Re Carne's Settled Estates [1895-99] All E.R. Rep. 357* Also reported [1899] 1 Ch. 324; 68 L.J.Ch.

120; 79 L.T. 542; 47 W.R. 352. England and Wales Chancery Division North J.
Heard: December 20 and 21, 1898. Judgment: December 21, 1898. (2 paras.) Settled Land Tenant for life Person having powers of tenant for life Person having right to occupy land rent free. Settled Land Trustees Persons having power of sale Power to raise money by mortgage or other means. Hereditaments were conveyed to trustees upon trust to permit M. to reside there rent free for as long as she might wish, the trustees being given power to raise money by mortgage of the premises or any other reasonable means. Held: (i) M. had the powers of a tenant for life under the Settled Land Act, 1882; (ii) the trustees were not the trustees for the purposes of the Act. Notes. The Settled Land Acts, 1882 to 1890, have been repealed and replaced by the Settled Land Act, 1925. For the definition of the persons who are, and persons who have the powers of, a tenant for life, see ibid. ss. 19 and 20. For the persons who are the trustees for the purposes of the Act, see ibid. s. 30. Applied: Re Betty; Betty v. A.-G. (1899), 80 L.T. 675; Re Trenchard, Ward v. Trenchard (1900), 16 T.L.R. 525; Re Hanover's Will, Herbert v. Freshfield, [1902] 2 Ch. 679. Referred to: Bacon v. Bacon, [1947] 2 All E.R. 327; Bannister v. Bannister, [1948] 2 All E.R. 133. As to who are the tenant for life and the trustees for the purposes of the Settled Land Acts, see 34 HALSBURY'S LAWS (3rd Edn.) 516 et seq.; and 510 et seq. respectively, and for cases see 40 DIGEST (Repl.) 800. For the Settled Land Act, 1925, Ss. 19, 20 and 30, see 23 HALSBURY'S STATUTES (2nd Edn.) 55, 58 and 82 respectively. [*page358] Case referred to: (1) Re Eastman's Heated Estates, [1898] W.N. 170; 68 L.J.Ch. 122, n.; 43 Sol. Jo. 114; 40 Digest (Repl.) 800, 2799. Also referred to in argument: Re Paget's Settled Estates (1885), 30 Ch.D. 161; 55 L.J.Ch. 42; 53 L.T. 90; 33 W.R. 898; 1 T.L.R. 567; 40 Digest (Repl.) 811, 2906. Re Edwards' Settlement, [1897] 2 Ch. 412; 66 L.J.Ch. 658; 76 L.T. 774; 40 Digest (Repl.) 800, 2800. Summons to determine whether under the provisions of an indenture (i) Mary S.S. Carne was tenant for life under the Settled Land Acts of the St. Donats estate, which she was entitled to occupy for life, and (ii) whether the trustees of the indenture were trustees for the purposes of the Settled Land Acts. By an indenture of voluntary settlement dated Mar. 14, 1890, and expressed to be made between Mansel Sydney Berkrolles Nicholl Carne (thereinafter called Mansel Carne) of the first part, John Devereux Van Loder Nicholl Carne of the second part, and Mary Salisbury Stradling Carne and John Stockwood of the third part, it was witnessed that Mansel Carne conveyed to John D.V.L.N. Carne and his heirs, first - the Castle of St. Donate and the Manor of St. Donats, in the county of Glamorgan, and the rectory and parsonage of the parish church of St. Donate, in the said county, with all the tithes, profits, and appurtenances thereunto belonging, and the advowson of the vicarage of the said church; and, secondly, the several messuages, or tenements, lands and hereditaments, situate in the several parishes of St. Donuts, Llantwit Major, and Marcross, in the said county, which contain by admeasurement 1,132a. 1r. 8p., or thereabouts, to the use and intent that Mary S.S. Carne might thenceforth during her life receive an annual rentcharge of 50 pounds to be issuing out of the said premises, and subject to and charged

with the said annual rentcharge to the use of Mary S. S. Carne and John Stockwood, their executors, administrators, or assigns, for the term of 1,000 years from the date of the said indenture upon the trusts thereinafter declared concerning the same, and from and after the determination of the said term, and in the meantime subject thereto and to the trusts thereof to the use of John D.V.L. Carne, his heirs, and assigns. It was by the indenture agreed and declared that Mary S.S. Carne and John Stockwood, their executors, administrators, and assigns, should stand possessed of the premises, comprised in the term of 1,000 years upon trust in the first place to allow Mary S.S. Carne to occupy St. Donate Castle aforesaid, with the pleasure grounds, gardens, stable, coach-houses, and appurtenances thereunto belonging, and also six fields on the said St. Donate estate rent free for so long as she might wish to continue to do so, and upon further trust out of the rents and profits of the said premises, or by any other reasonable ways and means, to raise and pay the succession duty therein mentioned, and also upon trust by mortgage of the said premises or out of the rents and profits thereof, or by any other reasonable ways and means, to raise and pay the principal sum of 680 pounds therein mentioned and all interest thereon, and upon further trust by the ways and means aforesaid and at such time or times as the trustees should think fit to raise the sum of 40,000 pounds, and to apply the same in discharge of a mortgage debt therein mentioned to the extent that the hereditaments subject thereto should be discharged therefrom. The indenture contained a covenant by Mansel Carne to permit M.S.S. Carne so long as she chose to live at St. Donats Castle, to use and enjoy all the plate, furniture, and effects, in and about or belonging to St. Donate Castle, and the stables, coach-houses, outbuildings and pleasure grounds thereto, and if after the death of Mary S.S. Carne, or of her ceasing to live at St. Donats Castle, John D.V.L.N. Carne should choose to live there to permit him while living there to enjoy the plate, furniture, and effects, but so that neither of them should be at liberty to remove the same or any part thereof therefrom. [*page359] Mary S.S. Carne entered into possession of the St. Donats Castle, with the gardens and fields belonging thereto, and was still in possession thereof. The present trustees of the indenture were Mary S.S. Carne and Matthew Peake. Various questions arose with respect to the rights of Mary S.S. Carne and John D.V.L.N. Carne, under the above stated indenture, and on April 6, 1898, an action was commenced by the trustees against John D.V.L.N. Carne, for the determination of the above questions. H. Terrell, Q.C., and Cann for the plaintiffs. Vernon Smith, Q.C., and James G. Wood for the defendant. 1 NORTH J.: I do not see how to distinguish this case from Re Eastman's Settled Estates (1), before ROMER, J. I think that a gift of such an interest as this is a gift of an estate for life determinable by a conditional limitation. I do not think the question is whether any estate is given. [HIS LORDSHIP then referred to a passage in COKE UPON LITTLETON, 42a, respecting conditions annexed to estates, and also to BURTON ON REAL PROPERTY (7th Edn.), p. 236, where it is stated "a condition at common law may be annexed to an estate for life as well as to a fee simple," and continued:] As tenant for life Mrs. Carne has the power of selling the property of which she is tenant for life. With respect to the question whether that is what was intended by the settler, when the power of sale and other powers were conferred on tenants far life by the Settled Land Act, 1882, it was considered that the benefits to be derived from the exercise by them of these powers exceeded the possible disadvantage of their defeating the intentions of settlers. I will refer the matter to chambers for the appointment of trustees of the settlement for the purposes of the Settled Land Acts. 2 There will be a declaration that Mrs. Carne is tenant for life within the meaning of the Settled Land Acts; and the court being of opinion that the plaintiffs are not trustees for the purposes of the Settled Land Acts, refer the matter to chambers to appoint such trustees. Solicitors: George Terrell; Field, Roscoe & Co., for Wm. & Hy. Lewis, Cardiff.