The Revised Reports: Being a Republication of Such Cases in the English ...

adhered to his former opinion and said (p. 552) that he thought that he should be reversing his own judgment in Davis v. Earl of Dysart if he decided this case the other way. A reference to this case will be found at the end of the report of Davis v. Earl of Dysart, see 109 R. R. p. 481, and under the circumstances it is thought that any further report of this case would be practically useless.-O. A. S.]

SABIN. HEAPE (1).

(27 Beav. 553-561; S. C. 29 L.. J. Ch. 79; 5 Jur. N. S. 1146; 1 L. T. N. S. 51; 8 W. R. 120.)

Under a direction to pay debts, the executors of the original executor sold the testator's real estate twenty-seven years after the testator's death, and nine years after the death of the executor: Held, that a good title could be made under the implied power of sale, and that the vendors were not bound to state whether there existed any debts which made a sale necessary. Costs of a special case held payable by the

defendant.

THIS was a special case for the opinion of the Court, upon the following state of circumstances:

Thomas Fereday made his last will, dated the 3rd of March, 1832, which commenced as follows: "First I direct that all my just debts, funeral expenses, and the costs and charges of proving and executing this my will, shall be paid and discharged; and subject thereto, I give, devise and bequeath unto my son Edward Fereday all those my freehold lands and hereditaments situate at West Bromwich, in the county of Stafford, together with all the personal estate, upon trust to pay the rents and profits of one-fifth part of the real and personal estate to my daughter Ann Sabin, for her separate use for life, and after her death, to convey it to her two children." And he declared similar trusts. as to two other fifths for two other children, &c., and he gave the remaining two-fifths to Edward Fereday, his heirs, &c.

The will contained the following proviso:

"Provided also, and I do hereby further declare, that it shall be lawful for Edward Fereday, at any time or times hereafter, at his discretion, to make partition, or dispose of, either by way of absolute sale or in exchange for other hereditaments, all or any part of the said freehold hereditaments and premises hereinbefore devised, for such price or prices in money, or for such equivalent in hereditaments, as to him shall seem reasonable. And I do hereby declare, that for the purpose of effecting *any such partition, sale or exchange, it shall be lawful for Edward Fereday, his heirs, executors or administrators, by any deed or deeds, sealed and delivered by them or him, in the presence of

(1) In In re Tanqueray Willaume and Landan (1882) 20 Ch. D. 465; 51 L. J. Ch. 431, 46 L. T. 542, the Court of Appeal laid down a new rule, viz. that in the absence of special circumstances upon the sale of real estate under an implied testamentary power

of sale to pay debts of the testator,
inquiry should be made by the pur-
chaser whether any debt still remains
unpaid unless the sale was made
within 20 years after the death of the
testator. And see now the Land
Transfer Act, 1897.-O. A. S.

and attested by one or more credible witnesses, absolutely to revoke, determine and make void all and every or any of the uses, trusts, powers, provisoes and declarations in this my will expressed and declared of and concerning the hereditaments so proposed to be partitioned, sold or exchanged," and to declare new uses. And he then declared, that the receipts of " Edward Fereday, his heirs, executors or administrators," should effectually discharge the person or persons paying the same from being answerable for the misapplication, or bound to see to the application of the money therein mentioned to be received, and that Edward Fereday, his heirs, executors or administrators, should lay out the money to arise by such sale, &c. in the purchase of freehold estates of inheritance, and should settle them on like trusts.

The testator empowered Edward Fereday to appoint "any person or persons to be a trustee or trustees in his stead or place," and he appointed him sole executor.

The testator Thomas Fereday died in March, 1832, and Edward Fereday proved his will.

Edward Fereday, by his will made in 1848, devised and bequeathed all trust estates vested in him unto the plaintiffs Frederick Fereday Sabin and William Henry Sabin, their heirs, &c., upon trust to hold or dispose of them in the manner in which they ought to be held or disposed of pursuant to the said trusts; and he thereby appointed them his executors.

Edward Fereday died in July, 1850, and his will was proved by the plaintiffs.

"Since the testator's decease, the persons beneficially entitled to the income of the testator's real estate have, by permission of the plaintiffs, been in the receipt thereof."

By an agreement in writing, dated the 1st of May, 1859, and made between the plaintiffs of the one part, and the defendant of the other part, the plaintiffs agreed to sell and the defendant agreed to purchase the fee simple of the piece of land situate in the parish of West Bromwich, devised by the will of the first testator Thomas Fereday, for the sum of 1697. 8s.

"The plaintiffs declined to state, in answer to the defendant's requisitions in this behalf, whether any of the debts of the testator Thomas Fereday remained unpaid.

"The defendant was a willing purchaser, but declined to complete his purchase, alleging that the plaintiffs had no power to sell the piece of land, either as such trustees or as such legal personal representatives of the testator Thomas Fereday as aforesaid."

"The plaintiffs insisted, that they would make a good title to

the land, either as trustees under the express power of sale contained in the will of Thomas Fereday, or as executors under the implied power of sale created by the charge of debts contained in his will."

The questions for the opinion of the Court were:

1st. Whether the plaintiffs can make a good title to the land as trustees of the said will of the testator Thomas Fereday, under the express power of sale therein contained.

2nd. Whether the plaintiffs can make a good title to the land, as such executors and legal personal representatives as aforesaid, under the implied power of sale for the payment of debts created by the will of the testator Thomas Fereday.

3rd. By whom the costs of the special case ought to be borne.

Mr. Speed, for the vendors, [cited Elliot v. Merryman (1), Shaw v. Borrer (2), Ball v. Harris (3), Gosling v. Carter (4), Mather v. Norton (5), Robinson v. Lowater (6), Johnson v. Kennett (7), Page v. Adam (8), Eidsforth v. Armstead (9); and contended that the lapse of time from the testator's death did not affect the power and authority to sell; for in Forbes v. Peacock (10), twenty-five years, and in Wrigley v. Sykes (11), thirtythree years had elapsed from the testator's death.

That debts might still exist, and that after the decision in Knatchbull v. Fearnhead (12), it was difficult to say at what period, however remote, a claim against the estate might not arise].

Mr. E. F. White, for the purchaser, [contended that the lapse of twenty-seven years made it the duty of the purchaser to inquire whether there were any debts remained unpaid, and the vendors were bound to give some satisfactory answer to such a requisition. He cited Stroughill v. Anstey (13), and pointed out that there was no unexplained lapse of time in the cases cited for the vendor as there was in this case, Shaw v. Borrer (2), Ball v. Harris (3), Johnson v. Kennett (7). He also referred to Storry v. Walsh (14), Doe d. Jones v. Hughes (15)].

THE MASTER OF THE ROLLS:

I will not trouble the plaintiffs to reply in this case, I have

(1) Barnard. 78.

(2) 44 R. R. 115 (1 Keen, 559). (3) 48 R. R. 90 (4 My. & Cr. 264). (4) 66 R. R. 226 (1 Coll. 644). (5) 91 R. R. 315 (21 L. J. Ch. 15). (6) 104 R. R. 115 (5 D. M. & G. 272).

(7) 41 R. R. 145 (3 My. & K. 624). (8) 55 R. R. 70 (4 Beav. 269).

(9) 110 R. R. 254 (2 K. & J. 333).
10) 65 R. R. 485 (1 Ph. 717).
(11) 111 R. R. 113 (21 Beav. 337).
(12) 45 R. R. 230 (3 My. & Cr. 122).
(13) 91 R. R. p. 224 (1 D. M. & G.
p. 654).

(14) 104 R. R. 527 (18 Beav. 559).
(15) 86 R. R. 252 (6 Ex. 223).

SABIN

HEAPE.

[ 556 ]

[ 557 ]

[559]

SABIN v.

HEAPE.

[ *560 ]

[ *561]

taken the pains to look through and consider the authorities which have been cited in this case, and it is due to Mr. White to say, that I concur in thinking that the point principally urged by him is one of very great importance. In all probability there must be some limit in these cases and some period at which the Court will say, that the debts must have been paid, and when it would be very difficult to make a good title upon a sale made to satisfy a charge of debts on real estate contained in a will. There may be a series of representations from executor to executor during a great number of years and a long enjoyment of the estate by the parties beneficially entitled; and in cases to which these observations apply, it would seem, that the power could not be properly exercised. However, I do not now pretend to fix what ought to be the limit, or where the line is to be drawn; but I am satisfied, that it does not exist in a case like the present, where no more than twenty-seven years have elapsed since the death of the testator.

I have had many cases where executors have fully believed that all the debts had been paid, and where, having taken all the steps possible to ascertain whether there were any debts, they have divided the residue amongst the legatees; yet, notwithstanding all this, debts have afterwards appeared which did not exist at the death of the testator, but which arose subsequently out of obligations entered into by him. These have been so numerous, that I feel sure that a very liberal term ought to be allowed to executors for the exercise of such a power.

The cases have decided that where an executor sells under such a power, he is not bound to answer the question, whether or not there are any debts of the testator existing or not, and although the case of Forbes v. Peacock may be open to the observations made upon it by Mr. White, yet this is clear, that a long period *of time had elapsed from the death of the testator before the sale of the estate, and yet there Lord LYNDHURST thought, that an answer to the question, whether there were any debts still subsisting, could not be enforced. I am of opinion that this principle applies in the present case, and that it would unsettle titles and the rules of this Court, if I were to decide, that where there is a clear charge of debts, the executor has not power to sell and that the purchaser is not relieved from the obligation to see to the application of the purchase-money. If this were a bill for specific performance, I should make a decree for the plaintiff, and I must act similarly in a case for my opinion. I am of opinion that the legal personal representatives have authority to sell this property, and I will answer the second question in

the affirmative.

The defendant must pay the costs, for if this were a bill for specific performance I should make the costs follow the event, and I must do so here.

TURNER. HAND (1).
(27 Beav. 561-564.)

A solicitor delivered a general estimate of costs due to him, without specifying the particulars. The client signed a memorandum agreeing to the statement, and requesting A. B. (to whom he had given his acceptance), to pay the amount. A bill filed by the client more than three years afterwards, to obtain a delivery and taxation of the bill of costs, was dismissed with costs.

THE plaintiff Marcus William Turner had, on the introduction of the defendant Mr. Hand, employed Mr. Story to act as the solicitor of the plaintiff and his family.

In May, 1855, Mr. Story sent to the plaintiff an estimate of the costs due to him in respect of the business done, and which was as follows:

"List of actions, Chancery and general business conducted for W. S. Merryweather, Esq., and family, and estimated costs on same, made up to 30th May, 1855.

Montge J. Turner ats. Mathews

Marcus W. Turner ats. Crawley

M. W. Turner and M. J. Turner ats. Dr. Walker, inclusive of common law business