« ForrigeFortsett »
ON THE PROTECTORATE.
After the able way in which the provisions of the 3d and 4th William IV., c. 74, have been handled, the editor feels that he should be guilty of little short of presumption, were he to attempt to add any thing of his own on the subject; nor is it possible, within the compass allowed in a work of this character, to give any thing like a general view of what has been written on the subject ; but he trusts that the illustrative tables, and few explanatory notes which he has prepared, with a view of assisting the practitioner in the application of those provisions of the act which more immediately relate to the office of Protector, will not be found altogether unacceptable.
It is important, in using the following tables, that the reader should bear in mind the definitions of the word “Settlement,” as used in this act of Parliament. It is defined, in the 1st section, to be an
assurance, whether by deed, will, act of Parliament, or otherwise, by which lands are or shall be entailed or agreed, or directed to be entailed ;” and by the same section it is provided, that an appointment under a power shall be considered part of the settlement creating the power, and that the death of the
testator shall be considered the date of a settlement
Person who would have been tenant
ment as the estate tail was originally assigned prior to the precipe. to 1834, if the present owner of it (whether the ori
ginal assignee or not) would have been the person to make a tenant to the precipe, had the act not passed, he shall be the protector, sect. 29.
2d, Where the estate tail was created prior to 1834, out of a remainder or reversion, the person who, if this act had not passed, would be entitled to make a tenant to the precipe, shall be protector, sect. 30.
3d, The person who, in respect of an estate created by a settlement made prior to 28th August 1833, would be the person to make a tenant to the precipe, shall, notwithstanding he may be a bare
trustee, be protector of an estate tail created by it, sect. 31.
Lands were settled, prior to 28th August 1833, Upon A. for life, upon trusts
remainder. To B. for life
remainder. To C. in tail.
A. is the protector, sect. 31.
Under a settlement made prior to January 1, 1834, lands were settled, Upon A. for life
remainder. To B. for life
A testator who died prior to 1834 devised lands to
remainder to D. in tail. A. is protector, sect. 30.
If there should be no protector under the foregoing provisions, then it should be ascertained whether there is any one in existence having the qualifications mentioned in the following table, going through them in the order there named.
TABLE II. The following are the estates to the ownership of Estates conwhich the office of protector is annexed by the sta- ferring the
right to pro
tectorship. An estate for years determinable on a life or lives -an estate pur autre vie—an estate for lifeestate by the courtesy, in respect of the estate tail ;* but the protectorship is not annexed to those estates, unless they were created, or in the case of a ten
* From the cases of Re Blewitt, 3 M. and K. 250, and Re Wood, 3 M. and Cr. 266, it would appear that a tenant in tail in possession is not the protector of an estate tail in
ancy by courtesy) exist in respect of an estate created, by the same settlement as the estate tail.
1st, The persons,° if any, who may have been appointed protectors, either by the settler himself, or by some other person, under a power for that purpose, contained in the settlement, sect. 32. If no such protector should be in existence, then,
2d, A tenant by the courtesy, in respect of the estate tail intended to be barred, or in respect of any prior estate created by the same settlement as that estate tail. This right continues, though the party charges, or even absolutely parts, with his estate.
3d, The person who is (or who, but for the transfer of his estate, would have been) the owner of the first existing estate created by the same settlement as the estate tail.
N. B.-This right to the protectorship is personal, and only extends to the first taker of the estate; and though such estate might not determine at his death, but devolve upon his real or personal representatives, or his widow, as doweress, or upon his devisee, none of these persons will be protectors; and unless there should be a person qualified to be protector, in respect of some subsequent estate, the protectorship would devolve upon the Court of Chancery.
4th, Where there is more than one prior estate, and the owner of the first estate is a bare trustee, assignee, devisee, heir, executor, administrator, doweress, or lessee at a rent, and therefore not qualified to be protector, the person who would be entitled, in case such estate had determined, shall be the protector, sect. 28.
In the case of a married woman being entitled to the protectorate, in respect of an estate not settled, or agreed to be settled, to her separate use, her busband shall be protector jointly with her, sect. 24.
If the estate conferring the right to the protectorate shall be vested in two or more owners, then each of such owners shall be the protector, in respect of his undivided share.
• Not more than three may be appointed.
The Court of Chancery is the protector in the following cases :
Where the protector is a convicted traitor or felon.
When the protector named by the settler, or under a power given by him, is an infant.
Where it is uncertain whether the protector named by the settler, or under such power, is living.
Where the settler has excluded the owners of the prior estates from the protectorate, and not substituted a protector in their place.
And in all other cases where there are prior estates sufficient to qualify the owners thereof to be protector, and yet there shall be no protector.
Where the protector is an idiot or lunatic, whether found so by inquisition or not, the protectorate, by the 33d section, is vested in the Lord Chancellor, Lord Keeper, or other person to whose care they are entrusted ; but in cases P where the interests of the lunatic would be affected by the exercise of the powers of the protector, it has been considered that this clause is not applicable.
An estate is vested in A. for 99 years
remainder. Tenant for remainder. life in re
A. for life
remainder. Protector of a To B. in fee. B. settles his remainder upon C. for remainder.
99 years, if he should so long live
remainder To D. for life
remainder. To C. in fee.-C. is protector.
P Re Blewitt, 3 M. and K. 250; Re Wood, 3 MI. and C. 266.
9 For the principles on which the Court acts in the character of protector, see Re Blewitt, 3 M. and K. 250; Grant v. Yeas, Re Yea, Id. 245 ; Re Newman, 2 M. and C. 112.