Chap. XXX. Baker v. White, 20 Eq. 166; overruling Baker v. Parson, 42

Devise in fee with power to sell or convey.

Direction to transfer copyholds.

Devise enlarged to a fee by trust for sale.

Devise in

fee till an infant attains

twenty-one.

L. J. Ch. 228.

An appointment, under a power to appoint the use, vests the legal estate in the appointee. 2 Jarman, 1157.

A trustee who disclaims the office of trustee disclaims also the legal estate. In re Birchall; Birchall v. Ashton, 40 Ch. D. 436.

II. THE QUANTITY OF THE ESTATE OF TRUSTEES.

As regards the quantity of the estate taken by the trustee, the same rules apply to copyholds, leaseholds, and freeholds. Doe v. Barthrop, 5 Taunt. 382; Baker v. White, 20 Eq. 166; Stevenson v. Mayor of Liverpool, L. R. 10 Q. B. 81; see Wyman v. Carter, 12 Eq. 309.

1. A devise to trustees and their heirs, with a general power to sell or convey, will give them the fee though some of the limitations might, in the absence of such a power, be legal. Rackham v. Siddall, 1 Mac. & G. 607; Doe d. Shelley v. Edlin, 4 A. & E. 582; Bagshaw v. Spencer, 1 Ves. Sen. 142; 2 Atk. 570; Watson v. Pearson, 2 Ex. 581; Blagrove v. Blagrove, 4 Ex. 550; Cropton v. Davies, L. R. 4 C. P. 159; see Richardson v. Harrison, 16 Q. B. D. 85.

But in the case of copyholds, a direction that they are to be transferred does not require the legal estate. Doe d. Player v. Nicholls, 1 B. & C. 336.

And if the power of sale does not arise till after a life estate, the ordinary rule applies to ascertain whether the life estate is equitable or legal. Doe d. Noble v. Bolton, 11 A. & E. 188.

And even, where the devise before the Wills Act would not have carried the fee, a trust to sell will give trustees the fee. Doe d. Cadogan v. Ewart, 7 Ad. & E. 636.

2. But though there may be words which will give the trustees a fee, their estate may be controlled if it can be shown what less estate will satisfy the trust.

Thus, a devise to trustees and their heirs till an infant attains twenty-one, and then to the infant in fee, gives the trustees only a chattel interest. Goodtitle à. Hayward v. Whitby, 1 Burr. 228.

Chap. XXX.

Devise in fee to preserve

So, a devise in fee to trustees to preserve contingent remainders will be cut down to an estate for the life of the tenant for life, if there are no subsequent remainders to preserve. Doe contingent d. Compere v. Hicks, 7 T. R. 433; Haddelsey v. Adams, 22 B. 266; Saunders v. Eppe, 9 W. R. 69.

If, however, there is a power of appointment under which contingent remainders may be created, the estate of the trustees will not be cut down. Venables v. Morris, 7 T. R. 342, 437.

This, however, only applies to trustees, especially inserted to preserve contingent remainders. Doe v. Barthrop, 5 Taunt.

382.

So a devise to trustees in fee, on trust to pay rents to A. for life, with remainder to B., gives them an estate for A.'s life only. Playford v. Hoare, 3 Y. & J. 175.

A fortiori, if the devise in remainder is an independent devise. Adams v. Adams, 6 Q. B. 860; Cooke v. Blake, 1 Ex. 220.

In a deed as a general rule a limitation to the use of trustees in fee, will not be cut down to a smaller estate. Cooper v. Kynock, 7 Ch. 398.

However, it has been held that a limitation in fee to trustees to preserve contingent remainders will, even in a deed, be cut down to an estate pur autre vie, if there is a subsequent limitation of a term to the same trustees. Curtis v. Price, 12 Ves. 89; Beaumont v. Marquis of Salisbury, 19 B. 198.

But a subsequent limitation in fee to the same trustees, and a grant of a term to other persons, will not cut down the estate of the trustees. Colman v. Tyndall, 2 Y. & J. 605; Lewis v. Rees, 3 K. & J. 132; see Fowler v. Lightburne, 11 Ir. Ch. 495.

remainders.

Devise in fee to pay rents to A. for life with legal remainder

over.

Effect of leasing

powers where

Where the devise is to trustees in fee, and they must at least take an estate for life, an indefinite power of leasing will show that they were to have the fee. Doe d. Tomkyns v. Willan, 2 the devise is B. & Ald. 84; Doe d. Keen v. Walbank, 2 B. & Ad. 554; Riley v. Garnett, 3 De G. & S. 629; Collier v. Walters, 17 Eq. 252; see 1 Ch. 81.

This does not apply where the power to lease is limited to the continuance of the trust. Doe d. Kimber v. Cafe, 7 Ex. 675.

in fee.

As to what is a general power of leasing, see Vivian v. Jegon, L. R. 3 H. L. 285.

And if the first life estate is in trust for a married woman for her separate use, as well as some of the remainders, the intermediate estates will not be legal estates; but the legal estate will be in the trustees, at any rate as long as there are any remainders to the separate use of married women left. Harton v. Harton, 7 T. R. 652; Brown v. Whiteway, 8 Ha 145; Toller v. Attwood, 15 Q. B. 929.

When there is a devise to trustees in fee, followed by a direction to pay debts, or even, when the trustees are also executors, by a mere general direction to pay debts, the fee will not be cut down to a smaller interest, such as an interest pur autre vie. Spence v. Spence, 10 W. R. 605; 12 C. B. N. S. 199; Creaton v. Creaton, 3 Sm. & G. 386; Smith v. Smith, 11 C. B. N. S. 121; Marshall v. Gingell, 21 Ch. D. 790; see In re Brooke; Brooke v. Brooke, (1894) 1 Ch. 43.

But this is not the case with a mere charge of debts. Kenrick v. Lord Beauclerk, 3 B. & P. 178.

And a general direction to pay debts will not enlarge a devise to trustees without words of limitation to a fee. Doe v. Claridge, 6 C. B. 641.

A devise in fee upon trust to pay an annuity for life, and after the death of the annuitant upon trust for A. in fee, gives the legal estate in fee to the trustees, if the trustees would be bound to raise arrears of the annuity by sale or mortgage. Fenwick v. Potts, 8 D. M. & G. 506; Whittemore v. Whittemore, 38 L. J. Ch. 17.

4. In cases before the Wills Act a devise to trustees in words, that did not carry the fee, upon trust to pay debts, or make certain specified payments out of the rents, only gave them a chattel interest till the payments were made. Cordall's Case, Cro. El. 316; Doe v. Simpson, 5 East, 162; Ackland v. Lutley, 9 A. & E. 879; Heardson v. Williamson, 1 Kee. 33.

So where the trustees were to pay annuities, and then a specified sum out of the rents and profits, they took an estate for the lives of the annuitants with a chattel interest superadded. Doe d. White v. Simpson, 5 East, 162.

:

Sects. 30 and 31 of

Act.

The law, however, on this point has been altered by sects. 30 Chap. XXX. and 31 of the Wills Act, which provide 30. "When any real estate (other than or not being a the Wills presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple, or other the whole estate or interest, which the testator had power to dispose of by will, in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication."

31. "Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied."

Effect of according to

these sections

The short effect of these obscure sections as stated by Jarman, and adopted by most of the writers who have followed him, is, "that trustees whose estate is not expressly defined by the Mr. Jarman. will, must in every case, and whatever be the nature of the

duty imposed on them, take either an estate for life or an estate

in fee." 2 Jarm. 1166; see Shelford, Real Property Stat. 432; Lewin on Trusts, 231.

Chap. XXXI.

I. Powers of

sale. Mortgage.

Trust to invest.

Direction to divide.

Severance of minerals.

Whether

power of sale extends to purchased lands.

CHAPTER XXXI.

ON CERTAIN POWERS COMMONLY INSERTED IN WILLS.

A POWER of sale and exchange authorises a partition. In re Frith & Osborne, 3 Ch. D. 618.

A power of sale will not as a general rule authorise a mortgage, though it may, if the object of the sale is to raise a particular charge, subject to which the estate is devised. Stroughill v. Anstey, 1 D. M. & G. 635; Walker v. Southall, 56 L. T. 882.

A devise of real and personal estate upon trust to invest the same in certain securities has been held to give an implied power of sale over the real estate. Affleck v. James, 17 Sim. 121; Mower v. Orr, 7 Ha. 473; Cornick v. Pearce, 7 Ha. 477.

But a power to invest will not have this effect. Re Holloway; Holloway v. Holloway, 60 L. T. 46.

A direction to divide real and personal estate into moieties does not alone give an implied power of sale. Cornick v. Pearce, 7 Ha. 477.

An ordinary power of sale does not authorise the severance of the timber or minerals from the land. Cholmeley v. Paxton, 3 Bing. 207; S. C. nom. Cockerell v. Cholmeley, 10 B. & C. 564; 3 Russ. 565; 1 R. & M. 418; 6 Bl. N. S. 120; 1 Cl. & F. 60; Buckley v. Howell, 29 B. 546.

The Trustee Act, 1893, (56 & 57 Vict. c. 53) sect. 44, gives the Court jurisdiction in the case of trustees authorised to dispose of land by way of sale, exchange, or partition, to sanction sales with an exception or reservation of any minerals. Where there was a power to sell trust funds and invest them in the purchase of land, to be held on such trusts as would best correspond with those then subsisting, with a direction that land