consider that the two surviving trustees and the heir of the deceased trustee were to act together? for it was one thing to say that the survivors could not act until another was appointed; and a different thing to say the heir of the deceased trustee could act in the mean time (m).

If a power be given to a "trustee and his executors,' and the executor of the trustee die having appointed an executor, the latter executor, though by law the executor not only of his immediate testator but also of the trustee, will not, it seems, be so considered for the purposes of the power (n).

A power limited to "executors" or "sons in law" may be exercised by the survivors so long as the plural number remains (o); and if a power be limited to "trustees" we may reasonably conclude it may be exercised by the surviving trustees. And as a power given to "executors" will, if annexed to the executorship, be continued to the single survivor (p), so it may be inferred a power communicated to "trustees" will, as annexed to the office itself, be exercisable by the last surviving trustee; but this is not the effect of the wording of the power, the subject we are now discussing, but results from the survivorship of the estate, of which we shall speak presently.

A power to four trustees" and the survivors of them " cannot, it seems, be executed by the single survivor (r);

(m) See Hall v. Dewes, Jac. 193. (n) See Cole v. Wade, 16 Ves. 44; Stile v. Tomson, Dyer, 210 a; Perk. sect. 552.

(0) Sug. Powers, c. 3. s. 2. (p) Ib.

(q) See Down v. Worrall, 1 M.

& K. 561.

(r) Hibbard v. Lambe, Amb. 309. Note, further directions were declared necessary on the death of either of the surviving ex

ecutors.

for though a power to trustees may, in general cases, be held to survive, an intention to the contrary may here be fairly inferred: the settlor may be supposed to have said, ' I repose a confidence in any two of the trustees jointly, but in neither of them individually.' But it does not follow that if a power be limited to four trustees "and the survivor of them," it may not be exercised, on the death of one, by the survivors; for it seems difficult to imagine any reason why a person who trusted the four jointly, and each of them individually, should refuse to repose a confidence in the survivors for the time being (s).

The point decided in Cole v. Wade (t) will be best understood by a brief statement of the case. A testator gave the residue of his real and personal estate to Ruddle and Wade (whom he appointed his executors), their executors, administrators, and assigns, and directed his said trustees and executors, after making certain payments thereout, to convey and dispose of the said residue of his real and personal estate unto and amongst such of his relations and kindred in such proportions, manner, and form, as his said executors should think proper, his intention being that every thing relating to that disposition should be entirely in the discretion of the said trustees and executors, and the heirs, executors, and administrators of the survivor of them; and the testator directed his said trustees and executors and the survivor of them, and the heirs, executors, and administrators of the survivor of them to mortgage or sell the said residue, or such part thereof as they in their discretion should

(s) See Crewe v. Dicken, 4 Ves. 97; in which case it seems to have been assumed that the receipt of

the survivors would have been a sufficient discharge.

(t) 16 Ves. 27.

think proper; the testator meaning to leave it in the discretion of his said trustees and executors to convey unto his relations the said residue in such manner and form as his said trustees should think proper; and, lastly, he directed that the said Ruddle and Wade, or the survivor of them, or the heirs, executors, or administrators, of such survivor, should make the division within fifteen years from the testator's decease. Wade, the survivor, devised and bequeathed the real and personal estate of the testator to William and Edward Bray, their heirs, executors, administrators, and assigns, upon the trusts of the will, and named them his executors for that specific purpose only, appointing his wife and another person executors as to his own estates. The question was agitated, whether William and Edward Bray could exercise the power of distribution among the relations. Sir W. Grant said, "The original trustees and executors were the same persons: all the real and personal estate was vested equally in them; but the heirs and executors of the surviving trustee might be different persons; yet all the directions about the distribution of the residue proceed upon the supposition that the same persons are to select the objects and settle the proportions in which they are to take; but if the real estate is to go to one, and the personal estate to another, the testator has left it entirely uncertain how the power is to be executed. Whether the Messrs. Bray can in any sense be the executors of Wade, with whose own property they are not to intermeddle, it is not material to determine." His Honor, therefore, decided, that the power had become extinguished.

3. As to the effect of disclaimer, assignment of the estate, and survivorship among the trustees.

If a power be given to co-trustees, and one of them disclaim, it seems the power may be exercised by the continuing trustee or trustees.

Jenkins observes, "If a testator devise that A. and B. shall sell, and near the end of the will he names them executors, if one refuses at common law (u), or dies, the other may sell, for the power is annexed to the executorship (x);" and in the instance of trustees, it may equally be argued that although given to persons by name, the is annexed to the trusteeship.

power

And of this opinion apparently was Lord Loughborough in the case of Crew v. Dicken (y); for a power of signing receipts having been limited to three trustees by name, and one of them being dead, his Lordship remarked, "If A. B. (one of the survivors) had renounced, that is, had disclaimed instead of constructively accepting the trust by the execution of a conveyance, the whole estate would have been in the continuing trustee exactly as if the two other trustees had died in the life of the testator;" and it is evident from the context that his Lordship meant to extend the observation to the power of signing receipts.

The case of Adams v. Taunton (2) is a direct decision by Sir J. Leach to the same effect. A testator had devised his estates to A. and B. upon trust to sell and apply the proceeds amongst his children, and declared that the receipts of the said A. and B. should be sufficient discharges. A. renounced, and Sir J. Leach, after having taken time to consult the authorities, said,

(u) That is independently of 21 H. 8, c. 4, which, upon refusal by one executor, authorized a sale by the co-executor.

(x) Jenk. 44.
(y) 4 Ves. 97.

(≈) 5 Mad. 435.

"It being now settled that a devise to A., B., and C. upon trust is a good devise to such of the three as accept the trust, it follows by necessary construction that by the receipts of the trustees is to be intended the receipt of those who accept the trust (a)."

As to the effect of assignment, it is clear the power is not appendant to the estate, so as to follow along with it in every transfer by the party, or devolution by course of law (b). Even where a new trustee, is appointed by the Court, the conveyance from the old trustee to the new trustee will not have the effect of communicating the power (c).

We have seen that if one trustee disclaim in the strict sense of the word, the power will not be extinguished, but will survive to the co-trustee; but, according to the old doctrine, if a trustee instead of disclaiming had released the estate, that was a virtual acceptance of the trust, and then the conveyance of the retiring trustee did not pass the power into the hands of the continuing trustee (d); but at the present day it seems a release with the intention of disclaimer would have all the operation of a formal and actual disclaimer (e).

The transfer of the estate, as it will not communicate the power to the grantee, so it will not in all cases withdraw it from the grantor: the guardianship of the pro

(a) From his Honor's words, "the receipts of the trustees," it might be thought the power had been given not to A. and B. by name, but to "the trustees:" the R. L. has been consulted, and it appears, as stated in the report, that the power was given to said A. and B."

"the

(b) Cole v. Wade, 16 Ves. 47,

per Sir W. Grant; Crewe v. Dicken, 4 Ves. 97.

(c) Doyley v. Attorney-General, 2 Eq. Ca. Ab. 194; and see Cole v. Wade, 16 Ves. 44, 47; Hibbard v. Lambe, Amb. 309.

(d) Doyley v. Attorney-General, ubi supra; Crewe v. Dicken, 4 Ves. 97.

(e) Supra, p. 226.