accounts as far back as 1791, the decree directed the account to be PART III. Div. I. SECT. 2. taken up to that year (m). And so where the defendants (a corpora- CHAPTER II. tion) admitted their liability to account generally for charity funds received by them, and stated, that they had always charged themselves in their books as debtors to the charity for the amount of the sums appropriated, they were decreed to account generally without any limitation, although it was objected that the account would thus go back for 200 years (n). On The nature of the trust instrument will also materially influence the court, in directing retrospective accounts against trustees of charities for their past appropriation of the funds; and where they have acted honestly though erroneously under an instrument of doubtful construction, they will not be charged with any past misapplication. this point, it has been said by Lord Eldon, " it often happens from the nature of the instrument creating the trust, that there is great difficulty in determining, how the funds of a charity ought to be administered. If the administration of the funds, though mistaken, has been honest, and unconnected with any corrupt purpose, the court, while it directs for the future, refuses to visit with punishment what has been done in time past. To act on any other principle would be, to deter all prudent persons from becoming trustees of charities" (o). There has already been occasion to consider the extent of the jurisdiction of the court, in removing trustees of charities, and appointing others in their places, as well as the circumstances and the manner, in which that jurisdiction will be exercised (p). It may be here repeated, that in charity cases the court will direct, that the newly appointed trustees shall be at liberty to appoint others to succeed them when necessary (q). And also that new trustees of a charity will never be appointed without a reference to the Master (r). The effect of a power in the trust instrument to appoint new trustees has also been considered (s). It may be almost unnecessary to remark, that if there be a gift to an established charitable institution, or to the governors or treasurer &c. of such an institution without expressly declaring any trust, the donees will take as trustees for the charity and not for their own benefit (t). Liability of the trustees where strument is of the trust in doubtful construction. Appointment of new trustees by the court. Gift to a parti cular charity is a trust for the purposes of that charity. PART III. Power for trus be appendant, or collateral. SECT. 3.-Of Trustees of Powers. I.-Of Powers of Sale. II.-Of Powers of Leasing. III.-Of Powers of Changing Securities. IV.-Of Discretionary Powers. I.-Of Powers of Sale. A trustee could rarely be justified in selling the trust estate for any purpose, however beneficial, without an authority express or implied conferred on him for that purpose by the trust instrument; and wherever the nature or duration of the trusts, or the description of the property renders the necessity for a sale at all probable, a power of sale should never be omitted. A power of sale may be given to trustees, either as appendant to the tees to sell may legal estate, and to take effect out of it; or it may exist as a mere collateral authority, unaccompanied by any legal interest in the property to be sold. In the latter case, if the trust be created by will, the legal estate will descend to and remain vested in the testator's heir, until devested by the execution of the power, whereupon it will pass to the vendee (t). For instance if a testator devise lands to his executors to sell, the freehold will pass to them by the devise coupled with the power; but if the devise be merely," that his executors shall sell" the land, the executors take only a power and the freehold vests in the heir by descent (u). And so it seems to be the better opinion, that a devise of lands to be sold by the executors without any words of direct gift, will invest them with a power only, and not pass the legal estate (x). No precise form of words requisite for the crea tion of the power. It is clear, that no precise form of words is requisite for creating a power of sale, powers are mere declarations of trust, and any words, however informal, which show an intention to create such a power, will be sufficient for the purpose (y). Thus, as we have already seen. the trustees will take a power of sale by implication under a trust for the payment of debts: for such a power is necessary to the due execution of the trust (z). Without entering into a discussion of the law affecting powers in general, (which would be foreign to the object of the present work.) we will now proceed to consider some of the principal points, which arise from the power of sale being vested in trustees instead of in the beneficial owners. (t) Earl of Stafford v. Buckley, 2 Ves. 179; Warneford v. Thompson, 3 Ves. jun. 513; 1 Sugd. Pow. 115, et seq. 6th edit.; see Forbes v. Peacock, 11 Sim. 152. (u) See 1 Sugd. Pow. 128, 6th edit., and authorities there cited. (z) Ante, Pt. III. Ch. II. Sect. 2, PI. II.; Wood v. White, 4 M. & Cr. 481, 2. Div. I. CHAPTER II SECT. 3. It has been decided, that where a will directs an estate to be settled PART III. to uses in strict settlement, a power for trustees to sell with the consent of the tenant for life, cannot be inserted in the settlement without an express provision (a): not even where there is a direction Whether a by the testator for the insertion of " all proper powers and authorities power of sale for making leases, and otherwise according to circumstances" (b). can be inserted in a settlement without an exin the will or press direction articles? Effect of a di and proper But it has been held on the construction of marriage articles, that a power of sale and exchange was properly introduced into a settlement, where the articles contained a direction for the insertion of "all usual and proper powers, &c.," in the settlement (c). In the rection to incase of Hill v. Hill (d) the Vice-Chancellor (Sir L. Shadwell) said, sert "all usual "there is a palpable distinction between inserting in a settlement powers. powers for the management and better enjoyment of the settled estates, which are beneficial to all parties, and powers, which confer personal privileges on particular parties, such as powers to jointure, to raise money for any particular purpose, &c. But powers of leasing, of sale and exchange, and (in certain cases) powers of partition, of leasing mines, and of granting building leases, are powers for the general management and better enjoyment of the estates; and such powers are beneficial to all parties." However even in a trust created by articles, if there be no positive direction for the insertion of a power of sale, or at all events of "the usual and proper powers," it seems that such a power cannot be introduced into the settlement (e). And even where there is a general direction in the articles for the insertion of "all usual and proper powers," a trustee, who sells under a power of sale inserted in the settlement under that general direction, can scarcely confer a marketable title according to the present state of the authorities. A power of sale, whether it be a common law authority, or one taking effect under the Statute of Uses, can be exercised only by the parties, to whom it is expressly given. Hence doubts have occasionally arisen as to the validity of the execution of the power after the death of the original donees. For instance, where a power is given to two or more persons by name without any words of survivorship, it cannot be exercised by the others alone after the death or renunciation of any one of the donees (f). But where the power is conferred on "the trustees" as a class and not by name, there the power will continue as long as there are more trustees than one, by whom it may be exercised, although no words of survivorship be added (g). If the power were given to persons nominatim, but also in their character of trustees (a) Wheate v. Hall, 17 Ves. 80. (b) Brewster v. Angell, 1 J. & W. 625; Horne v. Barton, Jac. 437, S. C. (c) Peake v. Penlington, 2 V. & B. 311; Hill v. Hill, 6 Sim. 136; see Williams v. Carter, 2 Sugd. Pow. App. 23. (e) 2 Sugd. Pow. 484, 6th edit. By whom the power is to be exercised. PART III. CHAPTER II. Div. I. SECT. 3. Or where the to trustees and their heirs. without any words of survivorship, it might still be a matter of doubt, Whether the power would exist after the death of any of the original donees (h). Upon the same principle where a power of sale was reserved in a power is given settlement to three trustees by name and their heirs, it was held by the Court of K. B., that two surviving trustees could not execute the power (i). And although this decision was afterwards disapproved of by Lord Eldon, yet that eminent judge felt himself so far bound by its authority as to refuse to compel a purchaser to take a title under somewhat similar circumstances (k). However in a recent case, where a testator devised all his residuary estate to three persons by name, and to their respective heirs and assigns, in trust first that they the "above named” devisees "and their respective heirs and assigns" should sell; the Vice-Chancellor of England held, that on the construction of a will, the two survivors of the three devisees had power to sell, and his Honor rejected the words "respective" as inconsistent with the general intention (1). Power may be exercised by continuing trustees on re nunciation of the others. But not by assigns or de visees of ori ginal trustees, unless expressly named. Whether de can exercise the power in any case. Quære? Where the power is given to several persons by name, (as trustees) and "the survivors and survivor and the heirs of the survivor," it is settled, that the power may be well exercised by the only acting trustee or his heirs, in case the others renounce the trust (m). But where the power is confided to the trustees "and their heirs" only and not their assigns, it cannot be exercised by persons claiming by assignment from the heirs of the original trustee (n). And in a similar case a devisee of the original trustee is equally incapable of exercising the power, for a devise is also an assignment (0). And from the observations of Sir L. Shadwell, V. C. E., in the visee of trustee recent case of Cooke v. Crawford, which has been just referred to, it seems to be very questionable whether a devisee of a trustee would be entitled to exercise powers of sale or other powers vested in his testator as trustee, even where the power was limited to the trustee and his assigns and his Honor in that case expressed a strong opinion against the power of a trustee to delegate the execution of a trust to his devisee in any case (p). Power should express by whom it is to be exercised. The power of sale should be carefully framed so as to avoid any question of this nature, and it should be conferred expressly on the trus tees, and the survivors or survivor of them, and the heirs or executors or administrators of such survivor, and their or his assigns. (h) 1 Sugd. Pow. 141, 144, 6th edit.; Co. Litt. 113, a. Not. 2. (i) Townsend v. Wilson, 1 B. & Ald. 608; S. C. 3 Mad. 261. (k) Hall v. Dewes, Jac. 189. (1) Jones v. Price, 11 Sim. 557. (m) Hawkins v. Kemp, 3 East. 410; Cooke v. Crawford, 11 Law Journ. N. S., Chanc. 406, and 13 Sim. 91; and see Eaton v. Smith, 2 Beav. 239; Sharp v. Sharp, ? B. & A. 405. (n) Bradford v. Belfield, 2 Sim. 264. (0) Cooke v. Crawford, ubi supra. (p) Cooke v. Crawford, 13 Sim. 97; sed vide, How v. Whitfield, 1 Ventr. 338; 1 Freem. 476; and see post, [Disabilities of Trustees]. Div. I. CHAPTER II. SECT. 3. If a power of sale be created by a will, but without declaring by PART III. whom it is to be exercised, but the proceeds of the sale are directed to be applied or distributed by the executor or any other person, the executor or that other person will take the power of selling by implication, unless any contrary intention appear from the will (q). Exercise of the power taken by implication by the fund. ought not to be life. The trustees of a power of sale are interposed principally for pro- the person who tecting the settled estate against the tenant for life. It will therefore is to distribute be a breach of trust on their parts to employ or suffer the tenant for Power of sale life to exercise the power and to sell the settled property as their agent, and the court will refuse to enforce the specific performance of a contract made by the tenant for life under such circumstances (r). But where the trustees have a power of sale with the consent of the But a sale by tenant for life, and the estate is sold, and the purchase-money life treated as received by the tenant for life, who makes a contemporaneous purchase made by him as the agent of the of another estate, it will be held, that the tenant for life acted trustees. throughout as the agent of the trustees, both in the sale and the re-investment, and the estate so purchased will therefore be treated as subject to the trusts of the settlement, although the conveyance is taken absolutely in the name of the tenant for life (s). the tenant for ploy an agent A trustee is not justified in delegating the power of sale to a How far trusstranger (t), although he may doubtless employ a solicitor or other tees may emagent to conduct the usual details of the sale (u). But the agent's to sell. authority must be in writing (x), and signed by all the trustees (y). exercised. Where the power of sale is in the nature of a trust, the trustees When the must effect the sale within a reasonable time, although they are power to be empowered to sell "at such time as they may think fit." For by postponing the sale indefinitely, they might materially affect the relative interests of the cestuis que trusts for life and in remainder (z). However a direction to sell" as soon as conveniently may be" does not Effect of direcrender it more imperative on the trustees to urge on the sale; for the tion to sell "as law implies that direction (a). soon as convenient." without an im A trust to reinvest is usually attached to the exercise of a discre- Whether trustionary power of sale given to trustees. However it does not appear tees may sell to be absolutely necessary, that the trustees should have another mediate intenpurchase immediately in view before they sell, even where the settle- tion of reinment does not contain the usual direction, that until a convenient Quare? purchase can be found, the money shall be laid out at interest (b). (9) Newton v. Bennet, 1 Bro. C. C. 135 ; Elton v. Harrison, 2 Sw. 276 n.; Blatch v. Wilder, 1 Atk. 420; Bentham v. Wiltshire, 4 Mad. 44; Tylden v. Hyde, 2 S. & St. 238; Forbes v. Peacock, 11 Sim. 152; Ward v. Devon, ib. 160, stated; sed vide Patton v. Randall, 1 J. & W. 189. (r) Mortlock v. Buller, 10 Ves. 309, 313. v. Noel, 5 Mad. 498. (x) Mortlock v. Buller, 10 Ves. 311. (z) Walker v. Shore, 19 Ves. 387, 391; (a) Buxton v. Buxton, 1 M. & Cr. 80; see Fitzgerald v. Jervoise, 5 Mad. 29; Garrett v. Noble, 6 Sim. 573. (b) Mortlock v. Buller, 10 Ves. 309; 2 Sugd. Pow. 511, 12, 6th edit. vestment. |