Estates Tail Act 1853
An Act to enable tenants in tail to bar entails, and, subject to certain restrictions, to dispose of entailed lands for estates in fee simple absolute
[Royal Assent 29 September 1853]
Be it enacted by His Excellency SIR WILLIAM THOMAS DENISON, Knight, Lieutenant-Governor of the Island of Van Diemen's Land and its Dependencies, by and with the advice and consent of the Legislative Council thereof, as follows:
(1) 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.(2) 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.(3) 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.(4) 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.
2. How actual tenant in tail may dispose of entailed lands
[Section 2 Amended by 25 Geo. V No. 78 ]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.
3. Power of disposition not to extend to tenant in tail after possibility of issue extinct, &c.
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.
4. Extent of the estate created by a tenant in tail by way of mortgage or for any other limited purpose
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.
5. The owner of the first freehold estate under a settlement prior to an estate tail under the same settlement to be protector of the settlement
[Section 5 Amended by 25 Geo. V No. 78 ](1) 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.(2) 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.(3) 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.
6. Each of 2 or more owners of prior estate to be sole protector as to his share
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.[Section 7 Repealed by 25 Geo. V No. 78 ]
8. Lessee at rent created by settlement not protector
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.
9. No bare trustee or executor, &c., to be protector
[Section 9 Amended by 25 Geo. V No. 78 ]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.
10. Who shall be protector when owner of prior estate excluded by sections 8 and 9
[Section 10 Amended by 25 Geo. V No. 78 ]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.
11. Power of settlor to appoint protector
[Section 11 Amended by 25 Geo. V No. 78 ](1) 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.(2) 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.(3) By virtue or means of any such appointment the number of the persons to compose the protector shall never exceed 3.(4) 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.(5) 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.
12. In cases of lunacy, treason, or felony, &c., Court to be protector
[Section 12 Amended by 25 Geo. V No. 78 ](1) [Section 12 Subsection (1) amended by No. 63 of 1963, s. 2 and Sched. 1 ]If any person –the Court shall be the protector of such settlement in lieu of such person.(a) . . . . . . . .(b) being protector of a settlement shall be a convict as defined by the Criminal Code ; or(c) 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 –(2) 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.(3) 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.
13. Where there is a protector, his consent requisite to enable actual tenant in tail to create larger estate than base fee
[Section 13 Amended by 25 Geo. V No. 78 ](1) If any person, actual tenant in tail of lands under a settlement but not entitled to the remainder or reversion in fee immediately expectant on the determination of his estate tail, shall be desirous of making under this Act a disposition of the lands entailed, and there shall be a protector of such settlement, the consent of such protector shall be requisite to enable such actual tenant in tail to dispose of the lands entailed to the full extent to which he is hereinbefore authorized to dispose of the same.(2) Such actual tenant in tail may, without such consent, make a disposition under this Act of the lands entailed, which shall be good against all persons who, by force of any estate tail which shall be vested in or might be claimed by, or which but for some previous Act or default would have been vested in or might have been claimed by, the person making the disposition at the time of his making the same, shall claim the lands entailed.
14. Where base fee and protector, his consent required to exercise of power of disposition
[Section 14 Amended by 25 Geo. V No. 78 ]When an estate tail shall have been converted into a base fee, the consent of such protector shall, so long as there shall be a protector of the settlement by which the estate tail was created, be requisite to enable the person who would have been tenant of the estate tail if the same had not been barred to exercise, as to the lands in respect of which there shall be such protector, the power of disposition hereinbefore contained.
15. Protector subject to no control in exercise of his power of consenting
[Section 15 Amended by 25 Geo. V No. 78 ](1) Any device, shift, or contrivance by which it shall be attempted to control the protector of a settlement in giving his consent, or to prevent him in any way from using his absolute discretion in regard to his consent, and also any agreement entered into by the protector of a settlement to withhold his consent, shall be void.(2) The protector of a settlement shall not be deemed to be a trustee in respect of his power of consent; and the Court shall not control or interfere to restrain the exercise of his power of consent, nor treat his giving consent as a breach of trust.(3) The rules of equity in relation to dealings and transactions between the donee of a power and any object of the power in whose favour the same may be exercised, shall not be held to apply to dealings and transactions between the protector of a settlement and a tenant in tail under the same settlement, upon the occasion of the protector giving his consent to a disposition by a tenant in tail under this Act.
16. A voidable estate by tenant in tail in favour of purchaser confirmed by subsequent disposition of tenant in tail under this Act, but not against a purchaser without notice
[Section 16 Amended by 25 Geo. V No. 78 ](1) When a tenant in tail of lands under a settlement shall have created in such lands, or any of them, a voidable estate in favour of a purchaser for valuable consideration, and shall afterwards under this Act, by any assurance other than a lease not requiring registration, make a disposition of the lands in which such voidable estate shall be created, or any of them, such disposition, whatever its object may be, and whatever may be the extent of the estate intended to be thereby created, shall, if made by the tenant in tail with the consent of the protector, if any, of the settlement, or by the tenant in tail alone if there shall be no such protector, have the effect of confirming such voidable estate in the lands thereby disposed of to its full extent, as against all persons, excepting those whose rights are saved by this Act.(2) If at the time of making the disposition –such disposition shall have the effect of confirming the voidable estate so far as such tenant in tail would then be capable under this Act of confirming the same without such consent.(a) there shall be a protector of the settlement;(b) such protector shall not consent to the disposition; and(c) the tenant in tail shall not without such consent be capable under this Act of confirming the voidable estate to its full extent –(3) If such disposition shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, the voidable estate shall not be confirmed as against such purchaser and the persons claiming under him.
17. Base fee when united to immediate reversion enlarged instead of being merged
[Section 17 Amended by 25 Geo. V No. 78 ]If a base fee in any lands, and the remainder or reversion in fee in the same lands, shall, at any time, be united in the same person, and there shall be no intermediate estate between the base fee and the remainder or reversion, the base fee shall not merge, but shall be ipso facto enlarged into as large an estate as the tenant in tail, with the consent of the protector, if any, might have created by any disposition under this Act if such remainder or reversion had been vested in any other person.
18. Tenant in tail to make disposition by deed as if seised in fee, but not by will or contract
[Section 18 Amended by 25 Geo. V No. 78 ](1) Every disposition of lands under this Act by a tenant in tail thereof shall be effected by some one of the assurances not being a will by which such tenant in tail could have made the disposition if his estate were an estate at law in fee simple absolute.(2) 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.(3) 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.
19. Assurance by tenant in tail (except certain leases) inoperative unless registered
No assurance by which any disposition of lands shall be effected under this Act by a tenant in tail thereof (except a lease for any term not exceeding 21 years to commence from the date of such lease, or from any time not exceeding 12 months from the date of such lease, where a rent shall be thereby reserved, which, at the time of granting such lease, shall be the full improved annual value of the land, or not less than five-sixths parts of such value), shall have any operation under this Act unless a copy thereof be registered in the office of the Registrar of Deeds within 12 months after the execution thereof.
20. Consent of protector to be given by same assurance or by prior or contemporaneous distinct deed
The consent of the protector of a settlement to the disposition under this Act of a tenant in tail shall be given either by the same assurance by which the disposition shall be effected, or by a deed distinct from the assurance, and to be executed either on or at any time before the day on which the assurance shall be made, otherwise the consent shall be void.
21. If by distinct deed, consent deemed unqualified unless limited to particular assurance
If the protector of a settlement shall by a distinct deed give his consent to the disposition of a tenant in tail, it shall be considered that such protector has given an absolute and unqualified consent, unless in such deed he shall refer to the particular assurance by which the disposition shall be effected, and shall confine his consent to the disposition thereby made.
22. Protector may not revoke consent
It shall not be lawful for the protector of a settlement, who under this Act shall have given his consent to the disposition of a tenant in tail, to revoke such consent.
23. Married woman may consent as a feme sole
Any married woman, being either alone or jointly with her husband protector of a settlement, may under this Act, in the same manner as if she were a feme sole, give her consent to the disposition of a tenant in tail.
24. Consent by distinct deed void unless registered
The consent of a protector to the disposition of a tenant in tail shall, if given by a deed distinct from the assurance by which the disposition shall be effected by the tenant in tail, be void unless a copy of such deed be registered in the office of the Registrar of Deeds either at or before the time when the assurance shall be registered.
25. Courts of equity excluded from giving effect to dispositions which in courts of law would not be effectual
[Section 25 Amended by 25 Geo. V No. 78 ](1) 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 such dispositions, the jurisdiction of courts of equity shall be altogether excluded, either on behalf of a person claiming for 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 execution 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 consent under this Act.(2) 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 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 estate tail at law, be an effectual disposition or consent under this Act in a court of law.
26. Court, when protector, may consent to disposition and make necessary orders, and disposition not valid without consent of joint protector, if any
[Section 26 Amended by 25 Geo. V No. 78 ](1) In every case in which the Court shall be the protector of a settlement, the Court while protector of such settlement 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.(2) 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 the Court.(3) It shall be lawful for the Court to make such orders in the matter as shall be thought necessary.(4) If the Court 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, the disposition by the tenant in tail, though approved of as aforesaid, shall not be valid unless such other person being protector as aforesaid shall consent thereto, in the manner in which the consent of the protector is by this Act required to be given.
27. Order of Court to be evidence of consent
In every case in which the Court shall be the protector of a settlement, no document or instrument, as evidence of the consent of such protector to the disposition of the tenant in tail under such settlement, shall be requisite beyond the order in obedience to which the disposition shall have been made.
28. Act to apply to lands to be sold where purchase-money subject to be invested in purchase of lands to be entailed, and also to money subject to be invested in like manner
[Section 28 Amended by 25 Geo. V No. 78 ](1) Lands to be sold, whether freehold or leasehold, where the money arising from the sale thereof shall be subject to be invested in the purchase of lands to be settled, so that any person, if the lands were purchased, would have an estate tail therein, and also money subject to be invested in the purchase of lands to be settled, so that any person if the lands were purchased would have an estate in tail therein, shall for all the purposes of this Act be treated as the lands to be purchased, and be considered subject to the same estates as the lands to be purchased would if purchased have been actually subject to.(2) All the foregoing provisions of this Act, so far as circumstances will admit, shall, in the case of the lands to be sold as aforesaid being either freehold or leasehold, apply to such lands in the same manner as if the lands to be purchased with the money to arise from the sale thereof were directed to be freehold, and were actually purchased and settled; and shall in the case of money subject to be invested in the purchase of lands to be so settled as aforesaid, apply to such money in the same manner as if such money were directed to be laid out in the purchase of freehold lands, and such lands were actually purchased and settled.(3) Where under this section a disposition shall be made of leasehold lands for years absolute or determinable, so circumstanced as aforesaid, such leasehold lands or money shall, as to the person in whose favour or for whose benefit the disposition is to be made, be treated as personal estate, and the assurance by which the disposition of such leasehold lands or money shall be effected shall be an assignment by deed which shall have no operation under this Act unless a copy thereof be registered in the office of the Registrar of Deeds within 12 months after the execution thereof.
29. Deed required to be registered under Act to be void against claimant for valuable consideration under subsequent deed if latter first registered
Every deed required to be registered as aforesaid by which lands, or money subject to be invested in the purchase of lands, shall be disposed of under this Act, shall, when registered as required by this Act, operate and take effect in the same manner as it would have done if the registration thereof had not been required, except that every such deed shall be void against any person claiming the lands or money thereby disposed of, or any part thereof, for valuable consideration, under any subsequent deed duly registered under this Act, if such subsequent deed shall be first registered.[Section 30 Repealed by 25 Geo. V No. 78 ]
[Section 31 Inserted by 25 Geo. V No. 78 ]This Act may be cited as the Estates Tail Act 1853 .