chase-money, and to convey the said real estates unto the defendant in fee-simple, and that the defendant agreed upon such good title being made, and upon such conveyances being executed, to pay the purchasemoney. The declaration then stated mutual promises, and averred that the plaintiff's delivered to the defendant a faithful abstract, and made a good title both at law and equity from the testator, enabling them to convey the estate in fee-simple upon payment of the purchase-money, and that they offered to defendant to convey the same to him upon payment of the purchasemoney. The declaration then alleged, as a breach of the agreement, that defendant, although requested, had not paid the purchase-money. To this declaration there was a general demurrer and joinder. The case was now argued by Sugden, in support of the demurrer. The first question is, whether the power to appoint new trustees extends to R. Sharp and G. Adams Davis, the trustees of the real estate; and, secondly, assuming that to be so, whether the power, which in terms is to the surviving trustee, is well executed by the two trustees. Here the testator has appointed three classes of trustees; first, R. Sharp and R. L. Rice, as trustees for a particular fund; secondly, Mary Sharp, R. Sharp, and G. A. Davis, as trustees of his personal property; and, thirdly, R. Sharp and G. A. Davis, as trustees of his real property. Now the words of the power are, that in case either of his said trustees, the said R. Sharp and R. L. Rice, so far as apply to the trusts reposed in them respectively, or the said Mary Sharp, R. Sharp, and G. A. Davis, so far as apply to the trusts reposed in them respectively as Ee 3 afore 1819. SHARP against SHARP. 1819. SHARP against SHARP. aforesaid, should happen to die, &c., in such case, &c. Now the word "respectively" does not apply to each of the trustees individually, but to the class, and as the testator has expressly appointed three classes of trustees, and as in the power he has named only two out of three, he cannot have intended to have extended this power of appointment to the third class of trustees, viz. the trustees of the real property; assuming, however, that to be otherwise, the power of appointment is confined to the survivor of the trustees continuing to act : here it is executed by two who never, at any time, acted in execution of the trusts. And the power is to the survivor or to the exccutor or administrator of the survivor, which shews that the power is confined to the trustees of the personal and not of the real property. The trust for sale, on the other hand, is to the two trustees, and the heirs of the survivor, and the receipt of the heir of the surviving trustee is to be a good discharge to the purchaser; and it is clear, therefore, that the testator contemplated the event of one trustee only acting in execution of the trusts, and that he did not intend that there should always be two. M'Adam v. Logan (a) is an authority in point; there the power was to the survivor of husband and wife: it was executed by the husband and wife jointly; and Lord Thurlow held that to be an invalid execution of the power. Here also both decline to act; neither, therefore, can be said to have filled the character of a trustec, acting in execution of the trusts, to whom alone the power of appointing other trustees is expressly confined by the very terms of the proviso. Townsend v. Wilson (b) is the (a) 5 Brown, Ch. Cas. 310. (b) 1 Barn. & Ald. 608, converse converse of this case, and is an authority to shew with what strictness the Court construe these powers. Now Preston contrà. The Court will so construe this power as best to effectuate the intention of the testator. it is clear that the testator intended that his real property should vest in the new trustees; for it is expressly provided that all the trust estates, &c. are to vest in the new trustees. And, the term estate only applies to his real property; and if the construction contended for prevail, the real property can never vest in the new trustees. The words of the power are, That if either of my said trustees, R. Sharp or R. L. Rice, so far as applied to the trusts reposed in them respectively : the word respectively must be construed distributively, and then it will be, If either of them, R. Sharp or R. L. Rice, refuse to act, &c., another may be appointed; and as another may be appointed if either refuse to act, two may be appointed if both refuse to act. And inasmuch as the said R. Sharp and G. A. Davis are both named in the power, and as they are the trustees of the real estate which the testator intended to pass to the newly-appointed trustees, they, in order to effectuate the intention, must be considered as included within that power. By assuming that to be so, the power of appointment extends to all the trustees who are willing to execute any of the purposes of the will. The execution of the power of appointment is a purpose of the will; and Crew v. Dickins (a) is an authority to shew that the very act of conveying an estate to another is an acceptance of the trust; and here the intention of the testator will be satisfied, if the 1819. SHARP against SHARP. 1819. SHARP against SHARP. parties act in execution of the power. The power here given is to the trustees acting in that character; and every trustee comes within the meaning of the term, surviving trustee. The trustees became trustees upon the death of the testator; and they must have continued to fill that character until they were discharged by the means pointed out in the will, or by the intervention of a court of equity. The words "surviving trustees" were used in the sense of acting, or remaining, or continuing trustees, and Roe, dem. Vere, v. Hill (a), and Goodtitle v. Laymen (b), are authorities to shew that the word surviving admits of this application. ABBOTT C. J. The Court cannot introduce any power into this will which the testator himself has not expressly given; although they may be of opinion that if he had contemplated the event which has happened, he would have introduced a special power to provide against it. It appears that three classes of trustees are appointed for three different purposes: first, R. Sharp and R. L. Rice, as to the £1000; then as to the rest of the personal estate, Mary Sharpe, R. Sharp, and G. A. Davis; and then, as to the real estate, R. Sharp and G. A. Davis. The will then contains a power that in case either of his said trustees, R. Sharp and R. L. Rice, so far as applied to the trusts reposed in them respectively, or the said Mary Sharp, R. Sharp, and G. A. Davis, so far as applied to the trusts reposed in them respectively, as aforesaid, should happen to die, or desire to be discharged from, or neglect or refuse, or become incapable to act in the trusts thereby in them (a) 3 Burr. 1881. (b) Fearne, Cont. Rem. 358. reposed, reposed, before such trusts should be fully performed or I am BAYLEY J. I am of the same opinion, upon both points. There are three sets of trustees: the first are R. Sharp 15 1819. SHARF against SHARE |