the proceeds or the principal, or in the application of the income; or if the purpose of the trust is to protect the estate for a given time, or until the death of some one, or until division, or until a request for a conveyance is made. So if an estate is given upon a trust to sell or mortgage for the payment of debts, legacies, or annuities, or to purchase other lands to be settled to certain uses; and this construction will not be affected by a power given to one of the cestuis que trust to control the sale of part of the estate,5 nor by the fact that the direction for the payment of debts and legacies, out of the proceeds of the sale of the land, is only in aid of the personal property.

§ 306. If, however, the trust simply is to permit and suffer A. to occupy the estate, or to receive the rents, the legal estate is executed in A. by the statute. And a trust to hold

1 Exeter v. Odiorne, 1 N. H. 232; Ashhurst v. Given, 5 W. & S. 323; Vaux v. Parke, 7 W. & S. 19; Nickell v. Handly, 10 Gratt. 336.

2 Posey v. Cook, 1 Hill (S. C.), 413; Morton v. Barrett, 22 Me. 261; Wood v. Mather, 38 Barb. 473; McCaw v. Galbraith, 7 Rich. L. 74; Williams v. McConico, 36 Ala. 22; Nelson v. Davis, 35 Ind. 474; McNish v. Guerard, 4 Strob. Eq. 66, was to the contrary upon the facts of that particular case.

8 Walter v. Walter, 48 Mo. 140.

4 Curtis v. Price, 12 Ves. 89; Doe v. Ewart, 7 Ad. & El. 636, 668; Ashhurst v. Given, 5 W. & S. 323; Vaux v. Parke, 7 W. & S. 19; Keene v. Deardon, 8 East, 248; Bagshaw v. Spencer, 1 Ves. 142; Chamberlain v. Thompson, 10 Conn. 244; Sanford v. Irby, 3 B. & Al. 654; Creaton v. Creaton, 3 Sm. & Gif. 386; Spence v. Spence, 12 C. B. (N. s.) 199; Smith v. Smith, 11 C. B. (n. s.) 121.

Chapman v. Blissett, Forr. 145; Naylor v. Arnitt, 1 R. & M. 501; Wykham v. Wykham, 18 Ves. 395.

Ibid.; Murthwaite v. Jenkinson, 2 B. & Cr. 257.

7 Right v. Smith, 12 East, 455; Wagstaff v. Smith, 9 Ves. 524; Gregory v. Henderson, 4 Taunt. 773; Warter v. Hutchinson, 5 Moore, 143; 1 B. & C. 721; Barker v. Greenwood, 4 M. & W. 429; Boughton v. Langley, 1 Eq. Ca. Ab. 383; 2 Salk. 679 (overruling Burchett v. Durdant, 2 Vent. 311); Doe v. Biggs, 2 Taunt. 109; Ramsay v. Marsh, 2 McCord, 252; Parks v. Parks, 9 Paige, 107; Witham v. Brooner, 63 Ill. 158.

for the use and benefit of, and to apply the rents to, the children of A., is executed in the children, notwithstanding the word apply is used.1 But where the trust is "to pay unto" or to permit and suffer a person to receive the rents, using both expressions, the construction will be governed by the intention of the donor; and in this view the position of the words in the sentence, and the priority of the words, and the consideration whether the instrument is a deed or will, will have a material bearing upon the decision. Mr. Jarman and Mr. Lewin suggest that the repugnancy would be obviated in such a case by construing the instrument to give an election or discretion to the trustees.3

§ 307. Although the direction may be for the trustees to permit and suffer another person to receive the rents, yet if any duty is imposed upon the trustees expressly or by implication, the legal estate will remain in them unaffected by the statute. As if the direction is to permit A. to receive the net rents, or the clear 5 rents, the trustees take the legal estate, the words net and clear implying that the trustees are to pay all charges, and pay over the balance. So if, in addition to a devise in trust to preserve contingent remainders, there is a direction to permit A. to receive the rents and profits; and so if trustees are to pay certain life annuities out of the rents, and subject to those annuities to permit and suffer certain persons to receive the rents and profits. So if the trustees are to exercise any control, as if there is a trust

1 Laurens v. Jenney, 1 Spears, 356.

2 Doe v. Biggs, 2 Taunt. 109; Pybus v. Smith, 3 Bro. Ch. 340.

3 1 Jarm. Pow. Dev. 222 n.; Lewin on Trusts, 174 (5th Lond. ed.).

4 Barker v. Greenwood, 4 M. & W. 421; Keene v. Deardon, 8 East, 248;

Rife v. Geyer, 59 Pa. St. 395.

5 White v. Parker, 1 Bing. N. C. 573.

Biscoe v. Perkins, 1 Ves. & B. 485, 489; Webster v. Cooper, 14 How. 499; Vanderheyden v. Crandall, 2 Denio, 9.

Naylor v. Arnitt, 1 R. & M. 501.

8 Exeter v. Odiorne, 1 N. H. 232.

to permit and suffer a woman to receive the rents, and that her receipts with the approbation of one of the trustees should be good.1

§ 308. A mere charge of debts and legacies on real estate will not vest the estate in the trustees, unless there is some direction to them to raise the money and pay them, or unless there is some other implication that they are to exercise an active trust for the purpose.2 Nor does the legal estate vest in the trustees where the charge of the debts and legacies upon the real estate is contingent upon the insufficiency of any other fund, for in that case the trustees do not take an immediate vested interest; but if the charge is made in aid of any other fund without contingency, the trustees will take immediately a legal estate. So if the trustees are to demise. the estate for a term, at rack-rent or otherwise, the term must come out of their interest, and the legal estate must be in them. If, however, the instrument confers by construction upon the trustees a mere power of leasing, a good legal term may be created by the exercise of the power and without the legal estate in them. So if a testator give his trustees a simple power of disposing of his estates, as that his executors or trustees, or other persons, shall sell or let or

1 Gregory v. Henderson, 4 Taunt. 772; Barker v. Greenwood, 4 M. & W. 430.

2 Doe v. Claridge, 6 Man. & Scott, 657; 1 Jarm. Pow. Dev. 224 n.; Kenrick v. Beauclerk, 3 B. & P. 178; Cadogan v. Ewart, 7 Ad. & El. 636, 668; Jones v. Saye & Sele, 8 Vin. 262; Creaton v. Creaton, 3 Sm. & Gif. 386; Collier v. McBean, 34 Beav. 426.

8 Goodtitle v. Knott, Coop. 43; Hawker v. Hawker, 3 B. & Al. 537; Gibson v. Montfort, 1 Ves. 485.

4 Murthwaite v. Jenkinson, 2 B. & Cr. 357; Wykham v. Wykham, 18 Ves. 395; and see Popham v. Bamfield, 1 Vern. 79.

5 Doe v. Willan, 2 B. & Al. 84; Doe v. Walbank, ib. 554; Osgood v. Franklin, 2 Johns. Ch. 20; Burr v. Sim, 1 Whart. 266; Riley v. Garnett, 3 De G. & Sm. 629; Brewster v. Striker, 2 Comst. 19; Doe v. Cafe, 7 Exch. 675.

• Doe v. Willan, 2 B. & Al. 81; Doe v. Simpson, 5 East, 162.

mortgage, or otherwise dispose of his estate, to pay his debts or legacies or annuities, or other charges, or where he directs his executors to raise money, no estate vests in the trustees, executors, or other persons, but it descends to the heir or the person to whom it is directed to go in the will, until it is wanted for the purposes named, and then it is divested only to the extent necessary for the purposes named. So where an estate was to remain in the hands of executors, for the use of the widow and children, until the youngest child should become twenty-one years old, the executors or trustees took no interest in the estate but a simple power.1 Such directions are simple powers of disposition, which may be executed without any legal title.2

§ 309. Where a testator gave his wife an annuity, and a certain sum to his children to be paid when they arrive at twenty-one years, and appointed three persons by name, "as trustees of inheritance for the execution thereof," it was held that the trustees took the legal estate. And if several trusts are created in the same instrument, some of which would be executed by the statute, and others would require the legal estate to remain in the trustees, they will take the legal estate; and this will be the case, though the trusts are limited

1 Burke v. Valentine, 52 Barb. 412.

2 Reeve v. Att'y-General, 2 Atk. 223; Hilton v. Kenworthey, 3 East, 553; Bateman v. Bateman, 1 Atk. 421; Fowler v. Jones, 1 Ch. Ca. 262; Lancaster v. Thornton, 2 Burr. 1027; Yates v. Compton, 2 P. Wms. 308; Fay v. Fay, 1 Cush. 94; Shelton v. Homer, 5 Met. 462; Bank of U. S. v. Beverly, 10 Peters, 532; 1 How. 134; Deering v. Adams, 37 Me. 264; Jackson v. Schauber, 7 Cow. 187; 2 Wend. 12; Burr v. Sim, 1 Whart. 266; Guyer v. Maynard, 6 Gill & J. 420; Dabney v. Manning, 3 Ohio, 321; Jameson v. Smith, 4 Bibb, 307; Hope v. Johnson, 2 Yerg. 123; Bradshaw v. Ellis, 2 Dev. & Bat. Eq. 20. In Pennsylvania, such powers conferred upon executors pass the estate by force of a statute. Miller v. Meetch, 8 Pa. St. 417; Chew v. Chew, 28 Pa. St. 17.

3 Trent v. Harding, 10 Ves. 495; 1 B. & P. N. C. 116; 7 East, 95; Re Hough, 4 De G. & Sm. 371; Re Turner, 2 De G., F. & J. 527.

to arise successively.1 In all cases where an estate is given to trustees to preserve contingent remainders, the statute does not execute the estate in the cestui que trust; and in every case where the words "to the use of the trustees" are used, the statute does not execute the estate, although it is to the use of the trustees in trust for another; for the statute only executes the first use.3

§ 310. If an estate be given to trustees upon a trust for a married woman "for her sole and separate use," and "her receipts alone to be sufficient discharges;" or if the trust be to "permit and suffer a feme covert to receive the rents to her separate use," the legal estate will vest in the trustees, and the statute will not execute it in the cestui que trust.* In all these cases the court will give this construction to the gift, if possible; for if the statute should execute the estate in the married woman, certain rights would arise to the husband which might defeat the intention of the donor. These are not the only words necessary to prevent the estate from vesting. Any words that show an intent to create an

5

1 Hawkins v. Luscombe, 2 Swans. 375, 391; Horton v. Horton, 7 T. R. 652; Blagrave v. Blagrave, 4 Exch. 570; Brown ». Whiteway, 8 Hare, 156; Stockbridge v. Stockbridge, 99 Mass. 244. But see Tucker v. Johnson, 16 Sim. 341; Leonard v. Diamond, 31 Md. 536.

2 Laurens v. Jenney, 1 Spears, 365; Co. Litt. 265 a, n. 2, 337 a, n. 2. 8 Ante, § 304; Keene v. Deardon, 8 East, 248; Whetstone v. St. Bury, 2 P. Wms. 146; Pr. Ch. 591; Sympson v. Turner, 1 Eq. Ca. Ab. 383; Hopkins v. Hopkins, 1 Atk. 586; Hawkins v. Luscombe, 3 Swans. 376, 388.

4 Horton v. Horton, 7 T. R. 652; Neville v. Saunders, 1 Vern. 415; Jones v. Saye & Sele, 1 Eq. Ca. Ab. 383; Doe v. Claridge, 6 C. B. 641; Hawkins v. Luscombe, 2 Swans. 391; South v. Alleyne, 5 Mod. 63, 101; Bush v. Allen, ib. 63; Robinson v. Grey, 9 East, 1; Ayer v. Ayer, 16 Pick. 330; Williman v. Holmes, 4 Rich. Eq. 475; NcNish v. Guerard, 4 Strob. Eq. 475; Franciscus v. Reigart, 4 Watts, 109; Escheator v. Smith, 4 McCord, 452; Bass v. Scott, 2 Leigh, 356; Rogers v. Ludlow, 3 Sandf. Ch. 104; Richardson v. Stodder, 100 Mass. 528.

5 Ware v. Richardson, 3 Md. 505; Moore v. Shultz, 13 Pa. St. 98. Ibid.; Rice v. Burnett, 1 Spear, Eq. 580.