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But when it is clear, either from the express language of the instrument creating the power, or by necessary implication, that the settlor created the power for the purpose of division, because it is more convenient to make a division by selling the property and dividing the money, the power may be exercised after the estate is "at home" (i.e., after absolute interests have vested in possession); provided that it is exercised in reasonable time (y). When the beneficiaries have not elected to retain the property in specie, then subject to the rule against perpetuities the duration of the power is a mere question of the intention of the donor of the power (z). Thus a power for trustees to sell during the life of a lunatic is not determined by the lunatic becoming absolutely entitled (a).

An unlimited collateral power of sale in a strict settlement by which estates tail are created is good (b), but if once an estate in fee has been acquired by anyone claiming under the limitations of the settlement, the power becomes extinct (c). The rule against perpetuities does not apply to property given to charities. Consequently a power

(y) Peters v. Lewes and East Grinstead Rail. Co. (1881), 18 Ch. D. 429; In re Lord Sudeley and Baines & Co., [1894] 1 Ch. 334; In re Dyson and Fowke, [1896] 2 Ch. 720.

(z) In re Cotton's Trustees and the School Board of London (1882), 19 Ch. D. 624.

(a) In re Jump, [1903] 1 Ch. 129. As to what amounts to an effectual election so as to extinguish a trust or power of sale, see In re Douglas and Powell's Contract, [1902] 2 Ch., at p. 312.

(b) Waring v. Coventry (1833), 1 My. & K. 249; In re Lord Sudeley and Baines & Co., [1894] 1 Ch., at p. 339.

(c) Cole v. Sewell (1843), 4 Dr. & W., at p. 32.

given to trustees of one charity to transfer its property in certain events to another charity need not be limited in time (d).

So far we have discussed express powers of sale, both as regards the persons to exercise them and the time of exercise.

But such a power may also be implied.



Land Transfer Act.-In the case of persons dying after January 1st, 1898, when the Land Transfer Act came into operation, real estate which is vested in any person without a right in any other person to take by survivorship, devolves on his death, notwithstanding any testamentary disposition, and becomes. vested in his personal representatives or representative from time to time, as if it were a chattel real vesting in them or him (e).

Although the marginal note to s. 1 of the Land Transfer Act speaks of the devolution of the legal interest in real estate, the Act clearly applies to equitable as well as legal estates (f). The effect of the statute appears to be that freehold land which is vested in a person solely for a devisable estate, whether legal or equitable, and copyhold land which is vested in a person solely for a devisable estate

(d) In re Tyler, [1891] 3 Ch. 252.

(e) Land Transfer Act, 1897, s. 1 (1).

(f) In re Harrowby and Pain's Contract, [1902] W. N. 137 ; In re Somerville and Turner's Contract, [1903] 2 Ch. at p. 588.

which is equitable only (i.e., where he has not been admitted tenant on the court rolls) devolve to and vest in the personal representatives in the same way as chattels real.

The personal representatives have an implied power from the nature of their office to sell real estate so devolving on them for the payment of the testator's debts, and to satisfy the costs and expenses incurred in the administration of his estate. But unlike chattels real, which may be sold by one of two or more executors without the concurrence of the others (g), it is not lawful for some or one only of several joint personal representatives without the authority of the court to sell or transfer real estate (h). The Land Transfer Act makes no provision for the case of one of several executors being absent or unable, from illness or other cause, to prove the will, and the executors who have proved the will cannot convey the legal fee simple without the concurrence of an executor who has not proved (i). If, however, the other executor renounces probate, it is presumed that his concurrence is not necessary, but the renunciation, in order to be effectual, must be filed (k).

English real estate or chattels real do not vest in persons who are not entitled to probate in this

(g) Simpson v. Gutteridge (1816), 1 Madd. 616. The rule probably applies to administrators. See Williams on Executors, p. 821.

(h) 60 & 61 Vict. c. 65, s. 2 (2).

(i) In re Pawley and London and Provincial Bank, [1900]

1 Ch. 58.

(k) In the Goods of Morant (1873), L. R. 3 P. & D. 151.

country, and therefore a good title can be made by the general executors of a will without the concurrence of special executors appointed in respect of the testator's foreign assets (1).

Assent. The power of sale of the personal representatives is, of course, extinguished if they have assented to a devise of the land or conveyed it to the devisee, or, in the case of an intestacy, have conveyed it to the heir-at-law (m). It has been held that a parol assent by executors is sufficient (n). An assent in writing does not require a stamp (0).

If the personal representatives are in possession of the land, a purchaser may safely assume that there are unpaid debts, and that there has been no assent or conveyance to the devisee or heir.

On the other hand, if the devisee or heir is in possession, the onus will lie on the personal representatives to show that their power of sale has not been determined (p).

Charge of Debts and Legacies.--In the case of persons who died prior to January 1st, 1898, the power of the personal representatives to sell depends. on whether debts or legacies are charged on real estate, either by the express language of the will or by necessary implication.

(1) In re Cohen's Executors and London County Council, [1902] 1 Ch. 1.

(m) Cf. Land Transfer Act, 1897, s. 3. It is presumed that the provisions as to assent do not apply to the case of intestacy. See Brickdale and Sheldon, p. 289.

(n) Re Pix, [1901] W. N. 165.

(0) Kimp v. Inland Revenue, [1905] 1 K. B. 58.

(p) See Brickdale and Sheldon, p. 271.

A direction for payment of the testator's debts creates a charge for such payment on his realty (q), unless there is a subsequent charge on a specific part of his real estate which overbears the implied charge, on the principle, expressum facit cessare tacitum (r).

A mere authority to pay debts, as opposed to a direction, does not create a charge on real estate (s) nor, apparently, does a direction by the testator that his debts shall be paid by his executors (t).

Where there is a direction that the executors shall pay the testator's debts, followed by a gift of all his real estate to them either beneficially or on trust, all the debts will be payable out of all the estate so given to them (u). If there is an express charge of debts on real estate it will not be restricted, even though a fund be subsequently mentioned out of which debts are to be paid (v). With regard to the implied charge of legacies, it has been established by the rule in Greville v. Browne (y) that if there is a gift of legacies followed or preceded (:) by a devise of "the residue of my real and personal estate," or of "my real and

(4) Forbes v. Peacock (1840), 11 Sim. at p. 160.

(r) Douce v. Lady Torrington (1833), 2 My. & K. 600; Corser v. Cartwright (1873), 8 Ch. at p. 975.

(8) In re Head's Trustees and Macdonald (1890), 45 Ch. D.


(t) Brydges v. Landen, (1788), cited 3 Ves. 550.

(u) In re Tanqueray-Willaume and Landau (1882), 20 Ch. D.


(x) Wrigley v. Sykes (1856), 21 Beav. 337.

(y) (1859), 7 H. L. Cas. 689.

(2) Elliott v. Dearsley (1880), 16 Ch. D. 322.

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