effects should become the absolute property of such issue; and in case his daughter should die before his wife, and leave no issue, he directed that all his said real and personal estate should be divided between certain nephews and nieces of himself and his wife therein named. By the usual trustee clauses, the testator declared, that his said trustee and trustees of that his will should be charged and chargeable only with such moneys as they should actually receive by virtue of the trusts thereby reposed in them, &c.; and that it should. be lawful for his said trustees respectively, by and out of the moneys which should come to their or his hands, to retain or allow to each other all costs, &c.; but there was no clause declaring that the receipts of the trustees or trustee should be an indemnity to purchasers of the testator's estate for the moneys therein expressed to be received. The testator thereby appointed his wife executrix, and Lane and Powell trustees and executors of his will; and he died in 1845. Lane and Powell and the widow proved the will, and the two former accepted and acted in the trusts of the devise. Powell died in 1851, the £2000 not having been raised.

Lane, for the purpose of raising the £2000, caused certain of the devised premises to be offered for sale by public auction on the 19th May, 1852. The ninth condition of sale was as follows:-The whole of the property is sold by the vendor under the trusts of the will of Mr. Daniel Foster, deceased, the produce of which is to be invested upon the trusts of such will, and the purchaser shall be satisfied with the investment by the vendor, or, in case of his death, by his personal representatives, of the purchase-money for each lot (after deducting the costs incident to the sale of the property) within twenty-one days after the receipt of such purchase-money, in the name of the vendor or his personal representatives, in such of the public funds as he or they may elect; and he or they will, if required by any purchaser, sign a declaration, that such investment is made on the trusts of the will of the said Daniel Foster, every such declaration to be prepared and executed at the expense of every purchaser requiring the same; and the respective purchasers are hereby excluded from making any objection to the title on account of the omission from the said will of a clause authorizing his trustees or the vendor to give discharges for the purchase-money of the property to be sold under the trusts of the will.

The defendant G. Debenham became, at the sale, the purchaser of Lot 1. He subsequently objected to the title, on the ground that the trust in the will for raising the sum of £2000 could not be exercised by the plaintiff as the surviving trustee. This question the parties agreed. to submit to the court in the form of a special case.

VICE-CHANCELLOR [SIR WILLIAM PAGE WOOD]. The devise in this case to Lane and Powell, their executors and administrators, of the specific freehold estate and other property, "and all other his real and personal estate and effects whatsoever and wheresoever," upon

the trusts subsequently declared, is a devise which clearly passes the whole fee to the trustees, although the words executors and administrators are inapt words as to the realty. The question as to the mode of raising the £2000 will not arise, unless the legatee for whose benefit it was intended is alive, a fact which is not stated in the special case. Looking at the question, which, it appears by a letter stated in the case, was asked by the purchaser, whether that person were alive,to the fact that the abstract was then sent, and that the objection taken was that the discretion as to sale cannot be exercised by one trustee alone, and that the sum might be raised otherwise, I think I may assume the fact of the existence of the party interested at the time of the sale. It will be proper that the declaration of the court should be prefaced by reciting that it proceeds upon that assumption. The main question is, whether or not, there being a direct trust to raise £2000 by sale or otherwise, and thus a discretion to be exercised, and one of the trustees being dead,-it is thereby rendered impossible for the surviving trustee to execute this trust without the direc-. tion of the court. The money, it is clear, must be raised; can the surviving trustee raise it by means of a sale, or is it necessary to come to the court in order that the court may exercise its discretion whether it is to be by sale, by mortgage, or by some other appropriation?

Mr. Walker has argued, that, whether the case be one of a power or a trust, if it be confided to two persons, or if it be a mere trust for sale, if it be said that the sale is to be made by two persons, a survivor of the two can never execute it. The argument proceeds, as it appears to me, upon an entire disregard of the distinction between powers and trusts. No doubt, where it is a naked power given to two persons, that will not survive to one of them, unless there be express words, or a necessary implication upon the whole will, showing it to be the intention that it should do so. But the ground of that rule is, that, where the testator has disposed of his property in one direction, subject to a power in two or more persons enabling them to divert it in another direction, the property will go as the testator has first directed, unless the persons to whom he has given the power of controlling the disposition exercise that power. He, therefore, to whom the testator has given the property, subject to having it taken from him by the exercise of the power, has a right to say that it must be exercised modo et forma. It is therefore a rule of law, that, in all cases of powers, the previous estate is not to be defeated unless the power be exercised in the manner specifically directed. When, on the other hand, a testator gives his property, not to one party subject to a power in others, but to trustees, upon special trusts, with a direction to carry his purposes into effect, it is the duty of the trustees to execute the trust; thus, if the direction be to raise a certain sum of money, the estate is thereby at once charged, and it becomes the duty of the trustees to raise the charge so created. If an estate be devised

to A. and B. upon trust to sell, and thereby raise such a sum, it is I think a novel argument, that, after A.'s death, B. cannot sell the estate and execute the trust.

In Nicloson v. Wordsworth, 2 Swanst. 365, and Crewe v. Dicken, 4 Ves. 97, and that class of cases, the question was a different one,whether, under a devise to several persons, upon trust to sell,—where the sale takes place in the lifetime of one who has released or disclaimed the trust, the other trustees, in whom the estate is vested by such release, can execute the trust. In Crewe v. Dicken, there was a gift to A. and B., in trust that they and the survivor of them should sell. One disclaimed, so that in fact the sale was not made by the survivor, and the question was whether the other trustee could sell. Mr. Walker said, that that class of cases turned on the construction given to the word survivor; but it was not only that-it was a question whether, in an event not contemplated by the testator, a person who was acting in the trusts, and in whom the devised estate was vested, could make a good title. In Nicloson v. Wordsworth, Lord Eldon said, he had not much doubt, and that in his own case, if he were himself the purchaser, he would not reject the title on that ground alone. Where there is a power given to A. and B., and no estate given to them, if A. dies or renounces, B. alone cannot make a title. Lord St. Leonards thus states the rule:-"It is regularly true at common law, that a naked authority given to several cannot survive" (1 Sugd. Pow. 143); and he adds, "the same doctrine applies to powers operating under the Statute of Uses;" and he cites the case from Dyer, "where cestui que use in fee, before the Statute of Uses, willed that his feoffees A., B., and C. should suffer his wife to take the profits for her life, and that after her decease the premises should be sold by his said feoffees,-one of the feoffees died, and then the wife died;" and it was ruled that the survivors could not sell. But if an estate be given to two persons, upon trust to sell, there is no doubt the survivor may sell. The case is then within the rule put by Lord Coke, and which I am not aware has ever been disputed, that "as the estate, so the trust shall survive."

The case of Cooke v. Crawford, 13 Sim. 91, and others, which were relied upon, turned upon the question, whether the trustee could delegate his authority. The parties to whom the estate had been devised for sale had attempted to transfer or devise it to others; and it was held, that the parties thus irregularly constituted trustees of the estate could not exercise the powers, or sell or give discharges to the purchasers.

The case before the Master of the Rolls, M'Donald v. Walker, 14 Beav. 556, was of the same description. The estate and powers were given to two trustees and the survivor of them; and the question was, whether the survivor could hand over to a devisee of the estate the performance of the powers also; and the Master of the Rolls held that to be so doubtful, that he could not force it upon an unwill

ing purchaser. Here the estate has not been transferred or devised to other persons, but remains in the survivor of the trustees, in whom the testator placed it.

The real difficulty, if it be one, is in the second point; upon which the argument for the defendant proceeded, the trust to raise "by sale or otherwise." I do not think the words, "at their discretion," are important. It is said, that the sum might be raised by mortgage or appropriation; and that this is a species of authority which the court will not permit one person to exercise, where it was given originally to two. If, it was asked, the authority follows the estate,-when, on the decease of the trustee, the real and personal estate is separated,with which estate does it go? Is the heir or the executor to have it? I do not say that a difficulty might not arise upon this point, but it has not arisen. There might be some question whether the authority had come to an end if the real and personal estate had fallen into different hands; but one trustee still alive; and I apprehend, that where you have an absolute trust to raise out of a common fund a sum of money, either by sale or otherwise, in clear terms, as in this case, there is no such difficulty as has been suggested. The sum being necessary to be raised, it is clear, that, if the case were brought here, the court would direct the surviving trustee to raise the money, he having the whole legal estate, and being subject to the obligation to execute the trust. He has the same power as was given to the two trustees,- -a power arising from the combined circumstances of the absolute duty which is imposed upon him, accompanied by an estate which enables him to perform it.

The trustee has, in this case, executed the duty which the trust has cast upon him; and I am asked by the defendant to say, that, in doing so, he has committed a breach of trust, because he has proceeded to raise the money after the death of his co-trustee. If I were to lay down such a rule, where is it to stop? It would follow, that, whenever an estate is vested in two or more trustees to raise a sum by sale or mortgage, or even to sell by auction or private contract, the parties must, after the death of one of the trustees, come to this court for directions before they can execute the trust. The court has not better means of exercising the option than the party against whom the objection is taken, nor are its means so good. I think, as I have observed, that the fallacy of the argument on behalf of the defendant is in mixing together the rules applicable to bare powers or authorities, and those applying to interests.

7Accord: In re Bacon [1907] 1 Ch. 475; Faulkner v. Lowe, 2 Exch. 581, 594; Hind v. Poole, 1 Kay & J. 383; Eaton v. Smith, 2 Beav. 236; Reid v. Reid, 8 Jur. 499; Attorney General v. Gleg, 1 Atk. 356; In re Cookes' Contract, 4 Ch. Div. 454; Golder v. Bressler, 105 Ill. 419; Gray v. Lynch, S Gill (Md.) 403; Gutman v. Buckler, 69 Md. 7, 13 Atl. 635; Bradford v. Monks, 132 Mass. 405; Putnam v. Fisher, 30 Me. 523; Gaines v. Fender, 82 Mo. 497, 506.

It has been held that it made no difference that the instrument creating

CHAPTER XXV

POWERS IN TRUST AND GIFTS IMPLIED IN DEFAULT OF APPOINTMENT

HARDING v. GLYN.

(Court of Chancery, 1739. 1 Atk. 469.)

Nicholas Harding in 1701 made his will, and thereby gave "To Elizabeth his wife all his estate, leases, and interest in his house in Hatton Garden, and all the goods, furniture, and chattels therein at the time of his death, and also all his plate, linen, jewels, and other wearing apparel, but did desire her at or before her death, to give such leases, house, furniture, goods and chattels, plate and jewels, unto and among such of his own relations, as she should think most deserving and approve of," and made his wife executrix, and died the 23d of January, 1736, without issue.

Elizabeth his widow made her will on the 12th of June, 1737, “and thereby gave all her estate, right, title, and interest to Henry Swindell in the house in Hatton Garden, which her husband had bequeathed to her in manner aforesaid; and after giving several legacies, bequeathed the residue of her personal estate to the defendant Glyn and two other persons, and made them executors," and soon after died, without having given at or before her death the goods in the said

the trust provided for the filling of vacancies among the trustees and that the new trustees were given all the powers of the old trustees. In such case, therefore, the sole surviving trustee could exercise the power of sale though the vacancies had not been filled. Belmont v. O'Brien, 12 N. Y. 394; Parker v. Sears, 117 Mass. 513. But see O'Brien v. Battle, 98 Ga. 766, 25 S. E. 780. If the power in trustees is to appoint in a manner different from that prescribed by the settlor, it has been held that the power, though given, proceeds generally, was exercisable only by those named, so that upon the death of one, the power could not be exercised. See Cole v. Wade, 16 Ves. Jr. 27; Hadley v. Hadley, 147 Ind. 423, 46 N. E. 823; Dillard v. Dillard, 97 Va. 434, 34 S. E. 60.

But in In re Smith [1904] 1 Ch. 139, where the power was given to my "said trustees" to sell and apply the principal for the wife, who took a life estate, it was held that the power could be exercised by any trustee for the time being.

In Pennsylvania Co. v. Bauerle, 143 Ill. 459, 33 N. E. 166, where the power of sale was given to four trustees, all of whom qualified in Pennsylvania, the domicile of the testator, but one of whom was a Pennsylvania corporation which did not comply with the laws of Illinois, and therefore could not act in the sale of Illinois land with the other trustees, it was held that the power could not be exercised by the three trustees who were competent to act in the sale of Illinois real estate, and that specific performance would not be decreed for the trustees against a purchaser.