Indefinite held to be created. case certain property should not be sufficient to pay his chattel interest debts and legacies, then his executors should receive the profits (s) of his real estate for payment of his debts and legacies, and, after those should be paid, then he devised certain lands to P. for life, with remainders over; it was considered that the executors took a chattel interest only until the debts and legacies were paid. (t) *But in Gibson v. Lord Montfort, (u) where A gave all his real and personal estate to trustees, their executors, administrators and assigns, in trust to pay several annuities, sums and legacies out of the produce of the personal estate; if that should be deficient, then to pay the same out of the rents and profits arising by the real estate; and as to the residue of his real and personal estate, after provision being made for payment of the legacies, &c., he gave the same to the children of his daughter; Lord Hardwicke held that the trustees took a fee; for that, if these pecuniary legacies were not paid, the real estate must be sold to satisfy them; that this was a purpose which it was impossible to serve, unless the trustees had the inheritance. He said that the objection, that the words of limitation were descriptive of a chattel interest, might have had weight if there had not been a personal estate included in the devise. It will be observed, that here the word "estate" was adequate to pass the fee independently of the trust; but this was not adverted to by Lord Hardwicke. Trust to raise Trustees In the next case, however, a limitation to trustees and their personal representatives, to raise a sum of money, was held, under sum of money. the circumstances, to confer a chattel interest only, in addition to an estate of freehold which they took for other purposes. The case referred to is Doe d. White v. Simpson, (x) where a testator devised to A and B, and the survivor of them, and the executors and administrators of such survivor, certain lands, and the arrears of rents, and a bond and judgment given by C, a tenant, for rent due, in trust that they out of the rents and profits and arrears due should pay two life annuities; and, after payment thereof, then, in trust out of the residue of the rents and profits to pay to certain persons £800 for the children of W., and held to take a chattel interest. (8) As to the question whether the moneys in these cases are raisable out of the annual profits, or authorize a sale, see infra, ch. XLV., § 2. (t) See also Hitchens v. Hitchens, 2 Vern. 403, Pre. Ch. 133. (u) 1 Ves. 485 after payment of the said annuities and the £800, he devised the said estates to W. for life, with remainders over. And the testator authorized A and B, and the survivor, his executors, &c., to grant building leases, as often as there should be occasion, for any number of years. It was held, that the trustees took the legal estate for the lives of the annuitants, together with a term of years sufficient for the purpose of raising the £800, and not the fee. Lord Ellenborough relied *much on the bond and judgment being coupled with the lands in the devise. So, in Heardson v. Williamson, (y) where a testator devised to A and B, and the survivor of them, and the executors or administrators of such survivor, an estate at P., and a tenement at S., and the fixtures of his shop, in trust for sale, and with the money arising from such sale to pay off all such sums as should be owing upon mortgage of all or any of the estates thereinafter devised, and if any surplus should remain, upon trust to pay such surplus to his wife; and the testator devised his other estates to his wife during widowhood, subject to an annuity, and to the annual payment of £100 until the mortgage debts therein before directed to be paid by the sale aforesaid were discharged; and, after the decease of his said wife, in case the said debts should not have been paid off, the testator gave such estates to A and B and the survivor of them, and the executors or administrators of such survivor, in trust to let the same, and apply the rents in payment of the mortgage debts if any should remain, until the whole should be paid by the gradual receipt of the rents; and, after the decease or marriage of his wife, or the liquidation of the mortgage debts (as the case might be), the testator devised the last-mentioned estates to his son for life, with remainder to such children as he should have in fee. The son [who was heir-at-law] (2) executed a conveyance, which, if the estate limited to his children was a contingent remainder (he then having had no child), had destroyed such remainder; and hence arose the question, whether the trustees took the fee; if they did, the interests of the children, being equitable, of course were indestructible. Lord Langdale, M. R., admitted that the circumstances of the estate being limited to the trustees and their executors or administrators, would not prevent the fee from vesting in them if the purposes of the trust required it; but he observed, that they were to take only an estate until the debts were paid, and he did not see the least necessity for their having the reversion for that limited purpose. (y) 1 Kee. 33. [(2) 5 L. J. (N. S.), Ch. 166. The construction which gives to trustees an undefined chattel interest, either with or without a prior freehold, has been considered so inconvenient in its consequences, and so difficult of application, that its exclusion was (as we shall presently see) made one of the objects of the stat. 1 Vict., Doctrine of cases just stated abolished by 1 Vict., c. 26. c. 26. *[Even Trustees held to take a determinable fee. under the old law there was no case where, if the devise was in the first instance to trustees and their heirs, they were held to take an indefinite chattel interest. (a) Under such a devise, they were in some cases held to take a base fee determinable on payment of the charges, whether those charges were to be raised out of annual rents (b) or by sale or mortgage of the estate. (c) That construction, however, was inconsistent with the rule afterwards more fully recognized, that the express fee remained unless cut down by the context to a less estate of definite duration, and the cases in which it had been adopted were ignored: (d) their very existence was lately denied. (e) Indefinite chattel interest not devise expressly in fee. In Collier v. Walters (ƒ) a testator devised land to A and B, their heirs and assigns, upon trust to stand seized of the same "during the life of W. C., and also until the whole of my created where just debts, together with the following legacies, be fully paid off" upon the trusts thereinafter named, viz., upon trust to set and let the same, and to pay and apply the rents and yearly profits and the value of mature timber in discharge of the debts until they were paid, and then of the legacies, and from thenceforth upon further trust to pay over the rents to W. C. during his life, and after his decease and payment of all the debts and of the legacies and trust expenses, the testator" devised his said real estate to the heirs of the body of W. C., and for default of such issue to the testator's right heirs forever." In a previous case on the same will, it had been held by Sir J. Romilly, M. R., that the trustees took a determinable fee; (g) (a) The case of a defined chattel interest either expressly limited, Warter v. Hutchinson, 2 B. & Bing. 349, 1 B. & Cr. 721, or implied from the trusts, Doe. d. Kimber v. Cafe, 7 Ex. 675, must of course be distinguished. (b) Wellington v. Wellington, 4 Burr. 2165, 1 W. Bl. 645. See also Doe d. Brune v. Martyn, 8 B. & Cr. 497. (e) Glover v. Monckton, 3 Bing. 13. (d) Blagrave v. Blagrave, 4 Ex. 550. And see Poad v. Watson, 6 Ell. & Bl. 606. (e) By Jessel, M. R., L. R., 17 Eq. 261. (f) L. R., 17 Eq. 252. (g) Collier v. M'Bean, 34 Beav. 426. On appeal, L. R., 1 Ch. 81, K. Bruce, L. J., thought the trustees had a fee simple absolute; but under the circumstances the court would not force on a purchaser a title depending on that construction. but this was deemed by Sir G. Jessel, M. R., to be untenable. (h) It was then argued that the express terms of limitation ("during the life of W. C., and also until " debts and legacies were paid) gave the trustees a freehold interest during the life of W. C., and, if at his death the debts were not paid, a further chattel interest until they were paid. But the M. R. rejected this construction also. He said it was *quite a possible interest, but he could not find it there. It might have been so if those were the words, but they were not the words. It would give a new estate (if necessary) after the life estate; but the words were, in the first place, "to pay the rents and profits," and then to pay the surplus to the tenant for life, showing that, instead of raising a new contingent estate the testator thought that W. C. would live long enough to allow the rents to pay off the whole of the debts and legacies during his life. (i) There was not enough, therefore, to cut down the fee first given to any less estate; while the trust to set and let, and the implied authority to cut timber, which in the absence of an express power they could only possess as owners of the fee, were reasons the other way. Trustees held to take a fee, though the trust was not It is further to be observed that,] even under the old law, it was held that if the purposes of the trust could not be satisfied by an estate pur autre vie, or by such an estate with a chattel interest superadded, the trustees took the fee, though the prescribed purposes did not require and could not exhaust the entire fee simple.10 sirictly commensurate. Thus, in Harton v. Harton, (k) where the devise was to A and B and their heirs, in trust to permit C (a feme coverte) to re- Harton v. ceive the rents during her life for her separate use and so Harton. as not to be subject to the debts, &c., of her husband, with remainder to the use of her sons successively in tail, remainder to her daughters in tail; and in default of such issue (without fresh words of gift, See now as to doubtful titles Alexander have priority in right during the life of #. Mills, L. R., 6 Ch. 124. (h) He said that no authority could be found for such an estate. Neither Wellington v. Wellington nor Glover v. Monckton was cited. (This, pushed home, would show an intention to give the trustees and their heirs an estate for the life of W. C. and no more. Might not "the words" mean only that the debts and legacies should W. C., and if at his death there were any still unpaid then that the trustees should have some further estate "until" payment?] 10. Deering v. Adams, 37 Me. 264; Inman v. Jackson, 4 Greenl. 237; Richardson v. Woodbury, 43 Me. 206. (k) 7 T. R. 652. See also Hawkins v. Luscombe, 2 Sw. 391. upon trust to permit D (another feme coverte) to receive the rents for her separate use, with remainder to the use of her sons and daughters in tail in like manner, and so on to another feme coverte and her children, and then to the use of E in tail, with reversion to the use of the testator's own right heirs. It was held that the trustees took the fee; "that construction," it was said, "being necessary to give legal effect to the testator's intention to secure the beneficial interest to the separate use of the femes coverte." Lord Eldon's Of this case, Lord Eldon has observed, that "there being trusts for the separate use of married women, after various trusts not for married women, those trusts could not subsist *unless the legal estate was in the trustees from the beginning to the end; and they relied on the non-repetition of a legal estate, there being a gift to the wife of one of the parties; and if there had been a repetition of the legal estate after every trust for a married woman, they would not have held the whole legal estate to be in the trustees." (1) Perhaps it is not strictly accurate to say, that in this case a fee in Remark the trustees was necessary to secure the beneficial interest thereon. to the femes coverte; for though the trusts in favor of the second and third women could not arise until the failure of the objects of the intervening limitations in tail, yet still they must inevitably take effect, if at all, in their lifetime, and the fact that in reaching them the estate necessarily comprehended the objects of the intervening limitations, with regard to whom no purpose was to be answered requiring that the trustees should take an estate, might seem to be no reason for extending that estate to the limitations subsequent to the gifts to the several femes coverte. But probably the court thought it better to vest the whole fee in the trustees, than to create a particular estate which might extend to some of the beneficial devisees not within the scope of it, and would affect their relative situation, by preventing the devisees in tail, to whom it extended, from suffering a recovery. [In Brown v. Whiteway, (m) which was a devise to trustees and their heirs on trusts somewhat similar to those in Harton v. Harton, Sir J. Wigram, V. C., felt bound by its authority, and decided accordingly; but said he could not see why it was necessary to hold that the intermediate estates should not be good legal estates. However, (1, See Hawkins v. Luscombe, 2 Sw. 391. [(m) 8 Hare 145. |