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of the act the testator shall have charged his real estate, or any specific portion thereof, with the payment of his debts, or with the payment of any legacy or other specific sum of money, and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debt, legacy or sum of money out of such estate, it shall be lawful for the devisee or devisees in trust, notwithstanding any trusts actually declared by the testator, to raise such debts, legacy or money as aforesaid by a sale and absolute disposition by public auction or private contract of the said hereditaments or any part thereof, or by a mortgage of the same, or partly in one mode and partly in the other, and any deed or deeds of mortgage so executed may reserve such rate of interest, and fix such period or periods of repayment, as the person or persons executing the same shall think proper (k).
The powers conferred by the last section are to extend to all and every person or persons in whom the estate devised shall for the time being be vested by survivorship, descent or devise, or to any person or persons who may be appointed under any power in the will or by the Court of Chancery to succeed to the trusteeship vested in such devisee or devisees as aforesaid (I).
If any testator who shall have created such a charge as is described in the 14th section shall not have devised the hereditaments charged as aforesaid in such terms as
(*) 22 & 23 Vict. c. 35, s. 14. Ib. a. 15.
that his whole estate and interest therein shall become vested in any trustee or trustees, the executor or executors for the time being named in such will (if any) shall have the same or the like power of raising the said moneys as is hereinbefore vested in the devisee or devisees in trust of the said hereditaments, and such power shall devolve to and become vested in the person or persons (if any) in whom the executorship shall for the time being be vested, but any sale or mortgage under the act shall operate only on the estate and interest whether legal or equitable of the testator, and shall not render it unnecessary to get in any outstanding legal estate (m).
Purchasers or mortgagees shall not be bound to inquire whether the powers conferred by sects. 14, 15 and 16 of the act, or either of them, shall have been duly and correctly exercised by the person or persons acting in virtue thereof (»).
The provisions contained in sects. 14,15 and 16 shall not in any way prejudice or affect any sale or mortgage already made or hereafter to be made under or in pursuance of any will coming into operation before the passing of the act, but the validity of any such sale or mortgage shall be ascertained and determined in all respects as if the act had not been passed, and the said several sections shall not extend to a devise to any person or persons in fee or in tail, or for the testator's whole estate and interest charged with debts or legacies, nor
(m) 22 & 23 Vict. c. 35, s. 16. («) lb. s. 17.
shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do (o).
The bond fide payment to, and the receipt of any person to whom any purchase or mortgage money shall be payable upon any express or implied trust, shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security (p).
Powers conferred on Ecclesiastical Corporations.
The acts of 21 & 22 Vict. c. 57, and 24 & 25 Vict, c 105, confer powers on ecclesiastical corporations, with the approval of the ecclesiastical commissioners, upon obtaining the consents required by the act to sell, exchange, partition, and enfranchise in manner authorized by the acts.
Powers conferred by Lord Cranworth's Act.
Lord Oranworth's Act (q), which was passed on the 28th August, 1860, recites, that it was expedient that
(o) lb. s. 18. (?) 23 & 24 Vict. c. 145.
\p) lb. s. 23.
certain powers and provisions which it was then usual to insert in settlements, mortgages, wills and other instruments should be made incident to the estates of the persons interested, so as to dispense with the necessity of inserting same in terms in every such instrument.
The first part of the act, which has been repealed by the Settled Land Act, 1882 (r), as from the 31st December, 1882, relates to trustees for sale and trustees of renewable leaseholds, and enacts! that, where by will, deed or other instrument of settlement it is expressly declared that trustees or other persons therein named or indicated shall have a power of sale over any hereditaments, it shall be lawful for such trustees or other persons, whether such hereditaments be vested in them or not, to sell either together or in lots, and either by auction or private contract, and either at one time or at several times, and (in case the power shall expressly authorize an exchange) to exchange any hereditaments which for the time being shall be subject to the uses or trusts aforesaid, for any hereditaments in England or Wales or in Ireland (as the case may be), and upon such exchange to give or receive any money for equality of exchange (s).
It shall be lawful for the person making any such sale or exchange to insert any such special or other stipulations, either as to title or evidence of title or otherwise, in any conditions of sale or contract for sale,
or exchange as they shall think fit, and also to buy in the hereditaments or any part thereof at any sale by auction, and to rescind or vary any contract for sale or exchange, and to resell without being responsible for any loss which may be occasioned thereby; and no purchaser under any such sale shall be bound to inquire whether the person making the same may or may not have in contemplation any particular re-investment of the purchase-money in the purchase of any other hereditaments or otherwise (t), and for the purpose of completing any such sale or exchange the persons empowered to sell or exchange shall have power to convey or dispose of the hereditaments in question either by -way of revocation and appointment of the use or otherwise (w).
The money so received upon any such sale, or for equality of exchange as aforesaid, shall be laid out in the manner indicated in that behalf in the will, deed or instrument containing the power of sale or exchange, or if no such indication be therein contained as to all or any part of such money, then the same shall with all convenient speed be laid out in the purchase of other hereditaments of freehold, leasehold, copyhold or customary tenure in manner as in the act particularly mentioned; provided that no leasehold tenement should be purchased under the powers thereinbefore contained which is held for a less period than sixty years (x).