The construction would be the same if the trust was to sell the whole or a part; for no purchasers would be safe unlessthey could have the fee;1 and a trust to convey or to lease at discretion would be subject to the same rule. A fortiori, if an estate is limited to trustees and their heirs in trust to sell or mortgage or to lease at their discretion, or if they are to convey the property in fee, or divide it equally among certain persons; for to do any or all these acts requires a legal fee.3

§ 316. Where an estate is given to trustees in fee upon trusts that do not exhaust the whole estate, and a power is superadded which can only be exercised by the trustees conveying in fee-simple, the trustees will take the fee, and the estate conveyed by them will be sustained by the fee in them, and not by the mere power. Where it is possible that the trustees may be under the necessity of exercising a power over the fee, as by mortgage, a gift to them of the fee will not be cut down;5 and the rule is that all the trusts v. Hutchinson, 5 Moore, 143; 1 B. & C. 121; Watson v. Pearson, 2 Exch. 594; Chamberlain v. Thompson, 10 Conn. 244; Doe v. Howland, 7 Cow. 277; Jackson v. Robins, 16 Johns. 537; Spessard v. Rohrer, 9 Gill, 262. 1 Bagshaw v. Spencer, 1 Ves. 144; Kirkland v. Cox, 94 Ill. 402.

2 Booth v. Field, 2 B. & Ad. 556; Keen v. Walbank, ib. 554; Brewster v. Striker, 2 Comst. 19; Deering v. Adams, 37 Me. 265. But see Doe v. Cafe, 7 Exch. 675.

Bagshaw v. Spencer, 1 Ves. 142; Keane v. Deardon, 8 East, 242; Cadogan v. Ewart, 7 Ad. & El. 636; Tompkins v. Willan, 2 B. & A. 84; Keen v. Walbank, ib. 354; Garth v. Baldwin, 2 Ves. 646; Booth v. Field, 2 B. & Ad. 564; Rees v. Williams, 2 M. & W. 749; Shelly v. Eldin, 4 Ad. & El. 582; Creaton v. Creaton, 2 Sm. & Gif. 386; Collier v. Walters, L. R. 17 Eq. 265.

4 Fenwick v. Potts, 8 De G., M. & G. 506; Poad v. Watson, 37 Eng. L. & Eq. 112; Watkins v. Frederick, 11 H. L. Cas. 354; Haddelsey v. Adams, 22 Beav. 266. A power of appointment superadded to a life-estate will not enlarge it into a fee; and so a power of appointment added to an estate of inheritance will not cut down the fee. Yarnell's App. 70 Pa. St. 342;

Burleigh v. Clough, 52 N. H. 267.

5 Fenwick v. Potts, 8 De G., M. & G. 506; Horton v. Horton, 7 T. R. 652; Brown v. Whiteway, 8 Hare, 156.

which trustees must execute are to be executed out of the estate given them.1 Lord Talbot said that it was wholly a matter of intention whether the trustee should take a fee or not; hence, in other cases, it has been said that if no intention appeared upon the face of the will that the trustees were to take anything beyond what was necessary for the execution of the trust, the estate, though limited to them and their heirs, would be cut down to the limit of the trust. So trustees may take only a chattel interest in real estate, although limited to them and their heirs, as where they are to hold it in trust only for a short time to pay debts and legacies, and convey it to the cestui que trust when he comes of age or at a certain time; and this construction will be much stronger if the fee is not limited to them.5 The same construction as to the estate of trustees will prevail where the limitation is to them and their heirs, to their use and behoof for ever, whether it is contained in a deed or will. Where a gift was made to one in trust for his wife for life, and to her heirs for ever, subject to her husband's curtesy, the trustee took an estate for the life of his wife only, and at her death the trust ceased."

1 Watson v. Pearson, 2 Exch. 593.

2 Chapman v. Blissett, Forr. Ca. t. Talb. 145; Hawkins v. Luscombe, 2 Swans. 375; Curtis v. Price, 12 Ves. 89; Collier v. McBean, L. R. 1 Ch. 80. & Doe v. Hicks, 7 T. R. 433; Nash v. Coates, 3 B. & A. 839; Boteler v. Allington, 1 Bro. Ch. 72, is criticised in 7 T. R. 433, by Lord Kenyon; Webster v. Cooper, 14 How. 499; Beaumont v. Salisbury, 19 Beav. 198.

4 Goodtitle v. Whitby, 1 Burr. 228; Warter v. Hutchinson, 1 B. & Cr. 721; Stanley v. Stanley, 16 Ves. 491; Badder v. Harris, 2 Dowl. & Ry. 76; Wheedon v. Lea, 3 T. R. 41; Pratt v. Timins, 1 B. & Ald. 530; Brune v. Martin, 8 B. & Cr. 497; Tucker v. Johnson, 16 Sim. 341; Glover v. Monckton, 3 Bing. 13; Doe v. Davies, 1 Q. B. 430; Player v. Nicholls, 1 B. & Cr. 336; Cadogan v. Ewart, 7 Ad. & E. 136, 667.

Pearce v. Savage, 45 Me. 90; Boraston's Case, 3 Co. 19; Player v. Nicholls, 1 B. & Cr. 336.

Hawkins v. Luscombe, 2 Swans. 375; Curtis v. Price, 12 Ves. 89; Venables v. Morris, 7 T. R. 342; Watkins v. Specht, 7 Cold. 585. But see Cooper v. Kynock, L. R. 8 Ch. 402.

7 Noble v. Andrews, 37 Conn. 346.

§ 317. Where a testator gave all his real and personal estate to trustees, "their executors, administrators, and assigns," in trust to pay several annuities, sums, and legacies, on the deficiency of the personal estates out of the rents, issues, and profits arising from the real estate, and gave the residue over, Lord Hardwicke held that if the annual reception of the rents and profits would satisfy the purposes of the trust, the trustees would take only a chattel interest in the real estate; but, as the land must be sold for the payment of the legacies, the trustees took the fee.1 The court, however, is always reluctant to enlarge an estate in trustees beyond the terms of the gift; and it will not be done unless it is necessary for the execution of the trust.2 Where it is plain that the trustees are to pay all charges, debts, legacies, annuities, or other moneys out of the rents and profits of the estate, and no anticipation of the income is necessary or contemplated for that purpose, they will take a chattel interest, or a term for years necessary for the purpose, and not the legal inheritance; and if the testator use an inartificial word, as that the trustees are to lend the estate, they will not take a fee. A trust to preserve contingent remainders, without limitation to heirs, will not be enlarged; for the trust does not require an estate of inheritance.5

§ 318. If, however, the subject-matter of the gift to trustees is personal estate, the whole legal interest will vest in

1 Gibson v. Montfort, 1 Ves. 485; Amb. 93; Woodgate v. Flint, 44 N. Y. 21 n.

2 Heardson v. Williamson, 1 Keen, 33; White v. Simpson, 5 East, 162; Wykham v. Wykham, 3 Taunt. 316; 11 East, 458; 18 Ves. 395, 416; Ackland v. Lutley, 9 Ad. & El. 879; Doe v. Claridge, 6 C. B. 641.

8 Cordall's Case, Cro. Eliz. 315; Carter v. Bernadiston, 1 P. Wms. 589; Hitchens v. Hitchens, 2 Vern. 404; Wykham v. Wykham, 18 Ves. 416; Heardson v. Williamson, 1 Keen, 33; Co. Litt. 42 a.

Payne v. Sale, 2 Dev. & Bat. Eq. 455.

Thong v. Bedford, 1 Bro. Ch. 14; Webster v. Cooper, 14 How. 499; Beaumont v. Salisbury, 19 Beav. 198; Co. Litt. 290 b.; Butl. n. viii.

them without words of limitation. They may generally dispose of personal estate absolutely, being compelled to account for it.1

§ 319. In England, a distinction is kept up between limitations to trustees in wills and deeds. Thus it is said that in wills there is more room for construction to ascertain and carry into effect the intention of testators, and that in deeds the rules of property are carried into effect with more strictness. So it is said, that if in a deed an estate is given to a trustee and his heirs, there is no power to abridge the estate on the ground that the purposes of the trust do not require a fee in the trustees; and that, on the other hand, when an estate is given by deed to a trustee in trust without words of inheritance, there is no authority to enlarge the estate in the trustee because the purposes of the trust seem to require a larger estate. There is a very respectable amount of authority, even in England, that an estate given to trustees and their heirs in trust, by a deed, may be restricted to an estate for the life of another, where the purposes of the trust can all be answered by such an estate in the trustee. In the cases sustaining the power to abridge the legal operation of the words of inheritance in a deed, there were some further lim

1 Dinsmore v. Biggert, 9 Barr, 135; Nicoll v. Walworth, 4 Denio, 385; Chamberlain v. Thompson, 10 Conn. 244; Combry v. McMichael, 19 Ala. 751; Elton v. Shepherd, 1 Bro. Ch. 531; 2 Jarm. Pow. Dev. 631; Doe v. Willan, 2 B. & Ald. 84; Smith v. Thompson, 2 Swan, 386; Foster v. Coe, 4 Lansing, 59; Fellows v. Heermans, ib. 230; and Aiken v. Smith, 1 Sneed, 304, held that when personalty was limited to trustees, their heirs and executors, in trust for a married woman for life, and after her death to be equally divided among her children, or to be conveyed to her children, the trustee took an estate for her life only, and that at her death the trust ceased. These cases, however, are not consistent with principle or authority, and probably would not be followed.

2 Curtis v. Price, 12 Ves. 89; Venables v. Morris, 7 T. R. 342, 438; Doe . Hicks, ib. 437; Brune v. Martyn, 8 B. & Cr. 497; Beaumont v. Salisbury, 19 Beav. (198, where the authorities were commented on); Lewis v. Rees, 3 K. & J. 132; Cooper v. Kynock, L. R. 8 Ch. 403.

itations of the estate, either to the trustees or to third persons, inconsistent with the idea of a fee in the trustees. The authorities, however, greatly preponderate, that courts cannot look to the equitable interests given or created by a deed, in order to determine whether the trustee under it takes a fee or not, if there are plain words of inheritance in it. Lord Eldon said, that it appeared to him very difficult to apply the doctrine to a deed, and he refused thus to cut down an estate. While there is this conflict of authority upon the point, whether an estate given in fee by deed to trustees can be abridged to the extent of the trust, there is said to be no authority in England that an estate given by a deed to trustees without words of inheritance can be enlarged to suit the purposes of the trust; although there is one expression by Lord Hardwicke that such enlargement is within the power of the court when the circumstances require it.*

§ 320. In the United States, the distinction between deeds and wills, in respect to the trustees' estate, has not been kept up; and the general rule is, that, whether words of inheritance in the trustee are or are not in the deed, the trustee will take an estate adequate to the execution of the trust, and no more nor less.5 Courts will abridge the estate where words of inheritance are used, if the execution of the trust does not

1 Ibid.

2 Wykham v. Wykham, 18 Ves. 395; Colomore v. Tyndall, 2 Y. & J. 605; Co. Litt. 20 b.; Butl. n. viii; Dinsmore v. Biggert, 9 Barr, 123; Lewis v. Rees, 3 K. & J. 132, where the authorities are reviewed by Wood, V. C.

Pottow v. Fricker, 6 Exch. 570; Hill on Trustees, 251. 4 Villiers v. Villiers, 2 Atk. 72.

5 King v. Parker, 9 Cush. 71; Stearns v. Parker, 10 Met. 32; Gould v. Lamb, 11 Met. 84; Cleveland v. Hallett, 6 Cush. 403; Att'y-Gen. v. Federal Street Meeting House, 3 Gray, 1; Wright v. Delafield, 23 Barb. 498; Fisher v. Fields, 10 Johns. 105; Welch v. Allen, 21 Wend. 147; Rutledge v. Smith, 1 Busb. Eq. 283; Liptrot v. Holmes, 1 Kelly (Ga.), 390; Cooper v. Kynock, L. R. 8 Ch. 402.