CHAPTER IV.

The Acts of 11 Geo. 4 & 1 Will. 4, c. 40, the 11 Geo. 4 & 1 Will. 4, c. 46, the 11 Geo. 4 & 1 Will. 4, c. 47, the 11 Geo. 4 & 1 Will. 4, c. 60, the 4 & 5 Will.4, c. 23, the 1 & 2 Vict. c. 69, and the 11 Geo. 4 & 1 Will. 4, c. 65(a).

Undisposed of Residues.

As to the 11 Geo. 4 & 1 Will. 4, c. 40, intituled, "An Act for making better Provision for the Disposal of Undisposed of Residues of the Effects of Testators."

At law, before the passing of this Act, executors were entitled to the whole residue of

(a) This chapter contains a notice of the Acts usually denominated" Sugden's Acts," and of the Acts passed to explain or extend the provisions of certain parts thereof (except the 11 Geo. 4 & 1 Will. 4, c. 36, and the 2 Will. 4, c. 58, relating to commitment by Courts of equity for contempt and taking bills pro confesso, which have been before set forth). It has been deemed more convenient to arrange them in a great measure chronologically, although in point of importance the 11 Geo. 4, c. 47, and 1 Will. 4, c. 60, might perhaps be considered entitled to prior attention.

their testator's personal property undisposed of by his will; but Courts of equity had determined that executors were only so entitled, in cases where it did not appear to have been their testator's intention to exclude them from the beneficial interest therein. The effect of this Act is to extend the principle thus recognised by Courts of equity, and to make them trustees of such residue for the person or persons (if any) who would be entitled to the testator's personal estate under the statute of distributions, if he had died intestate. It enacts,

September,

cutors to be

trustees of

andisposed of

entitled under

be the Statute of

Distributions,

or unless other

wise directed

Sect. 1. That when any person shall die After the 1st after the 1st of September next after the passing 1830, exe of the Act, having by his or her will, or any deemed codicil or codicils thereto, appointed any person any residue or persons to be his or her executor or exe- for persons cutors, such executor or executors shall deemed by Courts of equity to be a trustee trustees for the person or persons (if any) who by the will. would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will, or any codicil thereto, the person or persons so appointed executor or executors was or were intended to take such residue beneficially.

Sect. 2. But that nothing in the Act shall Not to affect affect or prejudice any right to which any exe- cators where

L

rights of exe

any person entitled to the residue.

there is not cutor, if the Act had not been passed, would have been entitled, in cases where there is not any person who would be entitled to the testator's estate under the Statute of Distributions, in respect of any residue not expressly disposed of.

Sect. 3. That the Act shall not extend to Scotland.

Illusory Appointments.

As to the 11 Geo. 4 & 1 Will. 4, c. 46, intituled "An Act to alter and amend the Law relating to Illusory Appointments."

The object of this Act is to take away the jurisdiction assumed by Courts of equity of declaring void appointments made in exercise of powers where it was conceived the appointment was only illusory. Thus, where a power of appointment was given over a sum of money to a father in favour of his children, and he appointed only a very inconsiderable portion in favour of one or several of such children, Courts of equity considered that such an appointment was not according to the intention of the original donor, and therefore, although good at law, it

was held to be bad in equity. This Act restores the common law to its full force, and declares,

pointments

impeached in

Sect. 1. That no appointment, which after Illusory ap the passing of this Act shall be made in exer- not to be cise of any power or authority to appoint any equity. property, real or personal, amongst several objects, shall be invalid or impeached in equity, on the ground that an unsubstantial, illusory, or nominal share only, shall be thereby appointed to devolve upon any one or more of the objects of such power; but that every such appointment shall be valid and effectual in equity as well as at law, notwithstanding that any one or more of the objects shall not thereunder or in default of such appointment take more than an unsubstantial, illusory, or nominal share of the property subjected to such power.

any deed, &c.

amount of

Sect. 2. But that nothing in the Act shall Not to affect prejudice or affect any provision in any deed, declaring the will, or other instrument creating any such the share; power, which shall declare the amount of the share or shares from which no object of the power shall be excluded.

any other

appointment

Sect. 3. Nor be construed to give any other Nor to give validity, force, or effect to any appointment effect to any than such appointment would have had if a than the substantial share of the property affected by the have had. power had been thereby appointed to or left

same would

unappointed to devolve upon any object of

such power.

Payment of Debts out of Real Estate.

As to the 11 Geo. 4 & 1 Will. 4, c. 47, intituled, "An Act for consolidating and amending the Laws for facilitating the Payment of Debts out of Real Estate."

The principal object of this Act was to extend the relief afforded to creditors against the real estate of their debtors. By the 3 & 4 Will. & M. c. 14, it was enacted, that creditors by bond and specialty might maintain their actions of debt against the heirs and devisees of obligors; and thus the remedy which before that statute enabled creditors to claim payment of their debts out of an estate in fee simple descended to an heir at law, was enlarged so as to give them the same right against a devisee. But that statute was held to apply only to bond debts and covenants for the payment of sums certain, and it did not afford any relief in cases where there happened to be no heir, the right of action given by it being only against the devisee and heir. The present Act removes both these defects, enabling creditors (sect. 3) to recover