case cook versus DUCKENFIELD may SC post where trustee have a power of sell  real estate and turn it into money or keep it in land at their option it will  be subject to the same trust as the personal estate be apply to whether sell  or keep as real estate the question in this cause arise on the will of Mr  Thomas cotton of York who in the first place say I give my whole real estate  to my son and the heir of his body and in case of his die a minor or without  issue then I give all my land tenement c in and about Tollerton to the  defendant and four other by name for such charitable use and purpose as I  shall direct by codicil or otherwise and as to his personal estate the same  trustee be to discharge a sum leave to a hospital in and some pecuniary legacy  out of it and then direct they to call in and dispose of the residue of his  personal estate as they or the survivor or survivor of they shall think fit  and to apply the interest and produce or so much as they shall judge necessary  towards the maintenance of his son till his age of twentyone and atkins upon  his attain such age or marriage to pay and deliver up the same to his hand but  if he shall happen to die before such age or marriage the testator say I then  will that the residue of my personal estate be dispose of among widow and  orphan of dissenter and to my poor relation in such proportion as they shall  think fit and make the trustee executor the codicil whereas I have by my last  will to which this be a codicil give and devise to my trustee therein name and  their heir my land c in Tollerton in case of my son die a minor or without  issue for such use and purpose atkins er p as I shall direct by a codicil or  otherwise now I do hereby pursuant to that clause in my will order and direct  in that case that the say land and tenement shall at the discretion of my say  trustee be sell and dispose of or keep in their hand or possession and that  the purchase money arise thereby or the rend and profit thereof shall be apply  and distribute to and among such person or to and for such use or purpose and  in such manner as I shall by any write direct and appoint and for want of such  direction and appointment then to such person or such use or purpose and in  such manner and proportion as they the say trustee or the major part of they  or in case of death the survivor or survivor of they or the heir of such  survivor shall judge fit and convenient I do further but yet only in case of  my son die a minor or without issue give and devise by this codicil unto my  abovesaid trustee my dwellinghouse in York with the appurtenance for to sell  or keep the same in their hand and apply and dispose of the purchasemoney or  of the rend and profit arise from the last mention premise to and for the same  use intent and purpose as all the other land and tenement above name that be  to say such as I shall by any write or memorandum direct or for want thereof  as they the say trustee shall judge fit and convenient the testator son be  dead under age and without issue the testator have leave no direction by write  or memorandum as to the application of the land at Tollerton or his  dwellinghouse at York the trustee insist upon the beneficial interest in both  and the heir at law of the testator claim they as a result trust for the  trustee be cite Floyd versus spillet atk S c before Lord Talbot and for the  heir at law Hobart versus the countess of Suffolk vern atkins Lord chancellor  the bill must be amend and the attorney general in behalf of the charity to  widow and orphan of dissenter and to testator poor relation must be make a  party but however I will break the case at present which be attend with some  difficulty the general question be whether there be a result trust for the  heir at law second whether defendant be to b e consider as trustee throughout  three whether they take any beneficial interest for themselves fourthly if not  whether they be trustee for the heir at law or for any other person it appear  to I a very strong case from the intention of the testator that they shall be  trustee throughout both as to the real and personal estate I have look into  the trustee answer and they be not so sanguine as to insist upon a beneficial  interest but only say the heir at law have none and that upon the contingency  of the son die a minor and without issue the interest devolve upon themselves  it will be extreme difficult to give the trustee a beneficial interest the  devise to his son be a immediate devise and what follow to the trustee be by  way of remainder in case the son die without issue it be admit that if the  testator have give no direction by his codicil they will have be trustee for  the heir at law under the will see before the devise of the personal estate  and of the residue of the personal the general question be whether the will  and codicil must be take together nothing can be plain than that the testator  have treat they as trustee throughout both as to the real and personal estate  and have only give they a power of appointment ei atkins it have be insist for  the trustee that as it be a general power of dispose it amount to a devise of  the beneficial interest to they it will be strain the power very much to  construe it as give they a beneficial interest wherever a power be give  whoever take the estate take from the grantor by who that power be create and  not from the power itself atk they be to appoint to such use as they or the  major part of they c shall judge fit and convenient if as have be say they may  appoint to themselves will not the major part be ready to say we will exclude  you or you because we will make our share large atkins er p suppose they be to  dispose of it in proportion may not three out of the five say we will exclude  the other two in all case of power where it be not execute it result to a heir  at law if execute it be out of the heir at law it hang be insist for the  trustee that the beneficial interest may be give they by way of power as well  as by express word but then this be a power executable eternal and as long as  the world endure because it be give to the heir of the survivor Mr attorney  general for the trustee put this case suppose five person shall agree among  themselves that such a sum of money or estate be dispose of by they as they  shall appoint this will be a good agreement and if they make no disposition a  result trust for themselves but this appear to I quite a different case from a  power of appointment over a three person property now I think there be a great  colour to say some charity be intend the testator have both real and personal  estate these trustee be likewise trustee of his personal estate and executor  atkins the question will be whether upon the codicil the real estate may not  be connect with the direction the will have give as to the personal estate  several case have be cite to show that a devise of real estate to be sell will  make it personal estate but this be where the real estate be give to a devisee  of personal for the payment of debt and legacy and the rule of law be that it  be asset in his hand vide mallabar versus mallabar Cas in Eq in Lord Talbot  time vide hill v bishop of London ante atk and the case there cite in the case  cite by the solicitor general of Floyd versus spillet there be this far  circumstance that they be very near relation a wife and child and in all such  case inference of bounty have be draw and consequent rebuts any equity the  heir at law may have of a result trust though it be very true a bare intention  will not exclude a heir at law nay negative word will not but here the charity  which be in this case be of another consideration the testator have give a  power to the trustee to sell this land suppose they have sell it and turn it  into money it absolute become personal estate and so v ice line will it not  then if sell have fall under the same direction with the personal estate it be  true it be not absolute and imperative direct to be sell but the question will  come to this as the testator have give the trustee a power of sell and turn it  into money or keep it in land at their option if it will not be subject to the  same trust as the personal estate be apply to whither sell or keep as real  estate I be of opinion it will fall under the same direction because he have  give it under a trust and to the same trustee this be the strong by reason of  the absurdity that he shall give it to trustee who can keep it themselves  though his particular friend and yet may give it away to stranger if they  think fit and it will be very extraordinary that their keep it in one form or  both shall change the nature of the devise and intention of the testator this  make it a considerable question for the charity and his poor relation and  therefore the cause must stand over and the attorney general be make a party  in behalf of the charity atkins February Lord chancellor there can be no doubt  at all but it be the intention of the testator to give it from the heir the  first general question be whether here be any result trust second if there be  not whether the defendant be to take the estate for their own benefit this can  be no result trust for as have be true say a man may dispose of his estate by  a actual disposition himself or by empower other person to dispose of it which  equal disinherit the heir at law b the will in case of his son die a minor or  without issue the testator give all his land tenement c to the defendant and  four other by name for such use and purpose as he shall direct by codicil or  otherwise the codicil take up the consideration of his son die a minor or  without issue atkins er p and then say I do hereby pursuant to that clause in  my will order and direct in that case the say land and tenement shall at the  discretion of my say trustee be sell and dispose of or keep in their hand and  possession if the testator have stop here the heir at law indeed will not have  be disinherit but it follow and that the purchase money arise thereby or the  rend and profit thereof shall be apply and distribute to and among such person  or to and for such use or purpose and in such manner as I shall by any write  direct and appoint and for want of such direction and appointment then to such  person or person or such use and purpose as they the say trustee or the major  part of they or in case of death the survivor or survivor of they or the heir  of such survivor shall judge fit and convenient this come within the latter  part of the division of a man power over any branch of his estate by direct  another person to dispose of it atkins it be say to be so vague and uncertain  that it be void in itself but why shall it be so can a testator do it as to a  single person to a and such use as he shall appoint be good before the statute  of use and will for when a shall appoint the beneficiary and use he be in by  the feoff from the beginning and not by the appointee ex part Caswall ante atk  hall v carter atk Southby v Stonehouse Ves as the survivor or survivor of they  c it be true if you consider this as a beneficial interest for the trustee it  may be liable to absurdity but when you consider this as disinherit the heir  you must try whether it can be carry proper into execution to any use or  purpose exclusive of the heir if a testator say I will my heir shall sell the  land and do not mention for what purpose it be in the breast of the heir at  law whether he will sell it or no and he may choose to keep it and who can  compel he to do otherwise but when the testator appoint a executor to sell his  office show that it be intend to be turn into personal asset without leave any  result trust in the heir with respect to the general rule as to result trust  and the exception thereto see hill v bishop of London atk and the case refer  to in the note here they be trustee throughout for charity so that it be  determine for what it shall be sell and if there be no word express any  particular purpose it must be spell out by circumstance and I be of opinion on  the circumstance of this case that the heir at law be plain disinherit and  there be no result trust as to the second point it be as plain that the  defendant have no beneficial interest for several part of the will and codicil  spear there be trustee vide read v Snell atk Sherrard v Lord Harborough Amb  such as indemnifying they against any cost or charge they may be put to and  several other passage in the will and codicil confirm it give it to five  person who he name trustee to such purpose as they or the major part of they  shall judge fit show plain he intend no benefit to they but a authority only  by appoint a quorum out of the trustee it be almost nonsense to say that he do  not intend to give it for charity because vest it in trustee to give to such  person as they think fit will be put it in their power to sell the estate and  sink the money in their own pocket atkins therefore this natural lead I to  look out for other particular passage in the will to such charitable use and  purpose in case his son die a minor or without issue so that the whole turn  upon the same event the son die a minor and without issue the expression in  the codicil upon such person and to and for such use be common word in devise  to charity the defendant too be the very person who be the trustee for charity  in the residue of the testator personal estate and likewise for another real  estate of pound per annum all the objection arise from want of object or from  certainty of time be easy obviate upon construe the testator intention to be  for charity because if the trustee have misapply or abuse their power they may  have be call to a account at the relation of any person in the name of the  attorney general for the benefit of the charity the defendant be direct to lie  a scheme before the master for apply the atkins er p testator estate to such  charitable use and purpose as shall answer the intention of the testator  Baylis v the attorney general ante de Costa v de Pas Amb attorney general v  clarke Amb attorney general v Herrick Amb white v white bro Charles Rep  Moggridge v Thackwell bro Charles Rep seem to be case of the same nature and  also for the application and distribution of the money that shall be join in  out of the grow rend and profit or out of the money that shall arise from any  future sale and in this scheme the defendant be to have a particular regard to  the poor relation of the testator and their circumstance RegLib a fol