Persons to exercise The case of Walker v. Smallwood, Amb. 676, is no authority to the contrary. See, however, Lewin on Trusts, 374. After judgment the powers of the trustees can only be exercised under the sanction of the Court. Bethell v. Abraham, 17 Eq. 24. A difficulty sometimes arises, where there is a direction power not to sell the testator's land, but the persons to carry out the named. sale are not mentioned. Executors may sell In such cases, if the purpose of the sale is to pay debts, if object of the executor is the person to sell. Anon. 3 Dyer, 371 b; Blatch v. Wilder, 1 Atk. 420; Forbes v. Peacock, 11 M. & W. 630; see Hooper v. Strutton, 12 W. R. 367. sale is to pay debts. Proceeds of sale mixed with personalty. to sell and divide. The same is the case, if the proceeds of sale are to be divided with the personalty in certain shares, though there be no charge of debts. Tylden v. Hyde, 2 S. & St. may 238; Ward v. Devon, cit. 11 Sm. 160; Forbes v. Peacock, 11 M. & W. 630; 1 Ph. 717. Direction But a mere direction to sell lands and divide the proceeds, where they are not mixed with the personalty, or a direction in certain events to sell lands which are directly devised, gives the executors no power of sale. Bentham v. Wiltshire, 4 Mad. 44; Patton v. Randall, 1 J. & W. 189; Allum v. Fryer, 3 Q. B. 442; Curtis v. Fulbrook, 8 Ha. 25, 278; Haydon v. Wood, ib. 279. See, however, Lockton v. Lockton, 1 Ch. C. 179. Power of sale im charge of The question, whether a charge of debts on land gives plied from the executors a power of sale has become of small importance since Lord St. Leonards' Act, 22 & 23 Vict. c. 35, ss. 14-18, which applies to wills coming into operation after the 13th August, 1859. debts. Lord St. Leonards' Sections 14 and 16 in effect enact, that devisees in trust of the testator's whole interest in real estate charged with 14, 16, and debts or legacies, no provision being made for the raising such debts or legacies, may raise the same by sale or mortgage, and where the estate subject to the charge is 18. not devised to trustees for the testator's whole interest, the executors have a similar power of raising the amount. The 16th section does not enable an administrator to sell. In re Clay & Tetley, 16 Ch. D. 3. Section 18 declares that the said sections of the Act shall not extend to a (beneficial) devise to any person or persons in fee or in tail, or for the testator's whole estate and interest charged with debts or legacies, nor shall they affect the power of any such devisee or devisees to sell or mortgage, as he or they may by law now do. In cases where this Act does not apply the law is not Will not in a very satisfactory state. within the Act. trustees of 1. Where debts and legacies are charged on land, and Devise to the land is devised to trustees upon trusts not including land subthe payment of debts, the trustees and not the executors ject to a general are apparently the persons to sell and receive the purchase charge of money. Shaw v. Borrer, 1 Kec. 559; Ball v. Harris, 4 M. & Cr. 264; Stroughill v. Anstey, 1 D. M. & G. 647; Sabin v. Heape, 27 B. 553; Hodkinson v. Quinn, 1 J. & H. 303. In such a case the fact that the trustees take only an estate pur autre vie, the use in remainder being executed by the effect of the Statute of Uses, will not affect their power to sell in order to raise the charge. Eidsforth v. Armstead, 2 K. & J. 333. debts. 2. When there is a charge of debts and legacies on land, Beneficial devise suband the land is devised beneficially, expressly subject to ject to the charge, to a person who is one of several executors, he debts to a can sell and pass the legal estate. Colyer v. Finch, 5 H. who is also L. 905; Corsser v. Cartwright, 8 Ch. 971; L. R. 7 H. L. 731. person executor. devise to person not 3. And the case would apparently be the same where Similar the devisee, who takes subject to the express charge, is not an executor. See Corsser v. Cartwright, 8 Ch. 971, executor. The hive devring which a power to sell real estate implied by a charge of debts must be presumed by a I wihover to be still subsisting without his having 06 the right to make enquiry, as to whether any deets Stil is 20 years - Tanqueray upaid CERTAIN POWERS COMMONLY INSERTED IN WILLS. *362 Whether a general debts on Williamme 4. When there is a charge of debts and legacies on charge of land, and the land is beneficially devised or not devised at land gives all, so that there is a difficulty how the charge is to be enforced, it would seem that prima facie the executor This is the result both the exe cutor a sale. power of has no power to sell the land. On the other hand an intention may be collected from the will, that the executor, and not the devisee, was intended to enforce the charge, in which case the power of sale would include the power of passing the legal estate as well. Thus, if the land is devised for life with contingent remainders over, it is clear that the devisees cannot make a good title; yet, on the other hand, the charge must be raised at once, and therefore a power of sale is implied in the executor. Robinson v. Lowater, 5 D. M. & G. 275. Where a testator directs his debts to be paid by his executors, and charges them on his real estate, a power of sale by implication will not be given to an administrator. In re Clay & Tetley, 16 Ch. D. 3. The above seems to be the effect of the actual decisions on this vexed point. Lord Romilly, however, in numerous cases, has given his opinion that a charge of debts on land, where the land is beneficially devised, gives the executors an implied power of sale. It may, perhaps, be doubted whether the cases expressed to be decided by him on this ground may not be supported upon other principles; see the cases already cited. Wrigley v. Sykes, 21 B. 337, might, perhaps, be upheld on the ground that an express trust to pay debts and legacies was imposed upon the executors, who were also devisees subject to a term. At the same time it must be admitted that that case is a strong authority for the proposition that a mere charge of debts gives the executors a power of sale over realty; sec, too, Bolton v. Stannard, 4 Jur. N. S. 576. But in all probability a court even of co-ordinate jurisdiction would find no difficulty in declining to follow Wrigley v. Sykes on the authority of Doe v. Hughes, unless it were possible to confine the decision in the latter case to the mere question of the legal estate, which, however, would be contrary to the express terms of the judgments delivered. For the opinions of the text-writers on this subject, see Sugd. V. & P. 13th ed. 545; Pow. 121-2; Williams on Real Assets, ch. vi. p. 77; Davidson's Conv. vol. ii. 989 n. ; Dart. V. & P. 619, seq.; Lewin on Trusts, 402, seq.; Hayes & Jarman's Conc. Prec. 564; Farwell on Powers, 57; Shelford's Real Property Statutes, 484; Godefroi on Trustees, 127. to mort There can be no reasonable doubt, that a power to II. Power mortgage authorises a mortgage with power of sale. By gage. 23 & 24 Vict. c. 145, s. 11, a power of sale is expressly given to mortgagees. In re Chawner's Will, 8 Eq. 569, overruling Clark v. Royal Panopticon, 4 Dr. 26. Under a power to raise a sum by way of mortgage, the costs of effecting the security may be raised. Armstrong v. Armstrong, 18 Eq. 541. Power of By Lord St. Leonards' Act, 22 & 23 Vict. c. 35, s. 23, a III. power of giving receipts is conferred upon all persons, to giving receipts. whom any purchase or mortgage money shall be payable upon any express or implied trust, unless the contrary shall be expressly declared by the instrument creating the trust. The latter words of the section appear to show that it is intended to apply only to instruments executed after the passing of the Act, the 13th August, 1859 (see Prideaux Conv. vol. ii. 118; Lewin, p. 394; but see Bennett v. Lytton, 2 J. & H. 158. Lord Cranworth's Act. Effect of charge of debts. Receipt by agent. IV. Executor's sale. By Lord Cranworth's Act, 23 & 24 Vict. c. 145, s. 29, which applies to wills executed or confirmed after the 28th August, 1860, trustees are empowered to give receipts for any money payable to them by reason or in exercise of any trusts or powers reposed or vested in them. The old law upon the question, in what cases a power of giving receipts is to be implied, is now of little importance. See Godefroi on Trustees, 125; Elliot v. Merryman, 1 Wh. & T. L. C. 64. It may be noticed here, that it was clearly settled, that a power of giving receipts is to be implied from a charge of debts, whether in fact any debts exist at the testator's death or not. Forbes v. Peacock, 1 Ph. 717. It would seem that trustees entitled to receive money may authorise an agent to receive it for them. The contrary view would cause such practical inconvenience, that it is hardly likely to be adopted by the Courts. Hope v. Liddell, 21 B., p. 202; Robertson v. Armstrong, 28 B. 123; see, however, Dart, 657; Lewin, 413. In the two cases above cited the person paying the money to the agent received a receipt from the trustees; but it would seem that a receipt, signed by the agent under a power of attorney from the trustees, would be a valid discharge to the person paying the money. An executor may sell or mortgage any part of the testator's power of personal assets. Earl Vane v. Rigden, 5 Ch. 663; Cruik shank v. Duffin, 13 Eq. 555; Berry v. Gibbons, 8 Ch. 747. An administrator durante minore ætate has the same power of selling personal property as an executor. In re Cope, 16 Ch. D. 49; not following In re Robinson, 3 L. R. Ir. 429. V. Conversion of Debts contracted by an executor, though for the purposes of the estate, are the executor's debts, and cannot be proved against the estate. Farhall v. Farhall, 7 Ch. 123. Where there is a trust for conversion unauthorised |