that where a testator had charged his real estate by will, both debts and legacies should take place of every other disposition. That the legacies should stand in the same place as debts, and that there was no reason why they should not have the same preference. The principle, however, was perfectly different, the one being purely voluntary, the other obligatory. Wherever a man made a will, he was supposed to do that which conscience obliged him to do; and if he showed an intention that his debts should take place of every other disposition, and that he meant they should be paid, the Court would strictly enforce that intention. The same principle would not apply to legacies. The estate contended to be charged was specifically Vide3 Ves.551. devised, and he could not see any reason why pecuniary legacies should have any preference to such specific devises. If he was to direct these legacies to be so raised and paid, it would be giving them that undue preference. What words enable persons to sell fanasuh lands. 23. Littleton says, (s. 169) where a person had a power, by the custom, of devising his lands, he might devise that his executors might alien and sell them for a certain sum, to distribute for his soul. In this case, though the devisor died seised of the tenements, which descended to his heir, yet the executors might sell them, and put out the heir, and thereof make a feoffment alienation and estate by deed. And Lord Coke 1 Inst. 113. a. observes, that the feoffee shall be in by the devisor. 24. From this doctrine arose a custom for testators Idem. to direct that their executors should sell their lands for payment of their debts; or to devise their lands to their executors for that purpose. In the latter case the lands vest in the executors; but in the former they have only a bare authority; and it being formerly held, that if one executor refused to join, the others could not sell, it was enacted by the stat. 21 Hen. VIII., c. 5., that where lands were willed, to be sold by exe- Bonifant v. cutors, though some of them refused, yet the rest might Cro, Eliz. 80. Greenfield, Fearne's Op. 222. 1 Inst. 113. a. n. 2. Tit. 12. c. 1. Tit. 8. c. 1. § 7. Newman v. Johnson, 1 Vern. 45. sell. And though the letter of the law extended only to cases where executors had power to sell, yet being a beneficial act, it was by construction extended to the case of lands devised to executors to be sold.* 25. It has been doubted whether a power of sale, given to executors, be capable of survivorship or transmission. But Mr. Hargrave observes, that this question is now of little consequence; for such a power, though extinct at law, would certainly be enforced in equity; which rightly deeming the purpose for which the testator directs the money arising from the sale to be applied, to be the substantial part of the devise, and the persons named to execute the power of selling, to be mere trustees, the case fell within the general rule of equity, that a trust shall never fail of execution for want of a trustee; and that if one is wanting, the Court will execute the office. 26. It has been stated that where a man devises his lands to his executors, for payment of his debts, and until his debts are paid; although the determination of such estates be uncertain, yet they are only chattel interests, transmissible to their executors. And it is now settled, that any words from which it can be inferred to have been the intention of the testator that his lands shall be sold for payment of his debts, will operate as a power of sale. 27. A person having surrendered his copyhold lands to the use of his will, devised in these words: “ My debts and legacies being first deducted, I devise all my estate real and personal to J. S." It was decreed by Lord Nottingham that these words amounted to a devise to sell, for the payment of debts. * It is said by Littleton, § 169., that in the case of an authority to sell, the executors may make a feoffment, alienation, and estate, by deed, or without deed. The reason is, that the purchaser is in by the devisor; the executors having a mere right of nomination. Vide Vin. Ab. Tit. Authority, B. Browne, Blatch v 28. The same point was determined in a subse- Wareham v. quent case. But this kind of power being a naked 2 Vern. 154. one, and not coupled with an interest, the heir at law, Wilder, or devisee must, in general, join, in order to transfer 1 Atk. 420. the legal estate to the purchaser. Bentham v. Wiltshire, 4 Madd. 44. Patten v. Randall, 1 Jac. & Walk. 189. Bateman v. Bateman, 29. R. Bateman by his will, taking notice that he had surrendered a copyhold estate to the use thereof, directed that the said copyhold should remain, one third to his wife for life, and the other two thirds to 1 Atk. 421. his son, paying to his two daughters 150l. a-piece at twenty-one; but by a latter clause in the will he said, "Provided that if my personal estate and my house and lands at W. should not pay my debts, then my executors to raise the same out of my said copyhold premises." Lord Hardwicke said, the question was, whether the later devise would entitle the executors, to sell the copyhold estates; and he was of opinion it would: for as the rents were not near enough to discharge the testator's debts, these words would give the trustees a power to sell, to satisfy the testator's intention of paying his debts. It was therefore decreed that the copyhold estate should be sold. A Bradford, 30. In a subsequent case, where a testator had Bath v. created a trust for payment of debts, Lord Hard, 2 Ves 587. wicke said, that the trustees might raise the money by mortgage or sale, without the assistance of the Court of Chancery; that it was common for trustees to do so, and that Court, if it came before them afterwards, had always supported it, 31. G. Lancaster, being seised in fee of some lands, and possessed of others for a term of years, made his will; and after giving certain legacies, proceeded thus:-"I do hereby charge and make chargeable all and every my lands and inheritance, and leasehold, with the payment of my debts, funeral expenses, and legacies; and for more speedily raising money for payment of them, I devise to G. E. and D. Lancaster Lancaster v. Thornton, (who were his two sons and daughter,) their heirs, executors, and administrators, the leasehold estate,' describing it, for all the residue of the term, upon trust to sell the same, and to apply the money to the payment of his debts, &c. But in case the money arising from the sale of the leasehold estates should not be sufficient to pay and discharge all his debts; then he devised-" that his said two sons and daughter should and might absolutely sell, mortgage, or otherwise dispose of his freehold estate, for the payment of such of his said debts, &c. as his said leasehold estate should not be sufficient to discharge." And appointed his two sons and daughter executors. The leasehold estate was not sufficient to pay the testator's debts, legacies, and funeral expenses. Lord Keeper Henley directed a case to be sent for the opinion of the Judges of the Court of K. B. whether any estate passed to the two sons and daughter of the testator; or only a power to sell. Lord Mansfield said, there were no words by which the estate was devised to the executors; therefore if it were construed that there was a devise to them, it must be raised by implication: but by the frame of the will it was plain that the testator did not so intend; for he showed, by the expression he had used, that he knew the distinction between the devise of an estate to them, and giving them only a power to sell; as to the term devise, the expression, I devise, was here synonymous to saying, I will, or my mind is. The intention of the testator (it was said) could not be complied with in this case, without an implication of a devise to the executors; because it must otherwise descend to the heir at law, in the mean time, who would not be chargeable with the intermediate rents and profits, but altogether unaccountable for them; that clearly was not so. The land could only descend to the heir, subject to the charges, and would be liable in his hands to the payment of debts, legacies, and funeral expenses. So that the testator's intention was equally answered one way as the other. The certificate was as follows-" Having heard counsel on both sides, and considered this case, we are of opinion that no estate passed to the said Edmund, George, and Dorothy Lancaster; but only a power to sell, demise, mortgage, or otherwise dispose of the premises." Bowyer, 11 East, 288. 32. It was held by the Court of K. B. in a modern Denne v. case that where one devised lands to five persons in trust to sell, and to apply the money to certain uses, and afterwards made the same persons executors; they did not take the lands as executors; but as devisees in trust. 265.b. Willis v. 33. Where powers of this kind are given to strangers 1 Inst. 237. a. they cannot be extinguished, either by the persons to whom they are given or by those who are in posses sion of the land. 34. It has been stated in a former chapter, that devises of land are fraudulent as against creditors. But devises for payment of debts are notwithstanding valid. Shorrall, Tit. 35. c. 10. Ante, c. 1. 35. The cases in which purchasers from devisees or Tkt. 12. c. 4. executors are bound to see to the application of the purchase money, have been already stated: Hall, 36. A will directing estates to be settled in strict Wheate v. settlement, and being silent about powers, does not 17 Ves. 80. authorize the insertion of a power of sale in a settlement. And a will directing proper powers for making leases, and otherwise, according to circumstances for the tenants for life to be exercised by them when qualified, does not authorize the insertion of a power Brewster v. of sale and exchange to be exercised with the consent & Walk, 625. of the tenant for life. Angell, 1 Jac. |