PART I. CHAPTER II. Concurrence of to sell and convey to the purchaser (ƒ); and to give valid receipts for the purchase money (g). And the concurrence of the disclaiming party in any of these acts is not necessary and cannot therefore be the disclaiming enforced; and it is immaterial, that he is expressly named in the trust instrument as one of the parties, by whom the power is to be exercised (h). trustee not necessary to the execution of a power or a conveyance. Secus, if the disclaiming trustee has once acted and then released. Effect of disclaimer of copyholds on lord's fines. Powers that It has been seen also in a former chapter, that a power given to the trustee or the "survivor," may be well exercised by the " acting" trustee on the refusal of the others (i). It is scarcely necessary to add, that if the trustee has once accepted the trust in any manner, a purchaser cannot safely dispense with his concurrence in the sale, and in the receipt for the purchase-money, although he may have attempted to disclaim and has released his estate to his co-trustees (k). It is no objection to a disclaimer in the case of copyholds, that it was made to defeat the lord's right to fines (7). Powers however, that imply a personal confidence in the donees, can only be exercised by the persons, to whom they are expressly given (m). imply personal Such powers therefore, if given only to the particular persons named, confidence in the donee, do not go to the other trustees on the dis claimer of one. But if it be intended that the acting trustees should exercise such powers, they may do so. will not be transferred on the disclaimer of one of them to his co-trustees, but will be absolutely gone. But where the expressions used by the donor import an intention, that the power shall be exercised by the acting trustees or trustee; a power even of this description will be well exercised by those who accept the trust the disclaimer of the others. Thus in a recent case a upon testator stated in his will, that he had purposely omitted the name of his son John; but in the hope that his conduct might change, and that he would behave and demean himself with affection to his brothers and sisters, and with respect towards his (the testator's) executors and trustees thereinbefore named, he thereby gave unto his said trustees and the survivors of them, and the executors and administrators of the survivor full power and authority to permit his son John to have an equal share of his estate with his brothers and sisters. One of the three executors and trustees alone proved the will and acted as trustees : of the two others, one renounced, and the other declined proving. The only acting trustee made a statement in a state of facts laid before the Master, to the effect, that the testator's son John had conducted himself well and properly, and to his (the trustee's) entire satisfaction: and it was held by Lord Langdale, M. R., that the acting trustee had (f) Cooke v. Crawford, 11 Law Journ. (g) Smith v. Wheeler, 1 Ventr. 128; V. & P. 51. (h) Crewe v. Dicken, 4 Ves. 100; Adams v. Taunton, 5 Mad. 435. Sharp v. Sharp, 2 B. & A. 405. (k) Crewe v. Dicken, 4 Ves. 97; 2 Sugd. V. & P. 50, 1. (1) Rex v. Wilson, 10 B. & Cr. 80. (m) Vide supra et post, Part III. Div. I. Ch. II. sect. 3. executed the power, which was vested in him, and that John's representatives were therefore entitled to an equal share in the testator's estate with his other children (n). This decision must have proceeded upon the principle established (as we have already seen) in the case of Sharp v. Sharp, that by the term "survivor" the "acting" trustee was intended (o). PART I. Div. IV. CHAPTER II. Power given to disclaiming party by name fails on the disclaimer. Where a power is given to persons expressly by name in their individual character and not as trustees, it can only be exercised by the persons, to whom it is given, and will therefore fail on the disclaimer of any one of them; unless that event be provided for by the terms of the power (p). Where a trustee has disclaimed by deed no case has ever occurred Disclaimer by in which he has been allowed to revoke the disclaimer, and assume the office of trustee. A disclaimer moreover, to be valid, must be absolute (g); it is conceived therefore, that a power of revocation attached to a deed of disclaimer would invalidate it; and if there be no power to revoke the deed, the party who executes it, would be estopped from claiming the estate. deed irrevo cable. Secus, where made by an answer in In one case however where a trustee had disclaimed by his answer to a bill, (which answer however was not put in on oath,) the court appears to have permitted him to revoke the disclaimer, and accept the Chancery. trust (r). It is for the benefit of the cestuis que trusts, that the disclaimer of a trustee should be testified by a deed executed by him for that purpose. Therefore the expense of such a deed must doubtless be borne by the trust estate. A trustee, who has never acted, and who has already disclaimed, ought not to be joined as a party to a suit respecting the trust property (s). Expense of claimer borne by trust estate. deed of dis Trustee, who made a party Disclaiming trustee has his costs only as between party and party. But a person, who has been named in an instrument, as a trustee, and has not actually disclaimed, will be properly made a defendant to not disclaimed. such a suit (t). And if he then disclaim by his answer, and the bill is dismissed as against him, he will be entitled to his costs only as between party and party, and not as between solicitor and client. In the case of Sherratt v. Bentley (u) indeed Sir J. Leach, M. R., gave a defendant under such circumstance his costs as between solicitor and client. But in a subsequent case, where Sherratt v. Bentley was cited, the same learned judge laid it down as the general rule, that a person named trustee, who declines to accept the office, is in the situation of any other defendant, against whom a bill is dismissed, and (n) Eaton v. Smith, 2 Beav. 236; vide post (Discretionary Powers). (0) 2 B. & A. 405. (p) 1 Sugd. Pow. 139, &c. (9) Ante, p. 203. (r) Miles v. Neaves, 1 Cox, 159. (8) Richardson v. Hulbert, 3 Anstr. 68. (u) 1 R. & M. 655. PART I. Div. IV. therefore could only have the ordinary costs as between party and CHAPTER II. party (x). And this last decision was afterwards acted upon by Sir L. Shadwell, V. C., where the plaintiffs, instead of dismissing the bill at once against the trustee or his disclaimer, continued him as a party up to the hearing, and thereby occasioned him additional costs (y). The decision in Sherratt v. Bentley, must therefore be considered as overruled. However, if there be any vexation in the conduct of the plaintiff towards the defendant, who has disclaimed, as where he replies to the answer, and serves a subpœna to rejoin, that might make a difference in the mode of taxing the costs in favour of the defendant (z). (x) Norway v. Norway, 2 M. & K. 278. (y) Bray v. West, 9 Sim. 429; see 3 Dan. Ch. Pr. 77. (z) See Williams v. Longfellow, 3 Atk. 582. PART II. OF THE ESTATE OF TRUSTEES. OF THE NATURE, EXTENT, AND LEGAL PROPERTIES, OF THE ESTATE OF CHAPTER I. OF THE NATURE OR QUALITY OF THE ESTATE OF TRUSTEES; AND THEREIN I. Where the Trust Property consists of Real Estate. II. Where it consists of Personal Estate. SECT. 1.-Where the Trust Property consists of Real Estate. Ar law the trustee is regarded as the real owner of the estate, vested in him, whether it be real or personal; and the nature and quality of that estate will, in general, depend upon the limitations contained in the instrument, under which he takes. However, notwithstanding the apparent simplicity of this general rule, very many cases have arisen in practice, which depend solely upon whether the legal estate is or is not vested in the trustee. The question, to which we are now addressing ourselves, is not whether the person named in the instrument, shall hold beneficially, or as a trustee; (for we are now supposing, that the expressions are such as to preclude any beneficial claim;) but the point to be considered is-whether any legal interest at all passes to him under the limitations. It has been already stated, that, according to the construction put upon the Statute of Uses, the legal estate in many cases will not be executed by the statute in the cestui que use on a conveyance or devise to uses, but will vest in the donee to uses, as a trustee for the cestui que use, or cestui que trust, as it would have done before the statute (a). We have seen moreover, that three direct modes, of creating a trust of real estate arise from this construction-1st, Where a use is limited upon a use; 2nd, Where a copyhold or leasehold estate is limited to uses; and 3rd, Where the donee to uses is entrusted with (a) Ante, Part I. Div. I. Chap. II. sect. 1. PART II. CHAPTER I. SECT. 1. Three modes of creating a estate since the Statute of Uses. trust of real P PART II. 1st. Where a use is limited upon a pre vious use by deed or will. Or by appointment under a power. 2nd. Where copyholds, or leaseholds, are duties or powers, for the due discharge of which it is requisite, that he should take the legal estate (b). The two first of these rules originated in a strict and technical construction of the words of the statute, which is expressed to apply to cases, "where any person is seised of any lands or tenements to the use of any other person." It was decided therefore, that a use limited upon a preceding use, did not come within the provisions of the statute; as the second cestui que use could not be said to be seised to the use. And it was held, that the legal estate was executed in the first cestui que use, who was thereupon treated in equity as a trustee for the person, to whom the ultimate use or trust was limited (c). Thus if land were conveyed by feoffment or other mode of assurance to A. and his heirs to the use of B. and his heirs to the use of C. and his heirs (d)-Or to B. and his heirs to the use of B. and his heirs to the use of C. in fee or for life with remainders over (e)—Or to B. and his heirs to the use of B. and his heirs, in trust to permit C. and D. to receive the rents (ƒ)—In all these cases it has been held, that the statute executes the first use in B. and his heirs, and that the legal estate is vested in him as a trustee for the parties, to whom the beneficial interest is given. And in the case of a devise the rule of construction is the same (g); for it is settled on principle and authority, that the Statute of Uses applies to uses created by will (h). So, where lands are conveyed by covenant to stand seised, bargain and sale, or by appointment under a power, to A. and his heirs to the use of B. and his heirs; the legal estate will vest in A., and B. will take only a trust or equitable estate; for in each of these instances the conveyance does not operate by transmutation of the seisin to A. but merely passes the use to him, while the seisin to serve the use remains undisturbed in the original owner (i). The second case in which the legal estate will be vested in the trustee, is-where copyhold or leasehold estates are limited to uses. limited to uses. It was resolved by all the judges in the 22nd of Elizabeth, that the word "seised" was only applicable to freeholds; consequently the statute was held not to apply to copyholds or terms for years; of which no seisin can be had: and where lands of either of those tenures are (g) Jones v. Lord Saye and Sele, 1 Eq. Ca. Abr. 383; Hopkins v. Hopkins, 1 Atk. 581; Marwood v. Darell, Ca. Temp. Hard. 91; 1 Pow. Dev. 220. (h) 1 Sugd. Pow. 1747, 6th edit.; see Co. Litt. 271, b. Butl. note; 1 Sand. Us. 195; 2 Fonbl. Tr. Eq. 24, n. c.; 1 Pow. Dev. 209. (i) Gilb. Uses, 67, 347, n.; 1 Cruis. Dig. tit. 12, Ch. 1, s. 9; 1 Sugd. Pow. 10,240, 6th edit. |