13 My. & Ke. 245.

The authority of the Lord Chancellor or the court of Chancery to consent being merely a delegated authority, its exercise must be founded on considerations of general equity, which must embrace in their view the interests and rights of all the parties entitled under the settlement; it differs, therefore, in this respect, materially from the case of a protector exercising his power to consent by virtue of an estate of which he is seised or possessed in his own right. In the latter case, the protector has only to consult his own will, being under no obligation to extend his care to the interests of any other person claiming under the settlement. The following cases, which have arisen upon the 48th sect., will place in a tolerably clear point of view the grounds upon which the consent of the Lord Chancellor or the court of Chancery is to be had.

In the matter of Yea1, the tenant for life being lunatic, and the petitioner, his eldest son, quasi tenant in tail in remainder of a sum of stock, the produce of certain lands which had been sold under an order of the court in a cause, and which sum was declared to be subject to the same uses as the lands had been subject to; the petition prayed that the Lord Chancellor, as protector, would concur with the petitioner in barring the estate tail and the ulterior limitations to which the stock in question was subject, for the purpose of enabling the petitioner to convert the stock into money, to be applied in the purchase of a commission in the army. It appeared, by affidavit, that the tenant for life was in a state of hopeless lunacy; that he was possessed of very considerable landed and funded property; that a very ample allowance was made to his wife for her maintenance; that the petitioner, a lieutenant in the army, had an allowance of 4001. a year out of the estate; that the purpose to which the principal part of the money in question was to be applied was the purchase of a captain's commission for the petitioner, who had entered the army with the full approbation of his father, and who, it was now represented, had a favourable opportunity of purchasing a step: the other parties interested in the estate consented to the application, and Lord Brougham "expressed his opinion, that this was a case which fell within the provisions of the 33rd and 48th sections, and that the circumstances were such as to justify him in exercising his discretion."

In re Blewitt1, the petition stated that the estate in question 13 My. & Ke. was settled upon the first and other sons of A. in tail male, with 250. remainder to his daughters in tail general, with remainder to his collateral relations; that the eldest son of A., who was tenant in tail in possession, and a bachelor, had been for many years in a state of hopeless lunacy; that the petitioner, who was married, but had no issue, was the second son of A. and next tenant in tail in remainder; that a third son had died leaving an infant daughter; and that the only daughter of the said A. was the petitioner's sister, Mary Ann, who was then unmarried. It was further stated, that if the petitioner and his said sister should die in the lifetime of the lunatic, without having barred the entail, the estate would go over to the lunatic's collateral relations, to the exclusion of the infant daughter of the petitioner's deceased brother; and it was therefore prayed, that the Lord Chancellor would consent to the petitioner's disposing of the settled estate, so as to enable him to acquire an estate in fee simple therein, saving only the rights of persons, in respect of estates prior to the estate tail vested in the petitioner. Brougham, C., refused to make any order, observing that, "according to the inclination of his opinion, the act of Parliament did not give him any authority in such a case; but even assuming that he possessed such authority, he did not think that any sufficient ground had been stated in the petition to induce him to exercise a discretionary jurisdiction in the present instance."

2

1838.

An application similar to the preceding was made to Lord Cottenham in re Wood2; the estate in question was settled upon MS. H. T. the lunatic in tail general, and for default of such issue, to A. and B. in undivided moieties in tail general, with cross remainders in tail, with remainders to settlor's right heirs. B. was dead without issue, and the petition was in behalf of A., for the Lord Chancellor's consent to bar the entail. His Lordship was of opinion, as had been decided in re Blewitt, that he was not the protector within the meaning of, and had no jurisdiction in the case before him, under the fines and recoveries' act; but even if this act had given him a discretion, he should, in the case before him, have declined to act."

66

It is perfectly clear in the last two cases, that the Lord Chancellor was not protector, it being manifest upon the whole act, having regard both to its letter and its spirit, that there

2 My. & Cr. 112.

is no protector in cases where there is an estate tail in possession.

In re Newman1, the lunatic was tenant for life, with remainder to his children; he had no children, and was unmarried. The estate was limited in remainder to his brothers and sisters, as tenants in common, in tail, with remainder to the right heirs of the settlor. The eldest brother of the lunatic was the testator's right heir, and he had a remainder in tail in one-sixth, with the ultimate remainder in fee in the entirety. The petition was by one of the sisters and her husband, for the Lord Chancellor's consent to bar the entail of her undivided sixth part. Lord Cottenham said, "This is an application by the husband of one of the daughters of the testator, who is entitled, in default of issue of the lunatic, to an estate tail in one-sixth; and it asks that I would consent, on behalf of the lunatic tenant for life, to a deed, the object of which is to bar the issue of that daughter, and of course to destroy the remainder to the heirs of the settlor, in order to give their share of the property to the husband and wife to dispose of as they please; for it is to be settled to such uses as they shall appoint.

"As protector of the settlement, the only duty of the court is, to see what, with reference to the interests of the family, it would be proper for the tenant for life to do; and the object must be, rather to protect the objects of the settlement, than to give any benefit to one member of the family to the exclusion of the others. Now, if nothing is done, one-sixth will go to the daughter and her children, if she has any; and if not, to the eldest son of the testator as his right heir: and I am asked to consent to that which will take it away from the eldest son, and take it away from the family, by giving it to the husband of the daughter. That would be any thing but protecting the settlement; it would be destroying the settlement; giving the estate to a person not a member of the family, namely, the husband of the daughter. I should not consider, that it would be a proper act for the tenant for life to concur in a deed of disposition to that effect.

"It is not very easy to lay down any general rule on this subject; but there are two cases upon it before Lord Brougham. One of them was very similar to the present: the object being to bar the remainders which had been limited to collateral relations; and the application there was refused; but in the other

case, the object was to make a provision for one of the lunatic's family, his son, and Lord Brougham thought that a fit case for his concurrence as protector. So that he consented, where the intention was to provide for the immediate family of the lunatic; but declined to consent, where the object was to give a benefit to one member of the family at the expense of the others."

(4). The settlor may appoint a protector.]—“That 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 three, and not being aliens, "to be protector of the settlement, in lieu of the person who "would have been the protector if this clause 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, and not being an alien or aliens, whom the "donee of the power shall think proper, by deed, to appoint "protector of the settlement, in the place of any one person, or number of persons, who shall die, or shall by deed relin"quish his or their office of protector; and the person or persons 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; "Provided nevertheless, that, by virtue or means of any such "appointment, the number of the persons to compose the pro"tector shall never exceed three: Provided further, nevertheless, "that every deed by which a protector shall be appointed under "6 a power in a settlement, and every deed by which a protector "shall relinquish his office, shall be void unless inrolled in his "Majesty's high court of Chancery within six calendar months "after the execution thereof: Provided further, nevertheless, that "the person who, but for this clause, would have been sole protec"tor of the settlement, may be one of the persons to be appointed "protector under this clause, if the settlor shall think fit, and shall, unless otherwise directed by the settlor, act as sole pro"tector, if the other persons constituting the protector shall "have ceased to be so by death or relinquishment of the office

1 Sect. 32.

Hibbert v. Rolleston, 3

Bro. C. C. 571;

Curtis v. Perry, 6 Ves. 745; Speldt v. Lechmere, 13 Ves. 588; Brodie v. Perry, 2 Ves. & Bea. 130; Redesdale's Eq. Pl. 116.

Sect. 40.

"by deed, and no other person shall have been appointed in "their place1."

(5). Exclusion of the jurisdiction of courts of equity over the protector's exercise of his authority.]-This statute contains a series of provisions designed to exclude the interposition of courts of equity to aid imperfect attempts of the tenant in tail to alien his estate, or bar the entail. It may be reasonably questioned, whether such provisions were necessary, it being a principle well settled, that a court of equity has no jurisdiction to dispense with the solemnities required by an act of parliament, since it is as much bound as a court of law is by the express words of an act of parliament 2. In pursuance of this object it is provided, "That no disposition by a tenant in "tail shall be of any force, either at law or in equity, under this act, unless made or evidenced by deed; and that no disposition by a tenant in tail resting only in contract, either express or "implied, or otherwise, and whether supported by a valuable or "meritorious consideration or not, shall be of any force at law "or in equity under this act, notwithstanding such disposition "shall be made or evidenced by deed 3."

66

And also, "That in cases of dispositions of lands under this "act by tenants in tail thereof, and also in cases of consents by "protectors of settlements to dispositions of lands under this "act by tenants in tail thereof, the jurisdiction of courts of "equity shall be altogether excluded, either on the behalf of a person claiming for a valuable or meritorious consideration, or "not, in regard to the specific performance of contracts, and the supplying of defects in the execution either of the powers of disposition given by this act to tenants in tail, or of the powers "of consent given by this act to protectors of settlements, and "the supplying under any circumstances of the want of exe"cution of such powers of disposition and consent respectively, "and in regard to giving effect in any other manner to any act or deed by a tenant in tail or protector of a settlement, which, "in a court of law, would not be an effectual disposition or con"sent under this act; and that no disposition of lands, under "this act, by a tenant in tail thereof, in equity, and no consent by a protector of a settlement to a disposition of lands under

66

66

66

this act, by a tenant in tail thereof, in equity, shall be of any force, unless such disposition or consent would, in case of an