Land tenure question

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Ian Goddard

Land tenure question

Legg inn av Ian Goddard » 27 nov 2007 16:48:32

The legal device of a settlement to use was devised to manipulate the
inheritance of property. The property would be gifted to what we would
now call trustees to use of, say, Joe de Bloggs and his heirs male where
the property would not normally descend by that route.

The question is: when Joe de Bloggs dies and the property passes to his
heir male, assuming there is one, do the escheators who would otherwise
become involved get bypassed by the trustees?

--
Ian

Hotmail is for spammers. Real mail address is igoddard
at nildram co uk

Renia

Re: Land tenure question

Legg inn av Renia » 27 nov 2007 17:51:01

Ian Goddard wrote:

The legal device of a settlement to use was devised to manipulate the
inheritance of property. The property would be gifted to what we would
now call trustees to use of, say, Joe de Bloggs and his heirs male where
the property would not normally descend by that route.

The question is: when Joe de Bloggs dies and the property passes to his
heir male, assuming there is one, do the escheators who would otherwise
become involved get bypassed by the trustees?

An escheator was a county officer appointed by the Lord Treasurer to
look into escheats. An escheat was "an obstruction of the course of
descent, by which land naturally resulted back by a kind of reversion to
the orginal grantor or lord of the fee". Escheat was abolished in 1925.

There were two types of property prior to 1926, freehold and not freehold.

Freehold estates were.
1. Estates in fee simple
2. Estates in fee tail, otherwise estates tail or entailed estates
3. Estates for life

An estate in fee simple was and still is an absolute and unqualified
estate of inheritance. At Common Law, in order to create such an estate
it was essential that the word 'heirs' should be used; e.g. 'To Joe de
Bloggs and his heirs'. Since the Law of Property Act 1925, no such words
of limitation are necessary.

An estate for life was an estate someone held for the term of his own
life, including estates held during widowhood.

An estate in fee tail was that which a man had to hold to him and the
heirs of his body, or to him and particular heirs of his body. By the
statue De Domis Conditionalibus, passed in 1285, an estate so limited
devolved, on the death of the donee, on his issue; and, on the failure
of issue, reverted to the donor and his heirs. In the construction of
this statute the Judges held that the donee had an estate which they
called a fee tail. This estate thus assumed the form of a perpetual
entail until the reign of Edward IV, when, in a celebrated case called
'Taltarum's case', it was held by the Judges that an estate tail might
be barred by the collusive and fictitious proceeding called a 'common
recovery, and thus turned in to an estate in fee simple. In the reign of
Henry VIII, the process called a fine was made effectual to enable a
tenant in tail to bar his issue, but not the remainderman or
reversioner. Fines and recoveries were abolished by the Fines and
Recoveries Act 1833. Estates tail of which the reversion was in the
Crown could not be barred so far as regarded the reversion; and estates
tail created by Act of Parliament could not in general be barred. So, a
tenant in tail after possibility of issue extinct could not bar his estate.

A feigned recovery, otherwise called a 'common recovery' was a
proceeding formerly resorted to by tenants in tail for the purpose of
barring their entails, and all remainders and reversions consequent on
them, and making a conveyance in fee simple of the lands held in tail.

Mozley & Whiteley's Law Dictionary, Tenth Edition, ed E.R. Hardy Ivamy

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