1805. TRENT versus HANNING and Others. a fee.* And the appointment of them, as trustees in this will, imposes a duty upon them, to raise certain money, for which purpose the law will raise an ade- and Others quate estate. Taylor v. Webb. There the testator made G. B. sole heir and executor, and the court held, that by making G. B. heir, the testator meant he should have his lands; and having made him executor, if he should not have his lands, the word heir would be nugatory. Marret v. Sly, S. P.‡ This establishes, that where the devisee is to fill a particular character, as hæres factus, which implies a devise of the inheritance of the lands, there shall be such devise by implication; and trustee of inheritance, is equivalent to the making one his heir. And where the trust of the will cannot be performed without the devisee in trust taking an estate in fee, the law will imply it; Shaw v. Weigh,¶ Oates d. Markham v. Cooke.§ Besides which, there are other classes of cases of estates 'by implication as a devise to B. after the death of A. in which case B. takes an estate for life. Willis v. Lucas, Roe d. Beadale v.Summerset,** which all proceed upon collecting the intent of the testator, without express words: for in none of these cases was there any formal set of words. But even if the trustees do not take an estate, they have a power given to raise the legacies from the lands; for the purposes for which they are appointed require it; and as they are devisees of inheritance they take the land, for a devise of the inheritance passes the land; Wildlake v. Harding;+t— and even as they are to raise the annuity for the wife and the money for the younger children, that alone gives them a power over the land, as a fund to supply those purposes." * 4 Vesey, 491, T2 Strange, 798. ** 5 Burr. 2608. + Style, 301, 307, 319. + Sid. 75. ++ Hob. 21. S, C. Moore, 873. 1805. TRENT and Others versus HANNING and Others. LORD ELLENBOROUGH, C. J. "You must shew first that they have that fund given to them." PEAKE. "By appointing them trustees of inheri tance, the testator must be supposed to have given them power over the land, without which the will is nugatory, and under a general power to charge, a man may direct a sale, Long v. Long.* Though it is a ge neral rule that all must join in the execution of a power, yet if the power is connected with a certain character as executor, there the survivor may execute it; Lock v. Logger; or if it be given to a man and his assigns; How v. Whitfield ; and as these persons are nominated trustees of inheritance, the power must descend to the heir of the survivor. But where it has been held that all must join, the parties were so expressly required by the words of the will; and where no person is expressly named, the law will give the power to him who is to have the money, as to an executor for payment of debts; Dyer, $71, b. There one appointed lands for payment of debts, without naming the trustee,and there being two executors, one of them after the decease of the other, charged the lands, and it was held good; and at least equity will supply a trustee." MOORE, A. contrà. "The intention of the testator cannot be collected from this will. He appoints the trustees as trustees of inheritance for the purpose hereof; which is not so strong as if he had appointed them trustees of inheritance. He might have considered the office of a trustee of inheritance with some confused notion from the civil law, according to * 5 Vez. jun. 445. † 1 Anderson, 145. ↑ 1 l'ent. 338, 339. He cited also Garford v. Garford, 1 Ch. Ca. 35. Guilliam and Another v. Rowel and Another, Hard, 204; and Pitts v. Pelham, 1 Lev. 304. which they may have no relation to lands. The case of Oates v. Cooke is very distinguishable, for there the deyisee was to build a tomb for the testator, and he and his heir always to see it kept in order; and there was also a condition that the devisee should pay debts. In Taylor v. Webb, G. B. was made heir and executor, and if he had not taken the lands, the appointment of heir would have been nugatory. The devisee was also to pay an annuity, and the testator directed him where to find the title-deeds. Marrit v. Sly was only deemed obscure on account of the false English. It is a very forced construction to infer that the testator meant to give the inheritance, merely because he refers to the jointure which is charged upon a term; for the debts are 1 charged on the same fund as the jointure, and there is no mention of lands in the whole will. In Gardner v. Sheldon, it is explained, that an estate by implication cannot be taken where the inference is only possible, but where it is absolutely necessary and unavoidable. Here trustees are appointed for a particular duty, and it does not appear, that they could not discharge it without having an estate in fee. There is no intention of giving them a power to sell the lands, or to mortgage them or raise money upon them. Where there are trusts, and no person is appointed to execute them, a court of equity will do it.” Lord ELLENBOROUGH, C. J. "If the trustees take the inheritance, can they not carve out a term such as will support the jointure? Now a power as trustees of inheritance would enable them to do so." MOORE then cited Yates v. Compton,† and Co. Litt. 113, a, and note 2, upon the same passage by Hargrave, and contended, that here being three persons designated nominatim nakedly to execute a power, the * Vaughan, 262. NO. XXVII. N. S. + 2 Peere Williams, 309, 1805. TRENT and Others HANNING and Others. versus 1805. TRENT versus HANNING common law rule applies, and there can be no sur vivorship. And upon the note by Lord Hale, cited and Others by Hargrave, and the confirmation which the latter thinks it receives from the cases in Kelw. 44, and 2 and Others. Brownl. 194, which Mr. Hargrave cites as authorities that a power of selling given to executors shall pass to their executors and administrators: he said he had examined the reports, and they were only dicta, and not decisions. The latter is a dictum of Winch, in the case of Rowles v. Mason, when Coke himself was chief justice, and assisted in the decisions which took place in Trinity, 10 Jac. I. A. D. 1612, and yet in his Commentary, which was not published till 1628, he lays down a contrary doctrine, which ought therefore to prevail." PEAKE, in reply. "It is admitted that the words have the sense which the plaintiff gives them, or they have no meaning at all, and the executing of the will in the presence of three witnesses, though necessary to raising the question at all, shews in some degree an intention of passing lands. In common language, a trustee ex vi termine is supposed to have some trust to perform, and the words of inheritance vest in him the inheritance in the land. Markham v. Cooke was rather a stronger case, for there was something to rebut the presumption, unless it was necessary to give a fee for the purposes of the trust. In Taylor v. Webb, though the direction concerning the title-deeds was mentioned in the argument, yet it was not relied upon in the judgment. The devise of 2001. a year, in addition to the jointure, must mean out of an estate of the same kind; and the argument is only strengthened by applying the devise to the term for 200 years. The cases of devises by implication are only cited to shew that there may be Ut Supra. 1805. TRENT an estate by implication, although there is no express devise of an estate to the person in whose favour it is implied. Yates v. Crompton was only a decree that the and Others heir at law should be made a party ex majori cautela." Cur. adv. vult, We have heard this case argued; we have considered it; and it appears to us, attending to the whole of the will, that the testator, J. Trent, in appointing J. Hanning, Wm. Hanning, and Constantine Phipps, as trustees of inheritance, for the execution of his will, plainly meant to make them trustees of his estate of inheritance in the same manner as if he had used the words "trustees of my inheritance, or trustees to inherit my said estates for the execution of this my will." We are, therefore of opinion, that the said John Hanning, Wm. Hanning, and Constantine Phipps, took an estate in fee in remainder in the said real estates of the said John Trent, subject to the term of 200 years created by the settlement 1st December, 1805. The rule of law being, that the intent of a testator to disinherit his heir at law, must be clear, and appear plainly in his will, otherwise his heir shall not be disinherited; the question submitted to the consideration of the court will depend upon this, viz. Whether such intent doth so appear? and I do not think that it does. For the testator has not made any mention of his lands, nor has he in any manner referred to them; the addition to his wife's jointure is not charged upon them, and that part of his will may be well satisfied if his personal estate be the fund for paying it. The giving his wife 2001, a year in addition to her join versus HANNING and Others. |