The law as to the liability of a purchaser from trustees to see to the application of his purchase money cannot be considered as settled; the following remarks are made with hesitation, but under the belief that the general principles here attempted to be laid down, will, upon examination, be found to consist with the modern authorities (g).

It is submitted that, in every case, the question is simply one of intention on the part of the author of the trust; and that the trustees' power to give receipts depends solely upon the degree of confidence which he has, either expressly or impliedly, reposed in them.

This intention may, as before observed, be either expressed or implied; expressed, as where the will or trustdeed contains a clause which in terms empowers the trustees to give valid discharges for the purchase money; implied, as where the trusts are of such a nature as that a contrary intention cannot reasonably be attributed to the author of the trust.

Implied application of purchase-money by purchaser of equity of redemption in possession.

Discharge of incumbrances under the L. C.C. Act, 1845.

As to liability of purchaser from trustees to see to application of purchase-money.

Tested by intention of author of the trust, semble.

As either expressed or implied.

(e) Greenwood v. Taylor, 14 Sim. 505.

(f) See sect. 108, et seq.; and 115 et seq.

(g) See an article in the Jurist, vol. 11, part 2, p. 126, advocating conclusions different from those which are here contended for.

And if this intention be expressed, or can be implied, the trustees, upon a sale apparently in pursuance of the trust, have, under all circumstances, a power to give receipts. Of course, it may be shown that the sale is in fact a breach of trust; but then the objection is to the sale itself, and is not a question of application of purchase money.

And, on the other hand, where this intention is not expressed and cannot be implied, the mere fact that the parties beneficially interested at the time of sale are infants, or unascertained, or any other similar circumstance, will not enable the trustees to give a valid discharge; but the purchaser must see to the application of the money.

For instance, - (to consider first the question of implied intention, and what sufficiently indicates it,) - where the trust is for payment of debts generally, or for payment of debts generally and of legacies or annuities, the trustees take by implication a power to give discharges; for no purchaser, upon a sale during the existence of debts, could be expected to take an account of them (h): so, where the trust is for payment to a person or persons who may be unascertained, or under age, or subject to any other incapacity or inability to receive the purchase money, and a sale during the existence of such uncertainty, minority, incapacity, or inability, seems contemplated by the author of the trust; for, if the trustees cannot receive the money, there would, upon a sale under such circumstances, be no hand to receive it (i): so, where the money "is to be applied upon trusts which require time and discretion" (k), for no purchaser could be expected to involve himself therein: so, where the money is to be invested, it is sufficient if the purchaser see that this is done and that a declaration of trust is executed (l).

Matters posterior to the creation of the trust neither take awaynor confer a power to give good discharges or requiring time and discretion; or where money is to be re-invested.

What circumstances attending the trust confer such a power by implication trusts being for payment of debts; or in favour of unascertained or incompetent cestui que trust;

(h) Johnson v. Kennett, 3 Myl. & K. 624; Eland v. Eland, 4 M. & C.

420; Forbes v. Peacock, 1 Ph. 717; page v. Adam, 4 Beav. 269, 283.

So, executors can give good discharges for the purchase-money of chattels real, although specifically bequeathed (m); for an appointment of an executor, is, in effect, a bequest to him of the personalty in trust to sell for the payment of general debts: and the same rule seems to apply to cases where executors take, either expressly or by implication, a power to sell freeholds or copyholds, and the proceeds of sale are to be applied by them in a mixed fund with the residuary personal estate (n).

But, on the other hand, where the trusts are for payment of the purchase-money, or some definite part of it, to some ascertained person or persons, whose incapacity or inability to receive the same at the time of sale does not appear to be contemplated by the author of the trust, there is no sufficient indication of an intention that the trustees shall give good discharges; and the purchaser is therefore bound to see to the application of the whole or part (as the case may be) of the purchase-money.

For instance, where the trust (as respects the whole or some definite portion of the purchase-money) is to pay scheduled or specified debts (o), or legacies only (p), or to divide it between two or more adults (q), in all these and similar cases, as nothing seems to be contemplated which would impose upon a purchaser any greater hardship than that of paying the whole, or a definite part (as the case may be), of his purchase-money, to A. the beneficial, rather than to B. the legal owner of the property, no intention can be implied of relieving the purchaser from his prima facie obligation of seeing that his money reaches the hand substantially entitled to it.

So, executors can give good discharges.

In what cases no such power is implied.

Where trust is for definite payments to ascertained and competent parties.

(i) Sowarsby v. Lacy, 4 Madd. 142; Lavender v. Stanton, 6 Madd. 46; Balfour v. Wetland, 16 Ves. 151; Breedon v. Breedon, 1 Russ. & M. 413.

(k) Sug. 836; citing Doran v. Wiltshire, 3 Sw. 699.

(l) Sug. 838.