:^
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 A TREATISE 
 
 ON THE LAW OF 
 
 TRUSTS AND TRUSTEES 
 
 BY 
 
 JAIRUS WARE PERRY 
 
 t 'I 
 
 FIFTH EDITION 
 EMBODYING RELEVANT CASES DOWN TO DATE 
 
 By JOHN M. GOULD 
 
 IN TWO VOLUMES 
 
 Vol. I. 
 
 BOSTON 
 LITTLE, BROWN, AND COMPANY 
 
 1899
 
 Entered according to Act of Congress, in the year 1872, 
 
 By Jairus Ware Perry, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 Entered according to Act of Congress, in the year 1874, 
 
 By Jairus Ware Perry, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 Copyright, 1S82, 
 By William Perry. 
 
 Copyright, 1889, 1899, 
 By Leverett S. Tuckeeman and Andrew Fitz, Trustees. 
 
 
 vJ 
 
 ©nibersitg ^ress: 
 John Wilson and Son, Cambridge, U.S.A.
 
 TO THE HONOKABLE 
 
 HORACE GRAY, JR., 
 
 ONE OF THE ASSOCIATE JUSTICES OF THE SDPEEME JUDICIAL COURT 
 OF MASSACHUSETTS, 
 
 THIS WORK IS INSCRIBED IN ACKNOWLEDGMENT OF THE ASSISTANCE RECEIYED 
 
 FROM HIS JUDICIAL OPINIONS, AND FROM HIS PEHSONAL INTEREST 
 
 IN THE PROGRESS OF ITS CONSTRUCTION, 
 
 BY THE AUTHOR. 
 
 66781^
 
 PREFACE 
 
 TO THE FIFTH EDITION. 
 
 Mr. Perry's learned and exhaustive treatise upon the 
 law of Trusts and Trustees has, in its different editions, 
 been so constantly consulted, tested, and relied upon by 
 the profession, and is so interwoven with the decisions 
 of the courts, as to make it at the present time one of 
 the leading monuments of the law. As nearly every 
 relation of life, or course of dealing, may readily give 
 rise to a trust, the subject is evidently capable of in- 
 definite expansion, and many extensions or qualifica- 
 tions of the author's statements of principles could now 
 be well made in the text, and pointed illustrations of 
 the application of general rules be there added ; but 
 this, although done to some extent by the preceding 
 editors, has not been thought advisable in the present 
 edition, as the judicial opinions, in which the author's 
 sentences are quoted, are now so numerous that the 
 importance of accurately preserving such quoted clauses 
 is clearly apparent. The notes added in this edition, 
 which are indicated by letters, and are in double 
 columns at the foot of the pages, should therefore be 
 consulted with added care, as they often indicate new 
 lines of departure, or qualifications, limitations, or lucid
 
 Vi PREFACE TO THE FIFTH EDITION. 
 
 illustrations of the author's rules. This is especially 
 true of resulting and constructive trusts, where part 
 payment of the consideration, or fraud or theft, give 
 rise to delicate problems of substantial justice as to the 
 adjustment of equities between investors, or deceived 
 or trusting property-owners, on the one hand, and 
 innocent purchasers and those familiar with legal rules 
 on the other. Discretionary and implied powers, the 
 duties of life-tenants and remainder-men to each other, 
 agents as trustees, the following of trust funds, and 
 investments, are prominent among the other topics 
 which have been specially developed in this edition, 
 in which about four thousand new decisions and 
 authorities have been added. Examination of the new 
 notes will best disclose the amount of care and labor 
 devoted to the new edition. 
 
 JOHN M. GOULD. 
 Boston, Sept. 1, 1899.
 
 PREFACE 
 
 TO THE FOURTH EDITION. 
 
 In" all the courts of last resort in this country, the 
 judges, continually and as a perfectly understood and 
 settled thing, refer to Perry on Trusts as the standard 
 authority upon all questions of law and equity pertain- 
 ing to its subject-matter. Many times eminent judges 
 in writing their opinions have deemed it sufficient 
 proof of a principle or rule they wished to make use 
 of, simply to state it with a reference to Perry; and 
 indeed few judges could hope to arrive at more correct 
 conclusions or more convincing proof of them than the 
 clear, strong mind and intense industry of the author 
 enabled him to attain. The heart's blood of his best 
 manhood he poured into this study ; many buried years 
 bloom in this book, — it is the flower of a vigorous life. 
 
 It is analytic, orderly, and symmetrical, and every- 
 where marked by comprehensive generalization, accu- 
 rate detail, and exhaustive citation. So perfect is it 
 that the new cases have not called for a single new 
 chapter, and for less than twenty-five new sections. 
 Three thousand cases decided since the last edition, 
 and referring in some way to trusts or trustees, have 
 been examined by the present editor. Most of them 
 were found not to involve any principle of the law of
 
 VIU PREFACE. 
 
 trusts, being merely related in name to our subject, 
 because a trustee was involved in a dispute as to 
 whether a certain contract was within the statute of 
 frauds, or parol evidence was admissible for a given 
 purpose, etc., — matters which pertain to other depart- 
 ments of law than that with which we are dealing. 
 The results of about one thousand new cases have been 
 embodied in the text of this edition. There is a marked 
 tendency in the suits of each decade to leave the old 
 battle-grounds and cluster about a few comparatively 
 new and unsettled points. The existence of an im- 
 plied or resulting trust, the right of a cestui to follow 
 trust property and its proceeds, and the rights of cred- 
 itors, have been such muster-fields during the last few 
 years, and many new phases of these old questions 
 will be found in the chapters that treat of them. The 
 old section numbers have not been disturbed, but the 
 figures at the top of each page refer to sections, not to 
 pages as heretofore. The section indices at the heads 
 of the chapters have been much improved by group- 
 ins; the references under sub-heads, and the main index 
 has been bettered in the same way, and also somewhat 
 enlarged. Every case inserted in this edition has been 
 carefully examined by the editor in person, and it has 
 been his effort throughout to put no work upon the 
 book that would not be in keeping with its high 
 character. 
 
 FRANK PARSONS. 
 Boston, October, 1889.
 
 ADVERTISEMENT TO THE THIRD EDITION. 
 
 The steady demand for the former editions of this 
 treatise on the Law of Trusts, and the frequent refer- 
 ences to it in the reported cases, attest the estimation 
 in which the work is held by the profession, and its 
 assured place among the standard text-books of the 
 law, such as was anticipated for it by those who knew 
 the author best, and were familiar with his studious 
 habit, his ability and learning. It is very much to be 
 regretted that by Mr. Perry's lamented death, at an 
 age when some of the best work might reasonably 
 have been expected from him, we have lost the ripe 
 fruits of the study and thought which he was con- 
 stantly giving to the subjects of which his book treats, 
 so long as health and strength allowed him to study. 
 
 In the preparation of the present edition, notes and 
 references have been made to the decisions, since the 
 publication of the last edition, bearing upon the topics 
 discussed in the book, with occasional additions of old 
 cases which have come under observation, leaving the 
 author's text and notes generally as they were written, 
 without incurring the risk of marring what was well
 
 X ADVEKTISEMENT TO THE THIRD EDITION. 
 
 done before. The arrangement and numbering of sec- 
 tions remain as in the last edition. Much time and 
 labor have been expended in revising the citations ; 
 and a large proportion of them have been verified or 
 corrected, and inaccuracies which, in the haste of prep- 
 aration of the former edition, had crept in, have been 
 corrected. I am indebted, for assistance in this work 
 of verification, to my young friends, Messrs. William 
 Perry and Alden P. White of the Essex bar, upon the 
 former of whom now devolves the duty of upholding 
 in the profession the name and fame of a worthy 
 father. The index of subjects has also been revised 
 and enlarged with many additional references, by 
 which, it is hoped, the body of learning in the text 
 has been made more easily accessible, and the general 
 usefulness of the book increased. 
 
 C. 
 Salem, February, 1882.
 
 ADVERTISEMENT 
 
 TO THE SECOND EDITION. 
 
 The rapid absorption of the first edition of this work 
 into the hands of the profession has not left to the 
 Author so much time as could have been desired for 
 the preparation of a second edition ; nor could the 
 necessary work have been done at all, unless it had 
 been constantly in his hands. Even before the first 
 edition had been sent forth, work was done, and mate- 
 rials accumulated, to improve the second, if it should 
 ever be called for. At no time has there been a re- 
 laxation of thought and study upon the subject. The 
 new cases have been assimilated as the Reports came 
 along, and old cases have been added as they fell 
 under notice in business or study. The Author owes 
 a debt of gratitude to his professional brethren in every 
 part of the country, for many valuable criticisms, sug- 
 gestions, and references to authorities. Thirty-three 
 new sections upon the trusts that arise under power of 
 sale mortgages, and deeds of trust in the nature of 
 mortgages, have been added ; and many new sections 
 upon important questions are scattered through the 
 work. The numbers of the sections of the first edition
 
 Xii ADVEETISEMENT TO THE SECOND EDITION. 
 
 are preserved, that there may be no confusion in the 
 citations of the two editions. 
 
 The Author has been reluctant to swell the book into 
 two volumes, but it was found impossible to compress 
 the materials into a single volume of a form and size 
 reasonably convenient for use. In sending forth this 
 edition the Author hopes that it may do something to 
 lighten the toils of a laborious profession, and that it 
 may meet with the same kind indulgence which was so 
 liberally bestowed upon the first. 
 
 Salem, Mass., Sept. 15, 1874.
 
 PREFACE. 
 
 An American book upon the subject of Trusts has 
 long been needed by the profession. At the solicita- 
 tion of too partial friends, the writer was induced to 
 undertake its preparation. The result is now given to 
 the public. 
 
 The writer of a law-book would be inexcusable if he 
 failed to use all the materials at his command, which 
 could in any way enable him to state and illustrate the 
 law. The treatises and opinions of eminent writers, as 
 well as the reports of the decisions and opinions of 
 judges, must all be studied and mastered. And where 
 the book is intended for the daily use of the lawyer in 
 busy practice, it must contain a notice and citation of 
 the latest cases and authorities. To this end all the 
 treatises and essays, as well as the reported decisions, 
 upon the subject, have been used. 
 
 In addition to the original opinions of judges con- 
 tained in the Reports, the excellent treatise on the 
 Law of Trustees, by Mr. Hill, and the notes and com- 
 mentaries of the learned American editors, have been 
 carefully considered upon all the subjects treated by 
 them. 
 
 The most complete work upon the Law of Trusts is 
 the fifth edition of Mr. Lewin's Treatise. This work, 
 first printed more than thirty years ago, has received
 
 xiv PREFACE. 
 
 in its various editions the most careful emendations, 
 corrections, and additions by its author, until in the 
 last edition it has grown into a remarkably full and 
 clear exposition of the Law of Trusts, as administered 
 in England. 
 
 It has been the constant object of the writer to cover 
 all the ground embraced by the treatises of Mr. Lewin 
 and Mr. Hill, so far as the same is important to the 
 American lawyer ; and, in addition, to include such 
 other subjects and matters, relating to the Law of 
 Trusts, not treated fully in those works, as are useful 
 and necessary in American practice. 
 
 Perhaps the accumulation of authorities upon the 
 many topics discussed may call for some explanation. 
 A large and increasing number of States and courts are 
 yearly sending out a great number of volumes of Re- 
 ports. Few lawyers can have access to the whole num- 
 ber, but all desire to see the cases in their own State 
 Reports bearing upon each proposition of the text. It 
 has therefore been the aim of the writer to cite the 
 cases in all the States, although the citation of a few 
 leading cases is always sufficient to sustain an elemen- 
 tary proposition. He cannot hope that he has cited all 
 the cases upon the many matters treated ; but it has been 
 his purpose to do so, and this has caused an accumula- 
 tion of cases which to some may seem unnecessary. 
 
 Conscious of defects in the execution of his work, he 
 trusts that a liberal profession will rather consider how 
 much of a difficult task has been accomplished, than how 
 much has been omitted or imperfectly done. 
 
 The writer cannot send this book forth to the public 
 without acknowledging the constant kindness and en- 
 couragement which he has received from his friends 
 during the labor of its composition ; and it is his espe-
 
 PREFACE. XV 
 
 cial duty and pleasure to acknowledge his obligations 
 to his friend and associate in business for nearly twenty 
 years, William Crowninshield Endicott, Esquire, 
 whose sound learning and clear judgment have been a 
 never-failing resource in matters of doubt and difficulty, 
 and whose refined and severe taste has been freely em- 
 ployed in pruning redundancies and softening asperities 
 of manner and style. 
 
 Salem, Mass., Nov., 187L
 
 CONTENTS OF VOLUME I. 
 
 Page 
 Index to Cases Cited xxix 
 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 Section 
 
 Origin, History, Definition, and Division or Classi- 
 fication OF Trusts 1-27 
 
 § 1. The general nature of trusts. 
 
 § 2. The technical nature of trusts, and their origin in the Jidei commissa of 
 the Roman law. 
 
 § 3. The origin of uses. 
 
 § 4. The inconveniences that arose from the prevalence of uses. 
 
 § 5. The statute of uses. 
 
 §§ 6, 7. The effect of the statute of uses, and the origin of trusts. 
 §§ 8, 9, 10. Development of trusts in England and America. 
 
 § 11. Advantage of the late adoption of trusts in America. 
 
 § 12. Object of this treatise. 
 §§13-17. Definition of trusts. 
 
 Classification of trusts. 
 
 § 18. Simple and special trusts. 
 
 § 19. Ministerial and discretionary trusts. 
 
 § 20. A mixed trust and power, and a power annexed to a trust. 
 
 § 21. Legal and illegal trusts. 
 
 § 22. Public and private trusts. 
 
 § 23. Duration of a private trust and of a public trust. 
 
 §§ 24-27. Express trusts, implied trusts, resulting trusts, and constructive 
 
 trusts. 
 
 CHAPTER II. 
 
 Parties to Trusts ; and what Property may be the 
 
 Subject of a Trust 28-72 
 
 I. §§ 28-37. Who may create a trust. 
 
 § 28. All persons competent to contract or make wills may create 
 
 trusts. 
 § 29. The king may create trusts. 
 
 § 30. The State may create trusts ; and so may all its officers. 
 
 § 31. Corporations may create trusts. 
 
 VOL. I. — b
 
 XVlll CONTENTS OF VOLUME I. 
 
 § 32. The power of married women to create trusts. 
 
 § 33. Capacity and power of infants to create trusts. 
 
 § 34. The marriage settlements of infants. 
 
 § 35. Of the ability of lunatics to create trusta 
 
 § 36. Of conveyances in trust l)y aliens. 
 
 § 37. Trusts by bankrupts and insolvents. 
 
 II. §§ 38-59. Who may be a trustee. 
 
 § 38. A person may convert him.self into a trustee. 
 
 § 39, Any person capable of taking the legal title may take as 
 trustee. Rules that govern courts in appointing trustees. 
 
 § 40. The sovereign may be trustee. Question as to remedy, 
 
 § 41. The United States and the several States may be trustees. 
 
 §§ 42-45. Corporations may be trustees. 
 
 § 46, Unincorporated societies may be trustees for charitable pur- 
 poses. 
 
 § 47. Public officers as trustees. 
 
 §§48-51. Married women as trustees. 
 
 §§ 52-54. Infants as trustees. 
 
 § 55. Aliens as trustees. 
 
 § 56. Lunatics as trustees. 
 
 § 57. A religious person or nun as trustee. 
 
 § 58. A bankrupt as trustee. 
 
 § 59. Cestui que trust may be a trustee for himself and others. 
 
 III. §§ 60-66. Who may be cestui que trust. 
 
 § 60. All persons may be cestuis que trust who may take the legal 
 
 title. 
 §§ 61, 62. The Crown and the State may be cestuis que trust. 
 
 § 63. Corporations as cestuis que trust. 
 
 § 64. Aliens as cestuis que trust. 
 
 § 65. Those who cannot take a legal interest cannot take an equi- 
 
 table interest. 
 
 § 66. Except in certain charitable trusts. 
 
 IV. §§ 67-72. What property may be the subject of a tru.st. 
 
 § 67. A trust may be created in every kind of valuable property, 
 
 § 68, Possibilities, choses in action, expectancies, and property not 
 
 at the time in esse may be assigned in trust. 
 § 69. Choses in action and expectancies that cannot be assigned in 
 
 trust. 
 §§ 70-72. Trusts in land lying in a foreign jurisdiction, and their ad- 
 
 ministration. 
 
 CHAPTER III. 
 
 Express Trusts, and now Express Trusts are created 
 AT Common Law, since the Statute of Frauds, and 
 IN Personal Property, and Herein of Voluntary 
 Conveyances or Settlements in Trust . . . . 73-111 a 
 
 § 73. Division of trusts, according to the manner of their creation. 
 §§ 74-77. Trusts at common law. 
 § 74. At common law, a writing not necessary to convey land.
 
 CONTENTS OF VOLUME I. xix 
 
 § 75. Uses might also be created without writing, and so may trusts, in 
 
 States where the statute of frauds is not in force. 
 § 76. Parol cannot control a written trust nor engraft an express trust 
 
 on an absolute conveyance. 
 § 77. Same rule as to trusts created by parol. 
 
 § 78. The statute of frauds, and its form in various States. 
 § 79. Effect of the statute upon the creation of express trusts. 
 
 §§ 80, 81. Effect of the different forms of the words of the statutes in the 
 
 several States. 
 § 82. IIow express trusts may be proved or manifested under the 
 
 statute. 
 § 83. Certainty of the terms of the trust, and the person by whom it is 
 
 to be declared. 
 §§ 84, 85. Trusts declared or proved by answers in chancery. 
 
 § 86. Trust in personal property may be created by parol. 
 
 §§ 87, 88. Trusts arising from gifts mortis causa and for charitable 
 
 uses. 
 § 89. Statute of wills, and the execution of wills. 
 § 90. Trust cannot be cre.atcd in a will, unless it is properly executed, to 
 
 pass the property. 
 §§ 91, 92. But might be manifested by a recital in a will not properly exe- 
 
 cuted. 
 § 93. The effect of the necessity of probate of wills. 
 
 § 94. Parol evidence cannot convert a bequest in a will into a 
 
 trust. An executor is a trustee of the surplus. 
 § 95. When a trust is completely created. 
 
 An agreement upon a valuable and legal consideration will be 
 
 carried into effect as a trust or a contract. 
 §§ 96-98. If a complete trust is created without consideration, it will be 
 
 carried into effect. 
 § 97. But if anything remains to be done to complete the trust, it will 
 
 not be carried into effect, if without consideration. 
 § 99. Whether a lawful trust is completely created or not a question of 
 
 fact in each case. 
 § 100. Trust for a stranger without consideration not completed without 
 
 transfer of the legal title. 
 § 101. But if the legal title cannot be transferred, a different rule will 
 
 apply. 
 § 102. If the subject of the proposed trust is an equitable interest, the 
 
 legal title need not be transferred. 
 § 103. The instrument of trust need not be delivered. 
 
 § 104. If once perfected cannot be destroyed, though voluntary. 
 § 105. Notice not necessary to trustee or cestui que trust. 
 
 §§ 106, 107. Voluntary settlements upon wife and children. 
 § 108. When they will not be enforced. 
 
 § 109. Tendency of the rule in the United States. 
 
 § 110. Marriage a valuable as well as meritorious consideration. 
 
 § 111. Effect of a seal. 
 § 1 1 1 a. New York Statute Law.
 
 XX CONTENTS OF VOLUME I. 
 
 CHAPTER IV. 
 Implied Trusts 112-123 
 
 § 112. The manner in which trusts are implied, and the words from which 
 they are implied. 
 
 § 113. Words from which a trust will not be implied. 
 §§ 114-116. Rules by which trusts will or will not be implied. 
 §§ 117, 1 18. Implied trusts from directions as to the maintenance of children or 
 others. 
 
 § 119. "When trusts for maintenance are not implied. 
 
 § 120. Rules that govern implied trusts. 
 
 § 121. Trusts arising by implication from the provisions of a will. 
 
 § 122. Implied trusts arising from contracts. 
 
 § 123. A direction to employ certain persons does not raise an implied trust. 
 
 CHAPTER V. 
 Resulting Trusts 124-165 a 
 
 § 124. Creation and character of a resulting trust. 
 
 § 125. Divisions of this kind of trust. 
 
 § 126. Resulting trust where the purchase-money is paid by one, and deed 
 
 is taken to another. See § 142. 
 § 127. Resulting trust where trust funds are used to purchase property, 
 
 and title taken in the name of another. 
 § 128. In what cases a trust results, and when a trust does not result. See 
 
 §§ 143, 156, 160. 
 § 129. When a person uses his fiduciary relation to obtain an interest in 
 
 or affecting the trust property. 
 § 130. Same rules apply to personal property unless it is of a perishable 
 
 nature. 
 § 131. Where a resulting trust will not be permitted as against law. 
 
 § 136. No resulting trust in a joint purchase. 
 
 § 132. Rules as to a resulting trust. 
 §§ 133, 134. Time and circumstances in the creation of a resulting trust. 
 
 § 135. Parol evidence as to a purchase by an agent not admissible. 
 §§ 137, 138. Resulting trusts may be established by parol. 
 § 139. May be disproved by parol — the burden of proof. 
 
 § 140. Cannot be changed by parol after they arise. 
 
 § 141. Will not be enforced after a great lapse of time. 
 § 142. Resulting trusts under the statutes of New York and other States. 
 § 143. A resulting trust does not arise if the title is taken in the name of wife 
 
 or child. 
 § 144. What persons it embraces. 
 
 § 145. Doubts and overruled cases. 
 
 § 146. When it will be presumed to be an advancement. 
 
 § 147. The presumption may be rebutted. 
 
 § 148. Is rebutted by fraud in the wife or child. 
 
 § 149. Creditors may avoid such advancements. When and how. 
 
 § 150. A resulting trust from the conveyance of the legal title without the 
 
 beneficial interest.
 
 CONTENTS OF VOLUME I. X3d 
 
 § 151. Every case must depend npon its particular writing and circnm- 
 
 stances. 
 
 § 152. Instances and illustrations. 
 
 §§ 153, 154. If there is an intention to benefit tlie donee, there is no resulting 
 trust. 
 
 § 155. Gifts to executors may create resultiiif^ trusts. 
 
 § 156. Resulting trusts do not arise upon gifts to cliaritable uses. 
 
 § 157. A gift upon trust or to a trustee and no trust declared. 
 
 § 158. Always a matter of intention to be gathered from the whole instru- 
 ment. 
 
 § 159. Where a special trust fails it will result. 
 
 § 160. Where a special trust fails from illegality or lapses, it results. 
 
 § 160 a. To whom it results. 
 
 §§ 161, 162. Whether a trust results from a voluntary conveyance without con- 
 sideration. 
 
 § 163. Equity docs not favor such conveyances; they may be void for 
 
 fraud, but no trust results. 
 
 § 164. Voluntary conveyances to wife or child. 
 
 § 165. No trust results from a fraudulent transaction. 
 
 § 165 a. How a resulting trust is executed. 
 
 CHAPTER VI. 
 Constructive Trusts 166-230 
 
 § 166. General nature of constructive trusts. They arise from fraud. 
 
 § 167. Jurisdiction of equity over them, and the relief given by converting the 
 offending party into a trustee. 
 
 § 168. Classification of constructive trusts. 
 
 § 169. General definition of a fraud in equity. 
 
 § 170. Principles upon which equity gives relief against fraud. 
 
 § 171. Actual fraud, or sugr/est in falsi. 
 
 § 172. Elustrations of actual fraud. 
 
 § 173. The misrepresentations and frauds that equity will relieve against. 
 
 § 1 74. The misrepresentation must be of facts material to the contract. 
 
 § 175. The misrepresentation must be of something peculiarly within 
 
 the party's knowledge. 
 
 § 176. The relief will depend upon the form in which it is sought. 
 
 § 177. Fraud that arises from concealment, or sti})pressio veri. 
 
 § 178. This kind of fraud depends much upon the relation of the parties. 
 
 § 179. When a person may not be silent. 
 
 § 180. Supprfssio veri is generally in law an affirmative act. 
 
 § 181. Courts will relieve where acts are fraudulently prevented from being 
 done — illustrations. 
 
 § 182. Trust estahlislied where a party fraudulently prevents a will from 
 
 bciup made in another's favor. 
 
 § 183. Trust established in odium spolidtoris. 
 
 § 1 84. Trust established upon a conveyance made in ignorance or mistake. 
 
 § 185. But if the conveyance is a compromise, courts will support it if possible 
 
 § 186. Trust established when a deed by mistake contains more land tlian was 
 intended. 
 
 § 187. Misrepresentation of the value of property and inadequacy of considera- 
 tion.
 
 XXU CONTENTS OF VOLUME I. 
 
 § 188. Catching bargains with young heirs and reversioners. 
 § 189. Trust arising from mental incapacity or imbecility of parties. 
 § 1 90. Mental weakness — old age. 
 
 § 191. Drunkenness. 
 
 § 192. Duress — oppression and distress. 
 
 § 193. Where several of these circumstances are found combined. 
 
 § 194. Frauds that arise by construction from the fiduciary relations of parties. 
 § 195. Between trustee and cestui que trust. 
 
 § 196. Renewal of leases in his own name by trustee. 
 
 §§ 197, 198. Contracts prohibited between trustee and cestui que trust, but the 
 cestui que trust alone can avoid them. 
 § 199. Rule does not apply to dry trustees. 
 
 § 200. Guardians and wards. 
 
 § 201. Parents and children. 
 
 §§ 202, 203. Attorney and client. 
 § 204. Rule applies to all confidential advisers. 
 
 § 205. Administrators and executors. 
 
 § 206. Principal and agent. 
 
 § 207. Directors of corporations. 
 
 § 208. Trusts that arise out of inducements held out for marriage. 
 
 § 209. Other fiduciary relations. 
 
 § 210. Undefined fiduciary and friendly relations. 
 
 § 211. Trusts arising from the frauds of third persons. 
 § 212. Frauds upon third persons as creditors, etc. 
 
 § 213. Conveyances by man or woman on the point of marriage. 
 
 § 214. Illegal and immoral contracts. 
 
 § 215. Fraud by pretending to buy for another. 
 
 § 216. Devises or conveyances upon secret illegal trusts. 
 
 § 217. Purchases from trustees with knowledge of the trusts. 
 
 § 218. Purchases without notice of the trust. 
 
 § 219. The safeguards thrown around such purchases. 
 
 § 220. The consideration in such cases. 
 
 § 221. The consideration must have been actually paid. 
 
 § 222. Notice of the trust — to whom it may be. 
 
 § 223. Notice may be actual or constructive. 
 
 § 224. Purchase of property from executors or administrators — real estate. 
 
 § 225. Personal property. 
 
 § 226. Constructive trusts may be proved by parol — statute of frauds does not 
 
 apply. 
 § 227. The right to set aside a conveyance for fraud is an equitable estate that 
 
 may be conveyed and devised. 
 §§ 228-230. Statute of frauds and the time within which steps must be taken to 
 
 avoid a fraudulent conveyance. 
 
 CHAPTER VII. 
 
 Trusts that arise by Equitable Construction in 
 
 THE Absence of Fraud 231-247 a 
 
 §231. Trust by equitable construction. Illustration. 
 
 § 232. Vendor's lien for the purchase-money of this description. States in 
 which it exists.
 
 CONTENTS OF VOLUME I. XXlll 
 
 § 233. This lien does not contravene the statute of frauds. 
 
 § 234. The nature of the iiiterest of the vendor under this lien. 
 
 §§ 235-237. When the lien exists and when not. 
 §§ 238, 239. The parties between whom the lien exists. 
 
 § 240. Trust by construction where a conveyance is made that cannot operate 
 at law. 
 
 § 241. Constructive trust where trust property is transferred by gift from the 
 trustee. 
 
 § 242. Constructive trust where a corporation distributes its capital stock with- 
 out paying its debts. 
 
 § 243. A person holding the legal title as security is a constructive trustee. 
 
 § 244. Executor indebted to the testator's estate is a constructive trustee. 
 
 § 245. A person may become a trustee de son tort by construction. 
 
 § 246. An agent may become a constructive trustee. 
 
 § 246 a. Other equitable trusts. See § 247 a. 
 
 § 247. A person holding deeds or papers or property belonging to another may 
 be a constructive trustee. 
 
 CHAPTER Vin. 
 
 Trusts that arise by Construction from Powers . 248-258 
 
 § 248. The nature of powers that imply a trust. 
 
 § 249. Court will execute such powers as trusts. 
 §§ 250, 251. Instances of powers which the court will execute as trusts. 
 
 § 252. Instances of powers that are not trusts. 
 
 § 253. Where the power is too uncertain. 
 
 § 254. The power must be executed as given, or it will remain a trust to be ex- 
 ecuted by the court. 
 §§ 255, 256. In what manner the court will execute a trust arising out of a power. 
 
 § 257. Whether courts will distribute per stirpes ot per capita. 
 
 § 258. And -whether to those living at the death of donor or of the donee. 
 
 CHAPTER IX. 
 
 Appointment, Acceptance, Disclaimer, Removal, 
 Resignation, Substitution, and Number of Trus- 
 tees, AND Appointment under a Power .... 259-297 
 
 § 259. Acceptance of the trust — how and when it should be accepted. 
 
 § 260. What is an acceptance, and its effect 
 
 § 261. How an acceptance may be shown. 
 
 § 261 a. Trustee's bond. 
 §§ 262, 263. Where an executor is also named as trustee. 
 
 § 264. Of the executor of an executor, or the executor of a trustee. 
 
 § 265. Trustee de son tort. 
 
 § 266. No such thing as a passive trustee. 
 
 § 267. Disclaimer by trustee. 
 
 § 268. Cannot disclaim after acceptance. 
 
 § 269. Whether an heir can disclaim after the death of the trustee. 
 
 §§ 270, 271. Parol disclaimer sufficient, but a writing more certain. 
 
 § 272. Where a legacy or other benefit is given to the trustee or executor.
 
 Xxiv CONTENTS OF VOLUME I. 
 
 § 273. Effect of a disclaimer. 
 
 Removal or resignation. 
 § 274. How a trustee may be removed or resign. 
 
 § 275. For what causes may be removed. 
 
 § 276. For what causes may be allowed to resign. 
 
 § 276 a. A trust shall not fail for lack of a trustee. See § 731. 
 §§ 277, 278. IIow the court proceeds iu substituting trustees. 
 § 279. Bankruptcy of trustee. 
 
 § 280. The resignation of trustees. 
 
 § 281. Where the same person is executor and trustee. 
 
 § 282. The proceedings to remove and substitute trustees. 
 
 § 283. Where all parties consent. 
 
 § 284. Of the vesting of the property in the new trustees. 
 
 § 285. Duty of trustee where all consent to his discharge. 
 
 § 286. Of the number of trustees. 
 
 Appointment of trustees under a power. 
 § 287. Trustees cannot appoint their successors or new trustees unless 
 
 power is given in the instrument of trust. 
 § 288. Caution necessary in new appointments. 
 
 § 289. Powers of appointment frequently matters of personal confidence. 
 
 § 290. Occasions or events upon which new appointments may be made. 
 
 §291. An appointment may bo made to fill a vacancy occurring before the 
 
 death of the testator. 
 § 292. Unfitness and incapacity. 
 
 § 293. Power cannot be exercised if the trust is already in suit in court. 
 
 § 294. By whom the power may be exercised. 
 
 § 295. The power must be strictly followed. 
 
 § 296. Who may be appointed to exercise the power. 
 
 § 297. Who may be appointed under a power. 
 
 CHAPTER X. 
 
 Nature, Extent, and Duration of the Estate taken 
 
 BY Trustees 298-320 
 
 § 298. Where trustees take and hold no estate, although an express gift is made 
 
 to them. Statute of uses. 
 § 299. Effect of the statute of uses upon conveyancing in the several States. 
 § 300. Effect of the statute in the rise of trusts. 
 §§ 301, 302. Rules of construction which gave rise to trusts. 
 § 303. The word " seized." 
 
 § 304. The primary use must be in the trustee to raise a trust. 
 
 §§ 305, 306. Personal property not within the statute. 
 
 §§ 307, 308. Where the statute executes trusts as uses, and where it does not. 
 § 309. Where a charge upon an estate will vest an estate in trustees, and 
 
 where not. 
 § 310. Where the trust is for the sole use of a married woman. 
 
 § 311. Trusts of personalty are not executed by the statute. 
 
 § 312. The statute only executes the exact estate given to the trustee ; but the 
 trustee may take an estate commensurate with the purposes of the 
 trust where it is unexecuted by the statute. Rules. 
 §§ 313, 314. Courts may imply an estate in the trustee where none is given.
 
 CONTENTS OF VOLUME I. XXV 
 
 §§ 315, 316. May enlarge the estate of the trustee for the purposes of the trust. 
 
 § 317. Illustrations, explanations, and modifications of the role. 
 §§ 318, 319. Rule in respect to personal estate. 
 
 § 320. Distinctions between deeds and wills in England and the United States. 
 
 CHAPTER XI. 
 
 Properties and Incidents of the Legal Estate in 
 
 THE Hands of Trustees 321-356 
 
 § 321. Common-law properties attach to estates in trustees. 
 
 § 322. Dower and curtesy in trust estates. 
 
 §§ 323, 324. Dower and curtesy in equitat)le estates of cestui que trust. 
 
 § 325. Forfeiture and escheat of trust estates. 
 
 § 326. Trustees must perform duties of legal owners. 
 
 § 327. Forfeiture and escheat of the equitable estates of cestui que trust. 
 
 § 328. Suits concerning legal title must be in name of trustee. 
 
 § 329. Who has possession and control of trust estates. 
 
 §§ 330, 331. Who has possession of personal estate. Rights and privileges of 
 trustees. 
 
 § 332. Who proves debt against bankrupt. 
 
 § 333. Who has the right of voting. 
 
 § 334. Trustee may sell the legal estate. 
 
 § 335. May devise the legal estate. But see § 341. 
 
 § 336. By what words in a devise the trust estate passes. 
 
 § 337. Where a trust estate passes by a devise, and where not. 
 
 § 338. The interest of a mortgagee in fee. 
 
 § 339. Propriety of devising a trust estate. 
 
 § 340. Whether a devisee can execute the trust. 
 
 § 341. Rule in New York, &c. 
 
 § 342. Where a testator has contracted to sell an estate. 
 
 §§ 343, 344. Rights of the last surviving trustee, and his heirs or executors. 
 
 § 345. Trust property does not pass to bankrupt trustee's assignee. 
 
 § 346. A disseizor of a trust estate is not bound by the trust. 
 
 §§ 347, 348. Merger of the equitable and legal titles. 
 
 §§ 349, 350. Presumption of a couveyauce or surreuder by trustee to cestui que 
 
 trust. 
 §§ 351-353. Where the presumption will be made, and where not. 
 
 § 354. Must be some evidence on which to found the presumption. 
 
 § 355. Is made in favor of an equitable title, not against it. 
 
 CHAPTER XII. 
 Executory Trusts 357-376 
 
 §§ 357-359. Nature of an executory trust. The rule in Shelley's case. 
 
 § 360. Distinction between marriage articles and wills. 
 
 § 361. Construction of n)arriage articles and their correction. 
 
 § 362. Where strict settlements will not be ordered. 
 
 §§ 363, 364. Settlement of per.sonal property. 
 
 § 365. Construction of marriage settlements. 
 
 § 366. Executory trusts under wills.
 
 XXVI CONTENTS OF VOLUME I. 
 
 § 367. Who may enforce the execution of executory trusts. 
 
 § 368. Inducements for marriage. 
 
 §§ 369, 370. Constructiou of executory trusts under wills. 
 § 371. The words " heirs of the body " and " issue." 
 
 § 372. When courts will reform executory trusts. 
 
 § 373. How courts will direct a settlement of personal chattels. 
 
 § 374. Whether courts will order a settlement in joint-tenancy. 
 
 § 37.5. What powers the court will order to be inserted iu a settlement. 
 
 § 376. Settlement will be ordered cy pres the intention. 
 
 CHAPTER XIII. 
 Perpetuities and Accumulations 377-400 
 
 § 377. Definitions of a perpetuity. 
 
 § 378. Executory devises — springing and shifting uses. 
 
 § 379. Growth of the rule against perpetuities. 
 
 § 380. Application of the rule. Indefinite failure of issue. 
 
 § 381. Applies to the possible vesting of estates — not to the actual. 
 
 § 382. Applies equally to trust and legal estates. 
 
 § 383. An equitable interest that may not vest within the rule is void. § 23. 
 
 § 384. Distinction between private trusts and charitable trusts. 
 
 § 385. A proper trust to raise money to be applied contrary to the rule. 
 
 Making estates inalienable. 
 
 § 386. Equitable estates cannot be made inalienable in England. 
 
 §§ 386 a, 386 b. How they may be made inalienable in some of the United States. 
 
 § 387. Exception in the case of married women. 
 
 § 388. How trusts can be limited, so that cestui que trust cannot 
 
 alienate. See § 81.5 a. 
 
 § 389. Limitation of personal estate to such tenant in tail as first attains 
 
 twenty-one. 
 
 § 390. When courts will alter trusts and when not. 
 §§ 391, 392. Statutes of various States in relation to perpetuities. 
 Accumulations. 
 
 § 393. Rule respecting trusts for accumulations. 
 
 § 394. In England the rule was altered by the Thellusson Act. 
 
 § 395. Construction of the Thellusson Act. 
 
 § 396. Rule against accumulations — when it applies and when not. 
 
 § 397. Application of the income in cases of illegal directions to accumu- 
 
 late. 
 
 § 398. Statutes in various States as to accumulations. 
 
 § 399. Accumulations for charitable purposes. 
 
 § 400. Accumulations in cases of life insurance. 
 
 CHAPTER XIV. 
 
 General Properties and Duties of the Office of 
 
 Trustee 401-437 5 
 
 § 401. A trustee, having accepted the oflSce, is bound to discharge its duties. 
 § 402. He cannot delegate his authority except to agents in proper cases. 
 § 403. Kot responsible if he follow directions in employing agents.
 
 CONTENTS OF VOLUME I. XXVll 
 
 § 404. Where agents must be employed. 
 
 § 405. When resi)oiisil)le for agents and attorneys. 
 
 § 406. When not responsible. 
 
 § 407. Difference of liability in law and equity. 
 
 § 408. Trustees responsible for all mischiefs arising from delegating dis- 
 
 cretionary powers. 
 § 409. Employing agents or attorneys may not be a delegation of authority 
 
 or discretion. 
 § 410. A sale or devise of the trust estate not a delegation of the trust. 
 § 411. Several trustees constitute but one collective trustee. 
 §§ 412, 413. When they must all act and when not. 
 § 414. As to the survivorship of the office of trustee. 
 § 415. General rule as to liability for cotrustees. 
 
 § 416. May make themselves liable, where otherwise they would not be. 
 
 § 417. Trustees must use due diligence in all cases, or they will be liable 
 
 for cotrustees. 
 § 418. Cases of a want of due care and prudence. 
 
 § 419. In case of collusion or gross negligence, a trustee will be liable for 
 
 acts of cotrustees. 
 § 420. When cotrustees are liable for others upon sales of real estate under 
 
 a power. 
 § 420 a. Indemnifying of one trustee by another. 
 § 421. As to liability of coexecutors for the acts of each other. 
 
 § 422. An executor must not enable his coexecutor to misapply the 
 
 funds. 
 § 423. When executors must all join they are not liable for each other's 
 
 acts ; but tliey must use due diligence. 
 § 424. An executor must not allow money to remain under the sole 
 
 control of his coexecutor. 
 § 425. Executors and administrators governed by tlic same rules. 
 
 § 426. Ilule where coexecutors or cotrustees give joint bonds for security 
 
 of the administration of the estate. 
 § 427. Trustees can make no profit out of the office. 
 § 428. Cannot buy up debts against the estate or cestui que trust at a 
 
 profit. 
 § 429. Cannot make a profit from the use of trust funds in business, trade, 
 
 or speculation. 
 § 430, 431. All persons holding a fiduciary relation, subject to the same 
 
 rule. 
 § 432. Can receive no profit for serving in their professional characters a 
 
 trust estate. 
 § 433. Trustees can set up no claim to the trust estate, and ought not to 
 
 betray the title of the cestui que trust. 
 § 434. In England, upon failure of heirs to the cestui que trust, trustee may 
 
 hold real estate to his own use. 
 § 435. Speculative questions. 
 § 436. In the United States, the interest of the cestui que trust in real estate 
 
 escheats. 
 § 437. So it does in England and the United States in personalty. 
 § 437 a. Contracts of trustee. 
 § 437 b. Signature of trustee.
 
 XXVIU CONTENTS OF VOLUME I. 
 
 CHAPTER XV. 
 
 Possession — Custody — Conversiox — Investment of 
 Trust Propektt, and Interest that Trustees may 
 
 BE MADE to PAY 438-472 
 
 § 438. Duty of trustee to reduce the trust property to possession. 
 
 § 439. Time witliin which possession should be obtaiued. 
 
 § 440. Diligence necessary in acquiring possession. 
 
 § 441. The care necessary in the custody of trust property. 
 
 § 442. In what manner certain property should be kept. 
 
 § 443. Where the property may be deposited. 
 
 §§ 444, 445. How money must be deposited in bank. 
 
 § 446. "Within what time trustee should wind up testator's establishment. 
 
 § 447. Trustee must not mix trust property with his own. 
 
 § 448. When a trustee is to convert trust property. 
 
 § 449. General rule as to conversion. 
 
 § 450. When a court presumes an intention that property is to be converted. 
 
 § 451. When the court presumes that the property is to be enjoyed by ces- 
 
 tui que trust in specie. 
 
 § 452. Of investment. 
 
 § 453. As to investment in personal securities. 
 
 § 4.54. As to the employment of trust property in trade, business, or specu- 
 
 lation. 
 
 § 455. Eule as to investments in England. 
 
 § 456. Eule in the United States. 
 
 §§ 457, 458. Rule as to real securities. 
 
 § 459. Of investments in the different States. 
 
 §§ 460. 461. Construction, where the instruments of trust direct how investments 
 may be made. 
 
 § 462. Within what time investments must be made. 
 
 § 463. Trustees must not mingle their own money in investments. 
 
 § 464. Must not use the trust-money in business. 
 
 § 465. Original investments and investments left by the testator. 
 
 § 466. Changing investments. 
 
 § 467. Acquiescence of cestui que trust in improper investments. 
 
 § 468. Interest that trustees must pay upon trust funds for any dereliction of 
 duty. 
 
 § 469. When he is directed to invest in a particular manner. 
 
 § 470. When he improperly changes an investment. 
 
 § 471. When compound interest will be imposed, and when other rules 
 
 will be applied. 
 
 § 472. Rule where an accumulation is directed.
 
 INDEX TO CASES CITED. 
 
 References are to sections. All sections up to 472 are in Vol. I. ; all after 472 are in VoL II. 
 
 A. & B., Tn re 603 
 
 Abbey v. Dewey 215 
 
 Abbott, Ex parte 649 
 
 Pet'r 282, 287, 334, 340 
 
 V. Amer. Hard Rubber Co. 404 
 
 V. Baltimore 918 
 
 V. Bradstreet 891, 899, 903 a 
 
 V. Foote 330 
 
 V. Geraghty 3G1 
 
 V. Gibbs 795, 790 
 
 V. Massie 272 
 
 V. Reeves 832, 877, 884, 926 
 
 Abby V. Dego 678 
 
 Abeel v. Kadcliff 83 
 
 Abel I'. Heathcote 769 
 
 Abell V. Abell 474 
 
 t'. Howe 221, 222 
 
 Abend i'. End. Fund Commission 736 
 
 Abercrombie v. Bradford 590 
 
 Aberdeen v. Blaikie 206 
 
 Abernaithy v. Abemaithy 275, 627 
 
 Abnev v. Kingsland 149 
 
 V. Miller 196 
 
 Aborn v. Padelford 166 
 
 Abraham v. Almon 112 
 
 t'. Ordway 855 
 
 Abshire v. Carter 770 
 
 Acherley v. Roe 872 
 
 Acker v. Phoenix 97 
 
 V. Priest 145 
 
 Ackernian v. Emott 430, 456, 459, 460, 471 
 
 Ackland v. Gaisford 122 
 
 V. Lutley 317 
 
 Ackleston v. Heap 204 
 
 Ackroyd r. Smithson 160, 449, 499 
 
 Acton V. White 670 
 
 V. Woodgate 585, 593, 596 
 
 Adair r. Brimmer 422, 407 
 
 I'. New Kiver Co. 885 
 
 V. Shaw 217, 847, 892 
 
 Adams v. Adams 38, 182, 312 
 
 V. Angell 347 
 
 V. Brackett 562, 570 
 
 t'. Bradley 215 
 
 V. Broke 460, 778 
 
 r. Buckland 414 
 
 V. Carey 83, 200 
 
 Adams v. Chaplin 
 
 
 
 380 
 
 V. Claxton 
 
 
 443 
 
 914 
 
 V. Clifton 
 
 402, 466, 
 
 851 
 
 900 
 
 V. Cole 
 
 635, 
 
 706 
 
 714 
 
 V. Collier 
 
 
 
 147 
 
 V. Gale 
 
 
 
 464 
 
 V. Gamble 
 
 
 
 656 
 
 V. Green 
 
 
 
 231 
 
 V. Guerard 
 
 
 
 299 
 
 V. Jones 
 
 
 
 929 
 
 V. Lambert 
 
 
 
 718 
 
 V. Lavender 
 
 
 
 639 
 
 V. Leavens 
 
 
 
 438 
 
 V. Lopdell 
 
 
 
 114 
 
 V. Mackey 
 
 
 
 661 
 
 . V. Paynter 
 
 274 
 
 287 
 
 288 
 
 V. Perry 
 
 
 305 
 
 748 
 
 V. St. Leger 
 
 
 873 
 
 881 
 
 V. Taunton 
 
 270, 273, 
 
 502 
 
 806 
 
 Adams and Kensington Vestry, In re 114 
 Adams Female Academy v. Adams 727 
 
 Adamson v. Armitage 648 
 
 Addams v. Heffernau 2-34 
 
 Addis V. Campbell 187, 188 
 
 Addison v. Bowie 612 
 
 V. Dawson 189 
 
 t'. Mascall 189 
 
 Adev V. Arnold 260 
 
 AdlJr V. Sewell 328 
 
 Adlington v. Cann 75, 77, 83, 88, 90, 
 92, 93, 7.39 
 
 Adlum V. Yard 590, 596 
 
 Adye v. Feuilleteau 453, 464 
 
 iEtna Life Ins. Co. v. Middleport 60 
 
 Affleck V. James 499 
 
 Agar V. Fairfax 871 
 
 Agar-Ellis, In re 603 
 
 Agassiz V. Squire 511 a 
 
 Aggas V. Pickerell 855, 862 
 
 Agiiew V. Fetterman 559 
 
 Aguilar v. Aguilar 634, 658, 059 
 
 Ahearne v. Hogan 193, 204 
 
 Ahrend i'. Odiorne 232 
 
 Aiken i'. Smith 318, .353 
 
 Ainslev v. Mead 680 
 
 Ainslie v. Medlycott 34, 171 
 
 Airey v. Hall 98, 100, 101, 821 
 
 Aislabie v. Rice 518 
 
 Akin V. Jones 60
 
 XXX 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Alaniz v. Cassenave IGG 
 
 Albany Ins. Co. v. Bay 655, 656, 600, 708 
 
 Albany's Case 705 
 
 Albee v. Wyman 672 
 
 Albert v. Savings Bank 242 
 
 V. Ware 14 
 
 Albright v. Oyster 124 
 
 Alcock t'. Sloper 451, 547 
 
 V. Sparhawk 570 
 
 Aldborough v. Frye 188 
 
 Alden i'. Gregory 861 
 
 V. St. Peter's Parish 384, 701 
 
 Aldersen, Ex parte 68 
 
 V. Temple 587 
 
 Alderson v. Peel 97 
 
 Aldrich v. Aldrich 114 
 
 V. Cooper 567. 573 
 
 Aldridtje v. Dunn 237; 239 
 
 V. Westbrooke 888, 898 
 
 Alemany v. Wensinger 820 a 
 
 Alexander, In re 482 
 
 V. Alexander 112, 385, 408, 440, 510, 
 
 511a, 811 
 
 V. Brame 103 
 
 V. Crittenden 639 
 
 V. Crosbie 220 
 
 V. Kennedy 205 
 
 V. McCullo'ch 634 
 
 V. McMurray 234, 559 
 
 V. Mills 784 
 
 V. MuUins 882 
 
 V. Pendleton 218, 219 
 
 V. Saulsbury 685 
 
 V. Summey 456 
 
 V. Warrance 140, 143, 144, 324 
 
 V. Wellington 29, 69 
 
 V. Williams 863 
 
 Aleyn v. Belchier 511, 511 « 
 
 Alger V. Fay 602 k 
 
 V. North End Savings Bank 82 
 
 Alison V. Goldtree 875 
 
 Alkire v. Alkire 122 
 
 Allcard v. Skinner 184 
 
 Allen, Ex parte 189, 618 
 
 V. Addington 179 
 
 V. Allen 41, 629 
 
 V. Arkenburgh 127 
 
 V. Backhouse 581, 597 
 
 V. Bartlett 869 
 
 V. Baskerville 315 
 
 V. Chambers 84 
 
 V. Chatfield 199, 602 v 
 
 V. Coburn 678 
 
 V. Coster 614, 615 
 
 V. De Groodt 856 
 
 V. De Witt 705 
 
 V. Gaillard 458, 460 
 
 V. Gillette 195 
 
 V. Henderson 366, 380 
 
 V. Hightower 678 
 
 V. Imlett 17, 328 
 
 V. Jackson 200 
 
 V. Knight 218 
 
 V. Macpherson 182 
 
 V. Maddock 93 
 
 V. Mattison 568 
 
 V. Montgomery Railway 757 
 
 V. Papworth 654 
 
 V. Parkham 380 
 
 Allen V. Rumph 
 
 
 
 
 361 
 
 V. Russell 
 
 
 
 
 828 
 
 V. Sayer 
 
 
 
 621 
 
 858 
 
 V. Stevens 
 
 
 
 448, 
 
 729 
 
 V. Watts 
 
 
 
 
 451 
 
 V. Wilkins 
 
 
 
 
 640 
 
 V. Withrow 
 
 
 
 
 86 
 
 V. Worley 
 
 
 
 
 863 
 
 Allen's Appeal 
 
 
 
 
 411 
 
 Allerton v. Knowell 
 
 
 
 
 634 
 
 Alley V. Lawrence 
 
 493, 
 
 5116, 
 
 783, 
 
 784 
 
 AUeyne v. Darcy 
 
 246, 848 
 
 876, 
 
 907 
 
 Allhusen v. Whittell 
 
 
 
 
 551 
 
 Alliance Trust Co. v. Nettleton Har- 
 
 wood Co. 223 
 
 Allis V. Billings 35, 189 
 
 Allison V. Allison 183 
 
 V. Drake 223 
 
 V. Kurtz 162, 511 c 
 
 V. Wilson 500 
 
 Allman v. Pigg 171 
 
 Alloway v. AUoway 248 
 
 I'. Braine 869 
 
 Almond v. Wilson 126 
 
 Almy V. Jones 705 
 
 Alsager v. Spaulding 212 
 
 Alsbrook v. Reid 476 a 
 
 Alsbury, In re 545 
 
 Alsop V. Bell 908 
 
 Alston V. Trollops 481 
 
 Alsworth V. Cordly 131 
 
 Altimius v. Elliott 915 
 
 Alverson v. Jones 677 
 
 Amand v. Bradboume 894 
 
 Ambrose v. Ambrose 77, 82, 126, 137 
 
 Amer. Acad. v. Harvard College 700, 
 
 701, 724, 748 
 
 Amer. Bible Soc. v. Marsh 748 
 
 V. Wetmore 748 
 
 Am. Box M. Co. v. Crosman 894 
 
 American Exchange Bank v. Inloes 590 
 
 V. Walker 593 
 
 Amer. Sugar Ref. Co. r. Fancher 166, 837 
 
 Ames V. Armstrong 426 
 
 V. Browning 205 
 
 V. Downing 428, 520, 847, 910 
 
 V. Fo.ster 686 
 
 V. Heslet 242 
 
 V. Holderbaura 511 b 
 
 V. Parkinson 440, 461, 409 
 
 V. Port Huron 194 
 
 V. Scudder 471 
 
 Amesbury v. Brown 571 
 
 Amherst "College v. Ritch 171 
 
 Ammont v. New Alexandria, &c. 
 
 Turnpike Co, 757, 759 
 
 Amory v. Green 460 
 
 V. Lord 391, 396 
 
 V. Lowell 552, 554 
 
 V. Meredith 337, 511 c 
 
 V. Reilly 239 
 
 Amos V. Heme Bay P. &c. Co. 877 
 
 Amphlett v. Parke 151 
 
 Ancaster v. Mayer 562, 507 
 
 Anderson, In re 280 
 
 V. Anderson 646, 652, 672 
 
 V. Austin 602 n 
 
 V. Baumgartner 602 n 
 
 V. Burchell 228
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 XXXI 
 
 Anderson v. Burwell 
 
 V. Culleri 
 
 i". Dale_v 
 
 V. Dawson 
 
 I', Earle 
 
 V. Fuller 
 
 V. Holloinan 
 
 V. Jones 
 
 V. Lemon 
 
 V. Mather 
 
 V. Miller 
 
 V. Neff 
 
 V. Northrop 
 
 V. Simnis 
 
 V. Stacher 
 Anderton v. Yates 
 Anding v. Davis 
 
 22'J, 809 
 (.58 
 
 3;jo 
 
 511 b, cr^b 
 
 262, 281 
 
 5!)1 
 
 C()2 i 
 
 126, (H)2j 
 
 538 
 
 334, 603, 605, 610 
 
 420 
 
 918 
 
 277, 428, 850 
 
 921 
 
 873 
 
 GI3 
 
 75, 91 
 
 Andover v. Merrimack County 642 
 
 Andres v. Miller 599 
 
 Andrew v. Andrew 547 
 
 V. Bible Society 45, 402 
 
 V. Cooper 873 
 
 V. Ludlow 592 
 
 t'. Schmitt 409 
 
 V. Trinity Hall 272 
 
 V. Wrifflev 228, 809, 810, 830, 805 
 
 Andrews, Kx'pnrte 427, 433, 487, 803 
 
 lie, Edwards v. Dewar 671 
 
 V. Andrews 700, 701, 730 
 
 V. Atlanta K. E. Co. 82 
 
 r. Bank of Cape Ann 117 
 
 V. Barnes 894 
 
 V. Bishop 501 
 
 V. Clark 154 
 
 V. Essex Ins. Co. 180 
 
 V. Hobson 98, 428 
 
 V. Jones 200, 627, 632, 642, 645 
 
 V. M'Guffog 727 
 
 V. Partington 117, 612, 615, 620 
 
 V. Salt 603 
 
 V. Sniithwick 804 
 
 V. Sparhawk 598, 795, 798, 802 
 
 Angell r. Dawson 400, 470 
 
 Aiigerstein v. Martin 461, 550, 551 
 
 Angier v. Angier 672, 673 
 
 V. Stannard 351, 476 a, 901, 922, 
 
 927, 928 
 
 Angle, Kx parte 848, 870 
 
 Angus V. Angus 72 
 
 V. Clifford 177 
 
 Ankeney v. Ilannon 655 
 
 Annesley v. Ashurst 474 
 
 V. Simeon 330, 520 
 
 Annis v. Wilson 124 
 
 Annis's Case 693 
 
 Anon. 116, 126, 136, 144, 157, 192. 219, 
 
 220, 244, 255, 270, 275, 330, 402, 
 
 415, 410, 421, 428. 431, 432, 453, 
 
 463, 474, 511 b, 581, 596, 097, 600, 
 
 602 q, 618, 621, 649, 003, 095, 701, 
 
 710, 712, 725, 770,782, 795, 790, 
 
 810, 815, 816, 818, 819, 827, 835, 
 
 839, 841, 903 «, 904 
 
 Ansley i*. Pace 820 n 
 
 V. Pasahro 233 
 
 Anson, Petitioner 277 
 
 Anstice v. Brown 803 
 
 Anthony v. Rees 805 
 
 Aulones v. Eslava 730, 731, 743 
 
 Antrim v. Buckingham 48 
 
 -Vntrobus v Smith 97, 100, 103, 107, 108, 367 
 Aplyn V. Brewer 416, 421 
 
 Ap|) V. Lutheran Congregation 
 Apple r. Allen 
 Appleton f. Boyd 
 Ai)i)l<iy, In re 
 Apreece v. Apreece 
 .\rbuckle v. Kirkpatrick 
 Arbuthnot v. Norton 
 Archer v. Hudson 
 
 V. Moss 
 
 V. Preston 
 
 r. Rooke 
 Archibald v. Wright 
 Ardill V. Savage 
 Arend v. Cottle 
 Arglasse f. Muschamp 
 Arguello's Estate 
 Arlin v. Brown 
 Arms V. Ashley 
 Armstrong v. Armstrong 
 
 V. Campbell 
 
 V. Lane 
 
 V. Miller 
 
 V. INIorrill 
 
 V. Park 
 
 V. Ross 
 
 V. Stoval 
 
 V. Walkup 
 Armstrong's Estate 
 Arnold v. Arnold 
 
 v. Byard 
 
 V. Chapman 
 
 V. Congreve 
 
 V. Cord 
 
 V. Garner 
 
 V. Gilbert 
 
 V. Macungie Bank 
 
 V. Ruggles 
 Arnony v. Steinbrenner 
 Arnot V. McClure 
 Arran v. Tj-rawley 
 Arrington v. Yarborough 
 Artcher v. McDuffie 
 Arthur v. Arthur 
 
 V. Comm. Bank 
 
 V. Marster 
 Arundel v. Phillpot 
 Assay V. Hoover 
 Asche V. Asche 
 Ash V. Bowen 
 Ashburnham v. Thompson 
 Ashburton v. Ashburton 
 Ashby V. Asliby 
 
 V. Blackwell 
 Ashcroft I'. Little 
 Ashley, In re 
 
 V. Bailey 
 Ashton V. 
 
 V. Ashton 
 
 V. Atlantic Bank 
 
 V. Langdale 
 
 I'. McDougall 
 
 V. Thompson 
 
 V. Wood 
 Ashton's Charity 
 Ashurst I'. Ashurst 
 
 f. Given 
 
 733 
 
 646 
 
 136 
 
 277 
 
 119 
 
 828 
 
 69 
 
 201 
 
 182 
 
 71 
 
 647, 648, 652 
 
 5116 
 
 274 
 
 891 
 
 71 
 
 443 
 
 232, 235 
 
 83 
 
 380 
 
 195, 602 !•, 803 
 
 892, 901 
 
 402, 408 
 
 259, 264 
 
 500 
 
 232 
 
 661 
 
 462 
 
 892, 918 
 
 114 
 
 918 
 
 160 
 
 385 
 
 135, 172 
 
 431, 432, 904 
 
 391, 511 
 
 247 a 
 
 639, 640 
 
 891 
 
 602 u 
 
 861 
 
 639 
 
 843 
 
 184, 665 
 
 31, 588, 590, 757 
 
 408 
 
 248 
 
 336, 768 
 
 329 
 
 387, 652, 670 
 
 468, 900 
 
 605, 610 
 
 626, 641 
 
 929 
 
 647, 648, 649, 651 
 
 615 
 
 222 
 
 581 
 
 371, 515 
 
 225, 814 
 
 61, 86, 704 
 
 213, 653 
 
 200 
 
 340, 695, 705 
 
 725 
 
 780 
 
 66, 299, 305, 386 a, 555
 
 xxxu 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Ashurst V. Martin 592 
 
 V. Mill 185 
 Ashurst's App. 207, 230, 8G5, 800 
 
 Ashworth v. Outram 600 
 
 Aspinall v. Jones 52y 
 Assets Realization Co. v. Trustees, 
 
 &c., Ins. Corp. 279 
 Associate Alumni v. General Theol. 
 
 Seminary 433 
 
 Aster V. Wells 222 
 
 Astley V. Milles 347 
 
 Aston V. Aston 665 
 
 V. Galloway 570 
 
 V. Wood 157 
 
 Aston's Estate 4G2, 468, 918 
 
 Trusts, In re 275 
 
 Astreen v. Flanagan 143, 144 
 
 Atcherley ». Vernon 38, 231, 616, 648 
 
 Atcheson v. Atclieson 637, 644 
 
 V. Robertson 420, 894, 900 
 
 Atchin's Trusts, In re 714 
 
 Athenreum v. Pooley 831 
 
 Atherton v. Mowell 634 
 
 V. Worth 594 
 
 Athey v. Knotts 632 
 
 Athol V. Derly 71 
 
 Atkin V. Lord 678 
 
 Atkins V. Allen 545 
 
 V. Atkins 299 
 
 V. Kron 55, 64, 554 
 
 V. Rowe 135 
 
 Atkinson, In re 82, 438 
 
 V. Atkinson 114, 242, 812 
 
 V. Jordan 592, 694 
 
 V. Marietta 757 
 
 V. Weidner 658 
 
 Atlantic Trust Co. v. Woodbridge &c. 
 
 Co. 386 
 
 Atterberry v. McDuffee 443 
 
 Att'y-Gen. v. Ailesbury 605 
 
 'v. Alford 471 
 
 V. Andrew 700, 729 
 
 V. Andrews 478, 704 
 
 V. Arran 283 
 
 V. Aspinall 23, 31, 384 
 
 V. Bacchus 637 
 
 17. Bain 739 
 
 V. Baliol Coll. 724, 725, 883 
 
 V. Barbour 280 
 
 V. Baxter 702, 718, 724 
 
 V. Bedford 742 
 
 V. Beverley 725, 745 
 
 V. Biddulph 737 
 
 V. Black 743 
 
 V. Blizard 698, 699, 733 
 
 V. Bolles 700 
 
 V. Boucherett 185 
 V. Boultbee 721, 724, 725, 729, 730 
 
 V. Bourchette 733 
 V. Bovill 698, 699, 725, 733 
 V. Bowver 693, 700, 730. 730, 
 739, 818 
 
 ». Brackenbury 511c 
 
 V. Bradlee 715 
 
 V. Brandeth 698, 733 
 
 V. Brazenose College 745 
 
 V. Brecon 478 
 
 V. Brentwood School 694, 695 
 V. Brereton 694, 701, 732, 746 
 
 Att'v-Gen. v. Brettingham 737 
 
 V. Brewer's Co. 745, 803, 871, 
 900, 901 
 
 V. Brickdale 412 
 
 V. Briggs 700, 727 
 
 V. Bristol 156, 725, 745 
 
 V. Brown 707, 724, 879 
 
 V. Browne's Hospital 742 
 
 V. Buckland 255 
 
 V. Bucknall 699, 746 
 
 V. Buller 336, 337 
 
 t'. Bunce 733 
 
 V. Burdett 739 
 
 V. Bushly 704 
 
 V. Butler 732 
 
 V. Caius College 42, 276, 900, 901 
 
 V. Calvert 733 
 
 V. Carroll 724 
 
 V. Chester 701, 736, 741 
 
 V. Chesterfield 907 
 
 V. Christ Church 725 
 
 V. Christ's Hosp. 745, 865, 900 
 
 V. Clack 282, 283, 293, 474, 508 
 
 V. Clapham 733 
 
 V. Clare Hall 743 
 
 V. Clarendon 42, 209, 742, 743 
 
 r. Clark 732 
 
 V. Clarke 698, 699 
 
 V. Clergy Society 734, 748 
 
 V. Clifont 278 
 
 V. Clifton 733 
 
 V. Cock 701, 702 
 
 V. Columbine 724 
 
 V. Combe 730 
 
 V. Comber 699, 712 
 
 V. Coopers' Co. 276, 725 
 
 V. Cordwainers' Co. 725 
 
 V. Coventry 745 
 
 V. Cowper" 278 
 
 V. Craven 704, 724, 725 
 
 V. Crook 742 
 
 V. Cullum 696, 747 
 V. Cuming 278, 413, 414, 490, 888, 894 
 
 V. Dallgars 848 
 
 V. Paugers 903 
 
 V. Daugous 278 
 
 V. Dedham School 742, 743 
 
 V. Dixie 725, 742 
 
 V. Dixon 441 
 
 V. Dodd 448 
 
 V. Downing 38, 248, 249, 694, 701, 
 730, 736 
 
 V. Dovler 271, 273, 715, 721 
 
 V. Drapers' Co. 725, 900, 901 
 
 V. Drummond 275, 733, 901 
 
 V. Dublin 694, 724 
 
 V. Dudlev 195, 230 
 
 V. Duley' 867 
 
 V. Duhvich College 742 
 
 V. Dvson 283 
 
 V. Eastlake 478, 707 
 
 V. East Retford 844, 900 
 
 V. Evart Booming Co. 732 
 V. Exeter 698, 733, 745, 855, 863, 809 
 V. Federal St. Meeting-House 710, 712, 
 732, 734, 745, 800, 864 
 
 V. Fishmongers' Co 718, 725, 745 
 
 V. Fletcher 721, 724, 729 
 
 V. Floyer 295, 414, 490
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 xxxm 
 
 Att'v- 
 
 Gen. V. Forster 
 
 2-i, 384 
 
 Foster 
 
 74G 
 
 Foundling Hospital 
 
 42, 742, 816 
 
 Gal way 
 
 725, 746 
 
 Garrison 
 
 732, 734, 748 
 
 Gascoigne 
 
 725 
 
 Gaunt 
 
 742 
 
 Geary 
 
 477 
 
 Gibson 
 
 724 
 
 Gill 
 
 380, 730 
 
 Gladstone 701 
 
 , 702, 721, 731 
 
 Glasgow College 
 
 724, 725, 733 
 
 Gleg 19, 408, 414 
 
 699, 721, 733 
 
 Glyn 
 
 724, 725, 729 
 
 Goldsmiths' Co. 
 
 733 
 
 Gould 
 
 733 
 
 Goulding 
 
 725, 729 
 
 Green 
 
 724, 730 
 
 Greenhill 
 
 383 
 
 Greenhouse 
 
 847 
 
 Grocers' Co. 
 
 746, 747 
 
 Guardians of Poor 
 
 478 
 
 Guise 
 
 724, 725, 729 
 
 Haberdashers' Co. 
 
 119, 156, 710, 
 
 
 712, 725, 746 
 
 Hall 
 
 113, 116, 736 
 
 Hamilton 
 
 769 
 
 Hartley 
 
 735, 746, 747 
 
 Heelis 23, 384 
 
 704, 707, 885 
 
 Heiner 
 
 732 
 
 Herrick 
 
 729 
 
 Hewer 
 
 710 
 
 Hickman 
 
 249, 701, 702 
 
 Hicks 
 
 724, 725 
 
 Higham 
 
 440 
 
 Hobart 
 
 900 
 
 Holland 
 
 419 
 
 Hotham 
 
 699 
 
 Hungerford 
 
 737 
 
 Hurst 
 
 726, 903 a 
 
 Hutton 
 
 734 
 
 Ironmongers' Co. 42, 
 
 699, 723. 724, 
 
 
 725, 729 
 
 Jackson 
 
 710, 729, 746 
 
 Jeanes 
 
 732, 740 
 
 Johnson 
 
 699 
 
 Jolly 701, 724, 726, 728 
 
 ,730,731,748 
 
 Kell 
 
 692, 733, 747 
 
 Kerr 
 
 737 
 
 Landerfield 
 
 42 
 
 Lawes 701, 702, 724, 725, 903 a 
 
 Leeds 
 
 325 
 
 Leicester 
 
 246, 846, 907 
 
 Lepine 
 
 741 
 
 Litchfield 
 
 295, 414, 490 
 
 Liverpool 
 
 816 
 
 LlandafE 
 
 725 
 
 Locke 
 
 414, 694, 742 
 
 London 276, 282, 701, 
 
 724, 725, 729, 
 
 
 741, 894 
 
 Londsdale 
 
 700, 704 
 
 JLigdalen College 
 
 742, 800 
 
 Manners 
 
 480 
 
 Mansfield 
 
 696, 733, 735 
 
 Marchant 
 
 725 
 
 Att'y-Gen. v. Mathews 699, 719, 729 
 
 v. Mercers' Co. 747 
 
 r. Merchant Tailors' Co. 747 
 
 V. Merrimack Manuf. Co. 732 
 
 V. Middleton 694, 724, 732, 742, 740 
 V. Minshull 724, 725 
 
 r. Monro 432, 734, 745, 747, 803 
 
 I'. .Moor's Ex'rs 747 
 
 V. Moore 476 a, 694, 733, 742, 748, 800, 
 
 928 
 V. Moseley 511 
 
 V. Murdoch 733, 734 
 
 V. Newark 737 
 
 V. Newbury Corp. 875 
 
 V. Newcombe 23, 384 
 
 V. Newman 695, 724 
 
 c. Northnmberland 699 
 
 I'. Norwich 478, 890, 910, 915 
 
 V. Oakaver 701 
 
 V. Oglander 729, 730, 746 
 
 V. Old South Society 699, 743, 745, 
 
 748 
 V. Owen 484 
 
 V. Oxford 724, 720 
 
 V. Painters' Co. 699 
 
 V. Parker 701, 732, 746 
 
 V. Parnther 189, 190, 665 
 
 V. Payne _ 745 
 
 V. Peacock " 699 
 
 V. Pearce 699. 720 
 
 V. Pearson, 275, 290, 702, 733, 734, 
 746, 915 
 V. Fitter 451 
 
 V. Piatt 693, 730, 733 
 
 V. Poulden 151, 395, 397 
 
 V. Power 718, 726 
 
 V. Price 256, 698, 699 
 
 V. Pvle 724 
 
 V. Ranee 699, 729 
 
 V. Randell 416, 417, 443 
 
 V. Ref. Prot. Dutch Church 745 
 
 V. Rochester 425, 733, 734, 745 
 
 V. Ruper 701 
 
 V. Rve 739 
 
 V. St. Cross Hospital 742 
 
 V. St. John's Hospital 42, 727, 745 
 V. Sands 3, 64, 327, 434 
 
 t?. Scott 19, 301, 304, 323, 408, 409, 
 413, 490, 745 
 
 V. Margaret & Regius Prof. Cam- 
 bridge 7(J(), 733 
 r. Master of Catharine Hall 725, 742, 
 
 745 
 VOL. I. — C 
 
 Shearman 
 
 
 413 
 
 Sherborne School 
 
 
 733 
 
 Shore 
 
 275, 
 
 287, 733 
 
 Shrewsbury 
 
 23. 
 
 384. 707 
 
 Skinners' Co. 
 
 694, 
 
 725. 745 
 
 Smart 
 
 
 732, 746 
 
 Sollv 
 
 
 468 
 
 Sothen 
 
 
 192 
 
 South Molton 
 
 
 725 
 
 Speed 
 
 
 699 
 
 Stafford 
 
 
 42 
 
 Stamford 
 
 
 278, 748 
 
 Stephens 
 
 249, 
 
 282, 283 
 
 Stepney 
 
 
 701 
 
 Sturge 
 
 
 741 
 
 Syderfin 
 
 719, 
 
 724, 729 
 
 Tancred 
 
 
 694 
 
 Todd 
 
 
 718 
 
 Town send 
 
 
 694 
 
 Trinity Church 
 
 699, 
 
 725, 746
 
 XXXIV 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Att'y-Gen. v. Utica Ins. Co. 42 
 
 V. Vifjor 511 c 
 
 V. Vint 699, 718, 724, 729 
 
 V. Vivian 701, 733, 746, 747 
 
 V. Wallace 694, 701, 728, 748 
 
 V. Wansay 730 
 
 V. Warren 737, 740 
 
 V. Warrick 724 
 
 V. Wax Chandlers' Co. 725, 744 
 
 V. Weymouth IGO 
 
 f. Wharwood 42, 700, 729, 732 
 
 V. Wiiitechurch 709, 724 
 
 V. Whitele3' 732, 746 
 
 V. Wilkinson 668, 698, 699, 733 
 
 V. William and Mary Coll. 735 
 
 V. Williams 700, 709 
 
 V. Wilson 31, 161, 848, 875, 879, 900 
 
 V. Winchelsea 287 
 
 V. Windsor 157, 745 
 
 V. Winsor 725 
 
 V. Wisbert 725 
 
 V. WyviUe 888 
 
 V. York 742 
 
 Atwater v. Perkins 511 6 
 
 V. Russell 83 
 
 Atwaters v. Burt 784 
 
 Atwood V. Small 171 
 
 V. Vincent 232 
 
 Aubrey v. Brown 636 
 
 V. Middleton 570 
 
 Aubuchon v. Bender 1(»4 
 
 V. Lory 414 
 
 Auby V. Doyl 121 
 
 Augusta V. Walton 277 
 
 Aultman v. Bishop 60 
 
 Austin V. Austin 275, 649 
 
 V. Bank of England 242 
 
 V. Bell 591, 592, 593 
 
 V. Brown 64, 131, 140 
 
 V. Halsev 569 
 
 V. Hatch 790 
 
 r. Johnson 591 
 
 V. Martin 273, 804 
 
 V. Munro 526 
 
 V. Shaw 411 
 
 V. Taylor 298, 357, 359, 372 
 
 V. Wilson 810 
 
 Australian &c. Co. v. Mounsey 486, 754 
 
 Aveline v. Melhuish 851 
 
 Aveling v. Knipe 133, 130 
 
 AveriU r. Loucks 590,602/ 
 
 Averv v. Avery 277, 428 
 
 V. Griffin 48 
 
 V. Osborne 900 
 
 V. Tyrinfjham 734 
 
 Avison v. Holmes 388 
 
 Awdley v. Awdley 611 
 
 Aycenena v. Peries 843 
 
 Ayer v. Aver 310 
 
 V. Bangor 43 
 
 Aylesford v. Morris 188 
 
 AVliffe V. Murray 195, 347, 904 
 
 Avisworth V. Whitcomb 104 
 
 Aylward v. Keame 200, 230 
 
 V. Lewis 279 
 
 Ayniar v. Roff 603 
 
 Aynsworth v. Pratchett 615 
 
 Ayres v. Methodist Church 45, 748 
 
 V. Ward 270 
 
 B. 
 
 Baal V. Morgher 
 
 
 647 
 
 Babb V. lieed 
 
 
 705, 710 
 
 Babbitt v. Babbitt 
 
 117, 
 
 248, 275 
 
 Babcock v. Case 
 
 
 179 
 
 V. Hubbard 
 
 
 426 
 
 Baber, lie 
 
 
 593 
 
 Back V. Andrew 
 
 
 144, 146 
 
 V. Gooch 
 
 
 587 
 
 Backhouse v. Middleton 
 
 
 581, 828 
 
 Bacon r. Bacon 
 
 404, 
 
 409, 417 
 
 V. Bronson 
 
 
 173 
 
 V. Devinney 
 
 
 147 
 
 V. Mclntire 
 
 
 856 
 
 V. Proctor 
 
 
 380, 896 
 
 t). Ransom 
 
 
 114 
 
 V. Rives 
 
 
 863 
 
 V. Taylor 
 
 
 299 
 
 Bacon's App. 
 
 304 
 
 311, 359 
 
 Bacon's Will In re 
 
 
 327 
 
 Bacot V. Hayward 
 
 
 440, 481 
 
 Baddam, Ex parte 
 
 
 555 
 
 Badger v. Badger 
 
 
 862, 869 
 
 Badiiam v. Mee 
 
 15 
 
 118, 784 
 
 Btegle V. Wenlz 
 
 171, 
 
 172, 215 
 
 Baer ». Pfaff 
 
 
 678 
 
 Baer's Appeal 
 
 
 443 
 
 Bagenal v. Bage 
 
 
 584 
 
 Baggett V. Meux 
 
 
 647, 671 
 
 Baggot V. Baggot 
 
 
 900 
 
 Bagley v. Kennedy 
 
 
 329 
 
 Bagot, In re 
 
 
 329 
 
 V. Bagot 
 
 
 276 
 
 Bagshaw v. Newton 
 
 
 903 a 
 
 V. Spencer 305, 315, 358, 359, 366, 371 
 
 V. Winter 636, 645 
 
 Bahin v. Hughes 420 a, 669, 848 
 
 Bailey v. ^itna Ins. Co. 199, 602 bb 
 
 V. Bailey 93, 245, 289 
 
 V. Brown 500 
 
 V. Cdlton 815 c 
 
 V. Ekins 260 
 
 V. Elkins 802 
 
 V. Gould 898, 902 
 
 V. Harris 75 
 
 V. Hawkins 371 
 
 V. Hemenway 127 
 
 V. Hollister 331 
 
 V. Inglee 838, 877 
 
 V. Irwin 86 
 
 V. Jackson 654, 658 
 
 V. Lloj'd 511 c 
 
 V. Merritt 602 Jf 
 
 V. Pearson 661, 675, 680 
 
 V. Robinson 205, 602 v 
 
 V. Stiles 183 
 
 V. Watkins 206, 209 
 
 V. Wilson 217 
 
 V. Winn 166 
 
 V. Young 440 
 
 Bailey, Petitioner 502 
 
 Baillie v. Treharne 678 
 
 Bain v. Buff 114 
 
 V. Lescher 648 
 
 Bainbridge v. Ashburton 337 
 
 V. Blair 275, 279, 282, 4.32, 818, 820, 
 
 885, 895, 904 
 
 Bainbrigge v. Browne 201
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 XXXV 
 
 Baines v. Dixon 
 
 V. McGeo 
 Baird v. Hall 
 Baird's Appeal 
 Baker v. Harney 
 
 V. Bartlett 
 
 V. Biddle 
 
 V. Bliss 
 
 V. Bradley 
 
 V. Brown 
 
 V. Carter 
 
 V. Crookshank 
 
 r. Disbrow 
 
 V. Dumaresque 
 
 V. Dutton 
 
 V. Evans 
 
 V. Foster 
 
 V. Gregory 
 
 V. Hull 
 
 V. Hathaway 
 
 V. Hollabaugh 
 
 V. Leathers 
 
 V. Lee 
 
 V. Lorillard 
 
 V. McAden 
 
 V. Monk 
 
 V. Moseley 
 
 V. Paine 
 
 V. Read 
 
 V. Reel 
 
 r. S. & W. Mo. R. Co 
 
 V. Smith 
 
 V. Sutton 
 
 V. Tibbetts 
 
 V. Tucker 
 
 V. Updike 
 
 581 
 
 205, 225 
 
 451) 
 
 344 
 
 G72 
 
 22:i 
 
 843, 855 
 
 225, 814 
 
 201, 670 
 
 815 n 
 
 658, 849, 900 
 
 598 
 
 4CG, 84;{ 
 
 72 
 
 701 
 
 98 
 
 202 
 
 684 
 
 639 
 
 685 
 
 84 
 
 143, 144, 147 
 
 293 
 
 610 
 
 920 
 
 189 
 
 112 
 
 220 
 
 205, 229 
 
 118, 121 
 
 129 
 
 724, 748 
 
 705 
 
 246 
 
 201 
 
 237 
 
 V. Vining 
 
 V. Washington 
 
 V. Whiting 
 
 V. Wind 
 Bakewell v. Ogden 
 Balbeck v. Donaldson 
 Balch V. Hallett 
 Balchen v. Scott 
 
 126, 132, 137, 139 
 
 330 
 803, 864 
 226 
 783 
 162 
 545 
 261, 262, 402 
 
 Balckow V. Heme Bay Pier Co. 752 
 
 Baldridge v. Walton 602 g, 602 p, 602 i, 
 
 602 u 
 
 Baldwin t'. Allison 195, 602 7i 
 
 V. Baldwin 626 
 
 V. Bannister 243, 431 
 
 V. Campfield 131, 164 
 
 V. Humphrey 95, 343 
 
 V. Johnston 127 
 
 V. Porter 262 
 
 V. Tuttle 861 
 
 Baldy r. Brady 559 
 
 r. Hunter 468 
 
 Bale V. Coleman 357, 359, 360 
 
 Bales V. Perry 402, 409 
 
 Balfe V. Lord 761 
 
 Balford v. Crane 147 
 
 Balfour v. Welland 593, 596, 597, 793, 794 
 
 Balguey v. Hamilton 835 
 
 Ball u. Alexander 748 
 
 V. Ball 440 
 
 V. Coutts 633, 636 
 
 V. Harris 597, 768, 802, 809 
 
 V. Maurice 189 
 
 V. Montgomery 213, 632, 633, 634, 901 
 
 Ballard v. Carter 336 
 
 V. Tavlor 647 
 
 Ballew I'.CIark 35 
 
 Ballin v. Merchants' Exchange Bank 242 
 
 Ballou, Pet'r 282 
 
 Balls V. Strutt 520, 816 
 
 Halsh V. Hyham 485, 909, 915 
 
 lialteel p. Plumer 254 
 
 IJaltimore r. Caldwell 195 
 
 Baltimore Ins. Co. v. Dalrvmyle 199 
 
 Baltimore S. D. Co. v. SutVo 499 
 
 Bamliaugh v. Bambaugh 610 
 
 Baiiipton V. Birchall 862 
 
 Bancroft v. Ashhurst 602 bb, 603 h 
 
 V. Cousen 127, 814 
 
 V. Lepieur 920 
 
 V. Russell 137 
 
 Bangor v. Beal 454, 828 
 
 Hangs V. Smith 337 
 
 Banister r. McKenzie 460 
 
 Bank v. Benning 602 a<x 
 
 V. Campbell 239 
 
 V. Guttschlick 60266 
 
 V. Loonev 790 
 
 V. Macy ' 199 
 
 V. Morrow 503 
 
 V. Pavne 222 
 
 V. Rutland 72 
 
 V. Simonton 127 
 
 V. Tvrrcll 202 
 
 V. Weeks 526 
 
 Bank Com'rs v. B'k of Buffalo 207 
 
 Bank of America v. Pollock 127, 128, 135 
 
 Bank of England v. Lunn 242 
 
 V. Moffat 242 
 
 V. Parsons 242 
 
 Bank of Mobile v. Clark 591 
 
 Bank of Orleans v. Torrey 205, 206 
 
 Bank of Republic v. Baxter 179 
 
 Bank of Turkey v. Ottoman Co. 827 
 
 Bank of U. S. v. Beverley 308, 559, 
 
 571, 576 
 
 V. Biddle 229, 230 
 
 t'. Carrington 75, 126 
 
 V. Daniels 855 
 
 V. Davis 222 
 
 V. Hirst 918 
 
 V. Housman 162 
 
 V. Huth 588, 593 
 
 Bank of Virginia v. Adams 72 
 
 V. Clegg 610 
 
 V. Craig 242 
 
 Bank of Wellsborough v. Bache 247 a 
 
 Banks v. Booth 750 
 
 V. Judah 206 
 
 V. Le Despencer 390 
 
 V. Mav 97 
 
 V. Phelan 730, 748 
 
 V. Sutton 323 
 
 V. Wilkes 415, 421 
 
 Baptist Assoc, v. Hart 46, 693, 724, 748 
 
 Baptist Soc. V. Ilazen 17, 299, 312, 328 
 
 Barber, Ex parte 338 
 
 V. Barber, In re 56 
 
 V. Barber 169, 212, 862 
 
 I'. Bowen 195 
 
 V. Carv 784 
 
 V. Slade 639, 640 
 
 Barbin v. Gasford 137
 
 XXXVl 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Barbour v. Johnson 
 
 
 127 
 
 Barclay i'. Goodloe 
 
 
 858 
 
 V. Maskelyne 
 
 
 699, 700 
 
 V. Kussell" 
 
 
 327 
 
 V. VVainwright 
 
 
 544, 545 
 
 Barcroft v. Murphy 
 
 
 800 
 
 Bardstown, &c. 11. R. Co. v 
 
 Metcalfe 
 
 
 
 754, 756 
 
 Bardswell v. Bardswell 
 
 112 
 
 113, 115 
 
 Bardwell v. Bardwell 
 
 
 572 
 
 Barford i'. Street 
 
 
 655 
 
 Barger's Appeal 
 
 
 554 
 
 Barger v. IJarger 
 
 133 
 
 145, 166 
 
 Baring, Re 
 
 
 477 
 
 Barker, In re 
 
 
 331, 460 
 
 V. Barker 127, 
 
 401 
 
 812, 843 
 
 V. Devonshire 
 
 
 795 
 
 V. Frye 
 
 
 82 
 
 V. Furlong 
 
 
 330 
 
 V. Hall 
 
 586 
 
 589, 591 
 
 V. Hill 
 
 
 231 
 
 V. Greenwood 305 
 
 306 
 
 307, 312 
 
 V. Ins. Co. 
 
 
 206 
 
 V. Laney 
 
 
 891 
 
 V. May 
 
 
 17 
 
 V. McAuley 
 
 
 456 
 
 V. Peile 
 
 
 282 
 
 V. Richardson 
 
 
 330, 520 
 
 V. Woods 
 
 
 645, 748 
 
 Barker's Estate 
 
 
 453 
 
 Barkley v. Dosser 
 
 
 329 
 
 V. Lane 
 
 
 226 
 
 V. Reay 
 
 
 819 
 
 V. Tapp 
 
 
 327 
 
 Barksdale v. Finney 
 
 
 428, 836 
 
 Barksworth v. Young 
 
 
 82, 84 
 
 Barlow v. Barlow 
 
 
 147 
 
 V. Devany 
 
 
 646 
 
 V. Grant 119, 
 
 615, 
 
 618, 915 
 
 V. Heneage 
 
 
 103 
 
 Barnaby v. Griffin 
 
 
 361 
 
 Barnard v. Adams 
 
 
 727, 894 
 
 V. Bagshaw 
 
 
 418 
 
 V. Duncan 
 
 
 780. 786 
 
 V. Hunter 
 
 
 202, 831 
 
 V. Jewett 
 
 
 333 
 
 V. Minshull 
 
 
 112 
 
 Barnardiston v. Lingwood 
 
 
 188 
 
 V. Soame 
 
 
 17 
 
 Barnes v. Addy 
 
 
 246, 846 
 
 V. Dow 
 
 
 827 « 
 
 V. Gay 
 
 
 324 
 
 V. Grant 
 
 112, 
 
 117, 120 
 
 V. Kirkland 
 
 
 272 
 
 V. McChristie 
 
 
 222 
 
 V. Pearson 
 
 
 641 
 
 V. Robinson 
 
 
 634 
 
 V. Taj'lor 
 
 
 150, 855 
 
 Barnett i\ Bamett ' 
 
 
 855 
 
 V. Clarke 
 
 
 388 
 
 V. Dougherty 
 
 
 75 
 
 V. Lichtenstein 
 
 
 660 
 
 V. Spratt 
 
 
 187 
 
 Barnett's Appeal 
 
 299, 
 
 305, 311 
 
 Barney, In re 
 
 
 246, 265 
 
 v' Arnold 
 
 
 378 
 
 V. Douglas 
 
 
 438 
 
 V. Griffin 
 
 
 590 
 
 V. Saunders 453, 462, 463, 
 
 468, 
 
 470, 918 
 
 Barnhart v. Greenshields 
 Barnsley v. Powell 171, 
 
 Bamum v. Baltimore 
 
 V. Barnum 
 
 V, Hampstead 
 Barnwall v. Barn wall 
 Barnwell v. Cawdor 
 Barr v. Cubbage 
 
 V. Weld 
 Barr's Trusts 
 Barrack v. McCulloch 
 Barratt v. Wyatt 
 Barrel 1 v. Joy 
 
 V. Han rick 
 Barrett v. Brown 
 
 V. Buck 
 
 V. Buxton 
 
 V. French 
 
 V. Hartley 
 
 V. Marsh 
 
 V. Rcids 
 
 V. Whitney 
 Barrett's Succession 
 Barrilieau v. Brant 
 Barrings v. Willing 
 Barrinpton v. Liddell 
 
 I'. Tristram 
 Barrington's Estate 
 Barroilhet v. Anspacher 
 BarroU v. Foreman 
 Barron v. Barron 82, 127, 137, 
 629, 633, 634, 635, 
 647, 
 
 V. Greenbough 
 
 V. Wadkin 64, 
 
 Barrs v. Fewke 
 Barry v. Hill 
 
 V. Ley 
 
 V. Marriott 
 
 V. Merchants' Exchange Co. 
 
 V. Missouri, K. & T. Ry. Co. 
 
 V. Woodham 
 Barrymore v. Ellis 
 Barstow v. Kilvington 
 Barter v. Wheeler 
 Barth v. Koetting 
 Bartle v. Wilkins 
 Bartlett v. Bartlett 149, 162, 602 b, 
 
 V. Downes 
 
 V. Gage 
 
 V. Gouge 
 
 V. Green 
 
 V. Janeway 
 
 V. Johnson 
 
 V. King 701, 709, 
 
 V. Nye 
 
 V. Pickersgill 76, 126, 
 
 V. Remington 
 V. Salmon 
 V. Southerland 
 Bartlett, Petitioner 
 Bartley v. Bartley 
 Bartol's Estate 
 Barton v. Barton 
 V. Briscoe 
 V. IMagruder 
 V. Tunnell 
 Barton's Estate 
 
 140, 459, 465, 
 
 226 
 
 , 182, 480 
 
 43 
 
 383 
 
 590 
 
 871, 872 
 
 566 
 
 828 
 
 478 
 
 438 
 
 664, 665 
 
 543 
 
 79,82 
 
 226 
 
 873, 875 
 
 150 
 
 191 
 
 299 
 
 429, 904 
 
 115, 119 
 
 592 
 
 202 
 
 443 
 
 136 
 
 404 
 
 397, 584 
 
 903 a 
 
 452, 477 
 
 126 
 
 415 
 
 627, 628, 
 
 630, 639, 
 
 654, 673 
 
 181, 226 
 
 327, 434 
 
 152, 157 
 
 245 
 
 701 
 
 457 
 
 31 
 
 875 
 
 888 
 
 670 
 
 226 
 
 761 
 
 206 
 
 891, 892 
 
 680, 826 
 
 352, 355 
 
 602/ 
 
 332 
 
 363 
 
 640 
 
 747 
 
 . 724, 748 
 
 724, 748 
 
 133, 135, 
 
 137, 206 
 
 82, 359 
 
 171 
 
 499 
 
 705 
 
 503, 807 
 
 460, 468 
 
 514, 516 
 
 652, 653 
 
 126 
 
 414 
 
 467, 918
 
 INDEX TO CASES CITED. 
 [References arc to sections.] 
 
 XXXVll 
 
 Barton's Trust 
 Bartram v. VVliichcote 
 Bartz V. I'aff 
 Barwull V. Harwell 
 
 V. Parker 
 Rarwick v. White 
 
 545 
 709 
 82 
 428, 8fW 
 «()() 
 82.S 
 
 Basti.inbv. Albertson 384, 724, 738,741,748 
 
 Basford v. i'eirson 685 
 
 Baskerville v. Baskerville 35!) 
 
 Bass V. Scott 299, 310 
 
 V. Williams 8(iG 
 
 Basset v. St. Levan 448 
 
 Bassett v. Fisher 602 ee 
 
 V. Granger 284 
 
 r. Nosworthy 218, 220 
 
 V. Spofford 128 
 
 Bassil V. Lister 400 
 
 Bastard r. Proby 371 
 
 Basy V. Magrath 192 
 
 Batchelor, hi re 627 
 
 Bate !•. Hooper 439, 449, 467, 902, 932 
 
 Bateman v. Bateman 308 
 
 V. Davis 453, 460, 467, 784, 849, 851 
 
 V. Faber 071 
 
 V. Hotchkin 390 
 
 V, Margerison 885 
 
 V. Ross 672 
 
 Bates V. Bates 511 6 
 
 V. Coe 580 
 
 V. Dandy 633, 640, 041 
 
 V. Heard 183 
 
 V. Johnson 829 
 
 f. Kelly 126, 133, 828 
 
 V. Mackinley 544, 545 
 
 V. Norcross 241 
 
 V. Preble 801 
 
 V. Scales 419, 4G2, 408 
 
 V. State 201 a 
 
 V. Underbill 418, 458 
 
 Bath V. Abney 325 
 
 i". Bradford 600, 764, 770, 915 
 
 Bath and Montague's Case 189, 509 b 
 
 Bath Gas Light Co. v. Claffy 21 
 
 Bath Savings Inst'n v. Hathorn, 79, 82, 103 
 
 Batho, In re. 58 
 
 Bathurst v. Murray 630 
 
 Baton V. Jacks 509 c 
 
 Batteley v. Windle 158 
 
 Battinger v. Biidenbecker 60 
 
 Baud V. Fardell 455, 407 
 
 Bauerman v. Kadenius 330 
 
 Baugh r. Price 187 
 
 V. Reed 903 a 
 
 Baum V. Grigsby 232, 237, 238 
 
 Baunigartner v. "Guesstield 126, 132 
 
 Bawtree v. Watson J 88 
 
 Baxter v. Costin 205, 428 
 
 V. Wheeler 591 
 
 Bayard v. Colefax 602 na, 602 dd 
 
 V. Farmers', &c. Bank 225, 242, 814 
 
 Baver v. Cockerill 299 
 
 Bayles v. Baxter 126, 137, 139, 215 
 
 Bay ley, In re 357 
 
 V. Boulcott 75, 77, 86, 97 
 
 V. Cumming 273, 502 
 
 V. Greenlea? 232, 233, 234, 239 
 
 V. Mansett 277, 287 
 
 V. Powell 900 
 
 r. Williams 194 
 
 Baylies v. Ba3'lies 329 
 
 V. Payson 17, 82 
 
 Baylis v. Newton 147, 151 
 
 V. Staats 275 
 
 Baylor r. H<.pf 126 
 
 Baynard v. Woolley 418, 848, 884, 931 
 
 Bayne v. Crowther 118 
 
 V. Wylie 592 
 
 Bazemore v. Davis 836 
 
 Heable v. Dodd 652 
 
 Beach v. Beach 17, 328, 330, 353, 520, 672 
 
 V. Dyer 171, 172 
 
 V. Fulton Bank 600 
 
 Beaches v. Dorwin 843 
 
 Bead more v. Gregory 889 
 
 Beal V. Beal 584 
 
 V. Burchstead 72 
 
 V. Harman 610 
 
 V. Svmonds 435 
 
 V. Warren 104, 108, 685 
 
 Beale v. Coon 330 
 
 Beales v. Spencer 649 
 
 Bcail V. Fox 724 
 
 Beals V. Lee 189 
 
 Bean v. Bridgers 145 
 
 V. Simpson 438 
 
 Bear v. Bear 677 
 
 V. Koenigstein 126 
 
 V. Whistler 232 
 
 Beard r. (,'ampbell 184 
 
 V. Kimball 586 
 
 V. Nutthall 111, 367 
 
 V. Stanton 865 
 
 V. Westcott 379 
 
 Bearden v. White 66 
 
 Beanlslev v. Ontario Bank 759 
 
 Beasley v. Magrath 613, 618 
 
 V. Wilkinson 339, 494 
 
 Beatson v. Beatson 102. 105 
 
 Beattie v. Butler 602^, 602 ^, 602 r, 602 a; 
 
 V. Davis 591 
 
 V, Johnston 877 
 
 Beatty v. Clark 199, 475, 490 
 
 V. Knowler 44 
 
 V. Kurtz 748 
 
 V. Marine Ins. Co. 44 
 
 Beaubien v. Poupard 205 
 
 Beauclerk v. Ashburnham 509 
 
 Beaudrv v. Montreal 869 
 
 Beaufort v. Collier 646, 647, 653 
 
 Beauland v. Bradley 194 
 
 V. Halliwell 550 
 
 Beaumont r. Boultbee 178, 863 
 
 V. Bramlev 186 
 
 V. IMeredith 827 
 
 r. Oliveira 704 
 
 V. Salisbury 317, 319 
 
 Beavan v. Oxford 438 
 
 Beaver v. Beaver 82, 225 
 
 V. Filson 730 
 
 Beck V. Graybill 126, 133 
 
 V. Pierce 658 
 
 Beck's Appeal 926 
 
 Becker's Estate 448, 449 
 
 Beckett i*. Allison 76 
 
 V. Cordley 53 
 
 Beckford i'. Beckford 144 
 
 V. Close 862 
 
 V. Kenible 72
 
 XXXVlll 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 228, 855, 863, 865 
 
 Beckford v. Wade 
 
 Beckley v. Newland 
 
 Beckwith v. Union Bank 438 
 
 V. St. Philip's Parish 701, 732, 735 a 
 Beddoe, In re 898 
 
 Bcd.ioes V. Pugh 433, 926 
 
 Bedell v. Scoggins 79 
 
 Bedford v. Abercorn 375 
 
 V. Bedford 700 
 
 V. Woodman 811 
 
 Bedford's Appeal 380 
 
 Charity 282, 697, 742 
 
 Bedilian v. Seaton 182 
 
 Bedingfeld and Herring's Contract, 
 
 In re 
 Bedwell v. Froome 
 Beebe v. De Baum 
 Beech v. Keep 
 
 V. Vincent 
 Beecher v. Major 
 
 V. Wilson 
 Beech ing v. Morphew 
 Beekman v. Bonsor 
 
 V. Hendrickson 
 
 V. People 
 Beeman v. Beeman 
 Beer v. Tapp 
 
 773 
 
 144 
 
 602p, 602c?rf, 782 
 
 98, 100, 101 
 
 584 
 
 130, 139 
 
 147 
 
 654 
 
 259, 384, 402, 743 
 
 104 
 
 748 
 
 143 
 
 899 
 
 Beer's Goods 264 
 
 Beere v. Beere 122 
 
 V. Hoffmister 511 a 
 
 Beery v. Trick 456 
 
 Beeson v. Beeson 195, 205, 207, 209, 428, 
 
 850, 853 
 
 Beevor v. Partridge 119 
 
 Begbie v. Crook 270, 273 
 
 Belch V. Harvey 855 
 
 Belcher v. Belcher 191 
 
 V. Parsons 411, 914 
 
 V. Saunders 172 
 
 Belchier, Ex parte 404, 406, 409, 411. 416, 
 
 421,441,443,779 
 
 Belknap v. Belknap 279, 919 
 
 V. Scalev 186 
 
 Bell V. Bell 627, 631, 632, 639, 645, 828, 863 
 
 V. Goodnature 
 
 V. Hallenback 
 
 V. Henderson 
 
 V. Hyde 
 
 V. Kellar 
 
 V. Phyn 
 
 V. Scamnion 
 
 V. Stewart 
 
 V. Turner 
 
 V. Webb 
 Bell's Estate 
 Bellamy, Re 
 
 V. Bellamy 
 
 V. Burrow 
 
 V. Sabine 
 Bellas V. McCarthy 
 Bellasis v. Compton 
 Bellinger, In re 
 Bellington v. Shaffer 
 Bellington's Appeal 
 Bellow V. Russell 
 Bellows V. Partridge 
 Belmont v. Obrien 
 Belote V. White 
 Beloved Wilkes Charity, Re 
 
 169 
 
 149 
 
 175 
 
 48 
 
 660 
 
 380 
 
 299 
 
 145 
 
 902 
 
 205, 299 
 
 918 
 
 656 
 
 428 
 
 82 
 
 172 
 
 211 
 
 75, 77, 83, 86, 139 
 
 511 6, 552 
 
 606 
 
 458 
 
 202 
 
 590, 600 
 
 288, 294, 414 
 
 858 
 
 511a 
 
 Belt V. Ferguson 
 
 
 213 
 
 Beman v. KafEord 
 
 
 757 
 
 Bemis v. Call 
 
 
 684 
 
 Benbore v. Davies 
 
 
 901 
 
 Benbow v. Moore 
 
 
 145, 448 
 
 V. Townsend 
 
 75, 77, 86, 139 
 
 Bench v. Biles 
 
 
 569, 570 
 
 Bendall v. Bendall 
 
 
 894, 918 
 
 Bender v. Reynolds 
 
 
 649, 651 
 
 Bendy, In re 
 
 
 841 
 
 Bendyshe, In re 
 
 
 630 
 
 Benedict v. Moore 
 
 
 166 
 
 V. Webb 
 
 
 5116 
 
 Benee, In re 
 
 
 382 
 
 Benett v. Wj'ndhara 
 
 
 744,914 
 
 Benford v. Daniels 
 
 
 918 
 
 Benger v. Drew 
 
 
 137, 144 
 
 Bengough v. Edridge 
 
 
 379, 390 
 
 Benhani v. Rowe 
 
 
 602 « 
 
 Benjamin v. Gill 
 
 
 433 
 
 Benlow v. Townsend 
 
 
 98 
 
 Benn v. Dixon 
 
 449 
 
 451, 547 
 
 Benneson v. Savage 
 
 
 248 
 
 Rennet v. Davis 38, 51 
 
 , 121, 277, 
 
 322, 324 
 
 Bennett, Ex parte 
 
 197 
 
 207, 209 
 
 Bennett, In re 
 
 
 477, 554 
 
 V. Atkins 
 
 
 892, 901 
 
 V. Austin 
 
 
 245 
 
 V. Bennett 
 
 147, 827 a 
 
 V. Biddle 
 
 
 636, 899 
 
 V. Brundage 
 
 
 602 M 
 
 V. Colley 467, 532, 
 
 534, 535, 
 
 851, 863, 
 867 
 
 V. Denniston 
 
 
 602 s 
 
 V, Dillingham 
 
 627 
 
 632, 639 
 
 V. Foster 
 
 
 885 
 
 V. Fulmer 
 
 
 77 
 
 V. Going 
 
 
 892, 901 
 
 V. Hayter 
 
 
 714, 729 
 
 V. Honeywoo 
 
 256, 
 
 276, 282 
 
 V. Hutson 
 
 
 126 
 
 V. Judson 
 
 
 172, 173 
 
 V. Lowe 
 
 
 380 
 
 V. Lytton 
 
 
 924 
 
 V. Mayhew 
 
 
 837 
 
 V. Merriman 
 
 
 185 
 
 V. Merritt 
 
 
 813 
 
 V. Oliver 
 
 
 636 
 
 V. Preston 
 
 
 843 
 
 V. Robinson 
 
 
 514 
 
 V. Union Bank 
 
 590, 602 d 
 
 V. Vade 
 
 171 
 
 , 182, 189 
 
 V. Whitehead 
 
 
 871 
 
 Bennett's Estate 
 
 
 917 
 
 Bennington Iron Co. v. 
 
 Isham 
 
 757 
 
 Benscotter v. Green 
 
 
 95 
 
 Bensell v. Chancellor 
 
 
 189 
 
 Benson v. Benson 
 
 
 260, 653 
 
 V. Bruce 
 
 
 918 
 
 V. Hawthorne 
 
 
 207 
 
 V. Heathara 
 
 
 206 
 
 V. Whittam 
 
 
 117, 119 
 
 Bensusan v. Nehemias 
 
 
 852 
 
 Bent V. Priest 
 
 
 128 
 
 Bentham v. Hincourt 
 
 
 243 
 
 V. Smith 
 
 
 254 
 
 V. Wiltshire 
 
 
 501. 803 
 
 Bentley. In re 
 
 
 329 
 
 V, Craven 
 
 
 427, 430
 
 niDEX TO CASES CITED. 
 [References are to sections.] 
 
 XXXIX 
 
 Bentley v. TMackay 
 
 82, 90 
 
 Bickford v. Bickford 
 
 79 
 
 v.l'helps 
 
 226 
 
 Bickham v. Cruttwell 
 
 671 
 
 V. Slircve 
 
 408 
 
 V. Smith 
 
 900 
 
 Benton, /« re 
 
 671 
 
 Bick ley v. Guest 
 
 765 
 
 Hcnvoi/.e V. Cooper 
 
 8;i8 
 
 Bicknell v. Field 
 
 72 
 
 UcMizicn ('. Lenvir 
 
 217 
 
 V. Gouch 
 
 861 
 
 Berdiard v. Scott 
 
 731 
 
 Biddle V. Perkins 
 
 506 
 
 Berdoe r. Dawson 
 
 291 
 
 Biddies v. Biddies 
 
 117, 020 
 
 Beresford, Jn re 
 
 635 
 
 Biheld V. Taylor 
 
 673, 874 
 
 V. Armaf(h 
 
 665 
 
 Bigelow V. Cady 
 
 382 
 
 *. Beresford 
 
 845 
 
 V. Morang 
 
 903 a 
 
 V. liobson 
 
 636 
 
 Bigler v. Walker 
 
 602 1 
 
 Bergen v. Bennett 
 
 602 h, 002 t 
 
 liigley V. Jones 
 
 127 
 
 V. Hendull 
 
 705 
 
 Bignell, Jn re 
 
 820 
 
 Bergengren v. Aldrich 
 
 329, 5-28 
 
 Bignold's Settlement, fn re 
 
 292 
 
 Berber v. Duff 402, 770, 77!i 
 
 Biibie v. Lumley 
 
 184 
 
 Berj^nian ^\ Bogda 
 
 500 
 
 Bill V. Cureton 
 
 104, 593 
 
 Beringer v. Beringer 
 
 J82 
 
 V. Kynaston 
 
 541 
 
 V. I>utz 
 
 124, 120 
 
 Billing r. Brogden 
 
 440 
 
 Berkelej' v. King's College 
 
 09 
 
 V. Southee 
 
 204, 210 
 
 V. Partington 
 
 117 
 
 Billingliam i'. Lawthea 
 
 108 
 
 V. Kyder 
 
 512, 517 
 
 Billings V. Billings 
 
 590 
 
 V. Swinburne 
 
 118, 020 
 
 V. Clinton 
 
 133 
 
 Berkhanistead School, Ex parti 
 
 742 
 
 Billingslea v. Moore 
 
 272 
 
 Berkin v. Marsh 
 
 863 
 
 Billingsley r. Crichett 
 
 613 
 
 Berkuieyer i'. Kellerman 
 
 197 
 
 r. Matthew 
 
 414 
 
 Berniingiiam v. Wilcox 
 
 848 
 
 Billington's Appeal 
 
 607 
 
 Bernard v Bongard 
 
 132. 133 
 
 Bills V. Bills 
 
 114 
 
 V. Minshull 
 
 112 
 
 Bingham, lie 
 
 448 
 
 Bernstein, Re 
 
 493 
 
 V. Bingham 
 
 184 
 
 Berrien v. Thomas 
 
 783 
 
 V. Clanmoris 
 
 270 
 
 Berry v. Briant 
 
 117, 118 
 
 V. Stewart 
 
 158, 814 
 
 V. Hamilton 
 
 511 
 
 V. Weiderwax 
 
 757 
 
 V. Norris 
 
 48, 80 
 
 Bingham's Appeal 
 
 511c 
 
 V. Skinner 
 
 602 A 
 
 Binion v. Stone 
 
 54, 145 
 
 V. Uslier 
 
 244 
 
 Binks V. Kokeby 597, 787 
 
 792, 795, 796 
 
 V. W led man 
 
 126, 145 
 
 liinney v. Plumly 
 
 330 
 
 V. Williamson 
 
 276, 359 
 
 Binsse v. Page 
 
 432 
 
 Berryhiil's Appeal 851, 912, 918 
 
 Birch, In re 
 
 518 
 
 Bertiiold v. Holmes 
 
 602? 
 
 V. Blagrave 103, 
 
 147, 151, 105 
 
 Bertie v. Falkland 
 
 514 
 
 V. EUames 
 
 217 
 
 Berwick r. ^Murray 
 
 468 
 
 V. Wade 
 
 112, 258 
 
 Besland i\ Hewett 
 
 239 
 
 Birch's Trustees, In re 
 
 612 
 
 Bessey v. Windham 
 
 587 
 
 Bircliall, In re 
 
 264 
 
 Besson v. Eveland 
 
 145 
 
 Bird V. Bird 
 
 456 
 
 Best V. Blackburn 
 
 173 
 
 V. Graham 
 
 863 
 
 V. Campbell 
 
 141, 805 
 
 V. Hunsden 
 
 516 
 
 V. Donmall 
 
 619 
 
 r. Johnson 
 
 386 
 
 V. Storr 
 
 173 
 
 V. Maylniry 
 
 117 
 
 Bethea r. McColI 
 
 612,615 
 
 V. Pograni 
 
 668 
 
 Bethune v. Dougherty 
 
 250 
 
 V. Pickford 
 
 382 
 
 1'. Kennedy 
 
 451, 547 
 
 V. Stride 
 
 5116 
 
 Bettle V. Wilson 
 
 673 
 
 Bird's Estate 
 
 918 
 
 Bett.s V. Betts 
 
 678 
 
 Birdsall v. Hewlett 
 
 575, 903 a 
 
 Betty V. Elliott 
 
 357 
 
 Birdwell v. (Jain 
 
 195 
 
 Beulali Marble Co. v. Mattice 
 
 127 
 
 Hirkett v. Ilibbert 
 
 636 
 
 Beurliaus ?'. Cole 
 
 699 
 
 Birkhamstead School Case 
 
 725 
 
 Bevan's Trusts, In rc 
 
 622 
 
 Birkhead r. Edwards 
 
 84 
 
 Beverley v. Brooke 
 
 818 
 
 Birks V. Micklethwait 
 
 848. 901 
 
 Beverleys r. Miller 
 
 403, 408 
 
 Birley v. Birley 
 
 511a 
 
 Beverly's Case 
 
 191 
 
 Birls V. Betty 
 
 417, 848, 876 
 
 Bhokii V. (Cleveland 
 
 438 
 
 Birmingham" r. Kirwin 
 
 572 
 
 Bibb V. Hunter 
 
 80, 126 
 
 V. Lesan 
 
 511a 
 
 V. McKinley 
 
 639 
 
 Birmingham School, In re 
 
 742 
 
 V. Pope 
 
 680 
 
 Biron v. Mount 
 
 593 
 
 V. Smith 
 
 97 
 
 V. Scott 
 
 875 
 
 Bibhy V- Thompson 
 
 117 
 
 Biscoe r. Jackson 
 
 727 
 
 Bick V. Matthews 
 
 423 
 
 V. Kennedy 
 
 657 
 
 V. Motley 
 
 423 
 
 V. Perkins 
 
 306, 307
 
 xl 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Bishop V. American Preservers' Co. 21 
 
 V. Curtis 327 
 
 V. Halcomb 438 
 
 V. McCellaiid 97 
 
 V. Talbot 216 
 
 Bishop Gore's Charity 701, 714 
 
 Bishop of Oxford v. Leighton 294 
 
 Bissell V. Continental Trust Co. 280 
 
 Bittenger v. Uailroad Co. 589 
 
 Bixler v. Taylor 260 
 
 Bi/.zell V. McKinnon 482 
 
 Black V. Black 
 
 V. Blakely 
 
 V. Creighton 
 
 V. Irwin 
 
 V. Ligon 
 
 V. McCaulay 
 
 V. Kay 
 Blackburn v. Blackburn 
 
 V. Byne 
 Blackburne, Ex parte 
 
 V. Edgeley 
 
 79, 137 
 
 918 
 
 827 
 
 402, 779 
 
 528, 529, 538 
 
 380 
 
 546 
 
 79 
 
 612 
 
 276, 504 
 
 201 
 
 V. Gregsou 232, 236, 237, 239 
 
 V. Stables 359, 360, 366, 390 
 
 Blackeley v. Holton 109 
 
 Blacket v. Langlands 219 
 
 Blackford v. Christian 189 
 
 Blackie v. Clarke 172, 204 
 
 Blacklev v. Fowler 199, 602 v 
 
 Blacklow V. Laws 649, 783 
 
 Blackmore v. Shelby 200 
 
 Blackshear v. Burke 815 b 
 
 Blackstone v. Henworth Hospital 694 
 
 Blackstone Bank v. Davis 386, 386 a 
 
 555, 652 
 
 Blackville ». Ascott 511 6 
 
 Blackwood v. Burrows 419, 453, 778, 851 
 
 Blagden v. Ex parte 626, 632 
 
 Blagge V. Miles 511 c, 610 
 
 Blagrave v. Blagrave 309, 312, 315 
 
 V. Hancock 376, 383, 390 
 
 V. Routh 202 
 
 Blair v. Bass 137 
 
 f. Bromley 172, 236, 801 
 
 V. Nugent 863 
 
 V. Ormond 869 
 
 V. Owles 222 
 
 Blaisdell v. Locke 99 
 
 V. Stevens 836 
 
 Blake v. Allman 621 
 
 V. Blake 82, 918 
 
 V. Bunbury 329 
 
 v. Foster 856 
 
 V. Heyward 218 
 
 V. Hungerford 218 
 
 V. O'Reilly 549 
 
 V. Sanderson 709 
 
 V. Trader's Nat'l Bk. 229 
 
 Blakeley v. Brady 98, 101 
 
 Blakely, Petitioner 460 
 
 Blakeiiey v. Blakeney 117 
 
 Blaker v. Cooper 672 
 
 Blanchard, Re 292 
 
 V. Moore 226 
 
 V. Tyler 221 
 
 Blanchet v. Foster 213 
 
 Bland v. Bland 113, 116, 160, 827 a 
 
 v. Dawes 337, 647 
 
 V. Fleeman 809 
 
 Blandford v. Thackerell 379, 710 
 
 Blanev v. Bianey 566 
 
 Blann iJ. Bell 450, 451 
 
 Blasdell v. Locke 98 
 
 Hlatch V. Wilder 121, 501, 787 
 
 Blatchford v. Woolley 658, 849 
 
 Blauvelt, Re 415, 453 
 
 V. Ackerman 429, 469, 918 
 
 Bledsoe v. Games 232 
 
 Bleeker v. Bingham 367 
 
 Bleight V. Bank 499 
 
 Blenkinsop v. Blenkinsop 213. 641 
 Blennerhasset v. Day 228, 229, 230, 782, 
 
 861, 867 
 
 Blennon's Estate 748 
 
 Blevins v. Buch 573, 677, 802 
 
 Biewitt V. Olin 246 
 
 Blight V. Bank 218, 219, 239 
 
 V. Ewing 765 
 
 V. Schenck 404, 409, 591, 779 
 
 Blin V. Pierce 58, 330 
 
 Blindell v. Hagan 21 
 
 Blinkhorne v. Feast 54, 153 
 
 Bliss V. American Bible Society 701, 724, 
 
 747, 748, 892, 903 a 
 
 V. Bridgewater 260 
 
 V. Matteson 207, 212 
 
 V. West 122 
 
 Blithe's Case 48, 489 
 
 Blithman, In re 927 
 
 Blodgett V. Hildreth 81, 162 
 
 Blogg V. Johnson 468, 472 
 
 Blois V. Hereford 636 
 
 Blood V. Blood 299 
 
 Bloodgood V. Bruen 785 
 
 V. Sears 186 
 
 Bloom V. Rensselaer 602 d, 602 a;, 60266 
 
 V. Waldron 581, 768, 774 
 
 Bloomar, In re 56 
 
 Bloom field v. Evre 245, 871 
 
 V. Stowe Market 724 
 
 Blound V. Bestland 639 
 
 Blount V. Burrow 900 
 
 V. Carroway 602 g 
 
 V. Robeson 863 
 
 Blue V. Everett 855 
 
 V. Marshall 482, 528 
 
 V. Patterson 182, 843, 803 
 
 Blumenthal v. Brainard 702 
 
 Blundell, In re 246, 702, 902 
 
 Blunder v. Barker 201 
 
 Blunt V. Blunt 72 
 
 V. Burrow 87 
 
 Blvholder v. Gilson 75, 137 
 
 Blvth V. Fladgate 846 
 
 BoVrd V. Wilson 234 
 
 Board of Ed. v. Bakewell 700 
 
 Boardman v. Halliday 586, 590 
 
 V. Larrabee 347 
 
 V. Mossman 419 
 
 V. Willard 99 
 
 Boards, In re 568 
 
 Boaz 1'. Boaz 275 
 
 Boazman v. Johnson 585, 596, 597 
 
 Bobb V. Bobb 162 
 
 Bochlert v. McBride 770 
 
 Boddington v. Castelli 345 
 
 Boddv V. Dawes 616 
 
 V. Lefevre 244
 
 INDEX TO CASES CITED. 
 [References are to aectious.] 
 
 Boden v. Jaco 
 Budmihan v. Iloskins 
 Bodiiie I'. Edwards 
 
 r. Moore 
 Bodley v. Goodrich 
 Bodwell V. Nutter 
 Boehl V. WadK.vmar 
 Boehiii I'. Clark 
 
 602/" 
 
 24C, 81.3, 907 
 
 142, 143 
 
 602 bl), W-2f 
 
 5'JO 
 
 82, 128 
 
 n-i 
 
 380 
 
 Bujjai'dus I'. Trinity Church 45 
 
 Bogort I'. Ilertell 501, 7G8 
 
 V. Perry 1'32 
 
 Boggs V. Varner 221, 222 
 
 Bogle V. Bogle 276, 280, <J()0 
 
 Bohannon t". Strespley 803 
 
 Bohm V. Hohin 171, 209, 226 
 
 Bohlen's Estate 248 
 
 Bold V. Hutchinson 359, 301 
 
 Bohrer v. Otterback 902 
 
 Boies V. Benhain 237 
 
 Bolin, In re 82 
 
 Bolles V. State Trust Co. 13 
 
 Bolin V. Head ley 639 
 
 Bolton V. Bolton 107, 108 
 
 V. Curre 848 
 
 V. Deane 871 
 
 V. Gardner 428 
 
 V. Jacks 498 
 
 V. Jeuks 7G5 
 
 V. Lambert 200 
 
 V. Mvers 451 
 
 V. Po'well 859 
 
 V. Stannard 805 
 
 V. Williams 658, 059 
 
 Bomar i'. Mullins 836 
 
 Bond, /'xpiirte 615 
 
 V. Barksdale 225 
 
 V. Brown 228, 229 
 
 V. Hopkins 228, 855 
 
 V. :SIc Watty 890 
 
 V. Mooie 160 
 
 V. Nurse 17 
 
 V. Simmonds 637 
 
 V. Turner 918 
 
 V. Ziegler 225, 814 
 
 Bondlicid V. Hassell 388 
 
 Bondholders of York and Cumberland 
 
 U. K. Co., In re 753 
 
 Bone V. Cook 417, 418 
 
 V. Pollard 136, 144 
 
 Boney v. Hollingsworth 201 
 
 Bonhain v. Newcomb 107 
 
 Bonifaut v. Greenfield 270, 273, 499 
 
 Bonitlion v. Hockmore 904 
 
 Bonn V. Davant 918 
 
 Bonner v. Bonner 573 
 
 V. Holland 828 
 
 Bonney v. Ridgard 225, 228, 709, 809, 810, 
 
 811,855,805 
 
 Bonsall's Appeal 458, 606, 607, 830, 842 
 
 Bonser r. Kinnear 112, 258 
 
 Book r. Justice M. Co. 127 
 
 Booker t'. Anderson 187, 770 
 
 Bool V. Wix 33 
 
 Boon r. Barnes 239 
 
 t'. Murphy 237 
 
 Boone v. Baines 220 
 
 V. Chiles 218, 219, 222, 229, 855, 803 
 
 V. Citizens' Savings Bk. 82 
 
 Booram v. Wells 490, 771, 783 
 
 Booth, Lx parte 
 lie 
 
 V. Alington 
 V. Animerman 
 V. Baptist Church 
 
 xU 
 
 402 
 
 875 
 
 254 
 
 47 
 
 729 
 
 Booth 114, 262, 419, 454, 460, 407, 
 
 508, 848, 849 
 
 V. Bristol County S. Bank 82 
 
 V. Clark 70, 72 
 
 V. Field 315 
 
 V. McXair 690 
 
 V. Oakland S. Bank 82 
 
 V. Pur.-er 475 
 
 V. Sineath 613 
 
 V. Warrington 861 
 
 V. Wilkinson 443 
 
 Bootle V. Bluudell 566, 708 
 
 Boozer v. Teague 133 
 
 Borden v. Sumner 592 
 
 Boreham r. Bignall 476 a, 928 
 
 Borel V. liobbins 709 
 
 Bork V. Martin 131, 142, 299 
 
 Borneman v. Sedlinger 87 
 
 Borough of Hertford v. Poor of 
 
 Hertford 900 
 
 Borst V. Corey 234 
 
 Borum i'. King 98 
 
 Bos V. Ewing 237 
 
 Bosanquet v. Dashwood 192 
 
 Boschette v. Power 820, 827 
 
 Bosken r. Giles 647 
 
 Boskerch v. Herrick 520 
 
 Bosler's Estate 910 
 
 Bosom r. Stratham 88, 90, 93, 210 
 
 Boss V. Goodsall 4G0 
 
 Bostick V. Elliott 426 
 
 V. Wenton 254 
 
 Bostleman r. Bostleman 120, 135 
 
 Bostock V. Blakeney 475, 477, 552. 913 
 V. Floyer 402, 441, 444, 929 
 
 Bostock's Case 379 
 
 Boston V. Boston 641 
 
 Boston, &c. Co. V. Boston 761 
 
 Boston & C. S. Co. V. Reed 166 
 
 Bo.ston Franklinite Co. r. Condit 499 
 
 Boston Safe Deposit & Trust Co. r 
 
 Mixter 
 Bostwick, Matter of 
 
 V. Atkins 
 
 V. Estate of Dickson 
 Bosvil V. Brander 
 Boswell f. Coaks 
 
 V. Cunningham 
 
 V. Dillon 
 
 V. Parker 
 Boswtirth, Iti re 
 Boteler r. Allington 
 Bothen v. McColl 
 Bothomly v. Fairfax 
 Botsford, Jn re 
 
 V. Burr 
 
 Bouch V. Sproule 
 Boughton r. Boughton 
 
 V. James 
 
 V. Langley 
 Bouldin v. Alexander 
 Boultbee r. Stubhs 
 Boulton, Ex parte 
 
 782 
 018 
 
 780 
 615, 017, 
 
 200, 205 
 
 803 
 
 627, 633, 640 
 
 195 
 
 206 
 
 359 
 
 585 
 
 910 
 
 13, 321, 347, 520 
 
 918 
 
 600 
 
 699 
 
 126, 132. 133. 134, 
 
 137, 139, 161 
 
 545 
 
 103, 104, 102 
 
 160, 383, 393 
 
 306 
 
 277, 733 
 
 210 
 
 438
 
 xlii 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Boulton V. Beard 
 
 
 901, 927 
 
 Bourdillon v. Adair 
 
 
 633 
 
 Bourke, In re 
 
 
 511a 
 
 V. Callanan 
 
 
 133, 206 
 
 Bourne v. Buckton 
 
 
 397 
 
 V, Mole 
 
 
 826, 827 
 
 Bourset v. Savage 
 
 
 334, 828 
 
 Boustield V. Hodges 
 
 
 780 
 
 Bouve V. Cottle 
 
 
 595 
 
 Bovey v. Smith 217 
 
 222, 521 
 
 828, 830 
 
 Bowden, Jn re, 
 
 
 863 
 
 V. Bowden 
 
 
 451 
 
 V. Laing 
 
 
 117, 118 
 
 V. Parrish 
 
 
 223 
 
 Bowditch V. Andrew 
 
 
 118, 920 
 
 V. Ayrault 
 
 
 451 
 
 V. Bannelos 
 
 280 
 
 282, 297 
 
 V. Soltj'k 
 
 899, 903 a 
 
 Bowen, In re 
 
 ' 
 
 384 
 
 V. Evans 
 
 
 218, 230 
 
 V. Idley 
 
 
 183 
 
 V. Lewis 
 
 
 358 
 
 V. McKean 
 
 
 127 
 
 V. Penny 
 
 
 437 6 
 
 Bowers v. Clark 
 
 
 673 
 
 V. Heaf 
 
 
 188 
 
 V. Keesecker 
 
 
 324 
 
 V. Seeger 
 
 404 
 
 412, 415 
 
 V. Toronto 
 
 
 207, 430 
 
 Bowes, Ex parte 
 
 
 336, 337 
 
 V. East London 
 
 484, 529, 
 
 851, 872 
 
 V. Strathmore 
 
 
 626, 913 
 
 Bowie V. Berry 
 
 
 324 
 
 Bowker v. Bowker 
 
 
 251 
 
 V. Pierce 
 
 
 465, 918 
 
 Bowlby V. Thunder 
 
 
 112 
 
 Bowler v. Curler 
 
 
 162 
 
 Bowles V. Bowles 
 
 
 231 
 
 V. Drayton 
 
 
 472 
 
 V. Orr 
 
 
 72 
 
 V. Stewart 
 
 
 851 
 
 V. Weeks 
 
 
 277, 287 
 
 Bowling V. Bowling 
 
 
 632 
 
 V. Cobb 
 
 
 918 
 
 V. Winslow 
 
 
 632, 636 
 
 Bowman v. Bates 
 
 
 180 
 
 V. VV'athen 
 
 756, 
 
 757, 855 
 
 Bowman's Appeal 
 
 
 607 
 
 Bowra v. Wright 
 
 
 54 
 
 Boyce v. Corbally 
 
 
 502 
 
 V. Grundy 
 
 
 171 
 
 V. Hanning 
 
 
 506 
 
 V. Stanton 
 
 
 181 
 
 Boycote v. Cotton 
 
 
 584 
 
 Boyd V. Boyd 
 
 77, 137, 
 
 415, 420, 
 
 
 426 
 
 861, 8(13 
 
 V. Cleghorn 
 
 
 77 
 
 V. Gill 
 
 
 875 
 
 V. Hawkins 
 
 195 
 
 917, 918 
 
 V. McClure 
 
 
 127 
 
 V. McLean 
 
 
 126, 137 
 
 Boydell v. Gnlightly 
 
 
 390 
 
 Boyer v. Cockerell 
 
 
 298 
 
 V. Decker 
 
 
 277 
 
 V. Libey 
 
 
 126 
 
 Boyes v. Cook 
 
 
 511c 
 
 Boykin v. Ciples 
 
 51, 240 
 
 277, 647 
 
 Boj'lan V, Deinzer 
 
 
 166 
 
 Boj'le V. Boyle 
 
 
 114 
 
 Boj-ne V. Crowther 
 
 
 119 
 
 Bojnton v. Brastow 
 
 
 195 
 
 " V. Dyer 
 
 
 468 
 
 V, Housler 
 
 
 172 
 
 V. Hubbard 
 
 
 188 
 
 V. Rees 
 
 
 218, 222 
 
 V. Richardson 
 
 
 900 
 
 Boys V. Boys 
 
 
 451, 466 
 
 Boyse v. Rossborough 
 
 
 189 
 
 Brabrook v. Boston Five 
 
 Cts. 
 
 Sav. 
 
 Bank 98, 99, 100 
 
 Brace v. Ormond 903 a 
 
 Bracken v. Beatty 451 
 
 V. Miller 218, 222 
 
 Brackenburj' v. Brackenbury 103, 104, 165 
 Brackenridge v. Holland 195, 205 
 
 Bracket! v. Baum 
 
 
 60266 
 
 Bradford v. Beiheld 294 
 
 344 
 
 408, 494 
 
 V. Brownjohn 
 
 
 196, 533 
 
 V. Burgess 
 
 
 328 
 
 V. Greenway 
 
 
 655, 660 
 
 V. Harper 
 
 
 39 
 
 «;. King 
 
 
 878 
 
 V. Marvin 
 
 
 237 
 
 V. Jlonks 
 
 
 408 
 
 V. Romney 
 
 
 186 
 
 Bradford School of Industry, 
 
 Re 
 
 727 
 
 Bradish v. Gibbs 
 
 
 48, 367 
 
 Bradley v. Chase 
 
 
 185 
 
 v. Emerson 
 
 
 6.54 
 
 V. Luce 
 
 
 133, 843 
 
 V. McBride 
 
 
 230 
 
 V. Peixoto 
 
 
 386 
 
 V. Phil. R. R. Co. 
 
 
 602 c 
 
 Bradlin v. Hord 
 
 
 219, 2-22 
 
 Bradner v. Falkner 
 
 
 547 
 
 Bradshaw v. Bradshaw 
 
 
 414, 614 
 
 V. Ellis 
 
 
 308, 765 
 
 V, Fane 
 
 
 769 
 
 V. Skilbech 
 
 
 380 
 
 V. Thompson 
 
 
 714 
 
 Bradstreet v. Butterfield 
 
 
 282 
 
 V. Kinsella 
 
 
 419 a 
 
 Bradwell v. Catchpole 
 
 416, 
 
 419, 830 
 
 V. Weeks 
 
 
 64 
 
 Brady v. Dilley 
 
 
 910 
 
 V. McKosker 
 
 
 182 
 
 Bragg V. Carter 
 
 
 251 
 
 V. Paulk 
 
 
 82 
 
 Brainerd v. Dunning 
 
 
 597 
 
 Braman v. Oliver 
 
 
 195 
 
 V. Stiles 121, 386 a 
 
 555, 765 
 
 Branihall v. Ferris 118, 386 a, 555 
 
 Bramlet v. Bates 
 
 
 380 
 
 Bran v. Marlborough 
 
 
 219 
 
 Branch v. Griffin 
 
 
 815 c 
 
 V. Ward 
 
 
 656 
 
 Brandeis v. Cochrane 
 
 
 104, 346 
 
 Brandenburg v. Thorndike 
 
 
 920 
 
 Brander v. Brander 
 
 
 544, 545 
 
 Brandon v. Aston 
 
 388 
 
 555, 619 
 
 V. Brandon 
 
 
 347 
 
 V. Carter 
 
 
 264, 277 
 
 V. Hogart 
 
 
 468 
 
 V. Robinson 
 
 
 386, 652 
 
 V. Woodthorpe 
 
 
 633 
 
 Brandt v. Gelston 
 
 
 359 
 
 Brandt's Appeal 
 
 
 569 
 
 Brannin v, Brannia 
 
 
 215
 
 INDEX TO CASES CITED. 
 [References are to sections. ] 
 
 xliii 
 
 Brashear v. Marcy 380 
 
 V. West 438, 585, 592, b'Ji 
 
 Brasier r. Hudson 7'J2 
 
 lirassey v. Chalmers 493, 503, 709 
 
 Bra.sswell v. Moreliead 541 
 
 Brathwaite v. Bratbwaite 431 
 
 Bratt V. Bratt 232 
 
 Braunstein v. Lewis 671 
 
 Brawley v. Catron 233, 235 
 
 Braxton v. State 426 
 
 Bray, Ex parte 910 
 
 V. West 270, 271 
 
 Braybrooke v. Inskip 274, 336, 337, 
 
 597, 801 
 
 Brazelr. Fair 127 
 
 Brazer v. Clark 417, 420, 426 
 
 Brazier r. Camp 907 
 
 Breik v. Cole 212 
 
 Bretkenridge v. Brooks 918 
 
 V. Ornisby 35, 189 
 
 Bredenburg v. Bardin 248 
 
 Bredin v. Kiiigland 918 
 
 Breudon v. Breedon 582, 610, 793 
 
 Breit v. Yeaton 828 
 
 Brenan v. Boyne 357 
 
 Breiidle v. (ierman Kef. Con. 734, 748 
 
 Brennon's Estate 710 
 
 Brent r. Sandwich 734 
 
 Brereton r. Brereton 507, 508, 510, 51 1 
 
 Brest r. Offley 112 
 
 Brett V. Cumberland 536 
 
 V. Forcer 635 
 
 V. Greewell 636 
 
 Brettell, Lx parte 337 
 
 Brevard v. Neely 602 e 
 
 Brewer r. Boston Theatre 242 
 
 V. IJrewer 386 a, 555 
 
 V. Hardy 299 
 
 V. Swirles 467, 669, 849 
 
 V. Vanardsdale 851 
 
 V. Winchester 602 h, 602 » 
 
 Brewerton's Case 693, 701 
 
 Brewster v. Angel 288, 375, 767 
 
 V. Demarest 453 
 
 V. McCall 748 
 
 t'. Power 142 
 
 V. Striker 305,308,312,315 
 
 Briant, /n re, Poulter v. Shackel 027 
 
 Brice v. Hrice 189, 201 
 
 V. Miller 053 
 
 V. Stokes 416, 418, 419, 421. 424, 400, 
 
 467, 508, 589, 849 
 
 Brickell r. Earley 137 
 
 Bride V. Smyth 312 
 
 Bridonbecker v. Lowell 127, 135 
 
 Bridge )■. Beadon 438 
 
 V. Bridge 96, 98, 101, 102, 105, 108 
 
 r. Brown 477, 615, 618, 910, 913 
 
 Bridger v. Rice 770 
 
 Bridgers v. Howell 149 
 
 Bridges V. Longman 708 
 
 r. Pleasants 701, 713, 730, 748 
 
 V. Wilkins 046 
 
 V. Wood 048 
 
 Bridget v. Himes 884 
 
 Bridirman. Jn re 275, 279, 292 
 
 r. (iill 246, 745, 859, 884 
 
 r. Green 71,104,189.211 
 
 Brier, Jn re 813 
 
 Brierley, hi re 295 
 
 Briers v. Hackney 851 
 
 Brigel v. Tug liiver Co. 903 
 
 Briggs V. Davis 334 
 
 V. French 72 
 
 V.Hartley 700,702,718 
 
 V. Hill 238 
 
 V. Light-boats 40. 41 
 
 V. Oxford 390, 540 
 
 V. Palmer 334 
 
 V. Penny 93, 112 
 
 V. Planters' Bank 238 
 
 t". Terrell 757 
 
 V. Titus 681 
 
 V. Wilson 481 
 
 Briggs and Spicer, In re 593 
 
 Brigham r. Hendersoa 72 
 
 I'. Newton 202 
 
 Bright V. Bright 109 
 
 V. Egerton 864 
 
 V. Knight 133 
 
 V. Larcher 570 
 
 V. Legerton 850 
 
 V. North 478, 915 
 
 Brightwell i'. Jordan 815 6 
 
 Brinckerhoff v. Lansing 602 e« 
 
 Bringhurst v. Cuthbert 311 
 
 Brinkerhoff v. Yanschoven 232 
 
 Brinkley v. Willis 863, 872 
 
 Bvinley v. Grou 547 
 
 Brinsden v. Williams 846 
 
 Brinton's Estate 900 
 
 Brisbane v. Stoughton 602 g, 602 bb 
 
 Brisco V. Minah C. M. Co. 234 
 
 Briscoe v. Briscoe 361 
 
 V. Bronaugh 239 
 
 V. State 919 
 
 Bristed v. Williams 242 
 
 Bristol V. Hungerford 152 
 
 ('. Whitton 737 
 
 Bristow V. Bristow 699 
 
 British Museum v. White 704 
 
 British South Africa Co. v. Companhia 
 
 de Mo9ambique 
 Brittle, in re 
 Brittltbank v. Goodwin 
 Britton v. Lewis 
 V. Twining 
 Bro:id V. Bevan 
 Broadhurst v. Balguy 
 
 72 
 
 671 
 863 
 768 
 358 
 112 
 261, 417, 418, 419. 
 
 199, 414, 
 
 463, 466, 508, 509, 851 
 Broadrup v. Woodman 85 
 
 Broadway Nat'l Bk. v. Adams 827 a 
 
 Brock I'. Barnes 202 
 
 V. Brock 79, 142, 226 
 
 V. Phillips 2->4 
 
 Brock lebank r. Johnson 118 
 
 Brocksopp V. Barnes 904, 906, 910 
 
 Brockway Maiiuf. Co., In re 242 
 
 Broder v. Coiiklin 
 Broderick r. Broderick 
 Brodie r. Barry 
 
 V. St. Paul 
 Brodley's Ann. 
 Brogden v. Walker 
 Brokaw r. Brokaw 
 Brome v- Berkeley 
 Bromtield , A> pa rte 
 
 V. W^'therley 
 
 747 
 
 195, 865 
 171 
 
 605, 818 
 
 891, 892 
 927 
 189 
 873 
 578 
 
 605, 611 
 464
 
 xliv 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Bromlev v. Holland 873, 878 
 
 V. kelley 460, 461, 467 
 
 V. Smith 885 
 
 Brompton v. Barker 219 
 
 Bronsoii v. Kinsie 602 c, 602 x 
 
 V. Strouse ' 706 
 
 Brooke v. Berry 172, 187, 189, 206 
 
 V. Brooke 32, 112, 116, 248, 664 
 
 V. Bulkeley 217, 828 
 
 V. Ki:ig 122 
 
 V. Turner 511 c 
 
 Brooke's A])p. 82 
 
 Brook er v. Brooker 890 
 
 Brookman v. Hales 157, 196 
 
 Brooks V. Brooks 51, 843 
 
 V. Burt 878 
 
 V. Dent 127 
 
 r. Egbert 918 n 
 
 V. Fowle 133 
 
 V. Hatch 68 
 
 V. Jackson 917 
 
 V. Jones 312 
 
 V. Marbury 591, 593 
 
 V. Kaynokls 827 a 
 
 Brookshank i'. Smith 857 
 
 Broom v. Curry 540 
 
 V. Summers 734 
 
 Broomfield, Ex parte 611 
 
 Brophy v. Bellamy 612 
 
 V. Lawler 171 
 
 Broswell v. Downs 348 
 
 Brothers v. Brothers 602 iv 
 
 V. Porter 132, 136, 836 
 
 Brotherton v. Hutt 222 
 
 Brough V. Higgins 553 
 
 Brougham v. Paulett 263, 908 
 
 Broughton v. Brand 127 
 
 V. Broughton 432, 895, 904 
 
 V. James 662 
 
 V. Langlev 298 
 
 Browell v. Reid 273, 818, 819 
 
 Browers v. Fromm 748 
 
 Brown, Ex parte 282 
 
 In re 498, 701, 730, 773 
 
 V. Addison G. Hospital 378 
 
 V. Alden 668 
 
 V. Anderson 760 
 
 V. Armistead 184, 500 
 
 V. Bamford 670 
 
 V. Bartie 602 i, 602 aa, 602 hb 
 
 V. Black 246 a 
 
 V. Blount 883 
 
 V. Bontee 347 
 
 V. Bradford 96, 216 
 
 V. Brown 77, 83, 93, 206, 212, 277, 
 
 287, 315, 668, 672, 682 
 
 V. Bryant 358 
 
 V. Budd 28 
 
 V. Campbell 465 
 
 V. Carter 201 
 
 V. Casamajor 117, 612, 620 
 
 1'. Cave 133 
 
 V. Cavendish 98, 104, 593 
 
 V. Chambers 511 h 
 
 V- Cheney 126 
 
 V. Cherry 874 
 
 V. Clark 632, 633, 634, 636, 649 
 
 V. Concord 724, 748 
 
 V. Cowell 195 
 
 Brown v. Cross 
 V. De Tastet 
 V. Dewey 
 V. Doane 
 V. Dysinger 
 V. East 
 V. Elton 
 I'. French 
 V. Gellaty 
 V. Gilman 
 V. Groombridge 
 V. Guthrie 
 V. Heathcote 
 V. Hicks 
 
 467, 850, 869 
 430, 454, 470, 906 
 2-26 
 245 
 215 
 231 
 627 
 456 
 551 
 237 
 908 
 141 
 239 
 556 a 
 
 V. Higgs 68, 112, 160, 248, 249, 251, 256, 
 257, 258, 272, 507, 508, 714 
 
 V. Hobson 499, 500 
 
 ». How 900 
 
 V. Hummell 742 
 
 V. Ingham 184 
 
 v. Johnson 648 
 
 V. Jones 151, 157, 158 
 
 V. Kelsey 263, 574, 748 
 
 V. Kemper 675 
 
 V. Kennedy 202 
 
 V- Knox 592 
 
 V. Lake 670 
 
 V. Lambert's Adm'rs 846 
 
 V. I-amphear 186 
 
 V. Litton 457, 464, 906 
 
 V. Lockhart 880, 891, 892, 900 
 
 V. Lutheran Church 734 
 
 V. Lynch 215 
 
 V. Lyon 592 
 
 V. McGill 671, 827 a 
 
 V. Meeting St. Baptist Sec. 737, 743 
 
 V.Meigs 254,498,511a 
 
 V. Mercantile Trust Co. 104 
 
 V. Miller 451 
 
 V. Minturn 593 
 
 V. Oakshott 823 
 
 V. Paull 118, 612, 620 
 
 V. Petnev 137 
 
 V. Phillips 252 
 V. Pocock 250, 251, 252, 258, 652, 671 
 
 V. Postall 661 
 
 v. Pring 185 
 
 V. Eamsden 305 
 
 V. Ricketts 429, 464, 468 
 
 V. Sansome 468, 472 
 
 V. Selwvn 244 
 
 V. Smith 615 
 
 V. Southhouse 464, 472 
 
 V. Stead 347 
 
 V. Stoughton 160, 393 
 
 V. Temperly 616 
 
 V. Vanlier 232, 239 
 
 V. "Whiteway 309, 312 
 
 V. Williamson 386 a 
 
 V. Wood 218 
 
 V. Wright 397, 455, 456, 459, 843 
 
 V. Yeall 713, 719 
 
 Brown's Case 610 
 
 Estate 603 
 
 Trusts 438, 668 
 
 Will, /Ze 119 
 
 Browne v. Stamp 137 
 
 Browne's Hospital, Re v. Stamford 727 
 
 Brownell v. Downs 259
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 xlv 
 
 Brownell r. Stoddard 145 
 
 Browuinfi v. Hart 590 
 
 v. Ileadley 627, 632, 633, 636, 639 
 
 Brownlie v. Campbell 178 
 
 Bruce v. Child 229, 2.iU 
 
 v. Presbytery, &c. 698, 7IJ9 
 
 V. Roiiey 12G, I'-io 
 
 V. Kuler 179 
 
 Bruch I'. Laiitz 195, 205, 428, 598, 795, 853 
 
 Bruderiell r. Bougbtoii 92, 570 
 
 Brueu r. Gillet 415 
 
 I', lloiie 855 
 
 Bruin v. Knott 613, 615 
 
 Brunifield r. I'almer 238, 239 
 
 Bruuimell r. IMcl'herson 01 
 
 Bruniridge v. Bruniridf^e 417 
 
 Brundage i^. Ciiene worth 96 
 
 Bruiidy v. Maytield 127 
 
 Brunei'. Martyn 519 
 
 Bruner v. First Nat. Bank 122 
 
 Brunnenmayer v. Buhre 732. 742 
 
 Brunsden v'. Wooldredge 255, 25<>, H'Ji) 
 
 Brunsen v. Hunter 112, 115 
 
 Brunson v. Henrv 104, 145 
 
 V. Martin ' 252 
 
 Brush r. Kinsley 2.38 
 
 r. Ware 224 
 
 Bryan r. Bradley 2'J9 
 
 V. Brvan G27 
 
 V. CoUins 393 
 
 V. Duncan 195, 649 
 
 I'. Howland 82 
 
 V. McNaughton 206 
 
 V. Weems 312 
 
 Bryant, In re 248, 612 
 
 V. Craige 471 
 
 V. Hendricks 137, 226 
 
 r. Mansfield 165 
 
 V. Russell 594, 660, 914 
 
 Brydges v. Brvdgea 357, 358, 540 
 
 V. Wotton 272 
 
 Bryon v. Metropolitan, &c. Co. 752 
 
 Bryson r. Nichols 100 
 
 Buchanan v. Deshon 5') 
 
 V. Hamilton 30, 275, 282, 283 
 
 V. Harrison 13, 347 
 
 V. Hart 766 
 
 V. Matlock 183 
 
 V. Monroe 602 li 
 
 Buck, Jn re 699, 730 
 
 V. Gibson 784 
 
 V. Paine 127 
 
 V. Pike 126, 1-33, 137 
 
 V. Swazey 132, 166, 244 
 
 V. Ullrich 127 
 
 V. Vorei3 212 
 
 V. Warren 132 
 
 Buckels V. Carter 891 
 
 Buckeridge v. Glasse 260, 275, 467, 835, 
 
 849, 851 
 
 Buckford v. Wade 141 
 
 Backhaul r. Smith 910 
 
 Buckintrham v. Clark 171 
 
 V. Morrison 915 a 
 
 Buckintrhamshire v. Drury 34, 53 
 
 V. Hobart 348 
 
 Auckland V. Pocknell 235, 230 
 
 Buckles V. LaiTerty 205 
 
 Buckley v. Buckley 570 
 
 Buckley v. Frasier 
 
 371 
 
 17. Howell 
 
 774 
 
 V. Laiiauze 
 
 196 
 
 V. Wells 
 
 678 
 
 Bucklin v. Bucklin 
 
 341 
 
 Buckner v. (Jaicott 
 
 863 
 
 Budd V. Basti 
 
 232 
 
 V. Hiler 
 
 275 
 
 V. Slate 
 
 380 
 
 Budge r. Gummon 
 
 458 
 
 Budgett V. Budgett 
 
 401, 902 
 
 Buei V. Buckingham 
 
 195 
 
 V. Yeherton 
 
 272 
 
 Buerhaus r. iJe Saussure 
 
 465 
 
 Buffalo K.K.Co.D.Lamson 127,142,207,759 
 
 Uul'falow V. Buffalow 189, 194, 203 
 
 Buffington I'. Maxam 112, 131 
 
 Buford V. Caldwell 172 
 
 V. M'Kce 109 
 
 Bugden v. Tylee 822 
 
 Bugg V. Franklin 638 
 
 iiuggins V. Yates 112, 113, 116, 151 
 
 Biilbv, Ex parte 051 
 
 Bulkley V. I)e Peyster 259 
 
 V. Redmond 183 
 
 V. Staats 815 6 
 
 V. Wilford 171, 178, 181, 182, 195 
 
 Bull, In matter of 499, 610 
 
 V. Bull 112, 251, 254, 255, 559, 748 
 
 V. Odell 873 
 
 V. Vardv 116, 248, 252 
 
 Bullard v. Chandler 262, 699, 7-32 
 
 Bulleiikainp v. Bullenkamp 142 
 
 Bullin i'. Dillage 686 
 
 Bullock, lie 827 a 
 
 V. Knight 633 
 
 V. Mcnzies 634 
 
 V. Sadlier 220 
 
 V. Stones 379, 616, 622 
 
 Bullowa V. Orgo 243 
 
 Bul[)in V. Clark 652, 657 
 
 Buingarner v. Coggswell 412, 501 
 
 Bump V. Pratt 97 
 
 Bunipus V. Platncr 218 
 
 Bunburv r. Bunburv 71, 72 
 
 Bui ice V. Reed 602 r, 602 s, 602 t, 602 v 
 
 Bundy i\ Bundy 38 
 
 V. Monticello 828 
 
 Bunn, In re 622 
 
 V. Winthrop 98, 103, 104, 109, 162, 307 
 
 V. 331 
 
 Bunner v. Storm 511, 783 
 
 Bunnett v. Foster 885 
 
 Biiiitin V. French 232, 237 
 
 Burbank r. Burbank 732 
 
 V. Sweenej' 252 
 
 V. Whitney 46, 724, 748 
 
 Burch r. Brcckenridge 659, 660 
 
 Hurcliett v. Durdant 306 
 
 Burden r. Burden 904, 906 
 
 )'. Sheridan 135 
 
 Burdett r. Spilsbury 511 b 
 
 V. WiUet 835 
 
 Burdick f. Garrick 468, 471 
 
 !•. Goddard 282, 503 
 
 Burdon r. Burdon 665 
 
 V. Dean 632, 633, 635 
 
 Buren v. Buren 127 
 
 Burge V. Brutton 432. 910
 
 xlvi 
 
 Burger v. Duff 
 
 V. Potter 
 Burges v. Lamb 
 Burgess v. Burgess 
 
 V. Fairbanks 
 
 V. Knapp 
 Smith 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 402 
 
 540, 770 
 
 272 
 
 238 
 
 763 
 
 72 
 
 V. Wlieate 8, 15, 40, 64, 217, 232, 248, 
 301, 321, 323, 325, 327, 357, 
 427, 434. 747, 828, 891 
 
 Burgoyne v. Fox 
 Burgwyn v. Daniel 
 Burham r. James 
 Burke v. Adair 
 
 V. Chrisman 
 
 V. Gray 
 
 V. Jones 
 
 V. Roper 
 
 V. Tiiite 
 
 V. Valentine 
 Burkett V. Wliittemore 
 Burleigh v. Clough 
 Burleson v. McDermott 
 Burley v. Russell 
 Burling V. Newlands 
 Burlingame v. Robbins 
 Burlington Uni. v. Barrett 
 Burmester v. Norris 
 Burn V. Carvalho 
 Burnaby v. Baillie 
 Burnet v. Brundage 
 Burnett v. Davis 
 
 V. Denniston 
 
 V. Kinnaston 
 
 V. Preston 
 Burne}' v. McDonald 
 
 V. Spear 
 Burnham v. Barth 
 
 V. Bennett 
 
 V. Dalling 
 Bumly V. Evelyn 
 Burns v. Allen 
 
 V. Ford 
 
 V. Taylor 
 Bumside v. Wayinan 
 Burr V. McEwen 
 
 V. Sherwood 
 
 ■17. Sims 
 
 V. Smith 
 Burr's Ex'r 
 Burrage, Tn re 
 Burrill v. Boardman 
 
 577, 785 
 
 869 
 
 863 
 
 770 
 
 238 
 
 237 
 
 600, 601 
 
 710 
 
 658 
 
 119, 308 
 
 511 c 
 
 316 
 
 223 
 
 170 
 
 77, 827 a 
 
 239 
 
 90 
 
 486 
 
 68, 105 
 
 06 
 
 782 
 
 647 
 
 602 q, 602 X, 602 bb 
 
 641 
 
 17 
 
 64 
 
 918 
 
 828 
 
 639 
 
 900 
 
 385 
 
 568 
 
 929 
 
 235 
 
 95 
 
 526, 527, 780, 894, 910 
 
 640 
 
 308, 499, 769 
 
 701, 724, 730, 748 
 
 694 
 
 248 
 
 382, 730, 732, 748 
 
 V. Shell 411, 413, 417, 420, 460, 466 
 Burritt v. Silliman 259 
 
 Burrough v. Philcox 248, 250, 251, 2.58 
 
 Burroughs v. De Couts 
 Burrows v. Alter 
 
 V. Gore 
 
 r. Greenwood 
 
 V. Lncke 
 
 V. Rapland 
 
 V. Walls 
 
 V. Williams 
 Burrus v. Meadors 
 Burson's Appeal 
 Burt V. Dennett 
 
 V. Freeman 
 
 V. Gamble 
 
 V. Gill 
 
 104 
 596 
 863 
 900 
 171 
 182 
 467, 851 
 821 
 863 
 676 
 877 
 800 
 223 
 472 
 
 Burt V. Herron 
 
 
 119 
 
 V. Sturt 
 
 
 397, 584 
 
 Burling v. Stonard 
 
 
 809, 815 
 
 Burton, Ex parte, 
 
 
 246, 848 
 
 V. Cook 
 
 
 119 
 
 V. Hastings 
 
 
 361 
 
 V. Mount 
 
 
 450, 451 
 
 V. Pierpont 
 
 
 647 
 
 V. Wookey 
 
 
 904 
 
 Burton's Appeal 
 
 
 737 
 
 Burtt V. Wilson 
 
 
 232 
 
 Burtt's Est., Re 
 
 
 340, 495 
 
 Bury V. Oppenheim 
 
 
 188, 201 
 
 Bush V. Allen 
 
 
 310 
 
 V. Bush .219, 
 
 221, 764, 
 
 836, 877 
 
 V. Marshall 
 
 
 232 
 
 V. Shearman 
 
 
 197 
 
 V. Stamps 
 
 
 602 jB 
 
 V. Stanley 
 
 
 126 
 
 Bush's Appeal 
 
 
 299, 901 
 
 Bushby v. Munday 
 
 
 72 
 
 Bushell V. Bushell 
 
 
 5116 
 
 Bushnell v. Parsons 
 
 
 118 
 
 Bushong V. Taylor 
 
 437 a, 437 b, 766 
 
 Bust V. Wilson 
 
 
 162 
 
 Butcher v. Johnson 
 
 
 509 a 
 
 V. Musgrove 
 
 
 69 
 
 Butcher, Ex parte 
 
 
 332 
 
 Butler, In re 
 
 
 560 
 
 V. Bray 
 
 
 414, 505 
 
 V. Butler 
 
 454, 647, 
 
 873, 878 
 
 V. Carter 
 
 
 863 
 
 V. Dun comb 
 
 578 
 
 579, 768 
 
 V. Gazzam 
 
 
 5116 
 
 V. Godlej' 
 
 
 347 
 
 V. Harrison Land Co. 
 
 242 
 
 t). Haskell 
 
 
 187 
 
 V. Hildreth 
 
 
 596 
 
 ». Hyland 
 
 
 865 
 
 V. Ladue 
 
 
 mgg 
 
 V. Merchants' Ins. Co. 58, 14^ 
 
 , 146, 147 
 
 V. Portarlington 
 
 
 82 
 
 V. Prendergast 
 
 
 873, 878 
 
 V. Robertson 
 
 
 680 
 
 V. Rutledge 
 
 
 133 
 
 V. Trustees 
 
 
 T20, 729 
 
 V. Van Wyck 
 
 
 591 
 
 V. Weeks 
 
 
 166 
 
 Butler & Baker's Case 
 
 
 270 
 
 Butler's Trusts, In re 
 
 
 678 
 
 Buttanshaw v. Martin 
 
 
 520 
 
 Butterbaugh's App. 
 
 
 554 
 
 Butterfield, Re 
 
 
 83 
 
 V. Reed 
 
 
 382 
 
 Buttrick v. Holden 
 
 
 814 
 
 Butts V. Wood 
 
 
 207 
 
 Buxton V. Buxton 
 
 
 439 
 
 Bvam V. Bvam 294 
 
 , 364, 503 
 
 , 505, 807 
 
 Byant v. Pickett 
 
 
 918 
 
 Bybee v. Thorp 
 
 
 618 
 
 Byers v. Danley 
 
 
 139 
 
 V. Wacknian 
 
 
 137 
 
 Byington v. Moore 
 
 
 206 
 
 Byne v. Blackburn 
 
 113 
 
 , 117. 612 
 
 Bynum v. Frederick 
 
 
 678 
 
 Byrchall v. Bradford 
 
 263, 462, 
 
 469, 574, 
 844, 849 
 
 Byrd v. Bradley 
 
 
 590 
 
 Byrne v. Frere 
 
 857 
 
 , 861, 86T
 
 INDEX TO CASES CITED. 
 [ReferenceB are to sections.] 
 
 xlvii 
 
 Byrne v. Gunning 
 V. Norcott 
 V. Van Iloesen 
 
 Byron i'. liayner 
 
 D-20 
 
 463, 472, 'JOO 
 
 G()8 
 
 I'M 
 
 c. 
 
 Cadburv v. Duvall 559, 598, 795, 797 
 
 Cado I'.'Davis 1-27 
 
 Cadcll r. I'almer 379, :i8() 
 
 V. Wilcoi'ks 511 b 
 
 Cadnian v. Horner 176 
 
 Cadof^aii V. Essex 4<)() 
 
 V. Ewart 308, 315, 4'.)9 
 
 1'. Keniiett 542 
 
 Cadwaladcr's App. 195, 774 
 
 Cadwell's Hank, Re 901 
 
 Cafe V. Bent 293, 294, 450, 474, 508 
 
 Caffev 1'. MfMichael 018 
 
 CafYrey v. Darby 438, 847, 900, 910 
 
 Cage I'. Cassidy 72 
 
 Caf^win v. Buerkle 131 
 
 Caliill V. Cahill 647 
 
 Calioun V. Robinson 2;i2 
 
 Cain f. Cox 76 
 
 Cairns v. Chaubert 547, 554, 918 
 
 V. ("olbura 147 
 
 V. Grant IW 
 
 Calais Steamboat Co. v. Van Pelt 814 
 
 Caldecott v. Brown 475, 477, 552, 913 
 
 I'. Caldecott 551 
 
 Caldwell V. Brown 437 a, 783 
 
 V. I'aldwell 137 
 
 V. Carrington 217 
 
 V. Chapline 602 ^W 
 
 V. Fulton 76 
 
 V. Lowden 328 
 
 «. Williams 97, 109, 111, .591 
 
 Calhoun v. Burnett 223, 843 
 
 V. Calhoun 65.") 
 
 V. Ferguson 546, 547 
 
 r. King 818 
 
 Calkins r. Ishell 60266, 602/ 
 
 V. Lock wood 68 
 
 V. Long 672 
 
 Call i". Ewiiig 421 
 
 V. Gibbons 188 
 
 Callaghan v. Hall 891, 918 
 
 Callahan v. Patterson 675 
 
 Callender v. Calgrove 230 
 
 V. Kevstone 891 
 
 Call is I'. Folsom 8t;3 
 
 Callow t). Howie 654, 657, 6.-)9 
 
 Calloway v. Calloway 453 
 
 V. Wetherspoon 191 
 
 Calmes, Ex pnrte 458 
 
 Calvert v. Eden 2!t9 
 
 V. Godfrey 605 
 
 Calvin v. Currier 677 
 
 Cahvell's Ex'r v. Prindle's Adm'r 476 
 
 Cambridge v. Kous 160 
 
 Camden v. Anderson 131 
 
 V. Bennett 126, 145 
 
 V. Benson 1 18 
 
 f. Vail 237. 685 
 
 Cameron r. Irwin 602 J, 602 a- 
 
 V. Mason 232 
 
 V. Nelson 79 
 
 Cameron and Wells, Re 367 
 
 Camp, In re 212 
 
 Cauipati r. Campan 247 a 
 
 Campbell v. Baldwin 2.32, 2.37 
 
 V. Campbell 126, 129, 228, 441, 456, 
 
 554, 905 
 
 V. Carter 184 
 
 V. Day 438 
 
 V. Dearborn 226, 602 6 
 
 V. Drake 128, 135 
 
 V. First Nat. Bank 124 
 
 V. Foster 386 a 
 
 V. Foster Ass'n 511 6 
 
 V. French 630 
 
 V. Graham 869 
 
 V. Hamilton 33U 
 
 V. Harding 380 
 
 V. Hooper 35 
 
 V. Home 476 a, 511 a, 901, 922, 928 
 
 V. Johnston 195, 205, 786 
 
 V. Kansas City 727 
 
 V. Leach 530 
 
 V. McLain 209, 851 
 
 V. Miller 456, 914 
 
 V. Moulton 210 
 
 V. Prestons 321, 329 
 
 V. Kadner 741 
 
 V. Sheldon 93 
 
 V. Walker 128, 195, 197, 770, 869 
 
 V. Wallace 93 
 
 V. Williams 468 
 
 Campbell's Estate 109 
 
 Trusts, In re 51 
 
 Campden's Charities, Re 727 
 
 Canal Bank v. Cox 591, 592 
 
 Can by v. Lawson 367 
 
 Candler v. TiUett 419, 421, 422, 424, 440 
 
 Caiidv V. Marcy 186 
 
 CaneV. Allen 197, 202 
 
 V. Roberts 437 
 
 Canev v. Bond 438. 440 
 
 Cantield v. Bostwick 570, 918 
 
 Cann v. Cann 185 
 
 Cannel v. Buckle 34 
 
 Canning v. Kensworthy 122 
 
 Cannings v. Flower 616, 619 
 
 V. Hicks 13 
 
 Cannon v. Handley 171 
 
 Canoy v. Troutman 17, 328, 334 
 
 Cant lev. In re 338 
 
 Cape V. Bent 284, 293, 294, 450, 474, 508 
 
 V. Cape 118, 647, 649 
 
 Capehart v. Huey 891, 894 
 
 Capel V. Wood 533 
 
 Caperton v. Callson 891 
 
 Capital Nat. Bank v. Coldwater Nat. 
 
 Bank 44 
 
 Caplo V. McCollum 126 
 
 (^aplin's Will 510 
 
 Caplingor v. Stokes 127, 200 
 
 V. Sullivan 633 
 
 Capron v. Attleborough Bank 199 
 
 Cardigan v. Montague 530 
 
 (^arc V. Ormond 821 
 
 Carew v. .Fohnson 904 
 
 Carew's Case 178. 179 
 
 Carey r. Brown 815 c 
 
 V. Callan 1.37 
 
 V. Goodinge 244
 
 xlviii 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Carey r'- Kemper 
 
 8156 
 
 Carter v. Balfour 570 
 
 724, 726, 748 
 
 V. Kawson 
 
 22(J 
 
 V. Bank of Georgia 
 
 239 
 
 Carleton v. lia.uk 
 
 627, 028 
 
 V. Bennett 
 
 803 
 
 V. Dorset 
 
 2ia 
 
 V. Bernadiston 
 
 317 
 
 Carley r. Graves 
 
 8:J7 
 
 r. Carter 218,223,261, 
 
 202, 627, 628, 
 
 Carniichael v. Foster 
 
 828 
 
 633, 672, 
 
 673, 676, 829 
 
 V. Huglies 
 
 G15 
 
 V. Cutting 
 
 424, 462, 408 
 
 V. Trustees 
 
 43 
 
 V. Gibson 
 
 82, 83 
 
 V. Wilson 
 
 615, OlS 
 
 1'. Home 
 
 428, 431 
 
 Came v. Lons; 
 
 704, 712 
 
 V. McManus 
 
 204 
 
 Games v. Colburn 
 
 102 
 
 r. Montgomery 
 
 357 
 
 v. Ilulibard 
 
 2;3'j 
 
 V. RoUand 
 
 618 
 
 V. Polk 
 
 783, 78(3 a 
 
 V. T.igt;art 
 
 645 
 
 Carney v. Byron 
 
 520 
 
 I'. Ulilein 
 
 805 
 
 D.'Kain 259,312, 
 
 315, 448, 920 
 
 V. Wolf 
 
 748 
 
 Carow V. Mo watt 
 
 8'Jl 
 
 Carter and Kenderdine's Contract, In 
 
 Carpenter, lie 
 
 277, 284 
 
 re 
 
 593 
 
 V. Am. Ins. Co 
 
 171 
 
 Carter Bros. v. Challen 
 
 126, 815 c 
 
 V. Cameron 
 
 705 
 
 Carteret v. Carteret 
 
 351 
 
 V. Canal Co. 
 
 230, 8G3 
 
 Cartledge v. Cutliff 
 
 471 
 
 V. Carpenter 
 
 441 
 
 Ciirtmell v. Perkins 
 
 863 
 
 V. Elliott 
 
 1U2 
 
 Cartwright, Jn i-e 
 
 477 
 
 V. Heriot 
 
 201 
 
 V. Pettus 
 
 72 
 
 V. Leonard 
 
 680 
 
 V. Wise 
 
 143, 144, 147 
 
 V. Marnell 
 
 58, 345 
 
 Caruthers v. Williams 
 
 133 
 
 V. Miller 
 
 748 
 
 Carver v. Bowles 
 
 511a 
 
 V. Mitchell 
 
 686 
 
 I'. Richards 
 
 511a, 808 
 
 Carpenter's Appeal 
 
 900 
 
 Carver's Estate 
 
 408 
 
 Estate 
 
 181 
 
 Carvill v. Carvill 
 
 121 
 
 Carr, £x parte 
 
 171 
 
 Carwardiue v. Carwardine 
 
 298. 379 
 
 V. Atkinson 
 
 254 
 
 Gary v. Abbott 
 
 718, 724. 729 
 
 V. Bedford 
 
 256, 510 
 
 V. Cary 
 
 112, 116 
 
 V. Bob 
 
 803 
 
 V. Eyre 
 
 217 
 
 V. Burlington 
 
 585, 597, 600 
 
 V. Mansfield 
 
 200 
 
 V. Eastabrook 
 
 633 
 
 V. Whitney 
 
 328 
 
 V. Ellison 
 
 326 
 
 Cary Library v. Bliss 
 
 700. 727 
 
 V. Erroll 
 
 373 
 
 Casaday v. Bosler 
 
 602 ee 
 
 V. Halliday 
 
 35 
 
 Casborn v. English 
 
 322 
 
 V. Hertz 
 
 411 
 
 Casborne v. Scarfe 
 
 324, 336 
 
 V. Hilton 
 
 225, 814, 801 
 
 Casburne v. Casburne 
 
 323 
 
 V. Hobbs 
 
 232 
 
 Case V. Codding 
 
 126, 132 
 
 V. Houser 
 
 209 
 
 V. Gerrish 
 
 212, 591 
 
 V. Laird 
 
 468 
 
 V. Green 
 
 671 
 
 V. Living 
 
 117, 118 
 
 V. James 
 
 217 
 
 V. Richardson 
 
 299 
 
 V. Kelly 
 
 477, 915 a 
 
 V. Taylor 627, 
 
 632, 635, 640 
 
 Casey v. Wiggin 
 
 640 
 
 Carr, petitioner 
 
 5116 
 
 Casey's Estate 
 
 891 
 
 Carrick v. Errington 
 
 160 
 
 Caspari v. Cutcheon 
 
 460 
 
 Carrier's Appeal 
 
 918 n 
 
 Cass V. Cass 
 
 552 
 
 Carrigan v. Drake 
 
 520 
 
 V. Stearns 
 
 891 
 
 Carrington v. Abbott 
 
 559 
 
 Cassamajor v. Pearson 
 
 550 
 
 V. Goddin 
 
 602 an 
 
 Cassard v. Hinman 
 
 172 
 
 Carritt v. Real & P. A. Co. 
 
 849 
 
 Cassell, Ex parte 
 
 910,914 
 
 Carroll v. Connett 
 
 880 
 
 V. Ryss 
 
 782, 783 
 
 V. Farmers' Bank 
 
 72 
 
 Cassell's' Appeal 
 
 748 
 
 V. Lee 
 
 647 
 
 Cassidy v. Hynton 
 
 507 
 
 V. Moore 
 
 918 
 
 v.'McDaiiiel 
 
 881 
 
 V. Renick 
 
 361 
 
 Castle V. Castle 
 
 118, 620 
 
 V. Shea 
 
 252 
 
 Caswell r. Sheen 
 
 56 
 
 V. Stewart 
 
 501 
 
 Cater v. Eveleigh 
 
 601, 675 
 
 V. Van Renselaer 
 
 232 
 
 Cater' s Trust 
 
 922, 925 
 
 Carroll Iron Co. v. Maclaren 
 
 72 
 
 Cathcart v. Nelson 
 
 82, 163 
 
 Carruth v. Carruth 
 
 264 
 
 Cathorpe, F.x pnrte 
 
 457 
 
 Carruthers v. Carruthers 
 
 404 
 
 Catlin r. Eagle Bank 
 
 31, 588 
 
 Carsey v. Barshaw 
 
 416 
 
 Caton V. Caton 
 
 208 
 
 Carson v. Carson 66, 250 
 
 254, 2R2, 511 
 
 V. Pembroke 
 
 239, 837 
 
 V. Murray 
 
 672, 673 
 
 V. Rideout 
 
 665 
 
 V. O'Bannon 
 
 644 
 
 Cattlin V. Brown 
 
 385 
 
 Carter v. Abshire 
 
 774 
 
 Caul field v. Maguire 
 
 554
 
 INDKX TO CASES CITP:D, 
 [References are to Bections.] 
 
 xlix 
 
 Cavagnaro i'. Don 129 
 
 Cave V. Cave 34 
 
 Caveiider r. Cavender 275 
 
 Cavendish V. Fleming 018 
 
 I'. Mercer 616, 01 'J 
 
 Caverly v. I'UWp 87;{ 
 
 Cavin v. Gieason 44, 828 
 
 Cawood r. Tlmnipson 15'J 
 Cecil V. Butcher 103, 104, 105, 161, 1G2, 
 
 1(15 
 
 Cecil Bank v. Snivelv 120 
 
 Cecil Xat. Bank r. fiiurber 122 
 
 Central Bridge v. Baily 754 
 
 Chadwii-k v. Chadwick 82 
 
 V. Heat ley 
 
 
 
 922, 925 
 
 Chadwin, /\x parte 
 
 
 
 574 
 
 Chaffe r. Watts 
 
 
 
 650 
 
 Chatfees r. Ui>k 
 
 
 
 58'..' 
 
 Challiii V. Hull 
 
 
 
 200 
 
 Chahoon r. Hollenback 
 
 
 
 330 
 
 Cliaigneau v. Bryan 
 
 
 
 260 
 
 Chaires v. Brady 
 
 
 
 187 
 
 Chalfant v. Williams 
 
 
 
 220 
 
 Challen r. Shippam 
 
 
 
 402, 403 
 
 Chalmers v. Bradley 
 
 228, 
 
 230, 
 
 274, 287, 
 
 
 
 401 
 
 803, 807 
 
 V. Hack 
 
 
 
 72 
 
 Chamberlain v. Agar 
 
 
 84 
 
 181, 210 
 
 V. Brackett 
 
 
 
 728, 7;i7 
 
 V. Chamberlain 
 
 181 
 
 182, 
 
 741, 748 
 
 V. Crane 
 
 
 
 29'J 
 
 V. Dummer 
 
 
 
 540 
 
 V. Maynes 
 
 
 
 328 
 
 V. Stearns 
 
 
 
 711, 712 
 
 t'. Taylor 
 
 
 
 705 
 
 r. Temple 
 
 
 
 165 
 
 V. Thompson 
 
 305 
 
 312, 
 
 315, 318 
 
 Chambers, Ex parte 
 
 
 616, 
 
 017, 618 
 
 V. Atkins 
 
 
 
 117 
 
 V. Caulfield 
 
 
 
 672 
 
 V. Chambers 
 
 
 362, 
 
 451, 856 
 
 V. Crabbe 
 
 
 
 851 
 
 V. Emery 
 
 
 
 137 
 
 V. Goldwin 
 
 
 
 615 
 
 V. Goodwin 
 
 
 
 905 
 
 V. Tlowell 
 
 
 
 430 
 
 V. Kerns 
 
 
 
 462 
 
 V. Manchester, &c. 
 
 Ry. 
 
 
 752 
 
 V. Mauldin 
 
 
 
 330 
 
 V. Minchin 
 
 402, 
 
 404, 
 
 411,416, 
 
 
 
 419 
 
 421, 423 
 
 V. Perry 
 t'. St. Louis 
 
 
 
 631 
 
 
 694, 
 
 699. 724 
 
 V. Smith 
 
 
 
 827 a 
 
 V. Taylor 
 
 
 
 312 
 
 Chambersburg Ins. Co. 
 
 V. Smith 
 
 520 
 
 Chamness v. Crutchfield 
 
 
 220 
 
 Champion, In re 
 
 
 
 100. 848 
 
 V. Brown 
 
 
 
 232, 239 
 
 V. Kigby 
 
 
 202, 
 
 228, 229 
 
 V. Smith 
 
 
 
 099 
 
 Cham pi in v. Champlin 
 
 
 124, 
 
 13.3, 142. 
 
 
 
 169, 
 
 672, 783 
 
 f. Haight 
 
 
 
 810 
 
 ?'. Laytin 
 
 
 
 171 
 
 Chance r. MoWharter 
 
 
 
 232, 239 
 
 Chancellor, In re 
 
 
 
 547 
 
 v. Windham 
 
 
 
 299 
 
 Chandler, In re 
 
 
 
 846 
 
 VOL. I. — d 
 
 
 
 
 Chandler r. Hill 600 
 
 Chandos v. Brownlow 230 
 
 V. Talbot 641 
 
 Chanet v. Villeponteaux 499 
 
 Chancy f. May 885 
 
 V. Smallwood 245 
 
 Chapin r. Holyoke Young Men's Ch. 
 Ass'n 729 
 
 V. School District 45, 730, 744, 748 
 
 V. Universalist Society 17. 299, 
 
 V. Vermont, &c. Railway 
 
 f. Weed 
 
 petitioner 
 Chaplin, Kx parte 
 
 V. Chaiilin 
 
 V. Givcns 
 
 V. McAfee 
 
 V. Mdore 
 
 V. Young 
 Chapman, /n re 
 
 V. Beardsley 
 
 V. Blissett 
 
 V. Butler 
 
 V. Chapman 
 
 V. Foster 
 
 V. Gibson 
 
 V. Gray 
 
 V. Kimball 
 
 V. Tanner 
 
 V. "Wilbur 
 Charity Corp. r. Sutton 
 Charles v. Burke 
 Dubois 
 
 Charlton v. Durham 
 
 I'. Low 
 
 V. Kendall 
 Charter v. Trevelyan 
 Chase v. Chapin 
 
 V. Chase 
 
 V. Lockerman 
 
 305. 328 
 
 758, 701 
 
 21)9 
 
 448 
 
 461 
 
 151, 165, 323 
 
 261, 262, 264, 208, 914 
 
 120 
 
 012 
 
 430 
 
 465, 848, 910 
 
 232, 235 
 
 298, 305, 312 
 
 855 
 
 419 
 
 686 
 
 108 
 
 672 
 
 277 
 
 232, 239 
 
 77 
 
 402, 879, 904 
 
 104 
 
 428 
 
 421 
 
 218 
 
 375 
 
 923 
 
 86, 99 
 
 70, 71, 112, 117, 118, 
 
 380 fl, 623 
 
 243, 402. 408, 562, 
 
 565, 566, 571, 918 
 
 V. Palmer 627 
 
 V. Parker 602 Jf 
 
 V. Perley 79 
 
 V. Roberts 843 
 
 V. Stockett 91 
 
 V. Van Meter 347 
 
 V. York C. S. Bank 827 n 
 
 Chassaing v. Parsonage 636 
 
 Chastain v. Smith 127 
 
 Chastcauncuf r. Capeyron 67 
 
 Chathatr. v. Audley 905 
 
 V. Brainard 748 
 
 Chattanooga, &c. R. Co. v. Evans 242 
 
 Chauncy r. Graydon 515 
 
 Chauve'te v. ^lason 678 
 
 Chawner's Will, In re 708 
 
 Cheatham v. Rowland 477 
 
 Chedworfh v. Edwards 446, 835, 837, 863 
 
 Cheek v. Watson 171 
 
 Cheever i'. Wilson 084 
 
 (^helmsford's Case 694 
 
 Chencry v. Davis 440 
 
 Chenev v. Watkina 299 
 
 Cheney's Case 701 
 
 Cherry r. Greene 5116, 764, 795 
 
 ffJarratt 918
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Cherry v. Mott 72-t, 726 
 
 Chertsey Market, In re 419, 742, 745, 
 
 770, 816, 848, 849, 875 
 
 Cheshire v. Cheshire 544, 8;J6 
 
 V. Payne 213 
 
 Cheslev v. Ciiesley 770 
 
 Cheslyii v. Dalby 202 
 
 Chesson v. Ciiesson 554 
 
 Ciiester v. Grier I'J^ 
 
 V. Pratt 658 
 
 V. Kolfe 480,487,915 
 
 Chesterfield v. Janssen 167, 169, 171, 185, 
 
 187, 189,194, 195, 212,851 
 
 Chestnut St. Nat. Bank v. Fidelity 
 
 Ins. Co. 104 
 
 Chew V. Beall 060 
 
 V. Chew 308, 511 
 
 Chew's Appeal 827 
 
 Chibnal v. Whitton 993 
 
 Chicago, &c. R. Co. v. Hay 803 
 
 V. Titterington 8(il 
 
 Chicago Att. Co. v. Davis S. M. Co. 82 
 
 Chicago, &c. Land Co. v. Peck 482 
 
 Chidgev v. Harris 261 
 
 Chilcott V. Hart 382 
 
 Child V. Bruce 195 
 
 V. Child 453, 607 
 
 V. Gibson 464 
 
 V. Stephens 696, 597 
 
 Childers v. Childers, 76, 82, 84, 131, 
 
 151, 165, 220 
 
 Childs V. Gramold 137 
 
 V. Jordon 86, 343 
 
 V. Wesleyan Cem. Ass'n 77 
 
 V. Woodson 75 
 
 Chillingworth v. Chambers 848 
 
 Chilton V. Braiden 232 
 
 Cliion, Ex parte 835 
 
 Chipchase v. Simpson 649, 651 
 
 Chippendale, Ex parte 486, 907, 909 
 
 Chishulm v. Chisholm 615, 616 
 
 V. Gadsden 171 
 
 V. Newton 330 
 
 V. Starke 541 
 
 Chism V. Williams 380 
 
 Chitwood V. Brittaia 84 
 
 Choice V. Marshall 359 
 
 Cholmeley v. Paxton 774, 776 
 
 Cholmoiideley tJ. Cholmondelev 112 
 
 V. Clinton 228, 855, 856, 857, 805. 
 
 807 
 
 Chowning v. Cox 602 'hi 
 
 Chrichton's Trust 927 
 
 Christ's Church, In re 742 
 
 V. Trustees 701, 730 
 
 Christ's Coll., Cambridge 700, 739 
 
 Christ's Hospital y. Budgin 144, 149, 151 
 
 V. Diffenbach 226 
 
 V. Grainger 23, 384, 736 
 
 V. Hames 739 
 
 Christian v. Foster 903 a 
 
 V. Yancey 261, 602 an 
 
 Christie v. Bishop 221 
 
 Christleri'. Meddis 499 
 
 Christopher v. Covington 590. 591 
 
 Christophers v. White 432. 904 
 
 Christy V. Courtnay 143, 146, 147 
 
 V. Flpmiugtoa 601 
 
 V. Pulliam 254 
 
 Church V. Church 748 
 
 V. Cole 126 
 
 V. Ja(iues 27 
 
 V. Marine Ins. Co. 206 
 V. Ruland 171, 181, 182, 222 
 
 V. Sterling 127 
 
 V. Stewart 328 
 
 V. Wood 127 
 Church of Donington-on-Baine, In re 701 
 Church of Latter Day Saints v. United 
 
 States 727, 736 
 
 Church on Brattle St. v. Grant 736 
 
 Churclier v. Martin 131 
 
 Churchill v. Churchill 254 
 
 V. Corker 320 
 
 V. Dibben 604 
 
 V. Hobson 261, 402, 411, 416, 421 
 
 V. Marks 388, 555 
 
 Chwatal v. Schreiner 371 
 
 Citizens' Nat. Bank v. Jefferson 466 
 
 Citv Council v. Paige 218 
 
 ' V. Walton 277 
 
 City National Bank v. Hamilton 127 
 
 Clack V. Carlon 432 
 
 V. Holland 438, 440, 831, 845 
 
 Cladfield V. Cox 438 
 
 Clatlin V. Ambrose 124 
 
 V. Claflin 382, 386 
 
 V. Van Wagoner 600 
 
 Clagett V. Hall 76, 420 
 
 Clairborne v. Henderson 324 
 
 V. Holland 466, 790 
 
 Clairhorn v. Crockett 238 
 
 Clamer t'. Rawlings 237 
 
 Clanricaide v. Heuning 202, 850, 855 
 
 Clapp V. Emery 86 
 
 Clapper v. House 227 
 
 Clapton V. Buhner 256 
 
 Clare v. Bedford 53 
 
 Clark V. Andersoa 453, 910 
 
 V. Beers 460 
 
 V. Burgh 633 
 
 V. Burnhara 140 
 
 V. Cantwell 129 
 
 V. Chamberlain 142 
 
 V. Clark 126. 132, 147, 248, 347, 417, 
 
 418, 419, 423, 460, 547, 803 
 
 V. Cook 633 
 
 V. Cordis 482 
 
 V. Crego 341 
 
 V. Evorhart 174, 178 
 
 V. Flannery 554 
 
 V. Fuller 590 
 
 V. Garfield 453, 4.59 
 
 V. Girdwood 203 
 
 V. Hanev 171 
 
 V. Hilton 152 
 
 V. Holland 195 
 
 V. Hornthal 511 c 
 
 V. Hunt 237, 239 
 
 V. Jones 225, 766 
 
 V. Lee 206 
 
 V. McMahoa 122 
 
 V. Maguire 647 
 
 V. Makenna 647, 601 
 
 V. Mai pus 189, 194 
 
 V. Marlow 568 
 
 r. Alartin 240 rt 
 
 V. Patterson 147, 658
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 li 
 
 Clark V. Peatridge 
 
 V. Piatt 
 
 V. liiddle 
 
 V. lioyle 
 
 r. Sawyer 
 
 V. Seymour 
 
 V. Taylor 
 
 r. Teniiison 
 
 F. Timmons 
 
 r. Trflawney 
 
 t'. Vail Surley 
 
 V. Ward 
 
 f. Washington Corp. 
 
 V. Wilson 
 
 0. Wright 
 Clark's Appeal 
 
 Estate 
 Clarke, In re 
 
 0. Herkeley 
 
 t). Hlount 
 
 V. Boyce 
 
 V. Clarke 
 
 V. Danvers 
 
 V. Deveaux 
 
 V. Hackerthorne 
 
 V. Hart 
 
 V, Jenkins 
 
 V. Eott 
 
 V. JlcCreary 
 
 V. Moore 
 
 220 
 
 383,917, '.H8 
 
 7tiG 
 
 236 
 
 894 
 
 773 
 
 724, 726 
 
 347 
 
 126 
 
 466 
 
 610 
 
 189 
 
 757 
 
 594 
 
 8:28 
 
 417,418 
 
 468 
 
 618 
 
 513, 517 
 
 421 
 
 235 
 
 171 
 
 126, 144 
 
 539, 816, 922 
 
 217 
 
 869 
 
 421 
 
 97 
 
 639 
 
 764 
 
 V. Parker 262, 413, 502, 507, 508, 511, 
 
 514,517, 518, 519 
 
 V. Quackenboss 137 
 
 V. Royal Panopticon 19, 768 
 
 V. Sawyer 182 
 
 V. Saxon 48, 50, 540, 541 
 
 V. State 420 
 
 V. Turner 257, 510 
 
 V. Windham 648, 652, 653 
 
 Clarke's Appeal 448, 520 
 
 Trusts, Jn re 671 
 
 Clarkson r. Clarkson 358, 545 
 
 V. Creely 770 
 
 V. De Pevster 654 
 
 V. Hanwky 187, 189 
 
 Clary, In re 454 
 
 Claussen r. La Franz 48, 126 
 
 Clavering v. Clavering 103, 104, 162 
 
 Clay V. Hart 499 
 
 V. Selah V. Ir. Co. 248 
 
 V. Sharpe 602 c, 002 hh 
 
 17. Willis 602 c 
 
 V.Wood 114 
 
 Clavton V. Cagle 8.-)8 
 
 Clayton v. Glengall 580, 584 
 
 v. Greshain 644, 545 
 
 Cleaver v. Mutual R. F. Life Ass'n. 181 
 
 Clegg r. I'dmondson 141, 196 
 
 V. P'ishwick 196 
 
 V. Rowland 528, 5.30 
 
 Cleghorn v. Obernalte 145 
 
 Cleland v. Clelan<l 635 
 
 Clemens v. Caldwell 275, 276, 471 
 
 V. Clemens 273 
 
 V. Heckschor 790, 848 
 
 Clemenston v. Williams 806 
 
 Clement i'. Hyde 700 
 
 Clemson v. David.'^on 63 
 
 Clenestine's Appeal 649 
 
 Clenneil r. Lewthwaite 
 Clerg's .\p|Hal 
 Clergy Soeictv, Jn re 
 Clerk V. Miller 
 Clerkson v. liower 
 Clermont v. Tasburgh 
 Cler's Case 
 ('leve's Case 
 Cleveland, In re 
 
 r. Iliill.tt 
 
 V. pollard 
 
 t;. State Hank 
 Cleveland's Settled Estates 
 Clews r. .laniieson 
 Click V. Click 
 ClifTord r. Francis 
 Clifton I'. Davis 
 
 V. Haig 
 
 V. Lorn be 
 Clinefetter v. Ayers 
 Clinton V. Seymour 
 
 V. Willes 
 Clippenger r. Hipbaugh 
 
 Clive V. Carew 
 
 V. Clive 
 Clogett V. Hill 
 Cloud V. Bond 
 
 I". (Ireasley 
 
 r. Ivie 
 
 V. Martin 
 Cloudslev r. Pelham 
 
 94 
 571 
 
 724 
 
 654 
 
 13 
 
 71, 176 
 
 511 c 
 
 161 
 
 348 
 
 312, 315, 320 
 
 915 
 
 769 
 
 449 
 
 206 
 
 120 
 
 729 
 
 191 
 
 55 
 
 112 
 
 562 
 
 578 
 
 658 
 
 214 
 
 719, 
 
 654, 669,671,849 
 
 544, 545 
 
 826 
 
 460 
 
 72 
 
 1.32 
 
 118, 511 
 
 112 
 
 Clough V. Bond 402, 404, 409, 417, 419, 
 440, 444, 453, 455, 402, 465, 847 
 
 V. Dixon 
 
 I'. Lambert 
 Cloutman v. Bailey 
 Cloyne v. Yound 
 CI u low's Trust 
 Clute r. Bool 
 
 I'. Frasier 
 Clutton, Ex parte 
 Clyde i". Simpson 
 Coape V. Arnold 
 Coard v. Ilolderness 
 Coate's Appeal 
 Coates 7\ Robinson 
 
 V. Williams 
 
 I'. Woodsworth 
 Cobb r. Biddle 
 
 V. Edwards 
 
 V. Fant 
 
 V. Knight 
 
 V. Stewart 
 
 V. Trammell 
 Cobb's Estate 
 Coburn v. Anderson 
 Cochran r. Cochran 
 
 r. Paris 
 
 V. Richmond & A. R. Co, 
 
 V. Van Surley 
 Cock I'. Goodfellow 
 Cockhurn r. Thompson 
 Cockell V. Taylor 
 
 Cocker v. Quayle 
 
 Cockerell r. Barber 
 
 V. Cholnieley 
 Cocking I'. Pratt 
 Cocks V. Haviland 
 
 417, 422, 444, 445 
 
 672 
 
 358 
 
 157 
 
 397 
 
 118, 386 a 
 
 195 
 
 59, 277, 297 
 
 794, 800 
 
 358, 359, 369 
 
 157 
 
 113, 119 
 
 655. 660 
 
 591 
 
 133 
 
 765 
 
 124 
 
 917 
 
 79, 86, 104, 816 a, 828 
 
 246 a 
 
 1.33 
 
 448 
 
 158 
 
 554 
 
 508, 511 
 
 902, 910 
 
 610 
 
 453, 454 
 
 815 
 
 187 831 
 
 45.3, 460,467, 509, '549, 
 
 847 
 
 272 
 
 776. 851 
 
 178, 184, 201 
 
 848
 
 Hi 
 
 Cocksodfje v. Cockscdge 
 Coddriiitcton v. Foley 
 Coder I". Haling 
 Codnian v. Krell 
 Codwise V. Gelstou 
 Coe V. Bradley 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 672 
 578, 570 
 
 127 
 
 72 
 
 594, 596 
 
 215 
 
 V. Columbus, &c. Railway 754, 756, 
 
 759 
 
 V. Knox County Bank 759 
 
 V. McBrown 759 
 
 V. Peacock 754, 759 
 
 V. Peniiock 759 
 
 V. Washington Mills 730 
 
 Coe's Trust 510 
 
 Coffee V. Buffin 195 
 
 Coffin V. Cooper 517 
 
 V. Fernvhough 196 
 
 V. Morrill 642 
 
 Cofford V. Allen 848 
 
 Cogbill r. Boyd 427, 452, 463. 471 
 
 Coggeshall v. Pelton 697, 704, 748 
 
 Cog'gswell V. Griffith 828 
 
 Coggins V. FIvthe 280 
 
 Cogswell V. Cogswell 227, 462, 468, 544, 
 
 545, 552, 554, 826 
 
 V. Newburyport S. Inst'n 82 
 
 Cohen v. Morris 602 ?» 
 
 V. Parish 145 
 
 Coit V. Fougera 237 
 
 Colburn v. Morton 195, 205 
 
 Colchester v. Lowten 31 
 
 Colcord V. Scamonds 238 
 
 Coldwell V. Home 725 
 
 Cole V. Cunningham 72 
 
 V. Gibbons 188 
 
 V. Gibson 214 
 
 V. Jessup 591 
 
 V. Lake 873 
 
 V. Littlefield 112, 117, 386 a 
 
 V. McNeill 213 
 
 V. Miles 225 
 
 V. Moffitt 602 21 
 
 V. Moore 828 
 
 V. Noble 865 
 
 V. Robins 191 
 
 V. Savage 602 ee 
 
 V. Scott 221, 232 
 
 V. Stokes 195. 428 
 
 I'. Turner 570 
 
 V. Wade 19. 20, 258, 273, 280, 294, 
 
 344, 491, 496, 499, 503, 504, 508, 714, 721 
 
 Cole's Estate, In re 477, 526 
 
 Colebrook's Case 285 
 
 Colegrave v. Manby 532, 534, 535 
 
 Coleman, In re 555, 926 
 
 V. Bucks & Oxon Union Bank 122 
 
 V. Columbia Oil Co. 545, 556 
 
 , V. Hatcher 559 
 
 V. McKinney 785 
 
 V. Parran 79 
 
 V. Ross 892 
 
 V. Woolley 655, 660 
 
 Coles V. Forrest 873 
 
 V. Trecothick 183, 187, 188, 195, 199, 
 
 206, 428 
 
 Colesbury v. Dart 217, 768, 790 
 
 Coleson v. Blanton 3-iO 
 
 Colgate V. Colgate 205 
 
 Col lard V. Hare 228, 865 
 
 Collard V. Sampson 511 c 
 
 College of Charleston v. Wellington 919 
 
 Collett «. Collett 903 a 
 
 Collier v. Carey 432 
 
 r. Collier 226, 620 
 
 V. Fallon 69 
 
 V. Grimsey 499 
 
 V. Harkness 239 
 
 V. McBcan 308, 316, 358, 361, 829 
 
 V. Slaughter 514 
 
 V. Walter 315 
 
 Collin V. Blackburn 616 
 
 Collins, Re 615 
 
 V. Carev 904 
 
 V. Carlyle 112, 251 
 
 V. Collins 166, 450 
 
 V. Corson 126, 133 
 
 V. Hopkins 602 A, 602 » 
 
 V. Hoxie 66, 891 
 
 V. Eavenburg 655, 660 
 
 V. McCarty 858, 869 
 
 V. Rainey 206 
 
 V. Rudolph 648 
 
 V. Serverson 816 b 
 
 V. Stocking 347 
 
 V. Sullivan 181 
 
 V. Townley 892 
 
 V. AVade 468 
 
 V. Wakeman 157 
 
 r. Wickwire 288 
 
 V. Will 511 c 
 
 V. Williamson 206 
 
 Collinson v. CoUinson 146, 147 
 
 V. Lister 225, 455, 458, 810, 909 
 
 V. Patrick 98, 102 
 
 Collinson's Case 693, 704. 739 
 
 Collis V. Collis 453, 826, 827 
 
 V. Robins 558 
 
 Collister v. Fassitt 112 
 
 Collomore r. Tyndall 319 
 
 Coll3'er v. Burnett 741 
 
 V.Collins 602 66 
 
 Colman ?'. Lord 897 
 
 V. Lvne 2?8 
 
 V. S'arrel 97, 100, 108, 111, 367 
 
 V. Satterfield 678, 681 
 
 Colmer v. Colmer 628, 634 
 
 Colrane v. Worrel 456 
 
 Colsten V. Chandos 493 
 
 Colt V. Lasoriere 225 
 
 Colton V. Colton 112,114 
 
 Columbia Bridge Co. v. Kline 42 
 
 Colvin V. Currier 645 
 
 V. Mennefee 866 
 
 Colyer v. Finch 800, 802, 803 
 
 Com. V. Nase 160 
 
 Combe v. Brasier 733, 748 
 
 V. Combe 580 
 
 V. Hughes 397 
 
 Combry v. McMichael 312, 318 
 
 Comley v. Dazian 200 
 
 Commeyer v. United Ger. Church 55 
 
 Commissioner of Roads v. McPherson 43 
 
 Commissioners v. Archibald 275 
 
 V. Pemsel 705 
 
 Com'rs, &c. v. Archbold 275, 276 
 
 V. De Clifford 380, 736 
 
 V. Fornev 500 
 
 V. Johnson 452, 890 a
 
 INDEX TO CASKS CITED. 
 
 liii 
 
 [References are to aections.] 
 
 Com'rs, &;c. v. Mateer 
 
 V. Siillivuii 
 
 t'. Walker 
 
 V. Wybranta 
 Comnioinvciillh v. Duffield 
 
 V. Martin 
 
 V. McAlister 
 
 V. Shelby 
 
 V. Smith 
 
 r. Stauffer 
 
 V. Tenth Mass. Turnp. 
 Company of Pewterers v. Christ's 
 
 pital 
 Compton V. Barnes 
 
 ti. ('ollinson 48, 52, 
 
 V. 0.xeiiden 
 Conditt V. Klower 
 Conant v. Wrif^ht 
 Condit V. Maxwell 137, 
 
 Condy r. Ailrian 
 
 I'. Campbell 
 Cone V- Dunham 
 Coni^. Ciiurch v. Southwick 
 Con^^r'l Uiii. Society v. Hale 
 Conkey v. Dickinson 
 Conklin v. Conklin 
 
 V. Davis 
 
 V. Egerton 
 Conley v. Nailor 
 Connah v. Sedgwick 
 Conally v. Lyons 
 Connecticut "l^ Bradish 
 Conn. Milt. Life Ins. Co. v. Smith 
 Conn. Kiver S. Bank v. Albee 
 Connelly v. Wells 
 Conningham v. Conningham 261, 
 
 V. Mellish 151, 
 
 V. Plunkett 
 Connollv v. Connolly 
 
 V. I""'arrell 
 
 V. Howe 
 
 V. Keating 
 
 V. Pardon 
 
 V. Parsons 
 Connor, In re 
 
 V. Follansbee 
 
 V. Lewis 
 
 V. New Albany 
 
 V. Ogle 
 Conolan v. Leyland 
 Conover v. Beckett 
 
 V. StothofE 
 
 V. Warren 
 Conoy V. Troutman 
 Conrad v. Shomo 
 Conroe v. Birdsall 
 Conron v. Conron 
 Conry v. Caullield 433, 
 
 Consistory i". Brandon 
 Constant v. Metteson 
 
 V. Schuyler 
 Constantein v. Blache 
 Consterdine v. Consterdine 
 
 Coatee v. Dawson 
 Converse v. Noyes 
 
 V. Sickles 
 Conway, Ex parte 
 V. Alexander 
 V. Conway 
 
 417, 420, 
 
 270 
 
 Conway v. Cutting 
 
 
 82, 438 
 
 699, 729 
 
 V. Kenton 
 
 
 477 
 
 ■M, .19 
 
 V. Green 
 
 
 205 
 
 802, 8.J1 
 
 I'. Keiisworthy 
 
 
 82, 231 
 
 51 1.' 
 
 V. Smith 
 
 
 680 
 
 64 
 
 Conybeare's Settlement, 
 
 Ex parte 
 
 277, 297 
 
 418 
 
 Cood V. Cood 
 
 
 71 
 
 564 
 
 V. Pollard 
 
 
 230 
 
 756, 757 
 
 Cook V. Addison 
 
 
 447, 468 
 
 514, 555 
 
 V. Arnhain 
 
 
 862, 872 
 
 757 
 
 V. Barr 
 
 
 81 
 
 Hos- 
 
 V. Bremr)nd 
 
 
 147 
 
 736 
 
 V. Bronaugh 
 
 
 133, 221 
 
 918 
 
 r. Burtchaell 
 
 
 206 
 
 672, 67;i 
 
 V. Cholmondeley 
 
 
 427 
 
 347, 348 
 
 V. Clayworth 
 
 
 191 
 
 585 
 
 V. Coliinridge 
 
 
 454, 470 
 
 280 
 
 t'. (y'ook 
 
 
 215, 499 
 
 223, 805 
 
 V. Crawford 273, 284 
 
 , 230, 294, 
 
 339, 340, 
 
 541 
 
 344, 
 
 492, 494 
 
 495, 502 
 
 380 
 
 V. Dawson 
 
 506, 
 
 802, 803 
 
 865 
 
 v. Dealy 
 
 
 150 
 
 411, 413 
 
 V. Dillon 
 
 602 
 
 i, 602 Jf 
 
 730 
 
 I'. Duiikcnfield 
 
 150, 
 
 699, 729 
 
 263, 572 
 
 V. Ellington 
 
 
 112 
 
 380 
 
 I'. Fountain 
 
 104, 121 
 
 162, 167 
 
 69!J 
 
 V. French 
 
 
 223 
 
 500 
 
 I'. Fryer 
 
 
 260 
 
 66 
 
 V. Gardner 
 
 
 920, 921 
 
 590, 591 
 
 V. (iilmore 
 
 910, 915 a 
 
 437 rt 
 
 V. Gwavas 
 
 
 152 
 
 218 
 
 r. Husbands 
 
 
 50 
 
 861 
 
 V. Hutchinson 
 
 150, 151, 
 
 153, 158 
 
 82, 163 
 
 v. Ingoldsby 
 
 
 290 
 
 875 
 
 V. Kennedy 
 
 
 647 
 
 262, 268 
 
 V. Lamotte 
 
 104, 194, 
 
 201, 210 
 
 153, 158 
 
 V. Lawrence 
 
 
 292 
 
 100 
 
 V. Lowry 
 
 
 23 
 
 515 
 
 V. Nathan 
 
 
 184 
 
 117,118 
 
 V. Parsons 
 
 
 476, 915 
 
 236 
 
 I'. Sherman 
 
 
 133, 195 
 
 142 
 
 V. Soltan 
 
 
 219, 352 
 
 891 
 
 V. Stationers' Co. 
 
 
 152, 160 
 
 770, 782 
 
 V. Tritnble 
 
 
 232 
 
 66 
 
 V. TuUis 
 
 
 336, 831 
 
 137 
 
 V. Wiggins 
 
 
 672, 674 
 
 133 
 
 Cooke, Re 
 
 
 498 
 
 328 
 
 V. Piatt 
 
 
 111 a 
 
 396, 612 
 
 Cooksey v. Bryan 
 
 
 137, 865 
 
 646 
 
 Cook son V. Keay 
 
 
 461 
 
 8lbc 
 
 V. Richardson 
 
 
 127, 187 
 
 795 
 
 Cool V. Jackman 
 
 
 468 
 
 233, 237 
 
 Cooley V. Lobdell 
 
 
 82 
 
 Q02 an 
 
 V. Kankin 
 
 
 191 
 
 084 
 
 V. Scarlett 
 
 
 71 
 
 170 
 
 Coombs V. Jordan 
 
 598, 797, 798 
 
 573 
 
 V. Read 
 
 
 676 
 
 863, 876 
 
 Coon V. Brook 
 
 
 660 
 
 748 
 
 Cooney v. Ryter 
 
 
 82 
 
 918 
 
 Coonrod v. Coonrod 
 
 
 475, 794 
 
 87 
 
 Coope V. Carter 
 
 
 889, 890 
 
 585 
 
 Cooper, In re 
 
 
 615 
 
 417 
 
 V. Cartwright 
 
 
 347 
 
 466, 826 
 
 V. Cockrum 
 
 
 126, 171 
 
 124 
 
 r. Cooper 
 
 254, 347 
 
 516, 890 
 
 166 
 
 V. Day 
 
 
 275, 282 
 
 588 
 
 I". Douglas 
 
 
 480 
 
 226 
 
 V. Haines 
 
 
 253 
 
 578 
 
 V. Kynock 
 
 317 
 
 319, 320
 
 Jiv 
 
 INDEX TO CASES CITED. 
 [References are to sectious.] 
 
 Cooper V. Larocho 
 
 671 
 
 Cory V. Cory 
 
 185 
 
 191, 201 
 
 V. Martin 
 
 25'1 
 
 V. Gertcken 
 
 
 53, 024 
 
 V. McCluiu 
 
 257 
 
 Coryell v. Dunton 
 
 
 511 c, 654 
 
 V. Keilly 
 
 369 
 
 V. Klehni 
 
 
 222, 347 
 
 V. Skeele 
 
 137 
 
 Coryton v. Ililyan 
 
 
 7 
 
 V. Spottiswood 
 
 236 
 
 Cosser V. Kadfoid 
 
 
 600 
 
 V. Stevens 
 
 602 ce 
 
 Costabadie v. Costabadie 
 
 
 117, 511 
 
 V. Tliomason 
 
 82 
 
 Costeker v. llorrox 
 
 
 827 
 
 V. Thorntoa 
 
 117, 118, 024 
 
 Coster V. Coster 
 
 
 636 
 
 V. Whitney 
 
 322, .585 
 
 V. Griswold 
 
 
 72, 187 
 
 V. Wyatt 
 
 388, 555 
 
 V. Murray 
 
 
 803 
 
 Cooper's Estate 
 
 382 
 
 Gotham v. West 
 
 
 615 
 
 CootL V. Jackson 
 
 137 
 
 Cottage St. M. E. Church v. 
 
 Kendall 729 
 
 Cope V. Barry 
 
 873 
 
 Cottani V. E. Counties ii. K. 
 
 Co. 
 
 410, 418 
 
 V. Clark 
 
 849 
 
 Cotteen v. Missing 
 
 
 97, 102 
 
 V. Cope 
 
 564 
 
 Cotter V. Burchard 
 
 
 843 
 
 Copeland v. Ins. Co. 
 
 206 
 
 Cotterel v. Hampson 
 
 
 30 
 
 V. Summers 
 
 104 
 
 V. Purchase 
 
 
 226, 861 
 
 Copeley v. O'Neil 
 
 606 
 
 Cotterell v. Long 
 
 
 602 fi 
 
 Copeman v. Gallant 
 
 58 
 
 Cotting V. De Sartiges 
 
 
 287 
 
 Copis V. Middleton 
 
 197 
 
 Cottingham v. Shrewsbury 
 
 
 876 
 
 Coppage V. Barnett 
 
 133 
 
 Cottington v. Fletcher 82 
 
 , 84, 
 
 137, 151, 
 
 Coppard v. Allen 
 
 876 
 
 
 152 
 
 105, 216 
 
 Copper Mining Co. v. Beach 
 
 786 
 
 Cottle V. Harrold 
 
 
 126 
 
 Coppertliwaite v. Tuite 
 
 654 
 
 Cottman v. Grace 
 
 386 
 
 700, 732 
 
 Coppin V. Coppin 
 
 236 
 
 Cotton, In re 
 
 
 615 
 
 V. Fernyhough 
 
 533, 834 
 
 V. Clark 
 
 898 
 
 900, 902 
 
 V. Gray 
 
 057 
 
 V. Cotton 
 
 
 450, 547 
 
 Copping V. Cooke 
 
 243 
 
 V. King 
 
 
 103 
 
 Coquard v. National Linseed Oil Co. 21 
 
 V. Penrose 
 
 
 903 a 
 
 Corbally v. Grainger 
 
 605 
 
 V. Wood 
 
 
 134, 137 
 
 Corbett v. Barker 
 
 856 
 
 Cotton's Trustees, In re 
 
 
 272 
 
 V. Laurens 
 
 552 
 
 Cottrell V. Cottrell 
 
 
 787 
 
 V. Maydwell 
 
 578, 579 
 
 V. Hughes 
 
 
 218, 354 
 
 Corbin v. Wilson 
 
 615, 616 
 
 Cough V. Bcind 
 
 
 914 
 
 Corby v. Corby 
 
 121 
 
 Coulson V. Walton 
 
 
 855 
 
 Cordell's Case 
 
 217 
 
 County Att'y v. May 
 
 
 724 
 
 Corder v. Morgan 
 
 602 c, 602 hb 
 
 Course v. Humphrey 
 
 
 888 
 
 Cordwell v. Mackrill 
 
 833, 834 
 
 Court V. Jeffrey 
 
 
 812, 881 
 
 Corgell V. Dunton 
 
 607 
 
 V. Eobarts 
 
 
 472 
 
 Corie v. Bertie 
 
 694 
 
 Courtenay v, Courtenay 
 
 268 
 
 280, 401 
 
 Corkers v. Minons 
 
 516 
 
 V. Taylor 
 
 
 200 
 
 Corley v. Corley 
 
 627, 629 
 
 Courtier, In re 
 
 437 a, 477 
 
 V. Stafford 
 
 202, 21)3 
 
 Cousett V. Bell 
 
 
 877, 907 
 
 Corlies v. Corlies 
 
 276, 4.59 
 
 Cousin's Estate 
 
 
 457 
 
 Cormerais v. Genella 
 
 602 <ig 
 
 Coutts V. Acworth 
 
 
 104 
 
 Cormickp. Holbrook 
 
 680 
 
 Covar V. Cantelou 
 
 
 874 
 
 Corn Exchange v, Babcock 
 
 660 
 
 Covenhoven i,'. Shuler 
 
 541 
 
 546, 547 
 
 Cornell, Jn re 
 
 845 
 
 Coventry v. Coventry 52, 
 
 108, 
 
 268, 276, 
 
 0. Green 
 
 500 
 
 280, 282, 884, 899, 
 
 901 
 
 908, 924 
 
 V. Lovett 
 
 514 
 
 V. Hall 
 
 
 872 
 
 Cornell's Estate 
 
 545, 549, 917 
 
 V. Higgs 
 
 
 513, 517 
 
 Cornfoot v. Fowke 
 
 172 
 
 Coverdale v. Eastwood 
 
 
 208 
 
 Corning v. Lewis 
 
 680 
 
 Covington v. Anderson 
 
 
 828 
 
 V. White 
 
 594 
 
 V. McEntire 
 
 
 546 
 
 Cornish v. Wilson 
 
 558, 570 
 
 Cowdery v. Way 
 
 
 654 
 
 Cornwell v. Orton 
 
 299 
 
 Cowdry v. Day 
 
 
 203 
 
 Corn wise v. Bourgum 
 
 466,618 
 
 Cowell V. Gatcombe 
 
 
 402, 417 
 
 Corp. of Carlisle v. Wilson 
 
 871 
 
 V. Hicks 
 
 
 358 
 
 Corp. of Reading v. Lane 
 
 600 
 
 Cowgill V. Oxmantown 
 
 
 539, 777 
 
 Corp. of Sons of Clergy v. Mose 743 
 
 Cowing V. Howard 
 
 
 918 
 
 Corrance v. Corrance 
 
 027 
 
 Cowles V. Brown 
 
 
 511 
 
 Correll v. Lauterbach 
 
 248, 277 
 
 Cowley V. Hartstonge 
 
 
 461, 511 
 
 Corrie v. Byron 
 
 286 
 
 V.' Wellesley 
 
 
 546 
 
 Corse V. Chapmaa 
 
 490, 671 
 
 Cowman v. Colquboun 
 
 
 820 a 
 
 V. Corse 
 
 490 
 
 V. Hall 
 
 
 322 
 
 V. Leggett 
 
 81, 82 
 
 V. Harrison 
 
 
 113, 117 
 
 Corser v. Craig 
 
 438 
 
 Cowper V. Cowper 
 
 
 183. 357 
 
 Corson, Re 
 
 189 
 
 V. Mantell 
 
 
 119, 256
 
 INDEX TO CASES CITED. 
 [References are to eectiooe.] 
 
 Iv 
 
 Cowper V. Stoneham 848 
 
 Cowpertliwaite c. Uauk 181 
 
 Cowstad V. Cely 878 
 
 Cox y. Arnsiuan 171 
 
 V, bassett 714 
 
 V. bateman 137, 2G0, 8.J7 
 
 V. Bennett U17 
 
 V. Chamberlain 785 
 
 V. Coleraau (J08 
 
 V. Cox 124, 55G a, 794, 7'J'J 
 
 V. Dolman SfJ.J 
 
 V, Edwards 2'jy 
 
 V. Fenwick 232, 237 
 
 V. Ilalstead 602 v, (-02 u 
 
 V. John l'J7 
 
 f. Ledward 347 
 
 V. Martin 4G6 
 
 V. Parker 160, 434 
 
 V. Sprigg 98, 109 
 
 V. Walker 17, 328, 411, 520 
 
 V. Wills 540, 894 
 
 V. Wood 232 
 
 Coykendall v. Rutherford 499 
 
 Cozine v. Graham 84 
 
 Cozzons' Instate 415 
 
 Crabb r. Crabb 75, 77, 147 
 
 V. Young 401 
 
 Crackett v. Bethuue 466, 4G8, 900 
 
 Cradock v. Owen 327, 437 
 
 V. I'iper 432. 895 
 
 Crafton v. Frith 699 
 
 Craig V. Craig 274, 280, 281, 393, 396. 
 
 398, 766 
 
 V. Hone 277, 381 
 
 V. Leslie 64 
 
 V. Radford 55 
 
 V. Wheeler 450, 451 
 
 Craigdallie r. Aikman 734 
 
 Craigg !'. Holmes 191 
 
 Crallan r. Oughton 601 
 
 Cram v. Mitchell 195, 206, 586, 590 
 
 Crampton v. Seymour 910 
 
 Cranch r. Cranch 449 
 
 Crane r. Bolles 315, 448 
 
 t'. Caldwell 238 
 
 V. Conklin 187, 191 
 
 V. Crane 17, 328 
 
 V. Drake 225, 810, 815 
 
 V. Gough 110 
 
 V. Hearn 419 
 
 V. Iiiglehart 459 
 
 r. Kellev 680 
 
 V. Palmer 239 
 
 V. Reeder 780 
 
 V. Ruder 327 
 
 Cranson i-. Wilsey 281 
 
 Cranston, /n re 705 
 
 V. Crane 602 ro, 602 a!, 779 
 
 r. Plumb 674 
 
 Cranstown v. Johnston 71, 72 
 
 Crate r. Luippold 437 a 
 
 Craven's Case 459 
 
 Crawford v. Bertholf 38, 231 
 
 r. Langmaid 96 
 
 r. North Eastern Ry. 545, 556 
 
 r. Patterson 612 
 
 V. Weam 5116 
 
 Crawford's Appeal 96 
 
 Crawley v. Crawley 397, 449, 551 
 
 Crawley v. Dixon 551 
 
 Crawhhaw f. Collins 906 
 
 Crawsliay v. Collins 430, 454, 470 
 
 Creagh v. Blood 13, 2i;'j, 347 
 
 V. Wilson 5i4_ 515 
 
 Creaton r. Creaton 305, 308, 315 
 
 Credlant's Estate 310 a 
 
 Creed v. Creed 876 
 
 V. Lancaster Bank 126, 130, 139, 149 
 
 Creesy v. Willis 5f;o 
 
 Creigh V. llenson 863, 866 
 
 Creigliton v. Ringle 225, 456 
 
 Crenty v. Dupree 75 
 
 Crerar v. Williams 700 
 
 Cresop V. McLean 602 '/d 
 
 Grossman's Appeal 82, 101, 109 
 
 Cresson v. Ferree 498, 506, 783 
 
 Cresson's Appeal 704 
 
 Cresswell's Adm'r v. Jones 82 
 
 Creswell v. Dewell 849, 851, 926 
 
 Creuze v. Hunter 600 
 
 Creveling v. Fritts 195 
 
 Crewe v. Dicken 271, 273, 408, 411, 
 
 497, 502, 503, 806 
 
 Cribbins n. Barkwood 188 
 
 Crichton v. Crichton 467, 828 
 
 r. Grierson 712 
 
 Cridland's Estate 453 
 
 Cripps V. Jee 82, 151 
 
 Crislield v. State 863 
 
 Crisp V. Spranger 246, 403 
 
 Crispell V. Dubois 201, 204, 210 
 
 Crissman v. Crissman 86 
 
 Critchtield v. Havnes 602 v 
 
 Critton v. Fairchild 334 
 
 Crocheron v. Jaques 39 
 
 Crocker v. Dillon 281, 841 
 
 r. Lowenthal ofiq 
 
 V. Robertson 602 d, 602 , 
 
 Crockett v. Crockett 112, 117, 118, 386 a 
 
 020 
 
 V. McGuire 241 
 
 Croft V. Adam 249, 251 
 
 V. Arthur 149 
 
 V. Lathrop 72 
 
 V. Powell 602 c 
 
 ■o- Slee 152, 655 
 
 Crofton V. Davies 360 
 
 t'. Ormsby 217, S28 
 
 Crofts V. Evett 718 
 
 V. Middleton 184, 657 
 
 Croker v. Hertford 93 
 
 Cromie v. Bull 510 
 
 Crommelin v. Crommelin 513, 514, 517 
 
 Crompton v. Vaser 97 
 
 Cronnin v. Louisville, &c. Soc. 715, 748 
 
 Crook ?•. Brooking 82, 86 
 
 r. De \'andes 380 
 
 V. First Nat. Bank 82 
 
 V. Glen 858 
 
 r. Ingoldsby 259 
 
 V. Tull 678 
 
 V. Turpin 626, 628, 630, 632 
 
 Crooke r. Kings County 23 
 
 Crop r. Norton 126, 132, 133, 196 
 
 Cropster v. Griffith 52 
 
 Crosby r. Church 658, 669 
 
 r.' Ilillyer 593. 596 
 
 V. Huston 284, 602 rf, 602y>
 
 Ivi 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Crosby v. Mann 
 
 V. Mason 
 Croskill V. Bower 
 Cross V. Beavan 
 
 V. Cross 
 
 V. Kennington 
 
 V. Norton 
 
 V. Petree 
 
 V. Smith 
 
 V. U. S. Trust Co. 
 Cross's Instate, Re 
 Crosslin^; v. Crossling 
 Croton, &c. Co. v. Ryder 
 Croughton's Trusts, In re 
 Crowe V. Ballard 
 
 V. Crisford 
 Crowley v. Richardson 
 Crowther, In re 
 
 V. Crowther 
 Croxall V. Shererd 
 Croxton, Ex parte 
 Crozier v. Crozier 
 
 V. Young 
 Cruce 17. Cruce 
 Crue V. Caldwell 
 Cruder v. Cruder 
 
 928 
 
 476 a 
 
 195, 432, 461 
 
 617 
 
 380 
 
 570 
 
 82 
 
 438 
 
 407 
 
 72, 382 
 
 150 
 
 252, 507 
 761 
 671 
 
 192, 206 
 451 
 858 
 
 348, 466 
 
 858, 871 
 6, 301, 321 
 891 
 371 
 149 
 471 
 104 
 
 660, 667 
 
 V. Halliday 268, 274, 280, 285, 401, 901 
 
 V. Heywood 612 
 
 V. Jones 334 
 
 Cruikshank v. Parker 506 
 
 Cruikshanks v. Roberts 72 
 
 Cruise v. Christopher 189 
 
 Cruiston v. Olcott 452 
 
 Crump, In re 654 
 
 V. Baker 913 
 
 V. Gerack 468 
 
 Cruse V. Barley 152, 160, 499 
 
 V. McKee 251, 254, 255 
 
 Cruselle v. Chastain 437 b 
 
 Crutcher v. Hord 215 
 
 Crutchfield, Ex parte 606 
 
 Cruwys v. Colman 112, 248, 256, 285 
 
 Cryder's Appeal 795, 798 
 
 Cuddy V. Waldron 886 
 
 Cueman v. Broadnax 301 
 
 Cuff V. Hall 490, 771 
 
 Culbertson v. The H. Witbeck Co. 166 
 
 Culpepper v. Aston 152, 597, 764, 770. 785, 
 
 789, 795, 796 
 
 Culross V. Gibbons 83 
 
 Cuh^er v. Culver 205 
 
 Cumberland v. Codrington 98, 562 
 
 Cumberland Coal Co. v. Hoffman Coal 
 
 Co. 206 
 
 Cumberland Coal Co. v. Sherman 207 
 
 Cumick V. Tucker 11.3 
 
 Cuming v. Robins 137 
 
 Cummings v. Boswell 544, 545 
 
 V. Cummings 127 
 
 V. Fullam 438 
 
 V. Miller 680 
 
 V. Sharp 662 
 
 V. Williamson 660, 768 
 
 Cummins v. Bromfield 888 
 
 V. Cummins 260, 261, 262, 264, 429, 
 
 454 
 Cumston v. Bartlett 511 c 
 
 Cunard's Trusts, Re 264 
 
 CunistoQ V. Bartlett 253 
 
 Cunliffe v. Cunliffe 
 Cunnack v. Edwards 
 Cunningham v. Autrobus 
 
 V. Davenport 
 
 V. Foot 
 
 V. Freeborn 
 
 V. Gray 
 
 V. McKinley 
 
 V. Moody 
 
 V. Parker 
 
 V. Pell 
 
 V. Schley 
 
 112 
 
 727, 730 
 
 633 
 
 82, 225 
 
 166 
 
 585, 593 
 
 577 
 
 863, 864, 865 
 
 323 
 
 511a, 570 
 
 876, 879, 881 
 
 539 
 
 Cunningham & Frayling, In re 248 
 
 Curd V, Field 790 
 
 Cureton v. Watson 456 
 
 Curling v. Curling 724, 728 
 
 V. Shuttleworth 602 c, 602 ;» 
 
 Cumick V. Tucker 113 
 
 Curran v. Green 277 
 
 Currant v. Jago 144 
 
 Currence v. Ward 126, 166 
 
 Currer v. Walkley 795 
 
 Currey, Re, Gibson v. Way 671 
 
 Currie v. Hart 590 
 
 V. Pye 747 
 
 V. Steele 185 
 
 V. White 82, 122, 231 
 
 Currier v. Studley 865 
 
 Curry v. Allen 861 
 
 V. Hill 764 
 
 V. Shrader 675 
 
 Curteis v. Candler 280, 476 «, 894, 899, 
 
 922, 928 
 
 Curtis, In re 593 
 
 V. Brown 728 
 
 V. Buckingham 602 ee 
 
 V. Curtis 871 
 
 V. Daniel 864 
 
 V. Engel 660 
 
 V. Fullbrook 501 
 
 V. Hutton 709, 741 
 
 V. Lakin 861 
 
 V. Lanier 218 
 
 V. Leavitt 592 
 
 V. Luken 160, 381, 385, 393, 532, 535 
 
 V. Mason 417, 419 
 
 V. Perry 165 
 
 V. Price 305, 319 
 
 V. Ripon 112, 113, 116 
 
 V. Smith 71, 275, 280, 615, 843 
 
 Curtis's Estate 917 
 
 Curtiss, In re 280 
 
 Curton V. Jellicoe 797 
 
 Cusack V. Cusack 361 
 
 V. White 214 
 
 Gushing v. Blake 324, 357, 358, 359 
 
 r. Danforth 206 
 
 V. Spaulding 299, 386 
 
 Custman v. Bonfield 428, 760 
 
 V. Coleman 359 
 
 Cushney v. Henry 38^ 240 
 
 Custance v. Cunningham 151 
 
 Cuthbert v. Baker 793 
 
 V. Chauvet 920 
 
 V. Rolf 648 
 
 Cutler V. Babcock 245 
 
 V. Griswold 149 
 
 V. Tuttle 126, 131, 132, 133, 137, 149, 
 
 165
 
 INDEX TO CASES CITED. 
 [References are to aectioiiB.] 
 
 Ivii 
 
 Cutler's Trusts 
 
 
 63;j, 030 
 
 D'Arcy ». Ilall 
 
 428, 431 
 
 Cuyler v. liradt 
 
 
 82, 130, 805 
 
 Dare r. Allen 
 Dargan r. Richardson 
 Durke r. Martyti 
 
 639 
 589, 593 
 443, 453 
 
 
 D. 
 
 
 V. Williamson 
 Darkiii v. iJarkin 
 
 476, 907 
 127 
 
 Dabnev v. Manning 308 
 Da Costa v. Da Pas 702, 715, 718, 724, 
 
 729 
 
 Daggett V. White 264 
 
 Dagley v. Tol ferry 624 
 
 D'Aguilar v. Driiikwater 511, 517, 518 
 
 Dailev V. New Haven 43, 277 
 
 Dakin v. Beresford 649 
 
 V. Dcmining 918 
 
 V. Savage 2H8 
 
 Daland 1'. Williams 245 
 
 Dale V. Hamilton 82 
 
 Daley v. Desbouvierie 512, 517, 518. 519 
 
 Dalheguey v. Tabor 246 « 
 
 Dallam v. Fitler 591 
 
 V. Wampole 667, 679 
 
 Dallmeyer, Jn re 397, 622 
 
 D'Almaine v. Anderson 286 
 
 Dalrymple v. Taneyhill 610 
 
 Dalston c. Coatsworth 183 
 
 Dalton V. Dalton 828 
 
 V. Hewen 795 
 
 V. Jones 200 
 
 «. Young 802 
 
 Dalton's Settlement 612 
 
 Daly V. Beckett 530 
 
 V. Bernstein 260 
 
 Dalzell V. Crawford 598, 794, 795, 796, 
 
 798 
 
 Dame v. Annas 784 
 
 Dammert v. Osbom 382, "29 
 
 Damon v. Bibber 602 <i 
 
 Damon's Case 739 
 
 Dan V. McKnight 218 
 Dana v. Bank of United States 31, 588, 
 
 590, 592 
 
 V. Dana 124, 127 
 
 V. Davenport 602 a a 
 
 V. Farrington 602 o, 602 r, 602 1, 602 a, 
 
 602 a; 
 
 V. Lull 591 
 
 V. Murray 382, 511 6 
 
 V. Newhall 218 
 
 V. Petersham 231 
 
 Dance v. Goldingham 86 
 
 Dandridge v. Minge 562 
 
 Danforth v. Briggs 145 
 
 Danforth's Estate 468 
 
 D'Angibau, In re 52 
 
 Daniel v. Daniel 330 
 
 V. Davidson 217, 828 
 
 V. Hollingshead 218 
 
 V. Newton 623 
 
 t'. Robinson 660 
 
 V. Uhley 50 
 
 V. Warren 451 
 
 Daniels v. Eldridge 386, 555 
 
 Danser v. Warwick 86 
 
 Danson, In re 394 
 
 Darby v. Calligan 680 
 
 Darcv V. Kclley 727 
 
 D'Arcy v. Blake 323, 871 
 
 V. Croft 487, 649 
 
 Darley v. Darley 107, 310, 612, 647, 648, 
 
 651 
 
 Darling, In re 699, 701 
 
 v.llammer 4C9 
 
 V. Potts 166, 195, 428 
 
 Darlington, Ex parte 615 
 
 v. l^arlington 448 
 
 V. McCooke 97 
 
 Darlington's Estate 206 
 
 Darnaby v. Watts 415, 790 
 
 D'Arnv v. Chesneau 345 
 
 Darrah r. McNair 94, 327, 436 
 
 Darrow v. Calkins 127, 343, 451 
 
 Dartmouth College v. Woodward 30, 44, 
 
 737, 742 
 
 Dartnall, In re 177 
 
 Darwell v. Darwell 421 
 
 Darwin i'. Hanley 591 
 
 Dashell r. Earle 639 
 
 Dashiel v. Att'y-Gen. 160, 724, 748 
 
 Dashwood v. Bulkeley 511, 512, 515, 517, 
 
 518,519 
 
 Daubigny v. Duval 243 
 
 Daubrev v. Cockburn 511 a 
 
 Daughady t'. Payne 232, 237 
 
 Davall V. New liiver Co. 434 
 
 Davant v. Guerard 330 
 
 Davenport v. Coltman 160 
 
 V. Davenport 680 
 
 r. Farrar 324 
 
 V. Kirkland 451 
 
 V. Prewett 633 
 
 V. Stafford 440 
 
 Davenport Plow Co. v. Lamp 828 
 
 Daveron, In re 382 
 
 Davev v. Durant 768, 780 
 
 David I'. Frond 924 
 
 Davidson v. Bowden 52 
 
 V. Foley 152 
 
 V. Gardner 654 
 
 V. Little 187, 188 
 
 V. Moore 275 
 
 Davidson's Ex'r v. Kemper 815 a 
 
 Davie v. Beardsham 38, 231 
 
 Davies v. Bush 784 
 
 V. Davies 160, 361, 618, 834 
 
 t'. Hodgson 53, 671 
 
 t'. Lee 540 
 
 V. Speed 379 
 
 V. Thomycroft 646, 652, 671 
 
 I'. Topp 563 
 
 V. Westcombe 776 
 
 Davies to Jones 313 
 
 Davis, Kx parte 286 
 
 r. Austin 618, 624 
 
 V. Banistable 732 
 
 r. Barrett 431 
 
 r. Bay State League 894 
 
 V. Bessehl 890 a 
 
 V. Boyden 865 
 
 V. Browne 816 
 
 V. Cain 647. 648 
 
 V. Charles River R. Co. 17, 328
 
 Iviii 
 
 Davis V. Cobum 
 V. Cotton 
 V. Davis 
 V. Dendj' 
 V. Eastman 
 V. Gardner 
 V. Hamlin 
 V. Harkness 
 V. Harman 
 V. Hayden 
 V. Hodgson 
 V. Howcote 
 V. Jackson 
 V. Johannot 
 V. Lamb 
 V. Marlborough 
 V. McNally 
 V. McNeil 
 V. Newton 
 V. Otty 
 V. Prout 
 V. Rhodes 
 V. Roberts 
 V. Schmidt 
 V. Scovern 
 V. Settle 
 17. Simpson 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 80, 8fi-l 
 
 865 
 
 124, 127, 639, 8in 
 
 912 
 
 471, 869 
 569 
 206 
 618 
 
 441, 456 
 302 
 849 
 783 
 545 
 610 
 232 
 69, 188 
 192 
 411 
 627, 629, 632 
 84, 226 
 648 
 521 
 618 
 6.58 
 206 
 166 
 195 
 
 V. Spui-ling 246, 402, 403, 404, 417 
 
 V. Stambaugh 84, 91, 245 
 
 V. Tingle 170, 849 
 
 V. Vincent 511 c 
 
 V. Wetherell 133 
 
 V. Whitehead 79 
 
 17. Williams 312 
 
 Davis, Petitioner 610 
 
 Davis's App. 786 a 
 
 Estate 590 
 
 Trusts, Re 727 
 
 Davoue v. Fanning 195, 197, 205, 294, 
 
 428, 499, 501 
 
 Davy V. Hooper 250, 251, 255 
 
 V. Seys 892 
 
 Dawes v. Betts 787 
 
 Dawson, In re 382 
 
 Dawson v. Clarke 152, 157, 158, 160, 910 
 
 V. Dawson 38, 93, 97, 98, 104, 240, 280 
 
 V. Hearne 119 
 
 V. Jay 603 
 
 V. Lawes 210 
 
 V. Massey 200, 468 
 
 V. Parrot 901 
 
 V. Small 70G 
 
 Day 17. Arundel 219 
 
 17. Croft 818 
 
 V. Davis 866 
 
 17. Dav 891, 894 
 
 V. Roth 86, 126, 127, 135 
 
 17. Thwaites 5116 
 
 Dayton v. H. B. Claflin Co. 837 
 
 Deaderick v. Cantrell 404, 416, 418, 420, 
 
 421, 466 
 
 17. Watkins 187 
 
 Dean, In re 705 
 
 V. Adler 104 
 
 V. Dean 75, 76, 84, 85, 126, 232, 378, 
 
 855 
 V. Home for Aged Women 903 a 
 
 V. Long 520 
 
 V. Mitchell 322 
 
 Dean 17. Sandford 277 
 
 Deans v. Scriba 913 
 
 Uearin v. Fitzpatrick 627, 929 
 
 Dearie ». Hall 438 
 
 Deatly v. Murphy 189 
 
 De Barante v. Gott 38 
 
 Debenham i7. Ox 214 
 
 Ue Bevoise i7. Sandford 128, 195, 921 
 
 De Biel v. Thompson 208 
 
 Debney 17. Eckett 477 
 
 De Bouchout v. Goldsmid 243 
 
 De Caters v. Chaumont 195, 593 
 
 De Celis v. Porter 195 
 
 De Chambrun v. Cox 428 
 
 17. Schernierhoru 212 
 
 Deck 17. Tabler 145 
 
 Decouche v. Lavetier 223 
 
 Dedham Bank v. Richards 593 
 
 Deem 17. Millikin 181 
 
 Deen 17. Cozzens 275, 619, 620 
 
 Deerhurst v. St. Albans 339, 360, 373, 390 
 
 Deering v. Adams 262, 308, 312, 315 
 
 17. Kerfoot 560 
 
 17. Tucker 920 
 
 De Forrest 17. Bacon 593 
 
 Deg 17. Deg 82, 137, 511 c, 837 
 
 De Garcin 17. Lawson 718, 726, 741 
 
 Degman v. Degman 511 c 
 
 De Graffenreid v. Green 541 
 
 Dehon v. Foster 72 
 
 Deibert's Appeal 299, 305, 310 
 
 Deihl V. King 380 
 
 De Jarnette v. De Jarnette 453, 461 
 
 Deklyn v. Watkins 71 
 
 Delalield 17. Anderson 187 
 
 17. Calden 891 
 
 Delagarde i7. Larapriere 630, 645 
 
 Delane i7. Delane 141 
 
 Delaplaine i7. Lawrence 774 
 
 Delaplane 17. Lewis 259 
 
 Delassus i7. Poston 2-32 
 
 De Laurencel v. De Boom 257 
 
 Delavante, In re 890 
 
 Dellinger's App. 672 
 
 Delmar's Trust, In re 701, 720 
 
 Delonev v. Hutcheson 136 
 
 Deloraiie v. Brown 855, 862, 868 
 
 Delouche v. Savetier 863 
 
 Demall 17. Morgan 602^ 
 De Manneville v. Crompton 171, 213, 460, 
 466, 508, 509 
 
 V. De Manneville 603 
 
 Deraaree v. Driskill 149 
 
 Demarest 17. Wynkoop 218, 602 t, 602 bh, 
 
 080, 855 
 
 De Montmorency v. Devereaux 202 
 
 Demott V. Muller 680 
 
 Den V. Crawford 299 
 
 V. Hanks 299 
 
 Denholm v. McKay 607 
 
 Denike v. Harris 440, 452 
 
 Dening i7. Ware 100, 111 
 
 Denn i7. McKnight 217 
 
 Denne 17. Judge 263, 273 
 
 Dennett ?7. Dennett 299 
 
 Dennis v. Badd 611 
 
 17. Dennis 528 
 
 V. Holsapple 288 
 
 V. McCagg 215
 
 INDEX TO CASES CITED. 
 [Refereuces are to aections.] 
 
 lix 
 
 Dennis v. McCoy 
 
 
 
 206 
 
 Deunison r. Goehring 
 
 98, 104, 
 
 109, 
 
 111, 
 
 
 140, 143, 
 
 35'J 
 
 361 
 
 V. Nigh 
 
 
 
 642 
 
 Denny v. Allen 
 
 
 
 918 
 
 V. Kettel 
 
 
 
 257 
 
 Dent V. Allcroft 
 
 
 
 "Oil 
 
 V. Bennett 
 
 180, 190 
 
 204 
 
 210 
 
 V. Dent 
 
 
 477 
 
 552 
 
 Denton v. Davis 
 
 83, 841 
 
 844 
 
 965 
 
 V. Denton 
 
 
 
 329 
 
 V. Doiiner 
 
 
 187 
 
 188 
 
 V. McKenzie 
 
 
 
 167 
 
 Denver v. Druce 
 
 722, 
 
 729 
 
 731 
 
 De Peyster v. Beekraan 
 
 
 
 873 
 
 V. Clarkson 
 
 
 463 
 
 468 
 
 t'. Clendinning 240 
 
 259, 262, 263, 
 
 275, 
 
 
 
 280 
 
 541 
 
 V. Farrars 
 
 343, 
 
 411 
 
 414 
 
 V. Gould 
 
 120 
 
 137, 
 
 138 
 
 V. Michael 
 
 
 
 537 
 
 De Peyster's Case 
 
 
 
 918 
 
 De Fuy v. Standard M. 
 
 Co. 
 
 
 72 
 
 Derasmes v. Dunham 
 
 
 
 275 
 
 Derbishire v. Home 
 
 671, 
 
 846, 
 
 84!) 
 
 Derby v. Derby 
 
 699, 720 
 
 724 
 
 748 
 
 Deringer v. Deringer 
 
 
 
 242 
 
 Derome i'. Vose 
 
 
 
 843 
 
 Deroy v. Richards 
 
 
 
 279 
 
 Derry v. Derry 
 
 
 127 
 
 828 
 
 V. Peck 
 
 
 
 177 
 
 Derush v. Brown 
 
 
 
 322 
 
 De Kuyter i'. St. Peter's 
 
 Church 
 
 588 
 
 754 
 
 De Saiissure v. Lj-ons 
 
 
 
 499 
 
 Desbody v. Boyville 
 
 
 
 513 
 
 Desborough v. Harris 
 
 
 
 792 
 
 De Silver's Estate 
 
 
 
 189 
 
 De Tablev, In re 
 
 
 
 477 
 
 De Teissier's Settled Estates, Re 
 
 
 552 
 
 De Teissier's Trust, 7m re 
 
 
 477 
 
 De Themmines v. De Bonneval 
 
 702, 
 
 715, 
 
 718, 726, 741 
 De Vaughn v. Hutchinson 358 
 
 Devaynes v. Robinson 768, 800, 822, 823, 
 
 845, S78 
 Devenish v. Baines 169, 181, 182 
 
 Devey v. Thornton 
 Devin v. Henderchott 
 De Vinnev v. Norris 
 
 V. Reynolds 
 De Visnc, In re 
 Devon's Settled Estates, In re 
 De Voss V. Richmond 
 Devoy v. Devoy 
 Dewall V. Covenhoven 
 Dewdney, Ex parte 
 De Weever r. Rockport 
 Dewey v. Adiims 
 
 V. Littlejohn 
 
 V. Long 
 Dewey's Ex'rs v. Rugglea 
 De Witt V. Eldred 
 De Wolf V. Chapin 
 Dexter v. Arnold 
 
 V. Getting 
 
 »• Evans 
 
 V. Gardner 
 Stewart 
 
 901, 927 
 321 
 202 
 783 
 144 
 503 
 225 
 
 144, 147 
 
 629, 654 
 228, 481, 855 
 023 
 591 
 591 
 126 
 795 
 043 
 585 
 228 
 
 277, 426 
 
 114 
 
 705, 706, 724, 737, 748 
 
 231 
 
 Deys V. Van Valkenberg 
 
 602 i 
 
 Dial V. Dial 
 
 
 518, 890 
 
 Dias V. Brunei! 
 
 
 843 
 
 Dibble V. Mitchell 
 
 
 237 
 
 Dibbs V. Goren 
 
 
 931 
 
 Dick V. Dick 
 
 
 79 
 
 t'. Harbv 
 
 
 248, 253 
 
 V. Pitchford 386 a, 
 
 555, 
 
 646, 652, 
 653, 921 
 
 Dick's Estate 
 
 
 468 
 
 Dickason v. Fisher 
 
 
 237 
 
 V. Williams 
 
 
 347 
 
 Dickel t>. Smith 
 
 
 166 
 
 Dickenson v. Davis 
 
 
 143 
 
 Dickerman v. Abmhams 
 
 
 660 
 
 Dickerson v. Carroll 
 
 
 815c 
 
 V. Smith 
 
 
 175 
 
 Dickerson's App. 
 
 
 86, 104 
 
 Dickinson, Kx parte 
 
 
 332 
 
 r. Chase 
 
 
 238 
 
 V. Coates 
 
 
 87 
 
 V. Codwise 
 
 
 127, 129 
 
 V. Conniff 
 
 
 526 
 
 V. Dickinson 
 
 76 
 
 582, 772 
 
 V. Hoomes 
 
 
 71 
 
 V. Player 
 
 
 454 
 
 V. Shaw 
 
 
 145 
 
 V. Teasdale 
 
 
 863 
 
 Dickinson, Appellant 
 
 
 453 
 
 Dickson, In re 
 
 
 615 
 
 V. Harrison 
 
 
 877 
 
 V. Lockyer 
 
 
 225 
 
 V. Montgomery 724 
 
 728 
 
 731, 748 
 
 Dickson's Trust 
 
 
 555, 930 
 
 Diefendorf v. Spraker 
 
 268 
 
 401, 921 
 
 Dietterich v. Heft 
 
 
 471 
 
 Diffenderffer v. Winder 463, 
 
 468, 
 
 471, 472, 
 918 
 
 Digby V. Irvine 
 
 
 653 
 
 Digges's Case 
 
 
 5116 
 
 Diggles, In re 
 
 
 114 
 
 Diggs V. Walcott 
 
 
 72 
 
 Dike V. Ricks 
 
 
 785, 789 
 
 Dilkes V. Broadmead 
 
 
 932 
 
 Dill r. McGehee 
 
 
 843 
 
 Dillard v. Crocker 
 
 126 
 
 219, 221 
 
 V. Dillard 
 
 
 149, 248 
 
 V. Tomlinson 
 
 
 462, 468 
 
 Dillaye v. Commercial Bank 
 
 
 218, 225 
 
 t'. Greenough 
 
 
 95, 158 
 
 Dillor i'. Brabaker 
 
 
 851 
 
 Dillinger v. Llewelyn 
 
 
 97 
 
 Dillon V. Bone 
 
 
 100 
 
 V. Coppin 97, 98. 100, 
 
 103, 
 
 107, 111 
 
 r. Grace 
 
 
 656 
 
 Dilworth V. Rice 
 
 
 500 
 
 Dimes v. Scott 402, 422, 450, 
 
 467, 
 
 547. 548, 
 
 
 549 
 
 ,551,847 
 
 Dinn v. Grant 
 
 
 231 
 
 Dinsmore ?'. Biggert 
 
 
 318, 319 
 
 V. Racine 
 
 
 757 
 
 D'Tnvornois v. Leavitt 
 
 
 590 
 
 Dinwiddle t". Bailey 
 
 
 871 
 
 Dipple V. Tories 
 
 
 86,97 
 
 Disher r. Disher 
 
 
 97 
 
 Dismukes r. Terry 
 
 
 137 
 
 DisRcnger, Re 
 
 
 613 
 
 Ditmars r. Smith 
 
 
 76 
 
 Dix t'. Akcrs 
 
 
 674 
 
 r. Burford 
 
 263, 
 
 417, 419
 
 Ix 
 
 INDEX TO CASES CITED. 
 
 [Belerences are to sections.] 
 
 Dix V. Cobb 
 
 V. Read 
 Dixon V. Caldwell 
 
 V. Dixon 
 
 V. Gavfere 
 
 V. Hiil 
 
 V. Homer 
 
 V. Horner 
 
 V. McCue 
 
 V. Miller 
 
 V. Olmius 
 
 V. Saville 
 
 V. Smith 
 Dobbins v. Stevens 
 Dobson V. Land 
 
 V. Leadbeater 
 
 V. Pearce 
 
 V. Racey 195, 197, 
 
 Docker v. Somes 427, 
 
 Dockey v. McDonald 
 
 V. McDowell 
 Docksey v. Docksey 
 Dod V. Dod 
 Dodd V. Geiprer 
 
 V. Ghiselin 
 
 V. Wake 
 
 V. Winship 
 Dodds V. Hills 
 Dodge V. Cole 
 
 V. Essex Ins. Co. 
 
 V. Hogan 
 
 V. Hollinshead 
 
 V. Manning 
 
 V. Pond 
 
 V. Stevens 
 
 V. Tulleys 
 
 V. Williams 
 
 V. Woolsey 
 Dodkin v. Brunt 
 Dodson V. Ball 304, 
 
 V. Dodson 
 
 V. Hay 
 
 V. Samnell 
 
 V. Simpson 
 Doe V. Aldridge 
 
 V. Bennett 
 
 17. Biggs 
 
 v. Cafe 
 
 V. Cavan 
 
 V. Claridge 308, 
 
 V. Collier 
 
 V. Cook 
 
 V. Copesteak 
 
 V. Duval 
 
 V. Edlin 
 
 V. Ewart 
 
 V. Field 
 
 V. Godwin 
 
 V. Halcombe 
 
 V. Hardwicke 
 
 V. Harris 
 
 V. Hawthorne 
 
 V- Hicks 
 
 V. Hilder 
 
 V. Hole 
 
 V. Homfray 
 
 V. Howells 
 
 V. Howland 
 
 438 
 
 272 
 
 211, 218 
 
 238, 640 
 
 235 
 
 221 
 
 275, 287, 918 
 
 272 
 
 456 
 
 661, 675 
 
 181, 648 
 
 323 
 
 817 
 
 202 
 
 431, 437 
 
 219 
 
 72 
 
 , 199, 206, 228 
 
 429, 430, 454, 
 
 464, 470 
 
 914 
 
 456 
 
 150 
 
 361 
 
 642 
 
 52 
 
 380, 383 
 
 927 
 
 829 
 
 127 
 
 855 
 
 568, 583 
 
 685 
 
 576 
 
 748 
 
 195, 816 a 
 
 875 
 
 398, 448 
 
 816 
 
 38, 240 
 
 311, 320, 652 
 
 366 
 
 323, 324, 371 
 
 455 
 
 225, 810 
 
 703 
 
 338 
 
 297, 305, 306 
 
 308, 315, 357 
 
 5116 
 
 310, 312, 317 
 
 298 
 
 355 
 
 703 
 
 602 A 
 
 305 
 
 305 
 
 304, 312 
 414, 505 
 
 530 
 530 
 261, 267, 270 
 702 
 312, 319 
 349 
 530 
 
 305. 313 
 698, 699 
 
 315 
 
 Doe V. Hughes 
 
 V. Ironmonger 
 
 V. Keen 
 
 V. Keir 
 
 V. Langdon 
 
 V. Lightfoot 
 
 V. Lloj'd 
 
 V. Martin 
 
 V. Nepeau 
 
 V. Nichols 
 
 V. Passingham 
 
 17. Phillips 
 
 V. Pitcher 
 
 V. Pratt 
 
 V. Price 
 
 17. Read 
 
 V. Roake 
 
 V. Robinson 
 
 V. Roe 
 
 V. Routledge 
 
 V. Scott 
 
 V. Scribner 
 
 V. Simpson 
 
 V. Smeddle 
 
 V. Smith 
 
 V. Stace 
 
 V. Steaple 
 
 V. Stephens 
 
 t". Sybourn 
 
 V. Thorley 
 
 V. Vincent 
 
 V. Walbank 
 
 V. Walker 
 
 17. Willan 
 
 V. Williams 
 
 17. Woodhouse 
 
 17. Wrighte 
 Doebler's App. 
 Doering v. Doering 
 D'Oeschener i7. Emerson 
 
 1'. Scott 
 Doggett 17. Hart 
 
 V. Lane 
 Dolan, In re 
 
 17. Jlayor of Baltimore 
 
 17. McDerinot 
 Dolbiac v. Dolbiac 
 Dold V. Geiger 
 Dolder v. Bank of England 
 Dole 17. Lincoln 
 
 V. Wilson 
 Dollinger's Appeal 
 Dolliver v. DoUiver 
 Dolman 17. Nokes 
 Domestic & F. Mis. Society v. Gaither 729 
 Dominick v. Michael 34, 499, 500 
 
 17. Sayre 250, 414 
 
 Dommett i7. Bedford 388, 555 
 
 Donahoe v. Chicago Cricket Club 96, 202 
 
 V. Con rah V 83 
 
 Donalds v. Plumb 347, 660 
 
 Donaldson v. American Tract Soc. 
 
 391, 748 
 
 17. Donaldson 98, 100, 102, 105 
 
 17. Pusev 918 
 
 17. West Bank 640 
 
 Doncaster i7. Doncaster 359, 372, 373 
 Donegal's Case 189 
 
 Doniphan i7. Paxton 602^ 
 
 501, 597, 802, 803, 805 
 
 305 
 
 871 
 
 5116 
 
 349 
 
 338 
 
 354 
 
 785 
 
 929 
 
 311 
 
 301, 304 
 
 866 
 
 706 
 
 570 
 
 346 
 
 350 
 
 511c 
 
 408, 602 A, 602 rta 
 
 490 
 
 165, 303 
 
 305 
 
 592 
 
 308, 313 
 
 312 
 
 270 
 
 809 
 
 353 
 
 529 530 
 
 349, 350, 351, 352^ 355 
 
 5116 
 
 511c 
 
 308 
 
 93 
 
 308, 312, 318 
 
 530 
 
 313 
 
 352, 355 
 
 3.58 
 
 260 
 
 171, 230 
 
 670 
 
 17, 328 
 
 204 
 
 305 
 
 768 
 
 699, 705 
 
 665 
 
 628 
 
 826 
 
 87 
 
 863 
 
 77 
 
 828 
 
 179
 
 INDEX TO CASES CITED. 
 [References are to Bectioos.] 
 
 bd 
 
 Donisthorpcr. Porter 348 
 
 Don 1 in r. IJradley 126 
 
 Donne v. Hart 633 
 
 V. Lewis 563 
 
 Donneli\- f. Boston Oath. Gem. Ass'n 72y 
 
 Donohue v. Chase 602 a 
 
 Doolan v. Blake G70 
 
 Doolittle V. Lewis 500, 602 <7, 602 «, 602 ee 
 
 Doran i-. Doran 127 
 
 V. Simpson 225 
 
 r. Wiltshire 597, 776, 794, 7'JG 
 
 Dorance r. Scott 601 
 
 Dorchester v. Effingham 390, 443 
 
 Doreinus v. Lewis 591 
 
 Dorland r. Dorland 499, 501 
 
 Dormer i'. Fortescue 871, 872 
 
 V. Thurland 511 b 
 
 Dornford v. Dornford 468, 472, 847 
 
 Dorr V. Clapp 315 
 
 V. Davis 127 
 
 V. Wainwright 262, 263, 574 
 
 Dorrah v. Hill 60 
 
 Dorranee's Estate 913 
 
 Dorris v. Miller 468 
 
 Dorsett v. Dorsett 555 
 
 Dorsev f. Banks 878 
 
 r." Clarke 126,133,135 
 
 V. Dorsey 209, 918 
 
 V. Garcey 15, 843 
 
 V. Gilbert 610 
 
 V. Thompson 275 
 
 V. Wolcott 189 
 
 Doswell V. Anderson 118, 380 a 
 
 V. Buchanan 221 
 
 Dotv V. Hubbard 607 
 
 'v. Mitchell 655, 661 
 
 V. Wilson 100 
 
 Dougars v. Rivaz 742 
 
 Dougherty r. Shillingsburg 163 
 
 Douglas, In re 347 
 
 V. Corrj' 803 
 
 V. Cruger 920 
 
 Douglass t'. Allen 597 
 
 V. Andrews 613 
 
 V. Archbutt 432, 904 
 
 V. Browne 402 
 
 V. Congreve 359, 551 
 
 V. Culverwell 202 
 
 V. Horsefall 874 
 
 V. Lucas 141 
 
 V. Price 143 
 
 V. Russell 68 
 
 I'. Satterlec 421 
 
 V. Stephenson's Ex'or 443 
 
 Douthitt V. Stinson 890 a 
 
 Pove r. Everard 261 
 
 Dover. Ex parte 263, 281 
 
 V. Gregory 570 
 
 V. Kennedy 780 
 
 V. Rhea " 79 
 
 Dow V. Dawson 438 
 
 V. Dow 276 
 
 r. Jewell 126, 132, 140, 141, 865 
 
 V. Plainer 590 
 
 Dow's Petition 610 
 
 Dowd t'. Tucker 171, 181, 182 
 
 Dowel 1 V. Dew 650 
 
 Dowlinff r. Belton 611 
 
 V. Eeeley 209 
 
 Dowling V. Hudson 795 
 
 V. Maguire 653, 657, 658 
 
 Dowman r. Rust 569, 570, 796 
 
 Down V. Morris 327, 435 
 
 r. Worrall 714, 721, 731 
 
 Downer v. Church 152 
 
 V. Downer 507 
 
 Downes v. Bullock 851, 932 
 
 r. Grazebrook 128, 195, 347, 770, 786 
 
 V. Harper Hospital 729 
 
 f. Hodgson 931 
 
 V. Jeimings 183, 208 
 
 V. Thomas 883 
 
 r. Timperon 656 
 
 Downey v. Bullock 618 
 
 Downing r. Marshall 894 
 
 V. Townsend 109 
 
 Downs f. Richards 129 
 
 Dowse V. Gorton 466 
 
 Doyle V. Blake 259, 261. 202. 264, 268. 
 
 401, 403, 421, 422, 914, 927 
 
 v. Coyle 511 c 
 
 V. Peerless 246 a 
 
 V. Sleeper 12G, 149 
 
 V. Whalen 727 
 
 Doyley v. Att.-Gen. 249, 255, 258, 503 
 
 D'Oylevf. Loveland 598 
 
 Doyly V. Sherratt 411 
 
 Drake v. Crane 455, 466 
 
 r. Drake 371 
 
 r. Moore 602 dd 
 
 V. Pywall 17 
 
 V. Rogers 592 
 
 V. Whitmore 768 
 
 f. Wild 863 
 
 Drakeford v. Wilks 226 
 
 Drane v. Davliss 500 
 
 t'. Guuter 268, 274, 336, 602 m 
 
 Draper v. Minor 275 
 
 I'. Stone 844 
 
 Drapers' Company r. Davis 203 
 
 Drasier v. Brereton 96, 417, 447 
 
 Drayton v. Drayton 501 
 
 V. Grimke ' 500 
 
 V. I'ocock 764, 770, 787, 807 
 
 Drennen v. Walker 215 
 
 Dresser v. Dresser 112 
 
 Drever v. Mawdesley 600 
 
 Drew r. Martin 144 
 
 V. Norbury 223 
 
 V. Waketield 891, 899 
 
 Dringr. Greetham 481 
 
 Drinkwater v. Combe 348 
 
 Driver r. Fortner 602 o, 602 oc 
 
 Drohan r. Drohan 484, 809 
 
 Drovers' & M. Nat. Bank v. Roller 828 
 
 Druce r. Denison 635 
 
 Druid Park Heights Co. v. Oetticger 
 
 249, 508 
 
 Drummond v. St. Albans 872 
 
 r. Tracy 49, 50 
 
 Drur}- r. Connor 245 
 
 r. Cross 207 
 
 r. Drury 34 
 
 V. Hook 214 
 
 r. Natick 500, 700, 724, 748 
 
 V. Scott 626, 668 
 
 r. Smith 87 
 
 Drusadow v. Wilde 611 c, 783
 
 Ixii 
 
 Drydeii r. Frost 
 
 V. Ilannaway 
 Dryden Ad. v. Stephens 
 Drysdale's Appeal 
 Duberly v. Day 
 Dubless V. Flint 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 238 
 133 
 770 
 
 205, 918 
 633 
 
 820, 8-27 
 
 Dublin Case 42, 732, 733, 734, 744, 745, 
 
 748 
 
 Dubois, Ex parte 332 
 
 V. Hall '232 
 
 Dubose V. Dubose 602 
 
 Dubs V. Dubs 323, 324, 652 
 
 Ducie v. Ford 79 
 
 Ducker v. Burnham 252 
 
 Duckett V. National M. Bank 122, 860 
 
 V. Skinner 610 
 
 Duckworth v. Ocean S. Co. 411 
 
 Dudgeon, In re 699 
 
 V. Connley 988 
 
 Dudley, £x parte 613 
 
 V. Batchelder 133 
 
 V. Bosworth 139, 143, 146, 147 
 
 V. Dudley 122 
 
 Duff V. McDonough 223 
 
 V. Wilson 211 
 
 Dufford V. Smith 453, 803, 917 
 
 Duffy V. Calvert 284, 598, 602 w. 787, 
 
 791, 796, 797 
 
 V. Duncan 468, 918 
 
 V. McGuiness 347 
 
 V. Masterson 134 
 
 Duffy's Trust, In re 634 
 
 Dugan V. Vattier 221 
 
 Dugas V. Gilbeau 204, 205 
 
 Dugdale, In re 378 
 
 V. Dugdale 903 a 
 
 Duggam V. Kelly 515 
 
 Duggan V. Slocum 472, 700, 709, 741 
 
 Du Hourmelin v. Sheldon 64 
 
 Duke V. Fuller 705, 710, 730, 748 
 
 Duke of Norfolk v. Brown 161 
 
 Duke of Norfolk's Case 377, 379, 382, 383 
 
 Dulanev v. Willis 95, 260 
 
 Dulany V. Middleton 382 
 
 Dulin V. McCaw 658 
 
 Dumas, Ex parte 345 
 
 Dummer v. Chippenham 42, 511 a 
 
 V. Pitcher 144, 146, 162 
 
 Dumoncel v. Dumoncel 64 
 
 Dumond v. Magee 627, 629 
 
 Dunbar, In re 77, 83 
 
 V. Mever 680, 680 
 
 V. Tre'dennick 206, 217, 828 
 
 r. Woodcock 451 
 
 Duncan v. Camberlayne 438 
 
 V. Campbell 634 
 
 V. Dixon 627 
 
 V. Findlater 744. 914 
 
 V. Forrer 136 
 
 V. Jaudon 225, 814 
 
 V. Johnson 221 
 
 V. McCalmont 72 
 
 Duncan's Appeal 213 
 
 Dunch V. Kent 428, 585, 593, 597, 795, 
 
 79'', 
 Duncklee v. Butler 398 
 
 Duncomb v. N. Y. H. & No. R.R. Co. 
 
 129 
 Duncombe v. .\lston 480, 487 
 
 Duncommer's Appeal 417, 419 
 
 Dundas v. Biddle 48, 511 b 
 
 V. Blake 559 
 
 Dungannon v. Smith 385, 389 
 
 Duuhani v. Chatham 75 
 
 V. Isett 757 
 
 V. Milhous 539 
 
 V. Presby 21 
 
 V. Waterman 590 
 
 Dunkley v. Duiikley 626, 632, 635, 636 
 
 Dunklin v. Wilkins 69 
 
 Dunlap I'. Dunlap 82 
 
 V. Harrison 65 
 
 V. Mitchell 195, 205, 428 
 
 V. Plumb 655 
 
 Duulop V. Burnett 232, 239 
 
 V. Dunlop 85 
 
 V. Hepburn 55 
 
 V. Hubbard 891 
 
 Dunnian, Ex parte 780 
 
 Dunn V. Berkshire 82 
 
 V. Chambers 187, 188, 189 
 
 V. Dunn 195, 453, 455, 460, 847 
 
 V. Raley 95 
 
 V. Sargeant 639 
 
 V. Seymour 873 
 
 V. Zwilling 245 
 
 Dunnage v. White 157, 184, 185 
 
 Dunne v. Dunne 457, 552 
 
 Dunnica v. Coy 164 
 
 Dunning v. National Bank 500, 501 
 
 V. Pike 686 
 
 Dunscomb v. Dunscomb 240, 462, 468, 900 
 
 V. Greenacre 629, 633 
 
 Dunster v. Glengall 438 
 
 Dunwoodie v. Reed 523 
 
 Duplex V. Roe 295 
 
 Dupont, Ex parte 55 
 
 V. Johnson 612 
 
 Dupre V. Thompson 98 
 
 Durand v. Durand 672 
 
 Durant v. Fitley 672 
 
 V. Lallev 639 
 
 V. Ritchie 32, 299, 301 
 
 V. Smith 114 
 
 Durfee, In re 276 
 
 Durham v. Crackles 633 
 
 Durkin v. Langley 437 o 
 
 Durling v. Hammer 429 
 
 Durnford v. Lane .34 
 
 Durour v. Motteux 701, 706 
 
 Durpee v. Pavitt 142 
 
 Durr V. Bowver 627, 632 
 
 Durrett v. Com'th 453 
 
 Dustan v. Dustan 901 
 
 Dutch Church v. Mott 349, 351 
 
 Dutch Reformed Church v. Bandon -393 
 
 Dutton V. Cotton 6027>, 602 g 
 
 V. Morrison 587, 590 
 
 V. Poole 181, 182 
 
 Duval t'. Getting 110 
 
 Duval's App. 768 
 
 Du Val V. Mar.«hall 133 
 
 Duvale v. Duvale 82 
 
 Duvall V. Bibb 232, 239, 299 
 
 V. Covenhoven 843 
 
 V. Fanners' Bank 627, 632 
 
 V. Graves 647 
 
 Dwight V. Pomroy 226
 
 Dve r. Beaver Creek Church 
 
 7.J0 
 
 Dyer v. Dyer 12G, 14a, 145, 140, 
 
 101, 102, 
 
 
 GU 
 
 V. Jacoway 
 
 830 
 
 V. Leacli 
 
 277 
 
 V. Potter 
 
 891 
 
 V. Uiky 
 
 415 
 
 V. Sliuflleff 
 
 199 
 
 Dver's A pp. 
 
 82 
 
 Dyett I'. Central Trust Co. 299 
 
 520, 790 
 
 V. Coal Co. 
 
 655, G<;u 
 
 Dvkes V. McVay 
 
 849 
 
 D3-oU's Estate 463, 
 
 408, 918 
 
 E. 
 
 Eade v. Eade 112, 113, 116 
 
 Eager v. Barnes 418, 840 
 
 Eagle Fire Company v. Lent •i'i 
 
 Eales r. England 112, 116, 325 
 
 Eames t'. Hardin 
 
 t'. Wheeler 
 Earl, In re 
 Earl of Bath's Case 
 Earl of Bute v. Short 
 Earl of Darlington r. Putney 
 Earl of Oxford v. Albemarle 
 Earle r. Earle 
 
 V. Huntingdon 
 
 r. Wood 
 Earle's Trusts, In re 
 Earlom v. Saunders 
 Early v. Doe 
 Earnhart v. Eamhart 
 Earp's Appeal 
 
 Will 
 Ease r. Howard 
 East r. East 
 
 V. Lowndes 
 
 V. Kyall 
 
 v. Twyford 
 East Greenstead's Case 
 Easterbrooks v. Tilliughast 160, 724, 748 
 Easterly r. Keney 386 a 
 
 Eastern R. K. Co. In re 280 
 
 Eastham v. Roundtree 127 
 
 Eastman v. Cooper 
 
 
 814 
 
 V. Davis 
 
 
 863 
 
 Easton t'. Carter 
 
 
 262 
 
 Eaton V. Eaton 
 
 
 75,77 
 
 V. George 
 
 
 685 
 
 V. Green 
 
 
 220 
 
 V. Landor 
 
 
 902 
 
 V. Smith 
 
 273, 
 
 284, 290, 294, 
 
 
 497 
 
 507, 508, 721 
 
 V. Wason 
 
 
 680 
 
 V. Whiting 
 
 
 602 bb, 602 d 
 
 r. Wits 
 
 
 115 
 
 Eaves i\ Ilickson 
 
 402 
 
 851, 929, 931 
 
 Ebberts's App. 
 
 
 127 
 
 Eberhardt v. Perolia 
 
 
 114 
 
 Eberts v. Eberts 
 
 
 200 
 
 Ebrand v. Dancer 
 
 
 54, 130, 144 
 
 Eccleston r. Skelmersdale 
 
 876 
 
 Echliff V. Baldwin 
 
 
 602 ee 
 
 Echols V. Dimik 
 
 
 602 (Vrf 
 
 Eckels V. Stewart 
 
 
 304 
 
 Eckford v. De Kay 
 
 
 458, 606 
 
 INDEX TO CASES CITED. 
 [References are to sectiona.] 
 
 Edd lesion v. Collins 
 Eddowes, In re 
 Eddy V. Ilartshorne 
 V. Smith 
 V. Traver 
 Edelen v. Edelen 
 Eden v. Foster 
 Edgar v. Doniially 
 Edge V. Salisbury 
 Edgell r. Haywood 
 Kiigerly v. Barker 
 Edgington v. Williams 
 Edie V. Applegate 
 Edmands v. Bird 
 
 r. Crenshaw 205, 
 V. Dennington 
 V. Peake 
 V. Townshend 
 Ednieston v. Lyde 
 Edminster v. I'liggins 
 Edmondson v. Dysod 
 
 V. Walsh 
 Edmund's App. 
 Edson V. Bartow 
 Edwards i'. Bates 
 p. Bohaunon 
 V. Burt 
 V. Carter 
 V. Culberson 
 V. Edwards 
 V. Fashion 
 V. Field 
 V. Freeman 
 V. Graves 
 V. Grove 
 V. Hall 
 V. Harvey 
 V. Jones 
 V. Lewis 
 f. Lowndes 
 V. Meyrick 
 V. Miilbank 
 r. Morgan 
 V. Pike 
 ». Roberts 
 V. Sheridan 
 V. Tuck 
 V. Warwick 
 V. Williams 
 Eedes v. Eedes 
 Etiand v. Efland 
 Egbert v. Brooks 
 I'. Butler 
 V. Schultz 
 Egertou v. Brownlow 
 17. Carr 
 V. Conklin 
 V. Egerton 
 Eglin V. Sanderson 
 Kpmoiit V. Smith 
 Ehlen I'. Elilen 
 Eichelberger v. Barnitz 
 Eidsforth v. Armistead 
 Eipper 1". r.enner 
 Eland r. Baker 
 
 V. Eland 597, 795, 
 Elborne r. Goode 
 F-lder, Ex parte 
 Eldredge r. Greene 
 
 126 
 
 98 
 
 460 
 
 171, 180 
 
 112 
 
 5116 
 
 708 
 
 260, 417 
 
 858 
 
 705, 724, 733, 748 
 
 93 
 
 401 
 
 602 r 
 
 358 
 
 299, 305, 545 
 
 556 
 
 298 
 
 440 
 
 395 
 
 747, 901 
 
 359, 372 
 
 830 
 
 bdii 
 
 52 
 
 252 
 
 121 
 
 602/ 
 
 238 
 
 679 
 
 734, 742 
 
 127 
 
 256 
 
 570 
 
 277, 371, 382, 736 
 
 149 
 
 818 
 
 189 
 
 418, 422, 432, 918 
 
 653 
 
 444, 786 
 
 630 
 
 594 
 
 232 
 
 359, 370 
 
 602 t, 602 w 
 
 310 o 
 
 160 
 
 843 
 
 238 
 
 188 
 
 34,627 
 
 166, 245 
 
 126, 133, 144 
 
 136 
 
 144 
 
 17, 577 
 
 17, 249 
 
 615 
 
 709 
 
 747, 774, 891 
 
 97, 98, 101 
 
 196 
 
 17 
 
 197, 202 
 
 529 
 
 871, 872 
 
 216 
 
 228 
 
 639 
 
 397, 584 
 
 367 
 
 869 
 
 633, 634 
 
 324 
 
 910, 916 
 
 419, 424, 440 
 
 380 
 
 359, 380 
 
 99 
 
 500 
 
 900 
 
 900 
 
 877 
 
 275 
 
 380, 541. 547 
 
 802. 80.-5, 805 
 
 79, 82, 83 
 
 768 
 
 800, 801, 802, 810 
 
 307, 903 a 
 
 605 
 
 465
 
 Ixiv 
 
 INDEX TO CASES CITED. 
 
 [References are to sections.] 
 
 Eldredpe v. Heard 
 
 V. Knott 
 
 V. Preble 
 
 V. Smith 
 Eldridge v. Putnam 
 Elias V. Schweyer 
 Klibank v. Montolieu 
 Elijah V. Taylor 
 Elkins V. Tresham 
 Ellenborough v. Canterbury 
 Ellerson v. Westcott 
 Ellett V. Paxson 
 El lice, Ex j)arte 
 Ellicombe v. Gompertz 
 Ellicott V. Barnes 
 
 V. Chamberlia 
 
 V. Welch 
 Elling V. Naglee 
 Elliot V. Ince 
 Ellinwood v. Holt 
 Elliott V. Armstrong 
 
 V. Boaz 
 
 V. Connell 
 
 V. Cordell 
 
 V. Deason 
 
 V. Edwards 
 
 V. Elliott 
 
 V. Hancock 
 V. Hart 
 V. Lewis 
 V. Merriman 
 
 V. Pool 
 V. Sparrell 
 V. Waring 
 
 248, 510,511 
 
 8t)fi 
 
 676, 677 
 
 195, 199 
 
 882 
 
 275, 873 
 
 629, 6;i5 
 
 679 
 
 173 
 
 891, 894 
 
 181 
 
 780 
 
 457 
 
 380 
 
 122 
 
 209 
 
 239 
 
 918 
 
 35 
 
 347 
 
 126, 137, 139, 347 
 
 174 
 
 226 
 
 626, 634 
 
 520 
 
 236, 239 
 
 54, 143, 145, 146, 147, 
 
 151, 161, 851 
 
 569, 570 
 
 149 
 
 880 
 
 597, 598, 795, 796, 798, 
 
 802, 810, 814, 807 
 
 195 
 
 263, 468, 471 
 
 632 
 V. Wood°199, 602 fi, 602 .9, 602 p, 602 r 
 Elliott's Executors, Appeal of 101 
 
 Ellis V. Allen 202 
 
 V. Amason 438 
 
 V. Atkinson 670 
 
 V. Baldwin 639 
 
 V. Barker 427, 433, 900 
 
 V. Boston, Hartford & Erie R. K. 
 
 Co. 273, 284 
 
 V. Carv 613 
 
 V. Ellis 113, 253, 901, 908 
 
 V. Essex Merrimack Bridge 
 
 V. Fisher 
 
 V. Guavas 
 
 V. Hill 
 
 V. Kenyon 
 
 V. Maxwell 
 
 V. Nimmo 
 
 V. Selby 
 
 V. Woods 
 Ellis's Trusts, In re 
 Ellison V. Airey 
 
 V. Ellison 
 
 V. Elwin 
 
 V. Moses 
 
 V. Woody 
 Ellison's Trust, In re 
 Ells V. Lynch 
 
 312, 315 
 
 243 
 
 79 
 
 680 
 
 395, 397 
 
 107, 108, 109 
 
 151, 159, 711, 712 
 
 648 
 
 671 
 
 569 
 
 96, 98, 100, 104, 107, 367 
 
 626 
 
 828 
 
 546 
 
 270, 271 
 
 385 
 
 Ellsworthy v. Hinds 
 Elniendorf v. Beirne 
 
 V. Lansing 
 
 V. Ta3'lor 
 Elmer v. Scott 
 
 640 
 
 238 
 
 418 
 
 228, 855 
 
 694, 724 
 
 Elmlie v. McAulay 
 
 225 
 
 Klinore's Trusts 
 
 451 
 
 I'jhns V. Hughes 
 
 639 
 
 l^^lmsley v. Young 
 
 257 
 
 lilsee, 'Ex parte 
 
 910 
 
 Klsej' V. Lutyens 
 
 47, 891 
 
 Elstner v. Fife 
 
 259, 500 
 
 Elthan Parish v. Warreyn 
 
 704 
 
 Elton V. Elton 
 
 375 
 
 V. Harrison 
 
 501, 802 
 
 V. Shepherd 
 
 318, 655 
 
 Elve V. Bo3'ton 
 
 453 
 
 Elwell V. Chamberlain 
 
 172 
 
 Elworthy v. Bird 
 
 672, 673 
 
 V. Wickstead 
 
 633 
 
 Elwyn V. Williams 
 
 641 
 
 Ely V. Cook 
 
 591 
 
 V. Hair 
 
 590 
 
 V. Turpin 
 
 602 
 
 Emblym v. Freeman 
 
 157 
 
 Emelie v. Emelie 
 
 455 
 
 Emerick v. Emerick 
 
 229 
 
 Emerson v. Cutler 
 
 920 
 
 V. Galloupe 
 
 83 
 
 V. Spicer 
 
 608 
 
 Emery v. Batchelder 
 
 452 
 
 Emery v. Chase 
 
 299 
 
 V. Grocock 
 
 349, 352 
 
 r. Hill 
 
 741 
 
 Emery's Trusts, Re 
 
 627 
 
 Emmet v. Clarke 
 
 286 
 
 V. Dewhirst 
 
 184 
 
 V. Emmet 
 
 471 
 
 Emmons v. Cairns 
 
 541, 547 
 
 V. Shaw 
 
 288 
 
 Emperor v. Rolfe 
 
 580 
 
 Encking v. Simmonds 
 
 602 A, 602 3 
 
 Enders v. Public Works 
 
 764 
 
 Enfield Toll Bridge t>. Hartford 757 
 
 Engel's Estate 
 
 169 
 
 England, In re 
 
 613, 618 
 
 V. Downes 
 
 213, 267, 901 
 
 V. Slade 
 
 349, 351, 355 
 
 English V. Mclntyre 
 
 72, 467, 4C8 
 
 V. Miller 
 
 72 
 
 V. Kussell 
 
 232 
 
 Ennis v. Leach 
 
 602 nrt 
 
 Enniss v. Smith 
 
 511 c 
 
 Enos V. Hunter 
 
 137 
 
 Ensley v. Balentine 126, 128, 
 
 134, 135, 137 
 
 Entwistle v. Markland 
 
 550 
 
 Episcopal Church v. Wiley 
 
 71 
 
 Erickson v. Willard 
 
 112, 248 
 
 Erisnian v. Directors of Poor 
 
 511 a 
 
 Ernest v. Croysdill 
 
 839, 840, 859 
 
 Errat v. Barlow 
 
 616, 619 
 
 Errington, Re 
 
 400, 472 
 
 V. Chapman 
 
 616. 619 
 
 V. Evans 
 
 245 
 
 Erskine v. Townsend 
 
 226 
 
 Erskine's Trusts 
 
 634 
 
 Ervin's Appeal 
 
 610. 783 
 
 Erwin v. Hall 
 
 815 c 
 
 V. Parham 
 
 187, 188 
 
 V. Seigling 
 
 918 
 
 Escheator v. Smith 
 
 55, 310 
 
 Eschrich, In re 
 
 471 
 
 Esham v. Lamar 
 
 187 
 
 Eshelman v. Lewis 
 
 127
 
 INDEX TO CASES CITED. 
 
 Eshelman v. Shuman 
 Eskridge v. McClure 
 Espoy V. Lake 
 Espin V. rembertoa 
 Essex V. Atkins 
 Estabrook r. Earle 
 Estes V. Tillinghast 
 Estwick V. Callaud 
 Etches V. Etches 
 Ettiiig V. Bank of U. States 
 Etty V. Hriilges 
 
 European Kru. Co. r. Poor 194, 207 
 
 Eustace v. Seamen f>'^ 
 
 Evangelical Ass'n's App. 730, 733, <4« 
 Evangelical Synod i'. Schoeneich 8--i» 
 
 Evans I'. Bagwell 
 
 [Eelerences are to Bections.] 
 
 G41 Ewing v. Furness 
 
 232, 239 V. Iligby 
 
 194 V. Osbaldiston 
 
 222 V. Stiannahan 
 
 653, GO" I'. Warner 
 
 68ti Exel V. Wallace 
 
 104 Exeter v. Exeter 
 590 t'. Odiorne 
 
 386, 386 n, 555 Kxton v. Scott 
 
 178, 179 Eyre, Jie 
 
 438 V. Dolphin 
 
 Battle 
 V. Benyon 
 V. Bicknell 
 V. Caiman 
 V. Cheshire 
 V. Chew 
 V. Coventry 
 V, Davies 
 V. Ellis 
 V. Enloe 
 V. Evans 
 V. Gibson 
 V. Gillespie 
 V. Goodlett 
 V. Heilier 
 V. Islehart 
 V. Jackson 
 V. John 
 V. Kingsburj' 
 V. Kneeland 
 V. Knoar 
 V, Llewellyn 
 V. London 
 V. Massey 
 V. Potter 
 V. Russell 
 V. Scott 
 V. Secrest 
 V. Stokes 
 V. Tweedy 
 Evans's Estate 
 Evarts v. Nason 
 Evelyn v. Templar 
 Everett v. Carr 
 V. Drew 
 V. Henry 
 V. Prytliieregch 
 V. Texas M. Ry. Co. 
 Everitt v. Everitt 
 Evcrson v. Pitney 
 Everston v. Mayhew 
 Everts v. Agnes 
 
 V. Everts 
 Evertson r. Tappan 
 Evroy v. Nickolas 
 Ewbank r. Paston 
 Eweu V. Bannerman 
 
 V. Smith 
 
 Ewer V. Corbett 
 
 Ewers r. White's Estate 
 
 Ewing V. Barnes 
 
 V. Bass 
 
 V. Buckner 
 
 VOL. I. — e 
 
 593 
 
 97 
 
 467, 828 
 
 171, 438 
 
 658 
 
 188 
 
 500 
 
 818 
 
 66 
 
 202 
 
 238 
 
 358, 373 
 
 127 
 
 647 
 
 232, 237 
 
 584 
 
 546, 547 
 
 769 
 
 259, 261 
 
 Fitton 
 V. Marsden 
 V. Potter 
 V. Shaftesbury 
 
 Eyrick v. Hetrick 
 Eyton V. Eyton 
 
 Ixv 
 
 891 
 
 774 
 
 231 
 
 341, 346, 858 
 
 104 
 
 359 
 
 186 
 
 299, 305, 307 
 
 103 
 
 517 
 
 196, 538 
 
 5116 
 
 160, 395, 397 
 
 187 
 
 414, 505, 003, 631, 
 
 694, 695, 724 
 
 55, 259, 555 
 
 183 
 
 179 
 
 647, 649 
 
 171, 184, 185, 192 
 
 697 
 
 615, 618, 619 
 
 243 
 
 104 
 
 580 
 
 640 
 
 885 
 
 558, 559 
 
 418, 419, 894 
 
 863, 918 
 
 107, 109, 111 
 
 697, 705, 720, 722, 733 
 
 926 
 
 195 
 
 275, 816, 818 
 
 828 
 
 104 
 
 918 
 
 828 
 
 220, 221 
 
 520 
 
 428 
 
 53 
 
 235, 239 
 
 714 
 
 655, 661 
 
 225, 809, 810, 812 
 
 8(i3 
 
 378 
 
 189 
 
 260 
 
 Fadness v. Braunborg 
 Fagg's Case 
 
 Fahnestock v. Fahnestock 
 Fairbanks v. Lamson 
 Fairchild v. Edson 
 Fairfield S. Bank v. Small 
 Fairhurst v. Lewis 
 Fairman v. Bavin 
 
 V. Green 
 Fairtitle v. Gilbert 
 Falk V. Turner 
 ^„.. Falkland v. Bertie 
 499 I Falkner v. Equitable Society 
 
 V. O'Brien 
 
 V. Wynford 
 Fall t'. Simmons 
 Fallen, In Matter of 
 Faloon i'. Flannery 
 Fambro v. Gantt 
 Fane v. Devonshire 
 
 V. Fane 
 Fanning v. Ker 
 Fansler v. Jones 
 Fant V. Dunbar 
 Farie's Appeal 
 Paris V. Dunn 
 Farley v. Blood 
 
 V. Bryant 
 
 V. Bu'cklin 
 V. Kittson 
 
 730 
 
 218 
 
 448, 451 
 
 701. 748 
 
 171, 720, 729 
 
 82 
 
 148 
 
 206 
 
 616, 618 
 
 750 
 
 204, 210 
 
 871 
 
 786 
 
 192 
 
 248, 250 
 
 471, 918 
 
 54 
 
 254 
 
 225 
 
 189 
 
 94 
 
 602 d 
 
 1.38 
 
 463 
 
 652, 668 
 
 1.37 
 
 127 
 
 184, 186 
 
 398 
 
 206 
 
 V. St. Paul, M. & M. R. R. Co. 427 
 V. Shippen 64, 71, 131, 136 
 
 Farlow v. Farlow 
 Farmer v. Compton 
 
 V. Dean 
 
 V. Farmer 
 
 V. Lesley 
 
 V. Martin 
 Farmers' Bank v. Douglass 
 
 r. King 
 
 V. Waynian 
 Farmers' Loan, &c. Co. ■ 
 Bank 
 
 r. Ilondrickson 
 
 t'. Hughes 
 
 r. Lake St. Ry. Co. 
 
 V. Maltby 
 
 253 
 517 
 780 
 192 
 
 591 
 
 511a 
 
 187, 590 
 
 127, 128 
 
 242 
 
 Commercial 
 
 759 
 759 
 275 
 242, 885 
 221
 
 Ixvi 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Farmers' Loan &c. Co. v. New York 
 
 & N. Ry. Co. 242 
 Farmer's Nat. Bank v. Moran 312, 520 
 
 Farmers and Traders' Bank v. Kimball 
 
 Milling Co. I«f5 
 Farnam v. Brooks 178, 195, 206, 210, 2;i0, 
 
 855, 803 
 
 Farneyhough v. Dickersoa 918 
 
 Farnsworth v. Child 223 
 
 Farquliarson v. Eichelberger 314 
 
 V. Seton 876 
 
 Farr v. Farr 229, 230 
 
 V. Gilreath 300 
 
 V. Sherriffe 886, 888, 903 a 
 
 Farrance v. Viley G24 
 
 Farrand v. Beshoar 79 
 
 V. Land Co. 861 
 
 Farrant v. Blanchford 8.jl 
 
 Farrar r. Barraclough 457, 467 
 
 V. Farley 205 
 
 Farrell v. Lloyd 137, 142 
 
 V. Smith 294, 928 
 
 Farrelly v. Ladd 343, 843 
 
 Farrier v. Cames 891 
 
 Farringer v. Ramsey 126, 137 
 
 Farrington v. Barr 162 
 
 V. Knightly 17, 154 
 
 V. Putnam 160, 699 
 
 Farris v. Dunn 223 
 
 Farwell v. Kloman 828 
 
 Fassit V. Phillips 592 
 
 Fast V. McPherson 212 
 
 Fatheree v. Fletcher 143 
 
 Fatjo V. Swasey 274 
 
 Faucett v. Faucett 195 
 
 Faulkner v. Daniel 347 
 
 V. Davis 249 
 
 V. Hendy 828 
 
 Fawcett v. Fawcett 145, 863 
 
 V. Gere 212 
 
 V. Lowther 327 
 
 Fawell V. Heelis 236, 239 
 
 Fawknerv. Watts 612 
 
 Fay V. Fay 75, 126, 308 
 
 V. Howe 471 
 
 V. Morrison 147 
 
 V. Petis 757 
 
 t'. Slaughter 739 
 
 V. Taft 121 
 
 Feamster v. Feamster 828 
 
 Fear v. Bartlett 242 
 
 Fearns v. Young 449, 450, 547, 549, 910 
 
 Fearon v. Desbrisay 511 n 
 
 V. Webb 23, 384 
 
 Fears v. Brooks 646, 647, 649, 655, 660 
 
 Featherstonaugh v. Fenwick 196, 453, 470, 
 
 538 
 
 Feedej-'s App. 313 
 
 Feeney v. Howard 142 
 
 Fehliiiger v. Wood 437 a 
 
 Feistal V. King's College 69 
 
 Felix V. Patrick 60, 861 
 
 Fell V. Brown 71, 72, 883 
 
 V. Lutwidge 900 
 
 Fellows V. Dow 347 
 
 V. Gwydvr 172 
 
 V. Heerm'ans 95, 318, 334 
 
 V. Mitchell 411, 416, 446, 809, 849 
 
 ». Tann 646 
 
 Fellrath v. Peoria G. S. Ass'n 848 
 
 Feltham v. Clark 438 
 
 V. Turner 511 
 
 Felton V. Deal 757 
 
 Feudall v. Nash 619 
 
 Fenner v. Tucker 602 r 
 
 Fennimore v. Fennimore 421 
 
 Fenno v. Sayre 231 
 
 Fenwick v. Chapman 571 
 
 V. Greenwell 248, 250, 260, 417, 845 
 
 Ferchen v. Arndt 828 
 
 F'erdey's Appeal 313 
 
 F^erebee v. Pritchard 122 
 
 Ferebere v. Proctor 765 
 
 Fergerson v. Fergerson 184 
 
 Fergus v. Gove 601 
 
 Ferguson v. Franklin 55 
 
 V. Hass 226 
 
 V. Livingston 862 
 
 V. Sutphen 133 
 
 V. Tadman 122 
 
 V. Williamson 172 
 
 Ferraby v. Hobson 528 
 
 Ferraria v. Vasconcellos 733 
 
 Ferraris v. Hertford 93 
 
 Ferrars v. Cherry 217, 828, 830 
 
 Ferres v. F'erres 189 
 
 Ferrier v. Trepannier 437 a 
 
 Ferrin v. Errol 828 
 
 Ferris v. Gibson 380 
 
 V. Henderson 229, 230 
 
 Ferry v. Laible 121, 511 6 
 
 Ferson v. Sanger 173 
 
 Fesmire v. Shannon 421 
 
 F^esmire's Estate 415, 421, 848 
 
 Festing c. Allen 385 
 
 Festorazzi v. St. Joseph's Cath. Church 
 
 715, 729 
 
 Fettiplace v. Gorges 655, 668 
 
 Feversham v. Ryder 704, 709 
 
 Fiddler v. Higgins 611 
 
 Fidelity Ins. Co.'s App. 903 a 
 
 Field r. Arrowsmith 195, 240, 200, 280, 
 
 602 e, 602 v 
 
 V. Brown 611 
 
 V. Donoughmore 593, 600, 927 
 
 V. Evans 20, 670 
 
 V. Field 738 
 
 V. Girard College 734 
 
 V. Lonsdale 144, 165 
 
 t'. Ma3'or of New York 68 
 
 V. Moore 34 
 
 V. Peckett 439, 479, 570 
 
 V. Schieffelin 225, 608, 610, 809, 812, 
 
 814 
 
 V. Sowle 658, 661 
 
 V. Wilbur 477, .526 
 
 V. Wilson 229, 230 
 
 Field's Mortgage 338 
 
 Fields V. Dennen 2-37 
 
 Fi field V. Van Wvck 720 
 
 Fifth National Bank v. Hyde Park 815 c 
 
 Filbv V.Miller 218 
 
 Filch V. Weber 157 
 
 Filler v. Tyler 658 
 
 Fillman v. Divers 127 
 
 Fillmer v. Gott 189 
 
 Finch I'. Finch 126, 143, 145, 146, 147, 468 
 
 Finch V. Hollinsworth 250, 258
 
 INDEX TO CASES CITED. 
 [References are to sectiona.] 
 
 Ixvii 
 
 Finch r. Raynad 918 
 
 V. Shaw 222 
 
 V. Winchelsea 108, 122 
 
 Finch's Case 13, 14, 7G, 241, 34G, 347 
 
 Finilen v. Stephens 123, U07 
 
 Findlay t;. Kiddle 35'J, 370 
 
 Findley v. I'atterson 201 
 
 Fink V. Fink 748 
 
 Finlay v. Darling 841 
 
 V. Howard 275, 282 
 
 Finley t>. Hunter 715 
 
 V. Isett 83 
 
 t'. Jones 891 
 
 Finn v. Holin 328' 
 
 Finney v. Cochran 8G3 
 
 Finnev's Kstate, In re 337 
 
 Fimiiii i". Pulhain 900 
 
 First baptist Society in Andover v. 
 
 Hazen " 312, 520 
 First Congregational Society of South- 
 
 ington V. Atwater 43, 46, 714 
 First Constitutional Presbyterian 
 
 Church V. Cong. Soc. 733 
 First Mortgage Bondholders v. Mays- 
 
 ville, &c. Kaihvay 75!) 
 
 First National liank, In re 678 
 
 V. Dwelley 815 6 
 
 V. Fries 76, 163 
 
 V. Michigan Trust Co. 511 6 
 
 V. Miller 729 
 
 V. Nat'l Broadway Bank 72, 223, 511 6 
 
 V. Owen " 918 
 
 V. Salem Capital F. M. Co. 238 
 
 V. Smith 594 
 
 First Nat. Ins. Co. v. Salisbury 873 
 
 First Parish in Sutton v. Cole 43 
 
 Fischbeck v. Gross 181, 915 
 
 Fischili r. Dnniaresley 134 
 
 Fish V. Howland 232, 237 
 
 V. Miller 851 
 
 17. Prior 305 
 
 V. Wilson 863 
 
 Fishbourne, In re 806 
 
 Fisher r. Bassett 602 ee 
 
 V. Boody 172 
 
 V. Dickenson 277 
 
 V. Fields 82, 312, 315, 320 
 
 V. Filbert 648 
 
 V. Fisher 556 
 
 V. Fobes 142 
 
 V. Johnson 238, 239 
 
 «;. Knox 438 
 
 V. Shropshire 233 
 
 V. Smart 918 
 
 V. Taylor 918 
 
 r. Webster 380 
 
 V. Wigg 920 
 
 t'. Worth 594 
 
 Fisher's Will, Tn re 284 
 
 Fisk V. Att.-Gen. 698, 706, 726 
 
 V. Keen 380 
 
 V. Pafton 127 
 
 V. Sarber 205, 209, 538 
 
 V. Stubbs 275 
 
 Fiske V. White 748 
 
 Fitch V. Aver 649 
 
 V. Fitch 188 
 
 Fitler v. Maitland 591 
 
 Fitzer v. Fitzer 673 
 
 Fitzgerald, /n re 
 
 817 
 
 V. Chapman 
 
 627 
 
 V. Faucouberge 
 
 511c 
 
 V. Field 
 
 580 
 
 V. Fitzgerald 
 
 79, 162, 901 
 
 V. Jervoise 
 
 771 
 
 V Jones 
 
 908 
 
 V. O'Flaherty 
 
 901 
 
 V. Peck 
 
 184 
 
 V. Pringie 453, 460, 461, 898, 901, 902 
 
 f. Rainsford 192, 538 
 
 V. Topping 334 
 
 V. Vestal C8 
 
 Fitzgibbon v. Blake 657, 671 
 
 V. Scanlan 196, 538 
 
 Fitzpatrick v. Fitzgerald 17, 328 
 
 I'. Fitzpatrick 602 r 
 
 Fitzroy v. Howard 533 
 
 Fitzsimmons v. Joslin 172, 179 
 
 Flack V. Holm 72 
 
 Flagg V. Ely 454 
 
 V. Mann 135, 218, 221, 226, 602 d, 843, 
 
 844 
 
 Flanapan v. Nolan 462, 900, 901 
 
 Flanders v. Clark 249, 505, 510 
 
 V. Thompson 239 
 
 Flarty v. Odium 249, 505, 510 
 
 Flavett I'. Foster 423 
 
 Fleming v. Armstrong 671 
 
 V. Buchanan 573 
 
 V. Cuthbert 803 
 
 V. Donohoe 75, 143 
 
 V. Gilmer 858 
 
 V. McHale 133 
 
 V. Page 828 
 
 V. Teran 205 
 
 r. Wilson 918 
 
 Fletcher I'. Ashbarner 150 
 
 V. Ashley 213 
 
 V. Bartlett 206 
 
 V. Fletcher 98, 103, 111, 672 
 
 V. Green 461, 847, 848, 849. 876 
 
 V. Peck 218, 222 
 
 V. Stephenson 551, 924 
 
 V. Walker 443, 463, 900 
 
 V. W 11 lard 226 
 
 Flint V. Clinton Co. 260, 262, 264, 602 e 
 
 V. Hughes 116 
 
 V. Sheldon 302 
 
 t". Steadman 66 
 
 r. Warren 157 
 
 Florentine r. Barton 610 
 
 V. Wilson 672 
 
 Flory t". Becker 640 
 
 V. Houck 122 
 
 Flournoy v. Johnson 349, 353 
 
 Flower r. Buller 658 
 
 Flowers r. Franklin 546 
 
 Floyd V. Barker 160 
 
 V. Floyd 918 
 
 Fioyer v. fcankes 383 
 
 'v. Gilliam 262 
 
 V. Sherrard 183, 187 
 
 Flud r. Kumsey 244 
 
 Fluke V. Fluke 766, 768 
 
 Flynn v. Flynn .324 
 
 Foden v. Finney 633 
 
 Fogarty i'. Sawyer 602 c, 602 d, 602 g 
 
 Fogg V. Middleton 98
 
 Ixviii 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Foley V. Burnell 373. 541 
 
 V. Hill 855 
 
 V. Parry 112 
 
 V. Wontner 284, 414, 490, 505 
 
 Foliambe v. Willoughby 615 
 
 Foliansbee v. Kilbreth 127, 135 
 
 Follett V. Badeau 82, 134 
 
 V. Follett 511 f) 
 
 V. Tyrer 324 
 
 Fonda v. Penfield 383 
 
 Fontain v. Ravenell 499, 687, 721, 724, 
 
 729, 731 
 
 Foose V. Whitmore 114 
 
 Foote V. Br3-ant 137, 142 
 
 V. Colvin 126 
 
 V. Foote 179 
 
 Foote's App. 545, 556 
 
 Forbes v. Allen 471 
 
 V. Ball 112, 248, 256 
 
 V. Forbes 704 
 
 V. Hall 223 
 
 V. Halsey 205 
 
 V. Lathrop 815 a 
 
 V. Linwood 593 
 
 V. Moffatt 347 
 
 V. Peacock 499, 501, 597, 765, 786, 
 
 790, 795, 796, 800, 801, 802, 812 
 
 V. Phillips 639 
 
 V. Ross 453, 461, 462, 408 
 
 V. Ware 471 
 
 Ford V. Battey 119 
 
 V. Belmont 765 
 
 V. Cook 858, 890 a 
 
 V. Ford 448, 706 
 
 V. Hopkins 837 
 
 V. Lewis 131 
 
 V. Rvan 794 
 
 Forde iJ.Herron 187, 602 s 
 
 Fordham v. Wallis 932 
 
 Fordvce v. Bridges 248, 251, 255, 503 
 
 i. Willis 29, 75, 76, 77, 86, 102 
 
 Forest v. Forest 100 
 
 Forman v. Marsh 610, 611 
 
 Forney v. Remey 163 
 
 Forney's Estate 520 
 
 Forrest v. Elwes 466, 905 
 
 V. Porch 66 
 
 V. Robinson 660 
 
 Forrester v. Moore 126 
 
 Forshaw v. Higginson 476, 482, 786 
 
 Forster v. Blackstone 438 
 
 V. Cockerell 438 
 
 V. Hale 79, 81, 82, 83, 86 
 
 V. Hoggart 602 c 
 
 V. Ridley 906 
 
 Forsvthe v. Clark 126, 133, 226 
 
 Fort'i;. Fort 639 
 
 Fortescue v. Barnett 98, 101, 247 a, 438 
 
 Forward v. Armstead 97 
 
 Fosbrook v. Balguy 196, 428 
 
 Foscue ti. Foscue 863 
 
 Fosdick V. Fosdick 393 
 
 V. Hempstead 699 
 
 Foss V. Crisp 55 
 
 V. Foss 665 
 
 V. Sowles 264 
 
 Foster v. Athenaeum Trustees 126, 133, 237 
 
 V. Bailey 910 
 
 V. Boston 961 
 
 Foster v. Charles 
 
 
 171 
 
 t). Coe 
 
 
 318 
 
 V. Craige 
 
 
 501 
 
 V. Crenshaw 
 
 
 562 
 
 V. Davies 
 
 
 276, 441 
 
 t'. Dawber 
 
 
 270, 271 
 
 V. Deacon 
 
 
 122 
 
 V. Dennison 
 
 
 299 
 
 V. Durant 
 
 
 142 
 
 V. Foster 
 
 
 144, 815 a 
 
 V. Glover 
 
 
 299 
 
 V. Goree 
 
 
 602 p 
 
 V. Gover 
 
 
 602 (Id 
 
 V. Hodgson 
 
 
 862 
 
 V. Kerr 
 
 
 649 
 
 V. Latham 
 
 
 585 
 
 V. Marriott 
 
 
 538 
 
 V. McMahon 
 
 
 928 
 
 V. Mix 
 
 
 438 
 
 V. Pennsylvania 
 
 Ins. Co. 
 
 645 
 
 V. Roberts 
 
 
 188 
 
 V. Saco Manuf. Co. 
 
 591 
 
 V. Willson 
 
 
 114 
 
 Foster's Will, In re 
 
 
 282, 453 
 
 Fothergill v. Fotlierg 
 
 ill 
 
 107 
 
 Fountain Spring Park Co. v. Roberts 207 
 
 Fountaine v. Pellett 526, 554, 912, 913,915 
 
 Fourdrin v. Gowdy 64 
 
 Fournier v. Ingraham 918 
 
 Fourth St. Nat. Bank v. Yardley 87 
 
 Fouvergue v. New Orleans 182 
 
 Foveaux, In re 705 
 
 Fowey's Charities 282 
 
 Fowke V. Slaughter 133, 135 
 
 Fowle V. Merrill 199 
 
 Fowler, In re 275 
 
 V. Bowery S. Bank 559 
 
 V. Colt 462 
 
 V. Fowler 6G5 
 
 V. Garlike 112, 159, 711, 712 
 
 V. Hunter 117, 251 
 
 V. Ingersoll 382 
 
 V. Jones 308 
 
 V. Revnall 453, 461, 466. 875 
 
 V. Rust 232, 237 
 
 V. True 828 
 
 V. Webster 126 
 
 V. Willoughby 571 
 
 V. Wyatt 922, 923 
 
 Fowler's Appeal 72 
 
 Fox V. Adams 592 
 
 V. Citizens' Bank & Trust Co. 225 
 
 V. Cook 863 
 
 V. Dougherty 127 
 
 V. Fox 112, 113, 119, 144, 146 
 
 V. Jones 679 
 
 V. Mackreth 180, 189, 195, 197, 201, 206 
 
 V. Phelps 583 
 
 V. Rumery 511 a 
 
 V. Storrs 312 
 
 V. Tay 863 
 
 V. Wright 188 
 
 Foxworth V. White 197 
 
 Fozier v. Andrews 900, 901 
 
 Frail V. Ellis 235, 239 
 
 Frampton v. Frampton 509 c, 672, 673 
 
 France v. Woods 443 
 
 Francis «. Brooking 636 
 
 V. Clemen 570
 
 INDEX TO CASES CITED. 
 [Eeferences are to sections.] 
 
 Ixix 
 
 Francis v. Cline 127 
 
 V. Francis 453, 4C1, U04 
 
 V. Gower ^^'^ 
 
 V. Harrison 27'J, 875 
 
 V. Ilazelrigg's Executors 2iJ7 
 
 V. lioades 137 
 
 c. Wigzell 658, f!f;2 
 
 V. Wilkinson 143, 1«'J 
 
 Franciscus v. Ueigart 2'J'J, -'510 
 
 Franco v. Holton 214 
 
 V. Franco 419, 633, 884 
 
 Frank i'. Frank 185 
 
 Frank's App. 420 
 
 1-rauklin v. Armfield 694, 737, 748 
 
 V. IJank of England 242 
 
 V. Firth 408 
 
 V.Green 602 1, 602 c/d, 615, 618, 61 'J, 
 
 015 
 
 17. Haves 275 
 
 V. Mctlroy 4ti8 
 
 r. Osgood 411,499,602 m 
 
 Franklin's Appeal 600 
 
 Franklin Bank v. Cooper 179 
 
 Franklin S. Bank v. Taylor 873 
 
 Frankly n. Ex parte 456 
 
 F'ranks v. Price 372 
 
 Frary v. Booth 660 
 
 Fraser v. Murdoch 485 
 
 I'rauenfeldt's Estate 640 
 
 Frayser v. Kd. Co. 438 
 
 Frazee v. Frazee 658 
 
 Frazer r. Bailie 633 
 
 17. Beville 541 
 
 V. Moore 862 
 
 V. Page 476 a 
 
 V. Palmer 432, 902 
 
 Frazier v. Brownlow 660 
 
 V. Center 32, 661 
 
 V. Frazier 65, 160, 251, 255 
 
 17. Smart 918 
 
 17. Vaux 918 
 
 Freake v. Cranefeldt 558, 559 
 
 Frederic v. Haas 126, 132 
 
 V. Hatwell 667 
 
 Freedman's S. Co. v. Earle 346 
 
 Freelaud v. Pearson 254, 258 
 
 Freeman v. Butters 28S 
 
 V. Cook 184, 540, 541, 843, 844, 027 
 
 17. Curtis 184 
 
 17. Fairlee 463, 821, 826, 827, 905 
 
 17. Flood 670, 671 
 
 17. Freeman 75, 77, 647 
 
 17. Harwood 1''5 
 
 17. Kelly 127, 133, 137, 138 
 
 17. Mebane 238 
 
 17. Moore 667 
 
 17. Parsley 632, 633 
 
 17. Prendergast 873 
 
 17. Tatham 85 
 
 11. Thompkins 915 
 
 Freeman's Estate 511 b, 769 
 
 Freemoult r. Dedire 122 
 
 Freeport v. Bartol 83 
 
 Freer v. Lake 82 
 
 Frekc v. Lord Carbery 395 
 
 Frelick v. Turner 618 
 
 Frelinghuvsen 17. Nugent 828 
 
 Freme 17. Woods 443, 914 
 
 French v. Barron 904 
 
 French v. Davidson 507, 508, 511 
 
 17. French 191, 299 
 
 17. Griswold College 907 
 
 17. Harrison 835 
 
 17. Hobson 419, 454, 851 
 
 17. St. George 533 
 
 Freto i>. Brown 613 
 
 Frewen v. Frewen 873 
 
 Krev V. Frey 462, 000 
 FreVer, In re 415, 416, 418, 890 
 FreVvogle t7. Hughes 304, 310 a, 311, 652 
 
 Frick Ca). t;. 'laylur 82 
 
 Frickett v. Durham 133 
 
 Friend v. Young 246 
 
 Frier v. Peacock 730 
 
 Kriesenhahii v. Bushnell 467 
 
 Frink v. McComb 202, 248 
 Frith 17. Cartland 433, 463, 835, 837, 863 
 
 Fritts' Estate 472 
 
 Fromme v. Gray 903 a 
 
 Frost, In re 382 
 
 V. Beekman 220, 221 
 
 V. Belmont 214 
 
 Frothingham t'. March 602 r 
 
 Fry V. Capper 671 
 
 V. Fry 487, 629, 771 
 
 V. Lane 184, 188 
 
 17. Tapson 404 
 
 Frv's Estate 511c 
 
 Frye v. Porter 357, 514, 517 
 
 V. Shelbourne 580 
 
 Fulbright 17. Yoder 315 
 
 Fullager i-. Clark 167 
 
 Fullam V. Rose 669 
 
 Fuller 17. Bennett 222 
 
 17. Cushman 869 
 
 17. Dame 214 
 
 17. Johnson 770 
 
 17. Knight 770, 877, 884 
 
 17. O'Neil 779 
 
 r. Redman 481 
 
 V. Wilson 172 
 
 Fuller's Will 729 
 
 Fulton V. Gilmore 922 
 
 17. Whitney 196 
 Fulton Bank i7. New York Coal Co. 222 
 
 Funk V. Eggleston 253 
 
 17. Lawson 82 
 
 Furguson t7. Smith 654 
 
 Furiam i7. Saunders 521 
 
 Furman r. Coe 624, 914 
 
 V. Fisher 82, 259 
 
 17. Rapelje 848 
 
 Furness v. Caterham Ry. 752 
 
 Furrin i'. Newcombe 160 
 
 Fursaker v. Robinson 109, 111 
 
 Fussell t'. Dowding 920 
 
 Fust, Ex parte 457 
 
 Futter 17. Jackson 826, 827 
 Fyler v. Fvler 246, 466, 847, 849, 907 
 
 V. Pole 862 
 
 G. 
 
 Gabb 17. Prendergast 
 Gabee v. Sneed 
 Gabriel i'. Sturgis 
 I Gadsden, Exparte 
 
 66 
 232 
 
 901 
 812
 
 Ixx 
 
 INDEX TO CASES CITED. 
 
 [References are to sections.] 
 
 Gadsden v. Whaley 
 Gaffee, In re 
 Gage, In re 
 Gage V. Dauchy 
 
 V. Gage 
 
 V. Rogers 
 Gaillard v I'ardon 
 Gaines v. Chew 
 
 V. Drakeford 
 
 V. Hennen 
 
 V. Poor 
 Gainus v. Cannon 
 Galbraith v. Elder 
 Gale I'. Coburn 
 
 V. Gale 
 
 V. Ilarby 
 
 V. Mensing 
 Gale's Petition 
 
 Gallagher v. Yosemite M. Co. 
 Gallagher's Appeal 
 Gallatian v. Cunningham 
 
 V. Erwin 
 Gallego V. Att.-Gen. 
 
 V. Gallego 
 Galley v. Panther 
 Galliers v. Moss 
 Gallion v. McCaslin 
 Galloway v. Finley 
 
 V. Hamilton 
 Galway v. Butler 
 Gambell v. Trippe 
 Gamber v. Gamber 
 Gamble v. Queen's County W. Co. 
 Gambril v. Gambril 
 
 V. Roberts 
 Game, In re 
 Gandy v. Gandy 
 Gann v. Chester 
 Gannon v. McGuire 
 
 V. Ruffin 
 
 V. White 
 Gantert, Re 
 Gapen v. Gapen 
 Gardenhire v. Hind3 
 Gardiner I'. Tyler 
 Gardner, In re 
 Gardner v. Adams 
 
 V. Astor 
 
 V. Barker 
 
 V. Brown 
 
 V. Downes 
 
 V. Fell 
 
 V. Gardner 
 
 V. Heyer 
 
 V. Hooper 
 
 V. Marshall 
 
 I'. Merritt 
 
 V. Ogden 
 
 V. Rowe 
 
 V. Stevens 
 
 V. Walker 
 
 V. Weeks 
 Gardner Bank v. Wheaton 
 Garesche t'. Levering Inv. Co 
 Garey v. Whittingham 
 Garfield v. Hatmaker 
 Garf oot v. Garfoot 
 
 79, 86 
 653, 670, 071 
 380 
 679 
 142 
 891 
 361 
 126, 142, 182, 183 
 137 
 183 
 672 
 76, 127 
 538 
 299 
 169 
 127, 137 
 602 a a 
 275 
 917 
 570 
 200 
 218 
 724, 748 
 627, 643 
 500 
 337 
 218 
 232 
 234 
 888 
 248 
 677 
 242 
 552, 554 
 553 
 450 
 875 
 238, 239 
 97 
 843 
 102 
 448 
 863 
 312, 648 
 918 
 114 
 69 
 347 
 118 
 262 
 276, 476 a, 922, 928 
 871 
 347, 560, 598, 647,;660, 
 666, 678, 680, 795, 
 797 
 66 
 324 
 636 
 97 
 203 
 58, 77, 82, 86 
 360 
 629 
 277 
 137 
 5116 
 903 rt 
 144 
 121 
 
 Garforth v. Bradley 
 Garland, Ex parte 
 
 V. Harrington 
 
 V. Loring 
 Garner v. Dowling 
 
 V. Garner 38, 95, 
 
 V. Ger. L. Ins. Co. 
 
 V. Moore 
 
 V. Stroude 
 Garnett v. Armstrong 
 
 V. Macon 225, 562, 
 
 Garniss v. Gardner 
 Garnistone v. Gaunt 
 Garnous v. Knight 
 Garnsey v. Gardner 
 
 V. Gothard 
 
 V. Mundy 
 Garr v. Drake 
 Garrard v. Fankell 
 
 V. Lauderdale 98, 
 
 635, 640 
 
 454 
 
 438 
 
 610 
 
 259 
 
 , 109, 240, 359, 370 
 
 104 
 
 438, 474 
 
 891 
 
 347 
 
 598, 794, 795, 800, 
 
 801 
 
 462, 463, 468, 471 
 
 581, 605 
 
 103 
 
 247 a 
 
 260 
 
 104 
 
 603 
 
 186 
 
 100, 108, 585, 593, 
 
 596, 597 
 
 V. Railroad Co. 
 
 225, 810 
 
 V. Tuck 
 
 354, 866 
 
 Garrett v. Carr 
 
 468 
 
 V. Garrett 
 
 126, 127, 836 
 
 V. Noble 
 
 771 
 
 V. Pretty 
 
 512, 513 
 
 V. Wilkinson 
 
 144 
 
 Garrick v. Taylor 
 
 1.30, 139 
 
 Garrison v. Little 
 
 384, 705 
 
 Garrow v. Davis 
 
 69 
 
 Garson v. Green 
 
 232, 236, 237, 239 
 
 Garth v. Baldwin 
 
 305, 315, 357, 358 
 
 V. Cotton 
 
 871 
 
 V. Townsend 
 
 254 
 
 Gartland v. Mayatt 
 
 294 
 
 Gartside v. Isherwood 
 
 178, 189 
 
 V. Gartside 
 
 275, 875 
 
 V. Radcliffe 
 
 183,187 
 
 Garvey v. McDavitt 
 
 386 a 
 
 V. Owens 
 
 891, 910 
 
 Garvin v. Williams 
 
 200 
 
 Garwood r. Eldridge 
 
 226 
 
 Gary v. Colgin 
 
 782 
 
 'v. ISIay 
 
 601 
 
 V. Whittingham 
 
 889 
 
 Gascoigne v. Thwing 
 
 137 
 
 Gashe v. Young 
 
 206 
 
 Gaskell v. Chambers 
 
 206, 207 
 
 V. Gaskell 
 
 165, 262 
 
 Gaskill V. Green 
 
 277 
 
 Gasque v. Small 
 
 187 
 
 Gass V. Gass 
 
 126 
 
 V. Mason 
 
 194 
 
 I'. Porter 
 
 783 
 
 V. Ross 
 
 748 
 
 V. Wilhite 384, 705 
 
 715, 724, 728, 730, 
 
 
 748 
 
 Gassett i*. Grout 
 
 627, 632 
 
 Gaston v. Frankum 
 
 657 
 
 Gaston's Trust 
 
 821 
 
 Gate V. Debrett 
 
 602 e 
 
 Gatens v. Madderly 
 
 648 
 
 Gates V. Jones 
 
 710 
 
 Gault V. Saffin 
 
 677 
 
 Gaunt I'. Taylor 
 
 886, 888 
 
 Gause v. Hale 
 
 361 
 
 Gaves v, Hickson 
 
 441
 
 INDEX TO CASES CITED. 
 [References are to aections.] 
 
 Ixxi 
 
 Gay V. Ballou 
 
 613 
 
 V. Edwards 
 
 8G.'i 
 
 Gayden i'. Gayden 
 
 4-.'G 
 
 Gaylord r. Lafayette 
 
 104 
 
 Gaylords v. Kelshaw 
 
 8M 
 
 Gazzam r. I'oyntz 
 
 590, b'.)2 
 
 Geary v. Ikarcroft 
 
 325 
 
 Gedtfes r. I'enninpton 
 
 174 
 
 Geddings v. Geddings 
 
 12'J 
 
 Gee V. Gee 
 
 133 
 
 V. Liddell 
 
 96 
 
 V. Thrailkill 
 
 142 
 
 Genet v. Beekman 
 
 386 a 
 
 I'. Hunt 
 
 511c 
 
 V. Talraadge 
 
 608, 611 
 
 Gent V. Harris 
 
 636 
 
 Gentry r. Law 
 
 172 
 
 I'.' McKeynolds 
 
 664 
 
 George, Jn re 
 
 615 
 
 V. Bank of England 
 
 86 
 
 V. Braddock 
 
 705 
 
 V. Goldsby 
 
 639 
 
 V. Howard 
 
 151 
 
 V. Lansley 
 
 511c 
 
 Georges v. Pye 
 
 836 
 
 Gerard i'. Buckley 
 
 520 
 
 Gerard Ins. Co. i'. Chambers 
 
 305 
 
 Gerber v. Bauerline 
 
 613 
 
 German v. Gabbald 
 
 75 
 
 German Am. Sem. v. Keifer 
 
 8G5 
 
 German, <S:c. Assoc. 
 
 730 
 
 German, &c. Congr. r. Repler 
 
 732 
 
 German Nat. Bank v. Burns 
 
 44 
 
 Geroe v. Winter 
 
 501 
 
 Gerrard v. Gerrard 
 
 578 
 
 Gerrish v. New Bedford Inst, for Sav- 
 ings 86, 99 
 Gerrv i'. Stimson 78, 133, 162 
 Gest"v. Flock 499 
 Gretman v. Beardsley 891 
 V. Getman 133 
 Gevers r. Wright 367 
 Geyer v. Branch Bank 649, 651 
 Gheen v. Osborn 556 
 Ghiselin v. Ferguson 232, 238, 239 
 Ghost V. Waller 402, 444, 463, 806 
 Gianella v. Momsen 828 
 Gibboney i'. Kent 855 
 Gibbons i-. Baddall 236, 239 
 V. Caunt 185 
 V. Mahon 545 
 V. Maltyard 693, 700, 701 
 V. Taylor 445, 847 
 Gibbs V. Bunch 678 
 V. Cunningham 602 », 780, 782 
 V. Guignard 262 
 V. Harding 672 
 V. Herring 421 
 V. Johnson 347 
 V. Marsh 38, 248, 253, 284, 499, 602 m 
 V. Kumsey 158, 159, 160, 507, 711 
 V. Smith 276 
 Gibson v. Armstrong 151 
 V. Barbour 195 
 V. Bott 551, 915 
 V. Burgess 72 
 V. Crehore 918 
 V. Foote 79, 147 
 V. Gossom 202 
 
 Gibson v. Green 225 
 
 V. Jeves 187, 195, 202 
 V. Joiies 602 (, 602 x, 602 aa, 602 et, 
 
 782 
 
 V. McCall 720, 748 
 
 V. McCormick 562 
 
 r. Montford 308, 312, 315, 317 
 
 V. liussell 189, 204, 210 
 
 V. Scudmore 605 
 
 V. Winter 328 
 
 Gibson's Case 240, 277, 780, 918 
 
 Giddings v. Giddings 196, 638 
 
 r. Palmer 82 
 
 Gidney v. Moore 171 
 
 GifTen v. Tavlor 162, 166 
 
 Gifford V. Bennett 828 
 
 V. Hort 856 
 
 V. Man ley 260 
 
 Gift V. Anderson 602 dd 
 
 Gilbert v. Bennett 117 
 
 V. Chapin 113, 251 
 
 V. Colt 72 
 
 V. Coolev 60266 
 
 V. Gilbert 142, 184 
 
 V. Kolb 453 
 
 V. Lewis 648, 649 
 
 r. Overton 101, 102, 105 
 
 r. Sleeper 828, 863 
 
 t'. Stockman 212 
 
 V. SutlifE 918 
 
 Gilbert's App. 927 
 
 Gilbertson v. Gilbertson 908 
 
 Gilchrist, Jix parte 646 
 
 r. Brown 133, 147 
 
 V. Cator 634 
 
 V. Stevenson 100, 104, 879, 921 
 
 Giles V. Anslow 114, 166 
 
 Gill, In re 917 
 
 V. Att.-Gen. 417, 422 
 
 V. Carmine 437 a 
 
 V. Logan 312 
 
 r. Lyon 602 ee 
 
 Gillam i-. Taylor 699 
 
 Gillbrand r. "Alexander 924 
 
 V. Goold 582, 772 
 
 Gillespie r. Burleson 648, 649 
 
 V. Moore 186 
 
 V. Smith 248, 591, 774, 779 
 
 V. Somerville 324 
 
 Gillett V. Hickling 602 
 
 I'. Peppercorne 206 
 
 V. Stanley 33 
 
 V. Wrav 514 
 
 Gillette v. Wilev 855 
 
 Gilliland v. Gilfiland 147 
 
 Gilman v. Hamilton 694, 724. 728, 733, 748 
 
 Gilman C. ic S. K. R. Co. f. Kelly 207 
 
 Gilman v. Brown 232, 234, 235,' 236, 237 
 
 f. Healev 129 
 
 V. McArdle 86 
 
 Gilman Linseed Oil Co. r. Norton 206 
 
 Gilmer v. Billings^ 863 
 
 Gilmore i". Ham 863 
 
 V. Johnson 172 
 
 V. Tuttle 918 
 
 Gil Patrick i-. Glidden 171, 245 
 
 Gilruth V. Decell 846 
 
 Gindrat v. Montgomery Gas Light 
 
 Co. 611 c
 
 Ixxii 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Girard Ins. Co. v. Chambers 555 
 
 Girard Life Ins. Co. r. Chambers 380 a 
 
 Girard Will Case C97 
 
 Girard, &c. v. Philadelphia 742, 748 
 
 Gisborn v. Charter Oak L. Ins. Co. 79, 
 
 206, 863, 910, lil5 
 
 Gist V. Frazier 187, 192 
 
 Gifting V. Steel 571 
 
 Gizelnian v. Starr 494 
 
 Gladding v. Yapp 150 
 
 Gladdon v. Stoneman 816, 818 
 
 Gladsden v. Desportes 358 
 
 Gladstone i'. Hadwen 58 
 
 Glaister v. Hewer 144, 626, 628, 639 
 
 Glanys, Ex parte 58 
 
 Glaser v. Priest 242 
 
 Glass V. Gilbert 863 
 
 V. Hulbert 167 
 
 V. Oxenham 877 
 
 V. Ramsey 894 
 
 V. Warwick 662 
 
 Glasscock v. Glasscock 238 
 
 V. Minor 175 
 
 Glaze V. Drayton 231 
 
 Gleaves v. Paine 633 
 
 Glegg V. Edmondson 869 
 
 Glen V. Fisher 575, 576, 627 
 
 V. McKim 415, 419, 420 
 
 Glengall i'. Barnard 547 
 
 Glenn v. Hill 869 
 
 V. Randall 126 
 
 Glenorchv v. Bosville 357, 359, 369 
 
 Gliddon v. Taylor 678 
 
 Glidewell v. Shaugh 126 
 
 Glissen v. Ogden 201 
 
 Gloucester v. Wood 112, 157 
 
 Glover v. Alcott 678 
 
 V. Condell 378 
 
 V. Hare 648 
 
 V. Monckton 315 
 
 V. Stamps 890 a 
 
 Glover, Appellant 60 
 
 Glyn V. Locke 597, 794 
 
 Goad V. Montgomery 764 
 
 Gochenauer o. Froelick 511 
 
 Goddard v. Carlisle 202 
 
 V. Hapgood 592 
 
 V. Pomeroy 748 
 
 V. Snow 213 
 
 Godden v. Crowhurst 386 b, 555 
 
 Godfrey v. Dixon 64 
 
 V. Faulkner 452 
 
 V. Megahan 658 
 
 V. Walker 733 
 
 Coding, Ex parte 780 
 
 Godolphin V. Godolphin 48, 248, 489 
 
 Godsall V. Webb 102, 105 
 
 Godschalk v. Fulmer 79 
 
 Godwin t'. Younge 262 
 
 Goeh ring's App. 708 
 
 Goelz V. Goelz 147 
 
 Goepp's App. 128 
 
 Goforth V. Goforth 124 
 
 Going V. Emery 499, 694, 701, 720, 724, 
 
 748, 766 
 
 Gold V. Death 222 
 
 Golder v. Dressier 284, 287, 499 
 
 Golding V. Yapp 94 
 
 Goldsmid v. Goldsmid 519 
 
 Goldsmid v. Stonehewer 875 
 
 Goldsmith v. Goldsmith 82, 162, 245 
 
 V. Osborne 602 o, 602 cc 
 
 V. Swift 545 
 
 Goldstein v. Goldstein 828 
 
 Goleborn v. Alcock 218 
 
 Golson V. Dunlap 195 
 
 Gomez v. Gomez 529, 902 
 
 V. Tradesman's Bank 82, 126, 133, 322 
 
 Gomley v. Wood 432, 9(14 
 
 GoocliV. Vaughan 770 
 
 Goochenaur's Estate 628, 639 
 
 Good V. Cheesman 593 
 
 V. Fichthorn 114 
 
 V. Harris 648, 651 
 
 V. McPherson 744 
 
 Goodale v. Mooney 712 
 
 Goode V. Comfort 70'J 
 
 V. Riley 184 
 
 Goodell V. Freed 226 
 
 Goodenough, In re 348 
 
 V. Goodenough 871 
 
 V. Tremanondo 451 
 
 Goodere v. Lloyd 157 
 
 Goodhill V. Brigham 511 b 
 
 Goodhue v. Barnwell 245, 863 
 
 V. Clark 476 a, 928 
 
 Goodier v. Edmunds 448, 506 
 
 V. Johnson 506 
 
 Goodinge v. Goodinge 256 
 
 Goodman v. Goodright 379 
 
 V. Sayers 185 
 
 Goodrich v. Downes 591, 592 
 
 V. Milwaukee 304 
 
 V. Pendleton 863 
 
 V. Proctor 593,595,602.9 
 
 Goodright v. Hodges 126, 137, 139, 143 
 
 V. Swvmmer 354 
 
 V. Wells 13, 300, 302, 347 
 
 Goods of Ladv Truro 93 
 
 Goodson V. Ellison 269, 349, 351, 354, 
 
 476 a, 883, 900, 901, 921, 922, 928 
 
 Goodtitle %t. Cummings 218 
 
 V. Funucan 530 
 
 V. Jones 17, 328, 349, 350, 355, 520 
 
 V. Knott 308 
 
 V. Woods 379 
 
 Goodwin v. Gosnell 846 
 
 V. Massachusetts Loan & Trust 
 
 Co. 790 
 
 V. Mix 786 
 
 V. Moore 633 
 
 V. Rice 122 
 
 Goodyear v. Rumbeaugh 676, 677 
 
 Gordillo v. Weguelin 752 
 
 Gordon V. Adolphus 516 
 
 V. Frail 910 
 
 V. Gordon 107, 178, 185 
 
 V. Green 86 
 
 V. Preston 754 
 
 V. West 918 
 
 Gore V. Bowser 260 
 
 V. Gibson 191 
 
 j;. Gore 379 
 
 Gorge V. Chansey 482 
 
 Gorge's Case 144, 146 
 
 Gorham v. Daniels 299 
 
 Goring v. Bickerstaff 379 
 
 V. Nash 107, 108, 111, 367
 
 OBEX TO CASES CITED. 
 [References are to sections.] 
 
 Ixxiii 
 
 Gorrell v. Alspaugh 112, 109 
 
 Gorsucli V. Briscoe 284 
 
 Gort I'. Att.-Gen. 7(M 
 Gosling V. Carter 501, 795, 801, 802, 803, 
 
 805, 808 
 
 V. Gosling 389 
 
 Goss t'. Caliiil 678 
 
 V. Singleton 259, 273, 284, 602 m, 858 
 
 r. Tracy 182 
 
 Gossniour v. Pigge 184 
 
 Gosson t'. Ladd 312, 520 
 
 Gott V. Cook 391, 508, 020 
 
 Gough V. Andrews 579 
 
 V. Boult 256, 803 
 
 V. Butte 119 
 
 V. Crane 110 
 
 V Offlev 822 
 
 Gould v. Choppell 441, 770 
 
 V. Emerson 84''J 
 
 V. Gould 182, 228 
 
 V. Harris 918 
 
 V. Haves 918 
 
 V. Ilifl 048 
 
 V. Lamb 312, 320, 598 
 
 V. Mather 499 
 
 V. Okeden 192 
 
 V. Tavlor Orphan Asylum 448 
 
 Goulden r. Buckelew 602 j/" 
 
 GouMer v. Camra 048 
 
 Gouldsworth v. Knight 412, 413 
 
 Gouverneur i". Elmendorf 220 
 
 V. Titus 891 
 
 Gove V. Brazier 562 
 
 IK Knight 604 
 
 V. Learo}-d 102 
 
 Governesses'" Institute v. Rusbridger 824, 
 
 903 a 
 
 Governor r. Gridley 43 
 
 Governor, &c. v. Campbell 593 
 
 Govin i'. l)e Miranda 79, 703 
 
 Gowdy V. Gordon 142 
 
 Gower v. Eyre 447, 552 
 
 V. Grosvenor 359, 304, 373 
 
 I'. Mainwaring 19,20,255,507,510 
 
 V. Mead 564 
 
 V. Sternes 226 
 
 Gowing r. Rich 149 
 
 Gowland v. De Faria 188, 807 
 
 Grabowski's Settlement 550 a 
 
 Grace, Ex parte 190 
 
 V. Phillips 508 
 
 V. Webb 555 
 
 Gracey v. Davis 594 
 
 Graff V. Bonnett 380 a, 555 
 
 V. Castlemaa 225 
 
 V. De Turk 254 
 
 V. Rohrer 143, 144, 102 
 
 Graham r. Austin 419 
 
 V. Hirkenhead Railway 870 
 
 V. Davidson 418, 419, 803 
 
 V. Donaldson 141 
 
 V. Dvster 243 
 
 V. Fitch 654 
 
 V. Fitts 779, 785 
 
 V. Graham 122, 307 
 
 V. King 602 /, 602 bb, 002/ 
 
 V. Lambert 82, 98 
 
 V. Lee 388 
 
 V. Little 92, 194, 785 
 
 Graham i'. Londonderry 
 
 532 
 
 V. Long 
 
 49 
 
 f. Maxwell 
 
 72 
 
 V. Pancoast 
 
 194 
 
 V. Selbie 
 
 142 
 
 V. Stewart 
 
 359 
 
 V. Torrance 
 
 803 
 
 Gram v. Prussia 
 
 737 
 
 Cranberry v. Cranberry 
 
 272, 918 
 
 (Jrandom's Estate 
 
 699 
 
 (irand Prairie Seminar}' v. Morgan 727 
 
 Grange v. Tiving 52 
 
 Granger, Ex parte 228 
 
 V. Bassett 545, 550 
 
 Grangier v. Arden 98 
 
 Grant, In re 37 
 
 I'. Bradstreet 171 
 
 V. Campbell 905 
 
 V. Dver 518 
 
 V. Grant 72, 647 
 
 V. Hook 598, 795, 798 
 
 V. Lunam 256, 507 
 
 V. Maclaren 275 
 
 V. Mills 217, 236, 239, 828 
 
 V. Odiorne 803 
 
 V. (iuick 72 
 
 Grantham v. Grantham 145 
 
 I'. Hawley 07 
 
 Granville v. McNeale 294, 499, 502 
 
 Grapengether v. Fejervary 232, 239 
 
 Gratwick's Trust, In re 254, 008 
 
 Gratz V. Cohen 190 
 
 Gravenor r. Ilallam 706 
 
 Graver's Appeal 891, 894 
 
 Graves v. Allen 65 
 
 V. Corbin 166 
 
 V. Dolphin 386 
 
 V. Dugan 133 
 
 V. Graves 116, 137, 162 
 
 V. McCall 232, 239 
 
 V. Safford 97 
 
 V. Spier 211 
 
 V. Strahan 266, 453 
 
 V. Ward 135 
 
 V. Waterman 195 
 
 V. White 171 
 
 Graves's Appeal 463, 468, 471 
 
 Grav, Ex parte 332 
 
 'v. Bell 52 
 
 I'. Bridgeforth 380 
 
 V. Chaplin 885 
 
 V. Corbit 126, 321 
 
 V. Crockett 656 
 
 V. Dougherty 892 
 
 V. Farmers' "Exchange Bank 106 
 
 V. Fox 453, 459 
 
 V. Gray 96, 112, 255, 504 
 
 V. Ilaig 440, 821 
 
 V. Henderson 499, 501 
 
 V. Hill 593 
 
 V. Howard 602 p, 602 y, 602 r, 
 
 602 y 
 
 V. Jordan 133 
 
 V. Lvnch 343,459,914 
 
 V. Mansfield 204, 206 
 
 V. Mathias 214 
 
 r. Jlerriam 122 
 
 V. Portland Bank 545 
 
 V. Shaw 774
 
 Ixxiv 
 
 INDEX TO CASES CITED. 
 [ReferenceB are to sections.] 
 
 Gray v. Thompson 
 
 
 4fi8 
 
 V. Ulrich 
 
 
 831 
 
 I'. Viers 
 
 
 780 
 
 v. Woods 
 
 
 180 
 
 Gray's Estate 
 
 628, 
 
 639 
 
 Grayburn v. Clarkson 
 
 
 439 
 
 Graydon v. Graydon 
 
 
 518 
 
 v. Hicks 
 
 513, 
 
 518 
 
 Greason v. Keteltas 
 
 528, 
 
 530 
 
 Great Eastern Ry. Co. v. Turner 65 
 
 Great Falls v. Worster 72 
 Great Luxembourg R. Co. v. Maguay 207, 
 
 430 
 Great Northern Ry. Co., Ex parte 455 
 
 Greatly v. Noble 658, 835 
 
 Greaves, Ex parte 267 
 
 V. Atkinson 147 
 
 V. Simpson 358 
 
 Greedy v. Lavender 629, 633, 903 n 
 
 Green, Ex parte 332, 616, 618 
 
 Green, In re 581 
 
 V. Allen 713, 721, 731, 748 
 
 V. Beatty 330 
 
 V. Belcher 581 
 
 1?. Blackwell 550, 700 
 
 i\ Borland 286 
 
 V. Carlil 667 
 
 V. Gates 76 
 
 i;. Claiborne 768 
 
 V. Cook 134 
 
 V. Crockett 238 
 
 V. Demoss 238, 239 
 
 V. Dennis 42, 748 
 
 V. Dietrich 133, 137 
 
 V. Drummond 134 
 
 V. Ekins 362, 616, 622 
 
 V. Folgham 67 
 
 V. Green 322, 553, 672, 784 
 
 V. Howard 255, 257, 699 
 
 V. Lowe 560 
 
 V. Marsden 112, 113 
 
 V. McBeth 511 
 
 V. Morris 186 
 
 V. Morse 600 
 
 V. Mumford 331 
 
 V. Otte 636 
 
 V. Pigot 480 
 
 V. Pledger 827 
 
 V. Putnev 913 
 
 V. Rutherforth 42, 743 
 
 V. Scranage 680 
 
 V. Smith 38, 238 
 
 V. Spicer 386, 555 
 
 V. Stephens 372 
 
 V. Thompson 187, 189 
 
 V. Trieber 592 
 
 V. Winter 206, 428, 526, 910, 
 
 916 
 
 Green's Estate 918 
 
 Greene v. Greene 477, 549, 729 
 
 V. Smith 545 
 
 r. Sprague Manf'g Co. 591 
 
 Greenfield v. Vason 815 n 
 Greenfield's Estate 77, 98, 194, 202, 210 
 
 Greenhillv. Willis 438 
 
 Greenhouse, Ex parte 275, 733 
 
 Greening v. Fox 918 
 
 Greenland v. Waddell 920 
 
 Greenlaw v. Kent 129 
 
 Greenlcaf v. Allen 891 
 
 V. Queen 602 i, 602 m, 602 p, 602 dd, 
 
 780, 782 
 
 Greenongh v. Welles 248, 500 
 
 Greensboro Nat. Bank v. Gilmer 133 
 
 Greensiade v. Dare 35 
 
 Greenwell v. Greenwell 613, 616, 619 
 
 Greenwood v. Coleman 312, 320 
 
 V. Roberts 385 
 
 V. Wakeford 268. 276, 280, 282, 460 
 
 509,848, 884, 901, 924 
 
 Greer v. Baughman 137 
 
 V. McBeth 783 
 
 V. Stoller 21 
 
 Greetham v. Colton 789, 802, 803 
 
 Greeville v. Browne 570 
 
 Gregg V. Coates 121, 477, 540, 552 
 
 V. Currier 414 
 
 V. Gabbert 277, 913 
 
 Gregory v. Gregory 228, 229, 416, 418, 
 
 421 
 
 V. Henderson 298, 306, 307 
 
 V. Lockyer 663 
 
 V. Marks 639 
 
 V. Merchants' National Bank 82 
 
 Greislev v. Chesterfield 550 
 
 Grenfeil v. Dean 69 
 
 V. Girdlestone 86G 
 
 Grenville Academies, Ex parte 42, 282 
 
 Greshani r. Ware 347 
 
 Gresley v. Mousley 202, 869 
 
 Greswold c. Marsham 347 
 
 Grev, Ee 671 
 
 'v. Grey 54, 126, 143, 145, 146, 147, 151, 
 
 161 
 
 Gridley v. Andrews 569, 570 
 
 Grier v. Grier 361 
 
 Grier's Appeal 607 
 
 Grierson v. Eyre 871 
 
 Grieves v. Case 701 
 
 Grievson v. Kirsopp 248, 249, 250, 258 
 
 Grilfin, Ex parte 404, 411, 417, 441 
 
 Griffin, Be 87 
 
 V. Barnev 591, 918 
 
 r. Blanchard 237 
 
 V. Camack 232, 238 
 
 V. De Veuelle 189, 193 
 
 V. Doe 602/ 
 
 V. Fleming 554 
 
 V. Graham 384, 700, 724, 731, 748 
 
 V. Griffin 196, 511 a, 538 
 
 r. Macaulev 416, 420, 526 
 
 V. Marine Co. 602^?, 602 v, 782 
 
 V. Nanson 181 
 
 Griffith V. Buckle 361 
 
 V. Chew 244 
 
 V. Evans 112, 251 
 
 V. Griffith 51, 218, 222, 223, 240, 277, 
 
 648 
 
 V. Hughes 849 
 
 V. Morrison 550 
 
 V. Found 875 
 
 V. Pownall 385 
 
 V. Robins 189, 190, 210 
 
 V. Spratlev 183, 187, 188, 192 
 
 Griffith's Estate 910 
 
 Griffith Flood's Case 739 
 
 Griffiths V. Cape 748 
 
 V. Porter 402, 418, 849, 931
 
 INDEX TO CASES CITED. 
 
 Ixxv 
 
 Griffiths V. Praen 
 
 V. Kicketts 
 
 r. Vanlicythuysen 
 
 V. Vere 
 Grigby V. Cox 
 
 V. Hair 
 Griggs V. Staples 
 
 V. V'eglite 
 Griinball v. Cruse 
 Grimes v. Harmon 694, 713, 
 Grimke v. Grimke 
 Grimshaw v. Walker 
 Grimsby v. Iludtiell 
 Grimstone, Ex parte 
 Grindey, In re 
 Grinell r. Adams 
 Grinuell v. Baker 
 Grisby v. Mousley 
 Grissom r. Hill 
 Griswold v. liigelow 
 
 r. Chandler 
 
 r. Griswold 
 
 V. Pennimaa 
 
 ». Perry 
 
 V. Sackett 
 Groesbeck v. Seeley 
 Grolick v. Ward 
 Groom v. Booth 
 Grooves v. Rush 
 Groschen v. Page 
 Gross V. Reddig 
 Grosvenor v. Day 
 
 V. Sherratt 
 Groton v. Ruggles 
 Grouch t'. Hazlehurt L. Co. 
 Grout V. Van Schoonhover 
 Grover v. Wakeman 
 Groverman v. Diffenderffer 
 Groves v. Clark 
 
 V. Groves 126, 131, 
 
 V. Perkins 
 
 V. Price 
 
 V. Wright 
 Grosvenor i". Cartright 
 Growing t'. Behn 
 Gruhn r. Richardson 
 Grumbles v. Grumbles 
 Grundy v. Drye 
 Grute I". Locrofl 
 Gubbins v. Creed 
 Gude V. Worthington 
 Guerrant r. Fowler 
 Guerreiro v. Peile 
 Guest I'. P'arley 
 Guibert's Trust 
 Guiddy's Case 
 Guild t'. Guild 
 Guiltbil V. Arthur 
 Guill r. Northern 
 Guilford v. Minneapolis, &c., 
 
 Guillam r. Holland 
 Guion r. Doherty 
 
 t7. Melvin 
 
 r. Pickett 
 Gulick V. Griswold 
 
 V. Gulick 
 Gullia V. Gollin 
 
 [Beferences are to sectioos.] 
 
 272 
 
 5'J3 
 
 884 
 
 3'J5 
 654, 067 
 
 238 
 
 213 
 
 4G5 
 
 476 a, 918 
 
 728, 729, 7.10 
 
 248 
 
 592 
 
 869 
 605, Cll 
 
 848 
 
 590 
 
 405 
 
 229 
 
 737, 748 
 
 511c 
 
 463, 4G8 
 
 8-28 
 
 639 
 784, 785 
 
 277 
 126, 136, 142 
 
 214 
 793, 884 
 
 592 
 678 
 602 66 
 194 
 2G2 
 
 181, 206 
 305 
 590 
 
 627, G45 
 
 145 
 
 137, 140, 141 
 
 185, 645 
 438 
 547 
 404 
 239 
 
 147, 238, 245 
 
 864 
 
 277 
 
 637 
 
 427 
 
 249 
 
 71 
 
 243 
 
 299 
 
 207 
 
 694 
 
 71, 627, 631 
 
 260, 730 
 
 794 
 
 Ry. Co. 
 
 225 
 584 
 680 
 282 
 
 248, 290, 473 
 2.V2 
 104 
 630 
 
 Gullwer r. liay 
 
 324 
 
 V. Wicket 
 
 379 
 
 Gullv f. Cregoe 
 
 112, 117 
 
 V. Hall 
 
 646 
 
 Gumbert's App. 
 
 159 
 
 Gunn r. Barrow 
 
 330 
 
 r. Brown 
 
 920 
 
 Gunnell r. Cockerill 
 
 828 
 
 V. Whitear 
 
 433 
 
 Gunnison r. Erie Dime S. Co. 
 
 127 
 
 Gunter V. Gunter 
 
 348 
 
 V. Jones 
 
 602i>, 602 V 
 
 V. Thomas 
 
 184 
 
 Guntert r. Guntert 
 
 79 
 
 Guphiil V. Isbell 
 
 330 
 
 Gurney, In re 
 
 861 
 
 Gutch V. Fosdick 
 
 860 
 
 Guth V. Guth 
 
 672, 073 
 
 Guthrie v. Gardner 126, 
 
 143, 144, 149 
 
 Gutwillig, In re 
 
 593 
 
 Gutzwillcr V. Lackman 
 
 596 
 
 Guy V. Dormer 
 
 511c 
 
 V. Hancock 
 
 602 ee 
 
 V. Mcllree 
 
 589 
 
 Guj'er V. Maynard 
 
 308. 705 
 
 Guyton v. Shane 
 
 411, 900 
 
 Gwillianis r. Kowell 
 
 121, 414 
 
 Gwinii V. Williams 
 
 2<J0 
 
 Gwynn v. Gwynu 
 
 100 
 
 f. Heaton 
 
 187, 188 
 
 Gvett V. Williams 
 
 570 
 
 H. 
 
 Haaven ». Hoass 142 
 
 Haberdashers' Co. v. Att.-Gen. 900 
 
 Habergham v. Vincent 13, 93, 151, 347, 
 
 5116 
 
 Plabershon v. Vardon 701, 710 
 
 Hackett V. Hackc'tt 511 6 
 
 Hacknian v. MaGuire 437 a 
 
 Hacknev v. Brooman 86, 99 
 
 I'. Butts 206 
 
 Haddelsey r. Adams 371 
 
 Hadden v. (.'horn 748 
 
 Haddock r. I'erham 5.'?9 
 
 Hadlev, In re 272, 291 
 
 r.'Hadiey 411,499,920 
 
 V. Hopkins Academy 700, 743, 744, 74S 
 
 r. Latimer " 189 
 
 I'. Pickett 237 
 
 t'. Stuart 1-23 
 
 Hadow r. Hadow 112, 117, 118, 612. 620 
 
 Hafley v. Birchetts 238 
 
 Hafner v. Irwin 590, 592 
 
 Hagan v. Piatt 545 
 
 I'. Powers 124 
 
 Hagell V. Currie 827 
 
 Hatrler r. McCombs 918 
 
 Hahn r. Hutchinson 225 
 
 r. Pindell 782 
 
 Haigh r. Kay 85, 162, 165, 226 
 
 V. Pearson Uto 
 
 Haigood r. Wells 618 
 
 Hain v. Robinson 75 
 
 Hain's Estate 200 
 
 Haines r. Ellis 645 
 
 V. Hay 910
 
 Ixxvi 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Haines v. O'Connor 
 
 
 141 
 
 Hake V. Fink 
 
 
 639 
 
 Halcott V. Morkaiit 
 
 
 137 
 
 Haldenby »• Spofford 
 
 
 768, 877 
 
 Hale V. Burrowdale 
 
 
 A'A 
 
 V. Ilollon 
 
 
 188 
 
 r. Home 
 
 
 152 
 
 V. Lamb 
 
 
 107, 110, 111 
 
 V. Layton 
 
 
 75 
 
 V. Penn 
 
 
 390 
 
 V. Sheldrake 
 
 
 457 
 
 V. Stone 
 
 
 647 
 
 Haley v. Bannister 
 
 
 613, 619 
 
 V. Bennett 
 
 
 232 
 
 Haleyburton r. Kershaw 
 
 
 562 
 
 Halford v. Stains 
 
 
 150, 397, 584 
 
 Hall, In re 
 
 
 840 
 
 V. Bliss 
 
 
 199 
 
 V. Bumstead 
 
 
 559 
 
 V. Carter 416, 421, 
 
 578 
 
 580, 581, 584 
 
 V. Congdon 
 
 
 126 
 
 V. Coventry 
 
 
 872 
 
 V. Culver 
 
 
 490 
 
 V. Gushing 
 
 262, 
 
 263, 272, 574 
 
 V. Denisou 
 
 
 591, 602 
 
 V. Dewes 
 
 
 344, 414. 492 
 
 V. Doran 
 
 
 141, 148 
 
 i;. Franck 
 
 
 412 
 
 V. Gambrill 
 
 
 248 
 
 V. Hall 84, 
 
 104 
 
 147, 371, 636 
 
 V. Hallett 
 
 
 202, 894 
 
 V. Harris 
 
 602 (/t/, 8i3, 877 
 
 V. Hill 
 
 
 632 
 
 V. Hugonin 
 
 
 633 
 
 V. Irwin 
 
 
 500 
 
 V. Jones 
 
 
 232, 414 
 
 V. Kappenberger 
 
 
 145 
 
 V. Laver 
 
 
 894, 907 
 
 V. Livingston 
 
 
 226 
 
 V. Lock 
 
 
 884 
 
 V. Maccubbin 
 
 
 238 
 
 V. May 
 
 294, 
 
 340, 495, 505 
 
 V. McLain 
 
 
 639 
 
 V. Otis 
 
 
 828 
 
 V. Palmer 
 
 
 103 
 
 V. Read 
 
 
 184 
 
 V. Sayre 
 
 
 649 
 
 V. Sprigg 
 
 
 126 
 
 V. Sullivan R. R. Co. 756 
 
 757, 758, 761 
 
 V. Timmons 
 
 
 170, 849 
 
 V. Towne 
 
 
 602^3, 602 I' 
 
 V. Vanness 
 
 
 129 
 
 V. Waterhouse 
 
 
 650 
 
 V. Williams, et al. 
 
 
 380 i 
 
 V. Wilson 
 
 
 918 
 
 V. Young 
 
 
 126, 132. 039 
 
 Hallack v. Smith 
 
 
 236, 238, 239 
 
 Hallam r. Tillinghast 
 
 
 122 
 
 FTallenback v. Rogers 
 
 
 145 
 
 Hallett V. Collins 
 
 
 228, 230 
 
 V. Hallett 
 
 
 .570 
 
 V. Parker 
 
 
 127 
 
 I". Thompson 
 
 386 a, 555, 682 
 
 Hallett & Co., In re 
 
 
 828 
 
 Halliburton v. Leslie 
 
 
 ■"2 
 
 Halliday t\ Hudson 
 
 
 151, 152 
 
 V. Overton 
 
 
 357 
 
 V. Summerville 
 
 
 .^71 
 
 Hallows V. Lloyd 
 
 
 284 
 
 Halmon's Appeal 
 
 Halsell V. Wise County Coal Co. 
 
 Halsey v. Cheney 
 
 V. Halsey 
 
 V. Tate 
 
 V. Whitney 
 Halstead v. Bank of Kentucky 
 Haly I!. Bannister 
 Ham V. Ham 
 Hambel v. Hanibel 
 Hamberlin j;. Terry 
 Hambrooke v. Simmons 
 Hamer v. Sidway 
 
 V. Tilsley 
 Hamersley v. De Biel 
 
 V. Lambert 
 
 V. Smith 
 Hamerton v. Whittou 
 Hamet i'. Dundass 
 Hamilton, In re. 
 
 V. Bishop 
 
 r. Buchanan 
 
 V. Buckminster 
 
 V. Crosby 
 
 V. Dooly 
 
 V. Downer 
 
 V. Fowlkes 
 
 V. F'rye 
 
 17. Grant 
 
 V. Hall 
 
 V. Hamilton 
 
 V. Hector 
 
 V. Houghton 
 
 V. Lubukee 
 
 V. Mills 
 
 V. Mound City M. L. L. Co. 
 
 i". Royce 
 
 I'. Tighe 
 
 V. Watson 
 
 V. Wright 
 Hamlen v. Bennett 
 Hamley v. Gilbert 
 Hamlin r. Hamlin 
 Hammatt v. Emerson 
 Hammerston's Case 
 Hammett v. Stricklin 
 Hammond v. Granger 
 
 V. Hammond 
 
 V. Hicks 
 
 17. Hopkins 
 
 V. Messenger 
 
 V. Neame 
 
 V. Walker 
 Hamnett's Appeal 
 Hampden v. Hampden 
 
 r. Miller 
 
 V. Rice 
 Hampshire v. Bradley 
 Hampson v. Bramwood 
 
 17. Fall 
 Hampstead i7. Johnson 
 Hampton v. Moorhead 
 
 V. Spencer 
 Hanbury r. Kirkland 
 
 t7. Spooner 
 Hanby r. Roberts 
 Hanclutt r. Briscoe 
 Hancock v. ISIinott 
 
 900 
 
 206, 207 
 
 206 
 
 636 
 
 864 
 
 592, 593 
 
 218, 219 
 
 395 
 
 412 
 
 358 
 
 160, 182 
 
 87 
 
 83 
 
 477, 552 
 
 208, 368 
 
 64 
 
 310 a, 646, 652, 653 
 
 367 
 
 187 
 
 114 
 
 647, 651 
 
 147 
 
 766 
 
 511 c, 785 
 
 195 
 
 83, 863 
 
 239 
 
 276, 280 
 
 855 
 
 171 
 
 627, 671 
 
 672 
 
 585, 594 595, 597, 600 
 
 602 jB 
 
 626 
 
 217 
 
 222 
 
 903 a 
 
 179 
 
 427, 904 
 
 656 
 
 612, 620 
 
 324 
 
 171 
 
 298 
 
 237 
 
 287 
 
 459 
 
 863 
 
 195, 861 
 
 859 
 
 117, 118, 612, 620 
 
 826 
 
 127 
 
 183 
 
 232 
 
 704, 748 
 
 900 
 
 901, 903 a 
 
 126 
 
 592 
 
 5116 
 
 82, 84, 85 
 
 261, 417, 418, 419, 
 
 466, 509 
 
 272 
 
 573 
 
 669, 8-50 
 
 562, 571 
 
 197
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 IXXVll 
 
 Hancock v. Smith 
 
 r. Titus 
 Ilancom v. Allen 
 Haiidick r. Wilkes 
 Ilaixlhiii ('. Iluiidlaa 
 Ilaudlt'v r. Daviua 
 
 V. Lyons 
 
 V. rainier 
 
 V. Siiodf^rass 
 
 V. Stutz 
 Handlin v. Davis 
 Hands I'. Hands 
 Ilane v. Vandeusen 
 Hanli-y v. Downing 
 Ilannuli r. Carnalian 
 
 345 
 1-27 
 
 444, 455 
 
 ■Ml 
 
 145 
 
 903 a 
 
 232 
 
 43, 448, 700 
 
 4U2, 408 
 
 242 
 
 1U7 
 
 250, 258 
 
 237 
 
 600, C(;2 
 4(it; 
 
 i;. Carrington 602 A, 602 J, 602 m, 602 (A/ 
 
 V. Hod^'son 201 
 
 Ilannan's Co., In re 24S 
 
 Hun no r. Stevens 881 
 
 Hannij; v. Mueller 83, 520 
 
 Hanntnn v. Spear 598, 795 
 
 Hansconi r. Marston 457 
 
 Haii>L'n V. liethclsen 7G 
 
 Hanson v. l'..'Verly 799, 808 
 
 V. Clia|)niau 018 
 
 V. Edgerly 179 
 
 V. First Fres. Church 137 
 
 V. Jacks 891 
 
 V. Keating 633 
 
 V. Little Sisters of the Poor 720 
 
 V. Miller 630, G43 
 
 V. Worthington 261, 2G2, 809, 877 
 
 Hapgood r. Perkins 441, 444 
 
 V. Rout 499 
 
 Happv V. Morton 733 
 
 Harbi'n v. Ijell 433 
 
 V. Darby 904 
 
 Harbison i'. Lemon 191 
 
 Harbster's Estate 520 
 
 Harcourt v. Harcourt 601 
 
 V. Knowle 218 
 
 I'. White 809 
 
 Hardage v. Stroope 358 
 
 Hardcastle v. Fisher 590, 000 
 
 Harden r. Darwin & Pulley 48, 120 
 
 Harden v. Parsons 416, 421, 441, 453, 850 
 
 HardenburLTh r. Blair 380 
 
 Harder v. Harder 126, 137, 138 
 
 Hardin v. Baird 82. 98 
 
 Harding v. Glyn 112, 248, 249, 250, 251, 
 
 256, 258, 699, 714 
 
 r. Handy 
 
 
 
 181), 
 
 190 
 
 V. Hardrett 
 
 
 
 220 
 
 828 
 
 V. Larntd 
 
 
 
 453, 
 
 010 
 
 V. Kaiidall 
 
 
 
 
 171 
 
 Hardinghani v. Nichols 
 
 
 
 
 219 
 
 Hardinan r. Ellanier 
 
 
 
 
 219 
 
 Hard wick v. Mynd 402, 
 
 495, 
 
 503, 
 
 779, 
 
 795, 
 
 
 
 804 
 
 800 
 
 807 
 
 I'. Vernon 
 
 
 
 821, 
 
 803 
 
 Hardy v. Boaz 
 
 
 
 
 677 
 
 V. Caley 
 
 
 
 246, 
 
 907 
 
 V. Call 
 
 
 
 
 891 
 
 V. Metropolitan Land Co 
 
 
 
 444 
 
 V. Reeves 
 
 
 
 637 
 
 802 
 
 V. Sanborn 
 
 
 
 
 540 
 
 V. Simpson 
 
 
 
 
 590 
 
 V. Skinner 
 
 
 
 590, 
 
 .591 
 
 Hare v. Sherewood 
 
 
 
 
 226 
 
 Harford r. Baker 680 
 
 V. Lloyd 835 
 
 V. Purrier 122 
 
 Hargreaves v. MitrhcU 601, 863 
 
 Ilargthoriie r. Milforth 421 
 
 Ilarincktll r. Orndorll 602 n 
 
 Marker v. Reilly 160 
 
 Harkin v. Darb'y 432 
 
 Harkkader I'. Leily 589 
 
 Darkness and Allsopp's Contract, In re 277 
 
 Harlan r. Brown 788 
 
 Uarland v. Binks 593 
 
 V. Trigg 112, 113, 116 
 
 Harland's Appeal 918 
 
 Ilarley v. llarley 626 
 
 v'. Platts 311 
 
 Harlow V. ftHster 873 
 
 Ilannon v. Carver 602 r 
 
 V. Siler 658 
 
 I'. Smith 223 
 
 Harmood v. Oglander 13, 347, 5C3, 800, 872 
 
 Harnard v. Webster 
 Harnett v. Maitland 
 
 r. McDougall 
 Harpending v. Dutch Church 
 Harpar v. Archer 
 
 V. Harper 
 
 I'. Hayes 
 
 V. Munday 
 
 V. Phelps 
 
 r. Straws 
 
 V. Williams 
 Harrald, In re 
 Harrigan i'. Smith 
 Harrington v. Brown 
 
 V. Duchattel 
 
 847 
 
 477, 552 
 
 070 
 
 45 
 
 127 
 
 75 
 
 770, 780 
 
 901 
 
 113, 116, 251, 2.53 
 
 275 
 
 239 
 
 903 a 
 
 803 
 
 195, 205, 428 
 
 214 
 
 V. Erie County Savings Bank 195 
 
 Harris v. American Bible Society 715, 748 
 
 Barnett 
 
 t'. Carter 
 V. Collins 
 f. Daugherty 
 V. Dole 
 
 V. Du Pasquier 
 V. F^iliott 
 V. Fly 
 V. Haines 
 V. Harlan 
 
 76, 77, 83 
 
 171 
 
 228 
 
 142, 169 
 
 680 
 
 711 
 
 133, 330 
 
 569, 570, 576 
 
 109 
 
 237 
 
 V. Harris 58, 275, 279, 451, 460, 002 na, 
 060, 931 
 
 V. Ingledew 
 V. Martin 
 I". Ml' Bane 
 r. Molntvre 
 V. M..tt " 
 I". Newton 
 f. Norton 
 V. Pepperell 
 V. Pounds 
 V. Poyner 
 I'. Pugli 
 r. Po(ip 
 r. S.nvell 
 V. Slaght 
 V. Sunmer 
 V. Taylor 
 r. Tremenheere 
 r. Tvson 
 V. Ifnion Bank 
 
 539, 595 
 918 
 £73 
 
 126. 141 
 
 654, e.-iS 
 
 257 
 
 221 
 
 186 
 
 890 a 
 
 451, 552 
 304 
 214 
 865 
 
 715, 716 
 591 
 642 
 
 202, 206 
 180 
 126
 
 Ixxviii 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Harris v. Williamson 171 
 Harrisburgh Bank v. Tyler 127, 133, 137, 
 
 138 
 Harrison, Jn re, 549, 551 
 V. Andrews 640 
 v. Asher 929 
 V. Battle 602y, 602?, 602/ 
 V. Boswell 8(;2 
 V. Brolaskej- G52, 653, 804 
 V. Brophy 715 
 V. Forth 222 
 V. Foster 451 
 V. Graham 261, 402, 41G, 419, 421 
 V. Guest 187, 195 
 V. Gurney 72 
 V. Harrison 94, 114, 248, 251, 255, 
 379, 380 
 V. Hill 658 
 V. Hollins 855 
 V. Howard 226 
 V. McMennomy 77 
 V. Manson 195 
 v. Mock 209, 596, 890 
 V. Naylor 306, 372 
 V. Prise 877, 929 
 V. Randall 476 
 V. Rowan 475 
 r. Rowley 272 
 V. Smith 828 
 V. Stewardson 873, 885 
 V, Thexton 440 
 V. Union Trust Co. 275 
 V. Warner 891 
 Harrison's Trusts, Re, 275 
 Harrod v. Fountleroy 229 
 Harrold v. Lade 126, 129, 206 
 Harrop v. Howard 670 
 Harshman v. Lowe 580 
 Harston v. Tenison 803 
 Hart V. Bayliss 305 
 V. East Union Railway 752 
 V. McFarland 590 
 V. Middlehurst 301 
 V. Sevmour 83, 225, 382, 520 
 V. Stephens 640 
 V. Ten Eyek 847 
 V. Tribe 112, 117, 620, 623 
 Hart's Appeal 863 
 Hartga v. Bank of England 242 
 Hartley v. Hurle 310, 649 
 Hartman v. Dowdell 640, 641 
 Hartnian's Appeal 282 
 Hartopp V. Hartopp 201 
 Hartshorne v. Nichols 714 
 V. Nicholson 700, 729 
 Hartson v. Elden 382 
 Hartwell v. Hartwell 214 
 Hartzell v. Brown 900 
 Harvard College r. Amory 450 
 V. Balch 253 
 V. Soc. for Promoting Theol. Ed- 
 ucation 724, 735, 739 
 Harvey, In re 348, 555 
 V, Alexander 109 
 V. Ashley 34 
 V. Aston 512, 514, 515, 517, 518 
 V. Cook 185 
 V. Cubbedge 815 h. 820 n 
 v. Gardner 75, 200 
 
 Harvey v. Harvev 451, 532, 614, 616, 647, 
 
 885 
 
 V. Lcdbetter 120 
 
 r. Mix 589 
 
 V. Mount 187, 189, 192 
 
 V. Penny backer 133, 137 
 
 Harwodd v. Fisher 640 
 
 V. West 112 
 
 Hascall v. King 472 
 
 Hasell, Kx parte 805 
 
 V. House 765 
 
 Hasher v. Hasher 863 
 
 Haskc-ll V. Hervey 763 
 
 Ilaskill V. Freeman 95 
 
 Haslen v. Kean 254 
 
 Hassam v. Hazen 511 r 
 
 Hassanclever v. Tucker 570, 571 
 
 Hassard v. Rowe 600 
 
 Hassel v. Hassel 570 
 
 Hastie & Silver v. Aiken 803 
 
 Hastings v. Baldwin 602 
 
 V. Belknap 592 
 
 V. Drew 242 
 
 V. Ord 104 
 
 Hatch V. Hatch 195, 200 
 
 V. St. Joseph 104 
 
 V. Smith 585 
 
 Hatchell v. Eggleso 633 
 
 Hatcher v. Hatcher 232 
 
 V. Massey 815 a 
 
 V. McNaniara 769 
 
 Hatfield v. Montgomery 228 
 
 Hathaway v. Hathaway 121 
 
 Hathorn v. Mavnard 815 c 
 
 Hathorne v. Root 920 
 
 Hathornthwaite v. Russell 816, 819 
 
 Hattersley v. Bissett 500 
 
 Hatton v'. Weems 910 
 
 Haup;hton v. Haughton 515 
 
 Ilault V. Townshend 708 
 
 Hauser v. Lehman 420, 421 
 
 V. Shore 597, 794, 795, 797, 
 
 798 
 
 Havelock v. Havelock 615 
 
 Havers v. Havers 818, 819 
 
 Haviland v. Bloom 027 
 
 V. Mvers 631, 632 
 
 Hawes v' Chaille 239 
 
 V. Oakland 242 
 
 V. Wyatt 192 
 
 Hawken v. Bourne 486 
 
 Hawker v. Hawker 308, 315 
 
 Hawkesworth ». Hawkesworth 603 
 
 Hawkin's Appeal 200 
 
 Trust, In re 272 
 
 Hawkins i;. Barney 855 
 
 V. Chapman 314, 806, 809 
 
 V. Chappell 427, 771 
 
 ». Gordon 86 
 
 V. Hawkins 843 
 
 V. Kemp 273, 290, 502, 511 b, 602 p, 
 
 800 
 
 V. Luscombe 309, 310 
 
 V. May 602/, 602 m, 602 p 
 
 V. Oheen 336 
 
 V. Obin 641 
 
 Hawks V Sailors 124 
 
 Hawkslev v. Barrow 008 
 
 Hawley v. Cramer 195, 197, 202, 205, 228,480
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Ixxix 
 
 Hawley v. James 72, 117, ICO, 240, 312, 
 324, 380, 890, 3'.t7, 398, 404, 40!i, 
 511, 502, 583, 779, 900 
 
 V. Ross 
 
 282, 341 
 
 Hawtayiie v. Bourne 
 
 480 
 
 Hawtliorne v. Browne 
 
 128 
 
 Haxall V. Sliippen 
 
 553 
 
 Ha.\ton V. Corse 
 
 396, 398 
 
 V. McClaren 
 
 104 
 
 Hay V. Master 
 
 112 
 
 V. rainier 
 
 550 
 
 Ilaydel v. Hurck 
 
 5U a, 910 
 
 Hayden v. Bucklin 
 
 855 
 
 V. Conn. Hospital 
 
 727 
 
 V. Stone 
 
 658 
 
 V. Stuart 
 
 238 
 
 Haydon v. Stone 
 
 863, 805 
 
 Haye v. Brewer 
 
 502 
 
 Hayes, Ex parte 
 
 617, 618, 623 
 
 ' V. Applegate 
 
 400 
 
 V. Baylev 
 
 584 
 
 V. Carroll 
 
 127 
 
 V. Doane 
 
 590 
 
 V. Goode 
 
 229, 803 
 
 V. Hayes 
 
 380 
 
 V. Heidelberg 
 
 596 
 
 V. HoUis 
 
 1.39 
 
 V. Horine 
 
 232 
 
 V. Jackson 
 
 94, 562 
 
 V. Kershaw 
 
 97, 98, 109 
 
 V. Kindersley 
 
 140, 147 
 
 V. Kingdome 136 
 
 , 146, 151, 101 
 
 V. Otelly 
 
 921 
 
 V. Pratt 
 
 248, 720, 729 
 
 V. Tabor 
 
 299 
 
 V. Ward 
 
 72, 210 
 
 Hayne v. Hayne 
 
 183 
 
 V. Mclntlre 
 
 865 
 
 Haynes v. Forshaw 
 
 809, 811 
 
 V. Redington 
 
 455 
 
 Haynesworth v. Cox 
 
 511a 
 
 Hays I'. Jackson 
 
 94, 562 
 
 ' V. Quay 
 
 82, 139 
 
 V. Reger 
 
 79 
 
 Hayter v. Trego 
 
 722, 729, 731 
 
 Hayton v. Wolfe 
 
 264 
 
 Hayward r. Cope 
 
 179 
 
 'v. Hayward 
 
 637, 642, 644 
 
 V. Ovey 
 
 878 
 
 Haywood i*. Craven 
 
 748 
 
 V. Ensley 
 
 75 
 
 Hazard v. Irwin 
 
 171 
 
 Hazel V. Hogan 
 
 bor, 
 
 V. Woods 
 
 5(15 
 
 Hazeltine v. Foumey 
 
 82S 
 
 Hazclton v. Valentine 
 
 440 
 
 Heacock v. Coateswortb 
 
 135 
 
 V. Fly 
 
 184 
 
 Head v. Egerlon 
 
 219 
 
 I'. Gould 
 
 343, 454, 407 
 
 V. Head 
 
 672, 673 
 
 V. I'rnvidence Ins. Co. 
 
 44 
 
 V. Tcyiiham 
 
 878 
 
 Head's Trustees, In re 
 
 308, 507 
 
 Headen r. Quillian 
 
 705 
 
 Header's Ex'rs 
 
 538 
 
 Heaiey, In re 
 
 630 
 
 Healy r. Alston 
 
 347 
 
 V. Rowan 
 
 34 
 
 Heap V. Tongue 185 
 
 Heard r. Eldredge 545, 918 
 
 i\ I'illev 206 
 
 V. Read 490, 498. 5116 
 
 Heardson v. Williamson 312, 317 
 
 Hearie v. Botelers 239 
 
 V. Greenback 33, 48, 52, 324, 489, 
 
 615 
 
 Hearn v. Crutcher 602 
 
 V. Hearn 843 
 
 Hearns r. Savage 918 
 
 V. Waterbury Hospital 699 
 
 Heartley v. Nicholson 96 
 
 Heath v. Bishop 386 a, 555 
 
 V. Carter 145 
 
 V. Erie R. R. Co. 875, 876, 877 
 
 V. Heath 628, 632 
 
 V. Henly 863 
 
 V. Knapp 336, 337 
 
 V. Lears 555 
 
 V. Lewis 616 
 
 V. Page 129 
 
 V. Percival 878 
 
 V. Slocum 127 
 
 I'. Withington 288 
 
 Heathcote v. Hulme 468, 470 
 
 V. Paignon 187 
 
 Heathnian ». Hall 647, 648 
 
 Heath's Appeal 181 
 
 Heatlev v. Finster 221 
 
 V. 'Thomas 511 b, 657, 602 
 
 Heaton, Ex parte 454 
 
 Matter of 610 
 
 V. Hassell 635 
 
 V. Marriott 416 
 
 Ilebblethwait v. Cartwright 578 
 
 Hebron v. Kellv 76 
 
 Hecht V. Slanev 865 
 
 Heck V. Clippenger 647, 648, 651 
 
 Heckert's Appeal 918 
 
 Hedges v. Ricker 528, 709 
 
 Hefferman v. Addams 511 c 
 
 Heiglie v. Littig 546 
 
 Heidenheimer v. Bauman 83, 729 
 
 Heighington v. Grant 471, 902 
 
 Heighten v. Grant 903 a 
 
 Heilner v. Imbrie 218 
 
 Heinz v. White 212 
 
 Heiskell v. Powell 126 
 
 V. Trout 127 
 
 Heist V. Baker 232 
 
 Helan v. Russell 701 
 
 Ilclfensteiiio v. Garrard 299 
 
 Ilfllugas r. H.-Ilcgas 602« 
 
 H.llman v. McWilliams 86, 104 
 
 Hellman's Will 927 
 
 Helm's Ex'r. v. Rogers 803 
 
 Helmev r. Heitcamp 602 jf 
 
 Heiins'r. Franciscus 627, 631, 636, 645 
 
 Ilim V. Rushowski 602 66 
 
 Henienway r. Hemenway 547 
 
 Hemnier i'. Cooper 173 
 
 Ilemmings v. Munckly 514, 515, 517 
 
 Hemmingway t'. Mathews 640 
 
 Hempfield R. R. Co. v. Thomburv 2'^2 
 
 Hemi)hill's Appeal 440, 456, 459," 400, 4nr,, 
 
 G18 
 
 Estate 018 
 
 Hempstead v. Hempstead 126
 
 Ixxx 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Ilemstreet v. Wheeler 
 
 
 76 
 
 Henchey v. Henchey 
 
 82 
 
 843 
 
 Heiicluiianv. Att.-Gen. 
 
 
 329 
 
 Iluiulerson v. Adams 
 
 
 299 
 
 V. Atkius 
 
 
 576 
 
 V. Burton 
 
 
 232 
 
 V. Cross 
 
 
 152 
 
 V. Downing 
 
 590 
 
 5:)1 
 
 V. Henderson 
 
 
 100 
 
 V.Hill 300,312,815 a 
 
 V. Hoke 
 
 12G 
 
 133 
 
 V. Hunter 
 
 312, 744 
 
 748 
 
 V. Kennicott 
 
 
 580 
 
 V. Mclver 
 
 
 912 
 
 V. Vaulx 
 
 
 541 
 
 V. Virden Coal Co. 
 
 
 386 
 
 V. Warmack 
 
 
 127 
 
 V. Williams 
 
 
 765 
 
 Henderson's Appeal 
 
 
 589 
 
 Handle}' v. Westmeath 
 
 
 672 
 
 Hendrick v. Hopkins 
 
 
 191 
 
 Hendricks v. Nunn 
 
 
 166 
 
 V. liobinson 
 
 
 428 
 
 Hendrickson v. Decow 
 
 730 
 
 733 
 
 V. Hendrickson 
 
 863 
 
 865 
 
 Heneke v. Florin 
 
 
 137 
 
 Heiigst's Appeal 
 
 416, 
 
 417 
 
 Henkle v. Koyal Ins. Co. 
 
 
 226 
 
 Henley v. Axe 
 
 
 188 
 
 V. Cook 
 
 
 185 
 
 V. Phillips 
 
 
 900 
 
 V. Stone 
 
 
 873 
 
 Hennershotz's Estate 
 
 
 154 
 
 Hennessey v. Bray 
 
 265 
 
 846 
 
 V. Western 
 
 591, 592, 
 
 599 
 
 Henrj' v. Dilley 
 
 
 676 
 
 V. Doctor 
 
 
 282 
 
 V. Morgan 
 
 222 
 
 330 
 
 ■c. Raiman 
 
 
 202 
 
 V. Smith 
 
 
 660 
 
 Henry County v. Winnebago 
 
 230 
 
 728 
 
 Henschel v. Mamero 
 
 
 171 
 
 V. Maurer 
 
 
 163 
 
 Henshaw v. Morpeth 
 
 
 694 
 
 V. Sumner 
 
 
 586 
 
 Hensman v. Hackney 
 
 
 724 
 
 Henson v. Kinard 
 
 
 98 
 
 V. Wright 
 
 
 520 
 
 Henvell v. Whittaker 
 
 
 570 
 
 Hepburn v. Dunlop 
 
 
 173 
 
 V. Snyder 
 
 
 232 
 
 Hepburn's Appeal 
 
 652 
 
 899 
 
 Herbergham v. Vincent 
 
 
 92 
 
 Herbert v. Blunden 
 
 
 359 
 
 V. Hanrick 
 
 
 782 
 
 V. Herbert 
 
 
 477 
 
 V. Lownes 
 
 
 182 
 
 V. Scoffield 
 
 
 232 
 
 V. Smith 
 
 
 195 
 
 V. Webster 
 
 
 671 
 
 Hercy v. Dinwoody 
 
 867 
 
 809 
 
 Hereford v. Adams 
 
 698, 699 
 
 725 
 
 V. Ravenhill 
 
 
 461 
 
 Heriots's Hospital v. Ross 744, 907, 910, 914 
 Hermstead's Appeal 918 
 
 Herndon v. Pratt 858 
 
 Heme v. Meeres 187, 195, 428 
 
 Heron v. Heron 137, 210 
 
 Herr v. Payson 202 
 
 Herr's Appeal 
 Herr's Estate 
 Ilerrick's Estate 
 Herriott v. Prime 
 Hertell v. Bogert 
 Hertzfeld v. Bailej* 
 Hervey v. Audland 
 Hesing v. Att.-Gen. 
 llesketh v. Murphy 
 Hess V. Dean 
 Hess's Estate 
 Hester v. Hester 
 
 V. Wilkinson 
 Hetlield v. Debaud 
 Heth V. Richmond 
 lletzel V. Hetzel 
 Heugh V. Jones 
 Heuser v. Harris 
 Hewes v. Dehon 
 Hewett, In re 
 
 V. Foster 
 
 V. Hewett 
 
 V. Wotton 
 Hewit V. Hewit 
 Hewitt V. Crane 
 
 V. Loosemore 
 
 V. Morris 
 Hews V. Kenney 
 Heyer v. Burger 
 Hej'sham v. Heysham 
 Hevwood V. Buffalo 
 Hibbard D. Lamb 19,275, 
 Hibbert v. Cook 
 
 V. Hibbert 
 Hichens v. Kelly 
 Hickens v. Congreve 
 Hickey v. Burt 
 
 V. Young 
 HickJey v. Farmers 
 Hicklius V. Boyer 
 Hickman v. Stewart 
 
 V. Upsall 
 Hickox V. Elliott 
 Hicks V. Hicks 
 
 V. Sallitt 
 
 V. Wrench 
 Hickson v. Fitzgerald 
 Hidden v. Hidden 
 
 V. Jordon 
 Hide V. Ha_vwood 
 Hieronymous v. Mayhall 
 Higbee v. Higbee 
 
 V. Rice 
 Higginbottom v. Hulme 
 
 V. Peyton 
 Higgins V. Joyce 
 Higginson v. Barneby 
 
 V. Turner 
 High V. Batte 
 Highway v. Bauner 
 Hildreth v. Eliot 
 Hileman v. Bouslaugh 
 Hill, Ex parte 
 
 V. Anderson 
 
 V. Atkinson 
 
 V. Bean 
 
 V. Brown 
 
 V. Buckley 
 
 V. Burns 
 
 647 
 
 195, 428 
 453 
 248 
 
 225, 814 
 
 239 
 
 111 
 
 732 
 
 699 
 
 779 
 
 468 
 
 500r, 602, 8;)4 
 
 438, 439, H18 
 
 4(J2 
 
 458, 836, 847 
 
 254,498, 511a 
 
 680 
 
 699, 748 
 
 562, 566 
 
 658 
 
 419, 424, 902 
 
 249, 255, 492 
 
 693 
 
 508, 510 
 201 
 236 
 
 550, 551 
 145 
 674 
 614 
 660 
 497, 503,-504, 721 
 477, 552, 913 
 
 123, 907 
 873 
 885 
 330 
 137 
 585 
 552 
 195 
 929 
 873 
 851 
 872 
 899 
 
 271, 898 
 
 448 
 
 75, 134 
 
 909, 910 
 861 
 
 143, 145 
 
 302 
 
 555 
 
 86 
 
 178 
 
 275 
 
 43 
 
 218, 221, 239 
 
 362 
 
 104 
 
 358 
 
 207, 555 
 53 
 480 
 568 
 431 
 770 
 
 705, 724 
 
 &c. Bank 
 
 871.
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Ixxxi 
 
 Hill V. Chapman 614 
 
 V. Conrad 253 
 
 V. Cook 152 
 
 V. Cornwall 104 
 
 t;. Davis 426 
 
 V. Diirand 873 
 
 V. Edmonds 633 
 
 V. Fo{,^g 242 
 
 V. Gouime 840 
 
 V. Gray 173 
 
 V. Hill 87, 94, 114, 375, 627, 645, 7C7 
 
 V. Jossclya 411 
 
 V. London IIG, 151, 152, 158 
 
 V. Ma^an 891, U07 
 
 V. i\Ianchester W. Works 752 
 
 V. Meinhard 145 
 
 V. Morgan 747, 891 
 
 V. I'age 114, 540 
 
 V. I'alil G9 
 
 V. Pine River Bank 143 
 
 V. Reardon 70 
 
 V. Simpson 225, 810, 811, 814, 815 
 
 V. Tierney 845 
 
 V. Walker 481 
 
 Hill, Fontaine & Co. v. Coolidge 828 
 
 Hillary v. Waller 349, 351, 352, 354, 8G6, 8G7 
 
 Hilleglass v. Hilleglass 782 
 
 Hillen f. Iselin 511 b 
 
 Hilliard, Kx parte 463, 4G4 
 
 V. Beattie 248 
 
 Hillier v. Jones 578 
 
 Hillnian i;. Westwood 286 
 
 Hillyard v. Miller 393, 399, 738, 748, 7G5 
 
 Hillyer v. Bennett 53 
 
 Hilton V. Girard 86 
 
 V. Ken worthy 308 
 
 Hinchel v. Daley 905 
 
 Hinchenbroke v. Seymour 511 a 
 
 Hinchmal v. Kmans 184 
 
 Hinckley v. Hinckley 335 
 
 V. Maclaerns 257 
 
 Hinckley's Estate 737 
 
 Hind t\"Poole 414, 495 
 
 V. Sellv 451 
 
 Plinde V. B'lakc 585, 593, 826. 827 
 
 Ilindman v. Dill 590, 591 
 
 Hindmarsh v. Southgate 53 
 
 Hind's Estate 639 
 
 Hinds V. Hinds 261 a 
 
 V. Mooers 602 n 
 
 Hindson v. Weatherill 199, 202 
 
 Hincs V. SpruiJl 559 
 
 Hinkle v. Landis 122 
 
 V. Wanzer 68 
 
 ITinney v. Phillips 679 
 
 Hinnings v. Hinning3 9.'!0 
 
 Hinson v. Williamson 248, 415 
 
 Plinton, Ex parte 388 
 
 V. Hinton 192, 322 
 
 V. Kennedy 456 
 
 V. Pritchard 169 
 
 riintze 1'. .Stingel 781 
 
 Hinves v. Hinves 450, 451, 554 
 
 Hinxman v. Poyndcr 112 
 
 Hipkins v. Bernard 918 
 
 Hipp V. Ilutchell 602 e 
 
 Hir.'ih V. Aiier 79 
 
 Hiserodt v. Hamlett 104 
 
 Hitch V. Lewortiiy 408, 508 
 
 VOL. I.—/ 
 
 Hitch V. Stonebraker 277 
 
 Hitchcock I'. Bank of United States 2G3 
 
 llitchens v. Hilchens 317 
 
 Hile V. Hite 229, 453, 545, 575, 918 
 
 Hitner's Appeal 672 
 
 llitt ». Applewhite 60 
 
 Hitz V. National Met. Bank 145 
 
 Hoag V. Kfiiney 250 
 
 Hoare v. Hoare' 672, 727 
 
 V. Osborne 706, 714 
 
 V. Parker 542 
 
 V. Peck 862 
 
 Hoare's Case 486 
 
 liobart i'. Andrews 595 
 
 152, 153 
 672 
 894 
 175 
 
 485 
 203, 440, 845, 848, 849 
 201 
 602 0, 78U 
 573 
 873 
 596 
 
 V. Suffolk 
 
 Hobbs V. Hull 
 
 V. McLean 
 
 V. Parker 
 
 V. Wavet 
 
 Hobday v. Peters 
 
 Hoblyn v. lloblyn 
 
 Hobson V. Bell 
 
 V Blackburn 
 
 V. Staneer 
 
 V. Thelluson 
 
 V. Trevor 68, 872 
 
 V. Wliitlow 828 
 
 Hockenbury i'. Carlisle 202 
 
 Hocking, Jn re 66 
 
 Hocklev V. Bantock 469 
 
 V. Mawlcy 250, 251 
 
 Hodgdon v. Sliannon 275 
 
 Hodge V. At t. -Gen. 40 
 
 V. Hawkins 471, 472, 918 
 
 V. Wyatt 590 
 
 Hodgens v. Hodgens 6.36 
 
 Hodges, In re 511, 828 
 
 V. Blacrrave 78G 
 
 V. Bullock 828 
 
 V. Cobb 678 
 
 V. Hodges 671 
 
 V. New England Screw Co. 207 
 
 Hodges' Estate 281, 4G6 
 
 Ilodgkinson, In re 902 
 
 Hodgson V. Bibby 850 
 
 V, Bussey 363 
 
 V. Hodgson 613 
 
 Hodgson's Settlement 297 
 
 Hod'kinson t-. Quinn 802, 8'^3 
 
 Hodle V. Healey 862 
 
 Ilodnett's Estate 171 
 
 Hodson V. Ball 385 
 
 Hodson's Settlement, In re 658 
 
 Hoeffer v. Clogan 715 
 
 Hoes V. Van Hoesen 569, 571 
 
 Hoffen's Estate 699 
 
 Hoffman v. Anthony 602 q 
 
 V. Canow 128 
 
 Hogan V. Jaques 162 
 
 V. Txpret re 602 k 
 
 V. Staghorn 150 
 
 V. Wvman 58 
 
 Hoge 1'. Iloire 181,185,206 
 
 Iloilhton V. Hoghton 185, 194, 201 
 
 Hoile r. Bailev 843 
 
 Holbrook r. Allen 585 
 
 V. Comstock 672 
 
 I'. Waters 629, 642 
 
 Holcomb V. Coryell 275
 
 Ixxxii 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Holcomb V. Holcomb 411, 419, 510, 910 
 
 Holden, Jn re 277 
 
 V. Crawford 187 
 
 V. New York & Erie Bank 242 
 
 V. Strickland 60 
 
 Holder, Jn re 448 
 
 V. Durbin 277, 287 
 
 V. Nunnelley 137 
 
 Holdom V. Ancient Order of United 
 
 Workmen 181 
 
 Holdridge v. Gillespie 538 
 
 Holdship V. Patterson 386 a 
 
 Holdsworth v. Goose 784 
 
 V. Shannon 770 
 
 Holford V. Phipps 901, 921 
 
 V. Wood 571 
 
 Holgate V. Eaton 127 
 
 Holgate »'. Hayworth 900 
 
 V. Jennings 451, 551 
 
 HolIada}''s Estate 4G2 
 
 Holland v. Alcock 99, 260, 701, 710, 713, 
 
 715, 723 
 
 V. Baker 873, 874, 885 
 
 V. Citizens' Bank 223 
 
 V. Holland 200 
 
 V. Hughes 467 
 
 V. Peck 713, 724, 748 
 
 Holland's Case 17 
 
 Hollenbeck v. Pixley 672 
 
 Holliday v. Coleman 541 
 
 Hollins V. Brierfield Coal Co, 242 
 
 Hollinshead's Appeal 76 
 
 Hollinshed v. Allen 82 
 
 I'. Simms 16G 
 
 Hollis V. Hollis 126 
 
 Hollis's Case 803 
 
 Hollis-street Meeting-house v. Pierpont 734 
 
 Hollowav, In re 511 b 
 
 V. Headington 108, 170, 367 
 
 Holraan, Ex parte 352 
 
 V. Loynes 202 
 
 Holman's Appeal 562 
 
 Holme V. Williams 708 
 
 Holmes, Be 72, 671 
 
 V. Bell 883 
 
 V. Campbell 129 
 
 V. Coates 705 
 
 V. Coghill 108, 511 b 
 
 V. Dring 453, 621 
 
 V. Fresh 187 
 
 V. Oilman 828 
 
 V. Holmes 920 
 
 V. Joslin 618 
 
 V. Lysight 514 
 
 V. Mead 748 
 
 V. Mitchell 546 
 
 V. Penney 386 6 
 
 V. Pickett 299 
 
 V. Reynolds 658 
 
 V. Stone 218 
 
 V. Trustees 384 
 
 V. Turner's Falls Co. 199 
 
 Holrovd V. Marshall 68 
 
 Holt V. Agnew 204 
 
 V. Hogan 254 
 
 V. Holt 129, 196, 538 
 
 Homan n. Hague 886 
 
 Home V. Patrick 654 
 
 Homer v. Homer 82, 127 
 
 Homer v. Shelton 
 
 
 64T 
 
 Hon V. Hon 
 
 
 86 
 
 Hone V. Van Schaick 
 
 
 380 
 
 Honner v. Morton 
 
 
 626, 639 
 
 Honor v. Honor 
 
 
 361, 302 
 
 Honore v. Bakewell 
 
 237, 
 
 238, 239 
 
 V. Bridport 
 
 
 606 
 
 V. Hutchins 
 
 
 1.33 
 
 Hooberrj- v. Harding 
 
 
 300 
 
 Hood V. Bramlett 
 
 
 511 « 
 
 V. Clapham 
 
 451, 
 
 467, 931 
 
 V. Fahnestock 
 
 
 217, 222 
 
 V. Haden 
 
 
 408 
 
 V. Oglander 
 
 113, 
 
 115, 386 
 
 V. Phillips 
 
 
 348 
 
 Hood-Barrs v. Heriot 
 
 
 671 
 
 Hook V. Dyer 
 
 
 341, 464 
 
 V. Dundas 
 
 
 512, 555 
 
 V. Kiiinear ' 
 
 
 874 
 
 V. Lowry 
 
 
 471 
 
 Hooper v. Eyles 
 
 
 137 
 
 V. Feigner 
 
 
 299 
 
 V. Holmes 
 
 
 86 
 
 V. Hooper 
 
 
 393, 737 
 
 V. Rossiter 
 
 
 544, 545 
 
 V. Savage 
 
 
 462 
 
 V. Scheimer 
 
 
 328 
 
 V. Tuckerman 
 
 
 590 
 
 Hoot V. Sorrell 
 
 
 664 
 
 Hoover v. Hoover 
 
 
 571, 796 
 
 V. Samaritan Society 
 
 
 667 
 
 Hope V. Brewer 
 
 
 72 
 
 V. Carnegie 
 
 
 71 
 
 V. Clifden 
 
 
 580 
 
 V. D'Hedouville 
 
 
 450 
 
 V. Fox 
 
 
 889 
 
 V. Gloucester 
 
 
 869 
 
 V. Harman 
 
 
 103 
 
 V. Hayley 
 
 
 68 
 
 V. Hope 
 
 
 603 
 
 V. Johnson 
 
 
 308 
 
 V. Liddell 245 
 
 ,337 
 
 , 806, 846 
 
 V. Stone 
 
 
 246 rt 
 
 Hopkins v. Burr 
 
 
 828 
 
 V. Glunt 
 
 
 112 
 
 V. Grimshaw 
 
 315 
 
 , 384, 706 
 
 V. Hopkins 151, 299, 301, 304, 385, 863 
 
 V. Mvall 460, 467, 655 
 
 r. Ray 590 
 
 V. Turnpike Co. 31 
 
 V. Upshur 748 
 
 V. Ward 17, 328 
 
 Hopkinson v. Burghly 821 
 
 V. Dumas 126, 322, 347 
 
 V. Ellis 903 rt 
 
 V. Roe 912 
 
 Hopper V. Adee 414 
 
 V. Conyers 837, 839, 842 
 
 V. Hopper 195 
 
 Hoppes V. Check 770 
 
 Hora V Hora 118 
 
 Hord V. Hord 632 
 
 Horde v. Suffolk 705, 712 
 
 Hore V. Beecher 184, 633 
 
 V. Woufle 639 
 
 Horn V. Barton 767 
 
 V. Horn 796 
 
 V. Lockhart 456 
 
 Hornbeck v. Am. Bible Soc. 730
 
 INDEX TO CASES CITED. 
 [References are to Bections.] 
 
 Home V. Askham 
 
 V. Barton 
 
 V. Lyeth 
 Horner i'. Swann 
 Horns Ijy r. Lee 
 Horrey v. Glover 
 Horrock v. Ledsam 
 Horseley v. Chaloner 
 
 V. l'"awcett 
 Horsey r. Hough 
 Horsfall, In re 
 Horton v. Urocklehurat 
 
 V. Horner 
 
 V. Horton 
 
 r. Kiley 
 
 V. Sledge 
 
 V. Smith 
 Horto-pp i'. Hortopp 
 Horwitz c. Norris 
 Horwood V. West 
 
 511a 
 
 361, 371, 375 
 
 350, 370 
 
 7t)5 
 
 g;j'j 
 
 540, 546, 547 
 
 878, 8'J2 
 
 171, 443 
 
 884 
 
 187, 602 2 
 
 337 
 
 440, 821 
 
 238 
 
 309, 310 
 
 212 
 
 2'M 
 
 347, 348 
 
 172 
 
 254 
 
 112 
 
 Hosack V. Rogers 593, 826, 894, 918 
 
 Hosea v. Jacobs 381, 748 
 
 Hosford, In re 448 
 
 V. Merwin 98 
 
 Hoskins v. Nichols 468, 887 
 
 Hospes V. Northwestern Manuf. Co. 242 
 
 Hotchkins v. Gallatin Turnpike 588 
 
 Hotchkiss V. Fortson 191 
 
 Hotchkj's, In re 477 
 
 Hotel Co. I'. Wade 206 
 
 Hotz's Estate 514 
 
 Houck V. Houck 501 
 
 Hough, In re 309 
 
 V. Blythe 685 
 
 V. Harvev 918 n 
 
 V. Kichar'dson 171, 173, 174, 175, 228 
 
 Hougham v. Sandvs 511 c, 785 
 
 Houghton, Ex parte 126, 130, 131 
 
 V. Davenport 815 b, 828 
 
 V. Davis 595 
 
 V. Hapgood 324 
 
 House I'. Kountze 87 
 
 V. Way 449 
 
 Household S. M. Co. v. Vaughan 449 
 
 Houston V. Embry 649, 651 
 
 V. Nowland 593 
 
 V. Thornton 177 
 
 Hovenden v. Anneslev 40, 228, 229, 325, 
 
 855, 857, 858, 8(Jl, 8(!2, 805 
 
 Hovey v. Blakeman 417, 421, 422, 423, G70 
 
 V. Blanchard 222 
 
 V. Bradbury 8G3 
 
 r. Dary 451 
 
 How V. Bishop 142 
 
 V. Camp 216, 585 
 
 r. Godfrey 904,910 
 
 V. Hutch 299 
 
 I'. Sherewood 22'! 
 
 V. Weldon 171, 187, 188 
 
 V. Winterton 8()3 
 
 Howard v. Aiken 803 
 
 V. American Peace Society 262. 699 
 
 724, 748 
 
 r. Ames 002 o 
 
 V. Chaffers 576, 805 
 
 V. Digby 605 
 
 V. Duncora 787 
 
 V. Edgell 187 
 
 V. Fay 828, 838 
 
 Howard v. Gilbert 
 V. Hatch 
 V. Henderson 
 t". Hooker 
 V. Howard 
 V. Jenimet 
 r. Manning 
 r. Moffatt 
 V. Morton 
 V. I'apera 
 t'. (iuattlebaum 
 
 Ixxxiii 
 
 282, 881 
 
 602 r 
 
 300 
 
 213, 653 
 147 
 837 
 468 
 545 
 627 
 816, 818, 819 
 
 453, 863 
 
 V. Rhodes 276, 280, 282, 283, 901 
 
 V. Savings Bank 98 
 
 V. Thornton 402 
 
 V. Waters 275 
 
 t'. Whitfield 495 
 
 Howard Ins. Co. v. Halsey 222 
 
 Ilowarth v. Mills 66 
 
 llowden v. Haight 212 
 
 V. Rogers 72 
 
 Howe, In matter of 43, 44 
 
 V. Dartmouth 440, 444, 450, 455, 467, 
 
 541, 547, 548, 549, 848 
 
 V. Freeman 759 
 
 V. Howe 126, 450, 451, 547 
 
 V. Medcraft 572 
 
 V. North 658 
 
 V. School District 734 
 
 V. Waldron 920 
 
 Howell r. Ashmore 218 
 
 V. Baker 135 
 
 V. Barnes 493, 765 
 
 V. Edgar 592 
 
 V. Hanforth 556 
 
 V. Howell 126, 362, 541, 633, 865, 872 
 
 V. Price 564 
 
 V. Ransom 202 
 
 V. Tvler 511 c 
 
 V. Whitchurch 182 
 
 Howell's Estate 472 
 
 Hower V. Geesaman 330 
 
 Howgrave v. Cartier 580 
 
 Howland v. Blake 137 
 
 Howman r. Currie 640 
 
 Howorth I'. Dewell 116 
 
 Howse V. Chapman 704, 903 a 
 
 Howth V. Owens 875 
 
 Hoxie r. Carr 126, 137, 814 
 
 V. Finney 252 
 
 I". Hoxie 121 
 
 Hoy V. Master 113, 115 
 
 Hovle V. Jones 861 
 
 ■ V. Stowe 530 
 
 Hovsradt, In re 275 
 
 Hoyt, In re 453, 541, 545 
 
 V. Hilton 624 
 
 V. Latham 195 
 
 Hubbard v. Elmer 769 
 
 V. Fi<her 918 
 
 V. (ierman Cath. Cong. 730, 708 
 
 V. Goodwin 64, 131 
 
 I'. Llovd 263, 574 
 
 V. Manhattan Trust Co. 855 
 
 r. U. S. Mortgage Co. 863 
 
 r. Young 451 
 
 Ilubbell r. Ilubbell 876 
 
 t'. Medbury 864 
 
 Hubble V. Osborne 147 
 
 Huckabee v. Billingsly 498, 602*, 921
 
 Ixxxiv 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Iluddleston, In re 253 
 
 Hudson V. (Jarmichael 0tJ7 
 
 Hudson 205,414,425, 8(13 
 
 V. Kinibrough 
 
 V. Maze 
 
 V. Morris 
 
 V. Wadsworth 
 
 V. White 
 Hudson B. C. Co. r. Glencoe Co 
 Huff, Ex parte 
 
 V. Earle 
 
 r. Wright 
 Huger V. Huger 
 Hugh I'. Smith 
 Hughes, L'x parte 
 
 V. Caldwell 
 
 S(il 
 590, GOO 
 171 
 541 
 79, 124 
 347 
 
 4i;i 
 
 602 « 
 
 084 
 
 610, 780 
 
 471 
 
 209, 285 
 
 336 
 
 55, 22G, 228 
 
 439, 4G2 
 
 150, 158, 159 
 
 220 
 
 219 
 
 71 
 
 612, 613 
 
 232, 235, 236 
 
 884, 888 
 
 669 
 
 358 
 
 471 
 
 081 
 
 790, 794 
 
 511c 
 
 40, 240, 325, 6G7 
 
 243 
 
 206 
 
 600, 601 
 
 418, 426 
 
 V. FLdwards 
 
 V. Enipson 
 
 V. Evans 
 
 V. Garner 
 
 V. Garth 
 
 V. Hall 
 
 V. Hughes 
 
 V. Kearney 
 
 t". Key 
 
 V. Mills 
 
 V. Nicklas 
 
 V. J'eople 
 
 V. Peters 
 
 V. Tabb 
 
 V. Turner 
 
 V. Wells 
 
 V. Williams 
 
 V. Wilson 
 
 17. Wvnne 
 Hughlett'z). Hughlett 
 Hughson V. Cookson oaz 
 
 V. Mandeville 218 
 
 Huguenin v. Baseley 104, 171, 181, 184, 
 
 187, 189, 192, 204, 206, 210, 211, 511 a 
 Hulkes V. Barrow 532, 533 
 
 Hull V. Hull 397, 398 
 
 V. Pearson 712 
 
 Hullman v. Honcomp 707, 748 
 
 Hulls V. Jeffrey 586 
 
 Hulme V. Hulfne 285, 286, 402 
 
 V. Tenant 654, 655, 657, 662, 670 
 
 Hulse V. Wright 594 
 
 Humberstone v. Chase 242, 875 
 
 V. Humberstone 376, 383, 390 
 
 Humbert v. Trinity Church 45, 855 
 
 Humble t'. Bill 796,809,815 
 
 Hume V. Lopes 453 
 
 V. Richardson 551 
 
 Hummer v. Schott 232 
 
 Humph V. Morse &92 
 
 Humjihrey v. Richards 664, 668 
 
 Humphrey v. HoUis 874 
 
 V. Morse 269 
 
 Humphreys, In re 622 
 
 Hun V. Cary 401, 459 
 
 Hungate v. Hungate 126 
 
 Hunperford v. Earle 590 
 
 Hunnewell v. Lane 
 Hunt V. Ball 
 
 Bass 
 V. Bateman 
 V. Booth 
 V. Bullock 
 
 602 o 
 
 205, 602 V, 602 ee, 771 
 
 568 
 
 647 
 
 759 
 
 Hunt V. Crawford 
 
 
 328 
 
 V. Elliott 
 
 
 86 
 
 V. Evans 
 
 
 92 
 
 V. Fisher 
 
 
 786 a 
 
 V. Friedman 
 
 
 134 
 
 V. Hamilton 
 
 
 182 
 
 V. Holden 
 
 
 500 
 
 V. Hunt 299, 
 
 347, 
 
 456, 672 
 
 V. Maldonado 
 
 
 607 
 
 V. Mathews 
 
 183, 
 
 208, 213 
 
 V. Moore 
 
 140, 
 
 171, 189 
 
 V. Peacock 
 
 
 882 
 
 V. Rousmaniere 
 
 184, 
 
 226, 499 
 
 V. Scott 
 
 
 451 
 
 V. Smith 
 
 
 828 
 
 V. Townshend 
 
 
 783 
 
 V. Watkins 
 
 
 546 
 
 V. Wheeler 
 
 
 568 
 
 Hunt, Appellant 
 
 
 453 
 
 Hunter, In re 
 
 
 701 
 
 V. Anderson 
 
 
 324,411 
 
 V. Atkins 190, 
 
 195, 
 
 202, 210 
 
 V. Baxter 
 
 
 481 
 
 V. Gibson 
 
 
 282 
 
 V. Hallett 
 
 
 639 
 
 V. Hubbard 
 
 
 864 
 
 V. Hunter 
 
 
 98 
 
 V. Lawrence 
 
 
 225 
 
 V. Marlboro' 
 
 
 137 
 
 V. Smirall 
 
 
 219, 221 
 
 V. Siembridge 
 
 
 112, 117 
 
 Hunter's Will 
 
 
 182 
 
 Huntington v. Huntington 
 
 
 621 
 
 V. Jones 
 
 
 827 « 
 
 Huntley v. Buckner 
 
 
 602 aa 
 
 V. benny 
 
 
 166 
 
 Huntly V. Huntly 38, 95 
 
 240, 
 
 674, 863 
 
 Ilunton V. Davies 
 
 
 869 
 
 Hurd V. Silsbee 
 
 
 592 
 
 Hurlburt v. Durant 
 
 
 918 
 
 Hurley, Ex parte 
 
 
 780 
 
 Hurst, In re 
 
 440, 
 
 465, 568 
 
 V. McNeil 
 
 77 
 
 299, 301 
 
 V. Wilson 
 
 
 358 
 
 Hurt V. Long 
 
 
 52 
 
 Husband v. Davis 
 
 
 412 
 
 Pollard 
 
 
 111 
 
 Huskisson v. Bridge 
 
 
 112, 115 
 
 Hussey, Ex parte 
 
 
 282 
 
 V. Castle 
 
 
 122 
 
 V. Markham 
 
 
 271, 503 
 
 Husted V. Thomson 
 
 
 928 
 
 Huston V. Cassidy 
 
 
 205 
 
 Hutcheson v. Hammond 160, 
 
 476, 
 
 480, 574, 
 915 
 
 Hutcbings v. Smith 
 
 
 641 
 
 Hutchinsv. Baldwin 
 
 
 499 
 
 V. Colby 
 
 
 678 
 
 V. Heywood 142, 165, 
 
 298, 
 
 299, 301, 
 305 
 
 V. Lee 82, 86 
 
 , 151 
 
 162, 226 
 
 V. State Bank 
 
 
 814 
 
 V. Van Vechten 
 
 
 82 
 
 Hutchinson v. Brown 
 
 
 175, 191 
 
 V. Hutchinson 127 
 
 162 
 
 , 256, 258 
 
 V. Lord 
 
 
 590 
 
 V. Morritt 
 
 
 427 
 
 V. Patrick 
 
 
 239 
 
 V. Reid 
 
 
 877
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Hutchinson r. Tindall 
 
 V. Tottenham 
 
 V. Townsend 
 
 Underwood 
 Ilutt V. I'letcher 
 Ilutton V. Anuan 
 
 t<. l)UL-y 
 
 r. Siiiipsoa 
 
 r. W'eeins 
 Huxley v. Kice 
 Huvler i'. Kingslaad 
 Hyde v. Price 
 
 V. Warren 
 
 r. W'ason 
 
 V. Woods 
 Hydeii r. Hyden 
 Hyltou V. Hylton 
 Hyman v. Devereux 
 Hyndiiian v. Hyndman 
 Hyiisliaw c. Morpeth 
 Hyslop V. Clarke 
 
 76, 79, 82, 85, IG'2, 
 18y, I'Jl 
 
 asu 
 
 882 
 
 C80 
 
 80'J 
 
 457 
 
 672, 673 
 
 871 
 
 476, 915 
 
 IG'J 
 
 766 
 
 672, 674 
 
 602 c, C02 (J, 60-2 /( 
 
 'J 20 
 
 386 a 
 
 137, 4!)8 
 
 195, 200, 851 
 
 602 (/, 602 ee 
 
 602 y 
 
 700 
 
 592 
 
 lasigi V. Chicago, &c. R. Co 
 Iddings V. liruea 
 Ide V. Pierce 
 Idle V. Cook 
 Igleliart v. Armiger 
 Ihmsen's Appeal 
 lies V. Martin 
 liniinster School, In re 
 Imboden v. Atkinson 
 Imlav V. Huutinirtou 
 
 900 
 
 199, 428, 853 
 
 82 
 
 312 
 
 234, 238 
 
 459, 460, 469 
 
 770 
 
 733 
 
 1!)!} 
 
 359, 365, 655, 660 
 
 Imperial Mer. Cred. Ass'n v. Coleman 20 
 Inches v. Hill 920 
 
 Incliiquin i'. French 86, 93, 566 
 
 Incledon i'. Northcote 616, 633 
 
 Incorporated Society v. Price 724, 729 
 
 V. Richards 694, 733, 745 
 
 Independence Church v. Reorganized 
 
 Church 709 
 
 Indiana, &c. K. Co. v. Swannell 166, 790 
 
 Indianapolis v. Grand Master 705, 710, 748 
 
 Ingalls V. Ferguson 656 
 
 Inge, Ex parte 743 
 
 V. Forrester 651 
 
 Ingersoll v. Cooper 330 
 
 IngersoU's Estate 448 
 
 Ingham v. Burnell 75 
 
 Ingle f. Partridge 402, 443, 445, 827 
 
 Ingleby. &c. Ins. Co., In re 339 
 
 Inglefield v. Coghlan 648 
 
 Inglis V. Sailors' Snug Harbor 46, 47, 709, 
 
 722, 730, 731, 736, 748 
 
 Ingraham r. Baldwin 33 
 
 Ingraham 472, 709 
 
 I'. Meade 251 
 
 r. Wheeler 592 
 
 Ingham v. Kirkpatrick 900, 918 
 
 Inioes r. American Exchange Bank 592 
 
 yn re Allen 918 
 
 " " Baker 918 
 
 " " Brewer 476 n 
 
 " " Cavin v. Gleason 828 
 
 " " Gerrv 546 
 
 " " Hawfev 121 
 
 " " Holland 275 
 
 In re Jackson 
 " " Jones 
 " " Martyn 
 " " Mason 
 " " Nash 
 " " Watson 
 Inlow f. Christy 
 Insurance Co. r. Smitlv 
 Inwood r. 'J'wyne 
 lorr f. Hodges 
 Ips. Manuf. Co. v. Story 
 Irljy r. Irby 
 Iredell V. Langston 
 Ireland v. Geraghty 
 Iritk V. Clement 
 Irish I'. Antioch College 
 Irnliam v. Child 
 Irvine v. Angus 
 
 V. Campbell 
 
 V. Dunham 
 
 V. Irvine 
 
 V. Kirkpatrick 
 
 I'. Robertson 
 
 V. Sullivan 
 Irving V. De Kay 
 
 r. Irving 
 Irwin V. Keen 
 
 V. Patchen 
 
 V. Reeves Pulley Co. 
 
 V. Rogers 
 Irwin's Appeal 
 Isaac V. Defriez 
 
 r. Gonipertz 
 
 r. Worstencroft 
 Isaacs, In re 
 
 r. Weatherstone 
 Isabella Denby, In re 
 Isbell's Estate 
 Isham r. Delaware, &c. R. 
 
 V. Post 
 Isherwood v. Oldknow 
 Ithell t'. Beane 
 Iverson v. Saulsbury 
 Ives V. AUyn 
 
 V. Davenport 
 Ivory r. Bums 
 Ivy V. Gilbert 
 Izod V. Izod 
 
 Ixxxv 
 
 918 
 552 
 275 
 918 
 275 
 275 
 865 
 330 
 476, 605, 915 
 311 
 266, 440 
 474 
 915 
 99, 732 
 147 
 861 
 
 76, 226 
 554 
 232 
 275 
 
 33 
 
 173, 180 
 
 228 
 
 112. 152 
 
 894, 903 a 
 
 476 a, 920 
 
 590, 600 
 
 451 
 
 44 
 
 900 
 
 416 
 
 256, 699 
 
 718 
 
 554 
 
 448 
 
 824 
 
 272 
 
 705 
 
 R. Co. 771 
 
 225 
 
 529 
 
 367, 795, 796 
 
 815 c, 820 a, 850 
 
 93 
 
 786 a 
 
 77, 312 
 581, 597 
 249, 255 
 
 J. 
 
 Jackman v. Delafield 
 
 V. Hallock 
 
 V. Ringland 
 Jacks V. The State 
 Jackson r. Bateraan 
 
 V. Billinger 
 
 r. Blount 
 
 f. Bowen 
 
 r. Brown 
 
 V. Burr 
 
 I'. Burtes 
 
 V. Cadwell 
 
 V. Calden 
 
 V. Cary 
 
 V. Cator 
 
 V. Clark 
 
 V. Cleveland 
 
 I'. Cornell 
 
 500 
 
 238 
 
 126, 134, 135 
 
 813 a 
 
 132 
 
 380 
 
 602 d 
 
 60266 
 
 754 
 
 765 
 
 499 
 
 162, 221, 299 
 
 602 r 
 
 299 
 
 226 
 
 602 t, 602 «, 602 an 
 
 162 
 
 509
 
 Ixxxvi 
 
 Jackson v. Delancy 
 V. Dunsbagh 
 V, Duttoa 
 V. Feller 
 V. Ferris 
 V. Fish 
 V. Forrest 
 V. Garnsey 
 V. Given 
 V. Hampton 
 V. Hartwell 
 V. Haworth 
 V. Hobhouse 
 V. Hurlack 
 V. Hj'de 
 
 INDEX TO GASES CITED. 
 [References are to sections.] 
 
 336 
 
 2S)y 
 
 105 
 
 139, 144 
 
 499 
 
 298, 299, 312 
 
 142 
 
 162 
 
 499 
 
 602/ 
 
 42, 43, 44 
 
 654 
 
 670 
 
 152 
 
 166 
 
 V. Jackson 136, 371, 606, 612, 861, 918 
 
 V. Jansen 783, 785 
 
 V. Leek 222 
 
 V. Lignon 783 
 
 r. Matsdorf 126, 143 
 
 V. Mills 126 
 
 V. Moore 82, 83, 130, 133, 349, 351 
 
 V. Morse 126 
 
 V. Myers 299 
 
 V. Parker 691 
 
 V, Phillips 690, 694, 697, 700. 701, 
 
 705, 709, 710, 715, 719, 724, 728, 748 
 
 V. Pierce 349 
 
 r. Pool 815 b 
 
 V. Potters 500 
 
 V. Robins 315 
 
 V. Root 299 
 
 V Rowe 219 
 
 V. Sackett 866 
 
 V. Schauber 308, 765 
 
 V. Sharp 222 
 
 V. Sternberg 126 
 
 V. Sublett 633 
 
 V. Von Zedlitz 827 a 
 
 V. Welch 196, 869 
 
 V. West 660 
 
 V. Williams 780 
 
 V. Winslow 222 
 
 V. Wood 139 
 
 V. Woods 126 
 
 V. Woolly 474 
 
 Jackson's Case 828 
 
 Jacksonville Nat. Bank v. Beesley 137 
 
 Jacob V. Lucas 414, 438, 505, 848, 884 
 
 Jacobs V. Amyatt 634, 636, 649 
 
 V. Lake 231 
 
 V. Pou 863 
 
 V. Ryland 263 
 
 Jacomb v. Harwood 225 
 
 Jacot I'. Corbett 592 
 
 V. Emmett 463, 468 
 
 Jacques v. Hall 81 
 
 r. Swasey 145 
 
 Jagger v. Jagger 394 
 
 Jago V. Jago 264 
 
 Jail V. Mills 248 
 
 James, Ex parte 197, 907 
 
 James, Jn re 528 
 
 V. Allen 159, 711, 712 
 
 V. Bird 235 
 
 V. Cowing 215 
 
 V. Dean 195, 538 
 
 V. Everly 685 
 
 V. FrearsoQ 261, 262, 267, 419 
 
 James v. Gibbs 
 
 V. Greaves 
 
 V. Holmes 
 
 V. James 
 
 V. Jolinson 
 
 V. Kerr 
 
 V. May rant 
 
 V. Morey 
 
 V. Morgan 
 
 V. Smith 
 James's Appeal 
 Jameson v. Shelly 
 
 V. Smith 
 Jamison v. Brady 
 
 V. Lindsay 
 Jane v. Kennedy 
 Janes v. Falk 
 
 V. Throckmorton 
 Janey v. Latane 
 Jansen v. Ostrander 
 January v. Poyntz 
 
 602 ee, 627, 642 
 
 171 
 
 127, 210 
 
 141, 195 
 
 347 
 
 188, 189, 203 
 
 601 
 
 347 
 
 187 
 
 206 
 
 262 
 
 463, 468 
 
 308 
 
 51, 277, 647, 648 
 
 891 
 
 768 
 
 163 
 
 863 
 
 748 
 
 43 
 
 468 
 
 Jaques v. Methodist Church 667 
 
 Jaquith V. Mass. Bap. Convention 145 
 
 Jarmon v. Wilkinson 660 
 
 Jarnagan v. Conway 254 
 
 Jarvis v. Duke 171 
 
 V. Prentice 648 
 
 Jasper v. Howard 651 
 
 Jaudon v. National City Bank 814 
 
 Jay V. Long Island R. R. 684 
 
 Jaycox V. Smith 223 
 
 Jeaffreson's Trusts, In re 256 
 
 Jeans, In re 371 
 
 V. Cooke 147 
 
 Jecko V. Lansing 251 
 
 Jee V. Audley 385 
 
 V. Thurlow 372 
 
 JefEeries v. Harrison 892 
 
 Jefferson v. Tyrer 498 
 
 Jeffersonville Assoc v. Fisher 602 v 
 
 Jeffervs v. Jefferys 97,107,108,111,162,367 
 
 V. Marshall 900 
 
 Jeffreys v. Small 136 
 
 Jeffries v. Lawson 426 
 
 Jemmit v. Verrel 705, 712 
 
 Jencks v. Alexander 142, 144, 149, 602 1, 
 
 602 0, 602 2', 602 s, 602 x 
 
 Jenckes v. Cook 215 
 
 Jenison v. Groves 126, 137 
 
 Jenkins, Ex parte 17 
 
 Jenkins, In re 639, 642 
 
 V. Doolittle 468 
 
 V. Eldredge 81, 173, 181, 206, 226, 918 
 
 V. Fickling 432 
 
 V. Frink 126, 127, 129 
 
 V. Hammerschlag 274, 860 
 
 V. Hiles 597, 802 
 
 V. Jenkins 314 
 
 V. Jenkins Uni. 159 
 
 V. Jones 782, 816 
 
 V. Lester 70 
 
 V. Milford 329 
 
 V. Pye 188, 201 
 
 V. Robertson 260, 847, 876 
 
 V. Row 761 
 
 V. Walter 463 
 
 V. Whyte 918 
 
 Jenks V. Backhouse 343 
 
 Jenner v. Hooper 739
 
 INDEX TO CASES CITED. 
 [Beferencea are to sections.] 
 
 Ixxxvii 
 
 Jennesi v. Howard 
 Jennev v. Mackintosh 
 Jeiiuiiif's V. Broughton 
 
 V. Davis 
 
 V. Moore 
 
 V. Selleck 
 
 V. Sbacklett 
 
 V. Sturdevant 
 Jennison v. llapgood 
 Jenny v. Gray 
 Jenour v. Junour 
 Jernegan v. liaxter 
 Jerome v. Holini 
 Jerrard t'. Saunders 
 Jurvis V. Woiferstau 
 Jervoise v. Duke 
 
 I'JI 
 
 72 
 
 230 
 
 262, 639, 078 
 
 217 
 
 144, 101 
 
 138, 141 
 
 5G8 
 
 195, 205 
 
 676, G78, 681 
 
 903 a 
 
 630 
 
 171 
 
 218 
 
 485, 910, 932 
 
 511, 615 
 
 V. Northumberland 357, 359, 360, 366, 
 
 372, 390 
 
 t). Silk 614, (i 1 5 
 
 Jesse V. Uarnett 884 
 
 Jessup r. Ilulse 590 
 
 Jesus' College v. Bloom 871 
 
 Jesus' College Case 700 
 
 Jevon V. Bush 17, 54, 482 
 
 Jewell V. Clay 147 
 
 Jewett, Ex parte 610 
 
 V. Davis 685 
 
 V. Iowa Land Co. 223 
 
 V. Miller 195, 205 
 
 V. Palmer 221 
 
 V. Tucker 873 
 
 V. Woodward 596, 894, 918 
 
 V. Yardlev 44 
 
 Jewson V. Moiilson 239, 629, 632, 633, 636, 
 
 641 
 
 Jobson, In re 622 
 
 V. Palmer 441 
 
 Jochumsen r. Suff. Sav. Bank 929 
 
 Jodrell r. Jodrell 32, 118, 185. 620, 672 
 
 Joel r. Mills 248, 388, 555 
 
 John r. Battle 127 
 
 V. Bennett 197 
 
 V. Smith 700, 720 
 
 John V. Farwell Co. v. Sweetzer 242 
 
 Johnes v. Loekhart 648, 649 
 
 Johns V. Herbert 465 
 
 V. Johns 511 a, 764, 820 n 
 
 V. Sertreant 779 
 
 John's Will, Jn re 700, 720 
 
 Johnson, Ex parte, 457 
 
 Johnson, fn re 511 r 
 
 t'. Aston 826 
 
 V. Ball 93 
 
 V. Barber 427 
 
 V. Bcnttie 603 
 
 V. Bennett 195, 205 
 
 r. Billups 117 
 
 r. Blackman 195 
 
 V. Bridgewater Co. 545, 550 
 
 V. Calnan 225 
 
 V. Cary 301 
 
 V. Cawthorn 239 
 
 V. Chisson 680 
 
 V. Clark 602 d 
 
 V. Clarkson 93, 160, 715 
 
 t>. Currin 380 
 
 V. Deloney 82 
 
 V. Dorsev 602 x, 782 
 
 r. Dougherty 126, 137 
 
 Johnson v. Eason 602 o, 602 q, 602 u, 602a;, 
 
 602 te 
 
 V Fesemeyer 202 
 
 V. Kreeth 671 
 
 V. Gallagher 658, 659, 663 
 
 V. Giles 166 
 
 V. Glasscock 182 
 
 V. <jos8 451 
 
 I'. Harvey 591 
 
 V. Henry 602 ee 
 
 V. Humphrey 863 
 V. Johnson 131, 144, 160, 200, 225, 299, 
 421, 449, 511 a, 540, 541, 544, 545, 
 639,041, 729,851, 921 
 
 V. Kelly 160 
 V. Kennelt 597, 795, 796, 801, 802 
 
 V. Krassiu 126, 226 
 
 I'. Lawrence 918 
 
 V. Leman 907 
 
 V. Lewis 847 
 
 V. Longmire 748 
 
 V. Malcorab 585 
 
 t'. Matsdorf 146, 147 
 
 V. Mavne 748 
 
 V. Medlicott 191 
 
 V. Milksopp 564 
 
 V. Miller 471 
 
 V. Moore 551 
 V. Newton 443, 446, 462, 463 
 
 r. Prairie 860 
 
 V. Prendergast 462 
 
 V. Quarles 126, 139 
 
 V. Richardson 137 
 
 V. Kichev 847 
 
 V. Roland 259 
 
 V. Ronald 79 
 
 V. Rowlands 112 
 
 V. Riinyan 677 
 
 I'. Simpson 275 
 
 V. Sirmans 815 c 
 
 V. Smith 34, 855, 863 
 
 V. Stanton 511 c 
 
 V. Swire 845 
 
 V. Telford 910 
 
 V. Thweatt 590 
 
 V. Turner 602 s, 602 bb 
 
 V. Vail 678 
 
 r. Van Wyck 202 
 
 V. Ward 122 
 
 V. Webster 347. 348 
 
 I'. Williams 602y, 602ee 
 
 Johnson's Appeal 262, 459, 817 
 
 Johnston, In re 373 
 
 V. Eason 771, 787 
 
 V. Johnston 679 
 
 V. Knight 511 c 
 
 V. McCain 803 
 
 V. Spicer 122 
 
 r. Swan 704, 705, 712 
 
 V. Todd 903 a 
 
 Johnstone r. Baker 773 
 
 V. Browne 658 
 
 V. Lumb 668 
 
 Joice V. Tavlor 171 
 
 Joliffe, Ex parte 929 
 
 V. East 903 a 
 
 V. JoUand 4-32 
 
 JoUands r. Burdett 670, 071 
 Jones, In re 280, 401, 406, 929
 
 Ixxxviii 
 
 INDEX TO CASES CITED. 
 
 [References are to sections.] 
 
 Jones V. Atchison, &c. R. Co. 
 V. Bradley 
 
 liush 
 V. Clifton 
 V. Cole 
 V. Dawson 
 V. Dexter 
 V. Dougherty 
 V. Elkins 
 V. Foote 
 V. Foxall 
 V. Fulghum 
 V. tiediles 
 V. Gibbons 
 V. Goodcbild 
 V. Graham 
 V. Greatwood 
 V. Green 
 V. Habersham 
 V. Harris 
 V. Henderson 
 V. Higgins 
 V. Holladay 
 V. Home S. Bank 
 V. Hughey 
 V. Jones 
 
 466 
 
 157 
 
 301 
 
 104 
 
 330 
 
 552, 554, 602 v, 910, 913 
 
 430 
 
 275, 818 
 
 127 
 
 257 
 
 468, 470, 471 
 
 276 a 
 
 72 
 438, 633 
 157, 434 
 129 
 117 
 730 
 741 
 659, 602 
 803 
 365, 849 
 790 
 805 
 133 
 218, 248, 275, 281, 330, 400, 
 580, 766, 876 
 Julian 457 
 
 Kearney 170, 196 
 
 Langton 301 
 
 Lewis 407, 441, 443, 457, 520, 900, 
 901, 914 
 Lock 97, 99 
 
 Llovd 82, 195, 851 
 
 Lord Saye and Seale 301, 305, 308, 
 310 
 
 , Macrgs 
 . McKee 
 , McPhillips 
 . Miller 
 , Mitchell 
 . Moore 
 , Morgan 
 , Morley 
 , Morrall 
 . Nabbe 
 
 Neale 
 
 Newell 
 
 Obincham 
 , Parsons 
 , Powell 
 , Powles 
 , Price 
 , Reeder 
 , Ricketts 
 
 Roberts 
 . Salter 
 , Scott 
 , Selby 
 , Seligman 
 
 Shaddock 
 , Sherrard 
 , Slaughter 
 , Slubey 
 , Smith 
 , Stanlev 
 , Stocke'tt 
 , Strong 
 , Suffolk 
 
 397, 584 
 
 181 
 
 275 
 
 380 
 
 160 
 
 82 
 
 347, 358, 359 
 
 108 
 
 468 
 
 86 
 
 602 3 
 
 171 
 
 95, 100, 103, 109 
 
 803 
 
 474, 538, 913 
 
 218, 219 
 
 492, 505, 597, 795 
 
 212 
 
 188 
 
 203 
 
 652, 653, 671 
 
 558, 559, 601 
 
 569 
 
 762 
 
 217, 334, 828 
 
 554 
 
 133 
 
 82, 85 
 
 428, 814 
 
 421 
 
 268,274,280,901,918 
 
 330 
 
 518 
 
 Jones V. Torin 
 
 V. Tripp 
 
 V. Tucker 
 
 V. Turberville 
 
 V. Ward 
 
 V. Waste 
 
 V. Whitebread 
 
 V. Williams 697, 
 
 V. Wilson 
 
 V. Winwood 
 
 V. Zollicoffer 
 Jones's Appeal 404,415,416, 
 
 Jones's Case 
 Joor V. Hodges 
 
 V. Williams 
 Joralemon v. Van Riper 
 Jordan, Ex parte 
 
 V. Cheney 
 
 V. Holkam 
 
 V. Hudson 
 
 V. Jordan 
 
 V. IMoney 
 
 V. Roach 
 Jorden v. Morey 
 Jordon v. Hunt 
 Jortin, Ex parte 
 Josling V. Karr 
 Josseh-n v. Josselyn 
 Jouffret V. Loppin 
 Jourolmon v. Massengill 
 Jowitt V. Lewis 
 Joy, Re 
 
 V. Campbell 404, 419, 
 
 V. J. & M. Plank R. Co. 
 Joyce V. Gunnels 
 
 17. Hutton 
 
 V. Joyce 
 Joyner v. Conyers 
 Jubber v. Jubber 
 Judah V. Judd 
 Judd V. Dike 
 
 V. Haseley 
 
 V. Moseley 
 Judge V. Booze 
 
 V. Jackson 
 
 V. Mathes 
 
 V. Pfaff 
 
 V. Wilkins 
 Judice V. Prevost 
 Judkin's Trusts, In re 
 Judson V. Corcoran 
 
 V. Gibbons 259, 
 
 V. National City Bank 
 Juler V. Juler 
 Julian V. Reynolds 
 Jull V. Jacobs 
 Junction Railw. v. Ruggles 
 Justices V. Haygood 
 Justin V. Wynne 
 Juvenal v. Jackson 
 Juzan f. Toulmin 
 
 Kahn v. Chapin 
 
 V. Gunherts 
 
 Kampf V. Jones 
 
 248, 250, 251 
 
 209 
 
 511c 
 
 866 
 
 468 
 
 672 
 
 591 
 
 704, 724, 814 
 
 82, 83 
 
 784 
 
 218 
 
 417,418,420, 
 
 421, 501 
 918 
 303 
 
 610, 828 
 920 
 449 
 
 243, 828 
 516 
 238 
 843 
 208 
 
 380, 392 
 870 
 468 
 725 
 881 
 615 
 568 
 312, 815 a 
 754 
 705 
 421, 828, 837 
 754 
 
 282, 540 
 108 
 
 277, 287 
 810 
 112, 117, 620 
 438 
 468 
 137 
 226 
 780 
 918 
 453 
 
 226, 764 
 187 
 264 
 615 
 438 
 261, 262, 270 
 225 
 94 
 
 195, 205 
 511a 
 
 754, 758 
 
 891 
 
 829 
 
 221 
 
 175, 187, 230 
 
 195, 869 
 
 212 
 
 380, 390
 
 INDEX TO CASES CITED. 
 [Referencea are to eections.] 
 
 Ixxxix 
 
 Kane, Tn re 
 
 V. Hloodgood 
 
 r. Kane 
 Kane's Appeal 
 Kane County v. Ilerringtou 
 Kantrowitz v. Prater 
 Karr v. Karr 
 
 t'. W'aslibura 
 Kates r. liurton 
 Kator r. Pembroke 
 Katzenber^'er v. Aberdeen 
 Kaiiffelt r. Uower 
 Kaufman v. Crawford 
 Kavanagh, In re 
 Kay, In re 
 
 V. Crook 
 
 V. States 
 
 V. Smith 
 Kaye, In re 
 
 V. Powell 
 Kayser r. Maughan 
 Kead}' r. White 
 Kean v. Kean 
 
 C12 
 228, 855, 863, 804 
 471 
 277 
 227, 240 (I 
 080 
 
 471, 472 
 
 70 
 
 507 
 
 828 
 
 749 
 
 232 
 
 458, 607, 836, 842 
 
 400 
 
 848 
 
 208 
 
 IfiU 
 
 851 
 
 51, 275 
 
 549 
 
 166, 226 
 122 
 248 
 
 299, 
 
 Keane v. Kobarts 
 
 Kearnan v. Fitzsimon 
 Kearney r. Kearney 
 Kearsley i'. Woodcock 
 Keates v. Burton 
 
 V. Cadogan 
 Keating v. Keating 
 
 V. Stevenson 
 Keaton v. Cobb 
 
 V. Greenwood 
 
 V. McGwier 
 
 V. Scott 
 Kebble, Ex parte 
 Keble v. Thompson 
 Kedian t'. Hoyt 
 Kee r. Kee 
 
 V. Yasser 
 Keech t". Sanford 
 Keefer v. Schwartz 
 Keeler v. Keeler 
 Keen v. Walbank 
 Keene v. Deardon 
 
 246, 403, 789, 809, 810, 
 811, 907 
 200 
 470 a 
 386 b, 388, 555 
 508, 510 
 
 173, 179 
 
 709 
 
 437 a 
 
 132, 144 
 
 863 
 
 804 
 
 680 
 
 616, 019 
 
 419, 453 
 
 437 a 
 
 918 
 
 064 
 
 196, 538 
 
 511c 
 
 894 
 
 315 
 
 305, 307, 309, 315, 
 
 349, 353, 354 
 
 282 
 
 Keene's Appeal 
 
 Keep V. Sanderson 590 
 
 Kegerreis r. Lutz 120 
 
 Keilev v. Keily 511 a 
 
 Keily r. Fowler 379 
 
 V. Monck 515 
 
 Keim r. Lindley 408 
 
 Keissflbrock v'. Livingston 220 
 
 Keister v. Scott 794 
 
 Keith V. Horner 238 
 
 V. Miller 91, 133 
 
 V. Wheeler 347 
 
 Keith & P. Coal Co. v. Bingham 730 
 
 Kekewich v. Manning 68, 98, 101 
 
 102,104,105, 111,438 
 
 Kellaway v. Johnson 460, 467, 509 
 
 847, 849 
 
 Keller v. Ashford 200 
 
 r. Auble 211 
 
 V. Nutz 241 
 
 V. Ruiz 680 
 
 r. Strong 79 
 
 Keilett r. Kellett 151 
 
 r. liathbun 463, 4C8 
 
 Kelley v. Babcock 82, 594 
 
 t''. Boetlcher 106, 855 
 
 V. Jenness 126, 130, 132, 246 a 
 
 Kellogg V. Carrico 774 
 
 V. Ilale 300 
 
 V. Slauson 590 
 
 V. Western El. Co. 805 
 
 V. Wood 126 
 
 Kellogg's Case 918 
 
 Kelliim r. Smith 215 
 
 Kelly V. Browning 166 
 
 V. Drew 678 
 
 V. Johnson 126, 133 
 
 f. Karsner 76, 143 
 
 V Lank 591 
 
 V. McNeill 133 
 
 V. Nichols 83, 706, 727 
 
 I'. Kichardson 560 
 
 V. Scott 336 
 
 KeJsal V. Bennett 219 
 
 Kelsey v. Snyder 139 
 
 V. Western 562 
 
 Kelso V. Kelso 142 
 
 V. Tabor 660 
 
 Kemmis v. Kemmis 615 
 
 Kemp v. Burn 900 
 
 V. Burr 821 
 
 V. Kemp 8, 251, 507, 511, 570 
 
 V. McPherson 570, 796 
 
 Kempf I'. James 888 
 
 Kempton v. Packman 190 
 
 Kenaday r. Edwards 277, 770 
 
 Kenan r. Hall 471 
 
 V. Paul 918 
 
 Kendall v. Gleason 920 
 
 V. Granger 159, 711 
 
 V. Mann 126, 133 
 
 V. Micfeild 13 
 
 V. New England, &c. 918 
 
 Kenge v. Delavall 662 
 
 Keniston v. Mavhew 82 
 
 Kennedv v. Baker 127, 828, 865 
 
 V. r)alev 122, 216, 433, 828, 830, 863 
 
 V. Fury 17, 328 
 
 V. Gramling 315 
 
 I'. Hammond 602 Jf 
 
 V. Hoy 99 
 
 V. Keating 129, 135 
 
 t'. Kennedy 189, 226, 805 
 
 r. Kingston 251, 255 
 
 V. JlcCloskey 127 
 
 V. Strong 463 
 
 V. Turnley 293 
 
 V. Ware 109, 111 
 
 r. Winn 259, 261, 865 
 
 Keiua-dv's Appeal 912 
 
 Kennell' v. Abbott 182 
 
 Kenniv r. I'dail 631, 632, 636 
 
 Ken rick j'. Beauclerk 305, 308 
 
 Kensington v. Bouverie 554 
 
 r. i)olland 647, 649, 651 
 
 Kenson's Case 739 
 
 Kent, Kx parte 617 
 
 r. Chalfant 197 
 
 f. Dunham 710 
 
 r. (Jerhard 232 
 
 V. Hutchins 900
 
 xc 
 
 INDEX TO CASES CITED. 
 [References are to aections.] 
 
 870 
 
 227 
 
 252, 511 b 
 
 467, 670 
 609 
 364 
 658 
 324 
 654 
 
 787, 874 
 58 
 
 624, 672 
 471 
 
 151, 158 
 
 238 
 
 38, 231 
 
 195, 206, 380 
 
 421 
 
 403 
 
 248, 473 
 421 
 
 Kent V. Jackson 
 V. Mehaffey 
 V. Morrison 
 V. Plumb 
 Kentish v. Kentish 
 
 V. Newman 
 Kenyon v. Farris 
 
 V. Kenj'on 
 Keogh V. Cathcart 
 Keen V. Magawley 
 Kep V. Ban It of New York 
 Ker I'. Buxton 
 
 V. Snead 
 Kerlin v. Campbell 
 Kern v. Hazlerigg 
 Kerr t'. Day 
 
 V. Dungannon 
 V. Kirkpatrick 
 t". Laird 
 V. Verner 
 V. Water 
 Kerrigan i-. Tabb 
 Kerrison v. Stewart 
 Kershaw v. Snowden 
 Ketchum v. Ketchum 
 
 V. Mobile & Ohio R. Co. 
 V. Packer 
 Ketrick i'. Barnsly 
 Kettle V. Hammond 
 Kettleby r. Atwood 
 Kevan v. Branch 
 Key V. Hughes 
 Keyes v. Carleton 
 
 V. Wood 
 Keyser's Appeal 
 Kiah V. Grenier 
 Kibbee v. Hamilton Ins. Co. 
 Kibbett v. Lee 
 Kiddill V. Farnell 
 Kidney v. Coussmaker 556, 570, 867, 872 
 Kightley v. Kightley 569 
 
 Kilbee v. Sneyd 402, 403, 422, 424, 
 
 445, 851, 914 
 Kilboum v. Sunderland 
 Kildare v. Eustace 
 Kilford V. Blaney 
 Kilgore, Ex parte 
 Killam v. Allen 
 Killar v. Beclor 
 Killeran v. Brown 
 Killett V. Killett 
 Killick, Ex parte 
 
 V. Flexney 
 Kilpatrick r. Johnson 
 
 V. Kilpatrick 
 Kilpin r. Kilpin 
 Kilroy v. Wood 
 Kil vert's Trusts, In re 
 Kilvington i-. Gray 
 Kimball i'. Ives 
 V. Johnson 
 i>. Morton 
 
 t'. Reading — : ---, 
 
 V. Universalist Society in Sweden 748 
 Kime v. Welpitt 616 
 
 Kimm v. Weippert 680 
 
 Kimmel v. McRight 144, 149 
 
 V. Smith 171 
 
 Kinard v. Hiers 25, 215 
 
 715 
 873 
 122 
 891 
 275 
 875 
 182 
 587 
 307 
 
 591, 592 
 
 443 
 
 104 
 
 602 n 
 
 304 
 
 371, 391 
 
 172 
 
 5116 
 
 100, 929 
 
 801 
 
 40, 71 
 
 571 
 
 204 
 
 313, 393, 398 
 
 639 
 
 226 
 
 151, 152, 154 
 
 048 
 
 196, 538 
 
 396, 398, 738 
 
 239 
 
 75, 77, 86, 144, 146, 147 
 815 a 
 714 
 550 
 863 
 396, 398, 738 
 86 
 440. 459, 465 
 
 Kincaid v. Thompson 
 Kincaird's Trusts, In re 
 Kincell v. Feldman 
 Kinch V. Ward 
 Kinchant v. Kinchant 
 Kinder t- . Miller 
 
 V. Shaw 
 King, Re 
 
 V. Akerman 
 
 V. Bellord 
 
 V. Boston 
 
 V. Bushnel 
 
 V Carmichael 
 
 V. Coggan 
 
 V. Cotton 
 
 V. Cushnian 
 
 V. Denison 
 
 V. Donnelly 
 
 V. Duntz 
 
 V. Eggington 
 
 V. Hake 
 
 V. Hamlet 
 
 V. Holland 
 
 v. Jenkins 
 
 V. King 
 
 V. Lawrence 
 
 V. Leach 
 
 V. Lucas 
 
 V. Merchants' Exchange Co 
 
 129, 
 
 54, 151, 
 
 138, 240, 
 
 602 
 
 441, 827 a, 
 
 Mildmay 
 
 Mitchell 
 
 Morrison 
 
 MuUins 
 
 Pardee 
 
 Parker 312, 320 
 
 Phillips 
 
 Remington 
 
 Roe 
 
 Rundle 
 
 Savery 
 
 Stone 
 
 Strong 
 , St. Catharine's Hall 
 , Talbott 441, 454, 455, 
 
 I'. Taylor 
 
 V. Townshend 
 
 V. Whitely 
 
 V. Whiton 
 
 V. Wilson 
 
 V. Wise 
 
 V. Woodhull 
 King's Mortgage 
 Kingdom v. Bridges 
 Kingdon, In re 
 Kingham v. Lee 
 Kingland v. Rapelye 
 Kingman v. Winchell 
 Kingsbury v. Bumside 
 
 V. Powers 
 Kingston v. Lorton 
 Kinmouth v. Brigham 
 Kinnard v. Kiunurd 
 
 V. Thomjjsou 
 Kinne r. Webb 
 Kinner v. Walsh 
 Kinney v. Ensminger 
 v.'Harvey 
 
 160 
 
 245 
 633, 636 
 22G 
 297 
 201 
 137 
 243 
 901, 902 
 312 
 19.52 
 135 
 822 
 866 
 434 a 
 213 
 428, 915 
 152, 153 
 259, 280 
 X, 602 aa 
 837 
 580 
 183 
 64 
 17 
 898, 914 
 264, 343 
 343 
 658 
 299, 
 602 i 
 325 
 153 
 927 
 922 
 141 
 705, 737 
 269 
 195 
 474 
 718 
 201, 202 
 411 
 903 a 
 743 
 459, 400, 
 468 
 90S a 
 299, 351 
 307 
 709 
 434, G:)0 
 209 
 , 272, 748 
 338 
 144, 146 
 5116 
 49, 121 
 359 
 827 rt 
 82 
 200, 607 
 112, 855 
 545, 547 
 541 
 593 
 122 
 680 
 237 
 238
 
 INDEX TO CASES CITED. 
 [References &re to sectiuna.] 
 
 XCl 
 
 Kinney v. Ileatley 
 Kiiisey v. State 
 Kinsler v. Clark 
 Kinslev r. Auies 
 
 v.'ljoyd 
 Kintncr v. Jones 
 Kintzinger Estate 
 Kinzie v. Penrose 
 Kip c. Bank of New York 
 
 r. Deniston 
 Kirby v. Masly 
 
 V. Schoonmaker 
 
 V. Taylor 
 Kiricke r." IJrausbcy 
 Kirk t. Clark 
 
 r. I'uulin 
 
 V. Webb 
 Kirkbank r. Hudson 
 Kirkey v. Lacy 
 Kirkliam v. Smith 
 
 918 
 612 
 
 2a9 
 
 602 M 
 
 130 
 
 127 
 
 63'J 
 
 84 
 
 463 
 
 416, 420 
 
 900 
 
 599 
 
 851 
 
 152 
 
 874, 878 
 
 310, 048 
 
 137, 841 
 
 700 
 
 078 
 
 348 
 
 Kirk land v. Cox 312, 315, 320, 328, 520 
 
 V. Narramore 272 
 Kirknian v. IJooth 433, 454, 877, 904 
 
 Kirkpatrick v. Beauford 678 
 
 V. Davidson 86, 120 
 V. McDonald 77, 98, 127, 133, 330 
 
 V. Kogers 5"0 
 
 Kirsch r. Tozier 790 
 
 Kirwan v. Daniels 593 
 
 Kirwan's Trusts, Jn re 248 
 
 Kirwin r. Weippert 655 
 
 Kirwood v. Thompson 199 
 Kisler V. Kisler 126, 127, 134, 215 
 
 Kissam v. Anderson 122 
 
 V. Dierkes 602 £f, 784 
 
 V. Edmundson 591 
 
 Kitchen i'. Bradford 828 
 
 Kittel's Estate 800 
 
 Kittleby v. Lamb ^28 
 
 Kittredge v. Fulsome 93 
 
 Klanip I'. Klamp l-iS 
 
 Klapp V. Shurk 591, 593 
 
 Kleberg v. Bond 456 
 
 Kleiser v. Scott 238 
 
 Klepner f. Laverty -^71 
 
 Kline's Appeal 127, 144 
 
 Kline's EsUite 213 
 
 Klock t). Cronkhite 602 5 
 
 Klotz's Estate 908 
 
 Knapn v. Noyes 513 
 
 V. Smith 678, 686 
 Knatchbull v. Fearnhead 846, 848, 877, 924 
 
 V. Hallett 837 
 
 Kneeling v. Brown 569 
 
 Kneller V. Shreve 815 « 
 
 Knight V. Boughton 112, 114, 116 
 
 V. Bowyer 745, 850, 863 
 
 V. Brawneer 639 
 
 V. Cameron 514 
 
 V. Fisher 122 
 
 V. Garborough 254 
 
 V. Havnie 415 
 
 V. Hunt 212 
 V. Knight 114, 116, 237, 653, 654, 828. 
 
 V. Leak 633 
 
 V. Leary 126 
 
 V. Loomis 262, 204, 500 
 
 V. Maioribanks 199 
 V. Martin 476 a, 901, 922, 928 
 
 Knight V. Packer 
 V. Plymouth 
 V. Robinson 
 V. Selby 
 t'. Whitehead 
 
 Knight's Trust 
 
 590 
 406, 457, 465, 914 
 338 
 357 
 667 
 
 ...... 927 
 
 Kniskern v. Lutheran Churchea 733, 748 
 
 Knoch V. Van I'.ernuth 790 
 
 Knorr v. Kavmoud 858 
 
 Knott, Kx parte 218,618 
 
 V. Cottee 115, 116, 461, 468, 471, 472 
 
 898, 902, 907 
 
 V. Hill 188 
 
 Knottman v. Peyton 213 
 
 KnoufF V. Thompson 143, 149 
 
 Kuowies, In re 580 
 
 V. Knowles 891 
 
 V. McCamley 600 
 
 V. Spence 855 
 
 Knowlton v. Atkins 83 
 
 V. Bradv 453, 468 
 
 Knox V. Bigelow 891 
 
 V. Hotham 119 
 
 V. Jenks 302 
 
 V. Jones 382, 391 
 
 V. Knox 112 
 
 V. McFarran 75, 77, 82, 133, 137 
 
 V. Pickett 421, 891 
 
 Knox's Trusts, In re 900 
 
 Knuckolls V. Lea 175 
 
 Knust, J-:x parte 240, 282 
 
 Knye v. Moore 438, 877, 878 
 
 Kobarg i'. Greeder 145 
 
 Koch V. Koth 239 
 
 Koeber v. Sturgis 634 
 
 Koenig's Appeal 304, 312 
 
 Kofoed V. Gordon 202 
 
 Kopp V. Gunther 91 
 
 Korns i'. Shaffer 195 
 
 Kountze v. Kennedy 177 
 
 Kraemer v. Dustermann 206 
 
 Kraft V. Lohman 275 
 
 Kraken v. Shields 456 
 
 Kramer v. Arthur 218 
 
 Krankel v. Kraukel 104 
 
 Krauth v. Thiele 82 
 
 Kreb's Estate 305, 502 
 
 Kreider v. Boyer 640 
 
 Kreitz v. Frost 892 
 
 Krumbaar v. Burt 639, 641 
 
 Krupp V. SchoU 213, 641 
 
 Kruse r. Stephens 205 
 
 Kuhn I'. Newman 299 
 
 Kuntzleman's Trust Estate 920 
 
 Kupferman t'. McGehee 815 a, 815 66 
 
 Kuster r. Howe 344 
 
 Kutz's Appeal 803 
 
 Kvle r. Barnett 454, 404, 470, 471 
 
 V. Tait 221, 236, 237 
 
 V. Wills 79 
 
 Lacev, Ex parte 195, 197, 209, 285, 428 
 Lachlan r. Reynolds 380 
 
 Lackey's Estate 461 
 
 Lacon r. Lacon 862 
 
 Lacoste v. Splivalo 453
 
 xcu 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Lacy V. Wilson 
 
 218, 222 
 
 Lad broke, Ex parte 
 
 780 
 
 Ladbrook v. Bleaden 
 
 271 
 
 Ladd V. Chase 
 
 252, 511 a 
 
 V. Ladd 
 
 5116 
 
 Laddington v. Kine 
 
 379 
 
 Lade v. Holford 
 
 349, 350, 355, 3!>5 
 
 Lade v. Lade 
 
 12G 
 
 Lad}' Mice's Charity 
 
 724 
 
 Lady Wellesley v. Earl of Mornington 
 
 511a 
 
 Lafferty v. Farley 863 
 
 Lagow V. Badollet 232, 237, 238 
 
 Lahey v. Kortright 277, 499 
 
 Laidfaw i;. Organ 171, 180 
 
 Laing's Settlement, In re 453 
 
 Lajoye v. Prirnm 929 
 
 Lake v. Currie 511 c 
 
 V. De Lambert 48, 51, 54, 275, 282 
 
 V. Freer 82 
 
 V. Gibson 132, 136 
 
 V. Lake 150 
 
 Lakin v. S. B. M. Co. 231 
 
 Lallance v. Fisher 786 
 
 Lamar v. Pearre 856 
 
 V. Simpson 62 
 
 V. Walton 264 
 
 Lamas v. Baj'ley 135 
 
 Lamb v. Davenport 231 
 
 V. Goodwin 602 d<l 
 
 V. Lamb 162, 551 
 
 V. Lynch 386 
 
 Lamb's Appeal 464, 466 
 
 Lambe v. Orton 101, 102, 105 
 
 Lambert v. Parker 616, 619 
 
 V. Stees 124 
 
 V. Thwaites 250, 258 
 
 Lambeth Charities, In re 699 
 
 Lamerson v. Morvin 602 y 
 
 L'Amoureux v. Crosby 35 
 
 V. Van Rensselaer 526, 660 
 
 Lam pet's Case 68 
 
 Lamphear v. Buckingham 762 
 
 Lampley v. Watson 647, 666, 677, 684 
 
 Lamplugh v. Lamplugh 54, 143, 144, 146 
 
 Lanahan v. Latrobe 596 
 
 Lancashire v. Lancashire 273, 493 
 
 Lancaster Charities 278 
 
 Lancaster v. Evors 431 
 
 V. Dolan 310 a, 652, 655, 661, 768 
 
 V. Elce 
 
 V. Thornton 
 Land Credit Co. v. Fermoy 
 Landen v. Green 
 Lander v. Weston 
 Landers v. Dell 
 Landis v. Saxton 
 Landon v. Hutton 
 Lands Allotment Co., In re 
 Lane, In re 
 
 V. Colman 
 
 V. Debenham 
 
 V. Dighton 
 V, Eaton 
 V. Ewing 
 V. Lane 
 V. Page 
 V. Tidhall 
 
 593, 600 
 
 308 
 
 207, 875 
 
 894 
 
 808 
 
 382 
 
 128, 803 
 
 143, 163 
 
 803 
 
 618 
 
 918 
 
 294, 340, 414, 493, 494, 
 
 505 
 
 139, 835, 837, 839, 842 
 
 705, 730 
 
 79, 98. 100, 103 
 
 112, 147, 861 
 
 511a 
 
 602 0, 602 X, 602 ee 
 
 Lane's Appeal 
 Lanesborough i". Fox 
 
 V. Kilmaine 
 Lang V. Kopke 
 
 Langdale's Settlement Trust, In re 
 Langdon v. Astor 
 
 V. Sinison 
 Laugford v. Auger 
 
 V. Gascoyne 
 
 468 
 880 
 219 
 398 
 400 
 93 
 381, 395 
 336 
 402, 404, 419, 444, 467, 
 849 
 908, 910 
 94, 150, 157 
 226 
 433, 863 
 818 
 351, 354 
 795 
 76 
 203 
 
 V. Mahoney 
 
 Langham v. Sandford 
 
 Langley v. Brown 
 
 V. Fisher 
 
 V. Hawk 
 
 V. Sneyd 
 
 Langmead's Trusts 
 
 Langsdale v. Woollen 
 
 Langstaff v. Taylor 
 
 Langston v. Olivant 329, 417, 453, 460, 539 
 
 Langton v. Astrey 828, 829 
 
 V. Brackenburgh 614 
 
 V. Horton 68 
 
 Langworthy v. Chadwick 541 
 
 Lanier v. Brunson 918 
 
 Lanning «. Lanning 585 
 
 Lanoy v. Athol 577, 613, 614, 635 
 
 Lansdowne v. Lansdowne 134, 871 
 
 Lansing v. Lansing 262 
 
 Lanterman v. Abernathy 97 
 
 Lantry v. Lantry 134 
 
 Lantsburv v. Collier 498 
 
 Lape V. Taylor 901 
 
 Laprimaudaye v, Teissier 644 
 
 Larco v. Casaneuava 198 
 
 Large 's Case 388, 555 
 
 Larkin v. Mason 576 
 
 Larkins v. Biddle 184 
 
 V. Rhoades 132, 137 
 
 Larmon v. Knight 162, 171, 243 
 
 Larod V. Douglass 418 
 
 Larrabee v. Hascall 82 
 
 Larrow v. Beam 218 
 
 Lashmar, In re 816 a 
 
 Laskey v. Perrysburg Board, &c. 511 b 
 
 Lasley v. Lasley 275 
 
 Lassence v. Tierney 360, 511 a 
 
 Lassiter v. Dawson 627 
 
 La Terriere v. Bulmer 551 
 
 Latham v. Henderson 129 
 
 Lathrop v. Bampton 828, 835, 843 
 
 V. Baubie 276, 917 
 
 V. Gilbert 127 
 
 V. Hovt 134, 135 
 
 V. Pollard 195 
 
 V. Smalley 276, 459, 472, 900, 903, 918 
 
 V. Tracv 770 
 
 Lattimer v. "Hanson 262, 264, 268, 492 
 
 Latouch V. Lacom 593 
 
 Latouche v. Dunsany 876 
 
 Latourette v. Williams 640 
 
 Latrobe v. Baltimore 331 
 
 V. Tiernan 411, 415 
 
 Lau's Estate 145 
 
 Laughlin v. Fairbanks 438 
 
 Laurel County Court v. Trustees 343 
 
 Laurens v. Jenney 299, 306, 309 
 
 V. Lucas 795 
 
 Lauriat v. Stratton 873
 
 INDEX TO CASES CITED. 
 [Beferencea are to Bections.] 
 
 XCUl 
 
 Lavender v. Stanton 
 Laver v. Fielder 
 Law V. liarchard 
 
 V. Butler 
 
 V. Mills 
 
 V. Skinner 
 Lawes v. licnnctt 
 Lawless V. Shaw 
 I.awley v. Hooper 
 Lawrence v. Bowie 
 
 V. Cooke 
 
 V. Davis 
 
 582, GIO, 793 
 2U8 
 183 
 2'J8 
 581; 
 5'JO 
 448 
 120 
 IG!) 
 
 848, 876, 'J03 
 121 
 5'J3 
 
 V. Farmer's Loan & Trust Co. 
 
 V. I-awrenee 
 
 V. Maf,'K9 
 
 t). Smith 
 
 V. Stratton 
 
 V. Trustees, &c. 
 Lawrence's Estate 
 Lawrie v. Hanks 
 Lawry v. Mctiee 
 Laws V. Law 
 Lawson v. Campion 
 
 V. Copeland 
 
 V. Lawson 
 
 V. Morton 
 Lawton v. Ford 
 Lay V. Brown 
 
 V. Duckett 
 Laytin v. Davidson 
 Layton v. Layton 
 Lazarus v. Bryson 
 Lea V. Grundy 
 Lea's Appeal 
 Leach v. Asher 
 Leach v. Ausbacker 
 
 V. Farr 
 
 C02 c, 
 
 G02 7 
 
 75, 134 
 
 533 
 
 451 
 
 222 
 
 855 
 
 382 
 
 311 
 
 97 
 
 12G 
 
 185 
 
 900 
 
 76, 511c 
 
 324 
 
 8G3 
 
 627 
 
 812 
 
 171, 918 
 
 631, G3G 
 
 205 
 
 6G5 
 
 58G 
 
 859 a 
 
 814 
 
 104 
 
 v. Leach 112, 117, 118, 119, 195, 620 
 
 Leader v. Tierney 1"^| 
 
 Leadman v. Harris 5J1 
 
 Leahy v. Leahy ^78 
 
 Leake r. Leake l5, 321 
 
 V. Robinson 160, 383. 61fi. 022 
 
 V. Watson 329, 358,828 
 
 Leakev v. Gunter J5 
 
 Leaphart v. Commercial Bank 200 
 
 Lear v. Lepgett 388, 555 
 
 V. Tritch 137, 79y 
 
 Learned v. Welton 41'- 
 
 Learovd v. Whiteley 4.j7 
 
 Leavitt v. Beirne 508, 511, 655, GOO 
 
 V. Peel 680, 7C8 
 
 V. Wooster 562, 571, 795 
 
 Leaycraft v. Hedden 655 
 
 Leazure v. HilleRas *5 
 
 Lechniere v. Brotheridge Gob 
 
 V. Carlisle 98, 367, 858 
 
 V. Charlton 577 
 
 i^.Lavie 112,113,116 
 
 Le Coif V. Armstrong L. II. Co. 050 
 
 Ledge V. Morse 13|' 
 
 Ledlie v. Vrooman "^>" 
 
 Ledvard V. Chapin 602 j- 
 
 Lee 'v. Alston S^l 
 
 V. Balcarras •'•"' 
 
 V. Brown 476, 615, 618, 619, 624, 
 
 915 
 
 V. Delane 476 a, 923 
 
 Lee V. Egremont 632 
 
 V. Enos 34ti 
 
 V. Fernie 511 a 
 
 V. Ferris 77, 83. 93 
 
 V. Fox 127 
 
 V. Huntoon 77, 8.3 
 
 V. Kennedy 82 
 
 V. Lee 464 
 
 V. I'atten 206 
 
 V. Pennington 918 
 
 V. Prideaux 647, 648 
 
 V. Randolph 240, 280 
 
 V. San key 806 
 
 V. Simpson 253, 511 c 
 
 V. Stuart 34 
 
 I'. Tinken l'*^ 
 V. Young 276, 508, 509, 510, 511 
 
 Leech v. Leech 107, 584 
 
 Leed v. Beene 863 
 Leedham v. (Jhawmer 907, 909, 910 
 
 Leedoin v. Plymouth Railway 757 
 Leeds V. Amherst 446, 540, 869, 870 
 
 V. Munday 330, 337 
 
 V. Wakefield 493, 784 
 
 Leeds Banking Co. 654, 659 
 
 Leeke v. Bennett 541 
 
 Leeper ?'. Taylor 83 
 
 Lees V. Nuttall 206 
 
 V. Sanderson 422 
 
 Lees' Settlement Trusts, In re 295 
 
 Leferve v. Leferve "^48 
 
 Leffler v. Annstrong 260, 602 7' 
 
 Le Fort v. Delafield 245 
 
 Lefroy v. Flood 112, 116 
 
 Legiird v. Hodges 82, 122 
 
 V. Johnson 673 
 
 Legare v. Ashe 183 
 
 Legatt V. Sewell 366 
 
 Le Gendre v. Byrnes 863 
 
 Legg V. Goldwire 361 
 
 V. Legg 639 
 
 V. Mackrell 271 
 Legge V. Asgill 699, 705, 712 
 
 Lecirett v. Dubois 64, 131, 140 
 
 V. Grimmett 290, 297 
 V. Hunter 273, 281, 404, 414, 610 
 
 V. Leggett 133 
 
 V. Perkins ""O 
 
 Lech V. Legh 330 
 
 L'llerminier, In re 541 
 
 Lehman v. Lewis 13| 
 V. Rothbarth 128, 246, 468, 471, 917 
 
 Leicester r. Foxcroft 182 
 
 V. Rose 212 
 
 Leichrist's Appeal 135 
 
 Leich r. Ashburton '69 
 ^t;. Barry 411, 415, 416, 417, 421 
 
 V. Evans 803 
 
 V. Leigh 117 
 
 V. Llovd '''S 
 
 Leighton v. Leighton 245, 552 
 
 Leiper v. Hoffman 65, 126, 131 
 
 Leisenring v. Black 202 
 
 Loitchr. Wells 223,814 
 
 I.eith r. Irwin 'J"5 
 
 Leith Banking Co. v. Bell 1'9 
 
 I.e Jeune c. Budd 517 
 
 Leland v. Hayden ■ 545 
 
 Le Lievre v. Gould 1' *
 
 XCIV 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Le Maitre v. Bannister 113, 116 
 
 Le Marchant v. Le Marchant 113 
 
 Lenian v. McComas 1^20 
 
 V. Sherman 2'JG 
 
 V. Whitley 76, 83, 162, 226, 232 
 
 Lemmond v. People 160, 900 
 
 Leinoine v. Dunklin County 803 
 
 Lenaglian v. Smith 882 
 
 Lench V. Lench 127, 128, 137, 138, 836, 839 
 
 Le Neve v. Le Neve 217, 222, 223 
 
 Lengenfitter v. Ritching 210 
 
 Lennard v. Curzon 876 
 
 Lent V. Howard 452, 920 
 
 Leon, In re 56 
 
 Leonard, Re 547 
 
 V. Bell 391, 748 
 
 V. Diamond 309 
 
 V. Ford 602 b 
 
 V. Green 133, 149 
 
 V. Haworth 281 
 
 V, Leonard 185 
 
 V. Sussex 389 
 
 V. Powell 915 
 
 Le Page v. McNamara 724, 748 
 
 Le Prince v. Guillemont 592, 594 
 
 Lerow v. Wilmarth 487, 553 
 
 Leslie v. Bailie 927 
 
 V. Devonshire 159 
 
 V. Guthrie 68, 345 
 
 V. Leslie 83, 91 
 
 Lesser v. Lesser 248, 511 b 
 
 Lester v. Frazer 34 
 
 V. Garland 395 
 
 L'Estrange v. L'Estrange 69 
 
 Letch V. Hollister 159 
 
 Letcher v. Letcher 126, 132, 137 
 
 Letterstedt v. Broers 275 
 
 Leuppie v. Osborn 658 
 
 Le Vasseux v. Scratton 641 
 
 Lever v. Andrews 126 
 
 Levering v. Heighe 34 
 
 V. Levering 34 
 
 Levet V. Needham 150, 152 
 
 Levi V. Evans 133 
 
 V. Gardner 845 
 
 Levin v. Ritz 52 
 
 Levis V. Kengla 79 
 
 Levy V. Commonwealth 748 
 
 'v. Home 750 
 
 V. Levy 41, 45, 384, 716, 738, 741, 748 
 
 Lewellin v. Cobbald 213, 826 
 
 Lewes, Ee 929 
 
 r. Lewes 119, 388, 555 
 
 Lewin's Trusts, In re 633 
 
 Lewis, Fx parte 774 
 
 V. Adams 647 
 
 r. Baird 259,261 
 
 V. Beacon 559 
 
 V. Beall 299 
 
 V. Bradford 221 
 
 V. Building & Loan Ass'n 126 
 
 V. Castleman 864 
 
 V. Covillaud 238 
 
 V. Darling 570, 571 
 
 V. Duane 60 
 
 V. Hill 475 
 
 V. Hillman 202, 206 
 
 V. James 324 
 
 V. Johns 678 
 
 Lewis V. Limlley 
 V. Lewis 
 V. Madocks 
 V. McLemore 
 V. Mathews 
 V. Merritt 
 V. Nelson 
 V. Nobbs 
 V. Pead 
 V. Phillips 
 V. Price 
 V. Reed 
 V. Rees 
 V. Robinson 
 V. Scaperton 
 V. Stanley 
 V. Starke 
 V. Taylor 
 V. Thornton 
 V. Wells 
 V. Yale 
 
 166 
 
 76 
 
 122, 837, 841, 842 
 
 171 
 
 272, 337, 648, 649, 651 
 
 189 
 
 21, 71 
 
 422 
 
 190 
 
 221 
 
 639 
 
 404, 409 
 
 319 
 
 141 
 
 236 
 
 145 
 
 347 
 
 133 
 
 562 
 
 124 
 
 660 
 
 Library Company of Philadelphia v. 
 
 Williams 511 a 
 
 Liddard v. Liddard 112 
 
 Lidderdale i'. Montrose 69 
 
 Lide V. Law 186 
 
 Life Assoc, v. Siddall 265, 337, 476, 846, 
 849, 850, 853, 860, 863, 869 
 
 Liffler v. Armstrong 
 Liggett V. Wall 
 Light V. Scott 
 
 V. Zeller 
 Lignon v. Alexander 
 Like V. Bearsford 
 Liles V. Terry 
 Liley v. Hey 
 Lill V. Neafie 
 Li Hard v. Turner 
 Lillia V. Ayre 
 Linch V. Cappey 
 
 V. Thomas 
 Lincoln v. Aldrich 
 
 V. Allen 
 
 V. Newcastle 
 
 V. Winsor 
 
 V. Wright 
 Lindenberger v. Metlock 
 Lindley v. Cross 
 Lindo V. Lindo 
 Lindow v. Fleetwood 
 Lindsav v. Harrison 
 
 V. Lindsay 
 Lindsell v. Thacker 
 Lindsley v. Dodd 
 Lines r. Darden 
 
 r. Lines 
 Lingan v. Henderson 
 Lingard v. Bromley 
 Lingenfelter v. Richey 
 Lining v. Peyton 
 Link V. Link 
 Linker v. Smith 
 Linley v. Taylor 
 Linn v. Davis 
 Linsley v. Sinclair 
 Linton v. Boley 
 
 V. Shaw 
 Linville v. Golding 
 ' Lippincott v. Barber 
 
 602 e 
 
 217 
 
 104 
 
 145 
 
 234 
 
 636 
 
 202 
 
 113, 255, 710, 732 
 
 275 
 
 660 
 
 655, 657 
 
 464 
 
 874 
 
 876 a 
 
 468 
 
 359, 360, 373, 389, 390 
 
 432, 895, 904 
 
 226, 418, 419, 424, 848 
 
 765 
 
 680 
 
 186 
 
 288, 375 
 
 646, 653 
 
 863 
 
 336, 337, 648 
 
 861 
 
 116, 253 
 
 104 
 
 84. 234 
 
 848, 876, 879 
 
 226 
 
 598, 794 
 
 75 
 
 213 
 
 9('8 
 
 827 a 
 
 142 
 
 598, 602 .9 
 
 277 
 
 299 
 
 592
 
 INDEX TO CASES CITED. 
 [Befereaces are to aectionu.] 
 
 XCV 
 
 Lippincott v. Davis 
 V. Evens 
 V. Lippincott 
 V. Kidf^way 
 V. Warder 
 V. Wikoff 
 Lipscomb v. Nichols 
 Liptrot V. Ildlmea 
 
 358 
 
 501 
 254 
 541 
 411 
 12»j 
 320 
 
 Liquidation Estates P. Co. v. Wil- 
 
 louRhbv 347 
 
 Lister v. Ilodgsoa 97, 98, 102 
 
 V. Lister 195, 198, 635 
 
 r. Feck ford 864 
 
 V. Stubbs 200, 345 
 
 Litchfield I'. Baker 449, 451, 547 
 
 V. Pickering 547 
 
 V. White 417, 590, 914 
 
 Litt r. Randall 385 
 
 Littell V. Grady 171, 848 
 
 Little V. Bennett 284 
 
 V. Brown 237 
 
 V. Chadwick 122, 828 
 
 V. Little 477 
 
 r. Thome 476 a 
 
 V. Wilcox 24 
 
 V. Willford 701 
 
 Little, Re, Harrison v. Harrison 671 
 
 Littlefield r. Cole 511 
 
 V. Smith 438 
 
 Littlehales v. Gascoigne 468, 903 
 
 Little Rock & F. S. Ry. Co. v. Page 12!) 
 
 Litton V. Baldwin 655, 661, 900 
 
 Litzenberger's Estate 415 
 
 Livermore v. Aldrich 126, 137, 138 
 
 V. Jenckes 592 
 
 Livesay v. Livesay 931 
 
 Livesey v. Jones 712, 720 
 
 Livingston, /« re 282 
 
 Livingston Pet'r 282 
 
 V. Ball 592 
 
 V. Hammond 613 
 
 V. Livingston 38, 48, 51, 95. 277, 562, 
 
 564, 565, 566 
 
 V. Newkirk 562, 566 
 
 V. Stickles 537 
 
 V. Wells 468, 471 
 
 Livingston's Case 918 
 
 Llewellin v. Mack worth 858, 803 
 
 Llewellyn's Trusts 451, 551 
 
 Llovd r. Attwood 851 
 
 't). Baldwin 597,795,796,800 
 
 V. Banks 438 
 
 t>. Branton 512, 513, 514 
 
 V. Brooks 97 
 
 V. Carew 379 
 
 V. Carter 126, 137 
 
 V. Currin 215 
 
 V. Gooid 112. 487 
 
 V. Griffiths 787 
 
 V. Hart 605, 611 
 
 r. Inglis 76 
 
 V. Lloyd 388, 555, 706 
 
 V. Loaring 885 
 
 V. Lvnch 137 
 
 V. Read 130, 144, 145, 146, 147 
 
 V. Rowe 918 
 
 V. Spillett 88, 125, 126, 138, m. 152, 
 
 162, 9(10 
 
 V. Taylor 501 
 
 Lloyd r. Williams 600, 645 
 
 r. Woods 145 
 
 Lobdell V. ilayea 324 
 
 I^>ck r. Lock 532, 533 
 
 I^)ckart r. Forsythe 248 
 
 Locke I'. Farmers' L. & T. Co. 83, 541 
 
 f. Lomas 475, 597, 794, 799, 806 
 
 Lockev r. Lockey 871 
 
 Lockhart v. Canheld 328 
 
 r. Hardy 119 
 
 f. Northington 499, 501 
 
 V. Reillv 260, 457, 467, 848, 876 
 
 V. Wya'tt 690, 591 
 
 Ixjckridge v. Foster 171 
 
 Lock wood V. Abdy 246, 907 
 
 V. Canfield 75 
 
 V. Fenton 623 
 
 V. Rilev 418 
 
 V. Stockholm 576 
 
 Lockyer r. Savage 388, 555 
 
 Loclon I'. Locton 121 
 
 Loddington v. Kline 597 
 
 Loder v. Allen 330 
 
 Lodge V. Hamilton 639 
 
 Loften V. Witboard 127 
 
 Loft house, /n re 612 
 
 Loftia V. Loftis 60, 145 
 
 Loftus t". Heriot 671 
 
 Logan V. Birkett 672 
 
 V. Ueshay 569 
 
 V. Fairlee 623 
 
 V. Fontaine 918 
 
 r. Johnson 137 
 
 r. Logan 918 
 
 V. Simmons 213 
 
 Lomax v. Lomax 616, 619 
 
 r. Pendleton 462. 468 
 
 V. Ripley 77, 83, 84, 93, 159, 511 a 
 
 Lombard v. "Morse 200 
 
 Londeuschlager v. Benton 759 
 
 Londesborough v. Somerville 544 
 
 London v. Garway 157 
 
 r. Richmond 885 
 
 London Ass'n v. London & India 
 
 Docks Joint Committee 732 
 
 London Bridge, In re 787 
 London Gas Light Co. v. Spottiswood 877 
 
 London & County Banking Co. v. 
 
 Bray 646 
 
 London R. Co. v. Winter 226 
 
 Long V. Blackall 379 
 
 V. Cason 621, 863 
 
 V. Clapton 431 
 
 V. Dennis 512, 515 
 
 V. Fox 171, 843 
 
 V. Israel 891 
 
 r. King 145, 206, 865 
 
 V. Lonsr 286, 520, 615, 796 
 
 V. Mathieson 7.02 
 
 V. Norcom 618 
 
 V. Rankin 784 
 
 r. Ricketts 514, 517 
 
 V. Serge r 126 
 
 V. Vallean 863 
 
 V. White 647, 660. 855 
 
 Lonpbotham's Estate 869 
 
 Longfurd v. F.yre 51 1 b 
 
 Louglev r. Hall 9i8 
 
 V. Lougley 157
 
 XCVl 
 
 INDEX TO CASES CITED. 
 [References are to sections. ] 
 
 Longman v. Brown 714 
 
 Longinate v. Ledger 18'J 
 
 Lougmore v. Broom 251, 255, 258, 468, 
 
 507 
 
 r. Elcum 112, 116, 117, 118, 620 
 
 Longwith v. Butler 602 c, 602 x 
 
 Longworth v. Goforth 215 
 
 Longworth's Estate 556 
 
 Lonsdale t'. Beckett 291 
 
 V. Berchtoldt 119 
 
 Lonsdale's Estate 100 
 
 Loomis V. Lift 212 
 
 V. Loomis 134, 438 
 
 V. McClintock 783 
 
 V. Spencer 56 
 
 Loomis' s Appeal 573 
 
 Lord V. Bishop 127 
 
 V. Brooks 545, 547 
 
 V. Bunn 386 b, 555, 807 
 
 V. Fisher 589 
 
 V. Godfrey 451, 508, 509, 547 
 
 Lord and Fullerton's Contract, Jn re 264 
 
 Lord Paget' s Case 585 
 
 Lord Sandwich's Case 511 a 
 
 Lorillard v. Coster 380 
 
 Loring, Ex pai-te 236 
 
 V. Blake 381, 490, 507, 508 
 
 V. Brodie 511 6 
 
 V. Elliott 152 
 
 V. Hildreth 103, 158 
 
 V. Hunter 359, 370 
 
 V. Loring 117, 386 a, 620 
 
 V. Mass. Horticultural Society 288 
 
 V. Palmer 82 
 
 V. Salisbury Mills 242, 670 
 
 V. Steinman 476 a, 928 
 
 V. United States Co. 588 
 
 Lorings v. Marsh 499, 721, 724, 731 
 
 Lorman v. Clarke 855 
 
 Loscombe v. Wintringham 705, 725, 729 
 
 Losey v. Stanley 476 a, 511 0, 920 
 
 Losley V. Losley 817 
 
 Loss V. Obrv 186 
 
 Lothrop V. King 212, 591 
 
 Lott r. Kaiser 171 
 
 Louch, Ex parte 587 
 
 Louisville Trust Co. v. Stockton 828 
 
 Loud V. Barnes 137 
 
 Lounsbury J'. Purdy 58, 126, 133, 142 
 
 Lovat V. Leeds 627 
 
 Lovatt v.jKnipe 194 
 
 Love V. Gaze 94, 150 
 
 V. Love 855, 858 
 
 V. ISIorris 910 
 
 V. Robertson 676 
 
 Lovegrove, Ex parte 910 
 
 Loveland v. Clark 770 
 
 Lovell V. Minot 456 
 
 Loveman v. Taylor 281. 918 
 
 Loveridge ?'. Cooper 438, 926 
 
 Lovering v. Minot 551 
 
 V. Worthington 382 
 
 Lovesv V. Smith 213 
 
 Lovett V. Famham 104, 248 
 
 V. Lovett 288 
 
 V. Taylor 76, 162 
 
 Low V. Barchard 1^7 
 
 V. Bouverie 177, 554 
 
 V. Brinnan 764 
 
 Low V. Carter 
 
 V. Geuiley 
 
 V. Manners 
 Lowden v. Lowden 
 Lowe V. Convention 
 
 V. Fox 
 
 V. Morgan 
 
 V. Morris 
 
 V. Peers 
 
 V. Suggs 
 
 V. Swift 
 Lowell V. North 
 Lowell's Appeal 
 Lowenstein v. Evans 
 Lowery v. Erskine 
 Lowman, Jn re 
 
 846, 924 
 246 
 514 
 841 
 460 
 646 
 873 
 918 
 516 
 277 
 764 
 602 o 
 700 
 21 
 206 
 382 
 
 Lowndes v. Garnett & Mosely Co. 752 
 
 i;. Lane 173, 176 
 
 V. Lowndes 616 
 
 Lowrie's Appeal 891, 918 
 
 Lowr}' V. Commercial Bank 242 
 
 V. Commercial & Farmers' Bank 814 
 
 V. Farmers' Bank 225 
 
 V. Fulton 259, 261, 401, 463 
 
 V. Houston 641 
 
 V. Ticrnan 768 
 
 Lowson V. Copeland 438, 440, 465 
 
 Lowther v. Charlton 222 
 
 V. Lowther 206 
 
 Lucas V. Atwood 594 
 
 V. Braudreth 357 
 
 V. Coe 910 
 
 V. Doe 500 
 
 V. Harris 602 n 
 
 V. Lock hart 112, 117, 248 
 
 V. Oliver 60^2 v 
 
 V. Putney 754 
 
 V. Sanbury & Erie R. R. Co. 589 
 
 Luckett V. White 570 
 
 Luckin v. Rushworth 196 
 
 Lucknow V. Brown 613 
 
 Luco V. De Toro 863 
 
 Luddy's Trustee v. Peard 203 
 
 Ludlam v. High 733 
 
 Ludlow V. Flournov 171 
 
 V. Greenhouse' 693, 724, 732, 896 
 
 V. Hurd 159 
 
 Ludwig V. Highley 58, 334 
 
 Luke V, Kelmorey 119 
 
 Luken's Appeal 463, 468, 851, 918, 919 
 
 Lulham, In re 196 
 
 Lumb V. Milnes 634, 649 
 
 Lumley, Jn re 671 
 
 Lummis v. Big Sandy Land Co. 845 
 
 Lund V. Blanshard 877 
 
 V. Lund 463, 468 
 
 Lundv V. Lundy 181 
 
 Lunham v. Blundell 443 
 
 Luplon r. Lupton 562, 569, 570, 796 
 
 V. White 447 
 
 Lurton v. Rodgers 770 
 
 Luscomb V. Ballard 262, 812 
 
 Luscombe v. Grigsby 206 
 
 Luse V. Reed "45 
 
 Lush V. Wilkinson 149 
 
 Lush's Trusts 634 
 
 Lusk V. Lewis 715 
 
 Lusk's Appeal 1^5 
 
 Luther v. Bianconi 8, 440, 532, 845
 
 INDEX TO CASES CITED. 
 LReferences ue to Bections.] 
 
 XCVU 
 
 Lutheran Cong, v. St. 
 
 Church 
 Luttrell V. Ohnius 
 Lycan v. Millt-r 
 Lyddoii V. Ellison 
 
 V. Moss 
 Lyell V. Kennedy 
 Lyford v. Thurston 
 Lypon V. Lord 
 Lylus r. Hattan 
 Lyinan v. Parsons 
 Lyn V. Ash ton 
 Lynch v. Cox 
 
 V. Dearth 
 
 V. Swayne 
 Lyne, Ex parte 
 
 V. 
 
 V. Crouse 
 
 V. Guardian 
 Lyne's Ex'rs i'. Crouse 
 Lynn v. Beaver 
 
 V. Bradley 
 
 V. Lvnn 
 Lynn's Appeal 
 Lyon V. Baker 
 
 V. Foscue 
 
 V. Lj'on 
 
 V. Marclay 
 
 V. Kiciimond 
 
 V. Saunders 
 
 V. Swayne 
 Lyons r. Beard 
 
 r. Bodenhamer 
 
 V. Chamberlin 
 
 V. Jones 
 Lypet V. Carter 
 Lysaght v. Royse 
 Lyse V. Kingdom 457, 462, 
 
 Lyster v. Burroughs 
 Ly tie's Appeal 
 
 M. 
 
 Michael's 
 
 733 
 
 181,211 
 901 
 37G 
 809 
 
 803, 805 
 137, 217, 828 
 GIT) 
 408 
 608 
 679 
 126 
 237 
 520 
 414 
 
 648, 652 
 661 
 182 
 652 
 94 
 639 
 134 
 540 
 
 432, 904 
 
 918 
 
 195, 205, 428 
 
 863 
 
 184, 226 
 184 
 680 
 918 
 217 
 403 
 602 y 
 
 569, 570 
 
 511 a 
 
 520, 818, 876, 
 
 877, 900 
 122 
 680 
 
 M., In re 
 
 Maberly v. Turton 249, 255, 
 
 Mabie v. Bailey 
 
 McAdam v. Logan 
 
 McAfee v. Ferguson 
 
 McAlister r. Burgess 
 
 McAllister v. Barry 
 
 V. Commonwealth 
 
 V. Marsliall 
 
 V. Montgomery 
 McAlpin V. liurnett 232, 238, 
 
 McAlpinc V. Potter 
 McArtee v. Engart 
 McArthur v. Gordon 
 
 V. Uobiiison 
 
 V. Scott 
 Macartney r. Blackwood 
 Macaulav i". PiiiUips 630, 632, 633, 639, 
 McAuley v. Wilson 724, 
 
 McAulev's Estate 83, 
 
 McBee V. Loftes 
 McBride v. Mclntyre 260, 281, 877, 
 
 V. Porter 
 
 r. Smyth 310 a, 
 
 McBurney v. Carson 
 
 VOL. I. — g 
 
 56 
 615 
 
 82 
 294 
 213 
 705 
 171 
 463 
 591 
 136 
 239 
 917 
 187 
 142 
 790 
 873 
 872 
 645 
 720 
 163 
 221 
 910 
 733 
 052 
 456 
 
 459, 918 
 
 79 
 803 
 231 
 244 
 592 
 
 33 
 
 460, 918 
 828 
 803 
 471 
 226 
 1.38 
 562 
 
 82 
 
 863 
 
 235 
 
 277, 820 a 
 
 199 
 
 773, 800 
 
 38, 748 
 
 34 
 
 855 
 
 184, 851 
 
 69 
 
 511 a, 803 
 
 562 
 
 861 
 
 848 
 
 McCahan's Appeal 
 McCahill V. McCahill 
 McCain v. Peart 
 McCall r. Coover 
 V. Harrison 
 V. Hinkley 
 I'. Parker 
 V. Peachy 
 V. Rogers 
 McCallam v. Carswell 
 McCall's Estate 
 McCalmoiit r. Rank in 
 McCammon v. Petitt 
 McCamj)bell v. McCampbell 
 McCandless v. Warner 
 McCandlcss's P^state 
 McCandlish v. Keen 
 Mc(,'ann v. Randall 
 McCants v. Bee 
 McCarogher v. Whieldon 
 McCartee v. Orph. iVsy. See. 
 
 V. Teller 
 McCarter v. Cornel 
 McCarthy v. Decaix 
 V. Gould 
 V. McCarthy 
 I'. McCartie 
 V. Tyle 
 JlcCartin v. Traphagen 
 McCartney v. Bostwick 17, 126, 142, 149, 
 
 240 
 
 V. Calhoun 195 
 
 V. Ridgwav 163 
 
 McCarty v. Ball 855 
 
 V. iilevins 67 
 
 V. Pruet 2.32 
 
 McCaskev v. Graff 215 
 
 McCaskill v. Lathrop & Co. 815 c 
 
 McCauly t'. Givens 757 
 
 McCauseland's Appeal 918 
 
 McCaw r. Blunt 918 
 
 V. Galbraith 64, 131, 305, 327, 436 
 
 McClain v. McClain 226 
 
 McClanahan r. Henderson 538 
 
 McClane t'. Shepherd 865 
 
 McClean, Ke 52 
 
 McClellan v. McClellan 52 
 
 McClelland v. Norfolk So. R. Co. 225 
 
 McClintie v. Ocliiltree 655 
 
 McClintock r. Irvine 357 
 
 McClug V. Leckv 591 
 
 McClure v. Miller 98, 213 
 
 V. Purcell 165 
 
 V. Raben 183 
 
 McClurg V. Wilson 520 
 
 McCluse V- Doak 132 
 
 McColgham i'. Hopkins 585 
 
 McCol lough r. Sommerville 585 
 
 McComas v. Long 128 
 
 McComb V. Frink 225 
 
 McCdmbie v. Davis 243 
 
 ISIcCord V. O'Chiltree 701, 724, 748 
 
 McCormick v. Garnett 632 
 
 r. Grogan 181 
 
 V. Malin 187 
 
 McCosker r. Brady 280, 305, 341 
 
 !•. Golden 603 
 
 McCown r. .lones 237 
 
 McCoy V. liorwitz 456
 
 XCVUl 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 McCoy V. Poor 800, 801 
 
 V. Scott 245 
 
 McCralien v. McCrahen 918 
 
 McCrary v. Cleineuts SOi 
 
 McCraw v. Davis 189 
 
 McCrea v. Purmont 843, 855 
 
 McCreary v. Bomberger 253 
 
 V. Gewinner 82, 103 
 
 McCreery v. Hamlin 780 
 
 McCrockliii v. McCrocklin 672 
 
 McCrory v. Foster 127, 640 
 
 MacCubbin v. Cromwell 79, 82, 84, 85, 259, 
 
 201,202,404,416,420,890 
 
 McCue V. Gallagher 139 
 
 McCuUoch V. Cowher 172 
 
 V. Hutchinson 591 
 
 McCullough V. McCullough 453 
 
 McCullough's Appeal 614 
 
 McCullum V. Coxe 330 
 
 McCurdy's Appeal 926 
 
 McDearmon v. Burnham 79 
 
 McDermith v. Voorhees 76, 81 
 
 McDermott v. Kealy 610 
 
 V. Lorillard 782 
 
 V. Strong 594 
 
 McDevitt V. Frantz 169 
 
 McDonald v. Black 118 
 
 V. Bryce 160, 397 
 
 V. Donaldson 82 
 
 V. Hanson 774 
 
 V. King 500 
 
 i V. Mav 230 
 
 V. McDonald 132, 863 
 
 V. Neilson 187 
 
 V. Richardson 430 
 
 V. Sims 863 
 
 V. Walgrove 546 
 
 V. Walker 339, 340, 494 
 
 McDonnell v. Eaton 627 
 
 V. Harding 417, 443, 463 
 
 V. Hesilrigde 213 
 
 McDonough v. McDonough 736 
 
 V. Murdoch 41, 42, 43, 126, 142 
 
 McDougald v. Cary 341 
 
 V. Dougherty 594 
 
 McDowell V. Brantley 817 
 
 t). Caldwell 618,911,918 
 
 V. Goldsmith 229, 230, 863 
 
 I'. J-awless 502 
 
 r. Peyton 182 
 
 V. Potter 639, 863 
 
 Macduff, In re 712 
 
 McEIhennv's Appeal 469, 471, 891, 910 
 
 McElvoy V. McElvoy 152, 312, 359 
 
 Macey v. Shurmer 112 
 
 McFiidden v. Hefley 449 
 
 V. Jenkyns 86, 96, 102, 105 
 
 McFadin v. Catron 189, 295 
 
 Macfarland v. Heim 658 
 
 McFarland's Appeal 511 a 
 
 McFerrin v. White 680 
 
 McGachen v. Dew 438, 467, 878, 885 
 
 McGar v. Nixon 456 
 
 McGarger v. Nogles 320, 652 
 
 McGaughev v. Brown 196 
 
 McGee v. Wells 126 
 
 McGeorge v. Bigstones Gap Imp. Co. 411 
 
 McGibbon v. Abbott 253, 254 
 
 McGill, In re 238 
 
 V. Doe 328 
 
 McGillivray, Re 275 
 
 McGinity v. McGinity 137 
 
 McGinn v. SchaeSer 890 
 
 McGinnis v. Jacobs 137 
 
 McGinness v. Barton 75 
 
 McGirr v. Aaron 731, 748 
 
 McGivney v. McGivney 141, 870 
 
 McGlaughlin v. McGlaughlin 508, 570 
 
 McGlinsey's Appeal 065, 606 
 
 McGovern v. Knox 82, 126, 144 
 
 McGowan v. Gowan 126, 1.32, 133, 181 
 
 McGrath, In re 603 
 
 McGraw r. Daly 124 
 
 McGregor v. Gardner 206 
 
 V. Hall 602 d, 602 j, 602 I 
 
 V. McGregor 884 
 
 McGuire v. Devlin 803 
 
 V. McGowan 126, 139 
 
 V. Ramsey 126 
 
 McHan v. Ordway 248 
 
 McHardy v. Hitchcock 826, 827 
 
 Machemer's Estate 448 
 
 McHugh V. McCole 448,715, 729 
 
 McIUvaine v. Smith 386 a, 555 
 
 Mcllvaine v. Gether 512 
 
 Mcllwrath v. Hollander 223 
 
 Mclntiie v. Agricultural Bank 602 / 
 
 V. Hughes 109, 111 
 
 V. Janesville 38 
 
 V. Knowlton 678 
 
 V. Lanesville 724 
 
 V. Prior 861 
 
 V. Skinner 75 
 
 Mclntire Poor School v, Zanesville 
 
 Canal Co. 38, 43, 121, 240, 460, 698, 700. 
 
 742 
 
 Mcintosh's Estate 520 
 
 Mclntyre, In re 568 
 
 V. Farmers' Bank 87 
 
 Mack's Appeal 701 
 
 McKamey v. Thorp 127, 815 c 
 
 Mackason's Appeal 555 
 
 Mackay v. Coates 328 
 
 V. Douglass 108 
 
 V. Green 562 
 
 V. Langley 602 ./f 
 
 V. Martin 215 
 
 McKay, In re 336 
 
 w.'Carrington 38, 231 
 
 McKee v. Griggs 79 
 
 V. Judd 69 
 
 V. Lamon 206 
 
 V. Vail 171 
 
 Macken v. Hogan 438 
 
 McKenna, In re 122, 850 
 
 McKennan v. Phillips 240, 608, 672 
 
 McKenney v. Burns 162 
 
 Mackenzie v. Mackenzie 585 
 
 V. Taylor 900 
 
 McKenzie v. Sumner 299 
 
 McKeown v. Collins 233 
 
 V. McKeown 137 
 
 McKern v. Handy 891, 804 
 
 Mackey v. Maturin 605 
 
 McKey, Ex parte 618 
 
 Mackie v. Cairnes 591 
 
 V. Mackie 439, 450, 551 
 
 McKilHp V. McKillip 235
 
 INDEX TO CASES CITED. 
 [References are to sectiooB.] 
 
 XCIX 
 
 McKim V. Aulbach 
 
 
 
 426 
 
 V. lilake 
 
 
 
 845 
 
 V. Doaiie 
 
 
 277 
 
 284 
 
 V. Duncan 
 
 
 
 918 
 
 V, Glover 
 
 
 
 407 
 
 V. Handy 
 
 
 
 2'j4 
 
 V. Hibbard 
 
 
 
 408 
 
 V. Voorhiea 
 
 
 
 72 
 
 McKinlfv V. Irvine 
 
 
 196 
 
 881 
 
 MeKiniiJv v. I'iukard 
 
 
 
 187 
 
 V. lilioadus 
 
 
 
 6'J3 
 
 Mackiiitosli V. Ogilvie 
 
 
 
 72 
 
 i». Towiiseiid 
 
 
 
 741 
 
 McKissick r. Tickle 
 
 
 
 227 
 
 McKnij;lit r. Brady 
 
 
 232 
 
 231» 
 
 V. I'iivlor 
 
 
 228 
 
 8G'J 
 
 V. Wilsii 468, 471, 472 
 
 612, 
 
 613, 
 
 614, 
 
 
 
 615 
 
 91S 
 
 McKonke3''s Appeal 
 
 
 113 
 
 ll'J 
 
 Mackri'll v. Walker 
 
 
 
 920 
 
 Makrctli v. Syiumons 38, 
 
 217, 
 
 232, 
 
 233, 
 
 
 235 
 
 , 236 
 
 239 
 
 V. Walmesley 
 
 
 
 178 
 
 Mackwortii i". Hinxman 
 
 
 
 380 
 
 MeLaiii v. Scliool Directors 
 
 
 732 
 
 748 
 
 McLaiiahaii v. McLaiiahaa 
 
 
 
 75 
 
 t'. W^'aiit 
 
 
 
 570 
 
 McLune i'. Jolinsoa 
 
 
 
 1G6 
 
 V. McDonald 
 
 
 
 640 
 
 Maclaren i'. Stainton 
 
 
 
 72 
 
 McLaren v. Stainton 
 
 545, 556 n 
 
 McLarrcn i'. IJrewer 
 
 
 127 
 
 128 
 
 Maciar}- v. Kezner 
 
 
 
 ITS 
 
 McLaughlin v. Detroit 
 
 
 
 545 
 
 V. Fulton 
 
 
 133 
 
 828 
 
 McLaurie v. Parthlow 
 
 
 82,84 
 
 McLaurin v. Fairly 
 
 75 
 
 832 
 
 840 
 
 Maclay v. Love 
 
 662 
 
 676 
 
 685 
 
 McLean v. Wade 
 
 
 715 
 
 748 
 
 McLearn v. McLellan 
 
 
 
 232 
 
 McLernore v. Good 
 
 
 541, 
 
 556 
 
 McLennan v. Sullivan 
 
 
 
 120 
 
 ^L'lcleod V. Annesley 
 
 
 
 457 
 
 McLeod V. Hullard 
 
 
 
 171 
 
 V. Drummond 225, 809 
 
 810, 
 
 811, 
 
 814, 
 815 
 
 V. Evans 
 
 
 122, 
 
 828 
 
 V. First National Bank 
 
 
 828, 
 
 836 
 
 McLoud V. Burchall 
 
 
 
 502 
 
 V. IJdberts 
 
 
 
 032 
 
 McLoutli ('. Hunt 
 
 
 465, 
 
 545 
 
 McMahill V. McMahill 
 
 
 
 613 
 
 Mc^Lilion V. Featherstonhaugh 
 
 
 828 
 
 r. Harrison 
 
 
 
 292 
 
 Mc^Ieukin r. Edmonds 
 
 
 
 594 
 
 Mc.Millun !'. Deerinfj 
 
 
 
 253 
 
 Mi-Monai;Ie v. Mc(jlinn 
 
 
 
 801 
 
 McMullen V. Heatty 
 
 
 
 304 
 
 V. O'Reilly 
 
 
 
 810 
 
 V. Scott 
 
 
 
 918 
 
 McMurrav v. jrontgomery 
 
 416 
 
 418, 
 
 421 
 
 McMurry v. Mnbley 
 
 
 
 200 
 
 IMacnab v. Wliitbread 
 
 
 
 112 
 
 McN'air v. Pope 
 
 
 
 171 
 
 McNair's Appeal 
 
 
 225 
 
 421 
 
 McNamara v. Garrity 
 
 
 
 120 
 
 V. Jones 
 
 
 
 910 
 
 IStcNeil V. McDonald 
 
 
 
 539 
 
 McNeilage v. HoIIoway 
 
 
 
 640 
 
 M. Xeill V. McNeill 248 
 
 McNuille V. Acton 60, 225, 454, 800, 810 
 
 McNeilledf,'e v. Galbrath 251, 255 
 
 McNish V. Guerard 299, 305, 310 
 
 Macomb v. Kearney 766 
 
 Macon, itc. Railway v. Parker 675 
 
 Macpherson v. Macplierson 550 
 
 Mcpherson v. Cox 276 
 
 V. Rollins 104 
 
 V. Snowdon 357, 366, 371, 374 
 
 McQueen v. Farquhar 511 a, 769, 830 
 
 V. Lilly 508 
 
 V. Meade 350 
 
 McRaeny v. Johnson 330 
 
 McRarey v. Huff 215 
 
 McRee v. Means 112, 380 
 
 McKcinnKjn r. Martin 239 
 
 McKoljiTts r. Carneal 246, 869 
 
 V. iMoudy 733 
 
 McTif,'lu; V. Dean 827 
 
 McVey V. Boj,'gs 636 
 
 McWhorter v. Agnew 498 
 
 V. Benson 919 
 
 V. Wright 586 
 
 McWillianiH v. Nisby 68 
 
 Macy v. Williams 225 
 
 Maddeford v. Austwick 178, 210 
 
 Maddison v. Andrew 139, 144, 251, 507, 
 
 510 
 
 Maddocks v. Wren 243 
 
 Maddox V. Allen 858 
 
 V. Maddox 512, 515, 555 
 
 V. Staine 379 
 
 Mades i'. Miller 910 
 
 Madox V. Jackson 250, 878 
 
 Maennel v. Murdock 590, 591 
 
 Maliit r. Hvnd 86 
 
 Magdalen Ccdlege v. Att.-Gen. 737, 866 
 
 Magdalena Steam Nav. Co., Vn re 754 
 
 Magee r. Carpenter 602 d 
 
 V. Cowperthwaite 918 
 
 Magccs, In re. 603 
 
 Magill V. Brown 46, 696, 699, 700, 701, 
 
 704, 715, 721, 730, 748 
 
 Maginn v. Green 917 
 
 Magruder r. Peter 232, 238, 601 
 
 Maguiac v. Thompson 184 
 
 Maguire v. Scully 360, 361 
 
 Magwood V. Johnston 661 
 
 Mahan v. Mahan 109, 111 
 
 Mahar v. O'llara 576 
 
 Mahlor v. Lees 226 
 
 Mahon v. Savage 255, 256, 699 
 
 V. Stanhope 539, 777 
 
 Mahony i'. Hunler 202 
 
 Mahorner v. Harrison 126 
 
 Mais, In re 275 
 
 Mail land r. Backhouse 201 
 
 V. Bateman 440 
 
 V. Irving 201 
 
 r. Wilson 219 
 
 Major t'. Herndon 93 
 
 V. Lansley 647, 656 
 
 V. Sommes 680, 685 
 
 Makepeace t'. Rogers 803 
 
 Malcolm v. O'Callaghan 613, 514, 517, 910 
 
 Matins, In re 774 
 
 V. l?arker 112 
 
 V. Keighley 112, 116
 
 INDEX TO CASES CITED. 
 [References are to eections.] 
 
 Mai ins V. Malin 38, 82, 137, 189, 227 
 
 Mallabar v. Mallabar 150, 151, 900 
 
 Mallalieu v. Hodgson 
 
 
 212 
 
 Mallet V. Smith 
 
 
 499 
 
 Mallory v. Mallory 
 
 
 127 
 
 Malone v. Geraghty 
 
 
 845, 878 
 
 V. O'Connor 
 
 
 112 
 
 Maloney v. Kennedy 
 
 
 664, 608 
 
 V. Kernan 
 
 
 217 
 
 V. L' Estrange 
 
 
 229, 230 
 
 V. Tilton 
 
 
 163 
 
 Maltby's Case 
 
 
 179 
 
 Malzy V. Edge 
 
 
 261, 267 
 
 Man V. Warner 
 
 
 559 
 
 Manahan v. Gibbons 
 
 
 416 
 
 Manby v. Bewicke 
 
 
 803 
 
 Manchester v. Bonhatn 
 
 
 903 rt 
 
 V. Manchester 
 
 
 328 
 
 V. Mathewson 
 
 
 855 
 
 V. Sahler 
 
 
 680 
 
 Manchester Royal Infirmary, 
 
 In re 453 
 
 Manchester School Case 
 
 
 725 
 
 Manderson's Appeal 
 
 
 815 6 
 
 Mandeville v. Solomon 
 
 
 211 
 
 Manes r. Durant 
 
 
 213 
 
 Mangles v. Dixon 
 
 
 438, 831 
 
 Manhattan Bank v. Walker 
 
 
 122 
 
 Manice v. Manice 
 
 
 305 
 
 Manion v. Titsworth 
 
 641 
 
 , 863, 865 
 
 Manly v. Slason 232, 233 
 
 236 
 
 237, 239 
 
 Mann v. Ballott 
 
 
 733 
 
 V. Betterly 
 
 
 187, 189 
 
 V. Darlington 
 
 
 212 
 
 V. Ricketts 
 
 
 863 
 
 Mannen v. Bradberry 
 
 
 843 
 
 Manners v. Furze 
 
 
 818 
 
 Manning v. Albee 
 
 
 173 
 
 V. Cox 
 
 
 330, 520 
 
 V. Manning 429, 462, 
 
 464, 
 
 468, 900, 
 916 
 
 V. Pippen 
 
 
 226 
 
 V. Spooner 
 
 
 563 
 
 V. Thesiger 
 
 
 881, 885 
 
 V. Wopp 
 
 
 118 
 
 Mannings v. Randolph 
 
 
 556 
 
 Mannix v. Purcell 
 
 142 
 
 , 169, 477 
 
 Mannsell v. Hedges 
 
 
 208 
 
 V. Mansell 217, 241, 344, 509 b, 784, 
 
 
 
 828, 844 
 
 Mansell v. Vaughn 
 
 414 
 
 , 491, 505 
 
 Manser r. Dix 
 
 
 768 
 
 Mansfield v. Danieron 
 
 
 237 
 
 V. Mansfield 
 
 602 h, 672 
 
 V. McGinness 
 
 
 866 
 
 V. Shaw 
 
 
 816, 818 
 
 Mansfield's Case 
 
 
 189 
 
 Manson v. Bailie 
 
 
 401, 432 
 
 Mant V. Leith 458 
 
 ,460 
 
 , 467, 655 
 
 Manuf. & Mech. Bank v. 
 
 Bank of 
 
 Penn. 
 
 
 589 
 
 Manufacturers Nat. Bank V. 
 
 Swift 44 
 
 Mapp V. Elcock 
 
 
 152, 157 
 
 Mapps V. Sharpe 
 
 
 199, 602 V 
 
 V. Tyler 
 
 
 766 
 
 Mara v. Browne 
 
 
 846 
 
 V. Manning 
 
 
 969 
 
 Marbury v. Ehlen 
 
 
 225,814 
 
 March v. Berrier 
 
 
 611 
 
 V. Eastern R. R. Co. 
 
 
 554 
 
 March v. Head 
 
 
 
 633, 636 
 
 V. Russell 
 
 467, 
 
 846, 
 
 851, 867 
 
 Marcy v. Amazeen 
 
 
 
 82 
 
 Mare v. Sandford 
 
 
 
 591 
 
 Mareck v. Minneapolis Trust Co. 
 
 787 
 
 Marlield v. Ross 
 
 
 
 602 z 
 
 Margetts v. Barringer 
 
 
 
 648 
 
 V. Perks 
 
 
 
 418 
 
 Marigny v. Remy 
 
 
 
 593 
 
 Marine Fire Ins. Co. v. Early 
 
 
 232 
 
 Marker v. Marker 
 
 
 
 540, 851 
 
 Markle's Estate 
 
 
 
 195 
 
 Mark 1 63' v. Singletary 
 
 
 
 648 
 
 Marks v. Morris 
 
 
 
 602 ee 
 
 V. Semple 
 
 
 
 910, 917 
 
 Markwell v. Markwell 
 
 
 
 104 
 
 Marlborough, Duke of. In re 
 
 
 162 
 
 Marlborough v. Godolph 
 
 in 
 
 93, 
 
 252, 383, 
 
 
 
 507 
 
 508, 714 
 
 V. St. John 
 
 
 
 477, 552 
 
 Maries v. Cooper 
 
 
 
 218 
 
 Marlow v. Johnson 
 
 
 
 602/ 
 
 Maroney v. Maronej' 
 
 
 
 133 
 
 Marples v. Brainbridge 
 
 
 
 512, 516 
 
 Marr v. Oilman 
 
 
 
 351 
 
 V. Peay 
 
 
 
 270 
 
 Marrett v. Paske 
 
 
 
 428 
 
 Marrick v. Grice 
 
 
 
 667 
 
 Marriott v. Kinnersley 
 
 
 
 402, 845 
 
 V. Marriott 
 
 
 
 182 
 
 Marryatt v. Marryatt 
 
 
 
 280, 826 
 
 V. Townley 359, 
 
 361, 
 
 364, 
 
 366, 371, 
 374 
 
 Marsden's Estate 
 
 
 
 275 
 
 Mavsden's Trusts, In re 
 
 
 
 511a 
 
 Marsh, In re 
 
 
 
 511 c 
 
 V. Alford 
 
 
 
 680 
 
 V. Att.-Gen. 
 
 
 
 724 
 
 V. Hunter 
 
 
 
 469 
 
 V. Marsh 
 
 562, 
 
 647 
 
 666, 684 
 
 V. Means 
 
 
 700, 
 
 724, 726 
 
 V. Oliver 
 
 
 
 863 
 
 V. Putnam 
 
 
 
 72 
 
 V. Renton 
 
 
 
 721, 725 
 
 V. Turner 
 
 
 
 232 
 
 V. Wells 
 
 
 
 536 
 
 V. Wheeler 
 
 
 
 160, 765 
 
 Marshall, Ex parte 
 
 
 
 337 
 
 Marshall, Ee 
 
 
 
 511c 
 
 V. Baltimore & Ohio Railway 
 
 214 
 
 V. Blew 
 
 
 
 542 
 
 V. Bousley 
 
 
 
 366 
 
 V. Brenner 
 
 
 
 451 
 
 V. Carson 
 
 
 
 195 
 
 V. Christmas 
 
 
 
 232, 237 
 
 V. Collett 
 
 
 
 184 
 
 V. Crowther 
 
 
 
 551 
 
 V. Fisk 
 
 
 
 299, 302 
 
 V. Fleming 
 
 
 
 137 
 
 V. Fowler 
 
 
 
 633, 636 
 
 V. Frank 
 
 
 
 219 
 
 V. Gibbings 
 
 
 
 C32 
 
 V. Holloway 169, 
 
 393, 
 
 395, 
 
 619, 906, 
 918 
 
 V. Lovelass 
 
 
 
 55 
 
 V. IMiller 
 
 
 
 680 
 
 V. Sladden 282, 297 
 
 329, 
 
 539 
 
 769, 777 
 
 V. Stevens 
 
 195, 
 
 655 
 
 661, 782 
 
 Marshall's Estate 
 
 
 305 
 
 , 451, 865
 
 INDEX TO CASUS CITED. 
 
 CI 
 
 Marstellcr's Appeal 
 ISIartelli v. Ilolloway 
 Martidall v. Martin 
 Martin, lie 
 
 V. Aliter 
 
 V. Bainl 
 
 V. UiiKlwin 
 
 t'. Ucll 
 
 V. BliL'lit 
 
 V. Coles 
 
 V. Fort 
 
 V. Kraiitz 
 
 V. Fr\'e 
 
 V. Funk 
 
 V. (iraves 
 
 V. Greer 
 
 V. Jackson 
 
 V. Joliffe 
 
 [References are 
 
 918 
 381 
 
 c'j;j 
 
 62'2 
 602 c/ 
 
 137 
 
 815 6 
 
 648, 04 y 
 
 172 
 
 243 
 299, 055 
 
 803 
 
 502, 503 
 
 97, 'J'J 
 
 107 
 127, 83(1 
 
 803 
 
 830 
 
 V. Margham 388, 396, 399, 709, 7_2i^, 
 
 ». Martin 71,72,142,238,304,427, 
 629, 631, 035, 843 
 
 V. McCord If} 
 
 V. Mitchell \^' 
 
 V. Morgan I'O. \'Jl 
 
 V. Parnell °«' 
 
 V. Kamsey 1 '« 
 
 V. Kaybora ^o*' ^'j'' 
 
 r. Read °'3 
 
 D. Kemington {^^ 
 
 V. Sedgwick 438 
 
 V. Sherman ^t^ 
 
 «. Smith 334, 801 
 
 V. Swaunell '^|» 
 
 Martin's Appeal o^^ "^^^ 
 
 Martindale v. Picquot ^J» 
 
 Martzell f. Stauffer 8^;^ 
 
 Marvel v. Phillips »G6 
 
 Marvin v. Brooks ^;^:^ 
 
 Marwood t'. Darell ^OJ- 
 
 Maryland Ins. Co. v. Dalrymple 199 
 
 Mason, in re ^fj 
 
 V. liaker i''5 
 
 V. Bank of Commerce 700, t'Ji 
 
 V. Chambers J*^ 
 
 V. Crosby 171, 230 
 
 V. Dry '^11 
 
 r. Jones 503, 020 
 
 V. Limbury l'" 
 
 V. Martin 428, 785 
 
 V. Mason 347, 508, 511, 611, 858, 859 
 
 V. McNeill 639, 040 
 
 t". Morgan 640 
 
 V. Morley 44t, 
 
 V. Pewabic M. Co. 242 
 
 V. Pomeroy 400 
 
 V. Uosevelt ^'° 
 
 V. Smallwood 299 
 
 V. Wait 404, 409, 606, 009 
 
 V. Wheeler 253 
 
 V. Whitehorn 443, 444 
 
 V. Williams l^'-^ 
 
 Mass. Hosp. V. Amory 275, 280 
 
 V. Fairbanks 607 
 Mass. Soc. for Prevention of Cruelty to 
 
 Animals v. Boston 712 
 
 Massenburgh v. Ash 379, 38'- 
 
 Massett v. Pocock 894 I 
 
 to Bectiouh.] 
 
 Massey v. Banner 406,441, 443, 444, 463, 
 
 •^ 901, 914 
 
 V. Davies 206 
 
 V. Fi»her 44 
 
 V. Huntington 98, 99 
 
 V. McUwaiue 217 
 
 r. ( )' 1 )ull «''3 
 V. Parker 646, 647, 648, 652, 653, 671 
 
 V. Sherman H2 
 
 Massie v. Watts 70, 71, 72 
 
 Massy V. Stout 276 
 
 Master r. DeCroismar 04,304 
 
 V. Fuller 657, 058 
 
 Masters r. Masters 572, 573 
 
 Mastin r. Barnard 202 
 
 Mather r. Bennett 803 
 
 V. Norton 796, 801 
 
 V. Tliomas 338 
 
 Mathers v. Prestman 780 
 
 Mathes v. Bennett 403 
 
 Mathew i'. Hanbury 171 
 
 Mathews v. Bliss 178, ISO 
 V. Brise 443, 444, 401, 403 
 
 V. Gutss 639 
 
 V. Jlevward 458 
 
 V. Keble 393 
 
 V. Masters 706 
 
 V. Mathews 421 
 
 Mathias v. Mathiaa 841 
 
 Mathis V. Matliis 918 
 
 Mathison v. Clarke 431, 432, 904 
 
 Matson v. Abbey 856 
 
 Mattex I'. Weand 237 
 
 Matthew r. Brise 871 
 
 V. Holman 610 
 
 I'. Marow 724 
 
 Matthews v. Bagshaw 905 
 
 V. Dellicker 827 a 
 
 V. Dragand 195, 915 
 
 V. Leaman 85 
 
 V. McPherson 328, 329 
 V. Ward 0, 17, 299, 301, 321, 327, 328, 
 349, 430, 520 
 Matthie v. Edwards 602 o, 602 5, 602 ee, 
 
 770, 782 
 
 IMattocks V. Moulton 281, 460 
 
 IMattoon v. McGrew 145 
 
 Mattox V. Eberhart 780 
 
 Maud V. Maud 112 
 
 Maul r. Keder 210, 223, 851 
 
 r. Kider 851 
 
 Mauldin r. Armstead 264, 343, 602 e, 602 m 
 
 Maundrell v. Maundrell 511c 
 
 ISlaundv v. Maundy 182 
 
 MaunsL-U v. Hedges 208 
 
 Maupin v. Delany 6|8 
 
 Maverick, &c. Soc. v. Lovejoy 243 
 
 Maw V. Pierson 246 
 
 Maxwell r. Barringer 127, 498, 803 
 
 V. Finnic ^'5 
 
 V. Kennedy 229, -30 
 
 V. Pittinger 191 
 
 I'. Wettenhall 600 
 
 May I'. Armstrong 900 
 
 V. Frazer 404, 500 
 
 V. Mav 248, 274, 275 
 
 V. Selbv 884 
 
 f. Steele 126 
 
 V. Tavlor 328
 
 cu 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Mav's Heirs v. Frazer "79 
 
 Mayall v. Mayall 610, 7G4 
 
 May berry v. Neely 649 
 
 Maj'bury v. Briun 323 
 
 Mavcl V. Field 652 
 
 Maver v. Galluchat 432, 661, 895 
 
 'v. Gould 848 
 
 17. Montreon 509, 826, 827, 877, 884 
 
 V. PuUan 602 e 
 
 V. Townsend 360 
 
 Mayfield v. Clifton 639 
 
 V. Donovan 275 
 
 V. Forsyth 79, 84, 166, 8G5 
 
 V. Kegour 329 
 
 Mayham v. Coombs 232, 23G 
 
 Mayhew v. Crickett 210 
 
 MaVnard v. Cleveland 437 a 
 
 ■«. Tyler 189 
 
 t;. Williams 676 
 
 Maynel v. Massey 581 
 
 Mayor v. Davenport 2G0 
 
 V. Nixon 732 
 
 V. Williams 223 
 
 Maj'or of Coventry v. Att.-Gen. 42, 275 
 
 Mayor of London's Case 694, 699 
 
 Mavor of Lyons v. Advocate-General 
 
 of Bengal 727 
 
 Maj'or of Lyons v. East India Co. 741 
 
 Mayor of South Melton v. Att.-Gen. 745 
 
 Ma3'wood v. Lubcock 218 
 
 Mazelin v. Rouyer 277 
 
 Mazj-ck V. Vanderhost 380 
 
 Meacham v. Sternes 596, 918 
 
 Meachey v. Young 612 
 
 Mead v. Langdon 183 
 
 V. Merritt 72 
 
 V. Orrerv 217, 225, 809, 810, 811, 815 
 
 V. Phillips 591 
 
 Meads v. Martin 658 
 
 Meakings v. Cromwell 64, 499, 501 
 
 Means v. Rosevear 770 
 
 Meason v. Kaine 134 
 
 Mebane v. Mebane 386 a 
 
 Mechanics' Bank, In re 411, 413, 760 
 
 V. Der Bolt 816 
 
 V. Edwards 347 
 
 V. Gorman 592 
 
 V. Seton 242 
 
 Meconkey's Appeal 511 c 
 
 Medbur}' v. Watson 173 
 
 Medecai v. Parker 520 
 
 Medland, In re 457 
 
 Medley v. Davis 232 
 
 V. Horton 347, 670 
 
 Medlicott v. O'Donnell 228, 861 
 
 Medworth v. Pope 66 
 
 Meecham v. Steetle 305 
 
 Meek v. Briggs 827 n 
 
 V. Kettlewell 98, 100, 101, 102, 105, 111 
 
 Meeker v. Puvallup 705, 720 
 
 Meeting St. Bapt. See. v. Hail 312, 734, 748 
 
 Megargal v. Saul 232 
 
 Megargel u. Naglie 310 a, 652 
 
 Meggison v. Moore 112, 114, 116 
 
 Meggott V. Meggott 871 
 
 Megod's Case 17 
 
 Mehrtens v. Andrews 467, 869 
 
 Meigs V. Dimock 232 
 
 V. Meigs 103 
 
 Meikel v. Greene 39 
 
 Meinertzhagen v. Davis 55, 286, 297 
 
 Meldon v. Devlin 645, 848 
 
 Meldrum v. Scorer 873 
 
 Melery v. Cooper 238 
 
 Melick V. Voorhees 845 
 
 Mellick V. Asylum 706 
 
 Melling v. Leak 866 
 
 Mellingen i>. Bausmann 642 
 
 Mellish V. Robertson 184 
 
 Mellish's Estate 850 
 
 Mellor V. Porter 52 
 
 Melone)', In re 280 
 
 Memphis Barrel Co. v. Ward 242 
 
 Mence v. Mence 157 
 
 Meudenhall v. Leivy 658 
 
 V. Mower 276 a 
 
 Mendes v. Guedella 412, 418, 442 
 
 Mendon v. Merrill 98 
 
 Menier v. Hooper's Tel. Works 242 
 
 Mennard v. Welford 275, 284, 292 
 
 Mer. Man. Co. v. Smith 58G 
 
 Mercantile Nat. Bank v. Parsons 225 
 
 Mercein v. People 672 
 
 Mercer v. Hall 517 
 
 V. Stock 77, 140 
 
 Mercers' Co. v. Att.-Gen. 725 
 Merchant Tailor's Co. v. Att.-Gen. 725 
 
 Merchants' Bank, In re 275, 280 
 
 Merchants' Nat. Bank v. Haverhill 
 
 Iron Works 790 
 
 Merchants' Ins. Co. v. Abbott 790 
 
 Meredith v. Heneage 112, 113, 115, 116, 153 
 
 Merest v. James 13, 347 
 
 Merket v. Smith 127 
 
 Merino v. Munoz 127 
 
 Merkel's Estate 462 
 
 Merlin v. Blagrave 385, 476 a, 922, 928 
 
 Merriam v. Harsen 667 
 
 V. Hassam 860, 864 
 
 Merrick's Estate 462, 463, 468 
 
 Merrill v. Fowle 602 s 
 
 V. Moore 918 
 
 V. Neill 599 
 
 V. Peaslee 95 
 
 V. Smith 127 
 
 V. Swift 593 
 
 Merriott r. Givens 602 .9.9 
 
 Merritt v. Farmers' Ins. Co. 336, 337 
 
 V. Jenkins 918 n 
 
 V. Lambert 202 
 
 V. Lvon 6G4 
 
 V. M'erritt 448, 455 
 
 V. Wells 232, 239 
 
 V. Wilson 599 
 
 Merriweather v. Booker 633 
 
 Merrv v. Abney 277 
 
 v. Rvves 517, 519 
 
 Mersey Docks, &c. v, Gibbs 744, 914 
 
 Mershon v. Duer 324 
 
 Mervin, In re 382 
 
 Meserole v. Meserole 398 
 
 Mesgrett v. Mesgrett 511, 517, 518, 519 
 
 Messena v. Carr 547 
 
 Messenger v. Clark 664 
 
 V. Gloucester 694 
 
 Messingbred, Re 457 
 
 Mestaer v. Gillespie 181 
 
 MetcaU v. Cook 655, 661
 
 INDEX TO CASES CITED. 
 [References are to aectioiu.] 
 
 cm 
 
 Motcalf r. FraminRham Parish 451 
 
 Metcalfe i'. Ilutciiinsou 581 
 
 Metford Schdol l.jfi 
 
 Median v. Devon 8G, 'J3 
 
 Methodist Church v. Jaques 655, fifiO, Gt;5 
 V. Kemniiiigtou 40, 715, 724, 728, 7.11. 
 
 748 
 V. Stpwart 41. 'J 
 
 V. Warren 748 
 
 Methodiift Soc. of Georgetown r. Ben- 
 nett 
 Met hold V. Turner 
 
 Metropolitau Nat. Bank v. Campbell C 
 Co. 
 
 518 
 C15 
 
 V. Ropers 
 Men re v. Men re 
 Meux r. Bell 
 
 V. Howell 
 
 I'. Maltby 
 Mews V. Mews 
 Meyer r. llolie 
 
 I'. Sinionson 
 Meyer's Appeal 
 Michael v. Baker 
 
 r. Jones 
 Michael's Trusts, In re 
 Michell I'. Michell 
 
 828 
 
 147 
 
 366, 371, 372 
 
 105 
 
 590 
 
 71, 72, 885 
 
 604 
 
 131 
 
 457, 458, 551 
 
 918 
 
 32 
 
 437 a 
 
 671 
 
 671 
 
 Michigan State Bank v. Gardner 243 
 
 Michoud V. Girod 195, 197, 205, 207, 229, 
 230, 745, 855 
 Middaugh v. Fox 805 
 
 Middlebrook v. Merchants' Bank 331 
 
 Middleton v. Clithrow 701 
 
 V. Dodswell 484,818, 819 
 
 V. Middleton 169, 181, 183 
 
 V. Keav 293 
 
 V. SpiJer 61, 327, 427, 437, 701 
 
 Midland Counties Railw. Co. r. West- 
 combe 494 
 Midland Great Western Railw. v. John- 
 
 son 
 
 
 184 
 
 Midlcott V. O'Donel 
 
 
 855 
 
 Midnier r. Midmer 
 
 
 138 
 
 Miggett's Appeal 
 
 
 195 
 
 Mikel V. Mikel 
 
 
 914 
 
 Miibank r. Collier 
 
 
 885 
 
 Mildniay r. Mildmay 
 
 
 220 
 
 Miles !'. Baoon 
 
 596. 
 
 891, 910 
 
 V. Durnford 
 
 225,809,810, 811 
 
 V. Ervin 
 
 
 202 
 
 V. Fisher 
 
 
 320 
 
 V. Knight 
 
 
 765 
 
 V. Leigh 
 
 
 569 
 
 V. Neave 
 
 
 270 
 
 I'. Thome 
 
 
 800 
 
 V. Wheeler 
 
 
 205, 805 
 
 Miles's Will, /n re 
 
 
 4.55 
 
 Millions t». Dunham 
 
 
 458, 814 
 
 Jlillar «>. Craig 
 
 
 923 
 
 Millard v. Eyre 
 
 275, 282. 
 
 283, 293 
 
 V. Hathawny 
 
 126. 
 
 137, 803 
 
 Millard's Case 
 
 219, 
 
 521, 828 
 
 Milledge v. Lamar 
 
 
 546 
 
 Millen V. Giierrard 
 
 
 547 
 
 Miller t'. Atkinson 
 
 700 
 
 720, 748 
 
 V. Antle 
 
 
 215 
 
 V. Argyle 
 
 
 602 ee 
 
 V. Baker 
 
 
 145, 803 
 
 V. Beverleys 324, 464, 468, 910, 912, 918 
 
 Miller t». Bingham 
 
 V. Blose 
 
 V. Brown 
 
 r. (Jhittenden 
 
 V. CAark 
 
 V. Congdon 
 
 V. Conklin 
 
 V. Cotton 
 
 V. Cramer 
 
 V. Davis 
 
 V. Evans 
 
 r. Fenton 
 
 V. Franciscus 
 
 V. Ciable 
 
 V. Harwell 
 
 V. Hiiie 
 
 V. Hull 602 <, 
 
 V. Knight 
 
 V. Lerch 
 
 V. Macomb 
 
 I'. Mclntire 
 
 V. Meetch 248, 
 
 V. Miller 
 
 r. Morrison 
 
 V. Pearce 
 
 V. Porter 697, 
 
 V. Priddon 
 
 V. Proctor 
 
 V. Race 
 
 V. Hosenberger 
 
 V. Rowan 
 
 V. Rutland, &c. Railway 
 
 V. Scamnion 
 
 V. Sharp 
 
 r. Stanley 
 
 I'. Stokely 
 
 V. Stump 
 
 t'. Texas & Pac. Ry. Co. 
 
 V. Thatcher 
 
 V. Welles 
 
 V. Wetherby 
 
 V. Whittier 
 
 V. W'illiams 
 
 V. Williamson 
 V. W^ilson 
 Miller's Case 
 
 Estate 606, 
 
 Millet V. Rowse 
 Milligan v. Mitchell 
 
 I'. Pleasants 
 Milliken v. Ham 
 Milling V. Leak 
 Millinger v. Bausman 
 Mills V. Argall 
 
 r. Banks 578, 
 
 t". Britton 
 V. Davison 
 V. Dugmore 
 
 V. Farmer 156, 693, 705. 
 724, 
 I'. Hoffman 
 V. Hurd 
 
 r. Mills 428,440,451,455 
 V. Newbury 
 V. Osborne 
 V. Post 
 V. Robarts 
 r. Swearingen 
 t'. Tavlor 
 
 646, 6.52. 653 
 133, 141, 143 
 080 
 384, 748 
 82 
 263, 574 
 592 
 226 
 920 
 165, 612 
 774, 779 
 879 
 230 
 733, 734, 748 
 562, 573 
 685 
 602 w, 602 aa 
 282 
 42, 45 
 380 
 228, 855 
 262, 308, 499 
 547, 672 
 863 
 181 
 715,731, 748 
 284, 806, 808 
 441, 458, 927 
 837 
 351 
 705, 712 
 757 
 167 
 82 
 638 
 137 
 324 
 610 
 75 
 178 
 685 
 911 
 664 
 655, 660, 810 
 162 
 17 
 609, 639, 918 
 6.36 
 7.34, 816 
 457, 472 
 126 
 860 
 676 
 599 
 581, 597, 768 
 545 
 384 
 773 
 708,714.719. 
 725, 729, 739 
 452 
 166 
 , 467, 547, 848 
 732 
 438, 453 
 828 
 616 
 828 
 783
 
 CIV 
 
 Millspaugh v. Putnam 
 Miliiio's Succession 
 Milner v. Culmer 
 
 V. Freeman 
 
 V. Ilyland 
 
 V. liucker 
 
 V. Stanford 
 
 V. Turner 
 Milner's Settlement, Re 
 Milnes v. Slater 
 Milroy v. Lord 
 Milsington v. Mulgrave 
 Mimms v. Delk 
 Minis I'. Chandler 
 
 V. Mackliri 
 Minchin v. Minchin 
 
 V. Nance 
 Mines v. Lockett 
 
 V. Mason, &c. R. R. 
 Minet v. Hvde 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 98 
 
 44;j 
 
 C.53 
 
 126, 147 
 
 828 
 
 206 
 
 147 
 
 35 
 
 671 
 
 563 
 
 96, 100, J 02 
 
 508, 532, 534 
 
 490 
 
 133 
 
 299 
 
 76 
 
 122 
 
 232, 237 
 
 232, 237 
 
 630 
 
 V. Vulliamy 
 
 
 741 
 
 Minneapolis Trust Co. v 
 
 Menage 
 
 453 
 
 Minor v. Wicksteed 
 
 
 569 
 
 Minot V. Amory 
 
 
 551 
 
 V. Boston Asylum 
 
 
 730 
 
 V. Mitchell 
 
 135, 
 
 172, 215 
 
 V. Paine 
 
 
 545 
 
 V. Prescott 
 
 
 783, 785 
 
 V. Thompson 
 
 
 547 
 
 Minton v. Pickens 
 
 
 828 
 
 Minturn v. Seymour 
 
 97 
 
 , 98, 367 
 
 Minuse v. Cox 462, 
 
 568, 780, 
 
 782, 894 
 
 Mirehouse v. Seaife 
 
 569, 
 
 570, 573 
 
 Missionary Society 
 
 
 730, 748 
 
 Mitchell, 'lie 
 
 
 875 
 
 tJ. Adams 
 
 
 264 
 
 V. Beal 
 
 
 590 
 
 V. Bower 
 
 
 584 
 
 V. Bunch 
 
 
 72 
 
 V. Colburn 
 
 437 a, 539 
 
 V. Colglazier 
 
 
 127 
 
 V. Corbett 
 
 
 769 
 
 V. Gates 
 
 
 647 
 
 i;. Gazzam 
 
 
 586 
 
 V. Holmes 
 
 
 918 
 
 V. Kingman 
 
 
 35 
 
 V. Mitchell 
 
 578, 
 
 584, 684 
 
 V. Murphy 
 
 
 920 
 
 V. Nixon 
 
 
 291 
 
 V. O'Neil 
 
 
 137 
 
 V. Otej' 
 
 
 677 
 
 V. Pitner 
 
 
 282 
 
 V. Rice 
 
 
 262 
 
 V. Sevier 
 
 
 628 
 
 V. Stiles 
 
 
 590 
 
 t'. Thomson 
 
 
 869 
 
 V. Whitlock 
 
 
 437 fl 
 
 V. Winslow 
 
 
 68 
 
 Mitchell's Estate 
 
 
 560 
 
 Mitchelson v. Piper 
 
 
 474 
 
 Mitchum v. Mitchum 
 
 
 205 
 
 Mitford V. Mitford 
 
 239, 633 
 
 635, 641 
 
 V. Reynolds 41, 47. 61, 697, 704, 706, 
 712, 720, 741 
 
 Mittenberger v. Schlegel 576 
 
 Mix V. King 181 
 
 Mobile, &c. Railway v. Tolman 754, 757 
 
 Mobile Life Ins. Co", v. Randall 828 
 
 Mocatta v. Murgatroyd 347 
 
 Moddewell v. Keever 
 Modrell v. Riddle 
 Mollatt v. Bingham 
 V. McDonald 
 V. McDowall 
 V. Tuttle 
 Mogg V. Hodges 
 Mogg v. Mogg 
 Moggeridge v. Grey 
 
 599 
 
 137 
 
 864 
 
 127, 836 
 
 585 
 
 815 6 
 
 57 
 
 385, 390 
 
 275 
 
 V. Thackwell 
 
 Mohn V. Mohn 
 Mohun V. Mohun 
 Moir V. Brown 
 Moke V. Norrie 
 Mole V. Mole 
 
 V. Smith 
 Mollan V. Griffith 
 Molony, In re 
 
 V. Kenned}' 
 
 V. Kernan 
 Molton V. Camroux 
 
 V. Morton 
 Molum V. Molum 
 Molyneux v. Fletcher 
 Monahan v. Gibbons 
 Monday v. Vance 
 Monelfw. Monell 
 
 156, 690, 693, 705, 714, 
 719, 722, 724, 729, 739 
 86 
 747 
 273 
 59, 297 
 616 
 347 
 562, 573 
 901 
 626 
 206, 219 
 189 
 684 
 891, 894. 896 
 145 
 421 
 104 
 416, 419, 421 
 Money v. Herrick 75, 132, 133, 137, 181 
 MoneA'penny v. Bristow 871 
 
 i. Dering 376, 385, 390 
 
 Monk V. Mawdesley 511 c 
 
 Monks V. Monks " 903 a 
 
 Monro v. Allaire 195, 199 
 
 Monroe v. James 262 
 
 Monroe Cattle Co. v. Becker 127 
 
 Montacute v. Maxwell 226 
 
 Montagu, Jn re 603 
 
 V. Pacific Bank 122 
 
 Montague v. Dawes 199, 495, 602 w, 602 x, 
 
 602 fjg 
 
 V. Gamett 843 
 
 V. Haves 82 
 
 Montefiore, jEx parte 836 
 
 V. Behrens 630 
 
 V. Browne 784 
 
 Montesquieu v. Sandvs 188, 202 
 
 Montford v. Cadogan 260, 261, 467, 532, 
 
 534, 847, 848. 849, 877 
 
 Montgomery v. Agricultural Bank 661 
 
 V. Bath 873, 882 
 
 V. Beavan 929 
 
 V. Commercial Bank 588 
 
 V. Dorion 55 
 
 V. Eveleigh 661 
 
 V. Hobson 230 
 
 17. Johnson 261 
 
 V. McElroy 569 
 
 V. McEwen 602 77 
 
 V. Milliken .500 
 
 Montgomery's Appeal 91 8 n 
 
 Montpelier v. F>. Montpelier 275 
 
 Montpelier Seminary y. Smith's Estate 
 
 729 
 Moodv, In re 618 
 
 v. Fan- 328 
 
 V. Fulmer 500, 518 
 
 V. C-jv 72 
 
 V. Vandyke 195, 205, 500
 
 INDEX TO CASES CITED. 
 [Beferencea are to sectiona.] 
 
 CV 
 
 Moody & M. Co. I' 
 
 Trustees 
 
 
 467 
 
 M00U8 r. De bernales 
 
 
 464, H47 
 
 Moor's Appeal 
 
 
 
 'J24 
 
 Moorcroft r. Dowd 
 
 Dg 
 
 
 82, 400 
 
 Moore, In re 
 
 
 
 512 
 
 V. Hlack 
 
 
 
 871 
 
 V. Blake 
 
 
 
 877 
 
 V. IJrackin 
 
 
 
 203 
 
 I'. IJurnet 
 
 
 17 
 
 328, 5-20 
 
 V. liiirrows 
 
 
 
 231 
 
 V. ( aiiipbell 
 
 
 
 171 
 
 V. Clay 
 
 
 
 219 
 
 V. ("k-giiorn 
 
 
 
 357 
 
 I'. Crawford 
 
 
 
 147, 1G9 
 
 V. Crofton 
 
 
 107 
 
 108, 109 
 
 V. Darton 
 
 
 
 87 
 
 V. Diinond 
 
 
 254, 511 b 
 
 V. Ellis 
 
 
 
 673 
 
 V. Eure 
 
 
 
 443 
 
 V. Erowd 
 
 432, 
 
 894, 
 
 895, 004 
 
 V. Green 
 
 
 
 135 
 
 V. llalcombe 
 
 
 
 233, 239 
 
 V. llamerstag 
 
 
 
 127, 171 
 
 V. IlaiiiiltoQ 
 
 
 
 453 
 
 V. Harris 
 
 
 
 653 
 
 r. Henderson 
 
 
 
 880 
 
 V. Hilton 
 
 
 
 205 
 
 V. Horsley 
 
 
 79, 
 
 131, 212 
 
 V. Hus.sey 
 
 
 
 48 
 
 V. Jackson 
 
 
 
 349 
 
 r. Jones 
 
 
 
 640 
 
 r. I^ampkin 
 
 
 
 815 6 
 
 I'. Loekett 
 
 
 
 706 
 
 V. McGlynn 
 
 
 
 4GG 
 
 V. Moore 97, 133, 137, 145, 381, 600, 
 
 627, 629, 632, 665, 670, 671, 721, 
 
 724, 728, 731, 748, 931 
 
 V. Morris 647, 6(;8 
 
 V. Trance 900 
 
 r. Kavmond 238 
 
 I'. liead 191 
 
 r. Robbins 448 
 
 V. Scarborough 665 
 
 V. Sheppard 863 
 
 V. Shultz 298, 310, 498 
 
 V. Simonson 477 
 
 V. Smith 929 
 
 V. Stinson 310 
 
 r. Tandv 421 
 
 r. Thornton 633 
 
 r. Vinten 878 
 
 V. Waco 358 
 
 7'. Zabriskie 918 
 
 Mnorhead's Estate 520 
 
 Mnorliniise V. Calvin 208 
 
 Moorman f. Arthur 147 
 
 ('. Crockett 279 
 
 IMoors <•. Wyman 918 n 
 
 I\Iora r. Manning 849 
 
 Moraii r. Moran 171, 715 
 
 !". Somes 79 
 
 Moravian Soc, In re 284 
 
 Mordecai v. Parker 17, 328 
 
 r. Schirmer 499 
 
 Morden »•. Chase 299 
 
 More r. Roimett 21 
 
 r. Calkins 260, 767, 910 
 
 V. Freeman 672 
 
 V. May how 219, 220, 221 ' 
 
 ! Morehead v. Brown 918 
 
 Moreland r. Brown 122 
 
 .Moreton i'. Harrison 232, 234, 238 
 
 Morey r. Herrick 133, 181, 215 
 Morftew v. Sau Francisco, &c. li. Co. 254, 
 
 312 
 
 Morgan, Kx parte 209, 336, 337, 870 
 
 Morgan, In re 378 
 
 V. VAdxn 661 
 
 r. Halford 227 
 
 V. lianuas 918 
 
 V. lliggins 20 
 
 V. Honians 432 
 
 V. Malison 96, 97, 101 
 
 V. Morgan 324, 397, 450, 451, 547, 
 
 551,584, 871 
 
 V. Otey 456 
 
 V. Rogers 299 
 
 f. Stephens 907 
 
 V. Thomas 358 
 
 Moriarty r. Martin 112, 254 
 
 Morice v. Durham 116, 150, 157, 159, 507, 
 
 697,703,711,712 
 
 Morison v. Morison 907, 910 
 
 Morley, In re 348 
 
 v'. Bird 136 
 
 V. Hawke 840 
 
 V. Loughman 189 
 
 V. Morley 347, 441, 914 
 
 r. Iteniioldson 515 
 
 Morley 's Trusts 337 
 
 Mornington v. Keane 122 
 
 V. Selbv 183 
 
 Morony v. Vincent 892 
 
 Morrel'l r. Dickey 891 
 
 Mt)rret i-. Paske 206, 430, 431 
 
 Morrill r. Lawson 878, 881 
 
 Morriman's Trusts 633 
 
 Morris r. Burroughs 201 
 
 V. Clare 131 
 
 V. Hanson 143 
 
 V. Joseph 206 
 
 V. Kent 272 
 
 V. McCulloch 214 
 
 V. Morris 162, 540, 610. 771 
 
 V. Mowatt 562 
 
 V. Nixon 206, 226 
 
 V. Preston 290 
 
 V. Remington 72 
 
 V. Thompson 748 
 
 V. Wallace 456, 459 
 
 V. Way 44, 602 t 
 
 Aforris's Appeal 600 
 
 ]\Iorris Canal ;•. F.mmet 174 
 
 ]Vrorrissey r. Mulhern 658 
 
 Morrison, In re 623 
 
 V. Bean 602 77 
 
 V. Reirer 731, 7'4'8 
 
 I'. Kellv 296 
 
 V. Konstra 447, 463 
 
 V. McLeod 189, 191 
 
 V. Moat 67 
 
 V. Morrison 432 
 
 V. Thomas 202 
 
 Morrow v. IVvton 426 
 
 Morse r. Crofoot 600 
 
 r. Hill 195, 229 
 
 r. Mason 680 
 
 V. Morse 82
 
 CVl 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Morse v. Royal 195, 197, 209, 228, 428, 801, 
 
 809 
 
 Mortimer v. Ireland 294, 340, 494, 495 
 
 V. Moffatt 541 
 
 V. ricton 455 
 
 V. Shortall 226 
 
 V. Watts 508, 5;i2 
 
 Mortiinore v. Mortimore 400 
 
 Mortlock V. Buller 109, 176, 498, 507, 539, 
 
 770, 775, 777, 779, 781, 784, 787 
 
 Morton, In re 494 
 
 V. Adams 458, 910 
 
 V. Barrett 305, 891, 894, 910 
 
 V. Naylor 08 
 
 V. Southgate 511 
 
 V. Tewart 82, 83 
 
 Morton and Hallett, In re 339 
 
 Morville v. Fowler 412, 701 
 
 Mory V. Michael 32, 511 c 
 
 Mosby V. Steele 37 
 
 Moseiev v. Eastern R. R. Co. 550 
 
 V. Marshal 329, 539, 540, 547 
 
 V. Moseley 249, 257 
 
 Mosely v. Garrett 232 
 
 Mosely & Eley r. Norman 815 6 
 
 Moser r. Lebenguth 184 
 
 Moses V. Levi 419, 422, 423 
 
 V. Murgatroyd 98, 343, 414, 593, 594, 
 
 602/; 891 
 
 Moshier v. Knox College 246 a 
 
 Mosley v. Ward 900 
 
 Moss V. Bainbridge 202 
 
 V. McCall 647 
 
 Moss's Appeal 547 
 
 Moth V. Atwood 183, 187, 188 
 
 Mott V. Buxton 305 
 
 V. Clark 218, 222 
 
 V. Harrington 202 
 
 Moulton V. De M'Carty 614 
 
 V. Halev 143, 676 
 
 Mounce v. Byars 232, 239 
 
 Mountford, Ex parte 613, 617 
 
 V. Scott 222 
 
 Mouslev V. Carr 468, 901 
 
 Movan 'v. Hays 76, 79, 105, 226 
 
 Mower v. Hanford 590 
 
 Moyle V. Movie 259, 417, 443, 462, 563 
 
 Moyse V. Gyles 136 
 
 Mozingo V. Ross °63 
 
 Mucholland r. Belfast 770 
 
 Muckenfoss v. Heath 918 
 
 Muckleston v. Brown 84, 90, 93, 151, 160, 
 
 165, 216 
 
 V. Tuller 262, 416, 419, 438, 440 
 
 Mudge V. Brown 672 
 
 Muffett, In re 548 
 
 Muggeridge's Trusts 388, 555 
 
 Muir B. Cross 232 
 
 V. Schenck 438 
 
 V. Trustees 182 
 
 Mulcahy v. Kennedy 801 
 
 Miildrow V. Fox 499 
 
 Mulforrl V. Shurk 591 
 
 V. Winch 205 
 
 Mulhallen i'. Marum 200, 229, 230 
 
 Mulholland ?'. York 1"1 
 
 Mullen V. Bowman 152 
 
 V. Dovle 428 
 
 V. McKim 137 
 
 Muller, In re 468 
 
 Mulligan v. Mitchell 745 
 
 Mullins V. Mullins 79 
 
 Mulrein v. SmiUie 477 
 
 Mulry V. Mulry 277 
 
 Mulvanev v. Dillon 196 
 
 Mumford v. Murray 418, 419, 463, 408, 
 
 594, 026, 032, (;45 
 
 Mumma v. Mumraa 54, 143, 146 
 
 V. Potomac Co. 242 
 
 Mumper's Appeal 891 
 
 Munch V. Cockerell 404, 417, 454, 403, 
 
 407, 847, 851, 875, 878, 881, 923 
 
 Munden v. Bailey 815 a 
 
 Mundine v. Pitts 218 
 
 Mundy v. Howe 612 
 
 V. Mundy 871 
 
 V. Vattier 598, 602^ 
 
 Munnerlyn v. Augusta S. Bank 122, 443 
 
 Munro v. Collins 
 
 
 
 128 
 
 Munson i'. S. G. & C. R 
 
 R. Co. 
 
 129 
 
 Muntorff v. MuntorfE 
 
 
 
 891 
 
 Murdoch v. Finney 
 
 
 
 438 
 
 V. Hughes 
 
 
 
 863, 805 
 
 Murdoch's Case 
 
 
 
 199 
 
 Murdock v. Bridges 
 
 
 
 712 
 
 V. Johnson 
 
 
 
 783 
 
 Murless v. F>anklin 
 
 126, 
 
 143, 
 
 145, 146, 
 147 
 
 Murphey v. Cook 
 
 
 
 351 
 
 Murjjh}-, In re 
 
 
 
 555 
 
 V. Abraham 
 
 
 
 555 
 
 V. Bell 
 
 
 
 590 
 
 V. Bright 
 
 
 
 685 
 
 V. Carlin 
 
 
 
 114 
 
 V. Dallam 
 
 
 
 748 
 
 V. Doyle 
 
 
 
 460 
 
 V. Grice 
 
 
 
 626 
 
 V. Hubert 
 
 
 
 75 
 
 V. Moore 
 
 
 
 330 
 
 V. Nathans 
 
 
 
 144 
 
 V. Peabody 
 
 
 
 126, 139 
 
 V. Whitney 
 
 
 
 ^82 
 
 Murphy's Estate 
 
 
 
 720 
 
 Murray v. Able 
 
 
 
 238 
 
 V. Addenbrook 
 
 
 
 380, 381 
 
 V. Ballou 
 
 
 
 217, 221 
 
 V. Barlee 
 
 657 
 
 658 
 
 002, 003 
 
 V. Blatchford 
 
 
 
 425 
 
 V. Cosier 
 
 
 
 228 
 
 V. Dehon 
 
 
 
 503 
 
 i\ De Rottenham 
 
 
 
 915 
 
 V. Elibank 
 
 626, 
 
 627, 
 
 630, 645 
 
 V. Feinour 
 
 459 
 
 405 
 
 406, 407 
 
 V. Glass 82 
 
 454, 
 
 544, 
 
 545, 551 
 
 V. Green 
 
 
 
 671 
 
 V. Lylburn 
 
 
 
 836, 842 
 
 V. Murphy 
 
 
 
 182 
 
 V. Murray 
 
 
 
 122 
 
 r. Palmer 
 
 
 171, 
 
 187, 230 
 
 V. Pinkett 
 
 
 
 835 
 
 V. Sell 
 
 
 
 126 
 
 V. Vanderbilt 
 
 
 
 199, 207 
 
 Murrell v. Cox 
 
 416, 
 
 421 
 
 423, 809 
 
 Murthwaite v. Jenkenson 
 
 
 305, 308 
 
 Muscogee Lumber Co. v 
 
 Hyer 
 
 918 w 
 
 Muse V. Sawyer 
 
 
 
 203 
 
 Musham v. Mushara 
 
 
 
 127 
 
 Muskerry v. Chinnery 
 
 
 
 530
 
 INDEX TO CASES CITED. 
 [References are to sectiona.] 
 
 cvu 
 
 Musselman i'. Eshelman 
 
 20.5 
 
 Mus.sey v. Mussey 
 
 8o;j 
 
 V. Noves 
 
 5'JO 
 
 Mussoiirie Bank v. Raynor 
 
 114 
 
 Musters V. Wright 
 
 C-20 
 
 Mut. Ace. Ass'ii V. Jiicobs 
 
 82cS 
 
 Mutual Life Ins. Co. r. Armstrong 
 
 181 
 
 V. Everett 
 
 248 
 
 I'. Woods 
 
 2tJ4 
 
 Myatt c. St. Helen's, &c. Railw. 
 
 -hi) 
 
 Myercoiii^h, Ex parte 
 
 017 
 
 Myers, lit 454 
 
 408 
 
 V. Board of Education 
 
 828 
 
 V. .lack son 137, 162 
 
 2U'J 
 
 V. McHride 
 
 Ulc 
 
 V. Mvers 70, 84, 89, 139, 471, 
 
 012, 
 
 627 
 
 910 
 
 V. Perigal 
 
 80 
 
 V. Trustees of Schools 
 
 275 
 
 V. Wade 
 
 618 
 
 V. Zelelle 
 
 450 
 
 Myers's Appeal 200 
 
 918 
 
 Myetsky v. (joery 
 
 685 
 
 Myler v. Fitzpatrick 240, 
 
 907 
 
 N. 
 
 Nab V. Nab 
 Nace V. Hoyer 
 Naj;!e i'. Hayler 
 Na^jle's Estate 
 Naj^lee v. Iiij^ersoll 
 Nail r. I'unter 
 Nairn r. Majoribanks 
 
 V. I'rowse 
 Naklred v. Uilham 
 Nance v. Coxe 
 
 V. Nance 
 Nanney v. Martin 
 
 V. Williams 
 Nantes r. ( "orrock 
 Naiitz V. Mcl'lieraon 
 Napier r. Howard 
 
 V. Napier 
 Narron j'. Wilmington & W. R. Co 
 Nash r. Alien 
 
 r. Coates 
 
 82, 84, 85, 80, 90 
 194 
 191 
 
 297, 506, 709 
 
 005 
 
 407, 849 
 
 477,552, 9i;5 
 2.i0 
 103 
 541 
 
 122, 457, 400 
 
 039 
 
 18], 182 
 
 189, 002, 003 
 
 219 
 
 627, 632, 030. 045 
 
 020, 032, 030 
 765 
 310 
 312 
 
 Nasln 
 
 V. Minnesota Title Co. 
 
 V. Morely 
 
 V. Nash 
 
 V. Ober 
 
 V. I'reston 
 
 V. Spofford 
 
 i; 
 
 699, 711, 712 
 640 
 560 
 322 
 240 a 
 
 ille Trust Co. v. Lannon 145, Ui2 
 V. Sinythe 238 
 
 Nathans r. ^[orrls 918 
 
 National Bank, &c. v. Lake Shore. &c. 
 
 K. K. Co. 242 
 
 V. Ellicott 122 
 
 r. .Smith 7<J0 
 
 National, i^^ic. Building Society, In re 453 
 National Exch. Co. r. Drew " 172 
 
 National Revere Bank v. Morse 7it0 
 
 National Webster H'k v. Eldridge 284 
 
 Naiimiin r. Weidman 700 
 
 Naiindorf r. Sclmmann 511 f 
 
 Naylor v. Arnitt 305, 307, 329, 484, 
 
 528 
 
 Naylor v. Godman 
 
 V. Wyiich 
 Nazareth, &c. t;. Lowe 
 Neal V. Black 
 V. Bleckley 
 t'. Maxwell 
 Neale, In re 
 V. Davies 
 V. Ilaythrop 
 V. Neale 
 Neally v. Ambrose 
 Nearpass v. Newman 
 Nebraska Nat. Bank v. Johnson 
 Nedby v. Nedby 
 Needfiam, In re 
 Needler's Case 
 Needles v. Martin 
 I'. Needles 
 t'. Winchester 
 Neel V. McElkeimy 
 Neeley v. Anderson 
 Neely v. Steele 
 Neeson v. Clarkson 
 Xeeves v. Burrage 
 Neff's Appeal 
 Negroes v. Palmer 
 Neil V. Kinney 
 Neill I'. Keese 
 Neilson v. Blight 
 V. Cook 
 V. Lagow 
 Neiinawicz r. Gahn 
 Nelson v. Bridport 
 V. Callow 
 V. Cornwall 
 I'. Davis 
 V. Duncombe 
 V. Hagerstown Bank 
 V. Lee 
 
 V. jMcDonald 
 V. f)ldfield 
 r. Rat I iff 
 V. Seaman 
 V. Stocker 
 V. Worrall 
 Nesbitt V. Berridge 
 t'. Tredennick 
 V. Turner 
 Nestiiith, In re 
 Ness V. Davidson 
 Nestal V. Schmidt 
 Nester v. Gross 
 Nettle's Charity, In re 
 Nettleship v. Nettleship 
 Nettleson r. Stei)hensou 
 Neustadt v. .Joel 
 Nevarre v. Rutton 
 Neves v. Scott 
 
 185 
 
 Nevil V. Saunders 
 Nevill V. Nevill 
 Neville r. Fortescue 
 
 t'. Thacker 
 
 V. Wilkinson 
 Nevin, In re 
 Nevift r. Gibson 
 New r. Bonaker 
 
 V. Hunting 
 
 V. Jones 
 
 .378 
 llt9 
 2.J9 
 104 
 612, 800 
 932 
 613 
 433 
 126 
 185 
 590 
 104 
 181, 837 
 607 
 259 
 849 
 748 
 188, 039 
 48 
 864 
 206 
 783 
 231 
 474 
 438, 441, 914, 927 
 114 
 232, 239 
 81, 127, 138 
 98, .593 
 914 
 62, 64, 312, 320 
 554, 007 
 72, 74 
 506 
 803 
 299, 305, 312, 357 
 915 
 468, 809 
 010 
 658 
 182 
 104 
 878 
 930 
 1.37 
 183 
 129, 196, 538 
 658 
 910 
 448 
 135 
 207 
 735 
 665 
 395, 397 
 596 
 863 
 359, 301, 367. 
 370 
 305. 310 
 119 
 451, 406 
 358 
 171 
 603 
 171 
 47, 741 
 593 
 904
 
 CVIU 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 New V. Nichol 526 
 
 New Eughuul Tr. Co. v. Eaton 547 
 
 Newark Meth. Episc. Cli. v. Clark 38G, 
 
 748 
 Newberg, &c. Co. v. Miller 701 
 
 Newberry r. Blatcbford 732 
 
 Newbery, In re ^^(3 
 
 Newburgli v. Bickerstafie 87] 
 
 Newcastle v. Lincoln 364, 373 
 
 Newconibe v. Keteltas 528 
 
 V. St. Peter's Church 748 
 
 V. Williams 263, 272, 426, 5J4 
 
 Newcomen v. Hassard 058 
 
 Newdigate v. Newdigate 540 
 
 Newels v, Morgan 126, 14'J 
 
 Newen, In re 289, 329 
 
 New England Bank v. Lewis 593, 594 
 
 New England M. S. Co. i'. Buice 253 
 
 New England Theosophical Corp. v. 
 
 Boston 712 
 
 Newhall, Ex parte 37 
 
 V. Wheeler 299, 312, 843 
 
 Newill V. Newill 380 
 
 Newlaiid v. Att'y-Gen. 704 
 
 V. Champion 225 
 
 Newlands v. Faynter 647, 648, 653 
 
 Nevvlin v. Freeman 655, 660 
 
 Newman v. Barton 244 
 
 V. Early 143, 229 
 
 V. Jackson 602 i, 602 q, 602 r, 602 <,a, 
 
 762, 782 
 
 V. James 648 
 
 V. Johnson 569 
 
 V. Jones 849 
 
 V. Meek 188 
 
 V. Montgomery 330 
 
 V. Favne 202, 203 
 
 V. Warner 273, 503 
 
 V. Williams 574 
 
 New Market v. Smart 748 
 
 Newmeyer's Appeal 733 
 
 New Orleans v. McDonogh 748 
 
 Newport V. Brvan 260 
 
 V. Cook " 615, 616 
 
 Newsome v. Flowers 433, 803 
 
 Newson v. Buffalow 226 
 
 V. Thornton 243 
 
 New South B. Co. v. Gann 103 
 
 New Statehouse, In re 41 
 
 Newstead v. Searles 222, 367 
 
 Newton, In re 603 
 
 V. Askew 104, 111, 821 
 
 V. Bennett 464, 468, 501, 901, 902 
 
 V. Bronson 71, 402, 409, 779 
 
 V. Egmont 885 
 
 V. Hunt 188 
 
 1!. Marsden 514 
 
 V. Metropolitan R. Co. 812 
 
 V. Pelham 84 
 
 V. Forter 128, 135, 211 
 
 V. Preston 137 
 
 V. Reid 652 
 
 V. Swazey 84, 231 
 
 New York, &c. v. Stillman 334 
 
 New York Ins. Co. v. Elv 44 
 
 V. Roulet ■ 843 
 
 New York Life Ins. Co., In re 545 
 
 1'. Baker 453 
 
 V. Kane 453, 467 
 
 New York Life Ins. Co. v. Sands 453 
 New York Security Co. v. Saratoga 
 
 Gas Co. 279 
 
 Nevland v. Bendv 137, 816 a 
 
 Niblack v. Park Nat. Bank 87 
 
 Nice's Appeal 652 
 
 Nicholls, In the Goods of 929 
 
 V. Nicholls 192 
 
 V. Peak 598, 794 
 
 Nichols V. Allen 711 
 
 V. Baxter 602 «; 
 
 V. Campbell 204, 343 
 
 V. Eaton 386 «, 388 
 
 V. Emerv 79, 104 
 
 V. Hodges 918 
 
 V. Lew 386 a 
 
 V. McEwen 590, 918 
 
 V. Nichols 122 
 
 V. Palmer 672 
 
 V. Postlethwaite 570 
 
 V. Rogers 276 
 
 Nichols, Appellant 467, 863 
 
 Nicholson v. Faulkiner 888 
 
 V. Field 290 
 
 V. Halsev 347 
 
 V. Leavitt 586, 590, 591 
 
 V. Tutin 593 
 
 Nickell V. Handler 305, 386 a, 652 
 
 Nickels v. Philips 276 
 
 Nickerson v. Buck 891 
 
 Nickolls V. Gould 188 
 
 Nickols V. Thornton 126 
 
 Nickolson V. Knowles 246 
 
 Nicoll V. Miller 259 
 
 V. Mumford 593, 594 
 
 V. Ogden 259 
 
 V. Walworth 17, 312, 318, 328 
 
 Nicolson V. Wordsworth 270, 271, 273, 
 
 503 
 
 Niell V. Morley 35 
 
 Nightingale v. Burrell 380 
 
 V. Goulbourn 41, 47, 61, 704, 720 
 
 V. Harris 592 
 
 r. Hidden 299, 324, 647 
 
 V. Lawson 533 
 
 V. Lockman 639 
 
 V. Nightingale 104 
 
 Niles, Re 848 
 
 V. Stevens 402, 499 
 
 Nimmo v. Davis 188 
 
 Nims V. Bigelow 684 
 
 Niolon V. Doufflas 585, 592 
 
 V. McDonald 910 
 
 Nisbett V. Murray 903 a 
 
 Niver v. Crane 126, 133 
 
 Nix V. Bradley 646, 650, 655 
 
 Nixon r. Rose 647, 660 
 
 Nixon's Ap[.eal 126, 133, 137 
 
 Noad V. Backhouse 818 
 
 Noble r. Andrews 317, 357, 358, 841 
 
 V. Rrett 9;!2 
 
 V. Edwards 780 
 
 V. McFarland 676 
 
 V. Meyinott 267, 291, 884 
 
 V. Morris 82 
 
 Noble's Estate 462 
 
 Nobles t'. Hogg 453 
 
 Noe V. Koll 143, 145 
 
 Noel V. Bewley 349, 351, 355
 
 INDEX TO CASES CITED. 
 [References are to sectioun.] 
 
 Noel V. Henley 
 
 
 550, 571 
 
 V. Juvoll 
 
 
 322 
 
 V. Jones 
 
 
 lllJ 
 
 r. Kobinson 
 
 
 244 
 
 Noke V. Stp])iiig3 
 
 
 820. 827 
 
 Nolc'ii's Appeal 
 
 
 6;i9, 042 
 
 Noiiotuck Silk Co. V. Flanders 122,827 
 
 Norbury r. Calbeck 
 
 
 WM 
 
 V. Norbury 
 
 
 4.07. (i04 
 
 Norcuin v. D'Oench 
 
 
 511,784 
 
 Norfolk's Case 
 
 
 7.17 
 
 Norliiij; t'. Allee 
 
 
 246, 4:}7 '. 
 
 Norman r. Cunningham 
 
 
 84;}, 844, 847 
 
 r. Hill 
 
 
 002 /y, 002 '/a 
 
 Norris r. Chambers 
 
 
 71 
 
 V. Clynier 
 
 
 610 
 
 V. Frazer 
 
 
 181 
 
 V. Ilaggin 
 
 
 802 
 
 V. Harrison 
 
 
 544. 54.J 
 
 V. Hassler 
 
 
 875 
 
 V. He 
 
 
 223 
 
 t>. Johnston 
 
 
 555 
 
 V. I^ Neve 
 
 
 206, 228, 869 
 
 V. Norris 
 
 
 8!J4, 807 
 
 V. Thompson 694, 
 
 711 
 
 , 720, 765, 920 
 
 V. Woods 
 
 
 511 b 
 
 V. WriKht 
 
 
 457, 4C0, 889 
 
 Norris's Appeal 229, 
 
 464, 
 
 470, 471,901, 
 918 
 
 North V. Barnum 
 
 
 803 
 
 V. Crompton 
 
 
 150, 151 
 
 c. Curtis 
 
 
 609 
 
 V. Pardon 
 
 
 354 
 
 V. I'hilhrook 
 
 
 320 
 
 V. Turner 
 
 
 5!)3 
 
 North Adams Univ. Soc 
 
 V. 
 
 Fitch 705, 
 
 Nostrand i'. Atwood 
 Nottage, In re 
 Nottigc V. Prince 
 Nottingham v. Jennings 
 Nougues V. Xcwlands 
 Nourse v. Finch 
 
 t'. Merriam 
 Nowland r. Nelligan 
 Noyes r. Hlakeman 
 
 t'. Newburyport S. Inst'n 
 
 V. TumbuU 
 Nugent r. Oiflcjrd 
 
 r. Vetzera 
 Numsen r. Lyon 
 Nunn V. Graham 
 
 V. Harvev 
 
 V. O'Urien 
 
 V. VViismore 
 Nurse r. Yerwarth 
 Nurton v. Nurton 
 Nutt V. Morse 
 Nyce's Appeal 
 
 Estate 
 Nyssen v. Gretton 
 
 CIX 
 
 592 
 
 384. 705 
 
 189, ]!»2 
 
 380 
 
 865 
 
 150 
 
 738, 748 
 
 112 
 
 660, 680 
 
 82 
 
 343 
 
 809, 810, 811. 815 
 
 603 
 
 299 
 
 680 
 
 618 
 
 114, 540 
 
 600 
 
 347 
 
 809 
 
 82. 171 
 
 418, 453,450,467 
 
 459, 914 
 
 570 
 
 O. 
 
 Oakes v. Strachay 117, 449 
 
 Oakland Bank of Savings v. Wilcox 209 
 Oakley, Jn re 428 
 
 Oates V.Cooke 312,313,314 
 
 Northage, In re 
 
 North Anier. Coal Co. v. Dvett 
 
 Oat man v. Barney 
 O'Baniion r. Musselman 
 
 5!)3 O'Bcar Jewelry Co. v. Volfer 
 705, Obee v. Bisliop 
 
 748 Obermiller r. Wylie 
 
 545 Obert v. Bordine' 
 
 554 Oberthier r. Strand 
 
 North Australian Territory Co., In re 207 i O'Brien v. Grierson 
 
 North Baltimore, &c. Ass. v. Cald 
 
 well 
 North British Ins. Co. v. Llovd 
 North Carolina R. R. Co. v. NVilson 
 No. Car. School v. No. Car. Inst'n 
 Nortliainpton Bank v. Ballitt 
 
 r. Crafts 
 
 V. Whiting 
 North Hempstead v. Hempstead 
 Northcroft r. Martin 
 Northen v. Carnetrie 
 Northern Central K. R. Co. r. 
 
 Keigliton 
 Northrop v. Hale 
 North Shore Ferry Co. 
 Norton v. Dyersburg 
 
 V. Frpcker 
 
 195 
 179 
 853 
 700 
 438 
 
 172 
 152 
 
 V. Gillisou 
 
 V. Ladd 
 
 V. Leonard 
 
 t>. McDevit 
 
 V. Norton 
 
 V. Ray 
 
 V. Turvill 
 Norton's Estate 
 Norvell r. Johnson 
 Norway r. Norway 
 Norway S. Bank v. Merriam 
 Norwich Yarn Co. 
 
 918 
 
 82 
 
 3:!1 
 
 749 
 
 871 
 
 918 
 
 863 
 
 299, 302. 305 
 
 863, 8ii5 
 
 312 
 
 843 
 
 657,663, 668, 8 I'i 
 
 471 
 
 V. Lewi 
 r. McMeel 
 t'. Petitioner 
 O'Cain i-. O'Cain 
 O'Callaglian r. Cooper 
 Ocean Nat. Bank r. Alcott 
 873 I Ochiltree r. Wright 
 299 Ockeston r. Heap 
 43 ' O'Connell v. O'Callaghan 
 O'Connor v. Decker 
 r. Haslam 
 V. Spaight 
 
 346 
 
 511 
 
 242 
 
 860 
 
 126 
 
 17, 328 
 
 126 
 
 928 
 
 202 
 
 729 
 
 99 
 
 401 
 
 517, 518, 901 
 
 142 
 
 415, 417. 421 
 
 340, 494, 495 
 
 890 
 
 443 
 
 601 
 
 871 
 
 270, 271, 8:i8 
 
 82, 16.1 
 
 907 
 
 Odd Fellows Hall Ass'n v. McAllister 
 
 4.37 « 
 Oddie V. Brown 306, 397 
 
 Odell V. Odell 384, 399, 687, 
 
 Udell's Estate 
 Odcn V. Windlfv 
 O'Donnell r. White 
 Oeshiger r. Fischer 
 O'Farrall, Kx parte 
 O'Ferrall r. O'Ferrall 
 Offley r. Ollley 
 Ogden V. Astor 
 
 V. Kip 
 
 V. Larabee 
 
 t'. ]\IiHugh 
 
 r. Murray 
 
 24, 737, 
 
 r;i8, 748 
 
 477, 490 
 
 918 
 
 126 
 
 458 
 
 632 
 
 533 
 
 581 
 
 178 
 
 819 
 
 82 
 
 122 
 
 207, 918
 
 ex 
 
 Ogdeu V. Ogden 
 Ogden's Appeal 
 Oglander v. Oglander 
 O'Hara, In re 
 
 V. Dudley 
 
 V. O'Neiil 
 O'Herlihy v. Hedges 
 O'Herron v. Gray 
 Oke V. Heatli 
 Okedeii v. Okeden 
 O' Keefe v. Caltliorpe 
 O' Kelly «. Glenny 
 O'Kinson v. Patterson 
 Olcott V. Gabert 
 
 V. Tioga R. R. Co. 
 
 V. Byiium 
 Oldham v. Hand 
 
 V. Jones 
 
 V. Litchfield 
 Old's Estate 
 Oliphant v. Burns 
 
 V. Hendrie 
 
 V. Liversidge 
 Olive V. Dougherty 
 
 V. Westerman 
 Oliver, Re 
 
 V. Courts 
 
 V. Ins. Co. 
 
 V. Oliver 
 
 V. Piatt 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 850 
 305, 310 a, 652 
 
 277, 287 
 276 
 171 
 82, 135, 137 
 427 
 845 
 160 
 581 
 277, 283, 284 
 862 
 299 
 315 
 199 
 132 
 202 
 206 
 
 181, 226 
 917 
 223 
 741 
 145 
 137 
 458 
 308 
 210, 419, 770 
 186 
 
 226, 451 
 
 127, 217, 836, 842, 843, 844, 
 
 863 
 
 Olliffe V. Wells 687 
 
 Olmstead, In re 280 
 
 V. Herrick 590 
 
 V. Webb 189 
 
 Olney v. Balch 288 
 
 O'Loughlin v. Fitzgerald 347 
 
 Olson V. Lamb 202 
 
 Ommanny v. Butcher 253, 712, 748 
 
 Oneal i\ Mead 564 
 
 O'Neall t'. Herbert 425 
 
 O'Neil v. Greenwood 103 
 
 V. Hamilton 215 
 
 V. Vanderburg 782 
 
 O'Neill V. Donnell 918 
 
 V. Henderson 216 
 
 V. Lucas 381, 397 
 
 Onslow V. Corrie 536 
 
 V. Londesborough 786 
 
 V. Wallis 157, 327, 734 
 
 Ontario Bank v. Mumford 58 
 
 Opinion of Justices 
 
 Oppenheimer v. First Nat. Bank 
 
 Orange v. Pickford 
 
 Orb j;. Coapstick 
 
 Orbey v. Mohun 
 
 Orcutt V. Gould 
 
 Ord V. Noel 409, 602 ee, 770, 774, 779, 
 
 781, 787 
 
 V. White 831 
 
 O'Reilly V. Alderson 275, 284, 292, 297 
 
 Orford v. Churchill 903 a 
 
 Orleans v. Chatham 82 
 
 Orlebar v. Fletcher 231 
 
 Ormiston v. Olcott 452 
 
 Ormond v. Hutchinson 178, 185, 803 
 
 Ormrod's Settled Estate, In re 90.J a 
 
 Ormsby, In re 904, 910 
 
 V. Dumesnil 251 
 
 757 
 82 
 511c 
 166 
 530 
 828 
 
 Ormsby v. Tarascon 602 a, 602 p, 602 q, 
 
 783 
 
 V. Webb 189 
 
 O'Rorke v. Bolingbroke 183 
 
 O'Rourke v. Beard 79, 260, 315 
 
 Orr V. Hodgson 55 
 
 V. Newton 261, 440 
 
 V. Kode 790 
 
 Orrett v. Corser 440 
 
 Orrock v. Binney 812 
 
 Orth V. Orth 114, 245 
 
 Orthwein v. Thomas 66 
 
 Osborn, In re 422 
 
 V. Brown 513 
 
 V. Glasscock 223 
 
 V. Morgan 627, 633 
 
 Osborne v. Fuller 591 
 
 V. Gordon 277 
 
 , V. 280, 282 
 
 to Rowlett 339, 494 
 
 Osburn v. Tallows 873 
 
 V. Throckmorton 647 
 
 Bliss 288 
 
 i;. Eaton 133 
 
 V. Franklin 187, 308, 770 
 
 V. Lovering 371 
 
 V. Strode 367 
 
 Osmond v. Fitzroy 189, 851 
 
 Osterman v. Baldwin 65, 75, 131 
 
 Oswald's Appeal 468 
 
 Oswell V. Probert 626, 632, 633 
 
 Otis V. Beckwith 105 
 
 V. McLellaa 381 
 
 V. Sill 86 
 
 Ottley V. Gibbs 821 
 
 V. Grav 792 
 
 Otto V. Sch'lapkahl 863 
 
 Ottway V. Wing 654 
 
 Ould V. Washington Hospital 694 
 
 Ouseley v. Anstruther 458, 469 
 
 Outcalt V. Van Winkle 641 
 
 Cutwater v. Berry 602 v 
 
 Overbagh v. Petrie 537 
 
 Overseers v. Tayloe 699 
 
 Overseers of Ecclesalt Bierlow, Ex 
 
 parte 737 
 
 Overseers of Poor v. Bank of Virginia 128 
 
 Overstreet v. Bates 803 
 
 Overton v. Bannister 53, 624, 923, 930 
 
 Ovey, Re 727 
 
 Oviatt V. Hopkins 920 
 
 Owen V. Aprice 871 
 
 V. Arvis 592 
 
 V. Bryant 66 
 
 V. Delamere 454 
 
 r. Dickenson 658 
 
 V. Homan 178, 179, 657 
 
 V. Owen 284 
 
 V. Peebles 462, 468 
 
 V. Reed 831 
 
 V. Switzer 511 c 
 
 V. Williams 196 
 
 Owens V. Cowan's heirs 500 
 
 V. Crow 520 
 
 V. Mission Society 748 
 
 V. Owens 181 
 
 V. Walker 614 
 
 Owing V. Mason 218 
 
 Owing's Case 35, 570, 57«
 
 
 INDEX TO CASES CITED. 
 
 
 
 CXI 
 
 
 
 [Refereucea are to sectionB.] 
 
 
 
 
 Ownes V. Ownes 33 
 
 66, 
 
 82, 95. 9fi, 98, 
 
 Palmer v. Carlisle 
 
 
 
 873 
 
 
 
 162 
 
 165, 21-t 
 
 V. Davig 
 
 
 
 683 
 
 Owson V. Cown 
 
 
 
 172 
 
 V. Forbes 
 
 
 
 759 
 
 Owthwaite, In re 
 
 
 
 453 
 
 V. Holford 
 
 
 
 380, 395 
 
 Oxeiiileii V. Compton 
 
 
 
 605,611 
 
 c. Jones 
 
 
 
 847 
 
 V. Oxendcn 
 
 
 
 634, 6;i7 
 
 V. Mitchell 
 
 
 
 464 
 
 Oxford V- Kfid 
 
 
 
 071 
 
 V. Scott 
 
 
 
 846 
 
 I', liicliaidson 
 
 
 
 871 
 
 t'. Simmons 
 
 
 
 112, 113 
 
 Oxley, £x parte 
 
 
 
 388, 555 
 
 V. I'nion Bank 
 V. Wake ford 
 f. Wilkins 
 
 
 
 705 
 880 
 3.34 
 
 P. 
 
 
 
 
 t'. Williams 
 V. Yarborough 
 
 
 
 221. 7»8 
 602/ 
 
 Pace V. Pace 
 
 
 
 386 a 
 
 V. Young 
 
 
 
 196, 538 
 
 r. Pavnc 
 
 
 
 863 
 
 Palmes v. Dan by 
 
 
 
 611 
 
 r. i'iuroe 
 
 
 
 3;J0 
 
 Palmetto Co. r.'ltisley 
 
 
 
 127, 207 
 
 Pacific Nat'l B'k v. Windram 
 
 585, 815 ((, 
 
 Paiinell v. Hurley 
 
 
 246 
 
 813, 907 
 
 
 
 
 827 a 
 
 Pannill v. Coles 
 
 
 
 321 
 
 Pack V. Slianklin 
 
 
 
 7U5 
 
 Papillon V. Voice 
 
 
 
 359, 309 
 
 Packard c. Kiiit;maa 
 
 
 
 437 a 
 
 Paramore v. (jreenslade 
 
 
 
 122 
 
 V. iMar^liall 
 
 
 
 315, 160 
 
 Parclier v. Daniel 
 
 
 
 511c 
 
 V. 0. C. K. Co. 
 
 
 
 82 
 
 Pardoe v. Price 
 
 
 
 751 
 
 V. Putnam 
 
 
 
 82 
 
 Parliti I'. Ilember 
 
 
 376 
 
 383, 390 
 
 V. Roberts 
 
 
 
 633 
 
 Paris V. Paris 
 
 
 
 543, 545 
 
 Packer v. Packer 
 
 
 
 630 
 
 Parish's Appeal 
 
 
 
 078 
 
 V. W'viidhain 
 
 
 
 633 
 
 Parish of .>t. Dunstan v. 
 
 Beauchamp 095 
 
 Packwooii V. Maddison 
 
 
 
 899 
 
 I'arkam v. McCrary 
 
 
 
 230 
 
 Paddock i". Adams 
 
 
 
 145 
 
 Parke v. Kleeber 
 
 
 
 680 
 
 1'. Strobridi^e 
 
 
 
 179 
 
 Parke's Charity, In re 
 
 
 
 737 
 
 Paddon r. Richardson 
 
 267 
 
 417 
 
 440, 454 
 
 Parker, Kx parte 
 
 
 
 236 
 
 Padlield V. Padlield 
 
 
 
 98 
 
 V. Barlow 
 
 
 
 437 a 
 
 Paff I'. Kinuey 
 
 
 
 855, 803 
 
 V. Bloxam 
 
 
 
 429 
 
 Page, In re 
 
 
 
 801 
 
 V. Bod lev 
 
 
 
 75 
 
 V. Adam 
 
 597, 
 
 795, 
 
 801, 802 
 
 V. Bolton 
 
 
 
 112 
 
 V. Bennett 
 
 
 
 455 
 
 V. Brast 
 
 
 
 127 
 
 V. Booth 
 
 
 
 229, 230 
 
 I'. Brooke 538, 
 
 647, 
 
 648, 
 
 665, 83.3. 
 
 V. Boyntoa 
 
 
 
 915 
 
 
 
 
 834 
 
 V. Broom 
 
 
 585 
 
 593. 780 
 
 V. Brown 
 
 
 
 724 
 
 V. Cooper 
 V. Kstes 
 
 
 
 708 
 
 f. Cal croft 
 
 
 
 242 
 
 
 
 627, 032 
 
 r. Carter 
 
 
 
 324 
 
 V. Holeman 
 
 
 
 471 
 
 r. Converse 284, 
 
 320 
 
 653 
 
 671, 921 
 
 V. r.oapingwell 
 V. Lever 
 
 
 
 160, 574 
 
 V. Coop 
 
 
 
 127, 133 
 
 
 
 219 
 
 V. Crittenden 
 
 
 219 
 
 221, 222 
 
 V. Olcott 
 
 
 
 590 
 
 V. Fearnley 
 
 
 
 570, 571 
 
 V. Page 126, 
 
 133, 
 
 137, 
 
 139, 143 
 
 r. Gillian 
 
 
 
 225 
 
 V. Stevens 
 
 
 
 330 
 
 V. Hall 
 
 
 
 858 
 
 V. Trufaiit 
 
 
 
 072 
 
 r. Johnson 
 
 
 
 547,912 
 
 V. Way 
 
 
 386 b, 555 
 
 V. .Tones Adm'r 
 
 
 
 828 
 
 Paget, In re 
 
 
 
 503 
 
 V. Kane 
 
 
 
 680 
 
 Pahhuan v. Shumway 
 
 
 602 bb. 602 f 
 
 V. Kelly 
 
 
 
 330 
 
 Paioe r. Canterbury 
 
 150 
 
 699 
 
 719, 722 
 
 V. Logan 
 
 
 
 137 
 
 Paige V. Paige 
 V. Smith 
 
 
 
 127 
 702 
 
 V. May 
 V. Nichols 
 
 
 
 723, 748 
 299 
 
 Paillon V Martin 
 
 
 
 195 
 
 i". Parker 
 
 
 
 145 
 
 Paine r. Barnes 
 
 
 
 708 
 
 V. Sears 
 
 
 
 499 
 
 V. Forsaith 
 
 
 
 315 
 
 V. Seeley 
 
 
 
 490, 549 
 
 V. Hall 
 
 
 
 210 
 
 r. Seweil 
 
 
 
 237 
 
 f. Irwin 
 
 
 
 199 
 
 V. Snvder 
 
 
 
 1.37 
 
 V. Miller 
 
 
 
 122 
 
 V. Wiiite 
 
 
 
 199, 521 
 
 J). \Yilcox 
 
 
 
 137 
 
 Parker's Trusts, /n re 
 
 
 
 200 
 
 Painter, lix pnrle 
 
 
 
 58 
 
 Parker's Will, In re 
 
 
 
 848 
 
 V. Henderson 
 
 
 
 195 
 
 Parkes r. White 646, 
 
 665. 
 
 667, 669. 
 
 Pairo V. Vickory 
 
 
 
 195 
 
 
 
 670 
 
 849, 809 
 
 Paisley v. Holzshu 
 
 
 
 44S 
 
 Pnrkhurst v. Van Cortlandt 
 
 
 226 
 
 I'aisley's Appeal 
 
 
 
 117, 119 
 
 Parkinson v. Hanbury 
 
 
 
 109 
 
 Paker i'. Simonds 
 
 
 
 6S0 
 
 Parkinson's Trust 
 
 
 
 113 
 
 Paliiiret r. Carew 
 
 
 
 770 
 
 Parkist r. Alexander 
 
 
 
 206 
 
 Palk. Re 
 
 
 
 343, 848 
 
 Parkman ;-. SutTolk S. Bank 
 
 
 225 
 
 Palmer t>. Bate 
 
 
 
 69 
 
 Parks V. Hall 
 
 
 
 226
 
 cxu 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Parks V. Parks 
 
 r. Satterthwaite 
 I'anneiiler v. Walker 
 Pariiilee v. Sloan 
 Pariiell v. Hiugston 
 
 V. Lyon 
 Pariiliain v. Ilurst 
 PariL-tt v. Palmer 
 Pariis I'. Cobb 
 Parrish r. I'arrish 
 
 V. Kliodes 
 Parrott v. J'almer 
 
 V. Pawlett 
 
 V. Sweetland 
 
 V. Trub}' 
 Parrv v. Warrington 
 
 V. Wright 
 Parshall's Appeal 
 Parson v. Snook 
 Parsons i'. Baker 
 
 V. Bovd 
 
 V. ClaVk 
 
 V. Dunne 
 
 V. 1 1 ay ward 
 
 V. Jones 
 
 V. Jury 
 
 V. Lyman 
 
 r. Parsons 
 
 V. I'helan 
 
 V. Winslow 
 Partee v. Thomas 
 Partington v. Pteynolds 
 Partridge v. Havens 
 
 V. Slesser 
 
 17. Pav.-lett 
 
 c. Stocker 
 
 V. Walker 
 Paschall v. Acklin 
 
 V. Hinderer 
 Pascoag Bank v. Hunt 
 Pascoe V. Swan 
 Passingham r. Sherborne 
 Patapsco Guano Co. v. Brj-an 
 Patching v. Baruett 
 Patten r. Bond 
 
 V. Herring 
 Pattenden v. Hobson 
 Patrick, Re 
 Patterson v. Devlia 
 
 V. Flanagan 
 
 V. High 
 
 V. Johnson 
 
 V. Linder 
 
 V. Mills 
 
 V. Murphy 
 
 V. Scott 
 
 V. Wilson 
 Patterson's Appeal 
 Pattisun V. Hawksworth 
 Patton V. Chamberlaiu 
 
 V. Moore 
 
 V. Randall 
 
 t'. Thompson 
 Paul V. Chouteau 
 
 V- Coinpton 
 
 V. Fulton 
 
 V. Heweston 
 
 V. Squibb 
 
 V. Wilkins 
 
 2'J8, 30G 
 
 86.5 
 
 602 r, G02 w 
 
 J 37 
 
 100, 101, 102 
 
 513, bll 
 34.5 
 6.58 
 863 
 189 
 149 
 871 
 
 694, 724 
 
 235, 230 
 
 900 
 
 462, 508, 550 
 
 347 
 
 209, 427 
 385 
 112 
 330, 414, 602 m 
 596 
 630 
 430 
 275 
 218 
 
 262, 281 
 
 629, 639, 641 
 
 127 
 
 458, 516, 552, 817 
 
 81)0 
 
 126, 343 
 
 212, 591 
 
 136 
 
 660 
 
 693 
 
 694, 737, 748 
 
 146, 229 
 
 128, 135 
 
 871, 872 
 
 277, 297 
 
 206 
 
 382 
 
 345, 828 
 
 827 n 
 
 771, 890 
 
 438 
 
 541, 546, 547 
 
 681 
 
 546 
 
 260 
 
 232 
 
 86, 347 
 
 82, 86,96, 104 
 
 569, 573 
 
 253 
 
 82, 195 
 
 866 
 
 82 
 
 220, 221 
 
 501 
 
 428 
 
 126 
 
 112. 116 
 
 82, 221 
 
 5116 
 
 205 
 
 231 
 
 Paules V. Dilley 
 
 Paulet V. Delavel 
 
 Paulus V. Latta 
 
 I'auly V. State Loan & T. Co. 
 
 I'aup V. Mingo 
 
 I'avey v. American Ins. Co. 
 
 I'awcey v. Bowen 
 
 Pawlett V. Att. Gen. 40 
 
 V. Clark 
 Paxton V. Bond 
 
 V. Potts 
 Payne, Ex parte 
 
 V. Atterbury 
 
 V. Ballard 
 
 V. Collier 
 
 V. Comptoa 
 
 V. Little 
 
 V. Low 
 
 V. Parker 
 
 V. Rogers 
 
 V. Sale 
 Payne's Case 
 Payton v. Almy 
 Peabody v. Eastern Meth. See. 
 
 V. Tarbell 
 Peachnian v. Daw 
 Peacock i;. Black 
 
 V. Evans 
 
 V. Monk 654, 655, 
 
 V. Pembroke 
 
 V. Tompkins 
 Peacock's Trusts, In re 
 Peak V. Ellicott 
 Peake, J^x parte 
 
 V. Ledger 
 
 V. Penlington 
 Pearce v. Bryant Coal Co. 
 
 V. Crutchfield 
 
 V. Gamble 
 
 V. Gardner 499, 
 
 V. Loman 
 
 V. McClenaghan 
 
 V. Newlyn 
 
 V. Olnev 
 
 V. Pearce 265, 274, 
 
 V. Slocoinbe 597, 
 
 Peard v. Kekewich 
 Pearle v. McDowell 
 Pearly v. Smith 
 Pearse v. Baron 
 
 V. Green 
 
 V. Hewitt 
 Pearson v. Amicnble Office 
 
 V. Bank of England 
 
 V. Belchier 
 
 V. Benson 
 
 V. Crosby 
 
 V. East 
 
 V. Jamison 402, 
 
 V. Morgan 
 
 V. Pearson 
 
 V. Pullev 
 
 V. Rock hill 585, 
 
 V. Yv'artman 
 Pease v. Pattinson 
 
 V. Pilot Knob Co. 
 Peat V. Crane 
 Peatfield v. Benn 
 
 275 
 
 679 
 
 828 
 
 910 
 
 94 
 
 70 
 
 529 
 
 217, 325 
 
 743 
 
 511 n 
 
 569, 570 
 
 112, 116 
 231 
 803 
 
 460, 884 
 828 
 
 665, 894 
 613 
 876 
 330 
 
 312, 317 
 
 694 
 
 93 
 
 730 
 
 126, 137 
 827 
 228 
 
 187, 188 
 
 656, 657, 
 665 
 
 640, 642 
 591 
 337 
 122 
 
 236, 239 
 884 
 
 375, 767 
 482 
 636 
 197 
 
 771, 783 
 515 
 312 
 
 230, 828 
 72 
 
 288, 846 
 
 599, 000 
 376 
 35 
 556 
 528 
 821 
 877 
 101 
 242 
 869 
 202 
 592 
 
 135, 172 
 
 408, 779 
 171 
 
 79, 903 a 
 
 85.5, 862 
 
 591, 594 
 
 568 
 
 727 
 
 511 c 
 
 455 
 
 293, 297
 
 imjex to cases cited. 
 
 [Kefereucea are to sections.] 
 
 cxm 
 
 Peav r. Pcav 
 
 
 324 
 
 Penstred r. Payer 
 
 701 
 
 I'eciiL-1 1-. Kowler 532 
 
 , 77C 
 
 , 782, 8IG 
 
 I'enlland t'. Stokea 
 
 621, 858 
 
 Peck 1'. Hrowii 
 
 
 521 
 
 Peniz f. Simonson 
 
 685 
 
 V. Ileiidershott 
 
 
 678 
 
 People I'. Abbott 
 
 437 a 
 
 V. Pi'ck 
 
 
 602 ee 
 
 V. Buffalo 
 
 8Jl 
 
 f. Walton 
 
 
 676 
 
 f. Chicago Gas Trust Co 
 
 21 
 
 V. Whiting 
 
 
 591 
 
 V. Clark 
 
 732 
 
 Peckhani v. Newton 
 
 
 452, 453 
 
 V. Cogswell 
 
 700, 701 
 
 f, Taylor 
 
 
 86, 11(0 
 
 V. Honohoe 
 
 277 
 
 Peebles v. Reading 134, 
 
 135. 
 
 137, 141, 
 
 V. Everest 
 
 855 
 
 
 172 
 
 , 217, 2_'8 
 
 V. Fitch 
 
 701 
 
 People's Ajipcal 
 
 
 202 
 
 V. Iloughtaling 
 
 245 
 
 I'eek ('. Henderson 
 
 
 765 
 
 V. .lansen 
 
 210 
 
 Peer v. IVer 
 
 
 147, 148 
 
 r. Kendall 
 
 170 
 
 Peercv v. Koberts 
 
 
 386, 555 
 
 r. Merchants' Bank 
 
 195 
 
 Peers v. Ceeley 
 
 
 910, 927 
 
 V. Morton 
 
 341 
 
 PeilTer v. Lytle 
 
 
 137 
 
 V- Moores 
 
 33 
 
 Peillow r. ({rooking 
 
 
 671 
 
 r. North River Sugar Kef. Co. 21 
 
 Peirce r. McKeehau 
 
 
 137 
 
 V. North San Francisco 
 
 Ilome- 
 
 Peirsol V. Koop 
 
 
 252 
 
 stead Ass 
 
 732 
 
 Pelhuni V. Anderson 
 
 
 699 
 
 V. Norton 
 
 275 
 
 Pell V. Ball 
 
 
 900 
 
 V. 0. B. of S. B. B. Co. 
 
 195 
 
 V. Cole 
 
 
 681 
 
 V. Powers 79, 
 
 712, 720, 729 
 
 V. De Winton 
 
 476 
 
 792, 806 
 
 V. liochester 
 
 44 
 
 V. Mercer 
 
 
 723 
 
 V. Simonson 
 
 732 
 
 Pelley v. Bascombe 
 
 
 863 
 
 V. Steele 
 
 734, 748 
 
 Pells ('. lirown 
 
 
 379 
 
 I'. Tebbets 
 
 331 
 
 Pelly r. Maddin 
 
 
 126 
 
 V. Utica Ins. Co. 
 
 44 
 
 Pelton I'. Harrison 
 
 
 671 
 
 t'. Webster 
 
 49 
 
 Peniber r. Kiii!,diton 
 
 
 701 
 
 Pepper v. I'uckey 
 
 277 
 
 r. M:itliers 
 
 
 226 
 
 l'epi)crcorn v. Waynian 
 
 270, 273 
 
 Pemherton v. McGill 
 
 
 669 
 
 Peraita v. Castro 
 
 84 
 
 V. Marriott 
 
 
 627 
 
 Percy v. Milladon 
 
 207 
 
 V. Johnson 
 
 
 686 
 
 Perfect v. Lane 
 
 188 
 
 Pembroke r. AUenstown 
 
 
 126 
 
 IVrham v. Randolph 
 
 172 
 
 Pence V. Force 
 
 
 86 -i 
 
 Peril! V. Cary 45, 697, 
 
 724, 737, 748 
 
 Pendleton r. Fay 
 
 225, 
 
 810, 811 
 
 Perine v. Swaine 
 
 654 
 
 Pentield v. I'uhlic Adm'r 
 
 
 98 
 
 Perkins, Jn re 
 
 5116 
 
 V. Skinner 
 
 
 748 
 
 V. Boynton 
 
 468 
 
 V. Sumner 
 
 
 710 
 
 V. Caitwell 
 
 855, 863 
 
 V. ToWLT 
 
 72, 448. 5116 
 
 V. Cottrell 
 
 676 
 
 Penfold V. Bouch 
 
 157, 
 
 520, 900 
 
 V. Elliott 
 
 660 
 
 V. Mould 
 
 
 97 
 
 V. Fisher 
 
 382 
 
 Penn v. Lord Baltimore 4C 
 
 , 71, 
 
 172, 325 
 
 V. Kershaw 
 
 910 
 
 Penne v. Peacock 
 
 
 48!) 
 
 r. Lewis 
 
 262, 281 
 
 Pennell v. Deftell 
 
 443 
 
 463, 837 
 
 V. ^IcGavock 
 
 268, 274 
 
 V. Home 
 
 
 869 
 
 V. Moore 
 
 262, 263 
 
 Pennell's Appeal 
 
 
 910, 918 
 
 V. Nichols 
 
 146, 148 
 
 Penney v. Avison 
 
 
 471 
 
 r. Perkins 
 
 836 
 
 Pennim:in v. Sanderson 
 
 
 785 
 
 V. I'ritchard 
 
 752 
 
 Pennington r. Beechey 
 
 
 219 
 
 t'. Westcoat 
 
 612 
 
 V. Buckley 
 
 701, 903 a 
 
 Perkins's Appeal 
 
 432, 918 
 
 V. Gid<iiMgton 
 
 
 109 
 
 Perkinson v. Hanna 
 
 221 
 
 V. Smith 
 
 
 878 
 
 Perrin v. Lepper 
 
 877 
 
 Pennock r. t'oe 
 
 
 68, 759 
 
 r. Lyon 
 
 515 
 
 Pen nock's Appeal 
 
 195 
 
 205, 428 
 
 f. ]\icMicken 
 
 43 
 
 Estate 
 
 
 113, 119 
 
 Perrine r. Applegate 
 
 892 
 
 Pennoyer v. Stielden 
 
 
 7<>5 
 
 1-. Xewell 
 
 910 
 
 Penn. "Ins. Co. v. Austin 
 
 
 768, 809 
 
 Perrins v. Bellamy 
 
 848 
 
 V. Bauerle 
 
 
 242 
 
 Perry, (ioods of 
 
 264 
 
 Penny v. Allen 
 
 8, 
 
 869, 871 
 
 V. Boileau 
 
 647 
 
 r. Cook 
 
 
 781, 785 
 
 V. < 'raig 
 
 229, 230 
 
 V. Davis 
 
 
 259, 261 
 
 V. Head 
 
 126 
 
 V. Pennv 
 
 
 877 
 
 V. Knott 848, 
 
 874, 877, 882 
 
 V. Turner 248, 251, 
 
 255, 
 
 258, 714 
 
 I'. Mcl'wen 
 
 733 
 
 Pennypackcr's Appeal 
 
 
 471 
 
 V. McHcnry 
 
 1.32 
 
 Penobscot U. K. Co. v. Mayo 
 
 
 843, 923 
 
 V. Pearson 
 
 226 
 
 Penrhyn v. Hughes 
 
 
 554 
 
 r. Perry 
 
 52 
 
 Pensonneau v. Bleakley 
 
 
 218 
 
 V. Phelips 
 
 841 
 
 VOL. I. — h 
 
 
 

 
 CXIV 
 
 INDEX TO CASES CITED. 
 [Eefereuces are to sections.] 
 
 Perry r. Roberts 286 b 
 
 V. Shipway 413 
 
 Perry's Almshouses, In re 701 
 
 Perry Herrick v. Attwood 108 
 
 Perrvclear v. Jacobs 628, fi-i2 
 
 Persch v. C^uiggle 128, 20G, 851 
 
 Person v. Warren 5(j 
 
 Personeau v. Personeau 4(;0 
 
 Persons v. Persons 147 
 
 Persse v. Persse 185 
 
 Petch V. Tutin ^67 
 
 Peter v. Kendall 756 
 
 Peters v. Hain 828 
 
 V. Beverlv 415, 421,499,501,602 ?», 705 
 
 V. Goodrich 186 
 
 V. Grote 6;i7 
 
 V. Tunell 234 
 
 Petersham r. Tash 243 
 
 Peterson v. Boswell 127 
 
 V. Grover 226 
 
 Peterson's Appeal 499 
 
 Peti. of Baptist Church 476 a, 928 
 
 Petit V. Smith 17, 150 
 
 Petit's Appeal 618 
 
 Peto I'. Gardner 605 
 
 Petranek, Jie 277 
 
 Petre. /-.c parte 613, 614 
 
 V. Espinasse 104 
 
 V. Petre 614 
 
 Petrie v. Clark 225, 809, 812, 814 
 
 Petrikeu v. Davis 593 
 
 Pettee v. Peppard 440 
 
 Pettibone v. Perkins 602 v 
 
 Pettingill v. Pettingill 202, 559 
 
 Pettiward v. Prescott 872 
 
 Pettus V. Atlantic S. Ass'n 277 
 
 V. Clawson 468 
 
 Petty V. Booth 648 
 
 V. Petty 213 
 
 V. Styward 136 
 
 Peynado't". Peynado 242 
 
 Peyton v. Alcorn 610 
 
 V. Bury 344, 414, 505, 511, 518, 
 
 519 
 
 V. Enos 205 
 
 V. McDowell 891 
 
 V. Rawlins 191 
 
 V. Smith 463, 468, 918 
 
 Pfaff V. Prag 593 
 
 Phalen v. Clarke 230 
 
 Pharis v. Leachman 841, 877 
 
 Piiayre v. Perce 217, 828 
 
 Pheips, Ex parte 275 
 
 V. Conover 237 
 
 V. Harris 769 
 
 V. Phelps 324, 748, 890 
 
 V. Pond 396 
 
 V. Seeley 82, 137 
 
 Phene, Re 929 
 
 V. Gillon 245, 909 
 
 Phifer v. Berrv 869 
 
 Philadflphia, Matter of 529 
 
 r. Fox 710, 743, 748 
 
 V. Girard 45, 384, 396, 399, 724. 728. 
 
 738,748 
 
 V. Wills 748 
 
 Philadelphia Nat. Bank v. Dowd 122 
 
 Piiilanthropic Sncietv v. Kemp 573 
 
 Philbrooke v. DelanS 162, 232, 233 
 
 Philippo V. Mannings 263, 574, 827, 863 
 Philips, In re 397 
 
 V. Brvdges 8, 13, 347 
 
 V. Crammond 64, 126, 127, 131, 139 
 Phillips, Ex parte 412, 605, 611 
 
 V. Bank of Lewiston 438 
 
 V. Belden 229, 230 
 
 V. Buckingham 883 
 
 V. Bucks 172, 174 
 
 V. Bury 742, 743 
 
 V. Bustard 918 
 
 V. Cay ley 511 c 
 
 V. E^astwood 487 
 
 V. Edwards 778 
 
 V. Everard 786 
 
 V. Garth 250, 257 
 
 V. Gutteridge 576 
 
 V. Harrow 700 
 
 V. Ilessell 630, 632 
 
 V. James 361 
 
 V. Medbury 514 
 
 V- Moore 191 
 
 V. Mullings 104 
 
 V. Paget 624 
 
 V. Phillips 114, 151, 226, 244, 444, 538, 
 
 930 
 V. Rogers 855 
 
 V. Ross 284 
 
 V. Sargent 547 
 
 V. Saunderson 237 
 
 V. Sherman 77 
 
 V. South ParkCom'rs 76, 82 
 
 V. Swank 315 
 
 V. Thompson 918 
 
 V. Ward 328 
 
 V. Winslow 759 
 
 V. Wood 252 
 
 Phillips Academy v. King 42. 44 
 
 Phillipson v. Gatty 457, 462, 467, 469, 
 
 870, 881 
 
 V. Kerry 104 
 
 Phillpots V. Phillpots 131 
 
 Philpot V. Penn 137, 139 
 
 V. St. George Hospital 709 
 
 Phipps V. Annesley 571 
 
 V. Kelynge 381, 390, 396 
 
 Phcenix V. Livingston 918 
 
 Phoenix Bank v. Sullivan 593 
 
 Phoenix Life Assurance Co., In re 331 
 
 Phvfe V. Wardwell 538 
 
 Piatt V. Oliver 127, 206, 881, 882 
 
 V. Vattier 38, 228, 230, 855, 869 
 
 Pickard v. Anderson 453 
 
 Pickets V. McPherson 846 
 
 Pickens v. Knist'lev 658 
 
 Pickering r. C^oates 387, 652, 670 
 
 V. De Rochemont 468 
 
 V. Pickering 185, 4.50, 451, 467, 547 
 
 V. Shotwell 46, 700, 701. 730, 748 
 
 v. S'aniford 861,867,869 
 
 V. Vowles 196, 336, 532, 538 
 
 Pickett V. Everett 639 
 
 I". Jones 672, 673 
 
 V. Lng-gan 187, 192, 230, 872 
 
 Pickslnck V. Lyster 590 
 
 Pickup V. Atkinson 451, 547 
 
 Picquet ^^ Swan 32, 51, 277 
 
 Pidcock V. Bishop 171^ 178, 179 
 
 Pidgeley v. Pidgeley 511 C
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 CXV 
 
 Piedmont Land Co. v. Piedmont Foun- 
 dry Co. 124 
 
 Pierce v. Howker 4C0, 'J 18 
 
 I'. Hrady ■I'M 
 
 V. Brewster 51)0 
 
 V. IJurrouglis 541, 554 
 V. Emery 757, 758, 759 
 
 V. Fort 75 
 
 r. Gates 239 
 
 »'. 1 lower 147 
 
 V. McKeehan 836 
 
 V. Pierce 132 
 
 V. Robinson Ct(\2jr 
 
 V.Scott 789,81-2 
 
 V. Thompson G'19 
 
 V. Tlioriiicy G.t9 
 
 V. Waring 200 
 
 V. Weaver 294 
 
 Piercy, In re 72, 720 
 
 Pierpoiit r. Cheney 614 
 
 V. Graham " 592, 59.3 
 
 Pierson v. Armstrong 299 
 V. David 232, 238, 239 
 V. Garnet 112, 110, 249 
 V. Shore 196, 605, Oil 
 
 V. Tiiompson 744 
 
 Pieschel v. I'aris 714, 729 
 
 Pietv J'. Stace 4G4, 408, 900 
 
 Pigott 1'. Peiirice 248 
 
 Piggott V. Green 272 
 
 Pike i". Bacon 591 
 
 V. Baldwin 795 
 
 t'. Collins 639, 644 
 
 V. Fitzgibbon 658 
 
 Pilcher v. Flinn 230, 861, 807 
 
 V. Itandall 117 
 
 V. Kiiwliiis 223 
 
 Pilkiiigton V. Bailey 70 
 
 V. Boughey 112, 160 
 
 Pillars V. Mc(;onnell 137 
 
 Pillot r. Landon 359 
 
 Pillow V. Brown 166 
 
 r. Shannon 219 
 
 Pillsburv — Washburn F. M 
 KistlcT 
 
 Pilniore r. Ilood 
 
 Pinchain t'. Coliard 
 
 Pine St. Soc. v Weld 
 
 Pingree v. Coffin 
 t". Comstock 
 
 Pingrey v. Nat. Ins. Co. 
 
 Pingry v. Washburn 
 
 Pink V. De Thiiisey 
 
 Pinkard v. Pitikard 
 
 Pinkston v. Brewster 
 i\ Scmple 
 
 Pinn V. Downing 
 
 Pinnell v. Haileit 
 
 Pinney v. Fellows 
 
 232, 
 
 V. Newton 
 Pinnock v. Clough 
 I'inson I'. McGeheo 
 Pinston v. Ivey 
 Pintard v. Goodloe 
 Pipe r. Jordan 
 Pipi'r's Appeal 
 Pipkin V. Casey 
 Pitcairn, In re 
 
 Co. V. 
 
 82 
 
 173 
 
 237 
 
 737 
 
 122 
 
 594 
 
 104 
 
 214 
 
 507, 508,511 
 
 97 
 
 863, 807 
 
 827 a 
 
 418, 419 
 
 475 
 
 79, 82, 126, 127, 132. 
 
 139, 161,647 
 
 246, 405 
 
 81, 133, 135 
 
 82 
 
 863 
 
 239 
 
 223 
 
 275 
 
 814 
 
 348, 450, 506 
 
 Pitcher v. Kigby 
 
 V. Toovey 
 Pitney v. Bolton 
 
 V. Flverson 
 Pitt V. Jackson 
 
 V. Pitnay 
 I'itt's Case 
 Pittnian t'. Pittman 
 Pitt.i r. Bonner 
 
 V. Cottiiigham 
 
 V. Kdelph 
 
 V. James 
 
 V. Pel ham 
 
 V. Pitt 
 Pittsiicld Savings Rank v. Berry 
 Planck V. Schcriuerhorn 287, 
 
 I'laiiters' Bank v. I'rater 
 Plass V. Plass 
 Platel V. Craddock 
 Platmone v. Staple 
 Piatt V. McCIure 
 
 I". New York Railway 
 
 V. St. John's College 
 Player v. Nicholls 
 Plomley v. l-iichardsoa 
 Plowman v. Riddle 
 PIninan v. Slocum 
 Pliiml) f. I'liiitt 
 I'lunibe r. Ncild 
 PI nine i'. Beale 
 Pliimer v. Reed 
 I'lymouth v. Hickman 
 Plyniptoii r. Boston Dispensary 
 
 V. Fuller 
 
 V. I'lvmpton 
 Poage V. i$ell 
 Pocock V. Att.-Gen. 
 
 V. Reddington 453, 457, 460, 
 
 Podmore v. Gunning 82 
 
 Poillon V. Martin 
 Poiiidextcr i: Blackburn 
 
 V. Burwell 
 
 V. Jeffries 
 Pole V. Pictsch 
 
 V. Pole 54, 143, 
 
 Polk V. Boggs 
 
 V. Robinson 
 Pollard, Kx parte 
 
 V. Cleveland 
 
 t'. Downes 
 
 r. Doyle 
 
 V. (^ifecnville 
 
 r. Maddox 
 
 V. .Merrill 
 Pollard's Trusts 
 Policy t;. Jolins(m 
 I'olle.xfen V. Jloore 38, 
 
 Pollock r. Croft 
 
 t". Ilooley 
 
 V Keasley 
 Pomfret v. Perring 
 
 t'. Winsor 433, 584, 
 Pond r. Hine 
 Ponder f. McGruder 
 Pontet r. Basingstoke Canal Co. 
 Pool V. Bate 
 
 V. Cuniminga 
 
 V. Dial 
 
 203 
 536 
 79 
 918 
 324 
 602 w 
 
 u;r, 
 
 359 
 
 848, 876 
 
 171 
 
 830 
 
 701 
 
 121 
 
 348 
 
 310 
 
 595, 598 
 
 828 
 
 124, 805 
 
 438 
 
 103 
 
 602 ee 
 
 757 
 
 700 
 
 312 
 
 56 
 
 236 
 
 429 
 
 223 
 
 544, 545 
 
 182 
 
 206, 215 
 
 82 
 
 554 
 
 566 
 
 466 
 
 330 
 
 727 
 
 468, 508, 
 
 844, 902 
 
 ,181,216 
 
 203, 438 
 
 540, 639 
 
 437 a 
 
 627, 629 
 
 510 
 
 145, 147 
 
 163 
 
 814 
 
 71 
 
 680 
 
 907 
 
 432 
 
 585 
 
 757 
 
 647, 649 
 
 152 
 
 212 
 
 231, 272 
 
 514, 517 
 
 499 
 
 602 dd 
 
 253 
 
 863, 869 
 
 201 
 
 328 
 
 752 
 
 512 
 
 240 
 
 481
 
 CXVl 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Pool V. Harrison 
 
 
 65, 160 
 
 V. Lloyd 
 
 
 167 
 
 V. Morris 
 
 
 628 
 
 V. Phillips 
 
 
 147 
 
 Poole I'. Anderson 
 
 
 411 
 
 V. Franks 
 
 
 820 
 
 V. Glover 
 
 
 602/ 
 
 V. Munday 
 
 407, 
 
 454, 4G7 
 
 V. Pass 243, 330, 602, 9U1, 910 
 
 Poolev V. Quilter 195, 199, 428 
 
 Poor V. Hazleton 188, 639, 641 
 
 Poor of Clielnisford v. Mildmay 742 
 
 Pope V. Brandon 602 e 
 
 V. Burlington Savings Bank 82 
 
 V. Dapray 142, 166 
 
 V. Durant 602 g 
 
 V.Elliott 386 a, 555 
 
 V. Farnsworth 848, 851 
 
 V. Jackson 610 
 
 V. Pope 113, 114 
 
 V. Whitconib 250, 255, 257, 258 
 
 Pophain V. Bamfield 308 
 
 V. Brooke 178, 210 
 
 Popkin V. Sargent 723 
 
 Poppleton and Jones' Contract, In re 593 
 
 Porcher v. Reid 655 
 
 V. Daniel 668 
 
 Pore}' t". Juxon 94 
 
 Portarlington v. Soulby 71, 72 
 
 Porter v. Baddeley 551 
 
 V. Bank of Rutland 86, 242 
 
 V. Doby 305, 359, 370 
 
 V. Dubuque 237 
 
 V. Morris 330 
 
 V. Powell 612 
 
 V. Raymond 330 
 
 V. Tournay 547 
 
 V. Watts 901 
 
 V. Williams 590 
 
 V. Woodruff 195 
 
 Porter's Case 693, 700 
 
 Porter's Estate 465 
 
 Portington v. Eglington 189 
 
 Portington's Case, Lady 94 
 
 Portland S. Co. v. Dana 122 
 
 V. Locke 828 
 
 Portlock V. Gardner 228, 246, 745, 864. 
 
 865, 907, 923 
 
 Portmore v. Morris 226 
 
 V. Taylor 188 
 
 Portsmouth v. Fellows 275, 282 
 
 Posev V. Cook 305 
 
 Post'i;. Rohrbach 382, 736 
 
 Postage Stamp Automatic Delivery Co., 
 
 In re 207 
 
 Postell V. Postell 380 
 
 Postlethwaite, Re 197, 861 
 
 Potter V. Chapin 748 
 
 V. Chapman 19, 505, 507, 510, 511, 
 
 V. Couch 378,671,827 a 
 
 V. Gardner 598, 794, 795, 800 
 
 V. Hollister 72 
 
 V. Jacobs 231 
 
 V. McDowall 243 
 
 V. Pearson 205 
 
 V. Saunders 217 
 
 V. Thornton 733, 736, 748 
 
 V. Thurston 724 
 
 Pottle V. Lowe 511 6 
 
 Pottow V. Fricker 319 
 
 Potts, Ex parte 275, 280, 282, 618 
 
 V. Potts 372 
 
 V. Philadelphia Assoc. 710 
 
 V. Richards 555 
 
 Pott's Appeal 652 
 
 Poullain v. Poullain 200 
 
 Powell V. Att.-Gen. 099 
 
 V. Brandon 380 
 
 V. Cleaver 455 
 
 V. Cobb 194 
 
 V. Evans 438, 440, 444, 465 
 
 V. Glen 312 
 
 V. Glover 430 
 
 ?'. Hankey 665 
 
 V. Knox 343, 414 
 
 V. Merritt 327, 437 
 
 V. Monson, &c., Blanuf. Co. 126, 132, 
 
 137 
 
 r. Murrav 199, 228, 229, 230, 666 
 
 V. Powell" 126, 133, 468, 900, 918 
 
 V. Price 361, 362, 828 
 
 V. Tuttle 409, 411 
 
 V. Wright 885 
 
 Power V. Lester 684 
 
 Powers V. Bergen 610 
 
 V. Bullwiukle 378, 466 
 
 V. Hale 187 
 
 Powerscourt i'. Powerscourt 701, 729 
 
 Powis r. Burdett 580 
 
 V. Corbett 568 
 
 Powlett V. Herbert 419, 466, 844, 900 
 
 Powys V. Blagrave 477, 540, 552 
 
 V. Capron 506 
 
 V. Mansfield 144 
 
 Poythress v. Poythress 819 
 
 Pracht & Co. ti.'Lange 437 a 
 
 Prance v. Sympson 862 
 
 Prandlev v. Fielder 668 
 
 Prankefd v. Prankerd 126, 146, 147 
 
 Prather v. McDowell 765 
 
 Pratt V. Adams 596, 597, 600 
 
 V. Aver 81 
 
 V. Barker 190, 204, 210 
 
 V. Beaupre 158, 814 
 
 V. Church 117 
 
 V. Flamer 66 
 
 V. Jenner 671 
 
 V. Matthew 66 
 
 V. Oliver 768 
 
 V. Philbrook 171, 175 
 
 V. Pond 167 
 
 V. Rice 499 
 
 V. Roman Cath. Orphan Asylum 699, 
 
 730 
 
 V. Sladden 157, 158 
 
 V. Thornton 195 
 
 V. Trustees 114 
 
 V. Vanwyck 232 
 
 Prav V. Hedgeman 398 
 
 'v. Pierce 299, 302 
 
 Pray's Appeal 440, 465 
 
 Preachers' Aid Soc. v. England 300, 312 
 
 V. Rich 724, 730, 748 
 
 Prendergast v. Lushington 4-39 
 
 V. Prendergast 450, 451, 509, 510, 
 
 511, 547, 548 
 
 Prentiss v. Hall 920 
 
 V. Paisley 658
 
 INDEX TO CASES CITED. 
 [Eeferenceg are to sections.] 
 
 CXVll 
 
 Pre«ant f. Goodwin 
 
 ll!t 
 
 Presbyterian (.'ong. v. Johnston 
 
 17, .-WS 
 
 rrescott r. I'itts 
 
 2r,2 
 
 V. Walker 
 
 :i>> 
 
 t>. Ward 
 
 84 ;j 
 
 V. Wright 
 
 171 
 
 Presley v. l)avis 
 
 615, 8i;.J 
 
 V. Strihliiig 
 
 3;{() 
 
 Preston v. Casner 
 
 8-2 
 
 V. (Irand 
 
 885 
 
 I'. Ilorwitz 
 
 805 
 
 V. McMillan 
 
 127 
 
 V. Melville 544, 545 
 
 V. Tiil.bin 222 
 
 Prevo r. Walters 12ii 
 
 Prevost V. Clarke 112, 251 
 
 V. Gratz 82, 197, 205, 228, 5'J6, 745, 
 
 850,863,865,918 
 
 Prewett v. Buckingham 8f)-'{ 
 
 t'. Coopwood 194 
 
 I'. Laud 602o, 6rtl 
 
 Prey v. Stanley 671 
 
 Price, Kx parte 480 
 
 V. Anderson 440, 544, 545 
 
 V. Uassett 248 
 
 V. Berriiigton 35, 18i) 
 
 V. Biakeniore 775, 837, 841, 842 
 
 V. Hrown 127 
 
 V. Byrn 228, 229, 869 
 
 V. Courtney 511 b 
 
 V. Cutts 918 
 
 V. Dewhurst 182 
 
 V. Gibson 348 
 
 V. Great Western Elailway 752 
 
 V. Hewitt 170 
 
 V. liuey 766 
 
 V. Loaiicn 907 
 
 V. Lovett 69 
 
 V. Maxwell 697, 700, 730, 748 
 
 V. Minot 17, 82 
 
 V. Miilford 863, 865 
 
 I'. I'hillips 166 
 
 V. Pickett 556 
 
 V. Price 98, 100, 108, 219, 223, 568 
 
 V. Reeves 92 
 
 Price's Appeal 860, 869. 9!);) 
 
 Prichard v. Ames 647, 648 
 
 Priddvr. Rose 611 
 
 Pride ■». Fooks 371, 397, 417, 457, 462, 
 
 472, 844, 894, 902 
 
 Prideaux v. Lonsdale 104, 194 
 
 Priestley v. Ellis 593 
 
 V. Lamb 636 
 
 Prie^tman r. Tindall 848, 876 
 
 Primrose, In re 922, 928 
 
 r. Broinlev 200 
 
 Prince r. Ileylin 802 
 
 V. Mine" 618, 915 
 
 V. Ladd 281 
 
 V. Logan 618 
 
 V. Sisson 299 
 
 Princeton v. Adams 733 
 
 Prindie r. Holcombe 200 
 
 Pring V. Pring 210 
 
 Pringler. Allen 541 
 
 Printup r. I'atton 145 
 
 Prior r. Mclntire 805 
 
 r. Talbot 263, 574 
 
 Prise V. Sisson 304, 357 
 
 Pritcliard r. Bailey 671 
 
 V. lirown 137, 165, 2U9 
 
 V. .luiiitliant 253 
 
 V. Wallace 127 
 
 Pritcliitt V. Nashville Trust Co. 545 
 
 Probate Court v. Niles 639 
 
 Proctor r. (,'lark 72 
 
 r. 'I'hrall 184 
 
 Proof V. iiiiics 192, 2tJ3 
 
 Prop, of Brattle Sq. Church v. Grant 380, 
 
 385 
 
 Prosens r. Mclntire 131, 143 
 
 I'rosser v. Edmonds 69 
 
 I'roiidfoot V. Ilmiie 827 
 
 Proud ley r. Fielder 626 
 
 Providence Inst'n i'. Carpenter 82 
 
 Pro VI St I if Edinburgh v. Aubrey 735, 741 
 
 I'rvii V. Hv me 229 
 
 Pryor i'. Hill 632,633 
 
 Puckett t). Benjamin 124 
 
 I'ugh, Kx parte 636, 657 
 
 r. Bell 137,195,217 
 
 r. Currie 127, 136 
 
 V. Haves 520 
 
 V. Mifler 106 
 
 V. Pugh 127, 135 
 
 V, Vaughan 329 
 
 Puleston r. J'uleston 32'J 
 
 Pulitzer v. Livingston 382 
 
 Pullen V. Ready 184, 513 
 
 Pulpress V. African Church 511, 511 f , "20 
 
 Pultenev v. Warren 871, 872 
 
 Pulvertoft r. I'ulvertoft 98, 100, 108, 307 
 
 I'undmaiin i\ Schoenich 828 
 
 Purcell f. MacNamara 206, 230 
 
 I'urdew v. ■Iack.'*on 626, 639, 641 
 
 Punlie i'. Whitney 598, 602-7 
 
 Purdom V. Pavey 72 
 
 Piinlv r. Lvnch 415 
 
 r. Purdv 132 
 
 Purefroy v. "Purefroy 585, 597, 602 
 
 Purycar r. Beard 660 
 
 I'. Purvear 660 
 
 Pusey V. Clemson 244, 918 
 
 r. Desbouvrie IS 4 
 
 Pushman v. Filliter 112, 113. 110 
 
 Pussnell V. Landers 002 //" 
 
 Putnam r. Gunning 242 
 
 Putnam Free School r. Fisher 499, 501 
 
 Pvbus t'. Smith 306, 655, 667, 670. 847 
 
 Pve, Ex parte 90. 98 
 
 V. George 217, 241, 828 
 
 Pyle, In re 448 
 
 Pvni V. Blackburn 226 
 
 V. Lockyer 388 
 
 Pvncent r. Pyucent 881 
 
 Pvott's Estate 449 
 
 Pyron v. Mood 263, 303 
 
 Q- 
 
 Quakenboss r. Southwick 281 
 
 (,)uackeiibush r. Leonard 132. 428, 770 
 ^»iiarles i-. Lacv 602 o, 002 y, 77 1 
 
 (^larrell v. Beckferd ".115 
 
 guayle v. Dwidson 112, 123 
 
 (iucadc's Trusts, Re 027 
 
 Queen v. Abrahams 17
 
 CXVUl 
 
 Queen v. Commissioners 
 V. Norfolk Comm'rs 
 V. Orton 
 
 Queen's College, In re 
 
 Queen's College Case 
 
 Quick V. Miller 
 
 Quigley v. Graham 
 V. Gridley 
 
 Quin's Estate 
 
 Quinc_v V. Att. Gen. 
 
 Quinn's Estate 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 328 
 478 
 17 
 74.3 
 743 
 669 
 676 
 231 
 920 
 401, 700 
 910 
 
 Quinn v. Marblehead Social Ins. Co. 98 
 V. Shields 82 
 
 Quirk V. Liebert 195 
 
 E. 
 
 Rabb V. Flenniken 466 
 
 Kaby v. Ridehalgh 457, 467, 848 
 
 Rachfield v. Careless 94, 150 
 
 Rackham v. Siddall 245, 265, 304, 315, 
 
 337, 846 
 
 Radburn v. Jervis 572 
 
 Radcliff V. Radford 127 
 
 Radcliffe, In re 243, 287 
 
 Radsall v. Radsall 162 
 
 Rae V. Meek 457 
 
 Rafferty v. Mallory 197 
 
 Raffety v. King • 856 
 
 Ragan v. Walker 127 
 
 Ragsdale v. Kagsdale 245 
 
 Rahn v. McElrath 591, 602 
 
 Rahun v. Rahun 82 
 
 Rahway Bank v. Brewster 658 
 
 Raiford v. Raiford 918 
 Raikes v. Ward 112, 117, 118, 386 a, 
 
 G20 
 
 Railroad Co. (G. C. & S.) v. Kelly 207 
 
 Railsback v. Williamson 137 
 
 Railton v. Matthews 178 
 
 Railway v. Barker 810 
 
 Railway Co. v. Ailing 873 
 
 R. & S! R. R. Co. V. Miller 910 
 
 Rainsford v. Rainsford 612, 847 
 
 Rakestraw v. Hamilton 232, 238 
 
 Ralphs V. Hensler 511 b 
 
 Ralston v. Telfair 150, 159, 891, 900 
 
 Ramage v. Ramage 12(j 
 
 Ramey v. Green 541 
 
 Ramsav v. Joyce 213 
 
 V. 'Marsh 298, 299, 301, 306 
 
 Ramsborger v. Ingraham 680 
 
 Ramsbottom v. Parker 192 
 
 Ramsdall v. Craighill 640 
 
 Ramsdell v. Edgarton 212, 291 
 
 V. Sigerson 592 
 
 Ramsden v. Hylton 184, 180 
 
 Ramsey v. Hanion 448 
 
 V. Merriam 602 s, 602 v 
 
 V. Ramsey 166, 918 
 
 Randal v. Hearle 112 
 
 V. Randal 111 
 
 Randall v. Bookey 151, 154 
 
 V. Constans 122, 163, 226 
 
 V. Errington 195, 851, 867 
 
 V. Morgan 79, 208 
 
 V. Pavne 515 
 
 V. Randall 114 
 
 Randall v. Phillips 136, 162 
 
 V. Rus.sell 538, 547 
 
 Randle v. Gould 072 
 
 Randolph v. East Birmingham Land 
 
 Co. 248, 457 
 
 V. Inman 891 
 
 V. Russell 538, 547 
 
 V. Wendel 380 
 
 Rankin v. Bancroft & Co. 129 
 
 V. Duryer 593 
 
 V. Harper 126 
 
 V. Lodor 585, 593 
 
 V. Porter 206 
 
 t'. Rankin 766 
 
 Ransome v. Burgess 612, 615 
 
 Rapalje v. Hall 468, 918 
 
 Raphael t;. Bank of England 837 
 
 V. Boehm 471, 472, 847, 901 
 
 V. Mullen 58, 76 
 
 Rarick v. Vandevier 133 
 
 Rashleigh v. Master 566, 747, 891, 894 
 
 Rastel V. Hutchinson 135 
 
 Ratcliffe v. Dougherty 676 
 
 r. Elli.son 226 
 
 V. Graves 464 
 
 V. Huntley 674 
 
 V. Winch 440, 482 
 
 Rathburn r. Clark 602 r 
 
 V. Platner 596 
 
 V. Rathburn 162 
 
 Ravisies v. Allston 591 
 
 Rawe V. Chichester 196 
 
 Rawleigh's Case 147 
 
 Rawlings v. Adams 324 
 
 V. Fuller 874 
 
 Rawlins v. Goldfrap 615 
 
 Rawson v. Lampeman 299 
 
 V. Nicholls 682 
 
 Ray, £x parte 647, 648 
 
 V. Adams 112 
 
 V. Doughty 415, 417, 418 
 
 r. Rung 322 
 
 V. Simmons 79, 99, 587 
 
 Ravbold v. Raybold 82, 127, 900, 918 
 
 Ravi V. Rayl 1-37 
 
 Raymond v. Holden 17. 328 
 
 V. Webb 764, 770 
 
 Ravner v. Mowbray 250, 257 
 
 ' V. Pearsall 225 
 
 Raynes v. Raynes 454 
 
 RaVnolds r. Hanna . 827 a 
 
 Rea V. Williams 1-36 
 
 Reach i'. Kennegate 181, 226 
 
 Read v. Brewer 658 
 
 V. Devavnes 272 
 
 V. Head' 544, 545 
 
 V. Huff 143 
 
 V. Lichfield 571 
 
 V. Patterson 248 
 
 V. Power 320 
 
 V. Robinson 97, 259, 593 
 
 V. Snell 359, 363. 369 
 
 V. Steadman 94, 152, 437 
 
 V. Truelove 261, 264, 268, 401 
 
 Readdy v. Pendergast 201 
 
 Reade v. Livingstone 647 
 
 V. Reade 342, 871, 872 
 
 V. Silles 724 
 
 V. Sparkes 886, 888, 500
 
 INDEX TO CASES CITED. 
 [Keferences are to sections.] 
 
 CXIX 
 
 Reading v. Wilson 
 
 
 
 607 
 
 Ready v. Kearsley 
 
 
 
 76, 2'jy 
 
 Reagan v. McKibben 
 
 
 
 127 
 
 Rearich v. Swineheart 
 
 
 
 226 
 
 Rector f. Fitzgerald 
 
 
 
 22;j 
 
 t>. Gibl)on 
 
 
 
 127 
 
 Rede v. Oakes 
 
 
 
 780 
 
 Redenour v. Wherritt 
 
 
 
 260. 261 
 
 Redfern v. Middleton 
 
 
 
 2y'j 
 
 Red tit-Id v. Kedtield 
 
 
 
 8U2 
 
 Redlbnl v. Catroa 
 
 
 
 2.J3 
 
 V. Gibson 
 
 232 
 
 ,235 
 
 , 237, 2:JU 
 
 Redlieitner v. Pyron 
 
 5U8 
 
 794 
 
 7'J8, 800 
 
 Redingtun v. Kedington 
 
 126 
 
 Ul, 
 
 l.J'J, 143, 
 
 
 145 
 
 ,146 
 
 , 147, 347 
 
 Redwick, In re 
 
 
 
 275 
 
 Redwood V. Riddick 
 
 
 
 863, 880 
 
 Reece v. Allen 
 
 
 17, 328, 602 na 
 
 V. Frve 
 
 
 
 433, 863 
 
 Reech v. kennegal 
 
 
 
 900 
 
 Reed v. Beazley 
 
 
 
 672, 673 
 
 V. Buys 
 
 
 
 658 
 
 V. Dickey 
 
 
 
 217 
 
 V. Gordon 
 
 
 
 301 
 
 V. Johnson 
 
 
 
 601 
 
 V. Lukena 
 
 
 82 
 
 122, 231 
 
 V. Marble 
 
 
 
 438 
 
 t". N'orris 
 
 
 
 206 
 
 V. O'Brien 
 
 
 
 102, 878 
 
 V. I'ainter 
 
 
 
 137, 865 
 
 V. Warner 
 
 
 
 206 
 
 V. Whitney 
 
 
 
 324, 342 
 
 Reede r. Emery 
 
 
 
 590 
 
 Reeder v. Barr 
 
 
 
 242 
 
 Rees, Kx parte 
 
 
 
 282 
 
 V. Keith 
 
 
 
 633, 640 
 
 V. Livingston 
 
 
 
 82 
 
 V. Waters 
 
 
 627, 
 
 623, 631 
 
 V. Williams 
 
 
 315 
 
 353, 469 
 
 Reese i-. Holmes 
 
 
 
 633 
 
 V. Meetze 
 
 
 
 917 
 
 V. Mum an 
 
 
 
 127 
 
 V. Wallace 
 
 
 
 226 
 
 V. Wyman 
 
 
 
 171 
 
 Reeside i''. Peter 
 
 
 764. 
 
 770. 782 
 
 Reeve v. Att.-Gen. 40, 
 
 308, 
 
 325, 
 
 705, 721, 
 
 
 
 722, 
 
 729, 731 
 
 V. Parkins 
 
 
 
 816 
 
 V. Kocher 
 
 
 
 632 
 
 r. Strawn 
 
 
 
 133 
 
 Reeves v. Baker 
 
 
 
 112, 113 
 
 V. Hrayton 
 
 
 
 299 
 
 V. Hrvmer 
 
 
 
 615 
 
 r. Dougherty 
 
 
 
 855 
 
 V. Evans 
 
 
 
 133 
 
 V. Heme 
 
 
 
 514 
 
 V. Tnppan 
 
 
 
 248 
 
 Reformed Dutch Church 
 
 V. Mott 
 
 744 
 
 Keggs r. Swan 
 
 
 
 82 
 
 Regina r. Fletcher 
 
 
 
 846 
 
 V. Shee 
 
 
 
 328 
 
 V. White 
 
 
 
 478 
 
 Rehden i\ Weslev 
 
 417, 
 
 446, 
 
 848. 876 
 
 Reichenhach v. Ouinn 
 
 
 
 715 
 
 Reid V. Bank of Slobile 
 
 
 
 828 
 
 V- Blackstone 
 
 
 
 112 
 
 V. Fitch 82 
 
 ,88, 
 
 127. 
 
 142, 143 
 
 V. Gordon 
 
 
 6, 
 
 321. 765 
 
 V. Lamar 
 
 
 
 655, 661 
 
 lieid V. Morrison 
 
 
 324 
 
 V. Mullius 
 
 
 433, 782 
 
 r. Ktid 
 
 79, 82, 24« 
 
 , 277, 297 
 
 r. Shergold 
 
 
 5116 
 
 V. Vanarsdale 
 
 
 97 
 
 Reiff V. Horst 
 
 
 587 
 
 Keil V. Baker 
 
 
 602 66 
 
 Keilly V. Wiiipple 
 
 
 95 
 
 Reiiihard i'. Bank of Kentucky 
 
 593 
 
 Keiiihart r. Bradshaw 
 
 
 127 
 
 lielfr. Eberlv 
 
 
 861 
 
 Helfe I'. Kelfe 
 
 
 234 
 
 Kemick r. Butterfield 
 
 
 602 o 
 
 Kenmant i'. Hood 
 
 
 903 a 
 
 Ken r. Bulkeley 
 
 
 784 
 
 lietiard v. Graydon 
 
 
 592 
 
 Kendlesham v. Meux 
 
 
 768, 784 
 
 Kene r. (Jakes 
 
 
 773 
 
 Uenew t\ Butler 
 
 
 195 
 
 Kennecker v. Scott 
 
 
 675 
 
 Kennie r. Ritchie 
 
 
 275, 670 
 
 f. Young 
 
 
 870 
 
 Renwick r. Kenwick 
 
 
 631 
 
 Kenz V. Stoll 
 
 
 83 
 
 Reorganized Church v. 
 
 Church of Christ 86 1 
 
 Repp V. Repp 
 
 
 232, 239 
 
 Reresby v. Newland 
 
 
 578 
 
 Resor v. Kesor 
 
 
 127 
 
 Revel V. Revel 
 
 
 639 
 
 Revell r. Hussey 
 
 
 122 
 
 Rovett V. Harvey 
 
 
 2»4 
 
 Reynell v. Sprye 
 
 171, 173 
 
 187, 214 
 
 Reynes v. Dumont 
 
 
 247 a 
 
 Keynish v. Martin 
 
 512 
 
 514, 517 
 
 Reynolds, Kx parte 
 
 198 
 
 209, 275 
 
 V. Bank of Virginia 
 
 594 
 
 1'. Brandon 
 
 
 476 a 
 
 V. Bristow 
 
 
 715 
 
 V. Caldwell 
 
 
 126 
 
 V. Hennessy 
 
 
 861 
 
 V. Jones 
 
 240, 
 
 346, 871 
 
 V. Morris 
 
 
 132 
 
 V. Sisson 
 
 
 910 
 
 V. Stark County 
 
 
 31 
 
 I'. .Sumner 
 
 
 855, 863 
 
 V. W.ilker 
 
 
 468 
 
 I'. Waller 
 
 
 191 
 
 Reynolds's Settlement, 
 
 In re 
 
 275 
 
 Rex V. Anstrey 
 
 
 511 6 
 
 V. Commissioners 
 
 
 910 
 
 V. Fssex 
 
 
 910 
 
 V. Flockwood 
 
 
 414 
 
 V. Lexdale 
 
 
 286 
 
 V. Nctherseal 
 
 
 93 
 
 V. Newman 
 
 
 700 
 
 V. Northwingfield 
 
 
 214 
 
 r. Partington 
 
 
 718, 724 
 
 Rex V. Wall.ice 
 
 
 270 
 
 Rham r. North 
 
 
 205 
 
 Rhea r. Tucker 
 
 
 132 
 
 Rhett r. Mason 
 
 
 119, 250 
 
 Rhinelander v. Harrow 
 
 
 220 
 
 Rhoades i'. Rhnndos 
 
 
 615. 616 
 
 R. I. Hospital Trust Co 
 
 . V. Harris 448. 549 
 
 r. Olnov 
 
 
 723 
 
 Rhodes r. Rates 
 
 
 104. 204 
 
 r. Green 
 
 
 126, 221 
 
 r. Sanderson 
 
 
 199 
 
 Rice r. Barrett 
 
 
 23
 
 cxx 
 
 Rice V. Burnett 
 V. Cleghora 
 V. Gordou 
 V. Kice 
 
 V. Satterwhite 
 V. Tlioiiii)soii 
 V. Tonnele 
 
 Rich V. Beaumont 
 V. Cockell 
 V. Jackson 
 
 Richards, In re 
 V. Baker 
 V. Chambers 
 V. Del bridge 
 V. Ilazzards 
 V, Holmes 
 
 INDEX TO CASES CITED. 
 
 [References are to sectiona.] 
 
 303, 310, 311 
 195, lys 
 
 18 r 
 
 124, 127, 226 
 
 380 
 
 639 
 
 615, 617 
 
 656 
 
 647, 666, 668 
 
 226 
 
 511 a 
 
 516 
 
 633, 655 
 
 96, 99 
 
 591 
 
 602 0, 602 p, 602 «, 602 v, 
 782 
 V. Learning 238 
 
 V, Lewis 213 
 
 V. Manson 127 
 
 V. Merrimack, &c. Railway 754, 757, 
 
 758 
 V. Perkins 
 V. Reeves 
 V. Richards 
 V. Seal 
 Richardson, Ex parte 
 V. Adams 
 V. Baker 
 
 V. Bank of England 
 V. Bleight 
 
 818 
 
 104 
 
 79, 640 
 
 415 
 
 454, 585 
 
 137, 181 
 
 232 
 
 826, 827 
 
 186 
 
 116, 259 
 
 921 
 
 133 
 
 185 
 
 271, 503. 876 
 
 260, 848, 876, 877 
 
 195, 230 
 
 885 
 
 200 
 
 126 
 
 97, 98, 101 
 
 237 
 
 903 a 
 
 430 
 
 310, 312, 647, 666, 677 
 
 138 
 
 V. Chapman 
 
 V. Cole 
 
 V. Daj' 
 
 V. Eyton 
 
 V. Hulbert 
 
 V. Jenkins 
 
 V. Jones 
 
 V. Larpent 
 
 V. Linney 
 
 V. Mounce 
 
 V. Richardson 
 
 V. Ridgely 
 
 V. Rusbridge 
 
 V. Spencer 
 
 V. Stodder 
 
 V. Taylor 
 
 V. Thompson 226 
 
 V. Woodburr 336, 338 
 
 Richelieu Hotel Co. v. Miller 790 
 
 Richen v. White 645 
 
 Richerson, In re 448 
 
 Richeson v. Ryan 343 
 
 Richmond v. Adams Nat. Bank 200 
 
 V. Davis 484, 736 
 
 V. Hughes 602 q 
 
 V. Tavloe 748 
 
 V. Vobrhees 511 6, 678 
 
 Richter v. Jerome 875 
 
 Richwine v. Keim 641 
 
 Rick's Appeal 171 
 
 Ricker, Re 471 
 
 V. Moore 122 
 
 Ricketts v. Bennett 486 
 
 V. Murrav 127 
 
 V. Ricketts 468 
 
 Rickptts's Trusts 784 
 
 Riddle v. Emerson 86 
 
 V. Mandeville 244 
 
 Riddle v. Whitehill 
 
 127, 863 
 
 Ridi'out V. Dowding 
 
 151, 158 
 
 V. Lewis 
 
 665 
 
 Rider v. Bickerton 
 
 230 
 
 V. Hulse 
 
 645 
 
 V. Kidder 
 
 126, 137, 139, 242 
 
 V. Mason 
 
 386 a, 555 
 
 V. Maul 
 
 230 
 
 V. Rider 
 
 130 
 
 v. Sisson 
 
 458, 768 
 
 Ridgeley v. Johnson 
 
 274, 411, 412 
 
 Ridgely v. Cross 
 
 253 
 
 Ridge way, Ex parte 
 
 195, 457 
 
 Ridgwav v. Wharton 
 
 84 
 
 Kidley,Vee 
 
 071 
 
 Ridley v. Hetmau 
 
 855 
 
 Rife V. Geyer 
 
 118, 307, 311, 386 a 
 
 Rigby, Ex parte 
 
 404, 409, 411 
 
 Kigden v. Vallier 
 
 136, 364 
 
 V. Walker 
 
 132 
 
 Riggan v. Kiggan 
 
 104 
 
 Rigges V. Swann 
 
 75 
 
 Riggs V. Murray 
 
 590, 591 
 
 V. Palmer 
 
 181 
 
 Right V. Cathill 
 
 263 
 
 V. Smith 
 
 298, 306 
 
 Riker v. Alsop 
 
 343, 848 
 
 Rile}' V. Garnett 
 
 308 
 
 V. Hampshire County Nat. Bank 76 
 
 V. Martinelli 
 
 169 
 
 Rindle, Matter of 
 
 54 
 
 Ring V. Hardwick 
 
 380, 509 a 
 
 Ringham v. Lee 
 
 243 
 
 Ringgold V. Bryan 
 
 239 
 
 V. Malott 
 
 436 
 
 V. Ringgold 418, 419, 420, 458, 463, 
 
 468, 471, 
 
 475, 602 V, 769, 770, 
 
 
 851, 918 
 
 Ringo V. Binns 
 
 206 
 588 
 
 V. R. E. Band 
 
 Rinker v. Bissell 
 
 39 
 
 Ripley v. Seligman 
 
 124, 131 
 242 
 
 V. Waterworth 
 
 Rippen r. Priest 
 
 338 
 
 Ripperdone ?'. Cozine 
 
 239 
 
 Ripple r. Ripple 
 
 569 
 
 Rippon V. Dawding 
 
 656 
 
 V. Norton 
 
 386 5 
 
 Rippv V. Gant 
 
 189, 190 
 
 Rishton r. Cobb 
 
 515, 637 
 
 Ritchie v. Broadbent 
 
 633 
 
 Rittgers v. Rittgers 
 
 117 
 
 Rittson V. Stordy 
 
 64, 327 
 
 Rivers v. Thayer 
 
 644 
 
 Rives V. Lawrence 
 
 172 
 
 Rivett's Cnse 
 
 739 
 
 Roach V. Caraffa 
 
 837, 863 
 
 V. Gavan 
 
 614 
 
 V. Haynes 
 
 511c 
 
 V. Hudson 
 
 215 
 
 V. Jelks 
 
 468 
 
 Roanoke B. & L. Co. 
 
 V. Simmons 233 
 
 Roarty v. Mitchell 
 
 602 p 
 
 Robards v. Wortham 
 
 564 
 
 Roharts v. Haley 
 
 127 
 
 Robb's Appeal 
 
 127,918 
 
 Robbins v. Bates 
 
 602 V, 
 
 V. Masteller 
 
 237 
 
 Robenett's Appeal 
 
 918
 
 INDEX TO CASES CITED. 
 [References are to eectlona.] 
 
 71,871 
 277 
 23 
 640, 653, 6fi0 
 018 
 803 
 841 
 633 
 324, 358, 359, 3C'J 
 301 
 200, 201, 310 
 97 
 873 
 127 
 145 
 KobcTts 100, 103, 104, 165, 195, 214 
 V. Kobinson 815 c 
 
 V. Kose 239 
 
 V. Spicer 649 
 
 V. Stuyvesant S. D. Co. 44 
 
 V. Tuustall 229, 230, 8GU 
 
 V. Ware 1-53 
 
 V. Wynne 182 
 
 V. Yancey 920 
 
 Robertson v. Bullions 733, 748 
 
 Roberdcau v. Rouse 
 Robert, Kx parte 
 
 V. (-'orniug 
 
 V. West 
 Roberts, Matter of 
 
 V. Armstrong 
 
 V. liroonQ 
 
 r. CoUett 
 
 V. Dixwell 
 
 V. Kingsley 
 
 r. Mo.selcy 
 
 V. Mulliiider 
 
 V. New York El. R. Co. 
 
 V. Ojip 
 
 V. Kemy 
 
 V. Claskey 
 
 V. Collier 
 
 V. Gaines 
 
 V, Hardy 
 
 r. Johnson 
 
 V. Macklin 
 
 V. Norria 
 
 V. Paul 
 
 V. Rentz 
 
 V. Robertson 
 
 V. Scott 
 
 r. Skelton 
 
 V. Sublett 
 
 V. Wendell 
 
 V. Wood 
 Robinett's Appeal 
 Robins v. Deshon 
 
 I'. Embry 
 Robinson, Matter of 
 
 V. Allen 
 
 V. Appleton 
 
 V. Bishop 
 
 V. Briggs 
 
 V. Burritt 
 
 V. Butler 
 
 I'. Comyns 
 
 V. Cox 
 
 V. Cudwin 
 V. Cullum 
 V. Cuming 
 V. Dart 
 V. Gee 
 V. Geldard 
 V. Grey 
 V. Hardcastle 
 V. Harkin 
 V. Hook 
 V. Huffman 
 V. Jones 
 V. King 
 t'. I^ownter 
 V. Macdonald 
 V. ^laiilden 
 V. Miller 
 
 Robinson v. Pett 
 V. Pierce 
 V. Preston 
 V. (^ueen 
 V. Robinson 
 
 259, 428, 
 
 127, 134, 
 
 058 
 546, 547 
 262, 499, 501, 602 m 
 511 a 
 366, 662, 815 a 
 141 
 633, 861 
 602 /j 
 142 
 215 
 826 
 122 
 593, 594, 602 e 
 901 
 864 
 470 
 343 
 287, 588, 590, 592 
 259, 277, 282 
 253 
 234, 238 
 381 
 202 
 166 
 602 y 
 304 
 214 
 199 
 602 y 
 13, 347 
 661 
 214 
 573 
 298, 305, 310 
 383 
 813, 848, 863 
 855 
 673 
 127 
 210 
 597, 795, 802, 803. 805 
 08 
 67, 330 
 324 
 
 398, 440, 457, 458, 
 
 V. Schmitt 
 
 V. Smith 
 
 V. Tavlor 
 
 V. TiJkell 117, 
 
 V. Townshend 
 
 V. Wiieelwright 
 
 V. Wotlper 
 Robinson's Trust, In re 
 liobison V. Codman 
 Robles V. Clark 
 Robson V. Flight 19, 
 
 V. Harwell 
 Roby V. Boswald 
 
 0. Colehour 
 
 V, Smith 
 Roca V. Byrne 
 Roch V. C'allen 
 Rochdale Canal Co. v. King 
 Roche, hi re 275, 279, 
 
 V. Farnsworth 
 
 V. George 
 
 V. Hart 463, 
 
 V. O'Drien 
 Rochefoucauld v. Boastead 
 
 Rochell V. Tompkins 
 Rochester, Jn re 
 V. Att. Gen. 
 Rochford v. Hackman 
 Rochfort V. Fitzmaurice 
 
 362, 369 
 
 V. Seaton 
 Rockwood V. Rockwood 
 Roden v. Jaco 
 
 V. Murphy 
 Rodgers v. Marshall 
 
 V. Rodgers 
 Rodman v. Munson 
 Rodney v. Chambers 
 Rodriquez i'. Hefferman 
 Roe V. JefFery 
 
 V. Read 
 
 V. Tranmer 
 
 V. Vingut 
 Rogan V. Walker 
 Roger's Trust 
 Rogers, Jn re 
 
 V. Acaster 
 
 V. Adams 
 
 V. Bonner 
 
 V. Bumpass 
 
 i\ Daniel 
 
 V. Dill 
 
 V. Donnellan 
 
 V. Earl 
 
 t'. Fales 
 
 V. Jones 
 
 V. Keokuk 
 
 V. Linton 
 
 r. Ludlow 
 
 r. ^larshall 
 
 V. Murray 
 
 CXXl 
 
 904, 916, 918 
 321 
 136 
 568 
 147, 164, 187, 
 462, 468, 469, 
 551, 607 
 377 
 112, 207, 607 
 151, 152 
 118, 020, 624 
 583 
 671 
 642 
 117 
 322, 324 
 140, 518 
 273, 530, 803 
 86, 226 
 076 
 79, 127, 206 
 55 
 828 
 862 
 869 
 290, 291, 292 
 199 
 137 
 464, 468, 894 
 851, 861, 867 
 162, 
 246, 828 
 661 
 451 
 746 
 388, 555 
 359, 300, 361, 
 , 371, 372, 374 
 813 
 1S2 
 602 /> 
 330 
 107, 108 
 541 
 783 
 672 
 243 
 380 
 336, 337 
 379 
 398, 511 6 
 602 d 
 556 
 472 
 633 
 828 
 239 
 639 
 843 
 610 
 126 
 226, 301 
 r,64 
 223 
 74 M 
 883 
 310, Of^O 
 828 
 133
 
 cxxu 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Rogers v. Patterson 
 
 606 
 
 Rossiter v. Trafalgar Life Asi 
 
 . Co, 779 
 
 V. Ramey 
 
 79 
 
 Rosslyn's Trust 
 
 395 
 
 V. Kogers 59, 128, 1-37, 
 
 145, 151, 153, 
 
 Rotcli V. Livingston 
 
 891 
 
 163, 206, 297, 559, 
 
 562, 600, 672, 
 
 Roth, Be 
 
 465 
 
 
 698, 826 
 
 Rothmaler v. Myers 
 
 272 
 
 V. Simmons 
 
 134, 215 
 
 Rothschild v. Daugher 
 
 223 
 
 V. Skillicorne 
 
 795, 796, 800 
 
 V. P'rank 
 
 264 
 
 V. Smith 
 
 661 
 
 Roth well V. Dewea 
 
 126, 135, 215 
 
 V. Soutten 
 
 616 
 
 V. Rothwell 
 
 826, 827 
 
 V. Tliomas 
 
 699 
 
 Roupe V. Atkinson 
 
 633 
 
 T. Tyley 
 
 126 
 
 Rous V. Jackson 
 
 503 
 
 V. Vail 
 
 591 
 
 Routh V. Howell 406, 
 
 443, 465, 914 
 
 V. Ward 
 
 661, 680 
 
 V. Kinder 
 
 595, 877 
 
 V. Wheeler 
 
 762 
 
 Routledge v. Dorrill 
 
 379 
 
 V. White 
 
 330, 668 
 
 Row V. Dawson 
 
 68 
 
 Roger's Appeal 
 
 891, 900 
 
 V. Jackson 
 
 645 
 
 Roger's Estate 
 
 393, 472 
 
 Rowan v. Chute 
 
 122 
 
 Roggenkamp v. Roggenkamp 
 
 166, 245 
 
 V. Lamb 
 
 199, 602 aa 
 
 Roland v. Coleman 
 
 243 
 
 Rowe, In re 
 
 863 
 
 Rolfe V. Budder 
 
 647 
 
 V. Beckett 
 
 490 
 
 V. Gregory 166, 828 
 
 840, 861, 865 
 
 V. Chichester 
 
 538 
 
 Roller V. Spihnore 
 
 172 
 
 V. Lewis 
 
 490 
 
 Rollins V. Marsh 
 
 607 
 
 V. Rowe 
 
 451, 666 
 
 V. Mitchell 
 
 181, 245 
 
 Rowe 11 V, Freese 
 
 137 
 
 Rolfs Case 
 
 693 
 
 Rowland v. Best 
 
 468 
 
 Ronald v. Buckley 
 
 607 
 
 V. Morgan 373, 390, 476 a, 928 
 
 Roofer v. Harrison 
 
 438 
 
 V. Witherden 
 
 444, 463 
 
 Rook v. Worth 
 
 605, 611 
 
 Rowletts i>. Daniel 
 
 299 
 
 Rooke V. Worrell 
 
 572 
 
 Rowley v. Adams 438 
 
 476, 535, 536 
 
 Rooker v. Rooker 
 
 828 
 
 V. Rowley 
 
 511a 
 
 Roome v. Phillips 
 
 500, 766 
 
 V. Union 
 
 665, 691, 849 
 
 Roosevelt v. EUithorp 
 
 891 
 
 Rowton V. Rowton 
 
 84, 324 
 
 V. Mark 
 
 559 
 
 Roy V. Beauforts 
 
 192 
 
 V. Roosevelt 
 
 441 
 
 V. Gibbon 
 
 825, 827 
 
 V. Van Alen 
 
 913 
 
 V. McPherson 
 
 149 
 
 Root V. Blake 
 
 126 
 
 V. Monroe 
 
 448 
 
 Roper, In re 
 
 646 
 
 Royal V. Royal 
 
 901, 913 
 
 V. Halifax 
 
 597, 785 
 
 Royall V. McKenzie 
 
 415 
 
 V. Holland 
 
 17 
 
 Royce v. Adams 
 
 277, 287 
 
 V. McCook 
 
 232, 238 
 
 Royds V. Royds 
 
 901 
 
 V. Radcliffe 
 
 152 
 
 Royer's Appeal 458, 
 
 463, 606, 607 
 
 V. Roper 
 
 679 
 
 Rozell ?'. Vansyckle 
 
 189 
 
 Roscommon v. Fowke 
 
 511c 
 
 Rucker v. Abell 
 
 149 
 
 Rose V. Crockett 
 
 275 
 
 Rudisell v. Watson 
 
 647, 649, 651 
 
 V. Cunningham 
 
 93 
 
 Rudland v. Crozier 
 
 119 
 
 V. Gibson 
 
 126 
 
 Rudy's Estate 
 
 160, 451 
 
 V. Rose 
 
 747, 891 
 
 Rudyard i\ Neirin 
 
 635 
 
 Roseben-v v. Taylor 
 
 584 
 
 Ruff r. Summers 
 
 918 
 
 Roseboom v. Mosheer 
 
 262, 270, 785 
 
 Ruffin V. Harrison 
 
 263 
 
 Rosenbaum v. Garrett 
 
 72 
 
 Rugby School 
 
 700 
 
 Rosenberger's Appeal 
 
 852 
 
 Rugefy V. Robinson 
 
 815 a 
 
 Rosevelt v. Fulton 
 
 171, 187 
 
 Ruhe V. Buck 
 
 658 
 
 Rose Will Case 
 
 724 
 
 Rumboll V. Rumboll 
 
 144, 145, 146 
 
 Rosher, In re 
 
 671 
 
 Rumfelt V. Clemens 
 
 680, 685 
 
 Roshi's Appeal 
 
 730, 733 
 
 Rumph V. Abercrombie 
 
 187, 189 
 
 Ross V. Barclay 
 
 499, 500 
 
 Rundle v. Rundle 
 
 139 
 
 V. Duncan 
 
 65 
 
 Rundlett v. Dale 
 
 590 
 
 V. Ewer 
 
 655 
 
 Runkle v. Gaylord 
 
 602 z 
 
 V. Gill 
 
 608 
 
 Runj'an v. Coster's Lessee 
 
 45 
 
 V. Goodsall 
 
 509 
 
 Rupp's Appeal 
 Rush V. Dilks 
 
 127 
 
 V. Hegenian 
 
 132, 136 
 
 656 
 
 V. Horton 
 
 222 
 
 V. Steele 
 
 468 
 
 T. Morton 
 
 639 
 
 V. Vought 
 
 173, 664 
 
 V. Ross 
 
 699, 826 
 
 Rush's Estate 
 
 459, 460 
 
 V. Whitson 
 
 237 
 
 Rushloy V. Mansfield 
 
 189 
 
 I'. Willoughby 
 
 672 
 
 Rushworth, Ex parte 
 
 210 
 
 Ross's Charity 
 
 701 
 
 Rushworth's Case 
 
 196 
 
 Ross's Trust 
 
 670 
 
 Russell V. Allen 133, 138, 
 
 142, 693, 730 
 
 Rossett i'. Fisher 
 
 602 V 
 
 V. Buckhout 
 
 466
 
 INDEX TO CASES CITED. 
 [Eeferences are to sectiooB.] 
 
 CXXlll 
 
 Russell V. Clark 
 
 
 
 
 244 
 
 Salinas t'. Pearsall 
 
 
 127 
 
 V. Clowes 
 
 
 
 
 4.J7 
 
 Salisbury, In re 
 
 
 605, 610 
 
 r. Coffin 
 
 
 
 
 299, 302 
 
 V. Bif^elow 
 
 
 498, 602 ib 
 
 t". Dickson 
 
 
 
 
 652 
 
 t'. Clarke 
 
 
 137 
 
 V. Du6on 
 
 
 
 
 602 /•/• 
 
 Salmon, In re 
 
 
 467 
 
 r. Jackson 77, 83 
 
 ,93, 
 
 lie. 
 
 120, 128, 
 
 V. Cuttfi 
 
 
 195, 199. 202 
 
 
 
 
 
 133, 714 
 
 c. Hoffman 
 
 
 232 
 
 v. Kellett 
 
 
 
 624, 
 
 6UU, 72(; 
 
 Salomans v. I^in^ 
 
 
 877 
 
 t'. Kennedy 
 
 
 
 
 251 
 
 Saliiway v. Strawbridge 
 
 
 340, 494, 495 
 
 V. Lasher 
 
 
 
 
 604 
 
 Sal>bur\- t". Bagott 
 
 
 830 
 
 V. lAjile 
 
 
 
 
 126 
 
 c. lilack 
 
 
 171 
 
 V, Lorinp 
 f. McCall 
 
 
 
 
 544 
 
 Salt f. Chattaway 
 
 
 160 
 
 
 
 
 245, 343 
 
 Salter, Kx parte 
 
 
 617 
 
 V. Milton 
 
 
 
 
 815 a 
 
 f. Bradshaw 
 
 
 188 
 
 V. I'evtoa 
 
 
 
 24 
 
 12!), 803 
 
 r. Cavanagh 
 
 
 151, 855 
 
 V. I'luice 
 
 
 
 225 
 
 708, SOU 
 
 Saltern f. Melliuish 
 
 
 183 
 
 V. Kussell 
 
 
 
 
 7C8, 70'J 
 
 Saltmarsh v. Barrett 
 
 152, 
 
 158, 408, 470, 
 
 V. Southard 
 
 
 
 
 220 
 
 
 
 471 
 
 V. Woodward 
 
 
 
 
 593 
 
 f. Bean 
 
 
 209 
 
 Russell's Appeal 
 
 
 
 
 104 
 
 p. Bum 
 
 
 002 r 
 
 Case 
 
 
 
 
 52, 53 
 
 Saltonstall f . Sanders 
 
 687, 
 
 699. 705. 709, 
 
 Patent 
 
 
 
 
 G7 
 
 
 712 
 
 720, 724, 748 
 
 Russian Snratts' Patent, 
 
 In re 
 
 752 
 
 Saltoun V. Hanston 
 
 
 260 
 
 Kuston r. liuston 
 
 
 
 562, 
 
 565, 571 
 
 Salusbury f. Deuton 
 
 248, 251, 252. 255, 
 
 Kutjcers r. Kinj;sland 
 
 
 
 218 
 
 
 
 250, 714 
 
 Rutherford r. Kuff 
 
 
 
 
 191 
 
 Sal way r. Sal way 
 
 
 443, 635 
 
 Rutland v. Rutland 
 
 
 
 
 154 
 
 Sammes v. Richmond 
 
 
 894 
 
 Rutledge, Ex parte 
 
 
 
 
 550 
 
 Sanipay ». Gould 
 
 287, 
 
 288, 375, 509 
 
 i\ Smith 
 
 79, 83, 
 
 320, 
 
 598, 798 
 
 Sample r. CouliJon 
 
 
 134, 137 
 
 Ryall V. KoUe 
 
 68, 
 
 345, 
 
 438 
 
 835, 837 
 
 Sanborn v. Plowman 
 
 
 863 
 
 f. Kvall 
 
 
 
 82, 
 
 835, 839 
 
 r. Sanborn 
 
 
 97 
 
 Ryan r. Bibb 
 
 
 
 
 328, 330 
 
 Sanchez v. Dow 
 
 
 861 
 
 I". Dox 
 
 
 
 
 215, 226 
 
 Sandars v. Richards 
 
 
 809 
 
 I'. Doyle 
 
 
 
 
 217 
 
 Sanders r. Deligne 
 
 
 218 
 
 V. I^Iahan 
 
 
 
 
 252 
 
 I'. Miller 
 
 
 903 a 
 
 V. O'Connor 
 
 
 
 
 79 
 
 r. Page 
 
 
 633, 653 
 
 V. Porter 
 
 
 
 
 820 a 
 
 r. Rodney 
 
 
 672 
 
 V. Spurill 
 
 
 
 
 639 
 
 r. Rogers 
 
 
 460, 847 
 
 Rycroft i'. Christy 
 
 
 102 
 
 104 
 
 105, 049 
 
 Sanderson r. Pearson 
 
 
 918 
 
 Ryder, Matter of 
 
 
 
 
 010 
 
 r. Walker 
 
 12S 
 
 195, 198, 902 
 
 V. IJickerton 
 
 453 
 
 460 
 
 462 
 
 407, 848 
 
 V. White 
 
 724 
 
 730, 744, 748 
 
 V. French 
 
 
 
 
 849 
 
 Sanderson's Trust 
 
 119, 152. 386, 386 b 
 
 V. Iluise 
 
 
 
 
 676, 678 
 
 Sandes v. Cooke 
 
 
 358 
 
 V. Loomis 
 
 
 
 
 133 
 
 Sandford r. Flint 
 
 
 602 ee 
 
 Ryland r. Smith 
 
 
 
 
 639, 640 
 
 v. Jodrell 
 
 
 882 
 
 Rymer, Jn re 
 
 S. 
 
 
 
 720 
 
 Sandford Charity. 
 Sandon v. Hooper 
 Sands r. Cliamplin 
 
 V. Nugee 
 Sandys v. Sandys 
 
 
 282 
 915 
 560 
 
 502 
 578, 892 
 
 Saagar v. Wilson 
 
 
 
 
 197 
 
 t'. Watson 
 
 
 900 
 
 Sabin v. Heape 
 
 785, 
 
 800, 
 
 801, 
 
 802, 803, 
 805 
 
 Sanford r. Hamner 
 I'. Irby 
 
 
 166 
 305 
 
 r. Stickney 
 
 
 
 602 0, 602 V 
 
 V. Sanford 
 
 
 79,166 
 
 Sacia r. Berthoud 
 
 
 
 
 225, 810 
 
 Sangster r. Love 
 
 
 602 n 
 
 Sadd, In re 
 
 
 
 
 907 
 
 Sangston r. Gaither 
 
 
 592 
 
 Sadler v. Hobbs 
 
 261, 
 
 416, 417, 
 
 419, 421, 
 
 p. Gordon 
 
 
 63 
 
 
 
 
 
 422 
 
 Sansom r. Rumsey 
 
 
 183 
 
 V. Houston 
 
 
 
 
 600 
 
 Sargent v. Baldwin 
 
 
 104 
 
 V. Lee 
 
 
 
 
 543 
 
 t'. Bourne 
 
 
 118 
 
 V. Pratt 
 
 
 
 
 511a 
 
 v. Burdett 
 
 
 827 a 
 
 Sadler's Appeal 
 
 
 
 
 217 
 
 V. Cornish 
 
 
 43 
 
 SalTord t'. Hind 
 
 
 
 
 142,206 
 
 r. Franklin Ins. Co 
 
 
 98 
 
 V. Rantoul 
 
 
 
 
 79 
 
 V. Howe 
 
 ' 602 rf, 602 1. 602 n 
 
 Sa^e V. Culver 
 
 
 
 
 242 
 
 f. Sargent 
 
 
 551, 899 
 
 Sale V. Moore 
 
 
 
 112 
 
 113, 116 
 
 Sartill V. Robeson 
 
 
 324 
 
 V. Saunders 
 
 
 
 
 633 
 
 Satterwhite r. Littlefield 
 
 913 
 
 r. Thorn berry 
 
 
 
 
 114, 100 
 
 Saul r. Pattinson 
 
 
 517 
 
 Salem Mill Dam v. 
 
 Ropes 
 
 
 757 
 
 Saulsbury v. Corwin 
 
 
 658
 
 CXXIV 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Saulsbury f . Denton 
 
 112 
 
 Saunders v. Bournford 
 
 347 
 
 V. Collin 
 
 855 
 
 V. Cramer 
 
 208 
 
 V. Davies 
 
 571 
 
 V. Dehew 
 
 217, 218, 828 
 
 V. Gregory 
 
 456 
 
 V. Houghton 
 
 54G, 547 
 
 V. Leslie 
 
 235, 236 
 
 t'. Miller 
 
 908 
 
 V. Kichards 
 
 433, 848 
 
 V. Saunders 
 
 891, 896 
 
 V. Schmaelzle 
 
 334, 343 
 
 V. Yauticr 
 
 396, 509 a, 622 
 
 V. Webber 
 
 401, 410 
 
 Saunderson v. Steams 
 
 262 
 
 Saurez v. De Montigny 
 
 223 
 
 Savage v. Benhani 
 
 639 
 
 V. Brocksopp 
 
 176 
 
 V. Carroll 
 
 842 
 
 V. Dickson 
 
 891 
 
 V. Foster 
 
 53 
 
 r. O'Neil 
 
 676 
 
 V. Tvers 
 
 359 
 
 V. Williams 
 
 204 
 
 Savery ". King 
 
 202 
 
 Savilie V. Tancred 
 
 246 
 
 Savings Bank v. Bates 
 
 588 
 
 Savings Fund's Appeal 
 
 927 
 
 Sawtelle v. Witham 
 
 700 
 
 Sawyer v. Baldwin 
 
 903 a 
 
 v. Birchmore 
 
 924 
 
 V. Hoag 
 
 207 
 
 V. Hovey 
 
 186 
 
 V. Sawyer 
 
 669, 848 
 
 Sawyer's Appeal 
 
 262 
 
 Saxby v. Thomas 
 
 5116 
 
 Saxon V. Barksdale 
 
 225 
 
 Saxon Life Ass. Co., In re 
 
 851 
 
 Say V. Barnes 
 
 8.51, 918 
 
 V. Barwich 
 
 171, 191 
 
 Saye & Sale v. Jones 
 
 312 
 
 Saver's Trusts 
 
 385 
 
 Sayers, £x parte 
 
 345, 835, 837 
 
 Sayles v. Bates 
 
 678 
 
 V. Smith ' 
 
 602 m 
 
 Sayre v. Flourney 
 
 639, 642 
 
 V. Frederick 
 
 137 
 
 V. Townsends 
 
 132 
 
 Scadden Flat Co. v. Scadden 207 
 
 Scales V. Baker 842 
 
 V. Maude 98, 99, 101 
 
 Scanlan, In re 603 
 Scarborough v. Borman 646, 648, 652, 653 
 
 V. Parker 900 
 
 Scarisbrick v. Skelmersdale 160, 393 
 
 Scarpellini v. Acheson 640 
 Scarsdale v. Curzon 364, 373, 389 
 
 Scattergood v. Edge 377, 379 
 
 r. Harrison 432 
 
 Scawen v. Scawen 146, 147 
 
 Schaffer v. Lauretta 311 
 
 V. Wadsworth 920 
 
 Schaffner v. Grutzmacher 127 
 
 Schafroth v. Ambs 652, 680 
 
 Schammel v. Schammel 612 
 
 Schanck r. Arrnwsmith 576 
 
 Schanewerk v. Hoberecht 5116, 766 
 
 Schefiermeyer v. Schaper 181 
 
 Schell, In re 918 
 Schenck v. Barnes 96, 142 
 V. Ellenwood 782 
 V. Schenck 264, 341, 344 
 Schermerhorn v. Barhydt 238, 562, 566 
 V. Cotting 382 
 Schermerhorue v. Schenck 264, 344, 419 
 V. Schermerhorne 581 
 Schieffelin v. Stewart 462, 471 
 Schierloh v. Schierloh 126, 142 
 Schlaeper v. Corson 127 
 Schlessinger v. Mallard 160 
 Schley v. Brovra 828 
 V. Lyon 311, 330 
 Schluter v. Bowery S. Banks 51 
 Schnebly v. Ragaa 234 
 Schnure's Appeal 569 
 Schofield V. Jones 658 
 v. Wolley 863 
 Scholefield v. Redfern 544, 551 
 V. Templar 172 
 Scholev V. Goodman 672 
 Scholle V. Scholle 195 
 School V. Dunkleberger 117, 328 
 V. Kirwan 463 
 V. McCully 769 
 School Directors v. School Directors 865 
 School District v. Peterson 437 a 
 School Dist. Greenfield v. First Na- 
 tional Bank 443 
 School Trustees v. Wright 84 
 Schoolbred v. Drayton 501 
 Schoon maker r. Sheely 359 
 V. Van Wyke 428 
 Schoonoven v. Pratt 602 x 
 Schouler, Petitioner 276 a, 705, 715 
 Schroder v. Schroder 872 
 Schultze V. New York City 126 
 Schuster v. Schuster 143 
 Schutt V. Large 222 
 Schutter v. Smith 382, 391 
 Schuyler v. Hoyle 639, 640, 641 
 Schwartz v. Sears 602 cc 
 Schwartz's Estate 245, 765 
 Scoby V. Blanchard 137, 165 
 Score V. Ford 825 
 Scott, In re 290 
 Scott V. Atchison 456 
 V. Beach 60 
 V. Becher 816, 818, 827 
 V. Berkshire County S. Bank 82 
 V. Colburn 754 
 v. Cumberland 563 
 V. Davis 195, 428, 670 
 V. Depevster 207 
 V. Devlin 593 
 V. Dobson 546 
 V. Dorsey 918 
 V. Freeland 195, 205, 602 w 
 V. Gamble 602 v 
 V. Haddock 850, 864 
 V. Harbeck 82 
 V. Harris 79, 226 
 V. Hastings 438 
 V. Hollingworth 551 
 V. James 633 
 V. Kane 96 
 V. Knox 866 
 V. Mann 199
 
 DJDF.X TO CASES CITED. 
 [References are to sections.] 
 
 CXXV 
 
 Scott V. Moore 
 V. Nesbitt 
 V. N'icoll 
 t'. OrbinsoQ 
 V. I'urkins 
 V. Hand 
 V. Scott 
 
 t'. Sierra Lumber Co. 
 V. Spasliett 
 V. Steward 
 V. Surnam 
 V. Tlionipson 
 V. Tliorjie 
 
 301 
 71 
 
 87;i 
 
 232, 237, 2-i'J 
 
 54t; 
 
 275 
 
 C8.} 
 
 828 
 
 629, G32, CytJ 
 
 375, 760 
 
 58, 239, 345 
 
 210 
 
 55 
 
 V. Tyler 225, 512, 514, 516, 809, 810, 
 
 811, 815 
 
 V. West 393 
 
 Scott's F:state 891, 894 
 
 Scouiiden r. Hawley 325 
 
 Scowcroft, In rt 701 
 
 Scra^ffsr. Hill 233 
 
 Scriven v. Taplev 645 
 
 Scroggins v. Mcbougald 195 
 
 Scroggs V. Scroggs 511 a 
 
 Scroope v. Scroope 54, 146 
 
 Scrope's Case 511c 
 
 Scruggs V. Driver 41 
 
 Scudder v. Crocker 918 
 
 Scull V. Reeves 602 «, 602 m 
 
 Scully V. Delany 262, 419, 424, 440 
 
 V. Scully 878 
 
 Scultliorpe V. Burgess 161 
 
 V. TiUer 439 
 
 Scurlield v. Howes 416, 419, 421, 423, 
 
 424, 847 
 
 Seaburn v. Seaburn 748 
 
 V. Seagrave 674 
 
 Seale v. Seale 366 
 
 Seaman v. Cook 126, 127, 128, 132 
 
 V. Wood 385 
 
 Seamans v. Gibbs 816 a 
 
 Seamonds i'. Hodge 114 
 
 Sear v. Asbwell 103, 107 
 
 Searing v. Searing 639, 643, 647 
 
 Searle v. Law 90, 100 
 
 Sears v. Chapman 722 
 
 r. Choate 920 
 
 V. Cunningham 119 
 
 V. Livermore 782 
 
 V. Putnam 381, 382 
 
 V. Russell 312, 380, 383 
 
 V. Shafer 194, 201, 230 
 
 t". Smith 232, 237 
 
 Seaver v. Fitzgerald 381 
 
 V. Lewis 562, 560 
 
 Seaving v. Brinkerhoff 592 
 
 Second, &c. Church v. Desbrow 116 
 
 Second Cong. Soc. r. First Cong. Soc. 
 
 714,724, 748 
 Second Cong. Soc. North Bridge- 
 water I'. Waring 328 
 Security Co. v. Garrett 124 
 V. Snow 248. 2.52, 382 
 Seddon v. Connell ' 878, 879 
 Sedgwick v. Stanton 214 
 Sffger V. Leakin 358 
 Seek'v V. Jago 108 
 Seeling t-. Crawley 672 
 Seers r. Hind 900 
 Seesel v. Ewan 602 o 
 
 Segond r Garland 660 
 
 Segrave v. Kirwaa 181, 1H2 
 
 .Sfguin's Appeal 471 
 
 Sfibert r. Minneapolis, &c. Ry. Co. 894 
 
 SeibcTt's Appeal 
 .Seibold f. Clirisman 
 Seichrist's Appeal 
 .Seidler's Estate 
 Seitzinger's Estate 
 Selatter v. Cottam 
 Selby V. Alston 
 V. Bowie 
 V. Cooling 
 V. Stanley 
 Selden v. Vermiiyea 
 Selden's Appe;il 
 Seldner r. McCreery 
 Sell r. West 
 Sellers V. Reed 
 Seliew's Appeal 
 Sellick V. Mason 
 Selph V. Howland 
 Selsey v. Rhoades 
 Selyard v. Harris 
 Semphill v. Haj'ley 
 Semple v. Bird 
 Senhouse v. Earle 
 Sergeant v. Ingersoll 
 Sergison, Ex parte 
 
 V. Sealey 
 Servis v. Beatty 
 Seton's Decrees 
 Settembre v. Putnam 
 Sewall V. Boston W. P. Co. 
 V. Roberts 
 V. Wilmer 
 Sewell V. Baxter 
 V. J)enn 
 V. Moxsy 
 Sexton V. Hollis 
 Seymour v. Bull 
 V. Delancey 
 V. Freer 
 V. McAvoy 
 V. Milford, &c. Ry. 
 Seys t'. Price 
 
 Sh'ackleford v. Bank of Mobile 
 Shaeffer r. Sleade 
 Shafer v. Davis 
 Shaffer v. Watkins 
 Shainwald r. Davids 
 Shakeshaft, Ex parte 
 Shales V. Shales 
 Shall V. Biscoe 
 ShallcToss I'. Oldham 
 Shaltcr's Appeal 
 Shankiand's .-\ppenl 
 Shanley v. Baker 
 Shannon r. Bradstreet 
 
 ('. Cannev 
 Shaplaiul v. Smith 
 Shapleigh f. Pilsbury 
 Sharp, In re 
 V. Leach 
 f. Lmig 
 r. Maxwell 
 r. I'raft 
 
 Sharp 
 
 616, 715 
 
 143 
 
 206, 215 
 
 459 
 
 827 a 
 
 904 
 
 13, 347 
 
 770 
 
 768 
 
 237, 239 
 
 280 
 
 82 
 
 460, 790 
 
 212 
 
 378 
 
 764 
 
 386 a 
 
 681 
 
 206, 228, 229 
 
 877 
 
 512 
 
 232 
 
 8.34 
 
 218 
 
 54, 336 
 
 605 
 
 232 
 
 283 
 
 126, 127, 129 
 
 814 
 
 104 
 
 5116 
 
 139 
 
 150 
 
 101 
 
 126 
 
 769 
 
 187 
 
 82. 863 
 
 827 a 
 
 757 
 
 611 
 
 500, 591 
 
 173, 187 
 
 184 
 
 591 
 
 873 
 
 848, 876 
 
 146, 147 
 
 232, 238 
 
 204,210 > 
 
 490 
 
 299, 305, 386 m 
 
 160 
 
 704 
 
 680 
 
 298, .305, 312 
 
 299, 748 
 
 405 
 
 104 
 
 215 
 
 676 
 
 499 
 
 134, 
 
 271, 273, 290, 294, 337, 344, 
 503
 
 CXXVl 
 
 INDEX TO CASES CITED. 
 [ReferenceB are to sectionfl.] 
 
 Sharp V. Toy 
 
 V. Wrif,'ht 
 Sharpe r. Consent 
 
 V. San Paulo Ry. Co 
 Sharpless v. Adams 
 
 V. Welch 
 Sharpsteeu v. Tillow 
 Sharshaw v. Gibbs 
 Sliatler's Appeal 
 Shattock V. Shattock 
 Shattuck V. Cassidy 
 
 V. Freeman 
 Shaw, Kxpiirte 
 
 V. Borrer 
 
 r. Boyd 
 
 V. Bunney 
 
 t?. Barney 
 
 V. Conway 
 
 r. Delaware 
 
 V. Galbraith 
 
 V. Huzzey 
 
 V. Lawless 
 
 V. Mitchell 
 
 V. Norfolk Co. Railway 
 
 V. Pickthall 
 
 r. Read 
 
 r. Rhodes 
 
 r. Shaw 
 
 V. Spencer 
 
 V. Thackray 
 
 V. Turbett 
 
 r. Weigh 
 
 V. Wright 
 Shaw's Trusts, In re 
 Shay V. Sessamon 
 Shearer v. Loften 
 Shearin v. Eaton 
 Shearman v. Morrison 
 Sheatfield v. Sheatfield 
 Shee V. Hale 
 Sheener v. Lautzerbeizer 
 Sheet's Estate 
 Sheffield v. Buckingham 
 
 V. Orrery 
 
 t'. Parker 
 Sheidle v. Weishlee 
 Shelborne r. Inchquin 
 Shelby v. Perrin 
 
 V. Tardy 
 Sheldon v. Dodge 
 
 V. Dormer 
 
 V. Easton 
 
 V. Harding 
 
 V. Stockbridge 
 
 V. Wildman 
 Shellenberger v. Ransom 
 Shelley v. Nash 
 ShelleV's Case 
 Shelly V. Eldin 
 Shelt'har r. Gregorv 
 Shelton v. A. & T. Co. 
 
 V. Hadlock 
 
 r. Homer 
 
 V. Shelton 
 
 r. Watson 
 Shepard t\ Creamer 
 
 I'. Pratt 
 Shephard v. Richardson 
 
 034 
 
 8UU 
 
 388, 555 
 
 401, 873 
 
 82'J 
 
 438 
 
 783, 785 
 
 552, 554 
 
 771 
 
 658, 659, 663, 849 
 
 71 
 
 591, 593 
 
 33U, 337 
 
 476, 597, 789, 802, 915 
 
 34 
 
 199 
 
 97 
 
 891 
 
 104 
 
 320 
 
 546 
 
 112, 123, 907 
 
 626, 641 
 
 758, 761 
 
 903 a 
 
 143 
 
 395 
 
 129, 137 
 
 157, 158, 225, 800, 809, 
 
 810, 814, 846 
 
 191 
 
 890 
 
 314, 315 
 312 
 484 
 641 
 602 e 
 863 
 246 
 361 
 
 388, 555 
 
 590 
 
 81, 262 
 
 182 
 
 379, 516 
 465 
 667 
 226 
 237 
 
 126, 145 
 590 
 
 581, 597 
 734 
 133 
 699 
 863 
 181 
 88 
 
 357, 370 
 315 
 672 
 126 
 658 
 195, 308, 499 
 75 
 
 369, 371 
 
 225, 437 a 
 
 137 
 
 602 d 
 
 Siiephard v. Stark 
 SihL'pheid V. Buvia 
 
 V. Mauls 
 
 V. McEvers 38, 98, 261, 
 
 V. Nottidge 
 
 V. I'hilbrick 
 
 V. White 
 Sheppard, In re 
 
 V. Smith 
 Sheppard' s Trusts, In re 
 Sheppards v. Turpin 
 Sheratz v. Nicodemus 234, 
 
 Sheridan v. Jones 
 
 V. Joyce 808, 
 
 V. Welch 
 Sheriff v. Axe 
 
 t'. Butler 
 
 V. Neal 
 Sheril v. Shuford 
 Sherley v. Sherley 
 Sherman v. Baker 
 
 V. Burnham 
 
 V. Dodge 
 
 V. Leman 
 
 V. New Bedford S. Bank 
 
 V. Parish 
 
 I.'. Sandell 
 
 V. Sherman 
 
 V. Turpin 
 Sherrard r. Carlisle 
 
 t'. Harborough 
 Sherratt v. Bentley 
 Sherrington v. Yates 
 Sherwin v. Kenny 
 Sherwood, /jj re 
 
 V. Amer. Bible Soc. 
 
 V. Andrews 
 
 V. Read 
 
 V. Smith 
 
 V. Sutton 
 Shewell v. Dwarris 
 Shewen t;. Vanderhorst 
 Shibley v. Ely 
 Shields v. Atkins 
 
 V. Thomas 
 Shiers v. Higgons 
 Shine v. Gough 
 
 V. Hill 
 
 Shingle}', In re 
 Shinn'sEstate 
 Ship V. Hettrick 
 Ship Warre, In re 
 Shipbrook v. Hinchinbrook 
 
 Shipp r. Bowmar 
 Shipton V. Rawlins 
 Shirk V. La Fayette 
 Shirlej', Fx parte 
 
 V. Shattuck 
 
 V. Shirley 51, 277, 646, 
 
 7). Sugar Refinery 
 Shirl}' V. Ferrers 
 Shirras v. Caic 
 Shively v. Bowlbj' 
 Shockiey v. Fisher 
 Shoemaker v. Comm'rs 
 
 468 
 
 109 
 
 469 
 
 268, 274, 401, 
 
 594 
 
 112, 116 
 
 602 i6 
 
 143 
 
 282 
 
 900 
 
 275 
 
 865 
 
 235, 237, 238, 
 
 239 
 
 926 
 
 , 832, 835, 85« 
 
 602 A 
 
 432, 904 
 
 671 
 
 206, 215 
 
 918 
 
 79 
 
 571, 715 
 
 654 
 
 299 
 
 910 
 
 82 
 
 467, 602 X 
 
 137 
 
 569 
 
 655 
 
 632 
 
 152, 427 
 
 270, 271, 898 
 
 640 
 
 305 
 
 432, 923 
 748 
 
 98 
 
 411, 602 an 
 
 615 
 
 228 
 
 648 
 
 474, 481 
 
 540, 863 
 
 433, 863 
 828 
 191 
 218 
 781 
 121 
 465 
 462 
 
 68 
 
 416, 419. 421, 
 
 423, 424, 444 
 
 655, 6.56 
 
 876 
 
 55 
 
 65R 
 
 918 
 
 647, 649, 653. 
 
 666 
 
 232, 239 
 
 585, ROO 
 
 219 
 
 41 
 
 286 
 
 41
 
 INDEX TO CASES CITED. 
 
 CXXVU 
 
 [References are to sections.] 
 
 Shoemaker v. Smith 
 
 I'. Walker 
 Shoufstall V. Adams 
 Shook V. Shook 343 
 
 Shore v. Shore 
 
 V. Wilson 
 Short I'. Currier 
 
 V. Moore 
 
 V. Wilson 
 Shortel's Afipeal 
 Shortz V. Uiiiin^st 
 Shotweil V. Mott 699 
 
 r. Murray 
 Shoufe I'. Grilfitlis 
 Shouk V. lirown 
 Shovelton v. Shovelton 
 Shrewsbury' v. Hornbury 
 
 V. Shrewsbury 
 Shrewsbury, &c. Railway v 
 
 & N. W. Kiiilway 
 Shrewsbury Scliool, In re 
 Shryock r. Wafrgoner 
 Shubar v. Winding 
 Shuman v. Keigart 
 
 r. Shuman 
 Shumway i". Cooper 
 Shunk's Appeal 
 Shupe V. Bartlett 
 Shurtleff v. Witherspoon 
 Sickles t'. New Orleans 
 SiddoD r. Charrells 
 Sidle V. Walters 
 Sidmouth v. Sidmouth 130, 
 
 Sidney v. Shelley 
 Sid way v. Nichol 
 Sieman v. Austin 
 
 V. Schunck 
 Siemers v. Schrader 
 Siggers v. Evans 
 Sigournej' v. IMunn 
 Silcox I". Harper 
 Silk 17. Prime 
 Sillibourne v. Newport 
 Silsbury v. McCoon 
 Silverman r. Kristufek 
 Silvers v. Potter 
 Silverthorn v. McKiuister 
 Sinie V. Howard 
 Simes ». Eyre 
 Simmonds v. Borland 
 
 V. Palles 
 Simmons v. Baynard 
 
 I'. Hurrell 
 
 r. Drury 
 
 r. Horwood 
 
 r. McKinlock 
 
 V. f)liver 
 
 V. Richardson 
 Simms v. Smith 
 Simon V. Barker 
 Simond v. Hilbcrt 
 Simons v. Bedell 
 
 r. S. W. Ry. Bank 
 Simpson v. Chapman 
 
 t', Gutteridge 
 
 r. Jones 
 
 V. ^loore 
 
 t>. Munder 
 
 132 
 
 75 
 
 1,41], 414, mi 
 
 8-iO 
 
 733 
 
 184 
 
 627, 639 
 
 920 
 
 851 
 
 334, 343 
 
 , 730, 737, 748 
 
 184 
 
 166, 109 
 
 652 
 
 112, 120, 888 
 
 705 
 
 348, 581, 597 
 
 . Loudon 
 
 757 
 
 427 
 
 58, 279 
 
 589, 593 
 
 641 
 
 66 
 
 611 
 
 918 
 
 145 
 
 918 
 
 744 
 
 218 
 
 77, 137 
 
 143, 144, 146, 
 
 147 
 
 157 
 
 386 a 
 
 142 
 
 142 
 
 890 a 
 
 270, 593, 596 
 
 136 
 
 732, 741 
 
 567 
 
 511 
 
 128 
 
 299 
 
 127 
 
 205, 501, 785 
 
 82 
 
 877 
 
 536 
 
 593 
 
 62, 511 b 
 
 729 
 
 569 
 
 648 
 
 277 
 
 453 
 
 328, 520 
 
 76, 86, 863 
 
 714, 729 
 
 239 
 
 79 
 
 242 
 
 430 
 
 244 
 
 605 
 
 545 
 
 232 
 
 Simpson c. Sikes 687 
 
 V. Simpson 672, 673 
 
 Simpson's Appeal 262 
 
 Sims f. Huntley 602 W> 
 
 V. Lively 598, 794, 795 
 
 V. Marryal 67 
 
 V. Pierce 358 
 
 V. Sims 562 
 
 Simson v. Jones 34 
 
 Simeon's Tru.sts 455 
 
 Sinclair v. Jackson 349, 402, 404, 409. 411, 
 
 412, 415, 5:i8, 529, 779 
 
 Sing Bow V. Sing Bow 126 
 
 Singleton v. Lowndes 919 
 
 V. Scott 254, 408, 602 o, 602 q, 602 x, 
 
 602 y, 602 z, 602 aa 
 
 Sires v. Sires 
 Sise V. Willard 
 Sisson V. Shaw 
 Siter V. McClanachau 
 Siter's Case 
 Sites V. Eldredge 
 Sitwell f. Bernard 
 Skeats v. Skeats 
 Skeats' Settlement, In re 
 Skeggs V. Nelson 
 Skett t'. Whitmore 
 Skillman r. Skillman 
 Skingley, Jn re 
 Skinner v. Dodge 
 
 r. James 
 
 V. McDonall 
 
 V. Orde 
 
 V. Skinner 
 
 V. Tirrell 
 Skinner's Appeal 
 
 Trusts, Jie 
 Skipwith t\ Cunningham 
 
 Skirwing v. Williams 
 Skrine r. Simmons 
 
 f. Walker 
 Skrymsher v. Northcote 
 Slack V. Slack 
 Slade V. Rigg 
 
 V. Van Vechten 
 Slaney r. Witney 
 Slanning r. Style 
 Slater f. Hurlbut 
 
 t'. Oriental Mills 
 
 V. Wheeler 
 Slattery v. Watson 
 Slaymaker r. Bank 
 
 V. St. Johns 
 Slee r. Manhattan Co. 
 Sleech v. Thorningtoa 
 Sleeper v. Iselin 
 Sleight I'. Lawson 
 
 V. Read 
 Slemon r. Schurch 
 Slevin, In re 
 
 V- Brown 
 
 Slide & Spur Gold Mines v. Seymour 237 
 Slinn, In re 97 
 
 Sloan f. Cadogan 98, 101. 102 
 
 r. Coolhaugh 602 «e 
 
 Sloan's Appeal 568 
 
 Slocombe r. Glubb 213 
 
 Slocum V. Ames 545 
 
 254 
 
 920 
 
 615, 618 
 
 640 
 
 633, 640, 641, 643 
 
 248 
 
 480, 550, 551 
 
 143, 146, 147 
 
 289 
 
 238 
 
 86, 137 
 
 147 
 
 121, 477, 552 
 
 243 
 
 126 
 
 84 
 
 603 
 
 863 
 
 658 
 
 641, 642 
 
 119 
 
 591. 592,593, 
 
 602 e, 602 an 
 
 451 
 
 226 
 
 65 
 
 157, 160, 397 
 
 146, 147 
 
 761, 878 
 
 197, 428 
 
 272 
 
 541 
 
 121, 920 
 
 828 
 
 414, 877 
 
 827 a 
 
 641 
 
 75 
 
 602 c, 602 n 
 
 637 
 
 99 
 
 862 
 
 676 
 
 142 
 
 727 
 
 311, 312. 475
 
 CXXVUl 
 
 INDEX TO CASES CITED. 
 
 Slocum r. Barry 
 
 V. Marshall 
 
 V. Slocum 
 Sloman t'. Bank of England 
 
 [References are to sectioos.] 
 
 Smith V. Henry 
 V. Hewett 
 V. Hollenback 
 
 819 
 
 77, 137, 201 
 
 127, 783 
 
 929 
 
 Sloo V. Law 
 Sloper V. Cottrell 
 Small V. Atwood 
 
 276, 413, 427, 822 
 17, 105 
 173, 639, 841, 849, 851, 
 874 
 260 
 590 
 270, 273, 585, 593 
 
 V. Ayleswood 
 
 V. Ludlow 
 
 V. Marwood 
 Smart r. Bradstock 
 
 V. I'rujean 93, 108 
 
 Smedley v. Varley 202 
 
 Smee v. Martin 613 
 
 Smeed, Jie 615 
 
 Smethurst v. Hastings 458 
 
 Smiley v. Dixon 538 
 
 V. Pearce 171 
 
 V. Wright 324 
 
 Smilie V. Biffle 621 
 
 Smilie's Estate 633, 641 
 
 Smith, Ex parte 412 
 
 Smith, In re 83, 90, 263, 453, 460, 466, 517, 
 541, 783, 917 
 
 V. Acton 
 
 V. Anders 
 
 V. Atkins 
 
 V. AttersoU 
 
 V. Atwood 
 
 V. Aykwell 
 
 V. Babcock 
 
 I'. Baker 
 
 V. Bank of Scotland 
 
 r. Barnes 
 
 863 
 
 602 66 
 
 759 
 
 86 
 
 630 
 
 214 
 
 171 
 
 126 
 
 171, 178, 179 
 
 821 
 
 900, 926 
 
 217, 828 
 
 202, 203 
 
 214 
 
 223 
 
 79, 127, 133, 137 
 
 863, 869 
 
 126, 665 
 
 228, 229, 855 
 
 602 66 
 
 358 
 
 837, 863 
 
 591 
 
 V. Bolden 
 
 V. Bowen 
 
 V. Brotherline 
 
 V. Bruning 
 
 V. Burgess 
 
 V. Burnham 
 
 V. Calloway 
 
 V. Caraelford 
 
 V. Clay 
 
 V. Colvin 
 
 V. Collins 
 
 V. Combs 
 
 V. Conkwright 
 
 V. Cooke 131 
 
 V. Cowdery 513, 517 
 
 V. Cuff 212 
 
 V. Cuninghame 394 
 
 V. Davis 260 
 
 V. Death 765 
 
 V. Des Moines Nat. Bank 122 
 
 r. Doe 602 fZ 
 
 V. Drake 195, 205 
 
 V. Dresser 907 
 
 V. Dunwoody 380 
 
 V. Evans 578 
 
 V. Everett 809 
 
 i". Foley 578 
 
 V. French 849 
 
 V. Frost 602 w 
 
 V. Gillam 858 
 
 V. Glover 865 
 
 V. Guvon 795, 796 
 
 V. Hail 466 
 
 V. Harrington 699, 920 
 
 V. Howe 
 V. Howell 
 V. Howlett 
 V. Isaac 
 V. Jackman 
 V. Jameson 
 V. Jeft'rej's 
 V. Kane 
 V. Kay 
 V. Kennard 
 V. Kimbell 
 V. King 
 V. Kinney 
 V. Knowles 
 V. Lansing 
 V. Leavitt 
 V. Lockabill 
 I'. Loewenstein 
 v. Lowell 
 V. Lyne 
 V. McConnell 
 V. McCrary 
 V. McDonald 
 V. Mason 
 V. Matthews 
 V. Maxwell 
 V. Metcalf 
 V. Mitchell 
 r. Moore 
 V. Oliver 
 r. Patton 
 V. Perkins 
 V. Phillips 
 V. Pincombe 
 V. Porter 
 V. Portland 
 V. Provin 
 t'. Ramsey 
 V. Rickards 
 V. Roberts 
 V. Sackett 
 
 677 
 677 
 134 
 
 680 
 
 82, 83, 85, 139 
 
 467 
 
 428 
 
 568 
 
 17 
 
 82 
 
 627 
 
 210 
 
 471 
 
 378 
 
 54, 151 
 
 490, 771, 783 
 
 250, 260, 261 
 
 428, 451 
 
 593 
 
 299 
 
 448 
 
 591 
 
 104 
 
 414 
 
 500 
 
 52 
 
 142 
 
 79, 83, 633 
 
 361 
 
 312 
 
 171 
 
 386 a, 555, 815 a 
 
 275, 724 
 
 77, 138 
 
 770 
 
 347 
 
 185 
 
 559 
 
 873 
 
 199, 602 p 
 
 127 
 
 171 
 
 347 
 
 126, 133, 137 
 
 V. Smith 49. 117, 118, 134. 213, 270. 284, 
 305, 438, 451, 453. 459. 465, 591, 603, 
 764, 818, 890, 903 a, 924 
 
 t'. Snow 
 V. Speer 
 V. Starr 
 V. Stowell 
 V. Sutton 
 V. Swan 
 V. Thompson 
 V. Tome 
 V. Towers 
 V. Tnwnshend 
 V. Walter 
 V. Wheeler 
 V. Wildman 
 V. Wilkinson 
 v. Willard 
 V. Wood 
 V. Wright 
 V. WyckoS 
 V. Young 
 V. Zaner 
 Smith's Estate 
 
 Smith's Settlement, fn re 
 
 882 
 
 82 
 
 310 a, 652. 653 
 
 739 
 
 260 
 
 408 
 
 318 
 
 82 
 
 827 a 
 
 195 
 
 217 
 
 270, 273, 806 
 
 117, 118, 411, 511 
 
 82 
 
 145 
 
 855 
 
 206 
 
 573 
 
 67 
 
 55 
 
 82, 163, 359 
 
 282
 
 INDEX TO CASES CITED. 
 [References are to sectioiu.] 
 
 CXXIX 
 
 Smitheal v. Gray 12f. ' 
 
 Smithsonian InbVn v. Meech 12G, 14.0 i 
 
 Suivth V. Burns 45'J ' 
 
 'f. Carlvsle 243 
 
 r. Phillips Academy 742 
 
 Smythu V. Sniythe 540 
 
 Snape v. Turton 511 c j 
 
 Snashall f. Met. K. Co. 678 
 
 Sueer v. Stutz 2t>4 [ 
 
 Sneesby v. Thome 770, 809 , 
 
 Snelgrove r. Snelgrove 218 
 
 Snell V. Dwight 21 i 
 
 V. Elam 127 
 
 Snelling r. McCreary 450 
 
 V. Utterback. 137 j 
 
 Snider r. Johnson 137 
 
 V. Udell \V. Co. 212 , 
 
 Snow V. Booth 8G3 
 
 t'. Callum 918 
 
 V. Culler 379 
 
 V. Ilutchins 65G 
 
 f. Teed 256 ' 
 
 Snowden f. Dunlavey 35 
 
 Suowdon r. Dales 386, 555 
 
 Snowhill f. Snowhill 610, 611, 639, 641 
 
 Snyder r. Snyder 648, 652, 676 
 
 V. SpoiKible 222 
 
 Snyder's Appeal 652, 670, 918 m 
 
 Soames i'. Martin 118 
 
 Soar t'. Ashwell 246, 863 
 
 I'. Foster 144 
 
 Socher's Appeal 171 
 
 Society v. Pel ham 468 
 
 Soc, &c. V. Hartland 299 
 
 Soc. for Propagating the Gospel r. 
 
 Att.-Gen. 701, 731, 736, 741 
 
 Soc. of Orphan Boys v. New Orleans 748 
 
 Sockett V. Wray 52, 630, 633, 655 
 
 Soggins V. Heard 172, 863 
 
 Sohier v. Eldredge 476 a, 551, 556 
 
 f. Mass. Gen. Hosp. 610, 724 
 
 r. St. Peter's Church 748 
 
 V. Trinity Church 121, 737 
 
 V. Williams 784 
 
 Solinsky v. Lincoln Sav'gs Bk. 918 
 
 Sollee V. Croft 
 
 836, 
 
 842, 
 
 864, 914, 
 918 
 
 Soller V. Chandler 
 
 
 
 428 
 
 Solliday v. Bissett 
 
 
 
 918 
 
 V. Gruver 
 
 
 
 575 
 
 Solliday's Estate 
 
 
 
 448 
 
 Somers v. Craig 
 
 
 
 647 
 
 V. Overhulser 
 
 
 
 126 
 
 Somerset, In re 
 
 
 646 
 
 848, 801 
 
 Somes, In re 
 
 
 
 287 
 
 V. Skinner 
 
 
 
 246 a 
 
 t'. Stokes 
 
 
 
 200 
 
 Sonley r. Clockmakers' 
 
 Co. 
 
 38, 45, 240 
 
 Soohan v. Philadelphia 
 
 
 
 748 
 
 Soper r. Brown 
 
 
 
 371 
 
 Soresby r. Hollins 
 
 
 
 709 
 
 Sothron, In re 
 
 
 
 93 
 
 Sotone V. Scott 
 
 
 
 843 
 
 Soulard's Estate 
 
 
 
 97, 163 
 
 South, Fx parte 
 
 
 
 68 
 
 V. Allevne 
 
 
 
 310 
 
 V. Ilav 
 
 
 
 426 
 
 South Scituate S. Rank 
 
 r. Ross 
 
 766 
 
 South Sea Co. v. Wymondsell 
 
 861, 862 
 
 South Yorkshire, &c. Ry. v. Great 
 
 Northern My. 757 
 
 Southampton r. Hertford 160, 393, 395 
 .Southard v. I'lummer 676, 678 
 
 Southcouil) f. E.\uter 869 
 
 Southern Indiana Express Co. r. U. S. 
 
 Express Co. 21 
 
 South Eastern Ry. Co. r. Jortin 7.01 
 
 Southouse I'. Bate 152, 157 
 
 Southwell V. Ward 277, 287 
 
 Souverbve v. Arden 103, 104, 161 
 
 Sowarsby i-. Lacy 582, 610, 787, 703 
 
 .Sowerby r. Clayton 461 
 
 Sowers V. Cvrenius 701 
 
 Spalding r. Ikliller 5.53 
 
 V. Shalmer 416, 597, 789, 796 
 
 Spangler's Appeal 918 
 
 Sparhawk v. liuell 418, 422, 426, 612, 618, 
 
 624 
 
 V. Cloon 386, 555 
 
 V. Sparhawk 275 
 
 Spark's Estate 262 
 
 Sparks r. Hess 232 
 
 V. Kearney 602 /> 
 
 Sparling r. Parker 439, 551 
 
 Spaulding v. Kendrick 790 
 
 Speakman v. Speakmao 380 
 
 I'. Tatem 401, 875 
 
 Spear r. Grant 242 
 
 f. Spear 453, 612 
 
 V. Tinkham 463, 468, 541, 547 
 
 r. Ward 680 
 
 Speed V. St. Louis, &c. R. Co. 299 
 
 Speer v. Burns 126 
 
 r. Haddock 602 /> 
 
 Speidel v. Henrici 863, 865 
 
 Speight V. Gaunt 404, 409, 457, 813 
 
 Speigleniyer v. Crawfort 173 
 
 Spence v. Duren 171 
 
 V. Spence 305, 358 
 
 V. Whitaker 918 
 
 V. Widney 700, 920 
 
 Spencer v. Anon 602 s, 602 x 
 
 V. Duncan 863 
 
 V. Ford 602 e 
 
 I'. Hawkins 598 
 
 V. Smith 420 
 
 V. Spencer 393, 901, 917 
 
 V. Terrel 137 
 
 V. Weber 466, 790 
 
 Spencer, Re, Thomas v. Spencer 671 
 
 Sperling v. Rochfort 630 
 
 Spessard v. Itohner 315 
 
 Spicer v. Ayres 164 
 
 V. Dawson 652 
 
 Spickernell r. Hotham 859, 863 
 
 Spies V. Chicago &c. R. Co. 875 
 
 Spindle v. Shreve 72, 815 n. 827 a . 
 
 Spindler v. Atkinson 205, 428 
 
 Spink V. Lewis 160 
 
 Spinning I". Blackburn 681 
 
 Spirrett v. Willows 164, 635, 649 
 
 Spitzer v. Spitzer 248 
 
 Spokane County r. First Nat. Bank 823 
 
 Spooner v. Whiston 212 
 
 Spotswood r. Pendleton 610 
 
 Spottiswoodie i'. Stockdale 585, 593 
 
 Sprague v. Bond 865 
 
 r. Edwards 437 a 
 
 VOL. I. — i
 
 cxxx 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Sprague v. Smith 
 
 7G2 
 
 V. Sprague 
 
 358 
 
 V. Thurber 
 
 1G3 
 
 V. Tyson 
 
 660, 873 
 
 V. Woods 
 
 162, 299 
 
 Sprange v. Barnard 
 
 113, 116 
 
 Sprigg V. Bank of Mount Pleasant 2-2G 
 
 V. Sprigg 102 
 
 Spring V. Biles 256 
 
 V. Pride 195, 202, 670 
 
 V. Kandall 827 a 
 
 V. South Carolina Ins. Co. 585 
 
 V. Woodworth 603 
 
 Spring's Appeal 460 
 
 Springe r. Berry 683 
 
 Springer v. Arundel 310 a, 652 
 
 V. Kroeschell 137 
 
 V. Springer 126, 805 
 
 V. Walters 232 
 
 Springett v. Dashwood 821, 900 
 
 Springlield H. Ass'n v. Roll 212 
 
 Sproule V. Bouch 545 
 
 Spurgeon v. Collier 828 
 
 Spurr V. Scoville 71, 72 
 
 Spurrier v. Hancock 122 
 
 Spurway v. Glynn 571 
 
 Squire v. Dean 665 
 
 V. Harder 139, 162 
 
 V. Whitton 178, 179 
 
 Squire's Appeal 76, 135, 205, 200, 226 
 
 Squires v. Ashford 634 
 
 St. Albvn V. Harding 188 
 
 St. Aubin v. St. Aubin 556 
 
 St. George v. Wake 213 
 
 St. .lames Church v. Church of the 
 
 Eeiieemer 207 
 
 St. John V. St. John 214, 672, 673 
 
 V. Turner 869 
 
 St. Johnsbury v. Morrill 828 
 
 St. John's Church, In re 725 
 
 St. John's College v. State 742 
 
 St. Louis v. Priest 779 
 
 St. Louis Union Society v. Mitchell 828 
 St. Mary's Church v. Stockton 797 
 
 St. Piitrlck's Church v. Dalv 127 
 
 St. Paul V. Dudley ' 347 
 
 St. Paul Trust Co', v. Kittson 454 
 
 St. Paul's Church v. Att.-Gen. 700, 736, 738 
 St. Stephens, Ee 727 
 
 Staats V. Bergen 195 
 
 V. Bingen S47 
 
 Stacey v. Elph 261, 267, 268, 269, 270, 271, 
 
 273 
 
 Stackhouse v. Barnston 228, 229, 851, 872 
 
 Stackpole v. Arnold 226 
 
 V. Beaumont 512, 513, 514, 515, 635, 636 
 
 V. Daveron 867, 872 
 
 V. Howell 272 
 
 V. Stackpole 471, 472, 900, 912 
 
 Stafford V. Buckley 765 
 
 V. Stafford 851, 870 
 
 V. Van Renselaer 232 
 
 Stafford Charities, In re 733 
 
 Stagg V. Beekman 555 
 
 Stahlschmidt v. Lett 481 
 
 Staines v. Burton 736 
 
 V. Morris 786 
 
 Stainton v. Carson Co. 185 
 
 Stair V. Macgill 550 
 
 Stall V. Cincinnati 137 
 
 Stallings v. Foreman 195, 205 
 
 Stainbaugh's Estate 462 
 
 Stamford, In re 277, 290 
 
 V. Hobart 359 
 
 Stamp V. Cooke 257 
 
 Stamper v. Barker 34 
 
 V. Millar 414 
 
 Standard Oil Co. v. Hawkins 828 
 
 Standing v. Bowring 99 
 
 Standish v. Babcock 832 
 
 Stanes v. Parker 902 
 
 Staiiger, Re 248 
 
 Stanford v. Mann 166, 206 
 
 r. Marshall 657, 662, 667 
 
 V. Roberts 477 
 
 Stanhope v. Toppe 187 
 
 Staniar v. Evans .902 
 
 Staniforth v. Staniforth 578 
 
 Stanlej' v. Branuon 143 
 
 V. Colt 121, 737 
 
 V. Jackman 369 
 
 V. Leigh 364, 377 
 
 V. Lennard 305, 359 
 
 V. Stanley 359, 578 
 
 Stanley's Appeal 459, 851 
 
 Stansell v. Roberts 238 
 
 Stanton V. Hall 388, 626, 647, 648, 649 
 
 V. King 526 
 
 V. Kirsch 677 
 
 Stan wood v. Stanwood 639, 640 
 
 Staples V. Hawes 386 
 
 Stapleton r. Langstaffe 610 
 
 V. Stapleton 96, 185, 373 
 
 Starbuck v. Farmers' Loan Ass'n 103 
 
 Stark V. Canady 126 
 
 V. Olsen 223 
 
 Stark's Estate 457 
 
 Starke v. Starke 643, 863 
 
 Starkey v. Brooks 151, 154 
 
 V. Fox 869 
 
 Starkie, Ex parte 617 
 
 Starnes v. Hill 358 
 
 Starr «?. Ellis 347 
 
 V. Starr 75, 76 
 
 V. Wright 33 
 
 State V. Adams 742 
 
 V. Ausmus 700 
 
 V. Bevers 828 
 
 V. Boston &c. Ry. Co. 756 
 
 V. Brown 263 
 
 V. Br3-ce 30 
 
 V. Cincinnati 766, 795 
 
 V. Commercial Bank 757 
 
 V. Commissioners 223 
 
 V. Digges 843 
 
 V. Fav 847 
 
 V. Gerard 699, 731, 738, 748 
 
 V. Griffith 276 a, 732 
 
 V. Guilford 404, 415, 417, 418 
 
 V. Hamilton Countv Com'rs 200, 607 
 
 V. Hearst ' 262 
 
 V. Hollingworth 550 
 
 V. Holloway 171 
 
 V. Howarth 471 
 
 V. Hunt 277 
 
 V. Kock 348 
 
 V. Krebs 628 
 
 V. Lord 413
 
 INDEX TO CASES CITED. 
 [ReferenceB aro to aectiona.] 
 
 CXXXl 
 
 State V. Macalester 
 
 774 
 
 Stephenson v. Ileatbcote 
 
 
 566 
 
 r. Mayor of Mobile 
 
 44 
 
 V. January 
 
 
 782 
 
 V. McGowen 
 
 700, 748 
 
 V. Stephenson 
 
 
 918 
 
 V. Mexican Gulf Ky. 
 
 757, 759 
 
 r. Taylor 
 
 
 171 
 
 V. Midland State Bank 
 
 122 
 
 Stephenso'n's Estate 
 
 
 918 
 
 V. Nethcrton 476 
 
 a, 815 a 
 
 Sterling v. Sterling 
 
 
 672 
 
 V. Nicols 
 
 262 
 
 Sterrett's Appeal 
 
 416 
 
 418, 421 
 
 V. Northern Railway 
 
 759 
 
 Stevens i-. Austen 
 
 340, 
 
 495, 770 
 
 V. I'aiip 
 
 184 
 
 I'. IJagwell 
 
 
 29, 09 
 
 V. I'latt 
 
 91G 
 
 V. Ikals 
 
 
 640 
 
 V. I'rewett 
 
 694, 748 
 
 r. IJell 
 
 
 585, 593 
 
 V. Keal Estate Bank 
 
 588 
 
 V. buffalo & New York Ry. 
 
 709 
 
 V. Kei;;art 
 
 6;52 
 
 V. Detliick 
 
 
 578 
 
 V. Hobcrtson 
 
 639 
 
 V. Earles 
 
 
 602 
 
 V. Koeper 
 
 452 
 
 V. Ely 
 
 
 160 
 
 V. Rush 
 
 47 
 
 V. Gavlord 
 
 
 266 
 
 V. Simpson 
 
 456 
 
 V. Greg^' 5G2, 568, 
 
 569, 570 
 
 V. Somerville, &c. Railway 
 
 759 
 
 V. Melcher 477, 
 
 552, 915 a, 917 
 
 V. Standard Oil Co. 
 
 21, 801 
 
 V. Olive 
 
 
 672, 073 
 
 V. Stebbins 
 
 44 
 
 V. Savage 
 
 
 636 
 
 V. To! an 
 
 892 
 
 V. South Devon R. Co. 
 
 
 478 
 
 State Bank v. Campbell 
 
 239 
 
 r. Stevens 
 
 
 144, 438 
 
 I'. Marsh 
 
 918 
 
 V. Trevor-Garrick 
 
 
 071 
 
 State Nat. Bank r. Thomas Manuf. Co. 44 
 State of Maryland v. Bank of 
 
 Maryland 31, 588 
 
 States V. Rives 757 
 
 Steacy v. Rice 653 
 
 Stead V. Clay 608 
 
 V. CuUey 637 
 
 V. Nelson 654, 658 
 
 Stearnes v. Hubbard 84, 85 
 
 Stearns v. Brown 463 
 
 1). Eraleigh 274, 277 
 
 V. Mathews 676 
 
 V. I'almer 17, 302, 312, 320, 328 
 
 Stebbins v. Eddy 174 
 
 V. Morris 120 
 
 Steel V. Cobham 818 
 
 V. Steel 647, 048 
 
 Steel Edge S. & R. Co. v. Manchester 
 
 S. Bank 593 
 
 Steele i-. Kinkle 107, 228 
 
 V. Levisay 794 
 
 V. Steele 559, 907 
 
 V. Wallar 90 
 
 V. Worthington 165 
 
 Steere v. Steere 20, 76, 79, 82, 83, 
 
 120, 133, 139 
 
 Stehman'a Appeal 918 
 
 Steib r. Whitehead 815 a, 827 n 
 
 Steinberger t'. Potter 304 
 
 Steiiihardt v. Cunningham 79 
 
 Steiiimiui v. Ewing 080 
 
 Steinmetz v. Ilaltkin 045 
 
 Stell's Appeal 415, 421 
 
 Stent v.Baillis 122 
 
 Stephen i'. Swann 55 
 
 Stephens, In re 308, 558 
 
 V. Hateman 183, 187 
 
 V. Green 438 
 
 V. Hotham 780 
 
 V. James 388, 555 
 
 V. Lawrv 612, 615 
 
 V. StepHens 379 
 
 V. Trueman 111, 367 
 
 V. Veiiabhs 438 
 
 V. Yaiulle 918 
 
 Stephenson i'. Hayward 585 
 
 V. Wilson 126 
 
 Stevenson, In matter of 602 n 
 
 V. Agry 585 
 
 V. Brown 627 
 
 V. Crapnell 79, 102 
 
 V. Kyle 206, 828 
 
 V. Maxwell 918 
 
 V. Phillips 918 
 
 Stephenson's Appeal 277 
 
 Estate 918 
 
 Stewart's Estate 547 
 
 Stewart, In re 275 
 
 V. Ball 677 
 
 V. Brown 126, 132 
 
 V. Dailey 105 
 
 V. Fellows 195 
 
 V. Hall 593 
 
 V. Hatton 234 
 
 V. Hubbard 192 
 
 r. liflehart 165 
 
 V. Ives 232, 339 
 
 V. Jenkins 086 
 
 V. Kirkland 68, 438 
 
 i\ McMinn 910 
 
 V. Noble 600 
 
 V. Parnell 460 
 
 V. Pettus 343, 414 
 
 t'. Sanderson 407 
 
 V. Stewart 185, 608 
 
 Stewart's Appeal 043 
 
 Stewart's Estate 863 
 
 Stickland v. Aldridge 84. 90. 93, 216 
 
 Sticknev v. Sewell 297, 453, 457, 461 
 
 Sticknov's Will,/nre 382 
 
 Stiffle f". Everitt 626 
 
 Stikeman r. Dawson 53 
 
 Stile r. Griffin 232 
 
 r. Thompson 496 
 
 Stileman v. Ashdown 54, 145, 146, 149 
 
 Still V. Ruly 49 
 
 V. Spear 386 a 
 
 Stillwoll f. Leavy 863 
 
 r. Wilkinson 187 
 
 Stimpson r. Fries 602 h, 602 na 
 
 Stine V. Wilkson 602 p, 602 r, 782 
 
 Stiner r. Stiuer 172
 
 CXXXll 
 
 INDEX TO CASES CITED. 
 
 [References are to sections.] 
 
 Stivers «. Gardner 
 Stock V. Moyse 
 
 17. Viiiing 
 Stockbricige v. Stockbridge 
 Stockcn V. Dawsoii 
 
 V. Stocken 
 Stocker v. Ilutter 
 
 V. Whitlock 
 Stockett V. Ryan 
 Stockley v. Stockley 
 Stocks v. Dobsoii 
 Stockton V. Anderson 
 
 V. Ford 
 Stoddart v. Allen 
 Stoddcr V. Hoffmann 
 Stogden v. Lee 
 Stoke's Appeal 
 Stoker V. Yelby 
 Stokes Trusts, In re 
 Stokes V. Cheek 
 
 V. Payne 
 
 V. Terrell 
 Stone V. Bishop 
 
 V. Clay 
 
 V. Denny 
 
 V. Framingham 
 
 V. Godfrey 185, 
 
 V. Grantham 
 
 V. Gritiin 
 
 V. Hackett 
 
 V. Hammell 
 
 V. Hinton 
 
 V. Keyes 
 
 V. Lidderdale 
 
 V. Perkins 
 
 V. Stone 
 
 V. Theed 
 
 V. Welling 
 
 V. Westcott 
 Stone, Petitioner 
 Stoner v. Commonwealth 
 Stong's Estate 
 Stonor V. Curwen 
 Stoolfoos V. Jenkins 
 Storrs V. Barker 
 
 V. Ben how 
 Storry v. Walsh 802, 
 
 Story V. Gape 
 
 V, Palmer 
 
 I'. Winsor 
 Story's University Gift 
 Stouffer I'. Clagett 
 
 V. Holeman 
 Stoup V. Stoup 
 Stout V. Betts 
 
 V. Highbee 
 
 V. Levan 
 
 V. Philippi Manuf. Co. 
 Stover V. Flack 
 Stow V. Kimball 
 Stowe V. Bowen 
 Strafford v. Powell 
 Strain v. Walton 
 Strange v. Fooks 
 
 V. Smith 
 Stratheden and Campbell, In : 
 Strathmore v. Bo we 
 Stratton v. Dialogue 
 
 V. Grimes 
 
 114 
 
 Stratton v. Physio-Medical College 
 
 729, 894 
 
 122 
 
 Strauss v. Goldsmid 
 
 
 
 699, 702 
 
 903 a 
 
 Strauss's Appeal 
 
 
 
 232 
 
 309, 766 
 
 Straut's Estate 
 
 
 
 861 
 
 904, 906 
 
 Stretch v. Watkins 
 
 
 
 615, 616 
 
 612 
 
 17. Gowdry 
 
 
 
 918 
 
 891 
 
 Stretton v. Ashmall 
 
 
 
 457 
 
 660, 685 
 
 Strickland v. Weldon 
 
 
 
 732 
 
 104 
 
 Striker v. Mott 
 
 
 
 305 
 
 185 
 
 Strimpfler v. Roberts 
 
 126, 
 
 137, 
 
 141, 805 
 
 438 
 
 Stringer v. Harper 
 
 
 
 918 
 
 875 
 
 Stringham v. Brown 
 
 
 
 602 ee 
 
 202 
 
 Strode v. Russell 
 
 
 
 336 
 
 593, 597 
 
 Strong V. Brewer 
 
 
 
 546 
 
 92 
 
 V. Carrier 
 
 
 
 591 
 
 671 
 
 V. Glasgow 
 
 
 
 76 
 
 320 
 
 V. Gordon 
 
 
 
 142 
 
 330 
 
 V. Ingraham 
 
 
 
 571 
 
 286 
 
 17. Messinger 
 
 
 
 126 
 
 119 
 
 V. Perkins 
 
 
 
 93 
 
 208 
 
 V. Skinner 
 
 
 
 590, 591 
 
 467 
 
 17. Smith 
 
 
 
 642 
 
 99 
 
 t7. Weir 
 
 
 
 104 
 
 457 
 
 V. Willis 
 
 
 
 268 
 
 172, 173 
 
 Strong's Appeal 
 
 
 
 699 
 
 735, 743 
 
 Strother v. Law 
 
 
 
 602 n 
 
 433, 863, 867 
 
 Stroud V. Burnett 
 
 
 
 562, 566 
 
 590 
 
 V. Grozer 
 
 
 
 671 
 
 240, 748 
 
 17. Gwyer 
 
 
 
 430, 551 
 
 98, 204, 338 
 
 17. Norman 
 
 
 
 511a 
 
 863 
 
 Stroughill V. Anstey 
 
 597, 
 
 768, 
 
 783, 785, 
 
 786 a 
 
 795, 797 
 
 ,800 
 
 801 
 
 810, 812 
 
 602 66 
 
 17. Gulliver 
 
 
 
 208 
 
 69 
 
 Stroup 17. Stroup 
 
 
 
 324 
 
 43 
 
 Stuart, In re 
 
 
 
 460, 848 
 
 109, 110, 147 
 
 17. Bruere 
 
 
 
 550 
 
 533 
 
 V. Bute 
 
 
 
 603 
 
 221 
 
 17. Carson 
 
 
 
 562 
 
 555, 827 a 
 
 17. Easton 
 
 
 
 694, 712 
 
 920 
 
 17. Kirkwall 
 
 
 657 
 
 658, 662 
 
 642 
 
 V. Kissam 195 
 
 ,428 
 
 647 
 
 648, 654 
 
 465 
 
 V. Stuart 
 
 
 
 539 
 
 361, 369, 371 
 
 Stubbs V. Gargan 
 
 
 
 630 
 
 170, 849 
 
 V. Roth 
 
 
 
 196 
 
 184 
 
 17. Sargon 112, 
 
 159, 
 
 253 
 
 712. 715 
 
 385 
 
 Stucky 17. Stucky 
 
 
 
 1.32 
 
 803, 805, 811 
 
 Studholme v. Hodgson 
 
 
 
 522. 903 a 
 
 260, 869 
 
 Stulz Trusts, In re 
 
 
 
 388, 555 
 
 277, 520 
 
 Stump 17. Gaby 
 
 199, 
 
 202 
 
 227, 852 
 
 219, 221 
 
 Sturgeon 17. Stevens 
 
 
 
 104 
 
 735 
 
 Sturges V. Dimsdale 
 
 
 
 573 
 
 455 
 
 V. Knapp 
 
 
 
 280, 749 
 
 232 
 
 Sturgis 17. Champneys 
 
 626, 
 
 629, 
 
 632, 633, 
 
 299 
 
 
 
 
 634 
 
 277 
 
 V. Corp 
 
 
 
 655, 670 
 
 594 
 
 17. Morse 
 
 
 863 
 
 865, 872 
 
 640 
 
 Sturt 17. Mellish 
 
 
 
 17 
 
 223 
 
 Sturtevant i7. Jaques 
 
 157 
 
 158 
 
 159, 814 
 
 134 142 
 
 Stuyvesant, In re 
 
 
 
 283 
 
 127 
 
 V. Hall 
 
 
 
 241 
 
 416 
 
 Styan, In re 
 
 
 
 438 
 
 360 
 
 StVer 17. Freas 
 
 
 
 783 
 
 237 
 
 Styles 17. Gny 262. 419, 
 
 424, 
 
 440, 
 
 453, 870 
 
 851 
 
 Suarez v. De Mnntigny 
 
 
 
 790 
 
 517, 519 
 
 Succession of Wilder 
 
 
 
 34 
 
 re 705 
 
 Sudeley, In re 
 
 
 248, 
 
 498, 506 
 
 213 
 
 Sugden v. Crossland 
 
 
 
 274, 427 
 
 126, 127 
 
 Sugg V. Tillman 
 
 
 
 591 
 
 511, 514 
 
 Suir Island Charity School, In re 
 
 737
 
 INDEX TO CASES CITED. 
 [References &ro to Bections.] 
 
 Sullivan v. Chambers 299 
 
 t'. Latimer 277 
 
 V. rortlaiul U. Co. 80-2 
 
 V. Sullivan 133 
 
 Summers v. Moore I'J.J 
 
 Sumner i'. Marcy 72 
 
 Sunirall v. Ciialfin 774 
 
 Sunderland v. Sunderland 141, 147 
 
 Supple V. Lawson 250 
 
 Sustjuehanna Bridge Co. v. General 
 
 Ins. Co. 754 
 
 Susquehanna Canal Co. v. Bonham 757 
 
 Sussex V. Worth 528 
 
 SutcliiTe v. Cole 152 
 
 Sutherland v. Brush 421 
 
 V. Cook 449, 451, 551 
 
 Sutphen r. Fowler 780 
 
 Sutton V. Aiken 520 
 
 V. Oadock 541 
 
 V. llanford 590 
 
 V. Jewke 515 
 
 V. Jones 199, 432, 5.30 
 
 V. My rick 917 
 
 Sutton V. Sharp 464, 408 
 
 Sutton Colelield's Case S.'iO 
 
 Suydam v. Martin 217, 591 
 
 Swain, In re 8G3 
 
 Swaine v. Ferine 554 
 
 Swale I'. Swale 413, 818 
 
 Swallow V. Binns 580 
 
 Swan, In re 630 
 
 V. Frick 97 
 
 V. Ligan 220, 541 
 
 Swarez v. Pumpelly 287 
 
 Swarr's Appeal 733 
 
 Swartswalter's Account 918 
 
 Swartwout v. Burr 50 
 
 Swartz V. Swartz 200 
 
 Swasey v. Amer. Bible Soc. 699, 700, 700, 
 
 748 
 
 V. Emerson 223 
 
 V. Little V9G 
 
 Swearingin v. Slicer 592 
 
 Swedesborough Church v. Shivers 733 
 
 Sweeney v. Sampson 694, 700, 748 
 
 V. Smith G80 
 
 V. Sparling 127 
 
 V. Warren 253 
 
 Sweet V. Jacocks 206 
 
 V. Southcote 222 
 
 Sweetapple v. Bindon 323, 324, 300 
 
 Sweeting v. Sweeting 327 
 
 Sweezy r. Thaj'er 611 
 
 Sweigart v. Berks 556, 783 
 
 Swift, Ex parte 613, 618 
 
 V. 920 
 
 V. Davis 147 
 
 V. Gregson 256 
 
 V. Smith 803 
 
 Swinburne i'. Swinburne 137, 142 
 
 Swindall r. Swindall 471 
 
 Swinfen v. Swinfen 348, 443, 440 
 
 Swink V. Snodgrass 225 
 
 Swinnock v. Crisp 618 
 
 Swinton v. Egleston 160 
 
 Swissholm's Appeal 204, 209 
 
 Switzer v. Skiles 84, 401 
 
 Swover's Appeal 453, 590, 786 a 
 
 Syctie V. Kline 126 
 
 Syester v. Brewer 
 Sykes v. Hastings 
 
 t'. Sheard 
 Sykes's Trust 
 Sylvester v. Jarman 
 
 V. Wilson 
 Symes r'. Hughes 
 
 V. Symes 
 Symm's (Jase 
 S Vinson V. Turner 
 Synge v. Hales 
 
 V. Synge 
 Synnot v. Simpson 
 Sypher v. McHenry 
 Syracuse S. Bank v. Porter 
 
 T. 
 
 CXXXlll 
 
 864 
 
 432 
 
 493, 778, 784 
 
 657, 058 
 
 337 
 
 305 
 
 214 
 
 378 
 
 724 
 
 303, 305, 309 
 
 357, 300, 377 
 
 122 
 
 593 
 
 197 
 
 82, 248 
 
 Tabb V. Archer 
 
 34 
 
 r. I5aird 
 
 299, 303 
 
 Tahele v. Tabele 
 
 602/ 
 
 Tuber v. Wijletts 
 
 248 
 
 Tabor v. Brooks 
 
 511 
 
 V. Grover 
 
 13 
 
 Taft V. Dimond 
 
 79 
 
 V. Providence, &c. R. Co. 
 
 545 
 
 V. Stow 
 
 79 
 
 Taggart v. Baldwin 
 
 640 
 
 V. Taggart 
 
 364 
 
 Taintor v. Clark 259, 499, 500, 700, 748, 
 
 765, 921 
 
 Tait V. Jenkins 819 
 
 I". Lathbury 766 
 
 V. Northwick 600 
 
 Taite v. Swinslead 498 
 
 Talbot r. Bowen 84 
 
 r. Calvert 652 
 
 V. Cook 438 
 
 V. Dennis 640 
 
 V. Field ^11 c 
 
 V. Mansfield 822, 823, 826 
 
 V. Marshfield 474, 508 
 
 I'. Radnor 272, 476 a, 922, 928 
 
 V. Scott 818 
 
 V. Staniforth 188 
 
 Talbott V. Barber 79, 863 
 
 Taliaferro v. Minor 918 
 
 V. Taliaferro 126, 133, 135 
 
 Tallev V. Starke 610 
 
 Tally y. Thompson 676 
 
 Tanaux i'. Ball 918 
 
 Taner r. Ivie 800 
 
 Taney v. I'ahnlev 358 
 
 Tankard i-. Tankard 171, 215 
 
 Tann !'. Tann 903 a 
 
 Tanner r. Dancey 892 
 
 V. Elworthy 129, 196, 538 
 
 V. Hicks 232 
 
 V. Skinner 98 
 
 Tanney r. Tanney 109 
 
 Tanqueray-Willaume, In re 570 
 
 Taplev I'.'Biittertield 814 
 
 Tajipan v. Deblois 694, 705, 724, 730, 748 
 
 Tappenden r. Burgess 587 
 
 Tarback v. Marbury 590 
 
 Tarbdx v. Grant 103 
 
 Tardiff i". Hobinson 635 
 
 Targus v. Puget 364
 
 CXXXIV 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Tarleton v. Hornby 
 
 V. Vietes 
 Tarlton v. Gilsey 
 Tarpley v. l\)aze 
 Tarr r. Williams 
 Tarrant v. Backus 
 Tarrant's Trust, Jn re 
 Tarsley's Trust, In re 
 Tarver v. Tarver 
 Tasburgh's Case 
 Tasker v. Small 
 
 V. Tasker 
 Tassey's Trust 
 Taster v. Marriott 
 Tatam v. Williams 
 Tate I'. Connor 
 
 V. Leithhead 
 Tatge V. Tatge 
 Tatham v. Drummond 
 
 V. Vernon 
 Tatlock V. Smitb 
 Tator V. Tator 
 Taussig V. Keel 
 Tavenner v. Barrett 
 
 V. Robinson 
 Taylor, Ex parte 
 
 In re 
 
 V. Allen 
 
 V. Alloway 
 
 V. Alston 
 
 V. Ashton 
 
 V. Atkins 
 
 V. Austen 
 
 t'. Bacon 
 
 848, 875 
 
 84 
 
 411 
 
 126 
 
 655, 660 
 
 277, 382 
 
 511 c 
 
 648 
 
 182 
 
 630 
 
 122, 874 
 
 32 
 
 652 
 
 196 
 
 869 
 
 863 
 
 87, 105 
 
 226 
 
 668, 709 
 
 357, 3r,9 
 
 585 
 
 380 
 
 511 6, 528 
 
 877 
 
 921 
 
 587, 848 
 
 727, 895, 904 
 
 816, 818 
 
 232 
 
 144, 147 
 
 171 
 
 602 /> 
 
 633 
 
 117 
 
 V. Benham 64, 131, 336, 415, 441, 602 
 m, 765, 855 
 V. Biddal 379 
 
 V. Blakelock 828 
 
 y. Boardman 215 
 
 V. Bond 547 
 
 V. Buttrick 104 
 
 r. Clark 550, 551 
 
 V. Crompton 871 
 
 V. Davis 437a 
 
 V. Dickinson 413 
 
 V. Galloway 769 
 
 V. George 112 
 
 V. Glanville 280, 476a, 667, 894, 901, 
 922. 928 
 V. Gooche 865 
 
 V. Harwell 815 a 
 
 V. Hawkins 811 
 
 V. Haygarth 157, 327, 434, 437 
 
 V. Henrv 99 
 
 V. Hibbert 550, 551 
 
 V. Holmes 862 
 
 V. Hopkins 402 
 
 V. Huber 920 
 
 V. Hunter 232, 237, 239 
 
 V. James ]09, 143 
 
 V. Keep 83^ 732 
 
 V. Kelly 127 
 
 V. Kemp 466 
 
 V. King 17, 328, 602 i, 602 an 
 
 V. Lucas 160 
 
 V. Luther 226 
 
 V. McKinney 232 
 
 V. Mahoney 276 
 
 V. Meads 656 
 
 Taylor v. Miles 
 V. Millington 
 V. Mitchell 
 V. Morris 
 V. Phillips 
 V. Plumer 
 V. Pownal 
 V. Pugh 
 V. Kadd 
 V. Roberts 
 V. Root 
 V. Salmon 
 V. Sheltou 
 V. Shum 
 V. Stibbert 
 V. Tabrum 
 
 124, 133, 147 
 
 267 
 
 715 
 
 499 
 
 605 
 
 345, 835, 837, 842 
 
 82, 95, 122 
 
 213 
 
 226 
 
 415 
 
 892 
 
 206, 885 
 
 678 
 
 536 
 
 217, 828 
 
 781, 848, 876, 901 
 
 V. Taylor 54, 109, 139, 146, 147, 162, 
 194, 201, 654, 667 
 
 V. Weld 226 
 
 Taylor's Case 697 
 
 Tayman v. Mitchell 171 
 
 Teague v. Dendy 618 
 
 Teakle v. Bailey 206 
 
 Teall r. Schroder 863 
 
 V. Slaven 861 
 
 Teas's Appeal 573 
 
 Tebbetts v. Tilton 126, 133 
 
 Tebbitt v. Tebbitt 364 
 Tebbs V. Carpenter 438, 440, 444, 464, 465, 
 468, 471, 527, 900, 902 
 
 Tecumseh Nat. Bank v. Russell 166 
 
 Tee V. Ferris 511 a 
 
 Teegarden v. Lewis 145. 166 
 
 Teele v. Bishop of Derry 158, 701. 715, 
 
 727, 741 
 
 Tefft V. Steam 891 
 
 Telford v. Barney 404, 779 
 
 V. Patton 92 
 
 Teller v. Bishop 673 
 Tempest, Jn re 39, 55, 59, 277 
 
 V. Camoj-s 243 
 
 Temple v. Hawley 34, 365 
 
 Templeton v. Brown 122 
 
 Tenant r. Brown 121 
 
 Tendrill v. Smith 201 
 
 Teneick v. Simpson 38, 231 
 
 Tennant v. Stoney 593, 649 
 
 V. Tennant 245 
 
 Tennent v. Tennent 390 
 
 Tenny v. Jones 355 
 
 V. Simpson 133 
 
 Terhune 11. Colton 576 
 
 Terre v. Am. Board 499. 510 
 
 Terrell v. Matthews 416, 423 
 
 Terrett v. Crombie 218, 222 
 
 V. Taylor 743 
 
 Terry v. Brunson 633, 639 
 
 V. Collier 298 
 
 t'. Hopkins 213 
 
 V. Laible 768 
 
 V. Terry 453, 476, 605, 610, 621, 915 
 
 Tessier v. Wvse 562 
 
 Tetley v. Griffith 658 
 
 Thacker v. Kay 254 
 
 Thackery v. Sampson 380 
 
 Thallheimer r. Brinckerhoff 68 
 
 Thatcher v. Candee 274, 921 
 
 V. Churchill 86 
 
 V. Corder 268
 
 INDEX TO CASES CITED. 
 [References are to aections.] 
 
 cxxxv 
 
 Thatcher v. Omans 298, 2'J'J, .102 
 
 Thompson v. Marley 
 
 128, 
 
 163, 106 
 
 Tliavcr V. Gould 84'J 
 
 V. Meek 
 
 
 270 
 
 v. Ttiaver 511 /j 
 
 I'. Murphy 
 
 
 827 a 
 
 V. Wellington 88, 90, 93, 272 
 
 V. Murray 
 
 
 48 
 
 The Skinners' Case G'J3 
 
 V. Korris 
 
 
 251 
 
 TheuhriilKe v. Killjurn ."tC'J 
 
 V. I'arker 
 
 
 128 
 
 Tliellus(Mi r. Woodford 379, 394, 7.J7 
 
 r. (iuiinly 
 
 
 93 
 
 Theological Kd. Soc. v. Att. Gei). 739 
 
 V. Shakespear 
 
 
 710 
 
 Thetford School 093, 725 
 
 Tliicknesse v. Vernon 130 
 
 Thiehaud v. Dufour 201 n 
 Third Nat. Haiiku. Stillwater Gas Co. 8-_'8 
 
 Thomas v. Hciiiiett G<15 
 
 V. Hrinslield 8(i3 
 
 V. liownian 4^(3 
 
 V. Ciiurchill 79 
 
 V. Chicago 143, 144 
 
 V. Dunning 873 
 
 V. Kliniaker 704, 700, 710 
 
 V. 1m. 1 well tUil 
 
 V. Cilendiuning 8(!3 
 
 V. Gregg 545 
 
 V. Migham 282 
 
 V. Hole 257 
 
 V. Jenks 586, 591, 592 
 
 V. Kelsoe 641 
 
 V. Kennedy 239, 627, 032 
 
 V. McCann 171, 172 
 
 V. McCormack 102 
 V. Merry 75, 79, 80, 863 
 
 V. Oakley 871 
 
 V. Scruggs 404, 420 
 
 V. Sheppard 189, 627, 628 
 
 V. Standiford 137 
 
 V. Stone 221 
 V. Thomas 858, 863, 871, 872 
 
 I). Townsend 774 
 
 V. Walker 126 
 
 V. Williams 213, 547 
 
 Thomassen v. Van Wyngaarden 437 6 
 
 Thomnian's Estate 448 
 Thompson, Jn re 622, 828, 902, 917 
 
 V. Rallard 248 
 
 V. Hoaseley 654 
 
 V. Blackstone 770, 787 
 
 V. IJlair 229, 230, 8(i3 
 
 V. IJranch 134 
 
 V. Brown 405 
 
 V. Conant 299 
 
 V. Corbv 099 
 
 V. Ellsworth r..!i) 
 
 V. Finch 402, 418, 850 
 
 V. Fisher 359 
 
 V. Ford 330 
 
 1). Gaillord 765 
 
 V. Galloupe 518 
 
 V. Garwood 511 c 
 
 V. Gibson 299 
 
 V. Grant 337 
 
 V. Griffin 612 
 
 V. Ilartline 195 
 
 V. Harrison 851 
 
 I'. Ilouze 602 </7 
 
 V. Judge 2(V2 
 
 V. Leach 259, 270 
 
 V. l.cdiard 750 
 
 V. McDonald 918 
 
 V. McGaw 869 
 
 V. McKissick 113, 253 
 
 V. Simpson 361, 833, 800, 807 
 
 V. Sjiiers 438 
 
 V. Thomas 66 
 
 V. Thom[)son 75, 109, 134, 143, 146, 
 
 100, 245, 275, 324, 520, 0!)9, 700, 
 
 712, 7.i2 
 
 V. Tryon 358 
 
 V. Tucker-Osborn 122, 367 
 
 V. Wheatley 195 
 
 Thompson's Appeal 127, 128 
 
 Thomson i'. Clydesdale Bank 122 
 
 V. Eastwood 433 
 
 V. I'eake 913 
 
 Thong I'. Bedford 317 
 
 Thorby r. Yates 654, 607, 889, 900, 901 
 
 Thorn v. Newman 347 
 
 Thornber v. Wilson 701 
 
 Thornborough v. Baker 226 
 
 Thorndike r. Hunt 828 
 
 V. Loring 393, 737 
 
 Thorne v. Cann 347 
 
 V. Heard 861 
 
 Thorner i'. Thorner 134 
 
 Thornhill r. Gilmer 602 i 
 
 Thornton v. Bovden 782 
 
 V. Ellis ' 450, 451 
 
 V. Gilman 245 
 
 V. Henry 84 
 
 V. Howe 700 
 
 V. Irwin 602 v 
 
 V. Jarvin 199 
 
 V. Knox 235, 237, 239 
 
 V. Ogden 915 a 
 
 V. Stokill 842 
 
 V. Wilson 703 
 
 V. Winston 270 
 
 Thorp, In re 429, 462, 463, 464, 468 
 
 V. Fleming 737 
 
 V. Jackson 878 
 
 V. ]\IcCallum 195, 198, 430 
 
 V. Owen 117 
 
 Thorpe r. Iloldsworth 554 
 
 V. Owen 86, 96, 118, 119 
 
 Thouron's I'^state 917 
 
 Thrasher v. Ballard 254, 511 c 
 
 Tlirockmorton v. Throckmorton 145 
 
 Thrupji V. Collett 715 
 
 V. Harmon 605 
 
 Thruxton v. Att'v-Gen. 75, 50!l b 
 
 Thurston r. Dickinson 552 
 
 V. Essington 620 
 
 V. Prentiss 602/". 602/) 
 
 V. Thurston 552, 610 
 
 Thurston, Petitioner 104 
 
 Thvnn r. Thvnn 181, 182, 226 
 
 Tibbits V. Tibbits 112, 113, 110, 123 
 
 Tichenor r. Brewer 720 
 
 Tidd V. Lister 329, 520, 540, 626, 634, 818 
 
 Tiernan v. Bean 232, 238 
 
 V. Poor 97 
 
 V. Kescanicre 855
 
 CXXXVl 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Tiernan v. Roland 
 
 
 231 
 
 V. Thurman 
 
 237 
 
 239 
 
 Tierney v. Moody 
 
 
 305 
 
 V. Wood 
 
 83 
 
 105 
 
 TifEany v. Clark 
 
 197 
 
 205 
 
 V. Munroe 
 
 
 549 
 
 V. Tiffany 
 
 
 142 
 
 Tiffin V. Longman 
 
 
 258 
 
 Tilbury v. Barbut 
 
 
 380 
 
 Tilden v. Green 
 
 
 729 
 
 Tilford V. Torrey 
 
 
 127 
 
 Tillaux V. Tiilaux 
 
 
 162 
 
 Tilley v. Bridges 
 
 
 871 
 
 Tillingbast v. Bradford 
 
 386 a 
 
 555 
 
 V. Champlin 
 
 
 414 
 
 V. Coggeshall 324, 361, 476 a, 928 
 
 Tillison i'. Ewing 8G1 
 
 Tillott, Jn re 177 
 
 Tilt, Jie 131 
 
 Tilton V. Hunter 241 
 
 V. Tilton 84, 186 
 
 Timbers v. Katz 639 
 
 Timson v. Eamsbottom 438 
 
 Tindall v. Harkinson 175 
 
 Tinnen v. McCane 863 
 
 Tingier v. Cbamberlin 382 
 
 Tinsley i;. Tinsley 126 
 
 Tippetts V. Walker 757 
 
 Tipping V. Power 892 
 
 Tipton V. Powell 151, 165 
 
 Titcbenell v. Jackson 82 
 
 Titcomb v. Currier 78G a 
 
 V. Morrill 81, 1G2 
 
 Titley v. Durant 672 
 V. Wolstenholme 294, 339, 340, 494, 
 
 495 
 
 Tobv V. McAllister 232, 237 
 
 Todd V. Buckman 592, 602 
 
 V. Lee 660 
 
 V. Moore 205 
 
 V. Munson 79 
 
 V. Sawver 386 
 
 V. Todd 562 
 
 V. Wilson 901, 904 
 
 Toder v. Sansom 395 
 
 Tokerr. Toker 98,104 
 
 Tolar V. Tolar 98, 104, 109, 161 
 
 Tolleraache v. Coventry 373 
 
 Toller V. Carteret 71 
 
 Tolles V. Wood 815 a 
 
 Tolleson v. Blackstock 82 
 
 Toman v. Dunlop 523 
 
 Tombs V. Rock 573 
 
 Tomkvns v. Ladbroke 635 
 
 Tomlin v. Hatfield 413 
 
 Tomlinson v. Dighton 511 b, 657 
 
 V. Steers 347 
 
 Tompkins v. Mitchell 136, 238, 337 
 
 V. Powell 218 
 
 V. Tompkins 569 
 
 V. Wheeler 585, 593 
 
 V. Willan 315 
 
 Tompkyn v. Sandys 248 
 
 Tongue v. Nutwell 380 
 
 Tophara v. Duke of Portland 511, 511 a 
 
 Toppan V. Ricomio 816 
 
 Torbett v. Twining 649 
 
 Toronto G. T. Co. v. Chicago, &c., R. 
 
 Co. 828, 878 
 
 Torrence v. Shedd 126 
 
 Torrey v. Bank of Orleans 129, 206 
 
 V. Buck 171, 180 
 
 V. Deavitt 243 
 
 Totham v. Vernon 100 
 
 Tottenham, Jn re 196 
 
 Tourney v. Sinclair 673 
 
 Tourviile v. Naish 221 
 
 Tower v. Bank of River Raisin 588 
 
 Towers v. Hagner 664, 665 
 
 V. Moore 226 
 
 Towle V. Ewing 511 c 
 
 V. Mack 910 
 
 V. Nesmith 699 
 
 V. Swasey 899 
 
 V. Wadsworth 126, 127 
 
 Towler v. Towler 248 
 
 Towles V. Owsley 658 
 
 Towne v. Ammidown 262, 417, 420, 426 
 
 Townend v. Townend 429, 430, 464 
 
 Townley i-. Bidwell 704 
 
 V. Bond 267 
 
 V. Sherborne 334, 412, 415, 416, 417, 
 
 419 
 
 Townsend, Ex parte 402, 405 
 
 Townsend, In re 511 a 
 
 V. Barber 422 
 
 V. Cams 701 
 
 V. Early 388 
 
 V. Fenton 226 
 
 V. Townsend 472 
 
 1'. Wilson 344, 414, 492, 505 
 
 V. Windham 68, 665 
 
 Townshend v. Brooke 891, 894 
 
 V. Champenown 349 
 
 V. Grommer 351 
 
 V. Stangroom 176, 185, 226 
 
 V. Townshend 855, 861, 863, 865 
 
 V. Westacott 149 
 
 Townson v. Tickell 259, 270, 273 
 
 Tracv v. Gravois Rd. Co. 910 
 
 V. Keith 680 
 
 V. Sackett 189 
 
 V. Strong 556 
 
 V. Tracv 570 
 
 Trafford v. Boehm 380, 455, 460, 462, 848, 
 
 877 
 V. Trafford 373 
 
 V. Wilkinson 229 
 
 Tramp's Case 486 
 
 Trans. University v. Clay 466 
 
 Trapnal v. Brown 85 
 
 Trask v. Donaghue 259, 262 
 
 Travell v. Danvers 275 
 
 Travers v. Townshend 901 
 
 Travinger v. McBurney 214 
 
 Travis v. Illingworth 290, 291 
 
 Treadwell v. Cordis 499 
 
 V. Salisbury Mills 757 
 
 Treat v. I'eck 768 
 
 Treat's App. 38, 720, 724, 748 
 
 Treats v. Stanton 330 
 
 Tregonwell v. Sydenham 151, 152, 160, 
 380, 385, 390, 396 
 Trembles v. Harrison 55 
 
 Tremper v. Burton 143, 147 
 
 Trench ». Harrison 126, 127, 138, 842 
 
 Trenholme, Ex parte 126 
 
 Trent v. Hauning 312
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 CIXXVll 
 
 Trent v. Harding 309 
 
 V. Trent 509 
 
 Trentun banking Co. v. Woodruff G47 
 
 Trepliageu v. Burt 127 
 
 Trevunion v. Morse 219 
 
 V. Vivian 622 
 
 Trevele d. Coke bM 
 Trevelyan v. Charter 204, 229, 230 
 
 Treves v. Townshend 404, 408 
 Trevor v. Trevor 347, 361, 369, 371, 390, 
 
 828, 834 
 Trexler v. Miller 182 
 Trezavant v. Howard 04 
 Tribble v. Oldham 235 
 Trickey v. Trickey 397 
 Trim's Estate 699 
 Triuilestown v. Colt 584 
 V. Hammil 408 
 Trimmer v. Bayne 150 
 Trimmer Church v. Watson 559 
 Trinidad v. Milwaukee, &c. Co. 223 
 Trinity College v. Brown 326 
 Triplelt i'. Jarason 918 
 Tripp V. Frazier 160, 575 
 Tritt V. Colwell 640 
 V. Crotzer 75, 77, 83 
 Trollop V. Linton 34, 511 c 
 Trost V. Dingier 189 
 Trot V. Vernon 112, 569, 570 
 V. Dawson 907 
 Trotter r. Blocker 60, 05 
 V. Erwin 232, 234 
 Trower r. Knightley 498 
 Trov t'. Haskell 45 
 'v. Troy 610 
 Trov, &c. Kailwav v. Kerr 757 
 Trov Citv Bank v. Wilcox 24G a 
 Truebody v. Jacobson 232, 237 
 Truell V. Tysson 783 
 Truesdell y. Calloway 217 
 Truett V. Williams 408 
 Trull V. Bigelow 218, 222 
 V. Eastman 188 
 V. Trull 814 
 Truluck V. People 222 
 Trumbull v. Trumbull 358 
 Trust Co. V. Railroad 918 
 Trustees v. Wright 232 
 Trustees, etc. v. Atlanta 437 a 
 V. Augusta 554 
 V. Chambers 748 
 V. Clay 400 
 V. Jackson Square Church 131, 729 
 V. Prentiss 602 n 
 V. Tufts 451 
 Trustees of Phillips Academy v. King 42 
 Trustees of Smith's Char. v. North- 
 ampton 508, 724 
 Trustees of Theol. Sem. v. Kellogg 748 
 Trutch I'. Lamprell 402 
 Try on. In re 270, 901 
 V. Sutton 640 
 Tucker, In re 460 
 V. Andrews 213, 627 
 V. Bean 52 
 V. Boswell 550, 551 
 V. Burrow 144, 147 
 V. Gordon 041 
 V. Guest 680 
 
 Tucker v. Horneman 
 
 476 
 
 a, 928 
 
 r. Johnson 
 
 
 309 
 
 V. Kayess 
 
 
 152 
 
 V. Mo'reland 
 
 
 33 
 
 r. Nebeker 
 
 
 437 a 
 
 V. Pliipps 
 
 
 183 
 
 V. Seamen's Aid See. 40, 93, 7.30, 748 
 
 V. Stale 2G1 a, 464 
 
 r. Tucker 330, 803 
 
 V. Zimmerman 815 0, 873 
 
 Tudor V. Samyne 653 
 
 Tufl'nell V. Page 739 
 
 Tug Uiver Co. v. Brigel 903 a 
 
 TuUett V. Armstrong 646, 648, 652, 053, 
 
 067,668, 670, 071 
 
 V. Tullett 005, Oil 
 
 TuUock r. Hartley 71 
 
 Tunnard i'. Littell 133 
 
 Tunno, Uxparte 275, 282, 297 
 
 In re 571 
 
 Tunstall v. Boothby 09 
 
 V. Trappes 222 
 
 Tupper V. Fuller 554 
 
 Tupple V. Viers 232 
 
 Turnage v. Green 918 
 
 Turnbull v. Gadsden 171, 174 
 
 V. Pomeroy 432 
 
 Turner, Ex parte 240, 795, So2 
 
 In re 309, 457, 848 
 
 V. Buck 346 
 
 f. Corney 402, 821, 912 
 
 V. Davis 6-33 
 
 V. Flagg 607 
 
 V. Framptou 476 a, 928 
 
 V. Harvey 177. 180, 770 
 
 V. Hill ■ 196 
 
 V. Hoole 212 
 
 V. Hoyle 794 
 
 V. Javcox 585 
 
 V. Johnson 602^, 602 n, 602 y, 602 66 
 
 *. King 171 
 
 V. Laird 500 
 
 V. Maule 279, 292, 927 
 
 V. Newport 556 a 
 
 V. Ogden 701 
 
 V. Pettigrew 127, 836 
 
 V. Russell 160 
 
 V. Sargent 360, 369, 375 
 
 V. Sawver 127 
 
 V. Smith 864 
 
 V. State 658 
 
 V. Turner 184, 456, 616, 619 
 
 V. Wardle 260 
 
 Turner's Case 633, 053 
 
 Turney r. Williams 408 
 
 Turnley r. Kelley 647 
 
 Turpin v. Sanson 456 
 
 Turquand r. Marshall 467 
 
 Turvin v. Newcome 393 
 
 Tusch t'. German S. Bauk S2 
 
 Tuthill V. Tracv 602 66 
 
 Tutt c. R. R. C'o. 437 a 
 
 Tuttle, In re 545 
 
 V. Fowler 641 
 
 V. Gilmore 452 
 
 V. Merchants' Nat. Bank 277, 282 
 
 V. Ral)inson 918 
 
 Twaddell's Appeal 468, 4.'>9, 914 
 
 Tweddell v. Tweddell 201, 614
 
 cxxxvm 
 
 INDEX TO CASES CITED. 
 
 [References are to sections.] 
 
 Tweedy v. Urquliart 
 Twentv-Third St. 13. Church v. 
 
 ueir 
 Twisden v. Wise 
 Twisleton v. Thelwell 
 Twitchell v. Drury 
 Twopenu^' v. Peyton 
 Twynue's Case 
 Twypont v. Warcup 
 Tyars v. Alsop 
 Tvford V. Tliurston 
 Tyldeii v. Hyde 499, 501, 
 
 Tylee v. Tylee 
 Tyler, /« re 
 
 V. Black 173, 
 
 V. Deblois 
 
 V. Granger 
 
 V. Lake 348, 
 
 V. Herring 
 
 V. Mayre 
 
 V. Sanborn 
 
 V. Odd-Fellows' Asa'n 
 
 V. Tyler 82, 86, 
 
 r.Webb 
 Tyree v. Williams 
 Tyrrell v. Hope 
 
 V. Marsh 
 
 V. Morris 
 Tyrrell's Case 
 Tyrrell's Trusts, In re 
 Tyrson v. Mattair 
 Tyrwhitt v. Tyrwhitt 
 Tyson v. Blake 
 
 V. Jackson 
 
 V. Latrobe 
 
 V. Mickle 
 
 V. Passmore 
 Tyte V. Wiilia 
 
 277, 296 
 
 Cor- 
 
 729 
 
 639, 64U 
 
 747, 892 
 247 a 
 
 119, 555 
 590 
 174 
 203 
 926 
 
 787, 803 
 818 
 384 
 
 173, 184 
 
 2U3 
 
 437 a 
 
 648, 649 
 
 764, 779 
 277 
 206 
 607 
 
 122, 212 
 222 
 780 
 
 310, 648 
 784 
 
 225, 8U9 
 
 161, 301 
 401 
 676 
 
 347, 348 
 546 
 574 
 768 
 
 780, 784 
 
 38, 231 
 
 380 
 
 u. 
 
 Udal V. Udal 
 Udell V Kenny 
 Uhrich v. Beek 
 Ulrici V. Boeckelcr 
 Ulman v. Barnard 
 Ulster Buildinsj Co., In re 
 Unckles r. Colgate 
 Underbill v. Horwood 
 
 V. Morgan 
 Underwood v. 
 Bank 
 
 V. Curtis 
 
 V. Hatton 
 
 511c 
 
 628, 630, 645 
 
 221 
 
 837 
 
 243 
 
 122 
 
 21 
 
 186, 187, 192 
 
 843 
 
 Boston Five Cents S. 
 
 843 
 
 382, 448 
 
 846, 924 
 
 V. Stevens 417, 419, 423, 424, 444, 406, 
 
 467, 849 
 
 Uniacke, In re 259 
 
 V. Giles 103 
 
 Union Bank v. Baker 130 
 
 V. Jacobs 754, 757 
 
 V. Murray-Aynsley 122 
 
 Union Bank of Tennessee v. Ellicott 588 
 
 Union College v. Wheeler 126, 132 
 
 Union Life Ins. Co. v. Hanford 206 
 
 V. Rpaids 828 
 
 Union Nat. Bank v. Goetz 828 
 
 Union Pac. Ry. Co. v. Artist 710 
 
 Union Stock Yards Bank v. Gillespie 206 
 
 Unitarian Society v. Woodbury Y9, 82, 138 
 United States v. Addyston Co. 21 
 
 V. Coffin 202 
 
 V. Joint Traffic Ass'n 21 
 
 V. Trans-Missouri Freight Ass'n 21 
 V. E. O. Knight Co. 21 
 
 V. Vaughn 438 
 
 U. S. Ins. Co. V. Schriver 222 
 
 U. S. Mortgage Co. v. Sperry 437 a 
 
 U. S. Trust Co. V. Stanton 343 
 
 Univ. Soc. V. Fitch 724 
 
 University v. Bank 863, 8tJ5 
 
 V. Fay 743 
 
 University College, In re 743 
 
 University College of London v. Yar- 
 row 704, 738 
 Updegraph v. Commonwealth 697 
 Uphani V. Varuey 297, 299, 312 
 V. Wyuian 859 
 Uppington v. Buller 202 
 Upshaw V. Hargrove 220, 232, 239 
 Upshur r. Briscoe 58 
 Upson V. Badeau 407 
 Urann v. Coates 82, 103 
 Urch V. Walker 261, 264, 271, 401, 503, 927 
 Urkett V. Coryell 60 
 Urmry'sEx'rs v. Wooden 694, 699,724, 748 
 Utica'ins. Co. v. Lynch 471 
 Utterson v. Maire 225 
 Uvedale v. Patrick 276 
 V. Uvedale 747, 892 
 Uzzell V. Mack 232 
 Uzzle V. Wood 104 
 
 Vaccaro v. Cicalla 910, 923 
 
 Vachell v. Roberts 451 
 
 Vail V. Knapp 72 
 
 V. Vail 305 
 
 Valentine v. Bell 658 
 
 V. Richardt 79, 166 
 
 V. Valentine 918 
 
 Vallance v. Miners' Life Ins. 
 Valle V. Bryan 
 Vallette v. Bennett 
 
 V. Tedens 
 Valliant v. Diodmede 
 Van Amringe v. Peabody 
 Van Berghen v. Demarest 
 Vanbever v. Vanbever 
 Van Blarcom v. Dager 
 Van Bokkelen v. Tinges 
 Van Buskirk v. Ins. Co. 
 
 V. Van Buskirk 
 Van Cott V. Prentice 
 Vance v. E. Lancaster R. Co. 
 
 V. Kirk 
 
 V. McLaughlin 
 
 V. Vance 
 Vandebende v. Livingston 
 Vandenberg v. Palmer 
 Vanderbilt, In re 
 Vanderheyden v. Crandall 
 
 V. Ma'llory 
 
 r. Vanderheyden 
 Vanderplank v. King 
 Vanderstegen v, Withara 
 
 Co. 589 
 
 127 
 
 320 
 
 206 
 
 536 
 
 243 
 
 602 ee 
 
 840 
 
 550 
 
 794, 873 
 
 438 
 
 126 
 
 82, 104 
 
 478 
 
 828 
 
 642 
 
 929 
 
 872, 877 
 
 96, 165 
 
 511 
 
 305, 307, 523 
 
 660 
 
 468, 918 
 
 376, 385, 390 
 
 17
 
 INDEX TO CASES CITED. 
 [References are to sectiooa.] 
 
 Vander Volgen v. Yates 162, 705, 710 
 
 Vaadervoot, Jn re 783 
 
 Vaiidever v. Ireemaa i;i7 
 
 Vandever's Appeal 273, 411, 412, 415 
 
 Van Doreii r. Uldea 545 
 
 r. Tudd 232 
 
 Van Duvue v. Van Duvne 115 
 
 Van Duzer i'. Van Duzer 603, 627, 628, 631 
 Vane v. Dungannon 511 a 
 
 Van Epps v. Van Deusen 627, 628, 629, (J31, 
 
 632, G41 
 
 V. Van Epps 129, 195, 205, 206, 430 
 Van Grutten v. Koxwell 358 
 
 Van Horn i-- Fonda 205, 262, 264, 401, 538 
 Vaiihorn r. Harrison 312 
 
 Van Home v. Everson 680 
 
 Van Houten v. First Reformed Dutch 
 
 Church 742 
 
 Van Kirk v. Skillmaa 680 
 
 Vann v. Barnett 816 
 
 Vanness r. Jacobs 928 
 
 Vannoy r. Martin 171 
 
 Van Kensalaer v. Stafford 438 
 
 Van liensselaer v. Dunkin 652 
 
 Van Saudan v. Moore 886 
 
 Van Sittart i". Van Sittart 654 
 
 Van Vechten r. Van Vechten 380, 391, 619, 
 
 620 
 Van Vronker r. Eastman 554 
 
 Van Weckie r. Malla 205 
 
 Van Winckle i-. Van Houten 569, 570 
 
 Van Wyck, In re 
 
 
 282, 
 
 411, 499 
 
 Vardon's Trusts, Jie 
 
 
 
 627, 671 
 
 Varick v. Briggs 
 
 
 
 218 
 
 V. Edwards 
 
 
 68, 
 
 188, 803 
 
 Varner v. Gunn 
 
 
 
 858 
 
 Varney v. Stevens 
 
 
 
 554 
 
 Varnum r. Meserve 
 
 199, 
 
 602 
 
 m, 602/ 
 
 Varrell v. Wendell 
 
 
 
 254 
 
 Vartie v. Underwood 
 
 
 
 680 
 
 Vattier r. Hinde 
 
 
 218, 
 
 219, 221 
 
 Vaughan r. Barclay 
 
 
 
 71 
 
 V. Buck 
 
 451, 
 
 547, 
 
 634, 636 
 
 V. Burslem 
 
 
 
 373 
 
 V. Evans 
 
 
 
 593 
 
 V. Thurston 
 
 
 
 900 
 
 V. Vanderslegea 
 
 170, 
 
 658, 
 
 848, 849 
 
 V. Walker 
 
 
 
 663 
 
 Vaux V. Parke 
 
 
 
 305, 555 
 
 Vaux's Estate 
 
 
 
 511 c 
 
 Veale's Trusts, In re 
 
 
 
 256 
 
 Veasey v. Doton 
 
 
 
 173 
 
 Veasie v. Williams 
 
 
 
 228 
 
 Veazie v. Forsaith 
 
 
 
 477 
 
 Venables v. Coflnian 
 
 
 
 725, 748 
 
 V. East Ind. Co. 
 
 
 
 262 
 
 V. Fojle 
 
 
 
 243, 402 
 
 V. Morris 
 
 
 
 319 
 
 Vermont Marble Co. v. 
 
 SmitL 
 
 
 178 
 
 Verner's Estate 
 
 
 
 891 
 
 Verney r. Carding 
 
 
 
 828, 837 
 
 V. Verney 
 
 
 
 532, 578 
 
 Vemon, Ex parte 
 
 
 
 126 
 
 V. Blackerl^ 
 V. Board, Ate. 
 
 
 
 874 
 
 
 
 831 
 
 V. Keys 
 
 
 
 173 
 
 V. Morton 
 
 685, 
 
 591 
 
 , 593, 602 
 
 V. Vawdry 
 
 
 
 260, 844 
 
 i>. Vernoa 
 
 111, 
 
 112 
 
 367, 611 
 
 Vernon's Case 
 
 Verplanck v. Insurance Co. 
 
 Verplaiik v. Caines 
 
 Verulain v. Bathurst 
 
 Vesey v. Janisoa 
 
 Vestal V. Sloan 
 
 Vestry, &c. v. Barksdale 
 
 Vctterleia v. Barnes 
 
 Vez V. Emery 
 
 Vick V. Mc Daniel 
 
 Vickers v. Cowell 
 
 V. Scott 
 Vidal V. Girard 42, 43, 45, 
 
 V. Philadelphia 
 Vigor V. Harwood 
 Vigrass i'. Binfield 
 Villard v. Chovin 
 Villers v. Beaumont 
 Villers-Wilkes, Re 
 Villiers r. Villiers 
 Villines v. Nortleet 
 Vincent v. Beshopre 
 
 V. Ennys 
 
 V. Godson 
 
 V. Newcombe 
 Vine V. Kaleigh 
 Viney t*. Abbott 
 Vinton's Appeal 
 Virginia Coal Co. v. Kelly 
 Vizoneau v. Peagram 
 Volans V. Carr 
 Volizen V. Yates 
 Von Hesse v. MacKaye 
 Von Hurter c. Spcrgeman 
 Von Trotha v. Bamberger 
 Voorhees v. Church 
 
 V. Stoothorp 
 Vose V. Grant 
 Voj'le V. Hughes 
 Vreeland v. Van Horn 
 
 I'. Williams 
 Vyse V. Foster 
 Vyvyan v. Vj-vyan 
 
 W. 
 
 453, 
 
 68, 
 
 CXXXIX 
 
 94 
 207 
 137 
 
 369 
 
 159, 711, 712 
 
 171 
 
 918 
 
 873 
 
 465, 901 
 
 ]00 
 
 136 
 
 550, 551, 771 
 
 46, 240, 694, 
 
 700, 724, 748 
 
 694 
 
 550 
 
 825, 826, 827 
 
 618 
 
 104, 108 
 
 727 
 
 315, 319 
 
 850 
 
 511 b 
 
 784 
 
 260 
 
 451 
 
 397, 498 
 
 104 
 
 545 
 
 127 
 
 655, 656 
 
 623 
 
 730 
 
 104 
 
 433 
 
 79 
 
 206 
 
 918 
 
 242 
 
 101, 102, 438 
 
 849 
 
 171 
 
 469 
 
 851 
 
 Wacker v. Wacker 
 
 124 
 
 Wackerbath, Ex parte 
 
 416 
 
 V. Powell 
 
 404 
 
 Wadd V. Hazelton 
 
 97, 163, 2G0 
 
 Waddingham i'. Loker 
 
 82 
 
 Waddingtiin v. Banks 
 
 38, 231 
 
 Waddy v. Hawkins 
 
 918 
 
 Wadey. Amer. Colonization Soc. 743 
 
 V. Dick 
 
 927 
 
 V. Fisher 
 
 647, 648 
 
 V. Greenwood 
 
 239 
 
 V. Harper 199, 209 
 
 602 V, 602 X 
 
 V. I'aget 
 
 13, 347 
 
 V. Petti bone 
 
 135 
 
 V. Pope 
 
 912 
 
 Wadham r. Society, &c. 
 
 600 
 
 Wadsworth, Jn re 
 
 275, 411 
 
 V. Scliisselbauer 
 
 815 6 
 
 t'. Wendell 
 
 95 
 
 Wagenseller v. Prettyman 
 
 915 
 
 Wager v. Wager 
 
 121
 
 cxl 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Wacrner v. Raird 228 
 
 Wajf non v. Pease 544, 820 a 
 
 Wairstafle v. Lowerre 918 
 
 t'. Head 219, 220 
 
 V. Smith 306, 648, 655, 070 
 
 V. Wa.trstaffe 93, 301 
 
 Wailes v. Cooper 218 
 
 Wain V. Egmont 600 
 
 Wainwright v. Elwell 13 
 
 V. Low 827 a 
 
 V. Waterman 249, 503, 510 
 
 Wait I'. Day 1-13 
 
 V. Maxwell 35 
 
 Waite V. Morland 627 
 
 V. Whorwood 835, 837 
 
 Wake V. Tinkler 330, 520 
 
 Wakefield v. Maffett 580 
 
 r. Marr 52 
 
 Wakeman v. Grover 590, 592, 594, 600 
 
 I'. Rutland 787, 874 
 
 Walburn v. Ingilby 879 
 
 Walcott V. Cady 541 
 
 Walden v. Karr 86, 863 
 
 Waldo V. Caley 699, 705 
 
 V. Cummings 541 
 
 V. Waldo 540, 776 
 
 Waldron v. Chastney Q02p, 602 aa 
 
 V. McComb 768, 786 a 
 
 V. Sloper 438 
 
 Wales V. Newbould 679 
 
 Walev's Trusts, In re 388 
 
 Walford v. Gray 208 
 
 V. Liddel 862 
 
 Walke V. Moore 253 
 
 Walker, In re 466, 584, 633, 636, 904 
 
 V. Beal 920 
 
 V. Brooks 873 
 
 17. Brown 145 
 
 V. Brungard 134, 135, 199, 288, 292, 
 
 598, G02p, 602 v 
 
 V. Burngood 126 
 
 V. Bynam 468 
 
 V. Crews 96 
 
 u. Crowder 602 A, 612 
 
 17. Daly 166 
 
 V. Dean 327 
 
 V. Drury 636 
 
 V. Dunlop 171 
 
 V. Elledge 836 
 
 r. Fawcett 328 
 
 V. Locke 84, 162 
 
 V. Maunde 257, 509 
 
 V. Miller 242 
 
 V- Mower 383 
 
 V- Ogden 72 
 
 V, Page 456 
 
 V. Peck 678 
 
 V. Perkins 214 
 
 V. Preswick 239, 876 
 
 V. Richardson 23, 384 
 
 V. Sedgwick 232, 237 
 
 17. Sharp 920 
 
 17. Shore 500, 613, 771 
 
 V. Smalwood 474, 764, 770, 789, 795 
 
 V. Smvser's Ex'rs 511 
 
 V. Svmonds 402, 412, 413, 419, 421, 
 
 440. 453, 467, 821, 830, 
 
 847, 848, 851, 875, 923 
 
 V. Taylor 814 
 
 Walker v. Walker 226, 229, 230, 422, 507, 
 508, 510, 006, 672, 
 
 
 694, 748, 
 
 803, 918 
 
 V. Wetherell 
 
 
 618 
 
 V. Whiting 
 
 
 121 
 
 V. Williams 
 
 
 238 
 
 17. Woodward 
 
 
 471 
 
 V. 
 
 297, 
 
 453, 401 
 
 Walker's Estate 
 
 
 918 
 
 Walkerlv, In re 
 
 
 382, 920 
 
 Wall 17. Bright 38 
 
 122, 231, 
 
 337, 342 
 
 V. Cockerell 
 
 
 202 
 
 17. Stubbs 
 
 
 176 
 
 V. Tomlinson 
 
 
 639, 640 
 
 17. Town 
 
 
 1U9 
 
 Wall St. Meth. Church v 
 
 . Johnson 
 
 277 
 
 Wallace i7. Anderson 
 
 
 3S6 6 
 
 V. Auld 
 
 
 627, 645 
 
 17. Berdell 
 
 
 104 
 
 17. Bowens 
 
 
 144 
 
 V. Coster 
 
 
 652, 601 
 
 17. Duffield 
 
 75, 126, 
 
 127, 128 
 
 V. Langston 
 
 
 225 
 
 V. Marshall 
 
 
 133 
 
 V. McCullough 
 
 
 127, 128 
 
 r. Taliaferro 
 
 
 639 
 
 V. Wainwright 
 
 
 13 
 
 t7. Wallace 
 
 
 201 
 
 Waller i7. Armistead 
 
 
 213, 851 
 
 17. Barrett 
 
 
 846, 924 
 
 17. Catlett 
 
 
 452 
 
 17. Childs 
 
 701 
 
 702, 714 
 
 17. Harris 
 
 
 602 Jf 
 
 t'. Jones 
 
 
 891 
 
 17. Teal 
 
 
 770 
 
 Wallasey Local Board v 
 
 . Gracey 
 
 732 
 
 Walley i7. Whalley 
 
 196 
 
 828, 878 
 
 Wallgrave v. Tebbs 77, 83, 93, 
 
 181, 216, 
 
 
 
 511 a 
 
 Wallingford v. Heard 
 
 
 856 
 
 Wallington v, Taylor 
 
 
 576 
 
 Wallington's E-^tate 
 
 
 205 
 
 Wallis 17. Freestone 
 
 
 506 
 
 17. Loubat 
 
 
 202 
 
 17. Thornton 
 
 416, 420, 602 g 
 
 17. Wallis 
 
 
 299 
 
 Walmesley v. Booth 
 
 188 
 
 , 202, 203 
 
 Walraven i7. Lock 
 
 
 75 
 
 Walrond v. Walrond 
 
 
 107, 471 
 
 Walsh, In re 
 
 
 603 
 
 V. Dillon 
 
 
 888 
 
 V. Gladstone 
 
 273 
 
 , 291, 731 
 
 r. Stille 
 
 
 242 
 
 17. Wallinger 248, 
 
 250, 258, 
 
 507, 5116 
 
 1!. Walsh 
 
 52 
 
 , 618, 623 
 
 17. Wason 
 
 
 645 
 
 Walston V. Smith 
 
 
 143, 145 
 
 Walter v. Jones 
 
 
 206 
 
 V. Klock 
 
 
 215 
 
 17. Logan 
 
 
 501 
 
 17. Saunders 
 
 
 633 
 
 V. Walter 
 
 
 305 
 
 Waltham's Case 
 
 
 169, 181 
 
 Walton V. Avery 
 
 
 918 
 
 V. Follansbee 
 
 
 76 
 
 V. Walton 
 
 94, 150 
 
 , 151, 152 
 
 Walworth v. Holt 
 
 
 8S5 
 
 Walwyn i7. Coutts 
 
 367 
 
 , 585, 593 
 
 ».' Lee 
 
 
 218, 219
 
 INDEX TO CASES CITED. 
 [B«(ereDce8 axe to Bectioas.] 
 
 Wamble r. Battle 
 Wamburzee r. Kennedy 
 Wankford v. Waiikford 
 Warburtoii v. Farn 
 
 V. Saiuiys 
 
 r. Warburtoa 
 Ward t\ Ainory 
 
 V. Arch 
 
 r. Armstrong 
 
 V. Arredoiido 
 
 r. Audlaiid 
 
 r. Bakkelea 
 
 V. Barrows 
 
 V. Brown 
 
 V. Butler 
 
 V. Davidson 
 
 V. Devon 
 
 V. Dorch 
 
 V. Harvey 
 
 t'. Hipwell 
 
 r. Kitchen 
 
 V. Laiit 
 
 V. Leiithal 
 
 V. Lewis 
 
 V. Mattliews 
 
 V. Morfran 
 
 V. Morrison 
 
 V. Screw Co. 
 
 V. Smith 
 
 V. Spivej' 
 
 V. Tinkham 
 
 V. Trotter 
 
 V. Van Bokkelen 
 
 V. Ward 79, 121, 131 
 
 V. Webber 
 
 V. Yates 
 Ward's Settlement 
 Warden r. Richards 
 Wardens r. Att. Gen. 
 Wardlaw r. Gray 
 Wardle i'. Claxton 
 
 V. Hargreaves 
 Wardour r. Beresford 
 Wardwell v. McDowell 
 Ware v. Cann 
 
 V. Ilorwood 
 
 V. Mallard 
 
 V. McCandlish 
 
 V. Polhill 
 
 V. Richardson 
 
 V. Sharp 
 Wareham v. Brown 
 Warfield, Ex parte 
 
 V. Ross 
 Waring, In re 
 
 V. C. & D. R. Co. 
 
 V. Coventry 
 
 V. Darnall 
 
 r. Purcell 
 
 V. Waring 
 Warland v. Colwell 
 Warley v. Warley 
 Warman v. Seaman 
 Warneford v. Thompson 
 Warner r. Bates 
 
 V. Daniels 
 
 r. Martin 
 
 V. Van Alstyne 
 
 r. Whittaker 
 
 232 
 
 8(;3 
 
 204 
 
 784 
 
 414, 505 
 
 510, 581 
 
 312, G27 
 
 i:J7 
 
 71 
 
 101 
 
 22U 
 
 783, 785 
 202 
 
 2G2, 264 
 128 
 501 
 277 
 863 
 
 413, 733 
 
 466 
 
 161 
 
 5116 
 
 593, 594 
 133 
 250 
 438 
 610 
 
 205, 456 
 133 
 454 
 590 
 
 229, 230 
 
 142, 169, 476, 809 
 
 183 
 
 903 a 
 
 455 
 
 499 
 
 865 
 
 627, 628, G39 
 
 648, 649 
 282 
 183 
 
 270, 499 
 386 
 187 
 
 112, 117 
 
 544, 545 
 605 
 
 310, 312 
 
 660 
 
 510 
 
 630 
 
 187 
 
 34 
 
 858 
 
 506 
 
 438, 439, 786 a 
 
 556 
 
 438, 457, 562, 672 
 
 328 
 
 564, 566 
 
 161 
 
 765 
 
 112, 114,115, 116 
 
 167, 171, 173, 230 
 
 243 
 
 232, 239 
 221 
 
 Warner r. Winslow 
 Warrall v. Morlar 
 Warren v. Adams 
 
 V. Clancy 
 
 r. Copelin 
 
 t'. Davies 
 
 V. Fenn 
 
 V. Haley 
 
 V. Howard 
 
 V. kiidall 
 
 V. Steer 
 
 r. Tvnan 
 
 r. L iiion Bank 
 
 V. Warren 
 
 V. Warrick 
 Warriiier v. Rogers 
 Warter r. Anderson 
 
 V. Hutchinson 306, 
 
 Wartman i'. Wartman 
 Wartrani r. Wartram 
 Warwick r. Edwards 
 
 f. Hawkins 
 
 V. Warwick 
 Wasby «;. Foreman 
 Washborne v. Downes 
 Washburn v. Burns 
 
 V. Sewell 46, 699, 724, 
 Washington, &c. R. R. Co. v. 
 
 der, &c. R. R. Co. 
 Washington v. Emery 
 Wassell r. Leggatt 
 Wasson v. Connor 
 Watchman, The 
 Waterhouse v. Stansfield 
 Waterman v. Alden 
 
 V. Baldwin 
 
 V. Cochran 
 
 V. Spaulding 
 
 V. Sprague Manuf. Co. 
 
 V. Webster 
 Waters v. Bailey 
 
 V. Conolly 
 
 r. Groom 
 
 V. Margerum 
 
 V. Stickney 
 
 V. Tazewell 
 
 V. Thorn 
 Watertown v. White 
 Watkins, Ex parte 
 
 V. Check 
 
 V. Holman 
 
 V. Jones 
 
 V. Quarles 
 
 V. Russell 
 
 V. Specht 312, 
 
 V. Stockett 
 
 V. Weston 
 Watkyns v. Watkyns 628, 
 Watson, Ex parte 
 
 V. Bagaley 
 
 t'. Bane 
 
 I'. Bothwell 
 
 V. Brickwood 
 
 r. Holden 
 
 r. James 
 
 V. Knight 
 
 I'. Le Row 
 
 V. Marshall 
 
 V. Martin 
 
 cxli 
 
 221 
 
 239 
 
 863 
 
 720 
 
 438 
 
 571 
 
 232 
 
 648 
 
 873 
 
 272 
 
 139 
 
 84, 85 
 
 454, 467 
 
 554 
 
 361 
 
 97, 98 
 
 922 
 
 312, 315, 581 
 
 474 
 
 825 
 
 605 
 
 648, 651 
 
 222, 834 
 
 246 a 
 
 377 
 
 681 
 
 730, 741, 748 
 
 Alexan- 
 
 282 
 
 466 
 
 863 
 
 223 
 
 592 
 
 72 
 
 276, 891 
 
 768 
 
 891, 900 
 
 780, 781, 783 
 
 591 
 
 791 
 
 129, 196 
 
 590 
 
 199 
 
 500 
 
 182 
 
 515, 653 
 
 199, 202 
 
 757 
 
 65 
 
 795, 800, 810 
 
 41 
 
 277 
 
 380 
 
 239 
 
 316, 343, 858 
 
 226 
 
 357 
 
 633, 637, 673 
 
 752 
 
 589 
 
 238 
 
 182 
 
 566 
 
 459 
 
 763 
 
 593 
 
 142, 149, 218 
 
 630 
 
 248
 
 cxlii 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 Watson V. Mayrant 121 
 
 V. Pearson 312, 315, 414, 499, 501 
 
 V. Saul 57G, 745, 8G;5 
 
 V. Smith 378 
 
 V. Stone 456, 914 
 
 V. Sutro 866 
 
 V. Thurber 680 
 
 V. Toone 861 
 
 V. Wells 232 
 
 V. Young 622 
 
 Watt V. Ball 323 
 
 V. Crevke 511 a 
 
 V. Watt 142 
 
 Watton V. Penfold 750 
 
 Watts V. Bullas 107, 108 
 
 t\ Cresswell 53 
 
 V. Girdlestone 453, 462, 466, 469, 509, 
 
 539, 777 
 
 V. Kancie 809 
 
 V. Symes 347 
 
 V. Turner 520 
 
 Watts' Settlement 292 
 
 Waugh V. Kiley 55 
 
 V. Wyche 921 
 
 Wavell V. Mitchell 875 
 
 Wav V. Fatty 237 
 
 Wav's Settlement 101, 102 
 
 "Trust, Jn re 103, 104 
 
 Waynian v. Jones 418, 419 
 
 Wayne v. Hanham 761 
 
 Wavnesburg College's App. 82 
 
 Weale v. Ollive 100 
 
 Weall, In re 813, 902 
 
 451 
 
 790 
 
 127, 128 
 
 Wearing i'. Wearing 
 Weatherb}' v. St. Giorgio 
 Weaver v. Fisher 
 
 V. Leiman 
 
 
 863, 865 
 
 Webb, In re 
 
 
 466 
 
 V. Bailey 
 
 
 133 
 
 V. Claverden 
 
 
 182 
 
 V. Crawford 
 
 
 520 
 
 v. Daggett 
 
 586, 
 
 590, 600 
 
 V. De Beauvoisin 
 
 
 908 
 
 V. Deitrich 
 
 
 56, 276 
 
 V. Grace 
 
 
 516 
 
 V. Jones 
 
 
 566 
 
 V. Kelley 
 
 
 119 
 
 V. Ledsam 
 
 404 
 
 411, 412 
 
 V. Lugar 
 
 
 196 
 
 V, Neal 
 
 43 
 
 276, 698 
 
 V. Robinson 
 
 
 238, 239 
 
 V. Sadler 
 
 
 254 
 
 V. Shaftesbury 275, 280, 282, 293, 358, 
 
 427, 458, 508, 912, 913 
 
 V. Vermont Central R. Co. 875 
 
 V. Webb 395, 569, 888, 918 
 
 V. Wools 112, 113, 115, 118, 620 
 
 Webb's Appeal 633, 641 
 
 Webb's Estate 587 
 
 Webber v. Webber 480 
 
 Weber v. Bryant 699 
 
 Webster v. Boddington 385, 508 
 
 V. Cooper 299, 307, 312, 315, 317 
 
 V. King 203 
 
 V. Morris 112, 384, 713, 736 
 
 V. Xewbold 863 
 
 V. Vandeventer 274, 343, 921 
 
 V. Webster 438, 672, 674 
 
 V. Wiggin 705 
 
 Wedderburn v. Wedderbum 200, 429, 
 
 430, 454, 470, 745, 851, 863, 804, 
 
 865, 923 
 
 Wedgewood v. Adams 787 
 
 Weed's Estate 902, 910 
 
 Weekham v. Berry 329 
 
 Weekly v. Ellis 133 
 
 Weeks v. Cornwall 765 
 
 V. Lego 660 
 
 V. Weeks 633 
 
 Weems v. Coker 820 a 
 
 V. Harrold 820 a 
 
 Weigand's Appeal 417, 420 
 
 Weil V. Lehmaj-er 894 
 
 Weiland v. Townsend 510 
 
 Weir V. Tannehill 594 
 
 Weisbrod v. Chicago 678 
 
 Weisel v. Cobb 910, 917 
 
 Weisham v. Hocker 76 
 
 Weiss V. Dill 912 
 
 V. Ileitkamp 162 
 
 Welborn v. Rogers 864 
 
 Welbv V. Welby 189 
 
 Welch, In re 618 
 
 V. Allen 320 
 
 V. Brimmer 378 
 
 V. Greenhalge 783 
 
 V. Henshaw 96, 252 
 
 V. Mandeville 330 
 
 V. McGrath 195 
 
 V. Parran 238 
 
 V. Welch 647, 649 
 
 Weld V. Bonham 885 
 
 Weldon v. Riviere 646 
 
 V. Winslow 646 
 
 Welford v. Beazeley 82 
 
 V. Chancellor 178 
 
 Welhelm v. Falmer 58 
 
 Welker v. Wallace 846 
 
 Well V. Thornagh 182 
 
 Well Beloved Weeks, In re 700 
 
 Wellbeloved v. Jones 702, 732 
 
 Wellborn v. Williams 238 
 
 Weller v. Fitzhugh 433 
 
 V. Ker 508, 517 
 
 V. Weller 508 
 
 Welles V. Ely 555 
 
 V. Lewis 502 
 
 V. IMiddleton 202 
 
 V. Yates 186 
 
 Welleslev v, Beaufort 613 
 
 V. Wellesley 122, 672 
 
 Wellman v. Lawrence 602 r 
 
 Wells, In re 104, 253, 622 
 
 V. Chapman 330 
 
 V. Doane 705, 720, 724, 748 
 
 V. Foster 69 
 
 V. Francis 129 
 
 V. Heath 736, 737, 748 
 
 V. Lewis 499 
 
 V. Malbon 920, 926 
 
 V. McCall 118, 310 a, 320, 386 a, 652, 
 
 671 
 
 V. Price 636 
 
 V. Prince 856 
 
 V. Stout 672 
 
 V. Thorman 655, 660 
 
 V. Wells 602 ? 
 
 Wells-Stoue Merc. Co. v. Grover 926
 
 INDEX TO CASES CITED. 
 [References are to sectionB.] 
 
 cxliii 
 
 Welsh V. Brown 
 
 917 
 
 f. l-'oster 
 
 380, 381 
 
 V. London Ass. Co. 
 
 bh-.i 
 
 Welston r. Ilildreth 
 
 078 
 
 Welt V. Franklin 
 
 2'J'.) 
 
 Wi'lton t'. Devine 
 
 143, 144 
 
 W'emyss r. White 
 
 277, 28'J, 827 a 
 
 Wendell v. French 
 
 4U3, "JIB 
 
 Wentworth v. Read 
 
 5G8 
 
 V. Slubk'S 
 
 79 
 
 V. Tubb 
 
 480 
 
 Werborn v. Austin 
 
 800 
 
 West V. Berry 
 
 705 
 
 V. Biscoe 
 
 2'J9 
 
 V. Krissey 
 
 361, 307, 8:!4 
 
 V. Fitz 
 
 298, 312 
 
 V. Jones 
 
 419 
 
 V. Kerr 
 
 510 
 
 V. Knight 
 
 095, 099 
 
 V. Moore 
 
 17o 
 
 V. Palmer 
 
 093 
 
 V. Kay 
 
 511c 
 
 V. Raymond 
 
 202 
 
 V. Robertson 
 
 455 
 
 V. Shuttleworth 
 
 160, 701, 702, 720 
 
 V. Sloan 
 
 803 
 
 V. Smith 
 
 918 
 
 V. Snodgrass 
 
 592 
 
 V. Utica 
 
 891 
 
 V. AVest 
 
 647 
 
 Westbroke, In re 
 
 904 
 
 Westbrook v. Harbeson 
 
 220, 230 
 
 Westcott V. Cady 
 
 541 
 
 V. CuUiford 
 
 470 rt 
 
 V. Edniands 
 
 310, 311 
 
 Wester's Appeal 
 
 194 
 
 Westerfield, In re 
 
 457, 848 
 
 V. .Janssen 
 
 188 
 
 V. Kimmer 
 
 133 
 
 Western r. Cartwright 
 
 801 
 
 Western R. R. Co. v. Nolan 328, 330, 877 
 
 Westervelt v. Hoff 222 
 
 V. Matheson 187 
 
 Westgate v. Handlin 602 u 
 
 V. Monroe 680 
 
 Westley v. Clarke 410, 421 
 
 V. Williamson 891 
 
 Westmacott v. Robins 231 
 
 Westmeath v. Salisbury 072 
 
 V. Westmeath 672, 673 
 
 Weston V. Barker 98, 593, 843 
 
 Westover v. Carman 463 
 
 V. Chapman 297, 461, 408 
 
 Westvelt V. Gregg 070 
 
 Wetherbee v. Farrar 6o0 
 
 Wethered v. Safe Deposit Co. 581 
 
 Wetherell v. Collins 873, 892 
 
 V. Hamilton 75 
 
 t>. O'Hrien 837 
 
 V. Wetherell 511 c 
 
 V. Wilson 117 
 
 Wetherhed v. Wetherhed 68 
 
 Wetherill v. Hough 451 
 
 Wetmore v. Brown 918 
 
 V. Parker 43, 738 
 
 V. Porter 815 c 
 
 V. Truslow 380 a 
 
 V. Wetmore 827 n 
 
 Wetzel I'. Chaplin 98 
 
 Wevmouth v. Sawtelle . 
 Whale V. Booth 
 Whaler f. ("ox 
 Whaley v. Drummond 
 
 r. Eliot 
 
 V. Whaley 
 Whall V. Converse 
 Whalley r. Whalley 
 Whallon v. Scott 
 Wham i\ Love 
 Wharf V. Howell 
 Wharton v. Masterman 
 What ford v. Moore 
 Wiiatlev I'. Oglesby 
 Wiicate'r. Hall 
 \VlieatIey, lie 
 Wheat luy v. Badger 
 
 V. Boyd 
 
 V. Purr 
 Whcaton v. Wheaton 
 Wheeler, In re 
 
 V. Bingham 
 
 V. Bowen 
 
 V. Howell 
 
 V. Kirtland 
 
 V. Lane 
 
 V. Moore 
 
 V. Newhall 
 
 V. Perry 
 
 V. Reynolds 
 
 r. Smith 
 
 V. Stone 
 
 V. Sumner 
 
 V. Warner 
 Wheeler's Appeal 
 
 145 
 
 810, 811 
 
 571 
 
 511 
 
 18G 
 
 126, 127, 133 
 
 920 
 
 861 
 
 590, 592 
 
 900 
 
 226 
 
 399, 622 
 
 580 
 
 790 
 
 375, 498, 511 « 
 
 627 
 
 262 
 
 343 
 
 86,98 
 
 226 
 
 290 
 
 512 
 
 629, 642 
 
 570 
 
 133, 324 
 
 232 
 
 642 
 
 305 
 
 262, 455, 928 
 
 173 
 
 117, 253 
 
 602 6 
 
 593 
 
 757 
 
 273,411 
 
 Wheelock v. Am. Tract Society 699 
 
 V. IMoulton 757 
 
 Wheete v. Hale 498, 511 a 
 
 Whclan v. Palmer 511 
 
 V. Rnillv 117, 287 
 
 V. Whelan 83, 189, 201 
 
 Wheldale v. Partridge 499 
 
 Wheless v. Wheless 448 
 
 Whelpdale v. Cookson 195 
 
 Wherrv v. Hale 815 6 
 
 Whetham v. Clvde 134 
 
 Whetstone v. Sts. Bury 301, 309 
 
 I'. Whetstone's Ex'rs 863 
 
 Whichcote v. Lawrence 195, 807 
 
 V. Lvle 34, 299 
 
 Whicker v. Hume 700, 709, 741 
 
 Whipple V. Adam 115, 110 
 
 I'. Clure 189 
 
 V. Fairchild 827 a 
 
 Whistler v. Newman 658, 669, 900 
 
 V. Webb 873 
 
 Whiston V. Rochester 742 
 
 Whitall V. Clark 667 
 
 "Whitcomb v. Cardell 82 
 
 V. Jacob 835, 837 
 
 V. Minichin 195 
 
 White V. Albertson 330 
 
 V. Att.-Gen. 730, 748 
 
 V. Barton 261, 827 
 
 r. Baugh 443 
 
 V. Bavlor 311. 312 
 
 V. PriVgs 112, 113, 390 
 
 V. Brntton 113 
 
 V. Bullock 421, 918
 
 cxliv 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 White V. Callinan 679 
 
 V. Cannon 529 
 
 V. Carmarthen, &c. Ry. 752, 754 
 
 V. Carpenter 126, 132, 133, 139 
 
 V. Carter 
 
 369 
 
 V. Casanave 
 
 232 
 
 V. Commonwealth 
 
 877 
 
 V. Cook 
 
 795 
 
 V. Cuddon 
 
 770 
 
 V. Damon 
 
 183, 187 
 
 V. Ditson 
 
 281, 471, 705 
 
 V. Dougherty 
 
 237 
 
 V. Drew 
 
 127 
 
 V. Evans 
 
 94, 150 
 
 V. Ewer 
 
 855 
 
 V. Fisk 
 
 713, 720 
 
 V. Flora 
 
 187 
 
 V. Foljambe 
 
 774, 786 
 
 V. Grane 
 
 612 
 
 V. Hale 
 
 384, 730, 737 
 
 V. Hall 
 
 748 
 
 V. Hampton 
 
 38, 240, 721 
 
 V. Haynes 
 
 873 
 
 V. Hicks 
 
 509 c 
 
 V. Hildreth 
 
 678 
 
 V. Howard 
 
 393, 715, 748, 765 
 
 V. Keller 
 
 384 
 
 V. Leavitt 
 
 864 
 
 V. Lincoln 
 
 446, 821 
 
 V. McDermott 
 
 503 
 
 V. McKeon 
 
 277 
 
 V. Malcomb 
 
 602 r 
 
 V. Mass. Inst, of Technology 262, 
 
 
 401, 571 
 
 V. McNutt 
 
 660, 680 
 
 V. Montserratt 
 
 590 
 
 V. Nutts 
 
 122 
 
 V. Parker 
 
 305, 307 
 
 V. Patten 
 
 246 a 
 
 V. Rice 
 
 63 
 
 V. Ross 
 
 85 
 
 V. Selden 
 
 843 
 
 V. Sheldon 
 
 140 
 
 V. Sherman 
 
 453, 467, 471 
 
 V. Simpson 
 
 317 
 
 V. Sprague 
 
 893 
 
 V. St. Barbe 
 
 511 ffl 
 
 V. Stanfield 
 
 366, 827 6 
 
 V. Story 
 
 680 
 
 V. Stover 
 
 238 
 
 V. University 
 
 748 
 
 V. Watkins 
 
 411, 602 f 
 
 V. Weldon 
 
 137 
 
 V. White 71, 72, 82, 118, 240, 256, 277, 
 
 287, 386 a, 532, 533, 559, 564, 690, 
 
 699, 719, 727, 729, 730, 849, 863 
 
 864, 874 
 
 r. AVTiitney 602 i, 602; 
 
 V. Williams 94, 150, 232, 237, 2.'!'8 
 
 V. Wilson 248 
 
 "White's Trust, In re 250, 251, 727 
 
 White School House v. Post 244, 245 
 
 Whiteacre, ^z parte 337 
 
 Whitecar's Estate 462 
 
 Whitehead, Ex parte 619 
 
 V. Lord 864 
 
 V. Whitehead 910 
 
 Whitehom v. Hines 189, 204 
 
 Whitehouse v. Cargill 568 
 
 Whitehouse v. WTiitehouse 95, 163 
 Whitehurst v. Harper 251, 255, 639 
 
 Whiteley v. Central Trust Co. 238 
 
 V. Learoyd 458 
 
 Whitesides v. Carman 660 
 
 V. Dorris 627, 628 
 
 V. Greenlee 191 
 
 Whitfield V. Burnett 540 
 
 V. Prickett 388, 555 
 
 t'. Whitfield 617 
 
 Whiting V. Gould 84, 85 
 
 V. Whiting 112, 117, 343, 
 
 866 
 
 Whitley v. Ogle 145, 147 
 
 Whitlock V. Washburn 408 
 
 Whitlock's Case 530 
 
 Whitman's Appeal 200 
 Whitmarsh v. Robertson 826, 894, 901 
 
 Whitmore v. Turquand 593, 826 
 
 V. Weld 53 
 
 Whitney v. Fox 861 
 
 V. Krows 590 
 
 Whitridge v. Williams 545 
 
 Whittaker, In re 603 
 
 Whittemore v. Cowell 167 
 
 Whitten, Re 382 
 
 V. Whitten 143 
 
 Whittenden Mills v. Upton 757 
 
 Whittick V. Kane 218 
 
 Whittle V. Halliday 878 
 
 V. Henning 633 
 
 V. Vanderbilt M. Co. 828 
 
 Whittlesey v. Hughes 402 
 
 Whitton V. Whitten 162 
 
 Whitworth v. Carter 686 
 
 V. Davis 231 
 
 Whorwood v. University Coll. 718 
 
 Whvte V. Arthur 85 
 
 Wickes V. Clarke 628 
 
 Wickesham v. Savage 254 
 
 Wickham v. Berry 305, 526 
 
 V. New Brunswick & Canada Rail- 
 way 750 
 Wiek'liffe v. Lexington 863, 864 
 Wickman v. Robinson 231 
 Wicks V. Westcott 770 
 Widdowsen v. Duck 457, 474 
 Widgerv v. Haskell 593 
 Widmofe v. Woodrofle 255, 701 
 Widner v. Fay 918 
 Wiener v. Davis 586 
 Wier V. Simmons 873 
 Wigg V. Wigg 121, 217, 221 
 Wiggin V. Swett 556 
 
 V. Wiggin 133 
 
 Wigq;ins v. Bethune 52 
 
 Wigglesworth v. Steers 191 
 
 Wight V. Leigh 359 
 
 Wightman v. Doe 602 t, 782 
 Wightwick V. Lord 450, 551, 771 
 
 Wigram v. Buckley 223 
 
 Wigsell V. Wigseil 348 
 Wike's Case 40, 325, 633 
 
 Wilbur r. Spofford 602 h 
 
 Wilcock, Re 131 
 Wilcocks V. Hannj-ngton 96, 101, 102 
 
 Wilcox V. Calloway 239 
 
 V. Gilchrist 83, 729 
 
 I'. Kellogg 586
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 cxlv 
 
 Wilcox V. Morris 
 
 
 602 d 
 
 V. Quinby 
 
 
 275 
 
 V. Wilcox 
 
 
 312 
 
 Wild V. Wells 
 
 
 871 
 
 Wilde V. Davis 
 
 
 397 
 
 V. Gibson 
 
 
 172, 180 
 
 Wilder V. Secor 
 
 
 863 
 
 Wildennaii v. Baltimore 
 
 
 748 
 
 Wildev r. Kobinson 
 
 
 277, 848 
 
 Wilding r. Bolder 
 
 5D 
 
 277, 297 
 
 V. Richards 
 
 
 593 
 
 Wiles V. Cooper 
 
 
 888 
 
 V. Greshain 438, 440 
 
 460, 
 
 482, 847 
 
 V. Greshoa 
 
 
 185 
 
 V. Wiles 
 
 627, 
 
 628, 029 
 
 Wiley t'. Collins 
 
 
 593 
 
 V. Smith 
 
 
 359, 370 
 
 Wilhelm i'. Folmer 
 
 
 127 
 
 Wilkes V. Ferris 
 
 
 585 
 
 V. Holmes 
 
 
 5116 
 
 V. Steward 
 
 
 453, 460 
 
 1'. Wilkes 
 
 
 672 
 
 Wilkins v. Anderson 
 
 
 217 
 
 V. Frye 
 
 
 786 
 
 V. Go'rdon 
 
 
 602 ee 
 
 V. Hogg 
 
 
 417 
 
 V. Hunt 
 
 
 892 
 
 V. Stevens 
 
 
 137 
 
 Wilkinson, Ex parte 
 
 
 203 
 
 In re 
 
 
 455 
 
 V. Bewick 
 
 
 443 
 
 V. Bradtield 
 
 
 189, 226 
 
 V. Buist 
 
 
 248 
 
 V. Charlesworth 
 
 
 641 
 
 V. Cheatham 
 
 
 647 
 
 V. Duncan 
 
 
 450 
 
 r. Getty 
 
 
 248 
 
 V. Gibson 
 
 
 920 
 
 V. Lindgren 
 
 
 903 rt 
 
 V. Maliu 
 
 
 413, 725 
 
 V. May 
 
 
 520 
 
 V. Parrv 
 
 285 
 
 286, 402 
 
 V. Stafford 
 
 
 405 
 
 V. Stewart 
 
 
 243 
 
 V. Wilkinson 66, 162, 
 
 189, 
 
 388, 555 
 678, 912 
 
 V. Wright 
 
 
 682 
 
 Wilkinson's Estate 
 
 
 863 
 
 Wilks r. Fitzpatrick 
 
 
 627 
 
 !'. Groome 
 
 
 443, 446 
 
 Wilkson I". Leland 
 
 
 610 
 
 Willan V. Willan 
 
 171, 
 
 184, 189 
 
 Willard r. Eastman 
 
 
 661 
 
 r. Fenn 
 
 
 425 
 
 V. Ware 
 
 
 338 
 
 r. Willard 
 
 77,82,147 
 
 Willard's Appeal 
 
 
 119 
 
 Willats V. Busby 
 
 
 883 
 
 Willets V. WiUets 
 
 
 121 
 
 Willett V. Blanford 
 
 
 429, 430 
 
 V. Sandl'ord 
 
 
 7 
 
 Willey's Estate 
 
 
 709 
 
 William v. l\Iosher 
 
 
 918 
 
 William's Case 
 
 554, 
 
 610, 618 
 
 Estate, In re 
 
 
 787 
 
 Settlement 
 
 
 291 
 
 Williams, Kx parte 
 
 5116, 614 
 
 V. Allen 
 
 
 643, 877 
 
 ». Bailey 
 
 
 652 
 
 VOL. l.—j 
 
 
 
 Williams v. Branch Bank 
 
 910 
 
 f. Brown 
 
 126, 585 
 
 r. (,'allow 
 
 634, 637 
 
 V. Carle 
 
 213 
 
 r. Carter 
 
 375, 767 
 
 V. Chittv 
 
 34, 569 
 
 V. Clairborne 
 
 047 
 
 V. Coade 
 
 160 
 
 V. Conrad 
 
 262 
 
 V. Corbett 
 
 123, 907 
 
 V. Cork 
 
 803 
 
 V. Cushing 
 
 259, 262 
 
 i". Donaldson 
 
 660 
 
 V. First Pres. Soc. 229, 
 
 299, 312, 320, 
 
 
 860, 864 
 
 V. Fitch 
 
 182 
 
 V. Haddock 
 
 443 
 
 V. Harrington 
 
 010 
 
 t'. Haskins 
 
 103, 910 
 
 V. Headland 
 
 924 
 
 V. Ilollingworth 
 
 126, 127 
 
 t'. Jones 
 
 150, 153 
 
 V. Kershaw 159 
 
 573, 712, 748 
 
 V. King 
 
 270 
 
 V. Knight 
 
 371 
 
 V. Lewis 
 
 369 
 
 V. Lonsdale 
 
 325, 484 
 
 V. Maitlaud 
 
 421 
 
 V. ^lans 
 
 72 
 
 V. Marshall 
 
 205 
 
 V. Masscy 
 
 812 
 
 V. Mattocks 
 
 891 
 
 V. Maull 
 
 648,649 
 
 V. McConico 
 
 305 
 
 V. Moslyn 
 
 5^3 
 
 V. Munroe 
 
 782 
 
 V. Nichol 
 
 276 
 
 V. Nixon 262, 412, 417, 419, 421, 423, 
 
 424, 466 
 
 598,602^, 602 m, 621, 795 
 
 226 
 
 274 
 
 694, 721, 722, 730, 748 
 
 200, 468, 471,851 
 
 V. Otey 
 V. Owen 
 V. Parrj' 
 V. Pearson 
 V. Powell 
 V. Roberts 
 V. Salmond 
 V. Stevens 
 r. Teal 
 t'. Thorn 
 V. Van Tuyl 
 V. Vreeland 
 V. Waters 
 V. Went worth 
 I'. Williams 
 
 232, 237 
 
 885 
 
 427, 429 
 
 376 
 
 386 rt 
 
 126 
 
 104, 171, 181, 182 
 
 298, 301, 310 
 
 480 
 
 96, 112, 113, 114, 146, 
 
 147, 222, 396, 398, 443, 493, 687, 
 
 694, 709, .'28, 737, 748, 838 
 
 V. Wood 239 
 
 V. Woodward 768, 769 
 
 V. Young 234, 238 
 
 Williams's Appeal 652 
 
 Williamson v. Beckham 655. 660 
 
 V. Berry C03, 610 
 
 V. Branch Bank 225 
 
 I". Cline 653 
 
 V. Coddrington 111, 367 
 
 t'. Curtis 597, 795 
 
 V. Field 230, 763 
 
 r. Gihon 214 
 
 V. KohD 428
 
 cxlvi 
 
 INDEX TO CASES CITED. 
 [References are to sections.] 
 
 "Williamson v. Morton 25, 794, 800, 810 
 
 V. New Albany, &c. Ry. Co. 75'J, 7iiO 
 
 V. Suydam 282, 7G0 
 
 V. Wicliersliam 282 
 
 V. Williamson 462, 468, 547, 548, 
 
 651, GOO 
 
 V. "Woodard 7G8 
 
 r. Yager 82, 103 
 
 Williamson's Estate 448 
 
 Williard V. Williard 133, 134, 215 
 
 Willie V. Ellice 875 
 
 Williraan v. Holmes 300, 310, 312 
 
 Willington v. Adam 93 
 
 VVillink v. Morris Canal, &c. Co. 759 
 
 V. Vanderveer 142 
 
 Willis V. Brown 706 
 
 V. Cadenhead 677 
 
 V. Foster 823 
 
 V. Hiscox 520, 900, 901 
 
 V. Kibble 904 
 
 V. Roberts 805 
 
 V. Sharp 466 
 
 V. Smith 511 b 
 
 V. Smvth 82 
 
 V. Willis 126, 137 
 
 V. Yernegan 187, 189 
 
 Williston V. Michigan, &c. Railw. 545 
 
 Wiilmot V. Jenkins 263, 574 
 
 Willoughby V. Willoughby 218 
 
 Wills V. Cooper 347 
 
 V. Cowper 500 
 
 V. Savers 647, 649 
 
 Wills's Appeal 440, 453 
 
 Willson »;. Louisville Trust Co. 858, 865 
 
 V. Tyson 918 
 
 Wilmerding v. McKesson 469, 471 
 
 V. Russ 865 
 
 Wilmot V. Pike 438 
 
 Wilmoth V. Wilmoth 166 
 
 Wilson, In re 610, 910 
 
 V. Allen 349, 351, 354, 355 
 
 V. Anderson 104 
 
 V. Ball 113, 117 
 
 V. Bennett 339, 340, 394, 495, 503, 504 
 
 V. Brownsmith 903 a 
 
 V. Castro 126 
 
 V. Cheshire 165, 301 
 
 V. Clapham 122 
 
 V, Daniel 213 
 
 V. Davison 239, 598, 797, 798 
 
 V. Day 587, 590 
 
 V. Dennison 408, 413 
 
 V. Dent 77, 82 
 
 V. Doster 810 
 
 V. Duguid 252, 256 
 
 V. Eden 511 c 
 
 V. Edmonds 540 
 
 V. Forsyth 591 
 
 V. Goodman 848 
 
 V. Graham 237 
 
 V. Gray 590 
 
 V. Halliley 597 
 
 V. Harman 556 
 
 V. Hoare 326 
 
 V. Kenrick 571 
 
 V. Leary 920 
 
 V. Lynt 738, 748 
 
 V. McAulev 748 
 
 V. McCullo"ugh 34 
 
 Wilson V. Maddison 117 
 
 V. Major 113, 116 
 
 V. Md. Life lus. Co. 768 
 
 V. Mason 408 
 V. Moore 245, 848, 863, 875, 876 
 
 V. Mushet 672 
 
 V. Peake 472 
 
 V. Pennock 273 
 
 V. Shively 732 
 
 V. South Park Com'rs 785 
 
 V. Squire 993 a 
 
 V. Tappan 93 
 
 V. Towle 240, 287, 294 
 V. Troup 602 d, 602 g, 602 h, 602 n, 
 
 853 
 V. Turner 612 
 V. Wilson 94, 275, 282, 385, 395, 397, 
 654, 072, 673, 900, 918 
 Wilson's Appeal 910 
 Estate 68, 262 
 Wilt V. Franklin 259, 590, 593 
 Wiltbank's Appeal 545 
 Wilton V. Devine 143 
 V.Hill 654,671,826,849 
 V. Jones 873 
 Wimbish v. Montgomery Mut. Build- 
 ing «& Loan Assoc. 122 
 Winch V. Brutton 112 
 V. James 636 
 V. Keeley 345 
 V. Railway Co. 757 
 V. Winch 615 
 V. Winchester 174 
 Winchelsea v. Garrety 206 
 V. Nordcliff 458, 605, 611 
 Winchelsea's Policy Trusts, In re 848 
 Winchester v. Baltimore R. R. Co. 222 
 V. Knight 871 
 1). Machen 653 
 Winchester, &c. Turnpike C. 157 
 Winders. Diffenderffer 842 
 Winebrenner v. Colder 733 
 V. Weisiger 214 
 Wing V. Cooper 602 g 
 Winged V. Lefebury 217, 231 
 Wingfield v. Rhea 815 a 
 Wingtield's Case 701 
 Winkfield v. Brinkman 127 
 Winn V. Dillon 206 
 V. Fenwick 258 
 Winnall, Ex parte 402 
 Winona & St. P. R. Co. v. St. Paul & 
 
 S. C. R. Co. 816 a 
 
 Winslow, In re 902 
 
 V. Ancrum 600 
 
 V. Cummings 701, 724, 730, 748 
 
 V. Tighe 196 
 
 V. Trowbridge 724 
 
 Winsmith v. Winsmith 815 a 
 
 Winsor v. Mills 382, 386 
 
 Winston v. Gwathmey 174 
 
 V. Jones 766 
 
 Winter v. Anson 235, 236, 239 
 
 V. Geroe 205, 602 v 
 
 V. Rudge 291 
 
 V. W^alters 677 
 
 Wintermute r. Snyder 184 
 
 Winthrop v. Att. Gen. 287 
 
 Wintle, In re 450
 
 INDEX TO CASES CITED. 
 [References ore to sections.] 
 
 cxlvii 
 
 Wisden v. Wisden 
 Wise, Jn re 
 
 V. I'oote 
 
 V. Wise 
 Wiseman i'. Baylor 
 
 t'. Ikake 
 
 V. lioper 
 Wistar's Appeal 
 Wiswall r. liuss 
 
 r. Stewart 
 
 t'. Tick nor 
 
 511c 
 
 541, 018, 803 
 
 18'J 
 
 259 
 
 80 
 
 188 
 
 111 
 
 408, 911, 918 7* 
 
 002 e, 002 /(, 002 r, 002 bh 
 
 428 
 
 592 
 
 Wiswell V. First Cong. Church 470 a, 928 
 Witliani I'. Broouer 298, 299, 520 
 
 Withers r. Allgood 358 
 
 V. Ewing 280 
 
 V. Ilichnian 618 
 
 V. Withers 120 
 
 V. Yeaduu 38, 117, 121, 248, 251, 254, 
 
 255 
 Witherspoon, Ex parte 918 
 
 Withey v. Manjjles 257 
 
 Withington v. Withington 292 
 
 Whitman v. Lex 701, 724, 728, 731, 748 
 
 V. Norton 
 
 
 
 670 
 
 Witman's Appeal 
 
 
 
 918 
 
 W^itnier's .Appeal 
 
 
 
 462 
 
 W'itte V. Wolfe 
 
 
 
 827 rt 
 
 Wittenbrock t'. Cass 
 
 
 
 82 
 
 Witter V. Duley 
 
 
 
 203 
 
 V. Witter 
 
 17, 
 
 406, 
 
 521, 605 
 
 Witters v. Sowles 
 
 
 
 678 
 
 Wittingham v. Lighthi 
 
 pe 
 
 
 163 
 
 Witts V. lioddington 
 
 248 
 
 250 
 
 251, 258 
 
 I'. Dawkins 
 
 
 
 655, 670 
 
 V. Horney 
 
 
 
 126, 137 
 
 V. Steere 
 
 
 
 544, 545 
 
 Woddrop V. Weed 
 
 
 
 406 
 
 Woelper's Appeal 
 
 
 
 633 
 
 Woerz V. Kademacher 
 
 
 
 142 
 
 Woicott t'. Wilesy 
 
 
 
 801 
 
 Wolf V. Corley 
 
 
 
 75 
 
 t'. Eichelberger 
 
 
 
 600 
 
 V. Hill 
 
 
 
 770 
 
 Wolfe r. McDowell 
 
 
 
 602'/ 
 
 V. Washburn 
 
 
 
 438, 440 
 
 Wolff V. Van Meter 
 
 
 
 680 
 
 Wolford V. Ilewington 
 
 
 
 172, 215 
 
 W^olfort t'. lieilly 
 
 
 
 454 
 
 Wollaston r. Tribe 
 
 
 
 104 
 
 W^olley i". Jenkins 
 
 
 
 498 
 
 Wolmershauen v. Gullick 
 
 
 848, 803 
 
 Wolstoncraft v. Long 
 
 
 
 597 
 
 Womack v. Austin 
 
 
 
 847 
 
 W'omen's Cli. Ass'n v. 
 
 Campbell 
 
 727 
 
 Wood V. Abrey 
 
 
 183, 
 
 187, 192 
 
 V. Hank of Kentucky 
 
 
 237 
 
 V. IJrown 
 
 
 
 821 , 884 
 
 V. Burnhain 
 
 
 330, 
 
 359, 370 
 
 r. Uolviu 
 
 
 
 602 i 
 
 V. Cox 
 
 112, 
 
 114, 
 
 152, 153 
 
 r. Downes 
 
 200, 
 
 201 
 
 202, 827 
 
 V. Dudley 
 
 
 
 571 
 
 V. Dumnier 
 
 
 
 242 
 
 t". (iariit'tt 
 
 
 
 468 
 
 I', (iniidridge 
 
 
 
 768 
 
 V. Hardisty 
 
 
 
 200 
 
 V. Harmau 
 
 
 509, 
 
 794, 799 
 
 V. Lee 
 
 
 
 918 
 
 V. McCann 
 
 
 
 214 
 
 Wood V. iSIann 
 
 
 221 
 
 V. Mather 
 
 
 305, 010 
 
 V. Midgeley 
 
 
 84 
 
 V. i'aine 
 
 
 099 
 
 V. Perkins 
 
 
 76, 127 
 
 V. I'artridge 
 
 
 438 
 
 V. liichardson 
 
 117, 511 
 
 770, 787 
 
 V. Snow 
 
 
 002 » 
 
 V. Sparks 
 
 
 262, 499 
 
 V. Stane 
 
 
 275 
 
 V. Vanderburg 
 
 
 891 
 
 V. Wliite 
 
 498, 
 
 766, 8()2 
 
 V. Williams 
 
 
 801 
 
 V. Wood 256, 305, 391, 411, 417, 420, 
 
 400, 400 
 
 Wood's Appeal 918 
 
 Woodard v. Wright 477 
 
 Woodbridge v. Perkins 438 
 
 Woodburn v. Moslier 590 
 
 V. Woodburn 539 
 
 Woodbury v. Ubear 891 
 
 V. Woodbury 189 
 
 Woodcock V. Dorset 580 
 
 V. Kenncck 250, 258 
 
 Wooden V. Kerr 281, 917 
 
 Woodford v. Charnley 101, 102 
 
 V. Park hurst 699 
 
 V. Stevens 127 
 
 Woodgate v. Flint 317 
 
 Woodhead r. Marriott 900 
 
 W^oodliouse V. Ilaskins 359 
 
 V. Meredith 206 
 
 WoodhuU V. Longstreet 769 
 
 V. Osborne 135 
 
 Woodin, Ex parte 246, 907 
 
 Jn re 018 
 
 Woodlee y. Burch 199 
 
 Woodliffe V. Drury 101 
 
 Woodman v. Good 540, 541 
 
 V. Morrel 126, 143, 144, 146, 147, 151 
 
 V. Neal 678 
 
 Woodmeston v. Walker 652, 671 
 
 Woodroff V. Burton 183 
 
 Woodruff V. Cook 205, 218, 476 a, 928 
 
 t'. Marsh 131 
 
 I'. New York, &c. R. Co. 760, 910 
 
 V. Orange 328 
 
 V. Kobb 602 d 
 
 V. Snedecor 441, 918 
 
 V. Woodruff 277 
 
 Woodrum i'. Kirkpatrick 648 
 
 Woods t'. Axtoa 907 
 
 V. Bailey 232 
 
 V. Dille 84 
 
 V. Farmene 241 
 
 V. Stevenson 805 
 
 V. Sullivan 646, 547 
 
 V. Tombs 456 
 
 V. Williams 873 
 
 Woodside v. Hewel 137 
 
 V. Woods 113, 117, 118, 620, 880 
 
 Woodson V. aicClellaud 109 
 
 V. Perkins 600 
 
 W'oodward f. Ilalsey 511 6 
 
 t'. Jewell 790 
 
 V. Schatzell 72 
 
 r. Seaver 685 
 
 V. Stubbs 299 
 
 V. Woodward 239, 607
 
 cxlviii 
 
 INDEX TO CASES CITED. 
 {.References are to sections.] 
 
 Woodward's Appeal 458 
 
 AVoodwiiie v. \Voodrum 793 
 
 Wooldredge v. Stone 119 
 
 Wooldridge v. Planters' Bank 284, 602 m, 
 
 G21 
 
 V. Watkins 499, 500 
 
 Woolf V. Bate 330 
 
 Woollain V. Ilearne 38, 76, 226 
 
 Woollands v. Crowcher 633 
 
 Woollett V. Harris 157, 158 
 
 Woolmer's Estate 160 
 
 Woolmore v. Burrows 366, 375, 390 
 
 Woolridge v. McKenna 52 
 
 Woolsey v. Verner 592 
 
 Wooster r. Cooper 511a 
 
 Wooten V. Burch 546, 547 
 
 V. Sherrard 450 
 
 Worbass v. Armstrong 900, 918 
 
 Worcester v. Western Railway 757 
 
 Worcester Corn Exch. Co., In re 486 
 
 Wordsworth, In re 281 
 
 Work V. Brayton 239 
 World's Columbian Exposition v. 
 
 United States 705 
 
 Worley v. Frarapton 786 
 
 V. Naylor 602 r 
 
 V. Sipe 79 
 
 Wormack v. Austin 460 
 
 V. Rogers 187 
 
 Worman v. Worman 457, 511 b 
 
 Wormley, Re 189 
 
 V. Wormley 217, 221, 460, 475, 509, 
 
 593, 770, 777, 794 
 
 Worrall v. Harford 417, 894, 907, 910 
 
 V. Jacobs 672, 673 
 
 V. Marlar 636 
 
 V. Worrall 672 
 
 Worrell v. Presbyterian Church 730 
 
 Worrell's Appeal 900 
 
 Worsley v. Scarborough 222 
 
 Worth V. Arden 264 
 
 V. Curtis 606 
 
 V. McAden 262, 415, 416, 418 
 
 Wortham v. Pemberton 633 
 
 Worthington v. Evans 502, 517, 518 
 
 V. McCraer 618, 619 
 
 Worthy v. Johnson 621 
 
 Wott V. Grove 206 
 
 Wi-ae V. Seed 821 
 
 Wragg V. Comptrollor Gen. 232 
 
 Wrangham, Ex parte 743 
 
 Wray v. Steele 132 
 
 Wren v. Kirton 405, 443, 444, 463 
 
 Wrey, In re 622 
 
 V. Smith 551 
 
 Wright, In re 826, 925 
 
 V. Arnold 170, 627, 629, 630, 849 
 
 V. Atkins 112, 113, 114, 120 
 
 V. Barlow 511 ^ 
 
 V. Booth 189 
 
 V. Brown 645, 685 
 
 V. Bundy 602 d 
 
 V. Cadogan 656 
 
 V. Cain 75 
 
 V. Campbell 195 
 
 V. Chard 658, 659, 872 
 
 V. Dame 217, 232 
 
 V. Delafield 320 
 
 V. Dorchester 438 
 
 Wright V. Douglass 
 
 81, 
 
 82, 
 
 328, 520 
 
 V. Franklin Bank 
 
 
 
 437 a 
 
 V. Gay 
 
 
 
 133 
 
 V. Goff 
 
 
 
 511a 
 
 V. Henderson 
 
 
 
 602 
 
 V. King 
 
 
 
 133, 137 
 
 V. Lynn 700, 730, 748 
 
 V. Miller 98, 112, 117, 538, 546 
 
 V. Mills 206 
 
 V. Morley 633, 634 
 
 V. Pearson 305, 357, 359 
 
 V. Proud 200, 201, 204, 209 
 
 V. Rose 602/ 
 
 V. Rutter 641 
 
 V. Smith 195 
 
 V. Snowe 53, 170, 171, 849, 930 
 
 I'. Trustees Meth. Epis. Church 55, 
 
 499, 730, 748 
 
 V. Vanderplank 201 
 
 V. Wakeford 511 b, 783, 784 
 
 V. Wilkin 121 
 
 V. Wilson 187, 602 z 
 
 V. Woodland 239 
 
 V. Wright 468, 471, 511a, 652, 891, 918 
 
 Wright's Appeal 569 
 
 Trusts 922 
 
 Wrigley v. Swainson " 213 
 
 V. Sykes 802, 803, 805 
 
 Writhingham v. Burgoyne 214 
 
 Wroe V. Seed ' 900 
 
 Wyatt, In re 117, 554 
 
 V. Sharratt 825, 826, 827 
 
 Wvch V. East India Co. 858, 859 
 
 W'yckoff V. WyckoS 802 
 
 Wygal V. Bigelow 602 v 
 
 Wykham v. Wykham 305, 308, 317, 319, 
 
 511 c 540 
 
 Wylie V. Charlton ' 97 
 
 Wyman v. Babcock 226 
 
 V. Carter 500 
 
 Wyncoop v. Wyncoop 205 
 
 Wynn v. Sharer 127, 138 
 
 V. Hawkins 112 
 
 V. Humberstone 822, 823 
 
 V. Styan 856 
 
 V. Warren 453 
 
 Wynne v. Tempest 848 
 
 Wythes, In re 329 
 
 X., In re 
 
 Y. 
 
 Tader's Appeal 
 
 Yale V. Dederer 645, 
 
 Yale Gas Stove Co. v. Wilcox 
 Yallop, Ex parte 
 
 V. Halworthy 
 Yancy v. Jlanck 
 Yarborough v. West 
 Yard's Appeal 381, 
 
 Yardley v. Raub 664, 
 
 V. "Sibbs 
 Yarnall's Appeal 310 a, 316, 320, 
 
 Yarnold v. Moorhouse 
 
 603 
 
 468 
 
 660, 680 
 
 207 
 
 131 
 
 871 
 
 232 
 
 97 
 
 384, 737 
 
 665, 6G6 
 
 216 
 
 358, 361, 
 
 652 
 
 388, 555
 
 INDEX TO CASES CITED. 
 [References are to eectiona.] 
 
 cxlix 
 
 Yates V. Compton 
 
 V. Ilainbly 
 
 V. Yates 
 Yeakel v. McAtee 
 Yearance v. I'owell 
 Yeates v. Grover 
 
 V. Prior 
 Yeatman i'. Bellmain 
 
 V. Yeatman 
 Yeldell i'. (^uarles 
 Yem t'. Edwards 
 Yerby v. Lvnch 
 Yerger v. Jones 
 Yerkes v. Ferria 
 
 t'. Richards 
 Yesler v. llochstettler 
 Yoke i: Barnet 
 Yonge V. Hooper 
 Yore ('. Cook 
 York V. Brown 
 York V. E;iton 
 
 V. Mackenzie 
 
 V. North Midland Ry. Co 
 York, &c. Ry. Co. v. Myers 
 York Railway v. Hudson 
 Yorkshire Ry. Wagon Co. v. Maclure 
 You I'. Flinn 
 Youge V. Furst 
 Young, Ex parte 
 
 V, Benthuj'sen 
 
 V. Bradley 
 
 V. Brush 
 
 V. Bumpass 
 
 V. Comb 
 
 V. Com'rs 
 
 V. De Putron 
 
 V. Easley 
 
 V. Frost 
 
 V. Graff 
 
 V. Jones 
 
 V. Keogh 
 
 n. Mackall 
 
 V. Martin 
 
 V. Mutual Life Ins. Co. 
 
 V. Miles 
 
 V. Peachy 
 
 119, 308, 7C5 
 
 873 
 
 548, 551, 748 
 
 145 
 
 571 
 
 68 
 
 175 
 
 658 
 
 873 
 
 627 
 
 196 
 
 643 
 
 225, 836, 841. 842 
 
 83 
 
 437 a 
 
 678 
 
 640 
 
 195 
 
 72 
 
 432, 895 
 
 136 
 
 867 
 
 207 
 
 602 ee 
 
 904 
 
 485 
 
 299 
 
 515 
 
 918 
 
 783 
 
 312 
 
 468 
 
 180 
 
 468 
 
 727 
 
 5116 
 
 827 a 
 
 187 
 
 32, 602 f 
 
 664 
 
 610 
 
 863 
 
 112,113, 115 
 
 790 
 
 329 
 
 104, 151, 162, 201, 225 
 
 Young V. Scott 
 V. Snow 
 V. Swiggs 
 V. ^\'ale^park 
 V. Weed 
 V. Williams 
 V. Wilton 
 V. Wood 
 V. Young 
 
 386a, 
 863, 
 
 283, 499, 648, 649, 
 820 a, 856, 
 Young's Estate 
 
 Young Men's Society v. Fall River 
 Younge r. Cocker 
 
 V. Graff 
 Younger r. Welham 
 Younghusband v. Gisborne 119, 386, 
 Youse V. Martin 
 Yuudi's Appeal 
 
 920 
 769 
 806 
 466 
 238 
 568 
 237 
 655, 
 920 
 454 
 730 
 52 
 680 
 413 
 555 
 221 
 468 
 
 Zabriskie v. M. & E. R. R. Co. 
 Zacharias v, Zacharias 
 Zanjbaco v. Cassanetti 
 Zanesville C. & M. Co. r. Zanesv 
 
 Zeback v. Smith 
 
 Zehnbar v. Spillman 
 
 Zeisweiss v. James 697, 721, 
 
 Zeller v. Eckert 
 
 V. Jordan 
 Zentmyer r. Miltower 
 Zieverink r. Kemper 
 Zimmerman v. Anders 
 
 V. Barber 
 
 V. Harmon 
 
 V. Kinkle 
 
 V. Makepeace 
 Zimmerman's Will, In re 
 Zoach V. Lloyd 
 Zouch V. Parsons 
 Zundell v. Gess 
 Zwingle v. Wilkinson 
 
 .•ille 
 
 321 
 863 
 482 
 731, 
 748 
 
 499, 765 
 282 
 
 rSO, 732, 
 748 
 
 863, 864 
 171 
 232 
 223 
 
 731, 748 
 131 
 195 
 815 c 
 878 
 715 
 611 
 33 
 131 
 237
 
 LAW OF TRUSTS. 
 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 ORIGIN, HISTORY, DEFINITION, AND DIVISION OR CLASSIFICATION 
 
 OP TRUSTS. 
 
 § 1. The general nature of trusts. 
 
 § 2. The technical nature of trusts, and their origin in the Jidei commissa of 
 the Koman law. 
 
 § 3. The origin of uses. 
 
 § 4. The inconveniences that arose from the prevalence of uses. 
 
 § 5. The statute of uses. 
 
 §§ 6, 7. The effect of the statute of uses, and the origin of trusts. 
 §§ 8, 9, 10. Developments of trusts in England and America. 
 
 §11. Advantages of tlie late adoption of trusts in America. 
 
 § 12. Object of this treatise. 
 §§ 13-17. Definition of trusts. 
 
 Classification of trusts. 
 
 § 18. Simple and special trusts. 
 
 § 19. Ministerial and discretionary trusts. 
 
 § 20. A mixed trust and power, and a power annexed to a trust. 
 
 § 21. Legal and illegal trusts. 
 
 § 22. Public and private trusts. 
 
 § 23. Duration of a private trust and of a public trust. 
 
 §§ 24-27. Express trusts, implied trusts, resulting trusts, and constructive 
 
 trusts. 
 
 § 1. In the earlier states of society the rules that govern 
 the ownership, disposition, and use of property are simple 
 and of easy application. But as States increase, as property 
 accumulates, and the business and relations of life become 
 more complex, the rules of law which the new complications 
 demand become themselves complicated, and sometimes difti- 
 cult to understand and api)ly. The law, doctrine, and learn- 
 ing of trusts thus had a late origin and a slow and gradual 
 
 VOL. I. — 1 1
 
 § 2.] INTRODUCTION. [CHAP. I. 
 
 development. The word " trust," in its popular and broadest 
 sense, embraces a multitude of relations, duties, and respon- 
 sibilities. Thus, executors and administrators, guardians of 
 infants and lunatics, assignees in insolvency and bankruptcy, 
 bailees, factors, agents, commission merchants, and common 
 carriers, as well as the officers of public and private corpora- 
 tions, all exercise a kind of trust. Indeed, one definition of a 
 trustee is " a person in whom some estate, interest, or power 
 in or affecting property of any description is vested for the 
 benefit of another." This definition embraces all the trusts 
 and offices above named, but the law in relation to many, if 
 not all of them, is or may be administered in the common-law 
 courts. It is not of the law of such trusts that this treatise 
 concerns itself. 
 
 § 2. The trusts here treated are defined to be " an obliga- 
 tion upon a person arising out of a confidence reposed in him 
 to apply property faithfully and according to such confi- 
 dence." 1 Another author says that " a trust is in the nature 
 of a deposition by which a proprietor transfers to another the 
 property of the subject intrusted, not that it should remain 
 with him, but that it should be applied to certain uses for the 
 behoof of a third party." ^ Such trusts originated, and were 
 first defined and reduced to practice, under the jurisdiction of 
 courts by the civil law. It was a rule of that law that a tes- 
 tator could not name a devisee to succeed the first devisee of 
 property, but the first devisee took the absolute legal and 
 beneficial ownership of the property ; that is, a testator could 
 not direct and control the use of his property after his death. 
 This rule was modified so far that a testator might name an 
 heir to succeed, if the first heir died too young to make a 
 will, but in all other cases the testator could only rely upon 
 the good faith of the first taker of his property, to bestow the 
 use according to his directions. This trust or confidence was 
 called fidei commissum, but there were no means whereby the 
 
 ^ Stair's Institutions of the Laws of Scotland, B. IV. tit. 6, § 2, p. 591; 
 § 3, pp. 592-594. 
 
 2 Erskine's Institutes of the Laws of Scotland, B. III. p. 454. 
 9
 
 CHAP. I.] ORIGIN OF TRUSTS. [§ 3. 
 
 performance of the commission could be compelled. It was 
 called infirmum or precarium, because it depended upon the 
 personal inclination, integrity, and good faith of the person 
 trusted. There were many of these imperfect trusts, where 
 in conscience the first taker was bound to give the beneficial 
 use, or to transfer the property itself, to a third person. Such 
 third persons had an equitable, moral claim or right, but no 
 legal remedy. Under these circumstances, apj)lication was 
 made to the Emperor Augustus, and he directed the consuls 
 to interpose their authority, and compel the execution of such 
 trusts. Finally a praetor was appointed, called Jidei commis- 
 sarius^ who had jurisdiction over all Jidei commissa, and full 
 power to give adequate relief in all proper cases.^ 
 
 § 3. It is supposed that these Jidei commissa were the 
 models of uses which were afterwards introduced into England 
 by the clergy to elude and avoid the operation of the statutes 
 of mortmain. After the passing of those statutes, which were 
 intended to forbid and prevent the accumulation of the lands 
 of the kingdom in the hands of religious houses and corpora- 
 tions, it became the practice to convey lands to one person for 
 the use of another, or for the use of a corporation. Thus the 
 legal title was in one individual, but the beneficial use was in 
 another. At this time the writ of subpoena was contrived, 
 which issued out of chancery, and compelled a person who 
 held a legal title to another's use to answer in chancery, and 
 to perform and execute the use. Thus uses were introduced 
 in England to circumvent the public policy of the kingdom 
 and to avoid the statutes of mortmain, and the writ of sub- 
 poena was introduced after the model of the jurisdiction of 
 the prcetor commissarius to prevent those persons who were 
 trusted to execute a use, from committing a fraud in refusing 
 to perform it.^ These contrivances, originating in evasions 
 
 1 Ulpianus, tit. 25; Inst. Lib. IT. tit. 23, § 2; 2 Fonb. Eq. p. 2; 
 1 Cruise, Dig. p. 398; and see Willis on Trustees, pp. 1-8, and notes; 
 Bacon, Readings upon the Stat, of Uses, Vol. XIV. pp. 301, 302, Boston 
 ed. 18G1. 
 
 2 Att. Gren. r. Sands, Hard. 491. " The parents of trusts were fraud 
 and fear, and a court of conscience was the nurse.^' 
 
 3
 
 § 4.] INTRODUCTION. [CHAP. I. 
 
 of the law, -were laid hold of during the civil wars of York 
 and Lancaster to facilitate family settlements, and to prevent 
 the forfeiture of estates for treason during those unhappy 
 strifes. Thus conveyances to uses became the common form 
 of transferring land, (a) 
 
 § 4. Under this practice a very refined system grew up. 
 The legal estate was in one person, and the use and enjoy- 
 ment was in another. There were two titles and estates in 
 the same land, — that of the feoffee, who was the legal owner, 
 and yet had nothing, and that of the cestui que use, who had 
 the whole beneficial right and interest, and yet had no legal 
 right or title. He had nevertheless a substantial interest and 
 estate which he could convey, devise, and otherwise deal with, 
 as with tangible property. Great inconveniences arose from 
 this double system. Bacon's Abridgment, Uses and Trusts, 
 sums them up as follows : " By this course of putting lands 
 into uses there were many inconveniences, as this use, which 
 grew first from a reasonable cause, namely, to give men the 
 power and liberty to dispose of their own, was turned to de- 
 ceive many of their just and reasonable rights, as, namely, a 
 
 (a) In Pollock & Maitland's re- of the charter will write ad opus 
 cent History of the English Law, (Johannis) or ad usum (Johannis) 
 Vol. II., p. 226, 227, it is said: indifferently, or the fuller formula 
 "The germ of agency is hardly to ad opus et ad usum; nevertheless, 
 be distinguished from the germ of the earliest history of ' the use ' is 
 another institution which in our the early history of the phrase ad 
 English law has an eventful future opus. Kow this, both in France and 
 before it, the 'use, trust or confi- in England, we may find in very 
 dence.' In tracing its embryonic ancient days. . . . In the thirteenth 
 history, we must first notice the century we commonly find that 
 now established truth that the Eng- where there is what to our eyes is 
 lish word use when it is employed an informal agency, this term ad 
 with a technical meaning in legal opus is used to describe it. Out- 
 documents is derived not from the side the ecclesiastical sphere, there 
 Latin word usus, but from the Latin is but little talk of * procuration ; ' 
 word opus, which in old French there is no current word that is 
 becomes os or oes. True that the equivalent to our agent." See also 
 two words are in course of time I\Ir. IMaitland's article on the Origia 
 confused, so that ... the scribe of Uses in 8 Harv. L. Rev. 127. 
 4
 
 CHAP. I.] HISTORY OF TRUSTS. [§ 6. 
 
 man that had cause to sue for liis land knew not against whom 
 to bring his action nor who was the owner of it. The wife 
 ■was defrauded of her thirds, the husband of being tenant by 
 curtesy, the lord of his wardship, relief, heriot, and escheat, 
 the creditor of his extent for debt, the poor tenant of his lease ; 
 for tliese rights and duties were given by law from him that 
 was owner of the land, and none other, which was now the 
 feoffee of the trust." 
 
 § 5. Many statutes -were passed during a scries of years to 
 cure or to prevent these mischiefs or hardslii[)S. At last the 
 statute of uses, 27 Hen. VIII. c. 10, was enacted, which con- 
 verted the beneficial use into the legal ownership ; that is to 
 say, if lands were conveyed to A. to the use of B., the statute 
 executed or converted the use into a legal estate in B„ and 
 divested all title out of A. By the operation of this statute 
 the Court of Chancery lost for a time much of its business ; 
 for after the statute the legal title as well as the beneficial 
 use was in the cestui que use, and he could deal with his estate 
 as his own in every respect ; he was no longer compelled to 
 appeal to the conscience of the feoffee to uses, nor to the 
 equity powers of the court. 
 
 § 6. But there were certain gifts, grants, or estates to uses 
 which the statute did not touch, and which remained as before 
 the statute. Thus, if A. enfeoffed B. to the use of C, in trust 
 for D., the statute immediately transferred the legal estate to 
 C, and extinguished all interest in B,, but it did not touch or 
 affect the use or trust for D. It had been settled before the 
 statute, as a rule of property, that a use could not be raised 
 upon a use. At law such use raised upon a use was simply 
 void. And at law it was held that the statute extended only 
 to execute the first use by transferring the legal estate from 
 B. to C, and that all its powers were exhausted in that act, 
 and thus C. held a legal title in trust or for the use of D., 
 which the statute did not execute.^ And although C. was 
 
 1 Reid V. Gordon, 3.5 Md. 183; Croxall r. Shererd, 5 Wall. 2GS ; Mat- 
 thews V. Ward, 10 G. & J. US. 
 
 5
 
 § 7.] INTEODUCTION. [CHAP. L 
 
 bound in equity and good conscience to give to D. the use and 
 enjoyment of the estate, there was no remedy for D. at law, 
 and he could only proceed as before the statute by subpcena 
 in chancery to compel C. to perform the trust. Again, if A. 
 conveyed land to B. for a term of years for the use of C, the 
 statute did not execute the legal title in C, for it was held, 
 under the words of the statute, that it only executed the legal 
 titles of estates of which the first taker was seized^ and that 
 according to the use of the words in the law no one could be 
 said to be seized of a term of years. Thus in this last case C. 
 could have relief only by subpoena in chancery. And, again, 
 the statute did not execute the legal title to the cestui que use, 
 if the first taker was to perform any active duties in regard to 
 the estate ; as if he was to hold the same for a certain time, or 
 if he was to improve or lease the same and pay over the rents and 
 profits to the use of C, the statute left the estate where it was 
 before, and C. had no redress for any abuse of the trust or use 
 except by subpoena in chancery. And, further, the statute 
 did not apply at all to personal chattels given to one for the 
 use and benefit of another. In these four cases the parties 
 beneficially interested in the property, and equitably owning 
 the whole of it, had no remedy at law for any withholding of 
 their rights. The Court of Chancery laid hold of these four 
 instances of a want of redress at law, and by its writ of sub- 
 poena compelled the performance of these four uses under the 
 name of trusts. The legislation of our States now recognizes 
 trusts, and provisions and rules are made for their creation, 
 regulation, and duration, and in some States for their admin- 
 istration ; but they are still left to the exclusive cognizance 
 and jurisdiction of courts of equity, or to the equity powers of 
 the common-law courts. 
 
 § 7. Thus interests in land became of three kinds : first, 
 the estate in the land itself, the old common-law fee; secondly, 
 the use, which was originally a creature of equity, but after 
 the statute of uses it drew the estate in the land to itself, so 
 that the fee and use were joined and made but one legal estate, 
 not differing from the old common-law fee except in the man- 
 6
 
 CHAP. I.] HISTORY OF TRUSTS. [§ 8. 
 
 ner of its creation ; and, thirdly, the trust of which the com- 
 mon law takes no notice, but which in a court of equity carried 
 the beneficial interest and profits, and is still a creature of 
 that court, as the use was before the statute.^ The statute of 
 uses has never been repealed, and is still in force in many of 
 the United States, so that if a trust should now be created in 
 such form that the statute would have executed it if it had 
 been a use, the statute will now execute the trust by giving 
 the cestui que trust the legal title as well as the equitable 
 without any action on the part of the trustee.^ 
 
 § 8. It is thus seen that our present trusts are almost iden- 
 tical with the old uscs.^ Of course the growth of this system 
 of jurisprudence has been slow and gradual, and it has some- 
 times fallen into inconsistencies and absurdities ; but the abil- 
 ities of upright and wise chancellors, aided by a learned and 
 watchful profession, have finally given a regular and simple 
 form to the administration of trusts. Lord Chief Justice 
 Mansfield observed that in his opinion " trusts were not on a 
 true foundation until Lord Nottingham held the great seal. 
 By steadily pursuing from plain principles trusts in all their 
 consequences, and by some assistance from the legislature, a 
 noble, rational, and uniform system of law has since been 
 raised. Trusts are made to answer the exigencies of families, 
 and all other purposes, without producing one of the incon- 
 veniences, frauds, or private mischiefs which the statute of 
 Henry VIIL c. 10, was intended to avoid. The forum where 
 they are adjudged is the only difference between trusts and 
 legal estates." * During the development of this system a vast 
 number of distinctions and subtleties have been established 
 and exploded. It is not necessary to follow them, as many 
 of them never obtained a foothold in America.^ 
 
 ^ Per Lord Ilardwicke, in "Willet v. Sandford, 1 Vea. 18G ; Coryton v. 
 Helyar, 2 Cox, 342. 
 
 » Shep. Touch. 508; post, § 20G. 
 
 8 Penny v. Allen, 7 De G. M. & G. 422. 
 
 * Burgess v. Wheate, 1 Eden, 223; Philips r. Brydges, 3 Ves. 127; 
 Kemp V. Kemp, 5 Ves. 858. 
 
 ^ See them stated in Lewin on Trusts, pp. 2-17. 
 
 7
 
 § 10.] INTRODUCTION. [CIIAP. I. 
 
 § 9. Lord Nottingham became chancellor in 1673 ; conse- 
 quently, when America was first settled, the doctrine of trusts 
 had not been reduced to a system. Nor was there occasion 
 for many years to apply the doctrine to the affairs of the 
 colonists. Lands were abundant and cheap, and could be 
 had by the taking ; personal property had not accumulated ; 
 habits of life were simple and industrious ; and there was 
 little occasion for family or other settlements that rendered 
 the intervention of a trustee either convenient or necessary. 
 The statute of uses was passed before the colonists left 
 England, and it became a part of the law of many, if not 
 all the colonies. The system of trusts which grew upon the 
 statute of uses was adopted in America much later. Even 
 in England the development of the equitable jurisdiction of 
 chancery met with great opposition, upon the ground, among 
 others, that it subjected the laws of the realm to the arbitrary 
 discretion of one man, or " made the rights of the subject 
 depend upon the length of the chancellor's foot." Consider- 
 ing this opposition to the equity jurisdiction of the Court of 
 Chancery in England, considering that trusts were not estab- 
 lished upon a reasonable foundation when the colonists left 
 England, and considering the pecuniary condition of America, 
 it is not surprising that it was long before the system received 
 any countenance here. 
 
 § 10. Mr. Story says that there was no equity jurisdiction 
 in any State prior to the Revolution, or at least a very imper- 
 fect and irregular administration of it.^ There was an attempt 
 to create such a jurisdiction in the province of New York in 
 the governor and council; but it was so unpopular ^ that it 
 did little or no business. A court was established in Massa- 
 chusetts in 1692, with full equity powers ; but the act failed 
 to receive the approval of the king in council.^ In 1720 a 
 Coui't of Chancery was established in Pennsylvania, and con- 
 
 1 1 Story, Eq. Jur. § 56; 1 Dane, Ab. c. 1, art. 7, § 51; 7 id. c. 225, 
 arts. 1, 2; 2 Swift's Dig. 15; 3 Tuck. Black. App. 7. 
 
 2 1 Jolin. Ch., Preface. 
 
 3 Ancient Char. c. 222 ; 1 Story, Eq. Jur. § 5G. 
 
 8
 
 CHAP. I.] HISTORY OF TRUSTS. [§ 11. 
 
 tiiiued to administer a jurisdiction in equity in a separate 
 court until 17oG. And it is probable that some of the prin- 
 ciples of equity were administered in the common-law courts 
 of all the colonics, in order to relieve suitors from hardships 
 which the stricter rules of the common law were unable to 
 effect. In New York, New Jersey, Virginia, Pennsylvania, 
 and South Carolina, the governor of the province was clothed 
 ■with the power and duty of the chancellor.^ Since the Revo- 
 lution, equity jurisdiction as a system has been of slow growth, 
 and it is only since the beginning of this century that it has 
 received its present development in America. As property 
 has increased, and pecuniary affairs have become complex, 
 and it has become necessary or convenient to make marriage 
 settlements, or settlements upon families, children, relations, 
 or dependants, and upon charities, the English system of 
 trusts, fully grown, has been introduced into most of the 
 States, and they have conferred full equity powers either 
 upon their common-law courts, or they have established sep- 
 arate courts with an equity jurisdiction very similar to the 
 jurisdiction of the Lord Chancellor in the High Court of 
 Chancery in England.^ 
 
 § 11. Mr. Story further observes that it is a favorable 
 circumstance that jurisdiction in equity was conferred upon 
 the courts in America at so late a period, and therefore they 
 did not become acquainted with the system until it had been 
 settled upon a broad and rational foundation ; ^ thus they were 
 saved from crude and unintelligent opinions and judgments, 
 which must have been given in the then condition of the law 
 in England, and of the profession in America. These judg- 
 ments must of necessity have formed a body of precedents 
 which would have continued to plague the profession and the 
 courts, and would have marred the symmetry of the system. 
 As now established, the doctrine of equity and of trusts in 
 
 ^ See Equity in Pennsylvania, a Lecture by William II. Kawle, Esq., 
 McKay & Brother, riiiladelphia, 1SG9. 
 - 1 Story, Eq. Jur. § 50, and notes. 
 » 1 Story, Eq. Jur. § 58. 
 
 9
 
 § 13.] INTRODUCTION. [CHAP. I. 
 
 the United States is a well-formed system ; and Mr. Story 
 tliinks it even more symmetrical than the original system in 
 England. 
 
 § 12. It is not the purpose of this treatise to trace the rise 
 and growth of the law of trusts in each one of the States. It 
 is, on the other hand, its purpose to state the general prin- 
 ciples which prevail in all the States. It is not possible to 
 know or to state the legislation of so many States upon the 
 various matters connected with the administration of trusts. 
 The intelligent lawyer must do this for himself, when the 
 questions before him depend upon the statutes of his State 
 rather than upon the general principles common to all the 
 States.^ 
 
 § 13. Sir Edward Coke's definition of a use has been 
 adopted as an accurate legal description and definition of a 
 trust. In his words applied to a use, " a trust is a confidence 
 reposed in some other, not issuing out of the land, but as a 
 thing collateral, annexed in privity to the estate of the land, 
 and to the person touching the land, for which cestui que trust 
 has no remedy but by subpoena in chancery." ^ The co7ifidenee 
 here spoken of need not be expressly reposed by one party in 
 another, for the law frequently implies or construes it to arise 
 out of transactions between parties, when neither party sup- 
 posed at the time that a trust was created between them. 
 The trust or confidence is a thing distinguished from legal 
 property, or legal right to property. It is neither jus ifi re 
 nor jus ad rem^ and so the confidence may not always bo re- 
 posed by a person other than the trustee, for any person may 
 convert himself into a trustee, and give from his own acts an 
 
 1 See 4 Kent, Com. 163, and notes. See Preface to Campbell and 
 Cambreleng's Amer. Chan. Dig. (1828); 1 Fonb. Eq. 11-20, by Laussat, 
 1831 ; 1 Amer. Jurist, 314. 
 
 2 Co. Litt. 272 b. A trust exists where the legal interest is in one per- 
 son, and the equitable interest in another. Wallace v. Wainwright, 87 
 Penn. St. 263. 
 
 8 Wainewright v. Elwell, 1 Mad. 336, Bac. Uses, 5. 
 10
 
 CHAP. I.] DEFINITION OF TRUSTS. [§ l'^ 
 
 equitable right to another person, as cestui que trust. But no 
 person can be both trustee and cestui que trust at the same 
 time, for no person can sue a subpoena against liimself. 
 Therefore, if an equitable estate and a legal estate meet in the 
 same person, the trust or confidence is extinguished, for the 
 equitable estate merges in the legal estate. As when a father 
 holds the legal title to land in trust for an only child, and the 
 father dies, such legal title descends to the child as only heir, 
 and thus both estates meet in the same jjerson.^ But both 
 estates must be commensurate "with each other, otherwise 
 there can be no merger.^ 
 
 § 14. Again, a trust or confidence is something collateral 
 to the land, and not part or parcel of it. Thus a charge, an 
 incumbrance, or a term of years is a legal title in, or issuing 
 out of, the land itself, and binds every person, however he 
 may come into possession of the estate. The trust or confi- 
 dence is an incident to the land, and so far collateral that it 
 does not go inseparably with it. Thus it only charges those 
 who arc privy in the estate. If the trustee is disseized, or if 
 he is turned out of the possession by a person holding a para- 
 mount title, the disseizor is not bound by the trust or confi- 
 dence, because there is no privity of estate between a disseizor 
 and disseizee. And so there must be privity between the per- 
 sons to be bound by the trust ; as, if a trustee dies, the legal 
 estate will descend to his heir, who will be bound by the trust, 
 because there is both privity of estate and of person in such 
 
 1 Goodright v. Wells, Doug. 771 ; Selby v. Alston, 3 Ves. 339 ; Ilar- 
 •wood V. Oglander, S Ves. 127 ; Philips v. Brydges, 3 Yes. 12G ; Wade v. 
 Paget, 1 Bro. Ch. 363; 1 Cox, 70; Finch's Case, 4 Inst. 85, 3d Res.; 
 Creagh v. Blood, 3 Jo. & La. 133. So where one of the beneficiaries is 
 also trustee, to the extent of such trustee's personal interest. BoUes v. 
 State Trust Co., 27 N. J. Eq. 308. 
 
 a Philips V. Brydges, 3 Ves. 125; Robinson v. Cuming, T. Talb. IGt, 
 1 Atk. 473; Boteler v. Allington, 1 Bro. Ch. 72; Kendal r. Micfeild, 
 Barn. 47; Buchanan v. Harrison, 1 John. & Hem. 6G2 ; Habergham r. 
 Vincent, 2 Ves. Jr. 204; Merest v. James, 6 Mad. 116; Caiuiing v. 
 Hicks, 2 Ch. Cas. 187, 1 Vern. 412 ; Tabor v. Grover, 2 Vern. 367, 1 Eq. 
 Cas. Ab. 32S; Clerkson v. Bowyer, 2 Vern. 60, 193. 
 
 11
 
 § 17.] INTRODUCTION. [CHAP. I. 
 
 a case. And so if the trustee sell the estate to a purchaser 
 with full notice of the trust or confidence, or if he transfer 
 the estate to a volunteer without consideration, the estate and 
 the persons to whom it comes in such manner will be bound 
 by the trust, because there is both privity of estate and of 
 persons. But if the trustee sells the estate to a third person 
 for a valuable consideration, without notice of the trust, 
 neither the estate nor the purchaser for value and without 
 notice will be bound by the trust, for there is in such case no 
 privity between the persons.^ 
 
 § 15. All those persons who take under the trustee by oper- 
 ation of law are privies, both in estate and in person, to the 
 trustee. Thus those who take as heirs under the trustee, or 
 as tenants in dower or curtesy, or by extent of an execution,^ 
 or by an assignment in insolvency or bankruptcy, are bound 
 by the trust. It has been thought that a lord, who takes by 
 an escheat or by a title paramount, would not be bound by 
 the trust; but the point has not been adjudged.'^ 
 
 § 16. The doctrines of trusts are equally applicable to real 
 and personal estate, and the same rules will govern trusts in 
 both kinds of property. 
 
 § IT. The cestui que trust has no remedy except hy subpoena 
 in cJiancery ; that is, in some court with an equity jurisdiction, 
 adequate to decree relief.* The cestui que trust cannot main- 
 tain a real action upon his equitable title, but such action 
 
 1 Finch's Case, 4 Inst. 85, 1st Res.; Gilbert on Uses, 429. 
 
 2 Leake v. Leake, 5 Ir. Eq. 366. 
 
 3 Burgess v. Wheate, 1 Eden, 203. 
 
 4 Stuart V. Hellish, 2 Atk. 612; Allen v. Tmlett, Holt, 641 ; Holland's 
 Case, Styl. 41; Queen v. Orton, 14 Q. B. 139; Vanderstegen v. Witham 
 6 M. & W. 4.57; Bond v. Nurse, 10 Q. B. 244; Edwards v. Lowndes, 1 El 
 & Bl. 81; Drake v. Pywall, 1 H. & C. 78; Miller's Case, Freem. 283 
 Witter V. Witter, 3 P. Wms. 102 ; King v. Jenkins, 3 Dow. & R. 41 
 Edwards v. Graves, Hob. 265 ; Farrington v. Knightly, 1 P. Wms. 549 
 McCartney r. Bostwick, 32 N. Y. 33; Dorsey v. Garcey, 30 Md. 489. 
 
 12
 
 CHAP. I.] DEFINITION OF TRUSTS. [§ 17. 
 
 must be brought in the name of the trustee.^ There is, how- 
 ever, this exception, the cestui que trunt may maintain a real 
 action upon his equitable title against a stranger who shows 
 no title, or no title under the trustee.'* But the trustee may 
 successfully defend the legal title against a suit at common 
 law by the cestui que trust unless the trust has ceased, or the 
 trustee is enjoined by a court of equity .^ And so the grantee 
 of the trustee can defend such action, even though the grant 
 may be a breach of trust.* At one time the common-law 
 courts attempted to punish trustees for a breach of trust in 
 damages, as upon an implied contract,^ but the exercise of 
 such an authority was soon abandoned.^ And the rule of 
 confining the administration of trusts to the courts of equity 
 has been carried so far that the Court of King's Bench may 
 issue prohibitions, forbidding spiritual courts from inter- 
 meddling with a trust." But a bill in equity cannot be main- 
 tained simply to establish the fact of a trust, no other relief 
 being sought, even where its existence is denied ; if, however, 
 the supposed trustee is about to leave the jurisdiction, so that 
 no relief could be obtained, the court will entertain the bill, 
 
 1 Davis V. Charles River R. Co., 11 Cush. 506; Raymond v. Ilolden, 
 2 Cash. 2G8 ; Chapin v. Universalist Soc, 8 Gray, 581 ; Crane v. Crane, 
 4 Gray, 323 ; Fitzpatrick v. Fitzgerald, 13 Gray, 400 ; Baptist Soc. v. 
 Ilazen, 100 Mass. 322 ; Mordecai v. Parker, 3 Dev. 425 ; Cox v. Walker, 
 20 Maine, 504 ; Matthews v. Ward, 10 G. & J. 443 ; Beach v. Beach, 14 
 Vt. 28; Wright v. Douglass, 3 Barb. 559; Moore r. Burnet, 11 Ohio, 334; 
 Hopkins v. Ward, 6 Munf, 38 ; Daggett v. Hart, 5 Fla. 215 ; Goodtitle v. 
 Jones, 7 T. R. 47. 
 
 2 Stearns v. Palmer, 10 ^let. 35; Queen v. Abrahams, 4 Q. B. 157; 
 Roper 1-. Holland, 3 Ad. & El. 99 ; Sloper v. Cottrell, 2 Jur. n. s. 104G. 
 
 ' Obert V. Bordine, 1 Spencer, 394 ; NicoU v. Walworth, 4 Denio, 385; 
 Stearns v. Palmer, 10 Met. 35. 
 
 * Stearns v. Palmer, 10 Met. 35; Canoy v. Troutman, 7 Ired. 155; 
 Taylor i-. King, 6 Munf. 358 ; Reece v. Allen, 5 Gilm. 241. 
 
 ^ Megod's Case, Godb. 64; Jevon v. Bush, 1 Veru. 314; Smith v. 
 Jameson, 5 T. R. 603, 1 Eq. Cas. Ab. 384, D. A. 
 
 « Barnadiston v. Soame, 7 St. Trials, 443 ; Sturt v. Alellish, 2 Atk. 
 612 ; Holland's Case, Styl. 41 ; Allen v. Imlett, Holt, 14 ; Burnett v. 
 Preston, 17 Ind. 291. 
 
 ■f Petit V. Smith, 1 P. Wms. 7 ; Edwards v. Freeman. 2 P. Wms. 441 •, 
 Barker v. May, 4 M. & R. 386 ; Ex parte Jenkins, 1 B. & C. 655. 
 
 13 -
 
 § 19.] INTRODUCTION. [CHAP. I. 
 
 and declare the trust if proved, and retain the bill for further 
 action.! In Pennsylvania, ejectment is an equitable action, 
 and may be maintained by the cestui que trust, even against 
 the trustee, when the former is entitled to the possession.^ 
 
 § 18. Trusts are divided into simple and special trusts. A 
 simple trust is a simple conveyance of property to one upon 
 trust for another, without further specifications or directions. 
 In such case the law regulates the trust, and the cestui que 
 trust has the right of possession and of disposing of the prop- 
 erty, and he may call upon the trustee to execute such con- 
 veyances of the legal estate as are necessary. A special trust 
 is where special and particular duties are pointed out to be 
 performed by the trustee. In such cases he is not a mere 
 passive agent, but he has active duties to perform, as when 
 an estate is given to a person to sell, and from the proceeds 
 to pay the debts of the settlor. 
 
 § 19. Trusts have been further divided into ministerial and 
 discretionary/ trusts. A trust to do a simple act, as to con- 
 vey to the cestui que trust, at his request, is a ministerial trust, 
 as it is a mere ministerial or instrumental act requiring the 
 exercise of no judgment or discretion ; but if a choice of time, 
 manner, or place is given to the trustee, or if he must use 
 his best judgment in the execution of the trust, it is a discre- 
 tionary trust.^ Mr. Fearne contends that a trust to sell is a 
 ministerial trust, for the price is not arbitrary, nor at the 
 trustee's discretion, but is to be the best that can be ob- 
 tained ; ^ but Mr. Lewin insists that it is a discretionary trust, 
 as there is much room for judgment in the proceeding,^ and it 
 
 1 Baylies v. Payson, 5 Allen, 473 ; Price v. Minot, 107 Mass. 62. 
 
 2 Kennedy v. Fury, 1 Dall. 76 ; Presbyterian Cong. v. Johnston, 1 W. 
 & S. 56; School, &c. v. Dunkleberger, 6 Barr, 29. 
 
 8 Att. Gen. v. Gleg, 1 Atk. 356; Cole v. Wade, 16 Ves. 27; Gower v. 
 Mainwaring, 2 Ves. 87; Hibbard v. Lamb, Arab. 309; Potter v. Chap- 
 man, Arab. 98 ; Att. Gen. v. Scott, 1 Ves. 413, 4 Kent, Com. 304, 305. 
 
 * Fearne's P. W. 313. 
 
 6 Lewin on Trusts, 19; King u. Bellord, 1 Hem. & Mil. 343; Robsou 
 
 14
 
 CHAP. I.] CLASSIFICATION OF TRUSTS. [§ 21. 
 
 may be added that there is room for skill in procuring the 
 best possible price. But the distinction is not very impor- 
 tant, as the duties of a trustee for sale are the same, whether 
 the trust is called ministerial or discretionary. 
 
 § 20. There is a mixed trust and pou'er^ as where the 
 settlor sketches the outline of a trust and leaves the details 
 to be settled and carried into effect, according to the best 
 judgment of his trustees. The power joined to the trust in 
 such case is imperative and must be exercised ; but the mode 
 of its execution is a matter of judgment and discretionary. 
 But this kind of trust and power is not to be confounded 
 with a trust to ivhieh a power is annexed. In this case the 
 trust is complete in itself, and the power is a simple addition, 
 ■which may or may not be exercised, as the trustee shall 
 choose, as where lands are given to trustees for a particular 
 purpose, and a power of sale, or of changing the securities, is 
 added ; the power is no part of the trust, but it is something 
 collateral, which the court cannot compel the trustee to per- 
 form. But a trust to distribute the trust fund according to 
 the discretion of the trustee is an imperative trust and power.^ 
 
 § 21. Trusts are also said to be legal or illegal. Trusts 
 are legal when they are for some honest purpose, as to pay 
 debts or make a provision for families. They are illegal when 
 they are for purposes of immorality, or vice, or of defrauding 
 creditors, or contravene some statute, or are contrary to public 
 policy. In such case a court of equity will not give its aid in 
 carrying them into execution.^ (a) 
 
 V. Flight, 5 X. R. 344; 4 De G., J. & S. 608 ; Clarke v. Royal Panopticon, 
 4 Drew. 29. 
 
 1 Cole V. Wade, 16 Ves. 43; Gower v. Mainwaring, 2 Ves. 89; Steere 
 V. Steere, 5 John. Ch. 1. 
 
 ^ Bacon on Uses, 9; Lewis v. Nelson, 14 N. J. Eq. 94. 
 
 (a) Thus, a bill in equity for an seceding States during the Civil 
 account cannot be maintained by a "War. Snell i'. Dwight, 120 Mass. 
 partner against his co-partners as to 9; Dunham v. Presby, id. 285. 
 transactions with inhabitants of the The combinations or "trusts" 
 
 15
 
 §23.] 
 
 INTRODUCTION. 
 
 [chap. I. 
 
 § 22. Again, trusts are either public or private. Private 
 trusts concern only individuals or families, for private con- 
 venience and support. Public trusts are for public charities 
 or for the general public good. They concern the general 
 and indefinite public. 
 
 § 23. Private trusts which concern individuals are limited 
 in their duration. Being for individuals, they must be certain, 
 and the individual or individuals must be identified within a 
 limited period. They can endure only for a life or lives ^ in 
 
 1 It is immaterial whether the designated lives are thosd of the bene- 
 ficiaries or others. Crooke v. King's County, 97 N. Y. 421. 
 
 The Act of Congress of July 2, 
 1890, ch. 647 (26 Stat, at Large, 
 209), known as " The Sherman Anti- 
 
 that have sprung up in recent years, 
 for the purpose of controlling prices 
 by uniting all those engaged in any 
 great industry, are in strictness il- 
 legal as amounting to monopolies. 
 See e. g., People v. Chicago Gas 
 Trust Co., 130 111. 268 ; IMore v. 
 Bennett, 140 111. 69; Bishop v. 
 American Preservers' Co., 157 111. 
 284 ; People v. North River Sugar 
 Ref. Co., 121 N. Y. 582; Bath Gas 
 Light Co. V. Claffy, 151 N. Y. 24, 
 43; State v. Standard Oil Co., 49 
 Ohio St. 137 ; United States v. 
 Addyston Co., 78 F. R. 712 ; 24 
 Am. Law Rev. 143 ; 29 id. 293 ; 33 
 id. 63, 142 ; 30 Am. Law Reg. x. s. 
 751; 7 Harv. L. Rev. 338; 11 id. 
 80. The holder of certificates of 
 such a " trust," which bind him to 
 the terms of its formation, so far 
 participates in its illegality that he 
 cannot maintain a bill in equity 
 against its trustees for an account- 
 ing. Unckles v. Colgate, 148 N. Y. 
 529. But forfeiture of a corporate 
 charter for this cause can be en- 
 forced only by the State. Coquard 
 V. National Linseed Oil Co., 171 
 Bl. 480; Blindell v. Hagan, 54 F. 
 R. 40 ; Greer v. Stoller, 77 id. 1. 
 16 
 
 Trust Act," and entitled " An Act 
 to protect trade and commerce 
 against unlawful restraints and mo- 
 nopolies," has been held by the 
 United States Supreme Court not 
 to apply to a combination of corpo- 
 rations whose primary business is 
 that of manufacturing rather than 
 of selling, such a combination being 
 regarded as within the police power 
 of the States, and not as infringing 
 upon interstate commerce. United 
 States V. E. C Knight Co., 156 U. S. 
 1 ; s. c. 60 F. R. 306, 934; Lowen- 
 stein u. Evans, 69 F. R. 908. The 
 act is constitutional. United States 
 V. Joint Traffic Ass'n, 171 U. S. 505; 
 and applies to all contracts in re- 
 straint of interstate commerce, irre- 
 spective of their reasonableness. 
 United States v. Trans-Missouri 
 Freight Ass'n, 162 U. S. 290. The 
 remedy of a private citizen injured 
 by a violation of this statute is by 
 action at law for damages, and not 
 by a bill in equity. Southern Indi- 
 ana Express Co. v. U. S. Express 
 Co., 88 F. R. 659.
 
 CHAP. I.] CLASSIFICATION OF TKUSTS. [§ 25. 
 
 being, and twenty-one years and the period of gestation in 
 addition.' On the other hand, j)iit»lic trusts or charities, ex- 
 isting for the general and indehnite publie, may continue for 
 an indehnite period.'^ It must be kept in mind, howevur, that 
 this rule against perpetuities only applies to cases in which 
 the power of alienation is suspended, and that tlie creation of 
 a trust does not necessarily result in such suspension, for the 
 trustee may have the right to alienate,^ and that the terms 
 of the law arc not everywhere the same. For example, in 
 New York the ownership of ^;t'rso«aZ property cannot be sus- 
 pended for more than two lives, while the alienation of real 
 estate may be suspended for two lives and a minority.* 
 
 § 24, Trusts are divided in reference to their creation into 
 express trusts, implied trusts, resulting trusts, and construc- 
 tive trusts.^ Express trusts are also called direct trusts. 
 They are generally created by instruments that point out 
 directly and expressly the property, persons, and |)urposes of 
 the trust; hence they arc called direct or exj)ress trusts in 
 contradistinction from those trusts that are implied, presumed, 
 or construed by law to arise out of the transactions of parties. 
 They may be discretionary or imperative, absolute or on con- 
 dition.^ As express trusts are directly declared by the par- 
 ties, there can never be a controversy whether they exist or 
 not. In such trusts these questions arise : Are they legal or 
 illegal, and what is the construction of the various terms and 
 provisions which they contain ? 
 
 § 25. Implied trusts are trusts that the courts imply from 
 the words of an instrument, where no express trust is de- 
 
 1 Rice V. Barrett, 102 N. Y. IGl. 
 
 "^ Christ's Hospital v. Grainger, 1 Mac. & G. 4G0; Att. Gen. v. Aspi- 
 nall, 2 M. & Cr. 022; Att. Gen. v. Ileelis, 2 S. & S. 7G ; Att. Gen. v. 
 Shrewsbury, G Beav. 220; AValker v. Richardson, 2 M. & \\ . 892. See 
 Att. Gen. v. Forster, 10 Ves. 3-11; Att. Gen. v. Newcombe, 14 Ves. 1; 
 Fearon v. Webb, 11 Ves. 19. 
 
 8 Robert v. Corning, 89 N. Y. 225. 
 
 * Cook V. Lowry, 29 Ilun, 2S. 
 
 ^ See the definitions in Russell i-. Peyton, 4 Brad. (111.) 473. 
 
 • Little ('. Wilcox, 119 Teuu. St. 439. 
 
 VOL. I. —2 17;.
 
 § 27.] INTKODUCTION, [CHAP. I. 
 
 clared, but such words are used that the court infers or implies 
 that it was the purpose or intention of the parties to create a 
 trust. 
 
 § 26. Resulting trusts are trusts that the courts presume 
 to arise out of the transactions of parties, as if one man pays 
 the purchase-money for an estate, and the deed is taken in 
 the name of another. Courts presume that a trust is in- 
 tended for the person who pays the money. 
 
 § 27. A constructive trust is one that arises when a person, 
 clothed with some fiduciary character, by fraud or otherwise 
 gains some advantage to himself. Courts construe this to be 
 an advantage for the cestui que trust or a constructive trust. 
 
 18
 
 CHAP. II.] PARTIES TO TRUSTS, ETC. 
 
 CHAPTER IT. 
 
 PARTIES TO TRUSTS ; AND WHAT TROPERTY MAY RE THE 
 SUBJECT OK A TRUST. 
 
 I. §§ 28-37. "Who may create a tnist. 
 
 § 28. All persous competent to contract or make wills may create 
 
 trusts. 
 
 § 29. The king m.iy create trusts. 
 
 § 30. The State may create trusts ; and so may all its officers. 
 
 § 31. Corporations may create trusts. 
 
 § 32. The power of married women to create trusts. 
 
 § 33. Capacity ami power of infants to create trusts. 
 
 § 34. The marriage settlements of infants. 
 
 § 35. Of the ability of lunatics to create trusts. 
 
 § 36. Of conveyances in trust by aliens. 
 
 § 37. Trusts by bankrupts aud insolvents. 
 
 II. §§ 38-59. "Who may be a trustee. 
 
 § 38. A person may convert himself into a trustee. 
 
 § 39. Any person capable of taking tlie legal title may take a« 
 trustee. Rules that govern courts in appointing trustees. 
 
 § 40. The sovereign may be trustee. Question as to remedy. 
 
 § 41. Tlie United States and the several States may be trustees. 
 
 §§ 42^5. Corporations may be trustees. 
 
 § 46. Unincorporated societies may be trustees for charitable pur- 
 poses. 
 
 § 47. I'ublic officers as trustees. 
 
 §§ 48-51. Married women as trustees. 
 
 §§ 52-54. Infants as trustees. 
 
 § 55. Aliens as trustees. 
 
 § 56. Lunatics as trustees. 
 
 § 57. A religions person or nun as trustee. 
 
 § 58. A bankrupt as trustee. 
 
 § 59. Cestui que trust may be a trustee for himself aud others. 
 
 III. §§ G0-G6. Who may 1)C cestui que trust. 
 
 § CO, All persons may be cestuis que trust wlio may take tlie legal 
 
 title. 
 §§ 61, 62. Tlie Crown and the State may be cestuis que trust. 
 
 § 63. Corporations as cestuis que trust. 
 
 § G4. Aliens as cestuis que trust. 
 
 § 65. Those who cannot take a legal interest cannot take an equi- 
 
 table interest. 
 § 66. E.xcept in certain charitable trusts. 
 
 19
 
 § 30.] PARTIES TO TPwUSTS, ETC. [CHAP. II. 
 
 IV. §§ G7-72. "What property may be the subject of a trust. 
 
 § 67. A trust may be created iu every kind of valuable property. 
 
 § 68. Possil)ilities, choses in action, expectancies, aud property not 
 
 at the time /« esse may be assigned iu trust. 
 § 69. Glioses in action and expectancies that cannot be assigned in 
 
 trust. 
 §§ 71, 72. Trusts in land lying in a foreign jurisdiction, and their ad- 
 
 administration. 
 
 I. WTio may create a Trust. 
 
 § 28. It may be stated, as a general proposition, that every 
 one competent to enter into a contract, or to make a will, or 
 to deal with the legal title to property, may make such dis- 
 position of it as he pleases ; and he may annex such condi- 
 tions and limitations to the enjoyment of it as he sees fit; 
 and he may vest it in trustees for the purpose of carrying out 
 his intention. All persons, sui juris, have the same power to 
 create trusts that they have to make a disposition of their 
 property. A conveyance or disposition of property by persons 
 not sui juris is valid to the extent of their legal capacity. 
 
 § 29. The king may, by charter, grant his private property 
 to one person upon trust for another.^ But the trust must 
 appear upon the face of the patent, and cannot be proved by 
 parol.2 He can also by will in writing under the sign-manual 
 bequeath his private personal property to trustees for the use 
 of another.^ He may by warrant grant prizes taken in war to 
 trustees, to be distributed among the captors,^ and by statute 
 he is authorized to convey trust property which has escheated 
 to the Crown to trustees to execute the trust.^ 
 
 § 30. In the United States the sovereignty resides in the 
 organized people ; and all public officers are subjects and 
 
 1 Bacon on Uses, 66. 
 
 2 Fordyce v. Willis, 3 Bro. Ch. 577. 
 
 8 39 & 40 Geo. III. c. 88. But it is said that probate of his will can 
 not be granted. Williams's Ex'rs, 13. 
 
 * Alexander v. Duke of Wellington, 2 R. & M. 35 ; Stevens v. Bag- 
 well, 15 Ves. 140. But it is said that the cestui que trust cannot maintain 
 a suit against the trustees in such cases. 
 
 6 39 & 40 Geo. III. c. 88. 
 20
 
 CHAP. II.] MARRIED WOMEN. [§ 32. 
 
 citizens, and they can convey their private property to trus- 
 tees ill the same manner as {)rivate individuals. The State 
 itself by its legislation, or by its public oflicers duly authorized, 
 can create a trust, convey property, and appoint trustees ; ' 
 and such trustees are equally amenable to the jurisdiction of 
 chancery.'^ But a State cannot remove the trustees of a pri- 
 vate corporation and aj)point others in their stead.^ 
 
 § 31. All corporations, subject to the terms of the charters 
 and laws under vrhich they exist, may alienate their 
 property; and their power to appoint trustees and to declare 
 in what manner the property shall be enjoyed, is coextensive 
 with the right of alienation.* 
 
 § 32. By the civil law married women could alienate their 
 property and dispose of it by will. By the common law they 
 were almost wholly incapacitated from dealing with their 
 estates. The tendency of modern legislation is to remove 
 these disabilities, and to enable them to make contracts and 
 wills, as if they were sole, in relation to prop(n-ty held by 
 them in their own right. By joining their husbands in fines 
 and recoveries in England,^ and in deeds in America executed 
 according to the prescribed formalities, they can, as a 
 general rule, convey their property to trustees.^ In those 
 
 1 Commissioners v. Walker, 6 IIow. (Miss.) 1-13. 
 
 ^ Cotterel v. Ilampson, 2 Vern. 5 ; Buchanan i;. Hamilton, 5 Yes. 722. 
 
 ' State V. Bryce, 7 Ohio, 411 ; Dart. College i'. Woodward, 4 Wheat. 
 518. 
 
 * Colchester v. Lowten, 1 V. & B. 22G; Att. Gen. r. Aspinall, 2 :\r. & 
 Cr. Glo ; Att. Gen. v. Wilson, 1 Cr. & Ph. 1 ; Catlin v. Eagle Bank, 6 
 Conn. 23.3 ; State of IMaryland v. Bank of Maryland, 6 Gill & J. 205 ; 
 Dana v. Bank of United States, 5 W. & S. 224; Arthur v. Comm. Bank, 
 9 S. & U. 394; Barry r. Merchants' Exch. Co., 1 Sand. Ch. 2S0 ; Hopkins 
 V. Turnpike Co., 4 Humph. 403 ; Reynolds v. Stark County, .") Ham. 2(»4; 
 Angell on Corp. § l!)l ; Barings v. Dabney, 19 Wall. 1. In England, 
 municipal corporations are declared by statute to be trustees of their real 
 and personal estate, and they are debarred from alienating it without the 
 consent of the Lords of the Treasury. 5 & Wm. IV. c. 70, § 94. 
 
 6 :) & 4 Wm. IV. c. 74. 
 
 •^ Durant v. Ritchie, 4 Mason, 45. And they can make mortgages of 
 their jiroperty with powers of sale. Young r. Graff, 28 111. 20. 
 
 21
 
 § 32.] PARTIES TO TRUSTS, ETC. [CHAP. II. 
 
 States where a married woman can convey her real and 
 personal property without joining her husband, she can con- 
 vey it to trustees to such uses as she may appoint; and 
 where statutes have given her a testamentary capacity, she 
 can create trusts and appoint trustees by her will.^ A mar- 
 ried woman is considered in all respects as a feme sole in 
 regard to property settled to her separate use;^ as if real 
 estate is conveyed to a trustee and his heirs, or if personal 
 estate is assigned to a trustee and his executors, for her sole 
 and separate use, the absolute interest to be at her sole dis- 
 posal, she has the entire control, and may exercise her 
 ownership or implied power of appointment by creating a 
 trust extending even beyond her coverture.^ If she is tenant 
 for life, to her sole use, she can make a settlement of her 
 life-estate. But if the power of anticipation is restrained, 
 she can make no disposition except of the annual produce 
 which has actually accrued or become due. A married 
 woman will be treated as a feme sole only in regard to 
 property settled upon her; and her power of disposing of 
 property thus settled will be governed by a strict interpreta- 
 tion of the instrument of settlement. If the deed of settle- 
 ment points out the manner in which she may dispose of her 
 interest, she must follow that particular manner; as if the 
 power is given her to convey or appoint by deed, she cannot 
 convey or appoint by will; and if by will, she cannot convey 
 by deed. If the instrument is silent as to her power to 
 convey, she may devise the property by will.* Savings by a 
 wife out of an allowance made by her husband for her sepa- 
 rate maintenance are treated in equity as her separate estate, 
 which she may dispose of;^ and so are the accumulations 
 
 1 1 Redfield on Wills, pp. 21-28. 
 
 2 Lewin on Trusts, p. 23 (5th London ed.); Hill on Trustees, p. 421 
 (4th Amer. ed.). 
 
 3 The English rule is stated in the text. The courts in some of the 
 United States follow the same rule; in others a different rule is estab- 
 lished. All the distinctions are stated, and the authorities collected in 
 the chapter upon Trusts for Married Women. 
 
 * Mory V. IMichael, 18 Md. 227. 
 6 Brooke v. Brooke, 25 Beav. 342. 
 2?-
 
 CHAP. II.] INFANTS. [^ 33. 
 
 and savings from tlie income of a trust for her sole benefit.' 
 lint savings from [lin-money allowed by the husband for the 
 personal expenses, clothing, and adornment of the wife, 
 revert to the husband, and the wife cannot disjjosc of 
 them. 2 i^a) 
 
 § 33. Infants can create trusts which are good until they 
 are avoided.*^ The tendency of modern decisions is to hold 
 that the acts and contracts of infants are voidalile only, and 
 8ul)jcct to their election when of age either to avoid or con- 
 firm them.* Mr, Greenleaf says that " it may be safely 
 stated as the result of the American authorities, that the act 
 or contract of an infant is in no case to be held purely void, 
 unless from its nature and solemnity, as well as from the 
 operation of the instrument, it was manifestly and neces- 
 sarily prejudicial to hira. Wherever it mai/ be for his 
 benefit, it is at most but voidable; and if it be an act which 
 it was cither his duty^ to do, or was manifestly for his l)ene- 
 fit, it shall bind him."^ Eut a court of equity would not 
 allow an equitable interest to be enforced against an infant 
 to his prejudice, and would give him the same power of 
 avoidance over the equitable, as over the legal estate. And 
 if the infant died without having avoided the trust, the court 
 
 1 Story, Eq. Jur. § 1375 ; Frazier i;. Center, 1 IMcCord, Eq. 270 ; Pic- 
 quet t'. Swan, 4 Mason, 455. 
 
 2 Jodrell V. Jodrell, 9 Beav. 45; Story, Eq. Jur. § 1375 a. 
 
 ' Co. Litt. 248 a; Hearle v. Greeubank, 1 Ves. 304 ; Ownes v. Ownes, 
 
 8 C. E. Green, 60; Zouch v. Parsons, 3 Burr. 1704; Bool v. Mix, 17 
 Wend. 110; Eagle F. Ins. Co. v. Lent, G Paige, 635; Tucker v. More- 
 land, 10 Pet. 71, 2 Kent, 234 ; Gillett v. Stanley, 1 Hill, 121. 
 
 * 2 Kent, 235; Tucker v. Moreland, 10 Pet. 58, 71; Irvine r. Irvine, 
 
 9 Wall. 617. 
 
 6 Zouch V. Parsons, 3 Burr. 1704, 2 Kent, 234-236; People v. Moores, 
 4 Denio, 518; IMcCall v. Parker, 13 Met. 372. 
 
 ' 4 Cruise, Dig. by Greenleaf, p. 15, note, and authorities cited ; Eagle 
 Fire Co. v. Lent, 1 Edw. Ch. 301 ; 6 Paige, 635. 
 
 (a) The English Married Wo- phernalia. Tasker v. Ta.sker, 
 men's Property Act of 1S82 did not [1805] P. 1. See 30 Am. Law Rev. 
 have the effect of abolishing the 557. 
 common-law rule as to gifts of para- 
 
 23
 
 § 34] PAKTIES TO TRUSTS, ETC. [CHAP. II. 
 
 will still investigate the transaction and see that no unfair 
 advantage was taken. ^ But if the infant is still alive, no 
 one but himself can object to his deed.^ 
 
 § 34. The effect of a marriage settlement by a female 
 infant, bj which her real and personal estate is conveyed to 
 trustees, has been frequently mooted in courts. It has been 
 decided that as infants may contract marriage, a settlement 
 made by the consent of their parents and guardians in con- 
 sideration of a marriage to be afterwards solemnized, should 
 be binding, inasmuch as if the marriage afterwards takes 
 place, the situation of the parties is altered, and the interests 
 of third persons, or children born of the marriage, may be 
 affected. Lord Macclesfield and Lord Hardwicke upon these 
 considerations refused to disturb such settlements.'^ But 
 Lord Thurlow dissented from these opinions;* and the law 
 is now settled, that a deed, executed by a female infant in 
 consideration of marriage, does not bind her real estate, 
 unless, having come of age, she assents to it after the death 
 of her husband.^ There is no reason why the marriage 
 settlement of a male infant should not be governed by the 
 same rule, except that he could confirm the same after he 
 became of age, and before the death of his wife. The settle- 
 ment will bind the husband if he is of full age.^ It has been 
 
 1 Le-win on Trusts, p. 25 ; 4 Cruise, Dig. p. 130 ; Starr v. Wright, 20 
 Ohio St. 97. 
 
 2 Ingraham v. Baldwin, 12 Barb. 9, 19. 
 
 8 Cannel v. Buckle, 2 P. Wms. 243; Harvey v. Ashley, 3 Atk. 607; 
 Tabb V. Archer, 3 Hen. & M. 399 ; Healy v. Rowan, 5 Gratt. 414 ; Lester 
 V. Frazer, Riley, Ch. 76 ; 2 Hill, Ch. 529. 
 
 * Durnford v. Lane, 1 Bro. Ch. 106. 
 
 5 ]\lilner v. Lord Harewood, IS Ves. 259; Trollope v. Linton, 1 Sim. 
 & Stu. 477 ; Simson v. Jones, 2 Russ. & My. 365 ; Temple v. Hawley, 1 
 Sand. Ch. 153; Dominick v. Michael, 4 Sand. 374; Levering v. Levering, 
 3 Md. Ch. 365; Shaw v. Boyd, 5 S. & R. 312; Wilson v. McCullogh, 19 
 Pa. St. 77; Healy i;. Rowan, 5 Gratt. 414; In re Waring, 12 Eng. L. 
 & Eq. 351 ; Cave v. Cave, 15 Beav. 227, 19 Eng. L. & Eq. 280 ; Field v. 
 Moore, 7 De G., M. & G. 691 ; 35 Eng. L. & Eq. 498 ; Lee v. Stuart, 2 
 Leigh, 76. 
 
 6 Whichcote v. Lyle's Ex'rs, 28 Pa. St. 73 ; Levering v. Heighe, 2 Md. 
 Ch. 81. 
 
 24
 
 CHAI'. II.] LUNATICS. [ 
 
 settled, however, after considerable conflict, that a female 
 infant may bar herself of dower and of a distributive share 
 in her husband's estate, by accepting a jointure before mar- 
 riage.^ And she may, before marriage, make a binding 
 settlement of her personal estate, fur such a settlement will 
 be for her benefit, otherwise it would vest in the husband, 
 and it would in effect be his scttlcnient and not hcrs;^ but 
 such settlement is not good of chattels that would not go to 
 the husl)and. It is now settled in England by statute that a 
 male infant over twenty years of age and a female over 
 seventeen may make a valid marriage settlement of their 
 real and personal estates, under the sanction of the Court of 
 Chancery.^ 
 
 § 35. It was a maxim of the common law, that no man of 
 full age could be allowed to stultify himself ; hence the acts, 
 deeds, and feoffments of idiots and lunatics were held to be 
 binding, and not voidable by the jjarty himself, though they 
 could be avoided by his heirs, executors, or administrators.* 
 This maxim never prevailed in the United States, and is 
 not now the law of England. The conveyance of a lunatic 
 is not, however, absolutely void, but only voidable by him- 
 self as well as by his friends and representatives.^ But after 
 inquisition declaring him incompetent, all contracts made 
 
 1 Drury r. Drury, 2 Eden, ■]D ; Buckinghamshire v. Drury, 2 Eden, CO- 
 75 ; aicCartee v. Teller, 2 Paige, 511. 
 
 2 Duniford r. Lane, 1 Bro. Ch. Ill ; Levering v. Levering, 3 ]\Id. Ch. 
 305; Field v. Moore, 7 De G., M. & G. 691; Ainslie v. .Aledycott, 
 9 Ves. 19; Stamper v. Barker, 5 Mad. 134; Williams v. Chitty, 3 Ves. 
 551 ; Johnson t-. Smith, 1 Ves. 315; Simson v. Jones, 2 Russ. & My. 
 305 ; Succession of Wilder, 22 La. An. 219. 
 
 8 18 & 19 Vict. c. 13. 1S55. See Edwardsr. Carter, [1893] A. C. 360. 
 
 * Co. Litt. 247 b. 
 
 ^ Allis V. Billings, 6 Met. 415; Breckenridge i;. Ormsby, 1 J.J. Marsh. 
 2-19 ; Price v. Barrington, 3 IMac. & G. 480 ; Moulton v. C'aniroux, 2 
 Exch. 487; 4 Exch. 17; Milner v. Turner, 4 Monr. 245; Ballcw v. Clark, 
 2 Ired. 23 ; Ovving's Case, 1 Bland. 370; Elliot v. Ince, 7 De G.. M. & 
 G. 488 ; Campbell v. Hooper. 3 Sm. & Giff. 153; Wait r. Maxwell, 5 
 Pick 217; Mitchell v. Kingman, id. 431 ; Snowdeu v. Dunlavey, 11 Penu. 
 St. 522. 
 
 25
 
 § 37.] PARTIES TO TRUSTS, ETC. [CIIAP. II. 
 
 by him, until restored to the control of his property, are 
 void.^ It follows that a conveyance by a lunatic upon a trust 
 will be good until it is avoided, and a court of equity would 
 not set it aside, if it was fair and reasonable,^ and if the 
 parties could not be restored to their original condition; nor 
 would the court interfere against bona fide purchasers with- 
 out notice of the lunacy.^ 
 
 § 36. An alien may take real estate by devise or purchase, 
 though he cannot take by operation of law, as by descent, or 
 as tenant by curtesy. If an alien takes land by purchase, 
 he may hold it until office found ; and if he conveys it in 
 trust or otherwise, his grantee will hold it until office found. 
 An alien can therefore create a trust of real estate only until 
 the State interposes. An alien may exercise all rights of 
 ownership over personal property, consequently he can create 
 a valid trust in it.* 
 
 § 37. By the bankrupt law of England all the property 
 which the bankrupt is entitled to up to the date of the 
 certificate of his discharge vests in his assignees;^ and he 
 can create no trust in it, except in the surplus that may 
 remain after the payment of all his debts. ^ Under the 
 bankrupt laws of the United States and the insolvent laws of 
 the various States, only the interests of the bankrupt exist- 
 ing at the date of the assignments vest in his assignees ; ^ he 
 may, therefore, create a valid trust in property acquired 
 after the assignment and before the certificate. 
 
 1 L'Amoureux v. Crosby, 2 Paige, 422; Pearl v. McDowell, 3 J. J. 
 Marsh. G5S. 
 
 2 Niell V. Morley, 9 Ves. 478 ; Story, Eq. Jur. § 228. 
 
 3 Carr v. Ilalliday, 1 Dev. & Batt. 344 ; Price v. Berrington, 3 Mac. & 
 G. 486 ; Greenslade r. Dare, 20 Beav. 285. 
 
 * 2 Kent, pp. 1-36 ; Lewin on Trusts, p. 25 ; Hill on Trustees, p. 47. 
 ■» 12 & 13 Vict. c. 106, §§ 141, 142. 
 
 * Lewin on Trusts, p. 26 ; Hill on Trustees, p. 47. 
 
 ' In Matter of Grant, 2 Story, 312 ; Mosby v. Steele, 7 Ala. 299 ; Ex 
 parte Newhall, 2 Story, 360. 
 
 26
 
 CHAP. II.] WHO MAY BE TRUSTEE. [§ 38. 
 
 11. Who may he a Trustee. 
 
 § 38. It is a rule that admits of no exception, that cfpiily 
 never wants a trustee, or, in other words, that if a trust is 
 once pro))crly created, the incompetency, disal)ility, death, 
 or non-appuintment of a trustee siiall not defeat it.* Thus, 
 if property has been bequeathed in trust, and no trustee, or 
 a trustee disabled from tal<in<r, or one who is dead, or refuses 
 to take, is ai){)ointcd, the court will decree the execution of 
 the trust by the ])ersonal representatives, if it is j^ersonal 
 property, and by the heirs or devisees, if it is real estate.^ 
 Property once charged with a valid trust will be followed in 
 equity into whosesoever hands it comes, and he will be 
 charged with the execution of the trust, unless he is a pur- 
 chaser for value, and without notice.^ The holder of the 
 legal title and the absolute interest in property may convert 
 himself into a trustee by making a valid declaration of trust 
 upon good consideration;* or if he conveyed the j)roperty by 
 some conveyance which was inoperative in law, equity would 
 hold him to be a trustee;^ as if a man convey projjcrty 
 
 1 Co. Litt. 200 b, 113 a, Butler's note (1) ; Ptory, Eq. Jur. §§ 98, 976; 
 McCartee v. Orph. Asy. Soc, 9 Cow. 4;>7 ; Crocheron c. Jaques, 3 Edw. 
 207 ; Buiuly v. Bundy, 28 N. Y. 410; Dodkin v. Brunt, L. R. G Eq. 580. 
 
 2 Piatt V. Yattier, 9 Pet. 405 ; Gibbs v. Marsh, 2 Met. 243 ; Withers v. 
 Teadon, 1 Rich. Eq. 325; King v. Donnelly, 5 Paige, 46; Dawson v. Daw- 
 son, Rice, Eq. 243 ; Cushncy v. Henry, 4 Paige, 345; De Barante v. Gott, 
 6 Barb. 492 ; IMalin v. Malin, 1 Wend. 625; Mclutire v. Zanesville C. & 
 M. Co., 9 Ham. 203; Kerr v. Day, 14 Pa. St. 114; Att. Gen. v. Down- 
 ing, Amb. 550; Bennet v. Davis, 2 P. Wins. 316 ; Sonlcy v. Clocknialcers' 
 Co., 1 Bro. Ch. 81 ; Treat's App., 30 Conn. 43 ; White v. Hampton, 13 
 Iowa, 259. 
 
 8 Ibid.; Shepherd v. McEvers, 4 John. Ch. 136. 
 
 * See notes to Woollam v. Ilearne, 2 Lead. Cas. Eq. 404 ; ^lackreth r. 
 Simmons, 1 Lead. Cas. Eq. 235; Adams v. Adams, 21 Wall. 1S6. 
 
 5 McKay v. Carrington, 1 McLean, 50 ; Kerr v. Day, 14 Penn. St. 114 ; 
 Crawford v. Bertholf , Saxt. Ch. 458 ; Malin v. Malin, 1 Wend. 625 ; Ty- 
 son V. Passmore, 2 Barr, 122; Ten Eick v. Simpson, 1 Sand. Ch. 244; 
 Waddington r. Banks, 1 Brock. 97 ; Atcherley v. Yemen, 10 Mod. 518; 
 Davie r. Beardsham, 1 Ch. Cas. 39 ; (Jreeii v. Smith, 1 Atk. 572 ; I'ollex- 
 fen V. Moore, 3 Atk. 272; Wall v. Bright, 1 J. & W. 474. 
 
 27
 
 § 39.] PARTIES TO TRUSTS, ETC. [CHAP. 11. 
 
 directly to his wife, a transaction inoperative in most of the 
 States, equity would uphold the act, and decree the husband 
 to be a trustee.^ 
 
 § 39. It may be stated, in general terms, that whoever is 
 capable of taking the legal title or beneficial interest in 
 property, may take the same in trust for others. ^ Whatever 
 persons or corporations are capable of having the legal title 
 or beneficial interest cast upon them by gift, grant, bequest, 
 descent, or operation of law, may take the same subject to a 
 trust, and they will become trustees. But it docs not follow 
 that whoever is capable of taking in trust, is capable of per- 
 forming or executing it. The inquiry, then, is not so much 
 who may take in trust, as it is who may execute and perform 
 a trust. Sometimes the law provides against the appoint- 
 ment of non-residents as trustees.^ If a trust is cast upon a 
 person incapable of taking and executing it, courts of equity 
 will execute the trust by decree, or they will appoint some 
 person capable of performing the requirements of the trust. 
 Mr. Lewin says that "in general terms, a person to be 
 appointed trustee should be a person capable of taking and 
 holding the legal estate, and possessed of natural capacity 
 and legal ability to execute the trust, and domiciled within 
 the jurisdiction of the court. "^ Sir George J. Turner, L. J., 
 laid down the general rules which govern courts in making 
 appointments of trustees as follows : — 
 
 "First, the court will have regard to the wishes of the 
 persons by whom the trust has been created, if expressed in 
 the instrument creating the trust or clearly to be collected 
 from it. I think this rule may be safely laid down, because 
 if the author of the trust has in terms declared that a par- 
 ticular person, or a person filling a particular character, 
 
 1 Huntly y. Huntly, 8 Ired. Eq. 250; Livingston v. Livingston, 2 John. 
 Ch. 537 ; Garner v. Garner, 1 Busb. Eq. 1. 
 
 2 Fonb. Eq. 139, n. ; Hill on Ti-ustees, 4S ; Commissioners r. Walker, 
 6 How. (Miss.) 146. 
 
 3 Rinker v. Bissell, 90 Ind. 375 ; Meikel v. Greene, 94 Ind. 344. 
 * Lew in on Trusts, 27. 
 
 28
 
 CHAI'. II.] KING. [§ 40. 
 
 should nut be trustee of the instrument, there cannot, as I 
 apprehend, be the least doubt that the court would not 
 appoint to the ofTice a person whose appointment was so 
 prohibited; and I do not think that upon a question of this 
 description any distinction can be drawn between express 
 declaration and demonstrated intention. The analogy of the 
 course which the court pursues in the appointment of guar- 
 dians affords, I think, some support to this rule. The court 
 in those cases attends to the wishes of the jjurents, however 
 infunnally they may be expressed. 
 
 •■'Another rule which may, 1 think, safely be laid down, 
 is this, — that the court will not appoint a person to be 
 trustee with a view to the interest of some of the persons 
 interested under the trust, in opposition either to the wishes 
 of the testator, or to the interests of other of the cestuis que 
 trust. I think so for this reason, that it is of the essence of 
 the duty of every trustee to hold an even hand between the 
 parties interested in the trust. Every trustee is in duty 
 bound to look after the interests of all, and not of any 
 particular member or class of members of his cestuis que 
 trust. 
 
 "A third rule which may be safely laid down is that the 
 court, in appointing a trustee, will have regard to the 
 question whether his aj^pointmcnt will promote or impede 
 the execution of the trust; for the very purpose of the 
 appointment is that the trust may be better carried into 
 execution." ^ 
 
 § 40. The sovereign may sustain the character of a 
 trustee. He has a legal capacity to take and hold the 
 estate, and to execute the trust ;2 but there is a difliculty in 
 every country in executing the judgments and decrees of a 
 court against th^ sovereign power of the country. In Eng- 
 land, it is said that the Court of Chancery has no jui-isdic- 
 tion over the king's conscience, for the Lord Chancellor 
 only exercises the equitable authority of the king himself in 
 
 1 In re Tempest, L. 11. 1 Ch. 487. 
 ^ Lewin oii Trusts, 27. 
 
 29
 
 § 41.] PARTIES TO TRUSTS, ETC. [CIIAP. II. 
 
 judging between his subjects. But the greater difficulty is 
 in enforcing the decrees of a court against the sovereign 
 power ; for " the arms of equity are very short against the 
 prerogative."^ The subject may have a clear right, but no 
 remedy either at law or equity against the Crown ; in such 
 case liis only resource is an appeal to the king by a petition 
 of right, and it cannot be supposed that he would be refused. 
 The question is now of less importance; for by statute, if 
 trust property vests in the Crown by escheat, the king is 
 enabled to grant it to trustees for the purpose of executing 
 the trust. 2 And by an amendment it is further provided 
 that property held in trust shall not escheat or be forfeited 
 to the Crown by the failure or forfeiture of the trustee ;2 and 
 it is still further provided, that in such cases trust property 
 shall be under the control of the Court of Chancery for the 
 use of the parties beneficially interested, and that new 
 trustees shall be appointed.^ Under these statutes it is said 
 that an equity will be enforced against the Crown. ^ The 
 only cases where the question is still open, whether a trust 
 can be enforced against the Crown, is where the person of 
 the sovereign takes by descent as heir, or by representation, 
 or where he may have held as trustee previously to his 
 acquiring the crown, or where a grant or bequest is made to 
 him as a trustee.^ 
 
 § 41. The United States, and each one of the separate 
 States, may sustain the character of trustee. They have 
 legal capacities to take and execute trusts for every pur- 
 
 1 Pawlett V. Att. Gen., Hard. 467 ; Burgess v. Wbeate, 1 Eden, 255; 
 Kildare v. Eustace, 1 Yern. 439 ; Wike's Case, Lane, 54 ; Penn. v. Lord 
 Baltimore, 1 Yes. 453; Pteeve i'. Att. Gen., 2 Atk. 224; Ilovenden v. Lord 
 Anuesley, 2 Scli. & L. 617 ; Hodge v. Att. Gen., 3 Yo. & Col. 342 ; Briggs 
 V. Liglit-boats, 11 Allen (Mass.), 157, ■where all the authorities are com- 
 mented on. 
 
 2 39 & 40 Geo. IH. c. 88. 
 8 4 & 5 Wm. lY. 23. 
 
 * 13 & 14 Yict. c. 60, §§ 15, 46, 47. 
 6 Hughes V. Wells, 9 Hare, 749 ; 13 Eng. L. & Eq. 389. 
 6 Hill ou Trustees, 50. 
 ' 30
 
 CIIAI'. II.] CORPORATIONS. [§ 41. 
 
 posc.^(a) But a court caunot execute its jud;Tmonts and 
 decrees against a sovereign State with any more eiTect than 
 the courts of Enirland can enforce their orders against the 
 king. The arms of equity in America arc as sliort against 
 the sovereign power as they are in England against the pre- 
 rogative. Mr, Justice Gray has clearly shown that a State 
 cannot he sued in law or equity against its consent, or 
 unless there is some general or special statute authorizing 
 the suit.2 A subject may have a clear right, but no remedy; 
 in such case he must petition the legislative power, and 
 there is no reason to suppose that his right would be refused. 
 If a State accepts a trust by grant or bequest, it must act 
 through its legislative powers in administering the trust, or 
 in creating and appointing agents or officers to perform the 
 duties which it assumes ; as the United States acted in rela- 
 tion to the bequest of James Smithson in trust for the estab- 
 lishment of the Smithsonian Institution for the increase and 
 diffusion of knowledge among men.^ A limitation over of 
 a charitable devise to the States of Maryland and Louisiana 
 in case of forfeiture by the first takers was held not to vitiate 
 the bequest.* 
 
 ^ See Mitford v. Reynolds, 1 Phill. 185 ; Xightingale v. Gouldbourn, 2 
 Phill. 504 ; 5 Hare, iSi. It was denied, however, that the United States 
 could take in trust in Levy v. Levy, 33 N. Y. 97 ; Shoemaker v. Comm'rs, 
 36 Ind. 176. 
 
 " Bii2:gs i\ Light-boats, 11 Allen, 157. 
 
 « U. S. Stat. 1836, c. 252, Vol. V. p. 64 (L. & Bro. ed.) ; also, Stat. 
 184G, c. 178, Vol. IX. p. 102. 
 
 * WcDonogh's Ex'rs v. Murdoch, 15 How. 367. 
 
 (a) A public corporation maybe such a.s the erection of wharves or 
 a trustee. A State is a trustee of the other aids to connnerce. Shively v. 
 rights of its people in navigable Bowlby, 152 U. S. 1. 
 waters. Allen v. Allen, 19 R. I. Public officers, such as State 
 114. Tide lands in a Territory are commissioners, authorized to super- 
 held in trust by the general govern- intend the building of a State- 
 ment for the future State, but the house, are not properly tru.stees. but 
 United States may grant them to State agents. In re New State- 
 individuals for appropriate purposes, house (11. I.), 37 Atl. 2. 
 
 31
 
 § 43.] PARTIES TO TRUSTS, ETC. [CIIAP. II, 
 
 '." § 42. ]t was formci'ly laid down that corporations could 
 not be seized of lands to the use of anotlier, and could not 
 be trustees.^ The reason assigned for this rule was that no 
 trust or confidence could be reposed in them ; that they 
 could not be compelled to execute a use or perform a trust, 
 for courts of equity, in decreeing the execution of a trust, 
 lay hold upon the conscience ;2 and it is impossible to attach 
 any demand upon the conscience of a body so artificially 
 created that it cannot in the nature of things have a con- 
 science. Again, it was said that they could not be impris- 
 oned if they refuse to obey the decrees of the court. But the 
 technical rules upon which it was held that corporations could 
 not be trustees have ceased to operate ; and at the present 
 day corporations of every description may take and hold 
 estates, as trustees, for purposes not foreign to tiie purposes 
 of their own existence ; and they may be compelled by courts 
 of equity to carry the trusts into execution,^ If they misapply 
 the trust fund, or refuse to obey the decrees of the court, the 
 proper remedy is by distringas, sequestration, or injunction, 
 or by removal and appointment of new trustees.* 
 
 § 43, It must be understood, however, that corporations are 
 the creatures of the law, and that as a general rule they can- 
 not exercise powers not given to them by their charters or 
 acts of incorporation.^ For this reason they cannot act as 
 
 1 Bacon on Uses, 57; 1 Cruise, Dig. p. 340. 
 
 2 Sugd. V. & P. p. 417. 
 
 3 Att. Gen. v. St. John's Hosp., 2 De G., J. & Sm. 621 ; Att. Gen. v. 
 Landerfield, 9 Mod. 280 ; Dummer v. Chippenham, 14 Ves. 252 ; Green 
 V. Rutherforth, 1 Ves. 468; Att. Gen. v. Whorwood, 1 Ves. 530 ; Att. 
 Gen. V. Stafford, Barn. 33; Att. Gen. v. Found. Hosp. 2 Ves. Jr. 40; Att. 
 Geu. V. Clarendon, 17 Ves. 499 ; Att. Gen. v. Caius College, 2 Keen, 105 ; 
 Att. Gen. v. Ironmongers' Co., 2 Beav. 313; Jackson y. Hart well, 8. Johns. 
 422; Trustees Phillips Academy v. King, 12 Mass. 546 ; Att. Gen. v. 
 Utica Ins. Co., 2 Johns. Ch. 3^1; Vidal r. Girard, 2 How. 187 ; Millers. 
 Lerch, 1 Wall. Jr. 210 ; Columbia Bridge Co. v. Kline, Bright, N. P. 320; 
 Greenville Acad., 7 Rich. Eq. 476 ; McDonogh v. Murdoch, 15 How. 367; 
 Green v. Dennis, 6 Cow. 304 ; Dublin Case, 38 N. H. 577. 
 
 4 flavor of Coventry v. Att Gen., 7 Bro. P. C. 235 ; 3 Mad. Ch, 77, 209. 
 
 5 In Matter of Howe, 1 Paige, 214. 
 
 32
 
 CHAP. II.] CORPORATIONS. [§ 43. 
 
 trustees in a matter in wliicli they have no interest, or in a 
 matter that is inconsistent with, or repugnant to, the purposes 
 for wiiich they were created.^ Nor can they act as trustees if 
 they are forbidden to take and hold lands, as by the statutes 
 of mortmain, nor if they arc not empowered to take the prop- 
 erty. But if the trusts are within the general scojje of the 
 purposes of the institution of the corporation, or if they are 
 collateral to its general purposes, but germane to them, as if 
 the trusts relate to matters which will promote and aid the 
 general jiurposes of the corporation, it may take and hold, 
 and be compelled to execute them,^ if it accepts them. Thus 
 towns, cities, and parishes may take and hold proi)erty in 
 trust for the establishment of colleges,^ for the purpose of 
 educating the poor,* for the relief of the poor, though not 
 pau[)ers, by furnishing them fuel at a low price,^ and for the 
 sui)port of schools,® or for any educational or charitable pur- 
 poses within the scope of its charter^ So also overseers of 
 the poor, supervisors of a county,^ commissioners of roads in 
 South Carolina,^ trustees of the poor in Mississippi, and also 
 trustees of the school fund,^'' are corporations sub modo ; and 
 they may take and execute trusts within the scope of their 
 official duties (a). 
 
 ^ In flatter of Howe, 1 Paige, 214; Jackson v. Ilartwell, 8 Johns. 422. 
 
 2 Story, J., Vidal v. Girard, 2 How. 188-190 ; McDonogh v. Murdoch, 
 15 How. 3G7 ; First Cong. Soc. of Southington i'. Atwater, 23 Conn. 34 ; 
 Wetmore i'. Parker, 7 Laiis. 121. 
 
 * Vidal V. Girard, ut supra. But see Perin v. McMicken, 15 La. An. 
 154. 
 
 * McDonogh v. ^lurdoch, ut supra. 
 
 ^ Webb I'. Xeal, 5 Allen, 575 ; Mclntire Poor School v. Zanesville 
 Canal Co., 9 Ohio, 217. 
 
 6 First Parish in Sutton v. Cole, 3 Pick. 232. 
 ' Rariium r. Baltimore. 02 Md. 275. 
 
 * North IIerap.stead i;. Hempstead, 2 Wend. 109 ; Jansen v. Ostrander, 
 1 Cow. 670. 
 
 » Com. Roads v. McPher.son, 1 Spear, 218. 
 
 10 Governor v. Gridley, Walk. 328 ; Carmichael v. Trustees, &c., 3 How. 
 (Miss.) 84. 
 
 (a) A municipal corporation may sistent with its organization. See 
 be a tnistet", at loast of charities con- Sargent i'. Cornish, 54 X. H. 18; 
 VOL. I. — 3 33
 
 §44] 
 
 PARTIES TO TRUSTS, ETC. 
 
 [chap. II. 
 
 § 44. A bank may receive a deed, and hold land in trust 
 to receive a debt due to it.^ (a) One corporation may take 
 and bold in trust for another, or for a stranger,^ or for an indi- 
 vidual ; as where one gave a legacy to a church corporation 
 in trust to pay the income to his housekeeper for life, and 
 after her death to apply it to church purposes, it was held 
 tiiat the corporation might well execute the trust, on the 
 principle that when ])roperty is given to a corporation partly 
 for its own use and partly for the use of another, the power 
 of the corporation to take and hold for its own use carries 
 Avith it, as a necessary incident, the power to execute that 
 part of the trust which relates to others.^ The supervisors 
 of a county cannot take in trust for a town or village or 
 
 1 Morris v. Way, 16 Ohio, 478. 
 
 ^ Phillips Academy v. King, 12 Mass. 546. 
 
 8 In Matter of Howe, 1 Paige, 214. 
 
 Dailey v. New Haven, 60 Conn. 314; 
 14 L. R. Ann. 09, and note; Ilig- 
 ginson v. Turner, 171 Mass. 586 ; 
 Ayer v. Bangor, 85 Maine, 511; 
 Ilandley v. Palmer, 91 F. R. 948. 
 So swamp lands may be received by 
 a county in trust for the public 
 schools, and in such case they can- 
 not be sold on execution as the 
 property of the county. Stone v. 
 Perkins, 85 F. R. 616. 
 
 (o) A bank does not become a 
 tnistee by issuing a draft upon 
 another bank at the request of a 
 depositor who pays therefor by his 
 own check. Jewett v. Yardley, 81 
 F. R. 020. But when one bank 
 sends a note to another bank for 
 collection, and it is collected by the 
 latter, or when an indorser pays a 
 note at a bank, which retains pos- 
 session of the note, but does not 
 apply the payment thereto, the funds 
 so paid have, in some cases, been 
 regarded as held in trust, though 
 mingled with other money, and as 
 
 34 
 
 recoverable in full if the collecting 
 bank becomes insolvent. See j\Ias- 
 sey V. Fisher, 62 F. R. 958 ; People 
 V. Rochester, 96 N. Y. 32 ; Cavin v. 
 Gleason, 105 N. Y. 256, 263 ; Irwin 
 V. Reeves Pulley Co., 20 Ind. App. 
 101 ; German Nat. Bank v. Burns, 
 12 Col. 539 ; Manufacturers' Nat. 
 Bank v. Swift, 70 Md. 515; Capital 
 Nat. Bank v. Coldwater Nat. Bank, 
 49 Neb. 786 ; State Nat. Bank v. 
 Thomas ^lanuf . Co. (Texas), 42 S. W. 
 1016 ; Mechem on Agency, § 514 ; 
 1 Ames on Trusts (2d ed.), 18, 43; 
 infra, § 122, n. 
 
 The relation of safe-deposit com- 
 panies to those who hire boxes from 
 them, and have keys thereto, is that 
 of bailment, and not one of trust or 
 tenancy. Roberts v. Stuyvesant, 
 S. D. Co., 123 N. Y. 57. Property 
 so deposited cannot be reached by 
 trustee process, but may, it seems, 
 be directly attached or reached 
 through a court of equity. See 
 9 Harv. L. Rev. 131, 135.
 
 CHAP. II.] COUPORATIONS. [§ 45. 
 
 for individuals, but only for the body which they represent.^ 
 "Whether a particular corporation can hold as trustee for any 
 specific purpose must generally be determined by the con- 
 struction of its charter and of the laws of the State in whicii 
 it acts.2 
 
 § 45. If a corporation takes land by grant or bequest in 
 trust or otherwise, which by its charter it cannot hold, its 
 title is good as against third persons and strangers ; the State 
 only can interfere.^ A corporation cannot be compelled to 
 execute a trust in property, the legal title to which it has 
 no power to take and hold ; * l)ut the trust, if otherwise valid, 
 is not for that reason void, and the court will appoint a com- 
 petent trustee, and direct a conveyance of the property to 
 him ; as where a testator gave land to a corporation that could 
 not take by reason of the statute of mortmain, in trust to 
 sell and apply the proceeds to persons competent to take, it 
 was held that though the devise was void at law, yet in equity 
 it was a valid trust, and that the heir was a trustee to the 
 uses declared in the will.^ 
 
 ^ Jackson v. Ilartwell, S Johns. 422. 
 
 •^ Dartmouth Coll. i'. Woodward, 4 Wheat. 636; Head v. Providence 
 Ins. Co., 2 Cranch, 127 ; State v. Stebbins, 1 Stew. 299 ; Beaty t'. Knowler, 
 4 Pet. 152 ; Beaty v. Marine Ins. Co., 2 Johns. 109 ; People r. Utica Ins. 
 Co., 15 Johns. 358 ; New York Fire Ins. Co. v. Ely, 2 Cow. 67S; State r. 
 IMayor of Mobile, 5 Porter, 279. 
 
 * liunyan v. Coster's Lessee, 14 Pet. 122 ; Miller v. Lerch, 1 Wall. Jr. 
 210; Leazure v. Hillegas, 7 S. & R. 321; Perin v. Cary, 24 How. 465; 
 Chapin v. School Dist., 35 N. H. 445; Troy v. Haskell, 33 N. H. 533; 
 Philadelphia v. Girard, 45 Penn. St. 9; Humbert v. Trinity Church, 24 
 Wend. 5S7; Ilarpending r. Dutch Church, 16 Pet. 492; Bogardus r. Trin- 
 ity Church, 4 Sand. Cli. 758; Angell v. Ames, Corp. §§ 151-155. 
 
 * Sonley v. Clockmaker's Co., 1 Bro. Ch. 81 ; Vidal v. Girard, 2 How. 
 188. 
 
 * Ibid. ; Winslow r. Cummings, 3 Cush. 358. This is denied to be the 
 law in the courts of New York, in relation to charitable bequests. See 
 Ayres v. Methodist Church, 3 Sand. 351 ; Andrew t'. Bible Soc. 4 Sand. 
 150 ; Levy v. Levy, 40 Barb. 5'^5 ; 33 X. Y. 07. These oases are governed by 
 a statute, as is said, and would not probably be followed outside of that 
 State ; nor are they fully concurred in by their own courts, as there was a 
 strong dissent in the Court of Appeals, the couj't of last resort. 
 
 35
 
 § 47.] PARTIES TO TRUSTS, ETC. [CHAP. II. 
 
 § 46. Grants or gifts to an unincorporated association in 
 trust for a charitable purpose are sustained in equity, as a 
 lei^acy to the Seamen's Aid Society, to go to their treasurer 
 for the time being for the purposes of such society ; ^ a be- 
 quest over to several unincorporated societies, some of them 
 not in the State, was held good,^ and if the members are too 
 numerous to administer the trust, the court will appoint a 
 trustee.^ So a bequest to " The Marine Bible Society," for 
 certain purposes, was held to establish a charitable trust, 
 although the society was a voluntary association, and had 
 been disbanded, and the court appointed a trustee to carry 
 the trust into effect.* In Pennsylvania, substantially the 
 same doctrine has been held.^ A different doctrine was held 
 in the Supreme Court of the United States; ^ but the case 
 was decided upon the law of Virginia, and may be consid- 
 ered as settling a local rather than a general question.'^ 
 The later cases in the same court hold the general rule to be 
 otherwise.^ 
 
 § 47. A trust to a board of officers in their official capacity 
 for purposes within the scope of their official duties may be 
 executed by them.^ Where a bequest was to the chancellor 
 of the State of New York, the mayor and recorder of the 
 city of New York, and several other persons by their official 
 description only, and their successors in office, to build and 
 
 ^ Tucker v. Seamen's Aid Soc, 7 Met. 188; First Cong. Soc. of South- 
 ington V. Atwater, 23 Conn. 56. 
 
 2 Burbank v. Whitney, 24 Pick. 146; Washburn v. Sewall, 9 Met. 280. 
 But see Methodist Church v. Remmington, 1 Watts, 218. 
 
 3 Burbank v. Whitney, 24 Pick. 140 ; Wasliburn v. Sewall, 9 Met. 280. 
 But see ^Methodist Church v. Remmington, 1 Watts, 218. 
 
 * Winslow V. Cummings, 3 Cusli. 358. 
 
 5 Pickering v. Shotwell, 10 Barr, 27; and see the able opinion of Bald- 
 win, J , in Jlagill V. Brown, Bright, X. P. 350. See also Methodist 
 Chur''li V. Remmington, 1 Watts, 218. 
 
 ® Baptist Asso. v. Ilart, 4 Wheat. 1; Inglis v. Sailors' Snug Harbor, 
 3 Pet. in. 
 
 ' Baldwin, J., in I^.Iagill v. Brown, Bright, X. P. 354. 
 
 8 Yidal V. Girard, 2 How. 187. See chapter on Charitable Trusts,joos^ 
 
 9 A nte, § 30. 
 
 06
 
 CHAP. II.] UNINCORPORATED SOCIETIES. [^ 47. 
 
 maintain a hospital, and if this could not be done legally, 
 they were to apply for an act of incorporation, and at all 
 events the estate should be held by an heir charged with the 
 trusts, it was held that the designation of the trustees by 
 their olliciul character was equivalent to naming them by their 
 proper names ; that the trust was ncjt to be executed by them 
 in their oflicial character, but in their private and individual 
 capacity ; and that if the trust had been to the oflicers named 
 and their successors to execute, and no other provisions had 
 been made, it would have fallen within the case of Baptist 
 Association v. Hart's Executors, and would have been void. 
 It was further held that it was a good executory devise to a 
 corporation to be created in futuro, and in the mean time 
 that the estates in the hands of the heir would be held charged 
 with the trusts.^ A bequest to the chancellor of the Ex- 
 chequer for the time being for the benefit of Great Britain 
 was held good;^ and the Governor-General of India may take 
 in trust for the benefit of the city of Decca.^ Where a British 
 subject bequeathed funds to the President and Vice-President 
 of the United States and the Governor of Pennsylvania for 
 the time being, to establish a college in the State of Penn- 
 sylvania, and directed tiiat moral philosophy should be taught, 
 and that a professor should inculcate the rights of the black 
 peoj)le of every clime, until they were restored to an equality 
 of riglits throughout the Union, the Court of Chancery 
 directed an inquiry to be made whether the President, Vice- 
 President, and Governor would accept the trust, and it 
 appearing that they declined to act, it was held that the trust 
 failed ; and as it could not be carried into effect, c// jyres, in 
 a foreign country, that the gift fell into the residue.* A bank 
 comptroller is a trustee of the various securities held by him 
 for the several banks ; but the State itself is not liable as a 
 trustee for his acts.^ 
 
 ^ Inglis V. Trustees of the Sailors' Snug Harbor, 3 Pet. 99. 
 
 2 Nightingale v. Goulbourn, 2 Phill. 59i ; 5 Hare, 484. 
 
 8 Mitford r. R.-ynolds. 1 Phill. 185. 
 
 ♦ New V. lionaker. L. R. 1 Eq. 655. 
 
 B State V. Bush, 20 Wis. 212. 
 
 37
 
 § 48.] PAETIES TO TllUSTS, ETC. [CHAP. II. 
 
 § 48. Married women may become trustees by deed, gift, 
 bequest, appointment, or by operation of law/ If an estate 
 comes to a married woman in any way, charged with a trust, her 
 coverture cannot be pleaded in bar of the trust ; ^ and a court 
 of equity will enforce its execution ; as when the legal title 
 to land in trust was cast by descent upon a married woman, 
 and the law required that a deed executed by her should be 
 acknowledged, as executed voluntarily, and she refused so to 
 acknowledge it, the court compelled her by decree.^ But spe- 
 cific performance will not be enforced against a feme covert 
 trustee for sale upon her contract as trustee to convey.* 
 There is no less judgment and discretion in a woman after 
 marriage than before. Sir John Trevor thought she rather 
 improved by her husband's teaching.^ The reasons for her 
 disabilities are founded upon her own interests, or her hus- 
 band's, or both ; *^ or rather upon the broader policy of the 
 law which, for the purpose of domestic peace and happiness, 
 merges the proprietary interests of the wife during coverture 
 in her husband, and will not permit her to hold interests 
 separate from, and independent of, and possil)ly antagonistic 
 to him. The policy of the law has, however, been very much 
 modified by legislation in later years. But where such inter- 
 ests are not concerned, she possesses the same legal capacity 
 as if she were sui juris. Thus, she may execute any kind of 
 power, whether simply collateral, appendant, or in gross ; and it 
 is immaterial whether it is given to her while sole or married.'^ 
 
 1 Lake v. De Lambert, 4 Ves. 595; Compton v, Collinson, 2 Bro. Ch. 
 377; Hearle v. Greenbank, 1 Ves. 305; Bell v. Hyde, Pr. Ch. 350; Moore 
 V. Hussey, Hob. 95 ; Needles v. Bish. of Winchester, Hob. 225 ; Clarke v. 
 Saxon, 1 Hill, Ch. 69 ; Bradish v. Gibbs, 3 Johns. Ch. 523; Livingston v. 
 Livingston, 2 id. 541; Dundas v. Biddle, 2 Barr, 160 ; Claussen v. La Franz, 
 1 Clarke (La.), 226 ; Harden v. Darwin & Pulley, 6G Ala. 55. 
 
 2 Clarke v. Saxon, 1 Hill, Ch. 69 ; Berry v. Norris, 1 Duv. 302. 
 8 Dundas v. Biddle, 2 Barr, 160. 
 
 * Berry v. Norris, 1 Duv. 302 ; Avery v. Griffin, L. R. 6 Eq. 606. 
 6 Bell V. Hyde, Pr. Ch. 350. 
 
 * Compton V. Collinson, 2 Bro. Ch. 377. 
 
 ' Co. Litt. 112 a, 187 b; JiOrd Antrim v. Buckingham, 2 Freeman, 
 168; Blithe's Case, id. 91; Godolphin v. Godolphin, 1 Ves. 23; Sugden on 
 
 38
 
 CHAP. II.] MARRIED WOMEN. [§ 50. 
 
 § 49. Ill equity, the absolute interest in the trust fund is 
 vested in the cestui que truat, the trustee is a mere instru- 
 ment, and any power or autlioi-ity in the trustee must have 
 the character of a j)()\ver simply collateral ;^ therefore thei'c is 
 notliinir, as resj)ects lej^al capacity, to j)revx'nt a married woman 
 from administering a discretionary ti'ust.- But she cannot 
 create a trust in her absolute property except by joining licr 
 husband in conveying it, or in executing a declaration of trust.'' 
 
 § oO. At the same time a husband must always have a large 
 influence over a /erne covert trustee; indeed, as he would be 
 answerable for her acts, and liable for her breaches of trust, 
 he must, for his own protection, look to the manner in which 
 she administers the fund ; and she must join her husband in 
 suits in relation to the trust property.* Again, if land is 
 conveyed to a married woman upon a declared trust without 
 powers of sale, and it becomes necessary to sell and convey 
 the land, is the husband to join or not in the conveyance ; and 
 to whom is the })urchase-money to be })aid, and upon whose 
 receipt?^ Mr. Lewin thinks that the joint receijjt of the hus- 
 band and wife should be taken ; but that the safest way would 
 be to })ay the money into some bank ui)on their joint receipt, 
 to remain until wanted for the purposes of the trust, and that 
 if the husband took it out for any other purpose, he would be 
 liable as for a breach of trust.^ Another inconvenience arises 
 in probate and other trusts, Avhere the trustee may be required 
 to give bonds for the faithful administration of the trust. A 
 court of equity may require the trustee to give security for 
 the property, even though the trust arises by operation of 
 
 Powers, 144-155; 4 Kent, 324; Thompson i'. Murray, 2 Hill, Ch. 214; 
 Bradish v. Gibbs, 3 Johns. Ch. .523. 
 
 1 Smith ?•. Smith. 21 Beav. 385 ; Drummond r. Tracy, 1 Johns. 608 ; 
 Kin,o:hani v. Lee, 15 Sim. 401 ; People v. Webster. 10 Wend. 5.54. 
 
 2 Ibid. « Graham v. Long, 05 Penn. St. 383. 
 4 Still V. Ruby, 35 Penn. St. 373. 
 
 6 See Daniel v. Uhley, "NVm. Jones, 137; Co. Litt. 112 a, Hargrave's 
 note (6); 1 Fonb. Eq. 92; McXeille v. Acton, 2 Eq. R. 25. 
 
 ^ Lewin on Trusts, 24, 25; Drummond v. Tracy, 1 Johns. 611; 4 Cruise, 
 Dig. 143; Co. Litt. 112 a, Hargrave'a note (6). 
 
 39
 
 § 51.] PARTIES TO TRUSTS, ETC. [CIIAP. II. 
 
 law.^ A married woman can enter into contracts only in 
 relation to her sole and separate estate ; and how far she can 
 bind herself, or her estate, by a bond to execute a trust in 
 property, the beneficial interests in which belong to another, 
 would always be a perplexing question, although the sureties 
 in such a bond might be liable. 
 
 § 51. Subject to these inconveniences, a married woman 
 can always be a trustee ; and she may even be a trustee for 
 her husband j'-^ (a) as well as her husband for her,^ and courts 
 will find means to enforce the trusts ; but they will not appoint 
 married women to such offices, nor will they appoint them to 
 be guardians of minors ; * a woman, on the contrary, will be 
 removed from the office if she is appointed while sole and 
 afterwards marries.^ For the same reason it is undesirable 
 to appoint a feme sole trustee; for should she marry, her hus- 
 band, being liable for her breaches of trust, ought to have 
 control of her acts, and the character of the trust is changed. 
 On these grounds the courts at one time refused to appoint 
 a, feme sole trustee;^ but it is a matter of sound discretion 
 in the court, and in a more recent case a feme sole was 
 appointed.^ 
 
 1 Clarke v. Saxon, 1 Hill, Ch. 69. 
 
 2 Livingston v. Livingston, 2 Johns. Ch. 541. 
 
 8 Benuet v. Davis, 2 P. Wins. 316; Shirley v. Shirley, 9 Paige, 36.3; 
 Jamison v. Brady, 6 S. & R. 467; Boykin v. Ciples, 2 Hill, Ch. 200; Pic- 
 quet V. Swan, 4 Mason, 455 ; Griffith v. Griffith, 5 B. Monr. 113. 
 
 * Re Kaye, L. R. 1 Ch. 387. In Massachusetts, by statute, a married 
 "woman may be executrix, administratrix, guardian, or trustee, and may 
 bind herself and the estate, without her husband joining, with the same 
 effect as if she were sole ; and a woman may continue to hold the trust to 
 which she has been appointed, notwithstanding her subsequent marriage. 
 
 ^ Lake v. De Lambert, 4 Ves. 595. The trustee in this case had mar- 
 ried a foreigner, but Lord Chancellor Loughborough simply remarked "that 
 it was very inconvenient for a married woman to be trustee." 
 
 ^ Brooks V. Brooks, 1 Beav. 531. 
 
 ' Re Campbell's Trusts, 31 Beav. 176. 
 
 (a) See Schluter v. Bowery S. Banks, 117 N. Y. 125 ; infra, § 277, 
 and note. 
 
 40
 
 CHAT. II. ] INFAXT8. [§ 52. 
 
 § 52. Infants labor under still greater disabilities than 
 married women, for a married wuman lias judgment, discre- 
 tion, and capacity, though she cannot in all cases freely exer- 
 cise them ; but an infant wants judgment and capacity.^ From 
 this want of judgment and capacity an infant can do n<jthing 
 that requires the exercise of discretion. It is true that his 
 acts are voidable only and not void;^ but every act, not 
 simply ministerial, is at least voidable ; but where he signs 
 an acquittance without receipt of the money, it is an exercise 
 of discretion, and is actually void.^ An infant is capable of 
 executing a naked power unaccompanied with any interest, 
 or not requiring any discretion.* If a power is given to an 
 infant relating to his own estate, it must be inserted in the 
 deed that he may execute it during his infancy, or his exe- 
 cuti(Mi of it will have no effect.^ As was shown before, 
 trustees generally exercise powers over the trust fund simply 
 collateral ; ^ but if the exercise of these pcnvers requires the 
 application of any prudence or discretion, an infant is inca- 
 l)ablc of executing them.^ (a) 
 
 ^ Ilearle v. Greenbank, 3 Atk. 712 ; 1 Yes. 305 ; Grange v. Tiving, 
 Bridg. O. 108; Compton v. CoUinson, 2 Bro. Ch. 377; Sookett v. Wray, 
 4 Bro. Ch. 486. See Co. Litt. 3 b, 128 a, 88 b, 172 a, 2G1 b, Ilargiave's 
 note (4) ; 1 Watk. on Copyh. 24 ; Eddleston v. Collins, 3 De G., M. & G. 1 ; 
 Toller's Ex'rs, 31 ; Halliburton v. Leslie, 2 Hog. 252. 
 
 2 Ante, § 33; Lewiii on Trusts, 32. 
 
 » Russell's Case, 5 Rep. 27 a; Co. Litt. 172 a, 2Gi b; 1 Roll. Ab. 730, 
 F. 2 ; Cropster v. Griffith, 2 Bland, 5. 
 
 * 4 Kent, 321. 
 
 6 Coventry v. Coventry, 2 P. A\'ms. 229 ; 1 Sug. on Powers, 213-220 
 (6th ed.). 
 
 6 Ante, § 14. 
 
 ' King V. Bellord, 1 Hem. & M. 343 ; Hearle v. Greenbank, 3 Atlc 695 ; 
 1 Ves. 298 ; Grange v. Tiving, Bridg. O. 109. 
 
 (u) In re D'Angibau, 15 Ch. 1). the decree after he comes of age. 
 
 228, 233 ; Levin v. Ritz, 41 N. Y. S. ]McClellan v. McClellan, 65 :\Iaine, 
 
 405. An infant trustee, who pos- 500; co/t/ra, when tlje infant is sim- 
 
 sesses an interest in the trust estate, ply a trustee, although the trust 
 
 and also holds the legal title, is en- arises by implication of law. Walsh 
 
 titled to a day to show cause against v. Walsh, 110 Mass. 377. See ^lel- 
 
 41
 
 § 54.] PARTIES TO TRUSTS, ETC. [CHAP. II. 
 
 § 53. From these inconveniences and incapacities attend- 
 ing the administration of a trust by an infant, he never would 
 be appointed by a court to such an office. He could not give 
 a valid security or bond for the safety of the trust fund, nor 
 could a court decree him to make satisfaction for a breach of 
 the trust. ^ But an infant has no privilege to cheat, ^ and he 
 will not be protected in cunning and contrived frauds.^ 
 
 § 54. But an infant may still be a trustee; he may be 
 actually named as trustee in any instrument, and the estate 
 will pass to him; and if such an appointment is made, he 
 cannot set up any claim to the beneficial interest in the 
 estate;^ but a court of equity would direct the execution of 
 
 1 Whitmore v. Weld, 1 Yern. 328 ; Russell's Case, 5 Rep. 27 a ; Hind- 
 marsh V. Southgate, 3 Russ. 324. 
 
 2 Evroy v. Xicholas, 2 Eq. Cas. Ab. 489. 
 
 8 Cory V. Gertcken, 2 Mad. 40 ; Buckingham v. Drury, 2 Eden, 71, 72; 
 Clare v. Bedford, 13 Vin. 536 ; Watts v. Cresswell, 9 Vin. 415 ; Beckett v. 
 Cordley, 1 Bro. Ch. 358 ; Savage v. Foster, 9 Mod. 37 ; Overton v. Banis- 
 ter, 3 Hare, 503 ; Stikeraan v. Dawson, 1 De G. & Sin. 503 ; Wright v. 
 Snows, 2 De G. & Sm. 321 ; Davis v. Hodgson, 25 Beav. 177 ; Hillyer v. 
 Bennett, 3 Edw. Ch. 544 ; Hill v. Anderson, 5 S. & M. 216. 
 
 ^ King V. Denison, 1 Ves. & B. 275; Jevon v. Bush, 1 Vern. 343; Lake 
 V. De Lambert, 4 Ves. 596, n. 
 
 lor r. Porter, 25 Ch. D. 158; Younge ecute a proper conveyance to the 
 V. Cocker, 32 W. R. 359 ; Gray v. plaintiffs to be settled by the Judge 
 Bell, 40 L. T. 521; Perry v. Perry, in case the parties differ," and giv- 
 65 Maine, 399; Smith y. McDonald, ing them a day to show cause — 
 42 Cal. 484 ; Davidson v. Bowden, was approved. The infant himself 
 5 Sneed, 129; Hurt v. Long, 90 should be made a party to a bill 
 Tenn. 445 ; Simmons v. Baynard, affecting his title to real estate. 
 30F. R. 532. In Mellor r. Porter, Tucker v. Beau, 65 IMaine, 352; 
 25 Ch. D. 158, upon a review of Wakefield r. Marr, id. 311. 
 the authorities, it was held that a In the Federal Courts the citizen- 
 direction to convey when the infant ship of a minor, who sues by his 
 is twenty-one years of age would guardian, determines the Court's 
 not warrant declaring him a trustee jurisdiction, contrary to the case of 
 before that age; and in the case of a cestui que trust. Dodd v. Ghiselin, 
 an equitable mortgage, the follow- 27 F. R. 405; Wiggins v. Bethinie, 
 ing form of direction in the decree 29 id. 51 ; see Re INIcClean, 20 id. 49; 
 — that " the infant defendants Woolridge v. McKeuna, 8 id. 650. 
 upon their attaining twenty-one ex- 
 42
 
 CHAP. II.] ALIENS AS TRUSTEES. [§ 55. 
 
 the trust by himself or guardian,* or would remove him and 
 appoint some one competent to act. So an estate charged 
 with a trust may be cast upon an infant by descent, or by 
 operation of law ; as where a father bought and paid for 
 land, but took the conveyance in the name of a son five years 
 old, the court held that the land in the hands of the son was 
 charged with a resulting trust for the father. ^ In another 
 case, where the father had purchased land in the name of an 
 infant son, it was presumed to have been an advancement, 
 rather than to make the infant a trustee. ^ From the great 
 inconvenience attending the appointment of an infant as 
 trustee, a strong presumption arises that property conveyed 
 to an infant is intended for his benefit, as an advancement 
 or otherwise, and the court will not infer an intention that 
 he is to take it in trust, unless it distinctly appears.^ 
 
 § 55. Aliens can take and hold real estate by grant in 
 trust to the same extent as they can take and hold the legal 
 title ; ^ that is, until office found ; though it is said that they 
 cannot take by act of law as by descent.^ There is a con- 
 flict of decisions, whether they can take by devise or not.^ 
 
 1 Ex parte Sergison, 4 Ves. 149, and n. ; In Matter of Fallen, 1 Mc- 
 Carter, 147. 
 
 2 Binion v. Stone, 2 Freem. 1G9. See Bowra v. Wright, 4 De G. & Sm. 
 265. 
 
 8 Lamplugh v. Laraplugh. 1 P. Wins 112; Matter of Rindle, 2 Edw. 585. 
 
 * Ibid.; Bliiikhorne v. Feast, 2 Ves. 30; Mumnia r. Mumma, 2 Vern. 19; 
 Taylor v. Taylor, 1 Atk. 086; Smith v. King, 16 East, 283. See also Grey 
 V. Grey, Finch, 338 ; 1 Ch.Cas. 296 ; Elliott v. Elliott, 2 id. 231 ; Ebrand v. 
 Dancer, id. 26 ; Scroope v. Scroope, 1 Ch. Cas. 27; Stileman v. Ashdown, 
 2 Atk. 480 ; Pole r. Pole, 1 Ves. 76. 
 
 6 Attte, § 36; Marshall i-. Lovelass, Cam. & Nor. 217. 
 
 Orr V. Hodgson, 4 \\'heat. 4.'j3; Wright v. Trust Meth. Ep. Church, 
 1 Hoff. Ch. 202 ; Buchanan v. Deshon, 1 liar. & G. 280 ; Ex parte Du- 
 pont, 1 Harp. Ch. 5; Trembles v. Harrison, 1 B. Monr. 140; Montgom- 
 ery V. Dorion, 7N. H. 475; Foss v. Crisp, 20 Pick. 121 ; Smith r. Zaner, 
 4 Ala. 99. 
 
 ' In Craig v. Radford, 3 Wheat. 594 ; Atkins v. Kron, 2 Ired. Ch. 58, 
 it was hold that a devise to an alien would not vest the title in him ; but 
 in Vaux v. Nesbit, 1 McCord, Ch. 352; Clifton v. Ilaig, 4 Des. 330; 
 
 43
 
 § 56.] PARTIES TO TRUSTS, ETC. [CIIAP. II. 
 
 But an alien cannot plead his alienaj^e to defeat any trust 
 that may be charged upon the lands that come to him, nor 
 in bar of any contract made by him in relation to the pur- 
 chase of lands. ^ If lands in the hands of an alien charged 
 with a trust escheat to the State, the State as a general rule 
 takes only the title that the alien had ; and there are statutes 
 in many States that provide for carrying the trust into 
 execution. It has been held that an alien may be a corpora- 
 tor and trustee for a corporation;^ and that if an alien 
 trustee sold and conveyed the trust estate, equity would not 
 set the sale aside. ^ As to personal property aliens have the 
 same rights and privileges as citizens, and they can execute 
 trusts of personal chattels to the same extent as citizens. 
 An alien may take a mortgage of land as security for debt, 
 and he may have a decree of foreclosure or sale of the land 
 for the payment of the debt.'* But if the alien is domiciled 
 abroad, it is an objection to his fitness for the office, as he 
 is not within the jurisdiction of the court. ^ (a) 
 
 § 56. Lunatics can take a legal title by descent or by 
 devise, and they can take by purchase or grant, although 
 they have not mind enough to accept the conveyance. A 
 valid acceptance will be presumed after long acquiescence 
 
 Stephen v. Swann, 9 Leigh, 404, it was held that a devise would vest the 
 title in him subject to escheat on office found. 
 
 1 Dunlop V. Hepburn, 1 Wheat. 179 ; 3 id. 231 ; Scott v. Thorpe, 
 1 Edw. Ch. 512 ; Waugh v. Riley, 8 Met. 290. 
 
 2 Coinmeyer i'. United German Churches, 2 Sand. Ch. 186. 
 
 3 Ferguson v. Franklin, 6 Munf. 305 ; Escheator v. Smith, 4 McCord, 
 452. 
 
 * Iluiihes V. Edwards, 9 Wheat. 489. 
 
 5 Mt'inertzhager v. Davis, 1 Coll. C. C. 335 ; In re Tempest, L. R. 
 1 Ch. 4S5. 
 
 (a) In Indiana, a State statute cords to the citizens of each State all 
 
 providing that a trustee under a the privileges and immunities of the 
 
 written instrument shall be a bona citizens in the several States. Roby 
 
 fitle resident of the State, has been v. Smith, 131 Ind. 342. See 1 Ames 
 
 held invalid under that clause of on Trusts (2d ed.), 250; Shirk v. 
 
 the Federal Constitution which ac- La Fayette, 52 F. R. 857. 
 44
 
 CHAP. II.] BANKRUPT. [§ 58. 
 
 by all parties, or if tlic cestui que trust accc])t the deed, it 
 will be sufliciciit.^ JJut lunatics cannot execute a trust that 
 requires judgment and discretion, as they are incapable of 
 giving a valid assent that will bind themselves, the estate, 
 or the cestui que trust.^ Whenever a trust estate is vested 
 in a lunatic, it must be administered by his guardian, or by 
 the court, or he will be removed and a comi)ctcnt })crson 
 appointed, (a) An habitual or common drunicard may be a 
 trustee, but he may be removed.^ 
 
 § 57. A religious person, who l)y vows has renounced the 
 world, as a nun or monk, may be a trustee or guardian. It 
 is a matter for their own consciences, whether they will take 
 such an office, and courts cannot regard their religious 
 associations.^ 
 
 § 58. A bankrupt or insolvent is competent to take, hold, 
 and execute a trust. The trust estate docs not pass to his 
 assignees, nor does his certificate discharge him from any 
 fiduciary debts or obligations. (^)) As he holds only for the 
 
 1 Eyrick v. Eetrick, 13 Penn. St. 491 ; Re Bloomar, 2 De G. & Jon. 88. 
 
 2 Loomis V. Speucer, 2 Taige, 153; Swartwout v. Uurr, 1 Barb. 495; 
 Person r. Warren, 14 Barb. 488. 
 
 8 Webb V. Dietrich, 7 W. & S. 401. 
 4 Smith V. Young, 5 CJill, 197. 
 
 (rt) See In re Leon, (1892) 1 Ch. under the Trustee Act of 1893, the 
 
 348; In re Batho. 39 Ch. D. 189. Chancery Court may appoint a new 
 
 A lunatic was declared a trustee of trustee in place of a sole trustee 
 
 his interest in land to be partitioned, who is a lunatic not so found, but 
 
 in Caswell v. Sheen, 69 L. T. 854. cannot in such case make a vesting 
 
 A dumb paralytic is not necessarily order. In re M., [1899] 1 Ch. 79. 
 
 a person of unsound mind under See Plomley v. Richardson, [1894] 
 
 the English Trustee Act of 1850. A. C. G32. 
 
 In re Barber, 39 Ch. D. 187. (b) A person who receives per- 
 
 In England, under the Trustee sonal property in trust, is bound to 
 
 Acts of 18.50 and 1852, the general repay the proceeds thereof, if sold, 
 
 rule was that where a vesting order even after he has been discharged 
 
 was required by reason of a trustee in insolvency. Raphael v. Mullen, 
 
 being of un.sound mind, the Lunacy 171 Ma.'^s. 111. 
 
 jurisdiction must be resorted to; Under the Bankruptcy Act of 
 
 45
 
 § 60.] WHO MAY BE CESTUIS QUE TRUST. [cHAP. II. 
 
 cestui que trust, he cannot charge or incumber the estate 
 otherwise than for the beneficiary. ^ A witness to a will 
 who is incapable of taking a legacy to himself may yet take 
 a legacy in trust in which he has no interest.^ 
 
 § 50. Cestuis que trust are not incapable of taking in trust 
 for themselves and others, but they are not altogether fit 
 persons to be appointed, by reason of a possible conflict 
 between their duty and interest. Near relatives and con- 
 nections, like husband and wife, are also objectionable as 
 trustees, as by reason of aft'ection and influence frequent 
 breaches of trust may happen, and other irregular proceed- 
 ings are always to be feared ; but there is no absolute rule 
 of law that forbids such appointments, and they are some- 
 times inevitable ^ or necessary. 
 
 III. Who may he Cestuis que trust. 
 
 § 60. As a general rule, equity follows the law, and all 
 persons who are capable of taking the legal title to property 
 may take the equitable title as cestuis que trusty through the 
 medium of a trustee.* (a) 
 
 1 Scott V. Surnam, Willes, 402 ; Carpenter v. Marnell, 3 B. & P. 41 ; 
 Gladstone v. Hadwen, 1 M. & S. 526 ; Ex parte Glanys, 1 Mont. & Mac. 
 258; Ex parte Painter, 2 Deac. & Ch. 584; Butler v. Merchants Ins. Co. 
 14 Ala. 798; Shryock v. Waggoner, 28 Penn. St. 431; Harris v. Harris, 
 29 Beav. 107; Coperaan v. Gallant, 1 P. Wms. 314; Gardner v. Rowe, 
 2 Sim. & St. 346; Lounsbury r. Purdy, 11 Barb. 490; Ludwig v. Highley, 
 5 Barr, 132; Welhelm v. Falmer, 6 Barr, 296 ; Kep v. Bank of N. Y., 10 
 Johns. 63 : Bliss v. Pierce, 20 Yt. 25 ; Ontario Bank v. Mumford, 2 Barb. 
 Ch. 5fl6. 
 
 2 Hogan V. Wyman, 2 Oregon, 302. 
 
 8 Wilding V. Bolder, 21 Beav. 222; Ex parte Chxtton, 17 Jur. 988. See 
 also In re Tempest, L. R. 1 Ch. 485. 
 
 * Sand on Uses, 370; Lewin on Trusts, 35 ; Hill on Trustees, 52; Trot- 
 ter V. Blocker, Porter, 269. 
 
 1867, a debt was not created by a posed in the debtor, in the popular 
 
 person while acting in a *' fiduciary sense of those terms. Upshur r. 
 
 character," merely because it was Briscoe, 138 U. S. 365, 375. 
 created under circumstances in (n) A tribal Indian, who cannot 
 
 which trust or confidence was re- sue in the Federal courts, but can 
 46
 
 Cll.vr. II.] ALIENS, ETC. [§ 62. 
 
 § Gl. A trust may bo declarod in favor of the Crown. 
 By the old law tlio kin^ could take the use of real estate 
 only by matter found of record;^ but Mr. Hill says that it 
 has never been decided that a court of chancery would refuse 
 to execute a trust in land in favor of the Crown, if found 
 otherwise than by matter of record. ^ The king can take 
 personal projjerty as cestui que trust, in the same manner as 
 a private person.^ 
 
 § G2. The State may be a cestui que trust, and when there 
 are no statutes to forbid it, property may be given to trustees 
 for the use of the State or the United States in the same 
 manner as for the use of individuals. A deed to a trustee 
 and his heirs in trust for the State of South Carolina was 
 held to vest, by the statute of uses, the whole legal title in 
 the State.* And a deed to trustees in trust to sell and apply 
 the proceeds to pay a debt due to the United States from the 
 
 1 Bacon on Uses, 60 ; Gilbert on Uses, 44, 204. 
 
 2 Hill on Trustees, 5li; Rogers v. Itogers, 18 Hun (N. Y.), 409 ; Moke 
 V. Norrie, 21 id. 128. 
 
 8 i\Iiddleton v. Spiccr, 1 Bro. Ch. 201 ; Brummel v. iMcPherson, 5 
 Russ. 2G4; Nightingale r. Goulbourno, 5 Hare, 484; 2 Phill. 5.04; Mit- 
 ford V. Reynolds, 1 Phill. 185; Ashton v. Langdale, 4 Eng. L. & Eq. 80. 
 
 * Lamar v. Simpson, 1 Rich. Ch. 71. 
 
 sue in the courts of the State, may upon the land, ari.sos when the 
 be a cestui que trust. Felix v. Pat- money with which land is purchased 
 rick, 145 U. S. 317. A slave could is loaned to the purchaser. Hitt v. 
 not be a cestui que trust. See 1 Ames Applewhite (Miss.), 20 So. 161, 1G2. 
 on Trusts (2d ed.), 214. See Dorrah v. Hill, 73 Miss. 787 ; 
 A third person, who is not a mere Loftis v. Loftis, 94 Tenn. 232 ; Akin 
 volunteer, but is compelled by judg- v. Jones, 93 id. 353; Lewis v. Duane, 
 ment to pay the debt, secured by 141 N. Y. 302. A loan may, how- 
 trust deed, of the cestui que trust, is ever, create a resulting trust in land 
 subrogated to the cestui's right to by way of mortgage. Scott r. Beach, 
 collect his claim from the land. 172 111. 273. Subrogation is not a 
 iEtna Life Ins. Co. v. ^liddleport, matter of strict right in equity, but 
 124 U. S. 534; Holden v. Strick- is subject to the court's discretion, 
 land, 116 N. C. 185; Glover, Ap- Aultman v. Bishop, 53 Neb. 542, 
 pellant, 1G7 Mass. 280. No trust, 552. 
 or right of subrogation, or charge 
 
 47
 
 § 64] WHO MAY BE CESTUIS QUE TRUST. [cHAP. II. 
 
 grantor is valid, notwithstanding the statute which forbids 
 the purchase of any land on account of the United States, 
 unless authorized by act of Congress.^ 
 
 § 63. If there are statutes, like the statutes of mortmain, 
 which prevent corporations from taking the legal title to 
 lands, they cannot evade the statutes by taking the legal title 
 to trustees and the beneficial interest to themselves ; thus 
 they cannot be cestuis que trust in lands the legal title to 
 which they are not licensed or enabled to take.^ They can 
 be the cestuis que trust of personal property, to the same 
 extent as individuals.^ So voluntary associations may be 
 cestuis que trust of personal property, and if such associa- 
 tions have an authorized agent, treasurer, or secretary, the 
 trustees may act under his directions in performing the 
 trust.* (a) 
 
 § 64. If an alien is made the cestui que trust of land he 
 may enjoy it as against all but the State ; but the State can 
 at any time claim the equitable interest.^ This rule applies 
 where a mere naked trust is created in a trustee for the 
 benefit of an alien. But if the trustee is to do anything with 
 the land, that is, if the trust is executory, the court will do 
 nothing to transfer the right of the alien to the State. As 
 where a testator directed lands to be sold and the proceeds 
 divided among certain persons, some of whom were aliens, 
 the court considered that as done at the time of the death 
 
 1 Xeilson v. Lagow, 12 How. 107; 3 Stat, at Large, 568, May 1, 1820. 
 
 2 Hill on Trustees, 52; Lewin on Trusts, 36. 
 8 Ibid. 
 
 * Sangston v. Gordon, 22 Gratt. 755. 
 
 6 Dumoncel v. Dumoncel, 13 Ir. Eq. 92 ; Vin. Ab. Alien, A. 8; God- 
 frey V. Dixon, Godb. 275 ; Barrow v. Wadkin, 24 Beav. 1 ; King v. Hol- 
 land, Al. 16; Styl. 21; Burney w. MacDonald, 15 Sim, 6; Rittson v. Stordy, 
 3 Sm. & Gif. 230; Att.-Gen. v. Sands, Hard. 495; Fourdrin v. Gowdy, 
 3 M. & K. 383; Burgess r. Wheate, 1 Eden, 188; Du Hournielin v. Shel- 
 don, 1 Beav. 79 ; 4 My. & Cr. 525 ; Master v. DeCroismar, 11 Beav. 184. 
 
 (a) White v. Rice, 112 Mich. 403. 
 
 48
 
 CHAP. II.] ALIENS, ETC. [§ 65. 
 
 which was ordered t(j be done, and that it was a devise of 
 mere personalty, and it refused to allow the Crown to elect 
 to keep the funds in land in order to work a forfeiture. ^ So 
 where an ajront to collect a debt for an alien took a deed of 
 real estate in trust to sell and pay the i)roceeds to the alien 
 creditor, the heirs of the aprent were ordered, having sold 
 the land, to pny the proceeds to the principal. ^ But where 
 an alien jjaid the money for lands, and took the deed in the 
 name of a citizen as trustee, the trustee was adjudged to 
 hold the land in trust for the commonwealth.^ Equity will 
 not raise a resulting trust in favor of an alien.* Nor will it 
 allow a legacy given to an alien to be charged upon real 
 estate,^ nor lands liable to escheat to be sold for the payment 
 of debts in order that aliens may take their legacies out of 
 the personalty.^ Aliens may be the ccstuis que trust of per- 
 sonal property without objection;' and trustees for aliens, 
 and alien cestuis que trust may maintain actions in our 
 courts to maintain their rights in the trust property.^ 
 
 § Go. There is another class of cases that illustrates the 
 principle that the beneficial donee of property cannot take 
 as cestuis que trust, if he is prohibited from taking the legal 
 title to that property ; as where a slave is prohibited from 
 holding property, he cannot be made a cestui que trust of 
 
 1 Burney v. MacDonalfl, 15 Sim. 11; Rittson v. Stordy, 3 Sm. & Gif. 
 240; Du Hourmelin v. Sheldon, 1 Beav. 79; 4 My. & Cr. 525. And see 
 Masters. De Croi.smar, 11 Beav. 184; Barrow v. Wadkin, 24 Beav. 1; 
 Craig V. Leslie, 3 Wheat. 563; Austin v. Brown, G Paige, 44S; Neilson v. 
 Lagow, 12 How. 107 ; Com'th v. Martin, 5 Munf. 117; Meakings v. Crom- 
 well, 1 Selden, 136. 
 
 2 Austin V. Brown, 6 Paige, 448; McCaw v. Galbrath, 7 Rich. Law, 
 74. 
 
 8 Hubbard v. Goodwin, 3 Leigh, 492. 
 
 * Leggett V. Dubois, 5 Paige, Ch. 114; Phillips r. Crammond, 2 Wash. 
 C. C. 441. See Taylor v. Benham, 5 How. 270, and Farley v. Shippen, 
 Wythe, 135. 
 
 6 Atkins V. Kron, 2 Tred. Eq. 423. 
 
 * Trezavant v. Howard, 5 Des. 87. 
 
 ^ Bradwell r. Weeks, 1 Johns. Ch. 206. 
 8 Hamersley v. Lambert, 2 Johns. Ch. 508. 
 VOL. I. — 4 49
 
 § 66.] WHO MAY BE CESTUIS QUE TRUST. [CHAP. II. 
 
 property.^ In Virginia, a free negro was prohibited from 
 holding slaves, and it was held that he could not be a cestui 
 que trust of slaves. ^ So where emancipation was forbidden, 
 a slave could not be the cestui que trust of his own freedom. ^ 
 But in Mississippi it was held that land purchased with 
 money furnished by a slave with the acquiescence of her 
 master, and the title taken in the name of a freeman, was 
 held in trust for the slave after her actual emancipation by 
 living in Ohio, and that the trust could be enforced against 
 all persons who took the land with notice of the facts.* So 
 where an individual took stock in trust for a corporation 
 that had no right to hold shares in another corporation, it 
 was held that such shares did not go to the assignees upon 
 the bankruptcy of the individual, but that they must be 
 disposed of as the corporation, as cestui que trust, should 
 direct.^ 
 
 § 66. But in charitable trusts the cestuis que trust are 
 not, and need not be, capable of taking the legal title, as 
 when property is given in trust for the poor of a parish, or 
 for the education of youth, or for pious uses, or for any 
 charitable purpose, the beneficiaries are generally unknown, 
 uncertain, changing, and incapable of taking or dealing 
 with the legal title; but such trusts are valid in equity, and 
 courts of equity will administer them and protect the rights 
 of the cestuis que trust.^ And in trusts not charitable it is 
 not always necessary that the cestui que trust should be in 
 existence at the time of the creation of the trust; as a devise 
 to a father in trust for accumulation for his children law- 
 fully begotten at the time of his death was held to be good, 
 
 1 Skrine v. Walker, 3 Rich. Eq. 262; Pool v. Harrison, 18 Ala. 514. 
 
 2 Dunlap V. Harrison, 14 Gratt. 2.51. 
 
 8 Trotter v. Blocker, Porter, 269; Graves v. Allen, 1.3 B. Monr. 190. 
 
 * Leiper v. Hoffman, 26 Miss. 615; and see Frazier v. Frazier, 2 Hill, 
 Ch. 305; Ross v. Duncan, Freem. Ch. 603; Osterman v. Baldwin, 6 Wall. 
 116. 
 
 6 Great Eastern Ry. Co. i;. Turner, L. R. 8 Ch. 149; Ex parte Wat- 
 kins, 2 Mont. & A. 348. 
 
 ^ Post, chapter on Charitable Trusts. 
 50
 
 CHAP. II.] ALIENS, ETC. [§ 66. 
 
 although the father had no children at the time of the vest- 
 ing of the funds in him as trustee/ So an illegitimate child 
 born, or in ventre sa mhre, may be a cestui que trust (a) ;^ but 
 a trust for illegitimate children to be thereafter begotten 
 will not be enforced, as being against good morals.^ Nor 
 will a court of equity establish or execute a trust that is 
 founded upon a consideration that is fraudulent, or malum 
 in se, or malum prohibitum, or immoral, or corrupt, or con- 
 trary to public policy.'* But a trust not charitable created in 
 prcescnti for cestuis que trust does not take effect until the 
 cestuis que trust are identified ; as where land was conveyed 
 under articles of agreement in trust for the subscribers 
 thereto, the title of the grantor was not divested until there 
 were subscribers.^ In some cases a person is capable of 
 taking an equitable interest, in a manner in which the legal 
 interest could not be limited. Thus at law no property can 
 be so limited to a married woman as to exclude the legal 
 
 1 Asburst V. Given, 5 Watts & S. 329 ; Carson v. Carson, 1 Wins. 
 (N. C.) 24. 
 
 2 Gabb V. Trendergast, 3 Eq. R. G48 ; Pratt v. Flamer, 7 liar. & J. 10; 
 Gardner i'. Hever, 2 Paige, 11 ; Collins v. Hoxie, 9 Paige, 81 ; In re Con- 
 nor, 2 Jones & Lat. 456; Evans v. Davies, 7 Hare, 498; Owen v. Bryant, 
 21 L. J. Ch. 860. 
 
 8 Medworth v. Pope, 27 Beav. 21 ; Wilkinson v. Wilkinson, 1 Younge 
 & C. Ch. 657; Pratt v. Mathew, 22 Beav. 528; Howarth v. Mills, L. 11. 
 2 Eq. 389. 
 
 * Ownes r. Ownes, 23 N. J. Eq. 60 ; Battinger v. Budenbecker, 63 
 Barb. 404 ; 69 Barb. 395. 
 
 6 Urkett I'. Coryell, 5W. & S. 61. 
 
 (a) Thompson v. Thomas, 27 ents' marriage are presumed legiti- 
 L. R. Ir. 457. As the law fixes no mate, but the presumption of legiti- 
 limit to the age of child-bearing, a macy is now held rebuttable. See 
 trust for a woman's "children now Burnaby v. Baillie, 42 id. 282; Orth- 
 living, or that may hereafter be wein v. Thomas, 127 111. 554 ; Shu- 
 born," continues through the wo- man v. Shuman, 83 Wis. 250; 2 
 man's life. Forrest v. Porch, 100 Kent Com. (Mth ed.), 209 n. 
 Tenn. 391; Bearden v. White A deed of the father for his 
 (Tenn. Ch.), 42 S. W. 476. See illegitimate child's benefit has a 
 In re Hocking, [1898] 2 Ch. 567 ; good consideration. Couley v- 
 1 Ames on Trusts (2d ed.), 455, n. Nailor, 118 U. S. 127. 
 
 Children born after their par- 
 
 51
 
 68.] PROPERTY OF A TRUST. [CHAP. II. 
 
 rights of the husband ; but, by way of trust, property can be 
 so given to her uso as to place it entirely beyond the right 
 of enjoyment by the husband.^ A trust for the heirs of A. 
 is valid as a trust for the children of A.^ 
 
 lY. }V7iat Property may he the Subject of a Trust. 
 
 § 67. Every kind of valuable property, both real and per- 
 sonal, that can be assigned at law may be the subject-matter 
 of a trust. Every kind of vested right which the law recog- 
 nizes as valuable may be transferred in trust, as a receipt 
 for a medicine, 3 the copyright of a book,* a patent right, ^ (a) 
 a trade secret,^ or growing crops. '^ 
 
 § 68. At common law no possibility, right, title, nor cliose 
 in action could be granted or assigned to strangers.^ But in 
 equity the rule is different, and choses in action,^ expec- 
 tancies,^^ contingent interests, ^^ and even possibilities ^^ m^j 
 
 1 Lewin on Trusts, 37. 
 
 « Flint V. Steadman, 36 Vt. 210. 
 
 8 Green v. Folgham, 1 Sim. & St. 398. 
 
 4 Sims V. Marryal, 17 Q. B. 281. 
 
 6 Russell's Patent, 2 De G. & Jon. 130. 
 
 6 Morrison v. Moat, 6 Eug. L. & Eq. 14; 9 Hare, 241. 
 
 ' Robinson v. Maulden, 11 Ala. 908; Grantham v. Hawley, Hob. 132; 
 Fetch V. Tutin, 15 M. & W. 110 ; McCarty v. Blevins, 5 Yerg. 195. 
 
 8 Lampet's Case, 10 Coke, 48 ; Thallhimer v. Brinckerhoff, 3 Cow. 623. 
 
 » Row V. Dawson, 1 Ves. 322 ; Ryall v. Rolles, 1 Ves. 348 ; Townsend 
 V. Windham, 2 Ves. 6 ; Ex parte Alderson, 1 Mad. 53 ; Burn v. Car- 
 valho, 4 My. & Cr. 690 ; Yeates v. Grover, 1 Ves. Jr. 280 ; Ex parte South, 
 3 Swans. 393 ; Morton v. Naylor, 1 Hill, 583 ; Clemson v. Davidson, 5 
 Binn. 392. 
 
 10 Fitzgerald v. Vestal, 4 Sneed, 258 ; Hobson v. Trevor, 2 P. Wms. 191 ; 
 Beckley v. Newland, id. 182; Wetherhed v. Wetherhed, 2 Sim. 183; 
 Douglass V. Russell, 4 Sim. 184 ; Langton v. Horton, 1 Hare, 549. 
 u Ibid. ; Varish v. Edwards, 1 Hoff. Ch. 382. 
 12 Ibid. 
 
 (a) See 1 Ames on Trust (2d Shipping Acts now distinguish be- 
 ad.), 194. In England, there could tween legal and beneficial interests 
 be no implied trust in a registered therein. See Chasteauneuf v. Cap- 
 British ship; but the Merchant eyron, 7 A C. 127. 
 52
 
 CHAP. II.] CHOSES IX ACTION. [§ 69. 
 
 bo assigned, and a valid trust created in them. Equitable 
 reversionary interests stand upon the same ground.^ 
 Property not owned by the assignor at the time, and not 
 even in esse, may be assigned in equity ;2 and a valid trust 
 may be created in a naked power or authority. ^ 
 
 § 09. But there arc some choscs in action, rights, claims, 
 and interests that cannot be assigned in equity; either 
 because some statute prohibits, or because it is against 
 public policy to allow assignments of them to strangers. 
 Thus an ofiiccr in the army cannot assign or pledge his 
 commission,* nor his full or half pay.^ A judge cannot 
 assign his salary ;^ nor can a pension given for the honorable 
 support of the dignity of a title be assigned.^ The principle 
 seems to be that when a salary, annuity, or pension is given 
 by the State for the support of its own dignity and the 
 
 1 Voyle V. Hughes, 2 Sm. & Gif. 18 ; Kekewich v. Manning, 1 De 
 G., M. & G. 187; and cases supra. 
 
 2 Penuock w. Coe, 23 How. 117; Mitchell v. Winslow, 2 Story, 630; 
 6 Law Rep. 347 ; Holroyd r. Marshall, 2 Gif. 382 ; 2 De G., F. & J. 59G ; 
 
 9 Jur. N. s. 213 ; 33 L. J. Ch. 193 ; Hope v. Hayley, 5 El. & Bl. 845 ; Calk- 
 ins V. Lockwood, 17 Conn. 154 ; Langton v. Ilorton, 1 Hare, 549 ; Brooks 
 V. Hatch, 6 Leigh, 534 ; Leslie v. Guthrie, 1 Bing. N. C. G97 ; Field v. 
 Mayor of X. Y., 2 Selden, 179; Robinson v. IMacdonald, 5 M. & S. 228; 
 In re Ship Warre, 8 Price, 2G9 ; Stewart v. Kirkland, 19 Ala. 162 ; Ilinkle 
 V. Wanzer, 17 How. 353 ; Mc Williams v. Nisby, 2 S. & R. 509 ; Wilson's 
 Estate, 2 Barr, 325. 
 
 8 Brown v. Higgs, 8 Ves. 570. 
 
 * Collier v. Fallon, 1 Turn. & Rus. 459 ; and see L'Estrange v. L'Es- 
 trange, 1 Eng. L. & Eq. 153. 
 
 6 Stone V. Lidderdale, 2 Anst. 533 ; Priddy v. Rose, 3 :Mer. 102 ; Tun- 
 stall V. Boothby, 10 Sim. 540; Flarty v. Odium, 3 Tr. 681 ; Lidderdale i'. 
 Montrose, 4 T. R. 248. 
 
 « Arbuthnot v. Norton, 5 Moore, P. C. C. 219; Cooper «. Reilly, 2Sim. 
 5G0 ; Palmer r. Bate, 6 Moore, 28; 2 Rrod. & Bing. 673 ; Hill v. Paul, 8 CI. 
 & Fin. 295. But in State Bank v. Hastings, 15 Wis. 75, it was held that 
 a judge could assign his salary. 
 
 ' Davis V. Marlborough, 1 Swanst. 79 ; McCarthy i\ Gould, 1 Ball & 
 Beatt. 387 ; Price v. Lovett, 4 Eng. L. & Eq. 110 ; Grenfell v. Dean, &c., 
 2 Beav. 550. See also Wells v. Foster, 8 M. & W. 149 ; Spooner v. Payne, 
 
 10 Eng. L. & Eq. 207. 
 
 53
 
 § 70.] PROPERTY OF A TRUST. [CHAP. IL 
 
 administration of its affairs, it is not becoming that its 
 oflicers should deprive themselves of the means of support 
 which it gives to them; but a pension or annuity for past 
 services may be assigned.^ The mere right to file a bill in 
 equity for a fraud committed upon the assignor, or to sue for 
 a tort, cannot be assigned and a trust created in such rights. ^ 
 A mere naked expectancy arising from a peculiar position, 
 such a position as that a person expects to make a favorable 
 bargain and purchase (and he employs an agent to negotiate 
 the jjurchase, and such agent purchases for another), is not 
 such property that a trust can be created in it.^ 
 
 § 70. The question has been frequently mooted in courts, 
 how far a trust could be engrafted and enforced upon foreign 
 property, or property beyond the limits of the jurisdiction of 
 the court where the suit is pending. In regard to personal 
 property there is no difficulty, for it follows the person; and 
 if the court has jurisdiction over the parties, it has jurisdic- 
 tion over the subject-matter, and can enforce a trust or any 
 other equity.^ If the personal property is, however, in fact 
 beyond the jurisdiction of the court, there may arise some 
 practical obstructions to the execution of the decrees of the 
 court. ^ "Where the trust is created by a judicial decree in 
 another State, as by probate of a will in New York State, 
 the trustee is accountable in the courts of that State ; and 
 
 1 Alexander v. Wellington, 2 Russ. & My. 35; Tunstall v. Boothby, 
 10 Sim. 452 ; Feistal v. King's College, 10 Beav. 491 ; and see Berkley 
 V. King's College, 10 Beav. 499, and Butcher v. Musgrove, 2 Beav. 550 ; 
 Stevens v. Bagwell, 15 Ves. 139. 
 
 2 Prosser v. Edmonds, 1 Yo. & Col. 481 ; Gardner v. Adams, 12 Wend. 
 297; Dunklin v. Wilkins, 5 Ala. 199 ; McKee v. Judd, 2 Ker. 622. It is 
 not intended to enter into all the niceties of the law of assignments. An 
 exhaustive statement of the law and a collection of all the cases will be 
 found in Story's Eq. Jur. §§ 1040-1055, and 3 Lead. Cas. in Eq. pp. 279- 
 380 (3d Am. ed.). 
 
 * Garrow v. Davis, 15 How. 277. 
 
 4 Hill V. Reardon, 2 Russ. 608; Hill on Trustees, 44 ; Lewin on Trusts, 
 39; Chase r. Chase, 2 Allen, 101; Mason v. Chambers, 4 J. J. Marsh. 
 401. 
 
 6 Booth V. Clark, 17 How. 327. 
 54
 
 CHAP. II.] LAND IN A FOUEIGN JURISDICTION. [§ 7L 
 
 where the will lias not been proved or recorded in the State 
 of the former, nor any letters testamentary or of administra- 
 tion or trusteeship have been issued there, the trustee can- 
 not be compelled to execute the trust, though residing in the 
 State of the former ; such is the settled law of Massachusetts. ^ 
 Such a case differs entirely from one in which the trust is 
 created by instrument inter partes without judicial decree.^ 
 
 § 71. As to lands lying in a foreign jurisdiction, the court 
 will enforce natural equities and compel the specific per- 
 formance of contracts, if the parties are within its jurisdic- 
 tion. Thus Lord Eldon allowed a lien to a consignor for 
 advances upon estates in the West Indies;^ and a specific 
 performance of articles between parties for the settlement of 
 their boundaries was enforced;* effect was given to an 
 equitable mortgage by deposit of the title-deeds to land in 
 Scotland, though by the law of Scotland such deposit created 
 no lien;^ an account was ordered of the rents and profits of 
 lands abroad ; ^ and an absolute sale ^ or a foreclosure of a 
 mortgage ^ decreed ; a fraudulent conveyance was relieved 
 against,^ and injunction granted against taking possession. ^"^ 
 Chief-Justice Marshall said: "Upon the authority of these 
 cases and others which are to be found in the books, as 
 well as upon general principles, this court is of opinion that 
 
 ^ Jenkins v. Lester, 131 Mass. 357, and cases there cited. 
 2 Massie v. Watts, 6 Cranch, 148, 160. 
 8 Scott V. Nesbitt, 14 Ves. 438. 
 
 * Penn v. Lord Baltimore, 1 Ves. 444 and Belt's Sup. ; Roberdeau v. 
 Rous, 1 Atk. 543, West. 23; Tullock v. Hartley, 1 Yo. & Col. 114; Good 
 V. Good, 33 Beav. 314 ; Portarlingtou v. Soulby, 3 My. & K. 104 ; Athol 
 V. Derby, 1 Gh. Gas. 221. 
 
 6 Ex parte Pollard, 3 IMont. & Ayr. 310 ; Mont. & Chit. 239 ; Norris v. 
 Chambers, 29 Beav. 246 ; Martin v. Martin, 2 R. & M. 507. 
 
 * Roberdeau v. Rous, 1 Atk. 543. 
 
 7 Ibid. 
 
 * Toller V. Carteret, 2 Vern. 494. 
 
 ^ Arglasse v. Muschamp, 1 Vern. 75 ; Archer v. Preston, 1 Vern. 77 ; 
 1 Eq. Abr. 133. 
 
 10 Cranstown v. Johnston, 5 Ves. 278 ; Buubury r'. Bunbury, 1 Beav. 318 j 
 Hope V. Carnegie, L. R. 1 Ch. 320. 
 
 55
 
 § 71.] PROPERTY OF A TRUST. [CHAP. II. 
 
 in case of fraud, of trust, or of contract, the jurisdiction of 
 a Court of Chancery is sustainable wherever the person be 
 found, although lands not within the jurisdiction of that 
 court may be affected by the decree."^ But if the person is 
 not within the jurisdiction of the court, and the land is, the 
 court cannot decree a specific performance of an agreement 
 for a sale. 2 If a trust is created by the will of a citizen of a 
 particular State, and his will is allowed by the Probate 
 Court of that State, and a trustee is appointed by the Pro- 
 bate Court, courts of equity will have jurisdiction over the 
 trust, although both the trustee and the property are beyond 
 the jurisdiction of the court. Chief-Justice Bigelow, in 
 determining this point, said: "The residence of the trustee 
 and cestui que trust out of the commonwealth does not take 
 away the power of this court to regulate and control the 
 proper administration of trust estates which are created by 
 wills of citizens of this State, and which have been proved 
 and established by the courts of this commonwealth. The 
 legal existence of the trust takes effect and validity from the 
 proof of the will, and the right of the trustee to receive the 
 trust fund is derived from the decree of the Probate Court. 
 If the trustee is unfaithful or abuses his trust, that court 
 has jurisdiction to remove him in concurrence with this 
 court on the application of those beneficially interested in 
 the estate. "3 And where A. had fraudulently obtained a 
 deed of land, in a foreign State, from B., and had conveyed 
 it to C. without consideration, it was held that although the 
 
 1 Massie v. Watts, 6 Cranch, 160; Farley r.Sliippen, Wythe, 135 ; Kil- 
 dare v. Eustace, 1 Vern. 419; Ward v. Arredoodo, Hopk. 213; DeKlyn 
 V. Watkins, 3 Sand. Ch. 185; Guerrant v. Fowler, 1 Hen. & M. 4; Shat- 
 tuck V. Cassidy, 3 Edw. Ch. 152 ; Newton v. Bronson, 3 Ker. 587 ; Sutphen 
 V. Fowler, 9 Paige, 280 ; Epis. Church v. Wiley, 2 Hill. Ch. 584 ; Dick- 
 inson V. Hoomes, 8 Gratt. 353 ; Hughes v. Hall, 5 Munf. 431 ; Vaughn v. 
 Barclay, 6 Whar. 392 ; Watkins v. Holman, 16 Pet. 25 ; Guild v. Guild, 
 16 Ala. 121 ; White v. White, 7 Gill. & J. 208. But see Lewis v. Nelson, 
 1 Mc Carter, 94. 
 
 2 Spurr V. Scoville, 3 Cush. 578 ; Meux v. IMaltby, 2 Swaust. 277 ; Fell 
 r. Brown, 2 Bro. Ch. 276. 
 
 8 Chase v. Chase, 2 Allen, 101 ; Curtis v. Smith, 60 Barb. 9. 
 56
 
 CHAP. II.] LAND m A FOREIGN JURISDICTION. [§ 72. 
 
 courts of other States would not declare such deeds to be 
 nullities, yet they would order reconveyances from the 
 parties before the court; and if such parties went beyond the 
 jurisdiction, the court could appoint special commissioners 
 to execute such reconveyances.^ And so trustees to whom 
 property has been conveyed by the owner by a direct convey- 
 ance can sue in any and all courts which have jurisdiction 
 over the parties or the subject-matter of the suit; but if the 
 trustee depends upon some court to clothe him with the 
 office and title of trustee, he, like an administrator or 
 executor, can only sue within the country or State over 
 which the jurisdiction of the court appointing him extends. ^ 
 
 § 72. The foundation of this doctrine is the jurisdiction 
 of the court over the person, which was originally the only 
 jurisdiction of courts of equity.^ They cannot, when the 
 property is in a foreign jurisdiction, make a decree in rem, 
 binding upon the land ; but they can enter a decree in per- 
 sonam and compel its performance by process in contempt;* 
 hence if the parties arc not before the court, or the court 
 has no jurisdiction over them, the specific performance of a 
 contract cannot be decreed;^ and if the court cannot give 
 relief by a decree against the person, but must go further 
 and make a decree to be executed by its own officers against 
 the land, it must, of course, if the land is beyond its juris- 
 diction, refuse to act.^(a) It is not necessary that the person 
 
 1 Cooley V. Scarlett, 38 111. 316. 
 
 2 Curtis V. Smith, 6 Blatch. 537. 
 
 * Penu V. Baltimore, 1 Ves. 4-44 ; Massie v. "Watts, 6 Cranch, 160. 
 
 * Ibid.; White v. White, 7 Gill & J. 208 ; Mead'r. Merritt, 2 Paige, 
 404. 
 
 6 Spurr V. Scoville, 3 Cush. 578 ; Meux v. Maltby, 2 Swanst. 277 ; Fell 
 V. Browu, 2 Bro. Ch. 276. 
 
 " Morris v. Remington, 1 Pars. Eq. 387 ; Bank of Virginia i*. Adams, 
 1 Pars. Eq. 547 ; Blunt v. Blunt, 1 Hawks, 305 ; White v. White, 7 Gill 
 
 (a) See Cole y. Cunningham, 133 650. Suit does not lie in England 
 U. S. 107 ; Cloud v. Greasley, 125 to recover land in a colony or for- 
 111. 313 ; Potter v. Ilollister, 45 N. J. eigu country. Re Holmes, 2 J. & 
 Eq 5U8 ; Gibson v. Burgess, 82 Va. H. 527 ; Jenney v. Mackintosh, 33 
 
 67
 
 § 72.] PROPERTY OF A TRUST. [CHAP. 11. 
 
 to be bound by a decree should be domiciled within the 
 jurisdiction of the court. It will be sufficient if the person 
 is found and served with process within the jurisdiction, 
 and a ne exeat may be obtained to prevent his departing until 
 the decree of the court is performed;^ or if a person is 
 prosecuting a suit at law within a jurisdiction, a suit in 
 equity may be maintained, and an injunction may be decreed 
 against him, and service on his attorney in the suit at law 
 would be a good service to bring him within the jurisdic 
 tion.'^ So if courts of equity have jurisdiction over the 
 parties to a controversy, they can enjoin them from proceed- 
 ing in the courts of foreign States or countries. This power 
 does not depend upon any superintending power of the courts 
 
 & J. 208 ; Cartwright v. Pettus, 2 Ch. Cas.214 ; 2 Swanst. 323 n.; Water- 
 house V. Stansfield, 9 Hare, 23-1, 10 Hare, 254 ; Martin v. Martin, 2 R. & 
 ^ly. 507 ; Nelson v. Bridport, 8 Beav. 547 ; Walker v. Ogden, 1 Dana, 
 252; Williams v. Mans, 6 Watts, 278; Booth v. Clark, 17 How. 322; 
 Hawley v. James, 7 Paige, 213 ; White v. White, 7 Gill & J. 208. 
 
 1 Mitchell V. Bunch, 2 Paige, 606 ; Baker v. Dumaresque, 2 Atk. 66 ; 
 Howden v. Rogers, 1 Ves. & B. 129 ; Flack v. Holm, 1 Jac. & W. 406 ; 
 Grant v. Grant, 3 Russ. 598; Woodward v. Schatzell, 3 Johns. Ch. 412 ; 
 Gilbert v. Colt, 1 Hopk. 496. 
 
 2 Chalmers v. Hack, 19 Maine, 124. 
 
 Ch. D. 595. In British South Africa law of the creator's domicil. Nel- 
 
 Co. V. Companhia de Mo9ambique, son v. Bridgport, 8 Beav. 527, 547; 
 
 [1893] A. C. 602, the Supreme In re Piercy [1895], 1 Ch. 83; De 
 
 Court of Judicature was held to Puy v. Standard M. Co., 88 Maine, 
 
 have no jurisdiction of an action to 202 ; Penfield v. Tower, 1 N. D. 216; 
 
 recover damages for trespass to land see Spindle v. Shreve, 111 U. S. 
 
 abroad. See 19 Law Mag. & Rev. 542, 547 ; Codman v. Krell, 152 
 
 115; 49 Alb. L.J. 125. Mass. 214; Proctor v. Clark, 154 
 
 As to conflict of laws in regard Mass. 45 ; Rosenbaum v. Garrett 
 
 to trusts, it is now considered im- (N. J.), 41 Atl. 252 ; Fowler's Ap- 
 
 perative, as to real estate, that jur- peal, 125 Penn. St. 388 ; Hope v. 
 
 isdiction of the res shall be sufficient Brewer, 136 N. Y. 126 ; Cross v. 
 
 to enable adequate relief to be given U. S. Trust Co , 25 Abb. N. C. 166 ; 
 
 in all matters where equitable inter- First Nat'l Bank xk Nat'l Broadway 
 
 ests have attached, care being taken Bank, 156 N. Y. 459; English v. 
 
 that absent parties have notice and Mclntyre, 51 N. Y. S. 697 ; Yore v. 
 
 ample oi:)portunity to protect their Cook, 67 111. App. 586 ; Purdom v. 
 
 rights, while trusts in personal prop- Pavey, 26 Can. Sup. 412. 
 erty are to be determined by the 
 58
 
 CHAP. II.] LAND IN A FOREIGN JURISDICTION. [§ 72. 
 
 of one country over those of another, whicli docs not exist; 
 but it is founded wholly upon the power which courts of 
 ecjuity have over all litigants within its actual jurisdiction. 
 This jurisdiction is in personam^ and the decrees are directed 
 against the persons or parties. If the decree should be dis- 
 regarded, and a litigant should prosecute a suit in a foreign 
 tribunal, no action could be taken against the agents, 
 officers, or judges of such foreign tribunal, but the remedy 
 would be confined to proceeding against the party who has 
 proceeded in contempt of the injunction.^ There is, how- 
 ever, an exception to this practice in the case of the courts 
 of the several States and of the courts of the United States. 
 Tlicse courts have concurrent jurisdiction over many causes; 
 and to prevent unpleasant conflicts of jurisdiction, it has 
 been held, upon grounds of public policy, that they have no 
 power to restrain or enjoin suitors from pursuing their 
 rights in the courts of their choice, whether of the State or 
 of the United States. ^ 
 
 1 Story, Eq. Jur. §§ 899, 900 ; Dehon v. Foster, 4 Allen, 545 ; Great 
 Falls V. Worster, 23 N. H. 470 ; Bank v. Rutland, 28 Vt. 470 ; Hays v. 
 Ward, 4 Johns. Ch. 123 ; Vail v. Knapp, 49 Barb. 299 ; Massie v. Watts, 
 6 Cranch, 158, IGG ; Angus v. Angus, West Ch. 23 ; Moody v. Gay, 15 
 Gray, 457; Sutpheu v. Fowler, 9 Paige, 282; Mitchell v. Buuch, 2 Paige, 
 G15 ; Mackintosh v. Ogilvie, 4 T. R. 193 n., 3 Swanst. 3G5 n.; Cranstown 
 V. Johnston, 3 Yes. 179, 5 Yes. 277; Bunbury v. Bunbury, 1 Beav. 318; 
 Carron Iron Co. t'. Maclaren, 5 H. L. Cas. 416 ; Beckford v. Kemble, 1 S. 
 & S. 7 ; Harrison v. Gurney, 2 Jac. & W. 503 ; Bowles v. Orr, 1 Y. & C. 
 404 ; Portarlington r. Soulby, 3 My. & K. 104; Duncan v. McCalmont, 3 
 Beav. 409; Graham v. Maxwell, 1 Mac. & Gord. 71; Briggs v. French, 
 1 Sumii. 504; Dobson v. Pearce, 1 Duer, 112, 2 Kern. 15G; Pearce v. 01- 
 ney, 20 Conn. 514 ; Cage v. Cassidy, 23 How. 109, 117; Marsh v. Putnam, 
 3 Gray, 566; Brigham v. Henderson, 1 Cush. 430; Beal u. Burchstead, 10 
 Cush. 523; Maclaren i'. Stainton, 16 Beav. 286. The case of Carroll v. 
 Farmers' Bank, Harrington, 197, is not followed. 
 
 2 Diggs V. Walcott, 4 Cranch, 179 ; McKim r. Voorhies, 7 Cranch, 279 ; 
 Sumner v. Maroy, 3 W. & ]\I. 119; Coster v. Griswold, 4 Edw. Ch. 377 ; 
 English r. Miller, 3 Rich. Eq. 320. See also Mead v. ISIerritt, 2 Paige, 
 402; Bicknell v. Field, 8 Paige, 410; Burgess v. Smith, 2 Barb. Ch. 276; 
 Grant v. Quick, 2 Sandf. 612; Croft v. Lathrop, 2 Wall. Jr. 103; Cruik- 
 shanks v. Roberts, G Madd. 104 ; Bushby i'. ^luuday, 5 Madd. 307 ; Joues 
 r. Goddes, 1 Phillips Ch. 725. 
 
 59
 
 73.] EXJPKESS TKUSTS, ETC. [CHAP. III. 
 
 CHAPTER III. 
 
 EXPRESS TRUSTS, AND HOW EXPRESS TRUSTS ARE CREATED AT 
 COMMON LAW, SINCE THE STATUTE OF FRAUDS, AND IN PER- 
 SONAL PROPERTY, AND HEREIN OF VOLUNTARY CONVEYANCES 
 OR SETTLEMENTS IN TRUSTS. 
 
 § 73. Division of trusts, according to the manner of their creation. 
 §§ 74-77. Trusts at common law. 
 § 74. At common law, a writing not necessary to convey land. 
 
 § 75. Uses might also be created without writing, and so may trusts, in 
 
 States where the statute of frauds is not in force. 
 § 76. Parol cannot control a written trust nor engraft an express trust 
 
 on an absolute conveyance. 
 § 77. Same rule as to trusts created by parol. 
 
 § 78' The statute of frauds, and its form in various States. 
 § 79. Effect of the statute upon the creation of express trusts. 
 
 §§ 80, 81. Effect of the different forms of the words of the statutes in the 
 
 several States. 
 § 82. How express trusts may be proved or manifested under the 
 
 statute. 
 § 83. Certainty of the terms of the trust, and the person by whom it is 
 
 to be declared. 
 §§ 84, 85. Trusts declared or proved by answers in chancery. 
 
 § 86. Trust in personal property may be created by parol. 
 
 §§ 87, 88. Trusts arising from gifts mortis causa and for charitable uses. 
 
 § 89. Statute of wills, and the execution of wills. 
 § 90. Trust cannot be created in a will, unless it is properly executed, to 
 
 pass the property. 
 §§91, 92. But might be manifested by a recital in a will not properly exe- 
 
 cuted. 
 § 93. The effect of the necessity of probate of wills. 
 
 § 94. Parol evidence cannot convert a bequest in a will into a trust. 
 
 An executor is a trustee of the surplus. 
 § 95. When a trust is completely created. 
 
 An agreement upon a valuable and legal consideration will be 
 
 carried into effect as a trust or a contract. 
 §§ 96-98. If a complete trust is created without consideration, it will be 
 
 carried into effect. 
 § 97. But if anything remains to be done to complete the trust, it will 
 
 not be carried into effect, if without consideration. 
 § 99. Whether a lawful trust is completely created or not a question of 
 
 fact in each case. 
 
 60
 
 CHAP. III.] AT COMMON LAW. [§ 74. 
 
 § 100. Trust for a stranger withoat coosideraticm not completed \rithoat 
 
 transfer of the le<^al title. 
 § 101. But if the legal title cannot be transferred, a different rule will 
 
 apply. 
 § 102. If the subject of the proposed trust is an equitable interest, the 
 
 legal title need not be transferred. 
 § 103. The instrument of trust need not be delivered. 
 
 § 104. If once perfected cannot be destroyed, though voluntary. 
 § 105. Notice not necessary to trustee or cestui que trust. 
 
 §§ 106, 107. Voluntary settlements upon wife and children. 
 § 108. When they will not be enf(jrced. 
 
 § 109. Tendency of the rule in the United States. 
 
 § 110. Marriage a valuable as well as meritorious consideration. 
 
 §111. Effect of a seal. 
 § 111 a. New York Statute Law. 
 
 § 73. Having considered who may be the parties to a 
 trust, and what may be the subject-matter of it, it is now to 
 bo considered in what manner a trust may be created, or 
 how it may arise. Trusts are divided in this respect into 
 direct or express trusts, implied, resulting, and constructive 
 trusts. Direct or express trusts are created by the direct or 
 express words of a grantor or settlor. Implied, resulting, 
 and constructive trusts arise by operation of law upon the 
 transactions of the parties, and they will be hereafter dis- 
 cussed. This chapter will treat of the creation of direct or 
 express trusts. In this connection it will be necessary to 
 inquire : (1) how trusts were created in lands at common law 
 prior to the statutes of frauds and of wills; (2) how trusts 
 are created in lands since the statutes ; (3) how trusts may 
 be created in personal property; and (4) the effect of a 
 voluntary conyeyance or declaration of trust. 
 
 § 74. At common law a deed in writing was not necessary 
 to transfer land. What was called a feoffment was the 
 common and earliest mode of conveyance. The feoffment 
 was a short and simple charter, and was accompanied by 
 livery of seizin ; the feoffor went upon the land in the 
 presence of the freeholders of the neighborhood with the 
 charter, and made a manual delivery to the feoffee of some 
 symbolical thing in the name of delivering seizin, or owner- 
 ship and possession of all the lands named in the charter. 
 But not even this deed or charter was necessary. The land 
 
 61
 
 § 75.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 could be conveyed by mere livery of seizin in the presence 
 of the freeholders of the neighborhood, who might be called 
 upon to witness the act. The feoffment and livery of seizin 
 operated upon and transferred the possession, and it barred 
 the feoffor from all future right or possibility of right in the 
 land, and vested an estate in freehold in the feoffee. ^ 
 
 § 75. It has been a mooted question whether at common 
 law uses could be raised by parol, or even by deed without 
 seal, upon a conveyance of lands. ^ But there seems to be no 
 good reason for the doubt. As the estate itself could be 
 transferred without writing, it would seem to follow that 
 uses declared at the time in the presence of witnesses might 
 be effectually established. Mr. Sanders says that in their 
 commencement uses were of a secret nature, and were 
 usually created by a parol declaration. ^ Mr. Lewin says 
 that trusts like uses are in their own nature averrahle, i. e., 
 may be declared by word of mouth without writing, in the 
 absence of a statute requiring it ; as if an estate had been 
 conveyed unto and to the use of A. and his heirs, a trust 
 might have been raised by parol in favor of B.* Lord Chief- 
 Baron Gilbert reconciled most of the conflicting cases by 
 stating the law thus: "At common law a use might have 
 been raised by words upon a conveyance that passed the 
 possession by some solemn act, as a feoffment; but where 
 there was no such act, then it seems a deed declaratory of 
 the use was necessary ; for as a feoffment might be made at 
 common law by parol, so might the uses be declared by 
 parol. But where a deed was necessary for passing the 
 estate itself, it was also requisite for the declaration of the 
 uses. Thus a man could not covenant to stand seized to 
 uses without a deed; but a bargain and sale by parol has 
 
 1 4 Kent, 480, 481 ; 2 Sand. Uses and Trusts, 1-8. 
 
 ' 2 Story, Eq. Jur. § 971 ; Hill on Trustees, 55. 
 
 « 1 Sand, on Uses, 14, 218 (2d Am. ed.). 
 
 * Lewin on Trusts, 41. See Fordyce v. Willis, 2 Bro. Ch. 587; Ben- 
 bow V. Townsend, 1 My. & K. 506 ; Bayley v. Boulcott, 4 Russ. 347; Crabb 
 I'. Crabb, 1 My. & K. 511 ; Kilpin v. Kilpin, id. 520; Bellasis v. Compton, 
 2 Vern. 294 ; Thruxton v. Att. Gen., 1 Vera. 341. 
 62
 
 CHAP. III.] AT COMMON LAW. [§ 75. 
 
 raised a use without." ' Lord Tliurlow observed that "he 
 hud been accustomed to consider uses as averrable; but 
 perhaps when looked into, the cases may relate to feoffment, 
 and not to conveyances by bargain and sale or lease and 
 release. " ^ And Duke says expressly, " that when the things 
 given may pass without deed, then a charitable use may be 
 averred by witnesses; but where the things cannot pass with- 
 out deed, there charitable uses cannot be averred without a 
 deed proving the uses."'* This question is almost purely 
 speculative in the United States, where the statute of frauds 
 is perhaps universally adopted, and all conveyances of land 
 and of interests in land must be by deed acknowledged and 
 recorded; but it may arise when questions arise upon trans- 
 actions prior to the passage of the statute, as it arose in 
 Ohio upon a conveyance before 1810, the time when the 
 statute of frauds was adopted in that State; and it was 
 determined that a trust in land could be created, at common 
 law, by parol,* and as the seventh, eighth, and ninth sec- 
 tions were omitted from the Ohio statute, a trust in real 
 estate may still be created by parol. ^ The same question 
 arose in Connecticut, and it was denied that at common law 
 a trust in lands could be raised by parol. The court said 
 that the rules of evidence as well as the statute prevented 
 it. ^ In some other States the statute, or at least the seventh 
 section of the statute, has not been adopted ; and in those 
 States it has been determined that trusts in land can be 
 proved by parol, as in Texas, '^ North Carolina,^ Tcnnes- 
 
 1 Gilbert on Uses, 270; Adiington v. Cann, 3 Atk. 141. 
 
 2 Fordyce v. Willis, 3 Bro. Ch. 5S7. 
 
 8 Duke on Char. 141 ; Adiington i-. Cann, 3 Atk. 141. 
 
 * Fleming v. Donohoe, 5 Ohio, 250; but see Starr v. Starr, 1 Ohio, 
 321; Ready r. Kearsley, 14 ^lich. 215; Mclntire v. Skinner, 4 Greene, 89. 
 
 fi Harvey v. Gardner, 41 Ohio St. 646. 
 
 • Dean v. Dean, 6 Conn. 287. Contra, Ready v. Kearsley, 14 Mich. 
 215. 
 
 ' Miller v. Thatcher, 9 Tex. 482; Hale v. Layton, 16 Tex. 202 ; Bailey 
 
 8 Fay t^. Fay, 2 Hayw. 131 ; Shelton v. Shelton, 5 Jones, Eq. 292 ; Riggs 
 V. Swann, 6 id. 118; McLaurin v. Fairly, id. 375; Wright r. Cain, 93 N. 
 C. 301 ; Link v. Link, 90 N. C. 235. 
 
 63
 
 § 76.] EXPKESS TKUSTS, ETC. [CHAP. III. 
 
 see,^ and Virginia. ^ In Pennsylvania, under the act of 1799, 
 it was determined that trusts in land might be created by 
 parol. 3 The statute was amended, however, in 1851.^ In 
 Kentucky, the seventh section was omitted; but the courts 
 treat all parol agreements that would create a trust as 
 agreements for the sale or purchase of some interest in land, 
 and therefore void as within the fourth section of the 
 statute.^ In nearly all the other States the statute of frauds 
 was substantially re-enacted at an early day in its full 
 extent, and in those States it has not since been an open 
 question whether parol trusts could be created.^ 
 
 § 76. It must also be observed that if a trust is declared 
 in writing, courts never permit parol proof of a trust to 
 contradict an intention expressed upon the face of the 
 instrument itself,^ for that would be to allow parol evidence 
 
 V. Harris, 19 Tex. 102; Osterman v. Baldwin, 6 "Wall. 116; Leakey v. 
 Gunter, 25 Tex. 400; Grooves v. Rush, 27 Tex. 231; Dunham v. Chat- 
 ham, 21 Tex. 231 ; Creney v. Dupree, 21 Tex. 20 ; Pierce v. Fort, 60 Tex. 
 464, and cases cited. 
 
 1 Thompson v. Thompson, 1 Yerg. 100; McLanahan v. McLanahan, 
 6 Humph. 99; Haywood v. Ensley, 8 Humph. 460; Wilburn v. Spofford, 
 4 Sneed, 705. 
 
 2 Bank of United States v. Carrington, 7 Leigh, 576 ; Walraven v. 
 Lock, 2 P. & H. 549; Lockwood v. Canfield, 20 Cal. 126; Hidden v. Jor- 
 dan, 21 Cal. 92. 
 
 3 German v. Gabbald, 3 Binn. 302 ; Wallace v. Duffield, 2 S. & R. 521 ; 
 Slaymaker t', St. Johns, 5 Watts, 27 ; Murphy v. Hubert, 7 Barr, 420 ; 
 Tritt V. Crotzer, 13 Penn. St. 452; Wetherell v. Hamilton, 15 id. 195; 
 Money v. Herrick, 18 id. 128; Blyholder v. Gilson, id. 134. See Freeman 
 V. Freeman, 2 Pars. Eq. 81. 
 
 * Shoofstall V. Adams, 2 Grant's Cas. 209 ; Barnett v. Dougherty, 32 
 Pa. St. 371. 
 
 6 Parker v. Bodley, 4 Bibb, 102 ; Childs v. Woodson, 2 Bibb, 72. 
 
 « See Browne's Statute of Frauds, §§ 79-82 ; Anding v. Davis, 38 Miss. 
 574; Harper v. Harper, 5 Bush, 177 ; Wolf v. Corley, 30 Md. 356; Eaton 
 V. Eaton, 35 N. J. L. 290; Knox v. McFarren, 4 Col. 586; Thomas v. 
 Merry, 113 Ind. 83; McGinness v. Barton, 71 Iowa, 644; Hain v. Robin- 
 son, 72 Iowa, 735 ; Ingham v. Burnell, 31 Kansas, 333 ; Lawrence v. Law- 
 rence, 14 Oregon, 77. 
 
 ■^ Lewis V. Lewis, 2 Ch. R. 77; Finch's Cas. 4 Inst. 86; Childers v. 
 ChUders, 3 K. & J. 310 ; 1 De G. & J. 482 ; Fordyce v. WilUs, 3 Bro. Ch. 
 64
 
 CHAP. III.] AT COMMON LAW. [§ 76. 
 
 to vary, contradict, or annul a written instrument; nor is 
 it necessary, in order to exclude evidence, that the beneficial 
 estate should be expressly conferred upon the grantee of the 
 legal estate, for a trust cannot be raised Ijy parol if, from 
 the nature of the instrument or from any circumstance of 
 evidence appearing upon the face of it, an intention can be 
 clearly imjilicd of making the holder of the legal estate also 
 the holder of the beneficial estate.^ Thus a trust cannot Ijc 
 proved by parol where a valuable consideration was paid 
 from the grantor's own money. ^ Oral proof cannot be hoard, 
 to engraft an express trust on a conveyance absolute in its 
 terms. ^ (a) Nor will subsequent declarations of the grantor, 
 oral or written, avail for this purpose.* To establish by 
 parol that the grantee in an absolute deed is a trustee, it 
 
 587; Leman v. Whitley, 4 Russ. 423 ; Lloyd v. Inglis, 1 Des. 333 ; Sims v. 
 Smith, 11 Ga. 198; Harris v. Barnett, 3 G rat. 339 ; Dickenson r. Dicken- 
 son, 2 Murph. 279; Steere v. Steere, 5 Johns. Ch. 1 ; Gainus v. Cannon, 
 42 Ark. 503. 
 
 1 Ibid. ; Lewiu, 42, 5th ed. ; Gilbert on Use.s, 56, 57 ; Pilkington r. 
 Bailey, 7 Bro. P. C. 5-;G ; Dean v. Dean, G Conn. 285; Hutchinson v. Tin- 
 dall, 2 Green, Ch. 2.57; Starr v. Starr, 1 Ohio, 321; Movan v. Hays, 1 
 Johns. Ch. 343; Philbrooke v. Delano, 29 IMaine, 410; Clagett v. Hall, 9 
 Gill & J. 80. See notes to Woollam v. Hearn, 2 Lead. Cas. Eq. 404 ; Irn- 
 ham V. Child, 1 Bro. Ch. 02 ; Bartlett v. Pickersgill, 1 Ed. 515. 
 
 2 Ihid. 
 
 ' Kelly I'. Karsner, 72 Ala. 110; Law.son v. Lawson, 117 111. 98 ; Green 
 V. Gates, 73 Mo. 122; Hansen v. Berthelson, 19 Neb. 433 ; Cain i-. Cox, 23 
 W. Va. 594 ; Pavey v. American Ins. Co., 50 Wis. 221. 
 
 * Phillips t'. South Park Com'rs, 119 111. 626. 
 
 (a) See Lovett v. Taylor, 54 N. Bank, 164 Mass. 482, 486 ; Raphael 
 
 J. Eq. 311 ; Wood v. Perkins, 57 v. Mullen, 171 Mass. Ill; Ditmars v. 
 
 Fed. Rep. 258 ; Myers r. Myers, 167 Smith, 38 N. Y. S. 1036 ; Beckett y. 
 
 111. 52; Walton v. Follansbee, 165 Allison, 188 Penn. St. 279; Heb- 
 
 111. 4.S0, 486 ; Ilemstreet r. Wheeler, ron v. Kelly, 75 Miss. 74 ; First Xat. 
 
 100 Iowa, 290; Wei.sham r. Hooker P.ank r. Fri.-s, 121 X. C. 241. But 
 
 (Okl.),.^4 Pac. 464. A conveyance although an ab.solute deed may be 
 
 of personal property, absolute in proved to be a conveyance by way of 
 
 form, may always be shown by mortgage or trust, a recital that an 
 
 clear evidence to have been made iti assignment is in trust is conclusive, 
 
 trust or by way of security. INI in- See Caldwell v. Fulton, 31 I'l-nn. St. 
 
 chin V. Minchin, 157 Mass. 2G.") ; 47 -t : 72 Am. Dec. 760 ; McDermith 
 
 Riley w. Hampshire County National v. Voorhees, 16 Col. 402. 
 
 VOL. 
 
 I. — 5 65
 
 § 77.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 must bo shown that the whole or a part of the purchase- 
 monoy was not his, or that fraud, artifice, solicitation, or 
 persuasion entered into the induceraents for executing the 
 deed. A mere breach of a parol agreement is not enough to 
 create a trust. ^ A parol trust is not, however, an absolute 
 nullity in any case, but rests in the election of the trustee in 
 those cases where the cestui cannot enforce it. The courts 
 will protect the trustee in the execution of the trust if he 
 chooses so to do, and as far as possible will protect the 
 beneficiaries in the enjoyment of the fruits of its execution. ^ 
 But where A. agreed to purchase land for B., and purchased 
 it and took an absolute title to himself, it was held that B., 
 not being privy to the deed, was not bound by it, and might 
 prove a trust by parol. ^ And where one holds lands in 
 secret trust to defraud creditors, a subsequent parol agree- 
 ment by which the land is to be held in trust for the 
 creditors, <fcc., will be good.^ 
 
 § 77. If a trust is once effectually created by parol, it 
 cannot subsequently be revoked or altered by the party 
 creating it, for it is governed by the same rules that govern 
 trusts created by writing.^ And if a parol trust has been 
 executed it cannot be revoked, and if money has been paid 
 upon it, it cannot be recovered back.^ The declarations of 
 the grantor, to create a trust, must be prior to, or con- 
 temporaneous with, the conveyance, for it would be against 
 reason and the rules of evidence to allow a man who has 
 parted with all interest in an estate to charge it with any 
 
 1 Ilollinshead's App., 103 Penn. St. 158. 
 
 2 Karr v. Washburn, 56 Wis. 303. 
 
 3 Strong V. Glasgow, 2 Murph. 289 ; Squire's App., 70 Penn. St. 266. 
 * Langsdale v. Woollen, 99 Ind. 575. 
 
 6 Kilpin V. Kilpin, 1 :\I. & K. 531 ; Adlington v. Cann, 3 Atk. 151 ; 
 Freeman v. Freeman, 2 Pars. Eq. 81 ; Crabb v. Crabb, 1 M. & K. 51 1 ; 
 Walgrave v. Tibbs, 2 K. & J. 313 ; Lee r. Ferris, 2 K. & J. 3.57 ; Russell v. 
 Jackson, 10 Hare, 204 ; Lomax v. Ripley, 3 Sm. & Gif. 48; Inre Dunbar, 
 2 Jon. & La. 120 ; Brown v. Brown, 12 Md. 87 ; Greenfield's Est., 14 Penn. 
 St. 489; Kirkpatrick v. IMcDonald, 11 id. 387; Tritt v. Crotzer, 13 id. 4.j1. 
 
 6 Eaton V. Eaton, 35 N. J. L. 290. 
 66
 
 CHAP. III.] AT COMMON LAW. [§ 77. 
 
 trust or inciiml)rancc after such conveyance ;^ (a) nor Ciin 
 the cestui que trust give his own dechirations iu evidence to 
 create a trust in his favor; but where parties may be wit- 
 nesses, he can testify to the facts like any other witness; 
 and if the circumstances arc such as to raise a resulting or 
 implied trust npon the conveyance, the person entitled to 
 such beneficial interest has the right at any time to declare 
 the trust. 2 The declarations of a trustee can bo given in 
 evidence to show how he held the estate;** that is, in those 
 States where the trust may be proved by parol. But these 
 declarations must be clear and explicit, and point out with 
 certainty both the subject-matter of the trust and the person 
 who is to take the beneficial interest. Casual and indefinite 
 expressions of mere inchoate intentions, not carried into 
 effect, are insuificient to raise a trust.* If a pension from 
 the government is granted to A., a trust cannot be raised by 
 parol in favor of B., for a pension is conferred as an honor, 
 and is founded u])on the personal services and merits of the 
 annuitant.^ 
 
 1 Adlington v. Cann, 3 Atk. 145; Walgrave v. Tibbs, 2 K. & J. 313; 
 Lee t'. Ferris, 2 K. & J. 357; Russell v. Jackson, 10 Hare, 201; Loniax v. 
 Ripley, 3 Srn. & Gif. 48 ; Brown v. Brown, 12 j\Id. 87 ; In re Dunbar, 2 
 Jon. & La. 120; Tritt v. Crotzer, 13 Tenn. St. 451 ; Ivory v. Burns, 50 id. 
 303; Bennett v. Fuliner, 49 Penn. St. 155; Knox v. McFarren,4 Col. 586. 
 See Chapman v. AVilbur, 3 Oregon, 320, for a particular case. 
 
 '^ Bellasis v. Coin[)ton, 2 Vern. 204; Lee v. Iluntoon, 1 lIofE. Ch. 447; 
 Harris v. Barnett, 3 (Irat. 339 ; Reid v. Reid, 12 Rich. Eq. 213. 
 
 * Ambrose v. Ambrose, 1 P. Wms. 322 ; Gardner v. Rowe, 2 S. & S. 
 346 ; 5 Russ. 258 ; Wilson v. Dent, 3 Sim. 385 ; Willard v. Willard, 56 
 Penn. St. 119; Dollinger's App., 71 id. 425. 
 
 * Kilpin V. Kilpin, 1 U. & K. 520 ; Benbow v. Townsend, 1 id. 500 ; 
 Bayley v. Boulcott, 4 Russ. 345; Harrison v. McMeunoniy, 2 Edw. Ch. 
 251; Slocumb v. Mar.shall, 2 Wash. C. C. 398; Sidle v. Walters, 5 AVatts, 
 389; Mercer v. Stock, 1 S. & ^l. Ch. 479; Hurst r. lAIcXeil, 1 AVash. C. C 
 70; Smith v. Patton, 12 AV. Va. 511; Childs v. Wesleyan Cemetery Ass., 
 4 Mo. App. 74. 
 
 6 Fordyce v. Willis, 3 Bro. Ch. 587. 
 
 (n) Boyd r. Boyd, 103 111. Oil ; Phillips v. Sherman (Texas), 39 S. 
 Burling r. Newlands, 112 Cal. 476; W. 187. 
 Boyd V. Cleghorn, 94 Va. 780; 
 
 67
 
 § 78.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 § 78. The seventh section of the statute of frauds enacted 
 that all declarations or creations of trusts or confidences in 
 any lands, tenements, or hereditaments, " shall be manifested 
 and proved by some writing signed by the party who is by 
 law to declare such trust, or by his last will in writing," or 
 else they shall be utterly void and of none effect. 
 
 Sec. 8. Provided always that where any conveyance shall 
 be made of any lands or tenements by which a trust or con- 
 fidence shall or may arise or result by the implication or 
 construction of law, or be transferred or extinguished by an 
 act or operation of law, then and in every such case such 
 trust or confidence shall be of like force as the same would 
 have been if this statute had not been made, anything here- 
 inbefore to the contrary notwithstanding. 
 
 Sec. 9. All grants or assignments of any trust or confi- 
 dence 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 utterly void and of none effect. ^ 
 
 1 29 Car. II. c. 3, §§ 7, 8, 9. 
 
 In Arkansas, Florida, Georgia, Illinois, Maryland, jNIissouri, New Jer- 
 sey, and South Carolina, the statute of Charles is re-enacted, almost in 
 ■words, and the trust or confidence must be " manifested or proved by 
 some writing signed by the party." 
 
 In Alabama, California, Maine, Massachusetts, Michigan, Mississippi, 
 New Hampshire, Rhode Island, Vermont, and Wisconsin, " the trust 
 must be created or declared by instrument in writing signed by the party 
 creating or declaring the same." 
 
 In New York, the seventh section was re-enacted ; but in the revised 
 statutes it was enacted " that the trust should be created or declared by 
 deed or conveyance in writing," signed, etc. ; but in ISGO it was enacted 
 " that any writing signed by the parties " should be sufficient. 
 
 In Pennsylvania, the seventh section was not enacted, and trusts could 
 be created and proved by parol; but in 1856 the seventh section was sub- 
 stantially enacted. 
 
 In Texas, North Carolina, Tennessee, Virginia, Connecticut, Delaware, 
 Kentucky, Indiana, and Ohio, the seventh section does not seem to be re- 
 enacted. See ante, § 75. 
 
 In Iowa, declarations and creations of trust or powers in relation to real 
 estate must be executed in the same manner as deeds of conveyance. 
 
 The ninth section seems to be in force in all the States. 
 68
 
 CHAP. III.] 
 
 STATUTE OP FRAUDS. 
 
 [§79. 
 
 § 79. Wherever this statute or the substance of the statute 
 is in force, express trusts in realty cannot be proved by 
 paroL' {(i) In suits to establish or enforce trusts in real 
 
 1 Gerry v. Stiuison, 60 Maiue, ISO; Stevenson i-. Crapnell, 111 111. 19. 
 
 («) See Ducie v. Ford, 138 U. S. 
 5S7 ; jNIoran v. Somes, 154 Mass. 
 200; Fitzgerald v. Fitzgerald, 1(J8 
 Ma.ss. 488; Taft v. Dimond, 16 R. I. 
 584 ; Ward v. Ward, 59 Conn. 188, 
 19G; Wentworth v. Sliibles, 89 
 Maine, 107 ; Bickford v. Bickford, 
 08 Vt. 525; McKee r. Griggs, 51 
 N. J. Eq. 178 ; Blackburn v. Black- 
 burn, 109 N. C. 488; Keller v. 
 Strong, 104 Iowa, 585 ; Pearson v. 
 Pearson, 125 lud. 341 ; Moore v. 
 Horsley, 156 111. 36; Ellis v. Hill, 
 162 id. 557; Kyle v. Wills. 106 id. 
 501, 511 ; Dick v. Dick, 172 id. 578; 
 McDearmon v. Burnhani, 158 id. 55; 
 Cameron r. Nelson (Xeb.), 77 X. W. 
 771 ; Thomas t'. Churchill, 48 Neb. 
 266; You Trotha v. Bamberger, 15 
 Col. 1; Farrand v. Beshoar, 9 Col. 
 291; Simons v. Bedell (Cal.), 55 
 Pac. 3 ; Rogers v. Ramey, 137 Mo. 
 598; Dover v. Rhea, 108 N. C. 88; 
 Brock V. Brock, 90 Ala. 80; Guntert 
 V. Guntert (Tenn.), 37 S. W. 890 ; 
 Levis V. Kengla, 8 App. D. C. 230; 
 
 169 U. S. 234. 
 
 A trust in personal property may 
 be created and proved by parol, but 
 an express trust in land cannot be 
 so created. Chase v. Perley, 148 
 Ma.ss. 289; Taft v. Stow, 107 Ma.ss. 
 303; Bath Savings Inst'n v. Ilathorn, 
 88 Maine, 122 ; Ilirsh i-. Auer, 146 
 K. Y. 13; Godschalk r. Fulmer, 
 
 170 111. 04; Pitney v. Bolton, 45 
 N. J. Eq. 639 ; Eipper r. Benner, 
 113 Mich. 75; Bedell v. Scoggins 
 (Cal), 40 Pac. 954; Ray i;. Sim- 
 
 mons. 11 R. I. 206; Gadsden v. 
 Whaley, 14 S. C. 210. But although 
 an express trust in land cannot be 
 established by parol, a parol agree- 
 ment to hold the proceeds of a sale 
 of the land in trust for another, if 
 based upon a sufficient considera- 
 tion, is valid. Worley v. Sipe, 111 
 Ind. 238; Thomas v. Merry, 113 id. 
 83; Talbott v. Barber, 11 Ind. App. 
 1, 7. Laud subsequently bought 
 with trust property will be im- 
 pres.sed with the tru.st. Cobb v. 
 Knight, 74 Maine, 253. No special 
 form of words is necessary to create 
 an express trust. Gisborn v. Charter 
 Oak L. Ins. Co., 142 U. S. 326; 
 O'Rourke v. Beard, 151 Mass. 9; 
 MuUins V. Mullins, 79 Hun, 421; 
 People V. Powers, 83 id. 449; Stein- 
 hardt v. Cunningham, 130 N. Y. 
 292. Delivery is necessary to make 
 a signed declaration of trust bind- 
 ing. Govin V. De Miranda, 30 
 N. Y. S. 550; 27 id. 1049. 
 
 An express trust can only be 
 created by conveying some estate 
 or interest to the intended trustee. 
 Nichols r. Emery, 109 Cal. 323. 
 Such a trust is necessarily e.\clusive 
 of any implied trust. Mayfield v. 
 Forsyth, 104 111. 32 ; Coleman v. 
 Parran, 43 W. Va. 737. 
 
 The statute of frauds does not 
 apply when a trust results by opera- 
 tion of law. Valentine i'. Richardt, 
 126 N. Y. 272; Sanford v. Sanford, 
 139 U. S. 042; Hudson r. White, 17 
 R. I. 519; Von Trotha r. Bamber- 
 69
 
 § 79.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 estate parol proof is insufficient. ^ They must be manifested 
 or proved by some writing, signed by the party to be charged 
 with the trust. They need not he created and declared in 
 writing, but only manifested or proved by writing; for if 
 there be written evidence of the existence of the trust, the 
 dano-er of parol evidence, against which the statute was 
 directed, is effectually removed.^ It may be questioned 
 whether it was not the intention of the statute that the 
 creation or declaration itself should be in writing; for the 
 ninth section enacts 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 his last will or 
 devise;" but whatever may have been the actual intention 
 of the legislature, the construction put upon the clause is 
 now firmly established.^ A mere admission in writing that 
 parol promises to hold the land in trust were made at the 
 time of the conveyance is not enough to give life to the trust.* 
 
 1 Todd V. Munson, 53 Conn. 579. It is to be remembered, however, 
 that in suits to enforce contracts, correct mistakes, and punish or prevent 
 frauds, it may be necessary to show incidentally an express trust by parol. 
 Id. 592. And so a parol trust may be proved in order to show that the 
 apparent owner has no interest in the land which equity will subject to 
 the lien of a judgment. Hays v. Reger, 102 Ind. 524. 
 
 2 Forster v. Hale, 3 Ves. Jr. 707; 5 Ves. 315; Smith v. Mathews, 3 De 
 G., F. & J. 139; Randall v. Morgan, 12 Ves. 74; Unitarian Society v. 
 Woodbury, 14 Me. 281 ; Steere v. Steere, 5 Johns. Ch. 1 ; Movan v. 
 Hays, 1 id. 339; McCubbin r. Cromwell, 7 Gill & J. 157; Barrell v. Joy, 
 16 Mass. 221 ; Pinney v. Fellows, 15 Vt. 525 ; Rutledge v. Smith, 1 Mc- 
 Cord, Ch. 119; Johnson v. Ronald, 4 Munf. 77; Hutchinson v. Tindall, 
 2 Green, Ch. 357; Lane v. Ewing, 31 Mo. 75; Safford v. Rantoul, 12 
 Pick. 233 ; Gibson v. Foote, 40 Miss. 788 ; Reid v. Reid, 12 Rich. Eq. 
 213. Numerous other cases might be cited ; but the rule is so well estab- 
 lished that it is not necessary. 
 
 3 Lewin on Trusts, 45 ; Black v. Black, 4 Pick. 236. 
 * Scott V. Harris, 113 111. 447. 
 
 ger, 15 Col. 1; Roby v. Colehour, a trust from the parties' acts and 
 
 135 111. 300; Myers v. Myers, 167 relations not dependent merely 
 
 111. 52; Ryan v. O'Connor, 41 Ohio upon oral evidence. McCahill v. 
 
 St. 368; Davis v. "Whitehead [1894], McCahill. 32 X. Y. S. 836 ; Sherley 
 
 2 Ch. 133 ; or when equity imposes v. Sherley, 97 Ky. 512. 
 70
 
 CHAP. III.] STATUTE OF FRAUDS. [§ 81. 
 
 It is well established that the interest of the cestui que trust 
 in land cannot be conveyed by parol.' 
 
 § 80. In many of the United States the words of the 
 seventh section are replaced by words to the effect that "the 
 trust must be created or declared by an instrument in writ- 
 ing signed by the party;"2(a) and the question has arisen 
 whether this is a change of the law as established under 
 the words of the original statute of frauds. 
 
 § 81. The question has not been directly adjudged in a 
 reported case raising the exact point; but it has arisen 
 incidentally before the courts, and the intimations are that 
 these words do not change the law, and that "created and 
 declared" are equivalent to "manifested and proved." In 
 practice, the great majority of trusts are not created by a 
 deed or conveyance of land, but they arise from the trans- 
 actions and agreements of parties ; and if these transactions 
 or agreements are evidenced in writing, the trust is suffi- 
 ciently created, declared, manifested, or proved. Thus Mr. 
 Justice Bennett, in Vermont, where the words are "created 
 and declared by instrument," said, that "our statute is the 
 same in effect as the English statute. "^ And Mr. Justice 
 Story said, that "in his opinion, there was no substantial 
 difference between the Massachusetts statute of frauds " 
 (which is in substance the same as the statute of Vermont) 
 "and the statute of 29 Car. II. c. 3; and such is the conclu- 
 sion to which I have arrived upon an examination of these 
 statutes."* And in Wisconsin, where the statute is the 
 same as the statutes of Massachusetts and Vermont, it was 
 held that an express trust need not be declared in express 
 terms; that it is sufficiently declared or created if shown by 
 any proper written evidence, such as an answer to a bill in 
 
 1 Ricliards v. Richards, 9 Gray. 313 ; Smitli v. Burnham, 3 Siiran. 435. 
 
 2 See ante, § 78. note. Ribb v. Hunter, 79 Ala. 351. 
 8 Pi 11 nock V. Clou^h, 17 Vt. .508. 
 
 * Jeukins v. Eldredge, 8 Story, 29i. 
 
 (a) See 1 Ames on Trusts (^d ed.), 176, n. 
 
 71
 
 § 81.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 equity, note, letter, or memorandum, disclosing facts which 
 create a fiduciary relation.^ In New York, the words of the 
 statute were that " the trust should be created or declared 
 by deed or conveyance in writing." In relation to this Mr. 
 Justice Strong said, that " the definition of the term convey- 
 ance given in the Revised Statutes ^ comprehends a declara- 
 tion of trust, although not under seal, as it is an instrument 
 by which the title to such estate may be affected in law or 
 equity. " ^ In another case, Chief-Justice Ruggles said : 
 "The statute prescribes no particular form by which the 
 trust is to be created or declared. Under our former 
 statute, in relation to this subject, it was only necessary 
 that the trust should be manifested in writing, and there- 
 fore letters from the trustee disclosing the trust were suffi- 
 cient; such is the law of England.* Our present statute 
 requires that the trust should be created or declared by deed 
 or conveyance in writing, subscribed by the party creating or 
 declaring the trust ;^ but it need not be done in the form of 
 a grant. A declaration of trust is not a grant. It may be 
 contained in the reciting part of a conveyance. Such a 
 recital in an indenture is a solemn declaration of the exist- 
 ence of the facts recited ; and if the trustee and the cestui 
 que trust are parties to the conveyance, the trust is as well 
 and effectually declared in that form as in any other. "^ (a) 
 Upon sound reason, then, and upon the decided cases, it 
 would seem that the peculiar form of words in some of the 
 statutes of the American States has not altered the general 
 rule, as established under the English statute ; and that the 
 same evidence would be generally received in the United 
 States to establish a trust, as in England.^ 
 
 1 Pratt V. Ayer, 2 Chand. 265. ^ i R. S. 762, § 38. 
 
 ^ Corse V. Leggett, 25 Barb. 394. 
 
 * Stat. 29 Car. 11. c. 3, § 7; Forster v. Hale, 3 Ves. Jr. 696. 
 ^ The act of 1860 now makes the statute of New York conform in 
 words to the statutes of the other States. Cook v. Barr, 44 N. Y. 158. 
 
 6 Wright V. Douglass, 3 Seld. 569 ; Cook v. Barr, 44 N. Y. 158. 
 
 7 Sheet's Estate, 52 Penn. St. 527 ; Blodgett v. Hildreth, 103 Mass. 
 
 (a) See McDermith v. Voorhees, 16 Col. 402 ; Neill v. Keese (Texas), 51 
 Am. Dec. 746, 757. 
 
 72
 
 CIIAI'. III.] STATUTE OF FRAUDS. [§ 82. 
 
 § 82. There is no purticulur foriualily required or necessary 
 in the creation of a trust. ^ All that is required is written 
 evidence supplying every essential detail of the trust.'-^ In 
 New York, a trust is valid if the intention is clear to create 
 a trust to accomplish one of the purposes named in the 
 statute,^ whether it is stated in the precise words of the 
 statute or not.* But trusts not authorized by the statute 
 are void.^ A scaled paper, delivered with the deed and 
 mentioned in the deed as part of it, is a part of it, even 
 thouLdi the instructions were that the sealed document 
 should not be oi)ened until after the death of the grantor.^ 
 Any agreement or contract in writing, made by a person 
 having the power of disposal over i)roperty, whereby such 
 person agrees or directs that a particular parcel of property 
 or a certain fund shall be held or dealt with in a particular 
 manner for the benefit of another, in a court of equity raises 
 a trust in favor of such other person against the person 
 making such agreement, or any other person claiming under 
 him voluntarily or with notice ;'^ (a) and the statute of frauds 
 
 486. !Mr. Browne, in his able treatise upon the Statute of Frauds, cites 
 the case of Jaques v. Hall, where the Supreme Judicial Court of Massa- 
 chusetts, notwithstanding the words of the Massachusetts statute, con- 
 sidered an entry in a private memorandum book of the trustee, setting 
 fortli clearly a previous transaction by which he had become trustee, as a 
 satisfactory declaration of trust. There was other evidence; and, as the 
 case is not put upon this ground, in the printed report, 3 Gray, 194, the 
 court probably chose to rest the decision upon other grounds. In Titcomb 
 V. Morrill, 10 Allen, 15, Mr. Justice Chapnum said it was not nece.ssary to 
 decide the question. See Browne on Statute of Frauds, § 104, 1st ed. 
 
 1 Tyler v. Tyler, 25 Brad. (111.) 339, quoting the text. In a will it is 
 sufficient if the intent is clear. Quinn v. Shields, 62 Iowa, 129. 
 
 2 Dyer's App., 107 Penn. St. 446. 
 8 1 R. S. 728, § .55. 
 
 * Morse v. Morse, 85 N. Y. 53. 
 
 'i Syracuse S. Bank v. Porter, 36 Ilun, 168; Follett p. Badeau, 26 id. 
 253. 
 
 8 Van Cott V. Prentice, 35 Hun, 322. 
 
 ' See § 122 and cases cited; 2 Spence, Eq. 860; Legard v. Hodges, 
 
 (a) Cai-ter v. Gibson, 29 Neb. Ga. 528, 535; Smith's Estate, 144 
 324 ; McCreary v. Gewinner, 103 Penn. St. 428. 
 
 73
 
 § 82.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 will be satisfied if the trust can be manifested or proved by 
 any subsequent acknowledgment by the trustee, as by an 
 express declaration/ or any memorandum to that eliect,''^ or 
 by a letter under his hand,"^ or by his answer in chancery,* 
 
 1 Ves. Jr. 478; Baylies v. Peyton, 5 Allen, 488; Taylor v. Pownal, 10 
 Leigh, 183; Currie v. White, 45 N. Y. 822; Pingre c. Coffin, 12 Gray, 
 28«; Cressman's App., 42 Peun. St. 147; Reed u. Lukeus, 44 id. 200; 
 Conway v. Keuswortliy, 21 Ark. 9; Kuiiun v. Raliun, 15 La. Au. 471 ; 
 Kees V. Livingston, 41 Peun. !St. 113; Paul v. Fulton, 32 Miss. llU; Sey- 
 mour V. Freer, 8 Wall. 202 ; Price v. Reeves, 38 Cal. 457 ; Waddingham 
 V. Loker, 44 Mo. 132; Giddiugs v. Palmer, 107 Mass. 270; Homer v. Ilumer, 
 107 id. 82 ; Price v. Minot, 107 id. 61. But see Kelley v. Bubcock, 49 
 N. Y. 32; Ogden v. Larrabee, 57 111. 389; Lake v. Freer, 11 Brad. (111.) 
 576 ; Freer v. Lake, 115 111. 062 ; Jones v. Lloyd, 117 id. 597 ; Ticlienell 
 V. Jackson, 26 W. Va. 460; Whitcomb v. Cardell, 45 Vt. 24; Pinson v. 
 McGehee, 44 JNliss. 229; Conway v. Cutting, 51 N. H. 408; Jones v. Wilson, 
 60 Ala. 332. An agreement to support the grantor as a substantial part 
 of the consideration of the conveyance creates a secret trust void against 
 existing creditors not otherwise having a sufficient remedy. Funk v. 
 Lawson, 12 Brad. (111.) 229. 
 
 1 Lewin on Trusts, 62; Ambrose v. Ambrose, 1 P. Wms. 321; Crop v. 
 Norton, 10 Mod. 233; Willard v. Willard, 56 Penn. St. 119; Knox v. 
 McFarren, 4 Col. 586; Phillips v. South Park Com'rs, 119 111. 640, 
 quoting the text. 
 
 2 Bellamy v. Bm-row, Cas. tem Talb. 97; Fisher v. Fields, 10 Johns. 
 495 ; Urann v. Coates, 109 Mass. 581 ; Brooke's App., 109 Penn. .St. 
 188. 
 
 s Johnson v. Deloney, 35 Tex. 42 ; Phelps v. Seeley, 22 Grat. 573 ; 
 Montague v. Hayes, 10 Gray, 609; Kingsbury v. Burnside, 58 111.310; 
 Forster v. Hale, 3 Ves. Jr. 696 ; 5 Ves. 308 ; Morton v. Tewart, 2 Yo. & 
 Col. Ch. 67; Bentley v. Mackay, 15 Beav. 12; Childers v. Childers, 1 De 
 G. & J. 482: Smith v. Wilkinson, 3 Ves. 705; O'Hara v. O'Xeill, 7 Bro. 
 P. C. 227; Gardner v. Rowe, 2 S. & S. 346 ; Crook v. Brooking, 2 Vern. 
 106; Steere v. Steere, 5 Johns. Ch. 1. But this case was before the 
 statute. It is not necessary that the trust and its terms should be found 
 in one letter; it is s'nfficient if they appear from any number of letters or 
 writings. iVIcCandless v. Warner, 26 W. Va. 754 ; Loring v. Palmer, 118 
 U. S. 321, construing Michigan law. 
 
 4 Hampton v. Spencer, 2 Vern. 288; Nab r. Nab, 10 Mod. 404 ; 1 Eq. 
 Cas. Ab. 464; Gil. Eq. 146; Cottington v. Fletcher, 2 Atk. 1.55; Ryall r. 
 Ryall, 1 Atk. 59; Wilson v. Dent, 3 Sim. 385; Butler r. Portarlington, 
 1 Conn. & Laws. 1 ; 1 Dr. & W. 20 ; McCubbin v. Cromwell, 7 Gill & J. 
 175 ; JoHPS I'. Slubey, 5 Har. & S. 372. 
 
 74
 
 CILVr. III.] STATUTE OF FRAUDS. [§ 82. 
 
 or by bis allidavit,^ or by a recital in a bond '^ or dced,^ or by 
 a pamplilet* written by the trustees, or by an entry in a bank- 
 deposit book ;^ in short, by any writing in which the fiduciary 
 relation between the parties and its terms can be clearly 
 read.° (a) And if there is any competent written evidence 
 that the person holding the legal title is unly a trusti-e, that 
 will open the door for the admission of parol evidence to 
 exi)lain the position of the parties.^ as where there are 
 entries in the books of the grantee of payments made by 
 him to or on account of the grantor, which payments were 
 consistent only with the fact that the grantee took in trust, 
 he was decreed to be a trustee.^ (b) Nor is it necessary that 
 
 ^Barkworth v. Young, 4 Drew. 1 ; Piuney v. Fellows, 1.5 Vt. 525. 
 
 2 Moorcroft v. Dowding, 2 P. Wms. 314; Wright v. Douglass, 3 Seld. 
 564 ; Gomez t-. Traders' Bank, 4 Saudf. 102. 
 
 3 Deg V. Deg, 2 P. Wms. 412; Selden's App., 31 Conn. 548; Wright 
 V. Douglass, 3 Seld. 564, reversing s. c. 10 Barb. 97. 
 
 4 Barren v. Joy, 16 Mass 221. 
 ^ Barker v. Frye, 75 Maine, 29. 
 
 8 Baylies v. Payson, 5 Allen, 473; Plymouth v. Hickman, 2 Vern. 167; 
 Blake v. Blake, 2 Bro. P. C. 250; Dale v. Hamilton, 2 Phill. 2G0; Orleans 
 V. Chatham, 2 Pick. 29; Hardin v. Baird, 6 Litt. 346; Graham v. Lam- 
 bert, 5 Humph. 595; Gome v. Tradesman's Bank, 4 Sand. 106; Bragg v. 
 Paulk, 42 Maine, 502; Unitarian Society v. Woodbury, 14 id. 281 ; Mc- 
 Cubbin v. Cromwell, 7 Gill & J. 157; Podmore v. Gunning, 7 Sim. 655; 
 Fisher v. Fields, 10 Johns. Ch. 505; Murray v. Glass, 23 L. J. Ch. 126; 
 Paterson v. Murphy, 17 Jur. 298; Raybold v. Raybold, 20 Penn. St. 308; 
 Barron v. Barron, 24 Vt. 375; Steere v. Steere, 5 id. 1 ; Cuyler v. Bradt, 
 Caines' Cas. 326 ; Packard v. Putnam, 57 N. H. 43. 
 
 7 Cripps V. Lee, 4 Bro. Ch. 472; Hollinshed w. Allen, 17 Penn. St. 275; 
 Prevost V. Gratz, 1 Pet. C. C. 366; Morton v. Tewart, 2 Yo. & Coll. Ch. 
 67-77 ; Ilutchins u. Lee, 1 Atk. 447 ; Corse v. Leggett, 25 Barb. 389. But 
 see Horner c. Homer, 107 Mass. 82. 
 
 8 Ibid. 
 
 (a) See Patten v. Chamberlain, chase-money, and delivery of pos- 
 
 44 Mich. 5; Eippery. Beimer, 113 id. session of one of several parcels of 
 
 75; Larrabee v. Hascall, 88 Maine, land included in a parol contract of 
 
 511; Hutchins v. Van Vechten, 140 sale, enable the purchaser to enforce 
 
 N. Y. 115; Tusch v. German S. specific performance as to all the 
 
 Bank, 46 N. X. S. 422 ; Cathcart v. parcels, and the vendor is a trustee 
 
 Nelson, 70 Vt. 317. to the extent of the money paid. 
 
 (i) So part payment of the pur- Bartz v. Paff, 95 Wis. 95, 90, 100. 
 
 75
 
 § 82.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 the letters, memoranda, or recitals should be addressed to 
 the cebtui que trust, or should have been intended when made 
 to be evidence of the trust. ^ A deed of gift to the husband, 
 as "an advancement" to the wife, will create a trust for the 
 wife. It is not necessary that the word " trust " or " trustee " 
 should be used,^ (a) The trust thus proved, however late 
 the proof, will relate back to its creation ; as where a lease 
 was granted to A., who afterwards became a bankru[)t, and 
 theti executed a declaration of trust in favor of B., the jury 
 having found upon an issue out of chancery that A. 's name 
 
 1 Forster v. Hale, 5 Ves. 308; Hutchinson v. Tindall, 2 Green, Ch. 357-, 
 Barrel! v. Joy, 16 Mass. 221 ; Welford v. Beazeley, 3 Atk. 503 ; Browne on 
 Statute of Frauds, § 99 ; Furman v. Fisher, 4 Cold. 626 ; Urann v. Coates, 
 109 IMass. 581. In Steere v. Steere, 5 Johns. Ch. 1, Mr. Chancellor Kent 
 recognized and approved the general proposition that trusts could be 
 proved by letters signed by the party ; but in showing that the letters in 
 that particular case were insufficient to prove a trust, he took notice of the 
 fact that they were not addressed to the cestui que trust, and seemed to in- 
 timate that it was necessary that letters should be so addressed in order to 
 manifest the trust. If the eminent chancellor intended to lay down such 
 a rule, it would seem to be effectually overthrown by the well-considered 
 cases cited above. 
 
 2 Cresswell's Adm'r v. Jones, 68 Ala. 420. 
 
 See Miller v. Sharp, 47 W. R. 268. Berkshire, 175 HI. 243; 2 Harv. L. 
 
 In general, the making of improve- Rev. 28. It is only in equity, and 
 
 ments on another's land does not not at law, that part performance 
 
 create a resulting trust. Bodwell can take a case out of the operation 
 
 V. Nutter, 63 N. H. 446. See Gold- of the statute of frauds. Chicago 
 
 smith V. Goldsmith, 145 N. Y. 313; Att. Co. v. Davis S. M. Co., 142 111. 
 
 Fillsbury— Washburn F. M. Co. v. 171; Cooper v. Thomason, 30 Ore- 
 
 Kistler, .53 Minn. 123; Frick Co. v. gon, IGl; Wittenbrock v. Cass, 110 
 
 Taylor, 94 Ga. 683; Tolleson v. Cal. 1. 
 
 Blackstock, 95 Ala. 510; Smith (a) Packard v. O. C. R. Co., 168 
 
 V. Jeffreys (Miss.), 16 So. 377. Mass. 92; Chadwick v. Chadwick, 
 
 Improvements, if they can ever be 59 Mich. 87 ; infra, § 225, n. When 
 
 relied upon as a partial perform- no trust is declared or beneficiary 
 
 ance, must be substantial, perma- named, and the conveyance is for a 
 
 nent, and made in reliance upon valuable consideration, the word 
 
 the contract. Cooley v. Lobdell, "trustees" used therein is sur- 
 
 153 N. Y. 596, 602; Krauth v. plusage, and does not show a trust. 
 
 Tbiele, 45 N. J. Eq. 407; Duvale Andrews v. Atlanta R. E. Co., 92 
 
 V. Duvale, 54 id. 581 ; Dunn v. Ga. 260. 
 
 7Q
 
 CHAl'. III.] STATUTE OF FRAUDS. [§ 82. 
 
 was used in good faith in the lease as the trustee of D. , it 
 was held that the assignees of A. took nothing in the 
 property.^ But it must clearly ajjpear that the jjarties 
 intended a trust l>y the transaction, and parol evidence is 
 competent to explain .receipts and other papers connected 
 with the case which may Ijc exjdaiued hy parol in other 
 cases.- A mere declaration of inutive, as a grant to A. in 
 order that he may maintain his children, will not create a 
 trust ;^ nor will a mere request of an owner to his heirs to 
 convey land to a person named in the letter expressing his 
 wish.* In case of a deposit in hank in trust for another 
 there must be an intent to pass the beneficial interest during 
 the life of the donor, and not merely a testamentary intent 
 that the person named as cestui shall have the money at the 
 decease of the donor, who retains complete control of the 
 fund during his life.^ The general rule is that a deposit of 
 money in the name of the depositor, in trust for another, 
 transfers the title to the latter.*' Where a savings-bank 
 depositor "in trust" kept the book, but before his death told 
 the beneficiary in substance, " That money I put in the sav- 
 ings bank for you, is yours," a finding that there was a per- 
 fected gift was justified." The question is, Do the facts show 
 
 1 Gardner r. Howe, 2 S. & S. 346; 5 Russ. 2.",8; Plymouth v. Hickman, 
 2 Verii. 167 ; Ambrose v. Ambrose, 1 P. Wms. 322; Wilson r. Dent. 3 Sim. 
 385; Smith v. Howell, 3 Stockt. 349; Ownes r. Ownes, 23 X. J. Ch. 60; 
 McGovern i'. Knox, 21 Ohio St. 547 ; Malin v. Malin, 1 Wend. 625; Steere 
 V. Steere, 5 Johns. Ch. 1 ; Jackson v. Moore, 6 Cow. 706 ; Reid v. Fitch, 11 
 Barb. 399; Reggs v. Swann, 6 Jones, Eq. 115 ; Noble r. Morris, 24 Ind. 
 478; Sime r. Howard, 4 Xev. 473; Reid v. Reid, 12 Rich. Eq. 213; Mc- 
 Laurie v. Partlow, 53 111. 340. 
 
 2 Smith V. Tome, 59 Pfnn. St. 158; Hays v. Quay, id. 263. 
 « Bryan v. Howland, 9S 111. 625. 
 
 * Preston t-. Casner, 104 111. 262. 
 
 ^ Nutt V. Morse, 142 Mass. 1, 3 ; Waynesburg College's App., Ill Penn. 
 St. 1.30; Smith r. Speer, 34 X. J. Eq. 336. 
 
 • Scott V. Harberk, 49 Hun, 202. 
 
 '' AlLjer v. North End Savings Bank, 146 Mass. 418. See Mabie v. 
 Bailey, 95 N. Y. 206, and Boone v. Citizens Bank, 84 N. Y. 83. At the 
 death of the trustee the trust goes to her executor or administrator, and 
 in the absence of notice from the beneficiary to the contrary, he may pay 
 the money to said representative. 
 
 77
 
 82.] 
 
 EXPRESS TKUSTS, ETC. 
 
 [CHAr. III. 
 
 an intent to create a present trust ? And the facts that the 
 grantor drew interest on the deposit, or offered to loan the 
 money after the deposit was made, are not conclusive against 
 a trust. ^ But where A. deposits money in the name of B., 
 "sub. to A.," and A. receives the dividends and keeps the 
 pass-book and draws such portions of the principal for her 
 own use as she chooses, there is no gift to nor trust for B. 
 If there is any trust, it is B. who is trustee for A.^ (a) 
 
 1 Willis V. Smyth, 91 N. Y. 297. 
 
 2 Xorthrop v. Hale, 73 Maine, 71. See Marcy v. Amazeen, 61 X. H. 
 131, retaining control and giving cestui no notice, no trust; and Bartlett 
 V. Remington, 59 N. H. 364, a similar case, an executory trust without 
 consideration, is not enforceable ; and Pope v. Burlington Savings Bank, 
 57 N. Y. 126, where the cestui had no knowledge of the deposit, and the 
 depositor withdrew part of the fund. 
 
 (a) Depositing money in a 
 savings bank in another's name 
 is not conclusive evidence of a gift. 
 Booth V. Bristol County S. Bank, 
 162 Mass. 455 ; Bath Savings Inst'n 
 V. Hathorn, 88 Maine, 122; Cooney 
 V. Ryter, 46 La. An. 883. A bank 
 deposit in another's name, and with 
 his knowledge and assent, may be a 
 valid gift, though the donee is to 
 hold it in trust during the donor's 
 life; if made for the donor's child, 
 such deposit is treated as a gift 
 rather than an advancement. Beaver 
 V. Beaver, 117 X. Y. 421; Cunning- 
 ham V. Davenport, 147 N. Y. 43; 
 Conn. River S. Bank v. Albee, 64 
 Vt. 571; Providence Inst'n v. Car- 
 penter, 18 R. I. 287 ; Miller v. Clark, 
 40 F. R. 15 ; McDonald v. Donald- 
 son, 47 id. 765; Telford v. Patton, 
 144 111. 611 ; Re Atkinson, 16 R. I. 
 413; Patterson's Appeal, 128 Penn. 
 St. 269; Williamson v. Yager, 91 
 Ky. 184 ; Dunlap v. Dunlap, 94 
 Mich. 11; Crook r. First Nat. Bank, 
 83 Wis. 31 ; White v. White, 52 Ark. 
 78 
 
 188. A deposit by A. for "A. or 
 B." does not necessarily show that' 
 B. has an interest as donee, as such 
 a deposit may be merely matter of 
 convenience, hire Bolin, 136 N. Y. 
 177; see Ide v. Pierce, 134 Mass. 260. 
 To constitute a gift in such case 
 there must be a transfer of the 
 fund, or at least a transfer of it to 
 the depositor as trustee for the 
 donee, with the latter's knowledge 
 and acceptance. Sherman v. New 
 Bedford S. Bank, 138 Mass. 581; 
 Scott V. Berkshire County S. Bank, 
 140 id. 157; Alger v. North End S. 
 Bank, 146 id. 418; Noyes v. New- 
 buryport S. Inst'n, 164 id. 583; 
 Cogswell V. Newburyport S. Inst'n, 
 165 id. .524; Henchey v. Henchey, 
 167 id. 77 ; Keniston ^^ Mayhew, 
 169 id. 166; Norway S. Bank v. 
 Merriam, 88 Maine, 146; Fairfield 
 S. Bank v. Small, 90 id. 546; Lee 
 V. Kennedy, 54 N. Y. S. 155; Jones 
 V. Moore (Ky.), 44 S. W. 126; Booth 
 V. Oakland S. Bank (Cal.), 54 Pac. 
 370. When one seeks by a bill in
 
 CHAP. III.] STATUTE OF FRAUDS. [§ 83. 
 
 § 83. The same principles of construction apply to trusts 
 proved by this description of evidence as in other cases ; and 
 the objects and nature of the tru.st must always appear from 
 such writings with sufiicient certainty, and also their con- 
 nection with the subject-matter of the trust. ^ Indeed, courts 
 require demonstration on the latter point; and the trust will 
 not be executed if the precise nature of it, and the particular 
 persons who are to take as cestuis que trust, and the propor- 
 tions in which they are to take, cannot be ascertained. ^ 
 When all these particulars properly appear from writings 
 signed by the party, the trust will be executed ; but if the 
 terms of the trust are collected from several papers, it is 
 not necessary that all of them should be signed, provided 
 they arc so referred to and connected with the paper that is 
 signed that they may be identified and read as genuine 
 papers, and a part of the transaction.^ (a) Nor need there 
 
 ^ Forster v. Hale, 3 Ves. Jr. 70S ; Steere v. Steere, 5 Johns. Ch. 1 ; 
 Abel I'. Radcliff, 13 Johns. 297; Kutledge v. Smith, 1 McC. Ch. 119; 
 Freeport r. Bartol, 3 Greenl. 340; Arms v. Ashley, 4 Pick. 71; Hill oa 
 Trustees, Gl. 
 
 2 Ibid. ; Smith v. Mathews, 3 De G., F. & J. 139 ; Morton v. Tewart, 
 2 Yd. & Col. Ch. 80; Lewin on Trusts, 4'j; Leman v. Whitloy, 4 Russ. 
 423 ; Whelan v. Whelan, 3 Cow. 537 ; Jackson v. Moore, id. 700 ; Reid v. 
 Fitch, 11 Barb. 399; Jones v. Wilson, 6 Ala. 332; Taylor v. Keep, 2 Brad. 
 (111.) 368. 
 
 * Ibid.; Denton r. Davis, 18 Ves. 503 ; Lewin on Trusts, 47 ; Browne 
 on the Statute of Frauds, §§ 105, 350-355. 
 
 equity to establish a trust in a de- terms of the trust, or at least suffi- 
 
 posit in a bank, and to set up a title cient to identify the subject-matter 
 
 adverse to the depositor, the deposi- by writing, and when it is contained 
 
 tor is a necessary party to the suit : in separate papers, these must be 
 
 Gregory v. Merchants' National identified and connected by internal 
 
 Bank, 171 Ma.ss. G7; but the bank is reference. Re Smith; Champ v. 
 
 not. Oppenheimer v. First Nat. Mar.shallsay. 64 L. T. 13; Knowlton 
 
 Bank, 20 Mont. 192. v. Atkins, 134 N. Y. 313; Hamer v. 
 
 As to gifts of insurance policies, Sidway, 124 N. Y. 538; Hannig r. 
 
 choses in action, etc., see 1 Ames Mueller, 82 Wis. 235; Atwater 
 
 on Trusts (2d ed.), 139, 145, 1.35, v. Russell, 40 Minn. 57; Yerkes t-. 
 
 163. Perrin, 71 Mich. 567; Renz v. Stoll, 
 
 (a) The written declaration of 94 id. 377; Eipper v. Benner, 113 
 
 trust must contain the substantial id. 75 ; McAuley's Estate, 184 
 
 9
 
 § 83.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 be an actual subscription of the party's name, if the paper 
 is authenticated by the party as his writing for the purpose 
 of declaring the trust by writing his initials.^ The party 
 whose signature is essential is the party who by law is 
 enabled to declare the trust; and it has been decided, that, 
 whether the property is real or personal, the party enabled 
 to declare the trust is the owner of the beneficial interest, 
 who has therefore the absolute control over the property, the 
 holder of the legal estate being a mere instrument or conduit 
 pipe for him. 2 But if there is an absolute conveyance of the 
 legal title to a supposed trustee, and there is no declaration 
 of a trust prior to or at the time of the conveyance by the 
 grantor, and the cestui que trust attempts to charge the 
 grantee with a trust in respect to the land, he must produce 
 some writing signed by the grantee of the legal title in 
 order to charge him with the trust.^(a) It is only when 
 
 1 Smith V. Howell, 3 Stockt. 349. 
 
 2 Tierney v. Wood, 19 Beav. 330; Donaboe v. Conrahy, 2 Jon. & La. 
 688 ; Lewin on Trusts, 47. 
 
 3 Browne on Statute of Frauds, § 106; Adlington v. Cann, 3 Atk. 145; 
 Wallgrave v. Tebbs, 2 K. & J. 313; Lee v. Ferris, ib. 357; Ptussell v. 
 Jackson, 10 Hare, 204; Lomax v. Ripley, 3 Sm. & Gif. 48; Brown v. 
 Brown, 12 ]\Id. 87; Tritt v. Crotzer, 13 Penn. St. 451; In re Dunbar, 2 
 Jon. & La. 120. 
 
 Penn. St. 75 ; Heidenheimer v. An unsealed declaration of trust 
 
 Bauman, 84 Texas, 174. The in- must be supported by a considera- 
 
 validity of some provisions in a tion, must upon its face be intended 
 
 declaration of trust does not avoid to create a trust, and clearly indicate 
 
 it wholly, when the unobjectionable the beneficiary. Finley v. Isett, 154 
 
 clauses are separable from them. U. S. 561 ; Emerson v. Galloupe, 158 
 
 Culross V. Gibbons, 130 N. Y. 447; Mass. 146; Leslie t;. Leslie, 53 N. J. 
 
 Re Butterfield, 133 N. Y. 473; Kelly Eq. 275; Hart v. Seymour, 147 111. 
 
 V. Nichols, 17 R. T. .306; 18 R. I. 62. 598; Hamilton v. Downer, 152 id. 
 
 (a) A declaration of trust which 651; Carter v. Gibson, 29 Neb. 324; 
 
 is signed only by the trustee does Leeper v. Taylor, 111 Mo. 312; 
 
 not, by its covenants, and the ac- Locke v. Farmers' L. & T. Co., 140 
 
 ceptance of the declaration by the N. Y. 135; Wilcox v. Gilchrist, 85 
 
 beneficiaries, limit their equitable Hun, 1 ; Hamer v. Sidway, 124 
 
 estates under the statute of frauds. N. Y. 538; 57 Hun, 229, 236. 
 Adams v. Carey, 53 N. J. Eq. 334. 
 80
 
 CHAP. III.] ANSWERS IN CHANCERY. [§ 84. 
 
 there is no dispute concerning the existence of a trust, or 
 when the trust arises hy ojicration of law as a resulting or 
 implied trust, that the cestui que trust himself can declare 
 its terms. ^ 
 
 § 84. It remains to consider when and how far trusts may 
 be declared or proved by the answers of parties in chancery. 
 It has been decided that a defendant is bound to answer to a 
 bill suggesting a parol trust, and that a general demurrer ^ 
 would be overruled; but perhaps this doctrine is confined to 
 parol trusts that arise from fraud, accident, or mistake ; for 
 in the case of express trusts, if it can be gathered from the 
 bill that the plaintiff relies upon parol evidence alone, with 
 no circumstances to take it out of the statute, it has been 
 held that the defendant may demur. ^ But the general rule 
 is that if a trust is alleged in a 1)ill it will be presumed 
 to be legally created, i. e., in writing, unless the contrary 
 appears ; therefore it must clearly appear from the bill that 
 the alleged trust rests in parol only, or the demurrer will be 
 overruled.* It has also been decided, that if the bill simply 
 omits to state that the trust is in writing, a demurrer will 
 be overruled; for, as the statute only requires that it should 
 be proved, not created, by writing, the writing is no part of 
 the trust, but only evidence of the trust to be adduced at 
 the hearing.^ In all cases, however, the defendant mai/ 
 answer, and if in his answer he confess the trust without 
 insisting upon the statute of frauds, he will be held to have 
 
 1 Rellasis v. Compton, 2 Vem. 294; Lee v. Huntoon, 1 Iloff. Ch. 447; 
 Harris v. Barnet, 3 Grat. 339; and cases in preceding note. 
 
 2 IMuckleston r. Brown, 6 Ves. 52; Stickland v. Aldridge, 9 Ves. 516; 
 Chamberlain v. Agar, 2 V. & B. 259; Newton v. Pelhara, 1 Ed. 514; 
 Lomax v. Ripley, 3 Sm. & Gif. 48; Peralta v. Castro. G Cal. 354 ; Cot- 
 tington V. Fletcher, 2 Atk. 155; Childers v. Childers, 3 K. & J. 310; 1 De 
 G. & J. 485. 
 
 3 Walker v. Locke, 5 Cush. 01; Wood v. Midgeley, 27 Eng. L. & Eq. 
 206; 5 De G., M. & G. 41 ; Ridgway v. Wharton, 3 id. 677; Barkworth c. 
 Young, 4 Dr. 1. See Skinner v. McDonall, 2 De G. & Sm. 265. 
 
 •» Cozine v. Graham, 2 Paige, 177. 
 6 Davis r. Otty, 33 Beav. 540. 
 VOL. I. —6 81
 
 § 85.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 waived the benefit of the statute, and his answer may be 
 used as a written declaration and proof of the trust, ^ on the 
 ground that the plaintiff is not called upon to introduce 
 evidence, and the trust appears upon the written answer 
 before the court, (a) 
 
 § 85. Resulting and implied trusts that arise from fraud 
 can be proved by parol, although the defendant in his answer 
 denies the trusts and sets up the statute in bar; for such 
 trusts are not within the statute. In cases of express trusts, 
 if the defendant denies them, or if he denies them and at 
 the same time sets up the statute, or if he do not answer at 
 all, only legal evidence or evidence in writing can be given 
 in proof. ^ And if the defendant confesses the parol trusts 
 
 1 Hampton v. Spencer, 2 Vern. 288 ; Nab v. Nab, 10 Mod. 404 ; 1 Eq. 
 Cas. Ab. 404; Gil. Eq. 146 ; Dean v. Dean, 1 Stockt. 425; Whiting v. 
 Gould, 2 Wis. 552; Woods v. Dille, 11 Ohio, 455; Newton v. Swazey, 
 8 N. H. 9 ; Rowton v. Rowton, 1 Hen. & Munf. 91 ; Lingan v. Henderson, 
 
 1 Bland. 236 ; Tarleton v. Vietes, 1 Gilm. 470 ; Stearnes v. Hubbard, 8 
 Greenl. 320 ; Thornton u. Henry, 2 Scam. 219 ; School Trustees v. Wright, 
 12 111. 432; McCubbin v. Cromwell, 7 Gill & J. 157; Kinzie v. Penrose, 
 
 2 Scam. 250; Talbot v. Bowen, 1 A. K. Marsh. 436; Albert v. Ware, 2 
 Md. Ch. 169, 6 Md. Ch. 66; Chitwood v. Brittain, 1 Green, Ch. 450; 
 Baker v. Hollabaugh, 12 Ark. 322; Cozine v. Graham, 2 Paige, 177; 
 Tilton V. Tilton, 9 N. H. 386; Switzer v. Skiles, 1 Gilm. 529; Allen v. 
 Chambers, 4 Ired. Eq. 125; Hall v. Hall, 1 Gill, 383; McLaurie v. Part- 
 low, 53 111. 340. 
 
 2 Trapnal v. Brown, 19 Ark. 39; Wynn v. Garland, id. 23; Smith v. 
 Howell, Stockt. 349 ; Whyte v. Arthur, 2 Green, Ch. 521 ; Broadness v. 
 Woodman, 27 Ohio St. 353; Matthews v. Denman, 24 id. 615. 
 
 (a) As the character of the trust. The statements of a party who is 
 
 as an express or implied one, de- compelled to answer, either by an- 
 
 pends on the nature of the facts swer in chancery or by deposition, 
 
 which brought it into being, and will not be treated as a declaration 
 
 not on the manner in which its of trust, when the statute of frauds 
 
 existence is proved after its crea- is pleaded in bar. Davis v. Stam- 
 
 tion, the fact that it is fully set baugh, 163 111. 557; Mayfield v. 
 
 forth by the trustee in his answer Forsyth, 164 id. 32 ; Myers v. 
 
 in chancery, does not change a re- Myers, 167 id. 52. 
 suiting trust into an express trust. 
 Warren v. Tynan, 54 N. J. Eq. 402. 
 82
 
 CHAP. III.] ANSWERS IN CHANCERY. [§ 85. 
 
 in his answer, and at the same time sets up the statute in 
 Ijar, he will have the benefit of the statute, and the court 
 will not use the answer as a written declaration and proof 
 of the trust. ^ In one case it was held that a trust appearing 
 from defendant's answer would bo executed by the court 
 although it was entirely different from the trust alleged in 
 the bill ;2 but this case has not been followed. In a late case 
 where a bill was filed setting forth a fraud and asking to 
 have a resulting trust declared and a deed set aside, and the 
 defendant confessed an express trust by parol, and offered to 
 execute it. Chancellor Vroom said, "I am inclined to believe 
 that if the present complainant had filed a bill claiming this 
 deed to be a deed of trust, and praying that it might be so 
 decreed according to the original intention of the parties, 
 the answer of the defendant admitting the trust would have 
 been good evidence of it. It would have amounted to a 
 sufficient declaration of trust. But it would seem to be 
 different when a complainant seeks on the ground of fraud 
 to set aside a deed absolute on its face, and confessedly 
 without any consideration paid ; for, to suffer a defendant in 
 
 1 Dean v. Dean, 1 Stockt. 425; Whiting v. Gould, 2 Wis. 552. The 
 proposition in the test was long a disputed poiut. It was apparently held 
 that, as the defendant by his answer had admitted the trust, the plaintiff 
 was not called upon to introduce any evidence. There was no danger of 
 fraud and perjury ; as the court had the defendant's statement of a trast 
 in writing under oath, and as equity takes hold of a party's conscience, he 
 ought to be held to execute the trust which he confesses, notwithstanding 
 the statute. On the other hand, in bills for the specific performance of 
 a parol contract for the sale of lands, the defendant was held not bound 
 to execute the contract if he set up the statute, although he confessed the 
 contract in his answer. There would seem to be no reason for a different 
 rule in the two cases; and since it is now established that a defendant 
 may demur to a bill that on its face alleges a mere parol trust, it would 
 seem to follow that the confession of a defendant should not be used to 
 override a positive rule of law. The two cases cited establish the propo- 
 sition of the text, and it is presumed that the same rule would be held in 
 all the United States. It is a question of pleading and practice, and it is 
 considered here only incidentally in considering how trusts may be cre- 
 ated under the statute of frauds. The reader will find a full discussion 
 of the question in Story's Eq. Pleading, §§ 765-768. 
 
 2 Hampton v. Spencer, 2 Vern. 288. 
 
 83
 
 § 86.] EXPKESS TRUSTS, ETC. [CHAP. III. 
 
 such case to come in and avoid the claim by setting up a 
 trust Avould be to permit him to create a trust according to 
 his own views, and thereby prevent the consequences of a 
 fraud. "^ It must be observed, that if the answer of the 
 trustee is used to prove the trust, the terms of the trust 
 must be gathered from the whole answer as it stands, for 
 one part of the answer cannot be read and another part 
 rejected. If, therefore, the plaintiff read the answer in 
 proof of the trust, he must at the same time read the par- 
 ticular terms of the trust as therein stated. ^ (a) In States 
 where the statute of frauds is not in force, trusts may be 
 proved by parol, in opposition to the defendant's answer 
 denying them. 
 
 § 86. Personal chattels are not within the terms of the 
 statute, and trusts in personal property may be declared and 
 proved by parol, though Mr. Eden said that " he had not been 
 able to find an instance of a declaration of trust of personal 
 property, evidenced only by parol, having been carried into 
 execution." ^ And certainly the English cases usually referred 
 to do not establish the proposition in express terms.^ There 
 
 ^ Hutchinson v. Tindall, 2 Green, Ch. 357 ; and see Jones v. Slubey, 
 5 Harr. & J. 372; McCubbin v. Cromwell, 7 Gill & J. 157; Haighw. Kay, 
 L. R. 7 Ch. 469. 
 
 2 Hampton v. Spencer, 2 Vern. 288; Nab v. Nab, 10 Mod. 404; Free- 
 man V. Tatham, 5 Hare, 329; Stearnes v. Hubbard, 8 Greenl. 320 ; Lewin 
 on Trusts, 46. 
 
 3 Fordyce v. Willis, 3 Bro. Ch. (n.). 
 
 * Nab r. Nab, 10 Mod. 404, 1 Eq. Cas. Ch. 404, and Jones v. Nabbe, 
 Gil. Eq., are usually cited to sustain the proposition, but they do not. In 
 Crook V. Brooking, 2 Vern. 50, 106 ; Inchiquin v. French, 1 Cox, 1 ; Met- 
 ham V. Devon, 1 P. Wms. 529, and Smith v. Attersoll, 1 Russ. 274, there 
 were written declarations of trust, and the question was as to the effect of 
 the writings, though it was remarked in these cases that trusts of person- 
 alty could be evidenced by parol. The case of Benbow v. Townsend, 1 
 My. & K. 506, was this: A. had loaned £2,000, and taken a mortgage in 
 the name of B., his brother, declaring that he intended it for the benefit of 
 
 (a) The answer must be com- 160 111. 56 ; Waaren v. Tynan, 54 
 plete as a declaration of trust, and N. J. Eq. 402. 
 fully show a trust. "WTiite v. Ross, 
 84
 
 CHAP. III.] PERSONAL PROPERTY. [§ 86. 
 
 does not seem to be any objection, bowcver, to tbc establish- 
 ment of a trust in personal property by parol. Tbc owner in 
 the absence of a statute has entire control of it ; he can sell 
 and transfer it without writing and by parol, and if he can 
 transfer it by parol, there is no reason why he may not by 
 parol transfer it upon such lawful terms, and to such uses and 
 trusts, as he may desire. It has been so ruled in express 
 decisions in the United States.^ "When a person sui juris 
 
 B. After the death of A. his executor brought a bill against B. to obtaia 
 the mortgage, and the question was whetlier the representatives of A. 
 were entitled to the mortgage. It was held that B. was entitled to hold 
 the mortgage, and it was remarked that a trust of personal property was 
 not within the statute of frauds. It will be observed that the mortgage 
 was in writing in the name of B., and that the parol evidence was not 
 used to establish a trust in B., but to rebut a trust resulting to A. from 
 his having pii,id the purchase-money. If A. had taken the mortgage in 
 his own name, but had declared that it was in trust for B., the question 
 would have fairly arisen, whether a parol declaration could create a trust 
 in a mortgage of real estate. Bayley v. Boulcott, 4 Russ. 34G, only es- 
 tablishes the proposition that a paper prepared under the direction of the 
 owner, but which she refused to execute, will not create a trust. But in 
 McFadden v. Jenkyns, 1 Phill. 153, 1 Hare, 458, it was directly held that 
 a parol declaration was sufficient to create a trust in personal property. 
 If there are doubts and difficulty upon the supposed words, the court will 
 give weight to the fact that they were not written to infer that they may 
 not be the deliberate sentiments of the party. Dipple v. Corles, 11 Hare, 
 183; Patersou v. Murphy, id. 91, 9'2. 
 
 1 Hooper v. Holmes, 3 Stockt. 122; Day v. Roth, 18 N. Y. 44>i; Rob- 
 son i;. Harwell, 6 Ga. 589; Higgenbottom v. Peyton, 3 Rich. Eq. 398; 
 Kirkpatrick v. Davidson, 2 Kelley, 297; Gordon v. Green, 10 Ga. 534; 
 Kimball v. Morton, 1 Halst. Ch. 31. See McFadden i'. Jenkyns, 1 Hare, 
 401, 1 Phill. 1.57; Thorpe v. Owens, 5 Beav. 224; George v. Bank of Eng- 
 land, 7 Price, 646 ; Hawkins v. Gordon, 2 Sm. & (iif. 451 ; Peckham i\ 
 Taylor, 3 Beav. 250; Ilunnewell i: Lane, 11 Met. 1G3; Simms v. Smith, 
 11 Ga. 195; Crissman v. Crissman, 23 Mich. 218; Berry v. Norris, 1 
 Drew, 302 ; Maffitt v. Rynd, 69 Penn St. 30; Thatcher v. Churchill, 118 
 Mass. 108; Gerrish v. New Bedford Inst, for Savings, 128 ^lass. 159; 
 Chase v. Chapin, 130 IMass. 128; Davis v. Coburn, 128 Mass. 377; Hell- 
 man V. McWilliams, 70 Cal. 449; Hon v. Hon. 70 Ind. 135; Hunt i: 
 Klliott. SOTnd. 245; Patterson r. Mills, 69 Iowa, 755; Cobb r. Knight, 
 71 Maine, 253; Danser v. Warwick, 33 N. J. Kq. 133; Gilman v. Mc- 
 Ardle, 99 N. Y. 451; Gadsden v. Whaley, 14 S. C.211; Dickersou's 
 App. 115 Penn. St. 198. 
 
 85
 
 § 86.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 orally or in writing explicitly or impliedly declares that he 
 holds personal property m presenti for another, he thereby 
 constitutes himself an express trustee.^ Under these de- 
 cisions trusts may be created by parol in any mere personal 
 property, as in the shares of corporations, although the cor- 
 porations themselves own real estate.^ If one receives notes 
 of another in trust to pay such person's debt, and agrees with 
 creditor to turn over the notes or their proceeds to him, a 
 trust arises.^ So where a fund is received and held to invest 
 for another.* Money or a debt secured by mortgage of real 
 estate is a personal chattel, and a trust in the money or mort- 
 gage debt, and in the mortgage itself, may be created by 
 parol ; ^ and although a parol declaration of trust will not 
 affect land, yet if the land is to be converted into money, and 
 is converted, a parol declaration will bind the proceeds or the 
 money.^ And this will hold though the parol agreement to 
 hold the money in trust is subsequent to the parol trust re- 
 specting the land, no sale by the parol trustee having been 
 contemplated." Mr. Hill says that " it would seem to follow 
 that legacies and annuities, and other sums of money charged 
 on land, do not come within the operation of the statute 
 respecting parol declarations of trusts in land."^ But all 
 chattels real are within the statute, and trusts in them must 
 be evidenced in writing, as in case of freehold or leasehold 
 interests.^ The same remarks are to be made in relation to 
 
 1 Tyler v. Tyler, 25 Brad. (111.) 339. 
 
 2 Porter v. Bank of Rutland, 19 Vt. 410 ; Forster v. Hale, 3 Ves. Jr. 
 696 ; 5 Ves. 308 ; Ashton v. Langdale, 4 De G. & Sm. 402; 4 Eng. L. & 
 Eq. 80 ; Myers v. Perigal, 16 Sim. 533; 14 Eng. L. & Eq. 229; Hilton v. 
 Giraud, 1 De G. & Sm. 183 ; Kilpin v. KUpin, 1 M. & K. 520 ; Wheatley 
 r. Purr, 1 Keen, 551. 
 
 8 Walden v. Karr, 88 111. 49. 
 
 * Clapp V. Emery, 98 111. 523. 
 
 s Bellasis v. Corapton, 2 Vern. 294 ; Benbow v. Townsend, 1 M. & K. 
 510; Childsv. Jordon, 106 Mass. 322; Hackney v. Brooman, 62 Barb. 650. 
 
 « Maffitt V. Rynd, 69 Penn. St. 80 ; Mohn v. Mohn, 112 Ind. 285; Wise- 
 man V. Baylor, 69 Tex. 63. 
 
 ' Thomas v. Merry, 113 Ind. 83. 
 
 8 Hill on Trustees, 58 (n.) ; see note 1, p. 74. 
 
 9 Skett V. Whitmore, Freem. 280; Forster v. Hale, 3 Ves. Jr. 696; 
 
 86
 
 CHAP. III.] PERSONAL PROPERTY. [§ 86. 
 
 parol trusts of personal property that were made in relation 
 to parol trusts of real estate where such trusts are possible.^ 
 The subject-matter of the trust must be clearly ascertained, 
 as well as the purposes of the trust and the persons wlio are 
 to take the beneficial interests. Loose, vague, and indefinite 
 expressions are insufiicient to create tlic trust.^ A mere 
 declaration of a purpose to create a trust is of no value unless 
 carried into effect. A simple promise of a future donation 
 without consideration good or valuable creates no trust that 
 equity can enforce.^ If the trust is once created in writing 
 it cannot be varied by parol, and if it is once created by parol 
 it cannot be altered or varied by other declarations of the 
 trustee ; as where a daughter delivered to her father 87000 
 upon the parol trust that he would secure the money in trust 
 for her and invest it for her sole benefit, and the father made 
 his will giving said notes to two trustees to receive and 
 pay over the income and interest to the daughter during 
 her life, and at her decease to pay the principal to such 
 persons as she by her last will should direct and appoint, 
 and in default of such appointment, to her heirs-at-law : 
 the father died, and his estate turning out insolvent, she 
 brought a bill praying that the notes might be delivered 
 to some person to be appointed by the court as trustee 
 for her. Mr. Justice Wilde, in delivering the opinion of 
 the court, said, " It is very clear that the father, his execu- 
 tor, and his heirs and creditors, are bound by the trust. 
 It was not in the power of the trustee to divest or defeat 
 the trust without the consent of the cestui que trusty except 
 by a sale of the trust property to a bona fide purchaser, for 
 a valuable consideration, and without notice of the trust. 
 Nor could the trustee vary the terms of the trust, or declare 
 
 Riddle v. Emerson, 1 Vern. 108; Ilutchins v. Lee, 1 Atk. 417; Bellasis v. 
 Compton, 2 Vern. 294; Gardner v. Rowe, 5 Russ. 258; Otis i;. Sill, 8 
 Barb. 102. 
 
 1 Ante, § 77, n. 4, p. 60; Ciissman r. Crissman, 23 ^Hch. 218. 
 
 2 Bailey v. Irwin, 72 Ala. 505; a parol trust must be clear, and the 
 evidence of it convincing. 
 
 8 .Ulen V. Withrow, 110 U. S. 119. 
 
 87
 
 § 87.] EXPKESS TRUSTS, ETC. [CHAP. III. 
 
 any new trust, to the prejudice of the cestui que trust, unless 
 with her consent." ^ 
 
 § 87. Under the statutes relating to the execution of last 
 wills and testaments, no parol declaration can take effect as 
 a nuncupative will, except in the case of soldiers in actual ser- 
 vice, and mariners at sea. These persons may, according to 
 the statutes of nearly all the States, make nuncupative wills 
 of their wages and other personal property. It would seem 
 to follow that they can create valid trusts in their wages and 
 other personal property by nuncupative wills so made as to be 
 proved and allowed in the courts of probate, or other courts 
 having jurisdiction in such matters. Personal property may 
 be so given and delivered to one in trust for another for a 
 particular purpose that it will be good as a donatio causa 
 mortis^ and the trust will be executed by courts of equity ; ^ 
 but courts do not favor donations mortis causa, (a) It has 
 been held that a gift, mortis causa, of a fund in trust to be 
 disposed of for benevolent purposes, at the absolute and 
 unlimited discretion of the donee, could not be sustained.^ 
 
 1 Hunnewell v. Lane, 11 Met. 163. 
 
 2 Blunt V. Burrow, 4 Bro. Ch. 75, and Perkins's notes, 1 Ves. Jr. 546, 
 and Sumner's notes ; Moore v. Darton, 4 De G. & Sm. 517, 7 Eng. L. & 
 Eq. 134; Borneman v. Sedlinger, 3 Shep. 429, 8 Shep. 185; Constant v. 
 Schuyler, 1 Paige, 316. And see Tate v. Leithhead, 1 Kay, 658; Ham- 
 brooke v. Simmons, 4 Russ. 25 ; Hill v. Hill, 8 M. & W. 401 ; Drury v. 
 Smith, 1 P. Wms. 404 ; 1 Story, Eq. Jur. § 607. 
 
 3 Dole V. Lincoln, 31 Me. 422. But the court decided the case on the 
 ground: (1) that there was not a sufficient delivery to constitute a good 
 gift mortis causa, and (2) that if the gift had been good in form, the trust 
 
 (a) Upon the question whether a S. W. 561. In an article in 36 
 
 check drawn upon a bank may be Am. L. Reg. n. s. 246, 289, Mr. 
 
 an equitable assignment pro tanto, Luther E. Hewitt maintains, upon 
 
 see Fourth St. Nat. Bank u. Yardley, a review of the authorities, that a 
 
 165 U. S. 634; Re Griffin, [1899] donatio viortis causa may be well 
 
 1 Ch. 408 ; Mclntyre v. Farmers' executed in equity, upon the giving 
 
 Bank (Mich.), 73 N. W. 233; Nib- of a check by the donor, even though 
 
 lack V. Park Nat. Bank, 169 111. the check is not paid or presented 
 
 517 ; Dickinson v. Coates, 79 Mo. before his death. 
 250 ; House v. Kountze (Tex.), 43
 
 CHAP. III.] STATUTE OF WILLS. [§ 90. 
 
 § 88. An attempt was made at one time to hold gifts to 
 charitable uses as excepted from the statute ; but Lord Talbot 
 decided,^ and Lord Ilardwicke aflh-med the decision,^ and 
 Lord Northington said every man of sense must subscribe to 
 it, that a gift to a charity nuist be treated on the same footing 
 with any other disposition,^ 
 
 § 89. In addition to the statute of frauds, which forbids the 
 creation of express trusts in lands unless the trust is evidenced 
 by some writing signed by the party, there are statutes in 
 every State that regulate the execution of wills. By the 
 original statute of frauds, all wills to pass real estate were re- 
 quired to be in writing, signed by the testator, and attested 
 in his presence by three or four witnesses."* This statute has 
 been substantially adopted in all the States, though there is 
 some diversity in the number of witnesses required. By this 
 statute nuncupative wills of personal chattels were not pro- 
 hibited, but they were placed under such regulations that 
 they ceased to be in common use. Written wills of personal 
 property were not required to be attested by witnesses. But 
 in England at the present time, and in most of the United 
 States, a will to pass personal property must be executed with 
 the same formalities, and attested by the same numljcr of 
 witnesses, that are required to wills affecting real estate.^ 
 
 § 90. It follows from these statutes, that no trusts in real 
 or personal estate can be created by any declaration of trust 
 
 for the charity could not be executed on account of its vagueness and 
 uncertainty. 
 
 1 Lloyd V. Spillett, 3 P. Wms. 344; Lewin on Trusts, Gl. 
 
 2 Lloyd V. Spillett, 2 Atk. 150, Barn. 384; Adlington i'. Cann, 3 Atk. 
 150. 
 
 8 Boson V. Stathani, 1 Eden, 513 ; Thayer r. Wellington, 9 Allen, 283. 
 
 * 29 Car. II. c. 3, § 5. 
 
 6 It is not within the general purposes of this treatise to enter into 
 a discussion of the manner of executing wills in England and the several 
 States of the Union. The reader will find the laws of the various States 
 fully and accurately stated in the learned notes of the Hon. J. C. Perkins 
 to 1 Jarman on Wills, pp. 113-135 (4th Am. ed.), as to real estate, and 
 pp. 135-144 as to personal property. 
 
 89
 
 § 91.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 iu a will, unless the will is executed in such form that it can 
 be allowed in the court of probate having jurisdiction, and in 
 such form that it will pass the estate that it is intended to 
 operate upon. Mr. Hill lays down the proposition, that if 
 an instrument containing a declaration of trust by reason of 
 some informality cannot be supported as a will, it may, never- 
 theless, if signed by the party, be a sufficient evidence of the 
 creation of the trust to take it out of the statute.^ And Lord 
 Northington declared his opinion generally, " that a writing 
 signed by the party who has power to make the trust, declar- 
 ing a trust upon the will, is good, though such writing be not 
 attested by three witnesses according to the solemnities of 
 the statute of frauds," '^ But these propositions, in the broad 
 form in which they are stated, are clearly not law. The 
 dictum of Lord Northington stands alone, and the highest 
 authorities are in opposition to it.^ (a) 
 
 § 91. There is one state of facts in which the above propo- 
 sition of Mr. Hill may be good law. If a testator in making 
 his will should declare by way of recital that a certain parcel 
 
 1 Hill on Trustees, 61. Mr. Hill cites NabiJ. Nab, 10 Mod. 401, 1 Eq. 
 Ca. Ab. 401, Gil. Eq. 146. The case was this: " A daughter put into 
 her mother's hands £180, and afterwards made a will, which was duly 
 executed, and appointed her mother executrix, but made no mention of 
 the £180. After making the will she desired her mother to give the money 
 to a third person. After the death of the daughter, this third person 
 brought a bill in chancery, alleging that the mother held this money in 
 trust. The mother admitted the trust in her answer, and set up that she 
 was not to give the money except at her option. The court held that the 
 trust was admitted by the answer, and that the trust should be executed. 
 It will be observed that the question as to a will informally executed did 
 not arise. The question was wholly upon the effect of the defendant's 
 answer in chancery. And the court, as reported in 1 Eq. Cas. Ab. 404, 
 said that if the mother had set up the statute of frauds the trust could 
 not have been carried into effect. 
 
 2 Boson V. Statham, 1 Eden, 514. 
 
 8 Adlington r. Cann, 3 Atk. 151; Muckleston v. Brown, 6 Ves. 67; 
 Stickland v. Aldridge, 9 Ves. 519 ; Puleston v. Puleston, Finch, 312 ; 
 Thayer u. Wellington, 9 Allen, 283 ; Burlington University v. Barrett, 22 
 Iowa, 60. 
 
 (a) See Re Smith ; Champ v. Marshallsay, 64 L. T. 13. 
 90
 
 CHAP. III.] STATUTE OF WILLS. [§ 92. 
 
 of land, or sum of money, was held by him upon trusts therein 
 stated, and the will should be so informally executed that it 
 could not bo proved in a court of probate, still, if it was .signed 
 by him, it would seem to be as good proof of the trust as 
 letters and other memoranda signed by the party and found 
 after his death, (a) In such case the will could have no efi'ect 
 in creating the trust, it would be simply proof in writing of 
 a trust already created and existing at the date of the will. 
 But if the validity of the trust in any way depended upon the 
 effect of the will in transferring the title to the property, the 
 will could not be used in evidence, unless it was itself so 
 executed as to be valid as a will.^ In all cases where trusts 
 originate in a will, the will must be executed according to 
 the statute, or it cannot be used as a declaration and proof 
 of the trusts. (6) 
 
 § 92. Mr. Lewin clearly states the law and gives the 
 reasons, as follows : " We must bear in mind that the abso- 
 lute owner of property combines in himself both the legal 
 and equitable interest, and when the legislature enacts that 
 no devise or bequest of property shall be valid without cer- 
 tain ceremonies, a testator cannot by an informal instrument 
 affect the equitable any more than the legal estate, for the 
 one is a constituent part of the ownership as much as the 
 other. Thus a person cannot, but by will duly signed and 
 attested, give a sum of money originally and primarily out 
 of land ; for the charge is part of the land and to be raised 
 out of it by sale or mortgage.'* And if a testator by will 
 duly signed and attested give lands to A. and his heirs 
 
 ^ Anding v. Davis, 38 Miss. 574. 
 2 Brudenell v. Boughton, 2 Atk. 272. 
 
 (a) This view was approved in cation does not, however, necessarily 
 
 Leslie U.Leslie, 03 N. J. Eq 275,281. affect a trust created contempora- 
 
 (h) An imperfectly executed or neously by a separate instrument 
 
 revoked will is insufficient as proof which is to be executed according 
 
 of a trust thereby created. Davis to the terras of the will. See Kopp 
 
 V. Stambough, 1G3 111. 557 ; Chase v. Gunther, 05 Cal. 63 ; Keith v. 
 
 V. Stockett, 72 Md. 235. Its revo- Miller, 171 111. 64. 
 
 91
 
 § 92.] EXPRESS TRUSTS, ETC. [CHAP. Ill, 
 
 ' upon trust, ' but without specifying the particular trust 
 intended, and then by a paper not duly signed and attested, 
 as a will or codicil, declare a trust in favor of B., the bene- 
 ficial interest under the will is a part of the original owner- 
 ship, and cannot be passed by the informal paper, but will 
 descend to the heir-at-law. ^ Again, if a legacy be be- 
 queathed by a will in writing to A. ' upon trust,' and the 
 testator by parol express an intention that it shall be held 
 by A. upon trust for B., such a direction is in fact a testa- 
 mentary disposition of the equitable interest in the chattel, 
 and therefore void by the statute, which imposes the neces- 
 sity of a written will. If it be said that such expression of 
 intention, though void as a devise or bequest, may yet be 
 good as a declaration of trust, and, therefore, that where 
 the legal estate of a freehold is well devised a trust may be 
 engrafted upon it by a single note in writing; and where a 
 personal chattel is well bequeathed, a trust of it, as excepted 
 from the seventh section of the statute of frauds, may be 
 raised by a mere parol declaration, — the answer is, that a 
 wide distinction exists between testamentary dispositions 
 and declarations of trust. The former are ambulatory until 
 the death of the testator, but the latter take effect, if at all, 
 at the time of the execution. ' The deed,' observed Lord 
 Loughborough, in a similar case, ' is built on the will ; if 
 the will is destroyed, the deed I should consider absolutely 
 gone ; the will without the deed is incomplete, and the deed 
 without the will is a nullity. ' ^ And Mr. Justice Buller 
 observed, ' A deed must take place upon its execution or not 
 at all • it is not necessary for a deed to convey an immediate 
 interest in possession, but it must take place as passing an 
 interest to be conveyed at the execution : but a will is quite 
 the reverse, and can only operate after death. ' ^ We may 
 therefore safely assume, as an established rule, that if the 
 intended disposition be of a testamentary character and not 
 to take effect in the testator's lifetime, but ambulatory until 
 
 1 Adlington v. Cann, 3 Atk. 151. 
 
 2 Habergham v. Vincent, 2 Ves. Jr. 209. 
 8 Ibid. 
 
 92
 
 CHAP, III.] STATUTE OF WILLS. [§ 93. 
 
 his death, such disposition is inoperative, unless it be 
 declared in writing in strict conformity with the statutory 
 enactments regulating devises and bequests."^ (a) 
 
 § 03. There is an additional reason in the United States 
 why a will or testamentary paper informally executed can- 
 not be used as an original declaration of trust. In nearly 
 all the United States no will can be used to prove the trans- 
 fer of any interest, legal or equitable in property of the 
 testator, unless such will has been duly proved, allowed, 
 and recorded, in a court of probate having jurisdiction 
 over it; 2 and if such will is to be used to affect the title to 
 property in any State other than the one where it is origi- 
 nally proved, it must be recorded in such other State ;3 so a 
 court in equity has no jurisdiction over trusts created by 
 the will of a foreigner, a certified copy of which is not filed 
 in the probate court of the jurisdiction where the remedy is 
 sought.* But no will can be proved and allowed in a pro- 
 bate court unless it is duly executed under the statutes in 
 force where it is made. This rule does not interfere with 
 the doctrine that a testator may by his last will refer to and 
 incorporate therein any document or paper which is in 
 actual existence at the time, and is thus made a part of his 
 will.^ In such cases, all such papers must be clearly iden- 
 
 1 Lewin on Trusts, 66 (2d Am. ed.). 
 
 2 Rex V. Netherseal, 4 T. R. 258; 1 Wms. Ex'rs, 172; Strong v. Per- 
 kins, 3 N. II. 517 ; Kittredge v. Fulsome, 8 N. H. 98 ; 2 Redf. on Wills, 
 10; Methain v. Devon, 1 P. Wms. 529 ; Inchiquiu v. French, 1 Cox, 1. 
 And see Mr. Lewin's remarks upon this last case, Lewin on Trusts, 
 p. 49. 
 
 8 Wilson t;. Tappan, 6 Ohio, 172 ; Bailey r. Bailey, 8 Ohio, 239 ; Ives 
 V. Allyn, 12 Vt. 589 ; Campbell v. Sheldon, 13 Pick. 8 ; Campbell i: Wal- 
 lace, 10 Gray, 162; 2 Redf. on Wills, 10. 
 
 * Campbell v. Wallace, 2 Gray, 1G2. 
 
 6 1 Wms. Ex'rs, 289, 200, and notes; Willington v. Adam, 1 V. & B. 
 
 (a) An erroneous recital in a not enable the child to claim such 
 
 will that the testator has by another land under the will or otherwise, 
 
 instrument conveyed certain land to Hunt r. Evans, 131 111. 496; Stodder 
 
 his child as an advancement does v. Hoffmann, 158 111. 486. 
 
 93
 
 § 93.] EXPKESS TRUSTS, ETC. [CKAP. III. 
 
 tified and probated and recorded with the will as a part 
 thereof, and such papers must be in actual existence at the 
 time of making the will. If they are made afterwards, they 
 must be so executed that they may be probated as a revoca- 
 tion of the will, or as a codicil thereto, or they will have no 
 effect ; ^ (a) as where a testator made an absolute devise of 
 an estate, and left a declaration of trust not referred to in 
 the will, and not duly attested, and not communicated to the 
 devisee nor assented to by him in the testator's lifetime, 
 the devisee is entitled to both the legal and beneficial in- 
 terest, because it is a good devise on the face of the will, 
 and the informal declaration of trust cannot be probated or 
 admitted in evidence.^ So, if a testator should devise real 
 
 445 ; Habergham v. Vincent, 2 Ves. Jr. 228 ; Smart v. Prujean, 6 Ves. 560; 
 Goods of Lady Truro, L. R. 1 P. and D. 201 ; Doe v. Walker, 12 M. & 
 W. .591, 600 ; In re Earle's Trusts, 4 K. & J. 673 ; Allen v. Haddock, 11 
 Moore, P. C. 201 ; Croker i-. Hertford, 4 Moore, P. C. 339, 363 ; Thayer 
 V. Willington, 9 Allen, 283. 
 
 1 Adlington v. Cann, 3 Atk. 141-152; Briggs v. Penny, 3 De G. & Sm. 
 547, 3 Mac. & G. 546 ; 8 Eng. L. & Eq. 231 ; Johnson v. Ball, 5 De G. & 
 Sm. 85; Dawson u. Dawson, 1 Chev. 148; Johnson v. Clarkson, 3 Rich. 
 Eq. 305 ; Thayer v. Willington, 9 Allen, 283. How far papers referred 
 to in a will become part thereof may be a very troublesome question. 
 Statutes require last wills to be solemnly attested or witnessed by a cer- 
 tain number of witnesses. Whether papers referred to in the will as in 
 actual existence but not attested by the witnesses can be probated, and 
 if they cannot be probated whether they can have any effect upon the 
 disposition made by the will, or of the construction of it, has not been 
 determined. 
 
 2 Adlington v. Cann, 3 Atk. 141; Stickland v. Aldridge, 9 Ves. 519; 
 Briggs V. Penny, 3 De G. & Sm. 547; 3 Mac. & G. 546; 8 Eng. L. & Eq. 
 231; Wallgrave v. Tebbs, 2 K. & J. 313; Lee v. Ferris, 2 K. & J. 357 ; 
 Russell V. Jackson, 10 Hare, 204; Lomax v. Ripley, 3 Sm. & Gif. 48; 
 Brown v. Brown, 12 Md. 87 ; Thayer v. Willington, 9 Allen, 283; Haber- 
 gham V. Vincent, 5 T. R. 92, 2 Ves. Jr. 204 ; Rose v. Cunningham, 12 
 Ves. 29; Johnson v. Ball, 5 De G. & Sm. 85; Langdon v. Astor, 3 Duer, 
 477; Thompson v. Quimby, 2 Brad. 449; Tucker v. Seaman's Aid Soc, 
 7 Met. 404; /?i re Sothron, 2 Curteis, 831 ; Ferraris v. Hertford, 3 Cur- 
 teis, 468 : Waggstaff v. Waggstaff, 2 P. Wms. 258; Marlborough v. Godol- 
 phin, 2 Ves. Sr. 76. 
 
 (a) See Pay ton v. Almy, 17 R. I. 605. 
 94
 
 CUAP. III.] STATUTE OF WILLS. [^ 04. 
 
 or personal property to A. in trust and state no trusts upon 
 which A. is to hold, no paper not referred to in tlie will, 
 and not duly executed, could be received in evidence to 
 prove the trusts, nor could A. hold the beneficial interest, 
 because he is stamped with the character of a trustee ; but 
 he would hold only the legal title, while the beneficial inter- 
 est would descend or result to the testator's heirs-at-law.^ 
 But if any words in the will itself clearly qualify an abso- 
 lute devise in the will, and show the testator's intent that 
 others should share the property, the devisee holds in trust. ^ 
 
 § 94. Even at common law parol evidence could not be 
 received to convert a devisee under a will in writing into a 
 trustee. In Vernon's Case it was resolved that a devise 
 implies a consideration, and therefore that it cannot be 
 averred or proved by parol to be for the use of another ;3 
 "for that," said Lord Ch. B. Gilbert, "were an averment 
 contrary to the design of the will appearing in the words;"* 
 and in Lady Portington's Case, the court refused to receive 
 parol evidence, not only because of the statute of frauds, but 
 also /rom the nature of the thing. ^ For the same reason, at 
 common law parol evidence of a trust was always inadmis- 
 sible against a legatee under a written will.^ Until a late 
 statute" in England a person appointed executor had the 
 title to all the personal property, and was entitled to take 
 the surplus, after paying debts and legacies, beneficially to 
 
 1 Ibid. ; Muckleston v. Brown, 6 Ves. 52 ; Boson v. Statham, 1 Ed. 
 513. 
 
 3 Major V. Herndon, 78 Ky. 128. 
 
 • Vernon's Case, 1 Coke, R. 4 a. 
 
 * Gilbert on Uses, 162. 
 
 ^ Lady Portington's Case, 1 Salk. 162. It is stated by Jenkins that 
 at common law parol proof might be received to engraft a trust upon a 
 written will. Jenk. 3 Cent. Cas. 26. But by comparing the case cited 
 by Jenkins with the same case in Fitzherb. Ch. Devise, 22, it will be seen 
 that Jenkins was mistaken in the point decided. And see Lewiu on 
 Trusts, 58 (2d Am. ed.). 
 
 « Porey v. Juxon, Nels. 135 ; Fane v. Fane, 1 Vern. 30. 
 
 ' 11 Geo. IV. and 1 W. IV. c. 40. 
 
 95
 
 § 95.] EXPKESS TRUSTS, ETC. [CHAP. IH. 
 
 himself, and no parol evidence was admissible to convert 
 him into a trustee for the heirs or next of kin.^ But the 
 authorities seem to establish that if there was any circum- 
 stance appearing on the face of the will, as the gift of a 
 legacy to the executor, the law presumed that it was not 
 intended that he should take the surplus beneficially; the 
 executor might rebut that presumption by parol evidence,^ 
 when, of course, the next of kin might fortify the presump- 
 tion by opposing parol evidence in contradiction. Where, 
 however, the will itself invested the executor with the char- 
 acter of trustee, as by giving him a legacy "for his trouble," 
 or by styling him a "trustee" expressly, ihQ prima facie 
 title to the surplus was then in the next of kin, and parol 
 evidence was not admissible to disprove the express inten- 
 tion. ^ By the act referred to in England, and by statutes in 
 all the United States, an executor is made prima facie a 
 trustee for the next of kin.* 
 
 § 95. Where an agreement is entered into for a valuable 
 and legal consideration, and a trust is intended, the mere 
 form of the instrument is not \Qrj material ; for if the trust 
 is not perfectly created or executed by the instrument, a 
 court of equity can enforce it as a contract.^ Where a hus- 
 band had treated his wife with extreme cruelty, so that she 
 left him and instituted proceedings for a divorce, and he 
 gave a note to a trustee for his wife, in consideration of her 
 
 1 Langham v. Sandford, 19 Ves. 641 ; White v. Williams, 3 Yes. & B. 
 72 ; Coop. 58. 
 
 2 Walton V. Walton, 14 Ves. 322; Clennell v. Lewthwaite, 2 Ves. Jr. 
 477; Langham v. Sandford, 17 Ves. 442; Lynn v. Beaver, 1 T. & R. 66. 
 
 ^ Rachfield v. Careless, 2 P. Wms. 158 ; Langham v. Sandford, 17 Ves. 
 435; 19 Ves. 641; Gladding t-. Yapp, 5 Mad. 42; White v. Evans, 14 
 Ves. 21 ; Walton v. Walton, id. 322 ; Read v. Steadman, 26 Beav. 495. 
 
 ^ Love V. Gaze, 8 Beav. 472; Juler v. Juler, 29 Beav. 34; Harrison v. 
 Harrison, 2 Hem. & Mill. 237; Read v. Steadman, 26 Beav. 495; Hill v. 
 Hill, 2 Hayw. 298; Paup v. Mingo, 4 Leigh, 163; Hays v. Jackson, 6 
 Mass. 153 ; Wilson v. Wilson, 3 Bin. 559 ; Darrah v. McNair, 1 Ash. 
 240 ; 2 Story's Eq. Jur. §§ 1208-1210, and notes ; Lewin on Trusts, 50. 
 
 6 Baldwin ??. Humphrey, 44 N. Y. 609; Taylor v. Pownal, 10 Leigh, 
 183. 
 
 96
 
 CHAP. III.] VALUABLE CONSIDERATION. [§ 95. 
 
 giving up the said suit and resuming cohabitation with hira, 
 it was held that the consideration was illegal; but the dis- 
 sent by Holmes is far weightier than the majority opinion. ^ (a) 
 If a deed is given by B. to A. on condition that A. will 
 support B. and C, a trust is created that equity will 
 enforce.^ Wherever 'd valuable coiimleration is paid, the con- 
 tract will be executed as near to the intention of the parties 
 as possible; as where for a valuable consideration a man 
 executed a deed of land purporting to be under his hand and 
 seal, but no seal was affixed, by reason of which defect the 
 legal title did not pass, the court held that the defective 
 deed might be used as a declaration of trust, and that the 
 holder of the legal title should hold it in trust for the grantee 
 in the deed, and that he should be ordered to convey ;3 and 
 where a husband for a meritorious consideration conveyed 
 personal property directly to his wife by deed, which could 
 not operate, because a husband cannot convey directly to his 
 wife, the court ordered the deed to stand as a declaration of 
 trust for the wife, and the husband's representatives to hold 
 the legal title in trust for her.* The authorities establish 
 this proposition, that where there is a valuable consideration 
 the court will enforce the trust, though it is not perfectly 
 created, and though the instruments do not pass the title to 
 the property, if from the documents the court can clearly 
 perceive the terms and conditions of the trust, and the 
 parties to be benefited. In such cases, effect is given to the 
 consideration to carry out the intentions of the parties, 
 though informally expressed. But if no cestui que trust is 
 named, or so designated that he can be identified, the court 
 cannot carry a trust into effect, however clearly it may be 
 
 1 :MeiTill V. Peaslee, 116 Mass. 4G0. 
 •- Benscotter r. Green, GO Md. 3-27. 
 » Wadsworth v. Wendell, 5 Johns. Ch. 224 ; Il.iskill r. Freeman, 
 
 1 Wins. Eq. (N. C.) 3K 
 
 * Huntley c. Huntley, 8 Ired. Eq. 250; Livingston r. Livingston, 
 
 2 Jolins. Ch. 537; Garner v. Garner, 1 Busb. Eq. 1 ; Jones v. Obinchain, 
 10 Grat. 259; Fellows v. Ileermans, 4 Lans. 230. 
 
 (a) See "Whitehouse v. ^^^^itehouse, 90 Maine, 468. 
 VOL. I. — 1 gy
 
 § 96.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 created in other respects.^ Even if a purchaser of land 
 direct a declaration of trust to be inserted in the deed to 
 him, he will be bound by it, though it is voluntary on his 
 part.2 And if no trustee's name is inserted in the deed, it 
 may be reformed, and a suitable trustee may be appointed 
 and inserted.^ {a) 
 
 § 96- And where there is no valuable consideration, yet if 
 the settlor, by a clear and explicit declaration duly executed 
 and intended to be final and binding upon him, makes him- 
 self a trustee, courts of equity will enforce the trust, whether 
 the nature of the property be legal or equitable, and whether 
 it be capable or incapable of transfer.* (b) If it is a mere 
 
 1 Dillage v. Greenough, 45 N. Y. 438 ; Ownes v. Ownes, 23 N. J. Eq. 60. 
 
 2 Reilly v. Whipple, 2 S. C. 277. 
 
 3 Bumside v. Wayman, 49 Mo. 356. 
 
 4 Ex parte Pye, 18 Ves. 140 ; Thorpe v. Owen, 5 Beav. 224 ; Wilcocks 
 V. Hannyngton, 5 Ir. Ch. 38 ; Draiser v. Brereton, 15 Beav. 221 ; Gray v. 
 Gray, 2 Sim. (n. s.) 273; Vandenberg v. Palmer, 4 Kay & J. 204; Sta- 
 pleton V. Stapleton, 14 Sim. 186 ; Searle v. Law, 15 Sim. 99; Bridge v. 
 Bridge, 16 Beav. 315; Steele v. Waller, 28 Beav. 466 ; Paterson v. Murphy, 
 11 Hare, 88; Bentley v. MacKay, 15 Beav. 12; Ownes v. Ownes, 23 N. J. 
 Eq. 60; Crawford's App., 61 Penu. St. 52; Morgan v. Malleson, L. R. 
 10 Eq. 475 ; McFadden v. Jenkyns, 1 Hare, 471. Tn the last case, Sir J. 
 Wigram said : " If the owner of property executes an instrument by 
 
 (a) A trust deed in which the own benefit, if fraudulent as to 
 trustee's name is omitted, may be creditors, may be set aside by 
 treated as an equitable mortgage on subsequent creditors. Brundage 
 the a]>^\ic2Ltion of the cestui que trust, v. Cheneworth, 101 Iowa, 256; 
 Dulaney r. Willis, 95 Va. 606. See Schenck v. Barnes, 49 K Y. S. 222; 
 Dunn V. Raley, 58 Mo. 134. 156 N. Y. 316; Scott v. Keane, 79 
 
 (b) A voluntary trust, of which Md. 709 ; Williams v. Williams, 
 the settlor has attempted to make (Ky.),43 S. W. 198. If not fraud- 
 himself the trustee, where the settlor u lent as to creditors, a secret trust 
 has kept the property in his own for the grantor will not be treated 
 hands subject to his own disposal, as void. Ibid.; Brown v. Bradford, 
 and has never informed the bene- 103 Iowa, 378; z??/ra, § 585 ; Craw- 
 ficiaries of it, is invalid. Welch u. ford v. Langmaid, 171 Mass. 309; 
 Henshaw, 170 INIass. 409. A volun- Donahoe v. Chicago Cricket Club 
 tary conveyance, for the grantor's (111.), 52 N. E. 351. 
 
 98
 
 CHAP. III.] VALUABLE CONSIDERATION. [§ 97. 
 
 agreement, without consideration, to execute a declaration 
 of trust, courts will not act u])on it; but if a party has 
 declared himself to be a trustee, the beneficial interest in 
 the ])roperty becomes vested in tlu; crntui que trust with- 
 out further action, and the cestui que trust can enforce his 
 rights.^ 
 
 § 07. If the donor or settlor docs not propose to make 
 himself a trustee, the trust is not perfectly created. As 
 where there is a mere intention of creating a trust, or a mere 
 voluntary agreement to do so, and the donor or settlor con- 
 templates some further act to be done by him to give it 
 effect, the trust is not completely instituted ; and if it is 
 voluntary, the settlor cannot be compelled to complete it.^ 
 
 which he declared himself a trustee, and had disclosed that instrument to 
 the cestui qne trust, and afterwards acted upon it, that miglit perhaps be 
 sufficient, and a court of equity might not be bound to inquire further 
 into an equitable title so established." Mr. Lewin says that this is " ex- 
 pressed with unnecessary caution^ Lewin on Trusts, 57. The contrary 
 ■was held in Bowering v. King, 37 Ala. GOG ; Walker v. Crews, 73 Ala. 
 412, 417. 
 
 1 Ex parte Pye, 18 Ves. 149 ; Gee v. Liddell, 3o Beav. 621. To create 
 a trust, a man must express an intention to become a trustee; and words 
 that express a present gift show an intention to give property over to 
 another, and not to retain it in the donor's hands for any purpose, fidu- 
 ciary or otherwise. Ileartley r. Nicholson, L. R. 19 Eq. 244 ; Richards 
 V. Delbridge, L. R. 18 Eq. 11 ; Ellison v. Ellison, 6 Ves. 656. If one mode 
 of transfer is indicated, the court will not give effect to it by applying 
 another. Milroy v. Lord, 2 De G., F. & J. 264 ; Warriner v. Rogers, 
 L. R. 10 Eq. 340. 
 
 2 Lloyd V. Brooks, 34 Md. 33 ; Swan v. Frick, id. 1.19 ; Cotteen ;•. Jlis- 
 sing, 1 ]\Iad. 170; Bayley v. Bonlcott, 4 Russ. 345; Dipple r. Corles, 11 
 Hare, ls3 ; Jones v. Lock, L. R. 1 Ch. 25 ; Caldwell v. Williams, 1 Bailey, 
 Eq. 175; Crompton v. Vasser, 19 Ala. 259; Hayes r. Kershaw, 1 Sand. 
 Ch. 258; Reid v. Vanarsdale, 2 Leigh, 560 ; Evans v. Battle, 19 Ala. 378; 
 Pinkard v. Pinkard, 2 Ala. 649; ^Minturn v. Seymour, 4 Johns. Ch. 4P8; 
 Acker v. Phoenix, 4 Paige, 305; Dawson v. Dawson, 1 Dev. Eq. 93; Banks 
 V. ]\Iay, 3 A. K. IMarsh. 435; Bibb r. Smith, 1 Dana, 580; Darlington v. 
 McCoole, 1 Leigh, 36 ; Tiernan v. Poor, 1 Gill & J. 217 ; Forward v. Arm- 
 stead, 12 Ala. 124; Lawry r. ]\IcGee, 3 Head, 2t;9 ; Lister r. Hodgson, 
 L. R. 4 Eq. 30 ; Dillinger v. Llewelyn, 4 De G., F. & J. 517; Gardner v. 
 ^lerritt, 32 Md. 78; Lantermau v. Abernathy, 47 111. 437; Shaw v. Bur- 
 
 99
 
 § 98.] EXPRESS TRUSTS, ETC. [cHAP. III. 
 
 So if the paper executed by the settlor is in the nature of a 
 testamentary disposition which requires to be proved in a 
 court of probate, but is so imperfectly executed that it can- 
 not be proved as a last will and testament, no trust will be 
 created.^ (a) 
 
 § 98. But if the trust is perfectly created^ so that the 
 donor or settlor has nothing more to do, and the person 
 seeking to enforce it has need of no further conveyances from 
 the settlor, and nothing is required of the court but to give 
 effect to the trust as an executed trust, it will be carried 
 into effect, at the suit of a party interested, although it was 
 without consideration, and the possession of the property 
 was not changed.^ {h) And this will be true although the 
 
 ney, 1 Ired. Eq. 148 ; Clarke v. Lott, 11 111. 105; Read v. Robinson, 6 W. 
 & S. 338; Yarborongh v. West, 10 Ga. 471; Colinan v. Sarel, 3 Bro. Ch. 
 12; Antrobus v. Smith, 12 Ves. 39; Edwards v. Jones, 1 M. & Cr. 226; 
 Dillon V. Coppin, 4 id. 647; Jefferys v. Jefferys, 1 Cr. & Phil. 138; Pen- 
 fold V. Mould, L. R. 4 Eq. 562 ; Disher v. Disher, 1 P. Wms. 204. 
 
 1 Ante, §§ 92-94; Warriner o. Rogers, L. R. 16 Eq. 340; Richardson 
 V. Richardson, L. R. 3 Eq. 686; Morgan v. Malleson, L. li. 10 Eq. 475. 
 
 2 Stone V. Hackett, 12 Gray, 227 ; Ellison v. Ellison, 6 Ves. 662 ; Pul- 
 
 (a) If a settlement is intended to 840; Soulard's Estate, 141 Mo. 642. 
 effectuate by gift, the court will not The delivery of the property may 
 give effect to it by construing it as a precede or follow the gift. Alder- 
 trust. If it is intended to take effect son v. Peel, 64 L. T. 645. It may 
 by transfer, the court will not hold be made to a third person for the 
 the intended transfer to operate as a donee. Bump v. Pratt, 84 Ilun, 
 declaration of trust, for then every 201. But delivery is neither neces- 
 imperfect instrument would be made sary nor predicable of a gift of a 
 effectual by being converted into a beneficial interest. Smith's Estate, 
 perfect tru.st. Moore w. Moore, 43 144 Penn. St. 428. A gift may arise 
 L. J. Ch. 617, 623; Martin ?'. Funk, from necessary implication. Bishop 
 75 X. Y. 134; Gannon v. McGuire, v. McCelland, 44 N. J. Eq. 4.50. A 
 47 X. Y. S. 870. If a gift was clearly deed of gift may be admitted to pro- 
 intended by a writing, which fails bate as a will, if properly executed 
 for want of delivery, the writing therefor. /« re Slinn, 15 P. D. 156; 
 cannot be upheld as a declaration of see Graves v. Safford, 41 111. App. 
 trust. Wadd v. nazelton,137 N. Y. 659 ; Sanborn v. Sanborn, 65 X. H. 
 215; Smith's Estate, 144 Penn. St. 172. 
 
 428; Roberts v. Mullinder, 94 Ga. (h) See 1 Ames on Trusts (2d ed.), 
 
 493; Wylie v. Charlton, 43 Neb. 125, n. 
 100
 
 CHAP. III.] VOLUNTARY SETTLEMENTS. [§ 98. 
 
 person who is intended to be benefited has no knowledfre of 
 the act at the time it is done, provided ho acceids and 
 
 vertoft V. Pulvertoft, 18 Ves. 99; Sloan v. Cadogan, Sugd. Ven. & I'ur. 
 App. 26; Edwards v. Jones, 1 M. & Cr. 226 ; VVheatley v. Purr, 1 Keen, 
 551; Garrard v. Lauderdale, li Sim. 1; CoUinsou v. Patrick, 2 Keen, 123; 
 Dillon V. Coppiu,4 M. & Cr. 647; Meek v. Kettlewell, 1 Hare, 464 ; Fletcher 
 V. Fletcher, 4 Hare, 74; Price v. Price, 4 IJeav. 59.S; IJridge v. Bridge, 16 
 Beav. ;J15 ; Beech i;. Keep, 18 Beav. 2S5; Donaldson v. Donaldson, 1 Kay, 
 711; Scales v. Maude, 6 De G., M. & G. 43 ; Airey r. Hall, 3 Sm. & Gif. 
 315; Wright v. Miller, 4 Seld. 9 ; Andrews v. nobson,23 Ala. 219; Lech- 
 mere V. Carlisle, 3 P. Wms. 222; Bunn v. Wintlirop, 1 Johns. Ch. 3:29; 
 Minturn i-. Seymour, 4 id. 498 ; Dennison v. Goeliriug, 7 Barr, 17."); Tolar 
 V. Tolar, 1 Dev. Eq. 4o6; Dawson v. Dawson, id. 93, 396; Hardin i;. Baird, 
 6 Litt. 340; Hayes v. Kershaw, 1 Sand. Ch. 201; Fogg v. Middleton, 
 Riley, Ch. 193; Greenfield's Estate, 2 Ilarr. 489; Kirkpatrick v. McDon- 
 ald, 1 Jones, 387 ; Graham v. Lambert, 5 Humph. 595; Henson v. Kinard, 
 3 Strob. Eq. 371; Dupre v. Thompson, 4 Barb. 280; Cox v. Sprigg, 6 Md. 
 274 ; Lane v. Ewing, 31 Mo. 75; Ownes v. Ownes, 23 X. J. Eq. 60; Baker 
 r. Evans, 1 Wins. Eq. (N. C), 109; Massey v. Huntington, 118 HI. 80; 
 Richardson v. Richardson, L. R. 3 Eq. 686; Toker i^. Toker, 3 De G.. J. 
 & S. 487; Howard v. Savings Bank, 40 Vt. 597; Tanner v. Skinner, 11 
 Bush (Ky.), 120. Except against creditors and bona Jide purchasers with- 
 out notice. Padfield v. Padfield, 68 111. 25 ; Borum v. King, Ala. Sel. Cas. 
 534, is contra. 
 
 In Stone v. Ilackett. 12 Gray, 227, the settlor had purchased stocks in 
 various corporations in the name of IL P. K., and took from H. P K. a 
 declaration that she held the stocks upon certain trusts therein particu- 
 larly specified. Afterwards the settlor caused H. P. K. to indorse and 
 sign upon the backs of the certificates a triinsfer to the plaintiff and a 
 power of attorney to the plaintiff to complete the transfer, and took from 
 her a declaration of trust, stating the purpo.ses fi^r which she held the 
 stock. The settlor died, and a question arose as to the title to the stock. 
 Chief-Justice Bigelow said : " The key to the solution of the question 
 raised in this case is to be found in the equitable principle now well 
 established and uniformly acted on by courts of chancery, that a volun- 
 tary gift or conveyance of property in trust, when fully completed and 
 executed, will be regarded as valid, and its provisions enforced and car- 
 ried into effect against all persons except creditors and bona fide purchas- 
 ers without notice. It is certainly true that a court of equity will lend 
 no assistance towards perfecting a voluntary contract or agreement for 
 the creation of a trust, nor regard it as binding so long as it remains ex- 
 ecutory. But it is equally true that if such an acrreement or contract be 
 executi'd by a conveyance of j^roperty in trust, so that nothing remains to 
 be done by the grantor or donor to complete the transfer of the title, the 
 
 101
 
 § 98,] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 ratifies it when he is notified,^ But if there is any fraud, 
 accident, or mistake in the transaction, courts will not carry 
 a voluntary trust into execution, ^ 
 
 relation of trustee and cestui que trust is deemed to be established, and the 
 equitable rights and intei'ests arising out of the conveyance, though made 
 •without consideration, will be enforced in chancery. The leading case in 
 •which the principle is declared and acted upon is Ellison v. Ellison, 6 Ves. 
 656, in which Lord Eldon decreed the enforcement of a trust which iu its 
 creation was wholly voluntary and without consideration. This has been 
 followed by many other cases in which the same principle was recog- 
 nized, Pulvertoft V. Pulvertoft, 18 Ves. 84 ; Ex parte Pye, id. 140 ; Sloan 
 V. Cadogan, Sugd. Ven & Pur. (11th ed.) 1119 ; Fbrtescue v. Barnett, 
 3 My. & K. 36 ; Wheatley v. Purr, 1 Keen, 551 ; Blakely v. Brady, 2 Dru. 
 & Wal. 311 ; Browne v. Cavendish, 1 Jon. & La. 637; Kekewich v. Man- 
 ning, 1 De G., J\I. & G. 176. The last-named case contains a full discus- 
 sion of all the authorities, and a clear and accurate statement of the law 
 upon the subject. 
 
 " The application of the principle established by these authorities is 
 entirely decisive of the rights and duties of the parties to this suit. The 
 conveyance or transfer of the shares to the plaintiff in her capacity of 
 trustee was full and complete, and vested in her the legal title to the prop- 
 erty. No further act was to be done by the original owner of the shares 
 to consummate the plaintiff's title, as between the parties the delivery of 
 the certificates of stock, with the assignments of some of them and the 
 power of attorney to transfer the others, was equivalent to a complete ex- 
 ecuted transfer of the shares. Nor is it at all material to the validity of 
 the plaintiff's title that transfers of the shares had not been recorded in 
 the books of the different corporations and new certificates of stock taken 
 out by her. That was not necessary to the conveyance of the legal title 
 as between the donor and the plaintiff. This is well settled by the au- 
 thorities in this State. Quinn v. INIarblehead Social Ins. Co., 10 Mass. 
 476; Ellis v. Essex Merrimack Bridge, 2 Pick. 248; Sargent v. Franklin 
 Ins. Co., 8 Pick. 96 ; Eames v. Wheeler, 19 Pick. 444. Sucn, too, is the 
 plain import of the statute. . . . Nothing therefore was left in fieri. 
 The transaction was a completely executed transfer of property, and fully 
 created a trust which, according to the principles already stated, a court 
 of equity is bound to recognize and enforce," Penfield v. Public Adm'r, 
 
 1 Neilson v. Blight, 1 Johns. Cas. 205; Moses v. INIurgatroyd, 1 Johns. 
 Ch. 119; Weston v. Barker, 12 Johns. 276; Cumberland v. Codrington, 3 
 Johns. Ch. 261. And see Shepherd v. McEvers, 4 Johns. Ch. 136 ; Ilosford 
 V. Merwin, 5 Barb. 51 ; Wetzel v. Chaplin, 3 Bradf. 386 ; Brabrook v. 
 Boston Five Cents Savings Bank, 104 Mass. 231, 
 
 2 Lister v. Hodgson, L. R, 4 Eq. 30, 
 
 102
 
 CHAP. III.] VOLUNTARY SETTLEMENTS. [§ 99. 
 
 § 09. The trust luust be for a lawful purpose and perfectly 
 created. If a will creates several trusts, mnno of which are 
 legal and others not, the lawful ones will be upheld if they 
 can be separated from the others.^ Whether the trust is 
 perfectly created or not, is a question of fact in each case; 
 and the court, in determining the fact, will give effect to 
 the situation and relation of the parties, the nature and 
 situation of the property, and the purposes or objects which 
 the settlor had in view in making the disposition.^ A vast 
 
 2 Y.. D. Smith, 505; Millspaugh v. Putnam, 16 Abb. 380; Hunter v. 
 Hunter, 19 IJarb. 631; Grani^iar v. Arden, lU .Johns. 293; Benlow v. 
 Towuseud, 1 My. & K. 506 ; Mendoa v. jMerrill, 2 Edw. Ch. 333; Howard 
 V. Windham County Savings Bank, 40 Vt. 597; Sherwood «;. Andrews, 
 2 Allen, 79 ; Warriner v. Rogers, L. R. 16 Eq. 311 ; Blasdel r. Locke, 
 62 N. H. 238. 
 
 1 Kennedy v. Hoy, 105 X. Y. 134. 
 
 2 See Brabrook v. Savings Bank, 104 Mass. 228, where deposits in sav- 
 ings banks are fully discussed. Jones v. Lock, L. R. 1 Ch. 25. lu this 
 case a father put a check for £900 into the hands of his child, nine months 
 old, with the strongest expression of an intent to give tlie check to the 
 child. He afterwards took the check and locked it up, saying he sliould 
 keep it for the child, and died the same day. A bill was broujjht in be- 
 half of the child against his father's representatives to enforce his interest 
 in the check as a trust. Lord Cranworth said : " No doubt a gift may be 
 made by any person sui juris and compos mentis, by conveyance of real es- 
 tate or by delivery of chattels ; and there is no doubt also that by some 
 decisions, unfortunate I must think them, a parol declaration of a trust 
 of personalty may be perfectly valid even when voluntary. If I give any 
 chattel, that of course passes by delivery, and if I say expressly, or im- 
 pliedly, that I constitute myself a trustee of personalty, that is a trust exe- 
 cuted, and capable of being enforced without consideration. I do not 
 think it necessary to go into any of the authorities cited before me. They 
 all turn upon the <iueslion whether what has been said was a declaration nf trust 
 or an imperfect gift. In the latter the parties would receive no aid from a 
 court of equity, if they claimed as volunteers ; but if there has been a 
 declaration of trust, then it will be enforced whether there has been a 
 consideration or not. Therefore the question in each case is one of fact, has 
 there been a gift or not, or has there been a declaration of trust or not ? 
 This case turns on the very short question whether the father intended to 
 make a declaration that he held the property in trust for the child, and T 
 cannot come to any other conclusion than that he did not." His Lord- 
 ship then conimeiits upon the evidence, and says " that it was all very 
 natural, but that the father would liave been very much surprised if he 
 
 103
 
 § 99.] EXPKESS TRUSTS, ETC. [CIIAP. III. 
 
 number of cases have been decided involving the last three 
 propositions. There is much seeming conflict in the 
 decisions, and it would be an eadless, perhaps useless, task 
 to attempt to reconcile them. The proposition laid down by 
 Lord Cranworth, that it is a question of fact in each case 
 whether a perfect trust is created or not, goes far to recon- 
 cile the differences. Some judges give greater prominence 
 to one element of fact in the case than other judges, and 
 thus different judges might decide the same question upon 
 the facts in a different manner; but so long as it is a ques- 
 tion of fact in each case, the rule of law is the same, how- 
 ever the fact may be found. When a deed fully declaring 
 the trust is executed and delivered, and nothing further 
 remains to be done by the grantor, the trust is created.^ 
 Failing to name the beneficiary will not be fatal, if the title 
 is properly conveyed and the trustee admits that he holds 
 for the plaintiff.2 In New York, however, it is held that 
 the absence of a defined beneficiary capable of enforcing the 
 trust is in general fatal, and that giving power to the trustee 
 to select the beneficiary is not sufficient, unless the persons 
 among whom the choice is to be made are so defined and 
 limited that a court of equity could in default of selection 
 by the trustee enforce the trust by a distribution among all 
 the beneficiaries.^ In this case the trust was to have prayers 
 
 had been told that hp had parted with the £000, and could no longer dis- 
 pose of it; and that the child, by his next friend, could have brought an 
 action of trover for the check." See Scales v. Maude, 6 De G., M. & G., 
 51 ; Hackney v. Vrooman, 62 Barb. 650; Brabrook v. Boston Five Cents 
 Savings Bank, 104 ]\Iass. 228; Richards v. Delbridge, L. R. 18 Eq. 11; 
 Martin v. Funk, 75 N. Y. 134 ; Gerrish i'. New Bedford Inst, for Savings, 
 1-28 Mass. 150; Taylor r. Henry, 48 Md 550: Stone v. Bishop. 4 Cliff. 
 593 ; Ray v. Simmons, 11 R. T. 266 ; O'Brien, Pet'r, id. R. I. 419; Blais- 
 dell V. Locke, 52 N. H. 238. The decisions are not uniform as to the 
 effect of a deposit in Savings Bank and entry in the books for the benefit 
 of. or in trust for a child or other benpficiary ; in some cases it is held suf- 
 ficient declaration of a trust, and in others something further is required, 
 as notice, or delivery of the book. 
 
 * Massey v. Huntington, 118 111. 80 
 
 2 Sleeper v. Iselin, 62 Iowa, 585; Boardman v. Willard, 73 Iowa, 20. 
 
 8 Holland v. Alcock, 108 N. Y. 312. 
 104
 
 CIIAI'. in.] VOLUNTAUY SETTTEMENTS. [§ 100. 
 
 offered in a Roman cliurch for tlic repose of the souls of the 
 grantor, liis family, and all others in purgatory. A deed 
 saying, "The following notes I leave in trust with E. C. to 
 he divided among A., B., and C. at my death," was held to 
 create a perfect })rcsent trust. ^ A conveyance may he made 
 upon trusts to he suhscquently declared, and when the suh- 
 sequcnt declaration occurs, the trust is treated in the same 
 way as if declared at the time of the deed.'^ The consent or 
 even knowledge of the cestui is not a necessary element in the 
 creation of a valid trust. A transfer of stock, for instance, 
 in proper form vests the title in the transferee suhjcct to his 
 repudiation when informed of the transaction.^ 
 
 § 100. If the donor or settlor propose to make a stranger 
 the trustee of his property, and the property is a legal estate, 
 capahle of legal transfer and delivery, the trust is not per- 
 fectly created, unless the legal interest is actually trans- 
 ferred to or vested in the trustee. It is not enough that the 
 settlor executed a paper purporting to pass it, if in fact the 
 paper does not have that effect. The intention of the settlor 
 to divest himself of the legal title must be consummated and 
 executed, or the court will not enforce the trust. As, for 
 instance, if a settlor execute a deed in trust of scrip, stock, 
 or shares in cor{)orations, which scrip, stock, or shares can 
 he transferred only by assignment upon the backs of the 
 certificates, and upon the company's books, the deed, if 
 voluntary, will not create a trust which the court will 
 execute, unless the stocks are actually transferred in fact.* 
 
 1 Egerton v. Carr, 94 N. C. 648. 
 
 2 Ireland o. Geraghty, 11 Biss. (U. S.) 405. 
 
 3 Standing v. Bowring. 31 Ch. D. 282. 
 
 * Clarrard v. Lauderdale, 2 R. & M. 451 ; 3 Sim. 1 ; 3Ieck r. Kettlewell, 
 
 1 Hare, 464; Dillin v. Coppin, 4 M. & Cr. 647; Coningham v. Plunkett, 
 
 2 Y. & Col. Ch. 245 ; Searle v. Law, 15 Sim. 95 ; Price v. Price, 14 Beav. 
 598; Bridge v. Bridge, 16 Beav. 315; Beech r. Keep, 18 Beav. 285; Tot- 
 ham r. Vernon, 2!) Beav. 604; Dillon v. Bone, 3 Gif. 238; Milroy v. Lord, 
 8 Jur. (n. s.) 806; 4 De G., F. & J. 2(i4; Parnell v. Hingston, 3 Sm. & 
 Gif. 337 ; Kiddill v. Farnell, ib. 428 ; Weale r. Ollive, 17 Beav. 252 ; Den- 
 ing V. Ware, 22 Beav. 181; Roberta v. Roberts, 11 Jur. (n. s.) 992; Foi> 
 
 105
 
 § 101.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 And so of mortgages, mortgage debts, and other securities. 
 If anything remains for the donor to do to vest the legal 
 title in the donee, the court cannot execute the trust, if it is 
 voluntary. Lord Eldon stated the principle thus : " 1 take 
 the distinction to be, that if you want the assistance of the 
 court to constitute a cestui que trust, and the instrument is 
 voluntary/, you shall not have the assistance for the purpose 
 of constituting a cestui que trust, as upon a covenant to 
 transfer stock, &c. ; but if the party has completely trans- 
 ferred stock, (fee, though it is voluntary, yet the legal con- 
 veyance being effectually made, the equitable interest will 
 be enforced by this court. ^ 
 
 § 101. But if the subject of the trust is a legal interest 
 that cannot be transferred or assigned at law, as a bond or 
 any other chose in action, what then is the rule ? On the one 
 hand it has been argued that in equity the universal rule is, 
 that a court will not enforce a voluntary agreement in favor 
 of a volunteer, and as by the supposition the legal interest 
 remains in the settlor (who, therefore, at law retains the 
 full control and benefit of it), a court of equity will not, in 
 the absence of a valuable or good consideration, deprive him 
 of that interest, with which he has not actually parted. 
 And this reasoning has been sustained by numerous cases.^ 
 On the other hand, as the settlor cannot divest himself of 
 the legal interest, to say that he shall not constitute another 
 
 est V. Forest, 34 L. J. Ch. 428 ; Peckham v. Taylor, 31 Beav. 250 ; Lons- 
 dale's Estate, 29 Penn. St. 407; Cressman's App , 42 id. 147; Jones?;. 
 Obinchain, 10 Grat. 259; Henderson v. Henderson, 21 Mo. 379; Lane 
 V. Ewing, 31 Mo. 75; Gilchrist v. Stevenson, 9 Barb. 9; Doty v. Wilson, 5 
 Lans. 7. 
 
 1 Ellison V. Ellison, 6 Ves. 662; Antrobus v. Smith, 12 Ves. 39; Col- 
 man V. Sarel, 1 Ves. Jr. 50 ; 3 Bro. Ch. 12 ; Uening v. VV^are, 22 Beav. 
 184; Airey v. Hall, 3 Sm. & Gif. 315 ; Kiddill v. Farnell, id. 428; Pul- 
 vertoft V. Pulvertoft, 18 Ves. 89 ; Brabrook v. Savings Bank, 104 Mass. 
 228. 
 
 2 Edwards v. Jones, 1 My. & Cr. 226 ; Ward v. Audland, 8 Sm. .571 ; C. 
 P Coop. Cas. (1840), 146 ; 8 Beav. 201 ; Meek v. Kettlewell, 1 Hare, 464 ; 
 Scales r. Maude, 6 De G., M. & G. 43 ; Sewell v. Moxsy, 2 Sim. (n. s.^ 
 189 ; Bridge v. Bridge, 16 Beav. 315; Beech v. Keep, 18 Beav. 285. 
 
 106
 
 CHAP. III.] VOLUNTARY SLTTLEMEXTS. [§ 101. 
 
 as trustee without passing tlie legal interest, would be to 
 debar him from the creation oi" a trust at all in the hands of 
 another, and tliat the rule, therefore, should be, that if the 
 settlor make all the assignment of the projierty in his posver, 
 and perfect the transaction as far as the law permits, the 
 court should recogni/e the act and suj)port tlie validity of 
 the trust. And this reasoning has also been supported by 
 many decided cases. ^ In a late leading case, Lord Justice 
 K. Bruce made a thorough examination of all the authori- 
 ties, and established this proposition: "It is upon legal 
 and equitable principles, we apprehend, clear that a person 
 8ui juris, acting freely and fairly, and with sufficient knowl- 
 edge, ought to have, and has it in his power to make in a 
 binding and effectual manner a voluntary gift of any part of 
 his property, whether capable or incapable of manual delivery^ 
 whether in possession or reversionary, or hoivsoever circum- 
 stanced.'^'''^ Mr. Lewin says, "that it is conceived that this 
 principle will, for the future, prevail," ^ and it has been 
 followed ill the later cases. ^ But if part of the property be 
 capable of delivery and transfer, and part of it incaj)able of 
 delivery, and that which might have been legally assigned 
 and delivered is not so assigned and delivered, no trust is 
 created.^ 
 
 1 Fortescue v. Barnett, 3 IVfy. & K. 36 : Roberts v. Lloyd, 2 Reav. 376 
 Blakely v. Brady. 2 Dru. & Wal. ?>\\ ; Airey v. Hall, :] Sm. & Gif. 31.5 
 Parnell r. Iliiigston, id. 3.37: Pearson i;. Amicable Office, 27 Beav. 229 
 Sloan V. Cadoi^an, Sutrd. Vend. & Pur. App. 
 
 2 Kekewich v. Manning, 1 De G., M. & G. 187. 
 ' Lewin on Trusts, 58. 
 
 * Wilcocks V. ITannynpton, 5 Jr. Ch. 4.'i ; Voyle v. Hughes, 2 Sm. & Gif. 
 18 ; Gilbert v. Overton, 33 L. J. Ch. 683 ; Way's Settlem-nt, 10 Jur. 
 (n. s.) HOG; 3t L. J. Ch. 40; Lambe v. Orton,'l Dr. & Sm. 12.-): Don- 
 aldson V. Donaldson, Kay, 71 1 ; Appeal of Elliott's Ex'rs, 50 Peiin. St. 75. 
 And see Hill on Trustees, 140, 111 (1th Am. ed.) ; Morgan v. ]\Lalleson, 
 L. R. 10 Eq. 475. 
 
 5 "Woodford v. Charnley, 28 Beav. 90. In Richardson v. Richardson 
 L. R. 3 £q. 086, there was a voluntary assignment of all the personal 
 property, whatsoever and wheresoever, of the assignor. There were pro- 
 missory notes not indorsed by the assignor, but it was held to be a com- 
 plete assignment of them in trust. 
 
 107
 
 § 102.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 § 102. It is well established that if the subject of the trust 
 is an equitable interest, the cestui qve trust may create a 
 valid trust by executing an assignment of his interest to a 
 new trustee, for the equitable interest can be transferred 
 from one to another, and as the relation of trustee and cestui 
 que trust already exists, the original settlor need not be 
 called upon to do any act.^ Lord Justice K. Bruce said: 
 "Suppose stock or money to be legally vested in A. as a 
 trustee for B. for life, and subject to B. 's life-interest for 
 C. absolutely, surely it must be competent for C, in the 
 lifetime of B,, with or without the consent of A., to make 
 an effectual gift of his interest to D. by way of pure bounty, 
 leaving the legal interest and legal title untouched. If so, 
 can C. do this better or more effectually than by executing 
 an assignment to D ? " ^ So the cestui que trust can assign 
 voluntarily his equitable interest to a stranger in trust for 
 himself.^ Or by a new declaration of trust the cestui que 
 trust can direct the old trustees to hold his interest there- 
 after upon new trusts.'* But it has been decided that a 
 voluntary assignment of a mere expectancy in an equitable 
 interest did not perfectly create a trust that the court would 
 enforce; that any dealing with what a person only expects 
 to have must in some sense be in fieri.^ And if a settlor 
 intend to make a voluntary settlement in a particular mode, 
 as by conveying the legal title, and he fails to convey the 
 
 1 Sloan V. Cadogan, Sugd. Vend. & Pur. App. This case was questioned 
 in Beatson v. Beatson, 12 Sim. 281, but it has since been acted on. Voyle 
 V. Hughes, 2 Sm. & Gif. 18; Lambe v. Orton, 1 Dr. & Sm. 125; Gilbert 
 r. Overton, 2 Hem. & M. 110; Woodford r. Charnley, 28 Beav. 99 ; Way's 
 Settlement, 2 De G., J. & Sm. 365, reversing 4 New R. 453. And see 
 Reed v. O'Brien, 7 Beav. 32; Bridge v. Bridge, 16 Beav. 315; Gannon v. 
 White, 2 Ir. Ch. 207 ; Donaldson v. Donaldson, 1 Kay, 711. 
 
 2 Kekewich v. Manning, 1 De G., M. & G. 188. 
 
 2 Sloan V. Cadogan, ut supra; Cotteen v. Missing, 1 INIad. 176; Godsall 
 V. Webb, 2 Keen, 99 ; Collins v. Patrick, id. 123; Wilcocks v. Hannyng- 
 ton, 5 Ir. Ch. 38. 
 
 * Rycroft v. Christy, 3 Beav. 238 ; McFadden v. Jenkyns, 1 Hare, 458; 
 1 Phill, 153. 
 
 5 ]\Ieek V. Kettlewell, 1 Hare, 464, by Sir J. Wigram, affirmed by Lord 
 Lyndhurst in 1 Phill. 342. 
 108
 
 CHAP. III.] VOLUNTARY SETTLEMENTS. [§ 103. 
 
 title, the court will not lend its aid to give effect to the 
 settlement in another and different mode, as by converting 
 the attempted conveyance into a declaration of trust, for that 
 would be to convert every imperfect voluntary instrument 
 into a perfect trust. ^ 
 
 § 103. In case of a sale of real estate for a valuable con- 
 sideration, nothing passes by the deed, although it is signed 
 and sealed, until the purchase-money is paid and the deed 
 delivered to the vendee, or until so much is done that the 
 law will construe the deed to be for the use, or under the 
 control, of the vendee; but if a party execute a voluntary 
 settlement and the deed recites that it is sealed and deliv- 
 ered, it will be binding upon the settlor although he never 
 parts with it, but keeps it in his possession until his 
 death. 2 (a) Still, if there are circumstances that show that 
 the settlor never intended the deed, though executed, to 
 operate, the court will consider them; and if the deed was 
 
 1 Milroy v. Lord, 8 Jur. (n. s.) 809; Lister v. Hodgson, L. R. 4 Eq. 30. 
 
 a Jn re Way's Trust, 2 De G., J. & Sm. 365 ; Fletcher v. Fletcher, 4 
 Hare, 67; Hope v. Harman, 11 Jur. 1097; Jones v. Obinchain, 10 Grat, 
 259; Urann v. Costes, 109 Mass. 581 ; Sear v. Ashwell, 8 Swaiist. 411 ; 
 Barlow v. Heneage, Pr. Ch. 211; Clavering y. Clavering, 2 Vem. 474; 
 Cecil V. Butcher, 2 J. & W. 573; Garnons v. Knight, 5 B. & C. 671 ; Exton 
 V. Scott, 6 Sim. 31 ; Hall v. Palmer, 3 Hare, 532 ; Souverbye v. Arden, 1 
 Johns. Ch. 210; Bunn v. Winthrop, id. 329; Boughton r. Boughton, 1 
 Atk. 025; Brackeiibury c. Brackenbury, 2 J. & W. ;591 ; Roberts i;. Rob- 
 erts, Daniel, 143. And see Cecil v. Butcher, 2 J. & W. 505. 
 
 (a) A declaration of trust, when a voluntary family settlement, in 
 relied upon, must be shown to have the presence of the grantor's family, 
 been delivered as well as signed or may be effective from the time of 
 acknowledged, even when recorded its execution, though retained by 
 by the grantor. Delivery is pre- the grantor. Tarbox v. Grant, 56 
 sumed when the paper is produced N. J. Eq. 199; O'Xeil v. Green- 
 by a beneficiary who is its proper wood, 106 Mich. 572. The trustee's 
 custodian. Govin i;. De Miranda, written acceptance, on the deed of 
 76IIun, 414; Starbuck r. Farmers' trust, conclusively shows delivery. 
 Loan Ass'n, 51 N. Y. S. 58 ; Loring New South B. Co. v. Gann, 101 Ga. 
 V. Ilildreth, 170 Mass. 328. But a 678. 
 deed executed and acknowledged as 
 
 109
 
 § 104.] EXPKESS TRUSTS, ETC. [CHAP. III. 
 
 never delivered it will be one circumstance, and it may be a 
 controlling circumstance, to show that the trust was never 
 perfectly created or that it was revocable.^ 
 
 § 104. A completed trust without reservation of power of 
 revocation can only be revoked by consent of all the cestuis.^ 
 If a voluntary trust for the benefit, wholly or partly, of some 
 person or persons other than the grantor ^ is once perfectly 
 created, and the relation of trustee and cestui que trust is 
 once established, it will be enforced, though the settlor has 
 destroyed the deed,^ or has attempted to revoke it by making 
 a second voluntary settlement of the same property or other- 
 wise,^ or if the estate, by some accident, afterwards becomes 
 
 1 Uniacke v. Giles, 2 Moll. 257; Antrobus v. Smith, 12 Yes. 39; Birch 
 V. Blagrave, Amb. 262; Dillon v. Coppin, 4 M. & Cr. 647; Platmone v. 
 Staple, Coop. 250; Naldred v. Gilham, 1 P. Wms. 577; Cotton v. King, 2 
 P. Wms. 358, 674 ; Alexander v. Brame, 7 De G., M. & G. 525; Otis v. 
 Beckwith, 49 111. 121. 
 
 2 Sargent v. Baldwin, 60 Yt. 17. 
 8 Light V. Scott, 88 111. 239. 
 
 4 Tolar V. Tolar, 1 Dev. Eq. 456 ; Dawson v. Dawson, id. 93, 396 ; In re 
 Way's Trust, 10 Jur. 837; 2 De G., J. & Sm. 365; Bitter's App. 59 Penn. 
 St. 9. 
 
 ^ Newton V. Askew, 11 Beav. 145; Rycroft v. Christy, 3 Beav. 238; 
 Boughton V. Boughton, 1 Atk. 625; Brackenbury v. Brackenbury, 2 J. & 
 W. 391 ; Clavering v. Clavering, 2 Vern. 473 ; Roberts v. Roberts, Daniel, 
 143; Cook v. Fountain, 3 Swans. 565; Young v. Peachy, 2 Atk. 254; 
 Cecil V. Butcher, 2 J. & W. 565; Kekewich r. Manning, 1 De G., M. &. G. 
 176; In re Way's Trust, 2 De G., J. & S. 365; Hildreth v. Eliot, 8 Pick. 
 293; Stone v. Hackett, 12 Gray, 227 ; Falk v. Turner, 101 Mass. 494; 
 Souverbye v. Arden, 1 Johns. Ch. 240; Bunn v. Winthrop, id. 329; Den- 
 nison v. Goehring, 7 Barr, 175; Yiney v. Abbott, 109 Mass. 302; Sewall 
 V. Roberts, 115 Mass. 272; Cobb v. Knight, 74 INIaine, 2.53; Gulick r. 
 Gulick, 39 N. J. Eq. 401; Williams v. Yreeland, 32 id. 135; McPherson 
 V. Rollins, 107 N. Y. 316; Nearpass v. Newman, 106 N. Y. 47 ; Meiers v. 
 Meigs, 22 Hun (N. Y.). 453. As where A. had a policy of insurance is- 
 sued on his life "in trust" for his children, and notified the cesiuis and 
 paid the premiums for several years, it was held that he could not revoke 
 the interest of his children, and a second policy issued substantially as a 
 continuation of the first, but made payable to A.'s widow, was held for the 
 children. Garner v. Ger. L. Ins, Co., 110 N. Y. 266. It must be ob- 
 served, however, that the absence of a power to revoke a voluntary 
 110
 
 CHAP. III.] VOLUNTARY SETTLEMENTS. [§ 104. 
 
 revested in the settlor. ^ In all these cases the first perfectly 
 created trust will be upheld, with all its consequences, and 
 
 settlement or trust is viewed by courts of equity as ;i circumstance of sus- 
 picion, and very sliffht evidence of mistake, misapprehension, or misun- 
 derstanding on Die part of tlie settlor will be laid liold of to set aside the 
 deed. The following opinion by the Chancellor (Ruiiyon) in a late case 
 in New Jersey, Garnsey v. Mundy, L'l N. J. j:q. 2}:J, reprinted in 13 Am. 
 Law Reg. (n. s.) 345, with a learned note by Mr. Bispham, gives a very 
 clear view of the law applicable to voluntary settlements without a power 
 of revocation made under circumstances which may lead to the conclu.sion 
 that the settlor did not intend to put the property entirely beyond his con- 
 trol, or that he acted unadvisedly or improvidently : — 
 
 "On the 4th of July, 1801, the complainant, Sarah M. Garnsey, who 
 Wiis then a single woman (her maiden name being Sarah ]\I. Mundy), and 
 of the age of about twenty-one years, was seized in her own right, in fee, 
 in possession, through inheritance from her father, James ]\Iundy, de- 
 ceased, of a parcel of unimproved farming land of about seven acres in 
 JNliddlesex County in this State, and was also the owner of an undivided 
 third of the remainder, in fee, of two other lots there, — one a wood-lot 
 of about two acres, and the other the house-lot, containing about nine and 
 a half acres, which had been set off to her mother, Elizabeth Mundy, in 
 dower. She had no other property, real or personal. By a deed of that 
 date she conveyed in fee to her mother, for the expressed consideration of 
 natural love and affection to the grantor's daughter, Elmina May, and of 
 fifty cents to her paid by her mother, the whole of said property on the 
 following trust : ' That the said Elizabeth Mundy shall and will hold, 
 use, occupy, and rent the same, and receive the rents, issues, and profits 
 thereof to and for the maintenance of said Elmina May Mundy until she 
 shall arrive at the age of twenty-one years, or in case of her death, the 
 said Elizabeth Mundy, her heirs or assigns, shall pay the rents or profits 
 arising as above to the said Sarah M. Mundy, and in further trust to 
 convey the land and premises with the appurtenances herein before men- 
 tioned, in fee-simple, to the said Elmina May Mundy, or in equal shares 
 to her and any other children of said Sarah M. Mundy (sliould there be 
 any other), when the youngest of said children shall have attained the age 
 of twenty-one years ; and in the event that no issue of the said Sarah M. 
 
 1 Ellison V. Ellison, 6 Ves. 656 ; Smith v. Lyne, 2 Y. & Col. 345; Pat- 
 erson t\ IMurphy, 11 Hare, 88; Gilchrist v. Stevenson, 9 Barb. 9 ; Uzzle v. 
 Wood, 1 Jones, Eq. 220; Browne r. Cavendish, 1 J. is. L. 637. See also 
 Aylsworth i;. Whitcomb, 13 R. I. 298, where it is said, if deliberate intent 
 to make it irrevocable does not appear, the absence of power of revocation 
 will be prima facie evidence of mistake. Estes v. Tillinghast, 4 R. I. 270; 
 Russell's App. 75 Peun. St. 269. 
 
 Ill
 
 § 104.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 the settlor will be declared to be a trustee.^ (a) A trust 
 once created and accepted without reservation of power can 
 
 Mundy shall survive to inherit the same, that the estate herein named 
 shall be conveyed acccording to the direction of the executor of the will 
 of the said Sarah M. Mundy heretofore made.' 
 
 "In 18G4 Sarah M. Mundy was married to Silas Garnsey. The bill is 
 filed by her and her husband against her two children and her mother, 
 the trustee, to set aside the deed. The property at the time of making the 
 conveyance in question was and still is of but little value as farming land. 
 The buildings upon the house-lot, which alone was improved, were old 
 and dilapidated and have gone to decay, and even the fences on the prem- 
 ises are down. The trustee, who is a woman of advanced age, was and is 
 wholly without means, except her dower. The deed is voluntary. It was 
 made at the suggestion and on the advice of the grantor's mother, and of 
 her uncle, Dr. Jacob Martin, her mother's brother. The grantor neither 
 proposed nor suggested it. Indeed, it appears she knew nothing of it 
 until it was presented to her for her signature, and she was urged by her 
 mother and her uncle to execute it, ' for her good.' Their motive, they 
 say, was to save the property for her, to prevent her from improvidently 
 disposing of it. No professional advice whatever was taken. The deed 
 was drawn by a son of Dr. Martin, at the latter's direction ; and its exe- 
 cution was witnessed by Dr. Martin, who, being a commissioner of deeds, 
 took the grantor's acknowledgment. The grantor had no advice what- 
 ever, except that which her mother and uncle gave her. Xot only was 
 she not consulted in regard to the matter in any way, but it was clear 
 that she did not understand the provisions of the deed, nor their effect. 
 She did not suppose that the effect of the conveyance would be to place 
 the property beyond her reach and control. Nay, her mother and uncle 
 both supposed that the trust was revocable, and that the grantor under it 
 retained full power to sell the property, with the trustee's consent. The 
 
 ^ Ellison V. Ellison, 6 Ves. 656 ; Smith v. Lyne, 2 Y. & Col. 345; Pat- 
 erson v. Murphy, 11 Hare, 88 ; Gilchrist v. Stevenson, 9 Barb. 9. 
 
 (a) See Thurston, petitioner, 154 v. Warner, 47 Minn. 446; Hell- 
 Mass. 596; Keyes v. Carlton, 141 man v. McWilliams, 70 Cal. 449 
 Mass. 45 ; Beekman v. Hendrickson Nichols v. Emery, 109 Cal. 323 
 (N. J.), 21 Atl. 567 ; Crue v. Cald- Nelson v. Ratliff, 72 Miss. 656 
 well, 52 N. J. L. 215; Dickerson's Haxton v. McClaren, 1.32 Tnd. 235 
 Appeal, 115 Penn. St. 198; Lines Copeland c. Summers, 138 Ind. 219 
 V. Lines, 142 id. 149; Stockett v. Brunson v. Henry, 140 111. 455 
 Ryan, 176 id. 71; Gaylord v. La- Strong i'. Weir, 47 S. C. 307 ; Riggan 
 fayette, 115 Ind. 423 ; Hatch v. v. Riggan, 93 Va. 78. 
 St. Joseph, 68 Mich. 220; Ewing 
 112
 
 CHAP. III.] VOLUNTARY SETTLEMENTS. [§ 104 
 
 only be revoked by the full consent of all parties in interest;^ 
 if any of the parties are not in being, or are not suijurin, it 
 
 conveyance not only deprived the grantor of all her property, without re- 
 serving a power of revocation to enable Iht to meet the exigencies of life, 
 but the arrangement whicli it made wa.s in other respects injudicious, 
 disadvantageous, and improvident. Tlie motives and intentions of the 
 motlier and uncle were most praiseworthy. Their design manifestly was 
 simply to put the property in such a position that the grantor could not 
 dispose of it without her mother's consent and concurrence. They in 
 good faith urged her to make the deed. She and they were alike under 
 an erroneous impression as to the effect of it. From the operation of 
 such a conveyance, made under such circumstances, equity will relicjve 
 the complainants. The rigidity of the ancient doctrine, that a voluntary 
 settlement, not obtained by fraud, is binding on the settlor, and will not 
 be set aside in equity, although the settlor has not reserved a power of re- 
 vocation (Villers v. Beaumont, 1 Vern. 100; Petre v. Espinasse, 2 ^I. & K. 
 490 ; Bill v. Cureton, 2 M. & K. 503), has been relaxed by modern decisions. 
 In the case first cited, Villers v. Beaumont, decided in 1GS2, the Lord Chan- 
 cellor said : ' If a man will improvidently bind himself up by a voluntary 
 deed, and not reserve a liberty to himself by a power of revocation, this 
 court will not loose the fetters he hath put on himself, but he must lie 
 down under his own folly.' Recent cases, however, have narrowed the 
 doctrine, and have held, not only that the absence of a power of revocation 
 throws on the person seeking to uphold the settlement the burden of prov- 
 ing that such a power was intentionally excluded by the settlor, and that in 
 the absence of such proof, the settlement may be set aside, but that equity 
 will set aside the settlement on the application of the settler, when it ap- 
 pears that he did not intend to make it irrevocable, or when the settlement 
 would be unreasonable or improvident for the lack of a pronsion for re- 
 vocation, (a) In Everitt v. Everitt (1S70), L. II. 10 Eq. 405, — a case 
 
 1 Hellman v. :Mc Williams, 70 Cal. 449. 
 
 (a) Voluntary settlements, with- sence of such power of revocation 
 
 out consideration, when testamen- is thus recrarded as merely one cir- 
 
 tary in character, are now often cumstance to be considered in weifjh- 
 
 treated as revocable, though a power ing all the circumstances of the case, 
 
 of revocation may not be therein Brown r. Mercantile Trust Co., 87 
 
 reserved. Neal v. Black, 177 Penn. Md. 377. In Massachusetts and 
 
 St. 83; Chestnut St. Nat. Bank v. Texas, it is held that a voluntary 
 
 Fidelity Ins. Co., 186 id. 333; Stur- tru-st completely established, with 
 
 geon i\ Stevens, id. 3.50 ; Wilson v. no power of revocation reservi'd, 
 
 Anderson, id. 531 ; Krankel t-. Kran- cannot be avoided by the person bv 
 
 kel (Ky.), 47 S. W. 1084. The ab- whom and with whose property it 
 VOL. 1.-8 113
 
 § 104.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 cannot be revoked at all.^ It is perfectly clear that where 
 the settlor did not misapprehend the contents of the deed, 
 
 almost precisely similar in its facts to that under consideration, — a vol- 
 untary settlement was set aside on the application of the donor. The 
 court said : ' It is very difficult indeed for any voluntary settlement, made 
 by a young lady so soon after she attained twenty-one, to stand, if she 
 afterwards changes her mind and wishes to get rid of the fetters which 
 she has been advised to put upon herself.' 
 
 " In Wollaston v. Tribe (1869), L. R. 9 Eq. 44, a voluntary gift which 
 was not subject to a power of revocation, but was meant to be irrevocable, 
 was held to be invalid, and was set aside on the donor's application. In 
 pronouncing the decree, the court said : ' Of course a voluntary gift is per- 
 fectly good if the person who makes it knows what it is, and intended to 
 carry it into execution.' In Coutts v. Acworth, L. R. 8 Eq. 558, it was 
 held that ' Where the circumstances are such that the donor in a voluntary 
 settlement or gift ought to be advised to retain a power of revocation, it 
 is the duty of the solicitor to insist on the insertion of such power, and 
 the want of it will in general be fatal to the deed.' In Prideaux t\ Lons- 
 dale (1863), 1 De G., J. & S. 433, a voluntary settlement, which the settlor 
 was advised to execute by persons under whose influence, as regarded 
 money matters, she was, and which subjected her property to trusts and 
 contained provisions which the court thought it was impossible to suppose 
 she understood, and against which she ought to have been advised and 
 cautioned, was set aside. In Hall v. Hall, L. R. 14 Eq. 365, it was held 
 that a voluntary settlement should contain a power of revocation ; and if 
 it does not, the parties who rely on it must prove that the settlor was 
 properly advised when he executed it, and that he thoroughly understood 
 the effect of omitting the power, and that he intended to be excluded 
 from the settlement, and further, if that is not established, and the court 
 sees from the surrounding circumstances that the settlor believed the in- 
 strument to be revocable, it will, even after the lapse of twenty years and 
 the death of the settlor, interfere and give relief against it. The decree 
 in that case was reversed. (1873, L. R. 8 Ch. App. 430.) In his opinion, 
 
 1 Shaw V. Delaware, &c. R. R. Co., 3 Stockt. 229. 
 
 was created. Lovett v. Farnham, trust-deed of a woman, made in con- 
 169 Mass. 1 ; Monday v. Vance (Tex.), templation of marriage, is not a mis- 
 49 S. W. 516. Also, in Massachu- take entitling her to relief. Taylor 
 setts, that such a trust can be set v. Buttrick, 165 ]\Iass. 547. In Rich- 
 aside only because of unsoundness ards v. Reeves, 149 Ind. 427, it was 
 of mind, fraud, mistake, or undue held that the absence of a power of 
 influence ; and that the mere omis- revocation in a voluntary settlement 
 sion of a power of revocation in the \s prima facie evidence of mistake, 
 114
 
 CHAP. III.] VOLUNTARY SETTLEMENTS. [§ 104. 
 
 and there was no fraud or undue influence, and no power of 
 revocation was reserved, the settlor is bound, though some 
 
 Selbonie, L. C, said: 'The absence of a power of revocation in a volun- 
 tary deed, not inipeaclied on the ground of any undue influence, is of 
 course material where it appears that the settlor did not intend to make 
 an irrevocable settlement, or where the settlement itself is of such a 
 nature, or was made under such circumstances as to be unreasonable and 
 improvident, unless guarded by a power of revocation.' Forshaw v. 
 Welsby, 30 Beav. 243, was a case where a voluntary settlement was made 
 by one, in extremis, on his family. It contained no power of revocation in 
 case of the settlor's recovery. On his recovery it was set aside on his 
 application, on the ground that it was not executed with the intention 
 that it should be operative in case of his recovery from his illness. See 
 also Huguenin v. Baseley, Lead. Cas. in Eq. 406; Cooky. Lamotte, 15 
 Beav. 241 ; Sharp v. Leach, 31 Beav. 491 ; Phillipson v. Kerry, 32 Beav. 
 623. It is not necessary, however, to rest a decision of this case adverse 
 to the deed on so narrow a foundation as the mere absence of a power of 
 revocation. The circumstances under which a voluntary deed was exe- 
 cuted may be shown, with a view of impeaching its validity, and if it 
 appears that it was fraudulent or improperly obtained, equity will decree 
 that it be given up and cancelled. In the present case there is no room 
 for doubt that the grantor was induced, by those in whom she very justly 
 placed confidence, and by whose better judgment she was willing to be 
 guided, to execute a voluntary deed whose effect she and they not only 
 did not understand, but, on the other hand, misapprehended; and which, 
 so far from being according to their intentions, was in two very important 
 respects, at least, admittedly precisely the reverse. It was irrevocable ; 
 but they all supposed it was revocable, and intended that it should be so. 
 It deprived the grantor of the power of sale; but they all supposed that 
 she would have that power, and intended that she should have it, clogged 
 only by the necessity of obtaining her mother's consent and concurrence 
 in any bargain or conveyance she might make. The deed contains no 
 power of sale whatever. The testimony of all the parties to the transac- 
 tion — the grantor, her mother and uncle — has been taken in the cause. 
 It satisfies me that the deed was not ' the pure, voluntary, well-understood 
 act of the grantor's mind ' (Lord Eldon in Huguenin v. Baseley), but was 
 unadvised and improvident, and contrary to the intention of all of them. 
 The fact that the infant children of the grantor are beneficiaries under 
 the deed will not prevent the court from setting it aside. Huguenin r. 
 Baseley; Everitt v. Everitt, ubi sup. There will be a decree that the deed 
 be delivered up to be cancelled." See also Rhodes v. Bates, L. R. 1 Ch. 
 252 ; Leach v. Farr, 13 Am. Law Reg. 350 (s. s.) ; Villers v. Beaumont, 
 1 Vern. 99; Bridgman v. Greene, 2 Yes. 627; Petre v. Espinasse, 2 M. & 
 K. 496; Bill v. Cureton, id. 511 ; Hastings l-. Ord, 11 Sim. 205; Coutts 
 
 115
 
 § 104.] EXrKESS TEUSTS, ETC. [CHAP. III. 
 
 contingency was forgotten and unprovided for.^ A policy of 
 insurance on the life of A., payable to his mother, who 
 furnished a portion of the money, is a trust which cannot be 
 revoked by a surrender of the policy, without the mother's 
 consent, and the issue of a new one in favor of A. 's wife.^ 
 The effect of the delivery of the deed of trust cannot be 
 impaired by any mental reservation of the grantor, or oral 
 condition repugnant to the terms of the deed.^ But where 
 the trust deed was never delivered to the trustee except for 
 safe keeping, and on the understanding that it should be 
 returned for cancellation on demand, and with the consent 
 of the cestui it was so returned and cancelled, no trust 
 arose. ^ If the voluntary settlement be subject to a life estate 
 in the settlor, and also subject to such debts as he contracts 
 during his life, he can defeat the trust by contracting debts 
 to the full amount of the estate, even if the debts are con- 
 tracted by giving voluntary bonds for the purpose of defeating 
 the settlement.^ If, however, the settlor has not reserved 
 the right to revoke the settlement, or to charge it with his 
 debts, he can do nothing to impair the rights of those in 
 remainder.^ Although the power of revocation is reserved, 
 the trust is as good and effectual as if irrevocable, until the 
 power is exercised.^ (a) Where the trust does not break the 
 
 V. Acwortb, L. R. 8 Eq. 538; Phillips v. Mullings, L. R. 7 Ch. 244; Hall 
 V. Hall, L. R. 8 Ch. 430; Toker v. Toker, 3 De G., J. & S. 487; Evans v. 
 Russell, 31 Leg. Int. 125. 
 
 ^ Keyes v. Carleton, 141 Mass. 45, 50. 
 
 2 Pingrey v. Nat'l Ins. Co. 144 Mass. 374, 382. 
 
 3 Wallace v. Berdell, 97 N. Y. 13. 
 
 * Burroughs v. De Couts, 70 Cal. 361. 
 ^ Markwell v. Markwell, 34 Beav. 12. 
 
 « Aubuchon v. Bender, 44 Mo. 560; Dean v. Adler, 30 Md. 147; Hall 
 V. Hall, L. R. 14 Eq. 365; Beal v. Warren, 2 Gray, 447. 
 T Van Cott V. Prentice, 104 N. Y. 45. 
 
 (a) See You Hesse v. MacKaye, when coupled with a power of ap- 
 
 136N. Y. 114; Hiserodt y. Hamlett, pointment, is not such an interest 
 
 74 Miss. 37, 47; In re Wells, 42 Ch. in the property as can be transferred 
 
 D. 646; Charles v. Burke, 60 L. T. to another, sold under execution or 
 
 380. Such power to revoke, even devised by will, or passed to an 
 116
 
 CHAP. III.] VOLUNTABY SETTLEMENTS. [§ 106. 
 
 natural course of descent of the property, and is not needed 
 for the protection of the life cestui, who is the grantor, 
 equity will, on application of the cestui, terminate the trust 
 and decree a conveyance.^ In this case the trust was made 
 by a woman before marriage for herself for life, remainder 
 to her appointees by will, or her heirs-at-law, if she died 
 intestate. After marriage she applied for a conveyance and 
 discharge of the trust, and as the natural descent was not 
 broken, and the laws of the State sufficiently protected 
 married women, the request was granted. 
 
 § 105. Nor is notice to the cestui que trust or to the 
 trustee, and acceptance by him, essential to the validity of a 
 voluntary trust as against the settlor, if it is otherwise 
 perfectly created. ^ But the absence of notice may become 
 a fact of more or less importance in determining whether 
 the trust is perfectly created or not.^ As between pur- 
 chasers for value, notice or no notice may have important 
 effects; but a voluntary trust, as between the settlor, the 
 trustee, and the cestui que trust, can be perfectly created 
 without it. 
 
 § 106. Under the statute of uses, uses could be raised 
 either upon a valuable or pecuniary consideration, or upon 
 what was called a good or meritorious consideration; that 
 is, a consideration arising out of blood, marriage, or family 
 
 1 Nightingale v. Nightingale, 13 R. I. 116. 
 
 2 Tate V. Leithhead, Kay, 658; Donaldson v. Donaldson, id. 711; 
 Roberts v. Lloyd, 2 Beav. 376 ; Burn v. Carvalho, 4 M. & Cr. 690; Sloper 
 V. Cottrell, 6 El. & Bl. 504; Gilbert v. Overton, 2 Hem. & Mill. 110; 
 Kekewich v. Manning, 1 De G., M, & G. 176 ; Tierney v. Wood, 19 Beav. 
 330; Lamb v. Orton, 1 Dr. & Sm. 125; Meux v. Bell, 1 Hare, 73; Otis v. 
 Beckwith, 49 111. 121. 
 
 8 Beatson v. Beatson, 12 Sim. 281 ; Meek r. Kettlewell, 1 Hare, 476 ; 
 1 Phill. 342; Bycroft v. Christy, 3 Beav. 238; Godsall v. Webb, 2 Keen, 
 99; McFadden i-. Jenkyns, 1 Phill. 153; Bridge v. Bridge, 16 Beav. 315; 
 Cecil V. Butcher, 2 J. & W. 573. 
 
 assignee. Jones v. Clifton, 101 112 U. S. 344; Hill v. Cornwall, 
 U. S. 225; Brandies i-. Cochrane, 94 Ky. 512. 
 
 117
 
 § 107.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 affection, and the moral obligation that every one is under 
 to provide for his family or relations. Thus, a covenant to 
 stand seized to the uses of a stranger, founded upon a 
 valuable consideration, operated under the statute as a deed 
 of bargain and sale to be enrolled, and conveyed the land to 
 the stranger. But a covenant in consideration of blood or 
 marriage, to stand seized to the use of a wife or child or 
 other relation, created a use only in the cestui que trust, and 
 the deed need not be enrolled. In all cases the consideration 
 of this conveyance was the foundation of it. Therefore, a 
 covenant to stand seized to the use of a stranger in con- 
 sideration of love or affection for him was inoperative for 
 want of a consideration; and a covenant in consideration of 
 blood or marriage, to stand seized to the use of a relative 
 and a stranger, vested the whole use in the relative, and 
 was inoperative as to the stranger. From this brief state- 
 ment can be seen the effect and meaning of what was called 
 a good or meritorious consideration under the statute of 
 uses.^ 
 
 § 107. In analogy to this doctrine, under the statute of 
 uses it has been urged that a voluntary post-nuptial settle- 
 ment in favor of a wife or child, executory in all its aspects, 
 would be enforced in favor of such wife or child on the 
 ground of a good or meritorious consideration for such 
 settlement. 2 And in Ellis v. Nimmo, Sugden, Lord Chan- 
 cellor of Ireland, after a most exhaustive examination of the 
 authorities, decided that the meritorious consideration of 
 providing for a child was sufficient to lead a court of equity 
 to enforce an executory contract against the settlor. ^ This 
 
 1 Sand. Uses, 90-101 ; 2 Black. Com. 338. 
 
 2 Bonham v. Newcomb, 2 Vent. 365 ; Leech v. Leech, 1 Ch. Cas. 249 ; 
 Fothergill v. Fothergill, Freem. 256 ; Sear v. Ashwell, and Gordon v. 
 Gordon, 3 Swanst. 411 ; Watts v. Bulks, 1 P. Wnis. 60 ; Bolton v. Bolton, 
 3 Sev. 414 ; Goring v. Nash, 3 Atk. 186; Darley v. Darley, id. 399; Hale 
 V. Lamb, 2 Eden, 292 ; Evelyn v. Templar, 2 Bro. Ch. 148 ; Colman v. 
 Sarel, 1 Ves. Jr. 50; 3 Bro. Ch. 12 ; Antrobus v. Smith, 12 Ves. 39; Rod- 
 gers V. Marshall, 17 Ves. 294 ; Ellison v. Ellison, 6 Ves. 656. 
 
 8 Ellis V. Nimmo, Lloyd & Goold, 333. 
 118
 
 CHAP. Ill] VOLUNTARY SETTLEMENTS. [§ 108. 
 
 case met witli considerable criticism, and several cases were 
 decided, more or less in opposition to it.^ In Moore v. 
 Crolton, he allowed it to be overruled, declaring, however, 
 at the same time, that he still thought it decided upon sound 
 principles of equity,^ so that now it may be considered as 
 settled in England, that an executory agreement founded on 
 a meritorious consideration only will not be executed against 
 the settlor himself.^ 
 
 § 108. As to other parties claiming under the settlor, if 
 he had sold the estate, or become indebted, the equity of a 
 wife or child claiming as cestui que trusty on the ground of a 
 meritorious consideration, would not be enforced against a 
 purchaser or creditors.* But if the settlor subsequently 
 made a voluntary settlement, or died without disposing of 
 the estate by some act inter vivos, there were authorities that 
 the voluntary cestui que trust could enforce his equity as 
 against other volunteers under another settlement,^ or 
 against devisees or legatees,^ or against the heir-at-law or 
 next of kin. 7 There was, however, this condition, that the 
 persons against whom the settlement was sought to be 
 enforced could not also plead a meritorious consideration; 
 for if they also were children of the settlor, the considera- 
 tions would be equal. In such cases the court referred it to 
 a master to report whether they had an adequate provision 
 
 1 Ilolloway r. Ileadington, 8 Sim. 324 ; Dillon v. Coppin, 4 My. & Cr. 
 646 ; Jefferys v. Jeffreys, 1 Cr. & Ph. 138. 
 
 2 Moore p. Crofton, 3 Jou. & La. 442. 
 
 ' Antrobua v. Smith, 12 Ves. 46; Holloway v. Ileadington, 8 Sim. 325; 
 Walrond v. Walrond, 1 Johns. 25. And see Phillips v. Frye, 14 Allen, 
 36 ; White v. White, 52 X. Y. 368. 
 
 * Bolton V. Bolton, 3 Swanst. 414, note ; Goring v. Xash, 3 Atk. 186 ; 
 Finch V. Winchelsea, 1 P. Wms. 277 ; Garrard v. Lauderdale, 2 R. & M. 
 154, 453. But see Mackay v. Douglass, L. R. 14 Eq. 100 ; Perrj- Herrick 
 V. Attwood, 2 De G. & J. 39 ; Beal r. Warren, 2 Gray, 447. 
 
 6 Bolton V. Bolton, 3 Swanst. 414. 
 « Ibid. 
 
 7 Watts V. Bullas. 1 P. Wms. 60; Goring i'. Xash, 3 Atk. 186; Rodgers 
 V. Marshall, 17 Ves. 294. 
 
 119
 
 § 108.] EXPRESS TliUBTS, ETC. [cHAP. III. 
 
 independent of the estate.^ But at the present day in Eng- 
 land it would appear that even as against volunteers claim- 
 ing under the settlor, with or without an adequate provision, 
 a voluntary executory agreement, whether under seal or not, 
 cannot be enforced on the mere ground of a meritorious 
 consideration.^ 
 
 1 Goring i'. Xiish, 3 Atk. 186 ; Rodgers v. Marshall, 17 Ves. 291. 
 
 2 Price V. Price, 14 Beav. 598; Colman v. Sarel, 1 Ves. Jr. 50; Jef- 
 ferys v. Jefferys, 1 Cr. & Ph. 138 ; Antrobus v. Smith, 12 Ves. 39; Evelyn 
 V. Templar, 2 Bro. Ch. 148 ; IloUoway v. Ileadington, 8 Sm. 331 ; Joyce 
 V. Hutton, 11 Ir. Ch. 123; Moore v. Crofton, 3 Jon. & La. 442. 
 
 Mr. Lewin (p. 95 of his 3d ed.) has discussed this whole matter with 
 a fulness that leaves little to be said. lie says : " It has also been sup- 
 posed that where the trust is imperfectly created, the court, without proof 
 of valuable consideration, will act upon a meritorious consideration, as the 
 payment of debts or provision for wife or child. The covenant to stand 
 seized to uses, and the jurisdiction of the court in supplying surrenders 
 and aiding the defective execution of powers, have generally been referred 
 to as establishing, or at least countenancing, this doctrine. 
 
 " As regards the covenant to stand seized to uses, it is evident that 
 mere meritorious consideration was not a sufficient ground to attract the 
 jurisdiction of the court; for no use would have arisen in favor of a wife 
 or child unless there had been a covenant. ' There are several ways in 
 the law,' said Lord Justice Holt, 'for declaring uses, whether upon trans- 
 mutation of the possession or not. If a use be declared upon a transmu- 
 tation of the po.ssession, as in a fine of feoffment, it is sufficient for the 
 party on the transmutation to dedare that the use shall be to such a party 
 of such an estate ; but if the use arise without transmutation of the pos- 
 session, the use then does not arise by virtue of any declaration or 
 appointment, but there must be some precedent obligation to oblige the 
 party declaring the use, which must be founded on some consideration j 
 for a use, having its foundation generally on grounds of equity, could not 
 be relieved in chancery without transmutation of possession, or an agree- 
 ment founded on a consideration ; and therefore if bargain and sale were 
 made of a man's lands, on the payment of the money, the use could have 
 arisen without deed by parol ; but if the use was in consideration of bloody 
 then it could not arise by parol agreement without a deed, because that agree- 
 ment was not an obliging agreement : it wanted a consideration, and therefore 
 to make it an obliging agreement, there tvas necessity of a deed.'' Jones v. 
 Morley, 12 Mod. 161. 
 
 " Thus, if equity be governed by the strict analogy of uses, the court 
 
 cannot act upon meritorious consideration where the contract is by parol ; 
 
 and though, where the agreement is under seal, the argument of analogy 
 
 applies, yet it follows not that equity will now raise a trust because for- 
 
 120
 
 CIIAJ'. III.] VOLUXTAUY SETTLEMENTS. [§ 109. 
 
 § 109. The tendency in the United States is to sustain 
 and carry into effect un executory trust in favor of a wife 
 
 inerly it would liave created a use. A bargain and sale for 5s. consider- 
 ation still operates by way of conveyance to transfer the estate ; but 
 should the bargain and sale be void as such for want of an indenture or 
 an indenture duly enrolled, it could not be argued that the agreement at 
 the present day would be specifically executed upon the basis of a trust. 
 It may further be remarked that if the covenant to stand seized to uses 
 were now to regulate the administration of trusts, there would still be no 
 ground fur extending the relief to creditors, who, however, it is admitted 
 on all hands, are equally entitled to the benefit of meritorious consider- 
 ation. And the covenant to stand seized to uses extended, we must re- 
 member, not only to wife and child, but also to brothers, nephews, and 
 cousins ; but no one at the present day would think of admitting the same 
 latitude in the execution of a trust. 
 
 *' "With respect to the jurisdiction of the court in supplying surrenders 
 of copyholds, the principle upon which the relief is founded appears to be 
 this, that as the heir was never meant by the law to take otherwise than 
 in default of the ancestor's will, if the ancestor manifests any intention 
 in favor of a meritorious object, the court will not suffer the mere want of 
 form to carry a benefit to the representative. ' I have looked,' said Lord 
 Alvanley, * at all the cases I can find uj)on what principle this court goes 
 in supplying the defect. It is this: whenever a man having power over 
 an estate, whether ownership or not, in discharge of moral or natural 
 obligation, shows an intention to execute such power, the court will oper- 
 ate upon the conscience of the heir to make him perfect this intention. 
 This is not to be confounded with the case of the heirs being disinherited 
 by a will of freeholds not duly executed: there is no will at all. The court 
 cannot see that there is such an instrument; but whenever there is such a 
 power, it has been executed.' Chapman v. Gibson, 3 Bro. Ch. 230. And 
 see Ellis v. Nimmo, Lloyd & Goold, 341. 
 
 " The ground upon which the courts aid the defective execution of poicers 
 will be found upon examination to be precisely that upon which it sup- 
 plies the surrender of copyholds. The power to the extent to which it 
 may be exercised is regarded in equity as part of the dominion, — as a 
 portion of the actual estate; and the donee of it is pro tanto the bond fide 
 owner of the property, and the person taking in default of the donee's 
 disposition is a quasi heir. Holmes v. Coghill, Vl Ves. 21o; Coventry v. 
 Coventry, at the end of Francis's Maxims in Equity. The only distinc- 
 tion between an actual heir and the person taking in default of the power 
 is this: that the former is so constituted by course of law, while the latter 
 is a qucLsi heir specially appointed by the settlor. Thus in aiding the de- 
 fective execution of powers the court says, as in supplying surrenders, the 
 donee of the power, who is the owner of the property to the extent of that 
 
 121
 
 § 109.] EXPEESS TRUSTS, ETC. [CHAP. III. 
 
 or child founded upon a meritorious consideration, if the 
 instrument is under scal,^ though the rule is not fully cstab- 
 
 power, has indicated an intention of providing for a meritorious object, 
 and the person taking in default of the power, who is a kind of heir, shall 
 not, tlirough want of form, run away with the estate from those who are 
 much better entitled. 
 
 "It is clear that an agreement founded on meritorious consideration 
 will not be executed as against the settlor himself. Antrobus v. Smith, 
 12 Ves. 39. Indeed, relief in such a case would offend against the security 
 of property ; for if a man improvidently bind himself by a complete aliena- 
 tion, the court will not unloose the fetters he hath put upon himself, but 
 he must lie down under his own folly. Villers v. Beaumont, 1 Vern. 101; 
 but if the court interpose where the act is left incomplete, what is it but 
 
 1 Stone V. Stone, L. R. 5 Ch. 74 ; Shepherd v. Bevin, 4 Md. Ch. 133; 
 9 Gill, 32; Harris r. Haines, 6 Md. 435; Mclntire v. Hughes, 4 Bibb, ISO; 
 Mahan v. Mahan, 7 B. Mon. 579; Bright v. Bright, 8 id. 194; Dennison 
 V. Goehring, 7 Barr, 175; Hayes v. Kershaw, 1 Sand. 258; Taylor v. 
 James, 4 Des. 6; Caldwell v. Williams, 1 Bailey Eq. 175; Garner v. Gar- 
 ner, 1 Busb. Eq. 1; Jones v. Obinchain, 10 Grat. 259; Harvey v. Alexau- 
 der, 1 Rand. 219; Blackely v, Ilolton, 5 Dana, 520; 2 Spence, Eq. Jur. 
 58; Pennington v. Gitting, 2 Gill & J. 208; Tolar u. Tolar, Dev. Ch. 451; 
 Thompson v. Thompson, 2 How. (Miss.) 737; Woodson v. McClelland, 
 
 4 IMiss. 495. But see Taylor v. Taylor, 2 Humph. 597 ; Martin v. Ramsey, 
 
 5 Humph. 349 ; Campbell's Estate, 7 Barr, 101 ; Kennedy v. Ware, 1 Barr, 
 445; Cressman's App. 42 Penn. St. 155; Bunn v. Wiiithrop, 1 Johns. Ch. 
 329. The above cases of Mclntire v. Hughes, Mahan v. Mahan, and Bright 
 V. Bright, are direct decisions upon the point, and fully establish the rule 
 for the State of Kentucky, while the cases of Bunn v. AVinthrop, Denni- 
 son V. Goehring, Jones v. Obinchain, and most of the other cases, pre- 
 sented a completely executed trust for enforcement, and the court was not 
 called upon to decide whether a meritorious consideration alone would 
 support an executory trust. In Hayes v. Kershaw, the settlement was 
 for a collateral relative, and the Vice-Chancellor declined to supjiort it, but 
 intimated in strong language that an executory trust for a wife or child 
 would be supported upon meritorious consideration merely. The cases 
 are very fully commented upon by the learned editors to 1 Lead. Cas. in 
 Eq. 330-333, with a strong leaning to the opinion that voluntaiy execu- 
 tory trusts for a wife or child would be supported. The learned editors 
 also express strong doubts whether the case of Ellis v. Nimmo, 1 Lloyd & 
 Goold, 333, is overruled by the cases which are usually thought to overrule 
 it; and their criticism is ingenious and acute. They do not, however, 
 advert to the case of Moore v. Crofton, 3 Jon. & La. 442. See Cox v. 
 Sprigg, 6 Md. 274. 
 
 122
 
 CIIAl'. III.] VOLUNTARY SETTLEMENTS. [§ 109. 
 
 lislicd, and perhaps, upon thorough consideration, would 
 not be acted upon. But the rule would be strictly confined 
 to a wife and child, and would not be extended to brothers, 
 sisters, nephews, or parents,^ and probably not to grand- 
 children,2 nor to illegitimate children.^ 
 
 to wrest property from a person who has not legally parted with it? An- 
 other observation that suggests itself is, that during the life of the settlor 
 the ground of the meritorious consideration scarcely seems to apply ; for 
 can it be thouglit to be the duty of a husband to endow his wife, during 
 the coverture, with a separate and independent provision? or is a parent 
 bound by any natural or moral obligation to impoverish himself (for such 
 a case may be supposed) for the purpose of enriching a child? or has a 
 court of equity the jurisdiction to appropriate a specific fund to creditors, 
 when the debtor is still living? the presumption of law is that the creditor 
 can obtain satisfaction of his debt by the usual legal process. It is after 
 the decease of tlie settlor that meritorious consideration becomes such a 
 powerful plea in a court of equity. The wife and children have then lost 
 the personal support of the husband and parent, and who can have a juster 
 claim to the inheritance of the property ? The creditor is then barred, 
 by Act of God, of his remedy against the debtor ; and should the assets 
 prove InsufBcient, how but by the assistance of equity can he hope to bo 
 satisfied in his demand? Another objection to the execution of a volun- 
 tary contract against the settlor himself, at least in respect of land, is the 
 principle expressed by Lord Cowper, that equity, like nature, will do noth- 
 ing in vain. Seeley v. Jago, 1 P. Wms. 389 ; Billiugham v. Lawthen, 1 Ch. 
 Cas. 243; Pulvertoft v. Pulvertoft, 18 Ves. 99; as if money be directed 
 to be converted into land, or land into money, the devisee or legatee may 
 elect to take the property in the original state, for should the court direct 
 an actual conversion, the devisee or legatee might immediately annul the 
 order by resorting to a reconversion ; and so, should the court decree a 
 specific performance of a contract regarding realty for meritorious con- 
 sideration, the property the next moment might be disposed of to a hond 
 fide purchaser, and the settlement become nugatory. Again, if the imper- 
 fect gift can be enforced against the settlor himself, then the equitable 
 right must form a lien upon the property; and upon the death of the set- 
 tlor his heir would, in all events, be bound to convey : but even in aiding 
 the defective execution of powers and supplying surrenders of copyholds, a 
 previous inquiry by the master is invariably directed whether the heir of 
 the settlor has any other adequate provision." 
 
 1 Downing v. Townsend, Amb. 592; Buford's Heirs v. M'Kee, 1 Dana, 
 107 ; Hayes v. Kershaw, 1 Sand. Ch. 258. 
 
 2 Buford's Heirs v. M'Kee, 1 Dana, 107. 
 
 8 Fursaker v. Robinson, Pr. Ch. 475; but see Buun v. Wiuthrop, 
 1 Johns. Ch. 329.
 
 § 111.] EXPRESS TRUSTS, ETC. [CHAP. III. 
 
 § 110. Marriage is a valuable consideration, therefore 
 executory agreements, made in contemplation of marriage, 
 will be enforced if the marriage actually takes place. ^ 
 
 § 111. A contract under seal imports a consideration, and 
 an action at law can be maintained upon such a contract. 
 And it has sometimes been supposed that a court of equity 
 would enforce a contract in favor of a volunteer whenever an 
 action of law could be sustained upon the instrument.^ 
 But equity never enforced a voluntary covenant, though 
 under seal, to stand seized to the uses of a stranger; and it 
 is now settled, in England, that equity will not enforce a 
 voluntary contract, although under seal.^ Equity will not 
 decree the specific performance of a contract, where a court 
 of law would give only nominal damages. In the United 
 States, however, considerable stress is laid upon the solem- 
 nity of a seal. The courts say that they will not execute a 
 voluntary executory agreement unless it is under seal,* 
 thereby implying that an executory contract under seal will 
 be enforced, though voluntary. And in Kentucky, where 
 the distinction between sealed and unsealed instruments is 
 now abolished, a voluntary executory contract not under 
 seal has been upheld.^ But there is the same uncertainty 
 
 1 Duval V. Getting, Gill, 38; Gough v. Crane, 3 Md. Ch. 119; Crane 
 r. Gough, 4 id. 316; Hale v. Lamb, 2 Eden, 271; Stone v. Stone, L. R. 
 5 Ch. 74. 
 
 2 Beard v. Nutthall, 1 Vern. 427; Williamson v. Coddrington, 1 Yes. 
 511; Hervey v. Audland, 14 Sim. 531; Husband v. Pollard and Randal v. 
 Randal, 2 P. Wms. 467; Vernon w. Vernon, id. 594; Goring v. Nash, 
 
 3 Atk. 186 ; Stephens v. Trueman, 1 Ves. 73 ; Wiseman v. Roper, 1 Ch. 
 R. 158. 
 
 8 Hale V. Lamb, 2 Eden, 294; Fursaker v. Robinson, Pr. Ch. 475; 
 Evelyn v. Templar, 2 Bro. Ch. 148; Colman v. Sarel, 3 id. 12; Jeiferys 
 V. Jefferys, 1 Cr. & Ph. 138; Meek v. Kettlewell, 1 Hare, 464 ; Fletchers. 
 Fletcher, 4 id. 74; Newton v. Askew, 11 Beav. 145; Dillon v. Coppin, 
 
 4 M. & Cr. 647; Kekewich v. Manning, 1 De G., M. & G. 188; Dening 
 V. Ware, 22 Beav. 184. 
 
 * Kennedy v. Ware, 1 Barr, 445 ; Caldwell v. W^illiams, 1 Bailey, Eq. 
 175 ; Dennison v. Goehring, 7 Barr, 175 ; Mclntire v. Hughes, 4 Bibb, 
 186. 
 
 6 Mahan v. Mahan, 7 B. Hon. 579. 
 
 124
 
 CIIAl'. III.] VOLUNTAIiY SETTLEMENTS. [§llla. 
 
 wlietlitT a seal would render a voluntary executory contract 
 binding in equity, as there is whether a mere meritorious 
 consideration will enable the court to enforce the settlement. 
 Generally, in America, very little regard is paid to mere 
 formalities, and a seal is regarded in most States as a mere 
 formality. A mere scratch or scroll of the pen passes for a 
 seal, and in some States they arc abolished altogether. 
 Why any effect should be given to a form that has ceased to 
 be a solemnity would be hard to explain on principle, and is 
 equally uncertain upon the authorities. 
 
 § 111 rt. By the construction given to the New York 
 statutes a trust to sell land for the benefit of creditors and 
 legatees must be absolute and imperative without discretion 
 in the trustee ; and a trust to receive rents and profits is not 
 valid if there is no direction to apply them to the use of any 
 person or for any period. ^ 
 
 1 Cooke V. riatt, 98 N. Y. 38, 39. 
 
 125
 
 § 112.] IMPLIED TKUSTS. [CHAP. IV. 
 
 CHAPTER IV. 
 
 IMPLIED TRUSTS. 
 
 § 112. The manner iu which trusts are implied, and the words from which 
 they are implied. 
 
 § 113. Words from which a trust will not be implied. 
 §§ 114-116, Rules by which trusts will or will not be implied. 
 §§ 117, 118. Implied trusts from directions as to the maintenance of children or 
 others. 
 
 § 119. When trusts for maintenance are not implied. 
 
 § 120. Rules that govern implied trusts. 
 
 § 121. Trusts arising by implication from the provisions of a will. 
 
 § 122. Implied trusts arising from contracts. 
 
 § 123. A direction to employ certain persons does not raise an implied trust. 
 
 § 112. Implied trusts are those that arise when trusts are 
 not directly or expressly declared in terms, but the courts, 
 from the whole transaction and the words used, imply or 
 infer that it was the intention of the parties to create a 
 trust. ^ (a) Courts seek for the intention of the parties, 
 however informal or obscure the language may be ; and if a 
 trust can fairly be implied from the language used as the 
 intention of the parties, the intention will be executed 
 through the medium of a trust. Implied trusts may arise 
 out of agreements and settlements inter vivos^ where there is 
 
 1 Lane v. Lane, 8 Allen, 350. 
 
 2 Liddard v. Liddard, 28 Beav. 266. 
 
 (o) In Gorrell v. Alspaugh, 120 division of implied triists as dis- 
 
 N. C. 362, 366, Douglas, J., said: tinguished both from resulting and 
 
 " Implied trusts are either resulting constructive trusts; but this dis- 
 
 or constructive. In this State aU tinction does not seem to be recog- 
 
 implied trusts are generally de- nized in this State, nor, indeed, in 
 
 nominated parol trusts, referring the Statute of Frauds (29 Charles 
 
 to their origin and nature of proof IL, ch. 3, § 8), -which refers to a 
 
 rather than their incidents and re- trust ' arising or resulting by impli- 
 
 sults. Some eminent authorities, as cation or construction of law.' " 
 Lewin and Perry, make a separate 
 126
 
 CHAP. IV.] PRECATORY WORDS. [§ 112. 
 
 a sufficient consideration ; but they more frequently arise 
 from the construction of wills where a consideration is 
 implied. In Pennsylvania, such words as "my wish is," 
 "my further request is," or others merely expressive of a 
 desire, recommendation, or confidence, arc not sufficient to 
 convert a devise or bequest into a trust. ^ But the general 
 rule is that if a testator make an absolute gift to one person 
 in his will, and accompany the gift with words exjn-essing a 
 "belief, "2 " desire, "^ "will,"^ " request, "^ "will and de- 
 sire;"^ or, if he "will and declare,"' "wish and request,"^ 
 "wish and desire,"^ "entreat," ^"^ "most heartily beseech, "^^ 
 "order and direct, " ^^ ^^) "authorize and empower, "^^ 
 
 1 Hopkins v. Glunt, 111 Penn. St. 287; Bowlby i;. Thunder, 105 id. 
 178; Colton v. Coltou, 10 Sawyer, 325. 
 
 2 Gary v. Gary, 2 Sch. & Le. 189 ; Paul v. Gompton, 8 Ves. 380. 
 
 * Harding v. Glyn, 1 Atk. 469 ; Mason v. Limbury, and Vernon v. 
 Vernon, Amb. 4; Trot v. Vernon, 8 Vin. Abr. 72; Pushman v. Filliter, 
 3 Ve.s. 7; Brest v. Offley, 1 Ch. R. 246; Bonser v. Kinnear, 2 Gif. 195; 
 Gruwys i\ Golman, 9 Ves. 319; Shaw v. Lawless, Lloyd & Goold, 154; 
 5 CI. & Fin. 129 ; Lloyd & Goold, Tem. Plunket, 559. 
 
 4 Ealea v. England, Pr. Gh. 200; Glowdsley v. Pelham, 1 Vern. 
 411. 
 
 6 Pierson i'. Garnet, 2 Bro. Ch. 38, 226; Eade v. Eade, 5 Mad. 118; 
 Moriarty v. Martin, 3 Jr. Ch. 26; Bernard v. Minshull, 1 Johns. 276; 
 Kuox r. Knox, 59 Wis. 172. 
 
 « Birch V. Wade, 3 Ves. & B. 198 ; Forbes v. Ball, 3 Mer. 437. 
 
 ' Gray v. Gray, 11 Jr. Ch. 218. 
 
 8 Foley V. Parry, 5 Sim. 139; 2 M. & K. 138; Cook i'. Ellington, 6 
 Jones, Eq. 371. 
 
 9 Liddard v. Liddard, 28 Beav. 266 ; Cockrill v. Armstrong, 31 Ark. 
 580. 
 
 10 Prevost v. Clarke, 2 Mad. 458; Meredith v. Heneage, 1 Sim. 543; 
 Taylor v. George, 2 Ves. & B. 378. 
 " Meredith v. Heneage, 1 Sim. 553. 
 
 12 Gary v. Gary, 2 Sch. & Le. 189 ; White v. Briggs, 2 Phill. 583. 
 18 Brown v. Higgs, 4 Ves. 708 ; 5 id. 495 ; 8 id. 5G1 ; 18 id. 192. 
 
 (a) Such words as "order "and tion, by a later clause in a will 
 " direct " are now treated as pj-ima which contains them. See Gollister 
 facie mandatory ; they are impera- v. Fassitt, 39 N. Y. S. 800 ; 38 id. 
 tive words, even when a discretion 601. 
 is given, as to the mode of execu- 
 
 127
 
 § 112.] IMPLIED TRUSTS. [CHAP. IV. 
 
 "recommend,"^ "hope," 2 «do not doubt, "^ "be well 
 assured,"* "confide,"^ "have the fullest confidence,"^ 
 "trust and confide,"^ "have full assurance and confident 
 hope ; " ^ or, if he make the gift " under the firm conviction, " ^ 
 or " well knowing ; " ^^ or, if he use the expression, " of course 
 the legatee will give,"" or, "in consideration that the lega- 
 tee has promised to give,"^^ — jjj these and similar cases 
 courts will consider the intention of the testator as mani- 
 festly implied, and they will carry the intention into effect 
 by declaring the donee or first taker to be a trustee for those 
 whom the donor intended to benefit. ^^ And so the words, 
 "it is my wish,"^* "it is my wish and will,"^^ "having con- 
 
 1 Tibbits V. Tibbits, Jac. 317; 19 Ves. 656; Horwood v. AVest, 1 Sim 
 & St. 387 ; Paul v. Compton, 8 Ves. 380 ; Malim v. Keighley, 2 Ves. Jr. 
 333, 529; Malim v. Barker, 3 Ves. 150 ; Meredith v. Heneage, 1 Sim. 543; 
 Kingston v. Lorton, 2 Hog. 166; Cholmondeley v. Cholmondeley, 14 Sim. 
 590; Hart v. Tribe, 18 Beav. 215; Meggison v. Moore, 2 Ves. Jr. 630; 
 Sale V. Moore, 1 Sim. 534 ; Ex parte Payne, 2 Y. & Coll. 636 ; Randal v. 
 Hearle, 1 Anst. 124 ; Lefroy v. Flood, 4 Ir. Ch. 1 ; Cunliffe v. Cunliffe, 
 Amb. 686, distinguished in Pierson v. Garnet, 2 Bro. Ch. 46 ; Malim v. 
 Keighley, 2 Ves. Jr. 333; Pushman v. Filliter, 3 Ves. 7; Webster v. 
 Morris, 66 Wis. 366. 
 
 2 Harland v. Trigg, 1 Bro. Ch. 142 ; Paul v. Compton, 8 Ves. 380. 
 
 8 Parsons v. Baker, 18 Ves. 476; Taylor v. George, 2 Ves. & B. 378; 
 Malone v. O'Connor, Lloyd & Goold, 465 ; Sale v. Moore, 1 Sim. 534. 
 
 * Macey v. Shurmer, 1 Atk. 389 ; Anst. 520 ; Ray v. Adams, 3 M. & 
 K. 237. 
 
 fi Griffiths V. Evans, 5 Beav. 241 ; Shepherd w. Nottidge, 2 J. & H. 766. 
 
 6 Shovelton v. Shovelton, 32 Beav. 143 ; Wright v. Atkyns, 17 Ves. 
 255; 19 id. 299 ; G. Cooper, 111; T. & R. 143; Webb v. Wools, 2 Sim. 
 N. s. 267 ; Palmer v. Simmonds, 2 Dr. 225; Warner v. Bates, 98 Mass. 274. 
 
 ' Wood V. Cox, 1 Keen, 317 ; 2 My. & Cr. 684 ; Pilkington v. Boughey, 
 12 Sim. 114. 
 
 8 Macnab v. Whitbread, 17 Beav. 299. 
 
 9 Barnes v. Grant, 2 Jur. (n. s.) 1127 ; 26 L. J. Ch. 92. 
 
 ^° Bardswell v. Bardswell, 9 Sim. 319 ; Nowland v. Nelligan, 1 Bro. Ch. 
 489 ; Briggs v. Penny, 3 Mac. & G. 546 ; 3 De G. & Sm. 525. 
 
 " Robinson v. Smith, 6 Madd. 124; Lechmere v. Lavie, 2 M. & K. 197. 
 1* Clifton V. Lombe, Amb. 519. 
 
 " Warner v. Bates, 98 Mass. 276; Lambe v. Eames, L. R. 10 Eq. 267. 
 1* Brunson v. Hunter, 2 Hill Ch. 490. 
 " McRee's Ad'r v. Means, 34 Ala. 349. 
 128
 
 CHAP. IV.] PRECATORY WORDS. [§ 112, 
 
 fidence,"! "I desire that the donee should appropriate $50 
 per year, "2 "to be disposed of and divided amon<^ my chil- 
 dren," ^ "with full conlidcnce that they will dispose of such 
 residue among our brothers and sisters according to their 
 best discretion,"* "intrusting to her the education and 
 maintenance of his children out of the profits of the estate," ^ 
 " I also allow my son to give her a support off my plantation 
 during her life,"^ were held to create trusts in favor of the 
 parties to be benefited. And so, where a testator gave a sum 
 of money to trustees "to pay the income yearly to his son 
 for the support of himself and family, and the education of 
 his children," it was held that the income was taken in 
 trust by the son, and that the wife and children could enforce 
 its appropriation in part for their support.' "To my 
 
 1 Dresser v. Dresser, 46 Maine, 48 ; Reid's Ad'r v. Blackstone, 14 Grat. 
 363. 
 
 2 Ericksoii v. Willard, 1 N. II. 217. 
 8 Collins V. Carlisle, 7 B. Mon. 14. 
 
 4 Bull V. Bull, 8 Conn. 47. 
 
 ^ Lucas V. Lockhart, 10 Sm. & Mar. 466. 
 
 * Hunter v. Stembrid^e, 12 Ga. 192. In this case the court construed 
 the word allow as expressive of an intention — the testator being an illit- 
 erate man — that the son should support his mother out of the property 
 given him, and that an absolute charge or trust was implied. 
 
 7 Cole V. Littlefield, 35 Maine, 439 ; Wright v. Miller, 8 N. Y. 9 ; 1 Sandf. 
 103 ; Whiting v. Whiting, 4 Gray, 240; Chase v. Chase, 2 Allen, 101; 
 Hadow I'. Iladow, 9 Sim. 438 ; Jubber v. Jubber, id. 503 ; Longmore v. 
 Elcuni, 2 Y. & C. Ch. 303; Leach v. Leach, 13 Sim. 304; Hart v. Tribe, 
 19 Bcav. 149 ; Raikes v. Ward, 1 Hare, 445 ; Crockett v. Crockett, 2 
 Phill. 555. Technical language is not necessary to create a trust. It is 
 enough if such intention is apparent. Thus words of recommendation, 
 request, entreaty, wish, or expectation, addressed to a devisee or legatee, 
 will make him a trustee for those persons in favor of whom such ex- 
 pressions are used ; provided that, from tlie construction of the whole 
 will, such is the apparent intention of the testatoi, and provided that he 
 has pointed out with sufficient clearness and certainty both the subject- 
 matter and the object of the trust. Thus, in Massey v. Sherman, Amb. 
 520, a testator devised property to his wdfe, not doubting that she would 
 dispose of the same to and among his children as she should please, it 
 was held to be a trust for the children. See also Macey v. Shurmer, 
 1 Atk. 389 ; Wynne v. Hawkins, 1 Bro. Ch. 179 ; Parsons t;. Baker, 18 
 Ves. 470 ; Malone v. O'Connor, 2 Lloyd & Goold, 465. And in Pierson v. 
 VOL. I. — 9 129
 
 § 112.] IMPLIED TRUSTS. [CHAP. IV. 
 
 daughter A. I give [naming certain property] for the sup- 
 port of my daughter C." creates a trust. ^ 
 
 Garnet, 2 Bro. Ch. 38, 226, a testator gave a residue to A., with his dying 
 request that if A. died without issue he would dispose of it in a certain 
 manner pointed out ; but Lord Kenyon and Lord Thurlow held that, in 
 the event, a trust was implied and created. And see Re O'Bierne, 1 Jon. 
 & La. 352. And so in Malim v. Keighley, 2 Ves. Jr. 333, 359, a testator 
 recommended a daughter, to whom he made a bequest, to dispose of it 
 at her death in a certain manner, and it was held to create a trust. 
 See also Paul v. Comptom, 8 Ves. 380 ; Ford v. Fowler, 3 Beav. 146 ; 
 Knott V. Cottee, 16 Beav. 77; Cholmondeley v. Cholmondeley, 14 Sim. 
 590. But in ^leggison v. Moore, 2 Ves. Jr. 630, the word " recommend,' 
 under the peculiar circumstances of the case, was held not to create a 
 trust ; but the case throws no particular light upon the principle. In 
 Bird V. Wade, 3 Ves. & B. 198, 2 Ves. 467, the testator added to his 
 bequest of a part of his property that it was his will and desire that 
 the bequest be left entirely to her disposal among such of her relations as 
 she may think proper. The devisee having died without disposing of the 
 property, it was held to be a trust for her next of kin. See also Brest v. 
 Offley, 1 Ch. R. 246 ; Harding v. Glyn, 1 Atk. 469; Earl of Bute i-. Stuart, 
 2 Eden, 87; 1 Bro. P. C. Taml. 476; Wright v. Atkyns, 19 Ves. 209; 
 Cooper, 111 ; Gary v. Gary, 2 Sch. & Lef. 173, 189 ; Forbes v. Bale, 3 Mer. 
 441 ; Horwood v. West, 1 Sim. & St. 387. 
 
 In Prevost v. Clarke, 2 Madd. 458, a testatrix gave property to her 
 daughter, and "entreated" her son-in-law, husband of the daughter, if 
 he should not have children by her daughter and should survive her, that 
 he would leave any part of the property that came to him to her other 
 children and grandchildren at his decease. These words were held to 
 create a contingent trust for her other children and grandchildren. So in 
 Pilkington v. Boughey, 12 Sim. 114, where a testator recited in his will 
 that he had purchased an estate for a particular purpose, and then devised 
 it to certain individuals in trust, and '• trusted " that they would apply it 
 to such purposes as they knew he would most approve of, it was held to be 
 a trust. In Foley v. Parry, 2 ]\Iy. & K. 138, a testator gave property to 
 his wife for life, the remainder to his nephew for life, and then declared 
 it to be his particular wish and request that his wife, or a third person, 
 should superintend and take care of the education of his nephew; and it 
 was determined that there was a trust in the life-estate given to the widow 
 to maintain and educate the nephew until he was twenty-one. See also 
 same case in 5 Sim. 138. So more doubtful expressions have been held 
 to create trusts: as " I desire him to give," Mason v. Limbury, cited 
 Vernon v. Vernon, Amb. 4; "I hereby request," Nowlan v. Nelligan, 
 
 1 BuflBinton v. Maxam, 140 Mass. 557. 
 130
 
 CHAP. IV.] piiecatoi:y words. [§ 113. 
 
 § 113. On the other hand, it has been held that no trust 
 was imi)licd when property was given to a donee connected 
 
 1 Bro. Ch. 489; "I empower and authorize her to settle and di.spose of 
 the estate to such persons as she shall think fit by her will, confiding in 
 her not to alienate the estate from my family," Griffiths v. Evans, 5 Beav. 
 241 (see also Brook v. Brook, 3 Sm. & Gif . 280 ; Alexander v. Alexander, 
 
 2 Jur. (n. s.) 898; " I advise him to settle," Parker v. Bolton, 5 L. J. 
 (x. s.) Ch. 98; " My last wish, my dear daughter, is that you do give my 
 granddaughter £1000," Ilinxman v. Poynder, 5 Sim. 546; " require and 
 entreat," Taylor v. George, 2 Ves. & B. 378 ; " trusting that he will preserve 
 the same, so that, after his decease, it will go and be divided," etc.. Baker 
 V. Mosely, 12 Jur. 740 ; " under the conviction that he will dispose," etc., 
 Barnes v. Grant, 26 L. J. Ch. 92, 2 Jur. (n. s.) 1127; "to apply the 
 same," Saulsbury v. Denton, 3 K. & J. 392; " the other children may be 
 allowed to participate," etc., Liddard v. Liddard, Jur. (n. s.) 459, 28 
 Beav. 266. As before said, however, such expressions will not create a 
 trust, if by the context no trust is intended to arise; as if a trust is at one 
 time created, but by a codicil is revoked on account of the inconvenience, 
 and there is a direction that the " property be disposed of for the good of 
 the family," Alexander v. Alexander, 2 Jur. (x. s.) 898. The question 
 in all cases is, is the devisee or legatee a beneficiary or a trustee of the 
 gift bestowed upon him ; and that depends upon the intention of the tes- 
 tator. But parol evidence of the intention of the testator cannot be intro- 
 duced, Irvine i\ Sullivan, L. R. 8 Eq. 673. If there is a direct trust, there 
 is no doubt ; if there are precatory words, then it remains to determine 
 whether there is an imperative trust, or whether the words are merely 
 suggestions to guide the discretion of the devisee in disposing of the 
 property, tlie testator having implicit confidence and reliance in him, and 
 leaving him the sole judge whether he will follow the suggestions or not. 
 If the testator supposed that he was creating an imperative trust, whether 
 express or imperative from precatory words, a trust will be raised because 
 such is the intention ; and if such trust fails because the purposes of the 
 trust are uncertain, or the amount of the property of the trust is uncer- 
 tain, or for any other reason, it will still be a trust ; but it will result to 
 the heirs-at-law, next of kin, or residuary legatees. See post, §§ 15.'3-1G1. 
 But such uncertainty in the objects of the trust, or in the persons to 
 be benefited, or in the amount of the property to be subjected to the 
 trust, or in the manner of applying it, are facts and circumstances, if 
 they exist in the will itself, which are to be taken into consideration 
 in construing it. See post, § 116; Barnard r. IMinshull, 1 Johns. 287, 
 1 Jarm. on Wills, 359 (3d Loud. ed.). There is also another considera- 
 tion. If there is an absolute gift in the first instance to the donee, 
 mere precatory words will not in general annex a trust to the gift : as in 
 Meredith v. Heneage, 1 Sim. 542, 10 Price, 306, the bequest was to the 
 
 131
 
 § 113.] IMPLIED TKUSTS. [CHAP. IV. 
 
 with expression of kindness and good-will towards other 
 persons, as with a hope that "he would continue it in the 
 
 donee, " unfettered and unlimited," followed by precatory words, and 
 they were held not to create a trust. In Bonser v. Kinnear, 2 Gif. 1D5, 
 there was a gift to the wife '■^ for her sole use and benefit, she maintaining 
 the children;'''' it was held to be a trust, the words implying the trust 
 being a part of the gift. But in Wood v. Cox, 1 Keen, 317, there was a 
 gift to the devisee " for his own use and benefit," trusting and wholly 
 confiding in his honor to act in strict conformity to the testator's wishes. 
 There were some other circumstances, and Lord Langdale held it to be 
 an implied trust; but Lord Cottenham said that, to make the devisee a 
 trustee, the words " for his own use and benefit " must be expunged from 
 the will: 2 My. & Cr. 686; and see the judgment in the case of Irvine v. 
 Sullivan, L. R. 8 Eq. 673. In Winch v. Brutton, 14 Sim. 379, and in 
 Bardswell v. Bardswell, 9 id. 319, there were gifts to the use, benefit, 
 and disposal, absolutely of the devisees, " nevertheless earnestly conjuring 
 them" to dispose of them in a certain manner; and it was held that, 
 under the form of the gifts there, there were no trusts. See also White 
 V. Briggs, 15 Sim. 38; Fox v. Fox, 27 Beav. 301. So in Johnson v. 
 Rowlands, 2 De G. & S., a gift to be disposed of as she shall think proper, 
 followed by a recommendation, was held not to create a trust. The case 
 of Williams v. Williams, 1 Sim. (n. s.) 358, is nearly to the same effect; 
 and see Green v. Marsden, 1 Drew. 646. In some of these cases the ele- 
 ment of uncertainty enters into the construction : see Bardswell v. Bards- 
 well, 14 Sim. 879; Williams v. Williams, 1 Sim. (n. s.) 858; Webb w. 
 Wools, 2 Sim. (n. s.) 267, was a strong case in this respect. The gift 
 was to the wife, her executors, administrators, and assigns, " to and for 
 her and their sole use and benefit, upon the fullest trust and confidence 
 that she will dispose of the same," &c. It was said that to allow the 
 latter words to create a trust would be to counteract the former words. 
 In other cases where the gift was in nearly the same words but " in full 
 confidence that she will bestow it, on her decease, to my children," &c., 
 Le Marchant i'. Le Marchant, L. R. 18 Eq. 414; Curnick v. Tucker, 
 L. R. 17 Eq. 820, it was held that the widow took a life-estate, with a 
 power to appoint among the children : Ware v. Mallard, 21 L. J. Ch. 355; 
 16 Jur. 492; Gully v. Cregoe, 24 Beav. 185. If the words of gift to the 
 ■wife may be construed as making the gift to her sole and separate use, 
 independent of her husband, the trust may be sustained : Cholmondeley 
 V. Cholmondeley, 14 Sim. .590. See also Stubbs v. Sargon, 2 Keen, 255, 
 3 My. & Cr. 513; but see Green v. Marsden, 1 Drew. 646. If the expres- 
 sions are mere statements of good-will towards other persons, a trust will 
 not be implied: Buggins v. Yeats, 8 Vin. Ab. 72, PL 27; Sale v. Moore, 
 1 Sim. 534; Hoy v. Master, 6 Sim. 568; Reeves v. Baker, 18 Beav. 372; 
 Lechmere v. Lavie, 2 My. & K. 197; Abraham v. Almon, 1 Russ. 509; 
 132
 
 CHAP. IV.] PRECATORY WORDS. [§ 113. 
 
 family;"^ or, with a request, "to distribute it among such 
 members of the donee's family" as he should deem most 
 deserving; 2 or, "in full confidence that the donee would 
 devise it to such heirs of the testator's father as she might 
 think best deserved a preference;"^ or with a recommenda- 
 tion that the donee "would consider the testator's rela- 
 tions;"* or, where the recommendation was "to consider 
 certain persons,"^ "to be kind to them,"" "to remember 
 
 Harland v. Trigg, 1 Bro. Ch. 1 12 ; Curtis v. Rippon, 5 Madd. 4-34. But 
 where a testator gave property to his son, and ordered him to take care 
 and provide for his daughter, it was held that she was entitled to a pro- 
 vision: Broad v. Bevan, 1 Russ. 511, n. It must be repeated, that in many- 
 cases the element of uncertainty as to the property to be affected by the 
 words of recommendation has entered largely into the construction given 
 to wills by courts ; and in that, as in most other circumstances attending 
 the construction of a will, each case must depend upon the particular 
 words of the will and the context in which they are found. See Lefroy 
 V. Flood, 4 Ir. Ch. 1, 12; Wynne v. Hawkins, 1 Bro. Ch. 179; Ilorwood 
 V. West, 1 Sim. & St. 387; Iluskisson v. Bridge, 15 Jur. 738; Young v. 
 Martin, 2 Y. & C. Ch. 582, Ex parte Vajne, id. 63G; Knight v. Knight, 3 
 Beav. 148; Knight v. Boughton, 11 CI. & Fin. 513; 12 Beav. 312; 
 Bonser i-. Kinnear, 2 Gif. 195; Quayle v. Davidson, 12 Moore, P. C. 268; 
 Maud V. Maud, 27 Beav. 615. But see Malone v. O'Connor, 2 Lloyd & 
 Goold, 465. Of course, if no trust is implied from the words of recom- 
 mendation used in the will, the donee takes the absolute beneficial as well 
 as legal interest to the extent to which it is limited. Stubbs v. Sargon, 
 2 Keen, 255; 3 My. & Cr. 507 ; Gloucester v. Wood, 3 Hare, 131 ; 1 H. L. 
 Cas. 272; Briggs v. Penny, 3 De G. & S. 547 ; 3 Mac. & G. 546; Fowler 
 V. Garlike, 1 R. & My. 232. But if a trust is intended, but it is so un- 
 certain that it cannot be executed, it will result to the heir or next of 
 kin, or residuary legatee or devisee, according to the circumstances. 
 
 1 Harland v. Trigg, 1 Bro. Ch. 142 ; Wright ;;. Atkyns, 19 Yes. 279 ; 
 G. Coop. 121 ; Woods v. Woods, 1 M. & Cr. 401 ; Parkinson's Trust, 1 
 Sim. (n. 8.) 242 ; Williams v. Williams, id. 358. See also White v. 
 Briggs, 2 Phill. 583 ; Liley v. Hey, 1 Hare, 580. 
 
 2 Green v. Marsden, 1 Drew. 64G. 
 
 * Meredith v. Ileneage, 1 Sim. 542; and see Wright v. Atkyns, G. 
 Coop. 119 ; Curnick v. Tucker, L. R. 17 Eq. 320. 
 
 * Sale V. Moore, 1 Sim. 534; Macnab v. Whitbread, 17 Beav. 299; 
 Wright V. Atkyns, G. Coop. 119. 
 
 6 Ibid. ; Hoy v. Master, 6 Sim. 568. 
 ^ Buggins V. Yates, 9 Mod. 122. 
 
 133
 
 § 113.] IMPLIED TRUSTS. [CHAP. IV, 
 
 tliem,"^ "to do justice to thein,"^ "to make ample provision 
 for them,"^ "to use the property for herself and her chil- 
 dren, and to remember the church of God and the poor,"^ 
 " to give what should remain at his death, or what he should 
 die seized or possessed of,"^ or, "to hnally appropriate as 
 he pleases;" with a recommendation "to divide among cer- 
 tain persons, " *^ or, "to divide and dispose of the savings,^ 
 or the bulk of the property ; " ^ or, where the testator " recom- 
 mends, but does not absolutely enjoin; "^ or, where a 
 testator gave all his property to his wife absolutely, and by 
 a codicil, in the form of a letter to her, said it was his wish 
 " that she should have everything, using her judgment when 
 to dispose of it among her children, but that he should be 
 unhappy if he thought that any one not of her family should 
 be the better for what he felt confidence she would so well 
 dispose of;"^^ or, where everything was given to a "wife in 
 the fullest trust and confidence reposed in her that she will 
 dispose of the same for the joint benefit of herself and my 
 children,"" or where an estate was given to a wife, "being 
 fully satisfied that she will dispose of the same, by will or 
 otherwise, in a fair and equitable manner to our united 
 relatives, bearing in mind that my relatives are in better 
 
 1 Bardswell v. Bardswell, 9 Sim. 319. 
 
 2 Le Maitre v. Banuister, Pr. Ch. 200, and note ; Pope v. Pope, 10 
 Sim. 1. 
 
 8 Winch V. Brutton, 14 Sim. 379; Fox v. Fox, 27 Beav. 301. 
 
 4 Curtis V. Pvippon, 5 Madd. 434. 
 
 6 Sprange v. Barnard, 2 Bro. Ch. 585; Green v. Marsden, 1 Drew. 646 ; 
 Pushman v. Filliter, 3 Ves. 7; Wilson v. Major, 11 Ves. 205 ; Eade v. 
 Eade, 5 Madd. 118 ; Wynne v. Hawkins, 1 Bro. Ch. 179; Lechmere v. 
 Lavie, 2 M. & K. 197 ; Bland v. Bland, 2 Cox, 349 ; Att. Gen. v. Hall, 
 Fitzg. 314 ; and see Meredith v. Heneage, 1 Sim. 542 ; Tibbits v. Tibbits, 
 19 Ves. 655; Pope v. Pope, 10 Sim. 1. 
 
 ^ White V. Briggs, 15 Sim. 33. 
 
 ^ Cowman v. Harrison, 10 Hare, 234. 
 
 8 Palmer v. Simmonds, 2 Drew. 221. 
 
 9 Young V. Martin, 2 Y. & C. Ch. 582. 
 
 10 Williams v. Williams, 1 Sim. (n. s.) 358. 
 
 " Webbv. Wools, 2 Sim. (n. s.) 2G7; Byne r. Blackburn, 26 Beav. 
 41. 
 
 134
 
 CHAP. IV.] PRECATORY WORDS. [§ 114. 
 
 circumstances than hers ; " ^ or, where all the testator's 
 estate was given to his wife, recommending her "to give the 
 same to his children, at such time and in such manner as 
 she should think best;"^ or, where a bequest of a house and 
 an annuity was made to a niece, for the sujjport of herself 
 and her neidiews and nieces whom she then had under her 
 care, "and of such other persons as she from time to time 
 might wish and request to be members of her family ;"3 or, 
 where property was given to a daughter, "to be hers forever, 
 to be disposed of as she may think proper among her chil- 
 dren and grandchildren, by will or otherwise;"* or a devise 
 to a wife of all a testator's property, recommending her "to 
 make some small allowance, at her convenience, to each of 
 his brothers and sisters : say, SIOOO to each ; " ^ or, a devise 
 "of the use, benefit, and profits, to a wife absolutely, having 
 full confidence that she will leave the surplus to be divided 
 at her decease justly among her children;"^ or, where the 
 testator expressed an "earnest hope " and "particular re- 
 quest" that "the donee would give the property to some one 
 bearing the family name. "^ In a case where A. gave prop- 
 erty to B. and directed that his daughter should reside with 
 and be maintained by B., and she resided of her own accord 
 in another place, it was held that there was no implied trust 
 for her if she resided in another place. ^ 
 
 § 114. It is an easy task to enumerate cases where trusts 
 have been implied and where they have not been implied ; 
 but it is difficult to reconcile all the decisions. The words 
 "will," "wish," "request," "hope," "desire," "trust," 
 "have confidence," "recommend," "not doubting," and 
 
 1 Reeves v. Baker, 18 Beav. 372. 
 
 2 Gilbert v. Chapin, 19 Conn. 351. 
 8 Harper i>. Phelps, 21 Conn. 257. 
 
 ■* Thompson v. ]\IcKisick, 3 Humph. 631. 
 6 Ellis V. Ellis, 15 Ala. 296. 
 
 " Pennock's Estate, 20 Pa. St. 268 ; reversing Coate's Appeal, 2 Barr, 
 129, and McKonkey's Appeal, 1 Harris, 253. 
 ' Hood r. Oglander, 34 Beav. 513. 
 8 Wilson V. Ball, L. R. 4 Ch. 581. 
 
 135
 
 114.] 
 
 IMPLIED TRUSTS, 
 
 [chap. IV. 
 
 other similar words found so often in wills, express a state of 
 mind in the testator, and they generally operate as a direct 
 gift, devise, or bequest ; but they are frequently so used that 
 it is doubtful whether they are absolute directions, or mere 
 suggestions to be acted on or not according to the discretion 
 of the donee. Every case must depend upon the construc- 
 tion of the particular will under consideration. ^ (a) The 
 
 1 Negroes v. Palmer, 18 Md. 165 ; Meggisoa v. Moore, 2 Ves. Jr. 
 633. 
 
 (a) In Hill v. Hill, [1897] 1 Q. B. 
 483, 486, Lord Esher, M. R., said: 
 " I have the strongest conviction 
 that, when the court is called upon 
 to place a construction upon words 
 spoken or written for the purpose 
 of adjudicating upon them, the same 
 rule applies in courts of equity as 
 in courts of law, namely, that the 
 words must have their ordinary sig- 
 nification, unless in the particular 
 case there is something which obliges 
 the court to give them a meaning 
 other than their ordinary meaning. 
 The words which we have to con- 
 sider in this case are words of re- 
 quest. Words of request in their 
 ordinary meaning convey a mere 
 request, and do not convey a legal 
 obligation of any kind either at 
 law or in equity. But in any par- 
 ticular case there may be circum- 
 stances which would oblige the 
 court to say that such words have 
 a meaning beyond their ordinary 
 meaning, and import a legal obli- 
 gation." Lord St. Leonards in his 
 Law of Property, p. 375, says : " It 
 is not an unwholesome rule, that if 
 a testator really means his recom- 
 mendation to be imperative, he 
 should express his intention in a 
 mandatory form; but this conclu- 
 sion was not arrived at without a 
 
 136 
 
 considerable struggle." The recent 
 authorities tend strongly to recog- 
 nize this rule. In Williams v. Wil- 
 liams, [1897] 2 Ch. 12, 18, Lindley, 
 L. J., said: "In each case the 
 whole will must be looked at ; and 
 unless it appears from the whole 
 will that an obligation was intended 
 to be imposed, no obligation will 
 be held to exist. . . . The term 
 ' precatory ' only has reference to 
 forms of expression. Not only in 
 wills but in daily life an expression 
 may be imperative in its real mean- 
 ing although couched in language 
 which is not imperative in form. 
 A request is often a polite form 
 of command. ... A condition of 
 this kind is enforceable in equity, 
 and need not amount to a common- 
 law condition involving a forfeit- 
 ure." In Colton V. Colton, 127 U. S. 
 300, 312, Mr. J. Matthews said: 
 " If there be a trust sufficiently 
 expressed and capable of enforce- 
 ment by a court of equity, it does 
 not disparage, much less defeat it, 
 to call it ' precatory.' The ques- 
 tion of its existence, after all, de- 
 pends upon the intention of the 
 testator as expressed by the words 
 he has used, according to their nat- 
 ural meaning, modified only by the 
 context and the situation and cir-
 
 CHAP. IV.] 
 
 PRECATORY WORDS. 
 
 [§ 114. 
 
 point really to be determined in all these cases is whether, 
 looking at the whole context of the will, the testator in- 
 tended to impose an obligation on his legatee to carry his 
 wishes into effect, or whether, having expressed his wishes, 
 he intended to leave it to the le^^atee to act on them or not 
 at his discretion. It is doubtful if there exist any formula 
 for bringing to a direct test the question, whether words of 
 "request," "hope," or "recommendation," are or are not to 
 
 cumstances of the testator when he 
 used them." 
 
 The statements of the author in 
 tlie text {supra, §§ 112, 113), apart 
 from the qualifications liere stated, 
 appear, in following the older au- 
 thorities, to go too far in holding 
 that particular words in a will cre- 
 ated a trust. While confidence, if 
 the context shows that a trust is 
 intended, may make a trust, yet if, 
 upon construing the whole will, the 
 confidence is merely that the lega- 
 tee will do what is riglit in dispos- 
 ing of the property, a binding trust 
 is not imposed. See Jn.re Adams 
 and Kensington Vestry, 27 Ch. D. 
 394, 410; In re Diggles, 39 Ch. D. 
 253; Booth v. Booth, [1894] 2 Ch. 
 282; In re Hamilton, [1895] 2 Ch. 
 370; Atkinson v. Atkinson, 62 L. T. 
 735 ; Hill v. Hill, 78 id. 103 ; Adams 
 V. Lopdell, 25 L. 11. Ir. 311; Dex- 
 ter V. Kvans, 63 Conn. 58 ; Bacon v. 
 Ransom, 139 Mass. 117; Durant 
 V. Smith, 159 Mass. 229; Aldrich 
 V. Aldrich, 172 Mass. 101 ; Foose 
 V. Whitmore, 82 N. Y. 405; Clay v. 
 Wood, 153 N. Y. 134; In re Gard- 
 ner, 140 N. Y. 122 ; Nunn v. O'Brien, 
 83 Md. 198; Pratt v. Trustees (Md.), 
 42 Atl. 51; Boyle v. Boyle, 152 
 Penn. St 108 ; Good v. Fichthorn, 
 144 id. 287 ; Eberhardt v. Perolin, 
 
 49 N. J. Eq. 570 ; Orth v. Orth, 145 
 Ind. 184 ; Stivers v. Gardner, 88 
 Iowa, 307 ; Bills v. Bills, 80 id. 269 ; 
 Foster v. Willson (X. H.), 38 Atl. 
 1003; Murphy v. Carlin, 113 Mo. 
 112 ; Sale v. Thornberry, 86 Ky. 
 266; Arnold v. Arnold, 41 S. C. 
 291; Hill V. Page (Tenn.), 36 S. 
 W. 735; Harrison v. Harrison (Va.), 
 44 Am. Dec. 3G.5, and note; 1 Ames 
 on Trusts (2d ed.) 93, 97, notes; 
 1 Jarman on Wills (Bigelow's 6th 
 ed.), *356. In jNIussoorie Bank p. 
 Raynor, 7 App. Cas. 321, uncer- 
 taintj' as to the nature and amount 
 of tlie property given over was held 
 a strong indication that words of 
 desire were not intended to be im- 
 perative. When an absolute own- 
 ership is clearly conferred, a trust 
 will not be inferred ; nor can a trust 
 be implied merely from the words 
 indicating the motives which in- 
 duced the gift. Giles v. An.'slow, 
 128 111. 187, 196; Randall v. Ran- 
 dall, 135 111. 398 ; Bain v. Buff, 76 
 \a.. 371 ; Seamonds r. Hodge, 36 
 W. Va. 304. An expressed wish 
 that a certain payment be made, 
 if "convenient," as it does not de- 
 pend upon choice or discretion, cre- 
 ates a trust. Phillips v. Phillips, 
 112 X. Y. 197. 
 
 137
 
 § 114.] IMPLIED TRUSTS. [CIIAP. IV. 
 
 be considered obligatory. ^ The most that can be done is to 
 
 1 Warner v. Bates, 98 Mass. 270 ; Williams v. Williams, 1 Sim. (n. s.) 
 358, by Sir Knight Bruce. In Wright v. Atkyns, 1 T. & R. 157, Lord 
 Eldon said that in order to determine whether the words create a trust or 
 not, it is matter of observation, — first, that the words should be impera- 
 tive ; secondly, that the subject must be certain ; and thirdly, that the 
 object must be as certain as the subject. See Wood v. Cox, 2 My. & Cr. 
 684 ; Pope v. Pope, 10 Sim. 1. In Knight v. Knight, -i Beav. 148, Lord 
 Langdale said, " It is not every wish or expectation which a testator may 
 express, nor every act which he may wish his successors to do, that can or 
 ought to be executed and enforced as a trust ; and in the infinite variety 
 of expressions employed, and of cases which arise, there is often the great- 
 est difficulty in determining whether the act desired or recommended is an 
 act which the testator intended to be executed as a trust. In the construc- 
 tion of wills it is the duty of the court to give effect to the intention of the 
 testator, whenever it can be ascertained." Then, after stating that in de- 
 creeing trusts wills have been made rather than executed, and that caution 
 is necessary, his lordship goes on to say, " that as a general rule it has 
 been laid down that when property is given absolutely to any person, and 
 the same person is by the giver, who has power to command, recom- 
 mended or entreated or wished to dispose of the property in favor of an- 
 other, the recommendation or entreaty or wish shall be held to create a 
 trust: first, if the words are so used that, upon the whole, they ought to 
 be construed as imperative; secondly, if the subject of the wish be certain ; 
 and, thirdly, if the objects or persons intended to have the benefit of the 
 recommendation or wish be also certain." Same case under the name of 
 Knight V. Boughton, 11 CI. & Fin. 518. 
 
 The learned editors to Hill on Trustees, p. 73 (4th Am. ed.), have ex- 
 amined the American and English cases, and state the following rules, 
 which seem to be fairly deducible from the adjudged cases : — 
 
 1. Precatory words in a will, equally with direct fiduciary expressions, 
 will create a trust; the wish of a testator, like the request of a sovereign, 
 is equivalent to a command. 
 
 2. Discretionary expressions which leave the application or non-appli- 
 cation of the subject of the devise to the objects contemplated by the tes- 
 tator entirely to the caprice of the devisee, will prevent a trust from 
 attaching; but a mere discretion in regard to ihe method of application 
 of the subject, or the selection of the object, will not be inconsistent with 
 a trust. 
 
 3. Precatory words will not be construed to confer an absolute gift on 
 the first taker, merely because of failure or uncertainty in the object or 
 subject of the devise. 
 
 4. But failure or uncertainty will be an element to guide the court in 
 construing words of doubtful siguificancy adversely to a trust. 
 
 138
 
 CHAP. IV.] PRECATORY WORDS. [§ 115. 
 
 state a few general rules that lead to the construction of 
 particular wills. 
 
 § 115. However strong the language of recommendation 
 or request may be, a trust will not be implied if the testator 
 declare that such is not his intention, as if he declares that 
 the gift shall be "unfettered or unlimited," or if he "recom- 
 mends but does not enjoin."^ And so a trust will not be 
 implied if such a construction of the jirecatory words would 
 render them repugnant to, or inconsistent with, other parts 
 of the same instrument.^ If construing a recommendation 
 or the expression of a wish into a trust would contradict in 
 terms the preceding bequest, a trust will not be implied.^ 
 As if the gift is absolute, and of all the testator's property, 
 and of both the legal and equitable interest in it, words of 
 recommendation will not cut it down into a trust; or, in the 
 words of Kindersley, V. C, "where the later words of a 
 sentence in a will go to cut down an absolute gift contained 
 in the first part of a sentence, and are inconsistent with 
 such gift, the court will, if it can, give effect to the abso- 
 lute gift."* The same rule was stated by Lord Cottenham 
 thus : " Though ' recommendation ' may in some cases amount 
 to a direction and create a trust, yet that being o. fiexihle 
 term, if such a construction of it be inconsistent w'ith any 
 positive provision in the w'ill, it is to be considered as a 
 recommendation and nothing more. "^ The flexible term 
 must give way to the inflexible, if the two cannot stand 
 together as they are expressed. 
 
 1 Meredith v. Heneage, 1 Sim. 543 ; 10 Price. 230 ; Hoy v. IMaster, 
 6 Sim. 568 ; Young v. Martin, 2 Y. & C. Ch. 582 ; Iluskisson v. Bridge, 
 4 De G. & Sra. 245; Warner v. Bates, 98 Mass. 277; "Whipple i-. Adam, 
 1 Met. 444 ; Eaton v. Witts, L. R. 4 Eq. 151 ; Barrett v. Marsh, 12G Mass. 213. 
 
 2 Brunsou v. Hunter, 2 Hill, Ch. 490; Knott v. Cottee, 2 Phill. 192. 
 
 8 Webb V. Wools, 2 Sim. (n. s.) 207; Bardswell v. Bardswcll, 9 Sim. 
 319. 
 
 *■ Webb ?). Wools, 2 Sim. (n. s.) 267; Van Duyiie v. Van Duyne, 1 
 McCarter, 397. 
 
 6 Knott V. Cottee, 2 Phill. 192; Second, etc. Church v. Desbrow, 52 
 Penn. St. 210. 
 
 139
 
 § 116.] IMPLIED TKUSTS. [CHAP. IV. 
 
 § 116. Again, a trust will not be implied from precatory 
 words where it would be impracticable for a court to deal 
 with and execute it; as if a testator should devise a house 
 to his wife, and express a wish that his sister should live 
 with her, for the sister takes no interest in the house, and a 
 court cannot decree two persons to live together. ^ So where 
 a testator devised a dwelling-house and an annuity to a 
 niece, for the support of herself and her nephews and nieces 
 then living with her, and of such other persons as she from 
 time to time might request to be members of her family. ^ 
 Nor will a trust be implied if there is uncertainty as to the 
 property to be subjected to the trust, ^ or as to the persons to 
 be benefited by the trust, ^ or as to the manner in which the 
 property is to be applied. Lord Alvanley stated the rule to 
 be "that a trust would be implied only where the testator 
 points out the objects, the property, and the way in which 
 it shall go. " ^ If the subjects and objects of the supposed 
 trust are left uncertain by a testator, the court will infer 
 that no obligation was intended to be imposed upon the 
 donee, but that the whole disposition was left to his dis- 
 
 1 Graves v. Graves, 13 Ir. Ch. 182 ; Hood v. Oglander, 34 Beav. 513. 
 
 2 Harper v. Phelps, 21 Conn. 257. 
 
 3 Lechmere v. Lavie, 2 M. & K. 197; Knight v. Knight, 3 Beav. 148; 
 Meredith v. Heneage, 1 Sim. 556; Buggins v. Yates, 9 Mod. 122; Sale 
 V. Moore, 1 Sim. 534; Anon. 8 Vin. 72; Tibbits v. Tibbits, 19 Ves. 655; 
 Wynne i'. Hawkins, 1 Bro. Ch. 179 ; Pierson v. Garnet, 2 id. 45, 230 ; 
 Sprange v. Barnard, id. 585; Bland i;. Bland, 2 Cox, 349; Le Maitre v. 
 Bannister, and Eales v. England, Pr. Ch. 200 ; Pushman v. Filliter, 3 
 Ves. 7; Att. Gen. v. Hall, Fitzg. 314; Wilson r. Major, 11 Ves. 205; 
 Eade v, Eade, 5 Madd. 118 ; Curtis v. Rippon, id. 434 ; Russell v. Jack- 
 son, 10 Hare, 218; Knight r. Boughton, 11 CI. & Fin. 513; Flint v. 
 Hughes, 6 Beav. 342; Lines v. Darden, 5 Fla. 51. 
 
 4 Harland v. Trigg, 1 Bro. Ch. 142; Wynne v. Hawkins, id. 179; Tib- 
 bits V. Tibbits, 19 Ves. 655 ; Richardson v. Chapman, 1 Burns, Ecc. L. 
 245 ; Pierson v. Garnet, 2 Bro. Ch. 4.5, 230 ; Knight c. Knight, 3 Beav. 
 148 ; Sale v. Moore, 1 .Sim. 534 ; Caiy v. Gary, 2 Sch. & Lef. 1S9 ; Mere- 
 dith v. Heneage, 1 Sim. 542; Ex parte Payne, 2 Y. & C. Ch. 636; Knight 
 V. Boughton, 11 CI. & Fin. 513 ; Lines v. Darden, 5 Fla. 51. 
 
 6 Malim v. Keighley, 2 Ves. Jr. 335; Knight v. Boughton, 11 CI. & 
 Fin. 548; Warner v. Bates, 98 Mass. 277; Whipple v. Adams, 1 Met. 
 444. 
 
 140
 
 CHAP. IV.] MAINTENANCE. [§ 117. 
 
 crctioii.^ So if a mere power to appoint is given to the first 
 taker, to bo exercised or not at his discretion, no trust will 
 be implied. 2 And no trust will be implied, if, taking the 
 whole instrument and all the circumstances together, it is 
 more probable than otherwise that the testator intended to 
 communicate a discretion and not an oljligation.^ 
 
 § 117. There is another variety of cases, where trusts are 
 sometimes implied from the words used, though an express 
 trust is not declared, as where property is given to a parent 
 or other person standing in the relation of parent, and some 
 directions or expressions are used in regard to the mainte- 
 nance of his family or children. The question to be decided 
 in this class of cases is, as in the others, did the settlor 
 intend to create a trust and impose an obligation, or did he 
 merely state incidentally the motive which led to an aljso- 
 lute gift ? * In the following cases a trust was clearly implied 
 by the court; where property was given, that "he may dis- 
 pose thereof for the benefit of himself and children,"^ or, 
 "for his own use and benefit, and the maintenance and 
 education of his children,"^ "for the maintenance of himself 
 and family,"'^ "for the purpose of raising, clothing, and 
 educating" the children of the legatee,^ "at the disposal of 
 the legatee for herself and her children,"^ or "all overplus 
 
 1 INIorice v. Bishop of Durham, 10 Ves. 536. 
 
 2 Brook V. Brook, 3 Sm. & Gif. 280; Paul v. Compton, 8 Ves. 380; 
 Howorth V. Dewell, 29 Beav. 18; Lines v. Darden, 5 Fla. 51. 
 
 8 Bull V. Hardy, 1 Ves. Jr. 270; Knott v. Cottee, 2 Phill. 192 ; Knight 
 V. Knight, 3 Beav. 174; 11 CI. & Fin. 513; Meggison v. Moore, 2 Ves. Jr. 
 630 ; Hill v. Bishop, &c., 1 Atk. 618 ; Paul v. Corapton, 8 Ves. 380 ; Lefroy 
 V. Flood, 4 Ir. Ch. 1 ; Shepherd v. Nottidge, 2 Johns. & Ilera. 766. 
 
 * Paisley's App. 70 Penn. St. 158. 
 
 ^ Raikes v. Ward, 1 Hare, 445; Whiting v. Whiting, 4 Gray, 240. 
 
 « Longman v. Elcum, 2 Y. & C. Ch. 369; Carr v. Living, 28 Beav. 644; 
 Berry v. Briant, 2 Dr. & Sm. 1 ; Bird v. Maybury, 33 Beav. 351 ; Andrews 
 V. Bank of Cape Ann, 3 Allen, 313. 
 
 ^ In re Ptobertson's Trust, 6 W. R. 405 ; Whelan r. Reilly, 3 W. Va. 
 597; Smith /•. AVildman, 37 Conn. 387. 
 
 8 Rittgers r. Rittgers, 56 Iowa, 218. 
 
 « Crockett v. Crockett, 1 Hare, 451 ; 2 Phill. 461 ; Bibby v. Thompson, 
 32 Beav. 646. 
 
 141
 
 § 117.] IMPLIED TRUSTS. [CHAP. IV. 
 
 towards her support and her family, " ^ or to " A. for the 
 education and advancing in life of her children. "^ In 
 Byne v. Blackburn, it was held that the fact that the property 
 was given to a trustee instead of to the parent was sufficient 
 to show that no sub-trust was intended;" but this case is in 
 conflict with other cases;* and in Chase v. Chase, where 
 property was given to trustees " to pay the income yearly to 
 a son for the support of himself and family and the educa- 
 tion of his children," it was held that the income was taken 
 in trust by the son as sub-trustee, and that the wife and 
 children could in equity enforce its appropriation in part 
 for their support.^ Where a testator gave his wife the entire 
 
 ^ Woods V. Woods, 1 M. & Cr. 401. 
 
 2 Gilbert v. Bennett, 10 Sim. 371. 
 
 8 Byne r. Blackburn, 26 Beav. 41. 
 
 4 Gilbert v. Bennett, 10 Sim. 371 ; Longman v. Elcum, 2 Y. & C. Ch. 
 363; Carr i'. Living, 28 Beav. 644. 
 
 6 Cole V. Littlefield, 35 Maine, 485; Loring v. Loring, 100 Mass. 340; 
 Wilson V. Bell, L. R. 4 Ch. 581 ; Whiting v. Whiting, 4 Gray, 240; Chase 
 V. Chase, 2 Allen, 101. In this case Chief-Justice Bigelow said: "The 
 intent of the testator to give the benefit of the income of the trust fund 
 created by his will to the wife and children of his son Philip, as well as 
 to his son, is clear and unequivocal. It was intended for their joint sup- 
 port, and for the education of the children. The only question arising 
 on the construction of the will is, whether the income of the trust fund, 
 when received by the son, is held absolutely by bim to be disposed of at 
 his discretion, or whether he takes it in trust so that the wife and chil- 
 dren can seek to enforce its due appropriation, in part for their benefit, 
 in a court of equity. We cannot doubt that the latter is the true con- 
 struction ; otherwise it would be in the power of the son to defeat the pur- 
 pose of the testator, by depriving his family of the support and education 
 which was expressly provided for by the will. The adjudicated cases 
 recognize the rule that where income arising from property is left to a 
 person for the maintenance of children, he will be entitled to receive it 
 for that purpose only so long as he continues properly to maintain them. 
 It can make no difference in the application of the principle, that the per- 
 son who is to receive the income also takes a beneficial interest in it for 
 his own support. He is not thereby authorized to appropriate the whole 
 of it to his own use, and deprive the other beneficiaries of the share to 
 which they are entitled. Hadow v. Hadow, 9 Sim. 438 ; Jubber r. Jubber, 
 id. 503; Longmore v. Elcum, 2 Y. & C Ch. 363; Leach v. Leach, 13 
 Sim. 804 ; Hart v. Tribe, 19 Beav. 149 ; Raikes v. Ward, 1 Hare, 445 ; 
 142
 
 CUAl'. IV.] MAINTENANCE. [§ 117. 
 
 profit of his estate for life, "intrusting to her the education 
 and maintenance of his children," and also providing f(ji- the 
 education and maintenance of the children "out of the 
 profits " of the estate, it was held that the widow was charged 
 with the trust of educating and supporting the children;^ 
 and where a legacy was given to a wife to be applied to the 
 maintenance of certain jjcrsons in such projjortions and at 
 such times as she should think proper, it was held to be an 
 imperative trust.^ Where a testator gave to his wife all 
 his personal property for her benefit and support and the 
 benefit of his son, it was held to be a trust in the widow, 
 the income of one-half for her own benefit and of the other 
 half for the support of the son.^ A trust for support is not 
 
 Crockett v. Crockett, 2 Phill. 553." See Babbitt v. Babbitt, 26 N. J. 
 Eq. 44. 
 
 ^ Lucas V. Lockhart, 10 Sim. & Mar. 468. See also Hunter v. Stem- 
 bridge, 12 Ga. 192 ; Withers v. Yeadon, 1 Rich. Eq. 324. 
 
 2 Hawley v. James, 5 Paige, 318. 
 
 8 Loriiig V. Loring, 100 Mass. 340; Jubber v. Jubber, 9 Sim. 503. 
 When a testator has stated the motive which leads to the gift, the inquiry 
 arises, is the motive or purpose of the gift so stated that the donee is 
 under an obligation to apply the gift, or any part of it, to the benefit of 
 another person? There are three classes of cases: (1) When a complete 
 and obligatory trust is created in the first donee; as a gift to A. "to dis- 
 pose of among her children," or for bringing up her children, gives no 
 interest to A., but creates a complete trust. Blakeney v. Blakeney, 6 
 Sim. 52; Pilcher /•. Randall, 9 Week. R. 251 ; Taylor v. Bacon, 8 Sim. 100; 
 Chambers v. Atkins, 1 Sim. & St. 3->2; Fowler c. Hunter, 3 Y. & Jer. 
 506; In re Comae's Trust, 12 Jur. 470; Barnes v. Grant, 26 L. J. Cb. 92; 
 Jubber v. Jubber, 9 Sim. 503; Wetherell l'. Wilson, 1 Keen, 80; Wilson v. 
 IMaddison, 2 Y. & C. Ch. 372 ; Re Harris, 7 Exch. 344 ; Whiting r. Whit- 
 ing, 4 Gray, 420; Chase v. Chase, 2 Allen, 101 ; Cole v. Littlefield, 35 
 IVIaine, 439 ; Wright v. ISIiller, 8 N. Y. 9. (2) There is a large class of 
 cases wh"re the first donee has a discretion to apply a part or the whole of 
 the gift to a third person. This discretion, if exercised in good faith, will 
 not be interfered with by the court, and the property unapplied by the 
 donee will belong beneficially to him. Thus in Hornby v. Gilbert, Jac. 
 351, where a gift was made to A., to be laid out and expended by her at 
 her discretion, for or towards the education of her son, and that she 
 should not be liable to account to her son or any other person, it was held 
 that the property belonged to her beneficially, subject to a trust to apply 
 a part to the education of the son during his minority. And so where 
 
 143
 
 § 117.] IMPLIED TRUSTS. [CHAP. IV. 
 
 void for uncertainty, as the amount required to furnish 
 maintenance suitable to the station of the cestui can be 
 ascertained with reasonable certainty.^ 
 
 income is given for life, to be applied to the education and maintenance 
 of children in the discretion of the donee, the income must be paid to the 
 person named, and the part unexpended belongs to such person benefi- 
 cially. Gilbert r. Bennett, 10 Sim. 371; Hadow v. Hadow, 9 Sim. 438; 
 Leach v. Leach, 13 Sim. 304 ; Brown v. Paul, 1 Sim. (n. s.) 92; Bowden 
 V. Laing, 14 Sim. 113; Longmore v. Elcum, 2 Y. & C. Ch. 363. And if 
 the interest or income of legacies to the children is given to a parent, to 
 be applied to the maintenance and education of the children, the parent 
 will take the surplus beneficially if he performs his duty, unless a contrary 
 intention is expressed: and providing for other trustees in case of the 
 parent's death does not mdicate a contrary intention. Brown v. Paul, 1 
 Sim. (n. s.) 103. Sometimes the gifts to a parent are so expressed that 
 the parent takes the property in trust, subject to a large discretion ; and 
 sometimes the parent takes the property for life, subject to a power of 
 appointment for the children. The latter construction is the more favored 
 by the courts. See Crockett i'. Crockett, 2 Phill. 553; Gully v. Cregoe, 24 
 Beav. 185; Hart v. Tribe, 18 Beav. 215; Ware v. Mallard, 21 L. J. Ch. 
 355, 16 Jur. 492. In Raikes v. Ward, 1 Hare, 445, a gift was made to a 
 wife " to the intent she may dispose of the same for the benefit of herself 
 and our children as she may deem most advantageous," and the court 
 determined that the children had no absolute interest, but that their inter- 
 ests were subject to her honest discretion. Connolly v. Farrell, 8 Beav. 
 347; Woods c. Woods, 1 My. & Cr. 401; Costababie v. Costababie, 6 
 Hare, 410; Cowman v. Harrison, 10 Hare, 234; Smith v. Smith, 2 Jur. 
 (n. s.) 967; Cooper v. Thornton, 3 Bro. Ch. 96; Robinson v. Tickell, 8 
 Ves. 142; Wood v. Richardson, 4 Beav. 174; Pratt v. Church, id. 177. 
 (.3j The third class of cases contains those in which it is held that the 
 primary donee is absolutely entitled to the whole interest given, with- 
 out any rights in third persons, as in Brown v. Casamajor, 4 Ves. 498, 
 where a legacy was given to a father "the better to enable him to 
 provide for his children." These and similar words merely express 
 the motive of the gift, but import or imply no obligation or discretion 
 which courts can enforce or control. Hammond v. Neame, 1 Swanst. 35 ; 
 Benson v. Whittam, 5 Sim. 22 ; Thorp v. Owen, 2 Hare, 607 ; Andrews 
 V. Partington, 3 Bro. Ch. 60. See also Biddies v. Biddies, 16 Sim. 1 ; 
 Berkley v. Swinbourne, 6 Sim. 613 ; Oakes v. Strachy, 13 Sim. 414 ; Leigh 
 V. Leigh, 12 Jur. 907; Jones v. Greatwood, 16 Beav. 528; Hart v. Tribe, 
 18 Beav. 215 ; W^heeler v. Smith, 1 Gift. 300. It may be said that 
 
 1 Johnson v. Billups, 23 W. Va. 685, 
 
 144
 
 CHAP. IV.] MAINTENANCE. [§ 118. 
 
 § 118. In cases where a trust for the maijitenance of 
 children is implied, the person bound by the trust is 
 regarded in the same light as the guardian of a lunatic or of 
 a minor :^ he is entitled to receive the fund, and can give a 
 valid receipt for it;^ and, so long as he discharges the trust 
 imposed upon him, he is entitled to the surplus for his own 
 benefit, nor is he ol)liged to account for the past application 
 of the fund. 3 And the future application is very much 
 according to his discretion, provided he educates and sup- 
 ports the children reasonably, according to their jjosition in 
 the world and the intention of the testator.* The court, in 
 cases where a question is raised, will order payment to be 
 made to him, with liberty to the wife and children to apply 
 for further orders;^ if he becomes unfit to educate the chil- 
 dren, the court can apportion the fund, and prevent him 
 from receiving the portion necessary for the children and 
 family;'' and if he assigns his interest in the fund, the court 
 can apportion it, and set apart what is needed for the sup- 
 port and education of the children, and give the remainder 
 to his assignee.^ Of course, if there arc no children, or if 
 they die, the person bound by the trust takes the whole 
 benefit of the fund.^ But if the devisee die before the chil- 
 
 latterly courts are not so astute to discover and enforce trusts from 
 precatory words, and arc more inclined to find in the words the mere 
 statement of a motive, or the vesting of a discretion in the donee. 
 
 1 Jodrell r. Jodrell, 14 Beav. 411. 
 
 2 Woods r. Woods, 1 M. & Cr. 409; Raikes v. Ward, 1 Hare, 449; 
 Cooper V. Thornton, 3 Bro. Ch. 186; Robinson v. Tickell, 8 Ves. 142 ; 
 Crockett v. Crockett, 1 Hare, 451 ; 2 Phill. 553 ; Webb v. Wools, 2 Sim. 
 (n. a.) 272. 
 
 8 Leach v. Leach, 13 Sim. 304 ; Brown v. Paul, 1 Sim. (n. s.) 92; Carr 
 V. Living, 28 Beav. 644; Mora r. Ilora, 33 Beav. 88; Smith r. Smith, 11 
 Allen, 423 ; Berkley i-. Swinbourne, 6 Sim. 613; Iladow v. Hadow, 9 Sim. 
 438. 
 
 * Raikes r. Ward, 1 Hare, 450. 
 
 ^ Iladow r. Hadow, 9 Sim. 438 ; Crockett v. Crockett, 1 Hare, 451. 
 
 « Chase v. Chase, 2 Allen, 101; Castle v. Castle, 1 De G. & Jon. 352. 
 
 ■^ Chase r. Chase, 2 Allen. 101 ; Carr v. Living, 2 Beav. 044. 
 
 8 Hammond v. Neame, 1 Swanst. 35 ; Cape r. Cape, 2 Y. & C. Ex. 543; 
 Bushnell y. Parsons, Pr. Ch. 219; Bowditch v. Andrew, 8 Allen, 339; 
 Smith r. Smith, 11 Allen, 423. 
 
 VOL. I. — 10 145
 
 § 118,] IMPLIED TRUSTS. [CHAP, IV. 
 
 dren, the trust remains for them.^ The trust also ceases as 
 to children who hccome forisfamiliated, or cease to be mem- 
 bers of the trustee's family, and, by marriage or otherwise, 
 become members of another home or establishment; for it 
 would not generally be implied that a testator intended ^ an 
 income for the support and education of his family to be 
 divided up into as many families as he left children. ^ 
 Whether a child's right to maintenance under such a will 
 ceases by the fact of his attaining twenty-one years of age is 
 in many cases an open question.^ On the one side it may 
 be said that the trust ought not to continue after the child is 
 of age, and is educated and prepared to acquire a livelihood 
 for himself.^ On the other hand, if the child is willing to 
 remain at home, and there is no reasonable objection to his 
 so remaining, or if it is a female with no other protection 
 and means of support, it would seem that the trust ought 
 not to cease on the mere ground that the child has attained 
 twenty-one.^ The great majority of cases will, of course, 
 depend upon the particular words used in the particular 
 will, and they will be so construed by the court as to carry 
 out the intentions of the testator.'^ If a trust is to a widow 
 for life for the support of herself and the support and 
 education of her children, and the property is to go to them 
 absolutely upon her death, one of them, on coming of age, 
 cannot call for his proportion, even with the concurrence of 
 
 1 Andrews v. Cape Ann Bank, 3 Allen, 313. 
 
 2 Bowdoiu V. Laing, 14 Sim. 113; Carr v. Living, 28 Beav. 644; 33 
 Beav. 464; Thorp v. Owen, 2 Hare, 612; Longmore v. Elcum, 2 Y. & C. 
 Ch. 370; Manning v. Wopp, 2 Dev. & Bat. Ch. 11 ; Smith v. Wildman, 
 37 Conn. 387 ; Gardner v. Barker, 2 Eq. R. 888, overruling Soames v. 
 Martin, 10 Sim. 287; Bayne v. Crowther, 20 Beav. 400; Brocklebank v. 
 Johnson. 29 Beav. 211; Badham v. Mee, 1 R. & M. 631. 
 
 3 Ibid. ; Baker v. Reel, 4 Dana, 158; Conolly v. Farrell, 8 Beav. 350; 
 citing Camden v. Benson, Crockett v. Crockett, 1 Hare, 457 ; 5 Hare, .326. 
 
 4 Ibid. 
 
 5 McDonnell v. Black, Riley, Ch. 152. 
 
 6 Ibid. ; Cloud v. Martin, 2 Dev. & Bat. Ch. 274 ; Carr v. Living, 33 
 Beav. 464. 
 
 7 Gardner v. Barker, 18 Jur. 508 ; Bowditch v. Andrew, 8 Allen, 339 ; 
 Sargent v. Bourne, 6 Met. 32. 
 
 146
 
 CHAP. IV.] MAINTENANCE. [§ 119. 
 
 the widow, if such transfer would so diminish the fund as 
 to endanger the rights of the other children to support and 
 education during the life of the widow. In such case the 
 court has ordered a part of such child's share to be paid 
 over on his undertaking to account for the income if needed, 
 and on the footing that the residue should be retained for 
 security, that the income should l)e i)aid over if required.' 
 The children have such an interest in the fund given for 
 their maintenance that it cannot be reached by a creditor's 
 bill or trustee process against the parent or other person 
 charged with the obligation of maintaining the children or 
 family; that is, if the fund is given to a person for a par- 
 ticular purpose, it cannot be diverted from that purpose by 
 creditors of the donee. ^ 
 
 § 119. But no trust is implied where the words simply 
 state the motive leading to the gift, as where the gift is to a 
 person "to enable him to maintain the children, "^ or an 
 absolute gift is made, and the motive stated "that he may 
 support himself and children,"* or a gift is made absolutely 
 for her own use and benefit, "having full confidence in her 
 sufficient and judicious provision for the children."^ When 
 a testator gave to his wife " the use, benefit, and profits of 
 his real estate for life, and all his personal estate, abso- 
 lutely, having full confidence that she will leave the surplus 
 to be divided justly among my children," it was held that 
 the widow took the personal estate absolutely subject to no 
 trust, and that the word "surplus" meant what was left 
 consumed or undisposed of by her.^ And it may be added 
 
 1 Berry v. Briant, 2 Dr. & Sm. 1. 
 
 2 Bramhall v. Ferris, 14 N. Y. U ; White v. White, 30 Vt. 342 ; Rife 
 V. Geyer, 59 Pa. St. 393 ; Wells v. McCall, 64 Penn. St. 207 ; Clute v. Bool, 
 8 Paige, 83; Doswell v. Anderson, 1 P. & II. (Va.) 185. 
 
 8 Benson v. Whittam, 5 Sim. 22; Leach v. Leach, 13 Sim. 304; Burt 
 r. Ilenon, 66 Penn. St. 400 ; Rhettw. Mason, 18 Grat. 541 ; Burke i-. Val- 
 entine, 52 Barb. 412. 
 
 * Thorp V. Owen, 2 Hare, 607. 
 
 5 Fox V. Fox, 27 Beav. 301 ; Sears v. Cunningham, 122 Ma.ss. 538 ; 
 Barrett v. INIarsh, 126 Mass. 213. 
 
 ^ Pennock's Estate, 20 Peun. St. 268, overruling the opinions in 
 
 1-47
 
 § 119.] IMPLIED TRUSTS. [CHAP. IV. 
 
 that the mere expression of a purpose for which a gift is 
 made docs not render the purpose obligatory. Even if the 
 purpose of the gift was to benefit the donee solely, he can 
 claim the gift without applying it to the purpose named, 
 whether the expression be obligatory in form or not. Thus 
 if a gift be made to a person to purchase a ring,i or an 
 annuity,^ or a house,^ or to set him up in business,* or for 
 his maintenance and education, ^ or to bind him apprentice,^ 
 or towards the printing of a book, the profits of which to be 
 for his benefit,^ the legatee may claim the money without 
 applying, or binding himself to apply, it to the purpose 
 specified, even although there is an express declaration that 
 he shall not otherwise receive the money. ^ These cases go 
 upon the principle that a court of equity will not compel a 
 legatee or other party to do what he may undo the next 
 moment; for as soon as such party has received his ring, 
 or house, or annuity, he may sell it or give up his busi- 
 ness.^ And where money is given to trustees, and a dis- 
 cretion is given to them how much and in what manner 
 they shall apply it, the cestui que trust has no right to more 
 than the trustees see fit to apply. ^'^ 
 
 Coate's Appeal, 2 Barr, 129, and in McKonkey's Appeal, 1 Harris, 253; 
 cases upon the same will under other names. And see Paisley's App. 
 70 Penn. St. 158, where the cases are discussed; Willard's App., 15 P. F. 
 Smith, 265. 
 
 1 Apreece v. Apreece, 1 Ves. & B. 364. 
 
 2 Dawsou V. Hearne, 1 R. & My. 606; Ford v. Battey, 17 Beav. 303; 
 Be Brown's Will, 27 Beav. 324; Yates v. Compton, 2 P. Wms. 38. 
 
 8 Knox V. Hotham, 15 Sim. 82. ^ Gough v. Bult, 16 Sim. 45. 
 
 5 Webb V. Kelley, 9 Sim. 472 ; Young Husband r. Gisborne, 1 Gall. 
 400 ; Presant v. Goodwin, 1 Sm. & Tr. 544; Boyne v. Crowther, 20 Beav. 
 400 ; Twopenny v. Peyton, 10 Sim. 487. 
 
 6 Barlow y. Grant, 1 Vern. 255; Nevill v. Nevill, 2 Vern. 2-31 ; Wool- 
 dredge V. Stone, 4 L. J. (o. s.) Ch. 56; Burton v. Cook, 5 Ves. 401 ; Luke 
 V. Kelmorey, T. & R. 207 ; Att.-Gen. v. Haberdashers' Co., 1 My. & Keen, 
 420; Lewes v. Lewes, 16 Sim. 266 ; Xoel v. Jones, 16 Sim. 309 ; Lockhart 
 V. Hardy, 9 Beav. 379 ; Lonsdale v. Berchtoldt, 3 K. & J. 185. 
 
 7 Re Skinner's Trusts, 1 J. & H. 102. 
 
 8 Stokes V. Cheek, 29 L. J. Ch. 922. 
 
 9 1 Jarm. on Wills, 368 C3d Lond. ed.). 
 
 i*" In re Sanderson's Trusts, 3 Kay & J, 497; Beevor v. Partridge, 11 
 148
 
 CHAR IV.] AGREEMENTS. [§ 121. 
 
 § 120. If a trust is im[)lied, it is governed in some respects 
 by rules entirely different ironi the rules that govern a direct 
 trust. Generally in a direct trust the trustee takes no bene- 
 ficial interest in himself, but in an implied trust the trustee 
 may take the whole beneficial interest for life, with a right 
 even to expend some part of the principal fund. Thus, where 
 an estate was devised to A. and her heirs in the fullest confi- 
 dence that at her decease she would devise the property to 
 the heirs of the testator, Lord Eldon held that A. hud all the 
 rights in the estate of a tenant for life, and so it was also held 
 in the House of Lords.^ But where a testator devised an 
 estate to his wife and her heirs, under the firm conviction 
 that she would dispose of and manage the same for the bene- 
 fit of her children, it was held that the widow was not entitled 
 to a beneficial interest as tenant for life.^ 
 
 § 121. Trusts sometimes arise by implication from the pro- 
 visions of a will, in order to carry out the testator's intention. 
 As where a testator leaves property to A. wnth the request 
 that he shall leave it to B., a trust in favor of B. is created, 
 which is not affected by the death of A. before the testator.^ 
 A direction to continue the testator's business creates a trust.* 
 So where a testator gave his wife an annuity of $1000 a year, 
 to be paid her by a trustee named, to enable her to live com- 
 fortably and to support and educate her children, and if in 
 any year said sum were insufticient, the trustee was to pay her 
 an additional sum not exceeding $1000. The testator gave 
 a few legacies, and then gave the remainder of his estate to 
 his daughters, and gave nothing to the trustee in words, bat 
 he authorized the trustee to sell certain of his real estate, and 
 also to sell the personal property not specifically devised. 
 The ])orsonal property was only sufficient to pay the debts of 
 
 Sim. 2J0; Rudlaud v. Crozier, 2 De G. & J. 143; Cowper v. Mautell, 22 
 Beav. '2:n. 
 
 1 Wrisjht V. Atkyns, T. & R. 157; Lawless ». Shaw, Lloyd & Goold, 
 SugdtMi, 151; Shovelton v. Shovelton, 32 Beav. 143. 
 
 2 Barnes v. Grant, 2 Jur. (n. s.) 1127. 
 
 8 Eddy V. Ilartshore, 34 N. J. Eq. 409. 
 * Ferry v. Laible, 31 N. J. Eq. 566. 
 
 149
 
 § 121.] IMPLIED TKUSTS. [CHAP. IV. 
 
 the testator, and the trustee had no funds from which to pay 
 the annuity to the wife. It was held by the court that the 
 trustee took the real estate in trust by implication, that the 
 daughters took the remainder after the trusts were executed, 
 and that the widow could enforce the payment of the annuity 
 by bill in equity against the trustee.^ So if a testator direct 
 his real estate to be sold, or if he charge it with the payment 
 of debts or legacies, it may descend to an heir, or pass to a 
 devisee, but the court will consider the direction as an im- 
 plied declaration of trust, and enforce its execution in the 
 hands of those to whom it has come.^ So a condition an- 
 nexed to a devise which, being broken, might work a for- 
 feiture of the estate, has in equity been construed into an 
 implied trust, and enforced as such ; as where a house was 
 devised to A. for life, " he keeping the same in repair," or 
 where an estate is given to one in fee, " he paying the tes- 
 tator's debts within a year." ^ Sometimes it is very difficult 
 to determine whether or no a trust ought to arise by implica- 
 tion, as where there is an absolute devise to C. and conjoined 
 therewith expressions indicating a trust in £.■* Where a tes- 
 tator gave his wife a life estate and then left it to her discre- 
 tion to give such aid to his relations as she might deem proper 
 and just of her own will, it was held that there was no suffi- 
 cient expression of desire to create a trust,^ So where a tes- 
 tator gave his estate to his daughter, saying, " I enjoin upon 
 
 1 Walker v. Whiting, 23 Pick. 313 ; Braman v. Stiles, 2 Pick. 460 ; 
 Fay V. Taft, 12 Cush. 448; Watson v. Mayrant, 1 Rich. Ch. 449; Baker v. 
 Reel, 4 Dana, 158. 
 
 2 Pitt V. Pelham, 2 Freem. 134 ; 1 Ch. R. 283 ; Locton v. Locton, 2 
 Freem. 136; Auby u. Doyl, 1 Ch. Cas. 180; Tennant v. Brown, id. 180; 
 Garfoot v. Garfoot, id. 35 ; 2 Freem. 176 ; Gwilliams v. Rowell, Hard. 204 ; 
 Blatch V. Wilder, 1 Atk. 420; Carvill v. Carvill, 2 Ch. R. 301; Cook v. 
 Fountain, 3 Swanst. 529; Bennett v. Davis, 2 P. Wms. 318; Wigg v. 
 Wigg, 1 Atk. 382 ; Hoxie v. Hoxie, 7 Paige, 187; Withers v. Yeadon, 1 
 Rich. Ch. 324 ; IMcTntire Poor School v. Zan. Canal Co., 9 Ham. 203. 
 
 8 Wright V. Wilkin, 2 B. & Sm. 232; Stanley v. Colt, 5 Wall. 119; 
 Sohier v. Trinity Church, 109 ISIass. 1 ; Re Skingley, 3 M. & Gor. 221; 
 Gregg V. Coates, 23 Beav. 33. And see Kingham v. Lee, 15 Sim. 396. 
 
 4 Slater v. Hurlebut, 146 Mass. 308, 314. 
 
 6 Corby v. Corby, 85 Mo. 371. 
 150
 
 CHAP. IV.] AGREEMENTS. [§ 122. 
 
 her to make such provision for my grandchild ... in such 
 manner and at such times and in sucli amounts as she may 
 judge to he expedient and conducive to the welfare of said 
 grandchild, and her own sense of justice and Christian duty 
 shall dictate," it was held that there was no trust.^ A gift 
 "relying" on the donee to do so and so creates no trust.^ 
 Giving the wife the use or proceeds of property after expenses 
 are paid, and providing for sale and distribution after her 
 death, creates a trust, and gives the wife merely a life right 
 to the rents and profits.'^ An executor is always a trustee of 
 the personalty, and the jurisdiction of equity courts over trusts 
 gives them a right to construe wills whenever necessary to 
 guide a trustee* Wherever the duties imposed on the execu- 
 tors are active, and render possession of the estate reasonably 
 necessary, they will be deemed trustees.^ But merely calling 
 an executor "trustee" in a will which creates no trust estate 
 or duties will not make him a testamentary trustee.^ 
 
 § 122. Again, courts of equity will imply a trust from the 
 contracts of parties, although there are no words of trust in the 
 instrument ; ' as if a person for a valuable consideration agrees 
 to settle a particular estate upon another,^ or if he agrees to 
 sell an estate to another,^ the settlor or vendor becomes a trus- 
 
 ^ Lawrence v. Cooke, 104 N. Y. 632 ; overruling same case in 32 Ilun, 
 126. 
 
 2 Willets V. Willets, 35 Hun, 401. 
 
 8 Hathaway v. Hathaway, 37 Hun, 265. 
 
 * Wager v. Wager, 89 N. Y. 101. 
 
 6 Ward V. Ward, 105 N. Y. 68. 
 
 « In re Hawley, 104 N. Y. 250. 
 
 ' Taylor v. Pownal, 10 Leigh, 183. 
 
 8 Finch V. Wiuchelsea, 1 P. Wms. 277; Freemoult v. Dedire, id. 429; 
 Kennedy v. Daley, 1 Sch. & Le. 355; Legard v. Hodges, 1 Ves. Jr. 477 ; 
 3 Bro. Ch. 531; 4 Bro. Ch. 421; Ravenshaw r. HoUier, 7 Sim. 3; Welles- 
 ley V. Wellosley, 4 M. & C. 561; Mornington v. Keane, 2 De G. & J. 293 ; 
 Lyster v. Burroughs, 1 Dr. & W. 149; Stock v. Uoyse, 12 Ir. Ch. 246; 
 Lewis V. IMadocks, 8 Ves. 150; 17 id. 48; llowan v. Chute, 13 Ir. Ch. 
 169; Re McKenna, 13 Ir. Ch. 239. 
 
 9 Ackland v. Gaisford, 3 Madd. 32 ; Wilson v. Clapham, 1 J. & W. 38 ; 
 Ferguson v. Tadman, 1 Sim, 530 ; Foster v. Deacon, 3 Madd. 394 ; Paine 
 
 151
 
 § 122.] 
 
 IMPLIED TRUSTS. 
 
 [chap. IV. 
 
 tec of the fee for the purposes of the settlement, or for the pur- 
 chaser. Ante-nuptial contracts in regulation of the interest 
 that each shall have in the property of the other then owned or 
 suhsequently to be acquired are favored, and will be enforced by 
 imposing a trust on the property.^ (a) A note given by one to 
 
 V. Meller, G Ves. 349 ; Harford v. Purrier, 1 Madd. 539 ; Stent v. Bailis, 2 
 P. Wms. 220; Minchin v. Nance, 4 Beav. 332; Robertson v. Skelton, 12 
 Beav. 2G0; Paramore v. Greenslade, 1 Sm. & Gif. 541; Revell v. Hussey, 
 2 B. & B. 287; Spurrier v. Hancock, 4 Ves. 6G7 ; White v. Nutts, 1 P. 
 Wms. 61 ; Wall v. Bright, 1 J. & W. 494 ; Tasker v. Small, 3 M. & Cr. 
 70; Pingree v. Coffin, 12 Gray, 288; Reed v. Lukens, 44 Penn. St. 200 ; 
 Canning v. Kensworthy, 21 Ark. 9 ; Currie v. White, 45 N. Y. 822 ; Wim- 
 bish V. Montgomery Mut. Bldg. & Loan Assoc. 69 Ala. 578 ; Ricker v. 
 Moore, 77 Maine, 292 ; Goodwin v. Rice, 26 Minn, 20 ; Randall v. Cou- 
 stans, 33 Minn. 329. 
 
 1 Johnston v. Spicer, 107 N. Y. 185. 
 
 (a) As to fraud upon marital 
 rights, see Ilinkle v. Landis, 131 
 Penn. St. 573 ; Beere v. Beere, 79 
 Iowa, 555; Nichols v. Nichols, 61 
 Vt. 426; Bliss v. West, 58 Hun, 71; 
 Dudley v. Dudley, 76 Wis. 5G7 ; 
 Alkire v. Alkire, 134 Ind. 350; 
 Tyler v. Tyler, 126 111. 525 ; Fere- 
 bee V. Pritchard, 112 N. C. 83; 
 Murray v. Murray, 90 Ky. 1. If a 
 •written proposal, in consideration of 
 marriage, to leave certain defined 
 real estate by will is accepted, and 
 the marriage takes place on the 
 faith thereof, a conveyance of that 
 property may be decreed, after the 
 death of the person making such 
 proposal, against all who claim 
 under him as volunteers. Synge v. 
 Synge, [1894] 1 Q. B. 46G. See 
 Thompson v. Tucker- Osborn, 111 
 Mich. 470. If the marriage is void 
 because the woman's first husband 
 proves to be still living, the heirs of 
 the second husband, who lived with 
 the woman as his wife until his 
 152 
 
 death, cannot in equity obtain a 
 reconveyance of property which 
 she received under his ante-nuptial 
 contract. Ogden v. McHugh, 167 
 Mass. 276. A husband who seeks 
 to enforce against the wife an ante- 
 nuptial agreement in his favor will 
 be required to prove complete good 
 faith in the making of the contract. 
 Graham v. Graham, 143 N. Y. 573. 
 A conveyance by a man about to 
 marry of a reasonable part of his 
 estate to his children by his first 
 wife is not a fraud upon the second 
 wife. Kinne v. Webb, 54 Fed. Rep. 
 34. In Nance v. Nance, 84 Ala. 
 375, an ante-nuptial settlement was 
 held not voidable by creditors, even 
 though the husband was then insol- 
 vent and intended to defraud them, 
 it not being shown that the wife 
 knew of his insolvency and fraudu- 
 lent intention. But see Flory v. 
 Houck, 186 Penn. St. 263 ; Ready 
 V. White, 168 111. 76. Actual fraud 
 is necessary to avoid such a settle-
 
 CHAP. IV.] 
 
 AGREEMENTS. 
 
 [§ 122. 
 
 his wife during coverture will be enforced as a trust, except as 
 against creditors.^ In case of a savings bank, where, after pay- 
 ment of expenses, the entire fund and its accumulations go to 
 the depositors, the deposits are held in trust for the depositors.^ 
 Where money is deposited in a counnercial bank, no trust in 
 general arises, but only a relation of debt(jr and creditor ; when, 
 however, the money is paid into bank fur a specifie<l purpose 
 other than that of a loan to the bank, a fiduciary relation is 
 created, and some cases go so far as to hold that after the bank 
 has gone into insolvency, money so paid may be recovered 
 from the assignee in preference to the general creditors.^ (a) 
 
 1 Templeton v. Brown, 86 Tenn. 50. 
 
 2 Johnson v. Ward, 2 Brad. (111.) 261. 
 
 * See Parsons's edition of Morse on Banks & Banking, §§ 215, 565 c. 
 See Peak v. Ellicott, 30 Kans. 156 ; Ellicott v, Barnes, 131 Ivans. 170. 
 And see also on this general subject Nat'l Bank v. Ellicott, 31 Kans. 173. 
 
 ment. Clark v. McMahon, 170 Mass. 
 91 ; riussey v. Castle, 41 Cal. 239. 
 
 In an article upon Irrevocable 
 Trusts, in 11 Jurid. Rev. 55, 65, 
 A. M. Hamilton, Esq., says of the 
 law of Scotland : " Of the obligatory 
 and irrevocable nature of an ante- 
 nuptial contract there is no room for 
 doubt ; but a post-nuptial settlement 
 admittedly is le.ss onerous, and in 
 certain aspects is no substitute for 
 an ante-nuptial contract. On this 
 account it has been attempted to 
 treat such contracts as eipiivalent 
 in a question of revocability to a 
 voluntary trust. But it may now 
 be considered settled that while in a 
 question with creditors it may be 
 right to do so, intra fnmUiam they 
 have all the force of ante-nuptial 
 contracts. A unilateral deed may 
 be so referred to in a marriage con- 
 tract as to become a part of it." 
 
 (a) In order to hold the banker 
 liable for a breach of trust, as to 
 money deposited with him by a trus- 
 
 tee, there must have been a misap- 
 plication of the trust funds, to which 
 the banker is privy or of which he 
 has notice, and, in general, it must 
 also appear that there was some 
 personal benefit to the banker de- 
 signed or stipulated for, or that a 
 special deposit was made. See 
 Coleman v. Bucks & Oxon Union 
 Bank, [1897] 2 Ch. 243, 248, and 
 cases cited : Thomson v. Clydesdale 
 Bank, 69 L. T. 156 ; Union Bank 
 V. Murray- Aynsley, [1898J A. C. 
 693 ; Li re Ulster Building Co., 25 
 L. R. Ir. 24 ; ]\lanhattan Bank v. 
 Walker, 130 U. S. 267 ; Kissam v. 
 Anderson, 145 U. S. 435; Phila- 
 delphia Nat. Bank v. Dowd, 38 F. 
 R. 172 ; Knight i'. Fisher, 58 id. 
 991 ; Cecil Nat. Bank v. Thurber, 
 59 id. 913; 52 id. 513; Montagu v. 
 Pacific Bank, 81 id. 602; Moreland 
 V. Brown, 86 id. 257; Duckett v. 
 National .M. Bank, 86 Md. 400 ; 
 Brooke v. King, 104 Iowa, 713; 
 Smith V. Des Moines Nat. Bank 
 153
 
 § 123.] IMPLIED TRUSTS. [CHAP. IV. 
 
 Where the plaintiff placed certain money in the hands of the 
 intestate to be repaid to him on her death, only the relation of 
 debtor and creditor was created, and the plaintiff could not be 
 preferred to other creditors.^ 
 
 § 123. A direction to trustees that a certain person shall 
 be employed as agent and manager for the trustees if there 
 should be occasion for such services, gives no interest in the 
 estate to such person, nor will any kind of trust be implied 
 which equity can enforce ;''^ and so when the trustees were 
 recommended to employ a receiver.^ 
 
 1 Kershaw v. Suowden, 36 Ohio St. 183. 
 
 2 Finden v. Stephens, 2 Phill. 142. 
 
 8 Sliavv V. Lawless, LI. & Goo., Sugden, 154; 5 CI. & Fin. 129 ; LI. & 
 Goo., Plunket, 559. In Tibbits v. Tibbits, 19 Ves. 656, a testator made 
 a devise to his son, recommending him to continue A. & B. in the occu- 
 pation of their respective farms so long as they managed them well ; and 
 it was held to create a trust for them. And see Quayle v. Davidson, 12 
 Moore P. C. 268. In Hibbert v. Hibbert, 3 Mer. 681, a testator directed 
 that II. should be appointed receiver of his estates in Jamaica, adding 
 that he intended the appointment to benefit H. in a pecuniary point of 
 view ; and it was held that H. was entitled to be appointed agent, receiver, 
 and consignee of said estates without giving security. And so when a 
 testator appointed an auditor with a remuneration, it was held that the 
 trustees could not remove him, there being no imputation upon his con- 
 duct. Williams v. Corbet, 8 Sim. 349. The case of Shaw v. Lawless was 
 
 (Iowa), 78 N. W. 238; State v. deposits which it accepts. Gray v. 
 
 Midland State Bank, 52 Neb. 1 ; Merriam, 148 111. 179. By the 
 
 Portland S. Co. v. Dana, 172 Mass. weight of authority, in the absence 
 
 417; 52 N. E. 524. If trust-money of fraud, the collection of a draft or 
 
 deposited in a bank is withdrawn by check by a bank creates the relation 
 
 the trustee for his own use with the of debtor and creditor, and not a 
 
 bank's knowledge, the trustee can- trust. See Hallam v. Tillinghast, 
 
 not sue the bank to recover it for 19 Wash. 20, 27, and cases cited : 
 
 the trust estate, though the ceslui Little v. Chadwick, 151 ]\Iass. 109 ; 
 
 que trust joins with him in the suit. Nonotuck Silk Co. v. Flanders, 87 
 
 Munnerlyn v. Augusta S. Bank, 88 Wis. 237, overruling McLeod v. 
 
 Ga. 333; 94 Ga. 356. A bank is Evans, 66 Wis. 401 ; Bruner y. First 
 
 liable for the loss through its negli- Nat. Bank, 97 Teun. 540. 
 gence of collateral security or special 
 
 154
 
 CHAP. IV.] AGREEMENTS. [§ 123. 
 
 a very severely contested ease. Mr. Sugden, Chancellor for Ireland, was 
 of opinion tliat the agent was entitled to the place ; but he was overruled, 
 and the couclusion arrived at stated in the text. From the cases cited in 
 this note it would appear that the question is not entirely settled ; or it 
 may be that every such provision must depend upon the words and inten- 
 tion of each particular will. 
 
 155
 
 RESULTING TRUSTS. [CHAP. V. 
 
 CHAPTER V. 
 
 RESULTING TRUSTS. 
 
 § 124. Creation and character of a resulting trust. 
 
 § 125. Divisions of this kind of trust. 
 
 § 126. Resulting trust where the purchase-money is paid by one, and deed 
 
 is taken to another. See § 142. 
 § 127. Resulting trust where trust funds are used to purchase property, 
 
 and title taken in the name of another. 
 § 128. In what cases a trust results, and when a trust does not result. See 
 
 §§ 143, 156, 160. 
 § 129. When a person uses his fiduciary relation to obtain an interest in, 
 
 or affecting the trust property. 
 § 130. Same rules apply to personal property unless it is of a perishable 
 
 nature. 
 § 131. Where a resulting trust will not be permitted as against law. 
 
 § 136. No resulting trust in a joint purchase. 
 
 § 132. Rules as to a resulting trust. 
 §§ 133, 134. Time and circumstances in the creation of a resulting trust. 
 
 § 135. Parol evidence as to a purchase by an agent not admissible. 
 §§ 137, 138. Resulting trusts may be established by parol. 
 § 139. May be disproved by parol — the burden of proof. 
 
 § 140. Cannot be changed by parol after they arise. 
 
 § 141. Will not be enforced after a great lapse of time. 
 § 142. Resulting trusts under tlie statutes of New York and other States. 
 § 143. A resulting trust does not arise if the title is taken in the name of wife 
 
 or child. 
 § 144. What persons it embraces. 
 
 § 145. Doubts and overruled cases. 
 
 § 146. When it will l)e presumed to be an advancement. 
 
 § 14". The presumption may be rebutted. 
 
 § 148. Is rebutted by fraud in the wife or child. 
 
 § 149. Creditors may avoid such advancements. When and how. 
 
 § 150. A resulting trust from the conveyance of the legal title without the 
 
 beneficial interest. 
 § 151. Every case must depend upon its particular writing and circum- 
 
 stances. 
 § 152. Instances and illustrations. 
 
 §§ 153, 154. If there is an intention to benefit the donee, there is no resulting 
 
 trust. 
 § 155. Gifts to executors may create resulting trusts. 
 § 156. Resulting trusts do not arise upon gifts to charitable uses. 
 § 157. A gift upon trust or to a trustee and no trust declared. 
 
 156
 
 CHAP, v.] PURCHASE WITH ANOTHEU'S MONEY. [§ 124. 
 
 § 158. Always a matter of iutentiua to be gathered from the whole instru- 
 ment. 
 
 § 159. Where a special trust fails it will result. 
 
 § 160. Where a s|jecial tru.st fails fr(jni illegality or lapses, it results. 
 
 § IGOa. To whom it results. 
 
 §§ IGl, 162. Whether a trust results from a voluntary conveyance without con- 
 sideration. 
 
 § 163. Equity docs not favor such conveyances; they maybe void for 
 
 fraud, but no trust results. 
 
 § 164. Voluntary conveyances to wife or child. 
 
 § 1G5. No trust results from a fraudulent transaction. 
 
 § 165 a. How a resulting trust is executed. 
 
 § 124. It has been seen from the preceding chapters that 
 trusts are created by the express dispositions of parties, or 
 they are implied by courts from the words used in such ex 
 press dispositions. Tlicre is another class of tru.sts which 
 result in law from the acts of parties, whether they intended 
 to create a trust or not, and they are aptly designated as 
 resulting trusts (a). They are sometimes called presumptive 
 trusts, because the law presumes them to be intended by the 
 parties from the nature and character of their transactions 
 with each other, although the general foundation of this kind 
 of trusts is the natural equity that arises when parties do 
 certain things. Thus, if one pays the purchase-money of an 
 estate, and takes the title-deed in the name of another, in the 
 absence of all evidence of intention, the law presumes a trust, 
 from the natural equity that he who pays the money for prop- 
 erty ought to enjoy the beneficial interest. The statute of 
 
 (a) See Albright v. Oy.ster, 140 Stees, 47 Minn. Ill ; Puckett r. 
 
 U. S. 493; Lewis v. Wells, 85 Fed. Benjamin, 21 Oregon, .'ITO; Taylor 
 
 Rep. 896 ; Dana v. Dana, 1.54 Mass. v. Miles, 19 id. 550; Leader v. Tier- 
 
 491; Beringer v. Lutz, 179 Penn. ney, 45 Neb. 753 ; Hawks r. Sailors, 
 
 St. 1 ; Converse r. Noyes, 06 N. H. 87 Ga. 234 ; Davis i'. Duvis, 89 id. 
 
 570; Hudson v. White, 17 R L 191: Annis u. Wilson, 15 Col. 236 : 
 
 519; Security Inv. Co. v. Garrett, Campbell v. First Nat. Bank, 22 
 
 3 App. D. C. 69; Cox v. Cox, 95 id. 177; Cobb v. Edwards. 117 N. C. 
 
 Va. 173; Claflin v. Ambrose, 37 244; Goforth r. Goforth. 47 S. C. 
 
 Fla. 78; McGraw V. Daly, 82 Mich. 126; Plass v. Plass, 122 Cal. 3; 
 
 500 ; Ripley v. Seligman, 88 id. 177; Wacker v. Wacker (Mo.), 48 S. W. 
 
 Rice r. Rice, 107 id.241 ; Champlin 835; Piedmont Land Co. r. Pied- 
 
 V. Champlin, 136 111. 309 ; Hagan v. mont Foundry Co., 96 Ala. 389. 
 Powers, 103 Iowa, 593 ; Lambert v. 
 
 157
 
 § 125.] RESULTING TRUSTS. [CHAP. V. 
 
 frauds does not affect the creation of these trusts, for the 
 reason that, where there is no evidence of intention, it could 
 not be expected that a declaration of intention in writing, 
 properly signed, would be made or could be produced. 
 
 § 125. Lord Chancellor Hardwicke said that a resulting 
 trust arising by operation of law existed: (1) when an estate 
 was purchased in the name of one person and the considera- 
 tion came from another ; (2) when a trust was declared only 
 as to part, and nothing was said as to the residue, that residue 
 remaining undisposed of, remained to the heir-at-law ; and he 
 observed that he did not know of any other instances, unless 
 in case of fraud. ^ In this chapter resulting trusts will be 
 examined under five heads: (1) when the purchaser of an 
 estate pays the purchase-money and takes the title in the 
 name of a third person ; (2) where a person standing in a 
 fiduciary relation uses fiduciary funds to purchase property, 
 and takes the title in his own name ; (3) where an estate is 
 conveyed upon trusts, which fail, or are not declared, or are 
 illegal ; (4) when the legal title to property is conveyed, and 
 
 1 Lloyd V. Spillett, 2 Atk. 150. In 2 Lomax, Dig. 200, resulting trusts 
 are considered under the name of implied trusts, as arising: (1) out of the 
 equitable conversion of land into money or money into land; (2) where an 
 estate is purchased in the name of one person and the consideration is 
 paid by another; (.3) where there is a conveyance of land without any 
 consideration or declaration of uses; (4) where a conveyance of land is 
 made in trust as to part and the conveyance is silent as to the residue ; 
 (5) where a conveyance is made upon such trusts as shall be appointed, 
 and there is default of appointment: (G) where a conveyance is made upon 
 particular trusts which fail of taking effect; (7) where a purchase is made 
 by a trustee with trust-money ; (8) where a purchase of real estate is made 
 by a partner in his own name with partnership funds; (9) where a renewal 
 of a lease is obtained by a trustee or other person standing in a fiduciary 
 relation; (10) where purchases are made of outstanding claims upon an 
 estate by trustees or some of the tenants thereof connected by privity of 
 estate with others having an interest therein; (11) where fraud has been 
 committed in obtaining the conveyance; (12) where a purchase has been 
 made without a satisfaction of the purchase-money to the vendor; (13) 
 ■where a joint purchase has been made by several, and payments of the 
 purchase-money to the vendor have been made beyond their proportion. 
 158
 
 CHAP, v.] PURCHASE WITH ANOTHER'S MONEY. [§ 12G. 
 
 there is no reason to infer that it was the intention to convey 
 the beneficial interest; and (5j where voluntary conveyances 
 arc made, or conveyances without consideration. 
 
 § 126. Where, upon a purchase of property, the convey- 
 ance of the legal title is taken in the name of one person, 
 while the consideration or a part of it is given or paid by 
 another, not in the way of a loan to the grantee, the parties 
 being strangers to each other, a resulting trust immediately 
 arises from the transaction (unless it would be enforcing a 
 fraud to raise a resulting trust ^), and the person named in 
 the conveyance will be a trustee for the party from whom the 
 consideration proceeds.^ In a Minnesota case the court said 
 
 1 Almond v. Wilson, 75 Va. 626. 
 
 2 Willis i: Willis, 2 Atk. 71; Lloyd v. Spillett, 2 Atk. 150; Eider v. 
 Kidder, 10 Ves. 3(K); Ex parte Houghton, 17 Ves. 253; Trench v. Harri- 
 son, 17 Sim. Ill; Rediugton c. Kedington, 3 Ridg. 177; Crop u. Norton, 
 9 iMod. 235; Barn. 184; 2 Atk. 75; Ilungate v. Hungate, Toth. 120; Ex 
 parte Vernon, 2 P. Wms. 549; Ambrose v. Ambrose, 1 id. 321 ; Woodman 
 V. Morrel, 2 Freem. 33, 123; Murless r. Franklin, 1 Swanst. 17; Finch v. 
 Finch, 15 Ves. 50; Grey r. Grey, 2 Swanst. 597 ; Finch, 340; Groves r. 
 Groves, 3 Y. & J. 170 ; Lade r. Lade, 1 Wils. 21 ; ]May r. Steele, 2 V. & 
 B. 390; Lever v. Andrews, 7 Bro. P. C. 288; Pelly v. Maddin, 21 Vin. 
 Ab. 498; Smith v. Caraelford, 2 Ves. Jr. 712 ; Anon. 2 Vent. 361 ; Withers 
 V. Withers, Amb. 151 ; Prankerd v. Prankerd, 1 S. & S. 1 ; Howe i'. Howe, 
 1 Vern. 415; Clarke v. Danvers, 1 Ch. Cas. 310; Goodright r. Hodges, 
 
 I Watk. Cop. 227 ; Lofft, 230 ; Smith v. Baker, 1 Atk. 385 ; Bartlett v. 
 Pickersgill, 1 Eden, 515 ; Rothwell r. Dewees, 2 Black. G13 ; Buck v. Pike, 
 
 II Maine, 9; Baker r. Vining, 30 id. 126; Kelley r. Jenness, 50 id. 455 ; 
 Page V. Page, 8 N. H. 187 ; Hall v. Young, 37 id. 134 ; Pembroke v. 
 Allenstown, 21 id. 107 ; Tebbetts v. Tilton, 31 id. 283 ; Dow v. Jewell, 18 
 id. 340; Tyford v. Thurston, 16 id. 399; Hopkinson v. Dumas, 42 id. 296; 
 Hall V. Congdon, 56 id. 270; Pinney j'. Fellows, 15 Vt. 525; Dewey i;. 
 Long, 25 id. 564 ; Clark r. Clark, 43 id. 685 ; Peabody v. Tarbell, 2 Cash. 
 232; Livermore v. Aldrich, 5 id. 435; Root r. Blake, 14 Pick. 271; Mc- 
 Gowan v. McGowan, 14 Gray, 121 ; Kendall i'. Mann, 11 Allen, 15; Powell 
 V. Monson & Brimfield Manuf. Co., 3 Mason, 362; Hoxie r. Carr, 1 Sumn. 
 187 ; Dean v. Dean, 6 Conn. 285; Jackson v. Sternberg, 1 Johns. Cas. 153; 
 1 Johns. 45; Jackson r. IMatsdorf, 11 id. 91 ; Boyd v. McLean, 1 Johns. Ch. 
 582 ; Botsford r. Burr, id. 408 ; Steere v. Steere, 5 id. 1 ; White i: Carpen- 
 ter, 2 Paige, 218; Kellogg v. Wood, 4 id. 579; Foote ;•. Colvin, 3 Johns. 
 218; Jackson r. Morse, 16 id. 197; Guthrie v. Gardner, 19 Wend. 414; 
 
 159
 
 § 126.] RESULTING TRUSTS. [CHAP. V. 
 
 that no resulting trust arose where land was bought by A. in 
 the name of B., and B. sold the property in violation of his 
 
 Forsyth v. Clark, 3 id. 638; Partridge v. Havens, 10 Paige, 618 ; Jackson 
 V. Mills, 13 Johns. 463; Lounsbury ;;. Purdy, 16 Barb. 376; Jackson v. 
 AVoods, 1 Johns. Cas. 163; Gomez v. Tradesman's Bank, 4 Sandf. S. C. 
 106 ; Hempstead v. Hempstead, 2 Wend. 109 ; Hopk. 288 ; Harder i'. Harder, 
 2 Sand. Ch. 17 ; Brown v. Cheney, 59 Barb. 628; Union College v. Wheeler, 
 59 Barb, 585; McCartney v. Bostwick, 32 N. Y. 53; Depeyster v. Gould, 
 2 Green, Ch. 480 ; Howell v. Howell, 15 N. J. Eq. 75; Stratton v. Dialogue, 
 16 id. 70 ; Johnson v. Dougherty, 18 id. 406 ; Stevens v. Wilson, IS id. 447; 
 Cutler V. Tuttle, 19 id. 558; Stewart v. Brown, 2 Ser. & R. 461 ; Jackman 
 V. Ringland, 4 Watts & S. 149 ; Strimpfler v. Roberts, 18 Penn. St. 283; 
 Edwards v. Edwards, 39 id. 369 ; Harrold v. Lane, 55 id. 268 ; Nixon's 
 App., 63 id. 279; Wallace v. Duffield, 2 Serg. & R. 521; Lloyd v. Carter, 
 
 5 Harris, 216; Beck v. Graybill, 4 Casey, 66; Kisler v. Kisler, 2 Watts, 
 323; Lynch v. Cox, 11 Harris, 265; Newells i\ Morgan, 2 Harr. 225; 
 Hollis I'. Hollis, 1 Md. Ch. 479 ; Dorsey v. Clarke, 4 Har. & J. 551 ; Glenn 
 V. Randall, 2 Md. Ch. 221; Farringer u. Ramsey, 2 Md. 365; Cecil Bank 
 V. Snively, 23 Md. 253; Neal v. Haythrop, 3 Bland, 551; Bank of U. S. 
 V. Carrington, 7 Leigh, 566; Henderson v. Hoke, 1 Dev. & Bat. Eq. 119; 
 McGuire v. McGowen, 4 Des. 491; Dillard v. Crocker, Speers's Eq. 20; 
 Williams v. Hollingsworth, 1 Strob. Eq. 103 ; Garrett v. Garrett, 1 Strob. 
 Eq. 96 ; Kirkpatrick ?'. Davidson, 2 Kelly, 297 ; Taliaferro v. Taliaferro, 
 
 6 Ala. 404 ; Foster v. Trustees of the Athenaeum, 3 Ala. 302 ; Caple v. 
 McCollum, 27 Ala. 461 ; Anderson v. Jones, 10 Ala. 401 ; Mahorner v. 
 Harrison, 13 Sm. & M. 65; Walker v. Burngood, id. 764; Powell 
 V. Powell, 1 Freem. Ch. 134; Leiper v. Hoffman, 26 Miss. 615; Runnells 
 V. Jackson, 1 How. (Miss.) 358; Harvey v. Ledbetter, 48 Miss. 95 ; ]\IcCar- 
 roll V. Alexander, 48 Miss. 128 ; Hall v. Sprigg, 7 Mar. (La.) 243 ; Gaines 
 V. Chew, 2 How. 619; McDonough Ex'rs v. Murdock, 15 How. 367; 
 Tarpley v. Poaze, 2 Tex. 139 ; Long v. Steiger, 8 Tex. 460 ; Oberthier v. 
 Strand, 33 Tex. .522; McGuire v. Ramsey, 4 Eng. 519; Ensley v. Ballen- 
 tine, 4 Humph. 233 ; Thomas v. Walker, 5 Humph. 93; Smitheal v. Gray, 
 1 Humph. 491; Click v. Click, 1 Heisk. 607; Gass v. Ga.ss, id.. 613; 
 Harris i'. Union Bank, 1 Cold. 152; Perry v. Head, 1 A. K. Marsh. 47; 
 Chaplin v. McAfee, 3 J. J. Marsh. 513; Letcher i'. Letcher, 4 id. 592 ; 
 Doyle I'. Sleeper, 1 Dana, 536; Stark v. Canady,' 3 Litt. 399; Creed v. 
 Lancaster Bank, 1 Ohio St. 1; Williamsu. Van Tuyl, 2id. 336; McGovern 
 V. Knox, 21 id. 551; Elliott v. Armstrong, 2 Blackf. 198; Jennison «;. 
 Graves, id. 444; Rhodes r. Green, 36 Tnd. 11; Milliken v. Ham, id. 166; 
 Church V. Cole, id. 35; Hampson r. Fall, 64 id. 382; Smith v. Sackett, 
 5 Gilm. .534; Prevo r. Walters, 4 Scam. 33; Bruce v. Roney, 18 Til. 67; 
 Seaman v. Cook, 14 id. 501; Williams v. Brown, id. 200; Nickols v. 
 Thornton, 16 id. 113; Latham v. Henderson, 47 id. 185; Rankin u. Har- 
 
 160
 
 CHAP, v.] rURCIIASE WITH ANOTHER'S MONEY. [§ 12G. 
 
 verbal promise to transfer to A., remarking that a resulting 
 trust could arise only on a conveyance of land, not on a 
 promise to convey. This is clearly too narrow a meaning to 
 give the law, and the decision on the facts did not require 
 it, as the court allowed A. to recover from B. the purchase- 
 money as benefit received by B. voluntarily from A.^ Tiie 
 burden is of course upon the one claiming the existence of 
 the trust to establish the facts upon which it rests by clear 
 and satisfactory evidence.^ In New York and Wisconsin there 
 are statute provisions that an absolute deed made with consent 
 
 per, 23 Mo. 579; Paul v. Chouteau, 14- Mo. 580; Kelly v. Johnson, 28 id. 
 249 ; Baumgartner c. Guessfeld, 38 id. 36 ; Johnson v. Quarles, 46 id, 423; 
 Russell V. Lode, 1 Iowa, 560; McLennan r. Sullivan, 13 id. 521; Tlnsley v. 
 Tinsley, 52 id. 14 ; Ragan v. Walker, 1 Wis. 527 ; Irvine v. Marshall, 7 
 Minn. 286; Millard v. Hathaway, 27 Cal. 119; Bayles v. Baxter, 22 Cal. 
 575; Case v. Codding, 38 id. 191 ; Wilson v. Castro, 31 id. 420; Jenkins i-. 
 Frink, 30 id. 586; Settembre v. Putnam, 30 id. 490; Frederick v. Haas, 
 
 5 Nev. 386; Philips v. Cramnaond, 2 Wash. C. C. 441; Hardens. Darwin 
 
 6 Pulley, 66 Ala. 55; Lewis v. Building & Loan Assoc, 70 id. 276; Rose 
 V. Gibson, 71 id. 35 ; Shelby r. Tardy, 84 id. 327 ; Shelton v. A. & T. Co., 
 82 id. 315; Barroilhet v. Anspacher, 08 Cal. 116 ; Murphy?;. Peabody, 63 
 Ga. 522; Cottle v. Ilarrold, 72 id. 830; McNamara i\ Garrity, 106 III. 
 384; Springer r. Springer, 114 id. 550 ; Harris v. Mclntyre, 118 id. 275; 
 Donlin v. Bradley, 119 id. 420; Bush v. Stanley, 122 id. 406; Cooper v. 
 Cockrura, 87 Ind. 443 ; Boyer v. Libey, 88 id. 235 ; Witts v. Horney, 59 
 Md. 581 ; Forre.ster v. IMoore, 77 Mo. 651 ; Bear v. Koenigstein, 16 Neb. 
 65; Gogherty v. Bennett, 37 N. J. Eq. 87; Syckle v. Kline, 34 id. 332; 
 Ramage v. Ramago, 27 S. C. 39; Sexton v. Ilollis, 26 S. C. 231; Richard- 
 son i\ Mounce, 19 id. 477; Ex parte Trenholm, id. 126, — an interesting 
 case because of the decision that money drawn from a fund belonging to 
 A. and B. together was to be considered as taken from the part that be- 
 longed to A., and no trust should result to B. in the land bought by the 
 check, it appearing that on settlement of all the accounts B. was indebted 
 to A. ; Laws v. Law, 76 Va. 527 ; see also Murray v. Sell, 23 W. Va. 
 473; Heiskell v. Powell, 23 W. Va. 717. The rule applies where money 
 is advanced to enable a former owner to redeem from a tax sale. Fames 
 V. Ilardin, 111 111. 645. In Michigan, the transaction or trust must ap- 
 pear upon the face of the deed, otherwise no trust results to the payer 
 of the purchase-money. Groesbeck v. Seeley, 13 Mich. 329 ; Campbell v. 
 Campbell, 21 Mich. 428. 
 
 1 Johnson v. Krassin, 25 Minn. 118, see § 226. 
 
 2 Bibbo. Hunter, 79 Ala. 351; Carter Bros. v. Challen, 83 id. 135; 
 Reynolds v. Caldwell, 80 Ala. 232. 
 
 VOL. I. — 11 161
 
 § 126.] RESULTING TEUSTS. [CHAP. V. 
 
 of the one who pays the purchase-money shall vest the title 
 in the grantee ^ against the person paying the money ; ^ but 
 with this exception the clear result of all the cases is, that a 
 trust of a legal estate, whether freehold, copyhold, or lease- 
 hold, whether taken in the names of the purchaser and others 
 jointly, or in the name of others, without that of the pur- 
 chaser, whether in one or several, whether jointly or succes- 
 sively, results to the person who advanced the purchase- 
 money,^ or on whose behalf it is advanced ; as where the 
 money is advanced by way of loan to the purchaser, and the 
 title is taken in the name of the lender as security, a trust 
 results to the purchaser.^ If only part of the purchase-money 
 is paid by a third person, a trust results pro tanto^ (a). This 
 
 1 Schultze V. New York City, 103 N. Y. Ill; Campbell v. Campbell, 
 70 Wis. 311 ; R. S. § 2077 ; Skinner v. James, 69 id. 605. And the bur- 
 den is on the person claiming the trust to disprove assent. Knight v. 
 Leary, 54 Wis. 459. Even though the grantee subsequently acknowledges 
 the trust in writing, it will not avail against one who has taken the land 
 from the grantee for value, or even against his assignees in insolvency. 
 Stebbins v. Morris, 23 Blatch. (U. S ) 181, — a case construing the New 
 York statutes, the object of which is to prevent secret trusts ; and for this 
 purpose they destroy trusts resulting from the payment of purchase-money 
 when the deed is made to another with consent of the payor, except that 
 every such conveyance is deemed fraudulent as against the creditors 
 of the person paying the purchase-money nntil fraudulent intent is 
 disproved. 
 
 2 As against his creditors the transaction is presumed fraudulent until 
 fraudulent intent is disproved, and a trust results in their favor. Niver 
 V. Crane, 98 N. Y. 40. 
 
 3 By Lord Ch. B. Eyre in Dyer v. Dyer, 2 Cox, 92. 
 
 4 Bates V. Kelly, 80 Ala. 142. 
 
 5 Somers v. Overhulser, 67 Cal. 237; Lipscomb v. Nichols, 6 Col. 290. 
 
 (a) A resulting trust arises from paid. Collins v. Corson (N. J. Eq.), 
 
 payment of apart of the purchase 30 Atl. 862; Fay v. Fay, 50 N. J. 
 
 price of real estate only when the Eq. 260; O'Donncll v. White, 18 
 
 proportionate share is ascertainable R. I. 659 ; Rogers v. Tyley, 144 111. 
 
 and the payment was distinctly made 652; Towle r. Wadsworth, 147 111. 
 
 for a specific part. In these cases 80 ; Van Buskirk v. Van Buskirk, 
 
 the interest of the cestui que trust is 148 111. 9 ; Strong i\ Messinger, id. 
 
 determined by the proportion his 431; Torrencer. Shedd, 156 111. 194; 
 
 contribution bears to the total sum Obermiller v. Wylie, 36 F. R. 641 ; 
 162
 
 CHAP, v.] PURCHASE WITH ANOTHER'S MONEY. [§ 126. 
 
 rule lias its foundation in the natural presumption, in the 
 absence of all roljuttiui^ circumstances, that he who su[)plies 
 the purchase-money intends the j)urchase to be for his own 
 benefit, and not for another, and that the conveyance in the 
 name of another is a matter of convenience and arrangement 
 between the parties for collateral purjjoses,^ and this rule is 
 vindicated by the experience of mankind.^ (a) Where the 
 purchase-money is not already a trust fund it must be paid at 
 the time the purchase is made in order to create a resulting 
 trust proper (that is, the trust must arise at the time of the 
 transfer of the title, and cannot be raised by the subsequent 
 application of money of another to the satisfaction of the 
 unpaid purchase-money^) ; and it must also be borne in mind 
 that if one person advance the money by way of loan to the 
 vendee, no trust results ^ (1>). Analogous to these cases where 
 the money is paid to the vendor by or on behalf of some one 
 other than the vendee of the legal title, are cases in which 
 the deed is executed without intent of a gift or sale on time, 
 and the purchase-money is not paid. In effect, the vendor 
 himself pays the purchase-money in such cases, and a trust 
 
 1 2 Story's Eq. Jur. § 1201 ; Glidewell v. Shaugh, 26 Ind. 319 ; Bostle- 
 man v. Bostleman, 24 N, J. Eq. 103. 
 
 2 Edwards i-. Edwards, 39 Penn. St. 369. 
 
 8 Milner i'. Freeman, 40 Ark. 62 ; see § 133. 
 * Whaley v. Wlialey, 71 Ala. 162 ; see § 133. 
 
 McGee v. Wells (S. C), 30 S. E. loh, 148 X. Y. 103, 107; Clark v. 
 
 602; Currence r. Ward, 43 W. Ya. Timmons (Tenn.), 39 S. W. 534. 
 
 367; Rogers r. Donnellan, 1 1 Utah, The husband has the burden of 
 
 108 ; Barton r. Magruder, 69 Miss, proof if he claims that the money 
 
 462 ; Speer v. Burns, 173 Penn. was transferred to him as a gift or 
 
 St. 77 ; Baylor r. Hopf, 81 Texas, loan. Beny v. Wiedman, 40 W. 
 
 637; Camden i\ Bennett, 64 Ark. Ya. 36 ; Sing Bow v. Sing Bow, 
 
 15.5. A wife's payment of a part of (N. J. Eq.), 30 Atl. 867; Kegerreis 
 
 the consideration for a conveyance r. Lutz, 187 Penn. St. 252 ; Berin- 
 
 to her husband vests in her, in the ger v. Lutz, 188 id. 364. 
 absence of fraud, an estate in the (a) Smithsonian Institution v. 
 
 land only when there is a definite Meech, 169 U. S. 398, 407. 
 intention that a specific interest (Ji) Fowler y. Webster, 180 Penn. 
 
 shall vest in her *n proportion to St. 610. 
 the sum paid. Schierloh v. Schier- 
 
 163
 
 § 127.] RESULTING TRUSTS. [CHAP. V. 
 
 results to him.^ These resulting trusts cannot affect a bona 
 fide purchaser without notice.^ 
 
 § 127. If a person having a fiduciary character purchase 
 property with the fiduciary funds in his hands, and take the 
 title in his own name, a trust in the property will result to 
 the cestui que trust, or other person entitled to the beneficial 
 interest in the fund with which the property was paid for.^ 
 As if a trustee purchase with the trust fund and take the 
 title in his own name or in the name of another with notice 
 of the trust, the trust results to the cestui que trust ; ^ if a 
 guardian purchase with the money of his ward, a trust will 
 result to the ward ; ^ and if an executor or administrator 
 purchase property in his own name with money belonging 
 
 1 Bennet v. Hutson, 33 Ark. 762. 
 
 2 Gray v. Corbit, 4 Del. Ch. 135. 
 
 « Schlaeper i'. Corson, 32 Barb. 510 ; Rice v. Rice, 108 111. 199 ; Market 
 V. Smith, 33 Kans. 66, whether the title taken is absolute or only qualified 
 or contingent; Weaver v. Fisher, 110 111. 146. In St. Patrick's Church v. 
 Daly, 116 111. 79, the rule is not correctly stated, though the decision is 
 right on the facts. Palmetto Co. v. Risley, 25 S. C. 309 ; Salinas v. Pear- 
 sail, 24 S. C. 179 ; Kennedy v. Baker, 59 Tex. 151. An agent of an 
 illiterate man, loaning his principal's money on note and mortgage pay- 
 able to himself, who bids in the property at foreclosure sale, holds the 
 title in trust for his principal. Cookson v. Richardson, 69 111. 137. 
 
 4 Freeman v. Kelly, 1 Hoff. 90 ; Harrisburgh Bank v. Tyler, 3 Watts 
 & S. 373; Martin v. Greer, 1 Ga. Dec. 109; Moffitt v. McDonald, 11 
 Humph. 457; Kirkpatrick v. McDonald, 11 Penn. St. 387; Wilhelra i-. 
 Folmer, 6 id. 296; Thompson's App. 22 id. 16; Day v. Roth, 18 N. Y. 
 448; Lathrop v. Gilbert, 2 Stockt. 344; McLarren r. Brewer, 51 Me. 402; 
 Pugh V. Pugh, 9 Ind. 132; Valle v. Bryan, 19 Mo. 423; Neill v. Keese, 
 13 Tex. 187; Hancock v. Titus, 33 Miss. 224; Whaley v. 'Whaley, 71 
 Ala. 161; Preston v. McMillan, 58 Ala. 84; Buck v. Paine, 75 Maine, 
 347; Bank r. Simonton, 86 N. C. 189. 
 
 ^ Caplinger v. Stokes, Meigs, 175 ; Lee v. Fox, 6 Dana, 171 ; Pugh v. 
 Pugh, 9 Ind. 132; Johnson v. Dougherty, 3 Green, Ch. 406; Bancroft i\ 
 Cousen, 13 Allen, 50. But if the guardian buy for the ward, but use his 
 own money in payment, the ward cannot claim a trust in the land, for it 
 is within the statute of frauds. Kisler i'. Kisler, 2 Watts, 323 ; Johnson 
 V. Dougherty, 18 N. J. Ch. 406 ; Snell v. Elam, 2 Ileisk. 82. If a 
 guardian receive a note in his own name in payment of a debt due the 
 ward, the note is held by him in trust. Dorr v. Davis, 76 Maine, 301. 
 164
 
 CHAP, v.] PURCHASE WITH TEUST-MONEY. [§ 127- 
 
 to the estate, a trust in the property will result to the heirs, 
 k'ijatecs, or other pensoiis entitled to the beneficial interest 
 in the estate.^ A purchase with trust funds is virtually a 
 purchase for the cestui.^ If the trustees of a corporation pur- 
 chase lands in their own names, with the corporate funds, 
 a trust will result to the corporation; ^ or if a committee, 
 guardians, or trustees of an insane person purchase projjerty 
 in their own names with the lunatic's money, a trust results 
 to the lunatic;* or if a trustee erect buildings on his own 
 land with the trust funds,^ or if an agent with the money of 
 his principal purchase lands and take the deeds to himself, 
 a trust will result to the principal ;^ or if a partner purchase 
 lands with partnership funds, and take the title to himself, 
 a trust will result to the partnership ; ' (a) or if land is 
 
 1 Wallace v. Duffield, 2 Ser. & R. 521 ; Buck v. Uhrich, 10 Penn. St. 
 499 ; Claussen v. Le Franz, 1 Clarke, 226 ; McCrory v. Foster, 1 Clarke, 
 Iowa, 271 ; Harper r. Archer, 28 Miss. 212; Schaffuer v. Grutzmacher, 
 6 Clarke, 137 ; Seaman v. Cook, 14 111. 501 ; Garrett v. Garrett, 1 Strob. 
 Eq. 96 ; Williams v. Hollingsworth, 1 Strob. Eq. 103 ; White v. Drew, 
 42 Mo. 5G1 ; Stow v. Kimball, 28 111. 93 ; Dodge v. Cole, 97 111. 338 ; Bar- 
 ker V. Barker, 14 Wis. 131. 
 
 2 Gale I'. Harby, 20 Fla. 171. 
 
 8 Church r. Sterling, 16 Conn. 388; Church v. Wood, 5 Ham. 283. 
 
 * Reid V. Fitch, 11 Barb. 399; Turner v. Pettigrew, 6 Humph. 438; 
 Stratton v. Dialogue, 1 Green, Ch. 70 ; Buffalo R. R. Co. v. Lampson, 47 
 Barb. 533 ; Hamnett's App., 72 Penn. St. 337. 
 
 6 Brazel v. Fair, 26 S. C. 370. 
 
 6 Robb's App., 41 Penn, St. 45; Eshleman v. Lewis, 49 id. 410; Far- 
 mers' etc. Bank v. King, 57 id. 202; Church v. Sterling, 16 Conn. 388; 
 Bank of America v. Pollock, 4 Edw. 215 ; Day v. Roth, 18 N. Y. 448 ; 
 Bridenbecker v. Lowell, 32 Barb. 10; Moffitt v. McDonald, 11 Humph. 
 457 ; Hutchinson v. Hutchinson, 4 Des. 77 ; Follansbe r. Kilbreth, 17111. 
 522 ; Chastain v. Smith, 30 Ga. 96 ; Wynn v. Sharer, 23 Ind. 253. 
 
 ' Philips V. Crammond, 2 Wash. C. C. 441 ; Baldwin v. Johnston, 
 Saxt. 441; Freeman v. Kelly, Hoff. 90; Turner v. Pettigrew, 6 Humph. 
 
 (a) See Riddle v. Whitehill, finally paid, and sold a quarter in- 
 
 135 U. S. 621 ; Ricketts r. Murray, terest on the basis of his represen- 
 
 73 F. R. 690 ; Darrow r. Calkins, tation, it was held to be a joint 
 
 154 N. Y. 503. Where one repre- account relation, and the buyer was 
 
 sented that the price to be paid for held entitled to the excess he paid. 
 
 a mine was much larger than he Merino v. Munoz, 38 N. Y. S. 678. 
 
 165
 
 § 127.] 
 
 RESULTING TKUSTS. 
 
 [chap. V. 
 
 bought by a firm for firm purposes with firm money, and the 
 title is taken in their individual names, it is held in trust 
 for the firm;^ or if one take an estate for services rendered 
 jointly by himself and another, the latter may elect to 
 regard the first as a trustee ; ^ (a) or if a husband purchase 
 
 438, 441 ; Edgar v. Donnally, 2 Munf. 387 ; Smith v. Burnham, 3 Sumner, 
 435; Piatt y. Oliver, 2 McLean, 2G7; Coder ij. Haling, 27 Penn. St. 84; 
 Smith V. Ramsey, 1 Gil. 111. 373; Barkley v. Tapp, 87 Ind. 25; Pugh v. 
 Currie, 5 Ala. 446; Oliver v. Piatt, 3 How. 401 ; Evans v. Gibson, 29 Mo. , 
 223 ; Malloi-y v. Mallory, 5 Bush, 564 ; Settembre v. Putnam, 30 Cal. 490;' 
 Jenkins v. Frink, 30 Cal. 586; Homer v. Homer, 107 Mass. 85; Richards 
 V. Manson, 101 Mass. 480; Ebberts's App. 70 Penn. St. 79; Winkfield v. 
 Brinkman, 21 Kans. 682; Trephagen v. Burt, 67 N. Y. 30; Boyd v. 
 McClure, 1 Johns. Ch. 582. 
 
 1 Paige V. Paige, 71 Iowa, 318. 
 
 2 Robarts v. Haley, 65 Cal. 402. 
 
 (a) So when a tenant in com- 
 mon purchases an outstanding title 
 or incumbrance upon the joint 
 estate for his own benefit, the 
 purchase is a trust for all the co- 
 tenants, and a bill in equity lies to 
 enforce such trust. Rector v. Gib- 
 bon, 111 U. S. 276,291; Monroe 
 Cattle Co. V. Becker, 147 U. S. 47; 
 Turner v. Sawyer, 150 U. S. 578, 
 586 ; Virginia Coal Co. v. Kelly, 93 
 Va. 332; Brundy v. Mayfield, 15 
 Mont. 201 ; Kintner v. Jones, 122 
 Ind. 148 ; Allen v. Arkenburgh, 37 
 N. Y. S. 1032; Parker v. Brast, 
 (W. Va.) 32 S. E. 269. This ap- 
 plies when one of several joint 
 lessees of land, to whom the lease 
 gives the privilege of purchasing, 
 buys it for himself. Barbour v. 
 Johnson, 21 D. C. 40. 
 
 An agreement between two or 
 more persons, not occupying fiduci- 
 ary relations towards each otlier, to 
 join in the purchase of land, the 
 title to which is to be taken in tlie 
 name of one who pays the entire 
 166 
 
 consideration, to be held for the 
 benefit of all in proportion to their 
 respective interests, is within the 
 statute of frauds, and must be 
 evidenced by some writing. Par- 
 sons V. Phelan, 134 Mass. 109; 
 Heiskell v. Trout, 31 W. Va. 810; 
 Beulah Marble Co. v. Mattice, 22 
 Col. 547; Fisk v. Patton, 7 Utah, 
 399; Roby v. Colehour, 135 111. 300; 
 
 146 U. S. 153; Reese v. Murnan, 
 5 Wash. 373 ; Maxwell v. Barringer, 
 110 N. C. 76; see Wood v. Perkins, 
 .57 F. R. 258 ; Bailey v. Hemenway, 
 
 147 Mass. 326 ; Dana v. Dana, 154 
 Mass. 491; Towle v. Wadsworth, 
 147 111. 80 ; Gunnison v. Erie Dime 
 S. Co., 157 Penn. St. 303; Turner 
 V. Sawyer, 150 U. S. 578 ; Peterson 
 V. Boswell, 137 Ind. 211; Doran v. 
 Doran, 99 Cal. 311 ; Silvers v. Pot- 
 ter, 48 N. J. Eq. 539. 
 
 When land agreed to be conveyed 
 is exchanged for other land, the 
 latter may be subject to a resulting 
 trust as being purchased by the 
 land agreed for. Hallett v. Parker
 
 ciiAr. v.] 
 
 PURCHASE WITH TRUST-MONEY. 
 
 [§ 127. 
 
 lands with the sepai-atc estate of his wife in his hands, or 
 with the proceeds or accumulations from it, or money put 
 into his hands to invest for his wife, and take the title in 
 his own name, a trust results to the wife ^ (but not if the 
 
 ^ Church V. Jaqucs, 1 Johns. Ch. 450; 3 id. 77; Brooks v. Dent, 
 
 1 Johns. Md. Ch. 523; Dickinson v. Codwise, 1 Sandf. Ch. 214; Pinney 
 V. Fellows, 15 Vt. 525 ; Barron v. Barron, 24 Vt. 375; Lathrop v. Gilbert, 
 
 2 Stockt. 344 ; Kline's App., 39 Penn. St. 4G3 ; Davis v. Davis, 40 id. 312; 
 Bigley v. Jones, 114 id. 51U ; Rupp's App., 100 id. 531; Raybold v. Ray- 
 bold, 20 id. 308 ; Fillman r. Divers, 31 id. 429; Darkin r. Darkin, 23 
 L. J. Ch. 890 ; Wallace v. McCullough, 1 Rich. Eq. 420 ; Pritcliard v. 
 Wallace, 4 Sneed, 405 ; Resor v. Resor, 9 Ind. 347 ; Lench v. Lench, 10 
 Ves. 511; Woodford r. Stephens, 51 Mo. 443 ; Tilford v. Torn-y, 53 Ala. 
 120; Gainus v. Cannon, 42 Ark. 503; Slocum v. Slocum, 9 Brad. (111.) 
 142; Loften v. Witboard, 92 111. 401; Radcliff v. Radford, 90 Ind. 482; 
 Derry v. Derry, 98 Ind. 324 ; Lord v. Bishop, 101 Ind. 334 ; Mitchell v. 
 Colglazier, 106 Ind. 466 ; Broughton v. Brand, 94 Mo. 109 ; Bowen v. 
 McKean, 82 Mo. 594, pro tanto ; City Nat. Bank v. Hamilton, 34 N. J. 
 
 (N. H.), 39 Atl. 433; Francis v. 
 Cline (Va.), 31 S. E. 10. If a hus- 
 band invests his wife's statutory 
 separate estate in land without her 
 assent, and takes the legal title jointly 
 to himself and his wife, he also con- 
 tributing to the purchase, it is a trust 
 pro tanto for the wife to the extent of 
 her contribution. Jones v. Elkins, 
 143 Mo. 017 ; Martin v. Remington 
 (Wis.), 70 N. W. 014. Under an 
 agreement between creditors to 
 purchase their debtor's realty, and 
 that only one of them bid at the 
 sale thereof, a resulting trust arises 
 in favor of the other creditors who 
 do not bid, but tender their shares 
 of the purchase-money. Kennedy 
 V. McCloskey, 170 Penn. St. 3.")4. 
 
 A constructive trust does not 
 arise, under the statute of frauds, 
 •when one-half the purchase price is 
 agreed to be paid by another upon 
 examination of title, and the latter 
 
 does not then pay his share. Taylor 
 V. Kelly, 103 Cal. 178. 
 
 In the West, an entrj' upon public 
 lands made by one person, though it 
 cannot be made for another's exclu- 
 sive benefit, may be shown to be in 
 trust for himself and another person. 
 Sweeney v. Sparling, 81 Iowa, 433 ; 
 Reinhart v. Bradshaw, 19 Xev. 255; 
 Robinson v. Jones, 31 Neb. 20. A 
 mining claim is real estate, and is 
 transferable only by operation of law 
 or by a written instrument; but 
 when a part-owner secretly takes 
 a patent therefor in his own name, 
 it is held in trust for all the owners. 
 Brundy v. Mayfield, 15 Mont. 201 ; 
 IMoore v. Ilamerstag, 109 Cal. 122 ; 
 Hayes v. Carroll (Minn.), 76 N. W. 
 1017. An agreement to locate a 
 mining claim for another's benefit 
 need not be in writing. Book v. 
 Justice M. Co., 58 F. R. 106, 119; 
 Reagan r. McKibben (S. D.), 76 
 N. W. 943. 
 
 167
 
 § 128.] RESULTING TRUSTS. [CHAP. V. 
 
 property used is such as the husband has a right to reduce 
 to possession and make his own, and his conduct evinces an 
 intent to do this ^) ; or if a man purchase an estate with the 
 money of a woman with whom he cohabits, a trust results to 
 her. 2 If a widow purchase an estate in her own name with 
 funds of her deceased husband, a trust results to his chil- 
 dren ; 3 and so if a father purchase in his own name or the 
 name of a third person with funds of his children;* and the 
 rule is the same if purchases are made out of the savings of 
 the wife's separate property; but if the purchase is made 
 from savings out of an allowance made by the husband, or 
 out of the wife's earnings, no trust will result.^ Even where 
 the entry of land in the name of one for the use of another is 
 contrary to statute, the person with whose money the land 
 was bought, if innocent of the wrongful entry, may claim a 
 resulting trust. ^ 
 
 § 128. In all these cases the transaction is looked upon as 
 a purchase paid for by the cestui que trust, as the beneficial 
 interest in the money paid belonged to him;' and the iden- 
 tity of the money does not consist in the specific pieces of 
 money or bills, but in the general character of the fund out 
 of which the payment is made, and the fund may be followed 
 so long as its general character can be identified.^ But 
 
 Eq. 158; Price v. Brown, 98 N. Y. 388; Cade v. Davis, 96 N. C. 139 ; 
 McKamey v. Thorp, 61 Tex. 648; Parker v. Coop, 60 Tex. Ill, and cases 
 cited ; John v. Battle, 58 Tex. 591 ; Heath v. Slocum, 115 Pa. St. 549 ; 
 Holgate V. Eaton, 116 U. S. 33. 
 
 1 Cumraings v. Cummings, 143 Mass. 340-342. 
 
 2 James v. Holmes, 4 De G., F. & J. 470. 
 
 8 Fox V. Doherty, 30 Iowa, 334 ; Roberts v. Opp, 56 HI. 34 ; Musham 
 V. Musham, 87 111. 80. 
 
 * Robinson v. Robinson, 22 Iowa, 427; Eastham v. Roundtree, 56 
 Tex. 110. 
 
 6 Raybold v. Raybold, 20 Penn. St. 308; Merrill r. Smith, 37 Maine, 
 394 ; Henderson v. Warmack, 27 Miss. 830 ; Farley v. Blood, 10 Foster, 
 354. 
 
 « Buren v. Buren, 79 Mo. 538. 
 
 ' Lench v. Lench, 10 Ves. 517; Trench v. Harrison, 17 Sim. 111. 
 
 8 United States v. "Waterborough, Davies, 154; Goepp's App., 15 
 168
 
 CHAP, v.] PURCHASE WITH TRUST-MONEY. [§ 128. 
 
 when the means of identification fail, as when an executor 
 converts an estate into money and mixes it with the general 
 mass of his own money, and there is no identifying the par- 
 ticular money of the trust, the distributees or legatees have 
 no preference over his other creditors, but they must prove 
 their claims.' If, however, a trustee purchase an estate 
 with trust funds, and add funds of his own to the purchase- 
 money, a trust will result to the cestui que trust; and the 
 burden will be on the trustee to show the amount of his own 
 funds in the purchase, otherwise the cestui que trust will 
 take the whole. ^ If the purchase is partly with trust funds 
 and partly not, the cestui has a lien on the whole property 
 for the amount of the fund misapplied. ^ It has been said 
 in some cases that the cestui que trust has no interest in the 
 property purchased with the trust fund in the name of the 
 trustee, but ohIt/ a lien on the property in the nature of a 
 vendor's lien for the purchase-money, with a right to a 
 decree for a sale to reimburse the trust fund.* This is cer- 
 tainly one of the rights of the cestui que trust, if he elects to 
 proceed in that manner, and he may hold the trustee respon- 
 sible, if there is a loss on such sale. On the other hand, 
 the trustee can make no profit to himself by dealing with the 
 trust fund ; ^ and, if he makes a purchase with it, the cestui 
 que trust can elect to treat the property as a part of the trust 
 property, and he is entitled to all the advantages of the 
 speculation or investment thus made with the property in 
 
 Penn. St. 428; Thompson's App., 22 id. 16; McLarren v. Brewer, 51 
 Maine, 402 ; De Bevoise v. Sandford, HofE. 194 ; Campbell r. Walker, 
 5 Yes. 678; Downes r. Grazebrook, 3 Mer. 200; Sanderson r. "Walker, 
 13 Ves. 601 ; Overseers of the Poor v. Bank of Virginia, 2 Gratt. 
 544. 
 
 ^ Thompson's App., 22 Penn. St. 16; Mc Comas r. Long, 85 lud. 
 552. 
 
 * Russell V. Jackson, 10 Hare, 209 ; McLarren v. Brewer, 51 Maine, 
 402 ; Seaman v. Cook, 14 111. 505 ; Farmers, &c. Bank r. King, 57 Penn. 
 St. 202; Persch v. Quiggle, id. 247. 
 
 ' ^lunro r. Collins, Oo Mo. 42. 
 
 * Wallace v. Duffield, 2 Ser. & R. 529; Wallace r. McCiUlough, 1 
 Rich. Ch. 426. 
 
 * Landis v. Saxton, 89 Mo. 375 ; Ward v. Davidson, id. 445. 
 
 169
 
 § 128.] RESULTING TEUSTS. [CHAP. V. 
 
 the name of the trustee.^ No trust results to the holder of 
 ])roj)erty (11.) from the fact that money has been given to B. 
 by C. in order that B. may purchase the said property. H. 
 cannot offer a deed and demand the money. ^ So where 
 A. sells land in which he (A.) has an interest as well as E. , 
 A. giving a bond for the making of a future good title to the 
 whole, and then investing the money received in other prop- 
 erty, there is no trust for E. in this property ; the purchase- 
 money was obtained by A., not in consideration for E. 's 
 interest in the land, but in consideration for the promise 
 made by A. in his bond.^ And if trust-money is expended 
 not in the purchase of land but in improvements upon it, no 
 trust results to the owner of the money. ^ If one who stands 
 in no fiduciary relation to another appropriates the other's 
 money, and invests it in real estate or other property, no 
 trust results to the owner of the money. ^ There is no doubt 
 of this principle upon all the cases, but there is some ques- 
 tion in the books as to what is a fiduciary relation, as where 
 a clerk pilfered money from the store of his employer and 
 invested it in real estate, it was held that there was no such 
 resulting trust; that the employer could compel a convey- 
 ance of the land.^ But where a clerk in a bank embezzled 
 money, and invested it in stocks in the names of his sisters 
 as mere volunteers, it was held that a trust resulted to the 
 owners of the money, and that equity would execute it by 
 compelling a conveyance;^ and this would seem to be the 
 better opinion, as a clerk certainly holds a confidential rela- 
 tion to his employer. In Newton v. Porter, it was held that 
 the holders of the proceeds of stolen property might be 
 charged as trustees for the owner, and there would seem to 
 
 1 Hill on Trustees, 534; Lewinon Trusts, 227 (5th Lond. ed.); Lench 
 V. Lench, 10 Yes. 511; 19 Ves. 58; Weaver v. Fisher, 110 111. 146; Beuti). 
 Priest, 86 Mo. 475. 
 
 2 Rogers v. Rogers, 63 Iowa, 92. ^ Hadley v. Stuart, 62 Iowa, 271. 
 
 4 Bodwell V. Nutter, 63 N. H. 446. 
 
 5 Hawthorne v. Brown, 3 Sneed, 462 ; Ensley v. Ballentine, 4 Humph. 
 233. 
 
 ^ Campbell v. Drake, 4 Tred. 94 ; Pascoag Bank ?•. Hunt, 3 Edw. 583. 
 ' Bank of America r. Pollock, 4 Edw. 215 ; post, § 135. 
 
 170
 
 CHAP, v.] PURCHASE WITH TRUST- MONEY. [§ 129. 
 
 be no principle to the contrary.^ It may depend, however, 
 uijou the extent to which the clerk is trusted. In Lelimann 
 V. Rothbarth ^ the husband of a trustee taking upon himself 
 the management of the estate was held to account as trustee 
 to the cestui for funds coming to him as self-constituted 
 agent for the true trustee, (a) 
 
 § 129. If a person standing in a fiduciary relation makes 
 use of his position to purchase an interest in the trust prop- 
 erty with his own funds, as a reversion, a junior or senior 
 mortgage, or other interest from a third person; or if he 
 purchase other property so immediately connected with the 
 trust estate, that it must be used with the trust estate, and 
 the independent ownership of which would seriously affect 
 the use and value of the trust property, he cannot retain the 
 same for his own benefit, but he must hold it upon a result- 
 ing trust for his beneficiary. 3 The prohibition of the pur- 
 chase of trust property by the trustee does not depend on any 
 question of fraud, but is made absolute to avoid the pos- 
 sibility of fraud.* The temptation of self-interest is too 
 powerful and insinuating to be trusted. A trustee must put 
 
 ^ Newton v. Porter, 5 Lansing, 417; Thompson v. Parker, 3 ^lason, 
 332; Hoffman v. Canow, 22 Wend. 285; Bassett v. Spofford, 45 N. Y. 387; 
 Silsbury r. IVIcCoon, 3 Comst. 579. 
 
 2 111 111. 185. 
 
 8 Holt c. Holt, 1 Ch. Cas. 190; Nesbitt v. Tredennick, 1 Ball & B. 46; 
 Greenlaw v. King, 3 Beav. 9; 10 L. J. (x. s.) Ch. 129 ; Van Epps v. Van 
 Epps, 9 Paige, 237; Torrey v. Bank of Orleans, 9 Paige, 649; Tanner r. 
 Elworthy, 4 Beav. 487; Waters v. BaUey, 2 Y. & C. (N. C.) Ch. 219; 
 Geddings v. Geddings, 3 Russ. 241 ; Dickinson ?'. Codwise, 1 Sandf. Ch. 
 226; Settembre r. Putnam, 30 Cal. 490; Jenkins v. Frink, 30 Cal. ?86; 
 Hall r. Vanness, 49 Penn. St. 457; Harrold r. Lane, 53 id. 269; Heath r. 
 Page, 63 id. 108; Campbell v. Campbell, 21 Mich. 459 ; King i'. Cushnian, 
 43 111. 31 ; Clark v. Cantwell, 3 Head, 202; Holmes r. Campbell, 10 Minn. 
 40 ; Wells v. Francis, 7 Col. 396; Shaw v. Shaw, 86 Mo. 594. 
 
 * Downs V. Richards, 4 Del. Ch. 416; Munsou v. S. G. & C. R. R. Co., 
 103 N. Y. 58. 
 
 (a) Fraud, as the foundation of veyance, and his equitable interest 
 a resulting trust, may be waived by be thereby extinguished. Thomp- 
 the grantor's subsequent act or con- sou v. Marley, 102 Mich. 476. 
 
 171
 
 § 130.] RESULTING TRUSTS. [CHAP. V. 
 
 himself in a position where his private profit will oppose the 
 interests of the estate.^ If a trustee buys an outstanding 
 claim against the trust property, the transaction will be 
 treated as a payment only, and he will be allowed only what 
 he gave. 2 Railway directors cannot deal with the property 
 for their individual benefit, and a sale of it to any one of the 
 board would be voidable in equity at the instance of any one 
 interested in the road.^ A trustee may not buy for himself 
 an outstanding title to the estate.^ One in a fiduciary posi- 
 tion must not so conduct himself as to bring his private 
 interests in conflict with the duties of his office. If an 
 administrator buys land sold to pay a debt due his intestate, 
 the heirs and distributees can elect to take the land and 
 allow him his bid.^ A purchaser from a trustee who has 
 acquired the trust property stands in no better position than 
 the trustee, if said purchaser has notice of the facts. ^ A 
 mere agent, who purchases a reversion in the lands of his 
 principal at a public sale from third persons with his own 
 money, will not be held as a trustee, unless he purchase 
 under some agreement to that effect;'^ and the same rule 
 applies to a tenant in common. ^ 
 
 § 130. The rule embraces personal property as well as 
 real estate; and if a man purchase a bond, ^ annuity, ^*^ stock, ^^ 
 
 1 Russell V. Peyton, 4 Brad. (111.) 481. 
 
 2 Rankin v. Bancroft & Co., 114 111. 441; Oilman v. Healey, 49 Hun, 
 274. 
 
 8 Little Rock & F. S. Ry. Co. v. Page, 35 Ark. 304 ; Duncomb v. N. Y. 
 H. & No. R. R. Co., 84 N. Y. 190. 
 
 * Baker v. S. & W. Mo. R. Co., 86 Mo. 75. 
 
 6 Jones V. Graham, 36 Ark. 383. 
 
 « Cavagnaro v. Don, 63 Cal. 231. 
 
 ' Kennedy v. Keating, 34 Mo. 25. 
 
 8 Keller v. Auble, 58 Penn. St. 410; Mandeville v. Solomon, 33 Cal. 38. 
 
 » Ebrand v. Dancer, 2 Ch. Cas. 26 ; 1 Eq. Ab. 382. 
 10 Rider v. Rider, 10 Ves. 363, and cases cited; 2 Mad. Ch. Pr. 101. 
 
 " Ibid. ; Lloyd v. Read, 1 P. Wms. 607 ; Sidmouth v. Sidmouth, 2 Beav. 
 447; Garrick v. Taylor, 29 Beav. 79; 4 De G., F. & J. 159; Beecher v. 
 Major, 2 Dr. & Sm. 431 ; Ex parte Houghton, 17 Ves. 253 ; Creed v. Lan- 
 caster Bank, 1 Ohio St. 1. 
 172
 
 CHAP, v.] 
 
 PURCHASE WITH TRUST-MONEY. 
 
 [§ 131. 
 
 mortgage, or other personal interest,^ in the name of a third 
 person, the equitable ownership results to the person from 
 whom the consideration moves; but it is said that a result- 
 ing trust cannot be set up in personal property perishable 
 in its nature.- 
 
 § 131. Nor can a resulting trust be set up if it would 
 break in upon the policy of the law, or a public statute;^ as 
 if an alien forbidden to hold land should pay the purchase- 
 money and take the deed to a stranger, a resulting trust in 
 his favor would not be enforced by the courts.* (a) But a 
 
 ^ Ibid. ; Kelley v. Jenness, 50 Maine, 455. 
 
 2 Union Bank v. Baker, 8 Humph. 447. 
 
 ' Ex parte Yallop, 15 Ves. 67; Ex parte Houghton, 17 Ves. 251; 
 Redington v. Redington, 3 Ridg. 181; Groves r. Groves, 3 Y. & J. 163; 
 Camden v. Anderson, 5 T. II. 709 ; Proseus v. Mclntre, 5 Barb. 425; Ford 
 V. Lewis, 10 B. Mon. 127; Baldwin v. Campfield, 4 Halst. Ch. 891; Cutler 
 V. Tuttle, 19 X. J. Eq. 562. 
 
 * Leggett V. Dubois, 5 Paige, 114 ; Hubbard v. Goodwin, 3 Leigh, 492 ; 
 Philips V. Crammond, 2 Wash. C. C. 441 ; Taylor v. Benham, 5 How. 
 U. S. 270; Farley v. Shippen, Wythe, 135; Alsworth v. Cordby, 3 Miss. 
 32 ; Childers v. Childers, 1 De G. & J. 482 ; Phillpotts v. Phillpotts, 10 
 C. B. 85. But if such conveyance is not intended as a fraud upon the 
 law, but is taken by an agent or attorney of the alien in his own name 
 without authority, equity will protect the rights of the alien. Austin v. 
 Brown, 6 Paige, 448; McCow v. Galbrath, 7 Rich. Law, 74. 
 
 (a) In Texas, it seems that a re- 
 sulting trust does not arise for an 
 alien whose money another invests 
 in land, although he may recover a 
 judgment for the money itself by 
 suit, and such judgment may be a 
 lien upon the land. Zundell v. Gess, 
 73 Tex. 144. Equity neither creates 
 nor enforces a resulting trust con- 
 trary to the ascertained intent of the 
 parties. Morris i\ Clare, 1.32 Mo. 
 232, 236 ; Ward v. Ward, 59 Conn. 
 188 ; Zimmerman v. Barber, 176 
 Penn. St. 1. A resulting trust may, 
 however, arise in a surplus remain- 
 ing after the purposes of the trust 
 
 have failed or are fully accom- 
 plished. See Smith c. Cooke, [1891] 
 A. C. 297; Bork r. Martin, 132 
 X. Y. 280 ; Buffington r. Maxam, 
 152 Mass. 477; Ripley v. Seligman, 
 88 Mich. 177 ; Meyer v. Ilolle, 83 
 Texas, 623 ; Cagwin r. Buerkle, 55 
 Ark. 5. Thus, an assignment for 
 creditors, which contains no ulti- 
 mate declaration of trust for the 
 assignors, gives rise to a resulting 
 trust in the surplus in favor of the 
 assignors, in case there is more tlian 
 enough to pay the debts. Smith r. 
 Cooke, supra ; 45 Ch. D. 38; 62 L. T. 
 456. If the donee is dead when a 
 173
 
 § 132.] RESULTING TRUSTS. [CHAP. V. 
 
 slave, who could not acquire property, purchased land in the 
 name of a free person with the assent of his master, and 
 afterwards becoming free, the resulting trust was enforced 
 in his favor; 1 and so if the disability of the alien is removed 
 by naturalization or otherwise, he may enforce a trust created 
 while he was under disability. ^ 
 
 § 132. Lord Hardwicke doubted whether the application 
 of the rule was not confined to a single purchaser ;3 but it 
 has been expressly decided and long acted upon, that if 
 several make the purchase, pay the consideration, but take 
 the title in the name of a stranger, the trust will result to 
 them jointly.* The same rule applies if several pay the 
 consideration, and take the title to one of their number. If 
 the parties contribute unequally to the payment of the con- 
 sideration, the trust results to each of them in proportion to 
 the amount paid by each.^ In these cases it is settled that 
 
 ^ Leiper v. Hoffman, 26 Miss. 615. 
 
 2 Osterman i;. Baldwin, 6 Wall. 116. 
 
 8 Crop V. Norton, Barn. 179 ; 9 Mod. 233 ; 2 Atk. 74. 
 
 4 Baumgartner v. Guessfeld, 38 Mo. 36 ; Wray v. Steele, 2 V. & B. 
 388; Ross v. Hegeman, 2 Edw. 373; Larkins v. Bhoades, .5 Porter, 196; 
 Powell V. Monson and Brim. Manuf. Co., 3 Mason, 590 ; Letcher v. Letcher, 
 4 J. J. Marsh. 590; Keaton v. Cobb, 1 Dev. Ch. 439. 
 
 5 Rigden v. Walker, 3 Atk. 735 ; Lake v. Gibson, 1 Eq. Cas. Ab. 291 ; 
 Botsford V. Burr, 2 Johns. Ch. 405 ; Quackenbush v. Leonard, 9 Paige, 
 334 ; Jackson v. Moore, 6 Cow. 706 ; Stewart v. Brown, 2 Serg. & R. 461 ; 
 Morey v. Herrick, 18 Penn. St. 129 ; Buck v. Swazey, 35 Maine, 41; Kelley 
 V. Jenness, 50 id. 455; Powell v. Monson & Brim. Manuf. Co., 3 Mason, 
 347; Pierce v. Pierce, 7 B. Mon. 433; Letcher v. Letcher, 4 J. J. Marsh. 
 590; Shoemakers. Smith, 11 Humph. 81; Bernard v. Bongard, Harr. 
 
 trust is created by deed, there is a no resulting trust when the legal 
 
 resulting trust for the settlor. Re estate does not pass because of the 
 
 Tilt, 74 L. T. 163. So, when a trust invalidity of the attempted convey- 
 
 is not sufficiently declared, there ance, even when there is a valuable 
 
 may be a resulting trust for the consideration therefor. Churcher v. 
 
 settlor's benefit. 7?e Wilcock; Wil- Martin, 42 Ch. D. 312; Trustees v. 
 
 cock V. Johnson, 62 L. T. 317 ; Wood- Jackson Square Church, 84 Md. 173 ; 
 
 ruff V. Marsh, 68 Conn. 125 ; Johnson Moore v. Horsley, 156 111. 36. 
 V. Johnson, 92 Tenu. 559. There is 
 174
 
 CHAP, v.] PURCHASE WITH TRUST-MONEY. [§ 133. 
 
 a general contribution towards a purchase is not sufficient; 
 but the person claiming a resulting trust must show that he 
 paid some specific sum, for some distinct interest in, or 
 aliquot part of, the estate, as for a specific share, as one-half 
 or one-quarter, or other particular fraction of the whole; or 
 for a particular interest, as for an estate for life or years, or 
 in remainder in the whole estate. ^ Where two contribute 
 funds and the ])ro))ortions do not appear, the presumption is 
 that the proportions are equal. ^ 
 
 § 133. The trust must result, if at all, at the instant the 
 deed is taken, and the legal title vests in the grantee. No 
 oral agreements, and no payments, before or after the title 
 is taken, will create a resulting trust, unless the transaction 
 is such at the moment the title passes that a trust will result 
 from the transaction itself.^ (a) But if the transaction 
 
 Ch. 130 ; Purdy v. Purdy, 3 I\Id. Ch. 547; Seaman v. Cook, 14 111. 505 ; Dow 
 V. Jewell, 18 N. H. 310; Hall v. Young, 37 N. H. 134; Pinney v. Fellows, 
 15 Vt. 525; Brothers v. Porter, 6 B. Mon. 106; Bogert v. Perry, 17 Johns. 
 351; Jackson v. Bateman, 2 Wend. 570; Cloud v. Ivie, 28 Mo. 578; 
 Baumgartner r. Guessfold, 38 Mo. 36; Union College v. Wheeler, 5 Lans. 
 160 ; McDonald v. McDonald, 24 Ind. 08 ; Frederick v. Haas, 5 Nev. 389 ; 
 Case V. Codding, 38 Cal. 191 ; Clark v. Clark, 43 Vt. 685. 
 
 1 ]\IcGowan v. McGowan, 14 Gray, 119; Buck v. Warren, id. 122, n. 
 Baker v. Vining, 30 Maine, 121; Sayre v. Townsends, 15 Wend. 647; 
 White V. Carpenter, 2 Paige, 217 ; Perry v. McHenry, 13 111. 227 ; Crop 
 V. Norton, 2 Atk. 74; Reynolds v. Morris, 17 Ohio St. 510; Cutler v. 
 Tuttle, 19 N. J. Ch. 561 ; 1 Lead. Ca. Eq. 276 ; Billings v. Clinton, 6 
 Rich. (S. C.) 90 ; Olcott c. Bynum, 17 Wall. 44. 
 
 ^ Shoemaker v. Smith, 11 Humph. 81. 
 
 3 See § 126 ; Frickett o. Durham, 109 Mass. 422 ; Rogers v. Murray, 
 3 Paige, 390 ; Dudley v. Batchelder, 53 Me. 403; Connor v. Lewis, 10 
 
 (a) To constitute a simple result- Loomis, 161 Mass. 161 ; Champlin v. 
 ing trust, the money must be paid Champlin, 136 111. 309; Summers 
 or secured at the time of the pur- v. INIoore, 113 N. C. 394. But when 
 chase ; the trust arises from the a trustee invests trust funds in real 
 payment, and not from the parol estate, the cestui que trust\<! equity to 
 agreement. Collins v. Carson (N. J. charge the lands is not dependent 
 Eq.), 30 Atl. Rep. 862 ; Levi u. upon payment at the time of the 
 Evans, 57 F. R. 077; Osgood v. purchase, but the right may be en- 
 Eaton, 62 N. H. 512; Ryder o forced whether the payment is made 
 
 175
 
 § 133.] 
 
 RESULTING TRUSTS. 
 
 [chap. V. 
 
 creates a trust, a subsequent act may enlarge its effect, as 
 by removing a mortgage to which the trust was subject.^ 
 And where an administrator out of the assets in his hands 
 pays the balance due on land bought by the deceased, and 
 takes title to himself, the heirs can hold him as a trustee. ^ 
 
 Maine, 275; Buck v. Swazey, 35 id. 51 ; Pinnoch v. Clough, 16 Vt. 500; 
 Taliaferro v. Taliaferro, 6 Ala. 404; McGowan v. McGowan, 14 Gray, 119 ; 
 Barnard v. Jewett, 97 Mass. 87 ; Freeman v. Kelly, 1 Hoff. 90 ; Foster 
 r. Trustees, &c., 3 Ala. 302 ; Forsyth v. Clark, 3 Wend. 637 ; Steere v. 
 Steere, 5 Johns. Ch. 1; Botsford v. Burr, 2 Johns. Ch. 408; Jackson v. 
 Moore, 6 Cow. 706 ; White v. Carpenter, 2 Paige, 218 ; Niver v. Crane, 
 98 N. Y. 40 ; Page v. Page, 8 N. H. 187 ; Buck v. Pike, 2 Fairf . 9 ; 
 Graves v. Dugan, 6 Dana, 331 ; Wallace v. Marshall, 9 B. Mon. 148; Gee 
 V. Gee, 2 Sneed, 395; Kelly ('. Johnson, 28 Mo. 249 ; Williard v. Williard, 
 56 Penn. St. 119 ; Nixon's App., 63 id. 279 ; Cutler v. Tuttle, 19 N. J. 
 Eq. 561; Wheeler v. Kirtland, 23 id. 13; Tunnard v. Littell, id. 264; 
 Sheldon v. Harding, 44 111. 68 ; Westerfield v. Kiramer, 82 Ind. 369 ; 
 Kendall c. Mann, 11 Allen, 15; Gerry v. Stimson, 60 Me. 186; Forsyth v. 
 Clark, 3 Wend. 657; Davis v. Wetherell, 11 Allen, 19, n. ; Miller v. Blose, 
 30 Grat. (Va.) 744; Billings r. Clinton, 6 Rich. (S. C.) 90; Boozer v. 
 Teague, 27 S. C. 349; Richardson v. Day, 20 S. C. 412; Parker v. Coop, 
 60 Tex. Ill ; Du Val v. Marshall, 3 Ark. 230; Rhea v. Tucker, 56 Ala. 
 450; McClure v. Doak, 6 Baxter (Tenn.), 364; Sullivan v. Sullivan, 86 
 Tenn. 376. A subsequent agreement will not raise such a trust. Knox 
 V. McFarran, 4 Col. 586. 
 
 ^ Leonard v. Green, 34 Minn. 141. 
 
 2 Jones V. Slaughter, 96 N. C. 541. 
 
 before or after the purchase, so long 
 as the trust funds can be traced 
 and bona Jide purchasers have not 
 acquired rights in the land. Leh- 
 man V. Lewis, 62 Ala. 129; Moore 
 V. Moore (Miss.), 19 So. 953 
 Maroney v. Maroney, 97 Iowa, 711 
 Webb V. Bailey, 41 W. Va. 463 
 See Bourke v. Callanan, 160 Mass 
 195 ; Gray r. Jordan, 87 IMaine, 140 
 Taylor v. Miles, 19 Oregon, 550 
 Barger v. Barger, 30 id. 268; Reeves 
 r. Evans (N. J. Eq.), 34 Atl. 477 
 Gilchrist v. Brown, 165 Penn. St 
 275; Keith v. Miller, 174 111. 64 
 HaiTis V. Elliott (W. Va.), 32 S. E 
 176 
 
 176; Greensboro Nat. Bank v. Gil- 
 mer, 117 N. C. 416 ; Kelly v. 
 McNeill, 118 N. C. 349; Jones v. 
 Hughey, 46 S. C. 193; Bright v. 
 Knight, 35 W. Va. 40. A judg- 
 ment creditor of the trustee, deriv- 
 ing title under an execution, is not 
 such a purchaser for value. Lewis v. 
 Taylor, 96 Ky. 556; Cobb v. Tram- 
 mell, 9 Tex. Civ. App. 527. The 
 same money that was paid need not, 
 in general, have been invested in 
 the land in order to establish a 
 resulting trust. Rarick v. Van- 
 devier (Col.), 52 Pac. 743.
 
 CHAP, v.] PURCHASE WITH TRUST-MONEY. [§ 133. 
 
 And where the money of another in the hands of the pur- 
 chaser is his only reliance lor procuring the title, he cannot 
 escape from a resulting trust l)y paying a little of his own 
 money at the time, and the remainder in trust-money after- 
 ward.^ If two agree to purchase, and one furnishes all the 
 money and takes the title to himself, no trust results to the 
 other. 2 And so if two agree to jjurchase, and one pays the 
 whole consideration-money, and the title is taken to the two, 
 no trust results to the one who paid the whole ; he can only 
 enforce repayment of one-half the consideration-money. ^ 
 There must be an actual payment from a man's own money, 
 or what is equivalent to payment from his own money, to 
 create a resulting trust.* And the money must be advanced 
 and paid in the character of a purchaser ; for if one pay the 
 purchase-money by way of loan for another, and the convey- 
 ance is taken to the other, no trust will result to the one 
 who thus pays the purchase-money;^ on the other hand, if 
 
 1 McLaughlin v. Fulton, 104 Penn. St. 161. 
 
 2 Brooks r. Fowle, U N. H. 248; Tebbetts v. Tilton, 31 N. H. 273; 
 Edwards c. Edwards, 39 Penn. St. 369 ; Coppage v. Barnett, 31 Miss. 621 ; 
 Cook v. Bronaugh, 8 Eng. 183; Fowke v. Slaughter, 3 A. K. Marsh. 56. 
 
 8 2 Sugd. V. & P. 575 (13th ed.) ; but see Butler r. Rutledge, 2 
 Cold. 4. 
 
 4 Wheeler t;. Kirtland, 23 N.J. Eq. 13; Tunnard v. Littell, id. ; Ptoberts 
 V. Ware, 40 Cal. 634; Page v. Page, 8 N. II. 187; Gomez v. Tradesman's 
 Bank, 4 Sandf. S. C. 106 ; Coates v. Woodworth, 13 111. 634 ; Beck v. 
 Graybill, 4 Casey, 66 ; Reeve v. Strawn, 14 HI. 94; Ferguson v. Sutphen, 
 8 Gil. 547; Lounsbury r. Purdy, 16 Barb. 380; Runnells v. Jackson, 1 
 How. (:\nss.) 3r)S; Ilarrisburg Bank v. Tyler, 3 Watts & S. 373; Morey 
 V. Ilerrick, 18 Penn. St. 123; Smith v. Sackett, 5 Gilm. 534; Kelly v. 
 Johnson, 28 Mo. 249; Botsford v. Burr, 2 Johns. Ch. 405; Getman v. 
 Getman, 1 Barb. Ch. 499; Wright i\ King, Harr. Ch. 12; Bernard v. Bon- 
 gard, Harr. Ch. 130; Dudley v. Batchelder, 53 Me. 403; Russell v. Allen, 
 10 Paige, 249 ; Kirkpatrick /'. McDonald, 1 Jones, 393 ; Smith v. Burn- 
 ham, 3 Sumner, 435; White v. Sheldon, 4 Nev. 280; Kendall v. 
 Mann, 11 Allen, 15. 
 
 G Bartlett v. Pickersgill, 1 Eden, 516; Crop y. Norton, 9 Mod. 235; 
 White V. Carpenter, 2 Paige, 217 ; Henderson v. Hoke, 1 Dev. & Bat. Ch. 
 119 ; Dudley v. Batchelder, 53 Maine, 403 ; Gibson v. Toole, 40 3Miss.788; 
 Whaloy v. Whaley, 71 Ala. 102 ; Harvey v. Pennybacker, 4 Del. Ch. 445; 
 Boehl V. Wadgymar, 54 Tex. 589. 
 
 VOL. 1.-12 177
 
 § 134.] RESULTING TEUSTS. [CHAP. V. 
 
 one should advance the purchase-money and take the title to 
 himself, l)ut should do this wholly upon the account and 
 credit of the other, he would hold the estate upon a resulting 
 trust for the other. ^ And if partly on the account and 
 credit of another, he would hold as trustee joro tcmto."^ 
 
 § 134. A trust results from the acts, and not from the 
 agreements, of the parties, or rather from the acts accom- 
 panied by the agreements ; hut no trust can be set up by 
 mere parol agreements, or, as has been said, no trust results 
 merely from the breach of a parol contract ; as if one agrees 
 to purchase land and give another an interest in it, and he 
 purchases and pays his own money, and takes the title in 
 his own name, no trust can result. ^ And so if a party 
 
 1 Aveling v. Knipe, 19 Ves. 441 ; Page v. Page, 8 N. H. 187 ; Runnells v. 
 Jackson, 1 How. (Miss.) 358; Lounsbury v. Purdy, IS N. Y. 515 ; 16 Barb. 
 380; Buck v. Pike, 2 Fairf. 9; Moray v. Herrick, 18Penn. St. 123; Stucky 
 V. Stucky, 30 id. 546; Kelly v. Johnson, 28 Mo. 219; Cutler v. Tuttle, 19 
 N. J. Eq. 562; Dryden v. Ilanaway, 3 ]\Id. 254; Fleming v. Mcliale, 47 
 111. 282 ; Honore v. Hutchins, 8 Bush, 687; Bates v. Kelley, 80 Ala. 142; 
 Ward V. Matthews, 73 Cal. 13; Caruthers y. Williams, 21 Fla. 485; Green 
 V. Dietrich, 114 111. 636; Bradley v. Luce, 99 111. 234. As where the 
 leader takes the title merely as security for his advance. Wright v. 
 Gay, 101 111. 233 ; Powell v. Powell, 114 111. 329. See also Weekly v. 
 Ellis, 30 Kans. 507 ; Tenny v. Simpson, 37 Kans. 353 ; Wiggin v. Wiggin, 
 58 N. H. 235. 
 
 2 Marvin v. Brooks, 94 K Y. 71 ; Leggett v. Leggett, 88 N. C. 108; 
 Brown v. Cave, 23 S. C. 251; Mims v. Chandler, 21 S. C. 480; Cook v. 
 Sherman. 4 McCrary, 20. 
 
 8 Kisler v. Kisler,2 Watts, 323 ; Williard v. Williard, 56 Pa. St. 119 ; 
 Loomis V. Loomis, 60 Barb. 22; Stover v. Flack, 41 Barb. 162; Thorner 
 V. Thorner, 18 Ind. 462; Rogers i>. Simmons, 55 111. 66; Loomis v. Loomis, 
 28 111. 454; Green v. Cook, 2 111. 196 ; Duffy v. Masterson, 44 N. Y. 557; 
 Whetham v. Clyde, 1 Pa. Leg. Gaz. R. 55. But see Hidden v. Jordan, 
 21 Cal. 92; Green v. Drummond, 3 Md. 71; Meason v. Kaine, 63 Peiin. 
 St. 335; Smith r. Hollenback, 53 111. 223; Lantry v. Lantry, 51 111. 451; 
 Robinson v. Robinson, 45 Ark. 481 ; Hunt v. Freedman, 63 Cal. 510 ; see 
 § 209. Ward v. Spivey, 18 Fla. 847 ; Follett v. Badeau, 26 Hun, 253 ; 
 Lawrence v. Lawrence, 14 Oregon, 77. A trust resulting from the acts 
 of the parties will not be converted into an express trust by the agree- 
 ment of the parties ; that is, it will not be any the less a resulting trust, 
 and it will not be within the statute of frauds. Cotton v. Wood, 25 
 Iowa, 43. 
 
 178
 
 CHAP, v.] PAROL PROOF. [§ 135. 
 
 makes no payment, and none is made on his account, either 
 actually or constructively, he cannot claim a resulting 
 trust.' As where a father made a deed to a son-in-law, in 
 consideration of love and affection for his daughter, no trust 
 resulted. 2 And so a mere parol declaration by one that he 
 is buying land for another is not sufficient to establish a 
 resulting trust; there must be some proof of an actual or 
 constructive payment by the person claiming such a trust. ^ 
 The rule is otherwise if the promise led the plaintiff to take 
 action he would not otherwise have taken. Then the breach 
 of the promise becomes a fraud, and a trust may exist.* 
 
 § 135. Again, parol proof cannot be received to establish 
 a resulting trust in lands purchased by an agent and paid for 
 by his own funds, no money of the principal being used for 
 the payment; for the relation of principal and agent depends 
 upon the agreement existing between them, and the trust in 
 such a case must arise from the agreement, and not from the 
 transaction, and where a trust arises from an agreement, it 
 is within the statute of frauds, and must he in writing.^ 
 
 ^ Jackson v. Ringland, 4 Watts & S. 149 ; Botsford v. Burr, 2 Johns. 
 Ch. 408; Lathrop v. Hoyt, 7 Barb. 60; Dorsey i-. Clark, 4 liar. & J. 551; 
 Smith V. Smith, 3 Casey, ISO; Fischili v. Dumaresly, 3 Marsh. 23; Sharp 
 V. Long, 4 Casey, 434 ; Thompson v. Branch, INIeigs, 390 ; Walker v. Brun- 
 gard, 13 S. & M. 723; Ensley i'. Ballentiue, 4 Humph. 233; Lynn v. Lynn, 
 5 Gil. 602 ; Sample v. Coulson, 9 Watts & S. 62 ; Peebles v. Reading, 
 8 Ser. & R. 484. 
 
 2 Thompson v. Thompson, 18 Ohio St. 73. 
 
 8 Ibid. ; Kisler v. Kisler, 2 Watts, 323 ; Williard v. Williard, 56 Penn. 
 St. 119. 
 
 * See § 171 et seq. 
 
 5 Kennedy v. Keating, 34 Mo. 25 ; Woodhull v. Osborne, 2 Edw. Ch. 
 615; Lathrop v. Hoyt, 7 Barb. 60; 2 Story, Eq. Jur. § 1201 a; Bartlett v. 
 PickersgiU, 1 Eden, 515; 4 Burr. 22; 1 Cox, 15; 4 East, 577; Rastel v. 
 Hutchinson, 1 Dick. 44; Lamas v. Bayly, 2 Vern. 627; Atkins v. Rowe, 
 Mose. 39; O'llara v. O'Neil, 2 Bro. P. C. 39; Jackman v. Ringland, 
 4 Watts & S. 149; Peebles v. Reading, 8 Ser. & R. 492; Pinnock v. 
 Clougli, 16 \t. 507; Flagg v. Mann, 2 Sum. 546; Walker r. Brungard, 
 13 Sm. & M. 7G5; Taliaferro v. Taliaferro, 6 Ala. 406; Moore v. Green, 
 
 3 r>. ]\Ion. 407; Fowke v. Slaughter, 3 A. K. Marsh. 57; Dorsey r. Clarke, 
 
 4 liar. & J. 551; Pearson v. East, 36 Ind. 28; Minot v. Mitchell, 30 lud. 
 
 179
 
 § 136.] RESULTING TRUSTS. [CIIAP. V. 
 
 This rule is so inflexible, that though the agent may be 
 indicted, and convicted of perjury in denying his character 
 as agent in his answer under oath, the court cannot decree 
 and establish the trust. ^ But if an agent invest his princi- 
 pal's money in real estate without his knowledge, or if, 
 investing the money with his knowledge, he take the deed 
 in his own name without his consent, or take a deed in a 
 form contrary to the understanding, there will be a resulting 
 trust. ^ (a) But if one standing in no fiduciary relation 
 obtains another's property wrongfully, and invests it in 
 land in his own name, or if a clerk appropriates his master's 
 money and buys real estate in his own name, there is no 
 resulting trust. ^ 
 
 § 136. In England, if two persons join in a purchase and 
 contribute equally, and take the title in their own names, 
 there is no reason to presume a resulting trust, and the two 
 are joint tenants, the survivor taking the whole jure 
 accreseendi.'^ And so if two contract for a purchase to them 
 
 228 ; Arnold v. Cord, 16 Ind. 177; Graves v. Ward, 2 Duv. 301 ; Heacock 
 V. Coatesworth, Clarke, 84; Burden v. Sheridan, 36 Iowa, 12.5; Nestal v. 
 Schmid, 29 N. J. Eq. 460. But -where an attorney purchased property 
 sold upon an execution in favor of his client at a grossly inadequate 
 price, it was held that he was a trustee for his principal. Howell v. 
 Baker, 4 Johns. Ch. 118. See Wade v. Pettibone, 11 Ohio, 57 ; 14 Ohio, 
 557. 
 
 ^ Bartlett v. Pickersgill, 1 Eden, 515 ; King v. Boston, 4 East, 572. 
 
 2 Day V. Roth, 18 N. Y. 448; Bridenbecker v. Lowell, 32 Barb. 9; 
 Pugh r. Pugh, 9 Ind. 132; Rothwell v. Dewees, 2 Black, 613; Bruce v. 
 Ronly, 18 111. 67 ; Follansbe v. Kilbreth, 17 111. 522 ; Squire's App., 70 
 Penu. St. 268 ; Seichrist's App., 66 id. 237. So if he take the deed in his 
 wife's name, a knowledge by the principal that the deed is so made will 
 not affect the trust. Bostleman v. Bostleman and Wife, 24 N. J. Eq. 103. 
 
 2 Ensley v. Ballentine, 4 Humph. 233 ; Campbell v. Drake, 4 Ired. Eq. 
 94. But where A. embezzled B.'s money and invested it in stock in the 
 name of C, a mere volunteer, a resulting trust was enforced against C. in 
 favor of B. Bank of America v. Pollock, 4 Edw. Ch. 415; and see Pas- 
 ooag Bank v. Hunt, 3 Edw. 215 ; ante, § 128. See also Newton v. Porter, 
 5 Lans. 417. 
 
 * Robinson v. Preston, 4 K. & J. 505 ; Bone v. Pollard, 24 Beav. 288 ; 
 
 (a) See infra, § 206, note (a). 
 180
 
 CHAP, v.] I'AKOL PliOOF. [§ 137. 
 
 and their heirs, paying equal proportions, and one dies, the 
 court will order a specific performance by a conveyance to 
 the survivor alone. ^ But the court lays hold of every cir- 
 cumstance to defeat the joint tenancy and convert it into a 
 tenancy in common. ^ Thus, where two tenants in common 
 of a joint mortgage term purchase the equity of redemption, ^ 
 or several engage in a joint undertaking, or partnership, or 
 trade, or speculation,* or several purchase an estate and pay 
 cfpially, but one improves the estate at his own cost,^ equity 
 will construe them to be tenants in common and not joint 
 tenants. In this country, title by joint tenancy is very 
 much reduced in extent, and the incident of survivorship is 
 almost entirely destroyed by statutes, except in the case of 
 trustees, executors, and others, in whom such a tenancy is 
 necessary for the execution of their trusts.^ 
 
 § 137. The transaction out of which a trust results may be 
 proved by parol. '^ The statute of frauds extends to and 
 
 Moyse v. Gyles, 2 Yern. 385; Hayes v. Kingdome, 1 Vern. 33; York v. 
 Eaton, 2 Freem. 23; Aveling v. Knipe, 19 Yes. 441 ; Rigden v. Yallier, 
 3 Atk. 735; Lake v. Gibson, 1 Eq. Cas, Ab. 291; Anon., Garth. 15; Rea 
 V. Williams, Sugd. Y. & P. (14th ed.) p. [697]; Thicknesse v. Yernon, 
 2 Freera. 84, 
 
 ^ Aveling v. Knipe, 19 Yes. 441. 
 
 2 Robinson v. Preston, 4 K. & J. 505; Tompkins v. Mitchell, 2 Rand. 
 428 ; Brothers v. Porter, 6 B. I\Ion. 100 ; Barribeau v. Brant, 17 How. 43. 
 
 8 Edwards v. Fashion, Pr. Ch. 332; Morly v. Bird, 3 Yes. 631; Rigden 
 V. Yallier, 3 Atk. 734 ; Yickers c. Cowell, 1 Beav. 629 ; Partridge v. Paw- 
 lett, 1 Atk. 467; Anon., Carth. 16; Petty r. Styward, 1 Ch. R. 57; Ran- 
 dall r. Phillips, 3 Mason, 378. 
 
 4 Lake v. Gibson, 1 Eq. Cas. Ab. 290 ; 3 P. Wms. 158 ; York v. Eaton, 
 2 Freem. 23 ; Jackson v. Jackson, 9 Yes. 597, n. ; Lyster v. Dolland, 1 Yes. 
 Jr. 434; Jeffreys v. Small, 1 Yern. 217; Caines v. Grant, 5 Binn. 119; 
 Duncan v. Forrer, 6 Binn. 193; Sigourney v. Munn, 7 Conn. 11 ; Overton 
 V. Lacy, 6 Monroe, 13; Deloney v. Hutcheson, 2 Rand. 1S3 ; Cuyler t*. 
 Bradt, 2 Caines' Cas. 326 ; Pugh v. Currie, 5 Ala. 440 ; ]\IcAllister v. :\Iont- 
 gomen,', 3 Hayw. 94; Farley v. Shippen, "Wythe, 135. See Appleton v. 
 Boyd, 7 Mass. 131; Kmsley r. Abbott, 19 Maine, 430. 
 
 8 Lake v. Gibson, 1 Eq. Cas. 291. 
 
 e See 4 Kent Com. 390 (11th ed.). 
 
 ' Livermore v. Aldrich, 5 Cush. 435; Boyd v. ^McLean, 1 Johns. Ch. 
 
 181
 
 § 137.] RESULTING TRUSTS. [CHAP. V. 
 
 embraces only trusts created or declared by the parties, and 
 does not affect trusts arising Ijy operation of law. ^ (a) In- 
 deed, such trusts are specially excepted in the statute of 
 frauds of most States. The exception, however, was omitted 
 in the statute of Rhode Island ; but Mr. Justice Story held 
 that the omission was immaterial, as such trusts were 
 excepted in the nature of things. ^ It follows that a party 
 setting up a resulting trust may prove by parol the agree- 
 ments under which the estate was purchased, and he may 
 prove by parol the actual payment of the purchase-money by 
 himself, or in his behalf, although the deed states it to have 
 been paid by the grantee in the conveyance.^ (b) And 
 
 582 ; Yerplank v. Caines, id. 57 ; Botsford v. Burr, 2 id. 405 ; Ch. 57 ; 
 Page V. Page, 8 N. H. 187; Scoby v. Blanchard, 3 N. H. 170 ; Pritchard 
 V. Brown, 4 IST. H. 397; Gardner Bank v. Wheaton, 8 Greenl. 373; Powell 
 r. Mouson & Brim. Manuf. Co., 3 Mason, 347; Elliott v. Armstrong, 
 8 Blackf. 199; Jennison v. Graves, id. 441 ; Blair v. Bass, 4 id. 550 ; Snel- 
 ling V. Utterback, 1 Bibb, 609 ; Foote v. Bryant, 47 N. Y. 544 ; McGinity 
 V. McGinity, 6 Penn. St. 38; Peiffer r. Lytle, 58 id. 386; Nixon's App., 
 63 id. 277; Byers v. AVackman, 16 Ohio, 80, 440; Paris v. Dunn, 7 Bush, 
 276; Caldwell v. Caldwell, 7 Bush, 515; Morgan v. Clayton, 61 111. 35; 
 Knox V. IMcFarran, 4 Col. 58'3 ; Learned v. Tritch, 6 Col. 432. Otherwise 
 ill Michigan. Groesbeck v. Seeley, 13 Mich. 329 ; and see Barbin v. Gas- 
 ford, 15 La. An. 539. 
 
 1 Ibid. ; Ross v. Hegeman, 2 Edw. Ch. 373 ; Larkin v. Rhodes, 5 Por- 
 ter, 196; Enos v. Hunter, 4 Gil. 211 ; Smith v. Sackett, 5 Gilm. 544; 
 Foote V. Bryant, 47 N. Y. 544 ; Black v. Black, 4 Pick. 238 ; Bryant r. 
 Hendricks, 5 Iowa, 256 ; Judd r. Haseley, 22 Iowa, 428 ; Ward v. Arm- 
 strong, 84 111. 151 ; Gale v. Harby, 20 Fla. 171. 
 
 2 Hoxie V. Carr, 1 Sum. 187. 
 
 8 De Peyster v. Gould, 2 Green, Ch. 474 ; Dismukes v. Terry, Walk. 
 197; Peabody v. Tarbell, 2 Cush. 232; Barron v. Barron, 24 Vt. 375; 
 Smith V. Burnham, 3 Sum. 438 ; Malin v. Malin, 1 Wend. 626 ; Harder r. 
 Harder, 2 Sandf. Ch. 17; Peirce v. McKeehan, 3 Barr, 136; Lloyd v. Car- 
 ter, 17 Pa. St. 216 ; Peebles v. Reading, 8 Serg. & R. 484 ; Millard v. 
 Hathaway, 27 Cal. 119; Lyford ;;. Thurston, 16 N. H. 399 ; Bayles v. Bax- 
 ter, 22 Cal. 575; Cooper v. Skeele, 14 Iowa, 578. In Kirk v. Webb, Pr. 
 Ch. 84, the court refused to admit parol evidence to control the recitals of 
 
 (a) This applies to that clause be performed within a year. Rayl 
 of the statute which prohibits suits i-. Rayl, 58 Kansas, 585. 
 upon unwritten agreements not to (b) Boyd v. Boyd, 163 111. 611; 
 
 Bancroft v. Russell, 157 Mass. 47. 
 182
 
 CHAP, v.] PAROL PROOF. [§ 1.37. 
 
 although the holder of the legal title has fraudulently or by 
 mistake made a declaration that he holds the jtroperty for 
 some other person,' or states it to be for the use of the 
 grantor, 2 and although the trust, and all the circumstances 
 out of which it arises, may be denied under oath in the 
 answer, yet the facts may all be proved by parol in opposi- 
 tion to the answer.^ In such case the trust must be clearly 
 alleged in the bill, not only in terms, Init all the facts must 
 be set out from which the trust is claimed to result.* Gen- 
 eral vague statements of a testator that the land he owned 
 was the " security or property held in trust by him for the 
 payment of the trust fund," will not be sufficient to impress 
 a trust on the property in the absence of clear evidence that 
 trust funds were used in the purchase of the land.^ The 
 
 the deed as to the payment of the consideration, and this decision was 
 followed in Heron v. Heron, Pr. Ch. 163 ; Freera. 248; Skitt v. Wliitmore, 
 Freein. 280; Kinder v. Miller, Pr. Ch. 172 ; Xewton v. Preston, id. 103; 
 Hooper V. Eyles, 2 Vern. 480; Cox v. Bateman, 2 Ves. 19; Ambrose v. 
 Ambrose, 1 P. Wms. 321 ; Deg v. Deg, 2 id. 414; but the rule has been 
 changed, and the doctrine stated in the text is now established beyond 
 controversy. Bartlett v. Pickersgill, 1 Eden, 515; Lench v. Lench, 10 
 Ves. 517; Groves v. Groves, 3 Y. & J. 163. See 2 Story, Eq. Jur. § 1201, 
 and notes; Livermore v. Aldrich, 5 Cush. 435; Connor v. Follansbee, 59 
 N. H. 125. 
 
 ^ Hanson v. First Presbyterian Church, 1 Stock. 441. 
 
 2 Cotton V. Wood, 25 Iowa, 43. 
 
 « Cooth V. Jackson, 6 Ves. 39; Buck v. Pike, 2 Fairf. 24; Baker v. 
 Vining. 30 Me. 121; Page r. Page, 8 N. H. 187; :\Ioore v. ^loore, 38 
 N. H. 3S2; Boyd v. I\IcLean, 1 Johns. Ch. 582; Botsford v. Burr, 2 
 id. 405; Swinburne v. Swinburne, 28 N. Y. 568; Snelling v. Utterback, 
 1 Bibb, 609; Lloyd v. Lynch, 28 Pa. St. 419; Letcher v. Letcher, 
 4 J. J. Marsh. 590; Miller v. Stokely, 5 Ohio St. 194; Elliott v. Arm- 
 strong, 2 Blackf. 198; Jenison v. Graves, id. 440; Blair v. Bass, 4 id. 
 540; Larkiiis v. Rhodes, 5 Porter, 196; Farringer v. Ramsey, 2 Md. 305 ; 
 Greor r. Baugliman, 13 Md. 2.37; Ensley c Ballentine, 4 Humph. 233; 
 Paine c. Wilcox, 16 Wis. 202; Olive r. Dougherty, 3 Iowa, 371; Van- 
 dever r. Freeman, 2C Tex. 333 ; Pugh r. Bell, 1 J. J. Marsh. 399. 
 
 * Rowell V. Freese, 23 Maine, 182 ; Hickey i'. Young, 1 J. J. Marsh. 1 • 
 Gascoigne v. Thvving, 1 Vern. 306 ; Rider c. Kidder, 10 Ves. 364 ; Groves 
 t'. (Jroves, 3 Y. & J. 163; Ilalcott r. Morkant, Pr. Ch. 108; Goodright v. 
 Hodges, 1 Watk. Corp. 229 ; Willis v. Willis, 2 Atk. 71. 
 
 6 Cuming v. Robins, 39 N. J. Eq. 40. 
 
 183
 
 § 137.] RESULTING TRUSTS. [CHAP. V. 
 
 facts in all cases must be proved with great clearness and 
 certainty/ especially when the claim depends upon mere 
 statements ; ^ and facts that only base a conjecture that the 
 conditions of a resulting trust existed, are insufficient. ^(a) 
 
 * Cuming v. Robins, 39 N. J. Eq. 46 ; Slocumb v. Marshall, 2 Wash. 
 C. C. 397 ; Newton v. Preston, Pr. Ch. 103 ; Wright v. King, Harr. Ch. 
 12; Enos v. Hunter, 4 Gilm. 211; Carey v. Callau, 6 B. Mon. 44; O'Hara 
 r. O'Xeil, 2 Eq. Cas. Ab. 475; Cottingtou v. Fletcher, 2 Atk. 155; Am- 
 brose V. Ambrose, 1 P. Wms. 321; Ilyden v. Ilydeu, 6 Baxter (Tenn.), 
 406; Thomas v. Sandford, 49 Md. 181; Johnson v. Richardson, 44 Ark. 
 365; Harvey v. Pennybacker, 4 Del. Ch. 445; Green v. Dietrich, 114 111. 
 636; Witts v. Homey, 59 Md. 584; Philpot v. Penn., 91 Mo. 38; Rogers 
 V. Rogers, 87 Mo. 257 ; Shaw v. Shaw, 8G Mo. 594 ; Modrell v. Riddle, 82 
 Mo. 31 ; Parker v. Snyder, 31 N. J. Eq. 164 ; Brickell v. Earley, 115 
 Penn. St. 473. As to what facts are competent and necessary to be 
 proved, see Hunter v. Marlboro', 2 Wood. & M. 168 ; Morey v. Herrick, 
 18 Penn. St. 128 ; Blyholder v. Gibson, 18 Pa. St. 134 ; Farringer v. 
 Ramsey, 4 Md. Ch. 33; Malin v. Malin, 1 Wend. 626; Harder v. Harder, 
 1 Sandf. 17; Snelling v. Utterback, 1 Bibb, 609; Freeman i\ Kelly, 1 
 Hoff. 90; Baker v. Vining, 30 Me. 128; Clarke y. Quackenboss, 27 111. 
 260 ; Nelson v. Warrall, 20 Iowa, 409 ; White v. Weldon, 4 Nev. 280 ; 
 Stall V. Cincinnati, 16 Ohio St. 169; Browne v. Stamp, 21 Md. 328; 
 Holder v. Nunnelly, 2 Cold. 288 ; Childs v. Gramold, 19 Iowa, 362 ; 
 Cutler V. Tuttle, 19 N. J. Eq. 560; Parmlee v. Sloan, 37 Ind. 469; Phelps 
 V. Seeley, 22 Grat. 573; Shepard v. Pratt, 32 Iowa, 296. 
 
 2 Heneke v. Floring, 114 111. 554 ; McKeown i\ McKeown, 33 N. J. 
 Eq. 384. 
 
 8 Railsback v. Williamson, 88 III. 497. 
 
 (rt) The evidence to establish a Jackson, 135 Ind. 136; Pillars v. 
 
 resulting trust in such cases, es- McConnell, 141 Ind. 670; Logan v. 
 
 pecially when the trust arises ex Johnson, 72 Miss. 185 ; Gaines v. 
 
 ?«a/e^c/o, must be clear, unequivocal, Drakeford, 51 S. C. 37; Rogers u. 
 
 and convincing; the burden of proof Rogers, 87 Mo. 2.57; Reed v. 
 
 is upon the person seeking to estab- Painter, 129 Mo. 674 ; Roche v. 
 
 lish the trust ; and the presumption George, 93 Ky. 609; Parker v. 
 
 is strong in favor of the legal title Logan, 82 Va. 376 ; Snider v. John- 
 
 and possession. Ilowland v. Blake, son, 25 Oregon, 328; Sherman v. 
 
 97 U. S. 624 ; Brickell v. Earley, San dell, 106 Cal. 373 ; Woodside v. 
 
 115 Penn. St. 473 ; Martin i-. Baird, Hewel, 109 Cal. 481; Mullen v. 
 
 175 id. 540; Francis v. Roades, 146 :McKim, 22 Col. 468; Marshall v. 
 
 111. 635; McGinnis r. Jacobs, 147 Fleming (Col.), 53 Pac. 620; Speu- 
 
 111. 24 ; Jacksonville Nat. Bank v. car v. Terrel, 17 Wash. 514 ; Cham- 
 
 Beesley, 1.59 111. 120; Myers v. bers u. Emery, 13 Utah, 374. This 
 184
 
 CHAP, v.] PAROL PROOF. [§ 138. 
 
 The certainty required, however, is only such as is sufficient 
 to satisfy the jury of the existence of the trust; and it is 
 error to charge that the "clearest and most positive proof" 
 must be given. ^ For this purpose all competent evidence is 
 admissible, as the admissions of the nominal purchaser and 
 grantee in the deed, recitals in the deed and other proper 
 documents, and even circumstantial evidence, as that the 
 means of the nominal purchaser were so limited that it was 
 impossil)le for him to pay the purchase-money.^ (a) But 
 loose and equivocal facts ought not to control the evidence 
 of deeds; and two witnesses, or one witness with corroborat- 
 ing circumstances, are required to control an answer under 
 oath. And proof of mere admissions of one that he pur- 
 chased for another, without proof of some previous arrange- 
 ment or advance of money by such other, is insufficient to 
 create a resulting trust.^ (b) 
 
 § 138. It has been stated by some writers that after the 
 death of the sujyj^osed nominal purchaser, parol proof alone 
 
 1 Neyland i: Bendy, 69 Tex. 711. 
 
 2 Wniis r. Willis, 2 Atk. 71 ; Wilkins v. Stevens, 1 Y. & C Ch. 431 ; 
 Lench v. Lench, 10 Ves. 518; Benger v. Drew, 1 P. Wms. 780; Strinipfler 
 V. Roberts, 18Penn. St. 283 ; Farrell v. Lloyd, 69 id. 239; Baumgartner v. 
 Guessfeld, 38 Mo. 36 ; Brown v. Tetney, 3 111. 468 ; Sayre r. Frederick, 
 16 N. J. Eq. 205 ; Gascoigne r. Thwing, 30 N. J. L. 306 ; Graves v. 
 Graves, 3 Y. & J. 170 ; INIitchell r. O'Neil, 4 Nev. 504. 
 
 8 Sidle V. Walter, 5 Watts, 389; and see Sample v. Coulson, 9 W. & 
 S. 62. The admission of a trustee that he purchased certain property 
 with the trust fund is competent evidence to raise a resulting trust for 
 the cestui que irunt in that property. Harrisburg Bank v. Tyler, 3 Watts 
 & S. 373. 
 
 is analogous to the general rule in lished even after the lajise of many 
 
 equity that an instrument will not years, and by oral evidence, though 
 
 be reformed on the ground of mis- denied by an answer in chancery. 
 
 take, except upon full, clear, and Cooksey i*. Bryan, 2 App. D. C. 
 
 decisive proof of the mistake. Loud 557; Condit v. Maxwell, 142 Mo. 
 
 V. Barnes, 154 Mass. 344 ; Richard- 206. 
 
 son V. Adams, 171 Mass. 447. (o) Salisbury c. Clarke, 61 Vt. 453. 
 
 When the evidence showing a result- (h) Springer v. Kroeschell, 101 
 
 ing trust is clear, it may be estab- 111. 358. 
 
 185
 
 § 139.] RESULTING TRUSTS, [CHAP. V. 
 
 could not be admitted to control the express declaration of 
 the deed ; ^ but the cases relied upon are tlie cases before 
 cited to the point that parol proof is inadmissible, both 
 before and after the death of the supposed nominal purchaser. 
 These cases are overruled ; and it would seem upon principle 
 that the death of the nominal purchaser cannot affect the 
 admissibility of parol testimony, whatever effect it may have 
 upon its weight,^ Analogous to this matter is the question 
 whether trust-money can be followed into land by parol 
 evidence ; and it is clearly established that it may, on the 
 ground that a purchase with trust-money is virtually a pur- 
 chase paid for by the cestui que trust, and such a purchase 
 is a trust by operation of law, and not within the statute 
 of frauds.^ And if a trustee pay for property out of the 
 trust fund, and take the deed in the name of another, 
 the trust results to the cestui que trust, and not to the 
 trustee.^ 
 
 § 139. It follows that as a resulting trust may be shown 
 by parol proof, as a presumption of law arising out of the 
 transaction, so the presumption may be rebutted by parol 
 proof showing that no trust was intended by the parties at 
 the time of the transaction,^ and that it was the intention to 
 confer the beneficial interest upon the supposed nominal pur- 
 chaser. As the resulting trust is mere matter of equitable 
 
 ^ Sanders on Uses and Trusts, 259; note to Lloyd v. Spillett, 2 Atk. 
 150 ; Roberts on Statute of Frauds, 99. 
 
 2 Lewin on Trusts, 138 (5th Lend, ed.), 2 Mad. Ch. Pr. 141 ; Sugd. V. 
 & P. 136 (9th ed.) ; Lench v. Lench, 10 Ves. 517; 2 Story, Eq. Jur. 
 § 1201, n. ; Liverraore v. Aldrich, 5 Cush. 435; Unitarian So. v. Wood- 
 bury, 14 Me. 281; De Peyster v. Gould, 2 Green, Ch. 474; Harrisburg 
 Bank v. Tyler, 3 W. & S. 373; Harder v. Harder, 2 Saud. Ch. 17; 
 McCammon v. Petitt, 3 Sneed, 242 ; Fausler v. Jones, 7 Ind. 277 ; Neill 
 V. Keese, 5 Tex. 23 ; Freeman v. Kelly, 1 Hoff. 90 ; Richardson v. Taylor, 
 45 Ark. 472. 
 
 8 Lench v. Lench, 10 Ves. 517 ; Trench v. Harrison, 17 Sim. Ill ; ante, 
 §§ 127, 128. 
 
 * Russell V. Allen, 10 Paige, 249 ; Wynn v. Sharer, 23 Tnd. 573. 
 
 ^ Warren v. Steer, 112 Penn. St. 635 ; declarations made afterwards and 
 not bearing on the intent at the time of purchase cannot affect the title. 
 
 186
 
 CHAP, v.] PAROL PROOF. [§ 140. 
 
 presumption, it may be rebutted by facts that negative the 
 presumj)tion ; and whatever facts appear tending to prove that 
 it was intended that the nominal purchaser should take the 
 beneficial interest as well as the legal title, negatives the pre- 
 sumption.^ The presumption may be negatived as to part of 
 the estate, and prevail in part.'^ The presum])tion, however, 
 is in favor of the trust resulting to the party paying the con- 
 sideration, and the burden of proof is upon the mere nominal 
 purchaser to show that he was intended to have some bene- 
 ficial interest.^ The burden of proof on the whole case, how- 
 ever, rests on the one who seeks to establish a resulting trust, 
 to show by clear evidence the necessary facts.* 
 
 § 140. And when a clear understanding is had at the time 
 the purchase is made, the money paid, and the deed taken, 
 by which understanding the nominal purchaser was to have 
 both the legal and the beneficial interest, it is incompetent for 
 the person who paid the purchase-money to put a different 
 construction upon the transaction at a subsequent time, and 
 claim a resulting trust in the estate contrary to the uudcr- 
 
 1 Rider 1'. Kidder, 10 Ves. 361; Benbow v. Townsend, 1 :\I. & K. 508; 
 Goodrijzht v. Hodges, 1 Watk. Cop. 227 ; Lofft. 230; Ruudle v. Rundle, 2 
 Vern. 252; Taylor v. Taylor, 1 Atk. 386; Rediugton v. Redington, 3 
 Ridg. 106 ; Beecher v. Major, 2 Drew. & Sm. 431 ; Garrick v. Taylor, 29 
 Beav. 79; 4 De G., F. & J. 159; Bellasis v. Compton, 2 Vern. 294 ; Mad- 
 dison V. Andrew, 1 Ves. 58 ; Bake v. Vining, 30 ]\Iaine, 120 ; Page v. Page, 
 8 N. H. 189 ; Botsford v. Burr, 2 Johns. Ch. 405 ; Steers v. Steere, 5 id. 
 18; White «;. Carpenter, 2 Paige, 217; Jackson v. Feller, 2 Wend. 465; 
 Creed v. Lancaster Bank, 1 Ohio St. 1; Sewell v. Baxter, 2 Md. Ch. 448; 
 Hays V. Hollis, 8 Gill, 369 ; McGuire v. ISIcGowen, 4 Des. 487 ; Elliott v. 
 Armstrong, 2 Blackf. 199 ; Philips v. Crammond, 2 Wash. C. C. 441 ; 
 Myers v. Myers, 1 Casey, 100; Squire v. Harder, 1 Paige, 494; Ledge 
 V. Morse, 16 Johns. 199 ; Smith v. Howell, 3 Stockt. 122 ; Bayles v. Bax- 
 ter, 22 Cal. 375 ; McCue v. Gallagher, 23 Cal. 51 ; Byers v. Danley, 27 
 Ark. 77; Hays v. Quay, 68 Penn. St. 263; Murphy v. Peabody, 63 Ga. 
 522 ; Kelsey v. Snyder, 118 111. 544. 
 
 2 Benbow v. Townsend, 1 M. & K. 506 ; Rider v. Kidder, 10 Ves. 360 ; 
 Lane v. Dighton, Amb. 409; Pinney v. Fellows, 15 Vt. 525. 
 
 3 Dudley V. Bosworth, 10 Humph. 12; 2 Sugd. V. & P. 139 (9th ed.). 
 * Philpot V. Penn, 91 Mo. 44; Jackson v. Wood, 88 Mo. 76; Johnson 
 
 V. Quarles, 46 :\Io. 423. 
 
 187
 
 § 141.] RESULTING TEUSTS. [CIIAP. V. 
 
 standing and intention at the time.^ And if the nominal pur- 
 chaser, under such circumstances, should afterwards agree to 
 hold in trust for, or to execute a conveyance to the person who 
 paid the money, courts would not enforce the agreement, if it 
 was without a new consideration or voluntary.^ So if the 
 trust is declared in writing at the time of the transaction 
 there can be no resulting trust, as the one precludes the 
 other; 3 or if the nominal purchaser stipulates for something 
 out of the transaction inconsistent with the trust.* 
 
 § 141. Courts will not enforce a resulting trust after a 
 great lapse of time,^ or laclies on the part of the supposed 
 cestui que trust, especially when it appears that the supposed 
 nominal purchaser has occupied and enjoyed the estate.^ But 
 if the trust is admitted, and there has been no adverse holding, 
 lapse of time is no bai-,'^ and laches will not be allowed to 
 avail as a defence, where fraud has been practised on the 
 cestui to keep her in ignorance of her rights until just before 
 filing the bill. Any excuse for delay that takes hold of the 
 
 1 Groves v. Groves, 3 Y. & J. 172 ; Hunt v. Moore, 6 Cush. 1 ; White 
 r. Sheldon, 4 Nev. 280 ; Robles v. Clarke, 25 Cal. 317. 
 
 2 Ibid. 
 
 8 Clark V. Burnham, 2 Story, 1 ; Anstice v. Brown, 6 Paige, 448 ; Leg- 
 gett V. Dubois, 5 Paige, 114.; Alexander v. Warrance, 17 Mo. 230 ; Mercer 
 V. Stark, 1 Sm. & M. 479 ; Dennison v. Goehring, 7 Barr, 175. 
 
 4 Dow V. Jewell, 21 N. H. 470. 
 
 s James v. James, 41 Ai'k. 303 (more than 20 j'ears). 
 
 ® Delane v. Delane, 7 Bro. P. C. 279 ; Clegg v. Edmonson, 8 De G., M. 
 & G. 787; Groves v. Groves, 3 Y. & J. 172; Peebles v. Reading, 8 Ser. & 
 R. 484; Graham v. Donaldson, 5 Watts, 471; Haines v. O'Conner, 10 
 Watts, 315 ; Lewis v. Robinson, id. 338 ; Buckford v. Wade, 17 Ves. 97 ; 
 Robertson v. Macklin, 3 Hayw. 70; Strimpfler v. Roberts, 18 Penu. St. 
 283; Best v. Campbell, 62 id. 478; Douglass v. Lucas, 63 id. 11; Sun- 
 derland V. Sunderland, 19 Iowa, 325 ; Brown v. Guthrie, 27 Texas, 610 ; 
 HaU V. Doran, 13 Iowa, 368; Trafford v. Wilkinson, 3 Tenn. Ch. 701; 
 Newman v. Early, id. 714. And see Miller v. Blose, 30 Grat. 744 ; Jen- 
 nings V. Shacklett, id. 765 ; King v. Purdee, 96 U. S. 90 ; Midmer v. Mid- 
 mer, 26 N. J. Eq. 299 ; Smith v. Patton, 12 W. Va. 541 ; McGivney v. 
 McGivney, 142 Mass. 156, 160. 
 
 ' Dow V. JeweU, 18 N. H. 340. 
 
 188
 
 CHAP, v.] 
 
 STATUTES. 
 
 [§ 142. 
 
 conscience of the chancellor and makes it inequitable to in- 
 terpose the bar is suflicicnt.' 
 
 § 142. The legislature of New York has abolished trusts 
 resulting from the payment of the consideration by one and 
 the taking the title in the name of another, except in cases 
 where the nominal grantee has taken the deed without the 
 knowledge and consent of the party paying the money, or 
 excei)t the purchase is made with another's money in viola- 
 tion of some duty or trust.^ (a) But the statute saves the 
 rights of creditors of the party paying the purchase-money and 
 taking the title in the name of another.^ If such a purchase 
 
 1 Harris v. Mclntyre, 118 111. 275. 
 
 2 Linsley v. Sinclair, 24 Mich. .380. 
 
 8 Rev. Stat. 1859, Part 11. (Vol. III. p. 15), c. 1, art. 6, §§ 52, 53, ,57; 
 Bodine v. Edwards, 10 Paige, 504 ; Brewster v. Power, 10 Paige, 502 ; Wil- 
 link V. Vanderveer, 1 Barb. 599 ; Norton v. Storer, 8 Paige, 222 ; Reid v. 
 Fitch, 11 Barb. 399; Lounsbury v. Purdy, 16 Barb. 370 ; 18 N. Y. 515; 
 Jencks v. Alexander, 11 Paige, 019; Watson r. Le Row, Barb. 481; 
 Russell V. Allen, 10 Paige, 250 ; Siemon v. Schurck, 29 N. Y. 598 ; Swin- 
 
 (a) This statute applies only to 
 secret trusts; it does not apply to an 
 express agreement with the person 
 supplying the consideration that the 
 party taking the title in his own 
 name shall hold it for both of them. 
 Mc Arthur v. Gordon, 120 N. Y. 597; 
 Gage V. Gage, 43 N. Y. S. 810; Bul- 
 lenkamp v. Bullenkamp, 54 id. 
 482. See Woerz v. Rademacher, 
 120 N. Y. 62; Watt v. Watt (Ky.), 
 39 S. W. 48; Pope v. Dapray, 170 
 111. 478,484; Smith v. Mason (Cal), 
 55 Pac. 143 ; Lee v. Tinken, 41 N. 
 Y. S. 979. Sect. 53 of the New 
 York statute, which preserves the 
 right to a resulting trust when the 
 grantee named in a conveyance, 
 " in violation of some trust, shall 
 have purchased the lands so con- 
 veyed with moneys belonging to an- 
 
 other person," does not include the 
 grantee's breach of jiromise to take 
 the deed in the name of another 
 who has furnished the consideration. 
 Schierloh v. Schierloh, 148 N. Y. 103. 
 Under the statutes of New York, 
 when a trust has been created by a 
 third person for a debtor, his cred- 
 itors can reach the surplus income 
 only after providing for the cestui's 
 proper support, but the creditors 
 may resort to the entire reserved 
 interest when the trust is created by 
 the debtor. Schonck r. Barnes, 156 
 N. Y. 316, 321. In tliis State, one 
 who executes an invalid oral trust, 
 by conveying land and receiving tho 
 proceeds, is a trustee of personalty 
 for the cestui que trust, who may by 
 action recover from him such pro- 
 ceeds. Bork V. Martin, 132 N. Y. 280. 
 189
 
 § 142,] EESULTING TRUSTS. [CIIAP. V. 
 
 is a fraud upon creditors, they may enforce the trust in equity, 
 though the original purchaser and payer of the money would 
 have no remedy ; ^ but if the debt is barred by a discliarge in 
 bankruptcy, the creditor's lien is gone.'^ In Kentucky, trusts 
 resultiug from the payment of the money and the purchase 
 in the name of another are abolished, but an action is given 
 for the recovery of the money paid.^ In Massachusetts, the 
 creditors of such a purchaser, taking the title in the name of 
 a third person, may levy their execution upon the land, in 
 the same manner as if the purchaser had taken the title 
 directly to himself.^ And so in New Hampshire.^ The stat- 
 ute of New York has been strictly construed, and therefore 
 if A. makes a purchase, and pays the money, and takes the 
 title in the name of B., upon a parol trust for C, it is not 
 within the statute ; and C. may enforce the trust as against 
 B.^ Statutes similar to the statute of New York have been 
 passed in Michigan "^ and Wisconsin.^ (a) In Louisiana, express 
 
 burne v. Swinburne, 28 N. Y. 5G8; Stover t;. Flock, 21 Barb. 162; Safford 
 V. Hind, 39 Barb. 625; Buffalo R. R. Co. v. Lainpson, 47 Barb. 533; Gil- 
 bert V. Gilbert, 1 Keyes (N. Y.), 159. See the comments of Church, Ch. 
 J., upon this last case, in Foote v. Bryant, 47 N. Y. 561 ; and see Gilbert 
 V. Gilbert, 2 N. Y. Dec. 256 ; Farrell v. Lloyd, 69 Penn. St. 239. 
 
 1 Ibid. ; Jackson v. Forrest, 2 Barb. Ch. 576 ; McCartney v. Bostwick, 
 32 N. Y. 53. 
 
 2 Ocean Xat. Bank v. Alcott, 46 N. Y. 12. 
 
 8 Martin v. Martin, 5 Bush, 47 ; as to the rule in Minnesota, see Dur- 
 pee V. Pavitt, 14 Minn. 424. 
 
 < Gen. Stat. 1860, c. 103, § 1; Stat. 1844, c. 107; Foster v. Durant, 2 
 Gray, 538 ; amending the law as ruled in How v. Bishop, 3 Met. 26 ; 
 Clark V. Chamberlain, 12 Allen, 257. 
 
 * Hutchins v. Heywood, 50 N. H. 591. 
 
 ® Siemon v. Austin, 33 Barb. 9; Siemon v. Schurck, 29 N. Y. 598; 
 Foote V. Bryant, 44 N. Y. 544. 
 
 7 R. S. 1846, c. 63, § 4; Groesbeck v. Seeley, 13 Mich. 329; Fisher v. 
 Fobe.';, 22 :Mich. 454. 
 
 8 R. S. 1858, c. 84, §§ 7-9. 
 
 (a) See Strong v. Gordon, 96 Wis. 219 ; Graham v. Selbie, 8 S. D. 604 ; 
 
 476; Gee v. Thrailkill, 45 Kansas, Haaven v. Iloass, 60 Minn. 313. 
 173; Connolly i;. Keating, 102 Mich. Under the Ala. Code, §1845, 
 
 1; Tiffany v. Tiffany, 110 iSlich. which declares void all parol trusts 
 190
 
 CHAP, v.] STATUTES. [§ ILo. 
 
 trusts have been abolished ; but trusts arising from the nature 
 of transactions, or by implication of law, are still enforced by 
 the courts.^ 
 
 § 143. As before stated, if a purcliascr of an estate pays 
 the consideration-money, and takes the title in the name of 
 a stranger, the presumption is that he intended some benefit 
 for himself, and a resulting ti-ust arises for him ; ^ but if 
 the purchaser take the conveyance in the name of a wife or 
 child or other person, for whom he is under some natural, 
 moral, or legal obligation to provide, the presumption of a 
 resulting trust is rebutted, and the contrary presumption 
 arises, that the purchase and conveyance were intended to be 
 an advancement for the nominal purchaser.^ The transaction 
 will be regarded prima facie as a settlement upon the nominal 
 
 ^ Gaines v. Chow, 2 How. 619; McDonough's Ex'rs v. Murdock, 15 
 How. 367. 
 
 2 Ante, § 126. 
 
 8 Murless v. Franklin, 1 Swanst. 17; Grey v. Grey, 2 Swanst. 597; Finch, 
 340; Dyer v. Dyer, 2 Cox, 93 ; 1 Watk. Cop. 219; Redington v. Reding- 
 ton, 2 Ridg. 176; Elliot v. Elliot, 2 Ch. Cas.231 ; Sidmouth v. Sidraouth, 
 2 Beav. 451; Thomas v. Chicago, 55 111. 403; Graff v. Rohrer, 35 Md. 
 327 ; Christy v. Courtenay, 13 Beav. 96 ; Lainplugh v. Lamplugh, 1 P. 
 Wms. Ill; Goodright v. Hodges, 1 Watk. Cop. 228; Pole v. Pole, 1 Ves. 
 76 ; Woodman v. iMorrell, 2 Freem. 33 ; Finch v. Finch, 15 Ves. 50 ; 
 Mumnia v. Mumma, 2 Vern. 19 ; Skeats v. Skeats, 2 Younge & C. Ch. 9 ; 
 Wait V. Day, 4 Denio, 439; Wilton v. Devine, 20 Barb. 9; Jackson v. 
 INIatsdorf, 11 Johns. 91; Prosfrs r. Mclntire, 5 Barb. 424; Partridge v. 
 Havens, 10 Paige, 678 ; Guthrie v. Gardner, 19 Wend. 414 ; Reid v. Fitch, 
 11 Barb. 399; Page v. Page, 8 N. H. 187; Astreen v. Flanagan, 3 Edw. 
 Ch. 279; Bodine v. Edwards, id. 504 ; Dennison v. Goehring, 7 Barr, 
 182, n. ; Knouff v. Thompson, 16 Penn. St. 357 ; Shaw v. Read, 47 id. 90 ; 
 Fleming v. Donahoe, 5 Ohio, 255; Treraper v. Burton, 18 Ohio, 418; 
 Stanley v. Brannon, 6 Blackf. 103; Whitten v. Whitten, 3 Cush. 194; 
 
 in land, the oral promise of the Ward, 59 Conn. 188; ]\Iaiinix v. 
 
 grantee in an absolute deed of real Purcell, 40 Ohio St. 102; Robertson 
 
 estate to hold it for the grantor's v. Reiitz (Minn.), 74 N. W. 133; 
 
 use, is void, and the trust will not Kelso v. Kelso, 16 lud. App. 615 ; 
 
 be enforced in equity on the ground Gowdy v. Gordon, 122 Ind. 533 ; 
 
 that the grantee's repudiation of Feeney i'. Howard, 79 Cal. 525 ; 
 
 such trust is a fraud. Brock v. Champlin i-. Champlin, 136 111. 309; 
 
 Brock, 90 Ala. 86. See Ward v. Harris v. Daugherty, 74 Texas, 1. 
 
 191
 
 § 143.] RESULTING TRUSTS. [CHAP. V, 
 
 grantee ; and if the payer of the money claims a resulting trust 
 he must rebut this presumption by proper evidence.^ (a) Lord 
 Ch. B. Eyre stated the doctrine thus : " The circumstance 
 of one or more of the nominees being a child or children of 
 the purchaser is held to operate by rebutting the resulting 
 trust ; and it has been determined in so many cases that 
 the nominee being a child shall have such operation, as a cir- 
 cumstance of evidence, that it Avould be disturbing landmarks 
 if we suffered either of these propositions to be called into 
 question; viz., that such circumstance shall rebut the result- 
 ing trust, and that it sliall do so as a circumstance of evidence. 
 It would have been a more simple doctrine if children had 
 been considered as purchasers for valuable consideration. 
 That way of considering it would have shut out all the cir- 
 cumstances of evidence which have found their way into the 
 cases, and would have prevented some very nice distinctions, 
 not very easily understood. Considering it as a circumstance 
 of evidence, there must, of course, be evidence admitted on 
 the other side. Thus the question is resolved into one of intent, 
 which was getting into a very wide sea without very certain 
 guides." - (b) And Lord Nottingham pointed out that the 
 
 Fatheree v. Fletcher, 31 Miss. 265; Welton v. Devine, 20 Barb. 9; Butler 
 V. Ins. Co., 14 Ala. 777; Douglass v. Price, 4 Rich. Eq. 322; Taylor v. 
 James, 4 Des. 9 ; Thompson v. Thompson, 1 Yerg. 97 ; Dudley v. Bos- 
 worth, 10 Humph. 12; Alexander r. Warrance, 2 Bennett, 230 ; Cart- 
 wright V. Wise, 14 111. 417 ; Shepherd ;;. ^^Tiite, 10 Tex. 72 ; Baker v. 
 Leathers, 3 Ind. 557; Hill v. Pine River Bank, 45 N. H. 300; Dickenson 
 V. Davis, 44 N. H. 647 ; Miller v. Blose, 30 Grat. 744 ; Kelly v. Karsner, 
 72 Ala. 106 ; Schuster v. Schuster, 93 Mo. 438 ; Seibold v. Chrisman,75 Mo. 
 308 ; Read v. Huff, 40 N. J. Eq. 229 ; Newman v. Early, 3 Tenn. Ch. 716. 
 
 1 Jackson v. Matsdorf, 11 Johns. 91 ; Shepherd v. White, 10 Texas, 
 72; Proseus JJ. Mclntire, 5 Barb. 425; Butler v. Ins. Co., 14 Ala. 777; 
 Hill V. Pine River Bank, 45 N. H. 300. 
 
 2 Dyer v. Dyer, 2 Cox, 94. AV^here land is purchased with money 
 
 (a) See Walston v. Smith, 70 Vt. ton, 50 N. J. Eq. 500 ; Beeman v. 
 
 19. Beeman, 88 Hun, 14 ; Francis v. 
 
 (J)) A moral consideration, such Wilkinson, 147 111. 370 ; Noe v. 
 
 as love and affection for one's chil- Roll, 134 Ind. 115; Higbee v. Hig- 
 
 dren or relatives, does not establish bee, 123 Mo. 287. 
 a resulting trust. Landon v. Hut- 
 192
 
 CHAP, v.] STATUTES. [§ 144. 
 
 law of resulting trusts, in this respect, was analogous to uses 
 before the statute," for the feoffMieut of a stranger, hcforc the 
 statute, without consideration, raised a use in the feoffor ; 
 but a feoffment by a fatlier to a son, witliout other considera- 
 tion, raised no use by imj)lication in the father, for the con- 
 sideration of blood settled the use in the son, and made it 
 an advancement." ' Where the husband j)urchases land for 
 his wife with his own funds, taking the obligation of the 
 vendor to execute a deed to the wife, the latter, or after her 
 death her children, can enforce a conveyance of the legal title, 
 although the said obligation had been pledged to the vendor 
 by the husband as a security for a loan to himself.^ 
 
 § 144. This rule embraces all persons for whom the pur- 
 chaser is under any obligation, legal or moral, to provide. It 
 embraces daughters as well as sons,^ although a distinction 
 was once attempted, on the ground that it is not so common 
 to settle lands upon daughters as upon sons.* It embraces 
 estates bought in the name of a wife,^ and in the joint names 
 
 of the wife and the deed taken in name of the husband, it is a ques- 
 tion of fact and intention wliether the husband reduced the money to 
 possession before paying it over for the deed. Moulton v. Haley, 57 
 N. H. 184. 
 
 1 Grey v. Grey, 2 Swanst. 598. 
 
 2 Morris v. Hanson, 78 Ala. 230. 
 
 8 Lady Gorge's Case, Cro. Car. 550 ; 2 Swanst. 600 ; Clarke v. Dan- 
 vers, 1 Ch. Cas, 310; Woodman v. Morrell, 2 Freem. 33; Jennings v. 
 Selleck, 1 Vern. 4G7 ; Bedwell v. Froome, 2 Cox, 97 ; Back v. Andrew, 
 2 Yem. 120 ; Baker v. Leathers, 3 Ind. 558 ; Murphy v. Xathans, 46 
 Penn. St. 508; Astreen v. Flanagan, 3 Edw. Ch. 279, was the case of 
 an adopted daughter. 
 
 4 Gilb. Lex. Pra.^t. 272. 
 
 6 Glaister v. Hewer, 8 Ves. 190; Dummer v. Pitcher, 2 M. & K. 262; 
 Kingdom r. Bridges, 2 Vern. 67; Christ's Hosi)ital v. Budgin, id. 683; 
 Back V. Andrew, id. 120; Benger v. Drew, 1 P. Wms. 780; Wallace 
 r. Bowens, 28 Vt. 138; Guthrie v. Gardner, 19 Wend. 414; Welton v. 
 Devine, 20 Barb. 9 ; Garfield v. Ilatmaker, 15 N. Y. 475 ; Jencks v. Alex- 
 ander, 11 Paige, 619 ; Astreen v. Flanagan, 3 Edw. Ch. 279; Kline's App. 
 39 Penn. St. 463; Alexander c. Warrance, 2 Bennett, 230; Drew v. 
 Martin, 32 L. J. Ch. 367 ; GrafE v. Rohrer, 35 Md. 327 ; Johnson v. John- 
 son, 16 Minn. 512; Thomas v. Chicago, 55 111. 403. But if there is no 
 VOL. I. — 13 193
 
 § 144.] RESULTING TRUSTS. [CHAP. V. 
 
 of the wife and the purchaser ;^ also, in the names of the wife 
 and childrcn.2 So, in the names of a son and a stranger, in 
 which case the moiety to the son will be an advancement,^ 
 but the moielv in the name of the stranger will be presumed 
 to be in trust for the purchaser.* And if a grandparent pur- 
 chase in the name of a grandchild, whether the father is or is 
 not dead, it will be presumed to be an advancement, and not 
 a trust ; ^ and so a purchase by a person who has placed him- 
 self in loco parefttis to the nominal grantee will be presumed 
 to be a settlement, and not a trust, for the purchaser.^ And 
 if the nominal grantee is an illegitimate child of the purchaser, 
 the same presumption will arise i"^ or if the nominal grantee 
 be an idiot,^ or a son-in-law.^ But if the nominal grantee be 
 a brother of the purchaser, the law will presume a trust and 
 not an advancement, on the ground that there is no such 
 obligation on one brother to support or provide for another, 
 that the purchase can be presumed to be made for sucli a pur- 
 pose ; ^^ so if one sister pay the money, and take the convey- 
 
 legal marriage, the conveyance will be presumed to be a trust, and not an 
 advancement. Soar v. Foster, 4 K. & J. 152. 
 
 1 Ibid. 
 
 2 Dummer v. Pitcher, 2 M. & K. 262 ; .5 Sim. 35; Kingdom v. Bridges, 
 2 Vern. 67 ; Back v. Andrew, id. 120; Stevens v. Stevens, 78 Maine, 92. 
 
 2 Lamplugh v. Lamplugh, 1 P. Wms. Ill ; Kingdom v. Bridges, 2 
 Vern. 67; RumboU v. Rumboll, 1 Eden, 17. " Ibid. 
 
 5 Ebrand v. Dancer, 2 Ch. Cas. 26 ; Lloyd r. Read, 1 P. Wms. 607 ; 
 Currant v. Jago, 1 Coll. 265, n. (c) ; Tucker v. Burrow, 2 Hem. & M. 
 525; Kilpin r. Kilpin, 1 M. & K. 520. 
 
 ® Ibid. But it is said that such purchase will not be presumed to be 
 an advancement if the conveyance is taken to a remote relative, or to a 
 stranger, although the real purchaser may have placed himself in loco 
 parentis. Tucker r. Burrow, 2 Hem. & M. 515 ; Powys v. Mansfield, 3 
 My. & Cr. 359; Miller i: Blose, 30 Grat. 714. 
 
 7 Beckford v. Beckford, Lofft. 490; Kilpin v. Kilpin, 1 M. & K. 556, 
 Anon., 1 Wal. Jr. 107j Kimmcl v. McRight, 2 Barr, 38 ; Soar v. Foster, 
 4 K. & J. 160. But it is said that this rule will not apply to the illegiti- 
 mate child of a legitimate child. Tucker v. Burrow, 2 Hem. & M. 525. 
 
 8 Cartwright v. Wise, 14 111. 417. 
 
 • Baker v. Leathers, 3 Porter, 558. 
 
 ^' Maddison r. Andrew, 1 Yes. 58; Edwards v. Edwards, 39 Penn. St. 
 369 ; Foster v. Foster, 34 L. J. Ch. 428. 
 194
 
 CHAK v.] PURCHASES IN NAME OF WIFE OR CHILD. [§ 145. 
 
 ance in tlic name of another sister.^ And where the nominal 
 grantee stands in the relation of mother or nepheiu to the real 
 purchaser, no presumption of an advancement or settlement 
 will arise, but it will be presumed to be a trust, unless the 
 purchaser stands in loco parentis to the nominal grantee.^ 
 And if tlie son stands in the relation of solicitor to his mother, 
 a purchase made by her, in his name, will be presumed to be 
 a trust, as the relation of solicitor and client rebuts the pre- 
 sumption of an advancement,^ and so, it is said, the rule does 
 not apply to any purchase made by a mother in the name of 
 a child.* A purchase by a wife in the name of her husband 
 may be shown to be a trust.^ The rule applies to personal as 
 well as real property.^ 
 
 § 145. The general principle is, that a purchase by the 
 parent, in the name of a child, is presumed to be an advance- 
 ment, and not a trust, (a) This presumption is one of fact, 
 
 1 Keaton v. Cobb, 1 Dev. Ch. 439 ; Field v. Lonsdale, 14 Jur. 995; 13 
 Beav. 78. 
 
 2 Currant v. Jago, 1 Coll. C. C. 263; Laraplugh v. Lamplugh, 1 P. 
 Wms. Ill; Taylor v. Alston, 2 Cox, 97; Edwards v. Field, 3 Mad. 237; 
 Jackson v. Feller, 2 Wend. 465. 
 
 8 Garrett v. Wilkinson, 2 De G. & Sm. 244. 
 
 4 In re De Visme, 2 De G., J. & Sm. 17. 
 
 5 McGovern v. Knox, 21 Ohio St. 552. 
 
 « Devoy V. Devoy, 3 Sm. & Gif. 403 ; Dumraer v. Pitcher, 2 M. & K. 
 262 ; Bone v. Pollard, 24 Beav. 283 ; Sidmouth v. Sidmouth, 2 Beav. 447 ; 
 Fox V. Fox, 15 Jr. Ch. 89. 
 
 («) An advancement, and not a Ilandlan v. Handlan, 42 W. Va. 
 
 trust, is presumed when the person 309 ; Deck v. Tabler, 41 W. Va. 332. 
 
 who pays for property purchased is Thus, a gift to the donor's child, if 
 
 under a natural or moral obligation reasonable and provident, especially 
 
 to provide for the person receiving if made during the child's minority, 
 
 the conveyance. Danf orth v. Briggs, is presumed to be valid and irrevo- 
 
 89 Maine, 316 ; Whitley v. Ogle, 47 cable, even though a supposed claim 
 
 N. J. Eq. 67 ; Olipant v. Liversidge, for services is not legally valid. 
 
 1 12 111. 160 ; Brownell v. Stoddard, Molyneux v. Fletcher, [1.S98] 1 Q. B. 
 
 42 Neb. 177; Klamp v. Klamp, 51 648; Yeakel v. McAtee, 156 Peiin. 
 
 Neb. 17 ; Roberts v. Remy, 5G Ohio St. 600 ; Parker v. Parker, 45 N. J. 
 
 St. 249; Paddock i;. Adams, id. 242; Eq. 224 ; Cohen v. Parish (Ga.), 31 
 
 Kobarg v. Greeder, 51 Neb. 365; S. E. 205; Walker i. Brown (Ga.), 30 
 
 195
 
 § 145.] 
 
 RESULTING TRUSTS. 
 
 [chap. Y. 
 
 and may be rebutted by evidence or circumstances ; and some 
 courts have been astute in finding circumstances and subtile 
 
 id. 867. " In such cases the pre- 
 sumption of intention to become 
 the owner of the property arising 
 from the payment of the purchase- 
 money is rebutted by the stronger 
 counter presumption of an intention 
 to make an advancement to the 
 child or wife." Long v. King (Ala.), 
 23 So. 5.34; Smithsonian Inst'n v. 
 Meech, 169 U. S. 398, Walston v. 
 Smith, 70 Vt. 19. Acceptance by 
 such beneficiaries is presumed; if 
 minors, the law puts in an accept- 
 ance for them. Brunson v. Henry, 
 140 Ind. 455, 465. Such presump- 
 tion does not arise when the rela- 
 tionship does not obligate to sup- 
 port, as when the grantee in the 
 deed is the purchaser's brother. 
 Camden v. Bennett, 64 Ark. 155 ; 
 Teegarden v. Lewis, 145 Ind. 98 ; 
 Hall V. Kappenberger, 97 Mo. 509. 
 And the presumption, when existing, 
 is only a rebuttable presumption of 
 fact. Smithsonian Inst'n v. Meech, 
 169 U. S. 398 ; Ilallenback v. Rog- 
 ers (N. J. Eq.), 40 Atl. 576 ; Jaquith 
 V. Mass. Bap. Convention, 172 Mass. 
 439. A parent's legacy to his child in 
 his will is not to be reduced because 
 of his previous gifts to such child, 
 in the absence of any agreement to 
 that eSect. Jacques v. Swasey, 153 
 Mass. 596. A hu.sband, though 
 embarrassed, may convey to a trus- 
 tee for his family his interest in her 
 real estate when there is no fraud 
 and there is a consideration which 
 can be fairly regarded in equity as 
 valuable. Hitz v. National Met. 
 Bank, 111 U. S. 722; Mattoon v. 
 McGrew, 112 U. S. 713. It is held 
 196 
 
 that money received by a wife from 
 her father's estate, and by her deliv- 
 ered to her husband without any 
 promise, is not held by him under a 
 resulting trust because he after- 
 wards told her he has invested it 
 for her, but in fact took the title in 
 his own name. Nashville Trust Co. 
 V. Lannora (Tenn.) 36 S. W. 977 ; 
 Acker v. Priest, 92 Iowa, 610. If the 
 wife's father simply conveys prop- 
 erty to his son-in-law, as an advance- 
 ment, in consideration of love and 
 affection for her, the husband's title 
 is not charged with a trust for the 
 wife or her heirs. Higbee v. Hig- 
 bee, 123 Mo. 288 ; Noe v. Roll, 134 
 Ind. 115; Lewis v. Stanley, 148 Ind. 
 351 ; Heath v. Carter, 20 Ind. App. 
 83 ; 50 N. E. 318 ; Rogers v. Rogers 
 (S. C), 29 S. E. 812. When a hus- 
 band invests his wife's money in 
 land, and takes the title in his own 
 name, there is a resulting trust in 
 the land which she can enforce to 
 the extent that her money is clearly 
 shown to have been invested there- 
 in. See Light v. Zeller, 144 Penn. 
 St. 570, 582 ; Miller v. Baker, 160 
 id. 172 ; 166 id. 414 ; Lloyd v. 
 Woods, 163 id. 63 ; Lau's Estate, 
 176 id. 100 ; Weymouth v. Sawtelle, 
 14 Wash. 32 ; Barger v. Barger, 30 
 Oregon, 268 ; Fawcett v. Fawcett, 
 85 Wis. 332; Shupe v. Bartlett 
 (Iowa), 77 N. W. 455 ; Shelby v. 
 Tardy, 84 Ala. 327 ; Bell v. Stewart, 
 98 Ga. 609; Bean v. Bridgers, 108 
 N. C. 276 ; Grantham u. Grantham , 
 34 S. C. .504; Hill v. Meinhard, 
 39 Fla. Ill, 117; Throckmorton t-. 
 Throckmorton, 91 Va. 42. In such
 
 CHAP, v.] PURCHASES IN NAME OP WIFE OR CHILD. [§ 145. 
 
 distinctions to rebut this presumption. Thus, if the child 
 was an infant, it was tliought that a parent would not confer 
 upon it an absolute jiroperty, which it was incapable of man- 
 aging,^ and so, if the interest was reversionary, and not capa- 
 ble of present enjoyment, it was said that the father could 
 not have intended it as a provision and settlement, or ad- 
 vancement.2 Again, if a father took the conveyance in his 
 own name jointly with his son, it was supposed that the pre- 
 sumption of an advancement was rebutted, on the ground 
 that the father had some interest in one-half, and might have 
 the whole by survivorship, while the son could not sever the 
 joint tenancy till he arrived at age.^ And if a father took a 
 grant to himself and sons ui)on successive lives, it was thought 
 that, as the father must use some names beside his own, those 
 of his sons, being used from prudential and family reasons, 
 rebutted the presumption of an advancement and raised the 
 presumption of a trust ; ^ and so the circumstance that a child 
 was already provided for was held to rebut the presumption 
 of a further advancement.^ Again, if a father purchased in 
 
 1 Billion V. Stone, 2 Freem. 169; Nels. 68; 2 Freem. 128, c. 151. 
 
 2 Runiboll V. ItumboU, 2 Eden, 17; Finch v. Fiucli, 15 Ves. 43; Mur- 
 less V. Franklin, 1 Swanst. 13. 
 
 8 Stileman v. Ashdown, 2 Atk. 480; Pole v. Pole, 1 Yes. 76. 
 
 * Dyer v. Dyer, 2 Cox, 95; 1 Watk. Cop. 221; Dickinsons. Shaw, 
 2 Cox, 95. 
 
 6 Elliot V. Elliot, 2 Ch. Cas. 231 ; Pole v. Pole, 1 Yes. 76 ; Grey v. 
 Grey, 2 Swanst. 600; Finch, 341; Lloyd v. Read, 1 P. Wms. 608; Red- 
 iugtou V. Redington, 3 Ridg. 190. 
 
 case the husband has the burden of Hews v. Kenney, 43 Xeb. 815 ; 
 
 proof to show that the wife made a Cleghorn v. Obernalte, 53 Neb. 
 
 loan or gift of the money to him. 687, 690 ; Smith v. Willard, 174 
 
 Berry v. Wiedman, 40 W. Ya. 36; 111. 538. See Moore v. Moore, 165 
 
 Printup t'. Patton, 91 Ga. 422; Lof- Penn. St, 464. But the wife's in- 
 
 tis V. Loftis, 94 Tenn. 232 ; Benbow terest will be protected in equity, 
 
 V. Moore, 114 N. C. 263. The wife when her conduct is free from sus- 
 
 may be estopped in equity from picion, against such of his credi- 
 
 claiming such land when her hus- tors as did not rely upon his apparent 
 
 band's creditors are permitted to ownership of the property. Besson 
 
 contract with him on the under- v. Eveland, L'O N. J. Eq. 468 ; IIows 
 
 standing that it is his property, v. Kenney, supra. 
 
 197
 
 § 146.] RESULTING TRUSTS. [CHAP. V. 
 
 the naniG of an adult son, and kept the actual possession of 
 the estate, and received the rents and profits, the presumption 
 of an advance was supposed to be rebutted, and the presump- 
 tion of a trust created.^ 
 
 § 146. But these objections have all been overruled, and 
 from the manner these distinctions are disposed of, a general 
 principle applicable to every case may be stated, *' that reasons 
 which partake of too great a degree of refinement should not 
 prevail against a rule of property which is so well established 
 as to become a landmark, and which, whether right or wrong, 
 should be carried throughout," "^ and Lord Eldon added, that 
 this principle of law, that a purchase is presumed prima facie 
 to be an advancement, is not to be frittered away by mere re- 
 finements.^ Therefore it is now established that a purchase in 
 the name of an infant child is prima facie an advancement,* 
 and the purchase of a reversionary interest in the name of a 
 child falls within the same rule ; ^ so a purchase by a father, 
 in the joint names of himself and son,^ or in the joint names 
 of a son and a stranger,'^ and so if a father take an estate for 
 successive lives, as his own and his sons'.^ If a child in whose 
 name the purchase is made is already provided for, it will be 
 a circumstance to be considered with other evidence ; but it 
 will not of itself rebut the presumption of an advancement. 
 Lord Loughborough said, " that a purchase under such circum- 
 
 1 Gilb. Lex Pr«t. 271. 
 
 2 By Ch. B. Eyre, Dyer v. Dyer, 2 Cox, 98. 
 8 Finch V. Finch, 15 Ves. 50. 
 
 * Ibid.; Mumma v. Mumma, 2 Vera. 19; Lamplugh r. Lamplugh, 1 
 P. Wms. Ill; Lady Gorge's Case, 2 Swanst. 600; Collinson v. CoUinson, 
 3 De G., M. & G. 403; Skeats v. Skeats, 2 Y. & C. Ch. 9; Christy v. 
 Courtenay, 13 Beav. 19. 
 
 5 RumboU V. Rumboll, 2 Eden, 17; Murless v. Franklin, 1 Swanst. 13; 
 Finch V. Finch, 15 Ves. 43. 
 
 6 Dummer v. Pitcher, 2 M. & K. 272; Grey v. Grey, 2 Swanst. 599; 
 Back V. Andrew, 2 Vern. 120 ; Scroope v. Scroope, 1 Ch. Cas. 27 ; Thomp- 
 son V. Thompson, 1 Yerg. 97. 
 
 ' Hayes v. Kingdom, 1 Vern. 34; Kingdom v. Bridges, 2 id. 67; 
 Lamplugh V. Lamplugli, 1 P. Wms. 111. 
 8 Dyer v. Dyer, 2 Cox, 95. 
 198
 
 CHAP, v.] rURCHASES IN NAME OF WIFK Oil CHILD. [§ 147. 
 
 stances by a father in tlie name of a son w«« not, hut might be, 
 a trust fur the father.'" If a father purchase in the name of 
 a son, whether an infant or an adult, and keep the actual 
 possession of the estate, and receive the profits, it will be pre- 
 sumed tiiat the purchase was an advancement ;2 for if the son 
 was an infant, the father would be its natural guardian, or 
 quasi guardian, and protector, and thus receive the rents of 
 the estate.^ And if the son was an adult, the natural rever- 
 ence and submission due from children to their parents would 
 account for the circumstances.^ But any contemporaneous 
 acts wholly inconsistent with the intention of an advancement 
 to the child will make him a trustee for the father. Thus, if 
 there is any circumstance accompanying the purchase which 
 explains why it was taken in the wife's or child's name, and 
 shows that it was not intended to be an advancement, but was 
 intended to be a trust for the husband or father, the presump- 
 tion of an advancement will be rebutted, and the inference of 
 a trust will be established.^ 
 
 § 147. Whether a purchase in the name of a wife or child 
 is an advancement or not, is a question of pure intention, 
 
 1 Ibid. 93; Redington v. Redington, 3 Ridg. 190; Sidmouth v. Sid- 
 mouth, 2 Beav. 456; Kilpin v. Kilpiii, 1 M. & K. 542. 
 
 ^ Grey v. Grey, 2 Swanst. GOO ; Redington v. Redington, 3 Ridg. 190 ; 
 Lamplugh v. Lamplugh, 1 P. Wms. 111. 
 
 » iMuinma v. Mumma, 2 Vern. 19 ; Fox r. Fox, 15 Ir. Ch. 89 ; Taylor 
 V. Taylor, 1 Atk. 386; Lamplugh v. Lamplugh, 1 P. Wms. Ill; Lloyd v. 
 Read, id. 608; Lady Gorge's Case, Cro. Car. 550; 2 Swanst. 600; Stile- 
 man V. Ashdovvn, 2 Atk. 4'~i0; Christy v. Courtenay, 13 Beav. 96; Paschall 
 r. Hinderer, 28 Ohio St. 568. 
 
 * Grey v. Grey, 2 Swanst. 600; Dyer r. D^-er, 2 Cox, 95; Woodman 
 V. Morrell, 2 Freem. 32, note by Ilovenden ; Shales v. Shales, id. 252 ; 
 Scawen v. Scaweu, 1 Y. & C. Ch. 65; :\Iurless v. Franklin, 1 Swanst. 17; 
 Redington v. Redington, 3 Ridg. 190: Sidmouth v. Sidmouth, 2 Beav. 
 447 ; Elliot v. Elliot, 2 Ch. Cas. 231 ; Williams r. Williams, 32 Beav. 370 ; 
 Lloyd V. Read, 1 P. Wms. 007. 
 
 6 Pranki-rd v. Prankerd, 1 S. & S. 1 ; Baylis v. Newton, 1 Yern. 28; 
 Birch V. Blagrave, Arab. 264; Farr v. Davis, 8 East, 354; Perkins v. 
 Nichols, 11 Allen, 542; Balford v. Crane. 1 Greene, Ch. 205; Skillman v. 
 Skillinan, 2 McCartor, 478; Gibson r. Foote. 40 :Miss. 7S8; Cook r. Bre- 
 mond, 27 Tex. 457; Sunderland v. Sunderland, 19 Iowa, 325; Clark v. 
 Clark, 43 Yt. C85. 
 
 199
 
 § 147.] RESULTING TEUSTS. [CHAP. V. 
 
 though presumed in the first instance to be a provision and 
 settlement ; therefore, an}- antecedent or contemporaneous 
 acts or facts may be received, either to rebut or support the 
 presumption,^ and any acts or facts so immediately after the 
 purchase as to be fairly considered a part of the transaction 
 may be received for the same purpose.^ (a) And so the declara- 
 
 1 Christy v. Courtenay, 13 Beav. 96; Baylis v. Newton, 2 Vern. 28; 
 Shales v. Shales, 2 Freeiu. 252; Tucker v. Burrow, 2 Hem. & M. 524; 
 Coliinson v. Collinson, 3 De G., M. & G. 409; Murless v. Franklin, 1 
 Swanst. 19 ; Lloyd v. Read, 1 P. Wms. 607 ; Taylor v. Alston, cited 2 
 Cox, 96 ; Grey v. Grey, 2 Swanst. 600 ; Williams v. Williams, 32 Beav. 
 370; Redington v. Redington, 3 Ridg. 177; Rawleigh's Case, cited Hard. 
 497 ; Prankerd v. Prankerd, 1 S. & S. 1 ; Swift v. Davis, 8 East, 354, n. 
 (a) ; Hall v. Hall, 1 Connor & Law, 120 ; Taylor v. Taylor, 4 Gilm. 303 ; 
 Slack V. Slack, 26 Miss. 290; Johnson v. Matsdorf, 11 Johns. 91; Butler 
 V. M. Ins. Co., 14 Ala. 777; Dudley v. Bosworth, 10 Humph. 12; Hayes 
 V. Kindersley, 2 Sm. & Gif. 194; Peer v. Peer, 3 Stockt. 432; Persons v. 
 Persons, 25 N. J. Eq. 250 ; Milner v. Freeman, 40 Ark. 62. 
 
 2 Jeans v. Cooke, 24 Beav. 521; Redington v. Redington, 3 Ridg. 196; 
 Prankerd v. Prankerd, 1 S. & S. 1; Murless v. Franklin, 1 Swanst. 17 ; 
 Swift V. Davis, 8 East, 354, n. (a) ; Robinson v. Robinson, 45 Ark. 481. 
 
 (o) A resulting trust arises when ment from the wife's separate es- 
 a husband pays with his wife's tate to her husband is presumably a 
 funds for property purchased in his gift. Bennett i'. Bennett, 37 W. 
 own name, even though the pay- Va. 396 ; Clark v. Patterson, 158 
 ment is made after the purchase, in Mass. 388 ; Jewell v. Clay (Iowa), 
 instalments, or to pay off a mort- 77 N. W. 511 ; Beecher v, Wilson, 
 gage for the purchase price or other 84 Va. 813. The rule that a con- 
 iucumbrance ; but in general a re- veyance by a husband to his wife is 
 suiting trust is not established by a presumed to be a gift or advance- 
 payment or agreement subsequent ment does not apply when his en- 
 to the purchase. Irick i;. Clement, tire estate is thus conveyed. In such 
 49 N. J. Eq. 590 ; Gilchrist t'. case a resulting trust will be more 
 Brown, 165 Penn. St. 275 ; Howard readily inferred. Pool v. Phillips, 
 V. Howard, 52 Kansas, 469 ; Hamil- 167 111. 432. See Bacon v. Devinney, 
 ton V. Buchanan, 112 N. C. 463; 55 N. J. Eq. 449; Goelz y. Goelz, 
 Taylor v. Miles, 19 Oregon, 550; 157111. 33 ; Fay v. Morrison, 1.59 111. 
 see Milner v. Stanford, 102 Ala. 244 ; Gruhn v. Ricliardson, 128 111. 
 277 ; Greaves v. Atkinson, 68 Miss. 178 ; Lane v. Lane, 80 Maine, 570 ; 
 598; Moorman v. Arthur, 90 Va. Whitley v. Ogle, 47 N. J. Eq. 67 ; 
 455 ; Barlow v. Barlow, 47 Kansas, Gilliland v. Gilliland, 96 Mo. 522 : 
 676 ; supra, § 145, n. (a). A pay- see Moore v. Crawford, 130 U. S. 
 200
 
 CHAP, v.] EVIDENCE. [§ 147. 
 
 tions of the real purchaser, either before or at the time of the 
 ])urcha.se, may be received to show wliethcr lie intended it as 
 an advancement or a trust.' Such declarations are received, 
 not as declarations of a trust by parol or otherwise, but as 
 evidence to show what the intention was at the time. They 
 are parts of the transaction, or words accompanying an act.^ 
 The real purchaser, if otherwise competent, may be a witness 
 to state what his objects, purposes, and intentions were in 
 making the purchase and in taking the title in the name of his 
 wife or child.^ Of course, declarations made by the husband 
 or father after the purchase are incompetent to control the 
 effect of the prior transaction.* But such declarations may 
 be used by the wife or child against the purchaser to show 
 that it was a settlement and not a trust.^ And the after 
 declarations of the nominal grantee may be used against him, 
 but not in his favor.^ But the declarations must be direct 
 and certain, and where possible should be corroborated by 
 other facts and circumstances ; for courts will not act upon 
 
 1 Devoy v. Devoy, 3 Sm. & Gif. 403 ; Grey v. Grey, 2 Swanst. 594 ; 
 Kilpin V. Kilpin, 1 M. & K. 520; Sidmouth v. Sidmouth, 2 Beav. 455; 
 Scawen v. Scawen, 1 Y. & C. Ch. 65. 
 
 * Ibid. ; Baker v. Leathere, 3 Ind. 558- 
 
 8 Devoy v. Devoy, 3 Sm. & Gif. 403 ; Stone v. Stone, 3 Jur. (x. s.) 708. 
 
 * Tremper r. Burton, 18 Ohio, 418 ; Christy v. Courtenay, 13 Beav. 90 ; 
 TVilliams v. Williams, 32 Beav. 32 ; Sidmouth v. Sidmouth, 2 Beav. 456 ; 
 Elliot V. Elliot, 2 Ch. Cas. 231 ; Woodman v. Morrell, 2 Freera. 33; Finch 
 V. Finch, 15 Ves. 51 ; Birch v. Blagrave, Arab. 206 ; Skeats v. Skeats, 2 
 y. & C. Ch. 9 ; Gilb. Lex Prfet. 271 ; Murless v. Franklin, 1 Swanst. 13 ; 
 Crabb v. Crabb, 1 M. & K. 519 ; Prankerd v. Prankerd, 1 S. & S. 1 ; Hub- 
 ble V. Osborne, 31 Ind. 249. 
 
 ^ Redington v. Redington, 3 Ridg. 100 ; Sidmouth v. Sidmouth, 2 
 Beav. 455. 
 
 ° Scawen v. Scawen, 1 N. C. C. 65 ; Jeans v. Cook, 24 Beav. 521 ; Sid- 
 mouth V. Sidmouth, 2 Beav. 455 ; Pole v. Pole, 1 Ves. 76 ; Murless v. 
 Franklin, 1 Swanst. 20 ; Willard v. Willard, 56 Penn. St. 119. 
 
 122. By the weight of authority a veyance. Adams r. Collier, 122 
 voluntary conveyance made without U. S. 382, 391 ; Metropolitan Nat. 
 fraud by a husband to his wife can Bank r. Rogers, 47 F. R. 148, 151 ; 
 be avoided only by creditors who Pierce u. Hower, 142 Ind. 626. 
 were such at the date of the con- 
 
 201
 
 § 149.] RESULTING TRUSTS. [CHAP. V. 
 
 mere declarations, if they are conflicting, vague, or inconsist- 
 ent with themselves.* 
 
 § 148. If a father pays the purchase-money, and the wife 
 or child, by fraud, or any wrongful act, and against the inten- 
 tion of the real purchaser, obtains the conveyance in her or 
 its name, the presumption of an advancement would be re- 
 butted, and the presumption of a trust would arise for the 
 father.2 So if a son pay the purchase-money and the deed is 
 made to his father by mistake, a trust results to the son.^ 
 
 § 149. If a purchaser and payer of the money take the con- 
 veyance in the name of a wife or child, for the purpose of 
 delaying, hindering, or defrauding his creditors, the convey- 
 ance is void, or a trust results which creditors can enforce to 
 the extent of their debts.* It makes no difference by the 
 better opinion that the intent was not fraudulent. A man 
 must be just before he is generous ; and if the property given 
 to the wife was bought with funds that ought to have gone to 
 pay creditors, the property is liable to them.^ A parallel de- 
 cision was reached where a wife bought land with her own 
 money, had it deeded to her husband, and the latter contracted 
 debts on the faith of being the owner of the land.^ If the par- 
 
 ^ Grey v. Grey, 2 Swanst. 597 ; Scawen v. Scawen, 1 N. C. C. 65 ; 
 Cartwright v. Wise, 14 111. 417; Cairns v. Colburn, 104 Mass. 247. 
 
 2 Peer v. Peer, 3 Stockt. 432 ; Hail v. Doran, 13 Iowa, 368 ; Perkins 
 V. Nichols, 11 Allen, 542 ; Persons v. Persons, 25 N. J. Eq. 250. 
 
 8 Fairhurst v. Lewis, 23 Ark. 435. 
 
 * Christ's Hospital v. Budgin, 2 Vern. 684; Lush v. Wilkinson, 5 Ves. 
 384 ; Townshend v. Westacott, 2 Beav. 340 ; Stileman v. Aslidown, 2 Atk. 
 477 ; Guthrie v. Gardner, 19 Wend. 414 ; Jencks v. Alexander, 11 Paige, 
 619; Watson v. Le Row, 6 Barb. 487 ; Newell r. Morgan, 2 Harr. 225; 
 Bell v. Hallenback, AYright, 751 ; Edgiugton v. Williams, id. 439 ; Parrish 
 V. Rhodes, id. 339 ; Creed v. Lancaster Bank, 1 Ohio St. 1 ; Demaree v. 
 Driskill, 3 Blackf. 115 ; Doyle v. Sleeper, 1 Dana, 531 ; Rucker v. Abell, 
 8 B. Mon. 566 ; Crozier v. Young, 3 Mon. 158 ; Gowing v. Rich, 1 Ired. 
 553 ; Croft v. Arthur, 3 Des. 223 ; Elliott v. Hart, 10 Ala. 348 ; Abney v. 
 Kiugsland, id. 355; Cutter v. Griswold, Walk. Ch. 437; Kimmel v. Mc- 
 Right, 2 Barr, 38; McCartney v. Bostwick, 32 N. Y. 53; Bartlett v. 
 Bartlett, 13 Neb. 460, quoting the text. 
 
 6 Bridgers v. Howell, 27 S. C. 431. « Roy v. McPherson, 11 Neb. 197. 
 202
 
 CHAP, v.] CONVEYANCE OF LEGAL TITLE, ETC. [§ 150. 
 
 ent or husband was not indebted at the time, subsequent cred- 
 itors could not defeat the title nor enforce the trust,' unless 
 the settlement or conveyance was made for the purpose of after- 
 wards running in debt and defrauding creditors. In some 
 States, as in Pennsylvania and Massachusetts, an execution 
 against the debtor can be levied directly upon the land in the 
 hands of the trustee ; in other States the land can only be 
 reached in equity. In Minnesota, a purchase by a husband and 
 a deed to the wife creates no trust as to him, but the wife holds 
 in trust for creditors unless fraudulent intent is disproved.^ 
 
 § 150. A very common case of a resulting trust is where 
 the owner of both the legal and equitable estate conveys the 
 legal title only, without conveying the equitable interest.^ 
 The general rule in such case is, that wherever it appears, 
 upon a conveyance, devise, or bequest, that it was intended 
 that the grantee, devisee, or legatee should take the legal 
 estate only, the equitable interest, or so much of it as is left 
 undisposed of, will result, if arising out of the settlor's realty, 
 to himself or his heirs ; if out of his personal estate, to him- 
 self, his executors, or administrators.* Whether the convey- 
 ance was intended to convey the beneficial as well as the legal 
 estate is sometimes a matter of presumption by the court from 
 all the circumstances of the case, and sometimes it is expressed 
 upon the instrument itself in such manner that no doubts 
 can arise. When it is matter of presumption, parol evidence 
 may be received to rebut or sustain the presumption.^ But 
 
 ^ Creed v. Lancaster Bank, 1 Ohio St. 1 ; Knouff v. Thompson, 16 
 Penn. St. 357; Dillard v. Dillard, 3 Humph. 41 ; Cutler v. Tuttle, 19 N. 
 J. Ch. 556. 
 
 2 Leonard v. Green, 30 Miuu. 496. 
 
 8 Morice v. Bishop of Durham, 10 Ves. 537 ; Paice r. Canterbury, 14 
 Ves. 370. 
 
 * Lewin on Trusts, 115 (5th ed. Lond.) ; Levet v. Needham, 2 Vern. 
 138; Wych r. Packington, 3 Bro. Ch. 44; Sewell v. Denny, lOBeav. 315; 
 Ilalford V. Stains, 16 Sim. 488 ; Barrett v. Buck, 12 Jur. 771 ; Cooke v. 
 Dealy, 22 Beav. 196 ; Fletcher v. Ashburner, 1 Bro. Ch. 501 ; Re Cross's 
 Estate, 1 Sim. (n. s.) 260 ; Hogau v. Staghorn, 65 N. C. 279. 
 
 ^ Cook V. Hutchinson, 1 Keen, 50 ; Docksey i-. Docksey, 2 Eq. Cas. 
 Ab. 500 ; 3 Bro. P. C. 39 ; North v. Crompton, 1 Ch. Cas. 196 ; 2 Vern. 253 ; 
 
 203
 
 § 151.] RESULTING TRUSTS. [CHAP. V. 
 
 where the trust results by force of the written instrument, it 
 cannot be controlled, rebutted, or defeated by parol evidence 
 of any kind.^ 
 
 § 151. No general rule can be stated, that will determine 
 when a conveyance will carry with it a beneficial interest, 
 and when it will be construed to create a trust; but the 
 intention is to be gathered in each case from the general 
 purpose and scope of the instrument. ^ A conveyance to a 
 wife or child will be presumed to carry a beneficial interest,^ 
 but such consideration is only a circumstance of evidence.* 
 It has been said, that if a man transfer property to another, 
 it must be presumed that it proceeded from an intention to 
 benefit the other by making the gift and conferring the 
 beneficial interest;^ but if such intention cannot be inferred 
 consistently with all the circumstances attending the trans- 
 action, a trust will result.^ The heir is not to be excluded 
 
 Mallabar v. Mallabar, Cas. t. Talb. 78 ; Petit v. Smith, 1 P. Wms. 7 ; 
 Nourse v. Finch, 1 Ves. Jr. 344 ; Walton v. Walton, 14 Ves. 318 ; Lang- 
 ham V. Sanford, 17 Ves. 435; Gladding v. Yapp, 5 Mod. 56; Lake v. 
 Lake, 1 Wils. 313 ; Amb. 126 ; Trimmer v. Bayne, 7 Ves. 520 ; Williams 
 V. Jones, 10 Ves. 77 ; Barnes v. Taylor, 27 N. J. Eq. 265. 
 
 1 Langham v. Sanford, 17 Ves. 435, 442; 19 Ves. 643; Rachfield v. 
 Careless, 2 P. Wms. 158 ; Gladding v. Yapp, 5 Mod. 59 ; White v. Evans, 
 4 Ves. 21 ; Walton v. Walton, 14 Ves. 322 ; Petit v. Smith, 1 P. Wms. 7 ; 
 Nourse v. Finch, 1 Ves. Jr. 344 ; Ralston v. Telfair, 2 Dev. Eq. 255 ; 
 Hughes V. Evans, 13 Sim. 496 ; White v. Williams, 3 V. & B. 72 ; Love 
 V. Gaze, 8 Beav. 472. 
 
 2 Hill V. Bishop of London, 1 Atk. 620 ; Walton v. Walton, 14 Ves. 
 322 ; Starkey v. Brooks, 1 P. Wms. 391 ; King v. Dennison, 1 Ves. & B. 
 279 ; Ellis v. Selby, 1 M. & K. 298. 
 
 3 Christ's Hospital r. Budgin, 2 Vern. 683 ; Jennings v. Selleck, 1 
 Vern. 467 ; Grey v. Grey, 2 Swanst. 598 ; Elliot v. Elliot, 2 Ch. Cas. 
 232; Hayes v. Kingdom, 1 Vern. 33; Baylis v. Newton, 2 Vern. 28; Cook 
 V. Hutchinson, 1 Keen, 42 ; Cripps v. Jee, 4 Bro. Ch. 472 ; Rogers v. 
 Rogers, 3 P. Wms. 193; Lloyd v. Spillett, 2 Atk. 566; Robinson v. Tay- 
 lor, 2 Bro. Ch. 594; Smith v. King, 16 East, 283; Coningham v. Mel- 
 lish, Pr. Ch. 31. 
 
 * Huggins V. Yates, 9 Mod. 122 ; Wych v. Packington, 2 Eq. Cas. Ab. 
 507 ; King v. Dennison, 1 Ves. & B. 474. 
 ^ George v. Howard, 7 Price, 651. 
 ® Custance v. Cumiingham, 13 Beav. 363. 
 204
 
 CHAP. Y.] CONVEYANCE OF LEGAL TITLE, ETC. [§ 151. 
 
 from a resulting trust upon bare conjecture;* there must be 
 positive evidence of a benefit intended to the devisee, and 
 not merely negative evidence that none was intended for the 
 heir; for the beneficial interest results to the heir, not from 
 the intention of the ancestor, but because he has expressed 
 no intention. 2 Thus, a trust may result upon a legacy given 
 to the heir; 2 but the circumstance of being heir, with other 
 circumstances, will be strong evidence that no trust was 
 intended.* But in no case will the court permit the grantee 
 to retain the beneficial interest, if there was any mistake on 
 the part of the grantor,^ or any fraud on the part of the 
 grantee.^ If the grantor intended a fraud upon the law, 
 there can be no resulting trust ;7 however, even in this case, 
 if the grantee admits the trust, the court will enforce it.^ If 
 a conveyance has been made upon a valuable consideration, 
 there can be no resulting trust to the grantor, as the i)ay- 
 ment of a valuable consideration imports an intention to ben- 
 efit the grantee in case the trusts declared fail, or are imper- 
 fectly declared, or do not take effect for any other reason.^ 
 
 1 Halliday v. Hudson, 3 Ves. 211 ; KeUett v. Kellett, 3 Dow, 243 ; 
 Amphlett v. Parke, 2 R. & M. 227; Phillips v. Phillips, 1 M. & K. CGI ; 
 Salter v. Cavanagh, 1 Dru. & Walsh, 6()8. 
 
 * Hopkins v. Hopkins, Cas. t. Talb. 44 ; Tregonwell v. Sydenham, 3 
 Dow, 211; Lloyd v. Spillett, 2 Atk. 151 ; Habergham v. Vincent, 2 Ves. 
 Jr. 22.5. 
 
 « Randall v. Bookey, 2 Vern. 425; Pr. Ch. 162; Starkey r. Brooks, 1 
 P. Wms. 390, overruling North v. Crompton, 1 Ch. Cas. 190 ; Killett r. 
 Killett, 1 Ball & B. 543: 3 Dow, P. C. 248. 
 
 * Rogers r. Rogers, 5 P. Wms. 193; Sel. Ch. Ca. 81 ; INIallabar v. Mal- 
 labar, Cas. t. Talb. 78; and other cases above cited. 
 
 ^ Birch V. Blagrave, Arab. 264; Woodman v. jNIorrell, 2 Freem. 33 ; 
 Childers v. Chiklers, 1 De G. & Jon. 482 ; Att. Gen. v. Pouldeu, 8 Sim. 
 472. 
 
 6 Lloyd V. Spillett, 2 Atk. 150 ; Barn. 388 ; Hutchins v. Lee, 1 Atk. 
 488 ; Young v. Peachy, 2 Atk. 254-257 ; 2 Vera. 307 ; Tipton r. Powell, 
 2 Cold. 119. 
 
 ' Cottington v. Fletcher, 2 Atk. 156 ; Chaplin v. Chaplin, 3 P. Wms. 
 233 ; Muckleston v. Brown, 6 Ves. 08. 
 
 8 Ibid. 
 
 ' Kerlin v. Campbell, 15 Penn. St. 500 ; Gibson v. Armstrong, 7 B. 
 Mon. 481 ; Brown v. Jones, 1 Atk. 158 ; Ridout r. Dowding, 1 Atk. 419. 
 
 205
 
 § 152.] RESULTING TRUSTS. [CHAP. V. 
 
 § 152. Thus, if upon a conveyance, devise, or bequest, a 
 trust is declared of a part of the estate only, or the purposes 
 of the trust do not exhaust the whole beneficial interest, the 
 trust in the remaining part or interest will result to the 
 settlor or his heirs ;^ for the reason that a declaration of 
 trust as to part is considered sufficient evidence that the 
 settlor did not intend the donee to take the beneficial interest 
 in the whole, and that the creation of the trust was the sole 
 object of the transaction. But a distinction must be observed 
 between a devise to a person for a particular purpose, with 
 no intention of conferring upon him any beneficial interest, 
 and a devise with a view of conferring the beneficial interest, 
 but subject to a particular charge, wish, or desire. Thus, if 
 a gift be made to one and his heirs, charged with the pay- 
 ment of debts, it is a gift for a particular purpose, but not 
 for that purpose only ; and if it is the intention to confer 
 upon the donee of the legal estate a beneficial interest after 
 the particular purpose is satisfied without exhausting the 
 whole estate, the surplus goes to the donee and does not 
 result. 2 But if the gift is upon a trust to pay debts, that is a 
 gift for a particular purpose and nothing more. If the 
 whole estate is given for that one purpose, and that purpose 
 does not exhaust the whole estate, the remainder results to 
 
 1 Northen v. Carnegie, 4 Drew. 587; Lloyd v. Spillett, 2 Atk. 150; 
 Barn. 388 ; Cottington v. Fletcher, id. 155 ; Culpepper v. Aston, 2 Ch. 
 Cas. 115; Cook v. Gwavas, cited Roper i\ Kadcliffe, 9 Mod. 187 ; Sher- 
 rard v. Harborough, Amb. 165 ; Hobart v. Suffolk, 2 Vern. 644 ; Bristol 
 V. Huugerford, id. 645 ; Halliday v. Hudson, 3 Ves. 210 a ; Killett v. Kil- 
 lett, 3 Dowl. P. C. 248 ; Davidson v. Foley, 2 Bro. Ch. 203 ; Levet v. 
 Needham, 2 Vern. 138 ; Kiricke v. Bransbey, 2 Eq. Cas. Ab. 508 ; Rob- 
 inson V. Taylor, 2 Bro. Ch. 589 ; Mapp v. Elcock, 2 Phill. 793 ; 3 H. L. 
 Cas. 492; Read v. Stedman, 26 Beav. 495; Dawson v. Clarke, 18 Ves. 
 254 ; Wych v. Packington, 3 Bro. Ch. 44 ; Hill v. Cook, 1 V. & B. 
 173 ; Mullen v. Bowman, 1 Coll. N. C. 197; Loring i'. Elliott, 16 Gray, 
 568. 
 
 2 Hill V. London, 1 Atk. 619 ; King v. Dennison, 1 V. & B. 260 ; 
 Southouse V. Bate, 2 V. & B. 396 ; Mullen v. Bowman, 1 Coll. C. C. 197; 
 Dawson v. Clarke, 18 Ves. 247 ; Walton v. Walton, 14 Ves. 318 ; Wood i'. 
 Cox, 1 Keen, 317 ; 2 M. & Cr. 684 ; Downer r. Church, 44 N. Y. 647 j 
 Clarke v. Hilton, L. R. 2 Eq. 810 ; Irvine v. Sullivan, L. R. 8 Eq. 673. 
 
 206
 
 CHAP, v.] TRUSTS DECLARED AS TO TART. [§ 153. 
 
 the donor or his licirs. ' Or, as Vice-Cliancellor Wood stated 
 the rule : (1) where there is a gilt to one to enable him to do 
 something, where he has a choice whether he will do it or 
 not, then the gift is for his own benefit, the motive why it 
 is given to him being stated; (2) where you find the gift is 
 for the general purposes of the will, then the person who 
 takes the estate cannot take the surplus after satisfying a 
 trust for his own benefit; (3) where a charge is created Ijy 
 the will, the devisee takes the surplus for his own benefit, 
 and no trust is implied. ^ 
 
 § 153. If from the whole instrument there can l)e gathered 
 an intention to benefit the donee, no trust in the remainder 
 will result, as where a man made Ms dearly beloved wife his 
 sole heiress and executrix to pay his debts and legacies, and 
 there was a residue after paying debts and legacies, there 
 was no resulting trust, for the expressions in the Avill indi- 
 cated an intention to benefit the donee. ^ So any other 
 expressions that indicate an intention that the donee shall 
 be benefited after the particular purposes are satisfied, will 
 prevent a trust from resulting.^ So expressions of affection 
 
 1 King V. Dennison, 1 V. & B. 272; McElroy v. :\rcElroy, 113 Mass. 509. 
 
 2 Barrst;. Fewke, 2 Ilem. & M. 60; 11 Jur. (x. s.) 069 ; Sanderson's 
 Trust, 3 K. & J. 407 ; Saltmarsh v. Barrett, 29 Beav. 474 ; 3 De G., F. & 
 J. 279 ; Pollard's Trusts, 32 L. J. Ch. 6.j7 ; Henderson v. Cross, 17 Jur. 
 (n. s.) 177; Hale v. Home, 21 Grat. 112. In Cooke v. Stationers' Co., 3 
 My. & K. 262, Sir John Leach said : " If the devise to a particular, or for 
 a particular purpose, be intended by the testator to be an exception from 
 the gift to the residuary devisee, the heir takes the benefit of the failure; 
 but if it be intended to be a charge only upon the estate devised, and not 
 an exception from the gift, the devisee will be entitled to the benefit of 
 the failure." Thus if lands be devised to A. charged with a legacy to B. 
 if he attain the age of twenty-one, the devise will become absolute in A. 
 if B. dies before he becomes twenty-one. And the will is to read as if B. 
 was not named in it. Tregonwell v. Sydenham, 3 Dow, 210 ; Sprigg v. 
 Sprigg, 2 Vern. 394 ; Cruse p. Barley, 3 P. Wms. 20 ; Att Gen. v. 
 Milner, 3 Atk. 112 ; Croft v. Slee, 4 Ves. 60; Sutcliffe v. Cole, 3 Drew. 
 185 ; Jackson r. Ilurlack, 2 Eden, 203; Tucker v. Kayess, 4 K. & J. 339. 
 
 * Rogers v. Rogers, 3 P. Wms. 193 ; Cook v. Hutchinson, 1 Keen, 42 
 
 * Meredith v. Heueage, 1 Sim. 555; Wood v. Cox, 2 M. & Cr. 692 j 
 Cook V. Hutchinson, 1 Keen, 42. 
 
 207
 
 § 155.] RESULTING TRUSTS. [cHAP. Y. 
 
 or relationship will be evidence upon the question whether a 
 trust was intended to result after the particular trusts are 
 satisfied.^ If the donee is an infant incapable of executing 
 a trust, or a married woman, it will be evidence upon the 
 same question. ^ But if from the whole will it is apparent 
 that the donee shall not take a beneficial interest, all such 
 circumstances go for nothing.^ 
 
 § 154. If the donee, to whom an estate is given upon a 
 trust declared as to part, is also the heir, or other person 
 to whom the trust for the remainder would result, or if he 
 is one of a class, such gift to him will not prevent him from 
 taking by the resulting trust the part that may come to 
 him.* So a legacy or other beneficial gift to him will not 
 exclude him from the resulting interest,^ even if the interest 
 given him is to arise out of the declared trust. ^ 
 
 § 155. The doctrine of resulting trusts, where a trust is 
 declared as to part only, was formerly much discussed in 
 cases of gifts to executors for the payment of debts and 
 legacies. In such cases at common law the appointment of 
 the executor entitled him, both at law and equity, to all the 
 remainder of the personal property after the payment of 
 debts and legacies, unless it was specially disposed of by the 
 testator in the will. Courts were always astute to find cir- 
 cumstances to repel the beneficial interest in the executor, 
 and to raise a resulting trust for the next of kin, or heir-at- 
 law; and it was finally enacted, 1 Will. TV., c. 40, that 
 such executors should be trustees of any residue, unless it 
 
 1 Rogers v. Rogers, 3 P. Wms. 193 ; Coningham v. Mellish, Pr. Ch. 
 31; King v. Dennisoii, 1 V. & B. 274; Hobart v. Suffolk, 2 Vern. CAi. 
 
 2 Williams i: Jones, 10 Ves. 77 ; Blinkhorn v. Feast, 2 Ves. Sr. 27. 
 8 King V. Mitchell, 8 Pet. 349; King v. Denuison, 1 V. & B. 275. 
 
 * Hennershotz's Estate, 16 Pa. St. 435. 
 
 8 Fan-ington v. Knightly, 1 P. Wms. 545 ; Rutland v. Rutland, 2 P. 
 Wms. 213 ; Andrews v. Clark, 2 Ves. Sr. 162; North v. Pardon, 2 Ves. 
 Sr. 495. 
 
 6 Starkey v. Brooks, 1 P. Wms. 390; Randal v. Bookey, 2 Vern. 425; 
 Pr. Ch. 162; Killett v. Killett, 1 B. & B. 543 ; 3 Dowl. P. C. 248. 
 208
 
 CHAP, v.] WHERE TRUST FAILS OR IS NOT DECLARED. [§ 157. 
 
 plainly appeared by the will that they were intended to take 
 the residne beneficially." In the United States the rule 
 never prevailed, but executors always took as trustees for 
 those entitled to the distribution of the personal estate, 
 unless it was expressly disjjosed of to some other persons, or 
 unless it was cx])ressly given to the executor beneficially.''^ 
 
 § 156. In this connection an important exception to the 
 general doctrine of resulting trusts should be stated. If 
 property is given to trustees by grant or devise for charitable 
 uses (jnn'ralhi^ and the ]»articular purpose is not declared at 
 all, or, if declared, does not exhaust the whole estate, there 
 will be no resulting trust for the donor, his heirs, or next of 
 kin, in either case; nor will the donees take any beneficial 
 interest, but the court will direct the trustees to administer 
 the whole estate under some scheme for charitable purposes.^ 
 
 § 157. If a gift is made by deed or will upon trunt^ and no 
 trust is declared,^ or a bequest is made to one named, as 
 executor, "to enable him to carry into effect the trusts of 
 the will," and none are declared,^ or a gift is made upon 
 
 1 See 2 Story, Eq. Jur. § 1208, and the elaborate note cited from Fon. 
 Eq. B. 2, c. 5, § 3, note (k). 
 
 2 Hill on Trustees, 1234 (Am. erl.) ; 2 Story, Eq. Jur. §§ 1208, 1209; 
 as the doctrine has never prevailed in America, it is not worth while to 
 state all the learning and nice distinctions of the courts. They will be 
 found in Ilill, Story, and Fonblanque as above cited. 
 
 8 Cook V. Dunkenfield, 2 Atk. 5G7; Metford School, 8 Co. 130; IMog- 
 gridge v. Thackwell, 7 Ves. 73; Att. Gen. v. Bristol, 2 J. & W. 308; 
 ^Mills I'. Farmer, 1 Mer. 55 ; Att. Gen. v. Haberdashers' Co., 4 Bro. Ch. 
 103 ; see pout, chapter upon Charitable Trusts, where this matter is stated 
 at large. 
 
 * Att. Gen, v. Windsor, 8 H. L. Ca. 309 ; 21 Beav. 679 ; Gloucester 
 V. Wood, 1 H. L. Cas. 272 ; 3 Hare, 131 ; Dawson v. Clark, 18 Ves. 254 
 Dunnage v. White, 1 J. & W. 583 ; Morice v. Durham, 10 Ves. 537 
 Woollett V. Harris, 5 ]\Iadd. 452; Southouse v. Bate. 2 Ves. & B. 396 
 Goodere v. Lloyd, 3 Sim. 538; Pratt v. Sladden, 14 Ves. 198; Anon., 1 
 Com. 345; Pen fold v. Bouch, 4 Hare, 271 ; Brown v. Jones, 1 Atk. 101 ; 
 Sidney v. Shelley, 19 Ves. 359 ; Emblyn r. Freeman, Pr. Ch. 542 ; Coard 
 V. Ilolderness, 20 Beav. 147 ; Longley v. Longley, L. K. 13 Eq. 137. 
 
 6 Barrs r. Fewke, 2 Hem. & M. GO. 
 VOL. I.— 14 209
 
 § 158.] RESULTING TRUSTS. [CHAP. V. 
 
 trusts thereafter to be declared, and no declaration is ever 
 made,^ the legal title only will pass to the grantee or devisee, 
 while a trust in the equitable interest will result to the 
 settlor, his heirs, or legal representatives, according to the 
 nature of the property, whether real or personal ; for it 
 appears upon the instrument itself that the legal title alone 
 was intended for the first taker, and that the equitable 
 interest was intended to go to some other person, and as 
 such other person cannot take the equitable interest for 
 want of a declaration of the trust, it results to the settlor or 
 his heirs. 2 So if a testator says that he gives the residue, 
 and stops there, ^ or if he cancels a residuary bequest by 
 drawing a line through it.^ But if it should plainly appear 
 from the whole instrument that the donee is to take bene- 
 ficially in case the trusts are not declared, no trust will 
 result to the owner or heir.^ 
 
 § 158. It is to be observed, however, that the intention of 
 the instrument is to be gathered from its general scope; 
 hence, although the words upon trust are very strong evi- 
 dence of the donor's intention not to confer the beneficial 
 interest upon the donee, ^ yet it may be negatived by the con- 
 text, and the general interpretation of the whole paper ; ^ so, 
 
 1 London v. Garway, 2 Vern. 571 ; Collins v. Wakeman, 2 Ves. Jr. 
 683 ; Emblyn v. Freeman, Pr. Ch. 541 ; Fitch v. Weber, 6 Hare, 145 ; 
 Brookman v. Hales, 2 V. & B. 45; Brown v. Jones, 1 Atk. 188; Sidney 
 V. Shelley, 19 Ves. 352 ; Taylor v. Haygarth, 14 Sim. 8 ; Flint v. Warren, 
 16 Sim. 124 ; Onslow v. Wallis, 1 H. & Tw. 513 ; 1 McX. & G. 506 ; Jones 
 r. Goodchild, 3 P. Wms. 33 ; Sturtevant v. Jaques, 14 Allen, 526 ; Shaw 
 V. Spencer, 100 Mass. 388. 
 
 2 Aston V. Wood, L. R. 6 Eq. 419 ; Jones v. Bradley, L. R. 3 Eq. 635. 
 
 3 Cloyne v. Young, 2 Ves. Sr. 91 ; Langham v. Sandford, 17 Ves. 435 ; 
 Mapp D.Elcock, 2 Phill. 793. 
 
 * Mence v. Mence, 18 Ves. 348; Skrymsher v. Northcote, 1 Swanst. 
 566. 
 
 s Sidney v. Shelley, 19 Ves. 352. Whether a trust results to a debtor 
 in an unclaimed dividend. Dillaye v. Greenough, 45 N. Y. 438. 
 
 6 Hill V. London, 1 Atk. 618; WooUett v. Harris, 5 Md. 452; Sturte- 
 vant V. Jaques, 14 Allen, 526 ; Shaw v. Spencer, 100 Mass. 526. 
 
 ' Coningham v. Mellish, Pr. Ch. 31 ; Dawson v. Clark, 15 Ves. 409; 
 210
 
 CHAP, v.] WHERE TRUST FAILS OR IS NOT DECLARED. [§ 158. 
 
 if the donee is called a trustee, the term may be shown to 
 apply to one of two funds, and the donee may take a bene- 
 ficial interest in the other, ^ or it may be so used as to )je a 
 mere deseriptio personce, and although no beneficiary is 
 named, a trust does nut necessarily result to the grantor,'-^ 
 On the other hand it may appear, from the whole instru- 
 ment, that the donee is not to take the beneficial interest, 
 although the words upon trust, or trustee, are not used ; as 
 where there is a direction that the donee shall be allowed 
 his costs and expenses out of the fund given him, which 
 would be without meaning if he took the whole beneficial 
 interest in the fund.^ But if the conveyance is by deed for 
 a valuable consideration, the grantee will take the beneficial 
 interest if the trusts fail to be declared, or fail in any way ; 
 for there can be no resulting trusts where the grantee pays a 
 valuable consideration for the estate.'* (a) Where a will 
 contained in substance this clause, " I give to my executor, 
 P., $800 to have and to hold the same to the use of S. as 
 follows : I desire in case S. should at any time need assist- 
 ance or come to want, that my executor should expend such 
 part of said $800 as will make her comfortable and keep her 
 so during her life. The remainder, if any, of said $800, at 
 the decease of S. I give to the said P. and his heirs," it was 
 
 18 Ves. 247; Hughes v. Evans, 13 Sim. 406; Cook v. Hutchinson,! 
 Keen, 42 ; Dillaye v. Greenough, 45 N. Y. 438. 
 
 1 Gibbs V. Rumsey, 2 V. & B. 294; Pratt v. Sladden, 14 Ves. 193; 
 Battely v. Windle, 2 Bro. Ch. 31 ; Bingham v. Stewart, 13 Minn. 106 ; 
 Pratt c. Beaupre, 13 Minn. 187; Dillaye v. Greenough, 45 N. Y. 438, 
 
 2 DiUaye v. Greenough, 45 N. Y. 438. 
 
 8 Saltmarsh v. Barrett, 3 De G., F. & J. 279 ; 29 Beav. 474. 
 * Brown v. Jones, 1 Atk. 158; Ridout v. Dowding, id. 419; Kerlin v. 
 Campbell, 15 Penn. St. 500. 
 
 (a) A trust fails, when there was mode. Teele v. Bishop of Derry, 
 
 no intention to create one, which 168 Mass. 341. So when a deed 
 
 can be carried out ; and even char- shows no intention outside of the 
 
 itable trusts fail when they cannot mode and form adopted by the 
 
 be carried out in the mode intended, deed, it fails, if the deed itself was 
 
 if there was no intention that they never delivered. Loring r. Ilildreth, 
 
 should be carried out in any other 170 Mass. 328, 331. 
 
 211
 
 § 159.] KESULTING TRUSTS. [CHAP. V. 
 
 held that P. held the money to the use of S. during her life, 
 and whether she was in need or no must pay the income to 
 her, and if in need must expend for her such part of the 
 principal as might be requisite to make her comfortable. ^ 
 
 § 159. If a trust for a specific purpose fails by the failure 
 of the purpose, the property reverts to the donor or his 
 heirs. ^ (a) If the gift is made upon a trust, and the trust is 
 insufficiently or ineffectually declared, as, if it is too indefi- 
 nite, vague, and uncertain to be carried into effect, it will 
 result to the settlor, his heirs, or representatives.^ Whether 
 a trust is insufficiently declared or not, depends of course 
 upon the particular construction to be given to each indi- 
 vidual deed or will ; * and so, whether a trust is too vague to 
 be executed or not, depends upon the interpretation given to 
 each instrument.^ If the declaration of trust is too imper- 
 fect to establish that purpose, and yet plainly shows that the 
 intention was that the donee should not take beneficially, 
 and that the sole purpose of the gift or grant was to carry 
 out the purpose of the trust, which fails, the donee will take 
 in trust for the donor or his heirs; but if it appear, from the 
 whole instrument, that some beneficial interest was intended 
 for the donee, or that he was intended to take beneficially in 
 case the particular purpose fails, no trust will result, but he 
 will take the estate discharged of all burdens.^ 
 
 ^ Coburn v. Anderson, 131 ]\Iass. 513. 
 
 2 Gumbert's App., 110 Penn. St. 496. 
 
 s Williams v. Kershaw, 5 CI. & Fin. Ill ; Ellis v. Selby, 7 Sim. 352; 
 1 M. & C. 286 ; Fowler v. Garlike, 1 R. & M. 232; Morice v. Durham, 
 9 Ves. 399 ; 10 Ves. 522 ; Kendall v. Granger, 5 Beav. 300 ; Vesey v. 
 Jamson, 1 S. & S. 69 ; Stubbs v. Sargon, 3 M. & C. 500; 2 K. 255; 
 Leslie v. Devonshire, 2 Bro. Ch. 187 ; James v. Allen, 3 Mer. 17; Sturte- 
 vant V. Jaques, 14 Allen, 526 ; Shaw v. Spencer, 100 Mass. 388. 
 
 * Ellis V. Selby, 1 M. & K. 298. 
 
 6 Ibid. 
 
 ® Gibbs V. Rumsey, 2 Ves. & B. 294; Cawood r. Thompson, 1 Sm. & 
 Gif . 409 ; Lomax v. Ripley, 3 Sm. & Gif . 48 ; Hughes v. Evans, 13 Sim. 
 496; Ralston v. Telfair, 2 Dev. Eq. 255. 
 
 (a) Jenkins v. Jenkins Uni., 17 Wash. 160. 
 
 212
 
 CHAP, v.] VOLUNTAIIY CONVEYANCE. [§ 160. 
 
 § 160. Where a j^ift is made upon trusts that are void, in 
 whole or in part, for illegality,' or that fail by lapse, or 
 otherwise, during the life of the donor,^ a trust will result 
 to the donor, his heirs, or legal representatives, if the prop- 
 erty is not otherwise disposed of. (a) Thus, where the gilt 
 or trust is void by statute, as a disposition in favor of 
 persons or objects prohibited from taking,^ or given at a 
 time and in a manner forbidden, as in violation of the 
 statutes of mortmain, or similar statutes,* or where the gift 
 contravenes some policy of the law, as tending to a per- 
 petuity,^ or where it fails by the death of the beneficial 
 donee or cestui que trust,^ a trust, to the extent of the estate 
 given, will result to the donor, or his heirs, or legal repre- 
 sentatives, if it is not otherwise disposed of. If the pur- 
 poses of a trust fail or are completely performed, the 
 trustees hold the estate for the heirs at law as a resulting 
 
 1 Turner v. Russell, 10 Hare, 204 ; Cook r. Stationers' Co., 3 :M. & K. 
 262; Carrick v. Errington, 2 P. Wms. 361; TregonwL'U v. Sydenham, 3 
 Dow, 194; Arnold r. Chapman, 7 Ves. 108; Jones r. jNIitchell, 1 S. & S. 
 290; Page v. Leapingwell, 18 Ves. 463; Pilkington i\ Boughey, 12 Sim. 
 114 ; Gibbs v. Rumsey, 2 Ves. & B. 294; Stevens v. Ely, 1 Dev. Eq. 493; 
 Dashiel v. Att. Gen., 6 Har. & J. 1 ; Lemmond v. People, 6 Ired. Eq. 137. 
 
 - Williams v. Coade, 10 Ves. 300; Aokroyd v. Sinithson, 1 Bro. Ch. 
 .503; Spink v. Lewis, 3 id. 33.3; Hutcheson v. Hammond, id. 12^; 
 Muckleston v. Brown, 6 Ves. 63; Davenport v. Coltman, 12 Sim. 610; 
 Cruse V. Barley, 3 P. Wms. 22 ; Hawley v. James, 5 Paige, 318 ; Gwynn 
 V. Gwynn, 27 S. C. 526. 
 
 8 Carrick r. Errington, 2 P. Wms. 361 ; Davers r. Dewes, 3 id. 43. 
 
 * Att. Gen. v. Weymouth, Amb. 20 ; Jones r. Mitchell, 1 S. & S. 294; 
 Westr. Shuttleworth, 2 M. & K. 684; Acts 39 & 40 Geo. IV. c. 98; 
 Eyre >\ IMarsden, 2 Keen, 564 ; McDonald v. Bryce, id. 276 ; Lemmond 
 V. People, 6 Ired. Eq. 137. 
 
 ^ Tregonwell v. Sydenham, 3 Dow, 194 ; Leake v. Robinson, 2 Mer. 
 363 ; Marshall r. Holloway, 2 Swanst. 432 ; Southampton v. Hertford, 2 
 V. & B. 54; Curtis v. Lukin, 5 Beav. 147 ; Boughton r. James, 1 Call, 26; 
 1 H. L. Cas. 406; Brown r. Stoughton, 14 Sim. 369 ; Scari-sbrick v. Skel- 
 raersdale, 17 Sim. 187; Furrin r. Newcomb, 3 K. & J. 16. 
 
 8 Ackroyd v. Smithson, 1 Bro. Ch. 503 ; Cox v. Parker, 22 Beav, 188 ; 
 Barker v. Reilly, 4 Del. Ch. 72 ; Bond v. Moore, 90 N. C. 239. 
 
 (a) See Rudy's Estate, 185 Penn. 199,768; Farrington r. Putnam, 90 
 St. 359 ; Edson v. Bartow, 154 N. Y. Maine, 405 ; 10 Harv. L. Rev. 445. 
 
 21.3
 
 § 160 a."] RESULTING TRUSTS. [CHAP. V. 
 
 trust. ^ So if a trust for a particular purpose fail, by the 
 dissolution of a corporation, or other organized body, a trust 
 created for their particular benefit will result to the donor's 
 heirs.- All that the douor has not given out of himself 
 remains in him, and if he has not provided to whom the 
 property shall belong on failure or determination of the 
 trust, that right is still his, and he may convey the property 
 subject to the trust. ^ In all cases, if the trust arises or 
 results by presumption of law, it may be rebutted as to 
 instruments inter vivos by parol evidence that it was the 
 intention of the settlor that the donee should take the sur- 
 plus beneficially, or the whole estate if the trust failed in 
 toto ;^ but where the trust results, not by presumption of law 
 nor from the facts and circumstances, but from the con- 
 struction and force of a written instrument, no parol evi- 
 dence can be introduced to control such construction and 
 force. ° 
 
 § 160 a. In England, the heir and the next of kin or legal 
 representatives' are not the same persons, or they have not 
 the same rights and interests ; consequently questions of 
 some difficulty arise as to whether a trust in property results 
 to the heir, or to the next of kin, or the legal representa- 
 tives. The general rule is, if the property is real estate, 
 that the trust results to the heir; if personal property, to 
 the next of kin under the statutes of distribution, or to the 
 legal representatives. But su])pose a testator has devised 
 real estate in trust and directed it to be sold and the pro- 
 ceeds applied to purposes named, and the real estate is con- 
 verted into money, and the trust fails in whole or in part; 
 or suppose money is given in trust, and there is a direction 
 to invest it in lands, which is done, and the trust fails, to 
 whom does the trust result, to the heir as real estate, or to 
 
 1 Packard v. IMarshall, 138 Mass. 383. 
 
 2 Easterbrooks v. Tillinghast, 5 Gray, 17. 
 8 Schlessinger r. Mallard, 70 Cal. 326. 
 
 * Ante, §§ 139, 140, 145, 147; Cook v. Hutchinson, 1 Keen, .50, 
 ^ Ante, § 150; Langham v. Sauford, 17 Yes. 442. 
 
 214
 
 CHAP, v.] VOLUNTARY CONVEYANCE. [§ IGO a. 
 
 the next of kin as personal property ? Such questions are 
 not important in the United States, for the reason tiiat in 
 most if not all the States the same persons take both the 
 real and personal estate of an ancestor in the same jjropor- 
 tion and with the same rights, and it is comparatively unim- 
 portant whether the trust results as real or personal 
 property.' There is, however, one question still important 
 in the United States, and that is, does the trust result to the 
 heirs-at-law, or to the residuary devisees or legatees ? The 
 donor, settlor, or testator still retains such an interest in 
 proj)erty given by him in trust, that the interest which 
 results upon the failure of the trusts created by him may be 
 devised by him, and the question in each case is whether 
 the resulting interest becomes a part of the residue and 
 passes to the residuary legatee, if there is one, or whether 
 it passes to the heirs. The question may be stated in 
 another form, thus: has the testator died intestate as to the 
 interests which result to him upon a failure of the trusts, 
 or do the provisions of the will embrace such interests and 
 convey them to some person or persons, or class of persons 
 named ? The distinction between the heirs and the residuary 
 legatees is that the residuary legatees claim under the will, 
 and the heirs claim dehors the will. All the cases that can 
 arise must depend upon the intention of the donor or 
 settlors, and upon the construction of each particular will. 
 If the subject-matter of the bequest that fails is personal 
 estate, the residuary legatee will take all that results; for a 
 general residuary bequest is always held to carry every 
 interest, whether undisposed of in the will, or undisposed of 
 in any event. ^ Therefore it is only where the will contains 
 
 1 See all the English cases cited and the nice distinctions drawn, 
 Lewin on Trusts, 121-132 (5th ed.) ; Ilillon Trustees, 127-143. 
 
 ^ Dawson ?'. Clarke, 15 Ves. 417; Brown v. Higgs, 4 Yes. 708; S Yes. 
 570; Shanley v. Baker, 4 Yes. 732; Oke r. Heath, 1 Yes. 141 ; Carnl)ridge 
 V. Rous. 8 Yes. 25; Cooke v. Stationers' Co., 3 M. & K. 204; Bland v. 
 Bland, 2 J. & W. 400; Jones r. Mitchell, 1 S. & S. 298. Sir William 
 Grant said that it must be a very peculiar case indeed in which there 
 can be at once a residuary clause and a partial intestacy unless some 
 part of the residue be ill given. Leake v. Robiusou, 2 Mer. 302 ; King 
 
 215
 
 § 161.] RESULTING TRUSTS. [CHAP. V. 
 
 no residuary clause that the next of kin (or heirs in the 
 United States) can assert any claim. There is, however, 
 this obvious remark to be made : that if the residuum is 
 itself given upon a trust that fails, it of course results to the 
 next of kin or heirs. ^ But a different rule is applied at 
 common law to gifts of real estate. If real estate was 
 bequeathed upon trusts that were void, or that failed, the 
 real estate did not pass to the residuary devisee, but resulted 
 to the heir-at-law, for the reason that nothing passed by the 
 gift of the residue except what was intended to pass, and a 
 bequest of real estate for a particular purpose indicated a 
 plain intention not to embrace it in the residuary bequest, 
 and although it might be void or fail, yet it was so far 
 operative as to indicate the intention of the donor not to 
 allow it to pass under the residuary clause of the will. The 
 common law was altered by 1 Vict. Ch. 26, and real estate 
 is governed by the same rule as personal estate. ^ 
 
 § 161. It was formerly said that if a man conveyed his 
 estate to a stranger without consideration, or for a mere 
 nominal one, a trust resulted to the owner, on the ground 
 that the law would not presume a man to part with his 
 property without some inducement thereto. ^ This was in 
 
 V. Woodhull, 3 Edw. Ch. 79 ; Swinton v. Egleston, 3 Rich. Eq. 201 ; 
 Hamberlin v. Terry, 1 Sm. & M. Ch. 589 ; Johnson v. Johnson, 3 Ired. 
 Eq. 427 ; ]\Iarsh v. Wheeler, 2 Edw. Ch. 156 ; Com. v. Nase, 1 Ashra. 
 242 ; "Woolmer's Est., 3 Whart. 879 ; Taylor v. Lucas, 4 Hawks, 215 ; Pool 
 V. Harrison, 18 Ala. 515; Vick y.McDauiel,3 How. (Miss.) 337; Bryson 
 r. Nichols, 2 Hill, Ch. 113. 
 
 1 Skrymsher v. Northcote, 1 Swanst. 566 ; McDonald v. Bryce, 2 Keen, 
 276 ; Eyre v. Marsden, 2 Keen, 564 ; Woolmer's Est., 3 Whart. 477 ; John- 
 son V. Clarkson, 3 Rich. Eq. 305; Salt v. Chattaway, 3 Beav. 576; Floyd 
 V. Barker, 1 Paige, 480 ; Frazier v. Frazier, 2 Leigh, 642 ; Trippe v. 
 Frazier, 4 II. & J. 446. 
 
 2 In the United States there is considerable variety in the decisions of 
 the courts, if not some uncertainty in the law, where it is not determined 
 by statute. See a very learned discussion of the law in New York in 
 Van Kluck v. Dutch Reformed Church, 6 Paige, 600; 20 Wend. 458. In 
 Massachusetts, Ilayden v. Stoughton, 5 Pick. 528 ; Brigham v. Shattuck, 
 10 Pick. 306; Clapp v. Stoughton, id. 463 ; 4 Kent Cora. 541. 
 
 « Lewin on Trusts, 116 (5th Loud, ed.), aud cases cited; Tolar v. 
 216
 
 CHAP, v.] VOLUNTARY CONVEYANCE. [§ 162. 
 
 strict analogy to the common law, whereby, if a feoffment was 
 made without consideration, the legal title only passed to 
 the feoffee, and a use resulted to the feoffor.' In conform- 
 ity with this rule, Mr. Cruise lays it down, that if the legal 
 estate in lands is conveyed to a stranger without any con- 
 sideration, there arises a resulting trust to the original 
 owner; 2 for where there is neither consideration, nor decla- 
 ration of use, to show the intention of the parties, it cannot 
 be supposed that the estate was intended to be given away.^ 
 And the burden was put upon the grantee to show the con- 
 sideration, and upon failure of proof, a use was presumed to 
 the grantor, for the reason, as stated by Sir Francis Bacon, 
 that when feoffments were made, it grew doubtful whether 
 estates were in use or purchase ; and as purchases were 
 things notorious, and uses were things secret, the Chan- 
 cellor thought it more convenient to put the purchaser to 
 prove his consideration than the feoffor to prove his trust, 
 and so made intendment toward the use, and put the pur- 
 chaser to the proof of his purchase.* To the same effect are 
 Coke on Littleton and many of the older, and some of the 
 more modern, authorities.^ 
 
 § 162. But the rule that a trust resulted to the grantor 
 upon a voluntary conveyance was confined to common-law 
 conveyances or assurances, such as feoffments, grants, fines, 
 recoveries, and releases which operated without considera- 
 tion, and vested the estate in the alienee by the act itself, as 
 
 Tolar, 1 Dev. Eq. 456; 2 Story, Eq. Jur. § 1199; Cecil v. Butcher, 2 J. & 
 W. 573 ; Souerbye v. Ardeii, 1 Johns. Ch. 246. 
 
 1 Dyer v. Dyer, 2 Cox, 92 ; Pinney v. Fellows, 15 Vt. 538 ; Botsford v. 
 Burr, 2 Johns. Ch. 405. 
 
 2 Cruise, Dig. tit. 12, c. 1, § 52; tit. 11, c. 4, § 16. 
 8 Cruise, Dii;-. tit. 11, c. 4, § 16 et seq. 
 
 * Bacon on Uses, 317. 
 
 6 1 Inst. 23 a, 271 a ; Dyer, 166 a, 186 h ; 11 Mod. 182 ; Cleve's Case, 6 
 Rep. 17 b ; Woodliffe r. Drury, Cro. Eliz. 439; Duke of Norfolk r. Brown, 
 Pr. Ch. 80; Warman v. Seaman, 2 Ereem. 308 ; Hayes v. Kingdonic, 1 
 Vern. 33; Grey v. Grey, 2 Swanst. 598 ; Elliot v. Elliot, 2 Ch. Cas. 232 ; 
 Att. Gen. v. Wilson, 1 Cr. & Ph. 1 ; Sculthorpe v. Burgess, 1 Yes. Jr. 92; 
 Tyrrell's Case, 2 Freem. 304; Ward v. Lant, Pr. Ch. 182. 
 
 217
 
 § 162.] 
 
 EESULTING TRUSTS. 
 
 [chap. V. 
 
 by livery of seizin ; ^ although it was always doubtful whether 
 a use could result from a conveyance by lease and release, 
 even though it was voluntary, and no uses were declared; 
 for the extinguishment of the estate of the lessee was a good 
 consideration, yet such a conveyance was a strict common- 
 law conveyance.^ This rule does not apply to modern con- 
 veyances, and no trust is now held to result to a grantor 
 although he conveys his estate without consideration. ^ (a) 
 
 1 Cruise, Dig. tit. 11, c. 4, § 16. 
 
 2 Cruise, Dig. tit. 32, c. 11, § 17. 
 
 3 Hutchins v. Lee, 1 Atk. 447 ; Lloyd v. Spillett, 2 Atk.150; Young v. 
 Peachy, id. 257 ; Burn v. Winthrop, 1 Johns. Ch. 329 ; Graff v. Rohrer, 
 35 Md. 327; Hogan v. Jaques, 19 N. J. Eq. 123; Bust v. Wilson, 28 Cal. 
 632; Jackson v. Cleveland, 15 Mich. 94; Ownes v. Ownes, 23 N. J. Eq. 
 60. But see McKenney v. Burns, 31 Ga. 295, and Haigh v. Kaye, L. R. 
 7 Ch. 469 ; Blodgett v. Hildreth, 103 Mass. 486 ; Stevenson v. Crapnell, 
 114 111. 19. 
 
 (a) In Re Duke of Marlborough, 
 [1894] 2 Ch. 133, where an American 
 wife voluntarily conveyed her house 
 to her husband to enable him to 
 mortgage it in his own name, the 
 decision in Haigh v. Kaye was con- 
 sidered as of higher authority than 
 Leman v. Whitley, which was also 
 questioned in Sugden on Vendors 
 (14th ed.), p. 702 ; and it was held 
 that, the husband having died with- 
 out reconveying to her, though ap- 
 parently not unwilling to do so, the 
 wife was entitled to a reconveyance. 
 In Rochefoucauld r. Boustead,[1897] 
 1 Ch. 196, it was likewise held that 
 the statute of frauds does not ex- 
 clude evidence of a fraud, as when 
 a person to whom land is conveyed 
 as a trustee, and who knows it was 
 so conveyed, denies the trust and 
 claims the land as his own. Hence 
 one who claims land conveyed to 
 another may prove by parol evidence 
 that it was so conveyed on trust for 
 the claimant, and may obtain a de- 
 218 
 
 claration that the grantee is a trustee 
 for him ; that such a trust is an ex- 
 press trust, and the statute of lim- 
 itations is not a defence to the 
 claim. 
 
 In Indiana, even where there is 
 no fraud or misrepresentation up to 
 the time a voluntary conveyance is 
 made, there is held to be a resulting 
 trust for the grantor, when good 
 faith so requires. Myers v. Jack- 
 son, 135 Ind. 136 ; Giffen v. Taylor, 
 139 Ind. 573. See Nashville Trust 
 Co. V. Lannon (Tenn. Ch.) 3G S. 
 W. 977 ; Bowler v. Curler, 21 Nev. 
 158 : Larmon v. Knight, 140 111. 
 232. In California, where husband 
 and wife may contract with each 
 other, and undue influence is not 
 presumed when one conveys prop- 
 erty to the other, want of considera- 
 tion does not establish a resulting 
 trust in the case of a voluntary con- 
 veyance by one of them to the other. 
 Tillaux V. Tillaux, 115 Cal. 663. 
 In Massachusetts, after a voluntary
 
 CHAP, v.] VOLUNTARY CONVEYANCE. [§ 162. 
 
 At the present day almost all conveyances are in form deeds 
 of bargain and sale, and operate to pass the estate by virtue 
 of the statute of uses, or of statutes in the several States 
 prescribing the formalities necessary to convey lauds. 
 Under the statute of uses, the bargain between the bargainor 
 and the bargainee, and the consideration, raised a use in the 
 bargainee; the statute immediately stepped in and vested 
 the legal title in the same person for whom a beneficial use 
 had been raised by the bargain. In conveyances that are in 
 form deeds of bargain and sale, parol evidence cannot be 
 received to control or contradict the statement of the con- 
 sideration. Such a statement is a solemn and essential part 
 of the deed, and its existence cannot be disproved by parol,* 
 although it is allowed so far to control the statement as to 
 the payment of it, as to show that it still exists as a debt 
 due from the grantee to the grantor. ^ (a) And so in States 
 
 1 Leman v. Whitley, 4 Russ. 423 ; Philbrook r. Delano, 29 Maine, 
 410 ; Graves v. Graves, 29 N. H. 129 ; Randall v. Phillips, 3 Mason, 388 
 Hutchinson i'. Tindall, 2 Green, Ch. 357; Alison v, Kurtz, 2 Watts, 187 
 Wilkinson v. Wilkinson, 2 Dev. Eq. 376; Morris v. Morris, 2 Bibb. 311 
 Movan v. Hayes, 1 Johns. Ch. 339 ; Rathbun v. Rathbun, G Barb. 98 
 Balbeck v. Donaldson, 6 Am. Law. Reg. 118; Graff v. Rohrer, 35 Md. 327 
 
 - Leman i'. Whitley, 4 Russ. 423 ; Graves v. Graves, 29 N. H. 129 
 Philbrook v. Delano, 21 Maine, 420; Randall v. Phillips, 3 Mason, 388 
 Thomas v. McCorniack, 9 Dana, 188 ; Radsall v. Radsall, 9 Wis. 379 
 Farrington v. Barr, 30 N. H. m. 
 
 conveyance, untainted by fraud, un- Goldsmith v. Goldsmith, 145 N. Y. 
 
 affected by any written declaration 313 ; Lamb v. Lamb, 46 N. Y. S. 
 
 of trust, and without consideration, 219 ; Hutchinson v. Hutchinson, 84 
 
 even though there is an oral agree- Hun, 482 ; see Lovett xk Taylor, 54 
 
 ment that the grantee holds the N. J. Eq. 311. 
 
 land in trust, the grantor cannot (a) The consideration expressed 
 
 avoid the deed for fraud, accident, in a deed is open to parol explana- 
 
 or mistake. Fitzgerald v. Fitzger- tiou for most purposes, but a want 
 
 aid, 1(58 Mass. 488. In New York, of consideration cannot be shown 
 
 a voluntary trust is declared and against the recital of the deed to 
 
 enforced only when a confidential establish a resulting trust in the 
 
 relation is alleged to have been taken grantor. Bobb v. Bobb, 89 ]\lo. 
 
 advantage of, in which case the 411; Weiss v. Heitkamp, 127 
 
 donee is required to show clearly Mo. 23. 
 fair dealing and absence of fraud. 
 
 219
 
 § 162.] KESULTING TRUSTS. [cHAP. V. 
 
 where it is declared by statute, as in Massachusetts,^ that 
 deeds duly executed, acknowledged, and recorded shall be 
 effectual to pass the estate without other ceremony, it is not 
 competent to control the effect of such deeds by parol, or to 
 engraft uses, trusts, or other limitations upon them not con- 
 tained in the instruments themselves, or in some other 
 instrument executed before or at the same time with them, 
 in such manner as to become a part of them.^ To allow 
 parol evidence to raise a resulting trust upon such deeds 
 would be to break in upon the express provisions of the 
 statute of frauds. Mr, Hill states the modern rule correctly 
 when he says,^ "that it is the clear result of the authorities 
 that where a person, a stranger in blood to the donor, and 
 a fortiori if connected with him in blood, is in possession of 
 an estate under a voluntary conveyance duly executed, the 
 mere fact of his being a volunteer will not of itself create 
 any presumption that he is a trustee for the grantor; but he 
 will be considered entitled to the enjoyment of the beneficial 
 interest unless that title is displaced by sufficient evidence 
 of an intention on the part of the donor to create a trust, 
 and he need not bring proofs to keep his estate, but the 
 plaintiff must bring proofs to take it from him."* And 
 where the deed contains a clause, as most deeds do, that the 
 
 1 Gen. Stat. c. 89, § 1. 
 
 3 Gerry V. Stimson, 60 Maine, 186; Philbrook v. Delano, 29 id. 410 
 Titcomb v. Morrill, 10 Allen, 15; Bartlett v. Bartletfc, 14 Gray, 278 
 Walker u. Locke, 5 Cush. 90; Blodgett v. Hildreth, 103 Mass. 484 
 Games v. Colburn, 104 Mass. 274 ; Whitton v. Whitton, 3 Cush. 191 
 Graves v. Graves, 29 N. H. 129 ; Rathbun v. Rathbun, 6 Barb. 105 ; Bank 
 of U. S. V. Housman, 6 Paige, 526 ; Miller v. Wilson, 15 Ohio, 108 ; 
 Parnell v. Kingston, 3 Sm. & Gif. 337 ; Taylor v. Taylor, 1 Atk. 386 ; 
 Dyeri7. Dyer, 2 Cox, 93 ; Fordyce w. Wallis, 3 Bro. Ch. ,576; Squire w. 
 Harder, 1 Paige, 494 ; Balbeck v. Donaldson, 6 Am. Law Reg. 148 ; Jack- 
 son i'. Garnsey, 16 Johns. 189; Jackson v. Caldwell, 1 Cow. 622 j Far- 
 rington v. Barr, 36 N. H. 431. 
 
 8 Hill on Trustees, 170 (4th Am. ed.). 
 
 * Cook V. Fountain, 3 Swanst. 590 ; Clavering v. Clavering, 2 Vern. 
 473; Boughton v. Boughton, 1 Atk. 625; Cecil v. Butcher, 2 Jac. & W. 
 573 ; Jeffreys v. Jeffreys, 1 Cr. & Ph. 138; Dummer v. Pitcher, 2 M. & K. 
 262 ; Leman v. Whitley, 4 Russ. 423 ; Graff v. Rohrer, 35 Md. 327. 
 220
 
 CHAP, v.] 
 
 VOLUNTARY CONVEYANCE. 
 
 [§ 1G3. 
 
 estate is had and held to the grantee, his heirs and assigns, 
 to Ids and their use mid behoof, no trust can result, as it is 
 a rule that when a use is declared, no other use can be 
 shown to result.' (a) A fortiori a trust deed cannot be 
 turned into a resulting trust for the grantor by proof that 
 it was without consideration.^ And when a deed contains 
 covenants of warranty, no use can result to the grantor, for 
 such covenants estop him from claiming any legal or bene- 
 ficial interest in the estate.^ 
 
 § 1G3. It may be stated that courts do not favor voluntary 
 conveyances, and will not lend their aid to enforce them if 
 they arc imperfectly executed, and their decrees are neces- 
 sary to give them validity and force. In such cases equity 
 will not interfere, but will leave the parties to their rights 
 at law.* {h) And, further, equity will always look upon 
 
 1 Graves v. Graves, 29 N. H. 129; Sprague v. Woods, 4 "Watts & S. 
 192; Vaiidervolgen v. Yates, 5 Seld. 219 ; Gove v. Leaioyd, 140 Mass. 524. 
 
 2 Bobb V. Bobb, 89 Mo. 419. 
 
 8 Philbrook v. Delano, 29 Maine, 410. 
 * Lane v. Ewing, 31 Mo. 75. 
 
 (a) Lovett v. Taylor, 54 N. J. 
 Eq. 311. 
 
 (li) See Rogers v. Rogers (R. I.), 
 39 Atl. 7.15 ; supra, § 97, note (a). 
 lu voluntary gifts, equity does not 
 aid iu perfecting a gift, but the 
 cestui que trust acquires, upon a de- 
 claration of trust, an absolute, equi- 
 table estate or title, and not a mere 
 right to ask for a title; and when 
 there is a valuable consideration, a 
 contract to declare a trust may in 
 equity be deemed equivalent to an 
 actual declaration. Wittingham v. 
 Lightliipe, 40 N. J. Eq. 429; Janes 
 V. Falk, 50 id. 468, 472; Smith's 
 Estate, 144 Penn. St. 428 ; William- 
 son V. Yager, 91 Ky. 282 ; McCreary 
 V. Gewinner (Ga.), 29 S. E. 960. 
 Although a parol agreement to exe- 
 
 cute a trust cannot be enforced, and 
 a mere refusal to perform a contract 
 is not in itself a fraud, yet when 
 property is conveyed in reliance on 
 its fulfilment, equity will not per- 
 mit a party to consummate a fraud 
 by retaining it without considera- 
 tion and in violation of his agree- 
 ment. Randall v. Constans, 33 
 IMinn. 329; Thompson v. Marley, 
 102 Mich. 476 ; Whitehouse v. 
 Whitehouse, 90 Maine, 468; In re 
 IMcAuley's Estate, 184 Penn. St. 
 124 ; Dougherty v- Shillingsburg, 
 175 id. 50 ; McCartney v. Ridgway, 
 160 111. 129; Forney v. Reniey, 77 
 Iowa, 549 ; First Nat. Bank v. 
 Fries, 121 N. C. 241. 
 
 An unconditional gift made by a 
 person in extremis may take effect as 
 
 221
 
 § 164.] 
 
 RESULTING TRUSTS. 
 
 [chap. V. 
 
 such conveyances with suspicion, especially if made to 
 strangers for no particular purpose. If any fraud or mis- 
 representation is practised upon a grantor, equity will fasten 
 a trust upon the conscience of the fraudulent grantee.^ If 
 fraud upon the grantor is alleged, the fact that the convey- 
 ance was without consideration is always considered as 
 pertinent evidence, and will be considered as one badge of 
 fraud, if there are other facts and circumstances pointing 
 in that direction,^ A disposition by will, however, is not 
 subject to these rules, as a gift by will imports a considera- 
 tion, and no averments by parol can be received to fasten a 
 use or trust upon such gift; but the donee will "take both 
 the legal and beneficial estate, unless it clearly appears from 
 the whole will that such was not the intention of the donor. ^ 
 
 § 164. It is further to be observed that voluntary convey- 
 ances to a wife or child were never within the rule that such 
 gifts raised a resulting trust for the donor. In conveyances 
 of this kind to the donor's family the analogy of the common 
 law was followed, whereby, if a feoffment was made to a 
 stranger without consideration, a use resulted to the feoffor; 
 but if a feoffment was made to a wife or child, no use 
 
 1 Post, Chap. VI. 
 
 2 Post, § 187. 
 
 8 Ante, § 94. 
 
 a gift inter vivos. Henschel v. Maurer, 
 69 Wis. 576. A gift inter vivos, and 
 a voluntary trust, which is an equi- 
 table gift, must both be completed 
 by delivery, while a trust requires 
 only a declaration. Bath Savings 
 Inst'n V. Hatliorn, 88 Maine, 122, 
 125. A voluntary contract to create 
 a trust will not be enforced or per- 
 fected in equity so far as it remains 
 executory. Norway S. Bank v. 
 Meniam, 88 Maine, 146; Landon 
 V. Hutton, 50 N. J. Eq. 500. In 
 equity a voluntary trust is enforce- 
 able even when the cestui que trust 
 does not assent to or know of it. 
 222 
 
 Connecticut River S. Bank v. Albee, 
 64 Vt. 571 ; Williams v. Haskius, 
 66 Vt. 378 ; Cathcart v. Xelson, 70 
 Vt. 317 ; Maloney v. Tilton, 51 N. Y. 
 S. 19. When executed, it is irrev- 
 ocable. In re Soulard, 141 Mo. 642 ; 
 Landon v. Hutton, 50 N. J. Eq. 500; 
 Polk I'. Boggs, 122 Cal. 114. 
 
 A writing, which shows intention 
 to make an absolute gift, but is not 
 delivered, will not be treated as 
 valid as a declaration of trust. 
 Norway S. Bank v. Merriam, 88 
 Maine, 146; Wadd v. Hazelton, 137 
 N. Y. 215; Sprague v. Thurber^ 17 
 R. I. 454, 458.
 
 CIIAP. v.] VOLUNTAUY CONVEYANCE. [§ 1G5. 
 
 resulted, for the consideration of blood was held a good 
 consideration, and an advance or settlement was presumed. 
 So marriage was not only a good but a valuable considera- 
 tion, and no trusts could result from conveyances made in 
 consideration of marriage, either of the grantor or of any 
 member of his family. But if voluntary conveyances to 
 wife or children were made by a man deeply indebted, or 
 with an intention to delay his creditors, while he could not 
 raise a trust in his own favor, yet his creditors could avoid 
 the conveyances or raise a trust upon them in their own 
 favor to the extent of their claims.* 
 
 § 165. If the voluntary conveyance is made for some 
 illegal or fraudulent purpose, whether it is a common-law or 
 a modern conveyance, no trust will result to the grantor; as, 
 if the voluntary conveyance is made to delay, hinder, and 
 defeat creditors,^ or to give a man a colorable qualification 
 to vote, or to sit in parliament,^ or to kill game,^ or to dis- 
 qualify the grantor for an office,^ or to commit any other 
 fraud, ^ for the reason that the rules of law cannot be used, 
 
 1 Dunnica v. Coy, 28 Mo. 5-25 ; Spirett v. Willows, 3 De G., J. & S. 
 293 ; Robinson v. Robinson, 17 Ohio St. 430 ; Baldwin v. Cainpfield, 4 
 Halst. Ch. 891 ; Spicer v. Ayers, 2 N. Y. Sup. Ct. 626. 
 
 2 Cottington v. Fletcher, 2 Atk. 156 ; Chaplin v. Chaplin, 3 P. Wms. 
 233; Muckleston v. Brown, 6 Yes. 08; Stewart v. Iglehart, 7 Gill & J. 
 132 ; Bryant v. Mansfielil, 22 I\Iaine, 310 ; Randall v. Phillips, 3 Mason, 
 378 ; "Wilson v. Cheshire, 1 ^IcCord, 2:33 ; Mason v. Baker, 1 A. K. Marsh. 
 208 ; Chaniberlayne v. Temple, 2 Rand. 381: ; Stewart v. Dailey, 6 Litt. 
 212 ; Jackson v. Dutton, 3 Har. 98; McClure v. Puree!, 3 A. K. Marsh. 
 61 ; Steele v. Worthington, 2 Ilam. 82. 
 
 8 Pitt's Case, cited Anib. 260; Curtis v. Perry, 6 Ves. 7-47 ; Cutler v. 
 Tuttle, 19 N. J. Ch. .553, 502. 
 
 ■* Roberts v. Roberts, Daniel, 143; Brackeubury v. Brackenbury, 2 
 Jac. & W. 391 ; Cecil v. Butcher, id. 565. 
 
 6 Birch V. Blagrave, Amb. 264 ; Gaskell v. Gaskell, 2 Y. & J. 
 502 ; Vandenberg v. Palmer, 4 K. & J. 204 ; Childers r. Childers, 1 
 De G. & J. 482; Field v. Lonsdale, 13 Beav. 78 ; Doe c Rutledge, Cowp. 
 705. 
 
 8 Tipton V. Powell, 2 Cold. 19 ; Haigh v. Kaye, L. R. 7 Ch. 4731 
 Ownes V. Ownes, 23 N. J. Eq. 60 ; Miller v. Davis, 50 Mo. 572. 
 
 223
 
 § 165 a.] KESULTING TRUSTS. [CHAP. V. 
 
 controlled, or avoided by parties with a fraudulent intent to 
 do that indirectly which they cannot do directly.^ 
 
 § 165 a. A resulting trust is to be performed or executed 
 by the trustee by transferring the title to the cestui que trust 
 at his request; 2 but if the trustee has incurred any expenses 
 upon the estate by paying taxes or making improvements, or 
 advancing part of the purchase-money, he will be allowed to 
 hold the estate until his advances are repaid.^ 
 
 1 Scobie V. Blanchard, 3 N. H. 170 ; Pritchard v. Brown, 4 N. H. 401 ; 
 Hutchins v. Heywood, 50 N. H. 488 ; Sugd. V. & P. 416. 
 
 2 Millard v. Hathaway, 27 Cal. 119. 
 
 3 Mahoy v. Sloans, 44 Vt. 311. 
 
 224
 
 CHAP. VI.] CONSTRUCTIVE TRUSTS. 
 
 CHAPTER VI. 
 
 CONSTRUCTIVE TRUSTS. 
 
 § 166. General nature of constructive trusts. Thev arise from fraud. 
 
 § 167. Jurisdiction of equity over them, and the relief given by converting the 
 offending party into a trustee. 
 
 § 168. Classification of constructive trusts. 
 
 § 169. General definition of a fraud in equity. 
 
 § 170. Principles upon which equity gives relief against fraud. 
 
 § 171. Actual fraud, or sugijestio falsi. 
 
 § 172. Illustrations of actual fraud. 
 
 § 173. The misrepresentations and frauds that equity will relieve against. 
 
 § 1 74. The misrepresentation must be of facts material to the contract. 
 
 § 175. The misrepresentation must be of something peculiarly within 
 
 the party's knowledge. 
 
 § 176. The relief will depend ujjon the form in which it is sought. 
 
 § 177. Fraud that arises from concealment, or suppressio veri. 
 
 § 178. This kind of fraud depends much upon the relation of the parties. 
 
 § 179. When a person may not be silent. 
 
 § 180. Suppressio veri Is generally in law an affirmative act. 
 
 § 181. Courts will relieve where acts are fraudulently prevented from being 
 done — illustrations. 
 
 § 1 82. Trust established where a party fraudulently prevents a will from 
 
 beinjj made in another's favor. 
 
 § 183. Trust established in odium spolintoris. 
 
 § 184. Trust established upon a conveyance made in ignorance or mistake. 
 
 § 185. But if the conveyance is a compromise, courts will support it if possible. 
 
 § 186. Trust established when a deed by mistake contains more land than was 
 intended. 
 
 § 187. Misrepresentation of the value of property and inadequacy of considera- 
 tion. 
 
 § 188. Catching bargains with young heirs and reversioners. 
 
 § 189. Trust arising from mental incapacity or imbecility of parties. 
 
 § 190. Mental weakness — old age. 
 
 § 191. Drunkenness. 
 
 § 192. Duress — oppression and distress. 
 
 § 193. Where several of these circumstances are found combined. 
 
 § 194. Frauds that arise by construction from the fiduciary relations of parties. 
 
 § 195. Between tnustee and cestui que trust. 
 
 § 196. Renewal of leases in his own name by trustee. 
 
 §§ 197, 198. Contracts prohibited between trustee and cestui que trtist, but the 
 cestui que tmst alone can avoid them. 
 
 § 199. Rule does not apply to dry trustees. 
 
 VOL. I. — 15 225
 
 § 166.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 § 200. Guardians and wards. 
 
 § 201. Parents and children. 
 
 §§ 202, 203. Attorney and client. 
 § 204. Kule ajjplies to all confidential advisers. 
 
 § 205. Administrators and executors. 
 
 § 206. Princi{)al and agent. 
 
 § 207. Directors of corporations. 
 
 § 208. Trusts that arise out of inducements held out for marriage. 
 
 § 209. Other fiduciary relations. 
 
 § 210. Undefined fitluciary and friendly relations. 
 
 § 211. Trusts arising from the frauds of third persons. 
 § 212. Frauds upon third persons as creditors, etc. 
 
 § 213. Conveyances by man or woman on the point of marriage. 
 
 § 214. Illegal and immoral contracts. 
 
 § 215. Fraud by pretending to buy for another. 
 
 § 216. Devises or conveyances upon secret illegal trusts. 
 
 § 217. Purchases from trustees with knowledge of the trusts. 
 
 § 218. Purchases without notice of the trust. 
 
 § 219. The safeguards thrown around such purchases. 
 
 § 220. The consideration in such cases. 
 
 § 221. The consideration must have been actually paid. 
 
 § 222. Notice of the trust — to whom it may be. 
 
 § 223. Notice may be actual or constructive. 
 
 § 224. Purchase of property from executors or administrators — real estate. 
 
 § 225. Personal property. 
 
 § 226. Constructive trusts may be proved by parol — statute of frauds does not 
 
 apply. 
 § 227. The right to set aside a conveyance for fraud is an equitable estate that 
 
 may be conveyed and devised. 
 §§ 228-230. Statute of frauds and the time within which steps must be taken to 
 
 avoid a fraudulent conveyance. 
 
 § 166. The trusts thus far considered arise from the express 
 agreements and intentions of the parties, or from their inten- 
 tions imjjJied from their agreements, or result from their 
 express or implied agreements, (a) These trusts arise, 
 
 (a) As to the distinction be- conveyance secretly, contrary to the 
 
 tween express and constructive beneficiary's wishes, in violation of 
 
 trusts, see Cunningham v. Foot, 3 his duty to him, and in fraud of his 
 
 A. C. 984 ; Price v. Phillips, 13 Rep. rights, the trust is a constructive or 
 
 (Eng.)191; Culbertson v. The H. involuntary trust, and not a result- 
 
 Witbeck Co., 127 U. S. 326. Usu- ing trust. Farmers' and Traders' 
 
 ally there is no element of inten- Bank v. Kimball Milling Co., 1 So. 
 
 tional fraud in a resulting or im- Dak. 388, 393 ; Buck v. Swazey, 35 
 
 plied trust, but the law presumes Maine, 41 ; 56 Am. Dec. 681 ; 
 
 the intent from the facts and cir- Giles v. Anslow, 128 111. 187 ; May- 
 
 cumstances accompanying the field v. Forsyth, 164 111. 32; Thonip- 
 
 transaction. When one takes a son v. Marley, 102 Mich. 476 ; 
 226
 
 CHAr. VI.] 
 
 CONSTRUCTIVE TRUSTS. 
 
 [§ 166. 
 
 result, or arc implied from the contracts and relations of 
 the parties. The intention of the parties as manifested in 
 contracts made in good faith is the foundation of them. 
 There is another large class of trusts which arise from frauds 
 committed by one party upon another. Thus, if one party 
 procures the legal title to property from another by fraud or 
 misrepresentation or concealment, or if a party makes use 
 of some influential or confidential relation which he holds 
 towards the owner of the legal title, to obtain such legal 
 title from him upon more advantageous terms than he could 
 otherwise have obtained it, equity will convert such party 
 thus obtaining property into a trustee. If a person obtains 
 the legal title to property by such arts or acts or circum- 
 stances of circumvention, imposition, or fraud, or if he 
 obtains it by virtue of a confidential relation and influence 
 under such circumstances that he ought not, according to the 
 rules of equity and good conscience as administered in chan- 
 cery, to hold and enjoy the beneficial interest of the property, 
 
 Wilmoth V. Wilmoth, 34 W. Va. 
 426 ; Curreiice v. Ward, 43 W. Va. 
 307 ; Barger v. Barger, 30 Oregon, 
 2G8 ; Sale v. Thornberry, 86 Ky. 
 266 ; Ramsey v. Ramsey (N. C), 31 
 S. E. 83.5. 
 
 A constructive trust arising from 
 a wrongful purchase in one's own 
 name with another's funds is not 
 merely a right or cause of action 
 personal to the beneficiary, author- 
 izing him to sue for, and thereby 
 acquire an estate in the land, but, 
 like a resulting trust proper, or the 
 equity of redemption of a mortira- 
 gor after forfeiture, it is, in and of 
 itself, an equitable estate, vendible 
 and descendible as any other in- 
 terest in lands, and capable of being 
 executed into a legal estate by the 
 decree of a court of equity, at the 
 suit of the beneficiary, or any one 
 in privity with him, in blood or 
 
 estate. Sanford v. Ilamner, 115 
 Ala. 406, 416. 
 
 When the object of a bill in 
 equity is single, the subject-matter 
 the same, and the appropriate pray- 
 ers for relief not inconsistent, a bill 
 is not necessarily multifarious, 
 which in one aspect shows an ex- 
 press trust arising from the con- 
 tract, in another a purely result- 
 ing trust, and in another the use 
 of the assets of a cestui que trust by 
 a trustee in payment of property to 
 which he took title in his own name, 
 althougli the rights of the party 
 whose money was used are not sub- 
 ject in all respects to the same prin- 
 ciples of law. Kelly v. Browning, 
 113 Ala. 420, 444 ; Graves r. Cor- 
 bin, 132 U. S. 571, 586; Mills v. 
 Ilurd, 32 Fed. Rep. 127; Kelley v. 
 Boettcher, 85 id. 55. 
 
 227
 
 § 166.] CONSTRUCTIVE TRUSTS. [CIIAP. VI. 
 
 courts of equity, in order to administer complete justice be- 
 tween the parties, will raise a trust by construction out of 
 such circumstances or relations ; and this trust they will 
 fasten upon the conscience of the offending party, and will 
 convert him into a trustee of tlic legal title, and order him to 
 hold it or to execute the trust in such manner as to protect 
 the rights of the defrauded party and promote the safety and 
 interests of society.^ Such trusts are called constructive trusts. 
 They differ from other trusts in that they are not within the 
 intention or contemplation of the parties at the time the con- 
 tract is made from which they are construed by the court, but 
 they are thrust upon a party contrary to his intention and 
 against his consent. The reason is that courts of equity have 
 a large jurisdiction over all matters of trust and confidence. 
 They control and direct their administration, and in certain 
 cases they annul and put an end to them by directing the 
 trustee to convey the trust property to the person beneficially 
 interested. They can also remove the trustees and appoint 
 new ones. Therefore, courts of equity by raising a trust by 
 construction in cases of fraud can do equal and complete 
 justice between the parties. By this fiction of a constructive 
 trust courts of equity have great powers. They can order the 
 constructive trustee to hold the legal title for the original 
 owner upon just and proper terms. If he has paid any value 
 for the legal estate, they can order the estate to stand as 
 security for it ; they can order accounts to be taken and 
 settled ; ^ they can decree a reconveyance of the property, or 
 they can put an end to the trust by declaring the conveyances 
 to the constructive trustee to be null and void, and order that 
 they be surrendered up and cancelled. In all such cases the 
 relief is really founded on fraud and not on constructive trust. 
 When it is said that the person who fraudulently receives or 
 
 1 Thompson v. Thompson, 16 Wis. 91; McLane v. Johnson, 43 Vt. 48; 
 Pillow V. Brown, 20 Ark. 240; Collins v. Collins, 6 Lans. 368; Hollings- 
 hed V. Simms, 51 Cal. 158 ; Hendrix v. Nunn, 46 Tex. 141 ; Kayser v. 
 Maugham, 8 Col. 232; Johnson v. Giles, 69 Ga. 652. 
 
 2 Thompson v. Thompson, 16 Wis. 91 ; McLane v. Johnson, 43 Vt. 
 48; Colhns v. Collins, 6 Lans. (N. Y.) 368. 
 
 228
 
 CHAP. VI.] CONSTRUCTIVE TRUSTS. [§ 166. 
 
 possesses himself of trust property, or who has defrauded 
 another of his estate by misrepresentation, concealment, or 
 other fraudulent practices, is converted by the court into a 
 trustee and ordered to account for or rcconvey the property, 
 the expression is used for the purpose of describing the nature 
 and extent of the remedy against him, and it denotes that the 
 parties defrauded or beneficially entitled have the same rights 
 and remedies against him as they would be entitled to against 
 an express trustee who had fraudulently committed a ])reacli 
 of the trust. Generally speaking, the constructive trusts de- 
 scribed in this chapter are not trusts at all in the strict and 
 proper signification of the word " trusts ; " but as courts are 
 agreed in administering the same remedy in a certain class 
 of frauds as are administered in fraudulent breaches of trusts, 
 and as courts and the profession have concurred in calling 
 such frauds constructive trusts, there can be no misapprehen- 
 sion in continuing the same phraseology, while a change might 
 lead to confusion and misunderstanding.^ (a) 
 
 ^ See Westbury, Lord Chancellor, in Rolfe v. Gregory, 4 De G., J. & 
 S. 679. 
 
 (o) See San ford v. Sanford, 139 trustee thereof for the benefit of the 
 
 U. S. G42; Benedict v. Moore, 70 equitable title. Bailey v. Winn, 
 
 F. K. 472 ; Aborn v. Padelford, 17 101 Mo. 649 ; Indiana, &c. K. 
 
 II. I. 143; Stanford^. Mann, 1G7 Co. v. Swannell, 157 111. 616; 
 
 III. 79; Lewis /•. Liiidley, 19 Mont, see In re Champion, [1893] 1 Ch. 
 42-2; Pugh i\ Miller, 126 Ind. 189 ; 101; 67 L. T. 344; 91 L. T. 
 Giffeii V. Taylor, 139 Ind. 573 ; Kelly J. 57. And if he fraudulently 
 (.-. Browning, 113 Ala. 420; Tecum- conveys it to a purchaser in 
 seh Nat. Bank v. Russell, 50 Neb. good faith, he holds the proceeds 
 277 ; Walker v. Daly, 80 Wis. 222 ; and the interest thereon in trust, 
 Davis V. Settle, 43 W. Va. 17 ; such proceeds being considered 
 Shoufe V. Griffiths, 4 Wash. 161 ; in equity as the land itself. Val- 
 Boston & C. S. Co. v. Reed, 23 Col. entine v. Richardt, 126 N. Y. 
 523; Jackson v. Hyde, 91 Cal. 463; 272. Where an insolvent fraudu- 
 Converse v. Sickles, 44 N. Y. S. lently procured a sale of goods to 
 1080 ; Pope v. Dapray, 176 111. 478. him, and then resold them, he, or 
 
 The forms and varieties of invol- his voluntary assignee, holds their 
 untary trusts are practically limit- proceeds, when capable of specific 
 less. Thus, whenever one acquires identification, as in notes or credits, 
 a legal title with notice that the as a constructive trustee for the 
 equitable title is in another, he is a original owner. American Sugar 
 
 229
 
 § 167.] 
 
 CONSTRUCTIVE TRUSTS. 
 
 [chap, VI. 
 
 § 167. Courts of common law have an extensive jurisdiction 
 in cases of fraud, but it is readily seen that the remedy in 
 equity is more easily moulded to the varying circumstances 
 of different cases. As between the immediate parties, fraud 
 makes all things void which are done under its direct influ- 
 ence. Thus, non est factum can be pleaded to a suit upon a 
 deed or bond, procured by fraud or duress, on the ground that 
 whatever is done under the influence of fraud is not done at 
 all.^ The same evidence is admissible in both courts. Prob- 
 
 1 1 Chitty, Plead. 483. Courts of chancery in England and the courts 
 of the United States, and of many of the several States, have a jurisdic- 
 tion in equity to set aside deeds and contracts procured by misrepresenta- 
 tion, concealment, collusion, or fraud. In Massachusetts, the Supreme 
 Judicial Court has jurisdiction in equity in cases of fraud, accident, and 
 mistake, according to the usage and practice of courts of equity where 
 there is not a plain, adequate, and complete remedy at law. Gen. Stat. 
 
 Ref. Co. V. Fancher, 145 N. Y. .552. 
 So equity has jurisdiction to decree 
 an account of the rents and profits 
 of lands against a disseizor, when 
 the land owners are infants or per- 
 sons non compos mentis. Robinson 
 V. Burritt, 6G Miss. 3.56. But an 
 innocent tenant, entering under the 
 disseizor, and paying rent to him 
 without notice of such owner's title, 
 will not be required to again pay 
 the rent to the owner. Boylan v. 
 Deinzer, 45 N. J. Eq. 485. A 
 grantee of land purchased by a trus- 
 tee with trust funds, though without 
 notice, holds it as trustee of the 
 beneficiary, if he receives it only in 
 payment of the trustee's prior in- 
 debtedness to him. Orb v. Coap- 
 stick, 136 Ind. 313 ; Darling v. Potts, 
 118 Mo. 506. So a mother of a 
 ward, who receives and retains the 
 trust funds from its guardian, is a 
 trustee de son tort. Huntley v. 
 Denny, 65 Vt. 185. Even if an in- 
 sane person's guardian obtains 11- 
 230 
 
 cense of court to sell the ward's 
 land for fictitious debts, the pur- 
 chaser at the sale, if he has knowl- 
 edge of the fraud, will be held a 
 tnistee for such ward. Dickel v. 
 Smith, 38 W. Va. 635. A supposed 
 gift from a person who is in fact 
 non compos creates a trust for such 
 person's benefit. Teegarden v. 
 Lewis, 145 Ind. 98. Fraud is not a 
 necessary element in a constructive 
 trust when a fiduciary relation al- 
 ready exists. Butler v. Weeks, 33 
 N. Y. S. 1090; Alaniz v. Casenave, 
 91 Cal. 41. 
 
 An involuntary trust is enforce- 
 able against persons who come into 
 possession of the property only to 
 the same extent, in the same man- 
 ner, and with like force and effect as 
 against the original trustee. Gray 
 V. Farmers' Exchange Bank, 105 
 Cal. 60, 64 ; Roggenkamp v. Rog- 
 genkarap, 68 F. R. 605 ; Edwards v. 
 Culberson, 111 N. C. 342.
 
 CIIAP. VI.] CONSTRUCTIVE TRUSTS. [§ 1G7. 
 
 ably the same evidence that would convince a court of equity 
 that a deed was procured by fraud, and that the grantee ought 
 to hold as a constructive trustee for the grantor, would also 
 persuade a jury to return a verdict against such deed. In 
 some States the parties have a right to trial by jury of all 
 questions of fact, as of fraud or no fraud, arising upon the 
 pleadings in equity. In other States, the court may in its 
 discretion send such issues of fact to trial by a jury.^ Thus, 
 the remedy in equity in cases of fraud is sought, not so much 
 from the mode of proof and the rules of evidence, as it is 
 
 ch. 113, § 2. It was supposed by the profession that this statute con- 
 ferred upon the court a jurisdiction in equity in accordance with the 
 general usages of the courts of equity in England and the United States. 
 But the court by a strict construction of the words, " where there is not 
 a plain, adequate, and complete remedy at law," denied their jurisdiction 
 in cases of fraud, where an action at law might be maintained by the in- 
 jured party. Thus, if a deed is procured from a person by fraud, he can- 
 not maintain a suit in equity to set it aside, if it is possible to maintain 
 a real action for the recovery of the land; and as such deeds are void, or 
 at least voidable, such action may be maintained at law, and the court 
 has no jurisdiction in equity. Bassett v. Brown, 10 Mass. 355. This de- 
 cision goes upon the strict meaning of the words, " where there is not a 
 plain, adequate, and complete remedy at law," words which were formerly 
 found in every bill in equity, in order to give the court jurisdiction. But 
 they did not exclude the jurisdiction in equity, if the court had a juris- 
 diction, concurrent or otherwise, according to the usage and practice of 
 courts of equity. The court in ^Massachusetts still has jurisdiction in 
 equity in cases of fraud, where there is a peculiar complication of circum- 
 stances or of parties. Pratt v. Pond, 5 Allen, 59 ; Glass v. Hulbert, 102 
 Mass. 20; Martin t'. Graves, 5 Allen, 601 ; Whittemore w. Cowell, 7 Allen, 
 446; Pool r. Lloyd, 5 Met. 528. But the practitioner must determine at 
 his peril whether a particular case comes within such jurisdiction. It 
 would have been more simple and certain for the administration of justice, 
 to have given to the words of exclusion the meaning attached to them in 
 bills of equity, and to have made the jurisdiction of the court to depend 
 upon the known usage and practice of courts of equity. Thus, both the 
 court and the bar would have had some known ground to go upon. Of 
 course these remarks apply only to those cases of fraud where there is a 
 jurisdiction in equity to set aside conveyances procured by fraud, and for 
 other relief according to the known usage and practice of courts of equity, 
 and not to mere cases of cheating and fraud in many of the affairs of life. 
 See Miller r. Scamraon, 52 N. II. 009- 
 1 1 Story's Eq. Jur. § 190 a, 
 
 231
 
 § 168.] CONSTRUCTIVE TKUSTS. [CIIAP. VI. 
 
 from the complete character of the relief given. It is true, 
 that in some cases courts of equity will act upon circum- 
 stances and presumptions of fraud which courts of law would 
 not deem satisfactory proofs.^ As if a guardian purchases an 
 estate from a ward, equity will presume fraud from the exist- 
 ence of the relation of guardian and ward, — a rule that 
 courts of law would not always act upon. Lord Eldon said, 
 that courts of equity in many cases would order an instru- 
 ment to be delivered up, as unduly obtained, which a jury 
 would not be justified in impeaching by the rules of law.^ 
 However, fraud must be proved in both courts, and is not to 
 be imputed from mere circumstances of suspicion. It is not, 
 however, the rule that the court will not presume or construe 
 a trust to arise except in cases of absolute necessity ;3 for 
 courts of equity will act upon the just preponderance of all 
 the facts and circumstances of proof in the case.* 
 
 § 168. Constructive trusts may be divided into three classes, 
 to be determined according to the circumstances under which 
 they arise. First, trusts that arise from actual fraud practised 
 by one man upon another. Second, trusts that arise from con- 
 structive fraud.^ In this second class the conduct may not be 
 actually tainted with moral fraud or evil intention, but it may 
 be contrary to some rule established by public policy for the 
 protection of society. Thus, a purchase made by a guardian 
 of his ward, or by a trustee of his cestui que trust, or by an 
 attorney of his client, may be in good faith, and as beneficial 
 to all parties as any other transaction in life ; and yet the 
 inconvenience and danger of allowing contracts to be entered 
 into by parties holding such relations to each other are so 
 great that courts of equity construe such contracts prima facie 
 to be fraudulent, and they construe a trust to arise from them. 
 Third, trusts that arise from some equitable principle inde- 
 
 1 Warner v. Daniels, 1 Wood. & M. 103; Denton v. McKenzie, 1 Des. 
 
 289. 
 
 Fullager v. Clark, 18 Ves. 483 ; Chesterfield v. Janssen, 2 Ves. 155. 
 Cook V. Fountain, 3 Swanst. 555. 
 2 Story's Eq. Jur. § 1195 ; Steele v. Kinkle, 3 Ala. 352. 
 Post, § 194. 
 232
 
 CHAP, YI.] CONSTRUCTIVE TRUSTS. [§ 169. 
 
 pendent of the existence of any fraud ; as where an estate lias 
 been ])urchased, and the consideration-money i)aid, Ijut the 
 deed is not taken, equity will raise a trust by construction for 
 the purchaser. 
 
 § 169. No certain and accurate definition or description of 
 actual fraud can be given. Courts have never laid down, in a 
 general prujxjsition, what does and what does not constitute 
 fraud, nor any general rule by which they are controlled in 
 giving relief,^ lest other means of committing fraud should be 
 resorted to. As Lord Hardwicke said, "fraud is infinite, and 
 were courts of equity once to lay down rules how far they 
 would go and no further, in extending the relief against it, or 
 to define strictly the species or evidence of it, the jurisdiction 
 would be cramped, and perpetually eluded by new schemes 
 which the fertility of man's invention would contrive." ^ Al- 
 though it is difficult to give a definition of it, yet Mr. Story 
 said,^ that " fraud in the sense of a court of equity properly 
 includes all acts, omissions, and concealments which involve 
 a Ijreach of legal or equitable duty, trust, or confidence, justly 
 reposed, and are injurious to another, or by which an undue 
 and unconscientious advantage is taken of another.'* And 
 courts of equity will not only interfere, in cases of fraud, to 
 set aside acts done, but they will also, if acts have by fraud 
 been prevented from being done by the parties, interfere and 
 treat the case exactly as if the acts had been done " ^ (a). 
 
 1 Mortlock V. Duller, 10 Ves. 30f3. 
 
 2 Parke's Hist. of Chan. 508 ; Lawley v. Hooper, 3 Atk. 270 ; 1 Domat, 
 Civil Law, B. 1, tit. 18, § 3, art. 1. 
 
 8 1 Story's Eq. Jur. § 187. 
 
 * Chesterfield v. Jansssen, 2 Ves. Sr. 155; Gale v. Gale, 10 Barb. 251 ; 
 1 Fonb. Eq. B. 1, c. 2, § 3, note (r). 
 
 6 Middleton v. IMiddleton, 1 Jac. & W. 06 ; Waltham's Case, cited 11 
 Ves. G38, M Ves. 200 ; Devenish v. Baiues, Br. Ch. 4. 
 
 (a) Tn Huxley v. Rice, 40 I^Iich. is obtained for ends which it re- 
 73, 82, approved in Moore v. Craw- gards as fraudulent, or under cir- 
 ford, 130 U. S. 122, 128, the court cumstances it considers as fraudu- 
 said : " It is the settled doctrine of lent or oppressive, by intent or 
 the court that where the conveyance immediate consequence, the party 
 
 233
 
 § 170.] CONSTRUCTIVE TKUSTS. [CHAP. VI. 
 
 § 170. Although courts of equity have not made general 
 definitions stating what is fraud and what is not, they have 
 not hesitated to lay down broad and comprehensive principles 
 of remedial justice, and to apply these principles in favor of 
 innocent parties suffering from the fraud of others. These 
 principles, though firm and inflexible, are yet so plastic, 
 that they can be applied to every case of fraud as it occurs, 
 however new it may be in its circumstances. The leading 
 principle of this remedial justice is by way of equitable 
 construction to convert the fraudulent holder of property 
 into a trustee, and to preserve the property itself as a fund 
 for the purpose of recompense. In investigating allegations 
 of fraud, courts of equity disregard mere technicalities and 
 artificial rules, and look only at the general characteristics 
 of the case, and go at once to its essential morality and 
 merit. Thus at law married women or infants are not 
 liable upon their contracts, nor are they bound by their 
 deeds, receipts, or releases, whether made bona fide or 
 fraudulently ; ^ but in equity if a married woman has obtained 
 property by fraud, the court disregards the technical rules 
 
 1 People V. Kendall, 25 Wend. 390 ; Burley v. Russell, 10 N. H. 184 ; 
 West V. Moore, 14 Vt. 447; Conroe v. Birdsall, 1 Johns. Cas. 127; Price 
 I'. Hewitt, 8 Exch. 145. 
 
 deriving title under it will be con- nix v. Purcell, 46 Ohio St. 102 
 
 verted into a trustee in case that Champlin v. Champlin, 130 111. 309 
 
 construction is needful for the pur- Barber v. Barber, 146 Jnd. 390 
 
 pose of administering adequate re- Harris v. Daugherty, 74 Tex. 1 
 
 lief ; and the setting up of the statute Shoufe v. Griffiths, 4 Wash. 161 
 
 of frauds by a party guilty of the Riley v. Martinelli, 97 Cal. 575. 
 fraud or misconduct, in order to bar Estoppels in pais are not affected 
 
 the court from effective interference by the statute of frauds. Bell v. 
 
 with his wrongdoing, will not hin- Goodnature, 50 Minn. 417. Hence, 
 
 der it from forcing on his conscience an equitable interest, although it 
 
 this character as a means to baffle cannot be transferred by parol, may 
 
 his injustice or its effects." See be abandoned or released to the 
 
 also Hinton I'. Pritchard (N. C), 10 holder of the legal title by matter 
 
 L. R. Ann. 401, and note ; Ward v. in pais, when such intention of the 
 
 Ward, 59 Conn. 1 88 ; Tanney v. parties is clearly shown. Gorrell 
 
 Tanney, 159 Penn. St. 277; Mc- v. Alspaugh, 120 N. C. 362, 368; 
 
 Devitt r. Frantz, 85 Va. 922; Man- Engel's Estate, 180 Penu. St. 215. 
 234
 
 CHAP. VI.] MISREPRESENTATION AND FRAUD. [§ 171. 
 
 of common law in regard to married women, and converts 
 her by construction into a trustee, and compels her to do 
 justice by executing the trust. ^ The same principles apply 
 to infants, although they cannot be sued at common law, 
 save in a few exceptionable cases. So if an infant fraudu- 
 lently misrepresents his age and gives deeds or releases, 
 u])on which others act, equity will not allow him to impeach 
 such deeds on account of his minority.^ This is on the 
 ground that infants and married women shall not take 
 advantage of the rules made for their protection to i)erpetrate 
 frauds upon innocent persons, but that they shall be bound 
 by their own fraudulent representations, or by equitable 
 estoppels, like other persons. ^ 
 
 § 171. Fraud, arising from facts and circumstances of 
 imposition, presents the plainest case for relief,^ for it comes 
 within what is called the suggestio falsi.^ Wherever by 
 misrepresentation, combination, conspiracy, oppression, 
 intimidation, surprise, or any other practice at variance 
 with honest, fair dealing, one is deceived, entrapped, or 
 surprised into a conveyance of the legal title to his property, 
 by deed or by will, courts of equity will not allow the 
 fraudulent grantee to avail himself of the transaction to 
 enjoy the beneficial interest, but will construe him to be a 
 trustee, and will order him to account upon equitable prin- 
 ciples, and to make a reconveyance of the property.^ Thus, 
 
 1 Vaughan v. Vanderslegen, 2 Dr. 363; Jones v. Kearney, 1 Dr. & W. 
 167. 
 
 2 Stoolfoos V. Jenkins, 12 S. & R. 399 ; Wright v. Snow, 2 De G. & S. 
 321. 
 
 8 Davis V. Fingle, 8 B. Monr. 539; Wright v. Arnold, 4 id. 643; Hall 
 V. Tinimons, 2 Rich. Eq. 120. 
 
 * Chesterfield ;;. Janssen, 2 Ves. 15.5 ; Beegle v. Wentz. .55 Penn. St. 369. 
 
 6 Evans v. Ricknell, 6 Ves. 173; Jarvis v. Duke, 1 Vern. 20; Brod- 
 erick v. Broderick, 1 P. Wms. 240; Nevitt v. Gibson, 1 Freem. Ch. 438; 
 Bulkley v. Wilford, 2 CI. & Fin. 102. 
 
 « Tyler v. Black, 13 How. 231 ; Boyce v. Grundy, 2 Pet. 210; Smith r. 
 Richards, 13 Pet. 2G ; McAllister i\ Barry, 2 Ilayw. 200 ; Walker r. Dun- 
 lop, 5 Hayw. 271 ; Harris v. Williamson, 4 id. 121 ; Stephenson r. Taylor, 
 1 A. K. Marsh. 235; Pitts v. Cottingham, 9 Porter, 075 ; Lewis v. Mc- 
 
 235
 
 § 171.] CONSTEUCTIVE TKUSTS. [CHAP. VI, 
 
 where one buys land at an execution sale, or sale under a 
 trust deed, under an agreement with the debtor that the 
 latter may redeem, the purchaser holds in trust ; it would be 
 a fraud to allow him to repudiate the contract, ^ Mere 
 declarations and admissions of the party to be charged 
 accompanying the transfer of title have been held sufficient 
 to raise a trust, ^ It must be remembered, in connection 
 with these cases, that although they are placed on the ground 
 of fraud, the doctrine of North Carolina, that trusts in land 
 may be created by parol, probably has had an influence in 
 nearly all the decisions.^ In Pennsylvania, an agreement to 
 allow redemption is held to be within the statute of frauds, 
 and will not be enforced as creating a constructive trust.'* 
 Equity will enforce a parol promise to a testator by a 
 legatee to hold the legacy for the benefit partly or wholly 
 
 Lemore, 10 Yerg. 206 ; Speace v. Duren, 2 Ala. 251 ; Harris v. Carter, 
 3 Stew. 233 ; How v. Weldon, 2 Ves. 517 ; Neville v. Wilkinson, 1 Bro. 
 Ch. 596 ; Earl of Bath's Case, 3 Ch. Ca. 56; Willan v. Willan, 16 Ves. 
 82; Say V. Barwich, 1 V. & B. 195; Barnsley v. Powell, 1 Ves. 289; 
 Mathew v. Haubury, 2 Vern. 187 ; Bridgman v. Green, 2 Ves. 627 ; Evans 
 V. Llewellyn, 1 Cox, 340 ; Bennet v. Vade, 2 Atk. 324 ; Mad. Ch. Pr. 342 ; 
 Clermont v. Tasburgh, IJ. & W. 112 ; Dowd v. Tucker, 41 Conn. 198 ; 
 Williams v. Vreelaud, 29 N. J. Eq. 417 ; Church v. Ruland, 64 Penn. St. 
 432 ; Rick's App., 105 id. 528; Beach v. Dyer, 93 111. 295; Long v. Fox, 
 100 id. 43 ; Brophy v. Lawler, 107 id. 284 ; Henschel v. Mamero, 120 id. 
 660 ; Ludlow v. Flournoy, 34 Ark. 451. A trust sale may be set aside 
 when oppressive to the knowledge of the purchaser. Littell v. Grady, 
 38 Ark. 584. But no mere verbal understanding between testator and 
 the legatee as to the final disposition of property bequeathed will create a 
 trust. AUman v. Pigg, 82 111. 149. 
 
 1 Mulholland v. York, 82 N. C. 510 ; Tankard v. Tankard, 84 id. 286 ; 
 McNair v. Pope, 100 id. 408. See also Turner v. King, 2 Ired. Eq. 132 ; 
 Vannoy v. Martin, id. 169 ; Vestal v. Sloan, 76 N. C. 127 ; McLeod v. 
 Bullard, 84 id. 515 ; Cheek v. W^atson, 85 id. 195 ; Gidney v. Moore, 86 
 id. 484; McKee v. Vail, 79 id. 194, declares such a contract void when 
 not in writing; but in 82 N. C. 510, supra, this case was distinguished on 
 the ground that there was no relation of confidence or equitable element 
 in the agreement in that case. 
 
 2 Smiley r. Pearce, 98 N. C. 185. 
 
 3 See § 75. 
 
 4 Salsbury v. Black, 119 Penn. St. 200; Kimmel v. Smith, 117 id. 183, 
 and cases cited. 
 
 236
 
 CHAP. VI.] MISREPRESENTATION AND FRAUD. 
 
 [§ 171. 
 
 of another, in consideration of wliich promise the testator 
 for the benefit of such third person makes the bequest to the 
 promisor. It w(niM be a fraud for the legatee to retain the 
 property for his own benefit.^ (a) Even silent acquiescence 
 encouraging a testator to make a will with a declared 
 expectation that lie will apply it for the benefit of others, 
 has been held to have the force of an express promise. ^ A 
 parol ])roraise on consideration of which a deed was made 
 will be enforced in equity.^ {b) Where the devisee, under a 
 
 1 Vreeland v. Williams, 32 N. J. Eq. 734. See Socher's App., 104 
 Penn. St. 609. 
 
 2 Laytiu v. Davidson, 95 N. Y. 263. 
 
 * Clark V. Haney, 02 Tex. 511 ; Lott v. Kaiser, 61 id. 665. 
 
 (a) The statute of wills doos not College v. Ritch, 151 N. Y. 282; 
 prevent a parol trust being engrafted Buckingham t'. Clark, 61 Conn. 204; 
 upon a devise or bequest after the Gilpatrick v. Glidden, 81 Maine, 
 
 probate of the will, at least with 
 respect to personalty. IMoore v. 
 Campbell, 102 Ala. 445; 113 Ala. 
 587 ; Hamilton v. Hall, 111 Mich. 
 291 ; Moran v. Moran, 104 Iowa, 216; 
 Clarke v. Clarke, 46 S. C. 230. See 
 
 137; Grant r. Bradstreet, 87 Maine, 
 583 ; Hodnett's Estate, 154 Penn. 
 St. 485. This applies to the will of 
 a wife made at her husband's insti- 
 gation upon his promise to hold the 
 property for their children. Larmon 
 
 conlra, Amherst College v. Ritch, v. Knight, 140 111. 232. 
 151 N. Y. 282 ; Fairchild v. Edson, The fact that a will, in creating 
 
 154 N. Y. 199. When, however, a trust, gives permission to the trus- 
 
 the depositor in a savings bank re- tee to apply such portion of the 
 
 tains control of the fund, both prin- trust fund to his personal use as he 
 
 cipal and interest, during his life, may find necessary, without account- 
 
 and intends that no interest in it ing therefor, does not abolish the 
 
 shall pass until after his death, the trust. Jones v. Newell, 78 Hun, 
 
 transaction is in the nature of a tes- 290. 
 
 tanientary deposition, and is void as 
 evading the statute of wills. Nutt 
 V. Morse, 142 INIass. 1 ; Zeller v. 
 Jordan, 105 Cal. 143. 
 
 If a testator is induced to make 
 a bequest by the express or implied 
 promise of the legatee that he will 
 
 (I/) When a person who occupies 
 a fiduciary relation to the owner of 
 real estate takes advantage of the 
 confidence thus reposed in him to 
 acquire an absolute conveyance 
 thereof, without consideration, 
 through a verbal agreement of trust, 
 
 devote tiie legacy to a certain la\v- which he promises to place in writ- 
 ful purpose, a secret trust is created, ing, and he refuses to so reduce it 
 and equity will require the legatee to writing, or to reconvey the land 
 to fulfil his promise. OTIara v. to the real owner, a court of equity 
 Dudley, 95 N. Y. 403 ; Amherst has power to set aside the convey- 
 
 237
 
 § 171.] CONSTRUCTIVE TKUSTS/ [CHAP. VI. 
 
 will defectively executed, obtained a conveyance of the 
 estate from the heir-at-law by representing that the will was 
 duly executed/ or where an executor obtained a release of a 
 legacy by representing that there was no legacy given by 
 the will, 2 or where a purchaser misrepresented the quantity 
 and quality of the land he was about to purchase,^ or where 
 the vendor misrepresented the quantity of land in a tract 
 sold, as twenty acres overflowed by a river, when in fact it 
 was more than a hundred acres,* or where a husband and 
 wife conveyed land to A. on no consideration but his promise 
 to reconvey it to the wife, and A. 's prior creditors attached 
 the land,^ the court gave relief. If one is induced by fraud 
 to take in the name of another a conveyance of land he buys, 
 he may elect to treat the transaction as creating a trust for 
 him; but if he does not so elect, his heirs cannot do so, for 
 no estate vested in him to pass by descent.^ In Smith v. 
 Richards,'^ the Supreme Court of the United States cited the 
 following proposition^ with approval: "Where a party 
 intentionally or by design misrepresents a material fact, or 
 produces a false impression^ in order to mislead another, ^"^ or 
 to entrap or cheat him, or to obtain an undue advantage of 
 him, — in every such case there is positive fraud in the 
 
 1 Broderick v. Broderick, 1 P. Wms. 239, 
 
 2 Jarvis v. Duke, 1 Vern. 19 ; Murray v. Paltuer, 18 Sch. & L. 474 ; 
 Jaraes v. Greaves, 2 P. Wms. 270 ; Horseley v. Chaloner, 2 Ves. 83. 
 
 3 Tyler v. Black, 13 How. 231. 
 
 4 Boyce v. Grundy, 3 Pet. 210. See Prescott v. "Wright, 4 Gray, 461. 
 But see Bartlett v. Salmon, 6 De G., M. & G. 40. 
 
 5 Cox V. Arnsmann, 76 Ind. 210. 
 
 ^ Cooper V. Cockrum, 87 Ind. 443. 
 ' 13 Pet. 36. 
 
 8 1 Story's Eq. Jur. §§ 192. 193. 
 
 9 Laidlaw i'. Organ, 2 Wheat. 195; Pidcoek r. Bishop, 3 B. &Cr. 605; 
 Smith V. Bank of Scotland, 1 Dow, 72 ; Evans v. Bicknell, 6 Yes. 173. 
 
 10 State V. Holloway, 8 Blackf. 45. 
 
 ance, or to give other proper relief, be converted into a trust by any 
 Bohm V. Bohm, 9 Col. 100; Jerome oral declaration of the parties there- 
 in. Bohm, 21 Col. 322 ; see sxipra, to. Moore v. Hamerstag, 109 Cal. 
 § 137. An absolute conveyance 122 ; supra, § 77. 
 cannot, however, after its execution, 
 238
 
 CHAP. VI.] MISUErRESENTATION AND FRAUD. [^ 171. 
 
 truest sense of the term;^ there is an evil act, with an evil 
 intent; dolum malum, ad circumveniendum. And the mis- 
 representation may as well l)e by acts as words, by artifices 
 that mislead 2 as by positive assertions."^ Lord Thiirlow 
 said, " it would be ridiculous for the court to malce a dis- 
 tinction between the two cases. "^ "Whether the party 
 thus representing a fact knew it to be false or made the 
 assertion without knowing whether it was true or false is 
 wholly immaterial;'^ for the allirmation of what one does not 
 know or believe to be true is, equally in morals and law, as 
 unjusti(ial)le as the afilrmation of what is known to be posi- 
 tively false.^ And even if a party innocently misrepresent 
 a fact by mistake, it is equally conclusive ; for it operates as 
 a surprise and imposition on the other party." Or, as Lord 
 Thurlow expresses it, it misleads the parties contracting on 
 
 1 Atwood V. Small, 6 CI. & Fin. 232 ; 1 Youuge, 407 ; Taylor v. Ash- 
 ton, 11 Mee. & W. 401 ; Warner v. Daniel, 1 Wood. & M. 103 ; Torrey v. 
 Buck, 1 Green, Ch. 366 ; Jarvis v. Duke, 1 Vern. 19 ; Broderick v. Brod- 
 erick, 1 P. Wnis. 239. 
 
 2 Chisholm v. Gad.sden, 1 Strobh. 220; Huguenin v. Baseley, 14 Ves 
 273 ; State v. Holloway, 8 Blackf. 45. 
 
 8 Ibid.; Laidlaw v. Organ, 2 Wheat. 195 ; Smith v. Bank of Scot- 
 land, 1 Dow, 272; 2 Kent, 484 ; Chesterfield v. Janssen, 2 Ves. 155; 
 Neville v. Wilkinson, 1 Bio. Ch. 546. 
 
 * Neville r. Wilkinson, 1 Bro. Ch. 546. 
 
 * Wright V. Snow, 2 De G. & Sm. 321. 
 
 8 Ainslie v. INIedlycott, 9 Ves. 21 ; Graves v. White, Freem. 57 ; Pear- 
 son V. Morgan, 2 Bro. Ch. 3S9 ; Foster v. Charles, 6 Bing. 396 ; 7 Bing. 
 105 ; Taylor v. Ashton, 11 l\Iee. & W. 401 ; Smith v. Mitchell, 6 Ga. 458; 
 Hazard v. Irwin, 18 Pick. 85 ; l)o?gett v. Emerson, 3 Story, 733; Hough 
 V. Richard.son, id. 691 : INIason v. Crosby, 1 Wood. & :M. 352 ; Smith v. 
 Babcock, 2 id. 246 ; Ilammatt v. Emerson, 27 Maine, 308. 
 
 ■^ Ibid. ; Pearson v. Morgan, 2 Bro. Ch. 389 ; Burrows v. Locke, 10 
 Ves. 475; De Manville v. Compton, 1 Ves. & B. 355 ; Ex parte Carr, 3 
 Ves. & B. Ill; Carpenter v. Am. Ins. Co., 1 Story, 57; Tayman v. 
 Mitchell, 1 Md. Ch. Dec. 496; Pratt v. Philbrook, 33 Maine, 17; Hard- 
 ing V. Randall, 15 id. 332; Rosevelt r. Fulton, 2 Cow. 129; Champlin 
 V. Laytin, 6 Paige, 189 ; Reese v. Wyman, 9 Ga. 439 ; Reynell v. Sprje, 
 8 Hare, 222; Lewis v. McLemore, 11 Yerg. 206; Thomas r. McCann, 
 4 B. Mon. 601 ; Hunt v. Moore, 2 Barr, 105; Joice v. Taylor, 6 G. & J. 
 54; Lockridge v. Foster, 4 Scam. 570 ; Turnbull v. Gadsden, 2 Strobh. 
 Eq. 14. 
 
 239
 
 § 172.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 the subject-matter." ^ There may also be fraud upon a third 
 person not a party to the immediate conveyance that will 
 raise a trust; for example, a purchaser knowing of a prior 
 deed to A. holds in trust for A.'-^ There is a distinction 
 between cases of fraud in which equity will set aside the 
 sale altogether, and those cases in which it will allow the 
 sale to stand, and hold the purchaser as a trustee. A trust 
 will not be declared, if thereby in effect the beneficiary 
 would receive the benefit of the fraud at the expense of a 
 third person equally innocent.^ 
 
 § 172. If a person purchasing an estate falsely pretends 
 and represents that he is purchasing or acting as agent for 
 another, when in fact he is purchasing for himself, and such 
 misrepresentation misleads and throws the vendor off his 
 guard, and the purchaser makes a better bargain than he 
 otherwise could, or the representation is in any way mate- 
 rial, equity will not enforce the agreement, or, if it is 
 already executed, will convert the purchaser into a trustee.* 
 And so if a purchaser at auction or otherwise represents that 
 he is purchasing or bidding for some other person, as for the 
 debtor in a sale under an execution,^ or for the mortgagor in 
 a sale under a foreclosure, or for the family under an execu- 
 tor's or administrator's sale, and competition is thus pre- 
 vented and the purchase is made on his own terms, equity 
 will decree that such person shall be a trustee for the 
 person for whom he represented that he was acting. So if 
 a purchaser by fraud prevents other purchasers from attend- 
 
 1 Neville v. Wilkinson, 1 Bro. Ch. 546. 
 
 2 Cannon v. Handley, 72 Cal. 133 ; see § 212. 
 8 Hudson V. Morris, 55 Tex. 605. 
 
 * Phillips V. Bucks, 1 Vern. 227 and notes; Fellowes v. Gwydyr, 
 1 Sim. 63 ; 1 R. & M. 83. But a mere mistake of parties will not avoid 
 a lease. Stiner v. Stiner, 58 Barb. 643. 
 
 6 Peebles v. Reading, 8 Ser. & R. 484 ; Gilmore v. Johnson, 29 Ga. 67; 
 Belcher v. Saunders, 34 Ala. 9 ; Roller v. Spilmore, 13 Wis. 26 ; Arnold 
 V. Cord, 16 Ind. 176 ; Northcote v. Martin, 28 Miss. 469 ; Soggins v. 
 Heard, 31 Miss. 426 ; Pearson v. East, 36 Md. 28 ; Minot v. Mitchell, 30 
 Ind. 228. 
 
 240
 
 CILVr. VI.] MISREPKKSENTATION AND FKAUD. [§ 172. 
 
 ing a sale,^ or if a purcliascr fraudulently agrees that lie will 
 purchase an estate in his own behalf and that of another, in 
 order to prevent competition, and gets the property into his 
 own name, at a less price, he will be a trustee for the person 
 defrauded. 2 On the other hand, where an agent makes a 
 fraudulent representation, or docs a fraudulent act, in a pur- 
 chase or sale, with or without the privity or knowledge or 
 consent of his principal, and the principal adopts the bargain 
 and attempts to reaj) an advantage from it so tainted by the 
 fraud of the agent, he will be held bound by the fraud of the 
 agent, and relief will be given.^ Indeed, the doctrine has 
 been thus l)roadly stated: "That where once a fraud has 
 been committed, not only is the person who committed the 
 fraud precluded from deriving any benefit from it, but every 
 innocent person is so likewise, unless he has innocently 
 acquired a subsequent interest; for a third person, by seek- 
 ing to derive any benefit under such a transaction, or to 
 retain any benefit resulting therefrom, becomes particeps 
 criminis, however innocent of the fraud in the beginning."* 
 And the same rule applies with more force to misrepresenta- 
 tions made by one of several partners.^ But if the agree- 
 ment is a fair one between the parties, it will not be affected 
 
 1 Martin v. Blight, 4 J. J. Marsh. 401 ; Rives v. Lawrence, 4 Ga. 2S3; 
 Beegle v. Wentz, 55 Penn. St. 3G9 ; Eoynton v. Housler, 73 id. 453 ■ 
 "Wolford V. Ilerrington, 74 id. 311. 
 
 2 McCulloch V. Cowher, 5 Watts & S. 427 ; Ferguson v. Williamson, 
 20 Ark. 272 ; Owson v. Cown, 22 IMiss. 329. 
 
 8 Ferson v. Sanger, 1 Wood. & M. 147 ; Warner r. Daniels, id. 90 ; 
 Kibbe ». Hamilton Ins. Co., 11 Gray, 163; Brooke v. Berry, 2 Gill, 83; 
 Fitzsimmous v. Joslin, 21 Vt. 12.') ; Fuller v. Wilson, 3 Ad. &' El.' 
 (n. s.) 58. See also Cornfoot v. Fowke, G M. & W. 358; National Ex- 
 change Co. V. Drew, 2 Macq. 103 ; Sugd. 144, V. & P. 718 ; Gentry v. 
 Law, 4 Nev. 97. 
 
 4 Ilortopp V. Ilortopp, 21 Beav. 259 ; Scholefield v. Templar, John. 
 155 ; Cassard v. Ilinman, 6 Bosw. 9 ; Wilde r. Gibson, 1 IT. L. Cas. 605; 
 Elwell I'. Chamberlain, 31 X. Y. 019 ; Bennett v. Judson, 21 N. Y. 238; 
 Buford V. Caldwell, 3 Mo. 477 ; Thomas v. l\IcCaun, 4 B. Jfon. 601 \ 
 Perhani v. Randolph, 4 IIow. (Miss.) 435 ; Stone v. Denny, 4 Met. 101 ; 
 Gentry v. Law, 4 Nev. 97. 
 
 6 Blair v. Bromley, 2 Phill. 239, 354. 
 VOL. I. — IG 9 ^ ..
 
 § 173.J CONSTRUCTIVE TRUSTS. [CIIAP. YI. 
 
 because brought about by the fraud of some third person for 
 his collateral benefit.^ And if the agreement is not a fair 
 one, it will not be invalidated by the fraudulent representa- 
 tions of a third person in no way connected with either 
 party, ^ unless the circumstances are such that the bargain 
 may be said to have been entered into by mistake.^ 
 
 § 173. However repugnant to entire good faith and sound 
 morals any misrepresentation upon any subject, however 
 made, may be, courts of justice cannot undertake to sit as 
 censors upon mere morals. There are in every community 
 two classes of rights, — perfect rights, and imperfect rights. 
 Perfect rights are those that may be enforced, or for the 
 breach of which damages may be recovered ; imperfect 
 rights are those which are conceded to every man, but which 
 cannot be enforced by human tribunals, and for the breach 
 of which no damages can be recovered. Thus every man 
 has a right to the utmost good faith, and the most perfect 
 frankness and truthfulness in all the transactions of busi- 
 ness; but courts of justice would be utterly powerless to 
 enforce such a standard of morality. They would have 
 neither the time nor the means of investigating the in- 
 numerable arts of buyers and sellers. And so courts have 
 been obliged to lay down certain practical rules and limita- 
 tions upon the subject of misrepresentation. Thus the mis- 
 representation must generally be of facts, or matters of fact, 
 and not of mere matters of expectation or opinion,* as if one 
 should represent that an estate contained a valuable mine, 
 when in fact no mine existed,^ or that an estate contained 
 only two or three hundred acres, when in fact it contained 
 over twelve hundred acres, or that there was no timber upon 
 
 1 Bellamy v. Sabine, 2 Phill. 425; Blackie v. Clarke, 15 Beav. 595. 
 
 2 Fisher v. Boody, 1 Curtis, 206 ; Beach v. Dyer, 93 III. 295. 
 
 8 Ibid. And it must be a fraud at the time of the purchase, not after- 
 wards. AATieeler v. Reynolds, 67 N. Y. 227. 
 
 4 Fer.son v. Sanger, 1 Wood. & M. 146 ; Warner v. Daniels, id. 98 ; 
 Rush V. Yought, 55 Penn. St. 437. 
 
 5 Lowndes v. Lane, 2 Cox, 363. 
 
 242
 
 CHAP. VI.] MISREPRESENTATION AND FRAUD. [§ 173. 
 
 it, Avhcn there was a large amount of valuable timber,' or 
 the seller should falsely represent that the custom of a 
 puhlic-liousc was a certain sum monthly,^ or that an estate 
 was situate in one locality or county, when it was situate in 
 another,^ or that stocks were selling for such a sum in the 
 market, when they were worthless,* or that a third person 
 has paid a certain sum for the same property,^ or that it 
 rents for so much.^ in these and similar cases the misrep- 
 resentation is of facts that go to the merits of the contract, 
 and avoid it, if false. But if the representation is to the 
 value, which is matter of opinion, it will not in general 
 avoid the contract, as where the affirmation is that the 
 estate is worth so much; or even if the representation is 
 stronger, as that so much was given for it, or that so much 
 has been offered or refused." Any person M'ho confides in or 
 is cheated by such representations is considered too careless 
 of his own interests to invoke the interposition of courts.^ 
 A misrepresentation, however, of a mere matter of opinion 
 may avoid a contract, or convert the fraudulent party into a 
 trustee, where the other party is known to place confidence 
 in the opinions and judgment of the person with whom he is 
 dealing, or where the relations between the parties are of a 
 confidential and fiduciary character, or where one party has 
 peculiar or exclusive means of acquiring proper information 
 
 1 Tyler v. Black. 13 ITow. 230. 
 
 2 Pilmore v. Hood, Scott, 827. 
 
 8 Re.^^t V. Stow, 2 Sandf . Ch. 298 ; Bennett v. Judson, 21 N. Y. 238. 
 
 * IManning v. Albee, 11 Allen, 522. See Warner v. Daniels, 1 Wood. 
 & M. 102. 
 
 6 Medbury w. Watson, 6 Met. 259. 
 
 6 Elkins V. Tresham, 1 Sev. 102 ; 1 Sid. 146. 
 
 ■f Hepburn v. Diinlop, 1 Wheat. 189 ; Irvine v. Kirkpatrick, 3 Eng. L. 
 & Eq. 17; Medbury i'. Watson, 6 I^Iet. 259 ; Bacon v Bronson, 7 John. 
 Ch. 144 ; Stone v. Denny, 4 Met. 151 ; Small v. Atwood, 3 Younge 
 Exch. 407; Veasey v. Doton, 3 Allen, 351 ; Hemmer v. Cooper, 8 Allen, 
 334; Best r. Blackburn, 6 Litt. 51; Speiglemyer v. Crawfort, 6 Paige, 
 254. 
 
 8 :Manning v. Albee, 11 Allen, 522; 2 Kent, 484,485 ; Vernon v. Keys, 
 12 East, 632; Hough v. Richardson, 3 Story, G96; Jenkins v. Eldredge, 
 id. LSI. 
 
 243
 
 § 174.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 upon which to form a judgment or opinion,' or where the 
 representations are such that one party is induced to rely 
 upon the opinions of the other. "-^ 
 
 § 174. Again, the misrepresentation must be of some 
 fact material to the contract, or of something that goes to 
 its essence;^ as if an estate is represented to contain one 
 thousand acres, and it contains nine hundred and ninety- 
 nine acres,* or if the age of an article is represented to be 
 ten years, and it is a few months more or less,^ or a thing is 
 represented to have been purchased in one place and it is in 
 fact purchased at another,^ or if a spring of water is repre- 
 sented to be upon a given tract of land, when in fact it is 
 not:'^ in all these matters the facts represented are too 
 trifling or collateral to be material, and no relief would be 
 granted. Yet, if the leading motive of the purchase of an 
 estate was known to be material, relief would be granted. 
 As, if the leading motive of the purchase of an estate was 
 known to be the purpose of acquiring a spring of water, then 
 a fraudulent misrepresentation as to the locality of the 
 spring would become material to the contract; or if the 
 vendor should fraudulently point out the boundary lines, so 
 as to take in the spring, or more land than belonged to him, 
 the contract would be avoided.^ But if the boundaries are 
 properly pointed out, a misrepresentation as to the number 
 of acres in a farm is not material.^ 
 
 1 Sheoflfer v. Sleade, 7 Blackf. 178; Hill v. Gray, 1 Starkie, 352; 
 Keates v. Cadogan, 2 Eng. L. & Eq. 321. 
 
 2 Reynell /•. Sprye, 8 Hare, 222 ; 1 De G., M. & G. 660. 
 
 3 Phillips V. Bucks, 1 Vera. 227 ; Hough r. Richardson, 3 Story, 659 ; 
 TurnbuU v. Gadsden, 2 Strobh. Eq. 14; Morris Canal v. Emmett, 9 Paige, 
 186 ; Clark v. Everhart, 63 Peun. St. 347. 
 
 4 Ibid. ; Stebbins v. Eddy, 4 Mason, 414 ; Winston v. Gwathmey, 8 B. 
 Mon. 19 ; Winch v. Winchester, 1 Ves. & B. 375 ; Ingpont v. Worcup, 
 Finch, 310. ^ Geddes v. Pennington, 5 Dow, 159. 
 
 6 Ibid. 
 
 ■^ Winston v. Gwathmey, 8 B. Mon. 19. 
 8 Elliott V. Boaz, 9 Ala. 772. 
 
 ® Stebbins v. Eddy, 4 Mason, 414 ; Morris Canal v. Emmett, 9 Paige, 
 168. 
 
 244
 
 CHAP. VI.] MISREPRESENTATIONS. [§ 176. 
 
 § 175. The misrepresentation must also be of something 
 peculiarly within the knowledge of one of the parties, or the 
 facts must be of such a nature that both parties cannot 
 easily obtain the information. Thus, if both parties have 
 the same means of information, as if both parties go upon a 
 tract of land and have equal means of judging of the quantity 
 of timber upon it,' or if representations are made of town 
 lots and the future prospects of the town, and the facts are 
 equally oi)cn to both parties upon inquiry,^ or if there is a 
 misrepresentation of title, and the facts are equally acces- 
 sible to both parties,^ or generally, if both parties have 
 the same information, or an equal opportunity to obtain the 
 same information, there cannot Ijc such a fraud, arising from 
 such a misrepresentation as will convert one of the parties 
 into a trustee.^ So if there are fraudulent misrepresenta- 
 tions sufficient to avoid the contract, and the innocent party 
 obtains a knowledge of all the facts before completing the 
 contract, he can have no relief.^ And so if the misrepre- 
 sentations, though fraudulent, are so vague and uncertain 
 that they ought not to mislead a reasonable man, but should 
 rather put him upon inquiry, he can have no relief.® 
 
 § 176. The action of courts in cases of alleged fraud will 
 frequently depend upon the form in which the matter is 
 brought before them, and upon the relief sought in the pro- 
 ceedings. Thus a bill may be brought by a party for the 
 specific performance of a contract which he holds, or a bill 
 may be brought by a party to set aside the contract, or con- 
 vert the opposite party who holds under the contract into a 
 trustee, or a suit may be brought by a party at common law 
 
 1 Hough V. Richardson, 3 Story, 659 ; Tindall v. Harkiuson, 19 Ga. 
 448. 
 
 2 Bell !•. Henderson, 6 IIow. (Miss.) 311. 
 
 8 Glasscock v. Minor, 11 Mo. 655; Juzan v. Toulrain, 9 Ala. 662. 
 
 * Ilobbs V. Parker, 31 Maine, 143 ; Hutchinson v. Brown, 1 Clark, 
 408. 
 
 6 Yeatcs v. Prior, 6 Eng. 68; KnuckoUs v. Lea, 10 Humph. 577; 
 Pratt V. Pliilbrook, 33 Maine, 17. 
 
 ^ Hough V. Richardson, 3 Story, 659. 
 
 245
 
 § 176.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 to recover damages for the breach of the same contract. It 
 docs not follow, because a court of equity would refuse to 
 decree the specific performance of a contract, that it would 
 also, on a proper bill, decree the contract to be set aside, or 
 that it would order the party claiming under it to be a 
 trustee for the other party. ^ And so if a party comes into 
 a court of equity to ask that an agreement which he holds 
 may be specifically performed by the opposite party, he must 
 come with clean hands, as it is said. There must not be 
 any fraud, misrepresentation, or concealment on his part in 
 procuring the contract; or, still stronger, there must not be 
 a suspicion of concealment, misrepresentation, fraud, or 
 unfairness adhering to him. And even further, if the bar- 
 gain imposes great hardship on the defendant, or is made 
 under any misapprehension or mistake, or unadvisedly, 
 courts of equity will decline to interfere actively in decree- 
 ing a specific execution of the agreement, but will leave the 
 parties to their rights at law.^ It will be seen from this that 
 it requires much less evidence of fraud to enable a defendant 
 to resist the specific performance of an agreement, than it 
 requires to enable him to succeed as a plaintiff in a bill to 
 set aside the same contract. ^ In the case last named he 
 must establish the fraud affirmatively, by proof of the facts 
 and circumstances, to the reasonable satisfaction of the court. 
 And there may be such a case that the court would refuse to 
 set aside a contract on the one side, because the evidence of 
 fraud was insufficient to set the court in motion ; and on the 
 other side it would refuse to decree a specific performance, 
 because the circumstances were too suspicious to allow it 
 actively to interfere for the other party. In such case the 
 parties would be left to an action at common law upon the 
 agreements with such rights as they may have in a common- 
 law suit.^ 
 
 1 1 Story's Eq. Jur. § 693. 
 
 2 Savage v. Brocksopp, 18 Ves. 335 ; Cadman v. Horner, id. 12 ; Cler- 
 mont V. Tasburg, 1 Jac. & W. 112 ; Wall v. Stubbs, 1 Madd. 80 ; Mort- 
 lock V. Buller, 10 Yes. 292. 
 
 ^ Ibid. ; Townshend v. Stangroom, 6 Ves. 328 n. ; Lowndes v. Lane, 
 2 Cox, 363. 4 Story's Eq. Jur. § G93. 
 
 246
 
 CIIAI'. VI.] CONCEALMENT. [§ 177. 
 
 § 177. Tlic rules that ai)i)ly to affirmative acts or repre- 
 sentations which mislead, deceive, and defraud, are of 
 comparatively easy application in most cases. A single 
 affirmative word ui)on a material matter tending to mislead, 
 and actually misleading, is enough to establish fraud. ^ (a) 
 It is tiie sii(/(/e8tio falsi wiiieh may be defined to be a false 
 affirmation, in whatever form it may be made, whether by 
 words or acts, of a material fact, rightfully acted upon Ijy 
 the otlicr jjarty : such an affirmation avoids the contract or 
 converts the offending party into a trustee for the person 
 defrauded. But how far a contracting party may legally 
 conceal facts known to him, affecting the value of the sub- 
 ject-matter of the agreement, is another and more difficult 
 question. There is no doubt in sound morals upon the 
 matter. The natural instincts of every right-minded man 
 concur with every writer on morals in condemning every 
 concealment that suffers another to contract in ignorance of 
 the facts that give value to his property.^ The common law 
 teaches as high a standard of morals as any other system of 
 law. The decisions of judges and the books of elementary 
 
 ^ Turner v. Harvey, 1 Jac. 169, 
 
 2 Cic. de Off. Lib. 3, c. 12, 13; Paley, Mor. Phi. B. 3, c. 7 ; Grotius, 
 B. 2, c. 12, § 9; Puff. De Jure Xat. B. 5, c. 3, § 4. 
 
 (a) The rule now is that one per- v. Gould, [1893] 1 Q. B. 491, 49S. 
 
 son is not liable, at least in an The above rule does not apply when 
 
 action of deceit, for a false repre- there is a legal obligation on the 
 
 sentation upon the faith of which part of one person towards another 
 
 another person acts, even though to give him correct information, 
 
 made carelessly or negligently, and snch as the obligation of a tru.^tee 
 
 without investigation, provided he to give, on demand, to his cestui que 
 
 made it in the honest belief that it trui<t information as to the tru.st 
 
 was true. Derry v. Peck, 14 A. C. fund ; but the trustee is not obliged 
 
 337 ; Angus v. Clifford, [1891] 2 Ch. to answer the inquiries of a stranger, 
 
 449; Nash r. Minnesota Title Co., like an intending incumbrancer, 
 
 1G3 Mass. 574; Kountze v. Ken- who is about to deal with the cp.v/i/j 
 
 nedy, 147 N. Y. 124. See Houston que trust. Low v. Bouverie, [1891] 
 
 V. Thornton, 122 N. C. 36."). There 3 Ch. 82 ; Re Wyatt, 65 L. T. 214 ; 
 
 is thus no real distinction between [1891] W. N. 137, 192 ; In re Tillott, 
 
 fraud in a court of equity and [1892] 1 Ch. 86; I?i re Dartnall^ 
 
 fraud at common law. Le Lievre [1895] 1 Ch. 474. 
 
 247
 
 § 178.] CONSTKUCTIVE TRUSTS. [CHAr. VI. 
 
 writers contain the highest and purest maxims of good faith 
 and sound morality in every transaction and relation of life. 
 Whenever, therefore, a question of concealment arises, 
 cither in a suit at common law or in equity, it cannot be a 
 question what the highest morality requires; but it is a 
 question how far courts can go practically in giving relief, 
 without rendering the contracts of men so uncertain that no 
 business could be transacted without danger of prolonged 
 litigation. In communities governed by known, fixed, and 
 practical rules, and not by the mere discretion of men or 
 judges, it sometimes happens that courts must decline to 
 give relief in cases where a man of pure principles and 
 delicate honor would scorn to obtain or hold an advantage. 
 Thus, in all cases of suggestio fahi, where active steps have 
 been taken to deceive and gain an advantage, courts have 
 little trouble in giving relief; but where an advantage has 
 been gained by concealment, or suppressio veri, as it is called, 
 or by mere silence, it is more difficult to lay down fixed 
 rules that may not do more harm than good to business and 
 society. However, concealment, or suppressio veri, is often 
 of that fraudulent character that avoids a contract or con- 
 verts the offending party into a trustee. 
 
 § 178. There may be such relations between the parties 
 that silence, or the non-disclosure of a material fact, will 
 be a fraudulent concealment. If a person standin<r in a 
 special relation of trust and confidence to another has infor- 
 mation concerning property, and contracts with the other, 
 and does not disclose his exclusive knowledge, the contract 
 may be avoided, or he may be held as a constructive 
 trustee.^ Thus, if an attorney contracts with his client 
 without disclosing to him material facts in his possession, 
 the contract would be void. The trust and confidence of the 
 
 1 Pidcock V. Bishop, 3 B. & Cr. 605 ; IMartin v. Morgan, 1 Brod. & Bing. 
 289 ; Squire r. Whitton, 1 H. L. Cas. 333 ; Owen r. Homan, 3 Eng L. & 
 Eq. 121 ; .5 Mac. & Gor. 378; Etting v. Bank of U. S., 11 Wheat. 59; 
 Carew's Case, 7 De G.. M. & G. 43: Smith v. Bank of Scotlnnd. 1 
 Dow, P. Cas. 292 ; Clark v. Everhart, 63 Penn. St. 347; Miller v. Welles, 
 23 Conn. 33. 
 248
 
 CHAP. VI.] CONCEALMENT. [§ IV 8. 
 
 client ill his attorney is sucli that an obligation is iinj)Osed 
 upon the attorney to comniiinicate every material circum- 
 stance of law or fact. Mere silence, under such circum- 
 stances, becomes fraudulent concealment.^ The same rule 
 applies to all contracts of an agent with his principal, prin- 
 cipal with his surety, landlord with his tenant, parent with 
 his child, guardian with his ward, ancestor with the heir, 
 husband with his wife, trustee with his cestui que trust, 
 executors or administrators with creditors, legatees, or dis- 
 tributees of the estate, partners with their copartners, 
 appointors with their appointees, and part-owners with 
 part-owners; 2 though the part-owners of a ship, holding by 
 several and independent titles, were held not to stand in 
 such confidential relations to each other that one was under 
 obligation to communicate material facts upon a negotiation 
 to purchase. 2 («) If any of the parties above named propose 
 to contract with the persons with whom they stand in such 
 relations of trust and confidence, they must use the utmost 
 good faith. It is not enough that they do not affirmatively 
 misre])resent : thei/ must not conceal; they must speak, and 
 speak fully to every material fact known to them, or the 
 contract will not be allowed to stand.* Thus, if a partner 
 
 1 Bulkley v. Wilford, 2 Clark & Fin. 102. 
 
 2 Beaumont v. Boultbee, 5 Ves. 485 ; Ormond v. Hutchinson, 13 Ves. 
 51; Gartside v. Isherwood, 1 Bro. Ch. 558; Wellford v. Chancellor, 
 5 Grab. 39. 
 
 8 ]\Iathews v. Bliss, 22 Pick. 48. 
 
 * IMaddeford v. Austwick, 1 Sim. 89 ; 2 M. & K. 279 ; Pophani v. 
 Brooke, 5 Russ. 8 ; Gordon v. Gordon, 3 Swanst. 470 ; Cocking v. Pratt, 
 1 Ves. 401 ; Higgins v. Joyce, 2 Jones & La. 328; Farnham v. Brooks, 
 9 Pick. 234; Ogden v. Astor, 4 Sandf. S. C. 312 ; Ormond v. Hutchinson, 
 13 Ves. 51 ; Beaumont v. Boultbee, 5 Ves. 485 ; Gartside c. Isherwood, 
 1 Bro. Ch. 558. 
 
 (a) See Brownlie v. Campbell, wards a mercantile agency is not 
 
 5 A. C 025. A surely is under no necessarily an actual fraud upon a 
 
 larger obligation to disclose to his CO- subscriber relying upon its rp|>ort. 
 
 surety than the creditor is under to See Vermont INTarble Co. r. Smith, 
 
 both of them. Mackreth v. Walmos- 13 Ind. App. 457. 
 ley, 51 L. T. 19. Concealment to- 
 
 249
 
 § 179.] CONSTKUCTIVE TRUSTS. [CHAP. VI. 
 
 who keeps the accounts of the firm should purchase his 
 copartner's interest, without disclosing the state of the 
 accounts, the agreement could not stand. ^ The same rule 
 applies to family relations in general; as, where a younger 
 brother disputed the legitimacy of his elder brother, and a 
 settlement and partition were entered into, the younger 
 brother having in his possession facts that tended to show 
 that his parents intermarried before the birth of the elder, 
 which facts he did not communicate, the settlement was 
 set aside. 2 The duty of disclosing facts arises either from 
 a fiduciary relation, or from a trust properly understood to 
 be reposed in one party by another aljout a matter concern- 
 ing which the latter has peculiar means of information.^ 
 
 § 179. There are, also, cases where a party must not be 
 silent upon a material fact within his knowledge, although 
 he stands in no relation of trust and confidence. Thus, if 
 a party taking a guaranty from a surety does not disclose 
 facts within his knowledge that enhance the risk, and 
 suffers the surety to bind himself in ignorance of the in- 
 creased risk,^ or if a party already defrauded by his clerk 
 should receive security from a third person for such clerk's 
 fidelity, without communicating the fact of the fraud already 
 committed, thus holding the clerk out as trustworthy;^ in 
 both these and in similar cases the contracts would be void 
 for concealment. Silence as to such facts, under such cir- 
 
 1 Maddeford v. Austwick, 1 Sim. 89; 2 M. & K. 279 ; Smith in re Hay, 
 6 Madd. 2 ; Popham v. Brooke, 5 Russ. 8. 
 
 2 Cordon v. Gordon, 3 Swanst. 399 ; Cocking v. Pratt, 1 Ves. 401. 
 
 3 Maclary v. Reznor, 3 Del. Ch. 445. 
 
 * Martin v. Morgan, 1 Brod. & Bing, 289 ; Pidcock r. Bishop, 3 B. & 
 Cr. 605 ; Owen v. Homan, 3 Eng. L. & Eq. 121 ; 25 Eng. L. & Eq. 1 ; 
 4 H. L. Cas. 997 ; Carew's Case, 7 De G., M. & G. 43 ; Leith Banking Co. 
 V. Bell, 8 Shaw & Dun. 721; Railton v. Matthews, 10 CI. & Fin. 935; 
 Hamilton v. Watson, 12 id. 119 ; Squire v. Whitton, 1 H. L. Cas. 333 ; N. 
 British Ins. Co. v. Lloyd, 28 Eng. L. & Eq. 456 ; 10 Exch. 523 ; Evans v. 
 Kueeland, 9 Ala. 42. 
 
 5 Franklin Bank v. Cooper, 36 Maine, 195 ; Smith v. Bank of Scotland, 
 1 Dow, P. Cas. 272; Maltby's Case, id. 294 ; Etting v. Bank of U. S., 11 
 Wheat. 59. 
 
 250
 
 CHAP. VI.] CONCEALMENT. [§ ISO. 
 
 cumstanccs, would be equivalent to a positive affirmation 
 that no such facts existed.^ And so, if a party knows that 
 another is relying upon his judgment and knowledge in con- 
 tracting with hiui, although no cunlidential relation exists, 
 and he does not state material facts within his knowledge, 
 the contract will be avoided ; for knowingly to permit 
 another to act as though the relation was conlidential, and 
 yet not to state material facts, is fraudulent. It is said 
 that a party in such circumstances is hound to destroj/ the 
 confidence reposed in him, or to state all the facts which such 
 confidence demands.^ He cannot himself contract at arm's 
 length, and permit the other to act as though the relation 
 was one of trust and confidence. And so, if one party 
 knows that the other has fallen into a delusion or mistake as 
 to an article of property, and he docs not remove such 
 delusion or mistake, but is silent, and enters into a con- 
 tract, knowing that the other is contracting under the 
 influence of such delusion or mistake, the contract may be 
 set aside; for, not to remove that delusion or mistake is 
 equivalent to an express misrepresentation.^ 
 
 § 180. There must be a positive concealment to amount 
 to a suppressio veri. Mere silence, if nothing is done to 
 conceal a fact, is not in general suppressio veri. Aliud est 
 celare, aliud tacere. Mere silence between strangers, con- 
 tracting at arm's length, and understanding that they are so 
 contracting, will not in general avoid a contract, or convert 
 one of the parties into a trustee for the other.* Thus, the 
 
 ^ Franklin Bank v. Cooper, 36 Maine, 195; Smith r. Bank of Scotland, 
 1 Dow, P. Cas. 272 ; Maltby's Case, id. 291; Etting v. Bank of U. S., 11 
 Wheat. 59. 
 
 2 Per Mr. Redfield, 1 Story's Eq. Jur. § 212 a; Bruce r. Ruler, 2 Man. 
 & Ry. 3; Fitzsimmons v. Joslin, 21 Vt. 129; Hanson v. Edgerly,29 N. H. 
 313 ; Bank of Republic r. Baxter, 31 Vt. 101 ; Allen r. Addington, 7 
 Wend. 10 ; 11 Wend. 37-1 ; Pa.ldock c. Strobridge, 29 Vt. 470; Dolman v. 
 Nokes, 22 Beav. 102; Ilayward v. Cope, 25 Beav. 110; Foot c. Foote, 58 
 Bai-b. 258 ; Babcock c. Case, 01 Penn. St. 427. 
 
 « Keates v. Cadogau, 2 Eng. L. & Eq. 318 ; Hill v. Gray, 1 Starkie, 434. 
 
 * Fox V. Mackreth, 2 Bro. Ch. 300 ; 2 Cox, 320 ; Harris v. Tyson, 24 
 Penn. St. 359; Mathews v. Bliss, 22 Pick. 48. 
 
 251
 
 § 180.] CONSTKUCTIVE TRUSTS. [CHAP. VI. 
 
 value of property may frequently depend upon extrinsic 
 facts ; as, whether there is peace or war, whether there is or 
 is not a demand in the market, or in a distant place for 
 property of that description, whether transportation is 
 accessible, or whether the money market is easy or close. 
 If one having information upon such matters enters into a 
 contract with another with whom he has no confidential or 
 fiduciary relations, and he neither says nor does anything to 
 mislead or deceive, but is simply silent upon the facts 
 known to him, equity will not in general disturb the con- 
 tract ; ' but if he speaks a word, or does an act, that tends to 
 mislead the other party, or throw him off his guard, the 
 contract may be avoided, and he may be converted into a 
 trustee.^ The law permits persons to deal at arm's length, 
 if they both understand that they are so dealing, and it per- 
 mits them to be silent as to matters known only to one of 
 them, if no inquiries are made ; but it does not permit any 
 artifice to be added to silence, in order to conceal a fact 
 material to the contract. Thus, concealment, or suppressio 
 veri, which amounts to a fraud in the sense of a court of 
 equity, and for which it will grant relief, is defined to be 
 the non-disclosure of those facts and circumstances which 
 one party is under some legal or equitable obligation to 
 communicate to the other, and which the latter has a right, 
 not merely inforo conscientice, sed juris et de jure, to know.^ 
 Thus, if a stranger discover a valuable mine or spring, or 
 any other thing or circumstances, on or in connection with 
 land of another, he may be silent, and purchase the land;* 
 
 1 Fox V. Mackreth, 2 Bro. Ch. 300; 2 Cox, 320; Harris v. Tyson, 21 
 Penn. St. 359; Mathews v. Bliss, 22 Pick. 48. Mr. Kent, iu the earlier 
 editions of his Commentaries, stated a broader doctrine, but his later 
 editions st;ite the doctrine as in the text. See 2 Kent, 482, 484, 490, and 
 notes; Laidlaw v. Organ, 2 Wheat. 178. 
 
 2 Turner v. Harvey, Jac. 1G9 ; Laidlaw v. Organ, 2 Wheat. 178; 
 Mathews v. Bliss, 22 Pick. 48. 
 
 3 Young V. Bumpass, 1 Freem. Ch. 241 ; 1 Story's Eq. Jur. § 207 ; 
 Irvine v. Kirkpatrick, 3 Eng. L. & Eq. 17; Laidlaw v. Organ, 2 Wheat. 
 178. 
 
 4 Fox V. Mackreth, 2 Bro. Ch. 400 ; 2 Cox, 300 ; 1 Lead. Cas. Eq. 
 
 252
 
 CHAP. VI.] CONCEALMENT. [§ LSI. 
 
 but if he use any art to prevent a knowledge of the fact 
 from coming to the owner, equity will rescind the contract/ 
 and a very slight act will convert innocent silence into 
 fraudulent concealment. ^ But if one of the parties employs 
 an agent to contract, and the agent, knowing a material 
 fact, is silent or conceals it, his principal will not be 
 affected with the knowledge, nor will the contract be 
 vitiated.^ 
 
 § 181. Courts of equity will not only interfere in cases of 
 fraud, to set aside acts done, but they will also, if acts have 
 by fraud been prevented from being done, interfere, and 
 treat the case exactly as if the acts had been done ; and this 
 they will do, l)y converting the party who has committed the 
 fraud, and profited by it, into a trustee for the party in 
 whose favor the act would otherwise have been done.* If one 
 by a promise to buy land at an auction sale for one having 
 an equitable interest in it induces the latter and her friends 
 not to bid against him, he will be held a trustee.^ Where 
 one induces the owner of real estate not to redeem it by a 
 promise to hold the property until paid by the rents and 
 profits, and then to return the estate, equity will hold him 
 to his promise. ^ So, if a delay is agreed to in the sale of 
 land on a promise of the debtor to sell privately and apply 
 the proceeds in a certain manner, the proceeds will be 
 
 188; Harris v. Tyson, 21 Penn. St. 359 ; Earl of Bath, &c., Case, 3 Ch. 
 Cas. 56, 74, 103, lOi ; Mathews v. Bliss, 22 Pick. 48. 
 
 1 Bowman v. Bates, 2 Bibb, 47. 
 
 2 Turner v. Harvey, Jac. 169; Laidlaw v. Organ, 2 Wheat. 178; 
 Torrey r. Buck, 1 Green, Ch. 380 ; Mathews v. Bliss, 22 Pick. 48. 
 
 Wilde r. Gibson, 1 II. L. Cas. G05, reversing same case, 2 Y. & Col. 
 542. 
 
 * ]Middleton i\ Middleton, 1 Jac. & W. 96; Reach y. Keunegall, 1 Vea. 
 123; Oldham v. Litchford, 2 Vern. 506; Button v. Poole, 2 Lev. 211; 
 ]\Iestaer c. Gillespie, 11 Yes. 638, and cases cited; Jenkins v. Eldredge, 3 
 Story, 181. See remarks in ]\IcGowan v. McGowan, 14 Gray, 119 ; Morey 
 V. Herrick, 18 Pa. St. 128; Wallgrave v. Tebbs, 2 K. & J. 313; Dixon r. 
 Olmius, 1 Cox, Ch. 414. 
 
 6 Cowperthwaite v. Bank, 102 Penn. St. 397; Heath's App., 100 id. 1. 
 
 ^ Scheffermeyer v. Schaper, 97 Ind. 70. 
 
 253
 
 § 181.] CONSTRUCTIVE TRUSTS. [CHAP. VT. 
 
 impressed with a trust. ^ If a person by his promises, or by 
 any fraudulent conduct, with a view to his own profit, pre- 
 vents a deed or will from being made in favor of a third 
 person, and the property intended for such third person 
 afterwards comes to him who fraudulently prevented the 
 execution of the will or deed, he will be held to be a trustee 
 for the person defrauded, to the extent of the interest 
 intended for him.^ So, where the tenant in tail in re- 
 maiuder, fraudulently or by force, prevented the tenant in 
 tail for life in possession from suffering a common recovery, 
 and thereby barring the entail for the purpose of providing 
 for other persons by will out of the estate, it was held that 
 the tenant in tail in remainder, when the estate came to 
 him, was a trustee, and the court took care that the estate 
 should go precisely as if the common recovery had been 
 suffered, although the tenant in tail was a married woman, 
 and the fraud had been committed by her husband, and she 
 was not privy to it.'^ And where issue in tail prevented 
 his father, tenant in tail, from suffering a recovery, by 
 promising to provide for younger children, in favor of whom 
 the recovery was to be suffered, equity converted the tenant 
 in tail into a trustee for the younger children.* And where 
 a person fraudulently intercepts a gift intended for another, 
 by promising to hand it over if it is left to him, equity will 
 compel an execution of the promise, by converting such 
 person into a trustee.^ (a) So, if devisees or heirs prevent a 
 
 ^ Boyce v. Stanton, 15 Lea, 346. 
 
 2 Middleton v. jNIiddleton, 1 Jac. & W. 96 ; Reech v. Kennegall, 1 Ves. 
 123 ; Oldham r. Litchford, 2 Vern. 506 ; Button v. Poole, 2 Lev. 211 ; 
 Mestaer v. Gillespie, 11 Ves. 638, and cases cited ; Jenkins v. Eldredfre, 3 
 Story, 181. See remarks in McGowan v. McGovran, 14 Gray, 119; Morey 
 V. Herrick, IS Penn. St. 128; Church v. Ruland, 64 id. 432; Wallgrave v. 
 Tebbs, 2 K. & J. 313; Dixon v. Olmius, 1 Cox, Ch. 414; Fischbeck v. 
 Gross, 112 111. 208. 
 
 3 Luttrell V. Olmius, and Waltham's Case, cited 11 Ves. 638 ; and 14 
 Ves. 290. 
 
 * Jones r. IVfcKee, 6 Barr, 428 ; Devenish v. Baines, Prec. Ch. 4. 
 
 6 Hoge I'. Hoge, 1 Watts, 213; Devenish v. Baines, Prec. Ch. 4; 
 
 (rz) Rollins V. Mitchell, 52 Minn. 41, 50. 
 254
 
 CIIAI'. VI.] CONCEALMENT. [§ 181. 
 
 testator from charging his estate with annuities or legacies, 
 by saying that it is nut worth while to put them in the will, 
 and that they will pay them, they will be trustees for such 
 intended annuitants or legatees.' So, if an executor pre- 
 vents a gift or legacy from being given to one, by jjromising 
 to pay it as if inserted in the will, he will be a trustee.^ 
 So, where a testator held a note against his father, which 
 he intended to give up in his will, the residuary legatee 
 promising that she would surrender the note, equity held 
 her to be a trustee.^ So, Avhere one fraudulently i^rocured a 
 deed to be made to herself, instead of to another.* But 
 there must be some actual fraud in procuring a deed or 
 devise to one's self : the mere breach of a promise to convey 
 is not enough.^ Where the plaintiff wished to buy certain 
 land and engaged the defendant to find some one Avho would 
 lend the plaintiff the necessary money, and the defendant 
 dissuaded the plaintiff from seeking the money in other 
 directions, in consequence of which the plaintiff did to some 
 extent abstain from trying to get the funds elsewhere, and 
 the defendant l)ought the land on his own behalf with his 
 own money and took a deed to himself, it was held that the 
 defendant was not a trustee for the plaintiff either on the 
 ground of agency or fraud. Judge Holmes said : " In any 
 view of the law, before we can convert a man into a trustee, 
 on the ground of fraud, we must be able to see with some 
 reasonable certainty that his fraud was the means of dcpriv- 
 
 Church r. Ruland, 64 Penn. St. 432; Dowd v. Tucker, 41 Conn. 198; Wil- 
 liams V. Vreeland, 29 N. J. Eq. 417. 
 
 1 Chamberlain v. Chamberlain, 2 Freem. 34; Oldham v. Litchford, 2 
 Vern. 500; Mestaer y. Gillespie, 11 Ves. 638; Huguenin v. Baseley, 14 
 Ves. 290; Griffin v. Xanson, 4 Ves. 344; Hoge j;. Hoge, 1 Watts, 213; 
 Jones V. McKee, 3 Barr, 4!)6, and 4 Barr, 428 ; Xorris c. Frazer, L. R. 15 
 Eq. 329; McCormick v. Grogan, L. R. 4 H. L. 82. 
 
 - Thynn f. Thynn, 1 Vern. 296; Reach v. Kennigate, Amb. 67; Bar- 
 row V. Grcenbough, 3 Ves. 152; Chamberlain v. Agar, 2 V. & B. 250; 
 Podniore r. Gunning, 7 Sm. 614. 
 
 8 Richardson v. Adams, 10 Yerg. 273; Jones v. McKee, 3 Barr, 496. 
 
 < Millt-r V. Pearce, 6 Watts & S. 97. 
 
 ' Hoge v. Hoge, 1 Watts, 213. 
 
 255
 
 § 181.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 ing the plaintiff of the property he seeks to follow," and in 
 this case he did not deem it probable that such was the con- 
 sequence of the defendant's fraudulent concealment of his 
 intent to buy, and of his dissuasions.^ We think this 
 decision is open to severe criticism. Such fraudulent con- 
 duct should be repressed with a strong hand, the presump- 
 tion should be against the evil doer so strongly as to cut 
 off the chance of his gaining an advantage by his own wrong 
 or keeping it if gained, (a) If an heir fraudulently, or 
 through ignorance, procure a will to be revoked, so that the 
 estate comes to him, he will be a trustee; as, where A. had 
 sold a part of his estate, and the purchaser desired a fine to 
 be levied, B., his heir, acting as his attorney, advised a fine 
 to be levied of his whole estate, whereby A. 's will was 
 revoked, and the estate descended to B. ; the devisee under 
 the will called upon B. to hold the property as his trustee, 
 and he was so held by the court; Lord Eldon saying, " You, 
 who have been wanting in what I conceive to be the duty of 
 an attorney, if it happens that you get an advantage by that 
 neglect, you shall not hold that advantage, but you shall be 
 trustee of the property for the benefit of that person who 
 would have been entitled to it if you had known what, as an 
 
 1 Collins I'. Sullivan, 135 Mass. 461, 463. 
 
 (a) Theft and felony do not pre- 650 ; see Mutual Life Ins. Co. v. 
 vent the felon from being held a Armstrong, 117 U. S. 591 ; 41 Cent, 
 trustee. Kebraska Nat. Bank v. L. J. 377. Elsewhere it is held 
 Johnson, 51 Neb. 546; Grouch v. that the murder does not alter the 
 Hazlehurst L. Co. (Miss.), 16 So. will or the law of descent. Shellen- 
 Rep. 496. In England and New berger t;. Ransom, 41 Neb. 631 ; 31 
 York it is held that a person who Neb. 61; Owens y. Owens, 100 N.C. 
 kills another to secure the latter's 240; Holdom v. Ancient Order of 
 property by descent or devise, or to United Workmen, 159 111. 619; 
 prevent the revocation of his will. Carpenter's Estate, 170 Penn. St. 
 cannot, on the ground of public pol- 203 ; Deem v. Millikin, 6 Ohio Cir. 
 icy, take as heir or under the will. Ct. 357. The view is also main- 
 See Cleaver v. Mutual R. F. Life tained that the murderer, upon thus 
 Ass'n, [1892] 1 Q. B. 147 ; Riggs acquiring title, is a constructive 
 V. Palmer, 115 N. Y. 506; Eller- trustee. See Prof. J. B. Ames's 
 son V. Westcott, 148 N. Y. 149 ; article in 36 Am. L. Reg. N. s. 
 Lundy v. Lundy, 24 Can. Supr. Ct. 227. 
 25tj
 
 CHAP. VI.] ACTS PKEVKNTED BY FRAUD. [§ 182. 
 
 attorney, you ought to have known, and, not knowing it, you 
 shall not take advantage of your own ignorance."^ In such 
 cases it has been held that mere promises are not enough, 
 that there must be some proof of a fraudulent intent or j)ur- 
 posc to create a ti'ust; it is also held that such trust docs 
 not follow the jjroperty, but is only an agreement which 
 equity will enforce.''^ 
 
 § 182. While a court of equity will thus create a trust 
 where a person has by fraud prevented a will from being 
 made in favor of another, it has no jurisdiction to prevent 
 the probate of, or to set aside, a will fraudulently procured. 
 Ecclesiastical and common-law courts in England, and pro- 
 bate courts with the common-law courts in the United 
 States, alone have jurisdiction over wills. Thus, until 
 within a short period all wills in England were first pre- 
 sented to the ecclesiastical courts, and they were there 
 allowed or disallowed according to the evidence. If they 
 were allowed, the final judgment allowing them was conclu- 
 sive upon the personalty until such judgment was reversed 
 or annulled. The validity of such will, however, so far as 
 real estate was concerned, was tried in the courts of com- 
 mon law as often as the title to the separate parcels of land 
 was in controversy. Whenever in the prosecution or defence 
 of a real action such will of real estate Avas given in evi- 
 dence, not only its execution was tried, but its validity, as 
 whether it was obtained by undue influence or fraud, or 
 whether the testator was of sound mind. Courts of equity 
 in a few early cases assumed jurisdiction to set aside wills 
 procured by fraud,^ but it is now well settled that they will 
 not interfere, but that courts of common law have exclusive 
 jurisdiction; nor will they interfere to set aside the judg- 
 
 1 Rulkley v. Wilford, 2 CI. & Fin. 177 ; 8 Bligh (x. s), 11 ; Segrave v. 
 Kirwau, Boat. 157 ; Nanney r. Williams, 22 Beav. 4r)2. See Mix v. King, 
 55 111. 431. 
 
 2 Bedilian ?•. Seaton, 3 Wall. Jr. 280. 
 
 8 INIaiindy v. :Maundy, 1 Ch. R. 66; Well v. Thornagli, Pr. Ch. 123; 
 Goss V. Tracy, 1 P. AVnis. 287 ; 2 Veru. 700. 
 
 VOL. I. — 17 257
 
 § 182.] CONSTKUCTIVE TRUSTS. [CHAP. VI. 
 
 ment or probate of a will procured by fraud. ^ To set aside 
 such a judgment, proceedings must be had in the nature of 
 proceedings for a new trial in the court in which such 
 judgment or decree was passed. ^ The extent to which a 
 court of equity will go in correcting a fraud perpetrated in 
 relation to a will, is to give relief where fraud has pre- 
 vented a will from being made, or where a fraud has been 
 practised upon the legatee, as where a name is inserted 
 fraudulently in a will in place of the intended devisee or 
 legatee, or where the revocation of a will has been procured 
 or prevented by fraud,^ or where there is a gift to executors 
 under such circumstances that it ought to be a trust for 
 relations, or where a legatee promises the testator that he 
 will hand over the legacy to a third person.* In all these 
 cases the will itself is established, but certain other col- 
 lateral things are decreed growing out of the manner in 
 which the will was procured.^ In New York, New Jersey, 
 and South Carolina, the old English practice is followed, 
 and wills must be proved whenever they are used to estab- 
 lish or defeat the title to real estate, nor has a court of 
 equity jurisdiction to set them aside. This rule has been 
 modified in New York so far that when the title of real 
 
 1 Roberts v. Wynne, 1 Ch. R. 125; Herbert v. Lownes, id. 13; Archer 
 V. Mosse, 2 Vern. 8; Thynn v. Thynn, 1 Vern. 290; Devenish v. Baines, 
 
 1 Pr. Ch. 3; Barnesley v. Powell, 1 Ves. 287; Marriott v. Marriott, Str. 
 666 ; Plume v. Beale, 1 P. Wms. 388 ; Rockwood v. Rockwood, 1 Leon. 
 192; Cro. Eliz. 163; Dutton v. Poole, 1 Vent. 318; Beringer v. Beringer, 
 26 Car. II.; Chamberlain v. Chamberlain, 2 Freem. 34; Leicester v. Fox- 
 croft, Gilb. 11 ; Ketrick v. Barnsby, 3 Bro, P. C. 358 ; Webb v. Claverden, 
 
 2 Atk. 424 ; Bennett v. Vade, id. 324 ; Anon., 3 Atk. 17 ; Sheffield v. Buck- 
 ingham, 1 Atk. 628; Allen v. Macpherson, 5 Beav. 469; 1 Phili. 133; 
 1 H. L. Cas. 191 ; Murray v. Murphy, 39 Miss. 214. 
 
 2 Waters v. Stickney, 12 Allen, 1. 
 
 8 Bulkley v. Wilford, 2 CI. & Fin. 177; 8 Bligh (n. s.), 11; Segrave v. 
 Kirwan, Beat. 157 ; Nanney v. Williams, 22 Beav. 452 ; Dowd v. Tucker, 
 41 Conn. 198 ; Williams v. Vreeland, 29 N. J. Eq. 417. 
 
 4 Kennell v. Abbott, 4 Ves. 802; Marriott v. Marriott, Str. 666, cited 
 Gilbert, 203, 209 ; Williams v. Fitch, 18 N. Y. 546; 7 Sim. 644; 1 Watts, 
 163 ; Church v. Ruland, 64 Penn. St. 432. 
 
 6 Marriott v. Marriott, Str. & Gil. ut supra. 
 258
 
 CHAP. VI.] ACTS PREVENTED BY FRAUD. [§ 1,92. 
 
 estate depends upon a will, the validity of which is doubted, 
 and the parties are not in possession of the real estate, nor 
 in such a position that a real action can be brou^dit, or if 
 there is any technical reason why a real action cannot be 
 sustained, a court of equity will take jurisdiction to prevent 
 a failure of justice.' In nearly all the other States the 
 judgments of the courts of probate allowing a will arc con- 
 clusive upon all the world, both as to real and personal 
 estate. In all actions at law involving title under such 
 wills, it is only necessary to produce the judgment of the 
 probate court allowing them. Courts of equity have no 
 jurisdiction to set aside such wills for fraud, nor can they set 
 aside the judgments of the probate court allowing them.^ 
 If, however, a will is probated by accident or mistake, or 
 the probate is procured by fraud, the judgment may be 
 reversed or modified by proceedings in the same court in 
 the nature of a petition for a review or for a new trial. ^ 
 This, however, may depend upon the statutes of the several 
 States giving jurisdiction to their several courts of probate. 
 While courts of equity will not interfere to set aside wills 
 procured by fraud, or to set aside the probate of those pro- 
 cured by fraud, they will not interfere in favor of the 
 fraudulent party to enable him to establish any rights under 
 the will.* As a general rule neither courts of equity nor of 
 common law will take notice of a will for any purpose unless 
 it has been proved in the courts of probate having jurisdic- 
 tion over such matters.^ 
 
 1 Brady v. McCosker, 1 Comst. 214 ; Clarke v. Sawyer, 2 id. 498. 
 
 * Gould V. Gould, 3 Story, 510; Fouvergne v. New Orleans, 18 How. 
 470; Gaines v. Chew, 2 IIow. 645; Tarver v. Tarver, 9 Pet. 180: Adams 
 V. Adams, 22 Vt. 50; Cotton v. Ross, 1 Paige, 396; Muir u. Trustees, 
 3 Barb. Oh. 477; Ilaraberlin v. Tenny, 7 How. (Mi.ss.), 143; Lyne v. 
 Guardian, 1 Miss. 410; Hunter'.s Will, 6 Ohio, 499; Watson i;. Bothwell, 
 11 Ala. 653; Johnson v. Glasscock, 2 Ala, 233; Hunt v. Hamilton. 9 Dana, 
 90; McDowall v. Peyton, 2 Des. 313; Howell v. Wliitchurch, 4 Ileyw. 49; 
 Burrows v. Ragland, 6 Humph. 481 ; Blue v. Patterson, 1 Dev. & Bat. Eq. 
 459; Trexler v. Miller, 6 Tred. Eq. 248. 
 
 8 Waters v. Stickney, 12 Allen, 1. * Nelson v. Oldfield, 2 Vern. 76. 
 
 5 Price u. Dewhurst, 4 My. & Cr. 76, 80, 81 ; Gaines v. Chew, 2 How. 
 615, 646. 
 
 259
 
 § 183.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 § 183. Another instance of a constructive trust arising 
 from fraud in relation to deeds or wills, is where a party 
 has suppressed or destroyed a deed or other instrument of 
 title. Every one is entitled to aid from the judicial tribunals 
 in all cases of fraud, and if a defendant has fraudulently 
 suppressed or destroyed the evidence of a man's title, and is 
 in possession of the property himself, he ought to be declared 
 a trustee for the rightful owner under the suppressed paper ; ^ 
 and if a deed or will is destroyed or suppressed, a court of 
 equity can give relief. There seems to be no difficulty in 
 this matter so far as relates to deeds,^ nor so far as relates 
 to wills of real estate in those jurisdictions where a will 
 must be proved in court in every instance where it is neces- 
 sary to the title of real estate ; hut in jurisdictions where a 
 will cannot be noticed by other courts until it is first proved 
 in a court of probate, there is a difficulty in proceeding in 
 equity for fraud in suppressing it, except by a bill of dis- 
 covery of evidence to use in the courts of probate in prov- 
 ing the will. Accordingly it has been determined in some 
 States that a will cannot be acted upon in courts of equity, 
 although lost, destroyed, or suppressed, until it is first 
 proved in a probate court. ^ In other States, courts of equity, 
 in cases of suppressed or spoliated wills, have taken juris- 
 diction in odium spoliatoris, and have allowed such will to 
 be proved, and have carried its provisions into effect, as a 
 
 1 Bates V. Heard, Toth. 66 ; 1 Dick. 4; Tucker v. Phipps, 3 Atk. 360 
 Hayne v. Hayne, 1 Dick. 18; Eyton v. Eyton, 2 Vern. 280; Pr. Cb. 116 
 Dalstoii v. Coatsworth, 1 P. Wms. 731 ; Woodroff v. Burton, 1 P. Wms 
 734; Saltern v. Melhuish, Amb. 249; Cowper v. Cowper, 2 P. AVms. 748 
 Gartside v. Radcliffe, 1 Ch. Cas. 292 ; Hunt v. Mathews, 1 Vern. 408 
 Wardour i'. Beresford, id. 452 ; Downes v. Jennings, 32 Beav. 290 ; Ran- 
 som V. Rumsey, 2 Vern. 561 ; 1 P. AVms. 733 ; Hampden v. Hampden, 
 3 Bro. P. C. 550; 1 P. Wms. 733; Spencer v. Smith, 1 N. C. C. 75; Mid- 
 dleton V. Middleton, IJ. & W. 99 ; Wood v. Abrey, 3 Mod. 423 ; Floyer 
 1-. Sherrard, Amb. 18; Coles v. Trecothick, 9 Ves. 246 ; Law v. Barchard, 
 8 Ves. 133; White v. Damon, 7 Ves. 35; Moth r. Atwood. 5 Ves. 845; 
 Stephens v. Bateman, 1 Bro. Ch. 22 ; Griffith v. Spratley, 2 id. 179. 
 
 2 Ward /'. Webber, 1 Wash. (Va.) 274. 
 
 3 Morningstar v. Selby, 15 Ohio, 345; Gaines v. Chew, 2 How. 345; 
 Gaines v. Hennen, 24 How. 553. 
 
 260
 
 CHAP. VI.] IGNORANCE AND MISTAKE. [§ 184. 
 
 court of probate would have done if the will had been pro- 
 duced and regularly administered.' 
 
 § 184. If a party in ignorance and mistake of his rights 
 and interests execute a conveyance, although no fraud is 
 practised upon him, a court of equity will relieve against 
 the instrument; for it is against good conscience to take 
 advantage of one's ignorance to obtain his property. ^ Tlius, 
 if an heir, in ignorance of the value of his inheritance,^ or 
 in ignorance that some legacies or devises had lapsed,* 
 should convey his interest for an inadequate consideration, 
 equity would convert the purchaser into a trustee. And if 
 the purchaser should have full knowledge, or should stand 
 in any confidential relation, or should practise the slightest 
 art to mislead or conceal, the equities would of course be 
 much stronger against the transaction;^ but these circum- 
 stances are not necessary to avoid the conveyance, for relief 
 will be granted where both parties are in a mutual state of 
 ignorance, or are laboring under the same mistake.^ It is 
 to be observed, however, that the ignorance or mistake which 
 entitles a party to relief must be as to some matter of fact ; 
 
 1 Bailey v. Stiles, 1 Green, Ch. 220 ; Allison v. Allison, 7 Dana, 90 ; 
 Legare v. Ashe, 1 Bay, 464; Meade c. Langdon, cited 22 Vt. 59; Buchanan 
 r. Matlock, 8 Humph. 390. In New York, the matter is regulated by 
 statute, and courts of equity or the Supreme Court has exclusive jurisdic- 
 tion in case of a lost or spoliated will. Bowen v. Idley, 6 Paige, 40; Bulk- 
 ley V. Redmond, 2 Brad. Sur. 281. 
 
 2 Bingham r. Bingham, 1 Ves. 126; Ramsden v. Hylton, 2 Ves. 394; 
 Turner r. Turner, 2 Ch. R. 81; Dunnage *•. White, 1 Swanst. 137; Naylor 
 V. Wynch,l S. & S. 564; Evans v. Llewellyn, 2 Bro. Ch. 150; 1 Cox, 333; 
 Gossmour v. Pigge, 8 Jur. 526; McCarthy v. Decaix, 2 R. & M. 614; 
 lluguenin v. Baseley, 14 Ves. 273; Ilore r. Beecher, 12 Sim. 4Q')\ Mar- 
 shall /•. Collett, 1 Y. & Col. Exch. 238 ; Midland Great Western Ry. r. 
 John.son, 6 H. L. Cas. 811. 
 
 8 Beard v. Campbell, 2 A. K. :\Iarsh. 125; Tyler r. Black, 13 How. 
 231. 
 
 * Pusey r. Desbouvrie, 3 P. Wms. 316. 
 
 6 Gossmour r. Pigge, 13 L. J. Ch. 322; Tyler v. Black, 13 How. 231; 
 McCarthy v. Decaix, 2 R. & M. 222 ; Cocking >: Pratt, 1 Ves. 400. 
 
 ^ Ibid.; Lansdowne c. Lausdowne, 2 J. Ik W. 205; Mose. 364; Willan 
 V. Willan, 16 Ves. 72. 
 
 261
 
 § 184.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 and that mistake or ignorance of the law, or of the conse- 
 quences that will follow from the conveyance, will not en- 
 title a party to relief.^ (a) This rule is established by reason 
 of the great danger of abuse that would arise if parties were 
 allowed to reclaim their property upon allegations that they 
 were ignorant of the law, or mistook the consequences of 
 their acts.^ Thus, if a party has full knowledge of all the 
 facts, and intends to do the acts or execute the instruments 
 in question in the form in which they are executed, he can- 
 not have relief because he was ignorant of or mistook the 
 law, or because the consequences which legally and naturally 
 follow from the transaction are different from what he 
 expected. 3 But if there is a mistake in the instrument 
 itself, and it contains what was not agreed or intended, 
 or does not contain all that was agreed and intended, to be 
 in the writing, equity will give relief.* And if there are 
 
 1 Marshall v. Collett, 1 Y. & C. Exch. 238 ; Midland Great Western 
 Ry. V. Johnson, 6 H. L. Cas. 811; Hunt v. Rousmaniere, 1 Pet. 1; Brown 
 V. Ingham, 1 Bro. Ch. 92; PuUen r. Ready, 2 Atk. 591; Magniac v. 
 Thompson, 2 Wall. Jr. 209 ; Campbell r. Carter, U 111. 286; Hall v. Read, 
 2 Barb. Ch. 503 ; Brown v. Armistead, 6 Rand. 594 ; Hinchman v. Emans, 
 Saxt. 100; Freeman v. Cook, 6 Ired. Eq. 378; Gunter v. Thomas, 1 Ired. 
 Eq. 199 ; Crofts v. Middleton, 2 K. & J. 194 ; Wintermute v. Snyder, 
 2 Green, Ch. 498; Farley v. Bryant, 32 Maine, 474 ; Freeman v. Curtis, 
 51 id. 140; Fergersou v. Fergerson, 1 Ga. Dec. 135. 
 
 2 Bilbie v. Lumley, 2 East, 472 ; Lyon v. Richmond, 2 Johns. Ch. 51 ; 
 Shotwell V. Murray, 1 id. 512 ; Storrs v. Barker, G id. 169 ; Proctor v. 
 Thrall, 22 Vt. 262. 
 
 3 Storrs r. Barker, 6 Johns. Ch. 169; Lyon v. Saunders, 23 Miss. 124; 
 Shafer v. Davis, 13 111. 395 ; Emmett v. Dewhirst, 8 Eng. L. & Eq. 83 ; 
 Hunt r. Rousmaniere, 1 Pet. 1 ; Farley v. Bryant, 32 Maine, 474 ; Free- 
 man V. Curtis, 51 id. 140 ; Mellish v. Robertson, 25 Vt. 608 ; Gilbert v. 
 Gilbert, 9 Barb. 532 ; Arthur v. Arthur, 10 Barb. 9. 
 
 * Heacock i-. Fly, 14 Pa. St. 541; Larkius v. Biddle, 21 Ala. 256; 
 
 (a) AUcard v. Skinner, 36 Ch. D. intervening rights are affected, a 
 
 145; Fry v. Lane, 40 Ch. D. 312; court of equity may direct such 
 
 Goode V. Riley, 153 Mass. 585. In discharge to be cancelled and the 
 
 Massachusetts, if by mistake a dis- assignment substituted. Short w. 
 
 charge of a mortgage is taken Currier, 153 Mass. 182. 
 instead of an assignment, and no 
 262
 
 CHAP. VI.] IGNORANCE AND MISTAKE. [§ 185. 
 
 any other ingredients in the case, as if there is joined to a 
 party's ignorance or mistake of the law some practice upon 
 him to lead him into the bargain,^ or if the other party, 
 knowing his ignorance or mistake, still suffers him to go on 
 without information, 2 equity will give relief. If there are 
 any exceptions to the rule that ignorance or mistake of the 
 law is not a ground for relief, they are few in number, and 
 have something peculiar in their character, which calls in 
 other elements of equity, or they stand upon some urgent 
 pressure of circumstances. ^ 
 
 § 185. When a conveyance is made to compromise claims 
 which the parties deem doubtful,* and especially if the con- 
 veyance has for its object the settlement of family contro- 
 versies,^ courts will support it if possible, although founded 
 in ignorance or mistake of facts, as well as of law; provided 
 no fraud has been used to mislead and deceive the party 
 executing the conveyance.^ 
 
 Wyche r. Green, 11 Ga. 169; IG Ga. 49; Moser r. Lebenguth, 2 Rawle, 
 428 ; Fitzgerald v. Peck, 4 Litt. 127. 
 
 1 1 Story's Eq. Jur. § 133. 
 
 2 Cook iJ. Nathan, 16 Barb. 342; Langstaffe r. Fenwick, 10 Ves. 405. 
 
 * State V. Paup, 13 Ark. 135; Hunt v. Rousmaniere, 1 Pet. 1; 1 Story's 
 Eq. Jur. §§ 116, 137. 
 
 * Brown c. Pring, 1 Ves. 407; Cann r. Cann, 1 P. Wms. 727; Naylor 
 V. Winch, 1 Sim. & S. 555 ; Goodman v. Sayers, 2 J. & W. 263 ; Picker- 
 ing V. Pickering, 2 Beav. 91; Stewart v. Stewart, 6 CI. & Fin. 699 ; Gib- 
 bons V. Caunt, 4 Ves. 849; Neale v. Neale, 1 Keen, 672; Att. Gen. r. 
 Boucherett, 25 Beav. 110; Wiles v. Greshon, 5 De G., M. & G. 770: Brad- 
 ley *'. Chase, 22 Maine, 511 ; Richardson v. Eyton, 15 Eng. L. & Eq. 51 ; 
 2 De G., M. & G. 79. 
 
 6 Currie v. Steele, 2 Sandf. 542 ; Stone r. Godfrey, 27 Eng. L. & Eq. 
 318 ; 5 De G., M. & G. 76 ; Gordon r. Gordon, 3 Swanst. 463, 476 ; Stock- 
 ley r. Stockley, 1 V. & B. 29 ; Bellamy v. Sabine, 2 Phill. 425; Stapilton 
 r. Stapilton, 1 Atk. 10; 3 Lead. Cas. Eq. 084; Cann *•. Cann, 1 P. Wms. 
 727 ; Pers.se r. Persse, 1 West, 110; 7 CI. & Fin. 279; Cory r. Cory, 
 1 Vos. 19; Heap v. Tonge, 7 Eng. L. & Eq. 189 ; 9 Hare, 90 ; Leonard c. 
 Leonard, 2 Ball & B. 171 ; Dunnage v. White, 1 Swanst. 137; Harvey v. 
 Cook, 4 Russ. 34; Jodrell v. Jodrell, 9 Beav. 45 ; Frank v. Frank, 1 Ch. 
 Cas. 84. 
 
 6 Smith V. Piucombe, 10 Eng. L. & Eq. 50 ; 3 Mac. & G. 653 ; C; roves 
 
 263
 
 § 186.] CONSTRUCTIVE TRUSTS. [CIIAP. VI. 
 
 § 186. If a deed is drawn by accident or mistake to em- 
 brace property not intended by the parties, equity will con- 
 strue the grantee to be a trustee, and will execute the trust 
 by reforming the deed or by ordering a reconveyance. It 
 would be against natural right to allow a person to hold 
 property which he never intended to buy, and which has 
 come to him by such mistake.^ If by a mistake of a third 
 party land is deeded to the husband instead of the wife, as 
 it should have been by reason of the consideration and the 
 agreement, the husband holds in trust for her.^ But courts 
 require the most full and satisfactory proof before they will 
 vary by parol evidence the contract between the parties, as 
 written and signed by them,^ and will not give relief unless 
 the mistake is common to both parties,* except the case is 
 such that the parties may be restored to their original situa- 
 tion.^ But fraud on one party and mistake on the side of 
 the other is a good cause for setting aside a transaction.^ 
 
 V. Perkins, 6 Sim. 576 ; Hoge v. Hoge, 1 Watts, 163 ; Dunnage v. White, 
 1 Swanst. 137 ; Evans v. Llewellyn, 1 Cox, 333 ; 2 Bro. Ch. 150 ; Towns- 
 hend v. Stangroom, 6 Ves. 333 ; Chesterfield v. Janssen, 2 Ves. 155; Or- 
 mond V. Hutchinson, 13 Ves. 51 ; Henly v. Cook, 4 Russ. 34; Staiuton 
 V. Carson Co., 6 Jur. (n. s.) 360 ; Ashurst v. I\Iill, 7 Hare, 502; Lawton 
 V. Campion, 18 Beav. 87 ; Bennett v. Merriman, 6 Beav. 360 ; Hogton v. 
 Hogton, 15 Beav. 278 ; 11 Eng. L. & Eq. 134. 
 
 1 Exeter v. Exeter, 3 M. & Cr. 321 ; Lindo v. Lindo, 1 Beav. 496 
 Ramsden v. Hylton, 2 Ves. 304 ; Beaumont v. Bramley, T. & R. 52 
 Underhill v. Horwood, 10 Ves. 225 ; Canedy v. Marcy, 13 Gray, 373 
 Brov?n v. Laraphear, 35 Vt. 252 ; Green v. Morris, 1 Beasley, 370; Rich- 
 ardson V. Bleight, 8 B. Mon. 580; Whaley v. Eliot, 1 A. K. Marsh. 343; 
 Belknap v. Scaley, 2 Duer, 570 ; Gray v. Woods, 4 Blackf. 432 ; Peters 
 V. Goodrich, 3 Conn. 146; Oliver v. Ins. Co., 2 Curtis, 277 ; Tilton v. 
 Tilton, 9 N. H. 385 ; Farley v. Bryant, 32 Maine, 474 ; Loss v. Obry, 22 
 N. J. Eq. 52. 
 
 2 Lide V. Law, 27 Kans. 242. 
 
 8 Sawyer v. Hovey, 3 Allen, 331 ; Gillespie v. Moore, 2 Johns. Ch. 585 ; 
 Andrews v. Essex Ins. Co., 3 Mason, 10 ; 1 Story's Eq. Jur. § 157. 
 
 ^ Andrews v. Essex Ins. Co., 3 Mason, 10 ; Bradford v. Romney, 30 
 Beav. 431. 
 
 6 Garrard v. Fankell, 30 Beav. 445; Harris v. Pepperell, L.R. 5 Eq. 1. 
 
 6 Bloodgood V. Sears, 64 Barb. 76 ; Welles v. Yates, 44 N. Y. 525. 
 264
 
 CHAP. VI.] INADEQUACY OF CONSIDERATION. [§ 187. 
 
 § 187. Lord Hardwicke, in his analysis of the various 
 kinds of fraud, stated one species to be "fraud apparent 
 from the intrinsic value and subject of the bargain, such as 
 no man in his senses, and not under delusion, would make 
 on the one hand, and as no honest or fair man would accept 
 on the other. "^ The meaning of this is, that fraud may be 
 proved by the inadequacy of the consideration paid for 
 property by the purchaser on the one hand,^ or the consid- 
 eration may be so extravagantly large on the other,^ as to 
 show that the purchaser was imposed upon. It is to be 
 observed, however, that the consideration alone, whether too 
 large or too small, cannot of itself prove fraud in a trans- 
 action, for the reason that a mere voluntary conveyance, 
 without any consideration, is good and valid between the 
 parties. On the same ground mere inadequacy of considera- 
 tion will not vitiate a deed,* and so if a party, knowing that 
 the consideration is inadequate, enters into the agreement 
 with his eyes open, he cannot have relief.^ It is only where 
 some fraud is practised upon a party that the consideration 
 
 1 Chesterfield v. Janssen, 2 Ves. 155; Harvey v. Mount, 8 Beav. 439. 
 
 2 Ibid.; Rosevelt v. Fulton, 2 Cow. 129 ; McDonald v. Neilson, 2 Cow. 
 139. 
 
 8 Cockell ». Taylor, 15 Beav. 103. 
 
 * Pickett V. Loggou, 14 Ves. 215 ; Reynell v. Sprye, 8 Hare. 222 ; 1 De 
 G., M. & G. 600; Howard v. Edgell, 17 Vt. 9 ; Osgood r. Franklin, 2 
 Johns. Ch. 1 ; 14 Johns. 527 ; Butler v. Haskell, 4 Des. 651 ; Erwin v. 
 Perham, 12 How. 197 ; Judge v. Wilkins, 19 Ala. 765 ; McCorraick v. 
 Malin, 5 Blackf. 509; Delafield v. Anderson, 7 S. & M. 630: Farmers 
 Bank v. Douglass, 11 S. & M. 4n9 ; Robinson v. Robinson, 4 Md. Ch. 183 ; 
 Powers V. Hale, 5 Foster, 145 ; Dun i'. Chambers, 4 Barb. 376 ; Mann v. 
 Betterly, 21 Vt. 326; Green v. Thompson, 2 Ired. Eq. 365; White v. 
 Flora, 2 Overt. 426 ; Forde v. Ilerron, 4 Munf. 316 ; Holmes i'. Fresh, 9 
 ^liss. 201; Young v. Frost, 5 Gill, 287; Coster v. Griswold, 4 Edw. 364; 
 Westervelt v. IVIatheson, 1 Hoff. 37; Davidson v. Little, 27 Penn. St. 251; 
 Coles V. Trecothick, 9 Ves. 246 ; INIoth v. Atwood, 5 Ves. 845 ; White u. 
 Damon, 7 Ves. 35: Low v. Barchard, 8 Ves. 133; Griffith v. Spratley, 2 
 Bro. Ch. 179 ; Stephens v. Bateman, 1 id. 22 ; Wood v. Abrey, 3 :\Iadd. 
 423 ; Floyer v. Sherrard, Amb. 18; Harrison v. Guest, 6 De G., M. & G. 
 424; 8 H. L. Cas. 481 ; Denton r. Donner, 23 Beav. 285; Eyre v. Potter, 
 15 How. 60 ; Cliaires v. Brady, 10 Fla. 133. 
 
 6 Willis i;. Jcrnegan, 2 Atk. 251. 
 
 265
 
 § 187.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 of a conveyance is material.^ If it appears that a person 
 intended to convey his property for a consideration reason- 
 ably proportionate to its value, but that in fact the consid- 
 eration received was grossly inadequate, then a court of 
 equity would infer that some fraud or deceit had been prac- 
 tised upon him; 2 or, as Lord Thurlow said, "where the 
 inadequacy of the consideration is so gross and manifest 
 that it is impossible to state it to a man of common sense 
 without producing an exclamation at the inequality of it,^ 
 the court will infer from that fact alone, that there must 
 have been such imposition or oppression in the transaction, 
 or such a want of common understanding in the party, as to 
 amount to a case of fraud, from which no advantage or bene- 
 fit ought to be derived by the other party. " * Other authori- 
 ties say that courts will act on the fact alone of inadequacy 
 of consideration when it is so gross and manifest as to shock 
 the conscience.^ This principle is loose enough,^ if it is a 
 principle, and of course every case would depend upon its 
 own facts and circumstances. Where there are suspicious 
 circumstances connected with the fact of inadequacy of 
 
 1 Huguenin v. Baseley, 14 Ves. 273 ; Wormack v. Rogers, 9 Ga. 60; 
 How V. Weldon, 2 Ves. 516; Mann v. Betterly, 21 Vt. 326. 
 
 2 Gwynne v. Heaton, 1 Bro. Ch. 8 ; Baugh v. Price, 3 "Wilson, 320 ; 
 Eyre v. Potter, 15 How. 60 ; Butler v. Haskell, 4 Des. 652 ; Barnett v. 
 Spratt, 4 Ired. Eq. 171 ; "VVright v. Wilson, 4 Yerg. 294 : Juzan v. Toul- 
 min, 9 Ala. 692. 
 
 8 Gwynne v. Heaton, 1 Bro. Ch. 8; Hamet v. Dundass, 4 Barr, 178. 
 
 * Heathcote v. Paignon, 2 Bro. Ch. 175 ; Underhill v. Horwood, 10 
 Ves. 219; Ware v. Horwood, 14 Ves. 28 ; Stilwell v. Wilkinson, Jac. 282 ; 
 Barnett v. Spratt, 4 Ired. Eq. 171. 
 
 6 Horsey v. Hough, 38 Md. 130; Coles v. Trecothick, 9 Ves. 246 ; Os- 
 good V. Franklin, 2 Johns. Ch. 1 ; 14 Johns. .527 ; Gwynne v. Heaton, 
 1 Bro. Ch. 9; Underhill v. Horwood, 10 Ves. 209; Peacock v. Evans, 16 
 Ves. 512; Wright v. Wilson, 2 Yerg. 294: Deaderick v. Watkins, 8 
 Humph. 520; Stilwell v. Wilkinson, Jac. 280; Copis v. Middleton, 2 
 Madd. 409 ; Howard v. Edgell, 17 Vt. 9; Butler v. Haskell, 4 Des. 652; 
 Eyre v. Potter, 15 How. 60; Gist v. Frazier, 2 Litt. 118; Seymour v. 
 Delancy, 6 Johns. Ch. 222; Juzan v. Toulmin, 9 Ala. 692; James v. 
 Morgan, 1 Lev. Ill ; Rice v. Gordon, 11 Beav. 215; Booker v. Anderson, 
 35 111. 66. 
 
 « Gibson v. Jeyes, 6 Ves. 273 ; Warfield v. Ross, 38 Md. 85. 
 266
 
 CnAI'. VI.] CONTRACTS WITH HEIRS. [§ 188. 
 
 price, as where the parties stand in a fiduciary relation to 
 each other,' or one oi' them is in distress,^ or is ignorant,^ or 
 is weak-minded and imbecile,* inadequacy of consideration 
 will become very pertinent, and oftentimes conclusive evi- 
 dence that fraud and undue influence have been used to bring 
 about a bargain advantageous to the one side and ruinous to 
 the other. 
 
 § 188. Immediately connected with this subject is the sale 
 by an heir or reversioner of his expectancy or reversionary 
 interest. It is said that " it is incumbent upon those who 
 deal with an expectant heir, relative to his reversionary 
 interest, to make good the bargain; that is, to be able to 
 show that a full and adequate consideration was paid. In 
 all such cases the issue is upon the adequacy of the price. 
 No proof of fraud is necessary ; and the relief is given upon 
 general principles of mischief to the public, without requir- 
 ing particular evidence of actual imposition."^ Such a pur- 
 chase is a constructive fraud, and the purchaser, if a 
 stranger, will be compelled to account and to give up the 
 bargain, if found to be advantageous.^ A sale by an heir 
 will not be supported against him unless it is perfectly fair 
 
 ^ Ilerne v. Meeres, 1 Vern. 456 ; Gibson v. Jeyes, 6 Ves. 2G6 ; ShaefEer 
 V. Sleade, 7 Blackf. 178; Brooke r. Berry, 2 Gill, S3 ; "Wright v. "Wilson, 
 2 Yerg. 291 ; Butler v. Haskell, 4 Des. 680. 
 
 2 Cockell V. Taylor, 15 Beav. 103; "Warfield v. Ross, 38 Md. 85. 
 
 * Heme v. Meeres, 1 Vern. 456 ; Pickett v. Loggon, 14 "\"es. 215 ; Mur- 
 ray V. Palmer, 2 Sch. & Lef. 477; Gwynne v. Ileaton, 1 Bro. Ch. 1; 
 "Wood V. Abrey, 3 Madd. 417; McKinney v. Pinkard, 2 Leigh, 149; 
 Gasque v. Small, 2 Strob. Eq. 72 ; Esham v. Lamar, 10 B. Mon. 43; But- 
 leru. Haskell, 4 Des. 680; Cookson v. Richardson, 69 111. 137. 
 
 * Clarkson v. Hanway, 2 P. Wms. 203 ; Gartside r. Isherwood, 1 Bro. 
 Ch. 558; Stanhope r. Toppe, 2 Bro. P. C. 183 ; McArtee c. Engart, 13 111. 
 242; Wormack i: Rogers, 9 Ga. 60; How c. "Weldon, 3 Ves. 517; Addis 
 t'. Campbell, 4 Beav. 401 ; Ilolden i: Crawford, 1 Atk. 390 ; Maun r. Bet- 
 terley, 21 Vt. 326; Crane v. Conkliu, Saxt. 346; Brooke v. Berry, 2 Gill, 
 83; Rumph r. Abercrombie, 12 Ala. 64. 
 
 6 Sir AVilliara Grant, in Gowland v. De Faria, 17 Ves. 20. 
 
 « Jenkins /•. Pye, 12 Pet. 258 ; Call v. Gibbons, 3 P. Wms. 290 ; Bar- 
 nardiston v. Lingood, 2 Atk. 133; "Walmesley v. Booth, id. 28; Gwynne 
 t'. Heaton, 1 Bro. Ch. 10. 
 
 267
 
 § 188.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 in every respect, and beyond suspicion, and for an adequate 
 price. ^ The burden is upon the purchaser to show the 
 fairness of the transaction and the sufficiency of the consid- 
 eration, and not upon the heir to impeach either the one or 
 the other; 2 and it is said that it is immaterial that the heir 
 is of mature age.^ In this country the rule may be stated 
 with still more severity, that the sale, by an heir, of his 
 expectancy during the life of the ancestor, is contrary to 
 public policy and is void, unless such sale is assented to by 
 the ancestor, and supported by an adequate considera- 
 tion.* (a) If, however, the sale is at auction, it will be some 
 proof of fairness and sufficiency of price, ^ and if the sale is 
 made with the knowledge and assent of the ancestor it will 
 be good.^ (5) But it seems that the rule is confined to those 
 
 1 Kuott V. Hill, 1 Vern. 167; Westerfield v. Janssen, 2 Ves. 125; 
 1 Lead. Cas. Eq. 428-494, Eng. and Am. notes ; Bawtree v. Watson, 3 M. 
 & K. 339 ; Portmore v. Taylor, 4 Sim. 182 ; Peacock v. Evans, 16 Ves. 
 512 ; Newton v. Hunt, 5 Sim. 54 ; Talbot v. Staniforth, 1 John. & H. 
 484; Foster v. Roberts, 29 Beav. 467; Jones v. Ricketts, 31 Beav. 130; 
 Salter v. Bradshaw, 26 Beav. 161 ; Bm-y v. Oppenheim, id. 594 ; King v. 
 Hamlet, 4 Sim. 223; 2 M. & K. 456; Denton v. Donner, 23 Beav. 285; 
 Hannah v. Hodgson, 30 Beav. 19 ; St. Albyn v. Harding, 27 Beav. 11; 
 Nesbitt V. Berridge, 32 Beav. 282 ; Perfect v. Lane, 31 L. J. Ch. 489 ; 
 Edwards v. Burt, 2 De G., M. & G. 55; Aldborough v. Frye, 7 CI. & Fin. 
 436. 
 
 2 Gowland v. De Faria, 17 Ves. 24; Coles v. Trecothick, 9 Ves. 246; 
 Davis I'. Marlborough, 2 Swanst. 141 ; Portmore i\ Taylor, 4 Sim. 209 ; 
 Shelley v. Nash, 3 Madd. 236 ; Nimmo v. Davis, 7 Tex. 260 ; Poor v. 
 Hazleton, 15 N. H. 564. 
 
 8 Davis Z7. Marlborough, 2 Swanst. 146 ; Evans v. Cheshire, Belt, Supp. 
 305; Addis v. Campbell, 4 Beav. 401. 
 
 4 Varick v. Edwards, 1 Hoff. 383 : Boynton w. Hubbard, 7 Mass. 112; 
 Fitch v. Fitch, 8 Pick. 480 ; Trull r. Eastman, 3 Met. 121 ; Poor v. Hazle- 
 ton, 15 N. H. 564; Nimmo r. Davis, 7 Tex. 266; Jenkins v. Pye, 12 Pet. 
 257 ; Davidson v. Little, 22 Penn. St. 252. 
 
 6 Fox V. Wright, 6 Madd. Ill ; Shelley v. Nash, 3 Madd. 232 ; New- 
 man V. Meek, 1 Freem. Ch. 441 ; Erwin v. Parham, 12 How. 197. 
 
 « Fitch V. Fitch, 8 Pick. 480 ; Trull v. Eastman, 3 Met. 121 ; Nimmo 
 
 (a) See Aylesford v. Morris, L. Hale ;;. Hollon (Texas), 39 S. W. 
 
 R. 8 Ch. 484 ; Fry v. Lane, 40 Ch. 287. 
 
 D. 321 ; James v. Kerr, id. 460 ; (&) Where the heir deals, not be- 
 
 McClure v. Raben, 133 Ind. 507; hind his father's back, but with his 
 268
 
 CHAP. VI.] MENTAL WEAKNESS. [§ 189. 
 
 expectancies that combine the relation of heir with that of 
 reniainder-nian and reversioner. Jf the expectant is not 
 heir, but is simi)ly entitled to a remainder or reversion by 
 virtue of some instrument or settlement, he may sell and 
 assign his future interest, and such sale will not be avoided 
 unless some of the common rules of equity are violated by 
 the purchaser. In such cases there is no fraud ui)on parents 
 or third persons, consequently there is nothing contrary to 
 public policy in such i)urcha8e8.^ 
 
 § 189. Another kind of constructive trust arises from the 
 mental incapacities of parties to enter into contracts. Thus 
 a non compos mentis cannot make a binding contract. ^ The 
 deed of such person is either absolutely void, or at least 
 voidable,^ and equity will give relief by declaring a party 
 
 V. Davis, 7 Tex. 266; King v. Hamlet, 2 M. & K. 450 ; 3 CI. & ¥. 218. 
 In Ohio, however, it has been held that a contract is invalid by which a 
 son released to his father, in considenition of an advancement, all his ex- 
 pectancies upon the father's estate. Xeedles c. Needles, 7 Ohio St. 432. 
 The case is not sustained by other authorities, and seems not to rest upon 
 the principles applicable to such transactions. 
 
 1 Cribbins v. Markwood, 13 Grat. 495; Dunn v. Chambers, 4 Barb. 
 376 ; Davidson v. Little, 22 Penn. St. 252 ; Wiseman v. Beake, 2 Vern. 
 121 ; Cole v. Gibbons, 3 P. Wms. 290; Barnardiston v. Lingood, 2 Atk. 
 133 ; Bowers v. Heaps, 3 V. & B. 117 ; Davis v. Marlborough, 2 Swanst. 
 130; Addis v. Campbell, 4 Beav. 401 ; Nickolls v. Gould, 2 Yes. 422; 
 Henley v. Axe, 2 Bro. Ch. 17; 2 Swanst. 141; Griffith v. Spratley, 2 Bro. 
 Ch. 179; 1 Cox, 383; Moth v. Atwood, 5 Ves. 845; Montesquieu v. San- 
 dys, 18 Ves. 302. The peculiar character and position of sailors call 
 for the interposition of courts when they are defrauded, and when one 
 has sold his prize-money for a small sum, the Master of the Rolls said 
 that it was reasonable to regard them as young heirs, and to relieve them 
 accordingly. How v. Weldon, 2 Ves. 515. 
 
 2 Chesterfield r. Janssen, 2 Ves. 155. 
 
 ' Allis V. Billings,0 Met. 415; Breckenridge v. Ormsby, 1 J. J. IMarsh. 
 239; Price r. Berrington, 3 Mac. & G. 486 ; Molton v. Camroux, 2 Exch. 
 487; 4 Exch. 17; De Silver's Est., 5 Rawl. Ill; Bensell v. Chancellor, 
 5 AMiart. 376; Beals v. Lee, 10 Barr. 56. 
 
 sanction and assistance, and has all into without such paternal protec- 
 
 the protection that his father can tion. O'Rorke r. Bolingbroke, 2 A. 
 
 give him, he is not entitled to relief C. 814, 828. 
 as if the contract had been entered 
 
 269
 
 § 189.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 taking under such a conveyance to be a trustee, and by 
 ordering him to execute a reconveyance.^ Whether a 
 person has capacity enough to make a contract, is always a 
 question of fact in each particular case ; for mere weakness 
 of mind, not amounting to idiocy or insanity, is no ground 
 for avoiding a contract. Courts cannot measure the extent 
 of a party's understanding. If, therefore, a person is not 
 an idiot nor an insane person, he may enter into contracts, 
 although he may be of a low order of intelligence and of 
 weak reasoning powers. ^ At the same time such persons are 
 easily imposed upon and defrauded; and if it appears that 
 one of the parties to a contract is of weak mind and feeble 
 powers, the whole transaction will be carefully investigated, 
 and the conduct of the person procuring such contract will 
 be closely scrutinized ; for arts and practices that would be 
 perfectly harmless in a transaction with a man of high 
 intelligence and prudence and great power of observing and 
 reasoning may, and probably would, deceive and mislead a 
 person of weak mind and feeble powers, although not in- 
 capable of entering into contracts and transacting business 
 generally.^ Therefore the weakness of a party's mind is a 
 very material fact in determining the character of a trans- 
 action, and if, in contracts with such persons, there is found 
 the least art or stratagem, or any undue influence, or any 
 
 1 Rushloyr. Mansfield, Toth. 42; Mansfield's Case, 12 Co. 123; Addi- 
 son y. Mascall, 2 Vern. 678; 3 Atk. 110; Price v. Berrington, 7 Hare, 
 394; 3 Mac. & G. 486; Addison v. Dawson, 2 Vern. 678; Welby v. 
 T^^e]by, Toth. 164; Wright r. Booth, id. 166; Wilkinson v. Brayfield, 2 
 Vern. 307; Clark v. Ward, Pr. Ch. 150; Ferres v. Ferres, Eq. Ab. 695; 
 Att. Gen. v. Parnther, 3 Bro. Ch. 441. 
 
 2 Osmond v. Fitzroy, 3 P. Wms. 130 ; Willis v. Jernegan, 2 Atk. 251 ; 
 1 Story's Eq. Jur.§ 235; Ex parte Allen, 15 Mass. 58; Hadley v. Latimer, 
 3 Yerg. 537; Mann ;;. Betterley, 21 Vt. 326; Thomas v. Sheppard, 2 Mc- 
 Cord, Eq. 36 ; Rippy v. Gaiit, 4 Ired. Eq. 447 ; Mason v. Williams, 3 
 ]\Iunf. 126; Morrison v. McLeod, 2 Dev. & Bat. Eq. 221 ; Green v. Thomp- 
 son, 2 Ired. Eq. 365; Bath & Montague's Ca., 3 Ch. Cas. 107. 
 
 8 Bridgman v. Green, Wilm. 61 ; 2 Ves. 627 ; Donnegal's Case, id. 
 407; Gartside v. Isherwood, 1 Bro. Ch. 560 ; Blackford v. Christian, 1 
 Knapp, 77; Dunn v. Chambers, 4 Barb. 376; Clark v. Malpas, 4 De G., 
 F. & J. 401. 
 270
 
 CHAP. VI.] MENTAL WEAKNESS. [§ 189. 
 
 inj^rcdicnt of fraud or suspicion of unfairness, courts will 
 set the contract aside, or convert the oO'cndinj^ party into a 
 trustee.^ Upon these principles, if the contract is of an 
 unusual, unreasonable, or extraordinary character,^ or if it 
 is without consideration, or upon an inadequate considera- 
 tion,^ or if the instrument falsely recites a consideration,^ 
 or if there is actual proof of undue influence, (a) or of art 
 or circumvention,^ or if there is a fiduciary, confidential, or 
 
 J GrifTin v. De Veulle, 3 Wood. Lect. App. 16 ; Nottige v. Prince, 2 
 Gif. 240; Longmate v. Ledger, id. 157; Baker v. Monk, 33 Beav. 419 5 
 Boyse v. Rossborough, 6 II. L. Cas. 2; Harding v. Handy, 11 Wheat. 
 103 ; Tracey v. Sackett, 1 Ohio St. 54 ; Whitehorn v. Ilines, 1 Munf. 
 557 ; Whelan v. Whelan, 3 Cow. 537; Deatly v. Murphy, 3 A. K. Marsh. 
 472; Brogdeu v. Walker, 2 II. & J. 285; Rumph v. Abercrombie, 12 
 Ala. 64. 
 
 ^ Fane v. Devonshire, 2 Bro. P. C. 77 ; Bridgman v. Green, 2 Ves. G27 ; 
 Dent r. Bennett, 7 Sim. 539; 4 M. & Cr. 629 ; Malin v. Malin, 2 Johns. 
 Ch. 238; Bennett v. Vade, 2 Atk. 235; Nantes v. Corrock, 9 Ves. 181; 
 Willan V. Willan, 16 Ves. 72; Ball v. Maurice, 3 Bligh (n. s.), 1; 1 Dow 
 (N. s.), 392. 
 
 8 Ibid., Clarkson v. Hanway, 2 P. Wms. 203 ; Gartside v. Isherwood, 
 
 I Bro. Ch. 558 ; Hutchinson i: Tindall, 2 Green.- Ch. 357 ; Rumph u. 
 Abercrombie, 12 Ala. 64; Fillmer v. Gott, 7 Bro. P. C. 70; Hunt v. 
 Moore, 2 Barr, 105. 
 
 * Gibson v. Russell, 2 Younge & C. Ch. 104; Harvey v. Mount, 8 Beav. 
 439. 
 
 * Portington v. Eglington, 2 Vern. 189 ; Gartside v. Isherwood, 1 Bro. 
 Ch. 558; Bridgman v. Green, 2 Ves. 627; Edmunds v. Bird, 1 V. & B. 
 542; Fox v. Mackreth, 2 Bro. Ch. 420. 
 
 (a) The influence, in such oases, r. Webb, 5 App. D. C. 38; Wise v. 
 
 to invalidate a conveyance, must be Foote, 81 Ky. 10. A gift, as well 
 
 of such a nature as to deprive the as a conveyance, may be set aside in 
 
 grantor of his free agency. Dorsey equity for undue influence, or the 
 
 V. Wolcott, 173 111. 539 ; Francis i\ donor's executors may recover the 
 
 Wilkinson, 147 111. 370; Ewing v. gift, though the donee did not stand 
 
 Bass, 149 Ind. 1; Maynard v. Tyler, in any confidential relation to the 
 
 168 Mass. 107; Orrasby v. Webb, donor. James r. Kerr, 40 Ch. D. 
 
 134 U. S. 47; Trost v. Dingier, 118 449; Morley r. Loughman. [1893] 
 
 Penn. St. 259; McFadin v. Catron, 1 Ch. 736; Re Wormley, 137 Penn. 
 
 120 Mo. 252; Rozell v. Vansyckle, St. 101 ; Be Corson, id. 160 ; Lewis 
 
 II Wash. 79; Parrish v. Parrish v. Merritt, 113 N. Y. 386; Wood- 
 (Oregon), 54 Pac. 352; Olmstead bury v. Woodbury, 141 Mass. 329. 
 
 271
 
 § 190.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 influential relation between the parties/ courts will inter- 
 fere and protect a person of weak mind from his contracts. 
 
 § 190. Mental weakness is not of itself a sufficient ground 
 for avoiding an agreement, but it must appear that some 
 advantage was taken of it to procure a favorable contract ; 
 and if the other party stood in some fiduciary relation to the 
 person of weak mind, the burden is upon him to show that 
 the contract was in every respect fair, and that no advantage 
 was obtained from the influential position on the one hand, 
 or from the feebleness of mind on the other. And it is quite 
 immaterial from whence the mental weakness arises. It 
 may arise from a natural and permanent imbecility of mind, 
 or it may arise from some temporary illness or debility, or 
 from the weakness and infirmity of extreme old age. Each 
 case must depend upon its own circumstances. If there is a 
 fixed and permanent state of idiocy or insanity, or if the 
 party is a declared lunatic and his affairs are in the hands 
 of a committee or of a guardian, there can be little or no 
 doubt. Questions generally arise where there is not this 
 entire want of capacity, — where no general rule can be laid 
 down, but the court is left to judge of the capacity of the 
 contracting party, of the circumstances under which the 
 contract was made, and whether from all the facts in 
 the case the contract ought in equity and good conscience 
 to be sustained. Extreme old age, accompanied by great 
 infirmity; or extreme weakness and feebleness of mind, 
 arising from temporary illness or permanent imbecility, 
 stopping short of absolute incapacity, — are all pertinent 
 facts, tending to show, if accompanied by other circum- 
 stances, a fraudulent contract ; but if upon all the evidence 
 the contract is a fair one, if the enfeebled person is sur- 
 
 1 Kennedy v. Kennedy, 2 Ala. 571 ; Brice v. Brice, 5 Barb. 533; Buf- 
 falow V. Buffalow, 2 Dev. & Bat. Eq. 241 ; Osmond v. Fitzroy, 3 P. Wms. 
 130; Dent v. Bennett, 7 Sim. 539; 4 M. & C. 269 ; Cruise u. Christopher, 
 5 Dana, 181 ; Whipple v. Clure, 2 Root, 216 ; Brooke v. Berry, 2 Gill, 83; 
 McCraw u. Davis, 2 Ired. Eq. 618; Huguenin v. Baseley, 14 Ves. 273; 
 Griffith V. Robins, 3 Madd. 191 ; Whelan v. VVhelan, 3 Cow. 537. 
 
 272
 
 CHAP. VI.] DRUNKENNESS. [§ 191. 
 
 rounded by his friends, who understand the transaction and 
 explain it to the party, it will not he set aside.' 
 
 § 191. Substantially the same rules apply to deeds and 
 instruments executed by a drunken person. Drunkards, 
 while laboring under the frenzy of drink, are non compotes 
 mentis by their own act,''' and it is said that they may plead 
 non est factum to a deed executed while so drunk that they 
 do not know what they are doing. ^ In such case there can 
 of course be no intelligent consent to any contract. But 
 equity will not always interfere to protect a drunken man 
 from the folly of his own acts, and will not, on account of 
 drunkenness alone, set aside a contract or convert the other 
 party into a trustee.* And this is more especially the rule 
 where the object of the contract is to carry out a family 
 settlement, or the contract is fair and reasonable in its 
 terms. ^ But if there is any contrivance or management to 
 induce drunkenness and to procure a contract, or if there 
 was any unfair advantage taken of the drunkenness to pro- 
 cure a contract, it would be an actual fraud, and the court 
 
 » Griffith V. Robins, 3 Madd. 191 ; Harding v. Handy, 11 Wheat. 19-3; 
 Dent I'. Bennett, 7 Sim. 539; Att. Gen. v. Pariither, 3 Bro. Cli. ii'S ; 
 Hunter v. Atkins, 3 M. & K. 146 ; Lewis v. Pead, 1 Ves. Jr. 19; Pratt v. 
 Barker, 1 Sim. 1 ; 4 Russ. 507 ; Rippy v. Gant, 4 Ired. Eq. 447 ; Gratz i'. 
 Cohen, 11 How. 1. 
 
 2 Co. Litt. 247 a, 447 a; Beverley's Case, 4 Co. 124; Hendrick v. Hop- 
 kins, Gary, 93. 
 
 8 Cole V. Robins, Bull. N. P. 172; Cook v. Clayworth, 18 Ves. 12; 
 Reynolds v. Waller, 1 Wash. 212 ; Rutherford v. Ruff, 4 Des. 350 ; Gore 
 V. Gibson, 13 M. & W. 623; Barrett v. Buxton, 2 Ark. 167; Peyton v. 
 Rawlins, 1 Hayw. 77; Clifton v. Davis, 1 Pars. Eq. 31 ; French i-. French, 
 2 Ham. 214; Wigglesworth r. Steers, 1 Hen. & Munf . 70; Shaw c. Thack- 
 ray, 1 Sm. & Gif. 537. 
 
 * Johnson v. Meddlicott, 3 P. Wms. 131 n.; Cory v. Cory, 1 Yes. 19; 
 Nagle V. Bayler, 2 Dr. & W. 60; Cooke v. Clayworth, 18 Ves. 12; Max- 
 well V. Pittinger, 2 Green. Ch. 156; Morrison v. McLeod, 2 Dev. & Bat. 
 Eq. 221; Whitesides v. Greenlee, 2 Dev. Eq. 152; Moore v. Read, 2 Ired. 
 Eq. 580; Hotchkiss i'. Fortson, 7 Yerg. 67 ; Belcher v. Belcher, 19 Yorg. 
 121; Hutchinson v. Brown, 1 Clark, Ch. 408; Harbison v. Lemon, 3 
 Blackf. 51. 
 
 6 Cory V. Cory, 1 Ves. 19 ; Cooke v. Clayworth, IS Ves. 12. 
 VOL. I. — 18 273
 
 § 193.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 will not allow a party to retain any advantage procured in 
 such manner, nor would it lend its aid to carry it into 
 eifect^ 
 
 § 192. So, equity will relieve in all cases of contracts 
 procured by duress, or fear, or apprehension; for if there 
 has been any restraint upon a person's freedom to consent 
 or dissent, or any practice upon his fears, it is a kind of 
 fraud, and no one ought to enjoy an advantage gained in 
 such manner. 2 Thus, if a contract is made with one in 
 prison, or under any circumstances of oppression, equity 
 will scrutinize it with great care.^ And so, if advantage is 
 taken of the extreme distress or necessity of a party, to 
 obtain a favorable bargain from him, equity will give relief;* 
 but the advantage must have been within the contemplation 
 of the parties at the time. 
 
 § 193. Of course, if two or more of these suspicious cir- 
 cumstances are found in the same case ; as, if property is 
 
 1 Johnson v. Meddlicott, 3 P. Wms. 131 ; Say v. Barwick, 1 V. & B. 
 195; Jenness v. Howard, 6 Blackf. 240; Cory v. Cory, 1 Ves. 19; Cooke 
 V. Clayworth, 18 Ves. 12 ; Crane v. Conklin, Saxt. 346 ; Calloway v. 
 Wetherspoon, 5 Ired. Eq. 128; Hutchinson v. TindaU, 2 Green. Ch. 128; 
 Phillips V. Moore, 11 Miss. 600; Cooley v. Rankin, id. 642; Cragg v. 
 Holme, 18 Ves. 14 n. ; Shiers (-•. Higgons, 1 Madd. Ch. Pr. 399 ; Nagle v. 
 Baylor, 2 Dr. & W. 64 ; Shaw v. Thackray, 1 Sm. & Gif. 537. 
 
 2 Att. Gen. v. Sothen, 2 Vern. 497 ; Crowe v. Ballard, 1 Ves. Jr. 220 ; 
 Anon., 3 P. Wms. 29, n. (e) ; Gist v. Frazier, 2 Lit. 118; Evans ■;;. 
 Llewellyn, 1 Cox, 340 ; Hawes v. Wyatt, 3 Bro. Ch. 158. 
 
 3 Att. Gen. v. Sothen, 2 Vern. 497 ; Roy v. Beaufort, 2 Atk. 190; 
 Falkner v. O'Brien, 2 B. & B. 214; Underhill v. Horwood, 10 Ves. 209; 
 Xicholls V. Nicholls, 1 Atk. 409; Griffith i-. Spratley, 1 Cox, 333; Hinton 
 V. Hinton, 2 Ves. 634. 
 
 4 Gould V. Okeden, 3 Bro. P. C. 560; Harvey v. Mount, 8 Beav. 439; 
 Hawes w. Wyatt, 3 Bro. Ch. 156; Bosanquet r. Dashwood, Ca. t. Talb. 
 37; Proof r. Hines, id. Ill; Pickett v. Loggon, 14 Ves. 215; Farmers. 
 Farmer, 1 H. L. Cas. 724; Fitzgerald v. Rainsford, 1 B. & B. 37; Under- 
 hill V. Horwood, 10 Ves. 209; Iluguenin >•. Baseley, 14 Ves. 273; Carpen- 
 ter V. Elliott, 2 Ves. 494 ; Basy v. Magrath, 2 Sch. & Lef. 31 ; Rarasbot- 
 tom V. Parker, 6 Madd. 6; Wood v. Abrey, 3 Madd. 417; Crowe r. 
 Ballard, 1 Ves. Jr. 215; Nottige v. Prince, 6 Jur. (n. s.) 1066; Davis v. 
 
 274
 
 CHAP. VI.] DURESS. [§ 194. 
 
 obtained from a person of weak mind, or under duress, or in 
 great distress, for a grossly inadequate consideration, or 
 upon any unusual, extraordinary, or oppressive terms, the 
 evidence would Vjc much stronger of some fraudulent prac- 
 tice, and would call upon the suspected party for a very 
 complete vindication of the transaction, or he would be con- 
 verted into a trustee.' 
 
 § 194. Lord Hardwicke's "third species of fraud may be 
 presumed from the circumstances and condition of the 
 parties contracting; and this goes further than the rule of 
 law, which is, that fraud must be proved, not presumed. "^ 
 At law, fraud must be proved ; but in equity there are cer- 
 tain rules prohibiting parties bearing certain relations to 
 each other from contracting between themselves ; and if 
 parties bearing such relations enter into contracts with each 
 other, courts of equity presume them to be fraudulent, and 
 convert the fraudulent party into a trustee. And herein 
 courts of equity go further than courts of law, and presume 
 fraud in cases where a court of law would require it to be 
 proved; that is, if parties within the prohibited relations or 
 conditions contract between themselves, courts of equity will 
 avoid the contract altogether, without proof, or they will 
 throw upon the party standing in this position of trust, 
 confidence, and influence, the burden of proving the entire 
 fairness of the transaction. Thus, if a parent buys property 
 of his child, a guardian of his ward, a trustee of his cestui 
 que trust, an attorney of his client, or an agent of his prin- 
 cipal, equity will either avoid the contract altogether, with- 
 out proof, or it will throw the burden of proving the fairness 
 of the transaction upon the purchaser; and, if the proof 
 fails, the contract will be avoided, or the purchaser will be 
 construed to be a trustee at the election of the other party. 
 The ground of this rule is, that the danger of allowing 
 
 ^IcNally, 5 Sneed, 583; Graham r. Little, 3 Jones, Eq. 152; Stewart w. 
 Hubbard, id. 186. 
 
 J Griffin v. De Veulle, Wood. Lect. App. 16. 
 
 2 Chesterfield c. Janssen, 2 Ves. 155. 
 
 275
 
 § 195.] CONSTRUCTIVE TRUSTS. [CHAP. TI. 
 
 persons holding such relations of trust and influence with 
 others to deal with them is so great that the presumption 
 ought to be against the transaction, and the person holding 
 the trust or influence ought to be required to vindicate it 
 from all fraud, or to continue to hold the property in trust 
 for the benefit of the ward, cestui que trust, or other person 
 holding a similar relation.^ 
 
 § 195. These principles are applied in their full vigor to 
 all contracts and sales between trustee and cestui que trust.^ 
 The trustee is in such a position of confidence and influence 
 over the cestui que trust, that the contract or bargain will 
 either be void or he will be a constructive trustee, at the 
 election of the cestui que trust, unless the trustee can show 
 that the contract was entirely fair and advantageous to the 
 cestui que trust.^ The presumption is against the transaction. 
 
 1 Hoghton V. Hoghton, 15 Beav. 278; Cooke v. Lamotte, id. 234 
 Ahearne v. Hogan, 1 Dr. 310 ; Espey v. Lake, 10 Hare, 260; Prideaux i'. 
 Lonsdale, 1 De G., J. & S. 433; Bayley v. Williams, 11 Jur. (n. s.) 236 
 Clark V. Malpas, 31 Beav. 80 ; Grosvenor v. Sherratt, 28 Beav. 659 ; Bean 
 land V. Bradley, 2 Sm. & Gif. 339; Taylor v. Taylor, 8 How. 183 
 Greenfield's Est., 14 Penn. St. 504 ; Graham v. Pancoast, 30 id. 89 ; Nace 
 V. Boyer, id. 99 ; Wester's App., 54 id. 60 ; Sears v. Shafer, 2 Seld. 268 ; 
 Buffalow V. Buffalow, 2 Dev. & Bat. 241 ; Prewett v. Coopwood, 30 Miss. 
 369 ; Graham v. Little, 3 Jones, Eq. 152 ; Powell v. Cobb, id. 456; Gass 
 V. Mason. 4 Sneed, 497 ; Lovatt v. Knipe, 12 Ir. Eq. 124 ; Ames v. Port 
 Huron, 11 Mich. 139; European R. R. Co. v. Poor, 59 Maine, 277. 
 
 2 Hatch V. Hatch, 9 Ves. 296 ; Hylton v. Hylton, 2 Ves. 549 ; Hunter 
 V. Atkins, 3 M. & K. 135 ; Bulkley v. Wilford, 2 CI. & Fin. 102; Farnam 
 V. Brooks, 9 Pick. 212 ; Boynton v. Brastow, 53 Me. 362 ; Staats v. Ber- 
 gen, 17 N. J. Eq. 554; Coffee v. Ruffin, 4 Cold. 487; Faucett v. Faucett, 
 4 Bush. 521 ; Korns v. Shaffer, 27 Md. 83; Baltimore v. Caldwell, 25 
 Md. 423 ; Smith v. Townshend, 27 Md. 368 ; Colborn v. Morton, 
 3 Keyes, 266; Pairo v. Vickery, 37 Md. 467 ; Wright v. Campbell, 27 
 Ark. 637. 
 
 8 Crosskill v. Bower, 32 Beav. 86 ; Pooley v. Quilter, 2 De G. & J. 327; 
 Spring V. Pride, 10 Jur. (n. s.) 046; Ex parte Ridgeway, 1 Jur. (x. s.) 
 97 ; Heme v. ]Meeres, 1 Vern. 465 ; Ayliffe v. ^lurray, 2 Atk. 59 ; Fox v. 
 Mackreth, 2 Bro. Ch. 400 ; Coles v. Trecothick, 9 Ves. 246 ; Ex parte 
 Lacey, 6 Ves. 625 ; Morse v. Royal, 2 Ves. 376 ; Whichcote v. Lawrence, 3 
 Ves. 740 ; Gibson v. Jeyes, 6 Ves. 277; Hunter v. Atkins, 3 M. & K. 135; 
 276
 
 CHAP. VI.] CONTRACTS WITH CESTUI QUE TRUST. [§ 195. 
 
 li" a cestui confess judgment or make a deed to the trustee, 
 the burden is on the latter to repel the intendment of law 
 that there was undue iulluence. ' If a trustee conveys trust 
 property to himsulf, any one or more of the cestuis may 
 avoid the decd.^ In the case just cited the trustees conveyed 
 the trust property to themselves through a third person, 
 without actual intent to defraud, but for a consideration 
 really inadequate. Considerable time had elapsed, there 
 were future interests in the property represented only by the 
 trustee, and persons other than the trustees had acquired 
 rights in the land for value; wherefore on the whole the 
 court allowed the property to be retained on payment of the 
 difference between the actual consideration and its fair value 
 with interest at annual rests. The general rule is, that the 
 trustee shall not take beneficially l)y gift or purchase from 
 the cestui que trust,^ even although the supposed trustee and 
 purchaser is a mere intermeddler and not a regularly recog- 
 nized trustee;* the question is not whether or not there is 
 
 Scott V. Davis, 4 M. & Cr. 87 ; Kerr v. Dungannon, 1 Dr. & W. 509; Van 
 Epps V. Van Epps, 9 Paige, 237 ; Ilawley v. Cramer, 4 Cow. 717 ; Camp- 
 bell V. Walker, 5 Ves. G78 ; ISIichoud v. Girod, 4 How. 503 ; De Caters v. 
 Chaiimont, 3 Paige, 178; Child v. Bruce, 4 Paige, 309 ; Campbell v. John- 
 ston, 1 Saiidf. Ch. 148 ; Cram i'. Mitchell, id. '251 ; Davis v. Simpson, 5 
 Har. & J. 147 ; Boyd v. Hawkins, 2 Ired. Ch. 304 ; Matthews v. Dragand, 
 3 Des. 25; Thorp v. McCullum, 1 Gilm. 614; Davoue v. Fanning, 2 
 Johns. Ch. 252; De Bevoise v. Sandford, 1 Hoff. 192 ; Stuart v. Kissam, 
 2 Barb. 493 ; Richardson v. Jones, 3 G. & J. 1G3; Clark r. Lee, 14 Iowa, 
 425; Zimmerman t: Harmon, 4 Rich. Eq. 165; Johnson c. Blackman, 11 
 Conn. 343; Moody r. Vandyke, 4 Binn. 81; Armstrong r. Campbell, 3 
 Yerg. 201 ; Bruch r. Lantz, 2 Rawle, 392 ; Ilerr's Est., 1 Grant's Cas. 
 172; Painter v. Henderson, 7 Barr, 48; Brackenridge v. Holland, 2 
 Blackf 377 ; Scroggins r. McDougald, 8 Ala. 382 ; Thompson r. Wheat- 
 ley. 5 S. & M. 499; Shelton v. Homer, 5 Met. 462; Freeman r. Ilarwood, 
 49 Maine, 195; Hickman u. Stewart, 69 Tex. 255; Patterson's Appl., 118 
 Penn. St. 571. 
 
 1 Yonge r. Hooper, 73 Ala. 119. 
 
 2 Morse r. Hill, 136 Mass. 60. 
 
 « Coles r. Trecothick, 9 Ves. 234 ; Renew v. Butler, 30 Ga. 954 ; Cad- 
 wallader's App., 64 Penn. St. 293; Wright c. Smith, 23 N. J. Eq. 106; 
 Smith r. Drake, id. 302. 
 .^ * Wright V. Smith, 23 X. J. Eq, 106. 
 
 277
 
 § 195.] CONSTRUCTIVE TKUSTS. [CHAP. VI. 
 
 fraud in fact, the law stamps the purchase by the trustee as 
 fraudulent /)er se/ to remove all temptation to collusion and 
 prevent the necessity of intricate inquiries in which evil 
 would often escape detection, and the cost of which would 
 be gi'cat. The law looks only to the facts of the relation 
 and the purchase. The trustee must not deal with the 
 property for his own benefit. ^ So where the trustee in sell- 
 ing the property to a third person stipulates that the vendee 
 is to sell it afterwards to the trustee, and the agreement is 
 carried out, the trustee holds still as trustee, and not by an 
 independent title as other purchasers from such vendee 
 might have. 3 No trustee can directly or indirectly become a 
 purchaser in his own behalf of the trust property, and hold 
 it against the cestui.* (a) A purchase by a trustee inures to 
 the benefit of the cestui.^ It is not, however, void but only 
 voidable at the election of the cestui que trust.^ (b) But 
 
 1 McGaughey v. Brown, 46 Ai-k. 25. 
 
 2 King v. Remington, 36 Minn. 25; Baldwin v. Allison, 4 ^linn. 11; 
 Jewett i: Miller, 10 N. Y. 402. 
 
 3 De Cells v. Porter, 59 Cal. 464. 
 
 4 Marshall v. Carson, 38 N. J. Eq. 250; Creveling v. Fritts, 34 id. 134 ; 
 People V. O. B. of S. B. B. Co., 92 N. Y. 98. 
 
 5 People V. Merchants' B'k, 35 Hun, 97. 
 
 6 Dodge V. Stevens, 94 N. Y. 209; Gibson v. Barbour, 100 N. C. 192. 
 
 (a) The only method by which does not render the purchase void 
 a trustee can protect his purchase ab initio, but voidable only at the 
 is, when he sees the absohite neces- instance of the cealui qui' trust: and 
 sity of a sale of the estate, and he even while the title is in the trustee, 
 is ready to give more than any one it may be confirmed by acquiescence 
 else, to apply by motion, to the and lapse of time, as well as by the 
 court of equity in which the bill for express act of the cestui que trust. 
 a sale is filed, to permit him to be Kahn v. Chapin, 152 N. Y. 305, 
 the purchaser. Boswell /' Coaks, 23 309; Harrington i\ Erie S. Bank, 
 Ch. D. 302, 310; Markle's Estate, 101 N. Y. 2-57; Hammond v. Hop- 
 182 Penn. St. 378. kins. 143 U. S. 224; Hoytr. Latham, 
 
 (b) This applies to a purchase id. 553; Morse v. Hill, 136 Mass. 
 at public auction. 2 Story Eq. Jur. 60 ; Barber v. Bowen, 47 Minn. 118; 
 §.322; Broder v. Conklin' 121 Cal. Hopper v. Hopper, 79 Md. 400; 
 282, 286; Hamilton v. Dooly, 15 Harrison v. Manson, 95 Va. .593; 
 Utah, 280. The rule that a trustee Quirk v. Liebert, 12 App. D. C. 
 cannot purchase or deal with the 394 ; Cole v. Stokes, 113 N. C. 
 trust property in his own behalf 270; Darlings. Potts, llSlNIo. 506; 
 
 278 Thompson v. Hartline, 105 Ala. 2G3.
 
 CHAP. VI.] CONTRACTS WITH CESTUI QUE TRUST. [§ 195. 
 
 there arc exceptions to the rule, and a trustee may buy from 
 the cestui que trust, provided there is a distinct and clear 
 contract, ascertained alter a jealous and scrupulous exami- 
 nation of all the circumstances; that the cestui que trust 
 intended the trustee to buy, and there is fair consideration 
 and no fraud, no concealment, no advantage taken by the 
 trustee of information acipiired by him m the character of 
 trustee.' The trustee must clear the transaction of every 
 shadow of susiiicion,^ and if he is an attorney he must show 
 that he gave his client, who sold to him, full information 
 and disinterested advice.^ Lord Eldon said he admitted that 
 the exception was a difficult case to make out.^ xVnd it may 
 be said generally that it is difficult to find a case where such 
 a transaction has been sustained.^ Any withholding of 
 information,^ or ignorance of the facts or of his rights on 
 the part of the cestui,'' or any inadequacy of price, ^ will 
 
 1 Wright V. Smith, 23 X. J. Eq. lOG; Bryan r. Duncan, 11 Ga. 67; 
 Dobson c. Kacey, 3 Sandf. 61 ; Paillon v. ^lartin, 1 id. 560 ; Bracken- 
 ridge >•. Holland, 2 Blackf. 377 ; Stuart c. Kissam, 2 Barb. 494 ; Branian 
 V. Oliver, 2 Stewart, 47; Julian i\ Reynolds, 8 Ala. 680 ; Stallings v. 
 Foreman, 2 Hill, Ch. 401; Pratt c. Thornton, 28 Maine, 355; ^McCartney 
 V. Calhoun, 17 Ala. 301; Marshall v. Stevens, 8 Humph. 159; Beeson v. 
 Beesou.O Barr, 279; McKinley v. Irvine, 14 Ala. 681; Farnam v. Brooks, 
 9 Pick. 212 ; Lyon v. Lyon, 8 Ired. Eq. 201 ; Harrington v. Brown, 5 Pick. 
 519; Jennison v. Ilapgood, 7 Pick. 1 ; Dunlap v. Mitchell, 10 Ohio, 117; 
 Scott V. Freeland, 7 Sm. & M. 410; Pennock's App., 4 Penn. St. 446; 
 Brucli r. Lantz, 2 Rawle, 392 ; Field v. Arrowsmith, 3 Humph. 442 ; 
 Monro v. Allaire, 2 Gaines' Gas. 163 ; Salmon v. Cutts, 4 De G. & Sm. 
 131 ; Harrison v. Guest, 6 De G.,M. & G. 431 ; Herbert v. Smith, 6 Lans. 
 493 ; Birdwell v. Cain, 1 Cold. 301 ; Rice /•. Cleghorn, 21 Ind. SO; John- 
 son V. Bennett, 39 Barb. 37; Buel c. Buckingham, 16 Iowa, 284 ; Brown 
 i\ Cowell, 116 Mass. 465; pout, §428; Graves v. Waterman, 63 X. Y. 
 657; Golson r. Dunlap, 73 Cal. 157 ; Miggett's App., 109 Penn. St. 520. 
 
 2 Lathrop v. Pollard, 6 Col. 424; Jones v. Lloyd, 117 111. 597 ; Porter 
 t;. AVoodruff, 36 N. J. Eq. 174 ; Everett v. Henry, 67 Tex. 402. 
 
 8 Dunn V. Dunn, 42 X. J. Eq. 431. 
 * Coles r. Trecothick, 9 Ves. 246. 
 6 2 Sugd. V. & P. (8 Am. ed.) 687. 
 
 « Fox V. Mackreth, 2 Bro. Ch. 400 ; Scott i-. Davis, 4 M. & Cr. 87; 
 Heme v. Meeres, 1 Vern. 465 ; Cook v. Sherman, 4 McCrary, 20. 
 ' Leach v. Leach, 65 Wis. 284. 
 
 8 Pugh V. Bell, 1 J. J. Marsh. 398; Morse v. Royal, 12 Ves. 373. 
 
 279
 
 § 195.] CONSTEUCTIVE TRUSTS. [CHAP. VI. 
 
 make such purchaser a constructive trustee. The cestui que 
 trust must know that he is dealing with the trustee. There- 
 fore, if the trustee purchases through an agent or third 
 person, and the cestui que trust does not know the trustee in 
 the transaction, the contract will be void, or a trust in the 
 agent.* The rule is that the trustee shall not purchase 
 directly or indirectly ; therefore if the trustee conveys to a 
 stranger, and the stranger conveys back to the trustee, the 
 transaction is equally void.^ So, if the trustee purchases at 
 auction of the cestui que trust, the presumption is strongly 
 against the transaction,^ and the purchase is generally void.* 
 And one of several trustees is under the same disabilities:^ 
 they cannot convey to each other. ^ And so, if the purchase 
 is made by an agent or attorney of the trustee.''' Nor can 
 the trustee's wife purchase.^ Nor can the trustee purchase 
 as agent for another.^ The cestui que trust is not estopped 
 to avoid such sales, although he has taken a legacy under 
 the will of the trustee, if such legacy is not a charge upon 
 the trust estate and is not otherwise connected with the trust 
 fund.** If such sales are avoided, upon a reconveyance 
 the trustee is entitled to receive back all the purchase- 
 money and all other claims which he may have against the 
 
 1 Randall v. Errington, 10 Ves. 423. 
 
 '^ Dobson V. Racey, 3 Sandf. 61. 
 
 8 Att. Gen. v. Dudley, Coop. 146 ; Whelpdale v. Cookson, 1 Ves. 9 ; 
 Lister ik Lister, 6 Ves. 631 ; Sanderson i;. Walker, 13 Ves. 601 ; Downes 
 V. Grazebrook, 3 Mer. 200; Campbell v. Walker, 3 Ves. 378; Wbitcomb 
 V. Miiiichiii, 5 Madd. 91. 
 
 4 Roberts v. Roberts, 65 N. C. 27. 
 
 ^ Whichcote v. Lawrence, 3 Ves. 740. 
 
 * Boynton v. Brastow, 53 ISIaine, 362. 
 
 ' Campbell v. Walker, 5 Ves. 378 ; Cox v. John, 32 Ohio St. 532. 
 
 8 Dundas's App., 64 Penn. St. 325 ; Leitch w. Wells, 48 Barb. 6-37. But 
 it has been held that the trustee's wife mi^^ht purchase -where the trust 
 property was sold under a judicial decree of sale, in the absence of fraud 
 and collusion, if the sale is affirmed by a decree of the court upon a re- 
 port of the proceedings. Armstrong's App., 69 Penn. St. 409. 
 
 5 North Baltimore, &c. Ass'u v. Caldwell, 25 Md. 420 ; James v. James, 
 55 Ala. 525, 
 
 10 Smith V. Townshend, 27 Md. 368. 
 280
 
 CHAP. VI.] CONTRACTS WITH CESTUI QUE TRUST. [§ 195. 
 
 estate.' (a) And he may purchase of the cestui que trust property 
 nut embraced in the trust fund, care being taken that the influ- 
 ence of the rehition dues nut affect the transacti(jn/'' Scjuie- 
 timcs the trustee is allowed, by decrees of sale, to be a 
 bidder fur the jiroperty at his own auctiun; in such case the 
 trustee must show the utmust diligence and guud faith for 
 the interest of the cestui que trust. ^ Where a trustee has an 
 interest to protect by bidding at a sale of trust property, he 
 may ask the court for jjcrnjission to bid, and when this is 
 granted after hearing all parties interested, he can bid, and 
 obtain a perfect title.* And a trustee may buy at a sale 
 procured by some one else, not controlled by himself, in good 
 faith to protect the interests of himself and others.^ (b) A 
 trustee who has bona fide sold the property to a third person 
 may afterwards buy it for himself,^ and the prohibition does 
 not ap{)ly where the sale of the property is by a judgment 
 creditor of the cestui through the sheriff, and not the trustee's 
 sale.'' Acquiescence, lapse of time, or express act of the 
 cestui may make the trustee's title good.^ Matters of indebt- 
 edness growing out of relations of trust and confidence are 
 subject to adjustment and settlement the same as claims 
 arising in other transactions.^ 
 
 1 Elliott V. Pool, 6 Jones, Eq. 42. 2 j^idredge v. Smith, 34 Yt. 4S4. 
 
 8 Cadwallader's App., 64 Penu. St. 203; Colgate v. Colgate, 23 N. J. 
 Eq. 372. 
 
 * Scholle V. Scholle, 101 N. Y. 107. 
 
 6 Liisk's App., lUS Penn. St. 152; Allen v. Gillette, 127 U. S. 589. 
 
 8 Welch V. McGrath, 59 Iowa, 519. 
 
 ' Clark V. Holland, 72 Iowa, 36. 
 
 8 Harrington v. Erie County Savings Bank, 101 X. Y. 257. 
 
 ' Clute v. Frasier, 58 Iowa, 273. 
 
 (a) So the assignee of a contract tliough he did not ask or receive the 
 
 to purchase real estate, who receives latter's approval thereof. Stewart 
 
 it in trust for the assignor, has an r. Fellows, 128 111. 480. 
 equitable lien on the land, when he (h) An executor is not precluded 
 
 receives the title, for so much of from purchasing at the sale of au 
 
 moneys paid as he necessarily ad- heir's interest in real estate, that not 
 
 vanced to prevent a forfeiture under being within his control as trustee, 
 
 the contract to purchase, and pre- Ilaigh v. Pearson, 11 Utah, 51. 
 serve the interest of his assignor, 
 
 281
 
 § 196.] CONSTKUCTIVE TRUSTS. [CHAP. YI. 
 
 § 196. If among the assets of the trust estate there are 
 leases, the trustee cannot renew them in his own name; and 
 if he renews them in his own name, he must hold them by a 
 constructive trust for the same persons beneficially interested 
 in the old leases.^ Even if the lessor refuse to renew the 
 lease for the benefit of the cestui que trust, and the trustee 
 takes it in his own name, he is still a constructive trustee, 
 and he must account for all the income and profits, (a) This 
 is on the ground that a trustee should be under no tempta- 
 tions to make any contracts in relation to the trust property, 
 even collaterally, on his own private account. ^ The same 
 rule extends to all persons who have only a partial interest 
 in property : they shall not take advantage of their situation 
 to renew leases in their own names; as, tenants for life,^ 
 mortgagees,* devisees subject to debts, legacies, or annui- 
 
 1 Keech v. Sandford, commonly called the Rumford Market Case, Sel. 
 Ch. Cas. 61 ; 1 Lead. Cas. Eq. 36, Eng. & Am. notes ; GrifRn v. GilfBn, 
 1 Sch. & Lef. 354; Pickering u. Vowles, 1 Bro. Ch. 198; Pierson y. Shore, 
 1 Atk.480; Xesbitt v. Tredennick, 1 B. & B. 46; Turner v. Hill, 11 Sim. 
 14 ; Whalley v. Whalley, 1 Vern. 484 ; Holt v. Holt, 1 Ch. Cas. 190 ; 
 Anon., 2 id. 207; Abney v. Miller, 2 Atk. 597; Killick v. Flexney, 4 Bro. 
 Ch. 161; Luckin v. Rushworth, Finch, 392; Mulvaney ?;. Dillon, 1 B. & 
 B. 409 ; Fosbrook v. Balguy, 1 M. & K. 226 ; Owen v. Williams, Amb. 
 794; Fitzgibbon v. Scanlan, 1 Dow, 261; Bradford v. Brownjohn, L. R. 
 3 Ch. 714. 
 
 ^ Keech v. Sandford, Sel. Ch. Cas. 61 ; Griffin v. Griffin, 1 Sch. & Lef. 
 353. 
 
 3 Eyre v. Dolphin, 2 B. & B. 290 ; Rawe v. Chichester, Amb. 719 ; 
 Coffin V. Fernyhough, 2 Bro. Ch. 291; Taster v. Marriott, Amb. 668; 
 James v. Dean, 11 Ves. 383 ; 15 Ves. 236 ; Kemptou v. Packman, 7 Ves, 
 176 ; Giddings v. Giddings, 3 Russ. 241 ; Crop v. Xorton, 9 Mod. 233 ; 
 Buckley v. Lanauze, Llo. & Goo. t. Plunk. 327 ; Tanner v. Elworthy, 4 
 Beav. 487; Waters v. Bailey, 2 Y. & C. Ch. 218; Yem v. Edwards, 3 K. 
 & J. 564 ; 1 De G. & J. 598 ; Brookman v. Hales, 2 Y. & B. 45. 
 
 ^ Rushworth's Case, Freem. 13 ; Nesbitt v. Tredennick, 1 B. & B. 46. 
 
 (a) The trust which the court in which the renewal has been ob- 
 
 fastens upon the new lease is not tained by virtue of the original 
 
 confined to the renewal by a person lease. In re Lulham, 53 L. J. Ch. 
 
 who was at the time in a fiduciary N. s. 928, 931. 
 position, but extends to other cases 
 
 232
 
 CHAP. VI.] RENEWAL OF LEASES BY TRUSTEES. [§ 197. 
 
 ties,* joint tenants,^ or ijartut'rs;^ and where there was a 
 mere teiuiucy at will, it was held that the tenant eould not 
 renew in his own name, and dejjrive the remainder-man of 
 what might come to him.* And il, instead oi renewing, the 
 trustee or other person sell the right to renew for money, he 
 must account for the price to the persons benelicially inter- 
 ested.^ Nor can an agent acting for the trustee renew in his 
 own namc.^ The same rule applies when the trustee of an 
 equity of redemption becomes the purchaser in a foreclosure 
 suit,^ and to the purchase by a trustee of any property, not a 
 part of the trust fund, which has the necessary effect to 
 diminish the trust fund.*^ 
 
 § 197. It is thus seen that the rule against purchasing by 
 trustees, of the cestui que trust, amounts almost to prohibi- 
 tion; for if a trustee purchases the property, and sells it at a 
 profit, he must account for it as a trustee ; not because there 
 was any fraud in the transaction, but because it is against 
 the policy of the law to allow such transactions. ^ Nor is it 
 
 1 Jackson r. Welch, Llo. & Goo. t. Plunk. 34G ; Winslow v. Tighe, 2 
 B. & B. 195 ; Stubbs v. Roth, id. 548 ; Webb v. Lugar, 2 Y. & C. 247 ; 
 Jones r. Kearney, 1 Conn. & Laws, 34. 
 
 2 Palmer *-. Young, 1 Vein. 276. 
 
 ' Felheistonhaugh v. Fenwick, 17 Ves. 298 ; Ex parte Grace, 1 Bos. 
 & P. 376; Clegg c. Fish wick, 1 Macn. & G. 294, 299, Am. ed. Perkins, 
 note 1 ; Clegg v. Edmondson, 8 De G., M. & G. 787. 
 
 4 James v. Dean, 11 A'es. 383; 15 Ves. 236 ; Re Tottenham, 16 lied. 
 Ch. 118. 
 
 6 Owen r. AVilliams, Amb. 734. 
 
 ^ Edwards i'. Lewis, 3 Atk. 538. 
 
 ■f Huhbell V. ^Medbury, 53 N. Y. 98; Terrett v. Crombie, 6 Lans. 83. 
 
 8 Fulton i: Whitney, 67 N. Y. 548. 
 
 9 Ilawley v. Cramer, 4 Cow. 117; Prevost v. Gratz, 1 Pet. 66, 367 ; 6 
 Wheat. 481 ; Edwards v. :Meyrick, 2 Hare, 60 ; Hamilton r. Wright, 9 
 CI. & Fin. Ill; Fox v. Mackreth, 2 Bro. Ch. 400; 1 Cox, 310 ; John v. 
 Bennett, 39 Barb. 237; Kent r. Chalfant, 7 ISIinn. 487 ; Tiffany v. Clark, 
 1 X. Y. Sup. Ct. Add. 9 ; Handlin c. Davis, 81 Ky. 34. An administrator 
 who has bid in, in his own name, at a foreclosure of a mortgage belonging 
 to his intestate, under the act authorizing him to do so, holds in trust, and 
 cannot sell without the authority of the court. RaflVrty r. Mallory, 3 Biss. 
 362. But see Frouberger v. Lewis, 79 >■'. C. 426, where an exception to 
 
 283
 
 § 197.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 material that there should be an advantage, or profit, arising 
 out of a purchase by the trustee from the cestui que trust. It 
 is not necessary to prove such advantage or profit: it is 
 enough to show the relation and the purchase. The trustee 
 can make no profit from his management of the estate, and 
 he is bound not to put himself in any position where his 
 private interests may confiict with the interests of the 
 cestui que trusts If a trustee purchases the trust property, 
 the cestui que trust may have the purchase set aside and the 
 property resold.^ (a) The general rule is that only lapse of 
 time or ratification can make the purchase good, and the 
 burden of proof is on the trustee to show laches or acquies- 
 
 the rule is said to be in case the trustee has a personal interest in the 
 property, when he may bid at the sale to protect that interest ; but then 
 he ought to obtain the sanction of the court. 
 
 1 Ex parte Lacey, 6 Yes. 625; Chesterfield v. Janssen, 2 Ves. 138 ; 
 Campbell v. Walker, 5 Ves. 678; 13 Ves. 138 ; Cane v. Allen, 2 Dow, 289 ; 
 Slade V. Van Vechten, 11 Paige, 21 ; Davoue v. Fanning, 2 Johns. Ch. 252; 
 Michoud V. Girod, 4 How. 503; Dobson v. Racey, 3 Sandf. 61 ; Morse v. 
 Royal, 12 Ves. 355 ; Ex parte James, 8 Ves. 337; Ex parte Bennett, 10 
 Ves. 381 ; Saagar v. Wilson, 4 S. & W. 102. Such transactions are fraudu- 
 lent /ler se. Nelson v. Hoyvner, 66 111. 487. The attorney of the trustee 
 comes equally within the prohibition, and it makes no difference in the 
 application of the rule that a third person has conducted the business and 
 shares in the profits. Cox v. John, 32 Ohio St. 532. 
 
 2 Sypher t'. McHenry, 18 Iowa, 232. After the trust is ended and the 
 trustee has made a sale under his power, the trustee, acting in good faith, 
 may deal with the property and become the owner of what was trust prop- 
 erty by purchase or otherwise. Bush v. Shearman, 80 111. 160. But the 
 court will carefully see that good faith is observed; and a settlement of 
 guardian's account and conveyance of minor's property on the day he 
 becomes of age, and while he is unadvised of his rights, under the influ- 
 ence and control of others, is not binding, and can only be upheld by clear 
 proof that it is just and equitable. Berkmeyer v. Kellerman, 32 Ohio St. 
 239. See Sugd. V. & P. (8th Am. ed.) 685 et seq., where the rules are 
 clearly stated by Lord St. Leonards, and the American cases are all col- 
 lected and arranged by Hon. J. C. Perkins. 
 
 (a) The trustee cannot retain the purchaser would resell to 
 
 the benefit of a purchase, by which the trustee. Ee Postlethwaite, 59 
 
 a friend bought at his sale on a L. T. 68. 
 mere friendly understanding that 
 
 284
 
 CHAP. VI.] RENEWAL OF LEASES BY TRUSTEES. [§ 199. 
 
 cencc' But if he has made a fair sale to a tliird party, it 
 has been held that the trustee could repurcliase from his 
 trustee, though the transaction will be jealously scrutinized 
 in equity. 2 
 
 § 198. The cestui que trust alone can avoid such convey- 
 ances.^ They are at his option. And if they are found to 
 be beneficial to him or otherwise, he may compel the trustee 
 to complete a purchase and take the estate and pay the 
 purchase-money. ^ 
 
 § 199. The above rule docs not apply to mere naked or 
 dry trustees who practically have no interest in or power 
 over the estate, as trustees to preserve contingent re- 
 mainders." Where the trustee has no duty to perform, as 
 where one is trustee in fee for another in fee, having no 
 authority over the estate, and standing in no relation of 
 influence over the cestui que trust, the person named as 
 trustee may purchase;^ and if the cestui que trust make all 
 the arrangements for the sale, such as plans, notices, choice 
 of auctioneer, terms and conditions, and the trustee is in no 
 situation to obtain any exclusive information, the court will 
 deal with the contract as with contracts between other 
 parties." A mortgagee may purchase of the mortgagor under 
 a decree of foreclosure or otherwise,^ but if the mortgage 
 contains a power of sale, the mortgagee becomes a trustee of 
 
 1 Pearce v. Gamble, 72 Ala. 341. 
 
 2 Foxworth V. White, 72 Ala. 224. 
 ' Rice V. Cleghorn, 21 Ind. 80. 
 
 * Thorp V. McCullum, 1 Gilm. 624 ; McClure v. Miller, 1 Bail. Ch. 107; 
 Lister r. Lister, G Ves. 031 ; Ex parte Reynolds, 5 Ve.s. 707 ; Sanderson r. 
 Walker, 13 Ves. 003; Larco v. Casaneuava, 30 Cal. 560. 
 
 6 Parker i'. White, 11 Ves. 226 ; Naylor v. Winch, 1 S. & S. 567; Sut- 
 ton r. Jones, 15 Ves. 587; Pooley v. Quilter, 4 Drew. 189, 
 
 « Pooley V. Quilter, 4 Drew, 189. 
 
 ^ Coles IK Trecothick, 9 Ves. 248; Monro v. Allaire, 2 Caines' Cas. 
 183; Salmon v. Cutts, 4 De G. & Sm. 131. 
 
 8 Iddings V. Bruen, 4 Sandf. Ch. 223; Murdoch's Case, 2 Bland, 161; 
 Knight V. Majoribanks, 2 Mac. & G. 10; 2 Hall & T. 308; Rhodes v. 
 Sanderson, 3G Cal. 414. 
 
 285
 
 § 199.] CONSTRUCTIVE TRUSTS. [CHAPc VI. 
 
 the power of sale for the mortgagor, and neither he nor his 
 agents, attorneys, or auctioneers, can purchase for them- 
 selves or others; or, if they do, they become constructive 
 trustees.^ (a) And so the pledgee of stock cannot buy the 
 same even at the broker's board. ^ Where land is devised to 
 
 1 Dobson?.'. Racey, 4 Seld. 216; Waters v. Groom, 11 CI. & Fin. 684; 
 Mapps >: Sharpe, 32 111. 13; Murray v. Vanderbilt, 39 Barb. 140; Black- 
 ley V. Fowler, 31 Cal. 326; Olcott v. Tioga R. R. Co., 27 N. Y. 546; El- 
 liott V. Wood, 53 Barb. 285; Thornton v. Jarvin, 43 Mo. 153; Wall v. 
 Town, 45 111. 493 ; Robinson v. Cudwin, 41 Ala. 693; Allen i'. Chatfield, 
 3 Minn. 435 ; Montague v. Dawes, 14 Allen, 369. See Bailey v. JEtna, 
 Insurance Co., 10 Allen, 280; Fowle t;. JNIerrill, 10 Allen, 350; Smith r. 
 Provin, 4 Allen, 516; Woodlee v. Burch, 43 Mo. 231 ; Dyer v. Shurtleff, 
 112 Mass. 165. See Scott v. Maun, 33 Tex. 721. But a second mort- 
 gagee may purchase under a power of sale contained in a prior mortgage. 
 Parkinson v. Hanbury, 1 Dr. & Sm. 143 ; 2 De G., J. & S. 455; Shaw v. 
 Bunney, 34 L. J. Ch. 257; 11 Jur. (xV. s.) 99; 2 De G., J. & S. 468; 
 Kirkwood v. Thompson, 11 Jur. (n. s.) 385; 2 De G., J. & S. 613. 
 And it is said that the administrator of the mortgagee may purchase. 
 Woodlee v. Burch, 43 Mo. 231. And so a trustee may buy the equity 
 of redemption in property on which he holds a mortgage as trustee. 
 Britton v. Lewis, 8 Rich. Eq. 271 ; Eldridge r. Smith, 5 Shaw, 484. 
 The power of sale is a power coupled with an interest, and is irrevocable. 
 Capron v. Attleborough Bk., 11 Gray, 492. And can be executed after 
 the death of the mortgagor. Varnum v. Meserve, 8 Allen, 158; Harne- 
 hall V. Orndorff, 35 Md. 340. As to form of notice, see Roche v. Farns- 
 worth, 106 Mass. 509, and remarks of Endicott, J., upon this case in 
 Dyer v. Shurtleff, 112 Mass. 165. Equity will aid the defective execution 
 of a power of sale in a mortgage in favor of a bona fide purchaser who 
 has paid his money for the estate. Beatty v Clark, 20 Cal. 11 ; Rowon 
 V. Lamb, 4 Green, 468. The whole matter of power of sale in mortgages, 
 with the authorities, is stated in 1 Sugd. V. & P. 65-68. If a power of 
 sale in a mortgage provides for the payment of the expenses of the sale, 
 counsel fees may be paid. Varnum r. Meserve, 8 Allen. 158. But the 
 mortgagee can receive nothing for his own time and trouble in executing 
 the power. Imboden v. Atkinson. 23 Ark. 622. 
 
 •2 Maryland Ins. Co. v. Dalrymple. 25 ]\Id. 242 ; Baltimore Ins. Co. v. 
 Dalrymple, id. 269; Byron r. Rayner, id. 424. 
 
 (a) In Massachusetts, a mort- 118 Mass. 554. The power of sale 
 
 gage with power of sale usually au- may be fully executed by one to 
 
 thorizes the mortgagee to become a whom the mortgage has been 
 
 purchaser ; in such case, he may, if assigned as collateral security. 
 
 so authorized, make the deed di- Holmes v. Tui'ner's Falls Co., 150 
 
 rectly to himself. Hall u. Bliss. Mass. 536. 
 286
 
 CnAP. VI.] CONTRACTS OF GUARDIAN WITH WARD. [§ 200. 
 
 one charged with the payment of an annuity to anotlier for 
 life, the devisee does not stand in the position of trustee for 
 the annuitant, and he may purchase the annuity at a profit.' 
 So a cestui que trust may devise property to his trustee, and 
 there is no presumption against such gifts.^ A cestui que 
 trust may purchase the trust property or other property of 
 the trustee, and the purchase will be good; at least the 
 trustee cannot set it aside.^ But sales to a cestui que trust 
 involving an investment of the trust fund, or any dealing in 
 relation to it, may be avoided by the cestui que trusts 
 
 § 200. Conveyances from wards to guardians are investi- 
 gated with more severity by courts than contracts between 
 parent and child, for the reason that there is not that family 
 relationship and affection which sustain and uphold family 
 settlements. The relation between guardian and ward is 
 one of great influence over the ward, and is generally 
 founded upon the pecuniary relation between them. While 
 the relation actually subsists, no contracts can be made.^ 
 But if a contract or conveyance is made by the ward to the 
 guardian just after attaining his property, and before a full 
 settlement is made, and while the influence of the guardian 
 is still in full force, courts will examine it in all itc aspects; 
 and the guardian claiming under such a conveyance must 
 satisfy the court that the transaction was fair and proper, 
 and that it did not proceed from miduc influence, or from 
 any fear, hope, or other unworthy motive induced in the 
 mind of the ward by the conduct of the guardian.^ If there 
 
 1 Powell V. Murray, 2 Edw. 636. 
 
 2 Stump V. Gaby, 5 De G., M. & G. 623; Hindson r. Wetherill, id. 301. 
 But see Waters v. Thorn, 22 Beav. 547. 
 
 8 Walker v. Brungard, 13 Sm. & M. 723; Bank r. Macy. 4 Tnd. 302. 
 
 * McCants V. Bee, 1 McCord, Ch. 382; Chester v. Greer, f) Humph. 26; 
 AVade >•. Harper, 3 Yerg. 383. Where a sale of land by tru.stce of a bank 
 is sought to be avoided by the cestui que trust, the improvemont-s cannot be 
 made a charge against the soller. Paine r. Irwin, 16 Hun. 390. 
 
 6 Dawson v. Massey, 1 B. & B. 226; Blackmore r. Shelby. 8 Ilumjih. 
 439; Bostwick v. Atkins, 3 Comst. .53 ; Gallatian r. Cunningham, 8 Cow. 
 361 ; Clarke v. Devereaux, 1 S. C. 172. 
 
 * Richardson v. Linney, 7 B. Mon. 471 ; Andrews v. Jones, 10 Ala. 
 
 287
 
 § 200.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 is the slightest suspicion of any improper motive for a gift, 
 as that a better or more speedy settlement may be obtained, 
 the conveyance will be avoided, and the guardian will con- 
 tinue to hold the property in trust for the ward. Where a 
 guardian improperly procures an infant's land to be sold by 
 decree of a court, the conveyance will be avoided ; but if the 
 land has been conveyed to an innocent purchaser without 
 notice, the title will be allowed to stand. ^ (a) The influence 
 of the guardian over the ward may be so subtle, and the 
 motives of the gift may be of such a nature, as to baffle a 
 court of equity in reaching them. Therefore it has been 
 said that, although the gift from the ward may be a highly 
 moral act, and alike creditable and honorable to him, yet, if 
 the court is not entirely satisfied by clear demonstration 
 that the gift was properly made, it will be set aside. Noth- 
 ing can be allowed to stand that proceeds from the pressure 
 of the relation of guardian and ward fresh upon the mind of 
 the ward. 2 But if the relation has entirely ceased, and a 
 
 400; Eberts v. Eberts, 54 Penn. St. 110; Dawson v. Massey, 1 B. & B, 
 229; Aylward v. Kearney, 2 id. 463; Wright v. Proud, 13 Ves. 136; 
 Wedderbum v. Wedderburn, 4 M. & C. 41 ; Mulhallen v. Marum, 3 Dr. 
 &W. 317; Gary y. Mansfield, 1 Ves. 379; Garvin v. Williams, 44 Mo. 
 465; Amer. Law Reg. vol. 11 (n. s.), 656; Ashton r. Thompson, 32 
 Minn, 25. 
 
 1 Gwinn v. Williams, 30 Md. 376. 
 
 2 Hatch V. Hatch, 9 Ves. 297 ; Hylton v. Hylton, 2 Ves. 548 ; Pierce 
 V. Waring, id., and 1 Ves. 380, and 1 P. Wms. 120, n.; 1 Cox, 125; 
 Wood ?'. Downes, 18 Ves. 126; Johnson v. Johnson, 5 Ala. 90; Williams 
 V. Powell, 1 Ired. Eq. 460 ; Caplinger v. Stokes, Meigs, 175 ; Somes v. 
 Skinner, 16 Mass. 348; AYhitman's App., 28 Penn. St. 348; Hawkin's 
 App., 32 id. 263; Scott v. Freeland, 7 Sm. & M.420; Garvin v. Williams, 
 44 Mo. 465. 
 
 (a) A guardian, nnlike a trustee, 131 111. 182; Poullain v. Poullain, 
 
 hasno title to his ward's property; 76 Ga. 420. The probate court 
 
 suits must be brought in the latter's may authorize or ratify a guardian's 
 
 name; and contracts made by the conveyance of his ward's property, 
 
 guardian bind only himself. Rich- Doty v Hubbard, 55 Vt. 278; 
 
 mond V. Adams Nat. Bank, 152 Hain's Estate, 167 Penn. St. 55; 
 
 U. S. 359 ; Lombard v. Morse, 155 State v. Hamilton County Com'rs, 
 
 Mass. 136 ; Dalton v. Jones, 51 39 Ohio St. 58. 
 Miss. 585; Kingsbury v. Powers, 
 288
 
 CHAP. VI.] COXTKACTS OF PAUENT.S WITH CIIILDKF.X. [§ 201. 
 
 full settlement has been made, and the ward has obtained the 
 full control of his property, and if suHicient time has elapcd 
 to emancipate the mind of the ward from all undue imjjres- 
 sions and influences, it may not only be proper, but highly 
 meritorious and honorable, for a ward to make a fitting gift 
 to a guardian who has faitlifully performed his trust; and a 
 court fully satisfied upon these points would uphold it.' 
 
 § 201. In the same manner courts of equity carefully 
 scrutinize contracts between parents and children by which 
 the property of children is conveyed to parents. The posi- 
 tion and influence of a parent over a child are so controlling, 
 that the transaction should be carefully examined, and sales 
 by a child to a parent must appear to be fair and reasonable. ^ 
 Such contracts are not, however, prima facie void, but there 
 must be some affirmative proof of undue influence or other 
 improper conduct to render the transaction void ; for while 
 the parent holds a powerful influence over the child, the law 
 recognizes it as a rightful and proper influence, and does not 
 presume, in the first instance, that a parent would make use 
 of his authority and parental power to coerce, deceive, or 
 defraud the child. ^ Therefore it is always necessary to 
 prove some improper and undue influence, in order to set 
 aside contracts between parents and children.* (a) As pur- 
 chases by a parent in the name of a child do not create a 
 resulting trust, but are presumed, in the first instance, to 
 be the advances made by the parent to the child, so convey- 
 
 1 Hylton V. Hylton, 2 Ves. .547; Hatch v. Hatch, 9 Ve.s. 54S. 
 
 2 Blunder v. Barker, 1 P. Wms. 639 ; Wallace r. Wallace. 2 Dr. & W. 
 452; Cocking v. Pratt, 1 Ves. 401; Heron v Fleron, 2 Atk. ISl ; Carpen- 
 ter V. Heriot, 1 Eden, 328; Youna; v. Peachey, 2 Atk. 258. 
 
 8 Jenkins v. Pye, 12 Pet. 2-53, 254. 
 
 * Cocking r, Pratt, 1 Ves. 401 ; Hawes v. Wyatt. 3 Bro. Ch. l.')6; 2 Cox, 
 263; Heron v. Heron, 2 Atk. 161; Young v. Peachey, id. 251; Carpenter 
 r. Heriot, 1 Eden, 328. 
 
 (a) If a father abandons the Hoblyn v. Hoblyn, 41 Ch. D. 200. 
 
 benefit which he unfairly obtains by See Bainbrigge v. Browne, 18 Ch. 
 
 a settlement from his child, the rest D. 188; Readdy v. Penderjast, 55 
 
 of the settlement may stand good. L. T. 767. 
 
 VOL. I. — 19 ogg
 
 § 202.] CONSTEUCTIVE TRUSTS. [CHAP. VI. 
 
 ances to the parent by the child may be a proper family 
 arrangement, and for the best interest of the child. ^ If no 
 such considerations can be found in the case, and the con- 
 veyance, after all allowances are made, is found to have been 
 wrongfully obtained from the child, a court of equity will set 
 it aside or convert the parent into a trustee. ^ But the 
 proceedings must be had at once. The child cannot wait 
 until the parent's death or until the rights of other parties 
 have intervened.^ The same rules apply when contracts are 
 made between children and those who have put themselves 
 in loco parentis ;^ and so when family relatives make use of 
 their position and influence to obtain undue and improper 
 advantages, as where two brothers obtained a deed from a 
 sister, it was set aside. ^ 
 
 § 202. The relation of attorney and client is one of 
 especial confidence and influence, and while that relation 
 continues the attorney cannot receive gifts or make pur- 
 
 1 Blackborn v. Edq-eley, 1 P. Wms. 607 ; Cooke v. Burtchaell, 2 Dr. & 
 W. 165 ; Browne v. Carter, 5 Ves. 877 ; Tendrill v. Smith, 2 Atk. 85 ; 
 Cory V. Cory, 1 Ves. 19 ; Kinchant v. Kinchant, 3 Bro. Ch. 374 ; Twed- 
 dell V. Tweddell, T. & R. 14 ; Hartopp v. Hartopp, 21 Beav, 259 ; Hannah 
 V. Hodgson, 30 Beav. 19. 
 
 2 King V. Savery, 1 Sm. & Gif. 271; 5 H. L. Ca. 627; Berdoe v. Daw- 
 son, 11 Jur. (n. s.) 254; Bury ?;. Oppenheim, 26 Beav. 594 ; Baker v. 
 Bradley, 7 De G., M. & G. 597; 35 Eng. L. & Eq. 449; Field v. Evans, 
 15 Sim. 375 ; Slocumb v. Marshall, 2 Wash. C. C. 397; Brice v. Brice, 5 
 Barb. 533; Whelan v. Whelan, 2 Cow. 537; Young v. Peachey, 2 Atk. 
 2.54; Glisson v. Ogden, id. 258; Baker v. Tucker, 2 Eng. L. & Eq. 1 ; 
 Blackborn v. Edgeley, 1 P. Wnis. 607 ; Morris v. Burroughs, 1 Atk. 402 ; 
 Tendrill v. Smith, 2 Atk. 85; Hoghton v. Hoghton, 15 Beav. 278 ; Cooke 
 V. Lamotte, id. 234 ; Wallace v. Wallace, 2 Dr. & W. 452 ; Hunter v. 
 Atkins, 3 IM. & K. 146 ; Archer v. Hudson, 7 Beav. 551 ; Findley v. Pat- 
 terson, 2 B. ]\Ion. 76. 
 
 8 Wright r. Vanderplank, 2 K. & J. 1; 8 De G., M. & G. 133; Brown 
 V. Carter, 5 Ves. 877; Taylor v. Taylor, 8 How. 201; Crispell v. Dubois, 
 4 Barb 393. 
 
 * Archer v. Hudson, 7 Beav. 551; Maitland v. Backhouse, 16 Sim. 68; 
 Maitland v. Irving, 15 id. 437. 
 
 5 Sears v. Shafer, 2 Seld. 268; Hewitt v. Crane, 2 Halst. Ch. 159 j 
 Boney v. Hollingsworth, 23 Ala. 690. 
 290
 
 CHAP. VI.] ATTORNEY AND CLIENT. [§ 202. 
 
 chases from the client.' It has been said in some cases that 
 the attorney is absolutely prohibited from entering into con- 
 tracts with his clients.2 If the rule is not quite so peremp- 
 tory as this, it at least goes to the extent of prohibiting him 
 from contracting with his client for an interest in the sub- 
 ject-matter of the litigation.^ The client is so completely in 
 the hands of the attorney in relation to the subject-matter 
 of litigation, that it would be almost impossible for him to 
 enter into a free and fair contract in regard to it. Besides, 
 it is against the policy of the law that attorneys should 
 obtain interests in litigated claims, and exercise their offices 
 under such influences of gain. In all cases the burden is 
 upon the attorney making a purchase of a client, to vindicate 
 the transaction from all suspicion.'* (a) And if the attorney 
 
 1 Welles l: Middleton, 1 Cox, 125; Wright v. Proud, 13 Ves. 137; 
 Cheslyn v. Dalby, 2 Y. & C. Ch. 194; Hunter >: Atkins, 3 M. & K. 113; 
 Wood r. Downes, 18 Ves. 126; Savery v. King, 35 Eng. L. & Eq. 100; 
 De Montmorency v. Devereaux, 7 CI. & Fin. 188; Jones v. Tripp, Jac. 
 322; Godard v. Carlisle, 9 Price, 169; Edwards v. Meyrick, 2 Hare, 68. 
 
 2 Wright V. Proud, 13 Ves. 138; Holman v. Loynes, 4 De G., M. & G. 
 270; Thompson v. Judge, 3 Dr. 306; 19 Jur. 583; 24 L. J. Ch. 785; 
 Henry l\ Raiman, 25 Penn. St. 354; West v. Raymond, 21 Ind. 305; 
 Atkins r. Delmage, 12 Ir. Eq. 2; Webster v. King, 33 Cal. 14S; Frank's 
 App., 59 Penn. St. 100; Lovatt v. Kuipe, 12 Ir. Eq. 124; Purcell i-. Buck- 
 ley, id. 55. 
 
 8 Oldham v. Hand, 2 Ves. 259; Wood v. Downes, 18 Ves. 120; Hall 
 V. Hallett, 1 Cox, 134; West v. Raymond, 21 Ind. 305. 
 
 * Newman v. Payne, 2 Ves. Jur. 199; Welles v. Middleton, 1 Cox, 
 112; 4 Bro. P. C. 245; Harris v. Tremenheere, 15 Ves. 34; Hunter r. 
 Atkins, 3 M. & K. 135 ; Cane v. Allen, 2 Dow, 289; Champion v. Rigby, 
 1 R. & M. 5-39 ; Bellow v. Ru.ssell, 1 B. & B. 107; Gibson i: Jeyes, 6 Ves. 
 277; Uppington v. Buller, 2 Dr. & W. 184; Walmsley v. Booth, 2 Atk. 
 
 (a) See Liles r. Terry, [ISO.'i] 2 lawful, but a champertous trust 
 
 Q. B. 079; United States v. Cothn, is wholly void. Johnson r. Van 
 
 83 F. R. 337; Donahoe v. Chicago Wyck, 4 App. D. C. 294; Frink v. 
 
 Cricket Club (111), 52 N. E. 351; McCorab, 60 F. R. 486. If an at- 
 
 Gibsoii V. Gossom (Ark.), 47 S. W. torney purchases his client's real 
 
 237 ; Kofued v. Gordon (Cal.), 54 estate at a judicial sale, the client 
 
 Pac. 1115; IMorrison v. Thomas may elect to hold him a trustee. 
 
 (Texas), 48 8. W. 500; Brigham Olson r. Lamb (Neb.), 76 N. W. 
 
 u. Newton, 49 La. Ann. 1539 ; infra, 433. See Ilerr r. Payson, 157 111. 
 
 § 212, n. (a). Contingent fees are 244; Ellis v. Allen, 99 Wis. 598. 
 
 291
 
 § 202.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 cannot produce evidence that puts the transaction clearly 
 l)cyond all doubt or question, it will be set aside or he will 
 be converted into a trustee.^ This disability of an attorney 
 continues as long as the relation of attorney and client con- 
 tinues, and as much longer as the influence of the relation 
 can be supposed to extend. If the relation has ceased, but 
 the influence of the relation continues to affect the minds 
 of the parties, all contracts made under the influence will be 
 avoided. 2 But if the relation has entirely ceased, and there 
 can be supposed to be no influence remaining, the rule will 
 not apply. ^ And so, if an attorney makes a purchase of a 
 client of property entirely disconnected with the subject of, 
 the litigation, and the transaction is in all respects as if it 
 had taken place between strangers, the rule will not apply. ^ 
 So the rule does not apply to a gift to an attorney in the will 
 of a client, if the will is a good and valid instrument in 
 the courts where it is presented for probate;^ and a voidable 
 conveyance to an attorney may be confirmed in the will of 
 
 30 ; Montesquieu v. Sandys, 18 Ves. 302 ; Edwards v. Meyrick, 2 Hare, 
 60; Wood V. Downes, 18 Ves. 120 ; Lewis v. Hillman, 3 H. L. Cas. 607 ; 
 Salmon v. Cutts, 4 De G. & Sm. 131; Holman v. Loynes,4 De G. M. & G. 
 270; King v. Savery, 5 H. L. Cas. 627; Robinson v. Briggs, 1 Sm. & Gif. 
 184; Greenfield's Est., 2 Harris, 489; Merritt v. Lambert, 10 Paige, 357; 
 WaUis V. Loubat, 2 Denio, 607 ; Howell v. Ransom, 11 Paige, 538; Evans 
 V. Ellis, 5 Denio, 640; Barry v. Whitney, 3 Sand. S. C. 696; Hawley v. 
 Cramer, 4 Cow. 717; Mott v. Harrington, 12 Vt. 199; Miles v. Ervin, 
 1 McCord, Ch. 524; Waters v. Thorn, 22 Beav. 547; Bank v. Tyrrell, 
 27Beav. 273; 10 H. L. Cas. 26; Wall v. Cockerell, id. 229; Brown v. 
 Kennedy, 33 Beav. 133; Smedley v. Varley, 23 Beav. 359; O'Brien v. 
 Lewis, 4 Gif. 221 ; Corley v. Stafford, 1 De G. & J. 238 ; Spring v. Pride, 
 10 Jur. (n. s.) 646; Gresley v. Mousley, 4 De G. & J. 78; Barnard v. 
 Hunter, 2 Jour. (n. s.) 1213 : Douglass v. Culverwell, 31 L. J. Ch. 65, 
 543; Brock r. Barnes, 40 Barb. 521. 
 
 1 Ibid,; Smith v. Brotherline, 62 Penn. St. 461. 
 
 2 Henry v. Raiman, 25 Penn. St. 354; Leisenring v. Black, 5 Watts, 
 303; Hockenbury v. Carlisle, 5 Watts & S. 350. 
 
 3 Wood V. Downes, 18 Ves. 127. 
 
 4 Edwards v. Meyrick, 2 Hare, 60; Bellows v. Russell, 1 B. & B. 104 ; 
 Montesquieu v. Sandys, 18 Ves. 302. 
 
 ^ Hindson v. Wetherell, 5 De G., M. & G. 30; overruling same case, 
 1 Sm. & G. 604. But see 23 L. Rev. 442, and notes to 1 Sm. & G. 604. 
 292
 
 CHAP. VI.] ATTORNEY AND CLIENT. [§ 203. 
 
 the client.i But the rule will not apply to an attorney inci- 
 dentally consulted concerninj^ some jjoint of the litigation, 
 but who is not employed or confided in, for the management 
 of the case,^ nor will it ajjply to the attorney upon the other 
 side. 3 Nor will it ajtj)ly alter the relation has ceased and 
 the attorney has assumed a hostile position in endeavoring to 
 collect his fees.* But it has been held that an attorney 
 having a lien or an execution in favor of his client could not 
 buy in land of his client at a sale thereof on execution.^ If 
 an attorney takes an absolute deed from a client in payment 
 of his fees, the court may order it to stand as a mortgage 
 security,^ and where there was a fair agreement that an 
 attorney's fees should be charged upon the estate, if recov- 
 ered, the court allowed it to stand in the absence of undue 
 influence,' and so the court will not interfere after a great 
 lapse of time where the sale was for full value. ^ Where an 
 attorney buys land at an execution sale in favor of his client, 
 the latter may elect to hold the lawyer his trustee, but must 
 make his choice within a reasonable time.^ 
 
 § 203. All the dealings between attorney and client will 
 be carefully examined by courts, and no purchase of a 
 client's property will be allowed to stand. '*^ Thus a bond 
 obtained from a poor and distressed client, the consideration 
 
 1 Stump V. Gaby, 2 De G., M. & G. G23. But see Waters v. Thorn, 
 22 Beav. 417. 
 
 2 Dobbins v. Stevens, 17 S. & R. 13 ; Deviuuey v. Norris, 8 AVatts, 
 314. 
 
 8 Bank v. Foster, 8 Watts, 305. 
 
 * Johnson v. Fesemeyer, 3 De G. & J. 13; Sniith v. Brotherline, G2 
 Penn. St. 461. 
 
 6 Stockton V. Ford, 11 How. 232. 
 
 ^ Pearson t'. Benson, 28 Beav. 508 ; Morgan r. Higgins, 5 Jour. (s. s.) 
 23(5. 
 
 ■^ Moss V. Bainbridge, 6 De G., M. & G. 292 ; Blagrave i". Routh, 2 K. 
 & J. 509. 
 
 * Clanricarde r. Ilenning, 30 Beav. 175. 
 
 9 Ward V. Brown, 87 Mo. 408. 
 
 i" Moore v. Brackin, 27 111. 23 ; Smith v. Brotherline, G2 Penn. St 
 461. 
 
 293
 
 § 204.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 not appearing with sufficient clearness, was set aside, ^ and 
 so a bond was not allowed to stand except for the amount 
 of fees actually due,^ and a judgment was inquired into after 
 a considerable lapse of time.^ And even where a barrister 
 married a lady client, and undertook to draw the marriage 
 settlement, according to the stipulations between them, it 
 was held to be open to investigation by the court.* (a) The 
 same rules are applied to all persons standing in the relation 
 of attorneys or confidential advisers, although they are not 
 attorneys in fact; thus clerks in an attorney's office, who do 
 business for the client and obtain a knowledge of his affairs 
 and his confidcDce, cannot avail themselves of their position 
 to make favorable bargains or purchases,^ and so one who 
 acts as a confidential adviser in a matter before a magistrate, 
 where attorneys are not employed, is under the same obliga- 
 tions and disabilities.^ Of course, if there is actual fraud 
 committed by an attorney in a purchase of a client, the 
 transaction will be summarily dealt with."^ 
 
 § 204. The same principles apply to transactions between 
 all persons standing in confidential and influential relations 
 to each other. The person thus possessing the confidence of 
 another, and having an influence by reason of such confi- 
 dence, cannot use his influence to obtain contracts, convey- 
 ances, or property, and the burden of proof is always on the 
 
 1 Proof V. Hines, Cas. t. Talb. Ill; Walmesley v. Booth, 2 Atk. 28. 
 
 2 Newman v. Payne, 4 Bro. Ch. 350 ; 2 Ves. Jr. 200 ; Langstaffe v. 
 Taylor, M Ves. 262; Pitcher v. Rigby, 9 Price, 79; Jones v. Roberts, 9 
 Beav. 419. 
 
 3 Drapers' Company v. Davis, 2 Atk. 295. 
 * Corley v. Stafford, 1 De G. & J. 258. 
 
 6 Hobday v. Peters, 28 Beav. 349; 6 Jur. (n. s.) 794; Cowdry v. Day, 
 5 Jur. (n. s.) 1199 : Gardner v. Ogden, 22 N. Y. 327 ; Poillou v. Martin, 
 1 Sandf. Ch. 569. 
 
 6 Buffalow V. Buffalow, 5 Dev. & Bat. Eq. 241. 
 
 ' Webster v. King, 33 Cal. 348. 
 
 (a) See Clark v. Girdwood, 7 Luddy's Trustee v. Peard, 33 Ch. D. 
 Ch. D. 9; Tyars v. Alsop, 61 L. T. 500. 
 8 ; James v. Kerr, 40 Ch. D. 449 ; 
 294
 
 CHAT. VI.] ADMINISTRATORS AND EXECL'TORS. [§ 205. 
 
 party standing in the position of influence, to show the 
 transaction just and fair.' Quasi guardians, husband and 
 wife, conlidcntial advisers, stewards, keepers of asylums in 
 which the quasi ward may have been treated, and confi- 
 dential medical advisei-s, all come witliin the rule.^ But 
 the mere fact that the donee is an attending piiysician, there 
 being no confidential relation, will not avoid a deed.^ iiut 
 the administrator of a deceased ])artner may buy the partner- 
 ship })roi)erty, although he may be a surviving partner.* 
 
 § 205. Upon the same principles, administrators and 
 executors cannot purchase the estate under their charge to 
 administer. They cannot purchase directly of themselves, 
 nor from the heirs, legatees, devisees, or other persons 
 interested in the estate,^ nor can they purchase indirectly by 
 
 1 Holt 1'. Agnew, 67 Ala. 3GS, 
 
 2 Trevelyan v. Charter, 9 Beav. 140; 11 CI. & Fin. 714; Revett r. 
 Harvey, 1 S. & S. 50'2; Hugneiiin v. Baseley, 14 Yes. 27;>; Gray v. Mans- 
 field, 1 Ves. 379; Wright v. Proud, 13 Ves. 130; Ahearne y. Ilogan, 1 
 Dr. 310 ; Billing v. Southee, 9 Hare, 534; 16 Jur. 188; Crispell w. Dubois, 
 4 Barb. 393; Blackie v. Clarke, 22 L. J. Ch. 377; Whitehorn v. Hines, 1 
 Munf. 559; Shallcross v. Oldham, 2 John. & H. 609 ; Dent r. Bennett, 
 4 M. & Cr. 209 ; Gibson v. Russell, 2 Y. & C. N. R. 104 ; Pratt r. Barker, 
 1 Sim. 1; Swissholm's App., 50 Penn. St. 475; Falk v. Turner, 101 Mass. 
 494 ; Rhodes v. Bate, L. R. 1 Ch. 252. 
 
 * Doggett V. Lane, 12 ]\Io. 215. 
 
 * Savage ?), Williams, 15 La. An. 250; Carter v. McManus, id. 041; 
 Dugas V. Gilbeau, id. 581. 
 
 6 Davoue v. Fanning, 2 Johns. Ch. 252 ; Yan Epps v. Van Epps,9 Paige, 
 237; Ward v. Smith, 3 San.lf. Ch. 592; Ames v. Browning, 1 Bradf. .321; 
 Rogers v. Rogers, 3 Wend. 503; Bostwick v. Atkins, 1 Comst. 53; Mi- 
 choud V. Girod, 4 How. 504 ; Drysdale's App. 14 Penn. St. 531 ; Moody v. 
 Yandyke, 4 Binn. 31; Beeson v. Beeson, 9 Barr, 279; Winter r. Geroe, 
 1 Halst. Ch. 319; Conway v. Green, 1 H. & J. 151; Bailey v. Robinson, 
 
 1 Grat. 4; Hudson v. Hudson, 5 j\Iunf. 180; Baiiies v. McGee, 1 Sm. & ]\r. 
 2i)S; Baxter v. Costin, 1 Busb. Eq. 2()2; Breckenridge v. Holland. 2 Blackf. 
 377 ; Edmunds v. Crenshaw, 1 McCord, Ch. 252. But in South Carolina 
 an executor may purchase the personal property. Stallings r. Foreman, 
 
 2 Hill Eq. 401 ; and so in Alabama, Julian v. Reynolds, 8 Ala. 080; Pey- 
 ton V. Enos, 16 La. An. 135; Yan AVeckle j'. Malla, id. 325; Huston v. 
 Cassidy, 2 Beas. 228 ; IMulford v. Winch, 3 Stockt. 10 ; Culver v. Culver, 
 id. 215; Dugas v. Gilbeau, 15 La. An. 581. 
 
 295
 
 § 205.] CONSTRUCTIVE TRUSTS. [cHAP. VI. 
 
 procuring a third person to purchase in the first instance, 
 and by receiving a conveyance from such tliird person.^ 
 This rule is so strict, that they cannot purchase any ot tho 
 assets of the estate under their charge, although the assets 
 are ordered by the court to be sold at public auction ;2 and 
 even where a creditor seized a portion of the estate and 
 exposed it to public sale, it was held that the executor or 
 administrator could not purchase.^ So if an executor join 
 with others in the purchase of the estate the sale may be 
 avoided.* If, however, the estate is sold in good faith to a 
 stranger, with no collusion between him and the executor, 
 there is nothing to prevent the executor from pui'chasing it 
 afterwards like any other property.^ So an executor may 
 purchase the interest of a third person in the estate.^ If 
 fraud is superadded to a purchase by an executor, or any use 
 of his situation is made to make a more favorable purchase, 
 it will of course be avoided, or he will be ordered to account 
 for the property and all the profits received.'^ But generally 
 a purchase of the assets of an estate by an executor is not 
 void, but only voidable, and such sale may be confirmed by 
 all the parties interested in the estate;^ and so a long acqui- 
 
 ^ Davoue v. Fauning, 2 Johns. Ch. 252; Paul v. Squibb, 12 Penn. St. 
 29G; Woodruff v. Cook, 2 Edw. Ch. 259 j Hawley v. Cramer, 4 Cow. 717; 
 Beaubien v. Poupard, Harr. Ch. 206 ; Buckles v. Lafferty, 2 Rob. 292 ; 
 Hunt V. Bass, 2 Dev. Eq. 292 ; Forbes v. Ilalsey, 26 N. Y. 53 ; Miles v. 
 Wheeler, 43 III. 123; Kruse v. Stephens, 47 111. 112; Smith v. Drake, 23 
 N. J. Eq. 302 ; Tiffany v. Clark, 1 N. Y. Sup. Ct. Add. 9. 
 
 2 Walliugton's Est., 1 Ashm. 307; Beeson v. Beeson, 9 Barr, 279; 
 Rham v. North, 2 Yeates, 117; Jewett v. Miller, 10 X. Y. 402; Fox v. 
 Mackreth, 1 Lead. Cas. Eq. 1; Colgate v. Colgate, 23 X. J. Eq. 372; Col- 
 burn V. Morton, 1 N. Y. Dec. 378; Farrar v. Farley, 3 S. C. 11. 
 
 3 Spindler v. Atkinson, 3 Md. 410; Fleming v. Teran, 12 Ga. 394; 
 Wyncoop v. AVyncoop, 12 Ind. 206. But the contrary rule was held in 
 Fisk V. Sarber, 6 Watts & S. 18; Prevost v. Gratz, 1 Pet. C. C. 304; 
 Campbell v. Johnson, 1 Sandf. Ch. 148 ; Bank of Orleans v. Torrey, 7 Hill, 
 200. 
 
 4 ]\Iitchum I'. Mitchum, 3 Dana, 2G0; Paul i-. Squibb 12 Penn. St. 296. 
 6 Silverthorn v. McKinister, 12 Penn. St. 67. 
 
 * Alexander v. Kennedy, 3 Grat. 379. 
 
 ' Yanhorn v. Fonda, 5 Johns. Ch. 388; Hudson v. Hudson, 5 ]Munf. 180. 
 
 * Harrington v. Brown, 5 Pick. 519; Bruch v. Lantz, 2 Rawle, 392; 
 
 296
 
 CHAP. VI.] PRINCIPAL AND AGENT. [§ 206. 
 
 cscence in a purchase made by an executor, by all the hciis, 
 W()ulJ 1)0 held to be a confirmation.' If an administrator 
 purchases the estate at his own sale, and afterwards conveys 
 the estate to a third person, his vendee will be charged with 
 notice of the defect of title, as it would be apparent upon 
 the face of the deed.^ But if the administrator should col- 
 lusively convey to a third person and take back a deed from 
 him, and then himself sell, the purchaser would not prob- 
 ably be charged with notice unless he had actual notice.^ 
 
 § 206. The relation of principal and agent is a fiduciary 
 one, and the same observations apply as to other relations of 
 trust and confidence, (a) Some have doubted Avhcther it 
 would not have been wiser to have })rohibited all contracts 
 
 Pennock's App., 14 Penn. St. 440 ; Loiigworth v. (Jofoith, Wright, 192 ; 
 Dunlap V. Mitchell, 10 Ohio, 117; Williams v. Marshall, 4 G. «fc J. o77 ; 
 Moore v. Ililtou, 12 Leigh, 2 ; Scott v. Freeland, 7 Sin. & M. 410; Ljou 
 V. Lyon, 8 Ired. Eq. 201. 
 
 ^ Jennisoii v. Ilapgood, 7 Pick. 1 ; Hawley v. Cramer, 4 Cow. 719 ; 
 Ward V. Smith, 3 Saiidf. Ch. 592 ; Baker v. Read, 18 P.eav. .398 ; Mussel- 
 man V. Eshelman, 10 Barr, 394; Bell v. Webb, 2 Gill, 164; Todd v. Moore, 
 1 Leigh, 457. 
 
 2 Lazarus v. Bryson, 3 Binn. 59 ; Ward v. Smith, 3 Sandf. 592 ; Smith 
 V. Drake, 23 N. J. Eq. 302; Potter v. Pearson, 60 Maine, 220. 
 
 * Johnson v. Bennett, 39 Barb. 237. 
 
 (a) A mere agent is not a trus- not to attempt personal gain di- 
 tee when he does not claim or pos- rectly or indirectly by purchasing 
 sess title. Brown r. Brown, 154 or dealing with his principal's jirop- 
 Hl. 35; Stanford i'. ]\Iann, 1G7 111. erty. Lister v. Stubbs,45Ch. 1). 1; 
 79; Comleyi-. Dazian,114N.Y. 161. Halsey v. Cheney, 68 F. R. 763; 
 The cashier of a bank is not a legal Stevenson v. Kyle, 42 W. Va. 229 ; 
 trustee ; and he may hold in his Tyler v. Sanborn, 128 111. 136 ; Dar- 
 own right land bought with prop- lington's Estate, 147 Penn. St. 624; 
 erly borrowed money of the bank. Luscombe r. Grigsby (S. D.), 78 
 Barth v. Koetting, 99 Wis. 242. An N. W. 357. He becomes a con- 
 agent cannot constitute himself a structive tru.stee when, in violation 
 trustee against his principal. Wright of his duty to his principal, or by 
 0. Mills, 63 L. T. 186. An agent's misusing the latter's funds, he pur- 
 possession of securities for a loan is chases real t>sf ate for himself. Ibid. ; 
 deemed that of his principal. Low- (Jashe r. Young (Oiiio), •■)8 N. E. 20; 
 ery r. Erskine, 113 X. Y. 52. He is Boswell r. Cunningham. 32 Ela. 277; 
 under the same duty as a trustee Lee c. Patten, 34 Fla. 1 19; (irouch 
 
 297
 
 § 206.] 
 
 CONSTRUCTIVE TKUSTS. 
 
 [chap. vr. 
 
 between parties sustaining these relations to each other, and 
 to have thus taken away all temptation to abuse the trust, 
 V. Hazlehurst L. Co. (Miss.), 16 So. the other party has already repu- 
 496; Walter r. Jones, 107 Ala. 331. diated it. Bolton v. Lambert, 41 
 Thus, an agent, purchasing as such Ch. D. 295 ; 37 W. R. 236, 434 ; 
 at an auction sale, may be com- Long v. King (Ala.), 23 So. 534 ; 
 pelled to convey the purchased es- see Clews v. Jamieson, 89 F. R. 63. 
 tate, if he takes the title in his own The relation of a factor to his 
 
 name. See Fletcher v. Bartlett, 157 principal may be at the same time 
 
 Mass. 113 ; Roby v. Colehour, 135 
 111. 300 ; Collins v. Williamson, 94 
 Ga. 635; Hughes v. Wilson, 128 
 Ind. 491 ; Chaffiu v. Hull, 42 F. R. 
 524; Lee v. Patten, 34 Fla. 149; 
 Bourke v. Callanan, 160 Mass. 195. 
 In such cases the trust can be en- 
 forced by the principal's grantee. 
 Milner v. Rucker, 112 Ala. 360. In 
 
 that of debtor and creditor and one 
 of trust. See Patapsco Guano Co. v. 
 Bryan, 118 N. C. 576. See Leap- 
 hart V. Commercial Bank, 45 S. C. 
 563; Davis v. Scovern, 130 Mo. 303; 
 Gisborn v. Charter Oak Life Ins. 
 Co., 142 U. S. 326. When the legal 
 title to the proceeds of consigned 
 goods, deposited in a bank, is in a 
 
 general, even a bona fide purchaser factor, and the principal is thereby 
 from any agent gets no better title prevented from suing the bank at 
 
 than the agent had to personal prop- 
 erty other than negotiable paper or 
 money, and the principal may re- 
 cover it. Gilman Linseed Oil Co. 
 I'. Norton, 89 Iowa, 434 ; Stevenson 
 V. Kyle, 42 W. Va. 229. 
 
 The statute of frauds distin- 
 guishes between an agency and a 
 trust or confidence, and an agent, 
 who buvs for himself with his own 
 
 law, the latter may maintain a bill 
 in equity against the bank, if it 
 receive the payment with knowl- 
 edge that the money belongs equit- 
 ably to the factor's consignor. Union 
 Stock Yards Bank v. Gillespie, 137 
 U. S. 411, 419. 
 
 When money is placed in the 
 hands of one person to be delivered 
 to another, a trust arises in the 
 
 money, when directed by his princi- latter's favor, which he may enforce 
 
 pal to buy for him, will not be re- by bill in equity, if not by action at 
 
 quired to convey to the principal, law ; the acceptance of the money 
 
 James v. Smith, [1891] 1 Ch. 384, with notice of its ultimate destina- 
 
 388, sustaining Bartlett v. Picker- tion being sufficient to create a duty 
 
 gill, 1 Eden, 515 ; 4 East, 577, n., on the bailee's part to devote it to 
 
 which was doubted in Heard v. the purposes intended by the bailor. 
 
 Pilley, L. R. 4 Ch. 548. See 
 Browne, St. of Frauds, § 96 ; Hal- 
 sell V. Wise County Coal Co. (Tex. 
 C. App.), 47 S. W. 1017. The 
 
 In enforcing such trust, a court of 
 equity may make such incidental 
 orders as may be necessary for the 
 proper protection and distribution 
 
 principal may also ratify his agent's of the fund. Keller v. Asliford, 133 
 
 authorized acts, and his right to U. S. 610; Union Life Ins. Co. v. 
 
 ratify and enforce the agent's con- Hanford, 143 U. S. 187; McKee u. 
 
 tract is not affected by the fact that Lamon, 159 U. S. 317, 322. 
 298
 
 CHAP. VI.] PRINCIPAL AND AGENT. [§ 206. 
 
 rather than to investigate each case as it arises.* But per- 
 haps the entire freedom of trade and Ijusincss, and tlic con- 
 venience of society, demand that there should be at least the 
 possibility of dealing between persons bearing these rela- 
 tions, and thus there is no absolute prohibition. The j)rin- 
 cipal may buy and sell of the agent, and he may make an 
 agent the object of his bounty, but there must be the utmost 
 good faith and frankness in the dealing.^ The principal is 
 entitled to the best skill and judgment of his agent in the 
 conduct of his affairs. If at the same time the agent is at 
 liberty to purchase the property of his principal, there would 
 be such a conflict between his duty and his interest, that 
 there could be no safety in business. An agent, therefore, 
 if he purchases property of his principal, must communicate 
 fully and truly every fact in relation to such property within 
 his knowledge; and he must also be known as the purchaser, 
 for if he acts secretly the contract will certainly be held to 
 be fraudulent; and so if he is employed to purchase for 
 another and he jnirchases for himself, he will be held to be 
 a trustee. 3 No person whose duty to another is inconsistent 
 with his taking an absolute title to himself will be per- 
 mitted to purchase for himself. For no one can hold a 
 
 1 Dunbar v. Tredennick,2 B. & B, 319 ; Norris v. La Xeve, 3 Atk. 38; 
 Fairman v. Bavin, 29 111. 75. 
 
 * Selsey v. Rhoades, 2 S. & S. 49; 1 Bligh, 1 ; Kerr v. Dungannon, 
 
 1 Dr. & W. 509, 541 ; Hugueuin v. Baseley, 14 Yes. 273 ; Molony r. Ker- 
 nan, 2 Dr. & W. 31 ; Harris v. Tremenlieere, 15 Ves. 40 ; Wiuchelsea v. 
 Garrety, 1 M. & K. 253 ; Benson v. Heatham, 1 Y. & C. Ch. 320 ; Xeeley 
 V. Anderson, 2 Strob. Eq. 2G2 ; Brooke v. Berry, 2 Gill, 83; Peisch v. 
 Quiggle, 57 Penn. St. 247. 
 
 8 Lees V. Nuttall, 1 R. & M. 53 ; Taml. 282 ; Church v. Marine Ins. 
 Co., 1 Mason, 341 ; Crowe r. Ballard, 3 Bro. Ch. 120; Barker v. Ins. Co., 
 
 2 Mason, 309 ; Massey v. Davies, 2 Ves. Jr. 318; Woodhouse r. Mereditli, 
 1 J. & W. 204 ; Purcell r. Macnamara, 14 Ves. 91 ; Wott r. (irove, 2 Sch. 
 & Lef. 492 ; Lowther v. Lowther, 13 Ves. 102; Green v. Winter, 1 Johns. 
 Ch. 27; Morret v. Paske, 2 Atk. 53; Coles v. Trecothick, 9 Ves. 24G; 
 Parkist v. Alexander, 1 Johns. Ch. 394 ; Gray v. Mansfield, 1 Ves. 379 ; 
 Belt, Suppl. 167; Fox v. Mackreth, 2 Bro. Ch. 400; 2 Cox. 320; 1 Lead. 
 Cas. Eq. 92, and notes ; Dennis v. McCoy, 32 111. 429 ; Safford v. Hinds, 
 39 Barb. 625 ; Squire's App., 70 Penu. St. 268. 
 
 299
 
 § 206.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 benefit acquired by fraud or a breach of his duty.^ All the 
 knowledge of the agent belongs to the principal for whom 
 he acts, and if the agent use it for his own benefit, he will 
 become a trustee for his principal. ^ Whenever one person 
 is placed in a relation to another, by the act or consent of 
 that other, or the act of a third person, or of the law, so 
 that he becomes interested for him or with him in any sub- 
 ject of property or business, he will in equity be prohibited 
 from acquiring rights in that subject antagonistic to the 
 person with whose interest he has been associated.^ There- 
 fore, whatever an agent may be employed to do, he cannot 
 use his position nor the knowledge obtained by his employ- 
 ment to obtain a bargain from his principal. Nor can he 
 take advantage of his own negligence ; as where an agent 
 allowed his principal's property to be sold for taxes and 
 bought it himself, he was held as a trustee, although the 
 relation of principal and agent had ceased.^ In some cases 
 he may innocently purchase of his principal ; but if he con- 
 ceals himself and acts through another, either in purchas- 
 ing from or selling to his principal, he may be held as a 
 trustee, or the contract maybe entirely avoided;^ or if he 
 
 1 Reed v. Warner, 5 Paige, 650 ; Sweet v. Jacocks, 6 Paige, 355 ; Lees 
 V. Nuttall, 1 R. & M. 53 ; Torrey v. Bank of Orleans, 6 Paige, 650 ; Green- 
 field's Est., 2 Harris, 489; Sheriff v. Neal, 6 Watts, 534; Plumer v. Reed, 
 
 2 Wright, 46; Hoge v. Hoge, 1 Watts, 163; Swartz v. Swartz, 4 Barr, 
 353; Harrold v. Lane, 3 Penn. St. 268 ; Jenkins v. Eldredge, 3 Story, 181 ; 
 Morris l: Nixon, 1 How. 118 ; Seichrist's App., 66 Penn. St. 237; Squire's 
 App., 70 id. 268. 
 
 2 Gillett V. Peppercorne, 3 Beav. 78 ; Taylor v. Salmon, 2 Mee. & Comp. 
 139; 4 M. & C. 139 ; Voorhees v. Church, 8 Barb. 136 ; Van Epps r. Van 
 Epps, 9 Paige, 237 ; Torrey v. Bank, &c., id. 649 ; Cram v. Mitchell, 1 Sandf . 
 251 ; Dobson v. Racey, 3 Sandf. 61 ; Reed v. Norris, 2 M. & Cr. 361 ; Ringo 
 r. Binns, 10 Pet. 209 ; Farnham v. Brooks, 9 Pick. 212; Davis v. Hamlin, 
 108 111. 39. 
 
 8 Davis V. Hamlin, 108 111. 39 ; Allen v. Jackson, 122 HI, 567. 
 
 * Morris v. Joseph, 1 W. Va. 256. 
 
 6 Winn V. Dillon, 27 Miss. 494 ; Lewis v. Ilillman, 3 H. L. Cas. 629 ; 
 Parkist v. Alexander, 1 Johns. Ch. 394 ; Sweet v. Jacocks, 6 Paige, 364 ; 
 Bank of Orleans v. Torrey, 7 Hill, 200 ; 9 Paige, 053 ; Myer's App., 2-Barr, 
 463; Rankin r. Porter, 7 AVatts, 387; Piatt v. Oliver, 2 McLean, 207; 
 
 3 How. 353 ; Church v. Ins. Co., 1 Mason, 341 ; Teakle v. Barley, 2 Brock. 
 
 300
 
 CHAP. VI.] rUINCIl'AL AND AGENT. [§ 207. 
 
 accepts any Ijcncfits in condiictiiit; tlio Inisincss of liis prin- 
 cipal, he will hold them in trust for him,' or if he makes 
 use of his position in any way to obtain a title to himself.^ 
 If in matters within the purposes <jf his agency he takes a 
 conveyance in his own name, he is a trustee ex maleficio,^ as 
 if he buys a tax certificate for his ])rincipal and then takes 
 the deed in his own name.^ And where one partner C. gets 
 a lease of the premises in his father's name when the other 
 partner D. had a right to expect he would secure a joint 
 lease for the partnership, C.'s father holds in trust not only 
 for C. but for D. also.^ So if he buys for himself and his 
 partner the land which he was engaged to buy for the plain- 
 tiff, and has the deed made to his partner and ]jays the 
 money from his own funds, still a trust will result, and the 
 payment will be considered only as a loan, on security of 
 the title. ^ But where one breaks a mere parol agreement 
 to buy land for another and buys it himself, there is no 
 trust, but only a breach of parol contract." The test is 
 whether the act is inconsistent with duties resulting from a 
 relation of confidence between the parties.^ 
 
 § 207. The directors of corporations are trustees and 
 agents of the shareholders and of the corporation, and the 
 same rules arc applied to the contracts of directors with the 
 corporation, as are applied to the dealings of other parties 
 
 44 ; Oldham v. Jones, 5 B. Mon. 467 ; Banks r. Judah, 8 Conn. 146 ; Cope- 
 land V. Ins. Co., 6 Pick. 19S ; McGregor v. Gardner, 14 Iowa, 32G ; Clark 
 V. Lee, id. 425. 
 
 1 Bailey v. Watkins, Sug. Law of Prop. 726 ; Gaskell v. Chambers 26 
 Beav. .360. 
 
 2 Smith c. Wright, 49 111. 403. 
 
 8 Squire's App., 70 Penn. St. 268; ]\IcMurry v. Mobley, 39 Ark. 313 ; 
 Vallette v. Tedens, 122 111. 607; Byington v. Moore, 62 Iowa, 470; Kraemer 
 I'. Duestermann, .37 Minn. 469. 
 
 * Collins V. Raincy, 42 Ark. 531. 
 
 ^ dishing V. Daiiforth, 76 Maine, 114. 
 
 6 Bryan v. McNanghton, 38 Kans. 98. 
 
 ' Hackney v. Butts, 41 Ark. 394. See § 134. 
 
 8 Farley c. Kittson, 27 Minn. 102, at 105. 
 
 301
 
 § 207.] CONSTKUCTIVE TKUSTS. [CHAP. IV. 
 
 holding a fiduciary relation to each other.' (a) The direc- 
 tors are intrusted with the management of the property of 
 the corporation for the best interests of all the members, and 
 the directors are bound to execute their trust; nor must they 
 allow their private interests to interfere with the duties of 
 the trust that they have assumed, nor assume a position 
 tending to produce a conflict between their private interests 
 and the discharge of their fiduciary duties. ^ It is said that 
 
 1 Gaskell v. Chambers, 26 Beav. 360; Great Luxembourg R. Co. v. 
 Magnay, 586; Ex parte Bennett, 18 Beav. 339; Cumberland Coal Co. v. 
 Hoffman Steam Coal Co., 18 Md. 456; Cumberland Coal Co. v. Sherman, 
 30 Barb. 553; 25 Md. 117 ; Aberdeen R. Co. v. Blaikie, 1 McQueen, 461, 
 Michoud V. Girod, 4 How. 544; Hodges v. New. Eng. Screw Co., 1 R. I. 
 321 ; York & North Midland R. Co. v. Hudson, 16 Beav. 485; 19 Eng. L. 
 & Eq. 365; Benson v. Heathorne, 6 Y. & C. C. C. 326; Verplanck v. Ins. 
 Co., 1 Edw. Ch. 84 ; Percy v. Milladon, 3 La. 568 ; Robinson v. Smith, 3 
 Paige, 222; IVIurray v. Vanderbilt, 39 Barb. 237; Flint, &c. R. R. Co. v. 
 Dewey, 14 Mich. 477 ; European & N. Am. Railw. Co. v. Poor, 59 Maine, 
 277 ; Scott v. Depeyster, 1 Edw. Ch. 513 ; Butts v. Wood, 38 Barb. 188 ; 
 Ashurst's App., 60 Pa. St. 290; Drury v. Cross, 7 Wall. 299; Sawyer v. 
 Hoag, 17 Wall. 610 ; Land Credit Co. v. Fermoy, L. R. 8 Eq. 12 ; Bank 
 Com'rs V. Bank of Buffalo, 6 Paige, 503. 
 
 2 It is a breach of trust for railroad directors to assume inconsistent 
 obligations by becoming members of a company with whom they have 
 made a contract to build and equip their road ; and in such case no ques- 
 tion will be allowed to be raised as to the fairness of the transaction, and 
 
 (a) Promoters of a corporation purchase a site for its plant with 
 
 cannot rightfully gain any advan- money to be treated as a payment 
 
 tage over other members and are on his subscription to its stock, and 
 
 liable for profits received by them after making such payment, and 
 
 in violating their duty. In re North secretly taking the deed in his own 
 
 Australian Territory Co., [1892] name, constructed the plant with 
 
 1 Ch. 322; In re Postage Stamp corporate funds, leading the other 
 
 Automatic Delivery Co., [1892] 3 Ch. members to suppose that the cor- 
 
 566 ; Fountain Spring Park Co. v. poration owned the land, he was 
 
 Roberts, 92 Wis. 345, 347; Scadden held to be a constructive trustee 
 
 Flat Co. V. Scadden, 121 Cal. 33; see ex maleficio of the land for the cor- 
 
 Yale Gas Stove Co. v. Wilcox, 64 poration's benefit. Nester v. Gross, 
 
 Conn. 101; 35 Am. L., Reg. n. s. 66 Minn. 371. See Palmetto L. Co. 
 
 713. Where a person who was pro- v. Risley, 25 S. C. 309; Halsell r. 
 
 moter and president of a corporation Wise County Coal Co. (Texas), 47 
 
 agreed with the other members to S. W. 1017; supra, § 178, n. (a). 
 302
 
 CHAP. VI.] PRINCIPAL AND AGENT. [§ 207. 
 
 the contracts of trustees are of two classes. One class con- 
 sists of contracts made by trustees with themselves, or with 
 a board of trustees or directors of which they are members. 
 These contracts are void from the fact that no man can 
 contract with himself. If, therefore, a board of directors 
 should convey all the property of a corporation to them- 
 selves, the conveyance would be void, without any inquiry 
 into its fairness, or whether it was beneficial to the corpora- 
 tion or not. And the same rule applies if a board of direc- 
 tors convey the property of a corporation, or any part of it, 
 to one of their number, he being one of the trustees nego- 
 tiating a contract with himself.* And the same rule was 
 applied where the trustees of one corporation, being the 
 trustees of another corporation, conveyed the property of the 
 one corporation to another, although there was a decree of 
 court. 2 The other class of contracts is where a trustee 
 contracts with the cestui que trust, or a third person. These 
 contracts are not void ; as where a director makes a pur- 
 chase of property from the corporation itself, acting inde- 
 pendently of its directors, the contract is not void ; but the 
 same rules apply, that apply to other trustees purchasing of 
 the cestui que trust : the burden is upon the trustee to vindi- 
 cate the transaction from all suspicion.^ And so all advan- 
 
 no injury to the ccxtui que trust need be proved. Oilman C. & S. R. R. 
 Co. V. Kelly, 77 111. 426. But where stockholders sanction a contract 
 under which directors loan money to the corporation, and its bonds 
 secured by mortgage are given, if the money is properly applied, the cor- 
 poration is estopped from setting up that the bonds and mortgage are 
 void by reason of the trust relations which directors sustain to it. Hotel 
 Co. V. Wade, 97 U. S. 75. A director who receives paid-up shares from 
 the promoters of the corporation for acting as director will hold as 
 trustee, and may be required to pay the highest value of the shares at 
 the election of the company. Xant-y-Glo & Blaina Iron Works Co. v. 
 Grave, L. R. 12 Ch. 73S. 
 
 ^ Cumberland Coal Co. v. Sherman, 30 Barb. 503 ; Ogden v. Murray, 
 39 N. Y. 202 ; Bliss v. Matteson, 45 N. Y. 22 , Buffalo, &c. R. R. Co. p. 
 Lampson, 47 Barb. 533 ; Imperial Mer. Cred. Ass'n v. Coleman, L. R. 6 
 Ch. 505. 
 
 2 St. Jamos Church v. Church of the Redeemer, 45 Barb. 356. 
 
 8 Ibid.; Beeson v. Beeson, 9 Penn. St. 2S0. 
 
 303
 
 § 208.] CONSTEUCTIVE TRUSTS. [cHAP. VI. 
 
 tages, all purchases, all sales, and all sums of money 
 received by directors in dealing with the property of the 
 corporation, are made and received by them as trustees of 
 the corporation, and they must account for all such moneys, 
 or advantages received by them by reason of their position 
 as trustees.^ 
 
 § 208. Again, if the parents, relations, agents, or friends 
 of young persons hold out inducements of marriage by repre- 
 senting the amount of property that will come to one or the 
 other of the parties; or if they hold out pecuniary considera- 
 tions to induce the marriage, and if the marriage and a 
 marriage settlement take place upon the faith of such repre- 
 sentations and inducements, the persons making them will 
 be bound to make them good : if the persons making the 
 representations and holding out the inducements have the 
 property referred to in their hands or under their control, a 
 court of equity will construe them into trustees of such 
 property for the parties to whom the inducements were held 
 out; and the court will compel them to execute the trust by 
 making good the representations or inducements, if they are 
 of such a character that a party entering into a marriage 
 might reasonably have relied upon them.^ If, however, a 
 person states his intention to confer property upon one of the 
 parties to a marriage, as that he has made his will giving a 
 certain estate to one of the parties, and that he does not know 
 any reason, or have any intention of altering it, but at the 
 same time refuses to make any contract or agreement, or to 
 be bound in any way not to alter his will, equity will not 
 compel the execution of such a representation or intention ; 
 
 1 Gaskell v. Chambers, 26 Beav. 360; Bowers v. City of Toronto, 11 
 iMoore, P. C. Cas. 463 ; Ex parte Hill, 32 L. J. Ch. 154. 
 
 2 Hamersley v. De Biel, 12 CI. & Fin. 45 ; Downes v. Jennings, 32 
 Beav. 290; Hunt v. Mathews, 1 Vern. 408; Walford v. Gray, 11 Jur. 
 (x. 8.) 106, 403 ; Jordan v. Money, 5 H. L. Cas. 185 ; 8 Jur. (n.s.) 281 ; 
 Caton t'. Caton, L. R. 2 H. L. 127 ; Coverdale v. Eastwood, L. R. 15 
 Eq. 122 ; Saunders r. Cramer, 3 Dr. & War. 87 ; Moorhouse v. Calvin, 
 15 Beav. 341; Laver v. Fielder, 32 Beav. 1; 1 Story's Eq. Jur. §§ 268- 
 272. 
 
 304
 
 CHAP. VI.] TRUSTEES OF CORPORATIONS. [§ 209. 
 
 and the estate named cannot be affected by a constructive 
 trust in favor of tbe ])arty to the marriage, in case the will 
 is afterwards altered, and tbe estate is given to some other 
 person. * 
 
 § 209. These rules apply to every kind of fiduciary rela- 
 tion. The principle is the same in all of them. Assignees 
 of bankrujjt or insolvent estates are subject to the same 
 rules, whether they arc aj)pointcd by courts and by ojteration 
 of law, or by voluntary assignments, or by deeds of trust for 
 creditors.^ So the solicitors of a bankrupt cannot purchase 
 his property. Committees or guardians of a lunatic cannot 
 obtain the ownership of the property,^ nor can the directors, 
 trustees, or governors of a charity so deal with the funds of 
 the charity, or take leases of the charity lands, as to make a 
 profit to themselves.* And so of partners and joint contrac- 
 tors, or purchasers and receivers. In all these cases the 
 fiduciary must account for all the trust property that comes 
 to his hands, whether by purchase or otherwise, and for all 
 profits which may come to him by dealing with such prop- 
 erty, and even for all bonuses or gratuities given to him by 
 strangers for contracts made with them in relation to the 
 trust property.^ For example, a bank officer cannot make a 
 
 1 Maunsell r. Hedges, 4 II. L. Cas. 10.39 ; 1 Lead. Cas. Eq. 782 ; Kay 
 V. Crook, 3 Sm. & Gif. 407; Stroughill v. Gulliver, 2 Jur. (x. s.) 700; 
 Randall v. ^Morgan, 12 Yes. 67 ; De Biel v. Thompson, 3 Beav. 469, 475 ; 
 1 Jon. & La. 539, 569. 
 
 2 Ex parte Hughes, 6 Ves. 617 ; IMorse v. Royal, 12 Ves. 372 ; Ex parte 
 Morgan, id. 6; Ex parte Lacey, 6 Ves. 625; Ex parte Reynolds, 5 Ves. 
 705; Ex parte Bennett, 10 Ves. 381; Campbell v. McLain, 23 Leg. Intel. 
 26, Phila. ; Fisk v. Sarber, 6 W. & S. 18 ; Beeson v. Beeson, 9 Barr, 284 ; 
 Dorsey v. Dorsey, 3 H. & J. 410 ; Chapin v. Weed, 1 Clark, 264 ; Salt- 
 marsh V. Beene, 4 Porter, 283; Harrison v. Mocks, 10 Ala. 185; Wade v. 
 Harper, 3 Yerg. 383. 
 
 8 Wright y. Proud. 13 Ves. 136; Campbell u. McLain, 51 Penn. St. 
 200. 
 
 * Att. Gen. v. Clarendon, 17 Ves. 500. 
 
 6 Bailey v. Watkins, Sag. Law of Prop. 726; Parshall's App., 65 Penn. 
 St. 233; Swissholm's App., 56 id. 475; King v. Wise, 43 Cal. 628; 
 Carr v. Ilouser, 46 Ga. 477. 
 
 VOL. I. — 20 305
 
 § 210.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 profit for himself by loaning the bank's money, but will have 
 to bear all losses arising from the attempt.^ Whenever two 
 persons stand in such relation that confidence is necessarily 
 reposed by one, and the influence growing out of that fact is 
 possessed by the other, and this confidence is abused or the 
 influence is exerted to obtain an advantage at the expense of 
 the confiding party, the party so availing himself of his 
 position will not be permitted to retain the advantage. ^ 
 Trustees cannot use their relations to the trust property for 
 their personal advantage.^ 
 
 § 210. But equity goes even further than this. It not only 
 watches over these defined relations of parties, but it scruti- 
 nizes the undefined relations of friendly habits of inter- 
 course, personal reliance, and confidential advice."* It is 
 well known that habits of kindness, confidence, and trust 
 grow between neighbors and friends; and if advantage is 
 taken of such relations to obtain an unfair bargain, equity 
 will set it aside or convert the offending party into a trustee.^ 
 Of course no rules can be laid down by which to judge all 
 such cases ; for every case must of necessity depend upon its 
 own facts. ^ Nor will a gift or sale be set aside merely be- 
 cause it is to a confidential friend or adviser, even though it 
 is made by an old and infirm person, or by one of weak mind ; 
 but if there is any proof of any superadded concealment, mis- 
 representation, or contrivance, or any art by which the party 
 was thrown off his guard, or unduly influenced by his trust 
 and confidence in, or partiality for a supposed friend, equity 
 will interpose and correct the wrong. ^ Dealings of ship- 
 
 1 Oakland Bank of Savings v. Wilcox, 60 Cal. 126. See also Bowling 
 V. Feeley, 72 Ga. 557. 
 
 2 Bohm V. Bohm, 9 Col. 100. 
 
 3 Ellicott V. Chamberlin, 38 N. J. Eq. 604. 
 
 4 Hunter v. Atkins, 3 M. & K. 140 ; James v. Holmes, 8 Jur. (n. s.) 
 553, 732; Falk v. Turner, 101 Mass. 194. 
 
 5 Ibid.; Dent r. Bennett, 4 M. & Cr. 277; Smith v. Kay, 7 H. L. Cas. 
 750. 
 
 « Hunter v. Atkins, 3 M. & K. 140. 
 
 7 Dent V. Bennett, 7 Sim. 539 ; 4 M. & C 269; Huguenin v. Baseley, 
 306
 
 CHAP. VI.] FRAUDS OF THIRD PERSONS. [§ 211. 
 
 owners with their masters.* of parishioners with their clergy- 
 men,2 of medical advisers with their patients,'^ of friends 
 and neighbors who by their situation and habits of inter- 
 course have obtained the confidence of each other,^ and of a 
 man and woman living together as husband and wife,^ come 
 within this rule. And so the relation of landlord and tenant, 
 partner and partner, principal and surety, and tenants in 
 common may create such influences of trust and confidence 
 that courts of equity will construe a trust to arise out of 
 their contracts, or will decree such contracts to be set aside.*' 
 
 § 211. So property obtained by one through the fraudulent 
 practices of a third person will be held under a constructive 
 trust for the person defrauded, though the person receiving 
 the benefit is innocent of collusion. If such person accepts 
 the property, he adopts the means by which it was procured ; 
 or, as Lord Ch. Justice Wilmot said, "Let the hand receiv- 
 ing the gift be ever so chaste, yet if it comes through a 
 polluted channel, the obligation of restitution will follow 
 it. "'^ This principle of course cannot prevail against a pur- 
 
 U Ves. 273; Gibson r. Russell, 2 N. C. C lOi; Griffiths i-. Kobins, 3 
 Madd. 191 ; Popham ii. Brooke, 5 Russ. 8; Maul v. Reder, 51 Penn. St. 
 377; Lengenfitter r. Ritching, 58 Penn. St. 487. 
 
 1 Shallcross v. Oldham, 2 John. & H. 609. 
 
 2 Greenfield's Estate, 24 Penn. St. 232 ; Scott v. Thompson, 21 Iowa, 
 599. 
 
 8 Pratt V. Barker, 1 Sim. 1 ; 4 Russ. 507 ; Crisspell v. Dubois, 4 Barb. 
 393 ; Billing i\ Southee, 10 Eng. L. & Eq. 37. 
 
 * Hunter v. Atkins, 3 M. & K. 113; Greenfield's Estate, 14 Penn. St. 
 489 ; Cooke v. Lamotte, 15 Beav. 234; Smith v. Kay, 7 II. L. Cas. 750. 
 
 B James v. Holmes, 8 Jur. (n. s.) 553, 732; 4 I)e G., F. & J. 470. 
 
 6 INIaddeford v. Austwick, 1 Sim. 89; Farnham v. Brooks, 9 Pick. 212; 
 Oliver v. Court, 8 Price, 127; Griffiths v. Robins, 3 IMadd. 191; People v. 
 Jansen, 7 Johns. 332 ; 2 Johns. 554 ; Dawson v. Lawes, Kay, 280; Camp- 
 bell V. Moulton, 30 Vt. 667; Boultbee r. Stubbs, 18 Ves. 23; Ex parte 
 Rushforth, 10 Ves. 409; Hayes v. Ward, 4 Johns. Ch. 123 ; Mayhew r. 
 Crickett, 2 Swanst. 186; Keller v. Auble, 58 Penn. St. 412 ; Duff v. Wil- 
 son, 72 id. 442; Mandeville v. Solomon, 33 Cal. 38. 
 
 ' Bridgman v. Green, 2 Ves. 627; Wilm. 58, 64; Luttrell r. Olmius, 
 cited 11 Ves. 638; 14 Ves. 290; Huguenin r. Baselej-, id. 289; Graves r. 
 Spier, 58 Barb. 349 ; Newton v. Porter, 5 Laus. 417. But see Dixon v. 
 Caldwell, 15 Ohio, 412. 
 
 307
 
 § 212.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 chaser in good faith for a valuable consideration, and with- 
 out notice of any fraudulent influence. 
 
 § 212. So a contract intended to defraud third persons, 
 who are not parties to it, will be set aside, or a trust will be 
 declared for such third persons.^ Thus, if property is con- 
 veyed by a debtor for the purpose of defrauding his creditors, 
 the conveyance is void at law, and in some cases equity will 
 construe it to create a trust for the creditors. ^ And so if in 
 an arrangement and composition of creditors with the debtor, 
 one of them secretly obtains an extra advantage for execut- 
 ing the composition deed, he will be converted into a trustee 
 by reason of the fraud, and the agreement will be null and 
 void.^ Again, a transfer in fraud of a wife, it being intended 
 to prevent her from obtaining alimony, might raise a con- 
 structive trust in favor of the wife.* In this connection it 
 must be noted that on the same facts there is a decided 
 difference as to the manner in which equity will treat per- 
 sons standing in differing relations to those facts. In favor 
 of the person defrauded a trust will be raised by law, but in 
 favor of the fraudulent grantor none ; although if there is an 
 express trust in favor of the grantor, the trustee will not be 
 excused from performance by showing that the transaction 
 was a fraud on some third person.^ (a) 
 
 1 See § 171. 
 
 2 Loomis V. Lift, 16 Barb. 543; Jones v. Reeder, 22 Ind. 111. See 1 
 Story's Eq. Jur. §§ 350-381; Buck v. Voreis, 89 Ind. 116. 
 
 8 Chesterfield v. Janssen, 2 Ves. 156 ; 15 Ves. 52; Mann i\ Darlington, 
 15 Penn. St. 310 ; Case v. Gerrish, 15 Pick. 50; Ramsdell v. Edgarton, 8 
 Met. 227; Lothrop y. King, 8 Cash. 382; Partridge v. Messer, 14 Gray, 
 180; Kahn v. Gunherts, 9 Ind. 430; Spooner r. Whiston, 8 Moore, 580; 
 Mallalieu v. Hodgson, 16 Ad. & El. N. R. 689-715; Turner v. Hoole, 
 Dowl. & Ry. N. P. 27; Smith v. Cuff, 6 M. & S. 100 ; Horton v. Riley, 
 11 M. & W. 492; Alsager v. Spalding, 6 Scott, 204 ; Arnold, 181; 4 Bing. 
 N. C. 407; Leicester v. Rose, 4 East, 380; Howden v. Haight, 11 Ad. & 
 El. 1038 ; Fawcett v. Gee, 3 Anst. 910 ; Breck v. Cole, 4 Sandf. 83 ; 
 Knight V. Hunt, 5 Bing. 433; Bliss v. Matteson, 45 N. Y. 24. 
 
 4 Tyler r. Tyler, 25 Brad. 111. 333. 
 
 5 Ibid.; Fast v. McPherson, 98 111. 496. 
 
 (a) A resulting trust does not the original transaction to be 
 arise when the parties intended fraudulent, as in the case of a con- 
 308
 
 CHAP. VI.] CONVEYANCE BEFORE MARRIAGE. [§ 213, 
 
 § 213. If a man or woman on the point of marriage pri- 
 vately convey away his or her property for the purpose of 
 depriving the intended husband or wife of the legal rights 
 and benefits arising from such marriage, equity will avoid 
 such conveyance or compel the person taking it to hold the 
 property in trust, or subject to the rights of the defrauded 
 husband or wife.' (a) But such conveyance is not void at 
 law unless there is an actual fraud. ^ Nor will such convey- 
 ance be avoided, if made for a good consideration;^ or for a 
 
 ^ Hunt V. Mathews, 1 Vern. 408; England v. Downes, 2 Beav. 522; 
 Ball V. Montgomery, 2 Ves. Jr. 191 ; Strathmore v. Bowes, 2 Bro. Ch. 
 345; 2 Cox, 485 ; 1 Ves. Jr. 22 ; Goddard v. Snow, 1 Russ. 485 ; Tucker 
 V. Andrews, 13 Maine, 124 ; Waller v. Arniistead, 2 Leigh, 11 ; Logan v. 
 Simmons, 3 Ired. Eq. 487 ; Terry v. Hopkins, 1 Hill, Eq. 1 ; Duncan's 
 App., 43 Pa. St. 68; "Wrigley v. Swainson, 3 Ue G. & Sm.458; Manes v. 
 Durant, 2 Rich. Eq. 404; McAfee v. Ferguson, 9 Mon. 495; Linker v. 
 Smith, 4 Wash. 224; Ramsay v. Joyce, 1 McMull. Eq. 237; Williams 
 V. Carle, 2 Stockt. Ch. 543 ; Lewellin v. Cobbald, 1 Sm. & Gif . 370 ; 
 Cheshire v. Payne, 16 B. Mon. 618; Carleton v. Dorset, 2 Vern. 17; 2 
 Cox, 63 ; McDonnell i\ Hesilridge, 16 Beav. 340 ; Howard v. Hooker, 2 
 Ch. R. 81 ; St. George v. Wake, 1 M. & K. 622 ; Taylor v. Pugh, 1 Hare, 
 608; Ashton v. McDougall, 5 Beav. 56; Griggs v. Staples, 2 De G. & Sm. 
 572; Smith v. Smith, 2 Halst. Ch. 515; Petty v. Petty, 4 B. Mon. 215; 
 Belt V. Ferguson, 3 Grant, 289. 
 
 2 Richards v. Lewis, 11 C. B. 1035; Logan v. Simmons, 1 Dev. & Bat. 
 Law, 13. 
 
 >< De Mauville v. Crompton, 1 V. & B. 354 ; England v. Downes, 2 
 Beav. 522; Smith v. Smith, 2 Halst. Ch. 515; Tucker v. Andrews, 13 
 Me. 124; Manes v. Durant, 2 Rich. Eq. 404; Terry v. Hopkins, 1 Hill, 
 
 veyance to defraud creditors ; such a confidential adviser, like an at- 
 
 conveyance is void as to them, but torney at law, such an agreement 
 
 binding upon the grantor. Gilbert will be set aside and the propeity 
 
 V. Stockman, 81 Wis. 602; Heinz conveyed to defraud creditors will 
 
 V. White, 105 Ala. 670 ; Barber r. be restored to the client. DeCham- 
 
 Barber, 146 Ind. 390 ; Springfield brun v. Schermorhorn, 59 F. R. 504. 
 H. Ass'n V. Roll, 137 111. 205; (a) See supra, § 122, n. (o). 
 
 Moore v. Horsley, 156 111. 36 ; PoUey It is the husband's duty to have a 
 
 I'. Johnson, 52 Kansas, 478 ; In re provision in his favor, in a marriage 
 
 Camp, 10 N. Y. S. 141; Brown r. settlement, explained to the wife in 
 
 Brown, 06 Conn. 493 ; Snider c. the clearest terms, and with due ojv 
 
 Udell W. Co., 74 Miss. 353; Sell v. portunity for deliberation. Lovesy 
 
 West, 125 Mo. 621. But, as against v. Smith, 15 Ch. D. 055. 
 
 309
 
 § 213.1 CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 valuable consideration ; ^ or with the knowledge or concur- 
 rence of the other party, although an infant ; ^ and the party 
 alleging fraud must prove it to the satisfaction of the court. '^ 
 For the same reasons a conveyance by a husband during the 
 pendency of a divorce suit on the part of his wife, in order 
 to avoid the payment of alimony, will be held to be fraudu- 
 lent and void.* If an intended husband has no knowledge of 
 the particular property conveyed, and the negotiations for 
 the marriage have no reference to that particular property, 
 its conveyance is not fraudulent, unless it was actually in- 
 tended as a fraud upon him,^ and so there must be an intent 
 to defraud the individual who is afterwards married; for if a 
 deed is made to defraud another individual who is not mar- 
 ried, but a marriage afterwards takes place with a person, 
 not in contemplation at the time, there is no fraud. ^ If no 
 notice of the conveyance is shown to have been given, it will 
 be presumed that no notice was had;'^ and it is always a 
 question of fact upon the whole transaction whether the con- 
 veyance is fraudulent.^ If, however, the property is of that 
 
 Eq. 1 ; Hunt v. Mathews, 1 Vern. 408; King v. Cotton, 2 P. Wms. 674; 
 Mos. 259. 
 
 1 Blanchet v. Foster, 2 Ves. 264. But if the consideration is fraudu- 
 lently stated in the deed, it will make the conveyance fraudulent. Lewel- 
 lin V. Cobbald, 1 Sm. & Gif. 376. 
 
 2 St. George v. Wake, 1 M. & K. 610; McClure v. Miller, 1 Bail. Eq. 
 108 ; Knottman v. Peyton, 1 Speer's Eq. 46 ; Terry v. Hopkins, 1 Hill, Eq. 
 1; Cheshire v. Payne, 16 B. Mon. 618 j Fletcher v. Ashley, 6 Grat. 332; 
 Slocombe v. Glubb, 2 Bro Ch. 545. 
 
 8 St George v. Wake, 1 M. & K. 610; England v. Downes, 2 Beav. 
 522. 
 
 4 Blenkinsop v. Blenkinsop, 1 De G., M. & G. 495; Krupp v. Scholl, 
 10 Penn. St. 193. 
 
 s Thomas v. Williams, Mos. 177; DeManville v. Crompton, 1 V. & B. 
 354 ; St. George v. Wake, 1 M. &. K. 622 ; and see Goddard v. Snow, 1 
 Russ. 485. 
 
 6 Strathmore v. Bowes, 1 Ves. Jr. 22 ; 2 Bro. Ch. 345 ; 2 Cox, 28 ; 6 
 Bro. P. C. 427; 1 Lead. Gas. Eq. 325; England v. Downes, 2 Beav. 522 ; 
 Cheshire v. Payne, 16 B. Mon. 618 ; Wilson v. Daniel, 13 B. Mon. 351. 
 
 ' Cole y. O'Neill, 3 Md. 174 ; Wrigley v. Swainson, 3 De G. & Sm. 
 458. 
 
 8 Ibid. 
 310
 
 CHAP. VI.] ILLEGAL AND IMMORAL CONTRACTS. [§ 214 
 
 character that the husband could obtain no right over it liy 
 tlie marriage, the conveyance of it l>y the wife before mar- 
 riage cannot be set aside. ' In all autc-nuptial contracts there 
 must be the utnjost g(Jod faith between the jjarties, and a 
 grossly disproportionate settlement may be evidence of a 
 fraudulent concealment. ^ 
 
 § 214. There are certain purposes for which neither express 
 law nor public policy will allow parties to contract; thus, 
 the law will not permit contracts for the procuring of mar> 
 riagcs,'^ or of public ofiiccs,^ or of legislation,^ or of illicit 
 cohabitation.^ If, therefore, such contracts arc entered into, 
 equity will enjoin their performance." And the party creat- 
 ing the interest, although in pari delicto^ may api)ly for an 
 injunction. In such cases, the person applying must return 
 any benefit that he may have received.^ Such contracts are 
 equally void at law, and if the parties are in pari delicto^ the 
 law will leave them where it finds them. If one party has 
 
 ^ Ibid. Whether the deed on record is notice or not, is a question. 
 Cole V. O'Xeill, 3 Md. 174. 
 
 2 Kline's Est., 61 Penn. St. 122. 
 
 8 Drury v. Hook, 1 Vern. 412; Cole v. Gib.son, 1 Yes. 507; Deben- 
 ham V. Ox, id. 277 ; Smith r. Aykwell, 3 Atk. 5GG ; Smith r. Bruning, 2 
 Vern. 392; Williamson i'. Gihon, 2 Sch. & L. 357; Roberts r. lloberts, 
 3 P. Wms. 70. 
 
 * Ilartvvell v. Ilartwell, 4 Yes. 811; Morris v. IMcCulloch, Arab. 432; 
 2 Eden, 1(I0 ; Writhingham v. Burgoyne, 2 Anst. QUO ; Harrington r. Du- 
 chattel, 1 Bro. Ch. 124. 
 
 6 Robinson v. Cox, 9 Mod. 2G3 ; Walker v. Perkins, 3 Burr. 15GS ; 1 
 Bla. 517 ; Rex v. Inhabitants of Northwingfield, 1 B. & Ad. 912 ; Wine- 
 brinner r. Weiseger, 3 Monr. 35; Travinger r. McBurney, 5 Cow. 2.53; 
 Cusack V. White, 3 Const. Ct. R. 284; Fuller v. Dame, 18 Pick. 472; 
 Pingry v. Washburn, 1 Aiken, 2G4; Grolick v. Ward, 5 Ilalst. 87 ; Wood 
 r. McCann, 6 Dana, 3G6; Clippinger v. Hipbaugh. 3 W. & S. 315; Harris 
 r. Roop, 10 Barb. 489; Sedgwick v. Stanton, 4 Kern. 289; Froat v. Bel- 
 mont, 6 Allen, 152. 
 
 6 Marshall v. Baltimore & Ohio Railw., 16 How. 153. 
 
 ^ Robinson r. Gee, 1 Yes. 251; Gray v. Mathias, 5 Yes. 2S6; Franco 
 V. Bolton, 3 Yes. 370. 
 
 8 St. John V. St. John, 11 Yes. 535 ; Reynell v. Sprye, 1 De G., M. & G. 
 660. 
 
 311
 
 § 215.] CONSTRUCTIVE TliUSTS. [CHAP. VI. 
 
 advanced money upon an immoral or illegal contract, the 
 law will give him no aid to recover it back. But equity will 
 sometimes fasten a trust upon the conscience of the party 
 who has received money or property under such contracts, 
 and compel him to repay or reconvey it,^ especially if the 
 illegal purpose fails. ^ 
 
 § 215, If at a sale of an estate of a debtor upon execution, 
 any one announces, for the purpose of preventing competi- 
 tion, that he is bidding or purchasing for the debtor ;3 or if, 
 upon the sale of the property of a deceased person, a bidder 
 announces that he is purchasing for the benefit of children or 
 heirs, or if at a mortgagee's sale a person announces that he 
 is purchasing for the mortgagor, and thus prevents competi- 
 tion, the purchaser will be held to be a trustee for the benefit 
 of the parties interested in the property.^ So if any one 
 professing to act for another purchases for himself, he will 
 be held as a trustee.^ But in such cases there must be 
 some proof of fraud and deceit practised by the purchaser ; 
 
 1 Smith r. Bruning, 2 Vern. 302; Morris v. McCulloch, Amb. 432; 
 Ownes V. Ownes, 23 N. J. Eq. 60. 
 
 2 Symes v. Hughes, L. R. 9 Eq. 475. 
 
 3 Kiuard (■. Hiers, 2 Rich. Eq. 423 ; Lloyd v. Currin, 3 Humph. 462 ; 
 Seichrist's App., 66 Penn. St. 237; Miller v. Antle, 2 Bush, 407 ; Bran- 
 nin V. Brannin, 18 N. J. Ch. 282 ; Crutcher v. Hord, 4 Bush, 360; Roach 
 r. Hudson, 8 Bush, 410; Brown v. Lynch, 1 Paige, 147; Tankard v. 
 Tankard, 84 N. C. 286. 
 
 ^ Brown v. Dysinger, 1 Rawle, 408; Kellum v. Smith, 9 Casey, 158; 
 Sheriff v. Neal, 6 Watts, 531 ; Sharp i'. Long, 4 Casey, 443 ; IMorey v. 
 Herrick, 6 Harris, 123; Williard y. Williard, 6 P. F. Smith, 119; Robert- 
 son V. Robertson, 9 Watts, 32; Plumer v. Reed, 2 Wright, 46; Beegle v. 
 Wentz, 73 Penn. St. 369 ; Kisler v. Kisler, 2 Watts, 323 ; McCaskey v. 
 Graff, 11 Harris, 321 ; Abbey v. Dewey, 1 Casey, 114; McRarey v. Huff, 
 32 Ga. 681; Ryan r. Dox, 34 N. Y. 307; JMackay v. Martin, 26 Tex. 
 225; Dennis V. McCagg, 32 111. 429; Cook v. Cook, 69 Penn. St. 443; 
 Jenckes v. Cook, 9 R. I. 520. So, as to a party holding bonajide a clahn 
 upon the property, whether valid or not. Wolford v. Hemington, 86 
 Penn. St. 39. 
 
 5 Rothwelli^. Dawes, 2 Black (U. S.), 613; O'Xeil v. Hamilton, 44 
 Penn. St. 18; Coe r. Bradley, 49 Maine, 388; Baylis v. Baxter, 22 Col. 
 175; Adams v. Bradley, 12 Mich. 346; Drennen v. Walker, 21 Ark. 539. 
 312
 
 CHAP. VI.] CONVEYANCES UPON SECRET TRUSTS. [§ 217. 
 
 the mere breach of a parol agreement will not create a con- 
 structive trust in such cases;' and if the conduct of the j)ur- 
 chaser is not fraudulent and jiroduces no injury, a trust is 
 not raised.^ If the parties for whom the jjurchaser pretends 
 to buy have no interest in the property, they cannot estab- 
 lish a trust. ^ 
 
 § 21G. Again, if a testator make a devise, or a grantor a 
 conveyance, upon a secret trust in fraud of the law, or for a 
 purpose forbidden by law, or contrary to public policy, those 
 interested may bring a bill alleging the secret trust, and the 
 fraud upon the law, and the persons to whom the devise or 
 conveyance was made must answer, notwithstanding the 
 statute of frauds.^ (a) If such fraudulent trust appear by the 
 answer,*^ or by any clear and explicit proof in opposition to 
 the answer, "^ a trust will be declared and enforced in favor of 
 those interested in the estate, or in the event of the failure of 
 the illegal trust. In all cases of actual fraud parol evidence 
 is admissible, otherwise a fraud put in writing would always 
 escape.' 
 
 § 217. Another large class of constructive trusts arises 
 from purchases or conveyances from trustees, or other per- 
 sons holding a fiduciary relation to property. It is a uni- 
 
 1 Minott V. Mitchell, 30 Ind. 288. 
 
 2 Taylor v. Hoardinaii, 24 Mich. 287. 
 
 8 Rogers v. Simmons, 58 111. 76 ; Walter v. Klock, 55 111. 82. 
 
 * Muckleston v. Brown, 6 Ves. 52; Podmore v. Gunning, 7 Sim. 644; 
 Chamberlain v. Agar, 2 V. & B. 259; Strickland v. Aldridge, 9 Ves. 513; 
 Edwards v. Pike, 1 Eden, 267 ; Walgrave v. Tebbs, 2 K. & J. 313 ; Rob- 
 inson V. King, 6 Ga. 5.50. 
 
 6 Cottingham v. Fletcher, 2 Atk. 155; Bozon v. Statham. 1 Eden, 
 508; Bishop v. Talbot, cited 6 Ves. 60; Adlington v. Cann, 3 Atk. 141 ; 
 Paine o. Hall, 18 Ves. 473 ; 1 Eden. 515, n. (a). 
 
 « How V. Camp, Walk. Ch. 427; Strickland v. Aldridge, 9 Ves. 520; 
 Pring V. Pring, 2 Vern. 99. 
 
 •' Ibid. 
 
 (a) See Yardley v. Sibbs, 84 F. R. 531 ; Brown v. Bradford, 103 Iowa, 
 378; supra, § 212, note (a). 
 
 313
 
 § 217.] CONSTRUCTIVE TEUSTS. [CHAP. VI. 
 
 versal rule, that if a man purchases property of a trustee, 
 with notice of the trust, he shall be charged with the same 
 trust, in respect to the property, as the trustee from whom 
 he purchased.^ And even if he pays a valuable considera- 
 tion, with notice of the equitable rights of a third person, he 
 shall hold the property subject to the equitable interests of 
 such person. 2 Of course, a mere volunteer, or person who 
 takes the property without paying a valuable consideration, 
 will hold it charged with all the trusts to which it is sub- 
 ject, whether he have iiotice or not ; for in such case no wrong 
 or pecuniary loss can fall upon him, in compelling him to 
 execute the trust to which the property that came to him 
 without consideration was subject. Such purchases from 
 trustees, whether for value or not, are fraudulent, and equity 
 will follow the property and fasten the original trust upon it 
 for the security of the cestui que trust, or other person hold- 
 
 1 Le Neve v. Le Neve, Amb. 436; 3 Atk. 646; 1 Ves. 64; 2 Lead. Cas. 
 Eq. 23 and notes; Merry v. Abney, 1 Ch. Cas. 38; Potter v. Sanders, 6 
 Hare, 1 ; Kennedy v. Daly, 1 Sch. & L. 355 ; Crofton v. Ormsby, 2 Sch. & 
 L. 583 ; Ferras v. Cherry, 2 Vern. 384 ; Daniels v. Davidson, 16 Ves. 249; 
 Brooke v. Bulkeley, 2 Ves. 498 ; Jennings v. Moore, 2 Vern. 609 ; 2 Bro. 
 P. C. 278; Birch v. EUames, 2 Anst. 427; Mackreth v. Symmons, 19 
 Ves. 349; Grant v. Mills, 2 V. & B. 306; Saunders v. Dehew, 2 Vern. 
 271 ; Mansell v. Mansell, 2 P. Wms. 681 ; Wigg v. Wigg, 1 Atk. 382 ; 
 Dunbar v. Tredennick, 2 B, & B. 319 ; Pawlett v. kit. Gen. Hardr. 465 ; 
 Burgess v. Wheate, 1 Eden, 195 ; Adair v. Shaw, 1 Sch. & L. 262; Mead 
 V. Orrery, 3 Atk. 238 ; Bovey v. Smith, 1 Vern. 149 ; Phayre r. Peree, 3 
 Dow, 129 ; Wormley v. Wormley, 8 Wheat. 421 ; Oliver v. Piatt, 3 How. 
 333 ; Caldwell v. Carrington, 9 Peters, 86 ; Wright v. Dame, 22 Pick. 55; 
 Clarke v. Hackerthorn, 3 Yeates, 269 ; Peebles v. Reading, 8 S. & R. 
 495; Reed I'. Dickey, 2 Watts, 495 ; Hood v. Fannestock, 1 Barr. 470; 
 Wilkins I'. Anderson, 1 Jones, 399; Denn i'. McKnight, 6 Ilalst. 385; 
 Murray v. Ballou, 1 Johns. Ch. 566 ; Bailey v. Wilson, 1 Dev. & Bat. 
 182 ; Massey v. Mcllwaine, 2 Hill, Eq. 426 ; Benzien v. Lenoir, 1 Car. 
 L. R. 504 ; Pugh v. Bell, 1 J. J. Marsh. 403 ; Liggett v. Wall, 2 A. K. 
 Marsh. 149; Truesdell v. Calloway, 6 Miss. 605; Suydam v. Martin, 
 Wright, 384 ; Winged v. Lefebury, 1 Eq. Ca. Abr. 32 ; Taylor v. 
 Stibbert, 2 Ves. Jr. 437 ; Case v. James, 29 Beav. 512 ; Cary v. Eyre, 
 1 De G., J. & S. 149; Jones v. Shaddock, 41 Ala. 362; Ryan v. Doyle, 
 31 Iowa, 53 ; Smith v. Walter, 49 Mo. 250 j James v. Cowing, 17 Hun 
 (N. Y.), 256. 
 
 2 Ibid. 
 
 314
 
 CHAP. VI.] PURCHASES FROM TRUSTEES. [§ 218. 
 
 ing an equitable interest.^ The rule applies not only to 
 express trusts, or those expressly declared by written instru- 
 ments, but it applies to constructive trusts, or those trusts 
 that arise from fraud. Thus, if a party procures a convey- 
 ance of property from another by fraud, he shall be held to 
 be a constructive trustee ; and if he sells such property to a 
 third person who has full knowledge or notice of the fraud, 
 Buch third jjcrson will be equally held as a trustee.^ After 
 a purchase is once made from a trustee with notice of the 
 trust, the person taking the title cannot bar the interest of 
 the cestui que trust by buying in other interests, or by levy- 
 ing a fine or suffering a recovery, obtaining a judgment, or 
 by procuring the assignment to himself of outstanding mort- 
 gages or terms. ^ Having once taken with notice of the trust, 
 he is a trustee in law, and a trustee cannot defeat the inter- 
 ests of his cestui que trust; on the contrary, all the interest 
 that the trustee, or constructive trustee, shall thus buy in, 
 will inure to the benefit of the title for the cestui que trust.'^ 
 
 § 218. Of course, the opposite proposition is also true, 
 that a purchaser for a valuable consideration without actual 
 or constructive notice of the trust, holds the property dis- 
 charged of the interest of the cestui que trust. It is thus 
 stated on great authority : " A purchaser, bona fide without 
 notice of any defect in his title at the time he made the pur- 
 chase, may buy in a statute or mortgage, or any other incum- 
 brance, and if he can defend himself at law by any such 
 incumbrance bought in, his adversary shall never be aided 
 in a court of equity for setting aside such incumbrance, for 
 equity will not disarm a purchaser^ hut assist him ; and pre- 
 cedents of this nature are very ancient and numerous; viz., 
 where the court hath refused to give any assistance against a 
 
 1 Ibid.; Lyford v. Thurston, 16 N. li. 399. 
 
 * Pye r. George, 1 P. Wnis. 128 ; Saunders r. Dehew, 2 Vern. 271 ; 
 Mansell v. :\Iansell, 2 P. Wms. 681 ; Smith r. Bowen, 35 N. Y. 83 ; Lyons 
 V. Bodenhamer, 7 Kans. 455 ; Sadler's Appeal, 87 Penn. St. 154. 
 
 8 Moloney r. Kernan, 2 Dr. & W. 31 ; Brook /•. Bulkeley, 2 Ves. 498. 
 
 * Bovey i\ Smith, 1 Vern. 145 ; Kennedy c. Daly, 1 Sch. & L. 37. 
 
 315
 
 § 218.] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 purchaser, either to an heir, or to a widow, or to the father- 
 less, or to creditors, or even to one purchaser against an- 
 other. " And it may be added that nothing is clearer than 
 that a purchaser for valuable consideration without notice 
 of a prior equitable right, obtaining the legal estate at the 
 time of his purchase, is entitled to priority in equity as 
 well as at law, according to the well-known maxim that 
 where equities are equal the law shall prevail.^ But while a 
 purchaser for value without notice may lay hold upon any 
 plank to save himself, he cannot, after notice of the trust, 
 take any conveyances from the trustee of outstanding legal 
 interests; for that is a breach of the trust, and he cannot 
 
 1 Bassett v. Nosworthy, Ca. t. Finch, 102; 2 Lead. Cas. Eq. 1 & notes 
 Jerrard v. Saunders, 2 Ves. Jr. 457 ; Goleborn v. Alcock, 2 Sim 552 
 Sanders v. Deligne, Freem. 123 ; Fagg's Case, 1 Vern. 52 ; 1 Ch. Cas. 68 
 Harcourt v. Knowel, 2 Vern. 159 ; Siddou ;;. Charnells, Bunb. 298 ; Jones 
 r. Powles, 3 M. & K. 581 ; Willoughby v. Willoughby, 1 T. R. 763 ; Blake 
 V. Hungerford, Pr. Ch. 158 ; Charlton v. Low, 3 P. Wms. 328 ; Ex parte 
 Knott, 15 Ves. 609 ; Shine v. Gough, 1 B. & B. 436 ; Bowen v. Evans, 1 Jon. 
 & La. 264; Boone v. Chiles, 10 Pet. 177 ; Watson v. Le Roy, 6 Barb. 485; 
 Walwyn v. Lee, 9 Ves. 24; Varick v. Briggs, 6 Paige, 325; Deraarest n. 
 Wynkoop, 3 Johns. Ch. 147; Dan v. McKnight, 6 Halst. 385; Howell v. 
 Ashmore, 1 Stockt. 82 ; Heilner v. Imbrie, 6 S. & R. 401 ; Mundine v. 
 Pitts, 14 Ala. 84 ; Tomkins v. Powell, 6 Leigh, 576 ; Woodruff v. Cook, 1 
 Gill & J. 270 ; Whittick v. Kane, id. 202 ; High v. Batte, 10 Yerg. 335 ; 
 Jones 1-. ZoUicoffer, 2 Taylor, 214 ; Owings v. Mason, 2 A. K. Marsh. 384 ; 
 Halstead v. Bank of Kentucky, 4 J. J. Marsh. 554 ; Blight v. Banks, 6 
 Mon. 198 ; Hughson v. Mandeville, 4 Des. 87 ; Goodtitle v. Cummings, 
 8 Blackf. 179 ; Maywood r. Lubcock, 1 Bail. Eq. 382 ; Brown i-. Budd, 
 2 Cart. 442; Fletcher v. Peck, 6 Cranch, 36 ; Alexander v. Pendleton, 8 
 Cranch, 462 ; Vattier v. Hinds, 7 Pet. 252 ; Dana v. Newhall, 13 Mass. 
 498; Connecticut u, Bradish, 14 Mass. 296; Trull v. Bigelow, 16 Mass. 
 406 ; Boynton v. Rees, 8 Pick. 29 ; Gallatian v. Erwin, Hopk. 48 ; 8 Cow. 
 36 ; Bumpus v. Platner, 1 Johns. Ch. 213; Griffith v. Griffith, 9 Paige, 315 ; 
 Mott i\ Clark, 9 Barr, 399 ; Brackett v. Miller, 4 W. & S. 102 ; Filby v. 
 ]\Iiller, 1 Casey, 264; Rutgers v. Kingsland, 3 Halst. Ch. 178, 658; 
 Holmes v. Stout, 3 Green, Ch. 492 ; City Council v. Paige, Spear, Ch. 
 159; Lacy v. Wilson, 4 Munf. 412; Curtis r. Lanier, 6 id. 42; Dixon v. 
 Caldwell, 15 Ohio St. 412 ; Dillaye v. Commercial Bank, 51 N. Y. 345 ; 
 Carter v. Carter, 3 K. & J. 639 ; Sugd. V. & P. 470 ; Colesbury v. Dart, 
 58 Ala. 573 ; Hamilton i\ Mound City Mut. Life Lis. Co., 3 Tenn. Ch. 
 124. 
 
 316
 
 CHAP. VI.] SAFEGUAUDS FOR PURCHASES WITHOUT NOTICE. [§ 219. 
 
 commit a breach of the trust to protect himself.^ JJut a pur- 
 chase of an equitable interest only, although for a valuable 
 consideration and without notice, cannot prevail against a 
 legal title. In law the legal title must always prevail, and 
 in equity the legal title will prevail if the equities are 
 equal. ^ 
 
 § 219. This protection of a hona fide purchaser for value 
 without notice is clear and certain, but it is hedged about 
 with great care. It is said to he a shield to protect, and not 
 a sword to attack. It is surrounded with restrictions, so that 
 it may not become a cloak for fraud. The defendant in a 
 suit in equity must clearly and unequivocally swear in his 
 answer that he is a purchaser for value without notice,^ and 
 he must set forth all the particulars of the purchase, and the 
 title or pretended title of the person from whom he pur- 
 chased.* He must show an actual conveyance and not 
 merely an agreement for a conveyance;^ and it must be 
 shown that the consideration-money named in the deed was 
 paid in good faith. It is not enough that the consideration 
 was secured to be paid ; nor is a recital of payment in the 
 
 1 Saunders r. Dehew, 2 Vern. 271 ; Freem. 123 ; Allen v. Knight, 5 
 Hare, 272 ; Terrett v. Crombie, 6 Lans. 82. 
 
 ^ Snelgrove v. Snelgrove, 4 Des. 274 ; Daniel v. HoUingshead, 16 Ga. 
 196 ; Larrow v. Beam, 10 Ohio, 148 ; Jones ;•. Zollicoffer, 2 Taylor, 214 ; 
 Brown v. Wood, 6 Rich. Eq. 155; Blake v. Heyward, 1 Bail. Eq. 208; 
 Shirras v. Caig. 7 Cranch, 48; Jones v. Jones, 8 Sim. 633; Pensonneau v. 
 Bleakley, 14 111. 15; Boone r. Chiles. 10 Tet. 177; Kramer v. Arthurs, 
 7Barr, 165; Wailps r. Cooper, 24 IMiss. 208; Sergeant r. Ingersoll, 7 
 Barr, 340; 3 Harris. 343; Flagg r. Mann, 2 Sumn. 486, 556 ; Cottrell r. 
 Hughes, 15 C. B. 532; Vattier v. Ilinde, 7 Pet. 252; Parsons v. Jury, 1 
 Yerg. 206; Gallion ?•. INIcCaslin, 1 Blackf. 01 ; IMarles r. Cooper, 22 Miss. 
 208. 
 
 » Sugd. V. & P. 507; Marshall r. Frank, 8 Pr. Ch. 480; 1 Anst. 14; 
 Blacket v. Langlands, Sel. Cas. Ch. 51 ; Gilb. 58. 
 
 ^ Walwvn V. Lee, 9 Ves. Jr. 26; Story r. Winsor, 3 P. Wms. 279; 
 Head v. Egerton, 1 Vern. 246 ; Trevanion r. Mor.se, 3 Ves. 32, 226; Amb. 
 421 ; Jackson v. Rowe, 4 Russ. 514; Lanesborough v. Kilmaine, 2 Moll. 
 403; PTughes v. Garth, Amb. 421 ; Page v. Lever, 2 Ves. Jr. 450 ; Dobson 
 «. Leadbeater, 13 Ves. 230. 
 
 6 Head v. Egerton, 1 P. Wms. 281; Brandlyn v. Ord, 1 Atk. 571. 
 
 317
 
 § 220.] CONSTRUCTIVE TRUSTS. [CHAP. VL 
 
 deed sufficient: there must be an actual payment.' Then he 
 must also make an explicit denial of notice of the title which 
 is attempted to be set up. A denial of knowledge of the 
 particular person who might assert such title is not suffi- 
 cient ;2 notice must be positively and affirmatively denied, 
 and not evasively or inferentially.^ If particular instances 
 or circumstances of notice or of fraud are alleged, there 
 must be clear, special, and particular denials of each and 
 every circumstance.* These stringent rules are necessary 
 for the protection of the equitable interests of one person, 
 where the legal title is in the hands of another.^ 
 
 § 220. These leading propositions are simple and plain 
 enough, but difficulties frequently arise as to what is a valu- 
 able consideration, and whether a purchaser had notice of 
 the equitable estate, and when and how he obtained it. It 
 is well established that a conveyance, to be good against the 
 equitable interest of a cestui que trust, must be for a valuable 
 consideration, and that a conveyance for a good considera- 
 tion, as for love and affection, is not sufficient.^ But if the 
 consideration is valuable, it need not be adequate : mere in- 
 
 1 MiUard's Case, Freem. 43 ; WagstafE v. Read, 2 Ch. Cas. 156; More v. 
 Mayhow, 1 id. 34; 2 Freem. 175; Day v. Arundel, Hard. 510; Harding- 
 ham V. Nichols, 3 Atk. 304 ; Maitland r. Wilson, id. 814 ; Moloney v. 
 Keruan, 2 Dr. & War. 31. But see Parker v. Crittenden, 37 Conn. 148. 
 
 2 Kelsal V. Bennett, 1 Atk. 522 ; Brompton v. Barker, cited 2 Vern. 159, 
 is not law. 
 
 3 3 P. Wms. 244, n. (f) ; Bran r. Marlborough, 2 P. Wms. 492 (6 Res.) ; 
 Hughes V. Garner, 2 Y. & Col. Exch. 328. 
 
 4 Pennington v. Beechey, 2 S. & S. 282 ; Anon. 2 Ch. Cas. 161 ; Price 
 V. Price, 1 Vern. 185; Hardman v. Ellames, 5 Sim. 650; 2 M. & K. 732. 
 
 fi Alexander v. Pendleton, 8 Cranch, 462; Hunter v. Simrall, 5 Litt. 
 62 ; Boone v. Chiles, 10 Pet. 177 ; Bush i: Bush, 3 Strob. Eq. 131 ; Blight 
 V. Bank, 6 Mon. 698; Halstead v. Bank of Kentucky, 4 J. J. Marsh. 5.54; 
 ]\Ioore V. Clay, 7 Ala. 142; Pillow v. Shannon, 3 Yerg. 308; Nante v. 
 ]\IcPherson, 7 Munt. 599 ; Dillard v. Crocker, 1 Spear, Eq. 20 ; Vattier v. 
 Hinde, 7 Pet. 252; Jackson v. Rowe, 2 S. & S. 472; Jones v. Powles, 3 
 M. & K. 581. 
 
 • Upshaw V. Hargrove, 6 Sm. & M. 292 ; Frost v. Beekman, 1 Johns. 
 Cb. 288; Patten v. Moore, 32 N. H. 382; Boone v. Baines, 23 Miss. 136; 
 Everts v. Agnes, 4 Wis. 343; Swan r. Ligan, 1 McCord, Ch. 232. 
 318
 
 CHAP. VI.] NOTICE. [§ 221. 
 
 adequacy of consideration will not defeat a purchase for a 
 valuable consideration without notice ; but gross inadequacy 
 of a valuable consideration would be evidence affecting the 
 good faith of the transaction.' Marriage is a valuable con- 
 sideration for a conveyance; but if a conveyance after mar- 
 riage is made in pursuance of an agreement before marriage, 
 it must be made clearly to appear.^ The general definition 
 of a valuable consideration embraces not only some valuable 
 thing or property given or transferred to another, but also 
 some loss of property or right, or the forbearing of some 
 legal right or remedy.^ 
 
 § 221. In order that one may claim protection as a bona 
 fide purchaser, the money must have been actually paid and 
 the conveyance taken before notice is received of the trust. 
 If the money is secured, but not paid, notice of the trust 
 will convert the purchaser into a trustee,* and so if the 
 money is paid, but the conveyance is not executed, the 
 weight of authority is that notice of the trust will destroy 
 
 1 More V. Mayhow, 1 Cli. Cas. 34; Wagstaff v. Read, 2 Ch. Cas. 
 156 ; Bullock v. Sadlier, Amb. 7G4 ; Mildraay v. Mildmay, cited Amb. 
 767. 
 
 2 Harding v. Hardrett, t. Finch, 9; Lord Keeper v. "Wyld, 1 Vern. 139. 
 8 It is impossible to pursue this subject in all its details and distinctions 
 
 in a work of this character without exceeding all reasonable limits. The 
 cases will be found mo.st industriously collected in the notes to Bassett v. 
 Nosworthy, 2 Lead. Cas. Eq. 103-109, and the distinctions and qualifica- 
 tions are fully discussed. 
 
 4 Tourville c. Naish, 3 P. Wms. 387; Story i'. Winsor, 2 Atk. G30 ; 
 ^lore V. Mayhow, 1 Ch. Cas. 34; Jones v. Stanley, 2 Eq. Cas. Ab. 685; 
 High r. Batte, 10 Yerg. 555; Christie r. Bishop, 1 Barb. Ch. 105; Murray 
 V. Ballou, 1 Johns. Ch. 506 ; Jackson v. Cadwell, 1 Cow. 622 ; Jewett v. 
 Palmer, 7 Cow. 65, 265; Heatley r. Finster, 2 Johns. Ch. 19; Harris v. 
 Norton, 16 Barb. 264 ; Patten r. Moore, 32 N. II. 382 ; I\IcBee r. Loftes, 
 1 Strob. Eq. 90; Hunter v. Simrall, 5 Litt. 62; Palmer r. William.s. 24 
 Mich. 333; Blanchard v. Tyler, 12 Mich. 339; Stone v. Welling, 14 Mich. 
 514; Dixon v. Hill, 5 Mich. 404; Warner r. Whittaker, 6 Mich. 133; 
 Thomas v. Stone, Walk. Ch. 117 ; Lewis v. Phillips, 17 Ind. 108; Rhodes 
 V. Green, 36 Ind. 10; Dugan v. Vattier, 3 Biackf. 245; Perkinson c. 
 Hanna, 7 Biackf. 400. But see Parker v. Crittenden, 37 Conn. 148 ; 2 
 Dart, V. & P. 760. 
 
 319
 
 § 222.] CONSTRUCTIVE TRUSTS. [CIIAP. VI. 
 
 the protection of the purchaser.^ It is held that the money 
 must be wholly paid before notice.^ This rule proceeds upon 
 the ground, that, as the purchaser is taking the transfer of a 
 title that defeats the equitable right of a third person, he 
 shall be held to take such title subject to all the equities 
 that attach to it at the time it passes. If, therefore, he pays 
 no money at the time the title passes, he has no equity to set 
 up against the equity of a third person, and if he has notice 
 before he pays the money, he pays in his own wrong. And 
 so, if he has paid his money, but has not yet taken the title 
 when he receives notice, he takes the title subject to all the 
 equities that attach to it when the conveyance is actually 
 made to him, as he then has a right to refuse the conveyance 
 and to demand back his money. ^ In Pennsylvania, however, 
 it is established that part-payment of the purchase-money 
 before notice will give the purchaser an equity pro tanto.^ 
 So, if a purchaser without notice make improvements on the 
 land, not having paid the purchase-money in full, he will 
 have an equitable lien on the land for the amount of his 
 expenditures, although he has no defence to a bill to enforce 
 the rights of the cestui que trust. ^ This is in analogy to the 
 statutes that give a defendant in a real action a claim for 
 improvements upon an estate, which he has made in igno- 
 rance of the title against him. 
 
 § 222. The notice of the trust may be either to the pur- 
 chaser himself, or to his agent, counsel, or attorney. The 
 
 1 Wigg V. Wigg, 1 Atk. 384 ; 2 Sugd. V. & P. 27i. 
 
 2 Wormley v. Wormley, 8 Wheat. 421; Wood v. Mann, 1 Sumn. 506. 
 
 8 Warner v. Winslow, 1 Sandf. Ch. 430 ; Yattier v. Hinde, 7 Pet. 252; 
 Bush V. Bush, 3 Strob. Eq. 131; Kyle r. Tait, 6 Grat. 44; Doswell r. 
 Buchanan, 3 Leigh, 362; Dillard i'. Crocker, 1 Spear, Eq. 20; Duncan r. 
 Johnson, 2 Eng. 190; Cook v. Bronaugh, 8 Eng. 190; Frost r. Beekman, 
 1 Johns. Ch. 288 ; Cole v. Scott, 2 Wash. 141 ; Abell v. Howe, 43 Vt. 403. 
 
 4 Youst V. Martin, 3 Serg. & R. 423; Lewis v. Bradford, 10 Watts, 67; 
 Bellas V. McCarthy, 10 Watts, 13; Juvenal v. Jackson, 2 Harris, 519; 
 Uhrich v. Beck, 1 Harris, 631 ; 4 Harris, 499; Paul v. Fulton, 25 Mo. 156. 
 
 ^ Boggs V. Yarner, Watts & S. 469; Farmers' Loan Co. v. Maltby, 
 8 Paige, 563; Frost v. Beekman, 1 Johns. Ch. 288; Doswell v. Buchanan, 
 3 Leigh, 361 ; Flagg v. Mann, 2 Sumn. 486; Everts v. Agues, 4 Wis. 343. 
 320
 
 ciiAr. VI.] NOTICE. [§ 222. 
 
 general rule is that notice to an agent is notice to his prin- 
 cipal.' The notice, if to an agent, must be to an agent for 
 the purpose of the purchase, and the notice must be to liim 
 while engaged in the transaction,^ for the reason that notice 
 to agents generally, without reference to the particular busi- 
 ness in hand, is not binding upon the principal." Notice to 
 a husband is not notice to a wife, unless he is her agent, and 
 is engaged ujjon the business when he receives the notice.^ 
 Upon the same principle, knowledge by an executor before 
 the death of his testator is not notice to him after his ap- 
 pointment as executor.^ It has been held in some cases, 
 that the notice to the principal, to convert him into a trustee, 
 must be given to him during the progress of the transaction, 
 as he might have known the facts long before and forgotten 
 them.^ If the first purchaser from the trustee take the 
 property, bona fide for value and without notice, all pur- 
 
 1 Hovey v. Blanchard, 13 N. H. 145; Aster i-. Wells, 4 Wheat. 466; 
 Bank of U. S. r. Davis, 2 Hill, 451; Griffith v. Griffith, 9 Paige, 315 ; 
 Jackson v. Winslow, 9 Cow. 13 ; Jackson v. Sharp, 9 Johns. 1G3 ; Jackson 
 V. Leek, 19 Wend. 339; Westerwelt v. HofF, 2 Sandf. 98; Barnes v. 
 LIcChristie, 3 Penn. 67; Blair v. Owles, 1 Munf. 38; Brotherton v. Ilutt, 
 
 2 Vern. 574 ; Newstead v. Searles, 1 Atk. 265 ; Le Neve v. Le Neve, 3 Atk. 
 646 ; 1 Ves. 64 ; 2 Lead. Cas. Eq. 165, notes ; Tunstall v. Trappes, 3 Sim. 
 301 ; Maddo.x r. Maddox, 1 Ves. 61 ; Ashley v. Bailley, 2 Ves. 368 ; Bracken 
 V. ]\Iiller, 4 Watts & S. 108; Espin r. Pemberton, 3 De G. & J. 547. 
 
 2 Howard Ins. Co. v. Halsey, 4 Seld. 271 ; Bracken v. INI iller, 4 Watts 
 & S. 102 ; Bank of U. S. v. Davis, 2 Hill, 451 ; Hood v. Fahnestock, 8 
 Watts, 489 ; Winchester r. Baltimore R. R. Co., 4 Md. 231 ; Preston r. 
 Tubbin, 1 Vern. 286; Mountford v. Scott, 3 :\Iadd. 34; Warwick r. War- 
 wick, 3 Atk. 291 ; Ashley r. Bailley, 2 Ves. 368 ; Worsley v. Scarborough, 
 
 3 Atk. 392 ; Tylee v. Webb, 6 Beav. 552; 14 Beav. 14 ; Finch v. Shaw, 19 
 Beav. 500 ; 5 H. L. Cas. 905 ; Fuller v. Bennett, 2 Hare, 394. But see 
 Abell r. Howe, 43 Vt. 403. 
 
 « Ibid. ; U. 8. Insurance Co. r. Schriver, 3 Md. Ch. 381; Fulton Bank 
 r. New York Coal Co., 4 Paige, 127; Bank i\ Payne, 25 Conn. 414 ; North 
 River Bank v. Aymar, 3 Hill, 362 ; Henry v. Morgan, 2 Beun. 497 ; Ross 
 f. Horton, 2 Cuslunan, 591. 
 
 * Snyder v. Sponable, 1 Hill, 56; 77 Hill, 427. 
 
 8 Gold I'. Death, Cro. Jac. 381 ; Hob. 92. 
 
 6 Hamilton v. Royse, 2 Sch. & Lef. 377; 2 Sugd. V. & P. 277; Henry 
 V. iMorgan, 3 Biun. 497 ; Boggs v. Varner, 6 Watts & S. 469 ; Bracken v. 
 Miller, 4 Watts & S. 111. 
 
 VOL. I.— 21 321
 
 § 223.] CONSTEUCTIVE TRUSTS. [CHAP. VI. 
 
 chasers from him will take the propertj' discharged of the 
 equitable claims, although they have notice of them at the 
 time they purchase of the first purchaser, and such notice to 
 them cannot convert them into trustees.* But if the prop- 
 erty comes back into the hands of the original trustee, or 
 into the hands of any one affected with the guilt of the origi- 
 nal sale, he will be a trustee for the defrauded party, al- 
 though the property may have passed through several innocent 
 hands. 2 (a) 
 
 § 223. Notice to the purchaser may be either actual or 
 constructive. Actual notice is a knowledge of the facts of 
 the trust brought home to the purchaser, or a knowledge of 
 such facts as should lead him to a knowledge of the actual 
 facts of the case.^ Constructive notice is a legal presump- 
 tion of notice unless controlled, and in most cases it is not 
 susceptible of rebuttal, even by evidence that in fact there 
 was no actual knowledge.* (l) Thus, by statutes of the 
 
 1 Harrison r. Forth, Pr. Ch. 51 ; Sweet v. Southcote, 2 Bro. Ch. 66 ; 
 Brandlyn v. Ord, 1 Atk. 571; Lowther v. Charlton, 2 Atk. 242 ; Lacy v. 
 Wilson, 4 Munf. 313 ; Fletcher v. Feck, 6 Cranch, 87; Boone v. Chiles, 
 10 Pet. 187; Truluck v. Peoples, 3 Kelly, 446 ; Griffith v. Griffith, 9 Paige, 
 315; Boynton v. Reese, 8 Pick. 329; Mott w. Clarke, 9 Barr, 399; Trull 
 V. Bigelow, 16 Mass. 406; Parker v. Crittenden, 37 Conn. 145; Terrett v. 
 Crombie, 6 Lansing, 82. 
 
 2 Bovey v. Smith, 1 Vern. 149; Schutt v. Large, 6 Barb. 373; Law- 
 rence V. Stratton, 6 Cush. 163; Church v. Ruland, 64 Penn. St. 441. 
 
 3 Mayor v. Williams, 6 Md. 235. 
 
 4 Pvogers V. Jones, 8 N. H. 264; Plumb v. Fluitt, 2 Anst.432 ; Griffith 
 V. Griffith, 1 Hoff. 153; Farnsworth v. Child, 4 Mass. 637. 
 
 (a) Williams ?;. Williams (Mich.), 156 N. Y. 459; Trinidad v. Mil- 
 76 N. W. 1039. In a naked trust, waukee, &c. Co. 63 F. R. 883 ; 
 notice to the cestui que trust is notice Coudit v. Maxwell, 142 Mo. 266 ; 
 to the trustee. Coryell v. Klehm, Swasey i\ Emerson, 168 Mass. 118. 
 157 111. 462. Persons who deal with trustees act- 
 
 (b) Constructive notice of the ing under a recorded deed are 
 terms and conditions of a trust affected with notice of its contents 
 arises from such circumstances as defining their powers. Stark v. 01- 
 would lead a reasonably cautious sen, 44 Neb. 646. A purchaser at 
 person to investigate. First Xat'l a sale under a power must ascertain 
 Bank v. Xat'l Broadway Bank, at his peril the extent of the power 
 
 322
 
 CHAP. VI.] 
 
 NOTICE. 
 
 [§ 223. 
 
 several States the recording of a deed is made notice to all 
 subsequent purchasers, though it frequently happens that 
 purchasers have no actual knowledge from the record; l»ut 
 that does not rebut the fact of notice, for the reason that it 
 is their duty to examine the records; they arc therefore con- 
 clusively affected -with notice of all of the record which is 
 legally made, and which it was their duty to examine.^ Lis 
 pendens is constructive notice; that is, a suit pending in 
 the public courts, concerning the title of the property pur- 
 chased, is constructive notice to the purchaser.'^ (a) Actual 
 possession by the cestui que trust, or some person other than 
 the vendor, is constructive notice to the purchaser that there 
 
 1 Maul V. Reder, 59 Penn. St. 1G7; Smith v. Burgess, 133 Mass. 511, 514. 
 
 - Drew V. Norbury, 9 Ir. Ecj. 170. Upon the filing of a bill in equity, 
 and before the service of the subposna, a suit is lis pendens. Ibid. See 
 Leitch V. Wells, 48 N. Y. 591. 
 
 and whether it still continues. Har- 
 mon i\ Smith, 38 F. R. 482; Saurez 
 r. De Montigny, 37 N. Y. S. 503. 
 
 Xeither a trustee nor a cestui que 
 trust can take an acknowledgment 
 thereof so as to make the recording 
 of the deed notice. Bowden v. 
 Parrish, 86 Va. 67 ; Rothschild r. 
 Daugher, 85 Texas, 332 ; Wasson 
 V. Connor, 54 Miss. 351. 
 
 (a) Lis pendens is confined to 
 realty and leaseholds, and does not 
 apply to personal property. Wig- 
 ram V. Buckley, [1804] 3 Ch. 483 ; 
 see Price v. Price, 35 Ch. D. 297; 
 Norris v. He, 152 111. 190; State v. 
 Commissioners (Kans.), 53 Pac. 
 526; Osborn v. Glasscock, 39 
 W. Va. 749, 760. It relates only to 
 suits that proceed to a final decree, 
 and not to those in which the bill 
 is dismissed without service or 
 appearance. Allison v. Drake, 145 
 111. 500. In equity, contrary to the 
 rule at law, it does not exist until 
 the subpcena is served. See Hol- 
 
 land ?'. Citizens' Bank, 16 R. I. 
 734; Burt v. Gamble, 98 Mich. 402; 
 Duff r. McDonough, 1.j5 Penn. St. 
 10; Baker v. Bartlett, 18 Mont. 
 440; Stout r. Philippi Manuf. Co., 
 41 W. Va. 339; Alliance Trust 
 Co. V. Nettleton Hardwood Co., 74 
 IMiss. 584 ; Burleson v. iMcDermott, 
 57 Ark. 229 ; Zieverink v. Kemper, 
 50 Ohio St. 208. It does not affect 
 one who purchases in good faith 
 after final decree and before a bill 
 of review is brought. Rector v. 
 Fitzgerald, 59 F. R. 808; see Cook >:. 
 French, 90 Mich. 525 ; Pipe r. Jor- 
 dan, 22 Col. 392; 47 Cent. L. J. 
 408. The modern rule depends upon 
 the inability of litigants to alienate 
 contested projierty, rather than upon 
 express or implied notice. See !McIl- 
 wrath V. Hollander, 73 Mo. 105 ; Oli- 
 phant V. Burns, 146 N. Y. 218; 
 Jaycox V. Smith, 45 N. Y. S. 299 ; 
 Jewett V. Iowa Laud Co., 64 Minn. 
 531. 
 
 323
 
 § 224] CONSTRUCTIVE TRUSTS. [CHAP. VI. 
 
 is some claim, title, or possession of the property adverse to 
 his vendor ; and this fact should put him upon his inquiry, 
 for if he had inquired he would have discovered the exact 
 title and the equitable claims upon it; he therefore has con- 
 structive notice. There are many other facts and circum- 
 stances from which courts will presume that a purchaser had 
 notice of the equities attached to an estate.^ If in any way 
 a person purchases, with what the law construes to be full 
 notice that another has a legal or equitable title to the prop- 
 erty, or that he has been deprived of his interest by accident, 
 mistake, or fraud, he will be held as a trustee. ^ 
 
 § 224. The same general principles affect the sales of 
 property by executors or administrators. Executors can 
 deal with real estate only as they are empowered to do so by 
 the will of testators. Purchasers must therefore look to the 
 will for the power of the executor. If they purchase in 
 good faith from an executor with power to sell, they will 
 take a good title ; but if they make a fraudulent or collusive 
 purchase from an executor with full power to sell, they still 
 hold the estate upon the same trusts to which it was subject 
 in the hands of the executor. If there are no powers to sell 
 real estate given to executors in the will, they have no 
 authority to deal with it, unless it is wanted to pay debts or 
 legacies, in which case both executors and administrators 
 must obtain an order or license from the court of probate to 
 sell. In such case the purchaser must see that the order of 
 the court was regularly obtained, and that it is properly 
 complied with. Any fraud or collusion on the part of the 
 executor or administrator, in procuring the decree of the 
 court or in the conduct of the sale, would convert the pur- 
 chaser into a trustee for heirs-at-law or other persons 
 
 1 It is impossible to state all the distinctions that have been estab- 
 lished upon this fruitful source of litigation. The principles are most 
 ably stated in the notes to Le Neve v. Le Neve, 2 Lead. Cas. Eq. 23 ; Cal- 
 houn V. Burnett, 40 Miss. 599 ; Pilcher v. Rawlins, L. R. 11 Eq. 53 ; Car- 
 ter V. Carter, 3 K. & J. 687; Farris v. Dunn, 7 Bush, 276. 
 
 2 Forbes v. Hall, 34 111. 159. 
 
 324
 
 ClLVr. VI.] ADMINISTRATOR. [§ 225. 
 
 intcrestetl.' So, if an executor or administrator pureliases 
 indirectly of himself throuj^h a third ijcrson, and takes a 
 deed to himself through such third person, the sale will be 
 void, or the estate will be held in trust by such adminis- 
 trator or executor for the heirs-at-law or other persons 
 interested. 
 
 § 225. An executor or administrator generally has full 
 power over the personal estate under his charge. Therefore 
 he may sell the same and give a good title to a purchaser. ^ 
 This is the rule at common law, and it prevails in all States 
 where it is not changed by statute. In some States there 
 are statutes that direct executors or administrators to sell 
 the personal estate of the deceased at pu])lic auction, or in 
 such manner as the court having jurisdiction over the 
 administration shall order. In such States, purchasers must 
 see to it that executors and administrators, in making sales, 
 pursue the course marked out for them by the statutes or by 
 the orders of the court, or they will take no title. ^ In all 
 sales by executors and administrators ^/oot^/ai^/i is indispen- 
 sable. If therefore a purchaser knows, or has notice, that a 
 sale by an administrator is fraudulent or collusive, or is a 
 devastavit^ or is for the purpose of a misapplication of the 
 assets, his title will not be allow^ed to prevail against the 
 beneficial interests of creditors, specific or residuary lega- 
 tees, or next of kin or heirs.* Equity will examine the 
 
 1 Brush V. Ware, 15 Pet. 93 ; Brock v. Phillips, 2 Wash. 68. 
 
 2 Field V. Schieffelin, 7 Johns. Ch. 155 ; Rayner v. Pearsall, 3 Johns. 
 Ch. 578; Hertell v. Bogert, 9 Paige, 57; Yerger v. Jones, 16 How. 37; 
 Miles V. Durnford, 2 Sim. (n. s.) 234 ; Tyrrell v. Morris, 1 Dev. & Batt. 
 559; Hunter f. Lawrence, 11 Grat. 117; Bond r. Ziegler, 1 Kelly, 324; 
 Crane v. Drake, 2 Vern. 616; Ewer v. Corbett, 2 P. Wms. 148; Xewland 
 V. Champion, 1 Ves. 105 ; Jacomb v. Harwood, 2 Ves. 268 ; Elmlie t'. 
 McAulay, 3 Bro. Ch. 626 ; Utterson v. Maire, 4 Bro. Ch. 270 ; 2 Ves. Jr. 
 95 ; Scott V. Tyler, 2 Dick. 725 ; Bonney v. Ridgard, 1 Cox, 145 ; Dick- 
 son V. Lockyer, 4 Ves. 42; Doran r. Simpson, id. 665; Hill o. Simpson, 
 7 Ves. 152. 
 
 8 Fambro v. Gantt, 12 Ala. 305 ; Bond v. Barksdale, 4 Des. 526 ; Bond 
 V. Ziegler, 1 Kelly, 324; Baines v. iNIcGee, 1 Sm. & M. 208. 
 
 ■» Petrie v. Clark, 11 Serg. & R. 388; Wylson v. Moore, 1 M. & K. 337; 
 
 325
 
 § 225.] CONSTRUCTIVE TRUSTS. [OHAP. TI. 
 
 transaction; and if circumstances appear sufficient to put 
 the purchaser on his guard or upon his inquiry, the sale will 
 be avoided or the purchaser will be held as a trustee.^ If 
 the transfer is by way of pledge or sale for the security or 
 payment of the private debt of the administrator, it will be 
 equivalent to full notice of the illegality of the transaction, 
 and fraudulent. 2 But if an administrator make a pledge of 
 the assets for a contemporaneous advance of money for the 
 use of the estate, it will be held to be a valid transaction ; 
 or if the sale or pledge or mortgage is afterwards made for a 
 previous advance made in good faith for the alleged benefit 
 of the estate, it will be valid. ^ Of course knowledge on the 
 part of the purchaser, that the executor or administrator is 
 dealing with the assets in a fiduciary capacity, is not enough 
 to raise any suspicion, for the reason that it is the duty of 
 the administrator to dispose of the assets and settle the 
 estate ; and so a trustee may sell and transfer absolutely the 
 personal property of his trust, if he have power to vary the 
 securities; and if he sells and transfers notes, stocks, or 
 other securities standing in his name as trustee, the pur- 
 chaser, from that fact alone, cannot be holden as a construc- 
 
 Cole V. Miles, 10 Hare, 179 ; Saxon v. Barksdale, 4 Des. 526 ; McXair's 
 App., 4 Rawie, 155; Johnson v. Johnson, 2 Hill, Eq. 277; Mead v. Or- 
 rery, 3 Atk. 235; McLeod v. Drummond, 14 Ves. 361 ; 17 Ves. 169 ; Field 
 V. Schieffclin, 7 Johns. Ch. 155 ; Colt v. Lasnier, 9 Cow. 320 ; Sacia ». 
 Berthoud, 17 Barb. 15 ; Williamson v. Branch Bank, 7 Ala. 906 ; Swink 
 V. Snodgrass, 17 Ala. 653 ; Garnett v. Macon, 6 Call. 361 ; Dodson v. Simp- 
 son, 2 Rand. 294; Graff v. Castle man, 5 Rand. 204; Parker r. Gillian, 
 10 Yerg. 294 ; Williamson v. Morton, 2 Md. Ch. 94 ; Lowry v. Farmers' 
 Bank, 10 P. L. J. 3 ; Am. L. J. (x. s.) 111. 
 
 1 McXeillie v. Acton, 4 De G., M. & G. 744. 
 
 2 Petrie v. Clark, 11 Serg. & R. 388; Shaw v. Spencer, 100 Mass. 382; 
 Judson V. National City Bank, 8 Blatch. 430, and cases cited ; Pendleton 
 V. Fay, 2 Paige, 202 ; Bayard v. Farmers', &c. Bank, 52 Penn. St. 232 ; 
 Baker r. Bliss, 39 N. Y. 76 ; Carr v. Hilton, 1 Curtis, 390-393 ; Field v. 
 Schieffelin, 7 Johns. Ch. 155 ; Williamson v. Morton, 2 Md. Ch. 94 ; Gar- 
 rard V. R. R. Co., 29 Penn. St. 1-54 ; Collinson v. Lister, 7 De G., M. & G. 
 634; Dodson v. Simpson, 2 Rand. 294; Williamson v. Branch Bank, 7 
 Ala. 906. 
 
 8 Petrie v. Clark, 11 Serg. & R. 388; Miles v. Dumford, 2 Sun. (n. s.) 
 234 ; Russell v. Plaice, 18 Beav. 21 ; 11 Jur. 124 ; 19 Jur. 445. 
 326
 
 CHAP. VI.] 
 
 ADMINISTRATOR. 
 
 [§ 225. 
 
 tive trustee, although the trustee in fact transfci-s such 
 securities or order to obtain ni(jney for his own pers<jnal use. 
 The mere fact that the word " trustee " is on the face of the 
 securities cannot ])ut a purchaser to any inquiry beyond 
 ascertaining whether tlic trustee has power to vary the 
 securities, (a) If he has such power, a purchaser in (jood 
 faith will be protected, although the trustee use the money 
 for his private purposes.^ But if a purchaser takes securi- 
 ties from a trustee, with the word "trustee" upon their face, 
 in payment of a private debt due from the trustee, the sale 
 may be avoided by the cestui que trusty or the purchaser may 
 be held as a trustee. ^ And so, if an executor, guardian, or 
 trustee hold certificates of shares in a corporation, he may 
 sell the same, and the corporation would be protected in 
 issuing new certificates to the purchaser, but if the corpora- 
 
 ^ Ashton V. Atlantic Bank, 3 Allen, 217 ; Creigton v. llingle, 3 S. C 
 77 ; Dillaye v. Com. Bank, 51 N. Y. 355. 
 
 2 Shaw V. Spencer, 100 Mass. 388; Jaudon v. National Bank, 8 Blatch. 
 430 ; Duncan v. Jaudon, 14 Wall. 15. 
 
 (a) A promissory note in which 
 the payee's name is followed by the 
 word " trustee," is negotiable. See 
 Fox V. Citizens' Bank & Trust Co. 
 (Tenn.), 35 L. R. Ann. 678, and 
 note. A deposit of money in bank 
 as trustee does not alone establish 
 a trust, but the addition of the word 
 " trustee " to the grantee's name in 
 a conveyance is notice that there 
 is a trust. Marbury r. Ehlen, 
 72 Md. 206; Mercantile Xat. 
 Bank c. Parsons, 54 Minn. 56 ; Park- 
 man r. Suffolk S. Bank, 151 Mass. 
 218 ; Shepard r. Creamer, 160 Mass. 
 496 ; Cunningham v. Davenport, 
 147 N. Y. 43; Beaver v. Beaver, 
 117 id. 421 ; Macy v. Williams, 83 
 Hun, 243 ; Isham v. Post, 71 id. 184 ; 
 Hart V. Seymour, 147 111. 598; John- 
 eon V. Calnan, 19 Col. 168; Ilahn r. 
 Hutchinson, 159 Penn. St. 133 ; Wal- 
 
 lace V. Langston, 52 S. C. 133. It 
 may, however, be mere surplusage. 
 See supra, § 82, n. A mere recital 
 in a bond that it and others of the 
 same series are secured by trust 
 deed does not put the holder on 
 inquiry as to the terms and condi- 
 tions of the deed. Guilford i\ Min- 
 neapolis, &c., Ry. Co., 48 Minn. 560. 
 See De Voss v. Richmond (Va.), 
 98 Am. Dec. 646, 684 ; McClelland 
 V. Norfolk So. R. Co., 110 N. Y. 
 469. The transferee of a promis- 
 sory note which is secured by deed 
 of trust may require the enforce- 
 ment of the trust. Clark c. Jones, 
 93 Tenn. 639. Judgment recovered 
 upon a debt so secured does not so 
 merge the debt as to take away such 
 security. Gibson r. Green, 89 Va. 
 524. See McComb v. Frink, 149 
 U. S. 629. 
 
 327
 
 § 226.] CONSTRUCTIVE TRUSTS. [CIIAP. VI. 
 
 tion knew that the sale or transfer was a breach of the trust 
 or a devaatavit, it might be held as a constructive trustee for 
 the persons beneficially interested; but the mere fact that 
 the fiduciary character of the vendor appeared upon the face 
 of the transaction would put the corporation upon no inquiry 
 beyond ascertaining whether he had authority to change the 
 securities.^ 
 
 § 226. The statute of frauds is no obstacle in the way of 
 proof of an actual or constructive fraud in the sale of prop- 
 erty.^ Parol evidence is admissible to establish a trust, even 
 against a deed absolute on its face, if it would be a fraud to 
 set up the form of the deed as conclusive.^ Lord Hardwicke 
 stated "that the court adhered to this principle, that the 
 statute of frauds should never be understood to protect fraud, 
 and therefore wherever a case is infected with fraud, the 
 court will not suffer the statute to protect it. " * Lord Thur- 
 low added, that " the moment you impeach a deed for fraud 
 you must either deny the effect of fraud upon the deed, or 
 you must admit parol evidence to prove it. "^ If this was 
 not so, the law would be reduced to this absurdity, — if a 
 fraud could once succeed in procuring the transaction to be 
 reduced to writing and signed by the parties, it would be 
 protected by the law itself, and there would be no possible 
 means of reaching and correcting the wrong. But in such 
 case the bill must contain a clear and distinct charge of 
 fraud. ^ Therefore, whenever the bill sets out a clear case 
 
 ^ Ashton V. Atlantic Bank, 3 Allen, 217, and cases cited note 1. 
 
 2 Kayser v. Maugham, 8 Col. 232; Bohm v. Bohm, 9 id. 100. 
 
 3 Hall V. Livingston, 3 Del. Ch. 348. 
 
 * Reach v. Keunigate, 1 Yes. 125 ; Young v. Peachey, 2 Atk. 258 ; 
 Walker v. Walker, id. 98 ; Hutchins v. Lee, 1 Atk. 418 ; Montacnte v. 
 Maxwell, 1 P. AVms. 620 ; Lincoln r. Wright, 4 De G. & J. 16 ; Childers 
 r. Childers, 1 De G. & J. 482 ; Davis v. Oty, 35 Beav. 208 ; Ryan v. Dox, 
 34 N. Y. 307 ; Haigh v. Kaye, L. R. 7 Ch. 474. 
 
 5 Shelborne v. Inchinquin, 1 Bro. Ch. 350; Hare v. Sherewood, 1 Yes. 
 Jr. 243; Townshend v. Stangroom, 6 Yes. 333; Pym v. Blackburn, 3 Yes. 
 38, n. ; and see Conolly v. Howe, 5 Yes. 701. 
 
 6 Irnham v. Child, 1 Bro. Ch. 94; Portmore v. Morris, 2 Bro.Ch. 219; 
 
 328
 
 CHAP. VI.] STATUTE OF FRAUDS. [§ 226. 
 
 of fraud, parol evidence will be admitted to prove it, even if 
 the eii'cct of such evidence is to contradict, vary, alter, or 
 destroy written instruments.* The mere refusal of a grantee 
 to execute, or the denial of the existence of an invalid parol 
 trust ujion which she promised to hold the property, is not 
 such a fraud as will take the case out of the statute.^ But 
 where a valuable interest passes to one on tho faith of a 
 contract he refuses to perform, equity will compel rcstitu- 
 lion or give other apjjropriate relief. ^ (a) In any case if the 
 trust arises from the acts of the parties, and not exclusively 
 ivom their agreements, the statute of frauds is not a bar to 
 the proof.* But where a conveyance in trust is made volun- 
 
 Forsyth v. Clark, 3 Wend. 637; Gouverueur v. Elraendorf, 5 Johns. Ch. 
 79; Kennedy r. Kennedy, 2 Ala. 571; Skrine r. Simmons, 11 Ga. 401 ; 
 McCalraont v. Rankin, S Hare, 18. 
 
 1 Young V. Peachey, 2 Atk. 257 ; Thynn v. Thynn, 1 Vern. 290; Iru- 
 ham V. Child, 1 Bro. Ch. 93 ; Cripps v. Gee, 4 Bro. Ch. 475; Oldham v. 
 Lechford, 2 Vern. 506 ; Drakeford v. Wilks, 3 Atk. 539; Reach v. Ken- 
 iiigate, 1 Yes. 125; Amb. G7 ; Pember v. Mathers, 1 Bro. Ch. 52; Wil- 
 kinson r. Bradfield, 1 Vern. 307 ; Miller r. Cotton, 5 Ga. 316 ; Christ v. 
 Diffenbach, 1 Serg. & R. 464; Watkins v. Stockett, 6 II. & J. 345; Elliott 
 V. Connell, 5 Sm. & M. 91; Barrell v. Hanrick, 42 Ala. 00 ; (b) Judd v. 
 Mosely, 31 Iowa, 433. 
 
 3 Scott V. Harris, 113 111. 447; Tatge v. Tatge, 34 Minn. 275 ; Towu- 
 seud r. Fenton, 32 Minn. 482. 
 
 8 Randall v. Constans, 33 Minn. 329; Johnson r. Krassin, 25 Minn. 
 118. 
 
 * Judd V. jNIosely, 30 Iowa, 428; Bryant v. Hendricks, 5 Iowa, 256; 
 Kincell v. Feldman, 22 Iowa, 363; Ferguson v. Hass, 64 X. C. 772 ; 
 Squire's App., 70 Penn. St. 268; Reese v. Wallace, 113 111. 595. And so 
 the statute of frauds is not a bar to relief in other cases of absolute deeds, 
 where they are used in a manner and for purposes not contemplated at 
 the time of their execution. Thus a deed may be shown to be a mortgage 
 or security for a debt, although there was no written defeasance, and no 
 fraud, accident, or mistake. This proposition has been much discussed. 
 
 (a) When a grantor in trust has conveyances. Judge r. Pfaff, 171 
 
 a right to redeem the fund, he takes Mass. 195. 
 
 the fund as he finds it, subject to (/>) Barrell r. Hanrick was over- 
 
 any changes in form lawfully made ruled in Brock /-. Brock, 90 Ala. 86; 
 
 by the trustee, including contracts Manning r. Pippen, 86 .:Ua. 357 ; 
 
 which in etiuity have the effect of 95 Ala. 537. 
 
 329
 
 § 226.] CONSTRUCTIVE TKUSTS. [CHAP. VI. 
 
 tarily without solicitation or undue influence, a mere promise 
 to hold in trust is within the statute.^ If a bill is brought 
 
 The latest case, Campbell v. Dearborn, 109 Mass. 130, contains a review 
 of the authorities and a succinct statement of the doctrine ; and as it is 
 upon a subject closely connected with constructive trusts, the case is 
 given at large. 
 
 " From those facts, and from the bill and answer, we think these points 
 must be taken to be established ; to wit, 1st, that the plaintiff had pur- 
 chased the parcel of land in controversy, and held a contract from Tirrill 
 for its conveyance to himself upon payment of the sum of $5500 ; 2d, that 
 the money was advanced by the defendant to the plaintiff as a loan, and 
 the deed from the plaintiff to the defendant was given by way of security 
 therefor. The report finds, ' from all the circumstances surrounding 
 the transaction, and from the acts and declarations of the parties at the 
 time, that the plaintiff believed and had reason to believe ' this to be 
 the case. 
 
 " From the whole case we are satisfied that it was a transaction be- 
 tween borrower and lender, and not a real purchase of the land by the 
 defendant. We are brought, then, to the question, Can equity relieve 
 in such a case ? 
 
 " The decisions in the courts of the United States, and the opinions 
 declared by its judges, are uniform in favor of the existence of the power, 
 and the propriety of its exercise by a court of chancery. Hughes i\ Ed- 
 wards, 9 Wheat. 489; Sprigg v. Bank of Mount Pleasant, U Pet. 201, 208; 
 Morris i\ Nixon, 1 How. 118; Russell v. Southard, 12 How. 139; Taylor 
 V. Luther, 2 Sumner, 228 ; Flagg v. Mann, id. 486 ; Jenkins v. Eldredge, 
 3 Story, 181; Bentley v. Phelps, 2 Wood. & M. 426; Wyman v. Babcock, 
 2 Curtis C. C. 386, 398 ; s. c. 19 How. 289. Although not bound by the 
 authority of the courts of the United States in a matter of this sort, still 
 we deem it to be important that uniformity of interpretation and ad- 
 ministration of both law and equity should prevail in the State and 
 federal courts. We are disposed, therefore, to yield much deference to 
 the decisions above referred to, and to follow them unless we can see 
 that they are not supported by sound principles of jurisprudence, or that 
 they conflict with rules of law already settled by the decisions of our 
 own courts. 
 
 " We cannot concur in the doctrine advanced in some of the cases, that 
 the subsequent attempt to retain the property, and refusal to permit it to 
 be redeemed, constitute a fraud or breach of trust, which affords ground 
 of jurisdiction and judicial interference. There can be no fraud or legal 
 wrong in the breach of a trust from which the statute withholds the 
 
 1 McClain v. McClain, 57 Iowa, 167. 
 oo\)
 
 CHAP. VI.] STATUTE OF FRAUDS. [§ 226. 
 
 for relief, on the ground that the instrument is framed con- 
 trary to the intention of the parties through mistake, acci- 
 
 right of judicial recogtiitioii. Such conduct may sometimes appear to 
 relate back, and give character to the original transaction, by showing, in 
 that, an express intent to deceive and defraud. But ordinarily it will 
 not be connected with the original transaction otherwise than construc- 
 tively, or as involved iu it as its legitimate consequence and natural fruit. 
 In this aspect only can we regard it in the present case. 
 
 " The decisions in the federal courts go to the full extent of affording 
 relief, even in the absence of proof of express deceit or fraudulent pur- 
 pose at the time of taking the deed, and although the instrument of 
 defeasance ' be omitted by design upon mutual confidence between the 
 parties.' In Russell v. Southard, 12 How. 139, 148, it. is declared to be 
 the doctrine of the court, ' that, when it is alleged and proved that a loan 
 on security was really intended, and the defendant sets up the loan as 
 payment of purchase-money, and the conveyance as a sale, both fraud and 
 a vice in the consideration are sufficiently averred and proved to require 
 a court of equity to hold the transaction to be a mortgage.' The con- 
 clusion of the court was, ' that the transaction was in substance a loan of 
 money upon security of the farm, and, being so, a court of equity is 
 bound to look through the forms in which the contrivance of the lender 
 has enveloped it, and declare the conveyance of the land to be a mortgage.' 
 
 " This doctrine is analogous, if not identical, with that which has so 
 frequently been acted upon as to have become a general if not universal 
 rule, iu regard to conveyances of land where provision for reconveyance is 
 made in the same or some contemporaneous instrument. In such cases, 
 however carefully and explicitly the writings are made to set forth a sale 
 with an agreement for repurchase, and to cut off and renounce all right of 
 redemption or reconveyance otherwise, most courts have allowed parol 
 evidence of the real nature of the transaction to be given, and, upon 
 proof that the transaction was really and essentially upon the footing of a 
 loan of money, or an advance for the accoumiodation of the grantor, have 
 construed the instruments as constituting a mortgage ; holding that any 
 clause or stipulation therein, which purports to deprive the borrower of 
 his equitable rights of redemption, is oppression, against the policy of the 
 law, and to be set aside by the courts as void. 4 Kent, Cora. 159 ; Cruise, 
 Dig. (Greenl. ed.) tit. xv. c. 1, § 21 ; 2 Washb. Real Prop, (^d ed.) 42 ; 
 Williams on Real Prop. 353 ; Story, Eq. § 1019 ; Adams, Eq. 112 ; 3 Lead. 
 Cas. in Eq. (3d Am. ed.); White & Tudor's notes to Thornbrough v. 
 Baker, pp. 005 [*874] et seq. ; Ilare & Wallace's notes to s. c pp. 624 
 [*894] et seq. 
 
 " The rule has been frequently recognized in Massachusetts, where, until 
 1855, the courts have held their jurisdiction of foreclosure and redemption 
 of mortgages to be limited to cases of a defeasance coutaiued in the deed 
 
 331
 
 § 226.] CONSTRUCTIVE TRUSTS. [CIIAP. VI. 
 
 dont, surprise, or fraud, in such case, Lord Hardwicke said 
 "that a mistake could never be proved but by parol evi- 
 
 or some other instrument under seal. Erskine v. Townsend, 2 Mass. 493 ; 
 Killeran v. JJrown, 4 Mass. 443; Taylor v. Weld, 5 Mass. 109; Carey v. 
 liawson, 8 Mass. 159 ; Parks v. Hall, 2 Pick. 206, 211 ; Rice v. Rice, 
 4 Pick. 349 ; Flagg v. Mauu, 14 Pick. 4G7, 478 ; Eatou v. Green, 22 I'ick. 
 52G. The case of Flagg v. Maun is explicit, not only upon the authoi'ity 
 of the court thus to deal with the written instruments of the parties, but 
 also upon the point of the competency of parol testimony to establish the 
 facts by which to control their operation ; although, upon consideration of 
 the parol testimony in that case, the court came to the conclusion that 
 there was a sale in fact and not a mere security for a loan. 
 
 " By the statute of 1855, c. 194, § 1, jurisdiction was given to this court 
 in equity ' in all cases of fraud, and of conveyances or transfers of real 
 estate in the nature of mortgages.' Gen. Sts. c. 113, § 2. The authority 
 of the courts under this clause is ample. It is limited only by those con- 
 siderations which guide courts of full chancery powers in the exercise of 
 all those powers. 
 
 "If, then, the advantage taken of the borrower by the lender, in re- 
 quiring of him an agreement that he will forego all right of redemption 
 in case of non-payment at the stipulated time, or an absolute deed with 
 a bond or certificate back, which falsely recites the character of the trans- 
 action, representing it to be a sale of the land with a privilege of repur- 
 chase, be a sufficient ground for interference in equity by restricting the 
 operation of the deed, and converting the writings into a mortgage, con- 
 trary to the expressed agreement, it is difficult to see why the court may 
 not and ought not to interpose to defeat the same wrong, when it attempts 
 to reach its object by the simpler process of an absolute deed alone. In 
 each case the relief is contrary to the terms of the written agreement. In 
 one case it is against the express words of the instrument or clause relied 
 on as a defeasance, on the ground that it was oppressive and wrongful to 
 withhold or omit the formal defeasance. In strictness, there is no de- 
 feasance in either case. The wrong on the part of the lender or grantor, 
 which gives the court its power over his deed, is the same in both. ' For 
 they who take a conveyance as a mortgage without any defeasance are 
 guilty of a fraud.' Cotterell v. Purchase, Cas. temp. Talbot, 61. See 
 also Barnhart v. Greenshields, 9 Moore, P. C. 18 ; Baker v. Wind, 1 Ves. 
 Sen. 160 ; Mahlor v. Lees, 2 Atk. 494 ; Williams v. Owen, 5 Myl. & Cr. 
 303 ; Lincoln v. Wright, 4 De Gex & Jones, 16. 
 
 " As a question of evidence, the principle is the same. In either case 
 the parol evidence is admitted, not to vary, add to, or contradict the writ- 
 ings, but to establish the fact of an inherent fault in the transaction or 
 its consideration, which affords ground for avoiding the effect of the 
 writings by restricting their operation, or defeating them altogether. 
 332
 
 CHAP. VI.] STATUTE OF FRAUDS. [§ 226. 
 
 dcnce, consequently it must be received."^ But ^vhere 
 through mistake of law, or carelessness or inattention, an 
 
 This i.s a general principle of evidence, well e.stablishcd and recognized, 
 both at law and in equity. (Stackpole v. Arnold, 11 Mass. 27; Fletcher 
 V. Willard, 14 Pick. 40 1 ; 1 Greenl. Ev. § 284 ; Perry on Trusts, § 226. 
 
 '• The reasons for extending the doctrine, in equity, to ab.solute deeds, 
 whi-re there is no provision for reconveyance, are ably presented by Hare 
 & Wallace in their notes to WooUam v. Ilearne, 2 Lead. Cas. in Eq. (od 
 Am. ed.) 670, and to Thornbrough v. Baker, 3 id. 024. See also Adams 
 Eq. Ill ; 1 Sugd. Vend. (8th Am. ed.), Perkins's notes, pp. 207, 288,302, 
 303. The doctrine thus extended is declared, in numerous decisions, to 
 prevail in New York ; also in Vermont and several other States. !Mr. 
 Washburn, in his chapter on mortgages, § 1, has exhibited the law as held 
 in the different States, in this particular; and the numerous references 
 there made, as well as by the annotators in the other treatises which we 
 have cited, render it superfluous to repeat them here. 2 Washb. Ileal 
 Prop. (3d ed.) 35 et seq. 
 
 " Upon the whole, we are convinced that the doctrine may be adopted 
 without violation of the statute of frauds, or of any principle of law or 
 evidence ; and, if properly guarded in administration, may prove a sound 
 and salutary principle of equity jurisi^rudence. It is a power to be exer- 
 cised with the utmost caution, and only when the grounds of interference 
 are fully made out, so as to be clear from doubt. 
 
 " It is not enough tliat the relation of borrower and lender, or debtor 
 and creditor, existed at the time the transaction was entered upon. Ne- 
 gotiations, begun with a view to a loan or security for a debt, may fairly 
 terminate in a sale of the property originally proposed for security. And 
 if, without fraud, oppression, or unfair advantage taken, a sale is the real 
 result, and not a form adopted as a cover or pretext, it should be sus- 
 tained by the court. It is to the determination of this question that the 
 parol evidence is mainly directed. 
 
 " The chief inquiry is, in most cases, whether a debt was created by the 
 transaction, or an existing debt, which formed or entered into the consid- 
 eration, continued and kept alive afterwards. ' If the purchaser, instead 
 
 1 Baker v. Paine, 1 Ves. 457; Towers v. Moor, 2 Vern. 98; Langley v. 
 Brown, 2 Atk. 203 ; Townshend v. Stangroom, 6 Ves. 328 ; Taylor v. 
 Radd, 5 Ves. 595, 596, n.; Ilenkle v. Royal Ins. Co., 1 Ves. 318; Rogers 
 V. Earl, 1 Dick. 294; Barstow v. Kilvington, 5 Ves. 593; Hunt v. llous- 
 manier, 8 Wheat. 174; Gower v. Sternes, 2 Whart. 75; Keisselbrock v. 
 Livingston, 4 Johns. Ch. 144 ; Peterson v. Grover, 20 Maine, 363 ; New- 
 son ('. Bufferlow, 1 Dev. Eq. 379; Goodell v. Freed, 15 Vt. 448; Harrison 
 V. Howard, 1 Ired. Eq. 407; Blanchard v. Moore, 4 J. J. Marsh. 471; 
 Perry v. Pearson, 1 Humph. 431. 
 
 333
 
 § 226.] CONSTRUCTIVE TRUSTS. [CIIAP. VI. 
 
 important provision is omitted from a deed, and no fraud is 
 charged or proved, parol evidence cannot be received against 
 
 of taking the risk of the subject of the contract on himself, takes a secur- 
 ity for repayment of the principal, that will not vitiate the transaction, and 
 render it a mortgage security.' 1 Sugd. Vend. (8th Am. ed.) ;302, in 
 support of which the citations by Mr. Perkins are numerous. But any 
 recognition of the debt as still subsisting, if clearly established, is equally 
 efficacious ; as the receipt or demand of interest or part payment. Eaton 
 t'. Green, 22 Tick. 526, 530. 
 
 " Although proof of the existence and continuance of the debt, for 
 which the conveyance was made, if not decisive of the character of the 
 transaction as a mortgage, is most influential to that effect, yet the ab- 
 sence of such proof is far from being conclusive to the contrary. Rice v. 
 Rice, 4 Pick. 349; Flagg v. Mann, 14 Pick. 467, 478; Russell v. South- 
 ard, 12 How. 139 ; Browne r. Dewey, 1 Sandf. Ch. 56. When it is con- 
 sidered that the inquiry itself is supposed to be made necessary by the 
 adoption of forms and outward appearance differing from the reality, it 
 is hardly reasonable that the absence of an actual debt, manifested by a 
 written acknowledgment or an express promise to pay, should be regarded 
 as of more significance than the absence of a formal defeasance. It of 
 course compels the party attempting to impeach the deed, to make out his 
 proofs by other and less decisive means. But as an affirmative proposition 
 it cannot have much force. 
 
 " A mortgage may exist without any debt or other personal liability of 
 the mortgagor. If there is a large margin between the debt or sum ad- 
 vanced and the value of the land conveyed, that of itself is an assurance 
 of payment stronger than any promise or bond of a necessitous borrower 
 or debtor. Hence inadequacy of price, in such case, becomes an impor- 
 tant element in establishing the character of the transaction. Inadequacy 
 of price, though not of itself alone sufficient ground to set in motion 
 chancery powers of the court, may nevertheless properly be effective to 
 quicken their exercise, where other sufficient ground exists : Story, Eq. 
 §§ 239, 245, 246; and in connection with other evidence may afford strong 
 ground of inference that the transaction purporting to be a sale was not 
 fairly and in reality so. Kerr on Fraud and Mistake, 186 and note; 
 Wharf i;. Howell, 5 Binn. 499. 
 
 " Another circumstance that may and ought to have much weight is 
 the continuance of the grantor in the use and occupation of the land as 
 owner, after the apparent sale and conveyance. Cotterell v. Purchase, 
 Cas. temp. Talbot, 61 ; Lincoln v. Wright, 4 De Gex & Jones, 16. 
 
 " These several considerations have more or less weight, according to 
 
 the circumstances of each case. Conway v. Alexander, 7 Cranch, 218 ; 
 
 Bentley v. Phelps, 2 Wood. & M. 426. It is not necessary that all should 
 
 concur to the same result in any case. Each case must be determined 
 
 334
 
 CHAP. VI.] STATUTE OF FKAUDS. [§ 227. 
 
 the denial of the defendant in his answer to reform, vary, or 
 defeat the instrument' Parol evidence, however, is not 
 favorably received Ijy courts in any case, and they will not 
 act upon it against written instruments, unless it is exceed- 
 ingly clear and certain, and uncontradicted by other cvi- 
 dence,^ In Pennsylvania, however, a different rule prevails, 
 and parol evidence of the verbal agreements and stipulations 
 upon the faith of which the contract was made, is received in 
 evidence to control its operation or to explain its meaning.^ 
 
 § 227. The right of a party who has been defrauded of the 
 title to his land is not a mere right of action to set the deed 
 aside, but it is an equitable estate in the land itself, which 
 may be sold, assigned, conveyed, and devised.* In the 
 
 upon its own special facts ; but those should be of clear and decisive im- 
 I)ort." So, if it is necessarj' for an absolute grantee to come into a court 
 of equity for relief, as for a loss of the deeds, the court can compel him to 
 do equity, as to make a settlement upon parties entitled to a settlement by 
 parol understanding. Phillips v. Pliillips, 50 Mo. G03. 
 
 1 Lemon v. Whitely, 4 Russ. 42:5 ; Irnhain v. Child, 1 Bro. Ch. 92 ; 
 Portmore v. Morris, 2 id. 219; Rich r. Jackson, 4 id. 614 ; 6 Yes. 334, 
 n. ; Jackson v. Cator, 5 Yes. 688 ; Hare v. Sherwood, 1 Yes. Jr. 241 ; 
 Anon. Skin. 159 ; Mortimer v. Shortall, 2 Dr. & W. 363 ; Alexander 
 V. Crosbie, Llo. & Go. 145 ; London R. Co. v. Winter, 1 Cr. & Phil. 57 ; 
 Garwood v. Eldridge, 1 Green, Ch. 146; Lyon v. Richmond, 2 Johns. 
 Ch. 60; Wheaton v. Wheatou, 9 Conn. 96; Hunt v. Rousinanier, 1 Pet. 
 1 ; Parkhurst v. Yan Cortlandt, 1 Johns. Ch. 282 ; Westbrook r. Harbe- 
 son, 2 McCord, Ch. 112 ; Dwight v. Pomroy, 17 Mass. 303 ; Robson v. 
 Harwell, 6 Ga. 589 ; Chamness v. Crutchfield, 2 Ired. Eq. 14S ; Movan 
 V. Hayes, 1 Johns. Ch. 339; RatclLff v. Ellison, 3 Rand. 537; Richardson 
 V. Thompson, 1 Humph. 151. 
 
 2 Barrow v. Greenhough, 3 Yes. 154 ; Townshend v. Stangroom, 6 Yes. 
 334 ; Shelborne v. Inchinquin, 1 Bro. Ch. 341 ; Miller v. Cotten, 5 Ga. 
 346. See the whole matter elaborately discussed and all the authorities 
 collected in notes to WooUam v. Ilearne, 2 Lead. Cas. Eq. 084 ; Barkley 
 V. Lane, 6 Bush, 58 ; Collier v. Collier, 30 Ind. 32 ; Lingenfitter v. Rich- 
 ings, 62 Penn. St. 128. 
 
 8 Chalfant v. Williams, 35 Penn. St. 212 ; Clark v. Partridge, 2 Barr, 
 13 ; 4 Barr, 166 ; Oliver v. Oliver, 4 Rawle, 141 ; Rearich r. Swiuehart, 
 1 Jones, 238 ; Christ v. Diffenbach, 1 Serg. & R. 464. 
 
 4 Stump V. Gaby, 2 De G., M. & G. 623 ; McKissick v. Pickle, 4 Har- 
 ris, 140 ; Kane County i;. Herriugton, 50 111. 232. 
 
 335
 
 § 228.] CONSTRUCTIVE TRUSTS. [CHAP, VI. 
 
 view of a court of equity, he is still the owner of the estate, 
 subject to repay whatever money or other property he may 
 have received from the fraudulent grantee. And so the 
 equitable interest of a purchaser under a contract of sale is 
 of that character that it may be assigned or devised.^ 
 
 § 228. Time does not bar a direct trust where the relation 
 of trustee and cestui que trust is admitted to exist, but dili- 
 gence must be used to establish a constructive trust on the 
 ground of fraud. A court of equity will refuse its aid to 
 stale demands, where a party has slept upon his rights, or 
 has acquiesced for a great length of time.^ And so a con- 
 structive trust will be barred by long acquiescence, although 
 the fraud was evident and the relief was originally clear. ^ 
 
 1 Stump V. Gaby, 2 De G., M. & G. 623 ; Morgan v. Halford, 1 Sm. & 
 Gif. 101 ; Cogswell v. Cogswell, 2 Edw. Ch. 231 ; Malin v. Malin, 1 Wend. 
 625; Clapper v. House, 6 Paige, 149 ; Kent v. Mehaffey, 10 Ohio St. 204. 
 
 2 Smith V. Clay, 3 Bro. Ch. 639, n. ; Cholmondeley v. Clinton, IJ. & 
 W. 151; Chalmer v. Bradley, id. 59 ; Beckford v. Wade, 17 Ves. 97; Port- 
 lock V. Gardner. 1 Hare, 594 ; Hawley v. Cramer, 4 Cow. 117; Dobson v. 
 Kacey, 3 Sandf. Ch. 61 ; Powell v. Murray, 2 Edw. Ch. 644 ; 10 Paige, 256; 
 Piatt V. Yatier, 9 Pet. 405 ; McKnight v. Taylor, 1 How. 161 ; Wagner i'. 
 Baird, 7 How. 234 ; Veasie v. ^Villiams, 8 How. 134 ; Hallett v. Collins, 
 10 How. 174; Hough v. Richardson, 3 Story, 659; Gould v. Gould, 
 3 Story, 516 ; Peebles v. Reading, 8 Serg. & R. 484 ; Irvine v. Robertson, 
 3 Rand. 549 ; Colman u. Lyne, 4 Rand. 454 ; Anderson v. Burchell, 6 Grat. 
 405 ; 2 Story's Eq. Jur. § 1520, notes. 
 
 8 Bonny v. Ridgard, cited 4 Bro. Ch. 138 ; Andrew v. Wrigley, 4 Bro. 
 Ch. 124; Blennerhassett v. Day, 2 B. & B. 118; Gregory v. Gregory, 
 Cowp. 201; Jac. 631; Selsey v. Rhoades, 1 Bligh (n. s.), 1; Champion 
 V. Rigby, 1 R. & M. 539; Ex parte Granger, 2 Deac. & Ch. 459 ; Collard 
 V. Hare, 2 R. & M. 675; Norris v. Xeve, 3 Atk. 38; Pryce v. Byrn, 5 Yes. 
 681, cited Campbell v. Campbell, id. 678, 682 ; Mor,se v. Royal, 12 Yes. 
 355; Medlicott v. O'Donnell, 1 B. & B. 156; Hatfield v. Montgomery, 
 2 Porter, 58 ; Bond v. Brown, 1 Harp. Eq. 270 ; Edwards v. Roberts, 7 Sm. 
 & M. 544; Peacock v. Black, Halst. Eq. 535 ; Steele v. Kinkle, 3 Ala. 352; 
 Smith V. Clay, Amb. 645 ; Bond v. Hopkins, 1 Sch. & Lef. 413 ; Hoven- 
 den V. Annesley, 2 Sch. & Lef. 630-640 ; Stackhouse v. Barnston, 10 Yes. 
 466; Ex parte Dewdney, 15 Yes. 496; Kane v. Bloodgood, 7 Johns. Ch. 
 93 ; Dexter v. Arnold, 3 Sumn. 152 ; Decouche v. Savetier, 3 Jolms. Ch. 
 190; Murray v. Coster, 20 Johns. 576; Prevost v. Gratz, 6 Wheat. 481; 
 Hughes V. Edwards, 9 Wheat. 489 ; Elmendorf v. Taylor, 10 Wheat. 168} 
 336
 
 CHAP. VI.] STATUTE OF FRAUDS. [§ 229. 
 
 It is difTicult to state as a general proposition what lengtli 
 of time will bar relief frcjiu the cunsequeueca of a fraud. It 
 is necessarily subject to the ccjuitable discretion of the 
 court, and must depend upon the nature of each case and 
 the circumstances of tlie parties. 
 
 § 229. Therefore no certain time can be stated as a limit 
 beyond wliich relief will not be given. In several cases 
 twenty years has been held to be a bar ; ' and so where one 
 had acquiesced for twenty-five years,^ and twenty-one years,^ 
 and in another case the lapse of eighteen years was held to 
 be a bar.^ So a delay of thirty years,^ of thirty-eight years, "^ 
 of forty-six years J of fifty years,** of twenty-seven years, ^ and 
 of seventeen ycars,*^has been held to be such laches, if unex- 
 
 Miller v. IMcIntire, 6 Pet. 61 ; Sherwood v. Sutton, 5 Mason, 143 ; Wil- 
 liams V. First Pres. Soc, 1 Ohio St. 478. 
 
 1 Smith V. Clay, 3 Bro. Ch. 639, n. ; Ilovenden v. Annesley, 2 Sch. & 
 Lef. 636; Stackhouse v. Barnston, 10 Ves. 466; Pryce i'. Byrn, 5 Ves. 
 681 ; "Ward v. Van Bokkelen, 1 Paige, 100 ; Thompson v. Blair, 3 :\Iurph. 
 593; Farr v. Farr, 1 Hill, Eq. 391 ; Field v. Wilson, 6 B. Mon. 479; Bruce 
 V. Child, 4 Hawks, 372 ; Perry v. Craig, 3 Miss. 525 ; Ferris v. Henderson, 
 12 Penn. vSt. 54; Bank of U. S. v. Biddle, 2 Pars. Eq. 31 ; Walker v. 
 Walker, 16 Serg. & It. 379 ; McDowell v. Goldsmith, 2 Md. Ch. 370 ; 
 Norris's App., 71 Penn. St. 124. In Paschall v. Hinderer, 28 Ohio St. 
 568, it is said : The statute does not apply in equity to bar a trust except 
 in three classes of cases: first, where there is a concurrent remedy at law 
 to which there is a fixed limitation ; second, where there is an open denial 
 of the trust, with notice which requires action by the cestui qxie (rusf. and 
 afterwards a lapse of time which would amount to a bar in law ; and third, 
 where there are circumstances shown which with lapse of time raise a pre- 
 sumption that the trust has been extinguished. 
 
 2 Blennerhassett v. Day, 2 B. & B. 118. 
 ' Selsey v- Ithoades, 1 Bligh (x. s.), 1. 
 
 * Gregory »'• Gregory, Coop. 201; Jac. 631 ; Champion r. Rigby, 1 R. 
 & M. 539 ; Roberts v. Tunstall, 4 Hare, 257. 
 
 6 Harrod i'. Fountleroy, 3 J. J. Marsh. 548 ; Phillips v. Belden, 
 2 Edw. Ch. 1; Page v. Booth, 1 Rob. Va. 161 ; Bond v. Brown, Harp. 
 Eq. 270. 8 Powell v. Murray, 10 Paige, 256. 
 
 ^ Maxwell v. Kennedy, 8 How. 210. 
 
 ® Anderson v. Barwell, 6 Grat. 405. 
 
 » Hayes v. Goode, 7 Ivcigh, 486. 
 
 10 Baker v. Read, 18 Beav. 398; Emerick v. Emerick, 3 Grant. 295. 
 VOL. I. — 22 337
 
 § 229.] CONSTRUCTIVE TRUSTS. [CIIAP. VI. 
 
 plained, as would be a bar to a bill for relief. Under the 
 circumstances of other cases, a delay of twelve years, ^ of 
 eleven years,^ of eighteen years, was held to be no l)ar.3 In 
 Michoud V. Girod the law was elaborately examined and 
 stated by Mr. Justice Wayne as follows, "that within what 
 time a constructive trust will be barred must depend upon 
 the circumstances of the casc.^ There is no rule in equity 
 which excludes the consideration of circumstances, and in 
 a case of actual fraud, we believe no case can be found in 
 the books in which a court of equity has refused to give 
 relief within the lifetime of either of the parties upon whom 
 the fraud is proved, or within thirty years after it has been 
 discovered or becomes known to the party whose rights are 
 affected by it."^ If there is no fraud chargeable on any 
 party, but a simple mistake or accident is made by which a 
 title is changed, more diligence is required, and acquies- 
 cence for a less time will bar the suffering party of his relief. 
 An acquiescence for seventeen years, "^ or for nineteen years,' 
 has been held to be fatal to an application for relief. But 
 where trustees without actual fraud conveyed to themselves, 
 a sleeping on their rights for five years after knowing of the 
 
 1 Butler r. Haskell, 4 Des. 651; Newman v. Early, 3 Tenn. Ch. 714. 
 
 2 Rhinlander v. Barrow, 17 Johns. Ch. 538 ; Mulhallen v. Marum, 3 Dr. 
 & W. 317. 
 
 8 Bell V. Webb, 2 Gill, 263 ; Grisby v. Mousley, 4 De G. & J. 78. 
 
 4 Boone v. Chiles, 10 Pet. 177; Trafford i-. Wilkinson, 3 Tenn. Ch. 701. 
 
 5 Michoud ;'. Girod, 4 How. 561; Trevelyan v. Charter, 11 CI. & Fin. 
 714 ; Pyrn v. Byrne, 5 Ves. 681 ; Malony v. L'Estrange, Beat. 406 ; Car- 
 penter r. Canal Co., 35 Ohio St. 307. Lapse of time is no bar to a trust 
 clearly established ; and in cases where fraud is imputed and proved, length 
 of time ought not, upon principles of eternal justice, to be admitted to re- 
 pel relief. On the contrary, it would seem that the length of time during 
 which the fraud has been successful is rather an aggravation, and calls 
 more loudly for decisive and ample relief. Per Story, J., in Prevost v. 
 Gratz, 6 Wheat. 481. In this case forty years and the death of all the 
 parties was held sufficient to warrant the .presumption of the dis- 
 charge and extinguishment of a trust, proved to have existed by strong 
 circumstances. 
 
 6 Hite V. Hite, 1 B. Mon. 177 ; Emerick r. Emerick, 3 Grant, 295. 
 ' Bruce v. Child, 4 Hawks, 372. 
 
 338
 
 CHAP. VI.] LACHES. [§ 230. 
 
 transaction was held not to bar the cestuis, the court intimat- 
 ing that where no conduct of the cestuia indicated acfjuies- 
 conce, mere delay for less time than twenty years would not 
 alTcctthem.' Where there are two remedies, pursuing one 
 first and waiting till it has run its course before making 
 trial of the other is not laches.^ 
 
 § 230. The statute of limitations is not necessarily con- 
 trolling, as to the time within Avhich relief is to be sought, 
 in the case of a constructive trust by reason of fraud. A 
 demand may be stale, and not entitled to relief under the 
 circumstances of the case, although much less than the time 
 allowed by the statute of limitations has elapsed; and so a 
 I)arty may be entitled to relief although much more than the 
 statute limit has gone by.^ In some States, however, the 
 statute is applied to constructive trusts, unless they are con- 
 cealed or undiscovered. In such States, relief must l)e sought 
 within six years if it is sought by bill in equity to set aside 
 a deed, or to establish a trust.^ In Pennsylvania, the limit 
 is five years. ^ In other States, it has been decided in analogy 
 to the statute which bars a real action after twenty years, 
 that relief must be sought within the twenty years named in 
 the statute.^ In South Carolina, it is held that an action to 
 set aside a deed as fraudulent is equivalent to an action for 
 deceit, and must be brought within the limit of the statute 
 for personal actions.' But if the fraud is unknown to the 
 
 1 Morse v. Hill, 136 Mass. 00, 06, and cases cited. 
 
 2 IJIake /•. Traders' Nat'l Hk., 145 IMass. 13, 17. 
 
 8 Mason r. Crosby, 1 Wood. & M. 342; Piatt v. Vatier, 1 McLean, 146; 
 9 Pet. 40.); Juzan r. Toulmin, 9 Ala. 66'2. 
 
 * Farnhani ;•. Brooks, 9 Pick. 212; Sears v. Shafer, 2 Seld. 208; Wil- 
 liamson r. Field, 2 Saiidf. Ch. 534 ; Pilcher r. Fliiin, 30 Md. 202. 
 
 6 Miller r. Franciscus. 40 Pcnu. St. 335 ; Rider r. Maul, 40 Penn. St 
 376; Asluirst, App. 00 id. 290. 
 
 « Ward r. Van Bokkelen, 1 Paige, 100; Walker v. Walker. 16 Serg. 
 & P. 379; Ferris v. Henderson, 12 Penn. St. 54; Bank of U. S. r. Biddle, 
 2 Pars. Eq. 31; Thompson v. Blair, 3 IMurph. .593; Farr ,: Farr, 1 Hill, 
 Eq, 391; Perry r. Craig. 3 Miss. 525; Field '•. Wilson, 6 B. Men. 479; 
 Bruce r. Child, 4 Hawks, 372 ; IMcDowel r. Goldsmith, 2 Md. Ch. 370. 
 
 T Parkam r. McCravy, 6 Rich. Eq. 143; McDonald r. May, 1 Rich. 
 Eq. 91 ; Bradley v. McBride, Rich. Eq. Cas. 202, is overruled. 
 
 339
 
 § 230.] CONSTKUCTIVE TRUSTS. [CHAP. VI. 
 
 injured party, or is concealed, or he is under disability, or 
 out of the country, or the delay is caused by the defendant,^ 
 the lapse of time will not be laches which bar relief. If a 
 party has knowledge of the fraud, a want of evidence will 
 not excuse his delay,^ nor will poverty and an inability to 
 prosecute the action.^ If there has been great delay, courts 
 will require very clear evidence to impeach a transaction as 
 fraudulent, and to convert the fraudulent party into a 
 trustee.* So, if a great length of time has elapsed, courts 
 will sometimes grant the relief prayed for by setting aside 
 the conveyance, but will decree an account for only six 
 years,^ or from the time of filing the bill,^ and without 
 costs. ^ 
 
 1 Sears v. Shafer, 2 Seld. 268; Richardson v. Jones, 3 G. & J. 163; 
 Doggett V. Emerson, 3 Story, 700; Callender v. Calgrove, 17 Conn. 1; 
 Phalen v. Clarke, 19 Conn. 421 ; Hallett v. Collins, 10 How. 174 ; Rider v. 
 Bickerton, 3 Swanst. 81, n. ; Blennerhassett v. Day, 2 B. & B. 118 ; Trevel- 
 yan v. Charter, 11 CI. & Fin. 714; Bowen v. Evans, 2 H. L. Cas. 257; 
 Warner c. Daniels, 1 W. & M. Ill; Murray v. Palmer, 2 Sch. & Lef. 
 487 ; Aylewood v. Kearney, 2 B. & B. 263 ; Pickett v. Loggan, 14 Yes. 
 215; Purcell v. McNamara, id. 91; Ferris v. Henderson, 12 Penn. St. 
 49; Michoud v. Girod, 4 How. 561; Henry County v. Winnebago, &c., 
 52 111. 299. 
 
 2 Parkam v. McCravy, 6 Rich. Eq. 114. 
 
 8 Roberts v. Tunstall, 4 Hare, 357 ; Maxwell v. Kennedy, 8 How. 210 ; 
 Locke V. Armstrong, 2 Dev. & Bat. 147; Perry v. Craig, 3 Miss. 516. 
 
 4 Chalmers v. Bradley, 1 J. & W. 59 ; Powell v. Murray, 10 Paige, 
 256; Bowen v. Evans, 2 H. L. Cas. 257; Westbrook v. Harwell, 2 McCord, 
 Eq. 112 ; Phillips v. Belden, 2 Edw. Ch. 1 ; Jennings i'. Broughton, 3 De 
 G., M. & G. 126; Chandos v. Brownlow, 2 Ridg. P. C. 397; Montgomery 
 V. Hobson, Meigs, 437; Page r. Booth, 1 Rob. 161. 
 
 ^ Pearce v. Newlyn, 3 Madd. 189. 
 
 « Pickett i\ Loggan, 14 Ves. 215 ; Malony v. L'Estrange, Beatt. 406 ; 
 Mulhallen v. Marum, 3 Dr. & W. 317. 
 
 ■^ Pearce v. Newlyn, 3 Madd. 189 ; Att. Gen. v. Dudley, Coop. 146. 
 
 340
 
 CIIAl'. VII.] TRUSTS BY EQUITABLE CONSTRUCTION. [§ 231. 
 
 CHAPTER VII. 
 
 TRUSTS THAT ARISE BY EQUITABLE CONSTRUCTION IN THE 
 ABSENCE OF FRAUD. 
 
 §2.51. Trust by erjuitablc construction. Illustration. 
 
 § 232. ^'eIlclor's lien for the ijurchase-mouey of this description. States in 
 which it exists. 
 
 § 233. Tliis lien does not contravene the statute of frauds. 
 
 § 2.'54. The nature of tlie interest of the vendor under this lien. 
 
 §§ 235-237. When the lien exists and wiien not. 
 §§ 238, 239. The parties between whom tiie lien exists. 
 
 § 240. Trust by construction wliere a conveyance is made that cannot operate 
 at law. 
 
 § 241. Constructive trust where trust property is transferred by gift from the 
 trustee. 
 
 § 242. Constructive trust where a corporation distributes its capital stock with- 
 out paying its debts. 
 
 § 243. A person holding tlie legal title as security is a constructive trustee. 
 
 § 244. Executor indebted to the testator's estate is a constructive trustee. 
 
 § 245. A per.-ion may become a trustee de son tort by construction. 
 
 § 246. An agent may become a constructive trustee. 
 
 § 247. A person holding deeds or papers or property belonging to another may 
 be a constructive trustee. 
 
 § 246 a. Other equitable trusts. See § 247 a. 
 
 § 281. It frequently happens that courts of equity construe 
 a trust to arise from the contracts and dealings of j)ai-ties, 
 although a trust is not within their contemplation, and there 
 is no fraud, actual or constructive. In this respect, courts 
 of equity proceed in a manner and upon princi])les entirely 
 unknown to courts of law. Thus, if the intention of the 
 testator cannot be carried out without api)ointing a trustee, 
 that will be done. ^ So, if ])arties enter into a valid contract 
 for tlio sale and conveyance of lands, and the vendor neglects 
 or declines to convey, courts of law can only give the vendee 
 an action for damages for a Itreach of the contract, but the 
 legal title to the j)roperty will not be alTected ; it will still 
 
 1 Quigley c (Jridley, 132 Mass. 39, 40. 
 
 341
 
 § 231.] TRUSTS BY EQUITABLE CONSTRUCTIOX. [CIIAr. VII. 
 
 remain in the vendor. A court of equity, however, looks 
 upon tliat as already done, which was agreed to be done.^ 
 From the date of the contract it looks upon the beneficial 
 interest as in the vendee, and the legal title only as in the 
 vendor. By construction the vendor holds the legal title in 
 trust for the vendee.^ Equity proceeds, in personam^ against 
 the vendor and makes him a trustee, and then orders him to 
 execute the trust by conveying the legal title to the person 
 to whom he has agreed to convey it. The purchaser is in 
 like manner a trustee of the purchase-money, and the court 
 will order him to pay it over, and receive a conveyance of 
 the legal title to the land.^ And, a fortiori, if the purchaser 
 has paid the purchase-money the vendor becomes a mere 
 trustee of the legal title for the purchaser;* so, if the pur- 
 chaser has paid part of the purchase-money, the vendor 
 becomes a trustee to the extent of the money paid.^ If the 
 vendor does not own the land, or some part of that which he 
 agrees to convey, and afterwards obtains the title, he will 
 immediately become a trustee for the purchaser. ^ This equity 
 will not be affected by the death or bankruptcy of either 
 party. If the vendor dies before he has conveyed the land, 
 the legal title will descend to his heirs subject to the trust; 
 and they or his legal representatives will be ordered to 
 
 1 Fonbl. Eq. Tr. B. 1, c. 6, § 8. 
 
 2 Wall V. Bright, IJ .«fe W. 500 ; Green v. Smith, 1 Atk. 572 ; Davie v. 
 Beardsham, 1 Ch. Cas. 39 ; Atcherley v. Vernon, 10 Mod. 518; McKay v. 
 Carrington, 1 McLean, 50 ; Crawford v. Bertholf, Saxt. 458 ; Ten Eyck 
 V. Simpson, 1 Sandf. Ch. 244; Kerr v. Day. 14 Penn. St. 112; INIoore v. 
 Burrows, 34 Barb. 173 ; Adams v. Green, id. 176; Wickman r. Robinson, 
 14 Wis. 493; Conway v. Kinsworthy, 21 Ark. 9 ; Dana v. Petersham, 107 
 Mass. 598 ; Currie v. White, 45 N. Y. 822; Reed v. Lukens, 44 Penn. St. 
 200; Lamb v. Davenport, 1 Sawyer, 609; Potter i\ Jacobs, 111 Mass. 32. 
 
 8 Green v. Smith, 1 Atk. 572; Pollexfen v. Moore, 3 Atk. 272; Dexter 
 r. Stewart, 7 Johns. Ch. 52. 
 
 * Waddington v. Banks, 1 Brock. 97; Fenno v. Sayre, 3 Ala. 458; Brown 
 V. East, 5 Mon. 415 ; Payne v. Atterbury, Harring. Ch. 414 ; Neeson v. 
 Clarkson, 4 Hare, 97. 
 
 5 Wythes v. Lee, 3 Drew. 396 ; AVestmacott v. Robins, 4 De G., F. & 
 J. 390. 
 
 6 Tyson i-. Passmore, 2 Barr, 122 ; McCall v. Coover, 4 Watts & S. 151. 
 
 342
 
 CHAP. VII.] vendor's lien. [§ 232. 
 
 exccuto tlie tnist.^ But tlie lien or trust will not exist 
 where the jiurchascr by his own fault ahandons the eoutract,!* 
 or where the contract is lor any eause illegal.^ If the pur- 
 chaser abandons the contract because the vendor cannot fulfil 
 it as agreed upon, as if it is to give a good title, the trust or 
 lien will not continue.'* Wherever one wrongfully obtains 
 the legal title to land which in c(iuity and good conscience 
 belongs to anotlier, C(piity will raise a constructive trust.^ 
 
 § 232. Similar to this is tlie constructive lien or triist in 
 favor of a vendor for his unpaid purchase-money; for the 
 vendor of land has a lien on the land for the amount of the 
 purchase-money, not only against the vendee himself and his 
 heirs and other privies in estate, but also against all subse- 
 quent purchasers having notice that the purchase-money 
 remains unpaid. To the extent of the lien, the vendee be- 
 comes a trustee for the vendor; and the vendee's heirs, and 
 all other persons claiming under him or them with notice, 
 are construed by courts of equity to be trustees. This doc- 
 trine is well established in the juris])rudence of England,^ 
 and it has been recognized, and acted upon, in many of the 
 United States. '^ The principle upon which the lien depends 
 
 1 Paul r. Wilkins, Toth. 106; Barker v. Hill, 2 Ch. R. 113 ; Winged v. 
 Lefebury, *2 Eq. Cas. Ab. 32, pr. 43 ; Orlebar v. Fletcher, 1 P. Wins 737 ; 
 Bowles r. Bowles, 6 Yes. 95, n. ; Whitworth v. Davis, V. & B. 54") ; Tiernan 
 r. Roland, 15 Penn. St. 429 ; Rutherford v. Green, 2 Ired. Eq. 121 ; Jacobs 
 r. Lake, id. 28G ; Newton r. Swazey, 8 N. PI. 9; Glaze /•. Drayton, 1 Dev. 
 109. In Massachusetts, the probate court or the supreme judicial court 
 may autliorize the executor or administrator, or the guardian of an insane 
 person, to convey in such cases. Public Stat. 1882. 
 
 2 Dinn v. Grant, 5 De G. & Sm. 451. 
 
 8 Ewiiig V. Osbaldiston, 2 My. & Cr. 88. 
 
 * Wythes V. Lee, 3 Drew. 396. 
 
 6 Lakin v. S. B. M. Co., 11 Sawy. (U. S.) 231. 
 
 « See Llackreth v. Symmons, 15 "Ves. 329, where Lord Eldon cited and 
 commented upon all the cases previous to that time. See s. c. 1 Lead. 
 Cas. P2q. 336, where the later English cases are quoted and also the Ameri- 
 can cases. Lemon v. Whitely, 4 Rus. 423 ; Chapman v. Tanner, 1 Vern. 
 267; Blackburn i\ Gregson, 1 Bro. Ch. 420; Burgess r. Wheat, 1 Eden, 
 211; 1 W. Black. 150. 
 
 ■^ In Elaine the doctrine is entirely rejected as inconsistent with the 
 
 34:3
 
 § 232.] TRUSTS BY EQUITABLE CONSTRUCTION. [CHAP. VII. 
 
 is this : that a person who has obtained the estate of another 
 ought not, in conscience, to keep it, and not pay the consid- 
 
 registry laws and policy of the State; Philbrook v. Delano, 29 Maine, 415. 
 In New Hampshire the court has left it undecided : Arlin v. Brown, 44 
 N. II. 102, and see Buntin v. French, 16 X. H. 592. In Vermont the 
 doctrine was established in an able judgment by Ch. J. Kedfield : Manly 
 V. Slason, 21 Vt. 271, but abolished by Stat. 1851. In Massachusetts it 
 is rejected: Ahrend v. Odiorne, 118 ]\Iass. 261. In Connecticut it is un- 
 decided : Atwood V. Vincent, 17 Conn. 575. See AVatson v. Wells, 5 Conn. 
 468; Dean v. Dean, 6 Conn. 285; Meigs v. Dimock, id. 458; Chapman v. 
 Beardsley, 31 Conn. 115. In Rhode Island it is recognized ; Kent, Adm'r, 
 V. Gerhard, et ux. 12 R. I. 92. In New York it is well established : Staf- 
 ford V. Van Renselaer, 9 Cow. 316; Garson v. Green, 1 Johns. Ch. 3U8 ; 
 White V. Williams, 1 Paige, Ch. 502 ; Fish v. Ilowland, id. 20 ; Warner v. 
 Van Alstyne, 3 id. 513 ; Shirly v. Sugar Ref., 2 Edw. Ch. 505 ; Dubois 
 V. Hall, 43 Barb. 26 ; Warren v. Fenn, 28 id. 333; Champion v. Brown, 
 
 6 Johns. 402. In New Jersey, also : Vandoren v. Todd, 2 Green, Ch. 397 ; 
 Brinkerhoff v. Vansciven, 3 id. 251 ; Herbert v. Scofield, 1 Stockt. Ch. 
 492. In Pennsylvania the doctrine is rejected, though there may be such 
 a conditional title conveyed, as will give the vendor a preference for the 
 purchase-money over all others claiming under the vendee: Irvine v. Camp- 
 bell, 6 Binn. 118; Stouffcr v. Coleman, 1 Yeates, 393; Kauffelt v. Bower, 
 
 7 Serg. & R. 64; Semple v. Burd, id. 286 ; Bear v. Whisler, 7 Watts, 147; 
 Zentmyer r. Miltower, 5 Penn. St. 403 ; Stephen's App., 38 id. 9 ; Springer 
 V. Walters, 34 id. 328; Hepburn v. Snyder, 3 id. 72 ; Megargel v. Saul, 
 3 Whar. 19 ; Cook v. Trimble, 9 Watts, 15; Heist v. Baker, 49 Penn. St. 
 9 ; Straus's App., id. 353. In Delaware the point is undecided : Budd v. 
 Basti, 1 Ilarr. 69. In Maryland it is well established : White v. Casa- 
 nave, 1 liar. & J. 106 ; Ghiselin v. Ferguson, 4 Har. & J. 522; Pratt v. 
 Van Wyck, 6 id. 495; Magruder v Peter, 11 id. 217; Repp r. Repp, 12 
 id. 341 ; Moreton v. Harrison, 1 Bland, Ch. 491; Carr i'. Hobbs, 11 Md. 
 285 ; Hummer v. Schott, 21 Md. 307 ; Hall v. Jones, id. 439; Bratt v. 
 Bratt id. 578. In Virginia it was long acted upon : Graves v. McCall, 1 
 Call, 414; Handley v. Lyons, 5 Munf. 342 ; Duvall v. Bibb, 4 Hen. & M. 
 113; Hatcher v. Hatcher, 1 Rand. 53; Redford v. Gibson, 12 Leigh, 332. 
 But it is now abolished by the code: Yancy i\ Manck, 15 Grat. 300; 
 Hempfield R. R. Co. v. Thornbury, 4 W. Va. 261. In North Carolina, 
 after being acted upon for some time, it was overruled : Cameron v. 
 Mason, 7 Ired. Eq. 180; Gabee v. Sneed, 1 Dev. & B. 333; AVamble v. 
 Battle, 3 Ired. Eq. 182 ; Henderson v. Burton, id. 259. In South Caro- 
 lina it was never acted upon : Wragg v. Comptroller-Gen., 2 Des. 509. 
 In Georgia it is acted upon : INIarine Fire Ins. Co. v. Early, Charl. 279 ; 
 Hampden r. INIiller, Dud. 120 ; Mounce r. Byars, 16 Ga. 469 ; Chance v. 
 McWharter, 26 Ga. 315; Stile v. Griffin, 27 Ga. 504; Minis v. Lockett, 
 
 344
 
 CHAP VII.] VENDOIi'S LIEN. [§ 232. 
 
 eratioii-moncy in full; and a third jtcrson, who receives the 
 estate with full knowledge that it has not been paid for, 
 ought not, as a matter of eijuity, to be allowed t<j keep it 
 
 23 Ga. 237; Minis c. Maccni and Western Railroad, 3 Kelly, 333. Also 
 in Florida : Woods r. Bailey, 3 Fla. 41. And so in Alabama: liurns r. 
 Taylor, 2'i Ala. 2iJo; Haley i: Bennett, 5 Porter, 452 ; Koper v. McCook, 
 
 7 Ala. 31S; Griflin r. Cainack, 30 Ala. G95. So in Mississippi : Trotter 
 V. Erwin, 27 ]\Iiss. 772 ; Stewart v. Ives, 1 Sm. & M. 197; Tanner v. 
 Hicks, 4 id. 294; Upshaw v. Hargrave, (J id 286; Dunlop i: Burnett, 5 id, 
 702 ; Servis v. Beatty, 32 Miss. 52. It is established in Texas : Pinchain 
 V. Collard, 13 Tex. 333 ; Wheeler v. Lane, 21 Tex. 583 ; McAlpin v. Bur- 
 nett, 23 Tex. 649. So in Arkansas : English v. liussell, Hemp. 35; Scott 
 r. Orbinson, 2 Ark. 2U2 ; Shall /■. Biscoe, 18 Ark. 142. So in Missouri: 
 Marsh r. Turner, 4 ]Mo. 53; IMcKnight v. Brady, 2 ^lo. 110; Davis f. 
 Lamb, 30 ]\Io. 441 ; Bledsoe v. Games, id. 448 ; Delassus v. I'oston, 19 
 Mo. 425. So in Tennessee : Brown v. Vanlier, 7 Humph. 239 ; Eskridge 
 V. McClure, 2 Yerg. 84; Marshall ;•. Christmas, 3 Humph. 616; Campbell 
 V. Baldwin, 2 Humph. 248 ; Uzzell v. .Muck, 4 Humph. 310 ; :\I.dley r. 
 Davis, 5 Humph. 387 ; Norvell c. Johnson, id. 489 ; Taylor r. Hunter, id. 
 560. So in Kentucky : Muir v. Cross, 10 B. Mon. 277; Fowler r. Rust, 
 2 A. K. :Marsh. 294 ; Taylor v. Alloway, 2 Litt. 216 ; ]\Iosely v. Garrett, 
 
 I J. J. Marsh. 212; Richardson v. Baker, 5 id. 323; Cox v. Fenwick, 3 
 Bibb, 183. So in Ohio: Williams v. Roberts, 5 Ohio, 35; Tiernan v. 
 Bean, 2 Ham. 383; Magham r. Coombs, 14 Ohio, 428 ; Neil v. Kinney, 11 
 Ohio St. 58. So in Indiana : McCarty i: Pruet, 4 Tnd. 46 ; Lagow v. 
 Badollft, 1 Blackf. 416; Evans v. Goodlett, id. 246; Merritt r. Wiles, 18 
 Ind. 171; Cox r. Wood, 20 Ind. 54. So in Illinois: Trustees r. Wright, 
 
 II 111. 603. So in Michigan : Sears v. Smith, 2 Mich. 243 ; Carroll r. Van 
 Renselaer, Ilarring. Ch. 225. Also in Iowa : Pierson r. David, 1 Iowa, 
 23; Rakestraw v. Hamilton, 14 Iowa, 147; Patterson v. Linder, id. 414; 
 Tupple r. Viers, id. 515; (Jrapengether r. Fejervary, 9 Iowa, 163; Hays 
 r. Horiiie, 12 Iowa, 61. So in Wisconsin : Toby r. j\lcAllister, 9 Wis. 
 463. Also in Minnesota : Daughaday r. Payne, 6 Minn. 443. In Kansas 
 there is no lien : Simpson v. Munder, 3 Kans. 172. And so in Nebraska : 
 Edmiiistor r. Iliggins, 6 Neb. 265. Tlie lien exists in California: True- 
 body r. .lacobson, 2 Cal. 269; Taylor c. McKiiiney, 20 Cal. 61S; Baum r. 
 Grigsby, 21 Cal. 172 ; Sparks r. Hess, 15 Cal. 186 ; Walk'-r r. Sedgwick, 
 
 8 Cal. 308; Cahoon v. Robinson, 6 Cal. 225 ; Salmon r. Hoffman, 2 Cal. 
 138 ; Burtt v. AVilson, 2S Cal. 632. The same doctrine is held in the 
 courts of the United States : Chilton i-. Braiden, 2 Black, 458 ; CJilman r. 
 Brown, 1 Mason, 101 ; 4 Wheat. 255 ; Bayley c Greenleaf, 7 Wheat. 46; 
 Bush r. IMarshall, 6 How. 284 ; f! alloway v. Finley, 12 Pet. 264 ; McLearn 
 V. McLellan, 10 Pet. 640 ; Cole i--. Scott, 2 Wash. 141. 
 
 345
 
 § 233.] TRUSTS BY EQUITABLE CONSTRUCTION. [CHAP. VII. 
 
 without paying for it.^ It will at once be seen, that, as 
 between the parties, this lien is founded in natural justice.^ 
 The civil law gave a lien on both real and personal property 
 to the vendor for the purchase-money, and the principle was 
 early introduced into English equity, as to real estate.^ 
 Courts administer the equity by converting the purchaser 
 into a trustee.* They, in effect, say, that if one conveys his 
 land and takes no security for the purchase-money, the pur- 
 chaser shall be a trustee of the land for the vendor until it 
 is paid.^ 
 
 § 233. It has been objected that the creation of this lien 
 or trust by courts of equity is a repeal of the statute of 
 frauds. It is answered, that the raising of such a trust is no 
 more in contravention of the statute than the creation of any 
 other resulting or constructive trust by operation of law 
 upon the acts and contracts of parties, where they do not 
 contemplate or intend a trust. ^ It is further objected, in the 
 United States, that the raising of such trusts is contrary to 
 the policy of the registry laws which require all deeds and 
 liens to be matter of record.*^ But, as between the parties, 
 the raising of a trust to secure the purchase-money is no 
 more against the policy of the registry laws than is the rais- 
 ing of a resulting trust to secure the actual purchaser, where 
 the deed is taken in the name of another, or the raising of a 
 constructive trust where one man has defrauded another of 
 his title. In either case there is a secret trust that does not 
 appear upon the records of the registry. So, as against third 
 
 1 Hughes V. Kearney, 1 Sch. & Lef. 135 ; Chilton v. Braiden, 2 Black. 
 458. 
 
 2 Inst. Lib. 2, tit. 1, § 41; Blackburn v. Grei^son, 1 Cox, 100; Chap- 
 man V. Tanner, 1 Vern. 267. 
 
 8 Mackreth v. Symmons, 15 Yes. 337; Dig. Lib. IS, tit. 1, c. 19, 22, 
 53 ; Domat, B. 3, tit. 1, § 5, art. 4. 
 
 * Ibid.; Blackburn v. Gregson, 1 Bro. Ch. 420; Walker, Am. Law, 
 315. 
 
 6 Ibid. 
 
 * jMackreth v. Symmons, 15 Ves. 329 ; Manly v. Slason, 15 Vt. 271. 
 f Philbrook v. Delano, 29 Maine, 415. 
 
 346
 
 CHAP. VII.] vendor's lien. [§ 234. 
 
 persons who take the land with notice that the purchase- 
 money is unpaid, the jiolicy of the registry laws apjdies in 
 the sanu! manner that it applies to other unrecorded deeds 
 or liens.' Thus, if a second purchaser or nujrtgagee has 
 notice of a prior sale or morty;nge for a valualjJe considera- 
 tion, he cannot, hy putting his deed or mortgage first on 
 record, deprive the prior purchaser or mortgagee of his title 
 or security.^ It is, however, true that many courts have 
 looked upon this trust with disfavor, although they have 
 recognized its existence,^ and some States have formally 
 aholishcd it by statute.* (a) While other courts deem it 
 highly erpii table, and eminently consistent with the most 
 perfect ideas of moral justice.^ 
 
 § 234. In most cases the cestui que trust has an equitable 
 estate in the land to which his trust attaches, an estate 
 which he may sell, assign, or devise ; but a vendor having 
 only a lien for his purchase-money, has no estate in the land. 
 It is neither ^us in re nor jus ad rem. It is the mere possi- 
 bility of a right, until it is established by a final decree of a 
 court in each casc.^ (b) It is not a direct trust in the land 
 
 1 Manly v. Slason, 21 Vt. 271. 
 
 2 Bayley v. (ireenleaf, 7 Wheat. 51; Conover v. Warren, 1 Gil. 502; 
 Brawley r. Catron, 8 Leic^h, .j27 ; Aloore v. Halcombe, 3 Leigh, GOO. 
 
 ^ Vermont and Virginia, ut sup, 
 
 4 Ibid. 
 
 5 Manly v. Slason, 21 Vt. 278. 
 
 « Gilraan r. Brown, 1 Mason, 21; I Lead. Cas. in Eq. 272-275; Wil- 
 liams r. Young, 17 Cal. 403 ; 21 Cal. 227. 
 
 (a) In some of the States, as, e.g. 43 W. Va. 102 ; Ansley v. Pasahro, 
 
 in West Virginia and Nebraska, 22 Neb. 6G2. 
 
 this lien does not exist unless ex- (i) The lien applies to equitable 
 pressly reserved in a conveyance; as well as legal interests: Board r. 
 when so reserved it amounts to a Wilson, 34 W. Va. COO ; and to con- 
 mortgage. See Fisher r. Shrop- veyaiices by quit-claim as well as 
 shire, 147 U. S. 133; Roanoke B. warranty deeds. Robinson r. Ap- 
 & L. Co. V. Simmons (Va.), 20 pleton, 124 111. 276. The lien is 
 S. E. Rep. 955 ; McKeown v. Col- joint, -when different vendors join 
 lins, 33 Fla. 276 ; Scraggs r. Hill, in one contract. Bri.-<co r. Miuah 
 
 347
 
 § 235.] TRUSTS BY EQUITABLE CONSTKUCTION. [CHAP. VIL 
 
 itself, but a collateral trust for the security of the debt. It 
 is in fact a remedy for a debt, and not a right of property. 
 It follows, that the remedy can be enforced only so long as 
 the debt can be enforced ; that where an action for the pur- 
 chase-money is gone, the right to enforce the lien, or the lien 
 itself, is gone also. This lien or trust continues so long as 
 the purchase-money remains unpaid, or so long as an action 
 can be maintained for its collection. If the action is barred 
 by the statute of limitations, the remedy to enforce the lien 
 is gone also.^ In this respect the vendor's lien differs from 
 a mortgage, which may be enforced against the land after all 
 right to enforce the debt against the mortgagor is barred by 
 the statute of limitations, or by his discharge in bankruptcy. 
 If a cestui que trust conveys his equitable estate in land, he 
 will have the same lien upon it for the purchase-money as in 
 the case of a legal estate. ^ 
 
 § 235. The lien exists, notwithstanding the deed recites^ 
 or acknowledges * that the consideration is paid, and notwith- 
 standing a receipt of the payment is indorsed upon the back 
 
 1 Borst I'. Corey, 15 N. Y. 505 ; Sheratz v. Nicodemus, 7 Yerg. 9 ; Trot- 
 ter V. Erwin, 27 Miss. 772 ; Addams v. Hefferman, 9 Watts, 530 ; Alex- 
 ander V. McMurray, 8 Watts, 504. But in Maryland it was held to be a 
 direct trust and property in the land, like a mortgage, which could be en- 
 forced after the personal obligation of the vendee was gone. Moreton v. 
 Harrison, 1 Bland, 491 ; Lingan v. Henderson, id. 236. And see Relfe 
 V. Relfe, 34 Ala. 500. 
 
 2 Iglehart v. Armiger, 1 Bland, 519 ; Galloway v. Hamilton, 1 Dana, 
 576 ; Lignon v. Alexander, 7 J. J. Marsh. 288 ; Stewart u. Hatton, 3 id. 
 178. But see Bayley v. Greenleaf, 7 Wheat. 46 ; Schnebly v. Ragan, 
 7 Gill & J. 120. 
 
 3 Thornton v. Knox, 6 B. Hon. 74 ; Mackreth v. Symraons, 15 Ves. 
 337; Hughes v. Kearney, 1 Sch. & Let. 135; Winter (;. Anson, 3 Russ. 
 488; 1 Sim. & S. 434; Saunders v. Leslie, 2 B. & B. 514. 
 
 * Gilman v. Brown, 1 Mason, C. C. 214; Sheratz v. Nicodemus, 7 Yerg. 
 9; Ewbank r. Boston, 5 Mon. 287; Redford v. Gibson, 12 Leigh, 344; 
 Tribble c. Oldham, 5 J. J. Marsh. 144. 
 
 C. M. Co., 82 F. R. 952; 89 id. 891. not apply in favor of agreements 
 
 Its amount must be capable of ex- to support during life. Peters v. 
 
 act ascertainment ; hence it does Tunell, 43 Minn. 473. 
 348
 
 CHAP. VII.] vendor's lien. [§ 236. 
 
 of the deed,' if in fact it is not paid. And if the con.sidera- 
 tion is not to be paid until after the death of the grantor, 
 and then only upon a contingency, as if no claim for dower 
 is made in the mean time, the lien will arise ;^ but if the 
 consideration of the sale is something other than money, as 
 if the vendor makes the sale for the consideration of his 
 future support, no lien will arise ;» nor if in consideration 
 that his debts are paid;* nor if the amount of the considera- 
 tion is uncertain and unli(iuidated.^ Nor if it api)ears that 
 the consideration is that the vendee shall enter into cove- 
 nants to do certain things.^ If a note or bond is taken for 
 the consideration, and includes anything other than the 
 price of the land sold, the lien will not attach.'^ 
 
 § 236. Where a vendor takes security for the purchase- 
 money, it is often a difficult question to determine whether 
 he has there])y abandoned or waived his lien. Much of the 
 litigation upon vendor's liens has arisen over this (juestion, 
 — whether the lien was abandoned or not by the parties. Of 
 course, it is a pure question of fact or intention. By the 
 civil law, the taking of any kind of security was an abandon- 
 ment of the lien upon the property ; this rule has not pre- 
 vailed in England. The rule in England is, that prima facie 
 the vendor has a lien for the purchase-money : the presump- 
 tion in favor of this lien continues until it is displaced by 
 satisfactory evidence that the lien has been abandoned or 
 extinguished. The burden is on the vendee to repel the 
 presumption. The taking of security by the vendor is evi- 
 
 1 Ibid. 
 
 2 Kedford r. Catron, 8 Leigh, 528. 
 
 8 ArUn V. Brown, 44 N. II. 10 ."3 ; McCandlish r. Keen, 13 C.rat. 615; 
 Brawley v. Catron, 8 Li'igh, 528; McKillip c. McKillip, 8 Barb. 552. 
 
 ■• Chapman i'. Beardley, 3 Conn. 115. 
 
 6 Ibid. 
 
 « Buckland c. Pocknell, 13 Sim. 406 ; Dixon j). Gayfere, 17 Beav. 421 ; 
 21 Beav, 118; Clarke c. Boyce. 3 Sim. 499; Parrott r. Sweetland, ^^ My. 
 & K. 655. In Alabama the lien was held to arise in case of an exchange 
 of lands. Burns r. Taylor, 23 Ala. 255. 
 
 ' McCandlish r. Keen, 13 Grat. 605 ; James v. Bird, 8 Leigh, 51. 
 
 349
 
 § 236.] TRUSTS BY EQUITABLE CONSTRUCTION. [CIIAP. VII. 
 
 dcnce upon that question, more or less satisfactory accord- 
 ing to the nature of the security taken and the circumstances 
 under which it is taken. ^ It has been held that the taking 
 of a mortgage on another estate was not conclusive evidence 
 that the lien was abandoned ; ^ and so, bills or notes indorsed 
 by third persons, or bonds with a surety, are not necessarily 
 conclusive evidence that the vendor in taking them waives 
 his licn.^ It may be, in such cases, that the vendor accepted 
 them as evidences of the amount of the purchase-money 
 and debt, or as security in addition to his lien. But if the 
 security taken is totally distinct and independent, it will be 
 very strong evidence that it was intended to be substituted 
 in place of the lien;* and if it is in any way inconsistent 
 with the continued existence of the lien, it will, of course, 
 be conclusive evidence that the lien was abandoned or ex- 
 tinguished.^ Lord Eldon, after a careful review of the 
 authorities, came to the conclusion that every case depended 
 upon its own peculiar facts and circumstances ; that different 
 judges would have determined the same case differently; and 
 that there was no general rule that was satisfactory ; and he 
 adds, "If I had found it laid down in distinct and inflexible 
 
 1 Nairn v. Prowse, 6 Ves. 759 ; Mactreth v. Symmons, 15 Ves. 342 
 Garsou r. Gi'een, 1 Johns. Ch. 308 ; Lewis v. Caperton, 8 Grat. 148 
 Plowman v. Riddle, 14 Ala. 169; Hughes v. Kearney, 1 Sch. & Lef. 136 
 Saunders r. Leslie, 2 B. & B. 514 ; Bradford v. Marvin, 2 Fla. 463. 
 
 2 Ibid. ; Saunders v. Leslie, 2 B. & B. 514. 
 
 ^ Hughes I'. Kearney, 1 Sch. & Lef. 135 : Gibbons r. Baddall, 2 Eq. 
 Ab. 682; Grant v. Mills, 2 Yes. & B. 306; Cooper v. Spottiswood, Taml. 
 21; Ex parte Peake, 1 Madd. 349 ; Ex parte Loring, 2 Rose, 79 ; Saun- 
 ders V. Leslie, 2 B. & B. 514 ; Winter v. Anson, 3 Russ. 488; 1 S. & S. 
 434; Fawell v. Heelis, Amb. 724; Frail v. Ellis, 17 Eng. L. & Eq. 457 ; 
 Buckland v. Pocknell, 13 Sim. 406 ; Blair v. Bromley, 5 Hare, 542 ; 2 
 Phill. 354; Hewitt v. Loosemore, 9 Hare, 449; Kyles v. Tait, 6 Grat. 44; 
 Blackburn v. Gregson, 1 Bro. Ch. 420; Coppin v. Coppin, 2 P. Wms. 291; 
 Clark v. Royle, 3 Sim. 499; Elliott v. Edwards, 3 Bos. & P. 181. 
 
 * Ibid. ; Gilman v. Brown, 1 Mason, 191 ; Cood i'. Pollard, 9 Price, 
 544; 10 Price, 109; Parrott v. Sweetland, 3 My. & K. 655; Nairn t-. 
 Prowse, 6 Ves. 752 ; Mackreth v. Symmons, 15 Ves. 342. 
 
 5 ]\Ianly v. Slason, 21 Vt. 271 ; Hallock v. Smith, 3 Barb. 267 ; Ex 
 parte Parkes, 1 Glyn. & Jam. 228. 
 
 350
 
 CHAP. 
 
 VII.] 
 
 vendor'6 lien. 
 
 [§ 237. 
 
 terms, that when the vendor takes security for the considera- 
 tion he has no lien, that would be satisfactory." ' 
 
 § 237. In the United States, the rule that Lord Eldon said 
 would be satisfactory sultstantially prevails. Thus, if the 
 vendor does any act which manifests an intention to rely 
 upon any security independent of the lien, he will be held to 
 have waived it; 2 as if he accejit a mortJ,^^ge on other prop- 
 erty,'^ or a bond or note with a third person as surety* or 
 indorser,^ or if he takes a pledge of stock as collateral, ^ (a) 
 he will be held to have waived his lien. So, if he takes a 
 
 ^ Mackreth r. Symmons, 15 Yes. 312. 
 
 '^ Blackburn r. Gregson, 1 Bro. Ch. 424, and notes by Perkins ; Buntin 
 V. French, 16 X. H. 592; Coit v. Fougera, 36 Barb 195; Griffin v. Blan- 
 chard, 17 Cal. 70 ; Phelps v. Conover, 25 111. 309; Selby v. .Stanley, 4 Minn. 
 Go; Ilaue v. Van Deusen, 32 Barb. 92; Parker v. Sewell, 24 Tex. 238; 
 Dibble r. Mitchell, 15 Ind. 435. 
 
 8 Richardson r. Ridgely, 8 Gill & J. 87 ; White v. Dougherty, 1 IVIart. 
 & Y. 309; Young r. Wood, 11 B. Mon. 123; Mattix v. Weand, 19 Ind. 
 151 ; Harris v. Harlan, 14 Ind. 104 ; Shelby v. Perrin, 18 Tex. 515 ; Cam- 
 den V. Vail, 23 Cal. 633 ; Hadley v. Pickett, 25 Ind. 450. 
 
 * Boon V. Murphy, 6 Blackf. 272; Williams v. Roberts, 5 Ohio, 35; 
 Mayham v. Coombes, 14 Ohio, 428; Wilson v. Graham, 5 Munf. 297; 
 Francis v. Ilazelrigg's Ex'rs, Ilardin, 48; Way v Patty, 1 Carter, 102; 
 Burger v. Potter, 32 111. 60; Sears v. Smith, 2 Mich. 243; Porter v Du- 
 buque, 20 Iowa, 440. 
 
 6 Foster r. Trustees, 3 Ala. 302; Gilman v. Brown, 1 ]\Iason, 191; 
 4 Wheat. 255; Marshall r. Christmas, 3 Humph. 616; Burke v. Gray, 
 6 How. (Miss.) 527; Conover v. Warren, 1 Gilm. 498; Bradford v. Mar- 
 vin, 2 Fla. 403. 
 
 6 Lagow V. Badollet, 1 Blackf. 416. 
 
 (a) Or obtains a judgment for 
 the price in wliole or in part, and 
 sells the land thereunder. Dicka- 
 son r. Fisher, 137 Mo. 342. Merely 
 obtaining judgment on the note does 
 not waive the lien. Zwingle v. Wil- 
 kinson, 94 Tenn. 240 ; Strain v. 
 Walton, 11 Texas C. App. 624. 
 
 Till' lien is waived by accepting 
 in place thereof security by a mort- 
 
 gage upon the land or by a surety. 
 Boies r. Benhara, 127 N. Y. 620; 
 Baker v. Updike, 155 111. 54; Rob- 
 bins r. Masteller, 147 Ind. 122; 
 Kinney v. Eusminger, 94 Ala. 536 ; 
 Hamniett r. Stricklin, 99 Ala. 616; 
 Fields V. Drennen, 115 Ala. 558; 
 see Slide & Spur Gold Mines v. Sey- 
 mour, 153 U. S. 509 
 
 351
 
 § 237.] TRUSTS BY EQUITABLE CONSTRUCTION. [CIIAP. VII. 
 
 mortgage on the same land sold for part of the purchase- 
 money, or for the whole, ^ he will be held to have waived his 
 lien for the remainder.'^ But in these cases the presumption 
 that the vendor intended to waive his lien by taking such 
 securities may be rebutted by any satisfactory evidence that 
 it was not intended that the lien should be waived.^ On the 
 other hand, the presumption of a lien may be rebutted, 
 though no security is taken, by satisfactory evidence that it 
 was intended that the lien should not be relied on.* But, 
 generally, the mere taking of the vendee's note, or bond, or 
 bill, or check, ^ {a) or the renewal of these evidences of 
 debt,^ will not be sufficient evidence that the vendor intended 
 to waive his lien.'^ But any conduct in the vendor that 
 makes it unjust, unfair, or inequitable for him to insist upon 
 the lien, will discharge it.^ If worthless securities are 
 
 ^ Little V. Brown, 2 Leigh, 3.o5 ; ITadley v. Pickett, 25 Ind. 4.50. But 
 see to the contrary, Boos v. Ewing, 17 Ohio, 520; Baum v. Grigsby, 21 
 Cal. 172. 
 
 2 Brown v. Oilman, 4 Wheat. 291; Fish v. Rowland, 1 Paige, 30; 
 Phillips V. Saunderson, 1 Sm. & M. 465. Even if the mortgage is void. 
 Camden i'. Vail, 23 Cal. 633; Way v. Patty, 1 Ind. 102. 
 
 8 Miras I'. Macon and Western R. R., 3 Kelly, 333; Campbell v. Bald- 
 win, 2 Humph. 248; Kyles v. Tait, 6 Grat. 48; Tiernan v. Tburman, 
 14 B. Mon. 277; Sears v. Smith, 2 Mich. 243; Daughaday i;. Paine, 
 6 Minn. 443. 
 
 * Clark V. Hunt, 3 J. J. Marsh. 553; Phillips v. Saunderson, 1 Sm. & 
 M. 462; Bedford v. Gibson, 12 Leigh, 332; Scott v. Orbinson, 21 Ark. 202. 
 
 6 Honore i'. Bakewell, 6 B. Mon. 67; Baum v. Grigsby, 21 Cal. 172; 
 Walker v. Sedgwick, 8 Cal. 398. 
 
 « Mims V. Lockett, 23 Ga. 237. 
 
 ' Cox V. Fenwick, 3 Bibb, 183; Evans v. Goodlet, 1 Blackf. 246; Tay- 
 lor V. Hunter, 5 Humph. 569 ; Garson v. Green, 1 Johns. Ch. 308; White 
 V. Williams, 1 Paige, 502 : Clark r. Hunt, 3 J. J. Marsh. 553; Thornton 
 V. Knox, 6 B. Mon. 74 ; Aldridge i-. Dunn, 7 Blackf. 249 ; Ross v. Whitson, 
 
 6 Yerg. 50 ; Tompkins v. Mitchell, 2 Rand. 428 ; Truebody v. Jacobson, 
 2 Cal. 269; Pinchain u. Collard, 13 Tex. 3.33; Sheratz u. Nicodemus, 
 
 7 Yerg. 9 ; Manly v. Slason, 2 Vt. 271; Baum v. Grigsby, 21 Cal. 172. 
 
 « Radford v. Gibson, 12 Leigh, 343: Fowler v. Rust, 2 Marsh. 294; 
 
 (a) Mansfield v. Dameron, 42 W. Va. 794; Knight v. Knight, 113 
 Ala. 597. 
 
 352
 
 CHAP, vii.] vendor's lien. [§ 238. 
 
 fniudulcntly imposed upon tlie vendor, he will retain his 
 lien.' 
 
 § 238. It has been said before, that the lien for the pur- 
 chase-money is not an estate in the land, nor is it a charge 
 on the land ; but it is an equity between the parties, their 
 representatives or privies in law or estate, to be resorted to 
 in case of failure of payment by the vendee. It is a possibil- 
 ity that may be perfected by proceedings in equity into an 
 actual estate or interest in the land.^ (a) Having such a 
 character, it is generally considered to be a personal privi- 
 lege in the vendor, which descends to his heirs or represen- 
 tatives with the debt for the purchase-money, but which 
 cannot be assigned to a third person, with or without the 
 bond, note, bill, or check which the vendee gave for the 
 consideration. 3 (J) If one of several purchasers pays the 
 
 Clark V. Hunt, 3 J. J. Marsh. 553 ; Phillips v. Saunderson, 1 Sm. & M. 
 46-2; McCown r. Jones, li Tex. G82 ; Scott v. Orbinson, 21 Ark. 292; 
 Clamer l: Kawlings, 9 S. & M. 122; Lynch v. Dearth, 2 Penn. St. 101. 
 
 1 Coit r. Fougera, 36 Barb. 195 ; Toby v. McAllister, 9 Wis. 463. 
 
 2 Young t'. Williams, 17 Cal. 403 ; 21 Cal. 227 ; Keith v. Horner, 32 
 111. 524. 
 
 8 Dixon V. Dixon, 1 Md. Ch. 220; Wellborn r. Williams, 8 Ga. 258; 
 Green v. Demoss, 10 Humph. 371; Walker r. Williams, 30 Miss. 105; 
 Briggs r. Hill, G How. (Miss.) 362; Shall v. Biscoe, 18 Ark. 142; Brush 
 V. Kinsley, 14 Ohio, 20 ; Horton v. Horner, id. 437 ; Sheratz v. Xicode- 
 
 (o) The lien is enforceable in though not itself assignable. First 
 
 equity, although the legal remedy Nat. Bank c. Salem Capital F. M. 
 
 has not been exhausted. Burgess Co., 39 Fed. Rep. 89; Law r. Butler, 
 
 V. Fairbanks, 83 Cal. 215. But not 44 Minn. 482 ; Elraendorf r. Beirne, 
 
 when the legal remedy is adequate, 4 Tex. Civ. App. 188; Gruhn v. 
 
 as by action on the vendee's cove- Richardson, 12^ 111. 178; Martin r. 
 
 nant. Whiteley v. Central Trust Martin, 1G4 111. 040. If several notes 
 
 Co., 76 F. R. 74. thus secured are assigned to differ- 
 
 (h) A vendor's lien goes to his ent persons, the assignees are prima 
 
 personal representatives, and not facie to share pro rata in the pro- 
 
 to the heir. Robinson r. Appleton, ceeds of the land when sold to satisfy 
 
 124111.276; Evans r.Enloe, 70 Wis. the lien. Xasliville Trust Co. v. 
 
 345. It passes by a transfer of Smythe, 94 Teuu. 513. 
 the notes for the purchase-money, 
 
 VOL. I. — 23 353
 
 § 238.] TRUSTS BY EQUITABLE CONSTRUCTION. [CIIAP. VII. 
 
 whole purchase-money, he does not thereby secure a lien on 
 his co-purchasers' shares;^ nor does a lien accrue to a third 
 person who loans the purchase-money to the vendee and 
 takes his note therefor ;2 but if it is agreed by the vendor 
 that a note for the purchase-money shall be given to a third 
 person, it seems that the vendor's lien will go with the notc.^ 
 If the note given to the vendor for the purchase -money is 
 indorsed by him, and afterwards paid by him, his lien will 
 revive and attach to it.* If a surety to the vendee's note or 
 bond for the purchase-money is obliged to pay the debt, he 
 will be subrogated to the vendor's lien, and will have a right 
 to have it enforced for his benefit.^ If a vendor having a 
 
 mus, 7 Yerg. 9 ; Gann v. Chester, 5 Yerg. 205 ; White v. Williams, 
 
 1 Paige, 502 ; Ilallock v. Smith, 3 Barb. 267 ; Green v. Crockett, 2 Dev. 
 &Bat. Eq. 390; Moreton v. Harrison, 1 Bland, '191 ; Webb v. Robinson, 
 14 Ga. 216; Dickinson v. Chase, 1 Morris (Iowa), 492; Jackman v. Hal- 
 lock, 1 Ohio, 318; Tiernan v. Beam, 2 Ohio, 383; Clairhorn v. Crockett, 
 3 Yerg. 27; Briggs v. Planters' Bank, 1 Freem. Ch. 574 ; Iglehart v. Ami- 
 ger, 1 Bland, 519 ; Hayden v. Stuart, 4 Md. Ch. 280; Hall v. Maccubbin, 
 6 Gill & J. 107 ; Baum v. Grigsby, 21 Cal. 172 ; Lewis i: Covilland, id. 
 178; Williams v. Young, id. 227; Keith v. Horner, 32 111. 524 ; Richards 
 V. Learning, 27 111. 431; Watson v. Bane, 7 Md. 117. But in Alabama, 
 Texas, Kentucky, Indiana, and Iowa, a different rule prevails. In those 
 States, the assignment of the note given for the purchase-money carries 
 ■with it to the assignee the vendor's lien. Roper v, IMcCook, 7 Ala. 318 ; 
 White V. Stover, 10 Ala. 441 ; Grigsby v. Hair, 25 Ala. 327 ; Griffin v. 
 Camack, 36 Ala. 695; Murray v. Able, 18 Tex. 515; McAlpin r. Burnett, 
 19 Tex. 497; Moore v. Raymond, 15 Tex. 5.54; Edwards v. Bohannon, 
 
 2 Dana, 98 ; Honoi-e i'. Bakewell, 6 B. Mon. 67 ; Lagow v. Badollet, 
 1 Blackf. 417 ; Brumfield v. Palmer, 7 id. 227 ; Fisher v. Johnson, 5 Ind. 
 492; Kern v. Hazlerigg, 11 Ind. 443 ; Rakestraw v. Hamilton, 14 Iowa, 
 147 ; Pierson v. David, 1 Clarke, 23. 
 
 ^ Glasscock v. Glasscock, 17 Tex. 480. 
 
 2 Stansell v. Roberts, 13 Ohio, 148; Skeggs v. Nelson, 25 Miss. 88 ; 
 Crane v. Caldwell, 14 111. 468. 
 
 3 Dryden v. Frost, 3 My. & Cr. 670. In this case the third person was 
 a prior mortgagee, and had the title-deeds in his possession. Colcord v. 
 Scamonds, 5 B. Mon. 265. 
 
 4 1 Lead. Cas. in Eq. 368. 
 
 6 Kleiser v. Scott, 6 Dana, 137 ; Welch v. Parran, 2 Gill, 329 ; Ghise- 
 lin V. Ferguson, 4 Har. & J. 522 ; Magruder v. Peter, 11 Gill. & J. 228; 
 Burke v. Chrismau, 3 B. Mou. 50; Freeman v. Mebaue, 2 Jones, Eq. 44; 
 354
 
 CHAP. VII.] TRUSTS BY DESCENT OF TROrERTY. [§ 239. 
 
 lien on real estate for hin purchase-money enforces his debt 
 against the personal assets of a deceased vendee, and thereby 
 deprives creditors or legatees of the deceased vendee of the 
 chance of being paid their debts or legacies, equity will sub- 
 stitute them in the place of the vendor, or will marshal the 
 assets in order to do justice to all.' 
 
 § 239. This equitable lien or trust prevails against the 
 purchaser, his heirs, and all persons claiming under him or 
 them with notice that the purchase-money is unpaid. ^ It 
 prevails against the right of dower of the widow of the 
 vendee,^ also against a voluntary donee, or a purchaser with- 
 out notice,'' as also against a purchaser for value, if he had 
 notice that the purchase-money remained unpaid.^ If the 
 
 Jordan v. Hudson, 11 Tex. 82; Eddy r. Traver, 6 Paige, 521; In re 
 IMcGill, 6 BaiT, 504 ; Kinney v. Harvey, 2 Leigh, 70; Ilaffey v. Birchetts, 
 11 Leigh, 83 ; Scherinerhorn o. Barhydt, 9 Paige, 30; Tompkins v. Mitchell, 
 2 Rand. 428; Melery u. Cooper, 2 Bland, 109. 
 
 1 2 Sugd. V. & P. 873-878 (7th Am. ed.), where the cases are collected 
 and commented on. 
 
 2 Hearle v. Botelers, Gary, Ch. 25 ; ^Mackreth v. Symmons, 15 Yes. 
 329 ; Gibbons v. Baddall, 2 Eq. Gas. Ab. 682 ; Walker v. Preswick, 2 Ves. 
 622; Elliot v. Edward.s, 3 Bos. & P. 181; Winter v. Anson, 3 Russ. 493; 
 Garson i;. Green, 1 Johns. Ch. 308 ; AVarner v. Van Alstvne, 3 Paige, 
 513 ; Wade v. Greenwood, 2 Robin. 475 ; Ewbank v. Poston, 5 !Mon. 285; 
 Neil V. Kinney, 11 Ohio St. 58. 
 
 2 Warner ». Van Alstyne, 3 Paige, 513 ; Wilson v. Davidson, 2 Rob. 
 385 ; Ellicott v, Welch, 2 Bland, 243 ; Kazareth, &c. v. Lowe, 1 B. l^Ion. 
 257 ; Fislier v. Johnson, 5 Ind. 492; Crane r. Palmer, 8 Blackf. 120; Wil- 
 liams V. Wood, 1 Humph. 408 ; Besland v. Hewett, 11 .'^m. cSc M. 104. 
 
 * Upshaw V. Ilargrave, Sm. & M. 280; High v. Batte, 10 Yerg. 1S6, 
 335 ; Mounce v. Byars, IG Ga. 4G9 ; Burlingame r. Robbins, 21 Barb. 327; 
 Hallock /•. Smith, 3 Barb. 2G7. 
 
 6 Wilcox /•. Calloway, 1 Wash. 38 ; Graves v. IMcCall, 1 Call, 414; Red- 
 ford r. Gibson, 12 Leigh, 332; Wright r. Woodland, 10 Gill & J. 388; 
 Ghiselin r. Ferguson, 4 Har. & J. 522; Mounce v. Byars, 11 Ga. 180; 
 Thornton v. Knox, 6 B. ]\Ion. 74; Honore v. Bakewell, id. G7; Tiernan r. 
 Thurman, 14 B. Mon. 279; Eskridge r. McClure, 2 Yerg. 84; Sheratz r. 
 Nicodemus, 7 Yerg. 9; Pierce v. Gates, 7 Blackf. 1G2 ; Brumfield r. Pal- 
 mer, id. 227 ; McKnight v. Brady, 2 Mo. 110 ; Briscoe r. Bronaugh, 1 Tex. 
 320 ; Pintard c Goodloe, Hemp. 527 ; Aniory v. Reilly, 9 Ind. 490 ; Manly 
 V. Slason, 21 Vt. 271 ; Hallock c. Smith, 3 Barb. 2G7; Cator v. Pembroke, 
 
 355
 
 § 239.] TRUSTS BY EQUITABLE CONSTRUCTION. [CHAP. VII. 
 
 purchaser from the vendee has not paid over the purchase- 
 money, equity will attach the lien or trust to the money in 
 his hands. ^ But a bona fide purchaser for value from the 
 vendee, without notice, will take the estate unaffected by 
 the trust or lien;2(a) or if by intermediate conveyances 
 through persons who have notice the estate finally comes to 
 a bona fide purchaser for value without notice, it will be 
 discharged of the lien.^ A bona fide purchaser is defined to 
 be one who at the time of his purchase advances a new con- 
 sideration, surrenders some security, or does some other act 
 which leaves him in a worse position if his purchase should 
 be set aside ;^ of course, a mortgagee without notice for a 
 new consideration comes within this definition.^ So, a con- 
 veyance or mortgage to individual creditors without notice 
 is held to prevail against the lien, as where the equities are 
 equal the legal title prevails.^ But the lien prevails against 
 
 1 Bro. Ch. 302; Ewbank v. Poston, 5 Mon. 291; McAlpin v. Burnett, 19 
 Tex. 497 ; Pierson v. David, 1 Clarke, 23 ; Grapengether v. Fejervary, 
 9 Iowa, 163 ; Merritt v. Wells, 18 Ind. 171. 
 
 1 Ripperdon v. Cozine, 8 B. Mon. 465. 
 
 2 Bayley v. Greenleaf , 7 Wheat. 46 ; Clark v. Hunt, 3 J. J. Marsh. 
 553; Duval v. Bibb, 4 Hen. & ]\I. 113; Wood v. Bank of Kentucky, 
 
 5 Mon. 194 ; Blights, &c. v. Bank, &c., 6 Mon. 192 ; Taylor r. Hunter, 5 
 Humph. 569 ; Stewart v. Ives, 1 Sra. & M. 197; Carnes r. Hubbard, 2 S 
 
 6 jM.108 ; Dunlop ?;. Burnett, 5 Sm. & M. 702; Work v. Brayton, 5 Ind. 396 
 Carter v. Bank of Georgia, 24 Ala. 37 ; Bradford v. Harper, 25 Ala. 3-37 
 Webb V. Rol)inson, 14 Ga. 216 ; Champion v. Brown, 6 Johns. Ch. 402 
 Collier r. Harkness, 26 Ga. 362 ; Selby v. Stanley, 4 Miss. 65 ; Scott v 
 Orbinson, 21 Ark. 202. 
 
 3 Boon V. Barnes, 23 Miss. 136. 
 
 4 Ibid. 
 
 5 Duval V. Bibb, 4 Hen. & ]\I. 113 ; Wood v. Bank of Kentucky, 5 Mon 
 194 ; Clark v. Hunt, 3 J. J. Marsh. 553; Growing v. Behn, 10 B. Mon 
 383. 
 
 6 Bayley v. Greenleaf, 7 Wheat. 56 ; Mitford v. Mitford, 9 Yes. 100 
 Moore ?'. Holcombe, 3 Leigh, 597; Webb v. Robinson, 14 Ga. 216; Dun 
 lop V. Burnett. 5 Sm. & M. 702; Johnson v. Cawthorn, 1 Dev. & Bat. 32 
 Harper v. Williams, id. 179 ; Roberts v. Rose, 2 Humph. 145 ; Gann v 
 
 (a) See Koch v. Roth, 150 111. 473; Hawes v. Chaille, 129 Ind 
 212; Hertzfeld v. Bailey, 103 Ala. 435. 
 356
 
 CHAP. VII.] TRUSTS BY DESCENT OF PROPEETY. [§ 240. 
 
 assignees in bankruptcy or insolvency, and against a general 
 assignment by a failing debtor, in trust for all his creditors. 
 In these cases the vendees are looked upon as volunteers, and, 
 as such, they have the rights only of the debtor himself.^ 
 Notice to the agent of the purchaser is notice to the pur- 
 chaser,2 and if the vendor remain in possession it will be 
 sufficient to put a purchaser upon his intjuiry and is con- 
 structive notice,^ and any fact that would put a reasonable 
 man upon his inquiry will affect the purchaser with notice.* 
 So, if a purchaser knows that a jtart of the purchase-money 
 is unpaid, he is put upon his inquiry;*^ and such purchaser 
 is bound to take notice of all the recitals in the deed to the 
 vendee.^ 
 
 § 240. A person may also become a trustee by construc- 
 tion, in the absence of fraud, where a trust is created ; but 
 
 Chester, 5 Yerg. 205 ; but see Browu v. Vanlier, 7 Humph. 230 ; Shirley 
 r. Sugar Ref., 2 Edw. 505 ; llepp v. Repp, 12 Gill & J. 341 ; Ringgold c. 
 Bryan, 3 Md. Ch. 488 ; Aldridge v. Dunn, 7 Blackf . 249 ; but see Chance 
 v. McWortee, 26 Ga. 315. 
 
 1 Mitford V. Mitford, 9 Ves. 100 ; Fawell v. Ileelis, Amb. 726 ; Black- 
 burn V. Gregson, 1 Rro. Ch. 420; Grant r. Mills, 2 Ves. & B. 306 ; Ex parte 
 Peake, 1 Madd. 350; Chapman v. Tanner, 1 Vern. 267; Bayley v. Green- 
 leaf, 7 Wheat. 51 ; Green r. Denio.s.s, 10 Humph. 371 ; Brown r. Heathcote, 
 
 1 Atk. 160; Siiuond v. Hilbert, 1 Russ. & My. 729 ; Jewson v. Moulsou, 
 
 2 Atk. 417; Scott ?;. Surman, Willes, 402 ; Warrall r. Morlar, 1 P. Wms. 
 459. And so of judgment creditors. Flanders r. Thompson, 3 Woods, 
 9; Rodgers v. Bowner, 45 N. Y. 379; Birkhard v. Edwards, 11 Ohio, 84; 
 St. Bank v. Campbell, 2 Rich. (S. C. Eq.) 179; Watkins v. Russell, 15 
 Ark. 73 ; Thomas i'. Kennedy, 24 Iowa, 397 ; Dunlop v. Burnett, 5 Sm. 
 & M. 702. 
 
 2 Mounce v. Byars, 11 Ga. 180; Frail v. Ellis, 17 Eng. L. & Eq. 457. 
 
 8 Ringgold V. Bryan, 3 I\Id. Ch. 488; Hamilton v. Fowlkes, 16 Ark. 340; 
 Hopkins V. Garrard, 6 B. Mon. 67. 
 
 * Frail v. Ellis, 17 Eng. L. & Eq. 457; Briscoe i'. Bronaugh, 1 Tex. 
 328. 
 
 6 Manly v. Slasou, 21 Vt. 271. 
 
 ^ Kilpatrick r. Kilpatrick, 23 Miss. 124 ; Thornton v. Knox, 6 B. Mon. 
 74 ; Woodward v. Woodward, 7 B. Mou. 116 ; McRemmon r. Martin, 14 
 Tex. 318; Tiernan v. Thurman, 14 B. Mon. 277; Houore v. Bakewell, 
 6 B. Mon. 67 ; Hutchinson v. Patrick, 22 Tex. 318; McAlpin r. Burnett, 
 23 Tex. 649. 
 
 357
 
 § 240.] TEUSTS BY EQUITABLE CONSTRUCTION. [CHAP, VII. 
 
 if no trustee is appointed,^ or the trustee named is incapable 
 of taking,^ or refuses to act,^ or dics,^ or the office becomes 
 vacant in any other way ; ° in all such cases every person to 
 whom the trust property comes, by reason of there being no 
 trustee, will be treated as a trustee, and he may be ordered 
 to account, and to convey the property to such other persons 
 as trustees as the court may appoint.^ As where a man 
 makes a devise in trust by his will, but names no trustee, 
 the land descends to his heirs, but in trust for the purposes 
 named in the will ; and his heirs would be required to account 
 for the property, and to convey the same to such trustees as 
 the court might appoint. '' Courts of equity have inherent 
 jurisdiction over all matters of trust and trustees, and they 
 never allow a trust to fail for want of a trustee.^ So, if a 
 party forbidden by law to convey his property to some person 
 standing in a certain relation to him, as if a husband who 
 cannot convey to his wife should make an absolute convey- 
 ance directly to her, the conveyance would not pass the legal 
 title, but equity would construe it into a declaration of trust, 
 and the husband into a trustee for the wife.^ Therefore if, 
 upon the death of the trustee without heirs, the legal title 
 should escheat to the Crown or the State, equity would fol- 
 
 1 White V. White, 1 Bro. Ch. 12; Dodkin v. Brunt, L. R. 6 Eq. 580. 
 
 2 Sonley v. Clockmakers' Co., 1 Bro. Ch. 81 ; Ex parte Turner, 1 Bailey, 
 Ch. 39.5. 
 
 3 King V. Donnelly, 5 Paige, 46 ; Hawley v. James, id. 318 ; De Pey- 
 ster r. Clendining, 8 Paige, 295; Lee v. Randolph, 2 Heu. & M. 12 ; Ex 
 parte Kunst, 1 Bailey, 489 ; Dawson v. Dawson, Rice, 243 ; Field v. Arrow- 
 smith, 3 Humph. 448. 
 
 * Dunscomb v. Dunscomb, 2 Hen. & M. 11. 
 6 Gibson's Case, 1 Bland, 138. 
 
 6 Ibid. ; Cushney v. Henry, 4 Paige, 345 ; Mclntire School v. Zan. 
 Canal, &c., 9 Ham. 203 ; W^hite v. Hampton, 13 Iowa, 259; INIcKenna v. 
 Phillips, G Whart. 571 ; Boykin v. Ciples, 2 Hill, Eq. 200 ; Wilson v. 
 Towle, 3G N. H. 129; Poolu. Cummings, 20 Ala. 563; Griffith v. Griffith, 
 5 B. Mon. 113. 
 
 7 Stone V. Griffin, 3 Vt. 400. 
 
 8 McCartney v. Bostwick, 32 N. Y. 53; Vidal v. Girard, 2 How. 
 128. 
 
 9 Huntly V. Huntly, 8 Ired. Eq. 250 ; Garner v. Garner, Busbee, Eq. 1. 
 
 358
 
 CHAP. VII.] TRUST FROM GIFT OF TRUST PROPERTY. [§ 241. 
 
 low tlic property and execute the trust by the appointment of 
 new trustees or otherwise.^ 
 
 § 241. Another instance of a constructive trust without 
 fraud is where a person receives the trust property from the 
 trustee without notice of the trust, by way of voluntary gift 
 or without paying a valuable consideration. If such person 
 had notice of the trust, it would be a fraud to receive the 
 trust fund even if he paid a valuable consideration, and he 
 would be held as a constructive trustee ;2 but if he paid a 
 valuable consideration without notice, he would hold the 
 property unaffected by the trust. ^ And if he receives the 
 property without paying a valuable consideration, and with- 
 out notice, equity holds the absence of a consideration as 
 equivalent to notice, and construes the taker into a trustee, 
 and liable as such to the same extent as the trustee from 
 whom he took it.* But if a person comes into possession of 
 the trust property, not by, under, or through the trustee, 
 but against him, as by disseizing or ousting him, he will 
 not be bound by the trust, although he have notice of it; for 
 the disseizor creates a title for himself paramount to the 
 title of the trustee,^ and all outstanding terms attending the 
 inheritance will attend the title of the disseizor until he is 
 dispossessed by some other paramount title. ^ In States 
 where registry laws are in force, the registry of a deed from 
 a grantor who had no right to the land is not constructive 
 notice to the true owner that such deed has been made, and 
 it is constructive notice only to subsequent purchasers under 
 the same grantor.' 
 
 1 Stat. 4 & 5 Will. IV. c. 23; Hughes v. Wells, 9 Hare, 749 ; 13 Eng. 
 L. & Eq. 389. 
 
 * Ante, §220. 
 
 8 Ante, §§ 217, 218. 
 
 * Mansell r. Mansell, 2 P. Wms. 601 ; Pye r. George, 1 P. Wms. 123. 
 6 Finch's Case, 4 lust. 85 ; Sugd. Gilb. Uses, 429. 
 
 Reynolds v. Jones, 2 S. & S. 20G. 
 
 ' Batos '-.Norcross, 14 Pick. 225; Tilton r. Hunter, 11 Shep. 29; .Stuy- 
 vesant r. Hall, 2 Barb. Ch. 151 ; Keller r. Nutz, 5 S. & R. 246 ; Woods v. 
 Farmene, 7 Watts, 382 ; Crockett v. McGuire, 10 Miss. 34. 
 
 359
 
 § 242.] 
 
 TRUSTS BY EQUITABLE CONSTRUCTION. [CHAP. VII. 
 
 § 242. Analogous to the gift or sale of the trust property 
 by trustees is the right of dealing with its property by a cor- 
 poration. A corporation holds its property in trust, first, to 
 pay its creditors, and, second, to distribute to its stockholders 
 pro rata J (a) If therefore a corporation should dissolve, and 
 divide its property among its shareholders without first pay- 
 ing its debts, equity would enforce the claims of its creditors 
 by converting all persons, except bona fide purchasers for 
 value, to whom its property had come, into trustees, and 
 
 1 National Bauk, &c. v. Lake Shore, &c. R. R. Co., 21 Ohio St. 232. 
 
 (fl) A corporation is so far a 
 trustee for its stockholders that a 
 minority thereof may have relief 
 iu equity when the acts of the cor- 
 poration, through the majority of 
 its stockholders, is fraudulent or 
 oppressive towards them. Menier 
 V. Hooper's Tel. Works, L. R. 9 
 Ch. 350 ; Gamble v. Queen's County 
 W. Co., 123 N. Y. 91 ; Sage ;;. 
 Culver, 147 N. Y. 241; Hawes v. 
 Oakland, 104 U. S. 450; Mason 
 V. Pewabic M. Co., 133 U. S. 50; 
 145 U. S. 348; Brewer v. Boston 
 Theatre, 104 Mass. 378. And a 
 corporation which purchases a ma- 
 jority of the stock of another cor- 
 poration assumes the same trust 
 relation towards the latter's minor- 
 ity stockholders. Farmers' L. & T. 
 Co. V. New York & N. Ry. Co., 
 150 N. Y. 410. 
 
 A corporation is sometimes said 
 to hold its property as a trust fund 
 for its creditors; but this applies 
 no more strongly than in the case 
 of an ordinary debtor, and only 
 •when the corporation is insolvent. 
 HoUins V. Brierfield Coal Co., 150 
 U. S. 371 ; Handley v. Stutz, 139 
 U. S. 417; Walker r. Miller, 59 
 F. R. 869; Chattanooga, &c. R. 
 360 
 
 Co. V. Evans, 66 id. 809; In re 
 Brockway Manuf. Co., 89 Maine, 
 121 ; Fear v. Bartlett, 81 Md. 435 ; 
 O'Bear Jewelry Co. v. Volfer, 106 
 Ala. 205 ; Ballin v. Merchants' Ex- 
 change Bank, 89 Wis. 278; John 
 V. Farwell Co. r. Sweetzer, 10 Col 
 App. 421; Hospes v. Northwestern 
 Manuf. Co., 48 Minn. 174; Mem 
 phis Barrel Co. v. W^ard, 99 Tenn 
 172 ; 25 Am. L. Rev. 749. A for 
 eign corporation may be a trustee 
 See Pennsylvania Ins. Co. i'. Bau' 
 erle, 143 111. 459 ; Farmers' L. & T 
 Co. V. Lake St. Ry. Co., 68 III. App, 
 666 ; Glaser v. Priest, 29 Mo. App 
 1 ; Butler v. Harrison Land Co. 
 139 Mo. 467 ; Peynado r. Penaydo, 
 82 Ky. 5 ; Deriuger v. Deringer 
 5 Houst. 416; Ames v. Heslet, 19 
 Mont. 188. 
 
 Where numerous copies of a 
 pamphlet were issued by a fraternal 
 beneficiary association, stating that 
 a certain fund was held by it as a 
 trust fund solely for the payment 
 of matured certificates, &c., the 
 pamphlet was held admissible in 
 evidence to show that its chief 
 officer knew the fund to be held 
 in trust. Putnam v. Gunning, 162 
 Mass. 552, 554.
 
 CHAP. VII.] TRUST FROM GIFT OF TRUST PROPERTY. [§ 242. 
 
 would compel them to account for the proi)erty and contribute 
 to the payment of the debts of tlie corporation to the extent 
 of its property in their hands. ^ In England, the doctrine of 
 constructive trusts is not enforced aj^ainst the Bank of Eng- 
 land in regard to its stock standing u[)on its books; the bank 
 is bound to recognize only the person who has the legal title. ^ 
 But Chief Justice Taney said that the decisions as to the 
 Bank of England were exceptions depending upon the policy 
 of the acts of parliament in reference to the bank, and that 
 certainly none of the English cases convey the idea that, 
 upon general principles of law, a bank is not bound to notice 
 a trust of its own stocks, and must look only at the legal 
 estate.^ In the United States it is well established, that if 
 a corporation that requires a transfer of its stock to be made 
 by its own oflicers u{)on its own books permits a transfer to 
 be made, by an executor, trustee, or guardian, of stock held 
 by such persons in a fiduciary ca})acity, such corporation, 
 knowing the trust, and that the transfer is made for purposes 
 other than such trust, will be held in equity as a constructive 
 trustee of the stock thus wrongfully conveyed, and will be 
 liable to make it good to the cestui que trust. ^ (a) And if a 
 
 1 Miimma r. Potomac Co., 8 Pet. 281 ; Vose v. Grant, 15 Mass. 515 ; 
 Spear v. Grant, 16 Mass. 9 ; Wood v. Dummer, -3 Mason, 308; 2 Story's 
 £q. Jur. § 1252 ; Hill i: Fogg, 41 Mo. 562 ; Hastings v. Drew, 76 N. Y. 9. 
 
 2 Pearson r. B'k of Eng., 2 Bro. Ch. 529 ; Hartga *•. B'k of Eng., 3 Ves. 
 Jr. 55 ; B'k of Eng. r. Parsons, 5 Ves. 608; Austin v. B'k of Eng., 8 Ves. 
 522; B'k of Eng. r. Lunn, 15 Ves. 583; Bristed v. Williams, 3 Hare, 235; 
 Humberstone c. Chase, 2 Y. & C. 209 ; Franklin /•. B'k of Eng., 9 B. & C. 
 156; B'k of Eng. v. Moffat, 3 Bro. Ch. 260; Pearson v. B'k of Eng., 2 Cox, 
 178; Rider r. Kidder, 10 Ves. 369; Ripley r. Waterworth, 7 Ves. 440; 
 Stat. 4 W. & M. c. 3, § 10; 5 W. & M. c. 20, § 20; 1 Geo. I. St. 2,c. 19, 
 § 12; .30 Geo. II. c. 19, § 49 ; 7 Will. IV. & 1 Vic. c. 26; 8 & 9 Vic. c. 
 97; Lewin on Trusts (2d Am. ed.), 32. 
 
 8 Lowry v. Commercial B'k, 3 Bankers' Mag. 201 ; 10 Pa. Law Jour. 
 (3 Am. L. J. N. 8.) 111. 
 
 4 JNlechanics' B'k v. Seton, 1 Pet. 299 ; Porter i: B'k of Rutland, 19 Vt. 
 
 (n) See Lowell, Transfer of § 323 et set]. ; 1 Ames ou Trusts 
 Stock, §§ 151, 242; 1 Cook on (2d ed.), 414. 
 Stock and Stockholders (3d ed.), 
 
 361
 
 § 242.] TRUSTS BY EQUITABLE CONSTRUCTION. [CIIAP. VII. 
 
 cor[»oration negligently enter the names of the parties upon 
 its books, in such manner that the stock is improperly trans- 
 ferred, it will be liable as a constructive trustee. ^ Accord- 
 ingly a corporation has a right to require from all fiduciary 
 holders of stock evidence of their authority to make the 
 transfer. 2 It has been held that the mere addition of the 
 word " trustee, " without any reference to the terms of the trust 
 or the persons of the cestuis que trust, is not sufficient notice 
 to a bank to render it liable in case the stock is wrongfully 
 transferred by the holder ;3 and it is said that, as a guardian 
 has a right to sell the personal property of his ward, a corpora- 
 tion is not liable if he wrongfully transfers the stock on its 
 books.* If purchasers of stock in a corporation have notice 
 that their vendors are trustees, they will be held as construc- 
 tive trustees ; and if the cei-tificates are passed over to the 
 purchaser wath the word " trustee " added to the name of the 
 seller, the purchaser is bound to inquire into the particulars 
 of the trust, and he has such notice as will bind him as a 
 trustee if the sale was wrongfully made.^ But if the pur- 
 chaser does not see the certificates of the stock in the seller's 
 hands, as if the seller himself transfers the stock upon the 
 books of the company, and brings to the purchaser new cer- 
 tificates that he is entitled to so many shares, the purchaser 
 would not be affected with notice, and would not be held as 
 a trustee.^ 
 
 410; Albert v. Savings B'k, 1 MJ. Ch. 407; 2 Md. 160; Farmers' B'k v. 
 Wayman, 5 Gill, 356 ; Atkinson v. Atkinson, 8 Allen, 15; Loring r. Salis- 
 bury Mills, 125 Mass. 138 ; Holden v. New York & Erie Bank, 72 N.Y. 286. 
 ^ Farmers' B'k v. Wayman, 5 Gill, 356. 
 
 2 Bayard v. Farmers' & ]\Iech. Nat. B"k, 2 Leg. Int. 164. 
 
 3 Albert v. Savings B'k, 1 Md. Ch. 407 ; 2 Md. 160. But see to the 
 contrary, Walsh v. Stille, 2 Pars. Eq. 17. 
 
 * B'k of Virginia v. Craig, 6 Leigh, 339. But see Atkinson v. Atkin- 
 son, 8 Allen, 15. In the last case, however, the transfer was after the 
 removal of the guardian and the appointment of another in his place. 
 
 5 Walsh V. Stille, 2 Pars. Eq. 17; Reeder v. Barr, 4 Ham. 446; Simons 
 V. S. W. Railway B'k, 2 Am. Law Reg. 546; Atkinson v. Atkinson, 10 
 Allen, 15. 
 
 6 Lowry v. Commercial B'k, 3 Bankers' Mag. 2111 ; 10 Pa. Law Jour. 
 Ill ; Albert v. Savings B'k, 2 Md. 160 ; Atkinson v. Atkinson, 10 Alien, 15. 
 
 362
 
 CHAP. VII.] CONVEYANCE AS SECURITY. [§ 24.3. 
 
 § 243. Af^ain, if one receives a conveyance of lands or 
 other property absolute in form, but really as security for a 
 debt, he will hold the legal title in trust for the grantor after 
 the payment of the debt, and before a reconveyance.' So, if 
 one receives personal property, agreeing to hold it for an- 
 other, or to sell it and pay the proceeds to the holder of a 
 note, draft, or other debt, he becomes a trustee, and a bill 
 in equity may be maintained against him and his pledges to 
 enforce the trust.^ But if such conveyance is fraudulent and 
 void, the bona fide holder of the note or draft cannot enforce 
 the trust. ^ In p]ngland, upon the death of the mortgagee 
 the mortgage debt goes to his personal representatives, Ijut 
 the fee in the mortgaged real estate descends to his heirs, if 
 not otherwise disposed of; but his heirs hold it upon a 
 constructive trust, as security for the debt, which has gone 
 to his executors or administrators.^ {a) In nearly all the 
 United States, both the debt and the mortgage security 
 are chattel interests, and go to the executors or administra- 
 tors, and not to the heirs, ^ and payment of the mortgage 
 debt discharges- the mortgage ; but while the mortgagee is 
 in possession, he is a constructive trustee up to the time 
 
 1 Maverick, &c. Soc. v. Lovejoy, G Allen, 163 ; Baldwin v. Bannister, 
 
 3 P. Wms. 251 ; Poole i'. Pass, 1 Beav. GOO; Cru. Dig. tit. 15; ]\Iort. c. :3, 
 § 5, tit. 15, c. 2, § 39; Wilkinson v. Stewart, 30 111. 48; Smyth v. Car- 
 lisle, IG N. H. 4G4. 
 
 2 Michigan State Bank v. Gardner, 15 Gray, 362 ; Ulman v. Barnard, 
 7 Gray, 551; IMartiu r. Coles, 1 M. & S. 1-10 ; Graham v. Dyster, G :\I. & 
 S. 1; Rodriquez v. Ilefferman, 5 Johns. Ch. 417; Do AVolf v. Gardner, 12 
 Cush. 19 ; Ellis V. Lamine, 42 Mo. 153; Petersham i-. Tash, 2 Stra. 117S; 
 Warner v. Martin, 11 How. 221 ; Evans r. Potter, 2 Gall. 13; Daubigny 
 r. Duval, 5 T. U. 604 ; Guerreiro v. Peile, 3 B. & Aid. 616; De Bouchout 
 V. Goldsmid, 5 Ves. 211 ; Skinner v. Dodge, 4 lien. & M. 423; Newson r. 
 Thornton, G East, 17; McCoinbie v. Davies, 7 East, 5; Kinder v. Shaw, 
 2 Mass. 398; Van Amringe v. Peabody, 1 Mason, 410. 
 
 8 Potter V. McDowall, 43 Mo. 93. 
 
 * Ellis V. Guavas, 2 Ch. Cas. GO; Chase v. Lockerman, 11 G. & J. 1S5. 
 
 6 See Greenleaf 's Cruise, Dig. tit. 15, c. 2, §§ 39, 40, and notes ; 4 Kent, 
 ICO, 194. 
 
 (a) As to the equitable mortgage and notes; Bullowa c Orgo (X. J. 
 created by deposit of title-deeds, see Eq.), 41 Atl. 491. 
 
 4 Kent Com. (14th ed.), 150, 151, 
 
 363
 
 § 244] TRUSTS BY EQUITABLE CONSTKUCTION. [CHAP. YII. 
 
 that the mortgagor's equity of redemption expires, and ho 
 is bound to account for the rents and profits in due course of 
 administration.' It has even been thought that he is liable 
 for the rents and profits after he has transferred his mort- 
 gage ;2 but, as he has a right to assign his mortgage without 
 notice to the mortgagor, it would seem that he would not be 
 liable for anything after he had assigned his mortgage and 
 the possession. 3 If a mortgagee assigns the mortgage debt 
 but not the mortgage, he holds the title to the mortgaged 
 premises in trust for the owner of the debt.* So one who 
 takes a mortgagee's title holds it in trust for the owner of 
 the debt which the mortgage was intended to secure.^ 
 
 § 244. At common law, if a testator appointed his debtor 
 to be the executor of his will, the debt was extinguished, on 
 the ground that, as the executor could not maintain an action 
 against himself, the remedy was gone, and where the remedy 
 is gone, the debt is gone.^ Equity, however, construes the 
 debtor, although he is executor, to be a trustee, and the 
 creditors, legatees, and next of kin of the testator can en- 
 force the trust by compelling the executor to account for the 
 amount of the debt due from him to the testator.'^ In most 
 of the United States this matter is regulated by statute, and 
 the executor may be required by the probate court to put 
 the amount of his debt to the testator into his inventory, or 
 the court of probate may require the executor to charge 
 
 1 Coppring v. Cooke, 1 Vern. 270; Bentham v. Haincourt, Pr. Ch. 30; 
 Parker v. Calcroft, 6 Madd. 11; Hughes v. Williams, 12 Ves. 493; Mad- 
 docks V. Wren, 2 Ch. R. 109. 
 
 2 Venables v. Foyle, 1 Ch. Cas. 3. 
 
 8 Ringham v. Lee, 15 Sim. 400; Re Radcliffe, 22 Beav. 201. 
 
 4 Torrey v. Morrill, 53 Vt. 331. 
 
 fi Jordan v. Cheney, 74 Maine, 359. 
 
 6 2 Williams' Ex'rs, 1129 ; 2 Story's Eq. Jur. § 1209. 
 
 ' Berry v. Usher, 11 Ves. 90; Simmons v. Gutteridge, 13 Ves. 264; 
 Carey v. Goodinge, 3 Bro. Ch. Ill; Errington v. Evans, 2 Dick. 456; 
 Flud V. Rumsey, Yel. 160; Phillips v. Phillips, Freem. 11; 1 Ch. Cas. 
 292; Brown v. Selwyn, Caa. t. Talb. 203; 3 Bro. P. C. 607; 2 Story's 
 Eq. Jul-. § 1209. 
 364
 
 CHAP. Yir.] TRUSTEE DE SON TORT. [§ 245. 
 
 himself with the amount of his debt in his account.' And 
 so legatees and distributees may become constructive trustees 
 for creditors of the estate, if the executor or administrator, 
 by accident or mistake, pays over or distributes the estate 
 before all deljts are j)aid. The executor may be sued at law 
 in such case by the creditor, and he may recover over against 
 the persons to whom he has paid the estate. In equity, how- 
 ever, creditors can follow the fund lialilc for their del)ts into 
 the hands of the persons to whom it has come, and treat 
 them as constructive trustees, as they are not entitled to 
 anything out of the estate till the debts are first satisfied. ^ 
 
 § 245. A person may become a trustee by construction, by 
 intermeddling with, and assuming the management of, prop- 
 erty without authority. Such persons are trustees de son 
 tort, as persons who assume to deal with a deceased person's 
 estate without authority arc administrators de son tort. (a) 
 
 1 Pusey V. Clerason, 9 S. & R. 201 ; Griffith v. Chew, 8 S. & R. 32; 
 Ilill on Trustees, 172, notes (4th Am. ed.) . 
 
 2 2 Story's Eq. Jur. §§ 1250, 1251 ; Russell v. Clark, 7 Cranch, 09 ; Mc- 
 Call V. Harrison, 1 I?rock. 12G; Buck v. Swazey, 35 Me. 52 ; Riddle v. 
 Mandeville, 5 Cranch, 329 ; Anon. 1 Vern. 162 ; Newman v. Barton, 2 Vem. 
 205 ; Noel v. Robinson, 1 Vern. 94; White School House v. Post, 31 Conn. 
 240; Boddy v. Lefevre, 1 Hare, 002, n. 
 
 (a) Such a trustee is also styled Tennant, 43 W. Va. 547. Thus, a 
 a trustee ex malcjicio. See Larmon wife who procures to herself the 
 V. Knight, 140 111. 232 ; Russell v. absolute legal title to hor husband's 
 McCall, 141 N. Y. 437; Barry r. property, which he intended to de- 
 Hill, 166 Penn. St. 344 ; Cutler vise to his own heirs, but trans- 
 r. Babcock, 81 Wis. 195 ; Rollins v. ferred to her on her promise to use 
 Mitchell, 52 Minn. 41,50; Luse r. it during her life and devise the 
 Reed, 63 Minn. 5 ; Edwards v. Cul- part remaining to his heirs, will be 
 bertson,lll N.C. 342; Gruhnw.Rich- charged with a trust in inntum in 
 ardson, 12S 111. 178 ; Orth v. Orth, the property on a bill in equity by 
 145Tnd. 181 ; Kagsdale r. Ragsdale, his heirs. Gilpatrick v. Glidden, 
 68 Miss. 92; Kincaid c. Thompson, 81 Maine, 137; Thompson y. Thomiv 
 13 Wash. 377 ; Roggenkamp v. son, 107 Ala. 163. This form of 
 Roggenkamp, 68 F. R. 605 ; Leigh- trust properly depends only upon 
 ton ('. Leighton, 91 Maine, 593 ; actual deceit. Davis v. Stambaugh, 
 Bailey r. Bailey, 07 Vt. 494 ; Brown 163 111. 557. Such a trust does not 
 V. Doane, 83 Ga. 32 ; Teunaut v. arise from a mere refusal to perform 
 
 365
 
 § 245.] TRUSTS BY EQUITABLE CONSTRUCTION. [CHAP. VII. 
 
 Thus an administrator has no right to interfere with the 
 real estate of an intestate unless it is wanted to pay debts; 
 and if he assume to act in relation to the real estate as a 
 trustee, those interested may treat him as such, and he can- 
 not demur to a bill charging him with neglect of duty, and 
 praying for his removal.^ If one enters upon an infant's 
 lands, and takes the rents and profits, he may be charged as 
 a guardian or trustee,^ (a) and so if one takes personal prop- 
 erty. ^ If a deceased person holds money or other property 
 in trust for another, and his heir, executor, administrator, 
 or other person assume possession of such property, a con- 
 structive trust will be imposed upon them.^ During the 
 possession and management by such constructive trustees 
 they are subject to the same rules and remedies as other 
 trustees;^ and they cannot avoid their liability by showing 
 that they were not in fact trustees,^ nor can they set up the 
 statute of limitations,'^ Of course, such unauthorized per- 
 sons will always be liable to be deprived of the possession at 
 the suit of those beneficially interested, and they will be 
 liable for all the costs, expenses, and damages which their 
 unauthorized intermeddling may have occasioned. Still 
 there may be cases where an unauthorized person may inter- 
 fere from necessity to preserve and protect the property. In 
 
 1 Le Fort v. Delafield, 3 Edw. 31 ; McCoy v. Scott, 2 Rawle, 222 ; 
 Schwartz's Estate, 14 Penn. St. 42 ; People v. Iloughtaling, 7 Cal. 348. 
 
 2 Wyllie V. Ellice, 1 Hare, 505 ; Drury v. Connor, 1 11. & G. 220 ; 
 Bloomfield v. Eyre, 8 Beav. 250. 
 
 3 Chaney v. Smallwood, 1 Gill, 367 ; Goodhue v. Barnwell, Rice, Eq. 
 198 ; Bennett v. Austin, 81 N. Y. 308. 
 
 4 White School House v. Post, 31 Conn. 248 ; People v. Houghtaling, 
 7 Cal. 348. 
 
 5 Wilson V. ]\Ioore, 1 Myl. & K. 127. 
 
 6 Rackham v. Siddall, 1 Mac. & G. 607; 2HaU&T. 44 ; 16 Sim. 297; 
 Hope V. Liddell, 21 Beav. 183. 
 
 ' Goodhue v. Barnwell, Rice, Eq. 198. 
 
 an oral contract. Barry v. Hill, (a) Thornton v, Gilman (K H.), 
 
 166 Penn. St. 344; Dunn v. Zwil- 39 Atl. 900. 
 ling, 94 Iowa, 233; Goldsmith v. 
 Goldsmith, 145 N. Y. 313, 318. 
 366
 
 CHAP. VII.] 
 
 TRUSTEE DE SON TOUT. 
 
 [§ 24G. 
 
 such cases courts of c(juity have i)Ower to do exact justice by 
 decrees as to costs, comj)cnsatiou, and other similar matters. 
 In all cases a person beneficially interested coming into 
 equity must do equity, and join all who have interfered with 
 the possession; and he cannot |)rocecd against one alone as 
 at law for a trespass, and compel one to bear the whole 
 burden of the wron-i-ful intrusion.' 
 
 § 24G. If an agent is employed by a trustee and thus comes 
 into possession of the j)roperty, he will be accountaljlc to his 
 employer, and will not be responsible as a constructive 
 trustee. 2 But if such agent should act fraudulently or col- 
 lusively he might be made a trustee by construction, and, as 
 such, accountable to the cestui que trust.^ (a) 
 
 ^ Wyllie V. Ellice, 6 Hare, 515 ; Phene v. Gillon, 5 Hare, 5. 
 
 2 Keane v. Kobarts, 4 Madd. 332 ; Nickolson v. Knowles, 5 ]\Iadd. 47; 
 Myler v. Fitzpatrick, 6 Madd. 360; Davis v. Spurliug, 1 11. & M. 64; Tarn. 
 199; Crisp v. Spranger, Nels. 109; Saville v. Tancred, 3 Swanst. 141; 
 Fyler v. Fyler, 3 Beav. 550; Maw v. Pearson, 28 Beav. 196 ; Lockwood r. 
 Abdy, 14 Siin. 437; Ex parte Burton, 3 Mont., D. & De Gex, 361; Re 
 Bunting, 2 Ad. & El. 467. 
 
 8 Fyler v. Fyler, 3 Beav. 550 ; Att. Gen. r. Leicester, 7 Beav. 171 ; 
 Hardy v. Caly, 33 Beav. 365 ; Bridgraan v. Gill, 24 Beav. 302 ; Portlock 
 V. Gardner, 1 Hare, 606 ; Ex parte Woodin, 3 Mont.. D. & De G. 399 ; 
 Bodenham v. Hoskyns, 2 De G., M. & G. 903 ; Panell v. Hurley, 2 Coll. 
 241; Alleyne r. Darcy, 4 Led. Ch. 199, 5 Ired. Ch. 56. 
 
 (a) Pinney v. Newton, 66 Conn. 
 Ill; infra, § 813. Strangers to the 
 management of the trust, though 
 agents of tlie trustees, are not con- 
 structive trustees because they fol- 
 low the instructions of tiie trustees 
 in matters within their legal powers, 
 
 though the court may not approve 
 of the trustees' action. Hence a 
 solicitor to a trustee is under no 
 greater liability to account as a con- 
 structive trustee than any other 
 stranger to the trust. Barnes v. 
 Addy, L. R. 9 Ch. 244 ; In re Blun- 
 dcll, 40 Ch. D. 370 ; Soar v. Ash- 
 well, [1893] 2 Q B. 390; Koche- 
 
 foucauld V. Boustead, [1897] 1 Ch. 
 196 ; Friend v. Young, 2 id. 421. 
 An agent of the trustee who secures 
 to himself a personal benefit from 
 the trust estate is responsible as a 
 trustee to the cestui que Irusl. Leh- 
 mann v. llothbarth, 111 111. 185 ; 
 Shearman v. IMorrison, 149 Penn. 
 St. 386. If such agent accepts a 
 delegation of the trust, and fraudu- 
 lently takes part in a breach of 
 trust, he may be held liable to the 
 cestui que trust as a trustee de son 
 tort. In re Banu-y, [1892] 2 Ch. 
 265. 
 
 Trustees are liable personally for 
 367
 
 § 247.] TRUSTS BY EQUITABLE CONSTRUCTION. [CIIAP. VII. 
 
 § 246 a. If a vendor undertakes to sell a good title to 
 land for a valuable consideration, and his title is defective, 
 but he afterwards obtains a perfect title, equity will compel 
 him to hold it in trust for his vendee.^ If, however, such 
 vendor had conveyed the land with full covenants of war- 
 ranty, the title which he afterwards obtains will enure for 
 the benefit of his grantee, and the vendor will be estopped 
 by his covenants from setting up his after-acquired title 
 against his vendee. ^ And if a purchaser of land with notice 
 of a prior mortgage afterwards sells the same to an innocent 
 purchaser for its full value, equity will compel him to hold 
 the proceeds in trust for the mortgagee.^ So, if one procures 
 and puts on record a deed of land with notice of a prior deed 
 and in fraud of a prior purchaser, equity will compel him to 
 hold the legal title in trust for the first grantee.* So, if a 
 person sells stock, and it is conveyed in such a manner that 
 the conveyance is void and the legal title is still in the 
 vendor, he will hold it in trust for the actual vendee, and he 
 may be compelled to take the title and assume the burdens.^ 
 
 § 247. Where a person has possession of title-deeds or 
 other documents in relation to property, and other persons 
 are interested in the same property, and claim title through 
 or under the same papers, the person having the possession of 
 the papers is a constructive trustee for the other persons 
 
 1 Clark V. Martin, 49 Penn. St. 299; Hope v. Stone, 10Minn.l4; Doyle 
 V. Peerless, 44 Barb. 239 ; Kelley v. Jenness, 50 Maine, 455 ; Cobb v. Stew- 
 art, 4 Met. (Ky.) 255 ; Dalheguey v. Tabor, 22 Cal. 279 ; Wasby v. Fore- 
 man, 30 Cal. 90; Kane County v. Herrington, 50 111. 232. 
 
 2 Somes V. Skinner, 3 Pick. 51 ; White v. Patten, 24 Pick. 324 ; 2 Smith, 
 Lead. Cases (4 Amer. ed.), 550; Xash i,-. Spofford, 8 Met. 192. 
 
 3 Moshier v. Knox College, 32 111. 155. 
 
 4 Troy City Bank v. Wilcox, 24 Wis. 671. 
 6 Brown v. Black, L. R. 15 Eq. 3G7. 
 
 their agents' torts in the manage- McRoberts v. Carneal (Ky.), 44 
 
 ment of the trust business, as their S. W. 442 ; Blewitt v. Olin, 14 
 
 negligence or that of their servants Daly, 351 ; Norling v. Allee, 13 
 
 does not bind the trust estate. N. Y. S. 791 ; Low r. Gemley, 18 
 
 Baker v. Tibbetts, 162 Mass. 468 ; Can. Sup. 685. 
 368
 
 CHAP. VII.] 
 
 TRUSTEE DE SON TOKT. 
 
 [§ 247 a. 
 
 interested in the same property, and a court of equity will 
 compel him to produce tlic deeds or papers at the suit of 
 those claiming an interest in the common property.^ 
 
 § 247 a. If a person becomes surety for the debt of another, 
 and the creditor holds mortgages on other securities from 
 the debtor for the same debt, the surety, if he pay the debt, 
 has a right to claim that the creditor shall hold the securi- 
 ties in trust for him; in other M'ords, the surety upon paying 
 the debt is subrogated into the rights of the original credi- 
 tor ;2 and if an assignor receives payment for a chose in 
 action which he has assigned, he holds the proceeds in trust 
 for the assignee.^ {a) So, if one sells the property of 
 another and deposits the money in bank in his own name, 
 upon notice to the bank, by the owner of the property, of the 
 facts, and a demand for the money, the bank becomes a quaal 
 or constructive trustee for the true owner.* 
 
 1 Lewin on Trusts, 156, 157 (5th Lond. ed.). 
 
 2 Garnsey v. Gardner, 4 Maine, 1G7. 
 
 8 Post, § 438 ; Fortescue v. Barnett, 3 Myl. & K. 30. 
 
 < Bank of Wellsborough v. Bache, 71 Penn. St. 213; Arnold v. Macun- 
 gie Bank, id. 287; Twitchell v. Drury, 25 Mich. 393 ; Campan v. Campan, 
 id. 127. 
 
 (a) See supra, § 60, n. (a). A 
 banker also has a general lien upon 
 securities in his possession ; but 
 such lien does not arise upon secu- 
 rities accidentally in his possession, 
 or not in his possession in the course 
 of his business as such, or where 
 
 the securities are in his hands under 
 circumstances, or where there is a 
 particular mode of dealing, incon- 
 sistent ■with such general lien. 
 Reynes v. Dumont, 130 U. S. 354, 
 391. 
 
 VOL. I. — 24 
 
 369
 
 § 248.] TRUSTS . IMPLIED FROM POWERS. [CHAP. VIII 
 
 CHAPTER VIII. 
 
 TRUSTS THAT ARISE BY CONSTRUCTION FROM POWERS. 
 
 § 248. The nature of powers that imply a trust. 
 
 § 249. Court will execute such powers as trusts. 
 §§ 250, 251. Instances of powers which the court will execute as trusts. 
 
 § 252. Instances of powers that are not trusts. 
 
 § 253. Where the power is too uncertain. 
 
 § 254. The power must be executed as given, or it will remain a trust to be ex- 
 ecuted by the court. 
 §§ 255, 256. In what manner the court will execute a trust arising out of a power. 
 
 § 257. Whether courts will distribute per stirpes or per capita. 
 
 § 258. And whether to those living at the death of donor or of the donee. 
 
 § 248. Property is sometimes given to a person with a 
 power to dispose of it for a particular purpose, or to a par- 
 ticular class of persons, or to certain persons to be selected 
 or designated by the donee from a particular class. If the 
 donee executes the power and disposes of the property, or 
 designates or selects the persons who are to take under the 
 gift, it goes as directed, and there is no great room for doubt 
 or question ; but if the donee refuses or neglects to execute 
 the power, it becomes a grave inquiry whether the persons in 
 whose favor the power might have been executed have any 
 interest in the property, or any remedy for the non-exercise 
 of the power by the first taker or donee. In dealing with 
 the cases that have arisen upon these inquiries, courts have 
 distributed powers into mere powers, and powers coupled 
 %vith a trust, or p)oivers tvhich imply a trust.^ Mere powers are 
 purely discretionary with the donee : he may or may not 
 exercise or execute them at his sole will and pleasure, and 
 no court can compel or control his discretion, or exercise 
 it in his stead and place, if for any reason he leaves the 
 
 1 Brown v. Higgs, 8 Ves. 574 ; White v. Wilson, 1 Drew. 298. 
 370
 
 CHAP. VIII.] 
 
 POWERS THAT ARE TRUSTS. 
 
 [§ 248. 
 
 powers unexecuted.' (a) If the donee executes the powers, 
 but executes them in a defective manner, courts may aid the 
 execution and supply the defects, but they cannot exercise 
 or execute mere naked powers conferred upon a donee. ^ ('') 
 It is diliferent with powers coupled with a trust, or powers 
 which imply a trust. In this class of cases the power is so 
 given that it is considered a trust for the benefit of other 
 
 1 Greenough v. Welles, 10 Cush. 570 ; Eldredge v. Heard, 100 Mass. 
 582. 
 
 2 Wilkinson v. Getty, 13 Iowa, 157; Arundell v. Philpot, 2 Vern. 69; 
 Tompkyn i-. Sandys, 2 T. Wms. 228, n. ; Bull v. Vardy, 1 Ves. Jr. 272. 
 And even if a party intended to execute a power, but is prevented by 
 sudden death, the court will not execute the power. Pigott v. Penrice, 
 Com. 250 ; Gilb. Eq. 138; Sugd. on Powers, 392. 
 
 (n) A trust which is a personal May, 107 U. S. 310 ; Jones v. Jones, 
 
 30 N. Y. S. 177 ; Clark r. Clark, 50 
 id. 1041. When an absolute discre- 
 tion is not clearly given, to be ex- 
 ercised at the will of the person 
 empowered to make a sale or appro- 
 priation of principal, an exercise of 
 a power, to be valid, must be founded 
 
 confidence does not, on the trustee's 
 death, pass to his administrator, but 
 must be executed by a trustee spe- 
 cially appointed for the purpose. 
 Hayes v. Pratt, 147 U. S. 557; 
 Kean v. Kean (Ky.), 19 S. W. 184 ; 
 Thompson v. Ballard, 70 Md. 10. 
 Discretionary powers given in dis- upon a reasonable judgment as to 
 charge of a trust are personal and existing facts and reasonable anti- 
 
 terminate upon the donee's death. 
 Security Co. r. Snow, 70 Conn. 288; 
 Gambell r. Trippe, 75 Md. 252; 
 Sites r. Eldredge, 45 N. J. Eq. 032. 
 But a power to sell and convey a fee 
 to any one is a general power, and 
 not a personal trust, and such power 
 may be executed by a successor or 
 by an administrator. Ilinson r. Wil- 
 liamson, 74 Ala. 180; Watson i\ 
 Martin, 75 Ala. 500; Syracuse S. 
 Bank r. Porter, 36 Hun, 108; Clay 
 V. Selah V. Jr. Co., 14 Wash. 543. 
 
 Equity may limit even discre- 
 tionary powers to a reasonable, 
 honest, and just exercise thereof, 
 such having been probably intended. 
 Head r. Patterson, 44 N. J. Eq. 211 ; 
 Re Stanger, 64 L. T. 093 ; 3Iay v. 
 
 cipations of the future, having due 
 regard to the purposes for which 
 the power was given, and to the 
 rights of those whose interests are 
 injuriously affected by its exercise. 
 Lovett V. Farnham, 109 Mass. 1. One 
 who is to execute a power of sale by 
 which the interests of others will be 
 affected, must exercise not only good 
 faith, but reasonable care and dili- 
 gence, and, if others are injured by 
 the negligent exercise of the power, 
 they may appeal to equity for re- 
 dress. Price V. Bassett, 108 Mass. 
 598 
 
 (h) See In re Cunningham & 
 Frayliug, [1801] 2 Ch. 507; In re 
 Bryant, [1894] 1 Ch. 324. 
 
 371
 
 § 248.] 
 
 TRUSTS IMPLIED FROM TOWERS. [CHAP. VIII. 
 
 parties ; and when the form of the gift is such that it can be 
 construed to be a trust, the power becomes imperative, and 
 must be executed. Courts will not allow a clear trust to fail 
 for want of a trustee ; nor will they allow a trust to fail by 
 reason of any act or omission of the trustee; therefore, 
 courts will not allow a trust to fail, or to be defeated by the 
 refusal or neglect of the trustee to execute a power, if such 
 power is so given that it is reasonably certain that the donor 
 intended that it should be exercised. There are mere powers 
 and mere trusts. There are also powers which the party to 
 whom they are given is intrusted with and required to exe- 
 cute. Courts consider this last kind of power to partake so 
 much of the character of a trust to be executed, that they 
 will not allow it to fail by the failure of the donee to execute 
 it, but will execute it in the place of the donee. ^(a) Lord 
 
 1 Burgess v. Wheate, 1 Wm. Black. 162; Sugcl. on Pow. 393-398; 
 Lucas V. Lockhart, 10 Sm. & M. 466; Harrison v. Harrison, 2 Grat. 1 ; 
 
 (a) Randolph v. East Birming- 
 ham Land Co., 104 Ala. 355 ; Spitzer 
 V. Spitzer, 56 N. Y. S. 470; Towler 
 V. Towler, 142 X. Y. 371. Executors 
 may in New York execute a testa- 
 mentary power in which a donee 
 is not named. Lesser v. Lesser, 32 
 N. Y. S. 167. 
 
 The court will also enforce the 
 proper and timely exercise of a 
 power which is coupled with a trust 
 or duty, but will not interfere with 
 the trustee's discretion as to the 
 particular time or manner of his 
 bona fide exercise of it. Tempest v. 
 Camoys, 21 Ch. D. 571 ; In re Kir- 
 wan's Trusts, 25 Ch. D. 373 ; Re Bur- 
 rage, 62 L. T. 752. See Mutual Life 
 Ins. Co. *.'. Everett, 40 N. J. Eq. 3-15; 
 Towler v. Towler, 142 N. Y. 371 ; 
 Jones V. Jones, 30 N. Y. S. 177 ; 
 Correll v. Lauterbach, 36 id. 615 ; 
 McHan r. Ordway, 82 Ala. 463; 
 Dillard v. Dillard (Va.), 21 S. E. 
 372 
 
 Rep. 669 ; Dick v. Harby, 48 S. C. 
 516. A trustee cannot delegate a dis- 
 cretion, but may delegate a mere 
 ministerial duty. Bohlen's Estate, 
 75 Penn. St. 304; Gillespie v. Smith, 
 29 111. 473. 
 
 A power coupled with an interest 
 or a trust survives on the donor's 
 death. Benneson v. Savage, 130 111. 
 352 ; Wilkinson v. Buist, 124 Penn. 
 St. 253 ; Sites r. Eldredge, 45 X. J. 
 Eq. 632 ; Herriott v. Prime, 87 Hun, 
 95 ; Hilliard v. Beattie (N. H.), 39 
 Atl. 897; McXeill v. McXeill, 43 
 W. Va. 765. See upon such powers, 
 In re Hannan's Co., [1896] 2 Ch. 
 643 ; 12 Harv. L. Rev. 262 ; Hall v. 
 Gambrill, 88 F. R. 709 ; Frink r. 
 Roe, 70 Cal. 296 ; Lockart v. For- 
 sythe, 49 Mo. App. 654 ; Roland v. 
 Coleman, 76 Ga. 652 ; Reeves i'. 
 Tappan, 21 S. C. 1 ; Bredenburg v. 
 Bardin, 36 S. C. 197. It may even 
 continue after the trust is termi-
 
 CHAP. VIII.] POWERS THAT ARE TRUSTS. [§ 248. 
 
 Hardwicke observed that such powers ought rather to be 
 called trusts than i)0\vcra.^ In all cases these powers or 
 
 Grcenough v. Welles, 10 Cush. 57G ; Ericksou v. VVillard, 1 N. II. 217; 
 Harding u. Glyn, 1 Aik. 4'J(J ; Cruwys v. Colinan, li Ves. 319; Forbes c. 
 Ball, 3 Mer. 4:57; Witts '•. Boddingtou, -i Bro. Ch. 95; Walsh r. Walliu- 
 ger, 2 R. & My. 78; Gricvesou v. Kersopp, 2 Keen, G54; Jones c. 'I'orin, 
 6 Sim. 255; Martin c. Swannell, 2 Beav. 249; Fenwick c. Greenwell, 10 
 Beav. 412; Fordyce r. Brydges, 10 Beav. 90; 2 Bhill. 497; Biirrouprh r. 
 Philcox, 5 My. & Cr. 73 ; Falkner v. Wynford, l.'> L. J. Cli. y ; 9 .J ur, lou'i ; 
 Penny r. Turner, 15 Sim. 308; 2 Pliill. 493 ; Alloway r. Allovvay, 4 Dr. k 
 War. 3S0 ; Sahisbury *-. Denton, 3 K. & J. 535 ; Joel v. Mills, id. 474 ; 
 Reid V. Reid, 25 Beav. 4G9 ; Brown r. Higgs, 8 Ves. 574 ; Babbitt v. Bab- 
 bitt, 26 N. J. Eq. 44. In this case Lord Eldon said, if the power be one 
 which it is the duty of the party to execute, made his duty by the requisi- 
 tion of the will, put upon him as such by the testator, who 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 exercise it or not ; and the court adopts this principle as to trusts, and 
 will not permit his negligence, accident, or other circumstances to disap- 
 point the interest of those for whose benefit he is called upon to execute 
 it. In Att. Gen. v. Downing, Wilm. 23, Ld. Ch. J. Wilmot said, as to 
 the ol)jection that those powers are personal to the trustees, and by 
 their death become unexecutable, they are not powers but trusts, and there 
 is a very essential difference betw-een them. Powers are never imperative : 
 they leave the acts to be done at the will of the party to whom they are 
 given. Trusts are always imperative, and are obligatory uiwn the con- 
 science of the party intrusted. The court supplies the defective execution 
 of powers, but never the non-execution of them ; for they are not meant to 
 be optional. But a person who creates a trust means it shall be executed 
 at all events. The individuals named as trustees are only the nominal 
 instruments to execute that intention, and if they fail, either by death, 
 or by being under disability, or by refusing to act, the constitution has 
 provided a trustee. Where no trustees are appointed at all, the court 
 assumes the office. There is some personality in every choice of trustees, 
 but this personality is res unius cetatis, and if the trust cannot be executed 
 through the medium which was in the primary view of the testator, it must 
 be executed through the medium which the constitution has substituted in 
 his place. Brook v. Brook, 3 Sni. & Gif. 280; Withers r. Yeadon, 1 Rich. 
 Ch. 324; Miller v. Meetch, 8 Barr, 417; Gibbs v. Marsh, 2 Met. 243; 
 Grimke r. Griinke, 1 Des. Eq. 375 n. 
 1 Godolphin v. Godolphin, 1 Ves. 23. 
 
 nated: Taberc. Willetts,37N.y. S. tion. In re Sudeley, [1894] 1 Ch. 
 233 ; or after the fee has vested 334. 
 absolutely, if such was the inteu- 
 
 373
 
 § 249.] TRUSTS IMPLIED FROM POWERS. [CHAP. VIII. 
 
 trusts must be construed according to the intention of tlie 
 parties, to be gathered from the whole instrument. ^ 
 
 § 249. In all cases where parties have an imperative power 
 or discretion given to them, and they die in the testator's 
 lifetime,^ or decline the trust or office,^ or disagree as to the 
 execution of it,* or do not execute it before their death, ^ or if 
 from any other circumstance ^ the exercise of the power by 
 the party intrusted with it becomes impossible, the court 
 will imply a trust, and will put itself in the place of the 
 trustee, and will exercise the power by the most equitable 
 rule. And the court will act retrospectively in executing 
 these powers as quasi trusts ; "^ and although there may be 
 great difficulties and impracticabilities in the way, yet the 
 court will exercise the power and enforce the trust :^ for, if 
 the trust or power can by any possibility be exercised by the 
 court, the non-execution by the party intrusted shall not 
 prejudice the party beneficially interested, or the cedui que 
 trust.^ Thus a power to sell given to tenant for life as cestui 
 que trust may be executed after his death by trustees under 
 a decree of a court of equity. ^'^ 
 
 1 Kerr v. Verner, C6 Penn. St. 326 ; Guion v. Pickett, 42 Miss. 77. 
 
 2 Maberly v. Turton, 14 Ves. 499 ; Att. Gen. r. Downing, Wilm. 7; 
 Amb. 550 ; Att. Gen. v. Hickman, 2 Eq. Cas. Ab. 193. 
 
 3 Izod V. Izod, 32 Beav. 242 ; Doyley v. Att. Gen., 2 Eq. Cas. Ab. 194 ; 
 Gude V. Worthington, 3 De G. & Sm. 389. 
 
 * Wainwright v. Waterman, 1 Ves. Jr. 311; Moseley t'. Moseley, t. 
 Finch, 53. 
 
 e Harding v. Glyn, 1 Atk. 469; Croft v. Adam, 12 Sim. 639; Hewett 
 V. Hewett, 2 Eden, 332; Flanders v. Clark, 1 Yes. 10; Grieveson v. Kir- 
 sopp, 2 Keen, 653. 
 
 6 Att. Gen. v. Stephens, 3 M. & K. 347. 
 
 ■^ Maberly v. Tmtou, 14 Ves. 499 ; Edwards v. Grove, 2 De G., F. & J. 
 222. 
 
 8 Pierson v. Garnet, 1 Bro. Ch. 46. 
 
 8 Brown v. Higgs, 5 Ves. 505. 
 
 13 Faulkner v. Davis, 18 Grat. 651. "Where the discretionary power is 
 such as would not belong to the court by virtue of its jurisdiction over 
 the subject-matter, independent of the will, as, for instance, a power of 
 selecting the beneficiaries of testator's bounty, the court will not execute 
 it, and under the rules cannot confer it upon an appointee. In such 
 374
 
 CHAP. VIII.J POWERS THAT AUE TRUSTS. [§ 250. 
 
 § 250. In some cases the donor makes a direct gift to one 
 party, but subjects the gift to the discretion or power of some 
 previous taker or other party ; as if a donor limit a fund 
 "upon trust for the children of A, as B. shall appoint." In 
 such case the children of A. take a vested interest in the 
 su])ject of the gift, liable to be divested Ijy the exercise of 
 the power by B. Therefore, on the failure of the power, the 
 children of A. become as absolutely entitled as if the discre- 
 tion or })ower had never been given to B. ^ But while the 
 exercise of the power is possible, the donee of it may exer- 
 cise his discretion in favor of any that he may select; he may 
 select those who are living at the donor's death, or those 
 living at his own death. ^ In other cases an estate is vested 
 in a donee "upon trust to dispose of it among the children 
 of A." Here the children of A. take nothing directly Ity 
 way of the gift, but their interest must come to them through 
 the medium of the power. ^ If the trust is to dispose of it 
 equally among the children of A., the bequest, though in 
 form a power, is equivalent to a simple gift.^ If the donee 
 may distribute or dispose of it unequally among the children 
 of A., and no distrilnition or disposition is made by him, 
 the court will execute the power and distribute the fund 
 equally among the objects of it.^ In other cases the property 
 
 cases it is executed equitably by distributing equally among the distribu- 
 tees. But where the discretion applies to some ministerial act, as leasing 
 or selling lanl, felling timber, and the like, the court will exercise control. 
 Druid Park Heights Co. v. Oettinger, 53 Md. 63. 
 
 ^ Davy V. Iluoper, 2 Vern. GG5 ; Jones r. Torin, 6 Sim. 255 ; Fenwick 
 r. Greenwell, 10 Beav. 412 ; Hockley v. :Mawbey, 1 Yes. Jr. 143, 149, 150; 
 Madoc r. Jackson, 2 Bro. Ch. 58S ; Falkner v. Wynford, 9 Jur. 1006; 
 Rhett V. Mason, 18 Grat. 541 ; Carson v. Carson, Phill. (N. C.) Eq. 57. 
 
 2 Lambert v. Thwaites, Law K. 2 Eq. 151; Woodcock r. Keuneck, 
 4 Beav. 190 ; affirmed, 1 Phill. 72. 
 
 8 Ward V. Morgan, 5 Cold. 407. 
 
 * llayiur r. Mowbray, 3 Bro. Ch. 234 ; Phillips v. Garth, id. 64. 
 
 6 Hands V. Hands, 1 T. R. 437, note; Pope v. Whitcomb, 3 Mer. 698; 
 7?e White's Trust, 1 Johns. 650; Finch r. Hollin-sworth, 21 Beav. 112; 
 Brown r. Pocock, 6 Sim. 257; Grieveson v. Kirsopp, 2 Keen, 656; Walch 
 r. Wallinger, 2 R. & M. 78; Tam. 425 ; 1 Rev. Stat. X. Y. 734, § 100; 
 Dominick v. Sayre, 3 Saudf . 555 ; Hoag v. Keuney, 25 Barb. 396. 
 
 375
 
 § 251.] TEUSTS IMPLIED FROM POWERS. [CHAP. VIII. 
 
 is vested in a donee with a discretion as to the objects to 
 which, and also as to the proportions in which, it is to be 
 given over. Of course the first question to be determined in 
 all such cases is. Did the donor intend to give a mere power, 
 or did he create a trust, or will the court imply a trust ? 
 Lord Cottenham stated the general rule deduced from the 
 cases as follows : " When there appears a general intention 
 in favor of a class, and a particular intention in favor of 
 individuals of a class to be selected by another person, and 
 the particular intention fails from that selection not being 
 made, the court will carry into effect the general intention 
 in favor of the class. When such an intention appears, the 
 case arises, as stated by Lord Eldon in Brown v. Higgs,^ of 
 the power being so given as to make it the duty of the donee 
 to execute it; and, in such case, the court will not permit 
 the objects of the power to suffer by the negligence or con- 
 duct of the donee, but fastens upon the property a trust for 
 their benefit. " ^ (a) 
 
 § 251. Thus, where a testator gave an estate "to A. upon 
 trust (subject to certain charges), to employ the remainder 
 of the rent for such children of B. as A. should think most 
 deserving, and that will make the best use of it, or for the 
 children of his nephew, C, if any there are, or shall be," 
 and A. died in the testator's lifetime, it was held to be a 
 trust in favor of all the children of B. and C.^ So where a 
 testator directed certain property to remain until certain 
 contingencies, and then gave life-estates in the property to 
 two of his children, with remainder to their issue, and de- 
 clared that in case his two children had no issue, the same 
 
 1 8 Ves. 574; 18 id. 192. 
 
 2 Burrough v. Philcox, 5 My. & Cr. 72; Witts v. Boddington, 3 Bro. 
 Ch. 9.5; 5 Ves. 503; Harding r. Glyn, 1 Atk. 469. 
 
 « Brown v. Higgs, 4 Ves. 708; 5 Ves. 495; 8 Ves. 574; 18 Ves. 192 ; 
 2 Sugd on Pow. 176; Longmore r. Broom, 7 Ves. 124; Jones v. Torin, 
 6 Sim. 255 ; Prevost v. Clark, 2 ]\Iadd. 4.58; Penny v. Turner, 2 Phill. 473; 
 Fordyce v. Bridges, id. 497 ; White in re, John. 658. 
 
 (a) See 1 Ames on Trusts (2d ed.), 87, n. 
 
 376
 
 CHA.P. Vlir.] POWERS THAT ARE TRUSTS. [§ 251. 
 
 should be disposed of by the survivor by will among his 
 iK'j)he\vs and nieces or their children, or either of them, or to 
 as many of them as his surviving cliild should think ])ropcr, 
 it was held to be a trust in favor of the nephews and nieces 
 and their children, subject to the power of selection and 
 distribution by the surviving child. ^ So where a testator 
 gave to B. in tail, and if she had no issue, she was to settle 
 the estate upon such person as she thought fit by will, "con- 
 fiding " in her not to transfer the estate from his nearest 
 family, it was held to be a trust for the heir who was the 
 nearest family or relation within the meaning of the will. 2 
 And where a testator gave his property to his son in trust to 
 a})ply the income to the use of himself and family, and to 
 give by deed or will all beyond what he should so apply, unto 
 all or any child or children of his own in such proj)ortions 
 and in such manner as he should see lit, and his son died 
 having devised the property to his wife with directions to his 
 executors to act under the will of his father, it was held to 
 be a trust coupled with a power to appoint at his discretion 
 among his children, that the power could not be delegated, 
 that the son's will was not an execution of the power, and 
 that his children took equally under their grandfather's will.^ 
 Where a man gave his property "wholly" to his wife to be 
 disposed of by her and divided among his children at her 
 discretion, the children took under the will and not as her 
 heirs, in default of any distribution by her.'* And where a 
 testator gave his estate to his wife during her life, and 
 gave all the remainder to his two brothers A. and B. who 
 were also his executors, "with full confidence that they will 
 dispose of such residue among our brothers and sisters and 
 their children, as they shall judge shall be most in need of 
 the same, this to be done according to the best of their dis- 
 cretion;" it was held to be a trust for the brothers and sis- 
 ters and their children, to the exclusion of A. and B. and 
 
 1 Burrongh i-. Philcox, 5 My. & Cr. 73. 
 
 - Griffiths V. Evans, 5 Reav. 211. 
 8 AVitliers v. Yeadon, 1 Rich. Eq. 324. 
 
 * Collins V. Carlisle, 7 B. Mon. 11 ; Russell v. Kennedy, 3 Rrews. 438. 
 
 377
 
 § 252 ] TKUSTS IMPLIED FROM POWERS. [cHAP. VIII. 
 
 their children; and the court executed the trust, and exer- 
 cised the powers. 1 Where a testator gave his wife certain 
 property, and desired her "to give the same unto and among 
 such of the testator's relations as she should think most 
 deserving and ap])rove of," after the death of the wife with- 
 out appointing, the court decreed a trust, and divided the 
 property equally among the relations.^ Where a tenant for 
 life "is desired to give it among his children as he should 
 think fit, "3 or the "residue is to be disposed of among her 
 children as she shall think proper, " ^ or where after the death 
 of testator's wife the gift " is to such of his grandchildren as 
 she should appoint,"^ it was held to be a trust for selection 
 or distribution, and in default of the exercise of the power 
 the court enforced it as a trust and distributed it equally 
 among all the objects named. ^ In such cases the word 
 "children " will embrace grandchildren if such appears to be 
 the general intent of the donor.'' {a) 
 
 § 252. But where a testator empowered his wife to give 
 away XIOOO of his estate at her death, £100 to A., XlOO to 
 B., and the rest by her will, and he died without having 
 
 1 Bull V. Bull, S Conn. 47 ; see Gilbert v. Chapin, 19 Conn. 351 ; Har- 
 per V. Phelps, 21 Conn. 257. 
 
 2 Harding v. Glyn, 1 Atk. 469. 
 8 2 Sugd. on Pow. 181. 
 
 * Kemp V. Kemp, 5 Ves. 849. 
 
 6 Witts V. Boddington, 3 Bro. Ch. 95. 
 
 6 Whitehurst v. Ilarker, 2 Ire. Ch. 292; Fowler v. Hunter, 2 Y. & J. 
 506; Longmore r. Brown, 7 Ves. 124; Salusbury v. Denton, 3 Kay & J. 
 529 ; Kennedy v. Kingston, 2 J. & W. 431 ; Davy v. Hooper, 2 Vern. 665; 
 Maddisou v. Andrew, 1 Ves. 57; Hockley v. Mawbey, 1 Ves. Jr. 143; 
 Croft V. Adam, 12 Sim. 639 ; Brown v. Pocock, 6 Sim. 257 ; McNeilledge 
 V. Galbrath, 8 Serg. & 11. 43; Harrison v. Harrison, 2 Grat. 1 ; Frazier v. 
 Frazier, 2 Leigh, 642 ; Cruse v. McKee, 2 Head, 1 ; Thompson v. Norris, 
 2 N. J. Eq. 489 ; Jecko v. Lansing, 45 Mo. 167. 
 
 ' Ingraham v. Meade, 3 Wall. Jr. 32. 
 
 (rt) Such intention must, it seems, 91 Ky. 601; Bowker ?;. Bowker, 148 
 be clear, or this construction be Mass. 198 ; Bragg v. Carter, 171 
 necessary to make the grant or de- Mass. 324. 
 vise effective. Ormsby v. Duraesnil, 
 378
 
 CHAP. VIII.] POWERS THAT ARE TRUSTS. 
 
 [§ 2o2. 
 
 executed the power, it was held to bo a mere power, and no 
 trust, and the court refused to carry it into effect. *(a) So 
 where a testator gave X80,000 to his wife for life, to be 
 distributed at her decease to and ani()nj:st such of his chil- 
 dren and in such manner and jtroportion as she shouhl ap- 
 point, it was hehl to be a mere posver wliich the court could 
 not execute in default of an appointment by hcr.2(/>) 
 
 1 Bull r. Vardy, 1 Vos. Jr. 279 ; In re Eddowes, 1 Dr. & Sra. 395. 
 
 2 Marlborough v. Godolpliin, 2 Ves. Gl ; 5 Ves. Jr. 500. In tbis case 
 Lord Ilardwicke drew a distinction between a gift " amongst my childreu 
 as A. should appoint," which he considered a trust, and a gift " among 
 such of my children as A. should appoint," which he considered a mere 
 power. This distinction, however, is not now acted upon. Crossling v. 
 Crossling, 2 Cox, 39G, is to the same effect as ^Marlborough v. Godolphin. 
 These cases have not been expressly overruled, but they have not been 
 followed in the later cases, and if they were to come before the courts at 
 the present day, it is probable that they would be held to be implied 
 trusts, and not mere powers, as courts will, if possible, construe such be- 
 
 (a) A life estate, coupled with a 
 power of sale, to, the donor's widow, 
 if the income is insufficient for sup- 
 port, is a personal power, which is 
 not assignable, or liable for the life- 
 tenant's debts. Phillips v. Wood, 
 16 R. I. 27-1; Brown v. Phillips, id. 
 G12; llyan v. Mahan (R. I.), 39 
 Atl. 893 ; Welsh v. Woodbury, 144 
 Mass. 542; Hoxie v. Finney, 147 
 Mass. 616; Ladd r. Chase, 155 
 Mass. 417 ; Security Co. v. Snow, 
 70 Conn. 288. Such a power so 
 added does not raise the life-estate 
 to a fee. Ducker v. Burnham, 146 
 111. 9. It does enable the widow to 
 mortgage. Kent v. Morrison, 153 
 Mass. 137. 
 
 (li) See Welch v. Ilenshaw, 170 
 Mass. 409 ; Carroll i\ Shea, 149 ]\Iass. 
 317; Burbank r. Sweeney, 161 Mass. 
 490; Peirsnl c. Roop, 56 N. J. Eq. 
 739; Gulick c. Griswold, 43 N. Y. 
 S. 443. Rents and profits which, as 
 
 income, a widow is empowered to 
 use in whole or in part, fall into the 
 residue, if not used by her. Brun- 
 son V. Martin (Ind.), 52 N. E. 599. 
 The cited case of Marlborough v. 
 Godolphin appears to be now over- 
 ruled. Of it Lord St. Leonards (on 
 Powers, p. 592) says: "As the 
 right to exclude some does not pre- 
 vent the class from taking in de- 
 fault of appointment, it should 
 seem that if a case in the very 
 terms of Duke of Marlborough v. 
 Godol{)hin were now to occur, it 
 would be decided that the children 
 took as tenants in common in de- 
 fault of appointments, either by 
 implication, which seems the true 
 construction, or because the power 
 was coupled with a trust." This is 
 approved in Salusbury c. Denton, 
 supra, in note, and in Wilson v. Du- 
 guid, 21 Ch. D. 244, tiie latter case 
 fully reviewing the older authorities. 
 379
 
 § 253.] 
 
 TRUSTS IMPLIED FROM POWERS. [CHAP. VIII. 
 
 § 253. If the power to be executed is so uncertain as to its 
 objects, that a court of equity cannot say what particular 
 person or persons or class of persons arc to take an interest 
 under it as a trust, it will be considered a mere power which 
 cannot be carried into effect;^ (a) or if the subject-matter to 
 be affected by the power is too uncertain to be dealt with 
 by the court, a trust will not be implied. ^ And where there 
 is an express limitation of the property over in case the 
 power is not executed, of course no trust can be implied.^ 
 
 quests into gifts to the parties to be benefited. Hill on Trust. 69 ; 2 Sugd. 
 on Powers, 181 ; Brown v. Pocock, 6 Sim. 257. 
 
 1 Stubbs V. Sargon, 2 Keen, 255 ; Ommanny v. Butcher, 1 T. & R. 260; 
 Wheeler v. Smith, 9 How. 79; Robinson v. Allen, 11 Grat. 785; Harper 
 V. Phelps, 21 Conn. 257; Thompson y. McKissick, 3 Humph. 631; Ellis v. 
 Ellis, 15 Ala. 296. 
 
 2 Gibbs V. Marsh, 2 Met. 243. 
 
 8 Pritchard v. Juinchant, Amb. 126 ; 5 Ves. 596, n. ; 2 Sugd. on Pow. 
 183 ; Lines v. Durden, 5 Fla. 51. 
 
 (a) "If, considering all the cir- 
 cumstances, the intention be doubt- 
 ful, the doubt will prevent the 
 instrument from being deemed an 
 execution of the power." Mason 
 V. Wheeler, 19 R. I. 21 ; see Lee v. 
 Simpson, 134 U. S. 572 ; Patterson 
 V. Wilson, 64 Md. 193; Funk v. 
 Eggleston, 92 111. 515; Farlow v. 
 Farlow, 83 Md. 118; McMillan v. 
 Deering, 139 Ind. 70. " If a person 
 has an interest in one subject, and 
 a power over another, and uses gen- 
 eral words of disposition only, those 
 words will not operate as an exer- 
 cise of the power. It is otherwise 
 when he has no interest, but only a 
 power. The same principle must, 
 I think, apply to a case where a 
 person has a power of appointment, 
 and also a power of revocation and 
 new appointment. The general 
 ■words of appointment ought not 
 to be held to be an exercise of the 
 380 
 
 power of revocation. If there was 
 no power except one of revocation 
 and new appointment, it would be 
 different, and the general words 
 would be then held to be an exer- 
 cise of that power. I think it clear 
 that an intention must be shown to 
 revoke and undo what has been 
 already done." Turner, L. J., in 
 Pomfret v. Perring, 5 D. M. & G. 
 775, 781 ; see In re Wells' Trusts, 
 42 Ch. D. 646, 655; McGibbon v. 
 Abbott, 10 A. C. 653. 
 
 An act evidently performed in 
 execution of a power need not ap- 
 pear by written evidence to be done 
 under the instrument creating it, 
 and such act may be presumed to 
 be in execution of the power. 
 Walke V. Moore (Va.), 30 S. E. 
 374 ; Ridgely v. Cross, 83 Ud. 161 ; 
 Cooper V. Haines, 70 Md. 282 ; Xew 
 England M. S. Co. v. Buice, 98 Ga. 
 795; Dick v. Harby, 48 S. C. 516;
 
 CHAP. VIII.] POWEKS THAT ARE TRUSTS. [§ 254. 
 
 § 254. The general rule is, that the power given must be 
 strictly executed as given, or it will remain as a trust for 
 the person or class in whose favor it is given; thus, if the 
 donee is to dispose of the property to such persons of a jiar- 
 ticular class as she shall select in a last will and testament, 
 and the disposition is made by a deed, the power is not exe- 
 cuted, and it will be construed into a trust for the whole 
 class, or will go over, if there is a gift over in default of an 
 appointment or execution of the power. ^ (a) So if the power 
 is attempted to be executed in favor of a person or a class, 
 outside of the persons or classes in whose favor it is given, 
 the execution will be bad, and it will remain as a trust for 
 all those in whose favor it was given. ^ As if the power is to 
 distribute among children, it cannot be executed by a distri- 
 bution among grandchildren. ^ Where the power is to dis- 
 tribute among a certain class, something must be given to 
 each one or the execution of the power is bad.* (5) But the 
 
 1 Moore v. Dimond, 5 R. I. 121 ; Benthara v. Smith, 1 Cheev. 33 (2d 
 part); Haslen v. Kean, 2 Taylor, 279; Christy v. Pulliam, 17 111. 59; 
 Balteel r. Plumer, L. R. 8 Eq. 585; Garth i'. Towuseiid, L. R. 7 Eq. 220; 
 Thacker r. Kay, L. R. 8 Eq. 408. 
 
 2 Jarnagin v. Conway, 2 Humph. 50 ; Ilorwitz v. Norris, 49 Pa. St. 
 219; Knight r. Garborough, Gilmer, 27 ; Little v. Bennett, 5 Jones, Eq, 
 156; Lippincott r. Ridgway, 3 Stockt. 526; Varrell ;;. Wendell, 20 X. H. 
 431; Wickesham r. Savage, 58 Penn. St. 219; In re Gratwick's Trust, 
 L. R. 1 Eq. 117 ; Carson v. Carson, Phill. Eq. (N. C.) 57. 
 
 8 Horwitz v. Norris, 49 Penn. St. 219 ; Churchill v. Churchill, L. R. 
 5 Eq. 41; jNIoriarty v. Martin, 3 Ir. Ch. 26. 
 
 * Ibid.; Lippincott v. Ridgway, 2 Stockt. 164; 3 id. 526; Booth r. 
 Alington, 39 Eng. L. & Eq. 250. It seems that this is not the rule in 
 Pennsylvania. Graeff v. De Turk, 44 Penn. St. 527. 
 
 Cuniston v. Bartlctt, 149 Mass. 243; personalty, for the appointee's chil- 
 
 Sweeney v. "Warren, 127 N. Y. 42(); dren. In re Iluddleston, [1S94] 3 
 
 ]\IcCreary r. Bomberger, 151 Penn. Ch. 595. See Harvard College r. 
 
 St. 323; Hill v. Conrad (Texas), Balch, 171 111. 275. 
 43 S. W. 789. A will which directs (a) Thra.'^her v. Ballard, 33 W. 
 
 the division among children of " all Va. 285; Sires v. Sires, 43 S. C. 266. 
 my property of every kind," is not (6) Under a direction in a will 
 
 an execution of a special power of to the testator's widow to divide his 
 
 appointment by deed or will over realty between his children " to the 
 
 381
 
 § 255.] TRUSTS IMPLIED FROM POWERS. [CIIAP. VIII- 
 
 proportion is left to the trustee.' And the donee of the 
 power cannot execute it in favor of himself or his family, 
 imless the terms of the power specially authorize him so to 
 do. 2 Nor can he delegate the power or the execution of it to 
 others.'^ It must be executed within the time named in the 
 instrument,* and if the appointment is to be made at a per- 
 son's decease, it must be by will.^ It must also be executed 
 for the precise purpose declared, and when the purpose be- 
 comes wholly unattainable the power ceases.^ 
 
 § 255. Generally, if the power is left unexecuted by the 
 donee, the court will execute it as a trust, by dividing the 
 fund equally among the objects or persons in favor of whom 
 it was given, or from whom the selection might have been 
 made, on the ground that equality is equity.'' But if the 
 donor of the power lays down any rule by which the donee 
 or trustee is to be governed in his selection and distribution 
 of the fund, it is said the court will place itself in the posi- 
 tion of the trustee. If the discretion of the trustee is to be 
 founded upon, or measured by, a state of facts which the 
 court can inquire into and apply as effectually as a private 
 
 1 Portsmouth v. Shackford, 46 N. H. 423. 
 
 2 Bostick V. Winton, 1 Sneed, 524 ; Cruse v. McKee, 2 Head, 1 ; Holt 
 V. Hogan, 5 Jones, Eq. 82; Bull v. Bull, 8 Conn. 47; Cooper v. Cooper, 
 L. R. 8 Eq. 312. 
 
 8 Singleton v. Scott, 11 Iowa, 589; Haslen v. Kean, 2 Taylor, 279; 
 Withers v. Yeadon, 1 Rich. Eq. .324; Carr v. Atkinson, L. R. 14 Eq. 400; 
 Webb V. Sadler, L. R. 14 Eq. 533. 
 
 * Cooper V. Martin, L. R. 3 Eq. 47. 
 
 6 Freelaud i'. Pearson, L. R. 3 Eq. 658. 
 
 6 Hetzel V. Hetzel, 69 N. Y. 1 ; Brown v. Meigs, 11 Hun (N. Y.), 203. 
 
 T Doyley v. Attorney General, 2 Eq. Cas. Ab. 195; Longmorej;. Broom, 
 7 Ves. 124; Salusbury v. Denton, 3 K. & J. 403; Tzod v. Izod, 32 Beav. 
 249 ; Gray i'. Gray, 13 Ir. Ch. 404 ; Fordyce v. Brydges, 2 Phill. 497 ; 
 Penny v. Turner, id. 493 ; Whithurst v. Harker, 2 Ir. Ch. 492 ; Kennedy 
 ?'. Kingston, 2 J. & W. 431; Frazier r. Frazier, 2 Leigh, 642; Cruse v. 
 McKee, 2 Head, 1; Davy v. Hooper, 2 Vern. 665. 
 
 best advantage, as she sees fit and 103 Ala. 556 ; Morffew r. San Fran- 
 proper," no child can be cut off. cisco, &c. R. Co., 107 Cal. 587. See 
 Faloou r. Flannery (Minn.), 76 McGibbon v. Abbott, 10 A. C. 653. 
 N. W. 954; Hatchett v. Hatchett, 
 382
 
 CHAP. VII [.] HOW THE COURT WILL EXECUTE THEM. [§ 205. 
 
 person could, it "can look with the eyes of the trustee," and 
 can substitute its own judgment for that of the individual. 
 Lord Ilardwicke said in a case Ijcfore hiui, "Here a rule is 
 laid down ; the trustees are to judj^e of the occasicjus and 
 necessities of tiie family; the court can judge of such neces- 
 sity; that is a judgment to he made from existing facts, so 
 that the court can make the judgment as well as the trustee, 
 and, when informed by evidence of the necessity, can judge 
 what is equitable and just on this necessity; " and his Lord- 
 ship referred the case to a master to report the facts, and 
 decreed a distribution according to the necessities found.* 
 This doctrine has been acted upon in similar cases.^ In 
 others, the courts have said that it was "impossible to dis- 
 tinguish between degrees ot poverty," and that they would 
 not attempt to apply the discretion given to the donee of the 
 power, but would divide the fund equally. ^ This conflict of 
 authority leaves the question Oj)cn for further discussion. It 
 would seem that there is no imj)Ossibility in the nature of 
 things "in distinguishing between degrees of poverty," or in 
 deciding what class of persons or relations come within the 
 description, and should take under the gift of che donor. 
 Lord Hardwicke's observations are just, and can be acted 
 upon by courts. It is not so much a question whether courts 
 of equity can exercise the discretion given to the trustee, as 
 whether it is consistent with the dignity of courts to inquire 
 into the relative necessities of a testator's relations, or 
 whether they have the time to enter into such inquiries. So 
 far as the dignity of courts is concerned, they may well re- 
 member that they arc created to administer justice and 
 equity to the jieople, and that no inquiries or decrees that 
 can be successfully made are inconsistent with their position 
 or duties.'* 
 
 ^ Gower v. Mainwaring, 2 Ves. 87. !Mr. Belt's edition has a misprint, 
 the court cannot judge. 
 
 2 Liloy t: Hey, 1 Hare, 581 ; Ilewett v. Ilewett, 2 Eden, 332; Maberly 
 r. Turtoi), 11 Ves. 400; Bull r. Bull, 8 Conn. 48. 
 
 8 :McXeilledge v. Galbrath, 8 Scrg. & R. 43; Harrison v. Harri.son, 2 
 Grat. 1 ; Withers v. Yeadon. 1 Rich. Ch. 324. 
 
 * Upon the general subject of bequests to poor or necessitous relations, 
 
 383
 
 § 256.] TRUSTS IMPLIED FKOM TOWERS. [CHAP. YIII. 
 
 § 256. If the donee of the power or trustee is to select from 
 the donor's relations those to whom he is to give the prop- 
 erty, in the execution of the power he may select from the 
 whole circle of relations, whether near or distant;^ and he 
 may exclude some;^ but if the power is to distribute to the 
 donor's relations, then the donee must confine himself to the 
 relations that are so near that they would take under the 
 statute of distributions.^ Courts have adopted the rule of 
 the statute of distributions as a convenient rule in such cases, 
 to prevent such gifts from being void for uncertainty. If the 
 power devolves upon the court as a trust, whether it is one of 
 selection or distribution, the court will act upon the rule of 
 the statute of distributions,* unless the donor has himself 
 established some rule of selection or distribution which the 
 court can act upon.^ And the same rule applies if the donor 
 uses the word " family. " ^ A gift to nearest relations or next 
 of kin must be administered in the same way.'^ But it is said 
 that a power of selection will be implied in the donee in the 
 
 see Att. Gen. v. Buckland, 1 Ves. 231; Amb. 71; Anon. 1 P. Wms. 327; 
 Widmore v. Woodroffe, Amb. 636; Brunsden v. Woolredge, id. 507; 
 Mahon v. Savage, 1 Sch. & Lef. Ill ; Green v. Howard, 1 Bro. Ch. 38. 
 
 1 Grant v. Lynham, 4 Russ. 292; Brown u. Higgs, 5 Ves. 501; Cruwys 
 V. Colman, 9 Ves. 324 ; Swift v. Gregson, 1 T. R. 435, note f ; Salusbury 
 V. Denton, 3 K. & J. 536 ; Supple v. Lowson, Amb. 729 ; Harding v. Glyn, 
 
 1 Atk. 469; Mahon v. Savage, 1 Sch. & Lef. Ill; Huling v. Farrer, 9 
 R. I. 410 ; Brunsden v. Woolredge, Amb. 507, seems inconsistent with 
 the other authorities. 
 
 2 Ingraham v. Meade, 3 Wall. Jr. 32. 
 
 8 Clapton V. Bulmer, 10 Sim. 426; 5 My. & Cr. 108; Att. Gen. v. 
 Price, 17 Ves. 373, note a; Isaac v. Defriez, Amb. 595; Carr v. Bedford, 
 
 2 Ch. R. 146; Pope v. Whitcombe, 3 Mer. 437 ; In re Jeaffreson's Trusts, 
 L. R. 2 Eq. 276 ; Forbes v. Ball, 3 Mer. 437. This case seems inconsis- 
 tent, but the question was whether it was a power or a trust, and not 
 ■whether the authority was exceeded. 
 
 * Bennett v. Honywood, Amb. 708; Hutchinson v. Hutchinson, 13 Ir. 
 Eq. 332 ; Gough v. Bult, 16 Sim. 45 ; Cowper v. Mantell, 22 Beav. 231. 
 
 ^ Ibid. ; or unless the gift is in some sense a charity. White v. White, 
 7 Ves. 423 ; Mahon v. Savage, 1 Sch. & Lef. Ill; Att. Gen. v. Price, 17 
 Ves. 371; Isaac v. Defriez, id. 373, note a. 
 
 ^ Cruwys v. Colman, 9 A^'es. 319; Grant v. Lynham, 4 Russ. 297. 
 
 ^ Edge V. Salisbury, Amb. 70 ; Goodiuge v. Goodinge, 1 Ves. 231. 
 384
 
 CIIAl'. VIII.] now THK COURT WILL EXKCUTE TIIH.M. [§ 257. 
 
 case of rol.ations, whore it would not have hcon implied in 
 the case of children. ^ (a) A power to an unmarried woman 
 to appoint to hfr family or n(;xt of kin may extend to any 
 relative, 2 and such power may be executed after coverture. ^ 
 
 § 257. Intimately connected with this subject is the in- 
 quiry whether courts will execute the ])ower of distribution 
 among the ])crsons intended, by distributing prr capita or jjer 
 Stirpes. Upon this matter it is to bo observed that courts 
 have adopted the statute of distriljutions as a convenient rule 
 to point out the relations intended by a donor, when ho uses 
 that word in a gift. The only reason for adopting the rule 
 was to prevent the gift from failing for uncertainty. The 
 rule is used to point out the persons intended to take, but the 
 terras of the gift are used to point out the proportions. If, 
 therefore, there is no rule in the gift which can apply to de- 
 termine the proportions, the court will make the distribution 
 per capita, and everybody within the rule will take equally as 
 tenants in common.* But if the gift is to the next of kin of 
 tnc donor, it will be confined to the nearest relations ; and 
 those who w'ould take by representation under the statute of 
 distributions will be excluded if there are relations a degree 
 nearer.^ (?>) If the gift is to "my surviving nephews and 
 nieces " after paying certain legacies and the termination of 
 
 1 Spring r. Biles, 1 T. R. 435, note f ; Mahon v. Savage, 1 Sch. & Lef . 
 Ill; Salusbury c. Denton, 3 K. & J. 53G; Pope v. Whitcombe, 3 Mer. 
 689. 
 
 2 Snow V. Teed, L. R. 9 Eq. 622. 
 
 8 Wood V. Wood, L. R. 10 Eq. 220. 
 
 4 Walker v. Maunde, 19 Ves. 427 ; Thomas v. Hole, Cas. t. Talb. 251 ; 
 Phillips V. Garth, 3 Bro. Ch. 64; Stamp v. Cooke, 1 Cox, 32G; Hinckley 
 V. Maclaerns, 1 Myl. & K. 27; Withy v. Mangles, 4 Beav. 358; 10 01. & 
 Fin. 215; Green v. Howard, 1 Bro. Ch. 33; Pope v. Whitcombe, 3 Mer. 
 689; Rayner v. JNlowbray, 3 Bro. Ch. 234 ; De Laurencel v. De Boom, 67 
 Cal. 362. 
 
 6 Elmsley v. Young, 2 Myl. & K. 780 ; Withy v. Mangles, 4 Beav. 358 ; 
 10 CI. & Fin. 215. 
 
 (a) See Jn re Veale's Trusts, 4 (J)) See Harris v. Newton, 46 
 
 Ch. D. 61, 67; Wilson i;. Duguid, L. J. Ch. 268. 
 24 Ch. D. 244, 251. 
 
 VOL. I. — 25 385
 
 § 258.] TRUSTS IMPLIED FROM POWERS. [CIIAP. VIII. 
 
 certain life estates, the representatives of a nephew who sur- 
 vived the testator, but died before the time for distribution, 
 have no share. ^ If the fund is left for the "maintenance 
 and education " of two children named, each will share 
 equally without regard to their differing nceds.^ If the 
 subject-matter of the gift is incapable of division, and is to 
 be bestowed u\)on some one of a class to be selected by the 
 donee, and no selection is made, the court will notwithstand- 
 ing execute the power as a trust, if by any possibility it can 
 be done.^ 
 
 § 258. Another difficult question which courts must decide 
 when they are called upon to execute these powers or trusts, 
 is, whether the fund shall be distributed to the parties in 
 interest living at the donor's death, or to those living at the 
 donee's death. Upon this matter it has been determined 
 that when it appears that the donee is to have his whole life 
 to make the selection or distribution, or if the donee is to 
 have the use of the fund for his life, then the court will dis- 
 tribute it to the parties entitled living at the death of the 
 donee.* But if the donee is to make the distribution imme- 
 diately^ or as soon as may be, the court, on his death, with- 
 out executing the power, will distribute the fund among those 
 entitled at the death of the donor ;^ and the same rule will 
 be followed if the donee die before the donor.^ These rules, 
 
 1 Denny v. Kettel, 135 Mass. 138. 
 
 2 Jones V. Foote, 137 Mass. 543. 
 
 8 Moseley v. Moseley, R. t. Finch, 53; Clarke xk Turner, Freem. 199 ; 
 Richardson v. Chapman, 7 Bro. P. C. 318; Brown v. Higgs, 5 Yes. 504. 
 
 ■* Cruwys v. Colman, 9 Yes. 319; Brown v. Pocock, 6 Sim. 257; Bon- 
 ser V. Kinnear, 2 Gif. 195; Birch v. Wade, 3 Yes. & B. 198; Walsh v. 
 Wallinger, 2 R. & M. 78 ; Burrough v. Philcox, 5 My. & Cr. 72; Wood- 
 cock V. Renneck, 4 Beav. 190 ; 1 Phill. 72 ; Finch v. Hollingsworth, 21 
 Beav. 112; Doyley v. Att. Gen., 2 Eq. Cas. Ab. 194, pi. 15; Witts v. 
 Boddington, 3 Bro. Ch. 95; Winn v. Fenwick, 11 Beav. 438; Tiffin v. 
 Longman, 15 Beav. 275; Grieveson v. Kirsopp, 2 Keen, 653; Freeland 
 V. Pearson, L. R. 3 Eq. 658. 
 
 ^ Brown v. Higgs, 4 Yes. 708; Longmore i\ Broom, 7 Yes. 124; Cole 
 V. Wade, 16 Yes. 27. 
 
 6 Penny v. Turner, 2 Phill. 493 ; Hutchinson v. Hutchinson, 13 Ir. Eq. 332. 
 386
 
 CHAP. VIII.] HOW THE COUKT WILL EXECUTE THEM. [§ 258. 
 
 however, are iij)plical)lc only when the final beneficiaries take 
 through the medium of tlie power; for if they take directly by 
 the form of the gift subject to be defeated by the execution 
 of the power, they have a vested interest at the Icatli of the 
 donor, and of course those living at that time will take, if 
 the power is not executed to defeat them.^ Where the donee 
 may execute the power by deed or will at any time during his 
 life, and ho dies leaving tho power unexecuted, there is a 
 conllict of the authorities upon the question to whom should 
 the court give the funds: Mr. Lcwin says that there is an 
 equal conflict of principle. 2 
 
 1 Lambert v. Thwaites, L. R. 2 Eq. 151. 
 
 a Doyley r. Att. Gen., 2 Eq. Cas. Ab. 195; Harding v. Gljn, 1 Atk. 
 469; Pope v. Whitcombe, 3 ISIer. 089, are authorities that those living at 
 the death of the donee should take. On the other hand, the cases of 
 Hands v. Hands, 1 T. R. 437, note ; Grieveson v. Kirsopp, 2 Keen, 653, 
 are authorities that those living at the death of the donor should take. 
 Mr. Lewin says, p. 600 (5th ed. Lond.) : " Upon principle, too, as well as 
 ui)on authority, this question is attended with difficulty. On the one 
 hand, the power may be properly exercised by the donee at any time be- 
 fore his death, and there is no obligation to exercise it earlier, and if any 
 niembei's of the class die before the power is exercised, they, according to 
 the ordinary rule, cease to be objects of it. The donee of the power lias 
 an undoubted right to postpone the execution of it until the last moment 
 of his life, and the only default which the court has to supply, is the non- 
 exercise yu5< before his death ; and that default must, therefore, be supplied 
 in favor of those who were objects at the date of the death of the donee. 
 On the other hand, the donee of the power may exercise it in favor of 
 the class existing at the time of exercise, to the exclusion of those who 
 have died before, and also, where the power is one of selection, to the ex- 
 clusion of those who may come into esse subsequently, but the court can- 
 not act arbitrarily, and cannot show any favor, but must observe equality 
 towards all. Who, then, are the objects of the power ? As it was not 
 the duty of the donee of the power to exercise it at one time more than 
 another, the only objects of the power must be all those who might by 
 possibility have taken a benefit under it ; that is, those living at the death 
 of the testator, and those who come into being during the continuance of 
 the life-estate ; otherwise, should all the class predecease the tenant for 
 life (an event not improbable where children or some limited class of rela- 
 tions are the objects), there would be a power imperative which is con- 
 strued a trust, and no cestxii que trust, — a result which, it is conceived, 
 the court would be somewhat unwilling to adopt. 
 
 387
 
 ACCEPTANCE OF THE TKUST. [CHAP. IX. 
 
 CHAPTER IX. 
 
 APPOINTMENT, ACCEPTANCE, DISCLAIMER, REMOVAL, RESIGNA- 
 TION, SUBSTITUTION, AND NUMBER OF TRUSTEES, AND APPOINT- 
 MENT UNDER A POWER. 
 
 § 259. Acceptance of the trust — how and when it should be accepted 
 
 § 260. What is an acceptance, and its effect. 
 
 § 261. How an acceptance may be shown. 
 
 § 261 a. Trustee's bond. 
 §§ 262, 263. Where an executor is also named as trustee. 
 
 § 264. Of the executor of an executor, or the executor of a trustee 
 
 § 26.5. Trustee de son tort. 
 
 § 266. No such thing as a passive trustee. 
 
 § 267. Disclaimer by trustee. 
 
 § 268. Cannot disclaim after acceptance. 
 
 § 269. Whether an heir can disclaim after the death of the trustee. 
 
 §§ 270, 271. Parol disclaimer sufficient, but a writing more certain. 
 
 § 272. Where a legacy or other benefit is given to the trustee or executor. 
 
 § 273. Effect of a disclaimer. 
 
 Removal or resignation. 
 
 § 274. How a trustee may be removed or resign. 
 
 § 275. For what causes may be removed. 
 
 § 276. For what causes may be allowed to resign. 
 
 § 276 a. A trust shall not fail for lack of a trustee. See § 731. 
 §§ 277, 278. How the court proceeds in substituting trustees. 
 
 § 279. Bankruptcy of trustee. 
 
 § 280. The resignation of trustees. 
 
 § 281. Where the same person is executor and trustee. 
 
 § 282. The proceedings to remove and substitute trustees. 
 
 § 283. Where all parties consent. 
 
 § 284. Of the vesting of the property in the new trustees. 
 
 § 285. Duty of trustee where all consent to his discharge. 
 
 § 286. Of the number of trustees. 
 
 Appointment of trustees under a power. 
 
 § 287. Trustees cannot appoint their successors or new trustees unless 
 
 power is given in the instrument of trust. 
 
 § 288. Caution necessary in new appointments. 
 
 § 289. Powers of appointment frequently matters of personal confidence. 
 
 § 290. Occasions or events upon which new appointments may be made. 
 
 § 291. An appointment may be made to fill a vacancy occurring before the 
 
 death of the testator. 
 
 § 292. Unfitness and incapacity. 
 
 § 293. Power cannot be exercised if the trust is already in suit in court. 
 
 388
 
 CHAP. IX.] ACCEPTANCE OF THE TRUST. [§ 259. 
 
 § 294. By whom the power may bo exercised. 
 
 § 2'J5. The jjower must \>c strictly followed. 
 
 § 2'J6. Who may bo a|jj)oiiiteil to e-vercise tho power. 
 
 § 297. Who may be appoiuted uuder a power. 
 
 § 259. When a trust is created by implication, result, or 
 construction of law from acts of parties, they will be held by 
 the law to the j)erfurniance of the trust whether they are 
 willing or unwilling to accept the situation; that is, when a 
 trust is raised by law and thrust upon the conscience of a 
 party, as the result or construction to l;c put upon his acts, 
 in order to do complete justice, the acceptance or refusal of 
 the party to be charged with the trust cannot alter his legal 
 or equitable liability to act as a trustee, and to do all that 
 is required of him to execute the trust. Subject to this 
 qualification, no one is compellable to undertake a trust. ^ If 
 a conveyance is made l)y a i)rivate individual or corporation 
 to public officers and their successors in oflice, the successors 
 are not bound, unless they accept the trust. ^ In voluntary 
 or express trusts, no title vests in the proposed trustee, hy 
 whatever instrument it is attempted to be transferred, unless 
 he expressly or by implication accepts the office, or in some 
 way assumes its duties and liabilities.^ And though a person 
 may have promised or agreed beforehand to accept a trust, 
 and his name is introduced into the will, conveyance, or set- 
 tlement, yet he may decline to act, and it is proper for him 
 to do so if he finds that his duties arc different from what he 
 conceived them to be when he entered into the agreement; 
 or if for any reason he cannot attend to the proper discharge 
 
 1 Lowry v. Fulton, 9 Sim. 123; Robinson v. Pitt, 3 P. Wms. 251; 
 Moyle V. Moyle, 2 Russ. & M. 715. And he may renounce the trust, 
 though such renunciation may deprive a beneficiary of all means of 
 obtaining a benefit intended for him by a testator. Beekman v. Bonsor, 
 23 N. Y. 298 ; Kennedy r. Winn, 80 Ala. IGG. 
 
 - Delaplane v. Lewis, 19 Wis. 476. 
 
 ' Maccubbin v. Cromwell, 7 (iill & J. 157 ; Bethune v. Dougherty, 21 
 Ga. 257; King r. Donnelly, 5 Paige, 40 ; Trask v. Donaghue. 1 Aik. 370 ; 
 Burritt v. Silliman, 13 N. Y. 93 ; De Peyster r. Clendining, 8 Paige, 295; 
 Bulkley v. De Peyster, 26 Wend. 21 ; Judson v. Gibbons, 5 Wend. 224 ; 
 Cooper V. IVIcClun, 10 111. 435 ; Matter of Robiusou, 37 X. Y. 201 ; Arm- 
 strong V. Morrill, 14 Wall. 138. 
 
 389
 
 § 260.] ACCEPTANCE OF THE TRUST. [CHAP. IX. 
 
 of the office.^ Such refusal docs not invalidate the deed or 
 will : it only relieves the trustees, and enables the court to 
 appoint others. 2 The refusal to act should be affirmatively 
 shown, either by an express disclaimer, or by such a tacit 
 refusal to act as amounts to an express rejection ;2 for every 
 o-if t by will or deed is supposed, 'prima facie, to be beneficial 
 to the donee, and therefore the law will presume that every 
 gift, whether in trust or not, is accepted until the contrary 
 is proved.* Especially will this presumption prevail after a 
 long lapse of time, as twenty years,^ or thirty-four years,^ if 
 the trustee has notice, and has not disclaimed, though he 
 may have done nothing in the execution of the trust. And 
 even where a deed was only four years old, and the trustees 
 knew of their appointment, and did not object, Lord St. 
 Leonards held that they could not be allowed to say that 
 they did not assent to the conveyance.'' 
 
 § 2G0. If the trust is created by deed, the most obvious, 
 natural, and effectual mode of signifying an acceptance is by 
 signing the deed;^ but such execution of the deed by the 
 trustee is not necessary.^ Where trusts are by will vested 
 
 1 Doyle V. Blake, 2 Sch. & Lef. 239 ; Evans v. John, 4 Beav. 35 ; Smith 
 V. Knowles, 2 Grant Cas. 413 ; Crook v. Ingoldsby, 2 Ir. Eq. 375. 
 
 2 Brownell v. Downs, 11 How. 62; Nicoll v. Miller, 37 111. 387; Nicoll 
 V. Ogden, 29 111. 323 ; Elstner v. Fife, 32 Ohio St. 358 ; Thatcher v. St. 
 Andrews Church, 37 Mich. 264 ; Johnson v. Roland, 58 Tenn. 203. De- 
 clining to act as executor is not a renunciation of the trust over a fund 
 bequeathed in the will. Garner v. Dowling, 11 Heisk. (Tenn.) 48; "Wil- 
 liams V. Gushing, 34 Maine, 370 ; Taintor v. Clark, 13 Met. 224. 
 
 8 Read v. Robinson, 6 Watts & S. 331. 
 
 * Ibid. ; Townson v. Tickell, 3 B. & Aid. 30 ; Thompson v. Leach, 
 Ventr. 198 ; Wilt v. Franklin, 1 Binn. 502 ; Wise v. Wise, 2 Jon. & La. 
 412; Eyrick v. Hetrick, 13 Penn. St. 494; 4 Kent, 500; 4 Cru. Dig. 404- 
 406; Goss v. Singleton, 2 Head, 67; Penny v. Davis, 3 B. Mon. 313; 
 Furmau v. Fisher, 4 Cold. 626. 
 
 6 In re Uniacke, 1 Jon. & La. 1 ; Eyrick v. Hetrick, 13 Penn. St. 493. 
 
 * In re Needham, 1 Jon. & La. 34. 
 
 ' Wise V. Wise, 2 Jon. & La. 403-412 ; Penny v. Davis, 3 B. Mon. 314; 
 Lewis V. Baird, 3 McLean, 65 ; Read v. Robinson, 6 Watts & S. 338. 
 
 8 Patterson v. Johnson, 113 111. 559, a good case on acceptance. 
 
 9 Flint V. Clinton Co., 12 N. H. 432; Cook o. Fryer, 1 Hare, 498; 
 
 390
 
 CHAP. IX.] ACCEPTANCE OF THE TRUST. [§ 2G0. 
 
 in the executors as such, accepting and qualifying as exec- 
 utor accepts the trusts.^ Acceptance may be presumed by 
 acts of the trustee at or subsequi-nt to the graut.'''(a) If the 
 trustee acts under the deed in tlie performance of the trust, 
 he will bo held to have accepted, though lie has not exe- 
 cuted, the deed, and ho may be liable for a breach of the 
 trust ;' but if the deed contains special covenants, the trustee 
 cannot be sued upon them, if he has not executed it, though 
 he may have accepted the deed.^ Nor will the execution of 
 the deed amount to a covenant to execute the trust, if it does 
 not contain words that can be construed into such a covenant 
 at law.^ But the word " covenant " or " agree " is not neces- 
 
 Montfort r. Cadogan, 17 Ves. 488; 19 Ves. 0o8 ; Small v. Ayleswood, 
 9 B. & Cr. 300 ; Leffler v. Armstrong, 4 Iowa, 482 ; Buckridge v. Glas.se, 
 1 Cr. & Ph. 131 ; Bixler r. Taylor, 3 B. Mou. 3G2 ; Field r. Arrowsmith, 
 3 Humph. 442 ; Smith v. Kuowles, 2 Grant, Ca. 413 ; lloberts r. Moseley, 
 51 Mo. 284. 
 
 1 Earle v. Earle, 93 X. Y. 104. 
 
 2 Harvey r. Gardner, 41 Ohio St. 642. 
 
 8 Kedenour v. Wherritt, 30 Ind. 48.3. See also cases in note 9, p. 346. 
 * Richardson v. Jenkins, 1 Drew. 477 ; Vincent v. Godson, 1 Sm. & Gif. 
 384. 
 
 6 Wyuch V. Grant, 2 Drew. 312 ; Courtney v. Taylor, 6 M. & Gr. 851 ; 
 
 (a) Apart from statute, the pro- Trusts (10th ed.), 214; McBride v. 
 posed trustee need not sign or ex- McTntyre, 91 ^lich. 406. "When a 
 pressly assent to the trust deed, resulting trust arises from a pay- 
 Smith V. Davis, 90 Cal. 25 ; Garn- ment towards the purchase-money, 
 sey V. Gothard, id. 603 ; Roberts v. the trustee's covenants in a decla- 
 Moseley, 51 Mo. 282 ; Daly v. Bern- ration of trust made by him showing 
 stein, 6 N. Mex. 380 ; Holland v. such payment, are his covenants 
 Alcock, 108 N. Y. 312 ; "Wadd v. only, and do not, under the statute 
 Hazleton, 62 Hun, G02; Ewing v. of frauds, operate to limit or affect 
 Buckner, 76 Iowa, 467 ; 1 Ames on the beneficiaries' estates, without 
 Trusts (2d ed.), 229 ; supra, § 103, their signatures. Adams i: Carey, 
 n. (a). If he knows of his appoint- 53 N. J. Eq. 331. The grantee in a 
 ment, and does not disclaim, he is deed of trust, who accepts and takes 
 estopped to deny the effect of his possession, is estopi^Hl to deny the 
 receipt of the trust proi)erty, or ha grantor's title. Guilfoil r. Arthur, 
 will, after the lapse of time, be pre- 158 111. 600. As to what is a trust 
 sumed to have accepted the trust, deed, see O'Rourke r. Beard, 151 
 especially with respect to the effect Mass. 9 ; Dulaney r. Willis, 95 Va. 
 upon third persons. See Lewin on 606 ; More r. Calkins, 95 Cal. 435. 
 
 391
 
 § 260.] ACCEPTANCE OF THE TRUST. [ciIAP. IX. 
 
 sary for that purpose; the word "declare" will suffice.^ If 
 there is a hreach of the trust, but no execution of the deed 
 other than by an acceptance of it, a simple contract debt only 
 is created against the trustee or his estate,^ but a breach of 
 covenants under the hand and seal of the trustee creates a 
 specialty debt, which in some jurisdictions takes precedence 
 of simple contract debts. ^ This distinction is of no effect in 
 the United States, as, in every State, probably the real estate 
 of a deceased person is equally liable for his debts, however 
 contracted or evidenced. If the trustee executes the deed, he 
 should see to it that the recitals are all correct, otherwise he 
 may be held liable to make them good.^ Acceptance of the 
 trust estops the trustee from denying the title of the person 
 for whom he holds. ^ (a) 
 
 Newport v. Bryan, 5 Ir. Ch. 119 ; Adey v. Arnold, 2 De G., M. & G. 433; 
 Marryatt v. Marryatt, 6 Jur. (x. s.) 572 ; Holland v. Holland, L. R. 4 Ch. 
 449. 
 
 ^ Richardson v. Jenkins, 1 Drew. 477 ; Saltoun v. Hanston, 1 Bing. 
 N. C. 433 ; Cummins v. Cummins, 3 Jon.,& La. 64 ; 8 Ir. Ch. 723 ; Jen- 
 kins V. Robertson, Law R. 1 Eq. 123. 
 
 2 Jenkins v. Robertson, 1 Eq. R. 123; Lockhart v. Reilly, 1 De G. & 
 J. 464; Vernon v. Vawdry, 2 Atk. 119; Barn. 280; Cox v. Bateman, 
 2 Ves. 19 ; Kearnau v. Fitzsimon, 3 Ridg. P. C. 18. If the trustee ex- 
 ecute the deed, and it is a simple acceptance of the trust on his part, the 
 breach of the trust is a simple contract debt, for there is no breach of any 
 express covenant. Holland v. Holland, L. R. 4 Ch. 449. 
 
 s GifEord v. Manley, For. 109 ; ]\Iavor v. Davenport, 2 Sim. 227; Benson 
 V. Benson, 1 P. Wms. 131 ; Deg v. Deg, 2 P. Wms. 414; Turner v. War- 
 die, 7 Sim. 80; Bailey v. Ekins, 2 Dick. 632; Cummins v. Cummins, 3 
 Jon. & La. 64 ; Primrose v. Bromley, 1 Atk. 89 ; Wood v. Hardisty, 2 Coll. 
 542, commented upon in L. R. 1 Eq. 125. 
 
 ^ Gore V. Bowser, 3 Sm. & Gif. 6; Chaigneau v. Bryan, 1 Ir. Ch. 172; 
 8 Ir. Ch. 251 ; Story v. Gape, 2 Jur. (n. s.) 706 ; Bliss r. Bridgewater 
 (cited Lewin on Trusts, 166, 5th ed.). But in Fenwick v. Greenwell, 10 
 Beav. 418, the Master of the Rolls refused to allow the recital of a repre- 
 sentation to bind the trustees. 
 
 s Smith V. Sutton, Adm'r, 74 Ga. 528. 
 
 (a) A trustee, who is in default, been made good; this applies also 
 
 cannot claim, as against his cestui to his assignee, even though the 
 
 que trust, any beneficial interest in default was subsequent to the as- 
 
 the trust estate until bis default has signment ; and the rule applies not 
 
 392
 
 CHAP. IX.] ACCEI'TANCK OF THE TRUST. [§ 261. 
 
 § 2(51. Parol evidence of the conversations, acts, and ad- 
 missions of a party are admissildo to j)rove his acceptance of 
 a trust.' Thus, if a person, with notice of his appointment 
 to a trust, receives the income of the trust estate;"'^ or exe- 
 cutes a power of attorne}';^ or signs a joint draft, order, or 
 receipt, to enable some other person to act in administering 
 the estate or the trust;* or signs a receipt as trustee;^ or 
 gives notice to a tenant of the estate to pay rent to liim;'* 
 or brings an action on the footing of the trust;" or inter- 
 feres generally by ordering the trust property to be sold, or 
 by being i)resent at the sale, or by giving any directions im- 
 plying ownership, or by frequently making inquiries of the 
 acting trustee as to the affairs of the trust, ^ or by not object- 
 ing when the instrument of trust is read to him,^ — all these 
 acts may be shown by parol, as evidence tending to prove an 
 acceptance, and the evidence will be more or less conclusive 
 according to the circumstances of each case. The general 
 rule is, that every voluntary interference with the trust prop- 
 erty will stamp a person as an acting trustee, '^^ unless such 
 
 1 Urch V. Walker, 3 My. & Cr. 7u;i ; James r. Frearson, 1 N". C. C. 375; 
 1 Y. & C. Ch. 370; Doe r. llanis, IG M. & W. 517; Rodeuour r. Wher- 
 ritt, 30 lud. 485. 
 
 - Couyiigham v. Conyngham, 1 Ves. 522. 
 
 8 Hanison v. Graham, 1 P. Wins. 211, n. ; 1 Wms. Ex'rs, 151 ; Ilan- 
 bury V. Kirkland, 3 Sim. 2G5; Christian v. Yancey, 2 P. & 11. (Va.) 240. 
 
 * Broadhurst v. Balguy, 1 Y. & C. Ch. IG ; Sadler r. Ilobbs, 2 Bro. Ch. 
 114 ; Doyle v. Blake, 2 Sch. & Lef. 231. 
 
 6 Kennedy v. Winn, 80 Ala. 1G6. 
 
 ^ Montfort v. CadoL,'an, 17 Ve3. 4S7. 
 
 ' Ibid.; O'Neill v. Henderson, 15 Ark. 235; Pond v. Iline, 21 Conn. 
 519 ; Penny v. Davis, 3 B. IMon. 314. 
 
 8 James v. Frearson, 1 Y. & C. Ch. 375; Shepherd v. McEvers, 4 Johns. 
 Ch. 136; Crocker v. Lowenthal, 83 III. 579. 
 
 » James v. Frearson, mpra : Chidgey v. Harris, IG M. & W. 517 ; But- 
 ler ?■. Baker, 3 Co. 2G a; Hanson v. Worthiugton, 12 Md. 418; lloberts v. 
 Woseley, G4 Mo. 507. 
 
 10 White V. Barton, 18 Beav. 192; Harrison v. Graham, cited Churchill 
 
 only to shares taken by the tius- terests acquired by him in the trust 
 tee under the instrument creating estate. Doeriug r. Doeriug, 42 Ch. 
 the trust, but also to derivative in- D. 203. 
 
 393
 
 § 261 «.] ACCEPTANCE OF THE TRUST. [CHAP. IX. 
 
 interference can be plainly referred to some other ground of 
 action than to an acceptance of the trust, as by showing that 
 such a person acted, in interfering, as the mere agent of an 
 acting trustee.^ The mere fact that a person named as 
 trustee in a deed takes the custody of the deed until another 
 trustee can be appointed is not an acceptance, because his 
 acts are plainly referable to another ground of action. ^ 
 While parol evidence is competent to show whether a sup- 
 posed trustee has or has not accepted the trust, it is not com- 
 petent, in behalf of the trustee, to prove by such evidence 
 the conversations or declarations of the settlor, in order to 
 show what property was subject to the trust. ^ A trustee 
 should take care that his acts in relation to the trust fund 
 are plainly referable to some certain ground of action ; for if 
 his acts are ambiguous, or it is doubtful whether he intended 
 to accept, or to act in some other capacity, the doubt will be 
 against him, and he will be construed to have accepted the 
 trust and all its responsibilities.* 
 
 § 261 a. Sometimes a bond is required by the instrument 
 creating the trust, and sometimes the grantor expressly de- 
 sires that the trustee shall not be required to give security. 
 In the case of executors, statute law provides for the giving 
 
 V. Hobson, 1 p. Wms. 241 n. (y) ; Cummins v. Cummins, 8 Ir. Eq. 723 
 Doyle V. Blake, 2 Sch. & Lef. 231 ; Malzy v. Edge, 2 Jur. (n. s.) 80 
 Lewis V. Baird, 3 McLean, 56 ; Maccubbin v. Cromwell, 7 Gill & J. 157 
 Penny v. Davis, 3 B. Men. 313. 
 
 1 Stacy V. Elph, 1 M. & K. 195 ; Lowry v. Fulton, 9 Sim. 115 ; Dove 
 V. Everard, 1 R. & M. 281 ; Taml. 376 ; Orr v. Newton, 2 Cox, 274 ; Bal- 
 chen r. Scott, 2 Ves. Jr. 678 ; Carter v. Carter, 10 B. Mon. 327 ; Judson 
 V. Gibbons, 5 Wend. 224. And the onus is on the alleged trustee. Ken- 
 nedy V. Winn, 80 Ala. 165. 
 
 2 Evans v. John, 4 Beav. 35 ; Smith v. Knowles, 2 Grant Cas. 
 413. 
 
 8 Doyle V. Blake, 2 Sch. & Lef. 240. 
 
 ^ Read v. Truelove, Amb. 417; Chaplin r. Givens, 1 Rice, Eq. 154; 
 Doe V. Harris, 16 M. & W. 517; Lowry v. Fulton, 9 Sim. 115 ; Conyng- 
 ham V. Conyngham, 1 Ves. 522 ; Montgomery v. Johnson, 11 Ir. Eq. 
 476. 
 
 394
 
 CHAP. IX.] ACCEPTANCE OF THE TUUST. [§ 202. 
 
 of a bond,^ and in relation to express trustees in general, 
 similar provisions may exist.^ 
 
 § 262. At common law an executor was said to derive his 
 authority from the will, and not from the appointment of the 
 probate court. ^ Therefore most of the acts of persons nomi- 
 nated to execute wills were valid before the probate of the 
 will.* Thus persons appointed by a testator in his will to 
 administer his estate, and execute the trusts created by such 
 will, might assume the trusts and ])rocced in the execution 
 of them, without presenting the will for proljate;^ and the 
 same evidence might be used to show that a trustee under a 
 will had accepted such trust, and had assumed its responsi- 
 bilities, as was admissible to show that a trustee under a 
 deed had accepted the office.^ But in nearly all the United 
 States there are statutes upon the subject which require that 
 wills shall be presented for probate, and that executors and 
 trustees under them shall give bonds for the faithful dis- 
 charge of their duties. Where such statutes are in force, 
 executors or trustees have no power or authority to act with- 
 out appointment by the probate court, and a refusal or 
 neglect to qualify by giving bonds will be considered a 
 refusal and disclaimer of the trust. '^ In the absence of such 
 
 1 See § 2G2. 
 
 2 Bates V. State, 75 Ind. 463; Hinds v. Hinds, 85 Ind. 312; Tucker v. 
 State, 72 Ind. 242 ; Thiebaud v. Dufour, 54 id. 620. 
 
 * Toller's Ex'rs, 95. 
 
 * Easton v. Carter, 5 Exch. 8 ; Venables v. East Ind. Co.,2 Exch. 633; 
 ToUer's Ex'rs, 46, 47 ; Mitchell v. Rice, 6 J. J. Marsh. 625. 
 
 ^ Ibid. ; Vanhorne r. Fonda, 5 Johns. Ch. 403. 
 
 * Conyngham v. Conynghaiu, 1 Ves. 522 ; Doyle ?•. Blake, 2 Sch. & 
 Lef. 231 ; James v. Frearson, 1 Y. & C. Ch. 370 ; Maccubbin r. Crom- 
 well, 7 Gill & J. 157; Godwin ". Yonge, 22 Ala. 553 ; Latimer r. Hanson, 
 1 Bland, 51; Flint v. Clinton Co., 12 N. II. 432; Chaplin v. Givuns, 1 
 Rice, Eq. 133 ; Baldwin v. Porter, 12 Conn. 473. 
 
 ' Luscomb i\ Ballard, 5 Gray, 403 ; Monroe r. James, 4 Munf. 195 ; 
 Trask v. Donahue, 1 Aik. (Vt.) 373; Carter i-. Carter, 10 B. Mon. 327; 
 Mitchell ('. Rice, 6 J. J. Marsh. 625 ; Robertson r. Gaines, 2 Humph. 
 381 ; Johnson's App., 9 Barr, 416; Simpson's App., id. ; Wood r. Sparks, 
 
 1 Dev. & Bat. 396 ; Miller v. Meetch, 8 Barr, 417; Roseboom v. Moshier, 
 
 2 Denio, 61; Williams v. Cushlng, 34 Maine, 370; Deering v. Adams, 37 
 
 395
 
 § 262.] ACCErXANCE OF THE TRUST. [CHAP. IX. 
 
 statutes, if ii person named as executor procures probate of 
 the will, lie will thereby constitute himself executor with all 
 the liabilities attached to the office,^ and if the same person 
 is appointed executor and trustee, probate of the will by him 
 will be an acceptance of the trusts.''^ (a) But the same person 
 may be appointed both executor and trustee under a will in 
 such a manner that he may accept one of the offices and de- 
 cline the other. As if a man is appointed executor, and 
 as executor is to act as a trustee, in such case the probate 
 of the will, and qualification as executor, will be an accept- 
 ance of the trust. 2 But if from the will it appears that the 
 testator intended to give his trustees a distinct and inde- 
 pendent character, probate of the will by the executors will 
 not make them trustees, unless they also accept the trust 
 
 id. 265 ; Knight v. Loomis, 30 id. 208 ; Groton v. Ruggles, 17 id. 137 ; 
 Hanson v. Worthington, 12 Md. 418; Sawyer's App., IG N. H. 459 ; Gas- 
 kill V. Gaskill, 7 R. I. 478; Mahony v. Hunler, 30 Ind. 24G; infra, 
 § 264, n. In many of the States there are statutes that authorize the 
 judges of probate to appoint executors or trustees under wills, without 
 requiring bonds with sureties, if the testator request it in his will, or if 
 all the parties in interest, being sui Juris, request it in writing. In such 
 cases the court proceeds with great caution, and it may at any time re- 
 quire security if the circumstances seem to require it. Gibbs v. Gui- 
 gnard, 1 S. C. 359. The omission to give the bond required does not 
 divest the trustee of the legal title. Gardner v. Brown, 21 Wall. 36. 
 
 1 Booth V. Booth, 1 Beav. 125 ; Ward v. Butler, 2 Moll. 533 ; Styles v. 
 Guy, 1 Mac. & G. 431 ; Scully v. Delaney, 2 Ir. Eq. 105 ; and see Balchen 
 r. Scott, 2 Ves. Jr. 678; Peeble's App., 15 Serg. & R. 39; Worth v. Mc- 
 Aden, 1 Dev. & Bat. Eq. 209 ; Cummins v. Cummins, 3 Jon. & La. 64 ; 
 Hanson v. Worthington, 12 Md. 418. 
 
 2 Mucklow V. Fuller, Jac. 198 ; Williams v. Nixon, 2 Beav. 472 ; Clarke 
 V. Parker, 19 Ves. 1; Cummins v. Cummins, 3 Jon. & La. 64; Hanson v. 
 Worthington, 12 Md. 418; Baldwin v. Porter, 12 Conn. 473. 
 
 s De Peyster v. Clendining, 8 Paige, 295; Hanson v. Worthington, 12 
 Md. 418; Williams v. Conrad, 30 Barb. 524; Mucklow v. Fuller, Jac. 
 198 ; Booth v. Booth, 1 Beav. 125 ; Williams v. Nixon, 2 Beav. 472 ; 
 W^ard V. Butler, 2 Moll. 533 ; Wilson's Estate, 2 Penn. St. 325. 
 
 (a) In the case of money given trust, and pay the interest only to 
 by will to one person for life, with the person entitled for life. Bul- 
 remainder over, if no trustee is lard r. Chandler, 149 Mass. 532, 
 specially named or appointed, the 537 ; White v. Mass. Inst, of Tech- 
 executor is to hold the money in nology, 171 Mass. 84. 
 396
 
 CHAP. IX.] ACCEPTANCE OF THE TRUST. [§ 262. 
 
 and qualify themselves according to law.^ If the executor is 
 not expressly appointed trustee, the court may determine 
 from the whole will whether he is to act as trustee.'^ If the 
 trust is given to one named, and the same person is after- 
 wards appointed executor, the trust is not annexed to the 
 office of executor. 3 The conditions of bonds of administra- 
 tors are to administer the estate according to law. Bonds 
 of executors are conditioned to administer an estate accord- 
 ing to the will, though a condition to administer according 
 to law is the same thing, because by law they are to admin- 
 ister according to the will. If, therefore, by the terms of 
 the will the executor, as executor, is to keep the estate, or 
 any portion of it, in his hands, and is to deal with it as a 
 trustee, his bond will be held as security for the faithful per- 
 formance of his duties, though such duties are much larger 
 and different from those of an ordinary executor.^ Where 
 the income of property is given to one for life, and at his 
 death the property is given over to another, and no trustee 
 is named in the will, the executor is the trustee to hold the 
 property during the life of the legatee for life.^ If, how- 
 ever, the will contemplates that the executor, as such, is to 
 perform only the ordinary duties of an executor, and that 
 when the estate is settled by him, another duty is to arise to 
 
 1 De Peyster v. Clendining, 8 Paige, 295 ; Worth v. McAden, 1 Dev. 
 &Bat. 209; Judson t;. Gibbons, 5 Wend. 22G; Williams v. Gushing, 31 
 Maine, 370; Bearing v. Adams, 37 id. 205 ; Knight v. Loomis, 30 id. 204; 
 Hanson v. Worthington, 12 I\Id. 418; Wheatley v. Badger, 7 Peun. St. 
 459. But see Anderson v. Earle. 9 S. G. 4G0. 
 
 2 Sawyer's App., 16 N. H. 459 ; Garson v. Carson, 6 Allen, 397; How- 
 ard V. Amer. Peace Soc., 49 Maine, 288, 306. An executor must admin- 
 ister the trust created by will where there is no designation of the execu- 
 tor or any other person as trustee. Pettingill v. Pettingill, 60 Maine, 412; 
 Richardson v. Knight, 69 id. 385. 
 
 8 James's App., 3 Grant, 169. 
 
 * Saunderson v. Stearns, 6 Mass. 37; Prescott i-. Pitts, 9 Mass. 376; 
 Hall V. Gushing, 9 Pick. 395; Dorr v. Wainwright, 13 Pick. 328; Towne 
 V. Ammidown, 20 Pick. 325; Perkins v. Moore, 16 Ala. 9 ; State v. Nicols, 
 10 Gill & J. 27; Wilson's Estate, 2 Peuu. St. 325; Sheet's Est., 52 id. 
 257 ; Lansing i'. Lansing, 45 Barb. 182. 
 
 6 Wheeler v. Perry, 18 N. H. 307. 
 
 397
 
 § 263.] ACCEPTANCE OF THE TRUST. [CIIAP. IX. 
 
 be performed, cither by him or by another, then the bond of 
 the executor is not security for those further duties ; but the 
 person who is to perform them must accept the office, and 
 give a bond for their performance.^ It may be further 
 observed, that an executor will be considered as holding a 
 legacy in his capacity as executor, unless the will clearly 
 shows that the testator intended that he should hold it in the 
 character of a trustee. ^ But after the lapse of twenty years 
 the law will presume that an estate was fully administered, 
 and that thereafter the executor held the funds as trustee.^ 
 So, if it appears that the executor made an actual final settle- 
 ment of the estate as executor, he will be presumed to hold 
 subsequently as a trustee.^ As a general rule, executors' 
 and trustees' bonds can be sued only by leave of court, upon 
 good cause shown. ^ 
 
 § 2G3. If the same person is both executor and trustee, it 
 is sometimes difficult to determine whether, in a particular 
 case, he is acting as executor or trustee. In England, the 
 rule seems to be that if the executor assents to the legacy, 
 if it is specific, or if part of the assets are clearly set apart 
 and appropriated by him to answer a particular legacy, he 
 will be considered to hold the fund as trustee for that trust, 
 and not as executor.^ In jurisdictions where executors and 
 trustees are required to qualify and give bonds, it has been 
 held that an executor, who is also a trustee under the will, 
 cannot be considered as holding any part of the assets as 
 trustee, until he has settled his account at the probate office 
 
 1 Knight V. Loomis, 30 Maine, 204; Mastin v. Barnard, 33 Ga. 520; 
 Perkins v. Lewis, 41 Ala. 641; Parsons v. Lyman, 5 Blatch. C. C. 170; 
 Spark's Est., 1 Tuck. Sur. 443. 
 
 2 State V. Nicols, 10 Gill & J. 27. 
 * Jennings v. Davis, 5 Dana, 127. 
 4 State V. Hearst, 12 Miss. 365. 
 
 6 Floyd V. Gilliam, 6 Jones, £q. 183. 
 
 « Dix V. Burford, 19 Beav. 409; Brougham v. Poulett, id. 119; Ex 
 parte Dover, 5 Sim. 500 ; Phillipo v. Munnings, 2 M. & Cr. 309 ; Byrchall 
 V. Bradford, 6 Madd. 13 ; Ex parte Wilkinson, 3 Mont. & Ayr. 145 ; Will- 
 mot V. Jenkins, 1 Beav. 401. 
 398
 
 CHAP. IX.] ACCEPTANCE OF THE TKUST. [§ 2G3. 
 
 as executor, and has been credited with the amount as exec- 
 utor with whicli lie is afterwards to be charged as trustee.^ 
 In other cases it has been held that the change of property 
 from the executor to the trustee, where tliey are the same 
 persons, may be shown by some authoritative and notorious 
 act ;'^ but that the mere determination of the executor, in his 
 own mind, to hold certain particular property thereafter in 
 trust for a particular legatee under the will, is not such a 
 setting apart as to discharge him from his liability as exec- 
 utor, and to charge him as trustee. ^ (a) Where the executor 
 may thus act in a double capacity, he must account in his 
 capacity as executor, and the sureties on his bond as executor 
 
 1 Hall V. Gushing, 9 Pick. 395; Trior v. Talbot, 10 Cush. 1 ; Perkins 
 V. Moore, IG Ala. 9 ; Elliott v. Sparrell, 114 Mass. 404 ; Muse v. Sawyer, 
 T. K. 204. 
 
 2 Newcomb 7'. Williams, 9 Met. 534; Conkey v. Dickinson, 13 Met, 
 53; Hubbard {•. Lloyd, 6 Cush. 522; De Peyster v. Clendining, 8 Paige, 
 310; Byron v. Mood, 2 McMull. 2S8; Hitchcock v. Bank of U. S., 7 Ala. 
 386; Perkins v. Moore, 16 Ala. 9; State v. Brown, 08 N. C. 554 ; Tyler 
 V. Deblois, 4 Mason, 131. A defaulting trustee who becomes entitled to 
 a portion of the trust, being one of the next of kin to a deceased cestui que 
 trust, will be held to have paid himself, and the share standing to his 
 account on distribution will be paid to the other cestui que trust, to the 
 extent of the defalcation. Jacobs v. Ryland, L. R. 15 Eq. 341. See 
 Ruffin V. Harrison, 81 N. C. 208, in which the court, from an examina- 
 tion of the cases cited, deduced the following principles: 1. Where the 
 simple relation of debtor and creditor exists, and the same person, repre- 
 senting both, is to pay and receive, the possession of assets which ought 
 to be applied to the debts is in law an application. 2. Where one is 
 clothed with a double fiduciary capacity, and the balance remaining upon 
 a full execution of one trust belongs to the other, if the amount has been 
 ascertained definitely and authoritatively, and the fund is then in the 
 trustee's hands, the law makes the transfer. 3. If the first trust is not 
 closed, although the trustee may have rendered an account, which has not 
 been passed upon by a competent tribunal, the fund remains unchanged, 
 and is held as before. 4. The trustee may, by an unequivocal act indi- 
 cating the intent, elect to hold the fund in possession in another capacity, 
 and it will be thereby transferred. 
 
 8 Miller r. Congdon, 14 Gray, 114. The question, in this case, was 
 whether the estate or the legatee should suffer a certain loss ; but it was 
 not a question whether the executor should bear the loss in person. 
 
 (a) See In re Smith, 42 Ch. D. 302. 
 
 399
 
 § 264.] ACCEPTANCE OF THE TRUST. [CHAP. IX. 
 
 will 1)C liable for the faithful discharge of his duties as such, 
 until he has transferred his account to himself as trustee, and 
 given a bond as trustee.^ But, at the same time, it is held 
 that if the executor, acting as trustee under such <a will, 
 acts with fidelity and due diligence, he and his sureties will 
 not be responsible should any loss happen either to the 
 principal or interest of the trust fund; that is, that his lia- 
 bility in such a case is rather that of a trustee than that of 
 an executor; 2 and if he has acted in good faith in the invest- 
 ment of the legacy, any loss that may occur without his fault 
 will fall upon the legatee or cestui que trust, and not upon 
 him or the estate.^ Where a decree in chancery created a 
 separate estate for a married woman, and the court appointed 
 a trustee to receive it, and ordered him to give bond for the 
 faithful administration of the trust, the property vested in 
 him upon his giving bond, and continued during his life; 
 and, at his death, it did not vest in the cestui que trust, but 
 remained subject to the orders of the court.* 
 
 § 264. The executor of an executor, by accepting the office 
 from his immediate testator, becomes the executor and trus- 
 tee of his testator's testator. This is the rule in England, 
 where an executor comes into possession of all the assets in 
 the hands of his testator, in whatever capacity such testator 
 held them ; and, by accepting the duty of administering the 
 estate of his immediate testator, he accepts the duty of ad- 
 ministering all the trusts with which the assets in his testa- 
 tor's hands were charged.^ An executor must administer 
 
 1 Prior V. Talbot, 10 Cush. 1. A charge of the amount set apart in 
 executor's account settled in probate court is conclusive against the ex- 
 ecutor. Elliott V. Sparrell, 114 Mass. 404. 
 
 2 Hubbard v. Lloyd, 6 Cush. 522 ; Brown v. Kelsey, 2 Cush. 248 ; Dorr 
 r. Wainwright, 13 Pick. 332; Right v. Cathill, 5 East, 491 ; Denne u. 
 Judge, 11 East, 288. 
 
 8 Ibid. 
 
 4 Witter V. Duley, 36 Ala. 135. 
 
 6 In the Goods of Perry, 2 Curt. 655; Goods of Beer, 15 Jur. 160; 
 Shep. Touch, by Preston, 464 ; Wankford v. Wankford, Freem. 520; Hay- 
 400
 
 CHAP. IX.] EXECUTOR OF AN EXECUTOR. [§ 264. 
 
 an account for all tlio assets that come to his liands. If his 
 testator liehl goo<ls of a previous testator iinachMinistered, or 
 if liis testator held assets as a trustee, probate courts may 
 appoint an administrator witli the will annexed of the first 
 testator, or a new trustee; and it will be the duty of the ex- 
 ecutor of the last testator to settle an account with the ad- 
 ministrator with the will annexed, or with the new trustee, 
 and to pay over to them the assets that came to liis hands. 
 Until such proceedings are had, he will hold such assets 
 upon the same terms and trusts that his testator held them ; 
 and it will be his duty to administer them accordingly. The 
 proposition may be brielly stated thus: An executor, in 
 proving the will and in accepting the office from his imme- 
 diate testator, accepts not only all the trusts imposed l)y the 
 immediate will under which he acts, but also all the trusts 
 in respect to the assets which come to his hands with 
 which his immediate testator was charged; and he must 
 execute those trusts until he is relieved by a new appoint- 
 ment in the probate court, and a settlement and payment 
 over of the assets. He will not be allowed to accept the 
 trusts created by his immediate testator, and to repudiate 
 those with which his testator was himself charged. ^ And 
 so, a trustee cannot limit his acceptance and liability to any 
 particular portion of the trust. For if he acts at all, though 
 he disclaim a part he will be held to have accepted the entire 
 trust; 2 as if one is aj)pointed trustee of real and personal 
 estate, and he deals with the personal, he will be deemed to 
 
 tan V. Wolfe, Cro. eTac. 611; Palm. 15G ; Hutfc, 30; Schenck r. Schenck, 
 IG N. J. Eq. 171 ; IMaudlin v. Armisted, 18 Ala. 702 ; Nichols r. Camp- 
 bell, 10 Gratt. 5G1. See Knight i\ Looniis, 30 Me. 204, where it is said 
 that an administrator cle bonis nnn under the will of a trustee is not con- 
 stituted trustee by his appointment. 
 
 1 Worth V. McAden, 1 Dev. & Bat. 199 ; Mitchell v. Adams, 1 Ired. 
 (Law) 298; King v. Lawrence, 11 Wis. 238 ; Schenck v. Schenck, 1 Green, 
 Ch. 174. 
 
 2 Urch V. Walker, 3 M. & Cr. 702; Read i-. Truelove, Amb. 417; Doyle 
 V. Blake, 2 Sch. & Lef. 231; Van Horn v. Fonda, 5 Johns. Ch. 403; 
 Champlin v. Givens, 1 Rice, Eq. 154 ; Cummins v. Cummins, 3 Jon. & La. 
 64; Latimer v. Hanson, 1 Bland, 51; Flint v. Clinton Co., 12 N. H. 432. 
 
 VOL. 1—26 401
 
 § 265.] 
 
 DISCLAIMER OF THE TRUST. 
 
 [chap. IX. 
 
 have accepted the entire trust ;^ and so, if the same instru- 
 ment appoints him to two distinct trusts, he cannot divide 
 them. 2 {a) 
 
 § 265. If a person wrongfully interferes with the assets of 
 a deceased person, he may become an administrator or exec- 
 utor cle son tort. So, if a person by mistake or otherwise 
 assumes the character of trustee, and acts as such, when the 
 office does not belong to him, he thereby becomes a trustee 
 de son tort, and he may be called to account by the cestui que 
 trust for the assets received under color of the trust. ^ (h) 
 
 1 Ward V. Butler, 2 Moll. 533. 
 
 2 Urch V. Walker, 3 M. & Cr. 702; Judice v. Prevost, 18 La. An. 601. 
 
 3 Pearce v. Pearce, 22 Beav. 248 ; Life Ass'i> v. Siddall, 3 De G., F. & 
 J. 58 ; Hennessey i'. Bray, 33 Beav. 9G ; Rackham v. Siddall, 16 Sim. 297: 
 1 Mac. & G. 607. 
 
 (a) AVhen the same person is 
 nominated by a will as both execu- 
 tor and trustee, one of these trusts 
 may be accepted and the other dis- 
 claimed, if the testator has not 
 directed otherwise; and, in general, 
 the disclaimer of one of several 
 trusts, when independent and cre- 
 ated by the same instrument, does 
 not prevent acceptance of the other 
 trusts. Re Cunard's Trusts, 48 
 L. J. N. s. 192; Daggett v. White, 
 128 Mass. 398; Carruth v. Carruth, 
 148 Mass. 431. A trustee of both 
 English and foreign property can- 
 not make a partial disclaimer of the 
 trusts of the English property and 
 retain control of the foreign prop- 
 erty, /n re Lord and Fullerton's 
 Contract, [1896J 1 Ch. 228. 
 
 A disclaimer should be executed 
 without delay, but there is no abso- 
 lute rule that it must be executed 
 within any particular time. Jago v. 
 402 
 
 Jago, 68 L. T. 654. Yet non-action, 
 if long continued, or other acts, may 
 amount to a disclaimer by conduct. 
 Brandon v. Carter, 119 Mo. .572; 
 Mutual Life Ins. Co. v. Woods, 4 
 N. Y. S. 133. A person who by 
 conduct disclaims the office of trus- 
 tee under a will, disclaims the legal 
 estate thereby devised to him. In 
 re Birchall, 40 Ch. D. 436. Failure 
 to qualify or to give bond is treated 
 as a disclaimer, or else as cause for 
 removal, under the statutes of the 
 different States. Supra, § 262. See 
 Pvothschild V. Frank, 43 N. Y. S. 
 951 ; Foss v. Sowles, 62 Vt. 221 ; 
 Ex parte Kilgore, 120 Ind. 94 ; Sneer 
 V. Stutz, 102 Iowa, 402 ; Lamar »'. 
 Walton, 99 Ga. 356. 
 
 (b) Such a trustee must have 
 actually intermeddled with or had 
 control of the trust property. In re 
 Barney, [1892] 2 Ch. 265; supra, 
 § 245, n. (a).
 
 CHAP. IX.] DISCLAlMEli OK THK TRUST. [§ 2G7. 
 
 § 266. When trustees have accei)ted tlie olTice, they ought 
 to bear in mind tluit the law knows no such person as a 
 passive trustee, and that they cannot sleep upon their trust. 
 If such trustee remains quiet for any reason, and suffers 
 some other to do all the business, and yet executes formal 
 papers, as a power of attorney for the sale of stock, or a re- 
 lease or discharge of mortgages on payment, he is answerable 
 for the money as if he had conducted the business. And 
 further, the trustee should make himself acquainted with 
 the nature and circumstances of the {)roperty; for though 
 he is not responsible for anything that happens before his 
 acceptance of the trust, ^ yet if a loss occurs from any want of 
 attention, care, or diligence in him after his acceptance, he 
 may be held responsible for not taking such action as was 
 called for. 2 
 
 § 267. It has been seen that a person named as trustee, 
 either in a deed or will, may decline the office and disclaim 
 the estate.^ If he does so, he ought to execute an effectual 
 disclaimer without delay, for after a long interval of time it 
 will be presumed that he accepted the office* If a person 
 knows of his appointment, and lies by for a long time, it is 
 for the court to say whether, under all the circumstances, 
 such acquiescence was an assent to the trust. ^ Hut if a 
 trustee does no act in the office, there is no rule that requires 
 him to disclaim within any particular time. Thus, he may 
 disclaim after sixteen years if the delay can be so ex])lained 
 as to rebut the presumption of an acceptance.^ A disclaimer 
 
 1 Greaves v. Strahan, S De G., M. & G. 291 ; Prindle r. Holcombe, 45 
 Coun. Ill; Stevens v. Gaylord, 11 Mass. 269: Tps Mannf. Co. r. ."^itory, 
 
 5 Met. 310; LeJand v. Felton, 1 Allen, 531 ; Kinnev r. EnsiLMi. 18 Pick. 
 236. 
 
 2 England c. Downes, 6 Beav. 269, 270; Townley /•. Bond, 2 Conn. & 
 Laws. 405; James v. Frearson, 1 Y. & C Ch. 270; Taylor v. Millini:- 
 ton, 4 Jur. (x. s.) 204 ; Ex parte Greaves, 25 L. J. 53; 2 Jur. (x. s.) 253 : 
 Malzy r. Edjre, 2 Jur. (s. s.) 8. 
 
 8 Ante, § 2.50. * Ibid. 
 
 5 Doe r. Harris, 16 M. & W. 517; P.iddon v. Richardson, 7 De G.. M. 
 
 6 G. 563 ; James v. Frearson, 1 Y. & C. Ch. 370. 
 
 « Noble r. Meymott, 14 Beav. 471 ; Doe v. Harris, 16 M. & W. 517. 
 
 403
 
 § 268.] DISCLAIMEE OF THE TRUST. [CHAP. IX. 
 
 will take effect as of the time of the gift, and will prevent 
 the estate from vesting in the trustee disclaiming; therefore, 
 a disclaimer, whenever made, will relate back to the time of 
 the gift, if the party disclaiming has done no act which may 
 be construed into an acceptance. It is therefore immaterial 
 when the mere formal instrument of disclaimer is executed, 
 provided that nothing has intervened to vest the estate in 
 the trustee.^ 
 
 § 268. If a person has once accepted the office, either ex- 
 pressly or by implication, it is conclusive; and he cannot 
 afterwards, by disclaimer or renunciation, avoid its duties 
 and responsibilities.^ And the reason is, that, if the estate 
 has once vested in the trustee, it cannot be divested by a 
 mere disclaimer, or renunciation, nor can he convey the 
 estate against the consent of the cestui que trust without com- 
 mitting a breach of trust, unless the instrument creating the 
 trust gives him that power, or unless there is the decree of a 
 court to that effect. In such case the trustee may resign the 
 trust, and convey the estate in the manner pointed out in the 
 instrument creating the trust, if it speaks upon that subject; 
 or the trustee may decline the office, and convey the estate to 
 a new trustee, by the agreement of all the parties in interest, 
 if they are competent to act, and consent to the arrangement. 
 But if the parties do not consent, or if there are minor chil- 
 dren, married women, insane persons, or others incompetent 
 to act, a trustee, after he has once accepted the office, can 
 only be discharged by decree of a court having jurisdiction, 
 and upon proper proceedings had.^ 
 
 1 Stacy r. Elph, 1 M. & K. 195-199. 
 
 2 Conyngrhatn r. Conyncfliarn, 1 Ves. 522 ; T?ead v. Tnielove, Amh. 417; 
 Doyle V. Blake, 2 Sch. & Lef. 231 ; Rtaceyr. Elph, 1 M. & K. 195; Cruger 
 V. Halliday, 11 Paiee, 314; Shepherd i7. McEvers, 4 Johns. Ch. 136; Lati- 
 mer V. Hanson, 1 Bland, 51 ; Jones v. Stockett, 2 Bland, 409 ; Chaplin v. 
 Givens, 1 Bice, Eq. 133; Perkins v. McGavock, 3 Hay, 265; Drane v. 
 Gunter. 19 Ala. 731 ; Stronjr ?'• Willis. 3 Fla. 124; Thatcher v. Corder, 2 
 Keyes, 157; Armstrong: v. Merrill, 14 Wall. 138. 
 
 8 Conrtenav v. Conrtenav, Jo. Si Lat. 519 ; Foreshow ?'. Hisrc^inson. 20 
 Beav. 485 ; Greenwood v Wakeford, 1 Beav. 576 ; Coventry v. Coventry, 
 
 404
 
 CHAP. IX.] DISCLAIMER OF THE TRUST. [§ 270. 
 
 § 269. If a person acceptH a trust and dies, his heir cannot 
 renounce or dischiim it. The acceptance vested the estate 
 in tiic trustee, and tlie law at his death cast it upon the heir; 
 and the heir cannot divest or rejnidiate the estate hy a mere 
 discUiinier. * Cut if the heir is so named in the original in- 
 strument oi" trust that he takes the estate hy purchase, and 
 not Ijy inheritance or descent, or if he comes in under some 
 arrangement, as a special occupant, he may use his own 
 judgment in accepting or refusing the estate charged with 
 the trust.2 In most of the United States there are special 
 provisions hy statute regulating the resignation of trustees, 
 and the proceedings to be had upon their death, for the 
 preseiTation of the trust estates and the appointment of new 
 trustees. If a person is appointed trustee and has neither 
 accepted nor disclaimed during his life, it is an ojjcn ques- 
 tion whether his heir or personal representative can disclaim 
 after his death. The question was raised in Goodson v. 
 Ellison,^ but was left undecided. Mr. Hill thinks that a 
 disclaimer by the heir may be supported on principle.^ A 
 later case seems strongly to imply that the heir cannot dis- 
 claim.^ If an acting trustee dies, a person named cotrustee 
 with him may disclaim after his death, if the one disclaim- 
 ing has done no act amounting to an acceptance.^ 
 
 § 270. It was the clear opinion of Lord Coke, that if a 
 freehold vested in a person by feoffment, grant, or devise, it 
 could not be divested except by matter of record; and this 
 rule was established in order that a suitor might know, with 
 more certainty, who was the tenant to i\\Q prcecipe ;' but, as 
 
 1 Keen. 758; Cruder v. Ilalliday. H Paige. 314 ; Drane v. Guiitor, 10 Ala. 
 731 ; Shepherd v. INIcEvers, 4 Johns. Ch. 136 ; Diefendorf v. Spraker, 10 
 N. Y. 246; Re Bern.stoin, 3 Redf. (N. Y.) 20. 
 
 1 Co. Litt. 9 a; 3 Cm. Dig. 318 ; Humphrey v. :Morse, 2 Atk. 408. 
 
 2 Creaprh v. Blood, 3 Jon. & La. 170. 
 
 8 Condson v. Ellison, 3 Russ. .'583, 587. 
 4 Hill on Trustees, 222 (4th ed.). 
 6 King V. Phillips, 16 Jiir. 1080. 
 « Stacey v. Elph, 1 M. & K. 195. 
 
 f Butler & Baker's Case, 3 Co. 26 a, 27 a ; Anon. 4 Leon. 207; Shep. 
 
 •i05
 
 § 270.] DISCLAIMER OF THE TRUST. [CHAP. IX. 
 
 a gift is not perfect in law until it is accepted by the assent 
 of the donee, a disclaimer oi)cratcs as evidence that the 
 donee never assented, and consequently that the estate never 
 vested in him. Accordingly, it is now established that a 
 parol disclaimer is sufficient in all cases of a gift by deed or 
 will of both real and personal estate.^ And so a trust may 
 be repudiated without an express disclaimer, as by evidence 
 of the conduct of the party amounting to a refusal of the 
 office,^ or by any conduct inconsistent with an acceptance; 
 and a disclaimer may be presumed after a long neglect to 
 qualify or refusal to act.^ But the parol expressions of a 
 refusal of the trust, or parol evidence of conduct inconsistent 
 with an acceptance, must be unequivocal, and extend to a 
 renunciation of all interest in the property; for if such re- 
 fusal or conduct is coupled with a claim to the estate of 
 another character, it will not amount to a disclaimer.^ But 
 a person would act very imprudently who allowed so impor- 
 tant a question, as whether he was a trustee or not, to be a 
 matter of inference and construction from conversations or 
 conduct.^ 
 
 Touch. 285, 452; Bonifant v. Greenfield, Godb. 79 ; Siggers v. Evans, 
 5 El. & Bl. 380. 
 
 1 Townson v. Tickell, 3 B. & Al. 31 ; Stacey v. Elph, 1 M. & K. 198 
 Bonifant i'. Greenfield, Cro. Eliz. 80; Smith v. Smith, 6 B. & C. 112 
 Begbie v. Crook, 2 Bing. N. C. 70; 2 Scott, 128 ; Shep. Touch. 282, 452 
 Smith V. Wheeler, 1 Ventr. 128; Thompson v. Leach, 2 Ventr. 198; Rex 
 r. Wilson, 5 Man. & R. 140 ; Small v. Marwood, 4 id. 190 ; Foster i- Daw- 
 ber, 1 Dr. & Sm. 172; Re Ellison's Trust, 2 Jur. (n. s.) 62; Doe v. 
 Smith, 9 D. & R. 136 ; Bingham v. Clanniorris, 2 Moll. 253 ; Peppercorn 
 V. Wayman, 5 De G. & Sm. 230; Doe v. Harris, 16 M. & W. 517; Thomp- 
 son V. Meek, 7 Leigh, 419 ; Roseboom v. Moshier, 2 Denio, 61 ; Coram, r. 
 Mateer, 16 Serg. & R. 416; Nicolson v. Wordsworth, 2 Swanst. 369; 
 Adams v. Taunton, 5 Madd. 435 ; Miles v. Neave, 1 Cox, 159 ; Sherratt 
 V. Bentley, 1 Russ. & ^M. 655 ; Norway v. Norway, 2 M. & K. 278 ; Bray 
 V. West, 9 Sim. 429. 
 
 2 Stacey v. Elph, 1 M. &K. 195; Ayres v. Weed, 16 Conn. 291; Thorn- 
 ton V. Winston, 4 Leigh, 152; Wardwell v. McDouell, 31 lU. 364; Wil- 
 liams V. King, 43 Conn. 572 and cases cited. 
 
 8 Marr v. Peay, 2 Murph. 85. 
 
 4 Doe V. Smith, 6 B. & C. 112 ; Judson v. Gibbons, 5 Wend. 224. 
 6 Stacey v. Elph, 1 M. & K. 199 ; In re Tryou, 7 Beav. 496. 
 406
 
 CHAP. IX.] EFFECT OF A DISCLAIMER. [§ 272. 
 
 § 271. A disclaimer should be by deed or other writing 
 that admits of no ambiguity, and is certain evidence.^ And 
 the instrument should be a diaclaimer and not a conveyance ; 
 for if the trustee attempts to convey the estate, he may be 
 lield to have accepted the trust by the same act which was 
 intended to be a refusal of the office. ^ Although Lord Eldon 
 expressed the opinion, which seems to be the common-sense 
 view, that if the intention of the instrument is to disclaim, 
 it ought to receive that construction, although it is in form 
 a conveyance,^ yet this distinction has not been acted on. 
 A trust may also be disclaimed at the bar of the court and 
 by counsel, or by answer in chancery.* 
 
 § 272. If a person is nominated as trustee in a will, and 
 a benefit is also given to him independent of the office, he 
 can claim the testator's bounty, and yet disclaim the burden 
 of the trust,^ as an executor who is also a legatee may re- 
 nounce the executorship and yet claim the legacy; but if the 
 benefit is annexed to the office of trustee or executor, and is 
 not a gift to the individual, the person named as executor 
 or trustee cannot claim the benefit if he decline the office.^ 
 
 1 Stacey v. Elph, 1 M. & K. 199. 
 
 2 Crewe v. Dicken, 4 Ves. 97; Urch v. Walker, 3 M. & C. 702. 
 
 « Nicolson I'. Wordsworth, 2 Swanst. 372 ; Att. Gen. v. Doyley, 2 Eq. 
 Cas. Ab. 194; Hussey v. Markham, t. Finch, 258; Sharp r. Sharp, 2 B. 
 & A. 405; Richardson v. Hulbert, 1 Anst. 65. 
 
 * Ladbrook v. Bleaden, 16 Jur. 630; Foster v. Dawber, 1 Dr. & Sra. 
 172 ; Re Ellison's Trust, 2 Jur. (n. s.) 62 ; Hicksoa v. Fitzgerald, 1 Moll. 
 14 ; Norway v. Norway, 2 M. & K. 278 ; Sherratt v. Bentley, 1 R. & M. 
 655; Legg v. Mackrell, 1 Gif. 166; Bray v. West, 9 Sim. 429 ; Clemens v. 
 Clemens, 60 Barb. 366. 
 
 6 Pollexfen v. Moore, 3 Atk. 272; Andrew v. Trinity Hall, 9 Ves. 525; 
 Talbot V. Ra.hior, 3 M. & K. 524; Warren v. Rudall, 1 John. & H. 1 ; 
 Buel V. Yelverton, L. R. 13 Eq. 131; In re Isabella Denby, 3 De G., F. 
 & J. 350 ; Burgess v. Burgess, 1 Coll. 367. 
 
 « It is an established rule that bequests to individuals are considered, 
 prima facie, to be given to them in that character, — a presumption to be 
 repelled by the nature of the legacies or other circumstances arising in 
 the will. Roper on Leg. 780; Slaney v. Watney, L. R. 2 Eq. 418. It is 
 80, even if the persons are described in the legacy as " my good friends." 
 Read v. Devaynes, 3 Bro. Ch. 95. Or if the legacy is given in the will 
 
 407
 
 § 273.] EFFECT OF A DISCLAIMEK. [CHAP. IX. 
 
 And a trustee who has power, under certain circumstances, 
 to appoint a colleague and successor to execute the trusts, 
 may disclaim the trusts, except the power of nominating 
 other persons to be trustees in place of those originally 
 appointed, and an appointment by one who has never acted 
 except to make the nomination will be held valid. ^ (a) 
 
 § 273. If a person appointed trustee effectually disclaims, 
 it is as if he had never been named in the instrument. All 
 parties are placed in the same situation in respect to the 
 trust property as if his name had not been inserted in the 
 deed or will. 2 (6) Therefore, if one of the several trustees 
 disclaims, the entire estate will vest in the remaining trustee 
 or trustees;^ and if all the trustees or a sole trustee dis- 
 claim, the estate will vest in the heir subject to the trusts.* 
 
 among other legacies. Calvert v. Sebhon, 4 Beav. 222. Or if it is given 
 in a codicil naming the person as an individual and not naming his 
 office. Stackpole v. Howell, 13 Ves. 417 ; per Ch. J. Chapman in Kirk- 
 land V. Xarramore, 105 Mass. 31. And see Lewis v. Matthews, L. R. 8 
 Eq. 277; Abbott v. Massie, 3 Ves. 148; Harrison v. Rowley, 4 Ves. 212; 
 Cockerell v. Barber, 1 Sim. 23; 5Russ. 585; Barnes v. Kirkland, 8 Gray, 
 512; Rothmaler v. Myers, 4 Des. 255; Dix v. Read, 1 S. & S. 237; Pig- 
 gott V. Green, 6 Sim. 72; Billingslea v. Moore, 14 Ga. 370; Hall v. Cush- 
 ing, 9 Pick. 395; Newcomb i'. Williams, 9 Met. 525; Dixon v. Homer, id. 
 420; Brydges v. Wotton, 1 V. & B. 134; Morris v. Kent, 2 Ed. Ch. 175; 
 In re Hawken's Trust, 33 Beav. 570; Hanbury v. Spooner, 5 Beav. 630; 
 Griffiths V. Pruen, 11 Sim. 202 ; King v. Woodhull, 3 Edw. Ch. 79; Brown 
 V. Higgs, 4 Ves. 708; Thayer v. Wellington, 9 Allen, 283, 295; Cranberry 
 V. Granberry, 1 Wash. 246. 
 
 1 In re Hadley, 5 De G. & Sm. 67; 9 Eng. L. & Eq. 67. 
 
 2 Townson v. Tickell, 3 B. & Al. 31 ; Begbie i: Crook, 2 Bing. N. C. 
 70; Clemens v. Clemens, 60 Barb. 366; Hawkins v. Kemp, 3 East, 410; 
 Smith V. Wheeler, 1 Veutr. 128; Legettv. Hunter, 25 Barb. 81; 19 X. Y. 
 445; Goss v. Singleton, 2 Head, 67. 
 
 8 Ibid.; Bonifant v. Greenfield, Cro. Eliz. 80; Denne v. Judge, 11 
 East, 288; Ellis v. Boston, Hartford, & Erie R. Co., 107 Mass. 13. 
 
 * Stacey v. Elph, 1 M. & K. 195; Austin v. Martin, 29 Beav. 523; 
 
 (a) So a power may subsist after defeated. In re Cotton's Trustees, 
 
 the ultimate estates have vested ab- 19 Ch. D. 624, 628. 
 solutely, if the object and intention (6) Wheeler's Appeal, 70 Conn, 
 
 of its creation would otherwise be 511. 
 408
 
 CHAP. IX.] EFFECT OF A DISCLAIMER. [§ 273. 
 
 The settlor must be presumed to have known the effect of a 
 disclaimer by the trustees named by liim.^ It will be seen 
 from this, that a disclaimer operates retrospectively, and 
 vests the estate, ab initio, in those trustees only who accept 
 the trust, and, in the absence of an acceptance ijy any of tlic 
 trustees, in the heir,^ It follows, that all the powers and 
 authority vested in the trustees, as such, which are inciden- 
 tal or requisite to the execution of the trusts, are vested in 
 those trustees only who acce])t the oflice. They may, there- 
 fore, grant leases of the trust estate,^ and sell and convey 
 the same,* and give valid receipts for the purchase-money,^ 
 and the disclaiming trustee need not join in the deeds, nor 
 can his concurrence be required or enforced. But it must be 
 known whether one of several trustees disclaims or accepts 
 before it can be known whether the acts of the others are 
 valid or not.^ And it is immaterial that a disclaiming trus- 
 tee is expressly named as one of the persons by whom a 
 power connected with the trust is to be exercised:^ a power 
 given to the trustees, or the survivor of them, may be exer- 
 cised by an acting trustee, although the disclaiming trustee 
 is still alive. ^ But if the ])Ower is given to the person and 
 not to the office, a disclaimer by one will not vest the power 
 in the other trustees, so as to enable them to exercise it. 
 Powers that imply a personal confidence in the donee nmst 
 be exercised by the persons in whom the confidence is placed, 
 
 Goss V. Singleton, 2 Head, G7. lu New York it rests in the court by 
 statute. 
 
 1 Rrowell v. Reed, 1 Hare, 435. 
 
 2 Peppercorn v. Waynian, 5 De G. & Sm. 230; Stacey v. Elph, 1 M. & 
 K. 193; Dunning r. Ocean Nat. Bk., Lans. 29G. 
 
 8 Small v. Marwood, 9 B. & Cr. 307 ; Bayly i^. Cumininc^, 10 Ir. Eq. 
 410. 
 
 * Cooke V. Crawford, 13 Sim. 91; Adams v. Taunton, 5 Madd. 435; 
 Crewe v. Dicken, 4 Ves. 97; Nicolson c. Wordsworth, 2 Swanst. 378. 
 
 6 Hawkins v. Kemp, 3 East, 410; Smith i: Wheeler, 1 Ventr. 128; 2 
 Yen. & Pur. 850 ; Vandever's App., 8 Watts & S. 405. 
 
 6 Moir I'. Brown, 14 Barb. 39. 
 
 '' Crewe r. Dicken, 4 Ves. 100; Adams r. Taunton, 5 Madd. 43.5. 
 
 8 Sharp V. Sharp, 2 B. & Cr. 405 ; Peppercoru v. Wayman, 5 De G. & 
 Sm. 230. 
 
 409
 
 § 274] EFFECT OF A DISCLAIMER. [CHAP. IX. 
 
 and to whom the power is given. ^ Such powers, therefore, 
 will not vest by the disclaimer of one in his cotrustees, but 
 will be absolutely gonc.^ 
 
 § 274. If a trustee once accepts the office, he cannot by 
 his sole action be discharged from its duties. Having once 
 entered upon the management of the trust, he must continue 
 to perform its duties until he is discharged in one of three 
 ways: first, he may be removed and discharged, and a new 
 trustee substituted in his place, by proceedings before a court 
 having jurisdiction over the trust; second, he may be dis- 
 charged, and a new trustee appointed, by the agreement and 
 concurrence of all the parties interested in the trust ; (a) and, 
 third, he may be discharged, and a new trustee appointed, in 
 the manner pointed out in the instrument creating the trust, 
 if it makes any provisions upon that subject.^ (6) Mere aban- 
 donment of the trust will not vest the trust property in the 
 hands of his cotrustee, nor relieve a trustee from liability.* 
 If a trustee conveys away the trust estate to another, even 
 bis cotrustee, and appoints another to execute the trust, the 
 conveyance may pass the naked legal title, but it will have 
 no effect in relieving the original trustee from responsibility, 
 if the transaction is not sanctioned by the decree of the court, 
 or by the consent of all parties interested; and it will trans- 
 
 1 Cole V. Wade, 16 Ves. 44; Newman v. Warner, 1 Sim. (n. s.) 457; 
 Eaton V. Smith. 2 Beav. 236; Att. Gen. v. Doyley, 2 Eq. Cas. Ab. 194; 
 Walsh V. Gladstone, 14 Sim. 2; Wilson r. Pennock, 27 Pa. St. 238. 
 
 ^ Eaton V. Smith, 2 Beav. 236; Lancashire v. Lancashire, 2 Phill. 657; 
 Robson V. Flight, 33 Beav. 268. 
 
 3 Craig V. Craig, 3 Barb. Ch. 76; Drane v. Gunter, 19 Ala. 731; 
 Thatcher v. Candee, 3 Keyes (N. Y.), 157; Shepherd v. McEvers, 4 
 Johns. Ch. 186; Cruger tv Halliday. 11 Paige, 319; Ridgeley r. Johnson, 
 11 Barb. 527 ; Webster v. Vandeventer, 6 Gray, 428; Pearce r. Pearce, 22 
 Beav. 248; Sugden v. Crossland, 3 Sm. & Gif. 192; Jones v. Stockett, 2 
 Bland, 409 ; Perkins v. McGavock, 3 Hay. 265. 
 
 * Webster v. Vandeventer. 6 Gray, 428; Cruger v. Halliday, 11 Paige, 
 314 ; Thatcher i'. Candee, 3 Keyes, 157. 
 
 (a) This applies to a trustee for (b) Stearns v. Fraleigh, 39 Fla. 
 creditors. Jenkins v. Hammerschlag, 603,610. 
 06 N. Y. S. 534. 
 410
 
 CHAP. IX.] REMOVAL OF A TRUSTEE. [§ 275. 
 
 for no authority to the pcnson thus appointed, except to make 
 him a trustee de sou tort, if he attempts to interfere with the 
 trust estate.^ (a) 
 
 § 275. The cestui que trust, and all other persons, al- 
 though contingently interested in the remainder or reversion 
 of trust property,^ are entitled to have the custody and the 
 administration of it confided to proper persons, and to a 
 proper number of persons. Thus if a trustee originally ap- 
 pointed by will die in the testator's lifetime, a new trustee 
 may be appointed by the court to take the trust property; or 
 if the original number of trustees is reduced by death, the 
 cestui que trust may call upon the court to appoint new trus- 
 tees in place of those deceased. ^ So if a trustee disclaims, 
 or refuses to act after having once accepted,^ or becomes so 
 situated that he cannot effectually execute the office, as by 
 becoming a permanent resident abroad,^ or by abscond- 
 
 ^ Pearce v. Pearce, 22 Beav. 248 ; Sugden v. Crossland, 3 Sm. & Gif. 
 192; Braybiooke v. Inskip, 8 Ves. 417; Chalmers v. Bradley, 1 J. & W. 
 68; Williams o. Parry. 4 Russ. 272; Adams v. Payuter, 1 Coll. 532; 
 Cruger v. Ilalliday, 11 Paige, 314; Ardill v. Savage, I Jr. Eq. 79. 
 
 2 Fiiilay v. Howard, 2 Dr. & W. 490; Cooper v. Day, 1 Rich. Eq. 26; 
 In re Sheppard's Trusts, 4 De G., F. & J. 423 ; Rennie v. Ritchie, 12 CI. 
 & Fin. 204. 
 
 * Buchanan i'. Hamilton, 5 Ves. 722; Ilibbard v. Lamb, Anib. 309; 
 Webb V. Shaftesbury, 7 Ves. 487; Millard i^. Eyre, 2 Ves. Jr. 94; De 
 Peyster v. Clendiniiig, 8 Paige, 290; Dixon v. Homer, 12 Cu.sh. 41; Mass. 
 Gen. IIos. V. Amory, 12 Pick. 445; Greene v. Borland, 4 Met. 339. 
 
 * Wood V. Stane, S Price, 613; Moggeridge v. Grey, Nels. 42; Anon. 
 4 Tr. Eq. 700; Travell v. Dan vers, Finch, 380; Irvine v. Dunham, 111 
 U. S. 327. 
 
 6 O'Reilly v. Alderson, 8 Hare. 101 ; Re Ledwick, 6 Jr. Eq. 561 : Com., 
 &c. V. Archbold, 11 Ir. Eq. 187 ; Lill c. Neafie, 31 111. 101 ; In re Reynolds' 
 
 (a) See 1 Ames on Trusts (2d empower the beneficiaries to rp- 
 
 ed.), 316, 345. The action of tho move a trustee for adequate cause, 
 
 court in appointing a receiver and appoint a new one; but a court 
 
 may amount to the removal of a of equity may review the exercise of 
 
 trustee and the appointment of a such power. May v. May, 107 U. S. 
 
 new one. Fatjo r. Swasey, 111 310; 5 App. D. C. 552. 
 Cal. 628. A will may properly 
 
 411
 
 § 275.] FOR WHAT CAUSES MAY BE KEMOVED. [CHAP. IX. 
 
 ing;^ or ii a female trustee marry ;2 or if the trustees of a 
 church or chapel embrace opinions contrary to the founder's in- 
 tentions ; ^ or if the trustee becomes bankrupt,* or misconducts 
 himself,^ or deals with the trust fund for his own personal 
 profit and advancement,^ or commits a breach of trust,'' or 
 refuses to apply and pay over the income as directed,^ or if 
 
 Settlement, L. R. 7 Ch. 224 ; Maxwell v. Finnie, 6 Cold. 434 ; Curtis v. 
 Smith, 60 Barb. 9; Meunard v. Wilford, 1 Sm. & Gif. 426 ; Re Stewart, 
 8 W. R. 297; Re Harrison's Trusts, 22 L. J. Ch. 69; Dorsey v. Thomp- 
 son, 37 Md. 25; Ketchum v. Mobile & Ohio R. R., 2 Woods, 532. The 
 voluntary removal to, and becoming a resident of, a foreign country by 
 a trustee under a mortgage by a railroad company, incapacitates him and 
 vacates the office; and if, after such removal, he attempts to prosecute 
 suit in federal court the state court will enjoin him. Farmers' Loan 
 and Trust Co. v. Hughes, 11 Hun (N. Y.), 130. And where the cestui 
 que trust was prohibited by law from coming into the State, the court, on 
 the trustee's petition, discharged him, and appointed one living in the 
 same State with the cestui que trust. Ex parte Tunno, 1 Bailey, Ch. 395. 
 
 1 Millard v. Eyre, 2 Ves. Jr. 94; Gale's Feti. R. M. Charlt. 109; Re 
 Mais, 16 Jur. 60S. 
 
 2 Lake v. De Lambert, 4 Ves. 592 ; Re Kaye, L. R. 1 Ch. 387. By 
 chap. 409 of the Acts of 1869, a married woman in Massachusetts may be 
 appointed executrix, administratrix, guardian, or trustee, with the written 
 assent of her husband; and the marriage of a single woman who holds 
 such trusts shall not extinguish her authority, but her sureties on petition 
 may be discharged, and she may be required to give new ones. 
 
 8 Att. Gen. v. Pearson, 7 Sim. 309; Att. Gen. v. Shore, id. 317; Rose 
 V. Crockett, 14 La. An. 811. If individuals pay their own money, and take 
 a deed to themselves in trust for a parish, the courts will not appoint a 
 trustee to fill a vacancy; but if the parish paid the money, the court will 
 appoint. Draper v. Minor, 36 Mo. 200. 
 
 4 Baiubrigge v. Blair, 1 Beav. 495; In re Roche, 1 Con. & Laws. 306; 
 Com., &c. V. Archbold, 11 Ir. Eq. 187; Harris v. Harris, 29 Beav. 107; 
 Re Bridgman, 1 Dr. & Sm. 164. 
 
 5 Mayor of Coventry v. Att. Gen., 7 Bro. P. C. 235 : Buckeridge v. 
 Glasse, 1 Cr. & Ph. 122; Thompson v. Thompson, 2 B. Mon. 161; Deen 
 V. Cozzens, 7 Rob. 178. 
 
 6 Ex parte Phelps, 9 ]\Iod. 3.57; Clemens v. Caldwell, 7 B. Mon. 171 ; 
 Deen v. Cozzens, 7 Rob. 178 ; Kraft v. Lohman, 79 Ala. .323. 
 
 ' Thompson v. Thompson, 2 B. Mon. 161; Mayor of Coventry v. Att. 
 Gen., 7 Bro. P. C. 235 ; Att. Gen. r. Drummond. 1 Dr. & W. 353 ; 3 Dr. 
 & W. 162 ; Att. Gen. v. Shore, 7 Sim. 309, n. ; Ex parte Greenhouse, 1 
 Madd. 92. 
 
 8 Ex parte Potts, 1 Ash. 340. 
 412
 
 CHAP. IX.] FOR WHAT CAUSES MAY BE REMOVED. [§ 275. 
 
 he fails to invest as directed,' or permits a cotrustee to 
 commit u breach of trust," or if he loans the trust funds on 
 personal security, altliouuh the cestui que truat approves of 
 it,^ or refuses to obey an order of court,* or if trustees of a 
 mortgage for the security of bond-bolders of a railivjad or 
 other corporation refuse to foreclose or take other steps ;^ 
 or if a trustee make a grossly unreasonable claim uj)on the 
 trust property adverse to the cestui que trust ;^ or if a hus- 
 band, trustee for his wife, abandons and deserts her or treats 
 her with cruelty;'^ or if a municipal corporati<jn, liolding 
 property upon special trusts, is abolished;^ or if a trustee 
 becomes an habitual drunkard;^ or a lunatic ;^*^ or if a hos- 
 tile feeling exists between a discretionary trustee and the 
 cestui,^'^ or the trustee is antagonized by litigation, '^ or the 
 trustee acts adversely to the interests of the eestui,^^ or if the 
 trustee, appointed on an ex parte application of one of the 
 cestuis, is his paid servant,^* or if there is any other good 
 cause, ^'^ as if the trust fund is in danger of being lost for want 
 
 1 Clemens v. Caldwell, 7 B. IMon. 171 ; Deen v. Cozzens, 7 Rob. N. Y. 
 178 ; Cavender v. Cavender, 114 U. S. 464. 
 ^ E.r parte Reynolds, 5 Ves. 707. 
 8 Johnson v. Simpson, 9 Barr, 416. 
 4 Ehlen v. f:hlen, 03 :\rd. 207. 
 6 ]Matter of Merchants' Bank, 2 Barb. S. C. 446. 
 « Cooper V. Day, 1 Rich. Ch. 26. 
 
 ' Boaz V. Boaz, 36 Ala. 334; Fisk v. Stubbs, 30 Ala. 3.55; Smith v. 
 Oliver, 31 Ala. 130; Abernathy v. Aberiiatliy, 8 Fla. 213. But if the 
 wife deserts the husband without cause, thouixh the husband may be at 
 some fault, it is no cause for removing him as her trustee. Abernathy v. 
 Abernathy, 8 Fla. 213. 
 
 8 INIontpelier r. Ea.st Montpelier. 29 Vt. 12. 
 
 « Everett v. Prythergch, 12 Sim. 367 ; Bayles v. Staats, 1 Ilalst. Ch. 
 513. 
 
 10 Matter of Wadsworth, 2 Barb. Ch. 387: He Fowler, 2 Russ. 440; 
 Anon., 5 Sim. 322 ; In re Holland. 16 Ch. D. 672 ; In re Xash, 10 Ch. D. 
 503 ; In re Watson, 19 Ch. D. 384; In re IMartyn, 26 Ch. D. 745. 
 " Wilson V. Wilson, 1 15 Mass. 490, 494. 
 " David.son i: Moore, 14 S. C. 251. 
 " Dickerson r. Smith, 17 S. C. 2S9. 
 " Mayfield r. Donovan, 17 I\Io. App. 684. 
 
 " Piper's App., 20 Penn. St. 67 ; Fraukliu v. Hayes, 2 Swanst. 521. 
 
 413
 
 § 275.] FOR WHAT CAUSES MAY BE REMOVED. [CIIAP. IX. 
 
 of care and attention by the trustee,^ or if in any way the 
 trustee has become incapable of performing the duties of the 
 trust,^ or his acts or omissions show a want of reasonable 
 fidelity to the trust,^ — in all these and similar cases the old 
 trustees may be removed, and new ones substituted in their 
 room, (a) The matter rests in the sound discretion of the 
 
 1 Jones V. Dougherty, 10 Ga. 273; Harper v. Straws, 14 B. Mon. 57; 
 riolcorab V. Coryell, 1 Beas. 289; Lasley v. Lasley, 1 Duv. 117 ; and see 
 Commissioners v. Archibald, 11 Ir. Eq. 195, where L. Ch. Brady ably 
 discusses the removal of trustees. In re Bernstein, 3 Redf. (N. Y.) 20. 
 Or if a trustee identifies himself with one of two contending parties in 
 relation to the trust fund. Scott v. Rand et al., 118 Mass. 215. Or is so 
 hostile to his cotrustees as to endanger the execution of the trust. Devas- 
 mer c. Dunham, 22 Ilun (N. Y.), 87. Or is guilty of gross misconduct in 
 execution of a discretionary trust. Babbit v. Babbit, 26 N. J. Eq. 44 ; 
 Sparhawk )'. Sparhawk, 114 Mass. 356. ^ Austin v. Austin, 18 Neb. 309. 
 
 3 Cavender y. Cavender, 114 U. S. 464. 
 
 (a) See Jones v. Jones, 30 N. Y. 
 S. 177 ; EUas v. Schweyer, 40 id. 906; 
 In re Hoysradt, 45 id. 841. Mis- 
 conduct justifying a trustee's re- 
 moval, also includes, e. g., wasting 
 of the estate in unnecessary litiga- 
 tion : Re McGillivray, 138 N. Y. 308 ; 
 unreasonably or wilfully withhold- 
 ing income from a beneficiary : Ibid., 
 Wilcox V. Quinby, 16 N. Y. S. 699; 
 refusing to convey, as directed by a 
 valid decree of court : Harrison v. 
 Union Trust Co., 144 N. Y. 326; 
 threatening to make injurious dis- 
 closures, if proceedings are taken 
 against himself. Grant v. Llaclaren, 
 23 Can. Sup. 310. 
 
 " The power of a court of equity 
 to remove a trustee, and to substi- 
 tute another in his place, is inciden- 
 tal to its paramount duty to see that 
 trusts are properly executed ; and 
 may properly be executed whenever 
 such a state of mutual ill-feeling, 
 growing out of his behavior, exists 
 between the trustees, or between the 
 414 
 
 trustee and the beneficiaries, that 
 his continuance in office would be 
 detrimental to the execution of the 
 trust, even if for no other reason 
 than that human infirmity would 
 prevent the cotrustee or the benefi- 
 ciaries from working in harmony 
 with him, and although charges of 
 misconduct against him are either 
 not made out, or are grossly exag- 
 gerated." Mayy. May, 167 U. 8.310, 
 320 ; Wilson v. Wilson, 145 Mass. 
 490, 493 ; Marsden's Estate, 166 
 Penn. St. 213 ; Gartside r. Gartside, 
 113 Mo. 348; Letterstedt v. Broers, 
 9 A. C. 371, 386. 
 
 If circumstances give rise to con- 
 flict of interests between the parts 
 of trust property held on distinct 
 trusts, the English courts, under the 
 Trustee Act of 1850, § 32, would 
 not necessarily deem it expedient 
 to remove the trustees, but might 
 appoint separate trustees. In re 
 Aston's Trusts, 25 L. R. Ir. 96.
 
 CHAP. IX.] FOR WHAT CAUSES .MAY liE KK.MOVED. [§ 276. 
 
 court.^ And in a suit for tlio purpose, it will not Itc imper- 
 tinent nor scandalous to charj^e the trustee with misconduct, 
 or to impute to him a corrupt or improper motive, or to allege 
 that his behavior is vindictive towards the cestui que trust ; 
 but it will be impertinent, and may bo scandalous, to charge 
 general malice or general personal hostility. ^ If the court 
 have jurisdiction of the subject-matter, mere irregularity in 
 the proceedings or in the appointment will not make it void 
 in a collateral proceeding, nor can the regularity of the 
 proceedings or of the appointment be inquired into in a col- 
 lateral suit; such appointment must stand until it is reversed 
 by a proceeding for the purpose in the same case.^ In case 
 of a trust for creditors, the court will not at the instance of 
 some of them remove the assignee, unless he is in default, 
 or is shown to be unfit for his office.* Equity will not exer- 
 cise its power to take charge of and administer a trust when 
 it is being properly administered by the trustee.^ 
 
 § 276. It may be stated generally, that if the conduct or 
 circumstances of the trustees are such as to render it very 
 inconvenient, improper, or inexpedient for them to continue 
 in the trust, the court will exercise its discretion and relieve 
 them, and appoint others in their place; as where the trus- 
 tees were desirous of being discharged,^ or were incapable 
 through age and infirmity of acting,^ or so disagreed among 
 themselves that they could not act,^ or where cotrustees re- 
 
 ' Ibid., citing many cases. 
 
 2 Portsmouth v. Fellows, 5 Madd. 450 ; Parsons r. Jones, 26 Ga. 044. 
 
 8 Ikuld V. Ililer, 3 Dutch. 43; People v. Norton. 5 Seldon, IT'); Paules 
 V. Dilley, 9 Gill, 222 ; Curtis r. Smith, 60 Rarh. 9 ; Howard v. Waters, 
 19 How. 529; Hodc^don v. Shannon, 44 N. H. ;j72. 
 
 * Jones V. McPliiilips, 77 Ala. 314. 
 
 6 ]Meyers r. Trustees of Schools, 21 HI. App. 223. 
 
 6 Bogle V. Bogle, 3 Allen, loS; Howard v. Rhodes, 1 Keen. .581; Cov- 
 entry V. Coventry, id. 758 ; Greenwood v. Wakeford, 1 lieav. 576 ; Hamil- 
 ton V. Frye. 2 INIoll. 458. 
 
 ' Gardiner v. Downes, 22 Beav. 395; Bennett v. Honywood, Amb. 
 710. 
 
 8 Bagot V. Bagot, 32 Beav. 509; Uvedale v. Patrick, 2 Ch. Cas. 20. 
 
 415
 
 § 276.] FOR WHAT CAUSES MAY BE REMOVED. [CIIAP. IX. 
 
 fuse to act with one of their number, ^ or where the trustees 
 a])pointed were municipal officers for the time being and are 
 changed yearly,^ or where a corporation appointed trustee 
 had become subject to a foreign power, ^ — in these and the 
 like cases the courts interposed and appointed other trustees. 
 But if there is a controversy, the court will exercise a sound 
 discretion. Mere disagreements between the trustee and 
 cestui que trust will not justify a removal;* nor the fact that 
 the trustee forbids social intercourse between his family and 
 the beneficiaries,^ and if a trustee fails in the discharge of his 
 duties from an honest mistake, or mere misunderstanding of 
 them, or from a mis judgment, it is no ground for removal,^ 
 and if a trustee in good faith refuses to exercise a purely 
 discretionary power in favor of the estate, as to vary the 
 securities, he will not be removed;'^ nor will he be removed 
 for a mere constructive fraud, as for buying the trust prop- 
 erty at his own sale ;^ and where a trust was to take effect in 
 the future upon the happening of a certain event, and in the 
 meantime it was to remain passive, the court refused to in- 
 terfere, and remove the trustee for an alleged misfeasance.^ 
 In no case ought the trustee to be removed where there is no 
 danger of a breach of trust, and some of the beneficiaries are 
 satisfied with the management.^'' Nor will a trustee be re- 
 moved for every violation of duty, or even breach of the trust, 
 
 1 Uvedale v. Patrick, 2 Ch. Cas. 20. 
 
 2 Ex parte Blackburne, IJ. & W. 297 ; Webb v. Neal, 5 Allen, 575. 
 8 Att. Gen. v. Loudon, 3 Bro. Ch. 171. 
 
 4 Clemens v. Caldwell, 7 B. Mon. 171 ; Gibbes v. Smith, 2 Rich. Eq. 
 131 ; Foster v. Davies, 4 De G., F. & J. 133. Unless the duties of the 
 trustee require an intimate personal intercourse, or the trustee has dis- 
 cretionary power over the cestui que trust. McPherson v. Cox, 96 W. S. 
 404. 
 
 6 Nickels v. Philips, 18 Fla. 732. 
 
 6 In the TNIatter of Durfee, 4 R. I. 401 ; Att. Gen. v. Coopers' Co., 19 
 Ves. 192 ; Att. Gen. v. Caius College, 2 Keen, 150 ; Lathrop v. Smalley, 
 23 N. J. Eq. 192. 
 
 ' Lee V. Young, 2 Y. & C. Ch. 532. 
 
 • Webb V. Dietrich, 7 W. & S. 401. 
 
 » Sloo V. Law, 1 Blatch. C. C. 512. 
 " Berry v. Williamson, 11 B. Mon. 245. 
 416
 
 CHAP. IX.] WHEN A TRUSTEE MAY BE DISCHARGED. [§ 277. 
 
 if the fund is in no dan^'-cr of being lost. ^ (a) The ]Hjwer of 
 removal of trustees appcnnted by deed or will ought to he 
 cxcfcised sparingly by the courts. There must be a clear 
 necessity for interference to save the trust property. Mere 
 error, or even breach of trust, may not be suflicient; there 
 must be such misconduct as to show want of capacity or of 
 fidelity, putting the trust in jeopardy. ^ 
 
 § 276 a. A trust will not be allowed to fail for want of a 
 trustee; and if the nominee dies before qualifying or after- 
 ward, the court will appoint a trustee.^ So if no trustee is 
 appointed by the grantor, or his appointment is void for 
 uncertainty.^ But if the trustee of a ])0wer that is jjurely 
 personal and discretionary refuses to qualify, the trust can- 
 not be executed.^ 
 
 § 277. In removing and substituting trustees, the court 
 does not act arbitrarily, but upon certain general principles, 
 and after a full consideration of the case, {h) Irregularities 
 
 » Lathrop v. Smalley, 23 N. J. Eq. 192 ; Corlies v. Corlies, id. 
 2 Massy v. Stout, 4 Del. Ch. 27-1. 
 
 8 Scbouler, Petitioner, 134 Mass. 426; Mendenhall v. Mower, 16 S. C. 
 304. 
 
 * State V. Griffith, 2 Del. Ch. 392. 
 6 Jones V. Fulghum, 3 Tenn. Ch. 193. 
 
 (fl) Trustees, being personally Haven, 60 Conn. 314 ; Tarrant v. 
 
 liable for their negligence, uill Backus, 03 Conn. 277 ; Kane's A\y- 
 
 not necessarily be removed for this peal, 177 Penn. St. 638; Anson, 
 
 cause only, when the trust property Petitioner, 85 Maine, 79 ; "Wildey r. 
 
 is not endangered. 2 Story, Eq. Robinson, 32 N. Y. S. lOlS; In re 
 
 Jur. § 12sr); Waterman v. Alden, Carpenter, 131 N. Y. 86; Fisher r. 
 
 144 111. 90; Taylor v. IVIahoney, 94 Dickenson, 84 Va. 318; Woodruff 
 
 Va. 508; In re O'Hara, 62 Ilun, v. Woodruff, 44 N. J. Eq. 349 
 
 531; Dow r. Dow, 18 N. Y. S. 222 ; Gregg r. Gabbert, 62 Ark. 602 
 
 Lathrop v. Baubie, 106 Mo. 470; Brandon r. Carter, 119 JIo. 572 
 
 Williams v. Nichol, 47 Ark. 254. Hitch v. Stoncbraker, 125 Mo. 128 
 
 (h) This may be done upon the White v. McKeon, 92 Ga. 343 
 
 ex parte application of the benefi- Lowe i\ Suggs, 87 Ga. 577 ; City 
 
 ciary. Sullivan r. Latimer, 35 S. C. Council v. Walton, 77 Ga. 517' 
 
 422. See generally, Dailey v. New Tuttle r. Merchants' Nat. Bank, 19 
 
 VOL. I. — 27 417 '
 
 § 277.] PRINCIPLES ON WHICH COURTS ACT. CIIAP. IX. 
 
 in the proceedings of appointment not affecting the jurisdic- 
 tion of the court will not avail in collateral suits.i(«) But 
 an appointment where there is no vacancy, the former trustee 
 not having relinquished the trust nor been deprived of it for 
 abuse or mismanagement, is a nullity. ^ Where the trustees 
 are required to give security, it will order such notice and to 
 such persons as it sees fit.^ It always has regard to the 
 wishes of the author of the trust, to be gathered from the 
 instrument of trust; if he has expressed a disapprobation of 
 an individual, the court would refrain from appointing him; 
 and so the court will not appoint a new trustee with a view 
 to the interest of some of the cestuis que trust, for the trustee 
 ought to hold an even hand between all parties, and not 
 favor a particular one. Further, the court has regard to the 
 nature of the trust, and to those instrumentalities by which 
 it can best be carried into execution.* Accordingly, courts 
 
 1 McKim r. Doane, 137 Mass, 195. 
 
 2 Augusta V. Walton, 77 Ga. 525, 526. 
 
 3 Matter of Robinson, 37 N. Y. 271. 
 * In re Tempest, L. R. 1 Ch. 487. 
 
 Mont. 11; Dyer v. Leach, 91 Cal. stituted trustee usually has the same 
 
 191 ; State v. Hunt, 46 Mo. App. rights and duties as, and is subject 
 
 610. to the orders and conditions already 
 
 (a) See Kenaday v. Edwards, imposed on, the first trustee. Ibid., 
 
 134 U. S. 117; Lahey v. Kortright, Wemyss v. White, 159 Mass. 484; 
 
 132 N. Y. 450; Royce v. Adams, In re Appley, 33 N. Y. S. 724 ; Os- 
 
 123 N. Y. 402; Mulry v. Mulry, 35 borne r. Gordon, 86 Wis. 92. A 
 
 N. Y. S. 618; Correll v. Lauterbach, new trustee will not be appointed 
 
 42 id. 143; Robinson v. Schmitt, 45 simply to distribute a trust fund in 
 
 id. 253 ; Dexter r. Cotting, 149 Mass. the possession of his predecessor's 
 
 92; In re Stamford, [1896] 1 Ch. executor or administrator, but such 
 
 288 ; Edgerly v. Barker (N. H.), 32 representative will be ordered to 
 
 Atl. 766 ; Linton v. Shaw, 95 Ga. make the payment. Boyer i'. Decker, 
 
 683 ; Simmons v. McKinlock, 98 40 N. Y. S. 469; Tyler r. Mayre, 95 
 
 Ga. 738; Pettus i'. Atlantic S. Ass'n, Cal. 160; Anderson v. Northrop, 30 
 
 94 Va. 477; Chapman v. Kimball, Fla. 012. In New York, the execu- 
 
 83 ]\Iaine, 389 ; Avery v. Avery, 90 tion of a decree removing a testa- 
 
 Ky. 613 ; Re Petranek, 79 Iowa, mentary trustee or executor is not 
 
 410; Wall St. Meth. Church v. stayed by an appeal. Code Civ. 
 
 Johnson, 140 lud. 445 ; Mazelin v. Proc, § 2583 ; Stout v. Betts, 74 
 
 Kouyer, 8 Ind. App. 27. A sub- Ilun, 206. A trustee's application 
 418
 
 CHAP. TX] BANKKUriCY OF TRUSTEES. [§ 277. 
 
 will not substitute trustees upon the mere caprice of the cestui 
 que trust, and witliout a reasonable cause/ and although the 
 instrument of trust or a statute gives the cestui que trust full 
 power to remove and appoint other trustees, yet good cause 
 nuist be shown or the court cannot l>e put in motion," nor 
 will they apfjoint a trustee out of the jurisdiction without 
 security.3 There is no absolute rule of law that prevents a 
 cestui que trust from being a trustee for himself and others, 
 and the court is sometimes obliged to appoint him; but the 
 arrangement is irregular and sometimes disastrous, and the 
 court will not sanction it if it can be avoided.* (a) So a hus- 
 band may be trustee for a wife, and a wife for a husband, ° {h) 
 
 1 O'Keeflfe v. Calthorpe, 1 Atk. IS ; Pepper v. Tuckey, 2 Jon. & La. 95; 
 Ward IV Dorch, G9 N. C. 279; Bouldin v. Alexander, 15 Wall. 132. 
 
 2 Stevenson's Appeal, 59 Penn. St. 101; 68 id. 101. 
 
 8 Ex parte Roberts, 2 Strob. 86 ; Gibson's Case, 1 Bland, 138. 
 
 * Passingham v. Sherborne, 9 Beav. 424 ; Reid v. Reid, 30 Beav. 388; 
 Ex parte Glutton, 17 Jur. 988; Ex parte Conybeare's Settlement, 1 W. R. 
 458 ; Wilding v. Bolder, 21 Beav. 222 ; Craig v. Hone, 2 Edw. Ch. 554. 
 
 ^ Tweedy v. Urquhart, 30 Ga. 446 ; Livingston v. Livingston, 2 Johns. 
 Ch. 541 ; Bennett v. Davis, 2 P. Wins. 310 ; Shirley v. Shirley, 9 Paige, 
 363 ; Jamison v. Brady, 6 S. & R. 467 ; Boykin v. Cipples, 2 Hill, Ch. 200; 
 
 to resign and to have a new trustee ficiary. Griswold v. Sackett (R. I.), 
 
 appointed is there a special pro- 42 Atl. 808. 
 
 ceeding. In re Ilolden, 126 X. Y. (a) Story v. Palmer, 46 N. J. Eq. 
 
 589. 1; Curran v. Green, 18 R. I. 329; 
 
 "Independently of statute, a People r. Donohoe, 70 Hun, 317. 
 court of equity cannot appoint a (J)) See Gaskill v. Green, 152 
 person to execute a transfer of the Mass. 526; Grundy v. Drye (Ky.), 
 property of another." Field, J., in 48 S. W. 155; Stearns v. Fraleigh, 
 McCann v. Randall, 147 Mass. 81. 39 Fla. 603; 1 Ames on Trusts (2d 
 See 1 Ames on Trusts (2d ed), 249. ed.), 220, n. In England the Mar- 
 Where a will provided for the ried Women's Property Act, 18"^2. 
 appointment of new trustees by the does not enable a woman, married 
 court on the application of the sur- after that Act became law, when a 
 viving trustee and the beneficiary, trustee of realty for sale, to convey 
 it was held that the appointment to the purchaser without her Inis- 
 might be made by the court, under band's concurrence, and by deed 
 its general chancery jurisdiction, acknowledged by her. In re Hark- 
 without the consent of the surviv- ness and Allsopp's Contract, [1890J 
 ing trustee, who was also a bL-ne- 2 Ch. 358. 
 
 419
 
 § 278.] BANKKUPTCY OF TRUSTEES. [CHAP. IX. 
 
 but difficulties frequently grow out of the relation, and the 
 courts have sometimes said that they would not make such 
 appointments.^ In no case will the court remove old trustees 
 and substitute new ones, unless satisfied of the necessity of 
 the removal, and of the fitness of the new trustee proposed. 
 Nor will the court authorize the new trustees to nominate 
 their successors. There was some doubt and difference of 
 practice at first; ^ but it is now settled, except in charities,^ 
 that the court will not delegate this part of its jurisdiction 
 to new appointees.^ 
 
 § 278. If the instrument of trust requires the trustees of a 
 charity to have a particular residence, it is irregular to ap- 
 point others not answering that description, provided there 
 are those proper to be trustees.^ But if it is the custom to 
 appoint such non-residents, the court will not remove them, 
 but will see that vacancies when they occur are properly 
 filled.^ And, generally, if an irregular appointment has 
 been acquiesced in for a long time, the court will not re- 
 move.'^ In making the selection, the inquiry is whether the 
 proposed appointment is proper, not whether it is the most 
 proper.^ 
 
 Picquet v. Swann, 4 Mason, 455; Griffith v. Griffith, 5 B. Mon. 113; 
 Gibson's Case, 1 Bland, 138 ; Watkins v. Jones, 28 Ind. 12 ; Gardner v. 
 Weeks, 32 Ga. 696. 
 
 1 Dean v. Sanford, 9 Rich. Eq. 423. But the court will not appoint 
 the husband trustee, under a trust for the separate use of his wife. Ely 
 V. Burgess, 11 R. I. 115; Ex parte Hunter, Rice, Ch. (S. C.) 294. 
 
 2 Joyce V. Joyce, 2 Moll. 276 ; White v. White, 5 Beav. 221. 
 
 3 Lewin on Trusts, 606 (5th ed.). 
 
 4 Bayley v. Mansell, 4 Madd. 226 ; Brown v. Brown, 3 Y. & C. 395; 
 Bowles V. Weeks, 14 Sim. 591 ; Oglander v. Oglander,2 De G. & Sm. 381 ; 
 Southwell V. Ward, Taml. 314; Holder v. Durbin, 11 Beav. 594; overrul- 
 ing White V. White, 5 Beav. 221. 
 
 6 Att. Gen. v. Cowper, 1 Bro. Ch. 439. 
 
 « Att. Gen. v. Daugars, 33 Beav. 621 ; Att. Gen. v. Clifton, 32 Beav. 
 596 ; Att. Gen. v. Stamford, 1 Phill. 737. 
 
 7 Att. Gen. v. Cuming, 2 Y. & C. Ch. Ca. 150. 
 ® Lancaster Charities, 7 Jur. (x. s.) 96. 
 
 420
 
 CHAP. IX.] BANKRUPTCY OF TRUSTEES. [§ 279. 
 
 § 279. It is laid down in several cases, that if a trustee 
 becomes bankrujit he may be removed,' or if he becomes in- 
 solvent and compounds with his creditors; and this is on the 
 ground that the cestui que trust has a right to have the trust 
 administered by responsible trustees, (a) The English Bank- 
 rupt Act^ provides, that, if a trustee becomes bankrupt, the 
 chancellor, on petition and due notice, may order the trust 
 estate to be conveyed by the bankrupt, the assignees, and all 
 other persons interested, to such other persons as the chan- 
 cellor shall think fit, upon the same trusts. Under this stat- 
 ute it has been determined that the court will exercise its 
 discretion whether to remove the bankrupt or not,^ but that 
 prima facie the bankrupt is to be removed,* although he may 
 have obtained his discharge.^ But the court will not inter- 
 fere long after the bankruptcy to remove the trustee, if he 
 has obtained his discharge.^ Generally the insolvency or 
 bankruptcy of a trustee docs not disqualify him for the 
 trust, ^ nor docs his bankruptcy affect the trust estate in his 
 hands; and his certificate does not discharge him from fidu- 
 ciary obligations.*^ In the United States, trustees are, or 
 
 1 Bainbrigge v. Blair, 1 Beav. 495 ; In re Roche, 1 Conn. & Laws, 
 306; Com., &c. v. Archbold, 11 Ir. Eq. 187; Harris v. Harris, 29 Beav. 
 107. 
 
 2 12 & 13 Vict. 0. 106, § 130. 
 
 8 Re Roche, 2 Dr. & W. 289 ; 2 H. L. Cas. 401 
 
 * Bainbrigge v. Blair, 1 Beav. 495. 
 6 Ibid. 
 
 6 Re Bridgman, 1 Dr. & Sm. 164. 
 
 » Shryock v. AVaggoner, 28 Pa. St. 430 ; Turner v. Maule, 5 Eng. L. & 
 Eq. 222 ; Ex parte Watts, 4 Eng. L. & Eq. 67. 
 
 * Belknap v. Belknap, 5 Allen, 468. 
 
 (a) A trustee will not be removed v. Lewis, [1891] 2 Ch. 81. A mort- 
 
 nieri'ly because he has been in finan- gagee who is a trustee and has be- 
 
 cial dilKculties which have been sur- come bankrupt, cannot, as defendant 
 
 mounted. Assets Realization Co. to a foreclosure suit by a prior mort- 
 
 V. Trustees, &c., Ins. Corp., 05 L. J. gagee, properly represent his cestui 
 
 Ch. 74 ; 44 W. R. 126. "An insolvent que trusts, who are necessary parties, 
 
 trustee is not a sufficient party to a under the English practice. Francis 
 
 suit,so thattheres/!//Y"e'r!<.'>Vmaybe v. Harrison, 43 Ch. D. 183. 
 bound." Per North, J., in Aylward 
 
 421
 
 § 280.] BANKEUPTCY OF TRUSTEES. [CHAP. IX. 
 
 may be, required, in the great majority of cases, to give 
 bonds or security for the safety of the trust fund : in all such 
 cases it would seem that the bankruptcy of the trustee would 
 not per se render him removable, unless there was some mis- 
 conduct that rendered it proper for the court to exercise a 
 sound discretion, (a) 
 
 § 280. In Bogle v. Bogle, ^ the court determined that one 
 who, without compensation and for no definite time, under- 
 took a trust for the benefit of another was entitled to a decree 
 discharging him, when the further care of the property be- 
 came inconvenient to him. Generally, trustees who have 
 acted are not entitled, as against the trust estate, to refuse 
 at pleasure to continue : they must have some good cause to 
 entitle them to be relieved. 2(/;) If they have received a 
 legacy or other benefit given to them as trustees, they cannot 
 be allowed to retire except for good cause, ^ at least without 
 restoring the legacy. It is a good cause for relief if the 
 cestui que trust incumber and complicate the estate, and 
 embarrass the trustee in the performance of his duties.^ 
 But where there is no cause for a discharge, except the wish 
 of the trustee, or his convenience, he ought to pay the costs 
 of the proceeding, and not impose the burden and expense 
 upon the estate ; ^ and so if the old trustee is removed for 
 
 1 3 Allen, 158. 
 
 2 Greenwood v. Wakeford, 1 Beav. 576 ; Cruger v. Halliday, 11 Paige, 
 314 ; Jones v. Stockett, 2 Bland, 409 ; Re Meloney, 2 Jon. & La. 391. 
 
 8 Craig V. Craig, 3 Barb. Ch. 76. 
 
 * Howard v. Rhodes, 1 Keen, 481 ; Coventry v. Coventry, id. 758 ; 
 Greenwood v. Wakeford, 1 Beav. 576 ; Hamilton v. Frye, 2 Moll. 458. 
 
 5 Matter of .Tones, 4 Sandf. Ch. 615; Howard v. Rhodes, 1 Keen, 581; 
 Courtenay v. Courtenay, 3 Jou. & La. 529. 
 
 (a) See Moorman v. Crockett, 90 cause prevents a settlement of his 
 Va. 185 ; Deroy v. Richards, 46 accounts. In re Olmstead, 49 N. Y. 
 Pitts. L. J. 78 ; New York Security S. 104. See Conant v. Wright, 48 
 Co. V. Saratoga Gas Co., 88 Hun, id. 422. The court may impose 
 569. conditions on accepting a resigna- 
 
 (b) A trustee will not be allowed tion. In re Curtiss, 37 N. Y. S. 
 to resign if a pending suit or other 586. 
 
 422
 
 CHAP. IX.] BANKRUPTCY OF TRUSTEES. [§ 280. 
 
 misconduct on his part. ^ (a) But if the trustee has a good 
 reason fur his discharge, he will be entitled to his costs out 
 of the estate as between solicitor and client.^ Courts of 
 equity, by virtue of their general chancery powers, have 
 jurisdiction to accept the resignation of trustees, or to remove 
 them for cause, and to appoint new trustees; and courts of 
 probate in several States have power l)y statute to remove 
 and appoint new trustees, whether they are created by will 
 or deed. 3 Proceedings are generally commenced directly for 
 the removal and appointment of trustees; but when a bill or 
 petition is already pending for the administration of the 
 trust, the appointment or removal may be made upon motion 
 in those proceedings,* And, further, if the trusts created in 
 an instrument are of such a nature that they can be severed 
 without injury to the estate, courts may allow the trustee to 
 resign a part, and will commit that part to other trustees 
 under proper arrangements for security.^ But courts will 
 
 ^ Ex parte Greenhouse, 1 Madcl. 92; Howard i;. Rhodes, 1 Keen, 581. 
 
 2 Coventry v. Coventry, 1 Keen, 758 ; Taylor v. Glanville, 3 ^ladd. 
 176; Curteis v. Chandler, G id. 123; Greenwood v. Wakeford, 1 Beav. 
 581. 
 
 * Bowditch V. Bannelos, 1 Gray, 220; King v. Donnelly, 5 Paige, 4G; 
 De Peyster v. Clendining, 8 Paige, 205 ; Field v. Arrowsmith, 3 Humph. 
 442 ; McCosker v. Brady, 1 Barb. Ch. 329; In re Potts, 1 Ash. 340; :\lat- 
 ter of Mechanics' Bank, 2 P)arb. S. C. 440 ; Dawson iv Dawson, Kice, Eq. 
 243; Lee v. Randolf, 2 Hen. & M. 12; In re Eastern R. R. Co., 120 
 Mass. 412. 
 
 * V. Osborne, 6 Yes. 455; Webb v. Shaftesbury, 7 Yes. 487; 
 
 I'. Roberts, 1 J. & W. 251; Ex parte Potts, 1 Ash. 340. 
 
 ^ Craig V. Craig, 3 Barb. Ch. 76. But where there is a single power 
 of appointment in the trust instrument, though the estates are of a differ- 
 ent description, or are held under a different title, or upon different 
 trusts, there is no authority for dividing the trusts, and appointing differ- 
 
 («) A trustee or guardian is not strument on the ground of fraud on 
 
 to be cliarged personally for the ex- the part of the creator of the trust, 
 
 penses incurred in a successful resis- a beneficiary thereunder cannot re- 
 
 tance to proceedings for his removal, quire payment of the income thereby 
 
 Coggins V. Flythe, 113 N. C. 102. jjrovid.'d for him. Bissell v. Couti- 
 
 While proceedings by a creditor ueutal Trust Co., 55 N. Y. S. 570. 
 are pendiug to set aside a trust in- 
 
 423
 
 § 281.] FOR WHAT CAUSES TRUSTEES MAY RESIGN. [CIIAP. IX. 
 
 not remove trustees against their will from one part of the 
 trust, and leave them burdened with the responsibility of the 
 remainder. ^ If the cestuis request a trustee who has misap- 
 propriated funds, &c., to resign, and make a promise to him 
 on consideration that he will do so, the promise is void ; it 
 was the trustee's duty under such circumstances to comply 
 with the request. 2 
 
 § 281. If a testator in his will appoint his executor to be a 
 trustee, it is as if different persons had been appointed to 
 each office; 2 a court of equity cannot remove him from the 
 executorship, for courts of probate have exclusive jurisdic- 
 tion over the appointment and removal of administrators and 
 executors ; but if the office of trustee is separate from and 
 independent of the office of executor, a court of equity may 
 remove him from the office of trustee, and leave him to act 
 as executor ; or if he has completed his duties as executor, 
 and is holding and administering the estate simply as trus- 
 tee, a court of equity may remove him.* (a) 
 
 ent sets of trustees for the different estates or trusts. Cole v. Wade, 16 
 Ves. 27; Re Anderson, 1 Llo. & Goo. t. Sugd. 29; Curtis i;. Smith, 6 
 Blatch. 537. 
 
 ^ Sturges V. Knapp, 31 Vt. 1. 
 
 2 Withers v. Ewing, 40 Ohio St. 406, 407. 
 
 8 Parsons v. Lyman, 5 Blatch. C. C. 170 ; Perkins v. Lewis, 41 Ala. 
 649. The fact of qualification as executor by a person named in the wiU 
 both as executor and trustee does not of itself prove his acceptance of the 
 oflice of trustee. Anderson v. Earle, 9 S. C. 460. 
 
 4 Wood V. Brown, 34 N. Y. 339 ; Leggett v. Hunter, 25 Barb. 81 ; 19 
 N. Y. 445; Craig v. Craig, 3 Barb. Ch. 76; Matter of Wordsworth, 2 
 Barb. Ch. 381; Ex parte Dover, 5 Sim. 500; Quackenboss v. Southwick, 
 41 N. Y. 117. 
 
 (a) This applies to a trustee who an executor so escape on the ground 
 
 resides within the jurisdiction, but that he is now a trustee. Cranson 
 
 who was created trustee by the will v. Wilsey, 71 Mich. 356 ; Wooden 
 
 of a citizen of another State, never v. Kerr, 91 Mich. 188; McBride v. 
 
 proved within the jurisdiction. Mclntyre, id. 406 ; Loveman w. Tay- 
 
 Jones V. Jones, 30 N. Y. S. 177, lor, 85 Tenn. 1 ; Leonard v. Haworth, 
 
 187. A trustee cannot escape ac- 171 Mass. 496. Upon the question 
 
 counting in equity on the ground when an executor becomes a trustee, 
 
 that he is still an executor, nor can see 1 Ames on Trusts (2d ed.), 73 ; 
 424
 
 CHAP. IX.] WHO may institute ruocEEDiNCs. [§ 282. 
 
 § 282. Courts of C(iuity, having jurisdiction to remove and 
 appoint trustees,^ may be applied to either by bill or peti- 
 tion;'^ (a) or, if a bill is already pending for administration 
 of the estate, application may be made in those proceedings, 
 by motion. 3 All persons interested in the trust may institute 
 proceedings in their own names, but notice should be given 
 to all other parties in interest.* If the trustee must give 
 
 1 Bowditch V. Bannelos, 1 Gray, 220, and cases cited last section; Wil- 
 liamson V. Suydam, G Wall. 723 ; Livingston, Pet'r, 34 N. Y. 5o5. In 
 absence of statutory provision, the weight of authority requires that the 
 proceedings should commence by bill. 
 
 '■^ Mitchell V. Fitner, 15 Ga. 319; Ex parte Knust, 1 Bail. Eq. 489; Ex 
 parte Greuville Academies, 7 Rich. 47U; Matter of Van Wyck, 1 Barb. 
 Ch. 565 ; Ex parte Ilussey, 2 Whart. 330 ; Ex parte Rees, 3 V. & B. 11 ; 
 Miller o. Knight, 1 Keen, 129 ; Barker v. Peile, 2 Dr. & Sm. 340. This 
 matter is mostly regulated by the statutes of the several States. Although 
 proceedings by statute may be originated by petition, yet the proceedings 
 may be by bill. Barker v. Peile, ut supra; lie Foster's Will, 15 Hun 
 (N. Y.), 387 ; Be Ballou, Pet'r, 11 R. I. 360. In some cases it is said that 
 the right to proceed by petition is confined to cases where there is a 
 breach of the trust. In re Sanford Charity, 2 Mer. 456 ; Re Livingston, 
 34 N. Y. 5G7. 
 
 8 V. Osborne, 6 Ves. 455 ; v. Roberts, 1 J. & W. 251 ; 
 
 Webb V. Shaftesbury, 7 Ves. 487; Ex parte Potts, 1 Ash. 340. 
 
 * Abbott, Pet'r, 55 Maine, 580 ; Williamson v. W^ickersham, 2 Coll. 
 52; Guion v. Melvin, 69 N. C. 242; Wardle v. Hargreaves, 11 Law Jour. 
 (n. s.) Ch. 126; Henry v. Doctor, 9 Ohio, 49. As to who are parties in- 
 terested entitled to notice. Bradstreet v. Butterfield, 129 Mass. 339. 
 In Pennsylvania, under an act which provides that proceedings shall be 
 
 Hodges' Estate, 63 Vfc. 661; Prince trustee, he must give bond as trus- 
 
 V. Ladd (Texas), 15 S. W. 159. tee before he can exonerate himself 
 
 The settlement of an executor's from his liability as executor, 
 
 accounts in the probate court, and White v. Ditson, 140 Mass. 351 ; 
 
 the transfer of a balance to his ac- Crocker v. Dillon, 133 Mass. 91. 
 
 count as trustee, do not conclusively (a) The removal of trustees and 
 
 end the right to question his invest- the appointment of subsequent ones 
 
 ments made as executor. Mattocks should be by bill in equity, and not 
 
 V. Moulton, 84 Maine, 545. by petition. Zehubar r. Spillman, 
 
 As actual payment cannot be 25 Fla. 591, 594. See 1 Dan. Ch. 
 
 made by a person to himself, it is Prac. 348 ; Tuttle v. Merchants' 
 
 held in Massachusetts that, when Nat. Bank, 19 Mont. 11. 
 the same person is executor and 
 
 425
 
 § 282.] WHO MAY INSTITUTE PEOCEEDINGS. [CIIAP. IX. 
 
 security for the fund, notice is within the discretion of the 
 court ;^ but if the trust instrument provides that notice of 
 the proceedings for the appointment of new trustees shall be 
 given to particular persons, the appointment will be irreg- 
 ular if the notice is not given. ^ The cestui que trust and 
 those directly interested may of course originate the suit,^ 
 and those interested in remainder or reversion may begin 
 proceedings.^ The trustees may bring the suit against the 
 cestui que trust ;^ or one or more of several trustees may 
 bring the suit against one or more of their cotrustees, join- 
 ing the cestui que trust either as plaintiffs or defendants.^ In 
 all public charities the Attorney General may begin proceed- 
 ings by information or petition with or without a relator.'^ 
 But where a settlor had conveyed property to a trustee for 
 himself for life, and at his decease to his issue according to 
 the statute of distributions, and in case of his dying without 
 issue to his nephews, it was held that the trust was only an 
 
 upon petition " by any person interested, whether such interest be imme- 
 diate or remote," it was held that the interest for such a purpose must 
 be such as will certainly fall into possession sometime ; and a bare possi- 
 bility, dependent on the death of the first taker without issue, is not such 
 an interest as will authorize a citation. Keene's App., 60 Penn. St. 506. 
 But see Hartman's App., 90 id. 206, under a subsequent statute. 
 
 1 Matter of Robinson, .37 N. Y. 261. 
 
 2 Washington, &c. R. R. Co. v. Alexander, &c. R. R. Co., 19 Grat. 
 592. 
 
 3 Bainbrigge v. Blair, 1 Beav. 495 ; Bennett v. Honywood, Amb. 708 ; 
 Buchanan r. Hamilton, 5 Ves. 722; Portsmouth v. Fellows, 5 Madd. 450 ; 
 Howard w. Rhodes, 1 Keen, 581; Millard v. Eyre, 2 Yes. Jour. 94; In 
 Matter of Smith's Settlement, 2 De G. & Sm. 781 ; Ex parte Tunno, 1 
 Bail. Eq. .395. 
 
 4 Finlay r. Howard, 2 Dr. & W. 490 ; Cooper v. Day, 1 Rich. Eq. 26 ; 
 Re Livingston, 84 N. Y. 567; Joyce v. Gunnels, 2 Rich. Eq. 260; Ee 
 Sheppard, 1 N. R. 76, overruling same case, 10 W. R. 704 ; s. c. 4 De G., 
 F. & J. 423. 
 
 * Coventry v. Coventry, 1 Keen, 758 ; Greenwood v. Wakef ord, 1 Beav. 
 576. 
 
 « Lake v. De Lambert, 4 Ves. 592. 
 
 ' Att. Gen. v. London, 3 Bro. Ch. 171; Att. Gen. v. Stephens, 3 M. & 
 K. 347; Att. Gen. v. Clack, 1 Beav. 467; Re Bedford Charity, 2 Swanst. 
 520; Wilson r. Wilson, 2 Keen, 251; Re Fowey's Charities, 4 Beav. 225. 
 426
 
 CHAP. IX.] WHO MAY INSTITUTE riiOCEEDINGS. [§ 283. 
 
 implied trust for the nephewB ; that they had no interest in 
 the express trusts fur the settlor for life ; and that they could 
 not maintain a petition for the removal of the trustee.^ And 
 where a cestui que trust drew an order on the trustees in favor 
 of her children, it was held that this did not give the chil- 
 dren such an interest in the funds that they were parties to 
 proceedings for the appointment of new trustees. ^ If a trus- 
 tee retires, allowing a new trustee to be appointed, without 
 communication with the cestui que trust, and a suit is insti- 
 tuted complaining of such appointment, but seeking no relief 
 against such retiring trustee, he is not a necessary party. ^ 
 And if a trustee transfers the property to a new trustee ap- 
 pointed by order of court, he will be bound by the proceed- 
 ings, though they were irregular and without notice to him.^ 
 If some of the cestuis que trust are minors, they ought to have 
 a guardian ad litem, but a new trustee may be appointed.^ 
 The proceedings ought to be in a court having jurisdiction of 
 the original trust. ^ 
 
 § 283. If all the parties are sui juris, and consent to the 
 appointment of the new trustee, the court will at once make 
 the appointment, and direct the conveyances to be made.'^ 
 But generally it will be referred to a master to report a 
 proper person to be appointed.^ Upon the coming in of the 
 master's report, exceptions may be taken to it in the usual 
 manner ; but the exceptions must be to the unfitness of the 
 
 1 In re Livingston, 34 N. Y. 555; Ex parte Brown, Coop. 295. 
 
 2 Hawley v. Ross, 7 Paige, 103. 
 
 8 Marshall v. Sladden, 7 Hare, 427. 
 
 4 Thomas v. Iligham, 1 Bail. Eq. 222. 
 
 6 Hunters. Gibson, 16 Sim. 158. 
 
 6 Howard r. Gilbert, 39 Ala. 72. 
 
 ' O'Keeffe v. Calthorpe, 1 Atk. IS ; Young v. Young, 4 Cranch, C. C. 
 499. 
 
 8 Howard r. Rhodes. 1 Keen, 581; Buch.anan v. Hamilton. 5 Ves. 722; 
 Att. Gen. v. Stephens, 3 M. & K. 352; Millard r. Eyre. 2 Ves. Jr. 94; 
 
 Seton's Decrees, 249; Matter of Stuyvesant, 3 Edw. Ch. 229; c. 
 
 Roberts, 1 J. & W. 251 ; Att. Gen. i\ Clack, 1 Beav. 474 ; Att. Gen. r. 
 Arran, 1 J. & W. 229. 
 
 427
 
 § 284.] PROCEEDINGS TO SUBSTITUTE TRUSTEES. [CHAP. IX. 
 
 person recommended,^ and not that some other one is more 
 fit. 2 
 
 § 284. The appointment of a new trustee is not complete 
 until the property is vested in him; therefore the court 
 usually embraces, in the decree appointing a new trustee, a 
 direction for a proper conveyance to be executed to him 
 alone, or to him jointly with the continuing or remaining 
 trustees, by all the requisite parties, whether remaining trus- 
 tees, or heirs or representatives of the last survivor, or 
 trustees who have been removed from office.^ If the old 
 trustee refuses to deliver the property to the new incumbent, 
 the former and his bondsmen are liable.^ In some States it 
 is provided by statute, that, upon qualification by the newly 
 appointed trustee, the trust estate shall vest in him in like 
 manner as it had or would have vested in the trustee in whose 
 place he is substituted.^ It has been determined that no 
 conveyance is necessary where such statutes are in force, but 
 that the trust estate vests immediately upon the appointment, 
 by virtue of the statute, with all the powers and duties essen- 
 tial to the purposes of the trust, ^ And so if the instrument 
 of trust provides for the vesting of the estate in the remain- 
 ing, surviving, or new trustees, upon the removal, resigna- 
 tion, death, and appointment of others, the trust estate will 
 vest according to the provisions of the instrument, as the 
 creator of the trust may mould it at his pleasure.' It has 
 already been seen that, if one of the trustees disclaims with- 
 
 1 Att. Gen. v. Dyson, 2 S. & S. 528, 
 
 2 Ibid. 
 
 8 O'Keeffe v. Calthorpe, 1 Atk. 18. 
 
 * Bassett v. Granger, 136 Mass. 174; McKim v. Doane, 137 Mass. 195. 
 
 6 Mass. Public Stat.; Trustees Act, 1850, 12 & 13 Vict. c. 74, §§ 33- 
 36; Stearly's App., 3 Grant, 270. See Golder v. Bressler, 105 111. 419. 
 
 6 Parker v. Converse, 5 Gray, 341; Re Fisher's Will, 1 W. R. 505; 
 Smith V. Smith, 3 Dr. 72 ; Woolridge v. Planters' Bank, 1 Sneed, 297 ; 
 Goss V. Singleton, 2 Head, 67; Gibbs v. Marsh, 2 Met. 243, 253; Duffy 
 V. Calvert, 6 Gill, 487; Burdick r. Goddard, 11 R. I. 516. 
 
 ' Ellis r. Boston, Hartford, & Erie R. R., 107 Mass. 13; National 
 Webster Bank v. Eldridge, 115 Mass. 424. 
 428
 
 CHAP. IX.] riiOCEEDINGS TO SUBSTITUTE TRUSTEES. [§ 234. 
 
 out having acted or accepted the trust, the estate vests in the 
 acting trustees; and if a sole trustee disclaims before acting, 
 the estate vests in the heirs-at-law subject to the trust. ^ So 
 where a vacancy results from the incapacity of the trustee, 
 or upon his removal from the jurisdiction of the court, the 
 want of power to compel a conveyance, and the necessity of 
 the case, rcfjuire the court to recognize the power of the 
 remaining trustee to convey to his new cotrustee without a 
 conveyance from the retiring or removed trustee. ^ In trusts, 
 that do not come within the words or the spirit of the statute 
 in relation to the vesting of trust estates in new appointees, 
 and in cases where the trust instrument is silent concernins 
 the vesting of the estate in new trustees, and there is no 
 necessiti/ for a departure from the ordinary rule of a convey- 
 ance, a conveyance must be made to the new trustee, in order 
 to vest the estate in him.^ When the removed trustee fails 
 to obey an order of court for the delivery of the trust prop- 
 erty to the new trustee, the latter may sue on the bond of 
 the former trustee for damages.^ The acceptance by the new 
 trustee of a statement found among the papers of a deceased 
 trustee showing his receipts and disbursements on account 
 of the trust estate may amount to an accounting between the 
 old and new trustees.^ (a) 
 
 1 Ante, § 273. 
 
 2 Cape V. Bent, 9 Jur. 653; O'Reiley f. Alderson, 8 Hare, 101 ; Men- 
 nard v. Wilford, 1 Sm. & Gif. 426; Eaton v. Smith, 2 Beav. 236; Cooke 
 V. Crawford, 13 Sim. 91; In re Moravian Soc, 26 Beav. 101. 
 
 8 Folley V. Wontner, 2 Jac. & W. 24; Owen v. Owen, 1 Atk. 496; 
 Foster v. Goree, 4 Ala. 440; Crosby r. Huston, 1 Tex. 203; Miller i-. 
 Priddon, 1 De G., U. & G. 339. 
 
 * Phillips V. Ross, 36 Ohio St. 458. 
 
 ^ Gorsuch V. Briscoe, 56 Md. 573. 
 
 (a) New trustees are not affected York it seems that the appointment 
 
 with notice of incumbrances on the of a new trustee does not preclude 
 
 trust estate not disclosed in the an administrator from denying the 
 
 trust documents, or by the retiring existence of the trust as created by 
 
 trustee who knew thereof. Hallows his decedent, lie Carpenter, 131 
 
 V. Lloyd, 39 Ch. D. 686. In New N. Y. 86. 
 
 429
 
 § 286.] NUMBER TO BE APPOINTED. [CHAP. IX. 
 
 § 285. A trustee may be relieved from his office by the 
 consent of all parties interested, without the decree of a 
 court, even if the instrument of trust is silent upon that sub- 
 ject. But the transaction operates rather as an estoppel of 
 the cestui que trust than as an affirmative transfer of power. 
 Thus, no cestiii que trust who concurs in a breach of trust can 
 afterwards call the trustee to an account for the disastrous 
 consequences ;i therefore, if a trustee conveys the trust estate 
 to another person, and appoints such other person trustee, 
 and all the cestuis que trust execute the conveyances, or other- 
 wise consent to the transaction, they would be forever pre- 
 cluded from holding the retiring trustee responsible for any 
 delegation of his office, or for any loss that occurred after- 
 wards. ^ But the trustee must see to it that all the cestuis que 
 trust are parties to the transaction and concur; for, even in 
 the case of a large number of creditors, each individual must 
 act for himself, or he is not estopped, and the consent of a 
 majority cannot affect the rights of one who did not concur.^ 
 The trustee must also see to it that all the cestuis que trust 
 are sui juris, and not married women, infants, or other per- 
 sons incapable of acting, or of no legal capacity to consent. 
 For if there are such cestuis que trust, there can be no dis- 
 charge and substitution of trustees without the sanction of 
 the court, in the absence of a power in the instrument of 
 trust;* or if there may be parties in interest not yet in exist- 
 ence, as if the trust is for children not yet born, there can 
 be no change of trustees by consent. But a married woman 
 is considered sui juris in respect to her sole and separate 
 estate, where there is no restraint against anticipation or 
 alienation.^ 
 
 § 286. If there are two or more trustees named in an in- 
 strument of trust with power to appoint successors, and they 
 
 1 Wilkinson v. Parry, 4 Russ. 276. 2 ibij. 
 
 2 Colebrook's Case, cited Ex parte Hughes, 6 Ves. 622; Ex parte Lacj, 
 id. 628-630, n. 
 
 * Cruger v. Halliday, 11 Paige, 314. 
 
 6 Hulme V. Hulme, 1 Bro. Ch. 20; Lewin on Trusts, 540, 541 
 (5th ed.). 
 
 430
 
 CHAP. IX.] NUMBER TO BE APPOINTED. [§ 286. 
 
 all retire at the same time, they ow^ht not to appoint a 
 single trustee onlt/ in the place of two or more.' In such 
 case the settlor has fixed the number which he thinks neces- 
 sary for the proper administration and safety of the trust 
 fund; and if a single trustee is ajipointed and wishes to re- 
 tire, he ought not to appoint a plurality of trustees, for in 
 such a case he ought not to increase the machinery and ex- 
 pense of the trust contrary to the settlor's intention. ^ But 
 the power may be so drawn that several may be put in place 
 of one, or one in the place of several. Thus where a testator 
 appointed two trustees, and the surviving or continuing trus- 
 tee or trustees were authorized to appoint one or more per- 
 sons to be trustee or trustees, in the room of the trustee or 
 trustees so dying, etc., the surviving trustee appointed two 
 new trustees, and the appointment was held by the court to 
 be authorized. 3 So, three trustees have been appointed in 
 place of two,* and three have been authorized in place of 
 four,^ and Uvo in place of one,*' and four in place of five.' 
 In another case, one trustee was appointed by the court in 
 place of two.^ And if a successor cannot be found to a retir- 
 ing trustee, the court may appoint the continuing trustees to 
 
 1 Hulme V. Hulme, 2 M. & K. 682 ; Mass. Gen. Hospital c. Amory, 12 
 Pick. 445. 
 
 ' Rex V. Lexdale, 1 Burr. 448 ; Ez parte Davis, 2 Y. & C. Ch. Ca. 468; 
 3 Mont. D. & De G. 304. 
 
 8 D'Almaiue v. Anderson, Lewin on Trusts, 468 (5th ed.) ; Hill on 
 Trustees, 182. 
 
 * Meinertzhagen v. Davis, 1 Col. C. C. 335. 
 
 6 Emmet v. Clarke, 3 Gif. 32. 
 
 6 Ilillman v. Westwood, 3 Eq. R. 142. 
 
 '' Corrie v. Byrom, Lewin on Trusts, 468 (5th ed.) ; Hill on Trustees, 
 181. 
 
 8 Greene i'. Borland, 4 Met. 330. In this case the appointment was 
 assented to by all parties, and great stress was laid upon that fact. The 
 couit might also have said that the proceedings were in a collateral matter, 
 and that, as long as the appointment by a court having jurisdiction 
 stood unreversed, its validity could not be tried in another and distinct 
 proceeding. The case of Greene v. Borland is not necessarily inconsistent 
 witli Mass. Gen. Hospital v. Amory, 12 Pick. 445, decided by the same 
 court. Dixon i'. Homer, 12 Cush. 41 ; Att. Gen. r. Barbour, 121 Mass. 
 563 ; Hammond v. Granger, 128 Mass. 272. 
 
 431
 
 § 287.] FORM OF POWER FOR NEW APPOINTMENT. [CIIAP. IX. 
 
 be sole trustee or trustees.^ Where real estate is given in 
 trust to several persons and to the survivors or survivor if 
 some decline to act, the others have the whole legal estate 
 and all the powers of the trust. ^ 
 
 § 287. The duties and powers of trustees cannot be dele- 
 gated to others, unless there is express authority for that 
 purpose given in the instrument creating the trust.^(a) It 
 follows, that a power to appoint new trustees can seldom or 
 never exist, except in express trusts created by deed or will. 
 The person who creates the trust may mould it into whatever 
 form he pleases: he may therefore determine in what man- 
 ner, in what event, and upon what condition the original 
 trustees may retire and new trustees may be substituted. 
 All this is fully within his power ; and he can make any legal 
 provisions which he may think proper for the continuation 
 and succession of trustees during the continuance of the 
 trust. ^ And vacancies cannot be filled in any other way than 
 that named by the grantor, unless in consequence of a statu- 
 
 1 In re Stokes Trusts, L. R. 13 Eq. 333. 
 
 2 Long V. Long, 62 Md. 33, see § 414, Shockley v. Fisher, 75 Mo. 498. 
 
 3 Selden v. Vermilyea, 3 Comst. 336 ; AVilkinson v. Parry, 4 Russ. 272 
 Adams v. Paynter, 1 Coll. 532 ; Chalmers v. Bradley, 1 J. & W. 68 
 Swarez v. Pumpelly, 2 Sandf . Ch. 336 ; Wilson v. Towle, 36 N. H. 129 
 Bayley v. Mansell, 4 Madd. 226; Winthrop v. Att. Gen., 128 Mass. 258. 
 
 * TVhelan v. Reilly, 3 TV. Va. 597. The testator may authorize the 
 trustee appointed by him to appoint his successor by -will. Abbott, Pet'r, 
 55 Me. 580. While the settlor may make such provisions as he may think 
 best for filling vacancies, as a general proposition, yet it has been held that 
 a power reserved to an assignor in a deed of trust for creditors, to appoint 
 new trustees to fill vacancies occurring in the board, was void as inter- 
 fering with the rights of creditors. Planck v. Schermerhorn, 3 Barb. Ch. 
 644 ; Robins v. Embry, 1 Sm. & M. Ch. 207. 
 
 (a) See infra, § 408. A power power of appointment, see In re 
 
 in the nature of a trust, or a trust Radcliffe, [1892] 1 Ch. 227. 
 coupled with a duty, cannot be re- The question whether a power 
 
 leased ; but this rule does not apply of appointment has been executed, 
 
 to the release of a power not coupled is determined by the law of the 
 
 with a duty. In re Somes, [1896] donor's domicil. Cotting v. De 
 
 1 Ch. 250. As to the release of a Sartiges, 17 R. L 668. 
 432
 
 CHAP. IX.] FORM OF POWER FOR NEW APPOINTMENT. [§ 288. 
 
 tory provision,^ or of a failure on the part of the remaining 
 trustees to perform the duty of filling the vacancy, in which 
 case equity will interfere.^ The power to appoint new trus- 
 tees in place of the original ones can only be given by the 
 author and creator of the trust. For, in cases where courts 
 are called upon to appoint trustees, authority to appoint 
 successors will not be given, but recourse must be had to the 
 courts toties quoties.^(a) There is, however, an exception to 
 this rule in case of charitable trusts ; for, in such cases, to 
 save costs, and for convenience, courts of efjuity will not only 
 appoint new trustees to fill vacancies, but they will sanction 
 a scheme for the administration of the charity, which pro- 
 vides for the appointment and succession of trustees without 
 a continual recourse to legal proceedings.^ 
 
 § 288. Every well-drawn instrument, creating trusts in- 
 tended to continue for any considerable time, should contain 
 authority and power for any of the trustees to relinquish the 
 trust, as well as provisions for filling vacancies occasioned 
 by resignation, death, or incapacity. Such provisions save 
 the cost and trouble of constant applications to courts. In 
 framing these powers, great care should be taken to provide 
 for every possible contingency in which a resignation or new 
 appointment may become convenient or necessary. The 
 power should clearly express the cases in which new trustees 
 may be appointed, and embrace every event which can render 
 
 1 Colder v. Bressler, 105 111. 419. 
 
 2 Wilson V. Towle, 36 N. H. 129 ; Oglander v. Oglander, 2 De G. & 
 Sm. 381 ; Holder v. Durbin, 11 Beav. 594 ; Bowles v. Weeks, 14 Sim. 591; 
 Bayley r. Mansell, 4 Madd. 226; Southwell i-. Ward, Taml. 314. A differ- 
 ent practice was followed in Joyce v. Joyce, 2 Moll. 276 ; Sampayo /•. 
 Gould, 12 Sim. 426, and White v. White, 5 Beav. 221 ; but these cases 
 are not authorities now. See Brown v. Brown, 3 Y. & C. 395. 
 
 8 Att. Gen. v. Winchelsea, 3 Bro. Ch. 373- Att. Gen. v. Shore, 1 M. 
 & Cr. 394 ; 12 Sim. 426. 
 
 (n) By the New York statute, a dies or retires. Royce v. Adams, 
 
 successor maybe appointed by the 123 X. Y. 402; 57 Ilun, 415. 
 court when one of several trustees 
 
 VOL. I —28 433
 
 § 288.] FORM OF POWER FOR NEW APPOINTMENT. [CHAP. IX. 
 
 such an appointment necessary or desirable, as the death of 
 all, any one, or more of the original or substituted trustees, 
 their absence from the country or State, their wish to resign, 
 their original refusal to accept, and their future incapacity 
 or unfitness to discharge the duties ; the instrument should 
 also point out clearly and by whom and in what manner the 
 new appointments are to be made. Such provisions are 
 extremely convenient, and save much perplexity, expense, 
 and trouble ; and where a settlement is to be drawn up under 
 articles, by the direction of the court, it will order such pro- 
 visions to be inserted as are just and reasonable^ Where it 
 
 1 Lindow v. Fleetwood, 6 Sim. 152; Brewster v. Angell, 1 J. & W. 
 628; Sampayo v. Gould, 12 Sira. 426; Belmout v. O'Brien, 2 Kern. 394. 
 The following form is approved by both Mr. Lewin and ]\Ir. Hill as a 
 proper power for the appointment of new trustees : — 
 
 " Provided always, and it is hereby further declared, that if the trustees 
 hereby appointed, or any of them, or any future trustees or trustee hereof, 
 shall die (either before or after their or his acceptance of the trusts 
 thereof), go to reside abroad, desire to be discharged from, renounce, 
 decline, or become incapable or unfit to act in the trusts of these presents, 
 while the same trusts or any of them shall be subsisting, then, and in 
 every or any such cases, and so often as the same shall happen, it shall be 
 lawful for the said {the cestuis que trust lifany'] for life), or the survivors of 
 tliem, by any writing or writings, under their, his, or her hands or hand, 
 attested by two or more witnesses, and after the decease of such survivor, 
 then for the surviving or continuing trustees or trustee hereof, or the 
 executors or administrators of the then last acting trustee (whether such 
 surviving trustees or trustee, or executors or administrators, respectively, 
 shall be willing to act in other respects or not), by any writing or writings, 
 imder their or his hands or hand, attested by two or more witnesses, to 
 nominate and substitute any person or persons to be trustee or trustees 
 hereof in the place of the trustee or trustees so dying, going to reside 
 abroad, desiring to be discharged, renouncing, declining, or becoming in- 
 capable or unfit to act as aforesaid. And that, so often as any new trus- 
 tee or trustees hereof shall be appointed as aforesaid, all the hereditaments, 
 &c., which shall, for the time being, be holden upon the trusts hereof, shall 
 be thereupon conveyed, assigned, and transferred respectively, in such 
 manner that the same may become legally and eifectually vested in the 
 acting trustees hereof for the time being, to and for the same uses, and 
 upon the same trusts, and with and subject to the same powers and pro- 
 visions as are herein declared, and contained of and concerning the same 
 hereditaments and premises respectively, or such of the same uses, trusts, 
 434
 
 CHAP. IX.] FORM OF POWER FOR NEW APPOINTMENT. [§ 288. 
 
 is necessary to act under the powers thus given in the instru- 
 ment of trust, it is of the utmost consc<iucncc that there 
 should be an exact compliance with the power and authority 
 as given, (a) For if the circumstances do not justify or 
 demand a new ap})ointment, as contemjilatcd in the instru- 
 ment of trust, or if there is any irregularity as to the persons 
 by whom the new appointment is made, or as to the manner 
 in which it is made, the retiring trustee will still be liable 
 for any breaches of trust which may be committed, and the 
 new trustee will be incapable of exercising any legal authority 
 over the trust property, and will be a trustee only de son 
 tort, if he interfere; and any purchaser of the trust property 
 
 powers, and provisions as shall then be subsisting or incapable of taking 
 effect. 
 
 " And that every new trustee, to be from time to time appointed as 
 aforesaid, shall henceforth be competent in all things to act in the execu- 
 tion of the trusts hereof, as fully and effectually, and with all the same 
 powers and authorities to all purposes whatsoever, as if he had hereby 
 been originally appointed a trustee in the place of the trustee to whom he 
 shall, whether immediately or otherwise, succeed." 
 
 (a) In general, what is done Balch, 154 Mass. 318 ; Emmons r. 
 
 under a power of appointment is Shaw, 171 Mass. 410. An appointee 
 
 to be referred to the instrument by by will has no rights until the will 
 
 which the power is created, and is proved ; generally appointments 
 
 operates as a disposition of the es- by will are intended to speak from 
 
 tate of the donor. Heath r. With- the death of the testator, and not 
 
 ington, 6 Cush. 497; Osgood v. to leave any intervening time dur- 
 
 Bliss, 141 Mass. 474; ColUns v. ing which the fund is simply to ac- 
 
 "Wickwire, 102 Mass. 143 ; Dennis cumulate. Loring v. Mass. Ilorti- 
 
 i'. Holsapple, 148 Ind. 297. In cultural Society, 171 Mass. 401. 
 
 ^lassachusetts, when one has a gen- When a debtor, having a general 
 
 eral power of appointment and ex- power to appoint property which he 
 
 ecutes it by will, the property so never owned, exercises that power 
 
 appointed is regarded as assets of in favor of volunteers, the property 
 
 his estate, and his creditors are en- in their hands is burdened with his 
 
 titled to it in preference to his debts, if needed to satisfy them, 
 
 voluntary appointees; for the pur- Freeman v. Butters, 94 Va. 400. 
 
 poses of administration, the prop- An equitable estoppel does not ap- 
 
 erty should be administered by the ply in favor of a volunteer. Lovett 
 
 executor of the will of the party v. Lovett, [1698] 1 Ch. 82. 
 exercising the power. Oluey v. 
 
 435
 
 § 290.] CAKE IN APPOINTING NEW TRUSTEES. [CIIAP. IX. 
 
 may find his title utterly worthless. ^ The retiring trustee 
 should be careful not to part with the control of the fund 
 before the new trustee has been actually appointed and quali- 
 fied ; for if he transfer it into the name of the intended trus- 
 tee, and by some accident the appointment is not completed, 
 the old trustee still remains answerable for the fund.^ 
 
 § 289. These powers of appointing successors are fre- 
 quently matters of personal confidence reposed in the trus- 
 tees appointed by the settlor, and they are always matters of 
 general trust and confidence to be strictly executed, (a) The 
 court will not prevent the exercise of discretion given for 
 appointment, but will see that it is used to subserve the pur- 
 poses of its creation. 2 Being powers given to third persons 
 over the property of others, they are construed with great 
 strictness, and a great variety of decisions have been made 
 upon the various forms in which the power has been ex- 
 pressed. Questions have arisen : (1) As to the time, occa- 
 sion, or event when a new appointment may be made ; (2) As 
 to the person or persons by whom the appointment may be 
 made; (3) As to the persons who may be appointed; (4) As 
 to the number of persons who may be appointed ; (5) As to 
 the manner of making the new appointment. 
 
 § 290. It should always be carefully considered whether 
 the circumstances or events are such as the settlor intended 
 for the retirement of one or more of the trustees appointed 
 
 1 Adams v. Paynter, 1 Col. 532 ; Walker v. Brungard, 13 Sm. & M. 
 723. 
 
 2 Pearce v. Pearce, 22 Beav. 248. 
 8 Bailey v. Bailey, 2 Del. Ch. 95. 
 
 (a) The power of appointing new Under the Massachusetts statute, 
 trustees is fiduciary, and the donee a discretion to pay income is a part 
 of such power cannot appoint him- of the trust, and may be exercised 
 self, either solely or jointly with by a new trustee. Wemyss y. White, 
 others. In re Skeats' Settlement, 159 Mass. 484. 
 42 Ch. D. 522. In re Newen, [1894] 
 2 Ch. 297. 
 436
 
 CHAP. IX.] rowER of appointing successors. [§ 290. 
 
 by him, and the sul)stitution of new trustees; thus in a case 
 Avhcre tlie power provided that, " in case either of the trustees, 
 the said A, and B., shall happen to die, or desire to be dis- 
 charged from, or neglect or refuse or become incapable to act 
 in the trust, it shall be lawful for the survivor or survivors 
 of the trustees so acting, or the executors or administrators 
 of the last surviving trustee, by any writing, &c., to nomi- 
 nate a new trustee." Both the trustees declining to act, 
 they executed a conveyance to two other persons, as an 
 appointment of them as new trustees under the power ; and 
 it -was held that the power was not well executed, that the 
 word "survivor" referred to the trustee "continuing to act," 
 that it was the intention of the testator that in case of the 
 death, refusal, or incapacity of one of his trustees, the re- 
 maining one who had been named by him, and who was the 
 object of his confidence, should have the power of associating 
 with himself some other person, and that the event of both 
 declining at the same time was not provided for.^ (a) "Where 
 a settlement upon a chapel contained a power for the ap- 
 pointment of new trustees upon the desertion or removal of 
 any existing trustee. Lord Eldon held that the case of a trus- 
 tee, who left the trust on account of its being converted by 
 the other trustees to purposes different and distinct from the 
 intention of the settlor, was an event not provided for.^ And 
 
 1 Sharp V. Sharp, 2 B. & Ad. 404 ; Guion v. Pickett, 42 Miss. 77. 
 
 - Att. Gen. v. Pearson, 3 Mer. 412. In Morris v. Preston, 7 Ves. 547, 
 power was given to a husband and wife, or the survivor, with the consent 
 of the cotrustees or trustees, to appoint any new trustee or trustees, and 
 upon such appointment the surviving cotrustees should convey the estate, 
 so that the surviving trustee or trustees, and the new trustee or trustees, 
 might be jointly concerned in the trusts in the same manner as such sur- 
 viving trustee and the person so dying would have been in case he were 
 living. No new appointment was made till after the death of both the 
 original trustees. The new appointees having made a sale, the purchaser 
 objected to the title on the ground of the invalidity of their appointment 
 under the power; but the objection was waived without argument. ]Mr. 
 Sugden regrets that the opinion of the court was not taken. 2 Sugd. on 
 Powers, 529. lie has, however, never since acted on the doctrine. As 
 
 (a) See Tn re Wheeli'r, [1S9G] 1 Ch. 315; In re Stamford, id. 288. 
 
 437
 
 § 291.] WHEN THE POWER MAY BE EXERCISED. [CHAP. IX. 
 
 SO where cestuis que trust were to appoint a trustee upon the 
 refusal or neglect of the others to act, it was held that they 
 could not appoint upon the death of one of them.^ But gen- 
 erally where the power to appoint new trustees is given to 
 the survivor of several trustees, it may be legally exercised 
 by the continuing trustee upon the resignation or refusal of 
 the others to act.^ (a) 
 
 § 291, In some earlier cases, it was held that where a 
 power was given to the surviving trustee or trustees to ap- 
 point new trustees in case of the death of either of their co- 
 trustees, it did not authorize an appointment to fill a vacancy 
 caused by the death of trustees during the lifetime of the tes- 
 tator, upon the ground that persons dying in the lifetime of 
 the testator had never filled the character of trustees so as to 
 come within the terms of the power ; ^ but these are overruled 
 by the later cases, and it may be considered as settled that 
 the surviving trustee or trustees may fill vacancies caused by 
 the death of persons nominated by the testator, whether they 
 die in his lifetime or afterwards.* (h) So if the continuing 
 trustee or trustees are to appoint upon the refusing or declin- 
 ing of any of the original trustees, they may appoint upon 
 
 where a similar power was given, to a tenant for life, of appointing new 
 trustees, one trustee died and the other became bankrupt, and it was ob- 
 jected that the power of appointment was gone, Sir Edward Sugden 
 ruled to the contrary. lie Roche, 1 Conn. & Laws, 306 ; 2 Dr. & War. 
 287. 
 
 1 Guion V. Pickett, 42 INIiss. 77. 
 
 2 Sharp V. Sharp, 2 B. & Ad. 405; Eaton v. Smith, 2 Beav. 236; Travis 
 V. lUingworth, 2 Dr. & Sm. 344; Cooke v. Crawford, 13 Sim. 91; Hawkins 
 V. Kemp, 3 East, 410. 
 
 8 Walsh V. Gladstone, 14 Sim. 5; Winter v. Rudge, 1.5 Sim. 576. 
 4 Lonsdale v. Beckett, 4 De G. & Sm. 73; In re Hadley's Trust, 5 De 
 G. & Sm. 67 ; 9 Eng. L. & Eq. 67 ; Noble v. Meymott, 14 Beav. 477. 
 
 (a) Under § 31 of the English nal will. In re Parker's Trusts, 
 
 Conveyancing Act of 1881, the sole [1894] 1 Ch. 707; Nicholson v. 
 
 surviving trustee of a will cannot Field, [1893] 2 Ch. 511. 
 by will continue the trust by ap- (i) See In re Scott, [1891] 1 Ch. 
 
 pointing new trustees of the origi- 298, 303. 
 438
 
 CHAP. IX.] WHEN THE POWER MAY BE EXERCISED. [§ 292. 
 
 the disclaimer of any one or more ; ^ and so a payment of the 
 truat fund into court, under an order or permission to that 
 cllect, is a refmiiKj or declining by the trustee that authorizes 
 the exercise of the powcr.^ 
 
 § 292. If the settlement provides that a new appointment 
 may be made on either of the trustees becoming unfit, the 
 power may be exercised if one of them becomes bankrupt ;^ 
 but if the word is " incapable " without the word " unfit," a new 
 appointment cannot be made, for the word " incapable " means 
 personal incapacity and not pecuniary embarrassment,^ and 
 a bankrupt who had some time before obtained a first-class 
 certificate of discharge was not regarded as coming within 
 the term " unfit. " ^ But where a trustee of property in London 
 had been domiciled in New York for twenty years, he was 
 declared incapable without the meaning of the word.^ Where 
 a power declared that, " if the trustees were not deemed 
 suitable and sufficient to act as trustees by the cestui que trust, 
 he might remove them, it was held to be a matter of discre- 
 tion in the beneficiary to remove the trustees or not."" 
 
 1 Re Roche, 1 Conn. & ]>aws, 306 ; Walsh v. Gladstone, 14 Sim. 2 ; 
 Mitchell V. Nixon, 1 Ir. Eq. 155 ; Cook v. Ingoldsby, 2 Ir. Eq. 375; Travis 
 V. Illingworth, 2 Dr. & Sm. 344. 
 
 2 Re William's Settlement, 4 K. & J. 87. 
 
 8 In re Roche, 1 Conn. & Laws. 308; 2 Dr. & War. 287. 
 
 4 Re Watt's Settlement, 9 Hare, 106; Turner v. Maule, 5 Eng. L. & 
 Eq. 222 ; 15 Jur. 761. In re Bignold's Settlement, L. R. 7 Ch. 223 ; Re 
 Blanchard, 3 De G., F. & J. 131. A statute in New York provides that 
 aduiinistration, &c., shall not be granted to any person who shall be judged 
 incompetent by the surrogate to execute the duties of the trust by reason of 
 drunkenness, improvidence, or want of understanding. Under this statute 
 it was held that mere moral turpitude does not per se disqualify, but that 
 professional gambling was such evidence of improvidence as prima facie to 
 disqualify. Coope v. Lowerre, 1 Barb. Ch. 45; McMahon v. Harrison, 
 2 Seld. 443. 
 
 6 Re Bridgman, 1 Dr. & Sm. 164. 
 
 « Mennard r. Welford, 1 Sm. & Gif. 426. The opposite doctrine was 
 previously held in Withington v. Withington, 16 Sim. 104 ; O'Reilly v. 
 Alderson, 8 Hare, 101. 
 
 "> Walker r. Brungard, 13 Sm. & Mar. 758. 
 
 439
 
 § 294.] BY WHOM THE rowEii may be exercised, [chap. IX. 
 
 § 293. Where a suit is already pending in court for the 
 administration of the trust, the donees of the power to ap- 
 point cannot exercise it without first obtaining the court's 
 approval of the person proposed.^ When it is desired to 
 change the trustees during the pendency of a suit, a motion 
 must be made, and such motion is referred to a master to 
 report upon the person proposed. The master is to regard 
 the power of appointment ; but he is not bound to approve 
 the proposed person. ^ If an appointment is made, however, 
 by the old trustees, it is not contempt, nor is it altogether 
 void ; but it puts the burden upon those making the appoint- 
 ment of proving, by the strictest evidence, that it was just 
 and proper. If they fail in such proof, the act will be de- 
 clared null and void.^ So if the trustee or other person 
 having power to appoint a new trustee is a lunatic, the court 
 must appoint.^ 
 
 § 294. It will at once be seen that the power of appointing 
 other trustees can be exercised only by those to whom it is 
 expressly given. Therefore, if the power is not given to any 
 one, new trustees can be appointed only by the court, ^except 
 where, as in England, statutory provisions may change this 
 rule.^ So if the power be given to particular persons by 
 name, without saying more, or adding words of survivorship, 
 it must be exercised jointly, and upon the death of one of 
 them the power will be gone.'^ But if a power be given to a 
 
 1 Millard v. Eyre, 2 Ves. Jr. 94; Webb v. Shaftesbury, 7 Ves. 480; 
 Peatfield v. Benn, 17 Beav. 552 ; Kennedy r. Turnley, G Ir. Eq. 399; Att. 
 
 Gen. V. Clack, 1 Beav. 467; Middleton i'. Reay, 7 Hare, 106; v. 
 
 Roberts, IJ. & W. 251. 
 
 2 Webb ('. Shaftesbury, 7 Ves. 487 ; Middleton v. Reay, 7 Hare, 106. 
 
 3 Cape V. Bent, 3 Hare, 249; Att. Gen. i'. Clack, 1 Beav. 467; Baker 
 V. Lee, 8 H. L. Ca. 495. 
 
 4 In re Sparrow, 1 L. R. 5 Ch. 662 ; In re White, L. R. 5 Ch. 698; 
 In re Cuming, id. 72; In re Heaphy, 18 W. R. 1070; In re Nicholl, id. 
 416. 
 
 5 Wilson V. Towle, 36 N. H. 129 ; Pierce v. Weaver, 65 Tex. 44, citing 
 the text. 
 
 6 Act 44 and 45 Vict. c. 41. 
 
 ' Co. Litt. 113 a; 1 Sugd. Row. 141. 
 440
 
 CHAP. IX.] BY WHOM THE TOWER MAY BE EXERCISED. [§ 294. 
 
 class consisting of several persons, as to "my trustees," "my 
 sons," or "my brothers," and not to individuals by their 
 proper names, the authority will exist in the class, so long 
 as the plural number remains, although it may have been 
 reduced in number by the death or resignation of some ; ^ 
 and where a {)o\ver is given to "my executors" as a class, it 
 may be exercised by a single surviving executor. ^ A power 
 to be exercised by the survivor of two persons cannot be 
 executed by the one dying first, ^ nor even by the two acting 
 together during the lives of both.* So a power given to the 
 surviving or continuing trustee to appoint a cotrustee, if 
 either of the two decline to act, docs not authorize an ap- 
 pointment if loth decline.^ So the power of appointment 
 cannot be executed by heirs^ personal representatives^ or as- 
 siyns of any trustee, unless the authority is expressly given 
 in the instrument of trust. *" In these, as in all other cases, 
 the authority will be strictly confined to those persons who 
 answer the precise description. Thus a power given to a 
 trustee, his heirs, executors, or administrators, caimot be 
 executed by a devisee or assignee of the trustee.' It is, 
 however, well established, that a power given to a surviving 
 trustee may be executed by a continuirig or acting trustee, 
 although a cotrustee who disclaimed is still living.^ 
 
 1 Gartland v. Mayott, 2 Vern. 105; Eq. Cas. Ab. 202 ; 2 Freem. 105; 
 Dyer, 177 a; Co. Litt. 112 b; Byam v. Byam, 10 Beav. 58; Belmont v. 
 O'Brien, 2 Kern. 391; 1 Sugd. Pow. 144; McKim v. Handy, 4 Md. Ch. 
 230. 
 
 2 1 Sugd. Pow. 244; Davoue r. Fanning, 2 Johns. Ch. 252. 
 8 Bishop of Oxford v. Leighton, 2 Vern. 37G. 
 
 •» McAdam i: Logan, 3 P.ro. Ch. 320. 
 
 6 Sharp V. Sharp, 2 B. & Ad. 405. 
 
 « Bradford v. Belfield, 2 Sim. 264 ; Eaton v. Smith, 2 Beav. 236 ; Da- 
 voue r. Fanning. 2 Johns. Ch. 252 ; Titley v. Wolstenholme, 7 Beav. 424; 
 Granville v. McNeale, 7 Hare, 15G ; Hall r. May, 3 Kay & J. 5S5; Cooke 
 V. Crawford, 13 Sim. 91. 
 
 •> Bradford r. Belfield, 2 Sim. 2G4 ; Cole v. Wade, 16 Ves. 47 ; Cape v. 
 Bent, 3 Hare, 245 ; Ackleston i'. Heap, 1 De G. & Sm. 640 ; McKim v. 
 Handy, 4 Md. Ch. 230; Mortimer v. Ireland, 6 Hare, 196. 
 
 8 Lane ». Debenham, 11 Hare, 188 ; Eaton v. Smith, 2 Beav. 23G; 
 Sharp V. Sharp, 2 B. & A. 405. 
 
 441
 
 § 296.] BY WHOM THE POWER MAY BE EXERCISED. [CHAP. IX. 
 
 § 295. The number of parties undertaking to execute a 
 power must come within the exact description given of the 
 number of those who are to execute it ; thus, if a power is 
 given to be exercised by a certain specified number, or when 
 they are reduced to a certain number, it cannot be exercised 
 by a less number, and is gone if not exercised before the 
 number is reduced below the number which is named for its 
 execution.^ (a) But the power maybe executed before the 
 trustees are reduced to the lowest number specified, as where 
 a conveyance to twenty-five trustees for a chapel directed that 
 when, by death or otherwise, the number should be reduced 
 to fifteen, a majority of those remaining should make up the 
 number to twenty-five. The number was reduced to seven- 
 teen; and twelve, the others dissenting, elected eight new 
 trustees, and it was held a good appointment under the 
 power. '-^ 
 
 § 296. A married woman may exercise the power of ap- 
 pointing new trustees, if such power is expressly given to 
 her, as she may exercise any other power given to her in 
 an instrument of trust; ^(5) and she may appoint her hus- 
 band trustee;* but an infant cannot exercise such power 
 unless it is simply collateral.^ The power may be given to 
 a firm, their agents and assigns,^ but not to a court that has 
 
 1 Att. Gen. v. Floyer, 2 Vern. 748 ; Att. Gen. v. Litchfield, 5 Ves. 825. 
 
 2 Dupleix V. Roe, 1 Anst. 86. 
 8 Ante, § 49. 
 
 4 Tweedy v. Urquhart, 30 Ga. 446. 
 
 6 Ante, § 52. 
 
 6 Leggett V. Grimmett, 36 Ark. 498. 
 
 (a) See In re Lee.s' Settlement to take effect even if the wife does 
 
 Trusts, [1896] 2 Ch. 508. not appoint, and in the particular 
 
 (h) Under a testamentary gift case the wife's release of her life's 
 by a husband to his wife of interest was held not to entitle her 
 property for life, with a power to absolutely to the property. In re 
 appoint such property among a Brierley, 43 Ch. D. 36. A corn- 
 class, and also of the residue of his plete power of disposal given by a 
 property to her, the residuary gift man's will by his widow is not 
 does not prevent the implication limited by his verbal directions, 
 from the power of a gift to the class McFadin v. Catron, 120 Mo. 252. 
 442
 
 CHAP. IX.] COURTS WILL NOT INTERFERE. [§ 297. 
 
 no authority by law to act in the appointment of trustees. 
 A grantor cannot confer new powers on a court though it 
 may on the judge as an individual.^ But if the court is one 
 that by law may act in the appointment of trustees, the 
 selection of the grantor will be eHective.^ 
 
 § 297. The appointment may be by parol unless the power 
 otherwise })rovides.* Where the appointment of new trus- 
 tees is given to the discretion of the acting trustees, courts 
 of equity will not interfere to control the exercise of the dis- 
 cretion if the old trustees act in good faith,^ and if the ad- 
 ministration of the trust is not already in the hands of oi 
 before the court by a pending suit.^ Thus the old trustees 
 in a case for the exercise of their discretion may appoint 
 any suitable person. The inquiry in such cases is not 
 whether the person proposed is the most suitable, but whether 
 he is suitable.^ It is generally the duty, however, of trus- 
 
 1 Leman v. Sherman, 117 111. 657; 18 Brad. (111.) 368. 
 
 2 Morrison v. Kelly, 22 111. 610. 
 
 8 Leggett V. Grirnmett, 30 Ark. 498. 
 
 * Bowditch V. Bannelos, 1 Gray, 220; Hodgson's Settlement, 9 Ilare, 
 118. In Bowditch v. Bannelos, above cited, Ch. J. Shaw said : " But 
 when we say that she (the cestui que trust) had power at her pleasure to 
 appoint, we do not mean to say that this was an arbitrary power to ap- 
 point a person unfit or unsuitable to execute such a trust, as a minor, an 
 idiot, a pauper, or person incapable of performing the duties. It must be 
 a person of full age, sufiicient mental and legal capacity, and in all respects 
 capable of performing the required duties. In case of trust property of 
 real and personal estate, we are not prepared to say whether an alien, not 
 naturalized, and not capable by law to hold real estate, would or would 
 not be a suitable or legal appointment "We think the power was not ex- 
 hausted by the appointment of tlie first substitute, but that the same power 
 existed, on every resignation, to appoint a new trustee, pursuant to the 
 original trusts ; but that this power, by necessary implication, was limited 
 to the appointment of a person legally capable of executing it." Whetlier 
 the nomination of her husband, on account of the conjugal relation, would 
 have been incompatible with the scope of the whole instrument, and would 
 be a valid objection, or whether the fact that another appointee was a for- 
 eigner having no domicil in the United States, an alien not naturalized, 
 would be a valid objection, the court did not decide, because the nomina- 
 tions were withdrawn. 
 
 6 Ante, §293. « Ante, § 278. 
 
 443
 
 § 297.] COURTS WILL NOT INTERFERE. [CHAP. IX. 
 
 tees to appoint new trustees, who are agreeable to the cestuis 
 que trust, and who would administer the fund for their in- 
 terest; to this end it is generally the duty of the trustees to 
 consult the cestuis que trust as to the appointment.^ And a 
 new appointee ought to consult the cestuis que trust before 
 accepting the office.^ An appointment for the mere purpose 
 of having a particular solicitor employed in the management 
 of the trust ought not to be allowed.^ Generally, the new 
 trustees appointed under a power should be amenable to the 
 jurisdiction of the court; but where the cestui que trust re- 
 sides abroad, it may be proper to appoint trustees in the 
 same jurisdiction with the beneficiary.^ Though if the 
 court is called upon to exercise the power, it will not ap- 
 point trustees out of its jurisdiction.^ Nor is the appoint- 
 ment of one of the cestuis que trust proper, as each of the 
 cestuis que trust has a right to a disinterested and impartial 
 trustee.^ This rule probably only affects the parties to the 
 trust; for if a cestui que trust should be appointed, and 
 should sell the estate under a power of sale, the purchaser 
 would be protected.'^ Cestuis que trust are not absolutely 
 incapacitated to take the trusts, and courts themselves some- 
 times appoint them;^ but it is not generally desirable. So, 
 near relationship is not a disqualification; but it is almost 
 always better to have a capable person not intimately con- 
 nected with the cestuis que trust.^ Nor should the donee of a 
 
 1 O'Reilly r. Alderson, 8 Hare, 101 ; Marshall v. SladdeD, 7 Hare, 428; 
 Peatfield v. Benn, 17 Beav. 522; Nagle's Est., 52 Penn. St. 154. 
 
 2 Ibid. 
 
 8 Marshall v. Sladden, 7 Hare, 428. 
 
 * Meinertzhagen v. Davis, 1 Col. C. C. 335 ; Ex parte Tunno, 1 Bail. 
 Eq. 395. 
 
 6 Guibert's Trust, 13 Eng. L. & Eq. 372. But see Ex parte Tunno, 1 
 Bail. Eq. 395. 
 
 ^ Passingham v. Sherborne, 9 Beav. 424. 
 
 ^ Reid v. Reid, 30 Beav. 388. 
 
 8 Ex parte Glutton, 17 Jur. 988 ; 21 Eng. L. & Eq. 186 ; Ex parte 
 Couybeare's Settlement, 1 W. R. 458 ; Make v. Norrie, 21 Hun (N. Y.), 128. 
 
 3 Wilding V. Bolder, 21 Beav. 222, where the husband of a cestui que 
 trust was appointed trustee, the court required him to undertake to apply 
 
 444
 
 CHAP. IX.] COURTS WILL NOT INTEKFERE. [§ 297. 
 
 power to appoint nominate himself, for trustees cannot even 
 I)ay over tlic assets to one of their own number.^ It is said, 
 however, that if a trust with power of appointment is com- 
 mitted to trustees and the survivor of them, his executors or 
 administrators, and the trustees all die, the appointment is 
 in the executor of the survivor; and, as the instrument of 
 trust declares him to be a proper person to execute the trust, 
 he may appoint himself under the power. Mr. Lewin, how- 
 ever, says that " the exercise of every power should be regu- 
 lated by the circumstances as they stand at the time, and 
 that the limitation to executors cannot dispense with the 
 discretion to be applied afterwards. " ^ 
 
 for the appointment of a new trustee in case he became sole trustee, 18 
 W. R. 416; 21 L. T. (n. s.), 781. 
 
 1 V. Walker, 5 Russ. 7 ; Stickney v. Sewell, 1 M. & C. 14 ; West- 
 
 over r. Chapman, 1 Col. C. C. 177. 
 
 ^ Lewiu on Trusts, 472 (5th Lond. ed.). 
 
 445
 
 § 298.] ESTATE OF THE TEUSTEE. [CHAP. X. 
 
 CHAPTER X. 
 
 NATURE, EXTENT, AND DURATION OP THE ESTATE TAKEN BY 
 
 TRUSTEES. 
 
 § 298. Where trustees take and hold no estate, although an express gift is made 
 to them. Statute of uses. 
 
 § 299. Effect of the statute of uses upon conveyancing in the several States. 
 
 § 300. Effect of the statute in the rise of trusts. 
 §§ 301, 302. Rules of construction which gave rise to trusts. 
 
 § 303. The word " seized." 
 
 § 304. The primary use must be in the trustee to raise a trust. 
 
 §§ 30,5, 306. Personal property not within the statute. 
 §§ 307, 308. Where the statute executes trusts as uses, and where it does not. 
 
 § 309. Where a charge upon an estate will vest an estate in trustees, aud 
 
 where not. 
 
 § 310. Where the trust is for the sole use of a married woman. 
 
 § 311. Trusts of personalty are not executed by the statute. 
 
 § 312. The statute only executes the exact estate given to the trustee ; but the 
 trustee may take an estate commensurate with the purposes of the 
 trust where it is unexecuted by the statute. Rules. 
 §§ 313, 314. Courts may imply an estate in the trustee where none is given. 
 §§ 315, 316. May enlarge the estate of the trustee for the purposes of the trust. 
 
 § 317. Illustrations, explanations, and modifications of the rule. 
 §§ 318, 319. Rule in respect to personal estate. 
 
 § 320. Distinctions between deeds and wills in England and the United States. 
 
 § 298. It may happen that although words of express trust 
 are used in the grant or bequest of an estate to a trustee, 
 yet no estate vests or remains in the trustee. This may be 
 because only a poiver is given and no estate, as where a tes- 
 tator simply directs his executor to sell certain property 
 and apply the proceeds to certain purposes instead of grant- 
 ing the property to the executor or trustee to sell, &c., or 
 because the statute of uses executes the legal estate at once in 
 the cestui que trust.^ Thus, if A. grants or bequeaths land 
 to B. and his heirs, in trust for C. and his heirs, the trustee, 
 B., will take nothing in the land, but the legal title, as well 
 
 1 West V. Fitz, 109 111. 425. 
 446
 
 CIIAl'. X.] ESTATE OF THE TRUSTEE. [§ 298. 
 
 as the beneficial use, will vest immediately in C. ;^ for the 
 statute of uses, 2 so called, executes the possession and the 
 legal title in the same person to whom the beneficial interest 
 is given. As stated in previous sections,^ a large part of the 
 land in England was at one time held to uses. The legal 
 title was in one person, but upon the trust and confidence 
 that such person would apply it to the use of some person 
 named, or that such legal owner would permit some other 
 person to have the possession, use, and income of the estate. 
 This system, originating partly in fraud of the law, and 
 partly in the necessities and convenience of the subject, be- 
 came at last the source of great aljuscs. To remedy these 
 abuses, the statute of uses was enacted.^ This statute exe- 
 
 1 Austin V. Taylor, 1 Eden, 3G1 ; Williams v. Waters, 14 M. & W. 106; 
 Robinson v. Grey, 9 East, 1; Chapman v. Blissett, Cas. t. Talbot, 150; 
 Broughton v. Langley, 2 Salk. 150 ; 2 Ld. Raym. 873 ; Thatcher v. Omans, 
 3 Pick. 521 ; Upham v. Varney, 15 N. H. 466 ; Kinch v. Ward, 2 Sim. & 
 St. 409, and see Doe v. Biggs, 2 Taunt. 109 ; Shapland v. Smith, 1 Bro. 
 Ch. 75, and notes ; Boyer v. Cockerell, 3 Kan. 282 ; Witham v. Brooner, 
 63 111. 344. 
 
 2 27 Henry VITI. c. 10, § 1. « Ante, §§ 3, 4. 
 
 * Ante, §§ 5, 6, 7. And see the preamble of the statute. The first 
 section of the statute was as follows : " That where any person or persons 
 stand or be seized, or at any time hereafter shall happen to be seized of 
 and in any honors, castles, manors, lands, tenements, rents, services, 
 reversions, remainders, or other hereditaments, to the use, confidence, or 
 trust of any other person or persons, or of any body politic, by reason of 
 any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, 
 will, or otherwise, by any manner of means, whatsoever it be; that in 
 every such case, all and every such person and persons, and bodies politic 
 that have or hereafter shall have any such use, confidence, or trust in fee- 
 simple, fee-tail, for term of life, or for years, or otherwise, or any use, con- 
 fidence, or trust in remainder or reverter, shall from henceforth stand and 
 be seized, deemed, and adjudged, in lawful seizin, estate, and possession, of 
 and in the same honors^ castles, manors, lands, tenements, rents, services, 
 reversions, remainders, and hereditaments, with their appurtenances, to all ■ 
 intents, constructions, and purposes, in the law of and in such like estates 
 as they had or shall have in use, trust, or confidence of or in the same; 
 and that the estate, title, right, and possession that was in such person or 
 persons that were or hereafter shall be seized of any lauds, tenements, or 
 hereditaments, to the use, confidence, or trust of any such person or per- 
 sons, or of any body politic, be from henceforth clearly deemed and ad- 
 
 447
 
 § 298.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 cutes the use by conveying the possession to the use, and 
 transferring the use into possession, thereby making the 
 cestui que use complete owner of the estate, as well at law as 
 in equity. It does not abolish the conveyance to uses, but 
 only annihilates the intervening estate, and turns the interest 
 of the cestui que use into a legal instead of an equitable 
 estate.^ A use^ a trust, and a confidence is one and the same 
 thing, and if an estate is conveyed to one person for the use 
 of, or upon a trust for, another, and nothing more is said, the 
 statute immediately transfers the legal estate to the use, and 
 no trust is created, although express words of trust are used.^ 
 So absolute is the statute that it will operate upon all con- 
 veyances in the words above stated, although it was the plain 
 intention of the settlor that the estate should vest and remain 
 in the first donee; for the intention of the citizen cannot 
 control express enactments of the legislature,^ or positive 
 rules of property, {a) 
 
 judged to be in him or them, that have, or hereafter shall have, such use, 
 confidence, or trust after such quality, manner, form, and condition as they 
 had before, in, or to the use, confidence, or trust that was in them." Saund. 
 on Uses, 70-82. 
 
 1 Eustace v. Seamen, Cro. Jac. 696 ; 2 Black. Com. 333, 338 ; Thatcher 
 V. Omans, 3 Pick. 529 ; Hutchins v. Heywood, 50 N. H. 495. 
 
 2 Terry v. Collier, 11 East, 377 ; Right v. Smith, 12 East, 454 ; Brough- 
 ton V. Langley, 2 Salk. 679 ; Ease v. Howard, Pr. Ch. 338, 345 ; Hamraer- 
 ston's Case, Dyer, 166a, note; Ramsay v. Marsh, 2 McCord, 2.52 ; Moore 
 V. Shultz, 13 Penn. St. 98 ; Jackson v. Fish, 10 Johns. 456 ; Parks v. Parks, 
 9 Paige, 107. 
 
 8 Carwardine v. Carwardine, 1 Eden, 36; Gregory v. Hender.son, 4 
 Taunt. 772. In this case the intent of the testator was loosely talked of, 
 but it was an active trust, as pointed out by Heath, J. Doe v. Collier, 
 
 (a) Where it appeared by two force immediately vest the legal es- 
 
 deeds that all parties intended that tate in the beneficiary and his heirs; 
 
 the grantee in each deed should take and that when the trust so ceased, 
 
 the legal estate in fee and in trust, it became the trustee's duty to con- 
 
 and not as feoffee or grantee to uses, vey on request the legal estate to 
 
 it was held that, -when the active the beneficiary and his heirs, or to 
 
 duties of the trust ceased with the his assigns. Dakin v. Savage, 172 
 
 discharge of the mortgage, the Mass. 23. See infra, § 520. 
 statute of uses did not of its own 
 448
 
 CHAP, x] STATUTE OF USES. [§ 299. 
 
 § 299. The statute of uses is in force in most of the United 
 States,^ but where the statute is not in force either by adop- 
 tion or by re-enactment, and even where it is expressly re- 
 pealed and a form of deed is enacted, a knowledge of the 
 law of uses is necessary in order to understand and apj)ly the 
 common forms of conveyance.^ The statute of uses, and the 
 doctrines it established, are so interwoven with the history of 
 every American State, and with the growth of its jurispru- 
 dence in regard to real estate, that the law of tenures is 
 necessarily interpreted in America by the precedents estab- 
 lished under the statute ;3 and in this branch of the law, as 
 in all others, it is impossible to obtain a clear perception of 
 its present state, w-ithout a full knowledge of the successive 
 stei)S by which the latest development has been reached. 
 The application of the statute has been very much modified 
 in many of the States, but the general idea is still acted 
 upon.* (a) Mr. Washburn remarks, that it is not a fair in- 
 
 11 East, 377; Shapland v. Smith, 1 Bro. Ch. 75; 1 Sugd. Yen. 309, 
 314. 
 
 1 4 Kent, Com. 299 ; 1 Green. Cru. tit. 11, Use, c. 3, § 3, note. 
 
 2 Walk. Am. Law, 311; Ilelfeu.steiue v. Garrard, 7 Ohio, 275; 2 
 Wa.«hb. on Real Prop. 152. 
 
 3 4 Kent, Com. 299-301. 
 
 ■* In Maine, a person may convey land by deed acknowledged and re- 
 corded. Rgv. Stat. 18.57, c. 73, § 1. And a deed may be any species of 
 conveyance, not plainly repugnant in terms, and necessary to give effect 
 
 (n) See IMorgan v. "Rogers, 79 Xumsen r. Lyon, S7^fd. 31 ; Fo.ster 
 
 F. R. 577; :\Iartin r. Fort, S3 id. v. Glover, 46 S. C. 522; Reeves v. 
 
 19; Speed v. St. Louis, &c. R. Rrayton, 36 S. C. 384; Jliras v. 
 
 Co., 86 id. 235; Carr v. Richard- Macklin (S. C), 30 S. E. 585; 
 
 son, l.'i7 Mass. 576; Cushing v. Holmes r. Pickett, 51 S. C. 271; 
 
 Spaul.liiic:, 161 id. 287; .'^uUivan r. :McKei)zie v. Sumnor. Ill X. C. 425; 
 
 Chambers. 19 R. I., 799; Bork v. Tliomp.son r. Conant. 52 Minn. 208; 
 
 Martin. 132 N. Y. 280; King v. Woodward v. Stubbs, 102 Ga. 187; 
 
 Townshend, 141 N. Y. 3.58; Dyett Myers v. Jackson, 135 Ind. 136; 
 
 V. Central Trust Co., 140 N. Y. 54; Henderson ;-. Adams, 15 Utah. 30 ; 
 
 Atkins r. Atkins, 70 Yt 565; Sil- Stoup r. Stoup, 140 Ind. 179: Corn- 
 
 verman v. Kristufek. 162 HI. 222; well r. Orton, 126 Mo. 355. 
 Hooper v. Feigner, ^0 Md. 262 ; 
 
 VOL. I. — 29 449
 
 § 299.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 ference that the doctrine of uses would be inapplicable in any 
 State whore they are not declared not to exist, either because 
 
 to the intention of the parties. Emery v. Chase, 5 Maine, 235. And the 
 statute of uses is in force. Shapleigh v. Pilsbury, 1 Maine, 271 ; Emery 
 V. Chase, 5 id. 232 ; Webster v. Cooper, 14 How. 496 ; Morden v. Chase, 
 32 Maine, 329. 
 
 In New Hampshire, the form in which lands may be conveyed is fixed 
 by statute. Rev. Stat. But tiiis does not exclude other known forms of 
 conveyance at common law, and the statute of uses is in full force. 
 Exeter v. Odiorue, 1 N. H. 232 ; Chamberlain v. Crane, id. 64 ; French 
 V. French, 3 id. 234; Upham v. Varney, 15 id. 462; Hayes v. Tabor, 
 41 id. 526; Bell v. Scammon, 15 id. 394; Pritchard v. Brown, 4 id. 397; 
 Dennett v. Dennett, 40 id. 498 ; Hutchins v. Heywood, 50 id. 496. 
 
 In Vermont, there is a similar legislation as to the form of conveyances ; 
 but Chief-Justice Redfield held that the P2nglish statute of uses was not 
 in force, for the reason that their court of equity could carry out the in- 
 tention of parties without the help of the statute. Gorham v. Daniels, 
 23 Vt. 600; Sherman v. Dodge, 28 id. 26. Mr. Justice Thompson, of the 
 United States court for the district, held the contrary. Soc. &c. v. Hart- 
 land, 2 Paine, C. C. 536. 
 
 In Massachusetts, a deed acknowledged and recorded conveys land 
 without any other ceremony. Gen. Stat. 1860, c. 89, § 1. The form of 
 deed in general use gives, grants, bargains, sells, and conveys, upon a con- 
 sideration, limiting the estate to the grantee and his heirs to their use. 
 These words prevent a resulting use in the grantor; and it is a convey- 
 ance at common law, since the grantee and the cestui que use is the same 
 person. But if, for any reason, it is necessary, in order to give effect to 
 the conveyance, to construe it as operating under the statute of uses, the 
 court will do so. Cox v. Edwards, 14 ]\lass. 492 ; Marshall v. Fish, 6 
 Mass. 24; Hunt u. Hunt, 14 Pick. 374; Wallis v. Wallis, 4 Mass. 135; 
 Pray v. Pierce, 7 Mass. 381 ; Russell v. Coffin, 8 Pick. 143 ; Blood v. 
 Blood, id. 80; Parker v. Nichols, 7 id. Ill; Gale v. Coburn, 18 id. 
 397; Brewer v. Hardy, 22 id. 376; Thatcher v. Omans, 3 id. 522 ; Norton 
 V. Leonard, 12 id. 157 ; Newhall v. Wheeler, 7 Mass. 189 ; Chapin v. 
 Univer. Soc, 8 Gray, 580; Baptist Soc. v. Hazen, 100 Mass. 322; Durant 
 V. Ritchie, 4 Mason, 45 ; Northampton Bank v. Whiting, 12 Mass. 104 ; 
 Johnson '.'. Johnson, 7 Allen, 197. 
 
 In Rhode Island, deeds of bargain and sale, lease and release, and 
 covenants to stand seized, are recognized by statute. Rev. Stat. (1857), 
 p. 335. And the statute of uses would seem to be in partial force. 
 1 Lomax, Dig. 188 ; Nightingale t-. Hidden, 7 R. I. 132. 
 
 In Connecticut, the act of acknowledging and recording a deed is held 
 equivalent to livery of seizin. Barrett v. French, 1 Conn. 354. But the 
 statute of uses is held to be part of its common law. Bacon v. Taylor, 
 
 450
 
 CIIAT. X.] STATUTE OF USES. [§ 299. 
 
 no case has arisen in tlio courts of the State to test the ques- 
 tion, or because a form of deed not known under the statute 
 
 Kirb. 368; Barrett v. French, 1 Conn. 354 ; Hryan v. Bradley, 10 Conn. 
 474. 
 
 In New York, previous to 1827, the English statute of uses was in full 
 force. Jack.son v. Myers, 3 Johns. 388; Jackson v. Fish, 10 id. 450; 
 Jackson i\ Root, 18 id. 79; Jackson v. Cary, 16 id. 302 ; Jackson v. 
 Dunsbagh, 1 Johns. Cas. 91 ; Jack.son v. Cadwell, 1 Cow. 022. After 
 that year, tiie rules of the common law were repealed ; all uses and trusts 
 were abolished, except such as were expressly authorized. Every interest 
 in land is declared to be a legal right, and cognizable in a court of law ex- 
 cept where it is otherwise provided. A conveyance by grant, assif/nmenl, 
 or devise is substituted for a conveyance to uses, and future interests in 
 lands may be conveyed by grant. 3 Rev. Stat. 15 (5th ed.) ; 4 Kent, 300. 
 It has, however, been determined that if laud is granted to one in fee in 
 trust for another,, the cestui que trust takes the estate absolutely, but sub- 
 ject, however, to such incumbrances as the trustee made upon the estate 
 at the time of the conveyance, as if the trustee should give back a mort- 
 gage for the purchase money, it would be held to be one transaction. Raw- 
 son V. Lanipman, 1 Seld. 456. Nor have these statutes any application to 
 securities by mortgage. King v. Merchants' Exchange Co., 1 Seld. 547. 
 
 In New Jersey, the statute of uses is substantially re-enacted. Den v. 
 Crawford, 3 Halst. 107; Prince v. Sisson, 13 N. J. 108. 
 
 In Pennsylvania, a statute declares all deeds in a prescribed form 
 equivalent to a feoffment with livery of seizin at common law. and the 
 statute of uses is also in full force. Opinion of the Judges, 3 Binn. 599 ; 
 Welt V. Franklin, 1 Binn. 502; Ashhurst v. Given, 5 Wat. & S. 323; 
 Sprague v. Woods, 4 id. 192; O'Kinson v. Patterson, 1 id. 395: Hurst 
 V. McNeil, 1 Wash. C. C. 70; Franciscus v. Reigart, 4 Watts, 118. In- 
 deed, at one time the Pennsylvania courts carried the application of the 
 statute to an unusual extent, and held that et/uitahle were converted into 
 legal estates in all cases except active trusts, and even then if the purposes 
 of the trust did not furnish a legitimate reason for not executing the trust 
 in the beneficiary. Kuhn w. Newman, 26 Penn. St. 227; Whichcote v. 
 Lyle, 28 id. 73 ; Bush's App., 33 id. 85 ; Kay v. Scates, 37 id. 31. Rut 
 these cases were overruled, and the law restored to its former condition, 
 in Barnett's App., 46 Penn. St. 392 ; Shankland's App., 47 id. 113 ; Earp's 
 App., 75 id. 119; Deibert's App., 78 id. 296. 
 
 In Delaware, the statute provides that lands may be transferred by 
 deed without livery, and that the legal estate shall accompany the use, 
 and pass with it. Rev. Code (1852), p. 206. 
 
 In ^Maryland, the English statute of uses is the foundation of their 
 conveyances, and their rules of construction of it are nearly similar to the 
 English rules. Lewis v. Beall, 4 Ilarr. & McH. 488 ; Mason u. Small- 
 
 451
 
 § 299.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 of uses may have been declared by the statute of a State suffi- 
 cient to convey lands. ^ It is true that Lord Hard wi eke is 
 
 wood, id. 484 ; Matthews v. Ward, 10 Gill & J. 443; Cheney v. Watkins, 
 1 Harr. & J. 527; West v. Biscoe, 6 id. 465; Calvert v. Eden, 2 ILirr. & 
 McII. 3;]1. 
 
 In Virginia, the statute of uses was a part of the colonial law; but it 
 was repealed in 1792. Afterwards, in 1819, and in Rev. Code (1849), 
 p. 502, a partial substitute was adopted, by which the possession was 
 transferred to the use only in cases of deeds of bargain and sale, lease and 
 release, and deeds operating by way of covenant to stand seized to uses. 
 If uses or trusts are raised by any other form of conveyance, as by devise, 
 they remain, as before the statute of Henry VIII., mere equitable estates, 
 not cognizable by courts of law. Bass v. Scott, 2 Leigh, 359; 1 Lomax, 
 Dig. 188; 2 Matt. Dig. 34; Rowletts v. Daniel, 4 Munf. 473 ; Tabb v. 
 Baird, 3 Call, 475; Duvall v. Bibb, id. 362. 
 
 In North Carolina, the statute is similar to the statute of Virginia, and 
 the statute of uses has nearly the same application. Rev. Code (1854), 
 p. 270; Den v. Hanks, 5 Ired. 30; Smith v. Lockabill, 76 N. C. 46.5. 
 
 In South Carolina, the statute of uses was re-enacted in terms. 2 Stat. 
 at Large, p. 467 ; Ramsay v. Marsh, 2 McCord, 252 ; Redfern v. Middle- 
 ton, Rice, 464; Kinsler v. Clark, 1 Rich. 170; Chancellor v. Windham, 
 id. 161 ; Laurens v. Jenney, 1 Spears, 356 ; McNish v. Guerard, 4 
 Strob. 74. 
 
 In Georgia, the form of deed in general use is that of bargain and 
 sale, which operates under the statute of uses. Adams v. Guerard, 29 
 Ga. 676. 
 
 In Florida, there is a statute similar to the statute of Virginia, and 
 the statute of uses is in partial force. Thompson's Dig., p. 178, § 4 ; 1 
 Lomax, Dig. 188. 
 
 In Alabama, the statute of uses is part of the law of the State. Ilorton 
 V. Sledge, 29 Ala. 478; You v. Flinn, 34 Ala. 411. 
 
 In Mississippi, there is a statute similar to the statute of Virginia. 
 How. & Hutch. Dig. p. 349. 
 
 In Louisiana, conveyances originated under the civil law, or the code 
 of France. 
 
 In Texas, a statute recognizes deeds of bargain and sale, which operate 
 under the statute of uses. 
 
 In Arkansas, the mode of conveyance is by deeds of bargain and sale, 
 and of course the statute of uses must be a part of their law. 
 
 In Tennessee, the statute of uses is not in force, though deeds good at 
 common law or under the statute of uses are valid to convey estates ; but 
 if uses are raised, they remain as before the statute of Henry VIII. 
 
 The statute of Kentucky is in nearly the same words as the statute of 
 
 * 2 Washburn on Real Property, 154. 
 
 452
 
 CHAP. X.] STATUTE OF USES. [§ 299. 
 
 reported to have said, that the statute of uses had no other 
 effect than to add at most three words to a conveyance ; * 
 Mr. Kent thinks this rather too stronj^ly expressed, and says 
 that the doctrine of the statute has insinuated itself deeply 
 and thoroughly into every branch of the jurisprudence of real 
 property. 2 It seems to have been the intention of the stat- 
 utes of the various States to supply the want of livery of 
 seizin, and to make all deeds, or other writings executed 
 with certain formalities, equivalent to the old feoffments; 
 therefore, any old and well-established rule of conveyancing 
 
 Virginia, and the statute of uses has the same application. Rev. Stat, 
 p. 279 (ed. 18G0). 
 
 In Ohio, the statute of uses was never in force, and if trusts or uses 
 are raised by the form of conveyance they remain unexecuted, and mere 
 equitable estates, cognizable only in courts of equity. Williams r. Pres- 
 byterian Church, 1 Ohio St. 497; lielfensteine r. Garrard, 7 Ham. 276; 
 Foster v. Denuison, 9 Ohio, 121; Walker, Am. Law, 124; Thompson v. 
 Gibson, 2 Ohio, 4:59. 
 
 In Indiana, the statute of uses is enacted in substance. Rev. Stat. 
 (1843) p. 447; Linville u. Golding, 11 Ind. 374; Nelson v. Davis, 35 
 Ind. 474. 
 
 In Illinois, the statute is very similar to the statute of Virginia. 2 Stat. 
 (1858) p. 959; Witham v. Brooner, G3 111. 344. 
 
 In Michigan, the laws are similar to the statutes of New York, by 
 which all uses and trusts are abolished. 2 Compt. Laws (1857), p. 824 ; 
 Ready r. Kearsley, 14 Mich. 228. 
 
 In Mis.souri, the statute of uses is re-enacted in substance. Rev. Stat. 
 (184.'.) p. 218; Guest v. Farley, 19 Miss. 147. 
 
 In Iowa, uses are recognized, and deeds may operate under the statute 
 of uses. Pierson v. Armstrong, 1 Iowa, 282. 
 
 In Wisconsin, the statute is very similar to the statute of New York, 
 and all uses and trusts are abolished except those specially provided for. 
 Rev. Stat. (18.J8) p. .529. 
 
 In Minnesota, deeds may be in form of bargain and sale, which oper- 
 ate \nider the statute. 
 
 In California, conveyances originated under the old Spanish law, and 
 probably the statute of uses has little or no influence upon tlie law of tlie 
 State 
 
 In Kansas, a conveyance to A. to the u.se of li. vests the estate at once 
 in B., by force of the statute. Bayer c. Cockerill, '•) Kan. 292. 
 
 1 Hopkins r. Hopkins, 1 Atk. 591. 
 
 2 4 Kent, Com. 301. 
 
 453
 
 § 300.] ESTATE OF THE TRUSTEE. [CIIAP. X. 
 
 ought not to be considered as abolished, in the absence of 
 express provisions to that effect. 
 
 § 300. The statute of uses at the time when it was passed 
 had an immense effect upon the tenures of the realm. Many 
 interests in land which had been merely equitable, and 
 cognizable only according to the rules of equity, became at 
 once legal interests, cognizable in courts of common law. 
 Many persons who were seized of estates to uses, and who 
 only could sue or be sued at law in relation to the same, 
 ceased at once to have any title either at law or equity. Al- 
 though it is probable that it was the intent of the statute to 
 convert all uses or trusts into legal estates,^ yet the conven- 
 ience to the subject of being able to keep the legal title to an 
 estate in one person, while the beneficial interest should be 
 in another, was too great to be given up altogether, and 
 courts of equity were astute in finding reasons to withdraw a 
 conveyance from the operation of the statute. ^ Three prin- 
 cipal reasons or rules of construction were laid down, where- 
 by conveyances were excepted from such operation: first, 
 where a use was limited upon a use; second, where a copy- 
 hold or leasehold estate, or personal property, was limited to 
 uses ; third, where such powers or duties were imposed with 
 the estate upon a donee to uses that it was necessary that he 
 should continue to hold the legal title in order to perform 
 his duty or execute the power. ^ In all of these three in- 
 
 1 1 Green. Cruise, tit. 12, c. 1, § 1. 
 
 2 Mr. Cruise thought that the .strict construction put upon the .statute 
 by the judges in a great measure defeated its effect. Id. Mr. Blackstone 
 is of a similar opinion. 2 Black. Com. 336. And Lord Mansfield, in 
 Goodright v. Wells, 2 Doug. 771, said that it was not the liberality of 
 courts of equity, but the absurd narrowness of courts of law, resting on 
 literal distinctions, which in a manner repealed the statute of uses, and 
 drove cestuis que trust into equity. 
 
 3 Hill on Trustees, 230. See § 785, a; Farr v. Gilreath, 23 S. C. 511 ; 
 Preachers' Aid Society v. England, 106 111. 129 (referring to the text). 
 Where an estate is conveyed to A. for the use of B., and nothing more is 
 said, the title is immediately vested in B. by the statute, even though ex- 
 press words of trust are used; but if certain duties are imposed on A., 
 such as collection of rents, making investments, &c., which require that 
 
 454
 
 ClIAI'. X.] CON «TK I CI ION OF THK STATUTE. [§ -jOl- 
 
 stances, courts both of law and equity held that the statute 
 did not execute the use, but that such use remained, as it 
 was before the statute, a mere eiiuitable interest to be admin- 
 istered in a court of equity. These uses, which the statute 
 did nut execute, were called trusts, and justify Mr. Cruise's 
 language that "a trust is a use not executt'd by the statute 
 of 27 Henry Vlll." Tlie statute may execute the usu in 
 regard to one party and not as to another in the same deed ; 
 for example, where land is conveyed to A. in trust fur B. for 
 life, contingent remainder to C, the statute may execute the 
 life estate in B., and still leave the fee in A. for the preser- 
 vation of the remainder.^ 
 
 § 301. The first two of these rules originated in a strict 
 construction of the technical words used in the statute, which 
 are, " where any person is seized of any lands or to the use 
 of another." If A. grants lands to B. for the use of C. for 
 the use of D., B. was said to be "seized " of the lands to the 
 use of C. ; and the statute immediately executed the use in 
 
 C. and gave him the legal title. But C. was said not to be 
 "seized " of lands to the use of D., but only of a use; there- 
 fore the use in C. for D. remained, as it was before the stat- 
 ute, unexecuted. 2 It remained, therefore, a mere equitable 
 estate or trust cognizable in a court of equity alone. Hence 
 the maxim that a use could not be limited on a use ; not that 
 such second use was void, but the statute did not execute it, 
 and it remained a mere equitable interest. Thus, if lands 
 come to A. and his heirs by fooffmont, grant, devise, or other 
 assurance, to the use of B. and his heirs, to the use of C. and 
 his heirs; or to the use of C. in fee or for life, with remain- 
 ders over; or to B. and his heirs in trust to permit C. and 
 
 D. to receive the rents, — in all these cases the statute exe- 
 
 he should keep the estate, the trust will be an active one, and the statute 
 •will not execute it. Kellogfj v. Hale, lOS 111. 164; Howard r. Ilender.son, 
 18 S. C. 189; Hooberry v. Harding, 10 Lea (Tenn.) :}n2 ; Henderson r. 
 Hill. 9 Lea (Tenn.), 2."). 
 
 1 Howard v. Henderson, 18 S. C. 192 ; Willimau v. Holmes, 4 Rich. Eq. 
 (S. C.) 476. 
 
 2 Tyrrell's Case, Dyer, MS a. 
 
 455
 
 § 302.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 cutes the first use only in B. and his heirs, and the legal 
 estate is vested in him, as trustee tor the parties beneficially 
 interested. ^ 
 
 § 302. So where lands are conveyed by covenant to stand 
 seized, or by bargain and sale, or by appointment under a 
 power, to A. and his heirs, to the use of B. and his heirs, 
 the legal estate will vest in A., and B. will take only an 
 equitable interest; for these conveyances do not operate to 
 transfer the seizin to A.^ They merely raise a use which 
 the statute executes in him, and stops there. Thus, in a 
 deed of bargain and sale, the operation is as follows: the 
 consideration and the bargain raise a use in the bargainee 
 which the statute executes ; and thus, under a deed of bar- 
 gain and sale, the bargainee obtains both the use and the 
 legal title. But no use can be limited and executed on a use. 
 
 1 Duraut v. Ritchie, 4 Mason, 65; Hurst v. McNeil, 1 Wash. C. C. 70; 
 Hutchins v. Heywood, 50 N. H. 496 ; Croxall v. Sherard, 5 Wall. 268 ; 
 Reed v. Gordon, 35 Md. 183 ; Cueman v. Broadnax, 37 N. J. Eq. 523 ; 
 Matthews v. Ward, 10 G. & J. 443; Whetstone v. Bury. 2 P. Wms. 146; 
 WagstaS V. Wagstaff, id. 258; Att. Gen. v. Scott, Forrest, 138; Doe v. 
 Passingham, 6 B. & Cr. 305; Jones v. Lord Saye & Sele, 1 Eq. Cas. Ab. 
 383 ; Marwood v. Darell, Ca. t. Hard. 91; Hopkins v. Hopkins, 1 Atk. 
 581; Jones v. Bush, 4 Harr. 1; 1 Sand. Uses, 195; 2 Black. Com. 336; 
 Williams v. Waters, 14 M. & W. 166 ; Ramsay v. Marsh, 2 .AlcCord, 252 ; 
 Burgess v. Wheate, 1 W. Black. 160 ; Wilson r. Cheshire, 1 McCord, 233. 
 The statute of uses in some of the States, as Virginia, speaks of uses 
 raised by deed. Consequently, it is said that uses raised by devise are not 
 executed, but remain trusts. Judge Lomax, however, denies this con- 
 struction. 1 Lomax, Dig. 188, 196. In New York, the uses named in 
 the text would be executed in the cestui que use by the statute of uses and 
 trusts, and he would have the entire legal title. 
 
 2 .Johnson v. Gary, 16 .Johns. 304 ; 1 Cruise, Dig. tit. 12, c. 1, § 9 ; Gilb. 
 on Uses, 67, 347. Mr. Blackstone condemned this rule. 2 Black. Com. 
 336. And Lord Mansfield said that the rule grew up from the absurd 
 narrowness of courts of common law. Goodright v. Wells, 2 Doug. 771. 
 And Mr. Greenleaf doubts if the rule that a use cannot be limited upon a 
 use would be generally acted upon in the United States, especially in those 
 States which have declared by statute what formalities shall alone be 
 necessary to pass estates. Green. Cruise, Dig. tit. 12, c. 1, § 4, n. (vol. i. 
 p. 380) ; and see Davis v. Hayden, 9 Mass. 514 ; Flint v. Sheldon, 13 Mass. 
 443 ; Marshall v. Fisk, 6 Mass. 24. 
 
 456
 
 CHAP. X.] CONSTUUCTIOX OF TIIK STATUTE. [§ 303. 
 
 Hence, if A. conveys hind to B., to the use of C, In' a deed 
 of bargain and sale, the statute will not execute the use in 
 C, but the legal title will renuiin in B. subject to a trust for 
 C, to be administered in equity; for the consideration and 
 bargain only raise a use in B., which the statute executes, 
 but the use in B. for C. is in the nature of a use limited upon 
 a use, which the statute docs not execute.^ 
 
 § 303. Another technical construction of the word 
 "seized" withdrew all uses or trusts created in copyhold or 
 leasehold estates, and all chattel interests and personal prop- 
 erty, from the operation of the statute. The judges resolved 
 in the 22d of Elizabeth that the word "seized" was only 
 applicable to freeholds; consequently no one could be said to 
 be "seized" of a leasehold or other chattel interests in real 
 estate, or of personal pro[)crty. Therefore, if A. gave lease 
 holds or personal property to B. for the use of C, the statute 
 did not execute the use, but B. took the legal title in trust 
 for C, w'hich trust was not recognized at law, but only in 
 equity.2 So tenants by curtesy or in dower cannot stand 
 
 1 The question has been raised in ^Massachusetts whether land can be 
 conveyed by deed of bargain and sale to one for the use of another, and 
 create anything more than a trnst for the last beneficiary. Stearns v. 
 Palmer, 10 Met. 32 ; Norton v. Leonard, 12 Pick. 152. The general doc- 
 trine stated in the text is fully admitted, but it is claimed iu answer that 
 the deeds in general use, although in the general form of deeds of bar- 
 gain and sale, are in fact, by force of the statutes, equivalent to grants or 
 feoffments, and it is said that if deeds will not operate in the form in 
 ■which tlipy are drawn, they shall be construed to operate according to 
 the intention of the parties. Higbee v. Kice, 5 Mass. 352 ; Pray v. Peirce, 
 7 :Mass. 381 ; Knox v. Jenks, id. 4!)4 ; Russell v. Coffin, 8 Pick. 143. The 
 question was left undecided in Norton v. Leonard and Stearns v. Palmer, 
 ut supra, but see the remarks of Chief Justice Dana, in Thatcher v. Omans, 
 3 Pick. 5_'3. The same question may arise in other States, where their 
 deeds are in form deeds of bargain and sale. 
 
 2 Ante, § G; Dyer, 3G9 a; Doe v. Routledge, 2 Cowp. 709; Sympson 
 V. Turner, 1 Eq. Ab. 383; 2 Wooddes. Lect. pp. 295, 297; 1 Cruise, Dig. 
 p. 354, and tit. 12, c. 1; Gilb. Ten. 182; Gilb. Uses, 67 n. ; Rice v. Bur- 
 nett, 1 Spear, Eq. 579 ; Joor v. Ilodges, Spear, 593 ; Pyron v. Mood, 2 
 McMuUan, 293. In some Slates, the statutes use the word " po.ssessed " in- 
 stead of the word " seized," in which case both real and personal estate and 
 
 457
 
 § 305.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 seized to a use, for they are in by act of law in consideration 
 of marriage and not in privity of estate; but in equity they 
 would be held to execute any trusts charged upon their inter- 
 ests or estates.^ 
 
 § 304. From these instances, it will be seen that, in order 
 to create a trust, it is necessary to prevent the legal estate 
 from vesting in the cestui que trust, and it is necessary that 
 not only the legal title, but the primary use, should vest in 
 the trustee. Any form of conveyancing that will effect this, 
 notwithstanding the statute, will create a trust; as if a grant 
 or devise be made to a trustee and his heirs, to the use of the 
 trustee and his heirs, or unto and to the use of the trustee 
 and his heirs, the title and the primary use will both be 
 vested in the trustee ; and although there is a trust or use 
 over to some other person, yet it will not be effected by the 
 statute, it not being the primary use.^ 
 
 § 305, The third rule of construction is less technical, and 
 relates to special or active trusts, which were never within 
 the purview of the statute.^ Therefore if any agency, duty, 
 or power be imposed on the trustee, as by a limitation to 
 a trustee and his heirs to pay the rents,* or to convey the 
 
 chattel interests would be transferred to the uses raised. Tabb v. Baird, 
 3 Call, 482. But this construction is controverted by Judge Lomax. 1 
 Lomax, Dig. 190. 
 
 ^ 1 Saunders on Uses, 86; 2 Foubl. Eq. book 2, c. 6, § 1, and notes, 
 p. 140. 
 
 2 Rackham v. Siddall, 1 :\Iac. & G. 607 ; Doe v. Passingham, 6 B. & C. 
 305; Robinson v. Comyns, t. Talb. 154; Doe v. Field, 6 B. & Ad. 564; 
 Att. Gen. v. Scott, t. Talb. 1-38; Hopkins v. Hopkins,! Atk. 589; Harris 
 V. Pugh, 12 Moore, 577; 4 Bingh. 335; Prise v. Sisson, 2 Beas. 168; 
 Eckels y. Stewart, 33 Penn. St. 400; Freyvogle v. Plughes, 56 id. 228; 
 Dodson V. Ball, 60 id. 492 ; McMullin v. Beatty, 56 id. 387 ; Keyser's 
 App., 57 id 636; Koenig's App., id. 352; Bacon's App., id. 504; Good- 
 rich r. Milwaukee, 24 Wis. 422. 
 
 3 Chapin v. Universalist Soc, 8 Gray, 580; Exeter i;. Odiorne, 1 X. H. 
 232; Mott v. Buxton, 7 Ves. 201; Wright v. Pearson, 1 Edw. 125; 
 Wheeler v. Newhall, 7 Mass. 189; Norton v. Leonard, 12 Pick. 152; 
 Striker v. Mott, 2 Paige, 387 ; Wood v. Wood, 5 id. 596. 
 
 4 Robinson v. Grey, 9 East, 1 ; Jones v. Saye & Sele, 1 Eq. Cas. Ab. 
 
 458
 
 CHAP. X.] A TRUST MUST NOT BE EXECUTED BY STATUTE. [§ 305. 
 
 estate,^ or if any control is to bo exercised, or duty performed 
 by the trustee in applybuj the rents to a person's niainte- 
 .nance,2 or in maiving repairs,^ or to preserve contingent re- 
 mainders,* or to raise a sum of money, ^ or to dispose of the 
 estate by sale,® — in all these, and in other and like casts, 
 the operation of the statute is excluded, and the trusts or 
 uses remain mere ecpiitable estates. So if the trustee is to 
 exercise any discretion in the management of the estate, in 
 the investment of the proceeds or the principal, or in the 
 application of the income;' or if the purpose of the trust is 
 to protect the estate for a given time, or until the death of 
 some one, or until division,^ (*<) or until a rc(iucst for a con- 
 
 383 ; Barker v. Greenwood, 4 i\I. & W. 429 ; Sympson v. Turner, 1 Eq. 
 Cas. Ab. 383; Chapman v. Blissett, Cas. t. Talb. 145; Garth v. Baldwin, 
 2 Ves. 610; Sherwin v. Kenny, IG Ir. Ch. 138; Anthony v. Kees, 2 Cr. & 
 Jer. To; Doer. Ilampray, G Ad. & El. 20G; White v. Barker, 1 Bing. 
 N. C. 573, Kenrick v. Beauclerk, 3 Bos. & P. 178; Neville v. Saunders, 
 1 Vera. 415. See the elaborate case, Leggett v. Perkins, 2 Comst. 297 ; 
 Brewster v. Striker, id. 19 ; Morton v. Barrett, 22 Maine. 261 ; McCosker 
 V. Brady, 1 Barb. Ch. 329; Doe v. Biggs, 2 Taunt. 109; Wickhani t;. 
 Berry, 53 Penii. St. 70 ; jNIanice v. Manice, 43 N. Y. 203; Adams i-. Perry, 
 id. 487; ilutchins v. Ileywood, 50 N. II. 500; Barnelt's App., 46 Penn. 
 St. 392; Shankland's App., 47 id. 113; Ogden's App., 70 id. 501 ; Dei- 
 bert's App., 78 id. 29G ; Mecehani v. Steele, 93 111. 13.j. 
 
 1 Ibid ; Doe w. Edlin, 4 Ad. & El. 582; Doe v. Scott, 4 Bing. 505; 
 Mott r. Buxton, 7 Ves. 201. 
 
 2 Sylvester v. Wilson, 2 T. R. 411; Doe i-. Edlin, 4 Ad. & El. 582; 
 Vail V. Vail, 4 Paige, 317; Porter v. Doby, 2 Rich. Eq. 52 ; Doe v. Iron- 
 monger, 3 East, 533 ; Gerard Ins. Co. c. Chambers, 40 Penn. St. 485. 
 
 2 Shaplaud y. Smith, 1 Bro. Ch. 75; Brown v. Ramsden, 3 Moore, 
 612; 'I'ierney v. Moody, 3 Bing. 3. 
 
 ^ Biscoe V. Perkins, 1 Ves. & B. 485; Barker v. Greenwood, 4 M. & W. 
 431 ; Vanderheyden v. Crandall, 2 Denio, 9. 
 
 * AVriglit V. Pearson, 1 Eden, 119 ; Stanley v. Lcnnard. id. 87. 
 
 c Bagshaw v. Spencer, 1 Ves. 142 ; Wood v. Mather, 3S Barb. 473. 
 
 ■^ Exeter v. Odiorne, 1 N. II. 232; A.shhurst i\ Given, 5 W. & S. 323; 
 Vaux V. Parke, 7 W. & S. 19; Nickell i-. Ilandly, 10 Grat. 336. 
 
 8 Posey V. Cook, 1 Hill (S. C), 413; IMorton v. Barn-tt. 22 Me. 261 ; 
 Wood V. Mather, 38 Barb. 473 ; McCaw v. Galbraith, 7 Rich. L. 74 ; Wil- 
 
 (a) See Hart I'. Bayliss, 97Tenn. to the exercise of the discretionary 
 72. Title in the trustee is essential power to withhold or give an estate. 
 
 459
 
 § 306.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 veyance is made.^ So if an estate is given upon a trust to 
 sell or mortgage for the payment of debts, legacies, or annu- 
 ities, or to purchase other lands to be settled to certain uses ; ^ 
 and this construction will not be affected b}' a power given to 
 one of the cestuis que trust to control the sale of part of the 
 estate,^ nor by the fact that the direction for the payment of 
 debts and legacies, out of the proceeds of the sale of the land, 
 is only in aid of the personal property.'* 
 
 § 306. If, however, the trust simply is to permit and suffer 
 
 A. to occupy the estate, or to receive the rents, the legal 
 estate is executed in A. by the statute.^ And a trust to hold 
 for the use and benefit of, and to apply the rents to, the 
 children of A., is executed in the children, notwithstanding 
 the word "apply " is used.^ But where the trust is '■'■ to pay 
 unto " or to permit and suffer a person to receive the rents, 
 using both expressions, the construction will be governed by 
 the intention of the donor ; and in this view the position of 
 
 liams V. McConico, 36 Ala. 22 ; Nelson v. Davis, 35 Ind. 474 ; McXish v. 
 Guerard, 4 Strob. Eq. 66, was to the contrary upon the facts of that par- 
 ticular case. 
 
 1 Walter v. Walter, 48 Mo. 140. 
 
 2 Curtis V. Price, 12 Ves. 89; Doe v. Ewart, 7 Ad. & El. 636, 668; 
 Ashhurst v. Given, 5 W. & S. 323; Vaux v. Parke, 7 W. & S. 19 ; Keene 
 V. Deardon, 8 East, 248; Bagshaw v. Spencer, 1 Ves. 142; Chamberlain 
 V. Thompson, 10 Conn. 244; Sanford v. Irby, 3 B. & Al. 654; Creaton v. 
 Creaton, 3 Sm. & Gif. 386; Spence v. Spence, 12 C. B. (n. s.) 199; Smith 
 V. Smith, 11 C. B. (n. s.) 121. 
 
 8 Chapman v. Blissett, Forr. 145; Naylor v. Arnitt, 1 R. & M. 501; 
 Wykhaiu v. Wykham, 18 Ves. 395. 
 
 * Ibid. ; Murthwaite v. Jenkinson, 2 B. & Cr. 2.37. 
 
 5 Right V. Smith, 12 East, 455; Wagstaff v. Smith. 9 Ves. 524; Greg- 
 ory f. Henderson, 4 Taunt. 773; Warter v. Hutchinson, 5 Moore, 143; 1 
 
 B. & C. 721 ; Barker v. Greenwood, 4 M. & W. 429; Boughton v. Langley, 
 1 Eq. Cas. Ab. 383 ; 2 Salk. 679 (overruling Burchett r. Durdant, 2 Vent. 
 311) ; Doe ;;. Biggs, 2 Taunt. 109 ; Ramsay v. Marsh, 2 :\IcCord, 252 ; 
 Parks V. Parks, 9 Paige, 107 ; Witham v. Brooner, 63 111. 158. 
 
 ^ Laurens v. Jenney, 1 Spears, 356. 
 
 Marshall's Estate, 147 Penn. St. 77; v. Prior, 16 R. 1. 566; In re Dolan, 
 Kreb's Estate, 184 id. 222; see Fish 79 Cal. 65. 
 460
 
 CHAP. X.] WHEN A TRUST IS NOT EXECUTED BY STATUTE. [§ 308. 
 
 the words in the sentence, and the jn-iority of tlie words, and 
 the consideration whether tiie instrument is a deed or will, 
 will have a material bearing iii^m the decision.^ Mv. Jar- 
 man and Mr. Lewin suggest that the rejtugnancy would be 
 obviated in such a case by construing the instrument to give 
 an election or discretion to the trustees.^ 
 
 § 307. Althongh the direction may be for the trustees to 
 permit and suffer another person to receive the rents, yet if 
 any duty is imposed upon the trustees expressly or by impli- 
 cation, the legal estate will remain in them unaffected by the 
 statute. As if the direction is to peryiiit A. to receive the 
 net ^ rents, or the clear ^ rents, the trustees take the legal 
 estate, the words 7ict and clear implying that the trustees are 
 to pay all charges, and ])ay over the balance. So if, in addi- 
 tion to a devise in trust to preserve contingent remainders, 
 there is a direction to permit A. to receive the rents and 
 profits;^ and so if trustees are to pay certain life annuities 
 out of the rents, and subject to those annuities to permit and 
 su^er certain persons to receive the rents and profits.^ So if 
 the trustees are to exercise any control," as if there is a trust 
 to permit and suffer a woman to receive the rents, and that 
 her receipts with the approbation of one of the trustees should 
 be good. 8 
 
 § 308. A mere charge of debts and legacies on real estate 
 
 will not vest the estate in the trustees, unless there is some 
 direction to them to raise the money and pay them, or unless 
 
 1 Doe V. Biggs, 2 Taunt. 109 ; Pybus v. Smith, 3 Bro. Ch. 3 tO. 
 
 2 1 Jarra. Pow. Dcv. 222. n. ; Lewin on Trusts, 174 (otli Lond. ed.). 
 
 8 Barker v. Greenwood, 4 M. & W. 421 ; Keene v. Deardou, 8 East, 
 24S; Rife r. Geyer, ."jO Penn. St. 305. 
 
 * Wliite r. Parker, 1 Bing. N. C. 573. 
 
 s Biscoe V. Perkins, 1 Ves. & B. 485, 489; Webster v. Cooper, 14 IIow. 
 499 ; Vanderheyden v. Crandall, 2 Denio, 9. 
 
 « Naylor v. Arnitt, 1 R. & M. 501. 
 
 7 Exeter v. Odiorne, 1 N. II. 232. 
 
 8 Gregory v. Henderson, 4 Taunt. 772 ; Barker v. Greenwood, 5 M. & 
 W. 430. 
 
 461
 
 § o08.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 there is some other implication that they are to exercise an 
 active trust for the purpose.^ (a) Nor does the legal estate 
 vest in the trustees where the charge of the debts and legacies 
 upon the real estate is contingent upon the insufficiency of 
 any other fund, for in that case the trustees do not take an 
 immediate vested interest;^ but if the charge is made in aid 
 of any other fund without contingency, the trustees will take 
 immediately a legal estate.^ So if the trustees are to demise 
 the estate for a term, at rack-rent or otherwise, the term 
 must come out of their interest, and the legal estate must be 
 in them.^ If, however, the instrument confers by construc- 
 tion upon the trustees a mere i^ower of leasing, a good legal 
 term may be created by the exercise of the power and with- 
 out the legal estate in them.^ So if a testator give his trus- 
 tees a simple power of disposing of his estates, as that his 
 executors or trustees, or other persons, shall sell or let or 
 mortgage, or otherwise dispose of his estate, to pay his debts 
 or legacies or annuities, or other charges, or where he 
 directs his executors to raise money, no estate vests in the 
 trustees, executors, or other persons, but it descends to the 
 heir or the person to whom it is directed to go in the will, 
 until it is wanted for the purposes named, and then it is 
 
 1 Doe V. Claridge, 6 Man. & Scott, 657; 1 Jarm. Pow. Dev. 224, n. ; 
 Kenrick v. Beauclerk, 3 B. & P. 178; Cadogan v. Ewart, 7 Ad. & El. 6.36, 
 668; Jones v. Saye & Sele, 8 Vin. 262 ; Creaton r. Creaton, 3 Sm. & Gif. 
 386 ; Collier v. McBean, 34 Beav. 426. 
 
 - Goodtitle v. Knott, Coop. 43 ; Hawker v. Hawker, 3 B. & Al. 537; 
 Gibson v. Montfort, 1 Ves. 485. 
 
 3 jMurthwaite v. Jenkinson, 2 B. & Cr. 357 ; Wykham v. Wykham, 18 
 Ves. 395 ; and see Popham v. Bamfield, 1 Vern. 79. 
 
 4 Doe r. Willan, 2 B. & Al. 84 ; Doe v. Walbank, id. 554 ; Osgood v. 
 Franklin, 2 Johns. Ch. 20; Burr v. Sim, 1 Whart. 266 ; Riley v. Garnett, 
 3 De G. & Sm. 629; Brewster v. Striker, 2 Comst. 19; Doe v. Cafe, 7 
 Exch. 675. 
 
 6 Doe V. Willan, 2 B. & Al. 84 ; Doe v. Simpson, 5 East, 162. 
 
 (a) In re Stephens, 43 Ch. D. 39; not charge them upon the testator's 
 Re Oliver, 62 L. T. 533. Mere real estate. In re Head's Trustees, 
 authority given to executors and 45 Ch. D. 310. 
 trustees by will to pay debts does 
 462
 
 CHAT. X.] WIIKN TRUSTEES TAKE THE LEGAL TITLE. [§ 309. 
 
 divested only to the extent necessary for the purposes named. 
 So where an estate was to remain in tlie hands of executors, 
 for the use of the widow and children, until the youngest 
 child should hecome twenty-one years old, the executors or 
 trustees took no interest in the estate hut a simple power. ^ 
 Such directions are simple power* of disposition, which may 
 he executed without any legal title.''' 
 
 § 309. Where a testator gave his wife an annuity, and a 
 certain sum to his children to he paid when they arrive at 
 twenty-one years, and appointed three persons hy name, "as 
 trustees of inheritance for the execution thereof," it was held 
 that the trustees took the legal estate.^ And if several .trusts 
 are created in the same instrument, some of which would he 
 executed hy the statute, and others would require the legal 
 estate to remain in the trustees, they will take the legal 
 estate ; and this will he the case, though the trusts are limited 
 to arise successively.'* In all cases where an estate is given 
 to trustees to preserve contingent remainders, the statute 
 does not execute the estate in the cestui que trust ;^ and in 
 every case where the words " to the use of the trustees " are 
 used, the statute does not execute the estate, although it is 
 
 1 Burke v. Valentine, 52 Barb. 412. 
 
 2 Reeve v. Att. Gen., 2 Atk. 22:5; Hilton v. Kenworthey, 3 East, 5.>3; 
 Batenian /•. Batenian, 1 Atk. 421 ; Fowler v. Jones, 1 Ch. Cas. 262; Lan- 
 caster r. Thornton, 2 Burr. 1027 ; Yates v. Compton, 2 P. Wins. 308 ; Fay 
 V. Fay, 1 Cush. 94 ; Shelton v. Homer, 5 Met. 4G2 ; Bank of U. S. v. Bev- 
 erly, 10 Peters, 532 ; 1 How. 134 ; Deering v. Adams, 37 IMaine, 264 ; 
 Jackson r. Schauber, 7 Cow. 187; 2 Wend. 12; Burr v. Sim, 1 Whart. 
 26G : Guyer v. iMayiiard, 6 Gill. & J. 420 ; Dabney r. Manning. 3 Oliio, 
 321: Jameson v. Smith, 4 Bibb, 307; Hope v. Johnson, 2 Yerg. 123; 
 Bradshaw v. Ellis, 2 Dev. & Bat. Y.q. 20. In Pennsylvania, such powers 
 conferred upon executors pass the estate by force of a statute. Miller v. 
 Meetch, 8 Penn. St. 417 ; Chew v. Chew, 2S id. 17. 
 
 8 Trent v. Harding, 10 Ves. 495; 1 B. & P. N. C. 116 ; 7 East, 95; Re 
 Hough, 4 De G. & Sni. 371 ; Re Turner, 2 De G., F. & J. 527. 
 
 * Hawkins v. Luscombe. 2 Swaiist. 375, 391 ; Ilorton r. Hortoii. 7 T. 
 R. 652 ; Blagrave i'. I5lagrave, 4 Exch. .570 ; Brown iv Whiteway, 8 Hare, 
 156; Stockbridgo v. Stockbridge, 99 Mass. 244. But see Tucker v. John- 
 eon, 16 Sim. 341 ; Leonard v. Diamond, 31 IVId. 536. 
 
 6 Laurens i\ Jenny, 1 Spears, 365; Co. Litt. 265 a, n. 2 ; 3.37 a, n. 2. 
 
 463
 
 § 310.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 to the use of the trustees in trust for another ; for the statute 
 only executes the first use.^ 
 
 § 310. If an estate be given to trustees upon a trust for a 
 married woman "for her sole and separate use," and "her 
 receipts alone to be sufficient discharges," or if the trust be 
 to "permit and suffer ^feme covert to receive the rents to her 
 separate use," the legal estate will vest in the trustees, and 
 the statute will not execute it in the cestui que trust.'^ In all 
 these cases the court will give this construction to the gift, if 
 possible;^ for if the statute should execute the estate in the 
 married woman, certain rights would arise to the husband 
 which might defeat the intention of the donor. ^ These are 
 not the only words that will prevent the estate from vesting. 
 Any words that show an intent to create an estate or a trust, 
 for the sole and separate use of a married woman, will have 
 the same effect.^ And a woman in contemplation of mar- 
 riage may deed lands to another to stand seized to the sole 
 use of the grantor, and the statute will not affect the trans- 
 action, but a trust will be created, as otherwise the intent of 
 the parties would be defeated.^ But it is said that if an 
 estate is " released by deed " to A. and his heirs " upon a 
 
 » Ante, § 304 ; Keene v. Deardon, 8 East, 248; Whetstone v. St. Bury, 
 2 P. Wms. 146 ; Pr. Ch. 591 ; Sympson v. Turner, 1 Eq. Cas. Ab. 383; 
 Hopkins v. Hopkins, 1 Atk. 586 ; Hawkins v. Luscombe, 3 Swanst. 376, 
 388. 
 
 2 Horton r. Horton, 7 T. R. 652 ; Neville v. Saunders, 1 Vern. 415 ; 
 Jones V. Saye & Sele, 1 Eq. Cas. Ab. 383 ; Doe v. Claridge, 6 C. B. 641 ; 
 Hawkins r. Luscombe, 2 Swanst. 391 ; South v. Alleyne, 5 Mod. 63, 101 ; 
 Bush V. Allen, id. 63; Robinson v. Grey, 9 East, 1 ; Ayer v. Ayer, 16 
 Pick. 330; Williraan v. Holmes, 4 Rich. Eq. 475; McNish v. Guerard, 4 
 Strob. Eq. 475; Franciscus r. Reig-art, 4 Watts, 109 ; Escheator ?'. Smith, 
 4 McCord, 4.52; Bass v. Scott, 2 Leigh, 3.56 ; Rogers v. Ludlow, 3 Sandf. 
 Ch. 104; Richardson v. Stodder, 100 Mass. 528. 
 
 8 Ware v. Richardson, 3 Md. 505; Moore v. Shultz, 13 Penn. St. 98, 
 
 * Ibid. ; Rice v. Burnett, 1 Spear, Eq. 580. 
 
 6 Ayer v. Ayer, 16 Pick. 331; Kirk v. Paulin, 7 Vin. Ab. 95; Tyrrel 
 V. Hope, 2 Atk. 558 ; Darley v. Darley, 3 Atk. 399 ; Hartley v. Hurle, 5 
 Ves. 540. 
 
 « Pittsfield Savings Bank v. Berry, 63 N. H. 109. 
 464
 
 CHAP. X.] WHEN TRUSTEES TAKE THE LEGAL TITLE. [§ 310 a. 
 
 trust" for "the sole and separate use of the releasor," and 
 no active duty is imposed ujion the trustee in rcs])Oct to the 
 sole and separate estate, a common-law court will reject the 
 sole and separate use as an estate unknown to the law ; and 
 it has been held in such case that the statute vested the 
 estate in the cestui que trust. ^ 
 
 § 310 a. But in order that an estate given to the sole and 
 separate use of a woman may vest and remain in the trustees, 
 it is necessary that she should be married or in immediate 
 contemplation of marriage. 'For if she is unmarried, or the 
 estate is not given in the immediate contemplation of her 
 marriage, it will vest in her at once by the statute of uses ; 
 or she will have the right to call for the execution of the 
 trust at once, by a conveyance of the legal estate to her by 
 the trustee, unless there are some other provisions in the 
 will or purposes of the trust which render it an active trust, 
 and the continuance of the legal estate in the trustees neces- 
 sary for its purposes. 2 It is not necessary that the contem- 
 plation of her immediate marriage should appear upon the 
 face of the will or settlement, if in fact an immediate mar- 
 riage was contemplated, and such fact was probably known 
 to the testator or settlor. ^ In such cases the trust will con- 
 tinue during the coverture of the woman, and at the decease 
 of her husband she will have the right to call for a convey- 
 ance of the property as upon a termination of the trust.* A 
 conveyance "in trust for B., wife of C, and her heirs and 
 
 1 Nash V. AUen, 1 Hurl. & Colt. 1G7 ; Williams v. "Waters, U M. & W. 
 166 (see remarks on this case in Ware v. Richardson, 3 Md. 505) ; Roberts 
 V. Moseley, 51 Mo. 2S2 ; Westcott v. Edmunds, 68 Penn. St. 34 ; Ed- 
 mund's App., id. 24. 
 
 2 Lancaster v. Dolan, 1 Rawle, 231 ; Smith v. Starr, 3 Wharton, 63 ; 
 Hammersley v. Smith, 4 "\Miarton, 129; McBride v. Smyth, 54 I'enn. St. 
 250; Yarnall's App., 70 id. 339 ; Ogden's App., id. 501 ; 29 Legal Int. 
 (May, 1872) 165; Wells r. McCall, 64 Penn. St. 207; Springer r. Arun- 
 del, id. 218; 7 Phila. R. 224; Credlant's Est., id. 58. 
 
 8 Wells V. IMcCall, 64 Penn. St. 207 ; Springer v. Arundel, id. 218. 
 * Megargee v. Naglee, 64 Penn. St. 211; Yarnall's App., 70 id. 339; 
 Freyvogle v. Hughes, 56 id. 230. 
 
 VOL. I. — 30 465
 
 § 312.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 assigns forever, " creates a trust during B. 's coverture and a 
 legal estate afterwards. If C. dies, the legal estate is in B. 
 and her heirs, though B. subsequently marries again. ^ 
 
 § 311. As stated, chattel interests in land and personal 
 property were never within the statute of uses, and the legal 
 title to them will remain in the trustee, until the purposes 
 of the trust are accomplished, and until the possession of 
 the property is in some way transferred to the person entitled 
 to the use, or the last use.^ But where the trust is at an end, 
 the title is in the person entitled to the last use;^ and a 
 mere delivery, without other formality, gives such person 
 full and absolute control of the property.* Until such deliv- 
 ery the law cannot recognize any equitable interests in 
 the property." If the cestui que trust is an infant, it is 
 said that the trust will not be executed by delivering the 
 property to him, because he is incapable of assenting to such 
 transfer.^ 
 
 § 312. In all cases where an estate is given to one for the 
 use of another, in such manner that the statute of uses steps 
 in and executes the estate in the cestui que trust, the statute 
 executes in the cestui que trust only the estate that the first 
 donee or trustee takes ; that is, the statute executes or trans- 
 fers the exact estate given to the trustee. Therefore, if A. 
 give an estate to B. and his heirs for the use of C. and his 
 heirs, the statute will execute the fee-simple in C. But if 
 
 1 Moore v. Stinson, 144 Mass. 594. 
 
 2 Ante, § 303; Harley v. Platts, 6 Rich. L. 315; Rice v. Burnett, 1 
 Spear, Eq. 590; Schley v. Lyon, 6 Ga. 530; Doe v. Nichols, 1 B. & Cr. 
 336; Slevin v. Brown, 3 Mo. 176. 
 
 8 Westcott V. Edmunds, 68 Penn. St. 34; Bacon's App., 57 id. 500; 
 Dodson V. Ball, 60 id. 492; Barnett's App., 10 Wright, 392; Rife v. Geyes, 
 59 Penn. St. 395; Freyvogle v. Hughes, 56 id. 228 ; Deibert's App., No. 1, 
 83 id. 462 ; Schaffer v. Lauretta, 57 Ala. 14. 
 
 4 Ibid. ; Bringhurst v. Cuthburt, 6 Binn. 398; Lawrie v. Bankes, 4 K. 
 & J. 142. 
 
 5 Ibid. ; lorr v. Hodges, 1 Spear, Eq. 593. 
 
 « Harley v. Platts, 6 Rich. L. 315. But see Lawrie v. Bankes, 4 K. & 
 J. 142; White v. Baylor, 10 Ir. Eq. 53; Bulstrode, 184. 
 466
 
 CHAP. X.] WHETHER TRUSTEES TAKE AN INHERITANCE. [§ 312. 
 
 A. gives an estate to B. for the use of C. and his heirs, the 
 statute will execute only an estate for the life of A. in C. ; 
 for that is the extent of the estate conveyed to B. by a deed 
 in that form ; that is, by a deed that has no words of inheri- 
 tance in B. ^ While this is the rule in respect to estates 
 which the statute executes, a very different rule applies to 
 estates upon a trust or use not executed by the statute. In 
 these cases, the extent or quantity of the estate taken by the 
 trustee is determined, not by the circumstance that words of 
 inheritance in the trustee are or are not used in the deed or 
 will, but by the intent of the parties. And the intent of the 
 parties is determined by the scope and extent of the trust. 
 Therefore, the extent of the legal interest of a trustee in an 
 estate given to him in trust is measured, not by words of in- 
 heritance or otherwise, but by the object and extent of the 
 trust upon which the estate is given. ^ On this principle, two 
 rules of construction have been adopted by courts: first, 
 "Wherever a trust is created, a legal estate, sufficient for 
 the purposes of the trust, shall, if possible, be implied in the 
 trustee, whatever may be the limitation in the instrument, 
 
 1 Newhall v. Wheeler, 7 Mass. 189; Cro. Car. 231; Nelson r. Davis, 
 35 Ind. 474; Baptist Soc. v. Hazen, 100 Mass. 322; Idle v. Cooke. 1 P. 
 Wms. 77 ; Doe v. Smeddle, 2 B. & A. 126 ; Chambers v. Taylor, 2 M. & 
 Cr. 376; Vanhorn v. Harrison, 1 Dall. 137; Jackson v. Fish, 10 Johns. 
 456. Where a gift is made by deed to individuals and their " successors," 
 without the word "heirs," in trust for or to the use of a corporation or 
 religious society, an inheritance or succession is not created ; and if the 
 statute of uses applies to the conveyance, only a life-estate is executed in 
 the corporation or religious society. Henderson i\ Hunter, 59 Penn. St. 
 325; First Bap. Soc. in Andover v. Hazen, 100 oMass. 322. 
 
 2 Cleveland v. Hallett, 6 Cush. 407 ; Gibson v. Montfort, 1 Ves. 485 ; 
 Newhall v. Wheeler, 7 Mass. 189, 198; Gates v. Cooke, 3 Burr. 16S4 ; 
 Stearns v. Palmer, 10 Met. 32 ; Sears r. Russell, 8 Gray, 86 ; Gould v. 
 Lamb, 11 Met. 84; Brooks v. Jones, id. 191 ; Fisher v. Fields, 10 Johns. 
 495; Doe v. Field, 2 B. & Ad. 5G4 ; Trent v. Hanning, 7 East, 99; Doe v. 
 Willan, 2 B. & A. 84; 8 Vin. Ab. 202, pi. 18; Shaw v. Wright, 1 Eq. Cas. 
 Ab. 176, pi. 8; Brewster v. Striker, 1 E. D. Smith, 321; Richardson r. 
 Stodder, 100 Mass. 528 ; Fox v. Storrs, 75 Ala. 267 ; Gosson t;. Ladd, 77 
 id. 224; West v. Fitz, 109 111. 425 ; Jourolmon v. Massengill, 86 Teiin. 
 82. See Henderson v. Hill, 9 Lea (Tenn.), 25; Young v. Bradley, lul 
 U. S. 782. 
 
 467
 
 § 313.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 whether to him and his heirs or not."^(a) And, second, 
 "Although a legal estate may be limited to a trustee to the 
 fullest extent, as to him and his heirs, yet it shall not be 
 carried farther than the complete execution of the trust 
 necessarily requires. "^ 
 
 § 318. Thus courts have by construction implied an estate 
 in the trustees, although no estate was given them in words; 
 but, in all such cases, the trustees were required to do some- 
 thing that required a legal estate of some kind in them ; as, 
 
 1 Xeilson v. Lagow, 12 How. 98; Sears v. Russell, 8 Gray, 86; Cham- 
 berlain V. Thompson, 10 Conn. 244 ; Cleveland v. Hallett, 6 Cush. 407 ; 
 Payne v. Sale, 2 Dev. & Bat. Eq. 460; Nichol v. Walworth, 4 Denio, 385; 
 Upham V. Varney, 15 N. H. 462 ; King v. Parker, 9 Cush. 71 ; Williams 
 V. First Soc. in Cin., 1 Ohio St. 478; Hawley v. James, 5 Paige, 318; 
 Deering v. Adams, 37 Maine, 265; Webster v. Cooper, 14 How. 499; Com- 
 bry V. McMichael, 19 Ala. 751; Gill v. Logan, 11 B. Mon. 233; Powell v. 
 Glen, 21 Ala. 468 ; King v. Akerman, 2 Black, 408 ; Ward v. Amory, 1 
 Curtis, C. C. 427 ; White v. Baylor, 10 Jr. Eq. 54 ; Meeting St. Bap. Soc. 
 V. Hail, 8 R. T. 240 ; Nelson v. Davis, 35 Ind. 474 ; Kirkland v. Cox, 94 
 lU. 400 ; Preachers' Aid Society v. England, 106 111. 128. 
 
 2 Norton v. Norton, 2 Sandf. 296 ; Williman v. Holmes, 4 Rich. Eq. 
 475; Watson v. Pearson, 2 Exch. 593; Blagrave v. Blagrave, 4 id. 569; 
 Brown v. Whiteway, 8 Hare, 156 ; Saye & Sele v. Jones, 1 Eq. Cas. Ab. 
 383 ; 3 Bro. P. C. 113 ; Shapland v. Smith, 1 Bro. Ch. 75 ; Heardson v. 
 Williamson, 1 Keen, 33 ; Player v. Nicholls, 1 B. & Cr. 142 ; Warter v. 
 Hutchinson, 5 Moore, 153 ; 1 B. & Cr. 721 ; Chapman v. Blissett, Forr. 
 145; Doe v. Hicks, 7 T. R. 433 ; Nash v. Coates, 3 B. & A. 839 ; Ex parte 
 Gadsden, 3 Rich. 468; Adams v. Adams, 6 Q. B. 866; Barker v. Green- 
 wood, 4 M. & W. 429; Doe v. Claridge, 6 C. B. 641 ; Warer. Richardson, 
 3 Md. 505; Pearce v. McClenaghan, 5 Rich. 178; Ellis v. Fisher, 3 Sneed, 
 231 ; Gardenhire v. Hinds, 1 Head, 402 ; Smith v. IVIetcalf , id. 64 ; Slevia 
 V. Brown, 32 Mo. 176; Greenwood v. Coleman, 34 Ala. 150; Bryan v. 
 Weeras, 29 Ala. 423; Koenig's App., 57 Penn. St. 552; Ivory v. Burns, 
 56 id. 300; "Wilcox v. Wilcox, 47 N. H. 488; McBride v. Smyth, 59 id. 
 245; West v. Fitz, 109 111. 425; Farmers' Nat'l Bank v. Moran, 30 
 Minn. 167; Davis v. Williams, 85 Tenn. 646. But see Watkins v. Specht, 
 7 Cold. 585; McElroy v. McElroy, 113 Mass. 509. 
 
 (a) The trustee takes such an San Francisco, etc., R. Co., 107 Cal. 
 
 estate only as is adequate to the 587; Carney v. Kain, 40 W. Va. 
 
 execution of the trust. Morffew v. 758. 
 468
 
 CHAP. X.] WHETHER TRUSTEES TAKE AN INHERITANCE. [§ 315. 
 
 where a testator gave to a married woman the rents and 
 profits of certain hxnds to be paid her by his executors, it was 
 held to be a devise of the land itself to the executors, al- 
 though nothing was given them in terms, to enable tliem to 
 carry out the purposes of the trust. ^ (a) So a power given to 
 executors to rent, lease, repair, and insure, implies a legal 
 title in them.^ 
 
 § 314. In the same manner, and for the same reasons, 
 courts have enlarged or extended estates given to trustees. 
 Thus, if A. gives an estate to B. without words of limitation, 
 it is an estate for the life of A. ; but if A. gives an estate to 
 B. to pay certain annuities to persons named, for their lives, 
 the trustee takes an estate for the lives of the several 
 annuitants.^ 
 
 § 315. So, if land is devised to trustees without the word 
 "heirs," and a trust is declared which cannot be fully executed 
 but by the trustees taking an inheritance, the court will en- 
 large or extend their estate into a fee-simple, to enable them 
 to carry out the intention of the donor.* (i) Thus, if land is 
 
 1 Gates V. Cooke, 3 Burr. 1684 ; W. Black. 543 ; Bush v. Allen, SIMod. 
 63 ; Doe v. Woodhouse, 4 T. R. 89 ; Doe v. Homfray, 6 Ad. & El. 206 ; 
 Doe V. Sampson, 5 East, 162 ; Feedey's App., 60 Penn. St. 349. 
 
 2 Kellatn v. Allen, 52 Barb. G05. 
 
 « Jenkins v. Jenkins, Willes, 656 ; Shaw v. "Weigh, 2 Str. 798 ; Gates 
 V. Cooke, 3 Burr. 1684, and other cases cited, § 313, n. 2. 
 
 * Villiers v. Villiers, 2 Atk. 72 ; Cleveland v. Hallett, 6 Cush. 407 ; 
 Fisher v. Fields, 10 Johns. 505 ; Ellis v. Fisher, 3 Sneed, 231 ; Rackham 
 V. Siddall, 1 Mac. & G. 607 ; 2 Hall & T. 44 ; Deering r. Adams, 37 Maine, 
 265; Brown v. Brown, 12 Md. 87; Webster r. Cooper, 14 How. 499; 
 Blagrave v. Blagrave, 4 Exch. 569 ; Hawkins v. Chapman, 30 Md. 94 ; 
 
 (a) See Davies to Jones, 24 Ch. ^lass. 9 ; Dorr v. Clapp, 160 Mass. 
 
 D. 190. 538; Hopkins v. Grimshaw, 165 ; 
 
 (6) This rule depends upon the U. S. 342, 352 ; Taine v. Forsaith, 
 intention, which is determined by 84 Maine, 66 ; Phillips v. Swank, 
 the whole instrument ; and, in gen- 120 Penn. St. 76 ; Kennedy v. Gram- 
 era), the word " heirs " is not neces- ling. 33 S. C 367 ; Crane v. Bolles, 
 sary when the scope of the powers 49 N. J. Eq. 373; Carney v. Kain, 
 granted requires a fee for their exe- 40 W. Va. 758. 
 cution. O'Rourke v. Beard, 151 
 
 469
 
 § 316.] ESTATE OF THE TKUSTEE. [CHAP. X. 
 
 conveyed to trustees, without the word "heirs," in trust to 
 sell, they must have the fee, otherwise they could not sell. ^ (a) 
 The construction would be the same if the trust was to sell 
 the whole or a part ; for no purchasers would be safe unless 
 hey could have the fee;^ and a trust to convey or to lease at 
 discretion would be subject to the same rule.^ A fortiori, if 
 an estate is limited to trustees and their heirs in trust to sell 
 or mortgage or to lease at their discretion, or if they are to 
 convey the property in fee, or divide it equally among certain 
 persons; for to do any or all these acts requires a legal fee.* 
 
 § 316. Where an estate is given to trustees in fee upon 
 trusts that do not exhaust the whole estate, and a power is 
 superadded which can only be exercised by the trustees convey- 
 ing in fee-simple, the trustees will take the fee, and the estate 
 conveyed by them will be sustained by the fee in them, and 
 
 Farquharson v. Eichelberger, 15 Md. 72 ; Packard v. Marshall, 138 Mass. 
 302. 
 
 1 Gibson v. Montford, 1 Ves. 491; Amb. 95; Shaw v. Weigh, 1 Eq. 
 Cas. Ab. 184; Bagshaw v. Spencer, 1 Ves. 144; Glover v. Monckton, 3 
 Bing. 113 ; 10 Moore, 453 ; Hawker v. Hawker, 3 B. & A. 537 ; Warter v. 
 Hutchinson, 5 Moore, 143 ; 1 B. & C. 121 ; Watson v. Pearson, 2 Exch. 
 594 ; Chamberlain v. Thompson, 10 Conn. 244 ; Doe v. Howland, 7 Cow. 
 277 ; Jackson v. Robins, 16 Johns. 537; Spessard v. Rohrer, 9 Gill, 262. 
 
 2 Bagshaw v. Spencer, 1 Ves. 144 ; Kirkland v. Cox, 94 111. 402. 
 
 » Booth V. Field, 2 B. & Ad. 556 ; Keen v. Walbank, id. 554 ; Brewster 
 V. Striker, 2 Comst. 19 ; Deering v. Adams, 37 Maine, 265. But see Doe 
 V. Cafe, 7 Exch. 675. 
 
 * Bagshaw v. Spencer, 1 Ves. 142 ; Keane v. Deardon, 8 East, 242 ; 
 Cadogan v. Ewart, 7 Ad. & El. 636 ; Tompkins v. Willan, 2 B. & A. 84; 
 Keen v. Walbank, id. 354 ; Garth v. Baldwin, 2 Ves. 646 ; Booth )•. Field, 
 2 B & Ad. 564 ; Rees v. Williams, 2 M. & W. 749 ; Shelly v. Eldin, 4 Ad. 
 & El. 582 ; Creaton v. Creaton, 2 Sm. & Gif. 386 ; Collier v. "Walters, L. 
 R. 17 Eq. 265. 
 
 (a) A deed for church uses to a of 1879, the word " heirs " was neces- 
 
 Catholic bishop and his successors in sarj' to convey a fee, unless it was 
 
 office, habendum to him " and his alleged and proved that it was omit- 
 
 successors and assigns forever,'' ted by mistake. Fulbright ?\ Yoder, 
 
 gives the bishop power to sell. 113 N. C. 456 ; Allen v. Baskerville, 
 
 Olcott V. Gabert, 86 Texas, 121. In 123 id. 126. 
 North Carolina, prior to the statute 
 
 470
 
 CHAP. X.] WHETHER TUUSTEES TAKE AN INHERITANCE. [§ 316. 
 
 not by the mere power. ^ Wliere it is possible that the trus- 
 tees may be under the necessity of exercising a power over 
 the fee, as by mortgage, a gift to them of the fee will not be 
 cut down;'-* and the rule is that all the trusts which trustees 
 must execute are to be executed out of the estate given them.^ 
 Lord Talbot said that it was wholly a matter of intention 
 whether the trustee should take a fee or not ;* hence, in other 
 cases, it has been said that if no intention a})peared upon 
 the face of the will that the trustees were to take anything 
 beyond what was necessary for the execution of the trust, the 
 estate, though limited to them and their heirs, would be cut 
 down to the limit of the trust. ^ So trustees may take only a 
 chattel interest in real estate, although limited to them and 
 their heirs, as where they are to hold it in trust only for a 
 short time to pay debts and legacies, and convey it to the 
 cestui que trust when he comes of age or at a certain time;^ 
 and this construction will be much stronger if the fee is not 
 limited to them.'^ The same construction as to the estate of 
 
 1 Fenwick v. Potts, 8 De G., M. & G. 506; Poad v. Watsou, 37 Eng. 
 L. & Eq. 112; Watkins v. Frederick, 11 II. L. Cas. 354; Iladdelsey r. 
 Adams, 22 Beav. 2G6. A power of apixjintment superadded to a life-es- 
 tate will not enlarge it into a fee ; and so a power of appointment added 
 to an estate of inheritance will not cut down the fee. Yarnell's App., 70 
 Penn. St. 342; Burleigh r. Clough, 52 X. II. 207. 
 
 2 Fenwick v. Potts, 8 De G., M. & G. 506 ; Horton v. Ilorton, 7 T. R. 
 652 ; Brown v. ^Yhiteway, 8 Hare, 156. 
 
 * Watson V. Pearson, 2 Exch. 593. 
 
 * Chapman v. Blissett, Forr. Cas. t. Talb. 145 ; Hawkins v. Luscombe, 
 2 Swanst. 375; Curtis v. Price, 12 Ves. 89 ; Collier v. McBean, L. R. 1 
 Ch. 80, 
 
 6 Doe V. Hicks, 7 T. R. 433 ; Nash v. Coates, 3 B. & A. 839 ; Boteler 
 V. Allington, 1 Bro. Ch. 72, is criticised in 7 T. R. 433, by Lord Kenyon; 
 Webster v. Cooper, 14 IIow. 499 ; Beaumont v. Salisbury, 19 Beav. 198. 
 
 « Ooodtitle V. Whitby, 1 Burr. 228; Warier r. Hutchinson, 1 B. & Cr. 
 721 ; Stanley i'. Stanley, 16 Ves. 491 ; Badder v. Harris. 2 Dowl. & Ry. 
 76 ; Wheedon v. Lea, 3 T. R. 41 ; Pratt v. Tiniins, 1 B. & Aid. 530 ; 
 Brune v. Martin, 8 B. & Cr. 497 ; Tucker v. Johnson, 16 Sim. 341 ; Glover 
 V. Monckton, 3 Bing. 13 ; Doe v. Davies, 1 Q. B. 430 ; Player r. Nicholls, 
 1 B. & Cr. 336 ; Cadogan v. Ewart, 7 Ad. & E. 136, 667. 
 
 T Pearce v. Savage, 45 Maine, 90 ; Boraston's Case, 3 Co. 19 ; Player 
 t;. NichoUs, 1 B. & Cr. 336. 
 
 471
 
 § 317.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 trustees will prevail where the limitation is to them and 
 their heirs, to their use and behoof forever, whether it is 
 contained in a deed or will.^ Where a gift was made to one 
 in trust for his wife for life, and to her heirs forever, subject 
 to her husband's curtesy, the trustee took an estate for the 
 life of his wife only, and at her death the trust ceased. ^ 
 
 § 317. Where a testator gave all his real and personal 
 estate to trustees, "their executors, administrators, and 
 assigns," in trust to pay several annuities, sums, and lega- 
 cies, on the deficiency of the personal estates out of the rents, 
 issues, and profits arising from the real estate, and gave the 
 residue over. Lord Hardwicke held that if the annual recep- 
 tion of the rents and profits would satisfy the purposes of the 
 trust, the trustees would take only a chattel interest in the 
 real estate ; but, as the land must be sold for the payment of 
 the legacies, the trustees took the fee.^ The court, however, 
 is always reluctant to enlarge an estate in trustees beyond 
 the terms of the gift ; and it will not be done unless it is 
 necessary for the execution of the trust* Where it is plain 
 that the trustees are to pay all charges, debts, legacies, annu- 
 ities, or other moneys out of the rents and profits of the 
 estate, and no anticipation of the income is necessary or con- 
 templated for that purpose, they will take a chattel interest, 
 or a term for years necessary for the purpose, and not the 
 legal inheritance ; ^ and if the testator use an inartificial 
 word, as that the trustees are to lend the estate, they will not 
 
 1 Hawkins v. Luscombe, 2 Swanst. 375; Curtis v. Price, 12 Ves. 89; 
 Venables v. Morris, 7 T. R. 342 ; Watkins v. Specht, 7 Cold. 585. But 
 see Cooper v. Kyiiock, L. R. 8 Ch. 402. 
 
 2 Noble V. Andrews, 37 Conn. 346. 
 
 8 Gibson v. Montfort, 1 Ves. 485 ; Amb. 93 ; Woodgate v. Flint, 44 
 N. Y. 21, n. 
 
 * Heardson v. Williamson, 1 Keen, 33 ; \^Tiite ?'. Sinapson, 5 East, 
 162; Wykham v. Wykham, 3 Taunt. 310; 11 East, 458; 18 Ves. 395, 
 416; Ackland v. Lutley, 9 Ad. & El. 879 ; Doe v. Claridge, 6 C. B. 641. 
 
 5 Cordall's Case, Cro. Eliz. 315 ; Carter i\ Bernadiston, 1 P. Wms. 
 589 ; Hitcliens v. Kitchens, 2 Vern. 404 ; Wykham v. Wykham, 18 Ves. 
 416; Heardson v. Williamson, 1 Keen, 33; Co. Litt. 42 a. 
 472
 
 § 319.] WHETHER tkustees take ax inheritance, [chap. X. 
 
 take a fee.' A trust to preserve contingent reniuiuders, 
 without limitation to heirs, will not be enlarged; lor the 
 trust does not require an estate of inheritance.^ 
 
 § 318. If, however, the subject-matter of the gift to trus- 
 tees is personal estate, the whole legal interest will vest in 
 them without words of limitation. They may generally dis- 
 pose of personal estate absolutely, being compelled to account 
 for it.^ 
 
 § 319. In England, a distinction is kept up between limi- 
 tations to trustees in wills and deeds. Thus it is said that 
 in wills there is more room for construction to ascertain and 
 carry into effect the intention of testators, and that in deeds 
 the rules of property are carried into effect with more strict- 
 ness. So it is said, that if in a deed an estate is given to a 
 trustee and his heirs, there is no power to abridge the estate 
 on the ground that the pur])Oses of the trust do not require 
 a fee in the trustees ; and that, on the other hand, when an 
 estate is given by deed to a trustee in trust without words of 
 inheritance, there is no authority to enlarge the estate in the 
 trustee because the purposes of the trust seem to require a 
 larger estate. There is a very respectable amount of author- 
 ity, even in England, that an estate given to trustees and 
 their heirs in trust, by a deed, may be restricted to an estate 
 for the life of another, where the purposes of the trust can 
 
 1 Payne v. Sale, 2 Dev. & Bat. Eq. 455. 
 
 2 Thong V. Bedford, 1 Bro. Ch. 14; Webster r. Cooper, 14 How. 499; 
 Beaumont r. Salisbury, 19 Beav. 198 ; Co. Litt. 290 b; Butl. n. viii. 
 
 8 Dinsmorc i\ Biggert, 9 Barr, lo5 ; Nicoll r. Walworth, 1 Donio, 385; 
 Chamberlain v. Thompson, 10 Conn. 244 ; Combry v. ^McMichael, 19 Ala. 
 751 ; Elton i-. Shepherd, 1 Bro. Ch. 531 ; 2 Jarm. Pow. Dev. C31 ; Doe r. 
 Willan, 2 B. & Aid. 84 ; Smith v. Thompson, 2 Swan, 386 ; Foster r. Coe, 
 4 Lans. 59 ; Fellows v. Heermans, id. 230 ; and Aiken r. Smith, 1 Sneed, 
 301, held that when personalty was limited to trustees, their heirs and 
 executors, in trust for a married woman for life, and after her death to 
 be equally divided among her children or to be conveyed to her children, 
 the trustee took an estate for her life only, and that at her death the 
 trust ceased. These cases, however, are not consi^iteut with principle or 
 authority, and probably would not be followed. 
 
 473
 
 § 320.] ESTATE OF THE TRUSTEE. [CHAP. X. 
 
 all be answered by such an estate in the trustee.^ in the 
 cases sustaining the power to abridge the legal operation of 
 the words of inheritance in a deed, there were some further 
 limitations of the estate, either to the trustees or to third 
 persons, inconsistent with the idea of a fee in the trus- 
 tees. ^ The authorities, however, greatly preponderate, that 
 courts cannot look to the equitable interests given or created 
 by a deed, in order to determine whether the trustee under it 
 takes a fee or not, if there are plain words of inheritance in 
 it. Lord Eldon said, that it appeared to him very difficult 
 to apply the doctrine to a deed, and he refused thus to cut 
 down an estate.^ While there is this conflict of authority 
 upon the point, whether an estate given in fee by deed to 
 trustees can be abridged to the extent of the trust, there is 
 said to be no authority in England that an estate given by a 
 deed to trustees without words of inheritance can be enlarged 
 to suit the purposes of the trust ;^ although there is one 
 expression by Lord Hardwicke that such enlargement is 
 within the power of the court when the circumstances re- 
 quire it.^ 
 
 § 320. In the United States, the distinction between deeds 
 and wills, in respect to the trustees' estate, has not been 
 kept up; and the general rule is, that, whether words of in- 
 heritance in the trustee are or are not in the deed, the trustee 
 will take an estate adequate to the execution of the trust, and 
 no more nor less.^ Courts will abridge the estate where 
 
 1 Curtis V. Price, 12 Ves. 89 ; Venables v. INIorris, 7 T. R. 342, 438 ; 
 Doe V. Hicks, id. 437 ; Brune i\ Martyn, 8 B. & Cr, 497 ; Beaumont v. 
 Salisbury, 19 Beav. (198, where the authorities were commented on); 
 Lewis V. Rees, 3 K. & J. 132 ; Cooper v. Kynock, L. R. 8 Ch. 403. 
 
 2 Ibid. 
 
 3 Wykham r. Wykham, 18 Ves. 395 ; Colomore v. Tyndall, 2 Y. & J. 
 605; Co. Litt. 20 b; Butl. n. viii. ; Dinsmore v. Biggert, 9 Barr, 123; 
 Lewis V. Rees, 3 K. & J. 132, where the authorities are reviewed by 
 Wood, V. C. 
 
 * Potiow V. Fricker, 6 Exch. 570 ; Hill on Trustees, 251. 
 
 5 Villiers v. Villiers, 2 Atk. 72. 
 
 6 King V. Parker, 9 Cush. 71 ; Steams v. Parker, 10 Met. 32 ; Gould v, 
 
 4:74.
 
 CHAP. X."| WHETHER TRUSTEES TAKE AN INHERITANCE. [§ 320. 
 
 words of inheritance arc used, if the execution of the trust 
 docs not require a fee; and so they will enlarge the estate if 
 no words of inlicritance arc used in a deed.* In examining 
 the cases, however, where a trust ceases upon the death of a 
 tenant for life, or upon the death of a person for whom the 
 property was held in trust, care must be taken that this ju'in- 
 ciple is not confounded with another. Thus, where an estate 
 is given to trustees and their heirs in trust to pay the in- 
 come to A. during her life, and at her decease to hold the 
 same for the use of her children or her heirs, or for the use 
 of other persons named, the trust ceases upon the death of 
 A. for the reason that it remains no longer an active trust; 
 the statute of uses immediately executes the use in those 
 who are limited to take it after the death of A., and the 
 trustees cease to have anything in the estate, not because the 
 court has abridged their estate to the extent of the trust, but 
 because, having the fee or legal estate, the statute of uses 
 has executed it in the cestui que trust.^ But where the opera- 
 tion of the statute of uses docs not put an end to the trust. 
 
 Lamb, 11 INIet. 84 ; Cleveland v. Ilallett, G Cush. 403 ; Att. Gen. v. Federal 
 Street Meeting House, 3 Gray, 1 ; Wright r. Delafield, 23 Barb. 498; Fisher 
 V. Fields, 10 Johns. 105 ; Welch v. Allen, 21 Wend. 147 ; Rutledge v. Smith, 
 1 Busb. Eq. 283 ; Liptrot v. Holmes, 1 Kelly (Ga.), 390 ; Cooper v. Kyuock, 
 L. II. 8 Ch. 402. 
 
 1 Neilson r. Lagow, 12 How. 110; North v. Philbrook, 34 Maine, 537 ; 
 Rutledge v. Smith, 1 Busb. Eq. 283; Cleveland i'. Hallett, 6 Cush. 406. 
 See to the contrary, Miles v. Fisher, 10 Ohio, 1. 
 
 2 Parker v. Converse, 5 Gray, 336 ; Greenwood v. Coleman, 34 Ala. 
 150 ; Churchill v. Corker, 25 Ga. 479. See Vallette v. Bennett, 69 111. 
 336. And whenever the active duties required of the trustee have been 
 performed and the purpose of the trust ceases, having no longer any 
 proper object to serve, the legal estate is executed in the cestui que trust, 
 •without further action by the court or the trustee. Stoke's App., SO Penn. 
 St. 337 ; Dodson r. Ball, 60 id. 492 ; Wells v. IMcCall, 64 id. 207 ; Yar- 
 nell's App., 70 id. 335; Meacham v. Steele, 93 111. 135. And this is 
 always so when an estate of inheritance or an absolute estate is put in 
 trust for coverture. Megargee v. Naglee, 64 Penn. St. 216; Lynch v. 
 Swayne, 83 111. 336. If the trust property is to be sold and proceeds dis- 
 tributed to the beneficiaries, there is still an active trust, and the estate is 
 not executed iu the cestui. Kirklaud v. Cox, 04 111. 402 ; Read i-. Power, 
 12 R. I. 16. 
 
 475
 
 § 320.] ESTATE OF THE TRUSTEE. [CHAP, X. 
 
 and where it is necessary to enlarge an estate although there 
 are no words of inheritance, courts have been obliged to re- 
 sort to different expedients to avoid the technical rules of 
 law upon the subject of inheritances.^ In those States where 
 no technical or other words are necessary to convey a fee no 
 difficulties arise. 
 
 1 Williams v. First Presby. Soc, 1 Ohio St. 498; Rutledge v. Smith, 
 1 Busb. Eq. 283 ; Co. Litt. 385, 386; 1 Prest. Touchstone, 182; Rawle ou 
 Covenants, 344; Shaw v. Galbraith, 7 Penu. St. 112. 
 
 476
 
 CHAP. XI.] PROPERTIES OF THE LEGAL ESTATE. [§ 321. 
 
 CHAPTER XI. 
 
 PROPERTIES AND INCIDENTS OF THE LEPxAL ESTATE IN THE 
 HANDS OF TRUSTEES. 
 
 § 321. Conimon-law properties attach to estates in trustees. 
 
 § 322. Dower ami curtesy in trust estates. 
 
 §§ 323, 324. Dower and curtesy in equitable estates of cestui que trust. 
 
 § 325. Forfeiture and escheat of trust estates. 
 
 § 326. Trustees must perform duties of legal owners. 
 
 § 327. Forfeiture and escheat of the equitable estates of cestui que trust. 
 
 § 328. Suits concerning legal title must be in name of trustee. 
 
 § 329. Who has possession and control of trust estates. 
 
 §§ 330, 331. Who has possession of personal estate. Rights and privileges of 
 trustees. 
 
 § 332. Who proves debt against bankrupt. 
 
 § 333. Who has the right of voting. 
 
 § 334. Trustee may sell the legal estate. 
 
 §335. May devise the legal estate. But see §341. 
 
 § 336. By what words in a devise the trust estate passes. 
 
 § 337. Where a trust estate jjasscs by a devise, and where not. 
 
 § 338. The interest of a mortgagee in fee. 
 
 § 339. Propriety of devising a trust estate. 
 
 § 340. Whether a devisee can execute the trust. 
 
 § 341. Rule in New York, &c. 
 
 § 342. Where a testator has contracted to sell an estate. 
 
 §§ 343, 344. Rights of the last surviving trustee, and his heirs or executors. 
 
 § 345. Trust property does not pass to bankrupt trustee's assignee. 
 
 § 346. A disseizor of a trust estate is not bound by the trust. 
 
 §§ 347, 348. Merger of the equitable and legal titles. 
 
 §§ 349, 350. Presumption of a conveyance or surrender by trustee to cestui que 
 
 trust. 
 §§ 351-353. Where the presumption will be made, and where not. 
 
 § 354. Must be some evidence on wliicli to found the presumption. 
 
 § 355. Is made in favor of an equitable title, not against it. 
 
 § 321. As a general rule, the legal estate in the hands of 
 a trustee has at common law precisely the same properties, 
 characteristics, and incidents, as if the trustee were the abso- 
 lute beneficial owner. The legal title vests in him, together 
 with all the appurtenances and all the covenants that run 
 with the land.^ The trustee may sell and devise it, or mort- 
 
 ^ Dcvin i". Ilenderchott, 32 Iowa, 19"2. 
 
 •477
 
 § 321.] PROPEKTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 gage it, or it may be taken on execution. It may be for- 
 feited, and it will escheat on failure of heirs, and so it will 
 descend to heirs on the death of the trustee.^ All these 
 properties and incidents attach to the legal estate at common 
 law, whether in the hands of a trustee or of an absolute 
 owner; but these incidents do not generally interfere with 
 the proper execution of the trust, for all conveyances and all 
 incumbrances made or imposed upon the estate by the trus- 
 tee, for other purposes than those of the trust, or in breach 
 of the trust, are utterly disregarded by a court of equity, 
 whatever may be the effect of such conveyances or incum- 
 brances in a court of common law.^ And as the trustee may 
 in a court of law, as a general rule, deal with the legal 
 estate in his hands, as if he was the absolute owner, so the 
 cestui que trust in a court of equity may deal with the equi- 
 table estate in him: he is the beneficial and substantial 
 owner, and in the absence of any disability, — that is, if he 
 is sui juris, — he may sell and dispose of it ; and any legal 
 conveyance of it will have in equity the same operation upon 
 the equitable estate as a similar conveyance of the legal estate 
 would have at law upon the legal estate.^ (a) While a trust 
 for the general benefit of one sui juris, not confined to main- 
 tenance, may create a transmissible interest, yet a trust for 
 the maintenance of an imbecile son will not create a trans- 
 missible interest, although the will contains a limitation 
 over to the issue of such son.* In case of a trust for the use 
 of a married woman as if she were sole, the husband has no 
 control over the property, and cannot of himself lease or 
 otherwise dispose of it.^ 
 
 1 Zabriskie v. Morris & Essex R. Co., 33 N. J. Eq. 22. 
 
 2 Leake v. Leake, 5 Ir. Eq. 366. 
 
 8 Matthews v. Wardel, 10 G. & J. 443; Burgess v. Wheate, 1 Eden, 
 226; Croxall v. Sherard, 5 Wall. 268; Reid v. Gordon, 3.5 Md. 184; Bote- 
 ler V. Allington, 1 Bro. Ch. 72; Campbell v. Prestons, 22 Grat. 396. 
 
 * Gray v. Corbit, 4 Del. Ch. 135. 
 
 6 Panill V. Coles, 81 Va. 380. 
 
 (a) See Robinson v. Pierce (Ala.), 24 So. 984. 
 
 478
 
 CIIAr. XI.] DOWEU AND CURTESY IN EQUITABLE ESTATES. [§ 323. 
 
 § 322. The legal estate in the hands of a trustee was sub- 
 ject at common law to dower and curtesy ; ^ but, as those who 
 take in dower or curtesy take by operation of law, they are 
 subject to the same equities as the original trustee ; therefore, 
 if the widow of a trustee should take dower in a trust estate, 
 she would take her dower suljjcct to the same trusts that the 
 estate was under in the hands of her husband. It would 
 thus be of no benefit to her; and it is now understood to be 
 the equitable rule, that a widow has no dower in the lands 
 held by her husband as trustee, and the same observations 
 apply to the right of curtesy in trust estates.2(rt) If, how- 
 ever, the equitable estate meets the legal estate in the same 
 holder, the equitable merges in the legal estate, and dower 
 and curtesy will attach;^ and so they will attach so far as 
 there is a beneficial interest in the trustee.* 
 
 § 323. "While speaking upon this subject, it may be said 
 that, until lately, in England, the widow of a cestui que trust 
 had no dower in his equitable estate, or his equitable fee in 
 lands. ^ A widow was not dowablc of a use, and lands were 
 frequently conveyed to uses to defeat the right of dower. ^ 
 
 ^ Bennett v. Davis, 2 P. Wms. 319; Noel v. Jevon, Freem. 43; Nash 
 V. Preston, Cro. Car. 100; Casborne v. English, 2 Eq. Cas. Ab. 728; Ilinton 
 V. Ilinton, 2 Ves. G31 ; 1 Sugd. V. & P. 358. 
 
 2 King V. Bushnel, 121 111. 656 ; Derush v. Brown, 8 Ham. 412; Green 
 V. Green, 1 id. 249 ; Cooper v. Whitney, 3 Hill, 97 ; Powell v. Monson, etc., 
 
 3 Mason, 364; Bartlett v. Gouge, 5 B. Mon. 152; Cowman v. Hall, 3 Gill 
 & J. 398; llobison v. Codmau, 1 Sumn. 129; Dean v. Mitchell, 4 J. J. 
 Marsh. 451 ; Ray v. Pung, 5 B. & Aid. 561 ; Gomez v. Tradesmen's Bank, 
 
 4 Sandf. 102. 
 
 « Ilopkinson v. Dumas, 42 N. II. 303. 
 
 * 4 Kent, 43, 46 ; Prescott i'. Walker, 16 N. H. 343. 
 
 6 Dixon V. Saville, 1 Bro. Ch. 326; Maybury v. Brien, 15 Pet. 38 ; 
 D'Arcy r. Blake, 2 Sch. & Lef. 387; 2 Eq. Cas. Ab. 384 ; 4 Kent, 43; 1 
 Rop. Hus. & Wife, 354; Banks v. Sutton, 2 P. Wms. 716, was overruled; 
 Park on Dow. 138. In Pennsylvania, however, a wife can have dower iu 
 both legal and equitable estates. Dubs v. Dubs, 31 Penn. St. 154. 
 
 Wms. Real Prop. 134-136 ; Perkins, § 349. 
 
 (a) See Lewin on Trusts (10th ed.), 900; 1 Ames on Trusts (2d 
 ed.), 374, 375, 383. 
 
 479
 
 CHAP. XI.] PROPERTIES OF THE TRUST ESTATE. [§ 324 
 
 Thus, if a man before marriage conveyed his lands to trustees 
 upon trust for himself and his heirs in fee, or if after mar- 
 riage he purchased lands, and took the conveyance to a trus- 
 tee upon a trust for himself and his heirs, his wife had no 
 right of dower. 1 But if lands were settled on trustees upon 
 a trust for a woman and her heirs in fee, her husband was 
 entitled to his curtesy. ^ This anomaly grew up from an 
 attempt to give to equitable estates the same incidents that 
 belong to legal estates ; but when it was proposed to assign 
 dower to a widow out of her husband's equitable estate, it 
 was found that it would disarrange so many titles and estates 
 that the attempt was abandoned. The same inconvenience 
 did not arise in allowing curtesy to a husband, for the reason 
 that a wife could not convey her equitable interests without 
 her husband joining in the act, and thus, to allow him cur- 
 tesy would not affect titles to any considerable extent.^ But 
 by a late statute a wife is now dowable in equity of all the 
 lands in which her husband dies possessed of a beneficiary 
 interest.* 
 
 § 324. The general rule in the United States is, that a wife 
 is dowable in equity in all lands to which the husband had 
 a complete ^ equitable title at the time of his death. ^ (a) This 
 
 1 Co. Litt. 208 a (n. 105). 
 
 2 D'Arcy v. Blake, 2 Sch. & Lef. 387; Chaplin v. Chaplin, 3 P. Wms. 
 234 ; Att. Gen. v. Scott, t. Talb. 139 ; Watt v. Ball, 1 P. Wms. 108 ; Sweet- 
 apple V. Bindon, 2 Vern. 536 ; Cunningham r. Moody, 1 Ves. 174 ; Dodson 
 V. Hay, 3 Bro. Ch. 405. 
 
 3 Chaplin v. Chaplin, 3 P. Wms. 234; Att. Gen. v. Scott, t. Talb. 139; 
 Burgess v. Wheat, 1 Ed. 196; Dixon v. Saville, 1 Bro. Ch. 327; Banks v. 
 Sutton, 2 P. Wms. 713 ; Casburne v. Casburne, 2 J. & W. 204 ; Watt v. 
 Ball, 1 P. Wms. 109 ; D'Arcy v. Blake, 2 Sch. & Lef. 388. 
 
 * 3 & 4 Wm. IV., c. 105 ; 1 Spence, Eq. Jur. 505. 
 
 5 It must be such a title as equity would enforce. Efland v. Efland, 96 
 N. C. 488. 
 
 6 Shoemaker v. Walker, 2 Serg. & R. 554 ; Dubs v. Dubs, 31 Penn. St. 
 154 ; Reid v. Morrison, 12 Serg. & R. 18 ; Miller v. Beverly, 1 Hen. & M. 
 
 (a) Land purchased by a husband another person by his direction to 
 with his own money and conveyed to defeat dower is, under a statute by 
 480
 
 CHAP. XI.] DOWER AND CURTESY IN EQUITABLE ESTATES. [§ 324. 
 
 rule, it is presumed, would aitply in nil the States where the 
 coinniou-law i»i'inci])les of dower previiil, except in Maine aiid 
 Massachusetts, where a wife is not entitled to dower in Ikm- 
 husband's ecjuitaljle estates.^ The husband also in most 
 States has curtesy in the equitable estates of his wife.^ But 
 the wife must be actually in possession of her equitable in- 
 terest: a mere right not in possession is not enough to entitle 
 the husband to curtesy.^ But the husband's curtesy will not 
 
 3CS ; Clairbornc r. Henderson, 3 id. 322 ; Lawson v. Morton, 6 Dana, 
 •J71 ; Bowie v. Berry, 1 Md. Ch. 452; Miller r. Stump, 3 Gill, 304; Ilaw- 
 ley I'. James, 5 Taige, 318; Thompson v. Thompson, 1 Jones (N. C), 
 430; Gully v. Ray, 18 Ky. 113; Barnes v. Gay, 7 Iowa, 26; Lewis v. 
 James, S Humph. 537 ; Kowton c. Rowton, 1 Hen. & M. 92 ; Gillespie v. 
 Somerville, 3 St. & P. 447 ; Robinson c. .Miller, 1 B. Mon. 93 ; Smiley v. 
 Wright, 2 Ohio, 512 ; Davenport v. Farrar, 1 Scam. 314 ; Bowers v. 
 Keesecker, 14 Iowa, 301 ; Peay v. Peay, 2 Rich. Eq. 409 ; Mershon 
 V. Duer, 40 N. J. Eq. 333, a resulting trust in husband. 
 
 1 Hamlin v. Hamlin, 16 Maine, 141; Reed v. Whitney, 7 Gray, 533; 
 Lohdell t'. Hayes, 4 Allen, 187. 
 
 - Tillinghast v. Coggeshall, 7 R. I. 383: Nightingale v. Hidden, id. 
 115; Dubs V. Dubs, 31 Penn. St. 154; Alexander v. Warrance, 17 Mo. 
 228; Robinson r. Codman, 1 Suran. 128 ; Gardner v. Hooper, 3 Gray, 404 ; 
 Houghton V. Ilapgood, 13 Pick. 154; Rawlings o. Adams, 7 Md. 54 ; and 
 see Fletcher v. Ashburner, 1 Bro. Ch. 503, and Amer. notes ; 1 Green. 
 Cruise, 147, n ; Gushing v. Blake, 30 N. J. Eq. 689. 
 
 ^ Parker v. Carter, 4 Hare, 413 ; Sartill v. Robeson, 2 Jones, Eq. 510 ; 
 Pitt V. Jackson, 2 Bro. Ch. 51 ; Morgan v. Morgan, 5 Madd. 408; 4 Kent, 
 Com. 31. 
 
 which such a naked trust " is the cestui que trnat cannot be ."seized 
 
 deemed a direct convej'ance or thereof daring the parties' married 
 
 devise to the beneficiary," subject life. Kenyon v. Kenyon, 17 R. I. 
 
 to dower. Stroup v. Stroup, 140 539. An inchoate right of dower 
 
 Ind. 179, 185. Contra, xinder the is not such an interest in land that, 
 
 New York statute. Phelps v. Phelps, when the land is taken by the right 
 
 143 N. Y. 197. The widow of a of eminent domain, the wife can 
 
 cestui que trust is not entitled to apply to a court of equity to obtain 
 
 dower when there is an equitable the benefit of such interest. Flynn 
 
 conversion of land bought by the v. Flynn, 171 Mass. 312 ; see 
 
 trustee into personalty. Hunter v. Wheeler v. Kirtlaud, 27 N. J. Eq. 
 
 Anderson, 152 Penn. St. 3S6. So 534. 
 when trust realty is so devised that 
 
 VOL. I. — 31 4S1
 
 § 325.] PROPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 be defeated by the negligence of the trustee, as where money 
 is directed to bo hxid in land in such manner that the hus- 
 band would have been entitled to his curtesy, and the trustee 
 neglected to invest the money during the life of the wife, 
 the husband was held to be entitled to his curtesy. ^ Nor will 
 a trust for the separate use of the wife exclude the husband's 
 curtesy, if at her decease the estate is to go to her heirs. ^ 
 
 § 325. At common law if a person holding land committed 
 treason or felony, he forfeited his land to the crown ; and if 
 he died without heirs, the land escheated to the crown or to 
 his superior lord. Exactly the same incidents applied to 
 land held in trust for another, if the trustee committed a 
 treason or felony, or died without heirs. ^ This rule of law 
 has been changed in England by statute.* At the present 
 day the land either will not be forfeited or escheat, or the 
 crown or superior lord will take it subject to the same equi- 
 ties under which the trustee held it. In the United States, 
 either the land would not be forfeited or escheat, by reason 
 of the failure or incapacity of the trustee or his heirs, or the 
 State would hold it, subject to all the equities it was under 
 in the hands of the trustee. It might not go to the State, 
 for the reason that, if trustees are wanting, courts will ap- 
 point new trustees ; and if, for any reason, the trust estate 
 should vest in the State, care would be taken that all the 
 rights of the cestui que trust should be protected. There are 
 
 ^ Sweetapple v. Bindon, 2 Vern. 536; Dod?on v. Hay, 3 Bro. Ch. 405; 
 Parker v. Carter, 4 Hare, 413; Casborne v. Scarfe, 1 Atk. 609. 
 
 2 Roberts v. Dixwill, 1 Atk. 609; Hearle v. Greenbank, 3 Atk. 715; 
 Morgan v. Morgan, 5 Madd. 408 ; Follett v. Tyrer, 14 Sim. 125; Bennett 
 V. Davis, 2 P. Wms. 316; Tillinghast v. Coggeshall, 7 R. I. 383. 
 
 3 Burgess v. Wheat, 1 Ed. 177 ; 1 Bro. Ch. 123 ; Hovenden v. Annesley, 
 2 Sch. & Lef. 617; Eales v. England, Pr. Ch. 200 ; Pawlett v. Att. Gen. 
 Hard. 467; Att. Gen. v. Leeds, 2 M. & K. 243; Penn v. Baltimore, 1 Ves. 
 453; Williams v. Lonsdale, 3 Yes. Jr. 7.52; Reeves v. Att. Gen., 2 Atk. 
 223; Geary I'. Bearcroft, Cart. 67-, King u. Mildmay, 5 B. & Ad. 254; 
 AVilks's Case, Lane, 54; Scoundenr. Hawley, Comst. 172. 
 
 ^ 4 & 5 Wm. IV. c. 23; 39 & 40 Geo. III. c. 88; Hughes v. Wells, 9 
 Hare, 749 ; 14 Vic. c. 60. 
 482
 
 CHAP. XI.] ESCHEAT AND FORFEITURE OF TRUST ESTATES. [§ 327. 
 
 statutes in most of the States determining the rights of the 
 cestui que trust in such cases. 
 
 § 326. The trustee is so far clothed with the legal title 
 and all its iiicidouts, that he must perform all the duties of 
 the holder of the legal estate.^ 
 
 § 327. Before the statute of uses, the estate of the cestui 
 que use was not forfeited for crime, and did not escheat upon 
 failure of heirs; but the feoffee to uses held the estate abso- 
 lutely as his own. 2 And the same rule was afterwards fol- 
 lowed in regard to trusts.^ Although it was enacted by 
 statute that the cestui que use or cestui que trust should for- 
 feit his equitable interest upon conviction for treason,^ yet 
 the law never went further; and if the cestui que trust com- 
 mitted a felony^ so that he could no longer claim his equi- 
 table rights, the trustee continued to hold the lands for his 
 own use discharged of the trusts.^ And so it was held, after 
 great debate in Burgess v. Wheat, that if the cestui que trust 
 left no heirs, the trust estate of inheritance did not escheat, 
 but that the trustee thenceforth held the estate discharged of 
 the trust. ^ This case has been doubted,'' but it has been 
 followed as the law. ^ (a) This is upon the principle, that 
 there is no want of a tenant to the land, the trustee being 
 clothed with all the rights of ownership against all the world 
 
 1 Wilson V. Iloare, 2 R. & Ad. 350; Trinity Coll. v. Brown, 1 Vern. 441 ; 
 
 2 Ld. Raym. 904 ; Bath v. Abney, 1 Dick. 2G0 ; Carr v. Ellison, 3 Atk. 
 73 : 1 c/u. Dig. 305. 
 
 2 Burgess v. Wheat, 1 Ed. 190, per Sir Thomas Clarke, M. R. 
 8 Att.°Gen. v. Sands, 1 Hale, P. C. 249. 
 
 * 33 Hen. VTTT. c. 20 ; 1 Hale, P. C 248. 
 6 Att. Gen. v. Sands, 1 Hale, P. C 249. 
 
 6 Burgess v. Wheat, 1 Ed. 177; 1 Black. 123 ; 1 Bro. Ch. 123. 
 •^ Middleton v. Spicer, 1 Bro. Ch. 201 ; Fawcet r. Lowther, 2 Ves. 300; 
 Sweeting v. Sweeting, 33 L. J. Ch. 211. 
 
 8 Taylor v. Haygarth, 14 Sim. 8 ; 8 Jur. 185; Henchman v. Att. Gen., 
 
 3 Myl."& K. 485; Onslow v. Wallis, 1 Mac. & G. 506; 1 Hall & T. 
 513; Rittson v. Stordy, 3 Sm. & Gif. 230; Barrow i'. Wadkin, 24 
 Beav. 1. 
 
 (rt) See In re Bacon's Will, 31 Ch. D. 460. 
 
 483
 
 § 328.] PROPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 except the cestui que trust, and those claiming under him. 
 But this principle docs not apply to chattels, where there 
 can be no tenant, nor to leaseholds,^ nor to an equity of re- 
 demption. ^ In the United States, trustees would hold per- 
 sonal property subject to the right of the State as ultima 
 h.ceres, in case the cestui que trust died without heirs or next 
 of kin; and it is conceived that they would hold real estate 
 under the same rule.^ 
 
 § 328. It is the duty of the trustee to defend and protect 
 the title to the trust estate ; and, as the legal title is in him, 
 he alone can sue and be sued in a court of law ; the cestui que 
 trust, the absolute owner of the estate in equity, is regarded 
 in law as a stranger.* The rule is carried to the extent that 
 the grantee of the trustee can alone maintain an action upon 
 the legal title, although the conveyance to him was a breach 
 of the trust. ^ To protect himself, the trustee must defend the 
 
 1 Middleton v. Spicer, 1 Bro. Ch. 201 ; Walker v. Denne, 2 Ves. Jr. 
 170 ; Barclay v. Russell, 3 Ves. 424 ; Henchman v. Att. Gen., 3 Myl. & 
 K. 485 ; Taylor i'. Haygarth, 14 Sim. 8 ; Cradock v. Owen, 2 Sm. & Gif. 
 241; Bishop v. Curtis, 17 Jur. 23; Powell v. Merritt, 22 L. J. 208; 
 1 Sm. & Gif. 381. 
 
 2 Down V. Morris, 3 Hare, 394. 
 
 8 McCaw V. Galbraith, 7 Rich. L. 75; Darrah v. McNair, 1 Ash. 236; 
 Matthews v. Ward, 10 G. & J. 443; 4 Kent, 425; Crane v. Ruder, 21 
 Mich. 25. 
 
 4 ]\Iay V. Taylor, 6 M. & Gr. 261 ; Gibson v. Winter, 5 B. & Ad. 96 ; 
 Allen V. Iralett, Holt, 641 ; Goodtitle v. Jones, 7 T. R. 47 ; Baptist Soc. 
 V. Hazen, 100 Mass. 322; Cox v. Walker, 26 Me. 504; Beach v. Beach, 14 
 Vt. 28; Moore v. Burnet, 11 Ohio, 334 ; Wright v. Douglass, 3 Barb. 59 ; 
 Matthews v. W^ard, 10 G. & J. 443; Mordecai v. Parker, 3 Dev. 425 ; Finn 
 V. Hohn, 21 How. 481 ; Hooper v. Scheimer, 23 How. 235 ; Fitzpatrick v. 
 Fitzgerald, 13 Gray, 400 ; Chapin v. Universalist Society, 8 Gray, 581; 
 Crane v. Crane, 4 Gray, .323; Davis v. Charles River Railroad, 11 Cush. 
 506; Raymond v. Holden, 2 Cush. 268; Moody v. Farr, 33 Miss. 192 ; 
 Adler v. Sewell, 20 Ind. 598; Western R. R. Co. v. Nolan, 48 N. Y. 517; 
 Church V. Stewart, 27 Barb. 553 ; Ryan v. Bibb, 46 Ala. 323 ; Ponder v. 
 McGruder, 42 Ga. 242 ; Kirkland v. Cox, 94 111. 402. 
 
 5 Reece v. Allen, 5 Gilm. 241; Taylor v. King, 6 Munf. 358; Canoy u. 
 Troutman, 7 Ired. 155; Gary r. AVhitney, 48 Maine, 516; Matthews y. 
 McPherson, 65 N. C 189 ; Phillips v. Ward, 51 Mo. 295. 
 
 484
 
 CHAP. XI.] POSSESSION AND MANAGEMENT. [§ 328. 
 
 title if he is sued. It is his duty to give the cestui que trust 
 notice of a suit hostile to his interests, and to defend the 
 action in good faith. To act otherwise would be a breach of 
 trust. ^ A trustee may also maintain an action for any tres- 
 pass upon the land;^ but if the centui que trust is in the 
 actual [jossession of it, he may maintain an action for any 
 injury done to his possession. ^ If, however, the trust is 
 terminated by operation of law or otherwise, and the prop- 
 erty has vested in the cestui que trust, he may after that time 
 maintain an action upon the title ;^ and so if there has been 
 a conveyance or surrender by the trustees to the cestui que 
 trust,^ or a presumption of a surrender from the fact that the 
 purposes of the trust are all accomplished.*' (a) If the trustee 
 is in possession, he must sue for all injuries to the posses- 
 sion, and he is the proper person to maintain the claim for 
 damages for flowing the land under the mill acts, or for 
 taking it for railroad purposes, turnpikes, or public high- 
 ways." (J) In Pennsylvania, however, the action of eject- 
 ment is an equitable action, and the cestui que trust may 
 maintain the suit if he is entitled to possession, or it may 
 be maintained by the trustee.^ (c) In a few States there are 
 
 1 Mackay v. Coates, 70 Peiin. St. 350 ; Warland v. Colwell, 10 R. I. 
 3G9. 
 
 2 Walker v. Fawcett, 7 Ired. 44. 
 
 8 Cox V. Walker, 26 Maine, 504 ; Stearns v. Palmer, 10 Met. 32; Second 
 Cong. Soc. North Bridgewater i'. Waring, 24 Pick. 309. 
 
 * Nicoll V. Walworth, 4 Denio, 385 ; Matthews v. McPherson, 65 X. C 
 189 ; Lockhart v. Canfield, 49 Miss. 470. 
 
 ^ Den ex d. Obert v. Bordine, 1 Spencer (N. J.), 394 ; Hopkins v. 
 Ward, 6 :\lunf. 38 ; Doggett l: Hart, 5 Fla. 215. 
 
 « Ibid. 
 
 ' Davis V. Charles River R. R. Co., 11 Cush. 506 ; WoodrufE v. Orange, 
 32 N. J. 49. 
 
 8 School Dir. v. Dunkleberger, 6 Barr. 29 ; Presbyterian Cong. v. 
 
 (d) If a married woman assigns (i) See Lewin on Trusts (10th 
 
 a mortgage to a trustee, and the ex- ed.), 828 ; 1 Ames on Trusts (2d 
 
 tent of the trust cannot be definitely ed.), 255. 
 
 determined, the trust is presumed to (c) See Chamberlain r. Maynes, 
 continue only during her coverture. 180 Penn. St. 39 ; Simmous c. Rich- 
 Bradford V. Burgess (R. I.), 38 Atl. ardson, 107 Ala. 697. 
 975. 
 
 485
 
 § 329.] PROPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 statutes or codes which enact that parties beneficially inter- 
 ested in the subject-matter of the suit shall be made the par- 
 ties' plaintiffs; but the right or duty of trustees, or persons 
 holding the legal title in a fiduciary capacity, to sue is gen- 
 erally provided for.^ Merely nominal trustees, as officers of 
 a town or parish, cannot sue in their own name.^ 
 
 § 829. Whether the trustees are entitled to the possession, 
 control, and management of real estate, as against the cestui 
 que trust, depends upon the whole scope of the settlement, 
 and the nature of the duties which the trustees are required 
 to perform. A fund in trust for the sole use of a person, 
 with power to dispose of the fund by will, does not give the 
 cestui a right to recover possession of the fund from the trus- 
 tee.^ If the entire interest is vested in the trustees, and they 
 are to manage the property, keep it insured, and pay taxes, 
 premiums, annuities, and other charges out of the income, 
 the court will imply that the trustees are to have the posses- 
 sion, and will not take it from them, unless there is some 
 very clear intention expressed to control such directions.* (a) 
 
 Johnston, 1 Watts & S. 56 ; Kennedy v. Fury, 1 Dall. 76 ; Hunt v. Craw- 
 ford, 3 Pa. 426 ; Caldwell v. Lowden, 3 Brews. 63. 
 
 1 See Codes of New York and Ohio, McGill v. Doe, 9 Ind. 306. 
 
 2 Regina v. Shee, 4 Q. B. 2 ; Manchester v. Manchester, 17 Q. B. 859; 
 Queen r. Commissioners, 15 Q. B. 1012 ; Connor v. New Albany, 1 
 Blackf. 88. 
 
 3 Barkley v. Dosser, 15 Lea (Tenn.) 529. 
 
 * Tidd V. Lister, 3 Madd. 429 ; Naylor v. Arnitt, 1 R. & M. 501 ; 
 Young V. Miles, 10 B. Mon. 290; Blake i-. Bunbury, 1 Yes. Jr. 194, 514; 
 4 Bro. Ch. 21 ; Jenkins v. Milford, 1 J. & W. 629 ; Moseley v. Marshall, 
 22 N. Y. 200 ; Marshall v. Sladen, 4 De G. & Sm. 468 ; Matthews v. Mc- 
 Pherson, 65 N. C. 189. 
 
 (</) Now, in England, the Settled to exercise these powers and dis- 
 
 Land Acts have granted such pow- charge these duties when there is no 
 
 ers to and imposed such duties on urgent counter reason. See In re 
 
 tenants for life that, if the estate Wythes, [1893] 2 Ch. 369; In re 
 
 and trustees can be well protected Bagot, [1894] 1 Ch. 177; In re 
 
 by reasonable safeguards, an equi- Newen, 2 id. 297; In re Bentley, 
 
 table tenant for life is to be let into 54 L. J. Ch. 782. 
 possession and enabled personally 
 486
 
 CHAP. XI.] ACTION -CONTROL -EIGHTS. [§ 330 
 
 And the trustees may purchase whatever is necessary, and 
 cultivate the land instead of rentint^ it. ^ If the cestui que 
 trust, or tenant for life, is a female, the court will continue 
 the possession in the trustees for her protection in case of 
 marriage.^ So, if the trustees themselves have a beneficial 
 interest, or a reversion or remainder after the death of the 
 tenant for life, the court will continue the possession in 
 thcm.^ {a) if, however, the plain intention of the settlement 
 is that the cestui que trust is to have the ])ossession, then all 
 other considerations must give way ; as, if it is plain that the 
 settlor intended the estate to be a place of residence for the 
 cestui que trust, the intention must be cnrried out.* If the 
 tenant for life takes a le(/al estate, subject to a charge, he 
 will of course be entitled to the possession, so long as he 
 discharges all incumbrances thus put upon the estate.^ But 
 if the tenant for life allows the annuities or other charges to 
 fall in arrears, the trustees must take possession for the 
 security of the annuitants, and must continue the possession 
 until ample security is made for the future.^ Security may 
 be required in any case where the tenant for life is let into 
 possession.'' 
 
 § 830. The trustee is entitled to the possession of all j)er- 
 sonal securities, such as bonds, notes, mortgages, and certifi- 
 
 1 Mayfield r. Kegour, 21 Md. 241. 
 
 * Ibid. ; Weekham v. Berry, o5 Penn. St. 70. 
 8 Ibid. 
 
 * Tidd V. Lister, 5 Madd. 432; Campbell v. Prestons, 22 Grat. 396. 
 
 ^ Denton v. Denton, 7 Beav. 388; Blake v. Bunbury, 1 Ves. Jr. 194; 
 Tidd /'. Lister, 5 Madd. 432. 
 
 6 Ibid. 
 
 ' Ibid. ; Pugh V. Vaughn, 12 Beav. 517 ; Langstou v. Ollivant, Coop. 
 33 ; Baylies v. Baylies, 1 Col. 137. 
 
 (a) A trustee may sue to protect made by him and others in interest, 
 
 a remainder in th^; trust property as when he had no power to bind the 
 
 well as the life estate therein. Leake remainders. Bergengren v. Aldrich, 
 
 V. Watson, 58 Conn. 332, But spe- 139 Mass. 259. See Asche v. Asche, 
 
 cific performance will not be decreed 113 N. Y. 232 ; Bagley r. Kennedy, 
 
 against remaindermen of the trus- 81 Ga. 721. 
 tee's agreement to renew a lease 
 
 487
 
 § 330.] PROPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 cates of stocks, belonging to the trust estate; and he may 
 maintain an action for their delivery, even against the cestui 
 que trust.^ All personal actions for injury to the personal 
 property, or for its detention or conversion, such as trespass,^ 
 trover,^ detinue,* or replevin,^ must be brought in the name 
 of the trustee, although the possession is in the cestui que 
 trust,^{a) and although there may be a defect in the title of 
 the trustee ; " for the possession of the cestui que trust is the 
 possession of the trustee, and in law he is not allowed to dis- 
 pute the title or possession of his trustee.^ The action of 
 assumpsit is an equitable action, and, generally, if a promise 
 is made to one for the benefit of another, the person for whose 
 benefit the promise is made may bring the action; but if a 
 promise is made to a trustee for the benefit of the cestui que 
 trust, the trustee alone can sue.^ (h) So only those parties 
 can sue on a contract with whom it is made, unless it is 
 
 ^ Jones V. Jones, 3 Bro. Ch. 80 ; Poole r. Pass, 1 Beav. 600; Beach v. 
 Beach, 14 Vt. 28; Gunn v. Barrow, 17 Ala. 743; White v. Albertson, 3 
 Dev. 241; Guphill v. Isbell, 8 Rich. L. 463; Presley v. Stribling, 24 Miss. 
 257 ; Pace v. I'ierce, 49 Mo. 393 ; Ryan v. Bibb, 46 Ala. 343 ; Western 
 R. R. Co. V. Nolan, 48 N. Y. 513. 
 
 2 McRaeny v. Johnson, 2 Fla. 520. 
 
 8 Hower v. Geesaman, 17 Serg. & R. 251 ; Poage v. Bell, 8 Leigh, 604 ; 
 Coleson v. Blanton, 3 Hayw. 1.52; Guphill v. Isbell, 8 Rich. L. 403; Thomp- 
 son V. Ford, 7 Ired. 418; Schley v. Lyons, 6 Ga. 530. 
 
 * Jones V. Strong, 6 Ired. 367; Murphy v. Moore, 4 Ired. Eq. 118; 
 Chambers v. Mauldin, 4 Ala. 477; Parsons v. Boyd, 20 Ala. 112; Stoker 
 V. Yelby, 11 Ala. 327; Baker v. Washington, 3 Stew. & P. 142; Newman 
 V. Montgomery, 5 How. (Miss.) 742. 
 
 6 Presley v. Stribling, 24 Miss. 527; Daniel v. Daniel, 6 B. Mon. 230. 
 
 « Jones V. Cole, 2 Bail. 330 ; Wynn v. Lee, 5 Ga. 236. 
 
 ' Rogers v. White, 1 Sneed, 69. 
 
 8 White V. Albertson, 3 Dev. 241. 
 
 » Treat v. Stanton, 14 Conn. 445 ; Porter v. Raymond, 53 N. II. 519. 
 
 («) The ceiflui's possession of 2 Ch. 172. The beneficiary may 
 chattels, provided for by a trust also sue in trover, if the trustee re- 
 instrument, is in law the possession fuses to sue. Anderson v. Daley, 
 of the trustee, who may sue in trover 56 N. Y. S. 511. 
 for their conversion, though he (h) See 1 Ames on Trusts (2d 
 has never taken actual possession ed.), 258. 
 thereof. Barker v. Furlong, [1S91] 
 488
 
 CHAP. XI.] ACTION -CONTROL -RIGHTS. [§ 330. 
 
 negotiable paper; therefore, substituted trustees cannot sue 
 upon a contract made with their predecessors in tlie trust, 
 but the suit must be in the names of the parties with whom 
 it was made, for the benefit of the estate.* Generally, all 
 notices and tenders'^ must be made to the trustees; and they 
 must use all due diligence in prosecuting suits in favor of 
 the estate and of the cestui que trust, and they must take the 
 proper care in defending such suits; and if appeals are taken 
 from decrees or judgments in favor of the estate, or of the 
 cestui que trust, they must duly su[)port the rights of the 
 cestui que trust in whatever court the case may be carried.^ 
 If the cestui que trust brings an action in the name of the 
 trustee, the trustee may insist upon indemnity against the 
 costs.* If the trustee collusively releases such suit without 
 the consent of the party beneficially interested, the court will 
 set aside the release.^ So, if a trustee discharges a debt or 
 mortgage without payment, the court would set aside the 
 discharge;^ and if a trustee refuses to bring a suit, or to 
 allow his name to be used, equity will comi)cl him to take 
 such steps as the interest of the estate and of the cestui que 
 trust requires.'^ In all such suits in the name of the trustee, 
 a debt due from the cestui que trust cannot be set off.^(</) 
 
 1 Binney v. Pluinly, 5 Vt. 500 ; Ingersoll v. Cooper, 5 Blackf. 420; 
 Davant r. (iuerard, 1 Spear, 212 ; Wake v. Tinkler, 16 East, 36. 
 
 2 Chalioon v. IloUeuback, 16 Serg. & II. 425 ; Henry i'. Morgan, 2 Binn. 
 497. 
 
 * Wood V. Burnham, 6 Paige, 513. 
 
 * Ins. Co. V. Smith, 11 Penn. St. 120; Annesley v. Simeon, 4 Madd. 
 390; Roden v. Murphy, 10 Ala. 804. 
 
 6 Anon. Salk. 2(i0; Bauerman r. Radenius, 7 T. R. 670 ; Legh v. Legh, 
 1 B. & P. 447; Payne v. Rogers, Doug. 407; Manning r. Cox, 7 Moore, 
 617 ; Hickey v. Burt, 7 Taunt. 48 ; Barker v. Richardson, 1 Y. & J. 362 ; 
 Roden v. Murphy, 10 Ala. 804; Greene v. Beatty, Coxe, 142 ; Kirkpatrick 
 V. McDonald, 11 Penn. St. 387. 
 
 6 Woolf r. Bate, 9 B. ]\Ion. 210. 
 
 7 Blin V. Pierce, 20 Vt. 25; Cliisholm r. Newton, 1 Ala. 371; Robin- 
 son V. Mauldiu, 11 Ala. 978; Welch v. Maudevilk', 1 Wheat. 233; Parker 
 V. Kelly, 10 Sm. & M. 184; McCullum v. Coxe, 1 Dall. 139. 
 
 8 Wells r. Chapman, 4 Sandf. Ch. 312 ; Campbell c. Hamilton, 4 Wash, 
 (a) See Loder v. Allen, 50 X. J. 1020 ; 1 Ames on Trusts (2d ed.) , 
 
 Eq. 631 ; Harris v. Elliott, 48 N. Y. S. 270. 
 
 489
 
 § 332,] PROPERTIES OF THE TRUST ESTATE, [CHAP. XI, 
 
 If a trustee sue for matters pertaining to the trust estate, a 
 private debt due from the trustee cannot be set off,^ A trus- 
 tee cannot set off against the assignee of the cestui a debt for 
 money lent by him to the cestui before his appointment as 
 trustee. 2 
 
 § 331. The trustee, being liable for a breach of the trust, 
 if he permits any misapplication of the funds should of course 
 have the possession and control of all personal property. So 
 all the duties and privileges which attach to such property 
 pertain to him. If the property consists of stocks in corpo- 
 rations, he may attend corporate meetings, vote, and hold 
 office by virtue of such stock." If the trustee die, the per- 
 sonal property devolves upon his executor or administrator 
 until the appointment of a new trustee, and such executor or 
 administrator has a right to vote upon stocks at corporate 
 meetings.* So the trustee is rated or assessed for taxes, and 
 must see that the taxes upon the trust property are paid. 
 The statutes of the various States determine the localities 
 where such property shall be assessed : real estate is gen- 
 erally assessed in the parish, town, or county where it is 
 situated; and personal property, either in the place of the 
 domicil of the trustee or of the cestui que trust, as the stat- 
 utes of a State may direct. In the absence of a statute, the 
 law would look upon the trustee as the owner, and assess the 
 property at his domicil,^ 
 
 § 332. The trustee must prove a debt against a bankrupt 
 debtor of the estate, as he is the person to receive the divi- 
 
 C. C. 93 ; Woolf v. Bates, 9 B. Mon. 211 ; Beale v. Coon, 2 Watts, 183; 
 Tucker v. Tucker, 4 B. & Ad. 745 ; Porter v. Morris, 2 Han-. 509. 
 
 1 Page V. Stephens, 23 Mich. 3.57. 
 
 2 Abbott 1-. Foote, 140 :\Iass. 333. 
 
 ' IMatter of Barker, 6 Wend. 509 ; Re Phoenix Life Assur. Co., 2 John. 
 & II. 279. 
 
 4 North Shore Ferry Co. , 63 Barb. 556 ; People v. Tebbetts, 4 Cow. 
 364; Bailey r. Hollister, 26 N. Y. 112; Middlebrook v. Merchants' Bank, 
 3 Keyes, 135 ; Runn r. Yaughan, id. 345. 
 
 s Latrobe v. Baltimore, 19 Md. 13 ; Green v. Mumford, 4 R. I. 313; and 
 see the statutes of the various States. 
 490
 
 CHAP. Xr.] SALE AND DEVISE OF TRUST PROPERTY. [§ 334 
 
 dciid;^ but in sj)ccial cases the concurrence of the ceHtui que 
 trust may be rcciuircd, as where lie may havu a right to re- 
 ceive the payment.^ 
 
 § 333. In Enghintl, trustees had at common law the right 
 to vote for local ofticers and for members of parliament, by 
 virtue of the qualification conferred upon them by the trust 
 property, if it was suflicient in amount. Statutes have, 
 however, changed the common law, and given the right in 
 most cases to the cestui que trust. In the United States, 
 property qualifications of voters are generally abrogated.^ 
 
 § 334. Trustees of real or personal estate may, at lau; 
 sell, convey, assign, or incumber the same, as if they were 
 the beneficial owners,"* and each of several trustees may exer- 
 cise all his rights of ownership. If the trustees are joint- 
 tenants, each may receive the rents, ^ and each may sever the 
 joint-tenancy by a conveyance of his share,° and each may 
 collect the dividends on stocks, and on the death of one, the 
 survivor may sell the whole estate,' The general power of a 
 trustee to sell and convey the estate is co-extensive with his 
 ownership of the legal title; and this general power over the 
 legal title is entirely distinct from the execution of a special 
 power given in respect to the sale of an estate. Though the 
 trustee may thus sell, even in breach of the trust, a convey- 
 ance without consideration will not injure the eesttti que 
 trust; as the grantee, who is a volunteer, will hold upon 
 the same trusts as the trustee held, and if the purchaser for 
 a valuable consideration have notice of the trust he will still 
 hold the estate upon trust. ^ In New York, however, a stat- 
 
 1 Ex parte Green, 2 Dea. & Ch. 110. 
 
 2 Ex parte Dubois, 1 Cox, 310; Ex parte Butler. Buck, 420; Ex parte 
 Gray, 4 Dea. & Ch. 77S ; Ex parte Dickenson, 2 Dea. & Ch. 520. 
 
 * See 5 Ired. Eq. Appendix ; 4 Kent, Com. 195. 
 
 * Shortz V. Unangst, 3 Watts & S. 55 ; Canoy v. Troutman, 7 Ired. 155. 
 
 * Townley v. Sherborne, Bridg. 35. 
 
 ^ Boursot V. Savage, L. R. 2 Eq. 134. 
 ^ Saunders r. Schmaelzle, 49 Cal. 59. 
 8 See a)Ue, § 321. 
 
 491
 
 § 336.] PROPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 ute has converted the trustee's ownership of the legal title 
 into a power, or power in trust ;i and where a trust is ex- 
 pressly created by a written instrument, every sale in breach 
 or contravention of the trust is declared to be absolutely void, 
 even if the sale is under the sanction of a court. ^ Whether 
 a trustee intends to convey an estate is frequently a question 
 made upon conveyances, and it has been determined that a 
 general assignment of all the trustee's estates, for the bene- 
 fit of his creditors, does not pass estates held by him in 
 trust. ^ 
 
 § 335. As among the incidents of the trustee's legal title 
 in the trust estate is his power to sell it, so he may devise it 
 by his last will and testament. The principal question that 
 here arises is, whether the words of the will of a trustee 
 embrace estates held by him in trust, for a trust estate will 
 not in all cases pass by the same words as would pass the 
 bene&cial ownership; for wherever an estate passes, not by 
 operation of law, but by the intention of any one, it is neces- 
 sary to find the intention from the instrument under the cir- 
 cumstances in which it is made ; and an intention to devise a 
 trust estate is not so readily inferred as an intention to devise 
 a beneficial estate. If the trust is only a personal one, the 
 donor using no words requiring continuance of the trust 
 beyond the life of the immediate trustee, the estate cannot be 
 devised by the trustee, but ceases at his death. ^ 
 
 § 336. An assignment in general words by a trustee of all 
 his estate for his creditors will not pass a trust estate, for 
 the reason that the court will not presume that the trustee 
 
 1 Anderson v. Mather, 44 N. Y. 249 ; New York, &c. v. Stillman, 30 
 X. Y. 174 ; Fitzgerald v. Topping, 48 N. Y. 441 ; Fellows v. Ileermans, 
 4 Lans. 230 ; Martin v. Smith, 56 Barb. 600 ; Critton v. Fairchild, 41 N. Y. 
 289. The law is the same in Michigan. Palmer v. Wilkins, 24 Mich. 
 328. See Jones v. Shaddock, 41 Ala 262; 1 Rev. Stat. 730, § 65 ; Briggs 
 i;. Palmer, 20 Barb. 392; Briggs v. Davis, 20 N. Y. 15; 21 X. Y. 574. 
 
 ■^ Cruger v. Jones, 18 Barb. 468; Lahens i'. Dupasseur, 56 Barb. 256. 
 
 3 Ludwig V. Highley, 5 Barr, 132 ; Abbott, Pet'r, 55 Maine, 480. 
 
 * Hinckley v. Hinckley, 79 Maine, 320. 
 492
 
 CHAP. XI.] DEVISE OF TRUST PROPERTY. [§ 337. 
 
 intended to commit a breach of trust ;^ for a similar reason 
 it has at times been said that a devise of all a truKtce's 
 estates in general words would not operate upon estates tliat 
 he held in trust, unless there appeared a positive intention 
 (]iat they should so pass.^ The question was finally consid- 
 ered by Lord Eldon ; and after a careful examination, the 
 rule was declared to be, that " where the will contained words 
 large enough, and there was no expression authorizing a nar- 
 rower construction, nor any such disposition of the estate as 
 it was unlikely a testator would make of property not his 
 own, in such case the trust property would pass. "^ Mr. 11 ill 
 states the rule, "that a general devise of real estate will pass 
 estates vested in the testator as trustee or mortgagee, unless 
 a contrary intention can be collected from the expressions of 
 the will, or from the purposes or limitations to which the 
 devised lands are subjected."* This general rule is acted 
 upon in the United States.^ 
 
 § 337. Notwithstanding the rule, that a trust estate will 
 pass by general words in a devise, unless there is something 
 in the will to show a contrary intention, there has continued 
 to be a conflict of opinion upon the propriety of the rule, and 
 more conflict upon its application. But a charge of debts, 
 legacies, and annuities upon the estate devised, or a power 
 
 1 Cook V. Tullis, 18 Wall. 332; Kelly v. Scott, 49 N. Y. 595; In re 
 McKay, 1 Lowell, 345; Chase v. Chapin, 130 Mass. 128. 
 
 ■^ Casborne v. Scarfe, 1 Atk. 605 ; Strode r. Russell, 2 Vern. G25; Leeds 
 V Munday, 3 Ves. 348; Ex parte Sergison, 4 Ves. 147; Ex parte Bowes, 
 cited note 1 Atk. 605; rickering v. Vowles, 1 Bro. Ch. 198 ; Alt. Gen. r. 
 Buller, 5 Ves. 340. 
 
 8 Braybrooke v. Inskip, 8 Ves. 436; Roe v. Reade, 8 T. R. 118; Ex 
 parte Morgan, 10 Ves. 101 ; Langford r. Auger, 4 Ilare, 313; Linsell v. 
 Thacher, 12 Sim. 178; Ex parte Shaw, 8 Sim. 159; Hawkins v. Obeen, 
 2 Ves. 559. 
 
 * Hill on Trustees, 2S3. 
 
 "" Taylor v. Benham, 5 How. 270; Heath v. Knapp, 4 Barr, 228; Jack- 
 son V. Delancy, 13 Johns. 537; Hughes i'. Caldwell, 11 Leigh, 342; Merritt 
 V. Farmers' Ins. Co., 2 Edw. Ch. 547 ; Ballard v. Carter, 5 Pick. 112; Asay 
 V. Hoover, 5 Barr, 35; Richardson v. Woodbury, 43 Me. 206; Draue v. 
 Gunter, 19 Ala. 731. 
 
 493
 
 § 337.] PROPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 given to soil it, is an indication that the testator did not in- 
 tend tliat the trust estate should pass under the words of his 
 devise, for the reason that he could not have intended that 
 his devisee should do that with the estate which would be a 
 breach of trust/ So, if there is a limitation of the estate in 
 strict settlement, with a great number of complicated condi- 
 tions, contingencies, remainders, and limitations, it will not 
 be presumed that a trustee intended to devise a dry trust in 
 a legal title upon such terms, and the estate will not pass 
 under general words ;2 so if the devise is to A. in tail with 
 remainder over in strict settlement;^ so a devise to a testa- 
 tor's nephews and nieces in equal shares as tenants in com- 
 mon is to a class not ascertained at the date of the will, and 
 will not by general words pass a trust estate.^ So a devise 
 to a woman for her separate use, (a) imports a beneficial use, 
 and not a dry legal estate, and the trust estate would not 
 pass to her under general words. ^ But a devise to a woman, 
 her heirs and assigns, to her and their own sole and absolute 
 use, passes the estate for the reason that there is nothing 
 inconsistent with their holding the absolute use in trust ;^ 
 and a devise to A. and B. to be equally divided between 
 them, as tenants in common, and their respective heirs, will 
 
 1 Rackham v. Siddall, 16 Sim. 297; 1 Mac. &G. 607 ; Hope v. Liddell, 
 21 Beav. 18-3 ; Life Asso. of Scotland v. Siddall, 3 De G., F. & J. 58; Wall 
 V. Bright, 1 Q. & W. 494 ; Leeds v. Munday, 3 Yes. 348 ; Ex parte Mar- 
 shall, 9 Sim. 555 ; Re Morley's Trusts, 10 Hare, 293 ; Sylvester v. Jarman, 
 10 Price, 78; Roe v. Reade, 8 T. R. 118; Att. Gen. v. Buller, 5 Ves. 339; 
 Ex parte Morgan, 10 Yes. 101 ; Ex parte Brettell, 6 Ves. 577 ; Merritt v. 
 Farmers' Ins. Co., 2 Edw. Ch. 547. 
 
 2 Braybrooke v. In.skip, 8 Yes. 434. 
 
 3 Thompson v. Grant, 4 Madd. 438 ; Ex parte Bowes, cited 1 Atk. 
 603 ; Galliers v. Moss, 9 B. & Cr. 267 ; Re Horsfall, 1 McClel. & Y. 292. 
 
 4 Re Finney's Est., 3 Gif. 465. 
 
 ^ Lindsell v. Thacher, 12 Sim. 178 ; the case itself, not the marginal 
 note. 
 
 8 Lewis t'. Mathews, L. R. 2 Eq. 177. 
 
 (a) No particular form of words use. 7n r<? Peacock's Trusts, 10 Ch. 
 is necessary in order to vest property D. 490 ; Bland v. Dawes, 17 id. 794. 
 in a married woman for her separate 
 494
 
 CHAP. XI.] DEVISE OF TRUST PROPERTY. [§ 339. 
 
 jiass the estate.^ A devise of all my estates will pass trust 
 ])r()j)erty.2 So a devise to A., liis heirs and assigns, to and 
 for iiis and tlieir own use and benefit;^ and a devise to A. 
 and her heirs, to be disjjosed of, by her will or otherwise, as 
 she shall think fit,'* will pass trust property under general 
 words, for there is no necessary breach of the trust. 
 
 § 338. The interest of a mortgagee in fee in the mortgaged 
 land stands upon a somewhat dilTerent ground. The mort- 
 gagee has a debt due him which is the principal thing, and 
 the mortgage is a beneficial interest in the land as security 
 for the debt. This interest generally goes with the debt. 
 And mortgage estates will pass by a general devise, notwith- 
 standing a charge of debts and legacies, if the intent ajtpcars, 
 to pass them as securities for money. ^ But if there are 
 special trusts for sale, or other special charges annexed to 
 the devise, inconsistent with the idea of holding the estate 
 as security for money, it would not pass under a general 
 devise.^ 
 
 § 339. In allowing a trust estate to pass under general 
 words of a devise, it is assumed that the testator docs not 
 
 ^ Ex -parte Whiteacre, cited Lewin on Trusts, 186 ; 1 Saund. Uses & 
 Tr. 359 ; Re Motley's Trusts, 10 Hare, 293. 
 
 2 Braybrooke r. Iiisldp, 8 Ves. 425 ; Bangs v. Sinitli, 98 ]\Iass. 273 ; 
 Amory r. Meredith, 7 Allen, 397; Willard v. Ware, 10 Allen, 2G3 ; Stone 
 V. Ilackett, 12 Gray, 237. 
 
 ' Ex -parte Shaw, 8 Sim. 159, Bainbridge v. Ashburton, 2 Y. & C. 347 ; 
 Sharps n. Sharpe, 12 Jur. 598 ; Ex parte Brettell, G Ves. 577 ; Heath v. 
 Knapp, 4 Barr, 228 ; Abbott, Petitioner, 55 Maine, 580. 
 
 * Ibid. 
 
 6 Ex parte Barber, 5 Sim. 451 ; Doe c. Benett, 6 Exch. 892 ; Tie Cantley 
 17 Jur. 124 ; King's Mort., 5 De G. & Sm. 644 ; Knight v. Robinson, 2 K. & 
 J. 503; Ilippen v. Priest, 13 C. B. (n. s.) 508; Re Arrowsmith, 4 Jur. 
 (n. 8.) 1123 ; Mather v. Thomas, 6 Sim. 119 ; overruling Galliers v. Moss, 
 9 B. & C. 207 ; Sylvester v. Jarman, 10 Price, 78, and Re Cantley, 17 Jur. 
 124; Ballard v. Carter, 5 Pick. 112; Asay v. Hoover, 5 Barr, 35 ; Richard- 
 son V. Woodbury, 43 Maine, 20G ; Field's Mort., 9 Hare, 414, overruling 
 Benvoize v. Cooper, 10 Price, 78, and iu opposition to Doe v. Lightfoot, 
 8 :\I. & W. 553. 
 
 « Re Cantley, 17 Jur. 123. 
 
 495
 
 § 339.] PROrERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 intend by his devise to commit a breach of the trust. It is 
 simply a question, whether the testator has devised, or can 
 or should devise, a trust estate, or whether he should allow 
 it to descend to his heir or legal representatives. It was 
 said in Cook v. Crawford, that it was not lawful for the trus- 
 tee to dispose of the estate, but that lie ought to permit it to 
 descend; that a devise did not diifer from a deed inter vivos; 
 and that it was only a post mortem conveyance. ^ On the 
 other hand, it is said that there is a wide distinction be- 
 tween a conveyance and a devise. That during the trustee's 
 lifetime there was a personal trust and confidence in his 
 discretion, which he could not delegate; that the settlor 
 could have reposed no confidence in the heir, for he could 
 not know beforehand who the heir would be ; that if the 
 estate was allowed to descend, it might become vested in 
 married women, infants, bankrupts, or persons out of the 
 jurisdiction of the court; and that therefore it could not be a 
 breach of trust for a trustee to devise the estate by will to 
 persons capable of executing it, or of transferring it to other 
 trustees. 2 (a) Mr. Lewin concludes from these observations, 
 that whether the devise of the trust estate is proper or not 
 depends upon the circumstances of each case. If the heir is 
 a fit person to execute the trust, the testator ought not to in- 
 tercept the descent and pass the legal estate to another, and 
 especially not to an unfit person. In such case the estate of 
 the testator might be liable for the costs of restoring the 
 trust estate to its proper channel or to proper trustees. If, 
 however, the heir is an unfit person, as an infant, bankrupt, 
 insolvent, lunatic, married woman, or out of the jurisdiction, 
 it may be proper to devise the estate.^ And this seems to be 
 the result of the authorities.^ 
 
 1 Cook V. Crawford, 13 Sim. 98 ; and see Beasley v. Wilkinson, 13 Jur. 
 649. 
 
 2 Titley v. Wolstenholme. 7 Beav. 435 ; Macdonald v. Walker, 14 Beav. 
 556 ; Wilson v. Bennett, 5 De G. & Sra. 479. 
 
 8 Lewin on Trusts, 187, 188. 
 
 * Beasley v. Wilkinson, 13 Jur. 649. 
 
 (a) See Osborne v. Rowlett, 13 lett, 15 id. 143; In re Ingleby, &c., 
 Ch. D. 774 ; In re Morton and Hal- Ins. Co., 13 L. R. Ir. 326. 
 496
 
 CHAP. XI.] DEVISE OF TRUST PKOPEIiTY. [§ 340. 
 
 § 340. It docs not follow that the devisee can execute the 
 trust from the fact that the legal title is devised to him, nor 
 does it follow that the heir can execute the trust from the 
 fact that the legal title descends to him. How far either 
 can execute the trust depends upon the intention of the set- 
 tlor, to be gathered from the terms of the instrument.' 
 Thus, if an estate is so vested in A. that A. alone shall j^er- 
 ssonally execute the trust, neither the heir nor the devisee of 
 A. could execute it, although holding the legal title.^ As if 
 an estate is vested in A. and his heirs upon a trust to sell, 
 and A. devises the estate, neither the heir nor the devisee 
 can sell : for the heir has nothing in the estate to sell, it 
 having gone to the devisee; and the devisee has no power, he 
 not being mentioned in the original settlement. ^ So, where 
 property was vested in two trustees, their executors and ad- 
 ministrators in trust, and the surviving trustee devised the 
 property to A. and B., and appointed A., B. , and C. execu- 
 tors, the court refused to hand over the property to A. and 
 B., for the reason that devisees were not named as parties 
 who could execute the trust ; and the court refused to hand 
 it over to the executors, for the reason that the legal title 
 was given away from them; new trustees were therefore 
 appointed to receive the property and execute the trust.* 
 But where the word "assigns" is part of the limitation of 
 the estate to trustees, as where an estate is vested in A., his 
 heirs, executors, administrators, and assigns in trust, and 
 A. devises the estate, the devisee may execute the trust, for 
 the reason that he comes within the limitation of the persons 
 who may take the trust property and execute the trust. ^ 
 
 1 Abbott, Pet'r, 55 Maine, 580. 
 
 2 Mortimer r, Ireland, 6 Hare, 196 ; 11 Jiir. 721 ; Ockleston r. Heap, 
 1 De G. &Sra. 640. 
 
 8 Mortimer v. Ireland, 6 Ilare, 196; 11 Jiir. 721 ; Ockleston v. Heap, 
 1 De G. & Sm. 640; Cook v. Crawford, 13 Sim. 91; Stevens v. Austen, 
 7 Jur. (n. s.) 873; Wilson v. Bennett, 5 De G. & Sm. 475. 
 
 * Re Burtt's Est., 1 Dr. 319; MacdonalJ v. Walker, 14 Beav. 
 556. 
 
 6 Titley v. Wolstenholme, 7 Beav. 425 ; Saloway v. Strawbridge, 1 K. 
 & J. 371 ; 7 De G., M. & G. 594. 
 
 VOL. I. —32 497
 
 § 341.] PROrERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 This principle has been doubted and criticised,^ but it seems 
 to be acted upon in the English courts.^ 
 
 § 341. In New York, Michigan, Wisconsin, Alabama, 
 and Missouri, (a) trust property, upon the death of the sur- 
 viving trustee, does not descend to the heir, nor can it be 
 devised, but it vests in the court, and will be administered 
 by the court by the appointment of new trustees to execute 
 the trust. 2 In the other States, the trust estate descends to 
 the heir, or vests in the devisee, as the legal title must go 
 somewhere in the absence of a statute, upon the death of the 
 surviving trustee.* Courts in the United States do not have 
 occasion often to consider the question, whether the heir or 
 devisee can execute the trust, as new trustees can be ap- 
 pointed in any case at the desire of the parties, and, in many 
 States, the trust property may be vested in the new trustees 
 by an order of the court. In most cases, it would simply be 
 a question whether the words of the will were comprehensive 
 enough to pass the trust estate, or whether it had descended 
 to the heir; and this question would be important only in 
 determining who should make a conveyance of the trust prop- 
 erty to the new trustees, if it became necessary that a con- 
 veyance should be made. 
 
 1 Ockleston v. Heap, 1 De G. & Sm. 642. 
 
 2 Mortimer v. Ireland, 6 Hare, 196 ; 11 Jur. 721 ; Ashton v. Wood, 
 3 Sm. & Gif. 436; Hall v. May, 3 K. & J. 585; Lane v. Debenham, 11 
 Hare, 188. 
 
 3 Clark V. Crego, 47 Barb. 597 ; Hawley r. Ross, 7 Paige, 103 ; McCos- 
 ker r. Brady, 1 Barb. Ch. 329 ; People v. Morton, 5 Seld. 17G ; McDougald 
 V. Gary, 38 Ala. 320 ; Hook v. Dyer, 47 Mo. 241. This rule is confined to 
 real property. Trusts in personal property are governed by the ordinary 
 rules that apply to them in other States. Bucklin v. Bucklin, 1 N. Y, 
 Dec. 242. 
 
 ^ Trusts of real estate, on the death of the trustee, vest in the heir 
 trusts of personalty in the executor or administrator. Schenck v. Schenck, 
 16 N. J. Eq. 174. 
 
 (a) In Missouri, the heirs of the the property or to have a new trustee 
 
 trustee take the legal title upon his appointed. Ewing v. Shannahan, 
 
 death, and it is their duty to care for 113 Mo. 188. 
 498
 
 CHAP. XI.] DEVISE OF TRUST PROPERTY. [§ 343. 
 
 § 342. If an owner of real estate contracts to sell it, he 
 })Ccomc8 a trustee of the le<^ul title for the vendee; and if he 
 dies before conveying the legal title, it will descend to his 
 heir or heirs, as the legal title must vest somewhere; and 
 so he may devise it; and the heir, in case it descends, and 
 the devisee, in case it is devised, may be called upon to con- 
 vey it to the vendee.^ In Massachusetts, there is a statute 
 authorizing the vendor's executor or administrator to convey 
 such estate, under the direction of the court of probate. ^ 
 
 § 343. Trust property is generally limited to trustees, 
 as joint-tenants ; and if by the terms of the gift it is doubt- 
 ful, whether the trustees take as joint-tenants, or tenants in 
 common, courts will construe a joint-tenancy if possible, on 
 account of the inconvenience of trustees holding as tenants 
 in common ; and, where statutes have abolished joint-tenancy, 
 an exception is generally made in the case of trustees. And 
 courts will not allow a process for the partition of a trust 
 estate.'^ Therefore, upon the death of one of the original 
 trustees, the whole estate, whether real or personal, devolves 
 upon the survivors, and so on to the last survivor; and upon 
 the death of the last survivor, if he has made no disposition 
 of the estate by will or otherwise, it devolves u])on his heirs 
 if real estate, and upon his executors or administrators if it 
 is personal estate.^ (a) The title in the surviving trustee is 
 complete, and no breaches of trust after the death of his co- 
 
 1 Wall I'. Bright, IJ. & W. 494; Read r. Read, 8 T. R. 118. 
 
 2 Gen. Stat. c. 117, §§ 5 and G ; Reed r. Whitney, 7 Gray, 533. 
 
 8 Baldwin v. Humphrey, 44 N. Y. GOO ; Saunders v. Schmaelzle, 49 
 Cal. 59. 
 
 * Whiting V. Whiting, 4 Gray, 236 ; Moses v. Murgatroyd, 1 Johns. 
 Ch. 119; De Peyster v. Ferrars, 11 Paige, 13; Shook i'. Shook, 19 Barb. 
 653 ; Shortz i;. Unangst, 3 W. & S. 45 ; Gray l-. Lynch, S Gill, 404 ; Maul- 
 din V. Armstead, 14 Ala. 702; Powell r. Knox, 16 Ala. 3G4 ; Richeson v. 
 Ryan, 15 III. 13; Stewart i'. Pettus, 10 Mo. 755; Jenks v. Backhouse, 1 
 Binn. 91 ; King v. Leach, 2 Hare, 59 ; Watkins v. Specht, 7 Coldw. 585 ; 
 Webster v. Vanderventer, 6 Gray, 429. 
 
 (a) See 1 Ames on Trusts (2d ed.), 346. 
 
 499
 
 § 344.] PEOPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 trustees can be charged upon their estate ; ^ nor can the rep- 
 resentatives of his cotrustees interfere with his management 
 of the trust estate, even if he is insolvent or unfit for the 
 trust. ^ (a) The cestui que trust alone can interfere or apply 
 to the court for redress or relief. So all rights of action are 
 in the surviving trustee, and he may sue in his own name or 
 as survivor, according as the cause of an action accrued be- 
 fore or after the death of his cotrustees;^ and, in case of 
 his death, his executor or administrator may continue the 
 action.* The rule is that actions must be brought in the 
 names of the parties to the contract.^ 
 
 § 344. So absolute is the rule that the heir or adminis- 
 trator takes the trust property upon the death of the last 
 surviving trustee, that a husband, as administrator of his 
 wife, takes the personal property that she held in trust, but 
 he must hold it upon the original trust. ^ In England, the 
 
 1 QeQjmst, §426. 
 
 2 Shook V. Shook, 19 Barb. 653. 
 
 8 Richeson v. Ryan, 15 111. 13; Wheatley v. Boyd, 7 Exch. 20. 
 
 4 Nichols V. Campbell, 10 Grat. 561 ; Powell v. Knox, 16 Ala. 361 ; 
 Mauldin v. Armstead, 14 Ala. 702. 
 
 5 Robins v. Deshon, 19 Ind. 204 ; King v. Lawrence, 14 Wis. 238 ; 
 Farrell v. Ladd, 10 Allen, 127 ; Childs v. Jordan, 106 Mass. 323. 
 
 « Ante, § 264; Kuster v. Howe, 3 Ind. 268. 
 
 (a) The estate of a deceased quently incurred, which he has no 
 
 trustee, who left the trust fund in a part in contracting. Noyes v. 
 
 proper state of investment at his TurnbuU, 54 Hun, 26; 130 N. Y. 
 
 death, is not liable for a breach of 639. A new trustee, who after his 
 
 trust subsequently committed. Re appointment participates in the 
 
 Palk, 41 W. R. 28. See Laurel trustee's breach of trust, becomes 
 
 County Court v. Trustees, 93 Ky. liable with him. Riker v. Alsop, 
 
 379. A retiring trustee is not liable 27 F. R. 251 ; see U. S. Trust Co. 
 
 for his successor's breach of trust v. Stanton, 139 N. Y. 531. 
 unless the very breach of trust com- A surviving partner is so far a 
 
 mitted was really contemplated by trustee that, if he misappropriates 
 
 the former when his retirement and the firm assets, he may in equity be 
 
 the new appointment took place, held liable for breach of trust. 
 
 Head v. Gould, [1898] 2 Ch. 250. Russell v. McCall, 141 N. Y. 437 ; 
 
 Nor is he liable for debts subse- Darrow v. Calkins, 154 N. Y. 503. 
 500
 
 CHAP. XI.] DEVOLUTION OF THE TRUST ESTATE. [§ 345. 
 
 heir in case of real estate in trust, or the executor in case of 
 pLTsunal, is competent to adniini.ster and execute the tru.sts, 
 but they cannot execute discretionary trusts confided person- 
 ally to the original trustee, unless the power and confidence 
 arc also confided in them by the instrument.* In the United 
 States, the heirs or executors "will take the trust projjerty, 
 and they must settle the accounts of the testator in relation 
 to the trust. They must also sec that the ])roperty is pro- 
 tected and preserved, but they are not under any obligation 
 to execute the trust. They may decline the ofiice, and gen- 
 erally the court will appoint new trustees to succeed to the 
 original trustees. If the heirs or executors continue to 
 act as trustees, they will be liable for no past breaches of 
 trust, but only for breaches that occur under their own 
 management.^ 
 
 § 345. It has been before stated that a general assignment 
 for creditors does not pass a trust estate. In such case it 
 requires special words to vest the estate in an assignee. So 
 an assignment in Ijankruptcy of all the trustee's property 
 docs not pass estates which the bankrujit holds in trust.^ (a) 
 If the bankrupt by a breach of trust has converted the trust 
 estate into other property, the cestui que trust may follow it 
 into the hands of the assignee, so far as he can identify the 
 particular property obtained by breach of the trust. ^ (?>) But 
 if the trust property has become so amalgamated with the 
 general mass of the bankrupt's estate that it cannot be traced 
 
 1 Ante, § 264; Mansell r. Mansell, Wilm. 36; Cook r. Crawford. 13 
 Sim. 91 ; Hall v. Dewes, Jac. 189 ; Peytou v. Bury, 2 P. Wms. 62G ; 
 Bradford v. Belfield, 2 Sim. 264 ; Cole v. Wade, 16 Ves. 45 ; Sharji v. 
 Sharp, 2 B. & A. 405. See Townsend v. Wilson, 1 B. & A. 608. 
 
 2 Baird's App., 3 W. & S. 459 ; Scbeuck v. Scbenck, 16 N. J. Eq. 174 ; 
 Hill «. State, 2 Ark. 604. 
 
 8 Ante, § 3oG; Scott v. Surman, Willes, 402. 
 
 * Taylor v. Plumer, 3 ^I. & S. 562 ; Ex parte Sayers, 5 Ves. 169. 
 
 (fl) See Bump on Bankrui)tcy {h) See Hancock v. Smith, 41 
 
 (10th ed.), p. 554; 1 Ames ou Cli. D. 4.J6; Lister v. Stubbs, 45 
 Trusts (2d ed.), p. 392. id. 1; Patten v. Bond, Go L. T. 583. 
 
 501
 
 § 34:6.2 PROPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 or identified, the cestui que trust must prove his claim. ^ If 
 an assignee should get possession of the trust estate, and 
 refuse to restore it, the trustee, though a bankrupt, may 
 maintain a suit for its restoration, or the cestui que trust may 
 have a bill for the appointment of new trustees, and the con- 
 veyance of the property to them.^ But if a bankrupt trustee 
 has a beneficial interest in the trust property, it will pass to 
 his assignee ; and the assignee will hold the bankrupt's bene- 
 ficial interest in trust for his creditors, and the remainder 
 of the property in trust for the other parties beneficially 
 interested.^ 
 
 § 346. It is now a universal rule that all those who take 
 under the trustee, except purchasers for a valuable consider- 
 ation without notice, take subject to the trust, and they must 
 either execute the trust themselves, or convey the property 
 to new trustees appointed by the court. Thus the heir, ex- 
 ecutor, administrator, devisee, and the assignee by deed or in 
 bankruptcy, are bound by the trust; so are those who take 
 dower or curtesy in the trust estate, or a creditor who levies 
 an execution upon it. (a) If the trust estate is forfeited to 
 the crown or the State, it is still subject to the trust ; so if it 
 escheats upon the failure of heirs. But a disseizor is not an 
 assignee of the trustee; he holds a wrongful title of his own, 
 adversely to the trust. The cestui que trust has no remedy 
 in such case, except to procure the trustee to bring an action 
 upon his legal title to recover the possession. The cestui 
 que trust could not maintain a suit in equity to compel the 
 disseizor to hold upon the same trusts as the trustee; for 
 
 1 Ex parte Dumas, 1 Atk. 232 ; Ryall v. Rolle, id. 172 ; Scott v. Sur- 
 man, Willes, 403. 
 
 2 Winch V. Keely, 1 T. R. 619 ; Carpenter v. Marnell, 3 B. & P. 40. 
 
 8 Carpenter v. Marnell, 3 B. & P. 40 ; Parnham v. Hurst, 8 M. & W. 
 743; D'Arnay v. Chesneau, 13 M. & W. 809; Leslie v. Guthrie, 1 Bing. 
 N. C. 697; Boddington v. Castelli, 1 El. & Bl. 879. 
 
 (a) See Freedraan's S. Co. v. § 437 a, note ; Lee v. Enos, 97 
 
 Earle, 110 U. S. 710; Brandeis y. Mich. 276; Ewing v. Shannahan, 
 
 Cochrane, 112 U. S. 344; irifra, 113 Mo. 188. 
 502
 
 ClIAI'. XI.] MERGER. [§ 347. 
 
 tliore is no privity between the disseizor and dissei/ee. ^ (a) 
 Tlio only remedy of tlic cestui que trust is a<^ainst the trus- 
 tee; and if he refuses to brin^ an action to recover the estate, 
 he may be removed and a new trustee appointed. 
 
 § 347. Where the legal and equitable estate in the same 
 land becomes vested in the same i)erson, the equitable will 
 mery;c in the legal estate; for a man cannot be a trustee for 
 himself, nor hold the fee, which embraces the whole estate, 
 and at the same time hold the several jiarts separated from 
 the whole. 2 But in order that this may be true, the two 
 estates must be commensurate with each other ; or the legal 
 estate must be more extensive or comprehensive than the 
 equitable. The equitable fee cannot merge in a j)artial or 
 particular legal estate.^ And there will be no merger, if it 
 is contrary to the intention of the parties.* (5) If A. should 
 
 ^ Finch's Case, 4 Inst. 85 ; Gilbert on Uses by Sugd. 249 ; Reynolds 
 V. Jones, 2 Sim. & S. 20G ; Turner v. Buck, 22 Vin. Ab. 21 ; Doe v. Price, 
 16 ]M. & W. 603. But the cestui que trust is the beneficial owner, and 
 the court will protect him in an entry and occupation against a stranger. 
 Oatman i-. Barney, 46 Vt. 594. 
 
 2 Wadew. Paget, 1 Bro. Ch. .363; Selby r. Alston, 3 Ves. 339; Philips 
 V. Brydges, id. 126 ; Goodright v. Wells, Doug. 771 ; Finch's Case, 4 
 Inst. 85; Ilarmood v. Oglander, 8 Ves. 127 ; Creagh v. Blood, 3 Jones & 
 L. 133 ; James v. Morey, 2 Cow. 246; Mason v. :Mason, 2 Sandf. Ch. 433; 
 James r. Johnson, 6 Johns. Ch. 417; Cooper v. Cooper, 1 Ilalst. Ch. 9; 
 Healy i-. Alston, 25 Miss. 190; Brown r. Bontee, 10 Sm. & M. 268; Lewis 
 V. Starke, id. 128; Nicholson v. Ilalsey, 1 Johns. Ch. 422; Butler u. God- 
 ley, 1 Dev. 91; Hopkinson v. Dumas, 42 N. H. 306; Gardner v. Astor, 3 
 Johns. Ch. 53 ; Downes v. Grazebrook, 3 Mer. 208 ; Ayliff v. Murray, 2 
 Atk. 59; Wills v. Cooper, 1 Dutch. (N. J.) 137; Ilabergham v. Vincent, 
 2 Ves. Jr. 204. 
 
 « Selby V. Alston, 3 Ves. 330; Hunt v. Hunt, 14 Pick. 374; Donalds 
 i\ Plumb, 8 Conn. 453; James v. Morey, 2 Cow. 284 ; Goodriglit i'. Wells, 
 Doug. 771 ; Philips v. Brydges, 3 Ves. 125 ; Robinson v. Cuming, t. Tal- 
 bot, 164; 1 Atk. 475; Boteler v. Allington, 1 Bro. Ch. 72; Buchanan v. 
 Harrison, 1 Jon. & lien. 662; Merest r. James, 6 Madd. 118; Ilabergham 
 V. Vincent, 2 Ves. Jr. 204. 
 
 * Gardner v. Astor, 3 Johns. Ch. 53 ; James v. Morey, 2 Cow. 246 ; 
 
 (a) See Ames on Trusts (2ded.), (J>) " Where a purcha.ser of prop- 
 373. erty pays off a charge on it, without 
 
 503
 
 § 347.] 
 
 PROrEIlTIES OF THE TltUST ESTATE. [ciIAP. XL 
 
 convey lands to B. in trust for C. and her heirs, and C. 
 should be the heir of B., upon the death of B. the legal title 
 would descend to C, and thus both the legal and equitable 
 title would meet in C. ; but if C. was a married woman, and 
 it was plainly the intention of the grantor or settlor, to be 
 gathered from the whole instrument, that the trust should 
 not cease, but continue an active trust, the court would not 
 allow the equitable estate to merge in the legal, but a new 
 trustee would be appointed to take the legal title. ^ Of 
 
 Mechanics' Bank v. Edwards, 1 Barb. S. C. 272; Starr v. Ellis, 6 Johns. 
 Ch. 393; Donald v. Plumb, 8 Conn. 453; Den v. Vanness, 5 Ilalst. 102; 
 Hunt V. Hunt, 14 Pick. 374 ; Kursev. Yerwarth, 3 Swanst. 608 ; Saunders 
 V. Bournford, Fiuch, 424 ; Thorn v. Newman, 3 Swanst. 603 ; Mole v. 
 Smith, Jac. 490. 
 
 1 Gardner v. Astor, 3 Johns. Ch. 53 ; James v. Morey, 2 Cow. 246 ; 
 Mechanics' Bank v. Edwards, 1 Barb. S. C. 272 ; Starr v. Ellis, 6 Johns. 
 Ch. 393 ; Donald v. Plumb, 8 Conn. 453 ; Den v. Vanness, 5 Ilalst. 102 ; 
 Hunt V. Hunt, 14 Pick. 374 ; Nurse v. Yerwarth, 3 Swanst. 608 ; Saun- 
 
 showing an intention to keep it 
 alive, still, if its continuance as an 
 existing charge is beneficial to him, 
 it will be treated in equity as sub- 
 sisting, unless an intention to the 
 conti'ary can be inferred from the 
 terms of the purchaser's deed or 
 from other legitimate evidence." 
 Liquidation Estates P. Co. r. Wil- 
 loughby, [1896] 1 Ch. 726, 734; 
 [1898] A. C. 321. See In re Doug- 
 las, 28 Ch. D. 327. Whether there 
 is a merger in case of a purchase, or 
 the security is to be kept alive for 
 the benefit of the tran.sferee, de- 
 |5ends, as in other cases of merger, 
 upon the actual or presumed inten- 
 tion of the one in whom the two es- 
 tates are united. Hence there will 
 be no merger against the mortga- 
 gee's interest. If merger takes 
 place, it would seem clear that the 
 mortgage estate, at least where it 
 504 
 
 is regarded as simply a lien, must 
 merge in the equity. Adams v. 
 Angell, 5 Ch. D. 634 ; Thorne v. 
 Cann, [1895] A. C. 11 ; O'Loughlin 
 V. Fitzgerald, 7 Ir. R. Eq. 483; 
 Boardman v. Larrabee, 51 Conn. 
 39 ; Duffy v. McGuiness, 13 R. I. 
 595; Smith v. Roberts, 91 N. Y. 
 470 ; Fellows v. Dow, 58 N. II. 21 ; 
 EUinwood v. Holt, 60 N. II. 57; 
 Gibbs V. Johnson, 104 Mich. 120 ; 
 Patterson v. Mills, 69 Iowa, 755; 
 Coryell v. Klehm, 157 111. 462: 
 Clark V. Clark, 76 Wis. 306; Cox 
 V. Ledward, 124 Penn. St. 435 
 Chase v. Van Meter, 140 Ind. 321 
 Collins V. Stocking, 98 Mo. 290 
 Hudson B. C. Co. v. Glencoe Co., 
 140 ]\Io. 103 ; Gresham v. Ware, 79 
 Ala. 192. See Dickason v. Williams, 
 129 ISIass. 182 ; Keith v. AVheeler, 
 159 Mass. 161.
 
 CHAP. XI.] MERGER. [§ 348. 
 
 course, in law the estates will merge wherever the interests 
 meet; but courts of equity will preserve the estates separate, 
 where the rights or interests of the parties require it. If 
 the trustee acquires the equitable interest by any breach of 
 his duty, or by fraud, courts will not allow it to merge. ^ So 
 if there arc intervening heirs who would be scjueezed out, 
 the estates will not merge. ^ So if the legal estate comes to 
 the cestui que trust by a conveyance which turns out to be 
 void, there will be no merger.^ Whether charges upon an 
 estate, as mortgages, will merge in the legal title, upon being 
 paid off, depends upon the intention of the parties, and fre- 
 quently upon the interests and equities between them.* If 
 a leasehold is held by a wife in her right, but is in the occu- 
 pation of her husband, and he purchases the reversion, there 
 will be no merger.^ 
 
 § .348. Thus if a tenant for life pays off a charge or in- 
 cumbrance upon an estate, it will be considered that, as his 
 interest ceases with his life, he could never have intended 
 that the charge should be extinguished, and not survive for 
 the benefit of his representatives.^ (a) And the same rule 
 
 ders V. Bournford, Finch, 4'24 ; Thom v. Newman, 3 Swanst. 603; Mole 
 V. Smitli, Jac. 490. 
 
 1 1 Spence, Eq. Jur. 572. 
 
 2 Lewis I'. Stark, 10 Sm. & M. 128. 
 
 8 Elliott I'. Armstrong, 2 Blackf. 208; Buchanan v. Harrison, 1 John. 
 & II. GG2 ; Brandon i-. Brandon, 31 L. J. Ch. 47. 
 
 4 Hunt V. Hunt, 14 Pick. 374; Johnson v. Webster, 4 DeG., M. & G. 
 474 ; Tyrwhitt v. Tyrwhitt, 32 Beav. 244 ; Morley v. Morley, 25 L. J. Ch. 
 1 ; Comptou V. Oxenden, 2 Ves. Jr. 264; Forbes v. Moffatt, IS Ves. 390 ; 
 Morton v. Smith, 4 K. & J. 630; Tomlinson v. Steers, 3 Mer. 210; Smith 
 V. Phillips, 1 Keen, 694; Medley v. Horton, 14 Sim. 226; Brown v. Stead, 
 5 Sim. 53.3; Parry v. Wripht, 1 S. & S. 369; 5 Kuss. 512; Mocatta r. 
 IMurgatroyd, 1 P. W. 193; Greswold v. Marshara, 2 Ch. Cas. 170; Garnett 
 V. Armstrong, 2 Conn. & Laws. 458 ; Watts r. Symes, 16 Sim. 646 ; 
 Cooper V. Cartwright, 1 John. 679. 
 
 6 Clark V. Tennison, 33 Md. 85. 
 
 « Pitt V. Pitt, 22 Beav. 294 ; Burrell v. Egremont, 7 Beav. 205 ; Red- 
 
 (a) This presumption is not re- for life a'ld the remainderman are 
 butted by the fact that the tenant parent and child. In re Harvey, 
 
 505
 
 § 348.] PEOrEETIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 applies, though the tenant for life may be ultimately entitled 
 to the reversion in fee, subject to remainders which fail.^ 
 Even in this case, evidence may be given that the tenant for 
 life intended the charge to be merged and extinguished.'^ A 
 tenant in tail in possession has the power to convert the 
 estate into an absolute fee ; therefore, if he pays off an in- 
 cumbrance, the presumption is that he intended it to merge. ^ 
 But if the estate of the tenant in fee-simple or in tail is sub- 
 ject to any executory limitations that may defeat their estate, 
 or if they pay off the charges under any mistake as to their 
 title, the court would not allow the charges to merge or be- 
 come extinguished.^ But if a person pays or takes up the 
 charges or incumbrances, and afterwards the legal title 
 should come to him, the charges would merge. ^ So if a 
 person, having the legal title and holding charges and incum- 
 brances upon the estate, conveys in fee or in mortgage, and 
 makes no mention of the charges or incumbrances, they 
 would merge as between the grantor and grantee.^ Gener- 
 ally, where the owner in fee-simple pays off a charge or 
 incumbrance on an estate, the presumption of law is that 
 such charge or incumbrance will merge ; ' but if he owns 
 
 ington V. Redington, 1 B. & B. 139 ; Faulkner v. Daniel, 3 Hare, 217 ; 
 State r. Kock, 47 Mo. 582. 
 
 ^ Wyndham v. Egremont, Amb. 753 ; Trevor v. Trevor, 2 Myl. & K. 
 675. 
 
 2 Astley V. Milles, 1 Sim. 298. 
 
 8 St. Paul V. Dudley, 15 Ves. 173 ; Buckinghamshire r. Hobart, 3 
 Swanst. 199 ; Jones v. Morgan, 1 Bro. Ch. 206. 
 
 ^ Drinkwater v. Combe, 2 S. & S. 340 ; Shrewsbury v. Shrewsbury, 3 
 Bro. Ch. 120; 1 Ves. Jr. 227; Wigsell v. Wigsell, 2 S. & S. 361; Horton 
 V. Smith, 4 K. & J. 624 ; Buckinghamshire v. Hobart, 3 Swanst. 199 ; 
 Kirkham v. Smith, 1 Ves. 528. 
 
 6 Horton v. Smith, 4 K. & J. 624 ; Trevor v. Trevor, 2 Myl. & K. 675 ; 
 Wigsell V. Wigsell, 2 S. & S. 364. 
 
 6 Tyler v. Lake, 4 Sim. 351; Johnson v. Webster, 4 De G., M. &. G. 
 474. 
 
 ' Hood V. Phillips, 3 Beav. 513 ; Pitt v. Pitt, 22 Beav. 294 ; Gunter v. 
 
 [1896] 1 Ch. 137. See In re Good- id. 542 ; Tn re Morley, id. 738 ; In re 
 enough, [1895] 2 Ch. 537; In re Pitcairn, [1895] W. N. 139. 
 Crowther, id. 56 ; In re Cleveland, 
 
 506
 
 CHAP. XI.] SURRENDER. [§ 349. 
 
 only a partial interest, the presumption is that the charge 
 was to be kcjjt on foot. ^ Mere possession of the property by 
 tho trustee or by the cestui que truat is no evidence of a 
 merger. 2 
 
 § 349. Sometimes where an estate has been vested by deed 
 or Avill in trustees for a cestui que trusty wlietlier it is a fee 
 or some lesser estate, the law will presume that the trustees 
 have surrendered, conveyed, or assigned the estate, whatever 
 it was, to the cestui que trust.^ This presumption of law is 
 necessary for the quieting of titles. If such presumptions 
 could not be made, some titles would remain forever imper- 
 fect. There might be an outstanding legal estate, which 
 would at any time defeat the tenant, if there could not be a 
 presumption of a conveyance or surrender by the trustee to 
 the cestui que trust. This presumption is somewhat different 
 from that prescription by which one tenant Ijy an open, 
 peaceable, and adverse occupation, under a claim of right, 
 obtains the legal title as against another person. In such 
 case, after a definite period of time, a grant or conveyance is 
 presumed in favor of the tenant in occupation, though it may 
 bo well enough understood that no such grant or conveyance 
 was ever made. So there may be a presumption that a trus- 
 tee has conveyed to the cestui que trust, though such pre- 
 sumption may not always be founded on a belief that such 
 
 Gunter, 23 Beav. 571 ; Swinfen v. Swinfen, 29 Beav. 199 ; Tyrwhitt r. 
 Tyrwhitt, 32 Beav. 214. 
 
 1 Price V. Gibson, 2 Eden, 115; Swinfen r. Swinfen, 29 Beav. 199; 
 Corapton V. Oxenden, 2 Ves. Jr. 2G8; Donisthorpe v. Porter, 2 Kden, 162. 
 
 '^ Bros well v. Downs, 11 Fla. 62. 
 
 « England v. Slade, 4 T. R. 682 ; Wilson r. Allen, 1 J. & W. Oil ; Xoel 
 V. Bewley, 3 Sim. 103; Cooke v. Salton, 2 S. & S. 154; Hillary v. Waller, 
 12 Ves. 239; Lade v. Holford, Bull. N. P. 110; Doe v. Ililder, 2 B. & A. 
 782 ; Emery v. Grocock, 6 Madd. 54 ; Townshend v. Champernown, 1 Y. 
 & J. 583; Goodtitle v. Jones, 7 T. R. 47; Doe r. Sybourn. \fi. 2; Moore 
 r. Jackson, 4 Wend. 59; Dutch Church r. Mott, 7 Paige, 77 ; Jackson r. 
 Moore, 13 Johns. 513; 1 Green. Cruise Dig. 112; Matthews v. Ward, 10 
 Gill & J. 443 ; Jackson v. Pierce, 2 Johns. 220 ; Sinclair r. Jackson, 8 
 Cow. 513. 
 
 507
 
 § 351.] PKOPEKTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 conveyance was actually made.^ There is another difficulty 
 between trustees and cestuis que trust which does not exist 
 between adverse claimants of the same legal title. The 
 titles of the trustee and cestui que trust are not adverse to 
 each other, and generally the possession of the cestui que trust 
 is the possession of the trustee; at any rate it is generally 
 consistent with the legal title of the trustee. Therefore, 
 mere length of time as between trustee and cestui que trust 
 will afford no ground for a presumption of a conveyance or 
 surrender from the trustee to the cestui que trust,'^ as cestuis 
 que trust may occupy the estate indefinitely under a merely 
 equitable title. 
 
 § 350. This presumption has been discussed at length in 
 several cases, and some difference of opinion has been ex- 
 pressed ; ^ {a) but it seems now to be well settled that three 
 circumstances must concur in order to raise the presumption 
 of a conveyance or surrender by the trustee to the cestui que 
 trust : (1) It must have been the duty of the trustee to make 
 the conveyance ; (2) There must be some sufficient reason to 
 support the presumption; (3) The presumption must be in 
 support of a just title, and not to defeat it. 
 
 § 351. Thus where the cestui que trust becomes absolutely 
 entitled to the whole beneficial interest in the trust estate, 
 and the active duties of the trustee have ceased, the statute 
 of uses generally executes the legal title of the trustee to the 
 cestui que trust, and he obtains the legal as well as the 
 beneficial estate, (b) But there are cases where the active 
 
 1 Hillary v. Waller, 12 Ves. 252. 
 
 2 Keene v. Deardon, 8 East, 263 ; Goodson v. Ellison, 3 Russ. 588; 
 Hillary v. Waller, 12 Ves. 251 ; 1 Sugd. V. & P. 350, 470 ; Flournoy v. 
 Johnson, 7 B. Mon. 694 ; Doe v. Langdon, 12 Q. B. 719. 
 
 3 Lade v. Holford, Bull. N. P. 110 ; Doe v. Syboiirn, 7 T. R. 2 ; Good- 
 title L-. Jones, id. 49 ; Doe v. Read, 8 T. R. 118 ; see note, 1 Green. Cniise, 
 410 ; 2 Pow. on Mort. 491. 
 
 (a) See also M' Queen v. Meade, §§ 49-58, taking away the trustee's 
 28 L. T. N. s. 768. title, when merely nominal, and 
 
 (b) The N. Y. Rev. Stats, p. 728, vesting it in the beneficiary, do not 
 
 508
 
 CHAP. XI.] SUIiUENDKR. [§ 351. 
 
 duties of the trustee having ceased, the legal title does not 
 pass without a conveyance. In such cases it is clearly the 
 duty of the trustee to convey the legal title to the cestui que 
 trust, or to such person as he shall appoint.^ Therefore, if 
 the henelicial owner has heen a long time in possession, 
 dealing with the estate in every respect as his own, it will he 
 presumed that the trustee performed his duty and conveyed 
 the legal estate to the proper person. As where a mortgage 
 in fee was made to a trustee for the real mortgagee, and the 
 cestui que trust or real mortgagee took a conveyance of the 
 equity of redemj)tion, and ever after dealt with the estate as 
 if the legal fee was in him, a conveyance of the mortgage 
 was presumed to have been made to him by the trustee. ^ 
 There was a use of the estate in this case for one hundred 
 years. Where lands were conveyed to trustees for a reli- 
 gious society, which was afterwards incorporated, it was held, 
 after the use of the land for one hundred and forty years by 
 the incorporated society, that a conveyance by the trustees 
 might be presumed.^ So where several persons conveyed to 
 a trustee a tract of land for the purposes of a partition by 
 the trustee conveying back to each person his share in sev- 
 eralty, as set forth in the deed, it was held, after an occu- 
 pation of many years by each person in severalty according 
 to the intended partition, that the trustee might be presumed 
 to have conveyed.^ Where the trustees are to convey upon a 
 certain event, or at a certain time, as when a minor becomes 
 twenty-one, the presumption will arise after a much shorter 
 
 1 Langley v. Sneyd, 1 S. & S. 45 ; Carteret v. Carteret, 2 P. Wnis. 
 134 ; Angier r. Stannard, 3 Myl. & K. 571 ; Euglaud r. Slade, 4 T. 11. 
 682 ; Goodson v. Ellison, 3 Rnss. 583. 
 
 2 Noel V. Bewley, 3 Sim. 103. 
 
 8 Dutch Church v. Mott, 7 Paige, 77. 
 * Jackson v. Moore, 13 Johns. 513. 
 
 apply when the trustee has himself 114 ]Mo. 292. Those 'statutes pro- 
 an intt>rest in the grant, either as hibit passive trusts. Townshend c. 
 an individual or with others. King Gronimer, 125 N. Y. 446; Murphey 
 V. Townsend, 141 N. Y. 358. See v. Cook (S. D.),75 N. W. 387. 
 supra, § 142 ; Miller v. Roseuberger, 
 
 509
 
 § 353.] PROPEETIES OF THE TKUST ESTATE. [CHAP. XI. 
 
 lapse of time.^ Thus, where trustees were to convey to the 
 testator's son immediately on his coming of age, the son be- 
 came of age in 1788, and granted a long lease in 1789, the 
 court presumed a conveyance in 1792, or only four years 
 after the event, there being no proof of an actual conveyance. 
 Lord Kenyon said *' there was no reason why the jury should 
 not presume a conveyance from the trustees. They were 
 bound to make one, and a court would have compelled them 
 to have done it if they had refused. It is rather to be pre- 
 sumed that they did their duty. And as to time, the jury 
 may be directed to presume a conveyance and surrender in 
 much less time than twenty years. " ^ So where the direction 
 to the trustee to convey applies to only a part of the estate, 
 the court may presume a conveyance of the whole, if the 
 circumstances require or warrant such presumption.^ 
 
 § 852. If the estate was originally conveyed to trustees 
 for some particular purpose, as by way of security or indem- 
 nity, or to raise an annuity or portion, or for any other pur- 
 pose, as soon as the purpose is accomplished, the trustees 
 become mere dry trustees, and it is their duty to convey 
 the estate to the beneficial owner.* Where, from lapse of 
 time joined with other circumstances, there is a moral cer- 
 tainty that the purposes of the trust have all been accom- 
 plished, the court will act upon the certainty, and presume 
 a reconveyance although there is no direct proof of the 
 fact. 5 
 
 § 353. Where an estate is vested in trustees upon an ex- 
 press trust, they must retain the legal title until the trusts 
 
 1 Wilson V. Allen, 1 J. & W. 611 ; Hillary v. Waller, 12 Yes. 239 ; Doe 
 V. Sybourn, 7 T. R. 2. 
 
 2 England v. Slade, 4 T. R. 682 ; ISIarr v. Oilman, 1 Cold. 488. 
 8 Hillary v. Waller, 12 Ves. 239. 
 
 4 Hillary i'. Waller, 12 Ves. 239 ; Doe v. Sybourn, 7 T. R. 2 ; Cooke 
 V. Soltau, 2 S. & S. 154; Ex parte Holman, 1 Sugd. V. & P. 509 ; Emery 
 V. Grocock, 6 Madd. 54 ; Doe v. Wright, 2 B. & A. 710 ; Bartlett v. 
 Dowues, 3 B. & Cr. 616. 
 
 6 Emery i'. Grocock, 6 Madd. 54 ; Hillary v. Waller, 12 Yes. 252. 
 
 510
 
 CHAP. XI.] SURRENDER. [§ 3o4. 
 
 arc fully executed. Tlierefore, no conveyance will be pre- 
 sumed, so loni^^ as the trustees liave any duties to perfona ; 
 for that would be to presume a breach of trust, whicii will 
 never be jjresumcd : the fact must be j)roved by ccjuipettnt 
 evidence.^ In Aiken v. Smith, the court presumed that the 
 . conveyance was made at the death of the tenant for life, that 
 being the time fixed for the conveyance, and the time when 
 the active duties of the trustees ceased.^ 
 
 § 354. But there must always be sufficient reason for pre- 
 suming a reconveyance or surrender by the trustee; that is, 
 there must be some evidence of such a conveyance, or some 
 evidence upon which the presumption of the conveyance may 
 be founded. The mere fact that the trustee was to convey 
 upon the execution of the trust, or upon the happening of a 
 certain event, is not enough. There must be some circum- 
 stance from which it may be reasonably concluded that he 
 did in fact convey. Mere length of time is not enough. 
 Courts have refused after the lapse of one hundred and 
 twenty years to presume a reconveyance, when there were 
 no intermediate transactions to give force to the length of 
 time;^ for the possession during all that time may not 
 be inconsistent with the trustee's title.* However, great 
 lapse of time is an important circumstance; and the fact 
 that it was the duty of the trustees to convey is another 
 important circumstance. Very slight circumstances added 
 to these will be sufficient to justify a court or jury in pre- 
 suming a conveyance; and a conveyance may be presumed 
 where the estate has been dealt with by the beneficial 
 owner in a manner in which reasonable men do not deal 
 
 1 Beach v. Beach, 14 Vt. 28 ; Doe v. Staple, 2 T. R. 684 ; Keene v. 
 Deardon, 8 East, 248; Flournoy r. Johnson, 7 B. Mon. 694. 
 
 - Aiken v. Smith, 1 Sneed, 304. This case is opposed to Rees v. Wil- 
 liams, 2 M. & W. 749. 
 
 8 (ioodright i;. Swymmer, 1 Keiiyon, 385 ; Goodson v. Ellison, 3 Russ. 
 583 ; Langley v. Sneyd, 1 S. & S. 45 ; Doe v. Lloyd, Mathews on Tre- 
 sumptions, 215. 
 
 * Ibid. ; Keene i-. Deardon, 8 East, 363 ; Hillary v. Waller, 12 Ves. 
 250. 
 
 511
 
 § 356.] PROPERTIES OF THE TRUST ESTATE. [CHAP. XI. 
 
 with their estates, unless they are the legal as well as bene- 
 ficial owners. ^ 
 
 § 355. It is further said that the purpose of the presump- 
 tion must be to prevent a just title from being defeated by 
 mere matter of form.^ The presumption is a shield for de- 
 fence and not a sword for attack, as was said of another 
 principle of law. As the presumption was introduced for the 
 security of estates and the protection of innocent purchasers, 
 it cannot be set up to eject them from their estates; and 
 therefore the presumption will be made only in favor of the 
 person in whom the beneficial title is clearly vested for the 
 time being, whatever may be the extent of his equitable 
 interest.^ So it was not allowed to be set up in favor of a 
 defendant who showed no title but a mere naked possession, 
 which might have been obtained by a disseizin of the benefi- 
 cial owner. ^ And where two litigants both claimed to be 
 the beneficial owners, a surrender of an outstanding legal 
 estate or term was not presumed, lest either obtaining it 
 should defeat the other without regard to the merits of his 
 beneficial title.^ 
 
 § 356. In England, there was a system of conveyancing 
 by which outstanding terms were made to attend the legal 
 title and protect it. Much litigation and discussion has been 
 had over these terms, their merging in the legal title, and 
 their presumed surrender; They have very little importance 
 in this country, and the statement of the law concerning 
 them is not deemed necessary.^ 
 
 1 Garrard v. Tuck, 8 C. B. 248; Cottrell v. Hughes, 15 C. B. 532; Hil- 
 lary V. Waller, 12 Ves. 239; Wilson v. Allen, IJ. & W. 611. 
 
 2 Lade v. Holford, Bull. N. P. 110 ; Doe v. Sybourn, 7 T. R. 2 ; Good- 
 title V. Jones, 7 T. R. 47. 
 
 3 Doe V. Cook, 6 Bing. 179 ; Tenny v. Jones, 10 Bing. 75 ; Bartlett r. 
 Downes, 8 B. & Cr. 616 ; Noel v. Bewley, 3 Sim. 103 ; Wilson v. Allen, 1 
 J. &W. 611. 
 
 4 Doe r. Cook, 6 Bing. 179 ; England v. Slade, 4 T. R. 682 ; Doe v. 
 Sybourn, 7 T. R. 2. 
 
 6 Doe V. Wrighte, 2 B. & A. 710. 
 « See Hill on Trustees, pp. 253-263. 
 512
 
 CILVr. XII.] LEGAL AND ECjUITABLE ESTATES. [§ 357. 
 
 CHAPTER XII. 
 
 EXECUTORY TRUSTS. 
 
 §§ 357-359. Nature of an executory trust. The rule in Shellev's case. 
 
 § 3G0. Distinction between marriage articles and wills. 
 
 § 361. Construction of marriage articles and tlieir correction. 
 
 § 362. Wiiere strict settlements will not be ordered. 
 
 §§ 303, 364. Settlement of jiersoual property. 
 
 § 365. Construction of marriage .settlements. 
 
 § 366. Executory trusts under wills. 
 
 § 367. Who may enforce tlie execution of executory trusts. 
 
 § 368. Inducements for marriage. 
 
 §§ 369, 370. Construction of executory trusts under wills. 
 
 § 371. The words " heirs of the body " and " issue." 
 
 § 372. When courts will reform executory trusts. 
 
 § 373. How courts will direct a settlement of personal chattels. 
 
 § 374. Wlictlier courts will order a settlement in joint-tenancy. 
 
 § 375. What powers tlie court will order to be inserted in a settlement. 
 
 § 376. Settlement will be ordered cy pres the intention. 
 
 § 357. It is a fundamental proposition that equitable 
 estates are governed by the same rules as legal estates, other- 
 wise inextricable confusion would ensue. ^ If there was one 
 rule on the equity side, and another on the law side of courts, 
 there would be no certainty or uniformity of interpretation 
 or construction. Thus at common law a grant to A. for life, 
 remainder to the heirs of his body, vested an estate in fee-tail 
 in A., which he could bar, and cut off the remainder. The 
 same rule was apjtlicd to executed trusts. Tims if land is 
 given to A. and his heirs in trust for B. for life, remainder 
 to the heirs of his body, B. takes an equitable fee-tail ;2 for 
 
 1 Frye v. Porter, 1 Mod. 300; Price v. Sisson, 2 Beas. 108; Cowper r. 
 Covvpcr, 2 P. Wins. 753; Burgess v. Wheats, 1 Wm. Black. 123; Gushing 
 V. Blake, 30 N. J. ?:q. 689. 
 
 2 This illustration states tlie law only in States where the rule in Shel- 
 ley's case, as it is called, is in force. In States where the rule is ahrogated 
 by statute, those who take in remainder under the limitation, take as puiv 
 chasers; and the same rule applies to equitable estates. 
 
 VOL. I. — 33 513
 
 § 357.] EXECUTORY TRUSTS. [CHAP. XII. 
 
 the same rules apply to the two species of estate.^ Therefore 
 where technical words are used in the creation of an executed 
 trust estate, they will be taken in their legal technical sense,^ 
 though Lord Hardwicke once added this qualification, "unless 
 the intention of the testator or author of the trust plainly 
 appeared to the contrary." ^ But this qualification has been 
 time and again overruled, and it is now an established canon 
 that a limitation in trust, perfected and declared by the set- 
 tlor, shall have the same construction as in the case of an 
 executed legal estate.* But while technical words receive 
 their technical meaning in equitable as well as legal estates, 
 technical words are not always necessary to create and limit 
 equitable estates in fee. Thus an equitable fee may be 
 created in a deed without the word "heirs," and an equitable 
 entail without the words "heirs of the body," if the words 
 used in their popular sense are equivalent to the technical 
 words, or if the intention is sufficiently expressed and clear. ^ 
 Thus if an estate is devised to A. and his heirs in trust for 
 B. without other limitations, B. will take an equitable fee; 
 for it is plain that B. is to take an equitable estate as large 
 as the legal estate that passed to A. and his heirs, which is 
 a legal fee.^ But if an estate is conveyed by deed to A. and 
 his heirs in trust for the grantor for life, remainder for his 
 children, without the word "heirs," the children take an 
 estate for life only, in analogy to the rules of law J 
 
 1 Noble V. Andrews, 37 Conn. 346. 
 
 2 Wright V. Pearson. 1 Eden, 125; Bale v. Coleman, 8 Vin. 268; Jer- 
 voise i". Northumberland, 1 J. & W. 571 ; McPherson v. Snowdon, 19 Md. 
 197. 
 
 3 Garth V. Baldwin, 2 Ves. 655. 
 
 * Brydges v. Brydges, 3 Yes. Jr. 125; Austen v. Taylor, 1 Eden, 367; 
 Glenorchy v. Bosville, Ca. t. Talb. 19; Synge v. Hales. 2 B. & B. 507; 
 Wright V. Pearson, 1 Eden, 125. But see Cushing v. Blake, 30 N. J. Eq. 
 389; Carter v. Montgomery, 2 Tenn. Ch. 216. 
 
 5 Shep. Touch, by Preston, 106. 
 
 « Moore v. Cleghorn, 10 Beav 423; 12 Jur. 591 ; Knight ?\ Selby, 3 
 Man. & Gr. 92; Doe v. Cafe, 7 Exch. 675; Watkins r. Weston, 32 Beav. 
 238; McClintock v. Irving, 10 Ir. Ch. 481; Brenan v. Boyne, 16 Jr. Ch. 
 87; Betty v. Elliott, id. 110, n. ; lie Bayley, id. 215. 
 
 ' Overton v. Halliday, 14 Beav. 467; 15 id. 480; 16 Jur. 71; Lucas 
 514
 
 CHAP. XII.] LEGAL AND EQUITABLE ESTATES. 
 
 [§ 358. 
 
 § 358. Tlic rule in Shelley's case was never a rule of iji- 
 tention, or of construction to reach and can-y out the set- 
 tlor's intention; but it was established as an absolute rule of 
 property to olniate certain difficulties that would arise in 
 relation to tenures, if certain persons to whom property was 
 limited were allowed to take as purchasers, and not hy de- 
 scent' (a) It is notorious that the rule disappointed the in- 
 tention of settlors in most cases, and gave an absolute 
 disposal of the inheritance to the first taker, where the set- 
 tlor intended that such first taker should have only an estate 
 
 V. Brandreth, 28 Beav. 274 ; Tatbam r. Vernon, 29 id. 604 ; Nelson v. 
 Davis, 35 Ind. 474. 
 
 1 Doebler's App., G4 Penn. St. 9. 
 
 (a) The rule in Shelley's case 
 applies to leasehold as well as free- 
 hold estates. Hughes f. Nicklas, 
 70 Md. 484. Under that rule, a 
 devise to the testator's son for life 
 ■with remainder to his legitimate 
 child or children, if any, and if he 
 dies without issue, then to another 
 son of the testator for life and after- 
 wards to his legitimate child or 
 cliildren, if any, was held to give to 
 the first son, who died without 
 issue, an estate tail in the testator's 
 realty. Bo wen v. Lewi.s, 9 A. C. 
 890; see Morgan v. Thomas, 9 
 Q. B. 1). 643; Evans v. Evans, 
 [1892] 2 Ch. 173; Sandes v. Cooke, 
 21 L. R. Tr. 445; Neville r. Thacker, 
 23 id. 344; Clarkson v. Clarkson, 
 125 Mo. 381 ; Cowell v. Hicks (N.J. 
 Eq.), 30 Atl. Rep. 1091 ; Thompson 
 V. Tryon, 66 Vt. 191 ; Leake v. 
 Watson, 60 Conn. 498; Taney v. 
 Fahnley, 126 Ind. 88; Smith v. 
 Collins, 90 Ga. 411; Seeger v. 
 Leakin, 76 Md. 500 ; Hurst v. Wil- 
 son, 89 Tenn. 270; Earnhart r. 
 Earnhart, 127 Ind. 397; Gladsden 
 
 V. Desportes, 39 S. C. 131 ; Staraes 
 V. Hill, 112 N. C. 1; Hardage v. 
 Stroope, 58 Ark. 303 ; Moore r. 
 Waco, 85 Texas, 206. The rule 
 in Shelley's case is abolished by 
 statute in Massachusetts, ]\Iissis- 
 sippi, &c., and as to real estate in 
 New Hampshire. Trumbull r. 
 Trumbull, 149 Mass. 200 ; Sims r. 
 Pierce, 157 Mass. 52; Cloutman r. 
 Bailey, 62 N. II. 44. 
 
 The rule in Shelley's case ap- 
 pears, in England, to be a rule of 
 law, to be applied even when a tes- 
 tator expressly declares that it shall 
 not apph' to any of the limitations 
 of his will. A'an Grutten c. Fox- 
 well, [1897] A. C. 658; 66 L. J. Q. B. 
 745. And in this country the rule 
 has been held when applicable, in 
 the case of devises, not to be con- 
 trolled by the testator's intention. 
 Lippincdtt '". Davis. .")9 N. J. L. 
 241. But see De Vaughn r. Hutcb- 
 in.son, 165 U. S. 566; Hambel v. 
 Hambel (Iowa). 75 N. W. 673; 
 Brown v. Bryant (Texas), 44 S. W. 
 399. 
 
 515
 
 § 358.] EXECUTORY TKUSTS. [CHAP. XII. 
 
 for lifc.i As trusts are wholly independent of tenure, they 
 ought not to be affected by the rule, and a few cases have 
 seemed to indicate that they were withdrawn from the opera- 
 tion of it;'^ but it is now established that the same rule shall 
 apply to the same limitation whether it is of an equitable or 
 a legal estate.^ Thus the rule in Shelley's case will be ap- 
 
 1 For these reasons the rule is now abolished in many of the States by 
 statute. The proposition of the text, however, should be read in the light 
 of the remarks of Agnew, J., in Yarnall's App., 70 Penn. St. 340 : " In regard 
 to wills the cases show that technical phrases, as well as forms of expres- 
 sion decided in other cases, are not permitted to overturn the intent of 
 the testator, when that intent is clearly ascertained to be different in the 
 will under examination by the court. This broad principle needs no cita- 
 tion to support it, for it is founded on the universal rule that the intention 
 of the testator is the guide for the interpretation of wills. The rule in 
 Shelley's case is only an apparent not a real exception to this statement. 
 It sacrifices a particular intent only to give effect to the main intent of 
 the testator. All the authorities are agreed that this rule has no place in 
 the interpretation of wills, and takes effect only when the interpretation 
 has been fii-st ascertained. Mr. Fearne, Contingent Remainders, p. 188, 
 says, 'Nothing can be better founded than Mr. Hargi-ave's doctrine, that 
 the rule in Shelley's case is no medium for finding out the intention of 
 the testator ; that, on the contrary, the rule supposes the intention already 
 discovered and to be a superadded succession to the heirs, general or 
 special, of the donee for life, by making such donee the ancestor terminus 
 or stirps, from which the generation of posterity or heirs is to be accounted ; 
 and that whether the conveyance has or has not so constituted an estate 
 of freehold, with a succession engrafted on it, is a previous question which 
 ought to be adjusted before the rule is thought of; that, to resolve that 
 point, the ordinary rules for interpreting the language of wills ought to be 
 resorted to ; that when it is once settled that the donor or testator has 
 used words of inheritance according to their legal import, has applied 
 them intentionally to comprise the whole line of heirs of the tenant for 
 life, and has really made him the terminus, or ancestor by reference to 
 whom the succession is to be regulated, then comes the proper time to 
 inspect tlie rule in Shelley's case.' In Ilileman v. Bousliugh, 1 Harris, 
 351, Ch. J. (libson expresses the same idea in fewer words, thus : ' This 
 operates only on the intention of the testator when it has been ascer- 
 tained, not on the meaning of the words used to express it. The ascer- 
 tainment is left to the ordinary rules of construction peculiar to wills; but 
 when this is ascertairied, is. found to be within the rule, then there is but 
 one way ; it admits of no exception.' " 
 
 2 "Withers v. Allgood, cited, and Bagshaw i^ Spencer, 1 Ves. 150. 
 
 « Garth v. Baldwin, 2 Ves. 646 ; Wright v. Parsons, 1 Ed. 128 ; Brydges 
 516
 
 CIIAr. XII.] MEANING OF AN EXECUTOIiV TKL'ST. [§ 359. 
 
 plied to a j^ift to A. and liis lieirs in trust for B. for life, 
 and I'cuiaindcr to his huirs, or liuirs of liis body. The reason 
 of the rule as aj)j)lied to le^al estates was some real or fan- 
 cied dilliculty concerning tenures, or to l)ring estates one 
 generation sooner into commerce, or some other reason; for 
 neither judges nor text-writers arc agreed u\nm the original 
 reasons of the rule. The reason of the aj)i)lication of the 
 rule to limitations of trust estates is to i)reserve a uniformity 
 of the law in relation to the two kinds of estates in land. 
 This leads Mr. Lewin to say, that although the rule is not 
 equally applicable to trust estates, yet it is equally applied.^ 
 But the rule will not be applied to vest a fee or fee-tail in 
 the first taker, unless the word "heir" is used as a term of 
 succession, and not as a mere desiynatio penoncB. Thus if 
 an estate be devised to A. and his heirs in trust for B. for 
 life, and after his decease in trust for the j)erson who shall 
 then be his heir, B. takes an estate for life only, and the 
 person thus designated takes the estate by purchase.^ So if 
 the legal estate is given to A. in trust for B, for life, and 
 the legal remainder to the heirs of B., at his decease the 
 rule cannot apply ; for the legal and ecpiitable estate cannot 
 so coalesce that B. can take a fee either legal or equitable.^ 
 
 § 359. But in order that technical words may receive 
 their legal signification, and in order that the rule in Shel- 
 ley's case may be applied to limitations of equitable estates, 
 the trusts must be executed and 7wt executory.^ All trusts 
 
 V. Bi7dja;es, 3 Ves. 120; Jones v. Morgan, 1 Rro. Ch. 206: Webb r. 
 Shafteshury, 3 Myl. & K. 599; Roberts v. Dixwell, 1 Atk. 610; West, 
 536; Britton v. Twining, 3 Mer. 175; Spence c. Spence, 12 C. B. (n. s.) 
 199; Coape v. Arnold, 2 Sm. & Gif. 311; Noble v. Andrews, 37 Conn. 
 316; Cashing r. Blake, 30 N. J. Eq. 689; Sprague v. Sprague, 12 R. L 
 703 
 
 * Lewin on Trusts, SS (5th ed.). 
 
 2 CJreaves r. Simpson, 10 -fur. (\. s.) 609. 
 
 » Collier ('. :McHeaii, 34 Beav. 426 ; L. R. 1 Ch. 81. 
 
 * Eijerton r. Brownlow, 4 H. L. Gas. 210 ; Rochford r. Fitzniaurice. '2 
 Dr. & W. L'O ; 4 Ired. Eq. 384; Tatham v. Vernon, 29 Beav. 604; Bacon's 
 App., 57 Penn. St. 504. This distinction was very early established. 15ale 
 
 r,i7
 
 § 359.] EXECUTORY TRUSTS. [CHAP. XII. 
 
 are executory in one sense of the word ; that is, the trustee 
 luust have some duty, either active or passive, to perform, so 
 that the statute of uses shall not execute the estate in the 
 cestui que trust, and leave nothing in the trustee. ^ But such 
 is not the meaning of judges when they speak of executed 
 
 V. Coleman, 8 Via. 267; Stamford v. Hobart, 3 Bro. P. C. 33; Papillon 
 V. Voice, 2 P. Wms. 471 ; Gleuorchy v. Bosville, t. Talb. 3 ; Gower v. 
 Grosvenor, Barn. 62; Roberts v. Dixwell, 1 Atk. 607; Baskerville v. Bas- 
 kerville, 2 Atk. 279; Woodhouse v. Haskius, 3 Atk. 24; Read v. Snell, 
 2 Atk. 618; Marryat t;. Townley, 1 Ves. 102. Sevei'al of these cases were 
 decided by Lord Hardwicke ; but in Bagshaw v. Spencer, 1 Ves. 152, he 
 nearly confounded and denied the distinction. In Exel v. Wallace, 2 Ves. 
 233, however, Lord Hardwicke explained his meaning, and desired to 
 have it remembered that he did not mean to say that his predecessors 
 were wrong. The distinction, as stated in the text, is now firmly estab- 
 lished both in England and the United States. Barnard v. Broby, 2 
 Cox, 8; Wright v. Pearson, 1 Eden, 125; Austen v. Tayloi', id. 366; Stan- 
 ley V. Lennard, id. 95; Lincoln v. ^Newcastle, 12 Ves. 227; Jervoise v. 
 Northumberland, IJ. & W. 570; Deerhurst v. St. Albans, 5 Madd. 233; 
 2 CI. & Fin. 611 ; Blackburn v. Stables, 2 V. & B. 369; Douglass v. Con- 
 greve, 1 Beav. 59 ; 4 Bing. N. C. 1 ; 5 Bing. N. C. 318; Boswell i;. Dillon, 
 1 Dru. 297 ; Neves i;. Scott, 9 How. 211 ; 13 How. 268 ; 4 Kent, Cora. 218 
 et seq. ; Garner v. Garner, 1 Des. 444; Porter v. Doby, 2 Rich. Eq. 49; 
 Dennison v. Goehring, 7 Barr, 177 ; Findlay v. Riddle, 3 Biun. 152 ; 
 Edmoudson v. Dyson, 2 Kelly, 307 ; Wiley v. Smith, 3 Kelly, 559; Wood 
 V. Burnham, 6 Paige, 518 ; 26 Wend. 19 ; Imlay v. Huntington, 20 Conn. 
 162 ; Berry v. Williamson, 11 B. Men. 251 ; Home v. Lyethe, 4 H. & J. 
 434 ; Loring v. Hunter, 8 Yerg. 31 ; Bold v. Hutchinson, 5 De G., M. & G. 
 558. Lord Northington said that the words " executory trusts" seemed 
 to him to have no fixed signification. Lord King said a trust was execu- 
 tory where the party must come into court to have the benefit of the will. 
 Mr. Lewin says the true criterion is, where the assistance of the court is 
 necessary to complete the limitations, p. 89. Lord Eldon said the trust was 
 executory where the testator had not completed the devise, but had left 
 something to be done, so that the court must look to the intention. .Jer- 
 voise V. Northumberland, IJ. & W. 570. Lord St. Leonards distinguishes 
 the two as follows: " Has the testator been what is called, and very prop- 
 erly called, his own conveyancer ? Has he left it to the court to make out, 
 from general expressions, what his intention is, or has he so defined that 
 intention that you have nothing to do but to take that which is given you, 
 and to convert them into legal estates ? " Egerton v. Brownlow, 4 H. L. 
 Cas. 210. 
 
 1 Bagshaw v. Spencer, 1 Ves. 142; Egerton v, Brownlow, 4 H. L. Cas. 
 210 ; CoapeV. Arnold, 4 De G., M. & G. 585. 
 518
 
 CHAP. XII.] MEANING OF AN EXECUTORY TiaST. [§ 359. 
 
 trusts, and executory trusts. These words refer rather to the 
 manner and perfection of tlieir creation than to tlie action 
 of tlie trustee in administering the property. Thus a trust 
 created by a deed or will, so clear and certain in all its terms 
 and limitations that a trustee has nothing to do hut to carry 
 out all the pnjvisions of the instrument according to its letter, 
 is called an executed trust. In these trusts, technical words 
 receive their legal meaning, and the rules ai)jdicablc to legal 
 estates govern the equitahlc estates thus created.^ On the 
 other hand, an executory trust is where an estate is conveyed 
 to a trustee upon trust, to he by him conveyed or settled upon 
 other trusts in certain contingencies, or upon certain events, 
 and these other trusts are imperfectly stated, or mere outlines 
 of them are stated, to be afterwards drawn out in a formal 
 manner, and are to be carried into effect according to the 
 final form which the details and limitations shall take under 
 the directions thus given.^ They are called executory, not 
 because the trust is to be performed in the future, but because 
 the trust instrument itself is to be moulded into form and 
 perfected according to the outlines or instructions made or 
 left by the settlor or testator.^ (a) Thus land conveyed to A. 
 
 ^ Wright r. Pearson, I Eden, 12"); Austen v. Taylor, id. •'367 ; 4 Kent, 
 Com. 22U; Jones v. Morgan, 1 Bro. Ch. -!0(J ; Jervoise o. Northuniberlaud, 
 IJ. & W. 559 ; Boswell c. Dillon, 1 Dru. 291. 
 
 2 Austen v. Taylor, 1 Eden, 306 ; Wright v. Pearson, id. 125 ; Jervoise 
 V. Northumberland, 1 J. & W. 570; Coape v. Arnold, 4 De G. M. & G. 
 585; Neves v. Scott, 9 How. 211 ; Wiley v. Smith, 3 Kelly, 5."i9 ; Edmond- 
 son V. Dyson, 2 Kelly. 307; Wood v. Burnham, 6 Pai;.;e, 518; 26 Wend. 
 19; Thompson v. Fisher, L. R. 10 Eq. 207; Cushiug v. Blake, 30 N. J. 
 Eq. 689. 
 
 3 Ibid. 
 
 («) When it is uncertain who former executes itself by converting 
 
 the remaindermen will be, the tru.st its limitations into the correspoud- 
 
 is executory, and the remainder is ing legal estates, whereas in the 
 
 an equitable, and not a legal estate, latter, the court m.iy direct that 
 
 Cushman v. Ooleman, 92 Ga. 772; form of settlement or conveyance 
 
 Carney v. Kain, 40 W. Va. 758. which will best give effect to the 
 
 " In practice the chief distinction settlor's intention, and for this pur- 
 
 between an executed and an execu- pose may even disregard the cou- 
 
 tory trust lies in the fact that the struction the instrument would re- 
 
 519
 
 § 359.] EXECUTORY TRUSTS. [CHAP. XIL 
 
 upon trust, to settle the same upon B. and C. and their issue, 
 in the event of their marriage, is an executory trusts There 
 is a conveyance or settlement to be executed by A., and the 
 form or terms of this conveyance or settlement is to be de- 
 termined by the intention of the original grantor.^ When 
 this conveyance or settlement is finally determined and made, 
 the trust becomes executed in the sense of the word as appli- 
 cable to this distinction, and it is afterwards governed by all 
 the rules of an executed trust. The difference between the 
 two kinds of trusts is this. In executed trusts the rules of 
 property govern, and not the intention of the settlor, if it is 
 contrary to the law or rule of property.^ Thus if, in an exe- 
 cuted trust, an estate is given to A. in trust for B. for life, 
 with remainder to his heirs, B. takes an equitable fee, and 
 may convey the equitable inheritance and exclude his heirs, 
 although it is perfectly certain that the settlor intended that 
 B. should take an estate for his life only.* But an executory 
 trust is settled and carried into effect according to the inten- 
 tion of the settlor.^ Thus if an estate is conveyed to A. in 
 
 1 Ibid. 2 Ibid. 
 
 3 Choice V. Marshall, 1 Kelly, 97 ; Schoonmaker v. Sheely, 3 Hill, 165; 
 Kingsland i'. Rapelye, 3 Edw. 2 ; Brant v. Gelston, 2 John. Ca. 3S4. 
 
 «°Ibid. 
 
 6 Wood V. Burnhara, 6 Paige, 513; 26 Wend. 9 ; 4 Kent, Com. 219; 1 
 West, Ch. t. Hardwicke, 542. A mere direction to convey will not render 
 the trust executory, if the directions are so clear, and the limitations are 
 so certainly defined, that there is nothing to do but to convey in accord- 
 ance with them. In order that the trust may be executory, there must be 
 some room for construction, in order to determine the intention of the 
 settlor; that is, to determine what limitation shall be, and what shall not 
 be, introduced into the conveyance to be made. Egerton v. Brownlow, 4 
 H. L. Cas. 210; Austen v. Taylor, 1 Ed. 361 ; Weight i'. Leigh, 15 Yes. 564; 
 Graham v. Stewart, 2 Macq. H. L. Ca. 205 ; Herbert v. Blunden, 1 Dr. & 
 Walsh, 78 ; Elast v. Twyford, 9 Hare, 713 ; Doncaster v. Doncaster, 3 K. 
 & J. 26; Stanley v. Stanley, 16 Ves. 491; Glenorchy v. Bosville, 1 Lead. 
 Ca. Eq. 20, and notes; McElroy v. McElroy, 113 Mass. 509 ; Gushing v. 
 Blake, 30 N. J. Eq. 689. 
 
 ceive at law." Per Garrison, J., in ton, 59 N. H. 364 ; Rupra, § 82, note; 
 Pillot V. Landon, 46 N. J. Eq. 310, Pittman v. Pittman (N. C.), 11 L. 
 313. See also Smith's Estate, 144 R. An. 456, and note. 
 Penn. St. 428 ; Bartlett v. Reming- 
 
 520
 
 CHAP. XII.] MARRIAGE ARTICLES. [§ 360. 
 
 trust, Avith instructions to convey it to B. for life, with rc- 
 muiuder to his heirs, or to convey it in trust for Ji. fur life, 
 with remainder to his heirs, li. takes an estate for life only, 
 and his heirs take by purchase at his decease, if such appeared 
 to be the intention of the original gift or grant. ^ 
 
 § 3G0. In the history of executory trusts, still another dis- 
 tinction has been drawn, or a distinction between executory 
 trusts created by marriage articles, and executory trusts 
 created by wills. This is not so much a difference between 
 two classes of executory trusts, as it is a difference between 
 the rules that will be applied to the interifrctation of mar- 
 riaje articles and of to ills, in order to determine the intention 
 of the settlor or the testator. Lord Eldon once said, that 
 "there was no difference in the execution of an executory 
 trust created by will, and a covenant in marriage articles; 
 such a distinction would shake to their foundation the rules 
 of equity. "2 But the great chancellor afterwards modified 
 his expression.^ And certainly there is no diiference in the 
 execution of the two trusts when it is settled what they are; 
 but there is a difference in the construction of marriage 
 articles and of wills in order to reach the intention of the 
 creator of the trusts. Thus, in marriage articles, the inten- 
 tion of the parties to the articles is presumed to be a provi- 
 sion for the issue of the marriage, and such construction is 
 given to the articles as to carry into effect this presumed 
 intention if possible; while in construing wills, in order to 
 settle the limitations of a trust, there is no such presumed 
 leading intention ; or, as Sir W. Grant put it, " I know of no 
 difference between an executory trust in marriage articles 
 and in a will, except that the object and purpose of tlie 
 former furnish an indication of intention, which must be 
 wanting in the latter. Where the object is to make a provi- 
 
 1 Ibid.; Savage w. Tyers, L. R. S Ch. ;?50. 
 
 2 Lincoln v. Newcastle, 12 Ves. 230 ; and see Tinner v. Sargent, 17 
 Beav. 5in ; Reed v. Palmer, 5:5 Penn. St. ;579. 
 
 * Jervoise r. Northumberland, 1 J. & W. 574; Townsend r. Mayer. 3 
 Beav. 443; Lassence r. Tierney, 1 Mac. & G. 551 ; (Gardner c. Stevens, 30 
 JL. J. Ch. 199 ; Crofton i-. Davies, L. R. 4 C. B. 159. 
 
 521
 
 § 361.] EXECUTOKY TllUSTS. [CHAP. XII. 
 
 sion by the settlement for the issue of a marriage, it is not 
 to be presumed that the parties meant to put it in the power 
 of the father to defeat that purpose, and appropriate the 
 estate to himself. If, therefore, the agreement be to limit 
 an estate for life with remainder to the heirs of the body, the 
 court decrees a strict settlement in conformity to the presum- 
 able intention. But if a will directs a limitation lor life 
 with remainder to the heirs of the body, the court has no such 
 ground for decreeing a strict settlement. " ^ 
 
 § 361. Thus if, in marriage articles, the real estate of the 
 husband or of the wife is limited to the Jieirs of the body or to 
 the issue '^ of the contracting parties, or either of them, or to 
 the issue of the body, or to the issue and their heirs, ^ so 
 that the words and limitations, taken in their legal sense, 
 would enable the parents, or one of them, to defeat this pro- 
 vision for the children, equity will construe the articles to 
 mean that the estate is limited to the parents for life, and 
 the children will take at the decease of their parent or par- 
 ents as purchasers ; and equity will decree a formal settle- 
 ment to be drawn in such way as to carry out this purpose.^ (a) 
 If a settlement is already drawn after the marriage, but not 
 in accordance with this rule, equity will correct and reform 
 it so as to carry out this intention. ° But if the settlement 
 
 1 Blackburn v. Stables, 2 Ves. & B. 369 ; Bale v. Coleman, 8 Vin. 267; 
 Strafford v. Powell, 1 B. & B. 25 ; Synge v. Hales, 2 B. & B. 508; Maguire 
 V. Scully, 2 Hog. 113; Rochford v. Fitzmaurice, 1 Conn. & Laws, 173: 2 
 Dr. & War. 18 ; 4 Ir. Eq. 375 ; Jervoise v. Northumberland, 1 J. & W. 
 574; Deerhurst v. St. Albans, 5 Madd. 260. 
 
 2 Dod V. Dod, Amb. 274. 
 
 3 Phillips V. James, 2 Dr. & Sm. 404. 
 
 4 Handick v. Wilkes, 1 Eq. Cas. Ab. 393; Gilb. Eq. 114; Trevor w. 
 Trevor, 1 P. Wms. 622 ; Rochford v. Fitzmaurice, 1 Conn. & Laws. 173 ; 
 2 Dr. & War. 18; 4 L-. p:q. 375; Cu.sack v. Cusack, 5 Bro. P. C. 116; 
 Davies v. Davies, 4 Beav. 54 ; Griffith v. Buckle, 2 Vern. 13 ; Jones v. 
 Langton, 1 Eq. Cas. Ab. 392 ; Stonor v. Curwen, 5 Sim. 289 ; Barnaby v. 
 Griffin, 3 Ves. 206; Home i-. Barton, 19 Ves. 398; Coop. 257; 22 L. J. 
 (x. s.) Ch. 225. 
 
 5 Warrick ;'. Warrick, 3 Atk. 293 ; Sheatfield v. Sheatfield, Ca. t. Talb. 
 
 (a) See Grier v. Grier, L. R. 5 H. L. 688, 699. 
 522
 
 CHAP. XII.] MARRIAGE ARTK'LES. [§ 3G1. 
 
 was formally drawn out before marriage contrary to this rule, 
 the court will jjrcsume that the ])artie8 abandoned tlie arti- 
 cles, and entered into a new agreement, as expressed in the 
 settlement.^ If, however, a settlement before marriage is 
 expressed on its face to be made to carry out the articles, and 
 it docs not carry them out in this respect, erpiity will reform 
 it. 2 So if it can be shown in any other way that the formal 
 settlement was intended to cari-y out the articles, and it does 
 not do so, equity will reform it on the ground of mistake,^ or 
 if the settlement is made in the very words of the articles, 
 and the legal effect of the words of the articles and settle- 
 ment is different from the intention of the parties, the settle- 
 ment will be corrected and reformed in order to carry out 
 the exact intention of the parties.* If, however, there arc 
 any intervening rights, as those of an innocent purchaser 
 without notice, his rights of course will be protected.^ So it 
 is established that daughters are included under the general 
 term of heirs or issue, and that they take as purchasers.^ 
 And children includes grandchildren." This has been held in 
 England.^ Of course in the United States, where primogen- 
 
 176; Legg r. Goldwire, id. 20; Burton v. Hastings, Gilb. Eq. 113; over- 
 ruling same case 1 Eq. Cas. Ab. 393 ; Briscoe v. Briscoe, 7 Ir. Eq. 129. 
 
 ^ Legg V. Goldwire, Ca. t. Talbot, 20; Warrick v. Warrick, 3 Atk. 
 291. 
 
 2 Honor v. Honor, 1 P. Wins. 123; West v. Erris.sey, 2 P. Wms. 349; 
 Roberts v. Kingsley, 1 Ves. 238. 
 
 8 Bold V. Hutchin.son, 5 De G., M. & G. 568; Rogers v. Earl, 1 Dick. 
 294; 1 Sugd. V. & P. 143. 
 
 * West V. Errissey, 2 P. Wms. 349 ; Roberts v. King.sley, 1 Vos. 238; 
 Honor v. Honor, 1 P. Wms. 128; 2 Vern. 6."i8; Powell v. Price, 2 P. Wras. 
 535; Gaillard v. Pardon, 1 .Mc^Mul. Eq. 358; Neves v. Scott, 9 How. 197; 
 Gause v. Hale, 2 Ired. Eq. 241; Smith i: Maxwell, 1 Hill. Eq. 101; Allen 
 V. Rumph, 2 Hill, Eq. 1 ; Briscoe v. Briscoe. 7 Ir. Eq. 129. 
 
 6 Warrick (;. Warrick, 3 Atk. 291; Trevor v. Trevor, 1 P. Wms. 622; 
 West V. Errissey, 2 P. Wms. 349. But if the purchaser have notice of 
 the articles, they may be enforced against him. Davies /•. Davies. 4 
 Beav. 54 ; Thompson v. Simpson, 1 Dr. & War. 491 ; Abbott v. Geraghty, 
 4 Ir. Eq. 15. 
 
 « West r. Errissey, 2 P. Wms. 349 ; Comyn, R. 412; 1 Bro. P. C. 225. 
 
 ' Scott V. Moore, 1 Wins. (N. C.) Eq. 98. 
 
 8 Bmtou V. Hastings, 2 P. Wms 535; Gilb. Eq. 113; 1 Y.i\. Cas. Ab. 
 
 523
 
 § 362.] EXECUTORY TRUSTS. [CHAP. XIL 
 
 iture is abolished, estates will be settled upon sons and 
 daughters equally, or upon daughters alone in default of sons. 
 But if the children or issue of the marriage arc provided for 
 in some other way, as by portions to be raised for them in 
 such manner that it appears that they are not intended to 
 take as purchasers of the particular estate under the settle- 
 ment, then the rule in Shelley's case will prevail, and the 
 parents or parent may sell the whole estate. ^ And so where 
 there is an actual present conveyance of personal property by 
 a marriage contract executed before marriage in trust for the 
 wife, and at her death to the heirs of her body, it was held to 
 be an executed trust, there being no further conveyances to 
 be executed, and that the rule in Shelley's case applied. ^ 
 
 § 362. In England, when a married woman could not 
 convey her interest in real estate, a strict settlement was not 
 ordered under marriage articles that limited the husband^s 
 estate to the heirs of the body of the wife, for the reason that 
 this created an entail that could not be barred without con- 
 siderable difficulty; but since the Fines and Recoveries Act, 
 the difficulty is removed.^ Nor will the court order a strict 
 settlement, if there is anything in the nature of the limita- 
 tions, or otherwise on the face of the articles, which indicates 
 that such was not the intention of the parties, for the reason 
 that the rule now under discussion was established in order 
 to carry out the intention of the parties. If, therefore, the 
 intention of the parties appears to be in accordance with, or 
 not contrary to, the ordinary rule, the ordinary rule will be 
 allowed to prevail.* 
 
 393; Hart v. Middlehurst, 3 Atk. 371 ; IMaguire v. Scully, 2 Hog. 113; 
 1 Beat. 370; Marryat v. Townley, 1 Ves. 105; Phillips v. Jones, 4 Dr. & 
 Sm. 406 ; 3 De G., J. & S. 72. 
 
 1 Powell V. Price, 2 P. Wms. 535; Fearne's Con. Rem. 103. 
 
 2 Carroll v. Renick, 7 Sm. & M. 799 ; Tillinghast v. Coggeshall, 7 R. I. 
 383. 
 
 3 Rochford v. Fitzmaurice, 2 Dru. & W. 19 ; Highway v. Banner, 1 Bro. 
 Ch. 587; Howel v. Howel,2 Ves. S.^S; Green v. Ekins, 2 Atk. 477; Honor 
 V. Honor, 1 P. Wms. 123. 
 
 * Rochford v. Fitzmaurice, 2 Dru. & W. 19 ; Highway v. Banner, 1 Bro. 
 524
 
 CHAP. XII] MARRIAGE ARTICLES. [§ 364 
 
 § 3G3. If personal property is agreed to be settled on the 
 parents for life, and then to their heirs, or the heirs of their 
 bodies, the chattels will not vest in the parents absolulcls-, 
 but in the heirs when they are born;^ and it is not necfssary 
 that they should survive their ]»arents, or b(.'Conic actual 
 heirs,2 unless the gift is to the }»an'nts and tlicir heirs living 
 at the death of the surviving parent, or there are other equiv- 
 alent words. ^ 
 
 § 304. If there is a covenant in marriage articles to settle 
 personal property upon the same trusts, and for the same 
 purposes, as the real estate is settled, the court will not apply 
 the same limitations to the personal as to the real estate, for 
 that would be to vest an absolute interest in the heirs at their 
 birth; but the court will insert a provision making the per- 
 sonal property follow the course of the real estate.^ Courts 
 will also insert a provision that the children or issue shall 
 take, as tenants in common, and not as joint-tenants, on 
 account of the inconveniences of joint-tenancies, and from the 
 presumed intention of the parties;^ and so the court will 
 
 Ch. 587; Ilowel v. Ilowel, 2 Ves. 358; Green v. Ekins, 2 Atk. 477 ; Honor 
 V. Honor, 1 P. Wms. 123; Power v. Price, 2 P. Wras. 535; Chambers v. 
 Chambers, 2 Eq, Cas. Ab. 35; Fitzg. 127. 
 
 1 Ilodgeson v. Bussey, 2 Atk. 89; Barn. 195; Bartlett r. Green, 13 
 Sim. 218. ■•^ Theebridge r. Kilburne, 2 Ves. 233. 
 
 8 Read v. Snell, 2 Atk. 642. 
 
 * Stanley v. Leigh, 2 P. Wms. 690; Gower v. Grosvenor, Barn. 63; 
 5 Madd. 348; Newcastle v. Lincoln, 3 Ves. 387, 394, ;;97 ; Si-arsdale v. 
 Curzon, 1 John. & U. 51. The matter referred to in the text scMom or never 
 arises in the marriage settlements made in the United States, as primo- 
 geniture is abolished, and entails ou the eldest son are seldom resorted to. 
 But where personal chattels are made to vest under a marriage settlement 
 in the eldest son as heir, and such son dies under age, very awkward 
 effects follow; and, under covenants to settle personal property upon the 
 same limitations as are applied to a settlement of real estate wherein the 
 eldest son takes as heir, it was a matter of great discussion in the Court 
 of Chancery and in the House of Lords, what kind of provisions ought to 
 be inserted to protect the parents and other children in case the eldest son 
 died under age and without issue. Newcastle r. Lincoln, 3 Ves. 387; 12 
 Ves. 21 S. 
 
 6 Taggart c. Taggart, 1 Sch. & Lef. 88 ; lligden t;. Vallier, 3 Atk. 734; 
 
 525
 
 § 365.] EXECUTORY TRUSTS. [CHAP. XII. 
 
 insert other words and conditions, and vary the literal in- 
 struction of the articles in order to carry out the presumed 
 intention, and promote a convenient settlement for the pro- 
 tection and security of all the parties,^ as if the settlement is 
 to be of all the property which the settlor might thereafter be- 
 come entitled to, it will be construed to embrace only the prop- 
 erty acquired duringthe marriage.^ The court will not always 
 order a formal settlement to be drawn out, but will declare the 
 meaning and intention of the articles, and leave the parties 
 to act upon the declaration, as if it was a formal settlement 
 drawn out and executed by them.^ So the court will some- 
 times rectify the settlement drawn under articles by a decree, 
 without ordering a new deed to be drawn out and executed.* 
 
 § 365. Marriage settlements, whether made in pursuance 
 of articles, or under directions contained in wills, or under 
 decrees of the court, are matters in which courts exercise 
 the most liberal principles of equity. If a settlement is drawn 
 up under a decree, and it is not in all respects in accordance 
 with the decree, the court will set it aside, and order a new 
 settlement.^ In Grout v. Van Schoonhoven, the court ordered 
 a new settlement, in substance that the trust should be for 
 the wife during her life without power of anticipating the 
 income; and upon her death for the use of her husband for 
 life, in case he survived her ; and, after the death of both, to 
 be divided equally among all their children then living, and 
 the descendants of such as had died leaving issue, per stirpes ; 
 with a power to make advances with the approbation of the 
 trustees to the children, on their attaining full age or being 
 married, out of the capital fund, in anticipation of the ulti- 
 
 Marryat v. Townley, 1 Yes. 103. Joint-tenancy is abolished by statute in 
 most of the United States, with the exception, in some States, of gifts and 
 grants to husband and wife. 
 
 1 Kentish r. Newman, 1 P. Wms. 23i ; Martin v. Martin, 2 R. & M. 
 507: Master v. De Croismar, 11 Beav. 184; Targus v. Puget, 2 Ves. 194. 
 
 2 Steinberger v. Potter, 3 Green, Ch. 452. 
 8 Byam v. Byam, 19 Beav. 58. 
 
 4 Tebbitt v. Tebbitt, 1 De G. & Sm. 506. 
 
 5 Temple v. Hawley, 1 Sandf. Ch. 154. 
 
 526
 
 CHAI. XII.] MARRIAGE SETTLEMENTS. [§ 365. 
 
 mate distribution, in order to set them up in the world. ^ An 
 advance cannot be made in order that a child may ])ut the 
 money in his pocket, but an advance may be made to trustees 
 under a marria<^o settlement for a child. '-^ Where thei'e was 
 power of advancement to a married woman, it was lield that 
 an advance to her husband to set him uj) in l)usines8 might 
 be allowed ; ^ and so where there was power in a settlement to 
 withdraw funds, and lay them out in the purchase of a trade 
 for the benefit of husband and wife, the power may be exer- 
 cised for the benefit of one after the death of the other.* 
 In Imlay v. Huntington, a husband covenanted that he would 
 pay over to certain trustees $10,000, and one-half of certain 
 other expected moneys of his intended wife, to be held by 
 said trustees in trust for the wife for the term of twenty years, 
 after which time they were to convey to such persons as the 
 wife should ap])oint. The marriage was consummated, and 
 the husband received $(30,000, which he continued to hold 
 and manage as his own during the lifetime of his wife, mak- 
 ing no payment to the trustees, and neither the trustees nor 
 the wife requesting him to pay the sum over, or to make any 
 settlement in pursuance of the articles. On the death of the 
 wife, at the end of twenty years, her brothers and sisters, 
 there being no issue of the marriage, applied to the court by 
 bill in equity for the execution of the marriage settlement, in 
 accordance with the articles and covenants entered into by 
 the husband before marriage: but it was held that it was 
 com])ctent for the wife to discharge the husband from the 
 fuliUment of the covenants, and to abandon the trust ; that, 
 under the circumstances of the case, the articles were aban- 
 doned by the wife and nil the parties ; that the wife's personal 
 property vested absolutely in the husband; and that the 
 wife's heirs had no right to maintain the bill for any part of 
 her personal estate.^ 
 
 1 Grout t'. Van Schoonhoven, 1 Sandf. Ch. 342. 
 
 2 Roper V. Curzon, I.. II. 11 Eq. 452. 
 
 8 In re Kershaw's Trust, L. R. 6 Eq. 322. 
 < Doorly r. Arnold, 18 W. R. .540. 
 
 ^ Inday v. Huntington, 20 Conn. 146 ; Jones v. Iliggins, L. R. 2 Eq. 
 538. 
 
 527
 
 § 366.] EXECUTORY TRUSTS. [CHAP. XII. 
 
 § 366. In executory trusts created by wills, no presumption 
 arises a priori that a provision was intended for the children 
 of the first taker, as in marriage settlements, and that such 
 chihiren were intended to take as purchasers. If the trust 
 be "for A. and the heirs of his body, "^ or "for A. and the 
 heirs of his body and their heirs," '^ or "for A. for life and 
 after his decease to the heirs of his body," ^ A. will be tenant 
 in tail; and he may disappoint his heirs by barring the 
 entail. So, where a testator directed an estate to be settled 
 on his "daughter and her children, and, if she died without 
 issue," remainder over, the court held that the daughter was 
 tenant in tail ; and that in a voluntary devise the court must 
 take it as they find it, though upon like words in a marriage 
 settlement it might be different.^ So where a testator 
 directed lands to be settled on his "nephew for life, remain- 
 der to the heirs male of his body, and the heirs male of every 
 such heir male severally and successively, one after another, 
 as they should be in seniority and priority of birth, every 
 elder and the heirs male of his body to be preferred before 
 the younger," it was held that, although the nephew took by 
 a voluntary executory devise, the court must execute it in 
 the words of the will and according to the rules of law, and 
 that equity could not carry the words further than the same 
 words would operate at law, and that the nephew took an 
 estate tail. The words in this case all went upon the idea of 
 an entail.^ So if there is a direction that the trustees shall 
 not give up their trust until "a proper entail was made to 
 the heir male by them. " ^ But in another similar executory 
 trust. Lord Eldon declined to compel a purchaser to accept 
 the title, on the ground that the entail was too doubtful to 
 
 1 Harrison v. Naylor, 2 Cox, 217; Bagshaw v. Spencer, 1 Ves. 151; 
 Marshall v. Bousley, 2 Madd. 166 ; Robertson v. Johnston, 36 Ala. 197. 
 
 2 Marryat v. Townley, 1 Ves. 104. 
 
 8 Blackburn v. Stables, 2 V. & B. 270; Seale v. Seale, 1 P. Wms. 290; 
 Meure v. Meure, 2 Atk. 266 ; Robertson v. Johnston, 36 Ala. 197. 
 
 * Sweetapple r. Bindon, 2 Vern. 536. 
 
 6 Legatt V. Sewell, 2 Yern. 551 ; McPherson v. Snowden, 19 IMd. 197. 
 
 8 Blackbnrn v. Stables, 2 V. & B. 307 ; Marshall v. Bousley, 2 Madd. 
 166 ; Dodson v. Dodson, 3 Bro. Ch. 405. 
 528
 
 CHAP. XII.] WHO MAY ENTORCE THE SETTLEMENT. [§ 3G7. 
 
 be acted upon in so grave a matter.^ Where a testator de- 
 vised real estate to his daughter, then unmarried, in trust for 
 her heirs, she to receive the income for her and their support 
 and education, and, if she should die leaving no heirs, then 
 over to her brothers and sisters, it was held that the word 
 " income " passed the estate to the daughter, that the word 
 "heirs " was a word of limitation, and that the daughter took 
 an estate tail.^ In the gift of a fund the term "heirs at 
 law " means next of kin or persons entitled under the statute 
 of distributions relating to personal property. ^ 
 
 § 3G7. In executory trusts under marriage articles, many 
 distinctions arise upon the question. Who may enforce their 
 specific performance, and compel the execution of the formal 
 deed and the disposal of the property in accordance with the 
 settlement that should have been made under the articles? 
 Thus the general rule is, that parties, seeking a specific exe- 
 cution of such articles, must be those who come strictly 
 within the reach and influence of the consideration of the 
 marriage, or who claim through them, as the wife, or the 
 husband, and the issue of the husband or wife, or both. As 
 a general rule, mere volunteers, or collateral relatives of 
 husband or wife, cannot interfere and ask for a specific per- 
 formance of the articles.* (rt) But there are so many excep- 
 
 » Jervoise v. Northumberland, 1 J. & W. 559 ; Woolmore v. Burrows, 
 1 Sim. 512. 
 
 2 Allen r. Henderson, 49 Pa. St. 333. 
 
 8 White V. Stanfield, 146 Mass. 424. 
 
 * Vernon v. Vernon, 2 P. Wms. 594 ; Edwards v. Warwick, id. 171 ; 
 Osgood V. Strode, id. 245; Ithell v. Beane, 1 Ves. 215; 1 Dick. 132; Ste- 
 
 (a) In Re Cameron and Wells, the interest of the collateral is or is 
 
 37 Ch. D. 32, 37, Kay, J., said: not that of a volunteer." It was 
 
 " When any collateral takes an in- there held that the rule of Newstead 
 
 terest under a marriage settlement, v. Searles (1 Atk. 265 ; 9 A. C. 320, 
 
 it may be the bargain between the n.), by which the limitations of a 
 
 husband and wife that the collateral widow's marriage settlement in 
 
 should so take ; but that does not favor of her children by a former 
 
 make him any the less a volunteer, marriage are not voluntary, does not 
 
 because no consideration moves extend to the like limitations in the 
 
 from him, which is the test whether marriage settlement of a widower. 
 VOL. I. — 34 5L9
 
 § 367.] EXECUTORY TRUSTS. [CHAP. XII. 
 
 tions and qualifications to this rule, that a case is rarely 
 decided upon it. The principle is, that, to bring collateral 
 relations within the reach and influence of the consideration, 
 there must be something over and above that flowing from 
 the immediate parties to the marriage articles, from which 
 it can be inferred that relatives beyond the issue were in- 
 tended to be provided for, and that, if the provision in their 
 behalf had not been agreed to, the superadded consideration 
 would not have been given. ^ While this is the general rule, 
 the court seize hold of the slightest valuable consideration to 
 give effect to the settlement in favor of collateral relatives; 
 and it need not appear that these slight considerations were 
 inserted in favor of distant relatives : the court will presume 
 such to be the case.^ The result of all the cases is, that, if 
 from the circumstances under which marriage articles were 
 entered into by the parties, or as collected from the face of 
 the instrument itself, it appears to have been intended that 
 the collateral relatives in a given event should take the 
 estate, and a proper limitation to that effect is contained in 
 the articles, a court of equity will enforce the trust for their 
 benefit. Such parties are not volunteers outside the deed, 
 but come fairly within the influence of the consideration 
 upon which it is founded. Such consideration extends 
 through all the limitations of the articles for the benefit of 
 the remotest persons provided for, consistent with the rules 
 of law. 3 But of course there is a more direct equity in favor 
 
 phens V. Trueman, 1 Ves. 73 ; Pulvertoft v. Pulvertoft, 18 Yes. 90 ; 2 
 Kent, Com. 172, 173 ; Atherly on Mar. Sett. 145 ; Bradish v. Gibbs, 3 
 Johns. Ch. 550 ; West v. Errissey, 2 P. Wms. 349 ; Kettleby v. Atwood, 
 1 Vern. 298, 471 ; Williamson v. Codrington, 1 Ves. 512 ; Colman v. Sar- 
 rel, 1 Ves. Jr. 50 ; 3 Bro. Ch. 13; Ellison v. Ellison, 6 Ves. 662 ; Graham 
 V. Graham, 1 Ves. Jr. 275 ; Wycherly v. Wycberly, 2 Eden, 177, note ; 
 Bunn V. Winthrop, 1 Johns. Ch. 336 ; Gevers v. Wright, 3 Green, Ch. 
 330. 
 
 1 Osgood V. Strode, 2 P. Wms. 245 ; Goring v. Nash, 3 Atk. 186 ; 
 Hamerton v. Whitton, 2 Wils. 356; Williamson v. Codrington, 1 Ves. 
 512 ; Bleeker v. Bingham, 3 Paige, 246. 
 
 2 Neves v. Scott, 9 How. 209 ; Stephens v. Trueman, 1 Ves. 73 ; Ed- 
 wards V. Warwick, 2 P. Wms. 171. 
 
 " Neves v. Scott, 9 How. 210 ; Canby v. Lawson, 5 Jones, Eq. 32 ; 
 530
 
 CHAP, xir.] HEIRS and purchase. [§ 3C9. 
 
 of a wife and children.* So in respect to chattel interests, it 
 has been held that a bond under seal, though voluntary, will 
 uphold a decree for the execution of the trust in favor of 
 those whom the obligor is under obligations to support, as 
 wife or children; for a seal in law imports a consideration.'-^ 
 But this doctrine seems to be rejected ; and it is now held 
 that neither wife nor child can enforce a purely voluntary 
 contract or settlement.^ (a) 
 
 § 368. And where a third person — parent, agent, or 
 friend of the parties — holds out any considerations of a 
 pecuniary nature to induce a marriage, and articles are drawn 
 up, and a marriage takes place, equity will compel the party 
 holding out the inducements to make them good, or specifi- 
 cally perform the articles.^ 
 
 § 369. If, however, in an executory trust created in a will 
 there are indications of an intention that the words "heirs 
 of the body" shall be words of purchase and not of inheri- 
 tance, they will receive that construction ; that is, the inten- 
 
 Dennison v. Goehring, 7 Barr, 175 ; King v. Whitely, 10 Paige, 465. See 
 this matter very learnedly discussed in Neves v. Scott, 9 Monthly Law Re- 
 porter, 67, Boston, June, 184G. This decision, however, was overruled in 
 Neves v. Scott, 9 How. 98. The case was again discussed before the State 
 court of Georgia, and the opinion of the circuit court of the district of 
 Georgia was followed. That case was in turn overruled in 13 How. 268. 
 The judgment of the Supreme Court of the United States was, that on 
 the face of that instrument the consideration extended to brothers and 
 sisters ; and, further, that it was an executed trust, and that they had an 
 interest. 
 
 1 I'ulvertoft r. Pulvertoft, 18 Ves. 99. 
 
 ^ Bunn V. Winthrop, 1 Johns. Ch. 336 ; Minturn v. Seymour, 4 Johns. 
 Ch. 500 ; Lechmere v. Carlisle, 3 P. Wms. 222 ; Walwyn v. Coutts, 3 Mer. 
 708; Antrobus v. Smith, 12 Ves. 44; Colman i'. Sarrel, 1 Ves. Jr. 54; 
 Beard v. Nutthall, 1 Vern. 427. 
 
 8 Jefferys v. Jefferys, 1 Cr. & Phil. 138 ; Ilolloway v. Headington, 8 
 Sim. 325. 
 
 * Hammersley v. De Biel, 2 CI. & Fin. 45. 
 
 (a) See Thompson v. Tucker-Osborn, 111 Mich. 470 ; supra, §§ 
 122, note (a), 162, note (a). 
 
 531
 
 § 369.] EXECUTORY TRUSTS. [CHAP. XII. 
 
 tion of tho testator will be carried out, if it is sufficiently 
 clear, although the same words in an ordinary grant would 
 create an estate tail. Thus, if there are other words in the 
 will that indicate that the words "heirs of the body" are 
 words of designation, and not of inheritance, such heirs will 
 take by purchase, and the first taker of course will have only 
 an estate for life. Thus, if the testator direct a settlement 
 on A. for life "without impeachment of waste, "^ or with a 
 limitation "to preserve contingent remainders,"^ or if he 
 direct that " care be taken in the settlement that the tenant 
 for life shall not bar the entail, " ^ the superadded words show 
 the intention to be, that the first taker shall have only an 
 estate for life, with no power over the inheritance. So, 
 where a gift was in trust for the separate use of a married 
 woman for life, she alone to receive the rent, and her hus- 
 band not to intermeddle, and, after her decease, to the heirs 
 of her body, the wife took only for life, and the words "heirs 
 of her body " were words of purchase ; for if the wife takes 
 the inheritance in tail, the husband will have curtesy, which 
 would be contrary to the clause against his intermeddling.* 
 So, where a testator directed an estate to be settled on a 
 married woman for life for her separate use, and at her death 
 on her issue, she was not tenant in tail ; for there would be 
 only an equitable estate in her, while a legal estate would 
 vest in her issue, and the two estates could not coalesce in 
 such manner as to make her tenant in tail.^ So a direction 
 to settle land on A. and the heirs of his body " as counsel 
 shall advise, " ® or as " the executors shall think fit, " ' implies 
 
 1 Glenorchy v. Bosville, Ca. t. Talb. 3 ; 1 Lead. Cas. Eq. 1, and notes. 
 
 2 Pappillon V. Voice, 2 P. Wms. 471 ; Rochford v. Fitzmaurice, 1 Conn. 
 & Laws, 158. 
 
 8 Leonard v. Sussex, 2 Yern. 526. 
 
 4 Roberts r. Dixwell, 1 Atk. 607 ; West, Ca. t. Hardw. 536 ; Turner v. 
 Sargent, 17 Beav. 515 ; Stanley v. Jackman, 5 W. R. 302; Stonor v. Cur- 
 wen, 5 Sim. 264; Shelton v. Watson, 16 Sim. 542. 
 
 6 Stonor V. Curwen, 5 Sim. 268; Verulam v. Bathurst, 13 Sim. 386; 
 Coape V. Arnold, 2 Sm. & Gif. 311 ; 4 De G., M. & G. 574. And see Col- 
 lier V. McBean, 34 Beav. 426. 
 
 6 White V. Carter, 2 Eden, 366 ; Amb. 670. 
 
 T Read v. Snell, 2 Atk. 642. 
 532
 
 CHAP. XII.] HEIRS AND PURCHASE. [§ 371. 
 
 that a simple estate tail is not intended, for if it was there 
 would be no need of the additional words. And whore the 
 trust was to settle on A. for life without impeachment of 
 waste, remainder to his issue in »trict settlement, the court 
 directed the estates to he settled on A. for life, without im- 
 peachment for waste, remainder to his sons successively in 
 tail male, remainder to his daughters as tenants in common 
 in tail male, with cross-remainders in tail male, and with 
 limitations to trustees to preserve contingent remainders.^ 
 
 § 370. Where a testator devised his estate to trustees for 
 the term of six years, and to be then divided among his chil- 
 dren or their issue, and conveyances to be given therefor, and 
 directed that "in each deed or writing to any of my children 
 shall be inserted and expressed a clause limiting such grant 
 or interest conveyed to the grantee for life, with remainder 
 over to the right heirs of such grantee, their heirs and assigns 
 forever,'''' it was held that the deeds must be so drawn as to 
 give the children a life-estate only, and not a fee in their 
 shares.^ The same rule of construction has been established 
 and enforced in Georgia,^ and in Tennessee,^ and has been 
 recognized in South Carolina,^ Maryland, ^ and Pennsylvania. ^ 
 
 § 371. It will be observed that "heirs of the body " and 
 " issue " are not synonymous terms. " Heirs " are technical 
 
 1 Trevor v. Trevor, 13 Sim. 108 ; 1 II. L. Cas. 239 ; Coape r. Aruold, 
 2 Sm. & Gif. 311 ; 4 De G., M. & G. 574. 
 
 2 Wood r. Burliam, 6 Paige, 515, affirmed on appeal, 27 Wend. 9. 
 The rule in Shelley's case was in force in New York at the time, and 
 would have applied to this case if it had not been an executory trust. 
 The rule in Shelley's case was soon after abrogated in that State, and the 
 decision has ceased to be important ; nor is the subject-matter now under 
 discussion of importance in any State where the rule in Shelley's case is 
 abolished by statute. 
 
 8 Edmondson v. Dyson, 2 Kelly, 307; Wiley r. Smith, 3 Kelly, 551, 
 559 ; Neves v. Scott, 9 How. 197 ; 13 How. 268. 
 •* Loring v. Hunter, 8 Yerg. 4. 
 
 6 Garner v. Garner, 1 Des. 437; Porter v. Doby, 2 Rich. Eq. 49. 
 « Horner v. Lyeth, 4 II. & J. 431. 
 f Eiudlay v. Kiddle, 3 Biuney, 139. 
 
 533
 
 § 371.] EXECUTOllY TKUSTS. [CHAP. XII. 
 
 words of limitation, while the word " issue " is prima facie a 
 word of purchase ; and courts have ordered a strict settlement 
 when the word " issue " was used, when it would probably have 
 been otherwise if the word "heir " had been used.^ (a) The 
 words "heirs of the body, "^ and " issue, "^ embrace daughters; 
 for they equally answer the description, and are equally the 
 objects of bounty; and where the words are words of pur- 
 chase, the settlement, in default of sons, will be made upon 
 daughters, as tenants in common in tail, with cross-remain- 
 ders.^ In the United States, the settlement would be made 
 
 1 Moure v. Meure, 2 Atk. 265 ; Haddelsey v. Adams, 22 Beav. 276 ; 
 Rochford v. Fitzmaurice, 2 Conn. & Laws. 158 ; Bastard v. Proby, 2 
 Cox, 6 ; Dodson v. Hay, 3 Bro. Ch. 405 ; Stonor v. Curwen, 5 Sim. 264 ; 
 Home V. Barton, G. Coop. 257 ; Crozier v. Crozier, 2 Conn. & Laws. 311; 
 Ashton V. Ashton, cited in Bagshaw v. Spencer, 1 ColL Jur. 402 ; McPher- 
 son V. Snowden, 19 Md. 197. Where a testator intends the estate to go 
 to the whole body of persons, in legal succession, constituting in law the 
 entire line of descent lineal, he evidently means the same thing as if he 
 had said " issue," or " heirs of the body ; " or if he intends it to go to the 
 whole line of descent, lineal and collateral, he means the same thing as if 
 he had used the term "heirs," which, as a word of art, describes precisely 
 the same line of descent. Per Agnew, J. , in Yarnall's App. , 70 Penn. 
 St. 340, And see Kleppner v. Laverty, 70 Penn. St. 70 ; Kiah v. Grenier, 
 1 N. Y. Sup. Ct. 388. 
 
 2 Bastard v. Proby, 2 Cox, 6. 
 
 8 Meure v. INIeure, 2 Atk. 265 ; Trevor v. Trevor, 13 Sim. 108 ; Ashton 
 V. Ashton, ut supra. 
 
 * Marryat v. Townley, 1 Ves. 105; Meure v. Meure, 2 Atk. 265 ; Tre- 
 vor V. Trevor, 13 Sim. 108; 1 H. L. Ca. 239; Bastard v. Proby, 2 Cox, 6; 
 Ashton V. Ashton, in Spencer v. Bagshaw, ut supra ; Shelton v. Watson, 
 16 Sim. 543. 
 
 (a) The word " issue " in a deed an adopted child. Buckley v. Fra- 
 
 or will, when used as a word of sier, 153 Mass. 525. A gift to 
 
 purchase, means, in the absence of " children " does not include grand- 
 
 an intention disclosed to the con- children. Pride v. Fooks, 3 De G. 
 
 trary, descendants generally. Drake & J. 252 ; Osgood v. Lovering, 33 
 
 r. Drake, 134 N. Y. 220, 224 ; Soper Maine, 464. See Williams v. Knight, 
 
 r. Brown, 136 N. Y. 244, 248; 18 R. L 333 ; Bailey v. Hawkins, 
 
 Chwatal v. Schreiner, 148 N. Y. id. 573 ; Edgerly v. Barker, 66 N. 
 
 683 ; Hall v. Hall, 140 Mass. 267 ; H. 434. " Children " in a will may 
 
 Jackson v. Jackson, 153 Mass. 374. mean step-children. In re Jeans, 
 
 In a statute "issue" may include 72 L. T. 835. 
 534
 
 CHAP. XII.] HEIRS AND PURCHASE. . [§ 373. 
 
 upon sons and daugliters in common, with cross-remainders 
 in default of issue, unless the direction was to settle upon 
 some particular one of the heirs of the body or issue. 
 
 § 372. If the limitations of an executory trust are imper- 
 fectly or defectively declared in a will, the court will rectify 
 the limitations, and order the settlements to be made in 
 accordance with the intention of the testator, and to be drawn 
 up in proj)er form to elfectuate that intention.^ But if a tes- 
 tator undertake to be his own conveyancer, and himself draw 
 up in his will all the particulars of the limitations upon which 
 he desires his property to be settled, intending them to be final 
 and to be carried into effect in the trusts, the court is bound 
 by the words, as in Austen v. Taylor, where Lord Northing- 
 ton said that " the testator had referred no settlement to the 
 trustees to complete, but had declared his own uses and 
 trusts," and that there was no authority in the court to vary 
 them. 2 
 
 § 373. When a testator has devised lands in strict settle- 
 ment, and then devises personal chattels as heirlooms, to be 
 held by, or in trust for, the parties entitled to the use of the 
 real estate under the limitations of the settlement ; or when 
 he expresses a desire that the heirlooms should be held upon 
 the same trusts as the real estate, — " so far as the rules of 
 law and equity will permit," the tenant for life will have the 
 use of the heirlooms, and they will vest absolutely in the first 
 tenant in tail, upon his birth, though he die immediately 
 after. ^ In such cases, the court regards the trust, either as 
 
 1 Franks v. Price, 3 Beav. 182; Doncaster v. Doncaster, 3 K. & J. 26; 
 Ptochfort V. Fitzmaurice, 1 Conn. & Laws. 173; 2 Dr. & War. 21. 
 
 2 Austen v. Taylor, 1 Eden, 368. This case, however, has been criti- 
 cised. See Green v. Stephens, 19 Ves. 76 ; Jervoise v. Northumberland, 
 
 1 J. & W. 572. And see East v. Twyford. 9 Hare. 713 ; Meure v. Meure, 
 
 2 Atk. 205 ; Harrison v. Naylor. 2 Cox, 247. 
 
 « Foley V. Burnell, 1 Bro. Ch. 274 ; Vaughan v. Bunslem, 3 Bro. Ch. 
 101 ; Newcastle v. Lincoln, 3 Ves. 387; Carr c Erroll, 14 Ves. 478; Traf- 
 ford V. Trafford, 3 Atk. 347 ; Doncaster v. Doncaster. 3 K. & J. 26 ; Row- 
 land V. Morgan, 6 Hare, 463; 2 Phill. G74; Gower v. Grosvenor, Barn. 
 
 boo
 
 § 374.] EXECUTORY TRUSTS. [CHAP. XII. 
 
 executed, or, if the trust is executory, that it has no authority 
 to insert a limitation over in case of the tenant in tail dying 
 under twenty-one. But such a limitation over is not illegal ; 
 and if the bequest of the heirlooms is clearly executory, 
 and if the intention of the testator is plainly manifested that 
 no person shall take the chattels absolutely who does not live 
 to become possessed of the real estate, the court will execute 
 the intention by directing the insertion of a limitation that 
 the absolute interest of the first tenant in tail, if he should 
 die under twenty-one, should go over to the next person in 
 remainder.^ And so where the absolute vesting of the chat- 
 tels is coupled with the actual possession, and is therefore 
 suspended until the death of the tenant for life, the chattels 
 will vest in the child, who, after the death of the tenant for 
 life, shall fulfil all the requisites of being tenant in tail in 
 possession. 2 (a) 
 
 § 374. If the words of a will, taken in their ordinary sense, 
 create a joint-tenancy^ the court cannot order a settlement 
 giving a tenancy in common, as it may do under marriage 
 articles. But in some cases, where a testator is providing 
 for his children, or where a grandparent in loco 'parentis is 
 providing for his grandchildren, the court will order a settle- 
 ment that will create a tenancy in common. ^ And, generally, 
 
 Ch. 54 ; 5 Madd. 337, overruled ; Evans v. Evans, 17 Sim. 108 ; Tolle- 
 mache v. Coventry, 2 CI. & Fin. 611; 8 Blic^h (n. s.), 547; Stapleton v. 
 Stapleton, 2 Sim. (n. s.) 212 ; Deerhurst v. St. Albans, 5 Madd. 232, over- 
 ruled ; Scarsdale v. Curzon, 1 John. & H. 40, where all the cases are cited 
 and commented on. 
 
 1 Potts V. Potts, 3 Jo. & Lat 353; 1 H. L. Cas. 671; Trafford v. Traf- 
 ford, 3 Atk. 347 ; Lincoln v. Newcastle, 3 Ves. 3^7. 
 
 2 Scarsdale v. Curzon, 1 John. & II. 40. 
 
 8 Synge v. Hales, 2 B. & B. 499 ; Marryatw. Townley, 1 Ves. 102. But 
 there were other circumstances in these cases that indicated a tenancy in 
 common. McPherson v. Snowden, 19 Md. 197. 
 
 (a) In a devise of plate and a trust or cut down the devisee's in- 
 leasehold house, the wosds "to be terest to a life estate. /n re John- 
 enjoyed with and to go with the ston, 26 Ch. D.538. 
 title," do not create an executory 
 536
 
 CHAP. XII.] WHAT POWERS WILL BE INSERTED. [§ 375. 
 
 executory trusts under wills will be construed in the same 
 manner as marriage articles entered into after marriage.' 
 
 § 375. When a settlement is directed in an executory 
 trust, but there is no direction as to the powers to be given 
 under it, the court cannot order the insertion of any powers,^ 
 except perhaps the power of leasing, which generally is an 
 implied power to enable a party to enjoy the estate.^ But if 
 the executory articles or the will contain a direction to in- 
 sert the ^^ usual poivers,^^ powers to lease for twenty-one years,* 
 of sale and exchange,^ of varying the securities,^ of appoint- 
 ing new trustees," and (according to the nature of the prop- 
 erty) of partition, of leasing mines, and of granting building 
 leases, will be inserted.^ But there is a distinction between 
 powers for the management and enjoyment of the estate, and 
 powers which are personally beneficial to one or more partic- 
 ular persons, such as powers of jointure, to charge portions, 
 or to raise money for a particular purpose.^ The court can- 
 not therefore order these latter powers to be inserted under 
 the direction to insert the itsual powers, for there is no rule 
 by which the court could be governed in reducing the corpus 
 of the estate. ^^ So if certain particular powers are directed 
 to be inserted, the usual powers will be qualified by the direc- 
 tion. Thus, where it was directed that the settlement should 
 contain a power of leasing for twenty-one years, a power of 
 
 ^ Rochford v. Fitzmaurice, 1 Conn. & Laws. 158. 
 
 2 Wheete v. Hall, 17 Ves. 80 ; Brewster v. Angell, IJ. & W. 628. 
 
 * Woolmore v. Burrows, 1 Sim. 518 ; Fearne's P. W. 310 ; but see 
 the late cases, Turner v. Sargent, 17 Beav. 515 ; Scott ». Steward, 27 Beav. 
 367 ; Charlton v. Kendall, 1 Hare, 296. 
 
 * Hill V. Hill, 6 Sim. 144 ; Bedford v. Abercorn, 1 M. & Cr. 312. 
 
 6 Hill V. Hill, 6 Sim. 144; Bedford w. Abercorn, 1 M. & Cr. 312 ; Teake 
 V. Penlington, 2 V. & B. 311. 
 
 6 Sampayo v. Gould, 12 Sim. 426. 
 
 ' Lindow v. Fleetwood, 6 Sim. 152; Sampayo v. Gould, 12 Sim. 426; 
 Brewster v. Angell, IJ. & W. 028. 
 
 8 Hill r. Hill, 6 Sim. 145; Bedford v. Abercorn, 1 M. & Cr. 312. 
 
 9 Hill V. Hill, 6 Sim. 144. 
 
 i» Higginsou c. Barneby, 2 S. & S. 51G. 
 
 5 Of* 
 01
 
 § 375.] EXECUTORY TRUSTS. [CHAP. XII. 
 
 sale and exchange, and of appointment of new trustees, it 
 was held that a power of granting building leases could not 
 be inserted.^ So the powers must be inserted and executed 
 as they are directed ; as where a power was directed to be 
 inserted of selling and exchanging estates in one county, and 
 all other usual powers^ it was held that the powers could not 
 be extended to estates in other counties. ^ And where a tes- 
 tator directed the insertion of a power of making leases, 
 and otherwise according to circumstances, and of appointing 
 new trustees, the court refused to insert a power of sale and 
 exchange, saying that, if where nothing is expressed nothing 
 can be implied, it is impossible, where something is ex- 
 pressed, to imply more than is expressed, especially where 
 the will notices what powers are to be given. ^ But under 
 particular directions as to certain powers, and general direc- 
 tions that other usual powers should be inserted, the two 
 directions being separate and independent of each other, it 
 was held that a power to appoint new trustees might be in- 
 serted.* Where proper powers of making leases or other- 
 wise were directed to be reserved in the settlement to the 
 tenants for life while qualified to exercise them, and when 
 disqualified to the trustees, and a power of sale and exchange 
 was inserted in the settlement. Lord Eldon held that it was 
 improperly introduced;^ and Sir T. Plummer gave a similar 
 decision, on the ground that the tenant for life ought not to 
 have a power of sale unless it was expressly directed, nor 
 ought the trustees to have such a power in the absence of an 
 express direction.^ But where there was a settlement of 
 stock with a power of varying the securities, and also a cove- 
 nant to settle real estate upon the same trusts and with like 
 powers, it was held that a power to sell and exchange was 
 
 ^ Pearse v. Baron, Jac. 158. 
 2 Hill V. Hill, 6 Sim. 141. 
 
 8 Brewster v. Angell, 1 J. & "W. 625; Home v. Barton, Jac. 439. 
 4 Lindow v. Fleetwood, 6 Sim. 152. 
 6 Brewster v. Angell, IJ. & W. 625. 
 6 Home V. Barton, Jac. 437. 
 538
 
 CUAP. XII.] WHAT TOWERS WILL BE INSERTED. [§ 376. 
 
 properly introduced in analogy to the j)Ower of varying the 
 securities.^ 
 
 § 37G. In drawing up the final deed of settlement under 
 executory articles or a will, the intention of the settlor is to 
 be carried out if possible. If the intention conflicts with any 
 of the rules of law, it shall be executed so far, and as near 
 as it can be. The doctrine of cy pres applies to this class of 
 executory trusts. Thus, if a settlement is directed which 
 would create a perpetuity, the court will order a settlement 
 which shall carry the trust as far as it can extend without 
 running counter to the rules against perpetuities. As where 
 there was a devise to a corporation in trust to convey to A. 
 for life, and after his death to his first son for life, and so on 
 to the first son of such first son for life; and, in default of 
 male issue, then to B. for life, and to his son for life after 
 the death of B., and so as in the case of A., Lord Covrper 
 said the attempt to create a perpetuity was vain, yet the 
 directions should be complied with, so far as consistent with 
 the law, and he directed that all the sons already born 
 should take estates for life in succession, with limitations to 
 unborn sons in tail.^ But if the devise is such that it cannot 
 be carried into effect, in any form approximating the inten- 
 tion of the testator, without contravening the law against 
 perpetuities or remoteness, the whole trust will be void.^ 
 
 1 "William v. Caxter, Append, to Treatise on Powers, 945 (Sth ed.) ; 
 Elton V. Elton, 27 Beav. 634; Home i-. Barton, Jac. 437. 
 
 2 See § 383 ; Humberstou v. Humberston, 1 P. Wms. 332 ; 2 Veru. 
 737; Pr. Ch. 455; Parfitt v. Hember, L. R. 4 Eq. 443; Peard v. Keke- 
 wick, 15 Beav. 173; Lyddon r. Ellison, 19 Beav. 565; "Williams v. Teal, 
 6 Ilaro, 239, and cases ; "Vanderplank v. King, 3 Uare, 1 ; Mouypenuy v. 
 Uering, IG M. & W. 418. 
 
 « Blagrave v. Hancock, 16 Sim. 371. 
 
 539
 
 377.] PERPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 CHAPTER XIII. 
 
 PEEPETUITIES AND ACCUMULATIONS. 
 
 § 377. Definitions of a perpetuity. 
 
 § 378. Executory devises — springing and shifting uses. 
 
 § 379. Growth of the rule against perpetuities. 
 
 § 380. Application of the rule. Indefinite failure of issue. 
 
 § 381. Applies to the possible vesting of estates — not to the actual. 
 
 § 382. Applies equally to trust and legal estates. 
 
 § 383. An equitable interest that may not vest within the rule is void. § 23. 
 
 § 384. Distinction between private trusts and charitable trusts. 
 
 § 385. A proper trust to raise money to be applied contrary to the rule. 
 
 Making estates inalienable. 
 
 § 386. Equitable estates cannot be made inalienable in England. 
 
 §§ 386 a, 386 6. How they may be made inalienable in some of the United States. 
 
 § 387. Exception in the case of married women. 
 
 § 388. How trusts can be limited, so that cestui que trust cannot 
 
 alienate. See § 81.5 a. 
 
 § 389. Limitation of personal estate to such tenant in tail as first attains 
 
 twenty-one. 
 
 § 390. When courts will alter trusts and when not. 
 §§ 391, 392. Statutes of various States in relation to perpetuities. 
 Accumulations. 
 
 § 393. Rule respecting trusts for accumulations. 
 
 § 394. In England the rule was altered by the Thellusson Act. 
 
 § 395. Construction of the Thellusson Act. 
 
 § 396. Rule against accumulations — when it applies and when not, 
 
 § 397. Application of the income in cases of illegal directions to accumu- 
 
 late. 
 
 § 398. Statutes in various States as to accumulations. 
 
 § 399. Accumulations for charitable purposes. 
 
 § 400. Accumulations in cases of life insurance. 
 
 § 377. That the same rules apply to trusts as to legal 
 estates is further apparent from the rule against perpetuities. 
 A perpetuity has been declared to be " an estate unalienable, 
 though all mankind should join in the conveyance ; " ^ and 
 an executory devise is said to be " a perpetuity as far as it 
 goes. " Again, it has been said, that " a perpetuity is when 
 
 1 Scattergood v. Edge, Salk. 229. 
 540
 
 CHAP. XIII.] DEFINITIONS OF A PERPETUITY. [§ 377. 
 
 if all that have interest join, yet they cannot pass the estate. " ' 
 These are characteristics of a perpetuity. There arc other 
 descriptions given, as that "a perpetuity is a thing odious in 
 the law, and destructive totho commonwealth: it would stop 
 commerce and prevent the circulation of property." ^ Others 
 have described the rule of law as respects the period of re- 
 moteness, rather than the thing itself called a perpetuity ; ^ 
 thus, " a perpetuity is a limitation tending to take the subject 
 out of commerce for a longer period than a life or lives in 
 being and twenty-one years beyond, and, in the case of a 
 posthumous child, a few months more, allowing for the term 
 of gestation. " ^ Mr. Saunders says : " A perpetuity may be 
 defined to be a future limitation, restraining the owner of 
 the estate from alienating the fee-simple of the property, 
 discharged of such future use or estate, before the event is 
 determined, or the period is arrived, when such future use 
 or estate is to arise. If that period is within the bound pre- 
 scribed by law, it is not a perpetuity."^ This describes the 
 thing itself, and not the rule of law, or the length of time, 
 which may vary. Mr. Lewis gives a fuller definition : " A 
 perpetuity is a future limitation, whether executory, or by 
 way of remainder, and of either real or personal property, 
 which is not to vest, until after the expiration of, or will not 
 necessarily vest within, the period fixed and prescribed by 
 law for the creation of future estates and interests; and 
 which is not destructible by the persons for the time being 
 entitled to the property, subject to the future limitation, 
 except with the concurrence of the individual interested 
 imder that limitation." ^ If such person is not yet in being, 
 
 1 Washborae v. Downes, 1 Ch. Cas. 213. 
 
 2 Duke of Norfolk's Case, 1 Vern. 164. 
 8 Stanley v. Leigh, 2 P. Wms. 688. 
 
 4 Rand. Perp. 48. 
 
 6 Uses and Trusts, 204. 
 
 ^ Lewis on Perpetuity, 164. Jarman's Treatise on Wills contains this 
 marked sentence : " Te teneam moriens is the dying lord's apostrophe to 
 his manor, for which he is forging these fetters that seem, by restricting 
 the dominion of others, to extend his own." 1 Jar. on Wills, 226, note 
 (ed. 1861). 
 
 541
 
 § 378.] PERPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 as he may not be after an extended period, of course the 
 estate cannot be conveyed, even if all the world join in the 
 deed. 
 
 § 378. Executory devises are a species of testamentary 
 dispositions, allowed by courts of law, and when properly 
 exercised, they pass the legal estate or interest to all persons 
 in favor of whom the dispositions are made. They are de- 
 vises to take effect at a certain time in the future, or upon a 
 certain event, and in favor of certain persons. Limitations 
 by way of springing or shifting uses are similar in effect, 
 except that they are created by deeds iiiter vivos, and are 
 based upon the statute of uses. Whenever the event happens 
 when a shifting or springing use is to take effect, the statute 
 of uses vests the legal seizin and ownership in the person 
 entitled by virtue of the use. These executory devises, and 
 shifting and springing uses, must vest in the persons intended 
 to be benefited within the time allowed by law, or they will 
 be declared illegal and of no effect. The same rules apply 
 in equity to trusts. In cases of trusts the legal estate is 
 vested in certain trustees, and their heirs ; but the beneficial 
 interest, or equitable estate, is given by the grantor, testator, 
 or settlor to such person or persons, and upon such terms and 
 upon such events, as he shall declare. The settlor can change 
 and shift the beneficial enjoyment of the equitable estate from 
 one person to another, in the future, in a manner analogous 
 to the limitations of springing or shifting uses under the 
 statute of uses.^ (a) Courts of equity always take special care 
 
 1 Harrison v. Harrison, 36 N. Y. 543. 
 
 (a) See /n re Morgan, 24 Ch. D. tory devise. Glover v. Condell, 163 
 
 114; Welch v. Brimmer, 169 Mass. 111. 566, 592; overruling Ewing v. 
 
 204; Barney V. Arnold, 15 R. 1.78; Barnes, 156 111. 61. Shifting and 
 
 Brown v. Addison G. Hospital, 155 springing uses and executory devises 
 
 Mass. 323; Smith v. Kimbell, 153 are all subject to the rule against 
 
 111. 368 ; Powers v. BuUwinkle, 33 perpetuities, even when alienable. 
 
 S. C. 293. A fee cannot be limited Gray on Perpetuities, §§ 268, 317. 
 
 upon a fee by deed, but it can be In the case of a condition, the estate 
 
 so limited by will by way of execu- is to revert to the grantor or his 
 542
 
 CHAP. XIII.] DEVELOPMENT OF THE RULE. [§ 379. 
 
 tliat future estates or interests shall not be destroyed by the 
 present user of the property; and that the limitations of 
 future equitable interests shall not transcend the limits as- 
 signed for the limitation of similar legal interests or execu- 
 tory devises, and shifting and springing uses at law. 
 
 § 379. The rule against perpetuities has been gradually 
 established by judicial decisions, and affords a most notable 
 instance of the nice adaptation of the principles of the com- 
 mon law to the decision of a question which requires at once 
 a due regard for the rights of persons and property, and a 
 careful consideration of these larger principles of puldic 
 policy so essential to the welfare of communities and States. 
 For public policy is opposed to the perpetual settlement of 
 property in families in such manner that it is forever inalien- 
 able, or inalienable so long as there may be a person to take, 
 answering the designation of some testator who died genera- 
 tions before. The first stand of the judges was to allow only 
 those limitations which would take effect at the end of one 
 life from the death of the testator.^ This was afterwards 
 modified to include two or more lives in being, and running 
 at the same time, "or where the candles are all burning at 
 once ; " for it is plain that such a space of time is only one 
 
 1 Pells V. Brown, Cro. Jac. 590 ; 1 Eq. Cas. Ab. 187, c. 4 (a. d. 1621) ; 
 see Snow v. Cutler, 1 Lev. 135, t. Raym. 102; 1 Keb. 151, 752, 800; 2 
 Keb. 11, 145, 296; 1 Sid. 153. 
 
 heirs, but in a conditional limitation to A. for life, and upon his decease 
 or an executory devise, it is limited to the use of such child or children 
 over to other persons. Even in the of A. then living, and such issue 
 case of a condition, the power of then living of a deceased child of A. 
 alienation may be restricted, though as either before or after his death 
 it cannot l)e entirely taken away, shall become of age, or die under 
 In re Dugdale, 38 Ch. D. 170, 179; age and leave issue, is an executory 
 Potter V. Couch, 141 U. S. 296, 315 ; devise and not a contingent re- 
 Sellers V. Reed, 88 Va. 377. An mainder. Dean v. Dean, [1891] 3 
 executory devise is valid under the Ch. 1.50. See Symes v- Symes, 
 rule against perpetuities when the [1896] 1 Ch. 272. In construing a 
 limitation over is determined at will, a remainder will always be 
 the death of a grandchild. Naylor preferred to an executory devise. 
 V. Godman, 109 Mo. 543. A gift Watson v. Smith, 110 N. C. 6. 
 
 543
 
 § 379.] PERPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 life in being, — that of the longest liver.' The next step 
 was much debated; but it was finally settled, that an execu- 
 tory devise might be made to vest at the end of lives in being 
 and twenty-one years after, to allow for the infancy of the 
 next taker, who by reason of infancy could not alienate the 
 estate.'-^ The statute of 10 & 11 Wm. III., c. IG, having pro- 
 vided that children en ventre sa mere, born after their father's 
 death, should for the purposes of the limitations of estates be 
 deemed to have been born in his lifetime, a further extension 
 of nine or ten months was allowed for the period of gesta- 
 tion.^ The next step was to allow a period of nine months 
 for gestation at the beginning of the term, as the life in being 
 during which the term would run might be that of a child e?i 
 ventre sa mere.^ Much discussion arose upon each one of 
 these steps. ^ For instance, the term of twenty-one years, it 
 was said, could not be allowed as a term in gross, and with- 
 out reference to the infancy of some person interested in the 
 estate ; this question was not settled until Cadell v. Palmer, 
 in the House of Lords in 1833, when it was finally deter- 
 
 1 Goring v. Bickerstaff, PoUexf. 31; 1 Ch. Cas. 4; 2 Freem. 163 
 (1664) ; 2 Harg. Juiid. Arg. 46 ; Lloyd v. Carew, Shower, P. C. 137 ; Pr. 
 Ch. 72. 
 
 2 Taylor v. Biddal, 2 Madd. 289 ; Freem. 243 ; 1 Eq. Cas. Ab. 188, c. 11 ; 
 F. C. R. 432; Laddington v. Kime, 1 Raym. 203 ; Gore v. Gore, 2 W. Kel. 
 204 ; 2 P. Wms. 28 ; 2 Stra. 948 ; Scattergood v. Edge, 12 Mod. 277 ; 
 Duke of Norfolk's Case, 3 Ch. Cas. 32 ; Ch. R. 229 ; 2 Freem. 72 ; Pollexf. 
 223 ; Massenburgh v. Ash, 1 Vera. 234 ; Maddox v. Staine, t. Talb. 228 ; 
 2 Harg. Jurid. Arg. 50. 
 
 3 Stephens v. Stephens, Cas. t. Talb. 228 ; Forrest, 228 ; Goodtitle v. 
 Woods, Willes, 211 ; 7 T. R. 103 (n.) ; Sheffield v. Orrery, 3 Atk. 282; 
 Gulliver v. Wicket, 1 Wils. 185; Bullock v. Stones, 2 Ves. 521 ; Goodman 
 V. Goodright, 2 Burr. 873. 
 
 4 Long V. Blackall, 7 T. R. 100 ; 2 Harg. Jurid. Arg. 105 ; 6 Cru. Dig. 
 488. 
 
 6 Davies v. Speed, 12 Mod. 39 ; 2 Salk. 675; Holt, 731 ; Bostock's Case, 
 Ley, 56; Roe w. Tranmer, 2 Wils. 75; Lloyd v. Carew, Show. P. C. 137; 
 Pr. Ch. 72; 2 Harg. Jurid. Arg. 36; Carwardine u. Carwardine, 1 Ed. 34; 
 Blandford v. Thackerell, 2 Ves. Jr. 241; 1 Sand. Uses &Tr. 198; Thellus- 
 son V. Woodford, 4 Ves. 337 ; Routledge v. Dorrill, 2 Ves. Jr. 357 ; Keily 
 V. Fowler, Wilmot, 306 ; Beard u. Westcott, 5 Taunt. 393; 5 B. & A. 801; 
 T. & R. 25; Bengough v. Edridge, 1 Sim. 173, 271. 
 544
 
 CHAP. XIII.] STATEMENT OF THE RULE. [§ 380. 
 
 mined, that twenty-one years might be allowed as a term 
 in gross, without reference to the infancy of any person, but 
 that the period of nine months for gestation should ho allowed 
 in cases only where the gestation had commenced ^ of some 
 persons who, if born, would take an interest in the estate. 
 By such steps, by inipercei)tiljle degrees, and after two cen- 
 turies of doubt and litigation, and unaided by legislation, 
 the judges framed and completed the jreat rule against 
 per2)etuities.^ 
 
 § 380. Thus all future legal estates which arise by way of 
 executory devise, conditional limitation, or shifting and 
 springing uses, must vest within a life or lives in being at 
 the death of the testator, and twenty-one years ; and, in case 
 the person in whom the estate or interest should then vest is 
 en ventre sa mere, nine months more will be allowed ; and all 
 estates created as aforesaid, and so limited that they may not 
 vest within that time, arc void.^ If the estates are created 
 and limited by deeds inter vivos, the lives in being must be 
 those persons who are living at the execution of the deed, 
 and not at the death of the grantor or settlor.* And if an 
 
 1 Cadell V. Palmer, 7 Bligh (x. s.), 202 ; 10 Biug. 140; 1 CI. & Fin. 
 372 ; 1 Jarm. Wills, 222. 
 
 2 Lewis on Perpetuity, pp. 140-1G2; 1 Powell on Devisees by Jar. 
 389, n. 
 
 8 Proprietors of Church in Brattle Square r. Grant, 3 Gray, 149 : Sears 
 V. Russell, 8 Gray, 8G; 1 Shep. Touch. 120; 4 Kent, Com. 128 and notes; 
 
 2 Fearne, Cont. Rem. 50; Nightingale v. Burrell, 15 Pick. Ill; G Cru. 
 Dig. tit. 38, c. 17, § 23; Cadell v. Palmer, 1 CI. & Fin. 372, 423; Bacon 
 V. Proctor, T. & R. 31; JIackworth r. llinxman, 2 Keen, 658; Kcr v. 
 Duncannon, 1 Dr. & War. 509; Com., &c. v. De Clifford, id. 245; AVelsh 
 V. Foster, 12 Mass. 97; Tilbury v. Barbut, 3 Atk. G17; Conklin v. Conklin, 
 
 3 Sandf. Ch. 64; Tyte v. Willis, Ca. t. Talb. 1; Att. Gen. r. Gill, 2 P. 
 Wms. 369; Nottingham v. Jennings, 1 id. 25; Kampf v. Jones, 2 Keen, 
 756; Miller v. Macomb, 26 Wend. 229; Tator r. Tutor, 4 Barb. 4:51 ; King 
 V. Hardwicke, 2 Beav. 352; Ferris v. Gibson, 4 Edw. 707; Egerton v. 
 Brownlow, 4 II. L. Cas. 1, 160. 
 
 * Lewis on Perpetuity, 171, 172. Mr. Lewis observes an inconsistency 
 
 in taking lives in being at the death of the testator, if the future interest 
 
 is created by will, and lives in being at the date or execution of the deed, 
 
 if such interests are created by deed. But it should be remembered that 
 
 VOL I. — ."35 545
 
 § 380.] PERPETUITIES AND ACCUMULATIONS. [CIIAP. XIII. 
 
 absolute term is taken, and no anterior term for a life in 
 being is referred to, such absolute term cannot be longer than 
 twenty-one years ;^ but a term of any number of years may 
 he taken, provided the term is so connected with some life or 
 lives in being that the interest must vest in some person liv- 
 ing at the death of the testator and at the time of the vest- 
 ing. ^ So estates limited to take effect after an indefinite 
 failure of issue of a living or deceased person are void, for 
 the reason that the issue of such persons may not fail until 
 after the term of a life or lives in being and twenty-one 
 years has expired. ^ (a) But a limitation over in case the 
 
 a ■svill speaks as at the death of the testator, while a deed speaks as at the 
 time of its execution, so that there is no inconsistency in principle. See 
 Tregonwell v. Sydenham, 3 Dow, 194; 2 Jar. on "Wills, 257 ; Ed. 1861. 
 
 1 Crooks V. De Vandes, 9 Ves. 197; Palmer v. Holford, 4 Russ. 403; 
 Speakman v. Speakmau, 8 Hare, 180. 
 
 2 Lachlan v. Reynolds, 9 Hare, 796. 
 
 3 Randolph v. Wendel, 4 Sneed, 646 ; Van Vechten v. Pearson, 5 Paige, 
 512; Van Vechten v. Van Vechten, 8 id. 104 ; Hone v. Van Schaick, 20 
 Wend. 564 ; Watkins v. Quarles, 23 Ark. 179 ; Campbell v. Harding, 2 
 Rus. & My. 390; Condy v. Campbell, 2 CI. & Fin. 421, 427; Harrison v. 
 Harrison, 36 N. Y. 543; Allen v. Henderson, 49 Penn. St. 233; Fisher 
 V. Webster, L. R. 14 Eq. 287; Newill v. Newill, L. R. 7 Ch. 253; Roe 
 V. Jeffery, 1 T. R. 589 ; Hawley v. James, 5 Paige, 318; 16 Wend. 61 ; 
 Miller v. JMacomb, 2 id. 229 ; 9 Paige, 265 ; Lorillard v. Coster, 5 id. 172 ; 
 Boehm v. Clark, 9 Ves. 580 ; Black v. McAulay, 5 Jones, L. 375 ; Jackson 
 V. Billinger, 18 Johns. 368; Fisk v. Keen, 35 Maine, 349; Bramlet i^. 
 Bates, 1 Sneed, 554; Jordan v. Roach, 32 Miss. 481 ; Grayw. Bridgforth, 
 33 Miss. 312 ; Tongue v. Kutwell, 13 Md. 415 ; Jones v. Miller, 13 Ind. 
 337; Chism v. Williams, 29 Mo. 288; Dodd v. Wake, 8 Sim. 615; Traf- 
 ford V. Boehm, 3 Atk. 440; Ellicombe v. Gompertz, 3 Myl. & Cr. 127; 
 Murray v. Addenbrook, 4 Russ. 407; Hayes v. Hayes, id. 311; Bell v. 
 Phyn, 7 Ves. 453; Thackeray v. Sampson, 2 S. & S. 214; Cross v. Cross, 
 7 Sim. 201; Bradshaw v. Skilbeck, 2 Bing. N. C. 182; Budd v. State, 22 
 Md. 48; Johnson v. Currin, 10 Penn. St. 498; Bedford's App., 40 id. 18; 
 Deihl V. King, 6 Serg. & R. 29; Eichelberger v. Barnitz, 17 Serg. & R. 293; 
 Rice V. Satterwhite, 1 Dev. & B. Eq. 69; Postell v. Postell, Bail. Ch. 390; 
 Conklin v. Conklin, 3 Sandf. Ch. 64; Brashear v. Marcy, 3 J. J. Marsh. 
 89; Allen v. Parkam, 5 Munf. 457; Mazyck v. Vanderhost, Bail. Ch. 48; 
 Adams v. Chaplin, 1 Hill, Eq. 265; Lanesborough v. Fox, Ca. t. Talb. 
 
 (a) Hutchinson v. Tottenham, [1898] 1 Ir. 403; hi re Gage, [1898] 
 1 Ch. 498. 
 546
 
 CHAP. XII r.] RULE AS TO EQUITABLE ESTATES. [§ 381. 
 
 heirs of A. 's body living at her death die before reaching the 
 age of twenty-one, is not void if A. leave no heirs of her 
 body, but it takes effect at her death. ^ 
 
 § 381, It will be observed, that, in determining whether a 
 particular devise is contrary to the rule against perpetuities, 
 the inquiry is not whether the contingency upon which the 
 estate is to vest actually occurs within the time limited by 
 the rule, but whether it is possible that the event may not 
 happen within the time. If it is possible that the event upon 
 which an executory devise or shifting or springing use is to 
 vest in some person may not happen within the time, the 
 executory estate is void, although in fact the event actually 
 happens within the time.^ And it must further be observed, 
 that, if the estate is to vest in some persons within the time 
 limited, it will not be obnoxious to the rule against perpetui- 
 ties, even if such person may not be entitled to the actual 
 enjoyment of the property ; that is, the rule as to perpetuities 
 deals with the vestirig of the title, and not with the actual 
 reception of the profits of an estate.^ A gift may be to unborn 
 children for life and then to an ascertained person, if the 
 vesting/ of the estate in the latter is not postponed too long. 
 The person who is to take must become certain within the 
 period, the right of possession may be postponed longer. 
 Moreover, if a certain estate is to vest within the time on 
 a contingency which actually occurs, the devise is not affected 
 by the fact that the estate was limited to take effect at an- 
 
 2G2; Bennett v. Lowe, 5 Moor. & P. 485; Smith v. Dunwoody, 19 Ga. 
 237; McRee v. Means, 34 Ala. 378; Powell v. Brandon, 24 Miss. 343; 
 Armstrong v. Armstrong, 14 B. Mon. 333. As to the legislation in the 
 various States upon the failure of issue, see 2 Washburn, Real Prop. 683 
 (3d ed.). 
 
 1 Egbert v. Schultz, 29 Ind. 242. 
 
 2 Post, § 393 ; Langdon v. Simson, 12 Ves. 295 ; O'Xeill v. Lucas, 2 
 Keen, 313 ; IMoore v. Moore, 6 Jones, Eq. 132; Welch v. Foster, 12 Mass. 
 97; Craig r. Hone, 2 Edw. Ch, 554; Robinson v. Bishop, 23 Ark. 378; 
 Sears v. Putnam, 102 Mass. 5. 
 
 * Loring c. Blake, 98 Mass. 253; Murray v. Addenbrook, 4 Russ. 407; 
 Phipps V. Kelynge, 2 V. & B. 57, n. (c) ; Curtis v. Lukin, 5 Beav. 147; 
 Otis V. McLellan, 13 Allen, 339 ; Yard's App., 64 Penn. St. 95. 
 
 547
 
 § 382.] 
 
 PERPETUITIES AND ACCUMULATIONS. [cHAP. XIII. 
 
 other time in the event of an alternate contingency which 
 may be too remote.^ If two constructions may be put upon 
 a will, one of which will offend against the rule against per- 
 petuities, and the other not, the construction which will not 
 offend against the rule will be adopted, if in other respects it 
 can be sustained. ^ And so a will speaks, upon the subject 
 of remoteness, from the time of the last codicil, and not from 
 the date of the original will.^ 
 
 § 382. The same rule applies with equal force in law and 
 equity, and trusts and beneficial or equitable estates are 
 subject to the same restrictions.* (a) A perpetuity will no 
 
 1 Seaver v. Fitzgerald, 141 Mass. 401. 
 
 2 Martelli v. HoUoway, L. R. 5 H. L. 532. 
 ^ Hosea v. Jacobs, 98 Mass. 65. 
 
 4 Duke of Norfolk's Case, 3 Ch. Cas. 20 ; 2 Ch. R. 229 ; 2 Freem. 72 ; 
 PoUexf . 293 ; Massenburgh v. Ash, 1 Vern. 254 ; Schutter v. Smith, 41 
 N. Y. 329 ; Knox v. Joues, 47 N. Y. 397; Burrill v. Boardman, 43 N. Y. 
 254. jEquitas sequitur legem, but courts of equity Lave rather led the law 
 courts in fashioning the rules against perpetuities. 
 
 (a) See Re Whitten, 62 L. T. 
 391 ; Patching v. Barnett, 51 L. J. 
 Ch. 74 ; In re Mervin, [1891] 3 Ch. 
 197; In re Benee, id. 242; In re 
 Dawson, 39 Ch. D. 155 ; In re 
 Frost, 43 Ch. D. 24G ; In re Low- 
 man, [1895] 2 Ch. 348 ; Hartson v. 
 Elden, 50 N. J. Eq. 522; Post v. 
 Rohrbach, 142 111. GOO; Hartw. Sey- 
 mour, 147111. 598; Bigelow v. Cady, 
 171 111. 229 ; In re Walkerly, 108 
 Cal. 627 ; Chilcott v. Hart, 23 Col. 
 40; Claflin v. Claflin, 149 Mass. 19; 
 TTinsor v. Mills, 157 Mass. 362; 
 Butterfield r. Reed, 160 Mass. 361 ; 
 Edgerly v. Barker, 66 N. H. 434 ; 9 
 Harv. L. Rev. 242 ; 6 id. 195, 406 ; 
 8 id. 211 ; Landers v. Dell, 61 Conn. 
 189; Tarrant v. Backus, 63 Conn. 
 277; Security Co. v. Snow, 70 
 Conn. 288; Tingier v. Chamberlin 
 (Conn.), 42 Atl. 718; Cooper's 
 548 
 
 Estate, 150 Penn. St. 576; Law- 
 rence's Estate, 136 id. 354 ; Dulany 
 V. Middleton, 72 Md. 67 ; Dana v. 
 Murray, 122 N. Y. 604 ; Fowler i'. 
 Ingersoll, 127 N. Y. 472; Under- 
 wood V. Curtis, id. 523 ; Schermer- 
 horn V. Cotting, 131 N. Y. 48; 
 Murphy v. Whitney, 140 N. Y. 541; 
 Bird V. Pickford, 141 N. Y. 18. The 
 true object of the rule against per- 
 petuities was not to remove restric- 
 tions on the immediate conveyance 
 of property, but to prevent the crea- 
 tion of interests on remote contin- 
 gencies. Gray on Perpetuities, 
 §§ 269, 278; but see 8 Harv. L. 
 Rev. 212. A gift to one then 
 living, if still alive at the end of 
 forty-nine years, and, if then de- 
 ceased, to her issue, if she leaves 
 issue, is not void for remoteness. 
 In re Daveron, [1893] 3 Ch. 421.
 
 CHAP. XIII.] RULE AS TO EQUITABLE ESTATES. [§ 383. 
 
 more be tolerated when it is covered by a trust, than when it 
 displays itself undisguised iu the settlement of a legal 
 estate.^ "If," as Lord Guilford said, "inequity you could 
 come nearer to a perpetuity than the common law admits, all 
 men, being desirous to continue their estates iu their fami- 
 lies, would settle their estates by way of trust, which might 
 make well for the jurisdiction of chancery, but would be 
 destructive to the commonwealth." 
 
 § 383. Therefore, the creation of a trust or equital)le in- 
 terest, which may not vest in the object of the trust within 
 the time limited by law for the vesting of legal estates, will 
 be nugatory. 2 Thus where a testator devised his real estate 
 to trustees, in trust to apply the rents to the support of his 
 wife, and his present and future grandchildren, during the 
 life of the wife, and on her death to convey the estates to all 
 his present and future grandchildren, as they respectively 
 attained the ago of twenty-five years, to hold to them and 
 their heirs as tenants in common, it was held that the trust 
 to convey was void, for the reason that some of the grand- 
 children might not become twenty-five years old until after 
 the expiration of the life of the tenant for life, and twenty- 
 one years in addition. ^ So a testator cannot authorize his 
 
 1 Norfolk's Case, 1 Yern. 164 ; Humberston v. Humberston, 1 P. Wms. 
 332; Parfitt v. Ilember, L. R. 4 Eq. 443; Sears v. Putnam, 102 Mass. 5; 
 Lovering v. Worthington, lOG Mass. 86. 
 
 2 Bailey v. BaUey, 28 Hun, 6U3. 
 
 * Blagrave v. Hancock, 16 Sim. 374; Dodd v. Wake, 8 Sim. 615; 
 
 No perpetuity arises upon a condi- revocable at any time. Pulitzer r. 
 
 tion subsequent. In re Stickney's Livingston, 89 Maine, 359. The 
 
 Will, 85 Md. 79, 103. A limitation rule is determined, as to personal 
 
 which may be too remote does not property, by the law of the domicil. 
 
 invalidate another limitation de- Cross v. U. S. Trust Co , 131 X. Y. 
 
 pending upon an alternative con- 330. Thus, the provisions of a 
 
 tingency which is not obnoxious to foreign will may be valid in a State 
 
 the rule. Perkins v. Fisher, 59 Fed. where the same legatees, taking 
 
 Rep. 801. The rule against per- there under the will, and citizens 
 
 petuities does not relate to vested of that State, could not take under 
 
 estates or interests, nor does it a domestic will. Dammert r. Osborn, 
 
 apply to trusts or powers that are 140 X. Y. 30; 141 id. 564. 
 
 549
 
 § 384.] PERPETUITIES AND ACCUMULATIONS. [CIIAP. XIII. 
 
 trustees to limit an estate beyond the limits of the rule against 
 perpetuities; but the persons appointed to take must be 
 capable of taking directly under the will.^ So where a tes- 
 tator devised land to a corporation in trust to convey the 
 same to A. for life, with remainder to his oldest son for life, 
 remainder to the son's oldest son for life, and so on in an 
 endless series, and in default of issue of A., then to B. for 
 life, and remainder to his oldest son for life, and so on in 
 the same manner as to the sons of A., it was held to be void 
 and vain as a perpetuity. ^ So if any directions are given 
 which, if complied with, must enforce a perpetuity, they 
 will be void; as when a testator gave land to a college, and 
 directed that the same should be leased forever to his wife's 
 relations at two-thirds its value, it was held to be a void 
 direction, as tending to a perpetuity. ^ 
 
 § 384. In private trusts the beneficial interest is vested 
 absolutely in some individual or individuals who are, or 
 within a certain time may be, definitely ascertained; and to 
 whom, therefore, collectively, unless under some disability, 
 it is, or within the allowed limit will be, competent to 
 control, modify, or end the trust. Private trusts of this 
 kind cannot be extended beyond the legal limitations of 
 a perpetuity, as before stated. Nor can a settlor give 
 his trustees a power to appoint the property subject to a 
 trust, to new trusts to arise at or upon the termination 
 of the trusts created by himself. But a trust created 
 for charitable or public purposes is not subject to similar 
 
 Broughton v. James, 1 Coll. 26; 2 H. L Cas. 406; Walker v. Mower, 
 16 Beav. 365; Leake v. Robinson, 2 Mer. 363; Sears v. Russell, 8 
 Gray, 86. 
 
 1 Marlborough v. Godolphin, 1 Ed. 404 ; Robinson v. Hardcastle, 2 T. 
 R. 241, 380, 781; Fonda v. Fenfield, 56 Barb. 503 ; Barnum v. Barnura, 
 26 Md. 119. But a power to change trustees does not come within the 
 principle. Clark v. Piatt, 30 Conn. 282. 
 
 2 Humberston v. Humberston, 1 P. Wms. 332 ; Pai-fitt v. Hember, L. 
 R. 4 Eq. 442 ; Floyer v. Bankes, L. R. 8 Eq. 115. 
 
 8 Att. Gen. v. Greenhill, 9 Jur. (n. s.) 1307. 
 
 550
 
 CHAP. XIII.] TRUST APPLIKD CONTRARY TO RULE. [§ 3S5. 
 
 limitations, but it may continue fur a jtermancnt or in- 
 definite tiinc.'((;) 
 
 § 385. A trust to raise a sum of money out of an estate 
 will be good if properly limited, although the trust itself upon 
 which the money is limited after it i.s raised is void as being 
 too remote. In such case, the heir will take the money as 
 personal estate.^ Contingent remainders of trust estates do 
 not follow the strict rules of legal estates, but they arc made 
 to wait upon the contingency. In legal estates, the contin- 
 gency must haj)pen bcfoi-e the time, or the estate is gone. 
 In the contingent remainders of equitable estates here spoken 
 of, if the contingency may happen within the time, the estate 
 is made to wait: if it happens, the estate vests; if it does 
 not happen, the estate fails. ^ 
 
 1 Christ's Hospital v. Granger, 1 Mac. & G. 460; Att. Gen. v. Foster, 
 10 Ves. 344; Att. Gen. v. Newcombe, 14 Ves. 1 ; Fearon v. Webb. id. 19; 
 Walker v. Richardson, 2 M. & W. 802 ; Att. Gen. v. Aspinal, 2 Alyl. & Cr. 
 622 ; Att. Gen. v. Ileelis, 2 S. & S. 76 ; Att. Gen. v. Shrewsbury, 6 Beav. 
 224; Odell v. Odell, 10 Allen, 1; Ga.ss v. Wilhite, 2 Dana, 183;*^ Griffin v. 
 Graham, 1 Hawks, 131 ; Miller v. Chittenden, 2 Iowa, 3G2; Philadelphia 
 r. Girard, 45 Penn. St. 26 ; Yard's App., 64 id. 05. The rule is held 
 differently under the legislation of the State of New York. Levy v. Levy, 
 33 N. Y. 130 ; Bascorabe v. Albertson, 34 N. Y. 598; Beekman v. Bonsor, 
 23 N. Y. 308 ; Yard's App., 64 Penn. St. 05, and see White v. Hale, 2 
 Cold. 77. 
 
 2 Ellis V. Lynch, 8 Bo-sw. 465; Burnly v. Evelyn, 16 Sim. 290; Tre- 
 gonwell c. Sydenham, 3 Dow. 194. But see Parson r. Snook, 40 Barb. 
 144. 
 
 8 Mogg V. Mogg, 1 ]\Ier. 654 ; Monypenny v. Deering, 7 Hare, 568 ; 
 
 (a) The rule against perpetuities re Tyler, [1891] 3 Ch. 252; In re 
 
 "does not apply to a gift to a charity, Bowen, [1893] 2 Ch. 491; In re 
 
 with no intervening gift to or for Nottage, [1805] 2 Ch. 649; White 
 
 the benefit of a private person or v. Keller, 68 F. R. 796; Mills r. 
 
 corporation; or to a contingent Davison, 54 N. J. Eq. 659; Webster 
 
 limitation over from oue charity to v. Alorri.?, 66 Wis. 366; Alden r. 
 
 another. But it does apply to a St. Peter's Parish, 158 III. 631 ; 
 
 grant or devise to a private person, Garrison v. Little, 75 111. App. 402. 
 
 although limited over after an ira- The exception in favor of charities 
 
 mediate gift to a charity." ]Mr. relates only to gifts, not to sales for 
 
 Justice Gray, in Hopkins c. Grim- a valuable consideration. Holmes 
 
 shaw, 165 U. S. 342, 355. See In v. Trustees (N. J. Eq.). 41 Atl. 102. 
 
 551
 
 § 386.] PERPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 § 38G. A legal estate in fee cannot be conveyed to a person 
 "with a provision that it shall not be alienated, or that it 
 shall not be subject to the claims of creditors ; and so trusts 
 cannot in general ^ be created with a proviso, that the equi- 
 table estate, or interest of the cestui que trust, shall not be 
 alienated or charged with his debts. ^ (a) If it is ascertained 
 that an interest is vested in the cestui que trust, the mode in 
 which or the time when he is to reap the benefit is immate- 
 rial. The law does not allow property, whether legal or 
 equitable, to be fettered by restraints upon alienation. 
 
 Alexanders. Alexander, 16 C. B. 59; Hopkins v. Hopkins, 1 Atk. 581; 
 Festing v. Allen, 12 M. & W. 279 ; Sayer's Trusts, L. R. 6 Eq. 319; Litt 
 V. Randall, 3 Sm. & G. 83 ; Hodson v. Ball, 14 Sim. 558 ; Jee v. Audley, 
 1 Cox, 324; Church in Brattle Square v. Grant, 3 Gray, 142 ; Arnold v. 
 Congreve, 1 R. & M. 209 ; Wilson v. Wilson, 4 Jur. (n. s.) 1076 ; 28 L. J. 
 (x. s.) 95 ; Storrs v. Benbow, 3 De G., M. & G. 390; Cattlin v. Brown, 11 
 Hare, 372; Griffith v. Pownall, 13 Sim. 393; Merlin v. Blagrave, 25 Beav. 
 125; Greenwood v. Roberts, 15 Beav. 92 ; Dungannon v. Smith, 12 CI. & 
 Fin. 546 ; Seaman v. Wood, 22 Beav. 591; Vanderplank v. King, 3 Hare, 
 1; Webster v. Boddington, 26 Beav. 128; Curtis v. Lukin, 5 Beav. 147; 
 Hardenburg v. Blair, 30 N. J. Eq. 42 ; Newark Meth. Episc. Ch. v. Clark, 
 41 Mich. 730. 
 
 1 This is the rule in England and in some of our States; but the con- 
 trary is strongly held iu a Massachusetts case of the year 1882. See 
 § 827 a. 
 
 2 Snowdon v. Dales, 6 Sim. .524; Green v. Spicer, 1 R. & M. 395; 
 Graves v. Dolphin, 1 Sim. 66 ; Brandon i: Robinson, 18 Ves. 429; Ware v. 
 Cann, 10 B, & Cr. 433 ; Bradley v. Peixoto, 3 Ves. 324 ; Hood v. Oglander, 
 34 Beav. 513 ; Bird v. Johnson, IS Jur. 976 ; Blackstone Bank v. Davis, 
 21 Pick. 43 ; Etches v. Etches, 3 Drew. 441 ; Sparhawk v. Cloou, 125 :\Iass. 
 262 ; Daniels v. Eldredge, id. 350. 
 
 (a) Todd V. Sawyer, 147 Mass. mortgage to secure corporate bonds. 
 
 570; Winsori'. Mills, 157 Mass. 362; Atlantic Trust Co. v. Woodbridge, 
 
 Gushing v. Spaulding, 164 Mass. &c. Co., 86 F. R. 976. The rule is 
 
 287. A gift to a certain bishop and violated by a devise which creates 
 
 his successors does not violate the either an active trust or a power in 
 
 rule against perpetuities when there trust whenever the right to alienate 
 
 is no restraint upon alienation, is suspended beyond the term al- 
 
 Lamb v. Lynch (Xeb.), 76 N. W. lowed by it. Cottman v. Grace, 112 
 
 428. So of a mining lease for 999 N. Y. 299 ; Claflin v. Claflin, 149 
 
 years. Henderson i-. Virden Coal Mass. 19; Staples v. Hawes, 53 
 
 Co., 78 Til. App. 437. And of a N. Y. S. 860. 
 552
 
 CHAP. XIII.] RESTRAINTS UPON ALIENATION. [§ 386 a. 
 
 Therefore, when an equitable interest is once vested in the 
 cestui que trust, he may dispose of it, or it may j)a.ss to his 
 assignees by operation of law, if he becomes a bankrupt. 
 Thus a trust for a person's support,' or to pay the interest to 
 a person for life, as the trustees may think proper,^ or when 
 it shall become payable,' or in such sums or portions, and at 
 such times and in such manner as the trustees think best,* 
 may be exercised according to the discretion of the trus- 
 tees; (a) but the bankrujjtcy of the cestui que trust puts an 
 end to the discretion of the trustees, and vests the whole in- 
 terest in the assignees; and this is so, even where the trus- 
 tees were directed to pay as they should think proper, and at 
 their will and pleasure and not otherwise, so that the cestui 
 que trust should have no right, claim, or demand, other than 
 the trustees should think proper. The court thought, in 
 Snowdon v. Dales, that, taking the whole instrument to- 
 gether, the cestui que trust had a vested interest, that these 
 directions applied only to the manner of enjoyment, and that 
 the equitable interest vested in the assignees at his bank- 
 ruptcy.^ The test is. Would executors of the cestui que trust 
 have a right to call for any arrears? if so, the assignees would 
 have the right to call for the future income or interest.^ 
 
 § 386 a. This doctrine, that the incidents of a legal title 
 attach to an absolute equitable interest, and that an equitable 
 estate for life in any other than a married woman carries 
 with it the power of alienation by the cestui que trust, and 
 may be taken for the payment of his debts, and that no pro- 
 vision which does not operate to terminate his interest can 
 protect it from the claims of creditors, is the well-settled law 
 of England, and has been approved and applied in many dicta 
 
 ^ Younghusband v. Gi.sborne, 1 Coll. 400. 
 
 2 Green r. Spicer, 1 U. & .M. 305. 
 
 " Graves v. Dolphin, 1 Sim. 66. 
 
 4 Piercy r. Roberts, 1 Myl. & K. 4. 
 
 6 Snowdon v. Dales, 6 Sim. 524. 
 
 8 Re Sanderson's Trust, 3 K. & J. 497. 
 
 (a) See infra, § 827 a. 
 
 553
 
 § 386 a.] PERPETUITIES AXD ACCUMULATIONS. [CIIAP. XIII. 
 
 and decisions in the United States.^ But it has not been 
 allowed to pass unchallenged, and there is eminent authority 
 in the Federal and the State courts for the proposition, that 
 the power of alienation is not a necessary incident to an 
 equitable estate for life, and that the owner of property may, 
 in the free exercise of his bounty, so dispose of it as to secure 
 its enjoyment to the objects of his bounty without making 
 it alienable by them or liable for their debts, and that this 
 intention, clearly expressed by the founder of a trust, must 
 be carried out by the courts.'-^ (a) In those States, however, 
 
 1 Ante, § 386, cases cited: Tillinghast r. Bradford, 5 R. I. 205 ; Smith 
 V. Moore, 37 Ala. 327 ; Hallett v. Thompson, 5 Paige, 583 ; Bramhall v. 
 Ferris, 14 N. Y. 41, 44; Williams v. Thorn, 70 X. Y. 270; Nichols v. 
 Levy, 5 Wall. 433, 441; Sellick v. Mason, 2 Barb. Ch. 79; Mclllvaine 
 V. Smith, 42 Mo. 4.5; Heath v. Bishop, 4 Rich. Eq. 40; Rider v. Mason, 
 4 Sandf. Ch. 3.32; Easterly v. Keney, 36 Conn. 18; Xickell v. Ilandley, 
 10 Grat. 336 ; Girard Life Ins. Co. v. Chambers, 46 Pa. St. 485 ; Dick v. 
 Pitchford, 1 Dev. & B. Eq. 480; Mebane v. Mebane, 4 Ired. Eq. 131 ; Pace 
 V. Pace, 7 N. C, 119. And a trust made void by an illegal suspension of 
 the power of alienation is not made valid by a power of sale in the trus- 
 tee, the proceeds remaining subject to the trust. Garvey v. McDavitt, 11 
 Hun (X. Y.), 457; Brewer r. Brewer, id. 147; but see Braman v. Stiles, 
 4 Pick. 400. 
 
 2 Nichols V. Eaton, 91 U. S. 716 ; cited and approved in Hyde v. Woods, 
 94 U. S. 523 ; Ashurst i^. Given, 5 Watts & S. 323 ; Holdship v. Patterson, 
 7 Watts, 547 ; Brown v. Williamson, 36 Penn. St. 338 , Still v. Spear, 45 
 id. 168; Shankland's App., 47 id. 113; Pope v. Elliott, 8 B. Mon. 56; 
 White V. White, 30 Yt. 338 ; Campbell v. Foster, 35 N. Y. 361. The 
 argument in these cases proceeds upon the ground, that the doctrine of 
 the English cases must rest upon the rights of creditors ; and it is claimed 
 that the policy of the States of this Union has not been carried so far in 
 furtherance of creditors' rights, that creditors can have no claim upon 
 property which belonged to the founder of the trust, and of which he had 
 the full and entire right of disposing as he chose, for the benefit of the 
 cestui que trust, w'ho parts with nothing in return, and that the intent of 
 the donor clearly expressed in disposing of his property for a lawful pur- 
 pose must be carried out; and the laws enacted in nearly or quite every 
 State, exempting property of greater or less amounts in value from liabil- 
 ity for the payment of debts, are relied on as showing the policy of these 
 States. It is conceded that there are, however, limitations, which public 
 policy or general statutes impose upon dispositions of property, such as 
 
 (o) See infra, § 827 a, and note (a). 
 
 554
 
 CIIAr. XIII.] RESTRAINTS UPON ALIENATION. [§ 386 a. 
 
 where the doctrine of the English cases has been adopted, 
 these distinctions and observations must be borne in mind. 
 If the absolute equitable interest is in the cestui que trust, it 
 goes to his assignees or creditors in case of insolvency. And 
 it may be said that, if an absolute equitable interest is given 
 to a cestui que trust, no restraints upon alienation can be im- 
 posed. But a trust may be so created that no interest vests 
 in the cestui que trust ; consequently, such interest cannot be 
 alienated, as where property is given to trustees to be apjilied 
 in their discretion to the use of a third person, no interest 
 goes to the third person until the trustees have exercised 
 this discretion. So if property is given to trustees to be 
 apjilicd by them to the support of the cestui que trust and his 
 family, or to be paid over to the cestui que trust for the sup- 
 port of himself and the education and maintenance of his 
 children. In short, if a trust is created for a specific pur- 
 
 those designed to prevent perpetuities and accumulations in corporations, 
 &c. But the owner of property is governed by the rules of law, both in 
 the use and enjoyment and in disposing of his property; and the doctrine 
 in question seems to be founded upon the rule that title to property 
 includes the right of alienation and liability for debts, and it seems 
 impossible that there can be any reason in public policy, under a free 
 government, having for its object the growth and development of a com- 
 mercial people; for such a limitation of the incidents of title to property 
 and the argument from the exemption laws would seem to be well an- 
 swered by the maxim, expressio unius est exclusio alterius. Many of the 
 American cases, where the English doctrine has been doubted or denied, 
 seem to have been cases of trusts for the support and maintenance of the 
 cestui que trust: and a clearly manifested intention on the part of the 
 donor that the income of the fund shall be devoted to that purpose may 
 impose a duty and give a consequent power in the trustee, either in his 
 discretion or under the direction of the court, to pay over the income only 
 in such manner as shall insure its application in accordance with the in- 
 tent of the donor and protect it from the claims of creditors and the improvi- 
 dence of the beneficiary, with substantially the same result upon the 
 absolute character of the estate of the cestui que trust as if the instrument 
 declaring the trust had expressly provided that the payments should be 
 made at the discretion of the trustee, — a result more in accordance 
 with the rules of interpretation than a strict adherence to a definition to 
 the extent of defeating the accomplishment of the benefit intended by the 
 donor. 
 
 555
 
 § 386 b.] PERPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 pose, and is so limited that it is not repugnant to the rule 
 against perpetuities and is in other respects legal, neither the 
 trustees, nor the cestui que trust, nor his creditors or assign- 
 ees, can divest the property from the appointed purposes.^ (a) 
 Any conveyance, whether by operation of law or by the act 
 of any of the parties, which disappoints the purposes of the 
 settlor by divesting the property or the income from the pur- 
 poses named, would be a breach of the trust. Therefore it 
 may be said, that the power to create a trust for a specified 
 purpose does, in some sort, impair the power to alienate 
 property. 
 
 § 386 b. In the cases referred to in the last section, it will 
 be perceived that the trust may be for a particular purpose, 
 and that purpose may not be exclusively for the benefit of 
 the primary cestui que trust; as where an estate was vested 
 in trustees by a marriage settlement in trust to apply the 
 annual produce thereof "for the maintenmice and support of 
 A. B. , his wife and children, " it was held that the wife and 
 children were to be supported, and that A. B. was entitled 
 to the surplus after their support, and that such surplus 
 would go to his assignees in case of his bankruptcy : ^ but 
 when the trustees have an arbitrary power of applying such 
 part of an income as they see fit to support of a cestui que 
 trust, and for no other purpose, it was held that nothing 
 passed to his assignees. ^ And so if the trustees are to apply 
 
 1 Rife V. Geyer, 59 Penu. St. 393 ; Wells v. McCall, 64 id. 207; White 
 V. White, 30 Vt. 342 ; Clute v. Bool, 8 Paige, 83 ; Bramhall v. Ferris, 14 
 N. Y, 44 ; Doswell v. Anderson, 1 P. & H. (Va.) 185; Raikes v. Ward, 
 1 Hare, 445 ; Crockett v. Crockett, id. 451 ; Wetmore v. Truslow, 51 N. Y. 
 338; Graff v. Bonnett, 31 N. Y. 9; Locke v. Mabbett, 3 Court of App. 
 Dec. 68; Blackstone Bank v. Davis, 21 Pick. 42 ; Etches v. Etches, 3 Drew. 
 441 ; Genet v. Beekman, 45 Barb. 382 ; Chase v. Chase, 2 Allen, 101 ; Lor- 
 ing V. Loring, 100 Mass. 340 ; Cole v. Littlefield, 35 ]\le. 439. See ante, 
 § 117, and notes. 
 
 2 Page V. Way, 3 Beav. 20. 
 
 8 Twopenny v. Peyton, 10 Sim. 487 ; Re Sanderson's Trust, 3 K. & J. 
 497; Lord v. Bun, 2 Y. & C. Ch. 98 ; Holmes v. Penney, 3 K. & J. 90. 
 
 (a) See Young v. Snow, 167 Mass. 287; Sidway v. Isichol, 62 
 Ark. 146. 
 
 556
 
 CHAP. XIII.] RESTRAINTS UPON ALIENATION. [§ 388. 
 
 the money to the support of one and his wife and children, 
 nothing tangible can i)ass to the assignees ; ' but if the power 
 is not arbitraj-y, but is imperative on the trustees to pay over 
 the income for the support of the cestui que trust and another 
 person or persons, the assignees are entitled to take a part 
 upon the insolvency of one, or the whole in the event of the 
 death of the others. ^ 
 
 § 387. There is a further exception to the general rule, 
 that an equitable interest, without the right to alienate, can- 
 not be created ; and that is in the case of trusts created for 
 married women. It is not unusual to create trusts for mar- 
 ried women, and give such women all the rights of unmarried 
 women over their separate Equitable interests, and at the 
 same time to insert a clause against their anticipating the 
 income, by which means they are unable to assign or trans- 
 fer it, or in any way receive any benefit from the property, 
 except by receiving the income, as it becomes due and 
 payable.^ 
 
 § 388. But though a settlor cannot put a restraint upon 
 alienation, or exclude the rights of creditors, he may settle 
 property upon another in such manner that it cannot be 
 alienated, and creditors and assignees cannot take it. But 
 in such case the cestui que trust must lose the use of the prop- 
 erty in case of his bankruptcy. Thus A. may settle projierty 
 upon B. until alienation or bankruptcy, with a limitation 
 over to C. upon cither event. Or A. may give real or per- 
 sonal estate to B. with a proviso, that, on alienation or bank- 
 ruptcy, it shall shift over to C* But a clause divesting the 
 
 1 Godden v. Crowhurst, 10 Sim. 642; Kearsley v. "Woodcock. 3 Hare, 
 185; Wallace v. Anderson, 16 Beav. 533 ; Hall i'. Williams et al., 120 Mass. 
 344. 
 
 2 Rippon V. Norton, 2 Beav, 63 ; Wallace i-. Anderson, 16 Beav. 533 ; 
 Perry v. Roberts, 1 Myl. & K. 4. 
 
 8 Pickering v. Coates, 10 Phila. 65 ; A.sh v. Bowen, id. 96. See this 
 matter stated post, chap, on Trusts for INIarried Women, §§ 670. 671. 
 
 * Muggeridge Trusts, Johns. Ch. (Eng.) 6-J5 ; Kearsley r. Woodcock, 
 3 Hare, 185; Joel v. Mills, 3 K. & J. 458; Large's Case, 2 Leon. 82; 
 
 557
 
 § 389.] PERPETUITIES AND ACCUMULATIONS. [cHAP. XIII. 
 
 property upon alienation alone, will embrace only the volun- 
 tary acts of the party, and will not apply to transfers by 
 operation of law, as by bankruptcy,^ unless it was intended 
 that the clause should have so wide a signification. ^ Nor 
 will a power to confess judgment be a voluntary act of alien- 
 ation, unless it was within the contemplation of the par- 
 tics ; ^ nor will the marriage of a woman be an alienation of 
 her cJioses in actio7i.^ So if there is a clause against antici- 
 pation, an assignment of arrears already accrued, and not of 
 future income, is good.^ An assignment in general words 
 will not embrace property which would be forfeited by such 
 assignment.*^ 
 
 § 389. If a testator devises his real estate in strict settle- 
 ment, and then gives his personal estate to such tenant in 
 tail as first attains the age of twenty-one, if the tenant in 
 tail is not of age at the testator's death, the event may never 
 occur, and the trust is void. But if the personal property is 
 given upon trusts that correspond to the settlement of the 
 real estate, with a proviso that it should not vest absolutely 
 
 Churchill v. JNIarks, 1 Coll. 441 ; Sharpe v. Cossent, 20 Beav. 470 ; Shee 
 V. Hale, 13 Ves. 404 ; Lewes v. Lewes, 6 Sim. 304 ; Cooper v. Wyatt, 5 
 Madd. 482 ; Lockyer v. Savage, 2 Stra. 947 ; Yarnold v. Moorhouse, 1 R. 
 & M. 364; Stephens v. James, 4 Sim. 499; Ex parte Oxlej, 1 B. & B. 257; 
 Rochford v. Hackman, 9 Hare, 475 ; Ex parte Hinton, 14 Ves. 598; Stan- 
 ton V. Hall, 2 R. & M. 175; Hall v. Williams, 120 Mass. 344; Kichols v. 
 Eaton, 91 U. S. 716. 
 
 1 Lear v. Leggett, 2 Sim. 479 ; 1 R. & M. 690 ; Wilkinson v. Wilkin- 
 son, G. Coop. 259; 3 Swanst. 528 ; Whitfield v. Prickett, 2 Keen, 908. 
 
 2 Cooper V. Wyatt, 5 Madd. 482 ; Dommett v. Bedford, 6 T. R. 684. 
 
 8 Avison V. Holmes, 1 John. & II. 530; Barnet v. Blake, 2 Dr. & Sm. 
 117. 
 
 4 Bonfield v. Hassell, 32 Beav. 217. 
 
 5 Re Stulz Trusts, 4 De G., M. & G. 404 ; 1 Eq. R. 334. 
 
 6 Re Waley's Trust, 3 Eq. R. 380. And as to the general effect of 
 proceedings in insolvency and bankruptcy, and of annulling the proceed- 
 ings, see Lloyd v. Lloyd, 1 W. N. 307 ; Pym v. Lockyer, 12 Sim. 394 ; 
 Brandon v. Aston, 2 Y. & C. Ch. 24; Churchill v. Marks, 1 Coll. 441; 
 Townsend v. Early, 34 Beav. 23; Martin v. Margham, 14 Sim. 230; Gra^ 
 ham V. Lee, 23 Beav. 388. 
 
 558
 
 CHAP. XIII.] LEGISLATION. [§ 390. 
 
 in any tenant in tail unless he attained twenty-one, the trust 
 is good.' 
 
 § 390. Thus where trusts are complete in themselves, or 
 arc what arc termed executed trusts, courts will not mould, 
 alter, or jmt any pectiliar construction on them, in order to 
 avoid or evade the rule against perpetuities. The ordinary 
 rules of construction will be adhered to without regard to 
 the consequences of avoiding trusts that are illegal. ^ But in 
 cases of executory trusts, where trustees are directed to 
 settle a formal deed of trust upon terms which are faintly 
 and incompletely sketched, another rule will be applied. If 
 from the articles or will it ajipears that a perpetuity was 
 intended, that must be the end of the trust, whether exe- 
 cuted or executory. But if the direct object of the limita- 
 tions suggested in the articles is not the creation of a perpe- 
 tuity, and if the remoteness is confined to some of the 
 distant links only in the chain of limitations, equity, in de- 
 creeing the settlement, will carry into effect the general 
 intention, especially if the expression of that intention 
 clearly indicates that the limitations are to be carried out so 
 far as the law allows.^ 
 
 1 Gosling V. Gosling, 1 De G., J. & S. 1, 17, Am. ed. Perkins, note 1 ; 
 s. c. L. R. 1 II. L. 279 ; Lincoln v. Newcastle, 12 Ves. 218; Dungauuoa 
 V. Smith, 12 CI. & Fin. 546 ; Scarsdale v. Curzon, 1 John. & H. 40. 
 
 - Blagrave i*. Hancock, 16 Sim. 371. 
 
 8 Ante, § 370; Bankes v. Le Despencer, 10 Sim. 570; 7 Jur. 210; 11 
 Sim. 508 ; Lincoln v. Newcastle, 3 Ves. 887 ; 12 Ves. 218 ; Phipps v. 
 Kelynge, 2 V. & B. 57, n. ; Woolmore v. Burrows, 1 Sim. 512 ; Dorchester 
 V. Effingham, 10 Sim. 587, 588, n. ; 3 Beav. 180 ; Kampf v. Jones, 2 Keen, 
 750 ; Tregonwell v. Sydenham, 3 Dow, 194 ; 1 Jar. on Wills, 235, n. ; see 
 argument of Sir Edward Sugden in Bengough v. Edridge, 1 Sim. 220, 
 227; Mogg r. Mogg, 1 Mer. 6.j4 ; 1 Jar. on Pow. Dev. 414, and note; 
 Trevor v. Trevor, 13 Sim. 108 ; 1 II. L. Cas. 239; Tcnnent v. Tennent, 
 Drury, 161 ; Boydell v. Golightly, 14 Sim. 340 ; White v. Briggs, 15 Sim. 
 17 ; Vanderplank v. King, 3 Hare, 5 ; Monypenny i". Deering, 7 Hare, 508 ; 
 2 De G., M. & G. 145 ; 16 :M. & W. 418; Hale r. Pew, 25 Beav. 335; 
 Ilumberston v. Ilumberston. 2 Vern. 737 ; 1 P. Wms. 3-'!2: Pr. Ch. 455; 
 Deerliurst v. St. Albans, 5 !Madd. 232 ; Jervoi?e v. Northumberland, 1 J. 
 & W. 559; Blackburn v. Stables, 2 V. & B. 367; Rowland r. Morgan, 2 
 Phill. 703 ; Parfitt v. Ilember, L. R. 4 Eq 443. 
 
 559
 
 § 391.] TERPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 § 391. In some of the States, legislation has been had 
 whereby the period within which estates must vest is short- 
 ened. Thus in Alabama ^ estates may be given to wife and 
 children, or children only, severally, successively, and 
 jointly, and to the heirs of the body of the survivor, if they 
 come of age, and in default thereof over. But gifts to 
 others than wife and children must vest within the term of 
 three lives in being, and ten years thereafter. In Connecti- 
 cut, 2 no estate can be given by deed or will to any person or 
 persons, except such as are in being, or to the immediate 
 issue or descendants of such as are in being at the time of 
 making the deed or will. In New York,=^ Michigan,^ Minne- 
 sota,^ and Wisconsin,^ the absolute power of alienation can- 
 not be suspended, by any limitation or condition, for a 
 longer period than the continuance of two lives in being at 
 the creation of the estate, except that a contingent remain- 
 der in fee may be limited on a prior remainder in fee to take 
 effect in the event that the persons to whom the first re- 
 mainder is limited shall die under the age of twenty-one years, 
 or upon any other contingency by which the estate of such 
 persons may be determined during their minority. Succes- 
 sive limitations of estates for life are not valid except to per- 
 sons in being at the time of their creation. And if a 
 remainder is limited on more than two successive estates for 
 lives in being, all the subsequent successive estates are void ; 
 and upon the death of those two persons the remainder will 
 take effect as if no other life -estate had been created. No 
 remainder can be created for the life of a person other than 
 the grantee or devisee of such estate, unless such remainder 
 is in fee ; nor can a remainder be created upon such an 
 
 1 Code, 1852. § 1309. 
 
 2 Comp. Stat. 185-1, p. 630, § 4. 
 
 3 2 Rev. Stat. C4th ed.) 133, §§ 15-20; Knox v. Jones, 47 N. Y. 398; 
 Wood V. "Wood, 5 Paige, 590; Ainory v. Lord, 5 Seld. .503; Schutter r. 
 Smith, 41 N. Y. 328 ; Gott v. Cook, 7 Paige, 631 ; Van Vechten v. Vau 
 Vechten, 8 Paige, 104. 
 
 4 Comp. Laws, 1857, c. 85, §§ 15-26. 
 6 Comp. Stat. 1859, c. 31, §§ 15-26. 
 
 « Rev. Stat. 1858, c. 83, «§ 15-26. 
 560
 
 CHAP. XIII.] LEGISLATION. [§ .392. 
 
 estate in a term of years, unless it is for the whole residue 
 of the term. If more than two lives are named, the remain- 
 der takes effect upon the death of tlie two persons first named, 
 in the same manner as if no other persons had been named 
 or lives introduced. A contingent remainder cannot be 
 limited on a term for years, unless the contingency on which 
 it is limited is such that it must vest during the continuance 
 of two lives in being at the creation of such remainder, or at 
 the termination of such term of years. Thus a limitation to 
 A. for life, remainder to B. for life, remainder to C. and D., 
 and the survivor of them, is within the statute, and void as 
 to C. and D. as a limitation upon more than two lives in 
 being.' If the power of alienation is suspended for an in- 
 definite period, the trust is void.^ 
 
 § 392. In Ohio, 3 no estate can be limited to any person or 
 persons, except they arc in being, or to the immediate 
 descendants of such as are in being at the time of making of 
 the deed or will. In Mississippi,* fees -tail are prohibited, 
 and converted into fees-simple ; and estates may be limited 
 in succession to two donees in being, and to the heirs of the 
 body of the remainder-man, and in default thereof to the 
 heirs of the donor in fee. In Indiana,^ the power of selling 
 lands cannot be suspended, by any limitation or condition, 
 longer than the continuance of any number of specified lives 
 in being at the time of the creation of the estate ; except that 
 contingent remainders in fee may be limited on a prior re- 
 mainder in fee, to take effect in the event that the person or 
 persons to whom the first remainder is limited shall be 
 under the age of twenty-one years, or upon any other contin- 
 gency by which the estate of such person or persons may be 
 determined during their minorities. In Kentucky,^ the 
 
 1 Arnold r. Gilbert. 5 Barb. 190. 
 
 2 Donaldson v. American Tract See, 1 N. Y. Sup. Ct. Add. 15; Leon- 
 ard r. Bell, 1 N. Y. Sup. Ct. 008; Kiah v. Grenier, id. 388. 
 
 8 Rev. Stat. 1854, c. 42, § 1. 
 
 * Code, 18.57, c. 38, § 1, art. 3 ; see Jordan v. Roach, 32 Miss. 481. 
 6 Rev. Stat. 1852, p. 238, § 40. 
 « Rev. Stat. c. 80, § 34. 
 VOL. I. — 36 661
 
 § 393.] PEKPETUITIES AND ACCUMULxVTIONS. [CHAP. XIII. 
 
 absolute power of alienation cannot be suspended by limita- 
 tions or conditions for a longer period than during a life or 
 lives in being and twenty-one years and ten months; which 
 is substantially the common-law rule in the form of a stat- 
 ute. So, in Iowa/ alienation cannot be suspended for a 
 period longer than lives in being and twenty-one years. In 
 Arkansas^ and Vermont,^ their constitutions declare that a 
 perpetuity shall not be allowed. What is a perpetuity in 
 those States would necessarily, in the absence of legislation, 
 be determined by the common-law rule. So it is conceived 
 that the common law prevails in those States. In all the 
 other States, except perhaps Louisiana, where the rules of 
 property were derived from the civil law or the code of 
 France, and California, where they were derived from the 
 Spanish laws, the common-law rules as to perpetuities are in 
 force, and trusts that are contrary to these rules are void. 
 
 § 393. Intimately connected with this matter is the rule 
 against accumulations. Trusts for accumulation must be 
 strictly confined within the limits of the rule against perpe- 
 tuities. It has been seen that a settlor may restrain the 
 alienation of property for a life or lives in being and twenty- 
 one years; and, in case the beneficiary is then en ventre sa 
 mere, an addition of nine months may be made to the term. 
 In analogy to this rule, a settlor may prevent the beneficial 
 enjoyment of property for the same length of time, by direct- 
 ing an accumulation of the interest, income, rents, or profits.* 
 
 1 Code, 1851, p. 1191. 
 
 2 Const, art. 2, § 19. 
 
 3 Const, pt. 2, § 36; Gen. Stat. 1863, pp. 25, 446, 
 
 4 Fosdick V. Fosdick, 6 Allen, 43 ; Hooper v. Hooper, 9 Cush. 122 5 
 Thorndike v. Loring, 15 Gray, 391 ; Boughton v. James, 1 Coll. 26; 1 H. 
 L. Cas. 406 ; Southampton v. Hertford, 2 V. & B. 54 ; Marshall v. Hollo- 
 way, 2 Swanst. 432 ; Curtis v. Lukin, 5 Beav. 147; Brown v. Stoughton, 
 14 Sim. 3G9 ; Scarisbrooke v. Skelmersdale, 17 Sim. 187 ; Turvin r. New- 
 come, 3 K. & J. 16 ; Craig v. Craig, 3 Barb. Ch. 76 ; Mathews v. Keble, 
 L. R. 1 Eq. 467 ; L. E. 3 Ch. 691 ; Killam v. Allen, 52 Barb. 605; Dutch 
 Reform Church v. Brandon, id. 228 ; White v. Howard, id. 294 ; Hillyard 
 V. Miller, 10 Barr, 326. 
 
 562
 
 CHAP. XIII.] ACCUMULATIONS. [§ 394 
 
 If a trust for accumulation may possibly exceed this limit, 
 it is wholly void, and it cannot be cut down to the legal 
 limit, (a) 
 
 § 304. The above is the rule where there are no statutes 
 to control it. Trusts, by which the vesting, alienation, or 
 enjoyment of property is postponed beyond the legal period, 
 are considered as contrary to public policy, and therefore 
 void ; and as courts cannot substitute legal directions in the 
 place of illegal provisions in a will, the whole fails if there 
 is an illegal gift for accumulation. The period during which 
 accumulation might go on was found to be inconvenient 
 in case a settlor availed himself of all its terms. Thus 
 Mr. Thellusson, by an ingenious and skilful use of these 
 legal limitations, constructed a will by which a fortune of 
 <£ GOO, 000 was left to accumulate for some person to come 
 into existence in the future, answering a certain description, 
 while mere pittances were given to his children and grand- 
 children then in being. It was calculated that accumula- 
 tions might go on under this will from seventy-five to one 
 hundred years, and that the gross accumulation would amount 
 toasum'frora £32,000,000 to £100,000,000, according to 
 the time during which it might accumulate. The will was 
 most carefully considered and discussed in all the courts, 
 but it was found to be drawn carefully within the law, and 
 all its provisions were sustained.^ Thereupon Parliament 
 interfered, and passed a statute, usually called the Thellusson 
 Act, which curtailed the period during which accumulations 
 
 1 Thellusson r. Woodford, 4 Yes. 227 ; 11 Ves. 112 ; 4 Kent, Cora. 
 285. 
 
 (a) See Scott r. West, 63 Wis. to accumulate. Rogers' Estate, 179 
 
 529. An accumulation for more Penn. St. 602. 
 
 than twenty-one years may legally In Xew York, directions to ac- 
 
 take place by operation of law. cumulate rents, except during the 
 
 Bryan c. Collins, 16 Beav. 17. A minority of legatees, are void by 
 
 direction to apply rents or income statute. See Silencer v. Spencer, 56 
 
 in payment of a specified sum to a X. Y. S. 460. 
 designated person is not a direction 
 
 563
 
 § 395.] PERPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 might be directed. 1(a) This act established four alternate 
 periods during which accumulations might be made : (1) The 
 life of the settlor ; (2) Twenty-one years from the death of 
 the settlor; (3) The minority or minorities of any persons 
 living at the death of the settlor ; (4) During the minority 
 or minorities of any person or persons who, if of full age, 
 would be entitled under the limitations to the income which 
 is directed to be accumulated. 
 
 § 395. It has been determined that these four periods are 
 alternative, and not cumulative, and that accumulations must 
 be confined to one of them.^ If the accumulation does not 
 begin until several years after the testator's death, it must 
 cease at the end of twenty-one years from his death, ^ exclud- 
 ing the day of his death.* The act further directs, that any 
 accumulation directed contrary to its provision shall be void. 
 By these words accumulations directed contrary to the 
 statute are not wholly void, as at common law, but only the 
 excess beyond the time allowed by the statute is void.^ Mr. 
 
 1 Stat. 39 and 40 Geo. III. c. 98. 
 
 2 Ellis v. Maxwell, 3 Beav. 587 ; Rosslyn's Trust, 16 Sim. 391 ; Wilson 
 V. Wilson, 1 Sim. (n. s.) 288. 
 
 3 Nettleton v. Stephenson, 3 De G. & Sm. 366 ; Att. Gen. v. Poulden, 
 3 Hare, 555 ; Webb v. Webb, 2 Beav. 493 ; Shaw v. Rhodes, 1 Myl. & Cr. 
 135. 
 
 4 Toder v. Sansom, 1 Brown, P. C. 468 ; Lester v. Garland, 15 Yes. 
 248 ; East v. Lowndes, 11 Sim. 434. And the day of the death was ex- 
 cluded by the rules of the common law, independently of the statute. 
 Toder v. Sansom, ut supra. 
 
 6 Griffiths V. Vere, 9 Ves. 127 ; Palmer v. Holford, 4 Russ. 403 ; Lang- 
 don V. Simson, 12 Ves. 295; Rosslyn's Trust, 16 Sim. 391 ; Freke v. Lord 
 Carbery, L. R. 16 Eq. 461. There are a great number of cases upon this 
 construction, but they are not important in America. The reader can see 
 1 Jarm. on Wills, 286 ; Hill on Trustees, 394 ; Lade v. Holford, Amb. 
 479 ; Eyre v. Marsden, 2 Keen, 564 ; 4 Myl. & Cr. 231 ; Marshall v. Hol- 
 loway, 3 Swanst. 432 ; Southampton v. Hertford, 2 V. & B. 61 ; Haly v. 
 Bannister, 4 Madd. 277. 
 
 (a) See Smith v. Cuninghame, 729. Upon the Accumulations Act 
 13 L. R. Jr. 480. The periods al- of 1892, see In re Danson, 13 Rep. 
 lowed by this Act are not cumula- 633. 
 tive. Jagger v. Jagger, 25 Ch. D. 
 564
 
 CHAP. XIII.] ACCUMULATIONS. [§ 396. 
 
 Lewis calls this a " rule of construction entirely novel. " ' It 
 is also said, that the act is one of restraining force, and can- 
 not give validity to trusts for accumulation, which arc in 
 themselves void, as transgressing the common-law limits of 
 a perpetuity. Thus a direction to accumulate beyond the 
 time allowed by the statute, but within the time allowed by 
 the common law, will be good for the actual time allowed by 
 the statute, and void only for the excess; but a direction to 
 accumulate, beyond the rule of common law against perpe- 
 tuity, is wholly void notwithstanding the statute. Conse- 
 quently, in England a trust for accumulation may verge 
 almost upon the outside of the limit of a perpetuity, and yet 
 be void only for the excess beyond the time established in the 
 statute; but if a trust for accumulation transcends in the 
 slightest degree the boundary of a perpetuity, it is wholly 
 void, and will fail without regard to the actual course of 
 events.2 
 
 § 396, If a good bequest is made to a devisee, subject to 
 an illegal or void direction to accumulate, as where such 
 direction is independently engrafted upon the devise, and 
 can be stricken out without destroying the substantial form 
 of the gift, the gift may be held to be good, but the direction 
 to accumulate void.^ But where the gift is limited to take 
 effect after a prescribed period of accumulation, and out of 
 the accumulated fund, as part of the subject-matter of the 
 gift, and such period of accumulation is illegal or too re- 
 mote, the gift itself will fail, as the form of the gift in such 
 case is of the suljstance of it. If the gift and all its accu- 
 mulations are of necessity to vest in some person absolutely, 
 in such manner that he will have a right to call for the fund, 
 
 * Lewis on Per. 593. 
 
 2 Lewis on Per. 593, 594; Hargrave, Accum. 91, 110 ; 1 Pow. on Devi, 
 by Jarm. 419; 2 Prest. Abst. 1S3. 
 
 8 Ilaxtum v. Corse, 2 Barb. Ch. 506 ; Craig v. Craig. 3 Barb. Ch. 70 ; 
 Martin v. Margham, 14 Sim. 230; Williams v. Williams, 4 Selden, 525; 
 Phelps V. Pond, 23 N. Y. 09 ; Kilpatriok v. Johnson, 15 N. Y. 322 ; Haw- 
 ley r. James, 5 Paige, 31.S ; Philadelphia v. GirarJ, 45 Penn. St. 1. 
 
 * Amory v. Lord, 5 Selden, 403, 
 
 565
 
 § 397.] PERPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 and stop the accumulations within the legal period, the be- 
 quest will be good, although such persons should allow the 
 accumulations to go on as directed;^ that is, the same rule 
 applies as in the case of perpetuities. The law concerns 
 itself with the possibilities of an illegal accumulation, and 
 not with the fact, whether a person, having an absolute 
 vested right to a fund, allows it to go on accumulating in 
 accordance with a void direction. ^ 
 
 § 397. When a direction to accumulate is void for a part 
 of the term, the income during such void part will belong to 
 the heir or next of kin, or to the residuary legatee. Mr. 
 Jarman has pointed out the destination of such income as 
 follows: (1) Where there is a present gift in possession, and 
 the direction for accumulation is merely to govern the mode 
 of enjoyment, the result is to give those entitled the present 
 income, the same as if the direction had not been given.^ 
 (2) Where the trust for accumulation is grafted upon an 
 estate where vesting is deferred or made contingent until 
 after the period of accumulation, the statute by stopping the 
 accumulation does not hasten the vesting or the possession, 
 and the income goes to the residuary legatee or the heir, 
 according as it is personal or real estate, until the vesting 
 or possession of the estate is matured. But where the resi- 
 due is not given absolutely, but only for life or years, the 
 interest upon a legacy thus directed to be accumulated beyond 
 the legal period goes into the residue of the estate as capi- 
 tal.* (a) (3) Where a residue is directed to be accumulated, 
 
 1 Phipps V. Kelyuge, 2 Ves. & B. 57, n., 63, 62 ; Tregonell v. Syden- 
 ham, 3 Dow, 194 ; Lewis on Per. 640 ; Conner v. Ogle, 4 Md. Ch. 443 ; 
 Saunders v. Vautier, 4 Beav. 115 ; Cr. & Phil. 240 ; Oddie v. Brown, 4 De 
 G. & J. 179 ; Bateraan v. Hotchkin, 10 Beav. 426 ; Bacon v. Proctor, T. & 
 R. 31 ; Briggs v. Oxford, 1 De G., M. & G. 363 ; Williams v. Lewis, H. 
 L. Cas. 1013. 2 Ante, § 181. 
 
 8 Trickey v. Trickey, 3 Myl. & K. 500; Clulow's Trust, 5 Jur. (n. s.) 
 1002 ; 28 L* J. Ch. 696 ; Combe v. Hughes, 11 Jur. (n. s.) 194; 1 Jarm. 
 on Wills, 292; Hawley v. James, 5 Paige, 318. 
 
 * Jones V. Maggs, 9 Hare, 605; Macdonald v. Brice, 2 Keen, 276; 
 
 (a) See Vine v. Raleigh, [1891] 467 ; In re Philips, 49 L. J. Ch. 198; 
 2 Ch. 13; In re Mason, [1891] 3 Ch. Brown v. Wright, 168 Mass. 506. 
 566
 
 CHAP. XIII.] ACCUMULATIOXS. [§ 398. 
 
 the income, when its accumulation becomes illegal, will go 
 to the heir or next of kin, according as the property may be 
 real or personal estate.' (a) (4) The income of the accumu- 
 lations follows the same rule as the accumulation. ^ These 
 are substantially the same rules that ai)))ly to the distrilju- 
 tion of income which is illegally directed to be accumulated 
 at common law. 
 
 § 398. In New York,^ (h) Michigan,^ Wisconsin,^ (c) and 
 Minnesota," the common-law rules in relation to accumula- 
 tions are changed by statutes, which are substantially the 
 
 Eyre j'. ;Marsden, id. 574 ; Ellis v. Maxwell, 3 Beav. 587 ; Nettleton v. 
 Stephenson, 3 I)e G. & Sm. 366; Barrington v. Liddell, 10 Hare, 429; 
 Att. Gen. v. Poulden, 3 Hare, 555; Crawley v. Crawley, 7 Sira. 427; 
 Morgan v. Morgan, 4 De G. & Sm. 175; Hull v. Hull, 24 N. Y. G47; 1 
 Jarm. on Wills, 292. 
 
 1 Skrymsher v. Northcote, 1 Swanst. 566 ; Macdonald v. Bryce, 2 Keen, 
 276 : Pride v. Fooks, 2 Beav. 437; Elborne v. Goode, 14 Sim. 165; Wilson 
 V. Wilson, 1 Sim. (x. s.) 288; Bourne r. Bucktou, 2 Sim. (x. s.) 91 ; Oddie 
 V. Brown, 4 De G. & J. 179 ; Halford v. Stains, 16 Siui. 488 ; Wilde ». 
 Davis, 1 Sm. & G. 475 ; Eyre v. Marsden, 2 Keen, 564; 4 Myl. & Cr. 431 ; 
 Edwards r. Tuck, 3 De G., M. & G. 40; Burt v. Sturt, 10 Hare, 415; I 
 Jarm. on Wills, 292. 
 
 2 Crawley v. Crawley, 7 Sim. 427; O'Neill v. Lucas, 2 Keen, 316; 
 Morgan r. Morgan, 4 De G. & Sm. 175; 20 L. J. Ch. 441; 1 Jarm. on 
 Wills, 292. 
 
 8 Rev. Stat. (4th ed.) p. 135; Craig v. Craig, 3 Barb. Ch. 76; Killam 
 V. Allen, 52 Barb. 605; Hawley r. James, 5 Baige, 480; Hull v. Hull, 24 
 N. Y. 647 ; Robinson v. Robinson, 5 Lansing, 167; Williams r. Williams, 
 8 N. Y. 358; Kilpatrick v. Johnson, 15 X. Y. 322; Haxtun v. Corse, 2 
 Barb. Ch. 508; Lang v. Ropke, 5 Sandf. S. C. 363; Meserole v. Meserole, 
 1 Hun, 66; Pray v. Hedgeman, 27 Hun, 603. 
 
 * Comp. Laws, 1857, c. 85, §§ 15-26. 
 
 6 Rev. Stat. 1858, c. 83, §§ 15-26. 
 
 « Comp. Stat. 1859, c. 31, §§ 15-26. 
 
 (a) See /n re Dallmeyer, [1896] (r) The Wisconsin statute limits 
 1 Ch. 372. the rule to real estate, and does not 
 
 (b) See Roe v. Vingut, 117 N. Y. apply to personalty. Dodge i-. Wil- 
 204 ; Duncklee r. Butler, 56 N. Y. liams, 46 Wis. 70 
 
 S. 491; Farley v. Bucklin, 16 R. L 
 878. 
 
 567
 
 § 399.] PEKPETUITIES AND ACCUMULATIONS. [CHAP. XIII. 
 
 same in each State. In those States accumulations may be 
 directed by deed or will, during the minority of one or more 
 pjersons, to commence with the creation of the estate out of 
 which the accumulation is to be made, and to end with the 
 minority of the persons named. If there is a direction for 
 an accumulation for a longer period, the excess only is void. 
 In Alabama,^ accumulations can go on only for ten years, 
 unless they are for the benefit of a minor child in being at 
 the creation of the trust, or at the death of the testator, in 
 which case they may continue during its minority. In Penn- 
 sylvania,^ trusts for accumulation cannot be created for a 
 longer term than the life or lives of the grantor or testator, 
 and the term of twenty-one years from the death of such 
 grantor or testator, and if these limits are exceeded, the 
 excess is void. In the other States, the common-law rules, 
 as before stated, are supposed to prevail. The rule in regard 
 to accumulation is analogous to the rules in regard to the 
 vesting of executory estates. At common law, the same 
 rule prevails in both cases. In many of the States, the 
 rules regulating the vesting of such estates have been altered 
 by statutes. Whether the modification of those rules by stat- 
 ute, without reference to the rule as to accumulations, would 
 also alter the rule as to accumulations in those States does 
 not seem to have been considered. 
 
 § 399. "Where there are no statutes regulating accumula- 
 tions, a direction to accumulate a fund for a charity, for a 
 term beyond the common-law limit, does not vitiate the gift 
 for the charity,^ although no limit has been determined by 
 courts during which an accumulation for a charity may be 
 permitted. It is probable that courts would take care that 
 no extraordinary or extravagant term for accumulation 
 should be allowed for a future and prospective good. But 
 where there are statutes against accumulations, charities 
 
 1 Code, 1852, § 1310. 
 
 2 Purcl. Dig. 1861, p. 8.53, § 9. 
 
 8 Odell V. bdell, 10 Allen, 1 ; but see Hillyard v. Miller, 10 Penn. St. 
 326; Philadelphia v. Girard, 45 id. 1. 
 568
 
 CHAP. XIII.] ACCUMULATIONS. [§ 400. 
 
 will be governed by the same rules unless they are specially 
 excepted. ' (a) 
 
 § 400. In Bassil v. Lister,^ it was determined that a direc- 
 tion of a testator that premiums on policies of insurance 
 should be paid out of his estate, upon the lives of his sons 
 during their lives, was not a direction for an accumulation 
 within the ])rohibition of the statute. The case is severely 
 criticised in Jarman on Wills ;2 but it would seem, that it 
 would not be illegal for a testator to direct the premiums to 
 be paid upon a life policy, if the primary object of such a 
 direction is not accumulation, but security or safety. The 
 question cannot arise, however, in the absence of statutory 
 provisions upon the subject of accumulations; for it can be 
 an accumulation for one life only in being at the time, and 
 such an accumulation is legal by the rules of the common 
 law. {h) 
 
 1 Martin v. ^largham, 14 Sim. 230. 
 
 2 Bassil I'. Lister, 9 Hare, 177. 
 8 1 Jarm. 291-297. 
 
 (a) See AVharton v. Mastermau, (b) See Re Errington, 70 L. T. 
 
 [1895] A. C. 186. 616. 
 
 569
 
 GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 CHAPTER XIV. 
 
 GENERAL PROPERTIES AND DUTIES OF THE OFFICE OF TRUSTEE. 
 
 § 401. A trustee, having accepted the office, is bound to discharge its duties. 
 
 § 402. He cannot delegate his authority except to agents in proper cases. 
 
 § 40.3. Not responsible if he follow directions in employing agents. 
 
 § 404. "Where agents must be employed. 
 
 § 405. When responsible for agents and attorneys. 
 
 § 406. When not responsible. 
 
 § 407. Difference of liability in law and equity. 
 
 § 408. Trustees responsible for all mischiefs arising from delegating dis- 
 
 cretionary powers. 
 
 § 409. Employing agents or attorneys may not be a delegation of authority 
 
 or discretion. 
 
 § 410. A sale or devise of the trust estate not a delegation of the trust. 
 
 § 411. Several trustees constitute but one collective trustee. 
 §§ 412, 413. When they must all act and when not. 
 
 § 414. As to the survivorship of the office of trustee. 
 
 § 415. General rule as to liability for cotrustees. 
 
 § 416. May make themselves liable, where otherwise they would not be. 
 
 § 417. Trustees must use due diligence in all cases, or they will be liable 
 
 for cotrustees. 
 
 § 418. Cases of a want of due care and prudence. 
 
 § 419. In case of collusion or gross negligence, a trustee will be liable for 
 
 acts of cotrustees. 
 
 § 420. When cotrustees are liable for others upon sales of real estate under 
 
 a power. 
 
 § 420 a. Indemnifying of one trustee by another. 
 
 § 421 As to liability of coexecutors for the acts of each other. 
 
 § 422. An executor must not enable his coexecutor to misapply the 
 
 funds. 
 
 § 423. When executors must all join they are not liable for each other's 
 
 acts ; but they must use due diligence. 
 
 § 424. An executor must not allow money to remain under the sole 
 
 control of his coexecutor. 
 
 § 425. Executors and administrators governed by the same rules. 
 
 § 426. Rule where coexecutors or cotrustees give joint bonds for security 
 
 of the administration of the estate. 
 
 § 427. Trustees can make no profit out of the office. 
 
 § 428. Cannot buy up debts against the estate or cestui que trust at a profit. 
 
 § 429. Cannot make a profit from the use of trust funds in business, trade, 
 
 or speculation. 
 
 § 430. All persons holding a fiduciary relation, subject to the same rule. 
 
 570
 
 CHAP. XIV.] TRUSTEE CANNOT RENOUNCE HIS TRUST. [§ 401. 
 
 § 431. All persons holding fiduciary relations to an estate, subject to 
 
 the M:imc rule. 
 § 432. Can receive no profit for serving in their professional characters a 
 
 trust estate. 
 § 433. Trustees can set up no claim to the trust estate, and ought not to 
 
 betray the title of the cestui i/ue trust. 
 § 434. In F.nf^laiid, u])i)n failure of heirs to the cestui que trust, trustee may 
 
 hold real estate to his own use. 
 § 435. Speculative (juestiona. 
 § 436. In the United States, the interest of the cestui que trust in real estate 
 
 escheats. 
 § 437. So it does in England and the United States in personalty. 
 § 437 a. Cuiitracts of trustee. 
 § 437 I. Signature of trustee. 
 
 § 401. A TRUSTEE, having accepted a trust, cannot re- 
 nounce it. If any one undertakes an office for another, he 
 is bound to discharge its duties, and he cannot free himself 
 from liability by mere renunciation. He must be discharged 
 ]jy a court of equity, or by a special power in the instrument 
 of trust, or by the consent of all parties interested in the 
 estate, if they are sui juris: if all the parties are not sui 
 juris, recourse must be had to a court of equity, in the 
 absence of any provisions in the instrument of trust.^(a) 
 Nor can a party qualify his own acts. Where he is named 
 trustee or executor, and acts in behalf of certain parties in 
 the management of the estate, he cannot protest that he is 
 not acting generally, and that he will not be responsible for 
 any mismanagement. On the contrary, if he so acts, and 
 his coexccutors accept the trust, and commit a devastavit, 
 he will 1)C equally responsible.^ Even if a trustee gives a 
 bond for the due execution of the trust, and in a suit upon 
 
 1 Post, §§ 920-922; Doyle v. Blake, 2 Sch. & Lef. 245; Chalmer v. 
 Bradly, 1 J. & AV. 68 ; Read v. Truelove, Amb. 417 ; Manson v. Baillie, 
 2 ]\Iacq. II. L. Cas. 80; Switzer v. Skiles, 3 Gilm. (111.) 529; Diefendorf 
 r. Spraker, 6 Seld. 246; .Shepherd r. McEvers, 4 Johns. Ch. 136; Matter 
 of Jones, 4 Saiidf. 615; Cruger r. Ilalliday, 11 Paige, 314; Courtenay r. 
 Courtenay, 3 Jo. & Lat. 529. 
 
 2 Lowry r. Fulton, 9 Sim. 123 ; Doyle v. Blake, 2 Sch. & Lef. 231 ; 
 Read v. Truelove, Amb. 417 ; Urch v. "Walker, 3 Myl. & Cr. 702 ; Van Iloru 
 t;. Fonda, 5 Johns. Ch. 403. 
 
 (a) Speakman v. Tutem, 4S N. J. F.q. 136. 
 
 571
 
 § 402.] GENERAL DUTIES OF TRUSTEES, [CHAP. XIV. 
 
 the bond is obliged to pay the full amount, he is not dis- 
 charged from the trust, nor does the trust property vest in 
 him beneficially. He is still a trustee, and must account 
 for the trust property, and all the income and profits. Courts 
 of equity, however, in such cases have power to do equity ; 
 and the trustee would not be ordered to convey the trust 
 property without repayment to him of the money paid out on 
 his bond.^ Until the trustee has been discharged, the cestui 
 que trust may require the due execution of the trust; and 
 where the trustee will not take proper steps to enforce a 
 claim against a debtor, he may file a bill -against the trustee 
 for the execution of the trust and to obtain the proper order 
 for using the trustee's name or for obtaining a receiver to 
 use the trustee's name.^ Trustees will be held to great 
 strictness in their dealings with the estate, but courts will 
 treat them leniently when they act in good faith. ^ A trustee 
 is bound to exercise ordinary care and judgment, and it is no 
 excuse for him that he did not possess them ; by accepting a 
 trust, whether gratuitous or not, he undertakes that he does 
 possess and will exercise them.^ (a) 
 
 § 402. The office of trustee is one of personal confidence, 
 and cannot be delegated. If a person takes upon himself the 
 
 ^ Moorcroft v. Dowding, 2 P. Wms. 314. See Barker v. Barker, 14 
 Wis. 131; Saunders v. Webber, 39 Cal. 287, 
 
 2 Sharps v. San P. Ry. Co., L. R, 8 Ch. 597. 
 
 3 Crabb v. Young, 92 N. Y. 56. 
 
 4 Hun V. Gary, 82 N. Y. 65. 
 
 (a) " Trustees are not bound to of the court upon points of minor 
 
 do anything dishonest or immoral importance in the management of 
 
 for the sake of their cestuis que the trust estate. In re Tyrrell's 
 
 trust." Per Kekewich, J., in Bud- Trusts, 23 L. R. Ir. 263. 
 gett V. Budgett, [1895] 1 Ch. 202, A court of equity will not ad- 
 
 215. vise a trustee upon speculative ques- 
 
 In England, § 30 of Lord St. tions, or those relating to his future 
 
 Leonard's Act (22 & 23 Vict. ch. duties. Whiter. Massachusetts In- 
 
 30), enabling trustees to obtain the stitute of Technology, 171 Mass. 84; 
 
 advice or direction of the court of Quincy u. Att. Gen., 160 Mass. 431, 
 
 chancery, does not relate to nice 437; O'Caia v. O'Cain, 51 S. C. 
 
 questions of law, but was intended 348. 
 to procure for trustees the assistance 
 572
 
 CHAP. XIV.] DELEGATION OF AUTHORITY. [§ 402. 
 
 management of property for the benefit of another, he has no 
 right to imj)usc tliat duty on others, and if he does he will 
 be responsible to the ceatui que trust, to whom he owes the 
 duty.^ Therefore, if a trustee confides his duties or the trust 
 fund to the care of a stranger,^ or to his attorney,^ or even 
 to his cotrustee or coexecutor,* he will be personally respon- 
 sible. J>ut, before this responsibility can arise, the trustee 
 must have accepted the office. Where a person named exec- 
 utor received a bill by post, and passed it over to a co- 
 executor who had accepted the trust, it was held that the act 
 might be considered as the act of a stranger, and did not 
 impose any responsibility.^ So where a coexecutor collected 
 money, and paid it to a banker, who was also his coexecutor, 
 and whom the testator employed as his banker, he was held 
 excused for trusting the same person as his coexecutor whom 
 the testator trusted as his banker. ° 
 
 ^ Turner v. Corney, 5 Beav. 517 ; Taylor i\ Hopkins, 41 111. 442. 
 
 2 Adams r. Clifton, 1 Russ. 297; Kilbee v. Sneyd, 2 Moll. 199 ; Ilard- 
 wick V. Mynd, 1 Anst. 109; Ycnables v. Foyle, 1 Ch. Cas. 2; Douglass 
 V. Browne, Mont. 93 ; Ex parte Booth, id. 248 ; Walker v. Symoiids, 3 
 Swanst. 79, n. (a) ; Char. Corp. v. Sutton, 2 Atk. 405 ; Wilkinson v. Parry, 
 4 Iluss. 272; llulme v. Ilulme, 2 Myl. & K. 682; Black v. Irwin, Harp. L. 
 411; Berger i'. Duff, 4 Johns. Ch. 368; Pearson v. Jamison, 1 McLean, 
 199; Newton v. Bronson, 3 Kern. 587; Andrew v. N. Y. Bible Soc, 4 
 Sandf. 156; Nilesv. Stevens, 4 Denio, 399; Beekman v. Bonsor, 23 N. Y. 
 298 ; Whittlesey v. Hughes, 39 Mo. 13 ; Graham v. King, 50 :\Io. 22 ; 
 Howard v. Thornton, id. 291; Bales v. Perry, 51 Mo. 449. 
 
 8 Chambers v. Minchin, 7 Yes. 196; Griffiths v. Porter, 25 Beav. 236 ; 
 Ingle V. Patridge, 32 Beav. 661 ; 34 Beav. 411; Bostock v. Floyer, L. R. 
 1 Ch. 26; Ex parte Townsend, 1 Moll. 139 ; Ghost v. Waller, 9 Beav. 497; 
 Turner v. Corney, 5 Beav. 115 ; Sinclair v. Jackson, 8 Cow. 582. 
 
 * Langford v. Gascoyne, 11 Yes. 333; Clough v. Bond, 3 Myl. & Cr. 
 497 ; Eaves r. Ilickson, 30 Beav. 136 ; Davis r. Spurling, 1 R, & M. 66 ; 
 Anon., Mos. 35, 36 ; Harrison v. Graham, 1 P. Wms. 241, n. (y) ; Kilbee 
 V. Sneyd, 2 !Moll. 200 ; Marriott v. Kinuersley, Tam. 470 ; Thompson v. 
 Finch, 22 Beav. 316 ; 8 De G., M. & G. 560 ; Dines r. Scott, T. & R. 361 ; 
 Cowell V. Gatcombe, 27 Beav. 568; Trutch r. Lamprell, 20 Beav. 116; 
 Ex parte Winuall, 3 D. & C. 22 ; Berger v. Duff, 4 Johns. Ch. 368. 
 
 6 Balchen v. Scott, 2 Yes. Jr. 678. 
 
 « Churchill v. Ilobson, 1 P. Wms. 241 ; Chambers r. Minchin, 7 Yes. 
 198. And see 1 P. Wms. 241, n. (y). 
 
 573
 
 § 404.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 § 403. So trustees are not responsible, if they follow the 
 directions of the settlor. Thus, where a testator recom- 
 mended his executors to employ a person who had been his 
 own agent and clerk, and they employed him to collect 
 moneys, and he became insolvent, it was held that, as the 
 testator pointed out the agent to whom certain business 
 might be delegated, the executors were not liable for the 
 loss, if they used due diligence to recover the money. ^ So if 
 an executor pays over money which he has no right to retain. 
 Thus a testator appointed A., B., and C. his executors, and 
 authorized A. to sell real estate for certain purposes. A. 
 employed B. as his agent to sell the real estate ; B. sold the 
 estate and paid the money over to A., who misapplied it; and 
 it was held that B. received the money, not as executor, but 
 as agent of A., and as A. had authority to sell, he had a 
 right to the money, and that B. could not retain it, and was 
 not responsible for it.^ 
 
 § 404. But there are circumstances where the trustees 
 must employ agents, (a) Lord Hardwicke said : " There are 
 two sorts of necessity, legal necessity and moral necessity. 
 As to the first a distinction prevails. Where two executors 
 join in giving a discharge for money, and only one of them 
 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 dis- 
 charge and one receives, the other is not answerable, because 
 his joining in the discharge was necessary. 3Ioral necessity 
 is from the usage of mankind, if the trustee acts prudently 
 for the trust, as he would have done for himself, ' and accord- 
 ing to the usage of business ; ' as if a trustee appoint rents to 
 be paid to a banker at that time in credit, but who after- 
 wards breaks, the trustee is not answerable. So in the 
 
 1 Kilbee v. Sneyd, 2 INIoll. 199 ; Doyle v. Blake, 2 Sch. & Lef. 239. 
 
 2 Davis V. Spurliug, 1 R. & M. 64 ; f am. 199 ; Keane v. Roberts, 4 Madd. 
 332, 356 ; Crisp v. Spranger, Xels. 109. 
 
 (a) See supra, § 246, note. 
 574
 
 CHAP. XIV.] DELEGATIOX OF AUTHORITY. [§ 404. 
 
 employment of stewards and agents; for none of these cases 
 are on account of necessity, but because the persons acted in 
 tlic usual method of business. " ' Other cases have held that 
 "necessity includes the usual course of business, "^ as in 
 employing a broker in making investments of a class usually 
 so made."* But the agent must not be employed out of the 
 scope of his regular business.* Where an executor in London 
 remitted money to an executor in the country to pay debts 
 there due, it was held to be a necessary transaction in the 
 course of business, and the executor in London was not 
 responsible for the loss of the money by his coexecutor in 
 the country.^ So, where A. and B. were assignees of a 
 bankrupt, and A. signed dividend checks and delivered them 
 to B. for his signature, and for delivery to the creditors, and 
 they were stolen from B. and negotiated at the bank, it was 
 held that A. was not responsible for the loss, as he had dele- 
 gated the checks to B. in the necessary course of the busi- 
 ness.^ So a trustee is not called upon, in the ordinary course 
 of business, to take security from the agent or other person 
 whom he employs.' One trustee may employ his cotrustee 
 as his agent, or one trustee may act for the whole, within 
 the scope of those duties where an agent may be employed, ^(a) 
 
 ^ Ex parte Belchier, Amb. 219. 
 
 2 Bacon v. Bacon, 5 Ves. 335 ; Clough v. Bond, 3 Myl. & Cr. 497 ; Joy v. 
 Campbell, 1 Sch. & Lef . 341 ; Chambers v. Minchiu, 7 Ves. 193 ; Langford 
 V. Gascoyne, 11 Yes. 33.5; Davis v. Spurling, 1 R. & M. 6G; Muuch r. 
 Cockerell, 5 Myl. & Cr. 211 ; Ilawley v. James, 5 Paige, 487; May v. Frazer, 
 4 Litt. 391 ; Telford v. Barney, 1 G. Greene (Iowa), 575 ; Blight v. Schenck, 
 10 Barr. 285 ; Lewis v. Reed, 11 Ind. 239 ; Mason v. Wait, 4 Scam. 132. 
 
 8 Speight V. Gaunt, 22 Ch. D. 727. 
 
 * Fry V. Tapson, 28 Ch. D. 2G8. 
 
 ^ .Joy V. Campbell, 1 Sch. & Lef. 341 ; Barrings v. Willing, 4 Wash. 
 C. C. 251 ; Jones's App., 8 Watts & S. 147 ; State v. Guilford, 15 Ohio, 593 ; 
 Deaderick v. Cantrell, 10 Yerg. 251 ; Thomas v. Scruggs, id. 401 ; Mac- 
 cubbin v. Cromwell, 7 G. & J. 157. 
 
 6 Ex parte Griffin, 2 G. & J. 114; Wackerbath v. Powell, Buck, 495; 
 2 G. & J. 151. ' Ex parte Belchier, Amb. 220. 
 
 8 Ex parte Rigby, 19 Ves. 463; Abbott v. American Hard Rubber Co., 
 
 (a) If a testator empowers his estate who may be one of them- 
 trustees to appoint a factor tu the selves, but directs them to require 
 
 575
 
 § 407.] GENEllAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 § 405. It was hold in one case, that assignees were re- 
 sponsible for the loss of money by an attorney employed by 
 them to collect debts due the estate, on the ground that 
 there was no necessity for them to allow the attorney to re- 
 ceive a shilling of the money except the costs, as he could 
 not give a valid receipt for the same;^ and Lord Eldon was 
 cited as an authority for this. Mr. Lewin questions this 
 case, and says that trustees must not allow money to remain 
 in the hands of an attorney, but that the authorities are 
 doubtful which say that money may not pass through the 
 hands of an attorney in the ordinary course of business. 
 The case is authority, however, thus far, that attorneys can- 
 not sign receipts for trustees, and if they authorize them so 
 to do, the trustees will be responsible as for the acts of an 
 agent improperly appointed. ^ 
 
 § 40G. If money is to be transmitted to a distant place, a 
 trustee may do so through the medium of a responsible bank, 
 or he may take bills from persons of undoubted credit, pay- 
 able at the place where the money is to be sent; but the bills 
 must be taken to him as trustee : if he neglects these precau- 
 tions he will be responsible for any loss.^ 
 
 § 407. It is said that there is a difference in the rule, as 
 applied to executors in a court of law and a court of equity. 
 Thus, in a court of law, an executor will be charged with all 
 
 33 Barb. 579 ; Sinclair v. Jackson, 8 Cow. 543 ; Webb v. Ledsom, 1 K. & 
 J. 385 ; Leggett v. Hunter, 19 N. Y. 445 ; Bowers v. Seeger, 3 AVatts & S. 
 222. 
 
 1 Ex parte Townsend, 1 Moll. 149; Anon. 12 ]Mod. 560; Re Fryer, 3 
 K. & J. 317. 
 
 2 Lewin on Trusts, 208. 
 
 3 Wren v. Kirton, 11 Ves. 380 ; Ex parte Belchier, 219; Bouth v. Howell, 
 3 Ves. 566; Massey v. Banner, 1 J. & W. 247; Knight v. Plymouth, 1 
 Dick. 120; 3 Atk. 480. 
 
 annual accounts, the trustees are ruthers v. Carruthers, [1896] A. C. 
 guilty of gross negligence if they 659. 
 do not call for such accounts. Car- 
 576
 
 CHAP. XIV.] CANNOT DiaEOATE THE TRUST. [§ 408. 
 
 tlic assets that come to his hands to be a(lininistere<], and he 
 must discharge liimself hy showing a legal administration of 
 all of them ; and he cannot discharge himself at law by show- 
 ing that he intrusted them to another in the ordinary course 
 of business; that he used due caution and prudence, and re- 
 posed a reasonable confidence in such other person; and that 
 the assets were lost without negligence or default on his 
 part. Such a state of facts would not sustain a plea of jd'ne 
 administravit in a court of law. But a court of equity would 
 adjust the account of the executor upon equitable i)rinci]>les. ^ 
 A court of probate, in taking the account, would also act 
 upon equitable principles. ^ 
 
 § 408. If a trust is of a discretionary nature, the trustee 
 will be responsible for all the mischievous consequences of 
 the delegation, and the exercise of the discretion will be 
 absolutely void in the substitute.' (a) Nor can a fZwcretww- 
 ary trust be delegated to a cotrustee.* "Where a sum of 
 money was given to three trustees to be distributed in char- 
 ity in their discretion, and they divided it into three parts, 
 and each took control of a third. Lord Ilardwicke said: "I 
 am of opinion that the trustees could not divide the charity 
 into three parts, and each trustee nominate a third al)SO- 
 lutely, because the determination of the propriety of every 
 
 1 Cross t;. Smith, 7 East, 240; Jones v. Lewis, 2 Yes. 241; Poole v. 
 Munduy, 103 Mass. 174 ; Upson v. Badeau, 3 Bradf. Sur. 13. 
 
 2 Ibid. 
 
 « Alexander r. Alexander, 2 Ves. 643; Att. Gen. r. Scott, 1 Yes. 413; 
 Wilson I'. Dennison, Arab. 82 ; 7 Bro. P. C. 296; Bradford v. Belfield, 2 
 Sim. 264; Hitch v. Leworthy, 2 Hare, 200; Doe v. Robinson, 24 Miss. 
 688; Singleton v. Scott, 11 Iowa, 589; Pearson v. Jamison, 3 McLean, 09, 
 197. 
 
 * Crewe v. Dicken, 4 Yes. 97. 
 
 (a) A power of appointment can- Lindley (N. J. Eq.). 30 Atl. Rep. 
 
 not be delegated. Hood r. Haden, 1063; 54 N. J. Eq. 418; Bradford 
 
 82 Ya. 588; snpra, § 287. Discre- v. Monks, 132 Mass. 405; Sinilh v. 
 
 tionary powers can be delegated Swan, 2 Tex. Civ. App. 503 : Wliit- 
 
 only as to details not requiring the lock r. Washburn, 62 Hun. 309; 
 
 exercise of discretion. Keim i'. Wilson r. Mason, 158 III. 304, 313. 
 VOL. I. — 37 577
 
 § 411.] GENEEAL DUTIES OF TKUSTEES. [CIIAP. XIV. 
 
 object was left by tbe testator to the discretion of all the 
 executors. " ^ 
 
 § 409. But it must be observed that the appointment of an 
 attorney, i)roxy, or agent is not necessarily a delegation of 
 the trust. The trustee must act at times through attorneys 
 or agents, and if he determines in his own mind how to exer- 
 cise the discretion, and appoints agents or instruments to 
 carry out his determination, he cannot be said to delegate 
 the trust, even though deeds or other instruments are signed 
 by attorneys in his name, (a) So, if he gives instructions to 
 his attorneys and agents how to act, it cannot be said to be 
 a delegation of the trust. ^ 
 
 § 410. It has been before stated that a sale or devise of 
 the trust estate by the trustee will not be a delegation or 
 communication of a discretionary trust to the vendee or 
 devisee, unless the original instrument of trust contem- 
 plated and authorized such an act by vesting the trust or 
 power annexed to the estate in the trustee and his assigns 
 or devisees.^ 
 
 § 411. Where a settlor vests his property in several co- 
 trustees, they all form, as it were, one collective trustee ; there- 
 fore they must perform their duties in their joint capacity,* 
 
 1 Att. Gen. v. G\eg, 1 Atk. 356 ; ante, § 287. 
 
 2 Att. Gen. v. Scott, 1 Ves. 413; Ex parte Rigby, 19 Yes. 463; Ord 
 r. Noel, 5 Madd. 498 ; Sinclair v. Jackson, 8 Cow. 582 ; Ilawley v. James, 
 5 Paige, 487; Newton v. Bronson, 3 Kern. 587; Blight w. Schenck, lOBarr, 
 285; Ex parte Belchier, Amb. 219; Bacon v. Bacon, 5 Ves. 335; Clough 
 r. Bond, 3 Myl. & Cr. 497 ; Lewis v. Reed, 11 Ind. 239 ; Mason v. Wait, 
 4 Scam. 132; Powell v. Tuttle, 3 Comst. 396; Bales v. Perry, 51 Mo. 449. 
 
 3 Ante, § 340; Saunders v. Webber, 39 Cal. 287. 
 
 * Smith V. Wildman, 37 Conn. 384; White v. Watkins, 23 Mo. 423 ; 
 Ex parte Griffin, 5 G. & J. 116 ; Shook v. Shook, 19 Barb. 653 ; De Peys- 
 ter V. Ferrers, 11 Paige, 13; Franklin v. Osgood, 14 Johns. 560; Cox i-. 
 
 (a) A trustee may employ brok- of business. Speight v. Gaunt, 9 
 ers and agents in cases where they A. C. 1 ; 22 Ch. D. 727. 
 are employed in the ordinary course 
 
 578
 
 CHAP. XIV.] CANNOT DF:LEGATK THE TRUST. [§ 412. 
 
 even in making a purchase.* In law there is no such 
 person known as an acting trustee apart from his cotrustees. 
 All who accept the office are acting trustees. If any one 
 trustee who has accepted, refu.ses to join in the projjosed act, 
 or is incapable, the others cannot proceed without him, but 
 an application must be made to the court.2(a) So, if trus- 
 tees bring suits, or defend suits in court, thcv must act 
 jointly, {h) and they should all employ the same counsel. If 
 they sever in their defence and incur extra costs, they might 
 be compelled to bear them personally. 
 
 § 412. A receipt for mone}^ in the absence of special 
 directions in the instrument of trust, must be signed by all 
 
 Walker, 26 Maine, 501 ; Hill v. Josselyn, 13 Sin. & M. 597 ; Crewe v. Dicken, 
 4 Ves. 97; Fellows v. Mitchell, 1 P. Wms. 83 ; 2 Vern. 516; Churchill v. 
 Ilobson, id. 241 ; Chambers v. Minchin, 7 Ves. 198; Leigh c. Barry, 3 
 Atk. 584; Belchier r. Parsons, Amb. 219; Ex parte Rigby. 19 Ves. 463 ; 
 Webb V. Ledsain, 1 K. & J. 385 ; Latrobe r. Tiernau, 2 Md. Ch. 480 ; 
 Vandever's App., 8 Watts & S. 405; Sinclair c. Jackson, 8 Cow. 544; 
 Ridgeley v. Johnson, 11 Barb. 527; Austin r. Shaw, 10 Allen, 552; King 
 r. Stone, 6 Johns. Ch. 323 ; Powell v. Tuttle, 3 Comst. 396 ; Sherwood v. 
 Read, 7 Hill. 431. 
 
 1 Holcomb V. Hnlcomb, 3 Stockt. 281. 
 
 2 Smith V. Wildman, 37 Conn. 3S4 ; Doyley v. Sherratt, 2 Eq. Cas. Ab. 
 742; Re Cong. Church v. Smithwick, 1 W. N. 196 ; Scruggs i-. Driver, 31 
 Ala. 274 ; Matter of Wadsworth, 2 Barb. Ch. 381 ; Matter of Mechanics' 
 Bank, id. 446 ; Burrill v. Shell, 2 Barb. 457 ; Wood i'. Wood, 5 Paige, 596; 
 Davis r. McNeil, 1 Ired. Eq. 344 ; Matter of Van Wyke, 1 Barb. Ch. 565; 
 Guyton v. Shane, 7 Dana, 498 ; Ridgeley i-. Johnson, 11 Barb. 527 ; Ex 
 parte Belchier, Amb. 219. 
 
 (n) See Allen's Appeal, 69 Conn, ent persons, they should all join in 
 
 702; Wheeler's .\ppeal, 70 Conn, selling. Poole »'. Anderson, ^0 Md. 
 
 511 ; Tarlton r. Gilsey (N. J. f^q.), 454. If several executors have as 
 
 37 Atl. 467; Pladley v. Hadley, 147 such a joint power to sell, and one 
 
 Ind. 423 ; Duckworth v. Ocean S. of them is disqualified, the others 
 
 Co., 98 Ga. 193; Hunter r. Anderson, may act in the matter. Lippincott 
 
 152Penn. St. 386; 1 Ames on Trusts r. WikofF. .i4 N. J. Eq. 107. See 
 
 (2d eil.), 512, n. When a will de- Carr r. Hertz, id. 127. 700. 
 vises property, with power of sale, to {h) Mc(ieorge v. Bigstone Gap 
 
 executors or trustees who are differ- Imp. Co , 88 F. R. 599. 
 
 579
 
 § 412.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 the trustees, or it will be invalid.^ Where the trustees are 
 numerous, the court generally inserts an order that moneys 
 may be paid to two or more.'"^ This rule is, however, relaxed 
 in the United States ; and it has been held that payment of a 
 mortgage to one of two trustees is a valid payment.^ So all 
 the trustees must join in proving a debt against a bankrupt;* 
 but, under special circumstances, the court may order the 
 proof to be made by one or more, even when payment must 
 be made to all the trustees.^ A different rule prevails in 
 regard to bank stocks, for the bank recognizes only the legal 
 title, and at law one joint-tenant may receive moneys ; so 
 one trustee may receive dividends upon public stocks,^ or the 
 rents of real estate, unless the tenant has had notice not to 
 pay to one;'' but all the trustees must join in conveying such 
 stocks or in executing a conveyance of land,^ or pledging the 
 trust property.^ A deed of land executed by one trustee does 
 not convey his share, as in the case of ordinary joint-tenants.^® 
 Where a deed was executed by two of three trustees, the bur- 
 den was put upon the purchaser to prove that the other trus- 
 tee was dead.^^ It has been said, however, that in a case of 
 necessity, and after considerable time, the concurrence of 
 a cotrustee may be presumed in some transactions.^^ A 
 banker may require checks to be signed by one only, or by 
 
 1 Walker v. Symonds, 3 Swanst. 63 ; Hall v. Fianck, 11 Beav. 519. 
 
 2 Att. Gen. v. Brickdale, 8 Beav. 228. 
 8 Bowers v. Seeger, 8 Watts & S. 222. 
 
 < Ex parte Smith, 1 Dea. 191; M. & A. 506 ; Ex parte Phillips, 2 Dea. 
 334. 
 
 6 Ibid. 
 
 « Williams v. Nixon, 2 Beav. 472. 
 
 ■^ Williams v. Nixon, 2 Beav. 472; Townley v. Sherborne, Bridg. 35; 
 Gouldsworth v. Knight, 11 M. & W. 337; Husband v. Davis, 1 C. B. 645. 
 See Webb i: Ledsam, 1 K. & J. 385 ; Mendes v. Guedalla, 2 John. & H. 
 259. 
 
 8 Ibid. ; Morville v. Fowle, 144 Mass. 109, 113. 
 
 9 Ham V. Ham, 58 N. H. 70. 
 
 10 Sinclair v. Jackson, 8 Cow. 543. 
 
 " Ridgeley v. Johnson, 11 Barb. 527 ; Learned v. Welton, 40 Cal. 339 ; 
 Burngarner v. Coggswell, 49 Mo. 259. 
 12 Vandever's App., 8 Watts & S. 405. 
 580
 
 CHAP. XIV.] THE TRUST A JOINT OFFICE. [§ 413. 
 
 all the trustees. But if trustees place mouey at a banker's 
 in such manner that one of their numV>er can withdraw it in 
 his sole name, all the trustees will be liable in case of a loss 
 under such an arrangement.^ 
 
 § 413. In the case of a public trust, where there are 
 several trustees, the act of the majority is held to be the act 
 of the whole number ;2 but tlio act of the majority must be 
 strictly within the sphere of their power and duty.^ When a 
 special power is given to trustees, it cannot be exercised by 
 a majority only: all must join.* If a settlement declares, 
 that, on the death or resignation of a trustee, the surviving 
 trustees shall appoint his successor, all the surviving trustees 
 must join in the appointment.^ Where the trustees are 
 numerous, as in the case of a charity, the court may direct 
 that a majority shall form a quorum. Private trusts, where 
 the rule prevails that all must join, cannot be aftected by 
 these principles, or by any agreements that may be made by 
 the parties.^ But an instrument of trust may contain express 
 directions that the trust shall be administered according to 
 the will of the majority of the trustees, in which case the 
 minority will be compelled to give effect to the determina- 
 tions of the majority.'^ So if the power is given to either of 
 two trustees.* So trustees are bound to concur in every 
 merely ministerial act necessary for the execution of the 
 trust ; and if they refuse, they may be compelled by order of 
 the court. But where it is a mere matter of personal discre- 
 
 1 Townley v. Sherborne, Bridg. 35. 
 
 2 Wilkinson v. Malin, 2 Tyr. 544 ; Perry v. Shipway, 1 Gif. 1 ; 4 De G. 
 & J. 353 ; Att. Gen. v. Shearman, 2 Beav. 104 ; Att. Gen. v. Cuming, 2 
 Y. & C. Ch. 139 ; Younger v. VVelham, 3 Swanst. ISO ; Att. Gen. v. Scott, 
 1 Yes. 413; Wilson r. Dennison, Amb. 82. 
 
 8 Ward v. Ilipwell, 3 Gif. 547; Sloo r. Law, 3 Blatch. 60, 459. 
 * lie Cong. Church v. Smithwick, 1 W. N. 19G. 
 6 Ibid. 
 
 « Swale V. Swale, 22 Beav. 585; State v. Lord, 31 L. J. Ch. 301. 
 'Att. Gen. v. Cuming, 2 Y. & C. Ch. 139; Taylor v. Dickinson, 15 
 Iowa, 483. 
 
 8 Taylor v. Dickinson, 15 Iowa, 486. 
 
 581
 
 § 414.] GENEKAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 tion, the court cannot interfere, unless a cotrustee refuses to 
 act from a corrui)t or selfish motive.^ But a majority of 
 trustees cannot deprive one of their number of his right and 
 interest in the trust property. ^ 
 
 § 414. A bare authority^ committed to several persons, 
 ceases upon the death of one ; but if the authority is coupled 
 with an interest, it passes to the survivors.^ (a) The com- 
 mittee of a lunatic's estate are mere protectors without any 
 interest, and the death of one extinguishes the office.^ An 
 executorship survives, for the joint executors have an interest 
 in the estate.^ So testamentary guardianship survives, as 
 such guardians have an authority over the estate.^ So co- 
 trustees have an authority coupled with an interest in the 
 legal title of the estate, and the office is impressed with the 
 quality of survivorship.'^ If land is given to two trustees in 
 trust to sell, and one dies, the other may sell, as he holds 
 the legal title in the land, and the office of trustee.^ Other- 
 
 1 Clarke v. Parker, 19 Ves. 1 ; Tomlin v. Hatfield, 12 Sim. 167; Goulds- 
 worth V. Knight, 11 M. & W. 337; Burrill v. Shell, 2 Barb. 457 ; Matter of 
 Mechanics' Bank, id. 446. 
 
 2 Meth. Ep. Church v. Stewart, 27 Barb. 553. 
 
 3 Co. Litt. 113 a; Eyre v. Shaftsbury, 2 P. Wms. 108, 121, 124; Att. 
 Gen. r. Gleg, 1 Atk. 356; Amb. 584; Mansell v. Vaughn, Wilm. 49; 
 Butler V. Bray, Dyer, 189 b; Peyton v. Bury, 2 P. Wms. 628. See § 286. 
 
 * Ex parte Lyne, t. Talb. 143. 
 
 6 Adams v. Buckland, 2 Vern. 514; Hudson c. Hudson, t. Talb. 129. 
 
 * Eyre v. Shaftsbury, 2 P. Wms. 102. But if joint guardians are ap- 
 pointed by the court, the death of one destroys the guardianship. Brad- 
 shaw V. Bradsliaw, 1 Russ. 528; Hall u. Jones, 2 Sim. 41. 
 
 ^ Hudson V. Hudson, t. Talb. 129; Co. Litt. 113 a; Att. Gen. w. 
 Gleg, Amb. 585; Billingsley v. Mathew, Toth. 168; Gwilliams v. Rowell, 
 Hard. 204; Stewart v. Peters, 10 Mo. 755; Butler v. Bray, Dyer, 189 b; 
 Dominick v. Sayre, 3 Sandf. 555 ; Belmont v. O'Brien, 2 Kern. 394 ; De 
 Peyster w. Ferrers, 11 Paige, 13; Moses v. Murgatroyd, 1 Johns. Ch. 119; 
 Shook V. Shook, 19 Barb. 653; Gregg v. Currier, 36 X. H. 200; Powell 
 V. Knox, 16 Ala. 364 ; Parsons v. Boyd, 20 Ala. 112; Leggett v. Hunter, 
 19 N. Y. 445; Aubuchon v. Lory, 23 Mo. 99; Barton v. Tunnell, 5 Harr. 
 182 ; Smith v. McConnell, 17 111. 135 ; Hopper o. Adee, 3 Duer, 235 ; Brit- 
 ton V. Lewis, 8 Rich. Eq. 271. 
 
 8 Warburton v. Sandys, 14 Sim. 622 ; Watson v. Pearson, 2 Exch. 594; 
 (a) See supra, § 248, n. (a). 
 
 . 582
 
 CHAP. XIV.] SURVIVOKSIIIP OF THK TRUST. [§ 415. 
 
 wise, the procnution taken by a settlor to guard his estate, 
 by increasing the number of trustees, would be futile; for 
 the death of one of them might result in defeating his whole 
 trust. Where the trust was to raise £2000 out of the testa- 
 tor's estate, by sale or otherwise at the discretion of the 
 trustees, who should invest the same in their own names 
 upon trust, one of the trustees died and the other sold; and 
 yice-Chancellor Wood held that the survivor could make a 
 good title. He said: "I find a clear estate in the vendor, 
 and a clear duty to ])erform. Is it to be said that the sale is 
 a breach of trust, because the cotrustee is dead? If I were 
 to lay down such a rule, it would come to this, that when an 
 estate is vested in two or more trustees, to raise a sum by 
 sale or mortgage, you must come into this court on the death 
 of one of the trustees." ^ The survivorship of the trust will 
 not be defeated, because the settlement contains a power for 
 restoring the original number of trustees by new appoint- 
 ments,2 unless there is something in the instrument that 
 specially manifests such an intention.^ Where an act of 
 Parliament declared that '"survivors should, and they were 
 thereby required " to appoint new trustees, the court expressed 
 an opinion that the clause was not imperative, but simply 
 directory.* 
 
 § 415. The general rule is, that one trustee shall not be 
 responsible or liable for the acts or defaults of his cotrustee. 
 This rule was established in the time of Charles the First, 
 after very great consideration and consultation by the judges 
 in the case of Townley v. Sherborne,^ wherein it was resolved 
 
 Att. Gen. v. Litchfield, 5 Ves. 825; Att. Gen. r. Cuming, 2 Y. & C. Ch. 
 139; Slater v. Wheeler, 9 Sim. 156. 
 
 1 Lane v. Debenham, 11 Hare, 188; Hind v. Poole, 1 K. & J. 383. 
 
 2 Doe V. Godwin, 1 D. & R. 250; Att. Gen. v. Cuming, 2 Y. & C. Ch. 
 139; Jacob v. Lucas, 1 Beav. 436; Warburton v. Sandy.s, 14 Sim. 622; 
 Hall V. Dewes, Jac. 193; Att. Gen. v. Floyer, 2 Vern. 748; Townseud v. 
 W'lhnn, 1 B. & A. 608. 
 
 « Foley I'. "Wontner, 2 J. & W. 245; Jacob v. Lucas. 1 Bi-av. 436. 
 * Doe r. Godwin, 1 D. & K. 250. And see Att. Gen. v. Locke, 3 Atk. 
 166; Stamper v. Millar, id. 212; Rex v. Flockwood, 2 Chit. 2.52. 
 
 6 Townley v. Slieiborne, Bridg. 35; 3 Lead. Cas. Eq. 718, and notes; 
 
 583
 
 § 415.] GENERAL DUTIES OF TRUSTEES [CIIAP. XIV. 
 
 "that where lands or leases were conveyed to two or more 
 upon trust, and one of them receives all or the most part of 
 the profits, and after dyeth or decayeth in his estate, his 
 cotrustee shall not be charged or be compelled in chancery 
 to answer for the receipts of hira so dying or decayed, unless 
 some ])racticG, fraud, or evil dealing appear to have been in 
 them to prejudice the trust; for they hein(j hy laiv joint- 
 tenants, or tenants in common, every one by law may receive 
 either all or as much of the profits as he can come by ; it is 
 no breach of trust to permit one of the trustees to receive all 
 or the most part of the profits; it falling out many times 
 that some of the trustees live far from the lands, and are put 
 in trust out of other respects than to be troubled with the 
 receipt of the profits, (a) But his lordship and the said 
 judges did resolve, that if, upon the proofs or circumstances, 
 the court should be satisfied that there had been any dolus 
 mains, or any evil practice, fraud, or ill intent in hira that 
 permitted his companion to receive the whole profits, he 
 should be charged though he received nothing." And the 
 same doctrine has been acted upon from that day to this.^ 
 Connivance, co-operation, permission, acquiescence, or par- 
 ticipation will bring liability ;2 and ignorance of the default 
 of a cotrustee if it results from neglect is no excuse, as 
 
 Bowers i;. Seeger, 8 Watts & S. 222; Sinclair y. Jackson, 8 Cow. 543; 
 Vandever's App., 8 Watts & S. 405. And see Leigh v. Barry, 3 Atk. 
 584 ; Anon. 12 Mod. 560 ; Taylor v. Benham, 5 How. 233 ; Ochiltree v. 
 Wright, 1 Dev. & B. Eq. 336; Ray v. Doughty, 4 Blackf. 115; Jones's 
 App., 8 Watts & S. 143 ; Peters v. Beverly, 10 Peters, 532 ; 1 How. 134; 
 Taylor y. Roberts, 3 Ala. 86; State v. Guilford, 18 Ohio, 509; Latrobe v. 
 Tiernan, 2 Md. Ch. 480; Worth v. McAden, Dev. &B. Eq. 109; Boyd 
 V. Boyd, 3 Grat. 114; Glenn v. McKim, 3 Gill, 366 ; Stell's App., 10 Penn. 
 St. 149; Banks v. Wilkes, 3 Sandf. Ch. 99. And see Royall v. McKenzie, 
 25 Ala. 363. 
 
 1 Ibid. 
 
 2 Ilinson v. Williamson, 74 Ala. 180; Knight i\ Haynie, id. 542. 
 
 (a) SeeBrueniJ. Gillet, 115N. Y. 883; Darnaby v. Watts (Ky.), 21 
 
 10; Re Blauvelt, 131 N. Y. 249; S. W. 333; Litzenberger's Estate, 
 
 Purdy V. Lynch, 145 N. Y. 462; 33 N. Y. S. 155; Cozzpns' Estate, 
 
 Fesmire's Estate, 134 Penn. St. 67; 15 id. 771 ; Dyer v. Riley, 51 N. J. 
 
 Barroll v. Foreman (Md.), 40 Atl. Eq. 124. 
 584
 
 CHAP. XIV.] WHKN LIAI5LE FOR COTRUSTEES. [§ 416. 
 
 where one trustee collects a fund and keeps it without rein- 
 vestment, the other trustees may be liable.^ 
 
 § 41(>. In tlic same case of Townley v. Sherborne, it was 
 determined that if the trustees joined in signing a receipt 
 for money, they should each be responsible for it.^ But 
 where the administration of a trust is vested in several trus- 
 tees, they must all join in signing a receipt for the prineij)al 
 or capital sum of the trust fund, and it is now established 
 that a trustee who joins in the receipt for conformity, but 
 without receiving any of the money, shall not be answerable 
 for the misapplication of the money by his cotrustee who 
 receives it; as it would be tyranny to punish a trustee for 
 an act which the nature of his office compelled him to do.^ 
 But in such case the burden is on the trustee to prove that 
 his acknowledgment of the receipt of the money was merely 
 for conformity, and that in fact he received none of the 
 money, and that his cotrustee I'cceivcd it all.^ If there is 
 
 1 Richards v. Seal, 2 Del. Ch. 2G6. 
 
 ^ Townley v. Sherborne, Bridg. 3.); Spalding v. Shalmer, 1 Vern. 303; 
 Sadler v. Hobbs, 2 Bro. Ch. 114; Bradwell v. Catchpole, cited 3 Swanst. 
 78, note (a) ; Fellowes r. Mitchell, 2 Vern. 516. 
 
 8 7/1 re Freyer, 3 K. & J. 317; Brice v. Stokes, 11 Yes. 324; 3 Lead. 
 Cas. Eq. 730; Harden r. Parsons, 1 Eden, 147; "Westley v. Clarke, id. 
 359; Ileaton r. Marriott, cited Vx. Ch. 173 ; iJx/iar^e Belch ier, Anib. 219; 
 Leigh V. Barry, 3 Atk. 584 ; Fellowes v. Mitchell, 1 P. Wms. 81 ; Gregory 
 r. Gregory, 2Y. & C. 316 ; Sadler v. Ilobbs, 2 Bro. Ch. 117; Chambers 
 r. ^Minchin, 7 Vos. 198; Shipbrook v. Ilinchinbrook, 16 Yes. 479 ; Harrison 
 V. Graham, 3 Hill's MS. 239, cited 1 P. Wms. 241 ; Carsey v. Barshara, 
 cited 1 Sell. & Lef. 314; Anon. ]\Iose. 35 ; Ex parte Wackerbatli,2 G. & J. 
 151; Kip V. Deniston, 4 Johns. 23; Jones's App., 8 Watts & S. 147; 
 Irwin's App., 35 Penn. St. 204; Sterrett's App., 2 Penn. 419; Wallis r. 
 Thornton, 2 Brock. 434 ; Monell v. Mouell, 5 Johns. Ch. 283 ; Deaderick 
 V. Cantrell, 10 Yerg. 264; Aplyn r. Brewer, Pr. Ch. 172; Chmchill r. 
 Ilodson, 1 r. Wms. 211 ; Att. Gen. v. Randc'11,7 Bacon, Ab. 184; Murrell 
 V. Cox, 2 Yern. 173; Terrell r. ISIathews, 11 L. J. (n. s.) Ch. 31 ; Mc- 
 Murray v. ^Montgomery, 2 Swanst. 374 ; Griffin r. Macaulay, 7 Grat. 476; 
 Worth V. IMcAden, 1 Dev. & B. Eq. 199; Stowe v. Bowen, 99 Mass. 194. 
 
 * Brice v. Stokes, 1 1 Yes. 324 ; Scurfield v. Howes, 3 Bro. Ch. 95, note 
 (S) ; Chanibers r. Minchin, 7 Yes. 186; Monell v. :\Ionell, 5 Johns. Ch. 
 394; Hall r. Carter, 8 Ga. 388; Mauahau v. Gibbous, 19 Johns. 427; 
 
 585
 
 § 417.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 no evidence upon this })oint, all the trustees who join in 
 signing the receipt will be held responsible in solido, on the 
 ground that the acknowledgment in the receipt is prima facie 
 evidence of the facts stated.^ At law the receipt is conclu- 
 sive evidence and estops the trustee from denying that he 
 received any of the money ;2 but a court of equity rejects 
 estoppels, and pursues the actual truth, and will determine 
 and decree according to the verity and justice of the fact.^ 
 But if a trustee, signing a receipt, receives any part of the 
 money, and it does not appear how much, he will be answer- 
 able for the whole ; as, where he mixes his corn with an- 
 other's heap, he must lose the whole.* 
 
 § 417. It was said in Townley v. Sherborne,^ that individ- 
 uals are sometimes joined in a trust, where it is not expected 
 that they are to take an active part in its management ; and 
 it is well settled that each of several trustees is not bound to 
 take upon himself the active management of every part of a 
 trust ; and it seems that the management of the whole may 
 be left to any one of the number.^ So trustees may appor- 
 tion their duties among themselves, as where one of two 
 guardians accepted the trust, saying he would take care of the 
 real estate, but would have nothing to do with receiving and 
 disbursing money, which duties the other guardian assumed, 
 it was held that the former was not answerable for the de- 
 faults of the latter.'' It sometimes happens that the conven- 
 
 Martindale v. Picquot, 3 K. & J. 317 ; Cottam v. Eastern Counties Ry. 
 Co., 1 John. & H. 243. 
 
 1 Ibid.; Westley I'. Clarke, 1 Eden, 3.59; Maccubbin v. Cromwell, 7 
 G. & J. 157 ; Hengst's App., 21 Penn. St. 413. The answer of tlie trustee 
 in chancery would not be sufficient evidence unless responsive to the bill. 
 Monell V. Monell, 5 Johns. Ch. 283; Maccubbin v. Cromwell, 7 Gl. & J. 
 157. But as parties are now witnesses, the rule is not very important. 
 
 2 Harden v. Parsons, 1 P^den, 147. 
 
 8 Ibid. ; Fellowes v. [Mitchell, 1 P. Wms. 83. 
 
 4 Ibid. 5 Bridg. 35. 
 
 6 Ray I'. Doughty, 4 Rlackf. 115; Ochiltree v. Wright, 1 Dev. & B. 
 Eq. 336 ; State v. Guilford, 18 Ohio, 500. 
 
 ■^ Jones's App., 8 Walts & S. 143. But see Gill v. Att. Gen., Hardr. 
 314. 
 
 586
 
 CHAP. XIV.] WHEN LIAIJLE FOK COTKU.STEES. [§ -417. 
 
 ience or ncccssitius of business rcciiiire the trust funds to be 
 in the hands of one trustee. If a loss happens from tlie de- 
 fault of such trustee, tlie others will not be huld to answer. 
 As where a bond is to be collected by one trustee, or money 
 is put in the hands of one to be jtaid away; or where a fund 
 was given to three trustees, one in London and two in Corn- 
 wall, to build an almshouse in London, it was held that the 
 fund was ])ropei-ly in the hands of the trustee in London, and 
 that during the construction of the almshouse the others 
 were not answerable for the loss of part of it by his insol- 
 vency.^ The same rule applies where the shai-es of a c<jm- 
 pany are required to be in the name of a single individual ;2 
 and so where the settlor appoints one of the trustees to per- 
 form certain acts, or make certain sales, or receive certain 
 moneys.^ But if trustees expressly agree to be answeral)le 
 for each other, courts will hold them to their agreement.* 
 So this powder to apportion the duties of the trust, or the 
 rule that a trustee not receiving the money shall not be liable 
 for the defaults of his cotrustees, docs not excuse him for 
 not exercising a general superintendence and care over the 
 trust, or for not intervening, if the fact come to his knowl- 
 edge that the fund is unsafe, or that it ought not longer to 
 remain under the control of the other trustee.^ Even a direct 
 provision in the deed of settlement, that trustees shall not be 
 liable for the defaults of their cotrustees, does not excuse 
 them from this general care and superintendence, and from 
 the duty of intervening, if they hear any fact tending to call 
 
 1 Att. Gen. v. Randell, 2 Eq. Cas. Ab. 742; 7 Bacon, Ab. 181; Clough 
 V. Bond, 3 M. & Cr. 497; Towiiley v. Sherborne, Bridg. 3."); 3 Lead. Cas. 
 Eq. 718, notes; Ex parte Criffiii, 2 G.& J. Ill ; Bacon v. Bacon, 5 Ves. 
 331; Hovey v. Blakeniun, 4 id. 596; Williams v. ^'ixon, 2 Beav. 472; 
 Curtis V. Mason, 12 L. J. (x. 8.) Ch. 442 ; Broadhurst v. Balguy, 1 N. C. 
 C. 28 ; Hanbury v. Kirkland, 3 Siui. 26"). But see Cowell v. Gatchcombe, 
 27 Beav. 5G8. 
 
 ^ Consterdine v. Consterdine, 31 Beav. 3^1. 
 
 8 Davis V. Spurling, 1 K. & M. (M ; Paddon v. Ricbardson, 7 De G., ]\I. 
 & G. 563; Birls v. Betty, 6 Madd. 90. 
 
 * Leigh ('. Barry, 3 Atk. 583; Brazer v. Clark, 5 Pick. 96 ; Towne r. 
 Animidown, 2 Pick. 535. 
 
 5 Claik V. Clark, 8 Paige, 153 ; Evans's Est, 2 Ash. 470. 
 
 587
 
 § 418.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 for their intervention; nor will it justify them in paying 
 over the money to the sole credit of one trustee; and gener- 
 ally it will not authorize them to do any acts which would 
 be a breach of trust, if such clause was not in the deed or 
 will.i While one trustee is not liable for the defaults of 
 cotrustees which he has not the means of preventing or 
 guarding against, yet he must exercise due care in the ap- 
 proval of or acquiescence in the acts of his associates.^ If 
 the trustees join in accounting, and hold themselves out, in 
 joint accounts, as acting together and as jointly liable, they 
 will be estopped to deny their joint liability to those who 
 have acted on a knowledge of such accounts ; and this would 
 be almost conclusive evidence of a joint liability in all cases. ^ 
 So, if the will makes them all liable for the acts of each, or 
 contemplates the joint action and joint liability of all, they 
 cannot excuse themselves if they accept the trust.* 
 
 § 418. Though a trustee may join in a receipt without 
 receiving any of the money, and may not be liable or answer- 
 able for it, yet he may be responsible for the whole, though 
 he receives none; thus, if knowing that his cotrustee has 
 no character or credit, and is unfit to manage the trust funds, 
 
 1 Mucklow V. Fuller, Jac. 198 ; Williams v. Nixon, 2 Beav. 472 ; Leigh 
 V. Barry, 3 Atk. 584; Dawson v. Clark, 18 Ves. 254; Underwood v. 
 Stevens, 1 Mer. 712; Hanbury v. Kirkland, 3 Sim. 265; Langston v. Oli- 
 vant, Coop. 33 ; Brumridge v. Brumridge, 27 Beav. 5 ; Rehden v. Wesley, 
 29 id. 213; Drosier v. Brereton, 15 id. 221 ; Fenwick v. Greenwell, 10 id. 
 418; Pride v. Fooks, 2 id. 430; Sadler v. Hobbs, 2 Bro. Ch. 114; Bone 
 V. Cook, McClel. 168; 13 Price, 332; Clough v. Dixon, 8 Sim. 594; 3 M. 
 & Cr. 490; Dix v. Burford, 19 Beav. 409 ; Litchfield v. White, 3 Selden, 
 438; Wilkins v. Hogg, 3 Gif. 116; 10 W. R. 47; Worral v. Harford, 8 
 Ves. 8; Moyle v. Movie, 2 R. & M. 170; Munch v. Cockerell, 9 Sim. 339; 
 5 M. & Cr. 178 ; ]\Iacdonnel v. Harding, 7 Sim. 176. But a testator can 
 draw the indemnity clause so broad that cotrustees will not be liable even 
 for gross negligence. Wilkins v. Hogg, 3 Gif. 116; 10 W. R. 47. 
 
 2 Earle v. Earle, 93 N. Y. 104. 
 
 8 Hengst's App., 24 Penn. St. 413; Clark's App., 18 id. 175; Duncom- 
 mun's App., 17 id. 268. 
 
 * Burrill v. Sheil, 2 Barb. 457; Contee r. Dawson, 2 Bland, 264; Wood 
 V. Wood, 5 Paige, 590 ; Weigand's App., 28 Penn. St. 471. 
 
 588
 
 CHAP. XIV.] WIIKX LIABLE FOR COTRUSTEES. [§ 418. 
 
 he suffers the money to be received by hitn, or to remain in 
 his hands, he will be answerable, as if he receives it him- 
 self, on the ground that he lias committed a breach of trust 
 in not using due care and diligence;^ and the same rule will 
 apply if he sulTcrs the money to remain in the hands of his 
 cotiustee, however competent and responsible, longer than 
 is necessary. 2 It is also the duty of the trustee to ascertain 
 the actual facts, and not rely up(jn tlic bare assertion of his 
 cotrustee, in relation to the condition of the trust fund.^ 
 Thus, where two trustees allowed their cotrustee to open a 
 box at their banker's in which were stocks and bonds, and 
 he converted some of the trust property to his own use, but 
 assured his cotrustees that all was right, they were held to 
 answer for the loss, because they had not taken the pains to 
 ascertain the facts, but had relied upon the assertion of their 
 cotrustee.* So trustees must ascertain the condition of the 
 funds at all times within which a reasonable man should 
 ascertain the condition of his own property ; as where a mort- 
 gage to three trustees had been paid off, and the money came 
 to the hands of one, and was invested in bills ami notes of 
 the East India Company payable in two years, and these were 
 paid into the hands of the same trustee to whom the mort- 
 gage had been paid, and the acting trustee asked to have the 
 money remain in his hands on a mortgage to be given ; and 
 it so remained for a year, no mortgage being executed, the 
 other trustees taking no active steps for several years to 
 know the actual condition of the trust fund; this was held to 
 
 1 Clark V. Clark, 8 Paige, 153; Wyman v. Jones, 4 Md. Ch. 500; 
 Elmendorf v. Lansing, 4 Jolins. Ch. .502; Rinc^g-old v. Kinggold, 1 II. & G. 
 11; State v. Guilford, 15 Ohio, 593; Pirn v. Downing, 11 Serg. & R. 71 ; 
 Evans's Est., 2 Ash. 470; Jones's App., 8 Watts & S. 147. But the cir- 
 cumstances must be such as ■would put a reasonable man upon his guard 
 in relation to his own property. Jones's App., 8 Watts & S. 147; Lin- 
 coln V. Wright, 4 Beav. 427; Lockwood v. Riley, 1 De G. & J. 401. 
 
 2 Brice r. Stokes, 11 Ves. 319 ; 7.V Freyer, 3 K. & J. 317: Gregory r. 
 Gregory, 2 Y. & C. 313; Bone i: Cook, McClel. 168; Thompson r. Finch, 
 22 Beav. 316; Lincoln v. Wright. 4 Beav. 427. 
 
 8 Thompson v. Finch, 22 Beav. 316; 8 De G., M. & G. 560; Ilanbury 
 V. Kirkland, 3 Sim. 265 ; Bates v. Underbill, 3 Redf. (N. Y.) 365. 
 * Mendes v. Guedalla. 2 John. & II. 259. 
 
 589
 
 § 419.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 be a breach of trust, and they were decreed to make good the 
 loss.^ A trustee is bound to inquire and ascertain for what 
 purpose a cotrustee desires the money ; what investments he 
 proposes to make, and what securities he proposes to take, 
 and he must take pains to see that the proposed investments 
 are actually madc.^ If a trustee performs his duty in these 
 respects, and his cotrustee, in spite of these precautions, 
 squanders or wastes the fund, he will not be answerable 
 therefor. So if the cotrustee gets possession of the trust 
 fund by a fraud or crime, the others will not be liable. ^ But 
 if a trustee receive any portion of the funds from a transac- 
 tion, he must personally see to the application of them : he 
 cannot pass them over to his cotrustee for investment or 
 distribution ; and if he do so, he will be personally responsi- 
 ble for the acts and defaults of such cotrustee.* 
 
 § 419. In the original case of Townley v. Sherborne, it 
 was determined that if there was any dolus malus, or any 
 evil practice, or fraud, or ill intent in him that permitted 
 his companion to receive the whole fund, he should be charged 
 that received nothing.^ Thus, if one trustee stands by and 
 sees his cotrustee misemploy or misapply the money ; ^ or 
 acquiesces in the wrongful use of the money by his co- 
 
 1 Walker v. Symonds, 3 Swanst. 1. See Thompsons. Finch, 22 Beav. 
 326. 
 
 2 Hanbury v. Kirkland, 3 Sim. 265 ; Broadhurst v. Balguy, 1 Y. & C. 
 Ch. 16 ; Thompson v. Finch, 22 Beav. 326. 
 
 3 Cottam V. Eastern Counties R. R. Co., 1 John. & H. 243 ; Mendes v. 
 Guedalla, 2 John. & II. 259 ; Barnard v. Bagshaw, 9 Jur. (n. s.) 220 ; 3 
 De G., J. & S. 355 ; Trutch v. Lamprell, 20 Beav. 116 ; Baynard v. Wool- 
 ley, id. 583 ; Griffiths v. Porter, 25 Beav. 236; Eager v. Barnes, 31 Beav. 
 579 ; Margetts v. Perks, 34 L. J. Ch. 109. 
 
 4 Sterrett's App., 2 Penn. 219; Clark's App., 18 Penn. St. 175; Xyce's 
 App., 5 Watts & S. 254; Commonwealth v. McAlister, 28 Penn. St. 480 ; 
 Deaderick v. Cantrell, 10 Yerg. 263; McMurray v. Montgomery, 2 Swanst. 
 374 ; Hughlett v. Hughlett, 5 Humph. 453 ; IMumford v. Murray, 6 Johns. 
 Ch. 1; Ray V. Doughty, 4 Blackf. 115; Worth v. McAden, 1 Dev. & B. 
 Eq. 199; Graham v. Davidson, 2 Dev. & B. Eq. 155; Sparhawk v. Buell, 
 9 Vt. 41 ; Edmonds v. Grenshaw, 14 Peters, 166. 
 
 6 Townley i\ Shei'borne, Bridg. 35; Mucklow v. Fuller, Jac. 198. 
 6 Williams v. Nixon, 2 Beav. 475. 
 590
 
 ClIAI'. XIV.] LIABILITY FOR COTRUSTKES, [§ 419. 
 
 trustee;^ or if a trustee acquiesees in his cotrustee's retain- 
 ing the money in his hands unnecessarily ;2 or if he connives 
 at a hreaeh of trust by his cotrustee;^ or conceals such 
 breach;* or makes any misrepresentation respecting the 
 investment of the fund;^ or if he does any act to put the 
 money out of his own control and into the sole power of his 
 cotrustee, as by joining in a conversion of the property and 
 allowing his cotrustee to receive and retain the proceeds ex- 
 clusively;*^ or if he makes over the trust fund exclusively to 
 his cotrustee;" or executes a power of attorney to him; ^ or 
 signs a draft or order, or assigns a mortgage, enabling his 
 cotrustee to deal with the investments exclusively;^ or if he 
 suffers the trust fund to be invested in the sole name of his 
 cotrustee ;^^ or to be paid into bank to his sole credit," — in 
 all these cases there is an actual or constructive breach of 
 trust, which renders all the trustees liable for any loss; and 
 
 1 Booth V. Booth, 1 Beav. 125 ; Dix v. Burford, 19 Beav. 409. 
 
 - Lincoln v. Wright, 4 Beav. 427; James v. Frearson, 1 N. C. C. 370; 
 Evans's Est., 2 Ash. 470 ; IMm v. Downing, 11 Serg. & R. 71 ; Stjles v. 
 Guy, 1 II. & Tw. 523 ; 1 Mac. & Gor. 422; IG Sim. 230 ; Scully v. Delany, 
 2 Ir. Eq. 105; Egbert v. Butter, 21 Beav. 500; West v. Jones, 1 Sim. 
 (n. s.) 205. 
 
 ' Boardman v. Mosman, 1 Bro. Ch. 68. 
 
 * Ibid. 
 
 6 Bates V. Scales, 12 Ves. 402. 
 
 * Sadler v. Hobbs, 2 Bro. Ch. 114 ; Chambers v. Minchin, 7 Ves. IDS; 
 Hanbury v. Kirkland, 3 Sim. 265 ; Clough v. Bond, 3 M. & Cr. 496; Scur- 
 field V. Howes, 3 Bro. Ch. 90; Shipbrook v. Hinchinbrook, 11 Ves. 252 ; 
 Brice v. Stokes, id. 319; Underwood v. Stevens, 1 Mer. 713; Bradwell v. 
 Catchpole, 3 Swanst. 78, n. ; Williams i'. Nixon, 2 Beav. 472; Broadhur.st 
 V. Balguy, 1 N. C. C. 16 ; Curtis v. Ma.son, 12 L. J. (x. s.) Ch. 443. 
 
 '' Keble r. Thompson, 3 Bro. Ch. Ill ; Langford v. Gascoyne, 11 Ves. 
 333; French v. Hobson, 9 Ves. 103 ; Joy v. Campbell, 1 Sch. & Lef. 341 ; 
 Moses V. Levi, 3 Y. & C. 359. 
 
 8 Harrison v. Graham, 1 P. Wms. 241, n. ; Hewett v. Foster, 6 Beav. 
 259 ; Monoll r. Monell, 5 Johns. Ch. 283 ; Pirn v. Downing, 11 Serg. & 
 R. 66; Duncommun's App., 17 Penn. St. 268. 
 
 9 Sadler V. Hobbs, 2 Bro. Ch. 114; Broadhurst r. Balgiiy, 1 Y. & C. 
 C. C. 16. 
 
 " Walker v. Symonds, 3 Swanst. 58. 
 " Clough V. Bond, 3 M. & Cr. 490. 
 
 591
 
 §419 a.] GENERAL DUTIES OF TRUSTEES. [CIIAP. XIV. 
 
 SO if a trustee does not collect a debt due to the estate from 
 his cotrustee.^ In all cases, if a trustee becomes aware of 
 any fact tending to show that his cotrustee is committing a 
 breach of trust, or if he learns any fact endangering the trust 
 fund, he must communicate it to his cotrustees or make 
 application to the court,^ and take active measures to protect 
 the fund, or he will be personally liable for its loss. If a 
 trustee himself receives the trust fund or part of it, and pays 
 it over to his cotrustee, who wastes it, he will be liable for 
 it;^ and so if he pei-mits his cotrustee to receive money, 
 having notice that it will be misapplied, or if he is guilty of 
 any negligence or want of reasonable care.* (a) 
 
 § 419 a. If the trust instrument gives the cestui a right to 
 appoint one to whom the trustee shall convey, this power 
 cannot be exercised by will, for the will takes effect only at 
 the death of the cestui^ and that very event terminates the 
 relation of trust between the trustee and cestui.^ This reas- 
 oning seems very flimsy, and likely to produce injustice if 
 applied to cases where the facts are different from those in 
 the above case, where the title was held to have passed by 
 the will itself, though not by the trustee's deed in pursuance 
 of the will. 
 
 1 Mucklow V. Fuller, Jack. 198 ; Candler v. Tillett, 22 Beav. 254. 
 
 2 Wayman v. Jones, 4 Md. Ch. 506 ; Chertsey v. Market, 6 Price, 279; 
 Powlet V. Herbert, 1 Ves. Jr. 297 ; Franco v. Franco, 3 Ves. 75 ; Walker 
 V. Symonds, 3 Swanst. 71 ; Brice v. Stokes, 11 Ves. 319 ; Olive v. Court, 
 8 Price, 166; Att. Gen. v. Holland, 2 Y. & C. 699; Booth v. Booth, 1 
 Beav. 125 ; Williams v. Nixon, 2 Beav. 472 ; Blackwood v. Burrows, 2 
 Conn. & Laws, 477 ; Holcomb v. Holcomb, 2 Beas. 413 ; Crane v. Hearn, 
 26 N. J. Eq. 378. 
 
 8 Mumford v. Murray, 6 Johns. Ch. 1 ; Monell v. Monell, 5 Johns. Ch. 
 283 ; Clark v. Clark, 8 Paige, 153 ; Ringgold v. Ringgold, 1 H. & G. 11 ; 
 Glenn v. McKim, 3 Gill, 366 ; Evans's Est., 2 Ash. 470 ; Graham v. Aus- 
 tin, 2 Grat. 273 ; Graham v. Davidson, 2 Dev. & B. Eq. 155. 
 
 * Schenck v. Schenck, 1 Green, Ch. 174. 
 
 6 Bradstreet v. Kinsella, 76 Mo. 63. 
 
 {a) When one of several trustees has notice, they are all notified. 
 Chapman v. Chapmanj 91 Va. 397. 
 592
 
 CIIAl". XIV.] LIABILITY FOR COTRUSTEES. [§ 420. 
 
 § 420. In a few cases, it has been held that, if trustees 
 join in executing a power of sale, and one receive the 
 money, all must be held answerable, if it is lost by the one 
 that receives it.' Tliese decisions have been founded \i\)(jn 
 the rule, that all the trustees who join in any transaction 
 must be responsible for carrying it through. But they ignore 
 the other rule, that a power must be strictly executed by all 
 the persons to whom it is given, and that if a trustee joins in 
 the power, and signs receijjts for conformity, but receives 
 none of the money, omits no duty, and does no act tending 
 to a lircach of the trust, he will not be held for a loss occa- 
 sioned by a breach of trust by the other trustees. The great 
 preponderance of authority is, that a sale under a power is 
 not different from the execution of a receipt for the trust 
 moneys.^ If, however, a proper investment of the money 
 received under a sale is once made, the liability of a non- 
 acting trustee ceases under all the cases. ^ If a trustee 
 renounces the trust, he, of course, cannot be liable for a 
 breach of the trust by the other trustees, unless the trust 
 fund is in some manner in his hands, and is misapplied by 
 him.* So the estate of a deceased trustee cannot be liable 
 for a breach of trust by a surviving trustee, after the decease 
 of a cotrustee.^ A distinction has been attempted between 
 discretionary trusts and directory trusts as follows: it has 
 been said, that, in discretionary trusts, that is, where the 
 funds may be invested or employed according to the discre- 
 
 1 Spencer v. Spencer, 11 Paige, 299 ; Ringgold v. Ringgold, 1 H. & G. 
 11; Maccubbin v. Cromwell, 7 G. & J. 157; Deaderiek r. Cantrell, 10 
 Yerg. 2G3 ; Wallace v. Thornton, 2 Brocken. 434 ; Ilauser v. Lehman, 2 
 Ired. Eq. 594. 
 
 2 See ante, § 416, note; Grifiin r. Macauley, 7 Grat. 476; Atcheson r. 
 Robertson, 3 Rich. Eq. 132 ; Kip v. Deniston, 14 Johns. 23 ; Jones's 
 App., 8 Watts & S. 147; Boyd v. Boyd, 3 Grat. 114. But if a trustee not 
 only join in the execution of the power, but in receiving the money, he 
 must keep it in the joint names of the trustees until invested ; and he 
 cannot pay it over to his cotrustee without being responsible for it if lost. 
 Ringgold V. Ringgold, 1 II. & G. 11 ; Glenn t-. McKim, 3 Gill, 366. 
 
 « Glenn v. JMcKini, 3 Gill, 366. 
 
 * Claggett V. Hall, 9 G. & J. 80. 
 
 6 Brazer r. Clark, 5 Pick. 96 ; Towne v. Aramidown, 20 Pick. 535. 
 
 VOL. I. — 38. 593
 
 § 421.] GEXEEAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 tion of the trustees, a non-acting trustee will not be respon- 
 sible for a misapplication of the fund by a cotrustee, unless 
 he is guilty of some fraud or negligence that amounts to a 
 breach of trust, upon the principles before stated;^ but 
 where a will is peremptory that certain investments shall be 
 made by the trustees, all the trustees will be liable if the 
 directions of the will are not carried out.^ But these direc- 
 tory trusts may be executed by a part of the trustees, and the 
 others may join for conformity^ without doing more than is 
 absolutely necessary to accomplish the trust, and therefore 
 these trusts fall within the rule, that a trustee who signs 
 receipts for conformity, and does no more, is not liable for a 
 breach of trust by his cotrustee.^ But if the will expressly 
 provide for the joint action and responsibility of the execu- 
 tors or trustees, it will be binding upon all those who assume 
 the trust, and render them all liable for any loss through 
 the default of one.* 
 
 § 420 a. "Where there are two trustees, and the manage- 
 ment of the trust is left to one, and the acting trustee com- 
 mits a breach of trust, the passive trustee is not entitled to 
 indemnity from the acting trustee, unless there are some 
 special circumstances, as where the acting trustee is solicitor 
 for the trust, or has derived a personal benefit from his breach 
 of trust. ^ 
 
 § 421. Following the rule as to cotrustees, executors are 
 generally liable only for their own acts, and not for the acts 
 of their coexecutors.^ But while cotrustees may not be 
 
 1 Deaderick v. Cantrell, 10 Yerg. 264 ; Thomas v. Scruggs, id. 400. 
 
 2 Ibid. 
 
 « Ante, § 416, note. 
 
 4 Weigand's App., 28 Penn. St. 471 ; Wood t-. Wood, 5 Paige, 596 ; 
 Contee v. Dawson, 2 Bland, 264; Burrill v. Shell, 2 Barb. 457. 
 
 6 Bahin i'. Hughes, 31 Ch. D. 390. 
 
 « Hargthorpe v. Milforth, Cro. Eliz. 318 ; Anon. Dyer, 210 a ; Went. 
 Ex. 306 ; Williams v. Nixon, 2 Beav. 472 ; Peters r. Beverly, 10 Peters, 
 532 ; 1 How. 134 ; Sutherland r. Brush, 7 Johns. Ch. 17 ; White v. Bul- 
 lock, 20 Barb. 91 ; Douglas v. Satterlee, 11 Johns. 16; Banks v. Wilkes, 3 
 594
 
 CHAP. XIV.] LIABILITY OF COEXECUTORS. [§ 421. 
 
 liable for money which they did not receive, although they 
 joined in the receipt, cocxecutors are always liable if they 
 join in the receipts, (a) The reason is this : trustees must 
 join in many acts, they having for the most part a joint 
 power, while executors have a several power, over the estate. 
 Each executor has an independent right over the personal 
 property of his testator: he may sell it, and receive the 
 purchase-money, and give receipts in his own name. If, 
 therefore, an executor joins his coexecutor in signing a 
 receipt, he does an unmeaning act, unless he intended to 
 render himself jointly answerable for the money; and so 
 the court hold, that if an executor joins in giving a receipt 
 for money he shall be answerable, whether he received any 
 of it or permitted his coexecutor to receive the whole. ^(?>) 
 So, if an executor joins in executing a power of sale, given 
 
 Sandf. Ch. 99 ; Moore v. Tandy, 3 Bibb, 97; Fennimore v. Fennimore, 2 
 Green, Ch. 292 ; Call v. Ewing, 1 Blackf. 301 ; Williams c. Maitland, 1 
 Ired. 92 ; Kerr v. Kirkpatrick, 8 Ired. Eq. 137 ; Clarke r. Blount, 2 Dev. 
 Ch. 51; Clarke v. Jenkins, 3 Rich. Eq. 318 ; Knox v. Pickett, 4 Des. 190 ; 
 Kerr i;. Water, 19 Ga. 136; Charlton /■. Durham, L. R. 4 Ch. 433 ; McKim 
 V. Aulbach, 130 Mass. 481. 
 
 ^ Aplyn V. Brewer, Pr. Ch. 173 ; Murrill v. Cox, 2 Vern. 560; Ex parte 
 Belchier, Arab. 219 ; Leigh v. Barry, 3 Atk. 584 ; Ilamson r. Graham, 1 
 P. Wms. 241, cited Darwell v. Darwell, 2 Eq. Cas. Ab. 456 ; Gregory c. 
 Gregory, 2 Y. & C. 316 ; Hall v. Carter, 8 Ga. 388 ; Monell v. Monell, 5 
 Johns. Ch. 283; Monahan v. Gibbons, 19 Johns. 427; Sterrett's App., 2 
 Penn. 219 ; Jones's App., 8 Watts & S. 143; Johnson v. Johnson, 2 Hill, 
 Eq. 290 ; Clarke v. Jenkins, 3 Rich. Eq. 318. 
 
 (a) " At the present day, execu- was the man who paid his ancestor's 
 
 tors and administrators hold the as- debts and took his property. The 
 
 sets of the estate in a fiduciary executor did not step into the heir's 
 
 capacity. Their rights and liabili- shoes, and come fully to represent 
 
 ties, in respect of the fund in their the person of the testator as to 
 
 hands, are very like those of trus- personal property and liabilities 
 
 tees. But this way of regarding until after Bracton wrote his great 
 
 them is somewhat modern." treatise on the Laws of England.'' 
 
 Holmes, J., in an article in 9 Harv. Ibid., in 12 Harv. L. Rev. 446. 
 L. Rev. p. 42, which reviews in- (b) Fesmire's Estate, 134 Penn. 
 
 stances of this change in the law. St. 67 ; Fesmire v. Shannon, 143 
 
 " The executor originally was noth- id. 201. 
 ing but a feoffee to uses. The heir 
 
 595
 
 § 422.] GENEKAL DUTIES OF TEUSTEES. [CHAP. XIV. 
 
 in the will, he will be responsible for the appropriation of 
 the proceeds, though his coexecutor received all the money.* 
 An attempt has been made to break down these distinctions 
 between executors and trustees, and to establish the rule, 
 that no intention to be jointly answerable can be inferred 
 from the mere fact of signing a receipt without receiving any 
 part of the money either separately or jointly. ^ And it ap- 
 pears now to be well settled, that if the joint receipt is 
 purely nugatory, and no funds pass upon it into the hands of 
 either executor, a coexecutor will not be liable.^ So far the 
 doctrine of Lord Northington in Westerly v. Clarke has been 
 agreed to, though the case itself seemed to go further.* Lord 
 Harcourt, in Churchill v. Hobson,^ started another distinc- 
 tion, that executors who joined in the receipt were liable to 
 creditors, though they did not receive the money, while they 
 were not liable to legatees or heirs; but this distinction has 
 no standing in a court of equity, whatever may be the rule at 
 law, and is now overruled.^ 
 
 § 422. If an executor does any act to transfer the property 
 into the exclusive control of a coexecutor, and thus enables 
 
 1 Ochiltree v. Wright, 1 Dev. & B. Eq. 336 ; Hauser v. Lehman, 2 Ired. 
 Eq. 594 ; Mathews i-. Mathews, 1 McMul. Eq. 410 ; Johnson v. Johnson, 
 2 Hill, Eq. 277; McMurray v. Montgomery, 2 Swanst. 374; Deaderick v. 
 Cantrell, 10 Yerg. 263. 
 
 2 Westerly v. Clarke, 1 Ed. 537 ; 1 Dick. 329 ; Candler v. Tillett, 22 
 Beav. 257 ; Harden v. Parsons, 1 Ed. 147 ; Churchill v. Hobson, 1 P. Wms. 
 241, n.; Stell's App., 10 Penn. St. 152; McNair's App., 4 Rawle, 145; 
 Ochiltree v. Wright, 1 Dev. & B. Eq. 336 ; Doyle v. Blake, 2 Sch. & Lef . 
 242 ; McKim v. Aulbach, 130 Mass. 481. 
 
 3 Westerly v. Clarke, 1 Ed. 537 ; Scurfield v. Howes, 3 Bro. Ch. 94 ; 
 Hovey r. Blakeman, 4 Ves. 608 ; Chambers v. Minchin, 7 Ves. 198 ; Brice 
 V. Stokes, 11 Ves. 319; 3 Lead. Cas. Eq. 557, 558. 
 
 * Scurfield v. Howes, 3 Bro. Ch. 94 ; Hovey v. Blakeman, 4 Ves. 608 ; 
 Chambers v. Minchin, 7 Ves. 198; Brice v. Stokes, 11 Ves. 325 ; 3 Lead. 
 Cas. Eq. 725-759 ; Walker v. Symonds, 3 Swanst. 64 ; Shipbrook v. Hinch- 
 inbrook, 16 Ves. 479 ; Joy v. Campbell, 1 Sch. & Lef. 341 ; Doyle v. Blake, 
 2 id. 242. 
 
 5 1 P. Wms. 241 ; Gibbs v. Herring, Pr. Ch. 49 ; Harden v. Parsons, 1 
 Eden, 147. 
 
 « Sadler v. Hobbs, 2 Brown, Ch. 117; Doyle v. Blake, 2 Sch. & Lef. 
 239. 
 
 596
 
 CHAP. XIV.] LIABILITY OF COEXECUTOKS. [§ 423. 
 
 his cocxccutor to misapply the same, he will be lialjle;' (a) 
 as if he joins in drawing'-^ or indorsing^ a bill or note, or de- 
 livers or assigns securities to his coexecutor to enable him 
 to receive the money alone,* or if he gives him a power of 
 attorney/ or docs any other act that enables his coexecutor 
 to misapply the money; and so it was held, "that, if by 
 agreement between the executors, one be to receive and in- 
 termeddle with such a part of the estate, and the other with 
 such a part, each of them will be chargeable for the whole, 
 because the receipts of each are pursuant to the agreement 
 made betwixt both. "^ Probably the case would not now be 
 followed, but it illustrates the principle. 
 
 § 423. But if the act is such that it is absolutely neces- 
 sary that the executors should all join in it, their liability 
 will be put upon the same ground as the liability of trustees 
 joining; as, if it is necessary that they should indorse a bill 
 in order to collect it,*" or that they should join in transfer- 
 ring stock. ^ But even if the act is indispensable, it is still 
 the duty of the executor to see that it is consistent with a 
 due execution of the trust, ^ and he must not rely upon the 
 
 1 Townshend v. Barber, 1 Dick. 356 ; Moses v. Levi, 3 Y. & C. 359 ; 
 Candler r. Tillett, 22 Beav. 263 ; Clough r. Dixon, 3 Myl. & Cr. 497 ; 
 Dines v. Scott, T. & R. 361 ; Edmonds r. Crenshaw, 14 Pet. 166 ; Spar- 
 hawk V. Buell, 9 Vt. 41 ; Adair v. Brimmer, 74 N. Y. 539. 
 
 2 Sadler r. Ilobbs, 2 Bro. Ch. 114. 
 ' Hovey v. Blakeman, 4 Yes. 60S. 
 * Candler r. Tillett, 22 Beav. 236. 
 
 6 Doyle V. Blake, 2 Sch. & Lef. 231 ; Lees v. Sanderson, 4 Sim. 28 ; 
 Kilbee v. Sneyd, 2 Moll. 200. 
 
 6 Gill r. Att. Gen., Hardw. 314; Moses v. Levi, 3 Y. & C. 359 ; Lewis 
 V. Nobbs, L. R. 8 Ch. D. 591. 
 
 ' Hovey v. Blakeman, 4 Ves. 60S. 
 
 8 Chambers v. Minchin, 7 Ves. 197; Shipbrook v. Hinchinbrook, 11 
 Ves. 254 ; 16 Ves. 479 ; Terrell i'. Mathews, 1 Mac. & G. 434, n. ; Murrill 
 r. Cox, 2 Vern. 570 ; Scurfield v. Howes, 3 Bro. Ch. 94 ; Moses v. Levi, 
 3 Y. & C. 359. 
 
 9 Ibid. ; Underwood v. Stevens, 1 Mcr. 712 ; Bick v. Alotley, 2 Myl. 
 & K. 312 ; Williams v. Nixon, 2 Beav. 472 ; Hewett v. Foster, 6 Beav. 
 259. 
 
 (a) In reOsbom, 87 Cal. 1 ; Walker v. Walker, SS Ky. 615. 
 
 597
 
 § 425.] GENERAL DUTIES OF TRUSTEES. [CIIAP. XIY 
 
 representations or assertions of his coexecutor, as to its 
 necessity. He must use due diligence and make due inves- 
 tigations to ascertain if the representations are true ; ^ as 
 where the debts should have been long paid in the ordinary 
 course of administration a coexecutor applied to the other 
 to join in a sale of stocks to pay the debts, and the executor 
 inquired and learned that there were debts to be paid, but it 
 afterwards appeared that the coexecutor had the money to 
 pay the debts in his own hands ; the executor who joined in 
 conveying the stocks was held for the default of his co- 
 executor, on the ground of negligence in not knowing how 
 the assets in the hands of the coexecutor were disposed of, 
 and how it happened that the debts remained unpaid. ^ 
 
 § 424. So an executor will be called upon to make good 
 the loss of money that he allows to remain two years or any 
 other unreasonable time in the hands of his coexecutor; ^ but 
 he will not be called upon to repay that part which he can 
 show that his coexecutor actually expended in the execution 
 of the trust. ^ So, if an executor neglects for an unreasonable 
 time to insist upon the payment of a debt to the estate due 
 from his coexecutor, he will be liable to pay the debt 
 himself.^ 
 
 § 425. The same rules that apply to the powers and liabil- 
 ities of coexecutors apply also to the powers and liabilities 
 of joint administrators. There is one dictum that the liability 
 
 1 Ibid. 
 
 2 Shipbrook v. Hinchinbrook, 11 Ves. 254; Bick v. Mathews, 3 Myl. & 
 K. 312 ; Clark v. Clark, 8 Paige, 152. 
 
 3 Scurfield v. Howes, 3 Bro. Ch. 91 ; Styles v. Guy, 1 Mac. & G. 422 ; 
 1 H. & Tw. 523; Egbert v. Butter, 21 Beav. 560; Lincoln v. Wright, 
 4 Beav. 427. 
 
 * Shipbrook v. Hinchinbrook, 11 Ves. 252; 16 Yes. 477; Williams v. 
 Nixon, 2 Beav. 472 ; Kilbee v. Sneyd, 2 Moll. 213 ; Underwood v. 
 Stevens, 1 Mer. 172; Brice v. Stokes, 11 Ves. 328; Hewett v. Foster, 6 
 Beav. 259. 
 
 8 Styles V. Guy, 1 Mac. & G. 422 ; 1 H. & Tw. 523 ; Egbert v. Butter, 
 21 Beav. 560; Scully i'. Delany, 2 Ir. Eq. 165 ; Candler v. Tillett, 22 Beav. 
 257; Carter v. Cutting, 5 Munf. 223. 
 598
 
 CHAP. XIV.] LIABILITY FOR ACTS OF COTRUSTEE. [§ 426, 
 
 I 
 
 of joint administrators is like the lialtility of cotrustees, 
 but it is well settled that the liability of joint administrators 
 and cocxecutors is identical. ^ 
 
 § 426. It must bo borne in mind, that in the United States, 
 administrators, executors, guardians, and a large class of 
 trustees, are appointed by judges of probate, surrogates, 
 ordinaries, or oflicers exercising a similar jurisdiction. All 
 trustees appointed under wills, proved and recorded in pro- 
 bate courts, are appointed by decrees of the court in the same 
 manner as executors. In many cases, a bond with sureties 
 is required as a prerequisite to an appointment and qualifi- 
 cation to act, unless such bond is expressly waived by the 
 testator or the cestui que trust. This bond generally runs to 
 the judge or some officer for the use and protection of those 
 beneficially interested in the estate. If it is a joint bond, 
 executed by all the joint administrators, guardians, co- 
 executors or cotrustees, it is in the nature of an agreement 
 to be answerable for each other's acts and defaults. The 
 remedy for a breach of trust in such cases is a suit upon the 
 bond in the name of the proper person for the benefit of 
 those interested, (a) against all the joint makers and sureties 
 of the bond; and any breaches of trust, committed by either 
 or all of the trustees, may be given in evidence, and a judg- 
 ment against all will be rendered, although the breach of 
 trust was committed by one alone.^ This joint liability of 
 all the cotrustees under a joint bond results from the nature 
 
 1 Hudson V. Hudson, 1 Atk. 4G0. 
 
 2 Willand v. Fenn, 2 Ves. 267, cited; Murray ». Blatchford, 1 Wend. 
 583 ; O'Neall v. Herbert, 1 McMul. Eq. 405. 
 
 ' Ames V. Arinstrong, 106 Mass. 35 ; Hill v. Davis, 4 i\Iass. 137; Brazer 
 V. Clark, 5 Pick. 96; Towne v. Ammidown, 20 Pick. 535; Newcombe v. 
 Williams, 9 Met. 525 ; Sparhawk v. Buell, 9 Vt. 41 ; Boyd i: Boyd, 1 Watts, 
 368 ; Bostick v. Elliott, 3 Head, 507 ; Braxton v. State. 25 Ind. 82 ; Jef- 
 fries V. Law.son, 39 Miss. 791; Gayden v. Gaydeu, 1 McMul. Eq. 435; 
 Hughlett V. Hughlett, 5 Humph. 453 ; Clarke v. State, 6 G. & J. 288 ; 
 South V. Hay, 3 Mon. 88 ; Anderson r. Miller, 6 J. J. Marsh. 5G8 ; Morrow 
 t'. Peyton, 8 Leigh, 54; Babcock v. Hubbard, 2 Conn. 539. 
 
 (a) See Dexter r. Cotting, 149 Mass. 92. 
 
 599
 
 § 427.] GENERAL DUTIES OF TRUSTEES. [CIIAP. XIV. 
 
 of the bond, and from the technical nature of an action at 
 law for a breach of the bond by a breach of the trust. If, 
 however, one of the coexecutors or cotrustees dies and a 
 breach of trust is committed by the survivor after his death, 
 the estate of the deceased executor cannot be made liable for 
 the breach of the trust. ^ It will be seen at once, that very 
 few of the rules heretofore stated in relation to the liabili- 
 ties of executors or trustees for the acts and defaults of their 
 coexecutors or cotrustees have any bearing upon the liabil- 
 ity of cotrustees who have given a joint bond for the faithful 
 execution of the trust. The statutes of many of the States, 
 however, provide that separate bonds with sureties may be 
 taken from each of the administrators, executors, guardians, 
 or trustees, as the case may be. And where separate bonds 
 are taken from each of the executors or trustees, the liability 
 of the executor or trustee for the acts and defaults of his co- 
 executor or cotrustee would be governed by the rules and 
 principles hereinbefore stated. ^ But if they sign a joint 
 bond, they are jointly liable. ^ 
 
 § 427. Trustees hold a position of trust and confidence. 
 The legal title of the trust property is in them, and generally 
 its whole management and control is in their hands. At the 
 same time the beneficiaries of the trust may be women, or 
 children, or persons incompetent to protect their own inter- 
 ests. For these reasons, to protect the weak and helpless on 
 the one hand, and to prevent trustees from using their posi- 
 tion and influence for their own gain, and to prevent them 
 from hazarding the trust property upon what they may think 
 to be profitable speculations, on the other, they are not 
 allowed to make any profit from their office. They cannot 
 use the trust property, nor their relation to it, for their own 
 personal advantage. All the power and influence which the 
 possession of the trust fund gives must be used for the ad- 
 vantage and profit of the beneficial owners, and not for the 
 
 1 Brazer v. Clark, 5 Pick. 96 ; Towne v. Ammidown, 20 Pick. 535. 
 
 2 McKim I'. Aulbach, loO Mass. 481. 
 * Ames V. Armstroug, lOG Mass. 18. 
 
 600
 
 CHAP. XIV.] TRUSTEES CAN MAKE NO PROFIT. [§ 427. 
 
 personal gain and emolument of the trustee. No other rule 
 would be safe ; nor would it be possible for courts to apply 
 any other rule, as between trustee and cestui que trunt.^ 
 This rule is so stringent that Lord Eldon once sent a case to 
 a master to inquire whether the privilege of sporting on the 
 trust estate could be let lor the benefit of the cestui que trust ; 
 if not, he thought the game should belong to the heir; the 
 trustee might aj)point a game-keeiier for the preservation of 
 game for the heir, but he ought not to keep up a lodge for 
 his own pleasure. 2 So where a trustee retired from the office 
 in consideration that his successor paid him a sum of money, 
 it was held that the money so paid must be treated as a part 
 of the trust estate, and that the trustee must account for it, 
 as he could make no profit, directly or indirectly, from the 
 trust property or from the position or office of trustee.^ If a 
 trustee joins in betraying the trust for private gain, he will 
 have to bear any loss that may fall on him by the dishonesty 
 of his confederates. The law will not aid him against them. 
 It will not unravel a tangled web of fraud for the benefit of 
 one through whose agency the web was woven and wlio has 
 himself become enmeshed therein.* Trustees may be enjoined 
 from carrying out a contract made for their own benefit.^ 
 But where one holds a trust for the support of another, 
 the trustee may supply goods from his store at a fair 
 
 1 Burgess v. Wheate, 1 Ed. 226; Docker v. Somes, 2 Myl. & K. 664; 
 O'llerlihy v. Hedges, 1 Sch. & Lef. 126 ; Bently v. Craven, IS Bccav. 75; 
 Gubbius ('. Creed, 2 Sch. & Lef. 218; Ex parte Andrews, 2 Rose, 412; 
 Hamilton 'v. Wright, 9 CI. & Fin. Ill; Middleton v. Spicer, 1 Bro. Ch. 
 205 ; Sherrard v. Harborough, Arab. 165 ; Re Shrewsbury School, 1 Myl. 
 & Cr. 647; Martin v. Martin, 12 Sim. 579 ; Cooke v. Cholmondeley, 3 Drew. 
 1; Hawkins v. Chappell, 1 Atk. 621; Johnson v. Baber, 22 Beav. 562; 
 6 De G., M. & G. 43!) ; Parshall's App., 65 Benn. St. 233; Ellis r. Barker, 
 L. R. 7 Ch. 104; Sloo v. Law, 3 Blatch. C. C. 457; Williams v. Stevens, 
 L. R. 1 P. C. 352. 
 
 '^ Webb ('. Shaftesbury, 7 Ves. 480; Hutchinson v. Morritt, 3 Y. & 
 C. 47. 
 
 8 Sugden v. Crossland, 3 Sm. & Gif. 102. 
 
 * Farley v. St. Paul M. & M. Rd. ; 4 McCrary (U. S.), 142. 
 
 6 Sloo V. Law, 3 Blatch. C. C. 457. 
 
 GOl
 
 § 428.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 price. This is not dealing with the trust for his private 
 gain. 1 
 
 § 428. A trnstce, executor, or assignee cannot buy up a 
 debt or incumbrance to which the trust estate is liable, for 
 less than is actually due thereon, and make a profit to him- 
 self; but such purchase inures for the benefit of the trust 
 estate, and the creditors, legatees, and cestuis que trust shall 
 have all the advantage of such purchase. ^ But if a trustee 
 buys up an outstanding debt for the benefit of the cestuis que 
 trust, and they refuse to take it or to pay the purchase- 
 money, they cannot afterwards, when the purchase turns out 
 to be beneficial, claim the benefit for themselves. ^ Nor can 
 the trustee make any contract with the cestui que trust for 
 any benefit, or for the trust property, nor can he accept a 
 gift from the cestui que trust.^ The better opinion, however, 
 is, that a trustee may purchase of the cestui que trust, or 
 accept a benefit from him, bat the transaction must be beyond 
 suspicion ; and the burden is on the trustee to vindicate the 
 bargain or gift from any shadow of suspicion, and to show 
 that it was perfectly fair and reasonable in every respect, 
 and courts will scrutinize the transaction with great sever- 
 ity.^ (a) So, if a trustee buys the trust property at private 
 
 1 Cogbill r. Boyd, 77 Va. 450. 
 
 2 Robinson v. Pett, 3 P. Wms. 251, n. (a) ; Pooley v. Quilter, 4 Drew. 
 184; 2 De G. & J. 327; Morret v. Paske, 2 Atk. 54 ; Dunch v. Kent, 1 Vein. 
 241; Darcy v. Hall, id. 49; Ex parte Lacey, 6 Ves. 628; Anon. 1 Salk. 
 155 ; Fosbrooke v. Balguy, 1 Myl. & K. 226 ; Carter i-. Home, 1 Eq. Cas. 
 Ab. 7; Schoonmaker v. Van Wyke, 31 Barb. 457; Matter of Oakley, 
 2 Edw. 478; Herr's Est., 1 Grant's Cas. 272; Quackenbush v. Leonard, 
 9 Paige, 334 ; Slade v. Van Vechten, 11 Paige, 21 ; Barksdale v. Finney, 
 14 Grat. 338 ; King v. Cushman, 41 111. 31. 
 
 3 Barwell v. Barwell, 34 Beav. 371. 
 
 4 Vaughton v. Noble, 30 Beav. 34; Baxter v. Costin, 1 Busb. Eq.262; 
 Andrews v. Ilobson, 23 Ala. 219 ; Mason v. Martin, 4 ]\Id. 124 ; Green v. 
 Winter, 1 Johns. Ch. 26; Spindler v. Atkinson, 3 Md. 409; Wiswall v. 
 Stewart, 3 Ala. 433. 
 
 5 Ex parte Lacey, 6 Ves. 626; Scott v. Davis, 1 Myl. & Cr. 87; Coles 
 y. Trecothick, 9 Ves. 234; Morse v. Royal, 12 Ves. 372; Dunlop ,u 
 
 (a) Williamson v. Kohn, 66 F. R. 55; Avery v. Avery, 90 Ky. 613; 
 infra, § 828, n. 
 602
 
 CHAP. XIV.] TRUSTEES CAN MAKE NO PROnT. [§ 429. 
 
 sale or puljlic auction, he takes it subject to the right of the 
 cestui que trust to have the sale set aside, or to claim all tlie 
 benefits and profits of the sale for himself.^ (a) 
 
 § 429. Trustees cannot make a profit from the trust funds 
 committed to them, by using the money in any kind of trade 
 or speculation, nor in their own business; nor can they put 
 the funds into the trade or business of another, under a stip- 
 ulation that they shall receive a bonus or other profit or 
 advantage. In all such cases, the trustees must account for 
 every dollar received from the use of the trust-money, and 
 they will be absolutely responsible for it if it is lost in any 
 such transactions. By this rule, trustees may be liable to 
 great losses while they can receive no profit; and the rule is 
 made thus stringent, that trustees may not be tempted from 
 selfish motives to embark the trust fund upon the chances of 
 trade and speculation. ^ If a trustee charge a bonus in his 
 
 Mitchell, 10 Ohio, 17 ; Harrington v. Brown, 5 Pick. 519 ; Bolton v. 
 Gardner, 3 Paige, 273 ; Ames v. Downing, 1 Bradf . 321 ; Lyon v. Lyon, 8 
 Ired. Eq. 201 ; Pennock's App., 14 Peun. St. 416 ; Bruch v. Lautz, 2 Rawie, 
 392 ; Stuart r. Kissam, 2 Barb. 493 ; Jones v. Smith, 33 Miss. 215; Soller 
 r. Chandler, 26 Miss. 154 ; Ilerne v. Meeres, 1 Vern. 465 ; Smith v. Isaac, 
 12 Mo. 106; ante, §195. 
 
 ^ Beeson v. Beeson, 9 Barr, 279 ; Patton v. Thompson, 2 Jones, Eq. 
 285 ; Mason v. Martin, 4 Md. 124 ; Spindler v. Atkinson, 3 Md. 409 ; 
 Davoue v. Fanning, 2 Johns. Ch. 252 ; Iddings v. Bruer, 4 Sandf. Ch. 
 222; Hendricks r. Robinson, 2 Johns. Ch. 283; Evertson r. Tappan, 5 id. 
 497 ; Smith v. Lansing, 22 N. Y. 530 ; Ames v. Downing, 1 Bradf. 321 ; 
 Andrews v. Hobson, 23 Ala. 219 ; Charles v. Dubois, 29 Ala. 367 ; Wiswall 
 V. Stewart, 32 Ala. 433 ; Bellamy v. Bellamy, 6 Fla. 62 ; Schoonmaker v. 
 Van Wyke, 31 Barb. 457. 
 
 2 Docker v. Somes, 2 Myl. & K. 661 ; "Willett r. Blanford, 1 Hare, 253; 
 Cummins v. Cummins, G Ir. Eq. 723 ; Wedderburn v. Wedderburn,2Keen, 
 722 ; 4 Myl. & Cr. 41 ; 22 Beav. 84 ; Townend v. Townend, 1 Gif. 201 ; 
 Parker v. Bloxam, 20 Beav. 295 ; Manning v. Manning, 1 Johns. Ch. 527 ; 
 Brown v. Ricketts, 4 id. 303 ; In re Thorp, Davies, 290 ; William v. 
 Stevens, L. R. 1 P. C. 352; Blauvelt v. Ackerman, 20 N. J. Eq. ; Dur- 
 
 (d) De Chambrun i\ Cox, 60 F. R. v. Northrop, 30 Fla. 612 : Mullen r. 
 471; Mills r. Mills, 63 F. R. 511; Doyle, 147 Penn. St. 512; Cusliman 
 Darling v. Potts, 118 Mo. 506; Cole v. JBonfield, 139 111. 219. 
 V. Stokes, 113 N. C. 270; Anderson 
 
 603
 
 § 431 ] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 account for his skill and services in conducting the business 
 of the trust, it will be set aside. ^ 
 
 § 430. All persons who stand in a fiduciary relation to 
 others must account for all the profits made upon moneys in 
 their hands by reason of such relation. ^ Thus partners stand 
 in a fiduciary relation to each other, and if a partner, instead 
 of winding up the partnership affairs, when for any reason 
 he ought to do so, continues to use the partnership property 
 in business, and makes a profit thereon, he must account for 
 it.^ But in making up the accounts, courts will make a just 
 allowance for time, skill, and other elements of success in 
 conducting the business.* If a trader has trust funds in his 
 hands, not in a fiduciary character, but through a breach of 
 trust by a trustee, he is liable only for interest.^ Agents, 
 guardians, directors of corporations, officers of municipal 
 corporations, and all other persons clothed with a fiduciary 
 character, are subject to this rule.^ 
 
 § 431. So if persons, standing in such a relation to an 
 estate, obtain advantages in respect to it, those who succeed 
 
 ling V. Hammer, id. 220 ; Pluman v. Slocum, 41 N. Y. 53 ; Frank's App., 
 5 Peun. St. 190. 
 
 1 Barrett v. Hartly, L. R. 2 Eq. 789. 
 
 2 Hawley v. Cramer, 4 Cow. 717; Richardson v. Spencer, 18 B. Mon. 
 450 ; Thorp v. McCullum, 1 Gil. (111.) 615 ; Van Epps v. Van Epps, 9 Paige, 
 237 ; Ackerman v. Emot, 4 Barb. 626. 
 
 8 Bentley v. Craven, 18 Beav. 75 ; Parsons v. Hayward, 31 Beav. 199 ; 
 Crawshay v. Collins, 15 Ves. 226; Brown v. De Tastet, Jac. 284; Wedder- 
 burn V. Wedderburn, 2 Keen, 722; 4 Myl. & Cr. 41; 22 Beav. 84. A part- 
 ner who receives the partnership property on a resale from the purchaser 
 at public auction, by a secret arrangement between them, is bound to 
 account as if no sale had been made, although his copartner was a bidder 
 at the auction sale. Jones v. Dexter, 130 Mass. 380. 
 
 4 Docker v. Somes, 2 Myl. & K. 662; Willett v. Blanford, 1 Hare, 253; 
 Brown v. De Tastet, Jac. 284. 
 
 5 Strowd V. Gwyer, 28 Beav. 130; Townend v. Townend, 1 Gif. 210; 
 Simpson v. Chapman, 4 De G., M. & G. 154 ; Macdonald v. Richardson, 
 1 Gif. 81; Brown v. De Tastet, Jac. 284; Chambers v. Howell, 11 Beav. 
 6; Ex parte Watson, 2 V. & B. 414. 
 
 « Morret v. Paske, 2 Atk. 52; Powell v. Glover, 3 P. Wms. 251; Great 
 604
 
 CIIAP. XIV.] TKUSTEES CAN MAKE NO I'KOFIT. [§ 431. 
 
 to the estate sliall have the advantages which arc thus ob- 
 tained.^ As where a mortgagee had jjurchased tiie riglit of 
 dower of the widow of a deceased mortgagor, the heir of the 
 mortgagor, upon a bill to redeem, was held to have the right 
 to take the purchase of the dower at the price whicli the 
 mortgagee had paid.^ So an heir cannot hold an incum- 
 brance for more than he gave for it, against the creditors of 
 the ancestor's estate,^ and it is conceived that the same rule 
 applies to a devisee* But if the heir or devisee is himself 
 an incumbrancer at the death of the ancestor, he may buy in 
 a prior, but not a subsequent, incumbrance, and hold it for 
 the whole amount due. The court considers him, in buying 
 such a prior incumbrance, not as heir or devisee, but as an 
 incumbrancer or stranger; and so if, as such prior incumbran- 
 cer, he obtains a prior incumbrance by the bounty or gift of 
 another, he shall hold such bounty or gift for the benefit of 
 his own incumljrance, and there is no reason why he should 
 hold it for the benefit of the creditors of the ancestor.^ So 
 the heir or devisee may hold a prior incumbrance for full 
 value, though bought for less, against a subsequent incum- 
 brancer.^ So, if one of several joint purchasers of an estate 
 buy in an incumbrance for less than its face, he shall hold 
 it for his copurchasers at the same price he paid.'^ And 
 the opinion has been expressed, that a tenant for life holds 
 the same relation toward the remainder-man; and if such 
 tenant buy in an incumbrance upon the estate for less than 
 
 Luxembourg Ry. Co. v. Magnay, 23 Beav. 640; 25 Beav. 586 ; Chaplin r. 
 Young, 33 Beav. 414; Bowes v. Toronto, 11 Moore, P. C. C. 463; Docker 
 V. Somes, 2 Myl. & K. 665. 
 
 1 Baldwin v. Bannister, cited 3 P. Wms. 251 ; Dobson r. Land, 8 Hare, 
 220 ; Arnold v. Garner, 2 Phill. 231 ; Matbison r. Clarke, 3 Drew. 3. 
 
 2 Il)id. 
 
 8 Lancaster v. Evors, 10 Beav. 154 ; 1 Phill. 354; Morret r. Paske, 
 2 Atk. 54; Long v. Clopton, 1 Vern. 464; Brathwaite v. Brathwaite, id. 
 334; Darcy V. Hall, id. 49. 
 
 * Long V. Clopton, 1 Vern. 464 ; Davis v. Barrett, 14 Beav. 542. 
 
 6 Davis V. Barrett, 14 Beav. 542 ; Darcy v. Hall, 1 Vern. 49 ; Anon. 
 1 Salk. 155. 
 
 8 Davis V. Barrett, 14 Beav. 542. 
 
 ' Carter v. Home, 1 Eq. Cas. Ab. 7. 
 
 605
 
 § 432.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 its face, he cannot claim from the remainder-man more than 
 he gave.-^ 
 
 § 432. The rule that trustees can make no profit out of the 
 estate is carried so far in England that they can receive no 
 compensation for their services. In the United States, trus- 
 tees are entitled to reasonable compensation. But both in 
 England and the United States, a trustee can receive no in- 
 direct profit from the estate by reason of his connection with 
 it. Thus a trustee cannot be appointed receiver with a 
 salary, 2 nor would he be appointed without compensation ex- 
 cept under peculiar circumstances ; for it is his duty to super- 
 intend and watch over the receiver.^ The same reasons do 
 not apply for excluding a dry trustee.^ If trustees are fac- 
 tors,^ or brokers,^ or commission agents,^ or auctioneers,* or 
 bankers,^ or attorneys, or solicitors, ^^ they can make no 
 charges against the trust estate for services rendered by them 
 in their professional capacity to the estate of which they are 
 trustees. They may employ the services of such agents, if 
 necessary, and pay for them from the estate; but if they 
 undertake to act in such capacities themselves for the estate, 
 they can receive no compensation. This rule is so strict, 
 that if the trustee has a partner, and employs such partner, 
 
 1 Hill V. Brown, Dr. 433. 
 
 2 Sutton V. Jones, 15 Ves. 584; Morison v. Morison, 4 Myl. & Cr. 215; 
 
 Sykes v. Hastings, 11 Ves. 363; v. Jolland, 8 Ves. 72; Anon. 3 Ves. 
 
 515. 
 
 3 Sykes v. Hastings, 11 Ves. 363. 
 * Sutton V. Jones, 15 Ves. 587. 
 
 5 Scattergood v. Harrison, Mos. 128. 
 « Arnold v. Garner, 2 Phill. 231. 
 
 7 Sheriff v. Aske, 4 Russ. 33. 
 
 8 Mathison v. Clarke, 3 Drew. 3; Kirkman v. Booth, 11 Beav. 273. 
 
 9 Crosskill v. Bower, 1 Dr. & Sm. 319. 
 
 10 Pollard v. Doyle, 1 Dr. & Sm. 319 ; IMoore v. Frowd, 3 Myl. & Cr 
 46; Frazer v. Palmer, 4 Y. & C. 515; York v. Brown, 1 Col. C C. 260 
 Broughton v. Broughton, 5 De G., INI. & G. 160; In re Sherwood, 3 Beav 
 338 ; Douglass v. Archbutt, 2 De G. & J. 148 ; Harbin v. Darby, 28 Beav 
 325 ; Morgan v. Homans, 49 N. Y. 667 ; Gomley v. Wood, 9 Ir. Eq. 418; 
 Binsse v. Paige, 1 Keyes, 87 ; 1 N. Y. Decis. 138. 
 606
 
 CHAP. XIV.] TRUSTEES CAN MAKE NO PKOFIT. [§ 433. 
 
 no charge can be made by the firm;^ but if the trustee is 
 exchidcd from all participation in the compensation, the 
 partner of the trustee may be paid like any other person for 
 similar services. ^ In one case where several trustees were 
 made defendants, one of them, being a solicitor, conducted 
 the defence, and was allowed his full costs, it not appearing 
 that the costs were increased by such conduct.^ This case 
 is put upon the ground that the services were rendered under 
 the eye of the court, and there could be no danger of collu- 
 sion ; but the case is not approved in England, and has not 
 been followed.^ In the United States, a trustee has been re- 
 fused compensation as solicitor, for professional services 
 rendered by himself for himself as trustee, on the ground that 
 no man can make a contract with himself.^ (a) 
 
 § 433. Under no circumstances can a trustee claim or set 
 up a claim to the trust property adverse to the cestui que 
 trust.^ Nor can he deny his title. '^ (h) If a trustee desires to 
 
 1 Collin V. Carey, 2 Beav. 128 ; Lincoln v. Wmsor, 9 Hare, 158; Chris- 
 tophers V. White, 10 Beav. 523 ; Lyon v. Baker, 5 De G. & Sm. 622 ; 
 Mauson v. Baillie, 2 Macq. (H. L.) 80. 
 
 2 Clack V. Carlon, 7 Jur. (n. s.) 441 ; Burge v. Burton, 2 Hare, 373. 
 
 8 Cradock r. Piper, 1 McN. & G. 664 ; 1 Hall & T. 617, overruling 
 Bainbrigge v. Blair, 8 Beav. 588. 
 
 * Lyon V. Baker, 5 De G. & Sm. 622. 
 
 ^ Mayer v. Galluchet, 6 Rich. Eq. 2 ; Jenkins v. Fickling, 4 Des. 470; 
 Edmonds v. Crenshaw, Harp. 232. 
 
 6 Att. Gen. v. Monro, 2 De G. & Sm. 163; Stone r. Godfrey, 5 De G., 
 M. & G. 76; Frith r. Curtland, 2 Hem. & ]M. 417; Pomfret v. Winsor, 2 
 Ves. 476 ; Kennedy r. Daley, 1 Sch. & Lef . 381 ; Ex parte Andrews, 2 Rose, 
 412; Conry v. Caulfield, 2 B. & B. 272; Newsome v. Flowers, 30 Beav. 
 461; Shields v. Atkins, 3 Atk. 560; Langley v. Fisher, 9 Beav. 90; Reece 
 V. Frye, 1 De G. & Sm. 279 ; Benjamin r. Gill, 45 Ga. 110. 
 
 ' Von Hurter r. Spergeman, 2 Green, Ch. 185. 
 
 (a) " When it is once admitted not his duty to render." Holmes, 
 
 that a trustee may be paid for J., in Turnbull v. Pomeroy, 140 
 
 ordinary services, it is hard not to Mass. 117, 118; see also Perkins's 
 
 admit also that there may be cir- Appeal, 108 Penn. St. 314; infra, 
 
 cumstances under which he may be § 918. 
 
 allowed an additional sum for ex- (5) Associate Alumni v. General 
 
 traordinary services which it was Theol. Seminary, 49 N. Y. S. 745. 
 
 607
 
 § 433.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 set up a title to the trust property in himself, he should 
 refuse to accept the trust. But if a claim is made upon him 
 by a third person, adverse to the cestui que trust, he may de- 
 cline to deliver over the property to his cestui que trust until 
 the title is determined, or he is indemnified or secured 
 against the consequences,^ or he may pay the fund into court,^ 
 and if he neglects to do so, and thus makes a suit necessary, 
 he will recover only such costs as he would have been enti- 
 tled to if he had paid the money into court. ^ A trustee must 
 assume the validity of the trust under which he acts, until 
 it is actually impeached, although he may have some suspi- 
 cion that there may have been fraud or collusion in the ap- 
 pointment and settlement.* (a) So, if a trustee obtains a 
 knowledge of facts that would defeat the title of his cestui 
 que trust, and give the property over to another, he is not 
 justified in morals in communicating such facts to such other 
 person. His duty is to manage the property for his cestui 
 que trust, and not to keep his conscience, or betray his title 
 or interests;^ and he can make no admissions prejudicial to 
 the rights of his cestid que trust,^ nor can he use his influ- 
 ence to defeat the purposes of the trust as declared by the 
 creator of it.'^ 
 
 1 Neale v. Davies, 5 De G., M. & G. 258. 
 
 2 Gunnell v. Whitear, L. R. 10 Eq. 661. 
 
 8 Ibid. ; Weller v. Fitzhugh, 22 L. T. (n. s.) 567. 
 
 * Beddoes v. Pugh, 26 Beav. 407 ; Reid v. Mullins, 48 Mo. 344. 
 
 6 Lewin, 234. 
 
 « Thomas v. Bowman, 30 111. 34; 29 111. 426. 
 
 ' Ellis V. Barker, L. R. 7 Ch. 104. 
 
 (a) A party to a contract, who Harbin v. BeU, 54 Ala. 389 ; Saun- 
 seeks to be relieved therefrom, and ders v. Richards, 35 Fla. 28, 42. 
 relies upon its illegality or want of In Thomson v. Eastwood, 2 A. C. 
 consideration, may be estopped from 215, 233, Lord Cairns, L. C, held 
 setting up such a defence, and a a trustee, not proved to be charge- 
 trustee who has accepted and entered able with personal fraud, liable for 
 upon the administration of the trust, denying, unconscionably and upon 
 cannot allege the invalidity of his untenable grounds, his beneficiary's 
 appointment as a reason for not title to trust-money, and thus post- 
 accounting for the trust property, poning full payment. 
 608
 
 CHAP. XIV.] TRUSTEES CAN MAKE NO PROFTT. [§ 435. 
 
 § 434. In England, a trustee, being in possession of real 
 estate in trust, may profit from his trust if the cestui que 
 trust dies without heirs ; for, as the trustee is tenant in pos- 
 session, there is no such faihire of a tenant as to cause an 
 escheat; and the trustee thenceforth holds the lands for his 
 own use, there being no cestui que trust to call liim to an 
 account.^ This is a benefit to the trustee ; but it arises rather 
 from an absence of right in others, than from an afTirmative 
 right in himself. But if he is not in possession, or if he 
 has need of the assistance of a court of equity to enforce his 
 rights, the court will not act;^ though it is said, that having 
 the legal title, which a court of law must recognize, he can 
 obtain all the rights which a court of law must give.^ But 
 if the cestui que trust devise the estate to another upon trusts 
 that fail, the trustee must pass over the estate to the devisee, 
 for the reason that the trustee can have no advantage from 
 trusts that so fail, and be has no equity against the devisee 
 to keep the estate.^ 
 
 § 435. Upon this rule of law in England, several questions 
 were started in the case of Burgess v. Whcate,^ which are 
 rather curious than practical in this country; as, for in- 
 stance, if a purchaser should pay the money in full for land, 
 and die without heirs, before he obtained a conveyance, could 
 the vendor keep both land and purchase-money?^ Again, if 
 a mortgagor in fee should die without heirs, could a mort- 
 gagee in fee keep the whole estate, for the reason that there 
 was no person having a right to redeem? " Of course the 
 
 1 Burgess v. Wheate, 1 Eden, 177, 186, 216, 256; Taylor r. Haygarth, 
 U Sim. 8; Daval v. New River Co., 3 De G. & Sm. 394; Cox r. Parker, 
 22 Beav. 168 ; Barrow v. Wadkin, 24 Beav. 9 ; Att. Gen. v. Sands, Hard. 
 496. 
 
 2 Burgess v. Wheate, 1 Eden, 212 ; Onslow r. Wallis, 1 McN. & G. 506 ; 
 Williams v. Lonsdale, 3 Ves. Jr. 752. 
 
 8 King V. Coggan, 6 East, 431 ; 2 Smith, 417 ; King v. Wilson, 10 B. & 
 C. 80. 
 
 * Onslow V. Wallis, 1 McN. & G. 506 ; Jones v. Goodchild, 3 P. Wms. 
 33. 
 
 6 1 Eden, 177. 
 
 6 Ibid. 212. 7 ji[^ 210. 
 
 VOL. I. —39 609
 
 § 437 a.] GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 equity of redemption would be assets for the payment of the 
 debts of the mortgagor. ^ But if there were no debts, could 
 the mortgagee keep a large estate for a small debt? ^ Another 
 question was raised, whether a trust in such cases might not 
 result to the grantor. ^ No answers have been given to 
 these questions by decided cases, and as they were put more 
 than a century ago, it is not probable that a case will arise 
 requiring their judicial determination. 
 
 § 436. In the United States, if a cestui que trust should 
 die without heirs, the trustee could not hold for his own 
 beneficial use ; but he would hold for the State as ultima 
 hceres where all other heirs fail.* 
 
 § 437. Where a eestui que trust of chattel dies without 
 heirs, the trustee can take no benefit ; for the beneficial use 
 in such chattel will go as bona vacantia to the crown or State. 
 So, if the cestui que trust makes a will and appoints an exec- 
 utor, but makes no further disposition of his personalty, the 
 executor will take for the State ; for the executor can take no 
 beneficial interest unless the will expressly gives it to him.'^ 
 
 § 437 a.^ Payment of a trust debt by crediting the trus- 
 tee's individual account is not good.'' A trustee may in good 
 faith compromise a doubtful debt due the trust estate, and a 
 fraud committed by him upon others is admissible to show 
 his zeal for the interests of the estate.^ But a compromise 
 
 1 Beale v. Symonds, 16 Beav. 406; Downe v. Morris, 3 Hare, 394. 
 
 2 1 Eden, 236, 256. 
 
 3 1 Eden, 185. 
 
 4 McCaw V. Galbraith, 7 Rich. L. 75; Matthews v. Ward, 10 G. & J. 
 443 ; Darrah v. McNair, 1 Ashra. 236 ; Ringgold v. Malott, 1 Harr. & John. 
 299 ; 4 Kent, 425 ; 1 Cruise, Dig. 484 ; Crane i'. Reeder, 21 Md. 25. 
 
 6 Middleton v. Spicer, 1 Bro. Ch. 201 ; Taylor v. Haygarth, 14 Sim. 8; 
 Russell V. Clowes, 2 Col. C. C. 048 ; Powell v. Merritt, 1 Sm. & Gif. 381 ; 
 Cradock v. Owen, 2 Sm. & Gif. 241 ; Read v. Steadham, 26 Beav. 495 j 
 Cane v. Roberts, 8 Sim. 214. 
 
 « See § 815 a, 815 b. 
 
 7 INIaynard v. Cleveland, 76 Ga. 52. 
 
 8 Id. 68 et seq. 
 
 610
 
 CHAP. XIV.] TRUSTEES CAN MAKE NO PROFIT. [§ 437 a. 
 
 of a debt due from the trust by which an advantage is gained, 
 as where a legatee accepted 81100 for a -SSOOO legacy, inures 
 to the bene lit of the trust estate, and the trustee cannot trans- 
 fer the whole gain to one of the cestuia. ^ A trustee to sue for 
 and recover certain property may make a fair and judicious 
 compromise by which the title is secured to the ceatui.'^ 
 Church trustees cannot, by their acts, create any lien on the 
 trust property unless they have express authority for so 
 doing." A trustee can be held personally for materials 
 ordered by him for the trust estate, and on contracts made 
 by him in its behalf, unless there be a special agreement to 
 look only to the trust, and this even though the trustee acted 
 under order of the court, this being merely a security to the 
 trustee that he shall be indemnified out of the trust funds.* {a) 
 
 1 Mitchell V. Colburn, 61 Md. 244. 
 
 2 Caldwell c. Brown, 66 Md. 293. 
 
 8 Trustees First M. E. Church v. Atlanta, 76 Ga. 181. 
 * Gill V. Carmine, 55 Md. 339 ; Hackman v. MaGuire, 20 Mo. App. 
 286; People v. Abbott, 107 N. Y. 225; Kedian v. Hoyt, 33 Ilun, 145. 
 
 (a) See 15 Am. L. Rev. 449; 
 1 Ames on Trusts (2d ed.), 423, 
 432; Fehlingerr. Wood, 134 Penn. 
 St. 517; U. S. Mortgage Co. v. 
 Sperry, 138 U. S. 313; Taylor v. 
 Davis, no U. S. 330; Packard v. 
 Kingman, 109 Mich. 497 ; ^Mitchell 
 V. Whitlock, 121 N. C 160 ; Yerkes 
 V. Richards, 170 Penn. St. .340; 
 Wright I'. Franklin Bank (Ohio), 
 51 N. E. 876; Crate v. Luippold, 
 43 N. Y. S. 824; Poindexter v. 
 Burwell, 82 Va. 507; Conally v. 
 Lyons, 82 Texas, 064 ; 30 L. R. An. 
 119. A judgment against a trustee 
 personally is not a lien on land to 
 which he holds title subject to an 
 express or resulting trust. School 
 District i'. Peterson (^linn.), 76 
 N. W. 1126; Wright v. Franklin 
 
 Bank (Ohio), 51 X. E. 876. See 
 supra, § 346. 
 
 Trustees are liable for their torts 
 committed in discharging their 
 duties as trustees, and not the trust 
 estate. Norling v. Allee, 10 N. Y. S. 
 .97; 13 id. 791; Odd Fellows Hall 
 Ass'n V. McAllister, 153 Mass. 292; 
 Shepard v. Craemer, 160 Mass. 490; 
 1 Ames on Trusts (2d ed.), 494, 
 499, n. So are executors. Parker 
 V. Barlow, 93 Ga. 700; Tucker v. 
 Nebeker, 2 App. D. C. 326. In 
 Keating v. Stevenson, 47 N. Y. S. 
 847, it was intimated that, when the 
 tru.stees are sued as such, for negli- 
 gence causing personal injury, they 
 cannot be held to answer personally 
 in the same suit by amendment. 
 See also Ferrier v. Trdpannier, 24 
 Can Sup. 86. 
 
 611
 
 § ^37 b.] 
 
 GENERAL DUTIES OF TRUSTEES. [CHAP. XIV. 
 
 But the mere fact of want of authority in a trustee to bind 
 the estate will not make him personally liable in cases of 
 executory contract where the facts show that no such liability 
 was intended by either of the parties.^ (a) A trustee with 
 absolute control can give a license for his life to a railway 
 company to use the land for a roadbed. ^ A trustee cannot 
 go beyond the purposes of the trust deed and bind the estate. ^ 
 
 § 437 b. Though " trustee " be added to the signature of a 
 note or bond it may be mere descriptio personce, and the obli- 
 gation individual.* And, on the other hand, although the 
 signature of a receipt be merely that of the trustee as an in- 
 dividual, the receipt may be really given as trustee and bind 
 the cestuis.^ A note, though not signed as trustee, will, as 
 between the cestui and the trustee, be the obligation of the 
 former if the debt was properly incurred for its benefit.^ 
 
 1 Michael v. Jones, 84 Mo. 578. 
 
 2 Tutt V. R. R. Co., 16 S. C. 365. 
 
 8 Pracht & Co. v. Lange, 81 Va. 711. 
 
 * Cruselle v. Chastain, 76 Ga. 840 ; Bowen v. Penny, id. 743. 
 
 6 Thomassen v. Van Wyngaarden, 65 Iowa, 689. 
 
 6 Bushong V. Taylor, 82 Mo. 660. 
 
 (a) A trustee's authority to bind 
 the estate by express agreements is 
 limited to such as the law itself 
 implies. Durkin v. Langley, 167 
 Mass. 577, 578. 
 
 In certain States he is by statute, 
 as, e. g., by the California Civil Code, 
 § 2267, made general agent for the 
 estate, in which case his contracts 
 
 are judged by his own authority to 
 perform and have performed the 
 acts contracted for, and his powers 
 are construed in favor of the bene- 
 ficiary. See In re Courtier, 34 Ch. 
 D. 136 ; Sprague v. Edwards, 48 
 Cal. 239 ; Tyler v. Granger, id. 259 ; 
 Bushong V. Taylor, 82 Mo. 660. 
 
 612
 
 CHAP. XV.] POSSESSION. [§ 438. 
 
 CHAPTER XV. 
 
 POSSESSION — CUSTODY — CONVERSION — INVESTMENT OP TRUST 
 PROPERTY, AND INTEREST THAT TRUSTEES MAY BE MADE TO 
 PAY. 
 
 § 438. Duty of trustee to reduce the trust property to possession. 
 
 § 439. Time within which possession should be obtained. 
 
 § 440. Diligence necessary in acquiring possession. 
 
 § 441. The care necessary in the custody of trust property. 
 
 § 442. In what manner certain property should be kept. 
 
 § 443. Where the property may be deposited. 
 
 §§ 444, 445. How money must be deposited in bank. 
 
 § 446. Within what time trustee should wind up testator's establishment. 
 
 § 447. Trustee must not mi.x trust property with his own. 
 
 § 448. When a trustee is to convert trust property. 
 
 § 449. General rule as to conversion. 
 
 § 450. When a court presumes an intention that property is to be converted. 
 
 § 451. When the court presumes that the property is to be enjoyed by ces- 
 
 tui que trust in specie. 
 
 § 452. Of investment. 
 
 § 453. As to investment in personal securities. 
 
 § 454. As to the employment of trust property in trade, business, or specu- 
 
 lation. 
 
 § 455. Rule as to investments in England. 
 
 § 456. Eule in the United States. 
 
 §§ 457, 458. Rule as to real securities. 
 
 § 459. Of investments in the different States. 
 
 §§ 460, 461, Construction, where the instruments of trust direct how investments 
 may be made. 
 
 § 462. Within wliat time investments must be made. 
 
 § 463. Trustees must not mingle their own money in investments. 
 
 § 464. Must not use the trust-money in business. 
 
 § 405. Original investments and investments left by the testator. 
 
 § 406. Changing investments. 
 
 § 467. Acquiescence of cestui <]ue trust in im])ropcr investments. 
 
 § 468. Interest that trustees must pay upon trust funds or any dereliction of 
 duty. 
 
 § 469. When he is directed to invest in a particular manner. 
 
 § 470. When he im])ro])erly changes an investment. 
 
 § 471. When compound interest will be imposed, and when other rules 
 
 will be applied. 
 
 § 472. Rule where an accumulation is directed. 
 
 § 438. The first duty of a trustco, after his appointment 
 and qualification to act, is to secure the possession of the 
 
 613
 
 § 438.] COLLECTION. [CHAP. XV. 
 
 trust property and to protect it from loss and injury. Until 
 possession is properly taken by the trustee the grantor is 
 entitled to the profits of the estate. ^ If the trust property is 
 an equitable interest or estate, he must give notice to the 
 holder of the legal title ; and if he cannot have the legal title 
 transferred to himself, he must take such steps that no in- 
 cumbrances can be put upon it by the settlor or assignor. If 
 the trust fund consists in part of notes, bonds, policies of 
 insurance, and other similar choses in action, notice should be 
 given to the promisors, obligors, or makers of the instruments. 
 This is the general rule in England and in many of the 
 United States. ^ (a) In some States, however, it is held that 
 
 1 Frayser v. Rd. Co., 81 Va. 388. 
 
 "^ Jacob V. Lucas, 1 Beav. 436 ; Wright v. Dorchester, 3 Russ. 49, n.; 
 Timson v. Ramsbottora, 2 Keen, 35; Forster v. Blackstone, 1 Myl. & K. 
 297 ; Roofer v. Harrison, 2 K. & J. 86 ; Loveredge v. Cooper, 3 Russ. 30 ; 
 Dearie v. Hall, id. 1; Meux v. Bell, 1 Hare, 73; Stocks v. Dobson, 4 De 
 G., M. & G. 11 ; Voyle v. Hughes, 2 Sm. & Gif. 18; Ryall v. Rowles, 1 
 Ves. 348 ; 1 Atk. 165; Dow v. Dawson, 1 Ves. 331 ; 3 Lead. Cas. Eq. 612; 
 Jones V. Gibbons, 9 Ves. 410 ; Thompson v. Spiers, 13 Sim, 469; Waldron 
 V. Sloper, 1 Drew. 193; Ex parte Boulton, 1 De G. & J. 163; Pierce v. 
 Brady, 23 Beav. 64 ; Martin v. Sedgwick, 9 Beav. 333; Evans v. Bicknell, 
 6 Ves. 174; Dunster v. Glengall, 3 Jr. Eq. 47; Forster v. Cockerell, 9 
 Bligh (n. s.), 332 ; 3 CI. & Fin. 456 ; Feltham v. Clark, 1 De G. & Sm. 
 307 ; In re Atkinson, 2 De G., M. & G. 140; Mangles v. Dixon, 18 Eng. 
 L. & Eq. 82; Brashear v. West, 7 Pet. 608; Stewart v. Kirkland, 19 Ala. 
 162; Cummings v. Fullara, 13 Vt. 134; Northampton Bank v. Balliet, 
 8 Watts & S. 311; Bean v. Simpson, 4 Shep. 49; Phillips v. Bank of 
 Lewistown, 18 Penn. St. 394 ; Laughlin v. Fairbanks, 8 Mo. 367 ; Campbell 
 V. Day, 16 Vt. 358; Barney v. Douglass, 19 Vt. 98; Ward v. Morrison, 25 
 Vt. 593 ; Loomis v. Loomis, 2 Vt. 201 ; Adams v. Leavens, 20 Conn. 73 ; 
 Van Buskirk v. Ins. Co., 14 Conn. 145; Foster v. Mix, 20 Conn. 895; 
 Bishop V. Ilalcomb, 10 Conn. 444; Woodbridge v. Perkins, 3 Day, 364; 
 Judah V. Judd, 5 Day, 534 ; Murdock v. Finney, 21 Mo. 138 ; Cladfield v. 
 Cox, 1 Sneed, 330; Fisher v. Knox, 13 Penn. St. 622 ; Judson v. Corcoran, 
 17 How. 614. But see Beavan v. Oxford, 6 De G., M. & G. 507 ; Keke- 
 wich V. Manning, 1 De G., M. & G. 176; Clack v. Holland, 24 L. J. 19; 
 Barr's Trusts, 4 K. & J. 219 ; Scott v. Hastings, id. 633 ; Bridge v. Bea- 
 don, L. R. 3 Eq. 664 ; In re Brown's Trusts, L. R. 5 Eq. 88 ; Lloyd v. 
 Banks, L. R. 4 Eq. 222 ; 3 Ch. 488. 
 
 (a) See Stephens r. Green, [1895] 113; 1 Ames on Trusts (2d ed.), 
 2 Ch. 148; Re Patrick, 39 W. R. 320. 
 614
 
 CHAP. XV.] POSSESSION. [§ 438. 
 
 an assignment of a chose in action is complete in itself when 
 the assignor and assignee have completed the transfer, and 
 that notice to the debtor is not necessary in order to make 
 tlio assignment valid as against third persons, or attaching 
 creditors, or subsequent assignees M'itliuut notice.^ 13ut it 
 seems to be agreed in all the cases, that, if the debtor with- 
 out notice and in good faith pays the debt to the assignor, it 
 will be a good i)ayment, and discharge him from further 
 liability;"' but if he should pay after notice he would still be 
 liable to the assignee.^ Under all circumstances, it is safer 
 to give notice to the debtor, whether the courts of a State 
 hold notice necessary or not. If the assignor receive the 
 money of the debtor after the assignment, he will hold the 
 money in trust for the assignee.^ These general rules con- 
 cerning notice do not apply to equities in real estate.^ Trus- 
 tees should also insist upon possession of all the notes, bonds, 
 policies, and other obligations for the payment of money 
 being delivered to them ; for if negligent in this respect, 
 and suits and costs arise, they might be made responsible 
 personally.*^ So, if there are debts or securities already due 
 
 1 Sharpless v. Welch, 4 Dall. 279 ; Bholen v. Cleveland, 1 INIason, 174; 
 Dix V. Cobb, 4 Mass. 508 ; Wood v. Partridge, 11 I\Iass. 488 ; Warren v. 
 Copelin, 4 ISIet. 594 ; Littlefield i'. Smith, 17 Me. 327 ; Corser v. Craig, 1 
 Wash. C. C. 24; United States v. Vaughn, 3 P.inn. 394; Muir v. Schenk, 
 3 Hill, 228; Talbot r. Cook, 7 Mon. 438; IMaybin v. Kirby, 4 Rich. Eq. 
 105; Stevens v. Stevens, 1 Ashm. 590; Beckwith v. Union Bank, 5 Seld. 
 211 ; Conway v. Cutting, 50 N. H. 408 ; Garland v. Harrington, 51 N. H. 
 409. 
 
 2 Reed v. l^Iarble, 10 Paige, 509 ; Mangles v. Dixon, 18 Eng. L. & Eq. 
 82; 1 Mac. & G. 446; 3 II. L. Cas. 739, and cases before cited ; Stocks r. 
 Dobson, 4 De G., M. & G. 11. 
 
 8 Brashear v. West, 7 Pet. G08, and cases before cited ; Judson v. Cor- 
 coran, 17 How. 614. 
 
 4 Ellis V. Amason, 2 Dev. Eq. 273 ; Fortesque v. Barnett, 3 Myl. & 
 K. 36. 
 
 6 Wilmot V. Pike, 5 Hare, 14; Etty v. Bridges, 2 Y, & Col. 486; Ex 
 parte Boulton, 1 De G. & J. 163; Webster v. Webster, 31 Beav. 393; 
 Stevens v. Venables, 30 id. 625 ; Barr's Trusts, 4 K. & J. 219; Van Ren- 
 salaer v. Stafford, Ilopk. Ch. 569; 9 Cow. 316; Poillon v. :Martin, 1 
 Sandf. Ch. 569. 
 
 Fortesciue ;•. Barnett, 3 I\Iyl. & K. 36; Meux v. Bell, 1 Hare, 82; 
 
 615
 
 § 439.] CUSTODY. [CIIAP. XV. 
 
 and payable to the trust estate, the trustees must proceed to 
 collect them. If any loss happens to the estate from any 
 delay, they would be responsible,^ and they may accept pay- 
 ment even before the debts are due.^ Where it is important 
 for the trustees to give notice of an assignment to them, notice 
 to one of several obligors is notice to all : so notice to one of 
 several of a society of underwriters is sufficient; and if the 
 obligors compose a corporation, there must be notice to the 
 directors or trustees of the corporation.^ So, if notice to 
 trustees is necessary in any case, notice to one is sufficient.'* 
 
 § 439. There is no fixed time within which executors are 
 to get in the choses in action of the testator. They must use 
 due diligence ; and what is due diligence depends upon the 
 existing facts in every case, and a large discretion must 
 necessarily be vested in the executor.^ If there is property 
 that cannot be kept without great expense, it should be sold 
 forthwith. If the testator's establishment is expensive, it 
 should be broken up withiu a reasonable time ; and, under 
 special circumstances, two months were held to be reason- 
 able.^ If there are shares or stocks in corporations, the ex- 
 Evans V. Bickuell, 6 Ves. 174; Knye v. Moore, 1 S. & S. 65 ; Lloyd v. 
 Banks, L. R. 4 Eq. 222; 3 Ch. 488. 
 
 1 Caffrey v. Darbey, 6 Ves. 488; McGacheu v. Dew, 15 Beav. 84; Tebbs 
 V. Carpenter, 1 Madd. 298 ; Waring v. Waring, 3 Ir. Eq. 335 ; Platel v. 
 Craddock, C. P. Coop. 481; Wiles v. Gresham, 2 Drew. 258; Grove?;. 
 Price, 26 Beav. 103 ; Rowley v. Adams, 2 H. L. Cas. 725 ; Macken v. 
 Hogan, 14 Ir. Eq. 220; Mucklow v. Fuller, Jac. 198; Powell v. Evans, 
 5 Ves 839 ; Lowson v. Copeland, 2 Bro. Ch. 156 ; Caney v. Bond, 6 Beav. 
 486 ; Cross v. Petree, 10 B. Mon. 413 ; Wolfe v. Washburn, 6 Cow. 261 ; 
 Waring v. Darnall, 10 G. & J. 127 ; Hester v. Wilkinson, 6 Humph. 215 ; 
 Garner v. Moore, 3 Drew. 277; Neff's App., 57 Penn. St. 91. 
 
 2 Mills V. Osborne, 7 Sim. 30. 
 
 8 Timson v. Ramsbottom, 2 Keen, 35 ; Meux v. Bell, 1 Hare, 88 ; Re 
 Styan, 1 Phill. 155 ; Smith v. Smith, 2 Cr. & Mee. 31 ; Duncan v. Cham- 
 berlayne, 11 Sim. 123. 
 
 4 Greenhill v. Willis, 4 De G., F. & J. 147. 
 
 s Waring v. Darnall, 10 G. & J. 127 ; Hughes v. Empson, 22 Beav. 
 188. 
 
 « Field V. Pecket, 29 Beav. 576. 
 616
 
 CHAP. XV.] CUSTODY. [§4^0. 
 
 ecutors must exercise a sound discretion to sell in the most 
 advantageous manner, and at the most advantageous time. 
 In the case of some Crystal Palace shares owned by a testa- 
 tor, a sale within a year was held to be the exercise of a 
 reasonalde discretion, although it was claimed that they 
 ought to have been sold within two months.^ So, where a 
 large part of an estate consisted of Mexican bonds, which 
 the testator directed to be converted "with all convenient 
 speed," it was held that these words added nothing to the 
 implied duty of every executor to convert such property with 
 all reasonable speed ; that a conversion in the course of the 
 second year was proper and reasonable ; that if executors 
 were bound to sell at once without reference to the circum- 
 stances, there would often be a great sacrifice of property, and 
 therefore that executors were bound to exercise a reasonable 
 discretion^ according to the circumstances of each case.^ But 
 generally stock should be sold within the year allowed for 
 the settling of a testator's estate, and a delay beyond this 
 time may render the executors or trustees liable for the 
 loss, although they act in good faith, and although some of 
 the trustees became of age only a short time before the 
 sale. 2 If, however, it is clear that the trustees have a dis- 
 cretion to sell or not according to their judgment, the 
 case will be governed by the intention and not by the 
 general rule.^ 
 
 § 440. Personal securities change from day to day ; and 
 as the death of the testator puts an end to his discretion in 
 regard to them, unless he has exercised it in his will, the 
 executor or trustee will become personally liable, if he does 
 
 1 Hughes V. Empson, 22 Beav. 138; Bate v. Hooper, 5 De G., M. & G. 
 338; Wilkinson r. Duncan, 2G L. J. (n. s.) Ch. 405. 
 
 2 Buxton V. Buxton, 1 M. & C. 80 ; Prendergast r. Lushington, 5 Hare, 
 171; Hester v. Wilkinson, 6 Humph. 215; Waring v. Darnall, 10 G. & J. 
 127. 
 
 8 Sculthorpe v. TifEer, L. R. 13 Eq. 238 ; Grayburn i'. Clarkson, L. R. 
 3 Ch. G05. 
 
 * Mackie v. Mackie, 5 Hare, 70 ; Wrey v. Smith, 11 Sim. 202 ; Spar- 
 ling V. Parker, 9 Beav. 524. 
 
 617
 
 § 440.] CUSTODY. [chap. XV. 
 
 not get in the money within a reasonable time.^ He must 
 not allow the assets to remain out on personal security,2(a) 
 though it was a loan or investment by the testator himself.^ 
 It is not enough for the executor to apply for payment 
 through an attorney : he must follow the collection actively 
 by legal proceedings/ unless he can show that such proceed- 
 ings would have been futile and vain.^ An executor must 
 take the same steps when his coexecutor is a debtor to the 
 estate, even if the testator has been in the habit of deposit- 
 ing or lending money to the coexecutor as to a banker.^ 
 Executors are not justified in dealing with a testator's money 
 as he dealt with it himself, nor may they trust all the per- 
 sons that he trusted. Nor will a direction in the will "to 
 call in securities not approved by them " excuse executors 
 from not calling in personal securities ; for such direction 
 refers to the different kinds of securities sanctioned by law 
 
 1 Bailey v. Young, 4 Y. & Col. Ch. 226; Will's App., 22 Penn. St. 
 330; Mucklow v. Fuller, Jac. 198; Tebbs v. Carpenter, 1 Madd. 297. 
 
 2 Lowson V. Copeland, 2 Bro. Ch. 156; Caney ?». Bond, 6 Beav. 486; 
 Att. Gen. v. Higham, 2 Y. & Col. Ch. 634; Hemphill's App., 18 Penn. 
 St. 303. 
 
 3 Powell V. Evans, 5 Ves. 839 ; Bullock v. Wheatley, 1 Col. C. C. 130 ; 
 Tebbs V. Carpenter, 1 Madd. 298; Clough v. Bond, 3 Myl. & Cr. 496; 
 Hemphill's App., 18 Penn. St. 303; Fray's App., 34 id. 100; Barton's 
 App., 1 Pars. Eq. 24, is overruled; Kimball v. Reading, 11 Foster, 352. 
 In England, bank stock must be converted. Mills v. Mills, 7 Sim. 509; 
 Howe V. Dartmouth, 7 Ves. 150; Price v. Anderson, 15 Sim. 473. 
 
 * Lowson V. Copeland, 2 Bro. Ch. 156; Horton v. Brocklehurst, 29 
 Beav. 511 ; Paddon v. Richardson, 7 De G., M. & G. 563; Wolfe v. Wash- 
 burn, 6 Cow. 261. 
 
 6 Clack V. Holland, 19 Beav. 262 ; Hobday v. Peters, 28 id. 603 ; Alex- 
 ander V. Alexander, 12 Ir. Eq. 1; ]\Iaitland v. Bateman, 16 Sim. 233, and 
 note; Walker v. Symonds, 3 Swanst. 71; East r. East, 5 Hare, 343; 
 Ratcliff V. Wynch, 17 Beav. 217; Ball v. Ball, 11 Ir. Eq. 370 ; Styles v. 
 Guy, 16 Sim. 232; Billing v. Brogden, 38 Ch. D. 546. 
 
 « Styles V. Guy, 1 Mac. & G. 428 ; 1 Hall & Tw. 523 ; Egbert v. Butter, 
 21 Beav. 560; Candler v. Tillett, 22 Beav. 257 ; Mucklow v. Fuller, Jac. 
 198. 
 
 (a) Unless so directed by the Harris, 84 N. Y. 89, reversing s. c. 
 creator of the trust. Denike r. 23 Hun, 213. 
 618
 
 CHAP. XV.] CUSTODY. [§ 440. 
 
 and the court, and not to all investments outside the sanc- 
 tions of the law. ^ If the executors are to get in the money 
 "whenever they think proper and expedient," they will be 
 liable for the fund if they allow it to remain uncollected out 
 of kindness or rcj^ard for the tenant for life, and not ujjon 
 an impartial judgment for the best interest of all the parties. ^ 
 If the outstanding debt is secured by a real mortgage, it 
 ought not to be called in, if it is safe, until it is wanted in 
 the course of the administration. ^ But pains should be 
 taken to ascertain whether the security is safe.'* If the mort- 
 gage security is not adequate, the executor or trustee must 
 insist upon payment, even where the cestui que trust is to 
 consent to every change of investment, and he refuses to con- 
 sent; for nothing will justify conduct that endangers the 
 fund.^ But if the fund is safe on a security sanctioned by 
 the court and selected by the testator, it might be a breach 
 of trust to call it in, and allow it to remain unproductive, 
 or to invest it anew." (a) But if trustees are ordered by the 
 court to call in securities, and they neglect to do so, they 
 will be lialjle for any loss that occurs.'' So, if trustees com- 
 promise a debt due from a bankrupt estate, they must show 
 that the bankrupt would have obtained his discharge, and 
 that it was impossible to get the whole debt, or they will be 
 liable for the loss.^ If the trustee himself owes the estate, 
 he must treat his indebtedness as assets collected, and if he 
 becomes bankrupt, he must prove the debt against himself, 
 or he will be liable, even if he gets his discharge.^ But in 
 
 1 Styles V. Guy, 1 Mac. & G. 428 ; Scully v. Delany, 2 Ir. Eq. 165. 
 
 2 Luther v. Bianconi, 10 Ir. Ch. 104. 
 
 « Orr V. Newton, 2 Cox, 274 ; Howe v. Dartmouth, 7 Ves. 150 ; Robin- 
 son V. Robinson, 1 De G., M. & G. 252. 
 * Ames r. Parkinson, 7 Beav. 384. 
 ^ Harrison v. Thexton, 4 Jur. (n. s.) 550. 
 « Orr I'. Newton, 2 Cox, 276. 
 ' Davenport v. Stafford, 14 Beav. 338. 
 
 8 Wiles V. Gresham, 2 Dr. 258; 5 De G., M. & G. 770. Lord Justice 
 Turner expressed a doubt, whether the trustees should have been charged, 
 without further inquiry. Bacot r. Hayward, 5 S. C. 441. 
 
 9 Orrett v. Corser, 21 Beav. 52; Prindle v. Holcombe, 45 Conn. Ill; 
 
 (a) See Re Hurst, 65 L. T. C65. 
 
 619
 
 s 
 
 441.] CUSTODY. [CIIAP. XV. 
 
 the United States bankrupts are not discharged from any 
 liabilities which they are under in a fiduciary capacity. 
 
 § 441. It was observed in Harden v. Parsons,^ that no man 
 can require, or with reason expect, that a trustee should 
 manage another's property with the same care and discre- 
 tion as his own. But this is neither sound morality nor 
 good law. A trustee must use the same care for the safety 
 of the trust fund, and for the interests of the cestui que trusty 
 that he uses for his own property and interests. ^ And even 
 this will not be sufficient if he is careless in his own con- 
 cerns ; for a trustee must in all events use such care as a man 
 of ordinary/ prudence uses in his own business of a similar 
 nature.^ Thus, where a trustee had X200 of his own money, 
 and £40 of trust-money, in his house, and he was robbed by 
 his servant, he was not held responsible.^ And where a 
 trustee deposited articles with his solicitor, to be passed 
 over to a party entitled to them, and the articles were stolen, 
 the trustee was not held responsible.^ But if a trustee em- 
 ploys an agent, and the agent steals or appropriates the prop- 
 erty intrusted to him, the trustee will be held responsible ; 
 that is, the trustee is not responsible for the crimes of stran- 
 
 Ipswich Manuf. Co. v. Story, 5 Met. 310; Chenery v. Davis, 16 Gray, 89; 
 Ilazelton v. Valentine, 113 Mass. 472; Pettee v. Peppard, 120 Mass. 523. 
 The acceptance of the trust requires him to treat an indebtedness for 
 which he was previously responsible as assets collected. Stevens r. Gay- 
 lord, 11 Mass. 269 ; Ips. Manuf. Co. v. Story, 18 Pal. 236 ; 1 Allen, 531, 
 10 Cush. 176 ; 120 Mass. 523. 
 
 1 1 Eden, 148. 
 
 2 Morley v. Morley, 2 Ch. Cas. 2 ; Jones v. Lewis, 2 Ves. 241; Massey 
 V. Banner, 1 J. & W. 247 ; Att. Gen. v. Dixie, 13 Ves. 534 ; Ex parte 
 Belchier, Amb. 220; Ex parte Griffin, 2 G. & J. 114 ; Taylor v. Benham, 
 5 How. 233; King v. Talbott, 50 Barb. 4.53; 40 N. Y. 86; Miller r. Proc- 
 tor, 20 Ohio St. 444 ; Neff's App., 57 Peun. St. 91; King v. King, 37 Ga. 
 205; Campbell v. Campbell, 38 Ga. 304; Roosevelt w. Roosevelt, 6 Abb. 
 (N. Y.) N. Cas. 447 ; Gould v. Chappell, 42 Md. 466 ; Carpenter v. Car- 
 penter, 12 R. I. 544 ; Davis v. Harmon, 21 Grat. 194. 
 
 8 Woodruff V. Snedecor, 68 Ala. 442. 
 * Morley v. Morley, 2 Ch. Cas. 2. 
 
 6 Jones V. Lewis, 2 Ves. 240 ; Foster v. Davis, 46 Mo. 268. 
 620
 
 CHAP. XV.] CUSTODY. [§ 443. 
 
 gers, but he is responsible for the criminal acts of agents 
 employed by himself about the trust fun(l,^(«) and for any 
 loss that may fall upon the estate by the forgery of a signa- 
 ture upon which he pays money. ^ 
 
 § 442. Several trustees, residing in different places, can- 
 not all have the custody of the same articles ; therefore it is 
 said that articles of plate, which pass by delivery, and stocks 
 and bonds, })ayablc to the bearer, with coupons to be cut 
 off for the interest, should be deposited at a responsible 
 banker's.^ 
 
 § 443. A trustee may deposit money temporarily in some 
 responsible bank or banking-house;^ and if he acted in good 
 faith and with discretion, and deposited the money to a trust 
 account, he will not be liable for its loss, as where the bank 
 failed in consequence of war;^ but he will be liable for the 
 money in case of a failure of the bank, or for its depreciation, 
 if he deposits it to his own credit, and not to the separate 
 account of the trust estate,*^ even though he had no other 
 
 1 Bostock V. Floyer, L. R. 1 Eq. 28; Hapgood ». Perkins, L. R. 11 
 Eq. 74. 
 
 2 Eaves v. Hickson, 30 Beav. 136. 
 
 8 Mendes v. Guedalla, 2 John & H. 259. 
 
 * Rowth V. Howell, 3 Ves. Jr. 505; Jones v. Lewis, 2 Ves. 241; Adams 
 V. Claxton, 6 Ves. 226; Ex parte Belchier, Arab. 219; Att. Gen. v. Ran- 
 dall, 21 Vin. Ab. 534; Massey v. Banner, 1 J. & W. 248; Ilorsley v. 
 Chaloner, 2 Ves. 85 ; France v. Woods, Taml. 172 ; Dorchester v. Effing- 
 ham, id. 279; Freme v. Woods, id. 172; Wilks v. Groome, 3 Dr. 584; 
 Johnston v. Newton, 11 Hare, 160 ; Swinfen v. Swinfen, 29 Beav. 211. 
 
 8 Douglas V. Stephenson's Ex'r, 75 Va. 749. 
 
 6 Wren v. Kivton, 11 Ves. 377; Fletcher v. Walker, 3 Madd. 73; I\Iac- 
 donnell v. Harding, 7 Sim. 178; Mathews v. Brise, 6 Beav. 239; IMassey 
 r. Banner, 1 J. & W. 241 ; see remarks on this case in Pennell v. Deffell, 
 4 De G., M. & G. 386, 392 ; School Dis. Greenfield v. First National 
 Bank, 102 Mass. 174 ; Mason v. Whitehorn, 2 Cold. 242. 
 
 (a) In Jobson v. Palmer, [1893] employment of a servant was neces- 
 
 1 Ch. 71, it was held that a trustee, sary, and the trustee has used due 
 
 even when remunerated for his ser- care in selecting him. See supra, 
 
 vices, is not liable for his servant's § 246, n. 
 theft of trust property, when the 
 
 621
 
 § 444.] CUSTODY. [chap. XV. 
 
 funds in bank, and told the officers at the time of deposit 
 that the funds were held by him in trust. ^ (a) So if he allows 
 another person to draw upon the fund and misapply the 
 money ;^ so if he deposits the money in such manner that it 
 is not under his own exclusive control, as where money is 
 deposited in bank so that it cannot be drawn without the 
 concurrence of other persons, the trustee will be liable for 
 the failure of the bank, on the principle that it is the duty of 
 the trustee to withdraw the money from the bank upon the 
 slightest indication of danger or loss, and he cannot per- 
 form this duty promptly if he is clogged by the necessity of 
 procuring the concurrent action of other persons.^ So he 
 will be liable if he keeps money in bank an unreasonable 
 length of time, or where it is his duty to invest the fund in 
 safe securities,* or to pay it over to newly appointed trustees,^ 
 or into court ;^ or if, having no occasion to keep a balance on 
 hand for the purposes of the trust, he lends the money to the 
 bank on interest upon personal security, that being a security 
 not sanctioned by the court. '^ 
 
 § 444. Trustees may leave money in the custody of third 
 persons when it is necessary in the course of business, as 
 where money is left in the hands of an auctioneer as agent 
 of both parties on a sale or purchase;^ and during the nego- 
 
 1 William's Adm'r v. Williams, 55 Wis. 300. 
 
 2 Ingle V. Partridge, 32 Beav. 661 ; 34 id. 411. 
 
 8 Salway v. Salway, alias White v. Baugh, 2 R. & M. 215 ; 9 Bligh, 181 ; 
 3 CI. & Fin. 44; overruling same case, 4 Russ. 60. 
 
 4 Moyle V. Moyle, 2 R. & M. 710; Johnston v. Newton, 11 Hare, 169. 
 
 6 Lunham v. Blundell, 4 Jur. (x. 8.) 3. 
 
 8 Wilkinson v. Bewick, 4 Jur. (n. s.) 1010. 
 
 ' Darke v. Martyn, 1 Beav. 525. 
 
 8 Edmonds v. Peake, 7 Beav. 239, 
 
 (a) See Arguello's Estate (Cal.), id. 61; Munnerlyn ?'. Augusta S. 
 
 31Pac. 937; Booth v. Wilkinson, 78 Bank, 88 Ga. 333; Key v. Hughes, 
 
 Wis. 652; O'Connor v. Decker, 95 32 W. Va. 184; Moore v. Eure, 101 
 
 Wis. 202; Baer's Appeal, 127 Penn. N. C. 11 ; Atterberry v. McDuffee, 
 
 St. 360; Milmo's Succession, 47 La. 31 Mo. App. 603; 1 Ames on Trusts 
 
 Ann. 126 ; Barrett's Succession, 43 (2d ed.,) 481-483, notes. 
 622
 
 CHAP. XV.] CUSTODY. [§ 444. 
 
 tiation of an investment, the trustees may buy exchequer 
 bills ;^ but if they leave the exchequer bills undistinguished 
 in the hands of a banker or broker, they will be liable for the 
 loss of the money. 2 But if trustees deposit money in bank 
 to their own credit ;3 or if they leave it for an unreasonable 
 time, as a year after the testator's death and after all debts 
 and legacies are paid;* or if they place their papers and re- 
 ceipts in the hands of their solicitor, so that he can receive 
 their money and misapply it;^ or if the money is so paid 
 into bank that it may be drawn out upon the check of one 
 trustee and misapplied;^ or if they neglect to sell property 
 when it ought to have been sold," or suifer money to remain 
 upon personal security,^ or upon an unauthorized security;^ 
 or if the money is left improperly or unadvisedly in the 
 hands of a coexecutor or cotrustee, so that he has an oppor- 
 tunity to misapply it, — all the trustees will be responsible for 
 any loss that may occur to the trust fund.^*^ So trustees are 
 liable for the attorneys and solicitors whom they employ; as 
 where they employ a solicitor to examine the title to a pro- 
 posed mortgage, and they are misled by him in such manner 
 that a loss occurs to the estate, they are liable to make it 
 good." 
 
 1 Mathews v. Brise, 6 Beav. 239. 
 
 2 Ibid. 
 
 8 Massey V. Banner, 1 J. & W. 241; Wren v. Kirton, 11 Ves. 377; 
 Mason v. Whitehorn, 2 Cold. 242. 
 
 4 Ibid. 
 
 6 Ghost V. Waller, 9 Beav. 497 ; Rowland v. Witherden, 3 Mac. & G. 
 568. 
 
 6 Clourrh v. Bond, 3 Myl. & Cr. 490 ; Clough v. Dixon, 8 Sim. 594. 
 
 ^ Phillips V. Phillips, Freem. Ch. 11. 
 
 8 Powell V. Evans, 5 Ves. 839 ; Tebbs v. Carpenter, 1 Madd. 290. 
 
 ^ Hancom v. Allen, 2 Dick. 498 and n. ; Howe?'. Dartmouth, 7 Ves. 
 137. 
 
 10 Langford r. Gascoyne, 11 Ves. 333; Shipbrook v. Hinchinbrook, id. 
 252; IG Ves. 478; Underwood v. Stevens, 2 Mer. 712; Hardy v. Metro- 
 politan Land Co., L. R. 7 Ch. 429. 
 
 " Hapgood V. Perkins, L. R. 11 Eq. 74; Bostock v. Floyer, L. R. 1 
 Eq. 26. 
 
 623
 
 § 447.] CUSTODY. [chap. XV. 
 
 § 445. In one case it was said, that an executor would 
 not be liable if he had placed money in bank under the 
 control of a coexecutor. The money was entered on joint 
 account, but the individual checks of the coexecutors could 
 draw it out. This was held to be the ordinary and reason- 
 able course of business.^ If, however, there is any fraud, 
 collusion, or wilful default, or gross neglect, or if the exec- 
 utor has any reason to interfere, and does not put a stop to 
 the mismanagement of his coexecutor, he will be held liable.^ 
 The case of Kilbee v. Sneyd, however, is so doubtful on this 
 point, and contrary to authority, that it would be unsafe to 
 act upon it. 3 
 
 § 446. Trustees and executors have a reasonable time to 
 wind up a testator's estate, and make investments ; and they 
 may, without responsibility, keep the money in a reliable 
 bank for one year after the death of the testator ; * but if they 
 draw the money out of bank, and make any irregular invest- 
 ment, or lend it to another bank on interest, they will be re- 
 sponsible for the loss of the money, even if the will directs 
 that the trustees shall not be responsible for losses by a 
 banker; the construction of such direction being that the 
 trustees shall not be liable for loss of money deposited with a 
 banker in the ordinary manner.^ 
 
 § 447. The trustee must not mingle the trust fund with 
 his own. If he does, the cestui que trust may follow the trust 
 property, and claim every part of the blended property which 
 the trustee cannot identify as his own.^ 
 
 1 Kilbee v. Sneyd, 2 Moll. 186. 
 
 2 Ibid. 203, 21.3. 
 
 3 Clough V. Dickson, 8 Sim. 594; 3 Myl. & Cr. 490; Gibbons v. Taylor, 
 22 Beav. 344; Ingle v. Partridge, 32 Beav. 661; 34 Beav. 411. 
 
 * Johnston v. Newton, 11 Hare, 160; Swinfen v. Swinfen, 29 Beav. 
 211 ; Wilks v. Groome, 3 Dr. 584. 
 
 5 Rehden v. Wesley, 29 Beav. 213. 
 
 « Lupton V. White, 15 Yes. 432, 440; Chedworth v. Edwards, 8 Ves. 
 46; White r. Lincoln, id. 363; Fellowes v. Mitchell, 1 P. Wms. 83; Gray 
 V. Haig, 20 Beav. 219 ; Leeds v. Amherst, id. 239 ; Mason v. Morley, 34 
 624
 
 CHAP. XV.] 
 
 CONVERSION. 
 
 [§ 448. 
 
 § 448. There may be express trusts for conversion; that 
 is, to sell the trust fund, as it exists at the time of the tes- 
 tator's decease, and convert the same into some other kind 
 of property or investment ;((^/) and there may be an express 
 trust to allow the cestuis que tru.st the use and enjoyment of 
 the specific property devised. Both of these forms of trust 
 must Ije strictly executed, and generally no question arises 
 upon them. But a question sometimes arises from the situ- 
 ation and character of the property, and the relations of the 
 cestuis que trust to it, whether the trustee is to convert the 
 property into another form, or allow the cestuis que trust to 
 
 Beav. 471, 475; Cook v. Addison, L. R. 7 Eq. 470; Morrison i-. Kinstra, 
 55 Miss. 71. 
 
 (a) Conversion may be immedi- 
 ate ; or it may take place upon the 
 death of the creator of the trust, as 
 wlien he makes a deed of property 
 subject to a Ufe-estate for himself. 
 See Att. Gen. v. Dodd, [1894] 2 Q. 
 B. 150; Paisley v. Holzshu, 83 Md. 
 325 ; Crane v. Bolles, 49 N. J. Eq. 
 373; Thomraan's Estate, Kil Penn. 
 St. 444 ; Smith r. Loewenstein, 50 
 Ohio St. 346; In re Holder (R. I.), 
 41 Atl. 57G; Benbow v. Moore, 114 
 N. C. 263 ; Dodge v. Williams, 46 
 Wis. 70; Penfield v. Tower, 1 N. 
 Dak. 216. In Pennsylvania, a tes- 
 tator's express direction in his will 
 that his executor sell all his real 
 estate at tlie end of twenty years 
 works a conversion thereof as of the 
 time of his death. Ilandley v. Pal- 
 mer, 91 F. R. 948; Williamson's 
 Estate, 153 Penn. St. 508. 
 
 " The doctrine of equitable con- 
 version is simply an application 
 of the fundamental principle that 
 equity regards that as done which 
 ought to be done. . . . Conversion 
 is effected by a sale. Equitable 
 conversion is effected by a power 
 VOL. I. — 40 
 
 to sell and a duty to sell. It is not 
 enough to manifest an intent that 
 lands shall pass as money, unless 
 there is also, either in terms or by 
 implication, a grant of the moans of 
 turning it into money." Per Bald- 
 win, J., in Clarke's Appeal, 70 Conn. 
 195, 215, 217. 
 
 The conversion always relates 
 back to the earliest possible mo- 
 ment, as to the date of the contract 
 giving an option, and it applies to 
 an intestacy, even when the option 
 to purchase is exercisable only after 
 the grantor's death. Lawes v. Ben- 
 nett, 1 Cox, 167; In re Isaacs, [1S94] 
 3 Ch. 506; Williams v. Haddock, 
 145 N. Y. 144. But no conversion 
 is effected by an instrument which 
 is invalid, or which fails of its pur- 
 pose. Moore v. Bobbins, 53 N. J. 
 Eq. 137. When, however, there has 
 been a partial failure of the trusts 
 created by will, and a partial con- 
 version has been made, the heir 
 may take the property, by way of 
 resulting trust, in the state into 
 which it was converted by the will. 
 In re Richerson, [1892] 1 Ch. 379. 
 625
 
 § 449.] 
 
 CONVEKSION. 
 
 [chap. XV. 
 
 enjoy it iii specie : tliat is, the court is left to infer or imply, 
 from the construction of the instrument, the character of the 
 property and the relations of the cestuis que trust, whether it 
 was the intention of the testator that the property should be 
 converted, or whether the beneficiaries should take the use of 
 it specifically, according to the terms in which it is given. 
 All such cases must be determined by their own facts and 
 the construction of the instrument under which the trust 
 exists. 1 (a) 
 
 § 4-19. A court of equity has authority to decree the con- 
 version of a trust fund from personal to real estate, {h) or, 
 1 Hidden v. Hidden, 103 Mass. 59. 
 
 (a) There is no conversion merely 523; Roy v. Monroe, 47 N. J. Eq. 
 of a request or direction therefor, 356 ; Gould v. Taylor Orphan Asy- 
 or of a discretionary power to sell, lum, 46 Wis. 106 ; Ramsey v. Han- 
 See Goodier v. Edmunds, [1893] 3 Ion, 33 F. R. 425 ; Merritt v. Mer- 
 Ch. 455; In re Pyle, [1895] 1 Ch. ritt, 53 N. Y. S. 127. 
 724; Basset v. St. Levan, 71 L. T. The courts of a testator's domicil 
 
 718; Re Bingham, 127 N. Y. 296; are to determine, as to land within 
 Chapin, petitioner, 148 Mass. 588; their jurisdiction, the question 
 Carney ?'. Kain, 40 W. Va. 758; whether an equitable conversion 
 
 R. I. Hospital Trust Co. v. Harris 
 (R. I.), 39 Atl. 750 ; Machemer's 
 Estate, 140 Penn. St. 544 ; Darling- 
 ton V. Darlington, 160 id. 65; In- 
 
 was uitended by his will. Clarke's 
 Appeal, 70 Conn. 195. 
 
 (h) When personal estate is di- 
 rected by the will to be applied in 
 
 gersoll's Estate, 167 id. 536 ; SoUi- purchasing real estate, it is im- 
 
 day's Estate, 175 id. 114; Ness i'. 
 Davidson, 49 Minn. 469; Cobb's 
 Estate, 36 N. Y. S, 448; Allen v. 
 Stevens, 49 id. 431 ; In re Hosford, 
 50 id. 550 ; Wheless v. Wheless, 92 
 Tenn. 293 ; Ford v. Ford, 70 Wis. 
 19; McHugh v. McCole, 97 Wis. 
 166. A direction, when explicit 
 
 pressed with a trust for that pur- 
 pose, is treated as real estate, and 
 passes under a devise of land. 
 Ackroyd v. Smithson, 1 Bro. C. C. 
 503; Cleveland's Settled Estates, 
 [1893] 3 Ch. 244; see McFadden v. 
 Hefley, 28 S. C. 317; Household 
 S. M. Co. V. Vaughan, 17 N. Y. St. 
 
 and positive, or a trust for sale, Rep'r, 332; see 1 Ames on Trusts 
 when absolute and necessary, will, (2ded.), 491, n. When, however, 
 
 money is charged on land for the 
 testator's widow, and she declines 
 to take under the will, and has 
 dower, the money remains personal 
 estate. Becker's Estate, 150 Penn. 
 St. 524. 
 
 however, work a conversion. Ibid. ; 
 Goodier w. Edmunds, supra; Beck- 
 er's Estate, 150 Penn. St. 524; 
 Fahnestock v. Fahnestock, 152 id. 
 56 ; Re Gantert, 136 N. Y. 106 ; 
 Underwood v. Curtis, 127 N. Y. 
 626
 
 CHAP. XV.] CONVERSION. [§ 450. 
 
 vice versa, where such conversion is not contrary to the will 
 of the donor expressly or impliedly, and is lor the interest 
 of the cestui.^ The general rule is, that where the testator 
 gives his personal property, or the residue of his personal 
 property, or the interest of his personal property, ^ in trust, 
 or directly to several persons in succession,^ and the property 
 is of such a nature that it grows less valuable by time, as 
 where it is leaseholds or annuities, or where the property is 
 wasted or consumed in the use of it, the court implies an in- 
 tention that such property shall be converted into a fixed 
 and permanent form, so that the beneficiaries may take the 
 use and income of it in succession, (a) Accordingly, in 
 England, such property is converted into the investments 
 allowed by law; and in the United States it must be con- 
 verted into safe investments, according to the rules in force 
 in the State where the trust is to be administered ; and if the 
 trustees fail to do so in a reasonable time, they will be guilty 
 of a breach of trust. ^ 
 
 § 450. The court presumes an intention that perishable 
 property shall be converted, where several persons are to 
 enjoy it in succession; not so much from the actual fact of 
 such an intention, as from its being a convenient means of 
 adjusting the rights of those who are to enjoy the property 
 in succession.^ This presumption is made, unless a contrary 
 intention is indicated upon the face of the will. The later 
 authorities give effect to slighter indications than the older 
 
 ^ Ex parte Jordan, 4 Del. Ch. 615. 
 
 ^ Howe V. Dartmouth, 7 Ves. 137 ; Cranch v. Cranch (cited id. 142, 
 147; Litchfield v. Baker, 2 Beav. 481; Crowley v. Crowley, 7 Sim. 427; 
 Sutherland r. Cook, 1 Col. C. C. 498; Johnson v. Johnson, 2 Col. C. C. 
 441) ; Fearns v. Young, 9 Ves. 549 ; Benn v. Dixon, 10 Sim. 030 ; Oakes r. 
 Strachey, 13 Sim. 414. 
 
 " House V. Way, 12 Jur. 959. 
 
 " Bate V. Hooper, 5 De G., M. & G. 338; seejoo,9/. Chap. XVITI. 
 
 6 Cape V. Bent, 5 Hare, 35; Pickering i: Pickering, 4 Myl. & Cr. 303 ; 
 Hinves v. Hinves, 2 Hare, 611; Prendergast v. Prendergast, 3 H. L. Cas. 
 195; see Cotton v. Cotton, 14 Jur. 950. 
 
 (a) Pyott's Estate, 160 Penn. St. 441. 
 
 627
 
 § 450.] CONVERSION. [chap. XV. 
 
 cases. ^ The object of the rule is to secure a fair adjustment 
 of the rights of all the cestuis que trust in succession; for if 
 the property would greatly depreciate in value in the hands 
 of the first taker, the remainder-man might fail to receive 
 the benefit intended to be given to him ; the court, therefore, 
 orders the perishable property to be converted into a perma- 
 nent fund, unless a contrary intention is indicated in the 
 will. So, if property, not liable to waste, but bearing a high 
 rate of interest, and subject to great risks, is given to one 
 person for life, and to another in remainder, the beneficiary 
 in remainder may call for a conversion of the stocks or bonds 
 into a less hazardous and more permanent investment, that 
 their interests may be better protected ;2 but the court will 
 not call in real securities without directing an inquiry 
 whether it is necessary for the safety or benefit of all par- 
 ties.^ On the other hand, the court applies the same princi- 
 ples to the protection of the first taker or tenant for life ; and 
 so, if there are reversionary interests that may not fall in 
 and become beneficial to the tenant for life, but may come 
 into the possession of the remainder-man, the court may order 
 the reversions to be sold, and the purchase-money to be in- 
 vested, so that the tenant for life may have the income for life.* 
 And if the trustees have a discretion as to the time of sale, 
 which the court cannot control, and they sell when the rever- 
 sion falls in, the court will give the tenant for life the differ- 
 ence between the actual price for which the reversion sold, 
 and its estimated value one year after the testator's death. ^ (a) 
 
 1 Morjran v. Morgan, 14 Beav. 82 ; Craig v. Wheeler, 29 L. J. Ch. 
 374; Mackiet?. Mackie, 5 Hare, 77; VVightwick v. Lord, 6 H. L. Cas. 217; 
 Blann v. Bell, 5 De G. & Sm. 658; 2 De G., M. & G. 775; Burton v. 
 Mount, 2 De G. & Sm. 383; Howe v. Howe, 14 Jur. 359; 2 Spence, Eq. 
 Jur. 42, 554. 
 
 2 Thornton v. Ellis, 15 Beav. 193; Blann v. Bell, 5 De G. & Sm. 658; 
 2 De G., M. & G. 775 ; Wightwick v. Lord, 6 H. L. Cas. 217. 
 
 8 Howe V. Dartmouth, 7 Ves. 150. 
 
 * Ibid. ; Fearns v. Young, 9 Ves. 549; Dimes v. Scott, 4 Buss. 200. 
 
 s Wilkinson v. Duncan, 23 Beav. 469. 
 
 (o) When there is no undue de- verting land into invested money 
 lay on the part of trustees in con- for the benefit of the tenant for life, 
 628
 
 CHAP. XV.] CONVERSION. [§ 451. 
 
 § 451. On the other hand, an intention may be implied 
 from the form or terms of the gift, that the property is to be 
 enjoyed by the cestuis que trust in specie; as, if there is a 
 specific gift of leaseholds or of stocks, the specific legatee 
 will take the rents and dividends of the specified property.* 
 A general direction to pay rents to the tenant for life, after 
 the mention of leaseholds, is a specific devise ; ^ but it is still 
 a matter of doubt upon the authorities, whether such a direc- 
 tion, unconnected with any mention of the leaseholds, is a 
 specific devise or not.^ A mere direction to pay dividends 
 is not a specific devise of the stocks.* But a bequest of the 
 "interest, dividends, or income of all moneys or stock, and 
 of all other property yielding income at the testator's death," 
 has been held to be specific, and the trustees could not 
 
 1 Vincent v. Newcombe, Younge, 599 ; Lord v. Godfrey, 4 Madd. 455; 
 Pickering v. Pickering, 4 Myl. & Cr. 299 ; Hubbard v. Young, 10 Beav. 
 205 ; Harris v. Poyner, 1 Dr. 181 ; Mills v. Mills, 7 Sim. 501 ; Dunbar r. 
 "Woodcock, 10 Leigh, G28 ; Harrison v. Foster, 9 Ala. 955 ; Ilale r. Burro- 
 dak", 1 Eq. Ca. Ab. 461; Bracken v. Beatty, 1 Rep. in Ch. 110; l>ans r. 
 Iglehart, 6 G. & J. 171 ; Alcock v. Sloper, 2 Myl. & K. 702; Pickering i;. 
 Pickering, 2 Beav. 57. 
 
 2 Blann v. Bell, 2 De G., M. & G. 775 ; Crowe v. Crisford, 17 Beav. 
 507 ; Hood v. Claphan), 19 Beav. 90; Marshall v. Brenner, 2 Sm. & (iif. 
 237; Elmore's Trusts, 6 Jur. (n. s.) 1325. 
 
 ' Goodenough v. Treniamondo, 2 Beav. 512 ; Hunt v. Scott, 1 De G. & 
 Sm. 219; Wearing r. "Wearing, 23 Beav. 99; Pickup v. Atkinson, 4 Hare, 
 624 ; Craig v. "Wheeler, 29 L. J. Ch. 374 ; Vachell v. Roberts, 32 Beav. 140; 
 Harvey v. Harvey, 5 Beav. 134; Att. Gen. v. Potter, id. 164. 
 
 * Xeville v. Fortescue, 16 Sim. 333 ; Blann v. Bell, 2 De G., ]\L & G. 
 775; Sutherland v. Cook, 1 Col. C. C. 503; Hood f. Clapham, 19 Beav. 90. 
 
 the tenant for life is entitled to the end of a year from the testator's 
 
 rents accrued between the time death. In re Game, [1897] 1 Ch. 
 
 when the trust for conversion takes 881. An implied trust for sale 
 
 effect and the time when the con- may work a conversion. See In re 
 
 version is actually effected. Hope Wintle, [1896] 2 Ch. 711. A dis- 
 
 V. D'lledouville, [1893] 2 Ch. 3(51. cretion given to trustees as to the 
 
 A power of distress or a direction to time of sale shows an intention that 
 
 pay rents do not sufficiently show the property is not to be iinmedi- 
 
 an intention that leaseholds are to ately converted. In re Pitcairu, 
 
 be enjoyed in specie, but these are [1896] 2 Ch. 199. 
 properlv treated as converted at the 
 
 629
 
 § 451.] CONVEESION. [chap. XV. 
 
 convert.^ (a) If the devise is specific, the direction to vary 
 the securities will not affect the rights of a specific legatee, 
 for such direction is only for the protection of the trust fund.^ 
 A debt due to a testator is not devised specifically, although 
 it is embraced in the residue of an estate specifically devised, 
 as it is in no sense in the nature of an investment, and is 
 therefore to be converted.^ And if a testator use any ex- 
 pression implying that leaseholds or stocks or other property 
 are not to be converted, as if he names a time for the sale of 
 them, as at or after the death of the tenant for life, the trus- 
 tees will have no power to convert the property until the 
 time arrives.* But where a testator gave to his wife the 
 whole of the interest arising from his property, both real and 
 personal, during her life, and at her decease to be disposed 
 of as therein directed, it was held that the trustees must 
 convert, as there was no indication that she should enjoy 
 any of the property in specie. ^ (b) 
 
 1 Boys V. Boys, 28 Beav. 436. 
 
 2 Lord V. Godfrey, 4 ]\ladd. 455; Llewellyn's Trusts, 29 Beav. 171; 
 Morgan v. Morgan, 14 Beav. 72. 
 
 3 Holgate V. Jennings, 24 Beav. 630. There is some doubt upon the 
 principles of this case. 
 
 * Collins V. Collins, 2 Myl. & K. 703; Vaughan v. Buck, 1 Phill. 78; 
 Lichfield v. Baker, 13 Beav. 451; Harris v. Poyner, 1 Dr. 180; Chambers 
 V. Chambers, 15 Sim. 190: Daniel v. Warren, 2 Y. & Col. Ch. 290; Rowe 
 V. Rowe, 29 Beav. 276; Alcock v. Sloper, 2 Myl. & K. 699; Hind v. Selby, 
 22 Beav. 373; Bowden v. Bowden, 17 Sim. 65; Burton v. ]\Iount, 2 De G. 
 & Sm. 383 ; Skirving v. Williams, 24 Beav. 275; Hinves v. Hinves, 3 Hare, 
 609; Harvey v. Harvey, 5 Beav. 134; Bethune v. Kennedy, 1 Myl. & Cr. 
 114; Hunt v. Scott, 1 De G. & Sm. 219 ; Pickering v. Pickering, 2 Beav. 
 31 ; 4 Myl. & Cr. 289 ; Prendergast v. Prendergast, 3 H. L. Cas. 195; Hood 
 V. Clapham, 19 Beav. 90; Neville v. Fortescue, 16 Sim. 333 ; Howe v. 
 Howe, 14 Jur. 359. 
 
 5 Benn v. Dixon, 1 Phill. 76; Thornton v. Ellis, 15 Beav. 193 ; Morgan 
 V. Morgan, 14 Beav. 92 ; Blann v. Bell, 2 De G., M. & G. 775 ; Hood v. 
 Clapham, 19 Beav. 90 ; Lichfield v. Baker, 13 Beav. 481. 
 
 (a) See Johnson v. Goss, 128 dependent upon a trust in the ■will 
 
 Mass. 433 ; Metcalf v. Framingham which violates the rule against per- 
 
 Parish, id. 370 ; Trustees v. Tufts, petuities, are not invalidated there- 
 
 151 Mass. 76; Smith v. Lansing, 53 by. Lawrence u. Smith, 163 Til. 149. 
 N, Y. S. 633. Specific legacies, not (b) See Hovey v. Dary, 154 Mass. 
 
 630
 
 CHAP. XV.] 
 
 INVESTMENT. 
 
 [§ 452. 
 
 § 452. After a trustee has reduced the trust fund to pos- 
 session, and has secured the ])roper custody, and after lie has 
 converted so much of tlie property as was necessary to sell 
 for money, his next duty is to invest the proceeds. It is one 
 of the most important of the duties of trustees to invest the 
 trust fund in such manner that it shall be safe, and yield a 
 reasonable rate of income to the cestui que trust . If there 
 are directions in the instrument of trust as to the time, 
 manner, and kind of investment, the trustees must follow the 
 direction and power so given them. The creator of a trust 
 may specify the kind of investment, and what security may 
 be taken, or he may dispense with all security.^ In the 
 absence of such directions and powers, the trustees must be 
 governed by the general rules of the court, or by the statutes 
 and laws of the State in which the trust is to be executed. 
 If there are no directions in the instrument, nor rules of 
 court, nor statutory provisions in relation to investments, 
 they must be governed by a sound discretion and good faith.^ 
 
 1 Denike v. Harris, 84 N. Y. 89. 
 
 2 As a general rule, investments by executors and testamentary trus- 
 tees, which take the funds beyond the jurisdiction of the court, will not 
 
 7 ; Bowditch w. Ayrault, 138 N. Y. verted to adjust partnership equi- 
 222; Smith v. Smith, 174 111. 52; ties, and when necessary for that 
 
 Lackey's Estate, 149 Penn. St. 7; 
 Irwin x\ Patchen, 164 id. 51 ; Rudy's 
 Estate, 185 id. .359. A conversion 
 is implied when a will blends real 
 and personal property as a common 
 fund, which is bequeathed as money. 
 Marshall's Estate, 147 Penn. St. 77. 
 
 purpose, the intent to convert is 
 presumed. See Darrow v. Calkins, 
 154 N. Y. 503; Harris v. Harris, 
 153 Mass. 430; Oliver v. Oliver 
 (Ky.), 49 S. W. 473. 
 
 When executors have sold land 
 under a general power in the will, 
 
 So of a direction to " invest at in- the proceeds may be used to pay the 
 
 terest." Davenport v. Kirk land, 
 156 111. 1G9; see Fahnestock v. 
 Fahnestock, 152 Penn. St. 56 ; Allen 
 V. Watts, 98 Ala. 384; Brown v. 
 Miller (W. Va.), 31 S. E. 956. 
 
 In England partnership realty is 
 treated as converted into personalty 
 
 testator's debts. Bolton v. Myers, 
 146 N. Y. 257; 31 N. Y. S. 588. 
 But when a conversion of an in- 
 fant's realty is effected in invitum, 
 as by eminent domain proceedings, 
 the j^roceeds are to be treated as 
 realty until he is of age, and go 
 
 for all purposes ; in this country, it to his heirs in case of his death, 
 usually continues realty, except so Wetherill v. Hough, 52 X. J. Eq. 
 far as it is to be regarded as con- 683 ; In re Rochester, 136 X. Y. S3. 
 
 631
 
 § 452.] INVESTMENT. [CHAP. XV. 
 
 They must not have speculation in view, but rather a perma- 
 nent investment, considering both the probable income and 
 the probable safety of the capital.^ A trustee should clearly 
 indicate the investments he makes on behalf of the trust. 
 If he invests apparently in his private capacity and after loss 
 claims it was a trust transaction, he opens himself to suspi- 
 cion of maladministration. 2 A trustee ought not as a rule to 
 invest in second mortgages.^ Trustees ought to invest in 
 government or State securities, or in bonds and mortgages ou 
 unincumbered real estate. The rule is not inflexible, but 
 subject to the higher rule that the trustees are always to 
 employ such care and diligence in the trust business as care- 
 ful men of discretion and intelligence employ in their own 
 affairs.* In Rhode Island, neither statute nor rule of court 
 fixes any special class of investments for trust funds, and 
 trustees are therefore only required to be prudent, having 
 regard to the income and the permanence and safety of the 
 investment.^ Any loss occasioned by his negligence he 
 must bear.^ It is the duty of trustees having funds for in- 
 vestment to Iceep them invested, and if they retain trust- 
 moneys uninvested beyond a reasonable time, six months 
 being usually allowed, they are prima facie liable for in- 
 terest.'^ Voluntary investments must not be made by a trus- 
 tee beyond the jurisdiction of the court having charge of the 
 trust, except in case of necessity for the saving of the fund. 
 If he does so, the investment is at his peril of loss.^ Where 
 a trustee invested in a confederate bond which perished on 
 be sustained, and the trustee makes such investments at the peril of being 
 held responsible for the safety of investment. This rule is not inflexible, 
 but the circumstances must be very unusual to justify the exception to it. 
 Cruiston v. Olcott, 84 N. Y. 339. 
 
 1 Emery v. Batchelder, 78 Me. 233. 
 
 2 State V. Roeper, 82 Mo. 57. 
 
 « Com'rs of Somerville v. Johnson, 36 N. J. Eq. 211; Tuttle v. Gil- 
 more, id. 617. 
 
 * Mills V. Hoffman, 26 Hun, 594. 
 
 5 Peckham v. Xewton, 15 R. I. 321. 
 
 6 Cogbill V. Boyd, 77 Ya. 450. 
 
 ' Lent r. Howard, 89 X. Y. 169. 
 8 Ormiston v. Olcott, 84 N. Y. 339. 
 632
 
 CHAP. XV.] INVESTMENT. [§ 453. 
 
 liis hands, he was held not liable, having acted in good faith 
 and with due discretion according to the lights of the time of 
 investing. 1 The test of liability always is whether or no the 
 trustees have acted as prudent men would have acted in the 
 management of their own property. ^ 
 
 § 453. There is one rule that is universally applicable to 
 investments by trustees, and that rule is, that trustees cannot 
 invest trust-moneys in personal securities. If trustees have 
 a discretion as to the kind of investments, it is not a sound 
 discretion to invest in personal securities.^ Lord Ilard- 
 wicke said, that "a promissory note is evidence of a debt, 
 but no security for it. "^ Baron Hothman observed, that 
 "lending on personal credit for the purpose of a larger in- 
 terest was a species of gaming. " ^ Lord Kenyon said, that 
 "no rule was better established than that a trustee could not 
 lend on mere personal security, and it oiiglit to he rung in the 
 ears of every one who acted in the character of trustee."^ 
 
 1 Waller r. Catlett, 83 Va. 200. 
 
 =i Godfrey v. Faulkner, 23 Ch. D. 483. 
 
 8 Walker v. Symonds, 3 Swanst. 62; Darke v. Martyn, 1 Beav. 525; 
 Terry v. Terry, Pr. Ch. 273 ; Adye v. Feuilleteau, 1 Cox, 24 ; Vigrass v. 
 Binfield, 3 Madd. 62; Harden v. Parsons, 1 Eden, 149, note (a) ; Anon. 
 Lofft, 492; Keble r. Tiiompson, 3 Bro. Ch. 112; Wilkes v. Steward, G. 
 Coop. 6 ; Clough r. Bond, 3 Myl. & Cr. 496 ; Pocock v. Reddington, 5 Ves. 
 799 ; Collis v. CoUis, 2 Sim. 365 ; Blackwood v. Borrowes, 2 Conn. & 
 Laws. 477 ; Watts v. Girdleston, 6 Beav. 188; Graves v. Strahan, 8 De G., 
 M. & G. 291 ; Fowler v. Reynal, 3 Mac. & G. 500 ; Smith v. Smith, 4 
 Johns. Ch. 2S1 ; Nyce's Est., 5 Watts & S. 245 ; Soyer's App., 5 Penn. 
 St. 377 ; Willcs's App., 22 id. 3:50 : Gray v. Fox, Saxton, Ch.259 ; Hard- 
 ing V. Earned, 4 Allen, 426 ; Clark v. Garfield, 8 Allen, 427; Moore v. 
 Hamilton, 4 Fla. 112 ; Spear v. Spear, 9 Rich. Eq. 184; Barney v. Saun- 
 ders, 16 IIow. 545, 546. But see Kuowlton v. Brady, 17 N. H. 458. Tak- 
 ing notes for a loan without security is negligence, and renders the trustee 
 responsible if the debtor becomes insolvent. Judge of Probate v. Mathes, 
 60 N. H. 433. 
 
 * Walker v. Symonds, 3 Swanst. 81, note (a), citing Ryder v. Bick- 
 ertun. 
 
 s Adye v. Feuilleteau, 1 Cox, 25. 
 
 6 Holmes v. Dring, 2 Cox, 1 ; Wynne v. Warren, 2 Heisk. IIS; Dunn 
 V. Dunn, 1 S. C. 350. A trustee, investing iu personal securities, continues 
 
 633
 
 § 453.] 
 
 INVESTMENT. 
 
 [chap. XV. 
 
 It makes no difference that there are several joint prom- 
 isors ; ^ nor that the loan is to a person to whom the testator 
 loaned money on his personal promise ;2 nor will personal 
 sureties justify the loan.^ There must be express authority 
 in the instrument of trust to authorize a loan on personal 
 promises.^ Loose, general expressions, leaving the nature 
 of the investments to the trustees, will not justify such 
 loans. ^ (a) All the terms and conditions of a loan, to be 
 
 responsible for them after a transfer to his successor, until they are paid 
 or legally invested. For those that are paid he is relieved from respon- 
 sibility, although the money may never be received by the trust estate. In 
 re Foster's Will, 15 Hun (N. Y.), 387. 
 
 1 Ibid. ; Clark v. Garfield, 8 Allen, 427. 
 
 2 Styles V. Guy, 1 Mac. & G. 423. 
 
 3 AVatts c. Girdleston, 6 Beav. 188. 
 
 4 Forbes v. Ross, 2 Bro. Ch. 430 ; 2 Cox, 113; Child i'. Child, 20 
 Beav. 50. 
 
 5 Pocock V. Reddington, 5 Ves. 799 ; Wilkes v. Stewart, G. Coop. 6 ; 
 Mills I'. Osborne, 7 Sim. 30 ; Wynne v. Warren, 2 Heisk. 118. 
 
 («) See 52 & 53 Vict. c. 32, 
 § 3; Hume v. Lopes, [1892] A. C. 
 112 ; In re National, &c., Building 
 Society, 43 Ch. D. 431 ; In re 
 Manchester Royal Infirmary, id. 
 420; Elve v. Boyton, [1891] 1 Ch. 
 500 ; In re Owthwaite, [1891] 3 Ch. 
 494 ; In re Smith, [189G] 2 Ch. 590; 
 Peckham v. Newton, 15 R. I. 321 ; 
 Hunt, Appellant, 141 Mass. 515 ; 
 Dickinson, Appellant, 152 Mass. 184 ; 
 Herrick's Es^tate, 12 N. Y. S. 105 ; 
 14 id. 947 ; Blauvelfc's Estate, 20 id. 
 119; Nobles v. Hogg, 36 S. C. 322; 
 Howard v. Quattlebaum, 46 S. C. 
 95; Simmons v. Oliver, 74 Wis. 
 633; Durrett v. Com'th, 90 Ky. 312 ; 
 Hite V. Hite, 93 Ky. 2.57; Calloway 
 V. Calloway (Ky.),' 36 S. AV. 241 ; 
 Brewster r. Deniai'est, 48 N. J. Eq, 
 559 ; Dufford v. Smith, 46 id. 216 ; 
 Lacoste v. Splivalo, 64 Cal. 35 ; 40 
 Am. Dec. 513-516. A trustee can- 
 63-i 
 
 not properly invest the trust funds 
 in speculative real-estate bonds, or 
 in second-mortgage railroad bonds, 
 or in any speculative railroad stocks 
 or bonds, though paying dividends, 
 especially when the railroad is out- 
 side the jurisdiction of the courts 
 which pass upon his accounts. 
 Clark V. Andei'son, 13 Bush, 111; 
 Gilbert v. Kolb, 85 Md. 627 ; Bar- 
 ker's Estate, 159 Penn. St. 518; 
 Dickinson, Appellant, 152 Mass. 
 184; White v. Sherman, 108 111. 
 589 ; McCuUough v. McCullough, 
 44 N. J. Eq. 313, and note; Minne- 
 apolis Trust Co. V. Menage (^Minn.), 
 76 N. W. 195. 
 
 AVhen a trustee invests in bonds, 
 and pays a premium therefor, he is 
 to make such deduction from the 
 interest as will suffice to make the 
 principal intact when the bonds 
 mature. New York Life Ins. Co. v.
 
 CHAP. XV.] INVESTMENT. [§ 454 
 
 made on personal security, must be strictly complied with ; 
 as, if a loan is authorized to a husband, upon tlie written 
 consent of the wife, such consent must l)e had in the required 
 form;^ and a subsequent assent will nut save the trustees 
 from responsibility.^ An authority to loan on personal 
 security will not justify the trustees in lending to one of 
 themselves;^ nor will it justify them in lending to a rela- 
 tion, for the purpose of accommodating him.* (a) 
 
 § 454. So, in the absence of express authority, the emi)loy- 
 mcnt of trust funds in trade or speculation, or in a manufac- 
 turing establishment, will be a gross breach of trust.^(?>) 
 
 1 Cocker t: Quayle, 1 11. & ^l. 535; Pickard v. Anderson, L. R. 13 Eq. 
 608 ; Forbes v. Koss, 2 Bro. Ch. 4-30. 
 
 2 Rateman v. Davis, 3 Madd. 98. 
 
 « Forbes v. Ross, 2 Bro. Ch. 430 ; 2 Cox, 113 ; v. Walker, 5 Russ. 
 
 7 ; Stickney c. Sewell, 1 Myl. & Cr. 814 ; Francis v. Francis, 5 De G., M. 
 & G. 108; De Jarnette v. De Jarnette, 41 Ala. 708. 
 
 * Ibid. ; Langston v. Ollivant. G. Coop. 33 ; Cock v. Goodfellow, 10 
 Mod. 489 ; Fitzgerald r. Pringle, 2 Moll. 534. 
 
 8 Munch V. Cockerell, 5 Myl. & Cr. 178 ; Kyle v. Barnett, 17 Ala. 306 ; 
 Flagg v. Ely, 1 Edm. (N. Y ) 20G; King v. Talbott, 40 N. Y. 96 ; 50 Barb. 
 453; Tucker v. State, 72 Ind. 242. And parol request by testator to trus- 
 tee to carry on the business for the benefit of his family is inadmissible 
 to prove authority. Raynes v. Raynes, 51 N. 11. 201. 
 
 Kane, 45 N. Y. S. 543 ; In re Iloyt, on bonds if they are unexpectedly 
 
 50 id. 623 ; New York Life Ins. Co. called in. Cridlaud's Estate, 132 
 
 V. Baker, 50 id. 618. " If the in- Peun. St. 479. 
 
 vestment be in securities purchased (</) Trustees having a power, 
 at a premium, only such part of the with the consent of the tenant for 
 proceeds therefrom can be counted life, to lend on personal securities, 
 as income as shall leave the fund may lend on such securities to the 
 unimpaired at the maturity of the tenant for life himself. //jreLaing's 
 investment. Consideration should Settlement, [1899] 1 Ch. 593, con- 
 be had for any contingencies in the troverting Lewin on Trusts (10th 
 investment market that are reason- ed.), 335. 
 
 ably probable within the life of the (6) See Butler v. Butler, 164 
 
 life beneficiary." New York Life 111. 171 ; Young's Estate, 97 Iowa, 
 
 Ins. Co. V. Sands, 53 N. Y. S. 320. 218; In re Clary, 112 Cal. 292; 
 
 The trustee is not liable person- Wolfort v. Reilly, 133 Mo. 463 ; St. 
 
 ally for loss of the premium paid Paul Trust Co. c. Kittson, 62 Miuu. 
 
 635
 
 § 454.] INVESTMENT. [cHAP. XV. 
 
 However advantageous such an investment may appear, the 
 trustee investing the funds in such undertakings will he 
 compelled to make good all losses, and to account for and 
 pay over all profits.^ The law discourages all such use of 
 trust funds, by rendering it certain that the trustee shall make 
 no i)rorit from such investments, and that he shall be respon- 
 sible for all losses. And if a trustee stands by, and sees his 
 cotrustee employ the funds in that manner, he will be 
 equally liable. ^ The same rule applies if the trustees simply 
 continue the trade or business of the testator.^ It is their 
 duty to close up the trade, withdraw the fund, and invest it 
 in proper securities at the earliest convenient moment; and 
 the same rule applies although the trustees may have been 
 the business agents or partners of the testator.* Nor will a 
 power "to place out at interest, or other way of improve- 
 ment," authorize the employment of the money in a trading 
 concern.^ In one case the dii-cction was to "employ" the 
 money, and it was thought that it savored of trade, and 
 might be employed in that manner;^ but it would not be safe 
 
 1 French v. Hobson, 9 Ves. 103 ; Brown v. De Tastet, Jac. 284; Cook 
 r. CoUingridge, id. 607; Crawshay v. Collins, 15 Ves. 218; 2 Russ. 325; 
 Featherstonhaugh v. Fenwick, 17 Ves. 298 ; Docker v. Somes, 2 Myl. & 
 K. 655 ; Wedderburn v. AVedderburn, 2 Keen, 722 ; 4 Myl. & Cr. 41 ; 
 Martin v. Rayborn, 42 Ala. 648. 
 
 2 Booth V. Booth, 1 Beav. 125; Ex parte Heaton, Buck. 386 ; Bates v. 
 Underbill, 3 Redf. (N. Y.) 365. 
 
 2 Ibid. ; Kirkman v. Booth, 11 Beav. 273. In some cases, an executor 
 is bound to complete the contracts of the testator. Collinson v. Lister, 20 
 Beav. 356. 
 
 * Wedderburn v. Wedderburn, 2 Keen, 722 ; 4 Myl. & Cr. 41. 
 
 5 Cock V. Goodfellow, 10 Mod. 489. 
 
 6 Dickinson v. Player, C. P. Coop. 178 (1837, 1838). 
 
 408; Warren r. Union Bank of When loss results from an un- 
 
 Rochester, 157 N. Y. 259. A trus- authorized investment, the trustee 
 
 tee who uses the trust-money in his will be required to make it good 
 
 own business, or in speculation, is as against an infant beneficiary, 
 
 an insurer of the fund and of its although the securities cannot be 
 
 productiveness. Bangor v. Beal, 85 returned to him. Head r. Gould, 
 
 Maine, 129 ; Re Myers, 131 N. Y. [1898] 2 Ch. 250. 
 409; Ward v. Tiukham, 65 Mich. 
 695. 
 
 636
 
 CHAP. XV.] BANK SHARES AND CORPORATIONS. [§ 455. 
 
 for trustees to rely upon that case as an authority, even if 
 their trust instrument contains a similar direction. If the 
 settlor authorize his trustees tu continue tiie fund in a trad- 
 ing firm, it will be a breach of trust, if the trustees allow 
 the fund to remain after a change in the firm, as by the 
 death or withdrawal of one of the partners.^ If the trustees 
 are directed to continue the testator's trade, they can invest 
 none of his general assets in the business. They are con- 
 fined to the fund already embarked in the trade. ^ If the 
 trustees act in good faith in continuing the testator's busi- 
 ness under such directions in a will, they will not be liable 
 for any loss;^ but they must act in good faith and without 
 collusion or interested motives. So trustees are not bound 
 to continue the capital in such trade, and they ought not to 
 do so against their judgment* But if all the cestuis que trust 
 are sui juris, and capable of acting for themselves, and they 
 desire an executor, administrator, or trustee to continue the 
 business of the testator a few months, in order to preserve it 
 for his son, and the executor acts in accordance with their 
 request, and uses his best skill and judgment in the conduct 
 of the trade, he will be allowed for the loss in his accounts.^ 
 
 § 455. In England, trustees cannot invest the trust fund in 
 the stock or shares of any bank or private or trading corpo- 
 ration ; for the capital depends upon the management of the 
 directors, and is subject to losses.^ It is apparent, that a 
 manufacturing or trading corporation may lose its whole 
 capital in the prosecution of its business strictly within the 
 terms of its charter.^ Lord Eldon said of bank stock, that 
 
 ^ Cummins v. Cummins, 3 Jo. & Lat. 64 ; 8 Ir. Eq. 723. 
 
 2 McXeille i-. Acton, 4 De G., M. & G. 563; 17 Jur. 104. And the 
 court will keep separate the trade property, and apply it exclusively to the 
 purposes of the trade. Owen v. Delamere, 15 Eq. Cas. 139 ; Ex parte 
 llichardson, 3 Madd. 138; Ex parte Garland, 10 Ves. 120. 
 
 8 Paddon v. Richardson, 7 De G., M. & G. 563. 
 
 4 Murray v. Glasse, 23 L. J. Ch. 124. 
 
 6 Poole V. Munday, 103 Mass. 174. 
 
 « Ilaynes v. Redington, 1 Jo. & Lat. 589 ; 7 Ir. Eq. 405; Clough r. 
 Bond, 3 Myl. & Cr. 400; Powell v. Cleaver, 7 Yes. 142, n. 
 
 ^ Trafford v. Boehm, 3 Atk. 440 ; Mills v. :Mill3, 7 Sim. 501 ; Hancom 
 
 637
 
 § 455.] INVESTMENT. [CHAP. XV. 
 
 "it is as safe, I trust and believe, as any government 
 security; but it is not government security, and therefore 
 this court does not lay out or leave property in bank stock, 
 and what this court will decree it expects from trustees and 
 executors. "1 By Lord St. Leonards' Act, 22 & 23 Vict. 35, 
 trustees, not forbidden by the instrument of trust, are au- 
 thorized to invest in Bank of England or Ireland or East 
 India stock. This act was held not to authorize an invest- 
 ment in these stocks of trust funds settled before the passage 
 of the act.^ By 23 & 24 Vict. c. 38, the original act was 
 made retrospective, and the courts of chancery were author- 
 ized to issue general orders, from time to time, as to the 
 investment of funds subject to its jurisdiction, either in three 
 per cent consolidated or reduced, or new bank annuities, or 
 in such other stocks, funds, or securities as the court shall 
 think fit; and trustees, having power to invest trust funds in 
 government securities, or upon railway stocks, funds, or 
 securities, may invest in the stocks, funds, or securities which 
 may be designated by the general order of the court. In 
 pursuance of the statute, a general order was issued in 1861, 
 as follows : " Cash under the control of the court may be in- 
 vested in bank stock, East India stock, exchequer bills, and 
 £2 10s. annuities, and upon freehold and copyhold estates, 
 respectively in England and Wales, as well as in consolidated 
 <£3 per cent annuities, reduced £S per cent annuities, and 
 new X3 per cent annuities." There are also provisions in 
 the act by which trustees may apply to the court for leave to 
 change their investments into those now allowed by the act 
 and the court; but the act does not apply where the fund is 
 settled specifically and there is no power of varying the 
 
 V. Allen, 2 Dick. 499, n. ; 7 Bro. P. C. 375 ; Emelie v. Emelie, id. 259; 
 Peat V. Crane, 2 Dick. 499, n. ; Clough v. Bond, 3 Mjl. & Cr. 496. 
 
 1 Howe V. Dartmouth, 7 Ves. 150; Band v. Fardell, 7 De G., M. & G. 
 633 ; King v. Talbott, 40 N. Y. 86. 
 
 2 Re Miles's Will, 5 Jur. (n. s.) 1266 ; Dodson v. Sammell, 6 Jur. 
 (n. s.) 137; 1 Dr. & Sm. 575. The Vice-chancellor held the other way 
 in Page v. Bennett, 2 Gif. 117 ; Simson's Trusts, 1 John. & H. 89 ; Mor- 
 timer V. Picton, 4 De G., J. & S. 166, 179. 
 
 638
 
 CHAP. XV.] BANK SHARES AND CORPORATIONS. [§ 456. 
 
 securities.^ Courts may give directions as to investments 
 by trustees by decrees in j»articular suits, or by the promul- 
 gation of general orders or rules of court.^ (a) It is said that 
 the public policy in England of compelling trustees to invest 
 trust funds in government funds originated largely in the 
 necessities of the government, and the public advantage of 
 creating a market and demand for government securities. ^ 
 
 § 456. The English rule, in relation to investments of 
 trust funds in bank stock and shares in trading and manu- 
 facturing corporations, prevails in New York and Pennsyl- 
 vania.* It is agreed, that trustees cannot invest trust funds 
 in trade, nor directly in manufacturing, nor in business gen- 
 erally, nor in personal securities, unless there is an authority 
 contained in the instrument of trust. The reasoning is, that 
 trustees cannot use the trust fund in carrying on a jtrivate 
 manufacturing establishment, nor in the business of private 
 bankers, nor in underwriting, nor in trade and commerce, 
 and that there is no difference in principle between carrying 
 on such enterprises themselves with the trust fund, or lend- 
 ing it to other individuals to do so on their personal security, 
 and buying shares or stocks in such business corporations 
 carried on by other private individuals, or by the trustees 
 themselves, as officers or agents. Perhaps these are the only 
 States in which the strict English rule is holden. In 3Iary- 
 land, investments in bank stock, gas stock, etc., are good. ^ In 
 Massachusetts, it is held that trustees may invest in bank 
 stocks, and in the shares of manufacturing and insurance 
 
 1 Ward's Settlement, 2 John. & H. 191 ; Ex parte Great No. Ry. Co., 
 L. R. 9 Eq. 274; In re Wilkinson, id. 343. 
 
 2 Wheeler v. Perry, 18 N. II. 307. 
 8 Brown v. Wrij^lit, 39 Ga. 96. 
 
 * Ackerman r. Einott, 4 Barb. 626 ; Hemphill's App., 18 Penn. St. 303 ; 
 Worrall's App., 22 id. 44; Morris v. Wallace, 3 id. 319; Xyce's Est., 5 
 Watts & S. 254. 
 
 6 McCoy V. Ilorwitz, 02 Md. 183. 
 
 (a) StoufEer v. Clagett (Md.), .32 ]\Iiss. 213; Drake r. Crane, 127 Mo. 
 Atl. 284 ; Merritt y. Merritt, 48 N. 85; 1 Ames on Trusts (2d ed.), 
 J. Eq. 1 ; West v. Robertson, 67 491, n. 
 
 639
 
 § 456.] INVESTMENT. [CHAP. XV. 
 
 corporations,' or in the notes of individuals secured by such 
 stocks and shares as collateral security, ^ or in certificates of 
 deposit issued by a National Bank.^ The court justifies this 
 rule in an elaborate opinion, affirming that such stocks are 
 subject to no greater fluctuations than government securi- 
 ties ; that they are as safe as real securities, which may de- 
 preciate in value, or the title fail; that claims against such 
 corporations can be enforced at law,^ while government funds 
 can only be enforced by supplicating the sovereign power; 
 and that government securities have hitherto been so limited 
 in amount that it was impossible for the trust funds of the 
 country to be invested in that manner. The last reason no 
 longer exists. There are now national, state, county, town, 
 and city bonds in sufficient amounts to absorb all trust funds 
 seeking investment, and it is not to be denied that such in- 
 vestments are more permanent and safe. It may be ad- 
 mitted, that great public emergencies and national dangers 
 have an unfavorable effect upon the value of public securi- 
 ties ; but such emergencies and dangers have the same effect 
 upon the stocks of private corporations. In addition to 
 these depressing influences, the capital of such companies 
 runs the risks and chances of trade, business, and specula- 
 tion. Calamities that depress public credit seldom occur, 
 while the risks of trade are constant. It would seem to be 
 the wiser course to withdraw the funds, settled for the 
 support of women, children, and other parties who cannot 
 exercise an active discretion in the protection of their inter- 
 ests, as much as possible from the chances of business. It 
 
 1 Harvard Coll. v. Amory, 9 Pick. 446. 
 
 2 Lovell V. Minot, 20 Pick. 116; Brown v. French, 125 Mass. 410. 
 8 Hunt, Appellant, 141 Mass. 515, 523. 
 
 * It is said that loans by the city of Boston always command a higher 
 premium in the market than the loans of the Commonwealth. The differ- 
 ence in part is said to be that the city of Boston can be sued upon its 
 contracts, and a judgment against it can be satisfied by seizing, upon an 
 execution, any property of any citizen within the municipal limits; while 
 no suit can be maintained against the State, but everything depends upon 
 the good faith and honor of the legislature iu supplying the means of 
 payment. 
 
 640
 
 CHAP. XV.] BANK SHARES AND CORPOKATIONS. [§ 456. 
 
 may be said, that settlors may always do this by directing in 
 what manner the funds settled by them shall be invested. 
 But it would seem to be wiser for the court to establish the 
 safest rule in the absence of special directions, and leave it 
 to the settlor, if he prefers, to direct a less safe investment.^ 
 
 1 A large number of cases have been adjudged in the late confederate 
 States, involving the legality of investments by trustees in the bonds and 
 securities of the confederacy. No new principles have been so established 
 that it is necessary to alter the text; but for convenience the principal 
 cases are noted in this place. Under § 34 of the act of Nov. 9, 1861, of 
 Alabama, which authorized trustees to invest in confederate bonds, or to 
 receive payment in confederate notes, it was held that trustees were jus- 
 tified in making such investments previous to the re-establishment of the 
 authority of the United States. Watson v. Stone, 40 Ala. 451 ; Dockey 
 V. IMcDowell, 41 Ala. 470. But a guardian was held liable to account for 
 ihe cash in full, who received payment in confederate notes after the 
 re-establishment of such authority. "Where a trustee procured an ex parte 
 order to invest in confederate bonds, he was held liable for the loss. 
 Snelling v. McCreary, 14 Rich. Eq. 291. Where a trustee received pay- 
 ment of a debt due to the trust fund, in the currency in common use, and 
 reinvested it in securities which became worthless by the result of the war, 
 he was not held liable for the loss. Campbell v. Miller, 38 Ga. 304. To 
 the same effect is Brown v. Wright, 39 Ga. 90, which contains an able 
 statement of the policy of the English government in directing trust 
 funds to be invested in public securities. 
 
 In Virginia, commissioners who collected money by order of the court 
 in confederate notes, and held a balance subject to contested liens until it 
 became worthless, were held not liable for the loss. Davis i\ Harman, 
 
 21 Grat. 200. And substantially the same rule was held in Dixon v. 
 McCue, 21 Grat. 374. In Morgan v. Otey, 21 Grat. 019, it was held 
 that payments should be made in the currency of the day. See Kraken 
 V. Shields, 20 Grat. 377. In Walker v. Page, 21 Grat. 637, it was held 
 that a sale of infant's lands for confederate money was valid at the time 
 it was made, and tliat further development of events did not vitiate it. In 
 Myers v. Zetelle, 21 Grat. 733, it was held that an agent or trustee who 
 in good faith sold property, and invested the proceeds in confederate 
 securities, at a time when no other investments were open to him, was 
 protected from loss. And see Bird v. Bird, 21 Grat. 711 ; Beery v. Irick, 
 
 22 Grat. 614 ; Campbell r. Campbell, id. 649 ; Colrane i'. Worrel, 30 Grat. 
 434. 
 
 In State v. Simpson, 65 N. C. 497, it was held that a guardian who 
 
 collected in money which was well secured to his ward, and invested the 
 
 same in confederate bonds, was guilty of laches, and was liable for the 
 
 loss. See Alexander v. Summey, 66 N. C. 578. An agent or trustee is 
 
 VOL. I. — 41 6-41
 
 § 457.] INVESTMENT. [CHAP. XV. 
 
 § 457. The power to lend on mortgage was doubted or 
 denied, until Lord St. Leonard's act, unless there was an 
 express power in the instrument of trust, or a decree of the 
 court. Lord Harcourt, Lord Hardwicke, and Lord Alvanley 
 appeared to have thought that a trustee or executor might 
 invest the money in well-secured real estates.^ But Lord 
 Thurlow said, that in latter times the court had considered 
 it improper to invest any part of a lunatic's estate upon pri- 
 vate security. 2 Sir John Leach refused to allow an infant's 
 money to be invested in that manner, and expressed sur- 
 prise that any precedent could be found to the contrary. ^ In 
 a late case, the trustees invested in mortgages at the request 
 
 authorized to receive payment of debts in the currency received by prudent 
 business men for similar purposes. Baird v. Hall, 67 N. C. 230. See 
 Wooten V. Sherrard, 68 N. C. 334. 
 
 In Creighton v. Pringle, 3 S. C. 78, a trustee was held guilty of a breach 
 of trust in investing in confederate bonds. Cureton v. Watson, 3 S. C. 
 451. But see Hinton v. Kennedy, id. 459. 
 
 If a trustee, acting in good faith, receive funds in bank-notes which are 
 depreciated, he will be protected if such notes were the only money attain- 
 able. Barker v. McAuley, 4 Heisk. 424. 
 
 When a trustee kept the identical money received by him, he was 
 allowed to turn it over to the person entitled to receive it, without loss to 
 himself ; but if he has not kept it, he will be charged with the nominal 
 sums collected by him. Saunders v. Gregory, 3 Heisk. 507. 
 
 In Texas, trustees could not receive confederate money in discharge of 
 obligations to them. Turner ik Turner, 36 Tex. 41. And see Scott v. 
 Atchison, id. 76; Kleberg v. Bond, 31 Tex. 611; Woods v. Toombs, 36 
 Tex. 85; Turpin v. Sanson, id. 142; McGar v. Nixon, id. 289; Lacey v. 
 Clements, id. 661. 
 
 In the Supreme Court of the United States payment to an agent or 
 trustee in anything but lawful money of the United States, or bank 
 notes of the current value of their face, is held invalid. Ward v. Smith, 
 7 Wall. 451; Horn v. Lockhart, 17 Wall. 570; McBurney v. Carson, 99 
 U. S. 567. 
 
 1 Brown v. Litton, 1 P. Wms. 141; Lyse v. Kingdon, 1 Coll. 188; 
 Knight V. Plymouth, 1 Dick. 126 ; Pocock v. Reddington, 5 Ves. 8G0. 
 
 2 Ex parte Calthorpe, 1 Cox, 182; Ex parte Ellice, Jac. 234. 
 
 3 Norbury v. Norbury, 4 Madd. 191 ; Widdowson v. Duck, 2 Mer. 
 494; Ex parte Fust, 1 C. P. Coop. (t. Cott.) 157, n. (e); Ex parte Frank- 
 lyn, 1 De G. & Sm. 531; Ex parte Johnson, 1 Moll. 128; Ex parte Ridg- 
 way, 1 Hog. 309. 
 
 642
 
 CHAP. XY.] 
 
 REAL SECURITIES. 
 
 [§ 457. 
 
 of the tenant for life, and to procure a higher rate of interest, 
 and they were held liable for the loss; but the case did not 
 go to the full extent of deciding that trustees could not in- 
 vest on real securities^ for the reason that they had consulted 
 the interests of the tenant for life, at the expense of those 
 of the remainder-man, but the court did not favor mortgages.^ 
 If trustees are directed to invest in public funds, of course 
 they cannot invest in mortgages.^ Previous to the acts be- 
 fore mentioned, 3 courts did not sanction mortgages;* but 
 the practice is now relaxed, and a loan upon freeholds of 
 inheritance to the extent of two-thirds of their value may be 
 allowed.^ But the rule of two-thirds is not inflexible. It 
 may be improper to loan even two-thirds of the present value ; 
 as, where the value depends upon the chances of trade or 
 business, and where the property consists of houses liable to 
 deterioration.^ (a) So it may not be a breach of trust under 
 
 1 Raby v. Ridehalgh, 7 De G., :M. & G. 108. 
 
 2 Pride )•. Fooks, 2 Beav. 430 ; Waring v. Waring, 3 Ir. Ch. 331. 
 8 Ante, § 455. 
 
 4 Barry v. Marriott, 2 De G. & Sm. 491 ; Ex parte Franklyn, 1 De G. 
 & Sm. 531. 
 
 6 Stickney v. Sewell, 1 Myl. & Cr. 8 ; Norris v. Wright, 14 Beav. 307 ; 
 Macleod r. Annesly, 16 Beav. 600. 
 
 ^ Ibid.; Phillipsoii v. Gatty, 7 Hare, 16; Drosier r. Brereton, 15 Beav. 
 221 ; Stretton v. Ashmall, 3 Dr. 9 ; 3 De G. 26 ; L. J. Ch. 277 ; Farrar r. 
 Barraclough, 2 Sm. & Gif. 231. 
 
 (a) See Rae v. Meek, 14 A.C. 558 ; 
 Hutton f. Annan, [1898] A. C. 289, 
 297; Jones v. Julian, 25 L. R. Ir. 
 45 ; Worman v. Worman, 43 Ch. D. 
 296; Hale v. Sheldrake, 60 L. T. 
 292 ; In re Medland, 41 Ch. D. 476 ; 
 Re Messingbred, 60 L. T. 620 ; In re 
 Turner, [1897] 1 Ch. 536; Stone 
 V. Clay (Ky.), 45 S. W. 80 ; Cousin's 
 Estate. Ill Cal. 441; Randolph v. 
 East Birmingham Land Co., 104 
 Ala. 355: Stark's Estate, 15 N. Y. S. 
 729 ; mulligan v. Pleasants, 74 ]\Id. 8; 
 Hanscom v. INIarston, 82 ]\Iaine, 288 ; 
 1 Ames ou Trusts (2d ed.), 485, n. 
 
 In Re Somerset, [1894] 1 Ch. 
 231 ; 68 L. T. 613, Kekewich, J., re- 
 ferring to Speight I'. Gaunt, 9 A. C. 
 1, and Learoyd v. Whiteley, 12 id. 
 727, said in substance : When there 
 is no actual breach of trust, trustees 
 are simply judged by the rule that 
 they are to exercise ordinary care 
 and prudence in the discharge of 
 their duties. Their liability, as rer 
 gards any particular transaction, is 
 not increased by reason of the fact 
 that one of their number is skilled 
 in the business with which the 
 transaction is concerned. As re- 
 G43
 
 § 458.] INVESTMENT. [CHAP. XV. 
 
 certain circumstances to loan more than two-thirds.^ Trus- 
 tees ought not to lend on a second mortgage, though it might 
 not be a breach of trust in all cases to do so ; ^ and so they 
 ought to have a power of sale inserted in the deed, although 
 it might not be a breach of trust to neglect it.^ 
 
 § 458. There can be no doubt that mortgages on real 
 estate are considered proper investments in the United 
 States, and perhaps they are the only investments which 
 are not objectionable in some one of the States. In the 
 absence of public funds to an amount hitherto sufhcient to 
 absorb the money to be invested by trustees, different rules 
 have been established in the several States, but mortgages 
 upon estates of inheritance, taken with proper caution as to 
 the amount and the title, have been named in all the States 
 as proper and safe investments ; so that the question in the 
 United States is whether the security is in fact what it is 
 called, security upon real estate. A loan to a company 
 owning coal lands and a canal, to a much greater value 
 than its debts, the interest on the loan being a preferred 
 claim upon the income, was held to be substantially on real 
 estate;* but an investment in the stock of a similar com- 
 pany, which stock was not preferred, was held to be a 
 breach of trust. ^ An investment in railway bonds, secured 
 
 1 Jones V. Lewis, 3 De G. & Sm. 471. This case was reversed on ap- 
 peal. See Lewin on Trusts, 263 (5th ed.). 
 
 2 Norris v. Wright, 14 Beav. 291 ; Drosier v. Brereton, 15 Beav. 221; 
 Robinson v. Robinson, 11 Beav. 371 ; 1 De G., M. & G. 247 ; Waring v. 
 Waring, 3 Ir. Eq. 337 ; Lockhart v. Reilly, 1 De G. & J. 476 ; Nance v. 
 Nance, 1 S. C. 209. 
 
 3 Farrar v. Barraclough, 2 Sm. & Gif. 231. 
 < Twaddell's App., 5 Penn. St. 15. 
 
 6 Worrall's App., 21 Penn. St. 508. 
 
 gards investments on mortgages, it There is no absolute rule respecting 
 is the duty of the trustees to decide, the choice of securities falling within 
 and to exercise their own judgment, the strict limits of authorized invest- 
 as to the sufficiency of the securities, ments, or the amount proper to be 
 even though a surveyor, solicitor, or advanced against any particular se- 
 other trusted agent, has expressed curity. See also In re Westerfield, 
 to them his opinion on the subject. 53 N. Y. S. 25. 
 644
 
 CHAP. XV.] REAL SECURITIES. [§ 458. 
 
 by a mortgage of the road-bed, franchise, and other property, 
 is not real security, though real estate is covered by the 
 mortgage ; for the method of enforcing such a bond is very 
 different from the ordinary manner of foreclosing a mort- 
 gage, and whether such a bond can be enforced at all depends 
 u})on the concurrent will of so many bondholders, that, at 
 best, it is only nominal real estate.^ London Dock stock 
 and sewer bonds are not real security. ^ It is not a breach 
 of trust to leave funds in turnijike bonds, secured by a mort- 
 gage of the tolls and real estate of the company, as they had 
 been invested by the testator. ^ Under the right of the trus- 
 tees to invest trust funds in real securities, they cannot 
 convert the funds into real estate by taking the legal title 
 absolutely to themselves in trust; and if they do so, the 
 cestui que trust may elect to take the land, or the trust-money 
 and interest;* though a direction to invest in productive 
 real estate was held to justify the purchase of dwelling- 
 houses, or the purchase of a right of dower in order to render 
 the property more productive.^ If a testator has already 
 invested in mortgages, a trustee may make such further ad- 
 vances of money as are necessary to secure the first invest- 
 ment. No general rule can be stated; but the trustee in 
 
 1 Mant V. Leith, 15 Beav. 524 ; Allen v. Gaillard, 3 S. C. 279. It is 
 not sufficient for a trustee to say, in defence of an investment, that it is on 
 real security. There are other things to be considered, the nature of the 
 property and other matters. The property, though sufficient, may be in- 
 volved in litigation. Per Master of Kolls in Mant v. Leith. 
 
 2 Robinson v. Robinson, 11 Beav. 371. 
 
 3 Robinson v. Robinson, 21 L. J. Ch. Ill ; 1 De G., M. & G. 247; Mil- 
 ler ('. Proctor, 20 Ohio St. 444. 
 
 * Mathews v. Hey ward, 2 S. C 239 ; Ouseley v. Anstruther, 10 Beav. 
 456; Royer's App., 11 Pa. St. 36; Kaufman v. Crawford, 9 Watts & S. 
 131 ; Bonsall's App., 1 Rawle, 273 ; Bellington's App , 3 Rawle, 55 ; Ring- 
 gold V. Ringgold, 1 H. & G. 11 ; Morton v. Adams, 1 Strob. Eq. 72 ; Ileth 
 r. Richmond, &c. Co., 4 Grat. 482; Eckford r. De Kay, 8 Paige, 89; Win- 
 chelsea v. Nordcliffe, 1 Vern. 134. And if a mortgage is given back, the 
 mortgagor, if he have notice of the misapplication of the trust fund, can- 
 not enforce his mortgage until the fund has first been replaced. Matheus 
 V. Heyward, 2 S. C. 239. 
 
 ^ Parsons v. AVinslow, 16 Mass. 308. 
 
 645
 
 § 458.] INVESTMENT. [CHAP. XV. 
 
 such case must make a careful investigation and exercise a 
 sound discretion, or his advances will not be allowed in case 
 of a loss.^ And so a guardian, in case of a grave emergency, 
 may buy in land for the minor to save a certain loss;^ so 
 an administrator may buy in the land of a debtor to his 
 estate to save the debt.^ Such an investment is a mere 
 temporary expedient, and is to be treated as personal estate.^ 
 A loan of trust funds on real mortgage does not change the 
 character of the funds, nor constitute an investment in real 
 estate.^ The court may order an investment of accumula- 
 tions, or of the principal fund temporarily in real estate, with 
 a declaration that it shall continue personalty;^ and so a 
 court may order an investment in real estate generally, 
 where no other way is pointed out in the trust instrument.^ 
 Where a trustee or guardian is obliged to take land subject 
 to a mortgage, the trustee becomes personally liable to pay 
 off the mortgage, to protect the interest of the cestui que 
 trust. In such case, the guardian or trustee may have the 
 possession of the estate or the management of the trust fund, 
 in order to secure himself for the advancement so made.^ 
 But there must be an urgent necessity to justify such a pro- 
 ceeding. If a trustee is authorized to invest in real estate, 
 stock, or securities, he cannot mortgage the trust fund in 
 order to raise money to invest in such manner, nor invest 
 in machinery for the use of the cestui que trust.^ In all 
 cases the trustee ought to exercise high diligence in ascer- 
 taining the valuation, situation, condition, and productive- 
 ness of the real estate or other property upon which it is 
 proposed to make a loan of the trust-money ; for he will bo 
 
 1 Collinson v. Lister, 20 Beav. 356. 
 
 2 Bonsall's App., 1 Rawle, 273; Royer's App., 11 Penn. St. 36. 
 
 3 Bellington's App., 3 Rawle, 55. 
 
 4 Oeslager v. Fisher, 2 Penn. St. 467. 
 6 Milhous V. Dunham, 78 Ala. 48. 
 
 6 Webb V. Shaftesbury, 6 Madd. 100. 
 ' Ex parte Calmes, 1 Hill, Eq. 112. 
 
 8 Woodward's App., 38 Penn. St. 322. 
 
 9 Rider v. Sisson, 7 R. I. 341. 
 646
 
 CHAP. XV.] REAL SECURITIES. [§ 459. 
 
 liable for the loss if he is guilty of any negligence in this 
 respect.^ 
 
 § 459. In a few States, there are statutes authorizing trus- 
 tees to invest in a particular manner, and excusing them 
 from responsibility if their investments are made in good 
 faith in the prescribed securities, (a) Thus in Pennsylvania, ^ 
 an executor, guardian, or trustee may apply to the Orphans' 
 Court, and the court may direct an investment in the stocks 
 or public debt of the United States, of the State, or of the 
 city of Philadelphia, or in real securities, or in the stock of 
 the incorporated districts of Philadelphia County, of Pitts- 
 burg and Alleghany, and the water-works of Kensington, 
 Philadelphia County. But it has been held that trustees 
 are not confined to these funds ; that the acts are for their 
 benefit; that they can elect other kinds of investment, but 
 will be responsible for losses.^ In New York, there does not 
 appear to be any legislation on the subject ; but trustees are 
 bound by the rules of the court to invest in real securities, or 
 government bonds, or in the State loan, or in loans of the 
 New York Life Insurance and Trust Company.'* In New 
 Jersey, a statute authorized an investment to be made upon 
 an application to the court, but does not establish any partic- 
 ular funds, (h) In Gray v. Fox, the court lay down the 
 rule that investments must be made in government stocks, 
 
 1 Budge r. Gummon, L. R. 7 Ch. 721 ; Smethurst v. Hastings, 30 Ch. 
 D. 490 ; Olive i-. Westerman, 34 Ch. D. 70 ; Whiteley v. Learoyd, 33 Ch. 
 D. 347. 
 
 2 Acts 1832, 1838, 1850, 1852. 
 
 8 Barton's Est, 1 Pars. Eq. 24; Worrall's App., 9 Barr, 108; Twad- 
 dell's App., 5 Penn. St. 15. 
 
 * Ackerman v. Emott, 4 Barb. 626 ; and see Smith v. Smith, 4 Johns. 
 Ch. 281, 445 ; King v. Talbott, 40 N. Y . 86, 97. This case contains a full 
 discussion of the law in New York. Ilun v. Gary, 82 N. Y. 65. 
 
 (rt) See these statutes collected (b) See Craven's Case, 43 N. J. 
 
 in Loring's Trustee Handbook, 100; Eq. 416. In North Carolina, see 
 
 1 Ames on Trusts (2(1 ed), 486, n. ; Watson v. Holden, 115 N. C. 36. 
 and 9 L. R. A. 279, 280, n. 
 
 647
 
 § 459.] INYESTMENT. [CHAP. XV. 
 
 or in real security.^ In Maryland, there is neither statute 
 nor rule of court to guide the trustees. The courts do 
 not approve of changes in investments, unless express power 
 is given in the instrument of trust ; as where a testator gave 
 certain stocks in trust without direction to vary the security, 
 and the trustee disposed of the stocks and invested the money 
 in other securities, he was ordered to replace the entire 
 sum in the same stocks, although the number of shares were 
 increased by the change. ^ In Maine, New Hampshire, 
 Vermont, Michigan, and Missouri, the courts may, upon 
 application, direct trustees as to the manner of investment, 
 but no special investments are pointed out.^ If trustees 
 invest according to the direction of the courts, they are 
 not responsible for any loss. In Georgia, if trustees invest 
 in the stocks, bonds, or other securities, issued by their own 
 State, or in such other securities as shall be ordered by the 
 court, they will be exempt from loss.* In Mississippi, an 
 investment in bank stocks is allowed.^ In States where 
 there are no statutes nor rules of court regulating invest- 
 ments, trustees are bound to act in good faith and with a 
 sound discretion in investing trust-money; and if they so act 
 they are not responsible for any loss that may happen, ^ but 
 to invest in mere personal securities is not a sound discre- 
 
 1 Gray v. Fox, Saxton, 259; Lathrop v. Smalley, 23 N. J. Eq. 192; 
 Corliss V. Corliss, id. 
 
 2 Murray r. Feinour, 2 Md. Ch. 418; Evans v. Iglehart, 6 Gill & J. 192; 
 Gray v. Lynch, 8 Gill, 405; Hammond v. Hammond, 2 Bland, 30G. 
 
 8 Knowlton v. Brady, 17 N. H. 458. It is impossible to cite the statutes 
 of all the States. Practising attorneys will of course know the legislation 
 of their own States. 
 
 4 Ga. Rev. Code, § 320; Brown v. Wright, 39 Ga. 96. 
 
 6 Smyth r. Burns, 25 Miss. 422. These rules and regulations are 
 established for the protection of trustees : so long as they in good faith 
 confine their investments to those allowed by law, they are protected 
 from loss. Stanley's App., 8 Penn. St. 432; Twaddell's A pp., 9 id. 108; 
 Seidler's Est., 5 Phila. 85; Barton's Est., 1 Pars. Eq. 24; Johnson's App,, 
 43 Penn. St. 431; Morris v. Wallace, 3 id. 319; McCahan's App., 7 id. 50; 
 Hemphill's App., 18 id. 303 ; Rush's Est., 12 id. 378; Nyce's Est., 5 Watts 
 & S. 254. 
 
 6 Clark V. Garfield, 8 Allen, 427. 
 648
 
 § 460.] INVESTMENT. [CHAP. XV 
 
 tion anywhere.^ Nor is it a sound discretion for trustees 
 to subscribe trust funds to new enterprises, as for the stock 
 of new manufacturing, insurance, or railroad corporations, 
 when tlic undertaking must, in the nature of things, be ex- 
 perimental ; and it will not excuse the trustee that he sub- 
 scribes his own money to such enterprises, as it is j)crmitted 
 to him to speculate with his own money if he sees fit.^ 
 
 § 460. The instrument of trust frequently contains direc- 
 tions respecting the investment of the trust funds. If the 
 directions are so general that they do not point to any partic- 
 ular class or classes of investments, the trustees must invest 
 in those securities that are sanctioned by the court; as, if 
 the trust is to invest in "good and sufficient security," the 
 court will sanction no security not allowed by its rules and 
 orders.^ (a) If the trustee is to invest at his "discretion," 
 he cannot invest in personal securities.^ (6) The powers and 
 
 1 A nte, § 453. 
 
 2 Kimball r. Reading, 31 N. H. 352 ; Thmsen's App., 43 Penn. St. 471. 
 8 Booth V. Booth, 1 Beav. 125; Trafford ;-. Boehm, 3 Atk. 410; De 
 
 Manneville c. Crompton, 1 V. & B. 259; Wilkes v. Steward, Coop. 6; 
 Ryder v. Bickerton, 3 Swanst. 80, n.; Nance o. Nance, 1 S. C. 209; 
 VVomack i. Austin, id. 421. 
 
 * Ibid.; Pocock v. Reddington, 5 Ves. 794; Wormley v. Wormley, 
 8 Wheat. 421 ; 1 Brock. 339 ; Langstou v. OUivant, Coop. 33. 
 
 (a) See Bartol's Estate, 182 Penn. ments has the burden of proof to 
 
 St. 407; Seldner v. McCreery, 75 show that he acted, not only honestly, 
 
 Md. 287 ; Clark v. Clark, 50 N. Y. S. but also in a reasonable way. Re 
 
 1041. Stuart, 46 W. R. 41 ; lie Barker, 
 
 (6) A power given by will to id. 296. 
 trustees of the residuary estate to A trustee who is given discre- 
 invest "in such stocks, funds, and tion as to the management and in- 
 securities as they shall think fit," vestment of the trust estate, or to 
 means " shall honestly think fit." continue a testator's investments or 
 In re Smith, [1896] 1 Ch. 71; Mur- business, is still bound to observe 
 phy V. Doyle, 29 L. R. Jr. 333. the established rules as to the in- 
 
 Under the English Judicial Trus- vestment of trust funds. Mattocks 
 
 tees Act of 1896(59 & 60 Vict. c. v. Moulton, 84 IMaino, 545 ; Caspari 
 
 35), § 3, a trustee who seeks relief v. Cutciieon, 110 Mich. 86; In re 
 
 from liability for loss on invest- Tucker, [1891] 1 Ch. 724 ;/;» re Earl, 
 
 649
 
 § 4G0.] INVESTMENT. [CHAP. XV. 
 
 directions given in the instrument must be strictly followed;^ 
 thus a power to invest in bank stocks or lots of land will not 
 authorize an investment in the loan of the United States. ^ 
 A power to loan on real securities does not justify a loan 
 upon railroad bonds secured by mortgage of the road;^ nor 
 does a power to loan upon mortgage authorize an investment 
 in railroad mortgage bonds.^ A power to invest in "good 
 and sufficient securities in Virginia and Maryland," author- 
 izes a loan upon town securities.^ A direction to invest "in 
 any public stocks or securities bearing an interest," embraces 
 a coal and navigation company, that being within the popular 
 meaning of the testator.^ If there is a direction to invest 
 trust funds in real securities in a foreign jurisdiction, the 
 court will allow the investment;'^ but if no such power is 
 given, such investment will not be allowed.^ Where trus- 
 tees were authorized in their discretion to invest in a dwell- 
 ing-house for the daughter of the testator, and she was 
 married and went to reside in a foreign jurisdiction, it was 
 held, that they might invest in a dwelling-house at the place 
 of her residence, although it was in a foreign jurisdiction.^ 
 
 1 Wood V. Wood, 5 Paige, 596 ; Burrill v. Sheil, 2 Barb. 457; Woraack 
 V. Austin, 1 S. C. 421; Sanders v. Rogers, id. 452; Ihmsen's App., 43 
 Penn. St. 471. 
 
 2 Banister v. McKenzie, 6 Munf. 447. 
 
 8 ]\Iortimore v. Mortimore, 4 De G. & J. 472 ; IMant v. Leith, 15 Beav. 
 525 ; Harris v. Harris, 29 Beav. 107 ; King v. Talbott, 50 Barb. 453 ; 40 
 N. Y. 86 ; Allen v. Gaillard, 1 S. C. 279 ; Bromley v. Kelly, 39 L. J. Ch. 
 274. 
 
 * Ibid. 
 
 5 McCall V. Peachy, 3 Munf. 288. But if such securities are greatly 
 depreciated, it would be a breach of trust to invest in them. Trustees, 
 &c. V. Clay, 2 B. Mon. 386. 
 
 6 Rush's Est., 12 Penn. St. 375. See Hemphill's App., 18 Penn. St. 
 303. 
 
 ■^ Burrill v. Sheil, 2 Barb. 457. 
 8 Rush's App., 12 Penn. St. 375. 
 ® Amory r. Green, 13 Allen, 413. 
 
 39 W. R. 107; In re Kavanagh, 27 61 Conn. 87; Jones v. Jones, 86 Va. 
 L. R. Ir. 495 ; Stewart v. Parnell, 845. 
 147 Penn. St. 523 ; Clark v. Beers, 
 650
 
 CHAP. XV.] INVESTMENT. [§ 460. 
 
 Cut where they were authorized to invest in bonds, deben- 
 tures, or other securities, or the stocks or funds of any 
 colony or foreign country, they were not allowed to invest in 
 railway bonds, though guaranteed by a foreign government.^ 
 As before stated, all these powers are strictly construed; as, 
 if the trustees are authorized to loan X3000 on personal 
 securities, and they lend X5000, it is a breach of trust ;2 and 
 if the power is to loan on bond, they cannot loan on a prom- 
 issory note.^ If the trustees may loan the trust fund to the 
 husband, with the consent of the wife, they cannot allow the 
 loan to continue if the husband becomes bankrupt; and they 
 will be guilty of a breach of trust, if they do not use due 
 diligence in calling in the loan, or in collecting such divi- 
 dends as may be coming. An entire change of circumstances 
 may ehange their duty, although the wife may still desire 
 that her husband should have the use of the money.* Gen- 
 erally, where the trustees are required to invest the fund in 
 a particular manner, with the approbation of any person, such 
 requirement becomes imperative upon the request of such 
 person.^ (a) So, if any formalities are prescribed as to the 
 investment, they must be strictly complied with ; as, where 
 the written consent of a wife is a prerequisite to a loan to 
 her husband, a verl)al consent will not relieve the trustees 
 from the consequences of a breach of trust, if they act on 
 such verbal consent.*^ A subsequent consent is not sufficient 
 
 ^ In re Langdale's Settlement, Trust, L. R. 10 Eq. 39. 
 
 2 Payne v. Collier, 1 Ves. Jr. 170. 
 
 8 Greenwood v. Wakeford, 1 Beav. 576. 
 
 * Wiles V. Gresham, 2 Drew. 258 ; 24 L. J. Ch. 264 ; Langston v. Olli- 
 vant, Coop. 33 ; and see Boss v. Goodsall, 1 N. C. C. 617 ; Burt v. Ingram, 
 Lewin ou Trusts, 339 (4th ed.). 
 
 6 Cadogan v. Essex, 2 Dr. 227; Mclntire v. Zanesville, 17 Ohio St. 
 352. 
 
 6 Cocker v. Quayle, 1 R. & M. 535; Hopkins v. Myall, 2 R. & M. 86; 
 Kellaway v. Johnson, 5 Beav. 319. 
 
 (a) A discretionary power to ap- cessors, when a contrary intention 
 point to invest, confided to named does not appear. Lowe v. Couven- 
 trustees, is a personal power, and tion, 83 Md. 409 ; Blakely, Peti- 
 does not pass to the trustees' sue- tioner, 19 R. I. 324. 
 
 651
 
 § 461.] INVESTMENT. [CHAP. XV, 
 
 where a previous consent was contemplated ; ^ nor is it enough 
 for a wife to join the husband in a petition for an order that 
 a loan be made to him.^ If the trustees go beyond the pre- 
 scribed limits, neither good faith nor care nor diligence, if 
 they can accompany a departure from the direction of the 
 instrument of trust, will protect them if a loss occurs.^ If 
 it is impossible for them to invest according to the directions, 
 they must invest in the securities prescribed by the law or 
 by the court, or in the safest class of securities.^ 
 
 § 461. A direction to invest in good freehold security 
 must be strictly complied with ; ° an authority to invest in 
 ground rents authorizes an investment in redeemable ground 
 rents, that being the kind of ground rent in the place where 
 the investment is to be made ; ^ a power to invest in good 
 private security does not authorize the trustees to use the 
 funds themselves.'' Where stock is settled on a husband and 
 wife for life, with remainder to the children, with a power 
 to vary the securities for greater interest, the trustees cannot 
 purchase an annuity for one of the tenants for life.^ If, 
 however, the existing securities are unsafe, and it is proper 
 to call in the money and reinvest it, trustees may make a 
 temporary investment in safe funds until an investment can 
 be advantageously made in the securities directed by the tes- 
 tator.^ If the direction is to invest in land or any other 
 
 1 Bateraan v. Davis, 3 Madd. 98; Adams v. Broke, 1 N. C. C. 627. 
 
 2 JSTorris v. Wright, 14 Beav. 291 ; Fitzgerald v. Pringle, 2 Moll. 534 ; 
 Dunne v. Dunne, 1 S. C. 350. 
 
 3 Ackerman v. Emott, 4 Barb. 626; Spring's App., 71 Penn. St. 11; 
 Ringgold V. Ringgold, 1 H. & G. 25 ; Cloud v. Bond, 3 Myl. & Cr. 490. 
 
 4 Mclntire v. Zanesville, 17 Ohio, 352. 
 
 6 Wyatt V. AVallace, 8 Jur. 117; 1 Coop. 155, n. 
 6 Ex parte HufP, 2 Barr, 227. 
 
 ' Westover v. Chapman, 1 Col. C. C. 177; Forbes v. Ross, 2 Bro. Ch. 
 430; 2 Cox, 113; arite, §453. 
 
 8 Fitzgerald v. Pringle, 2 Moll. 534. 
 
 9 Sowerby v. Clayton, 3 Hare, 430; 8 Jur. 597; Mathews v. Brice, 6 
 Beav. 329; Ex parte Chaplin, 3 Y. & C. 397 ; Knott v. Cottee, 6 Beav. 77; 
 Brownley v. Kelly, 39 L. J. Ch. 272. 
 
 652
 
 CHAP. XV.] INVESTMENT. [§ 462. 
 
 security, it will be implied that the settlor intended the in- 
 vestment to be made in land if it could be done advanta- 
 geously, and the alternative part of the direction is to be fol- 
 lowed only in case an investment cannot be made in land; 
 and this construction will be followed unless there is some 
 other controlling consideration in the instrument.^ And if 
 trustees are authorized to lend on mortgage to three persons, 
 they cannot lend to two of them, although they get the entire 
 interest in the estate; nor can they lend to the three without 
 the mortgage at the time, although they get the security in 
 two years after. It is no excuse to say that the delay did 
 not occasion the loss. The conclusive answer is, that they 
 committed a breach of trust in not obeying the power, and 
 they must make good the loss.^ And so trustees cannot let 
 money on a mortgage to one of themselves.^ Under a power 
 to loan on mortgage they may continue existing mortgages, 
 if safe.'* 
 
 § 462. A trustee must invest the trust funds in his hands, 
 in the manner directed, within a reasonable time, although 
 no direction is given in the deed or will as to the time or 
 manner of investment. If he neglects for an unreasonable 
 time to make the investment, he may be charged with in- 
 terest; and if any loss or damage occurs to the cestui que 
 trust from the delay, the trustee must make it up.^ (a) What 
 
 ^ Earlom v. Saunders, Amb. 340 ; Cookson v. Reay, 5 Beav. 32 ; Cow- 
 ley V. HartstoDge, 1 Dow, 361 ; Hereford i\ Kavenhill, 5 Beav. 51 ; Fowler 
 V. Reynal, 3 IMac. & G. 500; 2 De G. & Sm. 749. 
 
 2 Earlom v. Saunders, Amb. 340; Cookson v. Reay, 5 Beav. 32 ; Cow- 
 ley r. Hartstonge, 1 Dow, 361 ; Hereford r. Ravenbill, 5 Beav. 51 ; Fowler 
 V. Reynal, 3 Mac. & G. .500 ; 2 De G. & Sm. 749. 
 
 8 Stickney v. Sewell, 1 Myl. & Cr. 8; v. Walker, 5 Russ. 7 ; 
 
 Fletcher v. Green, 33 Beav. 426; Francis v. Francis, 5 De G., M. & G. 
 108; Crosskill v. Bower, 32 Beav. 86; De Jarnette v. De Jarnette, 41 Ala. 
 708. 
 
 * Angerstein r. Martin, T. & R. 239 ; Ames r. Parkinson, 7 Beav. 379. 
 
 ^ Lyse V. Kingdom, 1 Coll. 184; Bates r. Scales, 12 Yes. 402: Ryder 
 V. Bickerton, 3 Swanst. 80 ; Trafford v. Boehm, 3 Atk. 440 ; Lomax r. 
 
 (a) See Merkel's Estate, 131 tate, 135 id. 585; Whitecar's Es- 
 Penn. St. 584; Stambaugh's Es- tate, 147 id. 368; Noble's Estate, 
 
 653
 
 § 462.] INVESTMENT. [cHAP. XV. 
 
 is a reasonable time depends upon circumstances. When the 
 trustees were directed to invest in the purchase of land with 
 all convenient speed, a year was held to be a reasonable 
 time. I But where the trustees arc directed to invest \nfree- 
 hold securities, they will not be charged with interest until it 
 has been shown that they could have invested according to 
 the direction ; for it is not always practicable to procure such 
 securities. 2 So a year from the testator's death was consid- 
 ered a reasonable time within which to make an investment 
 in United States stock. ^ On the other hand, the Supreme 
 Court of the United States allowed three months as a rea- 
 sonable time within which to invest capital sums of a trust 
 fund paid in to a banker, and charged the trustee for the 
 sum lost by the failure of the banker after that time.^ In 
 other cases, six months have been allowed as a reasonable 
 time within which to invest trust funds ; and trustees have 
 been charged with interest when they kept the money unin- 
 vested for a longer time.^ But where the trustees make no 
 effort to invest the money, they may be charged with interest 
 from a period earlier than six months.^ Where a trustee or 
 
 Pendleton, 3 Call, 538 ; Garniss v. Gardner, 1 Edw. Ch. 128 ; Schieffelin 
 V. Stewart, 1 Johns. Ch. 620; Chase v. Lockerman, 11 G. & J. 185; Arm- 
 strong!;. Miller, 6 Ham. 118; Handly v. Snodgrass, 9 Leigh, 484 ; Aston's 
 Est., 5 Whart. 228; In re Thorp, Davies, 290; Shipp v. Hettrick, 63 N. C. 
 329 ; Owen v. Peebles, 42 Ala. 338. 
 
 1 Parry v. Warrington, 6 Madd. 155 ; Johnson v. Newton, 11 Hare, 
 160. 
 
 2 Wyatt r. Wallis, 1 Coop. 154, n. ; 8 Jur. 117. 
 
 3 Cogswell V. Cogswell, 2 Edw. Ch. 231. This was in analogy to the 
 payment of legacies, which may be done in one year; a trustee with ready 
 money ought to invest with more promptness. 
 
 * Barney v. Saunders, 16 How. 543. 
 
 5 Dunscomb v. Dunscomb, 1 Johns. Ch. 508; Manning v. Manning, 
 id. 527; Merrick's Est., 2 Ash. 485; Worrall's App., 23 Penn. St. 44 ; 
 Armstrong v. Walkup, 12 Grat. 608; Hooper v. Savage, 1 Munf. 119; 
 Frey v. Frey, 2 C. E. Green, 72. 
 
 6 Ringgold V. Ringgold, 1 H. & G. 11; Witmer's App., 87 Penn. 
 
 43 Pitts. L. J. 365; Hetfield v. De- Estate, 18 Oregon, 168; 1 Ames on 
 baud, 54 N. J. Eq. 371; HoUaday's Trusts (2d ed.), 489, n. 
 654
 
 CHAP. XV.] INVESTMENT. [§ 462. 
 
 executor is directed to invest a legacy immediatehj in stocky 
 and he retains the sum for the period of one year or more, or 
 for an unreasonable time, and the price of the stock rises, he 
 will be ordered to purchase as much stock as could have 
 been purchased at the time the fund ought to have been 
 invested.' Where trustees were directed to invest in the 
 funds, and they paid the money into a banker's with direc- 
 tions to invest in bank annuities, which the banker neg- 
 lected to do, and the trustees made no inquiry for five 
 months, they were held, after the failure of the banker, for 
 the money or the stock at the option of the cestui que trust.^ 
 Trustees and guardians are held to a stricter rule in relation 
 to investments than executors acting as trustees, for trustees 
 and guardians generally take an estate ready to be invested ; 
 and trustees will be held to a stricter rule in relation to 
 capital sums, than in relation to current income from interest, 
 dividends, rents, and other smaller sums ; thus in Barney v. 
 Saunders,^ before cited, three months were held a reason- 
 able time within which trustees ought to have invested 
 capital sums paid into the banker's, and they were held 
 responsible for the loss of capital after that time by the fail- 
 ure of the banker, while they were not held liable to replace 
 small sums paid into the same banker's from the rents, in- 
 terest, and dividends upon the same estate. An executor 
 will not in general be charged with interest for not investing 
 before the expiration of a year from the testator's death.* 
 
 St. 120. Two months not an unreasonable allowance of time for 
 reinvestment. 
 
 1 Byrchall v. Bradford, 6 ^ladd. 2-35 ; Pride r. Fooks, 2 Beav. 430 ; 
 Watts V. Girdlestone, 6 Beav. 188; Clough v. Bond, 3 IMyl. & Cr. 406; 
 Robinson v. Robinson, 1 De G., M.&G. 250; Phillipson v. Gatty,7 Hare, 
 516. 
 
 2 Challen v. Shippam, 4 Hare, 555. 
 
 8 Barney v. Saunders, IG How. 545; Lomax r. Pendleton. 3 Call .^138. 
 
 * But where it is the duty of executors within a reasonable time to 
 separate a legacy from the estate, and to invest it to accumulate, or for 
 the support and maintenance of the legatee, neglect to do so makes them 
 chargeable with legal interest ; and they will not be allowed to limit their 
 liability by showing the rate of interest received upon the general fund, 
 
 655
 
 § 463.] INTESTMENT. [CHAP. XV. 
 
 A year is a reasonable time within which an executor may 
 call in the testator's estate and pay off his liabilities; and 
 it is necessary, during that time, that the executor should 
 keep the money on hand. In most States an executor is 
 allowed that time by statute; and he is exempt from suit by 
 creditors during that year. After that time, if an executor 
 keeps money in his hands without any apparent reason, ex- 
 cept for the purpose of using it, it becomes a breach of trust 
 or negligence ; and the court may charge him with interest, 
 or with the principal sum if lost.^ So an executor will be 
 charged with interest during the year, if he receives interest 
 by loaning or using the money. ^ 
 
 § 463. Trustees ought not to mix trust-money with other 
 moneys, and take a joint mortgage for the whole, for this 
 would be to complicate the trust with the rights of strangers ; 
 nor should a mortgage in such case be taken in the name of a 
 common trustee, for that would be a delegation of the rights 
 of the trustee;^ but where the trust fund was very small, it 
 was held to be proper for a trustee to put some of his own 
 money with it in order to loan it to the best advantage on a 
 mortgage.* Trustees must personally see to it, that the 
 security is forthcoming upon parting with the money ;^ as, 
 where they allowed their solicitors to receive the money upon 
 
 nor be excused by the fact that it was for the interest of the residuary 
 legatee to have the funds kept together. Fowler v. Colt, 25 N. J. Eq. 
 202. 
 
 1 Forbes v. Ross, 2 Cox. 115; Flanagan v. Nolan, 1 Moll. 85; Moyle 
 V. Moyle, 2 R. & M. 710; Johnson v. Newton, 11 Hare, 160; Hughes v. 
 Empson, 22 Beav. 181 ; Johnston y. Prendergast, 28 Beav. 480 ; William- 
 son V. Williamson, 6 Paige, 300; Dillard ». Tomlinson, 1 Munf. 183; 
 Carter v. Cutting, 5 Mimf . 224 ; Minuse v. Cox, 5 Johns. Ch. 441 ; Cogs- 
 well V. Cogswell, 2 Edw. Ch. 231. 
 
 2 Lund V. Lund, 41 N. H. 359 ; Steams v. Brown, 1 Pick. 530 ; Wyman 
 V. Hubbard, 13 Mass. 232; Griswold v. Chandler, 5 N. H. 499 ; Mathes v. 
 Bennett, 21 N. H. 199; Wendell v. French, 19 N. H. 205; Chambers v. 
 Kerns, 6 Jones, Eq. 280. 
 
 8 Lewin on Trusts, 268. 
 * Graves's App., 50 Penn. St. 189. 
 6 Cogbill V. Boyd, 77 Va. 450. 
 656
 
 CHAP. XV.] INVESTMENT. [§ 463. 
 
 representations that the mortgage was ready, and there was 
 no mortgage, and the solicitors misapplied the money, the 
 trustees were held to make up the loss.^ When the money 
 is paid in to a banker or broker for investment, the trustees 
 must sec that the investment is made at once, and the securi- 
 ties taken in the proper form, or they will be liable for any 
 loss that may hajjpen ;^ or where money is suffered to remain 
 in the hands of third persons unnecessarily, and a loss hap- 
 pens, the trustees must make it up.^ So, if the trustee pays 
 the money into a bank in his own name, and not in the name 
 of the trust, he will be responsible for the money in case of 
 the failure of the bank.* But as between the trustee, his 
 representatives, and the cestui que trust, the cestui que trust 
 may follow the money into the hands of the banker. If it is 
 a simple account, not complicated by mixture with deposits 
 of the trustee's own moneys and withdrawals, it is a simple 
 debt which the cestui que trust may claim to be held and 
 applied to the trust; but the deposit of the trustee's own 
 money, and the withdrawal of part by checks, will not de- 
 feat the right of the cestui que trust. The rule to be applied 
 in such case is stated in Pennell v. Deffell as follows : the 
 checks are to be applied to the earliest items of deposit, 
 whether of the trust fund or of the trustee's own money, and 
 such earliest items will be reduced pro tanto. If anything 
 of the trust fund remains in the hands of the banker under 
 
 1 Rowland v. TVitherden, 3 Mac. & G. 568 ; Ilanbury v. Kirkland, 3 
 Sim. 265; Broadhuvst v. Balguy, 1 N. & C. Ch. 16; Ghost r. Waller, 9 
 Beav. 497 ; 13 Beav. 336. 
 
 2 Challen v. Shippam, 4 Hare, 555; Byrne v. Norcott, 13 Beav. 336. 
 
 8 Barney v. Saunders, 16 How. 543 ; Anon. Lofft, 492 ; Fletcher v. 
 Walker, 3 Madd. 73 ; Moyle v. Movie, 2 R. & M. 701 ; Macdonnell v. 
 Harding, 7 Sim. 178; Massey v. Banner, 4 Madd. 419; IJ. & W. 241 ; 
 Lowry v. Fulton, 9 Sim. 115; Mathews v. Brice, 6 Beav. 239; Munch v. 
 Cockerell, 9 Sim. 115 ; Johnson v. Newton, 11 Hare, 160. 
 
 4 Ibid. ; Wren v. Kirton, 11 Ves. 377 ; Pennell v. Deffell, 4 De G., M. 
 & G. 392; Ex parte Hilliard, 1 Ves. Jr. 89; Rocke v. Hart, 11 Ves. 61 ; 
 Freeman v. Fairlee, 3 Mer. 39 ; Jenkins v. Walter, 8 G. & J. 218; Luken's 
 App., 7 AVatts & S. 48; Stanley's App., 8 Peuu. St. 131 ; Royer's App., 
 11 id. 36. 
 
 VOL. I. — 42 657
 
 § 464.] INVESTMENT. [CIIAP. XV. 
 
 this rule, it will be applied to the purposes of the trust.* 
 This is a rule for the protection of the cestui que trust in 
 case of the failure or bankruptcy of the trustee. But it does 
 not affect the general rule before stated, that where a trustee 
 deposits the trust-money in his own name, or mixes the 
 money with his own, he must pay interest for it, and be 
 responsible for the principal, in case of the failure of the 
 banker or of any other loss.^ 
 
 § 464. Trustees cannot use trust-moneys in their business, 
 nor embark it in any trade or speculation;^ nor can they 
 disguise the employment of the money in their business, 
 under the pretence of a loan to one of themselves,* nor to a 
 partnership of which they are members;^ (a) nor can the 
 
 1 Pennell v. Deffell, 4 De G., M. & G. 392 ; Frith v. Cortland, 2 Hem. 
 & M. 417; 34 L. J. Ch. 301 ; Kip v. Bank of N. Y., 10 Johns. 65 ; Ken- 
 nedy v. Strong, id. 289 ; School, &c, v. Kirwin, 25 111. 73 ; McAllister e. 
 Commonwealth, 30 Penn. St. 536; Morrison v. Kinstra, 55 Miss. 71. 
 
 2 Mumford v. Murray, 6 Johns. Ch. 1 ; Kellett v. Rathbun, 4 Paige 
 102; Jacot v. Emmett, 11 Paige, 142; De Peyster v. Clarkson, 2 Wend. 77; 
 Garniss v. Gardner, 1 Edw. Ch. 128 ; Spear v. Tinkham, 2 Barb. Ch. 211; 
 Merrick's Est., 2 Ash. 485; Dyott's Est., 2 Watts & S. 565; Beverleys v. 
 Miller, 6 Munf . 99 ; Diffeuderffer v. Winder, 3 G. & J. 341 ; Peyton v. 
 Smith, 2 Dev. & B. Eq. 325; Jameson v. Shelly, 2 Humph. 198; Kerr 
 V. Laird, 27 Miss. 544; In re Thorp, Davies, 290. 
 
 3 Tebbs V. Carpenter, 1 Madd. 304 ; Lee v. Lee,2 Vern. 548; Adye v. 
 Feuilleteau, 1 Cox, 24; Piety v. Stace, 4 Ves. 622; Docker ii. Somes, 2 
 Myl. & K. 655; Palmer v. Mitchel, id. 672, n.; Miller v. Beverleys, 4 Hem. 
 & M. 415; In re Thorp, Davies, 290; Manning v. Manning, 1 Johns. Ch. 
 527 ; Brown v. Ricketts, 4 Johns. Ch. 303. At one time it was held that 
 executors might employ money in their trade, especially if they were 
 solvent, and if the assets were generally, and not specifically, bequeathed. 
 Grovesnor V. Cartwright, 2 Ch. Cas. 212; Linch v. Cappey, id. 35; Brown 
 V. Litton, 1 P Wms. 140 ; Ratcliffe v. Graves, 2 Ch. Cas. 152; Bromfield 
 V. Wytherley, Pr. Ch. 505 ; Adams v. Gale, 2 Atk. 106 ; Child v. Gibson, 
 id. 603 ; but Mr. Lewin says that Lord North overruled above forty 
 cases, and a twenty years' practice, in Ratcliffe i-. Graves, 1 Vern. 196 ; 
 Newton v. Bennett, 1 Bro. Ch. 361 ; Adye v. Feuilleteau, 1 Cox, 25 ; 
 Lewin on Trusts, 255, 276. 
 
 4 Townend v. Townend, 1 Gif. 201. 
 
 5 Kyle V. Barnett, 17 Ala. 306. 
 
 (a) See 30 Am. L. Reg. (n. s.) 569. 
 658
 
 CHAP. XV.] INVESTMENT. [§ 4C5 
 
 money be loaned on security to be rcloancd back to the 
 trustee, or by the trustee at a j)rofit.* If a trustee makes such 
 use of the money, he will be responsible for all loss, and he 
 may be compelled to pay the highest rate of interest; or the 
 cestui que trust may follow the money, and insist upon all 
 the prolits made by such use; and if the trustee is a trader or 
 business man, he will be presumed to use and employ the 
 money in his business if he deposits it in bank in his own 
 name; for such business men must generally keep some 
 money in bank for the purposes of their credit, and such 
 trust-money answers the purpose as if it was their own.- If 
 the trust fund is employed in business, the whole increase 
 will belong to the fund; but if the trustee is also one of the 
 beneficiaries, he will be entitled to his share, and it will 
 go to his representatives upon his death. ^ Where an exec- 
 utor bought stock in his own name with the trust fund, 
 and the stock rose in price, it was held that he was liable for 
 the market-price of the stock at the time of the decree. If 
 the investment is profitable, the cestuis que trust are entitled 
 to the profits ; if disastrous, they are entitled to interest on 
 the money ; and if the investment has been made with funds 
 of the estate mingled with funds of the executor in various 
 stocks, and the funds of the estate cannot be traced and iden- 
 tified in any particular stocks, the cestuis que trust are enti- 
 tled to select the most profitable stocks.* 
 
 § 465. There is said to be a distinction between an orig- 
 inal investment improperly made by trustees, and an invest- 
 ment made by the testator himself, and simply continued by 
 a trustee ; ^ (a) but it is a distinction that cannot be safely 
 
 1 Ratcliffe v. Graves, 2 Ch. Cas. 152 ; 1 Vern. 19G. 
 
 2 Treves v. Town.shend, 1 Bro. Ch. 284; Moons v. De Bernales, 1 Russ. 
 301 ; In re Ililliard, 1 Ves. Jr. 90 ; Sutton i'. Sharp, 1 Russ. 146: Rocke 
 V. Hart, 11 Ves. 61 ; Brown v. Southhouse, 3 Bro. Ch. 107; Lamb's App., 
 58 Penn. St. 142. 
 
 8 Hook V. Dyer, 47 Mo. 214. 
 * Norris's App., 71 Penn. St. 106. 
 
 6 Powell V. Evans, 5 Ves. 841 ; Clough r. Bond, 3 Myl. cSc Cr. 496 ; 
 
 («) See fu re Chapman, [189G] 2 Shinn's Estate, 166 Penn. St. 121 ; 
 
 Ch. 703; Re Roth, 74 L. T. 50; Johns v. Herbert, 2 App. D. C. 485; 
 
 659
 
 § 465.] 
 
 INVESTMENT. 
 
 [chap. XV. 
 
 acted upon. If a testator gives any directions in his will 
 to continue his investments already made, trustees must of. 
 course follow such directions; and if they follow them in 
 good faith, they will not be liable for any losses, unless they 
 are negligent in failing to change an investment, when it 
 ought to be changed to save it ; (a) for it cannot be supposed 
 that the direction of a testator to continue a certain invest- 
 ment relieves the trustees from the ordinary duty of watch- 
 ing such investment, and of calling it in when there is 
 imminent danger of its loss by a change of circumstances. 
 If no directions are given in a will as to the conversion and 
 investment of the trust property, trustees to be safe should 
 take care to invest the property in the securities pointed out 
 by the law. It is true that a testator during his life may 
 deal with his property according to his pleasure, and invest- 
 ments made by him are some evidence that he had confi- 
 dence in that class of investments; but, in the absence of 
 
 Harvard Coll. v. Amory, 9 Pick. 446 ; Thompson v. Brown, 4 Johns. Ch. 
 628; Knight v. Plymouth, 3 Atk. 480; 1 Dick. 120; Rowth v. Howell, 3 
 Ves. 565 ; Wilkinson v. Stafford, 1 Ves. Jr. 41; Vez v. Emery, 5 Ves. 144 ; 
 Barton's Est., 1 Pars. Eq. 24; Murray v. Feinour,2 Md. Ch. 418; Brown 
 V. Campbell, Hopkins, 233; Smith v. Smith, 4 Johns. Ch. 283. See 11 
 Amer. Law Reg. 208 (n. s.), April, 1874 ; Pierce v. Bowker, 130 Mass. 
 262, where a trustee in good faith continued an investment in railroad 
 stock originally made by his testator, until, gradually falling in value, it 
 became worthless. 
 
 Buerhaus v. De Saussure, 41 S. C. 
 457 ; Porter's Estate, 25 N. Y. S. 
 822. In such case, the trustee is 
 bound to use good judgment and 
 diligence, but he is not an insurer 
 against depreciation. In re Hurst, 
 67 L. T. 96. 
 
 In McLouth v. Hunt, 154 N. Y. 
 179, where the investments in ques- 
 tion, which were chiefly in govern- 
 ment bonds, were made by the tes- 
 tator, and had, at her death, a 
 market value in excess of their face 
 value, and the will directed that the 
 660 
 
 " full income " should be paid to 
 the life-tenant, it was held to be the 
 testator's intention that the life-ten- 
 ant's income should not be dimin- 
 ished to make up the excess or 
 premium. 
 
 (a) See In re Sharp, 45 Ch. D. 
 286 ; Pinney v. Newton, 66 Conn. 
 141; Stong's Estate, 160 Penn. St. 
 13; Sheffield v. Parker, 158 Mass. 
 330; Griggs v. Veghte, 47 N. J. 
 Eq. 179; Grinnell v. Baker, 17 
 R. I. 41 ; Eldredge v. Greene, id. 17.
 
 CHAP. XV.] INVESTMENT. [§ 466. 
 
 directions in the will, it is more rcasonaljlc to suppose that 
 a testator intended that his trustees should act according to 
 law. Consequently, in States where the investments which 
 trustees may make are pointed out by law, the fact that the 
 testator has invested his property in certain stocks, or loaned 
 it on personal security, will not authorize trustees to continue 
 such investments beyond a reasonable time for conversion 
 and investment in regular securities.^ But in States where 
 there are no fixed funds or securities in which trustees shall 
 invest, the fact that a testator has invested his property in 
 particular stocks, shares of corporations, mortgages, or other 
 securities, thus indicating his confidence in such invest- 
 ments, will go far to justify the trustees in continuing 
 them. 2 So trustees, in the usual course of dealing, may 
 take notes on short time for small sums of rent due their 
 estate, that having been the usual course of dealing with 
 the tenants by the testator. ^ Taking all the cases together, 
 it would appear to be a settled principle that trustees are 
 not justified, in the absence of express or implied directions 
 in the will, in continuing an investment permanently, made 
 by the testator, which they would not be justified themselves 
 in making. The principle probably has this qualification, 
 that if a trustee continue such investment in good faith, and 
 a loss happens, he would be held to replace the original 
 sum only, without interest.* 
 
 § 466. Except upon emergency, to protect the fund from 
 depreciation, or to convert wasting securities to those of a 
 permanent character, or investments in securities that are 
 not authorized by law into such as are allowed, trustees 
 may not sell or vary specific securities given in trust, nor 
 securities left by a testator in which he has himself invested 
 
 1 Hemphill's App., 18 Penn. St. 303 ; Fray's App., 34 id. 100, over- 
 rules the case of Barton's Est., 1 Pars. Eq. 24; Kimball v. Reading, 11 
 Foster, 352. 
 
 2 Harvard Coll. v. Amory, 9 Pick. 446. 
 8 Smith V. Smith, 4 Johns. Ch. 283. 
 
 * Lowson V. Copelaud, 2 Bro. Ch. 157; Tebbs v. Carpenter, 1 Madd. 
 293. 
 
 661
 
 § 466.] INVESTMENT. [CHAP. XV. 
 
 the funds.^(a) Nor can they change the character of the 
 investments from realty to personalty, or vice versa, without 
 special authority. ^ And if, without authority, trustees 
 change investments properly made for others improper or 
 unauthorized by law, they may be required to replace the 
 securities sold, and also to invest any profits which may 
 have accrued in the same securities ; ^ or the cestui que trust 
 may elect to take the money with interest upon it.* And 
 
 1 Angell V. Dawson, 2 Y. & C. 316 ; Flyer v. Flyer, 3 Beav. 550; Ne- 
 ville V. Fortescue, 16 Sim. 333; Boys i;. Boys, 28 Beav. 436; Murray v. 
 Feinour, 2 Md. Ch. 418 ; Ward v. Ketchen, 30 N. J. Eq. 31 ; Crackelt v. 
 Bethuiie, 1 Jac. & W. 566; Witter v. Witter, 3 P. Wms. 100; Hammond 
 I'. Hammond, 2 Bland, 306. But where the trustee has performed, with- 
 out authority, an act which, at the time it was done, was obviously for the 
 benefit of all concerned, and -which upon proper application would have 
 been ordered, his act will be ratified, and held of the same validity as if 
 previously ordered. Gray v. Lynch, 8 Gill, 405. Where trustees under 
 a will exceeded their power by buying real estate with trust funds, and 
 continued to buy and sell, at first with a profit, but ultimately with a loss 
 of a large part of the fund, no lack of good faith being found, they were 
 held liable for the amount of the trust fund before the first purchase of 
 real estate only, with interest from the time the beneficiary should have 
 received the income. Baker v. Disbrow, 3 Redf. (N. Y.) 348. 
 
 2 Post, § 602, et seq. ; Quick v. Fisher, 9 N. J. Eq. 802. 
 
 3 Powlett V. Herbert, 1 Ves. Jr. 297; Evans v. Inglehart, 6 Gill & J. 
 192. In such cases of unauthorized varying the securities the trustee 
 takes upon himself the burden of proving entire bona Jides, and that there 
 was reasonable ground to believe that the fund would be benefited ; and 
 if this can be shown the courts will sustain his action. Washington i'. 
 Emery, 4 Jones (N. C), 32; Cornwise v. Bourgum, 2 Ga. Dec. 15. 
 
 4 Forrest v. Elwes, 4 Ves. 497 ; Fowler v. Reynall, 2 De G. & Sm. 
 749; 3 ISIac. & G. 500. 
 
 (a) See Clark v. Trelawney, 60 Citizens' Nat. Bank v. Jefferson, 88 
 
 L. T. 620; Re Walker, 62 id. 449; Ky. 6.31. In Drake v. Crane, 127 
 
 Spencer v. Weber, 49 N. Y. S. 687 ; Mo. 85, trustees were held justified 
 
 Jones V. Atchison, &c. R. Co., 150 in using trust funds in the erection 
 
 Mass. 304; Hodges' Estate, 66 Vt. of a hotel to aid in developing and 
 
 70; Smith ?;. Hall (R. I.), 37 Atl. enhancing the value of the trust real 
 
 698 ; Hannah v. Carnahan, 65 Mich, estate. 
 
 601; Rabb v. Flenniken, 29 S. C. A power to reinvest is not necessa- 
 
 278 ; Powers v. Bullwinkle, 33 S. C. rily exhausted by a single exercise 
 
 293; Claiborne v. Holland, 88 Va. thereof. Hayes r. Applegate (Ky.), 
 
 1046; Taylor v. Kemp, 86 Ga. 181; 39 S. W. 436. 
 662
 
 CHAP. XV.] INVESTMENT. [§ 466. 
 
 even if trustees have express power to vary the securities, 
 they will not be allowed to do so capriciously, or without 
 some apparent object;^ and they ought not to sell out an 
 investment without having in view an immediate reinvest- 
 ment: if they do so, they may be held to pay the loss that 
 may occur. ^ If an investment in a particular fund or stock 
 is directed by a testator, it cannot be varied except by the 
 consent of all the parties interested; and if there are par- 
 ties not sui juris, or not in being, the court itself will not 
 order a change.^ Where an investment was not to be varied 
 without the consent of the testator's wife, and she waived 
 the provisions of the will, her consent was still held neces- 
 sary.* In those States where there are no stocks, funds, or 
 securities, prescribed by law, or by the order of court, in 
 which trustees must invest in order to be safe, and invest- 
 ments are once made by trustees in safe and proper securi- 
 ties, or where investments are left by the testator in such 
 securities, the courts will be very adverse to a change, and 
 will not allow one, except for some very controlling motive. 
 The reason is, that where there is no rule governing invest- 
 ments by trustees, except that they shall act in good faith 
 and upon a sound discretion, courts are very averse to change 
 proper investments once made, and select others by so very 
 indefinite a rule.^(a) 
 
 1 Brice v. Stokes, 11 Ves. 324 ; De Manneville v. Crompton, 1 V. & B. 
 359 ; Fowler v. Reynall, :i Mac. & G. 500. 
 
 2 Ilanbury v. Kirkland, 3 Sim. 265 ; Broadhurst v. Balguy, 1 Y. & C 
 Ch. 16 ; Watts v. Girdlestone, 6 Beav. 190. 
 
 « Wood V. Wood, 5 Paige, 596; Trans. University r. Clay, 2 B. Mon. 
 38G; Contee t'. Dawson, 2 Bland, 264; Deaderick v. Cantiell, 10 Yerg. 
 263; Burrill v. Sheil, 2 Barb. 457; Persoueau v. Personeau, 1 Des. 521; 
 Lamb's App., 58 Penn. St. 142. 
 
 * Plympton v. Piympton, 6 Allen, 178. 
 
 6 Murray r. Feinour, 2 Md. Ch. 418. 
 
 (a) Trustees expressly empow- the testator's business, and in carry- 
 
 ered by the will to postpone the sale ing on the business with intent to 
 
 and conversion of any part of the benefit the tenant for life whom the 
 
 testator's estate for such time as will entitles to the profits until a 
 
 seems expedient to them were held sale is made. /» re Crowther, 
 
 justified in postponing the sale of [1895], 2 Ch. 56. Such power ei- 
 
 663
 
 § 467.] 
 
 INVESTMENT. 
 
 [chap. XV. 
 
 § 467. If trustees make an improper investment with the 
 knowledge, assent, and acquiescence, or at the request of the 
 cestui que trust, they cannot be held to make good the loss, 
 if one happens ; ^ but the cestuis que trust, to be affected by 
 such consent or acquiescence, must be sui juris, and capable 
 of acting for themselves ;2 if, therefore, they are married 
 women, or minor children, or other persons incapacitated, 
 or under disability, they cannot be bound by any alleged 
 acquiescence, nor by their urgent requests,^ although a mar- 
 
 1 Booth V. Booth, 1 Beav. 125 ; Langford r. Gascoyne, 11 Ves. 333 ; 
 Nail 17. Punter, 5 Sim. 5.55; Farrar v. Barraclough, 2 Sm. & G. 231; 
 Broadhurst v. Balguy, 1 Y. & C. Ch. 16 ; Raby v. Ridehalgh, 7 De G., 
 ]M. & G. 104 ; Walker v. Symonds, 3 Swanst. 64 ; Munch v. Cockerell, 5 
 Myl. & Cr. 178; Poole v. Munday, 103 Mass. 174; Brice v. Stokes, 11 
 Yes. 319. 
 
 2 Buckeredge ?'. Glasse, 1 Cr. & Phil. 135. 
 
 3 Walker v. Symonds, 3 Swanst. 69 ; Hopkins v. Myall, 2 R. & M. 86 ; 
 Ryder v. Bickerton, 3 Swanst. 80, n. ; March v. Russell, 3 Myl. & Cr. 31 ; 
 
 pressly given to carry on a business, 
 accompanied by a direction to sell, 
 will not justify the trustee in carry- 
 ing on the business indefinitely, but 
 only for a reasonable time. In re 
 Smith, [1896] 1 Ch. 171, where two 
 years from the testator's death was 
 deemed a reasonable time. Such a 
 power subjects the general assets of 
 the estate to payment for goods 
 bought on the executor's credit to 
 carry on the business. Willis v. 
 Sharp, 115 N. Y. 396. It does 
 not enable the trustee to mort- 
 gage real estate for debts incurred 
 by him in carrying on the busi- 
 ness. In re Webb, 63 L. T. 545 ; 
 see In re Jones, 61 id. 661. In 
 general, when debts are contracted 
 by trustees who are authorized to 
 carry on business, their creditors 
 can only resort to the trust fund 
 ■when the trustees are entitled to be 
 indemnified therefrom, and the 
 664 
 
 creditors reach it only by being sub- 
 stituted to the equities of the trus- 
 tees. Dowse V. Gorton, 40 Ch. D. 
 536. See Mason v. Pomeroy, 151 
 Mass. 164, 167 ; 154 id. 481 ; Wod- 
 drop V. Weed, 154 Penn. St. 307; 
 Young V. Weed, id. 316. 
 
 It is not a breach of trust for the 
 trustee to set up for himself in a 
 similar kind of business, if there is 
 no solicitation of old customers or 
 deception ; but such an act on his 
 part is ground for his removal as 
 trustee, as his position is inconsis- 
 tent with the best interests of the 
 trust. Moore r. McGlynn, [1894] 
 1 Ir. R. 74. 
 
 Executors are not bound to carry 
 out the testator's contracts, which 
 ■were personal and bound him only. 
 Marvel r. Phillips, 162 Mass. 399; 
 see Russell r. Buckhout, 87 Hun, 
 46 ; Cox r. Martin, 75 Miss. 229.
 
 CHAP. XV.] 
 
 INVESTMENT. 
 
 [§ 467. 
 
 ried woman may acquiesce in the investment of trust prop- 
 erty, given to her sole and separate use, in such manner that 
 she cannot afterwards complain of the investment as im- 
 proper.^ But in order that the cestuis que trust may be bound 
 by their acquiescence in an improper investment, there must 
 be, on their part, full knowledge of all the facts and circum- 
 stances;"'^ and the trustee must be free from all suspicion of 
 misrepresentation or concealment. ^ (a) The remainder-man 
 
 Nail V. Punter, 5 Sim. 55G ; Kellaway v. Johuson, 5 Beav. 319 ; Bateman 
 r. Davis, 3 Madd. 98; Cocker v. Quayle, 1 R. & M. 535; Murray v. 
 Feinour, 2 Md. Ch. 422 ; Bartou's Est., 1 Pars. Eq 47 ; Keut v. Plumb, 
 57 Ga. 207. 
 
 1 Mantf. Leith, 15 Beav. 524; Brewer v. Swirles, 2 Sm. & G. 219; 
 Sherman v. Parish, 53 N. Y. 483. But she may maintain a suit to cor- 
 rect the irregularity, although she cannot claim anything as for a breach 
 of the trust. Ibid. 
 
 2 Munch i^. Cockerell, 5 Myl. & Cr. 178; Montford v. Cadogan, 17 
 Ves. 489. And they must be apprised of the effect of their legal rights. 
 Adair v. Brimmer, 74 N. Y. 539. 
 
 8 Burrows v. Walls, 5 De G., M. & G. 233 ; Underwood }•. Stevens, 1 
 Mer. 712; Walker v. Symonds, 3 Swanst. 1. 
 
 (a) Nichols, Appellant, 157 Mass. 
 20; McKim v. Glover, 161 id. 418; 
 White V. Sherman, 168 111. 589; 
 New York Life Ins. Co. v. Kane, 
 45 N. Y. S. 543 ; English v. ]Mc- 
 Intyre, 51 id. G97 ; Smith v. Hew- 
 lett, id. 910; 40 Am. Dec. 518. An 
 investment on securities of a de- 
 scription authorized by the trust, 
 where the breach of trust consists 
 only in not exercising due caution 
 in taking it, stands on a different 
 footing from an investment of an 
 unauthorized description, which the 
 beneficiary must either accept or re- 
 ject. In re Salmon, 42 Ch. D. 351 ; 
 1 Ames on Trusts (2d ed.), 487, and 
 note. But the trustee's liability for 
 an improper investment is not af- 
 fected by the fact that the security 
 upon which it was made has since 
 been disposed of, as against a bene- 
 
 ficiary who never consented thereto 
 or impeded the trustee's obtaining 
 the benefit of such investment. 
 Head v. Gould, [1898] 2 Ch. 250. 
 
 A trustee who distributes a trust 
 fund among strangers at the request 
 of a beneficiary, and upon his cove- 
 nanting to indemnify him, cannot 
 afterwards recover under the cove- 
 nant for the loss of a beneficial 
 interest in the fund to which he 
 subsequently becomes entitled. 
 Evans v. Benyon, 37 Ch. D. 329 ; 
 Crichton v. Crichton, [1895] 2 Ch. 
 853, 858. 
 
 A pretended investment, when 
 fraudulent, as when a trustee seeks 
 to place among the trust assets 
 doubtful or worthless securities 
 owned by himself, is voidable at the 
 option of the beneficiary, to whom 
 any third party participating in the 
 6 Go
 
 § 467.] INVESTMENT. [CHAP. XV. 
 
 cannot acquiesce in an investment, until his interest falls 
 into possession, so as to be bound.' If the improper invest- 
 ment has been made, at the request of the tenant for life, 
 and such tenant has received an increased income by reason 
 of the improper investment, such increased income can be 
 recovered back from the tenant for life.^ But if the tenant 
 for life protested against the illegal investment, and desired 
 the trustees to make a proper investment, the increased 
 income from the illegal investment cannot be recovered 
 back. 3 In all cases the assent to an illegal investment must 
 be so formal that the trustees are justified in acting upon it. 
 If it is a mere expression that a certain investment would 
 be safe, without any intention that the trustees should act 
 upon it, the cestui que trust will not be bound.^ So an 
 assent to a particular investment cannot justify a subsequent 
 mismanagement of the investment.^ And acquiescence by 
 the cestui que trust will not be presumed from mere lapse of 
 time, if he has done nothing to acknowledge it, or has re- 
 ceived no benefit.^ Any party whose rights are endangered 
 by an improper or unauthorized investment may apply to 
 the court for redress ; ^ but if the investment was made by 
 mistake, or has been corrected, the trustees will not be re- 
 moved, or they will not be deprived of the funds. ^ 
 
 1 Bennett v. CoUey, 5 Sim. 181; 2 Myl. & K. 225; Brown v. Cross, 14 
 Beav. 105. 
 
 2 Dimes v. Scott, 4 Russ. 195; Mehrtens v. Andrews, 3 Beav. 72; 
 Howe V. Dartmouth, 7 Ves. 150; Mills v. Mills, 7 Sim. 101 ; Pickering v. 
 Pickering, 4 Myl. & Cr. 289; Holland v. Hughes, 16 Ves. 114; Hood v. 
 Clapham, 19 Beav. 90 ; M'Gachen v. Dew, 15 Beav. 84; Raby v. Ride- 
 halgh, 7 De G., M. & G. 104; Band t;. Tardell, id. 628; Stewart v. San- 
 derson, L. R. 10 Eq. 26. 
 
 8 Bate V. Hooper, 5 De G., M. & G. 358; and see Turquand r. Mar- 
 shall, L. R. 6 Eq. 112; Hood v. Clapham, 19 Beav. 90. 
 
 4 Nyce's App., 5 Watts & S. 254. 
 
 5 Lockhart v. Reilly. 39 Eng. L. & Eq. 135. 
 « Phillipson v. Gatty, 7 Hare, 516. 
 
 7 Bromley v. Kelly, 39 L. J. Ch. 274. « Ibid. 
 
 fraud is also accountable. Warren 443 ; Stokes v. Terrell (Miss.), 23 
 
 V. Union Bank, 157 N. Y. 259 ; So. 371 ; Moody & M. Co. v. Trus- 
 
 Friesenhahn v. Bushnell, 47 Minn, tees, 99 Wis. 49. 
 666
 
 CIIAr. XV.] IXTEREST. [§ 4G8. 
 
 § 4G8. It is diflficnlt to lay down any general rule that is 
 equitable and applicable to all cases, as to the interest that 
 trustees shall pay upon trust funds in their hands. In Eng- 
 land, (a) if trustees suiTer money to remain in their own 
 hands, or in the hands of third persons, or in bank for an 
 unreasonable time, in addition to their liability for its loss 
 during such delay, they will be charged with interest at the 
 rate of four per cent ; but if the trustees are grossly negli- 
 gent or corrupt, or improperly call in the money from a 
 proper investment, and suffer it to lie idle, or if they use it 
 in trade or speculation, or invest it in improper places, the 
 court will charge them with interest at the rate of five per 
 cent; and, in certain special cases of misconduct, the court 
 will order annual or semi-annual rests, for the purpose of 
 charging them with compound interest. In the United 
 States there is no law by which different rates of interest 
 can be applied to different degrees of negligence or miscon- 
 duct; and the only question here is, whether simple or com- 
 pound interest shall be imposed. The general rules, so far 
 as they can be drawn from all the cases, are as follows : (1) 
 If a trustee retains balances in his hands which he ought to 
 have invested, or delays for an unreasonable time to invest, 
 or if he mingles the money with his own, or uses it in his 
 private business,* or deposits it in bank in his own name, 
 or in the name of the firm of which he was a member, or 
 neglects to settle his account for a long time, or to distribute 
 or pay over the money when he ought to do so,^ he will be 
 liable to pay simple interest at the rate established by law as 
 the legal rate in the absence of special agreements." This 
 
 1 Cool V. Jackman, 13 Brad. (111.) 560 ; Lehmann v. Rothbarth, 111 111. 
 185 ; Society v. Pelham, 58 N. H. 566 ; the trustee must pay interest from 
 the time of diverting the fund. 
 
 2 Judd V. Dike, 30 Minn. 385 ; Pickering r. De Rochemont, 60 N. II. 
 179 ; Lyons v. Chamberlin, 25 Ilun, 49. 
 
 8 Burdick r. Garrick, L. II. 5 Ch. 241 ; Blogg v. Johnson, L. R. 2 Ch. 
 225 ; Berwick v. Murray, 7 De G., M, & G. 843 ; Treves v. Townshend, 1 
 
 (a) See Collins v. Wade, [1896] 1 Ir. R. 340 ; 1 Ames on Trusts (2d 
 ed.), 408,u. 
 
 667
 
 § 468.] INTEREST. [chap. XV. 
 
 rule is subject to tlie qualification that trustees cannot make 
 any advantage to themselves out of the trust fund; and if 
 they make more than legal interest, they shall pay more, as, 
 if they make usurious loans, they shall be charged with all 
 
 Bro. Ch. 384; Forbes v. Ross, 2 Bro. Ch. 430; Piety v. Stace, 4 Ves. 620; 
 Ashburnham v. Thompson, 13 Ves. 402 ; Bates v. Scales, 12 Ves. 402 ; 
 Pocock V. Reddington, 5 Ves. 794; Sutton v. Sharp, 1 Russ. 146 ; Crackelt 
 V. Bethune, IJ. & W. 122 ; Att. Gen. v. Solly, 2 Sim. 515 ; Heathcote v. 
 Hulme, 1 J. & W. 122 ; Brown v. Sansome, 1 McC. & Y. 327 ; Westover 
 V. Chapman, 1 Coll. 177 ; Robinson r. Robinson, 1 De G., M. & G. 247 ; 
 Jones V. Foxall, 15 Beav. 392; Saltmarsh v. Barrett, 21 Beav. 349; Knott 
 V. Cottee, 16 Beav. 77; Rocke v. Hart, 11 Ves. 58; Lincoln v. Allen, 4 
 Bro. P. C. 553 ; Younge r. Combe, 4 Ves. 101 ; Dawson v. Massey, 1 Ball 
 
 6 B. 231 ; Hicks v. Hicks, 3 Atk. 274 ; Perkins v. Boynton, 1 Bro. Ch. 
 375 ; King v. Talbott, 40 N. Y. 86 ; Nelson v. Hagerstown Bank, 27 Md. 
 53; Cook v. Addison, L. R. 5 Ch. 466 ; Duffy v. Duncan, 35 N. Y. 187 ; 
 Young V. Brush, 38 Barb. 294; Owen v. Peebles, 42 Ala. 338; Wistar's 
 App., 54 Pa. St. 60 ; Newton v. Bennett, 1 Bro. Ch. 359 ; Littlehales v. 
 Gascoigne, 3 Bro. Ch. 73; Franklin v. Firth, id. 433; Longmorer. Broom, 
 
 7 Ves. 124 ; Trimleston v. Hammil, 1 Ball & B. 385; Tebbs v. Carpenter, 
 
 1 Madd. 290; Mousley v. Carr, 4 Beav. 49; Hoskins v. Nichols, 1 N. C. 
 C. 478 ; Beverleys v. Miller, 6 Muuf . 99 ; Diffenderffer v. Winder, 3 G. & 
 J. 341; Mumford v. Murray, 6 Johns. Ch. 1 ; Jacot v. Enimett, 11 Paige, 
 142 ; Kellett v. Rathbun, 4 Paige, 102 ; De Peyster v. Clarkson, 2 Wend. 
 77 ; Garniss v. Gardner, 1 Edw. Ch. 128 ; Spear v. Tinkhara, 2 Barb. Ch. 
 211 ; Manning v. Manning, 1 Johns. Ch. 527 ; Brown v. Rickett, 4 id. 
 303; Williamson v. Williamson, 6 Paige, 298; Dunscomb v. Dunscomb, 1 
 Johns. Ch. 508 ; Minuse v. Cox, 5 Johns. Ch. 448 ; Cogswell v. Cogswell, 
 
 2 Edw. Ch. 231 ; Gray v. Thompson, 1 Johns. Ch. 82; Armstrong v. Mil- 
 ler, 6 Ohio, 118; Astor's Est., 5 Whar. 228; Merrick's Est., 2 Ash. 285; 
 Worrall's App., 23 Penn. St. 44; Graves's App., 50 id. 189 ; Hess's Est., 
 69 id. 454; Peyton v. Smith, 2 Dev. & B. Eq. 325 ; Jameson v. Shelly, 2 
 Humph. 198 ; Dyott's Est., 2 Watts & S. 655 ; In re Thorp, Davies, 290 ; 
 Carr v. Laird, 27 Miss. 544; Lomax v. Pendleton, 3 Call, 538; Handy v. 
 Snodgrass, 9 Leigh, 484; Dillard v. Tomlinson, 1 Munf. 183; Carter v. 
 Cutting, 5 Munf. 223 ; Wood v. Garnett, 6 Leigh, 271 ; Miller v. Beverleys, 
 4 Hem. & M. 415; Chase v. Lockerman, 11 G. & J. 185; Ringgold v. 
 Ringgold, 1 H. & G. 11 ; Arthur v. Marster, 1 Harp. Eq. 47 ; Rowland v. 
 Best, 2 McCord, Ch. 317 ; Lyles v. Hattan, 6 G. k J. 122 ; Griswold v. 
 Chandler, 5 N. H. 497 ; Lund r. Lund, 41 N. H. 355 ; Turney v. Williams, 
 7 Yerg. 172 ; Williams v. Powell, 16 Jur. 393 ; Dornford v. Dorntord, 12 
 Ves. 127 ; Wright v. Wright, 2 McCord, Ch. 185 ; Knowlton v. Bradly, 17 
 N. H. 458 ; McKim v. Hibbard, 142 Mass. 422. 
 
 668
 
 CHAP. XV.] INTEREST. [§ 468. 
 
 their gains from the use of the money.* If the trustee cannot 
 show what aniount of interest he has received, lie shall be 
 charged with legal interest from the time when the regular 
 investment ought to have been made.''' There may be an 
 exception to the rule, that a deposit of the trust-money in. 
 bank in the name of the trustee, or a mixing of the trust 
 fund with his own, will impose a liability of legal interest. 
 There must be some element of a breach of trust in the trans- 
 action, or a breach of duty. ^ (a) If therefore the sums are 
 small, and the trustee receives no credit or profit from the 
 act, or if the act was accidental, or beneficial to the cestui 
 que trusty legal interest will not be imposed ujion the trustee ;* 
 or if the trustee was a member of a firm of bankers, and he 
 deposited with the firm in his name as trustee, he will not 
 be charged with interest, although the firm made a profit 
 from the deposit.^ The proper mode of taking the account of 
 
 ^ Barney v . Saunders, IG IIow. 543 ; Oswald's App., 3 Grant, 300 ; 
 Martin v. Ray born, 42 Ala. 408. 
 
 2 Bentley v. Shreve, 2 Md. Ch. 219 ; Rapalje v. Hall, 1 Sandf. Ch. 
 339. 
 
 8 McKnight v. Walsh, 23 N. J. Eq. 136 ; 24 N. J. Eq. 492. 
 
 * Rapalje r. Hall, 1 Sandf. Ch. 399; Graves's App., 50 Penn. St. 189 ; 
 Bond V. Abbott, 42 Ala. 499. 
 
 6 Hess's Est., 69 Penn. St. 454. 
 
 (a) See Dorris v. Miller, 105 cases. See Bartol's Estate, 182 
 
 Iowa, 564 ; Re Myers, 131 N. Y. Penn. 407 ; Dick's Estate, 183 id. 
 
 409 ; Clark's Estate, 39 N. Y. S. 647 ; Rioketts v. Ricketts, 04 L. T. 
 
 722; In re Muller, 52 id. 565 ; West- 263 ; English v. Mclntyre, 51 N. Y. 
 
 over V. Carman, 49 Neb. 397; Fant S. 697 ; Carver's Estate, 118 Cal. 
 
 V. Dunbar, 71 Miss. 576 ; Truett 73 ; Rush v. Steele, 93 Va. 526 ; 1 
 
 V. Williams, 101 Ga. 311 ; Danforth's Ames on Trusts (2d ed.),494, 496, n. 
 
 Estate, 66 Mo. App. 586; Howard A southern guardian, who invested 
 
 t'. Manning (Ark.), 44 S. W. 1126; his ward's money in confederate 
 
 1 Ames on Trusts (2d ed.), 482, bonds during the War of the Rebel- 
 
 484, 496, n. There should doubt- lion, was held not liable therefor, in 
 
 less be a distinction between losses Baldy v. Hunter, 171 U. S. 388 ; 
 
 by misconduct and those by mere 98 Ga. 170 ; see Franklin v. ]McEl- 
 
 neglect or lack of attention or of roy, 99 Ga. 123; Finch v. Finch, 
 
 good judgment, but the distinction 28 S. C. 164. 
 is not clearly followed out in the 
 
 669
 
 § 468.] INTEREST. [CIIAP. XV. 
 
 trustees is to treat all the income of the trust received 
 during the current year as unproductive, and to charge against 
 the income of the current year all the disbursements, includ- 
 ing the compensation or commissions of the trustees for the 
 same year, and to strike a balance, upon which, as a general 
 rule, interest is to be allowed,^ but in such a way as not to 
 compound it.^ If, however, these balances are too small to 
 invest, or for any reason the trustees might equitably keep 
 them on hand, interest will not be allowed upon them until 
 the balances so accumulate as to be properly invested, or 
 until the trustees ought to invest them.^ Of course, as soon 
 as a trustee properly pays the fund into court, his liability 
 for interest ceases.^ But so long as any litigation is pending 
 over the fund, and the money is not brought into court, the 
 trustee is bound to keep it invested, and he is liable for 
 legal interest.^ But a guardian is not liable to interest while 
 the settlement of his account is pending.^ 
 
 1 Boynton r. Dyer, 18 Pick. 1 ; Pettus v. Clawson, 4 Rich. Eq. 92 ; 
 Jones V. Morrall, 2 Sim. (n. s.) 241; Clarkson v. De Peyster, 2 Wend. 78; 
 Vanderheyden v. Vanderheyden, 2 Paige, 288 ; Luken's App., 47 Pa. St. 
 356 ; Reynolds v. Waker, 29 Miss. 250 ; Roach v. Jelks, 40 Miss. 754 ; 
 Crump V. Gerack, id. 765. 
 
 2 Rowland v. Best, 2 McCord, Ch. 317 ; Jordon v. Hunt, 2 Hill, Eq. 
 145; Walker v. Bynum, 4 Des. 555 ; Powell v. Powell, 10 Ala. 900 ; Shep- 
 hard y. Stark, 3 Munf. 29 ; Burwell v. Anderson, 3 Leigh, 348; Garrett 
 V. Carr, 3 id. 407 ; Campbell v. Williams, 3 Mon. 122 ; Jones v. Ward, 
 10 Yerg. 160. See Eliott v. Sparrell, 114 Mass. 404. 
 
 3 Rapalje v. Hall, 1 Sandf. Ch. 399; Woods v. Garnett, 6 Leigh, 271 ; 
 Graves's App., 50 Penn St. 189; Luken's App., 47 id. 356. Trustee is 
 generally chargeable with interest to be computed from the first day of 
 January following his receipt of the funds. Livingston v. Wells, 8 S. C. 
 347. 
 
 4 January v. Poyntz, 2 B. Mon. 404 ; Yundt's App., 13 Penn. St. 575 ; 
 Lane's App., 24 id. 487; Younge v. Brush, 38 Barb. 294; Brandon v. 
 Hoggatt, 32 Miss. 335. 
 
 6 Ibid. 
 
 * Yader's App., 45 Penn. St. 394. But a trustee who retained funds 
 in his hands, making a claim to them as his compensation, which he 
 failed to establish, was charged with interest from the time he ought to 
 have paid them. Jenkins v. Doolittle, 69 111. 415. 
 670
 
 CHAP. XV.] INTEREST. [§ 470. 
 
 § 469. (2) If a trustee is directed and bound to invest in 
 a particular stock or fund within a certain time, or within a 
 reasonable time, and he neglects to make the investment as 
 directed, the cestui que trust has his election to take the 
 money and legal interest thereon, or so much stock as the 
 money would have purchased at the time when the invest- 
 ment ought to have been made, and the dividends thereon.' 
 It has been held in some cases, that if trustees were directed 
 to invest in stocks, or in real estate, and they neglected to do 
 either, the cestui que trust might have the amount of stocks 
 that could have been purchased, and the dividends thereon. ^ 
 On the other hand, it has been held, and is now established 
 in such case, that, as the trustees might have invested in 
 real securities, and such real securities might have been of 
 less value than the original fund, the cestui que trust can 
 have only the money and legal interest thereon, and cannot 
 claim the amount of stocks that might have been purchased. ^ 
 If trustees are directed to invest a certain fund separately, 
 they will be liable for losses occurring by reason of neglect- 
 ing this provision.* In Wisconsin, it has been held that if 
 a trustee is directed to invest in United States bonds or in 
 real estate security, the interest which he might have ob- 
 tained upon proper real estate security is the measure of his 
 liability for failure to invest the fund.^ 
 
 § 470. (3) If the trust fund was properly invested, accord- 
 ing to the direction of the trust instrument, or according to 
 
 1 Shepherd r. Mauls, 4 Hare, 504; Robinson v. Robinson, 1 De G., 
 M. & G. 25G ; Byrchall v. Bradford, G MadJ. 235 ; Vyse r. Foster, S Ch. 
 334 ; Ihmsen's App., 43 Penn. St. 471 ; Blauvelt v. Ackerman, 20 N. J. 
 Eq. 141; Darling v. Hammer, id. 220; McElhenny's App., 46 Penn. St. 
 347. 
 
 ^ Hockley v. Bantock, 1 Russ. 141 ; Watts r. Girdlestone, 6 Beav. 188 ; 
 Ames V. Parkinson, 7 Beav. 379; Ouseley v. Anstnither, 10 Beav. 456. 
 
 » Marsh r. Hunter, 6 Madd. 295 ; Shepherd r. IMauls, 4 Hare, 500 ; 
 Robinson v. Robinson, 1 De G., M. & G. 256; Phillipson v. Gatty, 7 
 Hare, 516; Rees v. Williams, 1 De G. & Sm. 314. 
 
 * Wilmerding v. McKesson, 103 N. Y. 329. 
 
 6 Andrew c. Schmitt, 64 Wis. 664. 
 
 671
 
 § 471.] COMPOUND INTEREST. [CHAP. XV. 
 
 law and the trustee improperly converts the fund into 
 money and neglects to invest it, or invests it improperly, 
 or uses it in trade, business, or speculation, the cestui que 
 trust may, at his election, take the dividends or interest 
 which the fund would have produced if the investment had 
 been suffered to remain where it was properly made ; or he 
 may take legal interest on the fund ; or he may take all the 
 profits that have been made upon the fund.^ If the cestui 
 que trust elects to take the profits, he must take them during 
 the whole period, subject to all the losses of the business : he 
 cannot take profits for one period and interest for another.^ 
 
 § 471. (4) If the trustee improperly changes an invest- 
 ment, and refuses to reinvest the money in a legal manner; 
 or if he refuses to invest the fund in the first instance; or if 
 he uses the fund in trade, business, or speculation; or makes 
 an improper or illegal investment, — the cestui que trust may 
 have the income that would have accrued from the proper in- 
 vestment ; or he may have simple interest at the legal rate ; ^ 
 or he may take all the profits of the trade or business, or 
 other investment or employment of the money, and if the 
 trustee refuse to account for the profits arising from his use 
 of the money, or if he has so mingled the money and the 
 profits with his own money and profits that he cannot sepa- 
 rate and account for the profits that belong to the cestui que 
 trust, the cestui que trust may have legal interest computed 
 with annual rests, in order to compound it.* (a) And some- 
 
 1 Jones V. Foxall, 15 Beav. 392; Robinett's App., 36 Penn. St. 174; 
 Saltmarsh v. Barrett, 31 Beav. 349 ; Kyle r Barnett, 17 Ala. 306 ; Barney 
 V. Saunders, 16 How. 543 ; Brown v. De Tastet, Jac. 284 ; Cook v. Collin- 
 gridge, id. 607 ; Crawshay v. Collins, 15 Ves. 218 ; 2 Buss. 325 ; Feather- 
 stonhaugh v. Fenwick, 17 Ves. 298 ; Docker v. Somes, 2 Myl. & K. 655 ; 
 Wedderburn v. Wedderburn, 2 Keen, 722 ; 4 Myl. & Cr. 41 ; Norris's 
 App., 71 Penn. St. 125. 
 
 2 Heathcote v. Hulme, IJ. & W. 122. 
 
 8 Cogbill V. Boyd, 79 Va. 1, and cases in next note; Seguin's App., 
 103 Penn. St. 139. 
 
 * Jones u. Foxall, 15 Beav. 392; Raphael v. Boehm, 11 Ves. 92; 13 
 
 (a) See Forbes v. Allen, 166 351 ; Davis ?;. Eastman, 68 Vt. 225; 
 Mass. 569 ; White v. Ditson, 140 id. Lehman v. Rothbarth, 159 111. 270; 
 672
 
 CHAP. XV.] COMPOUND INTEREST. [§ 471. 
 
 times even biennial rests will be allowed in computing the 
 compound interest where the trustee has used the fund in 
 his own business.* There has been considerable conflict of 
 opinion and authority upon the matter of compounding inter- 
 est against a trustee. Lord Cranworth said, that a trustee 
 might as well be charged with more principal than he had 
 received as to be charged with more interest. ^ In another 
 case, it was said in England that a trustee would be charged 
 with more than four per cent interest:^ (1) when he ouyld to 
 have received more; (2) when he did receive more; (3) 
 when he is presumed to receive more ; and (4) when he is 
 estopped to say he did not receive more.* (a) Compound 
 interest was allowed in one case where the trustee held the 
 fund after the minor cestui came of age without making any 
 arrangement with the child or explaining to him his rights.^ 
 The burden is on the trustee to show that he made no profits, 
 or received no benefit from the money ;^ and if he refuses to 
 
 Ves. 407 ; 1 Madd. 1G7 ; Saltmarsh v. Barrett, 31 Beav. 349 ; Walker r. 
 Woodward, 1 Russ. 107 ; Heighington v. Grant, 5 Myl. & Cr. 258 ; 2 Phill. 
 600; Williams r. Powell, 15 Beav. 461 ; Walrond r. Walrond, 29 Beav. 
 586 ; Stackpole c. Stackpole, 4 Dow. P. C. 209 ; Eliott v. Sparrell, 114 
 Mass. 404 ; State v. Howarth, 48 Coun. 207 ; Hook v. Lowry, 95 IST. Y. 
 103. 
 
 1 Page's Ex'r v. Holeman, 82 Ky. 573. 
 
 2 Att. Gen. v. Alford, 4 De G., M. & G. 851. 
 8 Penney J'. Avison, 3 Jur. (x. s.) 62. 
 
 4 Att. Gen. r. Alford, 4 De G., M. & G. 851 ; Norris's App., 71 Penn. 
 St. 106. 
 
 6 Emmet v. Emmet, 17 Ch. D. 142. 
 
 6 Knott V. Cottee, 16 Beav. 77 ; 16 Jur. 752 ; Swindall v. Swindall, 
 8 Ired. Eq. 286; Ringgold r. Ringgold, 1 H. & G. 11 ; Diffenderffer r. 
 Winder, 3 G. & J. 311; Schieffeliu u. Stewart, 1 Johns. Ch. 620 ; Bryant 
 V. Craige, 12 Ala. 354 ; Hodge v. Hawkins, 1 Dev. & B. Eq. 566 ; Hugh 
 V. Smith, 2 Dana, 253 ; Karr v. Karr, 6 Dana, 3; Smith v. Kennard, 38 
 Ala. 695; McEIhenny's Ap., 61 Penn. St. 188. Annual rests were allowed 
 
 White V. Sherman, 168 111. 589 ; Ricker (14 Mont. 153), 29 L. R. A. 
 
 Hughes V. People, 111 111. 457; 622, and note. 
 
 Kane v. Kane (Mo.), 48 S. W. 446 ; (a) See Forbes v. Ware, 172 Mass. 
 
 1 Ames on Trusts (2d ed.), 498, n. ; 306. 
 
 In re Eschrich, 85 Cal. 98 ; Re 
 
 VOL. I. — 43 673
 
 § 471.] COMPOUND INTEREST. [CIIAP. XV. 
 
 account or to show the amount of profits received, the court 
 will give compound interest, in order that it may be certain 
 that the cestui que trust gets the profits of the trade or busi- 
 ness in which the trustee has employed the money. ^ To 
 justify the compounding of interest, there must be a wilful 
 breach of duty,^ and not simple neglect; there must be some 
 special and peculiar circumstances.^ Compound interest will 
 not be given against negligent trustees where the facts do not 
 indicate a withdrawal of the funds from their legitimate 
 channels of accumulation, or a realization by the trustees of 
 profits on the assets.^ If the money is simply used in busi- 
 ness, and it appears that the profits were not equal to the 
 interest, annual rests will not be made.^ It appears now to 
 be the settled doctrine, that compound interest will not be 
 given as a penalty for a breach of trust, nor will it be given 
 for an employment of the money in the course of trade, if 
 the profits made in the trade can be clearly ascertained, and 
 
 in Harland's Acct., 5 Rawle, 329; Livingston v. Wells, 8 S. C. 347; the 
 question was left open in Dietterich t?. Heft, 3 Penn. St. 91 ; McCall's Est., 
 1 Ash. 357; Pennypacker's App., 41 Penn. St. 44, and rests were wholly 
 rejected in Graves's App., 50 Penn. St. 189. 
 
 1 Knott V. Cottee, IG Beav. 77; 16 Jur. 752; Swindall v. Swindall, 
 8 Ired. Eq. 286; Ringgold v. Ringgold, 1 H. & G. 11 ; Diffenderffer v. 
 Winder, 3 G. & J. 311 ; Schieffelin v. Stewart, 1 Johns. Ch. 620; Bryant 
 V. Craige, 12 Ala. 354 ; Hodge v. Hawkins, 1 Dev. & B. Eq. 566 ; Hugh 
 V. Smith, 2 Dana, 253; Karr v. Karr, 6 Dana, 3; Smith v. Kennard, 38 
 Ala. 695 ; McElhenny's App., 61 Penn. St. 188. Annual rests were allowed 
 in Harland's Acct., 5 Rawle, 329; Livingston v. Wells, 8 S. C. 347; the 
 question was left open, Dietterich v. Heft, 3 Barr, 91; McCall's Est., 
 1 Ash. 357 ; Pennypacker's App., 41 Penn. St. 44, and rests were wholly 
 rejected in Graves's App., 50 Penn. St. 189. 
 
 2 Hughes V. People, 111 111. 457; Wilmerding v. McKesson, 103 N. Y. 
 329. 
 
 8 Garniss v. Gardner, 1 Edw. Ch. 128 ; Ackerman v. Emott, 4 Barb. 
 626 ; Tebbs v. Carpenter, 1 Madd. 290; Fay v. Howe, 1 Pick. 528, and n. ; 
 Clemens v. Caldwell, 7 B. Mon. 171 ; Fall v. Simmons, 6 Ga. 272 ; Kennan 
 V. Hall, 8 Ga. 417; Cartledge v. Cutlifi, 21 Ga. 1. 
 
 4 Ames ». Scudder, 83 Mo. 189. 
 
 6 Utica Ins. Co. v. Lynch, 11 Paige, 521 ; Kyle v. Barnett, 17 Ala. 306 ; 
 Ringgold V. Ringgold, 1 H. & G. 11 ; Myers v. Myers, 2 McCord, Ch. 214; 
 Wright V. Wright, id. 185; Johnson t;. Miller, 33 Miss. 553. 
 674
 
 CHAP. XV.] COMPOUND INTEREST. [§ 472. 
 
 arc less than legal interest, or less than five per cent; but if 
 nothing apjjcars as to the i)rorits, the courts will presume 
 that the ordinary profits of trade are made, or five per cent 
 in England and the legal interest in the United States. And 
 if the interest or profits of the fund arc retained in the trade, 
 instead of being paid out, it will be presumed that the trus- 
 tees made a similar rate of interest or profit upon the sum 
 retained in trade, and therefore annual rests will be made, 
 and compound interest given ; not as punishment or penalty, 
 but because the fund and the income employed in trade are 
 presumed to produce that amount of income, interest, or 
 profit.^ The trustee must seek out the cestui que trust to pay 
 the income to him, or he must pay interest upon it. So, 
 where a trustee receives property and sells it, he must ac- 
 count for the proceeds. And if he refuses, he will be charged 
 with the highest value that can be sustained by the evidence. ^ 
 But a mere payment into bank to the general account of the 
 trustee is not such an employment of the money as to justify 
 compound interest. ^ A trustee is accountable for all interest 
 and profits actually received by him from the trust fund, and 
 for all which he miyht have obtained hy due diligence and 
 reasonable slcill.^ 
 
 § 472. If a trustee is directed to make a certain invest- 
 ment, and to accumulate the income, and he neglects or re- 
 fuses so to do, the cestui que trust is entitled to compound 
 interest, upon all the authorities, (a) If, by the instrument 
 
 1 Jones V. Foxall, 15 Beav. 388 ; Burdick v. Garrick, L. R. 5 Ch. 233. 
 See the matter of compound interest elaborately discussed by Mr. Justice 
 Scarburgh in Ker v. Snead, 11 Law Rep. 217, Boston, Sept. 1848; and 
 Wright V. Wright, 2 IMcCord, Eq. 200-204 ; McKnight v. Walsh, 23 N. J. 
 Eq. 13G ; 24 id. 498 ; Lothrop v. Smalley, 23 id. 192. 
 
 2 McKnight v. Walsh, 23 N. J. Eq. 136 ; Burdick v. Garrick, L H. 
 5 Ch. 233. 
 
 8 Norton's Estate, 7 Phila. 484. 
 * Cruce V. Cruce, 81 Mo. 076. 
 
 (a) See Rogers' Estate, 179 Penn. 8; Burt v. Gill (Md.), 42 Atl. 968; 
 St. 609; Iloweirs Estate, 180 id. Fritts' Estate, 44 N. Y. S. 344. A 
 515; Milligan v. Pleasants, 74 Md. direction to accumulate must not 
 
 675
 
 § 472.] COMPOUND INTEKEST. [CHAP. XV. 
 
 of trust, interest is to be added to principal semi-annually, 
 semi-annual rests will be made ; otherwise annual rests will 
 be made,^ or an inquiry will be directed to ascertain what 
 would have been the amount of the accumulation if the direc- 
 tions had been followed, in order to charge the trustee with 
 the amount. 2 And where a trustee was ordered by the court 
 to invest a sum in controversy, and he neglected to do so, he 
 was ordered to bring the whole sum into court with compound 
 interest. 3 Interest may be allowed against a trustee, although 
 the bill does not pray for it.* If a trustee improperly with- 
 holds money as a commission, he may be made to pay com- 
 pound interest on it.^ 
 
 1 Raphael?). Boehm, 11 Ves. 92; 13 Ves. 407, 590; Dornford v. Dora- 
 ford, 12 Ves. 127; Knott v. Cottee, 16 Beav. 77; Pride v. Fooks, 2 Beav. 
 430 ; Byrne v. Norcott, 13 Beav. 336 ; Stackpole v. Stackpole, 4 Dow. P. C. 
 209; Brown v. Southhouse, 3 Bro. Ch. 107; Karr v. Karr, 6 Dana, 3; 
 Bowles V. Drayton, 1 Des. 489; Hodge v. Hawkins, 1 Dev. & Bat. 564; 
 Wilson V. Peake, 3 Jur. (n. s.) 155 ; Brown v. Sansome, 1 McCle. & Yo. 
 427; Lesley v. Lesley, 1 Dev. 117; Fitham v. Turner, 23 L. T. (n. s.) 
 345 ; Court v. Robarts, 6 CI. & Fin. 64 ; Townsend v. Townsend, 1 Gif. 
 201 
 
 2 Brown v. Sansome, 1 McCle. & Yo. 427. 
 
 8 Latimer v. Hansom, 1 Bland, 51 ; Winder v. DiffenderfEer, 2 Bland, 
 166 ; McKuightw. Walsh, 23 N. J. Eq. 136; 24 id. 498; Lathropu. SmaUey, 
 23 id. 192. 
 
 4 Bloggu. Johnson, L. R. 2 Ch. 225. 
 
 5 McKnight V. Walsh, 23 N. J. Eq. 136. 
 
 contravene the rule against per- 111. 432 ; Duggan v. Slocum, 83 
 
 petuities. See Hascall v. King, 51 F. R. 244 ; Re Errington, 76 L. T. 
 
 N. Y. S. 73 ; In re Rogers, 48 id. 616. 
 175; Ingraham r. Ingraham, 169 
 
 676

 
 JC<:0!iTHFR';Rrci':',;.: 
 
 AA 000 851 277 4