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.
What is a "settlement" and a "settled estate" within the Act.
(/) Be Venour's S. E., (1876) 2 Ch. D. 522, 525 ; 45 L. J. Ch. 409.
(m) Re Eurle's S. E., (1864) 2 H. & M. 196.
(n) Re Chambers' S. E., (1860) 28 Beav. 653; 29 L. J. Ch. 924; Re Hurleys S. E., sup.
(o) Re Chambers' S. E., sup. As to the power of the Court to authorise leases of settled estates, see ss. 4 -15 ; and ef. S. L. Act, 1882, ss. 6 -15.
(p) Cf. S. L. Act, 1882, s. 25, sub-s. 17.
(q) Where the original settlement is complete, it is for the purposes of the Act, the settlement, independently of any derivative settlements which may have been made of interests not yet in possession, by persons who take under it: Re Knowles' S. E., (1884) 27 Ch. D. 707. a case under the S. L. Act, 1882. The beneficiaries under subsidiary settlements are not necessary parties to a petition under the S. E. Act, 1877 : Re Hodge, (1895) W. N. 69.
(r) E.g., copyholds : Re Adair's 8. E., (1873) 16 Eq. 124 ; 42 L. J. Ch. 841; an equity of redemption; Eyre v. Saunders, (1859) 5 Jur. N. S. 704; 28 L. J. Ch. 439; hut not chattels, so that the Court had no jurisdiction to order a sale of heirlooms under the Act; D' Eyncourt v. Gregory, (1876) 3 Ch. D. 635; 45 L. J. Ch. 741. But see S. L. Act, 1882, s. 37 ; Re Brown's Will, (1884) 27 Ch. D. 179; 53 L. J. Ch. 921; Re Rivett-Carnae, (1885) 30 Ch. D. 136; 54 L. J. Ch. 1074; Constable v. C, (1886) 32 Ch. D. 233 ; 55 L. J.
Ch. 491. As to application of proceeds, see Re Houghton, (1885) 30 Ch. D. 102; 55 L. J. Ch. 37; Re Duke of Marlborough, (1886) 32 Ch. D. 1 ; 55 L. J. Ch. 339.
(s) Cf. S. L. Act, 1882, s. 2.
(t) Re Sparrow's S. E., 1892, 1 Ch. 412 ; 61 L. J. Ch. 260; Liddell v. Liddell, (1883) 52 L. J. Ch. 207. This s. is still of value in the cases where the S. L. Act, 1882, s. 59, does not apply.
(u) Re Goodwin's S. E., (1862) 3 Gif. 620.
An order for the sale of a settled estate may, by s. 23, be obtained upon the application by petition of any person entitled (b) to the possession or to the receipt of the rents and profits for a term of years determinable on his death, or for an estate for life which has been held to include an estate during widowhood (c), or any greater estate, or of any assignee of such person (d). But, by s. 24, where there is a tenant in tail under the settlement in existence and of full age, such tenant in tail, or, if more than one, then the first of such tenants in tail, and all persons in existence having any beneficial estate or interest under the settlement prior to such tenant in tail, and all trustees having any estate or interest on behalf of any unborn child prior to the estate of such tenant in tail, must, subject to the qualification mentioned below, either concur in, or consent to, the application ; and, in every other case, there must, as a general rule, be either the concurrence or consent of all persons in existence having any beneficial estate or interest under the settlement, and of all trustees having any estate or interest on behalf of any unborn child. It has been held under these sections, that although trustees, without any power of sale, can only consent on behalf of unborn children, yet if they have such a power, and concur in the application, their beneficiaries will be bound (e); so, also, if they are competent to receive and give a valid discharge for the purchase-money (/). But according to the later decisions all the beneficiaries who are in esse must concur in the application (g). And the rule has been held to extend even to persons claiming under the trusts of a term for raising portions (h) ; and should any of them, except perhaps from mere caprice, refuse to do so, no order would formerly be made (i) ; but the Court now has power to dispense with their concurrence in the cases to be hereafter considered.
Order for sale, how obtained, and by whom.
(y) Re Burdin, (1859) 5 Jur. N. S. 1378; 28 L. J. Ch. 840; but see Re Clark, (1866) 1 Ch. 292 ; and see and consider Re Shepheard's S. E., (1869) 8 Eq. 571 ; 39 L. J. Ch. 173, in which case the fact of the estate not being limited by way of succession appears to have been overlooked.
(z) See Re Greene, (1864) 10 Jur. N. S. 1098; Re Laing, (1866) 1 Eq. 416; 35 L. J. Ch. 282; Collctt v. C, (1866) 2 Eq. 203; and see Re Chamberlain, (1875) 23 W. R. 852 ; Re Morgan's S. E., (1880) 49 L. J. Ch. 577; ef. S. L. Act, 1882, s. 30; S. L. Act, 1884, s. 7.
(a) Re Peake's S. E., 1893, 3 Ch. 430; 63 L. J. Ch. 109.
(b) A person entitled to only a share may apply, without joining as co-petitioners all the reel of the persons entitled : Re Dryden's S. E., (1881) 50 L. J. Ch. 752. Where no person is beneficially entitled to the rents, the trustees may present a petition : Vine v. Raleigh, (1883) 24 Ch. D. 238.
(c) Williams v. W., (1861) 9 W. R. 888 ; where, however, the parties entitled in remainder joined.
(d) The Court will not decide questions of title on a petition under the Act; but where the petitioners are alone entitled, and the only question is as to their title inter se, the Court may order a sale: Re Williams' S. E., (1872) 20 W. R. 967. Cf. S. L. Act, 1882, s. 50, which does not allow the powers of a tenant for life under the Act to be exercised by his assignee ; and an assignee must therefore resort to this Act; see inf. p. 1133.
The difficulty of obtaining the consent or concurrence of parties interested was often a serious, and sometimes an insuperable, obstacle in the way of proceeding under the original Act. This was partly removed by an amending Act, the Leases, etc. of Settled Estates, 1874, and still further by the Act of 1877.
Difficulty of obtaining consent provided for.
Thus, by s. 25 of the latter Act, where an infant is tenant in tail under the settlement, the Court may now dispense with the concurrence or consent of any persons entitled, whether beneficially or otherwise, to any estate or interest subsequent to the estate tail of such infant (k).