As to trusts or powers coupled with an interest.

Survivorship of the trust.

Disclaimer.

New trustees.

(c) So enacted as to trusts constituted after or created by instruments coming into operation after the 31st Dec. 1881; stat. 56 & 57 Vict. c. 53, s. 22, replacing 44 & 45 Vict. c. 41, s. 38. But with respect to trusts or powers coupled with an interest, these enactments did no more than declare the previous law; Co. Litt. 113a; Warburton v. Sandys, 14 Sim. 622; Watson v. Pearson, 2 Ex. 581, 594; Lane v. Debenham, 11 Hare, 188; Lewin on Trusts, 230, 509, 510, 6th ed., 288, 738, 11th ed.; Re Bacon, 1907, 1 Ch. 475.

(d) Co. Litt. 113a; Jenk. Cent. 44; Crewe v. Dicken, 4 Ves. 97, 100; Granville. McNeile, 7 Hare, 156. It is now settled that disclaimer of the estate, as well as of the office, of a trustee may be made by conduct only and need not be evidenced by matter of record or by deed; Re Birchail, 40 Ch. D. 436; Lewin on Trusts, 176, 177, 6th ed., 211, 212, 10th ed. It must not be forgotten that, where one is appointed executor and trustee of a will, refusal to act as executor, and even renunciation of probate, is not in itself a disclaimer of the trusteeship or of any estate in or power over land devised or given to the trustees of the will; but it may be evidence of such disclaimer; Lewin on Trusts, 220, 11th ed.; Re Gordon, 6 Ch. D. 531, 534. As to the effect of a disclaimer by all the trustees or the only trustee, see Mallott v. Wilson, 1903, 2 Ch. 494; below, p. 276, and nn. (i), (k).

(e) Stat. 23 & 24 Vict. c. 145, s. 27. ' (f} Stat. 44 & 45 Vict. c. 41, s. 31 (5).

(g) Stat. 56 & 57 Vict. c. 53, s. 10 (3).

Trust appointed by the Court.

Persons succeeding to the estate on the death of a sole or last surviving trustee.

(h) Such authority was ex-pivs.-l v conferred in the old common form of power to appoint new trustees: hut if not expressly conferred, it would be implied from the very fact that the creator of the trust expressly authorised the appointment of new trustees; Lewin on Trusts, 507, 6th ed.; 734, llth ed.

(i)Stat, 56; & .57 Vict. c. s. 37. replacing 44 & 45 Vict. 0. 41. 8. 33, and 23 & 24 Vict, c. 145, s. 27. Before the enactment last cited, new trustees appointed by the Court and not by virtue of an express power to appoint new trustees could not, as a general rule, exercise arbitrary or special discretionary powers conferred upon the original trustees, unless such powers should have been expressly or impliedly extended to the trustees for the time being; Fordyee v. Bridges, '1 Ph. 497,610; Newman v. Warner, 1 Sim. N. S. 457; Bartley v. hartley, 3 Drew. 384; Byam v. Byam, 19 Bear.

(k) Above, p. 271, and n. (b).

(I) Above, p. 219.

(m) Mortimer v. Ireland, 11 Jur. 721; Lewin on Trusts. 202, 6th ed.: 261, llth ed.

(n) Above, p. 221.

(o) Re Ingleby and Buak, etc L3 L. R. Ir. 326; Re Crunden and Meux't Contract, 1909, 1 Ch. 690. But distinguish the cases mentioned in note (r), p. 274, below. Stat. 44 & 46 Vict. c. 41, which came into operation after the 3ls1 Dec. 1881; s. 1 (2) .

W

Heir of sole or surviving trustee.

Devisee.

(q) Davidson, Prec. Conv.vol. i. p. 333, 4th ed.; vol. iii. pp. 858, 1271, 3rd ed.; vol. iv. p. 32, and note, 3rd ed.

(r) See Lewin on Trusts, 202, 6th ed. So the heir of the last surviving trustee could sell under a limitation to trustees and their heirs on trust "for sale" or "to sell" or that the trustee for the time being should sell; Re Morton and Hallett, 15 Ch. D. 143, 145, 149; Re Cunningham and Frayling, 1891, 2 Ch. 567.

(s) Cooke v. Crawford, 13 Sim. 91; Wilson v. Bennett, 5 De G. & S. 475; Stevens v. Austen, 3 E. & E. 685.

(t) Lewin on Trusts, 202, 6th ed.; 251, 252, 11th ed.

(u) Titley v. Wolstenholme, 7 Beav. 425; Hall v. May, 3 K. & J. 585.

(x) Cooke v. Crawford, 13 Sim. 91.

(y) Osborne to Rowlett, 13 Ch. D. 774.

Personal representatives of sole or surviving trustee.

Failure of devise of legal estate to trustee.

(z) fit Morton and Hallett, 15 Ch. D. 143, 149,150; and see Be Ingleby and Boak, 13 L. R. Ir.

(a) Re Rumney and Smith, L897, 2 Ch. 351, 357. (b) Re Crnnden mul Meux's Contract, 1909, 1 Oh. 690.

(e) 13 Ch. D. 771.

(d) Pp. 27::. 274.

(e) Above, p. 221

(f') Stat. 44 & 4.'. Vict. c. 41. s. 30.

(g) See Re Waidanis, 1908, 1 Ch. 123; Re Routledge'e Trusts 1909, 1 Ch. 280; Re Crunden and Meux's Contract, 1909, 1 Ch. 690

698,699; above, p. 274, and note (r).

(h) Re Routledge's Trusts, 1909

1 Ch. 280

18 (2)

Question in case of a devise by a sole trustee under the present law.

(i) Pitt v. Pelham, Freem. Ch. 134; Sonley v. Clockmakers' Co., 1 Bro. C. C.81.

(k) Robson v. Flight, 4 De G. J. & S. 608. 613; Farwell on Powers, 460, 2nd ed.

(I) Above, p. 233.

(m) Stat. 44 & 45 Vict. c. 41, 8. 30.

(n) Above, p. 218.

(o) See Stat. 7 Will IV. & 1 Vict. c. 26, s. 3; Lewin on Trusts, 198, 6th ed.

(p) Re Burtt, 1 Drew. 319.

In the case of a power of sale given to trustees without any estate in the land, such as the power of sale usually inserted in settlements of land before the Settled Land Act, 1882, took effect, the rule is even more strict that the same can only be well exercised by the persons designated for this purpose by the donor of the power (q). It is now provided (r), with respect to executorships and trusts constituted after or created by instruments coming into operation after the year 1881, that a power given to two or more executors or trustees jointly may be exercised by the survivors or survivor of them for the time being, unless the contrary were expressed in the instrument creating the power. Independently of this enactment, the law respecting the survivorship of bare powers appears to be as follows: I. The general rule is that, when a bare power is given to two or more persons, after the death of any one of them, it cannot be exercised by the survivor or survivors (s).