Page:Encyclopædia Britannica, Ninth Edition, v. 21.djvu/721

Rh SETTLEMENT 695 shifting use (sec TRTTST), every person succeeding to the settled estate as tenant in tail is forced to assume the name and arms of the settlor under penalty of forfeiture of his estate. Certain parts of the personalty of the settlor are often settled upon trusts to devolve with the real estate. In order to attain this end, the chattels are not simply subjected to the same limitations as the real estate. If so subjected, they would vest absolutely in the first tenant in succession, as no estate can be limited in personalty (see PERSONAL ESTATE). A declaration is added that they shall not vest absolutely in any tenant until he shall attain twenty-one, and in case he should die under that age that they shall devolve as nearly as possible in the same way as the lands. By means of strict settlement the actual possessor of a settled estate at any given time is in general only a tenant for life. It is a rule of law that in a settlement of this nature there should be a full and com- plete communication of all material circumstances by the one party to the other. It is only within a compai'atively recent period that any dis- satisfaction at the system of settlement has been felt. In 1829 the Real Property Commissioners saw no reason to recommend any alteration of the law as it then existed. To use the words of the First Report, p. 6, " Settlements bestow upon the present possessor of an estate the benefits of ownership, and secure the property to his posterity. The existing rule respecting perpetuities has happily hit the medium between the strict entails which prevail in the northern part of the island, and by which the property entailed is for ever abstracted from commerce, 1 and the total pro- hibition of substitutions 2 and the excessive restriction of the power of devising 3 established in some countries on the Continent of Europe. In England families are preserved, and purchasers always find a supply of land in the market. " This optimistic view, it is scarcely necessary to say, is not the one generally accepted at present. The inconveniences inseparable in an economical point of view from the settlement of land have been proposed to be met in two ways, (1) by a total prohibition of the creation of life estates (see LAND), and (2) by an extension of the powers of the limited owner. The latter is the one which has hitherto com- mended itself to the legislature of the United Kingdom. Up to thirty years ago a settled estate in England or Ireland could be sold or leased only under the authority of a private Act of Parliament. The dealings of the limited owner with his property were practically confined to certain powers of raising money for draining conferred by 8 and 9 Viet. c. 56 and the Public and Private Drainage Acts (now repealed). The first general Act was the Leases and Sale of Settled Estates Act, 1856, which proceeded on the principles generally followed in the private Acts. The Act allowed the tenant for life to demise the premises (except the principal mansion house) for various terms, and to sell with the approval of the court. Several amending Acts were passed, and finally the law was consolidated and amended by the Settled Estates Act, 1877 (40 and 41 Viet. c. 18). Meanwhile the Improve- ment of Land Act, 1864 (which applies to the United Kingdom), and the Limited Owners' Residence Acts, 1870 and 1871, had been passed. The Act of 1864 allowed the owner of a settled estate to charge upon the land, by way of rent-charge, the expenses of certain improvements, such as drainage, irrigation, inclosing, reclamation, clearing, erection of labourers' cottages and farmhouse buildings, planting for shelter, construction of any buildings which will increase the value of the land for agricultural purposes, and con- struction of jetties or landing-places on the sea-coast or navigable rivers and lakes. This list of improvements has been since extended by the Settled Land Act, 1882. The Act of 1870 enabled the owners of settled estates to charge such estates with the expense of building mansions as residences. The building of such man- sions is by the Act of 1871 an improvement within the meaning of the Act of 1864. The Settled Estates Act, 1877 (40 and 41 Viet. c. 18), allowed the tenant for life, or for a greater estate, of a settled estate, to demise settled land on an agricultural lease for a term not exceeding twenty-one years (in Ireland thirty-five years). The lease^must not be without impeachment of waste. This is the only case iii which the powers of the Act may be exercised without the leave of the court. The court may authorize leases of any settled estates or of any rights or privileges over or affecting any settled estates, subject to the conditions that (1) the lease be made to take effect in possession at or within one year next after the making, and be for a term for an agricultural lease as above, for a mining lease not exceeding forty years, a repairing lease sixty years, a building lease ninety-nine years, with power for the court to grant 1 The law of Scotland was shortly afterwards altered by the Rutherford Act of 1848 (see EHTAIL). = As by the Code Napoleon, 896. By 898 substitutions vuJgairet are, how- ever, practically allowed, the Inconsistency with 896 being avoided by affirming that these are not substitutions at all. In other countries the right of settlement or substitution has been much modified by legislation, mostly in the direction of limiting the authority of the settlor. Thus in Austria no family settlement (Fannlien-Fideicommiss) can be created without the consent of the legislature, Civil Code, 618. 3 In France the proprietor may only devise half, a third, or a quarter of his estate, according to the number of his children. for a longer term if in accordance with the custom of the district and beneficial to the inheritance ; (2) the best rent must be reserved ; (3) in a mineral lease three-fourths of the rent is to be invested (one-fourth where the limited owner is entitled to work the minerals for his own benefit) ; (4) the lease is not to authorize felling of trees except for the purpose of clearing for building ; (5) the lease is to be by deed, and is to contain a condition for re- entry on non-payment of rent for twenty-eight days. The court may also authorize sales of settled estates and of timber, and dedication for streets, roads, squares, gardens, sewers, and other works. The application to the court (which in England is the Chancery Division or the Chancery of Lancashire, in Ireland the Chancery Division) is by petition in a summary way with the consent of the persons having any beneficial estate under the settlement, and all trustees having any estate on behalf of any unborn child. The court may dispense with consent under certain circumstances. No application is to be granted by the court where a similar application has been refused by parliament. Money received on sale under the Act is to be invested as the Act directs, for the benefit of the settled estate. In 1882 the powers of the limited owner were still further increased. In that year was passed the Settled Land Act, 1882 (45 and 46 Viet. c. 38), since amended by 47 and 48 Viet. c. 19. For this very valuable Act the statute book is indebted to the late Earl Cairns. It does not repeal the Act of 1877, but gives cumulative powers. The Act of 1877 must still be brought into action in certain cases to which the Act of 1882 does not apply. The broad distinction between the two Acts is that the powers given by the Act of 1877 are based entirely, except in agricultural leases, on judicial proceedings, while those given by the Act of 1882 may be exercised by the tenant for life at his option, generally without the consent of trustees or the court. The powers are those usually inserted in settlements of real estate, and are conferred upon every tenant for life beneficially entitled to possession. This includes a tenant in tail by Act of Parliament restrained from defeating an estate tail, but not a tenant in tail where the land in respect of which he is restrained was purchased with money provided by parliament, 4 a tenant in fee simple subject to an executory limitation, a person entitled to a base fee, a tenant for years determinable on a life, a tenant pur autre vie, a tenant in tail after possibility of issue extinct, a tenant by the curtesy, &c. A married woman may exercise the powers given by the Act in spite of any restraint on anticipation contained in the settlement. The Act does not apply to corporations, whether sole or aggregate. The chief powers given by the Act are those of sell- ing and leasing. A tenant for life may sell settled land or any part of it, or any easement, right, or privilege over it, or the seignory of a manor, and may make exchange or partition. A sale must be for the best price, and an exchange or partition for the best con- sideration ; the sale may be in one lot or several, and by auction or private contract. A reservation as to user or as to mines and minerals may be imposed. Settled land in England may not be exchanged for land out of England. A lease is not to exceed for building ninety-nine years, mining sixty, any other kind twenty- one. The regulations as to leases are in general correspondence with those of the Act of 1877. The time for which non-payment of rent gives a right of re-entry is thirty instead of twenty-eight days, and there are additional regulations as to building and mining leases. Where the tenant for life is impeachable for waste in respect of mines, three-fourths of the mining rent is to be set aside as capital money, in other cases one-fourth. The tenant for life may surrender and regrant leases. The principal mansion house and the demesnes thereof, and other lands usually occupied therewith, cannot be sold or leased without the consent of the trustees of the settlement or the order of the court. The Act pro- vides for three kinds of sale : (1) by the tenant for life mero motu, the ordinary case ; (2) with consent of trustees or the court, as in the case of the principal mansion and of the application of money paid for a lease or reversion ; (3) by order of the court, as in the case of the variation of a building or mining lease according to the circumstances of the district, of parliamentary opposition for the protection or recovery of settled land, and of the sale or purchase of chattels as heirlooms to devolve with land. 5 Land acquired by purchase, exchange, or partition is to be settled as far as possible on the same trusts as the other settled property. Capital money is to be applied as the Act directs, generally for the benefit of the settled property. The tenant for life may enter into a contract for carrying into effect the purposes of the Act. A contract not to exercise the powers of the Act is void. As to procedure, an ap- plication to the Chancery Division is to be made by petition or summons. Jurisdiction is conferred upon county courts (in Ireland civil bill courts) in respect to land or personal chattels settled or to be settled, not exceeding in capital value 500 or in 4 That is to say, the Act would apply to the estates tail of the marquis of Abergavenny or the earl of Shrewsbury, but not to Blenheim or Strathfieldsaye, purchased with public money for the dukes of Marlborough and Wellington (see KEAL ESTATE). 5 Land In this sense has quite recently been held to include an hereditary dignity, such as a baronetcy.