sary, that whenever a term (say of 1,000 years) is about to become satisfied and attendant, that its attendancy should be prevented, as the court of Queen's Bench says it may be, by assignment upon trust for him, the purchaser, by name? for although the trust may be a nullity where the cestui que trust is the legal owner of the inheritance, yet how prudent and convenient will be the caution and help of such an assignment, if, as sometimes happens, the legal fee turns out to be elsewhere. The term will not, certainly, be even a shield, while the supposed inheritance fronts it; but if that vanish by the appearance of the real legal fee in some one else, the term will then become a sword, keeping off the legal fee, for at least the residue of a millenium. (See Doe v. Price, 16 M. & W. 603.)] PRECEDENT IV. CONVEYANCE ON A SALE BY AUCTION, BY A Parties. THIS INDENTURE, made this &c., BETWEEN (devisee in trust) of &c. of the first part, (purchaser) of the second part, and (termor) of the third part: Recitals. WHEREAS by indentures of lease and release bearing date respectively on the 1. Lease and release in fee, and days of , the release being made between (testator's vendor) of a rent charge. subject to the one part, and (testator) since deceased of the other part, for the valuable considerations therein expressed the hereditaments hereinafter described were conveyed to and to the use of the said (testator) and his heirs, but subject as therein mentioned to a rent-charge of £ to (annuitant) during her 2. Annui- life: AND WHEREAS the said (annuitant) died sometime in the year and the arrears of the said rent-charge were paid up to her death: AND WHEREAS (1) the said (testator) by his will dated and duly executed and attested (2), devised the said hereditaments to the said (trustee) and to tant's death. 3. Devise to trustees. Suggested recital of seisin in fee. Modes of reciting wills after the Wills Act. (1) If these recitals be omitted, as they may be without impropriety, the deed will commence with the recital of the testator's seisin, as infra. The chief reason for inserting the recitals is to preserve presumptive evidence of the discharge of the annuity. "WHEREAS (testator), late of &c. [(if a will before 1838), being at the date and execution of his will hereinafter recited, and so continuing to the time of his death, seised in fee of all the hereditaments hereinafter described, did by such will bearing date &c.] (if a will made after 1837), [being at the time of his death hereinafter mentioned seised in fee of all the hereditaments hereinafter described, did by his will bearing date &c., and duly executed and attested."] (2) [In reciting wills made prior to the operation of the Wills Act of 1837, when a continuous seisin to the death was necesbefore and sary in order to pass real estate, it is usual to state that the seisin of the testator continued from the making of his will until his death, for if the continuity of the seisin were broken, even for a moment, the will would be revoked. Hence, some gentlemen emphatically say, So continuing without intermission, &c., but the word “continue” of itself negatives an interruption of the seisin. It is also usual to state that the will noticed. (another trustee), since deceased, and their heirs (3), upon trust as therein mentioned for his testator's son for his life, and after his decease upon fur was "duly executed and attested for passing freehold estates by devise," as a will might be duly executed and attested but not for passing realty. [The alterations made by the Wills Act render it unnecessary to state any other seisin than at the death, or to state any other than a due execution and attestation, as a will so executed and attested will operate on both descriptions of estate. The clauses of the Act are as follows:: [1 Vict. c. 26, s. 23, no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate, except an act by which such will shall be revoked as aforesaid [i. e. marriage or destruction of the will], shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at his death; and (s. 24) every will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death, unless a contrary intention shall appear by the will. [And the execution of a will is to be by a signing at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who shall attest and subscribe the will in the presence of the testator, but no form of attestation shall be necessary (s. 9). See as to position of signature 15 & 16 Vict. c. 24.] An irregu- (3) [Devises to trustees sometimes assume the form of being "to lar mode A. & B., and the survivor of them and his heirs," the intention of devising to trustees being to express the result of a joint tenancy in fee, viz. that the survivor takes the fee. The legal reading of such a limitation is to give A. & B. a joint tenancy for life, with a remainder in fee to the survivor, who not being an ascertained person renders the remainder contingent. The effect of a remainder being contingent was that it possessed no capacity for legal transfer, ther trust that they the said trustees or the survivor of them should, as soon as conveniently might be after the death of his said son, sell the said heredita and the only way in which a conveyance would operate on it was under the doctrine of estoppel. The author in a Precedent framed by him to show the difficulty caused by such a form of devise, and the mode of obviating it where the inheritance consequent upon a destruction of the remainder by surrender of the particular estate for life could be readily obtained, remarked : "This was the devise in the well-known case of Vick v. Edwards (3 P. Wms. 372). Its effect was determined by that case to be, that the trustees took an estate for life with a contingent remainder in fee to the survivor. Mr. Fearne has controverted the conclusion, and contended in an elaborate argument that the devise passed in fee [which the author controverted in his Essay on Remainders, p. 227], but admits that the general practice of the profession militates with the authority of Lord Talbot, though supportable it is apprehended by the strongest arguments, and, under devises similar to that which has been discussed, it is generally deemed safe to take a title from the trustees alone with a lease and release,' p. 232. Mr. Preston says (3 Ab. 251), "It may be assumed to be a clear proposition, that under a mere simple gift to the survivor of two persons the interest will be contingent. So in a deed a gift to two and the survivor and the heirs of the survivor, or to two and the heirs of the survivor, would place the inheritance in contingency, though the immediate freehold may be vested. The same rule extends to gifts in wills, unless there are circumstances to call for a different interpretation. It is on the authority of Mr. Fearne rather than on the decision of Lord Talbot, that we must consider the devise in Vick v. Edwards as sufficient from the nature of the trusts to render the fee vested instead of being contingent, an opinion now very general and almost universal." [The difficulty on the subject of such a devise is now removed by the 8 & 9 Vict. c. 106, which makes a contingent interest disposable by deed, whether the object be or be not ascertained, (ante, p. 15)]. Devise in trust for sale carries the fee. As to the obligation of seeing ments either by public auction or by private contract, and together or in parts, for the best price that could be got for the same: and the said testator directed that the money arising therefrom should be paid to the said trustees or the survivor of them, and that the receipts which should be given by them or him for such money should be a legal discharge to the person or persons paying the same (4): Unless there are peculiar circumstances making the case an exception to the general rule, a devise in trust for sale carries the fee, without any limitation to the heirs of the devisee. (Doe v. Willan, 2 B. & Ald. 84.) [By the Wills Act, s. 30, where any real estate (not being a church presentation) shall be devised to any trustee or executor, such devise shall be construed to pass the fee, or other the testator's estate or interest, unless a definite term of years, absolute or determinable, or an estate of freehold, shall be given expressly or by implication. [And to secure the certainty of the estate taken by the trustee upon trusts of indefinite duration, sect. 31 enacts, that where any real estate shall be devised to a trustee without any express limitation of the trustee's estate, and the beneficial interest shall not be 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 such person's life, such devise shall be construed to vest in the trustee the fee simple or other the testator's whole legal estate, and not an estate determinable when the purposes of the trust shall be satisfied.] (4) Sometimes the recital adds "and exempt the purchaser or purchasers of the said premises from all necessity of looking to the ap- to the application of his or their purchase money." This plication clause is of course in the original trusts, but it may at least be of the purchase omitted in the recital of them, as its effect is included in the money. trustee's power of giving receipts. It does not always follow that the purchaser is obliged to look to the application of his money when the trustee is not expressly authorized to give receipts. The general rule is, that if the trusts |