the provisions (ss. 26, 27) for excluding lessees at a rent, dowresses, bare trustees, heirs, executors, administrators, and assigns, shall stand so excluded, the protectorship devolves upon the person, who, if the estate ordinarily conferring the privilege did not exist, would be the protector (s. 28). Thus, lands are settled upon A. for life, with power to lease for lives or for years determinable on lives, with remainder in tail, with remainder over; A. leases under the power to B. for life, or for ninetynine years determinable on life, reserving rent ;-here, according to the principles on which appointments operate (n), the estate of B. inserts itself in the settlement prior to the estate of A.; but the protectorship is, by this clause, denied to B., and conferred on A. Care must be taken not to confound cases in which the prior estate, conferring the protectorship, has merely passed from the original owner to an assignee, (of which an example is given in a previous paragraph (0)), with cases falling under this provision; for though the assignee would be excluded by one (s. 27) of the enactments to which this provision refers, yet the original owner would continue to be protector. But if lands were limited to A. for the life of B., remainder to C. for life, remainder to D. in tail, remainder over, and A. should die, or alien and die, living B. and C., then, as the representative or alienee of A. would be excluded, the office would be cast upon C.; but if C. were dead, then, though B. were living, the remainder over would cease to be protected, and D. might bar it at pleasure (p). Where the first estate is limited beneficially to A. and his heirs for the life of B., and A. dies, living B., it is clear that the office must either pass on to the owner of the next prior estate, or cease; but (n) Vide post, Vol. 2, n. to Prec. No. 15. (0) Ante, 170. (p) See 2 Sugd. V. & P. 10th ed. 295, 296. CHAPTER V. estate, and the clusion of the case of the ex first taker. Certain cases of a prior estate pur auter vie considered. CHAPTER V. Provision for the case of a married woman; -for cases of incapacity. it is not so clear, perhaps, how the act would operate if the estate of A. were a legal estate, limited to him in trust for B.-whether the equitable estate of B., emanating from the legal estate of A., (who, as a bare trustee, is excluded (s. 27)), can be considered as the next prior estate, for the purpose of conferring the office. The conclusion drawn (g), and, it should seem, correctly drawn, is, that A., the equitable owner, takes the office, in substitution of the legal tenant, not, however, under this section, but by the result of the previous general enactment (ss. 22, 27). In fact, the legal estate of A., and the equitable estate of B., are not several prior estates, within the meaning of the provision which institutes the office of protector (s. 22), as controlled by the excluding provision (s. 27), for the latter provision strikes A., the bare trustee, out of the case, and consequently strikes the case itself out of the section (s. 28) under consideration. Where the estate conferring the protectorship is limited to a married woman, the husband and wife are jointly protectors, as one owner, unless the estate be settled to the separate use of the wife, in which case she is sole protector (s. 24). Cases may occur in which, either the office of protector is vacant, although a prior estate adequate to constitute a protector is subsisting, or the protector is rendered incompetent to exercise his functions. Such cases are provided for (ss. 33, 48) by vesting the office in the Lord Chancellor, or the Lord Keeper or Commissioners of the Great Seal, or other person or persons intrusted with the care of lunatics, where the protector is a lunatic (r); and in the Court of Chancery, where the protector is convicted of treason or felony, or, not being the owner (q) 2 Sugd. V. & P. 10th ed. 295. ants in tail, see In re Starkie, 3 Mylne & K. 247. of a prior estate, is an infant, or it is not known whether he be living or dead; and where the settlor declares that the person who, as owner of a prior estate, would be protector, shall not be protector (s. 33), and does not appoint a protector (s. 32); and where, from any other cause, there shall, notwithstanding the existence of a prior estate sufficient to constitute a protector, be no protector. As to the principles by which the public functionary is to be guided in the exercise of his power of consenting, the act is silent; but it may be collected from the decisions on applications to the Lord Chancellor in the case of lunatic protectors (s), that the power should be exercised with a view rather to support and carry out the intention of the settlement, as by resettling the estate on the marriage of a son, than to disappoint any of its objects, much less to defeat its main purpose by simply facilitating alienation. The attention of the Lord Chancellor does not appear to have been directed to the analogous cases (t) in which equity has assumed a discretionary power of directing trustees to destroy contingent remainders, and which might, it is conceived, have been cited as furnishing the general principles. In short, the judge represents the head of the family, and is bound to consider what a due regard for its interests, viewed in connexion with the apparent design of the settlement, requires or forbids. From the delicate duty just adverted to, the judicature may, however, be relieved, for the act enables (s. 32) the settlor, not only to appoint any person or persons in esse, (exclusive of aliens), not exceeding three, whether (8) Grant v. Yea, 3 Mylne & K. 245; In re Blewitt, Id. 250; In re Newman, 2 Mylne & C. 112. (t) Frewin v. Charlton, 1 Eq. Ab. 386; Winnington v. Foley, 1 P. Wms. 536; Townsend v. CHAPTER V. Power to aptor or protec point a protec tors. CHAPTER V. Certain cases in taking an interest under the settlement or not, to the office of protector, but also, by means of a power, to be inserted in the settlement, of nominating to vacancies, to continue the protectorship in any person or persons in esse, not exceeding three, for the whole or any part of the period for which the office would have endured by force of the limitation. The person who, in respect of the prior estate, would ordinarily be the sole protector, may be appointed one of the special protectors, and, if so appointed, will, unless there be a direction to the contrary, continue protector, after the death or resignation (by deed) of the rest, until further appointment. It is presumed that the words in esse, where they first occur, are to be taken with reference to the execution of the settlement, and, where they last occur, to the period of nomination. From tenderness to vested rights, the protectorship is tectorship has qualified by a saving of the old law in the following specified cases. respect to the old law; -where the freehold has been disposed of before a given date. 1. Where, on or before the 31st December, 1833, an estate under a settlement shall have been disposed of, the person who, in respect of such estate, would have been the person to make a tenant to the præcipe, for suffering a common recovery of the lands entailed by such settlement, is, during the continuance of the estate, to be the protector (s. 29). The effect of this section, which contemplates a case of very frequent occurrence in practice, cannot be precisely collected without attentively considering it in connexion with the twenty-seventh and thirty-first sections. The first observation which arises upon it is, that its operation is confined in terms to the case of an estate created by the same instrument which creates the estate tail; so that, in the case of a conveyance to A. for life, followed by a settlement of the rever sion on B. in tail, and by an alienation by A., on or before the 31st of December, 1833, of his life estate to C., though C. would have been the person to make the tenant, he would not be the protector. This appears to be consistent with the plan of the act, which contains no provision under which A., if he had retained his estate, would be the protector. The proposition (u) that, in respect of settlements prior to the 1st of January, 1834, the act requires the concurrence of the same person, as protector, who would have been a necessary party for making a tenant to the præcipe, must not, therefore, be taken without considerable qualification. But if the estate for life and the estate tail were created by the same settlement, then C. would be the protector. CHAPTER V. in tail; Under the old system, it often happened that a tenant by a tenant in tail aliened without effectually barring the entail and remainders, and that he, or the issue in tail, afterwards consented to perfect the title by a recovery. In these cases, it was generally necessary that the alienee, as having the legal freehold, should join in making the tenant. It should seem (for the words "estate under a settlement," are not, perhaps, free from ambiguity (x)) that the (u) Coote's Law of Mortgage, 2nd ed. 240; and see 9 Jarm. Convey. 409, n. (x) This point arose in Corrall v. Cattell, 4 Mee. & Wels. 734, (and see Cattell v. Corrall, 3 Y. & C. 413), where A., tenant in tail, conveyed in 1817 to B. for the life of A., upon certain trusts. The decision turned upon another point, (which is now before the House of Lords), but the impression of the Court seemed to be that B. was not protector. Of five counsel whose opinions were |