, would yet, under the general provisions of the act, be the protector, then the person who would have been the person to make the tenant to the præcipe is, during the continuance of the estate which conferred the right to make the tenant, declared to be the protector. (b) If, therefore, A., tenant for ninety-nine years determinable on his death, (which species of chattel interest would be sufficient to constitute him the protector,) with remainder to B. for life, (who, or whose assigns, as having the first estate of freehold, would have been the person or persons to make the tenant,) with remainder to C. in tail, with remainder or reversion to A. in fee, aliened his (A.'s) remainder or reversion on or before the 31st of December, 1833, then B. and his assigns will, during the subsistence of his life estate, enjoy the office of protector; otherwise A. would, as the act expressly anticipates, have been "enabled to concur in the barring of the remainder or reversion" which he himself had aliened. In each of the preceding cases, partial alienations or dispositions, (as, for a derivative interest, or by way of mortgage,) are within (b) S. 30.

(a) S. 29.

CHAP. V. the scope of the saving. 3. Again, where, under any

settlement made before the passing of the act, the person who would have been the person to make the tenant shall be a bare trustee, such person is, during the continuance of the estate conferring on him the right to make the tenant, to be the protector.(a) It is observable that the twenty-seventh section refers prospectively to the provision in question, as "the case hereinafter provided for, of a bare trustee under a settlement made on or before the 31st of December, 1833;" but it is apprehended that the terms of this referential reference would not be of force to control the subsequent enactment. Consequently, if, before the passing of the act, lands were limited to the use of A. for the life of B., in trust for B., with remainder to C. in tail, with remainder over, the protectorship, which, under the general provisions of the act, would have belonged to the beneficial owner (B), will reside in A. and his assigns. We have seen that the protectorship is a personal privilege, neither transferable to assigns, nor transmissible to representatives; (b) whereas the right of making the tenant was inherent in the seisin of the freeholder for the time being. Now, the clauses in question save entire the principle of the law in regard to common recoveries, annexing the new office to the old freeholder. It is almost superfluous to add, that in none of these instances would the person holding the office be compellable to consent. These provisions have been noticed thus particularly; because they must for many years to come exert considerable practical influence, and because they afford a striking illustration of the observation with which we set out, that a correct understanding of the learning and practice of common recoveries is essential to the (b) S. 27.

(a) S. 31.

sound exposition and safe application of the substituted CHAP. V. system. Nay, in perusing an abstract of title some fifty years hence, (if, notwithstanding another recent law, (a) posterity should be permitted to look back so far into the transactions of their ancestors,) it may be necessary for the conveyancer to come prepared with a knowledge, first, of the law in regard to the making of a tenant to the writ for suffering a common recovery; secondly, of the partial system of protection based upon that learning, -its extent and duration; and, thirdly, (whether lastly or not must depend upon the course of legislation,) of the system of protection under the new code.

In comparing the new system with the old, it should not be forgotten that in order to make a tenant to the præcipe, the freeholder was obliged to depart with the immediate freehold to a stranger-a step often attended with inconvenience in practice. But, when protector, he need only consent, and there is consequently no disturbance of his particular estate. Thus, if the limitations be to A. for life, remainder to the first son of A. in tail, remainder over, and it be wished to acquire the fee simple in remainder immediately expectant on the limitation for life, without affecting that limitation, the first son, with the consent of A., will convey to a third person to the use of the first son in fee, or to any other uses which may be agreed upon, leaving the life estate wholly untouched. On the other hand, if it be wished to put an end to the existing settlement in toto, then, of course, A. will not merely consent, but will concur with his son in the conveyance.

(a) Vide infrà, stat. 3 & 4 Will. 4, c. 27.

The protector

not required to

convey.

CHAP. V.

entail must be created by the same instru

ment.

Before we dismiss the subject of the protectorship, Prior estate and one circumstance, which has attracted the observation of the writer already quoted, deserves to be marked, which will be best done in his own words. "Another important accession," he observes, "to the jus disponendi of a tenant in tail is, that he is not required to obtain the concurrence of the owner of a prior estate of freehold, or of years determinable with life, where such prior estate and the estate tail are created by different assurances; for it is to be observed, that the 22d section, which imposes the necessity of obtaining the consent of the protector of the settlement, only applies if, at any time when there shall be a tenant in tail of lands under a settlement, there shall be subsisting in the same lands, or any of them, under the same settlement, any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years) prior to the estate tail;' so that if, after the 31st of December, 1833, lands were devised or conveyed to A. for life, with remainder to B. in fee, and B., by deed or will, limited his remainder to C. in tail, C., the tenant in tail in remainder, might, without the concurrence of A., the prior tenant for life, acquire the remainder in fee simple by a deed inrolled, though before the statute C. could not have suffered a common recovery, unless enabled so to do by the junction of A., the owner of the immediate freehold. It is observable, that there is no such distinction in regard to settlements made on or before the 31st of December, 1833, of which the owner of the immediate freehold (being entitled as trustee) is constituted the protector, whether, as it should seem, such freehold were created by the same instrument as the estate tail or not. [sed quære?] Indeed, as such cases evidently belong to the