trust of lands in D. it would pass by a devise of all his lands in D. (q), And in another case Sir J. Jekyll, M. R., was of opinion, that the estate of a surviving trustee for preserving contingent remainders, passed by a devise, of "all the rest of his real estate," to his wife and her heirs (r). The subsequent case of ex parte Sergison (s), arose on the will of a mortgagee in fee, and both Lord Alvanley and Lord Roslyn were of opinion that the legal estate passed to the devisee by a general residuary gift of the testator's estate, "both real and personal and of what nature or kind soever, or wheresoever, not thereinbefore specifically devised." However from the circumstances of the case this opinion was not there acted upon (s). So far the cases have been in favour of the trust estate passing by a general devise, but in Strode v. Russell (t), the Lord Chancellor, together with the Master of the Rolls, and Trevor, L. C. J., and Tracy, J., gave it as their unanimous opinion, that mortgages in fee, though forfeited when the will was made, did not pass by a general devise of "all lands tenements and hereditaments"(t). And in Casborne v. Scarfe (u), the same doctrine was laid down by Lord Hardwicke (u). In these two cases the question was respecting estates vested in the testator as mortgagee, and not as a mere trustee. But in Pickering v. Vowles (x), it was said by Lord Thurlow, that "if a man has estates of his own, and also has pure trusts, and gives the residue by his will, only his own estates will pass by the residuary clause” (x). This opinion of Lord Thurlow not being required for the decision of the case was clearly extra-judicial; but in Attorney-General v. Buller (y), it was expressly decided by Lord Roslyn, C., that a general residuary gift of real and personal estate did not pass trust estates vested in the testator, although the general words in the devise were particularly ample, extending to every species of right and interest belonging to the testator. And his Lordship, in the case under consideration, appears to have assented to the general rule, as stated at the bar, "that general words would not pass trust estates, unless there appears to be an intention that they should pass." This rule, it will be observed, is directly the converse of that which has been stated as at present governing the construction on this subject. The authority of this last case appears also to be supported by the subsequent decision of Lord Eldon in ex parte Brettell (z), where a general and very ample residuary gift, of the testator's "estate and effects whatsoever and wheresoever, and of what nature or kind soever," (q) Sir Thomas Lyttleton's case, 2 Ventr. 351. Marlow v. Smith, 2 P. Wms. 198. (s) Ex parte Sergison, 4 Ves. 147. (1) Strode v. Russell, 2 Vern. 625. (u) Casborne v. Scarfe, 1 Atk. 605. 198. (y) 5 Ves. 339. PART II. CHAPTER IV. SECT. 2. PART II. CHAPTER IV. Lord Bray to his natural son, G. H., his heirs, executors, &c. for his and their own proper use and behoof, was held by that learned judge not to pass an estate vested in the testator as trustee for a mortgagee in fee. In this conflicting state of the authorities the case of Lord Braybroke v. Inskip. broke v. Inskip (a) arose, in which the doctrine, as stated at the beginning of this section, was finally established by Lord Eldon after a careful review of all the cases on the subject, and the principles on which they severally proceeded. In that case the heir of a surviving trustee devised all his real estates whatsoever and wheresoever unto his wife, G. A., her heirs and assigns for ever. An objection was taken to the title to the property on the ground, that the legal estate did not pass by the devise to the wife, but descended to the co-heirs at law of the trustee, two of whom were infants and the other a feme coverte. The question came first before Sir William Grant, M. R., who held that the legal estate did pass by the will to the devisee; and this decision was afterwards supported by Lord Eldon, who overruled the objection to the title, and decreed a specific performance of the contract by the defendant. Although testator have beneficial estates, whereon the devise may operate. But the opera His lordship in the course of his judgment remarked of the case of Attorney-General v. Buller, that he did not know in experience any case, in which the proposition was laid down so strong; and he stated on a subsequent occasion, that Lord Roslyn himself had altered his opinion with respect to that case (b). His Lordship also observed with reference to his own previous decision in ex parte Brettell, that, having been brought on upon a petition, it had not perhaps been so attentively considered, as the importance of the point required; although that decision was not intended to infringe upon the general rule as stated above, inasmuch as it proceeded upon the circumstance of there being sufficient on the face of the will to show, that the testator's beneficial estate only was intended to pass (c). Where there is a general devise of all the testator's real estate, it is clear, that the circumstance of his being beneficially entitled to other lands, on which the devise might operate, will not of itself prevent his trust estates from passing (d). But the operation of a general devise in passing trust estates may be tion of a gene- controlled by the intention of the testator. If there be no indication ral devise in passing trust of a contrary intention the words will be suffered to have their legal estates, controlled by the operation, and the trust estates will pass. But if, either from the expressions used by the testator, or from the way in which the property is disposed of, it appears to have been his intention to dispose only of intention. (a) 8 Ves. 417. (b) Lord Braybroke v. Inskip, 8 Ves. 435, 7. (c) 8 Ves. 437. (d) Sir Thomas Lyttleton's case, 2 Ventr. 351; 2 Jarm. Pow. Dev. 147. the estates, to which he was beneficially entitled, the devise will not be suffered to have any more extensive operation (e). Thus where the expressions of the gift, coupled with the relative situation of the parties, show that the testator intended to give only what the donee could enjoy beneficially—as in the case of a general residuary gift to a natural son, his heirs, executors, &c., "to and for his and their own proper use and behoof”—it has been decided, that a mere trust estate will not pass (f). It is to be remarked however, that Lord Eldon in Lord Braybroke v. Inskip stated, that he did not mean in ex parte Brettell to put anything upon the expression, that it was given "to the use and behoof" of the party (g). And in a very recent case it was held by Sir L. Shadwell, V. C., that a general gift by a testator of all his property whatsoever and wheresoever to his wife for her absolute use for ever passed an estate vested in the testator as a trustee (h). On the same principle where a general devise of real estates is for purposes, applicable only to the testator's absolute property, and inconsistent with the beneficial title of another person, it will be held not to operate upon mere trust estates. PART II. CHAPTER IV. SECT. 2. Trust estates will not pass by such a de vise. When? If a beneficial estate only is intended to be given to the devisee. Or if the decharged with vised estates be This doctrine was established in an early case, where a general devise by a testator of all his lands in M. and D., charged with a rent-charge for life, was held not to pass lands vested in him as mortgagee (i). annuities. And a general charge for the payment of debts has been repeatedly Or with payheld to have the same effect in restricting the operation of a residuary devise to the beneficial estate of the testator (k). So a devise of real estates, in trust to sell or realise the same, has been held to be inconsistent with the intention to dispose of any property, which was not vested in the testator for his own benefit (1). But on this point a material distinction has been established between a mere dry trustee, and a trustee by construction of equity. Thus where a testator had contracted to sell an estate, and died before the conveyance was executed, having devised all his real and personal estate to trustees, in trust to sell, Sir Thomas Plumer, M. R., decided, that the devise passed the estate, which had been contracted to be sold: on the ground that the beneficial interest was not so entirely out of the testator, as to preclude the possibility of its becoming the subject of a sale by his trustees in any event (m). ment of debts. Or if the devise be in trust to sell. Distinction, vised estate is affected only by constructive where the de a trust. On the same principle where the devised estates are limited by the Devise of (e) Lord Braybroke v. Inskip, 8 Ves. 436; Doe d. Reade v. Reade, 8 T. R. 118; Wall v. Bright, 1 J. & W. 498; 2 Jarm. Pow. Dev. 146, et seq. (f) Ex parte Brettell, 6 Ves. 577. (g) 8 Ves. 434, 5. (h) Lindsell v. Thacker, 12 Sim. 178. (i) Winn v. Lyttleton, 1 Vern. 4; Duke of Leeds v. Munday, 3 Ves. 348. (k) Duke of Leeds v. Munday, 3 Ves. (m) Wall v. Bright, 1 J. & W. 494. T estates to be held in strict settlement will not pass trust property. PART II. CHAPTER IV. Whether a devise to several persons as tenants in com mon will pass trust estates. Quære? A devise of a less estate than a fee will not. Semble. A devise in fee will pass trust estates held pur autre vie. Before 1 Vict. devise would pass trusts of copyholds: but not of leaseholds. testator in strict settlement, or otherwise tied up by limitations, which would be nugatory or improper, if applied to mere trust property, the devise will not operate upon the testator's trust estates (n). The contrary decision of Lord Hardwicke in ex parte Bowes (o) has clearly been overruled by the subsequent cases (p). It has been decided, that a general devise to several persons as tenants in common in fee, is not inconsistent with an intention to dispose of the mortgage estates of the testator (g). It might probably be a question, whether a similar disposition would pass trust estates; the argumentum ab inconvenienti is certainly strongly against suffering the number of trustees to be thus needlessly multiplied, even if a trustee possessed the power so to increase them (r). It seems, that a general devise conferring a less estate than a fee, would not on principle be held to operate on a trust estate; and Mr. Jarman has suggested that it is thus possible to support the dictum of Lord Hardwicke in Casborne v. Scarfe (s); for in that case the devise would only have carried a life estate (t). It was held in a recent case by Lord Langdale, M. R., that a devise by a testator of all the lands and hereditaments vested in him as trustee or mortgagee in fee passed the trust estates vested in him for an estate pur autre vie as a trustee for preserving contingent remainders (u). Previously to the recent Will Act, 1 Vict. c. 26, a general devise of c. 26, a general real estate would pass copyhold property vested in the testator as trustee (x): but according to the principle established by Rose v. Bartlett (y), a similar devise would not have operated upon leaseholds for years, unless there were no other estate for the devise to take effect upon; or there were otherwise a clear intention on the part of the testator, that they should pass (z). But the 26th sect. of that act provides for the point in question with regard to wills made since the 1st of January, 1838, by enacting, that a devise of the testator's land or any other general devise, which would describe a customary copyhold or leasehold estate shall be construed to include such estates as well as the freehold estates of the testator, unless a contrary intention shall appear by the will. Effect of 26th section of 1 Vict. c. 26. Whethertrust of personal estate will pass by a general bequest to a legatee. Where there is a general or residuary devise of bequest of leaseholds (n) Atty.-Gen. v. Vigor, 8 Ves. 273; Thompson v. Grant, 4 Mad. 438; Galliers v. Moss, 9 B. & Cr. 267; re Horsfall, 1 M'Clel. & Y. 292; but see Mather v. Thomas, 10 Bing. 44. (0) Cited 1 Atk. 605, Sand. n. (p) 2 Jarm. Pow. Dev. 153. (q) Ex parte Whiteacre, Rolls, July, (r) Vide supra, p. 155. (8) 1 Atk. 605. for years or other personal estate held in trust, it is improbable that any question would often be raised as to the title of the devisee or legatee to the mere legal estate. This would vest primarily in the executor or administrator cum testamento annexo by virtue of his appointment; and it is not likely that the legatee would claim his assent to the bequest, unless there were reason to contend that it passed some beneficial interest (a). PART II. CHAPTER IV. SECT. 2. If the claim were made, there seems no reason to doubt, but that Semble, it will. the effect of a residuary or general bequest of personal estate, would be held to extend to trust property of that description, subject to the same rules mutatis mutandis for restricting its operation, as have been established respecting similar dispositions of real estate. When? The devisee of a trust estate, together with the legal interest, will in Devisee may exercise powers general take all the legal powers of disposition, as fully and effectually given to origias the testator himself. But powers vested personally in the original nal trustee. trustee, will not pass to his devisee, unless they be expressly limited to the trustee and his assigns by the instrument creating the trust. Therefore where a discretionary power of disposition was given by will to two trustees and the survivor of them and the heirs, executors and administrators of the survivor, it was held by Sir William Grant, M. R., and that opinion was approved of by Lord Eldon (b), that the devisees of the surviving trustee were not authorized to exercise the power given by the first will (c). And persons claiming by assignment from the original trustee or his heirs in a similar case, will be equally incapable of exercising the power (d). trustee may disclaim. The devisee of a trust estate may doubtless dissent from and disclaim Devisee of the devise, in the same manner as if it were a beneficial gift to him, and in that case no estate passes to him by the will (e). SECT. 3-Of the disposition of the estate of trustees who are under any legal disability. How far trusability could tees under dis convey at common law. At common law trustees, who labour under any legal disability, can dispose of the trust estate only in the same manner and to the same extent as other persons in the same situation. Thus a married woman being a trustee of real estate, could convey only by fine or recovery, or (since the act (3 & 4 Will. IV. c. 74,) for the abolition trustees. of fines and recoveries) by a deed duly acknowledged by her according to the provisions of that act (ƒ). Femes covertes So an infant trustee, or one non compos mentis, was unable to make Infant and lu a) 2 Jarm. Pow. Dev. 154. (b) Walter v. Maunde, 19 Ves. 424. (c) Cole v. Wade, 16 Ves. 27; see Bradford v. Belfield, 2 Sim. 264; 1 Sugd. Pow. 148, 6th ed.; Cooke v. Crawford, 11 Law Journ. N. S., Chanc. 406. (d) Bradford v. Belfield, 2 Sim. 264; Cooke v. Crawford, ubi supra. (e) 1 Jarm. Pow. Dev. 429; ante, Pt. I. Div. IV. Chap. II. Sect. 1. (f) See ex parte Maire, 3 Atk. 479; Radcliffe v. Eccles, 1 Keen, 130. natic trustees. |