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principle does not apply to a deed. Williams v. Waters,
14 M. & W. 166. Trustees to If the trustees are to preserve contingent remainders preserve 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. Effect of
And it would seem, that a power to the trustees to
ing the trust is to permit the beneficiaries to receive them.
If the receipts of the beneficiary are to be with the
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 percies. sonalty is sufficient for that purpose or not.
Murthwaite V. Jenkinson, 2 B. & C. 357; 3 D. & Ry. 765. Trust to On the other hand, if the trust is to pay the debts out arise only if the of the realty only if the personalty proves deficient, the sonalty is
trustees take the legal estate, only if the event happens. cient.
Carlyon v. Truscott, 20 Eq. 339. See Doe d. Cadogan v.
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.
The Statute of Uses does not apply to leaseholds for Leaseholds years or to copyholds, and therefore a devise of copyholds and copy
holds are to A., in trust for B., gives A. the legal estate. Houston v. Hughes, 6 B. & C. 403 ; Baker v. White, supra.
Uses. 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; Buker 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 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.
sell or convey.
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. Devise And
where the devise before the Wills Act without words of would not have carried the fee, a trust to sell will limitation enlarged to give trustees the fee.
Doe d. Cadogan v. Ewart, 7 Ad. a fee by & E. 636. power of
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 satify the trust. Devise in Thus, a devise to trustees and their heirs till an infant fee till an
attains twenty-one, and then to the infant in fee, gives the attains twenty
trustees only a chattel interest. Goodtitle v. Whitby, 1
remainders will be cut down to an estate for the life of
Doe d. Compere v. Hicks, 7 T. R. 433 ;
If, however, there is a power of appointment under
This, however, only applies to trustees, especially inserted to preserve contingent remainders. Doe v. Bar
throp, 5 Taunt. 382. Devise in So a devise to trustees in fee, on trust to pay rents to fee to rents to A. A. for life, with remainder to B., gives them an estate for for life with legal A.'s life only. Playford v. Hoare, 3 Y. & J. 175. remainder
A fortiori, if the devise in remainder is an independent over.
devise. Adams v. Adams, 6 Q. B. 860; Cooke v. Blake,
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. Where the devise is to trustees in fee, and they must at Effect of
leasing least take an estate for life, an indefinite power of leasing powers
Doe d. Tom- devise is in
where the will show that they were to have the fee. kyns v. Willan, 2 B. & Ald. 84 ; Doe d. Keen v. Walbank,
fee. 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.
As to what is a general power of leasing, see Vivian v.
where woman for her separate use, as well as some of the there are remainders, the intermediate estates will not be legal ders to the estates; but the legal estate will be in the trustees, at any separate rate as long as there are any remainders to the separate married 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 Devise in
fee with a direction to pay debts, or even, when the trustees are also
direction executors, by a mere general direction to pay debts, the to pay
uses of a
fee will not be cut down to a smaller interest, such as an interest pur autre vie. Spence v. Spence, 10 W. R. 605 ; Creaton v. Creaton, 3 Sm. & G. 386 ; Smith v. Smith, 11 C. B. N. S. 121.
But this is not the case with a mere charge of debts.
Kenrick v. Lord Beauclerk, 3 B. & P. 178. Mere And a general direction to pay debts will not enlarge a general direction
devise to trustees without words of limitation to a fee. to pay debts.
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. Devise to 4. In cases before the Wills Act a devise to trustees in trustees without
words, that did not carry the fee, upon trust to pay debts, words of limitation
or make certain specified payments out of the rents, only upon trust gave them a chattel interest till the payments were made. debts Cordall's Case, Cro. El. 316 ; Doe v. Simpson, 5 East, before the Wills Act. 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.
superadded. Doe d. White v. Simpson, 5 East, 162. Sections The law, however, on this point has been altered by 30 & 31 of the Wills
the 30th and 31st sections of the Wills Act, which Act.
Section 30. “That when any real estate (other than or not being a 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