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CHAPTER XI.

OF ABSTRACTS OF TITLE UNDER TRUSTEES, EXECUTORS, ADMINISTRATORS, AND GUARDIANS.

We now come to consider abstracts of title under trustees and other persons in a like fiduciary situation; and this chapter will be divided into-I. Titles under trustees.-II. Titles under executors and administrators-and III. Titles under guardians.

I. TITLES UNDER TRUSTEES.

1. Under trustees for sale.-Where trustees are appointed, and do not either disclaim or get discharged from the trusts, they should all join in completing the legal title, and in giving discharges for the purchasemoney, if the purchase-money is to be received by them. (a)

If a trustee once accept the trust, he cannot afterwards decline it by his own act, or under his own authority, unless there be a power or provision for en

(a) See Bradford v. Belfield, 2 Sim. 264.

abling him to do so. (a) And where personalty is bequeathed to the executors as trustees, proving the will is an acceptance of the trusts. (b) But another trustee may be substituted in his place under a power to change trustees; or if there be no such power, application may be made to a court of equity to appoint a new trustee ; although a court of equity cannot transfer to the new trustee mere authorities, as authorities to sell, which were given to the old trustee; an act of parliament will be necessary to communicate such powers to the new trustee. (c)

If no acting trustees remain, the will will be inoperative at law. Equity, however, will supply the trust, for equity never wants a trustee when the lands are charged with a trust which fastens on the land, except that the king, or the lord by escheat, is not bound by a trust. (d)

If trustees decline to act in a trust committed to them, they should disclaim; and if they have never acted at all, their disclaimer will vest the estate in the other trustees. (e)

This has, indeed, been denied by a considerable authority, (f) as far as it is applicable to deeds, although it is admitted to be correct as far as disclaimers by trustees under will are concerned; and Littleton (g) is cited in support of the doctrine contended for. It has indeed been repeatedly decided that a devise to three or more persons upon trust, is a devise to such of the

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three as accept the trust; (a) and it may certainly be forcibly contended that the same principle applies to a grant by deed. (b)

If all the trustees disclaim, the estate will vest in the grantor, or the heir of the grantor, or devisor. But if a trustee, instead of disclaiming, conveys his interest to the remaining trustee, a purchaser will not be compelled to take a title from the other trustee, unless the trustee who had conveyed his interest will join in the receipt for the purchase money; (c) but if a release is executed with intent to disclaim, it seems that it will operate as a disclaimer, and the releasing trustee need not join in a receipt for the purchasemoney. (d)

A trustee may make such disclaimer by deed without matter of record; (e) except perhaps where the estate is vested, when it must still be made by record ; (ƒ) but it will not be considered vested until it is accepted. (g)

According to the opinion of Mr. Justice Holroyd, a disclaimer may be made by parol; (h) but where a devisee had repeatedly disclaimed an estate as devisee by parol, supposing herself to be entitled as heiress at law, it was held that she was not thereby prevented

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from asserting her right as devisee after she had discovered she was not heiress; (a) so that this opinion of the learned judge is very questionable.

Where a trustee becomes bankrupt, his trust estate, whether real or personal property, will not pass to his assignees by the bargain and sale and assignment under the commission. (b) But by the late bankrupt act (c) it is enacted, that if any bankrupt shall, as trustee, be seised or possessed of any real or personal estate, or shall have standing in his name, as trustee, any public or private stock, the Lord Chancellor, on the petition of the cestui que trust, may order the assignees to convey, assign, or transfer the said estate, interest, or stock, to such person or persons as he shall think fit, upon the same trusts as the estate, interest, or stock were subject to before the bankruptcy.

A trustee under a power for sale in a mortgage, must give notice to the mortgagor on a sale, and if he fail so to do, he will be restrained by injunction from a sale of the lands, it being his duty to attend equally to the interest of both cestuis que trust; but it would seem that if the trust or power of sale is vested in the mortgagee, he may sell without any notice to the mortgagor. (d)

A purchaser from a trustee with notice of the trust, or without a valuable consideration, will take subject to the trust. (e)

A direction to trustees to sell, "at such time and in such manner as they shall think fit," will not authorise them

(a) Doe d. Smith v. Smith, 6 B. & C. 112.

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(b) Ex parte Martin, 19 Ves. 491; 2 Rose, 331. S. C. Ex parte Madd. 28. Joy v. Campbell, 1 Sch. & Lef. 328. Eden's B. L. 244.

(c) 6 Geo. IV. c. 16. s. 79; and see post, p. 180.

(d) Anon. 6 Madd. 10. See post, p. 168, n. (d)

(e) Bovey v. Smith, 1 Vern. 60; Mitf. 223.

arbitrarily to postpone the sale to an indefinite period, and the trustees will be decreed to execute their trust in the same manner as if they had been directed to sell "with all convenient speed." (a) And where a matter is left to the discretion of trustees, they will not be permitted to exercise it capriciously or negligently, for they will still be under the controul of the court. (b)

Where a power of sale was to be exercised with the consent of three trustees, their heirs and assigns, and the trustees or the survivor, his executors and administrators were to give receipts, and a new trustee was appointed in the place of one who retired, and another trustee died, it was held to be doubtful whether the power could be exercised with the consent of the continuing and new trustees. (c) So where there was a power of sale to three trustees and their heirs, and one died, it was decided that the other two could not execute the power, although the settlement expressly provided that the purchase-money should be paid to the trustees or the survivors, &c., and although it contained a power, in case of death &c. to change trustees, and a covenant for quiet enjoyment by the trustees for the time being. (d)

Where a trust for sale was vested in A. and his heirs, it cannot be executed by an assignee of A. This was decided in the case of Townsend v. Wilson; (e) and although this case was disapproved of by Lord Eldon, (c) yet he owned that he was bound by it; and it has since been

(a) Walker v. Shore, 19 Ves. 387. (b) Milsington v. Portmore, 3 Madd. 491; 5 Madd. 472. S. C. French v. Davidson, 3 Madd. 402. Langston v. Olivant, Coop. 33. Walker v. Shore, 19 Ves. 392.

(c) fall v. Dewes, Jac. 189.

(d) Townsend v. Wilson, 1 B. & A. 608; 3 Madd. 261. S. C.; and see Sharp v. Sharp, 2 B. & A. 405. Smitb v. Leigh, 6 Moo. 214; and post, 210. (e) 1 B. & A. 608.

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