suffer the testator's widow to have, hold, use, occupy, possess, and enjoy the full, free, and uninterrupted possession and use of all interests of monies in the funds, and rents and profits arising from the testator's houses, for her natural life, if she should remain unmarried, and that her receipts for all rents, &c., with the approbation of any one of his trustees, should be good and valid, she providing for and educating properly the testator's children, and also paying two annuities thereby bequeathed to M. D. and M. I. of 201. for their lives, besides board and lodging to M. I., and that his children should be solely under their mother's direction until marriage, or properly provided for; it was held that the use was executed in the devisees in trust, upon the ground that the testator's having made the approbation of the trustees necessary to the widow's receipts, shewed that he did not intend to give her the legal estate a. And where lands were conveyed to trustees and their heirs, in trust that the trustees should, with the consent of A., sell the inheritance in fee, and apply the purchase-money to certain trusts mentioned in the deed, with a proviso, that the rents, issues, and profits, until the sale of the inheritance, should be received by such person, and for such uses, as they would have been, if the deed had not been made; it was held, notwithstanding the proviso, that the estate was executed in the trustees immediately b. So, where the testator devised to trustees and their heirs certain premises described in his will, upon trust to permit his daughter to enjoy the same and take the rents and profits during her life, exclusive of her husband, &c., and after devising several other lands to the trustees in like terms, he concluded thus, "And I hereby will that the said trustees and each of them shall, may, and do in every respect give receipts, pay money, and devise the aforesaid premises, or any part thereof, as shall be consistent with their duty and trust or otherwise:" held, that the trustees took a fee-simple in the land; for if leases made in pursuance of the direction contained in the 772. Gregory v. Henderson, 4 Taunt. b Keen d. Lord Byron v. Deardon, 8 East, 248. last clause, would take effect out of the estate of the trustees they must take the fee; and the language used seemed evidently intended to authorize any lease that would not be considered in a court of equity as a violation of the duty of a trustee a. Where the devise was, that the trustee should pay unto, or else, permit and suffer the testator's niece to receive the rents, the legal estate was held to be in the niece, because the words "to permit and suffer" came last; and in a will, the last words prevail, though in a deed the first b. But where a testator devised his freehold estates to trustees upon trust, as to three undivided fourth parts, "to pay to or permit and suffer" his wife and daughters to receive "the clear yearly rents and profits," and as to the other undivided fourth part, to pay to or permit and suffer" his son to receive "the clear yearly rents and profits;" and further directed that the shares of his wife and daughters should be for their sole and separate use, and that the trustees should let the estates upon certain conditions, and out of the rents should pay all taxes and for repairs; held, that the legal estate in the whole of the premises vested in the trustees". The court distinguished this from the preceding case, inasmuch as in this case the devise was to receive the clear yearly rents and profits, &c., and the trustees had duties imposed upon them, such as to repair, pay taxes, &c.; besides, the trustees were empowered to let the estates. So, where there was devise of freehold, copyhold, and leasehold estates, and all other the testator's real and personal estates unto trustees, their heirs, executors, administrators, and assigns, and to the heirs, executors, administrators, and assigns of the survivor, upon trust to pay and apply, or permit and suffer M. to take the rents and profits for her absolute use for life, and after her decease, upon trust for A., B., and C., and their lawful issue respectively, in tail general, with benefit of survivorship, to and amongst their issue respectively as tenants in common, a Doe d. Keen v. Walbank, 2 B. & Ad. 554. b Doe d. Leicester r. Biggs, 2 Taunt. 109. See also Doe d. Wood cock v. Barthrop, 5 Taunt. 382. • White v. Parker, 1 Hodges, 112. 1 Bing. N. C. 574. such issue not to have a vested interest till twenty-one, and the said trustees, after the death of A., B., and C., or either of them to apply the whole or any part of the rents and profits of the trust estates, not exceeding the presumptive share of each child, towards his or her maintenance during minority; held, that the trustees took an estate in fee in the freehold and copyholds, and an absolute interest in the leaseholds a. But where A. devised thus: "as to my real and personal estate, subject to my debts and funeral expenses, I give and devise the same as follows, viz., my real estate and all my personal estate unto F. M. and O. W. and their heirs, on the following trusts, viz., to the intent that they dispose of my personal estate in discharge of my debts, funeral expenses, and such legacies as I may direct; and as to my real estates, subject to my debts, and such charges as I may make, I give and devise the same to R. P. for life; held, that under this devise the legal estate in the realty vested in R. P. for his life, and that F. M. and O. W. took no estate therein; because the intention that the trustees should pay the debts was not apparent on the face of the will, and therefore there was no reason for giving the real estate to them b. When an estate is given to trustees and their heirs indefinitely, they will take the fee, if the purposes of the trust require that they should have the absolute property in them, or that they should take it for an indefinite period of time, unless a contrary intent is manifested on the face of the will. Therefore where a testator devised to trustees, their heirs, and assigns, all his lands, freehold, copyhold, and leasehold, and all his personal estate in trust to pay debts, &c., and then to apply the annual income to the use of two nieces, for their lives; and after their decease, there were devises in terms so ambiguous as to make it doubtful what equitable interest the devisees took; it was held, the trustees took an estate in fee, in the freeholds and copyholds, and an absolute interest in the leaseholds . a Cursham v. Newland, 1 Hodges, 278. 2 Bing. N. C. 64. ▷ Kenrick v. Beauclerk (Lord), 3 B. & P. 175. Houston v. Hughes, 6 B. & C. 403. Doe d. Tomkyns v. Willan, 2 When a surrender of their estate by the trustees will be pre sumed. Where C. devised lands to a feme covert for her life, and then, to the intent that she or her husband should not be entitled to receive the rents of the tenant, appointed trustees to receive them, pay them over to the wife, and attend to repairs; with power to distrain, lease, &c.; by a codicil C. revoked the devise in the will, the trustees named therein having died, and devised the lands to other trustees, to the same intents, and in the same manner in all respects, as if the new trustees had originally been named trustees in the will; held, that the new trustees took the legal estate in the land a. Devise for life, to the use of L. D. and J. E. and their heirs, in trust for R. E. C. for life, with a declaration that the estates were so limited, to the end that the legal estate so vested in L. D. and J. E. might support the contingent limitations; held, that the use was executed in L. D. and J. E., who held the legal estate, and not R. E. C.; and that all subsequent estates were holden in trust b. A lease from the cestui que trust cannot be set up by the trustee in any case without the aid of a court of equity. To obviate the inconveniences, says an able writer on this subject, which may at times arise when an ejectment is brought by a cestui que trust, the jury will in particular cases be permitted to presume, that a regular surrender has been made by the trustees of their estate; thereby clothing the cestui que trust with the legal title, and enabling him to recover in the action. Thus a surrender will be presumed if the purposes of the trust-estate have been satisfied; or if the beneficial occupation of the estate by the possessor induces a supposition, that a conveyance of the legal estate has been made to the party beneficially interested; or when the trust is a plain one, and a court of equity would compel the trustees to make a conveyance. But this presumption will not be made if the surrender be a breach of the trust; or against the owner of the B. & A. 84. Murthwaite v. Bar- 2 Tenny d. Gibbs v. Moody, 3 Harris r. Pugh, 4 Bing. 335. Baker t. Mellish, 10 Ves. 544. d Adams, 88. * Doe d. Hodson r. Staple, 2 T. R. 684. f Doe d. Syburn v. Slade, 4 T. R. 682. inheritance who is interested in upholding it; or where the title of the party, for whom the presumption is required, is a doubtful equity only, until a court of equity has first declared in favour of the equitable title; nor can the presumption be made by the court, where the merits of the case would have warranted such presumption at the trial, if it appear, upon a special verdict, or special case reserved for their opinion, that the trust estate though satisfied is still in point of fact outstanding in the trustees c. Joint tenant, coparcener, or tenant in common, may maintain Joint teejectment against his companion on an actual ouster d. nants, &c. The committee of a lunatic may bring ejectment in the name Lunatic. of the lunatic; for the committee is but as bailiff, and has no interest in the land e. An award under a submission to arbitration will give a per- Award. son a title to maintain this action; at least the defendant will be thereby precluded from disputing the title of the lessor of the plaintiff. As where the lessor of the plaintiff and the defendant in ejectment had before referred their right to the land to an arbitrator, who had awarded in favour of the lessor; held, that the award concluded the defendant from disputing the lessor's title in an action of ejectment. SECTION V. IN WHAT CASES AN ACTUAL ENTRY MUST BE MADE BEFORE EJECTMENT. We have seen that originally, in order to maintain ejectment, an actual entry on the lands in dispute was necessary; and that, subsequently, when the process began to be conducted under legal fictions, an actual entry was dispensed with 8. It is observable, however, that an actual entry is still required in order Doe d. Graham v. Scott, 11 East, 478. Keene d. Lord Byron v. Deardon, 8 East, 248. Goodtitle d. Jones v. Jones, 7 T. R. 43. See ante, 837. Drury v. Fitch, Hutt. 16. f Doe d. Morris r. Rosser, 3 East, Ante, 826. An actual entry must be made to avoid a fine with proclamations, and VOL. II. L |