of a married woman; and after her decease, that the trustees should stand seised to the use of the heirs of her body. It was decreed, that this was a use executed in the trustees during the life of the married woman; but that after her decease, the legal estate vested in the heirs of her body. This decree was 3 Bro. Parl. affirmed by the House of Lords, after consulting the Judges.

Ca. 113.

19. In the preceding case, the direction to the trustees to pay annuities, and the trust to pay the surplus, would have justified the decree. But in a Harton v. Harton, modern case sent out of Chancery, an estate was 7 Term R. devised to trustees and their heirs, upon trust to 652. permit the testator's niece, who was married, to receive the rents during her life, for her separate use. Lord Kenyon said, that whether this were a use executed in the trustees or not, must depend upon the intention of the devisor. This provision was made to secure to a feme covert a separate allowance, to effectuate which it was essentially necessary that the trustees should take the estate, with the use executed, for otherwise the husband would be entitled to receive the profits, and so defeat the object of the devisor. The court certified that the legal estate, by way of use executed in fee simple, vested in the trustees; that construction being necessary to give legal effect to the testator's intention; to secure the beneficial interest to the separate use of the feme covert.

སྐ

Money.

20. Where lands are devised to trustees, in trust Trust to sell to sell or mortgage, in order to raise money for or to raise payment of debts, and subject thereto in trust for a third person; the trustees will take the legal estate. For otherwise it would not be in their power to execute the trust.

Bagshaw v.
Spencer,
1 Ves. 142.

V. I. 378.

21. A person devised all his lands to five trustees their heirs and assigns, in trust that they and their Collect Jur. heirs should in the first place, by the rents and profits, or by sale or mortgage of the premises, raise so much money as should be necessary for the payment of his debts; after payment thereof, he gave the same to his trustees for 500 years, without impeachment of waste, upon several trusts. And then proceeded in these words: "And from and after the determination of the said estate for years, then I give and devise all my said lands, &c. unto my said trustees, their heirs and assigns; my mind being, that my said trustees shall be and stand seised of the said premises in trust for the several uses, &c. after declared; viz. as for one moiety of the same premises I give and devise the same to the use and behoof of my nephew T. Bagshaw, for the term of his natural life, &c." One of the questions in this case was, whether the estate devised to the nephew was a legal or a trust estate.

Wright v.
Pearson,
Fearne, Cont.

Rem. 187.

Keen v.

Lord Hardwicke held that the devise to the nephew was merely a trust in equity; the first devise being to the trustees and their heirs, it carried the whole fee in point of law. Part of their trust was to sell the whole or a sufficient part for payment of debts. This would have carried a fee by construction without the word heirs. The consequence of this was, that here being the whole fee, in law, devised to the trustees, no remainder of a legal estate could be limited upon it; and T. Bagshaw took only a trust.

22. This mode of construction is adopted in cases of deeds, as well as in cases of devises.

23. Lord Byron being tenant for life, with 8 East. 248. remainder to his son in tail, they suffered recoveries,

Deardon,

and conveyed estates in Lancashire and Nottinghamshire to the use of trustees and their heirs, in trust to sell the Nottinghamshire estate for payment of debts. As to the Lancashire estate, in trust to sell it, and to apply the money in the purchase of other lands, to be settled on Lord Byron for life, remainder to his son in fee. With a proviso that the rents should, till sale, be received by the persons who would have been entitled to them, if no recovery had been suffered.

It was held, that the use of the Lancashire estate was executed in the trustees; that as to the proviso that the rents, till sale, should be received as before, that was nothing more 'than the common provision in such cases, and did not carry the legal estate.

24. In the case of a devise to trustees for particular purposes, the courts will consider the legal estate as vested in the trustees, as long as the execution of the trust requires it, and no longer : and will therefore, as soon as the trusts are satisfied, consider the legal estate as vested in the persons who are beneficially entitled to it.

But upon

25. Thus, in the case of Say and Sele v. Jones, the ante, § 18. legal estate was held to be vested in the trustees during the life of the married woman. her decease, it was considered as vested in the heirs of her body.

26. So, where a person devised to trustees all his real estates, arrears of rent, and a bond and judge

Doe v.
5
Simpson,

East. 162. ment; in trust, out of the rents and profits and arrears due, to pay an annuity of 50 l. to his sister H. for her life, and another annuity of 50l. to his sister D. for life; after payment thereof, then in trust, out of the residue of the rents, to pay to his brother and nephew 800 7. in trust for the benefit of the children of another brother. After payment of the annuities,

Kenrick v.
Beauclerc,

175.

and the sum of 8007. he devised his estates to his brother W. for life, &c. The testator further gave the trustees a power to grant building and other leases.

It was resolved, that the trustees took the legal estate for the lives of the annuitants; with such a term for years in remainder as was necessary to raise the 8001.; and that, subject thereto, the limitation for life to W. took effect as a legal limitation.

27. Where lands are devised to trustees, charged with the payment of debts, upon trust for a third person, the trustees will not take the legal estate.

28. A person devised his real estates, and also his 3 Bos.& Pull. personal estate, to trustees and their heirs; to the intent that they should, in the first place, apply his personal estate in payment of his debts; and as to his real estates, subject to his debts, he devised the same to R. P. for and during his life, &c.

Or for any other Purpose to which a Seisin is necessary.

Fearne's Op. 422.

The Court of Common Pleas held that this was a mere devise charged with the payment of debts; for it did not appear that the testator intended the trustees should be active in paying the debts. It would be more convenient that the legal estate should be vested in the trustees; but this was only an argument ab inconvenienti, from which they could not construe the testator to have said, what in fact he had not said.

29. It is now settled, that where an estate is devised to one, for the benefit of another, the courts will execute the use in the first or second devisee, as appears best to suit with the intention of the testator: from which it follows, that whenever an estate is devised to trustees, and they are required to do any act, to which the seisin and possession of the legal estate is necessary, although they be directed to permit the rents and profits to be received by another

person, still that person will only be entitled to a trust

estate; for otherwise the trustees would not have the means of executing the trust.

30. J. B. devised all his real and personal estate to Chapman v. three trustees, their heirs and assigns, in trust to pay Forrest R. Blisset, his son Isaac 37 1. quarterly; and if he married with 145. consent, then double the sum: if he should have any children, he gave the residue of the rents of his said trust estate, to be applied, during the life of his son, for the education of such child or children: he then gave one moiety of the trust estate to such child or children of his son as he should leave, and the other moiety to the child or children of his grandson J. D.

Lord Talbot said, the whole depended on the testator's intent, as to the continuance of the estate devised to the trustees; whether he intended the whole legal estate to continue in them, or whether only for a particular time or purpose. If an estate were limited to A. and his heirs, in trust for B. and his heirs, there it is executed in B. and his heirs. But where particular things are to be done by the trustees; as in this case, the several payments that were to be made to the several persons; it was necessary that the estate should remain in them; so long at least as those particular purposes required it.

1 Bro. R. 75.

421.

31. Lands were devised to trustees, upon trust that Shapland they should, every year, after deducting rates, taxes, v. Smith, repairs, and expences, pay such clear sum as should Fearne's Op. remain to A. B. Lord Thurlow held that the trustees, being to pay the taxes and repairs, must have an interest in the premises; therefore that the legal estate Vide 2 Cox's was vested in them.

Rep. 145.

32. A person devised lands to trustees and their Silvester v. heirs, upon trust to take and receive the rents and Wilson, profits thereof, and to apply the same for the 444.

2 Term R.