REPORTS OF CASES

ARGUED AND DETERMINED IN

THE ROLLS COURT.

1844: July 1, 6, 8.

TITLEY V. WOLSTENHOlme.

A testator devised real and personal estate, on certain trusts, which, as the court considered, the testator intended to be performed by his trustees named, and the survivors and survivor, and by the heirs and assigns, or by the executors or administrators, of the survivor. The will contained no power to appoint new trus tees. The surviving trustee devised and bequeathed the trust estates and powers to A., B., and C., upon the trusts of the first will: Held, that this devise and the appointment of A., B., and C. as trustees, were valid.

Where a trust estate is limited to several trustees, and the survivors and survivor of them, and the heirs of the survivor of them, the surviving trustee does not commit a breach of trust by not permitting the trust estate to descend, or by devising it to proper persons, on the trusts to which it was subject in the hands of the surviving trustee. Semble.

THE question in this cause related to the validity, in equity, of a devise made by a surviving trustee of the trust estates, having regard to the particular expressions used in the will creating the trust, and to the fact, that no express power of appointing new trustees was thereby given. The circumstances which gave rise to the question are as follows:

Richard Titley, the testator, by his will dated in 1828, devised and bequeathed his real and personal estate to his wife, his son Richard, and Robert Tebbutt, *"their heirs, [*426] executors, administrators, and assigns," upon the trusts, &c. after mentioned. He then declared the trusts, which, on eleven several occasions, he expressed as being to be performed

1844-Titley v. Wolstenholme.

by "the said trustees, and the survivors and survivor of them, his or her heirs and assigns." The same persons were empowered to sell the residuary real estate, and to give receipts for the purchase money, and "the said trustees and executors, and the survivors and survivor of them," were to get in the personal

estate.

The "said trustees and the executors, and the survivor and survivors of them, his or her executors and administrators," were to apply the proceeds of the sale of the real estate directed to be sold, and of his personal estate, in payment of specified legacies to his children, and were to invest the residue in realty, and apply the rents as therein mentioned, and in the mean time to invest in the funds, &c.

He declared, that "if it should appear to his said trustees, or the survivors or survivor of them, his or her heirs or assigns, that it would be advantageous" to sell his estate at Gorton, or the estates to be purchased " by the said trustees," by virtue of the powers therein before given them, it should be lawful "for the said trustees, or the survivors or survivor" of them, to do so.

There was a power of leasing to "his said trustees for the time being," and an indemnity clause to his "trustees and executors;" and the testator declared, that "the said trustees and executors, and each of them, their and each of their heirs, executors, administrators and assigns," might reimburse themselves their costs, &c. &c.; and he appointed his wife, [*427] Henry *Burgess, Robert Tebbutt, and his son Richard

executors.

The will contained no power to appoint new trustees.

By the deaths of the other parties, Robert Tebbutt became the sole surviving executor and trustee.

Robert Tebbutt, by his will dated in 1838, after disposing of his own real and personal estate, devised and bequeathed to Edward Titley, David Waddington, and Charles Wolstenholme, their heirs, executors, administrators, and assigns, all the trust estates, moneys, and premises vested in him as surviving devisee in trust and executor of the will of Richard Titley, upon the trusts, &c., &c., expressed in the will of Richard Titley; and he appointed Wolstenholme, Crompton, Unwin, and Ollier, executors.

1844.-Titley v. Wolstenholme.

This bill was filed by the cestuis que trust under the will of the original testator, praying a declaration that Robert Tebbutt was not authorized to appoint trustees, and that the devise and bequest of the trust estates by his will was invalid and ineffectual, and for the appointment of new trustees, and conveyance to them of the trust premises.

Mr. Bacon for the plaintiffs.-The will of Titley gives no authority to the trustees to nominate new trustees; the devise of the trust estate is therefore invalid, and new trustees should be appointed under the authority of the court. This case is governed by the decision in Cooke v. Crawford,(a) in which case a testator devised his real estates to A., B., and C., in trust *that they, or the survivors or survivor of them, or the [*428] heirs of the survivor, should, as soon as conveniently might be after his decease, but at their discretion, sell the same; and he empowered them and their heirs to make contracts with and conveyances to the purchasers: and declared that the receipts of them, or the survivors or survivor of them, or the heirs, executors, or administrators of such survivor, should be good discharges to the purchasers: and he directed that they, their heirs, administrators, and assigns should hold the proceeds of the sale upon certain trusts. A. and B. disclaimed, and C. alone acted. He devised the estates to M. and N. upon the trusts affecting the same. After his death, M. and N. agreed to sell the estates to P.: it was held by Sir L. Shadwell that M. and N. were not entitled to execute the trust for sale, as they were the devisees, and not the heirs, of C.

The Vice-Chancellor of England, in giving judgment in that case, said, "It is plain that, when William Hall, who, by the disclaimer of Burkitt and Woolley, became the sole trustee, thought fit to devise the legal estate that was vested in him, he did an act which he was not authorized to do. And here I must enter my protest against the proposition, which was stated in the course of the argument, that it is a beneficial thing for a trustee to devise an estate which is vested in him in that character. My opinion

1844.-Titley v. Wolstenholme.

is, that it is not beneficial to the testator's estate that he should be allowed to dispose of it to whomsoever he may think proper; nor is it lawful for him to make any disposition of it. He ought to permit it to descend; for, in so doing, he acts in accordance with the devise made to him. If he devises the estate, I am inclined to think that the court, if it were urged so to do, would order the costs of getting the legal estate out of the devisee, to be [*429] borne by the assets of the trustee. I see no substantial distinction between a conveyance by act inter vivos, and a devise; for the latter is nothing but a post mortem conveyance; and, if the one is unlawful, the other must be unlawful."

In Townsend v. Wilson,(a) it was held, that a power of sale given to three trustees, was not well executed by the two surviving trustees; and in Bradford v. Belfield, (b) it was determined that a trust for sale vested in A. and his heirs, could not be executed by an assign of A.

The testator having abstained from giving to his trustee any power of selecting his successors, it was as much a breach of trust to devise the trust estate, as it would have been to have transferred it in his lifetime.

He referred to 2 Jarman on Wills, p. 714.

Mr. Turner and Mr. Little for the defendants.-This case does not come within the decision of Cooke v. Crawford. Here the devise and bequest is to the trustees, their heirs, executors, administrators, and assigns and the trusts are to be performed by the assigns. In Cooke v. Crawford the Vice-Chancellor of England observed on the omission of the word assigns. He says, "It is observable that the testator has not used the word 'assigns,' either in the clause in which he has created the trust for sale, or in either of the two clauses that follow it, in which he points out the machinery by which the sale is to be effected. He does not introduce that word until he begins to speak of something that is to be done after the sale has taken place, [*430] that is, until he *declares the trusts upon which the proceeds of the sale are to be held."

(a) 1 Barn. & Ald. 608, and 3 Mad. 261.

(b) 2 Simons, 264.

1844.-Titley v. Wolstenholme.

A trustee who has undertaken a trust cannot, without authority, relieve himself from his duty, and refer its performance to another person, for delegatus non potest delegare.[1] The rule, however, ceases upon the death of the trustee, when there is an end to all personal confidence, for a testator cannot be supposed to entertain any personal confidence in the heir, executor, or administrator of a trustee; they must be unknown to the testator, as it depends on the chance of events who may fill those charac

ters.

If it be a breach of trust to devise a trust estate, it would be equally one for a trustee to make a general devise without excepting thereout the trust estates. The testator, by the use of the words "executors" and assigns, must have intended his trustee to have some power of nomination; and it would be no more improper to make a devisee than to appoint an executor. The interests of the cestuis que trust might require such a devise; for the heir might be an infant or lunatic, or under disability, or an alien. To prevent the estate falling into improper hands or escheating to the Queen, who would not be bound by the trusts, it surely would not be wrong to devise the trust estate to trustworthy persons, by whom the trusts might be carried into execution.

A "devisee" may come within the term "heir," as he is considered the hæres factus, besides which a devisee is an "assignee" in law; Whitfield v. How.(a)

Lord Eldon did not concur in the decision in Townsend v. Wilson as appears in Hall v. Dewes, (b) and Bradford v. Belfield(c) does not apply.

*Lastly. Conveyancers have always considered, that [*431] in these cases a trustee might properly devise a trust es

tate. The result of holding the contrary will be not only to destroy many titles, but to make the estates of the trustees, who have heretofore devised trust estates, liable at this moment for a

(a) 2 Shower, 59.

(b) Jacob, 189.

(c) 2 Simons, 264.

[1] Hawley v. James, 5 Paige, 323; The Trustees of The Auburn Academy v. Strong, Hopk. 278.