such person never come into existence, and holding it to take effect in the event of his being born and dying above that age in the lifetime of the testator. In the former case, the contingency of no such person coming in esse may be considered as included and implied in the contingency expressed; but, in the latter, the event to which it would be applied is the exact opposite or alternative of that on which the substituted gift is dependent. To let in the ulterior devise in such case would be to give the estate to one, in the very event in which the testator has declared that it shall go to another, whose incapacity, by reason of death, to take, seems to form no solid ground for changing its object. In the event which has happened, the lapsed devise must be read as an absolute gift.

711

CHAP. L.

prior gift, of

The same principles which determine the effect up- Effect upon on a posterior or executory gift, of a prior gift, apply failure of exealso to the converse case, namely, that of the failure of

and the consequence of
According to these prin-
A. and his heirs, and in

an ulterior or executory gift,
such failure on the prior gift.
ciples, if lands are devised to
case he shall die without issue living at his decease, then
to B. and his heirs, and B. dies in the testator's life
time, and afterwards A. dies accordingly without issue,
having survived the testator; the event having happened
upon which the ulterior devise would have taken effect, and
that devise having failed by lapse in the testator's lifetime,
the title of the heir is let in; or (if the will be regulated
by the new law) then the title of the residuary devisee, the
effect being precisely the same, in the events which have
happened, as if the ulterior devise had been a simple abso-
lute devise in fee. On the other hand, if the devise were
to A. and his heirs, and if he should die without leaving
issue at his decease, then to B. for life, with remainder to
his children in fee, and A., having survived the testator,

cutory gift.

CHAP. L.

When prior

dies without leaving issue, and B. also dies without having had a child (whether such event happens in the testator's lifetime or after his decease), the devise to A. becomes absolute and indefeasible, by the removal out of the way of the executory devise engrafted thereon; such devise having failed, (not by lapse, as in the former case, lute by failure but) by the failure of the event on which it was made dependent (t). If B. had had a child, and such child had died in the testator's lifetime, the case would, it should seem, according to the principle of the case of Tarbuck v. Tarbuck (u), have become assimilated to the case first stated.

gift made abso

of executory

gift.

The difference then, in short, is between a failure of the posterior gift by lapse, letting in the title of the heir or residuary devisee (as the case may be), and a failure in event, of which the prior devisee has the benefit.

(t) Jackson v. Noble, 2 Keen, 590.

(u) Ante, p. 709.

The in

A DEVISE of estates vested in the testator as trustee or mortgagee is found in every well drawn will. sertion of such devises evidently supposes that the trusteeship relating to the estate vested in the testator, will commonly pass with that estate to the devisee; for the severance of the estate and the fiduciary duty could not be a proper act on the part of the trustee. Cases may be suggested in which the greatest inconvenience would arise from permitting a trust estate to descend. The trustee's heir may be an infant or married woman, or insane, or resident abroad, or there may be several coheirs or coheiresses, each labouring under some such disability, or the trustee may happen to have no heir-at-law, as is necessarily the case where he is illegitimate in birth and dies without issue, or the several parts of the trust estate may descend in different modes. To say that a trustee ought, under such circumstances, to leave the estate to devolve to the person whom the law constitutes his legal successor, is rather a startling doctrine; and yet we are

Whether trusts can be performed by devisee

of trust estates.

CHAP. LI.

driven to this conclusion if the trusteeship does not pass with the estate. Indeed but little advantage would be gained by a devise of the estate, if the devisee were incaCase of Cooke pable of exercising the functions of the office.

v. Crawford.

Devisee of

a title to a urchaser.

A question of this nature arose in the case of Cooke v. Crawford (a), which was as follows. A testator devised all his real and personal estates to A. B. and C., upon trust, that they, or the survivors or survivor of them, or the heirs of such survivor, should as soon as conveniently might be after his decease, but at their discretion, sell all the real estates; and he authorized the trustees and their heirs to enter into contracts, and make conveyances, and declared that the receipt or receipts of the said A. B. and C., or of the survivors or survivor of them, or the heirs, trust estate held executors, or administrators of such survivor, should be unable to make good discharges to the purchasers. And the testator directed his said trustees, their heirs, executors, or administrators, to stand possessed of the proceeds of the sale of the real estate, and the conversion of his personal estate, which he thereby directed, upon certain trusts. Two of the trustees declined the trusteeship, and the third (who was also the heir-at-law of the testator) accepted the trust, but died before the sale of the estates, having made his will, whereby he devised and bequeathed all estates vested in him as a trustee, unto D. and E., their heirs, executors, administrators, and assigns, upon the trusts affecting the same respectively, and appointed D. and E. executors of his will. D. and E. entered into a contract to sell part of the trust estate, when the question arose, whether they, as devisees and executors of the surviving trustee, could make a title to the purchaser. Sir L. Shadwell, V. C., held that they could not, and that the devise of trust estates by the vendors' testator was

(a) 6 Jurist, 723.

CHAP. LI.

Sir L. Shadwell,

a unauthorized act. "The sole question," he observed, "is whether the execution of a trust by persons to whom the testator has given no power, is good. There has been no case in which any persons other than those persons mentioned, appointed for the purpose of executing the trust, have been held to have such a power. It is clear, that when the heir-at-law thought proper to devise Judgment of the legal estate which he had, he did something he was v. c. not authorized to do; and here I must protest against the argument which was made use of, namely, that it was beneficial to the estate, that a trustee should have been appointed in this manner, and that generally a trustee should have power to devise the trust. If the matter were pushed to extremity, I rather apprehend, that the estate of the person who devised it ought to pay the expenses, for it is not lawful for persons who have a trust estate to devise it in the manner alluded to; and I see no distinction between a conveyance inter vivos and a post-mortem conveyance; for if a trust could be lawfully executed by a trustee by devise, it would also be lawful by a conveyance inter vivos; but Bradford v. Belfield (b) being acquiesced in, I think that the case is concluded; and if not decided by that case, still, the case of Townsend v. Wilson (c) decides the present question; for it was

(b) In Bradford v. Belfield, 2 Sim. 264, it was held, that a trust for sale, vested in A. and his heirs, could not be executed by an assignee of the heir of A., i. e. a person to whom the heir, in his lifetime, conveyed the estate. This, therefore, was a question, not between the hæres natus and hæres factus of the trustee, but as to the competency of the alienee of the former to execute the trust. The trustee having per