Estates Tail Act 1853

Estates Tail Act 1853

In this Act, unless the contrary intention appears – actual tenant in tail means exclusively the tenant of an estate tail which shall not have been barred, and such tenant shall be deemed an actual tenant in tail, although the estate tail may have been divested or turned to a right; base fee means exclusively that estate into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred; estates includes an estate in equity as well as at law, and any interest, charge, lien, or encumbrance in, upon, or affecting lands, either at law or in equity, and any interest, charge, lien, or encumbrance in, upon, or affecting money subject to be invested in the purchase of lands; estate tail, in addition to its usual meaning, means a base fee into which an estate tail shall have been converted; lands includes rents and all hereditaments, whether corporeal or incorporeal, and any undivided share of or in any lands, rents, or hereditaments, corporeal, or incorporeal; money subject to be invested in the purchase of lands includes money, whether raised or to be raised, and whether the amount thereof be or be not ascertained; and shares in joint stock and other public companies, and real and other securities, the produce of which is directed to be invested in the purchase of lands; tenant in tail means not only an actual tenant in tail, but also a person who, where an estate tail shall have been barred and converted into a base fee, would have been tenant of such estate tail if the same had not been barred; the Court means the Supreme Court.

Every assurance already made or hereafter to be made, whether by deed, will, or otherwise, by which lands are or shall be entailed, or agreed or directed to be entailed, shall be deemed a settlement.

Every appointment made in exercise of any power contained in any settlement, or of any other power arising out of the power contained in any settlement, shall be considered part of such settlement, and the estate created by such appointment shall be considered as having been created by such settlement.

Where any such settlement is or shall be made by will, the time of the death of the testator shall be considered the time when such settlement was made.

Subject to the restrictions, conditions, qualifications, and provisions hereinafter contained, every actual tenant in tail, whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of for an estate in fee simple absolute, or for any less estate, the lands entailed, as against all persons claiming the lands entailed by force of any estate tail which shall be vested in or might be claimed by, or which but for some previous Act would have been vested in or might have been claimed by, the person making the disposition at the time of his making the same, and also as against all persons whose estates are to take effect after the determination or in defeasance of any such estate tail; saving always the rights of all persons in respect of estates prior to the estate tail in respect of which such disposition shall be made, and the rights of all other persons, except those against whom such disposition is by this Act authorized to be made.

The power of disposition hereinbefore contained shall not extent to tenants in tail after possibility of issue extinct, nor shall anything in this Act enable any person to dispose of any lands entailed in respect of any expectant interest which he may have as issue inheritable to any estate tail therein.

If a tenant in tail of lands shall make a disposition of the same under this Act by way of mortgage, or for any other limited purpose, such disposition shall, to the extent of the estate thereby created, be an absolute bar in equity as well as at law to all persons as against whom such disposition is by this Act authorized to be made, notwithstanding any intention to the contrary may be expressed or implied in the deed by which the disposition may be effected: Provided always that, if the estate created by such disposition shall be only an estate pour autre vie, or for years absolute or determinable, or if, by a disposition under this Act by a tenant in tail of lands, an interest, charge, lien, or encumbrance shall be created without a term of years absolute or determinable, or any greater estate, for securing or raising the same, then such disposition shall in equity be a bar only so far as may be necessary to give full effect to the mortgage, or to such other limited purpose, or to such interest, lien, charge, or encumbrance, notwithstanding any intention to the contrary may be expressed or implied in the deed by which the disposition may be effected.

If there shall be a tenant in tail of lands under a settlement, and there shall be subsisting in the same lands, or any of them, under the same settlement, and whether created, confirmed, or restored by such settlement, any freehold estate prior to the estate tail, the person who shall be the owner of the prior freehold estate, or the first of such prior estates if more than one, then subsisting under the same settlement, or who would have been so if no absolute disposition thereof had been made (the first of such prior estates, if more than one, being for all the purposes of this Act deemed the prior estate), shall be the protector of the settlement, so far as regards the lands in which such prior estate shall be subsisting.

Such person shall for all the purposes of this Act be deemed the owner of such prior estate, although the same may have been charged or encumbered either by the owner thereof, or by the settlor, or otherwise howsoever, and although the whole of the rents and profits be exhausted or required for the payment of the charges and encumbrances on such prior estate, and although such prior estate may have been absolutely disposed of by the owner thereof, or by or in consequence of the insolvency of such owner, or by any other act or default of such owner.

An estate by way of resulting use or trust to or for the settlor shall be deemed an estate under the same settlement within the meaning of this section.

Where 2 or more persons shall be owners under a settlement within the meaning of this Act of a prior estate, the sole owner of which estate, if there had been only one, would in respect thereof have been the protector of such settlement, each of such persons, in respect of such undivided share as he could dispose of, shall for all the purposes of this Act be deemed the owner of a prior estate, and shall in exclusion of the other or others of them, be the sole protector of such settlement to the extent of such undivided share.

Where a lease at a rent shall be created or confirmed by a settlement, the person in whose favour such lease shall be created or confirmed shall not in respect thereof be the protector of the settlement.

No bare trustee, executor, administrator, or assign, in respect of any estate taken by him as such bare trustee, executor, administrator, or assign, shall be the protector of a settlement.

Where under any settlement there shall be more than one estate prior to an estate tail, and the person who shall be the owner within the meaning of this Act of any such prior estate, in respect of which but for sections 8 and 9, or either of them, he would have been the protector of the settlement, shall by virtue of such sections, or either of them, be excluded from being the protector, the person, if any, who if such estate did not exist would be the protector of the settlement, shall be such protector.

It shall be lawful for any settlor entailing lands to appoint, by the settlement by which the lands shall be entailed, any number of persons in esse, not exceeding 3, and not being aliens, to be protector of the settlement in lieu of the person who would have been the protector if this section had not been inserted, and either for the whole or any part of the period for which such person might have continued protector, and by means of a power to be inserted in such settlement to perpetuate during the whole or any part of such period the protectorship of the settlement in any one person or number of persons in esse (not being aliens) whom the donee of the power shall think proper by deed to appoint protector of the settlement in place of any persons who shall die or shall by deed relinquish the office of protector.

Any person so appointed shall in case of there being no other person then protector of the settlement, be the protector, and shall, in case of there being any other person then protector of the settlement, be protector jointly with such other person.

By virtue or means of any such appointment the number of the persons to compose the protector shall never exceed 3.

Every deed by which a protector shall be appointed under a power in a settlement, and every deed by which a protector shall relinquish his office, shall be void unless a copy thereof be registered in the office of the Registrar of Deeds within 12 months after the execution thereof.

The person who but for this section would have been the sole protector of the settlement may be one of the persons to be appointed protector under this section, if the settlor shall think fit, and shall, unless otherwise directed by the settlor, act as sole protector if the other persons constituting the protector shall have ceased to be so by death or relinquishment of the office by deed, and no other person shall have been appointed in their place.

If any person – being protector of a settlement shall be a convict as defined by the Criminal Code; or not being the owner of a prior estate under a settlement, shall be protector of such settlement, and shall be an infant, or it shall be uncertain whether such last-mentioned person be living or dead – the Court shall be the protector of such settlement in lieu of such person.

If any settlor entailing lands shall, in the settlement by which the lands shall be entailed, declare that the person who as owner of a prior estate under such settlement would be entitled to be protector of the settlement shall not be such protector, and shall not appoint any person to be protector in his stead, the Court shall, as the lands in which such prior estate shall be subsisting, be the protector of the settlement during the continuance of such estate.

If in any other case where there shall be subsisting under a settlement an estate prior to an estate tail under the same settlement, and such prior estate shall be sufficient to qualify the owner thereof to be protector of the settlement, and there shall happen at any time to be no protector of the settlement as to the lands in which the prior estate shall be subsisting, the Court shall, while there shall be no such protector, and the prior estate shall be subsisting, be the protector of the settlement as to such lands.