upon her death, it descended from her to E. Longman, and coming to her by descent from her mother, it must descend to her maternal heir. Now the testator, by his will, devises his estates "to his trustees, their heirs, executors, administrators and assigns." Those terms are sufficiently large to carry the whole inheritance; and before we say that it does not pass, we ought to see clearly, from the other terms of the will, a definite period at which their estate must cease. He then directs" all his freehold estates, and his house in which he lived, to be demised or let for any term which they shall think proper, at the best improved yearly rent which could be got for the same." It has been argued, that this merely creates a power, and that if the trustees make a lease, it would take effect out of their power and not out of their interest. There are no words here which distinctly create a power in the trustees, and it seems to me, that when an estate is devised upon a trust, and the trustees are to demise for any term they think proper (although at the best improved rent) the true construction is, that they are to create a term out of their interest; and if so, they must have a reversion after that term entirely ceases. The trustees are then 66 to pay one-third part of all the rents and profits of his freehold estates, and of his house, unto his wife and her assigns, for and during the term of her life." They must therefore have the legal estate in them for the life of the wife at least. They are then "to pay the residue for the daughter's sole and separate use, for her life, not to be subject or liable to the controul of her then present husband." These latter words shew, that the testator was particularly contemplating the protection of E. Longman, against 1818. DOE against WILLAN. 1818. DOE against WILLAN. against her then husband, and that probably he did not contemplate the case of her having a future husband. Then comes a limitation to her children, and it is said, that that limitation gives to them the legal estate, and that in that part of the will there is a change of language which shews, that at that period of time all the former purposes of the trust were to cease. The language there used is not so clear as to satisfy my mind, that that was necesssarily the intention of the testator. That the interest (if defeasible) would continue until the death of E. Longman, and would not end when her first husband died, seems to me to receive some confirmation from this, that if E. Longman had no child by her first husband, the limitation to her children, as far as it regarded childen by a future marriage, would have been a contingent remainder, and if the trustees did not take an interest co-extensive with her life, but one which might determine on the death of her first husband, that contingent remainder might have been defeated by the acts of E. Longman in her life-time. The estate, therefore, to the trustees, seems necessary for the purpose of protecting the interests of the children; and, inasmuch as the words "to them and their heirs" are calculated to give them the fee, I am not prepared to say that they took less than the whole legal estate, which therefore devolved upon the widow, as survivor, and upon her death descended to her daughter; and the legal estate must now be in her heir, ex parte materna. It seems to me, therefore, that this ejectment cannot be supported. ABBOTT J. I am also of opinion, that this ejectment cannot be maintained. The testator begins by de devising his estate unto the trustees, their heirs, executors, administrators and assigns. These words, in their natural import, would give them the fee. If it, however, appears clearly from the whole will, that it was not his intention that they should take the fee, but some less estate, we should so construe the will that the less estate should be taken and not the fee; but if we cannot discover what less estate would satisfy the terms of the will, or the objects which the testator had in view, we are not warranted in restraining the effect of the first clause, and under that we are bound to say, that the executors took the whole fee. The first object of the testator was, that the trustees should make leases for such terms as they might think proper, with this restriction alone, that they must reserve the best improved yearly rent and take no fine. Now if these leases were to be made out of their estate, they must have the fee; and in my opinion these words are not to be considered as creating a power, but as giving an interest. The will then proceeds to make some provisions by way of trust for his daughter, who was a married woman. It is possible that he might have intended that the interest of the trustees should cease when E. Longman and the widow both died; but it might also have been his intention that they should take an estate beyond that period, in the event of those deaths happening before Mrs. Longman's children had attained twenty-one years. I am not satisfied that that was not his intention; he evidently meant that two-thirds should be reserved from the personalty till that period; for he directs, that that should be paid to, and divided among the children, on their attaining twenty-one, and 1818. DOE against WILLAN. 1818. DOE against WILLAN. it seems to me to follow from these words, that the trustees were to retain the principal of that money, till that period. This makes it probable that the testator meant the children to take the land at the same period; but I am by no means clearly satisfied that he actually meant to restrain the estate in the trustees to that period. Not being able, therefore, clearly to see what less estate than the fee the trustees took, or even what less estate would satisfy all the objects of this will, I feel myself bound to give effect to the testator's first words, which are free from all ambiguity, and by which the trustees took a fee. I am therefore of opinion that the legal estate must be considered as vested in the heir at law, on the part of the mother, and that the plaintiff cannot recover. HOLROYD J. I am also of the same opinion, that the trustees under this will took an estate in fee. The estate is given to them and their heirs in trust, and amongst other trusts is one, that they should "demise all the freehold estates for any term they should think proper." This is not a power; a power is an authority to dispose of the estate, or of the intcrest of another person; but this is given to them to let for any term that they the trustees think proper; they are to receive the rent for a time at least because they are to pay part, viz. one-third, to the widow during her life. The lease therefore is to be made for rents payable to them, and not to another person for whom they are trustees. It appears therefore not only from the words of the will, which are words of trust, but also by the circumstance of the rents being receivable by them, that the leases were to operate out of the estate given to the trustees trustees themselves. Now such leases could not be valid, unless they took an estate more than commensurate with their duration; and as by the will they have the right to grant leases for any term of years, it follows, that in order to make such leases valid, they must take an estate in fee. It cannot depend upon subsequent events, whether they are to take an estate in fee or not, because they must take that estate in the first instance, on the death of the testator. I am therefore of opinion, that in order to effectuate the intention of the testator, the trustees must have an estate in fee, inasmuch as such an estate in them is necessary for enabling them to execute the purposes of their trust. Judgment of nonsuit. 1818. DOE against WILLAN. DOE, on the Demise of COLEMAN, against BRITAIN. (a) EJECTMENT for certain messuages, and premises in the county of Montgomery. The declaration contained two counts on the demises of I. T. Coleman; one on the 1st January 1814, the other on the 1st August, 1816. Plea, general issue. The cause was tried before Burrough J. at the last Spring assizes for the county of Salop, when a verdict was found for the plaintiff, subject to the opinion of the Court on the following case. Friday, A trader being estate for life, with the gene seised of an ral power of appointment, with remainder, in default of appointment, to himself in fee; after having committed an act of bank ruptcy, upon which he was afterwards de-. clared a bank rupt, executes his appointment in favour of an appointee: Held that all his interest having passed to the assignees by the assignment, that such appointment was void; and, therefore, that his assignee under the commission had a sufficient legal estate to maintain an ejectment. (a) This case was argued at Serjeants' Inn. William ลง |