Vendor's Answer : The testator's debts cannot be paid until his estates are sold. A devisee of real estates charged with debts had always power to sell the estates and give a discharge for the sale moneys; otherwise the debts could not be paid. But this case appears to be provided for by the 14th section of the Act 22 & 23 Vict. c. 35. The 23rd section of the same Act relieves the purchaser from the responsibility of seeing to the application of the purchasemoney. The vendor is also executrix. 8. The succession duty, which became payable on the death of Richard Appleton, must be paid, and the receipt must be handed to the purchaser. Vendor's Answer : This will be done. 9. The usual searches for incumbrances as against Richard Appleton and Mary Ann Appleton must be made. See General Observation, No. 13, post. 10. Certificate of death and burial of Donald Pringle must be furnished. His devisee of mortgaged estates, Thomas Redfern, must join in the conveyance. Vendor's Answer : The devise of trust and mortgaged estates did not take effect. See Conveyancing Act, 1881, s. 30. The executor Donald James Pringle will join. [Add such of the General Observations and Requisitions, post, as are applicable to this title.] ABSTRACT No. 4. BETTINSON'S TITLE. Observations. This title commences with a covenant to stand seised* to uses by Robert Franklyn, made on the marriage of his son, Edward Franklyn, with Mary Denton. A duly verified certificate of this marriage should be obtained, otherwise it will not appear that the contingent remainders limited by the settlement became vested remainders. The recital of the death of Robert Franklyn in the recovery deed of 4th May, 1817, may be considered as sufficient evidence of that fact. Joseph Bettinson by his will devised his estates to his wife for life, and after her death to Peter Hart and John Thorpe, in fee, upon trust that they or the survivor of them, or the heirs of the survivor, should sell; but there does not appear to be any power of sale in the "assigns" of the surviving trustee; if the power of trust for sale be not given to the "assigns" of the trustees or surviving trustee, Charles Kimber (as the devisee of trust estates in the will of Peter Hart) cannot execute the trust for sale, or make a title to the estate without the concurrence of the parties beneficially interested in the money to arise from the sale; and if the concurrence of the heir-at-law of Joseph Bettinson can be obtained, it will be desirable, or an action must be instituted, and the sale made under a decree of the Court. A certificate of the death of Isabella Bettinson should be furnished, and evidence of her identity. *See Chall. R. P. Ch. XXXI. Receipts for the succession duties which became payable on the deaths of Joseph Bettinson and Isabella Bettinson must be handed to the purchaser, or it must be shown that only legacy duty is payable on the estate. Searches for judgments, &c. must be made as against Joseph Bettinson. [See General Observations and Requisitions, post, and add such of them as are applicable to this title.] ABSTRACT No. 5. DENHAM'S TITLE. Observations. Inquiry must be made whether John Chapman, the vendor in the conveyance of 3rd November, 1826, was married at the date of that conveyance, and if so, whether his then wife or widow be now living; and whether John Chapman be dead, and when he died, and where he was buried. If he be living, or in case he has not been dead 20 years, his wife or widow (if living) is entitled to dower out of the estate (unless barred by settlement or other provision, which must be shown), and must release her dower. It appears from the abstract and pedigree, That Richard Sandall (the testator) died in November, 1853. That Jane Sandall, his widow, is living. Jane Sandall is entitled to dower out of the estate (unless barred by settlement or some other provision, which must be shown), and she must concur in the conveyance to the purchaser to release her dower, or execute a release of dower previously. That Jonathan Sandall (the tenant for life under the will of Richard Sandall) had issue two children only, who both died in his lifetime, under age and unmarried. That Jonathan Sandall died in August, 1860, without leaving any issue him surviving. That Maria Sandall married Benjamin Walton, and had issue only one child, a daughter, Frances Walton. That Maria Walton died in 1856, in the lifetime of Jonathan Sandall, her brother, leaving her daughter, Frances Walton, her surviving. That Frances Walton attained 21 years of age, and died in July, 1858, without issue and unmarried. That Benjamin Walton is living. Under the will of Richard Sandall, Maria Walton became entitled to one moiety of the estate as tenant in tail general in remainder, and she having died in the lifetime of her brother (the tenant for life), her husband Benjamin Walton, did not on her death become seised of her moiety during his life as tenant by the curtesy of England; to complete the right of a husband to curtesy, the wife must have died seised in possession. That Eliza Sandall (who under the will of the testator became entitled to the other moiety of the estate as tenant in tail general in remainder) married Charles Darwin, and had issue one child, Samuel James Darwin, and died in February, 1862. That Charles Darwin and Samuel James Darwin are both living. Eliza Darwin survived her brother Jonathan Sandall, and her sister and niece, who died leaving no issue, and, under the limitation of cross remainders in the will, Eliza Darwin became entitled to the other moiety (making the entirety) of the estate as tenant in tail general in possession, and on her death her husband Charles Darwin became entitled to the entirety during his life as tenant by the curtesy. Under the 22nd section of the Fines and Recoveries Act, Charles Darwin, as tenant by the curtesy, became protector of the settlement created by the will of Richard Sandall, and as Charles Darwin did not (as protector) concur in or consent (conformably to the Act) to the disentailing deed of 9th November, 1863, the effect of that deed was only to bar the estate tail and to create a base fee in Samuel James Darwin, and the remainder in fee over was not ed vide sect. 6 barred. It is stated that Samuel James Darwin is a bachelor; if he dies without issue, and without having converted the base fee into a fee simple by a proper assurance, or when his issue fails, the base fee will determine and the estate will go over and belong to the person entitled to the remainder in fee under the will. 37 & 38 Vict. 57. The conveyance of 29th May, 1864, only passed the base fee. The purchaser cannot accept a base fee. As Charles Darwin and Samuel James Darwin are stated to be both living, the vendor (if the purchase proceeds) must complete his title to the fee simple before the conveyance to the intended purchaser. The vendor must obtain C. |