Page images

personal estate not otherwise disposed of" (a), the legacies are charged on the residue, even though interests in land have been previously given by the will (b).

With regard to specifically devised lands, the question must always be one of intention, but the rule is that the presumption is against an intention to charge lands specifically devised, and that a mere charge" on all my lands" is not sufficient to rebut that presumption (c).

Lord St. Leonards' Act.-Lord St. Leonards' Act, 1859 (d) confers on devisces in trust to whom a testator dying after August 13th, 1859, has devised real estate for the whole of his estate or interest therein (e) charged with the payment of debts or legacies, a power to raise the same, notwithstanding that the will does not contain an express power of sale. By s. 16 of this Act, if a testator creating such a charge shall not have devised the hereditaments so charged in such terms that his whole estate or interest shall become vested in any trustee or trustees, a like power is conferred on his executors, unless there is a devise in fee or in tail or for the testator's whole estate and interest charged with debts or legacies to a single person, or to a number of persons

(a) In re Bawden, [1894] 1 Ch. 693.

(b) Bench v. Biles (1819), 4 Madd. 187.

(c) Conron v. Conron (1858), 7 H. L. Cas. 190; but cf. Bank of Ireland v. M Carthy, [1898] A. C. 181.

(d) 22 & 23 Vict. c. 35, ss. 14, 15.

(e) See In re Adams and Perry's Contract, [1899] 1 Ch. 554.

[ocr errors]

as joint tenants or tenants in common (ƒ). The power conferred on executors does not extend to an administrator with the will annexed (g).

Purchasers or mortgagees are not bound to inquire whether the powers conferred by ss. 14, 15, and 16 of the Act have been duly exercised by the persons acting in virtue thereof (h).

Thus, in the case of an executor selling under s. 16, a purchaser is not, as a rule, entitled to inquire whether the debts of the testator have been paid. If, however, twenty years have elapsed since the testator's death, there is a presumption of law, known as "the rule in Re Tanqueray-Willaume and Landau" (i), that all debts have been paid, and the purchaser is put on his inquiry whether any debts in fact remain unpaid in respect whereof the executors can exercise their statutory power of sale.

The rule in Re Tanqueray-Willaume and Landau does not apply to the case of the sale by an executor of leasehold property which vests in, and can be sold by him virtute officii. In such a case a purchaser is not entitled to inquire whether debts have been paid, even after twenty years, unless the leaseholds are actually in the possession of a legatee (k). But if the purchaser has actual notice that all debts

(f) See proviso in s. 18; In re Barrow-in-Furness Corporation and Rawlinson's Contract, [1903] 1 Ch. 339.

(g) In re Clay and Tetley (1880), 16 Ch. D. 7.

(h) Section 17.

(i) (1882), 20 Ch. D. 465.

(k) In re Whistler (1887), 35 Ch. D. 561; In re Venn and Furze's Contract, [1894] 2 Ch. 101.

have been paid he cannot safely accept a title from the executors (1); and in one case where the vendors of leaseholds declined to convey as personal representatives, and the assignment was ultimately taken from them as trustees, it was held that the purchaser had not acquired a good title (m).

Other Implied Powers.-If there is no charge of debts or legacies on real estate, a mere direction that the land is to be sold without saying by whom, does not in the case of a testator who died before January 1st, 1898, entitle the executors to sell unless it is clearly implied that the produce of the sale is to pass through their hands in the execution of their office (n).

Where the purposes of a will could not be effected without a conversion of the whole estate, a direction to "pay and divide" was held to imply a trust for sale (0). But where there is an express power of sale, or where it is apparent that the testator contemplated that the property would be enjoyed in specie, a trust to divide does not imply a trust for sale (p).

In the case of settlements, a power of sale is implied by a power to vary securities, if there is a declaration that purchased realty shall be considered

(1) In re Verrell's Contract, [1903] 1 Ch. 65.

(m) Re King and Owen (1906), 121 L. T. Newsp. 341. The trust for sale had not arisen.

(n) Bentham v. Wiltshire (1819), 4 Madd. 44 ; Tylden v. Hyde (1825), 2 Sim. & St. 238 ; In re Sankey, W. N. (1889) 79. (0) Mower v. Orr (1849), 7 Hare, 473.

(p) Cornick v. Pearce (1849), 7 Hare, 477; In re Wintle (1896), 65 L. J. Ch. at p. 868.

as personalty (q), or where the context shows that "securities" means "investments" (r), and it is presumed that a power to vary investments will in any case imply a power of sale if land is an authorised investment, or becomes subject to the settlement by virtue of a covenant to bring in afteracquired property (s).

Trustees and executors and other persons authorised or required by the Finance Act to pay the estate duty in respect of real estate have a statutory power of sale for the purpose of raising the duty, whether the property is or is not vested in them (t).

If a trustee has applied the trust funds in the purchase of real estate where such an investment was not authorised by the settlement, a purchaser from the trustee should require the concurrence of one of the beneficiaries, since the beneficiaries may elect to adopt the breach of trust and retain the property as realty (u). But such concurrence is not necessary if some of the beneficiaries are incapable of electing (r).



In the case of express trusts or powers, the mode of sale authorised must be followed. If a sale by

(1) Tait v. Lathbury (1865), L. R. 1 Eq. 174.

(r) Re Rayner, [1904] 1 Ch. 177.

(s) In re Garnett, Orme and Hargreave's Contract (1883), 25 Ch. D. 595; Re Gent and Eason, [1905] 1 Ch. 386.

(t) 57 & 58 Vict. c. 30, s. 9 (5), and see Perrins v. Bellamy, [1899] 1 Ch. 799.

(u) In re Patten and Edmonton Union (1883), 52 L. J. Ch. 787; Power v. Banks, [1901] 2 Ch. at p. 496.

(x) In re Jenkins and Randall's Contract, [1903] 2 Ch. 362.

auction is directed at a sum mentioned in the instrument creating the trust, a sale by private contract at that sum must not be made, and vice versâ (y); and when the sale is by auction, due notice and advertisements of the sale should be made (z). If the trust does not direct the mode of sale, it may be made either by public auction or private contract, and s. 13 of the Trustee Act, 1893, which re-enacts s. 35 of the Conveyancing Act, provides as to instruments coming into operation after December 31st, 1881, that "when a trust for sale or a power of sale of property is vested in a trustee, he may sell, or concur with any other person in selling, all or any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title, or evidence of title, or other matter as the trustee thinks fit, with power to vary any contract for sale, and buy-in at any auction, or to rescind any contract for sale, and to resell without being answerable for any loss" (a).

A power to sell leasehold property comprised in one lease may be exercised, on a sale of the property in lots, by granting underleases for the whole term, less one day, at an apportioned rent (b).

A power to sell means, in the absence of any context, a power to sell for money, and a person who exercises such a power is bound to sell for

(y) Daniel v. Adams (1764), Amb. 495.
(z) Ord v. Noel (1820), 5 Madd. 438.
(a) 56 & 57 Vict. c. 53, s. 13 (1), (3).

(b) Judd and Poland and Skelcher's Contract, [1906] 1 Ch.

« EelmineJätka »