other the whole estate or interest which the testator had power to dispose of, unless a contrary intention appears by the will (g).

Question whether

legal estate; upon what it depends.

III. In what cases trustees take the legal estate under a devise, and as to the extent of their estate.

Where property is limited by will to the use of trustees take trustees, the legal estate vests in them by force of the words employed (h); but if the devise is to them to the use of or in trust for other persons, the question whether they take the legal estate depends on whether they have any duties to perform which require that they should take it. And when it has been thus ascertained that they take some estate, a question often arises as to the duration of such estate. As regards wills governed by the old law, the rule is that a devise to trustees which does not expressly limit the duration of the estate gives them an interest commensurate with the trusts to be performed. But as regards wills made since the Wills Act the rule has been modified by the 30th and 31st sections of the Act, which provide that where any real estate (other than or not being a presentation to a church) is devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years absolute or determinable or an estate in freehold is thereby given to him expressly or by implication: and that where any real estate is devised to a trustee without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate or in the surplus rents and profits thereof is not given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such

(g) Sect. 28.

(h) 2 Jarm. Wills, 4th ed. 289.

person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will, in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied.

trustees have

estate.

A devise to trustees upon trust, or to the intent that Cases in which they shall receive the rents and pay them to A. (i), or been held to upon trust to pay out of the rents, after deducting take legal rates, taxes, and repairs, such clear sum as should remain to A. (k), or to permit the devisee to receive the net rents (1), vests the legal estate in the trustees.

But under a devise to A. upon trust to permit B. to receive the rents (m), or to pay unto or permit B. to receive the rents (n), or to receive the rents and pay the same to B., or otherwise permit him to receive the same (o), the legal estate vests in B., and A. takes no estate. But under a devise (prior to the Married Women's Property Act, 1882) to a trustee to permit a feme covert to receive the rents for her separate use, the trustee takes the legal estate, as otherwise the rents would be receivable by the husband, which could not have been the testator's intention (p). And when

there are several trusts for the separate use of married women during their lives, separated by intervening limitations which if taken alone would vest the legal estate in the persons beneficially interested thereunder, the legal estate will be held to be vested in the trustees throughout, and the intervening estates are equitable only (q).

Trustees will take the legal fee when by the will they are directed to convey to a third person (r). In wills under the old law a devise to trustees in trust to pay annuities, and subject thereto in trust for

Where trustees

are directed to convey.

Devise to trustees in

trust to pay annuities, &c.

A trust to
raise money by

sale or mort-
gage gives the

trustees the legal estate.

So also does

a power, whether express or

implied, from a direction to

pay debts.

Effect of power of leasing

trustees.

A., gives the trustees an estate during the lives of the annuitants; and a devise to trustees in trust to apply the rents for the maintenance of A. until he attains twenty-one, and then to A. absolutely, gives the trustees an estate during A.'s minority only, but in both these cases the trustees would take the entire fee simple under a will made since the Wills Act.

Where land is devised to trustees in trust to raise money by sale or mortgage for payment of the testator's debts, or such of his debts as his personal estate will not satisfy (s), cr upon trust to demise or let the same(t), and subject to such trusts the land is directed to be held in trust for other persons, or is given directly to other persons, the trustees take the legal estate whether the will is under the old or the new law.

So also they take the legal estate under a devise upon trusts which, taken alone, would not have that effect, if such devise is followed by a power enabling them to raise money by sale or mortgage for payment of debts (u), and the result is the same, if the power arises by implication, as where there is a direction that the debts shall be paid by the executors, who are also the trustees (x); and a mere direction for payment of debts without saying by whom, followed by a devise to trustees who are also the executors, has the same effect (y).

If the words of a will made under the old law were being given to otherwise sufficient to carry the fee to the trustees, the fact that they were empowered to grant leases afforded an argument of weight in favour of their being construed so as to confer the whole legal fee on the trustees; but it was not conclusive, and when the testator's intention could be effected by holding that the trustees had an estate during the continuance of the trusts of

(s) Bagshaw v. Spencer, 1 Ves. sen. 142; Gibson v. Lord Montford, ib. 485.

(t) Doe v. Willan, 2 B. & Ald. 84. (u) Doe d. Cadogan v. Ewart, 7 Ad. & El. 637; Doe v. Davis, 1 Q. B. 430; 10 L. J. Q. B. 169.

(x) Spence v. Spence, 31 L. J. C. P. 189.

(y) Creaton v. Creaton, 3 S. & G. 386; Marshall v. Gingell, 21 C. D. 790. Kendrick v. Beauclerk, 3 Bos. & Pull. 175, if inconsistent with the above decisions, must be considered as overruled.

the will, with a power to lease while the estate vested in them for the purpose of the trust continues, the devise was so construed (2).

tors take the

Executors take the legal estate, although there is no When execugift in terms to them, if it is evident on the face of the legal estate. will that they are to sell and distribute the whole of

the testator's property (a).

Act, trustees

fee.

The effect of the 30th and 31st sections of the Wills Under Wills Act appears to be that if there is no express limitation take either a of the estate to be taken by the trustee, and yet there life estate or a are purposes which require that he should take some estate, he must take either an estate for life or an estate in fee simple. For instance, a devise to A. in trust to permit B. to receive the rents for life, with remainder to C., would vest no estate in the trustee, as there are no purposes requiring him to take any estate; a devise to A. in trust to pay the rents to B. for life, with remainder to C., would vest the legal estate in the trustee for the life of B. only; while a devise to A. in trust to accumulate the rents for ten years for a particular purpose, and subject thereto in trust for B., would vest the legal fee in A., as the purposes of the trust require that the trustee should take some estate, but there is no express limitation of the estate to be taken by him, and the beneficial interest is not given to any person for life (b).

rule to copy

The rule which (subject to the modifications intro- Application of duced by the Wills Act) limits the estate of the trustees holds or leaseunder an indefinite devise to one commensurate with holds. the trusts to be performed, applies to copyholds and leaseholds. Thus, a devise of copyholds to A. and his heirs in trust for B. and his heirs, or in trust for B. for life, and at his death in trust for C. and his heirs, gives A. the legal estate in the whole customary fee, because copyholds are not within the Statute of Uses; but if the devise be to A. and his heirs in trust for B. for life and after his death to (not in trust for) C. and his

(z) Doe d. Keen v. Wallbank, 2 B. & Ad. 554; Doe d. Kimber v. Cafe, 7 Exch. 675; Blagrave v. Blagrave, 4 Exch. 550.

(a) Davies to Jones, 24 Ch. D.

190.

(b) 2 Jarm. on Wills, 4th ed. p. 321; Hawkins on the Construction of Wills, p. 157.

Definition of a general legacy.

heirs, A. takes an estate for the life of B. only, with a legal remainder on the death of B. to C. (c); and in like manner a bequest of leaseholds to A. in trust for B. gives A. the whole term, but under a bequest to A. in trust for B. for life, and after B.'s death to C., it is apprehended (d) that A. takes the term, subject to an executory bequest in favour of C. to take effect on B.'s death (e).

IV. Legacies, general and specific, vested and contingent, gifts to children, next of kin, &c.

Legacies are either general or specific. A general legacy is a gift of money or something else to be paid, raised, or procured out of the testator's personal estate generally, and is not necessarily a part of such estate. Thus, a gift of £100 money or £100 stock is a good legacy, although the testator may have no cash or no stock at his death, and in such a case his executors must raise or buy it out of whatever property he may Definition of a leave. A specific legacy is a gift of some specified part of the testator's property, as a gift of "all my furniture," or "all the furniture that I may leave at my death," or "all my shares and stock in a railway company," and such a gift will include whatever property of the kind described the testator may leave at his death. But the thing given must be severed from the rest of the testator's property, and form the subject of a distinct gift. Thus, if a testator gives "all

specific legacy.

(c) Doe d. Woodcock v. Barthrop, 5 Taunt. 382; Baker v. White, L. R. 20 Eq. 166.

(d) Stevenson v. Mayor of Liverpool, L. R. 10 Q. B. 81.

(e) All limitations to trustees in a deed are strictly construed, and will take effect according to their strict legal meaning, unless the very object and intention of the instrument would be defeated by such a construction. See Venables v. Morris, 7 T. R. 342; Wykham v. Wykham, 18 Ves. 395; Colmore v. Tyndale, 2 Y. & J. 605. In a case where in terms a legal fee was given to trustees to preserve contingent

remainders, and afterwards by the same instrument a term of 500 years was limited to the same trustees, their executors, administrators, and assigns, for the purpose of raising a given sum of money by sale or mortgage for younger children's portions, the Court held that the limitation of a term of years to the trustees was so inconsistent with the limitation of the fee to them, that the limitation to the trustees and their heirs must be restricted to an estate pur autre vie by necessary implication. Curtis v. Price, 12 Ves. 89.