:^ 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