Imágenes de páginas
PDF
EPUB

nistrators, with the consent in writing of the tenant for life or adult tenant in tail for the time being entitled in possession under the limitations hereinbefore contained, exclusive of the power hereinbefore limited of appointing to husbands, to sell the said hereditaments or any part thereof, together or in parcels, by public sale or private contract, for the best price in money, or to exchange the said hereditaments or any part thereof for other hereditaments or tenements of the description hereinafter authorised to be purchased, or to enfranchise for the best price in money, any copyhold tenement or tenements within the said manor of or to make partition of any hereditaments whereof an undivided part or parts is or are hereby settled, with liberty to give or accept any money for equality of exchange or partition, and thereupon by deed, executed by the said [same trustees], or the survivor of them, his executors or administrators, in the presence of and attested by one or more than one witness, to make such revocation of the then subsisting uses of this settlement, and such appointment of new uses, as shall be proper for giving effect to the sale, exchange, enfranchisement or partition, but so as not to disturb any lease made in exercise of the power of leasing hereinbefore contained (56); And it is declared that the said

3

a power of sale

Sale by trustees of subject to a lease, not warranted by

a power of leas

(56) Where the trustees of a power of sale sell the settled estate subject to a lease granted under a power of leasing, it is material to ascertain that the lease is conformable to the power of leasing. In a case which occurred in practice, the purchaser's counsel objected that a contract by the trustees ing. of a power of sale in a settlement to sell the estate, subject, as to part of the land, to a lease granted by the tenant for life, of which lease the validity, as an execution of the power of leasing, was at least doubtful, could not be supported," inasmuch as they (the trustees) would sell another interest "than that which they were authorised to sell, for they would sell the "estate as a reversion in fee expectant on the lease, instead of selling the "fee simple in possession, treating the lease as a nullity." The point was submitted to a conveyancer of great eminence, who gave the following opinion: Under the circumstances the trustees cannot, in my opinion, "make a marketable title. They have no right to sell the reversion, as subject to a lease, on the supposition that the lease is not valid, and by

[ocr errors]

"

Money to arise

[the same trustees] or the survivor of them, his executors or be laid out in the administrators, shall apply the money to be received from any

from sales, &c. to

purchase of estates

like uses.

to be settled to the such sale, exchange, enfranchisement or partition as aforesaid, in discharging the incumbrances (if any) which shall then affect the settled hereditaments, and shall lay out the money so received, and not so applied, in the purchase of the feesimple in possession of freehold hereditaments situate inEngland or Wales, or in the purchase of copyhold or eústomary or leasehold tenements, convenient to be held with the freehold hereditaments comprised in, or to be acquired under this settlement; such leasehold tenements to be held under a renewable lease or leases for life or for years, or for an absolute unexpired term of at least 100 years; And shall limit or cause to be limited, as well the hereditaments and tenements so to be purchased, as the hereditaments and tenements to be acquired by means of any such exchange or partition as aforesaid, to the then subsisting uses of this settlement, or as near thereto as may be; But the chattels real to be so settled shall not vest absolutely in any tenant in tail of the freehold hereditaments who shall die under the age of twenty-one years without leaving issue male living at his or her decease; And further the fines and expenses incident to the renewal of the leases of any renewable leaseholds purchased or acquired as aforesaid, shall be defrayed out of the rents and profits thereof: And it is declared that the said [same trustees], or the survivor of them, his executors or administrators, shall,

Chattels real not to vest absolutely in tenant in tal dying under age without leaving issue male.

Money to be laid

out in the funds,

&c. till invested in

land.

[ocr errors]

"that means sacrifice the interest of the persons on whose behalf they are "to exercise the power of sale. By the res geste it will appear that the "mill, &c. were sold as a reversion expectant on the lease, that is, for a price computed at the full value, after the lease, and by a value computed "from the amount of the rent during the currency of the lease. Now this "ought not to be done in those cases in which the lease is not binding on "the persons in remainder and reversion. The difficulty is that the price, as fixed, is inadequate on the supposition that the lease is invalid. No "apportionment of the price can relieve the case from its difficulty." The title was rejected.

66

made without

No purchase to be consent, if tenant

for life or in tail

of age.

Receipts of frus

tees to be dis

charges.

until the same money shall be so laid out as aforesaid, invest the same in or upon the public stocks or funds of the United Kingdom, or upon real securities in England or Wales, in their or his names or name, and be at liberty to vary the investment from time to time for any other of the like nature; And it is declared that the annual income of such investment shall follow the destination of the rents of the hereditaments directed to be purchased therewith: But no such purchase or investment as aforesaid shall be made while any tenant for life or adult tenant in tail shall be entitled in possession under the limitations herein contained, exclusive as aforesaid, without his or her previous consent in writing.PROVIDED ALSO, that the receipts in writing of the respective trustees for the time being acting in the execution of the respective trusts hereinbefore created, shall be discharges for all moneys to be received by them respectively pursuant to such trusts, and shall exonerate the person or persons paying the same from all liability in respect of the application thereof. PROVIDED Provision for the ALSO, that it shall be lawful for the said [relessor] and [intended wife] and the survivor of them, and after the decease of such survivor, for the trustees or trustee for the time being of the respective trusts aforesaid, and for the executors or administrators of any surviving trustee of such respective trusts, from time to time, as often as there may be occasion, by deed executed in the presence of and attested by one or more than one witness, to appoint any person or persons to supply the place of any present or future trustee or trustees of the said trusts respectively who may die or become unwilling or unable to act in the execution of such trusts respectively, before the same shall be fully performed, each class of trustees appointing to vacancies in its own body: And it is declared that upon every such appointment the respective trust estates and funds shall be conveyed, assigned and transferred, so as to vest the same jointly in any new and old trustees, or solely in the new trustees, as occasion shall re

appointment of trustees.

Indemnity of

trustees.

Covenants by intended husband,

to convey,

quire, and every new trustee shall succeed to the powers and duties of the trustee in whose place he shall be appointed. PROVIDED ALSO, that the trustees hereby appointed and to be appointed as aforesaid, respectively, and their respective executors or administrators, shall not be answerable for the acts or receipts of each other, or for any loss or damage which may happen in the execution of the aforesaid trusts respectively without their own respective default, and shall be at liberty to deduct and retain, out of the trust moneys which shall come to their hands, all costs and expenses which they may incur or sustain in the execution of the trusts reposed in them respectively. And the said [relessor] for himself, his heirs, executors and administrators, hereby covenants with the said [relessees to uses] and their heirs, that notwithstanding any act, matter or thing done or permitted by the ---that he has right said [relessor] or any of his ancestors to the contrary, the said [relessor] is well entitled by these presents to assure and limit the said hereditaments hereby released or otherwise assured or intended so to be, to the uses and in manner aforesaid; —for quiet enjoy. And that the said hereditaments shall, from and after they solemnization of the said intended marriage be held and enjoyed, and the rents and profits thereof received accordingly, without any eviction, interruption or denial from or by the said [relessor], or any person or persons rightfully claiming or to claim under or in trust for him or any of his ancestors; Free from, or by the said [relessor], his heirs, executors or administrators, kept indemnified against, all former or other estates, rights, titles, charges and incumbrances created or occasioned by the said [relessor] or any of his ancestors, or any person or persons claiming under or in trust for him or them or any of them. AND ALSO, that the said [relessor] and every person rightfully claiming under or in trust for him or any of his ancestors will, on every request and at the costs of any person or persons interested under the limitations aforesaid, do or execute every such act, deed or assurance, for

ment,

-for freedom from incumbrances,

-for further assurance.

Jor

more effectually assuring the said hereditaments, or any part thereof, to the then subsisting uses and according to the true intent of these presents, as by the person or persons respectively making such request, or his, her or their counsel in the law shall be reasonably advised and required, and as shall be tendered to be done or executed. IN WITNESS, &c.

2. Where the Seisin and the Use are created by distinct Instruments. (57)

Appointment.

No. 15.

APPOINTMENT, by the joint Donees of a Power contemplating
Specific Objects, to a Child in Fee.

TO ALL PERSONS TO WHOM THESE PRESENTS SHALL COME,
[husband], of, &c. and [christian name], his wife, send greeting.
WHEREAS by indentures of lease and release, bearing date RECITALS,

ment, with refer

ence to the assurance creating the seisin.

(57) This distribution of assurances which raise uses by transmu- Condition of uses tation of possession is not founded upon any substantial difference in their limited by appointnature. Though the student would probably feel some difficulty at first in admitting an appointment to be an assurance under which a use arises by transmutation of possession, yet, when it is considered that the power itself is really an executory use, deriving its legal existence from the original conveyance to uses, and that the appointment merely ascertains the object or direction of such use, it will he apparent, not only that the appointment owes its efficacy to the seisin raised by transmutation of possession, but that in legal contemplation, the appointee is in of a use limited by the very assurance which created the seisin. It is, indeed, a settled principle that the use created by the execution of a power is to be considered, in point of construction and effect, (but not in point of time, or, in other words, only from the period of the execution of the power,) as contained in the instrument creating the power, or, more correctly speaking, in the assurance creating the seisin to serve the uses to be raised under the power-for that

« AnteriorContinuar »