(y) See stat.45&46Vict. c.38, ss. 2 (5), (7), 58

(z) See Re Newcastle's Estates, 24 Ch. D. 129, 139 sq.: Re Clitheroe Estate, 28 Ch. 378: 31 Ch. D. 135; Re Atherton, 1891, W. N. 85.

(a) See note (x), above.

(b) See stat 45& 46 Vict. c. 38 ss. 3, 6, 21

(c) Stat. 45 & 46 Vict. c. 38 88.56 (l) ,57; Lonsdale v. Lowther, 1900, 2 Oh. 687.

(d) See sect. 56 (2), above, p. 282. and n. (u).

(e) This statement assumes that by the exercise of the express power something will be done which the tenant for life could not do under his statutory power. But if by the exercise of a larger power than that conferred by the Act it were proposed to do something which could be done under the statutory power, as if under a power for trustees to grant building leases for any term not exceeding 120 years it were proposed to grant a building lease for 99 years on the same conditions as are authorized by the statutory power, the case is different: and the consent of the tenant for life would appear to be necessary.

(f) Wolstenholme's Conveyancing and Settled Land Acts, 387, 8th ed.

(g) Stat. 45 & 46 Vict. c. 38, s. 21 (ii).

By the Settled Land Act, 1881 (l), where two or more persons together constitute the tenant for life for the purposes of the Settled Land Act, 1882, then, notwithstanding anything contained in the above-cited provisions (m) of that Act requiring the consent of all those persons, the consent of only one of those persons is to be deemed necessary to the exercise by the trustees of the settlement, or by any other person, of any power conferred by the settlement and exercisable for any purpose provided for in that Act. By the Act of 1882 (n), if in any case there arc two or more persons beneficially entitled to possession of settled land as tenants in common, or as joint tenants, or for other concurrent estates or interests, they together constitute the tenant for life for the purposes of that Act. In any such case, therefore, one only of such persons need now consent to the exercise by the trustees of the settlement, or any other person, of any power conferred by the settlement and exercisable for any purpose provided for in that Act. Where lands were given for the benefit of several persons in undivided shares, and some of the shares were given in fee and others limited to a donee for life with remainder over, and a power was given for trustees to sell the entirety of the premises, it was questionable whether the consent of the tenants for life of the settled shares was necessary to the exercise by the trustees of their power of sale over the entirety. For the power of sale conferred by the Settled Land Acts would embrace the settled shares only, and it was only as regards these shares that the land would be the subject of a settlement within the meaning of those Acts; so that the power to sell the entirety might be considered to be not a power conferred by the settlement and exercisable for a purpose provided for in the Acts, but a power altogether paramount to the settlement. But in a case (o) where a testator gave one-fifth part of his estate to each of his four daughters for life with remainder over, and gave the remaining fifth part to the children of a deceased daughter absolutely, and empowered trustees to sell the whole of his estate, Kekewich, J., held that there was a conflict between this express power of sale and the power of sale given by the Settled Land Acts, because the sale of the entirety would deprive the tenants for life of the settled shares of their statutory power to sell them; and that the consent of the tenants for life was therefore necessary to the exercise by the trustees of their express power of sale. And he further decided that the tenants for life of the four settled shares did not together constitute a tenant for life within the meaning of the Settled Land Act, 1882 (p), so as to enable the required consent to be given under the Act of 1884 (q) by one only of them.

Where two or more persons together constitute the tenant for life.

(h) Stat. 63 & 54 Vict. c. 69, s. 11.

(i) Sect. 2.

(k) See Taylor v. Poncia, 25 Ch. D 646.

(l) Stat. 47 & 48 Vict, o. 18, 1 . (m) Stat. 45 & 46 Vict. c. s. 56 (2); above, p. 282, n. (u) . (n) Sect. 2 (5), (6).

(o) Re Osborne and Brighfs, Ltd., 1902, 1 Ch. 335.

It must not be forgotten that, when land is settled either by deed or will on trust for sale and investment of the purchase-money for the benefit of various persons in succession, and the lands are not immediately sold, estate duty will become payable on the death of any one of those persons, and will, it appears, become a charge on the land. On a purchase, therefore, from the trustees for sale under such a settlement, the purchaser, if he have notice of the death on or after the 1st August, 1894, of any person so interested in the purchase-money, must see that all estate duty, which has become so charged on the land sold, has been or shall be paid (r).

Estate duty chargeable on land settled on trust for sale.

If trust money be improperly invested in the purchase of land, it is the duty of the trustee to realise the investment at the earliest favourable opportunity, and invest the proceeds in some manner authorized by the instrument which created the trust. The trustee is therefore empowered to sell the land, and can make a good title thereto and convey the same without the concurrence of the beneficiaries, notwithstanding that the purchaser have notice of the breach of trust; unless the beneficiaries, being all sui juris, have elected to take the land in specie (s).

Sale of land purchased in breach of trust.

(p) Stat. 45 & 46 Vict. c.38 s. 2 (5), (6).

(q) Stat. 47 & 48 Vict. 0. 18, s.6 (2)

(r) Stat. 57 & 58 Vict. c. 30, ss. 1, 2, 9 (1), 24; see the ohapter on the Death Duties in the second volume.

(s) Re Patten and Edmonton Union, 52 L J. Ch. 787; Power v. Banks, 1901, 2 Ch. 487, 496: Be Jenkins and Randalls Contract, 1903. 2 Ch. 362; see above, p. 260; Dart, V. & P. 610-612, nth ed.; 687-689, 6th ed.; 629-630, 7th ed.