the inclination of my opinion, they would not have desired it to be formally given and I postponed my judgment upon that account. I never had much difficulty or indeed any doubt with regard to the case. It is attended with very peculiar circumstances; and the case of the Plaintiff in some respects may be considered rather hard: but the question is, whether under the circumstances, in which it comes before the Court, they can be entitled to any relief. The assignment was not kept a secret; for it is stated in the second report; being laid before the Master by Mr. Beresford. So the Court had full

notice of the claim. They did not at that time think fit [* 511] *to file any bill: whether advised, that their right would be attended to, I do not know: but they did prefer a petition; which was dismissed; Lord Thurlow being of opinion, that Mr. Beresford was not entitled under the circumstances to any interest: but that the whole should be settled, with a contingent interest to the husband, in case he should survive his wife (which is liable to the Plaintiff'); and that all the rest should be to her use, excluding him from any benefit.

It was insisted for the Plaintiff, that whatever is the rule of the Court as to the equity of the husband to assign for valuable consideration his wife's fortune, at least it must be supposed he has a right to assign the dividends accrued; and farther it was insisted, that by the rules of this Court a husband entitled to an equitable estate in right of his wife may for valuable consideration assign it in such a manner as to be binding upon his wife and her issue; and several cases were cited. All the cases upon the subject, except some since decided, are comprised in Mr. Cox's note to Bosville v. Brandder, 1 P. Will. 459, and, no doubt, in almost all the cases the Court in laying down this equity and enforcing it did not mean to determine, that an assignee for valuable consideration should be bound by that equity (1). If that failed, it was insisted, that there is no case, in which the Court has gone the length of saying, that the husband maintaining his wife should not be entitled to the interest of her fortune; and Sleech v. Thorington, 2 Ves. 562, was mentioned; in which, though it was not determined, the Master of the Rolls seems to be of that opinion; and he states a case, which I should desire to be more minutely examined, where the husband leaving her totally unprovided for, the Court will lay hold of the fund to maintain her. It remains to see, whether what is laid down there by the Master of the Rolls is well founded. I conceive, he did not attend to the situation of a person, who runs away with a ward of this Court; and I do not apprehend, that when he lays it down so generally, he meant to apply it to such a case as a person running away with a ward of the Court of very tender years, and then insisting upon this right. That is the present case. It comes to be considered, what is this equity, of which we have heard so much. It is not to be denied, that great Judges, Lord Hardwicke and Lord Thurlow,

(1) Post, vol. iv. 19, and the note, v. 739. Elliott v. Cordell, 5 Mad. 149

have intimated difficulties, whether an assignment for valuable consideration might not support the right of the assignee, or at least evade this equity. I have looked into almost every case; and have never seen it determined, that any such equity does exist in favor of the assignee. It is certain, that the Court has avoided deciding the contrary; and in Worrall v. Marlar, and Bushnan v. Pell, in the note 1 P. Wms. 459, by Mr. Cox, to whom the public are very much obliged for his great pains in collecting all those cases into a small compass, Lord Thurlow does hold that doctrine; but does not say, that it was ever so decided. Mr. Cox has also subjoined Mason v. Wenman before Lord Northington in 1765; who follows Lord Hardwicke in Jewson v. Moulson, (a) 2 Atk. 417, in holding that an assignment even for valuable consideration of the property of the wife shall not be available in equity to defraud the wife and children of the settlement to be made by the husband, before he can have any part of it. The words in Atkyns give a reason that is convincing: that it would put an end to the equity of the wife. Lord Hardwicke and Lord Northington have therefore given decided opinions, that an assignment of all the fortune even for valuable consideration will not avail against the wife's equity. But it will be answered, this is different: here, it will be said, is only an assignment of the whole as security for an inconsiderable part of it. Upon the best consideration I am of opinion, that if it was res integra, and it came on not upon a bill to undo a settlement already made, the Court has a complete right, if they think fit under all the circumstances, to give to the wife and children any part or the whole of the fortune to which she may be entitled. Povey v. Brown, Pre. Ch. 325, does not satisfy me. It is a strange case, and directly contradicted by the two cases before Lord Hardwicke and Lord Northington. The consequence is, that when this came before the Lord Chancellor in 1781, it was for him to consider, whether there was any right in the assignee of the husband; of which assignment there was certainly knowledge; and he was of opinion, there was no such right. The question now is, whether I am called upon to break in upon that. I confess, if I could, I should have been glad to have made some decree in favor of the Plaintiffs, and to have given them some share of the profits, upon the credit of which Beresford had lived, and was enabled to make advances in favor of his wife and children: but all that was fully before Lord Thurlow; and he did not think fit to attend to that claim. I am of opinion, the decree having declared, the wife and her issue ought to have a settlement of all this property made upon them, was not contradictory to any rule, the Court had laid down; and even if it was competent to me, I should feel great difficulty before I could undo it. As it stands, I am of opinion, I cannot declare any right to the Plaintiff in any share of that part of the

[*513]

(a) See Cape v. Adams, 1 Dessaus. 567, which the Court say had many circumstances attending it that Jewson v. Moulson had.

wife's fortune, that has been settled under the decree of Lord Thurlow; who had all the circumstances before him.

Let the bill, so far as it seeks to impeach the settlement made under the decree of 1791, be dismissed, with liberty for the Plaintiff to apply, in case Benjamin Beresford shall survive his wife (1).

1. FOR a report of an earlier proceeding in this cause, see 3 Brown, 366. 2. As to the right of a feme coverte to a provision, in respect of any interest under the control of Equity, proceeding from her, as against the assignee of her husband, see, ante, the note to Burdon v. Deane, 2 V. 607, and notes 6, 8, 9, to Pybus v. Smith, 1 V. 189.

WARNEFORD v. THOMPSON.

[ROLLS.-1797, AUGUST 4.]

PURCHASER decreed to take a title under an obscure will, amounting to a power to sell: the legal estate not being given descends to the heir till execution of the power: and then passes to the vendee. (a)

JOHN WARNEFORD by his will, appointing his wife and Peter Ducar executors, gave to his wife 8001. and all his plate and linen, and all other his household furniture of every kind, and live and dead stock of what sort soever, upon condition, that she renounced all dower or thirds and every other claim to his land, goods and property, except such as were devised to her. Then after several pecuniary and specific legacies to his children the testator proceeds thus: "I will that all and all other the residue of my property and fortune whether arising from moneys in hand or from debts due to me and all my lands and houses whether freehold or copyhold bonds mortgages moneys in the public funds and all other securities whatsoever which I shall possess or be entitled to shall continue to be held or shall otherwise be disposed of in such manner and security as my executrix and executor shall think most proper and conducive to the fulfilling the above purposes and those hereinafter mentioned in their truest intent and for this purpose I do hereby give to my said executrix or executor that is to say to either of them as shall be thought most advisable in law all and every my copyhold lands and premises in trust for the said uses and purposes that is to say it is my desire that respect being first had to the aforesaid directions and

(1) Post, Macaulay v. Philips, Franco v. Franco, vol iv. 15, 515; ante, Stevens v. Savage, vol. i. 154, and the notes.

(a) A purchaser is not compelled to take a doubtful title. 2 Sugden, Vendors, 183, 184 (6th Amer. from 10th Lond. ed.); Ten Broek v. Livingston, 1 Johns. Ch. 357; see, ante, note (a) to Cooper v. Denne, 1 V. 565. But he will not be permitted to object to a title on account of a bare possibility. But, in many cases, Courts of Equity have compelled a purchaser, upon their own opinion, to accept a title depending upon questions of great nicety; and the present case is classed among these by Sir Edward Sugden. Ibid. 181. As to the construction of powers to sell under wills, see 2 Story, Eq. Jur. § 1061-1064.

bequests the profits and interest arising from all my moneys and securities and the rents of all my lands and houses or the interests arising from such sums as such lands and houses or any

of them shall be sold for if my said executrix and exec- [* 514] utor shall think it most advisable to dispose of them or any of them shall be regularly paid to my wife Susannah during her natural life to be faithfully expended at her discretion for the use and service of herself and for the clothing maintenance and education of all such my children by her as shall not have attained to the age of twenty-one years or who being arrived at that age shall with the mutual consent of my said wife and of such son or daughter continue to contribute to the general expense of the family a sum equal to the interest received from the sum hereby devised to them in the former part of this my will nevertheless if it shall at any time seem good to my wife Susannah to marry again after my decease I do in such case will and desire my aforesaid executor alone to direct the payment of all rents and interest arising as before mentioned or herein intended to be described for the sole use and benefit of my children only and that equally of them all and the same good office I will and intreat him to perform in case the death of my wife Susannah shall happen before my youngest child shall have attained to the age of twenty-one years but nothing herein mentioned relative to the future marriage or death of my wife is to be understood so as to contradict or invalidate the disposition or to set aside any of the bequests contained in the first part of this my will and as for the several principals or sums of money lands or houses securities or moneys from which the above mentioned profits and interests shall arise I do direct that after the second marriage or death of my wife Susannah and the attainment of twenty-one years by my youngest child by her and the payment or lapse of all the aforesaid bequests that they be each and all of them divided and inherited equally share and share alike by and between all my said children and their proper representatives if it shall so happen which may God forbid that the death of all my children and the lawful issue of any shall take place before the death of my wife Susannah I then leave to her during the remainder of her life and after her death equally between her heirs and my executor and his heirs all the above remaining property principal and interest for ever."

The testator died; leaving John Warneford, his eldest son and heir at law, under the age of twenty-one, and Edward, his

youngest son and heir according to the custom of the [*515] manor, of which the copyhold estate was held, and nine

other children. The executrix and executor entered into a contract with the Defendant to sell to her part of the testator's real estate consisting both of freehold and copyhold. Objections being made to the power to sell, the bill was filed for a specific performance; and the Master having reported, that no good title could be made, the question came on upon exceptions to the report.

Mr. Grant, for the exceptions, said, there was a clear power of

sale; and it was incumbent on the Defendant to show the objection.

Mr. Piggott for the report. It is incumbent upon the Plaintiffs to make out a good title. It is sufficient for the purchaser, that there is a cloud upon it, according to Shapland v. Smith, 1 Bro. C. C. 75, and Cowper v. Deane, 4 Bro. C. C. 80; ante, Vol. I., 565. The executors have no legal estate in the freehold; and the copyhold estate is given to them expressly for the purposes of the will; and as to their power to sell, it is a very obscure will; upon which an eminent conveyancer says it is unsafe for a purchaser

to rest.

MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. I am clearly of opinion, there is a power to sell. It is true, there is no estate devised to the Plaintiffs in the freehold estate: but there is a power to sell. Till that power is executed, the estate descends to the heir at law; but as soon as the power is executed, the legal estate is in the vendee. No argument could have been raised, if the devise, that follows the power to dispose, had not been confined to the copyhold estate. There is a clear power to the executors to dispose. The exceptions must be allowed, and the contract performed (1)

A POWER of sale, however explicit, does not of itself give the legal property. Where a man directs his executors to sell, till the sale is effected the land descends to his heir at law, and he may enter. Hilton v. Kenworthy, 3 East, 557. And to enable executors to make a title to a purchaser, the power of sale must either have been expressly given to them, (Bentham v. Wiltshire, 4 Mad. 49,) or it must be necessarily implied, from a direction that the produce of the sale shall be applied by the executors in the execution of their office: Tylden v. Hyde, 2 Sim. & Stu. 241: the implication will not arise merely because an estate has been given to minors, with a direction (which during their minority they could not comply with) to sell for the payment of legacies; for, it is not an universal proposition that, when no other person is authorized, or competent, to sell, then the executors have a power of sale; and clearly no implication can be raised in opposition to an express devise: Patton v. Randall, 1 Jac. & Walk. 196: but, in the absence of devise to any specified person, if a testator directs his lands to be sold, not saying by whom, and that the money shall be distributed, and appoints an executor, there, it seems, the sale ought be made by the executor. Carvill v. Carvill, 2 Cha. Rep. 304; Hyer v. Wordale, cited in 2 Freem. 135: if no executor had been named, the sale must have been made by the heir, upon whom the legal estate descended, but coupled with a trust. Pitt v. Pelham, 2 Freem. 135; Locton v. Locton, 2 Freem. 136. If the devisor named an executor, but such executor died before the sale was effected, it seems not clearly settled whether the sale should be made by the representative of the executor, or by the heir of the devisor: : compare Auby v. Doyle, 1 Cha. Ca. 180, with Tenant v. Brown, ibid.

(1) Post, Balfour v. Welland, vol. xvi. 151; Co. Lit. 236 a; see Mr. Butler's note, 150; Hilton v. Kenworthy, 3 East, 553; Sowarsby v. Lacy, 4 Madd. 145, Sug. Pow. 316; Vend. & Purch. 5th. edit. 443, &c.