Settled Land Act 1892 (WA)

Case
No judgment structure available for this case.

The Settled Land Act of 1892.

( 55th Viet., No. 10. )

ARRANGEMENT OF SECTIONS.

PART I.

22. Separate dealing with surface and

PRELIMINARY.

minerals,withor without way-leaves.

Section.

23. Mortgage for equality money, &c.

24. Concurrence in exercise of powers as

1. Division of Act into Parts.

to umlivided share.

2. Short Title.

25. Completion of sale, lease, &c., by con-

veyance.

26. Power for tenant for life to enter into

contracts.

27. Tenant for life infant.

PART IL

28. Married woman, how to be affected.

DEFINITIONS.

29. Tenant for life insane.

3.

(i) Definition of settlement.

(Q) Undisposed of remainder or re-

version.

(3) Settled Land.

PART IV.

( I) Estate of tenant by curtesy.

4. Interpretation of Terms.

INVESTMENT OR OTHER APPLICATION OF

5. Tenant for life.

CAPITAL TRUST MONEY-IMPROVE-

0. Enumeration of other limited owners

MENTS.

to have powers of tenant for life.

30. Capital money under Act, investment,

7. Infant absolutely entitled to be as

&c., by Trustees or Court.

tenant for life.

31. Regulations respecting investment,

8. Trustees of the settlement.

devolution, and income of securi- 32. Investment in land in Western Aus-

9. Capital money.

ties, &c.

tralia.

33. Settlement of land purchased, taken

in exchange, &c.

PART III.

34. Description of improvements author-

ised by Act.

POWERS OF TENANT FOR LIFE.

35. Approval by Court of scheme for im-

10. Powers to tenant for life to sell.

provement and payment thereon.

11. Regulations respecting sale, exchange,

36. Concurrence in improvements.

and partition.

37.Obligation on tenant for life and

12.Transfer of inctuubrances on land

successors to maintain, insure, &c.

sold, &c.

38. Protection as regards waste in execu-

13. Power of tenant for life to lease for

tion and repair of improvements.

ordinary or building or mining

purposes.

14. Regulations respecting leases gene-

rally.

15. Regulations respecting, building leases.

PART V.

16. Regulations respecting mining leases.

17. Part of mining rent to be set aside.

MODE OF EXERCISE OF POWERS-PRO-

18. Leasing powers for special objects.

CEDURE.

19. Surrender and new grant of leases.

39. When tenant for life is sole trustee of

20. Restriction as to mansion house, park,

the settlement, sanction of the

&c.

Court necessary.

21. Dedication of streets, open spaces, &e.

Settled Land Act.

40. Provision where several tenants for

57.Exercise of power, limitation of pro-

life who do not agree.

visions, &c.

41. Notice to trustees.

58. Saving for other powers.

42. Reference of differences to Court.

59. Additional or larger powers by settle-

43. Regulations respecting applications,

ment.

&c.

60.Application of money in hands of

44. Payment of costs out of settled pro-

trustees under powers of settlement.

perty.

61. Application of money paid for lease or

reversion.

62. Cutting and sale of timber and part of

proceeds to be set aside.

63. Proceedings for protection or recovery

PART VI.

of land settled or claimed as settled.

64. Heirlooms.

TRUSTEES, SECURITY, INDEMNITY, &C.

65. Payment into Court.

45. Appointment of Trustees by Court.

46. Number of Trustees to act.

47. Trustees' receipts.

48. Protection of each Trustee individu-

PART VIII.

ally.

49. Protection of Trustees generally.

SETTLEMENTS BY WAY OF TRUST FOIL SALE.

50.Trustees' reimbursements.

66. Provision for case of trust to sell and

51. Commission

ommission to Trustees.

reinvest land.

67. As to consents of tenants for life.

68. Powers given by s. 67 to be exercised

only with leave of Court.

PART VII.

MISCELLANEOUS PROVISIONS.

52. Powers not assignable; contract not

PART IX.

to exercise powers void.

53.Prohibition or limitation against ex-

APPLICATION OF ACT TO LAND HELD UNDER

ercise of powers void.

"THE TRANSFER OF LAND ACT, 1874."

54. Provision against forfeiture.

69. Application of Act to land held under

55.Tenant for life Trustee for all parties

"The Transfer of Land Act, 1874."

interested.

70. Persons dealing with registered pro-

56. General protection of purchasers, &c.

prietor not bound to inquire.

Meztern aurtratia.

ANNO QUINQUAGESIMO QUINTO

VICTORIA: REGINA:.

************M************e******.***************n***

No. X.

AN ACT for facilitating Sales, Leases, and other Dispositions of Settled Land, and for promoting the execution of Improvements thereon.

[Assented to, i gth March, ig92.]

WHEREAS it is desirable to facilitate Sales, Leases, and other

Preamble.

Dispositions of settled Land, and to promote the execution of Improvements thereon : Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

PART I.—PRELIMINARY.

1.

THIS Act is divided into Parts as follows:

Division of Act into

Parts,

PART

I.—PRELIMINARY;

PART

IL—DEFINITIONS ;

PART III.—POWERS OF TENANT FOR LIFE;

55° VICTORI2E, No. 10.

Settled Land Act.

PART W.—INVESTMENT OR OTHER APPLICATION OF

CAPITAL TRUST MONEY—IMPROVEMENTS;

PART V.—MODE OF EXERCISE OF POWERS — PRO-

CEDURE;

PART VI.—TRUSTEES—SECURITY—INDEMNITY, &C. ;

PART VII.—MISCELLANEOUS

.—__ISCELLANEOUS PROVISIONS;

PART VIII.—SETTLEMENTS BY WAY OF TRUST FOR SALE ; PART IX.—APPLICATION OF ACT TO LAND HELD UNDER

" THE TRANSFER OF LAND ACT, 1874."

Short title.

2. THIS Act may be cited as " The Settled Land Act of 1892."

PART IL—DEFINITIONS.

3. (i .) ANY deed, will, agreement for a settlement, or other

Definition of

agreement, covenant to surrender, Act of Parliament, or other

settlement.

45 and 46 Vie., e. 38, instrument, or any number of instruments, whether made or passed

s. 2.

before or after, or partly before and partly after, the commencement of this Act, under or by virtue of which instrument or instruments any land, or any estate or interest in land, stands for the time being limited to or in trust for any persons by way of succession, or under or by virtue of which any persons are beneficially entitled in succession to any land or any estate or interest in land, is a settle- ment for the purposes of this Act, or creates such a settlement, and is in this Act referred to as a settlement, or as the settlement, as the case may be.

Undisposed of

(2.) An estate or interest in remainder or reversion not dis- to the testator's heir, is for the purposes of this Act an estate or interest coming to the settlor or heir under or by virtue of the settlement, and comprised in the subject of the settlement.

remainder or

posed of by a settlement, and reverting to the settlor or descending

reversion.

Settled land.

(3.) Land, and any estate or interest therein, which is the subject of a settlement, is for the purposes of this Act settled land, and is, in relation to the settlement, referred to in this Act as the settled land.

The determination of the question whether land is settled land, for the purposes of this Act, or not, is governed by the state of the facts, and the limitations of the settlement, at the time of the settlement taking effect.

(4.) For the purposes of this Act the estate of a tenant by

Este

Ete of tenant by

the curtesy is to be deemed to be an estate arising under a settle-

nrtesy.

47 and 48 Vie., e. 18, ment made by his wife, comprising the land of which he is tenant

S. 8.

by the curtesy.

55° VICTORLE, No. 10.

Settled Land Act.

4. IN this Act-

Income, possession.

" Income " includes rents and profits ; and "Possession" includes receipt of income ;

45 and 46 Vic., e. 38,

s. 2 (10).

" Rent" includes yearly or other rent, and toll, duty, royalty, or other reservation, by the acre, or the ton, or other- wise ; and, in relation to rent, " Payment " includes delivery, and " Fine " includes premium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift ;

Rent, payment, fine.

The term " Building purposes" includes the erecting and the improving of, and the adding to and the repairing

Building purposes,

building lease.

of, buildings ; and a " Building Lease " is a lease for any building purposes or purposes connected therewith;

The term " Mines and Minerals " means mines and minerals whether already opened or in work, or not, and includes

Mines and minerals,

mining purposes,

all minerals and substances in, on, or under the land,

mining

obtainable by underground or by surface working ; and the term " Mining purposes " includes the sinking and searching for, winning, working, getting, making mer- chantable, smelting or otherwise converting or working for the purposes of any manufacture, carrying away, and disposing of, mines and minerals, in or under the settled land, or any other land, and the erection of buildings, and the execution of engineering and other works, suitable for those purposes ; and a " Mining Lease " is a lease for any mining purposes or purposes connected therewith, and includes a grant or license for any mining purposes ;

" Will" includes a codicil, and any other testamentary instrument, and a writing in the nature of a will ;

Will.

" Securities " include stocks, funds, and shares ;

Securities.

" Court" means the Supreme Court of Western Australia ;

Court.

" Act of Parliament" includes Ordinance and Act of

Act of Parliament.

Council.

TENANT FOR LIFE.

5. THE person who is for the time being, under a settlement,

ulanicilt 4

f 6oryliie

f c„. a 38,

beneficially entitled to possession of settled land for his life, is for

the purposes of this Act the tenant for life of that land, and the 9.2 (5).

tenant for life under that settlement.

If in any case there are two or more persons so entitled as tenants in common, or as joint tenants, or for other concurrent estates or interests, they together constitute the tenant for life for the purposes of this Act.

55" VICTORIIE, No. 10.

Settled Land Act.

A person being tenant for life within the foregoing defini- tions shall be deemed to be such, notwithstanding that under the settlement or otherwise the settled land, or his estate or interest therein, is encumbered or charged in any manner or to any extent.

Enumeration of

6. (I .) EACH person as follows shall, when the estate or interest

to have powers of

other limited owners,

of each of them is in possession, have the powers of a tenant for life

tenant for life.

under this Act, as if each of them were a tenant for life as defined

45 and 46 Vic., c. 38,

s. 58.

in this Act, namely:—

(a.)

A tenant in tail;

(b.)

A tenant in fee-simple, with an executory limitation, any other event ;

gift, or disposition over, on failure of his issue, or in A person entitled to a base fee, although the reversion is in the Crown, and so that the exercise by him of his powers under this Act shall bind the Crown;

(d. ) A tenant for years determinable on life, not holding merely under a lease at a rent ;

( e.) A tenant for the life of another, not holding merely under a lease at a rent ;

(f.)

A tenant for his own or any other life, or for years determinable on life, whose estate is liable to cease in any event during that life, whether by expiration of the estate, or by conditional limitation, or other- wise, or to be defeated by any executory limitation, gift, or disposition over, or is subject to a trust for accumulation of income for payment of debts or other purpose;

(g.)

A tenant in tail after possibility of issue extinct;

(h.)

A tenant by the curtesy ;

(i.)

A person entitled to the income of land under a trust or direction for payment thereof to him during his own or any other life, whether -subject to expenses of management or not, or until sale of the land, or until forfeiture of his interest therein on insolvency or other event.

(2.) In every such case, the provisions of this Act referring to a tenant for life, either as conferring powers on him or otherwise, and to a settlement, and to settled land, shall extend to each of the persons aforesaid, and to the instrument under which his estate or interest arises, and to the land therein comprised.

(3.) In any such case any reference in this Act to death as

regards a tenant for life shall, where necessary, be deemed to refer to

55° VICTORI}E, No. 10.

Settled Land Act.

the determination by death or otherwise of such estate or interest as

last aforesaid.

7. WHERE a person who is in his own right seised of or entitled in possession to land, or beneficially entitled to the whole

Infant absolutely

entitled to be as

tenant for life.

interest in land, is an infant, then for the purposes of this Act the

45 and 46 Vie., e. 38,

land is settled land, and the infant shall be deemed tenant for life

s. 59.

thereof.

TRTJSTEES.

8.     FOR the purposes of this Act the term " trustees of the 1,,m9t f

settlement" means the persons, if any, who are for the time being settlement.

under a settlement trustees of settled land with power of sale, or with 15 nd 46 Vic., c. 38,

a

s. 2 8.

power to consent to or approve of the exercise of such a power of sale, or if there are no such trustees under a settlement, then the persons, if any, for the time being who are by the settlement declared to be trustees thereof for the purposes of this Act, or if there are no such persons then the persons, if ally, in whom the settled land is vested upon the trusts of the settlement.

CAPITAL MONEY.

CAPITAL money arising under this Act, and receivable for the trusts and purposes of the settlement, is

Ca 't

9.

this Act referred to 4s laild 46loVie, e. 38,

n

a n

as capital money arising under this Act.

s. 2 (9).

A fine received on the grant of a lease under any power 47 and 48 Vie., e. 15,

conferred by this Act is to be deemed capital money arising under s. 4.

this Act.

PART III.—POWERS OF TENANT FOR LIFE.

SALE—EXCHANGE—PARTITION,

10.     A TENANT for life

(a.)

May sell the settled land, or any part thereof, or any rifc'etTss:fi Cunt for easement, right, or privilege of any kind, over or 45 and 46 e. 38,

in relation to the same ;

(b.)

May make an exchange of the settled land, or any part thereof, for other land, including an exchange in consideration of money paid for equality of exchange ; and

(c.)

Where the settlement comprises an undivided share in land, or the settled land has under the settlement come to be held in undivided shares, may concur in making partition of the entirety, including a partition in consideration of money paid for equality of partition.

55" VICTOR12E, No. 10.

Settled Land Act.

Regulations

11. (i.) EVERY sale shall be made at the best price , that can

respecting sale,

exchange, and

reasonably be obtained.

partition.

45 and 40 Vic., a. 38,

(2.) Every exchange and every partition shall be made for

s. 4.

the best consideration in land, or in land and money that can reason-

ably be obtained.

(3.) A sale may be made in one lot or in several lots, and either by auction, or by private contract.

(4.) On a sale the tenant for life may fix reserve biddings and buy in at an auction.

(s.) A sale, exchange, or partition may be made subject to

any stipulations respecting title, or evidence of title, or other things.

(6.) On a sale, exchange, or partition, any restriction or

reservation with respect to

(a.) Building on or other user of land, or

(b.) Mines and minerals, or

(c.) The more beneficial working of mines and minerals,

Or

(d.) Any other thing,

may be imposed or reserved and made binding, as far as the law permits, by covenant, condition, or otherwise, on the tenant for life and the settled land, or any part thereof, or on the other party and any land sold or given in exchange or on partition to him.

(7.) Settled land in -Western Australia shall not be given in exchange for land out of Western Australia.

Transfer of Mount-

12. WHERE on a sale, exchange, or partition there is an incum-

brances on land

brance affecting land sold or given in exchange or on partition, the

45 and 40 Vic., c. 38,

sold, &e.

tenant for life, with the consent of the incumbrancer, may charge

s. 5.

that incumbrance on any other part of the settled land, whether already charged therewith or not, in exoneration of the part, sold or so given, and may, by conveyance of the fee-simple, or other estate or interest the subject of the settlement, or by creation of a term of years in the settled land, or otherwise, make provision accordingly.

LEASES.

Power of tenant for

13. A TENANT for life may lease the settled land, or any

life to lease for

part thereof, or any easement, right, or privilege of any kind, over

ordinary or building

or mining purposes.

or in relation to the same, for any purpose whatever, whether

45.and 40 Vic., a. 38,

involving waste or not, for any term not exceeding

s. 6.

(a.) In case of a building lease, thirty years;

(b.) In case of a mining lease, twenty-one years ;

(c.) In case of any other lease, twenty-one years.

55 VICTORI2E, No. 10.

Settled Land Act

14. (1.) EVERY lease shall be made to take effect in possession

Regnlations

not later than twelve months after its date.

respecting leases

generally.

IL. Vie., e. 38,

(2.) Every lease shall reserve the best rent that can reason- ably be obtained, regard being had to any fine taken, and to any

s. 7.

money laid out or to be Laid out for the benefit of the settled land,

and generally to the circumstances of the case.

(3.) Every lease shall contain a covenant by the lessee for

payment of the rent, and a condition of re-entry on the rent not

being paid within a time therein specified not exceeding sixty days.

(4.) A counterpart of every lease shall be executed by the

lessee and delivered to the tenant for life ; of which execution and

delivery the execution of the lease by the tenant for life shall be

sufficient evidence.

(s.) A statement contained in a lease or in an indorsement thereon, signed by the tenant for life, respecting any matter of fact or of calculation under this Act in relation to the lease, shall, in favor of the lessee and of those claiming under him, be sufficient evidence of the matter stated.

BUILDING AND MINING LEASES.

15. (I) EVERY building lease shall be made partly in con-

Regulations respect-

sideration of the lessee, or some person by whose direction the lease

ing building leases.

is granted, or some other person, having erected, or agreeing to

45 and 46 Vic., o. 38,

erect, buildings, new or additional, or having improved or repaired,

8. S.

or agreeing to improve or repair, buildings, or having executed, or

by this Act, for or in connection with building purposes, and may

agreeing to execute, on the land leased, an improvement authorised 52 & 53 Vic., e. 36.

contain an option to be exercised at any time within an agreed number of years not exceeding ten, for the lessee to purchase the land leased at a price fixed at the time of the making of the lease, such price to be the best which, having regard to the rent reserved, can reasonably be obtained, and to be either a fixed sum of money or such a sum of money as shall be equal to a stated number of years' purchase of the highest rent reserved by the lease. Such price, when received, shall for all purposes be capital money arising under this Act.

(2.) A peppercorn rent or a nominal or other rent less than the rent ultimately payable, may be made payable for the first five years, or any less part of the term.

(3.) Where the land is contracted to be leased in lots, the entire amount of rent to be ultimately payable may be apportioned among the lots in any manner ; save that

(a.) The annual rent reserved by any lease shall not

be less than ten shillings;

55° VICTORLE, No. 10.

Settled Land Act.

(b.) The total amount of the rents reserved on all leases for the time being granted shall not be less than the total amount of the rents which, in order that the leases may be in conformity with this Act, ought to be reserved in respect of the whole land for the time being leased ; and

(c.) The rent reserved by any lease shall not exceed one-fifth part of the full annual value of the land comprised in that lease with the buildings there- on when completed.

Regulations respect-

16. (1 .) IN a mining lease

ing mining leases.

(a.) The rent may be made to be ascertainable by or to vary according to the acreage worked, or by or according to the quantities of any mineral or substance gotten, made merchantable, con- verted, carried away, or disposed of, in or from the settled land, or any 'other land, or by or according to any facilities given in that behalf ; and

45 and 40 Vic., c. 38,

s. 0.

(b.) A fixed or minimum rent may be made payable, with or without power for the lessee, in case the rent, according to acreage or quantity, in any specified period does not produce an amount equal to the fixed or minimum rent, to make up the deficiency in any subsequent specified period, free of rent other than the fixed or minimum rent.

( 2 .)

A mining lease may be made partly in consideration of

the lessee having executed, or his agreeing to execute, on the land leased, an improvement authorised by this Act, for or in connection with mining purposes.

Part of mining rent 17. IN the case of a mining lease, whether the mines or minerals to be sot aside. leased are already opened or in work or not, there shall, unless a

45

a

nd 40 Vic., a. 38 ,

contrary intention is expressed in the settlement, be from time to

‘.'l

1

time set aside, as capital money arising under this Act, part of the rent as follows, namely,—where the tenant for life is impeachable for waste in respect of minerals, three-fourth parts of the rent, and otherwise one-fourth part thereof, and in every such case the residue of the rent shall go as rents and profits.

Leasing powers for

18. THE leasing p

ower of a tenant for life extends to the

45 and 40 Vic., e. 38,

special objects.

making of-

s. 12.

(a.) A lease for giving effect to a contract entered into by any of his predecessors in title for making a lease,

55" VICTORI}E, No. 10.

Settled Land Act

which, if made by the predecessor, would have been

binding on the successors in title;

(b.) A lease for giving effect to a covenant of renewal, per- formance whereof could be enforced against the owner for the time being of the settled land ; and

(c.) A lease for confirming, as far as may be, a previous lease, being void or voidable; but so that every lease, as and when confirmed, shall be such a lease as might at the date of the original lease have been lawfully granted under this Act, or otherwise as the case may require.

SURRENDERS.

19. (i .) A TENANT for life may accept, with or without con-

Surrender and new

sideration, a surrender of any lease of settled land, whether made

grant of leases.

under this Act or not; in respect of the whole land leased, or any

45 and 46 Vic., c. 38,

part thereof, with or without an exception of all or any of the mines

s. 13.

and minerals therein, or in respect of mines and minerals, or any of

them.

(2.) On a surrender of a lease in respect of part only of the land or mines and minerals leased, the rent may be apportioned.

(3.)

On a surrender, the tenant for life may make of the

land, or mines and minerals surrendered, or of any part thereof, a

new or other lease, or new or other leases in lots.

(4.)

A new or other lease may comprise additional land, or

mines or minerals, and may reserve any apportioned or other rent.

(s.) On a surrender, and the making of a new or other lease, whether for the same, or for any extended or other term, and whether or not subject to the same, or to any other covenants, pro- visions, or conditions, the value of the lessee's interest in the lease

surrendered may be taken into account in the determination of the

amount of the rent to be reserved, and of any fine to be taken, and of the nature of the covenants, provisions, and conditions to be in- serted in the new or other lease.

(6.) Every new or other lease shall be in conformity with

this Act.

MANSION AND PARK.

20. NOTWITHSTANDING anything in this Act, the Fin-, IiocoiLb

eesnes thereof tioZ n

ti

ina

e

to

cipal. mansion house on any settled land, and the dm

,

]torso,

and other lands usually occupied therewith, shall not be sold or gark„te.

45

an d 46 Vic., e. 38,

leased by the tenant for life, without the consent of the trustees of

15.

the settlement, or an order of the Court.

55° VICTORLE, No. 10.

Settled Land Act

STREETS AND OPEN SPACES.

21. ON or in connection with a sale for building pm-poses, or a

Dedication of

streets, open spaces,

building lease, the tenant for life, for the general benefit of the

&e.

residents on the settled land, or on any part thereof

45 and 40 Vic., e. 38,

s. 16.

(a.) May cause or require any parts of the settled land to be appropriated and laid out for streets, roads, paths, squares, gardens, or other open spaces, for the use, gratuitously or on payment, of the public or of individuals, with sewers, chains, watercourses, fencing, paving, or other works necessary or proper in con- nection therewith ;

(b.) May provide that the parts so appropriated shall be conveyed to or vested in the trustees of the settle- ment, or other trustees, or any company or public body, on trusts or subject to provisions for securing the continued appropriation thereof to the purposes aforesaid, and the continued repair or maintenance of streets and other places and works aforesaid, with or without provision for appointment of new trustees when required; and

May execute any general or other deed necessary or proper for giving effect to • the provisions of this section (which deed may be enrolled in the of fice of the Registrar of Titles), and thereby declare the mode, terms, and conditions of the appropriation, and the manner in which and the persons by whom the bene- fit thereof is to be enjoyed, and the nature and extent of the privileges and conveniences granted.

SURFACE AND MINERALS APART.

Separate dealing

22. (I .) A SALE, exchange, partition, or mining lease, may be

with surface and

made either of land, with or without an exception or reservation of

minerals, with or

all or any of the mines and minerals therein, or of any mines and

without way-leaves,

&c.

minerals, and in any such case with or without a grant or reservation

45 and 46 Vic., e. 38,

of powers of working, way-leaves or rights of way, rights of water

s. 17.

and drainage, and other powers, easements, rights, and privileges for or incident to or connected with mining purposes, in relation to the settled land, or any part thereof, or any other land.

(2 .)

An exchange or partition may be made subject to and in

consideration of the reservation of an undivided share in mines or

minerals.

MORTGAGE.

23. WHERE money is required for equality of exchange or

Mortgage for

equality money, &c.

partition, the tenant for life may raise the same on mortgage of the

55° VICTORLE, No. 10.

Settled Land Act

settled land, or of any part thereof, for conveyance of the fee-simple,

.c1;: iasud 46 Vie., e. 38,

or other estate or interest the subject of the settlement, or by crea- tion of a term of years in the settled land, or otherwise, awl the money raised shall be capital money arising under this Act.

UNDIVIDED SHARE.

WHERE the settled land comprises an undivided share in land, or, under the settlement, the settled land has come to be held

Concurrence in

exercise of powers as

to undivided share.

in undivided shares, the tenant for life of an undivided share may

45 and 46 Vie., c. 38,

join or COUCH'', in any manner and to any extent necessary or proper

5, 10.

for any purpose of this Act, with any person entitled to or having

power or right of disposition of or over another undivided share.

24.

CONVEYANCE.

(I.) ON a sale, exchange, partition, lease, mortgage, or charge, the tenant for life may, as regards land sold, given in exchange

Completion of

sale, lease, &cc by

or on partition, leased, mortgaged, or charged, or intended so to be,

conveyance.

45

eG r

e. 38,

including leasehold land vested in trustees, or as regards easements

s. 20.

or other rights or privileges sold or leased, or intended so to be, con- vey or create the same by deed, for the estate or interest, the subject of the settlement, or for any less estate or interest, to the uses and in the manner requisite for giving effect to the sale, exchange, partition, lease, mortgage, or charge.

25.

( 2 .)

Such a deed, to the extent and in the manner to and in.

which it is expressed or intended to operate and can operate under this Act, is effectual to pass the land conveyed, or the easements, rights, or privileges created, discharged from all the limitations, powers, and provisions of the settlement, and from all estates, interests, and charges subsisting or to arise thereunder, but subject to and with the exception of

(a.)

rill estates, interests, and charges having priority to the settlement ;

(b.) All such other, if any, estates, interests and charges as have been conveyed or created for securing money actually raised at the date of the deed ; and

(c.) rlll leases and grants at fee-farm rents or otherwise, and all grants of easements, rights of common, or other rights or privileges granted or made for value in money or money's worth, or agreed so to be, before the date of the deed, by the tenant for life, or by any of his predecessors in title, or by any trustees for him or them, under the settlement, or under any statutory power, or being otherwise binding on the successors in title of the tenant for life.

550 VICTORUE, No. 10.

Settled Land Act.

CONTRACTS.

Power for tenant for

26. (n.) FOR the purposes and subject to the provisions of this

life to enter into

contracts.

Act, a tenant for life

45 and 46 Vic., c. 38,

s. 31.

(a.) May contract to make any sale, exchange, partition,

mortgage, or charge ;

May vary or rescind, with or without consideration, the contract, in the like cases and manner in which, if he were absolute owner of the settled land, he might lawfully vary or rescind the same, but so that the contract as varied be in conformity with this Act ; and any such consideration, if paid in money, shall be capital money arising under this Act ;

(b.)

(c.) May contract to make any lease ; and in making the lease may vary the terms, with or without consider- ation, but so that the lease be in conformity with this Act ;

(d.) May accept a surrender of a contract for a lease, in like manner and on the like terms in and on which he might accept a surrender of a lease ; and thereupon may make a new or other contract, or new or other contracts, for or relative to a lease or leases, in like manner and on the like terms in and on which he might make a new or other lease, or new or other leases, where a lease had been granted;

(e.) May enter into a contract for or relating to the execution of any improvement authorised by this Act, and may vary or rescind the same ; and

May, in any other case, enter into a contract to do any act for carrying into effect any of the purposes of this Act, and may vary or rescind the same.

(2.) Every such contract shall be binding on and shall enure for the benefit of the settled land, and shall be enforceable against and by every successor in title for the time being of the tenant for life, and may be carried into effect by any such successor ; but so that it may be varied or rescinded by any such successor, in the like case and manner, if any, as if it had been-made by himself.

(3.) The Court may, on the application of the tenant for life, or of any such successor, or of any person interested in any contract, give directions respecting the enforcing, carrying into effect, varying, or rescinding thereof.

(4.) Any preliminary contract under this Act for or relating to a lease shall not form part of the title or evidence of the title of any person to the lease, or to the benefit thereof.

55" VICTORI}E, No. 10.

Settled Land Act.

INFANTS, MARRIED WOMEN, LUNATICS.

27. WHERE a tenant for life, or a person having the powers

of a tenant for life under thi.s Act, is an infant, or an infant would, Te"s"t life

tit for

if he were of full age, be a tenant for life, or have the powers of a 45 and 46 Vie., e. 35,

tenant for life under this Act, the powers of a tenant for life under s ' 60.

this Act may be exercised on his behalf by the trustees of the settle-

ment, and if there are none, then by such person and in such manner

as the Court, on the application of a testamentary or other guardian

or next friend of the infant, either generally or in a particular instance,

may order.

28. IN the application of this Act to married women, the

Married woman, how

following provisions shall have effect, :—

to be affected.

45 and 46 Vic., c. 38,

( .) Where a married woman who, if she had not been a s. 61.

married woman, would have been a tenant for life or would have had the powers of a tenant for life under the foregoing provisions of this Act, is entitled for her separate use, or is entitled under any statute, passed or

to be passed, for her separate property, or as a few sole,

then she, without her husband, shall have the powers

of a tenant for life under this Act.

(2.) Where she is entitled otherwise than as aforesaid, then she and her husband together shall have the powers of a tenant for life under this Act.

(3.)

The provisions of this Act referring to a tenant for life and a settlement and settled land shall extend to the married woman without her husband, or to her and her husband together, as the case may require, and to the instrument under which her estate or interest arises, and the land therein comprised.

(4.) The married woman may execute, make, and do all deeds, instruments, and things necessary or proper for giving effect to the provisions of this section.

(s.) A restraint on anticipation in the settlement shall not prevent the exercise by her of any power under this Act.

29. WHERE a tenant for life, or a person having the powers

Tenant for life,

of a tenant for life under this Act, is a lunatic, and a committee of

insane.

his estate has been appointed under the provisions of " The Lunacy

45 and 46 Vic., c. 38,

Act, 1871," or any Act amending or in substitution for that Act, the

s. 62.

committee of his estate may, in his name and on his behalf, under an order of the Court, exercise the powers of a tenant for life under

this Act ; and the order may be made on the petition of any person

interested in the settled land, or of the committee of the estate.

550 VICTORIIE, No. 10.

Settled Land Act.

PART IV.—INVESTMENT OR OTHER APPLICATION OF CAPITAL

TRUST MONEY—IMPROVEMENTS.

Capital money under

30. CAPITAL money arising under this Act, subject to pay-

Act ; investment,

ment of claims properly payable thereout, and to application thereof

&e., by trustees or

Court.

for any special authorised object for which the same was raised, shall,

45 and 46 Vin, c. 38,

when received, be invested or otherwise applied wholly in one, or

s. 21.

partly in one and partly in another or others, of the following modes,

namely :-

(a.)

In investment on Government securities of the United Kingdom or any one of the Australasian Colonies, or on mortgage of unencumbered freehold property in Western Australia, or on other securities on which the trustees of the settlement are by the settlement or by law authorised to invest trust money of the settle- ment, with power to vary the investment into or for any other such securities ;

(b.)

In discharge, purchase, or redemption of incumbrances affecting the inheritance of the settled land, or other the whole estate the subject of the settlement ;

(c.)

In payment for any improvement authorised by this Act ;

(d.)

In payment for equality of exchange or partition of

settled land ;

(e.)

In purchase of the reversion or freehold in fee of any part of the settled land, being leasehold land held for years, or life, or years determinable on life ;

U.) In purchase of land in fee-simple, or of leasehold land held for forty years or more unexpired at the time of purchase, subject or not to any exception or reserva- tion of or in respect of mines or minerals therein, or of or in respect of rights or powers relative to the working of mines or minerals therein, or in other land ;

(g.)

In purchase, either in fee-simple, or for a term of forty years or more, of mines and minerals convenient to be held or worked with the settled land, or of any ease- ment, right, or privilege convenient to be held with the settled land for mining or other purposes ;

(h.)

In payment to any person becoming absolutely entitled

or empowered to give an absolute discharge ;

(i.)

In payment of costs, charges, and expenses of or inci- dental to the exercise of any of the powers, or the execution of any of the provisions, of this Act;

55" ITICTORLE, No. 10.

Settled Land Act.

(j.) In any other mode in which money produced by the

exercise of a power of sale in the settlement is applic-

able thereunder.

31. (1.) CAPITAL money arising under this Act shall, in order

Regulations respect-

to its being invested or applied as aforesaid, be paid either to the

ing investment,

trustees of the settlement or into Court, at the option of the tenant

devolution, and

income of securities,

for life, and shall be invested or applied by the trustees, or under the

&e.

direction of the Court, as the case may be, accordingly.

45 and 40 Vie., e. 38,

s. 22.

(2.) The investment or other application by the trustees shall be made according to the direction of the tenant for life, and in default thereof, according to the discretion of the trustees, but in the last-mentioned case subject to any consent required or direction given by the settlement with respect to the investment or other application by the trustees of trust money of the settlement ; and any investment shall be in the names or under the control of the trustees.

(3.) The investment or other application under the direction of the Court shall be made on the application of the tenant for life, or of the trustees.

(4.) Any investment or other application shall not during the life of the tenant for life be altered without his consent.

(s.) Capital money arising under this Act while remaining uninvested or unapplied, and securities on which an investment of any such capital money is made, shall for all purposes of disposition, transmission, and devolution, be considered as land, and the same shall be held for and go to the same persons successively, in the same

manner and for and on the same estates, interests, and trusts, as the

land wherefrom the money arises would, if not disposed of, have been

held and have gone under the settlement.

(6.) The income of those securities shall be paid or applied as the income of that land, if not disposed of, would have been payable or applicable under the settlement.

(v.) Those securities may be converted into money, which shall be capital money arising under this Act.

32. CAPITAL money arising under this Act from settled land

Investment in land

in Western Australia shall not be applied in the purchase of land

in western Australia. 45 and 40 Vic., e. 38,

out of Western Australia, unless the settlement expressly authorises

s. 23.

such application.

Settlement of land

33. (I.) LAND acquired by purchase or in exchange, or on

purchased, taken in

exchange, &e.

partition, shall be made subject to the settlement in manner directed

45 and 40 Vie., e. 38,

in this section.

s. 24.

55° VICTORLE, No. 10.

Settled Laud Act.

(2.) Freehold land shall be conveyed to the uses, on the trusts, and subject to the powers and provisions which, under the settlement, or by reason of the exercise of any power of charging therein contained, are subsisting with respect to the settled land, or as near thereto as circumstances permit, but not so as to increase or multiply charges or powers of charging.

(3.) Leasehold land shall be conveyed to and vested in the trustees of the settlement on trusts, and, subject to powers and pro- visions corresponding, as nearly as the law and circumstances permit, with the uses, trusts, powers, and provisions to on and subject to which freehold land is to be conveyed as aforesaid; so nevertheless that the beneficial interest in land held by lease for years shall not vest absolutely in a person who is by the settlement made by pur- chase tenant in tail, or in tail male, or in tail female, and who dies under the age of twenty-one years, but shall, on the death of that person under that age, go as freehold land conveyed as aforesaid would go.

(4.) Land acquired as aforesaid may be made a substituted security for any charge in respect of money actually raised, and remaining unpaid, from which the settled land, or any part thereof, or any undivided share therein, has theretofore been released on the occasion and in order to the completion of a sale, exchange, or partition.

(5.)

Where a charge does not affect the whole of the settled

land, then the land acquired shall not be subjected thereto, unless the land is acquired either by purchase with money arising from sale of land which was before the sale subject to the charge, or by an exchange or partition of land which, or an undivided share wherein, was before the exchange or partition subject to the charge.

(6.) On land being so acquired, any person who, by the

direction of the tenant for life so conveys the land as to subject it to

any charge, is not concerned to inquire whether or not it is proper

that the land should be subjected to the charge.

(7.) The provisions of this section referring to land extend and apply, as far as may be, to mines and minerals, and to easements, rights, and privileges over and in relation to land.

IMPROVEMENTS WITH CAPITAL TRUST MONEY.

34. IMPROVEMENTS authorised by this Act are the making or

Description of

improvements

execution on, or in connection with, and for the benefit of settled

authorised by Act.

land, of any of the following works, or of any works for any of the

45 and 45 Vic., e. 38,

s. 25.

following purposes, and any operation incident to or necessary or proper in the execution of any of those works, or necessary or proper

55° VICTORIA], No. 10.

Settled Land Act.

for carrying into effect any of those purposes, or for securing the full

benefit of any of those works or purposes, namely,

(a.) Drainage, including the straightening, widening, or

deepening of drains, streams and watercourses ;

(b.) Irrigation, warping;

(c.) Drains, pipes, and machinery for supply and distribution

of sewage as manure ;

(d.) Embanking or weiring from a river or lake, or from

the sea, or a tidal water ;

(e.) Groynes, sea-walls, defences against water ;

( f) Enclosing, straightening of fences, re-division of fields ;

(g.) Reclamation, dry warping;

(h.) Farm roads, private roads, roads or streets in villages

or towns ;

(i.) Clearing, trenching, planting;

(j.)

Cottages for laborers, farm-servants, and artisans,

employed on the settled land or not;

(k.) Dwelling-houses, warehouses, offices, out-buildings, and

other buildings ;

(1.) Saw-mills, scutch-mills, and other mills, water-wheels, engine-houses, and kilns, which will increase the value of the settled land for agricultural or pastoral purposes or as woodland or otherwise ;

(vi.) Reservoirs, tanks, conduits, watercourses, pipes, wells, ponds, shafts, dams, weirs, sluices, and other works and machinery for supply and distribution of water for agricultural, pastoral, manufacturing, or other purposes, or for domestic or other consumption;

(n.) Tramways, railways, canals, docks ;

(o.) Jetties, piers, and landing places on rivers, lakes, the sea, or tidal waters, for facilitating transport of persons and of agricultural stock and produce, and of manure, and other things required for agri- cultural purposes, and of minerals and of things required for mining purposes;

(p.)

Streets, roads, paths, squares, gardens, or other open spaces for the use, gratuitously or on payment, of the public or of individuals, or for dedication to the public, the same being necessary or proper in con-

550 VICTORLE, No. 10.

Settled Land Act.

nection with the conversion of land into building

land;

(q.)

Sewers, chains, watercourses, pipe-making, fencing, paving, brick-making, tile-making, and other works necessary or proper in connection with any of the objects aforesaid;

(r.) Trial pits for mines, and other preliminary works necessary or proper in connection with development of mines;

(s.) Reconstruction, enlargement, or improvement of any of such works, whether executed under the provisions of this Act or already existing.

35. (I WEIERE the tenant for life is desirous that capital

Approval by Court of

scheme for improve-

money arising under this Act shall be applied in or towards pay-

ment and payment

ment for an improvement authorised by this Act, he may submit for

thereon.

45 and 46 Vic., e. 38,

approval to the trustees of the settlement, or to the Court, as the

s. 26.

case, may require, a scheme for the execution of the improvement,

showing the proposed expenditure thereon.

(2.) Where the capital money to be expended is in the hands of trustees, then, after a scheme is approved by them, the trustees may apply that money in or towards payment for the whole or part of any work or operation comprised in the improvement, on

(a.) An order of the Court declaring that the work or operation, or some specified part thereof, has been properly executed, and what amount is properly payable by the trustees in respect thereof, which order shall be conclusive in favor of the trustees as an authority and discharge for any payment made by them in pursuance thereof ; or on

(b.)

A certificate to the like effect of a competent engineer or practical surveyor nominated by the trustees and approved by the Court, which certificate shall be conclusive as aforesaid ; or on

(c.) An order of the Court directing or authorising the trustees to so apply a specified portion of the capital money.

(3 .) Where the capital money to be expended is in Court, then, after a scheme is approved by the Court, the Court may, if it thinks fit, on a report or certificate of a competent engineer or practical surveyor, approved by the Court, or on such other evidence as the Court thinks sufficient, make such order and give such direc- tions as it thinks fit for the application of that money, or any part

55° VICTORDE, No. 10.

Settled Land Act

thereof, in or towards payment for the whole or part of any work or

operation comprised in the improvement.

EXECUTION AND REPAIR OF IMPROVEMENTS.

36.

THE tenant for life may join or concur with any other person interested in executing any improvement authorised by this

Concurrence in

improvements.

45 and 46 Vic., c. 38,

Act, or in contributing to the cost thereof.

s. 27.

(1.) THE tenant for life, and each of his successors in title having, under the settlement, a limited estate or interest only in the

Obligation on tenant

for life and

settled land, shall maintain and repair, at his own expense, every

tain, insure, Sta.

successors to main-

improvement executed under the foregoing provisions of this Act,

45 and 46 Vie., c. 38,

and where a building or work in its nature insurable against damage

s. 28.

by fire is comprised in the improvement, shall insure and keep in- sured the same, at his own expense, in such amount, if any, as the Court by order in any case prescribes.

(2.) The tenant for life, or any of his successors as aforesaid, shall not cut down or knowingly permit to be cut down, except in proper thinning, any trees planted as an improvement under the foregoing provisions of this Act. •

(3.) The tenant for life, and each of his successors as afore- said, shall from time to time, if required by the Court, on or without the suggestion of any person having, under the settlement, any estate or interest in the settled land in possession, remainder, or other- wise, report to the Count the state of every improvement executed under this Act, and the fact and particulars of fire insurance, if any.

(4.) The Court may vary any order made by it under this section, in such manner or to such extent as circumstances appear to require, but not so as to increase the liabilities of the tenant for life, or any of his successors as aforesaid.

(5.) If the tenant for life, or any of his successors as afore- said, fails in any respect to comply with the requirements of this section, or does any act in contravention thereof, any person having, under the settlement, any estate or interest in the settled land in possession, remainder, or reversion, shall have a right of action, in respect of that default or act, against the tenant for life ; and the estate of the tenant for life, after his death, shall be liable to make good to the persons entitled under the settlement any damages occasioned by that default or act.

37.

38. THE tenant for life, and each of his successors in title

Protection as regards

having under the settlement a limited estate or interest only in the

waste in execution

settled land, and all persons employed by or under contract with the

and repair of im-

provements.

tenant for life, or any such successor, may from time to time enter

45 and 46 Vic., e. 38,

on the settled land, and, without impeachment of waste by any re-

s. 29.

55° VICTORIIE, No. 10.

Settled Land Act.

mainderman or reversioner, execute thereon any improvement authorised by this Act, or inspect, maintain, and repair the same, and, for the purposes thereof, do, make, and use on the settled land, all acts, works, and conveniences proper for the execution, mainten- ance, repair, and use thereof, and get and work freestone, limestone, clay, sand, and other substances, and make tramways and other ways, and burn and make bricks, tiles and other things, and cut down and use timber and other trees not planted or left standing for shelter or ornament.

PART V.—MODE OF EXERCISE OF POWERS—PROCEDURE.

39. WHEN the tenant for life is the sole trustee of the settle-

When tenant for life

is sole trustee of the

ment, or the tenants for life, being two or more, are the sole trustees

settlement, sanction

of the settlement, or there is no trustee of the settlement, the powers

of the Court neces-

sary.

conferred by this Act on a tenant for life shall not be exercised with-

out the sanction of the Court.

WHEN there are more tenants for life than one, and they otherwise tillable to concur, in any dealing with the settled land pro- posed by one or more of them, the Court may on the application of any of them direct that any of the powers conferred by this Act on a tenant for life shall be exercised by one or more of such tenants for life, and on such conditions as the Court thinks fit.

Provision where

40.

several tenants for

do not concur, or one or more of them is or are from disability or

life who do not

agree.

(1.) A TENANT for life, when intending to make a sale, ex- exchange, partition, lease, mortgage, or charge, shall give notice of his intention in that behalf to each of the trustees of the settlement (other than himself if he is one of the trustees), by posting registered letters, containing the notice, addressed to the trustees, severally, each at his usual or last known place of abode in Western Australia, and shall give like notice to the solicitor for the trustees, if any such solicitor is known to the tenant for life, by posting a registered letter, containing the notice, addressed to the solicitor at his place of busi- ness in Western Australia.

Notice to trustees.

41.

45 and 46 Vie., c. 38,

change, partition, lease, mortgage, or charge, or a contract for a sale,

s. 45.

Such letter shall be posted not less than three months before the making by the tenant for life of the sale, exchange, partition, lease, mortgage, or charge, or the contract for the same.

(2.) Provided that at the date of notice given the number of trustees must be not less than two, unless one trustee only is ap- pointed by the settlement, or a contrary intention is expressed in the settlement.

(3.) The notice may be notice of a general intention in that

47 and 48 Vic., o. 18, behalf.

s. 5.

55" VICTORI1E, No. 10.

Settled Land Act.

(4.) The tenant for life must, upon request by a trustee of the settlement, furnish to him such particulars and information as may reasonably be required by him from time to time with reference to sales, exchanges, partitions, or leases effected, or in progress, or immediately intended.

(s.) Any trustee by writing under his hand may waive notice, either in any particular case or generally, and may accept less than three months' notice.

(6.) A person dealing in good faith with the tenant for life is not concerned to inquire respecting the giving of any such notice as

45 and 46 Vic., e. 38,

s. 45.

is required by this section.

42. IF at any time a difference arises between a tenant for life

Reference of dif-

and the trustees of the settlement, respecting the exercise of any of

ferences to Court.

the powers of this Act, or respecting any matter relating thereto, the

45 and 46 Vie., c. 38,

s. 41.

Court may, on the application of either party, give such directions respecting the matter in difference, and respecting the costs of the application, as the Court thinks fit.

43. (I.) EVERY application to the Court shall be by petition,

Regulations respect.

or by summons in Chambers.

ing applications, Ste. 45 and 46 Vie., e. 38,

(2.) On an application by the trustees of a settlement notice shall be served in the first instance on the tenant for life.

s. 46.

(3.) On any application notice shall be served on such persons, if any, as the Court thinks fit.

(4.) The Court shall have full power and discretion to make such order as it thinks fit respecting the costs, charges, or expenses of all or any of the parties to any application, and may, if it thinks fit, order that all or any of those costs, charges, or expenses be paid out of the property subject to the settlement.

(s.) General Rules may be made for the purposes of this Act by the Chief Justice of the Supreme Court, and such Rules shall be deemed Rules of Court within Section twenty-four of " The Supreme Court Act, 1880."

44. WHERE., the Court directs that any costs, charges, or ex-

Payment of costs

penses be paid out of property subject to a settlement, the same shall,

out of settled

subject and according to the directions of the Court, be raised and

property.

45 and 40 vie., 0. 38,

paid out of capital money arising under fins Act, or other money

s. 47.

liable to be laid out in the purchase of land to be made subject to the settlement, or out of investments representing such money, or out of income of any such money or investments, or out of any accumulations of income of land, money, or investments, or by means of a sale of part of the settled land in respect whereof the costs, charges, or expenses are incurred, or of other settled land

55° VICTORIA, No. 10.

Settled Land Act.

comprised in the same settlement and subject to the same limita- tions, or by means of a mortgage of the settled land or any part thereof, to be made by such person as the Court directs, and either by conveyance of the fee-simple or other estate or interest the subject of the settlement, or by creation of a term, or otherwise, or by means of a charge on the settled land or any part thereof, or partly in one of those modes and partly in another or others, or in any such other mode as the Court thinks fit.

PART VI.—TRUSTEES—SECURITY—INDEMNITY, &C.

45.       .) IF, at any time, there are no trustees of a settlement

trustees by Court.within the definition of this Act, or where in any other case it is

Appointment of

45 and 46 Vie., e. 38, expedient, for the purposes of thisAct, that new trustees of a settle-

s. 33. ment should be appointed, the Court may, if it thinks fit, on the application of the tenant for life or of any other person having, under the settlement, an estate or interest in the settled land, in possession, remainder, or otherwise, or, in the case of an infant, on the applica- tion of his testamentary or other guardian, or next friend, appoint a fit person or fit persons to be trustees under the settlement for the purposes of this Act.

(2.) The person or persons so appointed, and the survivors or survivor of them, while continuing to be trustees or trustee and, until the appointment of new trustees, the personal representatives or re- presentative for the time being of the last surviving or continuing trustee, shall, for the purposes of this Act, become and be the trustees or trustee of the settlement.

46.      (/ .) NOTWITHSTANDING anything in this Act, capital

Number of trustees

to act.

money arising under this Act shall not be paid to fewer than two

45 and 46 Vic., c. 38,

persons as trustees of a settlement, unless the settlement authorises

s. 39.

the receipt of capital trust money of the settlement by one trustee or

by order of the Court.

(2.) Subject to the settlement, the provisions of this Act referring to the trustees of a settlement apply to the surviving or continuing trustees or trustee of the settlement for the time being.

THE receipt in writing of the trustees of a settlement, or personal representatives or representative of the last surviving or continuing trustee, for any money or securities, paid or transferred to the trustees, trustee, representatives, or representative, as the case may be, effectually discharges the payer or transferrer therefrom, and from being bound to see to the application or

47.

Trustees' receipts.

where one trustee is empowered to act, of one trustee, or of the

s. 40.

45 and 40 Vic., e. 38,

beina answerable for

any loss or misapplication thereof, and, in case of a mortgagee or

b

550 VICTORIIE, No. 10.

Settled Land Act.

other person advancing money, from being concerned to see that any mondy advanced by him is wanted for any purpose of this Act, or that no more than is wanted is raised.

49.

EACH person who is, for the time being, trustee of a settle-

Ptotection of each

went is answerable only for what he actually receives, notwith- trustee individually.

standing his signing any receipt for conformity, and in respect of '15 and 46 Vie, e. 38:

his own acts, receipts, and defaults only, and is not answerable in

respect of those of any other trustee, or of any banker, broker, or

other person, or for the insufficiency or deficiency of any securities,

or for any loss not happening through his own wilful default.

49. THE trustees of a settlement, or any of them, are not liable

Protection of

for giving any consent, or for not making, bringing, taking, or doing trustees generally.

any such application, action, proceeding, or thing, as they might 454'yond 46

s

e. 38,

make, bring, take, or do ; and in case of purchase of land with capital money arising under this Act, or of an exchange, partition, or lease, are not liable for adopting any contract made by the tenant for life, or bound to inquire as to the propriety of the purchase, exchange, partition, or lease, or answerable as regards any price, consideration, or fine, and are not liable to see to or answerable for the investigation of the title, or answerable for a conveyance of land, if the conveyance purports to convey the land in the proper mode, or liable in respect of purchase-money paid by them by' direction of the tenant for life to any person joining in the conveyance as a conveying party, or as giving a receipt for the purchase-money, or in any other character, or in respect of any other money paid by them by direction of the tenant for life on the purchase, exchange, partition, or lease.

THE trustees of a settlement may reimburse themselves or pay and discharge out of the trust property all expenses properly Trustees' reimburse-

ment.

incurred by them.

45 and 46 Vic., e. 38,

s. 43.

50.

THE Court or a judge may, by order, authorise the trustees of a settlement to retain for their own use out of the income of the

Commission to

trustees.

trust property, or in case of a sale by the trustees out of the proceeds of the trust property, a reasonable sum by way of commission for their pains and trouble in the management or sale of the property ; but no such commission shall be allowed at a higher rate than five

pounds per centum of the income or proceeds.

An order under this section may be made upon summons or petition, or, if the settlement is a will and the executors are also the trustees of the settlement, upon an application to pass the accounts of the executors.

51.

55' VICTORI}E, No. 10.

Settled Land Act.

PART VII.—MISCELLANEOUS PROVISIONS.

Powers not assign.

52. '(l.) THE powers, under this Act, of a tenant for life are not

to exercise powers

able ; contract not

capable of assignment or release, and do not pass to a person as being,

void.

by operation of law or otherwise, an assignee of a tenant for life, and

45 and 46 Vie., e. 38,

remain exercisable by the tenant for life after and notwithstanding

s. 50.

any assignment, by operation of law or otherwise, of his estate or

interest under the settlement.

(2.) A contract by a tenant for life not to exercise any of his powers under this Act is void.

(3.) But this section shall operate without prejudice to the rights of any person being an assignee for value of the estate or interest of the tenant for life ; and in that case the assignee's rights shall not be affected without his consent, except that, unless the assignee is actually in possession of the settled land or part thereof, his consent shall not be requisite for the making of leases thereof by the tenant for life, provided that the leases are made at the best rent that can reasonably be obtained, without fine, and are in other respects in conformity with this Act.

(4.) This section extends to assignments made or coming into operation before or after and to acts done before or after the com- mencement of this Act ; and in this section " assignment " includes assignment by way of mortgage, and any partial or qualified assign- ment, and ally charge or encumbrance; and "assignee" has a meaning corresponding with that of assignment.

Prohibition or

53. .) IF in a settlement, will, assurance, or other instrument

limitation against

executed or made before or after, or partly before and partly after,

exercise of powers,

void.

the commencement of this Act a provision is inserted purporting

45 and 46 Vic., c. 38,

or attempting, by way of direction, declaration, or otherwise, to

5. 51.

forbid a tenant for life to exercise any power under this Act, or attempting, or tending, or intended, by a limitation, gift, or clis- position over of settled land, or by a limitation, gift, or disposition of other real or any personal property, or by the imposition of any condition, or by forfeiture, or in any other manner whatever, to pro- hibit or prevent him from exercising, or to induce him to abstain from exercising, or to put him into a position inconsistent with his exercising, any power under this Act, that provision, as far as it purports, or attempts, or tends, or is intended to have, or would or might have, the operation aforesaid, shall be deemed to be void.

(2.) For the purposes of this section an estate or interest limited to continue so long only as a person abstains from exercising ally power shall be and take effect as an estate or interest to continue for the period for which it would continue if that person were to abstain from exercising the power, discharged from liability to deter- mination or cesser by or on his exercising the same.

55° VICTOBLZE, No. 10.

Settled Land Act

54. NOTWITHSTANDING anything in a settlement, the

Provision against

exercise by the tenant for life of any power under this Act shall not

forfeiture.

45 and 46 Vic., c. 38,

occasion a forfeiture.

s. 52.

55. A TENANT for life shall, in exercising any power under the

Tenant for life

Act, have regard to the interests of all parties entitled under this

trustee for all parties

settlement, and shall, in relation to the exercise thereof by him, be

45 and 45 Vie., e. 38,interested.

deemed to be in the position and to have the duties and liabilities of

s. 53.

a trustee for those parties.

56. ON a sale, exchange, partition, lease, mortgage, or charge,

General protection

a purchaser, lessee, mortgagee, or other person dealing in good faith

of purchasers, &c.

with a tenant for life shall, as against all parties entitled under the

45 and 46 Vie., c. 38,

s. 54.

settlement, be conclusively taken to have given the best price, con- sideration, or rent, as the case may require, that could reasonably be obtained by the tenant for life, and to have complied with all the requisitions of this Act.

57. (1.) POWERS and authorities conferred by this Act on a

Exorcise of power,

tenant for life or trustees or the Court may be exercised from time to

limitation of pro-

visions, die.

time.

45 and 46 Vie., c. 36,

(2.) Where a power of sale, exchange, partition, leasing, mortgaging, charging, or other power is exercised by a tenant for life, or by the trustees of a settlement, he and they may respectively execute, make, and do all deeds, instruments, and things necessary or proper in that behalf.

s. 55.

(3.) Where any provision in this Act refers to sale, purchase, exchange, partition, leasing, or other dealing, or to any power, consent, payment, receipt, deed, assurance, contract, expenses, act, or transaction, the same shall be construed to extend only (unless it is otherwise expressed) to sales, purchases, exchanges, partitions, leasings, dealings, powers. consents, payments, receipts, deeds, assurances, contracts, expenses, acts, and transactions under tins Act.

58. (1.) NOTHING in this Act shall take away, abridge, or pre-

judicially affect any power for the time being subsisting under a

powers.

Saving for other

settlement, or by statute or otherwise, exercisable by a tenant

45 and 46 Vic., e. 38,

for life, or by trustees with his consent, or on his request, or by his

s. 56.

direction, or otherwise ; and the powers given by this Act are

cumulative.

(2.) But, in case of conflict between the provisions of a settle- ment and the provisions of this Act, relative to any matter in respect whereof the tenant for life exercises or contracts or intends to exercise any power under this Act, the provisions of this Act shall prevail ; and, accordingly, notwithstanding anything in the settlement, the

55" VICTOPIIIE, No. 10.

Settled Land Act.

consent of the tenant for life shall, by virtue of this Act, be necessary to the exercise by the trustees of the settlement or other person of any power conferred by the settlement exercisable for any purpose provided for in this Act.

(3 .)

If a question arises, or a doubt is entertained, respecting

any matter within this section, the Court may, on the application of the trustees of the settlement, or of the tenant for life, or of any other person interested, give its decision, opinion, advice, or direction thereon.

Additional or

59. (I.) NOTHING in this Act shall preclude a settlor from con-

larger powers by

ferring on the tenant for life, or the trustees of the settlement,

settlement.

any powers additional to or larger than those conferred by this

45 and 40 Vic., c.

s. 57.

38'

Act •

(2.) Any additional or larger powers so conferred shall, as far as may be, notwithstanding anything in this Act, operate and be exercisable in the like manner, and with all the like incidents, effects, and consequences, as if they were conferred by this Act, unless a contrary intention is expressed in the settlement.

60.      WHERE, under a settlement, money is in the hands of

Application of

money in hands of

trustees, and is liable to be laid out in the purchase of land to be made

trustees under

subject to the settlement, then, in addition to such powers of dealing

powers of settlement.

45 and 40 Vie., e. 38,

therewith as the trustees have independently of this Act, they may,

s. 33.

at the option of the tenant for life, invest or apply the same as capital

money arising under this Act.

61.      WHERE capital money arising under this Act is purchase

Application of

money paid for

money paid in respect of a lease for years, or life, or years deter-

lease or reversion.

minable on life, or in respect of any other estate or interest in land

45 and 46 Vic., c.

s.

less than the fee-simple, or in respect of a reversion dependent on any such lease, estate, or interest, the trustees of the settlement or the Court, as the case may be, and in the case of the Court on the application of any party interested in that money, may, notwith- standing anything in this Act, require and cause the same to be laid out, invested, accumulated, and paid in such manner as, in the judgment of the trustees or of the Court, as the case may be, will give to the parties interested in that money the like benefit there- from as they might lawfully have had from the lease, estate, interest, or reversion in respect whereof the money was paid, or as near thereto as may be.

Cutting and sale of

62.      (I .) WHERE a tenant for life is impeachable for waste in

timber, and part of

respect of timber, and there is on the settled land timber ripe and

proceeds to be set

fit for cutting, the tenant for life, on obtaining the consent of the

aside.

45 and 46 Vic., c. 38,

trustees of the settlement or an order of the Court, may cut and sell

s. 35.

that timber, or any part thereof.

55° VICTORLIE, No. 10.

Settled Land Act.

(2.) Three-fourth parts of the net proceeds of the sale shall

be set aside as and be capital money arising under this Act, and the

other fourth part shall go as rents and profits.

63. THE Court may, if it thinks fit, approve of any action,

Proceedings for pro-

defence, petition to Parliament, parliamentary opposition, or other

tection or recovery

of land settled or

proceeding taken or proposed to be taken for protection of settled

claimed as settled,

land, or of any action or proceeding taken or proposed to be taken

45 and 46 Vic., e.38,

s. 36.

for recovery of land being or alleged to be subject to a settlement, and may direct that any costs, charges, or expenses incurred or to be incurred in relation thereto, or any part thereof, be paid out of property subject to the settlement.

(l.) WHERE personal chattels are settled on trust so as to devolve with land until a tenant in tail by purchase is born or 45 111

Hehl m

64.

. 1?)

:168.Vie., c. 35,

attains the age of twenty-one years, or so as otherwise to vest in s. 37.

some person becoming entitled to an estate of freehold of inherit-

ance in the land, a tenant for life of the land may sell the chattels

or any of them.

(2.) The money arising by the sale shall be capital money arising under this Act, and shall be paid, invested, or applied and otherwise dealt with in like manner in all respects as by this Act directed with respect to other capital money arising under this Act, or may be invested in the purchase of other chattels of the same or any other nature, which, when purchased, shall be settled and held on the same trusts, and shall devolve in the same manner as the chattels sold.

bp A sale or purchase of chattels under this section shall not be made without an order of the Court.

65.

PAYMENT of money into Court effectually exonerates Payment into Court

45 and 46 Vic., e. 35,

therefrom the person ma t)

kinu the payment.

.

s. 95 (1).

PART VIII.—SETTLEMENTS BY WAY OF TRUST FOR SALE.

(l.) ANY land, or any estate or interest in land, which under or by virtue of any deed, will, or agreement, covenant to

Provision for ease of

trust to sell and re-

surrender, Act of Parliament, or other instrument or any number

45 and 46 Vie., e.35,invest in land.

of instruments, whether made or passed before or after, or partly

s. GS.

before and partly after, the commencement of this Act, is subject to a trust or direction for sale of that land, estate, or interest, and for the application or disposal of the money to arise from the sale, or the income of that money, or the income of the land until sale, or any part of that money or income, for the benefit of any person for his life, or any other limited period, or for the benefit of two or more persons concurrently for any limited period, and whether

66.

55° VICTORIZE, No. 10.

Settled Land Act.

absolutely, or subject to a trust for accumulation of income for pay- ment of debts or other purpose, or to any other restriction, shall be deemed to be settled land, and the instrument or instruments under which the trust arises shall be deemed to be a settlement ; and the person for the time being beneficially entitled to the income of the land, estate, or interest aforesaid until sale, whether absolutely or subject as aforesaid, shall be deemed to be tenant for life thereof ; or if two or more persons are so entitled concurrently, then those persons shall be deemed to constitute together the tenant for life thereof ; and the persons, if any, who are for the time being under the settlement trustees for sale of the settled land, or having power of consent to, or approval of, or control over the sale, or if under the settlement there are no such trustees, then the persons, if any, for the time being, who are by the settlement declared to be trustees thereof for the purposes of this Act, are for the purposes of this Act the trustees .of the settlement.

(2.) In every such case the provisions of this Act referring to a tenant for life, and to a settlement, and to settled land, shall extend to the person or persons aforesaid, and to the instrument or instru- ments under which his or their estate or interest arises, and to the land therein comprised, subject and except as in this section provided, that is to say :-

(a.) Any reference in this Act to the predecessors or succes- sors in title of the tenant for life, or to the remainder- men, or reversioners or other persons interested in the settled land, shall be deemed to refer to the persons interested in succession or otherwise in the money to arise from sale of the land, or the income of that money, or the income of the land, until sale (as the case may require);

(b.) Capital money arising under this Act from the settled land shall not be applied in the purchase of land unless such application is authorised by the settlement in the case of capital money arising thereunder from sales or other dispositions of the settled land, but may, in addition to any other mode of application authorised by this Act, be applied in any mode in which capital money arising under the settlement from any such sale or other disposition is applicable thereunder, subject to any consent required or direction given by the settlement with respect to the application of trust money of the settlement ;

(c.) Capital money arising under this Act from the settled

land and the securities in which the same is invested,

shall not for the purpose of disposition, transmission,

55° VICTORLE, No. 10.

Settled Land Act.

or devolution, be considered as land unless the same would, if arising under the settlement from a sale or disposition of the settled land, have been so considered, and the same shall be held in trust for and shall go to the same persons successively in the same manner, and for and on the same estates, interests, and trusts as the same would have gone and been held if arising under the settlement from a sale or disposition of the settled land, and the income of such capital money and securities shall be paid or applied accordingly ;

(d.) Land of whatever tenure acquired under this Act by purchase, or in exchange, or on partition, shall be conveyed to and vested in the trustees of the settle- ment, on the trusts, and subject to the powers and provisions which, under the settlement or by reason of the exercise of any power of appointment or charg- ing therein contained, are subsisting with respect to the settled land, or would be so subsisting if the same had not been sold, or as near thereto as circumstances permit, but so as not to increase or multiply charges or powers of charging.

IN the case of a settlement within the meaning of the last preceding section, any consent not required by the terms of the As to consents of

tenants for life.

67.

settlement is not by force of anything contained in this Act to be 47 and 48 vie., c. 18,

deemed necessary to enable the trustees of the settlement or any 5. 6 CO'

other person to execute any of the trusts or powers created by the

settlement.

WITH respect to the powers conferred by the last preced- ing section but one the following provisions shall have effect

Powers given by

s. 67 to be exercised

68.

(a.)

Those powers are not to be exercised without the leave of the Court ;

only with leave of

Court.

47 and 48 Vic., e.15,

s. 7.

(b.)

The Court may, by order, in any case in which it thinks fit, give leave to exercise all or any of those powers, and the order is to name the person or persons to whom leave is given;

(c.)

The Court may from time to time rescind, or vary, any order made under this section, or may make any new or further order ;

(d.)

So long as an order under this section is in force, neither the trustees of the settlement, nor any other person other than the person having the leave, shall execute any trust or power created by the settlement, for any

55° VICTORIX, No. 10.

Settled Land Act

purpose for which leave is by the order given to

exercise a power conferred by this Act;

(e.)

An order under this section may be registered in the office of the Registrar of Titles;

(f.)

Any person dealing with the trustees from time to time, or with any other person acting under the trusts or powers of the settlement, is not to be affected by an order under this section, unless and until the order is duly registered;

(g.)

An application to the Court under this section may be made by the tenant for life, or by the persons or one or more of the persons who together constitute the tenant for life, within the meaning of the last preced- ing section but one ;

(h.)

An application to rescind or vary an order, or to make any new or further order under this section may be made also by the trustees of the settlement, or by any person beneficially interested under the settlement ;

(i.)

The person or persons to whom leave is given by an order under this section shall be deemed the proper person or persons to exercise the powers conferred by the last preceding section but one, and shall have and may exercise those powers accordingly;

(j.)

This section is not to affect any dealing which has taken place before the passing of this Act under any trust or power to which this section applies.

PART IX.—APPLICATION OF ACT TO LAND HELD UNDER "THE

TRANSFER OF LAND ACT, 1874."

69. IN the application of this Act to settled land held under

Application of Act

the provisions of " The Transfer of Land Act, 1874," the following

to land held under

"The Transfer of

provisions shall have effect :-

Land Act, 1874."

(l.) If any person or persons is or are the registered pro- prietor or the registered proprietors of the land for an estate in fee-simple in possession, such person or per- sons shall be deemed to be the trustee or trustees of the settlement;

(2.) Where under this Act any power or authority is con-

ferred upon a tenant for life, then upon the written

55° VICTORIA, No. 10.

Settled Land Act.

request of the tenant for life, and upon the perform- ance by the tenant for life of the conditions imposed by this Act upon the exercise of such a power or authority by a tenant for life, the registered proprie- tor or registered proprietors shall have and shall and may exercise that power or authority ;

(3.) Where under this Act any instrument is to be executed by a tenant for life in order to the exercise of any such power or authority, that instrument shall be executed by the registered proprietor or registered proprietors, and such execution shall have the same operation as the execution of such an instrument by a tenant for life is declared to have under this Act ;

(4.) A registered proprietor or registered proprietors execut- ing a power or authority in accordance with the provisions of this Act upon the written request of the tenant for life, or with the sanction of the Court if, being the tenant or the tenants for life, he is himself or they are themselves the sole trustee or trustees of the settlement, shall not by reason thereof incur any per- sonal liability to his or their beneficiaries or to any other person, and no such registered proprietor or registered proprietors shall, for the purpose of execut- ing any such power or authority or complying with any such request, be bound to enter into any personal covenant or contract ;

(s.) Where under this Act it is provided that land shall be conveyed to any uses or trusts, that expression shall be taken to mean that the land shall be transferred to trustees, and shall be held by them as trustees upon such uses or trusts;

(6.) Where under this Act it is provided that a contract made by a tenant for life shall be binding on the settled land, that expression shall be taken also to mean that the contract shall be binding on the registered pro- prietor, and that he shall be bound to give effect thereto in the same manner as if he had made it himself, subject, however, to the provisions of this Act ;

(v.) The term "Deed" shall include any instrument executed in pursuance of the provisions of " The Ransfer of

Land Act, 1874."

55° VICTORI/E, No. 10.

Settled Land Act.

rPeorir ssotneiseddeiallrionprg tiewith person dealing with a registered proprietor of land held under the

70. NOTHING herein contained shall be taken to require any

not bound to inquire. provisions of the said last-mentioned Act to inquire whether all or any of the provisions of this Act have been complied with in respect of the proposed dealing.

In the name and on behalf of the Queen I hereby assent

to this Act.

ALEX. C. ONSLOW, Administrator.

By Authority : RICHARD PETHER, Government Printer, Perth.

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0