HALSBURY'S LAWS OF ENGLAND FIFTH EDITION 2012

                                           87 REAL PROPERTY AND REGISTRATION

151. Determination of estate pur autrie vie. Any person having any claim in remainder, reversion or expectancy may, upon affidavit showing that he has cause to believe that the cestui que is dead, and that his death is concealed, obtain an order of the High Court for his production by the tenant pur autrie vie or his assignee¹, and if such an order is not complied with the cestui que vie is taken to be dead, and any person claiming any interest in remainder, or reversion, or otherwise may enter accordingly².

A tenant pur autrie vie who holds over after the death of the cestui que vie, without the express consent of the persons next entitled, becomes a trespasser and may be proceeded against accordingly³.

The burden of proving that the cestui que vie is dead lies on the person next entitled. In the absence of direct evidence of death, the proof may be assisted by presumption of death⁴. If the cestui que vie remains beyond the seas or elsewhere absents himself in the realm for the space of seven years, the reversioner is entitled to recover the land in the absence of proof that he is alive⁵. If the supposed dead person is subsequently proved to have been living at the date of eviction, the tenant pur autrie vie who has been evicted may recover mesne profits with interest in respect of the period during which he was wrongfully out of possession⁶.

1Re Hall, ex p Castledine (1881) 44 LT 469; Re Pople, ex p Baker (1889) 40 Ch D 589.

2See the Cestui Qui Vie Act 1707 s 1 (amended by virtue of the Constitutional Reform Act 2005 Sch 4 Para 6). Remaindermen may apply notwithstanding that, in certain events, they are not immediately entitled on the death of the tenant for life: Ex p Grant (1801) 6 Ves 512. The order states the place at which, the time when, and the person before whom the cestui que vie is to be produced: Ex p St Aubyn (1793) 2 Cox Eq Cas 373; Ex p Whalley (1828) 4 Russ 561; Re Lingen (1841) 12 Sim 104; Re Lingen (1841) 12 Sim 104; Re Clossey (1854) 2 Sm & G 46; Re Pople, ex p Baker (1889) 40 Ch D 589; 2 Secton's Judgments and Orders (7^th Edn) 1713. It appears that it is not necessary for the affidavit required by the statute to contain a statement that the death is concealed from the applicant: Re Dennis' Will (1860) 7 Jur NS 230. The order for production will be made if the remainderman gives notice to the person in possession to produce the cestui que vie under the staute, and the notice is not complied with: Re Owen (1878) 10 Ch D 166. In default of production, a further order is made for the production before commissioners or to the court (Re Lingen; Re Pople, ex p Baker; 2 Seton's Judgments and Orders (7^th Edn) 1713); and, if this is not complied with, a final order is made that the cestui que vie is deemed to be deemed to be deemed to be dead (Re Lingen; Re Pople, ex p Baker; 2 Seton's Judgments and Orders (7^th Edn) 1713). As to extending the time for production see Re St John's Hospital (1868) 18 LT 317. The court cannot give the tenant pur autrie vie the costs of producing the cestui que vie (Re Issac (1838) 4 My & Cr 11); nor will it give the applicant his costs, at any rate if the respondent had good reason for requiring him to come before the court (Re Pople, ex p Baker at 593). The statute applies to cases where the title of the remaindermen depends on the death of the cestui que vie without issue (Ex p Grant; Re Pople, ex p Baker); to cases where the estate is for 99 years if the cestui que vie so long lives (Ex p Grant); and to cases where the person in possession has any interest determinable on a life, such is permissive occupation, although not an estate pur autrie vie strictly so called (Re Stevens (1886) 31 Ch D 320). As to procedure see further Daniell's Chancery Practice (8^th Edn) 1866. The remainderman has, of course, to give up possession to the tenant pur autrie vie if, after the order is made, the cestui que vie proves to be alive: Re Pople, ex p Baker at 592. As to an estate for a term determinable on life see now PARA 119 note 3.

                                                                                 PARA 119 note 3

Fines and Recoveries Act 1833 s 22 (as amended see note 2). The estates specified as sufficient to confer the office of protector are 'any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years)': s 22 (as so amended). An estate for years determinable on a life or lives was mentioned with reference to a form of settlement which was practically obsolete before 1926. The first limitation was frequently to A for 99 years if he should so long live, followed by a remainder to his first and other sons in tail. A had thus no estate of freehold, and his concurrence in a recovery was not nessecary. This form of limitation was used in order to keep the land in settlement as long as possible: see Bell v Holtby (1873) LR 15 Eq 178 at 189. However, in effect, A had an estate for life, and the Fines and Recoveries Act 1833 expressly made his assent to disentailing necessary. An actual life estate was greater than an estate for years determinable on life; consequently, this was within s 22 and so a fortiori was a prior estate tail: Re Blewitt (1855) 6 De GM & G 187. Thus, where there is a tenant in tail in possession and a tenant in tail in remainder: Re Blewitt; Carson's Real Property Statutes (3^rd Edn) 322.

                                                                                           note 2

See the Fines and Recoveries Act 1833 ss 22-31. Of these ss 29-31 related to dispositions before 1834 and are repealed as obsolete: Law of Property (Amendment) Act 1924 s 10, Sch 10 (repealed). The Fines and RECOVERIES Act 1833 s 24 is also repealed; and ss 22, 23, 25-28 are amended by the Statute Law Revision (No 2) Act 1888.

3See the Cestui que Vie Act 1707 s 5 (amended by the Statute Law Revision Act 1888).

4See Prudential Assurance Co v Edmonds (1877) 2 App Cas 487, HL; Re Owen (1878) 10 Ch D 166; Re Clossey (1854) 2 Sm & G 46. The order has been made on evidence of incurable illness of the cestui que vie when last heard of: Re Dennis' Will (1860) 7 Jur NS 230. As to presumption of death see CIVIL PROCEDURE vol 11 (2009) PARA 1100.

5See the Cestui que Vie Act 1666 s 1.

6See the Cestui que Vie Act 1666 s 4 (amended by the Statute Law Revision Act 1888).

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SANTOS BONACCI, LISA HARRISON, CHRIS HALES & BOB WRIGHT ON ONE PEOPLE’S TRUST

Listen to internet radio with FreedomReigns on Blog Talk Radio

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WESTERN AUSTRALIAN SUPREME COURT ACT 1935 S. 24 AND 2010 AMENDMENT

SUPREME COURT ACT 1935 - SECT 24

24 .         Law and equity to be concurrently administered

        (1A)         Subject to the express provisions of any other Act, in every civil cause or matter commenced in the Supreme Court, law and equity shall be administered by the Court according to the rules set out in subsections (1) to (7).
        (1)         If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which before the commencement of the Supreme Court Act 1880 ⁶ could only have been given by a court of equity, the Court, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court in its equitable jurisdiction in a suit or proceeding for the same or the like purpose properly instituted before the commencement of the said Act.
        (2)         If any defendant claims to be entitled to any equitable estate or right or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title or claim asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the Court, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court in its equitable jurisdiction ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted by the Court for the same or the like purpose before the commencement of the Supreme Court Act 1880  ⁶ .
        (3)         The Court, and every judge thereof, shall have power to grant to any defendant in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him — 
            (a)         all such relief against any plaintiff or petitioner as such defendant shall have properly claimed, by his pleading, and as the Court, or any judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and
            (b)         all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of court or any order of the Court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose.
        (3A)         Every person served with any such notice as mentioned in subsection (3)(b) shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim, as if he had been duly sued in the ordinary way by such defendant.
        (4)         The Court, and every judge thereof, shall recognize and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Court in its equitable jurisdiction would have recognized and taken notice of the same in any suit or proceeding duly instituted therein before the commencement of the Supreme Court Act 1880 ⁶ .
        (5)         No cause or proceeding at any time pending in the Supreme Court shall be restrained by prohibition or injunction; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, if the Supreme Court Act 1880 ⁶ had not been passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto.
        (5A)         However —
            (a)         nothing in this Act shall disable the Court, if it thinks fit, from directing a stay of proceedings in any cause or matter pending before it; and
            (b)         any person, whether a party or not to any such cause or matter, who would have been entitled, if the Supreme Court Act 1880 ⁶ had not been passed, to apply to any court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule, or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, may apply to the Court, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally or so far as may be necessary for the purposes of justice; and the Court shall thereupon make such order as shall be just.
        (6)         Subject to the foregoing provisions for giving effect to equitable rights and other matters of equity, and to the other express provisions of this Act, the Court, and every judge thereof, shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom, or created by any statute, in the same manner as the same would have been recognized and given effect to if the Supreme Court Act 1880 ⁶ had not been passed in any branch of its jurisdiction, or by the Court for Divorce and Matrimonial Causes.
        (7)         The Court, in the exercise of the jurisdiction vested in it by this Act, in every cause or matter pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them in such cause or matter; so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.
        [Section 24 amended by No. 19 of 2010 s. 51.]
        [Heading inserted by No. 19 of 2010 s. 44(2).]

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THE NATURE OF THE RIGHTS OF THE "CESTUI QUE TRUST" AUSTIN WAKEMAN SCOTT

This is from the Columbia Law Revue, April 1917.  Happy reading.

Stable URL: http://www.jstor.org/stable/1112528
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MINNESOTTA RULE DOCUMENTS RELATING TO CESTUI QUE VIE ACT 1666

One of Rod Class’ documents, from Minnesota, will update when I know more myself.

Rule 220.  Birth Certificates

               The Registrar of Titles is authorized to receive for registration of memorials upon any outstanding certificate of title an official birth certificate pertaining to a registered owner named in said certificate of title showing the date of birth of said registered owner, providing there is attached to said birth certificate an affidavit of an affiant who states that he/she is familiar with the facts recited, stating that the party named in said birth certificate is the same party as one of the owners named in said certificate of title; and that thereafter the Registrar of Titles shall treat said registered owner as having attained the age of the majority at a date 18 years after the date of birth shown by said certificate.

Task Force Comment--1991 Adoption

This rule is derived from 4th Dist. R. 11.05.

Rule 221.  Death Certificates

               The Registrar of Titles may receive official certificates of death issued by the United States Department of Defense or other military department in lieu of a certificate of death.

Task Force Comment--1991 Adoption

This rule is derived from 4th Dist. R. 11.06.

Rule 222.  Condominiums

               The procedure for administration by the Registrar of the Uniform Condominium Act shall be as follows:

               (a)           The declaration, bylaws and any amendments thereto, to be filed in the office of the Registrar of Titles, must be executed and acknowledged and embrace land within the county.

               (b)          In order to have uniformity in the recording offices and to protect the interests of the public generally, the general requirements of Minnesota Statutes, section 505.08 as to the platting of land shall be followed, namely:  as authorized by Minnesota Statutes, section 505.08, subdivision 2a, only one set of transparencies shall be filed.  The transparencies shall be of 4 mil. thickness, black on white on clear Mylar and be made by a fixed photo process.  The transparencies shall be 20 by 30 inches in size.  More detailed information on the drafting of the condominium plat may be obtained from the Registrar of Titles.

               (c)          The condominium plat is to be numbered serially beginning with the next number after the last apartment ownership number assigned pursuant to the Minnesota Condominium Act, Minnesota Statutes, chapter 515, and the numbers shall run consecutively within the offices of the County Recorder and the Registrar of Titles.

               (d)          Where registered land is to be submitted for administration under said act, the declarant, prior to filing the declaration and bylaws, shall obtain an Order of the Court in a Proceedings Subsequent to Initial Registration of land that the Declaration, including the condominium plat, and Bylaws, as submitted, comply with the various requirements of Minnesota Statutes, chapter 515A, and any amendments thereto.  The Order shall direct the Registrar of Titles to accept such documents for registration and to enter them as separate memorials on the original Certificate of Title and on the Owner’s Duplicate Certificate thereof.  Reference to such documents, including the document numbers and dates of filing, shall be carried forward to each succeeding Certificate, including any Mortgagees’ or Lessees’ Duplicate Certificates.

               (e)          A condominium shall not include both registered land and unregistered land, but shall consist only of land that is all registered under Minnesota Statutes, chapter 508 or land of which no part is so registered.

Task Force Comment--1991 Adoption

This rule is derived from 4th Dist. R. 11.07.

http://www.mncourts.gov/ruledocs/general/GRtitleIII.htm#g220
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THE CESTUI QUE VIE ACT - TAMI PEPPERMAN

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FRANK O'COLLINS UCADIAN ARCHITECT INTERVIEWED ON SKID ROW RADIO SHOW 21.12.201

PART 1
 
PART 2
 
PART 3
 

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