Chap. XXXI. direct past maintenance to be charged on an infant's freehold estate in possession. In re Howarth, 8 Ch. 415.

XV. Discretionary powers generally.

Large dis

cretion not interfered with.

Power to postpone.

But no such charge can be created for future maintenance, nor can it be created where the estate is in reversion. In re Hamilton, 31 Ch. D. 291; Cadman v. Cadman, 33 Ch. D. 397.

It seems that accumulations of income may be applied in maintenance in subsequent years without express authority. Edwards v. Grove, 2 D. F. & J. 210.

The cases above cited on the question of maintenance are authorities on the view taken by the Court of discretionary powers given to trustees. It may be convenient here to refer to the principal cases.

Where a large discretion is conferred upon trustees the Court will not interfere with the exercise of the discretion so long as it is honestly exercised. It matters not whether the discretion is expressed in the form of a trust or of a power. Gisborne v. Gisborne, 2 App. C. 300; Tabor v. Brooks, 10 Ch. D. 273; In re Courtier; Coles v. Courtier, 34 Ch. D. 136.

Upon this principle, where there is a trust for sale with power to postpone so long as the trustees think fit, the Court will not, so long as the trustees act in good faith, compel them to sell, or if they decide to sell restrain them from so doing. In re Norrington; Brindley v. Partridge, 13 Ch. D. 654; In re Blake; Jones v. Blake, 29 Ch. D. 913; In re Crowther; Midgley v. Crowther, (1895) 2 Ch. 56; see Thomas v. Williams, 24 Ch. D. 558.

The result is that if one of the trustees honestly refuses, under existing circumstances, to concur in exercising a discretionary trust or power he cannot be made to do so, and the trust or power cannot be exercised. Marquis Camden v. Murray, 16 Ch. D. 161; Tempest v. Lord Camoys, 21 Ch. D. 571; In re Lever; Cordwell v. Lever, 76 L. T. 71; see Re Atkins; Newman v. Sinclair, 81 L. T. 421.

It is, of course, a question of construction in each case whether the trustees are intended in any particular event to exercise a trust or power which is in terms discretionary.

Thus, if legacies are payable out of the proceeds of sale of

real estate and the personalty is insufficient to pay them, it Chap. XXXI. may be the duty of the trustees to exercise a discretionary power to sell the real estate conferred upon them. Cockill, 3 D. J. & S. 622; see 34 Ch. D. 140.

Nickisson v.

nature of a

If there is a discretionary trust or a power in the nature Power in of a trust and the trustees decline, or one of the trustees trust. declines, to exercise the discretion, the Court will interfere and exercise the discretion.

For instance, where the testator directed his mansion-house to be kept furnished and stocked and gave his trustees power to lease the house and furniture, and one trustee objected to the house being let, the Court compelled the trustees to exercise the power of leasing. Tempest v. Lord Camoys, 21 Ch. D. 576, n.; where the dissentient trustee objected not to any particular lease but apparently to any letting whatever. See, too, 34 Ch. D. 140.

exercise of discretion.

The Court will, of course, restrain an improper exercise by Improper trustees of a discretion vested in them. Tabor v. Brooks, 10 Ch. D. 273; Bethell v. Abraham, 17 Eq. 24.

Effect of

administration action on

powers.

The commencement of an administration action does not put an end to the trustees' powers. For instance, after the commencement of such an action and before judgment, trustees' they could exercise a trust for or power of sale, though no doubt a prudent trustee would apply for the sanction of the Court and a prudent purchaser would not complete without notice to the parties to the action. Cafe v. Bent, 3 Ha. 245, 249; Turner v. Turner, 30 B. 414; see Walker v. Smalwood, Amb. 676.

After judgment in an administration action it may be laid Effect of judgment in down as a general principle, that ordinary powers and discre- administration action. tions must be exercised subject to the approval of the Court, though the will may confer such a special discretion upon a trustee as the Court will not, even after judgment for administration, control or interfere with if it is honestly exercised. Bethell v. Abraham, 17 Eq. 24; In re Gadd; Eastwood v. Clarke, 23 Ch. D. 134 (new trustees); In re Norris; Allen v. Norris, 27 Ch. D. 333; and cases cited above. See, too, In re Mansel; Rhodes v. Jenkin, 54 L. J. Ch. 883.

T.W.

EE

Chap. XXXI.

Judgment for administration does not, however, affect the

Tenant for life powers conferred upon a tenant for life by the Settled Land Acts. Cardigan v. Curzon-Howe, 30 Ch. D. 531.

under Settled

Land Acts.

Payment into
Court.

XVI. Power of advancement.

Whether

Payment into Court in an administration action does not put an end to the discretion of trustees over the fund (a). But if the trustees pay the fund into Court under the Trustee Act their discretion is at an end, and if it is a personal discretion it cannot be exercised by the Court (b). Brophy v. Bellamy, 8 Ch. 798 (a); In re Coe's Trust, 4 K. & J. 199; Re Ashburnham's Trusts, 54 L. T. 84; In re Mulqueen's Trusts, 7 L. R. Ir. 127; Re Nettlefold's Trusts, 59 L. T. 315; In re Murphy's Trust, (1900) 1 Ir. 145, not following Re Landon's Trusts, 40 L. J. Ch. 370 (b).

Advancement is a payment to persons who are presumably entitled to or have a vested or contingent interest in an estate or a legacy before the time fixed by the will for their obtaining the absolute interest in a portion or the whole of that to which they would be entitled. Per Cotton, L.J., Re Aldridge; Abram v. Aldridge, 55 L. T. 554.

Such a power may be limited to minority if the will so directs, for instance, if the power applies only to a child being a minor (Clarke v. Hogg, 19 W. R. 617); but it seems it is not in an ordinary case limited to minority, though it is as a rule only applicable during the early life of the object. Re Aldridge, 54 L. T. 827; 55 L. T. 554.

.

A power to advance out of a presumptive share ceases when the share has become vested. Molyneux v. Fletcher, (1898) 1 Q. B. 648.

Where a fund is appointed to a child of A. under a special to an appointed power in the will and the will contains a power to advance

power applies

share.

any child of A., the power of advancement applies as well to an appointed share as to a share taken in default of appointment. McMahon v. Gaussen, (1896) 1 Ir. 143; see, too, In re Hocking; Michell v. Loe, (1898) 2 Ch. 567.

A power of advancement, exercisable with the consent of the tenant for life, may be exercised after the bankruptcy of the tenant for life with his consent and that of his trustee in bankruptcy. In re Cooper; Cooper v. Slight, 27 Ch. D. 565.

A power of advancement would not justify the payment of a Chap. XXXI. sum to a beneficiary merely to put into his own pocket. But it would justify the payment of a sum for the purpose of making a settlement on the family of the beneficiary if he has no property producing income. Roper Curzon v. Roper Curzon, 11 Eq. 452.

A power of advancement may justify payment of a marriage Marriage portion. portion to a daughter. Lloyd v. Cocker, 27 B. 645.

husband.

Such a power would not justify a payment to the husband Payment to of a beneficiary without some security for the repayment of the amount. Talbot v. Marshfield, 3 Ch. 622; In re Kershaw's Trusts, 6 Eq. 322; Molyneux v. Fletcher, (1898) 1 Q. B. 648. A power to apply a sum for the preferment, advancement, Payment of or otherwise for the benefit of a legatee authorises the payment of his debts. Lowther v. Bentinck, 19 Eq. 166; see In re Brittlebank; Coates v. Brittlebank, 30 W. R. 99.

debts.

Sect. 4 of the Land Transfer Act, 1897 (60 & 61 Vict. c. 65), XVII. Appropriation. enacts as follows:

:

(1) The personal representatives of a deceased person, may in the absence of any express provision to the contrary contained in the will of such deceased person, with the consent of the person entitled to any legacy given by the deceased person or to a share in his residuary estate, or, if the person entitled is a lunatic or an infant, with the consent of his committee, trustee, or guardian, appropriate any part of the residuary estate of the deceased in or towards satisfaction of that legacy or share, and may for that purpose value in accordance with the prescribed provisions the whole or any part of the property of the deceased person in such manner as they think fit. Provided that before any such appropriation is effectual, notice of such intended appropriation shall be given to all persons interested in the residuary estate, any of whom may thereupon within the prescribed time apply to the Court, and such valuation and appropriation shall be conclusive save as otherwise directed by the Court.

(2) Where any property is so appropriated a conveyance thereof by the personal representatives to the person to whom it is appropriated shall not, by reason only that the property

Land Transfer
Act, s. 4.

Chap. XXXI.

Marginal note not accurate.

Appropriation apart from Act.

Power of administrator.

Effect of valid appropriation.

so conveyed is accepted by the person to whom it is conveyed, in or towards the satisfaction of a legacy or a share in residuary estate, be liable to any higher stamp duty than that payable on a transfer of personal property for a like purpose.

(3) In the case of registered land, the production of the prescribed evidence of an appropriation under this section shall authorise the registrar to register the person to whom the property is appropriated as proprietor of the land.

The marginal note to the section, "Appropriation of land, &c.," is not accurate, as the section extends to "any part of the residuary estate."

The expression personal representative in the Act means an executor or administrator (see sect. 24 (2)). Sect. 4 does not, therefore, in terms apply to a trustee. Rules have not yet been made as to the mode of valuation or the time within which application is to be made to the Court.

Apart from the Act, executors and trustees had power, with the consent of a legatee, though he might himself be an executor or trustee, to appropriate any securities, in or towards satisfaction of his legacy or share of residue. They also had power to appropriate authorised securities or securities which they were empowered to retain in or towards satisfaction of a settled legacy or a settled share of residue. If the appropriation was fairly and honestly made it was binding on all persons interested in the estate. In re Lepine; Dowsett v. Culver, (1892) 1 Ch. 210; In re Richardson; Morgan v. Richardson, (1896) 1 Ch. 512; Re Brooks, 76 L. T. 771; In re Nickels; Nickels v. Nickels, (1898) 1 Ch. 680.

An administrator had a similar power of appropriation. Elliott v. Kemp, 7 M. & W. 306; Barclay v. Owen, 60 L. T. 220.

The effect of a valid appropriation is that the legatee can look only to the appropriated sum. If it diminishes in value he must bear the loss. If it increases in value he gets the benefit. On the other hand, he is not affected by any diminution in value of the rest of the estate, and after appropriation the executor cannot claim any indemnity against the