Release of power, where a breach of trust.

The law as to the exercise by any new trustee duly appointed of a bare power given to any trustee or trustees is the same as governs the exercise by a new trustee of a power coupled with an interest (s). With respect to the exercise by any other person than a new trustee duly appointed of a bare power given to a trustee or trustees after the death of a sole or the last surviving trustee, there is, of course, no succession to any estate in the land, and the power can only be exercised, if at all, by some person expressly designated for the purpose by the donor of the power, as where the executors or administrators of the last surviving trustee are mentioned among the persons to whom the power is given (t).

Exercise of a bare power by new trustees.

By any others after the death of the original donees.

Power by the exercise of which the donee can acquire no interest in the subject-matter of the power, given to a person who has not any interest therein at the time of the creation of the power and takes no interest therein under the instrument conferring the power; see Sug. Pow. 47. 48.

(k) Sug. Pow. 50.

(l) Sug. Pow. 50, 126; above, pp. 278-280.

(m) Stat. 21 Hen. VIII. c. 4

(n) Above, p. 279.

(o) Keates v. Burton, 14 Ves. 434; A.-G. v. Fletcher, 5 L. J. (N. S.) Ch. 75; see Farwell on Powers, 95-98, 2nd ed.

(p) Crawford v. Foreshaw, 1891, 2 Ch. 261, 266, 267.

(q) Welter v. Ker, L. R. 1 Bo. App. 11; Re Dunne's Trusts, 1 L. R. Ir. 516; Sun! v. Pattinson 34 W. R. 561.

(r) Re Eyre, 49 L. T. N. S. 269.

(s) Above, p. 272: see Hall v. Dewes, Jac. 189.

In the case of a purchase from trustees exercising a power of sale, the conveyancer advising the purchaser must have regard to the provisions of the Settled Land Act, 1882 (u), which make the consent of the tenant for life under a settlement necessary 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 the Act. He must consider, therefore, whether the instrument conferring the power is, either alone or together with other instruments, a settlement within the meaning of the Act (x). And. if it be, he should require the limitations of the beneficial interests under the settlement to be abstracted (if this has not been done) sufficiently to show whether there is a tenant for life, or a person having the powers of a tenant for life, entitled in possession under the settlement (y). And if the existence of any such person be disclosed, the conveyancer should require him to consent to the exercise of the power; for if such consent should not be obtained, any conveyance to him by the trustees in supposed pursuance of the authority conferred by the settlement would be void as an exercise of the power (a).

Trustees exercising a power conferred by a settlement for some purpose provided for in the Settled Land Acts.

(t) Sec above, pp. 278-280; Farwell on Powers, 453, 454, 2nd ed.

(u) Stat. 45 & 46 Vict. c. 38, s. 56, sub-s. 2, enacting that in case of a conflict between the provisions of a settlement and the provisions of this Act, relative to any matter in respect whereof the tenant for life exercises or contracts or intends to exercise any power under this Act, the provisions of this Act shall prevail; and accordingly, notwithstanding anything in the settlement, the consent of the tenant for life shall, by virtue of this Act, be necessary to the exercise by the trustees of the settlement or other person of any power conferred by the settlement exercisable for any purpose provided for in this Act. (x) See stats. 45 & 46 Vict, c. 38, s. 2; 53 & 54 Vict. c. 69, s. 4; Re Ailesbury and Iveagh, 1893, 2 Ch. 345; Re Mundy and Roper's Contract, 1899, 1 Ch. 275; Talbot v. Scarisbriek, 1908, 1 Ch. 812, 819, deciding that a private Act of Parliament, which simply conferred powers upon the trustees of a settled estate, but did not alter or affect the limitations of the property, was not one of the instruments constituting the settlement; and see next chapter.

It will be observed that the only powers, to the exercise of which the consent of the tenant for life is so required, are those conferred by the settlement and exercisable for any purpose provided for in the Act. It must not be forgotten that in this context the expression "the settlement" means the settlement as defined in the Act, and therefore extends to any group of instruments forming what is termed a compound settlement (a). The purposes provided for in the Act are, of course, principally the sale of settled land and the application of the purchase-money in manner therein provided, the exchange and partition of settled land and the leasing thereof for the terms specified in the Act (b); and any express powers conferred by the settlement for any of these purposes, upon any person or persons other than the tenant for life, are exercisable only with his consent. If, however, the settlor should have given to trustees larger powers over the settled land than are by the Act conferred upon the tenant for life, as if he should have authorized them to sell in consideration of the receipt of debentures of or shares in a company, or of the grant of a rentcharge, or to lease for longer terms than may be granted under the Act, these powers are perfectly valid (c); and it does not appear that they would be "exercisable for any purpose provided for in this Act" (d), so as to make the consent of the tenant for life necessary to their exercise (e). It has been suggested (f) that to the exercise of a power given to trustees for raising charges by mortgage or sale the consent of the tenant for life would not be necessary, on the ground that the trustees would have a title paramount to that of the tenant for life, and he could not prevent the raising of the charges. But with regard to a power conferred by the settlement to raise charges by sale, it must be remembered that the Settled Land Act, 1882 (g), authorizes the application of the proceeds of a sale of the settled land by the tenant for life under the power thereby conferred in the discharge of any incumbrances affecting the inheritance of the settled land or other the whole estate, which is the subject of the settlement. So that if the charges to be raised should come within the definition of such incumbrances, their raising by sale would appear to be a purpose provided for in the Act; and it is thought that in such case it would not be safe to rely on an exercise of the express power of sale without the tenant-for-life's consent. As regards a power for trustees to raise charges by mortgage, prior to the Settled Land Act, 1890, a tenant for life had no general power to mortgage the settled land in order to raise money to discharge some incumbrance affecting the same; so that raising charges by mortgage was not a purpose provided for by the Settled Land Act, 1882. The Act of 1890 (h), however, empowered the tenant for life to mortgage the settled land for the purpose of raising money to discharge an incumbrance thereon. And as this Act and the previous Settled Land Acts are to be read and construed together as one Act (i), it seems that the raising of money by mortgage to discharge incumbrances is now a purpose provided for in the Acts, and consequently that an express power for this purpose conferred on trustees by the settlement is no longer well exercisable without the consent of the tenant for life. Where the settlement contains, not a mere discretionary power, but an imperative trust exercisable for some purpose provided for in the Act, it appears that the consent of the tenant for life to the exercise of the trust is not required (k).