F. L Liiidley THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW F. E. Lindle^ A SELECTION OF CASES ON THE LAW OF TRUSTS WITH NOTES AND CITATIONS Second Edition BY JAMES BARR AMES BU88EY PROFESSOR OF LAW IX HARVARD UNIVERSITY Vol. I. CAMBRIDGE: HARVARD LAW REVIEW I'UBLISIIING ASSOCIATION. 1893. Copyright^ 189S. By Jau£s Barb Ames. a^3 (arte BitoetiSibe pwj^ PRINTED BY H. O. HOUGHTON 6 CO. CAMBRIDGE, MASS. U.S. A. CONTENTS. CHAPTER I. PAOS The Nature and Requisites of a Trust 1 Section I. A Trust distinguished from a Debt 1 Section II. A Trust distinguished from a Bailment 52 Section III. A Trust distinguished from an Equitable Charge 55 Section IV. A Trust of a Chose in Action distinguished from an Assignment . . . , 59 Section V. A Trust distinguished from an Executorship 70 Section VI, The Language necessary to the Creation of a Trust 77 Section VII. Consideration 107 Section VIII. The Statute of Frauds 17G Section IX. The Statute of Wills 180 Section X. The Subject-lVIatter of Trust 191 Section XI. The Cestui que Trust 195 Section XII. The Trustee 215 Section XIII, Notice to the Cestui que Trust 232 CL75«1 iv CONTEXTS. CHAPTER II. The Nature of the Cestui quk Trust's Interest 235 Section I. His Cliilm is purely Equitable, except when Account would lie at Common Law 235 Section II. Cestui que Trust is a Claimant against the Trustee — not the Owner of the Trust-res 244 (a) His Claim is enforceable regardless of the Situs of the Trustrres . 244 (b) Cestui que Trust cannot proceed directly against a Stranger either at Law or in Equity 251 (c) A Cestui que Trust of an Obligation cannot discharge the Obligor . 2G6 (d) When Cestui que Trust's Interest in the Trust-res is forfeited by the Trustee's Laches 271 (e) Cestui que Trust cannot vote as Owner of the Res 275 (f) The Burdens incident to Ownership fall upon the Trustee, and not upon the Cestui que Trust 278 CHAPTER III. The Transfer of Trust Property 282 Section I. By Act of the Party 282 (a) By Act of the Trustee 282 (b) By Act of the Cestui que Trust 322 Section II. By Death 345 (a) Death of the Trustee 345 (b) Death of the Cestui que Trust 351 Section III. By Forfeiture 367 Section TV. By Disseisin 370 Section V. By Marriage 374 (a) Marriage of the Trustee 374 [b^] Marriage of the Cestui que Trust — Dower 375 [b^] Marriage of the Cestui que Trust — Curtesy 379 [b] Marriage of the Cestui que Trust — Rights of Husband during Cov- erture 385 Section VI. By Bankruptcy 392 (a) Bankruptcy of the Trustee 392 (b) Bankruptcy of the Cestui que Trust 394 CONTENTS. V Section VII. By Act of Creditors o .... 406 (a) Creditors of Trustee 406 (b) Creditors of Cestui que Trust 433 CHAPTER IV. Extinguishment of a Trust 445 CHAPTER V. The Duties of a Trustee 449 Section I. To convey the Trust-res as tbe Cestui que Trust directs 449 Section II. The Duty to put Cestui que Trust in Possession of the Trust-res .... 465 Section III. The Duty to give Information in regard to the Trust-res 468 Section IV. The Duty as to Investment of Trust Funds 471 Section V. Tlie Duty of Custody of the Trust-res 502 Section VI. The Duty not to delegate the Trust to Another 508 TABLE OF CASES Adams v. Adams Adams, Broadway Bank v. Aheame v. Aherne Aheme, Ahearne v. Aldam, Busk v. Allen V. Impett Anonymous, Bellewe, 11 Br. Ab. Dalison, 38 RoUe's Ab. 3Sw. (Y. B. 12 & 13 Ed. m.) (Y. B. 5 Ed. IV.) (Y. B. .5 Ed. IV.) (Y. B. 8 Ed. IV.) (Y. B. 4 Ed. IV.) (Y. B. 6 Hen. IV.) (Y. B. 8 Hen. VI.) (Y. B. 15 Hen. VII.) (Y. B. 14 Hen. VIII.) Appleton V. Rowley ArgTiello, In re Arnould v. Grinstead Ashley I'. Denton Att'y-Gen. v. Hickman Hix V. V. Lauderfield Pawlett V. Baddeley v. Baddeley Bailey i;. New England Co. Baily, Stephens v. Ball, Watta v. Barker, In re Barker's Trusts, In re Bamed's Company, In re Bamett, Fortescuo v. Bartlett v. Dimond Batchelor, .Juniper v. Bates, Carstairs v. Bates V. Johnson Beard i'. Beard Belchier, Ex parte Belknap v. Belknap Bindon, Swf;f!tiip])le v. Bingh.-irn, .Miller v. Bingle, Miiasctt u. Bishop of Durham v. Morice Blake, l)'Arcy v. Bops, Kintr V. Bolder, Wildinp v. Bottomloy V. Fairfax Brandon v. Uohinson Breton's Estate, In re Breton v. Woolven 227 Broad, Ex parte 19 397 Broadway Bank v. Adams 397 104 Brown v. Burdett 204 104 Brown, Carey v. 260 460 Brown v. Gellatly 489 36 Browne, Trinity College V. 278 2(M Browne's Will, Re 4.58 109 Brunt, Dodkin v. 226 266 Buck, Turner v. 450 122 Bulbeck v. Silvester 49 508 Bullock, In re 401 52 Burdett, Brown v. 204 351 Burgess v. Wheate 356 352 Burmester, Eyre v. 306 345 Bush, Jevon v. 217 240 1 2 Busk V. Aldam 460 Cadogan, Sloane v. 135 251 Callard v. C^ard 117 283 Campbell, Stumors v. 21 381 Campbell's Trust, In re 220 482 Cann v. Cann 481 488 Caplen's Estate, In re 49 52 Carey v. Brown 260 224 Carpenter v. Carpenter 322 348 Carstairs v. Bates 12 216 Castle, Wallace v. 25 367 Cathorpe, Ex parte 484 Cave V. Cave 311 170 Cave V. Mackenzie 808 256 Chion, Ex parte 392 347 Churchward, Hodge V. 55 379 Claflin V. Claflin 455 275 Clark V. Clark 232 223 Clark's Caae 4 42 Clark, Steele v. 44 136 Cleveland, Schwab w. 280 37 Clockmaker's Co., Sonley v. 225 189 Coleman, In re 339 12 Collier, Walker v. 3 292 Colnian v. Sarrel 1,33 165 Colvile, Grey v. 433 516 Commercial Bank j;. Hamilton Bank 15 842 Commonwealth v. Foster 23 379 Compton's Case 370 389 Conybeare's Settlement, Ex parte 222 201 Cooke V. Crawford 509 195 Cooper- Dean r\ Steven* 205 870 Copcland, Lowson v. 493 216 Com wall, I'oultor v. 7 221 Crawford, Cooke v. 509 375 Creditors of Cox *J8 394 171 Daccombe, King v. 353 171 Dale V. SoUet 7 VIU TABLE OF CASES. Danser v. Warwick Daiivers, Weston v. D'Arvy v. Blake Dai'toii, Moore v. Heaii. In re Dearie v. lliUl Debenhani, Lane v. De Bervoir, Harris y. Dehew. Saundei-s v. Delbridge, Kicharda v. Denton, Ashley v. Dickinson, App. Di«ji;les. In re Dillon. Kirkby v. Diinoud, Bartlett u. Doctor and Student Dodds V. Hills Dodkin v. Brunt Doe V. Pegge Doily V. Sherratt Donaldson t>. Donaldson Downes, Wasborne v. Drake v. Price Dring, Holmes v. Duncan, Ross v. Dundas v. Diitens Dutens, Dundas v. Eames, Lambe v. East India Co., Wych v, Eastman, Giddings v. Edmondson, Gregory v. Edwards v. Jones Ellison, Goodson y. Elsley, Foster v. Elwin V. Williams Eustace, Kildare v. Eyre v. Burmester Fairfax, Bottomley v. Fairland v. Percy Farley v. Turner Farrington r. Lee Feleh v. Hoop>er Field V. Field Finch, Worcester v. Flower v. !NL'irten Fogg V. Middleton Fortescue r. Bamett Foster, Commonwealth o. Foster v. Elsley Frampton v. Gerrard Gardner v. Rowe Gaugain, Whitworth v. Gaunt, Spf^ight v. Gellatly, Brown v. Gerrard, Frampton v. Gibson v. Winter Giddings v. Eastman Giles V. Perkins Glyn, Harding v. Good V. Lickorish Goodright v. Wells Goodson V. ElUssoQ Gordon, Key v. Gott V. Nairne Graham v. King « 186 Graves v. Graves 102 840 Gregory v. Edmondson 95 370 Grey v. Colvile 433 39 Grinstead, Arnould v. 488 205 Grover v. Grover 159 328 513 Hall, Dearie v. 828 4 Hanier v. Sidway 83 289 Hamilton Bank, Commercial Bank v. 15 130 Hammond v. Messenger 59 52 Harding v. Glyn 78 478 Harford, Worrall v. 415 95 Harland v. Trigg 79 439 Harris v. De Bervoir 4 37 Hattatt's Trusts, Be 221 107 Hawkins, Wynne v. 81 297 Head v. Teynham 460 226 Henderson-Roe v. Hitchina 72 252 Henry v. Strong 389 511 Hickman, Att'y-Gen. v. 224 146 Hills, Dodds V. 297 322 Hinze, Shoemaker v. 29 74 Hitchins, Henderson-Roe V. 72 471 Hix V. Att'y-Gen. 848 212 Hodge V. Churchward 55 443 Holland v. Holland 236 443 Holmes v. Dring 471 Hooper, Felch v. 246 85 Howlett, Lee v. 829 271 317 Impett V. Allen 36 95 Ireland, Mortimer v. 508 140 451 Jacquet v. Jacquet 56 191 Jenkyns. M'Fadden v. 47 386 Jevon V. Bush 217 244 Jevon, Noel v. 374 306 Johnson, Bates v. 292 Johnson, In re 426 375 Johnson. Shearman v. 426 423 Jones, Edwards v. 140 40 Jones V. Lewis 502 6 Jones, Lloyd's Co. v. 272 246 Jones, Scott v. 70 505 370 125 Juniper v. Batchelor 189 Kansas Co., Morgan v. 258 65 Keighley, Malim v. 88 136 Keterich, Paschall v. 2 23 Key V. Gordon 6 191 Kildare v. Eustace 244 121 King's Att'y v. Sands 354 King V. Boys 216 179 King V. Daccombe 353 408 King, Graham v. 515 >518 King V. Mildmay 348 489 King V. Talbot 472 121 Kirkby v. Dillon 439 267 . 317 Lambe v. Eames 85 9 Lane v. Debenham 513 78 Lange, Third Bank v. 318 401 Latrobe v. Mayor 278 445 Lauderfield, Att'y-Gen. v. 216 451 Lee, Farrington v. 6 6 Lee V. Howlett 329 202 Lee V. Wilson 468 515 Lewis, Jones v. 502 TABLE OF CASES. IX Lickorish, Good r. Lincoln r. Parr Lister, Tidd i\ Lloyd, Roberts v, Lloyd's Co. I". Jones Lookabill, Stith v. Lord, Milroy v. Lowson V. Copeland Mackenzie, Cave v. Mackersy v. Ranisays Malim v. Keigliley Malleson. Morgan v. Marten, Flower v. Massey's Case Mayor, Latrobe v. M'Fadden v- Jenkyns McMurray, Pittsburgh Bank v. Megod's Case Mellor, Stead v. Messenger, Hammond v, Middleton. Fogg v, Middleton v. Spicer Mildm.ay, King v. Miller v. Bingham Milroy v. Lord Moore v. Darton Morgan v. Kansas Co. Morgan v. Malleson Morice v. Bishop of Durham Morley v. Morley Mortimer v. Ireland Moulton, Page v. Mussett V. B ingle Naime, Gott v. Neck, In re Nevil. Saunders v. New England Co., Bailey v. Newman v Newman Noel V. Jevon Nortkynncr Percy, F.'iiiland v. Perkins. '!il<'S v. PhfljiK. Nortfin V. Phillirick'H .Settlement, Re Phillips V. Phillips Pilling, In re Pimbt?"H Case Pittaburgh Bank i;. McMurray 401 Porter, Wetmore v. 262 5 Poidter V. Cornwall 7 465 Pratt V. Tuttle 82 61 Price, Drake v. 74 272 Price V. Price 166 406 Priest V. Uppleby 487 149 Pye, Ex parte 123 493 Queen v. Painter 265 308 Queen, Shropshire Co. v. 300 13 Quin, Reichenbach v. 209 83 129 Ramsays, Makersy v. 13 125 Ray, Norton v. 239 42 Reichenbach v. Quin 209 278 Rex V. Williams 352 47 Richards v. Delbridge 130 30 Richardson v. Richardson 156 235 Roberts v. Lloyd 61 91 Robinson, Brandon v. 394 59 Robinson v. Robinson 495 65 Rogers, Weakly v. 241 304 Ross V. Duncan 212 348 Rowe, Gardner v. 179 389 Rowley, Appleton v. 881 149 Ruby, Still v. 219 39 258 Salmon, In re 487 129 Same's Case 121 195 Sands, King's Att'y v. 354 502 Sarrel, Colman v. 133 508 Saunders v. Dehew 289 116 Saunders v. Nevil 449 201 Saunders v. Vautier 454 Scholey, Scott v. 441 202 Schribb, Palmer v. 77 19 Schwab I'. Cleveland 280 449 Scott V. Jones 70 250 Scott V. Sclioley 441 335 Sharington v. Strotton 109 374 Shearman v. Johnson 420 420 Sherratt, Doily v. 511 239 Shoemaker v. Hinze 29 108 Shropshire Co. v. Queen 300 285 Sidway, Ilanier v. 33 282 Silvester, Bulbeck v. 49 Skynner, Pegge v. 218 504 Shinning v. Style 104 462 Sloane v. Cadogan 135 Smith, In re 72 110 Sol let, Dale v. 7 205 Sonley v. Clockmakers' Co. 225 77 Speight i\ Giiunt 518 26(i Spicer, Middleton v. 364 5 Statute, 29 Car. II. Chap. 3 ; § 7, 8, 9 17(i 510 Sf;,tuto, 29 Car. II. Chap. 8 ; § 10, 11 437 2 Steiid V. Mellor 91 307 Steele V. Clark 44 252 Stephens v. B.'iily 347 21H Stevens, Coo])er-Dean v. 20.-) 42.'] Still ('. Kuby 219 9 Stithr. Lo<.kabill 4(K> 420 Strickland v. Symona 418 459 Strong, llenrj- i-. 339 331 Strotton, Slijiringt/)n t;. 109 504 Student, Doctor and 107 215 Stnmore v. Campbell 21 30 Style, Slanning v. 164 TABLE OF CASES. Swale V. Swale Sweetapple v. Bindon Symons, Strickland v. Talbot, Kinp i-. Taylor v. Vale Tenant, Parker v. Teynham, Head v. Third Bank v. Lanjje Thoraassen v. Van Vyngaarden Tidd I'. Lister Tierney v. Wood Tillott, In re Trigg, Harland v. Trinity College v. Browne Turner's Case Turner v. Buck Turner, Farley v. Turner, Watts v, Tuttle, Pratt v. Uppleby, Priest v. Vale, Taylor v. Van Vyngaarden, Thomasaen v. Vautier, Saunders v. 512 370 418 472 117 266 450 318 68 465 182 468 79 278 385 450 46 453 32 487 117 68 454 Wadsworth, In re Walker v. Collier Wallace i;. Castle Wallis, Onslow v. Warwick, Danser v. Wasborne v. Downes Watta V. Ball Watts V. Turner Weakly v. Rogers Wells, Goodright v. Weston V. Danvers Wetmore v. Porter Wheate, Burgess v. Whitworth v. Gaugain Wilding V. Bolder Williams, Elwin v, Williams, Rex v. Willis, Onslow v. Wilson, Lee v. Winter, Gibson v. Witham's Case Wood, Tierney v. Woolven, Breton v. Worcester v. Finch Worrall v. Harford Wych V. East India Co. Wynne v. Hawkins 511 3 25 462 186 332 379 453 241 445 346 262 356 408 221 386 352 462 468 267 385 182 171 370 415 271 81 CASES ON TRUSTS. CHAPTER I. THE NATUEE AND EEQUISITES OF A TRUST. SECTION I. A Trust distinguished from a Debt. ANONYMOUS. In the Common Pleas, Hilary Term, 1405. [Reported in Year Book 6 Henry IV., folio 7, placitum 33. l] Debt against a parson and counted by Tillesley that he and his pre- decessors, etc., had been seised of an annual rfent of forty shillings issuing out of a manor, which came into the hands of the King, and he by letters patent leased the manor to one who delivered the forty shillings to the defendant to pay to us, and so action accrued to us. Hankford, J. You will maintain your action because the farmer of the King delivered the forty shillings to the defendant to deliver to you, and I think this cannot maintain your action, for if one delivers certain monej's to you to pay to me, I shall have a writ of Account against you,^ and not a writ of Debt, because there is no contract be- tween you, and so in this case. Tilledey. I think I may elect to have Account or Debt. TiiiRNiNG, C. J. If one took the rent from your tenants would you have Debt? Tillesley. Not there, but I should have Trespass. TiiruMN'r;, C. J. [?] I suppose tliat if he took it by your command, you would not have Debt, but Account, for there is no contract between you, and so here.' ' The caae is somewhat abridf^C'l. — En. 2 32 Efl. III., Fitz. Ah. Acct. lOfi ; Y. B. 1 Hen. V. 1 1-21 ; Y. B. 36 Hen. VI. 9, 10-5 ; Y. B. 18 Ed. IV. 2.1-.'-.; Y. B. 1 E.l. V. 2-2; Kol.sort v. Andrews (l.'JMT). Cm. El. 82, 2 Leon. 118, pi. lf,o. 3 Leon. 14'J, jd. l!t'>, s. c. ; Huntley v. Gritlith ( l.'j!)0),r;old. 159, per Altham, B. ; Harrington v. Deano (1612), Hob. 36, Brownl. 26, 8. c. ; Baynton v. Cheek (16.'')2), Style, 3.53 Arrord. — Ei>. « Y. B. 41 Ed. III. (1367), 10-5. Candiih: "If I deliver certain money to you to deliver to John, he shall have a writ of Account, because the property is in him straight- 1 PASCIIALL V. KETERICIL [CHAP. L ANONYMOUS. In the Common Pleas, Michaelmas Term, 1429. [Reported in Year Book 8 Henry VI., folio 10, placitum 25.] Debt upon arrears of account. The plaintiff was examined by the statute, and it was found that tlie account was because the defendant had bought certain goods of the plaintiff, and had accounted for the money before the auditors. And because this does not lie in Account, the plaintiff was ordered to amend his count or the defendant should be dismissed. And so he did, and declared upon a contract.^ PASCHALL V. KETERICH. In the King's Bench, Michaelmas Term, 1557. [Reported in Dyer, 1516, placitum 5.2] Note, By the opinion of all the Justices of each bench, where a man devised by his last will and testament in writing that his executors should sell his land, and that his daughter should have a portion of the money for her advancement, and so of other things a sum certain, and died, and his executors made sale, and would not pay the legacies, wherefore the daughter sued execution in the Court Christian, prohibi- tion well lies in this case, because it is not a legacy testamentary, but out of land, by reason of the last will, in the performance whereof tlie Court Christian had no concern ; but the party may well have an action of account at common law.^ See the contrary opinion, T. 9 Eliz., Dy. 264, b. way upon your receipt by my hand, and he cannot have an action of Debt." Bellewe, Acct. 7 (1379). Belknap, C J. : " If I am debtor to Sir Henry Persay in .£20 and I bail the money to J. Holt to pay the money to him, if J. Holt does not pay the money, he shall have an action of Account against him, and no other action." Anon., Keilw. 77a, 776 Accord. A bill in equity may be brought at the present day by him to whose use the money was delivered. Hosmer ?;. .Jewett, 6 Ben. 208. — Ed. 1 Y. B. 49 Ed. III. 7-11 Accord.— 'Ed. 2 Benl. 60, 8. c — Ed. 8 See to the same effect, Shep. Touch. (7th ed.), 458 ; Dens v. Dens, 1 Bulst. 153, per Yelverton, J.; Jenk. Cent. Cas. 215, pi. 56; semhte Account lies in this case for the daughters at common law, against the executors, for the money is received by them to the use of the said daughters." In more recent times Account has given way to Indebitatus Assumpsit for money had and received by the devisee to the use of the beneficiary (Nicholson v. Sherman, 1 Sid. 45. 46: Buttrick v. King, 7 Met. 20; SECT, I.] WALKER V. COLLIER. WALKER V. COLLIER. In the Common Pleas, Hilary Term, 1595. [Reported in Croke Elizabeth, 379.1] Trespass. L'pon a special verdict the case was, The land was devised to one for life, remainder to the plaintiff, j)aying five and forty shillings to John S., and it was found that the land was worth three pounds per annum. The teuaut for life died ; and, "Whether the plaintiff had thereby a fee, or for life? was the question. And all THE CoLTiT resolved, without any great argument, that he should have it in fee, especially when the money is not appointed to be annually paid. And Anderson said, that this word " paying" made his estate conditional : but the not finding whether it was paid is not material ; no more is the finding of the value. Wherefore it was adjudged ut supra for the plaintiff.^ Rogers i;. Daniell, 8 AIL 343 ; Lj-nde v. Davenport, 57 Vt. 597) ; or to a bill iu equity; Edwards v. Graves, Hob. 265. The proceeds of the sale are not leg;al. but equitable assets . Germy's Case, 1 Leon. 87, 2 Leon. 119 ; Barker v. May, 9 B. & C. 489, 4 M. & Ry. 386 ; Perkins v. Lewis, 41 Ala. 649 ; Harland v. Person"( Ala. 1891), 9 S. R. 379 ; Williams v. Nichol, 47 Ark. 254 ; Olmstead v. Brush, 27 Conn. 530 ; Gregg v. Currier, 36 N. H. 200 ; Conklin v. Egerton, 21 Wend. 430, 25 Wend. 224 ; Ross v. Barclay, 18 Pa. 179. 1 6 Rep. 16 a, 8. c. — En. '■* Doe V. Richards, 3 T. R. 356 ; Doe v. Holmes, 8 T. R. 1 ; Goodtitle v. Maddern, 4 East, 496; Funk v. Eggleston, 92 111. 515, 534; Lindsay v. McCormick, 2 A. K. Marsh. 229, 232; Wait v. Bclding, 24 Pick. 129, 139; Jackson v. Bull, 10 Johns. 148 (semhle) ; Jack.son v. Martin, 18 .Johns. 31 ; Spraker v. Vau Alstyne, 18 Wend. 200; King V. Cole, 6 R. I. 584. / In Doe '•. Holmes, supra. Lord Kenyon said, p. 2 : " In cases of this kind the ques- tion has always been whether the charge is to be paid only out of the rents and profits of the estate ? or, whether it is to be paid by the devisee at all events ? In the former case the •. Mill, 47 Ark. .301 ; Lord i\ Lord, 22 Conn. 595 ; Olmstead r. Brush, 27 Conn. 5.30; Porter v. .Jackson, 95 Ind. 210; Felch v. Taylor, 13 Pick. 133; Adams V. Adams, 14 All. 65; Prentiro v. Brimhall, 123 Ma.os. 291, 293; Smith v. .Jewett, 40 N. H. .5.30. .535; Gridley i;. Gridlcy, 24 N. Y. 1.30; Lodcr v. Hatfield, 71 N. Y. 92; Brown r. Kn.app, 79 N. Y. 136 ; Yearly v. Long, 40 Oh. St. 27 ; Etter v. Grcenawalt, 98 Pa. 422; Jordan v. Donahue. 12 R. I. 199 {srmlile). In Zinimer v. Sennott, 134 111. 505, there was said to be a claim against the devisee, but no equitable charge upon tb» land. — Ed. HARRIS V. DE BERVOIR. [CHAP. I. CLARK'S CASE. In the Common Pleas, Michaelmas Term, 1612. [Reported in Godbolt, 210.] Note it was said by Cook, C. J., and agreed by the whole Court, and 41 and 43 E. 3. &e. That if a man deliver money unto I. S. to my use, that I may have an action of Debt,^ or Account against him for the same, at my election. PETER HARRIS v. PETER DE BERVOIR. In the King's Bench, Trinity Term, 1624. [Reported in Croke James, 687.] Debt ; supposing that one Squire delivered to the defendant one hundred pounds to pay to the plaintiff, and that he had not paid it to the plaintiff : wherefore he brought this action. After verdict, upon non debet, it was moved in arrest of judgment, that debt lies not ; for there never was any contract betwixt the plain- tiff and defendant, nor any delivery of the money by the plaintiff to the defendant, and therefore no action of debt lies : yet peradventure he might have account upon this receipt ; but no other action. But it was agreed, that the bailor (if the money be not delivered to him to whom it ought to be delivered) may have action of debt or account at his election ; ^ but he to whose use the bailment was made shall have account only. Damport, for the plaintiff, agreed, that if money be delivered to an- other to deliver to J. S. or to the use of J. S. there J. S. shall not have action of debt but account only. But when it is delivered (as it is here) solvend to J. S. which is intended i^ satisfaction of a debt, there it is not countermandable ; and he who is to receive it as a debt may upon this receipt have an action of debt or account. And to this pur- 1 Y. B. 36 Hen. VI. 9, 10-5 (1467), per Wangford; Rast. Ent. (1540), f. 159, Dett. 1 ; Shaw v. Sherwood (1599), Cro. El. 729, by. 350 n. (20), Moore, 667, Ow. 127; affirmed Yelv. 25, Brownl. 82; Atkin v. Barwick (1718), 1 Stra. 165, 166, per Eyre, J. Accr/rd. — Ed. 2 Y. B. 19 Hen. VI. 69, A-14 ; Y. B. 20 Hen. VL 35, A-4 (but see, contra, Y. B. 19 Hen. VI. 5, B-10) ; Britton v. Barnet, Noy, 72, Owen, 86, s. c. ; Barkby v. Forster, Moore, 458 ; Lincoln v. Topcliff, Cro. El. 644, Noy, 72, 8. c. ; Brown v. London, Freem. 14, 1 Lev. 298, 8. c. Accord. Similarly, if the defendant, who has received money to the use of X, seeks to excuse its non-delivery to X by reason that it was lost, he is chargeable to the plain- tiff in debt. Parry v, Roberts, 3 A. & £. 118. See also Remon v. Hay ward, 2 A. & E. 666. — Ed. SECT. I.] LINCOLN V. PARR. 5 pose the record of a judgment was shown in Trinity Term., 13 Jac. 1, in the common pleas, Greenvile v. Slaning in debt, supposing that George Greenvile delivered such a sum to be paid to the plaintiff ; and for non-payment debt was brought ; and adjudged for the plaintiff. Vide 28 Hen. 8 ; Dyer, 21 ; 41 Edio. Z, pi. 10. 28 Edw. 3, " Debt," 146, that the bailor may have debt or account ; but not that cesty que use shall have that action. But 36 Hen. 6, pi. 10, & 39 Hen. 6, pi. 44, are, that cesty que use the delivery is made may have debt or account. And of that opinion were Doderidge and Lea : wherefore rule was given that judgment should be entered for the plaintiff, unless other cause, &c. Vide 21 Hen. T^pl. 7. LINCOLN V. PARR. In the King's Bench, Trinity Term, 1671. [Reported in 2 Keble, 781.] The court declared their opinion that no evidence of account will maintain Indebitatus as on money delivered to a factor, who often have discharges of greater value, and so involve the court, which they will not allow. Ex motione Winnington to alter visn, and it was said so to be ruled in Guildhall last sitting.^ 1 Speake v. Richards (1617), Hob. 206. Per Curiam : "The action of account Is necessary, wherg the first receipt ab initio was directed to a merchandizing, which makes uncertainty of the neat remain till account finished ; or where a man is charged aa bailifif of a manor, or the like, whereupon the certainty of his receipt appears not till account ; yet even in the case of merchandizing an action of Debt will lie for the summ received before the merchandize, yea and after the merchandize, for so much as he hath not so imphned ; and therefore if I deliver an 100 pounds to one to bu}' cattle, and if he bestow 50 pounds of it in cattle, and I bring an action of debt for all, I shall be barred in that action for that money bestowed and charges, &c., but for the rest I shall recover." Ilussey V. Fiddall (1699), 12 Mod. .324. Holt, C. J. : " Keyling, Chief Justice [1665- 1671], would allow Indebitatus against a receiver or factor, but Hale, Chief Justice [1671-1670], would not." Anonyniou.s (1706), 11 Mod. 92. " Powell, J. If I give money to another to buy goods for mo, and he neglects to buy them, for this breach of trust I shall have elec- tion to bring debt or account ; and cited f. 6 KEY V. GORDON. [CHAP. L FARRINGTON v, LEE. In the Common Pleas, Tkinity Term, 1677. [Reported in 2 Modern Reports, 268.] The Court. Whereas it has been said by Serjeant Newdigate, that the plaintiff here has an election to bring an action of account, or an indebitatus assumpsit, that is false ; for till the account be stated be- twixt them, an action of account lies, and not an action upon the case, — When the account is once stated, then an action on the case lies, and not an action of account. — And by North, C. J. If upon an indebitatus assumjmt matters are offered in evidence that lie in ao- count, I do not allow them to be given in evidence.^ KEY V. GORDON. In the King's Bench, Easter Term, 1701. [Reported in 12 Modern Reports, 521.] Indebitatus Assumpsit by an under officer against his Colonel for his pay. Holt, C. J. If one receive money to the use of another, an indebi- tatus is a proper remedy for it ; '^ but if in this case there were any /i S. C, Freem. 230: "And per North. There is a great deal of difference be- tween thi.s action [^Indebitatus assninpsit] and that of Account; for it was resolved by all the judges in the case of Sir Paul Neal, that, in all accounts where allowances are to be made, no action on the case will lie, but an Account must be brought, which is the proper action." 2 Mod. 31 1, s. c. — Ed. 2 Gilbert v. Ruddeard (1607), Dy. 272 a, n. (32) ; Beckingham v. Lambert (1616), I Rolle, R. 391 ; Tenant v. Elliott, 1 B. & P. 3 ; Farmer v. Russell, 1 B. & P. 296 ; Moody V. Spencer, 2 D. & Ry. 6; De Bernales v. Fuller, 14 Ea.st, 590, n. (a) ; Lilly v. Hays, 5 A. & E. 548; Vincent v. Rogers, 30 Ala. 471, 475 (semble) ; Seals v. Hollo- way, 77 Ala. 344 ; Lewinshon v. Edwards, 79 Ala. 293 ; Crocker v. Higgins, 7 Conn. 342, 348 {semble) ; Johnson v. Collins, 14 Iowa, 63 ; Owinga^w. Owings, 1 Har. & G. 484 (semble^ ; Putnan? v. Field, 103 Mass. 556 ; Fay v. Sanderson, 48 Mich. 259 ; Wentworth v. Gove, 45 N. H. 160 ; Nolan v. Manton, 46 N. J. 231 (semble) ; Weston v. Barker, 12 Johns. 276 ; Wyman v. Smith, 2 Sandf. 331 ; Murdock v. Aikin, 29 ^rb. 59 ; Ross v. Curtis, 30 Barb. 238>Chapman v. Forbes, 123 N. Y. 532 ; Middleton v. Twombly, 125 N. Y. 520^ Draughan'v. Bunting,^ Ired. 10; White u. Hunt, 64 N. C. 496; Aycinena v. Peries, 6 Watts & S. 243 ; Zacharias v. Zacharias, 23 1**^'452 ; Hostetter v. Hollinger, 117 Pa. 606 Accord. So where prrjperfj' is given by A to B to convert into nfooey and pay the same "to C, C may charge B, if at all, by an action of indebitatus assumpsit for money-had and received. Walker v. Rostron, 9 M. & W. 411 ; Hitchcock v. Lukens, 8 Port. (Ala.) 3.33 ; Kreutz v. Livingston, 15 Cal. 344; Lockwood v. Canfield, 20 Cal. 126; Miller v. Billingsly, 41 Ind. 489; Hall v. Marston, 17 Mass. 575; Fitch v. Workman, 9 Met. 517; Fitch ». Chandler, 4 Cush. 254 (semble); Mellen v. Whipple,! Gray, 317, 322 SECT. I.] DALE V. SOLLET. 7 legal deduction to be made by the Colonel, the remedy had been ac- count ; for where one receives money, and has no way to discharge himself of it but payment over, an indebitatus w'ill lie. POULTER V. CORNWALL. ^ In the Queen's Bench, Trinity Term, 1706. "^ [Reported in 1 Salkeld, 9.] *^ Indebit. assumpsit for money received ad computandum. Verdict t«v pro quer., and moved in arrest of judgment, that this action did not i- lie, but account : for if a man receives money to a special purpose, as to account, or to merchandize, it is not to be demanded of the party as a duty, 'till he has neglected or refused to apply it according to the trust under which he received it : and the declaration must shew ^ro. misapplication, or breach of trust. Et per Cur. The verdict has aided this declaration, for it must be intended there was proof to the jury, that the defendant refused to account, or had done somewhat else that rendered him an absolute debtor.^ DALE V. SOLLET. In the King's Bench, November 17, 1767. [Reported in 4 Burrow, 2133] This was an action for money had and received to the plaintiflTs use : nrm assumpsit was pleaded ; and issue joined. Case. — The defendant, a ship-broker, was the plaintiff's agent in suing ff)r and recovering a sum of money for damages done to the plaintiffs ship ; and did recover and receive 2,000/. for the plaintiff's use ; and paid liim all but 40/. which he retained for his labour and service therein ; which the witness (Mr. Fuller) swore he thought to bo a reasonable allowance. And the jin-y were of opinion "that the defendant ought to retain 401. as a reasonal)le allowance." Conse- quently, the plaintiff was not intitled to recover. The plaintiff objected, at the trial, " That the defendant could not give evidence in this manner, of this labour and service ; but ou(jht to {semhlr); Frost v. Gage, 1 All. 262; Catlin v. Birchard, 13 Mirh. 110; Delaware Co. V. Wfstrhr-stpr P.!iiik,4 Don. 07 ; IIiit.(liiiif,'H v. Miner, 40 N. Y. 4.^0 {scmhie) ; Wins- low V. I'Vnnor, I'hill. (N. C.) 5G.5 ; Fleiiiing i;. Alter, 7 S. & K. 295 ; Stoudt r. lline, 45 Pa. .30; Drake v. Whaley (S. Ca.), 14 S. E. R. 097 ; riielps i;. Conant, 30 Vt. 277; Millfr r. Lfikf, 24 W. Va. 545 {sewhip). The j)Iaintiff may of roiirHC proceed in hikIi ca.sc by a l)iil in equity. Hooper v. Holmes, 3 Stock. 122 ; Miller v. Lake, 24 VV. Va. 545. — Ed. 1 Buchanan v. Parker, 5 Ired. 597 Accord, — Ed. 8 DALE V. SOLLET. [CIIAP. I. have PLEADEn it by way of sett-ofk, or at least have given ^notice of it as a sett-of." A verdict was found for the plaintiff ; subject to the opinion of this Court: and if the Court should be of opinion against him, then judg- ment to be entered as upon a nonsuit. Accordingly, on Tuesday last, (the 10th instant,) Mr. Dunninq moved on belialf of the defendant, " that judgment might be entered against the plaintiff, as upon a nonsuit : " and had a Rule to shew cause. i>ir Fletcher Norton, on behalf of the plaintiff, now shewed cause; and insisted that the defendant ought either to have jyleaded it, or given notice of a sett-off : but that he could not take advantage of it in this manner, vAthoxit either plea or notice. Lord Mansfield had no doubt of the defendant's being at liberty to, give this evidence. v^This is an action for money had and received to the plaintiff's use. The plaintiff can recover no more than he is in conscience and equity entitled to^ which can be no more than what remains after deducting all just allowances which the defendant has a right to retain out of the very sum demanded. This is not in the nature of a cros.s-demand or mutual debt : it is a charge, which makes the sum of money, received for the plaintiff's use so much less. The TWO other judges concurred. Per Cur'. Judgment for the defendant, as on a nonsuit.'^ ^ Lord Mansfield's innovation, sanctioning the use of Indebitatus assumpsit aj^ainst a defendant, who is entitled to allowances in the way of commissions and expenses, has been almost everywhere followed. It is impossible for the plaintiff in such a case to prove his allegation that the defendant is indebted to him, as has been pointed out by Professor Langdell in 2 Harvard Law Keviow, 253-257 ; but the great convenience of this common count, as compared with the .action of account, or a bill in equity, the legitimate substitute therefor, has led the courts to shut their eyes to this objection. Accordingly Indebitatus assumpsit has been allowed against a Factor.— Z\ni± v. Walker, 2 Blackst. 1154; Tomkins v. Willshear, 5 Taunt. 431 (semble) ; Arnold v. Webb, 5 Taunt. 432 n. (a), (semble) ; Judah i-. Dyott, 3 Blackf. 324 ; Perry v. Smith, 31 Kas. 423. A'jent for Collection. — Sneed v. Hanly, Hempst. 659; Kimbro v. Waller, 21 Ala. 376 ; Jett o. Hempstead, 25 Ark. 462 ; Central Co. v. First Bank, 73 Ga. 383 ; Hayward V. Gunn, 82 HI. 385; Cagwin v. Ball, 2 HI. Ap. 70; Helvey i-. Board, 6 Blackf. 317; Dodds V. Vannoy, 61 Ind. 89 ; Coffin v. Coffin, 7 Gi-eenl. 298 ; Mast ;;. Easton, 33 Minn. 16'l ; Wentworth v. Gove, 45 N. H. 160; Stafford v. Richardson, 15 Wend. 302; Finney v. Cochran, 1 Watts & S. 112; Krause r. Dorrance, 10 Barr, 462; Wick- ersham v. Lee, 83 Pa. 416 ; Estes v. Stokes, 2 Rich. 133 ; Cocke v. McGinuis, Mart. & y. 361 ; Lawrence Univ. v. Smith, 32 Wis. 587. Pledgee or Mortgagee for surplus proceeds of a sale. — Over.street v. Nunn, 36 Ala. 666 ; Webster v. Singley, 53 Ala. 208 ; Ballinger v. Bourland, 87 HI. 513 ; Brnnson v. Ballou, 70 Iowa, .34 ; Hertle v. Schwartze, 3 Md. 366; Arms r. Ashley, 4 Pick. 71; Varnum v. Meserve, 8 All. 158; Estabrook v. Earle, 97 Mass. .302; Hancock v. Franklin Co., 114 Mass. 155; Cook v. Basley, 123 Mass. 396; Cope v. Wheeler, 41 N. Y. 303. Trustee of Insurance Pollrij for proceeds of policy. — Sidaways v. Todd, 2 Stark. 400 (see London Co. v. Glyn, 1 E, & E. 652) ; Gould v. Emerson, 99 Mass. 154 ; Der SECT. I.] GILES V. PERKINS. GILES AND Another v. PERKINS and Others, Assignees of DICKENSON AND Others, Bankrupts. In the King's Bench, November 7, 1807. [Reported in 9 East, 12.] '■ Dickenson & Co. were bankers at Birmingham, with whom the ^ plaintiffs had opened a banking account in 1804, which was continued down to the 18th of November, 1805, when Dickenson & Co. stopped payment and became bankrupts. On the 12th of November, 1805, the plaintiffs paid into the bank three bills to the amount of above £1100, which were indorsed by them, but were not due till December and January following ; and at the time of the bankruptcy there was a considerable balance due to the plaintiffs upon their cash and bills (due) account, independent of the three bills in question. It was stated to be the practice of this and other banking-houses in the country, that when bills which were approved were brought to them by a customer, though the bills were not then due, if they had not a long time to run, they would enter them in a gross sum with cash, or paper which was immediately payable, to the credit of the customer; giving him either cash or liberty to draw upon them to that amount. And the bankers so far considered these running bills (which were always indorsed by the customer) as their own, that they would, as convenience required, pay them away to other customers in the usual course of business, or transmit them to their own correspondents in London : and interest was charged on both sides the account on such paper transactions ; and if the interest account turned out to be against the customer, the bankers also charged a certain commission. Differing in this respect from the practice of bankers in London, who, upon the receipt of un- due bills from a customer, do not carry the amount directly to his credit, but enter them short, as it is called ; that is, note down the receipt of the bills in his account, with the amount, and the times when due, in a romc i;. Vose, 140 Ma.ss. .575; Kimball i'. Oilman, GO N. II. 54; Roberts v. Ely, 113 N. Y. 128. Gunrrlian. — Pirkoriiig i". Do Koclicmont, 45 N. II. C7. In Thoma-s v. Th'ini.'i.s (1850), 5 Kx. 28, a tonaiit in common failed in an action of fnth'liitattis fissiimp.iit af^ajust liis cotenant, wlio liad rncnivpd inoro than bis sliaro of tlio jirofitH. This ca.Hf! bus Ix'cn tiionf^bt to bo at variance witii Lord Mansfiold'.s decision in Dale v. Sollet. 2 Harvard Law Hoview, 250. Hut, altii(jngii I'arkc, IJ., in tlic opinion of tho court, makes tiie old and really fundamental distinction between Account and Debt, this distinction was not material to tlie decision. No actimi wbatevor lav at conunon law by one cotenant apainst bis fellow, nide.ss tho latter had become i)y agree- ment the bailiff of the former. Tim Htatuto 4 Anne, c. 16, § 27. pave the remedy of Account .-igainst the cotenant .as bailiff, thoufjh not in fa<'t a iiailiff. lint tbi- statu- •• tory remedy diers who always entered approved bills at the usual short dates, as cash, and gave the customers the benefit of drawing upon them for the amount accordingly. And he referred to Bent v. Puller, where there having been a general bill account between two parties, one of whom became bankrupt, it was considered that the solvent part}', in whose favor the balance was, could not maintain trover for the bills deposited by him with the other ; they having been paid in on a general account, and not specifically appropriated to answer particular drafts which had not been paid by the bankrupt. Lord Ellenborough, C. J. Every man who pays bills not then due iuto the hands of his banker places them there, as in the* hands of his agent, to obtain payment of them when due. If the banker discount the bill or advance money upon the credit of it, that alters the case ; he then acquires the entire property in it, or has a lien on it x>^'o tanto for his advance.^ The only difference between the practice stated of London and country bankers in this respect is, that the former, if over- drawn, has a lien on tlie bill deposited with him, though not indorsed ; whereas the country banker, who always takes the bill indorsed, has not only a lien upon it, if his account be overdrawn, but has also his legal remedy upon the bill by the indorsement ; but neither of them can have any lien on such bills until their account be overdrawn : and here the balance of the cash account at the time of the bankruptcy was in favor of the plaintiffs. Per Curiam. Rule refused.^ 1 Ex parte Thompson, Mont. & M. 102 Accord. — Y,d. 2 Zinck t'. Walker, 2 Black.st. 1154; Ex parte Madison, 1 Rose, 241 (cited) ; Parke o. EliasoD, 1 East, 544 ; Ex parte Rowton, 1 7 Ves. 426, 1 Rose, 15, s. c. ; Ex parte Sol- * SECT. I.] GILES V. PEEKINS. 11 lers, 18 Ves. 229 ; Ex pmie Sergeant, 1 Rose, 153 ; Ex parte Pease, 19 Yes. 25, 1 Rose, 232, 8. c. ; Ex parte Wakefield Bank, 1 Kose, 243 ; Ex parte Leeds Bauk, 1 Rose, 254 ; Ex parte Buchanan, 1 Rose, 280 ; Thompson v. Giles, 2 B. & C. 422 ; Ex parte Armit- stead, 2 Gl. & J. 371 ; Ex parte Be^on, Mont. & Bl. 120; Jombart v. Woollett, 2 M. & Cr. 389 ; Ex parte Bond, 1 M. D. & D. 10; Ex parte J^dwards, 11 L. J. Bauk. 36 ; Ex parte Barkworth, 1 DeG. & J. 140; Scott v. Ocean Bauk, 23 N. Y. 289; Second Bank v. Cummings (Tenn.), 18 S. W. R. 115 Accord. Although the plaiutiff was allowed to succeed in the common law action of trover, it seems clear that in this class of ca.ses, as iu those where a defrauded vendor resorts to the same remedy agaiust the fraudulent vendee, the court of law have, perhaps unconsciously, admitted trover as a substitute for a bill in equity. In Ex parte Dumas, 2 Ves. 583, Lord Ilardwicke, in 1754, said: " It must be a very extensive question, whether the property of these bills iu point of law remained in the petitioners, so that they miglit maintain Trover at law. They were all made payable to Juliaus or order ; and then he doubted no action of Trover could be maintained ; for the property of the paper will follow the chose iu actiou ; but it would be sufficient if they could be made trustees for the petitiouers." So to the same effect, Collins v. Martin, 1 B. & P. 648, 651, per Eyre, C. B. Lord Eldon reluctantly recognized the innovation in Ex parte Pease, 19 Ves. 46: "I do not consider whether these bills might be recovered in an action. If the doctrine of those cases is right, in which the court has struggled upon equitable principles to support an action of trover, these bills might be recovered at law ; but there is no doubt that they might be recovered by a bill iu equity." If matured or demand paper is iudor.sed "for collection " or "for deposit," and deposited in a bank, the bauk is presumptively not a debtor until the paper is paid. Commercial Bank v. Armstrong, 39 Fed. Rep. 684; Fifth Bank v. Armstrong, 40 Fed. Rep. 46; Fir.st Bank t-. Armstrong, 42 Fed. Rep. 193; Nat. Bauk i;. Hubbell, 117 N. Y. 384; La. Co. v. State Bank, 1 JIcGloin, 181. The rule should be the same where the paper is indorsed " for collection and credit." But see, contra, First Bank v. Armstrong, 39 Fed. Rep. 231 ; Ayres v. Farmers' Bauk, 79 Mo. 421 ; Bullene v. Coates, 79 Mo. 426. The same presumption seems jnst when the paper is simply indorsed in blank by the depositor. lie Agra Bank, 36 L. J. Ch. 151 (srmble); St. Louis Co. v. Johnston, 133 U. S. 566 (reversing s. c, 27 Fed. Rep. 243) ; Balbach v. i'rclinghuysen, 15 Fed. Rep. 675 (approved in Hoffman v. First Bank, 46 N. J. 604 ; but see Terhuue i'. Bergen Bauk, 34 N. J. Eq. 367; Titus v. Mechanics' Bank, 35 X. J. 588.) But see, contra, Somerville v. Beal, 49 Fed. Rep. 790 (semble) ; Metropolitan Bank V. Loyd, 90 N. Y. 530 (adopted in Brooks v. Bigclow, 142 Mass. 6, as controlling evi- dence of New York law). In .Moors v. Goildard, 147 Mass. 287, it was decided that the bank was not a debtor becau.se the customer was allowed to draw against the dejjosit only as a matter of courtesy; but it was said that, if the customer were entitled to draw as a matter of right, the transaction would import a discount. It should be observed iu regard to Metropolitan Bank v. Loyd, supra, tliat tiic controversy arose between the depositor and a creditor of tiie bank to whom the latter had forwarded the pajier on account of its debt ; the case may be thought, therefore, to show the disposition of the New York courts to strain tiic facts in order to avoid the npiilication of their unfortnnat(> doctrine that a creditor taking a bill on account of his claim docs not rank as a purcluiser for value. From the moment of colleftir)n, however, wlicthor the paper is indorsed in l)laiik, or " for collection," or " for collection and cretlit, " the bank is prcsum])tively a dclitur, being entitled and accustomed to treat the proceeds of the paper as its own. Re Hallott's Estate, 13 Ch. Div. 723, 724, per Thcsiger, L. J. ; Crowtlior v. Elgood, 34 Ch. Div. 004, per Cotton, L. J.; (l)nt see AV West of Englaml IJank, 11 Cli. I). 772;) .Marino Bank v. Fulton, 2 Wall. 252; I'lanters' Hank v. Union Bank, 16 Wall. 483, 501; Pha;nix Bank v. Hisley, 111 U. S. 125; Balbach r. Fnlinglinyscn, 15 Fed. Ufji. 675, 682, 6«3 {srwhir); Nat. Bank r. Millfr. 77 Ala. 1C,h; Maritnt Jiank r. (•jianiilcr, 27 III. 625; Marine Bank v. Rushmore, 28 111. 463; Tinkhani v. Ilcyworth, 31 III. 519; Clark V. Merchants' Bank, 2 N. Y. 380; People v. Merchants' Bank, 78 N. Y. 269; Briggs v. 12 CARSTAIKS V. BATES. [CHAP. I CARSTAIRS AND Others, Assignees of KENSINGTON & Co., Bankkupts, v. bates. At Nisi Pkius, before Lord Ellenborough, C. J December 18, 1812. [Reported in 3 Campbell, 301.] This tvi's an action against the defendant, as acceptor of a bill of exchange for £230, dated 13 July, 1812, drawn by J. Allpoit, payable to his own order, at two months after date, and indorsed by him to the bankrupts. AUport, the drawer, kept cash with Kensington & Co., the bank- ers. On the 17th of July they discounted for him this bill and two others, — one for £50 and another for. £80. They credited him with the amount of the three bills, and debited him with the discount ; so that, deducting the discount, they were placed to his account as cash, which he might immediately have drawn out. There was then a bal- ance due to him of three or four hundred pounds, and his account remained good till the banking-house stopped payment. This hap- pened on the 21st of July, and the commission of bankrupt was sued out the following day. FarJi, for the defendant, insisted that the action could not be main- tained, as the bill of exchange under these circumstances remained the property of AUport ; and he relied upon Giles v. Perkins, in which it was held that a customer paying bills not due into his bankers in Central Bank, 89 N. Y. 182 ; People v. City Bank, 93 N. Y. 582 ; Nat. Bank v Ilubbell, 117 N. Y. 384; .Jockusch v. Towsey, 51 Tex. 129. But see, contra, Re Brown, 6 Morrell. 81 ; First Bank v. Armstrong, 36 Fed. Rep. 59; Nurse v. Satterlee, 81 Iowa, 491; Thompson v. Gloucester Bank, 8 Atl. R. 97, N. J. Eq. (1887); Arnot v. Bingham, 55 Hun, 553. Where paper is sent to a distant bank for collection and remittance, the bank, according to the following cases, does not become a debtor upon collection, but is to be treated as a trustee until remittance is actually made either in specie or by an ap- proved draft. Philadelphia Bank v. Dowd,38 Fed. Rep. 172 {semlile) ; Harrison Works V. Coquillard, 26 111. Ap. 513; People v. Dansville Bauk,-39 Hun, 187; Bank v. Weems, 69 Tex. 489. A bank collecting the paper after its known insolvency has, of course, no right to use the proceeds as its own, but mu.st hold them as trustee. German Bank v. Third Bank (U. S. C. C. 1878), 18 Alb. L. ,J. 252; Franklin Bank v. Beal, 49 Fed. Rep. 606, 607 (semble) ; Somerville v. Beal, 49 Fed. Rep. 790; Manufacturers' Bank v. Continental Bank, 148 Ma.ss. 553; .Jocku.sch v. Towsey, 51 Tex. 129. If the trustee for collection sees fit, without authority, to take anything else than money in payment, and surrenders the paper, the depositor should have the right to treat the transaction as a collection and so to charge the bank as a debtor. Franklin Bank v. Beal, 49 Fed. Rep. 006; Harrington v. Merchants' Bank, 17 Phila. 38. See, contra, Russell v. Hankey, 6 T. R. 12 (followed in Ridley ?;. Blackett, Peake, N. C. 62, but questioned in Grant, Banking, 4th ed. 80) ; Levi v. Nat. Bank, 5 Dill. 104 ; Stein- harte v. Nat. Bank (Cal. 1892), 29 Pac. R. 717. — Ed. SECT. I.] MACKERSY V. EAMSAYS. 13 the country, who credited their customers for the amount of such bills if approved as cash (charging interest), was entitled to recover back such bills in specie upon the bankers becoming bankrupt, the balance of his cash account, independent of such bills, being in his favor at the time of the bankruptcy. There Lord EUenborough said, " Every man who pays bills not then due into the hands of his banker places them there as in the hands of his agent, to obtain payment of them when due." LoKD Ellenbokough. Is it meant seriously to contest the right of the assignees to recover in this action? The bankers were the purchasers of this bill. They did not receive it as the agents of All- port. The whole property and interest in the bill vested in themselves, and they stood all risks from the moment of the discount. If the bill had been afterwards stolen or burned, theirs would have been the loss. In Giles v. Perkins the bankers were mere depositaries, with a lien when the account was overdrawn. The customer there drew upon the " credit of the bills deposited^ Here Allport might have drawn out the amount of the bill, deducting the discount, as actual cash, in the same manner as if he had discounted the bill with a third person, and then paid in the amount in bank notes. The discount maizes the bankers complete purchasers of the bill ; the transaction was completed ; the}' had no lien, but the thing itself; the bill was as much theirs as any chattel they possessed. This very distinction was taken in the case* cited ; for it was there said, " If the banker discount the bill, or ad- / Ak^vance money upon the credit of it, that alters the case; he then I acquires the entire property in it, or has a lien on it jvo tanto for his advance." Verdict for the plaintiff} WIIJJAM MACKERSY, Appkllant, v. RAMSAYS, BONARS, & Co., Responuknts. Ix THE House of Lords, March 2, 9, 1843. [Reported in 9 Clark ^ Finnelly, 818.] Lord Campreij..^ I am of opinion that the interlocutor of the Lord Ordinary was riglit, and tliat thauy Bank, 7 N. Y. 459 ; C. Iv Bank v. V. N. P>ank, 1 18 N. Y. 443, 447 ; and in Allen r. Mer- chants' Hank, 22 Weml. 215, and Ayrault v. I'acilic Bank, 47 N. Y. 570, wiiero the flub-agcnt wa.s a notary. The contrary rule is maintained in the following cases of 8ul)-agent banks : Fa.st Ha•. Arthur, .34 Miss. 41 ; Bank v. Butler, 41 Oil. St. 519; Bello- mire v. U. S. Bank, 4 Whart. 105. — Ed. 16 COMMERCIAL NAT'L BANK V. HAMILTON NAT'L BANK. [CIIAP. L for aocoiint of Fletcher & Sharp," — and sent it to the defendant, whose cashier John Mohr was, at Fort Wayne. The defendant col- lected tlie draft on ,Tuly 10, 1834, and the same day credited Fletcher & Sharp with the proceeds, $3,-41)7;4i), and advised theui of the fact. On receipt of this advice, July 11th, Fletcher & Sharp charged the defendant, and credited the plaintiff, with the amount, and notified the latter. This notice was received by the plaintitf, July r2th, when it charged Fletcher & Sharp. On July l.'ith the defendant posted a letter ai Fort Wayne, addressed to Winslow, Lanier, & Co., bankers at New York, directing them to credit Fletcher & Sharp with the amount collected. At this time, and for several years previous, the defendant and Fletcher & Sharp had made collections for each other under an arrangement whereby any amount due from one to the other was placed to tlie latter's credit with Winslow, Lanier, & Co., with which banking firm both kept accounts ; but the plaintiff had no knowledge of this arrangement. The defendant in good faith directed that the credit be given to Fletcher & Sharp in New York, not knowing that Ihey were indebted to Winslow, Lanier, & Co. Fletcher & Sharp failed, and ceased to do business, on July 14th, which failure was announced in the evening papers of Fort Wayne the next day, after banking hours, not, however, until after the defendant had posted the letter of instruction to Winslow, Lanier, & Co. This letter was re- ceived in New York on July 17th. The defendant knew of the failure of Fletcher & Sharp on July IGth ; and, although it had ample time to have done so, it failed to countermand the order sent by mail to the New York banking firm. On July 25th the plaintiff addressed a letter to the defendant, claiming the collection, and demanding that it be re- mitted. The demand was refused, and this suit was brought to recover the amount. The indorsement to Fletcher «fe Sharp "for collection" authorized them a'ld their indorsee to collect the draft for the owner, the plaintiff. Fletcher & Sharp received the draft for collection, and for no other purpose, and the restrictive character of the indorsement informed the defendant that the title remained in the plaintiff, and that it would own the proceeds when collected. The defendant became a mere sub-agent of the plaintiff for collection, with no more right to pay the proceeds to Winslow, Lanier, & Co. than Fletcher & Sliarp would have had if they had made the collection. Fletcher & Sharp acquired no property in the draft, and they passed none to the defendant. The defendant, as sub-agent or trustee of the plaintiff, was bound to send the proceeds to it directl}', or through Fletcher & Sharp.^ It did neither. The de- fendant claims that the placing of the amount of. the collection to the credit of Fletcher & Sharp on the books of Winslow, Lanier, & Co., the charging of the same amount against the defendant by Fletcher & Sharp, the crediting by them of the plaintiff with a like amount, and the charging of Fletcher & Sharp by the plaintiff, amounted to a payment ^ See criticism of this statement in 4 Bank. L. J. 3. — Ed. SECT. I.] COMMERCIAL NAT'L BANK V. HAMILTON NAT'l BANK. 17 by the defendant to the plaintiff, through Fletcher & Sharp ; that the defendant should not be required to pa}- the mone}- again ; and that the draft and its proceeds were, in all respects, treated in accordance with lono- and well established custom and usage among banks and bankers. The plaintiff's indorsement upon the draft was plain, and its legal force cannot be defeated by resort to usage or custom, or by any method of book- keeping.^ In discussing the effect of indorsements of this charac- ter, the Supreme Court, in White v. Bank, 102 U. S. 658, said: — ■» "The language of the indorsement is without ambiguity, and needs ' no exi)lanation, either b}- parol proof, or by resort to usage. The plain meaning of it is that the acceptor of the draft is to pay it to the indor- see for the use of the indorser. The indorsee is to receive it on account of the indorser. It does not purport to transfer the title of the paper, or the ownership of the money when received. Both these remain, b}' the reasonable and almost necessar}' meaning of the language, in the indorser. ... If this be a sound view of the legal effect of the written indorsement, neither parol proof nor custom can be received to con- tradict it." Instead of sending the money directly to the plaintiff, or through Fletcher & Sharp, the defendant sent it to Winslow, Lanier, & Co., in New York, not for the plaintiff, but to the credit of Fletcher & Sharp. It was a violation of the i)lain terms of the plaintiff's indorsement to thus treat the draft and its proceeds as the property of Fletcher & Sharp. The defendant sent no money to New York to be credited to Fletcher & Sharp. It simply instructed Winslow, Lanier, & Co., by letter, to charge it, and credit Fletcher & Sharp with an amount equal to the collection ; and if the letter of instruction left Fort Wayne before the defendant knew of the failure of Fletcher & Sliarp, the defendant knew of the failure in ample time to have sent a despatch countermand- ing the instruction. Finding and judgment for the plaintiff for the amount collected with interest."^ * Sweeny v. Easter, I Wall. 17.3; Dank of the Metropolis v. First Nat. Bank of Jersey City, 19 Fed. Hep. 303 ; Bank v. Armstrong;, 39 Fed. Hep. 684 ; First Nat. Bank V. Hcno Co. Bank, 3 Fed. Hop. 257 ; BlaiiKi r. Bourne, 11 H. I. 119 ; Bank v. Ihilibell, •22 N. !•:. Hep. lO.n ; I'ar.sons, Notes & Bills, § 143. yy 2 If the owner of a hill deposits it with an agent, i. e. a trustee, for collection, indi- cating hy the words " for colloction " or otlu-rwise his interest in the hill, and tho agent, in duo course, transfers the l)ill to a sni)-agent for collection, and Ixfon' collec- tion the agent becomes bankrupt, tho owner of tho i)ill is entitled to reclaim tho hilL or its jToceeds from the sub-agent, without regard to the state of the accounts between tho agent and sub-agent. Sweeny v. Kiuxtor, 1 Wall. IGO; First Bank v. Heiio Hank, 3 Fcl. Hep. 2.')7 ; Metropolis Bank v. First Bank, 19 Fed. Hep. 301 ; First Bank v. Armstrong, .39 Fed. liep. 231 ; Fifth fJank v. Armstrong, 40 Fed. Itep. 46; First Hank ». ArmstrDUg, 42 Fed. Hep. 193 ; I'eck r. First Bank, 43 Fed. Hep. S.")? ; Centnil Co. V. First Bank. 73 Cia. 383; First Bank v. First Hank, 70 Ind. ."iOl ; Union H.ink v. Johu.son, 9 Gill & .1. 297 ; Cecil Hank v. Farmers' Bank, 22 Md. I4H ; M.inufacturers' Bank v. Continental Bank, 148 Mass. .5.53; Freeman's Hank v. National Co., l.'il Mass. 413; Warner f. Lee, 6 N. Y. 144; Naaon i-. First Bank, 116 N. Y. 492; Producers' a IS COMMERCIAL NAT'L BANK V. HAMILTON IsAT'L BANK. [CHAP. I. Bank v. Ricketts, 1 W. N. (Pa.) 48; Blaine v. Bourne, 11 R. L 119; Sherman Bank v. Weiss, 67 Tex. 331. > See also, to the same effect, Kalteiibach v. Lewis, 10 App. Cas. 617. (A sub-factor received proceeds of goods after the baukruptcy of factor and knowledge thereof, and with notice of the principal's claim.) ^ In accordance with the decision in the principal case, that the owner's rights are the same altliough the agent becomes bankrupt a/kr collection, see Levi v. Nat. Bank, 5 Dill. 104; Re Armstrong, 33 Fed. Hep. 40.5; First Bank v. Bank, 33 Fed. Rep. 408 ; Commercial Bank r. Armstrong, 39 Fed. Kep. 6S4 ; Nat. Bank v. Beal, 50 Fed. Kep. 3.5.5 ; Armstrong v. Nat. Bank (Ky. 1890), 14 S. W. K. 411. In Freen'ian J'. Exchange Bank, 87 Ga. 45, a creditor of the depositor was allowed to garnishee the sub-agent after collection, but before remittance to the agent. Compare Fourth Bank v. Mayer (Ga. 1892), 6 Bank. L. J. 479 ; Naser v. First Bank, 116 N. Y. 492. ^ On the other hand, the original owner did not prevail against the creditors of the bankru})t agent in Hyde v. First Bank, 7 Biss. 156. See Freeman's Bank v. Nat. Co., 151 .Mass. 41.3, 418. jT If the agent, as a del credere factor, holds the claim against the sub-agent as a trus- tee for the depositor, the sub-agent is obviously not entitled to make use of any claim against the agent by way of set-off, to the prejudice of the depositor. t, If the owner of a bill deposits it with an agent, i. e. a trustee, for collection, but without indicating the trust on the bill, and the agent in the natural course of business transfers the bill to a sub-agent for collection, to be held and credited on the account between the agent and .sub-agent, and then the agent becomes bankrupt, being indebted to the sub-agent, the principal cannot reclaim the bill or its proceeds from the sub- agent, in jurisdictions where a transferee on account of an antecedent debt is treated as a purchaser for value without notice. Johnson v. Robarts, 10 Ch. 505; Bank of Metrop. V. N. E. Bank, 1 How. 234, 6 How. 212, s. c. ; (but see Wilson v. Smith, 3 How. 763;) Vickrey v. State Association, 21 Fed. Rep. 773; Wyman v. Colo. Bank, 5 Col. 30; Coors v. German Bank, 14 Col. 202; Rathbone v. Sanders, 9 Ind. 217; Wood ('. Boyl-ston Bank, 129 Mass. 358; Cody v. City Bank, 55 Mich, 379; Edson v. Angell, 58 .Mich. 336 ; Hoffman v. First Bank, 46 N. J. 604 ; Carroll v. Bank, 30 W. Va. 518. (But see,contra, Lawrence v. Stonington Bank, 6 Conn. 521 ; Miller v. Farm- ers' Bank, 30 Md. 392 ; First Bank v. Strauss, 66 Miss. 479 ; Millikin v. Shapleigh, 36 yio. 596 ; Bury v. Woods, 17 Mo. Ap. 245.) For the same reason, where goods are consigned to a factor for sale, and by tiie factor, in due course, to a sub-factor, who sells and receives the proceeds before the factor's baukruptcy, and in ignorance of the original coiisignor's interest in the goods, the sub-factor is entitled to apply the pro- ceeds in satisfaction of any claim he may have against the factor. New Zealand Co. V. Watson, 7 Q. B. Div. 374. y In jurisdictions where one who takes negotiable paper on account of an antecedent debt is not treated as a purchaser fot value, the principal is, of course, entitled to recover the bill, if it is still uncollected and in the hands of the sub-agent. Van Amee V. Troy Bank, 8 Barb. 312 ; Scott v. Ocean Bank, 23 N. Y. 289 ; Hoffman v. Miller, 9 Bosw. 334; Commercial Bank v. Marine Bank, 3 Keyes, 337 ; Dod v. Fourth Bank, 59 Barb. 265; Stark v. U. S. Bank, 41 Hun, 506; First Bank v. Gregg, 79 Pa. 384; Hackett i-. Reynolds, 114 Pa. 328. And after collection the principal may enforce the sub-agent's liability as debtor to the agent without any deduction by way of set-off of any debt due from the agent to the sub-agent. McBride v. Farmers' Bank, 26 N. Y. 450; Dickenson v. Wason, 47 N. Y. 439; West v. American Bank, 44 Barb. 175; Lindauer v. Fourth Bank, 55 Barb. 7.'j ; Jones v. Milliken, 41 Pa. 252. — Ed. SECT. L] ex parte BROAD. IN RE NECK. 19 Ex Parte BROAD. In Re NECK. Ix THE Court of Appeal, July 18, 1884. [Reported in 13 Queen's Bench Division, 740.] This was an appeal from an order made by Mr. Registrar Hazlitt, on the 24th of April, 1884, directing the trustee in the liquidation of J. F. Neck to pay J. Thomsen, of Bergen, in Sweden, out of the assets of the debtor, the sum of £450, being the amount of a draft drawn by Thomsen on Westenholz Brothers of London, dated the 13th of July, 1883, payable at sight, and which was remitted by Thomsen to Neck for the purpose of taking up a bill of exchange drawn by Thomsen on Neck, dated the 19th of April, 1883, and accepted by Neck. Neck had carried on the business of a foreign banker and merchant in the city of London. Thomsen carried on business at' Bergen, in Sweden, as a merchant, under the firm of Gottlieb Thomsen. For some years Neck had been in the habit of accepting for the accommo- dation of Thomsen bills drawn on him by Thomsen. The course of business was thus described in an aflidavit made by Thomsen: " For some years past I have been accustomed from time to time to draw l)ills upon Neck at three months date, which he has accepted, and before the due dates of such bills it has been my invariable custom to remit funds to Neck to cover my drafts as they respectively matured." Thomsen further said : " On the 19th of April, 1883, I drew a bill for f 4.50 on Neck, payable to the order of Bergen's Private Bank, at three months date, which bill was accepted by Neck, and was made payable at his bankers' in the city of London. The said bill matured on the 21st of July, 1883 (the 22d of that month falling on a Sunday). On the 13th of July, 1883, I remitted to Neck a draft for £450, upon Westenholz Brothers of London, at sight, which I am informed and believe was received by Neck on the 17th of July, 1883. I am also informed and believe that the draft upon Westenholz Brothers was accepted by that firm, and was paid by Neck to his account with his bankers on the day it was received, and tliat it was duly collected." On Uie 20th of July, 1883, Neck stopped payment, and, when the bill for £150 which he had accepted was presented the next day to his bankers for payment, y)ayment was refused. Neck made an aflidavit in which he said : " Thomsen was well , aware from time to time, when he remitted to me bills to meet my "' acceptances on his account and for his accommodation, that I was in the habit of discounting sucli bills remitted by him, although, as ii mattf-r of fact, I somolimfs did not discount such bills forthwith, l)ut retained the same until it was convenient to me to discount them. In any event it was the arrangement between us that I should del)it him with interest at the rate of five per cent per annum in respect of moneys paid by me for the purpose of p.aying my credit acceptances as afore- said, and credit him with interest at the same rate, from the due dates of any remitted bills, in respect of rny moneys which *vere the pro 20 EX PAllTE BROAD. IN RE NECK. [CIIAP. L ceeds of bills remitted by him. It was my custom to render accounts to Thomson annually, and such accounts were made up to the 31st of December in each year, and the balance of interest was either debited or credited, as the case might be, in the accounts so rendered." Neck's books showed that the accounts between himself and Thom- sen were kept in the manner thus described. The letter dated the 13th of July, 1883, in which Thomsen sent to Neck the bill for £450 on "Westenholz Brothers, contained the follow- ing passage : " Enclosed I beg to remit £450 at sigiit on Westenholz Brothers, which please encash to my credit." In a letter dated the 18th of July, 1883, written by Neck to Thomsen, he said : " We are in receipt of your favor of the 13th inst. handing a check for £450 for 17th inst. on Westenholz Brothers, which is noted to the credit of your account." In the book of " bills receivable " kept by Neck, the bill on Westenholz Brothers was entei'ed as received on Thomsen's account. On the 14th of November, 1883, Neck filed a liquidation petition, under which his creditors resolved on a liquidation by arrangement, and appointed a trustee. The trustee appealed from the Registrar's order. Sidney Wool/, for the appellant. J. E. Linklater, for Thomsen.^ Cotton, L. J. I also am of opinion that the appeal must be allowed. We have to deal with the proceeds of a remittance made by the customer to the debtor which had been cashed before the debtor's stoppage, not with a bill which remained in specie at the time when the stoppage took place. If the bill had remained in spe- cie, the matter would have stood upon a very different footing, and, though it is not necessary to decide the point, probably the customer might then have been entitled to say, " That is my bill ; I have paid your acceptance, therefore hand over the bill to me." ^ But what really took place was this. A few days before the stoppage the debtor cashed the bill, and now the customer says, "I am entitled to follow the proceeds, as trust money specifically appropriated to a purpose which has not been performed, and therefore the money ought to be handed over to me." In my opinion he is not so entitled. We find that tlie course of dealmg was this. Although the remittances were made by the customer for the purpose of meeting the debtor's acceptances on his account, yet the debtor cashed or discounted the remittances which were made to him, and carried the proceeds to the general account of the customer, and credited the customer with interest on the sums which he had thus received in respect of the remittances. Now in In re Gothenburg Commercial Co., Sir G. Jessel, M. R., said, "The bills were sent, I think, originally for the purpose gen- ' The arguments of counsel, as well as the concurring opinions of Lindley and Baggallay, L. .JJ., are omitted. — Ed. ^ ilassall y. Smithers, 12 Ves. 119; Ex parte Gomez, 10 Ch. 639 ; Re Gothenburg Co., 29 W. R. 358 ; Ex parte Dever, 14 Q. B. Div. 611, 622 Accord. — Ed, SECT. I.] STUMORE V. CAMPBELL. 21 erally of providing funds to meet the acceptances, and for no other purpose, with this right of discounting and appropriating the monej'.'* If a man pays interest for money, he must be entitled to the use of it. "When a man loclvs up money which is intrusted to him in a box, he does not pay interest on it. I thinli we must judge of the contract between the parties from the course of dealing and from the accounts which were rendei'ed, and, looking at the whole course of dealing, in my opinion, although, so long as the remittance remained in specie, the customer might have said, " Hand it over to me," yet, looking at the accounts rendered from time to time, the inference is that the banker was to be at liberty to put himself in funds by cashing the remittances, and, when he had done so, to treat himself, not as a trustee of the proceeds for the customer, but only as a debtor to the customer for the sum which he had thus received. In my opinion, interest being from time to time carried to the credit of the customer in the account, the banker was entitled to put the proceeds into his own pocket, not keeping them separate from his general account. In my opinion, therefore, as regards the proceeds of this bill which was cashed before the stoppage, the customer must come in and prove as a creditor, and I cannot say that the debtor was a trustee of the money for him. I cannot see any distinction between the present case and In re Gothenburg Commercial Co. Ap2>eal allowed.^ STUMORE V. CAMPBELL & CO. In the Court of Appeal, November 28, 1891. [Reported in (1892) 1 Queen's Bench, 314.] * Appeal from the judgment of A. L. Smith, .J., on an interpleader issue. The plaintifl", as judgment crditor of Colonel Bett}', deceased, chiinied to attach a sum of money in the hands of the defendants. This sum of money was intru.sted by the deceased to the defendants, who were acting as his solicitors, to be handed over to the plaintiff witli a bill of exchange wliicli the deceased was to provide, to carry out an arrange- ment by which the money and bill of exchange were to be taken in satisfaction of tlie judgnicut. This arrangement ))roke down by rea- son of the death of Colonel Betty before he had provided the bill of exchange, and the money remained in the hands of the defendants. The defendants had a claim for law costs against the estate of the decease<\to a large amount, and they advanced this claim as an answer to tlie plaintiff's aiiplicution for an onh^r to attacii the money in their hands. An issue was accordingly directed to determine whether the defendants were indebted to the estate of the deceased. The learned judge was satisfied that the claim for costs was in excess of the amount 1 Tfiit I'. PnllfT, .5 T. 1{. 404 ; Bolton v. riillcr. 1 P.. & P. .')39 ; Re Gothenburg Co., a9 \V. li 3J8; Ex parte Devcr, 14 C^. IJ. Div. 611, 622. — Eu. 22 STUMOUE V. CAMPBELL. [CHAP. I. of tlie mouej' deposited, and he held that the defendants would be en- titled to coiuiter-claini for these costs in an action b}' the executors for repayment of the money deposited. He, therefore, decided that they were not indebted to the estate of tlie deceased, and gave judgment in their favor, and the plaintiff appealed. TV. Fhipson, for the plaintitT. Muir Mackenzie^ (with him, R. T. Eekl, Q. C,) for the defendants.' Lord Esiikr, M.R. In this case the question is whether the defend- ants are indebted to the estate of the deceased. A. L. Smith, J., has decided that they are not, for reasons that I will presently notice ; but I find myself unable to agree with the learned judge. It appears that some money was placed in the hands of the defend- ants, who are solicitors, for a particular purpose. 80 long as that pur- pose existed there was a trust imposed on them, and they were bound, if they accepted the money at all, to employ it or lay it out in the par- ticular way indicated by the trust. That trust failed, and the result of that failure was that another trust arose immediately to pay back the money to the person who gave it. It is admitted that, being trustees, no lien would attach in their favor, because the money was intrusted to them for a specific purpose. Brandao v. Barnett^ is conclusive on this point. It was also admitted that there would have been no right of set-off in an action before the Judicature Acts to recover this money; — such a plea would have failed, and judgment would have been for the full amount.^ But it was said that under the Judicature Acts they could have claimed their costs by way of counter-claim, and the learned judge has held that for this reason they were not indebted to the estate of the deceased. The Judicature Acts, as has been often said, did not alter the rights of parties ; they only affected procedure, so that no set-off could now be maintained in such a case as this. Be- fore these Acts a person having a cross-claim must have raised it by a cross-action ; but these Acts have given a right to counter-claim. In some of the cases language has been used which would seem to imply that a counter-claim is sometimes in the nature of set-off and some- times not. No doubt matter is occasionally pleaded as counter-claim which is really set-off ; but counter-claim is really in the nature of a cross-action. This Court has determined that, where there is a counter- claim, in settling the rights of parties, tlie claim and counter-claim are, for all purposes except execution, two independent actions. If the plaintiff sustains his claim, judgment goes for him on that ; and if the defendant sustains his counter-claim, judgment goes for him on that. Either claim may be reduced by set-off. But if the plaintiff succeeds in the one case and the defendant in the other, there are two judgments which are independent for all purposes except execution. Wills, J., in Westacott v. Bevan,"* has said that this Court must be * The arguments of counsel and the concurring opinions of Lopes and Kay, L. JJ, are omitted — Ed. 2 12 CI. & F. 787. 4 (1891) 1 Q. B. 774. • But see Gannon v. Ruffiu, 151 Mass. 204, 206 (semble) Contra. — Ed. SECT. I.] COMMONWEALTH V. FOSTER. 23 taken to have held that these judgments are only sepai'ate for the pui-pose of determining the taxation of costs ; but that is a misinter- pretation of what this Court has said. Execution, as formerly in cross- actions, is issued for the balance and in favor of the one who has that balance, and tliis applies to the amounts recovered, and also to the costs. The view this Court has taken is not that which Wills and Vaughan Williams, JJ., attribute to it, though it is very probable that their decision in that case was right. The consequence is that the executors could have obtained a judgment, though the defendants might have had judgment on their counter-claim for a larger amount. There is, therefore, a debt due from the defendants to the estate, and the plaintitf is entitled to attach that debt under a garnishee order. The appeal must, therefore, be allowed. Appeal allowed.^ COMMONWEALTH v. WILLIAM R. FOSTER. In tiir Supreme Judicial Court, Massachusetts, March, 1871. [Reported in 107 Massachusetts Reports, 221.1 IxDK'TMKN'T for embezzlement, found at July term, 1870, of the Suj^erior Court in Suffolk. At the trial, before Wilkinson, J., John Langley testified that about May l."5, 1X70, being in need of money, he made two promissory notes payable to his own order and indorsed by himself, payable in four and six montlis rcspoctivcly, for §1,250 each, and delivered them to tlic defendant upon tiie special agreement of the defendant to sell the notes and deliver the proceeds to Nathan A. Langley, a brother of the witness, charging a commission for his services ; that at the same time, and as a part of tlie transaction, the defendant gave to the witness, ns receipts, the defendant's own notes of tlie same tenor and date as liiose deUvered to him by the witness, which were deposited by the witness with his brother, to l)e by him given np to the defend- ant wlien tiie latter siiould deliver the proceeds of the witness's notes ' Whon money I.h deposited to he ap[)Iied in spooi'e for a Bpecific pnrpose, whidi can- not lie iU'('2.'i ; and not al; law, Davis v. Cohurn, 12H Mass 377; the Statute of Limitations does nothegin to run until the trust is reputliated to the knowledge of the hetieliciary ; Jones i; McDermott, 114 Mass. 400; and the moni-y. tiiont^h improperly invested hy the fi5 p. m. of that day filed with the clerk of the city and county of New York, an assignuicnt for the benefit of their creditors, and deponent i.s informed and believes that tiieir prop- erty will not pay more than twenty-five cents on the dollar. That an action has been commenced in this court in favor of the plaintiff against the defendants tipon the cause of action hereinbefore set forth, to recover the said sum of SOGG^j/b ^'^^ interest from August 10, 1875, 26 WALLACE V. CASTLE. [CHAP. L and the defendants have all appeared therein, but no judgment has yet been entered therein." The defendants claimed that nothing was due to the plaintiffs at the time of conunonc'ing the action, as the 20th of August luid not tlieu arrived, and that, as they sold under a del credere commission, they were not obliged to pay over the identical money received, and couhi not therefore be arrested for a conversion of it. Tiie following is the opinion delivered at the Special Term by Barrett, J. : *■'• In Ostell V. Brough,^ it was held that a del credere commission does not necessarily destroy the factor's fiduciary relation. If he has actually received the proceeds of the sale, he is liable to arrest for a faihire to pay them over. If, however, he has not received such pro- ceeds and is sued upon his guaranty, he is not liable to arrest. The case was cited with approval in The German Bank v. IMwards,*^ and in Duguid v. Edwards.^ The point, too, was there directly involved, while in Sutton v. De Camp * it appeared that the defendants ' had not received any part of the proceeds of the sale.' It is true that the principal must show himself entitled to the specific moneys collected by his factor. (Liddell v. Paton ; ^ Morange v. Waldron.*^) But he has done this when the relation of principal and factor is made out, and the burden is then upon the latter, if he would relieve himself from his ordinary responsibility, of showing some special agreement or bringing home to the principal some course of dealing inconsistent with the strict relation. (Duguid v. Edwards, above cited.) " This brings to us a consideration of the papers. Under the above test, the plaintiffs made out a clear case for an order of arrest. The defendants' papers nowhere show any affirmative agreement giving them the right to mingle the proceeds of the sales with their own moneys. They simply aver the absence of a special agreement to remit the identical moneys collected ; but that, as we have seen, is implied, and it was for them to establish the converse. Nor do they show a custom to that effect, of which the plaintiff's had knowledge. True, the defendants remitted to plaintiffs from time to time, by checks upon a particular bank ; but there is no evidence that plaintiffs knew that such checks were drawn against defendants' general balance. Noil constat, they believed that the checks were drawn against special deposits of the proceeds of the sale. As to the claim that credit was given until the twentieth of each month following the sales, it might be sufficient to say that this was disposed of by the General Term, adversely to the defendants, upon the appeal from tlie order vacating the attachment. But it is quite evident upon all the proofs that no agreement was made upon the subject, and that it was a mere under- standing to the effect that for mutual convenience plaintiffs' agent would not call from day to day for small sums (as collected), but 1 24 How. Pr. 274. 2 53 n. Y. 541. » 50 Barb. 288. * 4 Abb. N. s. 483. 6 7 Hun, 196. 6 6 lluu, 529. SECT. I.] WALLACE V. CASTLE. 27 would take then ono lump sum upon the twentieth of each month. The right to call and collect from day to day, however, remained ; this disposes of the main question.^ " The motion to vacate the order of arrest must therefore be denied, with ten dollars costs." JBart & Bamburger, for the appellants. A. R. Dyett, for the respondent. i^ Brady, J. The opinion of Justice Barrett satisfactorily disposes of this appeal on the facts and the law. The defendant was a factor, and although entitled to del credere commission his character was not changed. His responsibility and his compensation were enlarged, but that was in fact and in law the only chauge accomplished by the agree- ment del credere. He guaranteed the payment of the sum for which the goods were sold, but his liability did not accrue uutil the purchaser failed to pay. In this case the payment was made, and the contract of liability, therefore, occurring through the del credere commission, was not called into existence. The relation of factor continued, with all its obligations and bur- dens. The money received was the plaintiff's money and not the defendant's. It came from the plaintiff's debtor, and should have been paid to the plaintiff as his fund, whatever its amount, less the com- missions earned. The identical money received was therefore the property of the plaintiffs. See Duguid v. Edwards,^ cited by Judge Bakkktt. Order affirmed, with ten dollars costs and disbursements of this appeal. Davis, P. J., and Ingali.s, J., concurred. , Order affirmed^ ivitlt ten dollars costs and disbursements.^ 1 Onlv so much of the opinion is given as relates to this question. — Ed. 2 50 a-irb. ]{ep. 297. ■'' Defendants, using as their own money received from another, have been held liable to arrest as fiilnciarios in the following cases. Factors. — SihwUU-T v. Sliiclis, 17 How. I'r. 420; Ostoll c. Brough, 24 How. rr.274' Duguid V. Edwards, 50 Barb. 2P8 (reversing s. c. 32 How. Pr. 254) ; Farmers' Bank t. Spraguf, 52 N. Y. 605 {spiiiUp); Standard Refinery v. Dayton, 70 N. Y. 480; Kelly V. Scripture, 9 Ilun, 28.3; Williams Co. v. Kaynor, .38 Wis. 119. Auctioneers. — Crowther v. Elgood, 34 Ch. Div. 091 ; Ilulbrook v. Homer, 6 How- I'r. 86. Other Aqenis to .se//. — Hntdiinson v. Hartmont, W. N. [1877], 29 ; Harris v. In gram, 1.3 Ch. D. 338; Dunabcr v. Meyer, 1 Code Bcp. 87; Kidder v. Wiiit!o< k, 12 How. I'r. 208 ; Turner v. 'rbompson, 2 Abb. Pr. 444 ; Barret v. Gracic, 34 Barb. 20; Wolfe V. Brouwer. 5 Robt. 001 ; Travers v. Dcaton, 107 N. Ca. 500. Aijcnin lo 1)111/. — Noble i'. Trcscott, 4 H. I). Sni. 139; Dnliois r. Thompson, 1 Daly, 309 ; Clark i'. I'inckney, .'iO Uarb. 220 ; Obrcgun v. Do Micr, 52 How. I'r. 35^. Af/enls to collect.— UuMu'hl v. Jones, .36- Ch. D. 5.30; Re Gent, 40 Ch. D. 190; Stoll )'. King, a How. Pr. 298; Frost v. McCarger, 14 How. Pr. 131 ; Hall v. MclNIabon, 10 Abb. I'r. 319; Johnson r. Whitman, 10 Abb. i'r. N. s. Ill ; Power v. D:ivenjiorL, 101 N. Ca. 280. Ai/rnts In prii/ ont. — Burhans V. Casey, 4 Samlf. 707; Repub. of Mexico v. Do Arangoiz, 5 Duor, 034 ; Roberts v. Pro.«scr, .53 N. Y. 200. If by the understanding of the parties the receiver of the money has the right to i 28 WALLACE V. CASTLE. [CHAP. I. mix it with his own, and exercises his ripht, he hecomcs a dehtor, and is therefore not liable to arrest as a fiduciary, as iu the followiut? eases. Bankers. — Bussing v. Thompson, 6 Duer, 696 ; Buchanan Co. v. Woodman, 1 Hun, 639 ; Graeffe v. Carrie, 52 N. Y. Sup'r Ct. 554. Factors. — Goodrich c. Dunt)ar, 17 Barb. 644; Sutton v. De Camp, 4 Abb. I'r. N. 8. 483 ; Donovan v. Cornell, 3 How. Pr. n. s. 525. Auctioneers. — Morange v. Waldron, 6 Hun, 529. Other Afjents to sell. — McBuruey v. Martin, 6 Kobt. 502; Liddell v. Paton, 7 Hun, 195 ; Robbins v. Falconer, 43 N. Y. Sup'r Ct. 363 ; Decatur v. Goodrich, 44 Hun, 3. DiscH.iRGE IN Bankruptcy. — Fiduciary obligors are, in general, not allowed to plead their discharge in bankruptcy as a bar to subsequent suits by the obligees. It would seem that the word " fiduciary " in bankrupt laws should receive the same in- terpretation which, as we have seen, is given to it in the statutes allowiug arrest. This view was strongly put by Sir George Jessel in Emmalo v. Grant, 17 Ch. D. 122, 123-129, and is supported by the following cases in this country, in which the discharged bankrupt continued liable. Factors. — Be Seymour, 1 N. B. R. 29 ; Re Kimball, 6 Blatchf . 292 ; Meador v. Sharpe, 14 N. B. R. 492 ; Gilreath v. Holston Co., 67 Ga. 702 ; Banning v. Bleakley, 27 La. An. 257; Brown v. Garrard, 28 La. An. 870; Desobry v. Tete, 31 La. An. 809; Lemcke v. Booth, 47 Mo. 385 ; Whittaker v. Chapman, 3 Lans. 155 ; Hardenbrook v. Cpllson, 24 Hun, 475. Auctioneers. — Re Lord, 5 Law Reporter, 258 ; Jones v. Russell, 44 Ga. 460. Other Agents to sell. — Treadwell v. Holloway, 46 Cal. r)47. Agents to bui/. — Re Patterson, 2 Ben. 155 ; Matteson v. Kellogg, 15 111. 547 ; Her- man V. Lynch, 26 Kas. 435 ; Flagg v. Ely, 1 Edm. 206. Agents to collect. — Fulton v. Hammond, 11 Fed. Rep. 291 ; Herrlich v. McDonald, 80 Cal. 472 ; Heffren v. Jayne, 39 Ind. 463 ; White v. Piatt, 5 Den. 269. Agents to pai/ out. — Kingsland t'. Spalding, 3 Barb. Ch. 341. Miscellaneous Cases. — Donovan v. Haynie, 67 Ala. 51; Crisfield v. State, 55 Md. 192 ; Halliburton v. Carter, 55 Mo. 435. But it must be admitted that in many cases the bankrupt acts have received a different interpretation, and persons, admitted by the court to be fiduciary obligors, have nevertheless been allowed to plead their discharge as a bar. Factors. — Chapman v. Forsyth, 2 How. 202; Grover v. Clinton, 8 N. B. R. 312; Owsley V. Cobin, 15 N. B. R. 489 ; Re Smith, 18 N. B. R. 24 ; Keime v. Graf, 5 Re- porter, 489; Zeperink v. Card, 11 Fed. Rep. 295; Austill v. Crawford, 7 Ala. 335; Chipiey v. Frierson, 18 Fla. 639 ; Commercial Bauk v. Buckner, 2 La. An. 1023 ; Hay- man V. Pond, 7 Met. 328. In Woolsey v. Cade, 54 Ala. 378, Herrlich v. McDonald, 80 Cal. 472, 480 (semble), and Vail v. Durant, 7 All. 408, the same result was reached, but on the ground that a factor has the right to mix the proceeds of sales with his own money, and make himself a debtor. It is believed that the court in the leading case — Chapman v. Forsyth, supra — was unconsciously influenced by this practice of factors. At all events, the attempted distinction between fiduciary obligation within and fiduciary obligation without the bankruptcy statutes is vague and unsatisfactory. Auctioneers. — Gibson v. Gorman, 44 N. J. 325. Agents to collect. — Noble v. Hammond, 129 U. S. 65; Wolcott v. Hodge, 15 Gray. 547 ; Cronan v. Cotting, 104 Mass. 245 ; Woodward v. Towne, 127 Mass. 41 ; Green V. Chilton, 57 Miss. 598 ; Palmer r. Hussey, 87 N. Y. 303 ; Lawrence v. Harrington, 122 N. Y. 408; Williamson v. Dicken, 5 Ired. 259; Pankey v. Nolan, 6 Humph. 154. Agenl^ to pay out. — Bissell v. Couchaiue, 15 Oh. 59. Partners. — Pierce v. Shippee, 90 111. 371 ; Barber v. Sterling, 68 N. Y. 267. Miscellaneous. — Phillips v. Russell, 42 Me. 360 (bailee of money for carriage); Fowles V. Treadwell, 24 Me. 377 (ijailee for custody) ; Ilennequin v. Clews, 111 U. S. 676 (affirming s. c. 77 N. Y. 427, a pledgee wrongfully transferring the pledge). The doctrine of these cases was recognized also in Up.shur v. Briscoe, 138 U. S. 365 (aflBrming 8. c. 37 La. An. 138); Hervey v. Devereux, 72 N. Ca. 463; Jockusch v. Towsey, 51 Tex. 129, where the defendants were true debtors.. —Ed. SECT. I.] SHOEMAKER V. HINZE. 29 SHOEMAKER v. HINZE. In the Supreme Court, "Wisconsin, August Term, 1881. [Reported in 53 Wisconsin Reports, 116.] Appeal from the Circuit Court for "Waukesha County. The action is to recover 8^0, whicli the complaint alleges " the de- fendant received from the plaintiff, as his agent, ... to the use of the plaintiff." Demand of payment thereof before action, and neglect of the defendant to pay the same, are also alleged. The answer, in addition to the general denial, is in substance that the money was re- ceived by the defendant as a bailment, without compensation, and that it was stolen from him without his fault or neglect. The case is further stated in the opinion. The plaintiff recovered, and the defendant ap- pealed from the judgment. J. V. V. Platto, for the appellant. D. n. Sumner, for the respondent. Lyon, J. The uncontradicted evidence is, that the plaintiff, when at work for the defendant, requested the defendant to take care of 840 in money for him. After some hesitation, the defendant consented to do so, and received the money. The defendant thereupon, presumably in the presence of the plaintiff, placed the money, with other money of his own, in his wallet. The next day the defendant took a small • amount of money from the wallet for use, and in the evening of that * day added §100 of his own money to that remaining therein. The evi- dence tends to show that during the same night the wallet and contents were stolen from the defendant's vest pocket, in which he had placed the same. "We think the evidence shows conclusively that the parties did not contemplate or understand that the same identical money re- ceived by the defendant was to be kept for and returned to the plaintiff on demand, but only that a like sum of money should be repaid by the defendant. The transaction is not, therefore, a bailment, or special deposit, but rather what, in coniniercial language, is termed a general deposit, which is not a bailment, but is in the nature of a loan. Story on liailments, §§41, note 2, 88. So we think the liability of the de- fcudant in tliis ease is i)recisely tiie same as the liability of a bank for u general deposit made witli it ; ' that is, he is not liable in tort for the ' Can- V. Carr, 1 Mfir. 541, n. ; Pott v. CIcrr, 16 M. & W. 321 ; Foley v. Hill, 2 If. L. C. 28; Watts v. fhristie, II Hr^av. 540; Re A};ra I?ank, 36 L. .1. Ch. 151 ; Thninp- son V. HIkks, 5 Wall. 663; Hank of Hfpul.lic i'. Millard, 10 Wall. 152, 155; I'lielan >: Iron Hank, 4 Dill. 88; Re Mutual Society, 15 N. H. K. 44; Southern Co. v. rJouston, 27 Fed. Rep. 344; Moore/'. Meyer, 57 Ala. 20,22; Dawson v. Hunk, 5 Ark. 283; Brohm v. Adkintt, 77 111. 263; (UIh i-. Gross, 96 III. 612; McLain v. W.allace, 103 lufl. 562; Keene v. Collier, 1 Met. Ky. 415 ; Nat. Bank v. Eliot Bank, 20 Law Ueporter, 13S; C.Trr r. Nat. Bank, 107 MasH. 45, 48; I'erley v. Muskegon Co., 32 Mich. 132; 30 riTTSBUUGn nat. bank of commkpvCE v. Mcmurray. [chap, l money, Init is liable in nastimpsi't for a sum eqnal to the snm deposited. His liability is absolute, and it is immaterial that the money was lost without his fault. The instructions to the jury related solely to the law of bailment. The view we take of the case renders it unnecessary to determine whether the judge gave the law correctly or not ; for on the undisputed facts the plaintiff was entitled to recover, and the de- fendant could not have been injured by any error in the charge. Van Trott i\ Weise ; * Dufresne v. Weise."^ By TiiE Court. The judgment of the Circuit Court is affirmed.' PITTSBURGH NATIONAL BANK OF COMMERCE v. Mc- MURRAY. In the SuPREjrE Court, Pennsylvania, October 13, 1881. [Reported in 98 Pennsylvania Reports, 538.] Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, and Sterrett, J J. Green, J., absent. Error to the Court of Common Pleas No. 1 of Allegheny County : of October and November Term, 1881, No. 9. Assumpsit, by George W. and William McMurray against the Pitts- burgh National Bank of Commerce, to recover the sum of $1,300. On the trial, before Collier, J., the following facts appeared. The plaintiffs, who lived in Noblestown, had been in the habit for several years of sending money to S. B. AV. Gill, an attorney at law in Pitts- burgh, as their agent and attorney, for the purpose of investment, on the understanding that Gill was to pay interest on the money from the time he received it until he invested it. On September 17, 1877, the plaintiffs sent the sum of $1,300 to Gill's office, with a message that it was for investment. Mr. Gill was absent from the city, and Davie v. Smith, 29 Minn. 201 ; Seward Co. v. Cottle, 14 Neb. 144; Re Franklin Bank, 1 Paige, 249; TEtna Bank v. Fourth Bank, 46 N. Y. 82; O'Connor v. M. Rank, 124 N. Y. 324 ; Ruffin v. Board, 69 N. Ca. 498; Bank v. Jones, 42 Pa. 536 ; Duncan v. Magette, 2.5 Tex. 245, 248. 1 36 Wis. 439. 2 46 Wis. 290. 8 Mulford V People (111. 1891), 28 N. E. R. 1096 Accord. In the following cases, on the other hand, the transaction amounted to a bailment of the money for safe custody or carriage, and the bailee, being free from fault, was not liable for the loss of the money. Gililin v. McMullia, L. R. 2 P. C. 317 ; Johnson v. Reynolds, 3 Kas. 257 ; Foster v. Essex Bank, 17 Mass. 479 ; First Bank v. Ocean Bank, 60 N. Y. 278; Tompkins v. Saltmar.sh, 14 S. & R. 275 ; Lloyd v. West Bank, 15 Pa. 172; Scott V. Nat. Bank, 72 Pa. 471 ; Duncap v. Magette, 25 Tex. 245 (semble). The distinction between a bailment of money and a debt is illu.?trated also by Coffin V. Anderson, 4 Blackf. 395 ; Mason v. Waite, 17 Mas.s. 500; Ulmer v. Ulmer, 1 N. & McC. 484; Richey v. Hathaway (Pa. 1892), 24 Atl. R. 191. — Ed. SECT. I.] riTTSBURGH NAT. BANK OF COMMERCE V. McMUREAY. 31 the money was left Avith his son and business assistant, who gave the following receipt : " Received, Pittsburgh, September 17, 1877, of George "VV. and "W. IMcMurray, the sum of thirteen hundred dollars, to be invested by me for them. ^ S. B. "W. Gill, H. B. Gill." The standing arrangement that Gill was to pay interest on such funds until invested was not countermanded or alluded to. H. B. Gill, on the same day, deposited this sum in the defendant bank, to the credit of his father's general private account. Subsequently he drew from the bank, on blank checks left with him and signed by his father, suras exceeding $1,300. Two months afterwards, it being currentl}' rumored that S. B. "W. Gill was a defaulter and had absconded, the plaintiffs demanded the sum of §1,300 from the bank, on the ground that it was trust money belonging to them. At this time the balance to Gill's credit was 81,954. The bank refused the demand. On the same day, a writ of sequestration, issued from the Orphans' Court, was served upon the bank, and the said balance standing to Gill's credit was paid to the sheriff, who afterwards, under an order of the Orphans' Court, paid the same to Gill's assignee in bankruptcy. The plaintiffs afterwards brought this suit. The bank alleged that they had an agreement with Gill, that he was to keep a large balance on deposit to secure a line of discounts ; that they received the $1,300 as Gill's money, without notice of any trust; and that, in fact, the transaction between the plaintiffs and Gill was a loan, and not a trust. The defendant presented, inter alia, the following point : (5) " If the jury finrl that the money in question was sent to S. B. W. Gill for investment under the same arrangement as he had before that time received other moneys from plaintiffs for investment, to wit, under an arrangement that he (Gill) was to pay interest to the plaintiffs until the money should Ije invested, then tlie verdict should be for the defendant. And if tiie fact was as stated l)y William McMurray, one of the plaintiffs, that such arrangement was not countermanded when they sent the money claimed in this case to Gill, the presumption would be that the same arrangement was to continue in respect to said money as had been agreed ui)on before that time in respect to other moneys placed by plaintiffs in Gill's hands for investment." Rpfnsed. Kxception. Verdict and judgment for the plaintiffs. The defendant took tiiia writ, assigning for error, iider (ilia, Uic refusal of the above point. TlujinaH C. Lazear, for tiie i)laintiffH in error.^ T. Wdlff-r Day, for t!ie defendant in error. Mr. Justice Paxson delivered the opinion of the court, October 'i4th, 1881. ' Tho argument8 of counsel are omitted, — Ed. 32 niATT V. TUTTLE. [CHAP. I. The clofondant's fifth point ought to have been afRrmed. If, as was alleged, the money was placed in Gill's hands for invest- ment, with an understanding or agreement that until he could find a satisfactory mortgage he should pay interest thereon, the plaintiffs below cannot hold him as a trustee, nor follow his deposit in the bank as trust money. As the court below negatived the point, we must assume the jury would have found the facts as stated therein. The plaintiffs cannot treat Gill in the dual character of trustee and debtor. Undoubtedly the receipt by him of the money for invest- ment, without more, would have made him a trustee. The money would have been trust money, and, if misapplied, could have been followed until it reached the hands of an innocent holder for value. But the agreement to pay interest necessarily implied the right to use the money. Interest is the price or consideration for the use of money. It follows that Gill became the mere banker or debtor of the plaintiffs, subject to the duty of investing the money in a mortgage when a suitable opportunity should occur. In the mean time he had the right to use it in any way his convenience or necessities required. When deposited in the bank, it was the money of Gill, not of the plaintiffs, if the facts be as stated in the point. The remaining assignments are without merit. Judgment reversed, and a venire facias de novo aioarded} DANIEL R. PRATT and Another v. BRONSON B. TUTTLE AND Others. In the Supreme Judicial Court, Massachusetts, October 4, 1883 — January 29, 1884. Field & W. Allen, JJ., absent. [Reported in 136 Massachusetts Reports, 233.] Holmes, J.^ This is a bill in equity for an account of the net profits of the sale of certain patented wares, which were made and sold under patents belonging to, or controlled by, the plaintiffs, in pur- suance of agreements between the plaintiffs and the defendants Tuttle 1 If the duty of repaying money received is absolute, there is a debt, although the parties may have described the transaction as a trust. Kershaw v. Snowden, 36 Oh. St. 181. And a promise of the recipient to pay interest is almost conclusive evidence against a so called trust. Upshur v. Briscoo, 1.38 U. S. 3G5 (affirming s. c. 37 La. An. 138); Kribs v. People, 82 111.425; Re Waldron, 28 Hun, 481. (But see, as to the same transaction, Neilly v. Neilly, 23 Hun, 6.51, Q.-) N. Y. 382.) In Vincent v. Rogers, 30 Ala. 471, Mory v. Michael, 18 Md. 227, and Gutch v. Fos- dick (N. J. Eq. 1891), 22 Atl. R. .590, the courts seem to have fallen into the same error as the parties in treating a debt as a trust. The decisions were right in all the cases except the last. But in Gutch v. FiMk-k, although substantial justice was done, the bill was bad. See also Comstock's App., 55 Conn. 214. — Ed. 2 A portion of the opinion is omitted. — Ed. SECT. I.] HAMER V. SID WAY. 3 o and Whittemore. By these agreements, Tuttle and Whittemore were to purchase the patents, and, to that end, were to make and sell the patented articles, and pay over one half the net profits to the plaintiffs, until the whole agreed price was paid, whereupon the patents were to be transferifed. The Tuttle and Whittemore JIanuf acturing Company, a corporation which has actually done the work, is joined as a defendant. :^11 the defendants demur. There is no doubt that the bill can be maintained against Tattle and Whittemore. They have agreed to turn over net profits as such. Their obligation is not a simple debt, like that of bankers ; Foley v. Hill, 2 H. L. Cas. 28 ; nor a personal obligation to pay a sum of money from their general funds by way of royalty ; but they have made themselves trustees, or quasi trustees, of a specific identified fund, which it is alleged that they have received and not paid over. Such a fiduciary relation founds the equitable jurisdiction invoked, as well as cross demands and complexity of accounts. Badger v. Mc- Namara, 12.3 Mass. 117, 119. Mackenzie v. Johnston, 4 Madd. 373. Foley V. Hill, 2 H. L. Cas. 28, 35. Padwick v. Stanley, 9 Hare, 627, 628. Hemings v. Pugh, 4 Giff. 456, 459. Moxon u. Bright, L. R. 4 Ch. 292, 295. See Barry v. Stevens, 31 Beav. 258. Ordered accordingly.^ H. L. Parker, for the defendants. *". P. Goidding, for the plaintiffs. HAMER V. SID WAY. In the Court of Appeals, Second Division, New York, April 14, 1891. [Reported in 124 New York Reporter, 538.] Parker, J.* The question which provoked the most discussion by counsel on his appeal, and wiiich lies at the foundation of plaintiff's asserted right of recovery, is whctiier by virtue of a contract defend- ant's testator, William E. Story, became indebted to his nephew, William » Scott I'. Snrman, Willcs, 400, 404, 40.'> (semble) ; Salisbury v. Cecil, 1 Cox Eq. 277 (steward); Mackenzie i>. Johnston. 4 Madd. 37.3 (agent to sell); Hunter v. Belcher, 1-2 W. H. 121 (ai,'ciit to soil) ; Kniori B:mk v. Gillfsjiio, 137 U. S. 411 (agent to sell) i Love V. Watkins, 40 Col. .547, .Ofi" (scnhir) ; Dillon v. Connecticut Co., 44 Mil. .'tMS (agent to collect) ; Professor Langdell's Essay, in 2 Iliirv.ini Law Kovicw, 2.'i;)-2Gl Arrnrd. King >'. Ro.4.Hett, 2 Y. & .1. 33 (agent to sell) ; Barry v. Stevens, 31 Beav. 2.'J8 (agent to sell) , Taylor v. Turner, 87 111. 2'J6 (.agent to sell) Contra. See also Varct r. N. Y. Co., 7 I'aige, 500, 5G7-5C8 ; I'cndergast i;. Greenfield, 127 N. Y. 23, 31. — Ei>. ' Everything is omitted except that part of the opinion relating to the question of trufit. — Ed. 3 ' 34 IIAMER V. SIDWAY. [CIIAP. I. E. Story, 2d, on his twenty-first hirthday in the sum of five thousand dollars. The trial court found as a fact that "on the 20th day of March, 18G1), . . . AVilliani E. Story agreed to and with William E. Story, 2d, that if he would refrain from drinking liquor, using tobacco, swearing, and plaj'iug cards or billiards for money until he should be- come 21 years of age, then he, the said William Yj. Story, would at that time pay him, the said William E. Story, 2d, the sum of $5,00U for such refraining, to which the said William E. Story, 2d, agreed," and that he " in all things fully performed his part of said agreement." The defendant contends that ths contract was without consideration to support it, and therefore invalid.^ . . . In further consideration of the questions presented, then, it must be deemed established for the purposes of this appeal, that on. the 31st day of January, 1875, defendant's testator was indebted to William E. Story, 2d, in the sum of So, 000, and if this action were founded on that contract it would be barred by the Statute of Limitations which has been pleaded, but on that date the nephew wrote to his uncle as follows : " DEA.TI Uncle, — I am now 21 years old to-day, and I am now my own boss, and I believe, according to agreement, that there is due me So, 000. I have lived up to the contract to the letter ia every sense of the word." • A few days later, and on February 6th, the uncle replied, and, so far as it is material to this controversy, the reply is as follows : "Dear Nephew, — Your letter of the 31st ult. came to hand all right, saying that you had lived up to the promise made to me several years ago. 1 have no doubt but you have, for which you shall have So, 000 as I promised you. I had the money in the bank the day you was 21 years old that I intended for you, and you shall have the money certain. Now, Willie, I don't intend to interfere with this money in any way until I think you are capable of taking care of it, and the sooner that time comes the better it will please me. I would hate very much to have you start out in some adventure that you thought all right and lose this money in one year. . . . This money you have earned much easier than I did, besides acquiring good habits at the same time, and you are quite welcome to the money. Hope you will make good use of it. . . . W. E. Story. " P. S. — You can consider this money on interest." The trial court found as a fact that " said letter was received by said William E. Story, 2d, who thereafter consented that said money should remain with the said William Yj. Story in accordance with the terms and conditions of said letter." And further, "That afterwards, on the first day of March, 1877, with the knowledge and consent of his Baid uncle, he duly sold, transferred, and assigned all his right, title, ^ The Court held the contract valid. — Ed. SECT. I.] HAMER V. SmWAY. 35 and interest in and to said sum of So, 000 to his wife, Libbie H. Story, who thereafter duly sold, transferred, and assigned the same to the plaintiff in this actipn." We must now consider the effect of the letter, and the nephew's assent thereto. Were the relations of the parties thereafter that of debtor and creditcw simply, or that of trustee and cestui que trust? W- the former, then this action is not maintainable, because barred by lapse of time. If the latter, the result must be otherwise. No par- ticular expressions are necessary to create a trust. Any language clearly showing the settler's intention is sufllcient, if the property and disposition of it are definitely stated. (Lewin on Trusts, 55.) A person in the legal possession of money or property acknowledg- ing a trust with the assent of the cestui que trust, becomes from that time a trustee if the acknowledgment be founded on a valuable con- sideration. His antecedent relation to the subject, whatever it may have been, no longer controls. (2 Story's Eq. § 972.) If before a declaration of trust a party be a mere debtor, a subsequent agreement recognizing the fund as already in his hands, and stipulating for its investment on the creditor's acfcouut, will have the effect to create a trust. (Day v. Roth, 18 N. Y. 448.) It is essential that the letter interpreted in the light of surrounding circumstances must show an intention on the part of the uncle to be- come a trustee before he will be held to have become such ; but in an effort to ascertain the construction which should be given to it, we are also to observe the rule that the language of the promisor is to be in- terpreted in the sense in which he had reason to suppose it was under- stood by the promisee. (White v. Iloyt, 73 N.Y. 505, 511.) At the time the uncle wrote the letter he was indebted to his nephew in the sum of 85,000, and payment had been requested. The uncle, recogniz- ing the indebtedness, wrote the nephew that he would keep the money until he deemed him capable of taking care of it. He did not say, " I will pay you at some other time," or use language that would indicate that the relation of deljlor and creditor would continue. On the con- trary, his language indicated that he had set apart the money the nephew had " earned" for him, so that when he should be capalde of taking care of it he should receive it with interest. He said, " I had the money in the bank the day you were 21 years old that I intended for you and you shall have tlie money certain." 'i'hat he had set apart the money is further evidenced by the next sentence: " Now, Willie, I don't intend to interfere with this money in any way until I think you are capable of taking care of it." Certainly, the uncle must have intended that his nephew should understand that the promise not " to interfere with tiiis money" referred to the money in the bank, which he declared was not only there when the Jiephew became 21 years old, but was intended for iiim. True, he did not use the word " trust," or state that the money was deposited in the name of William E. Story, 2d, or in his own name in trust for him, but the language used must have 36 ALLEN V. IMPETT. [CHAP. 1 been intended to assure the nephew that his money had been set apart for him, to bo kept without interference until lie should be capable of taking care of it, for the uncle said in substance and in effect; " This money you have earned much easier than 1 did . . . you are quite welcome to. I had it in the bank the day you were 21 years old and don't intend to interfere with it in any way until I think you are capa- ble of taking care of it, and the sooner that time comes the better it will please me." In this declaration there is not lacking a single ele- ment necessary for the creation of a valid trust, and to that declaration the nephew assented. The learned judge who wrote the opinion of the General Term seems to have taken the view that the trust was executed during the lifetime of defendant's testator by payment to the nephew ; but as it does not appear from the order that the judgment was reversed on the facts, we must assume the facts to be as found by the trial court, and those facts support its judgment. The order appealed from should be reversed, and the judgment of the Special Term affirmed, with costs payable out of the estate. All concur. Order reversed and judgment of Special Term affirmed. ALLEN, Assignee of PRIOR, a Bankuu.pt, v. IMPETT and Another. In the Common Pleas, Aprii. 29, 1818. [Reported in 8 Taunton, 263.] Assumpsit for money had and received. At the trial, before Dallas, J., at the London sittings after the last term, it appeared that the defendants were trustees of the marriage settlement of the bankrupt, and that certain stock thereby settled was held by them, upon trust, to pay the dividends to the bankrupt during his life ; that he had been permitted by the defendants to receive these dividends until the issuing of the commission against him, whicii happened in December, 1815 ; that in August, 1816, the defendants executed a power of attorney to a third party to receive the dividends, who accordingly received two half-years' dividends, due in April and October, 1810, and paid them over to the wife of the bankrupt, and also received another half-year's dividend, due in April, 1817, which he paid over to one of the defend- ants. The present action was brought to recover the total amount of these dividends Dallas, J., being of opinion that the defendants were lialjle in equity only, and that the action was not maintainable, directed a nonsuit.^ 1 See Holt, N. P. C41. — Eu. SECT. I.] * BARTLETT V. DIMOND, 37 Per Cttriam.^ This action is brought to recover the amount of (lividentls of stock to which the bankrupt was entitled, and which his trustees have received since the baijkruptey, and a^jplied to vfirious purposes. With full notice of the bankruptcy, they refuse to p%}' the money over to the assignees. There cannot, be -any difficulty in sus- taining this action, the whole of the money having been virtually received by the trustees. Mule absolute.'^ BARTLETT v. MARY DIMOND, Executrix of CHARLES PALMER DIMOND, Deceased. In the Exchequer, April 17, 1845. [Reported in 14 Meeson ^ Wehby, 49.] The judgment ^ of the court was now delivered by PfjLLOCK, C. B. This case was argued last term, and time taken for consideration. The question is, whether an action will lie against the defendant as executor, for money had and received by his testator. The testator was appointed by deed by the plaintiff, a mortgagor, and Palmer, the mortgagee, to receive the rents of the mortgaged estate, and by the terms of the deed the testator was, after allowing for the taxes and repairs to the tenants, to hold all the remaining rents in trust for the purposes in the deed specified. The purposes are, first, to pay taxes ; secondly, the costs of collection ; thirdly, a commission ; fourthly, premiums on a policy of assurance ; and, lasth', to apply the Burplus in or Upwards satisfaction, on the 6th January and Gth July, of the accruing interest on the principal money secured, and to pay the ulthnate surplus, if any, to the plaintiff, with a proviso, that if on those days, the fith .January and Gth July, the testator should have rents and profits in hand, it sliould be lawful for him to retain the whole or part, ' Gibbs, C. .J., was absent. * III Ca-sf. »•. Hobcrts, Holt, N. P. ."JOO {sniihlc) ; Hart r. Jliiior, 2 Cr. & ISI. 700; Ropor r. Ilullaiifl, ."} A. & K. 99; Topliaiu r. Morccraft, 8 E. il^ IJ. 972; Howard v. Browiihill, 21 L. J. q. B. 23; Nel.son »•. Ilowanl, r, Mil. 327; Bougliton v. Flitit, 74 N. Y. 476; anil Turner »• McManua, 22 New Mr. 391, 398, it was held that the relation of tru.Htee and rcsini (/tn- trust between tlic defemlaiit and plaiirtiff had liteii dclennined as to the Hiibject matter of the aetion. 'I'lie principle Ujion wliieli the action at law was niaintainable in the c"t>»e9 above cited was well exjiressed by Winhtnian, .)., in To|ilriTii •. MoreiTaft, supra : " It seems to me impossilile to maintain that if a trustee, ill)" of trnst money, enter into an account with \ii>i ri'stui i/w trust, siud tiicre- upoii , ly state an acconnt, ami acknowledf^c that he has a fund in hand appli- cable to the claim ma4. — Ei». " ( >iily the opinion of the Court is here Riven. — !•;». 38 BARTLETT V. DIMOND. * [CITAP. I. for the purpose of paying tlie prcniimns in that year on the policy ; with other provisos. The deed contained a covenant by the testator with Puhner and with the pUiiutitT, that the testator, as long as he should be receiver, would use his endeavors to collect and receive, and would pay and cause to be paid, in manner and for the ends, intents, and pur- poses aforesaid, all the rents received by him. The testator did not execute the deed. According to the terms of this indenture, the de- fendant M'as bound, as Mr. Martin argued, to pay whatever was the balance on each 6th January and 6th July, iirst, in satisfying the inter- est, and, secondly, to pay over the then surplus to the plaintiff ; and as the account stated by the executor showed a balance on some of those days, an action would have lain, not of covenant, because the defendant did not execute the deed, but of special assumpsit (because he agreed to the instrument), on the special contract to make the payments; and, as nothing more was to be done but to pay money, an action for money had and received could be maintained. AVhether, if this had been the true construction of the deed, such an action would have been supported, is not now the question, because we are all clearly of opinion that the testator was not bound, by the terms of the deed, to pay the -Surplus existing on each 6th January and 6th July to the plaintiff. Although there is a contract by the testator to re- ceive and pay the moneys according to the deed, yet it is nothing more in effect than a contract to perform the trusts specified by the inden- ture, and all the moneys received by him under the indenture were held in trust. The testator was not a mere receiver, but a trustee, and the primary important object of his trust was to keep down the mortgage interest ; and for that purpose he had a discretion^ under the control of a court of equity, to keep the funds in his hands, if reasonably neces- sary, and was not bound, on each 6th January and 6th July, to balance his accounts, and pay over on those days the then siu-plus. For instance, it miglit happen that, on the 6th July, the trustee might know that no rents would be forthcoming in time to pay the half-year's interest due in January ; and, if so, he might, without contravening the deed, keep the then surplus towards the subsequent interest. Whether he did so properly or not could not be tried by a court of law : the only remedy would be in a court of equity, which could make proper inquiries and give proper directions. So long as a trust continues, a bill in equity is the only remedy. We think that the moneys received were originally received in trust, and that the trust had not determined at the testator's death. If that trust was ended, and the testator had stated an account, or, in otlier words, had admitted himself to tlie plaintiff that he held any sum of money in his hands payable to him absolutely, he would, with respect to that sum, be a debtor, not properly a trustee, and then an action would have been maintainable against him. This is the prin- ciple upon which Roper v. Holland,^ and other cases '^ referred to in the » 3 Ad & Ell. 99 ; 4 Nev. & M. Cf.8. 2 See Reraou v. Ilayward, 2 Ad. & Ell. 666. SECT. I.] MOOKE V. DARTOX. 39 judgment of this court in the case of Pardoe v. Price, ^ was decided. The case of Alien v. Impett seems at least questionable. There is no evidence, however, of any such statement of account. If the account rendered by the executor had been rendered by the tes- tator, it would have been a question for the jury whether it was such a statement as to constitute the testator a debtor ; but being stated by the executor as the account of the testator, it is only equivalent to evidence that such payments as therein mentioned were made by and to the testator. AVe therefore think the rule must be discharged. Rule discharged.'^ MOORE V. DARTON. In Chancery, before Sir J. L. Knight Bruce, V. C, June 13, 1851. [Reported in 4 De Gex Sf Smale, 517.] This was an administration suit, which now came on to be heard upon exceptions to the report of the master ; and the question was whether the delivery of two documents constituted a donatio mortis causa. The testatrix had advanced to William Moore, one of the plaintiffs, ,£600, and had taken from him upon that occasion the two documents in question signed by him, and which were as follows : " Received the 22d of October, 1843, of Miss Darton, Five Hun- dred Pounds, to bear interest at 4 per cent per annum, but not to be withdrawn at less than six months' notice. " .£500. William Moore." J 13 M. & W 282. 2 DeeVs V. Strutt, 5 T. R. 690 (legatee) ; Jones v. Tanner, 7 B. & C. 542 (legptee) ; Edwards v. Bates, 7 M. & G. 590; Pardoe v. Price, 16 M. & W. 451 ; Edwards v. Lowndes, I E. & B. 81 ; Curtis v. Smith, 6 Blatch. 537, 544; White v. Sheldon, 4 Nev. 280, 294; Bishop v. Houghton, 1 E. 1). Sin. 56G, 571 ; Dias v. Brunell, 24 Wend. 9, 12 Accord. Ar In PMwards v. Lowndes, mpra. Lord Camphcll said, p. 89: "It maybe taken as '^•ettled that wliorc the parties stand to each other in tlio relation of trustee an\ Price, Ifi M. & \V- 4.'»1. Ijj indeed, the trustee, hy ai)])ropriating a sum as payal)lc to tlioccs/iu i/iu- trust, or otherwise, admits that ho holds It to he paid to the restm r/iic trust, and for his use, the character f>f the relation hetwccn the parties is ctianged ; and th(> trustee does not hold it as a trustee properly so called, but as a receiver for the pliiiiitiffH use, who may maintain an action at law for money had and received, founded upon thea|)proprialiou to his use and the liability thence arising. Tliere are many cases that are fouii(b'd upon this princijde, from y\llen v. Impett to lioper v. Holland, 3 A. & E. 99; and these havo reference to earlier dcciaions." — Eo. 40 FARLEY V. TUKNER. [CIIAP. I. "Received the 22(1 of October, 1843, of Miss Diirton, for the use of Auu Dye, One Iluudred Pounds, to be paid to her at Miss Bar- ton's decease, but the interest at 4 per cent to be paid to Miss Darton. "^'100. William Moore." " (I approve of the above) Betty Dahton." The transactions relied upon as constituting the donatio mortis causa took place on June the 28th, 1845, between Miss Darton and Ann Dye, who was mentioned in the second memorandum, and who was Miss Darton's lady's maid.^ Miss Darton died ten days afterwards. The Master found that the ^600 was an outstanding debt from the plaintiff, William Moore, who now excepted to that tinding. Mr. Sicanston and Mr. Moxon supported the exceptions. 3fr. Walker and Mr. Pryor contra. Mr. Marshall, for other parties. The Vice Chancellor. The case as to the ^100 is, I think, beyond the influence of the question whether there was a donalio mortis causa/ for, in my opinion, an effectual trust w^as declared inter vivos in favor of the servant maid. The document relating to this sum appears to have been written contemporaneouslj' with the creation of the debt. It is thus : [His Honor read it.] Now, although this was not then signed by Miss Darton, yet it is probable that, as she so intended the transaction, and as she received the doc- ument, she would be deemed to have assented to it, even without signing it. But in fact she afterwards signed it. Mr. Moore there- fore became a trustee of the amount for Miss Darton during her life, and for Ann Dye after Miss Darton's death. FARLEY V. TURNER. In Chancery, before Sir R. T. Kindersley, V. C, June 7, 1857. [Reported in 26 Law Journal, Chancer i/, 710 ] In December, 1856, Messrs. Farley, Turner, and Jones carried on the business of bankers at Kidderminster, and on the 0th of that month Mr. Goodwin, a customer of the bank, who had then a balance of £942 in the bank, paid in a further sum of £707. At the same time he gave specific directions to the clerk that £500 of this money was ' So much of the case as relates to the donatio mortis causa is omitted. Both docu- ments were given by Miss Darton, when on her death-isud, to Ann Dye, to be deliv- ered at her death to William Moore in forgiveness of the debt. The gift was held effective as to the document for £500. — Ed. SECT. I.] FAELEY V. TUKNER. 41 lodged for the purpose of paying a bill which would become due at Messrs. Kobarts & Co.'s on the 14th of December. He also wrote out the following notice, which he left with the bank clerk : " Messrs, Farley, Turner, and Jones, Advise Messrs. Robarts, Curtis, & Co. to pay, as under, my ac- ceptance, dated October the 11th, at two months, due December the 14th, to J. & C. Sturge. £500. D. AV. GooDwix." In pursuance of these instructions, advice was immediately for- warded by the Kidderminster Bank to Messrs. Overend and Guruey to pay £500, part of the produce of various bills sent to them to dis- count, to Messrs. Robarts & Co. to meet Mr. Goodwin's acceptance. This was done on the 11th of December, and on the morning of the 12th Messrs. Robarts & Co. received information of the death of Mr. Turner, one of the firm of Farley, Turner, and Jones, which took place on the evening of the 11th after the bank was closed; and the firm having ceased to carry on business, the £500 was not applied in pa}'- ment of the acceptance of Mr. Goodwin, but was subsequently paid over to the representatives of the estate. It further appeared that the £707 lodged at the Kidderminster Bank by Mr. Goodwin was carried to his general banking account. A suit was instituted for the administration of the estate of Mr. Turner, and a question was now raised upon an adjourned summons from chambers, whether the £500 so paid to Messrs. Kobarts & Co. belonged to Mr. Goodwin "or to the general creditors of the bank. Mr. liaily and Mr. ElderLon appeared for Mr. Goodwin. Mr. Glasse and Mr. Eddis for the creditors of the bank.i KiNDERSLEY, V. C. I think that the claima.nt is entitled to the £500 flpecifically. I am fearful lest I should be influenced in my decision by this being a hard case, since hard cases often make bad law, but still I feel a strong conviction that it will be in accordance witii tiie law to allow the claim. Tiie matter stands in this way. Goodwin having to pay a Itill which he had accepted, payable at Robarts & Co., thought fit to pay into the hands of his l)ankers, INIessrs. Farley, Tur- ner, and .Tones, a sum of £707 in adilition to the balance then standing to his credit. According to the statouient in tiic case, it apjjcars tluit at the time of paying in tiie £707 Goodwin told the ch-rk that £500 of this money was to be applied for the specific purpose of meeting an acceptance, payable at Robarts & Co.'s, to become due on the 14tli. Goodwin at the same time signed the notice before stated. Now, what was tlie effect of tins dirciction to the bankers? Goodwin in effect said, " Tliere is a bill wliich I want paid at Kobarts «& Co., therefore send them £500 of this money and advise them to apply it in payment of this bi'l." The direction is accepted by the Ijankers, or ' The arguments of connHcl .are omittecl. — Kd. 42 IN RE barned's banking 00. [chap. I. by their clerk, which amounts to the same thin*, and the clerk did what appears to be usual. There was no negligence on his part ; at the same time he placed the whole amount of £707 to Mr. Goodwin's general banking account. He might certainly have sent up a check for £.300 to Messrs. Kobarts & Co., and placed the remaining sum to Mr. Goodwin's account ; but he took the ordinary course and sent up the £500, debiting IMr. Goodwin's banking account with that sum, and they informed Robarts & Co. that such a bill would be presented. Now, it so happened that the Kidderminster Bank hail other bills, more or less under similar circumstances, which they wanted paid at Robarts's bank, and they sent up a batch of bills to Messrs. Overend and Gurney for them to discount, and directed them to pay the amount into Robarts & Co.'s bank for the purpose of meeting other bills, as well as that for £500. It appears to me that the course pursued was the same as if, having no occasion to pay more than the £500 bill, they had simply sent up the specific amount with a direction to pay that particular bill. It is true that the money was not ear-marked as if it had been locked up in a box, but it is a portion of the £707 which had been paid in expressly for the purpose of meeting the bill for £500. The facts of this case differ, I think, from the cases cited. I admit that the money is not a particular deposit with the bankers, but it is money placed in their hands to be applied in a particular way. What I now decide will not trench upon the authorities which decide that money paid into a banker's is not a deposit which you may receive back in the identical notes and sovereigns, but that it is a debt. That is quite a different case. Under the circurnstances, I am of opinion that the £500 belongs specifically to Goodwin, and not to the general creditors of Mr. Turner.^ The costs will come out of the general estate. In re BARNED'S BANKING COMPANY (Limited). MASSEY'S CASE. In Chancery, before Lord Romillt, M. R., May G, 1870. [Reported in 39 Law Journal, Chanceri/, 635.] A BILL of exchange for ,£185 drawn by Massey on a Mr. Fox was by the latter accepted, payable at the office of Messrs. Prescott & Co., the correspondents in London of Barned's Banking Company. In pursuance of an arrangement with Fox, Massey, on the 17th of April, 18G5, (being the day before the bill became due,) paid into the office of Barned's Banking Company at Liverpool (with which neither Massey nor Fox kept any account) the proper amount to be remitted 1 Fisher v. Miller, 7 Moore, 527 ; St. Louis i'. Johnson, 5 Dill. 241 ; Drovers' Bank V. O'Hare, 119 111. 646; Union Bank v. Dumond, 33 111. Ap. 102; Cutler v. American Bank, 113 N. Y. 593 Accord. — Ed. SECT. I.] IX EE BAENED'S BANKING CO. 43 to Prescott & Co., in order to take up the bill on its becoming due. On the following day the bank stopped payment without having made the remittance to Prescott & Co. ; the bill was in consequence dis- honored, and was subsequently paid by Massey, who now claimed in the winding up of the bank to recover the whole amount paid to it for remittance to London as aforesaid. Mr. Roxburgh and Mr. Badcock, for Massey, relied on Farley v. Turner, submitting that their case was stronger than that of the cred- itor in that case, inasmuch as here neither drawer nor acceptor was a customer of the bank. Sir R. Baggallay and Mr. KeJceioich, for the ofiicial liquidator of the company, were not called upon. The Master of the Rolls. This is a different case from Farley V. Turner. There the countr}'^ bank, after receipt of the mone}'', and instructions from Goodwin to pay the bill which was about to fall due at the office of their Loudon correspondents, Robarts & Co., remitted bills to Overend and Gurney for discount, directing the latter to hand the proceeds to Robarts & Co., to provide them with funds to meet the bill. Robarts & Co. accepted the money for the purpose, but afterwards, having heard of the stoppage of the country bank, held their hands, and allowed the bill to be dishonored. The question then arose, for whom they held the money provided to meet the bill, whether for the general creditors of the country bank, or Goodwin, and it was held to be for the latter. There the country bank had applied the money, and the town agent had received it for the spe- cific purpose. Here there was no application of the money, and Mr. Massey has no lien, but merely a right to prove along with the general creditors.' 1 .Johnson v. "Whitman, 10 Abb. Pr. n. s. Ill Contra. A dopo.sit of nioiK-y in a bank, wliicli agrees in coupideration thereof to meet a lia- bility frtjin the dcpoHitor to a tiiird person is often regarded as a trust. But, in the absence of evidence that the money was delivered as a special deposit, the transaction does not create a tru.st, but only an oblitration of the banker to tlic depositor to pay out of its general assets the claim of the tliird person. The dejjositor may sue in special astumfisil for the breach of this obligation. Hill v. Smith, 12 M. & W. G18. Whether tlie third person may sue on tliis promise will dc'jtond upon the law, in a given juris- diction, as to priimises to one person of performance tromi.seo may defeat the beneficiary's right by a release or modification of the banker's duly at any time before the beneficiary ha.s expre.s.sed his a.s.sent to the original obligation. Moore V. Meyer, 57 Ala. 20, 22 {semhir); Mayer v. Chattahoochee Hank, 51 (in. 325; Hrock- meyer r. Nat. Hank, 40 K.as. 370, 744; Siinimton t: First Hank, 24 Minn. 210; Hnt- ler V. Duprat, 51 N. Y. Sup'r Ct. 77 ; Tl'Una Hank v. Fourth Hank, 40 N. Y. 82; First Bank v. Higbeo, 109 Pa. 130. But sec, contra, lie Lo Blanc, 14 Hun, 8. If there ia a mere deposit with directions to the banker, but no agreement by him 4A STEELE V. CLATvK. [CIIAP. L STEELE V. CLARK. In the Supreme Court, Illinois, June Term, 1875. [Reported in 77 Jllinois Reports, 471.] ]\Ir. Justice Breese delivered the opinion of the Court. This pro- ceeding was commenced before the County Court of Clinton County, and taken by appeal to the Circuit Court, wherein a judgment was rendered for the plaintiffs for four hundred and forty-four dollars, and costs, from which judgment tliis api)eal is prosecuted .by tlie defend- ants. It is a case in which the administrator of one Thomas Moore, deceased, presented a claim for allowance against the estate of John Brewster, deceased, for one thousand dollars. The county court allowed the claim to the extent of seven hundred and seventy-seven dollars, and, on appeal to the Circuit Court, the same was reduced to the above sum of four hundred and forty-four dollars. A brief statement of the facts will show that this judgment ought not to stand. It appears that Thomas Moore, the father of Tliomas Moore in behalf of whose estate this claim is prosecuted, died in 1852 or 1853, leaving an estate in land, which descended to his son Robert Moore, this Thomas Moore, and a granddaughter, Mary Stephens ; that, in 1850, Thomas Moore the younger, then about twenty years of age, left this State for California, and has not been lieard from since 1866. In 1853 proceedings were instituted for a partition of tlie estate of Thomas Moore, senior, and one Alfred Tucker was appointed a com- missioner to make partition and pay over the proceeds to tiiese several heirs, each share amounting to four hundred and forty-four dollars, which the commissioner received in money, and paid to John Brewster, deceased, the guardian of Mary Stephens, her share, to Robert Moore his share, and, without any autliority whatever as appears, paid to Robert his brother Tliomas's share. In 1859 or 1860, Robert Moore, being in debt to his brother Thomas in this sum of four hundred and forty-four dollars, and also to other parties, agreed to sell his farm to Brewster to pay his debts, and among them this debt to his brother Thomas. For what price the farm was sold does not appear. Brewster's administrator proved one payment of more than two hun- dred dollars to one Fouke, a creditor of Robert, and offered to show for what the farm was sold by Robert Moore to him. This evidence the court refused to admit. The defence was the Statute of Frauds and Perjuries and the Statute of Limitations. to pay out of Tiis general assets the depositor's liability to a third person, the last has, obviously, no right against the banker. Ex parte Heyvvood, 2 Rose, 355 ; Grant r Austen, .3 Price, 58 , Seaman v. Whitnoy, 24 Wend. 260; Lane v. Magdeburg (Wist 1891), 51 N. W. R. 582 ; Caisse v. Tharp, 5 Can Pr R. 205. —Ed. SECT. I.] STEELE V. CLAKK. 45 To sustain the recovery, it is urged by appellee that this was a trust fund, and the recovery not barred by the Statute of Limitations. It is claimed and argued by appellee that Brewster, in his lifetime, had become security for the payment of the money received by Eobert Moore, belonging to his brother Thomas, which fact, they insist, gives it the character of trust money, and not barred by the Statute of Limitations. X careful examination of the record betrays the existence of no such fact. Neither Douglierty, Dill, the Clarks, nor Mrs. Pratt, called for appellee, state au\'thiug of the kind. The sim- ple fact is, that Brewster, on the purchase of Robert Moore's farm, undertook to pay this debt Robert then owed his brother Thomas. As Dougherty states it, Brewster told his brother he had bought Robert ^loore's farm, and had become paymaster to Thomas for Robert Moore. ^This was in 18G0. At this time, the relation of these parties was that of debtor and creditor. It has been settled, by repeated decisions of this court, that, in case of simple contracts, the person for whose benefit a promise is made may maintain an action in his own name upon it, although the consid- eration does not move from him. Eddy v. Roberts,^ Brown v. Strait,'^ Bristow V. Lane,^ where the English and American authorities are considered. In 18G0, when this promise was made by Brewster to Robert Moore, admitting it was made, Thomas Moore had a clear right of action against Brewster to recover the amount, had he chosen to accept Brewster as his creditor, and, if dead, his administrator had a right of action for five years thereafter. These proceedings were instituted more than thirteen yeare thereafter, and some years after the death of Brewster. Under this state of fact, we are at a loss to perceive why the claim was not barred by tlie .Statute of Limitations. We fail to see in the transaction any indication of a trust, to any greater extent than any ordinary assumpsit by one person, for a valuable consideration, to pay a debt lie owes to a third i)art3', instead of pa^'ing to tlie party with whom he contracted. A court of equity has jurisdiction in all cases of strict trust, liut where a mere confidence is reposed, or a credit given, it will not exer- cise such jurisdiction. As this Court said, in Doyle v. INIurphy,! the various affairs of life, in ahnost every act between individuals in trade and coiiiiiieice, involve tlie reposing of confidence or trust in eacli otlirr, and yet it has never been SMi)posed that, because such confidence or trust in tlie integrity of another lias been extended and abused, there- fore a court of efpiity would, in all such cases, assume jurisdiction. It is true, as there saifl, whon property is conveyed or given l)v one person to another, to hold for the use of a third ])erson, such a trust would tlicref)y be created as would give equity jurisdiction to compel the application to the jjurposes of the trust. But such is not this ^ 17 III, 505. 2 19 ill. 89 » 21 ib. 194. ■» 22 ib. 502. 46 STEELE V. CLARK. [CHAP. L case. Here was the sale of a farm by the owner, to pay his debts, among which was this debt due his brother Thomas, and whicli Brew- ster assumed to pay. It is an ordinary case of debtor and creditor, and the Statute of Limitations was a bar to a recovery. This money, when in the hands of Tucker, the commissioner, was n. trust fund, from which he had no right, of his own mere motion, to part, and place in the hands of Robert Moore, who is not shown to have had any authority to receive it. There can be no doubt the estate of Thomas Moore has a right of action against Tucker, to recover this money, with interest. There are some objections made on excluding the testimony of Steele, one of the administrators of Brewster, called by the defence. AVe see no grounds for excluding his testimony, he being called to state what he knew of the case before he became administrator, and afterwards. At first blush he seems to have been competent, not being within any of the exceptions of section 2, chapter 51, R. S. 1874:, title " Evidence and Depositions." It was also error to exclude the testimony of French, as offered by appellant, and also that of Parks, as to the price to be paid for the farm, and how it was paid. For the errors above discussed, the judgment is reversed and the cause remanded. Judgment reversed.'^ 1 Re Empress Co., 16 Ch. Div. 125, 127, 129, per Jessel, M.R. ; Douglass v. Martin, 103 111. 25 (no relief in equity) ; Arnwine v. Carroll, 4 Hal. Ch. 620 (no relief in equity) ; Kobinson v. Denson, 3 Head, 395, 397 (semUe) Accord. But see, contra, Albretch v. Wolf, 58 HI. 186 (Statute of Limitations no bar) ; Car ley V. Graves, 85 Mich. 483 (plaintiff not obliged to come in with general creditors in case of bankruptcy). , The distinction between a trust and a purely personal obligation in the nature of a debt is illustrated by certain cases of assignment of partncr.ihip assets to a partner. If the assignment is upon trust to pay out of the as.sets the firm creditors, they will be preferred to the separate creditors of the assignee partner. Payne v. Hornby, 25 Beav. 280, Topliff v- Vail, 1 Harriiig. Ch 340, Renfrew v. Pearce, 68 111. 125; Parker v. Merritt, 105 111. 293, Kobinson v. Roose (111. 1891), 28 N E. R. 821 , Tal- bot V Pierce, 14 B. Mon 195 ; Harmon t- Clark, 13 Gray, 114, Wildes v Chapman, 4 Edw. Ch. 669 ; Deveau v. Fowler, 2 Paige, 400 (see Robb i;. Stevens, 1 Clarke, Ch. 195) ; High v. Lack, Phill. Eq (N Ca.) 175 , Buck Co. v. Johnson, 7 Lea, 282, Rogers V. Nichols, 20 Tex. 719; Shackelford v. Shackelford, 32 Grat. 481. If,.on the other hand, the assignment to the partner is absolute, the assignors being content to take the assignee's personal agreement to pay the firm liabilities, and if the a.ssignment is not fraudulent, the firm creditors will have no greater rights against the firm assets so transferred than ngainst any other assets of the assignee partner And if that partner becomes insolvent, the firm creditors will either get nothing until the separate creditors are paid in full , (Et parte Freeman, Buck, 471 ; Ex parte Appleby. 2 Dea. 482; Thomas v Shillilteer, 1 M. & W. 124; Re Isaacs, 3 Savvy. 35; Robb r Mudge, 14 Gray, 534, Wild v Dean, 3 All. 579; Scull v. Alter, 16 N. J. 147;) or, in jurisdictions where a stranger to the promise may sue tlie promisor, they may share ratably with the separate creditors Re Downing, 3 N. B. R. 748 ; Re Long, 9 N B. R. 227 ; Re Rice. 9 N B. R. 373; Re Collier, 12 N. B. R. 266 ; Re Lloyd, 22 Fed. Rep. 88; Ho}-t i; Murphy, 18 Ala. 316; Devol v. Mclnto.sh. 23 Ind 529; Dunlap v. Mo Neil, 35 Ind. 316; Goudy v. Werbe, 117 lud 154 (semble). — Eu. SECT. I.] m'FADDEN V. JENKYNS. 47 M'FADDEN v. JENIvYNS. In Chancery, before Lord Lyndhurst, C, June 21, 22, Novem. BER 4, 1842. [Reported-in 1 Phillips, 153.] In the mouth of February, 1841, Thomas Warry lent the sum of ^^500 to the defendant Jenkyns. In the month of December fol- lowing, Thomas Warry died, and the defendant George Warry, having shortly afterwards, as his personal representative, brought an action against Jenkyns to recover the £500, this bill was filed, alleging that the money was originally intended to be repaid in a short time, but that, soon after the loan had been made, Thomas Warry sent a verbal message to Jenkyns by one Bartholomew, a common friend of theirs, desiring him no longer to consider the money as due to hnn, Thomas Warry, but to hold it "upon trust for the plaintiff, to be at her absolute disposal, for her own use and benefit." That Bartholomew delivered the message, and Jenkyns accepted the trust ; and that the transaction was communicated to the plaintiff both by Thomas Warry and by Jenkyns, and that Jenkyns afterwards, during the lifetime of Warry, and witli his knowledge, paid to the plaintiff the sum of £10 in part execution of the trust ; and that Thomas Warry had never afterwards demanded payment of the money, or any part of it. The bill prayed that it might be declared that, under those circum- stances, Jenkyns became and was a trustee of the £500 for the plain- tiff, and that he might be decreed to pay the £490 residue thereof to the plaintiff, and that the defendant George Warry might be restrained from further proceeding in his action against Jenkyns. The case made by the bill was verified by the aflidavits of the plaintiff, Bartlioloniew, and Jenkyns, and upon those allidavits Vice Chancellor Wigram granted an injunction to restrain the prosecution of the action until the hearing of the cause, the plaintiff submitting to pay the £500 mto court. The defendant George Warry now moved, by way of appeal, be- fore the Lord Chancellor, that the Vice Chancellor's order might be discharged. Mr. Wukcfu'hl and Mr. lunn/oii, in support of the appeal motion. Mr. Shnrpe and Mr. G. Jinssell., contra.^ Tmk I>oi!I> Chancellor. This was an appeal from a judgment of Vice (Jhaiifcllor Wigram,^ upon a motion for nn iiijuiution to stay proceedings at law. The facts stated in siipiiort of the motion were shortly these, 'i'he trstator, Thomas Warry, liad lent a sum of .£'500 to the defendant -Jenkyns, to lie returned within a short period. ' The argumciit.s of ronnsol are omitted. — Eo. 2 Keported iu 1 Ihire, 458. — Eu. 48 m'fadden v. jenkyns. [chap. i. Some time afterwards AVarry sent a verbal direction to Jenkyns to bold the j£500 in trust for Mrs. M'Faddcn. This he assented to, and, upon her application, paid her a small sum, £10, in respect of this trust. The main question was, whether, assuming the facts to be as stated, this transaction was binding upon tlie estate of Tliomas Warry. The executor had brought an action to recover the .£500 so lent to Jenkyns. It is obvious that the rights of the parties could not, with reference to this claim, be finally settled in a court of law ; and, if the trust were completed and binding, an injunction ought to be granted. Some points were disposed of by the Vice Chancellor in this case, which are indeed free from doubt, and appear not to have been con- tested in this Court, viz. that a declaration by parol is sufficient to create a trust of personal property ; and that . if tlie testator, Thomas "Warry, had, in his lifetime, declared himself a trustee of the debt for the plaintiff, that in equity would perfect the gift to the plaintiff as against Thomas Warry and his estate. The distinctions upon this subject are undoubtedly refined, but it does not appear to me that there is any substantial difference between such a case and the pres- ent. The testator, in directing Jenkyns to hold the money in trust for the plaintiff, which was assented to and acted upon by Jenkyns, impressed, I think, a trust upon the money which was complete and irrevocable. It was equivalent to a declaration by the testator that the debt was a trust for the plaintiff.^ The transaction bears no resemblance to an undertaking or agree- ment to assign. It was in terms a trust, and the aid of the court was not necessary to complete it. Such being the strong inclination of my opinion, and corresponding, as it appears to do, with that of the learned judge in the court below, and with the decision of the Master of the Eolls in the case to which he refers,^ I cannot do otherwise 1 Lord Lyndhurst is not alone, among eminent jndges, in failing to discriminate between a trust and a debt. Lord Crauworth, in Burrowes v. Gore, 6 H. L. C 907, 947, thought au agreement to give a sum of money as a marriage portion made the obligor a trustee, " because, if a person agrees to give a sum of money as an induce- ment to anotlier to marry his daughter, and that marriage takes place, in that case the parent who so agrees to give the money is considered as holding the money upon trust." Lord Chelmsford seems, p. 942, to have entertained the same view. But this opinion was conclusively answered by two of their associates. . Lord St. Leonards said, p. 951 ; " It is ratlier difficult to say how he is to be trustee *of his own propertj-. If he had agreed to give his own estate, or any tangible thing that was actually marked out, then of course he would have become a trustee, because he would have agreed to give and settle that identical property ; but if he agrees to pay a sum of money out of his own assets, I do not see how that can constitute him a trustee to bind him in all respects in that relation." Lord Wensleydale, p. 968, is even more explicit. "The obligor held notliing in trust. lie is, as he would 1)0 in the otiier supposed cases, a debtor merely. It seems to me, with great rej. Chri.sty, .3 I?cav. 2.18; Mnert v. MoMsard, 1 Moo. & P. 8; Hoberts r. Roberts, 12 .Iiir. n. fl. 071 (rovcr.sing s. c. 1 1 Jnr. N. s. 992) ; Parker i: Stones, 38 L. J. Ch. 40; Mincliin v. Mf-rrill, 2 ICdw. 333, 339 {spinlilc) ; Eaton v. Cooke, 25 N. J. Ef|. .55; Ilnrlbnt i;. Unrllmt, 49 Ilun, 189, -th^ro was, as in the principal case, a novation, and the hcMioficiary wius successful. See also Owings u. Owiugs, 1 liar. & G. 484. In Vandcnherg n. Palmer, 4 K. & J. 204, Wood, V. C,"., found sullicicnt evidence of intention on the part of the creditor to make /i/mdc//" trustee. In Paterson v. Murphy, II Flare, 8h, a n)ortj;af;ce 1)V a certiiin writiii^r directed his niortpjagor to invest. £200, part of the mortgage delit, when it hecaine due, in consfds, and after the decease of the mortgagee to transfer the consols and pay the dividends to certain persons n.'unod. Before anv investment was made, the mortgagee connfermande•'' trusts. See, further, Lambe v. Ortou, 1 Dr. & Sm. 125 ; Maguire i;. Dodd, 9 Ir. Ch. 452. — Ei>. 4 50 IN RE caplen's estate. [chap, l directed him after her own death to pay the interest to Gainor Bulbeck diu-inii her life, and to divide the principal sum among her said daugh- ters after her decease. The case was verified by the affidavit of Morns Stening, and Gainor Bulbeck and her daughters deposed that Ann Caplen had in similar terms communicated to them her intention with regard to the £300. The question whether this direction created a trust of the £oOO was, by arrangement, raised on a summons in a suit for the administration of Ann Caplen's estate, which summons was now adjourned into court. Mr. Golt^ for Gainor Bulbeck. A parol declaration is enough to create a trust of personal property. The direction to hold the £300 for Mrs. Bulbeck and her children was equivalent to a declaration by the testatrix that the debt was to be held on trust for them. M'Fadden V. Jenkyns. [The Master of the Rolls. The difficulty you have to contend with is, that the note was payable on demand. As payment was not demanded, there was no debt.] The direction was equivalent to a demand. Instead of saying, " Pay me," the testatrix said, "Pay my sister and her daughters after my death " ; and the debtor assented. Even admitting that, strictly speak- ing, 3'ou cannot create a trust unless you confer a legal title on the trustee. Richards v. Delbridge. Here a legal title was, in fact, con- ferred. The obligation on a promissory note payable on demand may be discharged by parol. Foster v. Dawber.^ What took place was equivalent to a release of the debt, in consideration of the debtor agreeing to apply the money as directed. The testatrix did not intend to release the debtor, except upon terms of payment to these persons. The money was at home in the debtor's hands, and there was no need or indeed power to give him a right to sue. The testatrix, therefore, did all in her power, ^ave the formality of giving up tlie security, to create a trust, and I submit that a trust was well created. Mr. B. B. Swan., for the executors, was not called on. The Master of the Rolls. The evidence does not satisfy me that Mrs. Caplen intended to create an irrevocable trust. Whether she did or not, it is clear that at law she remained owner of the note, and did not therefore create a complete trust. The question that I have to decide is, whether the direction to Mr. Stening was enough to make him a trustee. Mr. Colt argued that it was, for he said the direction impressed a trust on the money, and a declaration of trust by the legal owner was not wanted. I think, however, that a mere agreement on the part of the debtor to apply the money according to the direction of the creditor will not do. There is no magic in words, and, as I ex- plained in Richards v. Delbridge, a man may make himself a trustee without declaring that he is a trustee in so many words ; but he must 1 6 Ex. 839. SECT. I.] IN KE CAPLEN'S ESTATE. 51 do something or other that is equivalent to declaring that he is a trustee. la M'Fadden v. Jenkyns, Lord Cotteuham certainly said : " The testa- tor, in directnig Jenkyns to hold the money in trust for the plaintiff, which was assented to and acted upon by Jenkyns, impressed, I think, a trust upon the money which was complete and irrevocable." But I do not think that applicable to the present case, where there is nothing to show that the owner of the note intended to part with her legal title to the money. I think, therefore, that the executors are entitled to require payment of the note.^ 1 Chandler i-. Chandler, 62 Ga. 612; Evans's Estate, 6 Pa. Co. 437 Accord. See also Kelly v. Koberts, 40 N. Y. 432 ; Fairchild v. Feltman, 32 Hun, 398. Gaskell v. Gaskell, 2 Y. & J. 502, is hardly to be supported, as the facts seem to show a corapleto* novation. The case is criticised adversely in Vaudeuberg v. Palmer, 4 K. & J. 204, 214-215. —Ed. 52 ASHLEY V. DENTON. [CHAP. I. SECTION II. A Trust distinguished from a Bailment. ANONYMOUS. In the Common Pleas, Easter Term, 1339. [Reported in Year Book 12 ^ 13 Edward III., 244.] Detinue of chattels to the vahie of £100 against an Abbot by a man and his wife, on a bailment, made by the father of the wife when she was under age, of chattels to be delivered to his daughter, when she was of full age, at her will ; and they counted that he delivered pots, linen, cloths, and £20 in a bag sealed up, &c. — Pole. He demands money, which naturally sounds in an action of Debt or Account; judgment of the count. — Stonford. We did not count of a loan which sounds in Debt, nor of a receipt of money for profit, which would give an action of Account, but of money delivered in keeping under seal, etc., which could not be changed; and if your house were burnt, that would be an answer. — Schardelowe. Answer over. 1 ASHLEY'S ADMINISTRATORS and Heirs v. DENTON. In the Court of Appeals, Kentucky, April 13, 1822. [Reported in 1 Liltell, 86.] Per Curiam. Thomas Denton and wife exhibited this bill in chan- cery against the administrators of Thomas Ashley, deceased, char- ging that said decedent was the son of the female complainant by a 'former husband ; that during her widowhood slie became possessed of sundry slaves, which passed to her from the estate of a deceased 1 A bailment of good.s by A to B, to deliver to C, or for the use of C, gave C, as in the principal case, the right to maintain detinue against B. Y. B. 34 Ed. I. 2.39 {semhie) ; Y. B. .39 Ed. Ill 17 A , Y. B. .3 Hen. VI. 43-20 ; Y. B. 9 Hen. VI. 38-13 ; Y. B. 9 Hen. VI. 60, A-8 ; Y. B. 18 Hen. VI. 9, A-7; Y. B. 19 Hen. VI 41-84; Y B. 21 Hen. VI. 29-13 , Y. B. 39 Hen VI 44-7 ; Y. B. ^ Ed. IV. 8.5 , Y. B. 9 Ed. IV. 52-15; Y. B. 21 Ed. IV, 55-27; Brand v Lifley, Yelv. 164; Evans v Marlett, 1 Ld Ray. 271 ; Atkin v. Barwick, 1 Stra 165; Hill v. Secretan, 1 B. & P. 315; Haille v. Smith, 1 B. & P. 563 ; Berly v. Taylor, 5 Hill, 577 ; Sturtevant v. Onser, 24 N. Y. 538; Edwards v. Campbell, 23 Barb. 423; Brown v. O'Brien, 1 Rich. 268; Magdeburg v. Uihlein, 53 Wis. 165 Accord. — Ev. • SECT. II.] ASHLEY V. DENTON. 53 relative in North Carolina, wliere she resided, and that she removed with them to Kentuckj^, in some of the upper counties ; that she in- trusted the negroes aforesaid with her said son, for the purpose of his going in search of a suitable residence for her, and there making preparations for her family, and then he was to return and move her to it ; that the son took possession of the slaves, for the purposes afore- said, and, to her astonishment, did not return, nor was he heard of for several years, and was then discovered, by a person employed for the purpose of searching for him, to be living, with the slaves aforesaid, in the State of Tennessee. Some time after his discovery, he removed to the new county of Butler in this State, where he resided until his death, in 1817. That, after his return to Kentucky, he refused to sur- render them, when demanded ; that they were increased, and are in the possession of said administrators and heirs. They allege that they are fully able to substantiate said facts by proof, and pray that the restoration of the slaves may be decreed, with payment of the hire. The defendants, in their answer, insisted that there was no equity in the bill, and that the remedy was at law. The court below decreed the slaves to be restored, and the hire to be paid. From this decree the administrators and heirs of Ashley appealed.^ It is now contended that the Chancellor had no jurisdiction of the case, and that the remedy of the appellee is properly at law. On the other side, it is insisted that the claim of the appellants is founded on a trust, and that the son took and held the slaves for the use of his mother, and therefore the Chancellor properly entertained jurisdiction of the case. It is true that uses and trusts are a favored part of the jurisdiction of the Chancellor, and frequently he will, on that ground, decide in cases where the law may be adequate to give relief. But, notwith- standing this acknowledged authority, it cannot be extended to every case where one party has trusted another, or, in other words, placed a confidence which has been abused. If so, every ease of bailment, and every instance of placing chattels by loans or hire, would be swallowed up by courts of equity. Nay, every case where credit was given for del)t or duty would soon be drawn into the sanje vortex. It ought, then, to be confined to cases of controlling legal rights, vested and remaining in trustees, created as such in some j^roper mode, and not l)e extended to all cases of abused conndcnce. If llio case, therefore, of the appollee is to 1)0 tested by the original bill alone, we have no doubt it nuikes out no case for tiie interposition of the Chancellor; that placing the slaves in the possession of her son, for the purpose of preparing and im|)roving her a home, and iiis riglit then to cease, was not such a trust as would sustain tlie bill, and (hat she had a j)l:iin and adequate remedy at law.^ ' Only so miicli of flio r.iMc is Kivon a? rnlatos to tlio point, of jiirisilictioii — Ed. ' I'y tiif- ol'l Teutonic law a l)iiilor'.s rciiUMly iliarred by the statute. Bill dismissed with costs. JACQUET V. JACQUET. In Chancery, before Sir John Romilly, M. R, June 12, 15, 1859. [Reported in 27 Beavan, 332.] The testator was resident in Jamaica. He had two plantations, called "Content" and "Epsom." By his will, dated in 1832, the testator requested his executors to "pay and discharge his funeral expenses and all just and legal demands that might be against him," " with the payment of which (he said) I do charge and make liable all my property in Jamaica both real and personal," &c. " It is my desire, and I do hereby direct, that my executors hereinafter named, or such of them as shall qualify under this my will, do dispose of the freehold of Content plantation, with the buildings thereon," &c., "the moneys arising from the sale thereof to be applied to the liquidation of my debts, and the overplus (if any) to fall mto the residue of my Pettingill, 60 Me. 411 ; Crawford v. Severson, .5 Gill, 443; Greenwood v. Greenwood, 5 Md. .334; Kane v. Bloodgood, 7 Johns. Ch. 90, 116. In Millington v. Hill, 47 Ark. 301, Loder v. Hatfield, 71 N. Y. 92, and Yearly v. Long, 40 Oh. St. 27, a devise of land charged with an annuity was so worded as to impose a personal liability upon the devisee in the nature of a debt. It was held that, as soon as the statute barred the personal claim, the right to enforce the equitable charge was also barred. If the devi.see was in fact a tru.stee, i.e. if the land was devi.sed to him upon tfu.^t to pay the annuity, the case was not within § 24 of the statute of 3 & 4 Will. IV. c. 27. Ward ;;. Arch, A Sim. 472 ; Young v. Waterpark, 13 Sim. 204, 1.5 L. J. Ch. 63 ; Cox V. Dolman, 2 D M. & Q. 592; Playfairs v. Cooper, 17 I5cav. 187; Snow v. Booth. 8 D. M. & G. 69; Knight v. Bowyer, 2 DeG. & J. 421 ; Hrighff v. Larcher, 27 Beav. 130: Obee v. Bishop, 1 D. F. & J. 137 ; Commissioners r. Wylirandt, 7 Ir. Eq. .580. But the rule applied in these cases was materially modified in England by 37 & 38 Vict. c. 57, § 10. Hughes v. Coles, 27 Ch. D. 231. — Ed. 1 12 Sim. 472, 2 13 Sim. 204. \ ■ SECT. III.] JACQUET V. JACQUET. 57 estate. All the rest, residue and remainder of my property in Ja- maica, but subject to the payment of my debts and legacies comprised of Epsom plantation," &c., "and everything else on the plantation or elsewhere in Jamacia, of whatsoever nature and kind," he gave, devised, and bequeathed to certain persons whom he named. The testator died in 1834, and in 1843 the plantations were sold to Philip Jacquet and the money was in court. The Chief Clerk found that a debt of £318 was still due to Spicer, and that he had a claim to that amount on the trust funds. The question was, whether the real estate was charged with the debt, and whether his remedy against the estate and the produce was or not barred by the Statute of Limitations. The plaintiff took out a summons to vary the certificate by finding that he had no claim on the trust funds. The Master of tde Rolls. I think that this will created a trust for the payment of debts as regards the Content plantation ; but with respect to the other plantation there is a mere charge of debts. J am of opinion that the statute does not apply as regards the Con- tent estate ; but I wish to consider whether the transaction of 1843 amounted to a sale to Mr, Philip eJacquet, in consideration of his pay- ing a sum of money into court ; because, if it did, I am of opinion that the fund is affected by the trusts specified by the will, and is now applicable to the payment of the debts. I came to the conclusion that the debts were charged on the whole of the property, but the trust was limited to the Content estate, which the testator directed to be sold by his executors, and the produce applied in payment of his debts. The testator died in IKU, and, under the Statute of Limitations, passed in 1837, the lapse of twenty years bars any power of recovery in respect of the charge,' but it docs not bar the riglit of recovery as regards the Content estate, as to which a trust was created. - 1 think the result of the transaction in 1843 is, that Philip Jacquet is the purchaser for value of the Content estate, and from that time the statute begins to run in liis favor under the 25th section of 3 & 4 ' Francis v. Grovcr, 5 Ilaro, 39; l'rou.'), n. 1. 2 Truxt to pill/ fycr/ririis. — Gousli v. Bult, 16 Sim. 323 ; Watson v. Saul, 1 Giff. 188 ; Thom.son v. Kiwtwood, 2 Aj)p. Cas. 2l.'>. Trust to pay IMts. — Hughes v. Wynne, T. St, U. 307 ; Blower v. Blower, .5 Jur. N. fl. 33, Kelly r. Kelly. 6 Ir. L. Rec n. «. 222; Dillon r. Cruise, 3 Ir. Eq. 11.70: Blair »-• Nii;;ent„ y Ir Eij K. 400 ; Hunt r. r.ateni.an, 10 Ir. Kf]. U 300; U. S. I'.aiik V. Beverly, I How. 134 ; CarrinRton v. Manning, 13 Ala. 611, 032,640 (srmNi') ; Steele V. Steele, 04 Ala. 438, 400 [s. CO HAMMOND V. MESSENGER. [CIIAP. I. the firm, and that ^Messenger is now indebted to the plaintiff in the said sum of £80 as the assignee of sucli debt. Therefore the debt in ques- tion was, purely, a debt recoverable at law. Then the bill states a notice given to Messenger by the plaintiff to pay the debt to him. It then states that on the 2d of October the plaintitT called on Messenger, and applied to him for payment of the sum of £80, and fully apprised him of the plaintiff's right and title to demand and receive payment of it from him ; that Messenger, for the first time, pretended that the plaintiff was not entitled to receive the debt, but that he was bound to pay it to Wilks and Wooler. That, of itself, creates no equitable ground. The bill then alleges, in the usual manner, that the plaintiff had ap- plied to Messenger for the payment of tlie debt, and that Messenger, combining and confederating with Wilks, had refused so to do, and pretended that there was no such debt : that, however, gives no equity. Then it charges that Messenger, on receiving notice of the plaintiff's right and title to the debt, became and still was a trustee of it for the plaintiff. That again does not make him a trustee, that is to say, such a trustee as the plaintiff has a right to sue in equity, unless the whole circumstances of the case taken together, do show that the plaintiff has a right to sue in equity. When I come to the prayer, I find that it, first of all, prays, " that Messenger may be decreed to pay to the plaintiff" the sum of £80, so due to the firm of Wilks and Wooler as aforesaid, or, if necessary, that an account may be taken." Now no case whatever is stated to show the necessity for an account, and therefore it must, of necessity, stand as a mere prayer that Messenger may be decreed to pay the debt. It tlien proceeds as follows : " or that the plaintiff may be at liberty to use the name of the defendants, Wilks and Wooler, in an action at law to be brought by him against Messenger." There is, however, no case stated which shows that Wilks & Wooler have at all interfered to pre- vent, or that they intend to prevent the plaintiff from using their names at law. It seems to me that this case is altogether denuded of those special circumstances, the existence of which is the only ground for this Court to lend its aid to a party who, like the plaintiff, has taken an assign- ment of a debt ; and, consequently, the demurrer must be allowed.^ Demurrer aUoived, ivith liberty to the plaintiff to amend Jiis bill. 1 Cator V. Burke, 1 Bro. C. C. 434 ; Keys r. Willia-ms, .3 Y. & C. Ex. 462 ; Clark v. Cort, Cr. & Ph. 1.54, 159 (semble); Kawson v. Samuel, Cr. & Ph. 161, 178 {semhla)' ; Wilson V. Short, 6 Hare, 366, 382 , Bolton r. Powell, 14 Beav. 275, 2 D. M. & G. 1, 8. c. ; I)e Pothonier v. Matto.s, E. B. & E. 461, 467; Hoskin.s v. Holland, 44 L. J. Ch. 273; Roxburghe v. Cox, 17 Ch. D. 520, 526 {spmhie) ; TIayward v. Andrew.s, 106 U. R. 672 ; Chicago Co. t: Xichol=i, 57 111 464; Adair v. Winchester, 7 Gill & ,J 114; Walker v. Brooks, 125 Mass. 241 (correcting the statements in 2 Story, Eq. .Jur. § 1057o, and Story, Eq. PI. § 153) ; Carter v. United Co., 1 Johns. Ch. 463; Ontario Bank v. Mum- ford,' 2 Barb. Ch. 596, 615; Smiley n. Bell, Mart. & Y. 378 ; Moseley v. Bonsh, 4 Rand. 892 Accord. The common law right of the assignee to use the assignor's name ii SECT. IV.] EGBERTS V. LLOYD. 61 ROBERTS V. LLOYD. In Chancery, Before Lord Langdale, M.E., February 18, March 21, 1840. [Reported in 2 Beavan, 376.] ' On the 2.oth of October, 1821, Lord Mostyn and Mr. Mostyn executed a bond in a penal sum for securing to Rebecca Roberts the sum of £1,000 and interest; and on the 12th day of February, 1828, Rebecca Roberts, having three daughters, Jane, the wife of James Batten, the plaintiff, Maria Catherine Roberts, and the defendant Margaret Roberts, executed a deed poll, whereby, after reciting the bond, and that the sum of .£1,000 remained due thereon, and that she was desirous of making provision for her daughters and the children of her daughter Jane, she assigned to the defendant David Lloyd, his executors, administrators, and assigns, the said bond and the money due thereon, and her right and interest in and to the same, on trust to permit her, Rebecca Roberts, to receive the interest thereof during her life, and after her death to pay her daughter Jane the sum of i?333 Qs. 8d., being one third of the said sum of ^^1,000, and as to the sum of ,£G6fi l^.s-. 4r?., the remaining two thirds of tlie money due on the bond, on trust to place out the same in government or other good securities, or to allow the same to remain on the present secu- rity, and to permit her daughter, the plaintiff, and the defendant Margaret, to receive the interest and dividends thereof during their joint lives ; and after the death of either to permit the other to receive the interest of one moiety thereof, and to pay the other moiety to the children of Jane Batten ; and after the death of the survivor of the plaintiff and her sister Margaret, to divide the remainder of the £1,000 amongst the children of Jane Batten ; and the deed poll contained a power of attorney to enable David Lloyd to get in the debt. rccognizod also in T'liillips v. Wilson, 25 111. A p. 427 ; Troedor v. Hyams, 1.V3 Mass. .MG; Coffey v. White, 17 I'liila. 230. Sec .also Aulton i'. Atkins, 18 C. B. 249, 2G0. Taylor r. Heeso, 44 Mi.ss. 8'J ; Townsend v. Carpenter, 11 Oh. 21 , Kerr v. Steeves, 22 Xew Rr. 124 Coniru. The dwtrinc of the prinr-ipal case results from tlio fact tiiattlic so called a.ssi^nmeuc of a chose in action is, in reality, a power of attorney for the attorney's own hcnciit, i. e. the prorurnl'o in rfin sumn of the Hoinan law. 2 \W. (>>ni. 442 ; 1 Siicnce, K(|. .Iiir. 181 ; 3 Harv. L. Kev. 340, .341; Banfill v. Leigh, 8 T. \{. .571 ; Dulhcld c Klwcs, I Bligh. y. H. ."JOfi, per Suj^den ; (Jornrd v. Lewis, L. R. 2 C. P. 305, 309 ; James v. Newton, 142 Ma'\ Merrill, 6 Cush. 282; Papineau v. Naumkeag, 126 Mass. 372; Love v. Fairfield, 13 Mo. 300; Beardslee w. Morgner, 73 Mo. 22; Loomis v. Robinson, 76 Mo. 488; Snperinteudent v. Heath, 15 N. J. Eq. 22 ; Brown v. T)mm, 50 N. J. Ill ; Bower v. Hadden Co., 30 N. J. Eq. 171, 340; Field v. Mayor, 6 N. Y. 179; Stanbery v. Smythe, 13 Oh. St. 495; Jermyn v. Moffatt, 75 Pa. 399 ; Carter ;;. Nichols, 58 Vt. 553 ; Brooks v. Hatch, 6 Leigh, 534 ; S. V. K. Co. V. Miller, 80 Va. 821 ; First Bank v. Kimberlands, 16 W. Va. 555. But in equity the partial assignee is fully protected almost everywhere. Row V. Dawson, 1 Ves. Sr. 331 ; Yeates v. Groves, 1 Ves. Jr. 280; Ex parte South, 3 Sw. 392 ; Ex parte Alderson, 1 Mad. 53, s. c. ; Lett v. Morris, 4 Sim. 607 ; Tibbits v. George, 5 A. & E. 107 ; McGowan v. Smith, 26 L. J. Ch. 8 ; Ex parte Hall, 10 Ch. Div. 615; Ex parte Moss, 14 Q. B. D. 310; Trist v. Child, 21 Wall. 441, 447 (semhle) ; Peugh V. Porter, 112 U. S. 737; Grain v. Aldrich, 38 Cal. 514; Daniel v. Meinhard, 53 Ga. 359; Pomeroy v. Manhattan Co., 40 111. 398; Phillips v. Edsall, 127 HI. 535; Groves v. Ruby, 24 Ind. 418; Lapping v. Duffy, 47 Ind. 51 ; County v. Hinkley, 62 Iowa, 637 {semhle); Ellidge v. Straughn, 2 B. Mon. 81 ; Bank v. Trimble, 6 B. Mon. 599; Exchange Bank v. McLoon, 73 Me. 498; James v. Newton, 142 Mass. 366 {semhle); Canty v. Latterner, 31 Minn. 239; Moody i;. Kyle, 34 Miss. 506; Whitney V. Cowan, 55 Miss. 626 ; Christie v. Sawyer, 44 N. II. 298 ; Superintendent v. Heath, 1 15 N. J. Eq. 22 ; Bower v. Hadden Co., 30 N. J. Eq. 171, 340 ; Shannon v. Mayor, 37 N. J. Eq. 123; Kirtland v. Moore, 40 N. J. Eq. 106 ; Stanbery v. Smythe, 13 Oh. St. 495 {semhle) ; Richardson v. Rust, 9 Paige, 243 ; Field v. Mayor, 6 N. Y. 179 ; Cook v. Genesee Co., 8 How. Pr. 514; Hall v. Buffalo, 2 Abb. App. 301, 1 Keyes, 193, s. c. ; Parker v. Syracuse, 31 N. Y. 376 ; People v. Comptroller, 77 N. Y. 45 ; Risley v. Phenix Bank, 83 N. Y. 318; Etheridge v. Vernoy, 74 N. Ca. 800; Caldwell v. Ilartupee, 70 Pa. 74 (but see, as to claims against a municipality, I'hila.'s Ap., 86 Pa. 179; Geist's Ap., 104 Pa. 351) ; Sykes v. First Bank (S. Dak., 1891), 49 N. W. R. 1058 ; Gardner v. Smith, 5 Heisk. 256 ;' Harris Co. v. Campbell, 68 Tex. 22 ; Railway v. Gentry, 69 Tex. 625; Claflin v. Kimball, 52 Vt. 6; Carter v. Nichols, 58 Vt. 553 {semhle); Burditt v. Porter, 63 Vt. 296 {semhle) ; S. V. R. Co. v. Miller, 80 Va. 821 ; First Bank v. Kimber- lands, 16 W. Va. 555; Browu v. Johnston, 12 Ont. Ap. 190 (semhle). But see, contra, Wilson v. Carson, IS Md. 54; Burnett v. Crandall, 63 Mo. 410-, Loomis V. Robinson, 76 Mo. 488; Rice v. Dudley, 34 ]\Io. Ap. 383; Reed v. Foote, 36 Mo. Ap. 470; Mo. Co. v. Wright, 38 Mo. Ap. 141. (Compare Fourth Bank v. Noonan, 88 Mo. 372, 14 Mo. Ap. 243, s. c.) A partial assignment of a chose in action should be carefully distinguished from a total assignment, partly for the benefit of the assignee, and in trust as to the residue for the a.ssignor, e. g. an assignment by way of mortgage of a claim larger than the mortgage debt. Such a total assignment is a perfect power of attorney. The so called assignee may therefore collect the entire claim at law and retain his own share, but must account for the residue to the assignor. Burliuson v. Hall, 12 Q. B. D. 347; 'lancred v. Delagoa Bay, 23 Q. B. D. 239; Wetmore v. San Francisco, 44 Cal. 294; Tripp i;. Brownell, 12 Cush. 376; Macomber v. Doane, 2 All. 541 ; Darling v. An- drews, 9 All. 106 ; Warren /•. Sullivan, 123 Mass. 283 ; Keys's Estate, 137 Pa. 565. The distinction here suggested was overlooked in Loomis o. Robinson, 76 Mo. 488. — Ed. SECT. lY.] FOGG V. MIDDLETON. 65 FRANCIS B. FOGG, and MARY, his Wife, v. JOHN IZARD MIDDLETON and HENRY MIDDLETON. In the Court of Appeals, South Carolina, February, 1837. [Reported in 2 Hill, Chancenj, 591.] Mrs. Mart Middleton, in her lifetime, conveyed by deed to her second son, Mr. J. I. Middleton, her large real estate ; and by a will, purporting to be her last will and testament, disposing of her personal estate, bequeathed the greater part thereof between her two sous, and gave considerable pecuniary legacies (as is alleged, and which does not seem to be contradicted) to each of her daughters (except Mrs. Manigault, who was dead). Afterwards, she executed another will, and died in 1814, leaving the same in full force, by which she disposed of the bulk of her personal estate to her two sous, subject to certain legacies, and particularly a legacy to each of her daughters of £100 sterling, which was greatly below the legacies under the former will. The personal estate of Mrs. Middleton was appraised at upwards of seventy-one thousand dollars. Some discontents naturally arose in the minds of daughters so slightly provided for by a wealthy parent, who bestowed so large a fortune on her sons. These discontents reached the ears of Mr. J. I. Middleton, with the exaggerated report that the use or the abuse of his personal influence over an aged mother had produced the effect of diminishing her bounty to her daughters, by her last will and testa- ment, to his benefit. Being disturbed by these reports he determined to relinquish the amount to which his sisters would have been entitled under the former will of their motiier, and accordingly executed bonds in trust to his lirother, Mr. Henry Middleton, with conditions for the payment of certain sums for the eldest daughter of each of his sisters, and placed them in the possession of his lirother, ]\Ir. Henry INIiddle- ton. He then went to Europe, aliout 1817, and has renuuned there ever since, leaving his estate, including the personal estate, the slaves derived from his mother's will, in the hands of his brother, Henry, as his attorney and agent ; and to apply the income of the estate to the payment of the debts of her estate, and the legacies under her will. Tho debts have been paid, and the bond to Mr. Izard's family has been l»aid, Init no paynuiut haw l)een made on the l)ond for the oldigor's niece, Miss Mary Rutledge, now the wife of Mr. Fogg, the plaintiff. After many years, applications were; made, by letters to IMr. Henry Middleton, as the agent and attorney of Mr. J. I. INIiddleton, for i)My- meiit, whieh apidications, being unattended to, the bill was filed in this Court, whicli makes this case. Chancellou De Saussuke made a decree for the plaintiffs, from which the defendants appeal. 5 GQ FOGG V. l^iroDLETON. [CHAP. L Petigru, for appellants. Grimke, contra. Chancellor Johnston delivered the opinion of the Court.^ Under the decided cases, the delivery of tlie bond would have been established upon even less evidence than was furnished on the trial. As it is, the proof fully sustains the Chancellor's conclusion on the fact. The law of the case seems to admit of little doubt. Cases have been quoted to show that equity will not aid a mere volunteer, where no legal right has passed, or where the action of this Court is necessary to constitute the relation of trustee and cestui que trust. But the delivery and acceptance of the bond, ipso facto, constituted Mr. Henry Middleton trustee. The bond contained his commission, and set forth his duties. It also vested in him the debt of which it was the evidence ; and if that debt should be detained, he had a legal remedy to recover it. AVherever a trustee has accepted a trust, he is bound to a diligent discharge of his duties. If he holds choses in action, with a clear remedy on them, it is unfaithful in him not to endeavor to enforce them. If he holds a bond, even although that bond is a free gift, he has no right to remit it.^ It never was the law that a trustee was not as amenable to a voluu- 1 A portion of the opinion is omitted, and the statement of the case is abridged. — Eo. 2 Wigram, V. C, states the same doctrine very clearly in Fletcher v. Fletcher, 4 Hare, 67, 74, 75 : " The first proposition relied upon against the claim in equity was, that equity will not interfere in favor of a volunteer. That proposition, thougii true in many cases, has been too largely stated. A court of equity, for example, will not, in favor of a volunteer, enforce the performance of a contract in specie. Tliat it will, however, sometimes act in favor of a volunteer, is proved by the common case of a volunteer on a bond, who may prove his bond against the assets. Again, where the relation of trustee and cestui que trust is constituted, as where property is trans- ferred from the author of the trust into tiie name of a trustee, so that he ha.s lost all power of disposition over it, and the transaction is complete as regards him, the trus- tee, having accepted the trust, cannot say he holds it, except for the purposes of the trust; and the Court will enforce the trust at the suit of a volunteer. According to the authorities, I cannot, I admit, do anything to perfect the liability of the author of the trust, if it is not already perfect. This covenant, however, is already perfect. The covenantor is liable at law, and the Court is not called upon to do any act to per- fect it. One question made in argument has been, whether there can be a trust of a covenant the benefit of which shall belong to a third party ; but I cannot think there is any difficulty in that. Suppose, in the case of a personal covenant to pay a certain annual sura for the benefit of a third person, the trustee were to bring an action against the covenantor; would he be afterwards allowed to say he was not a trustee 1 If he cannot do so after once acknowledging the trust, then there is a case in which there is a trust of a covenant for another. In the case of Clough v. Lambert, 10 Sim. 174, the question arose ; the point does not appear to have been taken during the argu- ment, but the Vice Chancellor of England was of opinion that the covenant bound the party; that the cestui que trust was entitled to the benefit of it; and that the mere intervention of a trustee made no difference." — Ed. SECT. IV.'] FOGG V. MIDDLETON. 67 teer cestui que trust as to one who is not a volunteer. If that were the law, no executor would be accountable to collateral legatees. So that, without going further than Mr, H. Middleton, the plaintiffs have a right to come here to compel him to perform his trusts. But if he is liable, it results that he may be compelled also to sur- render to his cestui que trusts all the legal remedies he possesses. And this puts the plaintiffs in possession of the bond, to all intents, as if it had been drawn to them as obligee, or assigned to them. If it had been drawn to the plaintiffs by Mr. John Izard Middleton, or assigned to them by Mr. Henry Middleton, will it be pretended that the plaintiffs could not recover from the obligor, even if it was given on no consideration? If it had been given on a consideration, which failed, that would be a good defence. But the original want of consideration would be none. If the Court, in this case, travels beyond the case of the trustee and cestici que trusts, and takes cognizance of the liabilities of the obligor, it is at the instance of the defendants, who insisted on his being made a party. Being here at his own instance, the Court wiU, to prcA-ent circuity of action, decree again.st him what he would have been liable to pay the defaulting trustee, or what the plaintiffs could recover if the bond had been assigned to them.-^ The motion is dismissed. Chancellors Johnson and Harper concurred. Chancellor De Saussuke absent, from indisposition. * The right of a cestui que trust of an obh'gation to have a subpoena against his trustee, who refu.sed to enforce the claim, has been recognized from very early times : (1391 ) .3 Hot. Pari. 297 ; Y. B. 2 Ed. I V^ 2-6 ; Ko.se v. Clarke, 1 Y. & C C. C. 534, 548 ; Re Uruguay Co., 11 Ch. T). 372 (semble); Thompson v. H. R. Co., 6 Wall. 134; N. Y. Co. V. .Memphis Co., 107 U. S. 205; Morgan v. Kansas Co., 21 Blatchf. 134; Doggett V. Hart, 5 Fla. 215 ; Mason v. Mason, 33 Ga. 435 ; Forrest i;. O'Donuell, 42 Mich. &56 ; Western Co. v. Nolan, 48 N. Y. 513 ; Wetmore v. Porter, 92 N. Y. 7G {semble) ; Crosbj V. Bowery Bank, 50 N. Y. Sup'r Ct. 453 ; Pha'be v. Black, 70 N. Ca. 379. But for some time the cestui f/ue trust could proceed only against his trustee: Dhcgetoft V. London Co., Mosely, 83, affirmed in 4 Bro. P. C. (Toml. ed.) 436; Fall v. Chaml)ers, Mosely, 193 ; Moticux v. London Co., 1 Atk. .")45, .547. Now, however, the beneficiary i.s allowed, on tlie principle of avoiding multiplicity of a<-tionB, to join the obligor as a defendant with the recu.sant trustee: Fletcher v. Fletcher, 4 Hare, 07 ; Gamly v. Camly, 30 Ch. Div. 57 ; Owens v. Ohio Co., 20 Fed. Bep. 10; Wright v. Mm:k, 95 Iml. 3;J2 ; Halo v. Nashua Co., 60 N. H. 333 ; Do Kay V. Hackensack Co., 38 N. J. Eq. 158 ; Davies v. N. Y. Co., 41 Hun, 492. Sec, further, the analogous cases of procceiiings in eijuity against an executor and a debtor of tho testator: Barker i'. Birch, 1 DeG. & Sm. 376 ; or against a guardian and a debtor to the ward's eatate : Mesmer v. Jeukiua, 61 Cal. 151 ; Frost v. Libby, 79 Me. 56. — Ed. 68 THOMASSEN V. VAN WYNGAAEDEN. [CHAP. L THOMASSEN, Guardian, v. VAN WYNGAARDEN et al. In the Supkeme Court, Iowa, April Term, 1885. [Reported in 65 Iowa Reports, 087.] Action in equity to foreclose two mortgages. From the decree the plaintiff appeals. Bosquet & Earle, for appellants. Gesman & Proutt/ and J. M. St. John, for appellee. Servers, J. The defendant Wyngaarden executed tbe following promissory note : " 81,400. Pella, Iowa, November 11, 1878. " Six years after date, for value received, I promise to pay to Jantie Van Wyngaarden, in trust for Gertruda Geradina Thomassen, Jana Thomassen, Wilhemina Thomassen, Johannes Thomassen, and Jan Thomassen, heirs of Maarke Thomassen, deceased, or order, the sum of fourteen hundred dollars, payable at the First National Bank, Pella, Iowa, with interest, payable annually, at the rate of six per cent per annum from date until paid. Interest when due to become principal and draw ten per cent, and an attorney fee of ten per cent if suit is commenced on this note." The mortgages were given to Jantie Van Wyngaarden in trust for the beneficiaries named in the note. It was pleaded as a defence that the interest up to that time had been paid. The mortgages provided that, in the event the interest was not paid as therein provided, then the whole debt became due. The beneficiaries are grandchildren of Jantie Van Wyngaarden, and are minors, and the plaintiff is their guardian. This suit was commenced in March, 1882, and the court found that there was nothing due at that time. I. Counsel for the appellant insist that there is no sufficient evi- dence showing that the interest due on the note up to January, 1882, has been paid. The defendants introduced in evidence a receipt in the following words, and proved that it was executed by the trustee : " Pella, Iowa, December 22, 1880. " Received of Jan Van Wyngaarden the sum of one hundred and forty-seven dollars, as interest on a certain note, secured by mortgage, to me given by the said Jan Van AV'yugaarden in trust (for the bene- ficiaries above named) ; this being in full up to January 1, 1882. " Jantie Van Wyngaarden." Counsel for the plaintiff insist that the receipt is signed by the trus- tee as an individual, and therefore the beneficiaries are not Imund thereby'. But we think it fairly appears from the receipt itself that the money was received by the trustee as such. It was paid to and SECT. IT.] THOMASSEN V. VAN ■WYXGAARDEN. 69 received by the person to wbom it was payable by the terms of the note, and she will be charged as having received it in her capacity as trustee. II. Counsel for the appellant insist that the trust created by the ex- ecution of the notes and mortgages is a simple or dry trust, and tliat the trustee in such a trust does not have the power to manage and dis- pose of the trust estate, and therefore the beneficiaries are not bound by what the trustee did. A simple or dr}^ trust is defined to be one " where property is vested in one person in trust for another, and the nature of the trust, not being prescribed b\' the donor, is left to the construction of the law." Perry, Trusts, § 520. "There can be but few of these dry trusts ; for, wlien there is no control, and no duty to be performed by the trustee, it becomes a simple use, which the statute of uses executes in the cestui que trust, and he thus unites both the legal and beneficial estate in himself." The trust under consideration is materially different ; for it is so far declared as to cast on the trustee a duty for the performance of which she will be held accountable. It is made the duty of the trustee to receive and collect the interest and the principal when it becomes due. The legal title to the note and mortgages is vested in the trustee. It is her duty to preserve and protect the interest of the beneficiaries. But, in the absence of fraud or collusion, the trustee could satisfy the mortgages and acknowledge satisfaction of the debt, which would be landing on the beneficiaries. It is said that any one dealing with the trustee must see that money paid in the discharge of the trust was properly appropriated ; but we do not think this is so, for the simple reason that the trustee was the legal owner of the note, and authorized to receive payment of both the principal and interest. An adminis- trator in one sense is a trustee for the estate he represents ; and yet he is the legal owner of the notes and mortgages belonging thereto. A person making him a payment is not bound to see that the money is properly accounted for. The rule, it seems to us, should bo the same in the case under con- sideration. The decree of the Circuit Court vmst be affirmed} ' Savrc I'. Weil (Alii. ISOl), 10 S. R. .540 (semhle); MiiniKlorlyn v. Augusta Hank (r;a. IHIM), 14 S. K. I{. .^W; Sherburne v. (Jofxhvin, 44 N. H. 271", Boone v. Hank, 84 N. Y. 8.3. 21 Ilun, 23.') Acrnnt. Compare C. K. Hank v. V. N. Bank, 118 N. Y. 443. — Ed. 70 SCOTT V. JONES. tCHAP. L SECTION V. A Trust distinguished from an Executorship. JAMES SCOTT and Others, Appellants, v. SAMUEL JONES, Surviving Assignee, Respondent. In the House of Lords, Makcii 17, 24, 1835. — August 16, 1838. [Reported in 4 Clark Sr Finnelly, 382.] Lord Ltndhurst.^ In a case of Scott v. Jones, which was heard a considerable time back, the judgment has, from accidental causes, been hitherto postponed. The facts of the case are extremely simple, and the question resolves itself into a mere question of law. It appears that, in 1815, Messrs. Evans and Jelf carried on business in partnership, as bankers, at Gloucester. In that year they became bankrupts, and their effects were assigned under their commission to assignees in the usual manner. Mr. R. Donovan had a running account with the bank, and there was a balance against him at the time of the bankruptcy to the amount of £262 4s. 3c?. R. Donovan in the same year made his will, and b}' that will he disposed of the personal estate he possessed to trustees, for the payment of his debts ; and he also devised to the same trustees what he considered to be his real estate at Tibberton Court ; and he directed that, in the event of the personal estate not being suffi- cient to discharge the debts, a sum should be added for that purpose, to be raised by the sale or mortgage of the real estate of Tibberton. He died in the following 3'ear ; one of the trustees alone proved the will, the other renounced. The trustee who proved the will administered part of the assets, and soon afterwards died, and the ultimate adminis- tration de bonis nan was granted to one of the appellants, the daughter of R. Donovan. She shortly afterwards put an advertisement into the Gloucester paper, directing all persons who either had or conceived them- selves to have any claim against the estate of her father, to send in an account of those claims to Messrs. Bubb, who were attorneys carrying on business at Cheltenham. In consequence of this advertisement, the assignees of the bankrupt sent in their demand, amounting to the sum of £260, against his estate. It appears that no notice was taken of this demand, in consequence of which the assignees commenced an action against Mrs. Scott, one of the appellants, and her husband. To this action the defendants pleaded the Statute of Limitations, and there were then no further proceedings taken in the action. There cannot be a doubt that that was because the Statute of Limitations was a sufficient ^ The statement of facts and arguments of counsel are omitted. — Ed. SECT, v.] SCOTT V. JONES. 71 bar to the action, there being nothing whatever to take the case out of the statute, this advertisement clearl}' not being attended with that effect. In consequence of that, the present bill was filed, demanding an application of the trust funds in payment of the debts of the testator. The defendants, in their answer to this suit, insist on the Statute of Limitations, and the only question is, whether the trust was of such a nature as to prevent the setting up of such a defence. I have mentioned that the testator considered the estate at Tibberton to be real estate. When sold, however, it turned out to be mere leasehold, and to form part of the personalty. Had it been real estate, in that case the plaintiff would have been entitled to recover ; but though part of the personalt}', it is said to be taken subject to the trust, and the question is, whether a trust of this description declared of the personal estate prevents the Statute of Limitations being set up by way of defence, and I am clearly of opinion that it does not, because it does not at all varj- tlie legal liabilit}' of the parties, or make any difference with respect to the effect and operation of the statute itself. The executors take the estate sub- ject to the claim of the creditors : they are, in point of law, the trustees for the creditors ; the trust is a legal trust, and there is nothing what- ever added to their legal liabilities from the mere circumstance of the testator himself declaring in express terras that the estate shall be sub- ject to the payment of his debts. I conceive, therefore, that the cir- cumstance of there being an exi)ress trust in this case docs not make any alteration with respect to the question. And if in ordinary circum- stances, as to personalty, where there was a mere legal liability, the existence of a mere legal trust would not have been an answer to a plea of the Statute of Limitations ; so I conceive that in the present case no alteration can take place, from the existence of an express trust, and that that trust cannot, under these circumstances, be considered as an answer to the statute.^ I am of opinion, thcrclbrc, that the judgment of the Master of the Rolls was tlie correct judgment, and that the judg- ment of the late Lord Chancellor, reversing it, ought to be set aside. As, however, two learned judges have entertained different opinions on tliis point, the decree of the Court below must be set aside, without costs. Judgment reversed ivithoxit costs. ' Freako v. Cranoffldt, .3 M. & Cr. 409 ; Evans v. Twcfidy, 1 Rcav. r).5 ; Cadbiiry v. Smith. 9 Vji .37 ; /{e llephurn, 14 Q. H. I). 3'.»4 ; lie Stoiihciis, 4.3 Cli. 1). 3y a tf.slator ujion his lands fur tlio jjaynicMit of dclits and Icgafic'H would not affw.t tho running of tlio Statute of Liniitati(jus, fiince llio lands would he cliarKcahlo in any event. Carrington v. Manning, 1.3 Ala. 611 ; Steele v. Steele, 64 Ala. 438, 4:>9 ■ Starke v. Wilson, Or. Ala. .STC ; Martin v. Gago, 9 N. Y. .398 ; Trinity Church V. Watson, 50 I'a. ."JIS (c.\j)laining Alf-.xandor '•. McMurry, 8 Watts, :>04). But Bee Temjdeton v. Tompkins, 45 Miss. 424 ; Abbay v. Hill, 04 Mis-s. 340. — Ed. 72 IN RE SMITH. [chap. L. In re smith. HENDERSON-ROE v. HITCHINS. In the Chancery Division, July 2, 1889. [Reported in 42 Chancery Division, 302.] Originating Summons to determine certain questions arising upon the will of Caroline Smith, who died on tiie 14th of December, 1888. The testatrix, b}' her will, dated the 26th of July, 1888, appointed the plaintiff to be her executor, and directed that all her just debts and funeral and testanientaiy expenses should be paid as soon as conve- niently* might be after her decease. After bequeathing some small pecuniary legacies, and five legacies of £1,000 each, the will continued : " I leave the residue of my mone}^ (including the £750 settled on my brother, Charles H. Smith, at his death) to my cousin Dorothy Hitchins." At the time of the death of the testatrix her personal estate consisted of about £1,200. She had no real estate. The summons was issued by the executor, as plaintiff, against Doro- thy Hitchins (who was an infant), and two sisters of the testatrix, as defendants. It asked the determination (i?iter alia) of. the question whether the plaintiff was at libert}' to pay the whole, or any and what part, of the income of the property to which Dorothy Hitchins should be held to be entitled under the will to her father, under the provisions of section 43 of the Conveyancing Act, 1881, wliich permitted a trustee for an infant to pa}' the income of the trust property, at his discretion, to the infant's parent, or otherwise apply it for the infant's maintenance, education, or benefit.* C. JSroicne, for the infant. G. Curtis Price^ for the sisters of the testatrix. North, J. I think the point is clear. The testatrix, after directing the payment of her debts and finieral and testamentary expenses, and bequeathing some pecuniar}- legacies, left " the residue of her money" to an infant. She also bequeathed some specific legacies. It is the dut}' of the executor to clear the estate, — - to pa}' the debts, funeral and testamentary expenses, and the pecuniary legacies, and to hand over the assets specifically bequeathed to the specific legatees. "When all this has been done a balance will be left in the executor's hands, and I think it is plain that this balance will be held b}' him in trust for the infant within the meaning of section 43. In Phillipo v. Munnings^ the question arose, whether a suit against the executor of an executor to recover a sum of mone}' which the original testator had bequeathed to his executor upon certain trusts, the ultimate trust being for John 1 The statement of the case has been abridared. — Ed. 2 2 My. & Cr. 309. o^ SECT, v.] IN RE SMITH. 73 Buscall, who was dead intestate, the plaintiffs being his next of kin, was " a suit to recover a legacy" within the meaning of the Statute of Limitations, 3 & 4 Will. IV. c. 27. The defendant's testator had set apart the sum of £400 to answer the legac}". Lord Cottenham held that the suit was not a suit to recover a legacy. He said : ^ ''The whole fallacy of the defendant's argument consists in treating this suit as a suit for a legacy. Now, the fund ceased to bear the character of a i legacy, as soon as it assumed the character of a trust fund. Suppose ^ the fund had been given by the will to anybod\- else as a trustee, and not to the executor ; it would then be clearly the case of a breach of trust." Again, in Dix v. Burford - executors had assented to a specific be- quest of £400 (which was secured by a conditional surrender of copy- holds which had become absolute) to tl),em upon certain trusts. The executors did not procure themselves to be admitted, and one of them alone received the money and released the estate and misapplied the money. It was held that the co-executor had become a trustee, and was liable to make good the money. Lord RomiJly, M. R., said:* " The first question here is, whether the relation of trustee and cestui que trust existed? There is a specific legacy of tliis mortgage for £400, and a bequest of the residue to the executors. The moment the executors assented to the bequest, \X\e\ became trustees for iXmxv cestuis que trustent, the £400 then ceased to be part of the testator's assets, and it became a trust fund for the benefit of the plaintiff for life, and afterwards for his children, and the executors became mere trustees for them of that fund." In my opinion, it makes no diflference for this purpose whether a pecuniar}' legacy payable oiit of the estate is given to an infant, or the residue of the testator's estate is given to an infant, so soon as tliat residue is ascertained. I might refer to man}- other cases, but I think those two are suflleient to show what the clearly settled rule of law is. In my opinion, tho residue of the money in the hands of the executor, after satisfying all the previous trusts of the will, is propert}' held bv the executor in trust for tho infant, within the meaning of section 43.* ' 2 My. & Cr. .'514. 2 jg w^^^y, 409. 3 19 j^pav. 412. * A hpf|ni'flt to an oxocntor upon trust to invent and pay tlic income to anotlior is not a Icpary within 9 & 10 Vict. r. O.*), h. fi.'i, givinpj tlio rf)unty court.s juri.sdictiou cncr Ifpacien. Hpwstf>ri v. IMiiliipH, 1 1 Kx. fi'.lD. AMorson, R. saiil in this case, p. 702 : " It i8 no part of the onlinary duly of an executor to do wliat tiiis trustee is reciuircd to do ; for, inasmuch a.s the restuis r/up truxl are infants, he is to invest the money diirinf^ their minority. . . . 'i'li.ii in no jiarl of the fluty of au executor; and tliore- forc this is the case of a real trust." T'onverBcly, a lepary is not heyond tho reach of a creditor's hill as a "trust" ' proceetlinp from a third person. Racon r. Ronham. 27 N. .1. Kip 2(>!t. » It is not always ejLsy to determint! whether, in a ;;iven ca.-'e, an executor hiifl ceased to hold a fund as execntor, and asstimcd the attitude of a trustee. Hut tho legal dif- ference hctween the two relntions is clearly defincfl and Ilis heen frefiuentlv illnst rated, E. g., if the execntur has hecome a frnst.ee, (I) the heneficiary has no further claim npoD the general assets of tho deceased. He must look solely to the specific rea ap* 74 DRAKE V. PRICE. [CIIAP. L DRAKE AND WIFE v. PRICE, Survivor of ROBINSON. In the Court of Appeals, New York, September, 1851. [Reiwrted in 5 New York Reports, 430.] Foot, J,' delivered the opinion of the Court. The material question in this cause is, wliether the appellant and his deceased co-executor held the funds as executors or as trustees, or, in other words, whether, as executors, they had paid it over to them- selves, as trustees, and held it in the latter character. propriated to the trust : Wilmott v. Jenkins, 1 Beav. 401 (sevihle) ; Brougham v. Pou. lett, 19 Beav. 119; Brown c. Kelsey, 2 Cash 243, 248 , Hubbard v. Lloyd, 6 Cush. 522 ; Miller v. Congdon, 14 Gray, 114 [semble). (2) The beneficiary's remedy is in equity, instead of the Probate Court : Parsons v. Lyman, 32 Conn. 566, 5 Blatciif. 170, s. c. ; Worden v. Kerr (Michigan, 1892), 51 N. W. R. 937; Poole v. Brown, 12 S. Ca. 556. (3) The beneficiary has a claim, in case of failure to invest, of what might have been realized : Buvchell v. Bradford, 6 Mad. 235 (semble). (4) If there are several execu- tors and trustees, one trustee cannot act for all, where one executor might so act : Ham I'. Ham, 58 N. H. 70. (5) One trustee may be liable for the default of a co- trustee when an executor would not have to answer for default of a co-executor ; Dix I" r. Burford, 19 Beav. 409. (6) Beneficiary, as phiintiff, may be a witness in a proceed- '» ing against the trustee, when he could not testify in a proceeding against the executor as the representative of tlie deceased: Myers v. Keinstein, 67 Cal. 89. (7) Statute of Limitations wliich bars a claim for a legacy has no bearing on the claim against tlie trustee : Phillipo v. Munnings, 2 M. & Or. 309 ; Tyson v. Jaclison, 30 Beav. 384 ; Re Rowe, 58 L. J. Ch. 703 ; Re Davis, '91, 3 Ch. 119 {semble) ; Re Swain, '91, 3 Ch. 233 ; Hartford v. Power, 2 Ir R. Eq. 204 ; O'Reilly v. Walsh, 6 Ir. R. E(i. 555. (8) Tho beneficiary, as in other cases of trusts, may, to prevent a failure of the trust, secure the appointment of a new trustee : Ex parte Dover, 5 Sim. 500 ; Ex parte Wilkinsou, 3 Mont. & A. 145. (9) It .seems clear that after the executor has become a trustee the sureties on the executor's bond cannot be charged for subsequent acts or omissions of the trustee : Perkins v. Lewis, 41 Ala. 662 (semble) ; Hinds r. Hinds, 85 Ind. 312; State I". Anthony, 30 Mo. Ap. 625 ; see also RufRn v. Harrison, 81 N. Ca. 208. But ia some jurisdictions, notaVjly in Massachusetts, the sureties on the executor's bond con- tinue liable, even though the regular executorial duties are all performed, until tho executor has given a new bond as trustee : Groton v. Ruggles, 17 Me. 137 (semble) ; Knight V. Loomis, 30 Me. 204 (semble) ; Hall v. Gushing, 9 Pick. 395 ; Ellis v. Ellis, 12 Pick. 178, 181 ; Towne v. Ammidown, 20 Pick. 535; Ne'wcomb v. Williams, 9 Met. 525 ; Conkey v. Dickinson, 13 Met. 51 ; Prior v. Talbot, 10 Cush. 1 ; Miller v. Congdon, 14 Gray, 114 ; Richardson v. Morrill, 146 Mass. 76; Felton v. Sawyer, 41 N. H. 202 (but see Leavitt v. Wooster, 14 X. H. 550) ; see also State v. Nichols, 10 Gill & J. 27 ; Almond v. Mason, 9 Grat. 700. And the court will permit a new bond to be given only when special reason.^ of convenience require it. The application of the executor to substitute a bond as trustee in place of his bond as executor was denied in Dorr v. Waiuwriglit, 13 Pick. 328, and the beneficiary was equally unsuccessful in Holbrook V. Harrington, 16 Gray, 102. In other jurisdictions where the will directed an investment of personalty by the executor, the sureties on the executor's bond were held until the investment was made. Perkins v. Moore, 16 Ala. 9 ; Cranson v. Wilson, 71 Mich. 356; Cluff v. Day, 124 N. Y. 195 ; Probate Court v. Angell, 14 R. I. 495. —Ed. 1 The statement of facts is omitted, being sufficiently indicated in the opinion of Paige, J. — Ei). SECT. Y.] DRAKE V. PKICE. 75 The same question arose on a similar clause in a will in the case of Valentine v. Valentine,^ and Chancellor AValworth decided that the executors held the funds in their character of executors, and not as trustees. His decision appears to me to be sound, and in accordance ■svith the provisions of the will. Holding the fund, and receiving and paying over the interest, as executors, the appellant and his co-executors are clearly entitled to only one per cent on the interest received and paid. Paige, J. (dissenting). The office of ah executor is, to take pos- session of all the goods and cliattels, and other assets of the testator ; to collect the outstanding debts and sell the goods and chattels so far as is necessary to the payment of the debts and legacies ; to pay the debts and legacies, and under the order of the surrogate to distribute the surplus to the widow and children or next of kin of the deceased. These acts embrace all the duties which appropriately belong to the executorial office. If any other duty is imposed upon the executor, or any power conferred, not appertaining to the duties above enumer- ated, a trust or trust power is created, and the executor becomes a trustee, or the donee of a trust power. And such powers are con- ferred, and such duties imposed upon him, not as incidents to his office of executor, but as belonging to an entirely distinct character, — that of trustee. And in all such cases the trust and executorship are distinguishable and separate. The allegations of the complaint make out a case of trust. The defendants, who were executors, were directed in the will of Gilbert Hunter to invest 85,000, as the share of the plaintiff, Julia Drake, and to keep the same invested during her life, and to secure the interest and pay the same over annually to her (lurnig her life, and on her decease to divide the principal among her lawful heirs. The defendants, in accordance with the direction of the will, invested the 8^,000, and have annually paid over to her the interest, deducting therefrom five per cent commissions. This is not like the case of Valentine v. Valentine.^ In that case the trust had not been assumed by the executors by an investment of the trust moneys, and the conserjuent separation from the moneys held by the defendants in their character of executors. Here the separation was made. The share of the plaintiff Julia Drake was taken out of the mass of the moneys belonging to the estate of the testator, and in- vested as a separate trust fund for the use and benefit of the cestui que trust. The payment of the interest annually on the sum so invested to the plaintiff Julia Drake is efjuivalent to an annual ac- rounting under tlu; ir»4th rule of the late Court of Chancery, and cntiLli'd the (kfendants to full commissions on the sum so received, as interest, and paid over each year, without regard to the aggregate amount of the previous receipts and disljursements by them, either as executors or trustees. (0 Paige, 21G; 7 Paige, 200; 2 Paige, 287; » 2 Barb. Ch. 430. 76 DRAKE V. PRICE. [CHAP. L Paige, 167.) The question whether the defendants wouki be entitk'd to doable commissions for receiving and paying out the principal sum of So, 000, does not arise in tliis case.' There was no actual paj'ment to the defendants of the $5,000 as trustees, the money being already in their hands as executors. And there will be no actual payment out, of the $5,000, until the death of Julia Drake. The Revised Statutes allow executors full commissions only when moneys are both received and paid out. And under the late Clian- cellor's decision, one half commissions are to be allowed for receiving and one half for paying out. (7 Paige, 267.) No commissions can be allowed on either the investment or the reinvestment of trust moneys, or on the collection of moneys so invested or reinvested. (7 Paige, 265.) I am of opinion that the judgment of the Supreme Court should be reversed. Judgment affirmed.'^ 1 Double commissions are not allowable when the executor is also trustee. Val eutine V. Valentine, 2 Barb. Ch. 430. ■■' Lansing v. Lansing, 45 Barb. 182 Accord. Miller v. Congdon, 14 Gray, 114 (semtle); Westerfield v. Westerfield, 1 Bradf. 198 Contra. — Ed. A trustee Is to be distinguished from a liquidator of a company : Knowles v. Scott, '91, 1 Ch. 717 ; — and from a guardian : Fox v. Minor, 32 Cal. Ill,- Anderson V. Cameron. Morris, Iowa, 437, Brooks v. Brooks, 11 Cush. 18. — Ed. SECT. VL] palmer V. SCHRIBB. 71 SECTION VL The Language necessary to the Creation of a Trust, PALMER V. SCHRIBB. In Chancery, before Lord Harcourt, C, , 1713. [Reported in 2 Equity Cases Abridged, 291, placitum 9.] J. S. devises the residue of his estate to his wife, and desires h er to give al l her estate at her death to his and her relations. Qucere, If this does amount to a devise on a trust in the wife for all the estate which the husband gave her by his will. Harcourt, C. thought these words too general to amount to a devise over of his estate after the death of the wife ; nor can it be taken as a trust, because the words ex- tend to all the estate which she shall be possessed of at the time of her death, which the husband has not any power over, and therefore it must be taken over as a recommendation, and not as a devise or trust.^ But if the testator had desired his wife b}' his will to give at her death all the estate which he had devised to her, to his and her relations, there the estate devised to her ought to go after her death to his and her relations, according to the statute of distributions. Bill dismissed. 1 Anon., 2 Eq. Ab. 291, pi. 8 (Bequest to a wife : " I desire and request my said wife to give all her estate which she shall have at the time of her death to her and my nearest rehitioiis equally amonffst them"). Kaih; V. Kade, 5 Mad. 1 1 8 ( IJequcst to a wife, " requesting that she will at her death leave £200 to each of the Miss Nortons, and leave the remainder of her property to my nfpliews G. and W. in such proportions as she tliinks jjroper"). Jxclimcrc v. Lavie, 2 M. & K. 107 (Ik(iu('st to two eldest daughters- "If they die single, of course they will leave what they have amongst their brothers and sisters, or their children "). Hood V Oglander, 34 Beav. 513 (Devi.se to a son . " And it was his anxious desire that he would HO. 'icttle and devise the same, . . . anil also tiie manors, messuages, lands, and lu^reditaments to which he wan or might become entitled, , . . that the same . . . miglit continue in the name of Oglander "). I'aniall v. rariiall, 'J Cli. 1). '.»<; (IJequcst of overytliing to a wife: "It is my wish that whatever property my wife miglit ^)ossess at her death bo equally divided between my children"). Hopkins v. Glunt, 111 Pa. 287 (Bcipiest of everything to a wife forever: "My fur- ther request is that at the death f>f my wife she will so divide what she may have among our daughters' children, share and share alike "). HARDING V. GLYN. [CHAP. I. HARDING V. GLYN. In Chancery, before Hon. John Verney, M. R., June 7, 1739. [Reported m 1 Allyns, 469.] Nicholas Harding in 1701 made his will, and thereby gave "to Elizabeth, his wife, all his estate, leases, and interest in his house in Hatton Garden, and all the goods, furniture, and chattels therein at the time of his death, and also all his plate, linen, jewels, and other wearing-apparel, but did desire her at or before her death to give such leases, house, furniture, goods and chattels, plate and jewels, unto and amongst such of his own relations as she should think most deserving and approve of," and made his wife executrix, and died the 23d of January, 1736, without issue. Elizabeth, his widow, made her will on the 12th of June, 1737, " and therebj' gave all her estate, right, title, and interest to Henry Swindell in the house in Hatton Garden, which her husband had bequeathed to her in manner aforesaid ; and after giving several legacies, bequeathed the residue of her personal estate to the defendant Glyn and two other persons, and made them executors," and soon after died, witiiout bav- ins; given at or before her death the goods in the said house, or without having disposed of any of her husband's jewels, to his relations. The plaintiffs insisting that Elizabeth Harding had no property in the said furniture and jewels but for life, with a limited power of dis- posing of the same to her husband's relations, which she has not done, brought their bill in order that they might be distributed amongst his relations, according to the rule of distribution of intestates' effects. Master of the Rolls. The first question is, If this is vested ab- solutely in the wife? And the second. If it is to be considered as undisposed of, after her death, who are entitled to it? As to the first, it is clear the wife was intended to take only bene- ficially during her life ; there are no technical words in a will, but the manifest intent of the testator is to take place, and the words " will- ing" or "desiring" have been frequently construed to amount to a trust, Eacles et ux. v. England et ux. ; * and the only doubt arises upon the persons who are to take after her. Where the uncertainty is such that jt is impossible for the court to determine what persons are meant, it is very strong for the court to construe it only as a recommendation to the first devisee, and make it absolute as to him ; but here the word " relations " is a legal description, and this is a devise to such relations, and operates as a trust in the wife, by way of power of naming and apportioning, and her non-per- formance of the power shall not make the devise void, but the power 1 2 Vern. 466. SECT. VI.] HARLAXD V. TPJGG. 79 shall devolve on the court ; and though this is not to pass b}' virtue of the statute of distributions, yet that is a good rule for the court to go b}-. And therefore I think it ought to be divided among such of the relations of the testator Nicholas Harding, who were his next of kin at her death ; and do order that so much of the said household goods in Hatton Garden, and other personal estate of the said testator Nicholas Harding, devised b}- his will to the said Elizabeth Harding, his wife, which she did not dispose of according to the power given her thereby, in case the same remains in specie, or the value thereof, be delivered to the next of kin of the said testator Nicholas Harding, to be divided equally amongst thein, to take place from the time of the death of the said Elizabeth Harding.^ HARLAND v. TRIGG. In Chancery, before Lord Thurlow, C, , 1782. [Reported in 1 Brown's Chancery Cases, 142.] Richard IIarland, being seised in fee of the manor of Sutton, in the county of York, and having four sons, Philip, John, Richard (the plaintiff), and Francis, by his will in 1747 devised the said manor (with other lands) to Philip, the eldest son, for life, with remainder to his first and other sons in tail male, remainder to John, the second son, for life, remainder to the plaintiff for life, remainder to Richard lor life, with like remainders to their several first and other sons, and with further remainders over. Richard, the father, died in 1750; Phili|) entered, and, being himself also possessed of leaseholil estates in Sutton, some for lives and oliiers for years, by his will, made in the year 17(!4, gave his leasehold estate for lives to the trustees of his father's will, to the 1 In Rrown v Tli^g'^. 8 Ve.s., Lord EMon said, p. 570 • " It is jjcrfcctly dear tliat, where there is a mere power of (li.spo.'y the death of the trustee, or by accident, tliis court will execute the trust One question, tlierefore, is, whether Jr tlie defendants.' Loud Chancki.lok. If a bill had l)een filed in the lifetime of the wife, could I have ordered this money to l)e laid out, and that she should receive the interest for her life, and then it should go over? These are equivocal words, the intent of which is to be gathered from the context. If the intention is clear what was to be given, and to whom, I sliotdd think the words "not doubting" would be strong enough. Lut where, in point of context, it is uncertain what property ^ The arguments of counsel are omitted. — Ed. 6 82 WYNNE V. HAWKINS. [CHAP. I. was to be given, aud to whom, the words are not sufTicicnt, because it is doubtful what is the confidence which the testator has reposed ; and, where that does not appear, the scale leans to the presumption that he meant to give the whole to the first taker. Here he looked upon the provision made by the father of the grandchildren as an ample provision, and meant this fortune to pass througli the pleasure of his wife, leaving it to her to use what she pleased, aud consequently to make the residue such as she chose. If lie had meant imperatively, he might easily have used such words as would have effected his iutention ; but it is impossible, upon any rule of construction, to make these words an order upon her to pass the property over. JJill dismissed.^ 1 There was no trust in the following cases. Bland v. Bland, 2 Cox, 349 ; Prec. Ch. (ed. Finch), 201 n. ; 2 Brown C. C. 43 (cited), s. c. (Devise to a husband "ear- nestly recjuesting that, in case he should die without issue, he would dispose of the estate, or of so much thereof as he should die seised of, so that the estate might be enjoj-ed by her daughters"). Pushman v. Filliker, 3 Ves. Jr. 7 (Kesidue to wife, " desiring her, ... on her decease, to dispose of what shall be left among my children in such manner as she shall judge most proper "). Wilson V. Major, 11 Ves. 205 (Kesidue to a wife, "upon full trust and confidence in her justice and equity that at her decease she would make a proper distribution of what effects might be left, in money, goods, or otherwise, to his children "). Cowman v. Harrison, 10 Hare, 234 (Bequest of income to a wife, " particularly recommending, desiring, aud directing her at her decease, by will or otherwise, to divide " the savings therefrom " amongst all his children in equal shares "). Mills V. Newberry, 112 111. 124 (Bequest of everything to A., "upon the express condition, however, that she devise, by will to be executed before receiving the be- quest, so much thereof as shall remain undisposed of or unspent at the time of her decease to such charitable institution in Chicago as she may select"). Kona V. Meier, 47 Iowa, 572 (Bequest of everything to a wife, "with full power to dispose of the same. , . . It is my desire that, at the death of my said wife, what- ever property may be left shall thus be disposed of, and request of my wife that she will and provide that the property so received from me shall be devised at her death as follows." Full directions follow). Williams v. Worthington, 49 Md. 572 (Residue to a wife : " It is my request and desire that my said wife should by last will and testament devise and bequeath all of said property at her death remaining in her possession to my friend B. W. and to E. W share and share alike "). Davis V. Mailey, 134 Mass. 588 (Residue to a wife, "to her sole use, benefit, and disposal . . . ; and whatever may be left of my estate, if any, she may by will or other- •wise give to tho.se of my heirs that she may think best, she knowing my mind upon that subject. I am willing to leave the matter entirely with her, feeling satisfied that she will do as I have reque.sted her to in the matter"). In the ca.se last cited the court said, througli Field, J. : "This construction renders it unnecessary to determine whether, if the recommendation were intended to bind the devi-see, it would not be repugnant to the devise or void for uncertainty." Second Church v. DLsbrow, 52 Pa. 219 (Devise to a wife "to enjoy during her lifetime, or dispo.se of the same, as shall seem best unto her, and in doing so she .shall possess all the rights and powers that I of right could do if I were living; but it is my wish and desire that my said wife will leave at the time of her death the prop- erty thus left to her by me, or any part that may be then niiiiaining in her hand, for the benefit of young men that are unable to educate themselves," &c.). li it is desired to give to one person the full enjoyment of certain property, SECT. VI.j MAUM V. KEIGHLEY. 83 MALIM V. KEIGHLEY. In Chancery, befoke Sir Rich.vrd Pepper Arden, M. R., June 7, 1794. [Reported in 2 Vesey, Jr., 333.] Thomas Lowe, by his will, gave £1,000 stock in tnist to pay the interest and dividends to his daughter Anne Malin for life, for her separate use, and after her decease the principal among her children ; if no children, to sink into the residue. He gave £oOO stock to Eliza- beth Thompson, and a similar sum to Sarah Lowe, two other daugh- ters ; and declared trusts, in failure of which those sums should sink into the residue. Then he gave all the rest and residue of his estate and effects whatsoever and wheresoever in trust, as to one third for his daughter Lucy Rawlin, for her separate use for life ; after her decease for her husband for life, and after his decease for the children ; as to another third, for Elizabeth Tliompson, for her separate use for life, and after her decease for her children, with a proviso that, if she should survive her husband, and marry again, she might, by writing under her hand and seal, executed before such marriage in the pres- ence of two witnesses, direct the interest, &c. to be paid, after her decease, to such husband for life ; as to the other third, for Sarah Lowe and her children in the same manner, and with a similar power in case of her marriage ; and in case either of these daughters should together with the power of alifiiation, ami at the same time to secure to another the benefit of so much of the property as is not disposed of by the first douce, this desire may be accomplished by a gift to the one person for life, with a power of alienation, and a limitation of what remains at his death to the other. 1 Jarman, Wills (4th ed.), .302-304; Henderson v. Cro.ss, 29 Heav. 210 (scmble) ; Constable r. Bull. 3 DeG. & Sm. 411 ; Re Stringer's Estate, 6 Ch. I). 1 ; Bibbens v. Porter, 10 Ch. D. 733; Re Thomson's Estate, 13 Ch. 1). 144, 14 Ch. Div. 203; Re Sheldon, 53 L. T. Rep. .527; Espinassc v. Lulhngham, 3 Jo. & Lat. 180. '.> Ir. Eq. 12'J; Smith r. licll, Pet. OH ; Funk i;. Eggleston, 92 111. 515; John v. Bradlmry, 97 Ind. 203; Hall r. Prelile, 08 Me. 100; Hall v. Otis, 71 .Me. 320 ; Taft r. Taft, 130 Ma.s.s. 401 ; Burleigh v. Clough, 52 N. II. 207; Terrv r. Wiggin, 47 N. Y. 512; Cohen v. Cohen, 4 Kedf. 48; Colt ;- Hazard, 10 Hun, 189 ; Crozier v. Bray, 120 N. Y. 300 ; Eeggott v. Eirtli, 132 N. Y. 7 ; Ilambright's App., 2 Grant, (I'a.) 320. But if property is given to one person in fee, i. e. aw alisolutc owner, a limitation to another of what is undispo.sed of at the death of the absolute donee is voiij for repngnancy. Kor one of the inciilents of absolute ownership is the right of tlic owner to suffer his property to descend to his heir or next of kin. Atty. Gen. v. Hall, Fitzg. 314 ; Sprange v. Barnard, 2 Bro. C. C. 585; Watkins v. Williams. 3 MacN. & G. 022; Perry v. Mcrritt, 18 Eq. 152; Hendrr.son v. Cro.ss, 29 Beav. 210; Shaw v. Ford. 7 Ch. I). 009; Howard r. ("arusi. 109 II. S. 725; Case V. Dcwire, 00 Iowa, 442 ; Halliday r. Stickler, 78 Iowa, 388 ; Combs v. Comba, 67 Md. 203; Kelly v. Mrins, 135 Mas.s. 229; Joslin i-. Bliodi's, 150 Mass. 301 ; Weir v. Mirh. Co., 44 Mich. .500; Hoxsey i;. Hoxsey, 37 N. J. Eq. 21 ; McClellan r. Larcher, 45 N. J. Cas. 17; Campbell v. Beaumont, 91 N. Y. 404; Van Horn v. Camj)bcll, 100 N. Y. 287 ; .lauretche v. Proctor, 48 Pa. 400 ; Cox v. Roger, 77 Pa. 100 ; Colo v. Cole, 79 Va. 251. — Eu. 84 MALIM V. KEIGIILEY. [CITAP. I. leave no ohiUlr'Mi. the share of such (lau 10 Ef|. 2f)7. ' The argiiitifnt for the appellant, together with tlio concurring opinion of Mcllislv L. J., is omitted. — Eu. 86 LAMBE V. EAMES. [CHAP. I. court, and, uinlor pretence of benefiting the cliiUlren, have taken the administration of the estate from the wife. I am satisfied that no such trust was intended, and that it would be a violation of the clearest and plainest wishes of the testator if we decided otherwise. The testator intended his wife to remain head of the famil}-, and to do what was best for the family. If he had said, " I give the residue of my propert}' to my three sons, each to take his share, to be at his dis- position as he should think best, for the benefit of him and his famil}-," — in such a case it would be clear that the testator did not mean to tie the property up, but to give a share to each son, believing that he would do the best for his family. But it is said that we are bound b}^ authority. The cases cited may, however, be distinguished. In this will there is, in the first place, an absolute gift, and we have to be satisfied that this gift is afterwards cut down. It was also argued that in some cases, as in Crockett u. Crockett,^ the Court has decided there was some interest in the chil- dren, but did not declare what it was, leaving the matter to be dealt with after the death of the tenant for life. It is possible that in this case there ma}' be some obligation on the widow to do something for the benefit of the children ; but, assuming that there is such an obligation, it cannot be extended to mean a trust for the widow for her life, and after her death for the children, in such shares as she may think fit to direct. That would be to enlarge the will in a wa}' for which there is no foundation ; but unless the will has that meaning, what trust is there? I cannot agree that she is to take what she likes, and that what she has not spent is to go at her death for the benefit of her children. In Crockett v. Crocket,^ it was only decided that the children had some interest, and if the widow fairly satisfied that obligation, and gave them some interest, nothing more could be required. Then this case was said to be like Godfrey v. Godfrey.^ But there the Vice Chancellor decided that there was an interest, though he did not define what that interest was. [His Lordship then read and com- mented on the judgment in Godfrey v. Godfrc}', and said that the ratio decidendi in that case was that there was a trust.] But it is impossible in this case to say that there was a trust. The testator clearly intended her to deal with the property as she pleased, and contemplated that she might risk it in his trade. The other cases cited arc morel}' illustrations of the same kind, and do not enable the court to escape from the difficulty of having to decide upon the meaning of the word " family." It seems to me impossible to put any restriction upon the meaning of that word, or to exclude any person who, in ordinary parlance, would be considered within the meaning. The word might include sons-in-law, or daughters-in-law, and many others. It is equally uncertain what the property is, because, 12 Ph. 553. ' 2 2N. R. 16; 11 W. R. 554. SECT. VI.] LAMBE V. EAMES. 87 if she could spend an}- part for her own private purposes, then there might be nothhig left for the trust. It is impossible to execute such a trust in this court, and if the case stood alone I should say that no sufficient trust was declared b}' the will. But if there be any such obligation, I think it has been fairly discharged b}' the way in which she has made her will, — giving part for the benefit of one member of the famih", and part to a natural son, ■whom she might reasonabh* think it her dut}' to benefit. It appears to me that the decision of the Vice Chancellor is right, and that the appeal must be dismissed. Sir G. Mellish, L. J. I am of the same opinion.^ ^ In the following cases it was held that the donee took beneficially, subject to an obligation in favor of a third person ; — Hamley v. Gilbert, Jac. 354 (Gift to A. upon trust to pay certain moneys to a niece^ which moneys " should be laid out aud expended by her, at her discretion, for or to- wards the education of her son, F. G. H., and that she should not at any time there- after be liable and subject to account to her said son, or to any other person whatever, for," &c.). Foley V. Parry, 2 M. & K. 138; 5 Sim. 138, s. c. (Residuary bequest to testator's wife for life, remainder to a grand-nephew, W. W. F. : " It is my particular wish and request that my dear wife and W. W., the grandfather of the said W. W. F., will superintend and take care of his education, so as to fit him for any respectable profes- sion or employment "). Berkeley v. Swinburne, 6 Sim. 613 (Devise to trustees in trust for a sister's children, the trusts to vest upon the majority or marriage of each, tlie income to be paid to the sister (or guardian of the children) prior to the vesting, "to be applied in and towards the maintenance and education of such child or children respectively, or otherwise for their respecti%-e use and benefit "). Camden v. Benson, 4 L. J. Ch. N. s. 256 (Bequest of income to testator's wife during her life, " in support of herself and three children "). Woods V. Wood.'', 1 M. & Cr. 401 (Devise to a wife for the payment of debts, "all overflush to my wife, towards her support and her family, if any there be "). Iladow V. Iladow, 9 Sim. 438 (Devise to trustees upon trust to pay to testator's sous at twonty-one, and in the mean time to pay the income to " my said dear wife, J. li., to be by lier ajijiliod, or, in c:i.se of her death, to be applied by my said trustees . . . for and toward.s the maintenance, education, aud .advancement in life of my said sous ... in such maimer as she or they shall think proper "). Gilbert v. Bennett, 10 Sim. 371 (Devi.se to trustees upon trust to pay the income "unto my saiil wife for the education and .idvancing in life of any ciiildren she m.iy have borne by me, . . . and after her dcatii the wiiolc of the said property ... to bo divided equally . . . among my saiil children "). I'age V. Way, 3 Bcav. 20 (Setticincnt l>y F. J., n])on trust to rercive and ])ay incomo "unto or for the maintenance and 8up|)ort of the said F. J., his wife, and ciiildren ; or otherwise, if the trustees should so think proper, permit the same rents, &c. to bo receiv(!il by tlio saiil F. J. fiuring tlio term of liis nutiiral life"). W8 (Bequest of income to a wife during widowhood and mi- nority of testator's children, " to be used and app!ien, " for liis own use and benefit, well knowing ho would discharge the trust the testator reposed in him by remcinbering the testator's sons and diiughters "). Pope V. Pope, 10 Sim. 1 (Residuary bequest to a wife : " And my rea.son for so doing 102 IN RE DIGGLES. [CHAV. L 19 the coustaut abuse of trustees which I daily witness among men ; at the same time trusting slie will, from the love she bears to mo and her dear children, so husl)aud and take care of what property there may bo for their good ; and should she marry again, then I wish she may convey to trustees . . . what property she may then possess for the beucrit of the ciiildreu as they may severally need or deserve, taking justice and affection for her guide"). Knight v. Boughton, 11 CI. & Fin. .513 (" I trust to the justice of my successors in continuing the estates in the male succession, according to the will of the founder of the family "). Williams v. Williams, 1 Sim. n. s. 358 ("It is my wish that you [the testator's wife] should enjoy everytliing in my power to give, using your judgment as to whom to dis- pose of it amongst your children when you can no longer enjoy it yourself ; but I should be unhappv if I thought it possible that any one, not of your family, should be the bet- ter for what, I feel confident, you will so well direct the disposal of "). Green v. Marsden, 1 Drew. 646 (Bequest of stock to a wife: "And I beg and request that at her death she will give and bequeatli the same, in such shares as she shall think proper, unto such members of her own family as she shall think most de- serving of the same "). Johnston v. Rowlands, 2 DeG. & Sm. 356 ("As to the sum of $2,000 ... I give the same to my said wife, to be di.sposed of by her will in such way as she shall think proper ; but I recommend her to dispose of one half thereof to her own relations, and the other half among such of my relations as she shall think proper"). Brook V. Brook, 3 Sm. & G. 280 (Devise to testator's niece, M. A. B., " to be her sole and separate property, . . . and with power ... to appoint the same to her children and her husband in such a way and in such proportions as she may think fit "). Alexander v. Alexander. 2 Jur. n. s. 898 (" And my sons in law, F. H. and W. S. A., may dispose of the property I leave for the good of their families "). Keeves v. Baker, 18 Beav. 372 ("The residue of my property ... to my beloved wife, Mary Reeves, her heirs and assigns forever, being fully .satisfied that . . . she will dispose of the same, by will or otherwise, in a fair and equitable manner, to our united relations, bearing in mind that my relations are generally in better worldly circumstances than hers are "). Howorth V. Dewell, 29 Beav. 18 (Residuary bequest to a wife, " with power for her to dispose of the same unto and among.st all of my children, or to any one or more of them, for such estate or estates, either in fee simple or in tail, term of life or other in- terest, temporary or lasting, ... as my said wife shall, in her discretion, see most fitting and proper"). Scott V. Key, 35 Beav. 291 ("The balance ... to go to my dear wife, being well assured that she will husband the means that may be left to her by me with every prudence and care, for the sake of herself and any children that I may leave by her"). Jn re Pinckard's Trust, 27 L. J. Ch. 422. In re Bond, 4 Ch. D. 238 ( Residuary bequest to a wife, " And for my dear wife, A. B., to do justice to those relations on my side such as she may think worthy of remunera- tion, but under no restriction as to any stated property, but quite at liberty to give Hnd distribute what and to who my dear wife may please"). In re Hutchinson, 8 Ch. D. 540 ("To my dear wife, H. R., absolutely, with full ■power for her to dispose of the same as she may think fit for the benefit of my family, having full confidence that she will do so "). Mnssoorie Bank v. Rayner, 7 App. Cas. 321 ("To my wife, . . . feeling confident that she will act justly to our children in dividing the same when no longer required by her "). lie Adams Vestry, 24 Ch. D. 199, 27 Ch. Div. 394 ("To the absolute use of my wife, ... in full confidence that she will do what is right as to the disposal thereof between my children, either in her lifetime or by will after her decease "). Creaghr. Murphy, 7 Ir. R. Eq. 182; Morrin v. Morrin, L R. 19 Ir. 37. Montreal Bank v. Bower, 18 Ont. 226 (Absolute gift to a wife ; " And it is my wish and desire, after my decease, that my said wife shall make a will dividing the real and SECT. VI.] IN EE DIGGLES. 103 personal estate and effects hereby devised and bequeathed to her among my said chil- dren in such mauner as she shall deem just and equitable"). Gilbert v. Chapin, 19 Conn. 342 (Residuary bequest to a wife, " recommending to her to give the same to my children, at such time and in such manner as she shall think best"). Lines v. Darden, 5 Fla. 51 (Bequest to a daughter: "My will and desire is that such grandson so arriving at the age of twenty -one years . . . shall receive a portion of the estate as a loan, to have the management and receive the benefit of the same until the final distribution shall take place, and then to return the same to be equally divided with the rest of my estate "). Sale V. Thornberry, 86 Ky. 266 (Devise to a wife in fee simple : " I only make this request of her, and only as a request, for I feel that her own kind heart and good judg- ment will prompt her to do so without, viz. : that in the event she should marr}' again she will see that the interests of our children in said property are protected "). Gibbins v. iShepard, 125 Mass. 541 (Bequest to a wife " for her support during her lifetime, and leaving it as an injunction on her to divide it on the children at her death, as she deems best, and as they deserve "). Sturgis V. Paine, 146 Mass. 354 (Residuary devise to a wife "at her sole use and disposal. . . . My said wife is fully acquainted with my reasons for this disposal of my estate, and will by her own last testament do what is right and just to my children and their natural heirs "). Foose c. Whitmore, 82 N. Y. 405 ("All my property to my wife, only requesting her at the close of her life to make such disposition of the same among my children and grandchildren as shall seem to her good "). He IngersoU, 59 Hun, 571 (Bequest of SI, 000 to A. " forever, for the uses and pur- poses before stated, and I rely upon him to carry out the wishes and purposes that I have hereinbefore indicated "). Alston r. Lea, 6 Jones Eq. (N. Ca.) 27 (Bequest to a wife, " so that she can have the right to give it to our six children as she may think best "). Re. Pennock's estate, 20 Pa. 268 (Bequest to a wife " absolutely, having full confi- dence that she will leave the surplus to be divided at her decease justly among my children "). Kinter v. Jenks, 43 Pa. 445 (Residuary bequest to a wife, " for her use and comfort and to be disposed of as she pleases at or before her decease, when, no doubt, she will make such diHtributi(jn of the same amongst our children as she may then think most proper"). See Burt v. Ilerron, 66 I'a. 400. Bowlby V. Thunder, 105 Pa. 173 (To a wife, "with the fullest confidence that she will carry my intentions . . . into effect, so far as, in her opinion, my children and grandchildren . . . may prove worthy of her attention. . . . Memorandum for her, ... the two frame hou-ses N. E. corner of Lombard and 10th Streets, to the children of my daugliter Anne," etc.). Lcsesne v. Witte, 5 S. Ca. n. 8. 450 (" I devise all my estate to my beloved wife, feeling entire confidence that she will use it judiciously for tin; benefit of herself and our children "). Rowland v. Rowland, 29 S. Ca. 54 (" I desire that my wife shall advance to such child or cliildrcn such an amount, either in property or money, as she deems prudent, but not exceeding a distributive share of my estate, as it is my intention for my wife to keep as much of my baUita a.H will make her comfortable "). Thomp.Hon r. McKisick, 3 Humph. 631 (Bequest of i)ropcrty to a daughter. " to be hers forever, to be di.spoHcd of a.H she may think proper amongst her children and grandchildren, by will or otherwise "). See Wright v. Atkyns, Cooper, 121, 122; T. & R. 143 ; 17 Vcs. 255 ; 19 Vcs. 299; 1 V. &B. 313; Sugd. Lawof Prop. 376, 8. c. ; Van Amee y. Jackson, 35 Vt. 173. — Eu. } 04 AIIEAKNE V. All ERNE. TCHAP. L AHEARNE V. AHERNE. In the High Court of Justice, Ireland, Chancery Division, before Sir Edward Sullivan, M. R., July 15, 1881. [Reported in Law Reports, 9 Irish, 144.] The Master of the Rolls. ^ The testator, Thomas Ahearne, had two children, a son (the plaintiff, Thomas M. W. Ahearne), and a daughter, Isabella Ahearne, who was married. He made his will, the parts of which material to the question before me are as follows : — "I devise and bequeath to my said son and to my daughter the farm called Sunville, situate in the county of Cork, with all the stock and cattle thereon, and also all the farm utensils and other plant thereon, to hold to them share and share alike." He also bequeathed to the plaintiff and the defendant a sum of £3,900 held by him on deposit receipt, and £252 to his credit in the Provincial Bank ; and the will contained this clause : " My will is that the bequests to my said daughter shall be for her sole and separate use, to be held by her for her life, with a power of appointing same among her children." Thus, he first devised an absolute interest to his son and his daughter as tenants in common ; and if he had stopped there, the daughter would have taken a moiety absolutely. But, apparently with a view to cor- rect what he had done, and to point to something else which he had in his mind of a different character, he added the second clause, by which he declared that the bequestxto his daughter should not be an absolute bequest, but should be for ner life, with a power of appointing same amongst her children. He then appointed his son and his daughter residuary legatees, but that residuary bequest deals only with pure personal estate. The question arises whether the children took under the will, apart from the discretion of their mother, or whether she could, by not exercising the power, exclude them. I am of opinion that she could not, and that this is a trust for the children, subject to a power of appointment in her. The principle upon which this case depends is thus stated by Lord St. Leonards in his work on Powers, 8th ed., p. 589 : "The question whether a power is simply such, or a power in the nature of a trust, commonly arises on a power to appoint to a man's children or relations. In Brown v. Higgs,' Lord Eldon stated the principle of all the cases on this subject to be, that if the power is a power which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, tcho has given him an interest extensive enough to enable him to discharge it^ he is a trustee for the exercise of the power, and not as having a discretion whether he will 1 See supra, p 70 n. 1. — Ed. * 8 Ves. 574. SECT. YI.] AHEARNE V. AHERNE. 105 exercise it or not ; and the Court adopts the principle as to trusts, and n-ill not permit his negligence, accident, or other circumstances, to disappoint the interests of those for whose benefit he is called upon to execute it." And in § 9 he states " In all these cases, although in terms no obligation was imposed on the donee to exercise the power, and althoush in some he had a discretion to select from the class the individuals to take, yet as the property was given to him generally i with such a power, -and his own interest was confined to his life by plain construction, an intention was collected that the interest beyond his own life was to vest in the objects, and that he having a sufficient estate for that purpose, and a power, was bound to give effect to that intention ; and his neglect to exercise his discretion, or to execute his power among the objects — where none was to be excluded — was not permitted to operate to the detriment of the cestuis que trust." In my opinion, that is the exact case before me. The will gives the donee of tlie power an estate amply sufficient to discharge the trust, and plainly cuts down her interest to a life interest. The words are remarkable : " ]My will is that the be(iuests to my said daughter, Isabella Aherne, shall be for her sole and separate use, to be held by her for her life, with a power of appointing same amongst her children." It is said that Healy v. Donuery ' is an authority against thjs view. It is sudicient to mention tlie names of the judges (Baron Penuefuther and Baron Greene) wiio decided tliat case, to satisfy everybody that nothing could be further from my mind than to overrule tliem. That case does not appear to me to be applicable to tliis. It fails in a most material circumstance; no estate was given to the donee of the power in the first instance, altliough Baron Greene, in a doubtful passage of his judgment, is reported to have said that there was. The will in that case was in these words : " I leave, devise, and bequeath unto my said daughter, Margaret Iloaly, all my frceliold interest in Nortli King Street, in the city of Dublin, upon trust to receive the rents, &.c. tliereof for and during the term of iii^r natural life, for her sole use, notwithstanding her coverture, witliout the control of her present or any future husband, «fec., with jiower to my said daughter by any deed or will to dispose of, devise, or bcqueatli the said freehold estate to and among her children, in such siiares and proportions as she shall tliink fit and projjer." That is not tlie case Itefore me of an absolute estata given to the donee in tlie first instance, cut down to a life estate by the subsequent words. Lord Komilly, in Iloworth v. Dowell,* points out the distinction Ix'tween the case of an al)solute interest given in the fust instance, with a superad " I say there is no doubt hnt that if T sell yon my use, the use is changed from my pfTHon to you : ho I uriilcrHtiitid that if I nay to you, ' I give you my use in certain lands,' you have the use hy surh words ; for the use does not jkiss a.'^ tiio land docs; for laud cannrit pass excei)t hy livery, hut a use pjisses by bare words." — I'er York, Y. B. 27 IT. VIII. fol. 8, pi. 22. " Cfislui f/ite tisr may grant his use without considoration, as lie may his horse or other chattell ; hut he cannot raise a use without good consideration. And this con- sideration must hee some cause or occasion nu^ritorioiis, aniounting to a mutuall ree- ompence iu deed or in law." Piuch, L.iw (ed. 1030), 34. — Ku. 103 NOTE. roU\P. L Stud. VfiiQU. a Use is in esse, ho that hath the Use may of his mere motion give it away, if he will, without Recouipeuce, as he might the Laud, if he had it iu Possession ; but I take it for a Ground, that he cannot so begin a Use without Livery of Seisin, or upon a Kecom- pence or Bargain. NOTE. 1535. [Reported in 1 Anderson, 37, placitum 95.1] Note by all the justices, that if one without any consideration en- feoffs another by deed to have and to hold the land to the feoffee and his heirs to his own use, [and] the feoffee suffers the feoffor to occupy the land for divers years, still the right is in the feoffee because there is an express use contained in the deed, which is enough without other consideration ; the law is the same when the feoffment is to the use of a stranger and his heirs.^ 1 Benl. 27, pi. Ill, s. c — Ed. 2 Calthrop's Case, Moore, 101, pi. 247; Stephenson v. Layton, Owen, 40; 1 Leon. 138, pi. 188, s. c. ; Mildmay's Case, 1 Kep. 176, b; Jefferys v. Jefferys, Cr. & Ph. 138 ; Scales V. Maude, 6 D. M. & G. 43, 52; Peckham v. Taylor, 31 Beav. 250; Arthur v. Clarkson, 35 Beav. 458; Petty v. Petty, 22 L. J. Ch. 1065; Langley v. Thomas, 26 L. J. Ch. 609 ; Re Richards, 36 Ch. D. 541 ; Brown v. Cavendish, 1 J. & Lat. 606, 637 ; Sledge V. Clopton, 6 Ala. 589; Andrews v. Hobson, 23 Ala. 219; Hill v. Den, 54 Cal. 6; Gotten v. Blocker, 6 Fla. 1, 8 (semhle) ; Gordon v. Green, 10 Ga. 534, 544; Davis V. Moody, 15 Ga. 175 (semble); Massey v. Huntington, 118 111. 80; Lynn v. Lynn, 135 111. 18; Wyble v. McPheeters, 53 Ind. 393 , Gaylord v. Lafayette, 115 Ind. 423, 429 ; Ewing v. Jones (Ind., 1892), 29 N. E. R. 1057 ; Haxton v. Mc'ciaren (Ind., 1892), 31 N. E. R. 48 ; Sherwood v. Andrews, 2 All. 79; Sewall v. Roberts, 115 Mass. 262 ; Von Hesse v. MacKaye, 62 Hun, 458; Wadd i'. Hazleton (1892), 17 N. Y. Sup. 410; Baker v. Evans, Winst. Eq. 109; Pittman v. Pittman, 107 N. Ca. 159, 163; Black- burn V. Blackburn, 109 N. Ca. 488; Dennison u. Goehring, 7 Barr, 175; Cress- man's App , 42 Pa. 147 ; Fellow's App , 93 Pa. 470 ; Stone v. King, 7 R. I. 358 ; Henson V. Kinard, 3 Strob. Eq. 371 ; Sargent v. Baldwin, 60 Vt. 17 ; Ilardman v. Orr, 5 W. Va. 71 Accord. " When the estate was by legal conveyance transferred to a person to uses, equity made no scruple in enforcing the trustee to observe the uses. The estate being ac- tually divested out of the owner, it was not necessary to exercise the power of the court over him, and as the feoffee, &c. was a mere trustee, he was considered bound under all circumstances to observe the will of his donor, although the uses were unsupported by any consideration. Therefore a feoffment to A. to the use of B., a mere friend of the feoffor's, who paid no consideration whatever for the estate, was binding, and A. was compellable to permit B. to receive the profits." Sugd. Gilb., Introd., 45. — Ed. SECT. VII.1 SHAKINGTON V. STKOTTON. 109 ANONYMOUS. , 1545. [Reported in Brooke's Abridgment, Feoffments al Uses, pi. 54, March's Translation, 95.] A MAN cannot sell land to I. S. to the use of the vendor, nor let land to him rendring rent, hahend. to the use of the lessor, for this is con- trary to law and reason, for he hath recompence for it : and by Hales, a man cannot change a use by a covenant which is executed before, as to covenant to bee seised to the use of W. S. because that "Wo S. is his fosin ; or because that W. S. before gave to him twenty pound, ex- cept the twenty pound was given to have the same land.^ But other- wise of a consideration, present or future, for the same purpose, as for one hundred pounds paid for the land tempore conventionis, or to bee paid at a future day, or for to marry his daughter, or the like.^ HENRY SIIARINGTON and GABRTEL PLEDALL v. THOMAS STROTTON AND Others. In the Queen's Bench, Michaelmas Tekm, 156a» [Reported in Plowden, 298.] Trespass quare clausumf regit. The defendants justified as servants of Edward and Agnes Baynton, whose title was founded upon an in- denture between Edward and his brother Andrew Baynton, whereby Andrew, being seised of tlie close in question, by an indenture reciting his intent that the land might continue and remain to such of the blood and name of Baynton as in the indenture should be named, for thd .said cause, and for the good will, brotherly love, and favor wiiich he bore to Edward his brotlior and liis otlier l)rothers named, covenanted and granted that he and his heirs shouUl stand seised thereof to tlie use of * " Tnmrn plnrr-s rontra mm tempore y[. T. [15531, and thiit tliis iiiny lio good for ooiiHidr-nitioii pjist." Hrooko's note to his abridgment of tliis case. Tiie case referred to by Brooke is, donhtloBH, Ijainton'a Case, I)y. 96. i Ward V. Laml.crt, Cro. Kl. .'!;»4 ; 2 Koll. Abr. 783 (II.), pi. 7; 22 Vin. Abr. Uses (H.), ])1. 7, n. 0.; U»born v. Bradsliaw, Cro. .lac. 127 ; Crossing v. Scndamon>, 1 \'cnt. 137 Accord. " In a special verdict in agreoninnt, the only point was, whothor a lease for a year, made upon no other consideration tiian tlie reserviition of a ])ep|)<>r-corn, shall operate &n a bargain and sale, ami make the lessee capable to take a release? El per Curiam, it shall, for the reservation of a pcpper-cf)rn is a sulTirient consideration to raise aa nae." 3 Salk. 387 ; 2 Veut. 35 ; 2 Mod. 249, 8. c. — Eo. 110 SHARINGTON V. STROTTON. [ciIAr. L himself for life, and after liis death to the use of Edward and Agnes his wife for their lives, with divers remainders over. Andrew died. Edwiird and Agnes claimed as legal tenants for life under the indenture and the Statute of Uses. The plaintiffs demurred upon the defendant's plea. J^/eeticood -Mid Wrai/, for the plaintiffs, said that the matter of the bar was insullicient, and that there was no use here made by this in- denture, nor was any possession conveyed to the said Edward Baynton and Agnes bj' the Statute of Uses upon this covenant and agreement by the indenture. For the}' said, first it is to be considered that An- drew Baynton, at the time of making the indenture, was seised of tlic said manor in fee simple, clear of all estates and interests of any stranger therein, and if he intended to make a stranger have a use in it, he ought to have taken one of these two wa3S to raise such use. The one is, to part with the possession, by the circumstances required b}- the common law, to the use intended, as to make a feoffment, to levy a fine, or to suffer a recovery of the land to the use intended ; and this way the common law is satisfied, as well as the party also who has the use, for the circumstances of the common law are pursued, and the use is no more than a confidence annexed to the estate which the person parts with, and when he parts with the estate by his own con- sent, he ma}' make it upon confidence, and this way the use is properly made. The other way is, to keep the land in his hands without parting ■with it, and 3'et to do such a thing as shall make the possession to be to the use of another, and that cannot be unless the thing done imports in itself a good and sufficient consideration to make the possession be to the use of another, which shall he upon a contract, or upon a cove- nant or grant on consideration. As if a man is seised of land in fee, and bargains and sells the land to another in consideration of a certain sum paid to him, or agreed to be paid at a certain day, here is a con- tract, and the bargainor shall be seised to the use of the bargainee by the course of the common law, because he has done an act upon consideration, that is, he has bargained the land for mone}' ; and inas- much as he hath the mone}', or securit}' for it, it is reasonable that the bargainee should have something for it, and the land he cannot have as his own, because he had not livery of seisin, and therefore reason has necessarily vested the use in him, which is but a right in conscience to have the profits, and to have the land ordered according to his will ; and if the bargainor will not permit him so to have it, reason vests in the bargainee a title to compel him by the Judge of conscience to do it. So is it in the case of a covenant upon consideration, as if I promise and agree with another that, if he will marry ray daughter, he shall have m\- land from thenceforth, and he does so, there he shall have a use in m}- land, and I shall be seised to his use, because a thing is done whercb}' I have benefit ; viz. the other has married my daughter, whose advancement in the world is a satisfaction and comfort to me, and ^ The author's statement of the case has been much aliridged ; the greater part of the defendants' argument and the marginal notes are also omitted. — Ed. SECT. VII.] SHARINGTON V. STROTTON. Ill therefore this is a good consideration to make him have a use in my land. So that a good consideration is always requisite to create a use de novo in the land of another, where there is uo transmutation of the possession of the land. Then in our case here, inasmuch as Andrew Baynton was seised of the land in fee simple, and intended to raise uses in it without any transmutation of the possession, which he cannot do by the course of the common law, unless the circumstances pursued in the raising of such uses import a good and sufficient consideration to support the same, for this reason we ought to weigh the considera- tions here, and see what substance they have in the law. And the causes contained in the indenture are three ; first, a desire which he had that the lands might come, remain, and descend to the heirs males of his bod}- limited in the indenture ; secondly, his intent that the lands should continue and remain to such of the blood and name of Baynton as are named in the indenture ; tliirdlv, the good will and brotherly love and favor which he bore to his brother Edwaixl Baynton, and to his other brothers. And these are all the considerations for the matter in the rehearsal, viz. that the said Andrew had no issue male, and that he was determined and resolved how his manors and lands should remain and be as well in his lifetime as after his deatli, is no considera- tion at all, but the want of issue male is the cause tliat moved him to vesolve, and the resolution is but a demonstration of his mind, and none of them is an\' consideration, for the considerations are the three before mentioned. And as to the first, viz. his desire that the lands might come to the heirs males of his bod}-, this does not seem to be anv consideration to the father, for the father has no gain or advantage by it, but tlie heirs males of his body. And the consideration ought to be to hiin that is seised of the land, for if he has no recompense there is no cause wh}' the use of his land should pass. And none of the considerations contain a recompense here, for the continuance of the land in his blood and name of Bajnton is no recompense to him, nor cause worthy to raise a use ; no more is the brotherly love and favor wliich he bore to Edward Baynton, or to his other brothers, for although these causes induce affection, yet every affection is not a suffi- cient cause to alter the use. For if a man grants to J. S. that in con- sideration of tlicir long acquaintance, or of tiieir great familiarilv, or of tiieir being scholars together in their youth, or upon such like con- siderations, he will stand seised of his land to his use, this will not change the use, for such considerations are not looked upon in the law as worth}' to raise a use, l)ecause thoy don't itnport any value or recom- pense. For if u[)on consideration that you are my familiar friend or acquaintance, or my brother, I promise to pay you £20, at such a day, you shall not have an action upon the case, or an action of debt for it, for it is but a nude and barren contract, et er nxido pacto nan oritur actio, and there is no sufficient cause for the payment, nor is fin\lhing done or given on the one i)art, for yon were my lirother or my ac(ju:iiiitr ance before, and so will you be afterwards ; so that nothing is newly 112 SIIAUINGTON V. STROTTON. [CHAP. L done on the one part, as is requisite in contracts, and also in covenants ui)on consideration. As if I sell my horse to you for money or other rccompor.se, here is a thing given on both sides, for the one gives the horse, and the other the money, or other recompense, and therefore it is a good contract. So is it in the case of a covenant upon considera- tion, as if I covenant with you, that if you will marry my daugliter you shall have my land, or I shall bo seised to your use ; here is an act on both parts, for you are to marry my daughter, and for that I giant to you the use : so that there is an act done, and a cause arising newly on each part. But in the principal case there is no such thing, for the issue male of Andrew Baynton should have been his issue male, and his name and blood should have been his name and blood, and his brothers should have been his brothers, and fraternal love should have been between them, if this covenant or grant had not been made, so that all this was before the indenture or covenant, and should have been after the time of the indenture or covenant, if the same had not been made. Wherefore no new thing is here done or caused bj- the one side, and there is no cause here but what would have been if no such covenant or indenture had been made. But the common law re- quires that there should be a new cause, whereof the country' may have intelligence or knowledge for the trial of it, if need be, so that it is necessary for the public weal. For liverj' of seisin was first invented as an act of notoriet}", whereb}^ people might have knowledge of estates, and be more al)le to try them, if they should be empanelled on a jury ; and by tlie like reason when a use shall pass, there ouglit to be, b}' the common law, a contract, or a public and notorious consideration to a covenant, which may cause the country to have knowledge of the use for the better trial thereof, if it should be necessary. And such was the intention of the Parliament in 27 Henry VIII. when they made the Act that the possession should be where the use was, one of the great causes of making which Act was to remove ignorance, and that the country might know in whom the estate of the land was. And the like consideration they had in making the Act of Enrolments, which re- strains estates of freehold from passing by bargain and sale, except it be by writing indented enrolled within six montiis. And if uses might be so easily raised bj' covenants upon such considerations as these here are, where no act or thing apparent is done whereof the country may have notice, it would destroy the effect of the said Statute of Uses, and would be pernicious to the public weal, and make it very difficult for the people to know who were the owners of lands and tenements. And it is to be presumed that the makei-s of the said Act of Enrolments did not take the common law to l)e so, for if they had they would have remedied it in this case, as well as they did in the case of a ])argain and sale, which is much more notorious than a cove-' nant upon such secret consideration, where no apparent act or thing' is done to inform the country of the alteration of the estate in the land ; and forasmuch as they did not add any remedy to it, it is an argument SECT. VII.] SHARI^■GTOX V. STKOTTON. 113 that they did not take the law to be that uses might pass upon such covenauts wiihoiit notorious considerations. But if the use had been in esse, it might well enough have passed to a stranger by the grant of cestui que use without an}' consideration ; for the cestui que use may as ■well give or graut his use witliout consideration, as he may his horse or other chattel, and he may also devise it, but to create it de novo out of lands cannot be done without good consideration. And to this pur- pose they alleged the opinions of Read and Tremail, two of the Justices of the King's Bench, in the case of an office traversed in 21 Henry VII. and the case there put b}- Read, fol. 19, was also cited, viz. it was cov- enanted by indenture between Sir John Mordant and his wife, and one T. that the said T. should have the land to him and to his heirs of his body, and that for default of such issue, the lands should remain to Sir John Mordant and his wife in fee, and it was adjudged that he should not have any use b}- force of the indenture, as it is there rehearsed by Read, but they were put to their action of covenant. So here no use shall be raised upon these considerations, for they are utterly ineffectual to such purpose, and then if no use could be raised by the common law, from thence it follows that the statute does not execute any pos- session here, for it executes no possession but where there was a use before ; for which reason the bar is not good, but the plaintiffs shall recover. And many other tilings were said, and manv cases put to enforce this argument, which I have omitted, my design being onl}' to show brief!}' the principal reasons thereof. Bromleij, and an Apprentice of the Middle Temple, for tlie defend- ants. The Apprentice divided tlie matter into two distinct points. First, whether the grant and agreement upon tliese considerations (ad- mitting it had been without deed or writing) had been sufficient to raise the uses according to the agreement or not. Secondly', admitting the considerations to be insufficient it thoy had been without deed, or admitting lliat thei'e were no considerations at all, if nevertheless the uses shall be raised here, inasmuch as the agreement thereunto is by deed. And as to the first point, which contains the considerations, he said that tlio consi(h'rations arc in number four, and each of tliem is several, and he made several points of tliem, and argued to tliem severally. The first is, the affection of the said Andrew Baynton for his heirs males which he should beget on the body of ?>ances Lee, and his [)ro- vision in the estate made for their security accordingly. The second eonsid<'ratif)n is the continuanc(\ of the land in the name of Baynton, and this seems to be a good consideration to raise a use. The lliird consifleration here is, the brotherly love, and continuance of the land in such of the blood of the said Andrew as arc mentioned in tlu! in- denture, viz. his brothers. The fourth consideration is the marriage had between Kflward Baynton and Agnes iiis wife ; for the use; is lim- ited after the death of Andrew to Kdward Baynton and Agnes his wife, for term of their lives. 8 11-4 SIIAUINGTOX V. STROTTON. [CHAP. I. Then as to the second point, admitting the considerations to be in- suHicient, or admitting that no consideralious had been expressed, yet the covenant of itself, without consideration, is suflicieut to raise the uses. And in order to understand this the better, let us see what ad- vantage the party here shall have by the deed, if the deed be not sutli- cient to raise the uses. And it seems clearly that he shall have none. For he cannot have an action of covenant upon the deed, because there is nothing executor}- here ; for Andrew has covenanted with Edward that he and all persons seised of the land shall from thenceforth stand and be seised to the uses limited. And if they did not stand seised, there is no default in Andrew, but in the law, for he granted that from thenceforth, viz. immediatel}', he would be seised, and no default can be charged in him if he did not stand seised. Nor can Edward have an action of covenant against him, for an action of covenant shall never be brought, but w'here it is covenanted that a thing shall be done in time to come, or that it was done in time past. And, Sir, by the law of this land there are two ways of making con- tracts or agreements for lands or chattels. The one is, bywords, which is the inferior method ; the other is, by writing, which is the superior. And because words are oftentimes spoken by men unadvisedly and without deliberation, the law has provided that a contract by words shall not bind without consideration. As if I promise to give 3-ou £20 to make your sale de novo^ here you shall not have an action against me for the £20, as it is affirmed in the said case in 17 Edward IV., for it is a nude pact, et ex nxido pacto non oritur actio. And the reason is, because it is by words which pass from men lightly and inconsid- erately, but where the agreement is by deed, there is more time for deliberation. For when a man passes a thing by deed, first there is the determination of the mind to do it, and upon that he causes it to be written, which is one part of deliberation, and afterwards he puts his seal to it, which is another part of deliberation, and lastl}' he deliv- ers the writing as his deed, which is the consummation of his resolu- tion ; and by the delivery of the deed from him that makes it to him to whom it is made, he gives his assent to part with the thing contained in the deed to him to whom he delivers the deed, and this deliver}' is as a ceremony in law, signifying full}' his good will that the thing in the deed should pass from him to the other. So that there is great delib- eration used in the making of deeds, for which reason they are received as a hen final to the party, and are adjudged to bind the party without examining upon what cause or consideration they were made. And therefore in the case put in 17 Edward IV. put it thus, that I by deed promise to give you £20 to make your sale de novo., here you shall have an action of debt upon this deed, and the consideration is not ex- aminable, for in the deed there is a sufficient consideration, viz. the will of the party that made the deed. And so where a carpenter, by parol without writing, undertook to build a new house, and for the not doing of it the party in 11 Henry IV. brought an action of covenant against SECT. VII.] SHARINGTON V. STKOTTON. 115 the carpenter, there it does not appear that he should have anything for building the house, and it was adjudged that the plaintiff should take nothing by his writ : but if it had been b}- specialty, it would have been otherwise ; and so it is there held b}' Thirning, causa qua siqn'a. So in 45 Edward III. in debt, the plaintiff counted that a covenant was made between him and the defendant, that the plaintiff should marry the defendant's daughter, and that the defendant should be bound to him in £100, and he said that he had married his daughter ; and the count was challenged, because this debt is demanded upon a contract touching matrimon}-, which ought to be in Court Christian ; but not- withstanding this, forasmuch as he demanded a debt upon a deed, whereb}' it was become a lay contract, he was put to answer : but otherwise it would have been if it had been without deed, as it is there put; and 14 Edward IV. and also 17 Edward IV. are, that if it be without deed the action does not lie, because the marriage, which is the consideration, is a thing spiritual ; which books are contrary to the opinion of Thorp in the said case in 22 Ass. Plow., fol. 305, So that where it is by deed, the cause or consideration is not inquirable, nor is it to be weighed, but the part}" ought onl}- to answer to the deed, and if he confesses it to be his deed, he shall be bound, for every deed imports , in itself a consideration, viz. the will of him that made it, and there- fore where the agreement is bv deed it shall never be called a nudum pactum. And in an action of debt upon an obligation, the considera- tion upon which the party made the deed is not to be inquired, for it is sufficient to sa}' that it was his will to make the deed. And so inas- much as in the principal case it is agreed that the uses might be raised by the deed, if there had been a consideration in it, and here there is a consideration contahied in the deed, viz. the will of Andrew Baynton, which is sufficient of itself, for tiiis reason the uses shall be raised thereby ; and if this should not be sufficient to raise them, yet they should have been raised l)v other considerations, if they iiad been with- out deed, whereas here they are by deed, and so they shall l)e raised a fortiori. For which reasons they prayed judgment that the plaintiffs might be barred. And many other things were said, and cases put to enforce these arguments. And after tliesc arguments the Court took time to deliberate unlil Ilil- ar3'Tcnn, and from tlience until Easter Term, and from thence until this present Trinity Term, in theeigiith year of the reign of the present Ciueen, and the defendants now prayed judgment. And Corbp:t, Justice, said that he and all his companions had resolved that judgment should be given against the phiintiffs. For it seemed to them that tlie considera- tions of the continuance of the land in tiie name and blood, and of broth- erly love, were sufficient to raise the uses limited. Ihit, lie said, as my Lord Chief Justice is not now present, you must move it again when he is present, and you shall have judgment. And afterwards, at another day, Catline, Chief Justice, being present, the Apprentice prayed judg- ment. And Catlink and the Court were agreed that judgment should 116 PAGE V. MOULTON. [C'HAP. I. be (Mitored against the plaintiffs, and he ordered Haywood, the Protho- notury, to enter it. And the Apprentice said, may it please your Lord- ship to show us, for our learning, the causes of your judgment. And Catlike said, it seems to us that the affection of the said Andrew for the provision of tlie heirs males which he sliould beget, and liis desire that tlio land should continue in tlie blood and name of IJaynton, and the brotherly love which he bore to his brothers, are suflicient consid- erations to raise the uses in the land. And where you said in your argument natarce vis maxima, I say natura his maxima^ and it is the sireatest consideration that can be to raise a use. But as to the otlier consideration moved in the argument, viz. of the marriage had between Edward Baynton and Agnes, the record does not prove tliis, nor is it so averred, and it shall not be so intended, and therefore I don't regard it, but the other causes and considerations are effectual, and those which moved us to our judgment. Wherefore judgment was given for the defendants. Note, that by the civil law nudum, pactum, is defined thus : Nudum pactum est ubi nulla suhest causa prceter conventionem, ; sed ubi subest causa, Jit obligatio, et parit actionem. Also, Nuda jmctio est tenuis et destituta tam 7iomi7ie jjroprio, quam mutatione rerum, et fadoruin, m,anens in simplici paciscentium colloquio. PAGE V. MOULTON. In the Queen's Bench, Michaelmas Term, 1570. [Reported in Dyer, 296 a, placitum 22.] The father, upon communication of marriage of his youngest son, promised to the friends of the wife that after his death and the death of his own wife the son should have the land to him and his heirs. And the marriage is had ; but this promise is by parol only, and no consideration on the part of the woman : and the father was seised of the land in his demesne, and not in use ; and this found by special verdict upon not guilty. Whether the use changes by this covenant or not was the doubt. And by the opinion of all the four justices of the bench, without open argument, the use is not altered by such naked promise; and so adjudged in next Hilary Term.^ 1 This case is summarized in Crompton, Courts, f. 61 a, with the following com- ment ; " But I collect, if any consideration had come from the side of the woman, that the use would change by this agreement because there is quid pro quo, although it be by parol. And Manwood, C. B. [1578-1592], .says that it was adjudged that if one say to his son and a woman that he is about to marry, that in consideration of the same marriage that they shall have the said land to them two in tail, this is a good tail without deed or other circumstance, if they marry together, ut patet aprrs." See also CromptoD, Courts, f. 61 b ; Shepp. Touch. (7th ed.) 508; Shepp. Epit. I06I. — Ei«, SECT. VII.] CALLARD V. CALLARD. 117 TAYLOR V. VALE. In the Queen's Bench, Michaelmas Term, 1589. [Reported in Croke, Elisabeth, 166.] Replevin. The case was upon demurrer. Vale, having a rent charge in fee by indenture, which was enrolled within six months, giveth and granteth it to Hall, in fee, and there was no attornment. NoTA. In truth the case was, that he for a certain sum of money giveth, granteth, and selleth the rent, &c. But it was pleaded only, tbat he by indenture declit et concessit. And it was ruled without any argument, that the rent without attorn- ment passeth not, being only by way of grant, and not of bargain or sale ; although the deed was enrolled. — But Wkay said, that if by in- denture, in consideration of a certain sum of money, dedit et concessit and the deed is enrolled, this shall pass tlie rent without attornment, though there be no words of bargain and sale. — And the plaintiff had judgment. CALLARD V. CALLARD. In the Queen's Bench, Michaelmas Term, 1594. [Reported in Croke, Elizabeth, 344.1] In the Exchequer Chamber, Michaelmas Term, 159G. [Reported in Moore, 687, placitum 960.2] Ejections firm;e. The case upon special verdict was, that Tliomas Callard, being sei.sed in foe of certain land, in consideration of a mar- riage of Eustace, his eldest son, said these words (being upon the land) : " Eustace, stand forth; I do here, reserving an estate for my own and my wife's life, give thee these my lands and Barton, to thee and thy heirs." The question was, if tliis w.as a good feoffment to Eustace.' Cuke, Altorne}/ Gcnr.ml, for tin; plaintiff. Tiiere are two points to be considered. First, if this shall inure as a feoffment to the use of 1 H. c. Pfipham, 47. — En. 2 8. c, nom. Tallanle v. Tallanlo, 2 And. 64. — En. " " And it w.ifl moved liy Ilenle that tlio plaintiff onj^lit to ho. harrrd lioranso it did not pass by way of estate . . . and ir) use it cannot pass, because tliat 1)y a bare j)arol an use cannot ho raised, and hy giving my land to my son, cousin, and the like, nothing will pass without livery, for there is not consideration to raise a use." 8. c. Topham, 47. — Eu. 113 CALLARD V. CALLARD. [CHAP. I. Thomas Callard autl his wife for theii- lives, aud after to the use of Eus- tace aud his heirs ; or if it be au immediate feoffment, and the reserva- tion void. Second!}', if it be not a feoffment, if the words spoken, being in consideration of marriage, the use shall arise out of the pos- session of Thomas, and shall execute by the Statute of Uses, although it be without deed. First, it seemeth that it is a good feoft"ment, and the use shall arise upon it, although the words reservant are first ; for so the court is to consider it, to make all to stand together : and in '22 Elizabeth, between Hare and Barton, it was adjudged that where one giveth lauds to J. S., reserving a rent to the feoffor and his heirs, habendum to the feoffee and his heirs, the reservation being before the habendum, yet the feoffment being by indenture, it is well enough, for the law shall marshal it according to the intent. So here it shall be intended as following, aud to sliow the intent of the parties, and not to make it all void. Secondly, admitting that the reservation is repug- nant, aud it can be no feoffment, yet the use shall arise and execute by parol, for it is out of the Statute of Enrolments ; for this doth not hinder the raising of any uses, but only upon bargains and sales, which shall not execute by bargain and sale, but by indenture enrolled ; but all other uses are at the common law, which arise upon consideration upon marriage, &c. But he did agree that a use shall not arise upon general words, or words spoken infaturo, but in prcesenti; as to say, " If you do such a thing, I will give you my land." But upon words spoken advisedly, and by reason of a valuable and great considera- tion, and spoken in irroeseyiti, as, " I do here," &c., which is an imme- diate gift. And he had seen the record of the case 12 Elizabeth, Dyer, 296, and the words were upon communication of a marriage to be had ; " I will assure after my death Old-Acre to my son," it was ruled no use ariseth, and the reason seemeth to be that the words were spoken infuturo; and therefore if one saith to his son, in consideration he is his son, " I do give thee my manor of D.," this is sufficient to raise a use ; for they being words spoken with advisement, and for considera- tion, it shall be intended a gift of the land. Gawdy. I have not seen any book that at the common law a use shall arise by parol, but in a bargain and sale which is by reason of the consideration given for the land, and that is the reason that a fee doth pass without the word " heirs " ; and in this case a use shall not arise, for it appeareth his intent was to pass the land by way of feoff- ment when he saith, " Stand forth ; I do here give thee this land," &c., which is void by way of feoffment, for the reservation preceding it is repugnant to the livery, for it cannot inure in faturo. Fenneu. The reservation is void, and it shall inure to Eustace presently ; and a use by parol upon good consideration is sufficient. Clench. It shall inure as a feoffment to the son, and a use shall arise to the father, &c., and so the intent of all the parties shall be observed. At another day it was moved again ; and Popham said they were all resolved that judgment shall be given for the plaintiff (who claimed SECT. VII.] CALLARD V. CALLARD. 119 under Eustace) ; and being moved to show the reasons of their judg- ment, they would not. But Gawdy said he was clear of opinion that a use shall not arise by parol. -^ PoruAii and Fexneu said they were ■ " Gawdy said, That the words as they are spoken amount to a livery, if the words are sufficient to pass tlie estate, but he conceived that the words are not sufficient to make the estate to pass to the said Eustace, because his intent appeareth, that Eustace was not to have the laud until after the death of him and his wife, and therefore of the same effect, as if he had granted the laud to the said Eustace after his death ; and as an use it cannot pass, because by a bare word an use cannot be raised, as appeareth in divers reports. " Mich. 12 & 13 Eliz., which is a good case to this purpose. But to say generally that an use cannot be raised or charged upon a perfect contract by words upon good consideration, cannot be law ; and therefore it is to be considered what the law was before the statute of 27 Henry VIII. And I think that none will deny, but that by grant of land for money, before tiiis statute an use was raised out of the same land, for a bargain and sale of land for money, and a grant of land for money is all one, and no difference between them : And is not a grant of land made in consideration of marriage of my son and daughter, as valuable as a grant of it for money? It is clear that it is, and much more valuable, as my blood is more valuable to me than my money ; and therefore it is absurd to say, that the consideration of money may raise or change an use at common law, and not such a consideration of marriage. " And in such a case at common law there was not any diver.sity, that the party who so grant or bargain for the one or the other considerations was seised of the land granted, or bargained in use, or possession, but that the use by the contract was trans- ferred according to the bargain in both cases where there is a consideration : And. wiiere through all the law shall it be seen that if anything which might pass by contract, there need any other thing than the words which make the contract, as writing or the like testifying it: And that the law was .so, it appeareth by the Statute of Inrulments of Bargains and Sales of Land made, 27 Henry VIII., whicli enacts, that no freehold, nor use thereof shall pass by Ijargain and sale only, unless it be by deed indented and enrolled according to the Statute; Ergo, if this statute had not been, it had pa.ssed by the bargain and sale l)y bare words; and inasmuch as the statute enacts tiiis in the case of bargain and sale only, tiie other cases, as this case here, are as it was before at common law. And by an exception at the end of the same statute, London is as it wius at common law, and tiiercforo now lands may pass tiiere at tliis day by bargain and sale, by word witliout deed, for it is out of the statute : And liow can wo nay that the Statute of Uses does anything to alter the cominon law in this point, by any intent of the makers tliereof, wlicrf;as at the same I'arliamont they made an es- pecial law in the cuse of l)argain and sale of lands. And at tiiis day, for tlie lands in London, notwithstanding the Statute of Uses, the law hath been put in practice, and alw.'iys hr)lden ;i3 to tlie lamls there to be good, if sold by bare ])arol as it were at common law. And I liavc heard it rc|)ortod by Manwood, late Chief l^arcjn of the i^xchequer, that it wan in question in the time of King Edward the Sixth, wlietiier the use of a freehold of land will pa.-;s upon a contract by parol witliout deed in consid- eration of marriage; upon wliicii all the then justices were n«.seml)led u])on a doulit rising in a case, liap[)ening in liie .Star ("hamlicr, and then resolved liy all tlie justices (us lie said) th.at it siiall pa.ss ; and he .said, tliat himself was of tiiis opinicm also: And to 8.iy, that by grant of land at common law, tiio use had been raised out of the pos- BCS.'^ioiiH nf the laml which the graiitur tiicn h;id, ami by it to pass to the bargainee, iuid that it shall not be raised and ])assed to anoliier by grant of lanth of November, 1807, the testator authorized him to purchase in France an annuit}' of £100 for the benefit of tlie said ^M.'irie Genevieve Garos for her life, and (o draw on him for £1, .000 on account of such purchase; and under that author- it}' Dubost purchased an annuity of tliat value ; but that, as she was married at the time, and also deranged, the annuity was purchased in the name of the testator ; and the testator sent to Dubost, by his desire, a power of attorney, authorizing him to transfer to Marie (Jencvievc Garos the said :iiinuity, dated the 10th of June, 1808. The report further found, upon the aflidavit of Dubost and the copy of the deed, that the first intimation he received of the death of the testator, who died in June, 1S09, was in November, 180:> : and that, in ignorance of such death, Duliost, on the 21st of Octolier, 1H0!». exer- cised the power vested in him, by executing to Marie Genevieve Garos, 124: PYE, DUBOST, EX PARTE. [CIIAP. I. her late hnsbantl being then dead, and she of sound mind, a deed of gift of the said annuity ; and the Master found that, by the law of Trance, if an attorney be ignorant of the death of tlie party who has given the power of attorney, whatever he has done while ignorant of such death is valid. The Master, therefore, stated his opinion that the annuity was no part of the personal estate of William Mowbray. The first ' petition prayed that so much of the report as certifies the French annuity to be no part of the testator's personal estate may be set aside ; and that it may be declared that the said annuity is part of his personal estate. Sir Arthur PxrjgoU, Mr. Bichards, Mr. Wlngfield, Mr. Home, and Mr. Wear., for different parties, in support of the first petition. The French annuity being purchased in the testator's name, and no third per- son interposed as a trustee, the interest could not be transferred from him without certain acts, which were not done at the time of his death. It was therefore competent to him, during his life, to change his pur- pose, and to make some other provision for this lady by funds in this country- ; conceiving, perhaps, that she might return here. The author- it}' given to purchase this annuity could not have been enforced against him during his life \)y a person claiming as a volunteer ; nor can it be established against his estate after his death, the act which would have given the benefit of it against the personal representative not having been completed. "Where a question is to be decided by a foreign law, the first step is an inquiry by the Master to ascertain what is the law of that country. Sir Samuel Komilly and Mr. Bell., contra. The Lokd Chancellor [Eldon]. The other question involves not only the construction of the French law, and the point whether that has been sufBcientl}'^ investigated, but further, whether the power of attornej^ amounts here to a declaration of trust. It is clear that this court will not assist a volunteer ; yet, if the act is completed, though voluntar}', the court will act upon it. It has been decided that, upon an agreement to transfer stock, this court will not interpose ; but if the party had declared himself to be the trustee of that stock, it be- comes the propert}'^ of the cestui que trust without more ; and the court ■svill act upon it. Jime 13th. The Lord Chancfxlor [Eldon]. These petitions call for the decision of points of more importance and difficulty than I should •wish to decide in this way, if the case was not pressed upon the court. With regard to the French annuity, the Master has stated his opinion as to the French law, perhaps without sufficient authority, or sufficient inquiry into the effect of it, as applicable to the precise circumstances of this case ; but it is not necessary to pursue that, as upon the documents ])efore me it does appear that though in one sense this may be repre- sented as the testator's personal estate, yet he has committed to writing ^ Only so much of the case is given as relates to the petition — ''i^D. SECT. VII.] FLOWER V. MARTEN. 125 what seems to me a sufficient declaration that he held this part of the estate in trust for the annuitant.^ Under this judgment, the order was pronounced dismissing the first petition. FLOWER V. MARTEN. In Chancery, before Lord Cottexham, C, April 6, 8, 1837. [Reported in 2 Mylne Sf Craig, 459.] This bill was filed by Sir James Flower for the delivery up of a bond for £4,500, which had been given by him to his father, under the following circumstances. The plaintiff, the son of Sir Charles Flower, became, in the year 1822, embarrassed in his circumstances, and a misunderstanding hav- ing, in consequence, taken place between him and his father, the latter applied to the defendants, Messrs. Muspratt and Marten, his old and mtimate acquaintances, to interfere between himself and the plaintiff, and to assist in adjusting the differences then existing between them. This duty they accordingly undertook, after exacting from both par- ' The validity of a gratuitous declaration of tru.'st is now generally admitted. Wheatley v. Purr, 1 Keen, 5.51 ; Smith v. Warde, 15 Sim. 56 (semble) ; Thorpe v. Owen, 5 Beav. 224 , Drosier v. Brereton, 15 Beav. 221 , (iray i'. Gray, 2 Sim. n. s 273.; Steele V. Waller, 28 Beav. 466 ; Forbes c. Forbes, 30 Law Times, 176 (semble) ; Evans v. Jen- nings, 6 W. R. 616 ; Gee v. Liddell,35 Beav. 621 ; Jones v. Locke, 1 Ch. Ap. 23 (semble) ; Armstrong v. Tim])eron, 24 L. T. Rep. 275 ; I'ethybridge v. Burrow, .53 L. T. Rep. 5 ; Johnstone v. Mappin, 64 L. T. Rep. 48; Willcocks v. Hannyngton, 5 Ir Ch. 38; Kelly V Walsh, 1 L. R. Ir. 275 ; Tiffany v. Clarke, 6 Grant, Ch. (Can.) 474 ; Linton o. Browii, 20 Fed. Rep. 455 ; Crompton v. Vas.ser, 19 Ala. 259, 266 (semble) ; Sayrei-. Weil (Ala.), 10 S. R. 546 ; Webb's Estate, 49 Cal. 541 (semble) ; Cotteu v. Blocker, 6 Fla. 1,8 (semble) , Dresser i'. Dre.sser, 46 Mo. 48 (semble) , Cobb v. Knight, 74 Me 253 ; Barkley v. Lane, 6 Bush, 587 , Tanner v. Skinner, 11 Bush, 120; Smith i'. Darby, 39 Md. 268 ; Taylor I' Henry. 48 .Md S'lO, 560 ; (ierrish v. How Bedford Inst, 128 Mass. 159; Alger »; North End Bank, 146 .Ma.'*s. 418; Smith v. Speer, 34 N. J. Eq. 336; Millspangh v. Putnam, 16 Abb. Pr. 380 ; Taylor i-. Kelly, 5 Hun, 115; Boone v. Citizens' Hank, 21 Hun, 235 ; Terry v. Bale, I Deni.452, We.stlako v. Wheat, 43 Hun, 77 ; Fowler v. Bowery Bank, 47 Hun, 399, Phipanl r. Pliipar. In the following cases the language was considered not to import nn intention on the part of the speaker or writer to make himself a trustee; lie Webb, 49 Cal. 541 ; Marshall i-. Strange (Ky. 1888), 9 S. W. Rep. 250. 126 FLOWER V. MARTEN. [CHAP. L ties (the father ami son) a pledge and promise that tliey would abide by aud perform whatever course Messrs. Muspratt aud Marten should I'ecomnioud. Having thus undertaken the mediation, they proceeded to investigate the affairs of the plauitiff, and they embodied the result of their determination in a letter addressed to Sir Charles Flower, dated the 28th of November,, 1822, in which, after recommending that Sir Charles Flower should discharge his son's debts, and that any available funds of the plaintiff should be applied towards the pay- ment of the money advanced, they recommended and determined a8 follows : — " That your son shall give you his bond, bearing date from the last payment of any sum in the aforesaid statement, for £4,500, in satis- faction of pecuniary claims upon him, including the payments in the said statement to be yet made, such bond to be payable on demand, with interest at £\ per cent per aunum, but the bond is to remain in our hands, and not to be acted upon for the recovery of principal or interest within six years from the date of the bond, without the con- sent in writing of us, or of the survivor of us ; and, moreover, that in case we or the survivor of us shall at any time within six years, by a memorandum in writing, direct the bond to be delivered up and can- celled, such cancellation, or an order from us or the survivor of us for that purpose, shall operate as a total extinguishment of the debt, both as to principal and interest." A bond was accordingly executed by the plaintiff to his father, in the penalty of £9,000, subject to the following condition : " Whereas, the said Sir Charles Flower has agreed to accept from the said James Flower, his son, the above-written bond or obligation, with a con- dition for payment of £4,500 and interest, as hereinafter mentioned, in full satisfaction of all claims and demands upon him, and the said James Flower has agreed to enter into and execute such bond accord- ingly, but under the special understanding and agreement of both parties, and particularly of Sir Charles Flower, that the said bond shall remain in the hands of Robert Humphrey Marten and John Petty Muspratt, of the city of London, merchants, and shall not be acted upon for the recovery of principal or interest within six years from the date thereof, without the consent in writing of them, or of the survivor of them ; and, moreover, that in case they or the survivor of them shall at any time within six years, by a memorandum in writing, direct the said bond to be cancelled, such memorandum or cancella- tion shall operate as a total extinguishment of the debt, both as to principal and interest." A condition then followed for rendering the bond void, on repayment of the £4,500 in 1823. The bond, when executed, was delivered over to Mr. Marten and Mr. Muspratt, and remained in their hands uncancelled at the death of Sir Charles Flower, in 1834. No part either of the principal or interest appeared to have been paid to the obligee in his lifetime. This bill was filed against the executors of Sir Charles, and Mr. SECT. VII.] FLOWER V. iLVETEN. 127 Marten and Mr. Miispratt, by the plaintiff (Sir James Flower), to obtain the opinion of the court, and the plaintiff, by the bill, insisted that the purposes for which the bond had been given had been satisfied, and prayed that it might be delivered up. Mr. Muspratt and Mr. Marten were examined on behalf of the plaintiff, who deposed to the above facts, and particularly that Sir Charles, m conversation held after the arrangement, expressed himself satisfied with the conduct of the plaintiff, and that " his son's conduct was everything that he could wish." It was also proved to have been distinctly understood by the trustees, at the time the bond was exe- cuted, that it was taken by Sir Charles from his son "as a sort of security for the plaintiff's future good conduct and economy, and that it was not to be acted upon or enforced if the plaintiff's mode of living and behavior were satisfactory to his father ; and with those views they recommended the bond to be taken and deposited with them." It appeared that an affectionate intercourse subsisted between them until the death of Sir Charles, and by his will the plaintiff was made tenant for life of the principal part of his very large property.^ Ml'. Wigram and Mr. Fisher, for the plaintiff. Sir W. Home and Mr. James, for the executors of Sir Charles Flower's will. 3Ir. Geldart, for Messrs. Marten and Muspratt. The Lord Chancellor. In this case a large sum of money was advanced by the plaintiff's father for the purpose of paying off the debts of Jiis son. That advance may either have been made by way of a gift, or as a loan to the son. The taking a security' for the amount is, jrrima facie, evidence that the father meant originally to treat the sum as a debt ; but that presumi)tion is capable of being explained away and rebutted ; and even if the sum constituted a debt in the first instance, the debtor, according to the authorities, is at liberty to show tiiat the creditor subsequently altered his intention and treated it as a gift. In the present case, both circumstances concur. Upon the evidence of the gentlemen with whom the bond .was deposited, 1 cannot suppose tliat the father intended to treat the money, which he advanced on his son's behalf, as being, at all events, a debt. He plainly meant to keep alive the security for a time, as a means of controlling and inlluencing the conduct of his son ; and that was the main object of the instru- ment, to which the securing of the sum advanced was only collateral and Hul)sidiary ; but it does not npi>ear from the testimony of the referees tiiat tlie father ever actually dealt with the bond as creating a debt, or as forming a part of his assets. With respect to the six years during which the referees hiul the power of ehtirely discharging the obligation by executing a niemoran- ' The statement of factH, iis given in 6 L. .1. Eq. n. fi. 167, has heen snhstitnted for th.-it in the report ]>y Mylnc & Craig, and the arguments of couubcI liavc been emitted. — Ed. 128 FLOWER V. MARTEN. [CHAP. I. duin to that otYoct. the father had delegated that discretion to them as two of his coiitideutial friends ; and the discretion was wholly incon- sistent with the notion that the bond was given merely, or principally, to secnre the repayment of a sum of money. Within that period, events had taken place which, as the referees themselves state, induced them to tliink that the claim >vas no longer available : the father and son were completely reconciled and united ; and the conduct of the son throughout had been highly satisfactory to the father. Now, if the events took place which would render it the duty of the referees to exercise the trust reposed in them by indorsing upon the bond the pro- posed memorandum, of which the etfect w'ould be to avoid the security and discharge the debt at law, the situation of the plaintiff cannot, in a court of equity, be affected by their omission to do that which they ought, under the circumstances, to have done. That, of itself, would be a sufficient ground on which to rest the plaintiff's title to relief. But there is also another ground, to be de- duced from the principles which were distinctly laid down in the cases of Wekett -y. Raby ^ and Pxlen v. Smyth ; ^ namely, that whether this obligation constituted a debt or not, either originally or during the continuance of the prescribed period, the father subsequently did not intend that it should be treated as a debt due from his son to his own estate, and be put in force accordingly. Nearly six years elapsed after these two gentlemen ceased, according to the letter of the con- dition, to have any authority or control ; nevertheless, throughout the whole of that period the father left the bond in their hands, and treated his son In a manner expressive of his entire reconciliation and satisfaction with him, and showing that, the object of the transaction having been attained, he understood and considered the instrument as no longer subsisting and in force. Both points seem to me to concur in the present case. Upon the evidence, I think that the bond was not, in the first instance, intended to operate as a debt at all events.^ At any rate, the father, by his subsequent conduct and his mode of dealing, showed that he did not mean it should now so operate, but that, in fact, he abandoned any claim in respect of it.* 1 2 Bro. P. C. 386, Toml. ed. 2 5 Ves. 341. 8 A collateral agreement that a bond or other specialty shall not, in a certain event, be enforceable, will, upon the happening of the event, warrant an injunction against an action at law, or it may be pleaded as an equitable defence to such an action, and is of course a bar to a suit in equity. Ward v. Lant, Prec. Ch. 182; Platamone v. Staple, G. Cooper, 250; Major v. Major, 1 Dlcw. 165 ; Peace y. Haines, 11 Hare, 151, 153; Feltz v. Walker, 49 Conn. 93; Pobson ?•. Jones, 3 Del. Ch. 51,90; Nichol v. Nelson, 18 N. Y. W. D. 210; Franc v. Dickinson, 52 Hun, 373 (acmhk); Long v. Cross, 5 Jones, Eq. 323; Hartzell v. Reiss, 1 Binq. 289; Bown v. Morange, 108 Pa. 69. — Ed. * A creditor may extinguish his claim, without consideration, either by a release under seal, or, in the case of a common law or mercantile, specialty, by a surrender or destruction of the instrument of obligation. But a gratuitous parol forgiveness of SECT. VII.] ' MORGAN V. MALLESON. 129 Under such circumstances, the authority of the cases referred to sufficiently establishes the jurisdietiou of the Court to deal with the iustrumeut in question. There must, therefore, be a decree that the bond be delivered up to be cancelled. MORGAN V. MALLESON. In Chancery, before Sir John Romilly, M.R., July 26, 28, 1870. [Reported in Laiv Reports, 10 Equity, 475.] The following memorandum was given by John Saunders, the tes- tator in the cause, to his medical attendant. Dr. Mon-is : — " I hereby give and make over to Dr. Morris an India bond, No. D., 506, value £1,000, as some token for all his very kind attention to me during illness. " Witness my hand, this 1st day of August, 1868, (Signed) " John Saunders." The signature was attested by two witnesses, and the memorandum was handed over to Dr. IMorris, but the bond, which was transferable by delivery, remained in the possession of Saunders. There was no consideration for it. Saunders died more than a year afterwards, having by his will be- queathed the residue of his personal estate to charities. A suit was instituted for the administration of his estate, and a summons was taken out by the Attorney General on behalf of absent charities for the direction of the court on the question whether this memorandum was or was not a valid declaration of trust in favor of Dr. Morris. a debt is inoponilivc, both in eiiuity and at law. Tufncll ?•. Constable, 8 Sim. 69; Cross r. Spring, 6 Ilare, .552; Peace v. Ilainos, 11 Ilarc, l.'il ; Knapp v. Burnaby, 8 W. R. .30.'}; Taylor v. Mannors, 1 Ch. Ap. 48, 5.5 (semlile) ; Strong v. Bird, 18 Eq. ;n5 {semhip); Re Milnoa (fli. I).), .5.3 L. T. Hop. .5.34 ; WoHtnKjrtdand v. Porter, 75 Ala. 452; liobson v. Jones, 3 Del. Ch. 51 ; Adani.son v. Lamb, .3 Blackf. 446; Denman v. Mc.Malin, 37 Tnd. 241 ; Webber v. Conch, 134 M.a.s.'^. 20; Irwin v. Johnson, 30 N. J. E(j. 347 (overruling I.eddel r. Starr, 20 N. J. V.q. 274) ; Traj)hagen r. Voorliecs, 44 N. J. Eq. 21 {semblf) ; Tnlane v. Clifton, 47 N. J. Eq. 351 ; Whitebill r. Wilson, 3 Pen. & W. 405, 413; Keimedy »;. Ware, 1 Barr, 445 (di.screditing Went/, r. Do II;iven, 1 S. & U. 312); Re Camjibell, 7 P.arr, 100, 101 ; .MeCiuirc v. Ailanis, 8 Barr, 280; Kidder V. Kidder, .33 Pa. 20S ; Ilurncr's App., 2 Pennyp. 2S9 ; Ewing ;;. Ewing, 2 Eeigh, 337. But He*!, rnritrn, Green v. Langdon, 28 Miih. 221 ; Gray v. Barton, 55 N. Y. 68; Ferry v. Stephens, 66 N. Y. 321 ; Carpenter v. Sonlo, 88 N. Y. 251 ; in whiih ca.se8 it wa.H held th;it a written receij)t of payment, though gratuitons, extingnishes the claim where extinguishment by surrender is impr.acticable ; c. g. where the claim is not in writing, or where it is desirf>d to forgive only a part of a bond or other specialty. See I-'den v. Smith, 5 Ves. 341 (explained in Koevcs v. Bryan, 6 Ves. 516); Yeo- man V. Williani.s, 1 Ei| 184 — Ed. 9 130 RICHARDS V. DELBRIDGE. [CHAP. I. Mr. Tr/fA'CH.s, for the Attorney General. Mr. Jessel^ Q- C, and Mr. Speedy for Dr. Morris.* July 28. Lord Romilly, M.R. I am of opinion that the paper writing signed by Saunders is equivalent to a declaration of trust in favor of Dr. Morris. If he had said, " I undertake to hold the l)ou Fort Maili.son Co , 72 Iowa, 405 . Young v. Young, 80 N. Y. 422 , Re Crawford, 113 N. Y. 560, Flanders v Blandy, 45 Oh. St. 108 Contra. In Warriner v. Rogers, L. R. 16 Eq 340, Bacon, V. C. said, p 348 " If it were necessary, but I do not think it is, to go further into the case of Morgan v. Malleson, I should require to examine it and consider the facts much more closely than I now think it neces.sary to do in order to determine what the real l)earing of that case is. I am strongly inclined to believe that there must be some imperfection in the report of it, because -what staggers me most is to find that tiie decision as it stands would seem to establish that if a man writes a letter to say, ' I have given ' a bank-note, or an Indian bund, or anything else, ' to A. B.,' and no more, and retains the bank-note or bond and the memorandum in his own possession, that letter has a valid operation as between himself and A. B. If that were all that appeared in the case, I should certainly consider such a letter to be a mere nullity." — Ei>. A deed of gift of a chattel vests the title in the donee without delivery Y. B 7 Ed. IV. f. 20, pi. 21 ; Butler and Baker's Case, 3 Rep. 26 b, Shep Touch. 285; Thompson v Leach, 2 Vent. 198, 203; Wankford v. Wankford, 1 Salk. 299. .301; Irons V. Smallpiece, 2 B. & Al. 551 ; Ward v Audlaud, 8 Beav. 201 , Hope v. Harman, II Jur. 1097 , Lunn v. Thornton, 1 C B. 379, 381 ; Cochrane v. Moore, 25 Q. B Div. 57, 67, 72 ; McCutchen v McCutchen, 9 Port. 650 ; Banks /;. Marksberry, 3 Litt. 275 , Baxter v. Bailey, 8 B. Mon. 336 , Bunn v. Winthrop, 1 Johns. Ch. 329; Fulton V. Fulton, 48 Barb. 581, 590, Duncan v Self, 1 Murph. 466. Jaggers v. Estes, 3 Strob. Eq 379 ; Carries v. Marley, 2 Yerg. 582 ; Ilillebrant v. Brewer, 6 Tex. 45, 51 ; Hogue >' Bierne, 4 W Va. 658 (sfunhle). But see, contra, Mc Willie v. Van Vacter, 35 Miss. 428, — Ed. SECT. VII.] RICHARDS V. DELBRIDGE. 131 That on the 7th of March, 1873, John Delbridge indorsed upon the lease and signed the following memorandum : — " 7th March, 1873. This deed and all thereto belonging I give to Edward Bennetto Richards from this time forth, with all the stock in trade. "John Delbridge." That the plaintiff was the person named in the memorandum, and the grandson of John Delbridge, and had then for some time assisted him in the business ; that John Delbridge, shortly after signing the memorandum, delivered the lease on his behalf to Elizabeth Ann Rich- ards, the plaintiff's mother, who was still in possession thereof. That John Delbridge died in April, 1873, having executed several testamentary instruments which did not refer specifically to the said mill and premises, but gave his furniture and effects, after his wife's death, to be divided among his family. That the testator's widow, Elizabeth Richards, took out administra- tion to his estate, with the testamentary papers annexed. The bill, which was filed against the defendants, P>lizabeth Del- bridge, Elizabeth Ann Richards, and the testator's two sons, wh^ claimed under the said testamentary instruments, prayed a declaration that the indorsement upon the lease by John Delbridge and the deliv- ery of the lease to Elizabeth Ann Richards created a valid trust in favor of the plaintiff of the lease and of the estate and interest of John Delbridge in the property therein comprised, and in the good will of the business carried on there, and in the implements and stock in trade belonging to the business. The defendants demurred to the bill for want of equity. Mr. Fry, Q, C, and Mr. Phcar, in support of the demurrer.' Mr. W. R. Fisher, (Mr. Sou(hr/ate, Q. C, with him,) for the plaintiff. Sir Ci. Jessef-, IM.R. This l)ill is warranted b^' the decisions in Ricliardson v. Richardson and Morgan /;. Malleson , but, on the other hand, we have tiie case of Milroy ?;. Lord, before the Court of Appeal, and the more recent case of Warriner v. Rogers,^ in wliich Vice Chan- cellor Hacon said : " Tiie rule of law upon this sul)jeet I take to be very clear, and with the oxcoption of two csises which have been referred to" (Richard.son i:. Richardson and Morgan v. jNIalleson), " the decisious are all i)erfectly consistent with that rule. The one thing necessary to give validity to a declaration of trust — the indispensable thing — T take to be, that the donor, or grantor, or whatever he may bi; called, should liavn absolutely parted with that uiterest which had liccn his up to the time of the declaration, slioiiM liave effectually changed his right in that respect, and put the property out of his power, at least in the way of interest." 1 Tlio art^iimnnts of roiinsol li.ivo l)ccu omitted. — Ed. 2 Law Kcp 16 Eq 340,-348. 132 RICHARDS V. DELBRIDGE. [CHAP. L The two first mentioned eases are wholly opposed to the two last. That being so, I am not at liberty to decide the case otherwise than in accordance with the decision of the Court of Appeal. It is true the judges appear to have taken different views of the construction of cer- tain expressions, but I am not bound by another judge's view of the construction of particular words ; and there is no case in which a differ- ent principle is stated from that laid down by the Court of Appeal. ^Moreover, if it were my duty to decide the matter for the first time, I sliould lay down the law in the same way. The principle is a very simple one. A man may transfer his property, without valuable consideration, in one of two ways : he may either do such acts as amount in law to a conveyance or assignment of the prop- erty, and thus completely divest himself of the legal ownersliip, in which case the person who by those acts acquires the property takes it beneficially, or on trust, as the case may be ; or the legal owner of the property may, by one or other of the modes recognized as amounting to a valid declaration of trust, constitute himself a trustee, and, without an actual transfer of the legal title, may so deal with the property as to deprive himself of its beneficial ownership, and declare that he will hold it from that time forward on trust for the other person. It is true he fieed not use the words, " I declare myself a trustee," but he must do something which is equivalent to it, and use expressions which have that meaning ; for, however anxious the court may be to carry out a man's intention, it is not at liberty to construe words otherwise than according to their proper meaning. The cases in which the question has arisen are nearly all cases in which a man, by documents insufficient to pass a legal interest, has said, " I give or grant certain property to A. B." Thus, in Morgan v. Malleson the words were, " I hereby give and make over to Dr. Morris an India bond " ; and in Richardson v. Richardson the words were, " grant, convey, and assign." In both cases the judges held that the w^ords were effectual declarations of trust. In the former case. Lord Romilly considered that the words were the same as these: "I un- dertake to hold the bond for you " ; which would undoubtedly have amounted to a declaration of trust. The true distinction appears to me to be plain, and beyond dispute ; for a man to make himself a trustee, there must be an expression of intention to become a trustee, whereas words of present gift show an intention to give over property to another, and not retain it in the donor's own hands for any purpose, fiduciary or otherwise. In Milroy v. Lord, Lord Justice Turner, after referring to the two modes of making a voluntary settlement valid and effectual, adds these words: "The cases, I think, go further, to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for SECT. VII.] COLMAN V. BARREL. 133 then every imperfect iustruruent would be made eflfectual by being con- verted into a perfect trust." It appears to me that that sentence contains the whole law on the subject. If the decisions of Lord Romilly and of Vice Chancellor Wood were right, there never could be a case where an expression of a present gift would not amount to an effectual declaration of trust, which would be carrying the doctrine on that subject too far. It appears to me that these cases of voluntary gifts should not be coafounded with another class of cases in which words of present transfer for valuable considera- tion are held to be evidence of a contract which the court will enforce. Applying that reasoning to cases of this kind, you only make the nn- perfect instrument evidence of a contract of a voluntary nature, which this court will not enforce ; so that, following out the principle even of those cases, you come to the same conclusion. I must, therefore, allow the demurrer, and, though I feel some hesita- tion, owing to the conflict of the authorities, I think the costs must follow the result.^ COLMAN V. SARREL. In Chanceky, before Lord Tiiurlow, C, November 10, 13, 16, 1789. [Reported in 1 Vesey, Jr., 50.] George Davy, 11th June, 1767, assigned by deed to trustees £1,000 three per cent bank annuities in trust for Joan Sarrel for life, in case she should survive him ; and after her death for such child or children of her, and in such projjortions, as she should api)oint; with a proviso, if she should live in any other place than that in which the grantor should reside, to be void, but not otherwise. The deed contained a covenant by liim,that, if he should survive her, he would pa3' the inter- est and dividends to such of her children, and in such proportions, as she should ai)point the principal. At tlie linu; of the deed, liis wife and her husband were living. The consideration expressed in the deed was for some satislaction for the injuries the grantee had received from the wife of the grantor. No a(ttnal tninsfer of the stock ever look place. Joan Sarrel, having survived the grantor, api)ointed by will i'GUU of this fund to one child, and £200 each to two others. Colman, as executor of the grantor, filed a bill to have the deed delivered up, as being vol- untary. The children filed a cross-bill to have the deed carried into execution by a (l(!cree ujKin the exec;utor to IransfcM" Die stock to their trustees. IJy the evidence of i)laintiir in the original bill it appeared that the witness had gone into a room, in which he found Davy, his • IJridge V. r.riflfje, 10 P.rav. 315; W.irrinor v. Rogors, L K. IG V.q. .340, per Bacon, V. C. (semble) ; rethybridge v Burrow (C. A.), 53 L. T. Rep. 5 .Accord. —Ed. / 134 COLMAN V. SAraiEL. [CUAP. I. wife, aiul Mrs. Sarrel ; that Mrs. Davy liatl hor band to her head as if she had received a blow, and eoinplained to tlie witness that lier hus- band had beaten her ; that at tlie time of tlie execution of the deed Mrs. Sarrel had threatened to kill him, had pursued him through the town with a knife, and had said she had i)urchased a shroud for him. la 1770, lie applied for a supplicavit against her, and she was bound ac- cordingly. He resisted this deed in his life, when threatened with a suit upon it. 3Ir. Mansfield and Mr. Grimioood, for the plaintiffs in the cross-bill. It is not a mere voluntary agreement, but a voluntary gift of stock, not to take place till after his death ; and therefore they are in the same situation as legatees of stock. The consequence is, that his ex- ecutors at his death became trustees under this voluntary gift for the persons to whom it is given ; as they would have been if he had given it bj' his \Yill. Then there is a covenant in the deed which creates a debt ; and the part}' comes to be paid out of the assets as for any other debt. P>ither an action of debt or covenant would lie ; but the}' come into this Court in the common way. It is not a case for making perfect a defective voluntary agreement ; but here is a deed under seal convey- ing to trustees. It is an equitable gift instead of a legal one. LoKD Chancellor. If you have it at law, there is an end ; if not, the question is, whether you can luu'e a voluntary agreement executed in equity.^ The difficulty is to show a case where any voluntary gift has been executed in equity. You are now upon a question whetlier a court of equity will set up a deed you canijot proceed upon at law.' Solicitor General and Mr. Cooke, for defendants in the cross-bill. Lord Chancellor. If you can bring an action, you may. The covenant seems to be but in aid of the form of the transfer. The only case coming near it is that in Vesey, but it is not so clear a case that a court of equity wall take it out of the hands of a jury. Where a deed is not sufficient in truth to pass the estate out of the hands of the con- veyer, but the party must come into equity, the court has never yet executed a voluntary agreement. To do so would be to make him who does not sufficiently convey, and his executors after his death, trustees for the person to whom he has so defectively conveyed ; and there is no case where a court of equity has ever done that./AVIien- ever }ou come into equity to raise an interest by way of trust, you must have a valuable, or at least a meritorious consideration. Noth- ing less will do.* *D 1 Lord Thurlow dismissed the original bill. The arguments and opinion relating thereto, as well as the discussion of the question of costs, are omitted. — Ed. 2 Equity will not decree performance of such an agreement. Tatham v. Vernon, 29 Beav. 604. — Ed. 3 The rest of the argument of the plaintiff is omitted. Villars v. Beaumont, 1 Vern. 100 ; Boughton v. Boughton, 1 Ati<. G2.'), 1 Vern. 36.5 ; Lechmcre v. Earl of Carlisle, 3 P. Wms. 222; Williamson v. Codrington, 1 Ves. 514 ; Watts v. BuUas, 1 P. Wms. 60, were cited. — Ed. * 1 Font. Treat. Eq. 41 ; Ellison v. Ellison, 6 Ves. 656. SECT. VII.] SLOANE V. CADO*AIS\ 135 The decree was, " that the original bill should be dismissed without costs ; that the cross-bill should be retained twelve months, during which time the plaintiffs in it should be at libert}- to bring an action upon giving security, to be approved b\' a master, to answer the costs of it ; on non-compliance with these terms, the bill at the end of the year to stand dismissed, with costs." The plaintiffs in the cross-bill did nothing till the 1st November, 1790, when they applied to have the time for bringing the action enlarged for six months ; which the Lord Chancellor thought reasonable, and ordered. Upon that order the}' commenced the action without giving securit}' for the costs. Upon the 11th, Mr. Mitford moved to amend the minutes of the last order by inserting the terms contained in the decree ; and the Lord Chancellor granted the motion, declaring he meant not to dis- charge the terms when he enlarged the time. SLOANE V. CADOGAN. In Chancery, before Sir William Grant, M, R., December, 1808. [Reported in Sugden, 3 Vendors and Purchasers (lOlh ed.), Appendix, 66.] i William B. Cadogan, being entitled to an equitable reversionary interest in one fourth share of a fund of £20,000, by an indenture bear- ing date the 2Gth May, 1798, assigned his interest to four trustees, upon trust, first, for himself for life ; secondly, for his wife, the plain- tiff, for life ; thirdly, after the death of the survivor, for their issue ; fourthly, in default of such issue, for such persons as he, AVilliam, should l)y deed or will appoint ; and, fifthly, in default of appoint- ment, for Earl Cadogan, the father of William. The indenture also gave to William and his wife a joint power of revoking the trusts thus created. There was no child of tlic marriage between tlie testator and his wife. Tlie testator did not, in his lifetime, in any manner execute his general power of appointment in the indenture of 2Cth May, 178.", [1798?], or his power of appointment of the said sum of £1,000, unless by his will ; nor did he, togetiier with the plaintiff, execute their joint power of revocation therein contained. The plaintiff claimed, under a jjrovision in licr luisl)and's will, to be entitled U) one fotirth i)art of tlie £20,000, and the bill was filed against the executors of the Earl of Cadogan to establish her right. The defendants, in their answer, claimed to l)e entitled to tlu; whole of the fourth share of the said William liromley Cadogan, subject to ' Klli.ton r. Kllison, V'cs. 6.'>r, (semble) ; Pulvertoft v. Pulvertoft, 18 Ve8. 89 Accord. — Ed. 136 FOllTESCUE V. BARNETT. [CHAP. L the phiiiUitT's right to the interest for her life under the indenture of 2Gth of May, 1783.' uVr. Eicliards^ Mr. Stejihen^ Mr. Boivdler, and 3fr. Sugden^ for the plaintiff. Sir Samuel Eomilhj and Mr. Raithby, for the defendants. 2[r. Richards, in reply. Master of the Rolls, having taken time to consider. Two points were made on the part of the plaintiff: 1st, that it was not necessary that the husband should execute the power; but, 2dly, if it was, that his will did amount to an execution of it.* As to the first, it Avas said that the gift to Lord Cadogan was merely voluntary, and Lord C. could not have had any assistance from this Court : that the ques- tion is the same as if the representatives were parties seeking relief, as the circumstance of his executors having the money makes no dif- ference, and I think that that circumstance is immaterial. But, as against the party himself and his representatives, a voluntary settle- ment is binding. The Court will not interfere to give perfection to the instrument, but you may constitute one a trustee for a volunteer. Here the fund was vested in trustees. Mr. W. Cadogan had an equi- table reversionary interest in that fund, and he has assigned it to cer- tain trustees ; and then the first trustees are trustees for his assigns, and they may come here, for when the trust is created no consideration is essential, and the Court will execute it, though voluntary. The bill must be dismissed as to this fund. FORTESCUE v. BARNETT. In Chancery, before Sir John Leach, M. R., January 20, 1834. [Reported in 3 Mylne ^ Keen, 36.] The defendant, John Barnett, shortly after the intermarriage of his sister, INIary Barnett, with Henry White, executed an indenture dated the 17th of December, 1813, and made between himself of the first part, the said Henry AVhite, since deceased, of the second part, Mary Wliite, the wife of Henry White, of the third part, and the plaintiff, William Fortescue, and Thomas White, deceased, of the fourth part, whereby, after reciting that the Equitable Assurance Society had, by a policy of assurance dated the 27th of September, 1811, assured to be paid to the executors, administrators, and assigns of John Barnett, after his decease, £1,000, on payment of the annual premium of £25 lis., it 1 This BTimmary of the facts is substituted for the much fuller statement in Sngflen. The arguments of counsel are also omitted. — En. 2 The Master of the Rolls held that the will did not amount to an execution of the power. So much of the case as relates to this point is omitted. — Ed. SECT. VII.] FORTESCUE V. BARNETT. 137 was witnessed that, in consideration of the marriage then lately sol- emnized between Henry White and Mary White, and for making some provision for the said Mary AVhite and laer child and children, if she, or any sucli child or chiklren, should survive John Barnett, he, the said John Barnett, assigned and transferred to AVilliam Fortescue and Thomas White the said policy of assurance, and the sum of £1,000 thereby assured, and all interest and produce to become due or pay- i able by virtue thereof, and all his right and interest therein, to hold to William P'ortescue and Thomas White, their executors, administra- tors, or assigns, upon trust, in case Mary White and all and every her child and children should happen to die in the lifetime of John Barnett, for John Barnett, his executors, administrators, and assigns, and to reassign the same to him and them accordingly ; but if Mary White, or any child or children of Mary White, should happen to outlive John Barnett, then in trust that William Fortescue and Thomas White, their executors, administrators, or assigns, should invest the said sum of £1,000, and all other money which should become due on the said policy, in the public stocks or funds, upon the trusts therein declared, for the benefit of IMary AVhite and her child or children. The deed contained a covenant on the part of John Barnett, for himself, his ex- ecutors and administrators, to pay and keep up the annual premiums payable upon the policy. This deed was delivered to Thomas AYhite, one of the trustees named therein, and remained in his possession till his death, which haijpeued in October, 1832 ; but the defendant, Barnett, retained possession of the policy of assurance. Shortly after the death of Thomas White, the deed was sent by one of his executors to William Fortescue, the surviving trustee, who. upon application at the office of the P>quitable Assurance Society, was in- formed that no notice had ever been given to the society of the assign- ment of the policy ; that in July, 1.S30, a bonus of £795, payable upon the death of John Barnett, had been declared on the policy, which bonus was surrcudercd ))y Barnett to the society in the same month of July, in consideration of the sum of £.'304 15.s. ; and that in Novem- ber, 18;52, B>arn(,'tt surrendered the policy itself to the society, in con- sideration of th(! further sum of £326 13s. 'I'he bill was originally filed by Fortescue against Barnett alone, for the purpose of compelling him to replace or give security for the value of tlie policy and bonus so surrendered, and of all bonuses which might have accrued or have been capable of being declared thereafter, if the policy had not been surrendered ; but the defendant demurred to the bill for want of parties, and, the demurrer being allowed, ISIrs. ^ AVhitc and her chililrcn were made parties by amcmliiii'nt, leave ha\iug » been given for that |)urpose. The bill prayed that the defendant, Barnett, might be decreed to pay to the plaintiff, or otherwise secure upon the trusts of the indenture of the l?tli of December, 1813, the sum ^A £1,795, being the amount of 133 FORTESCUE V. BARNETT. [CIIAP. I. the Sinn secured by the policy, together with tlie boans declared thoreou, aud such further sum as should be sudicicnt to answer all future bonuses which, according to the regulations of the Equitable Assurance Company, would have accrued due in respect of the policy if it had not beeu surrendered. The defendant, Barnett, by his answer, stated that the settlement of the policy was a mere voluntary act on his part, aud made out of his personal regard for his sister ; aud that he executed the settlement under the impression that he should have the control of the policy during his life, and power, if he thought fit, to revoke or alter the dis- position of the same. He further stated that the policy had been sur- rendered after the death of Mrs. White's husband, and with her consent, in order to save the expense of the annual premium, aud with the un- derstanding that the amount of the premium should be annually paid to Mrs. White, which had, in fact, been done. The defendant further stated that, at the time of surrendering the policy, he executed a codi- cil to his will, whereby he made a provision for Mrs. White and her children to the extent of £1,000, and that he put Mrs. White, at the same time, into possession of a freehold estate of the value of £400, of which she had ever since received the rents and profits, and that he bad devised such freehold estate to her eldest son by his will. The question in the cause was, whether the defendant was or was not lound to replace or give security for the value of the policy. M- , Bickersteth and Mr. Willcock, for the plaintiff. i J/7. Bolfe, for the widow, disclaimed any desire on her part to obtain relief in this suit, to which she was an unwilling party. The defendant had been her greatest benefactor, and she was satisfied that whatever steps he had taken in this transaction had been taken with a view to her benefit and the interests of her children. 3Ir. Pemberton and Mr. W. C. L. Keene, for the defendant, Barnett. The Master of the Rolls. In the case of a voluntary assign- ment of a bond, where the bond is not delivered, but kept in the possession of the assignor, this court would undoubtedly, in the ad- ministration of the assets of the assignor, consider the bond as a debt to the assignee. There is a plain distinction between an assignment of stock where the stock has not been transferred, and an assignment of a bond. In the former case, the material act remains to be done by the grantor, and nothing is, in fact, done which will entitle the assignee to the aid of this Court until the stock is transferred ; whereas the Court will admit the assignee of the bond as a creditor. In the present case, the gift of the policy appears to me to have been perfectly complete without delivery. Nothing remained to be done by the grantor, nor could he have done what he afterwards did to defeat his own grant if the trustees had given notice of the assignment to the assurance office. The question does not here turn upon any 1 The arguments of counsel are omitted. — Ed.« SECT. VII.] FOETESCUE V. BARNETT. 139 distiuction between a legal and an equitable title, but simply upon whether any act remained to be done by the grantor which, to assist a volunteer, this Court would not compel him to do. I am of opinion that no act remained to be done to complete the title of the trustees. The trustees ought to have given notice of the assignment ; but their omission to give notice cannot affect the cestuis que trust. The defend- ant appears to have acted in this transaction with the purest intentions, but he has rendered himself amenable to the jurisdiction of this Court, and he must give security to the amount of the value of the policy assigned by the deed of settlement. The plaintiff is entitled to costs. ^ ^ The donee of a policy of insurance acquires the legal title to the document and an irrevocable power to sue upon it in the name of the donor, but for his own benefit (or for his cestui que trust if the gift is upon trust) whenever (1) the policy is delivered to the donee : Harrison v. McCoukey, 1 Md. Ch«34 ; Critt^den v. Phoenix Co., 41 Mich. 442 ; McCord v. Isoyes, 3 Bradf. 139 ; Licey v. Licey, 7 Barr, 251, 253 (semhle) ; Bond V. Buutiug, 78 Pa. 210, 218 (semUe) ; Madeira's App., 17 W. N. C. (Fa.) 202; Malone's Est., 13 Phila. 313; or (2) the gift, as in the principal case, is by deed: Pearson v. Amicable Co., 27 Beav. 229; Sewall v. King, 14 Ch. D. 179 ; Justice v. Wynne, 12 Ir. Ch. U. 289 ; Otis v. Beckwith, 49 111. 121 ; Badgley v. Votrain, 68 111. 25, 28 (semble); Massey v. Huntington, 118 111. 80 (stmhle) ; Trougii's Est., 75 Pa. 115; Boud v. Bunt- ing, 78 Pa. 210; Scott v. Dixon, 108 Pa. 6 (semUe). But see, contra, Ward c. Audland, 8 Beav. 201. In Pearson v. Amicable Co., supra, Lord Komilly said (pp 232-234) : — " I also fully admit, that in these cases tliere is a distinction between that species of instrument wiiich, by assignment, passes the property, and that which simply operates as a declaration of trust, and I agree that this is not a declaration of trust. The ques- tion is, whether this is a complete instrument, or whether it requires the assistance of a court of ecjuity for its enforcement 1 I am of opinion that it is a complete and perfect instrument, and I will state why I think so. " If this were an assignment of the policy for value, and the purchaser had come to this Court for its assistance to render the assignment more completer-what would remain to be done ? The assignor would say, ' What can I do more than I have already done 1 If you had told me, out of court, what furtlier assurance or what further deed or a.ssigumeut to make this instrument more comjdete, I would have ex- ecuted it.' The question, whclhcr anytiiiiig remains to be done to complete the a-ssignment of a policy is exactly the same, whether it arises upon a voluntary instru- ment or upon one for valuable consideration : whether it be one or the other, tlie question must be, wliat is There that the a.'isignee can reijuire the a.ssignor to do to make the instrument more comjikte. The error in tlie argument of the defendants is this : it is a.ssumc(l that this is a suit in which an assignee has come hero to ask the aid of the Court in making this instrument more crjuijilete ; but he docs nothing of the Hort. It is said by the defendants, ' If the plaintiffs do not require tlie assistance of this Court, why do they not proceed at law ? ' but the proceeding suggested in this ca.Me would be against the executors; tliis is not a suit against the executors, it is a suit against the insurance company. Tlie insurance comjany say, ' We are jjcrfectly rea/ly to pay ; we do not contest your claim ; you want nothing to make the instrument more Cf»mplfte, and wo are roady to pay the amount, but we must not remain ojicn to two suits ; and timrefore, a.s tlie executors raise an adverse claim to the jiolicy, it is not for ns to decide whether it is a valid claim or not, and we recjuire the assistance of this Court to prevent our being doubly vexed by two suits, and to determine wliich of the two claimants is entitled to the money duo on the policy. We admit the claim respecting it, there is the money, wliich we are ready to pay into court.' "The plaintiffs say our instrument is perfect ami comjdeto, we do not a.sk for any relief against the executors, wliy should we not have the money '' Tho insurance office is right in f)aying it to us ; it is for tho executors to make out their claim. The 140 V EDWARDS V. JONES. [CHAP. L EDWARDS V. JONES. In Chancery, before Lord Cotteniiam, C, January 6, 19, 23, 1836. [Reported in 1 Mijine ^ Craig, 226] In the year 1819, Jehu Nathaniel Williams, being indebted to Mary Custauce in the sum of £300, gave her a bond for securing that sum with interest. In the year 1828 the said sum of £300 being still due, together with an arrear of interest, amounting to the sum of £123 15s., a second bond was given by J. N. Williams to Mary Custance, for securing the latter sum with interest thereon. The whole of the two sums of £300 and £123 15s. remained due upon the security of the two bonds, at the time of the death of Mary Custance. On the 25th of May, 1830, only five days before her death, Mary Custance signed the following indorsement upon the bond of 1819 : *' I, Mary Custance, of the town of Aherystwith, in the county of Car- digan, widow, do hereby assign and transfer the within bond or obliga- question is, whether the executors can make out any claim. If the assignment had been made for value, it is clear that the assignor could not have prevented the assignee from using his name in suing the insurance company, if they had resisted the demand, and this Court could not, and would not, have allowed the assignor to say his name should not be made use of. The executors can stand in no better situation than the assignor : this Court would not have prevented the assignee from making use of the name of the assignor, if the insurance company had resisted pay- ment. But here the power of attorney is voluntary ; it is irrevocable, and in the form usual in all these instruments, and this Court will not allow the grantor to con- tradict his deed. The Court will not assist a volunteer, but it does not say, on the other hand, that it will assist an assignor in defeating his voluntary deed. The argu- ment has been founded on the supposition that by this suit the trustees are asking the assistance of a court of equity ; but in truth they come here only to resist the exec- utors of the assignor, who have raised a claim which the assignor was not himself entitled to raise, and which they, standing in his shoes, arc not entitled to raise, but which nevertheless makes it impossible for the plaintiff to receive the money until the claim of the executors is disposed of." //In Rummens v. Hare, 1 Ex. Div. 169, where the donor nf a policy attempted, un- successfully, to recover it in Detinue, Lord Cairns, C, remarked : "The intestate could not have claimed to have the document returned to him, nor can his administratrix now claim it. We have nothing to say as to the money which is secured by it. This is one of those cases in which the plaintiff may not be able to recover the document, which is the evidence of the debt, while the person who holds that evidence may not be able to recover the debt itself; but with that we have nothing to do." Witt v. Amis, 1 B. & S. 109, is a similar case, except that the gift was mortis causa. See infra, p. 145, n. 1 ; p. 1.56, n. 1 ; p 162, n. 4. A gift of a policy of insurance by a husband to his wife, whether by deed or by delivery of the document, has, of course, no effect at common law ; nor does it give the wife any interest in equity ; Howes v. Prudential Co., 49 L. T. Rep. 133 ; Hayes •. Alliance Co., L. R. 8 Ir. 149 ; except in jurisdictions where, as in this country, such a transaction is treated not as a gift, but as an agreement founded upon a meritorious^ and therefore valid consideration. See infra, p. 175, note. — Eu. SECT. VII.] EDWAEDS V. JONES. 141 tion, and all my right, title, and interest thereto, unto and to the use of my niece, Esther Edwards, of Llanilar, in the said county of Cardigan, widow, with full power and authority for the said Esther Edwards to sue for and recover the amount thereof, and all interest now due or hereafter to become due thereon : as witness my hand, this 25th of May, 1830." The bond of 1828 was usually kept with the bond of 1819. At the time at which the indorsement was signed, the two bonds were fastened together by a pin. Immediately after the indorsement had been signed, Mary Custaucc delivered or caused to be delivered both the bonds to Esther Edwards, the plaintiff in this suit. The bonds remained in the hands of the plaintiff until the filing of the bill. IVfliry Custauce died on the 30th of May, 1830, having in the year 1829 made her will, in which she did not mention the bonds, or dispose of the residue of her property, but by which she appointed the defendant. Rice Jones, her executor, who duly proved the will. After Mary Custance's death, the defendant, who had been aware in her lifetime of the existence of the bonds, supposing that they had been lost, prevailed upon J. N. Williams, the obligor, to execute a new bond for the amount due upon the two old bonds, and at the same time gave to the obligor a bond of indemnity against any claim which might be made under the old bonds. In the month of Januarj^ 1832, J. N. Williams, the obligor, died, and afterwards his widow and executrix paid to the defendant the amount for which the new bond had been given. The bill stated that the plaintiff was a niece of Mary Custance, and that INIary Custance had a great aff'ection for the plaintiff, and enter- tained, and at different times expressed, an intention to give or leave to the i)laintiff the bonds, and the money due upon them. It alleged that !Mary Custance delivered, or caused to be delivered, to the plaintiff both tiie bonds, intending that the plaintiff should be entitled thereto, and to the moneys respectively secured thereby, in case of and after the decease of her the said IMary Custance, and expressing herself to that or the like effect; and the bill also alleged that the bonds, and the money due upon the same, were well given to the plaintiff", b}' Mary Custance, as a gift, or as a (lo)ialio laoiiis causa, and that the plaintiff became entitled thereto. The bill tlu'u went on to allege that, under the circumstances, the plaintiff was entitled to the sum due ou the bonds, and that the deff!n Jones) is still law. See Patterson v. Williams, LI. & G. t. PI. 95. — Ed. 1 See supra, p. 70, n. 1 — Ed. ^ I DeG., M. & G. 176. SECT. YII.] DONALDSON V. DONALDSON. 1-17 cases, the principle which I gather from them is the same as that on which the Lords Justices seem to have proceeded in Kekewich v. Man- ning.' and though that case does not go so far as the present, I still think that this is concluded b}' it. In all the cases, except Beatson v. Beatson^ and particularly in £Jx parte Pye, it is laid down that, when there is a complete declaration of trust by a party concerning stock or choses in action vested in himself, this Court will enforce it. On the other hand, where there is a contract only, or an imperfect gift, which requires some other act to complete it on the part of the as- signor or donor, the Court will not interfere to require anything else to be done by him. The intermediate cases alone are difficult of solution. The question is, in every case, has there been a declaration of trust, or has the assignor performed such acts that the donee can take advan- tage of them without requiring any further act to be done b}- the as- signor ; and, if the title is so far complete that this Court is not called upon to act against the assignor, it will assist the, donee in obtaining the property from any person who would be treated as a truslee for him. In Beatson v. Beatson ^ alone there was an assignment of an equitable mterest in stock, which was vested not in the donor but in a third party, and it w^as held that the Court would not assist the volun- teer. In Dillon v. Coppin ^ stock standing in the donor's own name was assigned, and there this distinction was taken, which was some- what nice, but still consistent witli P^llison v. Ellison^ and the other cases ; namely, that, the stock being in the name of the donor himself, and there being no declaration of trust but a mere assignment, which would not pass the stock at all, and the deed showing an evident inten- tion on the part of the assignor to do some further act, and containing a covenant to perfect the gift, the Court said, we cannot call upon the donor to transfer the stock or complete the gift. But in the case of an assignment of the equitable interest in stock standing in the names of trustees, the deed of assignment passes the whole equitable interest of tlie donor, and the donee may go with that deed to the trustees, and say, transfer to me the interest in this sum of stock ; and I think that in such a case it would not even be necessary to make the donor a party to a suit to enforce the gift. Then the question is, whether, notice not having been given to the trustees, the gift could be enforced. As to thnt, it has been said in some cases, that the gift is complete when no further act is required to bo done by the donor or the donee ; and tiiat seems to imply a doubt whether, if tiierc were any act to be done l)y the donee, the gift could ])e treated as complete. But the assignment lias completely passed the interest of the donor. It is true, that, if no iK)tice of it were given to the trustees, they would be justified in transferring the stock to the original cestui que trust for whom they held it; and, if they did so, there would ])e no remedy against them ; and it is possible that the » I Df'G., M. & G. 176. 2 12 Sim. 291. » i My. & Cr. 647. * 6 Ves. 656. 1^8 DONALDSON V. DONALDSON. [CHAP. L ilonce might not be able to recover the stock ; but all that the donee has to do is, at any time he thinks fit, to give notice to the trustees before the stock is transferred ; and when he has given such notice, his title is complete : and, unless the donor or his executors actually obtain possession of the fund, the donee does not require the aid of this Court against them. The fact that the trustees are themselves the executors of the donor in this case, 1 think, does not make any dilference. As the donor has not obtained possession of the fund, the donees have a right to go to the trustees and require them to transfer the stock, or come to the Court to have that done. The donees require no assist- ance from the Court against the original assignor, and therefore the assignment is such as the Court will support. That is the principle upon which cases like Sloane v. Cadogan proceed, and which Lord Cottenham seems to recognize in Edwards v. Jones, where he sa3-s, " In Sloane v. Cadogan the claim was not against the donor or his rep- resentatives for the purpose of making that complete which had been left imperfect, but against the persons who had the legal custody of the fund ; and the question was, whether the transaction constituted them trustees for the fund for the cestui que trusts" Sir W. Grant came to the conclusion that it did ; and the consequence was, that they were bound to account. That case has been considered by Sir Edward Sug- den as going a great way ; but, upon the principle stated by Sir W. Grant, it is free from all possible question, for there was no attempt in that case to call in aid the jurisdiction of the Court." In this case, there is no need whatever for the donees to call in aid the jurisdiction of this Court against the original assignor or his representatives. All that they have to do is, to require the trustees who hold the fund to transfer it to them. This decision goes somewhat beyond all the authorities except Cado- gan V. Sloane ; but I cannot hold that the owner of an equitable inter- est in a chose in action is not entitled to assign it ; and I think that, upon the principle recognized in Ellison v. Ellison,^ and like cases, I must decide that the equitable interest in this stock was effectually assigned by this deed.^ 1 6 Ves. 656. 2 Villera v. Beaumont, 1 Vern. 100; Ellison v. Ellison, 6 Ves. 656; Bentiey v. Mackay, 15 Beav. 12; Voyle v. Hughes, 2 Sni. & G. 18; Lambe v. Orton, 1 Dr. & Sm. 125 ; Gilbert v. Overton, 2 Hem. & M. 110; Re Way's Trusts, 2 D. J. & S. 365 ; Nanney v. Morgan, 37 Ch. Div. 346 ; Re Lucan, 45 Ch. D. 470 (semble) ; Gannon v. White, 2 Ir. Eq. 207; Ensign v. Kellogg, 4 Pick. 1 ; Stone v. Haokett, 12 Gray, 227; Henderson v. Sherman, 47 Mich. 267 ; Johnson v. Williams, 63 How. Pr. 233 ; Ham I.-. Van OrJen, 84 N. Y. 257 ; Patton v. Clendennin, 3 Murph. (N. Ca.) 68 {semble); Chasteen v. Martin, 84 X. Ca 391 Accord. Bridge v. Bridge, 16 Beav. 315 (said in Re King, 14 Ch. D. 184, to have been de- cided on a wrong ground) ; Meek v. Kettlewell, 1 Hare, 464 (said in Penfold v. Mould, 4 Eq. 562, and Sullivan ti. Sullivan, Brunner, 645, to be in effect overruled) Contra. Although, as the principal case shows, a cestui que trust may make a valid gra- tuitous assignment of his tru.st, he cannot without consideration create a valid equitable charge upon his interest. Re Lucan, 45 Ch. I). 470. On the same principle, a so called partial assignment of a chose in action, being in effect an equitable charge, is inoperative, if not supported by a consideration. Alger v. Scott, 54 N. Y. 14. — Ed, SECT. VII.] MILEOY V. LORD. 149 MILROY V. LORD. In Chancery, before Sir J. L. Knight Bruce and Sir G. J. Turner, L.JJ., June 2, 3, 4, July 26, 1862. [Reported in 4 Be Gex, Fisher, ^ Jones, 264.] This was an appeal by the defendant Otto, the personal representa- tive of Medley, from a decree of Vice Chancellor Stuart. The bill was filed by Andrew Row M'Taggart Milroj' and Eleanor Rainey, his wife, formerly E. R. Dudgeon, for the purpose of having new trustees appointed of a voluntary settlement made by the late Thomas Medley, and for recovering fifty shares of the Bank of Louisiana, whicli formed the subject of the settlement, and thirteen jSTorth American fire insurance shares, which were purcliased with the income of the bank shares, together with the dividends upon all the above mentioned shares, so far as they had not been paid over to the plaintiffs or one of them ; and the bill also prayed that the defend- ant Samuel Lord, the trustee named in the settlement, might be de- creed to make compensation to the plaintiffs and other the parties entitled under the settlement in respect of his having given np the certificates for the shares to the defendant Otto, the executor of Thomas Medley. The settlement in question was made by a deed poll, dated the 2d April, 18.i»2, which was as follows : — "Know all men by these presents, that I, Thomas Medley, of the city of New Orleans, on account of the love and affection I have for my niece, Eleanor Rainey Dudgeon, daughter of Daniel Dudgeon, of England, and in consideration of one dollar to me in hand paid, have conveyed, transferred, set over, and delivered, and b}' these presents do convey, transfer, set over, and deliver, unto Samuel Lord, of the city and county of New York, fifty shares of the capital stock of the Bank of Louisiana, now standing in my name in the books of the said bank, together with the certificate or scrip thereof, numbered 3,457, and dated the fith ALirch, 18.j2, under the corporate seal of the said bank, signed by \V. W. I\Iontgoniery, i)resident, and attested by R. i\L Davis, cashier, and the dividends and profits thereof, to have and to hold to the said Samuel Lord and his legal representatives upon the trusts and conditions following, to wit, in trust to collect and receive the dividends and |>ronts of tlje said stock, and apply them to the use and benefit of the said Eleanor Rainey Dudgeon, if I ])e living until the time of the marriage of the said Eleanor, and upon the further trust, in case I die before the marriage of the said Eleanor, leaving her surviving me, then to transfer the said shares of stock, or 'the pro- ceeds thereof, to the said Eleanor, for her own use and benefit ; and 130 MILllOY V. LOUD. [chap. I. upon the further trust, iu case the said Kleanor shouUl during my life- lune marry, with my i)revious consent and approbation, then to ai)i)ly the said divickMuls and profits to the use of the said Eleanor for life, and after her ileath to convey and transfer the said stocks or the proceeds thereof to her issue, if she leave any her surviving, and in default of such issue to convey and transfer the said stock or its proceeds to my next of kin ; and upon the further trust, if the said Eleanor shall have died before me without having married, or shall during my lifetime marry without my consent, then to reconvey and retransfer the said stock or its proceeds to me ; and upon the further trust, on my direction at any time during my lifetime, or in his dis- cretion after my death, to convert the said stock into money by sale thereof, and after such conversion to invest the proceeds thereof in his discretion in other stocks or upon a bond or mortgage at interest, to be held on the like trusts and subject to the like powders of con- version as the stock hereby transferred, and the dividends and profits thereof ; reserving to myself the power at any time in writing, by will or otherwise, to direct and compel the said Samuel Lord to transfer the said stock or the proceeds thereof to the said Eleanor, for her own use and benefit absolutely, and also reserving to myself the power, in case of the death of the said Samuel Lord before me, of appointing another or other trustee or trustees in his place and stead. And I, the said Samuel Lord, do consent and agree to accept this transfer ; and I hereby covenant and agree to and with the said Thomas Medley and the said Eleanor Rainey Dudgeon, severally and respectively, and their several and respective legal representatives, that I will observe, per- form, fulfil, and keep the trusts and conditions hereinbefore declared." This deed poll was under the hand and seal both of Thomas Med- ley and of the defendant Samuel Lord. At the time of the execu- tion of the deed poll, Samuel Lord held a power of attorney from Thomas Medley, whereby Medley empowered him " to take possession, charge, and control of all his goods, chattels, books of account, evi- dences of debt, choses in action, and claims of every kind, to buy and to sell and to transfer the stock of any incorporated company now belonging to him, or wdiich might thereafter belong to him, and to collect and receive the dividends," and gave him general authority to act on his behalf. Soon after the execution of the deed poll, Thomas Medley delivered to the defendant Lord the scrip for one hundred and sixty-two shares which he then held in the Bank of Louisiana, in- cluding the scrip for the fifty shares comprised in the deed of settle- ment. About the same time, jNIedley gave to the defendant I>ord a further power of attorney, authorizing him to receive the dividends then due and payable, and which might thereafter become due and payable, on all or any shares of the capital stock of the Bank of Louis- iana then standing, or which might thereafter be placed in his name in the books of the said Bank of Louisiana, and to give receipts, dis- charges, and acquittances for the same, with power to the said attor- SECT. VII.] MILROY V. LORD. 151 ney to substitute an attorney or attorneys under him for all or any of the purposes aforesaid, and to do all lawful acts requisite for affecting the premises. Accordmg to the constitution of the Bank of Louisiana, the shares in the bank were transferable in the books of the company, and all . transfers were to be made by the proprietor or his lawful attorne}', the certificates of stock being surrendered at the time the transfer was made ; but it was to be collected from the evidence in the cause, that, where a transfer was made by power of attorney, the power of attorney had to be left with the bank. No transfer was ever made into the name of the defendant Lord of the fifty shares comprised in the settlement ; but the dividends upon the shares appeared to have been received by Lord, and remitted by him to the plaintiff Mrs. Mil- roy, then Eleanor Raiuey Dudgeon, sometimes directl}' and some- times through the medium of tlie settlor, by whom the}' were paid over to her, except as to one dividend, which appeared not to have been so paid over. The thirteen North American fire insurance shares were purchased, as it appeared, paid to Mrs. Milroy, then Eleanor Kainey Dudgeon, along with the dividends upon the bank shares ; but these insurance shares were purchased in the name of Thomas Medley. In the year I800, the plaintiffs intermarried, with the consent and approbation of Thomas Medley. In the month of November in that year Thomas Medley died, having by his will bequeathed to the j)4aintiff E. R. Milroy a legacy of £4,000, and appointed the defend- ant J. A. Otto to be his executor, who duly proved his will. After his death, the defendant Lord delivered to Otto the certificates both for the fifty Louisiana bank shares and for the thirteen Nortli Ameri- can fire insurance shares. The plaintiff E. R. Milroy was the niece of Thomas Medley. She was educated at his expense, and lived witii him after she was grown up until the summer of the year 1.SJ2, in the spring of winch year he married the daughter of the defendant iSamuel Lord. The settlement whicii llu; bill souglit to cnforct was made in consequence of that marriage, and of the [)laintiff E. R. IMilroy then ceasing to live with Iho settlor, and as a provision for her; and she was told by Thomas Medley that he had made the settlement on tliat account and for that |)urpose. The Vice Chancellor Stuart, at the hearing of tlie cause, and of a petition presented in it and under (he trustee act, made a decree declaring that tiie fifty siiares in tii(> r.nnk of Loiusiana were bound ])y tlic trusts declared by tlic deed \n)\\ of tlie "id April, l.S,'>2, and that the thirteen siiarcs in the North American Fire Insurance Com- pany, in th(! bill mentioned, belonged to the plaintiffs in right of the plaintiff Eleanor Rainey Milroy, tlie same having been purchased before her marriage with moneys belonging to her. The decree pro- ceeded U) appoint a new trustee, and to order the defendant Otto, an executor of the will of the settlor, to transfer the fifty shares in the Bank of Louisiana into the joint names of Lord and the new trustije. lo'2 iMlLROY V. LOKD. [CIIAP. L to be held by them upon the ti'usts of the said deed poll, and also to transfer the thirteen sliares in the North American Fire Insurivnco Company into the name of the plaintiff Andrew Row INI'Taggart Mil- roy, for his own use. It was further ordered that the amount of the dividends accrued since the decease of Medley upon the lifty shares in the Bank of Louisiana, up to the time of the transfer, should be paid by Otto to Lord and the new trustee, to be also held by them upon the trusts of the deed poll ; and that the amount of the dividends accrued since the decease of Medley upon the thirteen shares sliould be paid to the plaintiff Andrew Row M'Taggart Milroy, for his own use. The costs of the suit were ordered out of Medley's estate. The defendant Otto appealed from this decree. 3lr. Cvauj and Mr. Charles Hall, for the plaintiffs, in support of this decree. Mr. Cotton, {Mr. Bacon with him,) for the appellant. Mr. Malins and Mr. Kekewich, for Lord. Judgment reserved. Jul}- 2G. The Lord Justice Tukner,' after stating the facts of the case nearly in the same terras as above, proceeded as follows : — Under the circumstances of this case, it would be diflicult not to feel a strong disposition to give effect to this settlement to the fullest ex- tent, and certainly I have spared no pains' to find the means of doing so, consistently with what I appreliend to be the law of the court ; but, after full and anxious consideration, I find myself unable to do so. 1 take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done ev- erything which, according to the nature of the property com[)rised in the settlement, was necessary to be done in order to transfer the prop- ert}-, and render the settlement binding upon him. He may, of course, do this by actuall}- transferring the property to the persons for whom he intends to provide, and the provision will then be effectual ; and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself liolds in trust for tliose purposes ; and, if the propert}' be personal, the trust ma_y, as I apprehend, be declared either in writing or b\' parol ; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to perfect an imperfect gift. The cases, I think, go furtlier to this extent, that, if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold tlie intended transfer to operate as a declaration of trust ; for then every imperfect instrument w^ould be made effectual b}- being converted into a perfect trust. These are the principles b}' which, as I conceive, this case must be tried. ^ The concurring opinion of Lord Justice ICnight Bruce is omitted, as well as the arguments of counsel. — Ed. SECT. Vn.] ♦ MILROY V. LORD. 153 Applying, then, these principles to the ease, there is not here any transfer either of the one class of shares or of the other to the objects of the settlement ; and the question, therefore, must be, whether a valid and effectual trust in favor of those objects was created in the defend- ant Samuel Lord, or the settlor himself, as to all or any of these shares. ;Now, it is plain that it was not the purpose of this settlement, or the intention of the settlor, to constitute himself a trustee of the bank shares. The mtentiou was that the trust should be vested in the de- fendant Samuel Lord ; and I think, therefore, that we should not be justified in holding 'that, by the settlement or by any parol declaration made by the settlor, he himself became a trustee of these shares for the purposes of the settlement. By doing so, we should be converting the settlement or the parol declaration to a purpose wholly different from that which was intended to be effected b}- it, and, as 1 have said, creating a perfect trust out of an imperfect transaction. His Honor the Vice Chancellor seems to have considered that the case JSlc parte Pye warranted the conclusion that the settlor himself became a trustee b}' virtue of the power of attorney which he had given to the defendant Samuel Lord ; but in £/x j^ci^'te Pye the power of at- torney was given b}- the settlor for the express purpose of enabling the annuity to be transferred to the object of the settlor's bounty. The settlor had, it appears, already directed the annuity to be purchased for the benefit of that object, and had even paid over the money for the purpose of its being applied to the purchase of the annuity ; and then, when the annuity was, from the necessity of the case, purchased in the settlor's name, all that possibly could be wanted was to show that the original purpose was not changed, and tliat the annuity, though pur- chased in the settlor's name, was still intended for the benefit of the same object of the settlor's bounty ; and the power of attorney proved, beyond all doubt, tliat this was the case. These facts appear to me wholly to distinguish this case from the case of Ex'iKirte Pye. Li my opinion, therefore, this decree cannot be supported upon the authority of Ex parte Pye ; and there does not appear to me to be any sufficient around to warrant us in holding tiiat the settlor himself became a trustee of these bank shares for tlie purposes of this settlement. The more dilficult question is, wliethor the defendant Samuel Lord did not become a trustee of these shares. Upon this question I have felt considerable doubt ; but, in the result, I have come to the conclu- sion that no perfect trust was over created in him. The shares, it is clear, were n(!ver legally vested in him ; and the (jnly ground on \\hich he can be held to have become a trustee of them is, that lie licld a power of attorney under whicli he migiit have transferred them into his own name ; but he held that power of attorney as the agent of tiie settlor; and if he had bcon sued by tlie plaintiffs as trustee of the set- tlement for an account under the trust, and to compel him to transfer the shares into his own name as trustee, I think he might well have said : These shares are not vested in me ; I have no power over them, 154 MILROY V. LORD. * [CIIAP. L except as the agent of the settlor ; and without his express directions, I cannot be jiistitied in making the proposed transfer, in converting an intended into an actual settlement. A court of equity could not, I think, decree the agent of the settlor to make the transfer, unless it could decree the settlor himself to do so ; and it is plain that no such decree could have been made against the settlor. In nn- opinion, therefore, this decree cannot be maintained as to the lifty Louisiana Bank shares. As to the thirteen North American fire insurance shares, the case seems to me to stand upon a different footing. Although the plaintitts' case fails as to the capital of the bank shares, there can, I think, be no doubt that the settlor made a perfect gift to Mrs. Milroy, then Miss Dudgeon, of the dividends upon these shares, so far as they were handed over or treated by him as belonging to her ; and these insur- ance shares were purchased with dividends which were so handed over or treated. It seems to me, upon the evidence, that these shares were purchased with the money of Mrs. Milroy, then Miss Dudgeon, and that the purchase having been made in Thomas Medley's name, there would be a resulting trust for Miss Dudgeon. I think, therefore, that as to these shares the decree is right, — the value of the shares being, as I presume, under £200, so that the case does not fall within the ordinary rule of the court as to the wife's equity for a settlement. The case being thus disposed of as to the title to the shares, I see no ground for the claim to compensation raised by this bill. The certifi- cates for the shares would follow the legal title, and as to the fifty bank shares would therefore belong to the defendant J. A. Otto, and as to the thirteen insurance shares the plaintiflTs recovering those shares must recover the certificates also ; but this not being provided for by the de- cree, a direction for the deliver}' of these certificates should, I think, be added. Upon the hearing of this appeal, it was contended for the plaintiflTs that, so far as they might fail in recovering any of the shares in ques- tion, they were entitled to I'ecover the value of them against the estate of Thomas Medle}'. I am not sure that this point can properly be con- sidered to be open upon these pleadings ; but, whether it be so or not, I agree with my learned brother that the plaintiffs' claim in this respect cannot be maintained. There is no express covenant in the settlement ; and whatever might be done as to implying a covenant to do no act in derogation of the settlement, it would, I think, be going too far to im- ply a covenant to perfect it. If there be a breach of any implied cove- nant by the delivery of the certificates to the defendant J. A. Otto, the plaintiffs' remedy sounds in damages, and they may pursue that remedy at law ; for which purpose, if the plaintiffs desire it, there may be in- serted in the decree a direction that they be at liberty to use the name of the defendant Lord, — of course upon the usual terms of indemnif^y- ing him. I have not adverted to the point which was raised as to this case being governed by the Spanish law ; for I think that, if that law SECT. VII.] MILROY V. LORD. 155 was more favorable to the plaintiffs, the onus was upon them X > allege and prove it. As to the costs of the suit, m^' learned brother being of opinion that the}- ought to be paid out of the settlor's estate, I do not dissent. Tlie decree must be altered accordingly, as to the several points to which I have referred.^ ^ The doctriue of the principal case, that an intended gift of shares cannot be con- I verted into an unintended trust, has been repeatedly affirmed. Antrobus v. Smith, 12 Ves. 39; Searle v. Law, 15 Sim. 95; Dillon i: Coppin, 4 My. & Cr. G47; Weale v. Ollive, 17 Beav. 252; Beech v. Keep, 18 Beav. 285; Lambert V.Overton, II L. T. Kep. 503 ; 11 W. K. 217 s. c. ; Moore v. Moore, 18 Eq. 474 ; Heartley v. Nicholson, 19 Eq. 233 ; £x parte Todd, 19 Q. B. Div. 186 ; West v. West, L. R. 9 Ir. 121 ; I'ennington v. Gitting, 2 Gill & J 208; Baltimore Co. v. Mali, 65 Md. 93. But, on the other hand, a registration of the transfer on the books of the company is not essential to the validity of a gift of shares. A delivery of the certificates, coupled with the execution of an e.xpress power of attorney to the donee to transfer the shares on tlie company's books, makes him substantially dowinus of the shares, since he needs no further assistance from the donur, and can compel registration by the company. Milroy v. Lord, supra, 153, 154 {semble) , Kiddill v. Farrell, 3 Sm. & G. 428 , West V West, L. R. 9 Ir. 121, 126 ; Stone v. Hackett, 12 Gray, 227 ; Walker v. Dixon Co., 47 N. J. Eq. 342 ; Matthews v. Hoagland (N. J Eq, 1891), 21 Atl. R. 1054 ; Cushman v. Thayer Co., 76 N. Y 365. The case of Weale v. Ollive, 17 Beav. 252, is contra, but the authority of Lord Roinilly's decision in tiiis case seems to have been unconsciously discarded by himself in Pearson v. Amicable Co., 27 Beav. 229, supra, p. 139, n. 1. See also AVood ford v Charnley, 28 Beav. 96, 101. In Pennington i;. Git- tings, 2 Gill & J. 208, a bill by tiie donee against. the executor of the donor to compel a transfer on the books of the company was rightly dismissed. But the case has been treated, in Maryland, as deciding that there cannot be a valid gift of sliares unless tlie transfer is made on the books of the company, and that the donee cannot* compel regis- tration by a proceeding against the company. Baltimore Co. c. Mali, 65 Md. 93 ' A deed of transfer, with an express power of attorney, should be as effectual as a delivery of the certificates. It was so decided in Grymes c Hone, 49 N. Y. 17 (a domitio mortis causa). Bizzey v. Flight (a gift inter vivos) is contra ; but this case can hardly ■tand with Re Patrick, '91, 1 Ch. 82. Nor is an express power of attorney indispensable. A delivery of the certificates as a gift carries by necessary implication a power to transfer the shares on the com- pany's books, and this ini|)lif'd power is as effectual as an exjiross power to give the donee dominion over the shares, whether the transaction be a gift inter vivos: Allertou V. Lang, 10 Bosw. 362 ; Ridden v. Thrall, 125 N. Y. 572, 577 (semhie) ; Commonwealth t;. Crompton, 137 Pa. 138 (but see, contra, Mattliows v. Hoagland [N. J. Eq., 1891], 21 Atl. J{. 1054) , or a donutio mortis causa: Walsh v. Sexton, 55 Barb. 251. A deed of transfer should have the same effect as a delivery. But no authorities have been found on this point. See sujira, p. 139, n. 1 ; p. 145, n. 1 ; in/ra, p. 163, n. 4. An attempted gift of certificates of stock by a husband to his wife, wliether by deed or delivery, is of course inoperative at common law, ami should be equally .so iu <;(|uity. Such is the law iu England. Moore v. Mootc, 18 E(j 474. But in tins country, such a transaction not being regarded .as a gift, but as a contract founded upon a mf-rit,ori«)Us consideration, the wife woii];. Robertson, 18 U. C. C P. 470 (semble). In Scotland, a written assignment is essential even in the case of donatio mortis causa. M'Nicol v. M'Dougall, 17 Ct. of Sess. (18901, 25 Even in jurisdictions where the gift is ineffectual unless the shares, or deposit, are transferred on the books of the company or savings bank, the donor would not be allowed to recover the certificate or bank-book after he had once delivered them with e intention of vesting them in the donee. See supra, p. 140, n. 1 ; p. 145, n. 1; iiifra, p. 162, n. 4; and also Walsh v. Saxton, 55 Barb. 251. We should have, then, this extraordinary condition of things : the donee unable to transfer the shares or col- lect the deposit, because the gift is not deemed complete ; the donor equally helpless, because he cannot produce the certificate or bank-book; the company or hank, on the other hand, in a position capriciously to recognize either the donor or the donee as dominus of the claim, or, indeed, unless they come to some compromise, to refuse with safety to recognize either. — Ed. ^ See supra, p. 70, n 1 — Ed. SECT. VII.] EICHARDSOX V. RICHARDSON. 157 ment of them, yet, as is conceded, the Statute of Limitations cannot be set up ; and the plaintiff must be considered as having received, on account of his legacy, so much of the assets of the testator as his debt amounted to. "Whether or not the notes were the property of the testator depends upon a certain voluntary assignment,^ whereby the sister, shortly before her death, assigned the whole of her personal estate to her brother, the testator ; and in the same instrument she gave him a power of attorney to ask, sue for, and recover the thereby assigned moneys and premises, and to do and execute such further acts and deeds 9.S should be deemed necessary for deriving the full benefit of the assignment. i^ow, there is no specific description in the deed of the promissory notes ; and, if they passed at all, they passed under the description of '' all other the personal estate and effects, whatsoever and whereso- ever," of Elizabeth Richardson. She did not indorse the notes ; and the defendants, the executors, by their answer, say they believe that, if she had not died so soon, the testator would have applied to her to indorse the notes, but she did not do so. The questions are : first, whether they passed by the deed at all ; and, secondly, if they passed, whether they passed to the testator as trustee; or in his own right. After the decision in Kekewich v. Manning, ^ I think it is impossible to contend that these notes did not pass by this instrument, because the rule laid down in that case, the decision in which was supported by reference to Ex parte Pye, was not confined merely to this, that a per- son who, being entitled to a reversionary interest, or to stock standing in another's name, assigns it by a voluntary deed, thereby passes it, notwithstanding that he does not in formal terms declare himself to be trustee of the property ; but it amounts to this, that an instrument exe- cuted as a present and complete assignment (not being a mere covenant to assign on a future day) is equivalent to a declaration of trust. It is impossible to read the argument in that case, and the judgment of Lord Justice Kniglit I'ruce, without seeing that his mind was di- rected to Meek v. Kettlcwell,^ and that class of cases, where it had been held (such was the nicety upon which the decisions turned) that an actual assignment is nothing more than an agreement to assign iu equity, because it merely passes such equitable interest as tlic assignor may have ; and some further stop must be taken l)y the assignee to ac- quire the legal interest. That furtiier step being necessary, the assign- ment was held to be in truth nothing l«it an agreement to assign, and, being so, was not enforceable in tliis Court, — the Court having often decided tliat it will not enforce a mere voluntary agreement. The distinction, undon])tedly, was very fine between that and a dec- laration of trust ; and the good sense of the decision in Kekewich v. I This asHignmcnt wom under seal, and the notes wore delivered to the testator -En. a 1 D M. &G. 170. » I Hare, 464. loS RICHARDSON V. RICHARDSON. [ciIAr. L Manning, I think, lies in this, that the real distinction should be made between an agreement to do something wlien called upon, something distinctly expressed to be future in the instnnnent, and an instrument which affects to pass everything, independently of the legal estate. It was held iu Kekewich v. Manning tliat such an instrument operates as an out-and-out assignment, disposing of the whole of the assignor's equitable interest, and that such a declaration of trust is as good a form as any that can be devised. The expression used by the Lords Justices is this: "A declaration of trust is not confined to any ex- press form of words, but may be indicated by the character of the instrument." In that case, reference was made in the argument principally to the case of Ex parte Pye, which was a decision of Lord Eldon to the same effect. Reliance is often placed on the circumstance that the assignor has done all he can, — that there is nothing remaining for him to do ; and it is contended that he must, in that case only, be taken to have made a complete and effectual assignment. But that is not the sound doctrine on which the case rests ; for, if there be an actual declaration of trust, although the assignor has not done all that he could do, — for example, although he has not given notice to the assignee, — yet the interest is held to have effectually passed as between the donor and donee. The difference must be rested simply on this : aye or no, has he constituted himself a trustee ? In Ex parte Pye, the testator had written to one Dubost, authorizing hira to purchase in France an annuity for the benefit of a lady named Garos, for her life, with power to draw on him for £1,500 for such pur- chase. The agent, finding the lady was a married woman, exercised his owm discretion, and bought the annuity in the name of the testator. Then, shortly before his death, the testator sent to Dubost, by his de- sire, a power of attorney authorizing him to transfer the annuity to the lady. The testator died before anything more was done ; and, after his death, the annuity was transferred. There was a question whether, by the law of France, the exercise of a power of attorney by the person to whom it is given, without knowledge of the death of his principal, is good. I think the Master found that it was so ; but Lord Eldon ex- pressly declined to reply upon that, as he says in his judgment : " These petitions" (the question came on upon petition) " call for the decision of points of more importance and difficulty than I should wish to decide in this way, if the case was not pressed upon the Court. With regaid to the French annuity, the Master has stated his opinion as to the French law, — perhaps without sufficient authority, or sufficient inquiry into the effect of it, — as applicable to the precise dlrcumstances of this case ; but it is not necessary to pursue that, as upon the docu- ments before me it does appear that, though in one sense this may be represented as the testator's personal estate, yet he has committed to writing what seems to me a sufficient declaration that he held this part of the estate in trust for the annuitant." SECT. VII.] GEOVER V. GROVER. 159 Now, the testator had done nothing more than execute the power of attorney. It is true, he had written a letter directing the stock to be purchased in the lady's name ; but that was not done ; it was purchased in his name. The decision, therefore, could only be rested upon this, that this was not an agreement to assign, not an agreement to become a trustee at some future period, but an actual constitution by the testa- tor of himself as trustee. Following, therefore, Kekewich v. Manning, I must regard this instru- ment as having effectually assigned the promissory notes, although they were not indorsed. The instrument is an actual assignment, with a power immediately vested in the assignee to make himself master of the property ; and 1 do not know in what way the assignor could have more effectually declared that she was a trustee of that property for Kichard Richardson. BENJAMIN GROVER, Administrator, v. CHARLES W. GROVER. In the Supreme Judicial Court, Massachusetts, October 17, 1835, March 20, 1837. [Reported in 24 Pickering, 261.] Assumpsit upon a promissory note made by the defendant, and payable to the order of Hiram S. G rover, the plaintiff's intestate. At the trial, before Putnam, J., it appeared that in March, 1832, Grover V. Blanchard called to see the iutestate. Upon an inquiry being made, whether the intestate had put on record a deed of mort- gage given to secure the payment of the note in question, tlie intestate produced the deed, which had not then been recorded, and the note, and said to Blanchard, " I will make a present of these to you, if you will accept them." Blanchard then took them and put them in his pocket, saying that he would accept them as a token of love, or affec- tion, or rcHi)ect. Before th(;y jtarted, Blanchard handed them back to the intestate, saying to him, ••' You may keep the papers until I call for them, or collect them for me." No assignment was made on the note or mortgage. Afterwards the intestate put the mortgage deed on record. The plaintiff, after the death of the intestate, in October, 1832, took the deed from the register's odlce, and, having received of the defendant payment of the amount secured thereby, discharged the mortgage. Upon the death of the intestate, the note was found in his chest, with his papers; nnd Blnnchnid took it, refused to deliver it to the plaintiff, and caused this action to be brought. The defendant contended : 1 . That no valid gift of a chose in action could be made inter vivos without writing ; 2. That the name of the donor, or of the administrator or executor of the donor, could not be used without his consent, in an action brcight for the use of the donee ; IGO GllOVER V. GKOVER. fciIAP. I. and, 3. That tho donor could not, by law, act as the agent of the donee to keep tho ii:ipors or collect the money. The jury found tiuit the intestate did intend to give the property contained in the note and mortgage, absolutely, to Blanchard. The whole court were to determine, upon these facts, whether or not the property passed and vested in Blanchard, and whether or not he might maintain this action without the consent of the nominal plaintiff, for his own use, under the facts and circumstances above stated. Keyes and Farley^ for the defendant.^ Hoar, for the plaintiff. Wilde, J., delivered the opinion of the Court. The jury have found that the deceased intended to give the property in the note, and in the mortgage made to secure it, absolutely, to Blanchard ; and the question is, whether by the rules of law this intention can be carried into effect. It is objected that no valid gift of a chose in action can be made inter vivos, without writing, and this objection would be well main- tained, if a legal transfer of a chose in action were essential to give effect to a gift. But as a good and effectual equitable assignment of a chose in action may be made by jjarol, and as courts of law take notice of and give effect to such assignments, there seems to be no good foundation for this objection. It is true that the cases, which are numerous, in which such equitable assignments have been sup- ported, are founded on assignments for a valuable consideration ; but there is little, if any, distinction in this respect between conti'acts and gifts inter vivos; the latter, indeed, when made perfect by delivery of the things given, are executed contracts. 2 Kent's Comm. (3d ed.) 438. By delivery and acceptance the title passes, the gift becomes perfect, and is irrevocable. There is, therefore, no good reason why property thus acquired should not be protected as fully and effectually as property acquired by purchase. And so we think that a gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as a sale. The cases favorable to the defence do not depend on the question whether an assignment must be in writing, but on the question whether a legal transfer is not necessary to give validity to a donation of a chose in action. The donation of a note of hand paj'able to bearer, or of bank-notes, lottery tickets, and the like, where the legal title passes by delivery, is good ; for by the form of the contract no written assign- ment is necessary ; but as to all other choses in action, negotiable securities excepted, it has been held in several cases that they are not subjects of donation mortis causa, on the ground, undoubtedly, for I can imagine no other, that a legal assignment is necessary to give ef- fect to such donations ; and the same reason would apply to donations inter vivos. The leading case on this point is that of Miller v. Miller,- in which it was held that the gift of a note, being a mere chose in 1 The arguments of counsel are omitted. — Ed. 2 3 p. Wms. -356. SECT. YII.] GEOVER V. GROVER, 161 action, could not take effect as a donation mortis causa, because no property therein could pass by delivery, and an action thereon must be sued in the name of the executor. But in Snellgrave v. Bailey,^ Lord Hardwicke decided that the gift and delivery over of a bond was good as a donation mortis causa, on the ground that an equitable assignment of the bond was sufficient. It seems to be very difficult to reconcile the two cases. The distinction suggested by Lord Hard- wicke in the case of Ward v. Turner,'^ in which he adheres to the decision in Snellgrave v. Bailey, is technical, and, to my mind, unsat- isfactory ; and certainly has no application to our laws, which place bonds and other securities on the same footing. We cannot, therefore, adopt both decisions without manifest inconsistency ; and we think, for the reasons already stated, that the decision in Snellgrave v. Bailey is supported by the better reasons, and is more conformable to general principles, and the modern decisions in respect to equitable assign- ments. We are, therefore, of opinion that the gift of the note of hand in question is valid ; and in coming to this conclusion we concur with the decision in the case of Wright c. Wright,* wherein it was held that the gift and delivery over of a promissory note, mortis causa, is valid in law, although the legal title did not pass by the assignment. It is not necessary to decide whether the gift of the mortgage secU' rity is valid, although it is reported to have been said by the Vice Chancellor, in the case of Duffield v. E^lwes,^ that a mortgagor was not compellable to pay the mortgage debt without having back the mortgage estate ; and for that and other reasons he decided that a mortgage was not a subject of a gift mortis causa. This decision, however, was afterwards overruled in the House of Lords, Duffield v. Elwes,* on the ground that the gift of the debt operated as an equi- table assignment of the mortgage. But as we think it clear that the right to maintain this action does not depend on that question, we give no opinion in regard to it. Another objection is, that if the gift was valid and complete, by the delivery of the note, it was annulled ])y the redelivery to the donor. We think this objection also is unfounded. In the case of Bunn V. Markham," fiibbs, C. J. lays it down as a well settled principle, that if after a donation mortis ca^lsa the donor resumes possession, he thereby revokes and annuls the donation. This is tlie law, no doubt. Whether there may not be an exception to this rule, when the donor takes l)ack the tiling given at the request of tlie donee, for a particular purpose, and agrees to act as his agent under circumstances negativing every presumption that he intended to revoke his gift, is a question which it is not necessary now to consider ; for the principle has no rfhition to a donntion intpr rivofi. Whoii such a donation is completed by d(;livery, the property vests immediately and irrevocably in the donee ; and the donor has no more right over it than any other » .3 Atk. 214. 2 2 Vea. Sen. 431. » 1 Cowen, 598. * 1 t>im,& Stn. 243. & 1 IJIi^'h N. R. 497. « 7 Taunt. 230. 11 102 GROVER V. GROVEK. [CHAP. L person. But a donation mortis causa does not pass a title in)medi- ately, but is only to take effect on the death of the donor, who in tiie mean time has the power of revocation, and may at any time resume possession and annul the gift. The last objection to the maintenance of this action by Blanchard, in the name of the administrator, has been sufficiently answered in considering the first objection. It is contended that the consent of tlie administrator is necessary. But if an equitable assignment is suf- ficient to complete the gift, it follows that the administrator is trustee, and cannot set up his legal right in order to defeat the trust. This is fully established by the cases of Dulfield v. Elwes,^ Hunt v. Beach,'^ and Duffield v. Hicks. ^ Judgment for plaintiff for the use of Blanchard.* 1 1 Bligh N. R. 497. 2 5 Madd. Ch. 351. » 1 Dow, 1. * Gifs inter Vivos. Jones v. Deyer, 16 Ala. 221, 225 (semble) ; O'Connor v. Mc- Hugh, 89 Ala. 531; McHugh v. O'Connor, 91 Ala. 243 (semble); Buachian v. Ilug- hart, 28 Ind. 449 (semble) ; Gammon Seminary v. Robbius, 128 Ind. 85 (semble) ; Meri- wether V. Morrison, 78 Ky. 572 ; Wing i'. Merchant, 57 Me. 383 ; Trowbridge w. HolJen, 58 Me. 117; Hale v. Rice, 124 Mass. 292; Lyle v. Burke, 40 Mich. 499; Malone r. Doyle, 56 Mich. 222 (semble); Marston v. Marston, 21 N. H. 491; Wcs- terlo V. De Witt, 36 N Y. 340 (semble) ; Mack v. Hun, 3 Hun, 323 ; Montgomery v. Mil- ler, 3 Redf. 154 (semble); Scott v. Lanman, 104 Pa. 593 (semble); Horner's App., 2 Pennyp. 289 (semble-); Hopkins v. iSIanchcster, 16 R. I. 663; Brunson v. Brunson, Meigs, 630; Carpenter v. Dodge, 20 Vt. 595 (seiiible) ; Wilson v. Carpenter, 17 Wis. 512 (semble) ; Rupert v. Johnston, 40 U. C. Q. B. 11, 16 (semble) Accord. Lee V. Magrath, L. R. 10 Ir. 313; Hitch v. Davis, 3 Md. Ch. 266 Contra. In Fairly v. McLean, 11 Ired. 158 ; Brickhouse v. Brickhouse, 1 1 Ired. 404 ; and Over- ton i;. Sawyer, 7 Jones (N. Ca.), 6, the donor of a note was allowed to maintain trover against the donee. But these cases, which are plainly erroneous, su/ira, p. 140, n. 1, p. 145, n. 1, p. 156, n. 1, are no longer law, even in North Carolina. Kiff v. Weaver, 94 N. Ca. 274, 277, 278. If a note is secured by mortgage, a delivery of the note by way of gift will give the donee the equitable interest in the mortgage '. Ballat, 2 Eq. Alir. 150, Manzfy v- IIiniK'Tfonl, 2 Vj<\- Alir ('id a].) \:^>^> ; ("arler v. Wortliin^- ton. 82 Ala. 't.'ir) . I5anp;.H v. KdwanLs, 88 Ala. .382 , ();;lcsl»y v. Hall, ."iO (ia. 380 , Kco V VaHscr, 2 Irod. Iv|. 5.'i3 ; Wood v. Warden, 20 Ohio, 518 ; Tiuucy v. Fellows, 15 Vt. 525 {srmhlp) , St,itnHiin r White, 20 Wis. 502 (srmhte) Accord. Ladv 'Pvrrfd's (':ise, Freetn. .304 (Jontra. Conf. Anhworth t'. Ontram. 5 Ch. Div. 923 ; Lovell v. Newton, 4 01' D 7 , Rr. Deartner (f'h. T) ), .53 L. T. Rep. 905, which cases were decided unilfr the Married Women's I'n.jifrtv Act, .33 & 34 Vict. c. 93 — Kr». 2 I T. Atk. 025. 8 llde I T Alk. 5(11. 106 RICE V. TRICE. [chap. I. A wife appears bore to be unprovided for, both before aud after marriage. A will is made at a tavern, probably in a passion, for the husband was parted from his wife at that time, by which he gives his whole estate to his brother. Afterwards he is guilty of another unreasonable act, — a gi't to his wife, by deed poll, of all his substance. The question is. Which is to take effect ? The latter cannot take effect us a grant or deed of gift to the wife, because the law will not permit a man to make a grant or conveyance to the wife in his lifetime, neither will this court suffer the wife to have the whole of the husband's estate while he is living, for it is not in the nature of a provision, which is all the wife is entitled to.^ He declared, likewise, that the will was revoked - as to all the per- sonal estate by the deed poll, and yet it cannot take effect as a gift or grant of such personal estate to the plaintiff, but the said personal estate must be distributed. PRICE V. PRICE. In Chancery, before Sir John Romilly, M.R., November 25, December 2, 1851. [Reported in 14 Beavan, 598.] On the 8th of July, 1849, George Price, the late husband of the plaintiff, being seised in fee simple of the messuage in question, and in which he and his wife resided, executed a deed poll in these words : "July 8th, 1849. I hereby certify that I, George Price, collier, of Whitecroft, in the township of West Dean and county of Gloucester, for and in consideration of the good will which I bear towards my wife, Esther Price, also of the same place, have given and granted, and do hereby freely give and grant, to the said Esther Price, in the presence of my uncle, Samuel Price, of the same place, all my land, house, and chattels. And I hereby again declare that I, George Price, have absolutely and of my own accord given and granted the same, without any manner of condition, to the aforesaid Esther Price, and it is her sole and absolute property henceforth and forever. In witness whereof, I have, this 8th day of July, in the year of our Lord 1849, Bet my hand and seal." 1 Warliek v. White, 86 N. Ca. 139 ; Coakes v. Gerlach, 44 Pa. 43 Accord. But a husband's orjft of his entire property to his wife was upheld in Dale v. Lin- coln, 62 111. 22; Wilder v. Brooks, 10 Minn. 50; Thomp.son v. Allen, 103 Pa. 44; Jones V. Obenchain, 10 Grat. 259. See also Seals v. Robin.son, 75 Ala. 363. — Ed. ' So much of the opinion as relates to the question of revocation is omitted. — Ed. SECT. VII.] PRICE V. PRICE. 167 The deed was executed by George Price, and witnessed by William Tanner Sydney and Samuel Trice. Upon the execution of the deed, the grantor delivered it into the custody of one of the witnesses attesting the execution. On the 20th of August, 1850, George Price died intestate, nothing further having taken place. Esther Price having continued in possession, Emma Price, the heir- ess at law of George Price, commenced an action of ejectment against her, and obtained a verdict. Esther Price filed the present bill against Emma Price, the heiress at law of George Price, praying to have it declared that the defendant was a trustee of the legal estate in the messuage, for the benefit of the plaintiff ; for consequential relief, and for an injunction to restrain execution in the action of ejectment brought by Emma Price, to recover possession of the property, in which the verdict had been obtained. The common injunction had been obtained for want of answer; and, the answer having been put in, the plaintiff now showed cause against dissolving the injunction, upon the merits confessed by the answer. ~ ♦• Mr. Edclis, for the plaintiff. Mr. Sandys, for the defendant.^ The Master of the Rolls. I will consider this case. The Master of the Rolls. It is not disputed that the deed in question was wholly inoperative at law ; but the plaintiff contends that this deed created the husband a trustee for the separate use of his wife, and that the heiress at law of the intestate became, on his death and in like manner, a trustee for the plaintiff. Upon the statement of this case by the counsel for the plaintiff I entertained a strong opinion tliat the deed did Hot create any trust which this court could enforce ; l)ut, as no cases were then called to my attention, I reserved my judgment, in the apprehension that I might, by acting upon my first impression, do injustice to the plaintiff, and in onler that I jniglit l)c able to examine tlic later authorities on tills Hubject. 'I'liis examination has confirmed me in tlie view I origi- nally entertained, that this deed created no trust that this court can enforce. In this case, it is first to be considered whether tlie deed would havo created a trust enforceable in this court as between strangers ; and, if it would not, wiiether the circumstance that the transaction is one between luisijand and wife produces any such relation. As between strangers, I am of opinion that this deed would have been merely inoperative in equity as well as at law. The rule of courts of equity with regard to gifts inter vivos is, that they will ])e enforced only wiien the gift is completed, and when nothing remains to perfect * The arguments of counasl are omitted. — Ed. 1G8 TRICE V. riiicE. [chap. I. the title of the donee. The cases of trust, however, are not exactly the same ; for if the owner of an estate in fee simple, having the legal estate, or one Avho has stock standing in his name, execute a deed declaring himself to be a trustee of the estate or of the stock for the benefit of another, and he delivers that instrument to the cestui que trust, and acts upon it, although no conveyance of the legal estate and no transfer of the stock should take place, (though I do not know a case precisely in poiut,^) still that would probably be suflicient to create a trust, and the observations of Lord Eldon in Ex parte Pye and Dubost support that doctrine. That case^ however, is one of great peculiarity. But, on the other hand, if the transaction purports to be a gift, and not a declaration of trust, this court will not convert an imperfect gift into a trust. The ease of Edwards v. Jones is distinct on this point. The obligee of the bond, in that case, made an indorsement on it in terms very similar to the present deed. It was to this effect: "I, Mary Custance, do hereby assign and transfer the within bond or obligation, and all my right, title, and interest thereto, unto and to the use of my niece, E.E., with full power and authority for the said E. E. to sue for and recover the amount thereof, and all interest now due or hereafter to become due thereon." Both Sir L. Shadwell, originally, and Lord Cottenham, on appeal, held this to be an imperfect gift and not a trust, and that the relation of trustee and cestui que trust was not created. This case was commented upon with approbation, and fol- lowed by Vice Chancellor Wigram and Lord Lyndhurst, in Meek v. Kettlewell,^ and I have no doubt but that it correctly states the law- elating to these instruments. What is the case here? The instrument does not profess to be a aeclaration of trust, but to be a distinct gift. The giver treats it as such, and parts with the deed, which, if he had meant to constitute himself the trustee, he should not have done. It is, in truth, not a declaration of trust, but either a gift of the whole property or nothing. As a gift it is clearly inoperative ; no estate passed, and, in truth, nothing took place, but the execution of the deed, the communication of it to the wife, and the delivery of it to the attesting witness. If I were to decide that this deed would be good as between strangers, I 1 The learned judge seems to have overlooked Wheatley r. Purr (1837), 1 Keen, 551, and Thorpe v. Owen (1842), 5 Beav. 224. As late as 1855, however. Lord Cran- worth, C. said, in Scales v. Maude, 6 D. M. &^G. 43, 51 : " A mere declaration of trust by the owner of property in favor of a volunteer is inoperative, and this court will not interfere in such a case. The case is different where there has been a change of legal ownership, and so a trust has been constituted, and then the court will inquire what the trusts are. But there is no authority in favor of the defendant's conten- tion." His Lordship corrected this diclum in .Jones v. Locke, 1 Ch. Ap. 23, 28, re- marking : " And there is no doubt also that, by some decisions, unfortunate I must think them, a parol declaration of trust of personalty may be perfectly valid even when voluntary." — Ed. 2 1 Hare, 464. SECT. VII.] PRICE V. PRICE. 169 should really be deciding that, if a man execute a deed, simply sajnng, " I hereby give all my estate at A. to another," and nothing further takes place, either to give possession or to transfer the legal estate, this court would compel delivery of the estate. This would, in my opinion, be contrary to the authorities, and I entertain no doubt but that, in such a case, equity would leave the parties to their legal rights, whatever they might be, and would not, in any respect, interfere to assist either party. The observations of Sir J. Wigram are admira- bly accurate and distinct on this head. The next question is this : This was a transaction between husband and wife ; the deed was executed for the benefit of the wife ; it is ex- pressed to be for her sole use. Did this circumstance give to the trans- action a different character from that which it would have had if it had been one between strangers? "Was there a good trust created as soon as the deed was executed? In other words, could the wife, during the life of the husband, have maintained a bill in this court, by her next friend, against the husband, to have it declared that he was a trustee of this property, and to have the trusts applied for her separate use ? I am of opinion that no such bill could have been supported. It is true that Lord Thurlow, in Colman v. Sarrel, says : " Whenever you come into equity to raise an interest by way of trust, there must be a valuable consideration, or, at least, what a court of equity calls a meritorious consideration, such as payment of debts, or making a provision for a wife or child." This, if taken literall}', is, I think, inaccurately stated, because, if the relation of trustee and cestui que trust be clearl}' es- tablished, the court will act upon it, although there was no consideration at all ; but if it be meant by this passage that instruments importing a gift are considered in a different point of view wlien there is a merito- rious consideration than where there is none at all, or, in other words, that a voluntary gift by a man to his creditors, or to his wife or child, is to be regarded on different principles from one to a stranger, I am unable to discover on what principle such a proposition can properly rest; nor can I find it supported by any of the decided cases. On the contrary, the oi)i)Osite is expressly decided in the case of Jeffreys v. Jeffreys.' In that case, a father, by a voluntary settle- ment, conveyed certain lands to trustees, in trust to pay him an an- nuity for his life, and, after his death, to sell and divide the proceeds amongst liis danghtors ; and, by the same deed, he covenanted to sur- render certain cojjyholds to the uses of the settlement, but which he omitted to do. The court executed the trust of the freeholds, tli.-it being complete, but dismissed the bill with costs, so far as related to the copyholds. Upon the wliole, therefore, T am of opinion tliat the relation of trus- tee and cpstni fjnc trust was not created in tliis case ; tluit tlie transac- tion was an imperfect gift, in regard to which equity will not interfero » Cr. & P. 138. 170 BADDELF.Y V. BADDELEY. [CIIAP. I. to assist either siile, but will leave the parties as it finds thein, and that, cousequeutly, this injunction must be dissolved.^ BADDELEY v. BADDELEY. In the High Court of Justice, before Sir Richard Malins, V. C, July 24, 1878. [Reported in 9 Chancery Division, 113.] On the 30th of April, 1872, John Baddeley executed a deed poll, of which the material part was as follows : " Whereas I am beneficially possessed of the ground rents hereby intended to be settled, now in consideration of my love and affection for my wife I do hereby settle, assign, transfer, and set over unto my said wife Eliza Baddeley as though she were a single woman, her executors^ administrators, and assigns, all that my share in [certain specified houses and ground rents in Middlesex] as though she were now a, feme sole and unmarried, and in accordance with the spirit and intention of the recent act of Farlia- ■ meut entitled the Married Women's Property Act, 1870." This deed was duly registered in the Middlesex Registry, and Mrs. Baddeley entered into the receipt of the rents. Mrs. Baddeley claimed a declaration that the deed poll operated as a valid assignment, and a demurrer to the claim was put in on behalf of Mr. Baddeley's legal personal representatives. J. Pearson^ Q. C, and Gregory, for the legal personal represent- atives. Glasse, Q. C, and Metliold, for the widow. '^ . Malins, V. C. No one can doubt that the husband's intention here was to give his wife the leasehold property ; but it is contended that the deed was intended to be an assignment, and is therefore inoperative as between husband and wife. No doubt a voluntary gift by way of assignment is invalid, unless it is perfected by a transfer ; the volun-i tary settlor must do all that he can do to transfer the property, and a husband cannot transfer to his wife. But this is, in my opinion, a case where the husband has declared himself a trustee for his wife, and she entered into possession, — an act which I construe, not as an attempt to take possession adversely to her husband, which could not be done, as is shown by Roe v. "Wilkins,^ but as a taking possession of her sep- 1 In Wooflford v. Charnley, 28 Beav. 96, where one who held the legal estate in a certain freehold to secure the payment of .£5,000, for which payment, however, no one ■was personally liable, assigned, by a voluntary deed, his interest in the said £5,000, to trustees upon certain trusts therein declared, Sir John Romilly, M. R., decided that the deed was wholly inoperative. See Lane v. Ewing, 31 Mo. 75. — Ed. 2 The arguments of counsel are omitted, — Ed. » 4 A. & E. 86. SECT. YII.] IN KE BRETON'S ESTATE. 171 arate property under the trust. The husband was no dorbt mistaken in thinking he could make this gift by way of assignment ; but there is enough in the deed to make it operate as a declaration of trust which the court ought to carry into effect. The law on this subject is cor- rectly stated in Grant v. Grant, ^ and I am not disposed to disagree with Richardson v. Richardson and Morgan v. Malleson, notwith- standing the remarks of Sir G. Jessel in Richards v. Delbridge. I therefore declare that there is a trust properly constituted in favor of Mrs. Baddeley.- IN RE BRETON'S ESTATE. BRETON v. WOOLLVEN. In Chanceuy, before Sir Charles Hall, V. C, April 2, 1881. [Reported in Law Reports, 17 Chancery Division, 416.] Frederick Breton, who died on the 7th of June, 1880, by his will, dated the 8th of August, 1878, appointed two executors and trustees, and after bequeathing certain pecuniary legacies, and making a specific bequest to the widow of a late brother, and specifically devising certain freehold property, bequeathed all the residue of his property and effects to his trustees upon trust at their discretion to continue them or to make other investments of the moneys which were vested in them, and to permit his wife to receive the income of his residuary 1 34 Beav. 623. 2 Fox V. Hawks, 13 Ch. D. 822; Jones v. Clifton, lOl U. S. 225; Moore v. Page, 111 U. S. 117; McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67; Barker v. Konernan, 13 Cal. 9 (semhle) ; Dale v. Lincoln, 62 111. 22; Majors v. Ever- ton, 89 111. 56; Sanfurd v. Finkle, 112 111. 146; Sims r. Kickcts, 35 lud. 181 ; Brook- bank V. Kennard, 41 Ind. 339 ; Wilder v. Brooks, 10 Minn. 50 ; Wells v. Wells, 35 Miss. 638; Shepard v. Shopard, 7 Johns. Ch. 57 ; Hunt v. Johnson, 44 N. Y. 27 ; Ma- sou i>. Libbey, 19 Hun, 119 (see Joimson v. Kogers, 35 Hun, 267); Miller v. Miller, 17 Oreg. 423; Garner v. Garner, Busbee, Eq. 1 ; Crooks v. Crooks, 34 Ohio St. 610; Penn. Co. v. Neel, 54 Pa. 9; Story r. Marshall, 24 Texas, 305; Jones v. Obenchain, 10 Grat. 259; Sayers v. Wall, 26 Grat. 354; McKenzie v. Ohio Co., 27 W. Va. 306; Humphrey v. Spencer (W. Va. 1892), 14 S. E. ]{. 410; Putnam v. Bickncll, 18 Wis. 333; Hannan v. Oxlcy, 23 Wis. 519; Wheeler Co. v. Monahan, 63 Wis. 198; Kinney V. Dexter (Wis. 1892), 51 N. W. II. 82 Accord. Fowler y. Trebein, 16 Ohio St. 493,497 Contra. But see Crooks v.' Crooks, 34 Ohio St. 610, 615. In Adams v. Adams, 21 Wall. 185, where a husband signed, and had recorded, a deed of conveyance of real estate to A., in tru.^t fur his wife, Imt the deed failed to transfer the legal estate because of the refusal of A. to become; a party to the con. veyance, it was held that an irrovocahlo trust had nevertheless been created for the wife. A gratuitous conveyance by a wife to her liusband is ineffectual, both at law and in equity. Kinnaman i;. Pyle, 44 Ind. 275; White v. W.iger, 25 N. Y. 328; Winaus v. Peebles, 32 N. Y. 423 ; Blaesi v. Blaesi, 14 N. Y. Civ. Pr. 216. (See Ihuit v. Johnson, 44 N. Y. 27, 35-37 ; Townshend v. Towushcud, 1 Abb. N. C. 81. J But sec Porter v. Wakefield, 146 Mass 25, 27. — Ed. 172 IN RE bueton's estate. [ciiat*. l estate and the investments during her life, and after her death, as to the s:\nio residuary estate and the income, upon trust for his six nieces in equal shares. The testator had no real estate not specifically devised, but his per- sonal estate not specifically bequeathed was of the value of about £•22,000. The testator intermarried with the plaintiflf in January, 1868. At that time she was possessed of certain articles of jewelry of her own, and on the occasion of the marriage, and subsequently, her husband gave her many other articles of jewelry ; and all these articles she always retained and had sole possession and used and wore as she pleased. The testator having previously purchased some furniture, on the 22d of April, 1868, wrote and handed to his wife the following paper : — " This is to certify that there being now at Messrs. Maple & Co., 145 Tottenham Court Road, one hundred pounds worth of furniture belonging to me, I give the same to my dear wife Agnes A. Breton, absolutely and unreservedly, for her own use and benefit. " Haxell's Hotel, Strand, Loudon, Fredk. Breton, April 22d, 1868. Major Rl. Wilts Militia." The testator, having purchased some plate and plated articles, wrote to the plaintiff thus : — " London, June 1st, 1868. " My dearest Wife, — I this day make you a present of the plate, &c., now at Mappin and Webb's, and which they are taking care of for me, for your sole use and benefit. The sum I paid for it is £59 7s. lOd. " Ever yr affecte husband, " Fredk. Breton." The testator and his wife subsequently hired a house at Forest Hill, where they went to reside, and thereupon the furniture, plate, and plated articles were removed thither. Other furniture and house- hold goods purchased by or belonging to the testator were placed in the same house, and on the 18th of June, 1868, he wrote and handed the following to the plaintiff : — " My dearest Wife, — Having previously made over to you for your sole use and benefit a certain amount of furniture, plate, «&c., I now present you with everything, furniture, linen, &c., plate, china, and glass, and all jewelry now belonging to me at No. 1 Dulwich Villas, Devonshire Road, Forest Hill. All this to be yours and yours only from this date, June eighteenth, 1868. This gift from " Yr ever affecte husband, "Fredk. Breton." The testator and his wife subsequently went to reside in a house in the Belvedere Road, where they lived at the time of his death. To that SECT. VII.] IN EE BRETON'S ESTATE. 173 house all the furniture, plate, and plated and other articles and goods were taken from the house at Forest Hill. "While the testator and his wife resided together at the two houses, the articles mentioned were used in the ordinary wa}^ and from time to time various additions were made thereto l)y the testator ; but during his life he always, as alleged, spoke of all the furniture and other articles and goods, and the said additions thereto, as being the sole property of his wife, and often referred to the useful provision for her comfort which she would have therein and by means thereof after his death. The trustees and executors having insisted that all the said jewelry, furniture, plate, and plated and other articles and goods, and the said additions thereto, formed part of the testator's estate, the widow brought this action to have it ascertained and declared whether the same, or any and which of them, or any and what parts thereof, belonged to her or formed part of the testator's estate ; and if neces- sary an administration of the trusts by the Court. At the hearing, the executors did not claim the articles of jewelry. W. Pearson^ Q. C, and Menskaw, for the plaintiff.^ Cozens-Hardy, for the defendants, the trustees, and Hastings, Q. C, and //. Greenwood, for the defendant, the niece, were not called upon. Hall, V. C. I am unable to support this gift to the plaintiff, the wife, as a trust declared by her husband in her favor. I am very sorry for it, because it is a monstrous state of the law which prevents effect being given to such a gift. I think that the dilliculty in the case is occasioned by two or three of the decisions which have been referred to, and which seem to favor the contention that these paper writings can be supported as a declaration of trust by the husband in favor of his wife. It was suJ)mitted that the husband must be taken to liave intended, knowing wliat the law is, to constitute himself a trustee for her, that being the only way of giving effect to the paper writings, i. e., as other trustees were not appointed, he must be held to have constituted himself a trustee. That argument ai)pears to me to come to this, that in every case of an imperfect gift on the part of the alleged donor, if the gift be not effectual by reason of an incom- plete transfer of the property from the alleged donor to the intended donee, or to some person who is to bo a trustee foi' the intended donee, the Court must give effect to the donation by holding that the alleged donor was a trustee, as it must be considered that he knew the law, and that if he did not eflectiiate his o])ject in the one way in which it would have been valid, it must be done in another. But in truth, in the one case as well as in the other, wlntlicr a wife or a stranger be the object of the gift, it is manifest from the transaction taken by itself that the alleged donor was mistaken as reg:irds the proper and legal mode of effectuating that which he intended to do. It is plain 1 Tbo argument fur the plaiutiff is omitted. — Ed. 174 IN KE BRET0:S'S ESTATE. [CIIAP. L that the husband was mistaken, and it is not necessary to impute to him that lie meant to make the gift in an ineffectual way. Looking at the documents, they are a contradiction of any intention on his part to do that. The case of Grant v. Grant ^ was that of a gift to a wife, and if the late Master of the Rolls had based his judgment on that ground, sup- ])ortiug it as being a special and peculiar case, and creating a different law as applicable to husband and wife in every case, I should have nothing more to do than to follow that decision. But it is plain, from the reasons given for the decision, that it was meant to be applicable to every other case of the kind, and not merely to that of husband and wife. No other cases of a gift by a hus])and to his wife have been referred to excepting the two recent decisions of Vice Chancellor Malins in the case of Baddeley v. Baddeley, and of Vice Chancellor Bacon in the case of Fox v. Hawks.^ As to the former ease, I observe that Vice Chancellor Malins said that the law was correctly stated in the case of Grant v. Grant, and that he was not disposed to disagree with the judgments in Richardson v. Richardson, and in Morgan v. Malleson, notwithstanding the remarks of the Master of the Rolls in the case of Richards v. Delbridge. That being so, there is, as Vice Chancellor Malins seems to have meant there should be, a clear dif- ference of opinion between himself and the Master of the Rolls upon this question, because he adopted the decisions in the two cases of Richardson v. Richardson and Morgan v. Malleson, — decisions which the Master of the Rolls would not follow. That being so, I must look at all the authorities and endeavor to find a correct statement of the law on the subject. I consider that the principal authority in these cases is that of the case of Milroy v. Lord, where there is a very clear and elaborate statement of the law by the late Lord Justice Turner. A portion of the judgment of the Lord Justice was quoted by the Master of the Rolls in Richards v. Delbridge, and there is much in it which is, I think, applicable to this case. The Lord Justice, after stating that under the circumstances of the case before him it would be difficult not to feel a strong disposition to give effect to the settle- ment to the fullest extent, said, " But in order to render the settlement binding, one or other of these modes " — i. e. transfer of the property or declaration of trust — " must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imper- fect gift." What I am asked to do in this case is to read that sentence as having introduced mto it the words, " except as to a gift from hus- band to wife." The Lord Justice Turner also sard, " The cases, I think, go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes." To give effect to this gift I must introduce the words, " except in the case 1 34 Beav. 623. 2 13 Ch. D. 822. SECT. VII.] IN KE BKETON'S ESTATE. 175 of a -wife." The Lord Justice proceeded to say, "If it is intended to take eflfect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instru- ment would be made effectual by being converted into a perfect trust" ; and he added that it must be plainly shown that it was the purpose of the settlement, or the intention of the settlor, to constitute himself a trustee. It is clear in this case that it was not so intended. It was not the purpose or meaning of the husband in writing these letters to constitute himself a trustee for his wife. I can well under- stand in such a case a husband saying to his wife, " I mean to give you this as your own, but when you ask me to be a trustee for you I must respectfully decline. I do not want to be involved in a trust of that kind or in any trust." Therefore it appears to me that, notwith- standing the decisions of Vice Chancellor Malins and Vice Chancellor Bacon in the two cases which have been observed upon, — and here I may just state that the case before Vice Chancellor Bacon of Fox v. Hawks had many special circumstances in it which are not unlikely to have influenced his mind in arriving at the conclusion to which he came, — I must hold that the furniture, plate, and other particulars, excepting the jewelry, do not belong to the plaintiff, but form part of the late husband's estate.^ 1 Gore V. Knight, 2 Vern. 535, n. 2 ; IMoore i'. Moore, 18 Eq. 474 ; Howes v. Pru- dential Co., 49 L. T. Rep. 33; Re Whitaker, 21 Ch. D. 657; Hayes v. Alliance Co., L. R. 8 Ir. 149 ; Dilts v. Stevenson, 17 N. J. Eq. 406 ; "Wade v. Eisiier, 9 Rich. Eq. 362 (semhle) Accord. Cowper's Case, 3 Atk. 39, 46 (cited) ; Grant v. Grant, 34 Beav. 623 , Walliiigs- ford V. Allen, 10 Pet. 583, 594 (semble) ; Williams v. Maull, 20 Ala. 721 ; Mollwain V. Vaughan, 76 Ala. 489; Rabitte v. Orr, 83 Ala. 185; Eddins v. Buck, 23 Ark. 507, Demiug v. Williams, 26 Conn. 226 ; Jennings v. Davis, 31 Conn. 134 {semble) ; Uudcr- hill '•. Morgan, 33 Conn. 105 , Wheeler v. Wheeler, 43 Conn. ■f)03 , Long v. White, 5 J. J Marsh. 226, 229 (si-mhlc) ; Thomas v. Ilarknes.s, 13 Bu.sh, 23; Adams i'. Brackett, 5 Met. 280, 285 (semhle) ; Whitten i-'. Whitten, 3 Cush. 191, 199 (semble), (hut see Spel- man >'. Alhrich, 126 Mass. 113,) Ratcliffo v. Dougherty, 24 Miss. 181 ; Wells c. Tread- well, 28 Miss. 717, Walker v. Walker, 25 Mo. 3(i7 ; Welch v. Welch, 63 Mo. 57; Mc- Coy 1-. Hyatt, 80 Mo. 130; Clark v. Clark, 86 Mo. 114; Botts v. Gooch, 97 Mo. 88; Skillman r. Skillman, 2 Bca.>4 IShiss. 138. See also Manny n Rixford, 44 111. 129. —Ed. 176 STA.TUTE OF FRAUDS. fCHAP. L SECTION VIII. The Statute of Frauds. STATUTE 29 CHARLES II., Chapter 3, Sections 7, 8, and 9. 1676. [8 Statutes at Large, 406.] VII. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June all declarations or creations of trusts or confidences of any lands, tenements, or heredita- ments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect. VIII. Provided always, That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law, or be trans- ferred or extinguished by an act or operation of law, then and in every such case such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made ; any- thing hereinbefore contained to the contrary notwithstanding. IX. And be it further enacted, That all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be wholly void and of none eflfect.^ - 1 American Statutes. — The seventh section of the English Statute of Frauds has been adopted with substantially the same phraseology in Arkansas. — Ark. Dig. (1884), § 3382. Florida. — Fla. Dig. (1881), c. 32, § 2. Illinois.— 111. Rev. St. (1887), p. 742, § 9. Maryland. — Alex. Br. St. (1870), p. 546. Missouri. —Mo. Rev. St. (1879), § 2511. New Jersey. — N.J. Rev. St. (1877), p. 445, § 3. Pennsylvania. — 1 Br. & Purd. Dig. (1883), p. 831, § 3. South Carolina. —S. Ca. Gen. St. (1882), § 1961. In the following States trusts of land must be " created or declared " in writing : California. —Cal. Civ. Code (1885), § 852. Dakota. — Dak. Comp. L. (1887), § 2795. Georgia.- Ga. Code (1882), § 2310. Maine. — Me. Rev. St. (1883), c. 73, § 11. Ma.ssachusetts. — Mass. Pub. St. (1882), c. 141, § 1. New Hampshire. — N. H. Gen. L. (1878), c. 135, § 13. Vermont. — Vt. Rev. L. (1880), § 19.33. In others such trusts must be " created or declared by deed or conveyance in writing," e. g. : '"^ Colorado. —Colo. Gen. St. (1883), § 1515. SECT. VIII.] STATUTE OF FRAUDS. 177 Michigan. — 2 How. An. St. (1882), § 6179. Minnesota. — Minn. St. (1878), c. 41, § 10. Montana.— Mont. Comp. St. (1887), § 217, p. 651. Nebraska. — Neb. Comp. St. (1881), c. 32, § 3. Nevada. — Nev. Gen. St. (1885), § 2624. New York. — 4 N. Y. Rev. St. (1889), 2589. Oregon. — Hill's An. Laws (1687), 593, 594. Or bv " deed or instrument in writing " : Idaho. — Id. Rev. St. (1S87), § 6007. Utah. — Ut. Comp. L. (1888), § 3916. Wisconsin. — Sanborn and Berryman, Annot. St. (1889), § 2302. In two States the statute provides that trusts shall be " created " in writing, viz. : Alabama.— Ala. Code (1886), § 1845. Indiana. — Ind. Rev. St. (1881), § 2969. In Maine, at one time, trusts must be "created and declared." Me. Rev. St. (1841), c. 91, § 31. In two others " declarations or creations of trusts . . . must be executed in the same manner a s, dee ds of conveyance," viz. : Iowa. — McClaiu's AlTCode (1888), § 3185. Kansas.— Kas. Comp. L. (1885), § 1092. See also § 6042, 1. In one State trusts must be " made and manifested by writing," and the writing must be " acknowledged and proved as other writings," must be recorded, and takes effect only from the time it is lodged for record, viz. : Mississippi. — Rev. Code Miss. (1880), § 1296. In the following States and Territories there is no statute making a writing essen- tial tu the validity of a trust : Arizona. Rhode Island. Connecticut. Tennessee. Delaware. Texas. Kentucky. ^ Virginia. New Mexico. West Virginia. North Carolina. Wyoming. Ohio. In these States, therefore, there would seem to be no objection to oral trusts of land. This view has been adopted in most of them. Hall v. Livingston, 3 Del. Ch. 348; Pierson u. Pierson, 5 Del. Ch. 11 ; Miller v. Stokely, 5 Oh. St. 197 ; Mathews v. Leaman, 24 Oh. St. 615 ; Harvey v. Gardner, 41 Oh. St. 642 ; Haywood ;;. Ensley, 8 Humph. 460; James v. Fulcrod, 5 Tex. 512; Mead v. Randolph, 8 Tex. 191, 198; Fretelliero v. Hiixlos, 57 Tex. 392; U. S. Bank v. Carriugton, 7 Leigh, 576 (se.nbJe) ; Walraven v. Locke, 2 Pat. & II. 547, 552 (semhle). (But see Sprinkle v. Ileyworth, 26 Grat. 384, 392 ; Borst v. Nallo, 28 Grat. 423, 436.) A similar view prevailed in Miri.si.'isippi and Ponn.sylvania before there wxs any statutory requisite of writing iu the ca.se of tru.sts. .Sot:gins v. Hoard, 31 Miss. 426, 429; Hubert c Murjihy, 7 Barr, 420; Freeman v. Freeman, 2 Pars. Eq. 81; Lingenfelter v. Ritdiey, 58 Pa. 485 (explaining Porter v. Mayfiold. 21 Pa. 263) ; Mea.^on v. Kaino, 63 Pa. 335, 339. In Connecticut and Fvcntucky, however, the courts have held, but upon rea.soning that will not boar examination, that a writing is essenti.nl to the validity of a trust oi land although not required by .any statute. Dean v. De.an, 6 Conn. 285 ; Ciiurcb r. Sterling, 10 Conn. 3KH, 401 ; Vail's Ap ,37 Conn. 185, 198 ; Todd v. Munson, 53 Conn. 579; Chiles v. WoolHr)n, 2 Bil.b, 71 ; Parker v. Bodicy, 4 Bibb, 102; CJravcs v. Diigau, 6 Dana. 331, .332; Ayntisworth v. Haidcnian, 2 Duv. 565, 5G9-570. In North Carolina a trust created afu-r the analogy of a feoffment to uses is valid though oral. Shflton v. Siieiton, 5 .lonos, Kq. 292; Biggs v. Swan, 6 .Jones, I''<|. 118; Leggett r. Lcggett, 88 N. Ca. 108. But a trust folii»wing the analogy of a bargain aud sale, or covenant to stand seised, can arise only by deed. Frey v. Ramsour, 66 N. Ca. 460 ; I'ittinan c I'lttrn-nn, 107 N. Ca. 159. In West Virginia a uiii.i>Jo distinction is taken. An oral trust is valid if in favor of a third person, but invalid if in favor of the grantor. Ilardman v. Orr, 5 W. Vai 12 173 STATUTE OF FRAUDS. [CTIAP. L 71 ; Ncase r. Capchfirt, 8 W. V.-v. <)r), 109 ; Tr.^ll v. Carter, 15 W. Va. 567, 578 ; Zaiie !-. Fink, IS W. Va. G'j;3, 755; Tusey c Ganlnor, 21 W. Va. 4G9 ; Cain v. Cox, 23 W. Va. 594 ; Titclieuell v. Jackson, 26 W. Va. 460. What is a Sufficient Comi-liance with the Statute. — In jurisdictions ■where by the terms of the statute a trust need not be created, but must be "mani- fested and proved " by a writing, a subsequent admission in writing by the party to be diarjred is as effectual as the ex])rcssiou of a trust iu the instrument of its creation. And this admission, like any other, may bo contained in almost any conceivable docu- ment, as a letter, pamphlet, petition, answer, deposition, receipt, contract, or the like. Smith V. Wilkiusou, 3 Ves. Jr. 705, cited; Forster v. Hale, 3 Ves. Jr. 096, 707, 5 Ves. 308, 315; Kaud.all v. Morgan, 12 Ves. 67, 73-74; Dale v. Hamilton, 2 l^liill. 266, 275; Smith r. Matthews, 3 I). F. & J. 139, 151 ; Pant Mawr Co. v. F'leming (Court of Ses- sion, 1883), 10 H. 457 ; Robson v. Harwell, 6 Ga. 589, 604; McLaurie v. Partlow, 53 111. 340; Kingsbury v. Burnside, 58 111. 310; Phillips v. South Park Commissioners, 119 111. 626, 640; Aynesworth v. Ilaldeman, 2 Uuv. 565, 569 ; Bragg v. Paulk, 42 Me. 502; Bates v. Hurd, 65 Me. 180; McClellan v. McClelian, 65 Me. 500; Maccubbin v. Cromwell, 7 Gill & J. 157; Albert v. Winn, 5 Md. 66, 73; Gordon v. McCulloh, 66 Md. 245; Earrell v. Joy, 16 Mass. 221 ; Safford v. Rantoul, 12 Pick. 232; Montague V. Hayes, 10 Gray, 609; Urann i-. Coates, 109 Mass. 581 ; Cornelius v. Smith, 55 Mo 528 ; Packard v. I'utnam, 57 N. H. 42 ; Hutchinson v. Tindal, 2 Green, Ch. 357 ; Smith V. Howell, 3 Stockt. 349 ; Brown v. Combs, 5 Dutch. 36 ; McVay v. McVay, 43 N. J. Eq. 47 ; Xewkirk v. Place, 47 N. J. Eq. 477 ; Movan v. Hays, 1 Johns. Ch. 339, 342 ; Steere v. Steere, 5 Johns. Ch. 1, 12 ; Gomez v. Traders' Bank, 4 Sandf. 102 ; Cook v. Barr, 44 N. Y. 156; Kutledge v. Smith, 1 McC. Ch. 119; Reid v. Reid, 12 Rich. Eq. 213 ; Mathews v. Masse}', 4 Baxt. 450; Piuuey v. Fellows, 15 Vt. 525, 539 ; McCaud- less V. Warner, 26 W. Va. 754 ; Pratt v. Ayer, 3 Chand. 265. Statutes requiring trusts to be " created or declared " in writing have received a similar interpretation. Jenkins v. Eldredge, 3 Story, 294 (semble) ; Bates v. Hurd, 65 Me. 180 ; McClellan v. McClellan, 65 Me. 500 ; Urann v. Coate.s, 109 Mass. 581 . Even when the trust must be " created or declared by deed or conveyance iu writing," the deed or conveyance may be subsequent to the creation of the oral trust. Sime v. Howard, 4 Nev. 473 ; Wright v. Douglass, 7 N. Y. 564 (see, liowevcr. Cook v. Barr, 44 N. Y. 156, 159j; White v. Fitzgerald, 19 Wis. 480. Compare Loring v. Palmer, 118 U. S. 321, 339. If the statute requires the trust to be "created" or "created mid declared" in writing, a subsequent memorandum would seem to be insufficient. The court so de- cided in Richardson v. Woodbury, 43 Me. 206, 212, interpreting Me. Rev. St. (1841), c. 91, § 31, now repealed. But see, contra, Gaylord v. Lafayette, 115 Ind. 423, 428. The question was expressly left open in Patton v. Beecher, 62 Ala. 579, 587. Inasmuch as a subsequent memorandum operates as an admission, the intention of the party making it is immaterial. Welford v. Beazely, 3 Atk. 503 ; Bates r. Hurd, 65 Me. 180; Hutchinson v. Tindal, 2 Green, Ch. 357, 3G2 ; Browne, St. Frauds (4th ed), § 99. It is conceived, indeed, that the memorandum, if otherwise complete, would be a sufficient compliance with the statute, even though it contained an express repudiation by the trustee of his liability. See Langdell, Sales, Index, ^ 72 ; Bailey v. Sweeting, 9 C. B. n. s. 843 ; Buxton v. Rust, L. R. 7 Ex. 279. Tiiere is, however, one exception to this proposition. A defendant who in his answer to a bill in equity admits an oral trust may nevertheless claim the benefit of the statute as a bar to the relief sought. Dean v. Dean, 1 Stockt. 425 {semble) ; Whiting v. Gould, 2 Wis. 552 {semble). If, on the other hand, the defendant does not rely on the Statute of F'rauda in his answer, and the answer discloses the terms of the trust, the plaintiff will be entitled to a decree for the execution of the trust ; McLaurie v. Parker, 53 III. 340 ; McCubbin V. Powell, 7 Gill & J. 157; the section of the statute relating to tru.sts differing from that relating to the sale of goods, the memorandum of which must exist before action brought. Langdell, Sales, Index, 1 72. Antecedent Writiwj. — A writing antecedent to the creation of a trust cannot operate as an admission, which must, of course, relate to a contemporaneous or pre-existing fact. But such a writing may be an offer to act as trustee, which upon acceptance be* SECT. YIIL] GAEDNER V. EOWE. 179 GARDNER v. ROTTE. In Chancery, before Sir John Leach, V. C, Mat 9, June 19, July 5, 1825. [Reported in 2 Simon Sc Stuart, 346.] The Vice Chancellor.^ On the 1st of January, 1812, the Earl of Mount Edgecumbe, by indenture of that date, granted to the bankrupt George Wilkinson the lease or set of a certain mine, called the Wheal Regent Mine, for a term of twenty-one years, for the considerations therein mentioned ; and, by an indenture bearing date the 23d August, 1813^ the bankrupt George Wilkinson, who, at the request of Rowe, had previously assigned five fourteenths to one Brodrick, after reciting that his name was used in the said indenture of the 1st January, 1812, as a trustee for Joshua Rowe, assigned and transferred the remaining fifty-nine parts or shares to the said J. Rowe, for the residue of the comes a written obligation so to act, and as snch is a compliance with the statute. Bellamy v. Burrows, C. t. Talbot, 97 ; Mocton v. Tcwart, 2 Y. & C. Ch. 67. See also Jackson v. Moore, 6 Cow. 706, 726. It was intimated in Childers v. Childers, 1 DeG. & J. 482, that a letter written by a grantor antecedent to a deed of conveyance, snd not referred to in the deed, might be a sufficient writing to satisf}' the statute. But this opinion seems erroneous. The case itself was rightly decided on other grounds. Hkqlisites of the Writing. — The writing must contain all the terms of the trust. Smith i-. Matthews, 3 D., F. & J. 13'J; Loring v. Palmer, 118 U. S. 321 ; Gay- lord V. Lafayette, 115 Ind. 423, 429 ; McClellan v. McClellan, 65 Me. 500, 506 {semble) ; Blodgett V. ilildreth, 103 Mass. 484, 486 ; York v. Perrine, 71 Mich. 567 ; Newkirk v. Place. 47 N. J. Eq. 477, 486 ; Steere v. Steere, 5 Johns. Ch. 1 ; Cook v. Barr,44 N. Y. 156; Dillaye v. Greenough, 45 N. Y. 438 (semble); Dyer's Appeal, 107 Pa. 446; Mc- Candless v. Warner, 2* W. Va. 754, 780. But see, contni, the language of the court in Kingsbury v. Burnside, 58 111. 310; Fast V. MePherson, 98 111. 496. But the facts in each of these cases disclose a trust arii+ing })y o])oralion of law. The tcnn.s of tlie tru-^t need not be contained in one document, but maybe collected from several papers, if connected either i)liysi(:illy or by reference of one to another, or if on their fare referring to the same tran.Haction. Kronhcim v. Johnson, 7 Ch. D. 60; Loring V. Palmer, UK U. S. 321 ; Tenncy r. Simpson, 37 K.as. 579. Indeed, by some modern ca-xcH the connection between separate papers may be shown l)y parol evidence. Oliver v. Hunting, 44 Ch. 1). 205. Si;/nntiire or Subscription. — The writing must bo signed ; it need not be subscribed. Morison »». TiiriK)nr, 18 Vos. 175 {smilih) ; Kronhr'im i;. Johnson, 7 Ch. I). 60, 67 ; Smith V. Ilowtil, 3 Stockt. 349 ; Ncwkirk v. Pi.ico, 47 N. J. Ecj. 477, 486. Except in jurisdictions where the statute in terms reqniies the writing to bo sulmcribcd, as iu California, Civ. Code (1«85), § 852 ; Colorado, Ccn. St. (1883), § 1515 ; Dakota, Comp. L. (1887), § 2795; Mabo, ]U;v. St. (1KH7), § fi()(i7 ; Michigan, 2 How. An. St. (1882), §6179; Minnesota, St. (1878), c. 41, tit. 2, f. 10; Montana, Comp. St. (1887), § 217, p. 651; Nebnuxka, C. S. (1887), c. 32, § 3; Nevada, Gen. St. (1885), § 2624; New York, 4 N. Y. Rev. St. (1889), 2589 ; Oregon, Hill's An. Laws (1887), 593, .594 ; Utah, Comp. L. (1888), § 3916 ; Wisconsin, S. & B. An. St. (1889), § 2.302. — Ed. 1 See supra, p. 70, n. 1. — Eu. 180 GARDNER V. ROWE. fciIAP. I. said term. It is admitted that, prior to this assignment, an act of bankruptcy had been committed by the said George Wilkinson, and that a commission of bankrupt was duly issued against him in the month of November, 1813 ; and the present bill is filed by the assignees of Wilkinson under that commission against J. Rowe and certain other persons claiming interest under him in the Wheal Regent Mine, for the purpose of having it declared that the lease of the Wheal Regent Mine is the property of the bankrupt. On the hearing of this cause the plaintiffs contended that it was established, by the evidence in the cause, that, at the time of the grant from Lord Mount Edgecumbe, it was the purpose of the bankrupt and J. Rowe that the bankrupt should hold the lease for his own benefit, and not as a trustee for J. Rowe ; and the plaintiffs further contended, as a point of law, that if in fact it had been the purpose of the bankrupt and J. Rowe, at the time of the grant from Lord Mount Edgecumbe, that the name of the bankrupt should be used as a trustee for J. Rowe, yet that such trust could not prevail, because there was no written declaration of trust within the Statute of Frauds other than the indenture of 24th August, 1813, which, being executed by the bankrupt after his bankruptcy, could not operate to defeat the claim of his assignees. It appeared to me at the hearing that I could not properly enter upon the consideration of this point of law without first coming to a con- clusion upon the fact, whether the name of the bankrupt was or not used in the indenture of January, 1812, as a ti-nstee for the defendant J. Rowe, and I directed an issue accordingly. At the trial of this issue, the jury found that the name of the bankrupt was used as a trustee for J. Rowe ; and a motion having been made before me by the plaintiffs for a new trial of that issue, I refused to disturb the verdict. The question which has now been mainly argued before me is, whether the indenture of the 24th August, 1813, having been executed by the bankrupt subsequent to his bankruptcy, can or not be received as against his assignees as a declaration of trust in writing. Upon a con- sideration of the several cases which have been referred to in the argu- ment, it does not appear to me that any authority has been produced which is directly in point. All the cases establish that a bankrupt cannot, by any act subsequent to his bankruptcy, transfer any interest from his assignees. Thus, a bankrupt cannot defeat the interest of his assignees by a power of appointment. Can the bankrupt be said to have any interest in this mine at the time of his bankruptcy? He might have recovered possession of this mine by force of his legal title ; ■ but he would then have recovered, not in respect of his interest, but by converting a statute, made for the prevention of fraud, into an instrument of his own fraud. It is not disputed that this deed of August, 1813, would have prevailed against the assignees, as a declara- tion of trust, if it had been executed before the bankruptcy. Yet a mere voluntary deed, executed before the bankruptcy, will not prevail against the assignees. This deed, therefore, in respect to the moral SECT. VIII.] GARDNER V. ROWE. 181 obligation on the trustee to give effect to his trust, would not, in such case, have been considered as a mere voluntary deed. If, in respect of the moral obligation affecting the trustee, this declaration of trust would have prevailed against the assignees if executed the day before the bankruptcy, without any other consideration, I cannot find a principle why it should not prevail against the assignees, if executed the daj' after the bankruptcy, especially when it is considered that a trust does not pass by assignment in the bankruptcy. For these reasons, I am of opinion that the indenture of 24th August, 1813, though executed after the bankruptcy, is a good declaration of trust in favor of J. Rowe, within the vStatute of Frauds. It has been slightly argued that the letters of the bankrupt do manifest a trust in writing within the Statute of Frauds ; and, further, that a trust in this case is to be im- plied from the fact that Rowe actually directed the working of the mine, and paid the expenses of it ; but I do not think it necessary to give any opinion on these points. The bill must therefore be dismissed, and witli costs.^ 1 Affirmed in 5 Russ. 258. Ambrose v. Ambrose, 1 P. Wms. 321 ; In Re Farmer/ 18 N. B. K. 207, 216 {semble) Accord. See also Smith v. Howell, 3 Stockt. 349. If the trustee of land under an oral trust, in recognition of his moral duty, couA-eys to the cestui f/ue trust or to his appointee, the conveyance cannot be impeached by the trustee's creditors. Gordon v. Tweedy, 71 Ala. 202; Van Dorn v. Leeper, 95 111. 35; P'irst Bank v. Kurtz, 22 111. Ap. 213 ; Cox v. Arnemann, 76 Ind. 210 ; Clark v. Rucker, 7 B. Mon. 583 ; Brown v. Lunt, 37 Me. 423 ; Pattou v. Chamberlain, 44 Mich. 5 ; Jamison v. Miller, 27 N. J. Eq. 586 ; Siemon v. Scharck, 29 N. Y. 598 ; Dygert t'. Remerschnider, 32 N. Y. 629 ; Foote v. Bryant, 47 N. Y. 544 ; Cramer r. Blood, 48 N. Y. 684 ; Norton v. Mallory, 63 N. Y. 434 ; Robbins i'. Robbins, 89 N. Y. 251, 257 ; Davis V. Graves, 29 Barb. 480 ; Baldwin i;. Ryan, 3 Th. & C. 251 ; Holden v. Burn- ham, 5 Th. & C. 195 ; Burdick v. Jackson, 7 Ilun, 488 ; Ocean Bank i'. Hodges, 9 Hun, ICl ; Powell V. Ivey, 88 N. Ca. 256; Sackctt v. Spencer, 65 Pa. 89 (but .see, cuntra, O'Hara v. Dil worth, 72 Pa. 397) ; Price v. Brown, 4 S. Ca. n. s. 144 (semhU) ; Hyde v. Chapman, .33 Wis. 391. But see, contra, Smith i'. Lane. 3 Pick. 205 ; Holmes v. Win- chester, 135 Mass. 299. (Compare, however, Bancroft v. Curtis, 108 Mass. 47, and Bush V. Boutelle [Massachusetts, 1892], 30 N. E. R. 607). In Hays v. Hegon, 102 Ind. 524 ; McVay v. McVay, 43 N. J. Eq. 47, 49 ; I'inney v. Fellows, 15 Vt. 525; ami Main v. Bosworth, 77 Wis. C60, the conveyance was allowed to .stand although made after the creditor of the trustee had obtained a judgment lien npon the land. But see, cmtra, Connor v. Follansbee, 59 N. H. 124 ; Dewey v. Dewey, 35 Vt. 555, 560 {sp.mUc) ; Skinner v. James, 69 Wis. 605. An riral contnu-t by a biuhelor to convey land, if performed after his marriage, deprives his wife of dower. Olilham v. Sale, 1 1$. M<>n. 76. A. contracts orally to convey certain land to B. Ho then contracts in writing to convey the same land to C. ; and finally convevH to B., who has notice of the written contract in favor of C B. may keep tlir- land. Dawson v. Ellis, 1 J. & W. 524 (se.mhir) ; Clarke r. Rucker, 7 B. Mon. .583, 585 {semble). A judgment against the cestui ifw trust under an oral trust attaches to the land Bubsequently conveyed to him. IJoyfl's Apj)., H2 I'a. 485. If the j)rinciy)al rase is sound, it would seem to follow that a postnuptial settlement in fnlfilmcnt of an f>ral ante-nnpti.'il atrrfemfut to settle specific property in considera- tion of the marriage, must be effectual agnin.st the settlor's creditors. And there is authority for this j)osition. Griffin v. Stanliope, Cro. Jac 454 ; Bevy's Cnno, 1 Vent. 193 (sembk); Lavender v. Black.stone, 2 Lev. 146, 147 (semble); Montacutc v. Max- 182 TIERXEY V. WOOD. [CHAP. I. TIERNEY V. WOOD. In Chancery, before Sir John Romilly, M.R., June 3, G, 27, 1354. [Reported in 19 ^eayan, 330.] In January, 1836, Alexander Wood purchased a house, a close of laud, and premises, situate at Little Hampton, iu Sussex, for the sura of £490. They were conveyed to the plaintiff Tierney in fee, who admitted he held them in trust for AVood. About the same time, Wood transferred a sum of stock into the plaintiff's name ; but by his direction tlie plaintiff afterwards sold it out, and delivered the proceeds of the sale to Wood. Soon after the purchase of the house, land, and premises. Wood delivered to the plaintiff a paper writing, signed by him, and dated January, 1837, in these words : " I hereby desire'that, after my death, the stock now in the Bank of England, with the house and land now belonging to me at Little Hampton, shall be held by you, as you at present hold it, for the benefit of my wife, Elizabeth Wood, during her life, and that after her death the same shall continue to be held by you as aforesaid, for the sole benefit of my daughter, Mary Wood, in such sort that it shall be wholly and entirely free from all control of any person with whom she may intermarry. I further desire that, in case my said daughter Mary should leave issue by any marriage which she may contract, the whole of the above property shall pass to such issue, in such manner as she may direct ; but that, in case she should die without issue, the whole of the above property shall be equally divided among the lawful issue of my son Alexander Wood, born after 1834, he to have the interest and profits arising from the property during his life. If my son should die without issue, I desire that all the property well, 1 Stra. 236, per Lord Macclesfield; Dundas v. Dutcns, 1 Ves. Jr. 196, 2 Cox, 235, per Lord Thurlow ; Shaw v. Jakeman, 4 East, 201, 207, per Lord Elleuborough ; wSur- come V. Pinniger, 3 DeG., M. & G. .571, 575, per L. J. Turner; Hussey v. Castle, 41 Cal. 239 ; Satterthwaite v. Emley, 3 Green, Ch. 489 ; Hall v. Light, 2 Duv. 358. There is, however, considerable authority to the contrary. Spurgeon v. Collier, 1 Eden, 55, per Lord Northington ; Kaudall i-. Morgan, 12 Ves. 67, per Sir W. Grant; Warden v. Jones, 2 DeG. & J. 76; Trowell v. Shewton, 8 Ch. l)iv. 318 {semtde); L'Estrange v. Kobiusou, 1 Hog. 202; Lloyd v. Fulton, 91 U. S. 479 {semhle) ; Andrews 1-. Jones, 10 Ala. 421 (semble) ; Winn v. Albert, 5 Md. 66, 2 Md. Ch. 169; Wood v. Savage, 2 Doug. (Mich.) 316; Manke v. Manke, 75 Mich. 435 {semhle); Reade v. Livingston, 3 Johns. Ch. 481 {semble); Borst «. Corey, 16 Barb. 136; Izard v. Izard, Bail. Eq. 228; Davidson ?;. Graves, Riley, Eq. 219; Smith v. Greer, 3 Humph. 118. The case of Warden v. Jones, supra, was decided largely on the strength of Sir W. Grant's dictum in Randall v. Morgan, supra, that a subsequent memorandum of the prior oral ante-nuptial agreement would not satisfy the Statute of Frauds. This dic- tum has been explicitly overruled. Barkworth v. Young, 4 Drew. 1,12. There is a vigorous and poiuted criticism of Warden v. Jones in 5 Jur. n. .s. (Part II.), 46. Fur- thermore, that case is hardly to be reconciled with the decision iu Ex parte Whitehead, 14 Q. B. Div, 419. — Ed. SECT. VIII.] TIERXEY V. WOOD. 183 may be sold, and the money be equally divided among my late brother's children now living at Old Craig," &c. " After the death of my wife, I wish my son Alexander to be paid £100 in money, or to be paid £5 a year during his life. If my son Alexander and my daughter Mary have both issue, let the property be equally divided among them ; if they have no issue, give ,£100 to such charity as Mr. Jones's at St. Leonards. Let my son have my books on gardening, my shirts, or any of my clothes that may be of use to him, if he desu-e to have them. " Alexander Wood. January, 1837. "To the Rev. M. A. Tiernet." Alexander "Wood, the elder, died in 1844, intestate, and the plaintiff allowed Mrs. "Wood, his widow,, to receive the rents of the premises, till her death in June, 1853. Alexander Wood, the son and heir at law of Alexander AVood the elder, and Mary Wood, the daughter, were living ; but the latter has never been married, and questions having arisen as to the rights of the parties interested in the property of Alexander Wood the elder, and as to the effect of the paper writing, the plaintiff instituted the suit to obtain the opinion of the court thereon. J/r. Eiddell, for the plaintiff. 3fr. Nichols, for Alexander Wood, the heir at law. Mr. Flemiufj, for the daughter Mary. The Master of the Rolls was of opinion that Mary Wood took an estate tail, l)ut reserved his judgment as to the validity of the declaration of trust. The Master of the Rolls. The question is, whether the document dated in January, 1837, created a good declaration of trust within the seventh section of the Statute of Frauds. That clause is in these words, or to this effect : That after the 24th of June, 1677, all declara- tion.s or creations of trusts, or confidences of anj' lands, tenements, or hereditaments, shall Ije mauife.st(;d and proved by some wi'iting, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect. The first question raised is, wliotlier Alexander Wood is the person who is by law enabled to declare tlie trusts of tliese lands. The second (piestion is, wlietlier, if lie be, this is a declaration of trust, and such a one as can be acted upon. There is no question Ijiit that on tlic purchase of this property by Alexander Wo(j(1, and the conveyance tliereof to tlie Rev. M. A. Tier- ney, a resulting trust arose in favor of Ahixander Wood, which, as it is expressly excepted by the eighth section of the Statute of Frauds, does not rcfjuire to be evidenced by any writing. In the year 1S3(5, there- fore, anil ])revious to the signing oi this document, the property in question was vested in M. A. Tierney, in fee, in trust for Alexander 13-4 TIERNEY V. WOOD. [CIIAP. I. Wood, in fee simple. Alexander "Wood, therefore, was the benefieial owner of this i)roperty, and Mr. Tierney had the mere naked legal interest in it. A distinction may be raised between the person who is , by law enabled to declare, and the person who is by law entitled to create the trnst. I consider, in the first place, who was by law entitled to create a trnst in this property ; and, first, I examine what, in such a state of things, would have been the effect of this document, so far as it relates to the stock, which had been transferred into the name of M. A. Tierney, if this had not been sold out afterwards by the direc- tion of Alexander Wood, and the direction to pay the dividends had been complied with by Tierney. The result would have been that the relation of trustee and cestui que trust between Tierney and the person mentioned in the instrument would have been completed, so far as that stock was concerned, and the fact that the document had been a volun- tary act on the part of Wood would not have prevented this court from acting upon it. The case of Ex jittrte Pye and Dubost, and the author- ities referred to in Bridge v. Bridge,^ decided by myself, establish this proposition. Those authorities show that the proper person to create the trust in personal property is the person in whom the beneficial interest of the property is vested ; and the trust being created by the beneficial owner, the trustee is bound, and, if disposed to refuse, may be compelled, to obey it. I am at a loss to find any reason which should cause this document to be effectual as a declaration of trust, so far as the stock is con- cerned, and not so, so far as the land is concerned. It is obvious that in both cases the person enabled by law to declare the trusts is the same. In the case before me, there can be no doubt that, if Mr. Tier- ney had, in pursuance of this paper, signed a document to the same effect, stating that he held the property on the trusts therein mentioned, the trusts would, apart from any question on the construction of the document, have been fully and completely declared ; and it is also clear, that if the trustee had declared that he held the property on any trusts not recognized or sanctioned by Alexander Wood, the beneficial owner, such declaration of trust woukl have been insufficient and un- availing, and would have given no interest to the supposed cestui que trust. A declaration of trust in writing by Tierney following that of Wood would therefore have been merely formal, and would have been valid only so far as it followed his instructions, and would have been void to the extent, if any, that it departed from his directions. I think that the fair conclusion to be drawn from these considerations is, that the person to create the trust, and the person who is by law ena))led to declare the trust, are one and the same ; and that, consequently, the beneficial owner is the person by law enabled to declare the trust. This is confirmed by the expression in the clause in the statute which relates to " the last will in writing," which can only apply to the bene- « 1 16 Beav. 315. SECT. VIII.] TIERNEY V. WOOD. 185 ficial owner. It may also be observed, that if the statute had intended that no trust should be valid, unless evidenced by a writing signed by the trustees, the simple and obvious course would have been to have so stated it; but the expression used is not "the trustee," but "the person by law enabled to declare the trust." That person is, I think, the beneficial owner ; and I am of opinion that, apart from any question of the construction of the document, the fact of its having been signed by Wood, the beneficial owner, transmitted by him to Tierney, the legal owner, and by him acted upon, constitutes it a sufficient decla- ration of trust within the seventh clause of the statute, so far as that clause requires it to be signed " by the party who is by law enabled to declare such trust." The next question is, whether the document itself, apart from the signature, is or purports to be a declaration of trust at all. It is con- tended that, if anything, it is a will imperfectly executed, that it con- tains no direction as to the present application of the rents, and that the rest of its contents savor of the directions contained in a will rather than of a direction how to apply the rents of the property ; for that it is not to take effect till after the death of Alexander Wood, and that it contains directions for sale and the like, inconsistent with the nature and duties of the trust which M. A. Tierney had accepted. There is, undoubtedly, some force in these observations ; but, on the whole, I think that this may be treated as a valid declaration of trust. Although it does not declare the whole trust, it declares the trust of a part, and it leaves the resulting trust untouched, except where it expressly inter- feres therewith. If this document had directed Mr. Tierney to pay the rent to Mr. Wood during his life, and had then proceeded as it does, this objection could not, in my opinion, have been sustained ; but this omission is not sufficient to destroy the character of the rest of the interest, which, unless where it otlierwise disposes of the beneficial interest in the property, leaves it untouched, under the resulting trust vested in Mr. Wood. I am of opinion, therefore, that a good trust was evidenced by tliis writing within tlie Statute of Frauds. The only remaining question is the interest which Mary Wood takes in the land so held in trust for her, and my opinion is that she takes an estate tail.* 1 Kronheim v. JohnHon, 7 Ch. D. GO Accnrd. — Ed. 186 DANSER V. WARWICK. [CUW. I. ELIZA A. DANSER v. WILLIAM WARWICK. In Chancery, New Jersey, before Hon. A. V. Van Fleet, V. C, October Term, 1880. [Reported in 33 New Jersey Eqiuti] Reports, 133.] On final hearing on bill, answer, and proofs taken before a master. Mr. George C. Beekvian, for complainant. Mr. Joel Parker., for defendant. The Vice Chancellor. The complainant is the widow of David C. Danser. She seeks to have a parol trust established and enforced against the defendant. She alleges that her husband, some months before his death, assigned the bond and mortgage in controversy to the defendant, upon a parol trust or understanding that he would forth- with, or by a short day, transfer them to her. The transfer to the defendant was intended to be merely a step in vesting her with title. The assignment to the defendant bears date February 1st, 1875, and Danser died on the 13th day of the following September. The bond and mortgage were in Danser's possession at the time of his death, and have since then been constantly in the possession of the com- plainant. The defendant has never asked for them, nor attempted to get possession of them. A month or six weeks prior to Danser's death, the defendant directed an assignment to be drawn to the com- plainant, stating to the person to whom he gave the direction that he must draw it for Danser, who would pay him. He, at the same time, said it was right that the old lady — referring to the complainant — ■ should have the bond and mortgage. Dauser, at this time, was pros- trated by the disease which shortly afterwards caused his death. The defendant did not remain to execute the assignment, but said he would return soon and do so. He did not return that day. He was subse- quently informed, on two or three different occasions, while Danser was living, that the assignment had been drawn and was ready for execution. On each occasion he said he had forgotten or neglected to execute it, but would call soon and do so. He never fulfilled his promise. Two or three weeks after Danser's death, he called for the assignment Danser had made to him, and which he had left when he gave dii'ection for the draft of the one to the complainant, and stated that he meant to do what was right about the matter, but he would not execute the assignment to the complainant until things were fixed up ; Danser owed him. He took both papers and has never executed the assignment to the complainant. This narrative comprises only those facts which are not disputed by either party. The defendant denies -that the mortgage was transferred to him sub- •ject to a trust, but says, on the contrary, that the assignment was made to satisfy a promissory note he held against Danser, upon which SECT. VIII.] DANSER V. WAEWICK. 187 there was due 82,000 of principal, and a year and six or seven mouths' interest. His explanation of the preparation, by his direction, of an assignment to the complainant is this : he says, some time after the execution of tlie assignment to him, he ascertained that the person who made the mortgage had no title on record for the mortgaged premises ; that he went at once to Danser and told him he had swin- dled him, and that if he did not take the mortgage back he would make him. He says that Danser replied that the mortgagor's title was all right, but if he was dissatisfied, he would pay him his debt, or give him another security, and he could then reassign the mortgage. He further says that it was ultimately arranged that Danser should have two mortgages, which were then liens on his lands, cancelled, and execute a mortgage thereon to him, and he was then to assign the mortgage in controversy to the complainant. He says it was after this scheme had been agreed upon that he ordered the assignment to the complainant to be drawn. These statements present the question of fact to be decided. The counsel of the defendant, however, insists that, as a matter of law, the bill in this case must be dismissed, regardless of what the evidence demonstrates the truth to be in respect to the trust alleged, his con- tention being that the trust set ap by the complainant is one which cannot be established except by written evidence. The trust, it will be observed, affects personal property, and not lands. The subject of it is a debt. That part of the .Statute of Frauds wliich enacts that all declarations and creations of trust shall be manifested by writing and signed by the party creating the same, or else shall be void and of no effect, applies only to trusts of lands, and has no application to trusts of personal property.^ A valid trust of personalty may be created ' Fane v. Fane, 1 Vern. 31 {semble) ; Bayley v. Boulcott, 4 Russ. 346 (semble) ; Hawkins v. Gardner, 2 Sm. & G. 441, 451 ; Peckham v. Taylor, 31 Beav. 2.'50; Grant V. Grant, 34 Beav. 023, 025; Allen v. Withrow, llOU. S. H!», 129; Cral.l) v. Tlionia.s, 2.5 Ala. 212, 215; Ilellman v. McWilliams, 70 Cal. 449; Kirkpatrick v. Davidson, 2 Ga. 297 ; Hon v. Hon, 70 Ind. 135 ; Collins v. Gibson, 29 Iowa, 61 ; Cobb v. Knif^ht, 74 .Me. 253; Chaj^e v. I'crlcy, 148 Ma.'fs. 289; Catlin i;. Birchard, 13 Mirh. 110; Bost- wick V. MahafTy, 48 Mich. 342 ; Kramer o. McCaugley, 11 Mo. Ap. 420; Kinil)all v. Morton, 1 Ilalst. Ch. 26 ; Hooper v. Holmes, 3 Stockt. 122 ; Day v. Hotii, 18 N. Y. 448 ; Gadsden v. Whalcy, 14 S. Ca. 210; Harris v. Union Bank, 1 Cold. 152; Porter v. Kullarid Bank, 19 Vt. 410, 419 Accord. Similarly, if the grantee of land upon an or.al trust converts tlie land into per- sonalty and admits orally that he holds the personalty upon the original trust, he is of course ehargealde. Caldcr v. Moran, 49 Mich. 14 ; Tracy v. Tracy, 3 Bnidf. 50 ; Mallit V. liynd, 69 Pa. 380; Kverliart's Ajij)., 100 I'a. 349; Hess's App. 112 Pa. 108. An oral agreement by A. to hoM land in trust for B., and to pay him the proceeds in caae of a sale, is within the statute. But an oral agreement by the grantee hohl- ing under an oral trust simply to pay the cpsini ifur trust the j)rocceds in case of sale, is not within the statute, and may be enforced if supported by a valid consideration. Mohn V. Mohn, 112 Ind. 295; Thomas r. Mowry, 113 Ind. 83. Chattels Ue.vi. arc of course wiihin tiie Bt.atutc. Skctt v. Whitmore, Freem. Ch. 280; Kiddle v. Emerson, 1 Vern. 108; Bellasia v. Compton, 2 Vern. 294 ; Ilutchins V. Leo, 1 Atk. 447. — Eu. 183 DANSER V. WArvWICK. [CHAP. I. vcrliall}'. fiiul proved bj' parol evidence. A trust of personal property, almost precisely like the one under consideration, and which had been created by mere spoken words, and was supported by only parol evi- dence, was upheld by Chancellor Williamson in Hooper v. Holmes ; ^ also Kimball i'. Morton,''^ Sayre v. Fredericks,* and Eaton v. Cook;* 2 Story's Eq. Jur. § \)12 ; 1 Perry on Trusts, § 86. A valid trust of a mortgage debt may be created by parol ; for, though a trust thus created cannot embrace the land held in pledge, yet it is good as to the debt, and will entitle the cestui que trust to sufficient of the pro- ceeds of sale, when the land is converted into money, to pay the debt.^ Sayre v. Fredericks,* Benbow v. Towusend," and Childs v. Jordan.^ It must be held, then, that the trust alleged in this case is valid, and, if it has been sufficiently proved, the complainant is entitled to have it established and enforced.* There must be a decree establishing the trust, and requiring the defendant to execute it. The defendant must pay costs. 1 3 Stockt. 122. 2 1 Hal. Ch. 26. « 1 C. E. Gr. 205. 4 10 C. E. Gr. 55. 5 Bellasis v. Compton, 2 Vern. 294 ; Benbow v. Towusend, 1 M. & K. 510 (semble) ; Pattenson v. Mills, 69 Iowa, 755 ; Childs v. Jordan, 106 Mass. 321 ; Buckliu v. Bucklin, 1 Abb. Ap. 242, 1 Keyes, 141, s. c. ; Bunn v. Vaughan, 1 Abb. Ap. 253 ; Robblns v. Robbins, 89 N. Y. 259 Accord. — Ed. 6 1 M. & K. 506. 7 106 Mass. 321. 8 The Court found the facts in favor of the complainant. So much of the opinion as relates thereto is omitted. — Ed. SECT. IX.] JUNIPER V. BATCHELOR. 189 SECTION IX. The Statute of Wills. JUNIPER V. BATCHELOR. In Chancery, before Sir G. M. Giffard, V. C, June 26, 1868. [Reported in Weekly Notes (1868), 197.] Charles Juniper, by a will dated tlie 14tli of March, 1864, devised and bequeathed all his real and personal estate to W. Batchelor, T. Batchelor, T. Caffyn, and T. B. Penfold, their heirs, executors, admin- istrators, and assigns, absolutely, as tenants in common, devised to them all the estates vested in him as trustee and mortgagee, and ap- pointed them his executors. On the 20th of January, 1866, he made his last will in substantially the same terms, but in favor of the said W. Batchelor and T. Batchelor, J. Burster (instead of T. Caffyn), and the said T. B. Penfold. On the 6th of June, 1866, he died, and his will was proved by T. Batchelor, Burster, and Penfold only. Shortly after his death a tin box was found soldered up, in which, when opened, were discovered four letters, purporting to be signed by the testator, all dated the 14th of March, 1864, and in the same terms, and ad- dressed to W. Batchelor, T. Batchelor, T. Caffyn, and T. B. Penfold respectively. Each letter was to the effect that the writer wished the person addressed to retain for liimself out of the estate £200, and that, after payment of succession and legacy duties and expenses, the surplus which would be realized by public auction sale of his estate should be givf-n to tlie Sussex County Hospital, Brighton. The bill was filed by the heir at law and customary heir of the testator, alleging that the real and personal estate was devised to the four devisees on a concealed trust for charitable purposes, which they promised and agreed to per- form, and prayed for a declaration that the devise and bequest might be declared void, or that tlic devisees might be declared trustees for the plaintiffs, and might be decreed to convey and surrender the same. T. Batchelor said lie agreed to be the testator's executor, but the tes- tator said nothing to him about the disposition of his property. Burster said the same, and that the testator said something about letters, but he (r.nrstfr) did not know what Ik; )neant. Testator said lie had quar- relled with Caffyn. Tenfold said lie promised to be the testator's executor, and testator said "there would be letters found," but did not explain what he meant. On the 12th of July, 1866, the testator's real and personal estate was conveyed by the four trustees to a trustee for the three who had proved the will. 190 JUNIPER V. BATCIIELOR. [CHAP. I. J^^^l/i Q' C., and Ince, for the plaiutifTs. Druce, Q. C, and G. N. Colt, for the defendants, the devisees, and Wickens for the defendant, the Attorney General, were not called upon. The Vice Chancellor said he did not think the communications had gone far enough to bring the case within the authorities which had been cited. The testator asked these devisees to be his executors. They said they would. Nothing intelligible was said about letters ; nothing about the will of the testator ; nothing about his intention. If there had been no letters, it was conceded that the devisees would have been entitled. Then how could it be contended that they made any differ- ence, if they were not communicated in some shape or form to these persons? Some knowledge must be made out of the testator's inten- tion, sufficient to have made it a fraud for these devisees to retain the property. Nothing of that kind had been established; and the bill must be dismissed with costs. ^ 1 Adlington v. Cann, 3 Atk. 141, 151 ; Muckleston v. Brown, 6 Ves. 52, 62-63 (explaining Bishop v. Talbot, 6 Ves. 60, cited) ; Wallgrave v. Tebbs, 2 K. & J. 313; Tee V. Ferris, 2 K, & J. 357 ; Irvine v. Sullivan, 8 Eq. 673 ; Schultz's App., 80 Pa. 396 Accord. The dicta contra in Fane v. Fane, 1 Vern. 30, and Boson v. Statham, 1 Eden, 514, are not law. On the other hand, extrinsic evidence that a gratuitous deed was not intended to benefit the grantee, although not communicated to the grantee, is competent to turn him into a constructive trustee for the grantor. Birch v. Blagrave, Amb. 264 ; Chil- ders V. Childers, 1 DeG. & J. 482. But see, contra, Todd v. Munson, 53 Conn. 579. — Ed. SECT. X.1 FOSTER V. ELSLEY. 191 SECTION X. The Subject Matter of a Trust. FOSTER V. ELSLEY. In the High Court of Justice, Chancery Division, December 13 1881. [Reported in 19 Chancery Division, 518.] George May Upfield, by his will, dated the 31st of October, 1879, 'after appointing the defendants his executors and trustees, devised and bequeathed to them all his real and personal estate upon the trusts therein set forth, and the will contained the following clause: " And I declare that my solicitor, William Edward Foster " (the plaintiff) , " shall be the solicitor to my estate and to my said trustees in the management and carrying out the provisions of this my will." The testator died on the 3d of November, 1879, and his will was subsequently proved by the defendants, who, in pursuance of the direc- tions contained in the will, employed the plaintiff as their solicitor in the management of the trust estate up to the 13th of October, 1881, when he received a letter from certain solicitors at Oldham stating that they were instructed by the defendants to ask for the immediate deliv- ery of all deeds, documents, and securities in his possession, relating to the estate of the testator, and also an account of costs due to the plaintiff, and also for an appointment for them to attend at the plain- tiff's oflice and pay such costs, and receive the documents. This was a motion by the plaintiff to restrain the defendants from employing any person other than the plaintiff as solicitor to the estate of the testator, or in any business relating to the management or carrying out of the provisions of his will. Dnnflas Gardiner^ in support of the motion. The testator has thought fit to appoint Mr. Foster solicitor to his estate and to his trus- tees, and they cannot, I submit, arbitrarily remove him from the oflice, nothing being charged against him in the discharge of his duties. I rely upon Williams v. Corljct* and Ilibbert v. IIibl)ert.^ //ice, (.1- C, and Hamilton Ilumphrci/s, for tlic defendants, were not called ui)on, but referred to Shaw v. Lawless,^ and Finden v. Stephens.* CniTTY, J. The testator in this case has inserted a clause in his will that " my solicitor, W. E. Foster, shall be the solicitor to my es- 1 8 Sim. .349. 2 3 T\fpr. 681. » 5 CI. &F. 129. » arh. 142. 102 GRAVES V. GRAVES. [CHAP. I. tate auil to my said trustees iu the management and carrying out the provisions of this my will," and this motion is founded on the propo- sition that this clause imposes on his trustees the duty of employing this gentleman (the plaintiff) as their solicitor. In Finden v. Stephens, to which I liave been referred, the direction was that a certain person should be employed as agent and manager of the testator's estates whenever his trustees should have occasion for the services of a person in that capacity, and it was held that the direction did not create a trust which such person could enforce. The case of Shaw v. Lawless, iu the House of Lords, had previously decided the question. I am told that no case is to be found iu the books like the one before me where a testator has appointed a particular person as solicitor to his estate, but in analogy to the cases to which I have referred I decide that the direction in this will imposes no trust or duty on the trustees to continue the plaintiff as their solicitor, and that being my decision I refuse this motion with costs.^ GRAVES V. GRAVES. In Chancery, Ireland, before Brady, C, May 8, 1862. [Reported in 13 Irish Chancery Reports, 182.] "William Graves, by his will, devised certain real and personal property to trustees upon trust, amongst other things, to pay to his wife an annuity of £100 a year for life, in addition to her jointure, and also to pay to his sister an annuity of ^50 a year for life. The will then contained the following passage : " And I do hereby declare it to 1 Shaw V. Lawless, 5 CI. & F. 129 ("And it is also my particular desire, that my said executurs, whilst acting in the management of all or any of my affairs under this my will, . . . shall continue the said B. E. L. in the receipt and management of my said rents, ... at the usual fees allowed to agents, he having acted for me since I became possessed of said estate fully to my satisfaction "). Finden v. Stephens, 2 Phill. 142 ("And inasmuch as my estates and property will require more management than I can expect of my trustees personally to bestow, it is my wish and desire that T. F in whose judgment and integrity I place great confidence, be appointed for all purposes for which they or he, my trustees and trustee may have occasion for an agent, receiver, or manager of all or any of my estates and property") Accord. But see, contra : ^ Hibbert v. Ilibbert, 3 Mer. 681 (Testator devised to trustees and directed that his friend A. H. should be appointed receiver of his real and personal estates, adding that he made that appointment for the sake of benefiting A. II. in a pecuniary point of Wew). Williams V. Corbet, 8 Sim. 349 (Testator devised to trustees and appointed plaintiff to be the auditor of the accounts of his estates during the execution of the trust of bis will, and directed his trustees to pay to the plaintiff the customary remuneration for such services). — Ed. SECT. X.] GRAVES V. GRAVES. 193 be my earnest wish that my said sister shall reside at Gravesend with my dear wife during her life." The testator devised his house at Gravesend, with the household furniture, &e., to his wife for life. Mr. Graves died in 1853. Misunderstandings having arisen between Mrs. and Miss Graves, they, in 1853, ceased to live together; and the petition in this cause was filed by Miss Graves, praying a declaration of her right to reside at Gravesend during her life, and to be boaxded by Mrs. Graves. Mr. Warren and Mr. Dames^ for tlie petitioner. Mr. Brewster and 3fr. A. Henderson^ contra.^ The Lord Chancellor. There can be no doubt that an expression of the testator's wish may attach on the property devised by him, and may be enforced by this court ; but we are always bound to consider the subject matter to be effected, and to see what the testator really intended to be done. Had this expression of wish been attached on any property, as upon a house, it would be one thing ; as, if he had said, " I wish that my sister should reside in my house at Gravesend," it might be said that this gave her a right to have a portion of the house allotted to her. Those, however, are not the words of the present will, which says, " I declare it to be my earnest wish that my said sister shall reside at Gravesend with my dear wife during her life." What does that mean? It means, if anything, that they should reside together. He intends, with respect to both, for the sake of mutual society and comfort, that they should pass their lives together. I should hesitate long before saying that this was a trust which this court would enforce. The right of maintenance is given up ; but if it were not, could tiiis court be called on to say which was riglit and which was wrong, in their mis- understanding, or to say that they were to be compelled to spend their time together? The will, however, in my opinion, does not point to residence as property in the house, but to residence with Mrs. Graves as a meml)cr of her family. I cannot give an equivalent. An equiva- lent would destroy a part of tlie bequest, the intention of which was to give to each from the other the Ijenefit of society and intercourse. I cannot say that a residence, or payment for one, would be an equiva- lent; and if these ladies cannot agree to live together on friendly terms, I cannot compel thero.* * The argnments of counsel are omitted. — Ed. I 2 Sff! Dawkin v. Penrliyn, 4 Ajij). Ca.s. 51. Real cHtatc forms the Hpccific ns in most trusts. Bnt personal property may, of course, l^e held in trust a« freely as land ; and choses in action as well as choscs iu pos- session. Flotfher v. Fletcher, itupra, f.O, ii. 2 ; Williams v. Codriiigton, 1 Vcs. Kr. !y\A ; Clough V. Lamhert, 10 Sim. 174; Murray v. I'lavcll, 2:> Ch. Div. HI). 102; KIdridge v. Turner, 11 Ala. 1049; Gordon v. Small, M Md. .'j.'50 ; Danser v. Warwick, supra, 186, 188; Cummins v. Barkalon, 1 Ahh. Ap. 473 ; Fogg v. Middlctcm, sujirn, 65. I'urely personal rights cannot lie held in trust; e.g. a jieerage, an office, and the like. Biickhurst I'eerago, 2 App. Cas. 1 ; 1 Gray, Casas on Tropcrty, Chap. IV. On grounds of public policy there are a few exceptions to the rule that whatever 13 19-4 GRAVES V. GRAVES. [CIIAP. I. may lie tr.insfcrrcil may bo the subject of a trust ; e. g. a homostoaJ entry : Clark V. Kayley, 5 Oreg. 343. Au improvement right: Smith v. Oliver, 11 S. & R. 257. Formerly the registered owner of a ship under the English Registry Acts could not be au e.\press trustee of tJie ship. Ex parte Yallop, 1.") Ves. 60; Ex parte. Houghton, 17 Ves. 231 ; Camden v. Anderson, 5 T. K. 709; altliough in case of fraud he miglit be a constructive trustee. Holderness v. Lamjjort, 29 Bcav. 129. At the pre.seut day, however, a registered ship may be the subject of a trust ; but the trust cannot be registered. Chasteauueuf v. Capeyron, 7 App. Cas. 127. The same rule ai)j)lies to patents : Edmunds, Letters Patent, 503. Trade marks : Sebastian, Trade Marks (3d ed.) 108. Shares in English companies : Buckley, Companies Acts, (6th ed.) 85-87. — Ed. / J \ \ SECT. XI.] MOlilCE V. THE BISHOP OF DURHAM. 195 SECTION XI. The Cestui que Trust. MORICE V. THE BISHOP OF DURHAM. In Chancery, before Lord Eldon, C, March 18, 20, 1805. [Reported in 10 Vesei/, 521.] This cau&e came ou iipou an appeal by the defendant, the Bishop of Durham, from the decree of the Master of the Rolls, Ann Cracherode, by her will, dated the 16th of April, 1801, and duly executed to pass real estate, after giving several legacies to her next of kin and others, some of which she directed to be paid out of the produce of her real estate, directed to be sold, bequeathed all her personal estate to the Bisliop of Durham, his executors, &c., upon trust to pay ber debts and legacies, &c. ; and to dispose of the ulti- mate residue to such objects of benevolence and liberality as the Bishop of Durham in his own discretion shall most approve of ; and she appointed the Bishop her sole executor. The bill was filed by the next of kin to have the will established except as to the residuary bequest, and that such bequest may be declared void. The Attorney General was made a defendant. The Bishop, by his answer, expressly disclaimed any beneficial interest in himself personally.^ Mr. liidiarda and Mr. Martin, in support of the appeal. The Attorney General (Hon. Spencer Perceval) and Afr. Mitfordt against the decree.'' 'I'liK Lord Chancellor (Eldon). This, with the single exception of Brown v. Yeall,^ is a new case. The questions arc, 1st, Whetlior a trust was ititcnded to be created at all? 2(lly, Wlietlier it was elTect- ually created? Sdly, If ineffectually created, whether the defendant, the Bishop of Durliam, can, according to the decisions, and upon the authority of those decisions, lake this property for his own use and benefit. Ah to tlie last, I uudcrslnnJ a doubt has been raised in the dis(.'UHsion of some (piestion bearing analogy to this in another court, — how far it is competent to a testator to give to his friend his personal estate, to apply it to such purposes of bounty not arising to trust as the testator himself would have l)een likely to apply it to. That ques- tion, as far as this court has to do with it, depends altogether u[)on this : iff the testator meant to create a trust, and not to make an abso- ' The fltatpmont of tacta ih taken from the roport of the case iu 9 Vcs. 3'J'J. '■* The arf^meuLs of counsel are oinittoU. — Eu. 8 7 Ves. .50. a. 196 MORICE V. THE BISIIO? OF DURHAM, [CHAP. L lute gift, but the trust is iueffcctuall} created, is not expressed at dl, or fails, the next of kiu take. On the other baud, if the party is to take himself, it must be upon this ground, according to the authori- ties, — that the testator did not mean to create a trust, but intended a gift to that person for his own use and benefit ; for if he was intended to have it entirely in his own power and discretion whether to make the application or not, it is absolutely given, and it is the effect of his own will and not the obligation imposed by the testament : the one inclining, the other compelling, him to execute the purpose. But if he cannot, or was not intended to, be compelled, the question is not then upon a trust that has failed, or the intent to create a trust ; but the will must be read as if no such intention was expressed or to be discovered in it. Pierson v. Garnet,' and the other cases of that class, do not bear upon this in any degree ; for the question, whether a trust was in- tended, arose from two or three circumstances, which must all concur where there is no express trust. Prima facie an absolute interest was given, and the question was, whether precatory, not mandatory, words imposed a trust upon that person ; and the court has said, before those words of request or accommodation create a trust, it must be shown that the object and the subject are certain ; and it is not immaterial to this case that it must be shown that the objects are certain. If neither the objects nor the subject are certain, then the recommenda- tion or request does not create a trust ; for of necessity the alleged trustee is to execute the trust, and, the property being so uncertain and indefinite, it may be conceived the testator meant to leave it entirely to the will and pleasure of the legatee, whether he would take upon himself that which is technically called a trust. Wherever the subject to be administered as trust property, and the objects for whose benefit it is to be administered are to be found in a will, not expressly creating trust, the 'indefinite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the court as evidence that the mind of the testator was not to create a trust ; and the difficulty that would be imposed upon the court to say what should be so applied, or to what objects, has been the foundation of the argument that no trust was intended. But the principle of those cases has never been held in this court applicable to a case where the testator himself has expressly said he gives his property upon trust. If he gives upon trust, hereafter to be declared, it might perhaps originally have been as well to have held that, if he did not declare any trust, the person to whom the property was given should take it. If he says he gives in trust and stops there, meaning to make a codicil or an addition to his will, or, where he gives upon trusts which fail, or are ineffectually expressed, in all those cases the court has said, if upon the face of the will there is declaration plain that the person to whom the property is given is to I 2 Bro. C. C. 38, 22G. SECT. XI.] MOKICE V. THE BISHOP OF DURHAM. 197 take it in trust ; and, though the trust is not declared, or is ineffect- ually declared, or becomes incapable of taking effect, the party taking shall be a trustee ; if not for those who were to take by the will, for those who take under the disposition of the law. It is impossible, therefore, to contend that, if this is a trust ineffectually expressed, the Bishop of Durham can hold for his own benefit. I do not advert to what appears upon the record of his intention to the contrary, and his disposition to make the application ; for I must look only to the will, without any bias from tlie nature of the disposition, or the tem- per and quality of the person who is to execute the trust. The next consideration is, whether this is a trust effectually de- clared ; and, if not as to the whole, as to part. I put it so ; as it is said, if the word "benevolence" means charity, and "liberality*' means something different from that idea, which in a court of justice we are obliged to apply to that word " charity" (and, I admit, we are obliged to apply to it many senses not falling within its ordinary sig- nification), there is a ground for an application in this case partially, if it cannot be wholly, to charity. It does not seem to me upon the authorities, particularly the Attorney General v. Whorwood,' that the argument for a proportionate division, or a division of some sort, would be displaced. I take the result of that case to be that the sub- stratum of that charity failed, and all those partial dispositions that would have been good charity if not connected with that, failed to- gether with it. It has been decided upon that principle, that, though money may be given to an infirmary or a school, yet, if that bequest is connected with a purpose of building an infirmary or school, and the money is then to be laid out upon it so built, the purpose, which is the foiindation, failing, the superstructure must fail \vith it. The Attorney General v. Doyley^ is almost the only case that has been cited for a proportional division. The testator expressly directed the trustees to dispose of his estate to such of his relations, of his mother's side, who were most deserving, and in such manner and pro- portions as they should tliink fit, to such charitable use as tlioy should think most proper and convenient; and the court, which has taken strong lilierties upon this subject of charity, though the manner and proportion were left to certain individuals, held that equality is equity, and there should be an equal division ; but it is expressly declared that those who took were persons who could take under a ho([U('st to charitabh) uses, and there was no dilliculty in that case in saying, tliose words must be construed according to the habit and allowed authori- ties of the court. The (»nly case decided upon any principle that can govern thia is Brown r. Yeall,' whicii applies slrongly. I do not trust myself with the question whether the principle was well applied in tiiat instance, ' 1 Ves. 5.34; Grieves v. Coho, 1 Vcb. 54S and n., 5.'j4. ' 4 Via. 48.') ; 2 Eq. Ca. Ab. 184. Stated from the llcgiater'a book, in the note^ 7 Ves. 58. » 7 Ves. 50, n. 198 MOUiCE V. THE BISHOP of Durham. [chap. i. but the decisiou furnishes a principle which the court must endeavor well to npi)ly in cases that occur. I do not hesitate to say I entertain doubt, not of the principle upon wliich that case was decided, but whether it was well ai)plied in tliat instance. Mr. Bradley was a very able lawyer, yet he mistook his way, as Serjeant Aspinall had not long before. Mr. Bradley gave a great portion of his fortune to accumulate for many years, and, meaning that it should be disposed of to chari- table purposes, constituted a fund, expressly stating tbat his purpose was a charitable purpose, and confirming that by directing that chari- table purpose to be carried on, as to the mode of executing it, by that court which, according to the constitution of the country, ordinarily administers property given to charitable uses. In his opinion, there- fore, independent of particular authority, there was a principle, sug- gested by all otlier cases of trust, that if a trust was declared in such terms that this court could not execute it, that trust was ill declared, and must fail, for the benefit of the next of kin. The principle upon which that trust was ill declared is this. As it is a maxim that the execution of a trust shall be under the control of tlie court, it must be ^f !JU(ih i t uiiiiu ' ii Lh'iL 11 (iuii by iiudyr ih ti i (■onii ' bi, ^ 6 ihiiL IM tWUnm- istratiou of it can be reviewed by the court ; or, if the trustee dies, the court itself can execute the trust ; a tr ust, therefore, which, iu the case o! mulildllllUiijLl'iiUbn, could be retormecT, 'and a due administration d?* rected, and then, unless the subject and the objects can be ascertained upon principles familiar in other cases, it must be decided that the court can neither reform maladministration nor direct a due adminis- tration. That is the principle of that case. Upon the question whether that principle was well applied in that instance, different minds will reason differently. 1 should have been disposed to say that, where such a purpose was expressed, it was not a strained construction to hold that the happiness of mankind intended was that which was to be promoted by the circulation of religious and virtuous learning ; and, the testator having stated that to be the charitable purpose, which un- questionably was so, the distribution of books for the promotion of religion, the court might have so understood him ; and the testator having not only called it a charitable purpose, but delegated the exe- cution to this court, ought to be taken to have meant that. Upon these grounds in a subsequent case. The Attorney General v. Stepney,^ as to the Welch charities, it appeared to me too much, con- sidering the Society in this country for the Propagation of the Gospel, «&c., to say a trust for the circulation of bibles, prayer-books, and other religious books was not good. Then, looking back to the history of the law upon this subject, I say, with the Master of the Rolls, that a case has not been yet decided in which the court has executed a chari- table purpose, unless the will contains a description of that which the law acknowledges to be a charitable purpose, or devotes the property to purposes of charity in general. Upon those cases in which the will 1 10 Vee. 22. SECT, XI.] MORICE V. THE BISHOP OF DURHAM. 199 devotes the property to chai-itable purposes, described, observation is unnecessary. "With reference to those in which the court takes upon itself to say it is a disposition to charity, where in some the mode is left to individuals, in others individuals cannot select either the mode or the objects, but it falls upon the king, as parens patrice, to apply the property, it is enough at this day to say, the court, by long habitual consti'uction of those general words, has fixed the sense ; and, where there is a gift to charity in general, whether it is to be executed by individuals selected by the testator himself, or the king, as pa?*e7is patrice, is to execute it, (and I allude to the case in Levinz, The At- torney General v. Matthews,*) it is the duty of such trustees on the one hand, and of the crown upon the other, to apply the money to charity in the sense which the determinations have affixed to that word in this court ; viz. either such charitable purposes as are expressed in the statute (43 Eliz. c. 4), or to purposes having analogy to those. I be- 'ieve the expression " charitable purposes," as used in this court, has been applied to many acts described in that statute, and analo- gous to those, not because they can with propriety be called charitable, but as that denomination is by the statute given to all the purposes described. The question, then, is entirely whether this is according to the in- tention a gift to purposes of charity in general as understood in this court ; such that this court would have held the Bishop bound, and would have compelled him to appl}^ the surplus to such charitable pur- poses as can be answered only in obedience to decrees where the gift is to charity in general ; or is it, or may it be according to the intention, to such purposes, going beyond those partially or altogether which the court understands by "charitable purposes"; and, if tnat is the in- tention, is the gift too indefinite to create an effectual trust to be here executed? The argument has not denied, nor is it necessary, m order to support this decree, that the person created the trustee might give the property to such charitable uses as this court holds charitable uses within the ordinary meaning. It is not contended, and it is not neces- sary, to support this decree, to contend, that the trustee might not consistently with the intention have devoted every shilling to uses in that sense charitable, and of course a part of the property. But the true (jucstion is, whether, if upon the one luuul he might have devoted the wliole to purposes in this sense charitable, he might not equally according to tlic intention have devoted the whole to purposes benevolent and li))eral, and yet not within the meaning of charitable purposes as this court construes those words ; and, if according to the intention it was competent to him to do so, I do not approliond that und(;r any authority upon such words the court could have charged him with maladministration, if he had applied the whole to purposes, which, according to the meaning of the testator, are be- nevolent and liberal, though not acts of that species of benevolcnca i -2 Lev. 167. 20J MOUICE V. THE BISHOP OF DUllIIAM. [CIIAP. 1. and liberality which this court in the construction of a will calla charitable acts. The question, therefore, resolves itself entirely into that ; for I agree there is no magic in words, and if the real meaning of these words is charity or charitable purposes, according to the technical sense in wliicli those words are used in this court, all the consequences follow ; if, on the other hand, the intention was to describe anything beyond that, then the testator meant to repose in the Bishop a discretion, not to apply the property for his own benefit, but that would enable him to apply it to purposes more indefinite than those to which we must look, considering them purposes creating a trust ; for, if there is as much of uidefinite nature in the purposes intended to be expressed, as in the cases to which I first alluded, where the objects are too uncer- tain to make recommendation amount to trust by analogy, the trust is as ineffectual, — the only difference being, that in the one case no trust is declared, and the recommendation fails, the objects being too indefinite ; in the other the testator has expressly said it is a tru^Jt, and the trustee consequently takes, not for his own benefit, but for pur- poses not sufficiently defined to be controlled and managed by this 30urt. Upon these words much criticism may be used. But the question is, whether, according to the ordinary sense, not the sense of the passages and authors alluded to, treating upon the great and extensive sense of the word " charity," in the Christian religion, this testatrix meant by these words to confine the defendant to such acts of chanty or charitable purposes as this court would have enforced by decree, and reference to a master. I do not think that was the in- tention ; and, if not, the intention is too indefinite to create a trust. But it was the intention to create a trust, and the object being too indefinite has failed. The consequence of law is, that the Bishop takes the property upon trust to dispose of it as the law will dispose of it, not for his own benefit or any purpose this court can effectuate. I think, therefore, this decree is right. The decree was affirmed} 1 James v. Allen, 3 Mer. 17 (semh/e) ; Ommaney v. Butcher, T. & R. 260 ; Fowler v. Garlike, 1 Russ. & M. 232 ; Williams v. Kershaw, 5 CI. & F. Ill (semble) ; Harris v. T)\x Pasquier, 26 L. T. Rep. 689; Leavers v. Clayton, 8 Ch. D. 589; Adye v. Smith, 44 Conn. 60; Taylor r. Keep, 2 Brartw.368 ; Chamberlain v. Stearns, 111 Mass. 267 ; Nichols v. Allen, 130 Mass. 211 Accord. In a few of our States trusts for charity, where tlie property is not given to a char- itable corporation duly authorized to administer the trust, must be as specific in regard to the beneficiary as private trusts. In these States, too, the doctrine of Morice v. Bishop of Durham has been recognized, with the lamentable result that the court will not permit a willing trustee to carry out the beneficent purpose of the testator. Hughes V. Dailey, 49 Conn. 34 ; Gambel v. Trippe (Md., 1892), 23 Atl. R. 461 ; Meth- odist Church V. Clark, 41 Mich. 730; Little v. Wilford, 31 Minn. 173; Altvater v. Russell (Minn.. 1892), 51 N. W. R. 629 ; Holland v. Alcock, 108 N. Y. 312 ; O'Connor V. Gifford, 117 N. Y. 275; Reed v. Williams, 125 N. Y. 560; Tilden r. Green, oo N. Y. 000 ; Butler v. Green, 16 N. Y. Sup. 889; Stonestreet v. Doyle, 75 Va. 356; Bible So- ciety V. Pendleton, 7 W. Va. 79. For a criticism of these decisions, see 5 Harv. L. Rev. 389-402. — Ed. SECT. XL] MUSSETT V. SINGLE. 201 MUSSETT V. BINGLE. In the High Court of Justice, Chancery Division, before Sir Charles Hall, V. C, May 10, 187G. [Reported in Weekly Notes (1876), 170.] In this cause, which now came on upon further consideration, the testator had by his will directed his executors to apply £300 in erectinor a monument to his wife's first husband, and also to invest £200 and apply the interest in keeping up the monument. It was admitted that the latter direction was bad,i and the question argued was whether the former direction was good. The trustees were ready to carry out the testator's wishes, but some of the beneficiaries contended that the first direction was void as purely " honorary." Dickinson, Q. C, and Cozens-Hardj/, for the plaintiff. W. Pearson, Q. C, and Bathurst, for the executors. Badcock, for the heir at law. W. W. Cooper and Kekewich, for other persons interested. The Vice Chancellor said that the direction to the executors was a perfectly good one, and one which they were ready to perform, and it must be performed accordingly.^ 1 Lloyd V. Lloyd, 2 Sim. n. 8. 25.5, 26.5 ; Kickard v. Robson, 31 Beav. 244 ; Fowler V. Fowler, 33 Beav. 016 ; Hoare v. Osborne, L. K. 1 Eq. 585 ; Re Kigley's Trust, 36 L. J. Ch. 147 ; Yeap Cheah Neo v. Ong Cheng Xeo, L. R. 6 P. C. 381, 396 ; Fiske v. Atty. Gen., 4 Eq. 521 ; Hunter v. Bullock, 14 Eq. 45; Dawson v. Small, 18 Y.k\. 114; Re Williams, 5 Ch. D. 735 ; Re. Birkett, 9 Ch. D. 576; Re Vaughau, 33 Ch. I). 187; Beresford v. Jervis, 11 Ir. L. T. Rep. 128; Re Sinclair's Trusts, 13 L. R. Ir. 150; John.son v. Ilolifidd, 79 Ala. 423 ; Coit v. Com.stock, 51 Coun. 352; Piper v. Moulton, 72 Me. 155; Churcii Extension v. Smith, 50 Md. 304 ; Dexter i;. Gardner, 7 All. 243 [m>mble) ; Giles v. Bo.ston Soc'y, 10 All. 355, 357 (semble) ; Bates v. Bates, 134 Mass. 110; Dctwiller i-. Flartman, 37 X. J. E(|. 347 ; Read v. Williams, 125 N. Y. 560; Re Fisher's E.state, 8 N. Y. Supp. 10; Trustees v. Gifford, 5 Pa. Co. R. 92; Kelly v. Nichols (R. L, 1891), 21 Atl. R. 906 ; Hornberger v. lioruberger, 12 lleisk. 035 ; Fitet>. Bea.sley, 12 Lea, 328 Arcord. The decisions to the contrary in Gravenor i'. Ilallum, Amb. 643, Jones v. Mitclicll, 1 S. & S. 200, and Willis v. lirown, 2 Jur. 987, must be regarded as overruled. A similar decision in Jones /,-. Habersham, 107 U. S. 174, 3 Woods C. C. 443, 470, is due to a statute. If no perpetuity is attempted, o. g. where property is given in trust for the main- tenance of a monument during the life of A., the trustee cannot bo prevented from effectuating the donor's purpo.se. I/loyd v. Lloyd, 2 Sim. n. h. 255 (se.mble). The rule of perpetuities wns ingenir)usly evaded in /^pTyler (1891),3 Ch. 253. The testator gave a fund to a charitalile organization, with directions to maintain the family vault. If the.so directions were not complied with, the fund was to go to another charity. The conditjoM and the gift over were held valid. — En. "^ Ma.stcrH »;. Ma.iters, 1 P. Wms. 423; Mellick v. Asylum, Jacob, 180 (armhh'); Limbrey v. Gurr, 6 MaOTted in 2\ Fmw He port. t, Irish, 138] Jane Cowley, by her will, dated the 30tl> October, 1881, devised and bequeathed all her property to the defendants, upon the trusts ' Mitfonl V. Reynolds, 16 Sim. 105 ; Fablo v. Brown, 2 Hill, Cb. 378, 382 (semble) ; Skiiuo V. Walker, 3 Rich. Eq. 202, 269 {semlde) Accord. — Ed. U 210 KEICIIENBACH V. QUIN. [CIIAP. I. therein declared ; and, after giving certain other directions in respect thereof, proceeded : " And whatever interest 1 Iiave in the lauds of Newcastle, County Dublin, and in the premises in Bridgefoot Street, Dublin, now forming a portion of Darcy's Brewery, I direct that the same shall be sold after my decease, if not previously disposed of, and out of the amount realized thereby, after payment of the ex- penses of such sale, I direct my trustees to apply £100 towards hav- ing masses offered up in public in Ireland for the repose of my soul and the souls of my father, mother, brother, and sisters, and of my servant Anne Hagarty, and apply the balance towards such charitable purposes in Ireland as my trustees shall select." And the testatrix appointed the defendants executors of her said will. The testatrix died on the 16th June, 1882, and on the 24th July, 1882, probate of her will was granted to the defendants. Anne Hagarty survived the testatrix. An action was brought by certain legatees under the said will, for the purpose of having the trusts thereof carried out and the personal estate of the testatrix administered, and a decree was, on the 4th March, 1885, made to that effect. The case now came before the Court on further consideration of the Chief Clerk's certificate, and a question arose as to the validity of the bequest for masses. Serjeant Campion (with him Mr. Harty), for the plaintiffs. Mr. Beidey, Q. C. (with him Mr. J. H. Campbell)., for the defendants. Mr. Carson, for the Attorney General.' The Vice Chancellor. I am of opinion that there is no attempt to create a perpetuity by the trust in reference to the £100 for masses. There is a direction in the will that the lauds of Newcastle and the testatrix's premises in Bridgefoot Street should be sold, and that out of the amount realized her trustees should apply £100 towards having masse? offered up in public in Ireland for the repose of her soul and the souls of the other persons mentioned. I do not consider that there is any attempt here to create a perpetu- ity, and on that ground — and I wish it to be understood that on that point only I give a decision — I shall declare that the gift is valid.'^ 1 The arguments of counsel are omitted. — Ed. 2 Commissioners v. Wybrants, 7 Ir. Eq. 34 n. ; Read v. Hodgens, 7 Jr. Eq. 16; Raftery v. Coleman, Hamilton, Cliarities, (2d ed.) 77, L. K. 21 Ir. 139 (cited) ; Brennan I'. Brennan, Ir. R. 2 Eq. 321 , Dillon v. Reilly, Ir. R. 10 Eq. 152 (third point) ; Atty. Gen. V. Delaney, Ir. R. 10 C. L. 104; Bradshaw v. Jackman, 21 L. R. Ir. 12; Perry V. Tuomey, 21 L. R. Ir. 480; Ilagenmeycr i;. Hanselman, 2 Dem. 87 Accord. Boyle V. Boyle, Ir. R. 11 Eq. 4.33 Iscmhle) ; Holland v. Alcock, 108 N. Y. 312; O'Conner v. Gifford, 117 N. Y. 275, 280 (scmUe), 6 Dem. 71 Contra. In Holland v. Alcock, supra, Rapallo, J., on behalf of the Court, said, pp. 322-324 : " It has been argued that the absence of a beneficiary entitled to enforce the trust is not fatal to its existence where the trustee is competent and willing to execute it, and the pur- pose is lawful and definite ; that it is only where the trustee resists the enforcement of the trust, that the question of the existence of a beneficiary entitled to enforce it arises. I have not found any case in which this question has been adjudicated, or the SECT. XI.] EEICHEXBACII V. QUIN. 211 point has been made, and it does not seem to be presented on this appeal. The case now before us arises on a demurrer by tlie defendant Alcock, one of the executors, to the complaint, on the ground that it shows no right iu the plaintiffs. The complaint alleges that the defendant Alcock, together with Frederick Smyth, were named as executors iu the will ; that the defendant Alcock did not qualify, and has never acted as executor or as trustee of the alleged trust sought to be created by the third clause, nor participated in any form in carrying out the same, but that his co-executor Fred- erick Smyth has taken possession of the whole estate as such executor and trustee. Smyth is not a party to this appeal. It comes up on the demurrer of Alcock alone, and there is nothing iu the complaint to show that he is willing to execute the trust, but on the contrary it shows that he has in no manner acted or qualified himself to act therein. But aside from these considerations, I do not think that the validity or invalidity of tlie trust can depend upon the will of the trustee. If the trust is valid he can be compelled to execute it ; if invalid he stands, as to personal property undis- posed of by the will, as trustee for the next of kin, and the equitable interest is vested in them immediately on the death of the testator, subject only to the payment of his debts and the expenses of administration. When a trust is attempted to be created without any beneficiary entitled to demand its enforcement, the trustee would, if the trust property were in his possession, have the power to hold it to his own use without accountability to any one and contrary to the intention of th« donor, but for the prin- ciple that in such a case a resulting trust attaches in favor of whoever would but for the alleged trust be equitably entitled to tlie property. This equitable title cannot on any sound principle be made to depend upon the exercise by the trustee of an election whether he will or will not execute the alleged trust. In such a case there is no trust in the sense in which the term is used in jurisprudence. There is simply an honorary . and imperfect obligation to carry out the wishes of the donor, which tlie alleged trustee cannot be compelled to perform, and which he has no right to perform con- trary to the wishes of those legally or equitably entitled to the property, or who have succeeded to the title of the original donor. The existence of a valid trust capal)le of enforcement is consequently essential to enable one claiming to hold as trustee to withhold the property from the legal representatives of the alleged donor. A merely nominal trust, in the performance of which no ascertainable person has any interest, and which is to be performed or not as the person to whom the money is given thinks fit, has never been held to be sufficient for that purpose." A conveyance inter vivos, upon trust for masses for the son! of the donor is valid : Kehoe v. Kehoe (Cook Co. C. C, 111), 22 A. L. Keg. n. s. 6,56; even in New York, where a bequest for the same purpose is inoperative : Gihnau v. McArdlo, 99 N. Y. 451. If the bequest for masses contemplates a perpetuity, it is of course void, inasmuch as it is not a charitable bequest. Dillon v. Reilly, Ir. K. 10 Eq. 1.52 ; Beresford v. Jervis, 11 Ir. L. T. Rep. 128; M'Court v. Burnett, 11 Ir. L. T. Rep. 130; Kehoe v. Wilson, 7 L. R. Ir. 10; Morrow v. M'Conville, 11 L. R. Ir. 236; Dorrian v. Gilmoro, \t) L. R.Ir. 69. In Ma.s8a<;huaett3 and Pennsylvania, however, such a bccjuest is a charitable be- quest. Sdioulcr, Pet., 134 Mass. 426; Seibcrfs App., 18 W. N. (Pa.) 276; Power'3 Estate, .5 W. N. (Pa.) !)0 (reversed on another ground in Rhymer's App., 93 Pa. 142) ; Dougherty's Kstate, .'> W. N. (Pa.) .'j.'JO (xnnhlc). In f;ngland a trust for masHes is void as a superstitious use. Rex v. Portington, 1 Salk. Uii! ; West )). Shuttleworth, 2 M. & K. 684 ; Heath v. Chapman, 2 Drew. 417; I Re Blundcll, .30 Beav. 360; lie Fleetwood, 15 Ch. D. 596; Elliott v. Elliott, 35 SoL J. 206. — Ed. -12 ROSS V. DUNCAN. [CUAP. L ROSS AND ROSS V. DUNCAN and Others. In the Superior Court of Chancery, Mississippi, before Robert J. Buckner, Chancellor, 1839. [Reported in Freeman, Chancery, 587.] The Chancellor.^ The coraplaiuauts bring this suit as the heirs and distributees of Margaret A. Keed, deceased. The allegations of the bill, so far as the demurrer is concerned, are : That Mrs. Reed, about the 14th June, 1838, made her last will and testament, appointing the defendants her executors, to whom she de- vised and bequeathed the most of her estate, consisting in part of a large number of negro slaves ; that said devises and bequests were made upon the secret trust and confidence that the negroes should be taken by the defendants as the executors of the will to Liberia, there to remain free, &c. A letter from the testatrix of even date with the will is referred to in the bill, which it is alleged is declarative and ex- l LfC^i^ pressive of the secret trust aforesaid. It is alleged that this secret io^' fTj[t4i,$%rust is in violation of the laws of Mississippi, and was intended to r^^TZij-* evade and defraud the statute which prohibits the emancipation of V04 "^ slaves by last will and testament, except under the restrictions therein Tj^jj^ P^' enumerated. The complainants pray that the will be set aside, that . .A the estate may be decreed to them, &c. To this bill there is a general ■CA^A'*'^ demurrer, which at once presents the question of the validity of the ft AJUA ^ ^'^' ^^ coupled with the alleged secret trust. If the trust be an illegal ^ one, it can make no difference whether it be tacit or express ; the same consequences must follow it in either character. I shall therefore elect to consider the will as having upon its face a devise and bequest to the defendants upon the express trust that the negroes therein men- tioned should be taken to Liberia, there to remain free. Several collateral questions were made on the argument, all of which it is believed resolve themselves into this plain and broad proposition : Is a will made within this State, by one of its citizens, in which negro slaves are bequeathed upon the trust that they shall be taken to Li- beria, on the coast of Africa, there to remain, void, as being in fraud and violation of our laws, and in contravention of their policy upon the subject of domestic slavery? It is difficult to conceive how an act done in Liberia, according to its laws, should involve a violation of those of this State. The rule that every contract, act, or agreement is to be governed by the laws of the place where the execution or peformance is to take place, is one of universal application. The execution of the trust in this case, ac- cording to the allegations of the bill, is to take place in Liberia. The 1 The report of the case is materially abridged, — Ed. SECT. XI.] ROSS V. DUNCAX. 21 o laws of that place, then, according to the rule, must decide upon its le- gality. The ground was taken, that, as the negroes, for whose benefit the trust was raised, can maintain no suit in our courts to enforce it, and there being no one who can enforce it, the trust, it is insisted, is thefefore void. The conclusion does not necessarily follow from the premises. A trust may be created which may be perfectly consistent with the law, and yet the law may have pointed out no mode of en- forcement ; still it would not mterpose to prevent it, but would leave its execution to the voluntary action of the trustee. A person may convey his pi'operty upon what trust or condition he pleases, so that it be not against law ; and the court would only interfere at the instance of the heirs or distributees of the grantor or testator, when there had been a failure or refusal to perform the condition or trust. These prin- ciples, I think, are plainly deducible from the case in 4 Wheaton, 35. The demurrer must be sustained and the bill dismissed.^ 1 Affirmed in the High Court of Errors and Appeals, 6 Miss. 305. See, to the same effect, Atwood v. Beck, 21 Ala. 590; Abercrombie v. Abercrombie, 27 Ala. 489; Hooper v. Hooper, 32 Ala. 669; Jordan v. Bradley, Dudley (Ga.), 170; Vance v. Crawford, 4 Ga. 445; Cooper v. Blakey, 10 Ga. 263; Cleland v. Waters, 19 Ga. 35, 53-54, 61-62; Sanders v. Ward, 25 Ga. 109; Green v. Anderson, 38 Ga. 655; Leech r. Cooley, 14 Miss. 93; Thompson v. NeM'lin, 6 Ired. 380, 8 Ired. 32; Frazier v. Frazier, 2 Hill, Ch. 304 (but in 1841 a statute was passed making such trusts illegal as against public policy Finley v. Hunter, 2 Strob. Eq. 208, 214; Gordon r. Black- man, 1 Kich Eq. 61) ; Henry v. Hogan, 4 Humph. 208 ; Elder v. Elder, 4 Leigh, 252. In Cleland v. Waters, supra, Starnes, J., says, p. 61 : " The executor's right and duty in the premises are prescribed by the law of the testator's will. Where there is no municipal law forbidding it, the testator can certainly make such a law fur him- self in his will, and the same reason exists why the executor should carry it into effect, as why he should erect a monument or tombstone of specified character and coat, if 80 directed by the testator's will. It will not be disputed, I sup])ose, that, if such directions were given 'by a testator, it would be the duty of his executor to carry them into effect (especially if they were reasonable), and that he would be sustained l)y a court of justice in so doing, or instructed so to do by a court of e(jMil_\-, if ho asked instructions on this head. Yet, it could not lie said that the tombstone had any right in th<; {jrcinises, or, perhajjs, that any roniody lay against the executors by which tlie erection of the stone could be enforced." In Hooper v. Hooper, supra, Kivers, C J. said, p. 073 . " The Court of Chancery will recognize the authonli/ of the ex- ecutor to execute the tru.st, and, if by Ins hill he sulnnits the administration to that court, it might po.«so.'. Who .m.\ V ni; a Cestti que Tui'st. — Any person ca])ab](! of holding projicrty may be the beneficiary in a trust. In other words, in almost all jurisdictions any human being may, at the prcsfnt day, be a ri'sltn f/uc trust. Neither lunacy, coverture, nor infancy is a ilisq>ialificati(jn. There were formerly two exceptions to this rule, namely, aliens and slaves. ( 1 ) Aliens. An alien could take, but could not hobl, as cestui que trust. The sover- eign became at once entitled to the licnefit of the trust. King v. San. Wadkin, 24 Beav. 1 ; Sharp v. St. Sauvonr, 7 Ch. 343 (overruliug Kittson v Stordy, 3 Sm. & G. 230) ; Duinoniol y. Dumouccl, 13 Ir. Kq. R. 92; Taylor v. Bcnliani, 5 How. 270 (semhle) ; Leggctt v. Dubois, 5 Paige, 114; Austice v. Brown, 6 Taigc, 448 {semble) ; Gilmour v. Kay, 2 Ilayw. (N. Ca.) 108; Atkin v. Kron, 5 Ired 207; McCaw v. Galbraith, 7 Rich. 74; lluliliard )". Goodwill, 3 Leigh, 492. In Escheator v. Smith, 4 McC. 452, an alien cestui que trust with a power of appoint- ment, having executed the power before office found, the appointment was adjudged valid. A contract with one as trustee for an alien was not enforceable at all. Brandon V. Nesbitt, 6 T. R. 23 ; Brandon v. Curling, 4 East, 410. (2) Slaves. A slave could not be a cestui que trust. Haywood v. Craven, 2 L. Rep. (N. Ca.) .')57 ; Cunningham v. Cunningham, 1 Tayl. 209; Bynum v. Bostick, 4 Dess. 266. This trust was void, and the trustee became a constructive trustee for the creator of the trust or his representative. American Society v. Gantrell, 23 Ga. 448 (semhle) ; Craig V. Beatty, 11 S. Ca. 375; Blakely v. Tisdale, 14 Rich Eq. 90, 97 (disapproving of Fable v. Brown, 2 Hill, Ch. 378, where a slave was assimilated to an alien). In North Carolina, if a slave invested his earnings, made by the consent of his master, in an obligation running to a trustee for the slave, the trustee could of course collect the obligation. White v. Cline, 7 Jones, (N. Ca.) 174, but the owner of the slave could not compel the trustee to hold the obligation for him (the owner) ; Lea V. Brown, 5 Jones, Eq. 379 ; nor to pay him the proceeds ; Barker v. Swain, 4 Jones, Eq. 220. In Lattimore v. Dickson, where notes were made payable to a trustee for a slave, the trust was held to be enforceable by the slave after his emancipation. — Ed. { SECT. Xn.]' PIMBE'S CASE. 215 SECTION XII. Tile Trustee. PBIBE'S CASE. Trinity Term, 1585. [Reported in Moore, 196. — 'Translated in Cruise, Uses, 47.] Throckmorton committed high treason, 18 Eliz,, for which in 26 Ehz. he was attainted by trial. Between the treason and the attainder a fine was leWed to him by Scudamore of certain lands to the use of Scudamore and his wife (who was sister to Throckmorton), and of the heirs of the said Scudamore. Afterwards Scudamore and his wife bargained and sold the lands to Pimbe for money. Upon discovery of the treason and the attainder of Throckmorton, the purchaser Pimbe was advised by Ploicden, Popham, and many others, that the estate of the land was in the Queen, because the Queen is entitled to all the lands that traitors had at the time of the treason, or after. So the use which was declared to Scudamore and his wife upon the fine was void, by the relation of tlie right of tlie Queen under the attainder, and the Queen must hold the laud, discharged of the use, because the Crown cannot be seised to a use.^ It is but justice to mention that, the case being represented to Queen Elizabeth, she, much to her honor, granted the land to the cestui que use by patent. ' Similarly, the King could not make a conveyance by bargain and sale. Atkins v. Longvilo, Cro. .Jac. .'JO. The common Btatoment that the crown or a state cannot be a trustee means simply that the c/stui que trust cannot file a hill in ciiuity against the sovereign. Dillon V. Freine, I'oph. 72; Wike's Ca.se, Lane, .')4, 2 Ifuil. Ah. 780 [C] 1, s. c. ; I'aulett v. Atty. Gen., Ilardros, 46.5, 467; Kildare v. Eustace, 1 Vcrn. 437, 439; lieeve v. Atty. Gen., 2 Atk. 22;j, 1 V'fs. 446 (cited), s. c. ; I'enn ?•. Raltimore, 1 V^cs. Sr. 444,453; Burgess v. Whejite. 1 Kdcn, 177, 2.'j.'') ; Hodge v. Atty. Gen., 3 Y. & C. 342 ; I'eojilo i-. Ashhurner, .5.5 Cal. 317 ; Shoemaker r. Board, 36 Ind. 175; Briggs v. Light Boats, 11 All. 157, 170-1 7;!; rinsf)n ». Ivcy, I Yerg. 296, 332. In Fanners' Co. v. The People, 1 Sandf. ('h. 139, the difficulty of j)r()re{ tho petitioner. Timbo's Ca.ie, sujirn ; Sconnden v. II;iwley, Coml). 172; Briggs v. Light Bouts, 11 All. l.")7, 170-173. Soc Knsloinjee r. (inccn, 2 Q. B Div. 69. The validity of tho trust is recogni/od also in legal firocpodings in which the sover- eign is not made adeb-ndant. Ivg. : A grantco of tho sovereign lakes the title suliject to the trust. Winona v. St. I'aul Co., 26 .Minn. 1 79 ; Pinson v. Ivey, 1 Yerg. 296 ; Marshall V. Lovela.ss, Cam. & Nor. 217. And if the sovereign obtains tho title to trust jiroporty, his title will be barred and with it the claim of tho cestui qur trust by the s.'inie lapse of time wiiich would have protected tbe adverse possession if a private individual had keen trustee. Miller v. State, 38 Ala. 000; Molten v. Henderson, 62 Ala. 426. — Ku. 216 ATTORNEY GENER.\JL V. LAUDERFIELD. [CHAP. L KING V. BOYS AND ANOTHER. In the Easter Teum, 1569. [Reported in Dyer, 283 b.] One T. King enfeoffed one Jasper Boys, an alien, and Forcet of Gray's Inn, to tlie use of himself and his wife in tail, remainder to his right heirs. Whether the Queen be entitled to a moiety of the land immediately, or not, was the question. And it seems that if an office be found of it, the Queen shall have the moiety by her prerogative to her own use, and the other use in this moiety is gone forever."- THE ATTORNEY GENERAL v. LAUDERFIELD. In Chancery, before Lord Hardw^ick, C, Michaelmas Term, 1743. [Reported in 9 Modern Reports, 286.2] Note. In this case the Attorney General argued, that as corporations could not be seised to an use at law, no more could they be trustees, but should have the lands to their own use, divested and freed from the trust.* But the Chancellor would not let him go on, nothing being clearer than that corporations might be trustees.* 1 Fish V. Klein, 2 Mer. 431 ; Marshall v. Lovelass, Cam. & Nor. 217 (semble) Accord. An alien grantee upon trust acquired title defeasible only by the sovereign. Com. Dig. Alien, C. 4 ; Ferguson v. Franklin, 6 Munf. 305. The alien's disability was removed in England by St. 33 Vict. c. 14, § 2; and by similar statutes an alien may at the present day in almost all jurisdictions hold prop- erty as freely as a subject, and may therefore be a trustee. In In re Hill, W. N. (1874), 228, the court appointed an alien as trustee of English property for beneficiaries in France. — Ed. 2 3 Sw. 416, s. c. — Ed. 8 Chudliegh's Case, 1 Co. 122 a. See, accord, Br. Ab. Feff al Use, 60 ; Bury v. Boken- ham, Dy. 8, b ; Bacon, Uses, 57. But see, contra, Holland's Case, 2 Leon. 122, 3 Leon. 176, 8. c. The reason for the ancient doctrine is tlius quaintly expressed in Popham, 72 : "Yet every feoffee is not bound although he hath knowledge of the confidence, as an Alien Person, Attaint, and the like ; nor the King, he shall not be seised to an- other's use, because he is not compellable to perform the confidence ; nor a Corpora- tion, because it is a dead body, although it consist of natural persons : and in this dead body a confidence cannot be put, but in bodies naturall." — Ed. * Green v. Rutherforth, 1 Ves. 462, 467 ; Atty. Gen. v. Whorwood, 1 Ves. Jr. 534, .536; Atty. Gen. v. Governors, 2 Ves. Jr. 41, 46; Dummer v. Corporation, 14 Ves. 245, 252; Atty. Gen. v. Cains College, 2 Keen, 150, 165; Evans v. Corpo- ration, 29 Beav. 144; Vidal v. Girard, 2 How. 127, 187; Miller v. Lerch, 1 Wall. Jr. 210; Stone v. Bishop, 4 Cliff. 593 ; First Society v. Atwater, 23 Conn. .34; Phillips Academy v. King, 12 Mass. 546; Webb v. Neal, 5 All. 575; Commissioners v. Walker, SECT. XII.] JEVON V. BUSH. 217 JEVON V. BUSH. In Chancery, before Lord Jeffreys, C, November 27, 1685. [Reported in 1 Vernon, 342.] Lord Bell amount lent £600 to one Gardiner on a recognizance oi ^1,000, which he took in the name of the defendant Bush, and intended it as a provision for the plaintiff, his infant daughter, then but two years old ; and Bush at the same time executed a declaration of the trust. Gardiner being about to sell his estate, and the purchaser hav- ing notice of the recognizance, Bush is prevailed upon to acknowledge satisfaction; and in 1657, and not before, the plaintiff had notice of this declaration of trust, and, understanding that Bush had acknowl- edged satisfaction on this recognizance, brings her bill to be relieved against this breach of trust. The defendant by answer insisted, and it was so proved in the cause, that he was but eighteen years old when he made this decla- ration of trust ; and insisted likewise, that he never had one penny for his acknowledging satisfaction on that recognizance, but that Lord Bellamount's widow, as he believes, received the moneys due thereon.^ The counsel for the defendant insisted, that the plaintiff ought to prove some fraud in the trustee, or that he received to his own use part of the money. LoKU Chancellor. The proof lies on the defendant's side ; he ought to discharge himself, and it is not sufficient for him to say he never received any of this money for his own use : there is no doubt but an infant may be a trustee ; '^ and the breach of trust was committed in 1654, after he was of full age; and therefore decreed him to pay the principal money, with damages not exceeding £1,000, being the penalty of the recognizance ; and cited my Lord Hobart, I jwlio says that cestui que trust in an action of the case against his ,C I trustee shall recover for a breach of trust in damages. 7 Miss. 143, 1R5; Wado v. American Society, 15 Miss. 663 ; Chambers v. St. Louis, 29 Mo. 543 ; Tni.stces v. I'eaalce, 15 N. H. 317 (srmhie); Re Howe, 1 I'aigo, 214 ; Sheldon V. Cha].pftll, 47 Iliin, 59; Columhia Co. v. Kline, Bright. N. P. 320; Jir parte Greeu- ville, 7 Rich. Eq. 471, 470, 483 ; Ik-ll Co. v. Aloxauder, 22 Tex. 350 Accord. The court may ajijioint a cori)orati()n a tru.stoo. Anon., 7 Phila. 517. But see Re r.rof,'(len, W. N. (1H8H), 2W. It was (iccidcd in In re FranklinV E.st. (Pa. 18;»2), 24 At). H. 626, tliat a municipal corporation could not liecome a trustee of a purely pri- vate tru.st. Hut SCO (ilouccst(!r v. Oshorn, 1 M. L. 272, 285. — Ed. * The statement of facts has been abridged. — Eo. 2 Altli'ingli an infant may bo a trustee, no judicious person and no court woulil ap- point an infant as trustee. An infant, it is obvious, has not llic discretion requisite to the due administration of a trust, and cannot bo held accountable for its maladminis- tion. Pu.Hscrs Ca.se, 5 Kep. 27 n ; Whitinoro v. Weld, I Vern. 328; Ilindniarsh v. Southgate, 3 Russ. 324 ; in wliich ca-ses it was adjudged that au infant executor was Dot liable for a devastavit. There was formerly, however, no mode of divesting the infant trustee of his title to 218 PEGGE V. SKYNNER. [CIIAP. PEGGE V. SKYNNER and RICHARDSON. In Chancery, before Lord Thurlow, C, May 22, 1784. [Repoited in 1 Cox, Equity Cases, 23.] Bill for specific performance of an agreement for a lease from plain- tiff to defendants. It was objected that the defendant Richardson liad since become incapable of doing any act in consequence of a paralytic stroke. It was ordered that the defendant Skynner should execute a counterpart of a lease, and also the defendant Richardson, when he should be capable of so doing. ^ Lord Thurlow refused to give plaintiff costs. the trust property. An equity judge could make no other decree against the infant than that which was made in Anonymous, 3 P. Wms. 389, u. [A] ; namely, " to convey when of age, unless he should show cause to the contrary witliin six months after he should come of age." See also Perry v. Perry, 65 Me. 399 ; Whitney v. Stearns, 1 1 Met. 319 ; and compare King v. Bellord, 1 H. & M. 343. The first remedial statute was passed in 1708, St. 7 Anne, c. 19, which was followed by St. 6 Geo. IV. c. 74, § 2 But these statutes applied only to bare, expre.'is trustees. Ex parte Vernon, 2 P. Wms. 549 ; Goodwin v. Lister, 3 P. Wms. 387 ; Hawkins v. Obeer, 2 Ves. 559; Atty. Gen. v. Pomfret, 2 Cox, Eq 221 ; Ex parte Beddam, 1 Rose, 310, Bullock »;. Bullock, 1 J, & W. 603; King v. Turner, 2 Sim. 549, Re Moody, Tamlyn, 4. But by the Trustee Act of 1850, 12 & 13 Vict. c. 74, § 7, the title of an infant trustee may by the Court of Chancery be vested in a suitable person, whether the trust be express or constructive, and whether tiie trustee is a bare trustee or has a beneficial interest. There are similar statutes in this country. Hawthorn v. Root, 6 Bush, 501 ; Bridges v. Bidwell, 20 Neb. 185 ; Re Pollen, 14 N. J. Eq. 147 ; Ownes v. Ownes, 23 N. J. Eq. 60 , Livingston v. Livingston, 2 Johns. Ch. 537 ; Thompison v. Dulles, 5 Rich. Eq. 370. Such statutes have of course no extra-territorial force. Sutphen v. Fowler, 9 Paige, 280. Independently of these statutes, if an infant trustee actually conveyed to the cestui que trust, or according to his directions, he could not, on attaining majority, disaffirm the conveyance. v. Haudcock, 17 Ves. 384 , Elliott v. Horn, 10 Ala. 348 ; Starr V. Wright, 20 Oh. St. 97 ; Thompson v. Dulles, 5 Rich. Eq. 370. Although, as we have seen, an infant was not lialile for a breach of trust, he was chargeable ex delicto as a constructive trustee for any property acquired by his miscon- duct. Anon., 2 Eq. Ab. 489, n. (a), 1 DeG. & Sm. 1 18, n. ; Clare v. Watts, 9 Vin. Ab. 415 ; Anon., 2 Eden, 71, 72 ; Overton v. Banister, 3 Hare, 503 ; Lempriere v. Large, 12 Ch. D. 675. — Ed. * Owen V. Davies, 1 Ves. 82 ; Hall v. Warren, 9 Ves. 605 Accord. Apart from statutes, the only decree that could be made against a trustee non com- pos mentis wa.s in the form indicated in the principal case. The difficulty was removed in England in 1731, in the case of express, bare trustees, by St. 4 Geo. II. c. 10, and St. 6 Geo. IV. c. 74, § 3. But the old rule continued as to constructive trusts and trusts in which the trustee had an interest. Ex parte Tutin, 3 V. & B. 149 ; Ex parte Currie, 1 J. & W. 642. But by the Trustee Act of 1850, § 3, the Equity judges were authorized to vest the title of a lunatic trustee in a suitable person, whether the trust was constructive or express, and whether the trustee was a bare trustee or beneficially interested. See also the Lunacy Act of 1890, §§ 135, 136. There are similar statutes in this country. Re Wadsworth, 2 Barb. Ch. 281 ; Swartout v. Burr, 1 Barb. 495. A lunatic trustee is, of course, not liable for a breach of trust. — Ed. SECT. XII.] STILL V. EUBY- 219 STILL AND WIFE V. RUBY and OTHERS. In the Supreme Coukt, Pennsylvania, January Term, 1860. [Reported in 35 Pennsylvania Reports, 373.] Error to the District Court of Philadelphia. This was a scire facias by Mary Ruby and John Ruckstool and Eliza A. Ruckstool, which Mary Ruby and Eliza A. Ruckstool were trustees of The Heart and Hand Female Beneficial Society of Philadelphia, against Charles Still and Sarah K,, his wife, on a mortgage given by the defendants to the female plaintiffs, as trustees, on the 19th Feb- ruary, 1856, to secure the payment of $500 and interest, in one year from the date thereof. The following aflidavit of defence was filed by Charles Still, one of the defendants : — " Charles Still, one of the above-named defendants, and on behalf of his co-defendant, being duly sworn, &c., saith : That they have a just and legal defence to the whole of plaintiffs' claim in the above case, the nature and character of which is as follows : That the said Eliza A. Ruckstool, one of the above-named plaintiffs, before and at the time of the commencement of this suit, and at the time of the exe- cution of the mortgage on which said suit is brought, was and still is married to one .John Ruckstool, then and yet her husband, who is still living, to wit, at Pliiladelphia aforesaid, m the count}^ aforesaid ; and this deponent for himself and his co-defendant further says, that they have not, nor has either of them, any knowledge of John Ruckstool joined as a party plaintiff in this suit, except as the reputed husband of the said Eliza A. Ruckstool — his name does not appear in the mortgage on which this suit is brought — nor have this deponent and his co-defendant, or has ettiier of them, at any time had any trans- actions of business or otherwise with him. All of which the deponent expects to be able to prove on the trial of the case." The court below, on motion of the i)Iaintiffs' counsel, gave judgment for want of a sufHcient affidavit of defence, which was here assigned for error. J. M. Arundel, for the {)laintiff in error. Brinkli and B. A. Mitchell^ for the defendants in error. ^ The opinion of the court was delivered by WooDWAT!!), .T. — Tlic affidavit disclosed no defence whatever. Mrs. Ruckstool, as apj)cared on the face of the mortg.-igc, was only trustee for The Heart and Hand Female Beneficial Society, in whom the beneficial interest of the mortgage was vested. Fem.es covert, like infants, lunatics, and others non sni juris, maybe trustees, subject, of course, to their legal incapacity to deal with the estate vested in them. 1 The argumcntB of counsel are omitted. — Ed. 220 IN RE C.VMrBELL's TRUST. [CHAP. I. Hill on Trustees, 49. The incapacity of Mrs. Rnckstool to sne in her own name was obviated by her husband joining with her. The mort- gagors must pay the money as they agreed to do. The judgment is affirmed.^ In re CAMPBELL'S TRUST. In Chancery, before Sir John Rojhlly, M. R., June 4, 1862. [Reported in 31 Beavan, 176.] This was a petition to appoint two new trustees. One of the per- sons proposed was a feme sole, but who was, in all other respects, imexceptionable. Ml'. Cutler in support of the petition. The Master of the Rolls doubted whether the court ever ap- 1 A married woman may be a trustee. King v Denison, 1 V. & B. 277 ; Gridley V. Wynant, 23 How. 500 ; Harden v Darwin, 66 Ala. 55 ; Milner v. Freeman, 40 Ark. 62 ; Cotton v. Wood, 25 Iowa, 43 ; Springer v. Berry, 47 Me 330, 338 ; Wilson v. Beauchamp, 44 Miss. 556 ; Barrier v. Barrier, 58 Mo. 222 ; Seibold v. Christman, 7 Mo. Ap. 254; Sawyer's App., 16 N. H. 459, Persons v. Persons, 25 N. J. Eq. 250; Parker v. Nevitt, 18 Oreg. 274; Bean v. Sanford, 9 Rich Eq. 423, 425; Smith v. Strahan, 16 Tex. 314 ; Wallace v. Bowen, 28 Vt. 638. In Milbank v Crane, 25 How. Pr. 193, a married woman was appointed a trustee by the court. In the absence of legislation, a married woman who is a trustee cannot convey the title to the trust property any more freely than a married woman holding in her own right. Co. Lit. 1 1 2 a, Hargreave's note 6 ; Baniel y. Uhley, W. Jones, 137, McNeillie V. Acton, 17 Jur. 1041, 2 Eq. Eep. 21, s. c. , 1 Fonbl. Tr. Eq. 92 ; Bundas v. Biddle, 2 Barr, 160. The husband must also join in the receipt for purchase money. Brum mond V. Tracy, Johns. 608 ; Kingsman v. Kingsman, 6 Q. B, Biv. 122, 128; and must likewise be co-plaintiff or co-defendant with her in legal proceedings. People v. Web- ster, 10 Wend. 554; Kingsman v. Kingsman, 6 Q. B. Biv. 122. Re Bocwra, 29 Ch, B. 693. By St. 3 & 4 Wm. IV. c. 74, § 91, if there was an incapacity of the husband to join in the conveyance, the wife might convey alone on application to the Court of Common Pleas. Re Mirfin, 4 M. & G. 635 ; Re Caine, 10 Q. B. B. 284. By 37 & 38 Vict. c. 78, § 6, a married woman who is a bare trustee of freeholds, or copyholds, may convey as freely as a feme sole ; and by 45 & 46 Vict, c 75, the same power was conferred with regard to annuities, bank deposits, and corporate shares. In this country, almost universally, a feme covert trustee is independent of her husband in her dealings with trust property. See, for example, Claussen v. La Franz, 1 Iowa, 226. Formerly a married woman trustee could not bind herself by any contracts relating to the trust property. Avery v. Griffin, 6 Eq. 606. And the liability for any breach of tru.st fell not upon her, but upon her husband. Smith v. Smith, 21 Beav. 385 ; Wainford v. Heyl, 20 Eq. 321 ; Re Smith, 48 L. J. Ch. 205 ; Bahin v. Hughes, 31 Ch. Biv. 390. By St. 45 & 46 Vict, c, 75, §§ 1, 18, 24, the husband is no longer liable for his wife's breaches of trust. The coverture of a trustee was thought to be a sufficient ground for removal in Lake V. Be Lambert, 4 Ves. 592, a. See also Taylor v. Allen, 2 Atk. 213; Re Kaye, 1 Ch. Ap. 387. — Ed. SECT. Xn.] WILDING V. BOLDER. 221 pointed a feme sole to be a trustee. He said he would consult the other judges. The Master of the Rolls, having done so, and the affidavits being satisfactory, made the order as asked.^ Re HATTATT'S TRUSTS. In Chancery, before Sir John Romilly, M. R., January 22, 1870. [Reported in 18 Weekly Reporter, 416] This was a petition for the appointment of a new trustee. The proposed trustee was a Mr. Knightly, who was the husband of one of the cestuis que trustent. The cestuis que trustent were all sui juris, and there were the usual affidavits of the fitness of the proposed trustee. SjMed, for the petitioner, mentioned the matter to the Court. Lord Romilly, M. R., said he would make the order, but the new trustee must undertake to apply immediately to the Court for the ap- pointment of a new trustee in case of his becoming a sole trustee.'^ WILDING V. BOLDER. In Chancery, before Sir John Romilly, M.R., December, 22, 1855. [Reported m 21 Beavan, 222.] Mr. Cairns appeared in support of a petition to appoint new trus- tees, one of whom was related to the cestuis que trust. The Ma.ster of the Rolls. I cannot depart from the rule I have adopted of not appointing a near relative a trustee, unless I fiud it ab- 1 Re Berkley, 9 Ch. 720; Ex parte Black, 1 Bland, 142 n. (f) ; Gibson's Case, I Bland, \W Arrord. Brook V. Brook, 1 Bcav. 170 Contra. — En » Re Parrot, W. N. (1881) 158, 30 W. R. 97 9. c. Accord. See also Re Davis, 12 Eq. 214 ; Re JosHon, L«!win, TniHtH (Hth oil.), 41 n. (h). But tho court refuHcd to appoint a liuwhiind as trustee in Re Lowdoll, Lewiu, Trusts (8th ed.), 41 n. (h) ; Ex parte Hunter, liico Eq. 293 ; Dean v. Lanford, 9 Rich. Eq. 423. In Boaz i). Houz, 36 Ala. 334, a hu.shand was removed from his trusteeship because ho had permanently atiandonf^il his wife. A cestui que truxt, having the power of naming a trustee in case of a vacancy, may appoint her hu.sbanfl. Twec-ily v. IJrqnliart, 30 Ga. 446. It pocH without saying that a husband may act as trustee if appointed by the creator of the trust. — Ei>. 222 EX PARTE CONYBEAUE'S SETTLEMENT. [CIIAP. L solutcly impossible to get some one unconnected with the family to un- dertake that cilice. 1 have always observed, that the worst breaches of trust are com- mitted by relatives, who are unable to resist the importunities of their cestuis que trusty when they are nearly related to them.^ Ex Parte CONYBEARE'S SETTLEMENT. In Chancery, before Sir G. J. Turner and Sir J. L. Knight Bruce, L. JJ., June 24, 1853. [Reported in 1 Weeklij Reporter, 458.] Oontbeare moved for the appointment as trustee of one of the ces- tui que trusts of an estate in the place of a trustee incapacitated from acting, in consequence of insanity. All parties were desirous that the appointment of the gentleman proposed should be made, and there were special circumstances in the case not necessary to be referred to for the purposes of the report. The Master of the Rolls had declined to make the order asked, on the ground that the Court ought not to appoint a cestui que trust as the trustee, even though there was not any other objection to his appointment. Tltjner, L. J. Under ordinary circumstances, no doubt, the Court will not appoint a trustee who is also one of the cestui que trusts ; but the rule is not imperative, and when there are special circumstances, the Court will exercise its discretion in judging whether the case is one in which the rule may be departed from. Here I think, under the special circumstances, we may make the appointment asked. '^ Knight Bruce, L. J., concurred. 1 See Parker v. Moore, 25 N. J. Eq. 228, 240. Relationship between proposed trustees is not a fatal objection to their appointment. Re Lancaster Charities, 9 W. R. 192. But see, as to trusts under the Settled Land Act, Re Knowles, 27 Ch. D. 707; Re Norris, 27 Ch. D. 333; Re Brintnall, W. N. (1872), 77. — Ed. 2 Ex parte Glutton, 17 Jur. 988; Re Clissold, 10 L. T. Rep. 642; Tempest v. Ca- moys, 58 L. T. Rep. 221 ; Custis's Trust, 5 Ir. R. Eq. 429 ; Milbank v. Crane, 25 How. Pr."l93 ; Kenderdine's Est., 12 W. N. (Pa.) 423 Accord. It is customary now to require an undertaking that, whenever a beneficiary trustee becomes sole trustee, he shall immediately take steps for the appointment of a co-trustee, as in Re Burgess, W. N. (1877), 87 ; Re Lightbody, 52 L. T. Rep. 40. Compare Forster p. Abraham, 17 Eq. 351. The creator of the trust may make a cestui que trust one of the trustees. This waa the case in Tempest v. Camoys, 58 L. T. Rep. 221 ; Amory v. Lord, 9 N. Y . 403 ; Bundy V. Bundy, 38 N. Y. 410 ; Wetmore v. Truslow, 51 N. Y. 338 ; Tiffany v. Clark, 58 N. Y. 632 ; Moke v. Norris, 14 Hun, 128, 2 Redf. 429 (criticising Craig v. Hone, 2 Edw. Ch. 564) ; Rogers v. Rogers, 18 Hun, 409. In Re Mayfield, 17 Mo. Ap. 684, a trustee was removed on the ground that he was the confidential clerk of a cestui que trust who was at odds with another cestui que SECT. XII.] IN RE barker's TRUSTS. 223 In re BARKER'S TRUSTS. In Chancery, before Sir George Jessel, M.R., November 6, 1875. [Reported in 1 Chancery Division, 43.] This was a Petition under the Trustee Act, 1850, and the Batik' ruptcy Act, 1869, asking for the removal of the sole trustee of a will (who had also a beneficial interest under it), on the ground that he had been adjudicated bankrupt, and for the appointment of a new trus- tee in his place, and for a vesting order. Part of the property subject to the trusts of the will consisted of bonds transferable by delivery with coupons. The trusts were to receive the income and pay it to one of the Petitioners during life. Chitty, Q. C, and Bush, in support of the Petition. Chapman Barber, for the trustee, said that it had never been held that bankruptcy alone was a sufficient reason for the removal pf a trustee. There was no case of misconduct made out against the pres- ent trustee, and if the safe custody of the property was desired, that object would be sufficiently attained by the appointment of an addi- tional trustee. Chester, for other parties. Jessel, M. R. In my view, it is the duty of the court to remove a bankrupt trustee who ha^ trust money to receive or deal with, so that he can misappropriate it. There may be exceptions, under special cir- stances, to that general rule ; ' and it may also be that where a trustee has no money to receive he ought not to be removed merely because he has become bankrupt ; but I consider the general rule to be as I have stated.^ The reason is obvious. A necessitous man is more likely to Inigt. The court rleclined to appf)iiit a romaindennan a.s trustee in R<' Paine, .33 W. I{. 564, aiifl a tenant for life in Jic Ilarrop, 27 Ch. I). 333. For furtlier instances of dis- qualification on the score of interest, see Re Kemp, 24 Ch. Div. 485 ; Re Norn's, 27 Ch. 1). 333 ; Jones v. Stockett, 2 Bland, 434; and compare Gaskill v. Green, 152 Mass. 526. — En. ' Afl in Re Bridpman, 1 Dr. & Sn). ir)4 ; Cooper v. Cooper, I Hal. Ch. 9, 11. See also fie Adams, 14 Ch. I). 634. — Er>. * Gladdon ?•. Stoncman, 1 Mad. 143, n. (a); Bainhrigfre u. Blair, 1 Bcav. 495; Ex parte Vauphan, 13 L. J. Bak. 22 ; Harris v. Harris, 29 Boav. 107 ; Re Hopkins, 19 Ch. Div. 61 ; AV Mitdifll, 52 L. T. ]{cp, 178, 180 {semlile) ; Re Adams, 14 Cli. I). 634 ; Re Roche, 1 Con. & Laws. .306, 2 Dr. & War. 287, 289 ; Commissioners v. Archliold, 1 1 Ir. Eq. R. 187 (but see 2 H. & C. 440, 461) Accord. TIic court mav, hut is not honml to, remove a trustee for insolvency. Staintnn V. Carron Co., 18 Bcav. 146; I'aildottk i'. Palmer, 6 How. Pr. 215 (insolvent when appointed cestui que trust, and known to bo so). See also Scott v. Becher, 4 Price, 346 ; Mansfield v. Shaw, 3 Mad. 100 ; l{ev. Code Ala., § 3164. In Virginia, an insol- vent trustee will not Ik; allowed to a<-lrT, 1 Vent. 128 (approved in Starirling v. RowriiiK, 31 Ch. Div. 282, 288); Siggors I'. Evans, .5 E. & B. 307; Donaldson i-. Donaldson, Kay, 711 ; Re Way's 230 ADAMS V. ADAMS. [CIIAP. L however, defeat the conveyance as a transfer of the equitable interest to a tliird person.^ A trust cannot fail for want of a trustee, or by the refusal of all the trustees to accept the trust. ^ The court of chancery will appoint new trustees.^ Trusts, 2 D. J. & S. 365 ; Liutou v. Brown, 20 Fed. Rep. 455, 467 (semble) ; Weber v. Christen, 121 111. 91 {semble) ; Myrover v. French, 73 N. Ca. 609 ; Wilt t;. Franklin, 1 Biun. 502 : Kead v. Robinson, 6 W. & S. 329 ; First Bank v. Ilohnes, 85 Pa. 231. The contrary opinions in Meek y. Kettlewell, 1 Hare, 464, and Bridget. Bridge, 16 Beav. 315, that notice to the trustee is esseutiiil to the validity of a trust, are overruled. Tlie same result is reached by the common statement that the assent of the trustee is presumed until the contrary is shown. Wise v. Wise, 2 Jon. & Lat. 403,412; King V. Phillips, 16 Jur. 1080; Kennedy v. Wire, 80 Ala. 165; Howry v. Gardner, 41 Oh. St. 642 ; McKiuncy v. Rhoads, 5 Watts, 343; Eyrick v. Hetrick, 13 Pa. 488; Cloud v. Calhoun, 10 Rich. Eq. 358; Field y. Arrowsmith, 3 Humph. 446; Saunders v. Harris, 1 Head, 185. — Ed. 1 Lewin on Trusts, 152 ; King v. Donnelly, 5 Paige, 46. 2 Backhouse v. Backhouse (cited), Lewin on Trusts, 8th ed. 833 n. (b) ; Wilks v. Groom, 6 D. M. & G. 205 ; Austin v. Martin, 29 Beav. 523 ; Izod v. Izod, 32 Beav. 242 ; Grady v. Ibach (Ala., 1891), 10 So. R. 287 ; Storrs School v. Whitney, .54 Conn. 342 ; Dailey v. New Haven, 60 Conn. 314; Re Petranek, 79 Iowa, 410; Penny v. Davis, 3 B. Mon. 313, 314; Harris v. Rucker, 13 B. Mon. 564; Winder v. Diffenderfer, 2 Bland, 166, 172; Jones v. Stockett, 2 Bland, 409, 435; Thatcher v. St. Andrew's Church, 37 Mich. 264, 270; Wilson v. Towle, 36 N. H. 129; Adams v. Adams, 64 N. H. 224 ; De Peyster v. Clendinning, 8 Paige, 295 ; McLusker v. Brady, 1 Barb. Ch. 329 ; Burrill v. Shell, 2 Barb. 457 ; Dunning v. Ocean Bank, 6 Lans. 296 ; Re Robiu- r,on, 37 N. Y. 261 ; Sheldon v. Chappell, 47 Hun, 59, 63 ; McLean v. Nelson, 1 Jones (N. Ca.), 396; Myrover v. French, 73 N. Ca. 609; Read v. Robinson, 6 W. & S. 329; First Bank v. Holmes, 85 Pa. 231 ; Ashe v. Ashe, Rich. Eq. Cas. 380; Withers v. Jeiikins, 6 S. Ca. 122; Field v. Arrowsmith, 3"Humph. 446 ; Brevart y, Neely, 2 Sueed, 164; Saunders v. Harris, 1 Head, 185; Goss v. Singleton, 2 Head, 67; Furman v, Fisher, 4 Col. 626, 630; Johnson v. Roland, 58 Tenn. 203, 211 ; Walker v. Johnson, 37 Tex. 127 ; Lee v. Randol])h, 2 Hen. & Munf. 12'Accord. A trustee may disclaim either by deed — Doe v. Harris, 16 M. & W. 517 ; Pepper- corn V. Wayman, 5 DeG. & Sm 230 — or by parol. Townson i;. Tickell, 3 B. & Al. 31 ; Staceyi'. Elph, 1 M. & K. 195; Foster « Dawber, 1 Dr. & Sm. 172; Birchall v. Birchall, 40 Ch. Div. 436; Adams v. Adams, 64 N. H. 224; Barritt v. Silliman, 13 N. Y. 93 ; Beekman v. Bonsor, 23 N. Y. 298, 305 ; Re Robinson, 37 N. Y. 261 ; Green V. Green, 4 Redf. 357 ; Read i;. Robinson, 6 W. & S. 329. Disclaimer comes too late after conduct indicating acceptance. Conyngham v. Conyngliam, 1 Ves. 522 ; Bence v. Gilpin, L. R. 3 Ex. 76 ; Kennedy v. Wire, 80 Ala. 165. In Crewe v. Dicken, 4 Ves. 97, Lord Loughborough held that a release by a trustee to a co-trustee by way of disclaimer was ineffectual, because the release im- plied an acceptance of the trust. But Lord Eldon, in Nicholson v. Wentworth, 2 Sw. 365, declined to follow this doctrine. See, in confirmation of Lord Eldon, Hussey v. Markham, Finch, 258. If the conveyance is to several trustees and one or more, but less than all, disclaim, the rest are competent, and bound to perform the trust. Bonifant v. Greenfield, Cro. El. 80; Smith v. Wheeler, 1 Vent. 128, 2 Keb. 774, 1 Lev. 179; Small v. Marwood, 9 B. & C. 300; Adams i'. Taunton, 5 Madd. 435; Cooke v. Crawford, 13 Sim. 91 ; Browell v. Read, 1 Hare, 434 ; Cape v. Bent, 9 Jur. 653 ; Eaton v. Smith, 2 Beav. 236 ; Watson V. Pear.son, 2 Ex. 581, 594; Peppercorn v. Wayman, 5 DeG. & Sm. 2.30; White V. McDermott, 7 Ir. R. C. L. 1 ; Nicoll v. Miller, 37 111. 387 ; Putnam School v. Fi.sher, 30 Me. 523; Ratcliffe v. Sangston, 18 Md. 383; Long v. Long, 62 Md. 33; Ellis V. Boston Co., 107 Mass. 1, 13; Scull v. Reeves, 1 Green, Ch. 84 ; Re Stevenson, 3 Paige, 420 ; King v. Donelly, 5 Paige, 46 ; Re Van Schoonhoven, 5 Paige, 559 ; Jack- son V. Ferris, 15 Johns. 346; Nills v. Stevens, 4 Den. 399 ; Leggett v. Hunter, 19 N. Y. SECT. XII.] ADAMS V. ADAMS. 2SX We think that the decree of the court below was well made, and that it should be Affirmed. 445 ; Clemens v. Clemens, 60 Barb. 366 ; Zebach v. Smith, 3 Binn. 69 j Bailey's Peti- tion, 15 R. I. 60; DeSaussure v. Lyon, 9 S. Ca. 492. But if an obligation is executed to two or more obligees upon certain trusts, a dis- claimer by one of the obligees will not vest the title to the obligation in the others. The obligation is, therefore, in such a case not enforceable at law. Wetherell v. Langston, 1 Ex. 634. But equity would not permit the trust to fail. See Fletcher v. Fletcher, 4 Hare, 67. — Ed. 232 CLARK V. CL^VRK. [CHAP. L SECTION XIII. Notice to the Cestui que Trust. EMRI CLARK v. ANN CLARK and Trustee. In the Supreme Judicial Court, Massachusetts, November, 1871 [Reported in 108 Massachusetts Reports, 522. J Trustee process. The defendant was defaulted in the Superior Court, and the Boston Five Cents Savings Bank, who were summoned as trustees, made answer that they had in their possession $628, de- posited by Betsey Abbott and credited on their books to her as trustee for the defendant. William H. Carter, administrator of the estate of Betsey Abbott, appeared as claimant. The issue between the plaintiff and the claimant was heard, without a jury, by Pitmayi, J., and re- ported for the determination of this court substantially as follows. Betsey Abbott deposited in the bank money belonging to herself, in the name of " Betsey Abbott, trustee for Ann Clark," and afterwards died, having retained the book of deposit until her death, and until then the defendant, who was her half-sister, had no notice of the de- posit. A by-law of the bank, which was admitted in evidence against the objection of tlie plaintiff, provided " that no person shall receive any part of his principal or interest without producing the original book, that such payments may be entered therein." The plaintiff offered evidence of the intent of Betsey Abbott to create a trust in favor of the defendant ; but the judge ruled that, even if such intent were proved, the plaintiff could not recover, and directed judgment for the claimant. If this ruling was correct, judg- ment was to be entered accordingly, otherwise the case was to stand again for trial. A. E. Pillsbury, for the plaintiff. C. P. Judcl, for the claimant. Chapman, C. J. The case of Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, is decisive of this case.^ The money 1 This seems to be a misconception. In Brabrook v. Boston Bank, 104 Mass. 228, no real trust was intended, the deposit being nominally in trust solely for the purpose of evading a by-law of the bank which limited the amount of the deposits to the credit of any one person. The case in this respect is the same as Field v. Lonsdale, 13 Beav. 78 ; Powers v. Provident Inst., 124 Mass. 377 ; Jewett ?-. Shattuck, 124 Mass. 590 ; Park- man y. Suffolk Bank, 151 Mass. 218; Bartlett v. Remington, 59 N. H. 364; Weber v. Weber (N. Y. S. C. 1879), 21 Alb. L. J. 51 ; and Markey ;;. Markey (N. Y. C. P.), 13 N. Y. Sup. 925. See also Smith v. Speer, 34 N. J. Eq. 336. The principal case runs counter also to another class of cases. If a donor, instead of taking an obligation in his own name in trust for the donee, takes it in the name of SECT. XIII.] CLAEK V. CLARK. 233 originally belonged to Betsey Abbott, and was deposited in the bank by her ; and though she deposited it in the name of " Betsey Abbott, trustee of Ann Clark," yet she retained the book of deposit, and gave Ann Clark no notice of what she had done, nor did she know it till after Betsey Abbott's death. By one of the by-laws of the bank, no one could draw any part of the money without producing the bank- book. Even if the plaintiff could prove that she intended to create a trust, she did not do what was necessary to carry the intent into effect. Ann Clark was not a party to the transaction, and never acquired any title to the money ; and upon the death of Betsey Abbott it passed to her administrator. Judgment for the claimant. the donee, the gift is complete and irrevocable, notwithstanding the donee's ignorance of the transaction. Standing v. Bowring, 31 Ch. Div. 282, 27 Ch. D. 341 (shares) ; Holliday v. Lewis, 14 Hun, 478 (note) ; Beaver v. Beaver, 62 Hun, 194 (hank deposit) ; Smith V. Bank of Washington, 5 S. & K. 318 (shares); Bead r. Roberts, 85 \'&. 84 (shares); Langdou v. Allen, 1 \V. N. (Pa.) 395 (note); Scott c. Dickson, 108 Pa. 6 (semble, insurance policy) ; Howard v. Windham Bank, 40 Vt. 597 (bank deposit). Bnt see, contra, Ide v. Pierce, 134 Mass. 260 {semlile, bank dojiosit) ; Sherman v. New Bedford Bank, 138 Mass 581 (bank deposit) ; Scott v. Berkshire Bank, 140 Mass. 157 (semble, bank deposit) ; Branch v. Dawson, 36 Minn. 193 (bank deposit); and compare Blasdel c. Locke, 52 N. H. 238 ; Sniitli v. Savings Bank, 64 N. II. 228, 231. A trust created after the analogy of a feoffment to uses, i. e. by vesting a title in one person in trust for another, is valid and irrevocal)le, without regard to tlie knowl- edge or ignorance of the cestui (jue trust. Clavering v. t.'lavering, 2 Vern. 473 ; Smith V. Lyne, 2 Y. & C. C C. 345 ; Fletcher v. Fletcher, 4 Hare, 67 ; Paterson »;. Murphy, 1 1 Hare, 88 ; Tate v. Leithead, Kay, 658 ; Re Way's Trusts, 2 D. J. & S. 365 ; Miuot v. Tilton, 64 N. H. 371 ; (iulick v. Gulick, 39 N. J. Eq. 401 ; Meiggs r. Mciggs, 15 Hun, 453; Van Cott i'. Prentice, 104 N. Y. 45; Wadd v. Hazleton, 62 Hun. 602. It is hardly necessary to cite the following cases, showing that a trust once created is irrevocable. Petre v. Espina.sse, 2 M. & K. 496; Bill v. Cure-ton, 2 M. & K. 503; Kycroft v. Christy, 3 Beav. 238 ; Evans v. .Jennings, 6 W. R. 616 ; Andrews v. Hobson, 23 Ala. 219; Hollman v. Mc Williams, 70 Cal. 449; Gordon v. Green, 10 Ga. 534; McDonald i'. Starkey, 42 111. 442; Massey >'. Huntington, 118 111. 80; Gayhml v. Lafayette, 115 Ind 423; Wri'^'ht /•. Moody, 116 Ind. 175; Ewing r. Jones, Ind. (1892), 29 N. E. R. 1057; RidiUe v. Cutter, 49 Iowa, 547; Butler v. Miller, 15 B. Mon. 617, 626; Viney r-. Abbot, 109 Mass. 300; Sowall v. Roberts, 115 Mass. 262, 274"; Re Thnr.mon, Mass. (1891), 29 N. E. R. .53 ; Ewing v. Warner, Minn. (1891), .50 N. W. R. 603; Minot ». Tilton, 64 N. H. 371 ; Isham v. Delaware Co., 3 Stock. 227; Gulick v. Gulick, .39 N. J. Eq. 401 ; Crne v. Caldwell, 52 N. J. 215 , Beekman i;. Hendrickson, N. J. Eq. (1891 ), 21 Atl. R. 567 ; Fellows i\ Ileermaiis, 4 Lans. 230 ; Meiggs v. Mciggs, \:, Hun, 453 ; Mabif; ". ilailey, 95 N. V. 206 ; Wall.ice r. Herdell, 97 N. Y. 13 ; McPlicr- Hon V. Rollins, 107 N. Y.-316; Cre.ssman's Ap., 42 Pa. 147 ; Fellow's Ap., 93 Pa. 470; Solms V. Phila. Co., 16 W. N. (Pa. C. P.) 80; Murphy v. ,S„luis, 6 Pa. Co. R. 264; Eaton V. Tilliiicha'»t, 4 R. I. 276 ; Barber v. Thomson, 49 \'t. 21.3 ; Sargent v. Baldwin, 60 Vt. 17; Howard r. Howard, 60 Vt. 302; P.rown r. Cavendish, 1 .J. & Lat. 606, 637. — Ed. 2 Stone V. Bishop, 4 Cliff. 593; Cummings v. Bramhall, 120 Mass. 554; Gerrish v. New Bedford In.ttitution, Ii!H Mass. 159, 162 (.leinble) ; Alger i'. North End Bank, 146 Mass. 418, 422 (srmhh) Arrnrtl. Forbes v. Forbes, 30 Law TimeR, 176 {sfmbk) ; Middleton v. Pollock. 2 Ch. D. 104 ; Minor y. Rogors, 40 Conn. . 512 ; Smith v. Darby, 39 Md. 268; Witzcl v. CIia|)in, 3 Bradf. 386 ; Smith i'. Lee, 2 Th. & C. 591 ; Martin v. Funk, 75 N. Y. 134 ; Willis r. Smyth, 91 N. Y. 297 ; Mabie v. Bailey, 95 N. Y. 206; Anderson r. Thomson, 38 Ilun, 234 CLARK V. CLARK. [CHAP. L 394 ; Scott v. Ilarbeck, 39 IIuu, 292; Re CoUyer, 4 Dem. 24; Ee Smith, 144 Ta. 428; Re Gaffncy, 146 Pa. 49 Contra. lu Martin v. Funlt, supra, Clmrch, C. J., delivering tlic opinion of the court, said, p. 139 : "But the Supreme Court of Massacimsetts in two cases, Brahrook i\ Five Cents Savings Bank (104 Mass. 228), and Clark v. Clark (108 id. 522), seem to hold a different doctrine. In the first case the circumstances were deemed controlling, adverse to an intent to create a trust, and in the last, which was similar in its facts to tliis, the court express the opinion that the trust was not complete, but without giving any reasons for tl\e opinion. The last decision, although entitled to great respect, is exceptional to the generrfl current of authority in this country." In Beaver v. Beaver, 53 Hun, 258, Learned, P. J., said, p. 259 : " And we must notice, in regard to Massachusetts cases, that Martin v. Funk is not in harmony with Massachusetts decisions. But it is our law, and it is thoroughly sound common sense, like everything else which came from the learned judge who wrote the opinion." — Ed. SECT. I.] megod's case. 235 CHAPTER II. THE KATUEE OF THE CESTUI QUE TRUST'S Ij^TEREST. SECTION I. His Claim is purely Equitable, except when Account ivould lie at Common Laiv. MEGOD'S CASE. Is" THE Queen's Bench, Michaelmas Term, 1585. [Reported in 4 Leonard, 225.^] A. enfeoffed B. to the intent that B. should convey the said land to such person as A. should sell it. A sold it to C, to whom B. refused to convey the land ; and thereupon he brought an action upon the case against B. And by Wkay Chief Justice and Gawdy Justice here is a good consideration, for here is a trust, and that which is a good con- sideration in the Chancery is in this case sufficient. Shute Justice was of a contrary opinion, and afterwards judgment was given for the plaintiff.^ > Godb. 64, 8. c. — Ed. •^ In Butler v. Butler (1637), 2 Sid. 21, it is said : " If one devises that his heir shall pay i*"(h a sum, for default of payment an action on the case lies. For a breach of jironiise or breach of trust is a jiroper ground of au action in the case." In Jevon v. Bush (1685), 1 Vern. 342, 344, it is reported that Lord .Jeffries, C, "cited my Lord Ilobart, who says that rtstui i/ue trust in an action on tlie case against liis trustee shall recover for a breach of trust in damages." See also 1 Eq. Ab. 384, D, n. (a). In Smith V. .Jameson, .') T. 11. 601, Bulkr, .J. said, p. 603 : "With regard to the other point made, that a breach of tru.st may not bo tlie ground of an a.ssum])sit, tliere is not an abridgment in the law which docs not contr.idict such a proposition." See also Bennett v. I'reston, 17 Ind. 2!tl ; Newiiall ». Newhall, 7 Mass. H»8. Hut see Fordo v. Iloskins (IGl.'i), 1 Kysh i;. Guerard, 4 Strob Eq. 66, 79-80. But in the absence of such a statute, the decree of the court cannot of itself divest the old trustee of the title. Hart v. Sansom, 1 10 U. S. 151, 155 ; McCann v. Randall, 147 Mass 81, 99 ; Burnley v. Stevenson, 24 Oh. St. 474 ; Davaut v. Guerard, 1 Speers, 242. The true principle is very clearly stated by Field, J., in McCann v. Randall, supra : " Independently of statute, a court of ecjuity cannot appoint a person to execute a transfer of the property of another . . . Courts of law can transfer the title to property. In real actions, they declare the title and transfer the possession ; in personal actions, by virtue of a levy of execution, they trans- fer l)oth title ami possession ; but decrees of courts of equity, exccjit wliore st.atntes have made other provisions, ojjerate only /« jiersouam. "i'liis ])ower of creating and extinguishing titles the chancellor never had nor claimed to have, except wiicn it was given him by st.atute. It is true tliat lie frequently directcil tiic sale of jtropcrty, but it was by his control over the person of tlie owner that he made the sale effective, 1. e-, when the sale had been niai infancy, tiie cliancellor was powerlesf?.' Langdell Ivi- I'l. (2d ed.) § 43, note 4 ; 3 I'om. Eq. Jur. § 1317 ; Hart v. Sansom, 110 U. S. 151." It is for want of this power, independently of statute, that the bill was dismissed in Spurr v. Scovill, 3 Cush. 578. It w;w under the statute jias.sed to suiiidy this want of jiower tiiat Felcii V. Hooper, 119 Ma.s9. 52, was decided. This distinction between tiie statutory and the inlierent power of a court of e(inity is not always Ixirno in mind. Sec Wiiito v. VVIiite, 7 (iili & J. 208, 211 ; Druiil Co. v. Oettingc^r, 5.! Md. 46, 61 ; Stewart v. Firemen's Co., M .Vld. 564 ; Abfll r. Hrown, 55 Md 217 ; Glenn v. Wiliimii.H, 60 Md. 9.'i, I I'.t ; Curtis V. Smith, 60 Biirb. 0. A new trustee appointed by an individual un(h;r tiie forms of tlio instrument creating the original trust, gets of course no title by such appointment alone. fioliler »'. Hrc.^sl^•r, 105 ill. 419,432; Nat. Bank i'. Eldridge, 115 M.-iss. 424 (comiiare Loring v. Sahsbury Mills, 125 Mass. 138) ; Bunigarner v. Cogswell, 49 Mo. 259. ReMOVAI- and API'fUNTMKNT OF Nf>N-HK«II>KNT TfjIISTEES. lifm'wtil — I'ennanent removal from the jiirisiliction is a ground for the removal of % trustee from his otfice. O'Reilly v. Aldcrsou, 8 Uare, 101 (compare lie Mais, 16 Jur. 250 FELCH V. HOOPER. [CHAP. II. 608) : Rr ■Ronshnw, 4 Ch. 783 ; Tic EiixlioM, 7 Ch. 223 ; Tic Vye, 42 L. T. Rep. 247 ; Ketclium v. Mobile Co., 2 Woods, 532 ; bloau v. rrothiugham, 72 Ala. 589 , Gale's Pet., R. M. Charlt. 109 ; Comegys v. State, 10 Gill & J. 175, 183 (semble) ; Dorsey v. Thompson, 37 Md. 25 ; Fanners' Go. v. Hnghes, 11 Hun, 130 ; Hughes v. Cliicago Co., 47 N. Y. Sup'r Ct. 531 ; Maxwell* i-. Finnic, 6 Cold. 434; Woods v. Fisher, 3 W. Va. 536. But see, rontm. Gulp's Est., 5 Pa. W. R. 582. By statute iu some jurisdictions, only residents may act as express trustees. Thompson v. Edwards, 85 Ind. 414 ; Kinker t;. Bissell, 90 Ind. 375 ; Moikel v. Green, 94 Ind. 344. Removal from the jurisdiction has been thought not to amount to inability or in- capacity where there is a power of appointing a new trustee in place of one unable to act or incapable of acting as trustee. AVithington v. Withington, 16 Sim. 104 , Re Watts, 9 Hare, 106; Re Bignold, 7 Ch. 223 (seviUe) But see, contra, Mennard v. Welford, 1 Sm. & G. 426 ; Farmer's Go. v. Hughes, 11 Hun, 130 ; and compare Millard V. Eyre, 2 Ves. Jr. 94 (absconding trustee). Appointment of non-kesident Trustees. The selection of a non-resident trustee by one having a power of appointment was sustained in the following cases, where all the beneficiaries were also resident abroad : Meinertzhageu v. Davis, 1 Coll. 335 , Re Smith, 20 W. R. 685. And the court itself appointed non-residents as trustees under similar circumstances in /?e Liddiard, 14 Ch. D. 310; Re Hill, W. N. [1874], 228; Re Drewe, W. N. [1876], 168; Re Cunard, 48 L. J. Ch. 192; Re Austen, 38 L. T. Rep. 601 ; Re Freeman, 37 Ch. D. 148; (but see Re Guibert, 16 Jur. 852) ; Ex parte Tunno, Bail. Eq. 395, But the court declined to remove resident trustees for the sake of appointing non-residents in their place in Re Long, 38 L. J. Ch. 125 ; Ex parte Robert, 2 Strob. Eq. 86. In Pennsylvania the court may appoint non-residents as trustees, but only on condition of their giving bonds. Strobel's Est., 11 Phila. 122. — Eu. SECT. II.] ANONYMOUS. 251 SECTION II. {continued). {b) Cestui que Trust cannot proceed directly against a Stranger either AT Law or in Equity. ANONYMOUS. In the Common Pleas, Michaelmas Term, 1499. [Reported in Year Book 15 Henry VII., folio 13, placitum 1.^] The first case argued by Thomas Frowyk after he was made Chief Justice was this : If the feoffor upon confidence takes animals damage feasant in the land of the feoffees who hold to his use, and by whose sufferance he occupies, may he avow the taking in his own name and in his own right, or not? All the justices of the bench said he could not avow the taking in his own right, ^ but he might make cognizance in the right of the feoffees, as their servant. For he has uo interest in tlie land, but there is simply a confidence between him and them. The feoffees may punish him at common law for his occupancy, which proves that he had no interest. And if he might take the animals damage feasant and have amends, their owner would be twice punished, for the feoffees may punish him. 1 Y. B. 1.5 H. VII 2-4 and Y. B. 1.5 H. VIT. 12-23, s. c. — Ed. 2 Anon., Keilw. 41, pi. 2; 42, pi. 7, 46, pi. 2; Finch, Law (1636), 200 Accord. Nor could the cestui que trust maintain tre.spass against a stranger. Anon., Y. B. 15 II. VII 12-23 ; Anon., Keilw. 41, pi. 2 ; 42, pi. 7 ; 46, pi. 2, s. c. The right to maintain tn.-spa-ss (juare clausula J'rcfji I seems to liave been confined at first lo freeholders and ternior.s. The action was denied to a tenant at will by Hank- ford, J. in Y. B. 11 H. IV. 90-46 ; but was conceded in Y. B IS H. VI. 1-1, and in subsequent ca-ses. A tenant at sufferance was excluded from the action in Y. B. 30 II. VI., Fitz Ab. Tresp. 10 ; Anon., Keilw. 46, pi. 2, 42, pi. 7 (see also Tailor's Case, Clayt. 55, pi. 90), but his right to the action was admitted in Ileydon's Case. 13 l?ep. 67, 69, and finally it became a rule tliat any po.ssessor might have trcspa.'ss for an entry by a wrong-doer. Graham v. Peak, 1 East, 244. Accordingly at tlie jircsent day a cpstui que trust in po.ssession may doubtless maintain the action against a stranger, a.s in Cox v. Walker, 20 Me. 504 ; Stearns v. Talnier, 10 Mot. 32 ; Sevcntli Bank v. N Y. Co., .53 N. Y. Sup'r Ct. 412. In Newhall v. Wiieelcr. 7 Mass. 189, a nstui ,/ue trust in possession was allowetl to maintain a writ of entry against one who wrongfully dispo88C8.sed him. — Ed. or,o DOE V. PEGGE. [CIIAP. IL DOE, ON THE Demise of BRISTOW, v. PEGGE. In the King's Bench, Easter Term, 1785. [Reported in 1 Term Reports, 758 note (a).] Ejectment was brought for a moiety of the manor of Winkburne, &c., under the will of D. Burnell, as one of his co-heirs. By the tes- tator's marriage settlement in 1748 two terms in trust were created: one for ninety-nine years, to secure an annuity of £200 to his mother ; the other for one thousand years, for raising ^'3,000 for his wife, in case she should have no issue ; the money to be raised out of the rents and profits, or by sale or mortgage. The testator died in 1774, having no issue, and devised all his estates to trustees and their heirs, to the use of them and their heirs in trust, after the death of his widow, who was entitled to a life-estate under the marriage settlement, for such person or persons as according to the laws of descent should be his heirs-at-law, and the heirs of their bodies, to take as tenants in com- mon, &c., if more than one. The defendant filed a bill in chancery in 1776 against all persons who were supposed to have any claim as heirs- at-law, and against the trustees, and an issue was directed under which he was found heir-at-law by descent from a daughter of a com- mon ancestor. The lessor of the plaintiff also had filed a bill in 1783, nis claim having never been known before ; but upon the death of the widow he brought this ejectment, and proved his pedigree from another daughter of the same common ancestor. At the trial the defendant set up these terms ; the testator's mother being still living, and her annuity regularly paid by the receiver appointed by the Court of Chancery ; the ^3,000 having likewise been raised for his widow, and the terra assigned in mortgage. Mr. Justice Heath, who tried the cause at the last assizes at Not- tingham, nonsuited the plaintiff, with leave to move to set aside the nonsuit, and enter a verdict for the plaintiff, if the couH should be of opinion that he was entitled to recover. Upon the motion, it was stated that the receiver had been appointed by the Court of Chancery during the life of the widow, and for such premises only as her life-estate did not extend to ; and that the lessor of the plaintiff did not desire to disturb the terms, but was ready to partake of the charge. Wilson, Dayrell, and Brovgh, for the plaintiff. Balguy and Gaily, contra.^ Lord Mansfield, C. J. An ejectment is a fictitious remedy to try the title to the possession of lands ; it is of infinite consequence that it should be adapted to attain the ends of justice, and not entangled in the nets of form. Great difficulties have arisen as to the legal form of 1 The arguments of counsel are omitted. — Ed. SECT. II.] DOE V. PEGGE. 253 passing land, from the modes of conveyancing in England since the Statute of Uses. Trusts are a mode of eonve3^ance peculiar to this country. In all other countries, the person entitled has the right and possession in himself. But in England estates are vested in trustees, on whose death it becomes difficult to find out their representatives ; and the owner cannot get a complete title. If it were necessary to take assignments of satisfied terms, terrible inconveniencies would en- sue from the representatives of the trustees not being to be found. Sir E. Northey's clerk was trustee of near half of the great estates in the kingdom ; on his death it was not known who was his heir or represent- ative. So that where a trust term is a mere matter of form, and the deeds were muniments of another's estate, it shall not be set up against the real owner. It is therefore settled that a satisfied trust shall be taken to be a trust for the benefit of the heir-at-law. A trust shall never be set up against him for whom the trust was intended. It is a mere form of conveyance. And it is admitted that, where the term is in trust for the benefit of the lessor of the plaintiff, the defendant shall not set it up in ejectment as a bar to his recovery. To go a step further : third persons may have titles, and therefore the court say, that where there is a tenant in possession under a lease, which is a bar to the recovery of the lessor, he being to recover by the strength of his own title, yet to prevent this from being turned improp- erly against the person entitled to the inheritance, whose right is not disputed by the tenant, if the lessor dispute the property only against another, and give notice to the tenant that he does not mean to disturb his tenancy, the court will never suffer the tenant to set up the lease as a bar to the recoveryv There is another distinction to be taken, whether, supposing a title superior to that of the lessor of the plaintiff exists in a third person, who might recover the possession against him, it lies in the mouth of a defendant to say so in answer to an ejectment brought against himself by a party having a better title than his own. I found this point set- tled before I came into this court, that the court never suffers a mort- gagor to set up the title of a third person against his mortgagee. For he made the mortgage, and it does not lie in his mouth to say so, thougli such third person miglit liave a right to recover possession. Nor shall a tenant wlio has paid rent, and acted as such, ever set up a superior title of a third person against his lessor, in bar of an ejectment l)rought by him ; for the tenant derives his title from him. Laying down tlicse principles, let us now see the application of them to this case. Tiiere are disputes between the plaintiff and the defendant, who are co-heirs ; as such, the plaintiff claims half of tlie property, and wishes to be ad- mitted into possession of the premises with the defendant. He jirovos his descent. Then what is the defence setup? A trust for a tiiinl person, an annuity, is set up. The plaintiff admits the charge, and says that he only claims subject to the incumbrances. The trustees do not assert their title. Then shall others be admitted to set it up? It 25-4 DOE V. ?EGGE. [CIIAP. 11. is dear that the other co-heirs shall not be permitted to dispute the title with hiin. lie ami the defendant have au equitable title as teuauts in coiuinou, and the plaintiff must recover a moiety. "WiLLES, J., concurred. AsiiiiUKST, J. In such a case as this a legal bar shall never be set up in ejectment against the justice of the case. The trustees may per- form their functions as well, after botli the parties are in possession. The old doctrine is relaxed in many instances. BuLLEK, J. I entirely agree with my Lord. An objection has been taken at the bar, that the plaintiff in ejectment must recover by the strength of his own title : the old cases certainly say so ; but for the last forty or fifty years constant exceptions to this rule have been ad- mitted. One case which is received as clear law, and is an exception to it, is that of a tenant who cannot set up the title of the mortgagee against the mortgagor ; because he holds under the mortgagor, and has admitted his title. There was a case before me at Guildhall, and I believe another upon the Oxford circuit, of the same nature, where a lessee for years had got possession of some mortgage deeds, and endeavored to set up that title against the mortgagor ; but though this showed that the plaintiff had no right to recover as against the mortgagee, yet I permitted him to do so in that instance ; and the decision was acquiesced under. It is not therefore true that an outstanding unsatisfied term is always an answer to a plaintiff in ejectment. So long ago as the time of Justice Gundry, when an outstanding satisfied term was offered by a defendant in ejectment as a bar to the plaintiff's recovery, that judge refused to admit it, saying, that there was no use in taking an out- standing term, but for the sake of the conveyancers' pockets -. since which time it has been the uniform doctrine, that if the plaintiff be en- titled to the beneficial interest he shall recover the possession. The next objection is, that this is a reversionary interest ; but that is not material ; for it has been further ruled of late years that a lessor of a plaintiff may recover in an ejectment a reversionary interest, subject to a lease and right of present possession existing in another. The annuitant is only entitled to her £200 per annum, and not to the possession itself whilst there is no default ; indeed, she does not require it. But the heir-at-law is entitled to the possession sul)ject to that charge. The annuitant, however, is in a different situation from the mortgagee ; for the latter is entitled to receive the whole in diminu- tion of the principal and interest. So that the plaintiff must have a general judgment for that part which is not in the possession of the receiver ; and as to that which is, he must enter into a rule not to disturb that possession ; submitting to the mortgage and the annuity. Mule absolute.^ 1 Lade v. Holford, Bull. N. P. 110 a; Armstrong v. Peirse, 3 Burr. 1901 {semble) ; Doe i;. Pott, Dong. 721 {semble) ; Goodright v. Wells, Doug. 777 (sembk) ; Goodtitle V. Knott, Cowp. 43, 46 (semble) Accord, SECT. II.] DOE V. PEGGE. _ 255 In Goodtitle i'. Jones, 7 T. R. 45, it is reported that " Lord Kenyon observed, that on this special verdict the question between the two litigating parties was not open to discussion ; for that it was stated in the verdict that au old term, which was created in the last century, had been from time to time assigned, and was noticed as a subsisting term so lately as m the year 1780, in the mortgage by Owen Jones to Derbyshire. That as long as that was in existence, it was an answer to an ejectment brought by any other person That though under certain circumstances a judge might direct a jury to pre- sume an outstanding satisfied term to have been surrendered by the trustee, yet if no such presumption were made, but it was stated as a fact that the term still continued, such a legal estate in the trustee must prevail in a court of law. That what was said by Lord Mansfield m Lade v. Holford, Bull. N. P. 110,' that he would not suffer a plain- tiff in ejectment to be nonsuited by a term standing out in his own trustee, or a satisfied term set up by a mortgagor against a mortgagee, but direct a jury to presume it surrendered,' must be understood with this restriction, that in either case the jury might presume the term surrendered, but that without such surrender the estate in the trustee must prevail at law, and that to the proposition so qualified he fully assented." See also, to the same effect, Hodsden v. Staples, 2 T. R. 684 ; Doe v. Sybourn, 7 T, K. 2 ; Barnes v Crow, 4 Bro. C. C. 10, 11 , Feun v. Holme, 21 How. 481; Hooper V Scheimer, 23 How. 235 , Smith v McCann, 24 How 398, 403 ; Sheirburn (,•. De Cordova, 24 How 423 ; Lincoln v. French, 105 U. S. 614; Langdon v. Sherwood, 124 U. S. 74, 85, Rouldin v Phelps, 12 Sawy. 293; Young v. Dunn, 10 Fed R. 717, Sweatt V. Burton, 42 Fed. R. 285, Colburn v Broughton, 9 Ala. 351, Williams v. Hartshorn, 30 .Ala. 21 1 ; Arnett v. Biiiley, 60 Ala. 435 , Percifull v. Piatt, 36 Ark. 456 ; Vallette c. Bennett, 69 111 632, Kirkland v. Cox, 94 HI. 400; People r. Force, 100 HI. 549, Barrett » Hinckley, 124 111. 32; Somes v. Skinner, 16 Mass. 348, 2 Schrader, 88 Mo, 20 ; Bailey r. Winn, 101 Mo. 649 ; Den r. Bordine, Spencer, 394, Brown v Combs, 5 Dutch 36, 39-41 , Wright v Douglass, 3 Barb. 5.54 , Peck t; Newton, 46 Barb. 173 ; Townshend v. Frommer, 57 N. Y Sup'r Ct. 90; Matthews u Mcl'lierson, 05 N. C. 189 (but see Grubb v. Lookabill, 100 N. C. 267); Pownal / Mvers, 16 Vt 408 {semhU); Gillett v Treganza, 13 Wi.s. 472; Eaton v. Smith, 19 Wis 537, Kinney v. De.xter, W'is 1892, 51 N. W R 82. In rennsylvania, a reshn que trust may maintain an action at law. Kennedy v. Fury, 1 Dall 72, I 'rfsbvtf-rian Congregation f Johnstnn, 1 Watts & S 9, 56, Scliool Direc- tors (,'. Dunklebcrger, 6 Barr, 29 , Tritt v. Crot/.er, 13 l"a. 451,457 , Fernsllcr '•. Seibert, 114 Pa 196. Mr Lewin, rcffrring to the principal ca-'o, says- "The doctrines advaiK'cd by Lord Mansfield in the last century were long ago overruled . . . ' Lord Mansfidil,' as Lord Redesilale observed [Shannon v. Bradstreet, 1 Sch & Lef. 66|, ' had on his mind pre- judices derived from his familiarity with the Scotch law, wliore law and c(iiiity are admini.stered in the .same conrts.' " Lewin, Trusts (9th od ), 762. Nor can a cestui r/ue trust bring an action for damages for an injury to realty held in trust. Davis v. Charle.s River Co., 11 Cush. .506. Compare Ilastcy v. Ingalls, 15 Nob. 123; Fremont Co. v. Sebriu'ht (Neb.. 1892), 51 N. W. R. 833. In the following ca.sos the j)Iaiiitiff was allowed to have ejectment althongh the dry leg.ll title was ontstamling. Mowry t;. Cuniinings, 34 F. Rep. 713 ; Doggctt r. Hart, 5 Fla. 215 [semUt) , I'etfTHon v. Orr, 12 Ga. 464 , Goodson v. Beacham. 24 Ga. 150; McLeod r. Bo/ena, 26 Ga. 177; Dudley v. Bradsliaw, 29 Ga 17, 25; Miller r. Swift, 39 Ga. 91 {ncmhle) ; Fahn i;. Bleckley. 55 Ga. HI ; Howell v. Kllsbnry, 79 Ga 475, 480; Glover v. Stamps, 73 Ga. 209; Merrill v. Dearing, 47 Minn. 137 {semhie, HUUitory) ; Murray v. Blaekledge, 71 N. Ca. 492, Johnson v. Prairie, 91 N. Ca. 159 ; H.ipkins f. Ward. 6 Muuf. 38. A cestui (jue trust of personalty cannot maintain an action against a stranger for 256 BAILEY V. NEW ENGLAND MUTUAL LIFE INS. CO. [CHAP. IL E. W. BAILEY V. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY. In the Supreme Judicial Court, Massachusetts, November, 1873. [Reported in 114 Massachusetts Reports, 177] Contract upon a policy of life insurance. Writ dated June 9, 1873. By the terms of the policy, which was dated June 28, 1860, the de- fendants, in consideration of the premium paid and to be paid an- nually " by Joseph A. Bailey, Jr.," "being the assured in tliis policy," " do insure the life of said Joseph A. Bailey, Jr., in the amount of $2500 for the term of his life." " And the said company do hereby promise to, and agree with the said assured, his executors, administrators, and assigns, well and truly to pay the said sura insured to the said assured, his executors, administrators, or assigns, sixty days after due notice and proof of the death of the said assured during the continuance and before the termination of this policy. For the benefit of his widow, if any." In the Superior Court the case was submitted upon the following agreed statement of facts : — " The defendants admit all the facts necessary to enable the plain- tiff to recover, except her right to maintain this action in her own name, and insist that no action can be brought upon said policy except in the name of the executor or administrator of Joseph A. Bailey, Jr., the insured. This question is submitted to the court, judg- ment to be entered for the plaintiff in the sum of $2500, with interest a tort. Liptrot v. Hohnes, 1 Ga. 381 (semhle) ; Martin i'. Poagnc, 4 B. Mon. 524 ; Daniel v. Daniel, 6 B. Mon. 2.30; Mitchell v. Mitchell, 35 Miss. 108 {semhle); Pollard V. Thomas, 61 Miss. 150 ; Garrett v. Carlton, 65 Miss 188 ; Myers v. Hale, 17 Mo. Ap. 204; 'but see contra, Chouteau v. Boughton, 100 Mo. 406) ; Merritt u. Windley,3 Dev. 399 ; Jones v. Strong, 6 Ired. 367 ; Puage v. Bell, 8 Leigh, 604. In Penn.sylvania an equitable title to personalty is enough to support an action for converting or injuring it. Brewer v. Fleming, 51 Pa. 326 ; Miller v. Zufall, 113 Pa. 3l7. The trustee is, of course, the proper plaintiff in actions to recover land or damages for a tort relating to land. Wooderman v. Baldock, 8 Taunt. 676 ; Coll)urn v. Broughton, 9 Ala. 351 ; Kice v. Brown, 77 111. 549 ; Hawkins v. County Comm., 2 All. 254 ; Board v. East Saginaw, 42 Mich. 257 ; Lancaster v. Coini Co., 92 Mo, 460 ; State V. IMayor, 32 N. J. 49 ; State v. Eastern Co., 36 N. J. 181 ; Walker v. Fawcett, 7 Ired. 44; Woodman v. Good, 6 Watts & S. 169; Penn. Co. v. Duncan, 111 Pa. 352, Linning v. Crawford, 2 Bail. 296 ; Rogers v White, 1 Sneed, 68. And also in actions for the conversion of or injury to personal property. White v. Morris, 11 C. B. 1015; Barker v. "Furlong, '91, 2 Ch. 172, Baker v. Washington, 5 li. & P. 142 ; Chambers v. Mauldin, 4 Ala. 477 ; Stoker v. Yerby, 11 Ala. 322 ; Parsons, V. Boyd, 20 Ala. 112 ; Ryan v. Bibb, 46 Ala. 323; McRaeny v. Johnson, 2 Fla. 520, Wynn v. Lee, 5 Ga. 21 7, 236 ; Schley v. Lyon, 6 Ga. 530 ; Meridith v Hickman, 1 A. K. Marsh. 242; Newman r. Montgomery, 6 Miss. 744; Presley v. Rogers, 24 Miss. 520; Presley v. Stribling, 24 Miss. 527 ; Lacey v. Giboney, 36 Mo. 320 ; Pace v. Pierce, 49 Mo. 393 ; Coleson f. Blanton, 3 llayw. 152 ; Hexter v. Schneider, 14 Oreg. 184 ; Hower V. Geesaman, 17 S. & R. 251 ; Ilartness v. Warren, 106 N. Ca. 427; Nixon v. Rose, 12 Grat. 425 —Ed. SECT. II.] BAILEY V. NEW EXGL.WD MUTUAL LIFE INS. CO. 257 from May 29, a. d. 1873, or for the defendants, as the court shall de- termine upon the foregoing agreed statement." ^ Judgment was order-ed for the defendants, and the plaintiff appealed to this court. F. V. Balch, for the plaintiff. D. Foster, for the defendants, ExDicoTT, J. We think the question raised in this case has been settled by the recent decisions of this court. In Burroughs i). State Assurance Co., 97 Mass. 359, it was held, on a policy payable upon the death of the assured to his executors, administrators, or assigns, for the use of the wife and children of the assured, that an assignee of the same could maintain the action, although in fact it was defended by the guardian of an infant child of tlie assured, the wife being dead. If the assured had left no wife or child, the assignee, upon recovery, would have received the whole amount to his own use ; as the assured left a child, the assignee would hold the amount recovered subject to the equitable rights of the child, which could not be determined in that suit, but might be, if necessary, in a suit brought afterwards by the cliild against the assignee. In Gould v. Emerson, 99 Mass. 154, such a suit was bro'jght by a child against an administrator who had received the amount due upon a similar policy, and judgment was for the plaintiff, on the ground that the same having been properly paid to the admin- istrator, he held it as trustee ; that the plaintiff did not claim as cred- itor, legatee, or distributee, but as cestui que trust of money in regard to which the trustee had no duty but immediate payment. The principle upon which these decisions rest is that in policies of this kind the executor, administrator, or assignee becomes a trustee under an express trust, and the legal title being in him, he can main- tain an action in his own name against the company. It therefore necessarily follows that the cestuis que trust cannot maintain such ac- tion, but must have their rights determined between themselves and the trustee in other forms of proceeding. This brings this class of trusts within the general rules governing all trusts, and renders the practice simple and uniform. To allow cestuis que trust to maintain actions in their own names might subject insurers to several suits on the same policy, or call upon them to determine who has the beneficial interest, or force them to resort to a bill of interpleader to ascertain the equi- table rights of the parties. In Campbell v. New England Insurance Co., 98 Mass. 381, a suit was brought, as in the case at bar, l)y a wife who had the entire equi- table interest, but the objection that slie could not maintain the action was not taken till the case was on trial for the third time. The court held that tlie defendants, by their previous conduct of the case, had waived the right to avail themselves of this objection, but intimated that if valid, and seasonably taken, it would have rendered the other * The statement of facts is ulightly abridged. — Ed. 17 253 MORGAN V. KANSAS PACIFIC RAILWAY CO. [ciLVr. II. grouuil of defence immaterial. See also Excbange Bank v. Rice, 107 Mass. J) 7. We think the objection valid, in this case seasonably taken, and there must be Judgment for the defendants.^ MORGAN V. KANSAS PACIFIC RAILWAY CO. Ix THE United States Circuit Couut, Southern District of New York, September 11, 1882. [Reported m 15 Federal Reporter, 55.2] Bill in equity by the holder of certain coupons attached to income bonds of the Kansas Pacific Railway Company, for an accounting and a decree of payment. The plaintiff sues " on behalf of himself and all other holders of income bonds who may show themselves entitled to relief, and who shall in due time come in and ask relief by and con- tribute to the expenses of this suit." Lewis, the trustee of the bonds, was named as defendant to the bill, but was not served with process, and did not appear in the cause. The bill averred a request upon 1 San Diego Co. v. Cal. Bank, 52 Fed. Rep. 59; Grady w. Ibach (Ala. 1891), 10 So. R. 287; Hartford Co. v. Miller, 41 Conn. 112; Equitable Society y. Smitb, 25 111 Ap. 471 , Robbins v Cheek, 32 Ind. 328; Brooking v. Clark, 2 Litt. 197; Jenkins v. Morton, 3 Mon. 28; Lovell v. Nelson, 6 J. J. Marsh. 247 ; Stowe v. Phinney, 78 Me. 244 ; Denton v. Denton, 17 Md. 403; Unity Assoc, v. Dngan, 118 Mass. 219 (xemhlc) ; riynu V. Mass Assoc, 152 Mass. 288, 289 ; Forrest i-. O'Donnell, 42 Mich. 55G ; Crosby V. Bowery Bank, 50 N. Y. Sup'r Court, 453 ; Wynne v. Heck, 92 N. Ca.414 ; Tuttle v. Catlin, 1 D. Chip. 366 ; Tolam v. Lewes, 1 Leigh, 436 ; Garland v. Jacobs, 2 Leigh, 651 ; Poage v. Bell, 8 Leigh, 604 Accord. McComas v. Covenant Co., 56 Mo. 573, contra. The anomalous doctrine which per- mits an undisclosed principal to sue on contracts made with the agent is objectionable because the principal is, in truth, a cestui que trust and not a party to the contract. The right of tlie trustee to sue on a contract held in trust is universally acknow- ledged, Moore v. Penn, 5 Ala. 135 ; AVinters v. Rush, 34 Cal. 136 ; Keyser );. P'endall, 5 Mack. 47; Treat v. Stanton, 14 Conn. 445, 454 {semhie) ; Robinson v. Jing, 22 Fla. 321 ; Ponder i'. McGruder, 42 Ga. 242 ; Weaver v. Trustees, 28 Ind. 112; Dix v Akers,, 30 Ind. 431 ; Heavenridge v. Mondy, 34 Ind. 28 ; Musselman v. Cravens, 47 Ind. 1 , Wol- cott V. Staudley, 62 Ind. 198; Holmes v. Boyd, 90 Ind. 332; Landwerlen v. Wheeler, 106 Ind 523 ; Hall v Bryan, 50 Md. 194 ; Burroghs v. State Co., 97 Mass 359 ; Gould v. Emerson, 99 Mass. 154, 157 ; Rindge v N. E Society, 146 Mass. 286; Beardslee v. Hor- ton, 3 Mich. 560 ; Forrest v. O'Donnell, 42 Mich. 526 ; Cremer v. Wimmer, 40 Minn. 511 ; Lundberg v. N. W. Co., 42 Minn 37 ; Closer. Hodges, 44 Minn. 274; Murpheww. Sewell, 44 Minn. 530; Anderson v. Keardon,46 Minn. 185 ; Commissioners v. Walker, 7 Miss. 143; Young v. Hughes, 20 Miss. 93; Philips v. Ward, 51 Mo. 295; Snider v. Adams Co. 77 Mo. 523 ; Beck v. Haas, Mo. 1 892, 20 S. W. R. 1 8 ; Long Dock Co. v. Benl> ley, 37 N.J. Eq. 15 ; Stillwell v Hurlburt, 18 N. Y. 374; Considerant v. Brisbane, 22 N. Y. 389 ; Arcade Co. v. Wiatt, 1 Oh. C. C. 55 ; White v. Wright, 29 Oh. St. 427 ; Holladay V. Davis, 5 Oreg 40 ; Hexter v. Schneider, 14 Greg. 184 , Binney v. Plumley, 5 Vt. 500, A trustee is properly sole petitioner for a mandamus. Tyler v. Houghton, 25 Cal 26. — Ed. 2 21 Blatchf. 134 8. c. — Ed. SECT. II.] MORGAN V. KA^■SAS PACIFIC EAILWAY CO. 259 Lewis to bring this suit, but no proof of the averment was offered at the hearing. G. H. Foster, for plaintiff. J. F. Dillon and A. II. Holmes, for defendants. Blatchkord, Justice. Benjamin W. Lewis is named in the bill as a defendant. Process of subpreua is prayed against him in the bill. The bill avers that *' during the several years last past the defendant Benjamin W. Lewis has duly become sole trustee under said income mortgage," and "has been requested to bring an action for the ac- counting and injunction asked by the plaintiff hei'ein, but he has neg- lected and failed to bring such action or comply with said request, and he is, therefore, made a defendant in this action." The answer of the Kansas Pacific Railway Company admits that " during several years last past Benjamin "W. Lewis has been the sole trustee under said income mortgage, but it has no knowledge or information sutlicient to form a belief as to whether or not he has been requested by complain- ant to bring an action for the accounting and injunction asked by complainant herein." This raises an issue as to the request to Lewis. Lewis, being the trustee under the mortgage, is the proper party plaintiff in a suit of this character, and some good reason must ap- pear of record why he does not sue as plaintiff ; and, in such case, he must be made defendant. The bill recognizes this necessity, and hence makes the averments referred to. The averment as to the re- quest to Lewis is controverted, but it is not proved on the part of the plaintiff. It would be necessary to prove it, even though Lewis were served with process or appeared. It is not alleged in the bill that he is bej'ond the jurisdiction of the court, nor is that fact proved. The bill, it is true, describes Lewis as "of the city of St. Louis," and as " a citizen of the State of Missouri." But that is not sullicient. And even if it were shown that Lewis was not and could not be found within this district, to be served with process, there is nothing in sec- tion I'M of the Revised Statutes which makes it proper for the court to adjudicate tlie suit without the i)resence of Lewis, because the issue as to whether Lewis refused to sue, as stated, is one on which Lewis must be heard, and under section 737 he cannot be concluded or pre- judiced by a decree rendered in his absence. The statute cannot be construed so as to convert real parties and necessary parties into no l)arties at all. There is, in this case, no suit to adjudicate unless Lewis >)e plaintiff, or unless, if he be defendant, he be served or ap- pear. Rule 17 in equity is to the same purport. It makes it discre- tionary with the court to proceed, as does section 737. For the foregoing reason, and without deciding expressly or im- pliedly any other question raJHcd in the case, the only dis])osition that can now be made of the suit is to dismiss the bill, with costs, but without prejudice to any other suit in any coui-t.^ » Berry v. Mo. Co., 22 Fed. Rep. 6.T1 (compare Spies v. Chicago Co., 24 Rlatchf. 280); Duucaa v. Simmons, 2 St. & P. S.^G ; Wcstcru Co. v. Nolau, 48 N. X, 260 aUlEY V. BROWN. fciIAP. IL CAREY AND Others v. BROWN. In the Supreme Court, United States, October, 1875. [Reported in 92 United States Reports, 171] Appeal from tlie Circuit Court of the United States for the District of Louisiana. Jlr. Conivay Robinson for the appellants. 21)'. Thomas J. Durant for the appellee. Mr. Justice Swayne delivered the opinion of the court.^ The appellants were defendants in the court below. Tucker and Hoskins, the other defendants, declined to appeal. The case was ably argued here by the counsel upon both sides. It is insisted that the bill is fatally defective for want of parties. It alleges that the complainant was the owner and holder of the ten promissory notes which lie at the foundation of the case. In his tes- timony, he says he held the legal title to them, and that they were delivered to him by their respective owners, with power to settle and dispose of them at his discretion, and with no condition imposed but the implied one that he should account for the proceeds to those from whom he received them. The transfer created a trust. Those who transferred them were the cestuis que trust, and Brown was the trustee. The general rule is, that in suits respecting trust-property, brought either by or against the trustees, the cestuis que trust as well as the trustees are necessary parties. Story's Eq. PI. sect. 207. To this rule there are several exceptions. One of them is, that where the suit is brought by the trustee to recover the trust property or to re- duce it to possession, and in no wise affects his relation with his cestuis que trust, it is unnecessary to make the latter parties. Horsly V. Fawcett, 11 Beav. 569, was a case of tliis kind. The objection taken here was taken there. The Master of the Rolls said, "If the object of the bill were to recover the fund with a view to its admin- istration by the court, the parties interested must be represented. But it merely seeks to recover the trust-moneys, so as to enable the trustee hereafter to distribute them agreeably to the trusts declared. It is, therefore, unnecessary to bring before the court the parties 513; Re Straut, 126 N. Y. 201, 212 [semble) ; Weetjen v. Vibbard, 5 Hun, 265 Accord. A fortiori a cestui que trust cannot proceed in equity to enforce a legal demand of the trustee against a third person, unless the trustee is either unwilling or unable to pro- ceed himself at law. Rose i-. Clarke, 1 Y, & C. C. C. 534, 548 ; Re Uruguay, 1 1 Ch. T>. 372 ; Hall v. Thomjison (May, 1892), 36 Sol. J. 543 ; N. Y. Co. v. Memphis Co., 107 U. S. 205; Duncan v. Simmons, 2 St. & P. 356; Doggett v. Hart, 5 Fla. 215; Mason v. Mason, 33 Ga. 43.5 ; Harlow v. Miske, 64 Miss. 25. ^ A part of the opinion, not relating to the question of parties, is omitted. - Ed. SECT. II.] CAKEY V. BROWN. 261 beneficially interested." Such is now the settled rule of equity plead- ing and practice.^ Decree ajfirmed. 1 The doctrine of the principal case has been repeatedly affirmed. Bills to recover the trust properti/ from a stranger. Jones v. Goodchild, 3 P. VVms. 33 ; Franco v. Franco, 3 Ves. Jr. 75 ; May v. Selby, 1 Y. «& C. C. C. 235 ; Robinson v. Evans, 7 Jur. 735 ; Bridget v. Hams, 1 Coll. 72 ; Alexander v. Cana, 1 De G. & Sm. 415 ; Horsley v. Fawcett, 1 1 Beav. 565 ; Peake v. Ledger, 4 De G. & Sm. 137 ; Hughes v. Key, 20 Beav. 395 ; Bayuard v. Woolley, 20 Beav. 583, 585 ; Glegg r. Rees, 7 Ch. 71 ; Stace v. Gage, 8 Ch. D."451 ; Cooper v. Vesey, 20 Ch. Uiv. 611 ; Bifield v. Taylor, Bcatty, 91 ; Hickox V. Elliott, 10 Sawy. 415 ; Stewart v. Duffy, 53 Ind. 564, 574 ; Aben v. Brown, 55 Md. 217 ; Ashtou V. Atlantic Bank, 3 All. 217 ; Bromley v. Mitchell (Mass., 1892), 30 N. E. K. 83 ; Cook V. Wheeler. Harriugt. Ch. 443 ; Martin v. McKeynolds, 6 Mich. 70, 73 ; Triggs o. Jones, 46 Minn. 277 ; Ferguson v. Applewhite, 18 Miss. 301 ; Toronto Co. v. Chicago Co., 123 N. Y. 37 ; Re Straut, 126 N. Y. 201 ; Female Ass'n v. Beekman, 21 Barb. 566 ; War- ren V. Howard, 99 N. Ca. 190; (but see Blake v. AUnian, 5 Jones, N. Ca. 407). Foreclosure bills. Shaw v. R. R. Co., 100 U. S. 605 ; Richter v. Jerome, 123 U. S. 233; Hall v. Sullivan Co. (U. S. C. Ct.), 21 Law Reporter, 138; Campbell v. R. R.Co., 1 Woods, 368; Swift v. Stebbins, 4 St. & P. 447 ; Land Co. v. Peck, 112 111. 408, 435 ; Riuker v. Bissell, 90 Ind. 375; Shaw v. Norfolk Co., 5 Gray, 162; Sill v. Ketclmm, Harringt. Ch. 423; Adams i-. Bradley, 12 Mich. 346; Moulton r. Haskell (Minn., 1892), 52 N. W. R. 960; Hays v. Gallon Co., 29 Oh. St. 330; West v. Morris, 2 Di.sney, 415. Redem/ition hills. Mills v Jennings, 13 Ch. Div. 611, 6 App. Cas. 698, 710; Boyden v. Partridge, 2 Gray, 190. Bill for specif c jierfonnunce. Potts v. Thames Co., 15 Jur. 1004. Bill to restrain a tort to realti/. Smith v. Portland, 30 Fed. Rep. 734. Bill to eslaUish title under Burnt Becords Act. Harding v. Fuller (111 , 1892), .30 N. E. R. 1053. • The opposite rule prevails in a few jurisdictions. Bills to recover the trust fund. Stone v. Hale, 17 Ala. 557 ; Stillwell v. IMcNeely, 1 Green, Ch. 305. Foreclosure bills. Large v. Van Doreu, 1 McCart. 208 ; Allen v. Roll, 25 N. J. Eq. 163 ; Jewell v. West Orange, 36 N. J. Eq.403 ; Tyson v. Applegate, 40 N. J. Ef|. 305; unless the beneficiaries are too numerous to be conveniently joined as plaintiffs, a.** in Willink v. Morris Co., 3 Green, Ch. 377 ; Williams v. N. J. Co., 25 N. J. Eq. 13. Bill to enjoin a prejudicial sale. Ex parte Mackay, 8 S. Ca. 48. It follows from the decision in the principal case tliat the juri.sdiction of tlic United States cv*urt.s depends upon the citizeiisliip uf tlie trustee, and not upon tliat of the cpslu) que trust. Coal Co. v. Blatchford, 11 Wall. 172 {fstvihlt) ; Knapp v. ]{. M. Co., 20 Wall. 117, 123; New Orleans v. Gaines, 138 U. S. 595, 606; but see contra, Banigan v. Worcester, 30 Fed. Rep. 392. In Hall ?'. Harris, 11 Tex. 300, it was held tli.it no objection could bo m;ido to tho ]oinder of a cestui ijue trust as plaintiff. But in Cooper v. Vcscy, 20 Ch. Div. 611, the Court would not permit a cestui que trust, who was improperly made a co-plaintiff, to recover his coBt.'< from the unsuccessful defendant. WUKN CKHTI'I iiW. TUrST NKKI) NOT IlK A fO-DKFENDANT. Whenever the trustee adequately represents tho cestui que trust tho latter need not be made a party defendnnt to a suit in cipiity. Hills to deprive the truster of the trust-res. Andrew v. Cocipcr, 45 Ch. 1). 444 ((H.'^ajiproving of Clo^'-g (.-. I{()wl;ind,3 l'',(|. .'{68) ; Kcrri- Bon V. Stewart, 93 U. S. 155 ; Vcttorlein v. Barnes, 124 U. S. 169, 45 Fed. Hrqt. 741 ; Bcils V Illinois Co., 1.13 TT. S. 290; Short w. Magrudcr (IT. S. C. Ct., Va., 1HH5), 2. 266 ANONYMOUS. [CHAP. II. SECTION II. (contiimed). (c) A Cestui que Trust op an Obligation cannot Discharge the Obligor. PARKER V. TENANT. In the Queen's Bench, Michaelmas Term, 1561. [Reported in JetiUns, Century Cases, 221, ptacitum 75] A. MAKES an obligation to B. for the use of C. A seals ; A., B., and C. being at the time of sealing it at one place ; A. puts the obligation into the hands of C. and says : This will serve. This is a good delivery ; and tho' C. afterwards marries A, yet the obligation remains, and is neither extinguished nor suspended. Adjudged and affirmed m Error} ANONYMOUS. In the Common Bench, 1562. [Reported in Dalison, 38, placttum 6] In debt upon an obligation Cams, for the defendant, said that ■whereas he was indebted to one A., brother of the plaintiff, in the sum demanded, A. appointed the plaintiff to be his factor, and to receive an obligation to his use, and the defendant sealed this obligation to the plaintiff to the said use, after which A. released the defendant all actions, suits, and demands. It was held by all the judges that this •was no plea, for the obligation was made to the plaintiff, and A. had nothing to do with the action, so that it is no more than the release of a stranger; 2 and if the plaintiff himself had made the release, this would have been a bar.' The use here did not appear in the obliga- tion. T. 36 H. VIII. Broke, Obligation, 72 &c., Mes. notes, 284. 1 Cottou V. Cotton, 2 Vern. 290 Accord. — Ed. 2 Offly V. Warde, 1 Lev. 235 ; Scholey v. Mearns, 7 East, 147 ; Stevenson v. Rogers, 2 Hill, S. Ca. 291 ; Tuttle v. Catlin, 1 D. Chip. 366 Accord. But a release by the cestui que trust having the entire beneficial interest would be effectual in equity. Pratt v. Dow, 56 Me. 81 ; McBride v. Wright, 46 Mich. 265 ; Gait v. Smith, 145 Pa. 167 ; Stevenson v. Rogers, 2 Hill, S. Ca. 291 {semble); Smith v. Brown, 5 Rich. Eq. 291. — Ed. 3 Groos V. Depeham, 1 Cal. Ch. XLVIII. ; Anon. 7 T. R. 666, (cited). Equity will set aside a wrongful release if the obligor acted in bad faith. Land Co. v. Peck, 112 111. 408 , Monmouth Co. v. Hutchinson, 21 N. J. Eq. 107 ; Wilson v. Stilwell, 14 Oh. St. 464. In some jurisdictions, indeed, the common-law courts have treated such a release as a nullity. Roden v. Murphy, 10 Ala. 804; O'Reilly w. Miller, 52 Mo. 210; McClaughry V. McClaughry, 121 Pa. 477. — Ed. SECT, n.] GIBSON V. WINTER. 267 GIBSON V. WINTER and Another. In the King's Bench, May 1, 1833. [Reported in 2 Law Journal, New Series, King's Bench, 130.] Denman, C. J.' — This was an action on a policy of insurance under seal, in which policy the plaintiff was described to be interested in the subject matter, or duly authorized as owner or agent, or otherwise, and it contained a covenant of the defendants with him, which amounted to an insurance on goods, the property of Le Quesne, of Jersey, who employed the plaintiff and his partner Poiugdestre, insurance brokers and commercial agents, in London, to effect this poUcy. A loss accrued, and in July, 182y, a partial adjustment of the loss to the amount of £3,000 took place between the plaintiff and defendants. The defend- ants gave credit to the plaintiff for £1,52-1 9s., due from the plaintiff to them for premiums of insurance on ships, and property of other persons as part payment of this sum, and paid the balance of £1,475 lis. to the plaintiff. In September the plaintiff became a bankrupt, not having paid to Le Quesne the amount received by him and allowed in account, and this action was brought by Le Quesne in the name of the plaintiff to recover from the defendants the sum of £1,524 9s., on the ground that the plaintiff was authorized to account for the loss in money only, and that a paj^ment in any other way was not binding upon his principal. There were several pleas, and amongst the rest, a plea of payment, upon which the question arose. At the trial, before Lord Tenterden, at the Sittings after Trinity term, the defendants had a verdict on the ground that Le Quesne had acquiesced in, and adopted the mode of payment pursued by the plaintiff, and was bound by it. If it had depended on the propriety of the verdict, we should have tliought it right to submit the case to the consideration of another jur}', for we are by no means satisfied that the evidence proved acquiescence and adoption by Le Quesne, as he was never correctly informed of the real state of the facts. It was insisted by the counsel for the defendants, that tlie evidence proved a general agency in Poiugdestre and Gibson, and, therefore, their acts bound Le (Quesne ; but we are of opinion the verdict cannot be supported on that ground, as their general agency was not proved, and, indeed, was negatived upon the trial. The last objection is, that as the covenant was with Gibson, and he alone could sue upon it, payment to him in any mode by whicli he was luiund, would be a good payment against Lc (Quesne, and as the settU^nient witli the plaintiff bound him, it equally ])ound Le (Quesne suing in his name ; and, upon full consideration, we are of opinion that this objec- tion is valid. The plaintiff, though he sues as trustee of another, must, in a court of law, ])e treated in all respects as the party upon the re- * Only the opinion of the court is here given. — Ed. 26S GIBSON V. "WINTER. [CHAP. IL conl. If tliorc is a defence against him, there is a defence against the cestui que trust ayUo uses his name, and the plaiutiff cannot be per- mitted to say, for the benefit of another, that his own act is not bhul- ini;e of the ])urcbasor at law. But there were formerly many iimtances wlicre tlie j)iircli;i.si'r, wIki bad paiff. — 111 an action brought by tiio phiiutiff as trustee, the defendant may, at common law, plead a set-off of a debt due to him from the plaintiff as au individual. Forster c. Wilson, 12 M. & W. 191, 203 per I'arke, B. But equity will enjoin the de- fendant from relying on such a i)lca if the plaintiff's claim was known at the time of its creation to be a trust claim. Tannell v. Hurley, 2 Coll 241 ; Bodenham v. Hoskins, 2 D. M. & G. 903 ; Merser v. Graves, L. R. 7 Q. B. 499, 504 ; Nat. Bank v. Ins. Co., 104 U. S 54 ; Hooper v. Armstrong, 69 Ala. 343 , Ilobbs v. Duff, 23 Cal. 596 ; Flour- uoy i>. Jeffersonville, 17 Ind. 169; Bundy t; Monticello, 84 Ind. 119; Davis v. Com- missioner, Morris, Iowa, 161 ; Carlisle v. Long, 1 A. K Marsh. 486; Wolfe v. Bate, 9 B. Men. 208, 211; Bourne v. Wooldridge, 10 B. Mon. 492 ; Page v. Stevens, 23 Mich. 357 , Lee v. Newell, 107 Pa. 283. See Falkland u. St. Nicholas Bank, 84 N. Y. 150. The set-off will be allowed, if the trust relation was unknown to the defendant. School District v. First Bank, 102 Mass. 174, The defendant in au action by the trustee cannot at law plead by way of set-off a debt due to him from the cestui que trust. Lane v. Chandler, 7 East, 153 (cited) ; Tucker v. Tucker, 4 B. & Ad. 745, 751, 752 (semble) ; Isberg v. Bowden, 8 Ex. 852 (overruling Bottomley v. Brooke and Rudge v. Birch, cited in 1 T. R. 621, 622) , Westoby v Day, 2 E. & B. 605, 624 ; Watkins v. Clark, 12 C. B. n. s. 277 ; Porter v. Morris, 2 Barring. 509 ; Wheeler v Raymond, 5 Cow 231 (but see s. c. 9 Cow. 295, and Caines v. Brisban, 13 Johns. 9) ; I'resident v Ogle, Wright (Oliio), 281 ; Adams V. Bliss, 16 Vt. 39. But in most jurisdictions such set-off is allowed in equity, and also as an ecjuitable bar in a common-law action. Cavendish r. Geaves, 24Beav. 163 ; Agra Bank 11. Leighton, L. R. 2 Ex. 56; Thornton v. Maynard, L. R 10 C. P. 695 , (but see Middleton i'. Pollock, 20 Eq 29, and Walker v. Brooks, 125 Mass. 241 ;) McDonald v. Bode, 20 Sol. J. 241 ; (approved in Nayler v. Ferrer, 26 W. R. 809, 810;) Corser v. Craig, 1 Wash. C. C. 424 , Campbell r. Hamilton, 4 Wash. C. C. 92, 94 ; Winchester V Hackley, 2 Cranch, 342 ; Forkner y. Dinwiddle, 3 Ind. 34 ; Henry y. Scott, 3 Ind. 412 ; Jones f. Hawkins, 17 Ind. 550; Waddle «;. Harbeck, 33 Ind. 231 ; Swindell v. Richey, 41 Ind. 281; Heavenridge v. Mondy, 49 Ind. 434; W^ulschner v. Wells, 87 Ind. 71 ; (but see Stevens v. Songen, 14 Ind. 342,) Ward v. Martin, 3 Mon. 18; Sheldon v. Kendall, 7 Cush. 217 ; Chandler v. Drew, 6 N. H. 469; Felsenthal v. Hawks (Minn. 1892), 52 N. W. R. 528; Driggs r. Rockwell, 11 Wend. 504; Wolf v. Beales, 6 S. & R. 242 ; Graphic Co. v. Marcy, 12 Phila. 218 ; (but see, contra, First Bank v. Mason, 95 Pa. 113 ; Citizens' Bank v. Alexander, 120 Pa. 113). The defendant is not entitled at law to set off a debt due from the plaintiff to a third person as trustee for the defendant. Wake v. Tinkler, 16 tlast, 36; Reeves v. Hatkinson, 2 Penningt. 751. But such set-off is allowed in e<[uity, if eijuity has juris- diction on other grounds, Clark v. Cort, Cr. & Ph. 154 ; and is now allowed as an equit- able plea. Cochrane v. Green, 9 C. B. "n. s. 448 ; Elkin v. Baker, 11 C. B. n. s. 526; £x parte Morier, 12 Ch. D. 491 ; (but see Middleton v. Pollock, 20 Eq. 29 ; ) Hoffman V. Zollinger, 39 Ind. 461 ; Commw. v. Phoenix Bank, 11 Met. 129, 136 ; Ashhy y. Carr, 40 Miss. 64; Hunt v. Shackleford, 55 Miss. 94; Pollard v. Thomas, 61 Miss. 150; Wright V. Cobleigh, 23 N. H. 32; Tuttle v. Bebee, 8 Johns. 152; Compty v. Aiken, 2 Bay, 481. A defendant would be entitled at law to setoff the plaintiff's debt to him as trastee. Forster v. Wilson, 12 M. & W. 191, 203. But the rule isotherwi.se in bankruptcy. Fair V. M'lver, 16 East, 130; Wilson v. Forster, 12 M. & W. 191 ; Re Lane, 305 ; and pre- sumably in most jurisdictions the application of equitable principles would defeat the legal set-off to-day. — Ed. SECT. T:.1 WYCH v. east INDIA COMPANY. 271 SECTION n. (conti7iued). {d) When Cestui que Trust's Interest in the Trust-res is forfeited by THE Trustee's Laches. WYCH V. EAST INDIA COMPANY. In Chancery, before Lord Talbot, Trinity Term, 1734. [Reported m 3 Peere Williams, 309.] The East India Company were bound by contract to make an allow- ance of two rupees per cent, to the plaintiff's intestate, for which the plaintiff, the administrator de bonis non of his father, brought a bill. The intestate, with whom the company made the contract, was then beyond sea, and there died, leaving an infant son of tender years. Upon the death of the intestate, administration was granted to A. until the said son should come to twenty-one, ad usuvi et commodum of the infant, who at that time was about years of age. The administrator in trust for the infant never commenced any suit on this contract ; but the son within six years after his attaining twenty-one, brought this bill against the company, who pleaded the statute of limitations, viz. that the cause of action did accrue above six 3'ears before the suit commenced, . Whereupon it was argued, that as the time did not run against the father, with whom the contract was made, because he was beyond sea, and died there ; so after the death of the father the son was an infant, and ought not to be barred or prejudiced by the neglect or default of his trustee, the administrator during his minority. Lord Chancellor. The administrator duriug the infancy of the plaintiff had a right to sue ; and though the cestui que trust was an in- fant, yet he must be bound by the trustee's not suing in time ; for I cannot take away the benefit of the statute of limitations from the company, who are in no default, and are entitled to take advantage thereof as well as private persons ; since their witnesses may die, or their vouchers be lost. And as to the trust, that is only between the administrator and the infant, and does not affect the company. So whore there is an executor in trust for another, and tlie executor neglects to bring his action within the time prescribed by tlie statute, the cestui f/ne trust, or residuary legatee, will be barred ; therefore allow the plea.* * If the Statute of Limitations has run against a tnistee, upon any claim, real or personal, legiil or et|iiitat)lo, the cestui que trust, whether sm juris or not, is also liarrcd. Anon., 2 And. 143, Lcwollin v. Mackworth,.3 K(i, Ca. Ali. .57;>, I5arn. 445,8. c. ; Sniilt u. Acton, 2G Hr'av. 210, 21-3 (.irmhle); Spickorncll v. Holliam, Kay, 009, C".'j ; Stone i'. Stone, 5 Ch. 74 ; Holling r. Holxlay, 31 W. K. 9 ; Ilovcmlcn r. Anncslcy, 2 Sch. & Lff. fi29 ; Pentlanfl v. Stokes, 2 P.a. & Ho. 68, 74, 7T) ; Mecko v. Olplmrts, 100 U. S. 504 ; Trimhlo V. Woodhead, 102 U. S. 047 ;" llaycs v. Mclntire,45 Fed. Kcp. ."jag ; CoUiurn v. Brough- 272 LLOYD'S BANKING CO. V. JONES. [CHAP. IL LLOYD'S BANKING COMPANY v. JONES. In the Cuancery Division, Maucu 2, 3, 1885. [Reported in 29 Chancery Division, 221 ] On the 17th of November, 1875, Thomas Adams, being then en- titled to some leasehold, houses in Birmingham, deposited the leases and other title deeds with Lloyd's Banking Company, together with a memorandum signed by him, which stated that the deeds were de- posited witli the bank, and were to be retained by them, by way of a continuing security to them for any overdraft of his wife's current account. And Adams thereby undertook at his own expense, when required by the bank, to execute to them, or as they should direct, a mortgage of all his estate and interest in the premises comprised in the deeds, whicli mortgage should contain a power of sale and all usual clauses. On the 10th of November, 1876, Adams died. By his will, dated the 15th of September, 1876, he gave all his estate and effects whatsoever to his wife absolutely, and appointed her executrix. At the time of his death the deeds thus deposited remained with the bank, and after his death Mrs. Adams continued to receive credit from the bank on the security of the deposit. On the 29th of May, 1877, she married Henry Chance. On the 25th of May, 1877, in contemplation of the marriage, Mrs, Adams, with the assent of Chance, assigned the ton, 9 Ala. 351, 363 ; Nimmo v. Stewart, 21 Ala. 682 ; Bryan v. Weems, 29 Ala. 428 ; Fleming c. Gilmer, 35 Ala. 62 (semhlc) ; Moltou v. Henderson, 62 Ala. 426 ; Smith v. Gillam, 80 Ala. 296 ; Chase v. Cartwright, 53 Ark. 358 ; Marsh v. Duoley, 52 Cal. 232 ; Wilnierding v. Russ, 33 Conn. 67 ; Worthy v. Johnson, 10 Ga. 358 ; Mason v. Mason, 33 Ga. 4;55 ; Wiugficld v. Virgin, 51 Ga. 139 ; Knorr v. Raymond, 73 Ga. 749 ; Crawley v. Richardson, 78 Ga. 213; Salter v. Salter, 80 Ga. 178 ; Lane v. Nickerson, 99 111. 284 ; Diffenderfer v. Scott, (Ind.. 1892), 32 N. E. R. 87 ; Thomas v. White, 3 Litt. 177, 182 ; Couch V. Couch, 9 B. Mon. 160 ; Darnall v. Adams, 13 B. Mon. 273 ; Edwards v. Wool- folk, 17 B. Mon. 381 ; Coleman v. Walker, 3 Met. (Ky.) 65; Barclay v. Goodloe, 83 Ky.*493 ; Smith v. Smith, (Ky. 1892), 19 S. W. R. 595 ; Crook v. Glenn, 30 Md, 55 ; Weaver v. Leiman, 52 Md. 708 ; Bennett v. Williamson, 8 Ired. 121 ; Welborn v. Fin- ley, 7 Jones (N. Ca.), 228; Blake v. Allman, 5 Jones, Eq. 407; Ilerndon v. Pratt, 6 Jones, Eq 327 ; Clayton v. Cayle, 97 N. Ca. 300 ; Kingy. Rhew, 108 N. Ca. 696 ; Smilie V. Biffle, 2 Barr, 52 ; Moore i'. Barry, 1 Bail. 504 ; Pledger v. Easterling, 4 Rich 101 ; Long V. Ca.son, 4 Rich. Eq. GO, 64 (semhle) ; Tutt v. R. R. Co., 28 S. Ca.388j Williams V. Otey, 8 Humph. 563 ; Wooldridge v. Planters' Bank, 1 Sneed, 297 ; Goss v. Single- ton, 2 Head, 67 ; Watkins v. Specht, 7 Coldw. 585 ; Woodward v. Boro, 16 Lea, 678 ; Collins V. McCarty, 68 Tex. 150; Sheppard v. Turpin, 3 Grat. 373. But see, contra, Allen v. Sayer, 2 Vern. 368; Lechmere v. Carlisle, 3 P. Wms. 215; Bacon i;. Gray, 23 MLss. 140. On the other hand, if the trustee is an infant, the Statute of Limitations will not run against the cestui que trust even though the latter be su> juris. Clayton v. Rose, 87 N. Ca. 106 ; Waring v. Cheraw, 16 S. Ca. 416. See also Grimsby v. Hudnell, 76 Ga. 378. So, if a devisee in trust disclaims, so that under a statute the title vests in the Supreme Court, the Statute of Limitations will not begin to run until a new trustee is appointed. Dunning v. Ocean Bank, 6 Lans. 296. — Ed. SECT. II.] Lloyd's banking co. v. joxes. 273 leasehold property comprised in the deposited deeds to John Jones, in trust for herself until the intended marriage, and, after the solemniza- tion thereof, upon trust to permit her to use and occupy the premises, or otherwise enjoy the rents thereof for her separate use, until the sale thereof as thereinafter provided, and upon trust that the trustee should, at the sole request in writing of Mrs. Adams, notwithstanding coverture, during her life, and after her death at the discretion of the trustee, sell the leasehold premises, and should stand possessed of the residue of the proceeds of sale (after payment of costs and expenses), and also of the rents and profits of the premises, in case Mrs. Adams should not continue to occupy the same, in trust during her life to pay the same to her for her separate use. And it was further declared that, in the event of the death of Mrs. Adams before the premises should be sold, the trustee should stand possessed of the same and the rents thereof, in trust for T. J. Adams (the son of Mrs. Adams by her late husband) absolutely. No inquiry was made by the trustee about the title deeds of the property, and no notice of the settlement was given to the bank. On the- 6th of June, 1877, Mrs. Chance went with her husband to the bank, and informed the manager of her marriage (this being the first notice the bank had of the marriage), and, at the request of her and her iuisband, a balance of £133 16s. or?., which then stood to the credit of her current account, was transferred by the bank to the credit of a new account opened in the name of Henry Chance. No no- tice of the settlement was given to the bank, but the deeds were allowed to remain with them as a security for any overdraft of Chance's ac- count. In November, 1877, the bank wrote to Chance, whose account was then overdrawn, requesting him to let them have a cop}' of the will of jNIrs. Chance's former husband, that they might consider what was necessary to be done under the altered circumstances. The pro- bate of the will was sent to them, and they, after consulting their solicitors, requested ]Mr. and INIrs. Chance to sign a new memorandum of deposit of the deeds. This was done on the 26th of January, 1878, the new memorandum stating that the deeds were deposited with the bank as a continuing security to them for moneys advanced by them to Henry Chance, whether on current account or otherwise. In April, 1878, Mrs. Chance died. The deed.s were still with the bank, and at that time Chance's account was not overdrawn. He afterwards re- ceived credit from the bank on the security of the deposit. After the death of his wife, Henry Chance continued to reside in one of the lease- hold liousfs. and received the rents of the others. The son of his wife by her former marriage, who was an infant, lived with him and was maintained by him. In the year 1883 Jones was informed of some remark which Chance liad made in the market place about the prop- erty, and this induced him to make inquiry about the deeds of a Mr. King, a solicitor, who harl prepared the settlement, and in whosa custody Jones up to this time believed that the title deeds of the prop- erty were. Inquiries were made, and it was then for the first time 18 274 LLOYD'S BANKING CO. V. JONES. [CHAP. 11. discovered tluit the deeds were with tlie bank. In April, 1883, Jones gave notice of the settlement to the bank, and claimed the deeds from them. This was the first notice which the bank had of the settlement. The bank insisted that their charge was entitled to priority, and they brouglit this action against Jones and the infant T. J. Adams, claim- ing a declaration that they were entitled to a valid equitable mortgage of the property, and asking for foreclosure or sale. Chance had filed a liquidation petition. Before the trial of the action, both he and King had died. Cozens-IIanJij, Q. C, and W. Pipson Beale, for the plaintiffs. C. n. Turner, and Oover, for the defendants. Pearson, J. The question is, whether under the circumstances, the bank are entitled, although they are only equitable mortgagees, to priority over the legal estate vested in the trustee of the settlement. It is said that the infant defendant has a better equity than the trustee has. I demur to that proposition entirely. I think I should be intro- ducing a most fatal doctrine if I were to say that, when the legal estate in property is vested in a trustee under a marriage settlement, the simple fact that his cestuis qrie trustent are ignorant of what he is doing gives them a prior equity over any person who has dealings with him, and who is equally ignorant of the existence of the settlement and of the rights of the cestuis que trustent. The question is, there being two equities, and one of them clothed with the legal estate, which of them is entitled to priority. The defendants' counsel have argued that the equity of the cestui que trust is prior in time to that of the bank, be- cause they say the equity of the cestui que trust arose on the 25th of May, or at all events on the 29th of May, 1877, whereas the equity of the bank, arising under the second memorandum, did not come into esse until the 26th of January, 1878, and if the equities are equal, then qui prior est tempore potior est jure. But the first question I have to determine is whether the equities are equal.' I think, upon the authorities which have been cited, and which are so well known, that it would be pedantry for me to go over them again, the doctrine of this court has always been, that, whei-e there are equi- ties which are otherwise equal, the possession of the deeds gives priority to the person who has got them, and under these circumstances I must decide that the banking company, although only equitable mortgagees, are entitled to priority over the defendants for the an)ount due to them or tlieir security at the time when they received notice of the settlement.^ 1 The learned judge found that the trustee had been negligent, and that the Bank- ing Company had acted with rea-sonalile caution. His opinion on these points is omitted, as well as the arguments of counsel. — Ed. 2 There is an adverse criticism of this case ia 30 Sol. J. 72. — Ed. SECT, n.] IN KE BAEKER. 275 SECTION II. (continued). (e) Cestui que Tbust cannot vote as Owner of the Res. In the Matter of the Application of JACOB BARKER, relamve TO THE Election of Directors of the MERCANTILE INSUR- ANCE COMPANY OF NEW YORK. In THE Supreme Court, New York, January, 1831. [Reported in 6 Wendell, 509.] An election of directors of the Mercantile Insurance Company of New York was holden on the 10th of January, 1831. Jacob Barker demanded to vote on 1,290 shares of stock standing in his name on the books of the company, 1,255 in his own right, and 35 as trustee for his minor children. His vote was challenged, and the challenge allowed by the inspectors. Had he been permitted to vote on the whole number of shares standing in his name, Samuel Hazard, and six other persons named in the proceedings, who the inspectors certified were duly elected, would not have been elected, but seven other per- sons, for whom Jacob Barker offered to vote, would have beeu elected in their stead ; or had he been permitted to vote only on the 35 shares held by him as trustee, the effect would have been to have given a majority of votes to four individuals, who were voted for at the elec- tion as directors, and who were not returned as elected over Samuel Hazard and five other persons, who had an equal num])cr of votes, and who were returned duly elected. The objection to Barker's, voting on the 1,255 shares was, that they were hypothecated to the company to their full value. The company was incorporated in 1818. This case also presented the question whether an alien stockholder of this company has the riglit to vote by proxy, such vote having been offered and rejected by the inspectors.^ The case was argued by Jacob /inrker, in pro. per. for the motion. W. JI. Bidkley, contra. By the Court, Savage, C. J. In the case Ex parte Holmes,* we set aside an election of directors of an insurance company, because a trustee had been allowed to vote upon stock belonging to tlic conip.iny ; not because a trustee had been permitted to vote instead of the ceMui que trust, but for tiic reason that the stock in that case could not be voted upon, it being the property of the company, controlled by its ortjcers ; and we held, that neither within the meaning of the charter ' So mnch of the case as relates to this question is omitted. — Ed. ' 5 Cow. 426. 276 IN KE BARKER. [CHAP. II. of the compau)', nor of the act under which the proceedings were had, couhl it be tolerated, that the olllcers of a moneyed i«stitution should wield such stock, however obtained, to control the result of an election of directors.' 8uch is the principle settled by that case, and what was said in relation to the rights of a trustee or cestui que trust to vote on stock, standing in the name of the trustee, either generally or specially, in his representative character, was said in reference to the peculiar circumstances of the case. The court never could have doubted the right of a person to vote upon stock standing in his name, although held by him in trust for another ; the legal estate is in him, and until divested by assignment, either voluntary or compulsory, he is the only person entitled to vote.'^ Indeed, the case Ex parte Holmes admits that if the stock stands in the name of the trustee without expressing any trust, he has the right to vote. Jacob Barker, therefore, was en- titled to vote upon the 35 shares holden by him as the trustee of his minor children. He was also entitled to vote upon the 1,255 shares standing in his name in his own right, although they were hypothecated to their full 1 American Co. v. Haven, 101 Mass. 402 Accord. — Ed. 2 Newry Co. v. Moss, 14 Beav. 64, 67 {semble) ; Re Stanton Co., 16 Eq. 559 ; Pender v. Lushington, 6 Ch. D. 70; Moffat v. Farquhar, 7 Ch. D. 591 ; Moore v. Jones, 3 Woods C. C. 53, 55 (semble) ; Re Mohawk Co., 19 Wend. 135; A'e Long Island Co., 19 Wend. 37 ; Adderly r. Storm, 6 Hill, 624, 628 ; North Shore Co., 63 Barb. 556 ; Wilson v. Central Co., 9 R. I. 590 Accord. But if a trustee would, by voting against the wishes of the cestui que trust, cause irreparable mischief to the latter, a court of equity would issue an injunction to restrain the trustee from so voting. McHenry v. Jewett, 90 N. Y. 58. See also Vowell v. Thompson, 3 Cranch.C. C. 428 ; Wilson v. Central Co., 9 R.I. 590; Hoppin v. Buffum, 9 R. I. 513 "The trustee, as the legal proprietor, had originally the right of voting for coroners. Burgess v. Wheate, 1 Eden, 251 ; (a) but by 58 Geo. HI. c. 95, § 2, it was transferred to the cestui que trust in possession. This act, however, was repealed, 7 & 8 Vict. c. 92, [and the matter stood as it did before any legislative interference. Regina v. Day, 3 Ell. & Bl. 859. Coroners are not now elected by the freeholders, 51 & 52 Vict. c. 41, § 5.] " So the trustee was the person entitled at common law to vote for members of Parliament. Burgess v. Wheate, 1 Eden, 251, per Lord Northington. But by the seventy-fourth section of 6 & 7 Vict. c. 28, it is enacted, that ' no trustee of any lands or tenements shall in any case have a right to vote in any such election for or by reason of any trust estate therein, but that the cestui que trust in actual possession or in the receipt of the rents and profits thereof, though he may receive the same through the hands of the trustee, shall and may vote for the same notwithstanding such trust;' and by the fifth section of 30 & 31 Vict. 102, the right of voting is con- ferred upon persons who are seised at law or in equity of lands or tenements of the yearly value of five pounds." Lewin, Trusts (9th ed.) 247-248. See Spencer v. Har- rison, 5 C. P. D. 97. The trustee has the right of appointing the steward of a manor. Mott v. Bux- ton, 7 Ves. 201 ; and the right of presentment to an advowson ; Anon., Keilw., 160 b. ; Anon., Keilw. 47, pi. 2 ; Re Shrewsbury School, 1 M. & Cr. 632, 647. But in both cases the trustee should act in accordance with the wish of the cestui que trust. Lewin, Trusts (9th ed.), 246. — Ed. (a) And Lord Northington added for " sheriffs" (Burgess v. Wheate, I Eden, 251 ), but the election of sheriffs had been transferred from the people to the chancellor, treasurer, and judges, by 9 E. IL st. 2, before the establishment of trusts. SECT. II.] IN EE BARKER. 277 value.^ So was the decision of the court in Ex j^arte "Willcocks,^ where we held, that until the pledge was enforced, and the title made abso- lute in the pledgee, and the name changed on the books, the pledgor should be permitted to vote.^ The restriction in the Revised Statutes, that hypothecated stock shall not be voted upon, applies only to cor- porations created, renewed, or extended subsequent to 1st January, 1828. The Mercantile Insurance Company was created long previous to that date. A rule must therefore be entered declaring null and void the election of Samuel Hazard and the six other persons, who would have had a minority of votes had the vote of Jacob Barker been allowed ; and that "William Israel and the six other persons for whom Jacob Barker offered to vote, and who would have had a majority of the votes had the vote of Jacob Barker been received, are duly elected du'ectors of the company.* » Mercliants' Bank v. Cook, 4 Pick. 405; Hoppin v. Buffum, 9 R. I. 513 Ac- cord. — Ed. 2 7 Cow. 402. 8 Scholefield v. Union Bank, 2 Cranch, C. C. 115 Accord. A registered pledgee has the right to vote. Moore v. Jones, 3 Woods, 53,- 55 ; Adderly v. Storm, 6 Hill, 624, 628; Hoppin v. Buffum, 9 R. I. 513. But see contra, Miller v. Murray (Colo 1892), 30 Pac. R. 46 (statutory) ; McDaniels v. Flower Co., 22 Vt. 274. — Eu. * Meaning of " Owner " in Various Statutes. — The context must determine in each case in what sense the term " owner " is employed. B..t, in general, the word is used to designate the trustee rather than the cestui que trust. E.g.: — Trust prupcrty in the possession of the trustee does not pass, u])on his hankruptcy, to his assignees under the English Bankruptcy Acts, as property left in tlie order and disposition of the bankrupt by the consent and disposition of the true owner. Copeman V. Gallant, 1 V. Wms. 314 ; Joy v. Campbell, 1 Sch. & Lcf. 328 ; I'J.r jiarte Horwood, Mont. & M. 169 ; Mont. 24 ; E.r parte Thomas, 3 M., D. & 1). 40, 48 {semhle) ; Ex jntrte Geavcs, 8 D., M. & G. 291 ; Re Bankhead's Trust, 2 K. & J. 560 ; Great Eastern R. R. i;. Turner, L. R. 8 Cli. Ap. 149 (exj)laining and distinguisliing Ex parte Burbridgo, 1 Dea. 131 ; 8. C. sub nom. Ex jiarte Watkins, 2 Mont. & A. 348; Ex parte Ord, 2 Munt. & A. 724). In Re Bankhead's Trust, supra. Sir W. Page Wood, V.-C, said, p. 565: " If you once get- a suflicicnt declaration of trust by a jjarty wlio is the s. Cas. 632; Muir's ( a.sc, 4 App. Ca.s. .337 ; Hughes Ilallett v. Indian Co., 22 Ch. P 561 ; Lnmsilen i;. Buchanan, 4 Macq. 950; Wolf v. St. Louis Co., 15 Cal. 319 ; McKim v. (Jlenn, 66 Md. 479 ; Crease v. Bahcock, 10 Met. 525 ; Grew v. Breed, 10 Met. 569 ; /?/• Empire Bank, 1 H \. Y. 1 99 ; Stover v. Fl.ack, 30 N. Y. 64 ; Mauu u. Currie, 2 Barb. 294. — Ed. 2 17 Md. 403. 2S0 SCHWAB V. CLEVELAND. [CHAP. IL owned by persons rositlouts of this State, and not permanently located olsewhero within tiie .State, to be vahied to the owner in the county, district, or city wherein he or she may reside, or, in other words, that ' these provisions contemplate and mean the holding or ownership of the legal estate of the property to be valued, without regard to the owner- ship of the equitable title or use. Adopting this view, we have then to ascertain the location of the property for which the taxes claimed were assessed, in order to dispose of the question presented. Upon the principle that the possession of personalty follows the person owning the legal title, the mortgages, on the valuation of which the assessment of the taxes in this case was made, so far as they could be made the basis of an assessment, were beyond the jurisdiction of the appellee. The assessment, in such cases, is made upon the amount of the mort- gage debt, and not upon the value of the property mortgaged to secure it. As the basis of the assessment is the amount of the debtor's obli- gation to the creditor, the recording of a mortgage in another county or district than that of the creditor's residence, collaterally securing its satisfaction, cannot have the effect of locating the debt where the mortgage is recorded. We think the taxes sought to be recovered in this case were assessed without authority, and therefore reverse the judgment. Judgment reversed. JOHN SCHWAB, Respondent, v. FREDERICK E. CLEVE- LAND, A Trustee, etc., Appellant, and Another. In the Supreme Court, New York, December Term, 1882. [Reported in 28 Hun, 458.] Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages for injuries done to the plaintiff's premises by the escape of water from a leader upon the house or the premises owned by the defendant Cleveland, as trustee. J. Hampden Dougherty and Frederick E. Cleveland, for the appellant. Borland & Hess, for the respondent. Barnard, P. J. There is considerable conflict of authority as to the necessity of notice and request to remove a nuisance, where the same was created by a previous grantor of the owner sued. The weight of the cases seems to be in favor of notice, but against a re- quest to remove.^ 1 Conhocton Stone R. v. Buffalo, N. Y. and Erie R. R., 51 N. Y. 573. SECT. II.] SCHWAB V. CLEVELAND. 281 This case is not one, however, in which that principle can be in- voked. The evidence shows that the defendant's grantor carried the water from her roof through a pipe into the drain along or very near plaintiffs premises. It was imperfectly built, for it began to leak into plaintiff's premises soon thereafter. The premises were conveyed to defendant as trustee in 1878, and he has since owned them. Dur- ing all that time he has failed to protect the plaintiff from this leak. AVhen the owner of premises collects the water which naturally falls upon the same into one place, and conducts it from there by a pipe to his drain, he undertakes, at all hazards, that his pipe shall be both sufficient and shall continue so as to the adjoining owner. It is, therefore, no answer to the plaintiff's claim, for the defendant to say that he did not know of the leak. He was bound to do his duty by his own premises. It is the owner who is liable and never the tenant in possession unless the tenant has agreed to keep in repair.^ . . . ^ There is no force in the objection, that the defendant cannot be made liable as trustee. He owns as trustee, and owes the duty as owner to keep his pipes and drains from injuring his neighbor by rea- son of faulty construction or from being suffered to get in bad repair. Whether as between himself and the beneficiary he can collect the damage from the trust estate is a question not now before us. Upon the whole case the judgment should be affirmed, with costs.' 1 Bellows V. Sackett, 15 Barb. 96. - A portion of the opiuion foreign to trusts is omitted. — Ed. 8 Norling v. Allee, 10 N. Y. Sup. 97, 13 N. Y. Sup. 791 Accord. The cestui que tfust is not indictable for a nuisance; People v. Townsend, 3 Hill, 479, in which case the opiuion of the court is stated as follows by Brouson, J. : " The prosecu- tion must fail, for the defendants are not the owners of the property. Burnett is the owner. The admission is, 'that the title in fee was held by Moses D. Burnett as trustee for the defendants, who are cestuis que trust of the property.' If ' the title iu fee ' is in Burnett, it is of no importance that lie holds as a trustee, or that the tlefend- ants are beneficially interested in the trust. Under our code, those trusts which pass the title to the land ' vest the whole estate in tlie trustees, in law and in eciuity, sub- ject only to the execution of the trust ; ' and ' tlie persons for whose benefit tlic trust is created take no estate or interest in the lands, but may enforce tlie execution of tlie trust.' 1 R. S. 729, § 60. If the fact be, a.s was suggested on the argument, that Burnett has nothing more tlian a j)Ower in trust to sell and convey, then the defend- ants are owners of the proj)erty, and the admission on the trial that ' the title ' was ia Burnett must h.ave hajipeiiod through inadvertence. But we must take the case as it stands, and then I see no principle on which the prosecution can be maintained. When the title passos to the tnistee, ho takes the rents and profits of tlic land, and if lie uses or j)ermit8 the property to bo used in a mode which proves injurious to tho public, it is Ilia fault, and he must answer for it." Compare Eiseubrey v. I'a. Co., 141 Pa. 566. — Eu. 282 NOTK [chap, iil CHAPTER III. THE TRANSFER OF TRUST PROPERTY. SECTION I. By Act of the Party. (a) By Act op the Trustee. NOTE. In the , 1453. [Reported in Fitzkerbert's Abridgment, title Subpoena, placitum 19.] If I enfeoff a man to perform my last will and he enfeoffs another, I cannot have a subpoena against the second because he is a stranger, but I shall have a subpama against my feoffee and recover in damages for the value of the land. Per Yelverton and Wilby, clerks of the rolls, who said that if my feoffee in confidence enfeoffed another upon confidence of the same land, that I should have a subpana against the second, but otherwise when he was enfeoffed bona Jide, for then I am without remedy, and so it was adjudged in the case of the Cardinal Winchester.^ 1 Anon. (1502) Keilw. 46, b,pl. 7. Per Frowike, C. J. : " If he [the feoffee to uses] makes a feoffment over, the feoffor [i. e. the cestui que use] has no remedy against the feoffee ; the same law if he dies, the heir of the feoffee is seised as I think to his own use, for the confidence which the feoffor put in the person of his feoffee cannot descend to his heir nor pa,ss to the feoffee of the feoffee, but the latter is feoffee to his own use as the law was taken until the time of H. [E ?] IV. But if the second feoffee has notice of the use, they in the chancery will reform this by subpoena at this day ; and the heir of the feoffee upon confidence was sei.sed to his own use until the commence- ment of E. IV., and then the subpoena began against the heir and against the feoffee of the feoffee." — Ed. SECT. I.] ANONYMOUS. - 283 ANONYMOUS. In the Common Pleas, Michaelmas Term, 1522. ' \Reported in Year Book, 14 Henry VIII., folio 4, placitum 5.] One J. S. sued a replevin for his cattle tortlously taken. The defendant avowed for that J, D, and J B. were seised of a ploughland of land in their demesne as of fee to the use of R. N= by the feoffment of R. &c., and being so seised granted an annual rent out of the said ploughland to A. by the name of Alice, wife of R., to hold during the term of her life, with a clause of distress, and afterwards Alice married the defendant, before the taking, and for so much in arrear he avowed the taking, &c. To which the plaintiff said that J. D. and J. B. were seised to the use of W. N., and being so seised granted the said rent to the said Ao as alleged, she then having notice of the use, that the said J. D. and J. B. enfeoffed one Halpenny in fee, whereby he was seised, and being so seised, and Alice also being seised of the rent, the said Wo N, by his deed released all his right to the said Halpenny to him and his heirs forever absque hoc that J. D. and J. B. were seised to the use of R. N. as the avowant has alleged, &c., and prays judgment if this avowry, &c. FiTz Herbert, J. First it is to be seen to whose use the grantee shall be seised.^ I think he shall be seised to the first use, notwith- standing he had no notice, for uses are at common law and not by the statutes of Richard, and a use is but a trust and confidence which feoffor puts in his feoffee according to the estate which was at common law, for if a woman seised of land at common law will upon a commu- nication of marriage enfeoff one, if he does not perform the trust the law gives her a remed}' to recover her land back by a writ of entry causa matrimonii prtrJoriiti. And so if 1 will that my executor sell my land which is devisable, if he will not, but takes the profits to his own use, the heir may enter upon him for the non-performance of his trust, as was adjudgc(l in 38 Lib. Ass. p. 3. And then the trust is a necessity, for a dead man cannot perform his own will. But, sir, ia this present case this feoffment in trust was only a pleasure and not a necessity, but still lie is as much bound in conscience to perform his will as the executor, since he took the estate to do it, and if he de- ceives him no one will say that he does well. At the common law the feoffor had no remedy except by subpii-na, but now by the statute [1 Rich. III. c. 1, (ll'S3)] he may enti'r and make a feoffment accord- ing to Ills will, if his feoffee will not do his will. I'>ut how a use shall be changed depends upon the common law and upon the estate of the ' Only so much of thr> opinion of tlic court as rolatos to this point is given. Tiie replication was hold insufficient. Tho opinion of Brudeuel, J., is omitted. — Ed. 2?4 ANONYMOUS. [CIIAP. III. foofTce, for if I enfeoff R. to hold to him his heirs and assigns, ray trust and eonlldont-e are in him, his lieirs and assigns : and this is easily shown, for the heirs will be bound to perform the feoffor's will as much as the father, and the second feoffee as much as the first, if there is no consideration, and so it is if the feoffee suffer a recovery without n consideration. For it shall be intended since he parted with the land without consideration that he parted with it in the most proper way, i. e. to hold it as he held. Foi when an act rests in intendment and is inditferent, the law makes tne most favorable presumption, for if I see a priest and a woman together suspiciously, still as long as there is doubt whether he is domg good or evil the former is to be presumed, aud so here. And, sir, the rent is, in a manner, part of the land, and here the trust was m the land out of which the rent was granted, and this grant is without consideration, and it may be granted to the first use, wherefore it shall be so intended. And although the rent was not in esse and he had no use in it before, still he may have the use. For I take it clearly if one is seised of a seigniory in gross and grants it to his use, o the land escheats, that the feoffee shall nevertheless be seised to the first use, for it comes in lieu of the seigniory : and yet he had no use in the land before ; and so one may grant for term of life and express the use. Broke, J., to the same intent. Sir, as the feoffor puts confidence and trust, so shall be his use, and the use is in the feoffor in con- science although the feoffee has the land by the common law. And so it is not like an estate upon condition at common law, for the whole inheritance is in the feoffee, and if he dies without heir, the feoffor can- not enter ; but if he gives the land in tail and the donee dies without heir, he may enter, and every dealing with the land should be accord- ing to the wish of the feoffor. For if the feoffee acts otherwise, he is chargeable in conscience, and so is the heir of the feoffee ; and the feoffee of the feoffee, if there is no consideration ; and so is he who comes in by fine and false recovery. Scilicet, those recoveries in a writ of entry in the post. For in all these cases it is the act of the feoffee, and being without consideration the law intends that it was according tc the first use ; and, srr, conscience does not make the use, but common reason, which is common law, which is indifferent to all laws spiritual and temporal ; and, sir, although common reason says that if I enfeoff one without consideration, this shall be to my use, still this land shall be in the feoffee like any other land and take the same course : for if he has a wife and dies, his wife shall have dower to her own use, for here there is no act of the feoffee and she does not claim by the feoffee, but tha law makes her estate ; and so if he is bound in a statute merchant ; and so in case of a lord taking by escheat, for m these cases there was no act by the feoffee to deceive or defraud the feoffor, but it was done by order of the law. And, sir, the notice, as here, is the important matter, for if there was no notice there would be no use, but if he has notice, he is particeps criminis. SECT. I.] NOTE. 285 Pollard, J., to the same intent. As has been said uses were at the common law and are nothing more than confidence and trust, and the feoffee is bound to act according to the trust, otherwise he would de- ceive his feoffor, which would not be reason. And there is a diversity when there is a default in the feoffee in deceiving the feoffor, and when not, for if the feoffee die his wife shall have dower, and so in case of a statute merchant or escheat, for there is no default in feoffee, but the operation of law. But the default is in me, and although my feoffee is bound in a statute merchant, still I can enter and make a feoffment and the execution is discharged. And so if my feoffee en- dowed his wife ad ostiian ecdesice and I re-enter, it is void, for the feoffee took the estate by my feoffment, and not by law. And if the feoffees enfeoff one without consideration, it is the first use unless it be without notice ; but if upon consideration without notice the use is changed, and if with notice, though upon consideration, the first use remains ; and tjis is the diversity. NOTE. 1538. [Reported in Brooke's New Cases, March's Translation, 95.] By FiTziiERBERT, J. If the feoffees to the use of an estate tail sell the land to him that hath notice of the first use, yet the buyer shall not be seised to the first use, but to his own use, by reason of the bargain and sale, for the feoffees have the fee simple, and therefore their sale is good.^ 1 " 'T is holden that if the feoffees seised to the use of an estate tail, or other use, are im,;]pafle^ 3 Cry vT No I'.vv.MKNT oi' PiRciiASK-MoNKv nicionE NoTicK. — A i)urcliascr of the legal title is not protected from a prior equity if he receives notice of it at any time before payment of the pnrcliasf>-nir)ncy. Jf)nes \\ Stanley, 2 Eq. Ab. 685, pi. 9 ; Tourvillo v. Naish, .'J r. Wins. 307 ; Harri.son r. Southcote, 1 Atk. 538; Fitzgerald v. Bent, 2 Atk. 397 ; Story i;. Windsor, 2 Atk. 6.30 ; Hardringhani v. Nicliolls, 3 Atk. 304 ; Mnundrell V. Manndrell, U) Ves. 246, 271 ; Tnylor i,-. Baker, 5 Price, 306 ; 'Tildeslcy v. Lodge, 3 8m. &. G, 543 ; Molony v. Kernan, 2 Dr. & W. 31 ; Wormley v. Wornilcy, 8 Wlie.at. 449; Villa y. Rodriguez, 12 W.all. 323,33ft; Wood v. Mann, 1 Sumn. .506; Dufphey V. Frenaye, 5 St. & Port. 215 ; Wells v. Morrow. 3ft Ala. 125 ; Buford v. McCormick, 57 Ala. 42ft; Duncan v. Johnson, 13 Ark. 190; Kversdon v. Maydow, 65 Cal. 163 (semU/i) ; Brown v. Welch, 18 111. 343; Keys r. Test, .33 111. 316; ]5:ildwin ?■. Sager, 70 111. 503 ; Ro.soman >•. Miller, 84 111. 297 ; Slnttery v. Hafferty, 93 111. 277 , Burgett V T'axton, 99 111. 2ftR ; Gallion »>. Mcr'.iKlin, I Blackf. 91 ; Parkinson r. Ilann.a, 7 Blnckf. 400; Anderson v. Hubble, 03 Ind. 570 (.irmlilr) ; Norton v. Williams, 9 Iowa, 52ft, .532 ; Kitteridgo v. fMiapm.in, 36 low.i, 34ft ; Dodson i;. Cooper, 37 Kiia. 346 ; Moxlcy J'. Haskin, 39 Ka«. 6.53 ; Simmn v. Richard.>«on, 2 Litt. 274 ; Nantz r. McPher- Bon, 7 Mon. 597; Hardin v. Harrington, 11 Bush, 367; Thomas v. Grah.im, Walk. V- 283 NOTE. [chap, iil Ch. 117; Warner r. Whittaker, 6 Mich. 133; Blanchard v. Tyler, 12 Mich. 339; Palmer r. Williams, 24 Mich. 328; Kohl v. Lyiin, 34 Mich. 360; Minor r. Wil- louijhtn', 3 Minn. 225 ; Marsh v. Armstrong, 20 Minu. 81 ; Servia v. Beatty, 32 Miss. 52 ; Kilcrease v. Lum, 36 Miss 569 ; Halsa c. Halsa, 8 Mo. 308 ; Digby i;. Jones, 67 Mo. 104 ; Arnliolt r. Hartwig, 73 Mo. 485 ; Young v. Kellar, 94 Mo. 581 ; Clark v. Wal- dron, 39 Mo. Ap. 21 ; Patten v. Moore, 32 N. H. 382 ; Baldwin v. Johnson, Saxt. 441 ; Losey c. Simpson, 3 Stockt. 246 ; Camj)bell v. Campbell, 3 Stockt. 268 ; Ilaughwout v. Murphy, 21 N. J. Eq. 118 ; Dean i'. Anderson, 34 N. J. Eq. 49G ; Keyser v. Angle, 40 ■V^ N. J. Eq. 481 (semble); Frost v. Beekman, 1 Johns. Ch. 288; Murray v. Finster, 2 Johns. Ch. 155; Jewett v. Palmer, 7 Johns. Ch. 65; Farmers' Co. r. Maltby, 8 Paige, 361 ; Warner i--. Winslow, 1 Sandf. Ch. 430; Christie i^. Bishop, 1 Barb. Ch. 105 ; Harris v. Norton, 16 Barb. 264 ; Pickett v. Barron, 29 Barb. 505 ; Penfield v. Dunbar, 64 Barb. 239 ; Spicer r. Waters, 65 Barb. 227 ; Genet v. Davenport, 66 Barb. 412 ; Howlett v. Thompson, 1 Ired. Eq. 369 ; Richards i*. Snyder, 11 Oreg. 501 (semble) ; Wood r. Ray burn, 18 Oreg. 3 ; Yotist v. Martin, 3 S. & R. 423 ; Union Co. v. Young, I Whart. 410; Beck v. Uhrich, 13 Pa. 639 ; Juvenal v. Jackson, 14 Pa. 519 ; Snelgrove V. Snelgrove, 4 Dess. 274, 287 ; McBee v. Loftis, 1 Strob. Eq. 90 ; Bush v. Bush, 3 Strob. Eq. 131 ; Pillow v. Shannon, 3 Yerg. 508 ; Beaty v. Whitaker, 23 Texas, 526 ; Fraim v. Frederick, 32 Texas, 294 ; Hutchins i-. Chapman, 37 Texas, 612 ; Morton v. Lowell, 56 By. 693 ; Abell v. Howe, 43 Vt. 403 ; Doswell v. Buchanan, 3 Leigh, 365 ; Rorer Co. v. Trout, 83 Va. 397 ; Everts v. Agnes, 4 Wis. 343. But see, contra, Parker v. Crittenden, 37 Conn. 148. ^^^vtvuW v- ^ Cryi-^ C P.vRTiAL Payment before Notice. — A purchaser of the legal title who has been notified of a trust or other equity to which it was subject, after a partial payment can- not be compelled to surrender the legal title except upon receiving reimbursement for what he has paid before notice. Florence Co. i*. Zeigler, 58 Ala 221 ; Craft v. Russell, 67 Ala. 9; Marchbauks v. Banks, 44 Ark. 48; Baldwin v. Sager, 70 111. 503, 507 , Lewis r. Phillips, 17 Ind. 108 (semble); Rhodes v. Green, 36 Ind. 7 ; Burton v. Reagan 75 Ind. 77 (but see Dugan v. Vattier, 3 Blatchf. 245) ; Kitteridge v. Chapman, 36 Iowa, 348 ; Bush v. Collins, 35 Kas. 535 ; De Ford v. Orvis, 42 Kas. 302 ; Crockett v. Phin- ney, 33 Minn. 157 (semble) ; Servis v. Beatty, 32 Miss. 52 (semble) ; Paul v. Fulton, 25 Mo. 156, 163; Digby v. Jones, 67 Mo. 104 (semble); Dougherty v. Cooper, 77 Mo. 528," Hanghwout r. Murphy, 22 N. J. Eq., 531 (semble) ; Sargent y. Eureka Co., 46 Hun, 19 (compare Warren' r. Wilder, 114 N. Y. 209); Youst v. Martin, 3 S. & R. 423 (semUe) ; Union Co. v. Young, 1 Whart. 410 (semble) ; Juvenal v. Jackson, 14 Pa. 519 (semble) ; Beck i: Uhrich, 13 Pa. 636, 16 Pa. 499 ; Everts v. Agnes, 4 Wis. 343 (semble). See also, where the prior equity was a lien, Tourville v. Naish, 3 P. Wms. 307 ; Rajme v. Baker, 1 Giff. 241 ; Baldwin "i*. Sayer, 70 111. 503 ; Farmers' Co. i;. Maltby, 8 Paige, 361 ; Mitchell v. Dawson, 23 W. Va. 86. But see contra, Wormley v. Wormley, 8 Wheat. 421, 456 ; Doswell v. Buchanan, 3 Leigh, 365. / There is authority, indeed, for the position that a purchaser under such circum- stances may retain the property purchased subject to a lien for the amount of the un- paid purchase-money in favor of the equitable incumbrancer. Flagg v. Mann, 2 Sumn. 566 (see al.a\v Hev. 15-16 , 4 Harvard Law Rev. 309, n. 3. But see contra. Sharpies v. Adams, 32 Beav. 213. 216 ; Mumford v Stohwasser, tupru , .Maxfield v. Burton, 17 E. 300 SHROrSlIIKE, ETC. CO. r. THE QUEEN. [CHA?. Ill, THE DIRECTORS, &c. OF THE SHROPSHIRE UNION RAIL- WAYS AND CANAL COMPANY, Plaintiffs in Eukou, v. THE QUEEN, on the Pkosecution of EMjMA SARAH ROB- SON, Defendant in Ekuok. In the House of Lords, Makcii 5, 9, 1875. [Reported in Law Reports, 7 House of Lords, 496.] The Lord Chancellor (Lord Cairns).* My Lords, if it were not for the very sincere respect which I entertain for the unanimous opinion of- the learned judges of the Court of Exchequer Chamber ,"'^ I should have tlionght that this case was an extremely simple one, and that if it had fallen to be decided in one of the courts of equity, to whose adminis- tration the subject-matter more properly belongs, it could hardly have admitted of any serious argument. My Lords, the prosecutor of the mandamus in this case was Mrs. Robson, the widow of one Christopher Robson. She came before the Court of Queen's Bq^ich for the pur[)ose of obtaining a mandamus to order the directors of the Shropshire Union Railways and Canal Com- pany to transfer, in their books, into her own name, a sum of £3,712 lOs. of their consolidated stock of 1854, which was then standing in the name of (ieorge Holyoake. She came with an instrument of transfer under the seal of Holyoake executed on the 5th of May, 18GD ; but that instrument of transfer was not executed until after notice had been given to her of the infirmity of her previous title. It is very properly admitted on both sides that the case must be dealt with as if it had fallen to be decided before that document had been executed. Looking at the case as it stood before that document was executed, the facts which are clearly to be borne in mind are these : George Holy- oake had standing in his own name (for I disregard tlie history of the period during which another name was associated with his) stock of the company to the value of £3,7 1 2 1 0.s. Undoubtedly he held that stock as trustee for the defendants, and in no other character. The special case states that this stock was in his name in the year 18^3, from which time he has held it " as trustee in trust for the Shropshire Union Railways and Canal Company, and in no other capacit}' whatsoever, and thence- forth from time to time all the dividends which have become payable on the stock were invested in the names of the chairman of the company and other directors thereof, who have held the same as trustees for the company." It was perfectly legitimate that these defendants should own the stock. It is perfectly in accorda^ice with law that they should have 1 All that is 1 laterial to tlic understanding of the ca.se being contained in the judg- ment of the Lord Chancellor, the rest of the case is omitted. — Ed. 2 L. R. 8 Q. B. 420. — Ed. SECT. I.] SHROPSHIRE, ETC. CO. V. THE QUEEN. 301 had that stock, which the}' could not hold iu their own names, stand- ing for them iu the name of a trustee or iu tiie names of trustees, and in that state of things undoubtedly the position of matters was, that the defendants had the whole beneficial interest in the stock belonging to and forming part of the property of the company. Theirs was the equitable title. Holyoake was a person who held merely the legal title and the right to transfer the stock. He wa^ able, if not interfered with, to transfer the stock to any other person, and to give a valid re- ceipt for the purchase-money to any person who had not notice of the beneficial interest of the defendants. On the other hand, any person with whom Ilolyoake might deal by virtue of his title upon the register, had, or ought to have had, these considerations present to his mind. He ought to have known that although Holyoake's name appeared upon the register as the owner of these shares, and although Holyoake could present to him the certificates o'f this ownership, still it was per- fectly possible either that these shares were the beneficial property of Holyoake himself, or that they were the property of some other per- son. If he dealt merely by equitable transfer, or equitalile assignment with Holyoake,^ and if it turned out that the beneficial ownership of Holyoake was coincident and coextensive with his legal title, well and good ; his right would be accordingly, so far as Holyoake was con- cerned, complete. But if, on the other iiaud, it should turn out that Holyoake's beneficial interest was either 7iil, or was not coextensive with the whole of his apparent legal title, then I sa}'^ any person deal- ing with Holyoake,^ by way of equitable bargain or contract, should have known that he could only obtain a title which was imperfect, and would not bind the real beneficial owner. And, my Lords, he also might have known, and should have known, this, that if he desired to perfect his title, and make it entirely secure, he had the most simple means open to him, — he had only to take Ilolyoake at his word. If Holyoake represented that he was the real owner of these shares, the proposed transferee had only to go with Holyoake, or to go with the authority of Ilolyoake in his possession, to the company, ami to re- quire a transfer of those shares from the name of Ilolyoake into his own name. If he had obtained that transfer, and the company had made it, no question could have arisen, and no litigation could subse- quently have taken place. That being the state of things, your Lordshii)s have on the one hand the dirortors dearly the erinitalile owners of the stock in question. You have, on tiie other hand, Mr. Kc^bson, the person dealing with Mr. Holyoake for an equitable charge, having, in his power, if he was BO minded, to obtain a perfectly valid legal charge, which would have made his title complete. Your LordshipH have to deal with a case of a pre-exisling and uufloubtcd e(|uitabIo title, and circumstances wliicli are alleged to have defeated and to have taken away that jjre-existing ' Ilolyoake deposited the cr;rfificatf'.s with Robson as security, and covenanted to execute a legal mortgage of the shares on rcqucat. — Ed. 302 siiuorsiiiRE, etc. co. v. the queen. [chap, iil equitable title. IMy Lords, that pre-existing equitable title may be de- foatod by a supervening legal title obtained by transfer. And 1 agree with what has been contended, that it may also be defeated by conduct, by representations, by misstatements of a character which would operate and inure to forfeit and to take away the pre-existing equitable title. But I conceive it to be clear and undoubted law, and law the enforce- ment of which is required for the safety of mankind, that, in order to take away any pre-existing admitted equitable title, that which is relied upon for such a purpose must be shown and proved by those upon whom the burden to show and prove it lies, and that it must amount to something tangible and distinct, something which can have the grave and strong effect to accomplish the purpose for which it is said to have been produced. I have anxiously striven to understand what were the circumstances or what was the line of conduct which is said in this case to operate to defeat the admitted equitable title, and I have been able to discover only four matters which are stated either separately or all together to have produced that effect. My Lords, in the first place, the arguments at your Lordships' bar on behalf of the respondent appeared to me to go almost to this, that whenever you have an equitable owner who is the absolute owner, that , is to say, entitled to the whole equitable interest, such a person ought not to have a trustee at all holding the indicia of legal ownership ; or, if he chooses, for his own purpose, to have such a trustee, he must be in danger of suffering for every act of improper conduct by that trustee ; and that, therefore, if the person entitled absolutely to the equitable interest in a share in a railway company, chooses for his own purpose to have that share standing in the name of a trustee for him. he will be bound not merely by a valid legal transfer of that share by the trustee, but by any equitable dealing or contract which the trustee may choose to enter into. My Lords, that is a very serious proposition. It goes not merely to shares, but it goes to land, and to every other species of property ; and it goes to say that, whereas there is a large, well-known, recognized, and admitted system of trusts in this country, that system of trusts is to be cut down and moulded and reduced to this, that it is to be a system applicable only to infants, married women, or persons with limited interests ; and that wherever the limited interest has ceased, and the equitable interest has become entire and complete without any limit, there the equitable owner is under some measure of obligation with regard to his duty of watching his trustee, an obliga- tion which does not lie upon a limited owner. I find no authority for such a proposition, and I feel satisfied that your Lordships will not be disposed to introduce, for the first time, that as a rule of law. "What was the next circumstance founded upon? It was this, that the equitable owners, the directors, allowed this stock to stand in one name only. My Lords, is the doctrine now to be introduced for the first time, that a cestui que trust who has one trustee only is to be SECT. I.] SHROPSHIRE, ETC. CO. V. THE QUEEN. 303 bound to exercise a greater amount of vigilance or to take further precautions tlian lie would have to take if he had two or three trus- tees? ^Vhat, then, is to be said to the case of there being two or three trustees, and one becoming the survivor? Is there, then, to be a fresh dut}' cast upon the cestui que trust, which, if he does not perform, he is to be in some danger from the act of that one trustee, and in some way to be responsible for that act for which he would not be responsible if there had been more trustees than one ? I know of no authority for that proposition, and I think your Lord- ships will not be prepared to introduce now for the first time that new rule of law. What, my Lords, was the next circumstance that was founded upon? It was this, that this one trustee had previously committed a breach of trust, and that the breach of trust had been condoned by the cestuis que trust. No doubt that which was in the e3'e of any court a breach of trust had been committed. It had been observed by the cesfuis que trust, and the attention of the trustee had been called to it. He pave to the cestuis que trust a reason, which your Lordships may think to have been satisfactory or unsatisfactory, but which in point of fact was accepted by the cestuis que trust. Their confidence in the trustee does not ai)pear to have been shaken ; they evinced that confidence by allowing him to replace the stock in his sole name, and to have it in his sole name. They could have had no sinister or improper object in that, and they gave by that the strongest proof that they were satisfied that their trustee ought not to be held to have forfeited their confidence. But, my Lords, I repeat that here again is a sug- gestion that a new rule, entirely unknown in courts of equity, so far as I am aware, should be introduced ; namely, that persons claiming by a subsequent equitable title are to be allowed to displace a previous equitable title by entering upon a review of the previous conduct of the trustee who has created, or attempted to create, a second equitable title, and if they can find any previous misconduct by him, to found upon that previous misconduct some claim to displace the previous equitable title. Then, my Lords, in the fourth jdaco, this circumstance was relied upon, that tlie cestuis que trust had allowed the trustee to have posses- sion of the certificates of the shares. Now, a certificate of tiie shares or stock of a railway company is merely a solemn alliriuation under the seal of the company that a certain amount of shares or stock stands ill the naiiio of tlio individual inontifjiicd in the certificate. Un- dotihtedly tiu; stock did stand in the name of Mr. Ilolyoakc. If I am right, the directors were justified in having it in his name, and they were also justified in giving him the certificates, which did no more than tell that which any person would have found out by looking at their books ; namely, that the stork stood in his name. It is said that there was some coniph-te protection in the possessif)n of the certifi- cates, so that if the holder passed them over to another person, that 304 SHROPSHIRE, etc. co. v. the queen. [chap. hi. other person would think he obtained a good title, because no transfer could be permitted without the production of the certificates. But, my Lords, whether a transfer should be perniitted or not under tliose circumstances would be entirely wnthin the discretion of the direc- tors. Tliey Avere not bound to permit a transfer without the pro- duction of the certificates ; but, though not bound to permit a transfer, T api)rchend they would not l)e in any way answerable if the transfer should be in any case made without the production of the cei'tilicates of the shares. Therefore, my Lords, if we are to proceed, as your Lordships will proceed, upon the well-established system of trusts prevailing in this conntr}', I cannot find that there was anything done by the cestuis que trust in this case which ought to forfeit and displace that equitable title of which, as I began by saying, they were clearly possessed. The case would be entirely different if any misstatement had been made by the directors, if anything had been said by them to Mr. Rob- son, or if anything had been placed by them on the face of any docu- ment stating something which Avas not the truth, upon the faith of which Mr. Robson might have acted. That was the question which came before the court in the case of Rice v. Rice,' referred to at your Lordships' bar, and which appears to have been an authority acted upon by the Court of Exchequer Chamber. There a vendor, who un- questionably would have been held to have, in the eye of the court of equity, a lien for his purchase-money, for some purpose indorsed upon the deed a receipt for that purchase-moneys stating that it had been paid. That was just the same thing as if he had stated that he had not a lieu, or that he did not wish to insist upon a lien for the purchase- money ; and it would have been contrary to the first principles of equity, and, indeed, of common sense, to say that, after that deed had been given by him to the purchaser, and the purchaser armed with that deed had created an interest in some third party on the faith of that statement, the vendor could subsequently come forward, and, as against that third party, claim to be put in possession of that lien which by the indorsement of that receipt he had virtually surrendered. My Lords, the case of Waldron v. Sloper,^ which was decided by the same learned judge, is a case also entirely separate and distinct from the present. There the incumbrancer, wlio had no interest what- ever as a mortgagee, except by the delivery to him and the retainei' by him of the title-deeds of the propert}', chose to give up those title- deeds. It is true that he gave them up upon an allegation that they were wanted for a temporary purpose ; but in place of asking for them again, and of regaining the possession of them when that temporary purpose was satisfied, he allowed them to remain in the hands of the mortgagor for three or four years, and during that space of time, during which he was virtually leaving his security in the possession of another, that other by the possession of the title-deeds was enabled to create a 1 2 Drew. 73. 2 i Drew. 193. SECT. I.] SHROPSHIRE, ETC. CO. V. THE QUEEN. 305 fresh equitable mortgage, which was held, in cousequeuce of the laches of the first mortgagee, to have priority over the tirst. My Lords, neither of those cases has, as it appears to me, any appli- cation to the present. The present appears to me to be simply the case of an ordinary trustee holding property of the kind in question for a cestui que trust, and an incumbrance created b}' the trustee, which can only carry to that fresh incumbrancer such interest as the trustee could give. The trustee could not give an interest as against his cestui que trust, and therefore it appears to me that the incumbrancer, now repre- sented by the plaintiff in the mandamus, is not entitled to have the transfer in the company's books of the stock in question. I therefore submit to your Lordships, and move, that the decisicu of the Court of Exchequer Chamber should be reversed, and that the judgment on the motion for a mandamus should be entered for the defendants.^ 1 Pinkett v. Wright, 2 Hare, 120, 12 CI. & F. 764 s. c. ; Attorney-General v. Flint, 4 Hare, 147, 156; Mauningford v. Toleinau, 1 Coll. 670; Clack v. Holland, 19 Beav. 262, 274 [sembie) (exidaining JIartiu v. Sedgwick, 9 Eeav, 333) ; Roberts i-. Croft, 2 De G. & J. 1 ; Stackhouse v. Jersey, 1 J. & H 721 ; Cory v. Eyre, 1 D. J. & S. 149 [senible); Baillie v. McKewan, 35 Beav. 177; Newton v. Newton, L. R. 4 Ch. Ap. 143; 6 Eq. 135, s. c. {sembie) ; Waldy v. Gray, 20 Eq. 238 ; Re Morgan, 18 Ch D. 93 : New London Bank v. Brocklel)ank, 46 L. T. Rep 339 ; Nat. Bank v. Jackson, 33 Ch Div. 1 ; Huinber V. Richards, 45 Ch. D. 589 ; Ray v. Ferrell (Ind., 1891) 27 N. E. R. 159; Winborn v. Gorrell, 3 Ired. Eq. 117; Auketel v. Converse, 17 Ohio St. 11 {sembie); Wood v. Maitland, 10 I'liila. 84; 1 Leg. Chron R. 348, s. c ; Pinson v. Ivey, 1 Yerg. 296, 338 {sembie) ; Craig v. Leiper, 2 Yerg. 193; Pillow v. Shannon, 3 Yerg. 508; Briscoe v. A.sliby, 24 Grat. 454 {sembie) Accord. But see contra, St. Jolmsbury i;. MoitcU, 55 Vt. 165. ' Similarly, if one who has given an equitable mortgage upon property should after- wards .sell or mortgage the same property to another, wiio was content to advance his money without e.xactiiig a conveyance of the legal title from the mortgagor, tlie rights of the first equitable mortgagee would be jtaramount. Tyloe v. Webb, 6 Beav. 552 ; Steven.^ «. Stevens, 2 Coll. 20; Allen v. Knight, 5 Hare. 272; 11 Jur. 527 (H. L.); Roberts (• Croft, 2 De G. & J. 1 ; Hunt r. Elmos, 2 D., F. & J. 578. But if a cestui i/iie trust, or equitable nuirtgagee, or other ecjuitable claimant, by words or conduct encourages the belief that the trustee or mortgagor is the absolute beneficial owner of the property, he will of course be estopped to assert the trust (ir mortgage against .i subsequent eciuitable incuinl>rancer who has acted on the faitii of Huch words or conduct. Waldron r. Sloper, 1 Drew. 193 ; Rice v. Itice, 2 Drew. 73 ; Worthington t: German, 10 W. R. 187; Dowlo v Sanders, 2 H. & M. 242; Layard v. Maud, L. R. 4 Eq. 397 ; Hunter v. Walters, L. R. 7 Ch. Ap. 75 ; L. R. 11 Eq. 292, s. c. ; Bickertf)n v. Walker, 31 f'h. 1). 151 ; Karrand c. Yorkshire Co.,40Cii. D. 182; Stouer V. Br.iwn, 1ft Ind. 464 ; Besson v. Eveland, 20 N. J. E(| 468 ; Wilson u. llick.s, 40 Oh, -^t. 418. See aim Union Bank v. Kent, 39 Ch. Div. 238; Niveu v. Belknap, 2 Johua. 373 ; Loach v An-sbaclier, 55 Pa. 85. — Ed. 20 306 EYKE V. BURMESTER. [CIIAP. IIL T. J. EYKE, Appellant, v. J. W. BURMESTER and Others, Respondents. In the House of Louds, April 1, 4, 7, May 20, 18G2. [Reported in 10 Ilouse of Lords, 90.] The Lord Chancellor (Lord Westburt).^ My Lords, the facts material for the decision of this appeal are few, and may be shortly stated. In October, 1854, the late Mr. John Sadleir made a mortgage to the appellant, Mr. Eyre, of certain estates in Ireland, to secure the payment by Sadleir to Eyre of considerable sums of money. After- wards, and in September, 1855, John Sadleir, being very largely in- debted to the London and County Joint Stock Bank, conveyed these estates and other large estates in Ireland to the respondents, who represent the bank, to secure such debt and further advances then made by the bank to Sadleir. No mention was made by Sadleir to the respondents of the fact of the mortgage to Eyre ; but the estates in question were conveyed by Sadleir to them as free from any en- cumbrance. Before this mortgage to the bank was completed by re- gistration of the deeds in Ireland, the fact of Eyre's mortgage was discovered by the agents of the respondents, who therefore refused to allow the arrangement between Sadleir and themselves to remain nnless he obtained a release from Eyre of the estates in question. This Sadleir engaged to do ; and he prevailed upon Eyre to execute a deed of reconveyance to Sadleir liimself of these estates, in considera- tion of Eyre's receiving from Sadleir other securities of equal or greater value. The substituted securities consisted chiefly of a large number of shares in the Royal Swedish Railway, and of a promissory note for £12,000, expressed to be made and signed by Mr. Dargan. But the shares were fictitious, having been fabricated by John Sadleir for the purpose, and the promissory note was a forgery. An actual fraud of a gross and criminal character was therefore committed by Sadleir upon Eyre ; and by means of that fraud the release of Eyre's mort- gage was obtained. The release was contained in a deed dated the 5th, but executed on ■the 13th of October, 1855, By it Mr. Eyre reconveyed, granted, re- leased, and confirmed unto John Sadleir the estates comprised in the mortgage deed of October, 1854. No consideration for this reconvey- ance is expressed in the deed itself, but the real agreement between the parties is contained in a contemporaneous agreement of the Gth of October, 1855. After the execution of this deed of reconveyance to John Sadleir no further conveyance was made by Sadleir to the respondents. They were assured of the fact of the reconveyance, and the mortgage was ^ See supra, 70, n. 1 . Tlie concurring opinions of Lord Cranworth and Lord Chelms- ford are also omitted. — Ed. SECT. I.] EYRE V. BURMESTER. 307 either completed or allowed to continue. The estate so reconveyed by Eyre remained in John Sadleir until he committed suicide in the month of February, 1856. On that event, the fraud of Sadleir was discovered. These estates have been since sold by an order of the Encumbered Estates Court in Ireland. With respect to the proceeds of that sale, a contest has arisen between Eyre and the London and County Bank ; Eyre claims the benefit of his original mortgage, and insists that the reconveyance is void for fraud. The bank directors claim the benefit of the reconveyance as purchasers for valuable consideration, without notice of the fraud committed by Sadleir on Eyre, and on that ground the court below has given judgment in their favor. A purchaser for valuable consideration without notice will not be deprived by a court of equity of any advantage at law which he has fairly obtained for his protection. But in the present case the estate reconveyed by Eyre, remained in Sadleir, and was never conveyed by Sadleir to the bank. In answer to this objection, the respondents in- sist on the estoppel created by the previous conveyance. This answer would be good as against Sadleir and all claiming under him. The estoppel created by the antecedent contract aud conve3'auce by Sadleir would bind parties and privies, that is, Sadleir and those claiming un- der him. But the claim of Eyre is against Sadleir by paramount right, to recover the estate of which EjM-e had been deprived by fraud, and Sadleir acquired no interest to feed his prior contract by virtue of that fraudulent transaction. It is urged by the respondents that the reconveyance when made by Eyre enabled Sadleir to obtain money from the bank, and that the mortgage was completed on the faith of the reconveyance. The evi- dence does not appear to me to prove either of these positions. But granting that it docs, the reconve^^ance was to Sadleir and was ob- tained by him by fraud and covin. There was no contract or direct communication between the respondents and Eyre, who acted with perfect bona fides. The respondents left Sadleir to obtain the recon- veyance, and thoy can claim the benefit of it only under Sadleir, whose act they must take as it is. If (which is not proved) thoy had ad- vanced money to Sadleir on the faith of the release and their actual possession of it, but without taking a conveyance, they might have had a lien on the deed itself; l)ut their interest in the estate being equitable only would still, in my opinion, have been subject to the superior equity of Eyre.' "Whilst the estate remained in Sadleir, so long was it liable to be pursued and recovered by Eyre. But there is no Hullicient proof of any such advance by the bank ; and the only foundation of the bank's claim is the mortgage by Sadleir prior to the deed of reconveyance. That mortgage and contract would bind any ' Parkpr v. Clarkn, HO Roav. 54 (hut hco Fronch r. Hope, .'if, L. T. Rop. 57) ; Pea- body V. Kenton, 3 15.irh. (,'li. J5I, 404-5 Accord, beo also the analogous cases of bills of exchange, supra, p. 000, n. 0. — Ei>. 308 CAVE V. MACKtINZIE. [CHAP. IIL iutorost sul)soqucntly acquired by Sailleir. lUit under the recor.vey- auce he obtahied uoue ; for, as between Sadleir and Kyre, the hitter was still the owner, and might at any time during the life of Sadleir, by bill in etjuity have set aside the release, and obtained a reconvey- ance of the estate, and an interim injunction to restrain any alienation of it by Sadleir. This equitable title still remains unimpaired, and ought to be preferred to any claim by the bank. I therefore advise your Lordships that the orders of the court below be reversed, and that it be declared that the claim of the appellant to priority in respect of his mortgage, ouglit to have been allowed ; and that the case be remitted, with that declaration, to the Landed Estates Court. If the appellant has obtained any additional security under the agreement of the Gth October, 1855, not comprised in his original mortgage, that must be given up or accounted for to the bank.' CAVE V. MACKENZIE. In Chancery, before Sir George Jessel, M. R. April 20, 1877. [Reported in 46 Law Journal Reports, Chancenj, 5G4.] The defendant William Franks Mackenzie entered into a contract in writing for the purchase of a freehold farm at the price of £4,600, and afterwards assigned the benefit of the contract to his son, the defend- ant James Talfourd Mackenzie, in consideration of a debt alleged to be due from the former to the latter for his services. The claim in the action, t'o which the vendor was not a party, was for a declaration that \Villiam Franks Mackenzie entered into and signed the contract as agent for the plaintiffs, and not as purchaser on his own account, and for an injunction and damages. An issue was directed, and the jury found a verdict for the plaintiffs in terms of the above declaration. The action nowcame on upon motion for judgment. William Franks Mackenzie by his defence claimed the benefit of the Statute of Frauds, and James Talfourd Mackenzie by his defence insisted that he was a purchaser for value from his father without notice of the alleged agency. Mr. Davey and Mr. lionicr, for the plaintiffs. Mr. Chitty and Mr. Cracknall, for the defendants. The Master of the Rolls. — I must say that I am surprised at the way in which this case has been contested after the verdict of a jury. The case made by the plaintiffs is one of extreme simplicity. It is that the defendant William Franks Mackenzie was instructed by them to buy a farm for £4,600 ; that William Franks Mackenzie entered 1 Heath v. Crealock, 10 Ch. 22 ; Kelley v. Jenness, 50 Me. 455 ; Jackson v. Mills, 13 Johns 463 ; Sinclair v. Jackson, 8 Cow. 587 ; Jackson v. ITf)ffnian, 9 Cow. 271 ; Bur- chard V. Hubbard, 11 Oh, 316 ; Buckingham v. Hanna, 2 Oh. !St. 555; Gregory v. Peo- l\va, 80 Va. 355 Accord. — Ed. SECT. I.J CAVE V. MACKENZIE. 309 into the contract in his own name ; and afterwards finding that it was a beneficial contract, asserted that he was beneficial owner in equity of the estate, and denied that he was, as the jury have found he was, the agent of the plaintiffs in buying it. Furthermore it ap- pears that with a view of preventing the plaintiffs obtaining the benefit of the contract, which is still a contract at this present moment, he made an agreement with his son, the defendant James Talfourd Mac- kenzie, and in consideration of a sum of money due to him, or alleged to be due to him for his services, transferred to James Talfourd Mac- kenzie his alleged equitable mterest under the contract. James Talfourd Mackenzie claims the benefit of such interest as pur- chaser for value without notice, and prays the same benefit of this defence as if he had raised the same by plea. William Franks IMac- kenzie asks to have the benefit of the statute passed for the prevention of frauds and perjuries, that is, for the prevention of the very thing of which he has been convicted, and he has the good sense and sound judgment to instruct counsel to argue that the statute passed for that purpose is to prevent the only order which I can make against him, which is, that he pa}' the costs of the litigation occasioned by such fraud. The defences, like all legal defences, must be considered and de- cided without reference to the behavior of any party to the litigation, and I must say whether the}' are well founded in law. First of all I will deal with the defence of James Talfourd Mackenzie. He has only claimed the benefit of being a bona Jide purchaser for value without notice, and upon that the plaintiffs have very properly not takeu issue, because it is immaterial. If they have a prior claim to the estate, the question whether the whole transaction between the father and pon was a sham or not is entirely unnecessary to be tried; because in equity that which is prior in time is better in title. If the plaintiffs are right they will therefore be entitled to judgment as against James Talfourd Mackenzie. As far as he is concerned there is no doul)t about giving what they claim. Tiiey are, in fact, ptu-chasers, through William Franks Mackenzie, their agent, and to give them what they claim seems to be a matter of course.' 1 am of opinion that the defendant, William Franks Mackenzie, ought to pay the costs of the litigation. The order as to costs will go against both defendants.'^ ' Tlio rost of ihf opiiiinn, in wliirli iho Ifsvriiod jtulLjo (Iccidod that tlio ajjciit coulil not »ot lip the Statute of Frauds td defeat tlio jjlaiiitiff'H cdaiin, is omitted, as well as the arKiimciitfl of connHcl. — Kd. 2 M(.(.n! V. .lerviH, 2 Ci>\\. 00; Emiidon v. Brandon, 7 D. M. & G. 30.5; Cory r. Eyro, I I)., J. & S. 149; A'e Kurofif.ui Hank, L. U. 5 Cli. Aji. .S.^H; Cowdiey ;•. Vati; Moore /•. .Moore, 112 Ind. 140 ; AnicH r. KiclianlHon, 2'.) Minn ."J.'JO ; Turner r. Iloyle, 95 Mo. 337; Jolnmoii Co. v. Boyden, 27 Mo. Ap. 341; (lint hco amtro, finrland v. HarriHos. 17 Mo. 282 ; ) Staffonl v. Van IfenHHelaer, Hopk. 500 ; Cow. 816, 8. c; liusli i;. Lathrop, 22 N. Y. 535 (semWe) ; bcliafer v. Kcilly, 50 N. Y. 61 310 CAVE V. MACKENZIE. [cHAP. IIL {semhh) ; Trustees v. ^Vllcclo^, Gl N. Y. 88 ; Greeue v. ■Warnick,64 N. Y. 220 ; Delan- cej V. Steams, 66 N. Y. 157 ; Crano v. Turner, 67 N. Y. 437 ; Keid v Sprague, 72 N. Y. 45" (sembl.') ; Westhrook r. Glcason, 79 N. Y. 23 ; Docker i-. Kok-o, 83 N. Y 215 ; SimpsoH V Del Hoy, 94 N Y. 689 (sewWc) ; FairNaiiks v. Sargent, 104 NY. 108; (but see contra, Murray v. Lylburn, 2 Johns. Ch. 441, and Liviugstou v. Dean, 2 Johus. Ch. 470, per Mr. Chancellor Kent; James i'. Morey, 2 Cow. 247, 297;) Downer v. South Hoyaltou Bank. 39 Vt. 25 Arconl. But see contra, Nat. Bank r. Texas, 20 Wall. 72, 89 ; Porter v. King, 1 Fed. Rep. 755 {semble) ; Olds v. Cummings, 31 111 188, 192 {semble) ; Sumner v. Waugh, 6 111. 531, 538 (semble): Silverman i: Bullock, 98 III 11; Crosby v. Tanner, 40 Iowa, 136; Ohio Co. v. Rees, 2 Md. Ch. 25, 37 {semble); Bloomer v. lieudersou, C Mich. 395 (see Terry v, Tuttle, 24 Mich. 214); Hibernian Bank v. Evermau, 52 Miss. 500 (semble) ; Losey v. Simpson, 3 Stockt. 246; Woodruff v. Depue, 1 McCart. 168 ; Shannon !•, Marselis, Saxt. 413 ; lieilly i'. Mayer, 1 Beas. 55 ; Lavallette t;. Thomson, 2 Beas 274 ; Starr i*. Haskins, 26 N. J. Eq. 414 ; De Witt v. Van Sickles. 29 N. J. Eq 209 (semble) ; Grocer's Bank v. Neet, 29 N. J. Eq. 449 (semble) ; Trapha- gen V. Hand, 36 N. J Eq. 384 , (but see s. c 38 N. J. Eq. 613; and Conover v Van Mater, 18 N. J. Eq 481;) Mott v. Clarke, 9 Barr, 399 ; McConnell v. Wenrich, 16 Pa. 365 , Hendrickson's Appeal, 24 Pa. 363 ; Wethrill's Appeal, 3 Grraut, 281 , Pryor u.Wood, 31 Pa. 142 , Mnllison's Est.ate, 68 Pa. 212, 216 ; Kountz v. Kirk])atrick, 72 Pa. 376,385 ; Appeal of Milliin Bank, 98 I'a. 150; Moore *;. llolcomhe, 3 Leigh, 597 (semble) ; Gor- don V. Bixey, 76 Va. 694 ; Stoner v. Harris, 81 Va. 451 ; Kellogg v. Fanciier, 24 Wis. 21. Most of the preceding cases contra were founded upon certain dicta of Mr. Chan- cellor Kent in Jlurray v. Lylljurn, 2 Johns. Ch. 441, and Livingston v. l^ean, 2 Johns. Ch. 479 (see also James v. Morey, 2 Cow. 247, 297) ; but these dicta have been ex- pressly repudiated in New York. See cases cited supra in the preceding paragraph. Plrch.vsi; from the Fraudulent Assignee of a Chose in Action. — If the owner of a chose in action is induced by fraud to assign the same in writing, and the fraudulent assignee .os.signs in turn to an innocent purchaser, the defrauded assignor is postponed to the purchaser. Asliwin v. Burton, 32 L. J. Ch. 196 ; Colonial Bank y. Cady, 1.5 App. Cas. 267 (semble) ; Pochin v. Kobinous (Court of Session 1 8G9), 7 R. 622 ; Talty V. Freedman's Co., 93 U. S. 321 (semble) ; Cowdreyy Vaudenburgh, 101 U. S. 572 (semble) ; Adams v. District, 17 Ct. CI. 351 ; Ambrose v. Evans, 66 Cal. 74, Arnold ?'. Johnson, 66 Cal 402 ; Otis v Gardner, 105 111. 4.36 ; Campbell v. Brackenridge, 8 Blackf. 471 (semble) ; Moore v- Moore, 112 Ind. 199 ; Plummer v. People's Bank, 65 Iowa, 405 ; Eversole v. Maule, 50 Md 95; Cochran v. Stewart, 21 Minn. 435 ; Etheridge y. Galla- gher, 55 iliss. 458, International Bank v. German Bank, 71 Mo 183 ; Lea v. Turner, 89 Mo 487; Neuhoff c. O'Reilly, 93 Mo. 164, Pu';nain v. Clark, 29 N. J. Eq. 412; Grocer's Bank v Neet, 29 N. J. Eq. 449 ■ Moore v. Metropolitan Bank, 55 N. Y. 41 ; (compare Merchants' Bank v Living.ston, 74 N. Y. 223;) Combes v. Chandler, 33 Ohio St 178 ; (but see Osborn v. McClelland, 43 Oh. St. 5^84 ;) Taylor v Gitt, 10 Barr, 428 Liuuavd's App, 34 Alb. L. J. 316; (compare Leiper's App. 108 Pa. 377;) State Bank i; Hiustings, 15 Wis 75. But see contra, Cockell r. Taylor, 15 Beav. 103; Barnard y Hunter, 2 Jur. n. 8. 1213; Taliaferro v. First Bank, 71 Md. 200, 214 (semble) ; Poillon v. Martin, 1 Sandf. Ch. 5'<9; Covell v. Tradesman's Bank, 1 Paige, 131 ; Bush v. Lathrop, 22 N. Y. 535 ; Cutts •. Guild, 57 N. Y. 229. See also Donnell o. Thompson, 13 Ala. 440; Blackman p. Lehman, 63 Ala. 547. The decisions in favor of the purchaser are commonly put upon the ground that the defrauded assignor is estopped from as.serting his ownership. For a criticism of this doctrine and a suggestion of a more satisfactory ])rinci{)le leading to the same result, pee 1 Harv. L Rev. 7-8. If the first a.ssignment is procured by duress it has been thought that the intimidated assignor should prevail against the innocent purchaser. Barry v. Equitable Society, 59 N. Y. 587 (semhle) ; see also, Whitridgei?. Barry, 42 Md. 140. But this view seems unsound 1 Harv. L, Rev. 8 A mere bailment of a chose in .'iction, without a written assignment, will not preclude the bailor from reclaiming the chose in action from an innocent purchaser from a l)ailee. Midland Co v. Hitchcock, 37 N. J. Eij. 549. See alao Combs v. Hodge, 21 How. 397. — Eu. SECT. I.] CAVE V. CAVE. 311 CAVE V. CAVE. In Chancery, before Sir Edward Fry, J., April 20, 23, 1880. [Reported in 15 Chancery Division, 639.] The plaiutiflfs were the cestuis que trust under the settlement executed on the marriage of Mr. and Mrs. Frederick Cave on the 27th of Januar}^ 1863. On the 27th of November, 1867, the defendant Charles Cave was appointed trustee of the settlement, and in the year 1871 he be- came the sole trustee. The trust funds, which were at that time in his hands, consisted of £3,600 advanced on mortgage and £276 consols. Out of these sums £1,950 and £702 17s. 6d. were improperly invested in the purchase of certain lands at Wandsworth in the following manner : — Charles Cave, the trustee, received the trust moneys which had been secured on mortgage in 1872, and paid it to an account in the National and Provincial Bank in the joint names of himself and his brother Fred- erick Cave. A cheque was drawn on this account in June, 1872, by the two in favor of Frederick Cave, and the money was laid out in the pur- chase of freehold laud at AVaudsworth. Charles Cave acted in the pur- chase as trustee of the settlement and also as solicitor of himself and of Frederick Cave, and the conveyance of the property was made to Frederick Cave, and the deeds relating to the property were held by Charles Cave, the trustee of the settlement. In September, lbl2, another cheque was drawn by Charles Cave and Frederick Cave on their banking account in favor of the Accountant- General of the Court of Chancery, and the proceeds were applied in purchasing other land at Wandsworth, and the conveyance of tlie land was prei)ared by Charles Cave, and was made to Frederick Cave. The defendant riuiip Chaplin, on the 10th of Fel)ruary, 1873, ad- vanced to Frederick Cave £2,500 on a first mortgage of the land thus im|)roperly purchased, which contained absolute covenants for title by Fredcricii Cave. Charles Cave acted as tlie solicitor of Philip Chaplin in relation to tlie said advance, and stated that the land belougod to one of his hnnhers, and tlie (picstion arose wiietiier Phihp CiKii)lin iiad or iiad not constructive notice through Charles Cave who so acted as his solicitor, that tlie said lands had been purchased with and represented the trust moneys subject to the trusts of the settlcnie'iit. In October, 187."5, the defendant .lohn White advanced £1,.S00 on the same property without noti(;e of the first mortgage, and on this oc- casion Charles Cave wrote a letter to Mr. White stating that Frederick Cave had lately bought the freehold house and land at Wandsworth, which had coini)elled hiin to withdraw some of his capital from his bufiiiiess. The other defendants, W. Nichols and Ilaslam, Apploton, & Com- pany, also advanced money on subsequent mortgages of the same laud 312 CAVE V. CAVE. [CIIAP. III. to Frederick Cave, and iu 1874 Philip Chaplin, the first mortgagee, made further iulvances ou the same security. In 187J> Frederick Cave, who had been in business with George Cave, dissolved partnership upon the terms of his paying to George Cave £5,000, £2,250 of which was secured by a mortgage of the same lands. In this case, however, Mr. Justice Fry was of opinion that George Cave had actual notice of the breach of trust. In April, 187U, Frederick Cave became a bankrupt, and the plain- tiffs claimed to prove against his estate for these breaches of trust, and they also claimed priority over all the liens claimed on the laud by the several defendants, on the ground that when they took their charges they had constructive notice of the breach of trust. The defendants denied that they had notice, and relied especially ou the fraud of Charles Cave as a circumstance raising a presumption that he would not have communicated the circumstances of his fraud to the mortgagees. Cookson, Q. C, and Everitt^ for the plaintiffs. Fischer, Q. C, and TF. M. Cochran, for the first mortgagee, Philip Chaplin. Warmington, for a subsequent mortgagee.* Fry, J., stated the facts, and continued : — The question before me concerns the priority of the liens or charges claimed against the Wandsworth property. The plaintiff's right to a charge against the original purchaser of the property, Frederick Cave, is not and could not be in dispute. The question, however, arises be- tween persons who claim subsequently to the original purchase by the trustee, or rather by Frederick Cave, who obtained the money from the trustee. It appears that after the two conveyances were made to Frederick Cave in June and September, 1872, Frederick Cave, in February, 1873, mortgaged the property to the defendant Philip Chaplin for the sum of £2,500, and subsequent advances were made b}'^ Chaplin which bring the amount in all up to £5,550. "With regard to the last of those ad- vances, the sum of £550, it was subsequent to Mr. AVhite's advance, and it has not been contended that it can have priority over that. Be- tween the plaintiff and Chaplin the course of argument has been this : It has been proved that the same solicitor, Mr. Charles Cave, who was also surviving trustee, acted in the matter of Chaplin's mortgage both for Chaplin and for the mortgagor, Frederick Cave. The conclusion I arrive at is, that Chaplin has sustained the burden cast upon him of proving that the circumstances are such as repel the --•onstruction or imputation to the principal of notice to the agent. Therefore I hold that Mr. Chaplin's mortgage has a priority over the plaintiffs'. ^ The argtiments of counsel are omitted too;ether with a part of the opinion relating to the question of constructive notice to Chaplin. — Ed. SECT. I.] CAVE V. CAVE. 313 The next question arises between the plaintiffs and White, and also between all the other iucumbraucers upon the fund. That question is of this nature : all these incumbrancers allege that they are purchasers for value without notice, and they plead that, being purchasers for value without notice, they have a sufficient and conclusive defence. That defence, as we all know, has been the subject of a great deal of decision, and it is by no means easy to harmonize the authorities and the opinions expressed upon tiie subject. Criticisms upon old cases lie many strata deep, and eminent Lord Chancellors have expressed diametrically opposite conclusions upon the same question. The case of Phillips V. Phillips is the one which has been principally urged be- fore me, and that, as being the decision of a Lord Chancellor, is binding upon me, notwithstanding the subsequent comments upon it of Lord St. Leonards in his writings. That case seems to me to have laid down this principle, that, as between equitable interests, the defence will not prevail where the circumstances are such as to requu'e that this Court should determine the priorities between them. The classes of cases to which that defence will apply are other than that. Lord Westbury iu the course of his judgment in that case said this : " I take it to be a clear proposition that every conveyance of an equitable interest is an innocent conve^'ance, that is to say, the grant of a person entitled merely in equity passes only tliat which he is justly entitled to and no more. If, therefore, a person seised of an equitable interest (the legal estate being outstanding), makes an assurance by way of mortgage, or grants an annuity, and afterwards conveys the whole estate to a pur- chaser, he can grant to the purchaser that whicli he has. namely, the estate subject to the mortgage or annuity, and no more. The subse- quent grantee takes only that which is left in the grantor. Hence grantees and incumbrances claiming in equity take and are ranked ac- cording to tlie date of their securities, and the maxim applies, ' Qui prior est tempore potior est jure.' The first grantee is potior — that is, potentior. He has a better and superior — because a prior — equity." His Lordship then proceeded to explain the different classes of cases in which that defence is availal)le, and the one which has been relied upon as bringing tlic case of tlie defendants within the decision of Lord Westbury is the third class, which is tiiis, that " where there arc cir- cumstances that give rise to an equity as distinguislicd from an equi- table estate — as, for example, an equity to set aside a deed for fraud, or to correct it for mistake — and Ihc purchaser under the instrument maintains the plea of i)urch:is<' for valuable consideration without no- tice, the Court will not interfere." Now the question I have to determine is this, is the right of the par- ties to follow this money into the land an equitable estate or interest, or is it an equity as distinguished from an equitalde estate ? The deci- sion of Lord KIdon many years ago appears to me to bo perfectly con- clusive upon the law. 1 refer to the caHc of Lewis v. Madocks,' where 1 17 Ves 48, 57. 314 CAVE V. CAVE. [CHAr. IIL on further consideration directions had been given for an inquiry as to certain trust moneys which had gone into hind, tlie wife chiiniiug an in- terest in the hind as against the lieir ; and Lord Eldou said this : " The claim of the wife is put in this way, that personal property bound by the trust or obhgation, whatever it is called, of this bond is traced into the purchase of a real estate, which estate must therefore be hers ; but 1 do not know auy case in its circumstances sulhciently like this to authorize me to hold that doctrine. I am prepared to say that the per- sonal estate bound by this obligation, and which has been laid out in this real estate, is personal property that may be demanded out of the real estate ; that the estate is chargeable with it ; but it was not so purchased with it, that the estate should be decreed to belong not to the heir but to the wife." In other words, his Lordship held that the estate descended to the heir subject to the charge. That charge ap- pears to me to be a charge in equity, or, in other words, an equitable estate or interest. Very similar was the question which Vice Chancel- lor Kiudersley had to determine in the case of Rice v. Rice.^ He had there to adjudicate between two equities, one arising from the right of an unpaid seller to come upon the land, and the other arising by contract creating an equitable mortgage. It is a very leading and in- structive case, in which the Vice Chancellor considered very fully the application of the maxim, " Qui prior est tempore ^wtior est jure" and laid it down thus : "To lay down the rule with perfect accuracy, I think it should be stated in some such form as this. As between per- sons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity, or, ' Qui irrior est tempore jyotior est jure.' " He then went on to consider and weigh the two equities set one against the other in that suit, and then he says : "Each of the parties in controversy has nothing but an equita- ble interest ;- the pbintiff's. interest being a vendor's lien for unpaid purchase-money, and the defendant Ede having an equitable mortgage. Looking at these two species of equitable interests abstractedly and "without reference to priority of time, or possession of the title deeds, or any other special circumstances, is there anything in their respective natures or qualities which would lead to the conclusion that in natural justice the one is better or more worthy or more entitled to protection than the other? Each of the two equitable interests arises out of the forbearance by the party of money due to him. There is, however, this difference between' them, that the vendor's lien for unpaid pui-- chase-money is a right created by a rule of equity without any special contract; the right of the equitable mortgagee is created by the special contract of the parties. I cannot say that in my opinion this consti- tutes any sufficient ground of preference, though, if it makes any difference at all, I should say it is rather in favor of the equitable mortgagee, inasmuch as there is no constat of the right of the vendor to his lien for unpaid purchase-money until it has been declared by a 1 2 Drew. 73. SECT. I.] CAVE V: CAVE. 315 decree of a Court of Equity, whereas there is a clear constat of the equi- table mortgagee's title immediately on the contract being made. But I do not see in this any sufficient ground for holding that the equitable mortgagee has the better equity." In my judgment, the right of a vendor for the unpaid purchase- money is an equitable lien, and the right of the cestuis que trust, whose trust money has been invested in the lands, is also an equitable lien. 1 do not think I can really distinguish this equity from such an equi- table lien as the Vice Chancellor held to be in that case an equitable estate or interest of the same description as the equity of an equitable mortgagee. Therefore, I shall conclude that, within the case of Phil- lips V. Phillips, the interest of the plaintiff in this case is an equitable interest, and not merely an equity like the equity to set aside a deed, and therefore it must take its priority according to the priority ol date.^ 1 Danbeny v. Cockburn, 1 Mer. 62fi ; Re Vernon, 33 Ch. Div. 402 ; 32 Ch. D. 165 (semble) ; Carritt v. Real Co., 42 Ch D. 263 Accord. Sturge V. Starr, 2 M. & K. 195 ; Lane v. Jackson, 20 Beav. 535 ; Penny v. Watts, 2 De G. & Sm. 501 ; Re Ffrench's Est., 21 L. R. Ir. 283, Contra. — Ed. 316 NOTE. [CIIAP. III. NOTE. WHEN TRUST PROPERTY TS INCLUDED IN A GENERAL CON- VEYANCE OR DEVISE BY A TRUSTEE. Whether a general conveyance or devise by a trustee is confined in its operation to property in which the trustee has a beneficial interest, or includes also property held by Iiini simply as trustee, is a question of iutoution to be gathered from the whole scope of tlie deed or will. Conveyance inter vivos. — In Fausset v Carpenter, 5 Bligh, n. s. 75 ; 2 Dow & CI. 232,8. c. ; Anderson v. Raikes, 1 Stark. 155; Abbot, 55 Me. 580, it was decided tliat the legal title to trust property did not pass by a general conveyance by the trustee. This interpretation was adopted upon the ground that an intention to com- mit a breach of trust should not be imputed to the trustee without express evidence of such an intention. I'he case of Fausset v. Carpenter is criticised, however, with some severity in Sugden's Law of Property, 76. Wills. — On the other hand, the lejial title to trust property will pass by a general devise by the trustee, unless the will discloses an intention to restrain its operation to property in which the testator had a beneficial interest. Marlow v. Smith, 2 P Wms. 198 ; Ex parte Sergison, 4 Yes. 147 (semble) ; Braybrooke v. Inskip, 8 Ves. 417 (over- ruling Attorney-General v. Buller, 5 Ves. 339); Ex parte Shaw, 8 Sim. 159; Bain- bridge V. Ashburton, 2 Y. & C. Ex. 347 ; Sharpe v. Sharpe, 12 Jur. 598; Langford v .\uger, 4 Hare, 313; Lewis v. Mathews, L. R. 2 Eq. 177 ; Taylor ?:. Benham, 5 How. 2.33,270, Richardson v. Woodbury, 43 Me 206 {semble); Ballard v. Carter, 5 Pick 112 (semble) ; Cooper v. Cooper, 1 Hal. Ch. 9; Wills v. Cooper, 1 Dutch. 137 (semble); Jackson v. Delancy, 13 Johns 537 ; Merritt v. Farmers' Co., 2 Edw 547 (semble) ; Heath v. Knapp, 4 Barr, 228. Any disposition of the property, however, which would be improper unless the testator had the beneficial interest therein, is sufficient to exclude trust property from the operation of the will ; e. g. . — A Devise subject to Debts, Annuities, or Legacies. — Reade v. Reade, 8 T. R. 118 ; Ex parte Morgan, 10 Ves. 101 ; Rackham v. Siddall, 16 Sim. 297 ; 1 McN & G. 607, 8. c. , Doe V. Lightfoot, 8 M. & W. 553 (semble) ; Hope v. Liddell, 21 Beav. 183 ; Life As.so- ciation v. Siddal, 3 D., F. & J. 58 ; Re Smith's Estate, 4 Ch. D. 70 ; Re Bellis's Trusts, 5 Ch. D. 504 (impugning Re Brown, 3 Ch. D. 156, contra). A DejnsejifiSin_Trust to sell. — Ex parte Marshall, 9 Sim. 555; Re Morley's Will, 10 Hare, 293 , Re Packnian, 1 Ch. D. 214 ; Re Smith's Estate, 4 Ch. I). 70 ; Surrey Co. v. Kerr, W. N. (1878), 163 (but see Wall v. Bright, 1 J. & W. 494, criticised in Lysaght V. Edwards, 2 Ch. D. 499) ; Richardson v. Woodbury, 43 Me. 206 ; Merritt v. Farmers' Co., 2 Edw. 547 ; Nightingale v. Nightingale, 13 R. I. 113. A Devise l»-iiePefaras Tenants in Common. — Martin r. Laverton, L R. 9 Eq. 563, 568 (semble). See Doe v. Lightfoot, 8 M. & W. 553 ; Re Morley's Will, 10 Hare, 293 ; Re Finney's Estate, 3 Giff. 465 ; Thirtle v. Vaughan, 2 W. R. 632 ; 24 L. Times, 5, s. c A Devise to Several Persons with a Right of Accruer. — Thirtle v. Vaughan, 2 W. R. 632 ; 24 L. Times, 5, 8. c. See also Ex parte Brettell, 6 Ves. 576 (explained in 8 Ves. 434). A Devise to an Unascertained Class- — Re Finney's Estate, 3 GifiE 465. A Devise to the Separate Use of a Woman. — Lindsell v. Thacker, 12 Sim. 178. A Devise in Strict Settlement. — Thompson v. Grant, 4 Mad 438. A Devise to the Cestui que Trust being an Infant — Wills v. Cooper, 1 Dutch. 137. General Convevakce or Devise by a Mortgagee — The legal title to mort- gaged property will of course pass by a general conveyance or devise by the mort- gagoe, unless a contrary intention appears by the deed or will. Sir Thomas Littleton's SECT. I.] GIDDIXGS V. EASTMAN, 317 Case, 2 Vent 351 , Ex parte Bowes, 1 Atk. 605, n 1 ; Ballard v. Carter, 5 Pick 112. Furthermore, as a mortgagee, unlike a trustee, has a beneficial mterest in the property, the legal title will pass notwithstanding the property is conveyed or devised subject to a charge for the payment of debts, legacies, or annuities Wynn v. Littleton, 1 Veru. 3; 1 Atk 605, n. 1, s. c, ; Re Stevens, L. R 6 Eq 597; Lewin, Trusts (7th ed), 209, 210 See also Re Smith's Estate, 4 Ch. D. 70, 72. But see contra, Doe v Lightfoot, 8 M- & W. 553 , 1 Jarman, Wills (4th ed ), 701. In the following cases the terms of the will were thought to be inconsistent with an intention of the mortgagee to dispose of the legal title to tlfe mortgaged property ; e. g. : — A Limitation of the Properti/ in Strict Settlement — Braybrooke v. Inskip, 8 Ves. 434 (semble); Thompson v Grant, 4 Mad. 438; Galliers v. Moss, 9 B & G. 267 (but see Ex parte Bowes, 1 Atk. 605, n. 1). A Devise to an Unascertained Class — Re Finney's Estate, 3 Giff. 465. A Devise upon Special Trusts. — Re Horsfall, McCl. & Y. 292 ; JMartin v. Laverton, L R. 9 Eq 563 ; Re Packman, 1 Ch D. 214. See also Leeds v. Munday, 3 Ves. Jr. 348 , Breckinridge v. Waters, 4 Dana, 620. It is hardly necessary to add, that when the legal title to trust property passes by the will of the trustee, the devisee takes the same subject to the trust. Marlow v. Smith, 2 P. Wma. 201 , Grenville i-. Blyth, 16 Ves. 231, —Ed. X GIDDINGS AND COLEMAN v. EASTMAN and Wife. In Chancery, New York, before R. H. Walworth, C, March 15, 1831. [Reported m 5 Paige, 561 ] This was an appeal from a decree of the Vice Chancellor. The premises in controversy were conveyed in November, 1810, to C. Blanchard, who, however, held them as a constructive trustee for the complamants. Blancliard died in April, 1811, intestate, and without issue, leaving his sister Abigail, the wife of the defendant Eastman, and four other sisters, his heirs-at-law. Eastman purchased the rights of his four sisters-in-law, paid them therefor, and took con- veyances from them without any notice of the trust in favor of the comphiinants.' J. C. Spencer for the complainants. F. M. Ilaifjht for the defendants. The Chancf.i.i.ou. It is Insisted, however, by the complainants' counsel, tiiat as Eastman and wife hchl an undivided share of the premises, in right of the wife, as one of the heirs-at-law of Hlauchard, charged with the trust, although they were both ignorant of the fact that any such trust existed, it was impossible for Eastman to become Abonajide purchaser of the undivided shares of the other four heirs-at- ' The statement of the caao haa been much abridged. The arguments of couasel are omitted, together with a part of the Chancellor's opinion — Ed. 318 THIRD NATIONAL BANK V. LANGE. [CIIAP. III. law. Tills position cannot be sustained upon any principle of equity. The cases referred to by the complainants' counsel, upon this point, are cases in which a trustee holding the estate for auothcr has taken ad- vantage of bis situation to purchase in an outstanding title, or to se- cure some advantage which, in equity, it was his duty to purchase or secure for the benefit of his cestui que trust; or where, from the situ- ation of the purchaser in reference to others, it might be presumed he intended to make the purchase for his and their joint benefit. But where one devisee or heir-at-law is by construction turned into a trustee without any knowledge on his part that he is such trustee, or of the facts which make him a trustee constructively, it appears to be impossible to hold that he may not be a bona fide purchaser of the un- divided share of another tenant in common in the same property, as to which he is equally ignorant that any trust exists. The conclusion of the Vice Chancellor was therefore right, that Eastman acquired a valid title to four-fifths of the premises, by purchase from the heirs, and that he now holds that portion of the premises, discharged of the trust which attached to it in the hands of the heirs. The decree appealed from is affirmed, with costs ; and the proceed- ings are to be remitted to the Vice Chancellor.' THE THIRD NATIONAL BANK v. JOHN H. LANGE & Others. In the Court of Appeals, Maryland, October Term, 1878. [Reported in 51 , Man/land Reports, 138.] Appeal from the Circuit Court of Baltimore City. This was a proceeding in equity by the appellee, Lange, against the appellant and others, to enjoin the appellant from collecting or at- tempting to collect a promissory note, purchased by it, but equitably belonging to the appellee Lange, or from pi'otesting it, or taking any further steps in regard thereto. The injunction ordered to be issued, was served upon the appellant three days before the maturity of the note. The case is further stated in the opinion of the Court. The cause was argued before Bartol, C. J., Brent, Miller, Alvey, and Robinson, JJ. 1 For instances where innocent volunteers, as in the principal case, were charged as constractive trustee^, see Pye v. George, 2 Salk. 680 , Mansell v. Mausell, 2 P. Wms. 678. 681 ; Luttrell v. Olmius, 11 Ves. 638 (cited) , Eell v. Bell, LI. & G. 44, 58 ; Greiner I- Greiner, 58 Gal 115, 123; Hazletine v. Fourney, 120 II!. 493; Dcrry v. Deny, 74 Ind. 560 , Cobb v. Knight, 74 Me. 253 ; Shaler v. Trowbridge, 28 N. J. Eq. 595 ; Lyford 1 Thurston, 16 N. H. 399; Savage v McCorkle, 17 Oreg. 42; Kennedy v. Baker, 59 Tex. 150; Everett i; R. R. Co., 67 Tex. 430. — Ed. SECT. I.] THIRD NATIONAL BANK V. LAXGE, 319 Henry StocJcbridge, for the appellant. Thomas R. Clendinen^ for the appellee Lange. Albert Ritchie, for the appellees, Flyun «S: Emerich and J. Eegester & Sons.^ Brent, J., delivered the opinion of the Court. The note, about which this case has arisen, is as follows : — SHOO. Baltimore, Fehy. 8th, 1876. Twelve months after date we promise to pay to the order N. W. "Watkins, trustee, eleven hundred dollars with interest, value received. Flynn & Emericu." The names of " N. W. Watkins, Trustee," and "J. Eegester & Sons," are indorsed upon it. This note was given for the purchase of property sold by N. W. Watkins, as trustee under a decree of the Circuit Court of Baltimore City, and is for one of the deferred payments, as authorized by that decree. At the time of its delivery to the trustee, it was indorsed by J. Regester & Sons as securities for the drawers, — the terms of sale requiring the deferred payments to be secured in that form. Subsequently N. W. Watkins wrote above the names of J. Regester & Sons the indorsement " N. W. Watkins, Trustee," and applied to the Union Banking Company to buy the note, offering to sell it for 12 per cent off. The Banking Company not being willing to buy it, its cashier offered to sell it for Watkins, and placed it in the hands of a bill broker for that purpose. After getting into the hands of a second bill broker it was taken by him to the Third National Bank, the appel- lant, and offered to it for sale. The bank bought it from the broker at nine per cent off, and the proceeds seem to have been appropriated by Watkins. The appellees claim that the bank acquired no right to the note, while it is contended for the bank that the note is embraced in the class of commercial paper, and was acquired by it in a usual and proper way. Without intending to decide upon the right of a national bank to purchase paper, as the question does not necessarily arise in this case, we do not think the note in question is within the class of paper known as commercial paper. Although like it in general form, the fact that it is payaljle to the order of Watkins, trustee, restricts its free circulation, and excepts it from some of the rules governing commercial paper. No doctrine is better settled, than that a trustee has no power to sell and dispose of trust property for his own use and at his own mere will. One who obtains it from him or through him witli actual or construc- tive notice of the trust, can acquire no title, and it may be recovered by suitable proceedings for the benefit of tlic cestui que trust. If there are circumstances connected with the purchase which reasonably indi* 1 The arguments of couDsel are omitted. — Ed. 320 TIIIKD NATIONAL BANK V. LANGE. [uHAP. III. cate that trust property is being dealt with, they will fix upon the pur- chaser uotice of iho trust, aud if lie fails to make inquiry about the title he is getting, it is his own fault and he must suffer the conse- quences of his own neglect. The general doctrme is stated in 1 Story's Eq. Juris., sec. 400, where it is said: "for whatever is sufficient to put a party upon inquiry, (that is, whatever has a reasonable certainty as to time, place, circum- stances, and persons,) is, m equity, held to be good notice to bind him." A large number of authorities is referred to in the note, and it is unnecessary' to allude to them more particularly. In the case of the present note, it cannot be read understandingly without seeing upon its face that it is connected with a trust and is part of a trust fund. It was the duty of the bank, before purchasing it, to have made inquiry into the right of the trustee to dispose of it. But this it wholly failed to do, and as it turns out, he was disposing of the note in fraud of his trust, the bank must suffer the consequences of the risk it assumed. In the case of Shaw v. Spencer, and others,^ the question is con- sidered, whether the addition of the word trustee to the name alone is sufficient to indicate a trust and put a party upon inquiry. That was the case of stock certificates, which were pledged by the holder as col- laterals for certain acceptances. The certificates in question were in the name of E. Carter, trustee. They were by him indorsed, and one of the questions presented was whether the word trustee was sufficient to put the holders upon inquiry, and thereby affect them with notice of the trust. The Court says on page 393, "The rules of law are pre- sumed to be known by all men ; and they must govern themselves Hccordingly. The law holds that the insertion of the word ' trustee ' after the name of a stockholder does indicate and give uotice of a trust. No one is at liberty to disregard such notice and to abstain from in- quiry, for the reason that a trust is frequently simulated or pretended when it really does not exist. The whole force of this offer of evidence is addressed to the question, whether the word ' trustee ' alone has any significance and does amount to notice of the existence of a trust. But this has heretofore been decided, and is no longer an open ques- tion in this commonwealth." And upon the ground that pledgees took the certificates with this notice of the trust, it was held that they could not retain them against the equitable owner, inasmuch as Carter, the trustee, had no authority to use or dispose of them for any such purpose. The argument, that the bank should not be deprived of its action against J. Regester & Sons, whose indorsement it is claimed guaran- tees the preceding indorser, would be entitled to weight but for the facts of the case. While the rule is undoubted that a subsequent en- dorser guarantees the preceding indorsement, it cannot apply to a case 1 100 Mass. 382. SECT. I.] THIRD NATIONAL DANK V. LANGE. 321 where in fact there was no previous indorsement at the time of the alleged second indorsement. The obligations of J. Regester & Sons upon this note were those of original makers, Ives v. Bosley,^ Good V. Martin,- as is clearly shown by the proof in the case. Their name was placed upon the note as security, and they cannot be held to a contract of guaranty into which they never entered. That parol evi- dence is admissible to show the character in which they stand relative to this note is settled by the Supreme Court of the United States in the case of Good v. Martin, just referred to. We are therefore very clearly of opinion, that the bank cannot hold Regester & Sons liable as guarantors. When the note is paid, their liability ceases. We find no error in the decree of the Court below, and it will be affirmed. Decree affirmed with costs, and case remanded.^ 1 35 Md. 263. 2 95 u. S. 90. 8 Sturtevant v. Jaques, 14 All. 523 Accord. A fortiori one who takes a conveyance from a person whose name is followed by the word " trustee " in the document of title, and with knowledge that he is making tue conveyance for his personal advantage, for example, to satisfy or secure Jiis own debt, cannot hold the property against the defrauded cestui que trust. Bank of Montreal v Sweeny, 12 App. Cas. 617 ; Duncan v. Jaudon, 15 Wall. 165; Manhattan Bank v. Walker, 130 U. S. 267 ; Shaw v. Spencer, 100 Mass. 382 ; Smith v. Burgess, 133 Mass. 511 ; Payne v. First Bank, 43 Mo. Ap. 377, 383 ; Alexander v. Aldersou, 7 Baxt. 403.— Ed. 322 CARrENTER V. CARPENTER, [CHAP. in. SECTION I. (continued), (b) By Act of the Cestui que Trust. CARPENTER v. CARPENTER. WASBORNE V. DOWNES. In Chancery, before Lord Jeffreys, C, February 23, 1686. [Reported in 1 Vernon, 440.] Ix these eases it was resolved, that where a common recovery is suffered, or a fine levied by cestui que trust in tail, it shall have the same effect, and avail as much in this court, and bind the trust in the same manner as the same would the estate in law in case he had the legal estate in him ; and as to a fine, it had never been doubted since the case in the Lord Bridgman's time. And it has been held by some, that even a bargain and sale enrolled by cestui que tntst of an estate tail should bind the issue, in regard that such a trust is not within the statute de donis.^ 1 " The power of an equitable tenant in tail to dispose of the equitable fee simple has been differently viewed at different periods. At common law all inheritable estates were in fee simple, and it was the statute de donis («) that first gave rise to entails and expectant remainders. As this statute was long prior to the introduction of uses, had equity followed the analogy of the common law only, a trust limited to A. and the heirs of his body, and in default of issue to B. would have been construed a fee simple conditional, and the remainder over would have been void ; but the known legal estates of the day, whether parcel of the common law or ingrafted by statute, were copied without distinction into the system of trusts, and, equitable entails indis- putably existing, {he question in constant dispute was, by what process they were to be barred. After much fluctuation {b) it was finally established by Lord Hardwicke, that as entails with expectant remainders had gained a footing in trusts by analogy to the statute de donis, a court of equity was bound to follow the analogy throughout, and therefore that a tenant in tail of a trust could not bar his issue, or the remainder- man, except by an assurance analogous to one which would have been a bar had the entail been of the legal estate. " The doctrines of equity, as finally settled upon this principle, were as follows : — " 1 . For a good equitable recovery there must have been an equitable tenant to the praecipe, that is, the beneficial owner (c) of the first equitable freehold must necessarily have concurred (d). " 2. An equitable recovery was a bar to equitable only, and not to legal remain- ders (e). (a) 13 Ed. l,8t. l,c. 1. (6) See an account of the fluctuation in 3d ed., pp. 601-604. (c) Penny v. Allen, 7 De G. M. & G. 425. id) North V. Williams, 2 Ch. Ca. 64, per Lord Nottingham ; Highway v. Banner, 1 B. C. C. 586 ; and see Wickham v. Wickham, 18 Ves. 418. (e) Philips V. Brydges, 3 Ves. 128, per Lord Alvanley; Salvin v. Thornton, Amb. 585 ; 8. c. 1 B. C. C. 73, note. SECT. I.] DEARLE V. HALL. 323 DEARLE V. HALL. In Chancery, before Lord Ltndhurst, C, December 24, 1828. [Reported m 3 Russell, 48.] The Lord Chancellor.^ The cases of Dearie v. Hall and Love- ridge V. Cooper were decided by Sir Thomas Plumer ; and from his decree there is in each of them an appeal, which stands for judgment. As the two cases depend on the same principle, though the facts are, to a certain degree, different, the better course will be to dispose of both together ; and as Dearie v. Hall was the first of the two which came before the court below, though it was not argued on appeal till after Loveridge v. Cooper had been heard, I shall first direct my attention to the facts on which it depends. Zachariah Brown was entitled, during his life, to about £93 a year, being; the interest arising: from a share of the residue of his father's estate, which, in pursuance of the directions in his father's will, had been converted into mone}', and invested in the names of the executors and trustees. Among those executors and trustees was a solicitor of the name of Unthauk, who took the principal share in the management of the trust. Zachariah Brown, being in distress for money, in con- sideration of a sum of £204, granted to Dearie, one of the plaintiffs in the suit, an annuit}' of £37 a year, secured by a deed of covenant and a warrant of attorney of the grantor and a surety ; and, by way of collateral security, Brown assigned to Dearie all his interest in the yearly sum of £93 : but neither Dearie nor Brown gave any notice of this assignment to the trustees under the father's jvill. Shortly afterwards, a similar transaction took place between Brown and the other plaintiff, Sherring, to whom an aiuiuity of £27 a year was granted. The securities were of a simUar description ; and, on this occasion, as on the former, no notice was given to the trustees. "3. An cquitahle recovery was not vitiated by tlic circumstance that tlie e(iuital)Io tenant to the prmr.tpe had also the lee;al freehold (_/). " 4. An c(|uital)Io remainder was well barred, though it was vested in a person wlin had also the h'gal fee (7). " At the present day, by the operation of the Fines and Recoveries Act (A), the e(|ui- table tenant in tail may dispose of (') tlie eipiitable fee by the same modes of assur- ance ami 1)V the same formalities as if h(! were tenant in tail of the lojral estate." — Lewin, Trusts (9tli ed.) 779-80. — Ed (/) Philips V Bryrlgea, 3 Yea 120, per Lord Alvanloy, 2 Ch Ca. 40 ; Marwood 1;. Turner, 3 V. W. 171 ; fJoodrick v Hrowii, 2 C\\. Ca. 4'.) , s. r. Freem. IHO. (7) Philips V J'.rydges, 3 Ves. 1^0, Poliinson i'. Comyns, Cas. t. Talb. ICl, s. C. 1 Atk. 172. (/i) 3 & 4 Will. 4, c. 74. (1) A mere declaration of trust is not a disposition withiu the moaning of the Acl« temble ; Green v. ratcrson, 32 Ch. Div. 95. * See supra, p. 70, n. 1. — Ed. 324 DEARLE V. HALL. [CIIAP. IIL Tlicse trnnsactions took place in 1808 and 1809. The annuities were regularly paid till June, ISll ; and then, for the first time, default was made iu payment. Notwithstanding this circumstance, Brown, iu 1812, publicly adver- tised for sale his interest in the property under his father's will. Hall, attracted by the advertisement, entered, through Ins solicitor, Mr. Patten, into a treat}' of purchase ; and it appears from the correspond- ence between Mr. Patten and Mr. Unthauk that the former exercised due caution in the transaction, and made every proper inquiry concern- ing the nature of Brown's title, the extent of any incumbrances affect- ing the property', and all other circumstances of which it was fit that a purchaser should be apprised. No intimation was given to Hall of the existence of any previous assignment ; and, his solicitor being satisfied, he advanced his money for the purchase of Brown's interest, and that interest was regularly assigned to him. Mr. Patten requested Unthank to join iu the deed ; but Mr. Unthank said, "I do not choose to join in the deed ; and it is unnecessary for me to do so, because Z. Brown has an absolute right to this property, and may deal with it as he pleases." The first half-year's interest, subject to some deductions, which the trustees were entitled to make, was duly paid to Hall ; and, shortly afterwards, Hall for the first time ascertained that the prop- erty had been regularly assigned, in 1808 and 1809, to Dearie and to Sherring. Sir Thomas Plumer was of opinion that the plaintiffs had no right to the assistance of a court of equity to enforce their claim to the property as against the defendant Hall, and that, having neglected to give the trustees notice of their assignments, and having enabled Z. Brown to commit this fraud, tfcey could not come into this court to avail them- selves of the priority of their assignments in point of time, iu order to defeat the right of a person who had acted as Hall had acted, and who, if the prior assignments were to prevail against him, would necessarily sustain a great loss. In that opinion I concur. It was said that there was no authority for the decision of the Mas- ter of the Rolls, — no case in point to support it ; and certainly it does not appear that the precise question has ever been determined, or that it has been even brought before the court, except, perhaps, so far as it may have been discussed in an unreported case of Wright v. Lord Dor- chester. But the case is not new in principle. Where personal prop- erty is assigned, delivery is necessary to complete the transaction, not as between the vendor and the vendee, but as to third persons, in order that they may not be deceived by apparent possession and ownership remaining in a person, who, in fact, is not the owner. This doctrine is not confined to chattels in possession, but extends to choses in action, bonds, «&c. ; in Ryall v. Rowles ^ it is expressly applied to bonds, simple contract debts, and other choses in action. It is true 1 1 Ves. Sen. 348; 1 Atk. 165. SECT. I.] DEARLE V. HALL. 325 that Ryall i-. Eowles was a case iu baukniptc}^ ; but the Lord Chancel- lor called to his assistance Lord Chief Justice Lee, Lord Chief Baron Parker, and Mr. Justice Burnett ; so that the principle on which the court there acted must be considered as having received most authori- tative sanction. These eminent individuals, and particularly the Lord Chief Baron and Mr. Justice Burnett, did not, in the view which they took of the question before them, confine themselves to the case of bankruptcy, but stated grounds of judgment which are of gener.al ap- plication. Lord Chief Baron Parker says, that, on the assignment of a bond debt, the bond should be delivered, and notice given to the debtor ; and he adds, that, with respect to simple-contract debts, for which no securities are holdeu, such as book-debts for instance, notice of the assignment should be given to the debtor, in order to take away from the debtor the right of making payment to the assignor, and to take away from the assignor the power and disposition over the thing assigned. 1 Ves. Sen. 367; 2 Atk. 177. In cases like the present, the act of giving the trustee notice is, in a certain degree, taking pos- session of the fund ; it is going as far towards equitable possession as it is possible to go ; for, after notice given, the trustee of the fund becomes a trustee for the assignee who has given him notice. It is upon these grounds that I am disposed to come to the same conclusion with the late ^Master of the Rolls. I have alluded to a case of Wright v. Lord Dorchester, which was cited as an authority in support of the opinion of the Master of the Rolls. In that case, a person of the name of Charles Sturt was en- titled to the dividends of certain stock, which stood in the names of Lord Dorchester and another trustee. In 17'J3 Sturt applied to Messrs. "Wright & Co., bankers at Norwich, for an advance of money, and, in consideration of the moneys which they advanced to him, granted to them two annuities, and assigned his interest in the stock as a security for the payment. No notice was given by Messrs. AVriglit &. Co. to the trustees. It would appear that Sturt afterwards applied to one of the defendants. Brown, to purcluise his life interest in the stock ; Brown then made inquiry of the trustees, and they stated that thoy had no notice of any incumbrance on the fund : upon this B. completed the purchase, and received the dividends for upwards of six years. ^lessrs. "VVriglit then filed a bill, and obtained an injunction, restraining the transfer of the fund or the payment of tlie dividends; Itut, on the answer of r>rown, disclosing tlie facts witli respect to his purchase, Lord Kldon dissolved that injunction. At tlie same time, however, that he dissolved the injunction, he dissolved it only on condition that Brown should give security to refund the money, if, at the liearing. the court should give judgment in favor of any of tiie otiier parties. 'I'hat case was attenrlcd also with tiiis particular circumstance, that the party who pledged the fund stated liy liis answer that, wliou he executed the security to Wriglit & Co., he considered that the pledge was meant to extend only to certain real estates. For these reasons I do not rely 326 DEAKLE V. HALL. [CHAP. IIL on the case of Wright v. Lord Dorchester as an authoritj' ; I rest on the general i)rincii>le to which 1 have referred ; and, on that principle, I am of opinion that the plaintiffs are not entitled to come into a conrt of eqnity for relief against the defendant Hall. The decree must, therefore, be atlirmed, and the deposit paid to Hall. The case of Loveridge v. Cooper, though the circumstances are somewhat different, is the same in principle with Dearie v. Hall, and must follow the same decision.^ 1 It will be observed that the second purchaser in tlie principal case made due in- quiry of the trustees as to prior incumbrances, and made his purcliase upon their assurance that there were none, — an assurance which was the natural consequence of the first purchaser's failure to notify the trustees of his purchase. The facts and de- cision were similar in Greening v. Beckford, 5 Sim. 195 ; Bridge v. Beadon, 3 Eq. 664 ; ■Spain V. Hamilton, 1 Wall. 604 ; Parks v. Innes, 33 Barb. 37 ; Campbell's App., 29 I'a. 401. See also Murdoch v. Finney, 21 Mo. 138. The question is obviously very different where the second purchaser makes no in- quiry of the trustee before making the purchase, but rests his claim to jjriority purely upon the fact that his purchase was first notified to the trustee. It is ditticult to see how the second purchaser can found any claim upon the neglect of the first pur- chaser when his conduct has not been infiuenced by neglect. It was nevertlie- less decided by Lord Lyndliurst iu Hulton v. Sandys, Younge, 602, and by Lords Lyndhurst and Brougliam in Foster i'. Cockerell, 3 CI. & Fin. 4.50, 9 Bligh, n. s. 332, that a fir.st purchaser sliould be postponed to a subsequent purchaser simply because the former did not, and the latter did, give notice of his jjurcha.se to the trustee. To the same effect are Tirason v. Kamsbottom, 2 Keen, 35 ; Meux v. Bell, 1 Hare, 73 ; Etty v. Bridges, 2 Y. & C. C. C. 486 ; Warburtou v. Hall, Kay, 470, 478 ; Elder v. McLean, 3 Jur. N. s. 284 ; Addison v. Cox, 8 Ch. 76 ; Blackwood v. Loudon Bank, L. R. 5 V. C. 92; Re Freshfield, 11 Ch. D. 198; Saffron Society;;. Rayner, 14 CIi. D. 406; Low i;. Bouverie, '91, 3 Ch. 83 ; English Trust v. Bruuton, '92, 2 Q. B. 1 ; Justice v. Wynne, 10 Jr. Ch. 489 ; Bishop v. Holcomb, 10 Conn. 444, 446-7 ; Copeland v. Mantou, 22 Oh. St. 398, 401 ; Fislier v. Knox, 13 Pa. 622 ; Wetherell's App. 3 Grant (Pa.), 281, 288 ; Fraley's App., 76 Pa. 42; Pratt's App. 79 Pa. 378; Weed v. Boutelle, 56 Vt. 570. See also People's Bank v. Gridley^j^ 111. 457 ; Richards v. Griggs, 16 Mo. 416 (semhle) ; Smith V. Sterritt, 24 Mo. 260, 262T"HaJUieman f. Hillsborougii Co., 2 Handy, 101, 105; Wall- ston V. Braswell, 1 Jones Eq. (N. cTn^JTr— f>-e-A*-rxU,y ^ />J ^ J y J^ In Meux v. Bell, supra, Sir James Wigram, V. C, said, pp. 83-87 : — "I believe that, prior to the decision in Mr. Sturt's case, wiiich occurred in 1809 (Wright V. Lord Dorchester, 3 Ru.ss. 49, u.), it had never been held that tlie mere omis' sion of a person having an equitable interest in a fund, tlie legal projjcrty of which was in another, to give notice of that interest would of itself give a puisne incumbrancer the priority ; and I think it is ap])arent, upon the judgment iu Evans v. Bicknell, 6 Ves. 190, that Lord Eldon at that time did not consider the mere omission to give notice, where the transaction was quite destitute of fraud, would have that effect. Sir Thomas Plumer also, in 1814, in the case of Cooper v. Fynmore, 3 Russ. 60, expressed clearly the law of the court to be tliat the mere omission to give notice would not post- pone a prior to a puisne incumbrancer. . . . " I conceive it to be now clearly decided, by the cases of Dearie >•. Hall, Loveridge v. Cooper, and Foster v. Blackstone, I Myl. & K. 297 ; s. c. reported as Foster v. Cock- erell, 9 Bligh, N. s. 332, that if a honajide incumbrancer upon a fund, the legal interest in which is in a trustee, gives notice of his incumbrance to the trustee, and noitlier the incumbrancer giving the notice, nor the trustee at the time of such notice being given, has notice of any prior incumbrance affecting the fund, the incumbrancer giving such notice, so long as the circumstances of the case remain unaltered, will be entitled to priority over a prior incumbrancer upon the fund who has omitted or neglected to give SECT. I.] DEAELE V. HALL. 327 notice of his incumbrance, although the puisne incumbrancer mav have advanced bis money without making any previous inquiries of the trustee " I think these decisions are founded on principle. The omission of the puisne in- cumbrancer to make iuciuiry cannot bo material wliere iu(iuiry into the circumstances of the case could not have led to a knowledge of the prior incumbrance. " The question is, whether tlie inquiry, if it had been made, would or would not have informed the puisne incumbrancer of any material fact affecting his interest. If his conduct would have been the same, whether he bad made the iiKjuiry or not, the omis- sion of the inquiry cannot be a reason fur depriving him of the benefit of his subsequent vigilance. " The only suggestion which, it appears to me, can be made in answer to this view of the question is, that if the puisne incumbrancer has not made any inquiry, he has not, in point of fact, been deceived or injured by the neglect or omission of the prior incumbrancer. But there is a fallacy in that way of stating the case. If the puisne incumbrancer advances his money bona jidi', without inquiry, it must be presumed that he would equally have advanced it after inquiry, the result of which would have nega- tived the existence of any prior incumbrauce. The injury he sustains, and which gives him priority, is ex post Jhcto. If, after advancing his money, be is informed that there is a prior incumbrance, he will immediately use diligence to get in or secure his prop- erty. If, on the other hand, he is not told when he gives the notice that there is a previous incumbrance, he is led to sujjpose that his security is good ; he relies upon it, and he is injured in having placed such reliance ujjon it if it should appear that there is a prior incumbrance. The notice which, when it is given, has the effect of inquirv- is given either at the time the money is advanced or afterwards ; and the only distinction between the two cases is a distinction between a party who advances money at the time of taking a security, and a party who takes a security for an antecedent debt. The notice which the puisne incumbrancer gives converts the trustee of the fund into a trustee for the party giving the nr)tice. Dearie r. Hall. The credit which the puisne incumbrancer gives to the fund after the notice is as good a consideration as that of any other creditor who takes a security for an antecedent debt, which is clearly sufficient. Plumb v. Fluitt, 2 Anst. 4.32. And the puisne incumbrancer has a better equity than tlie earlier incumbrancer, because the former by notice to the trustee has perfected his equitable title, which the latter, by omitting or neglecting to give notice, has not done." An assignee in bankruptcy was, in England, on the principle of Dearie t». Hall, postponed to a subsequent particular assignee, if the latter gave notice first. Smith v. Smith, Cr. & M. 2.31 ; Re Atkinson, 2 1). x\I. & G. 140; A'e Uarr, 4 K. & J. 219 ; Lloyd V. Banks, .3 Ch. 488; Re Busscil, l.-j Ivj. 26; Palmer v. Locke, 18 Ch. I). .381. The rule was otherwise under the Bankrnjjtcy Act of 1849, § 141. Re Coombes, 1 Giff. 91 ; Bright's Trusts, 13 Ch. D. 413. But see Palmer v. Locke, supra. The English rule obtains in Scotlanil(Redfearn r. Ferrier, 1 Dow, SO) and in France. But the opposite rule prevails in Germany (4 Ilarv. L. Uev. 300, n. 2) and in many states in this country. White v. Wiley, 14 Ind. 496; Summers v. Hutson, 48 Ind. 228; Thayer v. Daniels, 113 Mass. 129 (semhie) ; Putnam v. Story, 132 Mass. 205 ; McDonald V. Kneeland, 5 Minn. 3.52 (spmlilc) ; Kennedy v. Parko, 17 N. J. Eq. 41.'); Kamona v, Huelbig, 23 N. J. Etj. 78 ; Muir v. Sdienck, 3 Hill, 228; Hol)in.Hon ;;. Week.s, 6 How. Pr. 161 ; Uichard.son v. Ainsworth, 20 How. Pr. 521 ; Bush v. Lathrop, 22 N. Y. 535, .'S46(.icMWe) ; (ireentree v. Kosenstock, 61 N. Y. 583, 593; Williams v. Ingersoll, 89 N. Y. 508, 523; Fairiianks v. Sargent, 104 N. Y. lOS. 118; Blandiard >: Evans, 55 N. Y. Sup'r Ct. 543 ; (but see Parks v. Innes, .33 Barb. .37 ;) Lindsay v. Wilson, 2 Dev. & Bat. Eq. 85; Clarke v. Ilogeman, 13 W. Va. 718; Tinglo v. Fisher, 20 W. Va. 497. In Thayer I'. Daniels, su/^a, the court speaking tbroiigii Dpvciih, J., said, p. 131 : "The rule in England would seem to he that, as between successive purchasers of a chose in action, he will have the preference who first gives notice to the debtor, even if he be a subsecpient purchaser. . . . Sncb, howcvfr, li.as not bpen tiio rule ado])t('d in this State, where it is well settled that the assignment of a chose in action is comjilote upon tlio mutual assent of assignor and a.ssignee, anee again assigned his share to onp Gaelics, to secure a sum of C^OO and in- terest ; of which indenture Gaches gave notice to the plaintiff in the same month of October, 1846. 330 LEE V. IIOWLETT. [ciIAP. III. The testator's widow having died in 1854, this suit was instituted by the i)huntitT for the administration of the real estate ; a previous suit of " Lys V. Lee " had beeu instituted by Miss Lys to realize her se- curity out of the personal estate, which, however, was wholly exhausted, leaving nothing but the real estate and its produce for the incumbran- cers to look to. A decree for sale had been made in this suit (Lee v. Ilowlett), and the usual inquiry directed as to incumbrances on the shares of the children. Pursuant to the decree Dell's Manor farm had been sold for £3,400, and the residuary estate for £500. The chief clerk certified as to the incumbrances, and, amongst others, to those on Charles Lee's share as above ; the result of his finding being that the several mortgagees, Vaughan (in whom Simon Main's mortgage had become vested), Miss Lys, and Gaches, were entitled according to the dates of their incum- brances. But it was arranged that the question of priority, with refer- ence to the dates of the several notices given to the plaintiff, should be argued before the court on the hearing for further consideration. The cause now came on to be so heard. Mr. Rolt, Q. C, and Mr. Speed., for the plaintiff. Mr. Daniel.^ Q. C, and Mr. W. P. Murray, for Miss Lys. Mr. Bilton, for other parties. Mr. Caclman Jones, for Vaughan, the first mortgagee.^ Vice Chancellor Sir W. Page Wood. I am of opinion that as to that portion of the property which was ordered to be sold, I am bound to hold, on the principle of Foster v. Cockerell, Dearie v. Hall, and that class of cases, that the incumbrancer who first gave notice of his incumbrance must prevail over the others. The principle does not depend simply on a question of mala fides; but the rule is, that the party who first makes himself master of a chose in action, by giving notice, to prevent its being handed over by the person in whose hands it is to any other claimant, — in other words, who first devests the title of the owner by giving notice to the person through whom the owner must derive the fund, — arrests that fund, and acquires the property for himself. Whether the fund be a trust fund held by A. in trust for B., or a debt payable by A. to B., if B. assigns, and his assign requires A. to pay the money over to him, that gives him priority over a pre- vious assign of B., who has not given such notice. It is decided that this doctrine does not apply to real estate ; ^ and in Wiltshire v. Rabbits * the late Vice Chancellor of England considered 1 The ar^ments of counsel are omitted. — Ed. - Bugden v. Bignold, 2 Y. & C. C. C. 379, 392 ; Malcolm ;;. Charlesworth, 1 Keen, 63 ; Jones r. .Jones, 8 Sim. 633 ; Wilmot v. Pike, 5 Hare, 14 ; Rooper v. Harrison, 2 K. & J. 86, 103 ; Phipps v. Lovegrove, 16 Eq. 90, 91 ; McCreight v. Foster, 5 Ch. 604 ; Union Bank v. Kent, 39 Ch. Div. 238 ; Humber v. Richards, 45 Ch. D. 589 ; Rochard r. Ful- ton, 7 Jr. Eq. R. 131 ; Re Burke, L. R. 9 Ir. 52; Park? v. Innes, 33 Barb. 37 (semble) Accord. — Ed. 8 14 Sim. 76. SECT. I.] PHILLIPS V. PHILLIPS. 331 that the doctrine was not applicable to an assignment of an equitable interest in a chattel real. In this case, part of the property is directed to be sold, without saying by whom. The sale must be by the heir or executors. Here, the same person fills both those characters, and the property must therefore pass through him. It must be converted into money, and none of the legatees could have reached that money except through him ; and they could never have had the property in the shape of land, but only as money. Then, the executor being bound to pay the shares in this manner, the fact that, at the time when this security was given, the period for the sale had not arrived, is not material.^ "Whenever tlie property was sold and the money paid to the executor, he would hold part of it for Charles Lee, or for the person who had obtained an assignment of liis share from Charles Lee. Here, Miss Lys first gave to the executor notice of the assignment in lier favor, and therefore she has priority over all other assigns of Charles Lee's share as to this part of the mortgaged property. As regards the residuary real estate, there is no direction in the will to sell that. It was devised to the testator's wife, for life, and after her death to her children. That would carry the fee-simple, and the children would not be obliged to take their shares from the hands of any tliird person, and although by the deed of arrangement they seem to have treated it as personal estate, it was in their own hands ; and there- fore there can be no question of notice as to this property, but it must go to the incumbrancers according to the order in time in which they ob- tained their securities. PHILLIPS V. PHILLIPS. In Chancery, before Lord Westbury, C, December 9, 10, 1861. [Reported in 4 De Gex, Fisher, ^- Jones, 208.] The Lord Chancellor.'^ When I reserved ray judgment at the con- clusion of the argument in tliis case, it was rather out of respect to that argument tlian from a feeling of any dilliculty willi regard to tlie ques- tion that had been so strenuously contested l)efore me. The case is a very simple one. The plaintitT claims as the grantee of an annuity granted by a deed dated in the montli of February, 1820, to issue out of certain hinds in the county of Moiniiouth, secured by powers of distress antl entry. The annuity or rent-cliarge was not to arise until the death of one Rebecca Phillips, who died in the month of December, 18)39, and the first payment of the aiuuiity became due on ' Foster v. Cockcrell, 3 CI. & F. 456; Consol. Co. v. Riley, h Jur. n. b. 1283; Re Hughes's Tru8tH, 2 II. & M. 89 ; Rr Wyatt, '92, 1 Ch. 188; Daueel v. Frolimau, 11 Ir. B. Eq. 233; Putnam v. Story, 132 Mass. 205 Accord. —ILu. ' See supra, p. 70, n. 1. — Ed. 332 niiLLiPS V. PHILLIPS. [chap. hi. the 8th of ]\r:irch. 1810. The case was argued on both sides on the admitted basis that the legal estate was outstauding iu certain incum- brancers, and is still outstanding. Subject to the annuity the grantor was entitled iu fee-simple in equity. In February, 1821, the grantor intermarried with one Mary Phillips. On the occasion of that mar- riage, a settlement, dated in February, 1821, was executed, and under this deed the defendants claim ; and claim, therefore, as purchasers for a valuable consideration. No payment has ever been made in respect of the annuity. The bill was filed within twenty j'ears, and seeks the ordinary relief applicable to the case. The defendants by their answer insist that the deed was voluntary, and therefore void under the Statute of Elizabeth, as against them in their character of purchasers for valuable consider- ation, and they also insist upon the Statute of Limitations. But in tlie answer the defence of purchase for valuable consideration without notice is not attempted to be raised. At the hearing, an affidavit of Mary Phillips and another person was produced, denying the fact of notice of the annuity at the time of the grant and at the time of the creation of the marriage settlement, and the contention at the bar was that the defence of purchase for valuable consideration without notice was available for the defendants, under these circumstances, and ought to be allowed as a bar to the claim by the court. The Vice Chancellor in his judgment refused to admit the defence of purchase for valuable consideration without notice, and I entirely agree with him in the conclusion tliat such a defence requires to be pleaded by the answer, more specially where an answer has been put in. But I do not mean to rest my decision upon that particular ground because I have permitted the argument to proceed with refei-ence to the general proposition, which was maintained before me with great energy and learning, viz. that the doctrine of a court of equity was this, that it would give no relief whatever to any claimant against a purchaser for valuable consideration without notice. It was urged upon me that authority to this effect was to be found in some recent decisions of this court, and particularly in the case decided at the Rolls of the Attor- ney-General V. Wilkins.'' I undoubtedly was struck with the novelty and extent of the doc- trine that was thus advanced, and in order to deal with the argument it becomes necessarj' to revert to elementary principles. I take it to be a clear profJbsition that every conveyance of an equitable interest is an innocent conveyance ; that is to say, the grant of a person entitled merely in equity passes only that which he is justly entitled to, and no more. If, therefore, a person seized of an equitable estate (the legal estate being outstanding), makes an assurance by way of mortgage or grants an annuity, and aftei*wards conveys the whole estate to a pur- 1 17 Beav. 285. SECT. I.] PHILLIPS V. PHILLIPS. 333 chaser, he can grant to the purchaser that which he has, viz. the estate subject to the mortgage or annuity, and no more. The subsequent grantee takes only that which is left in the grantor. Hence grantees and incumbrancers claiming in equity take and are i-auked according to the dates of their securities; and tlie maxim applies, " Qui prior est tempore potior est jure." The first grantee is potior ; that is, pjotentior. He has a better and superior — because a prior — equitj'. The first grantee has a right to be paid first, and it is quite immaterial whether the subsequent incumbrancers at the time when they took their securi- ties and paid their money had notice of the first incumbrance or not. These elementary rules are recognized in the case of Brace v. Duchess of Marlborough,^ and they are further illusti-ated by the familiar doc- trine of the couft as to tacking securities. It is well known that if there are three incumbrancers, and tlie third incumbrancer, at the time of his incumbrance and payment of his money, had no notice of the second incumbrance, then, if the first mortgagee or incumbrancer has the legal estate, and the third pays him off, and takes an assignment of his securities and a conveyance of the legal estate, he is entitled to tack his third mortgage to the first mortgage which he has acquired, and to exclude the intermediate incumbrancer. But this doctrine is limited to tlie case where the first mortgagee has the legal title ; for if the first mortgagee has not the legal title, the third does not by the transfer obtain the legal title, and the third mortgagee })y payment off of the first acquires no priority over the second. Now, the defence of a purchaser for valuable consideration is the creature of a court of equit}', and it can never be used in a manner at variance with the ele- mentary rules which have already been stated. It seems at first to have been used as a shield against the claim in equity of persons having a legal title. Bassett i'. Nosworthy '^ is, if not the earliest, tlie best early reported case on the subject. There the plaintiff claimed under a legal title, and this circumstance, together with the maxim which I have re- ferred to, probably gave rise to the notion that this defence was good only against the legal title. But there appear to be three cases in which the use of this defence is most familiar. First, where an application is made to an auxiliary jurisdiction of the court by the possessor of a legal title, as by an heir-at-law (which was the case in Bassctt v. Nosvvorthy),'^ or by a tenant for life for the delivery of title-deeds (which was the case of Wallwyn v. Lee),^ and the defendant pleads that he is a bona fide purchaser for valuable con- sideration without notice. In sucli a case tlie defence is good, and the reason given is that as against a purchaser for valuable consideration without notice the court gives no ussiHtance ; that is, no assistance to the legal title. But this rule docs not ai)ply where the court exercises a legal jurisdiction concurrently with courts of law. 'J'hus it was de- 1 2 I". Wm8. 491. 2 Finch, 102; s. c. 2 White & T. L. C. 1. » 9 Vee. 24. 334 niiLLirs v. phillips. [chap. hi. oidod l>y Lord Tluirlow in Willianis v. Lanibe,' that the defence could uot be pkwdod to a bill for dower ; and by Sir J. Leach, iu Collins v. Archer,- that it was uo answer to a bill for tithes. Iu those cases the court of equity was not asked to give the plaintiff any equitable as distinijuishod from lecral relief. The second class of cases is the ordinary one of several purchasers or incumbrancers each claiming in equity, and one who is later and last in time succeeds in obtaining an outstanding legal estate not held upon existing trusts or a judgment, or any other legal advantage the possession of which may be a protection to himself or an embarrass- ment to other claimants. He will not be deprived of this advantage by a court of equity. To a bill filed against him for this purpose by a prior purchaser or incumbrancer, the defendant may maintain the plea of purchase for valuable consideration without notice ; for the principle is, that a court of equity will not disarm a purchaser, that is, will not take from him the shield of any legal advantage. This is the common doctrine of the tabula in naitfragio. Thirdly, where there are circumstances that give rise to an equity as distinguished from an equitable estate, — as, for example, an equity to set aside a deed for fraud, or to correct it for mistake, — and the pur- chaser under the instrument maintains tlie plea of purchase for valu- able consideration without notice, the court will not interfere.^ Now these are the three cases in which the defence in question is most commonly found. None of them involve the case that is now before me. It was indeed said at the bar that the defendants, being in possession, had a legal advantage in respect of the possession, of which they ought not to be deprived. But that is to confound the subject of adjudica- tion w'ith the means of determining it. The possession is the thing which is the subject of controversy, and is to be awarded by the court to one or to the other. But the subject of controversy, and the means of determining the right to that subject are perfectly different. The argument, in fact, amounts to this: " I ought not to be deprived of possession, because I have possession." The purchaser will not be de- prived of anything that gives him a legal right to the possession, but the possession itself must not be confounded with the right to it. The case, therefore, that I have to decide is the ordinary case of a person claiming under an innocent equitable conveyance that interest which existed in the grantor at the time when that conveyance was made. But, as I have already said, that interest was diminished by the estate that had been previously granted to the annuitant, and as there was no ground for pretending that the deed creating the annuity was a voluntary deed, so there is no ground whatever for contending that the estate of the person taking under the subsequent marriage 1 3 B. C. C. 264. 2 1 Russ. & Mylne, 284. ' As to the alleged difference between an equity and an equitable estate, see 1 Harvard Law Rev. 2. — Ed. SECT. I.] NEWMAN V. NEWMAN. 335 settlement is not to be treated by this court, being an equitable estate, as subject to the antecedent annuity, just as effectually as if the an- nuity itself had been noticed and excepted out of the operation of the subsequent instrument. I have no ditiieulty, therefore, in holding that the plea of purchase for valuable consideration is upon principle not at all applicable to the case before me, even if I could take notice of it as having been rightly and regularly raised. "We next come to examine the authorities upon which the defence relies. Now, undoubtedly, I cannot assent to some observations which I find attributed to the Master of the Rolls in the report of the case of the Attorney-General v. Wilkins ; ^ but to the decision of that case, as explained by his Honor in the subsequent case of Colyer v. Finch,^ I see no reasonable objection, and the principles that I have here been referring to are fully explained and acted on by the Master of the Rolls in the case of Colyer f>. Finch. ^ It is impossible, therefore, to suppose that he intended to lay down anything in the case of the Attorney-General v. Wilkins,* which is at variance with the ordinary rules of the court as I have already explained them, or which could give countenance to the argument that has been raised before me at the bar. I have consequently no difficulty in holding that the decree of his Honor the Vice Chancellor is right upon the grounds on which he placed it in the court below, and that also it would have been right if he had sonsidered the grounds which have been urged before me in support of this petition of reliearing. I therefore affirm the decree and dismiss the petition of rehearing ; but inasmuch as the plaintiff sues in forma pauperis^ of course it umst be dismissed without costs.* NEWMAN V. NEWINIAN. In Chanceut, befoue North, J., Jankaky 12, 1:3, 14, l.'>, 19, 1885. [Reported in 28 Chancerij Division, 674.] In the year 1801) a lease of the New Dynevor Colliery was made to certain persons, one being Micliaol Lewis Hrown, who took tiirec-cighths of the colliery, as to one moiety tiiereof for himself, and as to the other moiety in trust for Kdwin Newman. » 17 Beav. 2S5. 2 19 Beav. .500. " Thore i« lir-lifvnd to bo a Htroiip analofjy Jtotwpoii an of|iiit;ilplc ront rliarf^o aiul .1 partial ;u'6, gave a bond according to law, and received a large amount of property, real and personal, aud, after the settlement of his second account, absconded, having appropriated to his own use a large portion of the trust estate. On the 2d of April, 1859, being largely indebted to the Union Bank, in New York, for money borrowed, he executed to them an assignment, by which he purported to transfer " the share of the estate, both real aud personal, of my late father, John Belknap, which by the terms of my said father's will can in any event vest in me, as one of his heirs or devisees, and all my right, title, and interest therein, including any accumulations made» or hereafter to be made of the income of said estate," This assignment was made as additional collateral security, the bank not being satisfied with what they then had. The greater part of that in- debtedness is still unpaid. It did not appear w^hether he was a defaulter to his father's estate at the time of executing the assignment; but it did appear that the officers of the bank had no knowledge or reason to believe that no [a?J default or misapplication of the funds held under the will had then been made. SECT. I.] BELKNAP V. BELKNAP. 343 As against Edward Belknap, the bill was taken for confessed ; aiad the Union Bank alone opposed the granting of the relief sought for. A receiver was appointed to take charge of the estate, pending the suit ; and it appeared by his accounts that the share of the income, and the commissions, to which Edward might have been entitled, if he had not been a defaulter, had been reserved. It was contended, in behalf of Henry Belknap, that this share of the income and the commissions ought to be applied to make up the amount of the principal which has been misapplied by Edward ; and other parties contended that the same should })e applied first to make up the deficiency in the income. The case was reserved for the determination of the whole court. ^ A. H. Fiske & G. Putnam, Jr., for the plaintiffs. W. R. P. Washburn, for the Union Bank. HoAK, J.^ We shall have no occasion to decide the question which has been argued ni this case, whether the assignment by Edward Bel- knap to the Union Bank was of any validity whatever ; because it is very clear, upon principle and authority, that the estate in the hands of the trustee is bound in equity to discharge the legacies to the other cestuis que trust, before he or his assigns can claim any part of it, if the estate has been diminished by a violation of his duties as trustee. The ecpiities of those to Avhom he is bound by his assumption of the trust are prior and superior to any which he can create in the trust fund by contract. As it was held in Fuller v. Knight, 6 Beav. 205, a trustee cannot bargain away his power to make good a deficiency in the trust fund, arising from his breach of trust. The doctrine is very succinctly stated in Morris v. Livie, 1 Y. & Coll. 380, of which the marginal note is as follows : " If an executor assigns his reversionary legacy, the assignee takes it subject to the equities which attached to the executor ; and therefore if the latter, though suV)S(Hiiiently to the assignment, wastes the testator's assets, the assignee cannot receive the legacy till satisfaction has been nuide for the breach of trust." That case was very elaborately argued and carefully considered, anci seems more directly in point than any other wliich has been cited. Though not binding upon this court as an authority, we are satisfied that it rests ui)on sound principles of equity. A distinction has been strongly pressed by the counsel for the Union Bank, supposed to arise from oiu' statute provisions wliidi require se-' curity to be given by executors and trustees for tlie faithful perform- ance of tiieir trusts. But it is dillicult to sec any ecpiity which tiio assignee of a trust fund wiiich is to remain in the hands and under the nuinagement of the assignor can have against the sureties on his oflicial bond. Tlie assignor certainly has no claim on the surety to make good to liini any loss by his own unfaithfulness. If there were no assign- ' Tlio Htatomnnt of facts haa been sliglitly abridged, and tho citations of counsel are oinitteil. — Ed. ^ BuiELOW, C. J., did not sit in this case. 344 BF.LKNAP V. BELKNAP. [CIIAP. III. ment, equity would obviously require the trustee to pay everything due to others beuelieiuUy interested in the fund, if the fund were diuiiuished by his dishones?ty, before ap[)lyiug any further part of it to his own use. And there seems to be no good reason why the assignee should be put in a better condition than the assignor. It would be in etfeet to allow the assignor to take to his own use his share of the trust fund, and by contract with a third party to east upon his otlicial surety the burden of making it good to a purchaser. The Union Bank, when the}' took the assignment, knew that it was of a fund held by P^dward Belknap in trust, and which was to continue under his care and management. They took it subject to all the risks of such a condition of things ; subject to all equities in favor of the other cestuis que trust, arising from the fact that the assignor was trus- tee y and they acquired no equitable rights against the sureties in the probate bond, because their grantor had none which he could convey. It does not appear that the defalcation by Edward Belknap is equal to the share of the estate of which he is entitled to the income. If it is not, it is equally for the interest of the bank, and of those who may be entitled to the reversionary interest, if he should not survive his mother, that his share of the income should be applied to make good the capital. The decree will therefore be, that the assignment shall have no force or effect against any persons beneficially interested in the estate, other than Edward Belknap. The commissions which have been retained as belonging to Edward Belknap are to be applied first to the payment of the charges and ex- penses of the receiver. If there is any part remaining, it is next to be appFied to the costs of the suit ; and the remainder, if any, is to be distributed as income. The income belonging to Edward Belknap must be applied to make good the deficiency in the trust fund which he has caused. He must be removed from the trust, and a new trustee appointed, and the case sent to a master to take an account ; and all other questions, including that of the ultimate rights of the Union Bank under the assignment, except so far as already determined, be reserved. SECT, n.] ANONYMOUS. 345 SECTION II. By Death. (a) Death op the Tbustee. ANONYMOUS. In the , Trinity Term, 1468. [Reported in Year Book, 8 Edward IV., folio 6, placitum l.^] And it was moved whether a subpoena would lie against an executor or heir. And Choke, J., said that he had formerly sued a subpa'na against the heir of a feoffee, and the matter was long debated. And the opinion of the Chancellor and the justices was that it did not lie against an heir, and so he sued a bill to Parliament. Fairfax. This matter is a good stem for discussion when the others come, &C.'' ^ Ellesmere, Office of Chancellor, 86, pi. 26, s. c, to which report the author adds : " Note that it must he intended that the heir had not this land, but that the laud was sold before by the feoffee to a stranger; for if the heir had the laud, he is liable to the trust as well as the feoffee." See also Cary, 16 ; Ellesmere, Office of Chancellor, 94, pi. 49. — Ed. "^ "The Chancellor said (in 1482) that it is the common course in the cliancery to grant [subpuuna ?] against an obligation and so upon a feoffment in trust when the heir of the feoffee is in by descent or otherwise, for we find records of this in the chancery. HusE, C. J. When I first came to court, thirty years ago, it was agreed in a ca.«e by all the court that if a man had enfei)aiia w;is never allowed until tlie time of Henry VI., and in this point the law w.'w changed by Fortescue, C. J." Keil, 42, pi. 7. " Note, th.at a subpa-na lies against the heir of the feoffee who survives." Fitzh. Abr. Subp(tna, pi. 14, citing Y. M. 14 Kd. IV. (1474). It seems almost superfluous to state at the present day that the heir of an intestate trustee takes the legal title to trust property subject to the trust. Fleeming v. Ilowden, L. II. 1 Sc. App. .172; Waggener u. Waggcner, 3 Monr. .')42 ; Rloom r. Hag(Ky. 1H!U), 16 S. W. R. 714 ; Drnid Cf). v. Oettingcr, .VJ Md. 46 ; Harlowe r. Cowdrcy, 1()'.» Mass. 183 ; Hook V. I)yer,47 Mo. 214. 2I« ; Schenck v. Schenck, 16 N. J. Erp 174 ; Zabriskie i^. Morris Co., 33 N. J. Eq. 22 ; Woodruff r. Woodruff, 44 N. J. Ivp 349 ; Craves r. Trnci)lood, 96 N. Ca. 49.''> ; Carlisle's Ap])., 9 Watts, 331 ; Hard's App., 3 Watts & S. 459; Hnckabee r. Newton, 23 S. Ca. 291 ; Watkius v. Specht, 7 Cohlw. .585. >46 WESTON V. DANVERS. [CILVP. IIL WESTON V. DANVERS. In Chancery, 1584. [Reported in ToUiill, 105.] The heire is not in equitie bound to assure lands which his father bargained and toolve money for.^ If the trust property is personal, the executor or administrator of the trustee takes the legal title subject to the trust. Deering v. Torriugton, 1 Salk 79 ; Wlieatley v Purr, 1 Keen, 551 ; Trecothick v. Austin, 4 Mason, 16, 29; Veil v. Mitchell, 4 Wash C. C. 105; Dearman v. Radcliffe, 5 Ala. 192; Mauldin v. Armistead, 14 Ala. 702 Powell V. Kno.v, 16 Ala. 364; Bloxham v. Cowne, 19 Fla. 163; Keister i>. Howe, 3 lud. 268 ; (but see Pratt v. Cave, 46 Ind. 67 ;) Thompson v. White, 45 Me. 445 Thomas v. Kapff, 6 Gill & J. 372 ; Farrelly v. Ladd, 10 All. 127 ; Childs v. Jordan, 106 Mass. 321; Schenck v. Schenck, 16 N. J. Eq. 174; Dias v. Brunell, 24 Wond. 9 Moses V. Murgatroyd, 1 Johns. Ch. 119; De Peyster v. Ferrer.s, 11 Paige, 13; Banks V. Wilkes, 3 Sandf. Ch. 99 ; Bucklin v. Bucklin, 1 Abb. App. 242 ; Bunn v. Vaughan, 1 Abb. App. 253 ; Emerson v. Bleakley, 2 Abb. App. 22 ; Re Howell, 61 How. Pr. 179 ; Boone v. Citizens' Bank, 84 N. Y. 83 ; Wetmore v. Hageman, 88 N. Y. 69 ; Re North Co., 63 Barb. 556 ; De Peyster v. Beckman, 55 How. Pr. 90 ; Whitley v. Foy, 6 Jones, Eq. 34 ; Quinby v. Walker, 14 Oh. St. 193 ; Towne ).'. Bircliell, 2 W. N. (Pa.) 304 ; Read V. Read, 8 Rich. Eq. 145. If one of several co-tru.«!tees dies, the legal title survives to the others. Co. Lit. 113; Billingstey y. Mathew, Toth. 168; Gwilliams v. Rowel. Hard. 204; Hudson U.Hud- son, Talb. 127, 129; Atty.-Gen, v. Glegg, Amb. 584; Warburton v. Sandys, 14 Sim. 622 ; Read v. Godwin, 1 D. & Ry. 259 ; Cape r. Bent, 9 Jur. 653 ; Watson v. Pearson, 2 Ex. 581 ; Lane v. Debenham, 11 Hare, 188; Wheatley v. Boyd, 7 Ex. 20; Peter v. Beverly, 10 Pet. 532 ; Sanders v. Schnaelzle, 49 Cal. 59; Richeson v. Ryan, 15 111. 13 ; Colder v. Bressler, 105 111. 419; Gray v. Lynch, 8 Gill, 403 ; Gutman v. Buckler, 69 Md. 7 ; Webster v. Vandeventer, 6 Gray, 428 (sembk) ; Stewart v. Pettus, 10 Mo. 755; Wills V. Cooper, 1 Dutch. 137; Osgood v. Franklin, 2 Johns. Ch. 1, 14 Johns. 527; Shook V. Shook, 19 Barb. 653; Shortz v. Unangst, 3 Watts & S. 45; Williams v. Otey, 8 Humph. 563 ; Nichols v. Campbell, 10 Grat. 560. But see contra, Boston Co. v. Condit, 19 N. J. Eq. 394 ; Miles v. Fisher, 10 Oh. 1. — Ed. In England, by a recent statute, on the death of a sole trustee of land the title vests in the personal representative like a cliattcl real. Re Pilling's Trusts, 26 Ch. D. 432 ; Lewin, Trusts (9th ed.) 233. 234. But see as to copyholds Re Mills, 37 Ch. D. 312. In some jurisdictions under the circum.r. I'cff. ul Uses, fol 338, pi. 10. — Ed. 348 THE KING V. MILDMAY. [CHAP. III. SIR WILLIAM HIX v. THE ATTORNEY GENERAL and anothek. In the Exchequer, Hilary Term, 1661. [Reported in Hardres, 176.] Upon English bill the case was, that Sir William Hix put £100 out at interest to the defendant, and took bond in the name of one Toomes, who afterwards became a Felo de se; and now the plaintiff was relieved against the King upon this trust in equity, upon the Statute of 33 H. Till. c. 39, sed qucere whether that statute extends to any equity against the King otherwise than in case of pleas by way of discharge. But it was likewise decreed in this cause that the plaintiff should be saved harmless from all others. THE KING V. DAME JANE ST. JOHN MILDMAY, Lady ob THE Manor of Marwell, and WILLIAM BRAY, Esquire, heb Steward of said Manor. In the King's Bench, Trinity Term, 1833. [Reported in 5 Barnewall Sj- Adolphus, 254.] LiTTLEDALE, J., in the course of this term, delivered the judgment of the court. ^ After stating the mandamus and return,^ his Lordship proceeded as follows : — The question is, whether if a copyhold tenant surrender his estate to the use of another, and afterwards commits and is convicted of felony before admittance of the surrenderee, the estate is by the custom for- feited to the lord ? The case was argued l>efore us very elaborately, and all thft authori- ties were fully entered into. The court did not at the time feel greatly pressed by the weight of those authorities ; but, as they were numerous, and the argument was chiefly from analogy, we wished to look into them. After a careful examination of them, we are of opinion that the estate is by the custom forfeited to the lord, and that a peremptory 1 See supra, 70, n. 1. — En. 2 The mandamus, after reciting the custom of the manor in regard to surrenders, stated that John Boyes, a tenant of the manor, surrendered his tenement August 4, 1830, to H. Southwell; that Southwell demanded admittance, but that the defendants refused. The return stated that Boyes, after the surrender, was convicted of felony, and that by the custom of the manor the tenement of a tenant convicted of felony escheated to the lord of the manor. A rule nisi was obtained for qaashing this return as insufficient. — Ed. SECT. II.] THE KING V. MILDMAY. " 349 majidaynus ought not to issue. It is conceded that, as between the sur- renderor and the surrenderee, the latter cannot be prejudiced by any act done by the former subsequent to the surrender, but is entitled to be admitted to the estate free from all mesne incumbrances. It is con- ceded also that the surrenderor, until the admittance of the surrenderee, continues tenant to the lord for all purposes of service. The estate, therefore, does not by the surrender vest in the lord. It is conceded also that the surrenderee before admittance takes nothing, but that on admittance he is in by relation from the time of the surrender, as be- tween him and the surrenderor, yet he has not been tenant in the mean time ; for it is distinctly held, in Doe dem. Jeffries v. Hicks, ^ that if he be attainted in the mean time, the lord will not take by forfeiture. If, then, no act of the surrenderee before admittance will work a forfeiture, and if it were held that the surrenderor after surrender, although he be tenant, cannot by any act of his work a forfeiture, it would follow that a considerable time might elapse, during which the lord's right of escheat is suspended, and that not by any act of his own, but by the acts of others, which he cannot prevent ; for he can neither refuse to accept a surrender, nor compel a surrenderee to come in and be admitted. We do not find any authority for such a proposi- tion. On the contrary, it is laid down by Lord Chancellor Maccles- field, in Peachey v. Duke of Somerset,'^ that the lord must always have such a tenant upon his lands as may be sufficient to answer all demands, and capable of committing forfeitures. There are many authorities relating to freehold estates, and some relating to copyholds, which show that the tenant shall forfeit only that which he has ; and therefore in Pawlett v. The Attorney General (which was a ease of freehold), it was held that the mortgagor had a riglit to redeem against the crown, where the mortgagee in possession had been attainted ; but it is plain that in that case Lord C. B. Hale, sitting in equity, treated the mortgagee's interest in the land as a mere pledge and security for money. It is no authority whatever for saying that the estate was not forfeited to the lord at law. It was argued that the court, in cases of maiidamvs to admit to copyhoUl estates, frorpiently looks to equitalilc interests ; but, without at all denying that this may be so in some instances, it seems clear that this court cannot, in such a case as the present, enter into a question of trust or adjust the equitable rights of thf parties. Upon tiic whole, without miiuitcly examining all the cases cited by the learned counsel for the surrenderee, we are of opinion, that as the surrenderor is conceded to be tenant for all purposes of service until the admittance of the surrenderee, so he is also tenant for the purpose of forfeiting. llule discharyed.' 1 2 Wils. 13. 2 1 Stra. 4rA. « Elle.smerri, Ofllro of Cli.inrfllnr, f. 0.1, pi. 4R ; Joiik. C Cent. j.l. .10; roaclioy r. Somerset, 1 Stra. 447, 4.54; P>urK''.''a v. Whoatc, 1 Ed. 177, 201, 240 (armlilp) ; Atty. Gen. i;. Leeds, 2 M. & K. 343 ; Ucnzoiii v. Lenoir, 1 Dev. Eq. 225; King v. Khew. 108 350 • THE KING V. MILDMAY. [CHAP. III. N. C. 700 Accord. See also Reeve v. Atty. Gen., 2 Atk. 223 ; Hodge v. Atty. Gen., 3 T. & C. 34J. Molton V. Henderson, 62 Ala. 426, contra. lu Jiukius, 6 Oout. j>l. 30: "At this day, where the tenant of the land is attainted of felony or treason, the use and trust for this land are extinguished ; for tlie king, or the lord to wliom the escheat belongs, comes in in the past, and paramount the trust ; and upon a title elder than the use or trust, viz. the riglit of his lordsliip by escheat for want of a tenant." In Atty. Gen. v. Leeds, supra, Sir John Leach, M. R., said, p. 347 : " It was settled by the case of Burgess v. Wheate that a cestui que trust has no title as against the lord, who claims by escheat upon the death of the trustee witliout heirs." In Heuzeiu v. Lenoir, supra, Henderson, J., said, p. 2.57 : "If Cossart [the trustee] has lost his estate, the cestui que trusts have lost theirs also ; their interest, being a mere sliadow of the legal estate, vanishes when that ceases to exist, that is, when a different one arises, or, in the language of the law, where another comes in the post to an estate in the lands. I do not mean where the estate, to which the trusts were annexed, falls into other hands than those appointed by the creator of the trust to take it ; as where the devisee in trust dies before the de\ isor, there the lieir takes the estate subject to the trust. The law is the same as to tenants by the curtesy, tenant in dower, and the bargainee under a bargain and sale, who are said not to come in by the trustee, but by the law, their estates being the same with that of the trustee, and cast upon them by law, although not created by the act of the party. Nothing but the technical expressions, tlie j>er and the post, and not going beyond the letter of the maxim into the principle ui)on which it is founded, can for a moment sustain the idea that those estates were detached from the trusts. But the lord who comes in by escheat above his tenant's estate, the abator, the intruder, the disseisor, who thereby acquire a new estate, aPe not affected by the trust ; and if as against them the trustee loses the legal estate, the trusts immediately vanish, as the shadow disappears when the substance is gone." The notion that the lord taking by escheat is bound by a trust is countenanced only by the dissenting opinion of Lord Mansfield in Burgess v. Wheate, 1 Ed. 177, 229, the reasoning in which is fully answered in Lewin, Trusts (3d ed.), 281, by an alleged but improbable dictum of Lord Bridgman in Geary v. Bearcroft, Cart. 67 (see 1 Har- grave's Juris. Exer. 383, 391), and by loose dicta in Eales v. England, Prec. Ch. 200, and White v. Baylor, 10 Ir. Eq. R. 43, 54. By St. 47 & 48 Vict. c. 71, § 6 (following the earlier acts 39 & 40 Geo. III. c. 88, § 12, and 13 & 14 Vict. c. 60, §§ 15, 46), the right of the cestui que trust is saved, although the legal title escheats by the failure of heirs of the trustee. See Re Martinez's Trusts, W. N. (1870), 70. — Ed. Uses. — The lord taking by escheat on the death of a feoffee to uses without heirs was not bound by the use. Y. B. 14 Hen. VIII. f. 4, pi. 5 ; supra, p. 283 ; Bro. Ab. Feff. al Uses, pi. 40 ; Chuddleigh's Case, 1 Rep. 122 a, 139 b. In Chuddleigh's Case, supra, Lord Coke said : " Without question a feoffee upon good consideration without notice, disseisor, or lord by escheat, lord of a villain, cor- poration, an alien born, a person attainted shall not stand seised to a contingent use, DO more than to a use in esse before the statute of Hen. VIII. ; " and Popham, C. J., said, in the same case, 139 b : "The reason why the lord by escheat, or the lord of a villain, should not stand seised to an use, is, because the title of the lord is by reason of his elder title, and that grows either by reason of the seigniory of the land, or of the villain, which title is higher and elder than the use or confidence is; and there- fore should not be subject to it." — Ed. SECT. IL ] ANONYxMOUS. 351 SECTION II. (continued). The Descent of Trust Property/, (b) Death of Cestui que Trust. ANONYMOUS. In the , Michaelmas Term, 1465. [Reported in Year Book, 5 Edward IV., folio 7, placititm 16.] If J. enfeoffed A. to his use and A. enfeoffed R., although he sold the land to him ; if A. gave notice to R. of the intent of the first use, he is bound by writ of subpcpna to perform the will, &c. But if tenant in borough-Elnglish enfeoffed one to the use of him and his heirs, the youngest son shall have the subpoena and not the heir general ; ' likewise if a man makes a feoffment in trust of land descended to him on the maternal side and dies without issue, the heir ex parte materna shall have the subpccna.^ • 1 Y. B. 21 Ed. IV. fol. 24, pi. 10 ; Y. B. 27 Hen. VIII. fol. 9, pi. 22 ; Jones v. Heas- bie, 2 Roll. Abr. 780, pi. 7 ; Fawcet v. Lowther, 2 Ves. Sen. 300, 304 {setnble) ; Banks V. Sutton, 2 P. Wins 713 (semble) Accord. — En. 2 Burgess v. Wheate, 1 Eden, 186, 216, 256; Langley v. Sneyd, 1 S. & S. 45, 55; Nanson v. Barnes, L. li. 7 Eq. 250 Accord. " If by a custom of a manor land ought to descend to the eldest daughter only, ex- cluding the otlier daughters, there being no son, and a tru.st in equity descends to the heir, tliis shall go to the eldest daugliter only, to be relieved upon this in equity accord- ing to the custom for the land. P. 10 Car." 2 Roll. Ab 780 [D] 7. A husband who is entitled by statute to the " personal estate " of liis wife dying in- testate, succeeds to personalty held in trust for lier. Bartlott v. Bartlett, 137 Mass. 156. In Banks v. Sntton, 2 P. Wms. 700, Sir J. .Jekyll, :\r. R.,.said, p. 71.'? : "That trusts and legal estates are to be governed l)y the same rules, is a niaxim that olitains univer- sally ; it is so in the rules of descent, as in gavelkind and borough-English there is a posaestio fratrix of a trust as well as a legal estate (n) ; tlie like rules of liniitatioti (')), and as also of Ijarring entails of trusts (c), as of legal estates." See to the same effect Frecdman's Co. t;. Earle, 110 U. S. 710, 713. — Ed. (a) Chudleigh's Case, 1 Rop. 121 h \ Brown's Case. 4 Bop. 22 a ; Wimbish v. Tail- bois, Plowd. 58; Cimningham v. Moody, 2 Ves. 174 ; Buchanan v. Harrison, 1 Johns. & H. 662 Accord.— VAt. (h) Brydges v. Brvdgfs, .■? Ves. Jr. 120, 127; AV White, 7 Ch. I). 201 Accord. — En. (c) Ooodrick v. Brown, Freem. C. C. 180; Washbourn v. Downes. 1 Ch. Cft. 213; Brydges v. Brydges, 3 Ves. Jr. 120, 127; Wykhain v. Wykliam, 18 Ves. 418 Aceord. — Ed. 352 ANONYMOUS. [CHAP. III. REX V. WILLIAMS. In Chancery, February 19, 1735. [Reported in Bunbury, 342.] Two joint purchasers of a lease for years assign this lease to a third person (a friend of one of the jointenants, and with the consent of tlie other) but it was without consideration, and no declaration of trust was given, and so the defendant confessed in his answer ; the jointenant who consented to assign died in debt. Upon the bill and answer the question was, whether this trust shall result for the benefit of the jointenant surviving only as it would at law ; or whether the creditors of the jointenant that died should come in for an equal moiety in equity. Nota^ The trustee was made executor to him that died, and was also a creditor of his. Nota, The two jointenants continued to receive the profits jointly after the assignment. Upon this state of the case the whole Court were of opinion that though survivorship is looked upon as odious in equity, yet that in this case the trust shall survive for the benefit of the surviving cestui que ti'ust only.^ ANONYMOUS. In the , Michaelmas Term, 1465. [Reported in Year Book, 5 Edward IV., 7, placitum 18.2] If there are lord and tenant, and the tenant enfeoflfs one without declaring his will and commits a felony, gucere^ who shall have the subpoena, for the lord shall not have it.' 1 Aston (.'. Smalhnan, 2 Vern. 5.56; York v. Stone, 1 Salk. 158 Accoid. — 'El>. 2 Ellesmere, Office of Chancellor, f. 85, pi. 22, 8. c. — Ed. 8 2 And. 200; .Tenk. Cent. Cas. 190 Arcord. So the lord was not entitled to the wardship of the heir of cestui que use until it was given him by a statute. Y. B. 27 H. Vni. 8-22. — Ed. SECT. II.] THE KING V. DACCOMBE. 353 THE KING V. The Executors of SIR JOHN DACCOMBE. In the Exchequer, Michaelmas Term, 1618. [Reported in Croke's James, 512.1] King James made a lease to Sir John Daccombe and others, of the provision of wines for his Majesty's house for ten years, in trust for the Earl of Somerset. They made a lease for all the term except one month, rendering nine hundred pounds a year. The Earl of Somerset being afterwards attainted of felony, the question was, whether the trust which was for the said earl was forfeited to the king by this 'attainder. And it was referred to all the justices of England, by com- mand from the king, to be considered of, and to certify their opinions. Tanfield, Chief Baron, now delivered all their opinions to be, that this trust was forfeited to the king, and that the executor shall be compelled in equity to assign the residue of the term and the rent to the king. And he cited a case to be adjudged, 24 Eliz., where one Birket had taken bond in another's name, and was afterwards out- lawed, that the king should have this bond ; and that in 24 Eliz. one Armstrong, being lessee for years, assigned the lease to another in trust for himself, and being attainted of felony, this trust was for- feited to the king. But he said they all held, and so it was resolved in another case,^ that a trust in a a freehold was not forfeited upon attainder of treason.^ Note, This case I had from the report of Humphrey Davenport, who was of counsel in this case.* 1 Aleyn, 10, Hob. 214, 1 Sid. 403, Jenk. 6 Cent. pi. 30, Jenk. 7 Cent. pi. 39 s. c — Ed. 2 Abington's Case (11 Jac.) Hard. 490 (cited). " It was said [with reference to the Stat. 3."J II. VIII.] that jio u.se can be forfeited at this day [ir)93-l.')98] except the use of a cJiattel U-a.se ; for all usci of freehold are executed by Stat. 27 II. VIII. in posses- sion, so there is no use to be forfeited." 1 And. 294. See 4 Greeubag, 82. — Ed. 8 Hut see Lewin Tru.sts (9th cd.), 932-34. — Ei>. * Bro. Ab., Feoff, al U.se, 4.') ; Wike's Case, Lane, 54 ; Smith r. Wheeler, 1 Mod. 16 (semhle) ; Kaleij^b's Ca.so, Hard. 4^)0 (cited); Al)ington'8 Case, Hard. 490 (cited); Morgan's Cxse, 2 Roll. Ab. 807 [B] 9 ; King i;. Laniot, 2 Roll. Al). 807 [B] 11 ; Eustace V. Kildaro, 2 Ch. Ca. 188, 1 Vern. 405 ; Angier's (Jaso, Hard. 490 (cited) ; Bishop v. Curtis, 18 Q. B. 878 ; Up Thompson's Trusts, 22 Beav. 500; /,V Bateinan's Trust. 15 E(j. 355 Accord. But the crown, althougli entitled to the trust, would always upon the apj)iication of a creditor of the cpstni que trust give the creditor the benefit of the trust. Balch v. Waatall, 1 P. Wins. 445. — Ed. 23 )54 king's attorney v. sands. [chap, iil KING'S ATTORNEY v. SIR GEORGE SANDS. In the Exchequer, K^ster Term, 1669. [Reported in Freeman, Chancer^/ Cases, 129.*] Sir Ralph Freeman purchased a lease for years of several manors ; afterwards he purchased the inheritance thereof, in the name of Sir George Sands, being his son-in-law, in trust for Sir Ralph and his heirs ; afterwards Sir Ralph made his will, and made Mr. Freeman his executor, and appointed that his said executor and Sir George Sands ^ould convey part to Freeman Sands, and part to George Sands, the two sous of Sir George Sands, and their heirs ; the residue to all the sons of Sir George Sands, by his then lady (Sir Ralph's daughter),* aud their heirs, who should be living at the time of his death, and then died. Sir George Sands, at the time of the death of Sir Ralph, had only Freeman Sands (who soon after died without issue) and the said George Sands ; but afterwards Sir George had issue another son, called Freeman Sands. Mr. Freeman, the executor, refused the execu- torship, whereupon administration was granted to Sir George Sands ; afterwards, no conveyance being made either of the lease or of the reversion by Sir George Sands, who had both in trust, according to the will. Freeman Sands killed George, his brother, and was afterwards attainted of murder. The question was, whether any of those trusts, either of the lease or of the reversion, that were so in Sir George, in trust as aforesaid, were forfeited to the king, of whom the lands were holden, by this felony and attainder; who, by the king's attorney, sued Sir George on the equity side of the Exchequer, to answer the profits to the king, sup- posing those trusts to be forfeited by the felony and attainder. The case was several times argued at the bar, and this term Chief Baron Hale and Baron Turner (Rainsford being removed into the King's Bench, and Atkins disabled by age) both agreed that this trust was not forfeited. In their arguments it was agreed, cestui que trust in fee, or fee tail, forfeit the same by attainder of treason,^ and the estate to be executed to the king in a court of equity, by 27 H. VIII. 10, and 33 H. VIII. 2. An alien cesf^d que trust of any estate, the estate belongs to the king ; which, the Chief Baron said, was the opinion of the judges in 1 Nels. 1.30, 3 Ch. ■Rep. .3.3, Hard. 40.5, 488 s. c. — En. 2 In the King v. Lord Nottingham, Lane, 4.5, it is observed, "It would be incon- venient that the same land should be subject to several forfeitures, at the same time, bj several men ; " and it has been declared, subsequently to the present case, and in opposition to the dictum in the text, that the trust of a freehold is uot forfeited to th« crown by the cestui que trust being attainted of treason : The King v. The Executors of Sir .John Daccombe. Cro. Jac. 513 ; though, in the same case, it was adjudged that cestui que trust of a chattel interest, upon attainder of felony even, forfeits the same to the crown. SECT. II.] king's attorney V. SANDS. 355 Holland's Case,' 23 Car. I. ; and that an alien cannot purchase but for the king's use, and that he was of counsel in the case. See the case reported in Style, 20, 40. 3. As to the king's debt, by the common law, and by the practice of this court, which is of the common law, cestui que trust being in- debted to the king, the king shall have execution of his debt on this trust; for before the statute made, 4 H. VII. 17, and 19 H. VII. 5, in the time of H. VI., there be precedents in this court, that the writ of extendi fac. for the levying of the king's del)t, was of tlie debtor's land, or of any other land of which any other person was seised to his use ; and this was the reason of Sir Edward Cooke's Case,^ where the interest of the king's debt did attach upon the power of the king's debtor to revoke a settlement made of his estate ; and Pasch. 4 Jac. Ford's security, taken in trust for a recusant, was liable to the king's debt of £20 per North ; so that where the king's debtor hath the profitable part of the estate, the king shall not lose his debt by any fiction. 4. It was agreed that the trust of the reversion would not be for- feited b}' felony ; which the court held clear, and cited for authorities Marquis of Winchester's Case ; « 12 Co. 1, 2 ; 5 Ed. IV. 7 ; 2 Cro. 513 ; Stat. 33 H. VIII. And if the inheritance be forfeited for felony, it must be to the lord by. escheat, which cannot be, because he hath cestui que estate for his tenant ; and that no trust of an heir is forfeited for felony, appears by 27 H. VIII. 10, and there is no wrong to the lord as long as he hath a tenant, and therefore till the statute of It) H. VII. 15, the lord could not seize the lands of which his villein was cestui que trust; and if it be demanded what shall become of his trust, as if ten- ant in fee of a rent-charge dieth without heir, it is answered, the land shall l)e discharged of this trust, as if tenant in fee of a rent-charge die without liL'ir, or be attainted, the land is discharged. Trust of a lease for years in gross may be forfeited by felony, or outlawry in a personal action. Earl of Somerset's Case ; Dacomb's Case ; Halington's Case. Lease for years, if it be of never so long continuance, if it be as- signed in trust for J. S. and his heirs, yet it shall go to his executors ; yet trusts are ruled according to the style and course of courts of equity. A real chattel in law survives to the husband, but not the trust,* of a real chattel. Co. Lit. Cap. Remit. H.'il. Cestui que trust of an inlieritaufo I)iiids himself and Iiis lioirs in a T)ond, this trust is not assets to llic Inir; though it hath since been questioned in the Lord Chancellor Hyde's time: but clearly the trust •of ft lease for years is assets to charge j\n executor in etiiiity. So a trust assigned over to wait upon the inheritance, thougii of a term, shall go to the heirs, nnd heirs of the body, because a shadow 1 Aleyn, 14. ' 2 Rollo'g Rep. 294. « 3 Co. * See Freem. C. C. c. .32, p. 20, note 3. 356 BUKGESS V. WHEATE. [CHAP. III. kept on foot for a special purpose ; and this hath a great resemblance to the case of charters, which go with the inheritance to the heir, but if granted over, the parchment and wax shall go to the grantee and his executors. 4 H. VII. 10. And in the present case no trust of the chattel is forfeited to the king, because the lease for years was not in Freeman, who was at- tainted of felony, nor the trust in him as a chattel, for that he must have been executor and administrator of George, the son. And here it was Sir Ralph's intent that the lease and inheritance should be confounded, and not kept separate ; and, again, Freeman could have this trust but as heir to George, and as long as he hath the inheritance in him, and no longer, but it shall go to the heir as char- ters,^ nomine poenoi, patronage by foundership, &c. ; and the mischief otherwise would be great, to have such waiting terms forfeited by out lawry. And so judgment was given against the king's attorney. BURGESS V. WHEATE. In Chancery, before Lord Henley, K., Lord Mansfield, C. J., AND Sir Thomas Clarke, M. R., January 24, 1759. [Reported in 1 William Blackstone, 123] Lord Keeper.^ I. First, I shall take notice of the claim of the crown, because several of the arguments I shall make use of on that, will tend to support the opinion I shall give on the other claims. The question on the information is, whether the cestui que trust dying with- out heirs, the trust is escheated to the crown, so that the lands may be recovered in a court of equity ])y the crown, or whether the trustee shall hold them for his own benefit. (States the case.) On 11 January, 1718, Mrs. Harding conveys to trustees (of whom Sir F. Page was the survivor) the lands in question, in trust for Mrs. Harding, her heirs and assigns, to the intent that she should appoint such estates there- out, and to such [persons] as she should think proper. Mrs. Harding dies without making any appointment, and without heirs ex parte pa- terna. The information charges tliat the trustee took no benefit, but only for Elizabeth Harding, and to be subject to her appointment ; and that she being dead sans heirs on the father's side, and having made no disposition of the estate, that Sir F. Page could take no estate for his own benefit by the deed or the fine, but takes it for the benefit of bis Majesty, who stands in the place of the heir, and that the premises 1 Strorle V. Blackhnrne. 3 Vcs. 22r,. 2 The opinion of Lord Keeper has been slightly ahridgerl ; the conctirring opinion of Sir Thomas Clarke, M. R., and the dissenting opinion of Lord Mansfield, C. J., are omitted, on account of their great length. — Ed. SECT. II.] BURGESS V. WHEATE. 357 are escheated to his Majesty. The question, therefore, is entirely a question of tenure, and not of forfeiture. I shall consider, first, the right of lords to escheat at law. Secondly, Whether they have received a different modification in a court of equity. Thirdly, The arguments used in support of the information ; and from the whole draw this conclusion, that the crown has in this case no equity. 1. I shall consider the law of escheat, as settled by the municipal writers in the law, and reporters, and shall not regard what the law was in other countries, as they seem founded and calculated for empu-e and vassalage, to which I hope in this country we shall never be sub- ject. I will just give a specimen of the feudal law. Craig, 504. Causce Amissionis Feudi: These causes are, incestuous marriages, parricide, fratricide, friendship contracted with the lord's enemies, re- vealing the lord's secrets, if they atfect his life or reputation, outlawry not reversed, and all other causes in the discretion of the prajtor. I cite this to relieve me from the doctrine of the feudists. The legal right of escheat with us arises from the law of infeoffment to the ten- ant and his heirs, and then it returned to the lord, if the tenant died without heirs. The extension of the feoffment from the person of the tenant to the heirs special of the body, and then to his heirs and as- signs, is accurately traced in a treatise of tenures by a learned hand : ' this reduces the condition of the reversion, to this single event, viz. Ob defectum tenentis de jure. F. N. B. 337 : A writ of escheat lies where tenant in fee of any lands or tenements holds them of another, and tenant dies seised ^ without heirs general or special, the lord shall have the land : because he shall have it in lieu of his services. The books are uniform, that in the case only of tenant's dyiug without heir, the esclieat took place. As long as tenant or his heir, or, l)y his im- plied assent, another continued in possession by title, that prevented escheat. The law had no regard to the tenant's right to the land, Imt in right of his seisin. All these instances show that where there was a tenant actually seised, tiiough he iiad no right to the tenements, and though the person who had tiie right died williout heirs, yet tiie escheat was preveuted. For if tiie lord lias a tenant to perfonu tiie services, the land cannot revert in demesne. Koil. Abr. HKi; Wliittingliam's Case;« 7 Hen. I\'., Heir of Disseisor; 1 Int. 208 ?>, Feoffee of Dissei- sor. Upon these cases I would observe, that the lord's consent had 1 Sir .M. Wright. 3 "Tlio wonlH of F. N. B. nro so : l.iif, vid. V. N. H, .3.38 (C), in tlioso words : ' Ami if the tf;ii;int Ito (liPHoisfii, a?nl aftcrw.inlH dit'tli without hoir, &.C., it seeinotli the lord shall have a writ of osdieat, bccaiiHe his tenant died in the hom.ape.' Contra, 32 11. VI. 27 a, j»l. K), and so rifed in Com. Dij;. Exrhrat (U 2) ; and the distinction there is that if the tenant lie rJisHeiHcd, the lord may enter, Imt not \x:\.\v ii writ of r'sciieat ; hnt if the diHseisor had died seised, the lord could neither enter nor liave ;i writ of esrlieat, ib. ; and it seems l»y tlie reasoning; of the (•f)nrt, '.Vi II. VI. 27 a, th.it the lord can in no case have a writ of escheat, except wlicro his entry was lawful. Ihid." MS. iScrj. ililL 3 8 Hep. 42 b. 358 BURGESS V. WIIEATE. [CHAP. III. uothiug to do with establishing the right of the tenant's being duly seised, because in every one of these cases they all come in without the lord's consent ; unless it may be said that the lord is a virtual as- senter, as well to the disseisins as the legal conveyances. And then, if that be so, it would opei'ate to the establishing the right of the trus- tee here, who would say he is entitled under a conveyance in law, by the very consent of the lord ; which is a stronger case than a disseisin. From these cases and authorities it must be allowed to be settled, that the law did not regard the tenant's want of title, as giving the lord right to escheat. 2. The next consideration is, whether a court of equity can consider it in a different light. Now, when the tenant did not die seised, and a proper legal tenant by title continued, and consequently the lord's seigniory and services continued, caji this Court say to the lord, Your seignior}' is extinguished, aud to the tenant, Your tenancy is so too, though both are legal rights now subsisting at law ? In consideration of uses with regard to escheats, equity has proceeded on the same prin- ciple as the law, where there was a tenant of the land that performed the services. And I don't find this court had any regard to the merum jus of the tenant. Now, the reason why there was no escheat on the ' death of cestui que use in equity seems to be this (and it is a reason equally applicable to uses and trusts), that the court had nothing to issue a subpa'ua upon, no equity, nothing to decree upon; and every person must bring an equity with him for the court to found its juris- diction upon. It seems to me he could have no equity in the case of a use, or as owner of a trust, for this plain reason : a use before the statute could not be extended farther than the interest in the estate which the creator of the use could have enjoyed ; as if the creator of the use had a fee- simple in the land, he could take back no more in- terest in the use, either declared or resulting, than he had in the land ; if he makes a feoffment, and declares no uses, it results to him in fee, which is to him, his heirs and assigns. The consequence is, that the moment he dies without heirs or assigns, there was no use remaining. How, then, can you come here for a subpaMia (wliether he took back the same or a different use) to execute a use or trust which was absolutely extinct? That seems to me the plain and substantial reason why, in this case (whether you call it a use or a trust), there was no basis on which to found a subpa-na. Lord Chief Justice's system is very great and noble, and very equitably intentioned ; such a system as I should readily lay hold of upon every occasion, if I thought I could do it con- sistently with the rules of law„ What scintilla of equity is given to the lord ? Lord Chief Justice supposes that by feoffment to two trustees for Mrs. Harding, her heirs and assigns, and for no other use, the lord is included in " her heirs and assigns." That expression cannot do so. I think the conveyance would have been the same if " assigns " had been left out. Then it is said, the express declaration is to her heirs and assigns, and that there is an implied SECT. II.] BUKGESS V. WHEATE. 359 trust on this ; for as the trustees are to take to no other use; and the ex- press trust is served, therefore a trust in fee results to the lord, upon the extinguishment of heirs ex parte paterna^ To that conclusion I have two objections : 1. I think such a trust would, if declared, be entirely void (and whether declared by way of trust or use, it is the same thing) ; for when you have limited an estate to a man in fee, or declared the trust to him in fee, you have no more to dispose of in either case, and cannot limit one fee on another. It is said in answer to this, that she could not have limited it to Sir F. Page and his heirs in default of her own heirs, but that a person may limit anything according to the course of law, and there's a reverter to a pei-son in fee in the course of law, therefore you may limit it so. But it reverts by operation of law on extinguishment of an estate that was a fee-simple incapable of any fur- ther limitation. The donor could not have limited it so. 2. With re- gard to the resulting trust there is this objection, which seems to me unanswerable. "What is the estate conveyed to the trustees? It is Mrs. Harding's estate. Her husband and she are parties to the deed and fine. They pass all the estate that goes to the trustees. Can any- thino" result by way of trust or use to a person not privy to the estate that passes by the deed ? Where you have passed the estate without consideration, there in modern language a use results, or a trust re- sults ; because it is inequitable that a man should have an interest in the estate, when he has paid no consideration for it. But where a per- son is not party to a deed nor privy to the estate, I don't see bow any- thino- can result for his benefit. That this was the notion in respect to a use appears from authorities. The law was, that the lord could not have the escheat of a use. So is 5 Ed. IV., for I take that to be the report of a case ; then it has all the authority the Year-Books carry with them. And this has been adopted by all the writers since. Bacon, 7!>, docs not question the authority of this case. He gives a reason of his own, which he substitutes as a better than that in the l)Ooks, that there is a tenant in by title, which is a strong reason in law ; but it does not mention that as a reason with regard to the Hubpa-na. It i*s not a conclusive reason, that the lord shall not have Kid)pa'na, because there is a i)erson in possession. He should have it for that reason, if that person is lialjle to him in equity. Therefore he gives a better reason, because, says he, it never was his intent to advance the lord, but his own blood. Therefore that is tiie reason ; it would not be within the intention of that trust, tliat any besides llie blood of the covenantor should take. Nobody can imagine the tenMut intended to provide a trust to answer the lord's escheat. Mrs. H:irding never thought of escheat, I supjiose ; but had it been suggested to her, " If you die without heirs that can possibly take your estate, wouhl you rather have your frinnd you have chosen to make your trustee take it, or that it should go to the king ?" She must have been a subject of more zeal than I can suggest, if she had said she would give it to the king. 360 BURGESS V. WIIEATE. [CIIAP. III. As I am now stating the law and equity of escheats with regard to uses and trusts, I will take here notice of an objection that seems equally to affect the opinions of lawyers, with regard to the doctrine of uses and trusts ; and that is the dilemma which was urged at the bar, as the basis of an equity in the present case, though I don't think it a neces- sary dilemma, viz. that the lord must have the estate by escheat, either on the death of ceshd que trust without heirs, or of the trustee without heirs discharged of the trust ; but if he can't have it while the trustee lives, while there is a tenant, it would be monstrous that the cestui qxie trust should be prejudiced by putting the estate in the trustee's hands for the benefit of the family. One part of this is a dangerous conclusion, the other is not. My answer is, that if the law be so that the lord shall in that case take it discharged of the trust, I must suppose it no injury or absurdity at all. Volenti non fit i)ijurier, but not a tenant by the curtesy, who is in i\i% post. So all who come in in privity of estate, or with notice, or without a consideration. But a power of redemption is an equitable right inherent in the land, and binds all persons in the post, or other- wise. Because it is an ancient right, which the party is entitled to in equit}'. And although by the escheat the tenure is extinguished, that will be nothing to the purpose, because the party may be recompensed for that by the court, by a decree for rent, or part of the land itself, or some other satisfaction. And it is of such consideration in the eye of the law, that the law takes notice of it, and makes it assignable and devisable. But the most considerable things in the case are : First, that the king is in actual possession, and cannot be removed in equity by an amoveas vianitm, as he may at law. Secondly, whether there will not be a diversity betwixt the estate of a ward and an escheat : for in cases of wardships, the court of wards had jurisdiction by the 33d of Hen. VIII., but in this case here is an actual inheritance in the king. Thirdly, the statute of 33 Hen. VIII. c. 39, is to be considered, which gives relief in equity against the king. And I conceive clearly, that in this case the executor would be relieved against the heir for the money ; because in common estimation it is but a personal estate. But Baron Atkyns was strongly of opinion that the part}- ought in this case to be relieved against the king, because the king is the foun- tain and head of justice and equity ; and it shall not be presumed that he will be defective in either. And it would derogate from the king's honor to imagine, that what is equity against a common person should not be equity against him.* ' " Pawlett V. Attorney General, Hard. 465, in which Lord Hale and Baron Atkins thought the king wa.s bound hy an equity of redemption, was not a ca.se of eschrut, as called by Lord Hale, but a forfeiture." Lewin, Trusts (7th ed), 227 u. ( /'). — Ed. 370 THE EARL OF WORCESTER V. FINCH. [ciIAr. III. SECTION IV. j5z/ Disseisin. LORD COMPTON'S CASE. In the Common Bench, Trinity Term, 1580. [Reported in 4 Leonard, 196.1] Note, it was hoklen by Lord Anderson, C. J., that if cestui que use after the Statute 1 Rich. III. leaseth for years, and afterwards the feoffees release to the lessee and his heirs, having notice of the use ; that that release is to the first use. But where the feoffees are dis- seised and they release to the disseisor, although that they [he ?] have notice of the use, yet the same is to the use of the disseisor ; and no subpoena lieth against the disseisor. THE EARL OF WORCESTER and Others v. SIR MOYLE FINCH AND ELIZABETH his Wife. In Chancery, Michaelmas Term, 1600. [Reported in Fourth Institute, 85.] The queen, being seised of the manor of Raveston and of certain lands in Stokegoldington (which the plaintiff pretended to be a manor either in the right or reputation), granted by her letters-patent the manors of Raveston and Stokegoldington to the said Sir Moyle, and John Awdelye, and their heirs ; but this was upon confidence, that they should grant the manor of Raveston to Sir Thomas Ileneage and Anne his wife, and to the heirs of Anne ; and the manor of Stokegoldington to Sir Thomas and Anne, and the heirs of Sir Thomas. Sir Moyle and Awdelye, bj' deed indented and inrolled termino Trin. 1588, 30 Eliz. in this court, for £1,000 bargained and sold to Sir Thomas Heneage and his wife the manors of Raveston and Stokegoldington, and the site of the priory of Raveston in the county of Buck., and all other their lands, tenements, and hereditaments in Raveston, Weston, Pidington, and Stokegoldington, in the county of Buck. To have and to hold the manor of Raveston and the site of the said priory, and all the premises 1 2 Leon. 211 s. c. — Ed. SECT. lY.] THE EAEL OF WOECESTER V. FINCH. 371 in Raveston, "Weston, Pidington, and Stokegoldingtou (other than the said manor of Stokegoldingtou), to the said Sir Thomas and dame Anne, and the heirs of the said dame Anne ; and to have and to hold the said manor of Stokeg. to the said Sir Thomas and dame Anne, and to the heu's of Sir Thomas. Sir Thomas had issue by the said dame Anne the said Elizabeth, one of the defendants, his only child, and afterwards the said dame Anne died. The defendant alleged that Sir Thomas was disseised of Stokegoldington, and the plaintiff denied it.' And after Sir Thomas, by deed indented and inroUed, bargained and sold the manor of Stokegoldington to the plaintiff for payment of his debts and died ; and for payment of his debts they exhibited their bill against Sir Moyle, and the said Elizabeth his wife, for the said manor of Stokegoldington, and the Lord Chancellor decreed it for the plain- tiff. And upon a petition preferred by the defendants to Queen PLliza- beth, she referred the consideration of the whole case to all the judges of England ; and after hearing of the counsel of both parts on several days, and conference between themselves, these points for rules in equity were resolved : First, that if there were any disseisin that noth- ing passed to the plaintiff either in right or equity, for the disseisor was subject to no trust, nor any subpoena was maintainable against him, not only because he was in the j)ost^ but because the right of in- heritance or freehold was determinable at the common law and not in the chancery, neither had cestui que use (while he had his being) any remedy in that case. Secondly, it was resolved by all the justices, that admitting that Sir Thomas Heneage had a trust, yet could not he assign the same over to the plaintiff, because it was a matter in privity between them, and was in nature of a chose in action,'' for he had no power of the land, but only to seek remedy by subpama, and not like to cestui que use, for thereof there should be jwssessio fratris, and he should be sworn on juries in respect of the use, and he had power over the laud by the statute of 1 R. III. cap. 1, and if a bare trust and confidence might be assigned over, great inconvenience might thereof follow by granting of the same to great men, &c. Thirdly, when the lanil de- scended to Elizal)eth, one of tlie defendants, as lioir to her mother, and the trust descended to her from iier fatlier, the trust was drownetl and extinguished. Fourthly, when any title of freehold or otlior matter determinable by the common law come incidently in question in this court, the same cannot be decided in chancery, but ought to be referred to the trial of the common law, where tiie l)arty grieved may be relieved ' U_v tlic rf'jKirt of tho sanio c.iho in 2 And. Ifi.'J.Sir M<>\ lo was tlio di.ssri.si'o. " After which in the same court it w;w shown that at the tiinfi of #i(? iiH.surancc made (ii.s ahovo i» shown) by the said Sir Moyle, &c., tlioy wore dijweiHod (»f all the lands in Stokepold- ington, »o that notliing couiil ho conveyed of thiw to r)thers hy Huch convey.-ince." — I',d. ^ " An hnshand posHCssed of a lea.Mc for years, axHign.^ it to H. in trust for iiinidclf and his wife; the hushand cannot assign this trust, for a trust is nothing in law. . . . As- signments of trusts l)eget strife and maintenance, and are Void in law." Anon. (l-'iTfi), Jenk. 0, Cent. 244, \>l. .30. 15ut a tru-it was iield to he ussignalde in WarniBtrey v. 'Jau field (1628), 1 Ch. Kep. 29. — Eu. 372 THE EARL OF WORCESTER %\ FINCH. [CHAP. III. by error, attaint, or by action of highor nature. And when the suit is for evidences, the certainty whereof the phiintiff surniiseth lie knoweth not, and without them he supposeth that he cannot sue at the common law. It was resolved that if the defendant make no title to the land, tiien the court hath just jurisdiction to proceed for the evidence ; but if lie make title to the land by his answer, then the plaintit¥ ought not to proceed, for otherwise by such a surmise, inheritances, freeholds, and matters determinable by the common law shall be decided in chancery in this court of equity. And thus were these points resolved by Sir John Popham, Sir Edmond Anderson, Sir William Periam, and Walmes- lye, Gawdye, Fenner, and Kingesmill, justices, and Clark and Savill, barons of the exchequer ; and all this amongst other things they certified under their hands into the chancery, and thereupon the former decree was reversed. And in debating of this case it was resolved by the two chief justices, chief baron, and divers other justices, that if a man make a conveyance, and express an use, tl»e party himself or his heirs shall not be received to aver a secret trust, other than the express limitation of the use, unless such trust or confidence does appear in writing, or otherwise declared by some apparent matter. And Popham said, that covin, accident, and breach of confidence were within the proper juris- diction of this court.' 1 See Turner v. Buck, 22 Vhi. Ab. 21, pi. 5. There is a perfect analogy between the converter of a chattel and the disseisor of land in regard to their relations to the cestui que trust of the misappropriated property. Colburu V. Broaghton, 9 Ala. 35i. The defendant, Broughton, under a judgment against A., levied upon and sold certain chattels belonging to one Coolidge, as trustee for the plaintiff. The plaintiff's bill against Broughton was dismissed. Goldthwaite, J., said, p. 362 : " We readily concede that a purchaser of trust property from, or under the trustee, with notice of the trust, is himself chargeable in equity as a trustee. But here there is nothing to eonnett the defendant with the trustee, and they claim adversely to him ; it is not his title which they held, or one derived through him, but their claim, if good at all, is so entirely independent of the trust deed. To insi.st that equity can take jurisdiction of a title thus disputed, would invest it with cognizance of all disputes concerning property upon which a trust had ever been created. " It is entirely evident, that property held in trust is as much the subject of in- quiry as that which is not, but it is too common a mistake to suppose the creation of a trust carries the property itself into equity. The law usually provides a different and more appropriate forum to determine conflicting and adverse titles to the property. We fully recognize the rule, that a purchaser of trust proj)erty from, or under the trustee, with notice of the trust, is himself chargeable in equity as a trustee. (Bank of Alabama V. Williamson, 7 Ala. Kep. 906.) But according to the allegations of the bill, Broughton never had possession of the jjroperty sold, as the administrator of Coolidge, and was not therefore affected by the obligations which his intestate had assumed with relation to it. He obtains a judgment against Colburn, and directs a levy upon property which that per- son is supposed to own. In (fbing this, we apprehend he stan. Curtesy. — A husband is not entitled to curtesy in lands of which his wife is seised merely as trustee. Bennet v. Davis, 2 P. Wms. 318 ; King v. Bushell, 121 111. 656 ; Chew v. Commissioners, 5 Rawle, 160. See also Welch t;. Chandler, 13 B. Mon- 420. — Ed. U.SE8, — The wife and husband of a feoffee to uses were entitled to dower and curtesy respectively. Y. B. 14 Hen. VIII. f. 4, pi. 5; .'supra, p. 284 ; Bro. Ab. Feff. al Uses, pi. 40; Chuddleigh's Case, 1 Rep. 122a; Lewiu, Trusts, Introd. -3. See aho, infra, 378 n. 1,380 n. 1. — Ed. SECT, v.] BOTTO-MLEY V. FAIRFAX. 375 SECTION V. (continued). (6)' Makkiage of Cestui que Thust. — Dowek. BOTTOMLEY v. LORD FAIRFAX. In Chancery, 1712. [Reported in Precedents in Chancery, 336] In this case it was clearly agreed that if a husband before marriage conveys his estate to trustees and their heirs, in such manner as to put the legal estate out of him, though the trust be limited to him and his heirs, that of this trust estate the wife, after his death, siiall not be endowed, and that this court hath never yet gone so far as to allow her dower in such case.-^ 1 Kent V. Reresby, Tothill, 99 , Colt v. Colt, Ch. Rep. 254 ; Radnor v. Rotheram, Prec. Ch. 65; Att'y-Gen. v. Scott, Cas. t. Talb. 138; Chapliu r. Cliaplin, 3 V. Wins. 229 ; Shepherd v. Shepherd, 3 P. Wms. 234, n. (D) ; Reynolds v. Massing, 1 Atk. 604 (cited) ; Godwin v. Wiusmore, 2 Atk. 525 ; Dixon v. Saville, 1 Bro. C. C. 326 ; Curtis f. Curtis, 2 Bro. C. C. 630 (semble) ; Casborne v. Scarfe, 2 J. & W. 194; Burgess i-. Wheate, 1 Eden, 197 ; Cornog v. Cornog, 3 Del. Ch. 407 ; liamiiu v. Hamlin, 19 Me. 141 ; Reed v. Whitney, 7 Gray, 533; Lobdell v. Hayes, 4 All. 187; Claiborne v. Hen- derson, 3 Hen. & M. 322 Accord. The widow of cestui y the creator of the separate use to exclude the hu.^iband from curtesy is suHicient to bar his claim Moigan v. Morgan, 5 .Mad. 408 (sembli') ; l{aiitenliusch v. Donahlson, (Ky. 1892) 18 S W H. 636 ; Stokes v. McKibbin, 13 Pa. 267 {siniblc) ; Kiglcr ;•. Cloud, 14 Pa. 361. Sec also Dugger v. Dugger, 84 Va. 130. But this view is fully met by tho following obriorvatious of Mr. l.c\vin in liis Treatise on the Law of Trusts (9lb ed), 829 : " It was ob.servcd by Sir Jolm Leacii tliat at law tiie husband could not be ex- clnded from the enjoyment of property given to or settled npon the wife, but in equity he might ; and that not only jiartially, a,s by a dir('ctii>n t<> jiav the rents ;iiid |iri>fits to the sepanile u.se of his wife during coverture, but wlinlly by a direction th.it ujion the death of the wife tho inheritance should descend to tho heir of tho wife, and that tlie husband slmuld not be entitled to bn tenant of tlio curtesy: Morgan v. Morgan, 5 .Mad. 411 ; l>ut tin's . Lavender, Ir. R. 9 Eq. 220 ; I I'rcston, Abst. 343 ; Lowiu, Trusts (9th ed.), 842. — Ed. " 4 Hare, 3, n. (/<), s. c. — Et». ♦ Wikcs'a Case, Lane, 54 , 1 Roll. Abr. 343, h. c ; Bullock v Knight, 1 Ch. Ca. 200 , Pitt V. Hunt, 1 Vern. 18 , Sanders v. Pago, 3 Ch Hop. 223 ; Packer v. Wyndham, Prec. Ch. 418, 419; Roupe v. Atkinson, Bunb. 102; Jewsou v. Moulton, 2 Atk 417,421; 25 386 ELWIN V. WILLIAMS. [CHAP. IIL signed in trust for a feme by the privit}' and consent of her husband, there without doubt the husband cauuot intermeddle or dispose of it. ELWIN V. WILLIAMS. In Chancery, before Sir L. Shadwell, January 23, 24, April, 1843. [Reported in 13 Simon, 309 ] Under the will of F. Potter, who died in 1799, one moiety of his residuary personal estate, consisting of stock in the funds &c., was vested in trustees, in trust for his daughter Sarah, the wife of Robert Ellison, for her separate use, for her life, and, after her death, in trust for Sarah, her daughter, absolutely, but subject to the payment of one half of the income to Robert Ellison for his life, if he survived his wife. In October 1812 an indenture (being articles of agreement in contem- plation of the marriage of Sarah, the daughter, then an infant of the age of nineteen^ with Ralph Nicholson) was made between Nicholson of the first part, Ellison and wife of the second part, Sarah, the daugh- ter, of the third part, and certain trustees of the fourth part, whereby it was agreed between the parties, and Sarah, the daughter, for herself, Incledon v. Northcote, 3 Atk. 430, 435 ; Macaulay v. Phillips, 4 Ves. 15, 19 ; Franco v. Franco, 4 Ves. 515, 528; Mitford v. Mitford, 9 Ves. 87, 98 ; Donne v. Hart, 2 Russ. & M. 360; Hanson v. Keating, 4 Hare, 1 ; Duberley v. Day, 16 Beav. 33, 41. In Duberley v. Day, Sir J. Romilly, M. R., said, p. 41 : " It is quite settled, that at law a husband may dispose of the wife's term which is vested in him, whether the wife's beneficial interest in it is to arise hereafter or immediately. In Donne v. Hart, 2 Russ. & M. 360, the Master of the Rolls [Sir John Leach], decided, that there is no difference in equity between the legal interest in a term and the trusts of a term, and held that the assignment by the husband of the reversion of the wife in a chattel real was a good and effectual disposition of it, and bound the wife, who survived the hus- band." See also Re Bellamy, 25 Ch. D. 620. In the case before him, tlie learned judge decided that the husband had not the power to dispose of the trust term of the wife, inasmuch as by the limitations to her it could not in any event vest in possession during the life of the husband. The husband's rights in the trust property of his wife in lands of freeholder inheri- tance are well stated in the following extract from Lewin's Trusts (7th ed.), 640: " The ca.se of the wife's equitable estate in lands of freehold or inheritance, presents in the main the same general similarity to the case of her legal estate in lii'. Baldwin, 5 DeG. & Sm. 819 , Re Insole, 35 Beav. 92 , Swift v Werman, 10 Eq. 15 ; Box v. Box. 6 Ir. Eq. 174 Accord. In the United States, also, it became the rule that the assignment of a wife's reversionary interest in a legal chose in action does not, of itself, destroy her right of survivorship. Lynn v. Bradley, I Met. (Ky.) 232; Wood c. Simmons, 20 Mo. 363 ; Needles v. Needles, 7 Oh. St. 432 ; Matteney v. Guess, 2 Hill, Ch. 63 ; Browning v. Headlev, 2 Rob. Va. 340. But see contra, Woelper's A pp. 2 Barr, 71. — Ed. * 1 Russ. 19. ^ 3 r. W. 197. SECT, v.] MILLER V. BINGHAM. 389 interest in land in the nature of an equitable extent under Lord Cow- per's decree. And it is also observable, from what is stated on page 199, that Lord King appeared to be of opinion that if the wife's chose in action was not reduced into possession during the husband's life, it survived to her as against his assiguee. It is useless to be always travelling over the same ground. I con- sider the pi'inciple laid down by Sir Thomas Plumer and twice affirmed by the Lord Chancellor, to be decisive of the present question. "Whether the husband dies in the lifetime of the tenant for life, whereby the chose in action cannot, as against the wife, be reduced into possession, or whether he survives and dies before it is reduced into possession,, the same result must, in my opinion, follow : and the consequence is that, in the present case, a declaration must be made that Mr. Nichol- son's covenant, which might operate as an assignment, does not now affect that portion of the choses m action of his wife, which was not reduced into possession in his lifetime.^ .T** ANNE MILLER v. LEMUEL BINGHAM and Others, Executors. In the Supreme Court, North Carolina, June, 1841. [Reported in 1 Iredell Equiti/, 423.] This was a case transmitted by consent from the Court of Equity of Davie County, at Fall Term, 1840, to the Supreme Court for hearing. The pleadings and facts are set forth in the opinion of this court. D. F. Cahhcdl and Iredell for the phiintiff. Waddell and Barrinyer for the defeudanls. Daniel, J. Maxwell Chambers, the father of the phiintilT, be- queathed as follows : " I give and bequeath to my son, Edward Cham- bers, as trustee of my daughter, Anne Chamliers (wife of Ilein-y Cham- bers), the following upgroes : Heck, iit liy tho liu.sli.'unl of his vf'xfe'H jirfisi^iit legal chose in nrlion will drfcat iier right of Hurvivorshi]). 'I'tio wife's right wa.s estahli.shefi, as in the j)rin(ipal cjise, in Cicorge v. (joldsiiy, 2.'J Ala. 22(> ; State V. Robertson, ."i Ilarringt. 201 ; Arrington v. Yarborough, 1 Jones, K(j. 72 ; liugg V. Franklin, 4 Sneed, 129 (xrmhir) ; 1 Hiwhoi), Mar. Worn. §§ N5-ir)r.. Hut see coiilrn, Tuttle »•. Fowler, 22 Conn ."iK ; Wright i'. Arnold 14 IJ. Mon 6.38 ; Lynn v. Bradley, 1 Met. (Ky.) 232 ($enihU) ; Schuyler v. Iloyle, .5 Johns, (-'h. 196 {semble) ; Wfstcrvelt r. C'ircgg. 12 N. Y. 200, 20.') {.ipinhli) ; Siter's Csvo, 4 I{awle. 408 , Tritt i;. Colwell, .Tl I'a. 228; Matlhcncy r. (iuess, 2 Mill, Ch. 03 {sembli ) , Hill u Townsend, 24 Tex. 575 ; Browning v. licadley, 2 Kob. Va. .340. — Ed. 390 MILLER V. BINGHAM. [CHAP. IIL Edward will pay over to my daughter Auue, the profits arising from the said uogroos, semi-auuually, for her support and comfort." lu a codicil to the will, the testator says, " My iuteutiou iu the devise of the five uegroes, to-wit, Beck, &c. to my son, Edward Chambers, as trustee of my daughter, Anne Chambers, is this : I give the five negroes, to-wit, Beck, &e. to Edward Chambers to hold in trust, and for the sole benefit of my daughter Anne, to support her during her life, with the profits arising from the labor and hire of the said five negroes, and tlieir increase. And if my daughter Anne should have lawful issue living, at the time of her death, then I devise and order that the said Edward Chambers, trustee of my said daughter Anne, shall deliver and convey absolutely, at the death of my said daughter, the said five negroes and increase, to the said lawful issue of my said daughter Anne,' living at the time of her death. And if my daughter, Anne Cham- bers, should die without having issue, that then my son Edward shall convey the said five uegroes and increase in equal shares to my heirs, or shall sell the negroes and divide the money in equal proportions among my beirs." Henry Chambers died, and his widow, the said Anne, married George Miller. The trustee died, and George Miller was appointed trustee by the Court of Equity, and took into his possession the said slaves. George Miller then died, and the defendants are his executors. Anne, the widow, claiming as cestui que trust, has filed this bill, for an account of the rents and hires of the said slaves, since the death of Miller, her last husband. The defendants have answered and claim the rents and hires of the negroes, as belonging to the estate of their testator. That the slaves were well settled by the will to the separate use of Anne Chambers, and excluded any right of her then husband Henry Chambers, is very clear. Davis v. Cain ; ^ Kudisill v. Watson.'^ But there is nothing in the will of Maxwell Chambers to show, tliat he an- ticipated a second marriage of his daughter, and he did not attempt to provide against such a contingency. The equitable interest in the slaves was given to the plaintiff for life. In this court the trust in a thing is the estate in that thing. The plaintiff, therefore, had a right to make an assignment of her interest in the slaves ; on her second marriage, therefore, her interest passed to her husband. The second husband took the slaves into his possession. If, however, he had not taken them into his actual possession, and they had been in the posses- sion of any other trustee under the will, still such a possession would not have been adverse to the husband ; for the actual possession of the trustee is but considered as that of the person beneficially entitled ; indeed the estate of the trustee exists entirely for the benefit of the cestui que trust. Where the trust is express, as in this case it is, there can be no adverse possession between the trustee and cestui que trust. It is not, how- ever, of course, to divest the trustee of the management of the trust 1 1 Ired. Eq. Eep. 304. ' 2 2 Dev. Eq. Rep. 430. SECT, v.] MILLER V. BINGHAM. 391 property, and to deliver the possessiou to the cestui que trust for life. It must depend on the intention of the settler, or him, by whom the trust was created. Tidd v. Lister ; ^ Dick v. Pitchford.- A chose in the possession of the trustee of the feme, therefore, is not a chose in actioii, but it is a chose in possession, and will on her marriage (if a chattel) pass to her husband.' Granbery v. Mhoon ;'' Pettijohn v. Beasley.^ A trust is not, as it was formerly held, a cJiose in action^ but a present interest, an estate in possession. Mitford v. Mitford ; ' Burgess v. Wlieate.'' Lewin on Trusts, 523. The circumstance of the trustee being directed to pay the rents and hires semi-annuaUi/ does not alter the case. In Benson v. Benson,* the testator directed the interest of £10,000 to be for the separate use of his daughter Jane Lane, the wife of J. Lane, for her life, free from the debts of her husband, to be paid to her at the end of every six months. The husband died and his widow married again. Held, that the trust for her separate use ceased on the death of her first husband, and that the second husband was en- titled to the interest. The same doctrine was laid down by the court in Knight V. Knight.^ These two cases are decisive against the plaintiff on all the points in the case. The bill must be dismissed with costs. Per Curiam. Bill dismissed with costs. 1 5 Mad. Rep 429. 2 i Dgy. & Bat. 480. 8 Murray v. Elibank, 10 Ves. 84, 90 (semble) ; Molony i- Keunedy, 10 Sim. 254; Osborn v. Morgan, 9 Hare, 432 ; Widgery v. Tepper, 7 Ch. Div. 493 ; Brauch Bauk v. Wilkins, 7 Ala. 589 ; Lenoir v. Raiiiey, 15 Ala. 667; Lindsay v. Harrison, 8 Ark. 302; Pope V. Tucker, 23 Ga. 484 ; Murphy v. Grice, 2 Dev. & B. (Eq.) 199 ; Beall i\ Darden, 4 Ired. Eq. 76 Arrnrd. In Osborn v. Morgan, supra, Sir G. J. Turner, V. C, said, p. 433 : " Marriage is a gift to the husband of all the personal property to which the wife is entitled in posses- sion, and oi all the personal propurty of which she may become entitled, subject only to the condition of reducing it into pcjssession during the coverture; and I am aware of no distinction in this respect between property to which the wife is entitled in equity, and property to which she is entitled at law. Nor upon princij)le can thorp bo any such distinction, the rule resting as 1 conceive upon this, — tiiat the husliand and wife are in law one person, — a rule which prevails in equity as much as at law." See also Lewin, Trusts (9th ed.) 833.— Ed. * 1 Dev. 456. ' 4 Dev. 512. • 9 Ves. 98, 99. ^ 1 Eden, 223, 224. » 6 Sim. 126. » 6 Sim. 121. 392 EX TAliTE CHION. [CHAI'. III. SECTION VI. By Bankruptcy, (a) Bankruptcy of the Trustee. Ex PARTE CHION. In Chancery, before Lord Parker, C, Trinity Term, 1721. [Reported in 3 Peere Williams, 187 note {A).] A TRADER in London having money of J. S. (who resided in Holland) in his hands, bought South Sea stock, as factor for J. S., and took the stock in his own name, but entered it in his account book, as bought for J. vS., after which the trader became bankrupt. Determined, that the trust stock was not liable to the bankruptcy. By the Lord Parker, who said it would lessen the credit of the nation to make such a construction.^ 1 Scott V. Surman, Willes, 400, 402 {semble) ; Carpenter v. Marnell, 3 B. & P. 40 ; Ex parte Dumas, 2 Ves. 582; Wiuch v. Keeley, 1 T. R. 619 ; Gladstone v. Hadwen, 1 M. & S. 517; Ex parte Gennys, Mont. & M, 258; Ex parte Painter, 2 ID. & C. 584; Leslie v. Gutherie, 1 B. N. C. 697 ; Daugerfield v. Thomas, 9 A. & E. 292 ; Parnham r. Hurst, 8 M. & W. 743 ; Boddington v. Castelli, 1 E. & B. 879; Westoby v. Day, 2 E. & B. 605, 624; Houghton ?;. Koenig, 18 C. B. 235 ; Fleeming v. Howden, L. K. 1 Sc. Ap. 372 ; St. 32 & 33 Vict. c. 71, § 15 ; U. S. Rev. St. § 5053 ; Hosmer i'. Jewett, 6 Ben. 208; Butler v. Merchants' Co., 14 Ala. 777, 798; Boon v. Stone, 8 111. 537; Rhoades v. Blackiston, 106 Mass. 334; Faxon v. Folvey, 110 Mass. 392; Chace v. Chapin, 130 Mass 128; Kip f. Bank of N. Y., 10 Johns. 63; Dexter v. Stewart, 7 Johns. Ch. 52; Hopkins v. Banks, 7 Cow. 650; Ontario Bank v. Mumford, 2 Barb. Ch. 596 ; Blin v. Pierce, 20 Vt. 25 Accord. Similarly the assignees of a bankrupt executor do not take the legal title to the assets of the testator. Ex parte Ellis, 1 Atk. 101 ; Ex parte Butler, 1 Atk. 210, 213; Note per Lord Mansfield, 3 Burr. 1369 ; Farr v. Newman, 4 T. R. 629, per Grose, J. ; Viner v. Cadell, 3 Esp. 88. If a bankrupt who holds the legal title to property has also a share in the beneficial interest therein, the legal title, it is said, passes to his assignee in bankruptcy. Burn V. Carvalho, 4 B. & Ad. 382 ; 1 A. & E. 883 ; 4 M. & Cr. 695, s. c. ; Leslie v. Guthrie, 1 B. N. C. 697 (semble) ; Dangerfield v. Thomas, 9 A. & E. 292 (semble) ; Parn- ham V. Hurst, 8 M. & W. 743 (semble) ; Boddington v. Castelli, 1 E. & B. 879 (semble) ; Rhoades v. Blackiston, 106 Mass. 334 (semble) ; Swepson v. Rouse, 65 N. Ca. 34. But this rule should not apply where the bankrupt is expressly a trustee. Lewin, Trusts (7th ed.), 220, 221 ; Webster v. Scales, 4 Doug. 7. Wherever the assignee of a bankrupt trustee does acquire the legal title, he takes it of course subject to the same equities to which it was subject in the hands of the trustee. Taylor v. Wheeler, 2 Vern. 564; Tyrrell v. Hope, 2 Atk. 558; Ex parte Coysegame, 1 Atk. 192; Ex parte Dumas, 2 Ves. 582, 585; Hinton v. Hinton, 2 Ves. 631, 6.33 ; Bowles v. Rogers, 6 Ves. 95, n. (55) ; Mitford v. Mitford, 9 Ves. 87, 100; Mestaer v. Gillespie, 11 Ves. 621, 624; Ex parte Hanson, 12 Ves. 346, 349 ; Ex parte Herbert, 13 Ves. 183, 188; Grant i;. Mills, 2 V. & B. 306, 309; Waring v. Coventrj, SECT. VI.] EX PAETE CIIION. 393 2 M. & K. 406 ; Jones v. Mossop, 3 Hare, 568, 572 ; Frith v. Cartland, 2 H. & M. 417; Fleeming v. Howden, L. R. 1 Sc. Ap. 372; Ex parte Rabbidge, 8 Ch. D. 367; Harris v. Truman, 7 Q. B. D. 340,356; Cook v. Tullis, 18 Wall. 332; Yeatman v. Savings Inst., 95 U. S. 767 ; Stewart v. Piatt, 101 U. S. 731 ; Hauselt v. Harrison, 105 U. S. 401 ; Scammon v. Bowers, 1 Hask 496; Williamson v. Colcord, 1 Hiisk. 620; Exchange Bank v. Stone, 80 Ky. 109; Chace v. Chapiu, 130 ^lass. 12S; Holmes v Winchester, 133 Mass. 140; Sibley v. Quinsigamond Bank, 133 Mass. 515; Low i- Welch, 139 Mass. 33 ; Smythe v. Sprague, 149 Mass. 312; Re Howe, 1 I'aige, 125, 128 Ludwig V. Highley, 5 Barr, 132, 138 (semble). The rule is the same where a trustee makes an assignment of trust property for the benefit of his creditors. Frow v. Downman, 11 Ala. 880: Walker i-. Miller, 11 Ala. 1067 ; Willis r. Henderson, 5 111. 13 ; O'Mara v. Jones, 46 111. 288 ; Roberts v. Corbin, 26 Iowa, 315; Kayser v. Heaveurich, 5 Kan. 324, 340; Corn v. Sims, 3 Met. (Ky.) 391; Bridgeford v. Barbour, 80 Ky. 529; Tyler v. Abington, 65 Md. 18; Clarke" v. Flint, 22 Pick. 231 ; Chace u. Chapiu, 130 Mass. 128; Piersou r. Manning, 2 Mich. 445 (overruling Hollister v. Loud, 2 Mich. 309) ; Flanigau r. Lampmau, 12 Mich. 61 ; Brown v. Brabb, 67 Mich. 17 ; Paine v. Aberdeen Co., 60 Jliss. 360; Peet f. Spencer, 90 Mo. 384 ; Haggerty v. Palmer, 6 Johns. Ch. 437 ; Re Howe, 1 Paige, 125 ; Slade v. Van Vechten, 11 Paige, 21 ; Griffin v. Marquardt, 17 N. Y. 28; Van Heusen i'. Radcliff, 17 N. Y. 580 (overruling opinion of Kent, C, in Dey v. Dunham, 2 Johns. Ch. 182, 188) ; Bliss i;. Cottle, 32 Barb. 322; Reed v. Sands, 37 Barb. 185; Coatesn. First Bank, 91 N. Y. 20; Arnold v. Morris, 7 Daly, 498; Kraft v. Dulles, 2 Ciucin. S. C. R. 116 ; Mor- gan V. Kinney, 38 Oh. St. 610; Manning v. Purcell, 46 Oh. St. 102; Mellon 's App., 32 Pa. 121; Lancaster Bank v. Huver, 114 Pa. 216; Williams v. Winsor, 12 R. L 9; Plumkett V. Carew, 1 Hill, Ch. 169; Rohrbough r. Leopold, 68 Tex. 254. But see contra, Wickham v. Martin, 13 Grat. 427 ; Evans v. Greenhow, 15 Grat. 153. The possession of trust property by the trustee does not bring it within the " order and disposition " clause of the English Bankruptcy Act's. See authorities cited supra p. 277, n. 4. — Ed. 394 • BRANDON V. ROBINSON. [CIIAP. IIL SECTION VI. (co7itinued.) (b) Bankruptcy of the Cestui que Trust. BRANDON V. ROBINSON. In Chancery, before Lord Eldon, C, December 18, 1811. [Reported in 18 Vesei/, 429.'] The bill stated that Stephen Goom, by his will, dated the 1st of August, 1808, devised and bequeathed to the defendants Robinson and Davies all his real and personal estates upon trust to sell, and to divide or otherwise apply the produce to the use of all and every his child or children, living at his decease, in equal proportions ; deduct- ing from the share of Thomas Goom the sum of .£500 which had been advanced to him, and from the share of William Goom what should be due from him to the testator at his decease, — the said sums so to be deducted to be divided equally among the other children ; and he declared his will, that the said several legacies, sliares, and eventual interests of such of the legatees as at the time of his decease should have attained the age of twenty-one should be considered as vested interests ; and, if there should be but one survivor, upon trust to pay and transfer the same unto such only survivor, his or her executors, &c., for his or her own use, subject nevertheless to such directions as after mentioned in respect to the shares or interests of such of the said legatees as were females, and also in respect to the share and interest of the said Thomas Goom ; and he directed that the eventual share and interest of his said son Thomas Goom, of and in his estate and effects, or the produce thereof, should be laid out in the public funds or in government securities at interest by and in the names of his said trustees, &c., during his life ; and that the dividends, interest, and produce thereof, as the same became due and i)ayable, should be paid by them from time to time into his own proper hands, or on his proper order and receipt, subscribed with his own proper hand, to the intent the same should not be grantable, transferable, or otherwise assignable, by way of anticipation of any unreceived payment or payments thereof, or of any part thereof; and that upon his decease the principal of such share, together with the dividends and interest and produce thereof, should be paid and applied l)y his trustees or executors, their heirs, executors, &c., unto and amongst such person or persons as in a course of administration would become entitled to any personal estate of his said son Thomas Goom, and as if the same had been personal estate belonging to him, and he had died intestate. 1 1 Rose, 197, 8. c — Ed. SECT. VI.] BRANDON V. ROBINSON. 395 The bill further stated, that after the death of the testator his son Thomas Goom, having attained the age of twenty-one, became a bankrupt. The plaintiff was the surviving assignee under the com- mission ; and the bill prayed an execution of the trusts of the will and an account, that the estates ma}' be sold, and the clear residue ascertained, and that the plaintiff may receive the benefit of such part or share thereof, or of the interest therein, as he shall be entitled to as assignee under the commission. To this bill the defendants, the trustees, put in a general demurrer. Mr. Hart and Mr. Home, in support of the demurrer. Mr. Leach and Mr. Roupellt for the plaintiff', gave up the claim to the principal.' The Lord Chancellor [Eldon] . There is no doubt that property may be given to a man until he shall become bankrupt.^ It is equally J clear, generally speaking, that if property is given to a man for his ■* jy,y life, the donor cannot take away the incidents to a life-estate ; and. as I ^J^ Jf* have observed, a disposition to a man until he shall become bankrupt, (J^*^"^^ \p\^ and after his bankruptcy over, is quite different from an attempt to i^ %}^^ give to him for his life, with a proviso that he shall not sell or alien it. I x)^ If that condition is so expressed as to amount to a limitation, reducing the interest short of a life-estate, neither the man nor his assignees can have it beyond the pferiod limited. In the case of Foley v. Burnell,^ this question afforded much argu- ment. A great variety of clauses and means was adopted by Lord Foley witli the view of depriving the creditors of his sons of any resort to their property ; but it was argued here, and, as 1 thought, admitted, that if the property was given to the sous, it must remain subject to tiie incidents of property, and it could not be preserved from the creditors, unless given to some one else. So the old way of expressing a trust for a married woman was, that the trustees should pay into her proper hands, and upon her own re- ceipt only ; yet this court always said she might dispose of that interest,"' and her assignee would take it ; as, if tiiere was a contract, entitling the assignee, this court would compel her to give her own receipt, if that was necessary to enable him to receive it. It was not 1 Tlio ar^'inifi'tH of coiiii.sfl ,iro omittod. — En. 2 Manning v. C'haiiiber.s, 1 l)e G. & Sni. 282; Sharp v. Cosscrat, 20 Beav. 470; Rochford v. llackman, 9 Ilaro, 475 ; Joel v. Mills, 3 K. & J. 458; Ilatton i'. May, 3 Ch. I), 148; R•. Clialmors, 33 l'>oav. CM (hut see Statu Bank v. Forney, 2 Ircd. Eq. 181). See also Re Jones's Will, 23 L. T. Kep. 211 ; Metcalfe v. Metialfe, 43 Ch. I). f..'33. — Ei). 8 1 Bro. C. C. 274. ♦ I'ybus V. Smith, 1 Ves. Jr. 189 ; 3 Bro. C. C. 340. Sec the notes, 1 Ves. Jr. 194 ; 5 Ves. 17. 96 BPiANDON V. KOBINSON. [CHAP. III. before INIiss Watson's Case that these words, " not to be paid by an- ticipation," etc., were introduced. I believe these were Lord Thur- low's own words, with whom 1 had much conversation upon it. lie did not attempt to take away any power the law gave her, as incident to property, which, being a creature of equity, she could not have at law ; but as under the words of the settlement it would have been hers absolutely, so that she could alien. Lord Thurlow endeavored to prevent that by imposing upon the trustees the necessity of paying to her from time to time, and not by anticipation ; reasoning thus, that equit}', making her the owner of it, and enabling her, as a married woman, to alien, might limit her power over it : but the case of a dis- position to a man, who, if he has the property, has the power of aliening, is quite different. This is a singular trust. If upon these words it can be established that he had no interest, until he tenders himself personally to the trustees to give a receipt, then it was not his property until then ; but if personal receipt is m the construction of this court a necessary act, it is very difiicult to maintain that if the bankrupt would not give a receipt during his life, and an arrear of interest accrued during his whole life, it would not be assets for his debts. It clearly would be so. Next, is there in this will enough to show that, as this interest is not assignable by way of anticipation of any unreceived payment, therefore it cannot be assigned and transferred under the commission of bankruptcy? To prevent that it must be given to some one else ; and unless it can be established that this by implication amounts to a limitation, giving this interest to the residuary legatee, it is an equi- table interest, capable of being parted with. The principal, at the death of the bankrupt, will be under quite different circumstances. The testator had a right to limit his interest to his life ; giving the principal to such person as may be his next of kin at his death, to take it as the personal estate, not of the son, but of him the testator, — as if it was the son's personal estate, but as the gift of the testator. The demurrer must, upon the whole, be overruled.^ 1 Graves v. Dolphin, 1 Sim. 66 ; Green v. Spicer, 1 Russ. & M. 395 ; Piercy v. Roberts, 1 M. & K. 4; Snowdon i;. Dales, 6 Sim. 524; Youiighusband v. Gi-sborne (questioning Twopenny v. Peyton, 10 Sim. 487) ; Rippon v. Norton, 2 Beav. 63 ; Page V. Way, 3 Beav. 20 ; Lord v. Bunn, 2 Y. & C C. C. 98 ; Kearsley v. Woodcock, 3 Hare, 185; Rochford v. Hackman, 9 Hare, 475, 480 (se.mhle) ; Wallace v. Anderson, 16 Beav. 533 ; Sanford v. Lackland, 2 Dill. 6 (spmhle) ; Rugely v. Robinson, 10 Ala. 702; Robertson v. Johnston, 36 Ala. 197 ; Smith v. Moore, 37 Ala. 327 ; Jones v. Reese, fi5 Ala. 134; Taylor v. Harwell, 65 Ala. 1 ; Bell v. Watkius, 82 Ala. 512; Lindsay V. Plarrison, 8 Ark. 302, 311 {spmhle) ; Ea.sterly v. Kenny, 36 Conn. 18 (semhie) ; Gray v. Corbit, 4 Del. Ch. 135, 167; Kcmpton v. Hallowell, 24 Ga. 52; Gray v. Obcar, 54 Ga. 231 ; Bailie v. McWhorter, 56 Ga. 183 ; Samuel v. Salter, 3 Met. (Ky.) 259 ; Knefler v. Shreve, 78 Ky. 297 {semhie); Parsons v. Spencer, 83 Ky. 305; Marshall v. Rash, 87 Ky. 116; Woolley v. Preston, 82 Ky. 415; Bland v. Bland (Ky., 1890), 14 S. W. R. 423 ; Bull v. Ky. Bank (Ky., 1890), 14 S. W. R. 425 ; Hallett v. Thomp- son, 5 Paige, 583 ; Bryan v. Knickerbacker, 1 Barb. Ch. 409 ; Havens v. Healy, 15 Barb. 296 ; Rome Bank v. Lames, 4 Abb. Ap. 83, 99 ; Bramhall v. Ferris, 14 N. Y. SECT. Yl.'] BROADWAY NATIONAL BANK V. ADAMS. 397 BROADWAY NATIONAL BANK v. C. W. ADAMS, and Another. In the Supresie Judicial Court, Massachusetts, November 17, 18, 1881, March 27, Juxe 29, 1882. [Reported in 133 Massachusetts Reports, 170.] Morton, C. J. The object of this bill in equity is to reach and apply in payment of the plaintiff's debt due from the defendant Adams the income of a trust fund created for his benefit by the will of his brother. The eleventh article of the will is as follows: " I give the sum of seventj'-five thousand dollars to my said executors and the survivors or survivor of them, in trust to invest the same ui such man- ner as to them may seem prudent, and to pay the net income thereof, semi-annually, to my said brother Charles W. Adams, during his natu- ral life, such payments to be made to him personally when convenient, otherwise, upon his order or receipt in writing ; in either case free from the interference or control of his creditors, my intention being that the use of said income shall not be anticipated by assignment. At the decease of my said brother Charles, my will is that the net income of said seventy-five thousand dollars shall be paid to his present wife, in case she survives him, for the benefit of herself and all the children of said Charles, in equal proportions, in the manner and upon the condi- tions the same as herein directed to be paid him during his life, so long as she shall remain single. And my will is, that, after the de- cease of said Charles and the decease or second marriage of his said wife, the said seventy-five thousand dollars, togelher with any accrued interest or income thereon which may remain unpaid, as herein above directed, shall be divided equally among all the children of my said brother Charles, by any and all his wives, and the representatives of any deceased child or cliildrcn l)y right of reprosontation." There is no room for doubt as to the intention of (he testator. It is clear that, if the trustee was to pay the income to the plaintitf under an order of the court, it would be m direct violation of the intention of the testator and of the provisions of his will. The court will notcom- 41, 44 ; Dirk v. ritclifonl, 1 I)ev. & B. Eq. 480; B-ink v. Forney. 2 Irod. Eq. 181, 184 : Mebaiie v. Mcl.aiie, 4 Ired. Kq l.'ll ; Vnro v. I'aco, 73 N. Ca 119, Hol.lis r. Sniilli, 15 Oh. St. 4rj; Walliice i: Smith, 2 Handy, 7'J , TillinKlia.'it r. IJradfnrd, 5 U. I. 20.5, Ilonth V. Hishop, 4 Wuh Kq 40, Wylio v Whito. 10 Rich Eq. 294; Nickell f Flamlly, 10 Cr.it :iW {srmbk) , Bridgo v. Ward, ;15 Wis. 687, 690; Ilarri.s r. .Iiidd, 3 Hawaiian, 421 Armrd. See alMo tho achnirable discuHHion of tliiH i|UC8tion in Gray, Restraints on Ali(Mia- tion, §§ l."U-277 a. The caxos ronlra will bo found in/ni, p. 400, n. 2 In tho note juHt roferrcd to, as well nn in this note, the citations include not only bankruptcy cases, but alHo thrwo invcdvinf; the rights of crcditdrs proceeding by bills for oi]uitablo nxorutioii, and cases illustrating the rextui r/ue trust's right of voluntary alicualiun, u common principle running through them all. — Ed. 398 BROADWAY NATIONAL BANK V. ADAMS. [cHAP. III. pel the trustee thus to do what the will forbids him to do, unless the provisions and intention of the testator are unlawful. The question Avhether the founder of a trust can secure the income of it to the object of his bounty, by providing that it shall not be alien- able by him or be subject to be taken by his creditors, has not been directly adjudicated in this Commonwealth. The tendency of our de- cisions, however, has been in favor of such a power in the founder.* It is true that the rule of the common law is, that a man cannot attach to a grant or transfer of property, otherwise absolute, the con- dition that it shall not be alienated ; such condition being repugnant to the nature of the estate granted.^ Lord Coke gives as the reason of the rule, that "it is absurd and repugnant to reason that he, that hath no possibility to have the land revert to him, should restrain his feoffee in fee simple of all his power to alien," and that this is " against the height and puritie of a fee simple." By such a condition, the grantor undertakes to deprive the property in the hands of the grantee of one of its legal incidents and attributes, namely, its alienability, which is deemed to be against public policy. But the reasons of the rule do not apply in the case of a trans- fer of property in trust. By the creation of a trust like the one before us, the trust property passes to the trustee with all its incidents and attributes unimpaired. He takes the whole legal title to the property, wnth the power of alienation ; the cestui que trust takes the whole legal title to the accrued income at the moment it is paid over to him. Neither the principal nor the income is at any time inalienable. The question whether the rule of the common law should be applied to equitable life estates created by will or deed, has been the subject of conflicting adjudications by different courts, as is fully shown in the able and exhaustive arguments of the counsel in this case. As Is stated in Sparhawk v. Cloon,^ from the time of Lord Eldon the rule has prevailed in the English Court of Chancery, to the extent of holding that when the income of a trust estate is given to any person (other than a married woman) for life, the equitable estate for life is alienable by, and liable in equity to the debts of, the cestui que trust, and that this quality is so inseparable from the estate that no provision, however express, which does not operate as a cessor or limitation of the estate itself, can protect it from his debts.* Brandon v. Robinson. The English rule has been adopted in several of the courts of this country.^ Other courts have rejected it, and have held that the founder of a i Braman v. Stiles, 2 Pick. 460 ; Perkins v. Hays, 3 Gray, 405 ; Russell v. Grinnell, 105 Mass. 425; Hall v Williams, 120 Mass. 344; Sparhawk v. Cloon, 125 Mass. 263. 2 Co. Lit. 223 a ; Blackstone Bank v. Davis, 21 Pick. 42. 8 125 Mass. 263. ♦ Green v. Spicer, 1 R. & My. 395 ; Rochford v. Hackman, 9 Hare, 475 ; Trappes v, Meredith, 9 Eq. 229 ; Snowdon v. Dales, 6 Sim. 524 ; Rippon v. Norton, 2 Beav. 63. 5 Tillinghast v. Bradford, 5 R. L 205 ; Heath v. Bishop, 4 Rich. Eq. 46 ; Dick v. PitcMord, 1 Dev. & Bat. Eq. 480; Mebane v. Mebane, 4 Ired. Eq. 131, SECT. YI.] BROADWAY NATIONAL BANK V. ADAMS. 399 trust may secure the benefit of it to the object of his bounty, by pro- viding that the income shall not be alienable by anticipation, nor sub- ject to be taken for his debts.^ The precise point involved in the case at bar has not been adju- dicated in this Commonwealth ; but the decisions of this court which we have before cited recognize the principle, that, if the intention of the founder of a trust, like the one before us, is to give to the equitable life tenant a qualified and limited, and not an absolute, estate in the income, such life tenant cannot alienate it by anticipation, and his creditors cannot reach it at law or in equity. It seems to us that this principle extends to and covers the case at bar. The founder of this trust was the absolute owner of his property. He had the entire right to dispose of it, either by an absolute gift to his. brother, or by a gift with such restrictions or limitations, not repugnant to law, as he saw fit to impose. His clear intention, as shown in his will, was not to give his brother an absolute right to the income which might hereafter ac- crue upon the trust fund, with the power of alienating it in advance, but only the right to receive semiannually the income of the fund, which upon its payment to him, and not before, was to become his absolute property. His intentions ought to be carried out, unless they are against public policy. There is nothing in the nature or tenure of the estate given to the cestui que trust which should prevent this. The power of alienating in advance is not a necessary attribute or incident of such an estate or interest, so that the restraint of such alienation would introduce repugnant or inconsistent elements. We are not able to see that it would violate any principles of sound public policy to permit a testator to give to the object of his bounty such a qualified interest in the income of a trust fund, and tluis provide against the improvidence or misfortune of tlie Ijoneficiar}'. The only ground upon which it can be held to be against public policy is, that it defrauds the creditors of the Ijeneficiary. It is argued that investing a man with ai)parent wealth tends to mis- lead creditors, and to induce them to give him credit. The answer is, that crcclitors have no right to rely upon property thus held, and to give him credit upon the i)asis of an estate whicli, liy the instriiuipnt creating it, is declared to be inalienable by him, and not lial)le for his debts. By the exercise of proper diligence they can ascertain the na- ture and extent of his estate, es|)ecially in this C'onimotiwcalth, wliere all wills and most deeds are s])n'ad upon tlie pul)lic records. There is the same danger of tlieir being misled by false appearances, mikI in- duced to give credit to the equitable life tenant when the will or deed of trust provides for a cesser or limitation over, in case of an attempted alienation, or of bankruptey or attachment, and the argumenl would lead to the conclusion that the Kuglish rule is e(pially in violation of 1 IIoMxliip r. I'atUrr.son, 7 W.'itts. .'>47 ; Shniikliind'H yNjijicnl, 17 IVnn. St. 113; l{ifo V. Oevcr, 5'J I'piin. St. 393; White v. Wliit.,-, 30 Vt. 338 ; I'opof. KllioM, 8 H. MnuSG; Nichols V. Eaton, 91 U. S. 716 ; Hydo v. Woods, 94 U. S. 523. 400 BROADWAY NATIONAL BANK V, ADAMS. [CIIAP. III. public policy. We do not soc why the founder of a trust may not directly provide that his property shall go to his beneficiary with tiic ret^triction that it shall not be alienable by anticipation, and that his creditors shall not have the right to attach it in advance, instead of indirectly reaching the same result by a i)rovision for a cesser or a limitation over, or by giving his trustees a discretion as to paying it. He has the entire jus disj^onendi, which imports that he may give it absolutely, or may impose any restrictions or fetters not repugnant to the nature of the estate which he gives. Under our system, creditors may reach all the property of the debtor not exempted by law, but they cannot enlarge the gift of the founder of a trust, and take more than he has given. The rule of public policy which subjects a debtor's property to the payment of his debts, does not subject the property of a donor to the debts of his beneficiary, and does not give the creditor a right to com- plain that, in the exercise of his absolute right of disposition, the donor has not seen fit to give the property to the creditor, but has left it out of his reach. Whether a man can settle his owu property in trust for his own benefit, so as to exempt the income from alienation by him or attach- ment in advance by his creditors, is a different question, whicli we are not called upon to consider in this case.^ But vve are of opinion that any other person, having the entire right to dispose of his property, may settle it in trust in favor of a beneficiary, and may provide that it shall not be alienated by him by anticipation, and shall not be subject to be seized by his creditors in advance of its payment to him. It follows, that, under the provisions of the will which we are con- sidering, the income of the trust fund created for the benefit of the defendant Adams cannot be reached by attachment, either at law or in equity, before it is paid to him. Bill dismissed.^ 1 This question has been answered in the negative. Warner v. Rice, 66 Md. 436 ; Pacific Bank i-. Windham, 133 Mass. 175; Jackson r. Van Zedlitz, 136 Mass. 342 ; McIJvaine v. Smith, 42 Mo. 45 ; Lackland v. Smith, 5 Mo. Ap. 153 ; Lampert ik Hay- del, 96 Mo. 439 (semhle) ; Mackason's App., 42 Pa. 330; Andress v. Lewis, 17 W. N. (Pa.) 270 ; Lewis v. Miller, 22 W. N. (Pa.) 94 ; Ghormley v. Smith, 139 Pa. 584. —Ed. 2 Nichols 1-. Eaton, 91 U. S. 711 (semhle); Hyde v. Woods, 94 U. S. 523 (semhle, bnt see Nichols v. Levy, 5 Wall. 433, 441) ; Steib v. Whitehead, 111 111. 247 ; Spindle V. Shreve, 111 U. S. 542, 4 Fed. Rep. 136 (ba.sed on an Illinois statute) ; Roberts?;. Stevens, 84 Me. 325; Smith v. Towers, 69 Md. 77 (Alvey, C. J., and Bryan, J., dis- senting) ; Braman v. Stiles, 2 Pick. 460 (semhle) ; Billings v. Marsh, 153 Mass. 311 ; Leigh V. Harrison (Miss. 1892), 11 S. R. 604 ; Lampert v. Haydel, 96 Mo. 439 ; Par- tridge V. Cavender, 96 Mo. 452 ; (compare Bank of Commerce v. Chambers, 96 Mo. 459 ;) Fisher v. Taylor, 2 Rawle, 33 ; Vaux v. Parke, 7 Watts & S. 19 ; Norris v. John- ston, 5 Barr, 287 ; Eyrick i-. Iletrick, 13 Pa. 488; Shankland's App., 47 Pa. 113 ; Rife V. Geyer, 59 Pa. 393 ; Keyser v. Mitchell, 67 Pa. 473 ; Overman's App., 88 I'a. 276 ; Thacicarat'. Mintzer, 100 Pa. 151 ; Guardians v. Mintzer, 16 Phila. 449 ; Eborly's App., HO Pa. 95; Ghormley v. Smith, 139 Pa. 584; Jourolonion i'. Mas.scngill, 86 Tenn. 81 (overruling Turley v. Massengill, 7 Lea, 353; Hooberry v. Harding, 10 Lea, 392); SECT. VI.] IN EE BULLOCK. 401 In re bullock. GOOD V. LICKORISH. In Chancery, before Kekewich, J., March 17, 21, 1891. [Reported in 60 Law Journal Reports, Chancery, 341.] By the -will and codicil of Edwiu Bullock (who died on the 14th of February, 1870), all the real and personal estate of the testator were vested in the plaintiffs Charles Patten Good and Henry "Williams, and the testator's widow Mary Bullock, his executors and trustees, in trust for the testator's children, and the issue born in his lifetime of Mary Bullock, as she should by deed or will appoint, and, failing such ap- pointment, and so far as the same should not extend, in trust for those of his six children who should be living at her death, and the issue of such as should be then dead leaving issue. Mary Bullock, by her will dated the 29th of May, 1883, directed and appointed as follows : — " I\Iy late husband's trustees or trustee shall stand possessed of 15,000Z., further part of the said net proceeds, upon trust to invest the same in some or one of the modes of investment by law authorized for the investment of trust funds, and to pay the income of such invest- ments to the said Theodore Walter "William Bullock, during his life or until he shall become a bankrupt or a liquidating debtor, or cease to be entitled to receive such income, or any part thereof, for his own per- sonal use or benefit, by any means or for any purpose. And in the event of, and upon the said T. W. W. Bullock becoming a bankrupt or a liquidating debtor, or ceasing to be entitled to receive tiie said income, or any part tliereof, for Iiis own personal use or benefit by any means or for any purpose, to pay to him or apply for his benefit, during the remainder of his life, either the whole, or so much, and so much only of the said income, as my late husband's trustees or trustee nhall in their or his uncontiollt'd discretion think fit, and, subject to the afore- said interest Iieri'inlicfore appointed in favor of the said T. W. W. Bul- lock, my late husband's trustees or trustee sliall hold the said 15,000/., and tiie investments and income (including any accumulations of in- come) tliereof, in trust for the child, if only one, or all the ciiildren White I'. Wliito, ."iO Vt. 338 (nemblr) ; RninoH v. Dow, .59 Vt. 530; Garlniul r. darlaud, 87 Va. 758 Accon/. See mipra, p. 307, ii. 1, last parafjrapli. — Et>. In a few jiiriHilictioiiH, e. p., f '."ilifuriiia, Kan.saH, Micliipan, MinnoHota, New .TcrHCy, New York, an. Cleaves, 149 Ma«s. 307 ; Slattery r. Waaon, 151 Ma88. 266, 268. — Ed. 406 STITII v. L00KA13ILL. [CIIAP. III. SECTION VII. By Act of Creditors, {a) Creditors of Trustee. N. L. STITH V. JACOB LOOKABILL. In the Supreme Court, North Carolina, June Term, 1874. [Reported in 71 North Carolina Reports, 25.] Civil action, to recover possession of certain real estate tried at the Spring Term, 1874, of the Superior Court of Davidson County, before his Honor, Judge Cloud. The plaintiff showed title from the State to one J. M. Lisle ; then a deed from Lisle to one F. M. Camman ; then an original attachment against Camman, which was duly levied on the premises, and after proper proceedings had thereon, a final judgment in said attachment, and a ven. ex. issued to sell the land. Plaintiff further showed a sale and that A. B. Stith became the purchaser, who dying j^ndente lite, willed the same to the plaintiff ; also, that the defendant was in pos- session. Here, the plaintiff resting his case, the defendant moved the Court to non-suit the plaintiff, on the ground that Camman did not acquire such an interest as was the subject of attachment, levy, and sale under ex- ecution, — the defendant stating that if his Honor should overrule the motion, he had evidence to offer showing title in himself. His Honor sustained the motion and non-suited the plaintiff. From this judgment the plaintiff appealed. The provisions of the deed to Camman are sufficiently set forth in the opinion of the Chief Justice. Bailey., for the plaintiff. Billard & Gilmer., with whom was e/l 31. McCorkle, for defendant.^ Pearson, C. J. Upon the motion to non-suit, the only question was, " had Camman such an estate as was subject to sale under execution by his creditors? " On this depended the right of the plaintiff, who was the purchaser, to maintain an action against the defendant, who for the pur- poses of the motion stands as a wrong-doer, without connection, either as assignee or agent, with the cestui que trusts for whom Camman is assumed to have held the legal estate. Mr. Gilmer in a well-considered argument admitted the general posi- tions taken by Mr. Bailey, in respect to " uses and trusts," to-wit: i The arguments of counsel are omitted. — Ed. SECT. VII.] STITH V. LOOKABILL. 407 1. This case did not come within the operation of Stat. 27th Henry VIII. So the legal title was in Camman, subject to the trust, set out in the deed " for the sole and exclusive benefit of the members of a com- pany called and known as the ' Conrad Hill Gold and Copper Corn- pan}*,'" their successors and assigns forever. 2. Camman, in the Courts of law, was considered to be the owner of the land, and no notice was taken of the trust, to which he was subject. 3. Camman had power to assign the legal estate ; and it could be sold under an execution against him, the purchaser taking subject to the trust, and notice being presumed. 4. Under the old system the plaintiff would have been entitled to judgment on a demurrer to the evidence. Mr. Gilmer then " proved by the books " that although the plaintiff was in a Court of law (under the old system) treated as the absolute owner of the estate, still being a trustee, on the face of the deed b}' which he derives title, he and his assignee, whether by his own sake, or that of the sheriff, is subject to the control of the Courts of Equity, by which these trusts estates were upheld and treated, as the real ownership. See the reasoning in Blackmer v, Phillips, 67 N. C. 340. The trustee or his assignee will be enjoined from enforcing his mere legal right in order to take possession of the land. From these premises he drew the conclusion that under our new system, the Court acting both as a Court of Equity and a Court of law, the assignee of the trustee by sale on execution will not be allowed to take judgment tor the recovery of the possession of the land. The argument is well constructed, but it fails in this : under the old svstem the Court of Equity only interfered b}' injunction to prevent the trustee or his assignee from taking possession as against the cestui (jue trusts, or their assignee or agent, but did not interfere in favor of a wrong-doer, who fails to connect himself in any way with the cestui que trusts. Such is the law under the new system. In our case, for the purposes of the motion to non-suit, the cestui que trusts are not before the Court, and the defeii(huit stands as a wrong-doer, withlioKliiig the possession from the plaintilf, who is the owner of the legal estate. If Camman had l;rouglit the action, the defendant, so far as, for the purposes of the motion, as the matter now stands, would not have, under the old system, entitled hirns(!lf to an injunction ; noilher can he do so under the; new system, b}- which the e(|iiiiy of the case; as well as the law is administered in tiie samc,/*''^?'/^///, for the plain reason tli.it ho stands as a wrong-doer, withholding the |)ossession from one having the legal estate, and does not in any way connect himself with the supposed cestui que trusts. There is error. .Judgment reversed and venire de norjo.^ Per Curiam. Venire de novo. * The assets of a testator cannot he taken even at law in satisfaction of a judgment against the executor. Fnrr v. Newman, 4 T. li. 621 ; McLeod v. Drummond, 17 Ves. 408 ^VIIIT^voRTII v. gaugain. [ciiAr. iil WHITWORTH V. GAUGAIN. ! In Cuancery, before Sir James Wigram, V. C, March, 25, 26, i 27, 28, April 3, 1844. . [Reported in 3 Hare, 416.] ViCE-CiiANCELLOR.^ The plaintiffs, in this case, are equital)le mort- gagees of one George Cooke, by a deposit of title-deeds of freehold estates, aeeompauied with a memorandum in writing, explaining that the purpose of the deposit was to secure a then existing debt and future advances. To explain the legal effect of this transaction as between the plain- tiffs the mortgagees, and Cooke the mortgagor, I shall content myself with quoting tiie words of the Lord Chancellor of Ireland, in the case of RoUeston v. Morton : ^ " If a man has power to charge certain lands, and agrees to charge them, in equity he has actually charged them ; and a court of equity will execute the charge." No one, I apprehend, could seriously contend that the memorandum in writing above set forth had not the effect of charging the property as between the mortgagees and the mortgagor. It created as perfect an equitable charge as in- tention and act can possibly create. The defendants, between whom and the plaintiffs the contest in the cause exists, are judgment creditors of George Cooke, w'hose judgments were entered upon after the mortgage to the plaintiffs, and who have since, by means of elegits, obtained actual possession of the lands com- prised in the mortgage ; and the" question between them is, which of the two is in equity to be preferred to the other ?^ In considering that 152, 168, per Lord Eldon ; Kiuderley v. Jarvis, 22 Beav. 1, 23 ; Gaskell v. Marshall, 1 M. & Rob. 132 ; Williams t). Fullerton, 20 Vt. 346. See "Whale v. Booth, 4 Dong. 36. There are decisions also that a creditor of a trustee canuot even at law reach the prop- erty of the cestui que trust. Smith v. McCauu, 24 How. 398 ; Baker v. Copenbarger, 15 111. 103 ; Elliott V. Armstrong, 2 Blackf. 198 (semble) ; Houston v. Nowland, 7 Gill & J. 480 ; Bancroft v. Consen, 13 Ala. 50 {semble) ; Ashunst r. Given, 5 Watts & S. 323 ; Wilhelm v. Fulmer, 6 Barr, 29G ; Shryock v. Waggoner, 28 Pa. 430 ; Townslow v. Barber, 27 Vt. 417 ; Barber r. Chopin, 28 Vt. 413; Hackett v. Callender, 32 Vt. 97; Hart r. Farmers' Bank, 33 Vt. 252 ; Abell v. Howe, 43 Vt. 403. See also Warren v. Ireland, 29 Me. 62; Chickering v. Lovejoy, 13 Mass. 51 ; Haynes v. Jones, 5 Met. 292. A trustee cannot claim a homestead right in trust property. Shepherd v. White, 11 Tex. 346. See also Re Whitehead, 2 N. B. R. 599. The creditor of a feoffee to uses miglit satisfy his judgment out of the property held in use. Y. B. 14 Hen. VIH. f. 4, pi. 5 ; supra, p. 284. — Ed. 1 See supra, 70 u. 1. — Ed. 2 1 Dr & War. 195. 8 The bill, which was filod on the 17th of March, 1841, charged that the heredita- ments and premises comprised in the said title-deeds (together with a policy of insur- ance which the plaintiffs also held as a further security) were wholly inadequate to satisfy the sums due to them by virtue of such equitable lien. The bill prayed that an account might be taken of what was due to the plaintiffs in respect of their equit- able lien upon the said deeds and writings, and that they might be declared to have an SECT. VII.] WHITWORTH V. GAUGAIN. 409 question I shall here repeat what I have on more than one occasion already said respecting Lord Cottenhani's judgment when this cause was before him upon motion, namely, that I am satisfied he did not intend, by what he said, finally to decide the point now before me. However strong the leaning of his mind may have been in favor of the judgment creditor, he not only did not intend to decide it, but intended that it should be reserved. And I, therefore, consider my- self not only at liberty, but bound, to decide the cause according to my own understanding of the law. Now, if the question be not decided by that judgment, I have cer- tainly a very strong opinion upon it. The more I consider the case, the more satisfied I feel that I stated the general principle correctly in Langton v. Horton when I said that a creditor might, under his judg- ment, take in execution all that belonged to his debtor, and nothing more. He stands in the place of his debtor. He only takes the prop- erty of his debtor, subject to every liability under which the debtor himself held it. First, take the case of an ordinary trust. It could not for a moment be contended that this court would not protect the interest of the cestui que trust against the judgment creditor of the trustee.^ The judgment of Lord Cotteuham in Newlands v. Faynter ^ equitable mortgage upon the hereditaments and premises, and to be entitled to priority over the said elegits and judgments of Mayor and Pelle ; tliat the hereditaments and premises included in the plaintiffs' said equitable mortgage (and the said j)olicy) might be sold ; and out of the proceeds of such sales the said debt and costs of the plaintiffs might be paid ; and, if the same should he insufficient, that the plaintiffs might be admitted to prove for the deficiency against tlie estate of Cooke, in the bankruptcy. The bill also prayed the ajipointinent of a receiver, and for an injunction. — Ei>. 1 Medley v. Martin, Finch, 63 ; Newlands v. Paynter, 4 M. &. C. 408 ; Re Morgan, 18 Ch. D. 93 ; Koberts v. Death, 8 Q. IJ. Div. 319 ; Gill c. Continental Co., L. K. 7 Ex. 332 ; Cooper i-\ Griffin, "32, 1 Q B. 740 (explaining Cragg v. Taylor, L. R. I Ex. 148) ; McAuley v. Clarendon, 8 Ir. Ch. 121 ; Gordon r. Cheyne (Court of Session, 1824), L. S. 566; Wauzer c. Truly, 17 How. 584 ; Freedman's Co. v. Earle, 110 U. S. 710, 713; Hitchcock V. (J.alveston Co., 50 F. K. 203 ; Sncdiker r. IJoyleston, 83 Ala. 408 ; Spicor r. Spicer, 21 Ga. 200; McLaurie y. I'artlow, 53 111. 340 ; Tracy i. Kelly, 52 Ind. 535 ; llol- lingsworth v. Trueblood, 59 Ind. 542 ; lleberd r. Wines, 105 Ind. 237 ; Taylor v. Dues- terburg, 109 Ind. 165; Rennet »-. Strait, 63 Iowa, 620 ; Mrol, 59 N. II. 234 ; Campfield v. Johnson, 1 Hal.'^t. Ch. 245 ; Bunu v. Mitchell, 27 N. J. E(|. .54; Ells v. Tou.sley, 1 Raige, 2S0 ; Lounsbnry v. Purdy, 11 Barb. 490; Smith r. Bank, 4 Jones, Eq. 303; Mc(Jovcrn c. Knox, 21 Oh. St. 547 ; Drysd.ale's Appeal, 15 Pa. 457 (scmUo) ; Sheetz v. Negley, 13 Phila. 506; White v. Kav.-inagh, 8 Ki.h. 377; Thomas ?•. Walker, 6 Hum. 93; Click V. (!lick, 1 Hcisk. 607 ; Gass v. Vi;\nn, 1 Hr-isk. 613; Sandford v. Wep(im ; Smilh r. Longmirc, 24 Hun, 257 ; Groavenor r. Allen, 9 Paige, 74 (sec also \'an IJuskirk c. Hartford Co., 14 Conn. 583) ; Haldcman r. Hillsborough Co., 2 Handy, 101 ; Copelaud i;. Manton, 22 Ohio St 39H ; Oregon Co. v. (i.itfs, 10 Oreg 514; Stevens r. Stevens, I Aahm. 190; U. S. v. Vaughan, 3 IJinn. 394; rdlman v. Hart, 1 Burr, 263; Paltou v. 414 WHITWORTII V. GAUGAIN. [CIIAP. III. Wilson, 34 Ta. 399; Ins. Co. v. riiocnix, 71 Pa. 31 ; Noble v. Thompson Oil Co., 79 Pa. 3.')4 ; WiUlaco's App., 104 Pa. 559; Tide Water Co. v. Kitchonman, 108 Pa. 630; Canal Co. r. Insnrauoo Co., 2 Phila. 354 ; Noble i-. Smith, 6 R. I. 446 ; Northam v. Cartwright, 10 K. I. 19 ; Lee v. Robinson, 15 R. I. 369 ; Alexander v. Adams, 1 Strob. 47 , Tazewell v. Barrett, 4 Hen. & M. 259 ; Anderson v. De Soer, 6 Grat. 363 ; Bank of Valley v. Gettinger, 3 W. Va. 309 ; Gregg v. Sloan, 20 W. Va. 509. Bnt SCO contra, Woodbridge v. Perkins, 3 Day, 364 ; Jndah v. Judd, 5 Day, 534 ; Bishop V. Holcomb, 10 Conn. 444 (senible) ; Van Buskirk v. Hartford Co., 14 Conn. 141 ; Clark c. Connecticut Co., 35 Conn. 303 (sembic) (see also Warren v. Copclin, 4 Met. 594); Clodfelter v. Cox, 1 Sneed, 330; Mutual Co. v. Hamilton, 5 Sliced, 269 (semble) ; Dews v. Olwill, 59 Tenn. 432 ; Flickey v. Loney, 4 Baxter, 169 (semble) ; Penniman i'. Smith, 5 Lea, 130; Daniels v. Pratt, 6 Lea, 443 (semble) ; Dinsmore v. Boyd, 6 Lea, 689 [semble) ; Robertson i'. Baker, 10 Lea, 300 (see, however, Sugg v. Powell, 1 Head, 221 ; Gayoso Inst. v. Fellows, 6 Cold. 471-472 ; Cornick r. Richards, 3 Lea, 1) ; Barney v. Douglas, 19 Vt. 98; Ward t;. Morrison, 25 Vt. 593; Loomis v. Loomis, 26 Vt. 198, 203 {semble) ; Dale v. Kimpton, 46 Vt. 76 ; Weed v. Boutelle, 56 Vt. 570. Conf. Conway v. Cutting, 51 N. H. 407. In strict analogy with the preceding cases, one to whom certificates of stock have been transferred is protected against subsequent attaching creditors of the assignor, although no notice of the transfer has been given to the company. Robinson v. Nesbitt, L. R. 3 C. P. 264 ; Duuster v. Glengall, 3 Ir. Ch. 47 ; Continental Bank v. Eliot Bank, 7 Fed. Rep. 369 ; Scott v. Pequonuock Bank, 15 Fed. Rep. 494 ; Hazard v. Nat. Bank, 26 Fed. Rep. 94 ; People v. Elmore, 35 Cal. 653 ; Smith v. Crescent Co., 30 La. Ann. 1378; Friedlander I'. Slaughter House Co., 31 La. Ann. 523; Boston Music Associa- tiou r. Cory, 129 Mass. 435; Sibley v. Quiusigamond Bank, 133 Mass. 515 (but see Fisher v. Essex Bank, 5 Gray, 373 ; Boyd v. Rockport Mills, 7 Gray, 406 ; Blanchard 'v. Dedham Co., 12 Gray, 213; Rock v. Nichols, 3 All. .342, contra. In Massachusetts by Pub. St. c. 105, § 24, title to shares was made subject to a registry law as in the case of land. But this statute was repealed by St. 1884, c. 229, which protects an assignee who holds the certificate under a written transfer) ; Clark v. German Bank, 61 Miss. 613 ; Merchants' Bank v. Richards, 74 Mo. 77 ; Rogers v. Stevens, 4 Halst. Ch. 167 ; Broadway Bank v. McElrath, 2 Beas. 24 ; Hunterdon Bank v. Nassau Bank, 17 N. J. Eq. 496 ;"Sniith v. American Co., 7 Lans. 317 ; Dunn v. Starr Co., 19 N. Y. W.D.531; Norton v. Norton, 43 Oh. St. 509 ; Comm. v. Watmough, 6 Whart. 117 ; Finney's Ap- peal, 59 Pa. 398 ; Early's Ap. 7 W. N. (Pa.) 184 ; Frazer v. Charleston, 11 S. Ca. 486 ; Cornick v. Richards, 3 Lea, 1 (overruling in effect State Co. v Sax, 2 Tenn. Ch. 507) ; Cherry v. Fro.st, 7 Lea, 1 (semble) ; Strange v. Houston Co., 53 Tex. 162 (seinble) ; Seeligson v Brown, 61 Tex 114 ^ccorc?. But see Jones v. Latham, 70 Ala. 164 (statutory) ; Avels v. Mobile Co. (Ala. 1891), 9 S. R. 423 (statutory) ; Weston v. Bear River Co., 5 Cal. 186, 6 Cal. 425 ; Naglee v. Pacific Co., 20 Cal. 529 ; Shipman v. ./Etna Co., 29 Conn. 245 ; Colt v. Ives, 31 Conn. 25 ; People's Bank v, Gridley, 91 111. 457; Fort Madison Co. v. Batavia Bank (Iowa, 1877), 32 N. W. R. 336 (statutory); Skowhegau Bank v. Cutler 49 Me. 315 ; Pinker- ton V. Manchester Co., 42 N. H. 424 ; Scripture v. Soapstone Co., 50 N. H. 571 ; Sabin V. Bank of Woodstock, 21 Vt. 353 ; Cheever v. Mayer, 52 Vt. 66; Murphy's Applic. 51 Wis. 519 (statutory), contra. — Ed. SECT. YII.] WORK ALL V. HARFOED. 415 WORRALL V. HARFORD. In Chaxceuy, before Lord Eldon, C, November 1, 1802. [Reported in 8 Vesey, 4.] The bill stated that in and previous to the year 1769 Edward Lloyd and William James, of Bristol, carried on business as merchants and copartners ; and the plaintiff was employed by them as their attorney and solicitor in all their legal business, and in procuring for them money on their bond ; that Lloyd dying, and James sinking in credit, the plaintiff was employed to issue a commission of bankruptcy against him: and in or about February, 1771, struck a docket on the petition of Nathaniel Stephens ; and was directed to summon, and did summon, a meeting of the creditors ; when it was agreed that James should execute a deed of assignment for the benefit of all said creditors, to be prepared by the plaintiff ; and accordingly by indenture, prepared by the plaintiff, and bearing date the loth of January, 1772, it was wit- nessed, that "William James did assign, transfer, and make over to defendants all the joint or copartnership stock in trade, upon trust to sell and dispose thereof ; and thereout in the first place to pay the expenses attending the application for said commission of bankruptcy, and also all the costs and charges of said deed and other incidental charges and expenses of the trust ; and to pay and reimburse them- selves all such costs, charges, damages, and expenses which they should be put unto in the management and execution of said trust ; and said defendants covenanted that they sliould make sale of said partnership effects, and get in all debts due to said copartnership ; and further, that they should, as often as such moneys should, after deducting tlie payments to be made tliereout as aforesaid, and reserv- ing a sulHcient sum to answer the further probable contingent expenses of the trust, amount to a competent sum to pay one shilling in the pound, pay the same equally amongst the said creditors according to their respective demands. The Ijill further stated, that the affairs of said partnership being very intricate, and there being various legal proceedings, and partic'ularly an appeal from one of his Majesty's courts in America, plaintiff was directed by said defendants to conduct such ai)peal on their Itehalf, and generally to manage and direct the legal business relating to Haid part- nership, and tlie trusts of the deed ; and tlie phiinlilT from time to time prepared deeds relating to said trust affairs, and prosecuted the appeal, and disbursed various sums, and took various journeys, and had and made various attendances on acTount of the trustees ; and 1)Y liis exer- tions and labor, and the sums expended by him, the defendants became indebted to the i)laintiff in a consid(!ral»le sum. Upon the execution of the trust deed the trustees proceeded to act In the trust ; but the whole of such partnership debts and credits have never been finally settled, 416 WORRALL V. HARFORD. [CHAP. III. nor have all the trusts of said deeil been performed and the accounts closed. The plaintiff hath delivered in bill of costs and disbursements paid and incurred by him as soliciior under the trust deed, and received some sums upon account from the said trustees ; but he hath never settled any account with said'trustees, and the whole of such bills have never been paid. James is long since deceased ; and the defendants, the surviving trustees, have never made any final dividend ; and the plaintiff, as solicitor of said trustees, having a considerable demand Hpou them, as before mentioned, frequently applied, and requested them to come to an account of said trust estate possessed or received by them under the deed, and to apply out of the balance in their hands a sufficient sum to discharge the bills and demands of plaintiff, and particularly on or about the 9th January, 1784, 19th November, 1787, 24th April, 1790, loth November, 1790; and at several times since, said Willianj James made applications to them for the same purpose. The bill then charged that a considerable balance, amounting to £80 9s. 3fZ. remains due to him as such solicitor ; and though many years have elapsed since the execution of the deed, yet that plaintiff hath continued from the date thereof nearly to the present time to act as solicitor thereto, and hath delivered bills of costs to the said defend- ants, and made applications for payment ; that his debt ought not to be considered as a simple-contract debt, as it is by the deed in the first place provided that the trustees shall out of the moneys to come to their hands pay and discharge the expenses of the commission of bankruptcy, and also all costs and charges of that deed, and also all other incidental charges and expenses relating to the execution of the trust thereof ; and in the next place, that the trustees should pay and reimburse themselves all their costs and charges relative thereto : and therefore his demand ought to be considered as a specialty debt, and the plaintiff had a lien upon the trust estate for his costs and charges. The prayer of the bill was, that the plaintiff may be declared a cred- itor under the trust deed for the amount of his bills of fees ; that the defendants may account for all and every the sums received by them, and for the application ; and that they may be decreed thereout to pay to the plaintiff the sum of £80 9.s. 3cZ., &c. To this bill the defendants, the surviving trustees, put in a general demurrer. Mr. Richards and Afr.^ Hart, in support of the demurrer, Mr. RoniUly and Mr. Martin, for the plaintiff.* The Lord Chancellor [Eldon]. This case must be determined upon the contents of this particular deed, with some attention to the nature of trust deeds in general, and the allegations of the bill. It is admitted that a bill of this kind is a perfect novelty. It is in the nature of the office of a trustee, whether expressed in the instrument ^ The arguments of counsel and a portion of the opinion relating to a question of pleading are omitted. — Ed. SECT. VII.] WOERALL V. HARFORD. 417 or not, that the trust property shall reimburse him all the charges and expenses incurred in the execution of the trust. That is implied in every such deed. But it Avould be strange from that implication to conclude that the persons employed by them are therefore creditors of the trust fund. I doubt very much, and desire not to be understood to admit, that, even if the trustees are charged not to be solvent, those persons may come upon the fund. They can have no better right upon the expression of what would, if not expressed, be implied. But par- ticular cases may be exceptions. Try this in bankruptcy. The peti- tioning creditor is answerable till the assignment. Can there be a doubt that the assignees, if there was nothing special in the deed, would have a clear right to pay all the expense incurred? It would be implied, if not expressed. But can it be said that therefore not the solicito)' only, but every person with whom the trustees had incurred a just and fair demand, might sue the trustees, and come for au account of the whole administration? That would be quite mischievous. This plaintiff had been employed to take out a commission of bank- ruptcy against the surviving partner. To the whole extent he had pro- ceeded, Stephens was and remained his debtor personally at the time this project was tliougbt of. He remained so after the meeting for the purpose of this trust deed. If the trustees had shown that they had paid Stephens in respect of that commission of bankruptcy, it would be impossible for this plaintiff to have a demand against tliem. The proposal to supersede the commission, and that a trust deed should be executed, providing for the expenses of preparing the deed, and that all the costs and charges should be reimbursed, succeeded. Suppose a bill had been filed recently after the transaction, and the proceedings and trust deed not paid for : the plaintiff, no party to the deed, and having clearly had the personal liability of Stephens and the trustees as to the commission, and the personal liability of the trustees for prepar- ing the deed, if they accepted it. It was not the meaning of the deed that he should have a right to sue in this way. It was his duty to in- form tliem of the inconvenience of giving a riglit to sue in this way ; for, as it has been observed, this would not stop witli tlic solicitor, for many other persons might be employed in the execution of the trust. The demwrer tvas aUoived,} 1 Hall V. Laver, 1 Hare, 571 Arnortl. In Hall V. I>avor, siijtm. Sir J. Wiprnm, V. C, saifl, p. .'577 : " Tdo cnso tliproforo resolves it.seif into a (|iiestif)ii of law, niunolv, whether if a trusteo, or one of Heveral cestui que trusts, cmp\o\a A HoUnUiT to act in tho matters of the tniHt, that retainer giveH th« solicitor a rif^ht of action afjain.st. each of the other crslui i/uf inisln, or a lien upon their Hharcs of tlie trnst ewtatr', for his costs incurred in relation to tho trust. That the above cirnirnBtances givo no ripht of action against any Imt the retaining party is clear. That the .same circnm.stances give no lien upon a trust fund, not ad- ministered in court, is more than jiroved liy tho case of Worrall r. H.irford, H Ves. 4,in which it wa« clearly lai. ' 53 Mi»8. 466. •422 NORTON V. piiELrs. [chap. III. maiul, he may proceed directly against the trust estate, and assert against it the demand the trustee could maintain, if he had paid or should pa}' the claim, and should himself proceed against the trust estate. Generally the trustee alone must be looked to. He stands between the creditor and the estate. He represents the estate, and deals for it. He is entitled to be reimbursed out of the trust estate for all disburse- ments rightfully made by him on account of it, and creditors must get payment from him ; but when the}' cannot do that, and it is right for the trust estate to pay the demand, and it owes the trustee, or would owe him if he had paid or should pay the demand, the rule, founded in policy, which denies the creditor access to the trust estate, yields to the higher considerations of justice and equity ; and, in order that justice may be done, the creditor ma}' be substituted, as to the trust estate, to ' the exact position which the trustee would occupy if he had paid or should pay the demand, and seek to obtain reimbursement out of the estate. Applying these principles to the facts of this case, it will be found that they bring it within the exception stated. Clearly, if Pearce, the trustee, had paid, or should pay, under a re- covery against him, the demand sought to be enforced against the trust estate, he would be a creditor of the estate. He is a non-resident of the State of Mississippi, where the trust property is and where the debt was contracted, and the creditor has the same rights, because of this, as to the trust property, as if Pearce was insolvent. The reason why in- solvency of the trustee is an element in the combination of circumstances admitting the creditor to proceed against the trust estate is because of the inability of the courts to coerce an insolvent person to pay his liabili- ties ; and the same considerations apply, ordinarily, in the case of the non-residence of the trustee, without regard to his pecuniary condition ; for a creditor seeking the aid of our courts should not be dismissed be- cause he might pursue a person to a foreign land, and there have a re- covery against him. If he cannot obtain justice through our courts except by departing in an exceptional case from a rule of policy, to secure justice the departure should be made. " Trustees have an in- herent right to be reimbursed, all expenses properly incurred in the ex- ecution of the trust, and no express declaration in the trust instrument is requisite to create that right." Hill on Trustees, 570 et seq. ; 2 Perry on Trusts, § 910. The trust-deed in this case vests the title of the property in Pearce as trustee, providing that he "is to permit the said Henry W. Vick, as agent for said trustee, ... to superintend, possess, manage, and control said property," &c., " with power to sell and exchange," &c. This conferred very large powers for incurring expenditures to be borne by the trust estate. Hill on Trustees, 571, 572. Vick was thus constituted the agent of the trustee for the very purpose of possessing, managing, and controlling the trust property. Debts properly made l)y Vick, agent and co-trustee, as he is elsewliere in the deed called, in the management of the trust property, were the SECT. VII.] FAIRLAND V. PERCY. 423 debts of Pearce, the trustee, with this qualification ; nameh', that he is exempted by the deed from respousibilit}- personally for the acts or conduct of Vick.^ Decree reversed and cause remanded. FAIRLAND v. PERCY and Others. In the Court of Probate, February 9, 1875. [Reported in Law Reports, 3 Probate ^ Divorce, 217]. Sir J. Hanxen.'^ In this case the plaintiff claims to be a creditor in equity of the estate of Robert Percy, deceased, and as such creditor asks for administration (with the will annexed) of the unadniinistcred personal estate of the deceased. The testator, by his will dated the 9th of March, 1868, appointed William Peacock and Henry Fenwick trustees and executors, and gave, devised, and bequeathed to his said trustees all his real and personal estate upon trust to permit and suffer his wife to receive the rents and profits and to carry on his business as a tailor for the term of her natural life, if she should so long remain his widow, and from and after the decease or second marriage of his said wife he directed the trustees to sell and convert into money all parts of his estate not consisting of money, and to divide the proceeds amongst his children as tenants in common. "William Peacock and Henry Fen- wick refused to accept the trusts of the will, and duly renounced pro- bate, and thereupon administration with the will annexed of the personal estate and effects of the deceased was granted to the widow, who, under the authority given to lior to carry on the business, continued to do so down to the time of her death in January, 1874. She did not marry a ' Askew V. Myrick, 54 Ala. 30 ; Dickinson v. Cnnniff, G.') Ala. ."iRl ; Mundon v. Bailev, 70 Ala. 63 ; Riack.shtar v. Biirko, 74 Ala. 239 ; Moselcy v. Nurniaii, 74 Ala 422 ; HaLcTsham i?. Hnguoiiin, H. M. Tharlt. 376 ; Wylly v. Collins, 9 Ga. 223 ; Sat- tprwhite v. Heall, 28 Ga. .'")2.j ; Gandy r. RaMiitt, .'iG Ga. 640 (srinhli) ; Malonc r. Riiice, 60 Ga. l.'>2 ; Robert v. Tifft, 60 (ia. .')66 ; Kuperrnan v. McGoheo, 63 Ga. 2.50; Jackson V. Poole, 73 Ga. 801 ; Greenfield v. Vason, 74 Ga. 126; Clojiton v. Gholson, 53 Mi.is. 466; ((■oini)are Pool v. FAh^, 64 Miss, .'i.').')) ; Hnslujiip; /;. Taylor, 82 Mo. 660; Cater c. Kverleigh, 4 Des.s. 19; .lamcH i;. Mayrant, 4 Dcss. .091 ; MontKomcry v. Evcrlcigh, 1 McC. i!67; Dougla-s >: Fra/.cr, 2 McC. Cli. 10.') ; Gnerry v. Capers, Hail. Kq. 1.59, 162; Manifrault r. 1) 16s. id., and this debt remains wholly unpaid, and the plaintiff and his partner hold no security for any part of it. The plaintiff claims in re- spect of this debt to be an equitable creditor of the estate of Robert Perc3% deceased. All parties interested in the estate of the deceased have been cited, but do not appear. It appears that Martha Percy, the widow of the deceased, died wholly insolvent, and left no property' out of which the plaintiff's debt can be satisfied. There can be no doubt that IMartha Percy was originally the legal debtor of the plaintifTs firm, and that had she or her estate been solvent thej' would have been bound to look to her or her estate for payment, and that no claim could have been made against the estate of the deceased.' But the cases cited in argument show that where a testator b}' his will directs that his business ma}' be carried on, and that his personal estate shall be used as capital with which to do so, the persons who after his death be- come creditors of the business, in addition to the personal responsibility of the individuals who give the order for the goods or otherwise contract the debt, are entitled in equit}- to claim against the estate of the testator, to the extent that he authorized it to be used in the business.''^ This is clearly laid down b}' Lord Eldon in Ex parte Garland : ^ "As to creditors subsequent to the death of the testator, in the first place, they may determine whether the}' will be creditors. Next, it is admitted they have the whole fund that is embarked in the trade, and in addi- tion the}' have the personal responsibility of the individual with whom they deal, the only security in ordinary transactions of debtor and creditor. They have something very like a lien upon the estate em- barked in the trade. They have not a lien upon anything else." The same principle is laid down in the other cases, the only one of which I need refer to is that of Owen v. Delamere,* recently decided by Sir J. Bacon, V. C. In that case a creditor of a business, carried on after the death of a testator with a portion of his estate in accordance with the 1 Owen V. Delamere, 15 Eq. 134 ; Laible v. Ferry, 32 N. J. Eq. 79 Accord. — Y^n. 2 Ex parte Garland, 10 Ves. 110; Ex parte Richardson, 3 Mad. 138; Thompson V. Andrews, 1 M. & K. 116 ; Cutbush v. Cuthush, 1 Beav. 184; Ex parte Butterfield, De Gex, 570 ; McNeillie v. Acton, 4 D. M. & G. 744 ; Ex parte Westcott, 9 Ch. 626 ; Owen V. Delamere, 15 Eq. 134 ; Re Sumner, W. N. (1884), 121 ; Re Firmin, 57 L. T. Rep. 45 ; Scholefield v. Eichelberger, 7 Pet. 586 ; Burwell v. Cawood, 2 How. 560 ; Smith V. Ayer, 101 U. 8. 320; Jones v. Walker, 103 U. S. 444; Cook v. Administra- tor, 3 Fed. Rep. 69 ; Edgar v. Cook, 4 Ala. 588 ; State v. Hunter (Ark., 1892), 19 S. W. R. 496 ; Pitkin v. Pitkin, 7 Conn. 307 ; Blodgett v. American Bank, 49 Conn. 9 ; Wilson v. Fridenbnrg, 21 Fla. 386 ; Stanwood v. Owen, 14 Gray, 195 ; Bacon v. I'omeroy, 104 Mass. 577, 585 ; Mason v. Pomeroy, 151 Mass. 164 ; Hagan v. Barksdale, 44 Miss. 186 ; Brasfield v. French, 59 Miss. 632 ; Laible v. Ferry, 32 N. J. Eq. 791 ; Willis V. Sharpe, 113 N. Y. 586; Stewart v. Robinson, 115 N. Y. 336 ; Delaware Co. v. Gilbert, 44 Hun, 201 ; Lucht v. Behrens, 28 Oh. St. 231 ; Gratz v. Bayard, 11 S. & R. 41 ; Mathews v. Stephenson, 6 Pa. 496 ; Laughlin v. Lorenz, 48 Pa. 275 ; Davis u Christian, 15 Grat. 11 Accord. — Ed. 3 10 Ves, 110. * Law Rep. 15 Eq. 134. SECT. VII.] FAIKLAND V. PERCY. 425 directions of his will, filed a bill for the administration of the testator's personal estate, as in a creditor's suit. This bill was dismissed b}- the Vice-Chancellor on the ground that as it appeared that the persons who carried on the business and had contracted the debt were solvent, the plaintift"s remed}' was by action at law against them, and not b}- an ad- ministration suit in the Court of Equity. And the Vice-Chancellor more than once points out that the case would be different if, as in the present case, the person primarily liable were insolvent. He says: "An ex- ecutor authorized to cany on a business, who carries it on, is liable for every shilling on every contract he enters into ; besides that, if he be- comes bankrupt, the persons who have trusted him have a right to say that that portion of the trust estate which was committed to him for the purpose of carrying on the business shall not be the subject of general administration." And again : " There can be no doubt about the prin- ciples on which a Court of Equity deals with such a case : the Court will give effect to the trust which has been created by the testator, and will keep separate and applicable only to the purposes of the trust that estate which the testator designated and directed to be emplo3'ed for that purpose. As Lord Eldon points out in £Jx parte Garland,' the creditor has not only the personal remedy against the executor, but he has a right also, if that should fail, to come against the trust estate : and so here, if an action had been brought against the defendants, and a fruitless judgment had been recovered against them, there would have been a right to go against the trust estate which the testator committed to the executors if it should be in existence in specie." I think that these passages establish that the plaintiff, in the existing state of facts, is an equitable creditor of the personal estate of Robert Percy, the de- ceased, in respect of the debt which the testator's widow contracted in the course and for the purpose of carrying on the business. In arriving at the conclusion that administration may be granted to the plaintilf as an equitable creditor, I am fortified by the decisions in analogous cases where administration has been granted to persons as creditors of a de- ceased's estat<,' in respect of debts not contracted by the deceased or in his lifetime. I allude to the cases of undertakers and those who have been at the expense of burying the deceased : Spitty's Case ; * Newcomlio v. Beloe.' It will be seen that my decision is ba.sed on the assumption that the estate of Martha Perc}-, the widow, is insolvent. As no oppo- sition has been offered to the motion, tlie fa(;t of this insolvency rc^^ts on the affidavit of the applicant ; but though the estate may be insolvent, it is liighly imiirobable that it is ab.solutely nil. On the contrary, it is highly probalde that there must be some trade debts due to the widow, and not to the estate of her deceased husband ; and, furtlicr. it is pos- sible she may have other creditors than trade creditois. I think, there- fore, it is necessary that the plaintilf should in tlie first place, as a legal > 10 Ves. no. '■' Cootc's Practice of tlio f'ourt oi I'robato, Gth cd. ]>. 94. » Law Kep. 1 P. & M. 314. 426 IN RE JOHNSON. [CIIAP. III. creditor of the widow, take out adniinislration to her estate. And further, as the interests of persons not before the Court may be affected, I shall impose the condition that justifying security be given. In re JOHNSON. SHEARMAN v. JOHNSON. In the High Court of Justice, Chancery Division, July 19, 1880, [Reported in 15 Chancery Division, 548.] AnjouRNED Summons. Peter Johnson, by his will, dated the 27th of May, 1873, appointed the defendant Robinson and another his execu- tors ; and, after making certain specific and pecuniary bequests, and directing the payment of bis debts, and funeral and testamentary ex- penses, he directed his executors, as soon as might be after his decease, to collect, get in, and receive all debts owing to him in respect of the business of a tailor and robe-maker then carried on by him at Cam- bridge, and also all other debts owing to him not connected with the business then carried on by him in London in partnership with Thomas Sadler, and (subject to the provisions thereinafter contained) to sell and convert into money all his Cambridge stock in trade, and stand possessed of the proceeds, and all other his personal estate and effects whatsoever (except his share and interest in the London business) not thereinbefore specifically bequeathed, upon trust to pay one equal fourth part thereof to and amongst such of the children of his de- ceased sister Catherine Neill (including his nephew John Neill) as should be living at the time of his decease ; one other equal fourth part to the plaintiff ; and the remaining two fourth parts to the several per- sons therein named. And the testator declared that in case his nephew John Neill should be under the age of twenty-one years at the time of his decease, it should be lawful for his said executors, upon the request of the said John Neill, to postpone the sale of his Cambridge stock in trade and allow his said business of a tailor and a robe-maker at Cam- bridge to be carried on by the said John Neill, for his own benefit, under the supervision of his said executors, until such time as the said John Neill sliould attain twenty-one, and during such period should use such part of the share of the said John Neill in his residuary personal estate as might be requisite for the due carrying on of the said busi- ness. And he directed, in case that provision was carried into effect, that an inventory and valuation of all his stock in trade at Cambridge should be taken immediately after his decease, and that on the said .John Neill attaining his age of twenty-one years he should have the option of taking the then existing stock at the amount of such valua- tion, and that if he declined to do so, and the said stock was sold, then SECT. VII.] IN RE JOHNSON. 427 the said John Neill should bring the amount of the proceeds of such sale into hotchpot on the calculation for the distribution of the resi- duary personal estate. The testator then gave certain directions as to the winding up of his partnership in the London business, and directed that his share and interest therein should fall into his residuary per- sonal estate. The testator died on the 25th of November, 1875, and his will was proved by the defendant Robinson alone, the other executor haviug renounced. There were living at the testator's death two children of his deceased sister Catherine, one of whom was the said John Neill, then an infant. After the testator's death the defendant did not get in the book debts of the Cambridge business as directed by the will, but he continued to carry on the business in his own name until the 30th of June, 1878, when John Neill attained twenty-one ; he also continued the manage- ment of the testator's share in the London business. For the purpose of carrying on the Cambridge business, the defendant advanced from time to time several sums of money out of John Neill's share in the testator's personal estate, which sums were repaid out of the business in the ordinary course of carrying it on, but the defendant kept no separate banking account for the business. An action having been instituted by one of the residuary legatees, and a judgment obtained for the administration of the testator's estate, it was found, on taking the defendant's accounts, that there was due from him a balance of £764, 16s. Id. in respect of profits from the Cambridge business, and also a balance of £1,668, Ss. Id. in respect of the general personal estate of the testator, including his share in the London business. Amongst the creditors who made claims against the estate under the judgment were several persons who had supplied the defendant with goods in the course of his carrying on the Cambridge business sul)se- quently to the testator's death ; but these claims being disallowed by the chief clerk, summonses were taken out by three of these creditors for the purpose of establishing their claims. One of the sumnionses was by a firm of Standen & Co., woollen warehousemen, and asked that a sum of £160 o.s. 10*/. due to tliem for goods sold and delivereil to the defendant, the executor, in the course of his carrying on the trade or business of a tailor from the time of the testator's death down to the 30th of June, 1878, might be forlliwith paid to tiiem by the said executor out of the share of the said .John Neill in the testator's resi- duary personal estate ; or otherwise tliaL it might be declared that the applicants were entitled to a lien on the portion of the estate of the said testator which on tlie 30th of Jinu;, 1H78, was embarked in the carrying on as aforesaid of the said testator's business ; and tliat an inquiry might be directed for the i)urpose of ascertaining what were the assets of the said testator which were so subject to the lieu of the applicants. 423 IN RE JOHNSON. [CIIAP. III. The two other summonses, which were by creditors for an aggregate amount of upwards of I'GOO, asked that they might be at liberty to bring iu their claims against the assets of the business carried on by the defendant under the powers of the will, in respect of debts incurred by him to the applicants in the course of such business, and that such assets might be applied in payment of what should be found due to the applicants in respect of tlieir debts. Upon the further considera- tion of the action all three summonses came on for hearing. It appeared that the defendant, the executor, was insolvent. Grosveyxor Woods^ for Messrs. Standen's summons.^ Speed and Maidlmv, for the other two summonses. R. F. Xorton, for Neill, was not called upon. E. W. Byrne, for the plaintiff. Seicard Bryce and E. C. Austin, for other parties. The defendant did not appear by counsel. Jessel, M. R. I shall dismiss these summonses, but T will give the creditors liberty to present a petition. I will not distribute the assets until they have presented a petition : that seems to me the regular course, but at present I do not see that they are entitled to anything. That seems to have been the course taken in several cases, and I think it is the right course, for the creditors are not parties to this suit at all. They ought to come in under a petition. With regard to the point that has been argued, I understand the doctrine to be this, that whei-e a trustee is authorized by a testator, or by a settlor, — for it makes no difference, — to carry on a business with certain funds which he gives to the trustee for that purpose, the creditor who trusts the executor has a right to say, " I had the personal liability of the man I trusted, and I have also a right to be put in his place against the assets ; that is, I have a right to the benefit of indemnity or lien which he has against the assets devoted to the purposes of the trade." The first right is his general right by contract, because he trusted the trustee or executor : he has a personal right to sue him and to get judgment and make him a bankrupt. The second right is a mere corollary to those numerous cases in equity in which persons are allowed to follow trust assets. The trust assets having been devoted to carrying on the trade, it would not be right that the cestui rpxe trust should get the benefit of the trade without paying the liabilities ; therefore the court says to him. You shall not set up a trustee who may be a man of straw, and make him a bankrupt to avoid the responsibility of the assets for carrying on the trade : the court puts the creditor, so to speak, as I understand it, in the place of the trustee. But if the trustee has wronged the trust estate, that is, if he has taken money out of the assets more than sufficient to pay the debts, and instead of applying them to the payment of the debts has put them into his own pocket, then it appears to me there is no such equity, because the cestuis que trust are not taking the benefit. ^ The argument of Woods is omitted. — Ed. SECT. VII.] IN RE JOHNSON. 429 The trustee having pocketed the money, the title of the creditor, so to speak, to be put in the place of the trustee, is a title to get nothing, because nothing is due to the trustee. It does not appear to me that in that case the creditor, wlio has never contracted for anything, who has only got the benetit of this equity, if I may say so, by means of the trustee, through the lucky accident of there being a trust, ought to be put in a better position than any other creditor. I do not see that any judge has said so. If we start with Ex. iKirte Garland, what Lord Eldon says is this: "It is admitted they [the creditors] have the whole fund that is embarked in the trade " — that is, as between themselves and the ex- ecutors the creditors can claim the application of the fund ; " and in addition they have the personal responsibility of the individual with whom they deal : the only security in ordinary transactions of debtor and creditor." [His Lordship then read down to the words " security for the creditors on the trade," ^ and continued :] Then,- after ex- pressing his strong opinion that only the property declared to be embarked in the trade should be answerable to the creditors of the trade, he says, "If I am not bound by decision, the convenience of mankind requires me to hold that the creditors of the trade, as such, have not a claim against the distributed assets, in the hands of third persons under the direction of the same will, which has authorized the trade to be carried on for the benefit of other persons." That does not decide the point I have mentioned at all. All that it decides is that the claim of the creditors is limited to the assets devoted to trade. What their right against those assets is. Lord Eldon does not decide. Then we have a case which I think comes nearest to the present case, Ex parte Edmonds." Lord Justice Turner says tiiis : ■* " The case of Ex parte Garland and the other cases referred to in the argument have not, in my opinion, any application to the present case. Tliey proceed upon the principle that the executor or trustee directed to carry ou the business having the riglit to resort for his indemnity to the assets directed to be enij)loy('d in carrying it on, tiie creditors of the trade are entitled to the benetit of that right, and thus become creditors of the fund to which the executor or trustee has a right to resort." Having read those two authorities, which, being the decisions of a Lord Chancellor and of the Court of Appeal in Chancery, would be binding on me, I need only say that I do not think tiie point arises in any of the subsequent cases, or was the subject of consideration in them. Owen v. Delamere,'' which contains a mere dictum of Vice- Chancellor Hacon, but still of course entitled to great respect if it did differ — whicli I do not think it does — fro!ii wliat Lord .lusticc THriier laid down in Ex j)arte E. 2 Reg. Lib. 1082, A, fol. 818. This cause came on again tbe 14th of December, when an order was made for the parties to attend the two Lords Chief .Instices and Lord Chief Baron, who were thereby (b'sired to certify their opinion on the (lucstion. Keg. ]>ib. 108.3, A, fol. 100. Afterwjirds in Michaelmas Term, 1684, ujton motion of the de- fendants, it was ordered that unless jtlaintiffs, the creditors, procured the certificate of I/ord Chief .Tu'elonging to the estate of a decedent, which by law are not subject to the pay- ment of debts, in the course of administration by the personal representatives, but which the testator has voluntarily charged with the payment of debts generally, or which, being non-existent at law, have been created in eijuity, under circumstances which fasten upon them such a trust. Adams on Equity, 254." — Ed. SECT. VII.] STATUTE 29 CHARLES U. 437 Statute 29 Charles II., Chapter 3, Sections 10 and II, 1676. [8 Statutes at Large, 407.] § 10. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June it shall and may be lawful for every sheriff or other officer to whom any writ or precept is or shall be directed, at the suit of any per- son or persons, of, for, and upon any judgment, statute, or recognizance hereafter to be made or had, to do, make, and deliver execution unto the party in that beiialf suing, of all such land.<«, tenements, rectories, tithes, rents, and hereditaments as any other per- son or persons be in any manner of wise seised or possessed, or hereafter shall be seised or possessed, in trust for him against whom execution is so sued, like as the sheriff or other officer might or ouglit to have done, if the said party against whom execution hereafter shall be so sued, had been seised of such lands, tenements, rectories, tithes, rents, or other hereditaments of such estate as they be seised of in trust for him at the time of the said execution sued ; (2) which lauds, tenements, rectories, tithes, rents, and other hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed, freed and discharged from all incumbrances of such person or per- sons as shall be so seised or possessed in trust for the person against whom such exe- cution shall be sued ; (3) and if any cestui que trust hereafter shall die, leaving a trust in fee-simple to descend to his heir, there and in every such case such trust shall be deemed and taken, and is hereby declared to be assets by descent, and the heir shall be liable to and chargeable with tlie obligation of his ancestors for and by reason of such assets, as fully and amply as he might or ought to have been, if tlie estate in law had descended to him in possession in like manner as the trust descended , any law, custom, or usage to the contrary in any wise notwithstanding. J This section of tlie Statute of Frauds applies only to bare trusts. Firth v. Nor- folk, 4 Mad. 503 ; D(je v. Greenhill, 4 B. & Al. 684 ; Harris v. Booker, 4 Biug. 96 ; Harris u. Pugh, 4 Biiig. 33.5 ; Pettit y. Johnson, 15 Ark. 55; Pope w. Boyd, 22 Ark. 535, 538; Pitts r. Bullard, 3 Ga. 5 ; Modisett v. Jolinsou, i Blackf. 431 ; State Bank ir. Macy, 4 Ind. 362; Hanna v. Aebker, 84 Ind. 411,415; Broadwell t;. Yantis, 10 Mo. 398 ; Mcllvaine f. Smith, 42 Mo. 45 ; Bogert v. Perry, 17 Johns. 351 ; 1 Johns. Ch. 52, 8. c. ; Jackson r. Bateman, 2 Wend. 573, 575 {semhle); Lynch r. Utica Co., 18 Wend. 236 ; Ontario Bank c. Boot, 3 Paige, 478 ; Kellogg v. Wood, 4 Paige, 578, 619 ; Bogert V. Power, 10 Paige, 562; Brown i. Graves, 4 Hawks, 342; Mordecai v. Parker, 3 l)ev. 425; Battle r. Petway, 5 Ired. 576; Thompson r. Ford, 7 Trod. 418; Tally v. Peed, 72 N. C. .336; Davis v. Inscoe, 84 N. C. 403; White r. Kavanagh, 8 Rich. 377; Bristow v. McCall, 16 S. C. 548; Shute v. Harden, I Yerg. 1 ; Smitheai v. Gray, 1 Humph. 491 ; Coutts ij. Walker, 2 Leigh, 268. See also Siiaw /•. Lind.sey, 60 Ala. 344; Smith v. Cockrell, 66 Ala. 64; McMuUeu V. Lant, 4 Iloust. 648; Blauchard v. Taylor, 7 B. Mon. 645; Anderson v. Briscoe, 12 Bush, .344. 'J'he e(|nitablo interest mast ho in the debtor at the time of tho execntion. Hunt V. Cole.-^, Com. 226 ; Harris v. Pugh, 4 Bing. 335. The equitaUe interest of a crown debtor may be reached by an extent. Ciiirton'a Ca.ie, Dyer, 160 a ; ca.se.s cited in (Jodb. 294. 298. 2'.I9 ; King v. Smith. Sugd. V. & P. (lOrh ed.) Append. No. 18; King v. Do la Motte. Forr 162; King v. Lanihe, McClcI. 402. Thi.s privilege is derived not from a Htatnte, but fmm tbo practice of tho exchcfpier at conmion law. Att'y-Gcn. »•. Sands. Hani. 495. In some jiirisdictions the statiitPS bavo gone miicli fiirtbor th.iii (lie Statnto nf Frauils in making ccpiitabjc interest.'^ nubject to n common l.iw execution. Kennedy V. Nnnan, 52 Cal. 331 ; Lc I{oy c Dnnkerly, 54Cal. 452; Davenport v. Laron. 17 Conn. 27S; Johnsfm v. Conn. Bank, 21 Tonn. 148. 159; Cro.nby r. Klkade Lodge. 16 lowii, 399; Ki.«ier )'. Sawyer, 4 Ka.s. 503; Miller i-. Allison, 8 (iill & J. 35; McMcclien u. Mnrman. 8 Gill & J. 57 ; Carpenter i: Bower, 42 Miss. 28; Block v. Morrison, 112 Ma 343 ; Drake v. Brown, 68 Pa. 223. — En. 438 CKEDITOKS OF SIR CHARLES COX. [CIIAP. III. THE CREDITORS OF SIR CHARLES COX. In Chancery, before Sir Joseph Jekyll, M. R., Michaelmas Term, 1734. [Reported in 3 Pcere Williams, -Sil.] Another part of this case was reserved for the further consideration of the court, and was as follows : — Sir Charles Cox, possessed of a term for years, made a mortgage thereof, and died possessed of the equity of redemption of the said mortgai^e, and leaving greater debts due from him at his death than his estate would extend to pay. Whereupon the question was, whether this mere equit}' of redemption was only equitable assets, and distribut- able equally 2»'0 rata, among all the creditors, without regard to the degree or quality of their debts ; or whether it should be applied in a course of administration ; in which last case the bond creditors would swallow up all the assets, without leaving anything for the simple contract creditors. And his Honor, after time taken to consider of it, delivered his opinion with solemnity ; ^ that this equity of redemption was equitable assets only, the mortgage being forfeited at law, and the whole estate thereby vested in the mortgagee. "Wherefore this right of redemption being barely an equitable interest, it was reasonable to construe its .equitable assets, and consequently distributable amongst all the creditors pro rata, without having respect to the degree or quality of their debts ; all debts being in a conscientious regard equal and equality the hightest equity; accordingly it was so decreed. But, Secondly, The court declared, that where a bond is due to A. but taken in the name of B. in trust for A. and A. dies ; this must ])e paid in a course of administration ; ^ for in such case there can hardly be any dispute touching the quantum of the debt, seeing the principal, interest and also the costs, must be paid to the obligee in the bond ; whereas in the other case, the costs must be paid by the party coming to redeem. For the same reason, if a term for years be taken in the name of B. in trust for A., this, on the death of A. the cestui que trust, will be legal assets ; for here the right to the thing is plain, and if the trustee contests it, he must, prima facie, do it on the peril of paying costs. ^ ' Tho opinion of the court is materially abridged. — Ed. 2 Will.fon V. Fielding (1718), 2 Vern. 763 Accord. — Y.n. 2 The distinction taken in the principal case between a trust and an equity of redemption was followed in Ilartwell v. Chitters, Anib. 308, and was approved extra- juilicially by Lord Hanlwicke in I'lunket v. Tenson, 2 Atk. 290, 294, and l)y Bayley, .J., in Clay v. Willis, 1 B. & C. 364, 372. But it is now f^enerally agreed that Sir .lo.seph Jekyll and Lord Ilardwicke were wrong, and that all equitable interests which come to an heir or executor as .such arc to be distributed like legal interests, upon the prin- ciple that equity follows the law. Sharpe v. Scarborough, 4 Ves. 538 ; Cooke v. Greg- SECT. YII.] KIRKBY V. DILLON. 439 KIRKBY V. DILLON. Is Chaxckry, before Silt John Leach, V. C, February, 1824. [Reported in Cooper, 504.] Sir John Leach. Formerly it was very common for debtors to con- vert their legal estates into equitable estates for th'e purpose of defeat- ing such of their creditors as might obtain judgments. That practice gave rise to numerous bills in this court for what is called an equitable execution. In many cases of that kind the legislature has now given to creditors full relief in the courts of common law by the Statute of Frauds, which directs the sheriff to deliver execution of all lands, which any person is seised or possessed of, in trust for him against wliom the execution is sued. Yet, however liberal the construction which the courts of common law may be disposed to put upon this enactment, it is obvious there must be cases in which a debtor has a beneficial interest iu laud, and yet no one can be said in a legal sense — in such sense as a court of common law must understand the statute — to be seised or possessed in trust for him. At all events, there must be cases in which no process of a common-law court can get at that estate, of which some one is seised or possessed in trust for the debtor. In such cases as these, presenting impediments, which the common-law courts cannot remove, bills for equitable execution must continue to be filed. ^ son, 3 Drew. 547, .549-51 ; Slice v. French, .3 Drew. 716 ; Mutlow v. Mutlow, 4 De G. & J. o.'59; Lewiii, Trusts (9th cd.), 941 ; 4 (Jray, Cas. on Prop. 042, 774, n. Equitahle a.s.sets in the sense of a.ssets (li.strihutal)le equally among all the creditors of a deceased iier.son could he created only in the ca.se of realty, and then too only hy a devi.^e in trust for, or charj^ed witii the imyincnt of the dehts of the testator. It was, indeed, the ojiiiiion of many judges that adevi.se of Innd for the payment of dehts would not he e<|nitahle a.ssets in the sense just mentioiu'd if the devise were to tiu^ heir or executor of the testator. Swinerton r. , Y. H. 2 II. IV. 21, 22, pi. 2, per Mark- ham, .1., Hiikill, J., (lisi^. ; Anon. Y. B. .3 Men. VI. pi. 4; Alexander r. (Jresliam 1 Leon. 221; Anon. 1 Roll A I). 920, pi. 6 ; Hurwell r. Corrant, Ilanl. 405 ; Dettick »•. Caravan, 1 Lev. 224; (Jirling v. Lee, 1 Vern. 6.3 ; Ilawkes c. Huckland, 2 Vern. 106; Cuttr-rhack /•. Smith, I'rec. Ch. 127. 2 Vern. 295, s. r. ; Hickham r. Freeman, I'rec. Ch. i:t6; Ma.sham u. Ilanling, l?nnh. .3.39 ; Blatch r. Wilder, 1 Alk. 420; Fre- moult I.'. Dediro, 1 P. Wms. 429; I'lunket i,-. I'ensnn, 2 Atk. 290; A 11am i-. lleher, 2 Stra. 1 270. Hut these ca-sos were finally overruled, ami the doctrine estahli.^hed that land devised to any one for the payment of dehts must he applied ratahly among n\] cred- itors. Silk V. I'rime, I Hro.V'. C. 1.3H, n. (4); Newton r. Heniu't. 1 Urn. C. C. 1.35; Margrave v. Tindal, 1 Bro. C. P. 1.36 n. ; Hailey r. Kkins, 7 Ves. .319; Shipherd r. Lutwidge. 8 Ves. 26 ; Helm v. Darhy, .3 Dana. IR5; Clondas r. Adams, 4 Dana, 60.3 ; ('lav r. Hart. 7 Dana, 1 ; Speed »•. Nelson, R R. Mon. 499 (overruling Mooro r. \Y.illi r, 1 .1. J. .Mar'^h 491) ; I'.ensrm r. Le Hoy, 4 .lohns. Ch 651.— Fo. ' Barthrop v. West. 2 Ch. "Rep 62; Anecll r. Draper. 1 Vern .399; Anon. 1. V. Wms. 445 (citfd): Smithicr c Lowis. 1 Vorn. 39H ; Kintr ". M.Tri«:ill. 3 Alk. 192; Rhirlev r. Watts, .3 Atk. 200; Bunion r. K'-nufdy. 3 Atk 7.3'l ; Dillon >: I'laski-tt, 2 Bligh, N H. 239; Smith v. Hurst, I Ci-11. 705; Neato v. Marlhorough, .3 Mv. & Cr. 440 KIRKBY V. DILLON. [CHAP. IIL 407 ; Hfiinett v. Powell, 3 Drew. 326 ; Gore v. Bowser, 3 Sm. & G. 1 ; Partridge v. Fos- ter, 34 Be:iv. 1 ; Ilorsley v. Cox, W. N. (1869), 22 ; Tillett v. Pearson, 43 L. J. Ch. 93 ; 'Anglo-Italian Bank v. Davies, 9 Ch. D. 275 ; A'e Sheppard, 43 Ch. Div. 131 ; Simpson V. linlor, 7 Ir. Eq. R. 182 Accord. In tliis country the et|uital)lo interests of a debtor are in most States applicable to the satisfaction of his debts, but the mode by which a creditor should proceed is largely regulated by statutes. As a rule, the creditor must exhaust his remedy .at law before resorting to a bill for equitable execution. But iu some States a creditor may proceed in ecjuity or at law at his option. Cromptou v. Anthony, 12 All. 33 ; Barry v. Abbot, 100 Miiss. 396; Wilson ». Martin-Wilson Co., 151 Mass. 515, 517. In some jurisdictions, e. g. California, lllinoih, Iiuiiana, Kansas, Micliigan, Minne- sota, New Jersey, New York, North and South Dakota, Oklahoma, Tennessee, the legis- lation has been iu the direction of exempting equitable interests of a debtor from the claims of his creditors, especially when the equitable interest came to the debtor from a third person. A full citation of these statutes and the decisions thereunder may be found in Gray, Restraints on Alienation {2d ed.), §§ 280-296. — Ed. SECT. VII.] SCOTT V. SCHOLEY. 441 SECTION VII. {continued), (b) Creditors of the Cestci que Tkdst. SCOTT V. SCHOLEY and Another. In the King's Bench, June 6, 1807. [Reported in 8 East, 467.] Lord Ellenborough, C. J., said that the case involved a question of great magnitude and extent, upon which it was proper for the court to deliberate before they pronounced their judgment. The case, therefore, stood over till this day, when his Lordship delivered the opinion of the court. This was an action on the case against the defendants, as sheriff of Middlesex, for a false return of tiidla bona to a writ of Jieri facias against the goods and chattels of George Coleman, Esq., which was tried before me, and in which a verdict was given for the plaintitf. Upon a motion for a new trial, it was ordered that the facts should be stated in the form of a case for the opinion of the court. [After stat- ing the material facts of the case his Lordship proceeded.] The question of law arising out of these facts is, whether the resi- duary beneficial interest of Mr. Coleman, under the trusts upon which a lease for years in the new theatre in the Hay market, and the appar- atus, &c., belonging to the same had been assigned, and which remains to him, after satisfying the several debts and inoum])rances thereupon, and indenmifying the trustees acting under the trust deed, were liable to be taken in execution by a writ of Jieri facias for the debt of the plaintiflf, a judgment creditor. Which question, in other and fewer words, amounts to this; viz., whetlier an equitable interest in a term of years can be sold under a Jieri Jaeias. The slieriff's authority is derived under a writ, by which he is commanded to cause to be made of the goods and chattels of the defendant the sum recov- ered ; and which sum is, of course, to be made by a sale of the things taken under the execution. If flic sheriff should not be able, before hi:^ writ is returnable, efF(!Ctu;illy to exeeutc it in this particular, he is allowed to excuse himself by returning that the good.s remain in his hands, unsold, for want of liiiyfrs; upon which another writ issjies, commanding him to expose to sale the goods so remaining in his liaiids unsold. The language of these writs and return evidently imports that the goodH and chattels, which are the object of them, are, properly, of a tangible natinc, capable of maiuial seizure, and of being detained in the sheriff's hands and ciistody, and such, also, as are conveniently capable of sale and transfer by the sheriff, to whom 442 SCOTT ?;. sciioley. [ciiAr. iii. the ^Yl•it is diiectcHl, for the satisfaction of a creditor. The Iciial in- terest in a term of years, both in respect of the possession of which the leasehold property itself is capable, and also in respect of the in- strument by which the term is created and secured (both of which are capable of delivery to a vendee), has been aiwaj's held to answer the description of the writ, and to be salable thereunder. Dyer, 3G3 a. Hut no single instance is to be found in the history and practice of the courts of common law in which an equitable interest in a term of years has ever been recognized as salable (seizable, of course, it cannot be) under a ^fieri facias. Besides, what locality belongs to an equitable interest, a resulting trust, for instance, in a term for years, so as to render it more fitly the subject of execution and sale by the sheriff of any one county than another? The degree of inconvenience which would attend the sale of such interests by the sheriff, although it would, in strictness, afford no argument against an ascertained legal power of the sheriff on such a subject, is a sutlicient reason why the court should anxiously watch the extension of such power in a case in an}' respect doubtful. What means, in any degree adequate, has the sheriff of taking an account of the actual amount of the incum- brances thereupon, or of ascertaining the extent of the indemnities which the trustees may be entitled to claim? The sale of such an interest, if it were to be made at all by the sheriff, must, necessarily, be made under circumstances of still greater ignorance and uncer- tainty as to its value than attend sales of any other description of property; and not onl}^ without any legal means of delivering a present possession of the thing sold, but, in general, without having even the type or instrument of any legal interest whatsoever, present or future, in the subject of such sale, to exhibit to the sight or deliver to the hands of a purchaser. It has, indeed, been urged in argument, as an inconvenience on the other side, if such equities of redemption in chattel interests shall be held not to be salable under an execution ; that, by means of a mortgage of the largest leasehold property for the smallest sum imaginable, such property might be effectually protected and withdrawn from the legal claims of every creditor. But the inconvenience in the case put does not extend beyond the necessity which such a step would occasion, of resorting to a different remedy, to be applied in another court, upon a bill to be filed by the judgment creditor in such other court for the purpose of obtaining it. In a court of equity he might be let in to redeem such mortgage incum- brances as stood in the way of his common-law remedy by execution; or he might have a decree for the sale of the mortgage term itself, in satisfaction of his rights as an execution creditor. Shirley v. Watts ^ is an authority for this purpose; as is also the case of Burdon v. Kennedy.^ In the case of Lyster v. Dolland,^ Lord Thurlow was, at \ast, of opinion that an equity of redemption of a term could not be 1 3 Atk. 200. 2 3 Atk. 7.39. 8 Reported in 3 Bro. C. C. 480, and 1 Ve.s. Jr. 431. SECT. VII.] DUNDAS V. DUTENS. 443 taken in execution ; tbcugh, at first, under an Apprehension that the language of the tenth section of the Statute of Frauds applied to such a case, he had inclined to hold otherwise. But the very silence of that statute, which, while it expressly introduces a new provision in respect to lauds and tenements held in trust for the person against whom an execution is sued, says nothing as to trusts of chattel inter- ests, affords a strong argument that those interests were meant to continue in the same situation and plight in respect of executions in which both freehold and leasehold trust interests equally stood prior to the passing of that statute. In the absence, therefore, of any authority in favor of the sale of such an equitable interest under a common-law execution against goods, we are of opinion, upon the grounds already stated, that the sheriff's return of nulla bona in this case, where the defendant in the execution had no other property besides the trust property in question, was not a false return; and, of course, that the verdict, which has been obtained by the plaintiff against the sheriff in this case, must be set aside, and a new trial granted.^ DUNDAS V. DUTENS. In Chancery, before Lord Thurlow, C, July 1, 1790. [Cited from a note by Lord Manners in 2 Ball ^- Beatty, 233.'^] In the case of Dundas v. Dutens, the question was, whether stock that had been settled could be brought within the reach of creditors. I have a note of that case, which on this point is more full than the printed report of it, which I will briefly state. Lord Thurlow says : " Is there any case where stock standing in a trustee's name can be made available to pay debts, or that debts (and stock is a chose, in action) shall be transferred to creditors for that purpose? You can- not have an execution at law against such effects. The opinion in Horn V. Horn' is so anomalous and unfounded, th.il forty such opinions 1 LyHter i;.Y)oIlanTad. 10; Thompson i>. Galloupe, 100 Mass. 435. • In Russell v. Grinncll, 105 Mass. 425 ; Cooper v. Cooper, 36 N. .T. Eq. 121 ; Moss's Est.. 15 Phila. 516. — an equitalde tenant for life was not permitted to obtain a con- veyance of a legal life estate. — Ed. SECT. I.] WATTS V. TURNER. 453 WATTS V. TURNER. In Chancery, before Sir John Leach, M. R., July 6, 1830. [Reported in 1 Russell ^ Mylne, 634.] A TRUST estate descended to the defendant ; and the plaintiff, who was cestui que trust, being entitled to the legal estate, a draft of the intended conveyance was sent to the solicitor of the defendant, and approved of by him. The defendant afterwards refused to execute the conveyance unless the plaintiff paid him a sum of money. The bill was filed to compel a conveyance. Mr. Pemheii,on, and Mr. Ohinrj, for the plaintiff. Mr. Wilbraham, for the defendant, the trustee, submitted, that as the plaintiff had chosen to file a bill, instead of applying for a convey- ance in a summary way by petition under the statute, he had himself to blame for any trouble and expense he had incurred. The Master of the Rolls made the decree against the defendant, with costs.^ 1 lu Y. B. 38 Hen. VI. 35. pi. 23 ; Cary, 13 ; Jones v. Lewis, 1 Cox, 199 ; Willis v. Hiscox, 4 M. & Cr. 197 ; Holford v. Phipps, 3 Beav. 434 ; Thorby v. Yeats, 1 Y. & C. C. C. 438; Campbell v. Home, 1 Y. & C. C. C. 664 ; Penfold v. Bouch, 4 Hare, 271 ; Firmin v. Pulham, 2 De G. & Sm. 99 ; Devey v. Thornton, 9 Hare, 222, 232 ; King v. King, 1 De G. & J. 6G3 ; Palairet v. Carew, 32 Beav. 564 (see also Re Knox, '95, 1 Ch. 538, under Trustee Act of 1893) ; Pearce v. Byers, 25 111. Ap. 51 ; Warren v. Ireland, 29 Me. 62, 68 ; Paine v. Forsaith, 86 Me. 357 ; Keid i: Gordon, 35 Md. 174 ; Hunne- well V. Lane, 11 Met. 163; Smith v. Harrington, 4 All. 566; Bowditch i'. Andrews, 8 AH. 339; Slater v. Hurlbut, 146 Mass. 308; Whall v. Converse, 146 Mass. 345; Sears V. Choate, 146 Mas-s. 395; Felton c. Sawyer, 41 N. H. 202; Archer r. American Co., 50 N. J. Eq. 33 ; Battle v. Pctway, 5 Ired. 576 ; Turnage v. Greene, 2 Jones, Eq. 63 ; Matthews v. McPherson, 65 N. C. 189; Taylor v. Huber, 13 Oh. St. 288; Freyvogle v. Hiighe-s, 56 Pa. 22'< ; Mcgargee !'. Naglcc, 64 Pa. 216; Hepburn's App., 65 Pa. 468; Culbertson's App., 76 Pa. 145; McndoiiliaH's Apj)., 151 Pa. 214; Fislicr i: Wister, 154 I'a. 65; Clark's Est.. 15 Phila. 573; Hubb's Est., 16 Phila. 211; Ives »;. Harri.s, 7 H. I. 413; Taylor v. Ta}lor, 9 H. L 119; Greene v. Aborn, 10 R. L 10 {sujira); Hugers V. Rogers, 10 H, I. 556; Nightingale r. Nightingale, 13 R. I. 113; Wiiclan v. Reilly. 3 W. Va. 597, 613, — the ri^ht of a restui r/ue trust to compel a conveyance of the legal estate by the tru-stee was fnlly recognized. But SCO contrii, Ring r. McCoun, 10 N. Y. 268 , Lent v. Howard. 89 N. Y. 169, 181 ; A,«chc V. A.sche, 113 N. Y. 232; Cuthbert r. Chauvet, 136 N. Y. 326; Re Lewis's Est., 23 N. Y. Sup. 287. Compare Farrington v. p'armers' Co., 21 N. Y. Sup. 194. If there are several rrsiuis i/w Irn.it tin- triistc"' will not bo conipcilcil to convoy unleHM all concur in demanding the itcmvi'vain'o. (iorard c. nm-klcy, l'!7 MiiMS. 475; Twining v. Girard Co., 14 Phila. 74; Conrow's App. 3 Pennyp. 350. There is, of course, nothing to prevent a Irusloo from voluntarily convoying the legal title to the person or porsons having the onliro n(piit;iblc intorost. Stone's Case, 1.3S Mass. 476. But see Lent v. Howard, 89 N. Y. 169, 181. — Ed. 454 SAUNDERS V. VAl'TIER. [CHAP. V. SAUNDERS V. VAUTIER. In Chancery, before Lord Langdale, M. R., May 7, 1841. [Reported in 4 Beavan, 115.] The testator, Richard Wright, by his will, gave and bequeathed to his executors and trustees thereinafter named all the East India stock which should be standing in his name at the time of his death, upon trust to accumulate the interest and dividends which should accrue due thereon, until Daniel Wright Vautier should attain his age of twenty-five years, and then to pay or transfer the principal of such East India stock, together with such accumulated interest and divi- dends, unto the said Daniel Wright Vautier, his executors, admin- istrators, and assigns, absolutely. And the testator devised and bequeathed hie residuary real and personal estate to the persons in his will named. The sum of £2,000 East India stock was standing in the testator's name, at his death, in 1832. A suit was afterwards instituted for the administration of the testator's estate; and Daniel Wright Vautier being an infant, a reference in the cause was made to the Master, to approve of a sum to be allowed for his maintenance. The Master reported his fortune to consist of the P2ast India stock in question, and reported that £100 a year ought to be allowed for his maintenance out of the dividends thereof. Sir C. C. Pepys, who was then Master of the Rolls, by an order dated the 25th of July, 1835, confirmed the report, and ordered the payment of £100 a year out of the dividends of the East India stock, for the maintenance of the infant, Daniel Wright Vautier. Daniel Wright Vautier attained twenty-one in March, 1841, and presented a petition to have a transfer of the fund to him. Mr. Fembertnn argued that the petitioner had a vested interest, and that as the accumulation and postponement of payment was for his benefit alone, he might waive it and call for an immediate transfer of the fund. Josselyn v. Josselyn.^ The Master of the Rolls. I think that principle has been repeatedly acted upon; and where a legacy is directed to accumulate for a certain period, or where the payment is postponed, the legatee, if he has an absolute indefeasible interest in the legacy, is not bound to wait until the expiration of that period, but may require payment the moment he is competent to give a valid discharge. Mr. Ktndersli^j/, for the residuary legatees, most of whom are in- fants, was proceeding to argue that the petitioner did not take a vested interest until he attained twenty-five, but the Master of the Rolls observed that the contrary must have been decided or assumed 1 9 Sim. 63. SECT. I.] CLAFLIN V. CLAFLIN. 455 Tvhen the order for m^iutenance had been made by the present Lord Chancellor. He did not, at present, see any reason to doubt the pro- priety of that order, but the argument must assume it to be erroneous, and call upon him to decide in a different manner, and he thought that it would be inconvenient to argue again, in this court, a point on which the judge of the court of rehearing had, probably, already expressed an opinion. The cause stood over, with liberty to apply to the Lord Chancellor, when the Lord Chancellor held the legacy vested, and ordered the ti'ausfer.^ ADELBERT E. CLAFLIN v. WILLIAM CLAFLIN akd Others. In the Supreme Judicial Court, Massachusetts, March 2, 1889. {^Reported in 149 Massachusetts Reports, 19.] Field, J.^ By the eleventh article of his will as modified by a codicil, Wilbur F. Claflin gave all the residue of his personal estate to. trustees, "to sell and dispose of the same, and to pay to my wife, Mary A. Claflin, one third part of the proceeds thereof, and to pay to 1 Cr. & Ph. 240. See to the same effect Jo-sselyn v. Josselyn, 9 Sim. 63 ; Jackson V. Marjorilianks, 12 Sim. 93; Curtis v. Lukin, 5 Beav. 147, 15.5, 156 (semhle); Rocke V. Uocke, 9 lieav. 66 ; Coveutry v. Coventry, 2 Dr. & Sm. 470 ; Re Jacob's Will, 29 Beav. 402; Tatham y. Vernon, 29 Beav. 604,617; Bnttansliaw y. M.artin, Johns. 89 ; Gosling y. Gosling, Johns. 265 I Magrath v. Morehcail, L. II. 12 Eq. 491; Hilton v. Hilton, 14 Eq. 468, 475; Croxton v. May, 9 Ch. 1). 388 {semhle); Nixon v. Cameron, 26 Ch. ])iv. 19; AV Tweedie, 27 Ch. 1). 315; Harhin r. Ma.'^terman, '94, 2 Ch. 184; In re John:f anotlicr person, e. t/., the trustee himself. The son cannot then as a niattor of absolute right call for a convf!yance of tlu; legal title, becauso he is not the solc^ rrslui i/w tnixl. Ho must therefore apfteal to the discretion of the court, which would not ordinarily do- feat, under such circumstances, tlic invariable ex|)Cctation8 of the testator. Harbin v. Ma.sterinan, 12 Eq. 559 ; Talbot c .fevers, 20 E(|. 255; Wealkw.all c. Tbornburgh, 8 Ch. 1). 2fil. See al.so Harbin r. .M.xst(!rnian, '94, 2 Ch. 1«4. Where jtnqierty is given to trustees upon trust for the children of a certain woman, and in flefault of children ujion trust for another pc^rson, the one entitled upon default of children may c(,mi)el a <'i)nvoyanco of tlie property by tho trustee as soon ;ih the woman, not having cbildren, has become so oM iluit in the estimation of the court she must confitiuo childless. Forty v. Re.ay, Dart V. & !'. (5th eil.) 345; (Jroves v. Groves. 12 W. R. 45; Re Widdowa Tni'sis, J.. R. II Eq. 408; Rr Millner's Estate, L. R. 14 Eq, 245; Brown i;. Taylor, W . N. (IH72). 190; ATaden r. Taylor. 45 E. J. Ch. 569; Arclier v. Dowsing, \V. N. (1 879), 43; Rr Taylor, 29 W. R. 3.50; Croxton >\ May, 9 Ch. D. 388; Davidson v. Kimpton, 18 Ch. I). 213; Browne v. Warnock, L. R, 7 Ir. 3; Mellon's Est. 16 Philn. 323. But .Mco Towle v. Delano, 144 .M.-uts. 95; Eist v. Rodney, 83 Pa. 483. — Ed. ' Only the opinion of the court is given. — Eo. 456 CLAFLIN V. CLAFLIN. [CIIAP. V. my son Clarence A. Clallin, one tliird part of the proceeds thereof, and to pay the remaining one third part thereof to my son Adelhert E. Chitlin, in the manner following, viz. ten thonsand dollars when he is of the age of twenty-one years, ten thonsand dollars when he is of the age of twenty-five years, and the balance wiien he is of the age of thirty years." Apparently, Adelbert E. Clafliu was not quite twenty-one years old when his father died, but he some time ago reached that age and received ten thousand dollars from the trust. He has not yet reached the age of twenty-five years, and he brings this bill to compel the trustees to pay to hiui the remainder of the trust fund. His conten- tion is, in eflfect, that the provisions of the will postponing the payment of the money beyond the time when he is twenty-one years old are void. There is uo doubt that his interest in the trust fund is vested and absolute, and that no other person has any interest in it, and the weight of authority is undisputed that the provisions postponing pay- ment to him until some time after he reaches the age of twenty-one years would be treated as void by those courts which hold that restric- tions against the alienation of absolute interests in the income of trust property are void. There has, indeed, been no decision of this question in England by the House of Lords, and but one by a Lord Chancellor, but there are several decisions to this effect by Masters of the Rolls and by Vice Chancellors. The cases are collected in Gray's Restraints on Alienation, §§ 106-112, and Appendix IL See Josselyn V. Josselyn;^ Saunders v. Vautier ; Rocke v. Rocke ; ^ In re Young's settlement ; ^ In re Jacob's will ; * Gosling v. Gosling ; " Turnage v. Greene ; ® Battle v. Petway.' These decisions do not proceed on the ground that it was the inten- tion of the testator that the property should be conveyed to the bene- ficiary on his reaching the age of twenty-one years, because in each case it was clear that such was not his intention, but on the ground that the direction to withliold the possession of the property from the beneficiary after he reached his majority -was inconsistent with the absolute rights of property given him by the will. This court has ordered trust property to be conveyed by the trustee to the beneficiary when there was a dry trust, or when the purposes of the trust had been accomplished, or when no good reason was shown why the trust should continue, and all the persons interested in it were sni juris and desired that it be terminated ; but we have found no ex- pression of any opinion in our reports that provisions requiring a trustee to hold and manage the trust property until the beneficiary reached an age beyond that of twenty-one years are necessarily void if tiie interest of the beneficiary is vested and absolute. See Smith v. Harrington ; * Bowditch v. Andrew ; ^ Russell v. Grinnell ; " Inches v, ^ 9 Sim. 63. 2 9 Rgav. 66. « \8 Bear. 199. * 29 Beav. ^02. ^ h. R. V. Johns. 265. « 2 Jones Eq. 63. '' 5 Ired. h'&. ^ 4 Allen, 566. » 6 Alkn, 33'J. 10 1 05 .Ma>:s. 425. SECT. I.] * CLAFLIN V. CLAFLIN. 457 Hill ; ^ Sears v. Choate.'^ This is not a dry trust, and the purposes of the trust have not been accomplished if the intention of the testator is to be carried out. In Sears v. Choate it is said, " Where property is given to certain persons for their benefit, and in such a manner that no other person has or can have any interest in it, they are in effect the absolute owners of it, and it is reasonable and just that they shoukl have the control and disposal of it unless some good cause appears to the con- trary." In that case the plaintiff was the absolute owner of the whole property, subject to an annuity of ten thousand dollars payable to himself. The whole of the principal of the trust fuud, and all of the income not expressl}' made payal^le to the plaintiff, had become vested in him when he reached the age of twenty-one years, by way of result- ing trust, as property undisposed of by the will. Apparently the testator had not contemplated such a result, and had made no pro- vision for it, and the court saw no reason why the trust should not be terminated, and the property conveyed to the plaintiff. In Inches i\ Hill, uhi supra, the same person had become owner of the equitable life estate and of the equitable remainder, and " no reason appearing to the contrary," the court decreed a conveyance by the trustees to tlie owner. See Whall v. Converse.* In the case at bar nothing has happened which the testator did not anticipate, and foi* which he has not made provision. It is plainly his will that neither the income nor any part of the principal should now be paid to the plaintiff. It is true that the plaintiff's interest is alienable by him, and can be taken by his creditors to pay his debts, but it does not follow that, because the testator has not imposed all possi])le restrictions, the restrictions which he has imposed should not be carried into effect. Tiie decision in Broadway National Bank v. Adams rests upon the doctrine that a testator has a right to dispose of his own property willi such restrictions and limitations, not repugnant to law, as he sees lit, and that his intentions ought to be carried out unless they contravene some positive rule of law, or arc against public policy. The rulo contended for ])y the plaintiff in tliat case was founded upon the same considerations as that contended for by the plaintiff in tiiis, antl tho grounds on which this court declined to follow the English rule in that case arc applicable to this, and for the reasons there given we are unable to see that the directions of the testator to the trustees, to pay the money to the plaintiff when he readies tlie ago of twenty-live and thirty years, and not before, are against pul)lic policy, or are so far inconsistent with the righte of property given to tiie plaintiff that tliry should not be carried into effect. It cannot be s.-iiil that these restric- tions upon the plaintiff's poHseHsion and control of the i)roi)orty arc altogether useless, for there is not the same danger that he will spend the property wiiile it is in the hands of the trustees as there would be if it were in his own. 1 IOC Masa. 575. ' 146 Mfwa. .-WS. • 146 Miwh. 345. 453 RE BROWNE'S WILL. ' [CHAP. V. Tn Sanford r. Laeklaiul ^ a, beneficiary who would have been en- titled to a conveyance of trust property at the age of twenty-six became a baiiknii^ at the age of twenty-four, and it was held that the trustees should convey his interest immediately to his assignee, as *■' the strict execution of the trusts in the will have been thus rendered impossible." But whether a creditor, or a grantee of the plaintiff in this case would be entitled to the immediate possession of the property, or would only take the plaintitf' s title sub modo, need not be decided. The existing situation is one which the testator manifestly had in mind and made provision for ; the strict execution of the trust has not be- come impossible; the restriction upon the plaintiff's possession and control is, we think, one that the testator had a right to make ; other provisions for the plaintiff are contained in the will, apparently suf- ticient for his support, and we see no good reason why the intention of the testator should not be carried out. Russell v. Grinnell.'^ See Toner v. Collins ; * Rhoads v. Rhoads ; * Lent v. Howard ; ^ Barkley v. Dosser ; * Carmichael v. Thompson ; '^ Lampert v. Haydel.* Decree affirmed.^ Re BROWNE'S WILL. In Chancery, before Sir John Romillt, M. R., July 29, 1859. [Reported in 27 Beavan, 324.] The testator bequeathed to his three trustees, who were also hia executors, the sum of £3,000 iJd per cent consolidated annuities, upon trust, to invest the same in the purchase of a government annu- ity, or if, fi'om any cause, a difficulty should arise as to the purchase of a government annuity, then in an office for the insurance of life, or in some other good security, to be payable during the life of Louisa Harris; and to be held upon trust to pay the same unto Louisa Harris for her sole and separate use, free from the debts or control of any husband, and so that she should not anticipate the same. And he declared that her receipt should be a discharge for the same, but that, in case of illness or other incapacity of Louisa Harris to give such receipt, it should be lawful for his trustees, in their discretion and of their uncontrollable authority, to dispense with the same, and to manage the said annuity, and, from time to time, to apply the same 1 2 Dillon, 6. 2 io5 Mass. 425. 8 67 Iowa, 369. * 43 lU. 239. 6 89 N. Y. 169. 6 15 j^ga, .529. '' .5 Cent. Rep. .'SOO. ^ 20 Mo. App. 616. 9 Avery v. Avery, 90 Ky. 613 (se.mbk) ; Ru.s.sell v. Gririnell, 105 Mass. 425 ; Het- zel V. Barber, 69 N. Y. 1,12 (semhh). Accord. See also Rhoads v. Rhoads, 43 111. 239. But if a trustee sees fit to convey to a cestui que trust who has the entire beneficial interest in the property, there is no one who has any standing to file a bill against the trustee even though the conveyance defeats the intention (jf the creator of the trust, Lemen v. McComas, 63 Md. 153. See Brophy v. Lawler, 107 111. 285. — Ed. SECT. I.] KE PHILBKICK'S SETTLEMENT. 459 for the maintenance and support, or, otherwise, for the personal ben- efit of Louisa Harris, during her life, at such times and in such man- ner as his trustees should think most conducive to her comfort and convenience. Louisa Harris, who was unmarried, being advised that she was entitled to have the £3,000 consols transferred to her, instead of the annuity directed to be purchased therewith, elected to have the sum of consols transferred to her instead of the annuity, and she gave the executors notice, requiring them to transfer it to her. The}^ refused 80 to do, and paid the amount into coui't under the Trustee Relief Act. Louisa Harris now presented a petition, praying a declaration that she was entitled to the £3,000 consols, and that it might be trans- ferred to her, accordingly. Mr. Selivyn and Mr. Fischer cited Ford v. Batley.^ Mr. liobhouse, for the executors. The Master of the Rolls held that the petitioner was entitled to have the consols transferred to her.- Re puilbrick'S settlement. Is Chancery, before Sir John Romilly, M. R., March 27, 18G5. [lieported in 34 Law Journal Rejx/rls, Chancers/, 368.] By a deed-poll, dated tlie 4th of March, IHIG, a fund was vested in trustees, upon trust, for the separate use of Haniial) Pliilbrick, a mar- ried woman, for her life, and after her death upon such trusts as she should by will appoint. By her will, dated the 20th of June, 1856, and expressed to l)e made in pursuance of the power, Hannah Philbrick appointed the funrl to various persons, giving a life-interest in part of it to her husband, and appointed two executors. She died in .June, 18G1, ami her executors proved her will. The trustees of the deed-poll being in doubt whether they ought to hand over the trust-fund to the executors, or to distribute it them- 1 1 7 Beav. 303. 2 Stokes V. Check, 28 Bear. 620; fiott v. Nainio, 3 Ch. D. 278 {semUc) ; RigRS i-. rearork, 22 Ch. Div. 2h4 ; /{>■ .MiiM.ctt, '91, 1 f'li. 707, 712; Fluko r. Fliiko, 16 N. J. Eq. 478; Morne r. Ilackeiisaik Bank, 47 N. J. Eq. 27'.); Iliilior v. I)..iiof;liii«>, 4;» N. J. ¥a{. 125; SavaRc r. Shornian, 24 Hiiii, 307 {nimble.]; rrentico r. .laiiHson, 79 N. Y. 478; Armstront; v. McK.-lvcy, 104 N. Y. 17'.»; fireonland v. Waddell, 116 N. Y. 234; Mel- leu V. Mellen, 13a N. Y. 210; McDonaM r. O'llnra, 144 N. Y. .')f.6 Armrd. See JVarson i'. Lane, 17 Ves. 101 ; P'ord v. Batlev, 17 Beav. 303 ; llctzcl v. Barber, 69N. Y. 1. — Ed. 400 BUSK V. ALDxVM. [CHAP. V. solves among tlie nppoiutees, paid the fund into court under the Trus- tee Relief Act. The executors thereupon presented a petition for the payment to them of the fund, to be admiuistered by them in accordance with the appointment contained in the will. j\[r. Baggallatj, and Mr. Hanhj, for the petitioners. Mi: CItarles Ball, for the trustees of the deed-poll, submitted that they were the proper persons to distribute the fund.^ The Master of the Rolls said that where the donee of a general power appointed the property to certain persons beneficially, the original trustees were bound to carry the appointment into execution; but if the donee appointed the property to trustees, those trustees were entitled to receive the property to be held upon the trusts declared by the donee; and when a married woman made a will in exercise of a power, and appointed executors, inasmuch as she could only make her will by virtue of the power, and could only have appointed the exec- utors for the purpose of administering the appointed property, she must be considered to have appointed the property to the executors as trustees. The expression in the judgment in Piatt v. Routh, that the executor could not have administered any part of the appointed property, only meant that, "but for the will exercising the power," the executor could not have administered. By the appointment of executors, the duty of administering the fund was, in his Honor's opinion, taken away from the original trus- tees, and committed to the executors; and the provisions of the 23 Vict. c. 15, rather confirmed this view than otherwise. The fund must, therefore, be paid to the petitioners.'^ BUSK V. ALDAM. Ls Chancery, before Sir R. Malins, V. C, November 3, 1874. [Reported in Law Reports, 19 Equity, 16.] This was a demurrer. The statements in the bill were as follows : — By will, dated in 1839, T. B. Pease, after giving £5,000 to three 1 The argument for the trustees is omitted. — Ed. 2 Cooper V. Thorut. '^ 2 .My. & Cr. 230. » f> Voh. 79.1. « 1 S. & S. 477. 6 1 J.'& II. 30. • 21 Boav. 300, 4G2 ONSLOW V. VVALLIS. [CIIAP. V. proceeds amongst tlie objects of tbo power was a valitl execution of the power. But I am unable to see how that can be an authority for taking away a fund from trustees who are lit and proper, and handing ; it over to others who may not be so fit, in a case where the duty of the " trustees is simply to hold the fund. I am asked to treat these cases as establishing a general law, that where, in all cases, a fund is settled upon trust for a mother for life, and then upon trust for her children as she should appoint, and she appoints to trustees for her children, the first trustees are bound to hand over the fund to the trustees appointed by the daughter. Here nothing more is required than that some one should hold the fund, and it is suggested that I am bound to hand it over to the second trustees. Mr. Cookson says that I decided the point in Ferrier v. Jay.' But what I there decided was, that where there was a general and a special power, and an appointment was made of both funds together to trus- tees in trust to pay debts and to apply the residue for the objects of the special power, the appointment must be read reddendo singula singulis, and the fund coming under the general power applied in the first instance to the purposes to which the fund subject to the special power was not applicable. I agreed with the decision in Cowx t\ Foster,^ that the circumstance of directing debts to be paid only meant that they were to be paid out of the particular portion of the mixed fund which could be so applied. I did also, in that case, undoubtedly, say that the second trustees were the most fit persons to have charge of the fund ; but I did not say that where it was a mere question which of two sets of trustees should hold a particular fund, the court would, necessarily, hand it over to the second set in point of date. The demurrer will he allowed.^ ONSLOW V. WALLIS. In Chancery, before Lord Cottenham, C. , November 21, 22, 1849. [Reported in 1 Hall and Twelt, 513.^ ] By indentures of lease and release, dated in July, 1837, A. L. Sarel conveyed the lands in controversy to Wallis, in fee simple upon trust, however, for Louisa Sarel. Louisa Sarel died in 1847. She devised all her lands to the plaintiffs in fee simple, upon trust Ho convert the same into money and to stand possessed of the money upon trust, in 1 L. R. 10 Eq. ."iSO. 2 i J. & II. 30. 8 In re Tyssen, '94, 1 Ch. 56 Accord. See Scott v. Loner, 25 Ch. D. 535, 545, per North, J., and s. c. 31 Ch. Div. 380, 886, per Cotton, L. J. — Ed. * 1 MacN. & G. 506; 8. c. — Ed. SECT. I.] ONSLOW V. WALLIS. 463 the first place, to pay thereout her debts, funeral, and testamentary ex- penses, and legacies ; and then to pay the legacies given by her iu a certain memorandum, signed b}' her, and marked with the letter A. The memorandum marked with the letter A. had not been found. It was alleged by the bill, and admitted by the answer, that there were debts of the testatrix which her personal estate was not sutficient to pay. The trustees under the will applied to the defendant to con- vey the hereditaments to them as such trustees; but he insisted that he was entitled to hold them for his own benefit, subject to the pay- ment of such portion of the charges created by the will as were prop- erly chargeable thereon, and which he offered to pay. The bill prayed that the defendant might be decreed to convey and assure to them, as such devisees as aforesaid, the hereditaments comprised in the deeds of July, 1837.^ The cause was heard by the Vice-Chancellor of England, on the 16th Januai'y, 1849, when he ordered a conveyance to be executed by the defendant, according to the prayer of the bill.- The defendant now appealed from that decision. Mr. Humphry, and Mr. Bird, for the plaintiffs. Mr. Rolt and Mr. Prior, contra. The Lord Chancellor. No case similar to this has been cited, where the owner of property which was on trust has given it to some- body else ; and whether it was so given beneficially or not, is a ques- tion which the defendant has no right to inquire into. It is not like the case of Burgess v. "NVheate. The only reason why the trustee, under such circumstances as existed iu that case, is allowed to hold property, is because there is nobody to take it from him; it does not belong to any person whom the law recognizes as having the right to ask for the execution of the trust. Now here the original owner, undoubtedly, had a right, as against the trustee, to direct what he should do with the property; he was a mere naked trustee. The tes- tatrix, in tills case, had a right to do what slie pleased with the bene- ficial interest, and she did l)y her will direct tiie legal estate to be conveyed, or, at least, gave the property, to the trustees of lier will. The question is, whether the defendant, who appears to be liie trustee of the legal estate, has any right to incjuire for what piir|)()se these l>arties arc to hold the trust property. It is a gift, in trust, it is true; but it is the ai)pointinent of persons who are to stand in the place of the original owner, as against the trustee. Tlii'ii \\\\y is the beneficial interest which is, by the operation of Ibe rule of law, in Burgess '•. Wheatc, to enure to the benefit of trustees, to enure to the benefit of this trustee? There is no want of persons authorized, as against him, to require a transfer of the beneficial interest. Sup- pose the testatrix had simply directed that the estate should he trans- ' Tho statement of the ca»o is abridgcJ, and tlio arginnouts of counsel are omitted. — En. 2 16 Sim. 483. — Kn. 464 ONSLOW V. WALLIS. [CIIAI'. V. feiTod, and had appointed now trustees, and directed the existing trustee to convey to those who are trustees under the will, could the trustee of the legal estate dispute the title of the trustees under the will, because they might or might not have the means of carrying into effect the trusts of the will ? The real question is, whether it is regulated by the doctrine in Bur- gess V. Wheate. I think that it is not regulated by the doctrine in Burgess v. "Wheate at all, because that case proceeds on the fact of ther^ being no persons having a right to control the legal estate, and here there are persons authorized to control the legal estate. I do not take exactly the view which the Vice-Chancellor seems to have done, because he seems to have considered that the matter would depend on the presumed intention of the testatrix. For that purpose, you are to assume she intended that the paper A. should not be pro- duced, and therefore there would be a failure of her declared inten- tion. Therefore, if there is any trustee who is to have the benefit of the doctrine in Burgess v. Wheate, the trustees under the will are to have it. It cannot be considered that the testatrix had any such view at all. It must be presumed, she intended that the purposes declared by her will should be carried into effect. Those purposes have failed, in consequence of that paper A. not being produced ; it may be produced hereafter, or it may not. I do not proceed on that ground, but I proceed on this, — that there are persons appointed by the owner of the property, to whom the property is to be conveyed. They are the only parties having a right to it; whether or not they have power afterwards to dispose of all the beneficial interest, is a matter with which the defendant "Wallis, as mere owner of the legal estate, has nothing whatever to do. This seems to me to be a case which does not fall within the doc- trine of Burgess v. Wheate, so far as the defendant, Wallis, is con- cerned; and, therefore, the direction of the Vice-Chancellor for a conveyance, under the terms of the will, is, I think, a proper decree, and it must be affirmed, with costs. ^ 1 Compare Re Lashmar, '91, 1 Ch. 258. If X. is a trustee for A., and A. assigns his equital)le interest to B. in trust for C, B. is entitled to demand a conveyance of the legal estate from X., and C. is not a necessary party to the bill. Angier v. Stannard, 3 M. & K. 566. — Ed. SECT. IL] TIDD V. LISTER. 465 SECTION II. The Duty to put Cestui que Trust in possession of the Trust-res. TIDD V. LISTER and Others. In Chancery, before Sir John Leach, V. C, November 20, 1820. [Reported in 5 Maddock, 429.] The Vice-Chancellor.^ The testator in this case, after giving to his wife and daughter the personal occupation of the house in which he resided, and the use of his furniture, has devised and bequeathed ' his whole real and personal property to certain trustees upon trust, in the first place, to pay his funeral expenses, and debts, then to keep the buildings upon his estate, consisting of freehold, copyhold, and leasehold, insured against loss or damage hy fire; next, to pay the premiums of certain policies of assurance on the lives of his two sons, which are to form a provision for their widows and children ; then to pay annuities of sixty guineas each to his two sons; and, lastly, he has given the surplus income between his wife and daughter during their joint lives, and the whole surplus income to the survivor for life; and in case his two sons should survive his wife and daugh- ter, then he gives to them his whole real and personal estate. Soon after the death of the testator, a bill was filed in this court for the execution of the trusts of his will, and in the progress of that suit the debts and funeral expenses were paid out of the personal estate, and the residue of the personal estate was secured in the name of the Accountant-General, and is of an amount sudlcient to satisfy the two annuities of sixty guineas each, given to tiie sons, who do, accordingly, receive tlie same from the Accountant-Clenoral. The premiums of the policies of assurance continue to l)e paid out of the rents and profits of the estates. The mother died in the year 1H1'.>, and the daughter, who is become entitled fo the whole surplus income of the real and personal estate, has married. The mother, the two sons, and two other ]»ersons wore the trustees named in the will; one of these j)ersons is dead, the other lias but little interfered in the trusts of the will, one of the sons is abroad, and the management of the property has principally devolved iii)on the son, William Lister. The f)resent bill is filed by the dauglit((r and her husband, i)raying a conveyance, surrender, and assignment of the legal estate from the trustees, and that tlie plaintilTs may be let into possession, or that a receiver may be appointed. The prayer for the conveyance, surrcn- ^ Uulj the opiuiou of tlio court ix given. — En. 30 466 TIDD V. LISIUK. [CUAI'. V. der, and assignment was abandoned at the bar, but it was insisted that it is a matter of course in a court of equity, to divest a trustee of the management of the trust pruperty, and to deliver the possession to the cestui ijue trust for life. And that the only dillicully here was, that the trustees are in the first place directed to pay certain pre- miums upon policies of assurance, which remained to be provided for out of the rents and profits of the estates, and that to remove this dillieulty the daughter's husband was willing to invest in the cause a sum sulficieut to answer the amount of those annual payments; and the case of Blake v. Bunbury ^ was cited as an authority for this doctrine. My first impressions were strongly against the existence of any such rule. It is perfectly plain from the continuing nature of this trust that the testator intended that the actual possession of the trust property should remain with the trustees ; and it did appear to me a singular proposition that if a testator who gives, in the first instance, a beneficial interest for life only, thinks fit to place the direction of the property in other hands, which is an obvious means of securing the provident management of that property for the advantage of those who are to take in succession, that it should be a principle in a court of equity to disappoint that intention, and to deliver over the estate to the cestui que trust for life, unprotected against that bias which he must naturally have to prefer his own immediate interest to the fair rights of those who are to take in remainder. Independently of the purpose of management of the property, a testator may be considered in the ease of a female cestui que trust for life, as having a further view to her personal protection in the case of her marriage. The husband can only compel the trustee to account to him for the wife's income by the aid of a court of equity; and this court, in cer- tain cases of misconduct by the husband, will not compel the trustee to account to the husband, but will secure the income for the benefit of the wife. It is manifest that this protection would, to some extent, be prejudiced, if the husband were put into the possession of the trust estate. The case of Blake v. Bunbury is no authority for the proposition for which it was cited. It was not the case of a cestui que trust for life, but the case of a legal tenant for life, subject to a term for rais- ing a charge. There was there no purpose but to raise the charge, and the legal tenant for life, securing the charge, had, upon every principle, a right to the possession. There may be cases in which it may be plain from the expressions in the will that the testator did not intend that the property should remain under the personal manage- ment of the trustees. There may be cases in which it may be plain from the nature of the property that the testator coJild not mean to exclude the cestui que trust for life from the personal possession of 1 1 Yes. Jr. 194 ; 1 Ves. Jr. 514 ; 4 Bro. C. C. 21, 8. c. SECT. II.] TIDD V. LISTER. 467 the property, as in the ease of a family residence.^ There may be very special cases in which this court would deliver the possession of the property to the cestui que trust for life, although the testator's iuteu- tion appeared to be that it should remain with the trustees, as where the personal occupation of the trust property was beneficial to the cestui que trust, there the court taking means to secure the due protec- tion of the property for the benefit of those in remainder, would, in substance, be performing the trust according to the intention of the testator. The present case is not one of special circumstances. It is not the personal occupation, but the management of the property that is sought by this bill. The cestui que trust for life is a, feme covert. Two of the trustees are the persons who, if they survive the wife, will be entitled to this property. The testator has thought fit to place his property in their hands, and out of the management of the cestui que trust for life, and I have no authority to revoke his will. There is, however, in this bill a prayer for a receiver, and allega- tions of misconduct to support that prayer. These allegations are denied by the answer, and not proved. But I find in the answer that the acting trustee, William Lister, expresses himself to l)e willing that a receiver should be appointed. If the plaintiffs desire a receiver, they are entitled to it upon this consent of the trustee. - 1 Baylies v. J5aylics, 1 Cull. .537 ; Powys v. Blagrave, Kay, 495, 4 D. M. & G. 448 ; Williamson v. Wiikius, 14 Ga. 416, 422 ; Wade v. Powell, 20 G.i. G45. See also Kaj v. Powel, 1 Vcs. Jr. 408 ; Denton v. Denton, 7 Beav. 388 ; Honier v. Wheelwright, 2 Jur. X. S. 367; IIoMkins >: Cainjibell, W. N. (1869), ^9; Etchella v. Williamson, W. N. (1869), 61 ; Young r. Miles, 10 B. Mon. 287. — En. 2 See to the same effect Pugh v. Vaughan, 12 Beav. 517; Taylor v. Taylor, 20 Eq. 297,3 Ch. D. 145; Davis v. Hunter, 23 Ga. 172; Cux i-. Williams, 5 Jones, Kq. 150; VVeckham v. Berry, 55 I'a. 70. The effect of Tidd v. Lister ha.s been greatly modified in England hy the Settled Land Acts, as aj)j)ears from the fidlowing extract from tlio opinion of Kokowich, J., in West V. Wytlifs, '93, 2 Ch. 369, 374 : " My conclusicm is tli.it the uld autlinritios, <>f which Tidd v. Lister may be taken to be the typo, and which were snmniari/cd by the late Master of the Kolls in Taylor v. Taylor, 20 Etj. 297, may be treated jis largely, if not altogether, nbrogatf-r! by the Acts just mentioned. I must not be understood as saving that even now an equitjible ten:uit for life, where the trustees in whom the legal estate is vested have duties of management and the like to perform, is entitled, a.s a matter of course, to be let into j)osses8ion ; but I intend to hold that the powers granted to and the duties imjioscd on a tenant for life, ns defined by the Sittird l,alings of (he otlier cestui que trust in whose share he has no inlcrost, HJiowiiig whether those shares are or are not iiuMiinbranced. I tiiink, then, for these reasons, that there ought to be a fiu'ther order in the terms tho plaintifTasks for, but the plaintiff must pay th(! costs of the motion.' 1 Low V. Bouvcrio, '91, 3 Ch. 82, 99, per Limlloy, L. J.; Siiwyor v. GocM.ini, 95, 1 Ch. 474 Accord. A tniHtco iH rpf;ii!arly Ijound to prodiir*' for tlie iiiH|iortiim nf llic rrxtiti que truxt nil deeds and documents in his poisession rel.itiiig to tho trust cjrtatc Clark v. Ormonde, 470 IN RE TILLOTT. [CIIAP. V. Jao. 108, 120; Gough v. Offloy, 5 Do G. & Sin., 253; l^iigden v. Tvlcc, 21 Bcav. 545; Smith r. Barnes, L. R. 1 Eq. 65; Simpson i*. Batliurst, 5 Ch. 193, 202 ; In re Cowin, 33 Ch. D. 179. Ill like manner a trustee must produce opinions of counsel procured hy him to guitie him in the due administration of the trust. Dovaynes v. Robinson, 20 Beav. 42 ; Wynne V. Ilnmherston, 27 Beav. 42; Talliot v. Mar.^hficld, 2 Dr. & Sm. 549; 7?e Mason, 22 Cii. 1). 609. But opinions procured by a trustee with a view to defending himself against legal proceeding by the cestui que trust are privileged. Brown v. Oakshott, 12 Beav. 252 ; Talbot v. Marshfield, 2 Dr. & Sm. 549 ; unless the trustee and the coun- sel are combining fraudulently or unfairly against the cestui que trust. Follett v. Jef- fervs, 1 Sim. n. s. 3; Russell v. Jackson, 9 Hare, 387; Re Postlethwaite, 35 Ch. D.'722. In Wynne v. Ilumberston, supra, Sir John Romilly, M. R., said, p. 423 : " There can be no question that the rule is, that where the relation of trustee and cestui que trust is established, all cases submitted and opinions taken by the trustee to guide himself in the administration of his trust, and not for the purpose of his own defence in any litigation against liimself, must be produced to the cestui que trust. They are taken for the purpose of administration of the trust, and for the benefit of the persons entitled to the trust estate, who will have to pay the expense thereby incurred." Accounts. — A trustee is bound to keep clear and accurate acc(junts of the trust property and to produce them for the inspection of the cestui que trust. White v. Lin- coln, 8 Ves. 363 ; Freeman v. Fairlie, 3 Mer. 24, 43 ; Anon. 4 Mad. 273 ; Pearse v. Green, 1 Jac. & W. 135, 140; Clarke v. Ormonde, Jac. 108, 120; Turner v. Corney, 5 Beav. 515; Gray v. Haig, 20 Beav. 219; Springett v. Dashwood, 2 Giff. 521 ; Kemp V. Burn, 4 Giff. 348; Wroe v. Seed, 4 Giff. 425; Lewin, Trusts, (9th Ed.) 1109; Green v. Brooks, 81 Cal. 328; Waterman v. Alden, 144 111. 90; Loud v. Winchester, 52 Mich. 174 ; Blauvelt v. Ackerman, 23 N. J. Eq., 495 ; Elmer v. Loper, 25 N. J. Eq. 475, 482 ; In re Gaston, 35 N. J. Eq. 60, 348 ; Martin v. Wilbourne, 66 N. Ca. 321 ; Walker v. Sharpe, 71 N. Ca., 257 ; Libbett v. Maultsby, 71 N. Ca. 345 ; Hartraan's Ap., 90 Pa. 203 ; Dugan's Est., 17 Phila. 454 ; Booth v. Siueath, 2 Strob. Eq. 31. See further, Walker v. Symonds, 3 Sw. 38 ; Ottley v. Gibby, 8 Beav. 602 ; Newton V. Askey, 11 Beav. 145, 152; Burrows v. Walls, 5 D. M. & G. 233, 253 ; Sloo v. Law, 3BlatcM. 459.— Ed. / / *<■ '«aK^ // ' ^^ ^ A^H^*^"'^ ^^ /4jLA.^%'-€y^ y!*^- 4 A*^A u ';>-) ) ; ClonRh r. Bond. 3 M. & Cr. 4»0, 490 ; Dnrkn v. Martyn, 1 Bonv. 52.') ; IJetiden v. Wesley, '2U Meav. 21.3 ; [n rr Tnrker. !»4, 1 Ch. 724 ; I'erley r. Snow, 1 Hitchic. Kq. .37.3; Worts r. Worts, 18 Ont. .3.32 ; Barney r, Saunders, 10 How. MU.hi^; l/cwis V. Cook, 18 Ala. 3.34 (semhie) ; Moore v, nninilton,4 Kla. 112; Slate c. Johnson, n^^> /^^c^-^p^ i^X 472 KING V. TALBOT. [CHAP. V. A. KING V. C. N. TALBOT and Others. In the Court of Appeals, New York, March, 1869. [Reported in 40 New York Reports, 76.] "Woodruff, J.^ It is conceded, that in England, the rule is, and has long been settled, that a trustee, holding funds to invest for the benefit of his cestui que trust, is bound to make such investment in the public debt, for the safet}'' whereof the faith of their government is pledged ; or in loans, for which real estate is pledged as security. And that, although the terms of the trust commit the investment, in general terms, to the discretion of the trustee, that discretion is controlled by the above rule, and is to be exercised within the very narrow limits which it prescribes. As a purely arbitrary rule, resting upon any special policy of that country, or on any peculiarity in its condition, it has no application to this country. It is not of the common law. It had no applicability to the condition of this country while a colony of Great Britain, and cannot be said to have been incorporated in our law. So far, and so far only, as it can be said to rest upon fundamental principles of equity, commending themselves to the conscience, and suited to the condition of our affairs, so far it is true, that it has ap- propriate application and force, as a guide to the administration of a trust, here, as well as in England. I do not, therefore, deem it material to inquire, through the multi- tude of English cases, and the abundant texts of the law writers, into the origin of the rule in England, or the date of its early promulgation. Nor, in this particular case, do I deem it necessary to determine whether it should, by precise analogy, be deemed to prohibit here investments in any other public debt than that of the State of New York. Neither, in my judgment, are we at liberty, in the decision of this case, 7 Blackf. 529; Mattocks v. Moulton, 84 Me. 545, 552; Hunt v. Gontrum (Md. 1894), 30 Atl. R. 620 ; Harding v. Larned, 4 All. 426 ; Clark v. Garfield, 8 All. 427 ; Judge V. Mathes, 60 N. H. 43.3 (but see Knowlton v. Bradley, 17 N. II. 458) ; Gray v. Fox, Saxton, 259 ; Vreeland r. Schoonmaker, 16 N. J. Erj. 512; Sherman v. Lanier, 39 N.J. Eq. 249 ; Brewster v. Demarest, 40 N. J. Eq. 559 ; Smith v. Smith, 4 John. Ch. 281 ; Baskin v. Baskin, 4 Lans. 90 ; Le Fever v. Hasbrouck, 2 Dem. 567 ; Re Foster, 1 5 Hud, 387 ; Re Cant, 5 Dem. 269 ; Re Blauvelt, 20 N. Y. Sup. 119; Nyce's Est., 5 Watts & S. 254; (but see Re Ogle, 5 Barr, 15); Swyer's App. 5 Barr, 377; Wills' App. 22 Pa. 325 ; Frankenfield's App. 127 Pa. 369, n. ; Baer's App., 127 Pa. 360 ; Nance v. Nance, 1 S. Ca. 209 ; Dunn i;. Dunn, 1 S. Ca. 350; Davidson v. Moore, 14 S. Ca. 251 ; Wynne v. Warren, 2 Heisk. 118 Accord. Higgins V. McClure, 7 Bush, 379 ; Barney v. Parsons, 54 Vt. 623 Contra. The creator of the trust may authorize investments upon personal security alone. Denike v. Harris, 84 N. Y. 89. — Ed. 1 r)nly so much of the opinion of the Court is given as relates to the propriety of the trustees' investment. — Ed. SECT. IV.] KING V. TALBOT. 473 to propound any new rule of conduct, by \ih.\ch to judge of the liability of trustees now subjected to examination. Under trusts heretofore created, the managers thereof performed their duty with the aid of rules for the exercise of their discretion which were the utterance of equity and good conscience, intelligible to their understanding, and available for their information ; otherwise, trusts heretofore existing have been traps and pitfalls to catch the faithful, prudent, and diligent trustee, without the power to avoid them. But it is not true, that there is no underlying principle or rule of conduct in the administration of a trust wLicii calls for obedience. Whether it has been declared by the courts or not, whether it has been enacted in statutes or not, whether it is in familiar recognition in the affairs of life, there appertains to the relation of trustee and cestui que trust, a duty to be faithful, to be diligent, to be prudent in an admin- istration entrusted to the former, in confidence in his fidelity, diligence, and prudence. To this general statement of the duty of trustees there is no want of promulgation or sanction, nor want of sources of information for their guidance. In the whole history of trusts, in decisions of courts for a century in England, in all the utterances of the courts of this and the other States of this country, and not less in the conscious good sense of all intelligent minds, its recognition is uniform. The real inquiry, therefore, is, in my judgment, in the case before us, and in all like eases : Has the administration of the trust, created by the will of Charles W. King for the benefit of the plaintiff, been governed by fidelity, diligence, and prudence? If it has, the defendants are not liable for losses which, nevertheless, have happened. This, however, aids but little in the examination of the defendants' conduct, unless the terms of defiuitiou are made more precise. What are fidelity, diligence, and discretion? and what is the measure thereof, which trustees are bouna of prudence, to place the principal of the fund in a condition in wliich it is necessarily exposed to the hazard of loss or gain, according to the success or failure of the enterprise in which it is embarked, and in which, by the very terms of the inoestment, the principal is not to be re- turned at all. It is not denied, tliat the employment of the fund as capital in trade would be a clear departure from the duty of trustees. If it cannot lui so employed under the management of a copartnership, I sec no rcastni for saying that the incorporation of the partners tends, in any degree, to justify it. The moment the fund is invested in bank, or insurance, or r.iih-o;»d stock, it has left the control of the truHtees ; its safety and tlie hazard or risk of loss is no longer dependent upon their skill, care, or discre- tion in its custody or management, and the terms of the investment do not contemplate that it ever will be returned to the trustees. 476 KING V. TALBOT. [CIIAP. V. If it be said, that, at any time, the trustees may sell the stock, (which is but another name for their interest in the property and busi- ness of the corporation), and so repossess themselves of the original capital, I reply, that is necessarily contingent and uncertain ; and so the fund has been voluntarily placed in a condition of uncertainty, de- pendent upon two contingencies : First, the practicability of making the business profitable; and, second, the ju testator, nor in the due performanee of your duty, I waive all objection on that account, except as to the stock of the Saratoga and Washington Kaih-oad Company. That, I reject and return U) you. Is it doubtful that his position must be sustainc^l? Tlie result is, that the main features of the judgment herein must be affirmed. All the judges concur in the result to wiiich Judge Woodkikk ar- rived. Ml KUAY, J., thought it ft setth'd principle of law, in this State, that a trustee, holding trust fundn, for investment for the benefit of minor children, must invest in Goveruuieut or real estate securities, and that 478 DICKINSON, APPELLANT. [CHAP. V. any other investment wonld be a, breach of duty, and the trustee would be personally liable for any loss. Grover, Daniels, and James, JJ., concurred. Hunt, Ch. J., Mason and Lott, JJ., contra.^ WILLIAM A. DICKINSON, Appellant. In the Supreme Court, Massachusetts, September 5, 1890. [Reported in L52 Massachusetts Reports, 184.] Appeal from a decree of the Probate Court, disallowing in part the account of "William A. Dickinson as trustee under a deed of trust. Hearing before C. Allen, J., who reported the case for the determina- tion of the full court. ^ G. Wells {J. JBurnes with him), for the appellant. D. W. Bond, contra. Field, C. J. The general principles which should govern a trustee in making investments, when the creator of the trust has given no specific directions concerning investments, have been repeatedly de- 1 Emelie v. Emelie, 7 Bro. P. C. 259 ; Trafford v. Boehm, 3 Atk. 440 ; Mills v. Mills, 7 Sim. .501 ; Howe v. Dartmouth, 7 Ves. 137, 150; Davies v. Hodgson, 25 Beav. 177 ; Hynes v. Kedington, 1 J. & Lat. 589, 7 Jr. Eq. 405 8. c. ; Randolph v. East Birmingham Co., Ala. '94, 16S. R. 126; 1 Mills, Ann. St. Colorado, (1891) p. 248, § 359; Tucker v. State. 72 Ind. 242 ; Smith v. Smith, 7 J. J. Marsh. 238 ; Clark v. Anderson, 13 Bush, 111, 119 ; Lathrop v. Smallej', 23 N. J. Eq. 192 ; Ashurst v. Potter, 29 N. J. Eq. 625, 632; Tucker v. Tucker, 33 N. J. Eq. 235; Re Mundy, 3 N. J. L. J. 185; Re Voorhees. 3 N. J. L. J. 211 ; Ackerman v. Emott, 4 Barb. 626 ; Adair v. Brimmer, 74 N. Y. 539 ; Mills v. Hoffman, 26 Hun, 594 ; Cook v. Cook, 34 Fed. Rep. 249 (New York law) ; Hemphill's App. 18 Pa. 304 ; Worrell's App., 23 Pa. 44; Pray's App., 34 Pa. 100; Ihmsen's App. 43 Pa. 431 ; 1 Brightly's Purdon's Dig. (12th Ed. 1894) p. 35, § 69 ; Simmons !». Oliver, 74 Wis. 633 Accord. See also Mattocks v. Moulton, 84 Me. 545, 554. The same rule has heen adopted by statute in some jurisdictions where, formerly, trustees had a wide latitude in investments. Bowen v. Wright, 39 Ga. 96 ; Moses v. Moses, 50 Ga. 9 ; Bell v. Sawyer, 59 N. H. 393. (Compare Kimball v. Reding, 31 N. H. 352 ; French v. Currier, 47 N.H. 88. By Lord St. Leonards's Act, 22 & 23 Vict. c. 35 § 32, trustees were authorized to invest in Bank of England Stock, Bank of Ireland Stock, or East India Stock. By the Trust Investment Act, 1889, the field of legitimate investment was enlarged so as to include Metropolitan Board of Works, or London County Council stock, preferred stock in railroad or water companies of Great Britain and Ireland, which for ten con- secutive years preceding had paid 3 per cent dividends on tlie common stock. Corpor- ation or County Council stock and Water Commission stock. By the Trustee Act, 1893, 56 & 57 Vict. c. 53, a tru.'(tee may invest in certain other securities, analogous to those mentioned in the Truet Investment Act of 1889. By 2 Tenn. St. (1871) § 3664, b. trustees may invest in "public stocks or bonds of the United States." — Ed. 2 The judge's report is omitted. — Ed. i->2^ //^.^ ^ -^-^ SECT. IV.] DICKINSON, APPELLANT. 479 clared by this court. Harvard College v. Amory,^ Lovell v. Minot,' Brown v. French,* Bowker i\ Pierce,'' Hunt, appellant.^ The rule in general terms is, that a trustee must in the investment of the trust fund act with good faith and sound discretion, and must, as laid down in Harvard College y. Aniory, at page 461, "observe how men of prudence, discretion, and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent y' disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested." It is said in the opinion in Brown v. French, ubi supra: "If a more strict and precise rule should be deemed expedient, it must be enacted hj the Legislature. It cannot be introduced by judicial deci- sion without working great hardship and injustice." It is also said, " The question of the lawfulness and fitness of the investment is to be judged as of the time when it was made, and not by subsequent facts which could not then have been anticipated." A trustee in this Commonwealth undoubtedly finds it difficult to make satisfactory in- vestments of trust property. The amount of funds seeking invest- ment is very large ; the demand for securities which are as safe as is possible in the affairs of this world is great ; and the amount of such securities is small, when compared with the amount of money to be invested. Trusts frequently provide for tlie payment of incouie to certain persons duriug their lives, as well as for the ultimate transfer of the corpus of the trust property to persons ascertained, or to be ascertained, at the termination of the trust; and a trustee must, so far as is reasonably practicable, hold the balance even between the claims of the life tenants and those of the remaindermen. The life tenants desire a large income from tiie trust propert}', but they are only entitled to such an income as it can earn when invested in such securities as a prudent man investing his own money, and Iiaving re- gard to the permanent disposition of the fund, would consider safe. A i)rudent man possessed of considerable wealtii, in investing u small part of his property, may wisely enough take risks which a trustee would not be justified in taking. A trustee, whose duty it is to keep the trust fund safely invested in productive proi)erty, ought not to hazard the safety of the property under any tt'inptation to make ex- traordinary profits. Our cases, however, show tiiat trustees in tliis Commonwealtli are pcruiitted to invest portions of trust funds in divi- dend paying stocks and interest bearing bonds of private business corporations, when the corporations have acquired, by reason of tiie amount of tiieir properly, and the prudent management of tlieir af- fairs, such a reputation that cautious and intelligent persons eoinmonly invest their own money in such stocks and bonds as permanent invest- ments.* 1 9 Pick. 446. « 20 Pick. 110. » 125 Miws. 410. ♦ 1.10 Mjuj-m. 262. ' 141 Mtuw. .'il.'j. 6 Ijtm.ir V. Micou, 112 U. S. 452, 114 U. S. 218 (Alabama Law); Foecuo v. Ljoft 4S0 DICKINSON, AI'PELLANT. [CHAP. V. The experience of recent years has, perhaps, taught the whole com- nnniitv that there is a greater uncertainty in the permanent vaUie of raihoad pro[)erties in the unsettled or newly settled parts of tiiis coun- try than was anticipated nine years ago. Without, however, taking iuto consideration facts which are now commonly known, and confining ourselves strictly to the evidence in the case, and the considerations which ought to have been present to the mind of tiie appellant, when in 3Iay and August, 1881, he made the investments in the stock of the Union Pacific Railroad Company, we think it appears that he acted in entire good faith, and after careful inquiry of many persons as to the value of the stock and the propriety of the investments. We cannot say that it is shown to our satisfaction that the trustee so far failed to exercise a sound discretion that the investments should be held to be wholly unauthorized. Still, it must have been manifest to any well informed person in the year 1881, that the Union Pacific Railroad ran through a new and comparatively unsettled country ; that it had been constructed at great expense, as represented by its stock and bonds, and was heavily indebted ; that its continued prosperity depended upon many circumstances which could not be predicted ; and that it would be taking a considerable risk to invest any part of a trust fund in the stock of such a road. In this case the whole trust fund appears, by the first account, to have been $16,200.05. On May 9, 1881, the trustee bought thirty shares of the stock of the Union Pacific Railroad Company at $119 per share, which, with commissions, amounted to $3,573.75. This is an investment of between one fourth and one fifth of the whole trust fund in this stock, and is certainly a large investment relatively to the whole amount of the trust fund to be made in the stock of any one corporation. After this, on August 16, 1881, he purchased twenty shares more at $123 per share, amounting with commissions to $2,475. The last investment, we think, cannot be sustained as made in the exercise of a sound discretion. Wliile we recognize the hardship of compelling a trustee to make good out of his own property a loss occa- sioned by an investment of trust property which he has made in good faith, and upon the advice of persons whom he thinks to be qualified to give advice, we cannot on the evidence hold that the trustee was justified in investing in such stock as this so large a proportional part of the property. It appears by the report of the single justice before whom the case was tried, that " the time has now come for a final distribution of said 55 Ala. 440, 452; Gray v. Lynch, 8 Gill, 403; McCoy v Horwitz, 62 Md. 183 ; Harvard Colleger. Amory, 9 Pick. 446; Lovell v. Miuot, 20 Pick. 116; Kininonth v. Brigham, 5 All. 270, 277 ; Brown v. French, 125 Ma.M which has been lost. I must dismiss the Huunnons with costs.' * Only tho opinion of the court is pivon. — Kn. ^ Tlif! moiK'V rciiiaitied on di-posit from M:iy, IRCO, to. July ITitli, IHVO, wlion tlio hnuk failed. 'I'll'; loss tlierehy ofcawioiicil :ini| tKl,.y, U'.i Mcav. 213; HRrnoy V. SaiindnrH, Ifi How. .Vl.') ; VVoodli-y' r. H.-llcy, I II N. Pa. n«0. If tli(! anionnt dppojiitcd in large, it xhuuld lio withdrawn without - Wi^/ ' • ^ • / ^^U. 482 IN KE ARGUELLO. [CHAP. V. In re ARGUELLO. In the Supreme Court, California, January 14, 1893. [Reported in 97 California Reports, 196.] Belcher, C.^ This is an appeal by the administrator of the estate of the decedent from an order of the Superior Court of San Diego County requiring him to pay to the creditors of the estate whose claims had been duly presented and allowed certain sums of money. The sum of money in controversy was $4,846.b0, which was received by the administrator for and on account of the estate, between July 5, 1891, and October 15, 1891, and deposited by him in the California Savings Bank, in the city of San Diego, in his own name. The court below found the facts to be as follows : — " That at the time said funds were deposited by said administrator in said California Savings Bank, said bank was reputed to be and was considered a safe and solvent bank and place of deposit, and was of good credit and standing, and was believed by said administrator to be solvent and safe ; that said deposit was made in the individual name " of the administrator, " without any designation or indication of his representative capacity, but said administrator had no other funds or account with said bank, and deposited such with that par- ticular bank for the express purpose of keeping the same separate from, and so that it would not be unnecessarily mingled with, his own property or individual funds." "That in depositing said funds in said California Savings Bank as aforesaid, said administrator acted in good faith." " That on the twelfth day of November, 1891, said California Sav- ings Bank became suddenly, unexpectedly, and wholly insolvent, sus- Darke v. Martyn, 1 Beav. 525 ; Gongh v. Etty, 20 L. T. Rep. 358 ; Lunham v. Brandell, 27 L. J. Ch. 179; Ricks v. Hroyles, 78 Ga. 610. But, as is implied in the principal case, a trustee having funds in his hands not immediately applicable to the purposes of the trust, may deposit them for a reasonable time in a bank, taking care to have the credit run to him in his fiduciary capacity, Atty-Gen. v. Randall, 21 Vin. Ab. .534 ; Rowth v. Howell, 3 Ves. Jr. 565 ; Adams v- Claxton, 6 Ves. 226; France v. Woods, Taml. 172; Dorchester r. Effingham, Taml. 279; Johnson v. Newton, 11 Hare, 160; Wilks i>. Groom, 3 Drew. 584; Fen wick v. Clarke, 4 D. F. & J. 240 ; Swinfen v. Swinfen, 29 Beav. 211; Re Marcou, 40 L. J. Ch. 537; In re Earl, 39 W. R. 107; Munnerlyn v. Augusta Bank, 88 Ga. 333 ; Norwood V. Harness, 98 Ind. 134; .Jacobus v. Jacobus, 37 N. J. Eq. 17 ; People v. Faulkner, 107 N. Y. 477, 488; Law's E.st., 144 Pa. 499; Ramsey v. McGregor, 1 Cincin. S. C. 327; (^)dd Fellows v. Ferson, 3 Oh. C. C. 84. The deposit may or may not draw interest, but if it is for a fixed time, it becomes an investment upon the credit of the bank ; and as such an investment is improper the trustee must make good any loss by reason of the failure of the bank. Baskin v. Baskin, 4 Lans. 90; Frankenfield's App. 127 Pa. 369, n. ; Baer's App., 127 Pa. 360; Law's Est., 144 Pa. 499 (semble). A trustee may properly remit money to a distance through the agency of a broker in good credit. Knight v. Plymouth, 1 Dick. 120. — Ed. i Only the opinion of the court is given. — Ed. v e sulli- cient.* . . . But whatever may be tlic rule elsewhere, tlu^ jippi-Uant insists that the rule in this State is declared in sec. 2236 of the Civil Code, and that that does not make him liable. The section refcrretl to reads as follows : — 1 Tho learned f'liiof romiiiiHHinnor lioroquotod nt gnrno lonulh from rummnnwoalth V. McAlister, 28 I'n. 4K0, Willi.itiiH c WillitimH. .')5 Win.'lOO, ;iiiil NiiIiikt r. Duinn, 108 Ind. 500. In the Willinins vnna l\u- court Hiiid: "To hold tho ndminiHlmlor nnxwcr- ablo in thiHCa«c Ih uiidnnMfiliy ;i ^r(!.it hanlHliiji ; Imt to exoncraff him fnun li.iliility is to onrourage tho mi.sm.inagi'm<.Mit of trimt funds and to open tho dour"" t>i fraudu fDnumcrahle against those whoso ago and woaknoss entitle them to the most rigid protection of tho law. 'Iho rnlo, thorcf< to, sli"uM not lio slackened, oven if the question were a new one, much lt,:'» in view of the aulhoritiu.i cited." — Ed. 484 EX PARTE CATllOllPE. [CIIAI'. V. '' Sec. 2236. A trustee who wilfully and unnecessarily mingles the trust property with his own, so as to constitute himself in appearance its absolute owner, is liable for its safety at all events." "We do not think this section was intended to change the rule gen- erally prevailing, or to limit liability under it; on the contrary, the section seems to be in entire accord with the general rule, and in effect to declare it in unmistakable terms. In our opinion the order appealed from should be affirmed. Vanclief, C, and Haynes, C, concurred. For the reasons given in the foregoing opinion, the order appealed from is affirmed.^ Fateksox, J., Garoutte, J., Harrison, J. i t Ex PARTE CATHORPE. In Chancery, before Lord Tiicrlow, C, May 28, 1785. [Reported in 1 Cox, Equiti/ Cases, 182.] Upon an application to lay out on a mortgage a sum of £3,000 in the hands of the Accountant General, belonging to the lunatic's estate, \" . 1 Walker v. Symonds, 3 Sw. 1, 66 ; Ditmar v. Boyle, 53 Ala. 169 ; Harward v. Robin- sou, 14 111. Ap. .560 ; Gilbert v. Welsch, 7,'j Iiul. 557 ; State v. Greeiisdale,106 Ind. 364 (criticising Richardson v. State, 55 Ind. 381); Naltner v. Dolau, 108 Ind. 500; Jenkins v. Walker, 8 Gill & J. 218; Coffin v. Bramlitt, 42 Miss. 194; Knowlton v. Bradlev, 17 N. H. 458 ; Baskin v. Baskin, 4 Lans. 90; Suinmersi;. Keyuolds, 95 N. Ca. 404; Morris v. Wallace, 3 Barr, 319 ; Draper v. Joiner, 9 Iluniph. 612; Lyell v. Ham- mond, 2 Lea, 378, 390 (semble) ; Williams v. Williams, 55 Wis. 300 ; Book v. Wilkinson, 78 Wis. 652 Accord. Atterberry v. McDuffee, 31 Mo. Ap. 603 ; (see State v. lioeper, 82 Mo. 57) ; Parsley V. Martin, 77 Va. 376 — Contra. A fortiori the tru.stee must answer for the solvency of the bank, where the trust money is blended with the trustee's individual account. Wren v. Kirton, 11 Ves. 377 • ■ Fletcher v. Walker, 3 Mad. 73 (semhle) ; Ma.ssey v. Banner, 4 Mad. 413, 1 J. & W. 241' 247 ; Robinson v. Ward, 2 C. & P. 59 ; McDonnell v. Harding, 7 Sim. 178 ; Pennell v. Deffell, 4 1). M. & G. 372, 392 ; Noble v. Hammond, 129 U. S. 65; De Jarnette v. De Jarnette, 41 Ala. 708 ; Henderson v. Henderson, 58 Ala. 582 ; Webster v. Pierce, 35 111. 158, 163; Drovers' Bank v. O'Hare, 18 111. Ap. 182; Clay v. Clay, 3 Met. (Ky.) "^ 548; Cartnell v. Allard, 7 Bush, 482; Norris v. Hero, 22 La. An. 605; Coleman v. ^ Lipscomb, 18 Mo. Ap. 443; .Jacobus v. .Licobu.s, 37 N.J. Eij. 17, 20; Re. Stafford, 11 Barb. 353; Prescott's Estate, 1 Tuck. 430; Shaw v. Banman, 34 Oh. St. 25; Morris i'. Wallace, 3 Barr, 319 ; Stanley's App. 8 Barr, 431 ; McAllister ?;. Commw., 30 Pa. 536,28 Pa. 480 ; Law's Est., 144 Pa. 499, .506 ; Allen v. Leach (Pa. 1894), 29 Atl. R. 1050; Mason v. Whitthorne, 2 Cold. 242; In re Hodges (Vermont, 1894) 28 Atl. R. 663 (overruling Barney v. Parsons, 54 Vt. 623) ; Vaiden v. Stubblefield, 28 Grat. 153. But see contra. Crane r. Moses, 13 S. Ca. 561. If a tru.«tee mixes specific money of the trust fund with his own coins or bills, and some of the mixed money is stolen, the loss will fall on the trustee, unless he can identify his own money among the coins or bills remaining. Bartlett v. Hamilton, 46 Me. 435 ; Shipp v. Hetlrick, 63 N. C. 329. — Ed. » SECT. IV.] EX PARTE CATHORPE. 485 Madocks produced several orders of the same nature, which had been made iu this very lunacy. But the Loud Chaxcellok said, that although he was perfectly convinced, by what was stated to him, that this security was perfectly good, yet he could not permit such a precedent to be made ; aud that he was aware that in former times the court had laid out the money not only of lunatics but of infants in this manner; but in latter times the court had considered it as improper to invest any part of the lunatic's estate upon a private security, and it would be a dangerous precedent to brealc in upon that rule ; and he therefore directed the money to be laid out iu the 8 per cent Bank annuities.^ First Mortgages of TJeal Estate. — Lord Ilarcourt in Brow-n v. Litton, 1 P. Wms. 140; Lord liaruwicke iu Knight v. Th mouth, 1 Dick. 120, 12G ; aud Lord Alvauley in Pocoek v. Redingtou, 5 Ves. 794, 800, tiiought trust fnmis might properly be invested in first mortgages of laud. But Lord Tliurlow's view to tlie contrary was generally approved in England. Widdowsou r. Duck, 2 Mer. 41)4 ; A'e Fust, 1 Coop, t- Cottenham, 157 n. (c) ; Norbury v. Norbury, 4 Mad. 121 ; Ex parte Ellice, Jac. 234 ; Ridgeway, 1 Hog. 309; Ex parte Johnson, 1 Moll. 128; 7iV Franklyn, 1 De G. & Sm. 528; Berry u. Marriott, 2 De G. & Sm. 491 ; Kaby v. Kidelialgli, 7 1). M. & G. 104. By Lord St. Leonards' Act, 22 & 23 Vict. c. 35, § 32, first mortgages ou real estate ■were made legitimate trust investments. In this country the same rule has generally been made without a statute. Hut a coutril)utory mortgage is not a ))roper investment under the Euglish statute. Webb v. Jrmas, 39 Ch. I). 660. Tiie mortgage of the franchise and tracks of ahorse railroad was lield to be improper for an investmeut in Judd V. Williams, 2 Dem. 404. Second Mortgages. — In several jurisdictions it is a breach of trust to invest in second mortgages. Gen. St. Conn. (1888) § 495; Maddocks i;. Moultnn, S4 Me. 545; Gilmore v. Tuttle, .32 N. J. Eq. 611, 36 N. J. Eq. 617 ; Porter f. Woodruff, 36 N. J. Kq. 174 ; Savage v. Gould, 60 How. Pr. 234 ; Re Petrie, 5 Dem. 352 ; Singleton v. Lowndes, 9 S. Ca. 465. There are dirin to the same effect iu Thomson i\ Christie, 1 Mac(|. 236, 238 ; Drosier r. Brcrcton, 15 Heav. 221 ; Lockliart r. l{.illy, 1 DefJ. & .1. 401, 476 ; Shcm.ld Society V. Aizlewooii, 44 Cii. D. 412, 459. Hut in Want r. Campain (Ch. 1). IS93) 94 Law Times, 385 (see also Norris v. Wright, 14 Beav. 291, 308) it wiis said that iuvestmeut in second mortgages w;w not ab.suliitfly )inihibi(ed. but that tlu^ Iruslce had the burden of overccjming tiie ])resumpti*s of such au invcslmont. See, to the same effect. Waring v. Waring, 3 Ir. Ch. .331, 337 ; Shuoy i-. Laita, 90 Ind. I3G; Whitney v. Marline, 88 N. V. .5.35, .5.39, .540; King v. M.-ickdlar. 109 N. Y. 215, 221. In lie Blauvelt's Est. 20N. Y. Sup. 119 and in Jack's Ap., 94 Pa. 369, investments in second mortgages were sanctioned. See also Hogarl v. Jackson, 4 Fdw. 718; Lechh'r's Ap. 21 W. N. C. (I'a.) .505. EyuiTAiu.K MoKKiAGKs. — A trustee is not [lerinilted to invest in e(|uitalile mort- gages. Webb V. Lcdsam, 1 K. & J. 385 ; Swallidd r. Nelson, W. N. (1H76) 255, J>KASEiioi,ii MoitTGAGKH. — Investment u|)on tlie security of Icnseliolds is a brea
  • , or in tho hon6.3 ; r<>nfl«rnstn/. When there \n a ) ; Howe v. Dartnioutli, 7 Ves. 72 ; Fe.irns v. Younji;. it Ven 549 ; Lichfield v. Baker, 2 Bcav. 487 ; Caldccott v. Caldecott. 1 Y. & C. C. C. .312 ; Bern. r. Dixon, 10 Sim. fi.'ir, ; Sutherland v. Cooke, 1 Coll. 49S ; Johnson v. .lohnson, 2 Coll 441 ; Piikup V. Atkinson, 4 Hare, ('(24; .MnrKan r. Morgan, 14 Heav. 72; Craij; r Wheeler, 29 L. J. Ch. .374 ; Re Lewellyn, 29 Beav. 171 ; Piiijreon v. Spencer, 16 \.. T Hep. 83; In re Shaw, 12 Kf|. 124; Tickner r. < ll Ch. I). 542 ; Macdonald v. Irvine. K Ch. D. 101 ; In re Smith, 48 L. .F. Cli. ao-'i ; Kin month r. BriKham, 5 All. 770; Minot v. Thomjmon, 106 M.nss. 5H3 ; Cnvenlioven i .Shuler, 2 Pai^e, 122; Williamson >•. Williamson, 6 Pai^e, 298 ; C.iirns c. Chauliort, '.i Paitje, 160; Spear v. Tinkham, 2 Barh. Ch. 211 ; Smith r. B.arham, 2 Dov. Kq. 420. .lones i\ SimmfiiiH, 7 Ired. Iv|. 178; Saunders v. Ifantjhfnn, K Ired. lv|. 217. But effect will of course ho given to an intention, to he gatiiored from the lanpiiag" of the giver, that the property should he enjoyed in n/jcrie. A largo number of cases in which the court refused to direct a conversion may ho found in l/owin. Trusts, l9thEd.) 319. — V.u. 492 BIIOWN V. GELLATLY. [CHAP. V. Income of the securities, just as if they bad been £3 per cent consols.* 1 understand the words of tlie will as amounting to the constitution by the testator of a larger class of authorized securities than this court itself would have approved of, and the court has merely to follow his directions, and treat the income accordingl}-, as being the income of authorized securities. Then comes the third question iu the case, the securities not ranging themselves under any of those mentioned in the last clause of the will. They appear to have been securities possessed by the testa- tor himself, but that, I think, makes no difference ; as they do not come within the class of authorized securities it was the duty of the trustees to convert them at the earliest moment at which they properly could be converted.'^ I do not mean to say that the trustees were by any means open to censure for not having converted them within tlie year, but I think that the rights of the parties must be regulated as if they had been so converted. I think the proper order to make is that which was made in Dimes a. Scott,^ followed by Vice-Chancellor Wig- ram in the case of Taylor v. Clark,* namely, to treat the tenant for life as entitled, during the year after the testator's death, to the divi- dends upon so much 3 per cent stock as would have been produced by the conversion and investment of the propert}' at the end of the year. This will involve a variation of the order under appeal as to those securities, since it proceeds upon a somewhat different footing, and aggregates the amount produced by conversion at the end of the year with the di%ndends produced during the year, which is not precisely in accoi'dance with Dimes v. Scott, and Taylor v. Clark. ^ 1 Wrey v. Smith, 14 Sim. 202 ; Mackie v. Mackie, 5 Hare, 70 ; Sparling v. Parker, 9 Beav. 524; Hubbard v. Young, 10 Beav. 20.3; Juhnstou v. Moore, 27 L. J. Ch. 453; Green v. Britten, 1 D. J. & S. 649 ; In re Chancellor, 26 Ch. Div. 482 ; In re Sheldon, 39 Ch. T>. 50 ; In re Thomas, '91,3 Ch. 482 ; Hemenway i;. Hemenway, 134 Mass. 446 Accord. — Ed. •^ Kirkraan v. Booth, 11 Beav. 273; Thornton v. Ellis, 15 Beav. 193; Blann y. Bell, 2 D. M. & G. 775, 5 De G. Sm. 658 ; Hood v. Clapham, 19 Beav. 90 ; Wightwick v. Lord, 6 H. L. C. 217, 228 (semble) ; Re Hill, 50 L. J. Ch. 551 ; Kinmonth v. Brigham, 5 All. 270; Ashurst v. Potter, 29 N. J. Eq. 625, 632 Accord. — Ed. 8 4 Rus.s. 195. * 1 Hare, 161. * See, in further confirmation of Dimes v. Scott, Morgan v. Morgan, 14 Beav. 72 ; Holgate V. Jennings, 24 Beav. 623; Re Lewellyn, 29 Beav. 171 ; Hume v. Richardson, 4 D. F. & J. 29 ; Allhusen v. Whlttell, 4 Eq. 295. —Ed. SECT. IV.] LOWSON V. COPELAXD. 49i LOWSON V. COPELAND. In Chancery before Lord Thurlow, C, March 17, 1787. [Reported in 2 Brown, Chancery Cases, 156.] Ann Barber made her will in 1765, and thereby gave the defendant an annuity of three pounds per annum for his trouble in receiving several rents of her real estate, and appointed him executor, making no disposition of the residue of her estate. In 1770, the plaintiffs filed their bill as next of kin of the testatrix, insisting that the gift of the annuity had turned the defendant into a trustee for them as to the undisposed surplus, and praying an account of all sums he had received, or might have received. The defendant, by his answer, contested the plaintiffs being next of kin, and put them to the proof of their relation- ship ; and, in case they were such, controverted his being turned into a trustee for them. The cause was heard before his late Honor in 1773, who decreed that the defendant was a trustee for the next of kin, and referred it to the Master to inquire whether the plaintiff's were the next of kin, and to take an account. In 1783 the INIastor made his report that the plaintiffs were the next of kin ; and, aniong otlier things, stated a bond, bearing date the 1st of May, 1761, by one Lumley, to the testatrix, for one hundred pounds, with which the Master charged the defendant. To this report the defendant ex- cepted, for that the Master iiad charged him with the £100 as received from Lumley, wiiereas he had not received it, although he had made various applications, and used due diligence to obtain payment of it. This exception coming on before the Lords Commissioners, they referred it to the Master to inquire whether the executor had taken proper steps for the recovery of tlie money, and wliether the debt was a good df))t, and ordered tlie defendant to call in tlie bonil. The Master reported, that the defendant had ajjplicd by an attorney to the obligor in the bond, to pay the debt, but had bnnight no action, or made any other application ; and that it did not appear whether the debt was or was not recoverable. It now came on again upon furdier directions. Mr. Ambler and JUr. Scott (for the defendant) insisted that the report did not charge the defendant witli sueii n neglect as ought to make him perHonally liab'e to answer th<' £100 not got in from the bond debt; that the defendant had made many npi)lieation8 to the obligor; and although he iiad not brouglit any action, that arose only from the fear of an useless expense. That the Master Iiad reported it a doubtful debt, and the plaintiffs had never called upon him to bring anv action ; and he was the rather indneed not to do so, as he con- sidered himself as acting upon his own money, having no idea that the annuity of £o per annum iiad turned him into a trustee ; cases having 494 LOWSON V. COPELAND. [CHAP. V. boon iloterminoil, that where a legacy is not given iu such a way as to oxchulo the intontiou of giving the whole, it has been hold not to turn the executor into a trustee, which he had been advised was the case with this annuity. But Lord Chancellor ordered that he should be liable for this £100 as having uot been got iu iu consequence of his ueglect.^ 1 Powell V. Evans, 5 Ves. 839 ; Caffrey v. Darby, 6 Ves. 488 ; Tebbs v. Carpenter, 1 Mad. 290; Mucklow v. Fuller, Jac. 198; Platel v. Cradock, C. P. Cooper, 481; Clough V. Bond, 3 M. & Cr. 490, 496 ; Cauey v. Bond, 6 Beav. 486 ; Bullock v. Wlieat- ley, 1 Coll. 130; Feinvick v. Greeuwell, 10 Beav. 412 ; Styles ;•. Guy, 1 Mac. & G. 422 ; Byrne v. Norcott, 13 Beav. 336 ; McGachen v. Dew, 15 Beav. 84 ; Wiles v. Gresham, 2 Drew. 258; Brittlebauk u. Goodwin, 5 Eq. 545, 550; Re Brogden, 38 Ch. Div. 546; Jn re Tucker, '94, 1 Ch. 724; Duffee v. Buchauau, 8 Ala. 27 ; lloyall v. McKcnzie, 25 Ala. 363 ; Oglcsby v. Howard, 43 Ala. 144 ; Muuden i: Bailey, 70 Ala. G3 ; Sanderson V. Sanderson, 20 Fla. 292; Whitney v. Peddicord, 63 111. 249 ; Waterman i'. Alden, 144 111. 90; Simpson v. Gowdy, 19 fnd. 292; State v. Gregory, 88 Ind. 110; Cross t;. Petree, 10 B. Hon. 413 ; Hunt v. Gontrura (Md. '94), 30 Atl. R. 620 ; Banks v. Machen, 40 Miss. 256 ; Kincheloe v. Priest, 89 Mo. 240 ; Booker v. Armstrong, 93 Mo. 49 ; Schultz V. Pulver, 11 Wend. 361, 3 Paige, 182 ; Holcomb v. Coryell, 11 N. J. Eq. 477 ; Poulson V. Johnson, 29 N. J. Eq. 529 ; Speakman v. Tatem, 48 N. J. Eq. 137, 50 N. J. Eq. 484 ; Cooley v. Vansyckle, 14 N. J. Eq. 496 ; Mills v. Hoffman, 26 Huu, 594 , O'Connor v. Gifford, 6 Dem. 71 ; Harrington v. Keteltas, 92 N. Y. 40; Wilson v. Lineberger, 88 N. Ca. 416 ; Long's Est., 6 Watts, 46 ; Johnston's Est., 9 W. & S. 107 ; Beckley's App., 3 Barr, 425 ; Will's App., 22 Pa. 330; Charlton's App., 34 Pa. 473; Sheffer's App., 46 Pa. 131 ; Be Strong's Est., 160 Pa. 13 (but see Keller's App., 8 Pa. 288); Gates v. Whetstone, 8 S. Ca. 244; Perry v. Wootou, 5 Humph. 524 (see James v. Wingo, 7 Lea (Tenn.), 148; Holmes v. Bridgraan, 37 Vt. 28; McCloskey V. Gleason, 56 Vt. 264 ; Rowe v. Bentley, 29 Grat. 756. In the principal case it did not appear whether the debt might have been recovered by the exercise of due diligence by the trustee. But the latter was properly charged with the full amount of the debt. For, as Mr. Justice Liudley clearly states the law, " When the cestui que trust has shown that the trustee has made default in the performance of his duty, and when the money which was the subject of the trust is not forthcoming, the cestui que trust has made out, in my judgment, a prima facie case of liability upon the trustee, and if the trustee desire to repel that by saying that if he had done his duty no good would have flowed from it, the burden of sustaining that argument is plainly upon the trustee." Re Brogden, 38 Ch. Div. 546, 572. See to the same effect Maitland v. Bateman, 16 Sim. 233, n. ; Edmunds v. Peake, 7 Beav. 239 ; East v. East, 5 Hare, 343; Clark v. Holland, 19 Beav. 262, 271; Grove v. Price, 26 Beav. 103; Hobday i-. Peters, 28 Beav. 603 ; Re Hurst, 63 L. T. Rep. 665, 668 ; Ball v. Ball, 11 Ir. Eq. 370; Alexander v. Alexander, 12 Ir. Ch. 1; Re Sanderson, 74 Cal. 199; Sherrell v. Shepard, 19 Fla. 300; Williams v. Pettigrew, 62 Mo. 471 ; Julian v. Abbott, 73 Mo. 580 ; Powell v. Hunt, 108 Mo. 507 ; Mitchell v. Trotter, 7 Grat. 136 ; Lovett v. Thomas, 81 Va. 245. Similarly a trustee may defeat a, prima facie case against himself by showing that more was probably to l)e realized on the claim by indulgence to the debtor for a time than by summary legal proceedings. Walker »,'. Symond.s, 3 Sw. 1, 71 ; Ratdiffe v. Winch, 17 Beav. 217 ; Iu re Earl, 39 W. R. 107 ; Waring v. Waring, 10 Gill & J. 127 ; Torrence v. Davidson, 92 N. Ca. 437 ; Neff's App., 57 Pa. 91 ; Dabney's App., 120 Pa. 345 ; Tanner v. Bennett, 33 Grat. 251. Compromise. — To justify a compromise of a claim by a trustee, the latter must shew that it was a reasonable settlement of a claim which in all probability could uot have been collected in full. Blue v. Marshall, 3 P. Wms. 381 ; Pennington v. Healey, 1 Cr. & M. 402 ; Wiles v. Gresham, 5 D. M. & G. 770; Moulton v. Holmes, 57 Cal. 337 , Siddall V. Clark, 89 Cal. 321, 323; Fridge v. Buhler, 6 La. An.-274; Berry v. Parkes, ..1^ SECT. IV.] ROBINSON V. ROBINSON. 495 Mr. Lloyd (for the plaintiffs) pressed that he might pay interest for the money admitted by the account to be in his hands, and all costs. Lord Chancellor refused charging him with interest, ^ but ordered him to pay the costs of establishing the next of kin. ROBINSON V. ROBINSON. In Chancery, before Lord Cranworth and Sir J. L. Knight Bruce, L.JJ., December 22, 1851. [Reported in 1 De Gex, Macnaghten and Gordon, 247] Lord Cran^wortu, L. J.' In the present case it will be observed the executors had the option of investing the trust money at their discretion on real or government securities, and in such a case Sir J. Leach held, in the case of Marsh v. Hunter,^ that trustees, by whose dtifault the money is lost, are chargeable, not with the amount of stock which might have been purchased, but only with the principal money lost, and of course, though the report is not so expressed, with interest thereon. That decision occurred in 1822. Four years later, namely, in 1826, occurred the case of Hockley v. Bantock,* before Lord Gifford. There the executors had a similar discretion of investing either on real or government securities ; and, on a bill seeking to charge them with balances improperly retamcd in their hands, Lord Gifford directed 11 Miss. 62.^); Long ;;. Sh-ackli-fonl, 25 Mis.s. .559, 5fiG ; WvmanV Apji. l.T \. H. 1«; In re Scott, 1 Kedf. 2.34, 2.'J6 ; Chouteau v. Snydam, 21 N. Y. 17'.> ; Hacut r. Iloywanl. 5 S. Ca. 441 ; Pool v. Dial, 10 S. Ca. 440; Alexauder r. Kelso, 59 Toiui .•til : I^iya v. Oglesby, 2.3 (Jrat. 674. A truHtee taking paymf^nt in Confederate monov in the Southern Stato.s durine: 'ho late war, wlien it W!w llif? fum-ncy of those StatoH. slioiilil he jirotcclrMl, it has hccn Hiiid. if he afted honestly. Caniplidl r. Miller, riHCa. ."UM ; WcslKrook r. Davis, JS [in 471 : Venable v. Cody, 68 Ca. 171 ; Davis v. Harinan, 21 Grat. 194. It is not the duty of a trustee to hrinp an action to rollcrt a claim wiit-n there is no rea.sonahle ground for hclievini; that anything can I)e re;i]ized therehy. Mown i\ Mont- gomery, 48 Ala. .'15.3 ; Pool's Case, 14 La. An. f.77 ; Rmitli c. Collcmer, 2 Deni 147 : Mitchell V. Trotter, 7 Grat. 1.30 ; Anderson r. Piercy, 20 \V. Va. 2H2, .327. I'nlesH h<> is indemnified as to the costs of the .action. Griswold v. Chandler, 5 N. II. 492; San- born a. Cioodhue, 28 N. H. 48 ; Hepburn v. Hepburn, 2 Ilnidf. 7J ; Ctley t). Unwlins, 2 Dcv. & R. Kr|. 4.38. — Ei). ' Tebbs V. Carpenter, 1 Madd. 290.299; Pulliam »• Pulliam, 10 F. U. 5.3 Armrd. Mut see rtmirn, ICx jinrte. Ogle, 8 Ch. 711, 710 ; Kppinger i: Canepa, 20 Kla. 202. 288 ; Scott V. Crews, 72 Mo. 201 ; Torbet «•. M. « 6 Madd. 295. « 1 Russ. 141. 496 ROBINSON V. ROBINSON. [ClIAP. V. an inquiry as to the price of £3 per cents at the several times when the bahiiiees ought to have been invested. Such an inquiry would liave been improper if the executors could not have been charged with the value of the stock ; and the case, therefore, is an authority that, in the opinion of Lord Gilford, they might be so charged. Notwith- standing this last case, however. Sir J. Leach adhered to his own view of tlie law, and acted on it in an unreported case of Gale v. Pitt at the Rolls on the 10th of May, 1830. Lord Gifford's authority had been followed by Lord Langdale in several reported cases, to which we were referred in the argument ; namely, "Watts v. Girdlestoue, * Ames v. Parkinson, ^ and Ouseley /'. Anstruther.* On the other hand Sir James Wigram, in Shepherd v. Mouls,* and my learned brother in Rees v. Williams,^ have refused to follow the authority of Hockley v. Bautock,® and have acted on the earlier case of Marsh v. Hunter.'' In this irreconcilable conflict of authority, it is absolutely necessary for us to look to the principles on which the doctrine rests. There can be no doubt but that, where trustees improperly retain balances in their hands, or, by want of due care, cause or permit trust money to be lost, they are chargeable with the sums so retained or lost, and with interest on them at £4 per cent.* 1 6 Beav. 188. 27 Beav. 379. 8 10 Beav. 456 * 4 Hare, .500. 6 1 De G. & S. 314. 6 1 Russ. 141'. ■^ 6 Madd. 295. 8 Necjiiqence. — Hicks v. Hicks, 3 Atk. 274; Rocke v. Hart, 11 Ves. 58; Ashburn- ham V. Taylor, 13 Ves. 402 ; Tebbs v. Carpenter, 1 Mad. 290 ; Holgate v. Hawortli, 17 Beav. 259 ; Johnson v. Prendergast, 28 Beav. 480; In re Evans, W. N. (1876), 205 ; Gilbert v. Price, W. N. (1878), 117. See also Gilroy v. Stevens, 51 L. J. Ch, 834 (3 per cent compound interest) ; Clapp v. Woodall, 38 Sol. J. 487 (3 per cent) Accord. Active Misconduct. — If the trustee is guilty of active mi,«conduct, as distin- guished from negligence, he is liable in England for interest at five per cent. Piety /•. Stace, 4 Ves. 620 ; Pocock v. Redington, 5 Ves. 794 ; Tebbs v- Carpenter, 1 Mad. 290, 306 (semble) ; Crackelt v. Bethune, 1 J. & W. 586 ; Bick v. Motley, 2 M. & K. 312 ; Munch V. Cockerell, 5 M. & Cr. 178, 220; Mousley v. Carr, 4 Beav 49, 53 ; Mayor v. Murray, 7 D. M. & G. 497 ; Burdick v. Garrick, 5 th. 233 ; Ex parte Ogle, 8 Ch. 71 1 ; Hooper v. Hooper, W. N. (1874), 174; Price v. Price, 42 L. T. Rep. 626; Re Jones, 49 L. T. Rep. 91. But see Newton v. Bennet, 1 Bro. C. C. 358 ; Perkins v. Baynton, 1 Bro. C. C. 375 ; In re Hilliard, 1 Ves. Jr. 90; Browne r. Southouse, 3 Bro. C. C. 107; Younge v. Combe, 4 Ves. 101 ; Dawson ik Massey, 1 Ba. & Be. 218; Attorney-General v. Alford, 4 D. M. & G. 843; In re Emmet, 17 Ch. D. 142; Fletcher v. Green, 33 Beav. 426; Vyse V. Fester, 8 Ch. 309, 337 (semble), (in which cases the misconducting trustee was charged with only 4 per cent interest). Originally an executor, who used for himself the funds of the estate in his charge, was not liable for any intere.'^t. Gro.svenor v. Cartwright (1679), 2 Ch. Ca. 21 ; Linch V. Cappy (1680), 2 Ch. Ca. 35; Bromfield v. Wytherly (1718), Prec. Ch. 505. But these cases were overruled in Ratcliffe w. Graves, 1 Vcrn. 196, 2 Ch. Ca. 152, s. c, and Corsellis v. Lake, 1 Vern. 197 n. (1). See also Child v. Gibson, 2 Atk. 603; Adams v. Gale, 2 Atk. 106. In this country the distinction between negligence and active misconduct has not generally prevailed. In each case the trustee is charged with simple interest at the SECT. IV.] E03INS0N V. ROBINSON. 497 It may also be true that, where trustees have in their hands money which they are bound to secure permanently for the benefit of their cestuis que trustent, then, in the absence of express authority or direc- tion to the contrary, they are generally bound to invest the money in the £3 per cents. This obligation is not the result of any positive law, but has been imposed on trustees by the court as a convenient rule affording security to the cestuis que trustent, and presenting no possible difficulty to the trustees. Suppose, then, that trustees have improperly retained in their hands balances which they ought to have invested in £3 per cents, either by reason of this general rule of the court, or because such a duty was expressly imposed on them by the terms of the trust, or have by neglect allowed such balances to be lost, what, in such a case, is the right of the cestuis que trustent ? In all such cases, or at all events in all such cases where there has legal rate. In re Thorp (U. S. D. C), 4 N. Y. Leg. Obs. 377 ; Bourne r. Maybin, 3 Woods, C. C. 724; Bryant v. Craig, 12 Ala. 354 ; Nunn v. Nunn, G6 Ala. 3.5 ; Eppiuger V. Canepa, 20 Fla. 262 ; Hough >: Harvey, 71 111. 72 ; Lehman v. Rothbarth, 111 111 185; Rochester f. Levering, 104 lud. 562; Hughes i-. Smith, 2 Dana, 251 ; Grigsby V. Wilkinson, 9 Bush, 96; Ringgold v. Ringgold, 1 Har. & G. 11 ; Comegys v. State, 10 Gill & J. 175 ; Smith v. Darby, 39 Md. 268 ; Gott v. State, 44 Md. 319 ;" McKim v. Hibbard, 142 Mass. 422 ; Moyer v. Fletcher, 56 Mich. 508; Judd v. Dike, 30 Minn. 380; Crosby y. Merriam, 31 Minn. 342; Ames v. Scudder, 83 Mo. 189, 11 Mo. Ap. 168; Knowlton i-. Bradley, 17 N. H. 458; Stark i-. Gamble, 43 N. H. 465; Bartlett v. Fitz, 59 N. H. 602, 503 ; Aldridge v. McClelland, 36 N. J. Eq. 288 ; Demarcst v. Dem- arest, 1 Johns. Ch. 508 ; Manning v. Manning, 1 Johns. Ch. 525 ; De Pcyster, Aj)p. 2 Wend. 77; Utica Co. v. Lynch, 11 Paige, 520; Garniss v. Gardiner, I Edw. 130; Thorn v. Garner, 42 Hun, 507; Lant v. Howard, 89 N. Y. 169; Cook i: Lowry, 95 N. Y. 103; Re Myers, 131 N. Y. 409 (But .xee Wilmerding v. MrKc.>ison, 103 N. Y. 329) ; Morgan v. Morgan, 4 Dem. 353 ; In re Barnes, 23 N. Y. Sup. 600; Sbipp i-. Hettrick, 63 N. Ca. 329; Armstrong v. Miller, 6 Oh. 118; In re McCall 1 Ashm. 357 ; Fox V. Wilcock.s, 1 Binn. 194 ; Say v. Barnes, 4 S. & R. 112 ; Lane'.s App., 24 I'a. 4S7 ; Landi.H i-. Scott, 32 I'a. 495 ; rennypackcrs Ap, 41 I'a. 494 ; Ilim.son'.s Aj)., 43 I'a. 431 ; Hess's Est., 68 Pa. 454; Conrad's Ai)p., 11 W. N. (Pa.) 521 ; Whitecar's Est., 147 Pa. 368; Black v. Blakoly, 2 McC. Ch. 1,10; Wright r. Wright. 2 McC. Ch. 185 ; Turney r. Williams, 7 Yerg. 173, 213; Cannon v. Ai>p('r.si)M, 14 Lea, 55.1; Murchison V. Payne, 37 Tex. 305; Reed v. Timmins, 52 Tex. 84 ; McCloskey v. Glea.son, 56 Yt, 264 ; Miller r. Beverley, 4 lien. & .M. 415 ; Cavendish v. Kloining, 3 Munf. 198 ; Ker r. Snead, 11 Montlily L. Rep. 217 ; Clirnliro)it to liiinsilf, xhould not be charged with any interest, oven though in fact he misapfdied tiie trust funehler, 9 II. L. C. 654 ; Inglis v. Beaty, 2 Ont. Ap. 4.53 ; In rr Iluikos, .13 Cli. I) .'>52 ; Moody V. Hemphill, 71 Ala. 169; Crowdcr v. Shackloford, 35 Miss. 321; Jonoe u Ward, 10 Yerg. 160. 32 498 ROBINSON V. ROBINSON. [CHAP. V. been an express trust to invest in £3 per cents, the cestuis que trustent have the option of charging the trustee either with tlie piincipul sum retained and interest, or with the amount of .1'3 per cents which would have arisen from the investment if properly made.^ The doctrine of the court where it applies this rule is, that tlie trustee shall not profit by his own wrong. If he had done what he was bound to do, a certain amount of £3 per cents would have been forthcoming for the ce.Htiiia (jue trustent. And therefore if called on to have sucii £3 per cents forthcoming, he is bound to do so ; just as, in ordinary cases, every wrong-doer is bound to put the party injured, so far as the nature of the case allows, in the same situation in which he would have stood if the wrong had not been done. All this is very intelligible.^ Again, suppose the trustee has not only improperly retained balances, but has lent or used them in trade. There the cestui que trust has the right, if it is for his interest to do so, to charge the trustee not with the sum i-etaiued and interest, but with all the profits made in the trade. ^ 1 Bate I'. Hooper, 5 D. M. & G. 338 ; Pride v. Fooks, 2 Beav. 430 ; Re Lasak, 20 N. y. Sup. 74 Accord. If a trustee improperly sells the trust securities and they rise in value he is account- able for the appreciation. Piety v. Stace, 4 Ves. 620, 622. — Ed. - See Baruey v. Saunders, 16 How. (U. S.) 535. ■^ Anon, 2 Ves. 630; Burden v. Burden, 1 J. & W. 134 (cited); Palmer v. Mitchell, 2 M. & K. 672, n. ; Docker v. Somes, 2 M. & K. 655 ; Willett v. Blanford, 1 Hare, 253 ; Wedderburn i;. Wedderburn, 22 Beav. 84 ; Townend v. Townend, 1 Giff. 201 ; Plockton V. Bunning, 8 Ch. 323, n. ; Barney v. Saunders, 16 How. 535; Whitney v. Peddicord, 63 111. 249 ; Ringgold r. Ringgold, 1 Har. & G. 11, 79, 80; Heath v. Waters, 40 Mich. 457 ; McKnight v. Walsh, 23 N. J. Eq. 136, 24 N. .1. Eq. 498 ; Schieffelin r. Stewart, 1 Johns. Ch. 620; Robinett's Ap., 36 Pa. 174; Norris's Ap., 71 Pa. lOG; Hazard w. Durant, 14 R. I. 25 Accord. In determining the profits made by a trustee the whole period during which he has nad charge of the fund must be considered. The beneficiary cannot take profits for a part of the time and interest for the rest of the time. Baker r. Disbrow, 18 Hun, 29. Compound Interest. — It was not formerly customary to allow comjiound interest against a trustee simply because he invested the trust funds in trade. Treves v. Town-shend, 1 Bro. C C. 384, 1 Cox, 50, s. c. ; Rocke v. Hart, II Ves. 58, 61 (semble) ; Ex parte Watson, 2 V. & B. 414 ; Heathcote v. Ilulme, 1 .J. & W. 122, 134 (semble); Brown v. San.some, McClel. & Y. 427; Sutton v. Sharp, 1 Iluss. 146; Moors v. I)e Bemales, 1 Russ. 301; Atty.-Gen. v. Solly, 2 Sim. 518; Docker v. Somes, 2 M. & K. 655; Mou.'. Townend, I Giff. liHI ; In re Emmet, 17 Ch. I). 142 (flislingnishing Wilson r. IVake, 3 Jur. N. 8. 155, and AmiH.M v. Ilall, 3 Jur. N. h. 584) ; Rowan r. Kirkpatriik, 14 III. 1 ; Bond v. Lockwood, .33 III. 212- Ilnghos v. People. Ml III. 457; Clemens r. Cald- well, 7 B. Mon. 171 ; Voorhess v. Stoolhoff, 6 llalst. 145 ; I'crrino r. IVtIy. 34 N. .1. Kq. 193; English v. Harvoy, 2 Rawle, 305; Bowles v. Drayton, I Des». 489; Edmonds r. Crenshaw, Harp. Eq. 224. Ijisoliifliiurrn/ an order of Court. — Compound interost in also given whore tlin trustee di.'tregards an order of court directing jwiyment. Walrond r. Walrond, V'J Beav. 586. — Ei>. > See Lcwin TmstH (5th Eng. ed.), 227, 276-27H; Williams v. I'owell, 15 Beav. 461 ; Schieffelin »■. .Stewart, 1 .Johns. Ch. 620; 2 Story Eq. Jnr. § 1277; Myers r. Myers, 2 M'Coril, 214, 266; Diffcndcrffer v. Winder, 3 Ilar. & G. 311 ; per Wei!.'*, J., in Marsli V. Rcnton, 99 Mass. 135; Trull i-. Tnill, 13 Allen, 407; Blauvelt r. Ackerman. 5 C. E. Green (N. J.), 14«, 140; Flill Trii»tce« (.3d Am. ed.), .Mb and note; Staat* v. Bergen, 2 C. E. Green (N. J.), 554, 562, 563. 500 ROBINSON V. KOBINSON. [ciIAr. V. But the grounds on which, in all these cases, the right of election iu the cestui que trust rests, wholly fail in a case where a trustee, having an option to invest either in £3 per cents, or on real security, neglects bis duty and carelessly leaves the trust funds in some other state of investment. In such a case, the cestui qtie trust cannot say to the trustee : If you had done your duty I should now have had a certain sum of £3 per cents, or the trust fund would now consist of a certain amount of £3 per cents. It is obvious that the trustee might have duly discharged his duty, and yet no sucli result need have ensued. Where a man is bound by covenants to do one of two things, and does neither, there in an action by the covenantee, the measure of damage is in general the loss arising by reason of the covenantor having failed to do that which is least, not that which is most benefi- cial to the covenantee ; and the same principle may be applied by analogy to the case of a trustee failing to invest in either of two modes equally lawful by the terms of the trust. It was contended at the bar that, in such a case, the trustee has by his neglect lost his right of electing between the two modes of investment; that he was always bound by the trust to exercise his dis- cretion in the mode most beneficial for the objects of the trust ; and that, having omitted to do so at the time when the option was open to him, he can no longer do it when he is called to account for his neglect, and when he can no longer exercise an unbiassed and impartial option. The fallacy of this argument consists in assuming that, in the case supposed, the trustee is called on to exercise any option at all. He is not called on to exercise an option retrospectively; but is made re- sponsible for not having exercised it at the proper time, for not having made one of two several kinds of investment. And a reason for his being in such case chargeable only with the money which should have been invested, and not with the £3 per cents which might have been purchased, is, that there never was any right in the cestui qtie trust to compel the purchase of £3 per cents. The trustee is answerable for not having done what he was bound to do, and the measure of his responsibility should be what the cestui que trust must have been en- titled to, in whatever mode that duty was performed. The ground on which Lord Langdale proceeded in the several cases before him appears to have been that when the trustee has failed to discharge his duty in either of the ways which were open to him, the cestuis que trustent may then exercise an option which certainly did not belong to them by the terms of the trust: i. e., that if the trustee has failed to exercise his option, then the right of election passes to the cestuis que trustent, although not given to them by the instrument creating the trust. But on what foundation does this supposed right of the cestuis que trustent to exercise such an option rest? No such right can be derived from the principle that the cestuis que trustent are entitled to compel the trustee to do what he was bound to do, for he was not bound to purchase £3 per cents. Nor from the SECT. IV.] ROBINSON V. KOBINSOX. 501 principle that the}' may follow the trust funds into their actual state of investmeut, or charge a higher rate of interest in consequence of such investment, for the foundation of the complaint is, that the funds have not been invested at all. The only plausible foundation for the doctrine which occurs to us is this: The trustee was bound to exercise his option not capriciously, but in the mode likely to be most beneficial to the cestuis que trustent. And then* interests appear m the result to be best served by requiring an investment in £3 per cents. But this reasoning seems founded on a fallacy. The selection of the £3 per cents is thus made to depend not on any option in their favor which the trustee was originally bound to exercise ; but on the acciilent of their subsequent rise in value, a principle of decision from which, with all deference, we differ. If such a principle were to be applied, then, as it was well put at the bar, if in the present case there had been a discretion to invest in railway shares, the cestuis que trustent might perhaps now fix on the shares of some particular railway which have risen very highly in value, and say the investment might have been and so ought to have been, on that particular security. On the whole, therefore, we cannot discover any such right of option as is contended for in the cestuis que trustent^ not on the ground of their being entitled by the terms of the trust to compel the trustee to make an investment in £3 per cents, for no such obli- gation was imposed on him ; not on the ground of their being en- titled to adopt or insist on any actual investment, for no investment was made ; not on the ground of any obligation on the part of the trustees to select the £3 per cents as the most beneficial mode of investment, for the advantage of the £3 per cents arises from their accidental and subsequent rise in value, and not from any necessary superiority at the time when the investment ought to have been made.* 1 Knott V. Coffee, 16 Beav. 77 Accord. See Andrew v. Schmitt, 64 Wis. 664. — Ed. 502 JONES V. LEWIS. [CIIAP. V. SECTION V. The Duty of Custody of the Trust-res. MORLEY V. MORLEY. In Chancery, before Lord Finch, C, February 15, 1G78. [Reported in 2 Cases in Chancery, 2.] The defeudant was trustee for the plaintiff, an ii\fant, and received for liim £40 in gold ; a servant of the defendant living in the honse with him robbed his master of £200, and the £40 out of his house. The robbery, viz., that the defendant was robbed of money was proved; the sum of £40 was proved by only the defendant's oatlj. Lord Chancellor. He was to keep it but as his own, and allowed it on account ; so in case of a factor ; so in case of a person robbed, for he cannot possibly have other proof. ^ JONES V. LEWIS. In Chancery, before Lord Hardwicke, March 18, 1750. [Reported in 2 Vesey, 240.] A decree had been against defendant's husband (to whom she was administratrix) for a general account of assets, and for payment of the balance. Exception by defendant to the report ; for that certain goods, which had been delivered by her to her solicitor, and offered to plaintiff, liad been since stolen from her solicitor ; for which she therefore was not accountable ; that thej' came into her hands in nature of a trustee, who kept them as his own, and was robbed thereof, and should not be* responsible. Coggs v. Bernard,^ Morely v. Morely,^ and the doctrine in Southcot's case,* long looked on not to be law. E con. Plaintiff is not answerable for any loss by means of de- fendant's negligence ; for she delivering the goods to her solicitor was 1 Jobson V. Palmer, '93, 1 Ch. 71 ; U. S. v. Thomas, 15 Wall. 337, 343 ; Newsom v. Thornton, 66 Ala. 311 (semble) ; State v. Meagher, 44 Mo. 3.56 ; Fudge v: Durn, 51 Mo. 2C4 ; Stevens v. Gage, 55 N. H. 175 ; Furman v. Coe, 1 Cai. Cas. 96 ; Carpenter v. Car- penter, 12 R. I. 544 ; Mikell v. Mikell, 5 Rich. Eq. 220; McKnight v. McKnight, 10 Rich. Eq. 157 Accord. But if a trustee negligently fail to put the trust property in a reasonably safe place, he is liable if the property is subsequently stolen. Cornwell v. Deck, 8 Hun, 122. See Lehman i;. Robertson, 84 Ala. 489. — Ed. 2 Lord Ray. 909. 3 2 C. C 2. * 4 Co. 83. SECT, v.] JONES V. LEWIS. 503 a voluntary act, which she had no occasion to do, but should have kept them in her own hands. Though persons come by right of executor- ship or representation to the possession of goods, they are not em- powered to entrust them to another ; nor ought she to have detained * them after the decree, which had determined the right ; they are kept , therefore at her peril. i Lord Chakcellor. I will now consider this case as if the robbery had been without any tender of the goods at all to the plaintiff. It is certain, that if bailee of goods, against whom there is an action of account at law, loses the goods by robbery, that is a discharge in an action of account at law; and it is proved (and, I think, reasonably), that if a trustee is robbed, that robbery properly proved shall be a dis- charge, provided he keeps ihem so as he would keep his own. So it is as to an executor or administrator, who is not to be charged further than goods come to his hands ; and for these not to be charged, unless guilty of a devastavit ; and if robbed, and he could not avoid it, he is not to be charged, at least in this court. How it would be at law I know not ; for I know no case of that at law.^ The defendant is administratrix : supposing these goods had been in her own custody, anil she had beeu robbed, I am clear of opinion, if that fact be made out (which can only be by circumstances, as it is probably made out here), she ought to have been discharged of these goods ; and that notwithstanding no tender thereof ; for that was a superabundant act ; for it is a decree against her husbuud not for delivery of the goods, but for a gen- eral account of assets, and nothing directed to be paid but what was found on the balance. The only doubt then is, that they were not lost out of her custody, but her solicitor's, where they were put by her for a particular purpose. I do not know that a bailee, executor, adminis- trator, or trustee, are bound to keep goods always in tlicir own hamls. They are to keep them as their own, and take the same care; if there- fore a man lodged trust-money with a banker, if lost in many cases the court has disciiarged the trustee, especially if lost out of the bank- er's hands by rol)bery. In the present case what has been done is, what she would have done witii her own ; leaving tliem- with her solici- tor in order to be delivered to plaintiff when proper so to do; and why might she not do that? It is the same as if they had been in iier own custody; and Iht-rc is no pretence that they were collusivcly put into the hands of her solicitor. It would be too hard to charge her witli these things lost; this exception theref(jre must be allowed." 1 ' See frofwe v. Smith. 7 Kn«t, 2\r,, 2.')H per Liml Kllf-ntKironph. — F.it. 2 Haw V. fiitt'T^, '.t Hinp. 9fi; Jnli »■. J..li, f'h. 1). .'ifiS ; Jotmnn >■. I'lilmrr. 'M, \ <^h 71 ; Mrf'ahe v. F-.wl<'r. «4 N. Y. .114 ; f'arpenter u. Carpenter, 12 K. I. r)44 ; McKuiglit V. McKiiight, 10 Kirli. Kq 1.^7 Accord. — Ki>. 504 EX PARTE OGLE. [CHAP. V. Ex PARTE OGLE. In re PILLING. In Chancery, before Sir Wm. James, and Sir G. Mellish, L. JJ., May 30, 1873. [Reported in Law Reports, 8 Chancer i/ Appeals, 711.] In this case there were two appeals from a decision of the Judge of the County Court at Manchester. The question in dispute arose under a deed of assignment dated the 21st of October, 1864, by which David Pilling, a leather factor at Manchester, assigned all his property to Edward Smith, as a trustee for his creditors. The deed was assented to by the requisite majority of creditors, and was registered under the 192d section of the Bank- ruptcy Act, 1861 (24 & 25 Vict, c 134). Mr. Ogle and other creditors charged the trustee with negligence and mismanagement of the estate, and claimed to surcharge him in the accounts which he had rendered in several particulars, and the charges were referred to the registrar to report on the facts. The effect of his report, dated the 7th of May, 1872, so far as material to the present appeal, was as follows : — Item 1.^ As to wine sold to the debtor or allowed to remain in his hands. The trustee discovered on the 19th of November, 1864, that there were 519 bottles of wine and 84 of brandy in the debtor's possession unaccounted for. The trustee instructed his solicitor, Mr. Simpson, to take legal steps for the recovery of the property. On the 3d of May, 1865, the value of the wine and spirits amounted to about £130. The trustee made several written and personal appli- \ cations to his solicitor to recover the property ; but no legal steps were J taken. Most of the stock was consumed by the debtor. In August, il 1866, he executed another deed of composition with his creditors for Sd. in the pound. Mr. Simpson's managing clerk stated that the reason why more ac- tive measures were not adopted was that Mr. Simpson believed that the debtor intended eventually to paj' for the wine, and that he wished to treat him in a friendly spirit and not hostilely. The charges arising out of the report were brought before the Judge of the County Court, and his Honor made an order to the following \ effect on the items which formed the subject of appeal : — X Item 1. That the trustee should be surcharged with £130 as the \ value of the wine and spirits, with interest at £5 per cent from the 3d of May, 1865. 3Ir. DeGex, Q. C, and Mr. Baglej/, then opened the cross ap- peal : — ^ The report of the case on the other items is omitted. — £d. ^ SECT, v.] FIELD V. FIELD. 505 As to item 1 : The trustee was not to blame in permitting the wine to remain in the debtor's possession. He did all that he could by placing the matter in the solicitor's hands. It is very doubtful whether the court, under the Act of 1861, had power to order a debtor to give up property which he kept possession of. At all events there is no authority for charging the trustee with interest on the value of the wine. A trustee is never charged with interest unless he has himself possessed and used the property. Tebbs v. Carpenter.^ In Grove v. Price ^ no interest appears to have been charged, although the money was clearly lost by the trustee's negligence. Sir William James, L. .J. It appears to me that this was not merely a debt, but a deliberate breach of trust. No proceedings were taken against the debtor because he was a friend of the solicitor. The County Court Judge was, in my opinion, right in charging the trustee, not only with the value of the wine but with interest, on the groun that it was a breach of trust. Sir G. Mellish, L. J., concurred.* FIELD V. FIELD. In Chancery, before Kekewich, J., December 1, 1893. [Reported in Law Reports 1894, 1 Chancery, 425.] The plaintiff, Joshua Field, tenant for life of a trust fund investcvl in the name of the defendants, the trustees, on a mortgage of a build- ing estate, moved for an injunction to restrain the defendants from per- mitting the title deeds to remain in the cnstmly of their Kolicitors, or, unless the deeds were depo.sitcd l)y the (U'fendants at a bunk in their joint names, from permitting the same to remain in the custody of any person or persons other than the defendants or one of them.* Kekewicii, J. This motion raises a (jucstion of practical impor- tance, and one of extreme; interest to solicilors, and Htill more to those numerous clients of theirs who are trustees. ,My lirst inclina- tion was to say that a queHtion of such a vast importance must he carefully considered, and that it would not be right to express an opinion upon it until after consideration, and in langii.age cirefully weighed ; but further discussion has convinced me that I ought to dis- pose of this motion, not as dealing with an abstract (pieHtion, but rather with reference to the circumstances of this particular case, instead of laying down any general rule. I have before me an aUi- davit of four gentlemen with regard to the convenience of the deposit 1 1 Madd. 290. " 20 Rcav. \(V\. " Harrison v. ATock, 10 Ala. IS.*!. K> A)a. filfi Armul. — Kn. ♦ The Btalenient of facts is abridged, and the arguments omitted. — Ed. 506 FIELD V. FIELD. [CIIAP. V. of trust decd° with solicitors aud the practice of the profession. These four gentlemen stand high in the profession, and it would be difficult to find four others better qualified to depose as to the practice and the convenience of business ; but they and the notice of motion alike seem to me to evade what, to my mind, is the real point. A comparison has been made between the deposit of deeds in a solicitor's office aud the deposit of them in a bank. The question is not whether the trust deeds may be conveniently deposited in a solicitor's office, or in a bank, or anywhere else, but whether the deeds ought to be under the personal control of the trustees. If solicitors are prepared to make in their own office, or elsewhere, arrangements for depositing trust deeds, so that they may be under the control of trustees, I can- not myself see that this is open to any objection, and the suggestion as to keeping the deeds at a bank has not much to do with the case, aud only introduces confusion. The general principle, in my opinion, is that trustees must have their muniments of title, as well as then- securities, under their own control. I have held in one case some time ago, Webb v. Jonas, ^ that that this was enough to prevent trustees investing on a contributory first mortgage, because trustees investing on any particular mortgage security are bound to have the trust money and the security in their own names, and if the money and the security are in the names of others they are not fulfilling that obligation. The same thing applies to documents and deeds in their possession. They are intrusted with the custody of them, and they are bound within reasonable limits to see that the deeds are kept in a safe place, and that no one else can take them away. But to that obligation there must be reasonable limits. In order to realize the trust estate, the deeds must be in the custody of the solicitor to the trustees. He has to make abstracts of them, to make an examination of the deeds abstracted, and, if the property is sold in lots, the purchasers must have the opportunity of examining the deeds with the abstracts, if they wish, and even a second and a third examination may be necessary before completion. It would be a monstrous thing to say that the trustees have to keep the deeds all that time in a box with perhaps three or four keys, so that if any purchaser wishes to consult the deeds all the trustees will have to attend in person. That strikes one immediately as showing that reasonable limits to the trustees' obligation should be applied. In the present case I have the trustees of a will, having their trust fund invested on mortgage. It happens that the tenant for life under the settlement is the mortgagor, but that is immaterial for the present purpose. The mortgaged property is a building estate in course of development ; we all know what that is. From time to time building agreements have to be prepared and leases granted, and the deeds have to be consulted in order to see, for instance, that the parcels are all 1 39 Ch. D. 660. SECT, v.] HELD V. FIELD. 507 right, or that the powers have been properly observed, or that the boundaries of a plot in a second intended lease do not overlap the boundaries in the first, and so forth. It is practically impossible to deal with such questions unless the solicitor to the ti"ustees has the deeds. On the other hand, there is possible danger in that course. Rules are made not only for the guidance of solicitors who are honest, as in the overwhelming majorit}' of instances they are, but also with reference to dishonest solicitors, of whom, unfortunately, there are some. It is extremely ditiicult to lay down any general rule, and to say where any general rule may be departed from. In my opinion it comes to this, — that the solicitor may do what is reasonable and may advise the trustees as to what is reasonable. If there is a trust shut up for years, as often happens, and there is nothing in it to be done, 1 do not see why the deeds should not be locked up in a box in a bank or a safe deposit, and the trustees keep the keys, and that is the proper course to pursue. If, on the other hand, they are wanted from time to time, I do not think the trustees are acting unreasonably in giving their solicitor power to do what is right and necessary for the despatch of business. If the particular business comes to an end and there is no further occasion to refer to the deeds, then they can be put into a safe place. I am now referring to title-deeds only. With regard to bonds and certificates payable to bearer, I have not the slightest doubt that they ought not to be under the control of a solicitor, or any other agent.* The trustees are responsible for them, and they must keep them, not necessarily in their own custody, but in some place where they cannot be got at without the consent of the whole body. I am not prepared to make any order on the motion ; but the matter has been fairly argued, and therefore I make no order, except that the X)st3 of the motion are to be costs in the action. 1 Matthews 1-. Brice, G Beav. 239 Accord. — Ed. '2^- '^ ^vvW J<. DOS MORTIMER l\ IRELAND. [CHAP. V. SECTION VI. The Duty not to Delegate the Trust to Another. ANONYMOUS. [Reported in 3 Sivanston, 79, n. (a).] Sir J. Jekyll cited a late case at the Rolls, where one who was a trustee for a woman and her children did, with the woman's consent, assign his trust to another who was guilty of a breach of trust, and the first trustee decreed to make satisfaction, because trustees cannot divest themselves of their trust at their pleasure.^ MORTIMER V. IRELAND. In Chancery, before Lord Cottenham, C, July 29, 1847. [Reported in 11 Jurist, 721.] Lord Chancellor.'^ The argument amounts to this, that the execu^ tor of a trustee is of right a trustee. Whether the property is real or personal estate is no matter, for suppose a man appoints a trustee of real, and personal estate simpliciter, adding nothing more, this can- not make his representative a trustee. The case before the Master of the Rolls * was quite different, for there the court proceeded on the intention manifested, that the trust should be performed by the as- signs of the survivor. The property may vest in the representative, but that is quite another question from his being trustee. The testator may select the heir to succeed to the trust, but he only can do so. Here there are two persons appointed trustees ; both die ; thus there is no trustee, and it is for the court to appoint new ones. The testator having given no indication of intention, the court must refer it to the Master. The decree of the Vice-Chancellor is right in its form. The appeal must be dismissed with costs.'* 1 Hardwick v. Mynd, 1 Anst. 109 ; Adams v. Clifton, 1 Russ. 297 Accord. — Ed. 2 Onlv the opinion of the court is given. A testator appointed A. and B. his ex- ecutors and trustees, but made no mention of their heirs or executors. A., the surviv- ing trustee, devised the trust property to C, his executor. The question was whether C. could execute the trust originally vested in A. and B. — Ed. 8 Titley v. Wolstenholme, 7 Beav. 425. * In re Ingleby, L. R. 13 Jr. 326 (where the heir of the original trustee was not permitted to perform the trust) Accord, — Ed. SECT. YL] COOKE V. CRAWFORD. 509 COOKE V. CRAWFORD. In Chancery, before Sir Lancelot Shadwell, V. C, July 12, 1842. [Reported in 13 Simons, 91.] Bill by the devisee of "William Hall the youuger, for specific per- formance of a contract of purchase.^ The Vice-Chancellor. I am of opinion that the demurrer in this case must be allowed ; for it is plain that the persons whom the sur- viving trustee has thought proper to appoint to execute the trusts of the testator's will, are persons to whom no authority was given for that purpose by the testator, and there is no case in which a person not mentioned by the party creating the trust has been held entitled to execute it. I have always uuderstood, ever since the point was decided in Haw- kins V. Kemp '^ (or, rather was, as the judges said in that case, pro- perly abandoned by the defendant's counsel as not capable of being contended for), that, where two or more persons are appointed trustees, and all of them, except one, renounce, the trust may be executed by that one. That decision, if it may be so called, has been approved of by Lord Eldon and other judges. Now, in the present case the testator has devised his estates in the county of Lincoln to his son, AVilliam Hall, and his friends, James Burkitt and William Woolley, upon trust that they and the .survivors or survivor of them or the heirs of such survivor, should, as soon as conveniently might l)e after liis decease, but at their discretion, sell liis estates either by pul)lic auction or by private contract, and either altogether or in parcels, for such price or prices as they should con- sider the value tliereof ; and, for the purpose of effecting any and every such sale, he has enipowertMl liis trustees and their heirs to enter into and execute all necessary contracts, conveyances, and other assurances to or in favor of the purchaser or purchasers of bis estates. Tlien he proceeds to declare that the written receipt or receipts of tlie trustees, or of the survivors or survivor of them, or the heirs, executors, or administrators of such smvivor, ."hall I)e good discharges to the jnir- chasers. It is observable that the testator has not used the word 'assigns* either in the clause in which he has created tlie trust for sale or in either of the two clauses that follow it, in which he points out tlie machinery by which the sale is to be effected. He does not inlrodiice that word until he begins to speak of something that is to be done after the sale has taken place, that is, until lie declares llie trusts upon which the proceeds of the sale are to be luM. Therefore, it iH plain that when William Hall, who, by the disclaimer of iJurkitt and Woolley, ' Only tho oj)iuion of the court is given. — Ei>. 2 3 Ea.st. 410. 510 COOKE V. CRAWFORD. [cHAP. V. became the sole trustee, thought fit to devise the legal estate that was vested iu him, he did au act which he was not authorized to do. And here I must enter my protest against the proposition which was stated iu the course of the argument that it is a beneficial thing for a trustee to devise an estate which is vested in him in that character, ^ly opinion is tliat it is not beneficial to the testator's estate that he should be allowed to dispose of it to whomsoever he may think proper ; uor is it lawful for him to make any disposition of it. He ought to per- mit it to descend, for, in so doing, he acts iu accordance with the devise made to him. If he devises the estate, I am inclined to think that the court, if it were urged so to do, would order the costs of get- ting the legal estate out of the devisee, to be borne by the assets of the trustee.^ I see no substantial distinction between a conveyance by act inter vivos^ and a devise ; for the latter is nothing but a post mortem conveyance ; and, if the one is unlawful, the other must be unlawful. It appears to me that, as my decision in Bradford v. Belfield ^ has been acquiesced in, the question raised by the demurrer iu this case is concluded by that decision : but, if it is not, then the authority of Townsend v. Wilson^ is binding on the point. And my opinion is that the plaintiffs, who may be properly called the assigns of William Hall, the sole acting trustee of the testator's will, are not the persons to ex- ecute the trusts of that will : consequently, I shall allow the demurrer.* 1 But see Wilson v. Bennett, 5 De G. & Sm. 475, 479. See further the last paragraph of note 4 on this page. — Eo. 2 2 Sim. 264. 3 i b. & Ad. €08, and 3 Madd. 261. * If property is vested in A. and his heirs, upon a special trust, the heir of A. is competent to execute the trust. Re Morton, 15 Ch. Div. 143; Re Cunningham, '91, 2 Ch. 567. But the trust cannot be executed by an assign of A. under a conveyance inter vivos. Y. B. 15 Hen. VII. 11-22 ; Keilw. 43, b., Sugd. Powers (8th ed.) 893 s. c. ; Y. B. 19 Hen. VIII. 9-4; Bradford v. Belfield, 2 Sim. 264; Titley ?;. Wolstenholme, 7 Beav. 425, 434-436 ; Hall v. May, 3 K. & J. 585, 589 ; Whittlesey v. Huglies, 39 Mo. 13; Pickett v. Jones, 63 Mo. 195, 199. See also Wilson u. Towle, 36 N. H. 129; Suarez v. Pumpelly, 2 Sandf. Ch. 336 ; Seely r. Hills, 49 Wis. 473. Nor by a testa- mentary assign. Cooke v. Crawford, supra ; Wilson v. Bennett, 5 De G. & Sm. 475 ; Hall y.May, 3 K. & J. 585, 587 ; Stevens v. Austen, 3 E. & E. 685; Druid Co. v. Oettinger, 53 Md. 46, 59. Cooke v. Crawford, supra, was rejected as an authority by Sir George Jessel, M. R., in Osborne v. Rowlett, 13 Ch. D. 774. But in In re Mor- ton, 15 Ch. Div. 143, the Court of Appeal (.James, Bramweli, and Baggallay, L. JJ.) was inclined to stand by Cooke v. Crawford. And this inclination was followed in Ireland in In re Ingleby, L. R. 13 Ir. 326. If, however, property is vested in A., his heirs and assigns, upon a special trust, a devisee of A. may, as a testamentary assign, execute the trust. Titley v. Wolsten- holme, 7 Beav. 425 ; Ashton v. Wood, 3 Sm. & G. 436 (semble) ; Hall v. May, 3 K. & J. 585; Whittlesey v. Hughes, 39 Mo. 13 {semble). But an assign by act inter vivos cannot take the office of trustee. Titley v. Wolstenholm?, 7 Beav. 425, 4.34-436. Ina.smuchas by the Conveyancing Act, 1881, §30, a devise by a trustee is inoperative, and the title of a sole trustee, or a sole surviving trustee, passes to his personal repre- sentatives (supra, 346), who are to be deemed in law his heirs and assigns, within the meaning of all trusts and powers, the question raised in the principal case cannot again come up in England. In some of our States the title of a sole trustee of realty is not devisable, and does not descend to the heir, but vests in the court. — Ed. SECT. VI. 1 MATTER OF WADSWORTH. 511 DOILY V. SHERRATT. In Chancery, before Hon. John Verney, M. R., Miciiael.>l\s Term, 1735. [Reported in 2 Equity Abridgment, 742.] A. BY will appoints two trustees, to whom and their heirs, executors, and assigns, he devises his real and personal estate on several trusts ; and in case one die, then the other to execute the same. During their joint lives if one refuse to act, the other cannot act without him ; but the trust devolves upon the court. In the Matter of WADSWORTH. In Chancery, New York, before R. H. Walworth, C, November 15, 1847. [Reported in 2 Barbour, Chancery, 381.) This case came before the chancellor upon the petition of James S. Wadsworth and Elizabeth Wadsworth to remove W. W. Wadsworth as one of the executors and trustees under the will of his fatlier, and to appoint another trustee iu his place, so far as related to the trust cre- ated for the benefit of the petitioner, E. Wadsworth. The testator died in 1844, and all the trustees accepted the trust. In 184G, W. W. Wadsworth became of unsound mind, and was found to be a lunatic upon a commission issued to inquire into the fact.' The CiiANXELLOK. The common law has made no provision for the execution of a joint trust by one of the trustees, where the co-trustee, by reason of lunacy or other inability, becomes incompetent to execute the trust. This, therefore, appears to be a proper ease for tlie interpo- sition of tlie court to remove the lunatic tnistet!, under the provisioufi of the revised statutes ; so tiiat the Iriist?!, botii as to llie residuary i-state given to the daughter, and as to that given to the grandson of tlie t<*(*- tator, may be executed, either by the remaining trustee, or by him and Buch other person as may be substitutod in place of tlje lunatic. * The statement of fortti aud tho opiuion arc abridged. — Eu- 512 SWALE V. SWALE. [CUAP. V. SWALE V. SWALE. In Chancery, before Sib John Romilly, M. R., June 28, 1856. [Reported in 22 Beavan, 584.] The Master of the Rolls.' I think the plaintiff is entitled to a re- ceiver. What has taken place is thus described in the answer : Joseph Swale and Henry Anderson ask Mr. Ilolden to concur with them in making certain investments of the trust property. Mr. Holden, disa- greeing with them, refused to concur. Thereupon, they continued to act in the trusts, Without conferring with or consulting him. It appears also, that they have actually advanced money on certain securities, omitting the name of Mr. Holden, and that in one case they have taken a security in the name of one only. This court cannot approve of one trustee investing trust money in his own name exclusively of the others. It is suggested, that one executor may act without the concurrence of the others ; but it is impossible to say that this can be treated as an executorship account. The testator died four years and a half ago, and this transaction seems to have taken place, not in their character of executors, but in their character of trustees. I think that the plain- tiff, who is interested in the property, is not to be excluded in this manner. The answer of the two ti'ustees is this: They say, that if Mr. Holden will concur with them, they will be exceedingly happy to go on and act together, but that if he differ from them, then that they must act for the^nselves. Considering the manner in which this court deals with trustees, whenever a breach of trust is committed, and the way in which Holden might be involved in one, it seems not unreasonable that he should insist on his view of the case being adopted, or, at least, that the view of the other two trustees should not control his.'^ The testator intended to have the assistance and discretion of three trustees, but here, as it sometimes happens, they do not act amicably together, their united assistance and discretion cannot be obtained, and the majority 1 Only the opinion of the court is given. — Ed. 2 A majority cannot determine the administration of a private trust. Sloo v. Law, 3 Blatchf. 459; Loud ?;. Winchester, 52 Mich. 174; Hill v. Jo-sselyn, 21 Miss. 597 ; Green v. Miller, 6 Johns. 39; Philadelphia Trust y. Philadelphia Co., 139 Pa. 534; Low V. Perkins, 10 Vt. 532. Unless authority to administer the trust is expressly given to the majority by the instrument creating the trust, as in Attorney-General V. Cuming, 2 Y. & C. 139, or is reasonalily to be implied from the peculiar nature of the trust, as in Sloo v. Law, 3 Blatchf. 459. In public trusts the will of the majority of the trustees controls. "Wilkinson v. Malin, 2 Tyrwh. 544 ; Perry v. Shipway, 4 De G. & -J. 353, 1 Giff. I ; Cooper v. Gor- don, 8 Eq. 249; Sloo v. Law, 3 Blatchf. 459 ; Scott v. Detroit, I Doug. (Mich.) 119; Hill V. Josselyn, 21 Miss. 597 ; Green v. Miller, 6 Johns. 39 ; Low v. Perkins, 10 Vt 632. — Ed. SECT. VI.] LANE V. DEBENHAM. 513 act alone in the administration of the trust. In that state of things, the plaintiff is entitled to have the receiver appointed. A necessity is shown for some interposition to protect this property, not merely for the sake of the two tenants for life, but for the interest of the persons who may hereafter become entitled, who are not sui Juris, and are a class at present unascertained. LANE V. DEBENHAM. In Chancery, before Wigram, V. C, June 23, 1853. [Reported in 11 Ilare, 188.] Vice-Chancellor. * — The main question is, whether or not, there being a direct trust to raise £2,000 by sale or otherwise, — and thus a discretion to be exercised, and one of the trustees being dead, — it is thereby rendered impossible for the surviving trustee to execute this trust without the direction of the court.* The money, it is clear, must be raised ; can the Surviving trustee raise it by means of a sale, or is it necessary to come to the court in order that the court may exercise its discretion whether it is to be by sale, by mortgage, or by some other appropriation ? Mr. Walker has argued, that, whether the case be one of a ix)wer or a trust, if it be confided to two persons, or if it be a mere trust for sale, if it be said that the sale is to be made by two persons, a survivor of the two can never execute it. The argument proceeds, as it appears to me, upon an entire disregard of the distinction between powers and trusts. No doul)t, where it is a naked power given to two i)er8on8, that will not survive to one of them, uiiIchs tliore be express words, or a necessary implicatiou upon the wh(jIo will, Hliowing it lo be the inten- tion that it should do so. But the ground of tbat rule is, that, where the testator has disposed of liis property in one direction, subject to a power in two or more persons ciiablitig tlii^m to divert it in another direction, the property will go as the testator lias (irst directed, unless the persons to whom he lias given the power of controlling the disposi- tion exercise that power. He, therefore, to whom tlie testator has given the property, subject to having it taken from him by the exerciso of the power, has a right to say that it nuiHt W cxeroised tiimlo ft forma. It is therefore a rule of law, thai, in all cases of powers, the previous estate is not to be defeated unlcHS the power be exercised in the manner specifically directed. When, on the other hand, a tcstntor ' Only a part of the opinion of tho court in jjivon. — En. * The plaintiff, afl nurviving trnntoe, had raiwcH4 , WiiUhdii i. I'l-.irson, 2 Ex. R»l, .'S94 : Brown r. .Smith, 4f» L. J. Ch. 806 (.irwWr) ; I'otor v. Rovorly, 10 I'ot. .^32 ; I-oriii^H I'. .Marsh, 6 Wall. .'137; I'nrsoiiH r. Boyyiirh, 8 Gill, 403 ; Giitman v. Biitrkfr, 09 M<1. 7 ; Franklin v. OH)f»)od, 2 JohniH Ch. I, 14 .Johim. .527 ; ilolnir.nt v. O'Brien, 12 N. Y. 3'.t4 .\<,,„>nl(I havo heon iiisurl. 516 EX PARTE BELCHIER. [CHAP. V. cannot delegate the trust or power of sale to a third person, and a sale executed by such delegated agent is void. Perry, Trusts, § 779, and notes. Judgment ajfirnied. The other Judy es eoncur} Ex PARTE BELCHIER. In re PARSONS. In Chancery, before Lord Hardwicke, C, March 14, 1754. [Rejwrted in Ambler, 2\8.^ On cross petitions, and exceptions to the assignment of Conimis- Bioners of Bankrupt, the case appeared to be : — Mrs. Parsons was chosen assignee of the effects of her son, John Parsons, a bankrupt ; and there being a large quantity of tobacco to be sold, she employed one Wiggan, a broker, to sell the same by auc- tion. The money was paid to the broker, and after remaining in his hands for about ten days, he died insolvent ; and the Coaimissloners were of opinion the assignee ought to bear the loss. It was proved by several persons' depositions, that it is the common method of business to sell mercantile goods by auction, and to employ a broker, and for him to receive the money. 1 Taylor v. Hopkins, 40 111. 442 ; Grover v. Hale, 107 111. 638 ; Howard v. Thornton, 50 Mo. 291 ; Bales v. Perry, 51 Mo. 449 ; Vail v. Jacobs, 62 Mo. 130; Brickenkamp v. Rees, 69 Mo. 426 ; Spurlock v. Sproule, 72 Mo. 503 ; Powell v. Tuttle, 3 N. Y. 396 (only one of several trustees at the sale, — overruling King v. Stow, 6 Johns. Ch. 323) ; Fuller V. O'Neil, 69 Tex. 349, 82 Tex. 417; Hawey v. Steptoe, 17 Grat. 289 (sembk) ; Smith V. Lowther, 35 W. Va. 300 Accord. Connolly v. Belt, 5 Cranch, C. C. 405 ; Smith v. Black, 1 15 U. S. 308 (reversing s. c. McA. & M. 338, only one of several trustees present at the sale) ; Johns v. Sergeant, 45 Miss. 332; Tyler v. Herring, 67 Miss. 169 ; Dunton v. Sharpe, 70 Miss. 850 Contra. The trust for sale cannot be delegated to a stranger, or to one or more but less than all of the trustees. Bulteel v. Abinger, 6 Jurist, 410; Pearson v. Jamieson, 1 Mc L. 197; Saunders v. Webber, 39 Cal. 287; Taylor v. Dickinson, 15 Iowa, 483 {sembk); White V. Watkins, 23 Mo. 423; St. Louis v. Priest, 88 Mo. 612 ; Berger v. Duff, 4 Johns. Ch. 368; Ilawley v. James, 5 Paige, 318, 487 ; Newton v. Brownson, 13 N. Y. 587 (semble) ; Brennan v. Willson, 71 N. Y. 502 ; Bohleu's Est., 75 Pa. 304; Fuller v. O'Neil, 69 Tex. 349 ; unless by the instrument creating the trust authority is vested in less than all. Taylor v. Dickinson, 15 Iowa, 483. If from the general tenor of the instrument creating the trust, it is fairly to be inferred that the performance of the trust for sale iras not intended to be limited to the original trustees, the sale may be made by their lawful successors. Bradford v. Monks, 132 Mass. 405 ; Fish v. Coster, 28 Hun, 64. A trustee may delegate the performance of a merely ministerial act, e. rj., he may grant a jxjwer of attorney to execute a deed or contract, the contents of which have already been settled. Gillespie v. Smith, 29 111.473; Telford v. Barney, 1 Greene, 575, 591 ; Keim v. Liudley, (N. J. 1895), 30 Atl. K. 1063 ; Hawley v. James, 5 Paige, 487; Blight v. Schenck, lOBarr, 285; Bohlen's Est., 75 Pa. 304, 317. See Skipwith v. Bobinson, 24 Miss. 688; Black v. Erwin, Harp. 411. — Ed. 2 1 Kenj. 38 S. C. SECT. VI.] EX PARTE BELCHIER. 517 Lord HARD-mcKE, Chancellor, after argument at bar: If Mrs. Parsons is chargeable in this case, no man in his senses would act as assignee under commissions of bankrupt. This court has laid down a rule with regard to the transactions of assignees, and more so of trus- tees, so as not to strike a terror into mankind acting for the benefit of others, and not for their own. Courts of law, and equity too, are more strict as to executors and administrators ; but where trustees act by other hands, either from necessity, or conformable to the common usage of mankind, they are not answerable for losses. There are two sorts of necessities ; 1st, Legal necessity ; 2d, Moral necessity. As to 1st, A distinction prevails where two executors join in giving a discharge for money, and one of them only receives it, they are both answerable for it, because there is no necessity for both to join in the discharge, the receipt of either being sufficient ; but if trustees join in giving a discharge, and one only receives, the other is not answerable, because his joining in the discharge was necessary. 2d, Moral necessity, from the usage of mankind. If trustee acts as prudently for the trust as for herself, and according to the usage of business. If trustee appoints rents to be paid to a banker at that time in credit, and the banker afterwards breaks, the trustee is not answer- able. So in the employment of stewards and agents : the receiver of Lord Plymouth's estate took bills in the country of persons who at the time were reputed of credit and substance, in order to return the rents to London : the bills were protested, and the money lost, and yet the steward was excused.* None of these cases are on account of neces- sity, but because the persons acted in the usual method of business. Objection : The goods were in a warehouse, l>ut it docs not appear the broker had the key of the warehoii.se ; if he had, lie would l)i; tiien in the possession of the goods ; and if he had in such case embezzled any of them, Mrs. Parsons would not be liable for hiicIi loss. If she would not in such case of embezzlement, no more ri'ascju tliat sho should in this case. Objection : Mva. Parsons herself might have rcci'ivi'd tlio money. It is not usual to receive the money one's self; n (jucstion fre»jUontly happens, by reason of bankruptcy, as to goods, which arc shipped but rir)t imported, to whom they belong. In those cases, this cjmvl gener- ally orders the goods to l)e sold, and tin; money paid into the l»Miik, f 3 Atk. 480. f>18 SPEIGHT V. GAUNT. [CHAP. V. Objection : She might have taken security ; but to do that upon everv occasion would tend greatly to the hindrance of business. Therefore of opinion, Mrs. Parsons ought not to be charged with the value of the goods. ^ SPEIGHT V. GAUNT. In the Court of Appeal, January 19, 20, 1883. [Reported in 22 Chancery Division Reports, 727.J This was an appeal from a decision of Bacon, V. C, holding the defendant, who was an executor and trustee of the will of John Speight, liable to replace a sum of £15,275, part of the trust estate, which had been lost by reason of the default of oue R. E. Cooke, a stockbroker, doing business at Bradford. The facts were briefly as follows : There being a sum of £15,000 trust money on deposit at the bankers, the defendant proposed to invest it in securities of the corporations of Leeds, Huddersfield, and Halifax — securities authorized by the will — and employed Cooke to obtain £5,000 of the securities of each corporation. The Leeds corpo- ration issued debentures and debenture stock ; the two latter borrowed on debentures only. There was no absolute necessity to employ a broker in the purchase of the securities. On the 14th of February, 1881, Cooke called on the defendant and handed him a paper, which purported to be a bought-note, and was as follows: "John Cooke & Sou, Exchange, Bradford, February 24, 1881. To the executors of the late John Speight. We have this day bought for you as per your order, subject to the rules of the London Stock Exchange, £5,000 Leeds Corporation debenture stock at 105^ com- mission, net £5,275 ; £5,000 Huddersfield Corporation ditto ditto at 100 commission, net £5,000, Halifax Corporation ditto ditto at 100 com- mission, net £5,000: total £15,275 account. Signed John Cooke & Son." Cooke, on delivering the note, said that the payment was to be made the next day, and the defendant signed three cheques for the total amount to Cooke's order, who appropriated them to his own use, and on the 28th of March filed a liquidation petition, and absconded.^ Jessel, M. R. — This is an appeal from the decision of Vice-Chan- cellor Bacon finding the defendant, Mr. Gaunt, wlio was a trustee, liable to make good some £15,000 which has been lost through the 1 Ex parte Turner, Mont. & M. 52; Edmonds v. Peake, 7 Beav. 239 Accord. — Ed. 2 The statement of the case is taken from 52 L. J. Ch. 504. The arguments are omitted and tlie opinions are abridged. — Ed. SECT. VI.] SPEIGHT V. GAUNT. 519 failure of the stockbroker employed by him to make investments on account of the trust. The questions which we have to decide are important not only on account of the amount in dispute, but also on account of the principles which ought to govern the court in deciding points of this nature. In the first place, I think we ought to consider what is the liability of a trustee who undertakes an office which requires him to make an investment on behalf of his cestui que trust. It seems to me that on general principles a trustee ought to conduct the business of the ti-ust in the same manner that an ordinary prudent man of business would conduct his own, and that beyond that there is no liability or obligation on the trustee. In other words a trustee is not bound because he is a trustee to conduct business in other than the ordinary and usual way in which similar business is conducted by mankind in transactions of their own. It never could be reasonable to make a trustee adopt fur- ther and better precautions than an ordinary prudent man of business would adopt, or to conduct the business in any other way. If it were otherwise, no one would be a trustee at all. He is not paid for it. He says, " I take all reasonable precautions and all the precautions which are deemed reasonable by prudent men of business, and beyond that I am not required to go." Now what are the usual precautions taken by men of business when they make an investment? If the investment is an investment made on the Stock Exchange through a stockbroker, the ordinary course of business is for the investor to select a stockbroker in good credit and in a good position, having regard to the sum to be invested, and to direct him to make the investment, — that is, to pur- chase on the Stock Exchange of a jobber or another bruker the invost- ment required. In the ordinary course, all that the broker can do is to enter into a contract, — usually it is for the next account-day. Of course you may, by special bargain, make it for cash or for any other day, but the ordinary course is for the next account-day. Hi-fore the account-day arrives the purchasing stockbroker recjucsts his priii('ii)al to pay him the money, because on the account-day ho is himsulf liable to pay over the money to the vendor, whether a jobber or broker, and therefore be must have it ready for the account-day, and according to the usual course of business he sends a coi>y of the purchasing note to the principal stating when the money is rf(iuinMl to be; paid, and ho obtains the money from him a day (;r two before the account-day. When he gets it he pays it over, if it is a single transaction, to the vendor, and if it is one of a number of transactions he makes out an account with his vendor and pays over or receives fronj him the bal- ance on tlie transactions. It by no means follows, thert^fort", that ho pays over to the vendor the sum received, indeed there ni.iy be a ninn- ber of transactions, and if the balance is the other way, then he has to receive money on the account, but he must in any case have the money in order to keep himself out of cash advances. It is after pay- ment, and very often a considerable time after payment, that is, several ro 20 SPEIGHT V. GAUNT. [CHAP. V. da^'S, that be gets the securities perfected. If they are shares or stock in a company or railway or other company, it may be a considerable time before the transfers are lodged at the ollice, and it is not until the matter is ready for completion that he gets the transfer and the certifi- cates. But in all cases, except in the case of consols and a few other such stocks, there is some interval between the payment of the pur- chase-money and the obtaining of the security, or of the investment purchased. If, therefore, a trustee has made a proper selection of a broker, and has paid him the money ou the bought-note, and, by reason of the default of the broker the money is lost, it does not appear to me in that case that the trustee can be liable. Indeed it was not argued in this court that he would be liable, and I have said what 1 have said upon the subject more on account of an observation reported to have been made by Vice-Chancellor Bacon in the court below, than because of any argument that was addressed to us upon the point. Having said what I have said on the general principle, I think it right to call attention to the authorities upon the subject, in order to show that I have given the fair result of the authorities as they stand. There is, in the first instance, the case of Ex parte Belchier. It was before Lord Hardwicke, and it is the leading case upon the subject. Thei-e it was the assignee of a bankrupt, but the same principle applies to the assignee of a bankrupt as to a trustee. A large quantity of tobacco belonged to a bankrupt, and the assignee employed a broker to sell it, the money was paid to the broker, and ten days afterwards he died insolvent. The commissioners fixed the assignee with the loss. He appealed to Lord Hardwicke, and it was proved that it was the common practice to sell mercantile goods by auction, and to employ a broker, and for him to receive the money. That was the ordinary course of business. It would be the same thing if a trustee sold goods by auction, the auctioneer would receive the money, and as regards certain transactions an auctioneer is called a broker. Lord Hardwicke says: "If Mrs. Parsons is chargeable in this case, no man in his senses would act as assignee under commission of a bankrupt. This court has laid down a rule with regard to the transactions of assignees, and more so of trustees, so as not to strike a terror into mankind act- ing for the benefit of others, and not for their own." He says, " not to strike a terror into mankind " — it is rather rhetorical, but he means not to discourage respectable people from accepting the office of trustee. Then he says : " Courts of law, and equity too, are more strict as to executors and administrators." I must say I do not concur with this observation. I think in modern times the courts have not distinguished between assignees, executors, and trustees, but they have put them all together and considered that they are all liable under the same principles, but that is only a bye point. Then Lord Hardwicke goes on to say : " But where trustees act by other hands, either from necessity or conformably to the common usage of mankind, they are SECT. VI.] SPEIGHT V. GAUNT. 521 not answerable for losses." That of course means where they act by other hands and properly choose the hand by which they act. Now what is meant by " either by necessity or conformably to the common usage of mankind " ? It means where in the ordinary course of busi- ness transactions, an agent is employed. A gentleman, for instance, who has rents to collect as a rule employs a rent collector. He miglrt go round himself and collect them, but he does not do so. It is the common usage of mankind in such a case to employ an ageut to do it.^ So a man who buys stock on a Stock Exchange employs a stockbroker, and there it is absolutely necessary for him to do so ; he cannot buy himself, but even if he could it is usual to employ a stockbroker. Then Lord Hardwicke goes on: "Secondly — moral necessity, from the usage of mankind. If a trustee acts as prudently for the trust as for herself and according to the usage of business. If a trustee appoints rents to be paid to a banker at that time in credit, and the banker afterwards breaks, the trustee is not answerable. So in the employment of stewards and agents ; the receiver of Lord Plymouth's estate took bills in tbe country, of persons who at the time were reputed to be of credit and substance in order to return the rents to London. The bills were protested and the money lost, and yet the steward was excused. None of these cases were on account of neces- sity, but because the persons acted in the usual method of business." Then he answers a little further down the objection that Mrs. Parsons herself might have received the money. Tlie answer is that it is not usual to receive the money one's self. Then he says : " A question fre- quently happens by reason of bankruptcy as to goods, whicli are shipped but not imported, to whom tliey l)el()ng. In those cases tliis court generally orders tlie goods to be sold and the money paid into the bank, for the benefit of the parties who shall be entitled in the event. But yet the broker is the hand to receive the money first." Then there was an objection that "she might have taken security, but to do that on every occasion would tend greatly to the hindrance of business." That seems to me to go the wliole length we arc reijuired to go lulo in Tn TP Rriff, 2f> Ch. T)iv. 238— En. 2 The MafttfT of tho Kolls hc-ro ilincuwied with approval fho cnMex of Ilacon r. Bacon, 5 Ves. 3.31 ; Joy v. Campbell, 1 Sch. & Lef. 328; Clough v. Bond, 3 My. & Cr. 490. 522 SPEIGHT V. GAUNT. [CIIAP. V. trustee fairly nnxious to perform his diit}^ and to do as he thinks best for the estate, you are not to strain tlie law aQ;ainst him to make him liable for doing that which ho has done and which lie believes is right in the execution of his duty, without you have a plain case made against him. In other words, j^ou are not to exercise your ingenuity, which it appears to me the Vice-Chancellor has done, for the purpose of finding reasons for fixing a trustee with liability ; but you are rather to avoid all such hypercriticism of documents and acts and to give the trustee the benefit of any doubt or ambiguity which may appear in any document, 80 as to relieve him from the liability with which it is sought to fix him. There is no allegation in the statement of claim, although it has been argued, that Mr. Gaunt ought not to have employed a broker. I dis- miss that argument at once. It is quite plain that he was entitled to employ a broker in the ordinary course of business, whether the pur- chase was on the Stock Exchange, or whether the securities were to be obtained from the corporation. The advertisements not only autho- rized the employment of a broker, but offered to pay the brokerage, and there was no occasion for a gentleman who was a trustee to do that himself which might properly in the ordinary course of business be done by another, and especially where the cost of employing that other would not fall on the trust estate. I think, therefore, that he was entitled to employ a broker even if he could have obtained the securities from the corporations direct. It was said that it was the duty of Mr. Gaunt to pay the money direct to the bankers of the corporation, or at all events to make the cheque payable to th© order of the corporation. If it is to be assumed against him that he knew the stocks were to be acquired from the corporations direct, I do not say whether or not he ought to have paid the broker. I reserve my opinion upon that question. If it were not so, if he had neither notice nor knowledge that the stocks were to be procured otherwise than on the Stock Exchange, then I think the argument that he might have paid it through the bankers falls to the ground. In the first place, as I said before, the usual custom is to pay your broker, and in the next place it by no means follows that the money would ever have reached the vendor ; and, indeed, in the case where the purchase is in London, I suppose it would go to a London broker, so that I cannot^ see either according to the ordinary course of business or according to any possible mode of conducting business you could pay otherwise. It seems to me, therefore, that if you once arrive at the conclusion that Mr. Gaunt was uninformed by the bought-note that the purchase had been made in that way, there was no obligation on him to make any further inquiry. He trusted his broker, and he was not bound to ask the broker whether he had written a falsehood, whether he had really entered into a contract or not. The man told him in writing that he had, and he was entitled to trust him ; and, as it seems to me, there was no obligation on him to make any further inquiry. For these reasons it appears to me that the decision of the court below ought not to be affirmed. SECT. VI.] SPEIGHT V. GAUNT. 523 LiNDLEY, L. J. — The real importance of this case is, that it lies between these two propositions, — that a trustee cannot delegate his trust, and that on the other hand, he is entitled to employ persons to do that which an ordinary man of business would employ an agent to do. Now, looking at the matter fairly and properly as a business man would look at it, can it be said to be an improper thing on the part of a trustee who is desirous of investing £15,000 in this class of securities to go to a broker? That he might have acted otherwise is plain enough; but was it a reasonable and proper thing not to apply to the secretaries or treasurers of these corporations, but to employ a broker for tliat pur- pose ? So far as the evidence goes, it appears to me that on the bal- ance of the evidence it is impossible to say that this was an improper step for a trustee to take. Although business men can do these things for themselves, unless we can go the length of saying that the employ- ment of Mr. Cooke was an improper delegation of the trust or an improper employment, it will follow that it was not an unreasonable thing or a breach of trust to employ a broker to do this kind of work ; and the conclusion that I have arrived at on that point is that we cannot say the trustee, acting honestly, was not entitled to employ a broker to do this kind of business. Now, assuming that the trustee was justified in employing Mr. Cooke, and assuming that he was not negligent in not having his sus- picions aroused when this document was brought to iiim, the next question is, was he acting improperly in paying the purchase-money to the broker? That is to say, ought he, as a prudent man of business, to have paid it to somebody else, namely, to the principals from whom the l)roker ou'jlit to have got, but did not get, these seeuritii's, whi'ther upon the Stock Exchange or otherwise? If the trustee hud notice, and really did know tliat these things liad not been bougiit on the Stock Exchange, it is quite possible that he ought so to liave paid it. I say nothing about tliat. It might be that in tiiat case tlje trustee would be bound to see furtlior into tlie application of the money; but, misled as he was, and entitled as he was to treat tlu-se things as bought by the broker in the ordinary way of his liusiness as a broker on the Stock Excliango, it appears to me that it is perfectly impossible to Imld that he was Itoinid to see to tlie application of the money, in the sense that he was bound to pay the persons with wliom the l»roker negcjtinted the pureliase. W'e know the way in which business is done through brokers in buying ordinary stock. If a broker buys £10, 000 of stock there are sometimes half a dozen people fiom whom he gels the stock. It is not in the ordinary course of busineHs for a buyer, whether a trustee or not, to jiay to persons from whom the broker has bouglit; he pays tiie broker. lie is entitled to do that by the ordinary j-oiirsc of business. I do not myself understand that there is any evidence that, in point of fact, a trustee or any other person cm|»loying a ltn»ker to buy could do it in any other way. As a matter of busincHs I believe he could not. At all event,'*, the evidence is conclusive that the ordi- 524 SPEIGHT V. GAUNT. [CIIAP. V. • nary practice in employing a broker on such occasions Is to send a cheque to the broker. There was, therefore, no negligence in Mr. Gaunt doing so; there was no impropriety or breach of trust iu his conduct up to this point. Now, I do not propose to go through the authorities, but I will advert to two cases, because they have been brouglit to the attention of the court and they require notice. One is Bostock v. Floyer, in which Lord Romilly held that a man was responsible for the sum of £400 which he had given to his solicitor to invest. The solicitor had pretended to invest it on a mortgage of some copyholds, but he had not done so, and the money was lost, and the trustee was held respon- sible. As I understand it the ratio decidendi of the case was this, that it was not the ordinary course of business for a trustee to place money in the hands of a solicitor to invest. It was not a specific investment, it was handed to the solicitor, and in that point of view the case is intelligible enough upon the ground that it was not right for the trustee to hand over the money to the solicitor for the purpose of investment. The other case was Hopgood v. Parkin,^ cited by Mr. Millar. That case certainly goes much further than I should have thought right ; but in the result the case was appealed. An infant was concerned, and the Court of Appeal sanctioned a compromise on behalf of the infant. I wish most emphatically to say that if trustees are justified by the ordinary course of business in employing agents, and they do employ agents in good repute and whose fitness they have no reason to doubt, and employ those agents to do that which is in the ordinary course of their business, I protest against the notion that the trustees guarantee the solvency or honesty of the agents employed. Such a doctrine would make it impossible for any man to have anything to do with a trust. I differ from the Vice-Chancellor upon the question of fact : the principles of law, which he stated in the first part of his judgment are entirely sound, but I differ from the conclusion at which he arrived on the bought-note, and so differing from him I cannot agree with the judgment which he pronounced. BowEN, L. J. — This is a case of the greatest possible importance, and I think it right, therefore, to add my own expression of opinion to the judgments which have been already given, not merely because of the importance of the case, but because during a portion of the argu- ments I certainly did not feel quite so clear as the rest of the court appeared to do, — not as to the law, which has throughout been ad- mitted on all sides to be open to no doubt, but as to the correct infer- ence from one particular point to be drawn by the tribunal that has to decide the case. However, I have come to a decided opinion about the matter, and as I have done so I think it is as well that I should express fully what that opinion is. 1 Law Rep. 1 1 Eq. 74. SECT. VL] SPEIGHT V. GAUNT. 525 Now, with regard to the law it is clear that a trustee is only bound to conduct the business of the trust in such a way as an ordinary pru- dent man of business would conduct his own. I agree with what was said by the Master of the Rolls in the opening part of his judgment, and the cases which he has cited seem to me to be conclusive upon the point. The truth is that the law upon the subject is clear, because it is based upon common sense. A trustee cannot, as everybody admits, delegate his trust. If confidence has been reposed in him by a dead man he cannot throw upou the shoulders of somebody else that which has been placed upon his own shoulders. On the other hand, in the administration of a trust a trustee cannot do everything himself, — he must to a certain extent make use of the arms, legs, eyes, and hands of other persons, and the limit within which it seems to me he is confined has been described throughout, both in the cases which have been referred to and the judgments which have preceded me, to be this : that a trustee may follow the ordinary course of business, provided he runs no needless risk in doing so. That is in substance what was laid down in the case before Lord Hardwicke of Ex parte Belchier. Lord Hardwicke's view, putting aside peculiarities of lan- guage, is based upon reason and common sense. In other words a trustee may not employ an agent where he should do the work himself ; but he may employ an agent where there is a moral necessity, adopting the form of expression used in that case, that he should use the instru- mentality of others, that is to say, he may use others if it is in the ordi- nary course of business to use others, and if he runs no needless risk in doing so. A similar sort of test is applied every day by comniorcial men in the business world to transactions which are carried on tlu'ouirh agents. A contract of agency, a contract which a man makes with his agent when he commits anything to his hands is to a certain extent a personal one, and to the extent to which it is a personal one it cannot be delegated; but everylxxly knows tliat notliiiig is more oomnion, — nothing is more certain than that a large portion of commercial l»nsi- ness is performed through sub-agents. It is entrusted to the hands of an agent, not to do it himself, but to get it done, and in that class of cases, provided the agent chooses carefully the sub-agent, lio really discharges tiic functions he is oniployc*! to dischargo, and the proposition as to trustees or agents, that they cannot delegate, means this simply : that a man employed to do a tiling liimself has not the right to get somebody else to do it, but when he is employcfl to get it done through others he may do so. Now, applying that sort of reason- ing to the present case, T begin with this, that a trustee wh<> employs a broker to buy in the ordinary course of business on the Stock Kx- change is justified in employing and in paying money to the broker whom he has employed. I fail to sec what a trustee could be expected to do different. When the time comes for the completion of the pur- chase, the broker wants the money, and tire payment to the broker is therefore one of the means of effectuating the couipletion of the pur* 526 SrEIGIIT V. GAUNT. [CIIAP. V. chase. It is -wanted for that purpose. There is a moral necessity for it. The first question argiied in the case was whether Mr. Gaunt was entitled to employ a broker at all. I answer the question aflirniatively in favor of Mr. Gaunt. I think it was a sensible thing for Mr. Gaunt to employ a broker. As to the choice of a broker I need not say any- thing. Enough has been said about that. But that does not exhaust of course the points we have to decide. Assuming that Mr. Gaunt was right in employing a broker, was he right in paying over so large a sum as £15,000 to him? Now a payment of that sort would be wise or unwise, I should say, according to whether there existed or did not exist a reasonable necessity for it, having regard to the ordinary course of business. If it was a transaction on the Stock Exchange, as I have said, and the money was wanted to complete the transaction, I think the trustee, Mr. Gaunt, would have been justified in paying it to hia broker. If the purchase of the broker was made direct from the cor- poration I am by no means so clear, and I feel even more doubts, if I may say so, than my brothers who have preceded me on that point. If there had been no practical necessity for paying the broker it would be a large sum to pay him, and I cannot myself see that it is made out that such a course would be conformable to the ordinary usage of man- kind in tiie sense in which those words are used by Lord Hardwicke and in other cases. I should feel the greatest doubt whether Mr. Gaunt would be justified in paying a broker on the market if the broker made the purchase direct from the corporation, and that was understood to be the bargain. But the question whether the pay- ment was right or wrong depending on the nature of the transaction, bow was Mr. Gaunt to know the nature of the transaction ? He could only find it out fi'om the broker himself. He could not walk into the market and ask the persons with whom Mr. Cooke might be supposed to be dealing whether it was true or not that Mr. Cooke had made a bargain with them, nor could he be expected to write to the corpora- tion in the first instance to know whether he was justified in trusting his own broker. Of course he was justified in trusting his own broker on that point just as much as on the other points which have been dis- cussed. I do not see what he could have done otherwise. If that is 80 the question we have to answer in this case is narrowed. It really resolves itself into this, was Mr. Gaunt informed by the broker in effect that the transaction which had been completed was a transaction of purchase and sale upon the Stock Exchange in such a way that Mr. Gaunt was justified in believing it? Now, the oral evidence in the case certainly does not show that Mr. Gaunt had any reason to doubt that this was an ordinary Stock Exchange transaction. But I do not my- self rest very much upon the oral evidence, for Mr. Gaunt was the only person called on this question, and it may not be right to adopt the account he has given in his own favor of the conversation as minutely as if it were the language of a marriage settlement. But at SECT. VI.] SPEIGHT V. GAUNT. 527 any rate I see nothing in that evidence, and I have looked most care- fully into it, to help the plaintiffs. There is nothing in it to show that Mr. Gaunt was informed that this was a purchase direct from the corporation. With regard to what has been said as to the cases of Bostock v. Floyer and Hopgood i'. Parkin,^ referred to by Lord Justice Lindley, I entirely agree with him, and also with what has been said by the Master of the Rolls as to the subsequent alleged default in not requir- ing an explanation from Mr. Cooke of the delay which occurred after the money had once been paid.*^ ^ Law Rep. 11 Eq. 74. 2 Affirmed in the House of Lords, 9 App. Cas. 1. Tlie following extract from Lord Selborne's opinion is significant : — "Thinking, therefore, that the employment of Cooke as a broker in this ca.'^e, under the instructions actually given to him, was proper, and not inconsistent with the duty of the respondent as trustee, the next subject of incjuiry is, whether it was a just and proper consequence of that em])loyment, according to the principle of Ex parte Belchier, Amb. 218, that the trust money should pass through his hands. " Upon this point I must first observe, that the case appears to me to be different, from what it would have been if Cooke had entered into contracts with the several corporations for direct loans to tliem by the respondent, and had reported to the respon- dent that he had done so. The agency of a broker, as such, is not required to enter into a contract of that kind ; and if the agency of a person who hajipens to be a broker is, in fact, employed to do so, I do not perceive why the consequences should be different from what tliey would be if a solicitor or any other person had l)een em- ployed. The transaction could not be governed by the rules or usage of the London or any oth«r exchange. There would be no moral necessity, or sufficient practical rea.son, from the usage of mankind or otherwise, for payment of the money to tlie agent; there would be no difficulty or im])ediment, arising from the usual course of such business, in the way of its pa.«sing direct from the lender to the borrower, in exchange for the securities; and if it should be found convenient to .send it by tlio nand of a broker, or of any other messenger or agent, this might lie done by a che(|UO made payable to the borrower or his order, and crossetl, :us is usual in direct dealings between vendor and purchaser, debtor and creditor, wlien jiayments of consideraldo amount have to bo made. I think it right not to withhold the expression of my opinion, that such a case would fall witliin tlu> principle of Howland r. \VitluT(Icn, 3 Mac. & a. ."JBS, 574, and Floyer v. IJo.stuck, :).'> Heav. 0O3. COO, rather tlian that of Er parte Belchier. On this subject I find myself in agreement with Rowen, L. J. ; nor do I infer, from the judgments of Lindley, L. J., and Sir George Jessd, that cither of them thought otherwise." Lord Hlackbnrn declined to commit himself on the propriety of a payment to the broker in the sujiposed rasa that the trustee knew that tlio securities were Ixiught, not in the Stock Kxchange, but direct from tlio rorpnrntion. The dortrino of Speight v. Gaunt lias ticen approved in pubscqucnt cases. Bnllock r. Bullock, ."J.-i Jj. T. Rep 70.1. Siniibirly, delivery of money by a tmstco to a solicitor to pay into court is lawful, since a solicitor is the proper person to make such payment. Mitchell v. Mitchell, .')2 L. T. Rep. 178 {urmhU). The trustee was in fact luM nnswemble for misconf solicitor because he was negligent in making inquiries as to the due deposit of the money by the solicitor. — "Ev- LAW LTRRARY UKIVERalTY OF CALIFORNIA LOS ANGELES TY AA 000 604 264 2