[*569] tenant for life * and trustees may respectively execute, make, and do, all necessary and proper deeds, instruments, and things.

29. Additional powers. By sect. 57, sub-sect. (1), nothing in the Act is to preclude a settlor from conferring on the tenant for life, or the trustees of the settlement, any powers additional to or larger than those conferred by the Act; but by sub-sect. (2), any such additional or larger powers are to operate and be exercisable in the like manner and with all the like incidents, effects, and consequences, as if they were conferred by the Act, unless a contrary intention is expressed in the settlement.

30. Tenant for life an infant. By sect. 60, where a tenant for life, or a person having the powers of a tenant for life under the Act, is an infant, or an infant would, if he were of full age, be a tenant for life, or have the powers of a tenant for life, the powers under the Act may be exercised on his behalf by the trustees of the settlement, and if there are none, then by such person and in such manner as the Court, on the application of a testamentary or other guardian or next friend of the infant, either generally or in a particular instance, orders. Under this section the Court in Ireland refused, where an infant was entitled to an undivided share of land, to appoint one of his co-owners to exercise on his behalf the powers of the Act, but required the appointment of an independent person (a). The Court in directing the mode of sale under this section can order it to be made out of Court (b).

31. Tenant for life a married woman. By sect. 61, sub-sect. (1), the foregoing provisions of the Act do not apply in the case of a married woman; but by sub-sect. (2), a married woman entitled for her separate use, or entitled under any statute for her separate property or as a feme sole, is, without her husband, to have the powers of the Act; and by subsect. (3), where she is entitled otherwise than as aforesaid, she and her husband together are to have the powers. By sub-sect. (4), the provisions of the Act referring to a tenant (b) Re Price, 27 Ch. D. 552.

(a) Re Greenville Estate, 11 L. R Ir. 138.

for life extend to a married woman entitled to property as her separate estate or as a feme sole, and this brings the case of an infant married woman so entitled within sect. 60, and her powers can during infancy be exercised by the trustees. of the settlement. But if the married woman is an infant married to a man of full age, and the property does not belong to her as her separate property or as a feme sole, a question arises whether the powers of the Act can be exercised during her infancy. For in that case, by sub-sect. (4) of sect. 61, the provisions of the Act referring to a tenant for life extend to the married woman and her [*570] husband together, and as she and her husband to

gether have the powers of a tenant for life, the case does not seem to fall within sect. 60, which applies only where the person having the powers is an infant. The case put appears to be a casus omissus from the Act.

32. Trust or direction for sale. Where the settlement contains a trust or direction for the sale of the property, the rights and powers of the trustees and tenant for life stand upon a different footing, and are governed by the independent enactment contained in the 63d section (a). The construction of this section is somewhat obscure, and the extent to which the powers of trustees were affected by it was a question of grave difficulty; but by the Settled Land Act, 1884, the powers given by the 63d section of the Act of 1882 to tenants for life or other persons having limited interests are not to be exercised without the leave of the Court, which leave is to be given by order naming the persons to exercise the powers, and until such an order is made and registered as a lis pendens, it seems clear that the trustees may execute all trusts and powers reposed in them by the settlement as if the Settled Land Acts had not been passed, while after an order has been made and registered and so long as it remains in force the powers of the trustees are suspended, so far as relates to any purpose for which leave is given by the order to exercise a power conferred by the Act of 1882. Under

(a) As to this section and the extent to which the powers given by the settlement to trustees are affected

by it and the Settled Land Act, 1884, see Chap. xxiii. s. 2, v.

[CH. XXII. these circumstances no conflict can now arise, under sect. 63, between the trustees and the tenant for life as to the exercise of their powers, and it seems unnecessary to consider what is the proper construction of the section in this respect.

33. Where the powers of the Act are exercisable and any necessity arises for trustees of the settlement for the purposes of the Act, they are by sect. 63 defined to be "the persons, if any, who are for the time being under the settlement trustees for sale of the settled land, or having power of consent to, or approval of, or control over the sale, or if under the settlement there are no such trustees, then the persons, if any, for the time being, who are by the settlement declared to be trustees thereof for purposes of the Act."

34. By sub-sect. (2) of sect. 63, the provisions of the Act referring to a tenant for life, and to a settlement, and to settled land, are to extend to cases under that section with certain exceptions, of which the following are the material ones for the present purpose.

[*571]

*(a). Capital money is not to be applied in the purchase of land unless expressly authorised by the settlement in the case of capital money arising thereunder from sales or other dispositions of the settled land, but may, in addition to any other mode of application authorised by the Act, be applied in any mode in which capital money arising under the settlement from any such sale or other disposition is applicable thereunder, subject to any consent required or direction given by the settlement with respect to the application of trust money of the settlement.

(b). Capital money and the securities in which the same is invested shall not for any purpose of disposition, transmission, or devolution, be considered as land unless the same would, if arising under the settlement from a sale or disposition of the settled land, have been so considered, and shall be held in trust for and shall go to the same persons successively in the same manner, and for and on the same estates, interests and trusts, as the same would have gone, and been held, if arising under the settlement from a sale or disposition of the settled land, and the income of such capi

tal money and securities shall be paid or applied accordingly.

(c). Land of whatever tenure acquired under the Act by purchase, or in exchange, or on partition, shall be conveyed to and vested in the trustees of the settlement, on the trusts, and subject to the powers and provisions which, under the settlement or by reason of the exercise of any power of appointment or charging therein contained, are subsisting with respect to the settled land, or would be so subsisting if the same had not been sold, or as near thereto as circumstances permit, but so as not to increase or multiply charges or powers of charging.

35. Commission for sale. Where settled property had been put up for sale by auction by the tenant for life under the Act, but withdrawn for want of a sufficient offer, and was afterwards sold by private contract on the same day, it was held that the trustees were at liberty to pay out of the purchase-moneys one commission for conducting the sale, including the conditions of sale, and also commission for deducing the title and perusing and completing the conveyance according to the scale of charges contained in Schedule 1, Part I. to the general order under the Solicitors' Remuneration Act, 1881; and also the costs occasioned by the concurrence in the sale of the tenant for life's mortgagees, and a proper sum to the auctioneer for his charges (a).]

(a) Re Beck, 24 Ch. D. 608.]

773

[*572]

* CHAPTER XXIII.

THE POWERS OF TRUSTEES.

THE powers of trustees are either General or Special; the former, such as by construction of law are incident to the office of trustee virtute officii; the latter, such as are conferred vi terminorum, i.e., by the settlor himself by an express proviso in the instrument creating the trust.

SECTION I.

OF THE GENERAL POWERS OF TRUSTEES.1

1. Powers of trustees at law distinguished from their powers in equity. - In a Court of law the trustee, as the absolute proprietor, may of course exercise all such powers as the legal ownership confers; but in equity the cestui que trust is the absolute owner, and the question we have to consider in this place is, how far the trustee may deal with the estate

1 General powers of trustees. - Powers must be executed, according to the settlor's intention as indicated by the declaration of trust; Kerr v. Verner, 66 Pa. St. 326; Guion v. Pickett, 42 Miss. 77. At law the trustee has largely the powers of an absolute owner; Slevin v. Brown, 32 Mo. 176; Harrison v. Rowan, 4 Wash. C. C. 202; but in equity the cestui que trust is regarded as the owner, and the trustee must perform certain duties for him, neither omitting from nor adding thereto, and if particular directions are given they must be exactly carried out, without any discretion; Wormley v. Wormley, 8 Wheat. 421; Beatty v. Clark, 20 Cal. 11. Trustees may receive instructions and directions from the court, if there is any doubt about the course they should pursue; Petition of Baptist Church, 51 N. H. 424; Woodruff v. Cook, 47 Barb. 304; Loring v. Steineman, 1 Met. 207; Crosby v. Mason, 32 Conn. 482; Tillinghast v. Coggeshall, 7 R. I. 383.

A trustee may make repairs, but he must indulge in no unnecessary expense; Sohier v. Eldredge, 103 Mass. 345; Herbert v. Herbert, 57 How. Pr. 333; Williams v. Smith, 10 R. I. 280; trust estate may become subject to a mechanic's lien; Cheatham v. Rowland, 92 N. C. 340.

Power to mortgage. — Mortgage should not be executed in individual capacity; Gilbert v. Gilbert, 39 Ia. 657; trustee may not mortgage to secure his own debt; Merriman v. Russell, 39 Tex. 278; may mortgage unless forbidden by the trust instrument; Dibrell v. Carlisle, 51 Miss. 785; Miller v. Redwine,