(m) See Wms. on Executors, 743. (n) Tylden v. Hyde, 2 Sim. & St. 238; Jones v. Price, 11 Sim. 557. (o) Sug. 834. (p) 3 Myl. & K. 630. (q) 12 Sim. 546.

And it appears to be consistent with authority to say, that the power, or want of power, (as the case may be,) to give valid discharges, being dependent upon intention as evidenced in the instrument declaring the trust, is unaffected by any subsequent matter or event.

This doctrine is, (it is believed,) generally admitted in cases where the intention is evidenced by an express power to give receipts; and, (it is submitted,) the result cannot be affected by the circumstance of the intention being evidenced by one rather than another set of expressions.

Nor are authorities wanting in support of this view; for instance, where the trusts were for payment of debts, and for other purposes also requiring a sale, the non-existence of debts at the time of sale, although disclosed to the purchaser, has been held immaterial (r); so, where the trust was to sell and pay the debts of such creditors as should execute the deed within a specified period, it was held, that, upon a sale after the expiration of that period, and although the creditors were then ascertained, the receipt of the trustees alone was a good discharge: Sir W. Grant observed, "according to the frame of the deed the purchasers were, or were not, liable to see to the application of the money; and their liability could not depend upon any subsequent event" (s).

Subsequent events immaterial; in cases where power to give receipts is expressed or implied; modern authorities.

(r) Page v. Adam, 4 Beav. 269; Johnson v. Kennett, 3 Myl. & K. 624; Eland v. Eland, 4 Myl. & Cr. 420; Forbes v. Peacock, 1 Ph. 717; and see Rep. note, 722.

(s) Balfour v. Welland, 16 Ves. 151, 156.

This last decision, it is conceived, goes the full length of the rule contended for; in Page v. Adam (t), Johnson v. Kennet (u), and Eland v. Eland (w), the rule was but partially recognised, inasmuch as (they being cases upon wills) it was only decided that the existence of debts at the death of the testator was sufficient; nor did the judgment even in Forbes v. Peacock (x) go any further; in fact, in all these cases, it was sufficient, for the purpose of deciding the question before the Court, to hold that the existence of debts at the death would sustain the power; it appears, however, from the reporter's note to the last case, that Lord Lyndhurst recognises what is here contended for as the true principle; viz. that the question is one of construction or intention; and it is, of course, evident that in considering a will upon a question of this nature, it must be held to speak from the date of its execution.

So, if the trust were for immediate sale, and to divide the proceeds among infants, and a sale were not to take place until some, or even all, of the infants attained majority, it is submitted, that the power of the trustees to give receipts would not be affected: the attainment of majority by the infants would be precisely the same, in principle, as the execution of the deed by the creditors in Balfour v. Welland (y); until, however, the law is more settled, it would, in such a case, be prudent to obtain, if possible, the concurrence of the adult cestui que trust.

And, on the other hand, if the intention to confide such a power to the trustees be not evidenced by the instrument creating the trust, subsequent events will not confer it on them; if, for instance, the trust be to sell and divide the proceeds between A. and B., and they so deal with their interests as to vest the beneficial estate in infants, or to make it the subject of contingent rights, so that a valid discharge by themselves or parties claiming under them becomes impracticable, this, it is conceived, would clearly not enlarge the powers of the trustees.

Remarks on Balfour v. Welland.

Attainment of majority by infant cestuis que trust, immaterial, semble.

Nor can subsequent events confer such a power.

(t) 4 Beav. 269.

(u) 3 Myl. & K. 624.

(w) 4 Myl. & Cr. 420.

(x) 1 Ph. 717. (y) 16 Ves. 151.

But cases where, as in Forbes v. Peacock (z), the trustees have power to sell for several purposes, and notice to the purchaser of the non-existence of that particular purpose, the contemplated existence of which alone indicated an intention to confer a power to give receipts, is held to be immaterial, must be carefully distinguished from cases where a purchaser has notice that the sole purpose of the trust is satisfied: in the one case the only question is, whether the trustees can give a good discharge for the money; and it has been held, and, (it is submitted,) properly held, that the confidence of the author of the trust is to be considered, not as varying, or temporary, but uniform, and coextensive with the duration of the trust; but, in the other case, the trust for sale no longer exists: so that if, in Forbes v. Peacock, the payment of debts had been the only object for which a sale was authorized, the purchaser, having implied notice that the debts were paid, would have also had notice that the sale itself was a breach of trust (a). So if, in dealing with an executor, the purchaser know that all the purposes, for the performance of which the Law empowers him to sell, have been already answered (b), or that he is selling for his own private benefit, the sale will be impeachable in Equity (c): so, if a trustee sell to pay his own debts, and the purchaser be aware that such is the case (d): but the mere fact of a beneficial devisee and executor, who has an estate subject to a charge of debts, selling it as his own, is no evidence of an intended breach of trust; for he is in truth the owner, subject to the charge, and it is his duty to satisfy the debts, which the sale may be the very means of enabling him to do (e).

Distinction between the above cases and those in which, all the purposes of the trust being satisfied, the sale is a breach of trust.