Devise without words of limitation 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 Doe d. Cadogan v. Ewart, 7 Ad. enlarged to give trustees the fee. a fee by power of sale. Devise in fee till an infant attains twenty one. Devise in fee to serve remain & 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 satify 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 v. Whitby, 1 Burr. 228. So, a devise in fee to trustees to preserve contingent pre- remainders will be cut down to an estate for the life of contingent the tenant for life, if there are no subsequent remainders Doe d. Compere v. Hicks, 7 T. R. 433; Haddelsey v. Adams, 22 B. 266; Saunders v. Eppe, 9 W. R. 69. ders. Devise in fee to pay to preserve. 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 rents to A. A. for life, with remainder to B., gives them an estate for A.'s life only. Playford v. Hoare, 3 Y. & J. 175. for life with legal remainder over. 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. where the 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 will show that they were to have the fee. Doe d. Tom- devise is in 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. Jegon, L. R. 3 H. L. 285. where remain uses of a And if the first life estate is in trust for a married Effect woman for her separate use, as well as some of the there are remainders, the intermediate estates will not be legal rem 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. woman. fee with a direction When there is a devise to trustees in fee, followed by a Devise in direction to pay debts, or even, when the trustees are also executors, by a mere general direction to pay debts, the to pay debts. Mere general direction to pay debts. Devise to trustees without words of limitation upon trust 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. 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, Wills Act. 162; Ackland v. Lutley, 9 A. & E. 879; Heardson v. Williamson, 1 Kee. 33. to pay debts before the Sections 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. The law, however, on this point has been altered by the Wills the 30th and 31st sections of the Wills Act, which 30 & 31 of 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 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." Section 31. "That 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." these sec cording to The short effect of these obscure sections as stated by Effect of Jarman, and adopted by most of the writers who have tions acfollowed him, is, "that trustees whose estate is not ex- Mr. Jarpressly defined by the will, must in every case, and what- man. ever be the nature of the duty imposed on them, take either an estate for life or an estate in fee." 2 Jarm. 296; see Shelford, Real Property Stat. 532; Lewin on Trusts, 195. A A I. Powers of sale. Mortgage. Severance of minerals. Whether power of sale ex tends to CHAPTER XXX. 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. 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 Confirmation of Sales Act, 25 & 26 Vict. c. 108, confirms past sales of lands without the minerals, and enables trustees to make such sales with the consent of the Court. Where there was a power to sell trust funds and invest them in the purchase of land, to be held on such trusts as purchased would best correspond with those then subsisting, with a direction that land purchased should be considered personalty, it was held that the power of sale extended to purchased lands. Tait v. Lathbury, 1 Eq. 174; 35 B. lands. Power of sale at 112. A power of sale to be exercised after the death of a tenant for life cannot be exercised during his life, though tenant for he may consent to the sale. Blacklow v. Laws, 2 Ha. death of life. |