Brassey v Chalmers
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1852 |
| Date | 01 January 1852 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 763
ROLLS COURT
S. C. on appeal, 4 De G. M. & G. 528; 43 E. R. 613. See In re Frith and Osborne, 1876, 3 Ch. D. 627.
[223] bsassey v. chalmers. August 5, Nov. 13, 1852. [H. C. on appeal, 4 De G. M. & G. 528 ; 43 E. R. 613. See In re Frith and Osbm*ne, 1876, 3 Ch. D. 627.] A power to trustees " to sell and dispose of " the testator's real estate and to give receipts, does not authorize a partition. Where a naked power is given to several, it cannot be exercised by the survivors ; but if a power be annexed to an office, any persons filling the office may execute it. Power " to my executors hereinafter mentioned, with the approbation of my trustees for the time being," to sell real estate, Held, by the Master of the Rolls, upon the context, not to authorize a sale by the survivor of the executors ; but the Lords Justices dissented from this decision. The first question arising on this special case was, whether the trustees of the will of William Fairhurst had authority to make a partition. William Fairhurst was entitled to one undivided sixth part of a freehold estate 764 BRASSEY V. CHALMERS 16 BEAV. 224. which had been purchased by three other persons in 1832, but as to such one-sixth in trust for the testator. The legal estate was, in 1833, conveyed by the vendor to the two survivors of the three, arid to the representatives of the third (Fairhurst being no party to the conveyance). They declared they held this one-sixth for Fairhurst. The deed gave powers of management and power of final division, with the consent of the majority. In 1839 William Fairhurst made his will, whereby he in the first place appointed George Law and Edward Tilston " to be his executors and trustees." He then devised and bequeathed his real and personal estate unto " his said trustees, their heirs, executors, administrators and assigns, according to the nature and tenure thereof, upon trust as to such part thereof as he held on mortgage or trust, or subject to any equity, to carry into effect the trusts thereof; and as to the residue of his said real and personal estate, to sell and dispose thereof at their discretion. And he declared that the purchasers of his said estate should not be bound to see to the application of the purchase-money, and that the receipts of his trustees, or the swvivor, should be in all cases sufficient." He then gave the proceeds of his [224] said estate to his three daughters, and their husbands and children. Tilston disclaimed, and Law alone proved the will. George Law (the devisee in trust and executor of William Fairhurst) afterwards concurred with the other parties in a partition of the estate, which was apportioned, and the apportioned parts conveyed in severally by a deed of the 28th of November 1845, to the several owners, and roads were dedicated for the accommodation of the several parties. The question which arose upon a sale of a portion of the estate allotted to another co-owner was, whether this partition was or was not valid. It was stated, as a fact, that Fairhnrst received one-sixth of the rents from the date of the purchase (1832) to his death (1839) ; but there was no evidence of his ever having acquiesced in the provisions of the deed of 1833. Mr. R. Palmer and Mr. C, Hall, for the Plaintiffs, the vendors. A good title can be made under the partition of 1845. The cases of Abel v. Heathcote (2 Ves. jun. 100 ; 4 Bro. G. C. 278); M'Queen v. Faryuhar (11 Ves. 467); and Attorney-General v. Hamilton (1 Madd. 214), have reference to the doctrine of uses and to legal powers, shifting, by their due execution, the legal estate. Here there is no such question; for by the conveyance, the legal estate in the apportioned shares was conveyed to the owners in severalty, and the purchaser will, by his conveyance, obtain the legal estate discharged of all equities. The only question is, [225] whether the trustees were not justified iii concurring in the partition, that is whether, upon a bill filed, the cestuis que trust could set it aside. The power of making a partition is incident to the estate of a tenant in common, even though he be a trustee. His co-tenants in common are entitled to have a partition, both at law and in equity, which they may at any time enforce. If therefore, upon a bill filed by another co-owner, the trustee would, by decree, be compelled to make a partition, he would equally be justified in performing that duty voluntarily, without putting the estate to the expense of a Chancery suit, which must, of necessity, end in the same result. It cannot be a breach of trust for a trustee to do an act voluntarily, which the Court will adversely direct him to perform. Lord Loughborough, in AM, v...
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