But a subsequent limitation in fee to the same trustees, Chap. XXX. and a grant of a term to other persons, will not cut down. the estate of the trustees. Colmore v. Tyndall, 2 Y. & J. 605; Lewis v. Rees, 3 K. & J. 132; see Fowler v. Lightburne, 11 Ir. Ch. 495.

In the same way if the trustees have duties to perform only Estate limited during the life of a beneficiary, their estate will be limited by duty. to that life (a), and this construction is assisted if the devise in remainder is an independent devise (b). Doe d. Woodcock v. Barthrop, 5 Taunt. 382; Playford v. Hoare, 3 Y. & J. 175 (a); Adams v. Adams, 6 Q. B. 860; Cooke v. Blake, 1 Ex. 220 (b).

take estate

If the trustees must take an estate during the life of a Where trustees beneficiary and they may require an estate for an indefinite for a life and period beyond the life; for instance, if the trustees are an uncertain period beyond. to stand seised during the life of A. and also until the testator's debts are paid (a), or if there is an indefinite power ⚫ of leasing (b), the fee simple will not be cut down. Collier v. Walters, 17 Eq. 252, overruling Collier v. McBean, 34 B. 426 (a); Doe d. Tomkyns v. Willan, 2 B. & Ald. 84; Doe d. Keen v. Walbank, 2 B. & Ad. 554; Riley v. Garnett, 3 De G. & S. 629; see Doe d. Kimber v. Cafe, 7 Ex. 675 (b).

A devise to trustees in fee upon trust to pay an annuity to A. for life will not be cut down to an estate for A.'s life, as the trustees may have to raise arrears after the annuitant's death. Fenwick v. Potts, 8 D. M. & G. 506; Whittemore v. Whittemore, 38 L. J. Ch. 17.

V. EFFECT OF WILLS ACT.

Devise to without words

trustees

of limitatiou

upon trust to

In cases before the Wills Act a devise to trustees in words, that did not carry the fee, upon trust to pay debts, or make certain specified payments out of the rents, only gave them a chattel interest till the payments were made. Cordall's pay debts Case, Cro. El. 316; Doe v. Simpson, 5 East, 162; Ackland Wills Act. v. Lutley, 9 A. & E. 879; Heardson v. Williamson, 1 Kee. 33.

So where the trustees were to pay annuities, and then

before the

Chap. XXX.

Sects. 30 and 31 of

a specified sum out of the rents and profits, they took an estate for the lives of the annuitants with a chattel interest superadded. Doe d. White v. Simpson, 5 East, 162.

The law, however, on this point has been altered by the Wills Act. sects. 30 and 31 of the Wills Act, which provide:

Effect of these sections according to Mr. Jarman.

30. "When any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple, or other the whole estate or interest, which the testator had power to dispose of by will, in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication."

31. "Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied."

The short effect of these obscure sections as stated by Jarman, and adopted by most of the writers who have followed him, is, "that trustees whose estate is not expressly defined by the will, must in every case, and whatever be the nature of the duty imposed on them, take either an estate for life or an estate in fee." 2 Jarm. 1166; see Shelford, Real Property Stat. 432; 10th ed. 235.

Lewin on Trusts,

Lewin

CHAPTER XXXI.

ON CERTAIN POWERS COMMONLY INSERTED IN WILLS.

A POWER of sale and exchange authorises a partition. In Chap. XXXI. re Frith & Osborne, 3 Ch. D. 618.

I. Powers of sale.

Mortgage.

A power of or trust for sale will not as a general rule authorise a mortgage, though it may, if the object of the sale is to raise a particular charge, subject to which the estate is devised. Stroughill v. Anstey, 1 D. M. & G. 635; Page v. Cooper, 16 B. 396; Walker v. Southall, 56 L. T. 882. A devise of real and personal estate upon trust to invest Trust to the same in certain securities has been held to give an implied power of sale over the real estate. Affleck v. James, 17 Sim. 121; Mower v. Orr, 7 Ha. 473; Cornick v. Pearce,

7 Ha. 477.

But a power to invest will not have this effect. Re Holloway; Holloway v. Holloway, 60 L. T. 46.

invest.

to divide.

A direction to divide real and personal estate into moieties Direction does not alone give an implied power of sale. Cornick v. Pearce, 7 Ha. 477.

minerals.

An ordinary power of sale does not authorise the severance Severance of of the timber or minerals from the land. Cholmeley v. Paxton, 3 Bing. 207; S. C. nom. Cockerell v. Cholmeley, 10 B. & C. 564; 3 Russ. 565; 1 R. & M. 418; 6 Bl. N. S. 120; 1 Cl. & F. 60; Buckley v. Howell, 29 B. 546.

The Trustee Act, 1893 (56 & 57 Vict. c. 53), sect. 44, gives the Court jurisdiction in the case of trustees authorised to dispose of land by way of sale, exchange, or partition, to sanction sales with an exception or reservation of any minerals.

Chap. XXXI.

Whether power of sale extends to purchased lands.

Power of sale at death of tenant for

life.

Sale within

given period.

Surviving trustee can sell.

Trust and power.

Direction to
executors
to sell.

Where there was a power to sell trust funds and invest them in the purchase of land, to be held on such trusts as would best correspond with those then subsisting, with a direction that land purchased should be considered personalty, it was held that the power of sale extended to purchased lands. Tait v. Lathbury, 1 Eq. 174; 35 B.

112.

A power of sale to be exercised after the death of a tenant for life cannot be exercised during his life, though he may consent to the sale. Blacklow v. Laws, 2 Ha. 40; Johnstone v. Baber, 8 B. 233; Mosley v. Hide, 17 Q. B. 91; Want v. Stallibrass, L. R. 8 Ex. 175.

A direction to sell within five years has been held to be directory merely where the purchase money was to be applied in payment of debts. Pearce v. Gardner, 10 Ha. 287; see Cuff v. Hall, 1 Jur. N. S. 972.

Where land is devised to several trustees in fee upon trust to sell, the survivors can sell; and it is not necessary to fill up the number of trustees in order to make a good title. Lane v. Debenham, 11 Ha. 192.

Similarly if one trustee disclaims the others can sell. Nieloson v. Wordsworth, 2 Sw. 365; Adams v. Taunton, 5 Mad. 435; see Crewe v. Dicken, 4 Ves. 67.

There is an important distinction between a power coupled with an interest and a bare power.

Thus a devise to executors to sell passes the interest, but a devise that executors shall sell the land, or that land shall be sold by them, gives them but a power. Howell v. Barnes, Cro. Car. 382; Yates v. Compton, 2 P. W. 308; Lancaster v. Thornton, 2 Burr. 1027; Doe v. Shotter, 8 A. & E. 905; see Knocker v. Bunbury, 6 Bing. N. C. 306; Lambert v. Browne, I. R. 5 C. L. 218.

A direction to the testator's executors to sell his lands gives the executors a common law authority under which they can vest the legal estate in a purchaser without the concurrence of the heir. Co. Litt. 112b.

If the lands are devised by the will subject to the direction, it would seem the concurrence of the beneficiaries in the sale

would be no more necessary than the concurrence of the heir, Chap. XXXI. if the land is not devised.

The proper form of conveyance in such a case appears to be a bargain and sale which will not require to be enrolled under 27 Hen. VIII. c. 16, as it takes effect at common law and not under the Statute of Uses.

If the testator directs copyholds to be sold, or to be sold and Direction to sell copyholds. conveyed, the purchaser is entitled to be admitted without the previous admittance either of the trustees or the heir. Holder v. Preston, 2 Wils. 400; R. v. Wilson, 11 W. R. 70; 3 B. & S. 201. The same principle applies if the copyholds are devised to the trustees subject to the power. Glass v. Richardson, 9 Ha. 698; 2 D. M. & G. 658.

executors

may sell.

The statute 21 Hen. VIII. c. 4, enacts in effect, that if any of Acting the executors refuse to undertake the administration and charge of the will, the executors or executor accepting the charge may sell under a direction to the executors to sell the land.

Copyholds are within the statute. Peppercorn v. Wayman, 5 De G. & S. 230.

powers and

The Trustee Act, 1893 (56 & 57 Vict. c. 53), sect. 22. provides Survival of that where a power or trust is given to or vested in two or trusts. more trustees, the same may be exercised or performed by the survivors or survivor.

The section applies only to trusts constituted after or created by instruments coming into operation after the 31st December, 1881.

Sect. 50 provides that the expressions trust and trustee shall include the duties incident to the office of personal representative of a deceased person. Sect. 22 therefore extends to executors.

Act, 1882, s. 6.

Sect. 6 of the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), Conveyancing enables a person to whom any power, whether coupled with an interest or not, is given, by deed to disclaim the power, and on such disclaimer the power may be exercised by the other or others or the survivors or survivor of the others of the persons to whom the power is given, unless a contrary intention is expressed in the instrument creating the power. See In re Fisher, 13 L. R. Ir. 546.