By s. 16 of the " Settled Estates Act, 1877 " {a), the Chancery Division of the High Court (b) is empowered, so far as relates to estates in England, "if it shall deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in the Act contained, from time to time to authorise a sale of the whole or any parts of any settled estates, or of any timber (not being ornamental timber) growing thereon (c) ; and every such sale shall be conducted and confirmed in the same manner as by the rules and practice of the Court for the time being, is, or shall be required in the sale of lands sold under a decree of the Court " (d). Where the land is sold for building purposes, a fee-farm rent may, under s. 18, be reserved as the consideration (e) ; and, under s. 19, minerals may be excepted and the right of working them reserved, the purchaser of the land being liable to enter into any covenant, or to submit to any restrictions which the Court may deem advisable (f). A sale of minerals apart from the surface may be made under these sections (g) ; and in such a case a rent-charge may, it seems, be reserved in respect of the surface from time to time damaged by the workings (h).

Section 1

Court may-authorise sale of settled estates; may reserve minerals;

(a) By which the earlier Acts, 19 & 20 Vict. c. 120; 21 & 22 Vict, c. 77 ; 27 & 28 Vict. c. 45 ; Leases, etc. of S. E. Amendment Act, 1874; S. E. Act, 1876, have been repealed (see s. 58), except where their provisions have been incorporated with a private Act; see Re Bolton Est. Act, (1878) W. N. 65.

(b) S. 3.

(c) Where an order has been made under this Act authorising a sale by the trustees, the order must be suspended before the tenant for life can exercise the powers given by the S. L. Acts: Me Barrs-Eaden's S. E., (1883) 32 W. R. 194 ; 49 L. T. 661; and for this purpose a petition must be presented under the S. E. Act: Re Poole'sS. &, (1883) 32 W. R. 956.

The Court may, by s. 20 (i), on any sale under the Act, direct that any part of the settled estates shall be laid out for streets, roads, paths, squares, gardens, sewers, etc, either to be dedicated to the public or not; and may direct that the parts so laid out shall remain vested in the trustees of the settlement, or be conveyed to other trustees for seeming the continued appropriation thereof (k) ; but it has no power to direct roads or sewers to be made, and can only sanction a building plan providing for their construction (/). Unless the roads are beneficial to the property in its existing condition, or there is an intention of immediately using it for building purposes, the Court will not make any order under this section (m) ; nor would it, under the earlier Acts, sanction the sale of part of the estate in order that the proceeds might be applied in laying out roads over other portions, and in thus rendering them available for building purposes (n) ; but it would authorise building leases on the terms of the lessees making the roads (o). But by s. 21 of the Act of 1877 (p) this defect has been supplied ; and the Court may now provide for the expenses of development by a sale or mortgage of, or charge upon, all or any part of the settled estates, or may order them to be raised and paid out of the rents and profits of the settled estates, or any part thereof, or out of any money or investments representing money liable to be laid out in the purchase of hereditaments to be settled in the same manner as the settled estates, or out of any accumulations of rents, profits, or income; and it may further provide for the maintenance of the roads and works out of income.

And authorise dedication for roads.

(d) This is now regulated by R. S. C. 1883, O. LI. r. 3 ; and see inf. p. 1151 et seq. The sale is generally made in Court: Re Dryden's S. E., (1881) 50 L. J. Ch. 752 ; Re Harvey's S. E., (1882) 30 W. R. 897 ; Re Smith's S. E., (1878) W. N. 196, but can now be made out of Court, as to which see inf. p. 1151.

(e) The Court cannot under this s. give the trustees a general power to reserve fee-farm rents, but must itself consider each proposed grant of the kind: Re Elliott's S. E., (1879) W. N. 135. Cf.s. l0 of theS.L. Act, 1882, which empowers the Court in certain cases " to authorise generally the tenant for life to make from time to time grants" at fee-farm rents for building or mining purposes, also S. L. Act, 1890, ss. 8, 9.

(f) Cf. S. L. Act, 1882, s. 17, which is wider in its terms, not being confined to a sale of the surf ace without the minerals, but extending to a sale of the minerals without the surface. This s. further allows not only a sale, but also an exchange, partition, or mining lease.

(g) Re Law, (1861) 7 Jur. N. S. 511 ; S. C. sub nom. Re Mailings S. E., (1861) 3 Gif. 126 ; 30 L. J. Ch. 929 ; Re Grafs S. E., (1875) W. N. 106. Until the Confirmation of Sales Act, 1852 (vide inf. p. 1134 et seq.), this could not be effected under an ordinary power of sale.

(h) Re Milward, (1868) 6 Eq. 248.

(i) The provisions of this s. are confined to the development of a building estate, and do not apply to drainage for agricultural purposes: Re Poynder's S. E., (1881) 50 L. J. Ch. 753. As to the latter, see S. L. Act, 1882, s. 25.

(k) See s. 22 as to how the conveyance is to be executed. Cf. with s. 20, S. L. Act, 1882, s. 16.

For the purposes of the Act, the word " settlement," by s. 2, signifies any Act of Parliament, deed, agreement, copy of court roll, will, or other instrument, or any number of such instruments (q), under which any hereditaments of whatever tenure, or any estates or interests therein, stand limited to, or in trust for, any persons, by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively; and the term "settled estates " is defined as " all hereditaments of any tenure, and all estates or interests in any such hereditaments, which are the subject of a settlement" (r) : and all estates or interests in remainder or reversion not disposed of by the settlement, and reverting to a settlor or descending to the heir of a testator are to be deemed to be estates coming to such settlor or heir under or by virtue of the settlement; and in determining what are " settled estates " within the Act, the Court is to be governed by the state of facts, and by the trusts or limitations of the settlement, at the time of the said settlement taking effect (s). Real estate, to which an infant is contingently entitled, is, by virtue of s. 41 of the Conveyancing Act, 1881, to be deemed a "settled estate" within the meaning of the Act (t). Where an estate was devised to A. for life, with remainder to A.'s children equally at twenty-one, and some of the children had attained twenty-two (two of them having resettled their shares), and the others were still infants, it was held, after the death of A., that this was a settled estate within the meaning of the Act; and, on the parties absolutely entitled joining in the petition, a sale was directed (u) ; and it was also held that a clause of survivorship and accruer contained in the will was a limitation " by way of succession " (x) ; but this was considered doubtful by the Lords Justices in a previous case (y). The fact of the settlement containing a trust for sale, and of the trusts being declared merely of the sale proceeds, does not prevent the estate being considered as "settled " within the meaning of the Act (z). The "earnest wish " of a testator that land should remain in his family for some years, and the expression of his will that the trust for sale affecting that land should not be exercised till a certain time, do not constitute an "express declaration " within s. 38 of the Act to prevent the Court from exercising its powers under it (a).