The first observation to be made with regard to sales by trustees is that trustees holding the legal estate in lands under a simple trust for the benefit of some other person or persons have no power to sell without the consent of all the persons who are in equity beneficially entitled to the lands (s). In such cases the trustee is but an instrument to execute the will of cestui-que-trust. The latter may sell as he will, and the trustee is bound to convey at his bidding (t). But the trustee cannot bind any beneficiary by contract with or conveyance to any purchaser who has notice of the trust: although conveyance of the trust property by the trustee to a bona fide purchaser for value without notice of the trust may deprive cestui-que-trust of his equitable rights in the laud (u). To enable trustees to sell lands without the concurrence of their cestui-que-trusts an express power to that effect must be inserted in the instrument creating the trust, or the lands must be vested in them upon a special trust for sale. When such powers of or trusts for sale are created they must be carried out in all respects according to the intention of their creator; they must not, for example, be exercised before the time at which it has been declared that they shall arise (x). Thus, when lands are vested in trustees on trusts for one for life, and after his death on trust for sale or on trust for others with power of sale, the trust for or power of sale cannot be validly exercised in the lifetime of the tenant for life - not even with his consent and concurrence (y), nor by order of the Court (z). But the intention of the author of a trust or power will be collected from the whole of the instrument creating the same, and may in some case be ascertained at the sacrifice of the literal interpretation of every expression therein contained. Thus, where lands were devised to one for life, and after her death to trustees to sell as soon as conveniently might be after the testator's death, it was held that the will in effect created a trust for sale immediately exercisable with the consent of the tenant fur life (a). So a devise on trust to sell with all convenient speed and within five years after the testator's death has been held to enable the trustees to make a good title to a purchaser after the five years had expired, the testator's expressions being considered to be merely directory and not imperative (b). A trust for sale with all convenient speed nevertheless allows the trustees to exercise a reasonable discretion as to the time of sale (c), and they may postpone the sale if such a course be beneficial to their cestui-que-trusts (d). But trustees for immediate sale, who postpone sale indefinitely without good reason, will be accountable for any loss thereby caused to the trust estate (c).

Sales by trustees.

(q) Jones v. Williams, 24 Beav.

47

(r) Re Alms Corn Charity, 1901, 2 Ch. 750.

(s) Lee v. Soames, 36 W. R. 884; of. Re Baker and Selmon's Contract, 1907, 1 Ch. 238, where the ceatuique-trusts had in writing authorised the trustee to sell, and were bound at law by the contract as undisclosed principals; see above, p. 160, and n. (u); below, Chap. XIX. Sec. 2.

(t) See above, p. 167.

Trusts for or powers of sale.

Mills v. Dugmore.

(u)Wms Real Prop. 186, 187

21st ed.

(x)See Johnstone v. Baber, 8 Beav. 233; Sug. Pow. 266, 8th ed.; Farwell on Powers, 147, 2nd ed.

(y) Mosley v. Hide, 17 Q. B. 91; Want v. Stallibrass, L. R. 8 Ex. 175; Re Bryant and Bar-ningham't Contract, 44 Ch. D. 218; Re Head's Trustees and Mac-donald, 45 Ch. D. 310. A sale may of course be made in such cases with the concurrence of all the beneficiaries, if sui juris, or the tenant for life may sell under the Settled Land Acts; see above, pp. 1G8, 180.

(z) Blacklow v. laws, 2 Hare, 40; Johnstone v. Baber, 8 Beav. 233: Gosling v. Carter, 1 Coll. 644, 662; Carlyon v. Truscott, L. R. 20 Eq. 348.

(a) Mills v. Dugmore, 30 Beav. 104.

W

When lands are settled on several persons for successive life estates, with power for each tenant for life when in possession to charge the estate with a jointure or portions, it appears that, as such charges are a burden on the remainderman, the time for exercising the power cannot be accelerated by the surrender to any tenant for life of a life estate prior to his own; he mast wait, before he can well exercise the power, until the time has arrived when he would have become entitled in possession according to the limitations of the settlement. But where lands are so settled with a power of sale exercisable with the consent of the tenant for life in possession, the power, being merely administrative and only altering the state of investment of the trust property and not diminishing the remainderman's interest, may be exercised with the consent of a tenant for life in actual possession, although so entitled through the surrender of a prior life estate (f). Where lands are vested in trustees on trust for one for life and after his death on trust for sale or on trust for others with power of sale, so that the settlor's intention is that the trust or power shall not arise until such death (g), the time for exercising the same cannot be accelerated by a surrender of the life interest (h).

Acceleration of time for exercising a power or trust.

(b) Pearce v. Gardner, 10 Hare, 287; see also Cuff v. Hall, 1 Jur. N. S. 972, where a will conferred a power to postpone sales, but not for a longer period than ten years from the testator's death.

(c) Buxton v. Buxton, 1 My. & Cr. 80, 93; Marsden v. Kent, 5 Ch. D. 598. For the purpose of determining the respective rights of tenant for life and remainderman, one year is considered to be the time within which such a trust might reasonably have been exercised; Parry v. Warrington, 6 Madd. 155: Tickers v. Scott, 3 My. & K. 500.

(d) Morris v. Morris, 4 Jur. N. S. 802.