1804.

Dozd. WHITE against SIMPSON.

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ments, from the time of my decease; and also to pay one other annuity of 50l, to my sister Mrs. Dickenson, for her life, by half yearly payments, for her sole and separate use, &c. And from and after payment of the said annuities, then in trust out of the said rest and residue of the said rents and profits, to pay to my brother Thomas White, and my nephew, his son, Charles White, and Peter Holme, and the survivor of them, and the executors, &c. of such survivor, the sum of 800l. to be by them paid and applied to the sole use and benefit of the said children of my said brother Willium, in such manner and proportion, and to and for such uses, &c. as they shall think best. And from and after payment of the said annuities, and the said sum of 800l. I give and devise my said estates in London and Middlesex last mentioned, to my brother William for life, remainder to his eldest son William for life, remainder to his second son Samuel for life, remainder to his third son Charles for life, remainder to his youngest son John for life, remainder to my brother Thomas White for life, and after his decease to his son, my nephew, Charles White (the lessor of the plaintiff) and his heirs male; and for want of such issue to my right heirs for ever. And I do hereby give and grant unto the said Mr. Hyatt, Mr. Ferrand, and Mr. Syddall, and the survivor of them, and the executors and administrators of such survivor, full power and authority to grant any building lease and leases, or any other lease and leases, as often as there shall be occasion, of the said estates so devised to them in trust as aforesaid, or any part thereof, for any number of years; so as such lease and leases so to be granted, be made for the most or best rent that can be had or got for the same, without any fine or income. And I hereby direct, that so long as the said Mr. Ferrand and Mr. Syddall shall act in the said trust, they shall be paid or allowed every year the sum of 10l. a-piece for their trouble. But it is, my will and mind that they the said Mr. Hyatt, Mr. Ferrand, and Mr. Syddall, shall be only accountable for their own several acts," &c. The will contained other bequests not material to be stated. The devisor died in July 1754.

At the trial before Lord Ellenborough, C. J. at the Sittings at Westminster, after Michaelmas Term last, it clearly

appeared

1801.

Doz d. WarTE against SIMPSON.

appeared that the lease under which the defendant claim" ed was void under the power granted to the trustees, the best rent not having been reserved; and the jury found a verdict for the lessor of the plaintiff on that ground. But objection was taken at the trial (which was reserved to the [ 165 1 defendants' counsel, with liberty to move to enter a nonsuit if the Court should sustain the objection) that the legal title was not in the lessor of the plaintiff, the first remainder-man in tail under the will; but (all the trustees being dead) in the heir of H. Hyatt, who survived the other trustees, and died in November 1774. It appeared, however, that of the two annuitants mentioned in the will, Mrs. Holme died in the lifetime of the devisor, and Mrs. Dick enson after him in the year 1762; and the last tenant for life died in 1803, immediately prior to the bringing this ejectment. Also the sum of 800l. mentioned in the will, had been raised and applied as long ago as January 1771, when all the purposes of the trust were satisfied. Lord El lenborough, C. J. was of opinion at the trial, that the trustees did not take the legal estate for any longer time than the lives of the annuitants, and until the gross sum of 800/. was raised, and the purposes of the trust satisfied: but if that were otherwise, yet after all the purposes of the trust were at an end, he said he would direct the jury to presuine a reconveyance, if necessary, to the persons that were beneficially entitled under the will. But if it was afterwards objected by the defendant's counsel, that the power of leasing was intended by the testator to be given to the trustees during the continuance of the successive particular estates carved out of the inheitance; and that the exercise of such a power necessarily required a seisin in fee of the trustees to support it. And thereupon the verdict was entered for the plaintiff, with liberty to the defendants to move to set it aside and enter a nonsuit, if the Court should be of opinion that the objection to the title of the lessor of the plaintiff were well founded. A rule nisi having been accordingly obtained in Hilary Term last for that purpose,

Wood (who was with Erskine and Garrow) shewed cause. against the rule; and contended that the trustees took only a chattel interest under the will for the payment of the an nuities during the lives of the annuitants, and for raising VOL. V.

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the

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DOE d. WHITE against SIMPSON

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the sum of 8007. for the legatees; and when those purposes
were answered, which they were so far back as 1771, the
legal estate was limited over to the several takers for life,
remainder to the lessor of the plaintiff in tail, in whom it is
now vested in possession. A devise to trustees and their
executors and administrators, for the payment of debts and
legacies, has been often holden to give them only a chattel
interest, and when the purposes are answered the legal estate
goes over. As in Co. Lit. 42. a. "If a man devise his
lands to his executors, for payment of debts, and until his
debts be paid, they have but a chattel and an interest un-
certain in the land until his debts be paid:" "and being a
chattel, it shall go to the executor or executors for the pay-
ment of his debts." And so it was resolved in Sir W.
Cordell's case (a), and in Hilchins v. Hilchins (b). The de-
vise to the trustees being also for the payment of the an
nuities for life, will not vary the question; for the trustees
will take no greater estate than is sufficient to answer the
purposes of the trust. In Barnardiston and others v. Carter,
in Dom. Proc. (c) under a devise to executors for payment
of debts and legacies, it was decreed that they had but a
chattel interest: and, by the report in Brown, it appears
that one of the legacies was a rent charge (d) for the lives of
two persons and the survivor. In other cases where the de-
vise has been to trustees and their heirs in trust for pay.
ment of debts, legacies, and annuities, they have been
holden to take no greater estate than such as was commen-
surate with the purposes of the trust after which the limi-
tations over took effect as legal limitations; as in Lord
Suy and Sele v. Lady Jones (e). That was a devise to
trustees and their heirs in trust, to pay legacies and annui-
ties, and to pay the surplus to a feme covert for life to her
separate use; and after her death the trustees to stand
seised to the use of the heirs of her body in tail general,
subject to the payment of the several annuities; remainder
(b) 2 Vern. 403.

(a) Cited in 8 Rep. 96. and Cro Eliz. 316.
(c) 1 P. Wms. 509, 519. 2 Bro. P. C. 1.
(4) This rent charge was given "after such time as his said debts
and legacies should be discharged;" and no question was made on this
ground.

(e) 3 Bro. P. C. 458. 8 Vin. Abr. 262.

over. And Lord Chancellor King held, that the use was executed in the trustees and their heirs, during the life of the feme covert, and after her death it was executed in the persons entitled to take charged with the annuities. [Lawrence, J. I have heard Lord Kenyon say, that that was a single case, standing on its own grounds (a).] The same principle was established in Shapland v. Smith (b), and in Silvester v. Wilson (c), that under a devise to trustees to receive and pay out of the rents and profits, annuities for lives, they shall have no greater estate than is sufficient for the purposes of the trusts created. Then it is argued from the power of leasing given to the trustees, that the testator meant to give them a fee but that is not the necessary inference from the words of the devise. The power of leasing was meant to be confined to the duration of the interest the devisor had before given to the trustees, and commensurate only with the purposes of the trust; and a power to any extent may be granted to one, without giving him the fee, or without giving him an interest commensurate with the lease which he may grant. Besides, the jury were instructed at the trial, that even if the legal estate continued in the trustees, after the purposes of the trust were satisfied, yet the jury might presume a reconveyance of it by the trustees to the remainder-man in tail, after those purposes were an swered. And here a sufficient length of time has elapsed to warrant such a presumption; the last annuitant having died above 40 years ago, and the last of the legacies having been paid off in January 1771. In a case where much less time had elapsed, Lord Kenyon said, he would direct a jury to presume a surrender of a satisfied term (d).

Gibbs (Park and Rose were with him) contrà, contended that the devise to the trustees to pay annuities for lives, and a gross sum out of the lands devised, gave them the fee, for otherwise the estate might not be sufficient to answer the charge. Cordell's case (b) was only a devise to executors to pay debts; a mere power to raise money: and the

(a) Vide Harton v. Harton, 7 Term Rep. 654.

(b) i Bro. Ch. Rep. 74.

(c) 2 Term Rep. 444.

(d) Vide Doe v. Staple, 2 Term Rep. 696, and Goodtitle v. Jones 7 Term Rep. 49.

(e) Cired 8 Rep. 96, and Cro. Eliz. 316.

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grounds

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DoEd. WHITE against SIMPSON.

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DOE d. WHITE against SIMPSON.

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[ 170 ]

grounds on which Barnardiston v. Carter was decided in the House of Lords, cannot be collected from the report. But in Jenkins v. Jenkins (c), where an annuity was devised to one for life, to be paid out of certain lands by the execu tor to whom those lands were afterwards devised, the Court had no doubt that the executor took an estate at least during the life of the annuitant; and they were inclined to think he took the fee: but that was not necessary to be decided, as the annuitant was still living. But, at any rate, the leasing power given to the trustees shews an intention to pass the fee to them; for it is clear that the duration of the lease could not depend upon the payment of the lega cies. And as no such power of leasing is given to the te nants for life, or in tail, the devisor must have intended that the trustees should retain the power of leasing during the continuance of those estates at least. The calling it a power, will not prevent the implication of a fee to the trus tees, if the exercise of the power require them to take such an estate. As to the presumption of a reconveyance by the trustees, supposing them to take the fee, that was a fact for the jury, which they have not found.

Cur. adv. vult.

Lord ELLENBOROUGH, C. J. now delivered judgment. This was a motion for a new trial (or that a nonsuit should be entered) on the ground that the legal estate in the premisses, for which the ejectment was brought, was not in the lessor of the plaintiff, but in the heir of the surviving trustee, under the will of one Charles White, made in the year 1752; and that consequently the ejectment should have been brought on the demise of such heir of the surviving trustee. The question arises on the will of the said Charles White, made the 1st day of December, 1752 (which his Lordship stated). The lease under which the defendant claimed, has been found by the jury to be void, as not having been made pursuant to the leasing power contained in the will; but it was contended, by the counsel for the defendants, that the ejectment was ill brought in the name of the lessor of the Plaintiff, Charles White, the first remainder-man in tail, for the reason before stated, viz. that the legal estate was not in him. The validity of which

(c) Willes, 650, where the cases are collected.

objection