(0) Sec note (k). above.

(p) Cholmely v. Paxton, 3 Bing. 207, 5 Bing. 48; S C. nom.

Cockerell v. Cholmeleu, 10 B. & 564, 3 Russ. 565, 1 R & M. 418, I CI. ft Pin. 60.

Trustees should not sell at a valuation.

(q) Buckley v. Howell, 29 Beav. 546. See 3 Davidson, Pree. Conv. 295. 3rd ed.; Dart, V. & P. 68, 1184, 5th ed.; 76, 1296, 6th ed.; 77, 1117, 1134, 7th ed.

(r) Stat. 56 & 57 Vict. c. 53, s. 44, amended by 57 & 58 Vict. c. 10, s. 4, and extending to dispositions by way of exchange, partition or enfranchisement by a trustee or other person authorized so to dispose of land.

(s) Stat. 25 & 26 Vict. c. 108.

(t) Stat. 56 & 57 Vict. c. 53, s. 44 (2), amended by 57 & 58 Vict. c. 10, s. 4.

(u) Peters v. Lewes & East Grin-stead By. Co., 16 Ch.D. 703, 713, 18 Ch.D. 429, 437; Re Wilton's Settled Estates, 1907, 1 Ch. 50, 55; 1 Dart, V. & P. 79, 5th ed.; 90, 6th ed.; 89, 7th ed.

(x) Above, pp. 60, 71.

(y) 1 Davidson, Prec. Conv. 522, 4th ed., 434, 5th ed. In Re Llewellin, 37 Ch. D 317, a tenant for life without impeachment of waste selling under the Settled Laud Acts sold the settled land by auction with a stipulation that the purchaser should pay for the timber at a valuation to be made in the usual way. The vendor claimed to have the amount of this valuation paid to him. It was decided that he was not entitled to this. But no suggestion was made that the sale was invalid as an exercise of the statutory power on the ground that the price of the timber was to be ascertained by valuation. The remainderman was probably content with the result of the sale. But in Re Wilton' s Settled Estates, 1907, 1 Ch. 50, 55, it Option of purchase.

It must not be forgotten, in considering a title depending on the exercise by trustees of a trust for or power of sale, that the capacity to exercise the trust or power is not necessarily co-incident with the devolution of the legal estate. It is not every person succeeding to an estate given in trust who is competent to execute a discretionary trust or power connected therewith; on the contrary, the general rule is that such a trust or power can only be well executed by the persons whom the author of the trust has designated for the purpose, and in whom he has placed his confidence accordingly (b). Thus in every case in which such a trust or power is exercised by any other persons than those originally entrusted therewith, the question arises whether the persons who purport to act in exercise of the trust or power are expressly or impliedly authorized to execute the same. On this point the law is as follows: What persons, besides the original trustees, can exercise a trust for or power of sale.

Was laid down that a tenant for life selling under the Settled Land Acts ought not to sell at a price to be fixed by somebody else.

(z) See Cockerell v. Chomeley, 10

B. & 0. 564, 571.

(a) Clay v. Rufford, 5 De G. & Sm. 768,779, 780: Oceanic 8 Navigation Co. v. Sutherberry, 16 Ch. D. 2

(b) Crewe v. Dicken, -4 Ves. 97: Cole v. Wade, 16 Ves. 27. 46, 47: Re Crunden and Mex's Contract, 1909, 1 Ch. 690, 695, 696; and cited below, pp. 273, 274, and Re Rumney and Smith, 1897, 2 Ch. 351, 356, 859, 360. It does not appear that this rule was intended to be impugned by the remarks of Farwell, J., in Re Smith, 1904, 1 Ch. 139, 142.

First, with respect to discretionary trusts or powers coupled with an estate or interest, as where lands are vested in trustees in fee upon trust for or with power of sale. If several trustees be invested with such a trust or power, the same may be exercised by the survivors or survivor of them for the time being, unless a contrary intention should have been expressed in the instrument creating the trust (c). And if one or more of the trustees should disclaim, the trust or power may be exercised by the other trustees or trustee (d). Every new trustee duly appointed under the statutory power to appoint trustees - whether conferred by Lord Cran-worth's Act (e), the Conveyancing Act of 1881 (f), or the Trustee Act, 1893 (g) - has the same powers, authorities and discretions, and may in all respects act as if he had been originally appointed a trustee, and so can well exercise such a trust or power, after the estate has been properly vested in him. Any new trustee duly appointed under an express power has equal authority in this respect (h). And the same authority is now conferred by statute upon every trustee appointed by a Court of competent jurisdiction (i). With respect to the exercise of such a trust or power as we are considering after the death of a sole or the last surviving trustee, the true principle appears to be that the same is exercisable by the persons who succeed to the legal estate after his death, if the author of the trust has either expressly or impliedly authorized such persons to execute the same; but otherwise not (k). Thus, where lands have been vested in A. and B. in fee in trust that they, A. and B. (naming them, but not mentioning their heirs or other legal representatives), shall sell the same, it does not appear that under the old law of the descent of trust estates (/) the heir (m), or according to the present law (n) the executors or administrators of the surviving trustee, could well execute the trust (o). According to the old conveyancing practice in force before the commencement of the Conveyancing Act of 1881 (p), it was usual, where real estate was vested in trustees in fee on trust for or with power of sale, to provide expressly that the trust or power should be exercisable by the trustees originally appointed or the survivors or survivor of them, or the heirs of such survivor (q); and in such cases there was no doubt that the heir of the last surviving trustee could well execute the trust or power if he took the legal estate (r). But where lands were vested in trustees in fee on trust that they or the survivors or survivor of them or the heirs of such survivor should sell the same, and the surviving trustee devised the trust estate, it was held that the devisee, not being authorized by the creator of the trust to execute the trust for sale, could not make a good title on a sale of the lands (s). And in such a case, it may be noted, the heir could not execute the trust, for he had no estate in the land (t). Where lands were vested in trustees in fee in trust that they or the survivors or survivor of them or the heirs or assigns of such survivor should sell the same, it was held that the devisee of the last surviving trustee, being one of the persons expressly designated by the author of the trust, could well execute the trust for sale (u). It was held by Jessel, M. R., that where lands were devised to trustees and their heirs on trust for sale, it must be taken that the testator intended to annex the trust to the estate, and that the devisee of the surviving trustee could execute the trust for sale accordingly; and he considered that the preceding decision to the contrary (x) had been overruled (y). Subsequently, however, Baggallay and James, L. JJ., stated that they were not prepared to concur in this view (z), and Stirling, J., declared that he would hesitate to force upon a purchaser a title depending on the case of Cooke v. Crawford not being good law (a), and Parker, J., has expressed his assent to these criticisms (b). It appears, therefore, that the decision of Jessel, M. R., in Re Osborne to Rowlett (c), in so far as it conflicts with the principle above stated (d), can no longer be regarded as good law. As we have seen (e), since the Conveyancing Act of 1881 (f) took effect, real estate of inheritance vested in a sole trustee devolves, notwithstanding any testamentary disposition, upon his legal personal representatives in like manner as if the same were a chattel real vested in them, and they are to be deemed in law his heirs and assigns within the meaning of all trusts and powers. It appears, therefore, that the legal personal representatives of a sole or sole surviving trustee may now exercise such trusts or powers as we are discussing in all cases in which under the old law the estate would have descended to the heir, and the heir so taking the legal estate could have well executed the trust or power (g). But the authority of such legal personal representatives so to exercise the trusts or powers will cease upon the appointment duly made of new trustees in place of the deceased trustees, and thenceforward the new trustees will be the proper persons to execute the trust (h). Where lands have been devised to trustees in fee upon trust for sale, and the devise of the legal estate has failed by reason of the trustees' death in the testator's lifetime, or of their disclaimer, then, if the testator died before the commencement of the Land Transfer Act, 1897, his heir, and otherwise his personal representatives, would take the legal estate subject to the trusts declared by the will (i), but could not well execute the trust for sale (k); although in the latter case the personal representatives could, of course, exercise the power of sale given to them by the last-mentioned Act (l). It should be noted that a difficulty may arise as to the persons who are authorized to exercise a trust for or power of sale, where lands vested in a sole trustee in fee upon such a trust or with such a power have been devised by him (under the present law) to other persons than his executors. The Conveyancing Act of 1881 (m) does not expressly take away the power of devising real estate held in trust: it merely provides that, notwithstanding any testamentary disposition, the same shall vest on the trustee's death in his legal personal representatives in like manner as if the same were a chattel real vesting in them. Now, when a man dies possessed of a chattel real, it vests at first in his legal personal representatives by virtue of their office, notwithstanding that he may have bequeathed it specifically; but on their assent to the bequest the legal estate therein passes at once to the specific legatee without any further conveyance (n). And if a man be possessed of a chattel real upon trust, he may nevertheless devise his estate therein to other persons than his executors (o). And should he do so, it does not appear that his executors could disregard the specific devise and execute the trusts themselves, although the chattel has vested in them in the first instance by virtue of their office, and they would, but for the specific devise, be the proper persons to execute the trust. Thus, where leaseholds had been conveyed to two trustees, their executors or administrators (without further words), upon certain trusts, and the survivor of the two trustees devised all estates vested in him on any trust to A. and B. upon the same trusts on which he held the same, and appointed A., B. and C. his executors, it was held that neither the devisees of the trust estate nor the executors could exercise the trusts; and that since by the bequest the testator had taken the legal estate from those persons who ought otherwise to have been the trustees, the appointment of new trustees was necessary (p). It seems, therefore, that where real estate of inheritance vested in a sole trustee for sale or with power of sale has been devised by him to other persons than his executors, then, if under the old law the trust or powers could not have been well executed by his devisee, a purchaser could not safely accept the title under a purported exercise of the trust or power either by the executors alone or by the executors and devisees together. And if the terms of the trust should have authorized the assigns of the trustees to exercise the trust or power, still a purchaser could scarcely be advised to accept a title under a purported exercise of the trust or power by the devisees in conjunction with the executors; for as the latter are to be deemed in law the deceased trustee's heirs and assigns within the meaning of all trusts and powers, it would be doubtful to what persons the purchase money should be paid. In either case, therefore, the only Bale course would seem to be to require the appointment of new trustees.