MUNICIPAL CORPORATIONS. Bill to explain and amend an Act passed in the last Session of Parliament for the London Adjournment-day, Monday, 15th Feb- Regulation of Municipal Corporations in ruary, 1836. England and Wales. Attorney General. ANSWERS TO QUERIES. Law of Property and Conveyancing. Dower.—vol. 10, 143, 287, 383; ante, 119. The only point in dispute between myself and my co-partner in opinion (if I may so style J.), and Z., is this: "Is a subsequent limitation of a power inconsistent with the previous limitations of the fee"? Z. is of opinion that it is; and in support of that view, he cites Gordill v. Brigham, 1 Bos. & Pull. 192. But this case (if it have any bearing whatever on this question), I submit is no longer law. Lord Eldon, in Maundrell v. Maundrell, 10 Ves. 248, said, "The Master of the Rolls seems to have relied upon the case of Gordill v. Brigham, a case decided upon grounds exceedingly questionable, that case going no farther than this-that the legal estate being given, a mode of disposition inconsistent with the legal fee cannot be added; not applying to the mere reservation and execution of a power." And My opinion going along with again, p. 268, Lord Alvanley, cannot yield to this new doctrine, that a power to appoint uses cannot be reserved to the owner of the fee."-See Moreton v. Lees, Sugden on Powers, 339. Z. says that being possessed of the fee at common law, the use could not be raised. In Ray v. Pung, and in Doe v. Jones, 10 B. & C. 459, the purchaser was possessed of the fee ;-the only difference being, that in those cases the use was first limited, and the fee afterwards given. In the latter case it was also given until appointment. But this only brings us back to the original question-is the limitation of an use inconsistent with the possession of the fee? I think I have satisfactorily shewn that it is not. In the case in question, the fee was vested in A. B., and he was also possessed of a power by which he might divest the fee. If the power had been given to another, Z. admits it would have been valid; and it being established, as I have above proved, that the fee and a power may exist in the same person, it is just the same as though the power had been limited to another. If the power can exist in the same person, of course it can be exercised otherwise its existence would be useless." SPES. LEGACY FOR WIFE'S SEParate use. P. 200. WILL. SURVIVORSHIP. P. 200. 1. Upon the face of this question, there is fair reason to doubt whether the testator left the property to his surviving children, or to the children living at the death of the wife; for the construction varies according to the pointing of the sentence: nor is this difference unimportant; for on the one supposition all the children living at the father's death would take vested remainders, in the other case only contingent interests. The reader is not informed what number of children survived the father. Of course, if vested remainders were devised, these interests on the death of the respective devisees would descend to the surviving sisters in co-parceny, and in this case be subject to curtesy in their hands. But supposing the remainders were contingent, then evidently, only the daughters surviving the mother could take; and from the words of limitation it is impossible to discover whether as tenants in common or as joint tenants; most probably the former: but if as joint tenants, then curtesy could not arise, 2 Bl. Com. 183. Assuming that the children took as tenants in common, it is indispensable to a title by curtesy, that issue GRADUS, should be born during coverture, 1 Inst. 29 b; [There is an answer from another corres- but whether this condition has or has not been pondent, but without referring to any authori-fulfilled, seems open to doubt. The younger ties. ED.] 1. The words in the will are the best and most operative words that can be used to exclude the husband's claims; they confer an absolute separate estate on the wife. See Tyrrel v. Hope, 2 Atk. 561; Lee v. Prieaux, 3 Br. C. C. 381; Hartley v. Hurle, 5 Ves. 545; Ex parte Wray, 1 Madd. 376; and Adamson v. Armitage, Coop. 283. The property therefore, being a separate estate in the wife, the husband's assignees can have no right to it. : daughter indeed is said to have died childless, but this clearly does not preclude the possibility of issue having been born during marriage, though none survive. Curtesy is the only title under which the husband can claim by act of law, and in the present case his right to the life estate seems exceedingly doubtful. A. R. 2. The obvious reply is, that the husband can have no possible right to retain the writings. It is difficult to imagine on what ground he can argue for their retention; it cannot be on the ground of heirship certainly; and he has no interest in the estate whatever, though he may have a claim as executor or administrator of his wife for the dividend, against the eldest daughter, who is entitled to them, with the estate by survivorship, and who might either maintain trover, or file a bill in equity for W. F. their production. 2. The point is established beyond contradiction, that a devise or bequest may be made to the separate use of the wife, independent of marital control; and this without the direct intervention of trustees for if necessary, Equity will consider the husband as a trustee for the wife. The only point open to consideration is, whether the words employed by the testator are sufficiently explicit, the cases requiring it to be shewn that a decided intention of excluding the husband's beneficial interest existed. Lumb v. Milnes, 5 Ves. 507; Brown v. Clarke, 3 Ib. 166. It has been held, however, that the words "to her sole use and benefit," gave to the wife a separate estate. Adamson v. Armitage, G. Coop. 283; S. C. 19 Ves. 414; Ex parte Ray, 1 Mod. 199. See the cases quoted in Powell on Devises, 9 edit. 255, n. 1. The words proposed by "H. D." are evidently more extensive. It was formerly held, that a gift to the separate use of an unmarried woman, would restrain alienation, and the enjoyment of the property by any future husband, Anderson v. Änderson, 2 M. & Keen, Observing a communication from "Tem427; but it has since been determined, that ple," in reply to N. M. E., p. 88, "Dissuch a limitation does not alter alienation pre-effectuating the intentions of the testator, claimer," suggesting the proper mode of viously to marriage, and if the property re- mentioned in N. M. E.'s case, I would now mains undisposed of, on marriage it will vest in the husband equally with the other interests add, by way of illustrating my reply in your which the wife may happen to possess. Woud- number of the 9th Jan., p. 183, my reasons meston v. Walker, 2 Russ. & M. 197; Brown v. Pocock, 2 M. & K. 189. Even the intervention of trustees is unavailing, Newton v. Reed, 4 Sym. 141; and in Massey v. Parker, 2 M. & K. 174, it was held, that limitations of this class terminated with coverture. A. R. DISCLAIMER. P. 200. for preferring that opinion, which, though laconic, will I hope be found correct. By my proposal, I should prepare a deed, to which B., the son, and the new trustee or trustees, should be the parties. I would in it recite the will; the death of A. in testator's lifetime; that B. having accepted the trusts in him reposed, was desirous of relinquishing. Then should come the appointment of the new trus, Answers to Queries. Queries. tee or trustees by the son, to whom the said B. should convey the trust estates, relinquishing all his interest in them to him or them; followed by a covenant that he had not incumbered. The whole of this deed might be comprised within 20 folios; and by B. being made a party in the manner before mentioned, would render a separate deed of disclaimer, which would be essential for security in "Temple's" proposal, unnecessary. There can be no objection to B.'s taking the trusts upon him, I should imagine, for so simple a purpose. It would involve him in no responsibility, except as to the acts, if any, of his under the will. In the other case, the deed of disclaimer could not be safely dispensed with; as B.'s renunciation would not be effected by a mere recital in a deed, to which he was not a party, that he had renounced, and would therefore leave it open to his option in future to intermeddle; and in case he should so vexatiously interfere, recourse would be compelled to be had to the Court of Chancery. I also apprehend that the instrument, according to my proposition, would be but about one third of the expense of the other. W. F. 27.9 QUERIES. Law of Attorneys. ADMISSION.-CERTIFICate. A. in last term was admitted an attorney and solicitor, but does not wish to practise, and consequently not to take out his certificate, un til the end of a year from that term, unless previously necessary so to do. Under these circumstances, must he be re-admitted? See 37 Geo. 3, c. 90, sec. 31; or, would it be advisable, to avoid the necessity of a re-admission, to take out the certificate in November next: that being the usual time of payment of the duty. See L. O., p. 115, June 13, 1835. F. C., Common Law. POOR RATE. Is a landlord (who is not a resident in the parish) liable to be rated for a house which is let furnished by the year; and can the payment of the rates be enforced for such time as the house is untenanted? J. B. N. The point raised by "Tyro" has already been decided in a case, Reed v. Devaynes, 2 Cox, 285; where it was held, that a man appointed executor of a will with a legacy thereby, in order to entitle himself to the legacy, must prove the will, though this be not a condition by the will. And this appears based on an obvious reason; for legacies to executors being generally considered in the light of remuneration for trouble, a man who does not prove the will cannot de facto be an executor, and by consequence must lose the legacy. Tyro's case falling within the letter of the rule laid down in the above case, must of course be subject to its decision. Common Law. TAXES ON LAW CHAMBERS. W. F. P. 216. In answer to the query of L. S. hereon: if there is any illegality in the claim for window duty on Law Chambers, it must depend on the demand which has been made for the same, as they are assessed at a lower rate than dwelling houses. That is, every distinct chamber or apartment in any of the inns of court being severally in the tenure or occu. pation of any person or persons which shall not contain more than seven windows, are charged at the rate of 3s. 6d. for every such light. Vide 48 G. 3, c. 58, sched. A. rule 8. T. D. S. CATHEDRAL CHURCH. of a Cathedral Church, legally turn a person Can the Bishop, Dean, or any other member (not in any manner connected with the church) out of stalls of the Cathedral, when and where he has taken his seat as becomes his station in life. G. K. Law of Property and Conveyancing. LEGACY DUTY. A. B., by her will, made and duly executed in 1815, gave and bequeathed unto her niece, C. D., or her assigns, one annuity or yearly sum of 501. during her life, payable half yearly, the first payment to commence in six months after testator's decease; and the said A, B, also gave and bequeathed to two other persons (not relations), annuities of 107. each for their lives, and then directs as follows:-"Which said three several annuities I will shall be paid free and clear of all property tax, or other deductions whatsoever, and charged and chargable upon all my real and personal estates." The testatrix bequeathed considerable personal property to her executors, upon trust to pay the interest to E. F. for life, and the principal to her children on, attaining twenty-one, and directed her executors to deduct all such costs, losses, damages, disbursements, and expenses, any way incident to proving and registering that her will, as they should or might sustain, bear, pay, expend, or be put unto, for or by reason of the performance of that her will, or the trusts thereby reposed in them, or the management and execution thereof, or any other thing in anywise relating thereto. Are the 280 Queries.-Editor's Letter Box. above annuitants liable to pay the legacy duty, or ought the executors to pay it out of the residue of the testatrix's personal estate, and are they legally bound to do so? MORTGAGE.-INSURANCE. X. Y. Z. THE EDITOR'S LETTER BOX. The Book announced a few weeks ago is now nearly ready for publication: the following are its title and contents :-" The Man of Business, or Pocket Companion for Solicitors, Auctioneers, Estate Agents, Valuers and Owners of Property; comprising Precedents, MemoCan a mortgagee in possession retain the randa, Rules, Tables, and Calculations in those mortgaged premises, until not only the prin- Matters of Professional and General Business cipal and interest shall have been paid, but requiring attention, when reference cannot be the expense of insuring against loss by fire had to the Library. Amongst other contents are also? The property consists of houses, which the following: In legal matters: Affidavitsif burnt, would deprive the mortgagee of Agreements-Bail- Bankruptcy-Bills of three-fourths of the mortgage-money. There Sale-Bonds-Cognovits-Conditions of Sale is no covenant about insurance in the mort- - Debtor and Creditor Deeds - Distresses gage deed. A CONSTANT READER. EXECUTOR'S LIABILITY.-LEASE. and Replevins - Guarantees - Notices Riot Stamps Warrants of AttorneyWarranties-Wills, &c. &c. In general bu siness: Valuations of Estates, Freehold, Co. A lessee of a house at a rack-rent, died, pyhold or Leasehold-Annuities-Reversions leaving large assets; can his executor, who-Next Presentations-Deferred Annuities and has not entered on the house, get rid of all fu- Payments, and other Property-Measurement ture liability to payment of the rent, by assign- of Land, Roofs, Artificers' Work, Solid ing the lease; or by any and what other and Superficial Measure, Weight, and Conmeans or is he bound to retain, or justified tents Calculations of Interest- Auction in retaining part of the assets (in order to an-Duty- Comparative Contents and Weights; swer the future rent and covenants), instead of with many Tables and Calculations, on an enhanding the whole thereof over to the resi- tirely new Principle, facilitating, very greatly, duary legatee? AN OLD SUBSCRIBER. all Calculations and Estimates of Values, Quantities, Contracts, Life Annuities, Contingent and Terminable Interests, &c. &c. &c. By Rolla Rouse, Solicitor. PRIORITY OF INCUMBRANCES. - In answer to a Correspondent who inquires as to the Examination of Articled Clerks, we think there can be no doubt that if all the notices, according to the former Practice, were given prior to Hilary Term, for admission in Easter the new rules, which do not come into operaTerm, no examination can be required under tion until after Easter Term. We understand that the Lord Chancellor de clined to grant the prayer of the petition, in the case of Stiffe v. Everett, mentioned at p. 253, ante; but we shall probably be able to give a report of the case. A., B., C., and D., were entitled to property (leasehold and copyhold), in Northumberland, in equal fourths. A., B., and C., having possession of the deeds, concur in de positing them as security for a debt of 1000l.; B. dies, and leaves his share to his sister C. A. and C. afterwards concur in further charg ing their shares of the property as security for another debt of 8001. Z. marries C., and then becomes possessed of half the property in her right; he pays off the 1000%. debt, and obtains the deeds, considering himself as thereby becoming creditor upon the three shares formerly charged with the 1000l. In order to effect this payment, Z. borrows 6007. from Q., and deposits the deeds with him as security for repayment. Z. purchases the This is the First Part of the shares of A. and D., and thus becomes owner new volume for the year 1836.-The great inof the whole property, three-fourths of it be-crease of Reports in all the Courts, all of ing subject to the above-mentioned charges, which are included in this Digest, and the neamounting to 2400/. It is now questioned, cessary enlargement of the Work, have obliged whether, if the property were put up to sale, the Proprietors to raise the price of each part it would realize altogether more than 20007; from 28. to 2s. 6d., its original price. and in that case, would Z. be entitled, as first incumbrancer, to retain the 1000/. advanced by him; or would his claim be merged by his having become entire owner of the property, as above mentioned? LECTOR. in all the Courts of England and Ireland, is The Quarterly Digest of all Reported Cases now published. Our subscribers may rely that we shall, from time to time, give them the earliest information regarding the mode of examining Attorneys under the New Rules; and we beg to refer them to an Article on that subject in the present Number. |