This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
It may be mentioned, as a matter of historical interest, that, prima facie, every purchaser from trustees was, formerly, in Equity, bound to see to the application of his purchase-money; and whether he was, in any particular case, exempt from this liability was simply a question of intention on the part of the author of the trust: in other words, the power of his trustees to give receipts depended solely upon the degree of confidence, either expressly or impliedly, reposed in them.
The old law concerning trustee's receipts.
With executors, the case was different. Executors (h) could give a good discharge for the purchase-money of chattels real, though specifically bequeathed (i). The same rule seems to have applied to cases where executors took, either expressly or by implication, a power to sell freeholds or copyholds, the proceeds of sale to be applied by them as a mixed fund with the residuary personal estate (k): and, as respects chattels real, any one of several executors could sell, and give a good discharge for the entire purchase-money (l); though it was open to question whether either party could enforce specific performance of a contract entered into by less than the entire body of executors (m).
Old law, concerning executors receipts.
(h) Johnson v. Kennett, (1835) 3I.& K. 624; Eland v. E., (1839) 4 M. & C. 420; 8 L. J. N. S. Ch. 289; Forbes v. Peacock, (1844) 1 Ph. 717; 15 L. J. Ch. 371; Page v. Adam, (1841) 4 Beav. 269, 283; 10 L. J. N. S. Ch. 407; Glynn v. Locke, (1842) 3 D. & War. 11, 22; Robinson v. Lowater, (1854) 5 D. M. & G. 272; Bowling v. Hudson, (1853) 17 Beav. 248; Re Langmead, (1855) 7 D. M. & G. 353; and see Stroughill v. Anstey, (1852) 1 D. M. & G. 635; 22 L. J. Ch. 130.
(i) See Ewer v. Corbet, (1723) 2 P. Wms. 148; Burling v. Stonard, (723) ib. 150; Andrew v. Wrigley, (1792) 4 Br. C. C. 125; and see Thomlinson v. Smith, (1678) Finch, 378; A.-g. v. Potter, (1844) 9 Jur. 241; 14 L. J. Ch. 16; Re Culverhouse, 1896, 2 Ch. 251; 65 L. J. Ch. 484; Re Pix, (1901) W. N. 165; Thorne v. T., 1893, 3 Ch. 196; 63 L. J. Ch. 38; Graham v. Drummond, 1896, 1 Oh. 968; 65 L. J. Ch. 472.
(k) Tylden v. Hyde, (1825) 2 S. & S. 238; Jones v. Price, (1841) 11 Si. 557; 10 L. J. Ch. 195.
(0 Cole v. Miles, (1852) 10 Ha. 179; Sneesby v. Thome, (1855) 7 D. M. & G. 399.
(m) Sneesby v. Thome, ib. at p. 403; Fry, S. P. 6th ed. p. 195.
Modern legislation has provided complete protection for persons dealing bond fide with trustees (other than a sole trustee not being a trust corporation), and has exempted them from seeing to the application of trust purchase-money. As regards personal representatives, the wide powers possessed by them at Common Law have been still further enlarged, and have been extended to real estate; subject, however, to restrictions in the case of dealings by a sole personal representative.
By the A. E. Act, 1925, s. 2 (2) (which takes the place of s. 2 (2) of the L. T. Act, 1897), it is provided that where, as respects real estate, there are two or more personal representatives, a conveyance of real estate (save as otherwise provided) is not to be made without the concurrence of all such representatives or an order of the Court; but where probate is granted to one or some of two or more persons named as executors (whether or not power is reserved to the other or others to prove), a conveyance may be made by the proving executor or executors for the time being without an order of the Court.
Personal representatives: all must convey.
By s. 3 (1) (i), it is provided that in Part I. of the Act (which comprises the first three sections) "real estate" includes chattels real and every interest in or over land to which a deceased person was entitled at the time of his death.
By s. 22 of the A. E. Act, 1925, a testator may appoint, and in default of appointment is to be deemed to have appointed, as his "special executors" in regard to settled land (i.e., land vested in the testator which was settled previously to his death and not by his will) the trustees of the settlement, and probate (mm) may be granted to such trustee limited to the settled land. Where a person dies wholly intestate, administration, as regards land settled previously to his death, is to be granted to the trustees (if any) of the settlement if willing to act(n). By s. 24, the special personal representatives may dispose of the settled land without the concurrence of the general personal representatives, who may likewise dispose of the other property and assets without the concurrence of the special representatives. Under s. 155 of the Jud. Act, 1925, separate representation may be granted in respect of the real and personal estate.
Special executors of settled land.
(mm) See Re Bridgett and Hayes, 1928, Ch. 163; Re Gibbings, 1928, P. 28; Re Bordass, 1929, P. 107.
(n) Jud. Act, 1925, s. 162, amended by Ad. of Justice Act, 1928, s. 9. See Re Birch, (1929) W. N. 42.
Sect. 39 (1) of the A. E. Act, 1925, provides (inter alia) that in dealing with the real and personal estate of the deceased his personal representatives shall, for purposes of administration, or during the minority of any beneficiary, or the subsistence of any life interest, or until the period of distribution arrives, have the same powers and discretions as a personal representative had before the commencement of the Act, with respect to personal estate vested in him; and shall also have the powers and discretions conferred by law upon trustees for sale. The expression "personal representatives" in this clause includes the "special representatives " of a deceased tenant for life (o).
Powers of personal representatives.
In a case decided before the new legislation, where a testator had appointed special executors as to property situate abroad, and appointed other persons general executors, it was held that on a sale of property in England the general executors could make a good title without the concurrence of the special executors (p).