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.
Bankrupt, when to be a party under the Act of 1914.
(e) See Howel v. George, (1815) 1 Mad. 11; Costigan v. Hastier, (1804) 2 Sch. & L. at pp. 160, 166; and L. P. Act, 1925, s. 42 (3 - 4).
(f) Minton v. Kirwood, (1868) 3 Ch. 614. (g) Clay v. Sharpe, (1802) Sug. 396; Allen v. Martin, (1841) 5 Jur. 539.
(h) See Re. Willett and Argenti, (1889) 60 L. T. 735.
(i) Lord Bolingbroke's case, 1 Sch. & L. 19, n.
(k) S. 22 (2).
Under the Intestates Estates Act, 1890 (l), the real and personal estates of every man who died intestate after the-1st September, 1890 (and before the 1st January, 1926),. leaving a widow but no issue, in cases where the value of such estates did not exceed 5001., devolved on the widow absolutely (m); and if the net value exceeded 5001., she had a charge for that sum on the whole estate with interest from the date of the death of the intestate at 4 per cent. (n), and such charge was borne in proportion to the values of the real and personal estate respectively (o). The Act did not prejudice any rights the widow would otherwise have had in the estates remaining after payment of the sum (p). The Act had no application in case of a partial intestacy (q).
Widow's rights under intestates Estates Act, 1890.
Where a person dies intestate on or after the 1st January, 1926, the rights of a wife in the estate of which her husband may have died intestate, and the rights of a husband in the estate of which his wife may have died intestate, are entirely different from what they were previously. By s. 33 of the A. E. Act, 1925, the real and personal estate of which any person may die intestate are to be held upon trust for sale and conversion, and the net residuary estate is to be held upon the trusts set out in s. 46. a. E. Act, 1925.
Under the M. W. P. Act, 1882, the husband's concurrence is unnecessary in all cases where a married woman who is dealing with her property, has either been married since 1882 (r), or though married prior thereto, has subsequently to that date acquired the property with which she is dealing (s). The L. P. Act, 1925, which does away with the requirement of acknowledgment in a conveyance by a married woman to whom the Act of 1882 does not apply, retains the necessity for the husband's concurrence (t).
(l) Repealed by the A. E. Act, 1925.
(m) S. 1. (n) S. 2. (o) S. 3.
(p) S. 4. Including dower; see Re Charriere, 1896, 1 Ch. 912: 65. L. J. Ch. 460.
(q) Re Twigg, 1992, 1 Ch. 579; 61 L. J. Ch. 444. (r) S. 2.
It was decided in Harkness and Allsopp (u) that a married woman could not, without her husband's concurrence and an acknowledged deed, convey the legal estate in real estate of which she was, either, jointly with others or solely, seised in trust. But by s. 170 of the L. P. Act, 1925 (which takes the place of s. 1 of the M. W. P. Act, 1907), a married woman is able to acquire, as well from her husband as from any other person, and hold, 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 no interest in such property is to vest or be deemed to have vested in the husband by reason only of the acquisition by his wife (sub-s. (1)). And by sub-s. (2) a married woman is able, without her husband, to dispose of, or to join in disposing 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 after the 31st December, 1882, and to a woman married before the 1st January, 1883, who became a trustee or personal representative on or after that date (sub-s. (3)); and it operates 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, such title or right is to prevail over any title or right which would otherwise be rendered valid by this section or any enactment it replaces (sub-s. (4)).
Construction of the M. W. P. Act, as to married women trustees.
It was formerly a common practice to insert in the description of the, parties a short statement of the capacities in which they concurred in the deed, and this may still be desirable in cases where the same person concurs in different capacities, and the nature of his several interests is not sufficiently disclosed in other parts of the deed (x). Where a deed is to be executed under a power of attorney, as a general rule the principal, and not the attorney, is named as a party.
Description of parties.
(s) S. 5, inf. p. 516. (t) S. 167 (1).
(u) 1896, 2 Ch. 358; 65 L. J. Ch. 726.
But in the absence of a statutory or other direction to the contrary, the donee of the power may execute the instrument in his own name (y). Where he does this, it should be expressed that the attorney executes the instrument on behalf of his principal. By s. 7 (4) of the L. P. Act, 1925, it is provided that where any 6uch power as therein referred to for disposing of the legal estate is exercisable by a person who is not the estate owner, the power is whan practicable to be exercised in the name and on behalf of the estate owner (z).
For the purposes of s. 29 of the S. L. Act, 1925, all land vested in trustees for charitable, ecclesiastical, or public purposes, is to be deemed settled land, and the trustees are to have the powers conferred by the Act on a tenant for life and on the trustees of a settlement (zz). And by sub-s. (5) where any trustees or the majority of them have power (a) to transfer or create any legal estate that estate is to be transferred or created in the names and on behalf the persons (including the official trustee of charity lands) in whom the legal estate is vested.