1854.

Feb. 25th.

Disentailing
Deed-Assent

of Protector

Power of Sale not barred.

which real es

tates were limited to the use of A. for life, with re

mainder to her son in tail, con

HILL v. PRITCHARD.

By a settlement, dated the 15th of April, 1817, made previously to and in consideration of the marriage which was shortly afterwards solemnised between William Massey, since deceased, and Mary Massey, now his widow, A settlement, by certain hereditaments in Wales were limited, subject to the trusts of a term of 5000 years, vested in trustees to raise portions for the younger children of the marriage, to uses of which the existing uses were, in the first place, for the said Mary Massey for life, with remainder to trustees to preserve contingent remainders, with remainder to the use of the first and other sons of the marriage successively, and the heirs of their respective bodies, with divers remainders over; and the settlement contained a power of sale and exchange, which was given to trustees to be exercised from time to time during the life of Mrs. Massey, and with her consent, to be signified by any writing under her hand and seal.

tained a power of sale and exchange, to be exercised during the life of the tenant for

life, with her consent, signified by writing

under her hand and seal.

By a disentailing deed, to which the tenant for life was a party, the tenant in tail, with the consent of

his mother, the

tenant for life,

testified by her

executing that deed, conveyed the settled estates, subject to her life estate therein, and

also other here

The marriage was duly solemnised, and there was issue thereof. The eldest son of the marriage was named Francis Elcocke Massey, and he attained twenty-one in 1843.

William Massey, the husband, died in 1837, leaving his wife and eldest son surviving.

ditaments, of which he was tenant in tail in possession, to uses to bar dower in his own favour. This deed contained no recital of any contract, but, in the operative part, its object was stated to be in order to defeat the estate or estates tail of the tenant in tail in the hereditaments therein comprised, and all other estates, powers, rights, and interests limited to take effect after the determination or in defeasance of such estate or estates tail, and to limit the fee-simple in such hereditaments, as to such parts thereof as were vested in the tenant for life, subject to her life estate therein, to the uses thereinafter expressed :-Held, that the concurrence of the tenant for life in the disentailing deed did not bar her power of assenting to a subsequent exercise of the power of sale and exchange, because this was a power to raise a use paramount to the estate tail, and there was nothing in the frame of the deed from which a contract could be implied, that the tenant for life would not consent afterwards to the exercise of the power of sale and exchange.

By an indenture, made the 8th of April, 1846, between the said Mary Massey of the first part, the said Francis Elcocke Massey of the second part, and Robert Bover Hinchliffe of the third part, after reciting the said settlement, and certain other instruments, under which the said Francis Elcocke Massey was tenant in tail in possession of certain other hereditaments, and reciting that the said Francis Elcocke Massey had attained the age of twenty-one,—it was witnessed, "that, in order to defeat the estate or estates tail of the said Francis Elcocke Massey, by virtue of the said indenture of settlement and other assurances herein before recited, or any of them, in the hereditaments hereinafter released or intended so to be, and all other estates, powers, rights, and interests limited to take effect after the determination, or in defeasance of such estate or estates tail, and to limit the feesimple in such hereditaments (as to such parts thereof as are vested in the said Mary Massey for her life, subject to her life estate therein,) to the uses and in manner hereinafter expressed,-He the said Francis Elcocke Massey, with the consent of the said Mary Massey, as to such of the hereditaments hereinafter described or referred to, of which she is protector of the settlement creating the estate tail, testified by her executing these presents,' granted and released the said hereditaments, together with other hereditaments of which the said Francis Elcocke Massey was tenant in tail in possession, to the said Robert Bover Hinchliffe and his heirs, to have and to hold the same unto the said Robert Bover Hinchliffe, his heirs and assigns, for ever, to uses to bar dower in favour of the said Francis Elcocke Massey.

Mary Massey and the trustees in whom the power of sale was vested contracted with John Pritchard for the sale to him of part of the estates comprised in the said power. John Pritchard raised the objection, that, having regard to the terms of the disentailing deed, Mary Massey

VOL. I.

F F

E. K. W.

1854.

HILL

v.

PRITCHARD.

Statement.

1854.

HILL

υ.

PRITCHARD.

Statement,

Argument.

could not consent to the exercise of the power of sale; and the trustees and Mary Massey as Plaintiffs, and John Pritchard as Defendant, now presented these facts to the Court in the form of a special case, in which the question was, whether a valid sale and appointment could be made. under the power.

Mr. W. M. James, Q. C., and Mr. Wickens for the Plaintiffs. The right of the tenant for life to consent to the exercise of the power of sale is not affected by this disentailing deed: Roper v. Hallifax (a).

Mr. Rolt, Q. C., and Mr. W. D. Lewis for the Defendant. -The power of the tenant for life, as protector of the settlement, to assent to the disentailing deed is expressly opposed to and in derogation of the power of sale and exchange, which is a power to raise a shifting use to defeat the estate tail. If the shifting use were limited to take effect upon a collateral event, such as the payment by A. of 100%., it would be barred by any assurance that barred the estate tail. But the power of sale is, for this purpose, the same as a use expressly limited. If the event provided for happen, or the power be exercised, before such an assurance, the estate tail will be defeated. If the disentailing deed be first executed the use or power must necessarily be defeated.

Then this disentailing deed contains no reservation of the powers of the tenant for life, for the object of the deed is expressed to be in order to defeat all powers to take effect in defeasance of the estate tail, and to limit the feesimple in these hereditaments in manner thereinafter mentioned. Those words are directly applicable to the power of sale, which is only to be exercised with the consent of

(a) 8 Taunt. 845; Sugd. Pow., App., No. 3.

the tenant for life, and which, therefore, it must have
been intended to destroy during her life, for the power of
consenting possessed by her being appendant to her life
estate might be released. [VICE-CHANCELLOR.-It would
scarcely be a subject of release, but she might have bound
herself by a contract not to consent.] Having joined in
this deed, she cannot now defeat it: Evans v. Jones (a).
[VICE-CHANCELLOR.-That was a contract between two par-
ties to the deed, here the tenant for life merely consents
to enable the tenant in tail to bar his estate tail.] They
cited also the following extract from Burton's Compendium,
p. 308, 5th edition. Supposing a settlement on A. for life,
with remainder to B. in tail, "it seems clear that the
power" of revocation by C. and his heirs "might be made
co-extensive with that estate, because a recovery suffered
by the tenant in tail when in possession would at any
time effectually defeat it. Indeed, it is very usual to
give a power to the trustees and their representatives,
with the consent of the tenant for life or tenant in tail
in possession for the time being," to sell or exchange.
"While the estate of the tenant for life continues, the
power, it is true, is secured. The tenant in tail in re-
mainder cannot suffer a recovery without the concur-
rence of the tenant for life, and even this concurrence
will not necessarily destroy the power. For his old estate
for life may still continue, and whilst that lasts any
shifting use arising by an exercise of the power given to
the trustees must be antecedent to the estate tail, and
paramount to it in title; and therefore the power will still
continue exercisable, notwithstanding any act of the te-
nant in tail.”

The reply was not called for.

1854.

HILL

v.

PRITCHARD.

Argument.

(a) Supra, p 29.

1854.

HILL
V.

PRITCHARD.

Judgment.

VICE-CHANCELLOR SIR W. PAGE WOOD:

I think that this power of sale can be well exercised. The ingenious argument which Lord St. Leonard's used in Roper v. Hallifax (a), has been repeated in this case: that the power of sale was to raise a shifting use which could not be said to be paramount to the estate tail, and therefore, when the estate tail was barred, every interest connected with or depending upon or subsequent to it, was destroyed also.

But, in this case, the same difficulty does not occur as in many other cases, where a shifting use is to be introduced in exercise of a power; because here it must take effect paramount to the estate tail, the exercise of the power of sale and exchange being confined to the lifetime of the tenant for life; and, therefore, no act of the tenant in tail could bar this power: there must be a contract on the part of the tenant for life, not to give that consent, with which alone the power could be exercised. Then, as it is said in the passage cited from Burton, it is true that all the powers to be exercised during the estate tail, with the concurrence of the parties entitled to it, but displacing it to the extent of any interest created under the power, are barred by the effect of a recovery, and that is probably the meaning here of the words in this deed, in order to defeat all powers in defeazance of the estates tail. These words may also refer to the other estates of which he was tenant in tail in possession, and may be intended to defeat all powers which could affect them, and that too would be a sensible construction of the words. But I cannot import into this deed a contract on the part of the tenant for life, that she never would consent to the exercise of the power of sale, unless I am driven to it, in order to give effect to all the words employed; and

(a) 8 Taunt, 845.