DISCLAIMER.

trustees. Similarly he cannot afterwards disclaim his office, when he has once accepted it, merely by refusing to act. To enable him to retire his cestuis que trustent must acquiesce in his discharge from the office of trustee, or a new trustee must be appointed in his place; or where there are more than two trustees, he can retire with the consent of his co-trustees and of the person, if any authorised to appoint new trustees under the Trustee Act, 1893 (ante, p. 362).

If one of several trustees disclaims, the trust estate vests in the trustees who accept, in the same manner as if the person disclaiming had not been appointed a trustee (Smith v. Wheeler, 1 Vent. 128, 2 Keb. 774; Townson v. Tickell, 3 B. & Ald. 31; Begbie v. Crook, 2 Bing. N. C. 70; Adams v. Taunton, 5 Mad. 435). When a valid disclaimer is made, it relates back, and therefore it makes no difference that the disclaimer is not executed till after the death of the survivor of the trustees who accept, in which case the effect of the disclaimer is to vest the legal estate in the heir of such survivor, or, if he died after 1881, in his personal representatives (a). And so a disclaimer may be effectual though executed after an agreement has been entered into by the accepting trustees for a sale of the trust property (Peppercorn v. Wayman, 5 De G. & Sm. 230).

If all the trustees disclaim, or a sole trustee disclaims, the property remains in the grantor or is in the heir of the testator.

A trustee cannot disclaim a part only of the trusts (Urch v. Walker, 3 My. & C. 702), or the trusts of part only of the property (Re Lord & Fullerton, (1896) 1 Ch. 228). But two of three devisees in trust are not, by accepting the trust, debarred from disclaiming the legal estate in copyholds in order to avoid the larger fine which would be payable on admittance if all three had to be admitted tenants (Wellesley v. Withers, 4 El. & Bl. 750).

485

Effect of disclaimer by trustee.

It would seem that a trustee who declines to act cannot Deed of disclaimer. (a) See as to copyholds, ante, p. 176.

By trustees of strict settlement.

be compelled to execute a disclaimer; but the usual course in cases of importance is for him to execute a deed poll, whereby "it is witnessed that he the said A. B. doth hereby absolutely renounce and disclaim" the trust property and all the trusts and powers reposed in him. Some practitioners employ the past as well as the present tense, saying, "Hath renounced and disclaimed and by these presents doth renounce and disclaim," with the intention of showing that the trustee never accepted the trusts; but it is better to insert a recital to that effect.

The disclaimer appears to operate merely as a convenient way of solemnly asserting the intentions of the person disclaiming. Care must be taken not to insert a conveyance by the person disclaiming; for, as this would show that he had accepted the trust estate, it is clear that he could not effectually disclaim it. (Crewe v. Dicken, 4 Ves. 96; Nicloson v. Wordsworth, 2 Swanst. 365.)

It is perhaps not obvious that the trustees of a strict settlement (in the form in use before 1883), who take no estate in the land, can, by renouncing their office, disable themselves from executing the powers of sale, &c., which are powers simply collateral, and as such could not be extinguished by the act of the donee before 1881 (b). If, however, we look at the intentions of the parties as expressed in the settlement, we find on the construction of the whole settlement that the powers of sale, &c., are to be exercised by the persons who, for the time being, fill the office of trustees; and it follows that, on the renunciation ab initio of his office by a person named as trustee, he cannot execute any power annexed to that office. has even been held that, where land is devised to a trustee, conduct which amounts to a disclaimer of the office (Re Birchall, 50 Ch. D. 437), or renunciation of probate and not acting as trustee, even without any express disclaimer of the office (Re Gordon, 6 Ch. D. 531), operates as a disclaimer of the legal estate.

(b) Co. Lit. 342 b, n. 1. II. ; C. A. 1881, s. 52, post, p. 493.

It

DISCLAIMER-RENUNCIATION.

trustee.

487 It appears to be very doubtful whether, after the death By heir, of a trustee who has neither acted nor disclaimed, his heir &c., of or personal representative can disclaim. If the estate ever was in the person appointed trustee, it must on his death devolve on his heir or personal representative; and it seems to have been assumed in Goodson v. Ellisson (3 Russ. 583) that the heir must show some act of renunciation by his ancestor to discharge himself from the liability to execute a conveyance at the request of his cestui que

trust.

executor.

An executor who has not acted can renounce by a formal Renunciaproceeding in the Probate Division. Formerly, if there tion by were several executors, and one renounced or did not prove, and the rest proved, he might afterwards have proved; so that if an executor, who had proved, died, leaving another, who had renounced or had not proved, surviving, the representation did not belong to the executor of the deceased executor. (Cottle v. Aldrich, 4 M. & S. 175.) The rule is now changed by the Court of Probate Acts, 1857 and 1858, 20 & 21 Vict. c. 77, s. 79, and 21 & 22 Vict. c. 95, s. 16, by the combined effect of which, where any person renounces probate or dies without having proved, or is cited to take probate and does not appear, "the rights of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his effects shall and may, without further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor. See Crawford v. Forshaw, (1891) 2 Ch. 261.

Where the same person is appointed executor and trustee and proves the will, he cannot disclaim the trusteeship of personalty (Mucklow v. Fuller, Jac. 198), though he can, if the testator dies before 1898, disclaim the trusteeship of the realty; (Wellesley v. Withers, 4 El. & Bl. 750; Bence v. Gilpin, L. R. 3 Ex. 76, at p. 82): but probably, if his testator dies after 1897, he cannot disclaim the trusteeship of the freeholds (though he may disclaim the trusteeship of

By executor of executor.

By married woman.

Disclaimer

of power.

Appointment of

new trustee by disclaiming trustee.

the copyholds), as the freeholds vest in him virtute officii; L. T. A., 1897, s. 1.

It is now settled that an executor who proves a will cannot renounce the executorship of any person of whom his testator was a proving executor, on the principle that a man cannot accept part of the duties of an executor, and refuse the rest. (Brooke v. Haymes, L. R. 6 Eq. 25; Re Griffin, Ir. Rep. 2 Eq. 320; Re Delacour, Ir. Rep. 9 Eq. 86.)

"to

The Fines and Recoveries Act, 1898 (3 & 4 Will. 4, c. 74), which (s. 77, ante, p. 137) enables a married woman dispose of" lands of any nature by deed acknowledged, does not appear to enable her to disclaim them; but by the Real Property Act, 1845 (8 & 9 Vict. c. 106, s. 7), a married woman can, after the 31st of October, 1845, by deed acknowledged, disclaim any estate or interest in hereditaments of any tenure. The necessity for acknowledgment does not appear to have been done away with by the M. W. P. A. 1882.

The C. A. 1882, s. 6, provides that a person to whom any power, whether coupled with an interest or not, is given by an instrument coming into operation before or after the commencement of the Act, may by deed disclaim the power, and that after disclaimer the power may be exercised by the other person or persons in whom the power was vested.

It appears doubtful whether a married woman can disclaim a power by virtue of this section where it is not coupled with an interest (c).

Where an express power of appointing new trustees is inserted, it is generally made exercisable by a trustee who refuses to act. (Ex parte Hadley, 5 De G. & S. 67.) Where this is the case, and the disclaimer expressly excepts the power vested in the disclaiming trustee of appointing new trustees, or where there is no express power, so that a

(c) See W. B. & C. pp. 112, 267; but see contra, Hood and Challis on Convg. Acts, p. 176.

RELEASES.

new trustee can be appointed under the statutory powers conferred by the Trustee Act, 1893, the disclaiming trustee can exercise the power of appointing new trustees; but if he does, he must not convey the trust property, for this would be repugnant to the disclaimer (d). The property must be conveyed to the new trustees by the person who would have so conveyed if the disclaiming trustee had not been named in the settlement or will as a grantee or devisee.

PART II.-RELEASES.

489

release

demanded.

It is the usual practice on the final adjustment of When accounts between a trustee or executor and his cestuis que can be trustent for them to execute a release to him under seal. Disputes sometimes arise as to whether the trustee or executor is, strictly speaking, entitled to anything more than a simple receipt for the moneys handed over by him. The doctrine is laid down in King v. Mullins, 1 Drew. 311, by Kindersley, V.C., in the words following:

"I am of opinion that, in the case of a declared trust, where the trust is apparent on the face of a deed, the fund clear, the trust clearly defined, and the trustee is paying either the income or the capital of the fund; if he is paying it in strict accordance with the trusts, he has no right to require a release under seal. It is true that in the common case of executors, when the executorship is being wound up, it is the practice to give executors a release. An executor has a right to be clearly discharged, and not to be left in a position in which he may be exposed to further litigation. Therefore he fairly says, unless you give me a discharge on the face of it protecting me, I cannot safely hand over the fund; and therefore it is usual to give a release; but such a claim on the part of a trustee would, in strictness, be improper, if he is paying in accordance with the letter of the In such a case he would have no right to a release." It appears to follow that, in the common case of the trust moneys having been resettled, the trustees or executors (d) Crewe v. Dicken, 4 Ves. 97; Urch v. Walker, 3 My. & C. 702.

trust.