-of death of ancestor;

-of death of protector;

-that heir has consented to perform the covenant. TESTATUM.

Tenant in tail bargains and sells.

the said [ancestor] in the said messuage or tenement, hereditaments, and premises, thereby granted or intended so to be, and completing the title of the said [owner of base fee], his heirs or assigns, to the inheritance in fee-simple of and in the same messuage or tenement, hereditaments, and premises, either in possession, or, as the case might be, in remainder immediately expectant on the decease of the said [tenant for life], as by the said [owner of base fee], his heirs or assigns, or his or their counsel in the law, should be reasonably required or advised, and as should be tendered to be done or executed; AND WHEREAS the said [ancestor] died on the

,

in

day of the year leaving the said [heir in tail], his only [or eldest] son and heir in tail surviving him; AND WHEREAS the said [tenant for life] died on or about the day of in the year ; AND WHEREAS the said [heir in tail] has consented specifically to perform the said recited covenant entered into by the said [ancestor]. Now THEREFORE THIS INDENTURE WITNESSETH, that, in consideration of 10s. paid by the said [owner of base fee] to the said [heir in tail] on the execution of these presents, the receipt whereof is hereby acknowledged, The said [heir in tail], in order to defeat all estates, rights, interests, and powers limited to take effect after or in defeasance of the base fee, into which the estate tail of the said [ancestor] was converted by the operation of the said recited indenture, and in order to complete the title of the said [owner of base fee] to the inheritance in fee-simple in possession of the said messuage or tenement, hereditaments, and premises, Hath bargained and sold, and by these presents Doth bargain and sell unto the said [owner of base fee] and his heirs, All the said messuage or tenement, hereditaments, and premises comprised in the said recited indenture; Together with all the rights, members, and appurtenances to the said hereditaments and All estate, &c. premises belonging; And all the estate, right, title, and interest of the said [heir in tail] in or to the said hereditaments and premises: TO HAVE AND TO HOLD the said messuage or tenement, hereditaments, and premises, hereby bargained and -to purchaser sold, or intended so to be, with their appurtenances, unto and to the use of the said [owner of base fee], his heirs and assigns for ever; And the said [heir in tail], for himself, his heirs, executors, and administrators, hereby covenants with the said [owner of base fee], his heirs and assigns, that the said [heir in

Parcels.

HABENDUM,

in fee.

Covenant by heir in tail that he has not incumbered.

tail] has not done or permitted any act, matter, or thing whatsoever, by which, or by means of which, the said messuage or tenement, hereditaments, and premises hereby bargained and sold, or intended so to be, or any part thereof, with their appurtenances, are, is, or may be aliened, incumbered, or prejudicially affected. IN WITNESS &c.

No. 35.

ASSIGNMENT by a Tenant in Tail in remainder, under
a protected Settlement, with the Consent of the Pro-
tector, of an entailed Money Fund.

THIS INDENTURE, made the

in the

year

day of

in the

mother of te

nant in tail;

year of our Lord, BETWEEN [protector], of &c., of the Parties. first part; [tenant in tail], of &c., of the second part; and [assignee], of &c., of the third part. WHEREAS, by indentures RECITALS of lease and release bearing date respectively the and of settlement on marriage of days of the indenture of release the father and made between [father of tenant in tail, and protector of the settlement], of the first part; [mother of tenant in tail], of the second part; [trustees to preserve contingent remainders], of the third part; and [trustees of term], of the fourth part; being a settlement executed in contemplation of the marriage afterwards solemnized between the said [protector] and [mother], divers freehold hereditaments were limited, from and after the solemnization of the said then intended marriage, to the use of the said [protector] for his life, with remainder to the use of the said [trustees to preserve], and their heirs, during the life of the said [protector], upon trust to preserve the contingent remainders thereinafter limited, and after his decease, To the use and intent that the said [mother], if she should survive the said [protector], might, during the remainder of her life, receive out of the rents and profits of the said hereditaments, a yearly rent-charge of £ for her jointure and in bar of dower, with the usual powers of distress and entry for enforcing payment thereof, with remainder to the use of the said [trustees

-containing power of sale and exchange;

-and directing monies arising from sales and exchanges to be

laid out in lands

to be settled to

of term], their executors, administrators, and assigns, for the term of 500 years, to be computed from the day of the date of the now reciting indenture of release, without impeachment of waste, upon the trusts therein declared for securing the said rent-charge, and for raising such gross and annual sums of money as are therein mentioned for the portions and maintenance of the younger children of the said then intended marriage, and from and after the determination of the said term of 500 years, and in the meantime subject thereto, to the use of the first and every other son successively of the said then intended marriage, in tail male, with reversion to the use of the said [protector], his heirs and assigns for ever; And which indenture of release contains a power enabling the said [trustees to preserve], with the consent in writing of the said [protector], to sell or exchange the said hereditaments or any of them, and to receive money for equality of exchange, and also contains a direction to invest the monies to arise from sales, and to be received on exchanges, made under the said power, in the purchase of real estates to be settled to the uses limited by the same indenture concerning the said hereditaments thereby settled, and in the meantime to invest the same money in the name of the said trustees in or upon the public stocks or funds or other government securities, or on real securities in the united kingdom, and also contains a declaration that the dividends, interest, and yearly produce of the stocks, funds, and securities in or upon which such investment should be made, should be paid and applied to the same persons and for the same purposes as the rents and profits of the estates directed to be purchased therewith as aforesaid would, if so purchased, be -that tenant in payable or applicable; AND WHEREAS the said [tenant in son of marriage, tail] is the first son of the said marriage between the said [protector] and the said [mother], now his wife, and attained the age of twenty-one years on the and there are several younger children of such marriage; AND WHEREAS several sales and exchanges have been made in pursuance of the aforesaid power contained in the said recited indenture of release, and the monies received from such sales, and for equality of exchange upon such exchanges, have been invested in the names of the said [trustees], partly in the public stocks or funds and partly on real securi

same uses, and in the meantime to be invested in stock

or on mortgage;

tail is the first

and of age;

-of sales and exchanges, and investment of money.

day of

last,

ties (170), and the investments thereof now consist of the particulars mentioned in the schedule hereunder written; [or, now consist of £ Bank three per cent. consolidated annuities, &c.]. Now THIS INDENTURE WITNESSETH, that, in TESTATUM. order to defeat the estate tail of the said [tenant in tail], by virtue of the said recited indenture of release, in the monies, Object of assur

ance.

(170) The fund applicable to the purchase of land to be entailed may consist either of ready money, or of money invested on securities &c., or of money to arise under a trust for sale impressed on real estate. If it consist of money invested, it matters not what is the nature of the investment. The same form will apply to mortgages, whether for years or in fee, stock, bonds, &c. The assignment operates, not upon the legal interest in the fund or security, but merely upon the equity growing out of the direction to purchase and settle the land, by substituting, for the equitable right to an estate tail in the land, an equitable right to the absolute property in the fund. If the fund consist of unsold real estate, not being copyhold or leasehold for years, then it must be operated upon by one or other of the modes of assurance adapted to unfetter freehold lands; if it consist of unsold real estate being copyhold, the mode prescribed for barring the entail of copyhold lands must be pursued; and if it consist of chattels real, i. e. leasehold for years, an assignment is the appropriate assurance. The assignment, as well in the case of the money as in the case of the leaseholds for years, must be by deed enrolled within six calendar months after the execution. (3 & 4 Will. 4, c. 74, s. 71). These distinctions are attended with some complexity, but probably more objections presented themselves, on considering the subject in all its bearings, than occur upon a cursory view, to the simple course of acting upon the fund, in every case, as if it were equitably converted into lands of freehold tenure, and conveying it under the denomination of "money-land," by an assurance adequate to pass freehold estates. Whether there is or is not a protector of the settlement, the tenant in tail must, in order to unsettle the fund, adopt the same mode of assurance. With respect to a quasi entail of leaseholds for lives, it may still be barred as heretofore by an ordinary deed, (ante, Vol. 1, Chap. v.); and with respect to leaseholds for years destined to attend, so far as the law will permit, the devolution of freeholds in strict settlement, since the absolute vesting cannot, by force of the limitations per se, be postponed beyond a life or lives in being and twenty-one years, (ante, Vol. 1, Illustrations, IV.), no assurance is necessary to defeat the settlement. The act has, of course, no application to these improper entails, (if they may be so termed), which were either destructible by a common conveyance, or incapable from their own nature of exceeding the limit fixed by the rule against perpetuities; leaseholds for lives and for years are contemplated by the section in question only as constituting the fund devoted to the purchase of lands susceptible of a proper entail.

Mode of assur

ance to be
nant in tail of a
adopted by te-
fund, liable to
be invested in

land to be set-
tled.

Estates pur

auter vie and chattels real,

how to be discharged from

settlement.

Tenant in tail

protector, as

signs.

stocks, funds, and securities hereby assigned or intended so to be, and all estates, rights, interests, and powers to take effect after the determination or in defeasance of such estate tail, and to vest the absolute beneficial interest in the said monies, stocks, funds, and securities in the said [tenant in tail], subject to the limitations of the same indenture antecedent to the said estate tail, The said [tenant in tail], with the consent of the with consent of said [protector], as protector of the settlement creating the said estate tail, Hath assigned, and by these presents Doth assign (171) unto the said [assignee], his executors, administrators, and assigns, All the monies which have been received from, or in respect of, such sales and exchanges as aforesaid, and all the stocks, funds, and securities in or upon which the same monies have been invested; And all other the monies which have been received, or have arisen (172), from, or in respect of, any sale or sales, or any exchange or exchanges, made in pursuance of the said power contained in the said recited indenture of release, and all the stocks, funds, and securities in or upon which such monies or any of them have been invested; And also all the right, title, and interest of the said [tenant in tail], in or to the said monies, stocks, funds, and securities hereby assigned or intended so to be: To HAVE AND TO HOLD the said monies, stocks, funds, securities, and premises hereby assigned or intended so to be, unto the said [assignee], his executors, administrators, and assigns, as personal estate, discharged from the said estate tail, and all estates, rights, interests, and powers to take effect after the determination or in

HABENDUM, -to assignee,

as personal estate;

The assign

ment of an entailed fund is purely formal.

The assign

ment of an en

tailed fund inoperative upon a fund to arise in futuro.

(171) In point of fact nothing passes the assignment-no legal interest, for the assignor has a mere equity-no equitable interest, for the assignee is not intended to take beneficially. Indeed, if the assignee were intended to take beneficially, still the assignment would be merely formal, since all dispositions of equitable rights operate by way of contract, and not of conveyance. The act says "an assignment by deed," and the form of assignment commonly adopted in practice for the transfer of personal estate is proper to be observed; but as the term "assignment" is very indefinite, (see 2 Black. Comm. 326), the act seems to admit of considerable latitude in point of form.

(172) The assignment cannot be made to embrace the produce of future sales, &c., of the settled estate; but it may extend to the produce of sales, &c., for which contracts, binding on the persons claiming under the settlement, have been entered into.