4. Protector of the settlement.]-The act defines, first, who shall be the protector; secondly, how he shall give his consent; thirdly, provides for the case of the protector being lunatic, convict of treason, &c., infant, &c.; fourthly, enables the settlor to appoint a protector; fifthly, excludes the jurisdiction of courts of equity over the exercise of his authority.

(1). Who shall be the protector.]-By the 22nd section it is

enacted1, "That, if at the time when there shall be a tenant 13 & 4 Will. "in tail of lands under a settlement, there shall be subsist- 4, c. 74. "ing in the same lands, or any of them, under the same set"tlement, any estate for years, determinable on the dropping "of a life or lives, or any greater estate (not being an estate "for years), prior to the estate tail, then the person who shall "be the owner of the prior 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 dispo"sition thereof had been made (the first of such prior es"tates, if more than one, being, for all the purposes of this act, "deemed the prior estate), shall be the protector of the settle"ment, so far as regards the lands in which such prior estate "shall be subsisting, and shall, for all the purposes of this act, "be deemed the owner of such prior estate, although the same "may have been charged or incumbered, 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 incumbrances 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 bankruptcy or insolvency of such owner, or by any other act or default of such owner; and that an estate by the curtesy, in respect of the estate tail, or of any prior estate "created by the same settlement, shall be deemed a prior estate "under the same settlement, within the meaning of this clause; "and that 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 clause."

66

66

66

"That, where two 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 set

'Sect. 23.

* Sect. 24.

Sect. 25.

Sect. 26.

& Sect. 27.

tlement, 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 ex"clusion of the other or others of them, be the sole protector of "such settlement, to the extent of such undivided share1."

66

That, where a married woman would, if single, be the pro"tector of a settlement in respect of a prior estate, which is not "thereby settled or agreed or directed to be settled to her sepa"rate use, she and her husband together shall, in respect of "such estate, be the protector of such settlement, and shall be "deemed one owner; but, if such prior estate shall by such set"tlement have been settled or agreed or directed to be settled "to her separate use, then, and in such case, she alone shall "in respect of such estate, be the protector of such settlement 2."

"That, except in the case of a lease hereinafter provided for, "where an estate shall be limited by a settlement, by way of "confirmation, or where the settlement shall merely have the "effect of restoring an estate: in either of those cases, such es"tates shall, for the purposes of this act, so far as regards the "protector of the settlement, be deemed an estate subsisting "under such settlement3."

"That, 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 pro"tector of such settlement 4."

"That no woman, in respect of her dower, and (except in the case hereinafter provided for of a bare trustee under a set"tlement made on or before the 31st of December, 1833) no "bare trustee, heir, executor, administrator, or assign, in respect of any estate taken by him as such bare trustee, heir, exe"cutor, administrator, or assign, shall be the protector of a "settlement 5."

“That 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 the two last preceding clauses, or either of them, he would have been the protector of "the settlement, shall, by virtue of such clauses, or either of "them, be excluded from being the protector; then and in such person (if any) who, if such estate did not exist,

case the

"would be the protector of the settlement, shall be such pro"tector1."

That, where already, or on or before the 31st of December, 1833, an estate under a settlement shall have been disposed of, "either absolutely or otherwise, and either for valuable consi"deration or not, the person who in respect of such estate would, "if this act had not been passed, have been the proper person "to have made the tenant to the writ of entry or other writ, for suffering a common recovery of the lands entailed by such set"tlement, shall, during the continuance of the estate which con"ferred the right to make the tenant to such writ of entry or "other writ, be the protector of such settlement 2."

"That, where any person, having, either already, or on or be"fore the 31st of December, 1833, either for valuable consi"deration or not, disposed of, either absolutely or otherwise, a "remainder or reversion in fee in any lands, or created any estate "out of such remainder or reversion, would, under this act, if "this clause had not been inserted, have been the protector of "the settlement by which the lands were entailed, in which "such remainder or reversion may be subsisting, and thereby "be enabled to concur in the barring of such remainder or re'version, which he could not have done if he had not become "such protector; then, and in every such case, the person who, "if this act had not been passed, would have been the proper person to have made the tenant to the writ of entry or other "writ for suffering a common recovery of such lands, shall, "during the continuance of the estate which conferred the right "to make the tenant to such writ of entry or other writ, be the "protector of such settlement 3."

"That where, under any settlement of lands made before the "passing of this act, the person, who, if this act had not been 'passed, would have been the proper person to make the tenant to the writ of entry or other writ for suffering a common recovery of such lands, for the purpose of barring any estate tail or other estate under such settlement, shall be a bare trustee, "such trustee shall, during the continuance of the estate conferring on him the right to make the tenant to such writ of

t

entry or other writ, be the protector of such settlement 4."

(2). How the protector shall give his consent.]—The protector may give his consent either by the same assurance by which the disposition of the tenant in tail is effected, or by

Sect. 28.

? Sect. 29.

3 Sect. 30.

4 Sect. 31.

1 Sect. 42.

2 Sect. 46.

3 Sect. 43. 4 Sect. 44.

a separate deed, to be executed either on or before the day on which the assurance shall be made1; and, if given by a distinct deed, it must be inrolled in Chancery, "either at or before the time when the assurance shall be inrolled2;" and, in the latter case, the consent shall be considered as absolute, unless, in the deed of consent, the protector" shall refer to the particular assurance by which the disposition shall be effected, and shall confine his consent to the disposition thereby made3." The protector cannot revoke his consent once given1.

(3). Where the protector is lunatic, convict of treason, &c., the Lord Chancellor, or &c., shall be the protector.]The provisions of this act so far, it will be seen, apply only to the case of the protector being sui juris; and it is obvious, therefore, that they would have been imperfect had no provision been made for the contingency of legal disability. To meet this emergency, it is enacted, “That if any person, protec"tor of a settlement, shall be lunatic, idiot, or of unsound “ mind, and whether he shall have been found such by inquisition or not, then the Lord Chancellor of Great Britain,

or other the person or persons for the time being in"trusted by the King's sign manual with the care and com"mitment of the custody of the persons and estates of persons "found lunatic, idiot, and of unsound mind, shall be the proItector of such settlement, in lieu of the person who shall be such "lunatic or idiot, or of unsound mind, as aforesaid; or, if any person, protector of a settlement, shall be convicted of treason

66

66

or felony; or, if any person, not being the owner of a prior "estate under a settlement, shall be protector of such settlement, " and shall be an infant; or, if it shall be uncertain whether such "last-mentioned person be living or dead; then his Majesty's high court of Chancery shall be the protector of such settlement, in lieu of the person who shall be an infant, or whose "existence cannot be ascertained as aforesaid; or, Ꭵf 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, then the said "court of Chancery shall, as to the lands in which such prior "estate shall be subsisting, be the protector of the settlement

"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 said court of Chancery shall, while there shall be no such protector, and the "prior estate shall be subsisting, be the protector of the settle"ment as to such lands1."

66

66

'That, in every case in which the Lord Chancellor, or other the person or persons intrusted with the care and conmitment of the "custody of the persons and estates of persons found lunatic, idiot, "or of unsound mind, or his Majesty's high court of Chancery, "shall be the protector of a settlement, such Lord High Chancellor, or person or persons so intrusted as aforesaid, or the said court " of Chancery (as the case may be), while protector of such settle"ment, shall, on the motion or petition in a summary way, by a tenant in tail under such settlement, have full power to consent "to a disposition, under this act, by such tenant in tail; and the "disposition to be made by such tenant in tail upon such motion "or petition as aforesaid, shall be such as shall be approved of 'by such Lord Chancellor, or person or persons so intrusted as "aforesaid, or the said court of Chancery (as the case may be); "and it shall be lawful for such Lord Chancellor, or person or

persons so intrusted as aforesaid, or the said court of Chancery (as the case may be), to make such orders in the matter as "shall be thought necessary; and, if such Lord Chancellor, or person or persons so intrusted as aforesaid, or the said court of

Chancery (as the case may be), shall, in lieu of any such person as aforesaid, be the protector of a settlement, and there shall "be any other person protector of the same settlement jointly with such person as aforesaid, then and in every such case the "disposition by the tenant in tail, though approved of as aforesaid, shall not be valid, unless such other person, being protector

66

66

1 Sect. 33.

as aforesaid, shall consent thereto in the manner in which the "consent of the protector is by this act required to be given 2." That, in this case, no document or instrument, as evidence of "the consent of such protector to the disposition of a tenant in "tail under such settlement, shall be requisite beyond the order "in obedience to which the disposition shall have been made3."

2 Sect. 48.

3 Sect. 49.