and dis super a word of bution, superadded to the word issue, make it a word of limitation purchase, whether there is a limitation over in default of tribution issue or not. Lees v. Mosley, 1 Y. & C. Ex. 589; Cro- added zier v. Crozier, 3 D. & War. 373; Greenwood v. Rothwell, make issue 5 M. & Gr. 628; 6 Sc. N. R. 670; Montgomery v. Mont- purchase. gomery, 3 J. & Lat. 47; Slater v. Dangerfield, 15 M. & W. 263; Colclough v. Colclough, I. R. 4 Eq. 263; M'Kenna v. Eager, I. R. 9 C. L. 79. It makes no difference, whether a fee be given to the issue by express words or by implication from a power of appointing to them. Bradley v. Cartwright, L. R. 2 C. P. 511. But a power of appointing to issue, which would authorise an appointment in fee, will not make the word issue a word of purchase, where there is an express gift to issue as tenants in common without words giving them the fee. Blackhall v. Gibson, 2 L. R. Ir. 49. the Words of and distribution super cases since Act. 5. It may be noticed that, in wills coming under operation of the Wills Act, a devise to A. for life, after his death to his issue as tenants in common, will added in fall under the last head, since under such words the issue the Wills would take a fee. 6. In King v. Burchell, Amb. 379; 4 T. R. 296 n, a Effect of a direction against alienation by the tenant for life and his issue, or any of them, was held to show that the word issue was used as a word of limitation. See, too, v. Clark, 1 B. 100. restraint upon alienation by the Tate tenant for life and his issue or any of them. Appoint ment of CHAPTER XXIX. ESTATES OF TRUSTEES. I. IN WHAT CASES TRUSTEES TAKE THE LEGAL ESTATE. THE appointment of certain persons as trustees of intrustees of heritance gives them the fee. Trent v. Hanning, 1 B. & P. N. R. 116; 7 East, 97; 10 Ves. 495; 1 Dow. 102. inherit ance. Appointment of new codicil. So the appointment of a person as executor, "so far as is necessary to the performance of the trusts relating to my real estate," gives the executor the fee. Plenty v. West, 6 C. B. 201; 16 B. 175; Sidebotham v. Watson, 11 Ha. 170. But if the land is expressly devised to beneficiaries, the appointment of persons as trustees for carrying the disposition of the testator's property into proper effect will not give the trustees the fee. L. & S. W. R. Co. v. Bridger, 12 W. R. 948. Where land is devised to three trustees, and the appointment of one of the trustees is revoked, and another is trustees by appointed in his place, the fee passes to the new trustee jointly with the two remaining trustees. Re Hough's Will, 4 De G. & S. 371; Re Turner, 30 L. J. Ch. 144; 9 W. R. 174; 2 D. F. & J. 527. A direction to executors to let the testator's lands, and out of the profits to pay two sums, followed by a gift of the rents of the land, gives the executors no estate beyond the period for accomplishing the purpose indicated. Lam Alle a devise to A&B. upou push to pay the rents to C or permit him to receive the same would give the leal Acterise to it & B upon trist to pay the lote to C rents to it (or B) or permit him to receive the same would leave the legal idate in c&&B and give the tenant for life LEGAL ESTATE. equitable 347 life aste Tauquerary willianne au bert v. Browne, I. R. 5 C. L. 218. See Smith v. Smith, 1 L. R. Ir. 206. to pay A direction to executors to pay annuities out of the Direction testator's whole estate, which is disposed of after payment annuities of the annuities, gives the executors the fee. Woodhouse, 4 T. R. 89. Doe v. out of realty. the A devise unto and to the use of A., in trust for B., gives Effect of A. the legal estate by analogy to the Statute of Uses; Statute of while, similarly, a devise to A., in trust for B., gives B. the Uses on legal estate. See Cunliffe v. Brancker, 3 Ch. D. 393. In the latter case it makes no difference that the devise to the trustees is subject to payment of debts, if the duty of paying them is not imposed on the trustees. Kenrick v. Lord Beauclerk, 3 B. & P. 178; Jones v. Lord Say, 8 Vin. 262, pl. 19. But the legal estate will remain in the trustees, if it is necessary for the performance of the trust imposed upon them. devises to trust to Thus, a devise to trustees and their heirs in trust to Devise in pay the rents to B. gives the trustees the legal estate. Doe v. Homfray, 6 A. & E. 206. pay rents. permit But a devise to trustees to permit B. to receive the Devise to rents vests the legal estate in B. Right d. Phillips v. cestui que Smith, 12 East, 455; Doe d. Noble v. Bolton, 11 Ad. & E. trust to 188. to And, similarly, if the trust is to pay to or permit B. receive the rents, the latter direction takes effect and the legal estate vests in B. Doe v. Biggs, 2 Taunt. 109; Baker v. White, 20 Eq. 166. * receive rents. Devise to pay to or permit cestui que trust to receive rents. But if the beneficiaries are to receive only the net Net rents. profits, the trustees take the legal estate. Barker v. Barker v. Green wood, 4 M. & W. 421. use. If the trust is to permit a married woman to receive Separate the rents to her separate use, the legal estate remains in the trustees. Harton v. Harton, 7 T. R. 652. But this principle does not apply to a deed. Williams v. Waters, Trustees to preserve 14 M. & W. 166. If the trustees are to preserve contingent remainders contingent during the life of the tenant for life, a trust to permit the latter to receive the rents will not give him the legal estate. Biscoe v. Perkins, 1 V. & B. 485. remain ders. Effect of give re- estate. Trust to pay debts And it would seem, that a power to the trustees to give receipts would show that they were to receive the rents and pay them over to the beneficiaries, notwithstanding the trust is to permit the beneficiaries to receive them. But a receipt clause will not have this effect if copyholds are given with the freeholds, since it may be limited to the former, to which the Statute of Uses does not apply. Baker v. White, 20 Eq. 166. If the receipts of the beneficiary are to be with the approbation of the trustees, they take the legal estate. Gregory v. Henderson, 4 Taunt. 772. The fact that no sufficient estate is limited to support contingent remainders will not prevent the uses from being legal. Cunliffe v. Brancker, 3 Ch. D. 393. If there is a devise in remainder to children who shall attain twenty-one, a power of maintenance given to the trustees will prevent the use in remainder from becoming legal. In re Berry's Estate; Berry v. Berry, 47 L. J. Ch. 182; 26 W. R. 327. A devise to trustees upon trust to pay debts and legacies and lega- vests the legal estate in them at once, whether the personalty is sufficient for that purpose or not. Murthwaite v. Jenkinson, 2 B. & C. 357; 3 D. & Ry. 765. cies. Trust to On the other hand, if the trust is to pay the debts out arise only if the per- of the realty only if the personalty proves deficient, the sonalty is trustees take the legal estate, only if the event happens. insuffiCarlyon v. Truscott, 20 Eq. 339. See Doe d. Cadogan v. Ewart, 7 A. & E. 636. cient. If there is a general direction to pay debts whereby the debts are charged upon the lands of the testator, followed by a devise of the lands to trustees and their heirs to certain uses, the legal estate remains in the trustees. Houston v. Hughes, 6 B. & C. 403; Baker v. White, 20 Eq. 166, 173. for years The Statute of Uses does not apply to leaseholds for Leaseholds years or to copyholds, and therefore a devise of copyholds and copyto A., in trust for B., gives A. the legal estate. Houston v. Hughes, 6 B. & C. 403; Baker v. White, supra. There is no so-called doctrine of attraction by which, where freeholds and copyholds are given together, the legal estate in the freeholds attracts the legal estate in the copyholds, or vice versa. Baker v. White, 20 Eq. 166; overruling Baker v. Parson, 42 L. J. Ch. 228. An appointment, under a power to appoint the use, vests the legal estate in the appointee. 2 Jarman, 284. 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. holds are not within the Statute of Uses. fee with sell or convey. 1. A devise to trustees and their heirs, with a general Devise in power to sell or convey, will give them the fee though power to 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. But in the case of copyholds, a direction that they are Direction to transfer to be transferred does not require the legal estate. Doe copyholds. d. Player v. Nicholls, 1 B. & C. 336. |