Where a lease of the wife's lands is made by the husband, or by husband or wife, without following the provisions of the enabling statute, she may, as before observed, avoid it after her husband's death. But where husband and wife made a lease of the wife's lands by indenture for a term of years rendering rent, and the lessee entered; and the husband dying before the day of payment, the wife took a second husband, and he at the rent-day accepted rent and died: it was holden, that the wife could not avoid the lease, for by her second marriage she transferred her power of avoiding it to her husband; and his acceptance of the rent bound her, as her own before such marriage would have done: for he by the marriage succeeded into the power and place of his wife; and what she might have done, either as to affirming or avoiding such lease before marriage, the same may the husband do after the marriage. (≈) If a widow, who is guardian in socage of her son, marry again, and the husband and she join in a lease of the infant's lands, such lease is voidable upon the husband's death; for she had only an interest in right of the infant; (a) and, therefore, will not be bound by her joining with her husband, as she would have been in the case of her own possessions. (b) III. Besides these persons who have a temporary interest in the lands to be demised, there is another class of persons who, being seised or possessed jure alieno, may make leases for the benefit of others. Leases of lands held by wife as guardian. III. Of leases autre droit. by persons in and admini Executors and administrators have an absolute power over By executors the terms of the testator or intestate, and may either assign strators. or lease them, the rent being assets in their hands. (c) The lease of one executor will be binding upon all the (z) Anon. Dyer. 159. a. pl. 36. and see Whetstone v. Wentworth, reported in a note to this case. (a) Infra. (b) Osborn v. Carden, Plowd. 293. By guardians. others, (d) and if a term be specifically bequeathed to one of several executors for life, with remainder over, and a power of leasing for twenty-one years is given him, and he enters and makes a lease for forty-two years, reserving rent to himself, his executors, and administrators, neither his entry or sole lease reserving rent to himself, will be deemed an assent to his legacy, but the lease will take effect for the forty-two years out of his interest as an executor. (e) But nevertheless, if the will contains a specific bequest of the term, a party should be over cautious in accepting a lease from the executors, as they may have assented to the bequest. When an infant under the age of twenty-one is appointed executor, and a general administration is granted durante minori ætate, such administrator has as much power to make leases, until the executor be of age, as any other administrator. Such leases, however, will not be binding upon the executor when he has attained the age of twenty-one; for he may then enter and avoid the lease for the residue of the term demised. (ƒ) Independent of the authority given to guardian in socage by statute law, (g) he is considered as having himself such an interest in the infant's lands, that he may make leases in his own name which may be confirmed or avoided by the ward upon his coming of age. (h) And a testamentary guardian, or one appointed pursuant to the statute 12 Cha. II. c. 24, has the same office and interest as guardian in socage. (i) But guardian by nurture can make no leases for years Doe dem. Hayes v. Sturges, 7 Taunt. 217. 2 Marsh. 505. Simpson v. Gutteridge, 1 Mad. Ch. Rep. 616. (e) Doe dem. Hayes v. Sturges, supra. (f) Sir Moyle Finch's case, 6 Rep. 68. a. and see Prince's case, 5 Rep. 30. The age was formerly seventeen, but now by stat. 38 Geo. III. c. 87, s. 6, administration is to be granted to the infant executor's guardian until he attain twenty-one. (g) Vide 43 Geo. III., c. 75. 1 Wm. IV. c. 65, et supra, p. 20. (h) Shopland v. Ryoler, Cro. Jac. 55. 98. Brisden v. Hussey, 2 Rol. Abr. 41. 1. 15. (i) Vide Duke of Beaufort v. Berty, 1 P. W. 702. Roe dem. Parry v. Hodgson, 2 Wils. 129. either in his own name or in the infant's; because he has merely the care of the person and education of the infant, and has nothing to do with the lands; and such guardian may exist, though the infant have no lands at all, which guardian in socage cannot. (i) Assignees of bankrupts and insolvents (4) may grant leases under powers limited to the bankrupt or insolvent for the benefit of the estate. Assignees of bankrupts and insolvents. A mere receiver of the estate of an infant cannot make Receivers of leases without the express order of the Court of Chancery. infants' estates. of lunatics. By the statute 1 Wm. IV. c. 6, committees of lunatics are Committees empowered, by direction of the lord chancellor, to accept surrenders and grant new leases, the fine for renewal being first paid, and by the like direction to execute powers of leasing vested in the lunatic and grant building, farming, and other leases of the lunatic's land. (7) charities. Trustees of charities, who have the legal estate for the Trustees of benefit of the charity, have full power to make such leases as may promote its interest. But the Court of Chancery, which has a special jurisdiction over charities, will always see that the lands are properly leased; and that the power of the trustees is not abused by the making of leases prejudicial to the interests of the charity, either by their length or inequality. It is of consequence that trustees should not only act bona fide in the distribution of trust property, but they should be prepared to show satisfactorily to the court they have done so; in which case Courts of Equity will endeavour to protect them from the consequence of mere indiscretion, especially after great length of time has elapsed, (m) (i) Bedell v. Constable, Vaugh. 179. Vin. Abr. Vol. 14, p. 182. (k) 6 Geo. IV. c. 16, s. 77. 7 Geo. IV. c. 57. (1) Vide Sec. 19, 20, 23, and 24, and see also 43 Geo. III. c. 75, and F Drury v. Fitch, Hutton, 16. Foster (m) Attorney-General v. Warren, and trustees should never omit the precaution of having the lands surveyed by a competent surveyor before granting the lease. Where the trustees of a charity granted a lease of lands theretofore let at 317. per annum, for nine hundred and ninetynine years, in consideration of 500l. to be laid out in improvements, and of 4l. per annum additional rent; the court considered this to be a sort of perpetuity destructive to the charity estate, and decreed that the lease should be given up: but, as the tenant had lately laid out 6007. in improvements, it was ordered that he should have just allowances made him in the account, which was directed. (p) An alienation for ninety-nine years of a charity estate, if it be a mere husbandry lease and without consideration, is a lease which the Court of Chancery will not permit to stand, unless it be shewn that such lease is fair and reasonable, and actually beneficial to the charity. In 1747, the trustees of a charity demised to the ancestor of A. the defendant for ninety-nine years a certain farm, part of a charity estate, at a yearly rent of 321., with an agreement that within seven years 407. should be laid out in repairs. The original lessee died in 1753; and in 1801 the existing trustees filed their bill against the defendant, his representative, charging collusion and breach of trust in the former trustees, and praying that the defendant might surrender his former lease and accept a new one; which they offered for a reasonable term, and at a proper rent the defendant insisted, that although his lease was a mere husbandry lease, he had laid out 1307. in repairs and draining: the relators proved that the farm was worth to be let 130l. per annum.-The Lord Chancellor held, that this was a breach of trust in the first trustees, and that the lease ought to be delivered up; but his lordship would not charge the defendant with more rent than 321. per annum previous to the filing of the bill, nor with costs, if he gave up (p) Attorney-General v. Green, 1 Ves. 452. the lease without trouble: but in future, he said, such leases of charity lands would not be tolerated. The defendant undertook to give up his lease; and it was agreed that he should continue in possession to the end of the year, paying a rent. (q) In a modern case it was determined that neither a lease of charity lands for ninety-nine years, as a mere husbandry lease, upon terms and at a rent adapted to a lease for twentyone years, nor a building lease for nine hundred and ninetynine years, upon an expenditure commensurate to a term of ninety years, would be supported. (r) But a lease for eighty years was supported as to the interest of the sub-lessee who had given a fair consideration, and had no notice, except that the estate belonged to a charity; for the court, while it protects the interests of the charity, will take care that innocent persons are not damnified. (s) In order, however, to set aside the leases of charity lands, it must appear that the trustees have been guilty of a breach of trust in making, and that the lessee has made himself accessary to that breach of trust in accepting, such leases; for a lease for lives, or for a long term of years determinable upon lives, is not upon the face of it an abuse of trust; neither is it a ground for invalidating the lease that the mode of letting is not the best that might be prescribed; but it must be shewn, that the mode is so positively bad, that no persons meaning fairly to discharge their trust would have resorted to it. (t) If it be clearly proved, that charity estates are let at an undervalue, the leases will be set aside; but this must be satisfactorily made out, and the undervalue must be considerable: for it is not sufficient to shew that a (q) Attorney-General v. Owen, 10 Ves. 555, et vide Attorney-General v. Hotham, 3 Russ. 415. () Attorney-General v. Backhouse, 17 Ves. 283, 291. (8) Ibid. (t) Per Sir W. Grant, M. R. Attorney-General. Cross, 3 Meriv. 539. And see Attorney-General v. Magwood, 18 Ves. 315. AttorneyGeneral v. Brooke, ibid. 319. Attorney-General v. Wilson, ibid. 518. Ex parte Birkhamstead Freeschool, 2 Ves. and Bea. 134. Attorney-General v. Hungerford, 8 Bligh, 437. |