1819. SHARP against SHARP. R. Sharp and R. L. Rice; the second are R. Sharp, Mary Sharp, and G. A. Davis; and the third, R. Sharp and G. A. Davis. The question is, whether this power applies to the case in which Sharp and Davis were the sole trustees of the real estate, or whether it is confined to the first two classes of trustees only. In order to sustain the present action, we ought to see clearly that it was the intention of the testator to include in the power all these three classes of trustees. Now, looking at the words, so far from that intention being clear, I think the inference is the other way. It has been argued, that in the power, as all the trustees are named, it must have been the intention of the testator to extend it to all the trustees individually. But R. Sharp is twice named in the power, with reference to two of the trusts; and it would have been perfectly useless to have named him more than once, if the intention had been to extend the power to the trustees individually. It has been said that this falls within the words used by the testator; for those words are, That if Mary Sharp, R. Sharp, and G. A. Davis, refuse to act, &c., then new trustees might be appointed; and that R. Sharp and G. A. Davis have refused to act. But what is the trust to which the words used by the testator apply? Why, to the trust reposed in them respectively, viz. in the three respectively, which shows that it is confined to the trust relative to the personal, and not to the real estate. It seems to me, therefore, that no power is given to R. Sharp and G. A. Davis, as trustees of the real estate; for every word of the power is inconsistent with such a construction. The words are, "Provided that in case either of my said trustees." And the word either is not uselessly introduced: it is in effect a proviso, that if either of the trustees named in the will should refuse to act, still that the testator should have the benefit of the judgment of the other, who would act in concurrence with such other individual as he might nominate. Now the testator may have had good reason in confining the power to the case of one trustee, for he may have had special confidence in the trustees named by himself; and so long as either of those persons acted in the trust, he might think his property safe. But if we were to read these words as if they were both or either, the case would be different. If both the persons should decline to act, a testator might naturally object to their delegating their trust to other persons, and might then have thought it better that his property should be left to the care of a court of equity. The power, then, goes on further to state," That if the trustees shall refuse to act before the trusts shall be fully performed, it should be lawful for the survivor of the trustees so acting in the trust to appoint, &c." Now, I apprehend that under the words of this power, the testator meant by the word acting, to designate those who had taken upon themselves to perform some of the trusts mentioned in the will; and that he did not contemplate one who in limine refused to act. And it seems to me that a person who does so refuse cannot be considered as acting in any of the trusts. Then the word survivor must mean the continuing trustee, as contradistinguished both from those who might refuse to act, and those who might be desirous to discontinue acting. For these reasons, it seems to me that the power is confined to the persons specifically pointed out in the will, viz. the trustees of the personal property; and that even if it could be extended to the trustees of the real property, it would not apply to a case where both those trustees had refused to act in the first instance. 1819. SHARP against SHARP. HOLROYD 1819. SHARP against SHARP. HOLROYD J. I am also of opinion, that upon both these points the Defendant is entitled to the judgment of the Court. With respect to the first, it seems to me quite clear that the power of appointing new trustees does not extend to the trustees of the real estate; and that such power, in either of the classes of trusts named, is given only to the continuing trustee. I construe the proviso in this way:-in case either of the trustees, R. Sharp or R. L. Rice (who are trustees for a particular purpose) shall die, or refuse to act, the continuing trustee in that particular trust may appoint another in his place; and in like manner, as to the other trust, if R. Sharp, Mary Sharp, and G. A. Davis, or any one of them, shall decline to act as a trustee, the same power is given to the survivor or survivors, viz. that the trustee who continues to act is to appoint another in lieu of the person who shall so refuse. That it does not. extend to the real estate is clear; for where a power is. given for the appointment in the case of the death of a trustee, it is given, not to the heir in whom the real estate would be vested, but to the executor or administrator of the last surviving trustee. I also think, that no power of appointment was intended to be given, except to a trustee who had consented to act; and that on a refusal by one to act, the vacancy is to be filled up by the other who continues to act; or, in the case of the trust given to the three, if two refuse to act, the whole power is given to the acting trustee. Here, both the trustees have refused to act; and I am therefore of opinion, that on this ground, also, they have no right to substitute other persons in their place. BEST J. I am clearly of the same opinion, on both points. The testator has, by his will, appointed three sets sets of trustees; and if he had intended, that in the event of all of those trustees refusing to act they should be at liberty to appoint new trustees, he might in general terms have said,. If any of my trustees refuse to act, the remainder may appoint others. But by the terms which he has used, I think it perfectly clear that he intended the power of appointment to extend only to the two classes of trustees therein mentioned. Upon the other point, I entirely agree with the rest of the Court, that the authority to appoint other trustees does not extend to a case where all have refused to act; and therefore I think that our judgment ought to be for the defendant. 1819. SHARP against SHARP. Judgment for the defendant. BLANCKENHAGEN and Another against BLUN- Wednesday, DELL. (a) DECLARATION alleged that the defendant, on the 24th May, 1817, made a promissory note, and delivered the note to the plaintiffs; by which note defendant promised to pay to J. P. Damer, then of Rio de Janeiro, or to the plaintiffs, or to his or their order, 2501. sterling, in Portuguese currency, at the rate of 57d. sterling per mil-ré, together with interest from the 27th July, one-half at fourteen, and one-half at 26 months, from the date, value received; whereby, and by force of the statute, the defendant became liable to pay, &c., and being liable, promised, &c. The declaration then stated, that the money mentioned in the note became due, according to the tenor and effect thereof; yet that the defendant, although often requested, had not paid (a) This case was argued at Serjeants' Inn. April 28th. A note, wherepromised to pay by the maker to A., or to B. and C., a sum therein speci fied, value received, is not a promissory note within the meaning of the statute of Anne. An action cannot be maintained at com mon law upon such an instru ment, even by the payee against the maker, although it is stated on the face of the note to be given for value received. the 1819. BLANCKEN HAGEN against BLUNDELL. the same to the plaintiffs, nor had he paid the same to Damer. The second count was upon the same promissory note; but only alleged a general liability to pay, without treating it as a promissory note within the statute of Anne. The third count was similar to the first, with the exception that it contained an averment that Damer died before the note became payable. To this declaration there was a general demurrer, which was now argued by Espinasse, in support of the demurrer. No action is maintainable on any such instrument as this, unless it be a promissory note within the statute of 3 & 4 Anne, c. 9., Trier v. Bridgman. (a) The second count of the declaration cannot therefore, at all events, be supported. But, secondly, this is not a promissory note within the meaning of that statute; for it is not payable to either of the payees, at all events, but only on the contingency of its not having been paid to the other; and a bill of exchange in this form would not be negociable by the custom of merchants. Carlos v. Fancourt (b), and Hill v. Halford (c), are authorities in point. Campbell contrà. An action may be maintained, as between these parties, upon this instrument, although it be not negociable; for on the face of it it is stated to have been made for value received. The note itself contains a promise, and a consideration for that promise. An action, therefore, might have been maintained upon this instrument at common law. But, secondly, this is a valid note within the statute of Anne, as between the original parties, although, perhaps, it may not be nego (a) 2 East, 559. (b) 5 Term Rep. 482. ciable. |