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7. If in the exercise of a power, the appointment be made to B. to the use of C., who takes the legal estate ?
A. B. takes the legal estate, and C. has only a trust.-Cruise's Dig. tit. 12, ch. 1, s. 11; Watk. Convey. ch. 21, p. 233, note (a) by Coventry ; Abridgm. of Prest. on Abst. (in 2 Week. Law Mag.), p. 6.
8. Does a will executed in the presence of two witnesses pass real estate in the British colonies, or any of them ?
A. In all the colonies in the; West Indies, except Bermuda (8 Ves. 481 ; 2 Lee's Rep. 498), British Guiana, Trinidad, St. Lucia, and Barbadoes (Anon. 2 P. Will, 75 ; Shelf. Will Act. 348, note), and in those of North America, except Lower Canada (optional, see 2 Knapp's Rep. 329; 14 G. 3, c. 83, s. 10), the Statute of Frauds is still in force, and a will attested pursuant to 7 W. 4 and i Vict., c. 26, 8. 9, is not sufficient.--See 7 W. 4, and i Vict., c. 26, s. 2 ; 4 Burge on Col. and For. Laws, 478; Burton's Comp. by Cooper, Appendix ; Shelf. Will Act, 348, note.
9. What is the distinction between powers appendant and in gross ?
A. Powers appendant, or annexed to the estate, are where a person has an estate in the land, and the estate to be created by the power is to take effect in possession, during the continuance of the estate to which the power is annexed ; as to make leases. Those in gross are where the person to whom they are given has an estate in the land ; but the estate to be created under or by virtue of the power is not to take effect till after the determination of the estate to which it relates ; as to jointure an after-taken wife.-Watkin's Convey.ch. 21 ; 2 Fearne, 334, &c., in note; Sand. Us. 288, 303, 531–555; Cruise's Dig. tit. 32, ch. 15; Burton's Comp. p. 68.
10. What are the essential points to be attended to in the examination of an abstract with documents abstracted ?
A. That the title commence at the proper period. That proper releases of all rights of dower, jointures, annuities, rent-charges, mortgages, legacies, portions, charges, &c., and receipts be shown. That the parcels be regularly identified through the several deeds abstracted. That all the deeds and wills be duly executed and attested. That the descent of the property, and the births, deaths, &c. of the parties be correctly stated, &c. Mr. Preston (1 Abst. 1) says, “It is the duty of the purchaser's solicitor to take care that the abstract contains a correct and faithful statement of all the circumstances disclosed by the deeds, wills, &c.; or depending on extraneous facts, as marriages, burials, baptisms, possessions, descents, disseizins, and the like, and which are material to the title. Mr. Sugden (Vendor's and Purch. Introd.) says, “In comparing the abstract with the title deeds, the attention should be particularly directed to the descriptions of the parties, the recitals, the parcels, and the covenants for quiet enjoyment, free from incumbrances; which frequently lead to incumbrances and facts which have been suppressed. This should be particularly attended to, as a pur
chaser is bound by every deed or fact to which an instrument in his possession leads, by recital or description."
11. State the advantage of taking an assignment of an old term, or otherwise acquiring the legal estate?
A. If a purchaser has no notice, and happens to take a defective conveyance of an estate, defective either by reason of some prior conveyance or of some prior charge or incumbrance, and if he also takes an assignment of the term to a trustee for him, or to himself, where he takes the conveyance of the inheritance to his trustee, in both these cases he shall have the benefit of the term to protect him; that is, he may make use of the legal estate of the term to defend his possession, or if he lias lost the possession, to recover it at common law, notwithstanding that his adversary may at law have the strict title to the inheritance.-Willoughby v. Willoughby, 1 Term Rep. 763, per Lord Hardwicke; Sugd. Vend. and P. Ch. 9, s. 5.
12. One of three executors renounced, the others proved and died ; the renouncing executor survived, who represents the testator?
A. Where there is but one executor, a renunciation by him, or if several, a renunciation by all, will be conclusive, and they cannot afterwards be admitted to the executorship.-Cro. Eliz. 92; Robinson v. Pett, 3 P. Will. 251. But where some only of several executors renounce, and the others prove the will, the renunciation may be retracted after the death of those who proved.—7 Mod. Rep. 39 ; 3 Burr, 1463 ; 4 M. and Selw. 177 ; and if administration be committed to another before refusal by the surviving executor, such administration will be void.—1 Salk. 307, 308, 311. It follows that if there be several executors, and one of them alone proves the will, upon the death of him who proved, his executor does not represent the first testator, but the representation survives to his co-executors.-Cottle v. Aldrich, 4 M. and Selw. 171. The law is the same where one of several executors alone proves, and the rest renounces.-Arnold v. Blencowe, 1 Cox. 426; and if they still persist in refusing to act, administration cumi testamento annexo must be taken out.-Will. Exec. P. 1, b. 3, ch. 6, s. 2.
13. In a lease of a mortgaged estate after default, to whom should the reddendum be made, and with whom should the lessee covenant ?
A. When the premises are in mortgage, both the mortgagor and mortgagee should join in the demise. The mortgagee should “demise lease, and to farm let," and the mortgagor“ grant demise, lease, ratify, and confirm," and the rent should be reserved to the mortgagee so long as the premises shall remain in mortgage ; and to the mortgagor for the residue (if any) of the term. Pow. Mortg. 177 note, Coventry's ed.
14. What precaution should a second mortgagee take to preserve his priority over a third mortgagee?
A. It is a rule that a third mortgagee, not having notice of a second mortgagee, may by buying in the first mortgage, get a priority over the second.-Marsh v. Lee, 2 Vent. 337 ; Powell's Morty. 454, by Coventry. A second mortgagee should immediately levy in first incumbrance --Per Lord Northington, in Belchier v. Butler, 1 Eden, 523; Pow. Mortg. 455, by Coventry.
15. What leases of property in Middlesex do not require to be registered ?
A. Leases at a rack rent (but see Rigge or Reg. 88, note (n.)], or for a p riod not exceeding twenty-one years, where the actual possession and occupation go along with the lease, or of chambers in Serjeants' Inn, the Inns of Court or Chancery, do not require to be registered.Wilson on Deeds, 27–29; Sugd. Vend. and Purch. ch. 16; Rigge, 88, 89.
16. Is a voluntary settlement liable to be defeated, and how ?
A. As to subsequent purchasers, every voluntary conveyance is rendered void by a subsequent purchase for valuable consideration.-2 Black. Com. 297, note by Hovenden ; 27 Eliz. c. 4: Doe v. Manning, 9 East, 931 ; Burton's Comp. 88, &c., even though he had notice of the voluntary conveyance.–Sugd. Vend. & Purch, 1620, &c.; Doe v. Bottreill, 5 B. and Ad. 131 ; Bacon's Abr., tit.“ Fraud" (C).
As against subsequent creditors, a voluntary conveyance by one not indebted at the time (and not made in contemplation of insolvency, &c., 2 Atk. 480, ed. 602), more especially if for a child of the grantor, if no particular evidence or badge of fraud appears, will be good against subsequent creditors.—2 Black. Com. 297, note by Hovenden ; Townsend v. Windham, 2 Ves. Sen. 11; Burt. Comp. 89, &c.; Bacon's Abr., tit. “ Fraud” (C); (but as to family settlements, see Jones v. Marsh. Ca, temp. Talbot, 64; Hungerford v. Earle, 2 Vern. 261; 3 Bac. Abr. p. 311, Kydd's ed.); Gale v. Williamson, 8 Mee, and W. 405; Riches v. Evans, 9 Car. and P. 640 ; Abridgm. of Preston on Abstracts (in 2 Week. Law Mag.), p. 21.
An ante-nuptial settlement, or a post-nuptial settlement, executed in pursuance of ante-nuptial articles, will be good even against subsequent purchasers for a valuable consideration. But a post-nuptial settlement not exected in pursuance of ante-nuptial articles, will not.-Hylton v. Biscoe, 2 Ves. Sen. 308; Beaumont v. Thorp. 1 Ves. Sen. 27 ; Randall v. Morgan, 12 Ves. 73; 2 Black Com. 297, note by Hovenden ; Chapman v. Emery, Cowp. 278; Exp. Hall, 1 Ves. and B. 112; Taylor v. Jones, 2 Atk. 602 ; Battersbeo v. Farrington, 1 Swanst. 106; Holloway v. Millard, 1 Madd. 414; Exp. Bell, 1 Gl. and J. 284.
Conveyances upon trust for the payment of debts already incurred, if the creditors be parties, assent to it will be valid.-Burton's Comp. 90; Wallwyn v. Couts, 3 Keen, 707 ; Garrard v. Lord Lauderdale, 3 Sim. 1; 2 Russ. and M. 451, S.C.; Acton v. Woodgate, 2 My. and K. 492,