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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.”

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. Jar

cording to pressly defined by the 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. 296; see Shelford, Real Property Stat. 532; Lewin on Trusts, 195.

these sec

man,

A A

CHAPTER XXX.

ON CERTAIN POWERS COMMONLY INSERTED IN

WILLS.

I. Powers A POWER of sale and exchange authorises a partition. of sale.

In re Frith & Osborne, 3 Ch. D. 618. Mortgage. 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. Severance An ordinary power of sale does not authorise the severof minerals.

ance 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 BI. 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. Whether Where there was a power to sell trust funds and invest power of sale ex

them in the purchase of land, to be held on such trusts as tends to purchased

would best correspond with those then subsisting, with a lands. direction that land purchased should be considered per

sonalty, it was held that the power of sale extended to purchased lands. Tait v. Lathbury, 1 Eq. 174; 35 B. 112.

A power of sale to be exercised after the death of a sale at death of tenant for life cannot be exercised during his life, though tenant for he may consent to the sale. Blacklow v. Laws, 2 Ha.

Power of

sell,

40 ; Johnstone v. Baber, 8 B. 233 ; Mosley v. Hide, 17 Q. B. 91 ; Waut v. Stallibrass, L. R. 8 Ex. 175. A direction to sell within five years has been held to Sale within

given be directory merely where the purchase money was to be period. applied in payment of debts. Pearce v. Gardner, 10 H. 287; see Cuff v. Hall, 1 Jur. N. S. 972. Where land is devised to several trustees in fee upon Surviving

trustee can trust to sell, the survivors can sell ; and it is not necessary sell. to fill up the number of trustees in order to make a good title. Lane v. Debenham, 11 Ha. 192.

Similarly if one trustee disclaims the others can sell. Nicloson v. Wadsworth, 2 Sw. 365; Adams v. Taunton, 5 Mad. 435 ; see Crewe v. Decken, 4 Ves. 97. Under a devise to trustees and their heirs upon trust Heir of

surviving that they or the trustees or trustee for the time being trustee can shall sell, the heir of the surviving trustee can sell. In re Morton & Hallett, 15 Ch. D. 143. There is an important distinction between a power Trust and

power, coupled with an interest and a bare power.

Thus a devise to executors to sell passes the interest, but a devise that executors shall sell the land, or that land shall be sold by them, gives them but a power. Howell v. Barnes, Cro. Car. 382 ; Yates v. Compton, 2 P. W.308 ; Lancaster v. Thornton, 2 Burr. 1027; Doe v. Skotter, 8 A. & E. 905; see Knocker v. Bunbury, 6 Bing. N. C. 306 ; Lambert v. Browne, I. R. 5 C. L. 218.

A direction to the testator's executors to sell his lands Direction gives the executors a common law authority under which cutors to they can vest the legal estate in a purchaser without the concurrence of the beir. Co. Lit. 112 b.

If the lands are devised by the will subject to the direction, it would seem the concurrence of the beneficiaries in the sale would be no more necessary, than the concurrence of the heir, if the land is not devised. The proper form of conveyance in such a case appears

to exe

sell.

to sell

to be a bargain and sale which will not require to be enrolled under 27 Hen. VIII. c. 16, as it takes effect at

Common Law and not under the Statute of Uses. Direction

If the testator directs copyholds to be sold, or to be copyholds. sold and conveyed, the purchaser is entitled to be admitted

without the previous admittance either of the trustees or the heir. Holder v. Preston, 2 Wils. 400; R. v. Wilson, 11 W. R. 70; 3 B. & S. 201.

The same principle applies if the copyholds are devised to the trustees subject to the power. Glass v. Richardson,

9 Ha. 698; 2 D. M. & G. 658. Acting The statute 21 Hen. VIII. c. 4, enacts in effect, that if executors may sell any of the executors refuse to undertake the administra

tion and charge of the will, the executors or executor accepting the charge may sell under a direction to the executors to sell the land.

Copyholds are within the statute. Peppercorn v. Way

man, 5 De G. & S. 230. Sale by

A power of sale given to the testator's executors or adminis.

administrators may be exercised by his administrator durante minore ætate. Monsell v. Armstrong, 14 Eq. 423.

It appears to be settled that a bare power of sale given

to several persons nominatim cannot be exercised by vive.

the survivors. Co. Lit. 113 a, note by Hargrave.

If the persons are also appointed executors, the question Connected would be whether the power is given to them in respect with an office.

of their office, or whether a personal confidence is reposed

in them. See In re Cooke's Contract, 4 Ch. D. 454. Power to It is, however, settled that under a direction to execuexecutors. tors hereunder named" to sell land, surviving executors can

sell. Howell v. Barnes, Cro. Car. 382 ; W. Jo. 332;

Brassey v. Chalmers, 4 D. M. & G. 528. Survivors It would seem, that where there is a direction that the of a class may sell. land shall in certain events be sold by a class of

persons

trator.

Bare

power does

not sur

Bare

named

executor

a

and their

consent.

such as the testator's sons, the power can be exercised by the surviving sons, though some have died after the testator's death. Vincent v. Lee, Cro. Eliz. 26.

A power of sale given to executors, the object of the Executor sale not being payment of debts, cannot be executed by an cannot sell. executor of an executor. Yearbooks, 19 Hen. VIII. fo. 9 a, pl. 4; Chance on Powers, 250.

It has been held that a bare power to sell given to trustees Bare and their heirs can be exercised by the surviving trustees trustees

power to and the heir of a deceased trustee jointly, but not by

heirs. survivors of the trustees only. Mansell v. Vaughan, Wilm. 51; Townsend v. Wilson, 1 B. & Ald. 608 ; 3 Mad. 261.

3 See Hall v. Dewes, Jac. 189. Where the consent of a tenant for life is required an Whether

infant can infant tenant for life may consent if there is an intention shown that the power should be exercisable during minority; for instance, if the power is to be exercised with the consent of a named person who is an infant at the time. In re Cardross' Settlement, 7 Ch. D. 728. If the consent of the tenant for life is required, he

may give his consent, though he has aliened his life estate, if his alienee concurs. Alexander v. Mills, 6 Ch. 124.

In the event of the bankruptcy of the tenant for life, Bankthe power of sale may be exercised with the consent of the tenant for tenant for life and his trustee in bankruptcy. Holds- life. worth v. Goose, 29 B. 111; Eisdale v. Hammersly, 31 B. 255.

If the tenant for life upon the alienation of his life Reservaestate has expressly reserved his right to consent to the

power of sale, the concurrence of the alienee of the life estate is not consent. necessary. Warburton v. Farn, 16 Sim. 625.

Where trustees were authorised to sell with the consent Power of of the tenant for life for the time being and to invest the sale with proceeds, and there was a direction that no investment should be made while there should be a tenant for life or

Tenant for

life may

consent after alienation

tion of

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