TAITE as follows: The children of John (their parents being dead) were absolutely entitled to one-fifth, and the gifts of one fifth SWINSTEAD. to Noah, Josiah and to Gould and wife were absolute. But a difficulty arose as to the one-fifth share devised to Josiah absolutely; it appeared that he died in 1838 intestate, leaving Josiah Slee the younger his heir-at-law, on whom his one-fifth share descended. Josiah Slee the younger, having attained twenty-one years, went to Tasmania in 1832, and resided for some time at Hobart Town. He afterwards left that place, and when he was last heard of, in the month of June, 1858, he was residing at Sydney, in Australia, but it was not known whether he was now alive or dead, or, if dead, whether he had left any child or had made any will. As to the remaining one-fifth devised to Samuel Taite and wife and children, it appeared that her husband had died in 1832, and that, under the trusts of the will, the one-fifth share now stood limited to Mrs. Taite for life, with power to her to appoint among all her children, and for want of appointment, amongst all her children equally. She had five children living, who had all attained twentyone; but there was still the possibility of her having other children who might become entitled to participate in this onefifth. The defendant (the purchaser) accepted the title to the premises, subject to this one objection, viz., that the plaintiffs could not make a good title under the power of sale contained in the will, by reason of an original invalidity in such power, and by reason of the lapse of time and the other facts and circumstances which had happened since the testator's decease. The plaintiffs contended the contrary, that the objection to the exercise of the power of sale by the plaintiffs was invalid, that, under the circumstances, the power of sale was valid, and that they could, by virtue thereof, make a good title. Under these circumstances, the plaintiffs and defendant concurred in a special case, which now came on for argument. Mr. Bagshawe, jun., for the vendors, argued that the power of sale was valid, for it must be necessarily exercised within legal limits, and that, therefore, it did not offend against the law as to perpetuities. Mr. Jessel, for the purchaser, argued, that although the power would have been good if it had been limited to the estate and interest of Mrs. Taite and her children, still that it was void as against such other persons as were entitled to an estate in fee simple in distinct shares of the estate. That B.R.-VOL. CXXII. 15 [527] TAITE ተ. such a power would be too remote if attached to the latter SWINSTEAD, shares alone, and that it could not be rendered valid by being [ *528 ] connected with other shares given in strict settlement. March 24. [529] Ware v. Polhill (1), Trower v. Knightley (2), Lantsbery v. Collier (3), Wolley v. Jenkins (4), were cited. THE MASTER OF THE ROLLS: The question on this special case is, whether a power of sale given by the will of Noah Slee is still in force. All the trusts of the share of John Slee are exhausted, and the persons now entitled to this share are his children, who are entitled to it in fee. Noah Slee is dead, and his heir is entitled to his one-fifth in fee. Josiah Slee is also dead; the heir who is entitled to this share in fee is abroad, and it is not known where he is; he, however, is entitled to one-fifth in fee, wherever he may be. The trusts relative to the share of Mr. and Mrs. Gould are exhausted: he is dead, and his widow, Mrs. Gould, is, under the trusts of the will, entitled to this one-fifth in fee. The only remaining share is that settled on Mr. and Mrs. Taite, and their children. He is dead, leaving children, and this one-fifth is now vested in the trustees, in trust for Mrs. Taite for life, with remainder to her children in fee. The question is, whether, as the trusts of this latter one-fifth. alone are still subsisting, the power of sale over the whole property is still in existence, and capable of being exercised by the trustees. Although the doctrine in Ware v. Polhill (1) may have been limited to a narrower extent than what it was originally supposed to have decided, viz., that general powers of sale were always bad as offending against the rule against perpetuities, it is, I think, clear, in accordance with the recognized authority of that case, that if an estate be given to trustees, in trust for certain persons, as tenants in common in fee, with a power of sale given to the trustees without any limit, the power of sale would be invalid, because, if it were exercisable at all, it would be exercisable in perpetuum and as long as the estates given to the cestuis que trust lasted. But, on the other hand, if the estate was given to trustees in trust for certain persons for life, in succession, with an ultimate remainder to persons in fee, and a power of sale was intrusted to those trustees, the power of sale would, in my opinion, subsist until the trust was exhausted; in other words, until the persons entitled to the re (1) 8 R. R. 144 (11 Ves. 257). (2) 6 Madd. 134; see note, post, p. 228. (3) 110 R. R. 430 (2 K. & J. 709). (4) 113 R. R. 29 (23 Beav. 56). mainder in fee had a right to call upon the trustees to convey to them the absolute interest in their shares. And the circumstance that one person was entitled to have his share in the fee conveyed to him, while the trusts of the other share were still subsisting, would not prevent the trustees from exercising the power of sale. In other words, the power of sale is given till all the trusts are exhausted, and till the whole estate is vested in fee in the person or persons entitled. This is in truth a question of intention, to be discovered from the words of the will, and the Court will execute the intention of the testator, with regard to the power of sale, provided it do not offend against some principle of law. If a testator expresses his intention that a power of sale should exist in trustees for ever, which is the necessary conclusion in the case I first suggested, this Court will not allow that power to be executed, because it violates the rule against perpetuities. But although Ware v. Polhill (1) was originally supposed to have a wider meaning, if, indeed, Lord ELDON intended his decision to have such wider application, what I consider to be left untouched by it, as I have stated, is, that a general power of sale will be good, if it be restricted, either in terms or by inference, to the duration of the trusts, which are within legal limits and which the trustees have to perform; in other words, the duration of the power of sale is to be interpreted from the words used by the testator, and with regard to the duration of the trusts imposed by him. Regarding then the question in this light, I have first to consider what, in this case, was the intention of the testator as to the duration of the power of sale he gave, and next, whether this intention can properly be allowed by the Court to be executed. I think the intention clear; the estate is given in fivefifths, two of them in settlement to husband and wife for their lives in succession, with remainder to their children, with a gift over in case of no children, and the remaining fifths are given to persons in fee. The power of sale is unlimited and overrides the whole estate. I think that the testator intended the power of sale to last as long as any one of the trusts relative of the two-fifths which were settled remained to be performed; and that, accordingly, he intended it to endure as long as the trusts of Mrs. Taite's share remained to be performed: for, if not, why did he give the power at all, or why did he not confine *the power to the two-fifths which were settled ? I think this [ *531 ] conclusive, that the testator intended the power to continue a (1) 8 R. R. 144 (11 Ves. 257). subsisting power, as long as any trust remained to be performed with regard to any one of the shares. Is there then any rule of law that would be violated by my holding the power to be still subsisting? I am of opinion that there is not the trusts are within the proper limits in point of time, and if the power cannot now be exercised conformably with the intention of the testator, then it could never have been exercised, and it was originally invalid. But I entertain no doubt that the circumstance of three of the shares being given in fee did not prevent the testator from giving to his trustees a power of sale, limited to take effect over the whole of the property, as long as the trusts of any other of the shares remained to be exercised, any more than if he had given the whole of the shares in fee he might have given a power of sale to be exercised within twelve months after his decease. This view I think consistent with all the decisions. It is clearly supported by the case of Trower v. Knightley (1); it is a necessary consequence from the principles laid down in the very able decision of the Vice-Chancellor WooD in Lantsbery v. Collier (2); and, in my opinion, it is perfectly consistent with the case of Wolley v. Jenkins (3); in fact, the decision in that case proceeded on the assumption, that the power of sale remained as long as there were any trusts of the settlement to be performed, but that when they were over, the power was gone also the question to be determined there was, *whether the trusts of the settlement to be performed by the trustees of it were not gone when the tenants for life were all dead, and the persons entitled in remainder were either dead or had never come into existence, and the ultimate gift over had vested in the persons last named-whether the power of sale was subsisting when all this had occurred, simply because a jointure charged on the estate by the settlement and secured by a term which was vested in trustees other than those of the settlement was still subsisting. Accordingly it was there decided, that the trusts of the settlement, for which the power of sale was given, were exhausted, and, consequently, that the power of sale was gone with them. Here the trusts are not exhausted, they are still subsisting as to one-fifth. The power was good while the trusts of threefifths were subsisting, why is it not also good and capable of being exercised while the trusts of two-fifths are still subsist (1) 6 Madd. 134. A power of sale over property given "during the continuance of the trust” held exerciseable so long as any undivided share was held in trust for an infant.-O. A. S. (2) 110 R. R. 430 (2 K. & J. 709). (3) 113 R. R. 29 (23 Beav. 56). ing; and, if so, why not while the trusts of one-fifth are still subsisting? It is true, that the exercise of the power converts the shares of each person from realty to personalty, but this would have been the result whenever the power was exercised, and it is to be observed, that the exercise of the power defeats the interest of no existing person in the fund or the estate, although it may alter its subsequent course of devolution. it I therefore think that the power is still subsisting, and that may now be exercised. 1858. DE WINTON . THE MAYOR, &c. OF BRECON (1). July 8, 29, 30. v. (26 Beav. 533-557; S. C. 33 L. T. O. S. 296.) Where an Act of Parliament authorizes a corporation to mortgage its tolls, &c. this Court has jurisdiction to appoint a receiver of them, though no such express power is given by the Act. But the receiver over such property ought not to have committed to him any powers of management which ought properly to be exercised by the corporation itself. Where one clause of an Act of Parliament directs specific acts to be done, but which acts would be included in the general terms of a subsequent prohibitory clause, the former clause is not controlled by the latter. An Act of Parliament gave a corporation compulsory powers of purchasing land to make a market. The 29th section required it to sell the surplus not wanted, and to give certain parties a right of preemption, the produce to be applied "to the purposes of the Act." The 30th section gave the corporation power to borrow on debenture, the 32nd power to mortgage or sell any of its land for the purposes of the Act," and the 83rd section provided that the Act should not empower the corporation to sell without the approbation of the Lords of the Treasury: Held, that the 32nd section did not authorize a mortgage of the surplus land for the purposes of the Act, but that it must be sold as directed by the 29th section: Held, also, that a mortgage only of the lands of the corporation required the assent of the Lords of the Treasury. Debenture holders under the Act were to be entitled pari passu. One debenture holder attempted to obtain an advantage over the rest by means of an additional mortgage: Held, that it was invalid. IN 1838, it being deemed expedient to erect a new market in the town of Brecon, the corporation obtained an Act of Parliament enabling it to effect that purpose. This Act (1 Vict. c. xii.) gave to the corporation the usual compulsory powers to purchase the necessary lands, and authorized it to erect the market with the necessary conveniences; but the 29th section "required" the corporation, within seven years after the passing of the Act, to sell the surplus of the land purchased under the Act, and which might not be required, (1) Gardner v. London, Chatham and Dover Rail. Co. (1866) L. R. 2 Ch. 201, 36 L. J. Ch. 323, 15 L. T. 552; Stagy V. Medway (Upper) Navigation Co. [1903] 1 Ch. 169, 72 L. J. Ch. 177, 87 L. T. 705, C. A. Some further pro- |