This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(1846) 3 C. B. 639; Re Perrin, (1854) 14 C. B. 420. Cf. Ex p. Gilmore,. (1847) 3 C. B. 967; Ex p. Taylor, (1849) 7 C. B. 1.
(t) S. 91; and see Fowke v. Draycott, (1885) 29 Ch. D. 996; 54 L. J. Ch. 577.
A husband is not precluded by his bankruptcy from concurring in a disposition by his wife to which his concurrence is necessary under the Fines and Recoveries Act(u).
The M. W. P. Act, 1882, has enabled every woman married on or after the 1st January, 1883, and, as to property the title to which has accrued to her on or subsequently to that date, every woman married before that date, to convey every estate, whether real or personal, legal or equitable,, in possession or reversion, as fully, and in the same manner, as if she were a feme sole (x).. The provision in s. 5 entitling a woman married before its commencement "to have-and to hold, and to dispose of, as her separate property, all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion or remainder, shall accrue after the commencement of the Act," does not operate retrospectively, so as to change the nature of a married woman's title which has partially accrued before-such commencement - e.g., a remainder, which after such commencement becomes an estate in possession, - but the title to the entire interest, whatever that may be, must accrue after 1882 (y); a mere spes successionis is not, however, a title within the section (z).
2. Under the M. W. P.
It was held in Re Harkness and Ailsop (a) that the M. W. P. Act, 1882, did not enable a married woman to convey as a trustee without a deed acknowledged, except where she was a bare trustee within the meaning of s. 16 of the T. Act, 1893(6). Now, under s. 170 (1) of the L. P. Act, 1925, a married woman is able to acquire as well from her husband as from any other person, any interest in property, real or personal, either solely or jointly with any other person, as a trustee or personal representative, in like manner as if she were a feme sole. And by sub-s. (2) (which reproduces in substance s. 1 (1) of the M. W. P. Act, 1907), a married woman is able, without her husband, to dispose of any interest in real or personal property held by her solely or jointly with any other person as trustee or personal representative, in like manner as if she were a feme sole. The section applies to a woman married on or after the 1st January, 1883, and to a woman married before that date who became a trustee on or after that date(c). By sub-s. (4) (which takes the place of s. 1 (2) of the Act of 1907) the section is to operate to render valid and confirm all such acquisitions and dispositions made after the 31st December, 1882, but where any title or right has been acquired through or with the concurrence of the husband before the 1st January, 1908, that title or right is to prevail over any title or right which would otherwise be rendered valid by the section or any enactment which it replaces.
(u) Re Jakeman's Trusts, (1883) 23 Oh. D. 344; 52 L. J. Ch. 363.
(x) See 88. 1, 2, 5.
(y) Reid v. R., (1886) 31 Ch. D. 402; 55 L. J. Ch. 294; Re Cuno, (1889) 43 Ch. D. 12; Re Bacon, 1907, 1 Ch. 475; and see notes to Wolst. & Cherry, 11th ed. vol. ii. p. 647.
(z) Re Parsons, (1890) 45 Ch. D. 51; 59 L. J. Ch. 666; and see Re-green, 1911, 2 Ch. 275; Re Mudge, 1914, 1 Ch. 115.
(a) 1896, 2 Ch. 358; 65 L. J. Ch. 726.
(b) Now repealed by the T. Act, 1925.
An assignment by an executor who dies before probate is valid provided that the will is eventually proved; as the probate copy is the only evidence of the appointment of the executor (d): but an assignment by a person assuming to act as administrator, and who subsequently obtains letters of administration, is void (e); at all events unless the assignment was for the benefit of the estate (f). It has now been decided, after some conflict of authority (g), that an assignment by a person to whom administration has been granted to a bond fide purchaser will hold good, notwithstanding that administration may afterwards be revoked and probate granted to executors of a will discovered (h). This decision is confirmed by s. 37 of the A. E. Act, 1925 (i).
(c) Sub-s. (3).
(d) Brazier v. Hudson, (1836) 8 Si. 67; but whether this has been altered by the A. E. Act, 1925, qucere.
(e) Woodfall, 22nd ed. pp. 58, 353.
(f) Wms. Exors. 11th ed. p. 317; 2 Wolst. & Cherry, 11th ed. 481 - 2.
(g) See Abram v. Cunningham, (1677) 2 Lev. 182; Boxall v. B., (1884) 27 Ch. D. 220; Ellis v. Ellis, 1905, 1 Ch. 613; Craster v. Thomas, 1909, 2 Ch. 348.
(h) Hewson v. Shelley, 1914, 2 Ch. 13.
(i) See also s. 27; Re Bridgett and Hayes, 1928, Ch. 163.
Under the A. E. Act, 1925, s. 1 (which, in the case of deaths occurring after 1925, takes the place of s. 1 of the L. T. Act, 1897), real estate to which a deceased person was entitled for an interest not ceasing on his death devolves on his personal representative, in like manner as before the Act chattels real devolved on the personal representative of a deceased person. And by s. 2 (repeating, in substance, s. 2 of the L. T. Act, 1897), subject to the provisions of the Act, all enactments and rules of law, and all jurisdiction of any Court with respect to probate or letters of administration, or to dealings before probate in the case of chattels real, and all powers and duties of a personal representative in force at the commencement of the Act with respect to chattels real, are to apply to the personal representative, and have effect with respect to the real estate vested in him. But where there are two or more personal representatives, a conveyance of real estate is not (save as otherwise provided as respects trust estates (k)) to be made without the concurrence of all such representatives or an order of the Court. Where, however, probate is granted to one of several executors, a conveyance by such proving executor is to be effectual (l). By s. 3 "real estate," for the purposes of Part I. of the Act, includes chattels real (m) and land in possession, remainder, or reversion, and every interest in or over land to which a deceased person was entitled at the time of his death, and real estate held on trust or by way of mortgage.