The doctrine of uses and trusts applies as well to a will as to a conveyance made between living parties. Thus, a devise of lands to A. and his heirs, to the use of B. and his heirs, upon certain trusts to be performed by B., will vest the legal estate in fee simple in B.; and the Court of Chancery will compel him to execute the trust; unless, indeed, he disclaim the estate, which he is at perfect liberty to do (g). But, if any trust or duty should be imposed upon A., it will then become a question, on the construction of the will, whether or not A. takes any legal estate; and, if any, to what extent. If no trust or duty is imposed on him, he is a mere conduit-pipe for conveying the legal estate to B., filling the same passive office as a person to whom a feoffment or conveyance has been made to the use of another (h). From a want of acquaintance on the part of testators with the Statute of Uses (i), great difficulties have frequently arisen in determining the nature and extent of the estates of trustees under wills. In doubtful cases, the leaning of the courts was to give to the trustees no greater estate than was absolutely necessary for the purposes of their trust. But this doctrine having frequently been found inconvenient, provision has been made in the Wills Act (k),, that, under certain circumstances, not always to be easily explained, the fee simple shall pass to the trustees, instead of an estate determinable when the purposes of the trust shall be satisfied.
Uses and trusts.
(e) Co. Litt. 9b; 2 Black. Com. 108.
(f) 2 Jarm. Wills, 181 et seq., 1st.ed.; 225 et seq., 2nd ed.; 253 et. seq., 3rd ed.
(g) Nicolson v. Wordsworth, 2. Swanst. 365; Urch v. Walker, 3 Mylne & Craig, 702; Siggers v. Evans, 5 El. & Bl. 367, 380.
(h) 2 Jarm.Wills, 198, 1st ed.; 239, 2nd. ed.; 270, 3rd ed.; see ante, p. L64.
(i) 27 Hen. VIII. c. 10; ante, p. I53.
The above examples may serve as specimens of the great danger a person incurs, who ventures to commit the destination of his property to a document framed in ignorance of the rules, by which the effect of such document must be determined. The Wills Act, by the alterations above mentioned, has effected some improvement; but no act of parliament can give skill to the unpractised, or cause every body to attach the same meaning to doubtful words. The only way, therefore, to avoid doubts on the construction of wills, is to word them in proper technical language, - a task to which those only who have studied such language can be expected to be competent.
If the testator should devise land to the person who is his heir at law, it is provided by the "Act for the Amendment of the Law of Inheritance" (l) that such heir shall be considered to have acquired the land as a devisee, and not by descent. Such heir, thus taking by purchase (m), will, therefore, become the stock of descent; and in case of his decease intestate, the lands will descend to his heir, and not to the heir of the testator, as they would have done had the lands descended on the heir. Before this act, an heir to whom lands were left by his ancestor's will was considered to take by his prior title of descent as heir, and not under the will, - unless the testator altered the estate and limited it in a manner different from that in which it would have descended to the heir (n).
Danger of ignorance of legal rules.
Devise to heir.
(k) Stat. 7 Will. TV. & 1 Vict. c. 26, ss. 30, 31.
(l) Stat. 3 & 4 Will. IV. c. 106, s. 3; see Strickland v. Strickland, 10 Sim. 374. (m) Ante, p. 96.
It is usually the practice, as is well known, for every testator to appoint an executor or executors of his will; and the executors so appointed have important powers of disposition over the personal estate of the testator (o). But the devise of the real estate of the testator is quite independent of the executors' assent or interference, unless the testator should either expressly or by implication have given his executors any estate in or power over the same. In modern times, however, the doctrine has been broached, that if a testator charges his real estate with the payment of his debts, such a charge gives by implication a power to his executors to sell his real estate for the payment of his debts. The author has elsewhere attempted to show that this doctrine, though recognized in several modern cases, is inconsistent with legal principles (p); and in this he has since been supported by the great authority of Lord St. Leonards (q). In consequence, however, of the difficulties to which these cases gave rise, an act has lately passed by which, where there is a charge of debts or legacies, the trustees in some cases and in other cases the executors of a testator are empowered to sell his real estate for the purpose of paying such debts or legacies. The act to further amend the law of property and to relieve trustees (r), which was passed on the 13 th August, 1859, enacts (s), that where, by any will that shall come into operation after the passing of the act, the testator shall have charged his real estate or any specific portion thereof with the payment of his debts or of any legacy,and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debts or legacy out of the estate, such trustee or trustees may, notwithstanding any trusts actually declared by the testator, raise such debts or legacy by sale or mortgage of the lands devised to them. And the powers thus conferred extend to all persons in whom the estate devised shall for the time being be vested by survivorship, descent or devise, and to any persons appointed to succeed to the trusteeship, either under any power in the will, or by the Court of Chancery (t). But if any testator, who shall have created such a charge, shall not have devised the hereditaments charged in such terms as that his whole estate and interest therein shall become vested in any trustee or trustees, the executor or executors for the time being named in his will (if any) shall have the same power of raising the same monies as is before vested in the trustees; and such power shall from time to time devolve to the person or persons (if any) in whom the executorship shall for the time being be vested (u). And purchasers or mortgagees are not to be bound to inquire whether the powers thus conferred shall have been duly exercised by the persons acting in exercise thereof (x). But these provisions are not to prejudice or affect any sale or mortgage made or to be made in pursuance of any will coming into operation before the passing of the act; nor are they to extend to a devise to any person in fee or in tail, or for the testator's whole estate and interest, charged with debts or legacies; nor are they to affect the power of any such pa] testator's debts or lega-cies.