5The owner of the first freehold estate under a settlement prior to an estate tail under the same settlement to be protector of the settlement

5 The owner of the first freehold estate under a settlement prior to an estate tail under the same settlement to be protector of the settlement

[Section 5 Amended by 25 Geo. V No. 78 ]

(1)  If there shall be a tenant in tail of lands under a settlement, and there shall be subsisting in the same lands, or any of them, under the same settlement, and whether created, confirmed, or restored by such settlement, any freehold estate prior to the estate tail, the person who shall be the owner of the prior freehold estate, or the first of such prior estates if more than one, then subsisting under the same settlement, or who would have been so if no absolute disposition thereof had been made (the first of such prior estates, if more than one, being for all the purposes of this Act deemed the prior estate), shall be the protector of the settlement, so far as regards the lands in which such prior estate shall be subsisting.

(2)  Such person shall for all the purposes of this Act be deemed the owner of such prior estate, although the same may have been charged or encumbered either by the owner thereof, or by the settlor, or otherwise howsoever, and although the whole of the rents and profits be exhausted or required for the payment of the charges and encumbrances on such prior estate, and although such prior estate may have been absolutely disposed of by the owner thereof, or by or in consequence of the insolvency of such owner, or by any other act or default of such owner.

(3)  An estate by way of resulting use or trust to or for the settlor shall be deemed an estate under the same settlement within the meaning of this section.