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(or, in the case of copyholds, the heir of such survivor) are trustees under the will, take the estate on trust for sale, and can sell it (a). It appears to be immaterial, at any rate in the case of freeholds, whether the trust is simply to sell or that "they, the said trustees or the survivor of them, or the heirs and assigns of such survivor, shall sell." In the case of copyholds, however, where there is no mention of assigns in the instrument creating the trust, and the last surviving trustee devises the trust estate, it is open to doubt whether the devisee can carry out the trust for sale (b). Moreover, both as to freehold and copyhold estates, if the original devise or conveyance was made to A. and B. simpliciter, and not to A. and B. and their heirs, it is probable that the real or personal representatives of the survivor could not give a good title (c).

In the case of Powers.-In considering who can exercise a power of sale, it is important to observe the distinction between a bare or naked power, and a power given to trustees who take the legal estate. A bare or naked power is where the settlor has disposed of his property in one direction subject to a power in two or more persons enabling them to divert it in another direction, as in the case of a power of sale given to trustees in a strict settlement (d). Such a power must be construed strictly,

(a) In re Morton and Hallett (1880), 15 Ch. D. 143; 44 & 45 Vict. c. 41, s. 30.

(b) Cooke v. Crawford (1842), 13 Sim. 91.

(c) Mortimer v. Ireland (1847), 11 Jur. 721.

(d) Lane v. Debenham (1853), 11 Hare, 195; Re Bacon, [1907] 1 Ch. 475.

and can only be exercised by the persons who are expressly or by reference designated as donees of the power (e).

On the other hand, where a testator first devises his real estate to trustees and their heirs, and afterwards empowers his trustees or trustee for the time being to sell, the testator must be considered to have contemplated a sale by the person or persons having the legal estate, and consequently the power can be exercised by the last surviving trustee, and after his death by his legal personal representatives, or, in the case of copyholds, by his heir or devisee (ƒ).

With regard to trusts constituted after or created by instruments coming into operation after December 31st, 1881, it is enacted by s. 22 of the Trustee Act, 1893 (g), that "where a power or trust is given to or vested in two or more trustees jointly, then, unless the contrary is expressed in the instrument, if any, creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time being." The effect of this section and of s. 37 of the Trustee Act (which deals with the powers of trustees appointed by the court) is that every power given to trustees which enables them to deal with or affect the trust property is primâ facie given to them ex officio as an incident of their office, and passes with the office to the holders

(e) Townsend v. Wilson (1818), 1 B. & A. 608; Newman v. Warner (1851), 1 Sim. (N.s.) 457; In re Rumney and Smith, [1897] 2 Ch. 351.

(f) In re Cunningham and Frayling, [1891] 2 Ch. 567; In re Pixton and Tong's Contract (1898), 46 W. R. 187; Re Bacon, [1907] 1 Ch. 475.

(9) 56 & 57 Vict. c. 53.

or holder thereof for the time being. Whether a power is so given ex officio or not depends in each case on the construction of the document giving it, but the mere fact that the power is one requiring the exercise of a very wide personal discretion is not enough to exclude the primâ facie presumption. The reliance of the testator or settlor on the individuals to the exclusion of the holders of the office for the time being must be expressed in clear and apt language (h).

If lands are devised to trustees in fee upon trust or with power to sell, and all the trustees disclaim (i) or predecease the testator, so that the legal estate in fee descends to the heir-at-law of the testator, such trust or power cannot be exercised by the heir (k). In such a case it is necessary to have new trustees appointed by the court under s. 25 of the Trustee Act, 1893 (1). The donee of a power of appointing new trustees should not appoint himself either solely or jointly with other trustees; but such an appointment is voidable only, and may be confirmed by the court (m).

Where new trustees have been appointed under the statutory powers conferred by s. 10 of the Trustee Act, or by the court, they have the same powers, authorities, and discretions as if they had

(h) In re Smith, Eastick v. Smith, [1904] 1 Ch. 139.

(i) Whether expressly or by conduct, see In re Birchall (1889), 40 Ch. D. 436.

(k) Robson v. Flight (1865), 4 De G. J. S. 613.

(1) 56 & 57 Vict. c. 53; Nicholson v. Field, [1893] 2 Ch. 511; Sharp v. Sharp (1819), 2 B. & A. 405.

(m) Montefiore v. Guedalla, [1903] 2 Ch. 723.

originally been appointed trustees by the instrument, if any, creating the trust (n).

When the new trustee is appointed out of court, the legal estate can be vested in him by a vesting declaration under s. 12 of the Trustee Act, 1893. When the new trustee is appointed by the court, a vesting order should be obtained under s. 26 of the same Act.

In a case where there are more than two trustees one of the trustees may retire from the trust (0), but in any other case a trustee cannot resign his office except on the due appointment of some successor.



Where there is a trust to sell real estate, the trustees can perform the trust at any time, unless all the beneficiaries, having become sui juris, agree to take the property as realty. Any one of the beneficiaries can insist upon the trust being carried out (p). Even if the trust be to sell with all convenient speed, or to sell within a specified time, such language is directory and not imperative, and a purchaser cannot raise the objection that the time for selling has elapsed (q).

(n) 56 & 57 Vict. c. 53, s. 10 (3), and s. 37.

(0) Ibid. s. 11, unless there is a contrary intention in the


(p) Biggs v. Peacock (1882), 22 Ch. D. 284; In re Tweedie and Miles (1884), 27 Ch. D. 315; In re Douglas and Powell's Contract, [1902] 2 Ch. 296, at pp. 312, 313.

(g) Pearce v. Gardner (1852), 10 Hare, 287.

On the other hand, a trust or power of sale cannot be accelerated. Consequently, if the direction is to sell after the death of A., the trust or power cannot be exercised in A.'s lifetime even with his consent (r).

Rule against Perpetuities. It must be borne in mind, however, that the rule against perpetuities applies to trusts for sale as well as to powers of sale. Thus a future trust for sale is void if it is so framed as not to come into operation until a time which under the limitations of the deed or will may be beyond the period of a life in being and twenty-one years afterwards (s).

No limitation after an estate tail is too remote, and consequently a trust for sale which does not arise until after the determination of an estate tail is not void for perpetuity (t).

With regard to powers of sale, if there is no limit of time expressed for the exercise of the power, it is not on that account void, but must be exercised within the period fixed by the rule against perpetuities, and while the purposes of the settlement (whether made by deed or will) remain unexhausted (u).

As a general rule a power of sale becomes extinguished when, by reason of the expiration or cesser of the limitations contained in the settlement, the absolute interests fall into possession (r).

(r) Lewin, p. 492; Theobald on Wills, p. 424.

(8) Goodier v. Edmunds, [1893] 3 Ch. 455; In re Daveron, Bowen v. Churchill, [1893] 3 Ch. 421; In re Wood, Tullett v. Colville, [1894] 3 Ch. 381.

(t) Heasman v. Pearse (1871), 7 Ch. 282, 283.

(u) Lantsbery v. Collier (1856), 2 Kay & J. 709.

(x) Peters v. Lewes and East Grinstead Rail. Co. (1881), 18 Ch. D., at p. 433.

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