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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.
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.
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 whom any purchase or mortgage money shall be payable
receipts. 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.
By Lord Cranworth's Act, 23 & 24 Vict. c. 145, s. 29,
August, 1860, trustees are empowered to give receipts for
The old law upon the question, in what cases a power
man, 1 Wh. & T. L. C. 64. Effect of It may be noticed here, that it was clearly settled, that a charge of debts. 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.
may authorise an agent to receive it for them. The con-
In the two cases above cited the person paying the
valid discharge to the person paying the money.
Debts contracted by an executor, though for the pur-
proved against the estate. Farhall v. Farhall, 7 Ch. 123. V. Con Where there is a trust for conversion unauthorised version of
securities should, as a general rule, be sold within a personalty
within a year from the death. Bate v. Hooper, 5 D. M. & G. 338 ; year. Hughes v. Empson, 22 B. 181.
But executors, who bona fide postpone the sale of Where securities of fluctuating value, upon which there is no ment of
postponeliability, will not be liable for a loss. Burton v. Burton, conversion
justified. 1 M. & Cr. 80 ; Marsden v. Kent, 5 Ch. D. 598.
Shares, upon which there is an unlimited liability, ought to be sold within the year under a direction to convert. Grayburn v. Clarkson, 3 Ch. 605 ; Sculthorpe v. Tipper, 13 Eq. 232. If there is a discretionary trust to convert, trustees Discre
tionary bona fide exercising their discretion will not be liable for not selling shares upon which the liability is unlimited. In re Norrington ; Brindley v. Partridge, 13 Ch. D. 655. The cases upon investment will be found collected in VI. In
vestment. Godefroi on Trustees, 131 ; Lewin, 270 ; Dunning Prec. 104-108.
Under the common power of investing with consent a previous consent is necessary, and it must be given at the time of the investment, and cannot be given by anticipation. Bateman v. Davis, 3 Mad. 98; Child v. Child, 20 B. 50.
If the consent is to be signified by deed, the deed may be executed after the exercise of the power, if consent has been previously given. Offen v. Harman, 1 D. F. & J. 253.
Trustees cannot in the absence of express powers grant VII. leases. In re Shaw's Trusts, 12 Eq. 124, overruling leasing.
Powers of Naylor v. Arnitt, 1 R. & M. 501.
An executor can make a lease, but if impugned by a Lease by beneficiary it would lie upon the executor and lessee to executor. show that it was made in a due course of administration. Keating v. Keating, Ll. & G. t. Sug. 133. If an executor makes a lease giving the lessee an option Lease with
option to to purchase at a fixed price, the option to purchase cannot purchase.
be exercised against the beneficiaries. Oceanic Steam
Navigation Co. v. Sutherberry, 16 Ch. D. 236. Lease of In the absence of any special circumstances trustees of several properties. contiguous estates held upon different trusts cannot make
a lease of both estates under one demise. Tolson v. Sheard,
5 Ch. D. 10. Power to A power to lease after the death of a tenant for life lease not acceler- cannot be exercised before his death, though the life estate ated.
may be surrendered. Coxe v. Day, 13 East, 118. VIII. Executors or trustees cannot carry on the testator's Carrying on busi.
business without express authority to do so. Travis v.
Milne, 9 Ha. 142; Kirkman v. Booth, 11 B. 273. What A direction to carry on the testator's business only capital
authorises the employment in the business of the capital, employed. which the testator himself employed in the business at his
decease. M'Neillie v. Acton, 4 D. M. & G. 744.
An authority to trustees to carry on the business does not authorise two out of three trustees to carry it on. Ex parte
Butcher; In re Mellor, 13 Ch. D. 465. Effect of If the executor has power to carry on the testator's direction to carry on
business, the debts incurred are primarily the debts of the business.
executor, but the executor is entitled to be indemnified out of the estate to the extent of the assets authorised by the will to be employed in trade.
If the executor is insolvent the creditors are entitled to stand in his place against the assets of the testator. Ex parte Garland, 10 Ves. 110; Ex parte Richardson, Buck. 202; 3 Mad. 138; Scott v. Izon, 34 B. 434 ; M'Neillie v. Acton, 4 D. M. & G. 744 ; Owen v. Delamere, 15 Eq. 134; Hall v. Fennell, I. R. 9 Eq. 406, 615; Fairland v. Percy, 3 P. & D. 217.
The creditors are only entitled to stand in the place of the executor, and are subject to all equities subsisting between him and the estate. In re Johnson; Shearman v. Robinson, 15 Ch. D. 548.
If the business is carried on without authority by the Rights of
creditors executor of a deceased partner, the assets which remain where
business in specie are applicable towards payment of the creditors
carried on of the old firm, and the doctrine of order and disposition without
authority. does not apply. Ex parte Butcher; In re Mellor, 13 Ch. D. 465.
If a tenant for life is allowed to carry on the testator's Tenant for business without authority, but the financial part of the ing on
business. business is carried on through an account in the name of the executors, creditors of the tenant for life are entitled to his life interest only in the stock of the testator remaining in specie, or in stock replacing the original stock. Ex parte Barber; In re Onslow, 28 W. R. 522.
On the other hand, if an executor, who is also residuary legatee, carries on the business without authority the assets belong to the creditors of the executor. In re Fells; Ex parte Andrews, 4 Ch. D. 509.
Under the statutory power of maintenance conferred on IX. Power trustees by 23 & 24 Vict. c. 145, s. 26, it would seem that tenance. trustees might apply money towards the maintenance of infants, irrespective of the question whether there is any other fund applicable for the purpose, or whether the father is able to maintain them. See Culbertson v. Wood, I. R. 5 Eq. 23; see, too, p. 140, ante.
If the will expressly directs maintenance notwithstand- Discretion ing the ability of the father to maintain the children, or interfered
. the trustees have an absolute and uncontrolled discretion, with. the Court will not, as a rule, interfere with the discretion of the trustees. Brophy v. Bellamy, 8 Ch. 798 ; Gisborne v. Gisborne, 2 App. C. 300; Tabor v. Brooks, 10 Ch. D. 273.
But if a discretion and no more is given to the trustees, the Court will control the trustees, if the discretion is not soundly exercised. In re Hodges; Davey v. Ward, 7 Ch. D. 754; In re Roper's Trust, 11 Ch. D. 272. See
. ; Warnford v. Heyl, 20 Eq. 321.