UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY UNDEEHILL'S LAW OF TKUSTS. BUTTERWOETH'S STANDARD LAW BOOK SERIES. No. 1. — Chaster's Law Relating to Public Officers llaviii- Evi'c'utiv.' Authority, liy A. W. Chasikh. l.L.li. (Ldini.), B;urist.'r- :i;-l.a\\. lioval S\o. '."X) jKiV'es. Piici- 37n. Oi/. ; for cash, post l're>', 30s. "'/. 1900 No. 2.— Hamilton's Company Law. Tliird Edition. Ry W. F. IIamiliox, K.C, LL.D. (Lend.). Royal Svo. TOO lakies. I'ricf \lls. ; for casli, post free, 17s. 7(1. 1910 No. 3. — Grant's Bankers and Banking Companies, Includiii'; Notps and Cases decided in tlie Canadian Conrts, and an Appendix contJiininj; the most important English and Canadian .Statutes in force relatin:^ thereto. Sixth edition. By A. M. Langdox, K.C, M.A., B.C.L.,and IIkkukkt •JAcoas, B.A., Banister-at-Law ; as.sisted by A. C. Forster Roui.tox, Ban ister- at-Law. With a Chapter on (ioods and Documents of Title to Goods, by David C. Lkck, Barrister-at-Law ; and Canailian Xotes, by A. C. Furstek Rdcltox, of the Canadian Bar. Royal Svo. Pages 105 + 915+.5'2. Price 35s. ; for cash, iJOsPfree, 2S,<. ~d. 1910 No. 4.— Fisher's Law of Mortgage. Tlie Law of .Mortj;age and otliei- .Securities >ipon Property. By W. R. Fisher, of Lincoln's Inn, Barrister-at-La\v. Sixth Edition by Arthur Underhili., M.A., LL.D., of Lincoln'.s Inn, one of the Conveyancing Counsel of the Court. Royal Svo. Pages 188 + 1028 + 1()2. In two editions, on thick or thin paper. Price J2s. C.?. ; for cash, post free, 42s. ;>-ni]ile, liaiTister-at- Law; an Editor" of " Lnndey's Public Health." Royal svo. 1(12 + 1260 + 90. Price 42s. ; for cash, post tree, 37s. 7(1. 1911 No. 9. — Bower on Actionable Misrepresentation. Th>- Law of Actionable Misrejiresentalion stated in tli,' l-'urni of a ( followed by a ConimentJiry and Appendices. By G. .Si'knikr Bowkr, Price 25». ; for cash, post free, 20s. 6d. No. 10.— Underbill's Trusts and Trustees. BUTTERWORTH & CO., Bell Yard, Temple Bar. THE LAW RELATING TRUSTS AND TRUSTEES. ARTHUR UNDERHILL, M.A., LL.D., ONE OF THR CONVEY.* XCIXO COUNSEL TO THE OOUKT ; Soiiwtime Header of the Lair of Property to tlw. Council of Leijnl EdiuvUion. ; Author of "2'he Law of Partnership," '^ A Summary of the Lav; of Torts," etc.. Joint Author of " Unilerhill and Strtthan's Principles of the Interpretation of Wills and Settlemi'nt.^," and General Editor of "The Enn/dopfedia of Forms and Precedi'nts," etc. SEVENTH EDITION IRevtseD anb Bnlaroet). LONDON : BUTTERWOPtTH & CO., Bell Yard, Temple Bar. Xaw ipublisbere. Sydney : BuTTERWORTH & Co. (Australia), Ltd., 76, Elizabeth Street. Calcutta : BuTTEKWORTH & Co. (India). Llil., 8/2, Hastings Street. 1912. \ CX\1 BRADBrRY, AONKW, & CO. LD. , I'ltlNTKUS LONPOS ANIi TOIJBKIDOF. -1 I TO THE RIGHT HONOURABLE HARDINGE STANLEY EARL OF HALSBURY, P.C. SOMETIME LORD HIGH CHANCELLOR OF GREAT BRITAIN Ibis Wiovk IS BY HIS LORDSHIP'S PERMISSION :M0ST RESPECTFULLY DEDICATED PREFACE. IN writing this treatise, it has been the author's desire to produce a book bearing the same relation to Mr. Lewin's elaborate work as Lord Justice Faewell's treatise on Powers bears to that of the late Lord St. Leonards; that is to say, a book of a really practical, but concise, character. The law libraries are rich in great works of reference, the store-houses, so to speak, of the Law ; but they are, too often, merely collections of " that codeless myriad, that wilderness of single instances," from which it requires many years of study and experience to extract general principles. That this is so w^as vigorously expressed by the late Sir James Fitzjames Stephen in the preface to his Digest of the Law of Evidence, where he said : " It becomes obvious, that if a lawyer is to have anything better than a familiarity with indexes, he must gain his knowledge in some other way than from existing books on the subject. No doubt such knowledge is to be gained. Experience gives by degrees, in favourable cases, a comprehensive acquaintance with the principles of the law with which a practitioner is conversant. He gets to see that it is shorter and simpler than it looks, and to understand that the innumerable cases, which at first sight appear to constitute the law, are reallij no more than illustrations of a comparativehj small number of prineiples." That great lawyer, the late Sir Geokge Jessel, also pointed out that " the only use of authorities or decided viii Preface. cases is the establishment of some principle which the judge can follow out in deciding the case before him " (a). In this Work the author has endeavoured to follow- out the thought expressed by these great lawyers by extracting and formulating the principles of the law of Private Trusts in the form of a Code. By way of illustration all the important modern decisions, and such of the more ancient ones as are retained in the Revised Reports, are cited ; so that the reader is enabled to see, at a glance, what the author conceives to be the law {i.e., the principle) governing any particular point ; he is then further presented with a series of decided cases which prove, illustrate, and explain the application of that principle ; and further, in the foot- notes, he is referred to other authorities if he desires to make an exhaustive search. For the examples, modern cases have been chosen in preference to ancient ones, because, as has been truly said, " the rules of Courts of Equity are not, like the rules of the Common Law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time — altered, improved and refined from time to time. The doctrines are progressive, refined, and improved ; and if icc irant to know wliat the rules of Efjnitij ((re, ICC must look rather to the more vioclcrn than the more ancient cases " (h). For reasons above stated, it is hoped (and perhaps in this Preface to the Seventh Edition it may be l)ermissible to say, believed) that this Work has proved of some use to practitioners. Like most law books this one has grown larger in (a) 13 Ch. D. 712. (h) Per Sir Georgk Jessel, M.K., iu lie Eallett, Knatchbull v. llnlU'U, 13 Ch. D., at p. 710. Preface. ix each successive edition. Up to and including the last edition the author attempted to make it a book fitted not only for the requirements of the practitioner bat also for those of the student. He has, however, nov^ come to "the parting of the v^ays," and having to choose one path or the other, has elected to devote it to the practitioner. If, however, there should be any demand by students for an abridgment, the author, (while unable to undertake such a work himself), has consented to an abridgment being written by some other qualified person. Since the last edition was published an attempt has been made to codify the law of trusts, the Bill being admittedly founded to a large extent on this work. The author cannot help thinking that the gentlemen responsible for this Bill would have done better to devote their superfluous energy to the amendment of the law of trusts, rather than to crystallising into hard statute law the existing decisions with all their imperfections, anomalies, and absurdities left intact. As matters stand, the elastic nature of Equity (as above pointed out by Sir G. Jessel, M.R.) enables modern judges to "refine and improve," i.e., to brush aside the more monstrous decisions of the past, by making astute distinctions which would be impossible were they bound by a Statutory Code. The law of trusts is anomalous in this, that it imposes upon a gratuitous agent (who in practice is very often quite unable to refuse the office) a degree of care and a responsibility for the acts and defaults of himself and others, which no other gratuitous agent is called upon to bear. Founded originally on conscience, by the Clerical Chancellors, it is even now unduly severe upon the natural failings of ordinary men. The law is, however, still undergoing a process of evolution. X Preface. and trustees are no longer dealt with in the merciless fashion of a century ago. But much still remains to be done. For instance, how can the rule be defended, which gives beneficiaries the right of making a protit out of a breach of trust committed by a perfectly honest trustee (perhaps some old lady utterly ignorant of business) who has inadvertently invested in a wrong stock, by giving them the option either to recover the amount required to purchase the exact sum of right stock which would have been acquired if the trustee had obeyed the trust, or, if the r'ujht stocl- Juts dcprcciatt'cl, to call upon the trustee to make good the full original amount of the trust fund? Vvhy, too (seeing that the measure of a trustee's liability is the loss to the estate), should not an honest trustee be allowed to set off a gain on one breach of trust against a loss on another ? The difficulties and dangers that beset a benevolent trustee who consents (for no benefit to himself) to purchase the interests of one of his bene- ficiaries, might also w^ell be mitigated ; while (having regard to the principle that the wishes of a settlor are not regarded, but merely the rights which he has con- ferred on the beneficiaries), what reasonable argument is there against candidly authorising the Court, where all adult beneficiaries are unanimous, to make orders binding the interests of infants or unborn persons if convinced that they will be benefited, just as it may now bind the interests of a married woman restrained from anticipation ? Surely the judgment of a Chancery judge on such a question, after the event, is incontestal)ly superior to the crude and im])erfect foresight of some ignorant testator or his unskilful adviser, or even of those most competent jackals of the Chancery practitioner, the local curate or the parish clerk. No doubt of late years learned Preface. xi judges are tentatively enlarging their jurisdiction as to this, by purporting to sanction so-called compromises on behalf of infants, even where it is clear that if the case were argued there would be nothing to compro- mise. But that is only adding one more legal fiction ; and is not always available, especially where land is concerned. Lastly, a good Bill on repairs of trust property would be a Godsend, if it put an end to the subtleties, uncertainties, and unreasonable anomalies of the existing law. It is therefore humbly suggested that would-be legislators on Trusts would do well to put the law on a reasonable business footing, before adventuring upon Codification. The authorities in this edition are noted up to and including the April, 1912, numbers of the Law Keports. ARTHUK UNDERHILL. Lincoln's Inn, 20th April, 1912. TABLE OF CONTENTS. PAGE Preface vii Table of Contents xiii Table of Statutes Cited xix Table of Cases Cited xxvii DIVISION I.— PRELIMINARY DEFINITIONS. Art. page 1. — Definitions of Trust, Trustee, Trust Propertj', Beneficiary, and Breach of Trust ..... 2. — Definitions of Legal and Equitable Estates 3. — Definitions of Express and Constructive Trusts 4. — Definitions of Simple and Special Trusts . 5. — Definitions of Executed and Executory Trusts DIVISION II.— EXPRESS OR DECLARED TRUSTS. Chapter I. — Introduction. 6. — Analysis of an Express or Declared Trust 13 Chapter II. — Matters Essential to the prim^? facie Validity of an Express Trust. 7. — Language evincing an Intention to Create a Trust . . .15 8. — How far Valuable Consideration is necessary to bind the Settlor or his Representatives ...... 38 9. — What Property is capable of being made the Subject of a Trust u-i 10.— The Legality of the Expressed Object of the Trust . . .60 11. — Necessity or otherwise of Writing and Signature ... 78 Chapter III.— Validity of Declared Trusts in Eelation to Latent Matters. 12.— Who may be a Settlor 87 13. — ^Who may be Beneficiaries 91 xiv Table of Contents. Akt. page 14. — When a Trust is Voidable for Failure of Consideration, Mistake, ur Fraud .......... 92 15. — Effect of the Bankruptcy of the Settlor on the Validity of a Settlement 101 It;. — "When a Trust is Void as against Settlor's Creditors under 1:3 Eliz. CO 101 IT. — When a Trust is Void as against Subsequent Purchasers from Settlor 114 CiLVPTEu IV. — The Inteupketatiox of Executoky Trusts. 18. — Executory Trusts not construed so strictlj' as Executed Trusts . 119 19. — Distinction between Executory Trusts arising respectively under Marriage Ai'ticles and Wills 122 20. — How far the Wife is bound by Covenants to settle Property . 129 21. — Property which ii prima facie excluded from a Covenant to settle Other or After-acquired Pro i^erty 133 22. — What Property is comprised in a General Covenant to settle Property to which the Wife is presently entitled . . .138 23. — What is comprised in a Covenant to settle After-acquired Property of the Wife, or of the Husband in her Eight . . 1 38 24. — Covenants to settle a Definite Interest in Property . . . 142 25. — Covenants to settle Property exceeding a Certain Value . .144 DIVISION III.— CONSTRUCTIVE TRUSTS. Chapter I. — Introductiox. 26. — Analysis of Constructive Trusts 147 Chapter II. — Resulting Trusts. 27. — Where Equitable Interest not wholly disposed of . • . 149 28. — Resulting Trusts, where Trusts declared are Illegal . .155 29. — Resulting Trusts, where Purchase made in Another's Name . 159 30. — To whom Property results IGG Chapter III. — Constructive Trusts which are not Resulting. 31. — Constructive Trusts of Profits made bj' Persons in Fiduciary Positions . . . . . . . . . .175 32. — Consti-uctive Trusts where Equitable and Legal Estates are not united in the same Person ] 79 Table of Contents. xv DIVISION IV.— THE ADMINISTRATION OF A TRUST. Chapter I. — Disclaimer and Acceptance of Trusts. Art. page 33. — Disclaimer of a Trust 187 34. — Acceptance of a Trust 190 Chapter II. — The Estate of the Trustee, and its Incidents. 35. — Cases in which the Trustee takes any Estate . . . .193 36. — The Quantity of Estate taken by the Trustee of Lands . .196 37. — The EiSect of the Statutes of Limitation on the Trustee's Estate 202 38. — Bankruptcy of the Trustee 205 39. — The Incidents of the Trustee's Estate at Law .... 206 40. — Trustee's Estate on Total Failure of Beneficiaries . . . 207 Chapter III. — The Trustee's Duties. 211 214 222 228 233 246 258 41. — Duty of Trustee on Acceptance of Trust .... 42. — Duty of Trustee to obey the Directions of the Settlement unless Deviation sanctioned by the Court 43. — ^Duty of Trustee to act impartially between the Beneficiaries 44. — Duty of Trustee to sell Wasting and Reversionary Property 45. — Duty of Trustee, as between Tenant for Life and Eemainder man, in Relation to Property pending Conversion . 46. — Duty of Trustee in Relation to the Payment of Outgoings OTit of Corpus and Income respectively. .... 47. — Duty of Trustee to exercise Reasonable Care . 48. — Duty of Trustee in Relation to the Investment of Trust Funds 269 49. — Duty of Trustee to see that he paj's Trust Moneys to the Eight Persons ........... 287 50. — Duty of Trustee not to Delegate his Duties or Powers . . 292 51. — Duty of Trustees to act jointly where more than one . . 305 52. — Duty of Trustee not to set u-pJKs tertii ..... 309 53. — Duty of Trustee to act gratuitously . . . . . .311 54. — Duty of Trustee not to traffic with or otherwise profit by Trust Property 315 55. — Duty of Trustee to be ready with his Accounts . . . 323 Chapter IV. — The Powers of the Trustee. 56. — General Powers of Trustees ....... 327 57. — Power of Trustees to Sell or Mortgage the Trust Property . 335 58. — Power of Trustees in Relation to the Conduct of Sales . . 341 59. — Power of Trustees to give Receipts ...... 346 xvi Table of Contents. Art. page GO. — Power to compound and to settle Disputes . . . 340 Gl. — Power to allow Maintenance to Infants 348 62, — Power of Trustees to pay to Attornej' appointed by Beneficiary 352 63. — Suspension of the Trustee's Powers by Administration Action . 353 Chapter V. — Power of the Beneficiaries. G4. — Power of a Sole Beneficiary or of the Beneficiaries collectively to extinguish the Trust 355 Go. — Power of one of several Beneficiaries partially interested in a Special Trust ... 361 Chapter VI. — The Death, Eetiremext, or Eemoval of Trustees, axd the Appointmext of New Trustees. GG. — Survivorship of the Office and Estate .... 67. — Devolution of the Ofiice and Estate on Death of the Survivor 68. — Eetii'ement or Eemoval of a Trustee .... 69. — Appointment of New Trustees 70. — Vesting of Trust Property in New Trustees 365 366 373 376 39G Chapter VII. — Appoixtmext of a Judicial Trustee. 71. — Statutory Power of the Court to appoint a Judicial Trustee . 407 Chapter VIII. — The Public Trustee. 72. — The Nature and Eunctions of the Public Trustee and the Guarantee of the State to be answerable for his Breaches of Trust 411 73. — The Appointment of the Public Trustee as an Ordinary Trustee 416 74. — The Appointment and Eemoval of the Public Trustee or certain Corporate Bodies as mere " Custodian Trustee " . . . 419 75. — The respective Duties, Eights, and Liabilities of Custodian Ti-ustee and Management Trustees 420 76.— Special Eules relating to the Public Trustee .... 422 Chapter IX. — Admixistratiox of New Trusts created under Limited Powers in the Original Settlement. 77. — By whom New Trusts created by Appointments are to be carried out 425 Chapter X. — The Eights of the Trustee. 78. — Eight to Eeimbursement and Indemnity 429 79. — Eight to Discharge on Completion of Trusteeship . . . 440 80. — Eight to pay Trust Funds into Coui-t under certain Circum- stances 442 Table of Contents. xvi Chapter XI. — The Eight of Trustees and Beneficiaries TO SEEK THE ASSISTANCE OF THE PUBLIC TRUSTEE OR THE Court in Auditing ok Auministeuing the Trust. Art. page 81. — Eiglit of Trustee or lii'iicficiiiry to Ollicial Audit of the Tru.st Estate through the Public Trustee ...... 445 82. — Eight of Trustee or Peneticiary to take the Direction of the Court or a Judge in Eeh;tion to Specific Questions . . 417 83. — Eight tinder certain Circumstances to have the Trust adminis- tered under the Direction of the Court ..... 455 DIVISION v.— THE CONSEaUENCES OF A BREACH OF TRUST. Chapter I. — The Liability of the Trustees. 84. — The Measure of the Trustee's Eesponsibility .... 459 85. — The Liability, Joint and Several ...... 468 86. — No Set-off allowed of Gain on one Preach against Loss on another ........... 469 87. — Property Accxuired either wholly or partly out of Trust Pro- perty becomes Liable to the Trust . . . . . .471 88. — Any of the Trustees or Beneficiaries may ajiply to the Coui't by Interlocutory Motion to safeguard the Trust Property if endangered . . . . . . . . . .476 89. — Fraudulent Breach of Trust is a Crime ..... 479 Chapter II. — Protection accorded to Trustees in Case of Breach of Trust. 90. — General Protection where they have acted Eeasonably and Honestly 481 91. — Statute of Limitations ........ 484 92.— Concurrence of or Waiver or Eelease by the Beneficiaries . 492 93. — Protection against the Acts of Co-trustee .... 498 94. — Trustees generally entitled to Contribution infer sc, but may bo entitled to be Indemnified by Co-trustee or Beneficiary who instigated Breach ......... 500 Chapter III.— Liability of Third Parties and Beneficiaries. 95. — Liability of Third Parties or Beneficiaries who are Parties to a Breach of Trust 509 96.— Following Trust Property into the Hands of Third Parties . 518 INDEX. T. TABLE OF STATUTES CITED. ♦ PAGE 27 Hen. 8, c. 10. (Statute of Uses, 1535) .... li).'?, 195, 427 13 Eliz. c. 5. (B'raudulent Conveyances Act, i:>7i) . 102, lo4, 105, 106, 110, 43(1 c. 20. (Benefices Act, 1571) 58 27 Eliz. c. 4. (Fraudulent Conveyances Act, 1584) . . . 114 s. 4 124 22 ct 23 Car. 2, c. 2. (Statute of Distribution, 1670) . . . . 21 29 Car. 2, c. 3. (Statute of Frauds, 1677) — s. 4 78, 79 s. 5 79 s. 7 ....... . 78, 79 s. 8 150 1 Ja. 2, c. 17. (Statute of Distribution, 1685) .... 21 I Geo. 2, c. 14. (Navy Act, 1727)— s. 7 58 39 & 40 Geo. 3, c. 98. (Thellusson Act, 1800) . . . 65. 6(), 67, 73, 74 47 Geo. 3, sess. 2, c. 25. (Pensions Act, 1807)— ss. 1—14 58 57 Geo. 3, c. 99. (Benefices Act, 1817) 58 I I Geo. 4 & 1 Will. 4, c. 20. (Navy Act, 1830)— s. 47 59 s. 54 59 c. 40. (Administration of Estates Act, 1830) . . 208 3 & 4 Will. 4, c. 27. (Real Property Limitation Act, 1833) . . 183, 203, 204, 484, 486, 487, 490, 491, 495, 502, 508, 510, 512, 513 s. 7 203 s. 12 205 s. 25 8, 485, 486, 487, 490, 492 s. 40 492 c. 74. (Fines and Recoveries Act, 1833) . . .81, 496 4 i: 5 Will. 4, c. 76. (Poor l^aw Amendment Act, 1834) . . . 355 s. 57 3.33 5 &6 Will. 4, c. 76. (Municipal Corporations Art, 1835) ... 90 s. 94 90 7 Will. 4 & 1 Vict.c. 28. (Real Property Limitation Act, 1837)— . . 183 1 Vict. 0. 26. (Wills Act, 1837) . . . 152, 197, 199 200, 202 s. 9 79 ss. 30, 31 197, 198 1 & 2 Vict. c. 110. (Judgments Act, 1838)— s. 11 105 6 & 7 Vict. c. 18. (Parliamentary Voters Registration Act, 1843) — s. 74 207 c. 73. (Solicitor's Act, 1843) — s. 39 431 8 kO Vict, c, 18. (Lands Clauses Consolidation Act, 1845) . 218, 338 s. 7 338 s. 9 338 s. 69 338 s. 71 338 c. 106. (Real Property Act, 1845) - s. 6 55 s. 7 187 9 & 10 Vict. c. 101. (Public Money Drainage Act, 1846) , . 275, 287 b2 10& 11 Vict, , c. 11. c. -62. 11 1- 12 Vict, 13 .V: 14 Vict. c. !)(>. c. 119. c. 31. c.60. K; A: 17 Vict. c. 51. 18 k 19 Vict. 19 A: 20 Vict. c. 43. c. 9. 20 & 21 Vict. c. 57. 22 i: 23 Vict. c. 35. XX Table of Statutes. PAGE (Public Mojicy Drainage Act, 1847) . . 275, 287 (Landed Property Inipruvenieiit (Ireland) Act, 1847) 275 (Trustee Relief Act, 1847) 354 (Pul)lie Money Drainage Act, 1848) . . 275, 287 (Public Money Drainage Act, 185U) . . 275, 287 (Trustee Act, 1850) 399, 401 s. 4() 206 (Succession Duty Act, 1853) — s. 44 340 (Infant Settlements Act, 185.5) ... 88, 89 (Public Money Drainage Act, 1850) . . 275, 287 (Mercantile Law Amendment Act, 1856) . . 500 (Married Women's Reversionary Interests Act, 1857) 89, 90, 355, 496 (Law of Property Amendment Act, 1859) , . 339 s. 11 216 s. 14 195, 339 s. 15 339 s. 16 339 s. 26 289, 353 s. 31 293, 498 c. 61. (Matrimonial Causes Act, 1859) — s. 5 93, 154 (Infants Marriage Act, 1860) .... 88 (Lands Clauses Act, 1860) 248 (Trustee Act, 1860) 386 ss. 1, 2, 34 342 s. 27 380 (Larceny Act, 1861) — s. 80 479 s. 86 479 (Companies Act, 1862) — s. 30 306, 307 Table A., clause 1 306 (Confirmation of Sales Act, 18()2) . . . 344 (India Stock Certilieate Act, 1863) . . .270 (Improvement of Land Act. 1864) . . 183, 274, 275, 286 s. 24 332 28 k 29 Vict. c. 78. (Mortgage Debenture Act, 1865) .... 275 30 (.t 31 Vict. c. 144. (Policies of Assurance Act, 1867) . . , .55 31 A: 32 Vict. c. 86. (Policies of Marine Assurance Act, 1868) . . 55 32 A: 33 Vict. c. 62. (Debtors' Act, 1869) 183 c. 110. (Charitable Trusts Act, 1869) — s. 13 506 33 &; 34 Vict. c. 14. (Naturalization Act, 1870) .... 91,394 c. 23. (Forfeiture Act, 1870) 205 s. 6 91 s. 7 91 s. 8 91 s. 30 91 c. 28. (Attorneys and Solicitors Remuneration Act, 1870). s. 17 435 (National Debt Act. 1870) 270 (Married Women's Property Act, 1870) . 90, 164 (Public Loans (Canada) Act, 1873) . . .272 (.ludicaturc Act, 1.S73) . . . 5,6,55,195,449 s. 6 . . . . . . . . .55 s. 25 492, 519 s. 25(2) 486,490 (Real I'roperty Limitation Act, 1874J . 183, 484, 486, 491, 508, 513 P. 8 488 s. 10 486 c. 62. (Infants Relief Act, 1874), b. 2 . . . . 87 23 A: 24 Vict. c. 83. c. 106. c. 145. 24 & 25 Vict. c. 96. 25 i: 26 Vict. c. 89. c. 108. 26 A: 27 Vict. c. 73. 27 & 28 Vict. c. 114. 36 k'67 Vict. c. c. c. c. 71. 93. 4.5. 66. 37 k 38 Vict. c. •>i , Table of Statutes. XXI 37 i: 38 Viol. c. 78. 38 i; 39 N'ict. c. 77. c. 82. c. 87, 39 & 4U Vict. c. .V.t. 40 & 41 Vict. c. 9. c. 18. c. 59. 41 & 42 Vict. c. 19. 42 & 43 Vict. c. 78. 43 & 44 Vict. c. 8. 44 .*v: 4o Vict. c. 21. c. 41. c. G8. ir, k 40 Vict. c. 38. c. 39. 46 & 47 Vict. c. 52. c. r.i. 47 & 48 Vict. c. IS. c. 61. (Vendor aii.l I'invhiHcr A.'t. 1871V s. 2 . s. 1 . '0 (Judicature Act, 187.'») . (Ijocal Loans Act, 187.5) (Land Transfer Act, 187 s. 48 . (Judicature Act, 1870) . (Judicature Act, 1877) . (Settled Estates Act, 1877) (Colonial Stock Act, 1877) (Matrimonial Causes Act, 1878)- s. 3 (Judicature (Officers) Act, 1879) (Isle of Man Loans Act, 1880) (Married Women's Property (Sci (Conveyancing Act. ISSl) s. 4 ' . s. 18 . s. 30 . s. 31 . s. 34 . s. 3.5 . s. 36 . s. 37 . s. 39 . s. 42 . s. 43 . s. 47 . s. .56 . s. 02 . s. 70 . (Judicature Act. 1881) . (Settled Land Act, 1882) 280, 284. 327 s. 21 s. 22 s. 25 s. 33 s. 36 s. 39 33 s. 56 . s. 58 . s. 58 (1) (v.) . . s. 63 . (Conveyancing Act, 1882) s. 3 . PAGK 204, 343 . 181 . 181, 368 0, 195, 449 . 270, 271 . 308 (•), 195, 449 0, 195, 449 . 395 . 270, 271 93,154 6, 195, 449 . 274 tlanfl).\ct. 18SI) 76 2(10, 34S. -m;:,. 371 . 309 . 287 101. 300, 308. 370, 372 . .381 . .398 . 342 . 346 . 2.59, 262, 347 . 92 . .327 348 353 301 135 217 449 27.5, 268, 300. 183, 217, 2, 340, 341, 6 254, 344, 380 195, 255, 361. . 394, 3.32, 522, (Married Women's Property Act, 1882) 89, 90, 117, 132, 140, 141, 164, 195, 200, s. 3 s. 1 1 S. 19 . (Bankrni)tcv Act, 1883) s. 44 . ' s. 47 «-47(2) s. 147 (Agricultural liddings (England) Act, 1883) s. 29 (Settled Land Act, 1884) . 183, 217, 254, 284, 332, 340, 311. 314, .S61, 363, 380, (Judicature Act, 1884) .... 6, ;}63, 418 275 256 275 331 418 335 340 341 341 523 521 385 17 333, 444. 394, 195, 395, 496 1U4 102 88 102 205 436 101 379 249 249 280, 418 449 XXll Table op Statutes. il k 48 Vict. c. 71. 50 A: 51 Vict. c. 30. (Intestaics" Ef^t.itcp Act, 1S81) s. 4 s. 5 s. 7 PAGE . 209 207, 209 . 397 . 209 c. 70. c. 73. (Settled Land Acts (Amendment) Act, 1887) . 183, 217, 254, 27.->, 280, 281, 332, 340, 341, 344, 3G1, 3(13, 38(1, 394, 418 (Judicature Act, 1887) .... fi, 195, 449 (Copyhold Act, 1887)— s. to s. 45 . . 366, 371, 372 51 k 52 Vict. c. 2. (National Debt (Conversion) Act. 1888)— s. 10 224 c. 59. (Trustee Act, 1888) . 251, 4(J3, 488, 489, 490, 491, 492. 494, 496, 518 s. 2 300 s. 4 . 283 s. 5 464 s. 6 . 496 s. 8 . 28G, 484. 486, 489, 490, 491 s. 8 (1) . . . 484, 486 s. 8 (1) (a) . 484, 485, 486 s. 8 (1) (b) 48.5, 486 s. 8 (2) 485, 486 52 & 53 Vict. c. 32. (Trust Investment Act, 1889) . , . .216 c. 3G. (Settled Land Act, 1889) . . 183, 217, 254, 275, 280, 284, 332, 340, 341, 344, 361, 3G3, 386, 394, 418 c. G3. (Interpretation Act, 1889) 396 53 Vict. c. 5. (Lunacy Act. 1890) . 388. 399, 402 s. 127 . 403 s. 128 . 386 s. 129 . . 386, 399, 403 s. 133 . . 388,397 s. 134 . . 388,397 s. 135. 3SG, 388, 397, 399. 403, 404 s. 135 (1) . .404 s. 135 (2) 404 s. 135 (3) 404 s. 135 (4) 404 s. 135 (5) 404 8. 135 (6) 404 8. 136 . 586. 388, 397, 399, 403, 404, 405 s. 136 (1) 405 8. 136 (2) 405 s. 136 (3) 405 s. 136 (4) 405 s. 136 (5) 405 8. 136 (G) 405 s. 137 . , 386, 388, 397, 404 H. 138 . . 386, 388, 397, 404 s. 139 . . 386, 388, 397, 404 8. 140 . . 386, 388, 397, 404 s. 141 . 376, 386, 387, 388, 397, 404 .s. 142 . . 386, 387, 388, 397, 404 8. 143 . 387. 388, 397, 400, 404 s. 341 . . . . .404 53 k 54 Vict c. 44. (Judicature Act, 1890) 6, 195, 449 c. 69. (Settled Land Act, 1890) . . 183,217,254,275. 280, 284, 332, 340, 341, 344, 361, 3G3, 386, 394, 418 8. 13 2.55 8. IG . 217 54 & 55 Vict. c. 14. (Judicature (London Clauses) Act, 1891) . 6, 195, 449 c. 53. (Judicature Act, 1891) f,, 19,",, 449 c. 65. (Lunacy Act, 1891) 388 Table of Statutes. xxui 54 & 55 Vict. c. 73. (Morlmain and Charitable Uses Act, 1801) c. 7(i. Cl'ublic Realth (London) Act, 181)1) . 55 iS: 56 Vict. c. 13. CConvejancing Act, lS!t2)— s. 5 0. 35 (Colonial Stock Act, 1892) . c. 57. (Private Street Works Act, 1892), s. 17 . c. 58. (Accumulations Act, 1892) . 56 k 57 Vict. c. 21. (V^oluntary Conveyances Act, 1893) c. 53. (Trustee Act, 1893) 280, 281, 284, s. 1 s. 1 (a) s. 1 (b) 8. 1 (c) s. 1 (d) s. 1 (e) s. 1 (f) s- 1 (g) 8. 1 (h) s. 1 (i) s. 1 (j) s. 1 (k) s. 1 (1) s. 1 (m) s. 1 (n) s. 1 (0) s. 2 . s. 2 (1) s. 2 (2) 8. 2 (3) s. 3 . s. 4 . s. 5 . s. 5 (1) s. 5 (2) s. 5 (3) s. 5 (4) s. 5 (5) s. 6 . s. 7 . s. 8 . s. 8 (2) s. 8 (3) s. 8 (4) . s. 9 . s. 10 . s. 10 (1) . s. 10 (,2) . 8. 10 (2) (a) s. 10 (2) (b) 8. 10 (2) (c) s. 10 (2) (d) 3. 10 (3) 8. 10 (4) . 8. 10 (5) . 8. 10 (6) . s. 11 . s. 12 . s. 12 (1) . .s. 12 (2) . s. 12 (3) . s. 12,(4) . s. 12 (5) . PAGE 91, 1.59 . 250 , 385 . 271 . 248 . 67 114, 115 . 115 216, 256,257,271, 273,27.5, 85, 286, 348, 3.50, 373, 380, 387, 588. 403. 420, 421, 444, 458, 518 215. 269, 271 . 272 . 272 . 272 . 272 . 272 . 272 273, 274, 280 . 272 272.274, 280 272 272, 274, 280 273, 274, 280 273, 274, 280 . 273 . 273 . 270, 271 273 271, 273, 274 . 274 . 271, 274 . 271, 274 271,274, 282 . 272, 274 . 274 . 272, 274 . 274 . 274 . 271, 275 . 270 0, 283, 284, 280, 297, 482 . 286 . 286 . 286 460, 464 373, 374, 376, 379, 381, 383, 386, 389, 392, 396, 443 . 380 . 380 380, 384 380, 384 381, 384 . 381 . 381 378, 381 . 381 . 381 . 374 1^04. 383. 398, 417 . 398 . 398 . .398 . 398 . 398 XXIV Table of Statutes. PAGE 50 &; 57 Vict. c. 53. (Trustee Act, 1803) — roi fumed. s. 13 . 264 s. 13 (1) . . 342 s. 14 . . 264. 342. 343 s. 15 . . 264, 312 s. 17 . 300, 301, 304 s. 17 (1) . . 300, 301, 302 s. 17 (2) . . 300, 301 s. 17 (3) . . 2!t3, 300, 3U2, 304 s. 17 (4) . . 300 s. 17 (.5) . . 300 s. 18 . . 251, 268 s. 19 . . 247. 256 s. li) (2) . . 340 s. 20 . . 346. 473 8. 21 . . 259, 262, 346, 347 s. 21 (1) . . 346, 347 s. 21 (2) . . 346, 347 P. 21 (3) . . 347 s. 22 . . 365 s. 23 . . 289, 353 s. 24 . . 293, 429 s. 25 . 373, 376. 379, 383. 387 s. 2:> (1) . ... .387 s. 25 (2) . . 387 s. 25 (3) . . 388, 391 s. 26 . . 399 s. 26 (i.) . . 399 s. 26 (ii.) . . 399 s. 26 (iii.) . . 399 s. 26 (iii.) (a) . 400 s. 26 (iii.) (b) . 400 s. 26 (iii.) (c.) ..... 400 s. 26 (iv.) . . :!99, 4uo s. 26 (V.) . . 399, 400 s. 26 (vi.) . . 399, 400 s. 32 . . 399, 401 s. 33 . . 400, 401 s. 34 . . 399. 401 s. 34 (1) . 401 s. 34 (2) . 401 s.' 35 . . 399, 401 s. 35 (1) . . -(01, 402 s. 35 (2) . 403 s. 35 (3) . 403 s. 35 (4) . -103 s. 35 (5) . 403 s. 35 (6) 403 s. 36 . . 376. 399. 403 s. 36 (1) . 403 s. 3() (2) 403 s. 37 . 387 8. 38 . 376 B. 41 . 399 8. 42 . . 354, 413, 444 6. 42 (3) . 442 s. 44 . . 342, 344 s. 44 (1) 344 8. 44 (2) . 344 s. 44 (3) 344 8. 45 . . 196. 501, .'•.06, 510. 517 6. 47 . .386 s. 48 . . 205, 206 E. 50 . . 383. 391, 399 s. 51 . 344 Scliedule 344 Table of Statutes. XXV 56 .^ 57 Vict. c. t;3. 57 k 58 Vict. c. UK c. IC, c. HO. c. 4(). C. CCXUl. 59 & 60 Vict. c. 35. GO & Gl Vict. c. 65. 62 & 03 Vict. c. 20. 63 & 04 Vict. c. 02. 2 Edw. 7, c. 41. 4 Edw. 7, c. 23. 6 Edw. 7, c. 55. (Married Women's I'roiK^lv Acf. 1S93^— s. 2 . . . . " . (Trustee Act, 18'J3, Aincndmcnt Act. is'.H) . s. 3 . • s. 4 (Judicature (Procedure) Act, 18'J4) . 6, (Finance Act, 18'.H) — • s. !) (5) «-n7) (Copyhold Act, 18D4)— s. 88 . . . . . . . 300, (London Building Act, 1894) (Judicial Trustees Act, 1890) . 25S, 259, 292, 377. 408, 4u9, s. 1 . . s. 1 (1) . s. 1 (2) s. 1 (3) s. 1 (4) s. 1 (5) s. 1 (0) s. 2 . s. 3 . s. 4 . s. 4 (1) (Land Transfer Act, 18!i() PAGE . 435 . 309 . 344 . 201 195. 449 340 340 s. 1 . s. 1 (3) . . . s.2(l) . . . (Bodies Corporate (Joint Tenancy) (Colonial Stock Act, 1900) s. 2 . (Metropolis Water Act, 1902 s. 17 (4) . . . (Licensing Act, 1904) . s. 2 . s. 3 . (Public Trustee Act, 1900) s. 2 . s. 2 (1) s. 2 (2) s. 2 (3) s. 2 (4) s. 2 (5) s. 3 . s. 3 (1) s. 3 (4) s. 3 (5) s. 4 (1) s. 4 (2) s. 4 (2) (a) s. 4 (2) (b) s. 4 (2) (c) s. 4 (2) (d) s. 4 (2) (e) s. 4 (2) (f) s. 4 (2) (g) s. 4 (2) (h) s. 4 (2) (i) s. 4 (3) s. 5 (1) s. 5 (2) s. 5 (3) s. 5 (4) 407 220, 287, 390, 17, 19.5, 209, Act, 1899) 411, 413, 369, 372 . 250 200, 288, 481, 482 407 407 407 408 408 407 408 407 481, 482 409 407 339, 360, 368, 380 209 388 209 396 271 271 271 271 252 224 224 414,416, 420 41 41 2. 410. 41^ 411 411 424 412 419 412 416 414 423 415 419 420 421 421 421 421 421 422 422 422 419 419 1.41 417 416 417,418 XXVI Table of Statutes. PAGE fi Edw. 7, c. 55. (Public Trustee Act. }^0(])—rnntin)/rd. s-7(l) . 413 s. 9 . 413 s. 10 !•- 2 423, 416 s-n(i) . 411 s. 11 (2) . 422 s. 11 (5) . 423 s. 13 (1) . 445 s. 13 (2) . 446 s. 13 (3) . 446 s. 13 (4) . 446 s. 13 (5) . 446 s. 13 (G) . 446 s. 13 (8) . 446 7 Eclw. 7, c. 12. (Jlatrimonial Causes Act. l'J07) — s. 1 . 93 C.18. (Married Women's Property Act, 1907) 89, 395 s. 2 . . . . . 89 c. 47. (Deceased Wife Sister's JTarriatje Act. 19(i7) . 157 s. 2 . 1.57 8 Edw. 7, c. 47. (Lunacy Act, 1908) .... . 388 1 & 2 Geo. 5, c. 37. (Conveyancincr Act, 1911) . 372 s. 6 . 65 s. 7 92, 135 s. 8 367, 372 s. 9 231, 341 s. 10 . 341 s. 10 (3) ... . 358 s. 13 . 524 c. 40. (Lunacy Act. 1911) . . . 387.388. 897, 404 s. 1 . . . . . . 388 TABLE OF CASES CITED. A. PAGE A. V. M. (1884), 10 P. D. 178 ; rA L. J. P. 31 ; 3 W. R. 232 ... 93 Abbott, Re, Peacock v. Frigout, [1893] 1 Ch. 54 ; C,2 L. J. Oh. 40 ; G7 L. T. 794 ; 41 W. R. 154 ; 3 R. 72 73, 74 Abbott's Trust, Re, Smith r. Abbott, [1900] 2 Ch. 32(5 ; G9 T.. J. Ch. 539 ; 48 W. R. 541 152 Aberaman Ironworks v. Wickens (1868), L. R. 4 Ch. 101 ; 20 L. T. (n. s.) 89 ; 17 W. R. 211 184 Aberdeen Rail. Co. v. Blackie (1854), 1 Macq. H. L. 461 ; 2 Eq. R. 1281 . 178 — Town Council v. Aberdeen University (1877), 2 App. Cas. 544 177, 315, 319 Abrahams, Re, Abrahams v. Abrahams, [1908] 2Ch.69 ; 77 L. J. Ch. 578 ; 99 L. T. 240 515 Ackland v. Lutley (1839), 9 Ad. & El. 879 ; 8 L. J. (N. s.) Q. B. 164 ; 1 P. & D. 636 ; 48 R. R. 729 197, 200 Ackroyd v. Smithson (1780), 1 Bro. C. C. 503 ; 3 P. Wms. 22, n. : 1 Wh. &Tu. Lead. Cas. (8th ed.) 394 149,153,166,167 Acton 'V. Woodgate (1833), 2 Myl. & K. 492 ; 3 L. J. (n. s.) Ch. 83 ; 39 R. R. 251 36 Adames v. Hallett (1868), L. R. 6 Eq. 468 ; 18 L. T. (N. s.) 789 . . 106 Adams, Re, Adams v. Adams, [1893] 1 Ch. 329 ; 62 L. J. Ch. 266 ; 68 L. T. 376 ; 41 W R. 329 : 3 R. 222 . . . 349, 351. 352 , ^«, Verrier -«. Haskins(1906), 51 Sol. J. 113 352 V. Claxton (1801), 6 Ves. 226 ; 5 R. R. 263 305 V. Clifton (1826), 1 Russ. 297 ; 25 R. R. 53 292 — r. Taunton (1820), 5 Madd. 435 190 — and Kensington Vestry, Re (1884), 27 Ch. D. 394 : 54 L. J. Ch. 87 ; 51 L. T. 382 ; 32 W. R. 883 16, 24, 27 and Perry's Contract, Re, [1899] 1 Ch. 554 ; 68 L. J. Ch. 259 ; 80 L. T. 149; 47W. R. 326 19-1 Adams' Trust, Re (1879), 12 Ch. D. 634 : 48 L. J. Ch. 613 ; 41 L. T. 607 ; 28 W. R. 163 373, 379, 389 Trustees and Frost's Contract, lie, [1907] 1 Ch. 695 ; 76 L. J. Ch. 408 ; 96 L. T. 833 427 Adey v. Arnold (1852), 2 De G. M. & G. 432 : 16 Jur. 1123 : 95 R. II. 151 487 Adiington «. Cann (1740), Barn. Ch. 130 159 V. (1744), 3 Atk. 141 79 Agar V. George (1876), 2 Ch. D. 706 ; 34 L. T. (x. s.) 487 ; 24 W. R. 696 35, 138 Ainslie c. Harcourt (1860), 28 Beav. 313 ; 30 L. J. Ch. 686 ; 126 R. R. 144 337, Airey v. Hall (1856), 3 Sm. & GifE. 315 ; 2 Jur. (N. S.) 658 ; 4 W. R. 587 . 44 Akerman, Re, Akerman v. Akerman, [1891] 3 Ch. 212 ; 61 L. J. Ch. 34 ; 65 L. T. 194 ; 40 W. R. 12 513, 514,515, 517 Akeroyd's Settlement, Re, Roberts ;•. Akeroyd, [1893] 3 Ch. 363 ; 63 L. J. Ch. 32 ; 69 L. T. 474 ; 7 R. 405 l-")2 Alcock V. Sloper (1833), 2 Myl. & K. 699 ; 39 R. R. 334 . . . - 232 Alexander v. Duke of Wellington (1831). 2 Russ. & Myl. 35 ; 9 L. J. (o. s.) Ch. 36 ; 34 R. R. 1 59 Alexander's Settlement, i?(?, Jennings c. Alexander, [1910] 2 Ch. 225; 79 L. J. Ch. 656 ; 102 L. T. 909 ; 54 Sol. J. 602 'J7 Alford, Re, Hunt v. Parry (1886), 32 Ch. D. 383: 55 L. J. Ch. 659; 54 L. T. 674; 34 W.R. 773 • • -333 xxviii Table of Cases. PAGE Allan, /?/-, JIavclock r. Havelook (18Sn, 17 Cli. D. SoT ; r.O T.. J. C'h. 778 : 41 L. T. 108 : 2!)W. K. 8.VJ 333 . Jle, Havelock r. Havelock-Allan C18'.i(;). 12 T. T.. 1!. i".»'.' . . . 203 Allcard r. Skinner (1887). 30 Ch. D. 11.") : :.(•. I,. .1. Ph. lii.".2 ; :.7 L. T. 01 ; 30 W. K. 2.")1 '.13. ;»o, 117, 100 r. Walker, [ISHO] 2 C'h. 30'.> : 0.-. L. .1. Cli. My) : 71 I,. I'. 187 ; U W. K. GOl . 510 Allen r. Bcvvsey (1877), 7 Cli. D. •ir,3; 37 J.. T. 088 .... a.'i, 59 c. Jackson (1875), 1 C'li. D. 3!»'.) ; .J.", ],. .J. ('h. 310 ; 33 I,. T. (x. .'<.) 713 : 24 AV. U. 300 00.71,72 r. Seckham (1871)), 11 Ch. D. 71)0 ; 48 L. .1. Ch. Oil : 11 L. T. 20(i ; 28 W. R. 20 525 Allhusen r. Whittell (1807), L. U. 4 Eq. 205: -.U) I.. .1. Ch. 1)2;) : 10 L. T. (N. S.) 095 247 Alsburv, Jle, Sugden i: Alsbury (1890), 45 Ch. D. 237 ; 00 L. .1. Cli. 21i ; 03"L. T. 570; 39 W. 11. 130; 2 Meg. 340 224 Alston. Be. Alston v. Houston, [1901] 2 Ch. 584 : 70 L. J. Ch. 809 . 214. 245, 240. 510 Alton V. Harrison (1869), L. R. 4 Ch. 022 : 38 L. J. Ch. 009 : 21 T.. T. (N. s.) 282 ; 17 W. R. 1034 114 Ambler's Trusts, ^i- (1888). 59 L.T. 210 380 Ames, Jle, Ames v. Taylor (1883), 25 Ch. D. 72 ; 32 W. R. 287 . . .313 r. Parkinson (1844), 7 Beav. 379 ; 64 R. R. 100 . . . .271 Amiss r. Hall (1857), 3 Jur. (N. S.) 584 ; 108 R. R. 937 . . . .463 Ancketill, Be, Ea- 2)arte Scottish Provident Institution (1891). 27 L. R. Ir. 331 244 Anderson r. Abbott (1857), 23 Beav. 457 ; 3 Jur. (n. s.) 833 : 5 W. K. 381 ; 113R. R. 221 53 r. Elsworth (1801), 3 Giff. 154 ; 30 L. J. Ch. 922 : 7 Jur. ( N. s.) 1047 ; 4 L. T. (N. S.) 822 ; 9 W. R. 888 92 Andrews, lie, Edwards v. Dewar (188.5). 30 Ch. D. 159 ; 54 L. J. Ch. 1()49 ; 53 L. T. 422 ; 34 \V. R. 02 435 . r. Bouslield (1847). 10 Beav. 511 : 70 R. R. 188 ... 511 Andrews' Trusts, lie (1878), 7 Ch. D. 035 ; 20 W. R. 572 : 38 L. T. 137 . 101 — , lie. Carter r. Andrew. [1905] 2 Ch. 48 : 74 L. J. Ch. 402 : 99 L. T. 766; 53 W. R. 585 : 21 T. L. R. 512 .... 152, 330 Anon. (1697), Com. Rep. 43 519 (1821), OMadd. 10 205,478 Anson, lie, Lovelace r. Anson, [1907] 2 Ch. 424: 70 L. .1. Ch. Oil ; 97 L. T. 472 276 t,. Potter (1879), 13 Ch. D. 141 ; 41 L. T. 582 360 Anstis. lie, Chetwynd v. Morgan (1880), 31 Ch. D. 590 ; 54 L. T. 742 ; 34 W. R. 483 38, 52 Antrobusr. Smith(1805), 12 Vcs. 39 : 8 R. R. 278 .... 38,45 Appleby, i^^. Walker -y. Lever; Walker v. Nisbet, [1903] 1 Ch. 505; 72 L. J. Ch. 332 ; 88 L. T. 219 ; 51 W. R. 455 ... 05, 74, 235, 245, 359 Arbib and Class's Contract. Re, [1891] 1 Ch. 001 ; 00 L. J. Ch. 203; 04 L. T. 217 ; 39 W. R. 305 190, 192 Arbuthnot r. Norton (1840), 5 Moo. P. C. 219 : 3 Moo. Ind. App. 435 ; 10 Jur. 145 59 Archer r. Kelly (1800), 1 Dr. & Sm. 300 ; 29 L. J. Ch. 91 1 : Jur. (x. s.) 814 ; 8 W. R. 084 ; 127 R. R. 115 142 Armitage, He. Armitage r. Garnett, [1893] 3 Ch. 337 ; 03 L. J. Ch. IK' : 69 L. T. 019 : 7 R. 290 225 Armstrong /-.Armstrong (1874), L. R. 18 Eq. 541 ; 43 L. J. Ch. 719 . . 338 /•. Reeves (1890), 25 L. R. Ir. 325 77 r. Timperon, [1871] W. N. 1 : 21 L. 1'. (X. s.) 275 : 19 W. R. 558 43 Arnold r. Chapman (1748), 1 Vcs. Sen. 108 159 r. Garner (1847), 2 Ph. 231 ; 10 L. J. Cii. 329: 11 Jur. 339; 78 R. R. 78 182 Arnould r. Grinstead (1872), 21 W. R. 155 276 A.shbv, 7/e, K.r parte Wreford, [1892] 1 Q. B. 872; (10 L. T. 3.';3 : 40 W. R. 430 ; 9 Morrell, 77 30, 08, 302 V. Blackwell (1765j, 2 Eden, 302 ; Ambl. 503 ... 287, 288 Table of Cases. xxix PAtJK Ashby r. Costin (1SS8), 21 Q. B. D. 401 ; 57 L. J. Q. B. 101 ; fj'J L. T. 22 1 ; :i7 \V. U. IIU; 5:iJ. P.6'J 12 Ashley v. Ashley (1877), 4 Ch. D. 7o7 ; 4(j L. J. Ch. :{22 ; 'M L. T. 2U0 ; 25 W. E. 35G 208 Askew r. Woodhead (1880), 14 Oh. i). 27 ; 4'J L. J. Ch. :}20 ; 41 L. T. (570 ; 28 W. R. 874 230 Assets Realization Co. v. Trustees, Executors and Securities Insurance Cor- poration (1895), 05 L. J. Ch. 74 ; 44 W. R. 126 374 Astley r. Milles (1827), 1 Sim. 2!}8 ; 27 R. R. 190 182 Atkins, J^^, Newman f. Sinclair (1899), 81 L. T. 421 329 Atkin.4), 1!) Bcav. li)8 ; 3 Eij. K. 3(i'J ; 24 L. J. (Jli. 94 ; 1 j"uv. (N- s.) 4."")S : I()5 11. K. ll."> . . . . 19G, 19S Beaumont's Jlortgage Trusts, Re (1871), L. K. 12 Eq. 80 ; 40 L. J. Ch. 400: 19 W. K. 767 344 Beck f. Kantorowicz (1857), 3 Kiiy cV: J. 230 ; 112 11. U. 123 . . .178 Bcckfor.l r. Beckford (1774), Lofft, 490 160, 165 r. Wade (1805), 17 Ves. 87 ; 11 K. H. 2U 491 P.ecklev r. Xewlaiid (1723), 2 P. Wnis. 182 56 Bcctive (Lord) r. Hodgson (1864), 12 W. K. 625; lu Jl. L. Cas. 656; lO L. T. (N. s.) 202 ; 10 Jur. (N. s.) 375 351 Beddoe, Ih; Dowues r. Cottam, [1893] 1 Ch. 547 : 62 L. J. Ch. 233 ; 68 L. T. 595; 41 \V. U. 177; 2 K. 223 434 Beddocs /•. Pugh (1859), 26 Bt-av. 407 ; 122 It. It. Kil 310 Bedford (Duke) c. Abercoru (.Manjuis) (1836), 1 Myl. .V: Cr. 312 ; 5 L. J. (N. s.) Ch. 230; 43K. K. 200 124 c. Coke (1751), 2 Ves. Sen. 116 155 Bedilian t\ Seaton (1860), 3 Wall. Jun. 279 84 Beecher r. lAIajor (1865), 2 Dresv. & Sm. 431 ; affirmed 13 W. It. lo.-,l ; 13 L. T. (N. s.) 54 165 Beeny, Be, Ffrench r. Sprostun, [1894] 1 Ch. 499 ; 63 J,. .1. (.h. 312 ; 70 L. T. 160 ; 42 W. R. 377 477 Bcgbie i: Crook (1835), 2 Bing. N. C. 70 ; 4 L.J. (N.s.) C. P. 264 ; 2 Scott, 128 187 Belchier, Ex parte, E-c parte Parsons (175lj, Ambl. 218 . 293, 297, 298, 302, 303, 305, 308 Belk r. Slack (1836), 1 Keen, 238 ; 44 It. It. 71 170 Bell, Re, Jefferv v. Savles, [1896] 1 Ch. 1 ; 65 L. J. Ch. 188 ; 73 L. T. 391 ; 44 W. E. 99 361 , Re, Lake v. Bell (1886). 34 Ch. D. 462 ; 56 L. J. eh. o07 ; 55 L. T. 757 ; 35 W. K. 212 181,491 c. Barnett (1872), 21 W. K. 119 177 r. Turner (1877). 47 L.J. Ch. 75 433 Bellamy and ISIetropolitan Board of Works, Re (1883), 24 Ch. I». 387 ; 52 L. J. Ch. 870 ; 48 L. T. 801 ; 31 W. K. 900 : 4? J. P. 55(1 . . 292, 300 Bella-sis' Trusts, Re (1871), L. K. 12 Eq. 218 ; 19 W. U. 699 ; 24 L. T. (N. s.) 466 43 Bellinger, Re, Uurell r. Bellinger, [1898] 2 L'ii. 534 : 67 L. J. Ch. 580 ; 79 L. T. 54 337 Bellis's Trusts. Re (1877), 5 Ch. D. 504 ; 46 L. J. L h. 353 ; 36 L. T. (i44 ; 25 W. K. 456 369 Bellringer r. Blai^rave (1847), 1 De G. A: Sm. 63 ; 11 Jur. 427 ; 75 P. P. 38 2<;6 Benbow c. Davies (1848), 11 Beav. 369 ; 83 11. 11. 198 .... 189 c. Towuseud (1833), 1 Myl. A: K. 50() ; 2 L. J. (x. s.) Ch. 215 ; 36 K. R. 359 78, 155 Bence, Re, Smith c. Benee, [1891] 3 Ch. 242 ; 6U L. .J. Ch. 636 ; 65 L. T. 530 61, 74 r. Gilpin (1868), L. R. 3 E.\. 76; 37 L. J. E.\. 36; 17 L. T. (N. S.) 655 ; 16 W. R. 705 190 Bendy, Re, Wallis r. Bendv, [1895] 1 Ch. 109 ; 64 L. J. Ch. 17(i : 71 L. T. 750 ; 43 W. R. 345 ; 13 R. 95 134 I'.endyshe, Re (1857), 3 Jur. (n. S.) 727 ; 5 W. R. 816 ; 2(i L. J. Ch. 814. 333, 444 Benelt, Re, Ward c. Bcnett, [1906] 1 Ch. 217 ; 75 L.J. Ch. 122 ; 94 L. T. 72 ; 54 W. R. 237 260, 261 r. Wyndhara (1862), 4 De G. F. ic J. 259 .... 293, 430 Beningfield v. Ba.xter (1886), 12 App. Cas. 167 ; 56 L. J. P. C. 13 ; :a\ L.T, 127 319 Beiin V. Uixon (iHio;, 10 Sim. 636 : 9 h. J. (n. s.) Ch. 259 ; 4 Jur, 575 ; 51 R. R. 328 231 P.ennet /•. Mennot (1879), lo (h. D. 171 ; 40 L. T. :i78 ; 27 W . It. 573. 161. 166 y. Davis (1725), 2 P. Wins. 316 17, 2(i(; Bennett, Ex parte (1805), lo Ves. 3H1 ; 8 R. R. 1 . . . 315, 320, 321 r. Burgis (1846), 5 Hare 295 ; 15 L. .1. Ch. 231 : 10 Jur. 153 ; 71 R.R. 114 213 «•. Colley (1832), 5 Sim. 182 ; 35 R. R. 135 477 Table of Cases. xxxiii PAGE Bennett v. Gas Light and Coke Co. (1882), 52 L. J. Ch. 98 ; 48 L. T. 156 316 ('. Wj-ndhara (1857), 23 Beav. 521 ; 3 Jur. (s. s.) 1143 ; 5 W. R. 410; 113 R. R. 247 . 220 Bennison, He, Cutler v. Boyd (1889), 60 L. T. 859 .. . 216, 287, 467 Benson, He, Elletson v. Fillers, [1899] 1 Ch. 39 ; 68 L. J. Ch. 5 ; 79 L. T. 590 ; 47 W. R. 264 477, 479 V. Whittam (1831), 5 Sim. 22 : 1 L. J. (n. s.) Ch. 94 ; 35 R. R. 113 33 Bentham, i??, Pearce r. Bentham (1906), 94 L. T. 307 . . . .236 V. Haincourt (1691), Pr. Ch. 30 181 Bentley r. Mackay (1851), 15 Beav. 12 ; 92 R. R. 280 .... 42 Benyon v. Nettlefold (1850), 3 Mac. & G. 94 ; 20 L. J. Cli. 186 ; 15 Jur. 209; 87 R. R. 25 157 Berens, /^e, Berens r?. Berens, [1888] W. N. 95 447,452 Beresford r. Beresford (1857), 23 Beav. 292 220 Berkeley's (Earl) Will, Re (1874), L. R. 10 Ch. 56 ; 44 L. J. Ch. 3 ; 31 L. T. (N. s.) 531 ; 23 W. R. 195 257 Berry c. Berry (1878), 7 Ch. D. 657 ; 47 L. J. Ch. 182 : 38 L. T. 474 ; 26 W. R. 327 200 V. Gibbons (1873), L. R. 8 Ch. 747 : 42 L. J. Ch. 89 ; 29 I,. T. (K. s.) 88 ; 21 W. R. 754 353, 354 Berwick-upon-Tweed Corporation v. Murray (1857), 7 De G. M. & G. 497 ; 26 L. J. Ch. 201 ; 3 Jur. (N. s.) 847; 5 W. R. 208; 109 R. R. 218 . 465 Bethell v. Abraham (1873), L. R. 17 Eq. 24 ; 43 L. J. Ch. 180 ; 29 L. T. (N. S.) 715 ; 22 W. R. 179 276, 277, 354 Betjemann v. Betjemann, [1895] 2 Ch. 474 ; 64 L. J. Ch. 641 ; 73 L. T. 2 ; 44 W. R. 182 ; 12 R. 455 180, 323 Betty, Be, Betty r. Att.-Gcn., [1899] 1 Ch. 821 ; 68 L.J. Ch. 435 ; 80 L. T. 675 246. 250. 254 Beulah Park Estate. Ee (1872), L. R. 15 Eq. 43 429, 435 Bevan t). Webb, [1905] 1 Ch. 620; 74 L. J. Ch. 300: 93 L. T. 298; 53 W. R. 651 176, 177 Beverley. Be, Watson v. Watson, [1901] 1 Ch. 681 ; 70 L. J. Ch. 295 ; 84 L. T. 296 ; 49 W. R. 343 ; 17 T. L. R. 228 228 Biddulph V. Williams (1875), 1 Ch. D. 203 150 Biggs V. Peacock (1882), 22 Ch. D. 284 ; 52 L. J. Ch. 1 ; 47 L. T. 341 ; 31 W. R. 148 358 Bignold's Settlement Trusts, Be (1872), L. R. 7 Ch. 223 ; 41 L. J.Ch. 235 ; 26 L. T. (N. e.) 176 ; 20 W. R. 345 . . . 373, 374, 378, 379, 381, 390 Bill V. Cureton (1835), 2 Myl. & K. 503 ; 4 L. J. (N. s.) Ch. 98 ; 39 R. R. 258 36 Billingsley v. Critchett (1783), 1 Bro. C. C. 268 333 Billson V. Crofts (1873), L. R. 15 Eq. 314 ; 42 L. J. Ch. 531 ; 21 W. R. 504... 68, 362 Bindley v. Mulloney (1869), L. R. 7 Eq. 343 ; 20 L. T. (x. s.) 263 ; 17 W. R. 510 71 Bingham r. Clanmorris (Lord) (1828), 2 Moll. 253 188 Binney v. Ince Hall Coal and Cannel Co. (1866), 35 L. J. Ch. 363 ; 14 L. T. (N. s.) 392 306, 307 Birch V. Blagrave (1735), Ambl. 264 155, 158, 161 Birchall, Be, Birchall r. Ashton (1889), 40 Ch. P. 436 ; 60 L. T. 369 ; 37 W. R. 387 188, 189 Bird, Be, Dodd v. Evans, [19011 1 Ch. 916 : 70 L. J.Ch. 514 ; 84 L.T.294 ; 49 W. R. 599 . " 246, 516 , Be, Oriental Commercial Bank v. Savin (1873), L. R. 16 Eq. 203 ; 28 L. T. (N. s.) 658 ; 21 W. R. 725 300 , Be, Pitman v. Pitman, [1892] 1 Ch. 279 ; 61 L. J. Ch. 288 ; 66 L. T. 274; 40 W. R. 359 174 V. Harris (1870), L. R. 9 Eq. 204 : 39 I. J. Ch. 226 : 23 L. T. (N. s.) 213 ; 18 W. R. 374 31, 32 ('. May bury (1864), 33 Beav. 351 34 Bird's Trusts, i?f, (1876), 3 Ch. D. 214 19l> Birksr. Micklethwait (1864), 33 Beav. 409 500 V. (1864) 34 L. J. Ch. 362 ; 13 L. T. (N. s.) 31 . _ • 432 Birmingham Excelsior Money Society v. Lane, [1904] 1 K. B. 35 ; 73 L. J. (K. B.) 28 ; 89 L. T. 656 : 52 W. R. 84 : 20 T. L. R. 4 7 . . 496 Birtr. Burt (1877), 11 Ch. D. 773, u 472 T. C xxxiv Table of Cases. PAGE Bishop, Ex parte, iZeTonnies (1873), L. R.8 Ch. 718 ; 42 L.J. Bk.l07; 28 L. T. (N. s.) 862 ; 21 W. R. 716 101, 103 Biss. Be, Biss v. Biss, [1903] 2 Ch. 40 ; 72 L. J. Ch. 473 ; 88 L.T. 403; 51 W. R. 504 175, 176, 177 Bizzey v. Flight (1876), 3 Ch. D. 269 ; 24 W. R. 957 ; 45 L. J. Ch. 852.. .40, 42, 43 Blackburn v. Stables (1814), 2 Ves. & B. 367 ; 13 R. R. 120 . . .127 Blackburnc v. Hope-Edwardes, [1901] 1 Ch. 419; 70 L. J. Ch. 99; 83 L. T. 370 ; 48 W. R. 701 338 Elacklow r. Laws (1842), 2Hare, 40 ; 62 R. R. 11 217 Blackwood v. Borrowes (1843), 4 Dru. & War. 441 ; 2 Con. & L. 459 ; 65 R. R. 729 469 Bladon, Re, Dando r. Porter, [1911] 2 Ch. 350 ; 105 L. T. 367 . . . 224 Re, r. , [1912] 1 Ch. 45 ; 28T. L. R. 57 . . . 224 Blagrave v. Blagrave (1849), 4 Ex. 550 ; 19 L. J. E.x. 414 : 80 R. R. 686. ..199 Blagrave's Settled Estates, Re, [1903] 1 Ch. 560 ; 72 L. J. Ch. 317 : 88 L. T. 2.53 ; 51 W. R. 437 ; 19 T. L. R. 280 255 Blaiberg and Abrahams, Re, [1899] 2 Ch. 340 ; 68 L. J. Ch. 578 ; 81 L. T. 75 ; 47 W. R. 634 520 Blair r. Duncan, [1902] A. C. 37 ; 71 L. J. P. C. 22 ; 86 L. T. 157 ; 50 W. R. 369 ; 18 T. L. R. 194 19 Blake, iie, [1887] W. N. 173 379,386 , Re, Blake v. Power (1889), 37 W. R. 441 ; 60 L. T. 663 . . 96, 155 , Re, Jones v. Blake (1885), 29 Ch. D. 913 ; 54 L. J. Ch. 880 ; 53 L. T. 302 ; 33 W. R. 886 327. 329, 455, 456 V. Blake (1786), 1 Cox, 266 ; 1 R. R. 35 176 Blakely Ordnance Co., Re, Ex parte New Zealand Banking Corporation (1867), L. R. 3 Ch. 154; 37 L. J. Ch. 418 ; 18 L. T. (N. S.) 132; 16 W. R. 533 519 Blaker v. Anscombe (1804), 1 Bos. & P. (N. R.) 25 ; 8 R. R. 746 . . 196 Bleazard v. Whalley (1854), 2 Eq. Rep. 1093 ; 2 W. R. 608 ; 18 Jur. 869 . 332 Blew, Re, Blew %: Gunner, [1906] 1 Ch. 624 ; 75 L. J. Ch. 373 ; 95 L. T. 382 ; 54 W. R. 481 63 Blinkhornt>. Feast (1750), 2 Ves. Sen. 27 209 Blodwell V. Edwards (1596), Cro. Eliz. 509 60, 69 Blount V. O'Connor (1886), 17 L. R. Jr. 62U 276 Bloye's Trust, Re (1849), 1 Mac. & G. 488 ; 2 Hall k Tw. 140 ; 19 L. J. Ch. 89 ; 14 Jur. 49 320 Blue -y. Marshall (1735), 3 P. Wms. 381 262 Blundell, Re, [1901] 2 Ch. 221 ; 70 L. J. Ch. 522 ; 84 L. T. 706 . . 135 , Re, Blundell v. Blundell (1888), 40 Ch. D. 370 ; 57 L.J. Ch. 730 ; 58 L. T. 933 ; 36 W. R. 779. ..185, 469, 511,521 . Re, r. (1890), 44 Ch. D. 1 ; 59 L. J. Ch. 269 ; 62 L. T. 620 ; 38 W. R. 707 440 Blyth V. Fladgate, [1891] 1 Ch. 337 ; 60 L. J. Ch. 66 ; 63 L. T. 546 ; 39 W.R. 422 469, .501. 509, 512 Blythe r. Granville (1842), 13 Sim. 190 ; 12 L. J. Ch. 82 ; 6 Jui-. 961 . . 142 Blythe's Trustees r. Milne (1905), 7 F. (Ct. of Sess.) 799 ... . 224 Bodmin (Lady) v. Vandenbendy (1683), 1 Vern. 179 518 Bolderor. London and Westminster Discount Co. (1879). 5 Ex. D. 47 ; 42 L. T. .56; 28 W. R. 154 . . .114 Boles and British Land Co.'s Contract, Re, [1902] 1 Ch. 244 ; 71 L. J. Ch. 130 ; 85 L. T. 607 ; 50 VV. R. 185 316, 319, 321 BoUand, Ex parte, Re Clint (1873), L. R. 17 Eq. 115 ; 43 L. J. Bk. 16; 29 L. T. (N. s.) 543 ; 22 W. R. 152 108 Bolton, Re, Brown v. Bolton (1886), 31 Ch. D. 542 ; 55 L. J. Ch. 398 ; 54 L. T. 396 ; 34 W. R. 325 ; 50 J. P. 532 70 r. Curre, [1895] 1 Ch. 544 ; 64 L. J. Ch. 164 ; 71 L. T. 752 ; 43 W. R. .521 ; 13 R. 174 .507,508,510,514 Bond, Re, Cole v. Hawes (1876), 4 Ch. D. 238 ; 46 L. J. Ch. 488 ; 25 W. R. 95 29 r. Walford (1886), 32 Ch. D. 238 ; 55 L. J. Ch. 667 ; 54 L. T. 672.. .92, 93 154 Bone V. Cook (1824), McClel. 168 ; 13 Price, 332 ; 28 R. R. 697 . . . ' 498 V. Pollard (1857), 24 Beav. 283 ; 116 R. R. 121 . . . . 160, 163 Mooth, Re, Booth r. Booth, [1894] 2 Ch. 282 ; 63 L. J. Ch. 560 ; 42 W. R. 612 ; 8 R. 256 .-(I, 33 Table of Cases. xxxv PAGK Booth r. Booth (18:38), 1 Bcav. 12r, ; 8 L. J. (x. s.) Cli. :5!»; 2 Jiir. 938 ; 4!) R. 11. ;i04 lito, 51:5 i: Turle (1873), L. R. 10 Eq. 182 ; 21 W. R. 721 .. . 8(5, 185 Bootle V. BlundcU (1815), 1 Mer. 193 ; 19 Ves. 194 ; 15 R. R. 93 . . 337 Bostock V. Floyer (1865), L. R. 1 Eq. 26 ; 35 Bcav. 603 ; 35 L. J. Ch. 23 ; 13 L. T. (N. s.) 489 ; 11 Jur. (N. S.) 962 ; 14 VV. R. 120 . . 288, 300 Bosworth, Re, Martin v. Larube (1889), 58 L. J. Uh. 432 . . . 324, 326 Bott i'. Smith (1856), 21 Beav. 511 107 Bouch, ^e. Sproulc r. Bouch (1885), 29 Ch. D. 635 .... 223,224 V. Sproule (1887), 12 App. Cas. 385; 56 L. J. Ch. 1037 ; 57 L. T. 345 ; 36 W. R. 193 222, 223, 224 Boucherett, Re, Barne v. Erskiiic, [1908] 1 Ch. 180 ; 77 L. J. Ch. 205 ; 98 L. T. 32 380 Boughtou i: Knight (1873), L. R. 3 P. & D. 64 ; 42 L. J. P. 25; 28 L. T. (N. s.) 562 90 Boulton c. Beard (1853), 3 De G. M. & G. 608 ; 98 R. R. 252 , . . 25X Bourke, Re (1864), 2 De G. J. & S. 426 103 Bourne v. Mole (1845), 8 Beav. 177 ; 68 R. R. 59 478 Boursot r. Savage (1866), L. R. 2 Eq. 134; 35 L. J. Ch. 627; 14 L. T. (N. s.) 299 ; 14 W. R. 565 518, 522 Bowden, Re, Andrew r. Cooper (1890), 45 Ch. D. 444; 59 L. J. Ch. 815; 39 \V. R. 219 487 Bowen v. Phillips, [1897] 1 Ch. 174 ; 66 L.J. Ch. 165 ; 75 L. T. 628 ; 45 W. R. 286 478 Bower v. Smith (1871), 19 W. R. 399 ; L. R. 11 E<|. 279 ; 40 L. J. Ch. 194 ; 24L. T. (N.s.) 118 135,136,145 Bowes V. East London Water Co. (1821), Jac. 324 ; 23 R. R. 84 . 327, 332 V. Strathraore (Earl) (1843), 8 Jur. 92 ; 69 R. R. 902 . . . 332 Bowlby, Re, Bowlby r. Bowlby, [1904] 2 Ch. 685 ; 73 L. J. Ch. 810 ; 91 L. T. 573 ; 53 W. R. 270 350, 351 Bowles, Re, Amedroz r. Bowles, [1902] 2 Ch. 650 ; 71 L. J. Ch. 822 ; 51 W. R. 124 65 V. Stewart (1803), 1 Sch. lV LqL 226 493 Boyce r. Boyce (1849), 16 Sim. 476 20 Boyd V. Boyd (1867), L. R. 4 Eq. 305 ; 36 L. J. Ch. 877 ; 16 L. T. (n. s.) 660 ; 15 W. R. 1071 333 Boyd's Settled Estates, Re (1880), 14 Ch. I). 626 ; 49 L. J. Ch. 808; 43 L. T. 348 282 Boyes, Re, Boyes v. Carritt (1884), 26 Ch. D. 531 ; 53 L. J. Ch. 654 ; 50 L. T. 581 ; 32 W. R. 630 79, 82, 153 Brackenbury v. Brackenbury (1820), 2 Jac. & W. 391 ; 22 R. R. 180. ..155, 156 Bradford Banking Co. i: Briggs (1886), 12 App. Cas. 29 ; 56 L. J. Ch. 364 ; 56 L. T. 62 ; 35 W. R. 521 307 Bradley, .Be, i/".c2;fl/-^e Walton (1910), 54 Sol. J. 377 263 r. Riches (1878), 9 Ch. D. 189 ; 47 L. J. Ch. 811 ; 38 L. T. 810 ; 26 W. R. 910 522, 523 Bradwell v. Catchpole (1711), 3 Swans. 78, n. ; 19 R. R. 180 . . 498, 499 Braithwaite c. Att.-Gen., [1909] 1 Ch. 510 ; 78 L. J. Ch. 314 ; 100 L. T. 599 ; 73 J. P. 209 ; 25 T. L. R. 333 68 Brandlyn r. Ord (1738), 1 Atk. 571 ; 1 West, 512 526 Brandon v. Robinson (1811), 18 Ves. 429 ; 1 Rose, 197 ; 11 R. R. 226.. .60, 69, 362 Brassey v. Chalmers (1853), 4 De G. M. & G. 528 ; 102 R. R. 257 . . 335 Bray r. West (1838), 9 Sim. 429; 47 R. R. 278 188,189 Braybroke r. Inskip (1803), 8 Ves. 417 ; 7 R. R. 106 ; Tudor's Lead. Cas. Conv. (4th ed.) 322 369 Breeds' Will, Re (1875), 1 Ch. D. 226 ; 46 L. J. Ch. 191 ; 24 W. R. 200.. .334, 349 Brentwood Brick and Coal Co., Re (1876), 4 Ch. D. 562 ; 46 L.J. Ch. 554; 36 L. T. 343 ; 25 W. R. 481 181 Breton's Estate, Re, Breton r. Woollven (1881), 17 Ch. D. 416 ; 50 L. J. Ch. 369 ; 44 L. T. 337 ; 27 W. R. 777 38, 44, 40 Brewster v. Angell (1820), 1 Jac. & W. 625 124 Brice v. Stokes (1805), 11 Ves. 319 ; 2 Wh. & Tu. Lead. Cas. (7th ed.) 633 ; 8 R. R. 164 258, 293, 308, 492 Bridge, Re, Franks r. Worth (1887), 56 L. J. Ch. 779 ; 56 L. T. 726; 35 W. R. 663 447, 450 c2 xxxvi Table of Cases. PAGE Brulgo V. Bridge (1852). 10 Beav. 315 ; 22 L. J. Ch. 189 ; 1(J Jur. 1U31 ; 1 W. R. 4 ; 21 L. T. (O. 6.) 75 ; 96 R. R. 144 .... 42 V. Brown (1843), 2 Y. & Coll. C. C. 181 ; 60 R. R. 1 12 . . . 332 Bridgman r. Gill (1857), 24 Beav. 302 511 Brier, Re, Brier v. Evison (1884), 26 Ch. D. 238 ; 51 L. T. 133 ; 33 W. R. 20. ..294, 303 Brierley, i?^, Bricrley v. Brierlev (1894), 43 W. R. 36 ; 12 R. 55 ... 22 Briggs V. Hartley (1850;, 19 L. J. Ch. 416 ; 14 Jur. 683 : 15 L. T. (o. S.) 273 ; 87 R. R. 514 19 r. .Jones (1870), L. R. 10 Eq. 92 ; 22 L. T. (X. s.) 212 . . .115 r. Massey (1882). 30 W. R. 325 ; 51 L. J. Ch. 447; 46 L. T. 354. ..462 r. Penny (1851). 3 Mac. & G. 546 ; 3 De G. & Sm. 525 ; 21 L. J. Ch. 265 ; 16 Jur. 93 : 18 L. T. (o. s.) 101 ; 87 R. R. 192 .... 79 Bright 1-. North (1847), 2 Ph. 216 ; 78 R. R. 74 327, 331 Briusden v. Williams, [1894] 3 Ch. 185 ; 63 L. J. Ch. 713 : 71 L. T. 177 ; 42 W. R. 700 ; 8 R. 574 511,512 Broadhurst r. Balguy (1841), 1 Y. & Coll. C. C. 16 ; 57 R. R. 212 . 492, 495 Broadwood's Settlement, Hfi, Broadwood v. Broadwood, [1908] 1 Ch. 115 ; 77 L. J. Ch. 18; 98 L. T. 217 245 Brocksopp i: Barnes (1820), 5 Madd. 90 312 Brogden, Be, Billing v. Brogden (1888), 38 Ch. D, 546 ; 59 L. T. 650 ; 37 W. R. 84 259, 260. 262, 263, 347 Brooke, Re, Brooke v. Brooke, [1894] 1 Ch. 43 ; 63 L. J. Ch. 159 ; 70 L. T. 71 ; 42 W. R. 186 ; 8 R. 24 195, 200 V. Haymes (1868), L. R. 6 Eq. 25 191, 367 /■. Pearson (1859), 27 Beav. 181 ; 5 Jur. (x. S.) 781 ; 7 W. R. 638 ; ■ 122 R. R. 364 68 Brooks, Re, Coles v. Davis (1897), 76 L. T. 771 227, 228 V. Keith (1861), 1 Dr.& Sm. 462 ; 7 Jur. (N. S.) 482 ; 4 L.T.(N.S.) 541 ; 9 W. R. 565; 127 R. R. 189 142 Brougham (Lord) *'. Poulett (Lord) (1855), 19 Beav. 119 ; 24 L. J. Ch.233 ; 1 Jur. (N. s.) 151 ; 105 R. R. 85 247 Browell r. Reed (1842), 1 Hare, 434 ; 1 1 L. J. Ch. 272 ; 6 Jur. 530 ; 58 R. R. 130. ..190 Brown, 7?.', Benson r. Grant, [1895] W. N. 115 325 , Re, Brown v. Brown (188.5), 29 Ch. D. 889 : 54 L. J. Ch. 1134 ; 52 L. T. 853 ; 33 W. R. 692 276 , Re, Dixon v. Brown (1886), 32 Ch. D. 597; 55 L. J. Ch. 556 ; 54 L. T. 789 7,517 , Re, Ingall r. Brown, [1904] 1 Ch. 120 ; 73 I>. J. Ch. 130 : 90 L. T. 220 ; 52 W. R. 173 73 r. Adams (1869), L. R. 4 Ch. 764 ; 39 L. J. Ch. 67 ; 21 L. T. (n. s.) 71 • 17 W. R. 999 ......... 475 I'. Brown (1808), L. R. 7 Eq. 185 ; 38 L. J. Ch. 153 ; 19 L.T. (N. s.) 594 ; 17 W. K. 98 97 r. Burdett (1882), 21 Ch. D. 007 61. 78 r. Casamajor (1799), 4 Ves. 498 33 V. De Tastet (1821), .Lac. 284 ; 23 K. R. 59 315 V. Dimblebv, [1904] 1 K. B. 28 ; 73 L. J. K. B. 35 ; 89 L. T. 424 ; 52 W.'R. 53 496 i: Gellatly (1867), L. R. 2 Ch. 751 ; 17 L. T. (n. s.) 131 ; 15 W. R. 1188 234, 237,240 r. Higgs (1799), 4 Ves. 708 ; 4 R. R. 323 15 f. How (1741), Barn. Ch. 354 356 V. Litton (1711), 1 P. Wms. 140 ; 10 Mod. 20 .... 312, 315 V. Sansome (1825). M'Clel. & Y. 427 ; 29 R. R. 813 ... 466 r. Smith, [1878] W. N. 202 328 r. Whiteway (1840), 8 Hare, 145 ; 85 R. R. 261 . . . .201 and Sibley's Contract, Re (1876), 3 Ch. D. 156 ; 35 L. T. 305 ; 24 W. R. 782 369 Browne v. Collins (1871), L. R. 12 Eq. 580 224 V. Cross (1851), 14 Beav. 105 ; 92 R. R. 48 495 v. Kenyon (Lord) (1818), 3 Madd. 410 ; 18 R. R. 201 . . .170 Browne's Will, //e (1859), 27 Reav. 324 ; 122 R. R. 412 . . . .357 Brumridge r. Brumridge (1858), 27 Heav. 5 ; 122 R. R. 297 . . .499 Bryant, Re, lirvant v. Hickley, [1894] 1 Ch. 324 ; 63 L. J. Ch. 197; 70 L. T. 301 ; '42 W. R. 183 ; 8 U. 33 328, 329, 350 Table of Cases. xxxvii PAGE Bryant and Barninpham's Contract, lir (1890), 44 Cli. D. 218 ; 59 L. J. Ch. (536 ; (•)3 L. T. 20 : 8S \V. K. -UV.) 217, 335 Brydges r. Brydiccs (17:)C)), 3 Vus. .hill. ]2;i 119 Bubb t). Padvvick (18S0), 13 Ch. D. 517 ; 49 L. J. Ch. 17,S ; 42 L. T. 110 ; 28 W. K. 382 356 Buchanan v. Hamilton (1801), 5 Ves. 722 ....... 373 Buckeridge v. Glasse (1841), Cr. & Ph. 126 ; 10 \j. J. Ch. 134 ; .5 Jur. 163 ; 54 E. K. 241 14), 2 Drew. 227 : 2 Eq. R. 351 ; 23 L. J. Ch. 487 ; 18 Jur. 782 : 2 W. K. 313 ; 100 R. R. 101 278 Cafe r. Bent (1845), 5 Hare, 24 ; !) Jur. 653 ; 71 R. R. 17 . . . . 232 Calvin's Case (l(i(.>8), 7 Rep. 1 1*1 Cambridge v. Rous (1802), 8 Ves. 12 ; 6 R. R. 199 73 Camden (Marquis) v. Murray (1880), 16 Ch. D. 161 ; 50 L. J. Ch. 282 ; 43 L. T. 661 ; 29 W. R. 190 329 Cameron, Re, Nixon r. Cameron (1884), 26 Ch. D. 19 ; 53 L. J. Ch. 1139 ; 50 L. T. 33!l ; 32 W. R. 834 194 and Wells, lie (1887), 37 Ch. D. 32 54 Camoys (Lord) v. Best (1854), 19 Beav. 414 378 Campbell, lie, Campbell r. Campbell, [18931 3 Ch. 468 ; 62 L. J. Ch.878 ; 69 L. T. 134 318 r. Bainbridge (1868), L. R. 6 Eq. 269 : 37 L. J. Ch. 634 ; 19 L. T. (X. S.) 254 ; 17 W. R. 5 433 r. Walker (1800). 5 Ves. 678 ; 5 R. R. 135 . . . 265, 319, 320 Cann>beirs Policies, lie (1877), 6 Ch. D. 686 139 Candler r. Tillett (1855), 22 Beav. 257 ; 25 L. .1. Ch. 505 ; 4 W. R. 160 ; 111 R. R. 351 268.304 Cann r. Cann (1884), 51 L. T. 770 ; 33 W. R. 40 .... 268,305 Capell V. Winter, [1907] 2 Ch. 376 ; 76 L. J. Ch. 496 ; 97 L. T. 207 ; 23 T. L. R. 618 519, 527 Caplin, Re (1865), 2 Dr. A: Sm. ,527 ; .34 L. J. Ch. 578 ; 6 N. R. 17 ; 11 .lur. (N. s.) 383 : 12 L. T. (N. s.) 526 : 13 W. R. 646 .... 21 Carberry r. M'Carthy (1881). 7 L. R. Ir. 328 22 Carew r. Cooper (1864), 10 Jur. (N. s.) 429 : 12 W. R. 7(;7 .... 59 Carlyon, Re, Carlyon r. Carlyon (1886), 35 W. R. 155 ; 56 L. J. Ch. 219 ; 56 L. T. 151 449 r. Truscott (187.5), L. R. 20 Eq. 348 : 44 L. J. Ch. 186 ; 32 L. T. (N. S.) 50 ; 23 W. R. 302 200,217 Carpenter, Re (1854), Kay. 418 ; 101 R. R. 687 391 Carr, i?^, Carr r. Carr (1888), 36 W. R. 688 308 r. Living (1860), 28 Beav. 644 : 126 R. R. 276 68 Can's Trusts, Re, Carr r. Carr, [1904] 1 Ch. 792 ; 73 L. J. Ch. 459 ; 90 li. T. 592 ; 52 W. R. 595 443 Carrick r. Errington (1726), 2 P. Wms. 361 159 Carroll, Re, Brice r. Carroll, ri902] 2 Ch. 175 ; 71 L. J. Ch. 596 ; 86 L. T. 862 ; 50 W. R. 650 521 r. Graham, [1905] 1 Ch. 478 ; 74 L. J. Ch. 398 ; 92 L. T. *i^j ; 53 W. R. 549 435 Carruthers r. Carruthers, [1896] A. C. 659 293,308 r. Peake(1911), 55 Sol. J. 291 Ill Carson r. Sioane (1884), 13 L. R. Ir. 139 514 Carter, ifc( 1892). 41 W. R. 140 237 V. Carter (1857), 3 Kay & .1. 617 ; 27 L. .J. Ch. 74 ; 4 Jur. (N. s.) 63 ; 112 R. R. 308 .528 c. (1S69), L. R. 8 E(i. 551 ; 39 L. J. Ch. 268 ; 21 L. T. (X. s.) 194 139 r. . [1896] 1 Ch. 62 ; 65 J>. J. Ch. 86 ; 73 L. T. 437 ; 44 W. K. 73 ; 13 R. 824 38 r. Sebright (1H59), 26 Beav. 374 ; 28 L. J. Ch. 411:5 Jur. (N. s.) 2.59 : 7 W. R. 225 : 122 R. R. 145 429 Cartwright, Re, Avis v. Xewman (1S89). 41 Ch. 1). 532 ; 5,s L. J. Ch. 590 ; 60 L. T. H91 ; 37 W. R. 612 2.";2 /■. Cartwright (1H53). 3 De (i. M. i: G. 982 ; 22 !.. J. Ch. 841 ; 17 Jur. .584; 1 W. R. 245 60 Ca.se r. James (1861), 3 De (J. F. .t J. 256 ; 30 L. J. Ch. 749 ; 7 Jur. (N.S.) 869 ; 4 L. T. (n, s.) 664 ; 9 \V. H. 771 525 Table of Cases. xxxix PAOK Castell and Brown, Ltd., i?), I c;h. L). 279 ; 24 W. R. 20 1 .... 368 Christophers v. White (1847), 10 i?eav. 523 ; 76 R. R. 191 .... 313 Churcher v. Martin (1889), 42 Ch. D. 312 ; 58 L. J. Ch. 586 : 61 I.. T. 113; .37 W. R. 682 490 xl Table of Cases. PAGE Churchill. Re Hiscock i-. Loder, [1909] 2 Ch. 431 : 79 L. J. Ch. 10 ; 101 L. T. 380 ; 53 Sol. J. 697 352 V. Denny (1875). L. R. 20 Eq. 534 : 44 L. J. Ch. 578 ; 23 W. R. 825 . . . . . . . 134 Clack r. Carlon (1861), 30 L. J. Ch. 639 ; 7 Jur. (X. S.) 441 : 9 W. R. 568 ; 4 L. T. (N. 8.) 361 ; 126 R. R. 830 313 V. Holland (1854). 19 Beav. 262 ; 24 L. J. Ch. 13 ; 18 Jur. 1007 ; 2 W. R. 402 : 105 R. R. 134 260, 436 Clare. Re, Clare r. Clare (1882), 21 Ch. D. 865 ; 51 L. J. Ch. 553 ; 46 L. T. 851 ; 30 W'. R. 789 439 Clark V. Girdwood (1877). 7 Ch. D. 9 ; 37 L. T. 614 ; 25 W. R. 575 . 92 r. Hoskins (1868), 37 L. J. Ch. 561 ; 19 L. T. (x. s.) 331 ; 16 W. R. 11.59 269 V. Malpas (1862), 31 Beav. 80 ; 4 De G. F. k J. 401 ; 8 Jur. (N. s.) 734 : 10 W. R. 676 96 Clarke, Rp, Coombe i-. Carter (1887), 36 Ch. D. 348 ; 56 L. J. Ch. 981 ; 57 L. T. 823 ; 36 W. R. 293 35, 56 r. Franklin (18.58), 4 Kay & .J. 257 ; 27 L. .J. Ch. 567 ; 6 W. R. 836 ; 116R. R.325 167,172,173 r. Ramuz. [1891] 2 Q. B. 456 ; 6U L. J. Q. B. 679 ; 56 J. P. 5 . . 180 t-. Swaile (1762), 2 Eden, 134 322 r. Writiht (1861), 6 H. & N. 849 : 30 L. J. Ex. 113 ; 4 L. T. (N. s.) 21 ; 9 W. R. 571 ; 7 Jur. (k. S.) 1032 : 123 R. R. 879 . . . . 54 Clarke's Settlement. Re, [1902] 2 Ch. 327 ; 71 L. J. Ch. 593 ; 86 L. T. 653 ; 50 \V. R. 585 : 18 T. L. R. 610 255 Trusts. Re (1882), 21 Ch. D. 748 ; 51 L. J. Ch. 855 ; 47 L. T. 43 ; 30 W. R. 778 135 Clark^on v. Robinson, [1900] 2 Ch. 722 ; 69 L. J. Ch. 859 ; 83 L. T. 164 ; 48 W. R. 698 313 Clay V. Rufford (1852), 5 De G. & Sm. 768 ; 90 R. R. 229 . . . . 265 Clegg r. Edmonson (1857), 3 Jur. (n.s.) 299 ; 26 L.J. Ch. 673 ; 8 De G. il. & G. 787 ; 114 R. R. 336 496 V. Fishwick (1849). 1 Mac. & G. 294 ; 19 L. J. Ch. 49 ; 13 Jur. 993 ; 1 Hall & Tw. 396 ; 84 R. R. 61 177 r. Rowland (1866), L. R. 2 Eq. 160 ; 35 L. J. Ch. 396 ; 14 L. T. (N. S.)217 : 14 W. R. 530 332 Clements, Re. Clements r. Pearsall. ri894] 1 Ch. 665 ; 63 L. J. Ch. 326 ; 70 L. T. 682 : 42 W. R. 374 353 Clergv Orphan Corporation. Re (1874), L. R. 18 Eq. 280 ; 30 L. T. (N. b.) 809 : 22 W. R. 789 271 Cleveland (Duke of). Re. Hay v. Wolmer, [1895] 2 Ch. 542 ; 65 L. J. Ch. 29 ; 73 L. T. 313 ; 13 R."715 234,242,243 Clinton's Trust. Re. (1872), L. R. 13 Eq. 295 ; 41 L. J. Ch. 191 ; 26 L. T. (N.S.) 159; 20 \V. R. 326 142 Clive r. Carew (1859). 1 -Johns. & H. 199 ; 28 L. J. Ch. 685 ; 5 Jur. (>'. S.) 487 ; 7 \Y. R. 433 ; 128 R. R. 322 508 Clough V. Bond (lS38j. 3 Mvl. & Cr. 490 ; 8 L. J. (x. s.) Ch. 51 ; 2 Jur. 9.58; 45 R. R. 314 .... 292,293,307,309,460,468 i: Dixon (1841), 10 Sim. .564 366 r. Samuel. [1905] A. C. 442 ; 74 L. J. K. B. 918 ; 93 L. T. 491 ; 54 W. R. 114; 21 T. L. R. 702; 12 Manson, 1 . 35,57,101,103,108, 113 Cloutte V. Storev, [1911] 1 Ch. 18 ; 103 L. T. 617 . . . 291, 525 Clowes f. Billiard (1876), 4 Ch. D. 413 ; 46 L. J. Ch. 271 ; 25 W. R. 224 476 Clutterbuck's Settlement, Re, Bloxam v. Clutterbuck, [1905] 1 Ch. 200; 73 L.J. Ch. 698; 53 W. R. 10 134 Coaks, Re, Coaks v. Bayley. [1911] 1 Ch. 171 ; 80 L. J. Ch. 136; 103 L. T. 799 516 Coard r. Holdernes.se (1855;, 2U Beav. 147 : 24 L. J. Ch. 38S ; 1 Jur. (M.S.) 316 ; 3 W. R. 311 ; 109R. R. 378 151 Coates to Parsons. Re (1886), 34 Ch. D. 370 ; 56 L. J. Ch. 242 ; 56 L. T. 16 ; 35 W. R. 375 378, 382 Cochrane v. Moore (1890). 25 Q. B. D. 57 ; 59 L. J. g. 1!. 377 ; 63 L. T. 153 : 38 W. R. 588 ; 54 J. P. 804 45 Cock r. Goodfellow (1722). 10 Mod. 489 27i;, 278 Table of Cases. xli PA OK Cockburn v. EdwarJs (1881), 18 Ch. D. 449 ; 51 L. J. Ch. 4G ; 45 L. T. 500 ; 30 W. R. 446 322 V. Feel (18G1), 3 De G. F. k J. 170 : 30 L. J. Cli. 57o; 4 L. T. (N. S.) 571 ; 7 Jur. (n. s.) 810 ; !) W. R. 725 .... 280, 281 Cockcroft v. SutclifFe (1856), 25 L. J. Ch. 313 ; 2 .Jur. (x. s.) 323 ; 4 W. R. 339 ; 105 R. R. 281 433 Cocker v. Quayle (1830). 1 Russ. k Jlyl. 535 ; 32 R. R. 275 . 245, 278, 291 Cockerell v. Cholmelej' (1830), 1 Russ. & Myl. 418 ... . 492, 493 Cocksedge v. Cocksedge (1844), 14 Sim. 244 ; 13 L. J. Ch. 381 ; 8 Jur. 659. 935 ; 65 R. R. 574 60, 61 Cogan 1-. Duffield (1876), 2 Ch. D. 41 ; 45 L. J. Ch. 307 ; 34 L. T. (N. S.) 593 ; 24 W. R. 905 120, 124, 125 V. Stephens (183.5), 5 L. J. (x. s.) Ch. 17 ; 42 R. R. 258 . . 167, 172 Coggs V. Bernard (1703), 2 Lord Raymond, 909 ; 1 Sm. Lead. Cas. (11th ed.) 173 3 Coghlan. Be. Broughton r. Broughton, [1894] 3 Ch. 76 ; 63 L.J. Ch. 671 ; 71 L. T. 186 ; 42 W. R. 364 ; 8 R. 384 139 Cogswell i: Cogswell (1834), 2 Edw. Ch. 231 252 Cohen's Executors and London County Council, Re. [19021 1 Ch. 187 ; 71 L. J. Ch. 164; 86L. T. 73; 50 W. R. 117 . ' 366 Colchester Corporation r. Lowten (1813). 1 Yes. k B. 226 ; 12 K. R. 216 90 Cole V. Muddle (1852). 10 Hare. ISO : 22 L. J. Ch. 401 ; 16 Jur. 853 ; 20 L. T. (0. S.) 107 ; 90 R. R. 332 514 Coleman, Re, Henry v. Strong (1888), 39 Ch. D. 443 ; 58 L. J. Ch. 226 ; 60 L. T. 127 290. 357, 362 V. Bucks and Oxon Union Bank, [1897] 2 Ch. 243 ; 66 L. J. Ch. 564 ; 76 L. T. 684 ; 45 W. R. 616 475, 520 Coleridge's (Lord) Settlement, Re, [1895] 2 Ch. 704 ; 73 L. T. 2u6 : 44 W. R. 59 ; 13 R. 767 275 Coles V. Coles. [1901] 1 Ch. 711 : 70 L. J. Ch. 324 ; 84 L. T. 142 . . 136 V. Trecothick (1804). 9 Ves. 234 ; 1 Smith. 233 ; 7 R. R. 167 . 315. 322 Colgan, Re (1881), 19 Ch. D. 305 ; 51 L. J. Ch. 180 ; 46 L. T. 152 ; 30 W. R. 266 333 Collier v. M'Bean (1865). 34 Bear. 426 ; 34 L. J. Ch. 555 ; 11 Jur. (x. s.) 592 ; 12 L. T. (N. s.) 790 ; 13 W. R. 766 ; 6 N. R. 192 . . 528 V. Walters (1873). L. R. 17 Eq. 252 ; 43 L. J. Ch. 216 ; 29 L. T. (X. S.) 868 ; 22 W. R. 209 202 Collings V. Wade, [1903] llr. R. 89 502 CoUins. Re, Collins v. Collins (1886), 32 Ch. D. 229 ; 55 L. J. Ch. 672 ; 55 L. T. 21 ; 34 W. R. 650 ; 50 J. P. 821 ,. . 220, 333. 349 V. Carey (1839), 2 Beav. 128 ; 50 R. R. 124 313 V. Collins (1833), 2 Mvl. k K. 703 ; 39 R. R. 337 . . . . 232 V. (1862), 31 Beav. 346 180 V. Vining (1837). C. P. Coop. 472 ; 46 R. R. 144 ... . 329 Collinson v. Pattrick (1838), 2 Keen, 123 ; 7 L. J. (n. s.) Ch. b3 ; 44 R. R. 207 41 Collyer v. Isaacs (1881), 19 Ch. D. 342 ; 51 L. J. Ch. 14 ; 45 L. T. 5ii7 ; 30 W. R. 70 55. 56, 57, 101 Colmore v. Tyndall (1828). 2 Y. & J. 605 : 31 R. R. 637 . . 196, 198, 199 Colombine v. Penhall (1853), 1 Sm. k G. 228 ; 96 R. R. 391 .. . 108 Colyear v. Lady Mulgrave (1836), 2 Keen. 81 ; 5 L. J. (N. s.) Ch. 335 ; 44 R. R. 191 48 Combs. Re (1884). 51 L. T. 45 404 Comiskey v. Bowrin^-Hanbury, [1905] A. C. 84 ; 74 L. J. Ch. 263 ; 92 L. T. 241 ; 53 W. R. 402 ; 21 T. L. R. 252 . . . . 24, 25, 30 Conolly. Re, Conolly v. Conollv, [1910] 1 Ch. 219 ; 79 L. J. Ch. 148 ; 101 L. T. 783 : 26 T. L. R. 189 24 Consterdine r. Consterdine (1862), 31 Beav. 330 : 31 L. J. Ch. 807 ; 8 Jur. (x. s.) 906 ; 7 L. T. (N. S.) 122 ; 10 W. R. 727 . . • • 307, 308 Conway v. Fenton (1888), 40 Ch. D. 512 : 58 L. J. Ch. 282 ; 59 L. T. 928 ; 37 W. R. 156 253 Conybeare's Settlement, Ux parte (1853), 1 W. R. 458 ; 94 K. R. 8^7 . 393 Conyngham v. Conrngham (1750), 1 Yes. Sen. 522 191 Cook V. Addison (1869). L. R. 7 Eq. 466 ; 38 L. J. Ch. 322 ; 20 L. T. (N. S.) 212 : 17 W. R. 480 -172. 476 xlii Table of Cases. TAOE Cook r. Hutchinson (1836), 1 Keen. 42 ; 44 R. R. 11 I."i0 Cook's Mortgage, Jtr, Lawledire v. Tvndall, [1896] 1 Ch. 'J-2d ; 65 L. J. Cb. 654 ; 74 L. T. 652 ; 44 W. R. 646 182 Cooke, JEx parte. Be Strachan (1876), 4 Ch. D. 123 ; 46 L. J. Bk. 52 ; 35 L. T. 649 ; 25 W. R. 171 184, 472 V. Crawford (1842), 13 Sim. 91 ; 11 1.. J. Ch. 406 ; 6 Jur. 723 ; 60 R. R. 303 370, 371, 372 r. Fuller (1858). 26 Bcav. 99 : 122 R. R. 43 . . . . 357, 361 r. Laraotte (1851), 15 Beav. 234 ; 21 L. J. Ch. 371 ; 92 R. R. 397 . 93 Cooke"s Contract, He (1877), 4 Ch. D. 454 365 Cookson V. Lee (1853). 23 L. J. Ch. 473 319 V. Reay (1842), 5 Beav. 22 358 Coombes r. Brookes (1871), L. R. 12 Eq. 61 ; 41 L. J. Ch. 114 ; 25 L. T. (K. S.) 198 ; 19 W. R. 1002 389 Cooperr. Kynock (1872), L. R. 7 Ch. 398; 41 L. J. Ch. 296; 26 L. T. (N. s.) 566 ; 20 W. R. 503 196, 198 V. Macdonald (1877), 7 Ch. D. 288 ; 47 L. J. Ch. 373 ; 38 L. T. 191 ; 26 W. R. 377 363 and Allen to Harlech's Contract, He (1876), 4 Ch. D. 802 ; 4(; L. J. Ch. 133 ; 35 L. T. 890 ; 25 W. R. 301 . . 264, 265, 298. 304, 342, 343, 361 Copland's Settlement, Re, Johns v. Carden, [1900] 1 Ch. 326 ; 69 L. J. Ch. 240 ; 82 L. T. 194 247, 250 Coppring r. Cooke (1684), 1 Yern. 270 181 Cordal's Case (1594). Cro.Eliz. 316 197,200 Cordwell v. Mackrill (1766), Ambl. 515 ; 2 Eden, 344 .... 520 Cornish, lie. L> jnirfe Board of Trade, [1896] 1 Q. B. 99; 65 L. J. Q. B. 106 ; 73 L. T. 602 ; 44 W. R. 161 ; 3 Manson, 48 .... 484 Cornmell t: Keith (1876), 3 Ch. D. 767 ; 45 L. J. Ch. 689 ; 35 L. T. 29 ; 24 W. R. 633 35, 138 Cornthwaite v. Frith (1851), 4 Do G. & Sm. 552 ; 87 R. R. 471 . . . 36 Corsellis, lie, Lawton r. Elwes (1887), 34 Ch. D. 675 ; 56 L. J. Ch. 294 ; 56 L. T. 411 ; 35 W. R. 309 ; 51 J. P. 597 . . . 312, 313, 314, 317 Corwick v. Pearce (1848), 7 Hare, 477 ; 12 Jur. 997 ; 82 R. R. 194 . . 336 Cory i: Gertcken (1816), 2 Madd. 40 ; 17 R. R. 180 496 Costabadie i: Costabadie (1847), 6 Hare, 410 ; 16 L. J. Ch. 259 ; 11 Jur. 345 ; 77 R. R. 166 328 Costello r. O'Rorke (1869), 3 Ir. Eq. R. 172 Cotham v. West (1839), 1 Beav. 381 ; 49 R. R. 389 ... Cothay v. Sydenham (1788), 2 Bro. C. C. 391 Cottam V. Eastern Counties Rail. Co. (1860), 1 Joluis. .^ H. 213 ; 30 Ch. 217; 6 Jur. (N.s.) 1.367; 3 L. T. (N. S.) 465 ; 9 \V. R. 94 ; R. R. 346 Cotterill's Trusts, ^<', [1869] W. X. 1 S3 Cottington 1-. Fletcher (1740), 2 Atk. 155 Cotton, lie (1875), 1 Ch. D. 232 ; 45 L. J. Ch. 201 ; 33 L. T. (n. (^.) 720 ; 24 W. R. 243 348 Cotton's Trustees and London School Board, lie (1882), 19 Ch. D. ('>24 ; 51 L. J. Ch. 514 ; 46 L. T. 813 ; 30 W. R. 610 . . . . 356, 358, 359 Coulson, Be (1857), 4 Jur. (x. s.) 6 443 Coulson's Trusts, Be, Prichard i: Coulson (1907), 97 L. T. 754 . . ,182 Courtier, Be, Coles r. Courtier (1886), 34 Ch. D, 136 ; 56 L. J. Ch. 350 ; 55 L. T. 574 ; 35 W. R. 85 ; 51 J. P. 117 . 246, 253, 254, 269, 328, 329, 330 Coutta r. Ackworth (1869), L. R. 8 Eq. 558 ; 38 L. J. Ch. 694; 21 L. T. (N.s.) 224 ; 17 W. R. 1121 94,95 Coventry v. Coventry (1837), 1 Keen, 758 ; 6 L. J. (N. S.) Ch. 275 ; 45 R. R. 169 375 Coverdale r. Eastwood (1H72), L. R. 15 Eq. 121 : 42 L. J. Ch. 118; 27 L. T. (N. .«.) 64(1: 21 W. R. 216 35 Cowell r. Gatcombe (18.".9), 27;Bcav. .568: 122 R. R. .".31 .... 292 Cowin, Jie, Cowin r. Gravett'(188(;j, 33 Ch. I>. 179 ; 56 L. .1. Ch. 78 ; 34 W. R. 735 323 Cowley, Be, Souch v. Cowley (18S5), 53 L. T. 494 .... 31, 33 ■ (Earl) V. Wellesley (1866), L. R. 1 Eq . 656 ; 35 P.eav. 635; 14 L. T. (N.s.) 425 ; 14 W. R. 528 256 Cowman v. Harrison (1852), 10 flare, 234 ; 22 L. J. Ch. 993 ; 17 Jur. 313; 1 W. R. 96; 90 R. R.35(; 18 223 328, 333 287 L. J. 128 309 384 155 Table of Cases. xliii TAOK Cowper r. Stonchnm (1893), fiS L. T. IS; 3 R. 212 . . 4r,S, 4G9, .110, 511 Cowper-8mith r. Anstcy, [1877] W. N. 28 142 Cowx V. Foster (]8f)0), 1 Johns. & H. 30 ; 29 L. .J. Ch. 886 ; G Jur. (N. s.) lOol ; 2 L. T. (N.S.)7'J7 ; 128R. 11. 2.-)0 427 Cox V. Cox (18(;9), L. K. 8 Eq. 343 ; 38 L. J. Ch. 5G9 ; 17 W. K. 790 245 r. Page (1852), 10 Hare, 1G3 ' 15 Crabb v. Crabb (1834), 1 Myl. & K. 511 ; 3 L. J. (n. s.) Ch. 181 ; 3G R. R' 3G2 ' IGl Cratlock v. Owen (1854), 2 Sm. &; Q. 241 ; 3 Eq. Rep. 381 ; 2 W. R. 319'. ..208 V. Piper (1850), 1 Mac. & G. 664 ; 1 Hall & Tw. G17 ; 19 L. J. Ch. 107 ; 14 Jur. 97 ; 84 R. R. 223 314 Craven r, Brady (1869), L. R. 4 Ch. 29(1 ; 38 L. J. Ch. 345 ; 17 \V. R. 505 GO t'.Craddock, [1868] W. N. 229 215 (.. (18(i9), 20 L. T. (N.s.) 638 ; [1869] W. N. 48 . . 215 Crawford v. Forshaw (1890), 43 Ch. D. 643 ; 59 L. J.Ch.348 ; 62 L. T. 63 ; 38 W. R. 412 190 V. , [1891] 2 Ch. 2G1 ; 60 L. J. Ch. 683 ; 65 L. '!'. 32 ; 3!) W. R. 484 24, 366 Crawshay, Be, Dennis i\ Crawshay (1888), 60 L. T. 357 . . . . 218 Creaton v. Creaton (1856), 3 Sin.&: G. 386 ; 26 L. J. Ch. 266 ; 2 Jur.(x. s.) 1223 ; 5 W. R. 123 ; 107 R. R. 120 195 Cresswell v. Dewell (1863), 4 Giff. 46U ; 3 N. R. 148 ; 10 Jur. (X.s.) 354 ; 10 L. T. (N. s.) 22 ; 12 VV. R. 123 492 Crichton v. Crichton, [1895] 2 Ch. 853 ; 65 L. J. Ch. 13 ; 73 L. T. 556 ; 13 N. R. 770 ; 44: W. R. 203 ; 59 J. P. 792 . 493, 498 V. , [1896] 1 Ch. 870 ; 65 L. J. Ch. 491 ; 74 L. T. 357 . 498 Crockett V. Crockett (1848), 2 Ph. 553 ; 17 L. J. Ch. 2.30 ; 12 Jur. 234 ; 78 R. R. 183 34 Croft r. Adam (1842), 12 Sim. 639; 11 L. J. Ch. 386; 6 Jur. 522; 56 R. R. 128 21 Crofton V. Ormsby (1806), 2 Sch. & Lef. 583 ; 9 R. R. 107 . . . . 52 Crompton and Evans' Union Bank v. Burton, [1895] 2 Ch. 711 ; 64 L. J. Ch. 811 ; 73 L. T. 181 ; 44 W. R. 60 ; 13 R. 792 . . . . 478, 479 Croomei). Croome(1889), 61 L. T. 814 151,153 Cropton V. Davies (1869), L. R. 4 C. P. 159 200 Crosby v. Church (1841), 3 Beav. 485 ; 10 L. J. Ch. 212 ; 5 Jur. 50 ; 52 R. R. 196 508 Cross, Be, Harston r. Teaison (1882), 20 Ch. D. 109 ; 51 L. J. Ch. 645 ; 45 L. T. 777 ; 30 W. R. 376 495 Crosslev v. Elsvvorthy (1871), L. R. 12 Eq. 158 ; 40 L. J. Ch. 480 ; 24 L. T. (N.'s.) 607 ; 19 W. R. 842 106 Crouch r. Credit Foncier of England (1873), L. R. 8 Q. B. 374 ; 42 L. J. Q. B. 183 ; 29 L. T. (N.s.) 259 ; 21 W. R. 946 519 Crowe's Trusts (No. 2), Be (1880), 14 Ch. D. 610 ; 42 L. T. 822 ; 28 W. R. 885 391,402 Crowther, Be, Midgley r. Crowther, [1895] 2 Ch. 56 ; 64 L. J. Ch. 537 ; 72 L. T. 762 ; 43 W. R. 571 ; 13 R. 496 . . 232, 236, 237 V. Elgood (1887), 34 Ch. D. 691 ; 56 L. J. Ch. 416 ; 56 L. T.415 ; 35 W. R. 369 183, 184 Croxton v. May (1878), 9 Ch. D. 388 ; 39 L. T.461 ; 27 W. R. 327 . . 360 Crozier c. Crozier (1873), L. R. 15 Eq. 282 ; 21 W. R. 398 . . . .170 Crunden and Meux's Contract, Be, [1909] 1 Ch. 690 ; 78 L. J. Ch. 3'.I6 ; 100 L. T. 472 367, 370, 372 Cull's Trusts, Be (1875), L. R. 20 Eq. 561 ; 44 L. J. Ch. 664 : 32 L. T. (x. s.) 8.53 ; 23 W. R. 850 289, 432, 433. 443, 444 Cummins v. Cummins (184.5), 3 Jo.& Lat.64 ; 8 Ir. E(i. R. 723 ; 72 11. R. 29.. .276 Cunard, Be (1878), 27 W. R. 52 ; 48 L. J. Ch. 192 .... 384, 394 Cunliffe v. Brancker (1876), 3 Ch. D. 393 ; 46 L. J. Ch. 128 ; 35 L. T. 578.. .199 Cunnack v. Edwards, [1896] 2 Ch. <)79 ; 65 L. J. Ch. 801 ; 75 L. T. 122 ; 45 W. R. 99 154, 208 Cunningham r. Foot (1.S78), 3 App. Cas. !)74 ; 3S L. T. 889 ; 26 W. R. 859.. .8, 31,149.490 and Bradley to Wilson, [1877] W. N. 258 . . . . 384 Fravling, /^c, [1891] 2 Ch. 567; 60 L. J. Ch. 591 ; 61 L. T. 558 ; 39 W.'R. 469 '^'^^^ '^'''^ Cupit V. Jackson (1824), 13 Pr. 721 ; McClel. 495 ; 28 R. R. 735 . . 338 xliv Table of Cases. PAGE Curnick r. Tucker (187i), L. R. 17 Eq. 320 25,27 Currant r. Jago (18M), 1 Coll. C. C. 2(31 ; 8 Jur. 010 ; 0(5 K. 11. G3 . 160, 165 Currey, He. Gibson r. War (ISSi;). 32 Ch. D. 3t;i : 55 L. J. Ch. 906 ; 54 L. T. 605 ; 34 W. R. 541 IS.i Currie, E^ (1878), 10 Ch. D. 93 : 40 L. T. llu : 27 W. K. 309 . . .404 r. Xind (1836), 1 Myl. ic Cr. 17 : 5 L. J. (N. s.) Ch. 169 . . .114 Cartels, lie (1872), L. R. 14 Eq. 217 ; 41 L.J.Ch. 631 ; 26 L. T. (N. s.) 803...160, 163 r. Wormald (1878), 10 Ch. D. 172 ; 40 L. T. lOS ; 27 W. R. 419. ..166, 167, 171, 172 Curtis r. Perry (1802), 6 Yes. 739 ; 6 R. R. 28 155 T. Price (180.5), 12 Ves. 89 : 8 R. R. 303 196, 198 r. Rippon (1820), 5 Madd. 434 ; 21 R. R. 327 18 Cusack r. Cusack (1714), 5 Bro. P. C, Toml. ed. 110 123 Custis"s Trusts, He (1871), 5 Ir. R. Eq. 429 394 D. Dacre v. Patrickson (1800), 1 Drew. & Sm. 184 ; 29 L. J. Ch. 846 ; 6 Jur. (N.s.) 863 ; 8 W. R. 597, 647 ; 2 L. T. (N. s.) 764 ; 127 R. R. 69 . . 208 D'Adhemar (\''iscountess) r. Bertrand (1865), 35 Beav. 19 . . . .389 Dale k Co., Ex parte. Re West of Eni^land and South Wales District Bank, (1879), 11 Ch. D. 772 ; 48 L. J. Ch. 600 ; 40 L. T. 712 ; 27 W. R. 815 474 Dale and Elsden, i^6, [1892] W. N. 50 103 Dalgleish's Settlement, Re (1876), 4 Ch. D. 143 ; 3.3 L. T. 829 ; 2.3 W. R. 122. ..391, 402 D'Almaine v. Moseley (18.33), 1 Drew. 629 ; 22 L. .J. Ch. 971 ; 17 Jur. 872 ; 1 W. R. 475 : 1 Eq. R. 2.32 ; 21 L. T. (O. S.) 297 ; 94 R. R. 782 . . 151 Daly V. Beckett (1857). 24 Beav. 114 ; 3 Jur. (n.s.) 754 ; 5 W. R. 514 ; 116 R. R. 55 332 Dance v. Goldingham (1873), L. R. 8 Ch. 902 ; 42 L. J. Ch. 777 ; 29 L. T. (N. S.) 166 ; 21 W. R. 761 204, 476, 478 Dangar's Trusts, Re (1889), 41 Ch. D. 178 : 58 L. J. Ch. 315 ; 60 L. T. 491 ; 37 W. R. 651 513 D'Andbau. i^, Andrews v. Andrews (1880), 15 Ch. D. 228 ; 49 L. J. Ch. 756 ; 43 L. T. 135 ; 28 W. R. 930 38, 52, 53 Daniel r. Warren (1843), 2 Y. & Coll. C. C. 290 ; 7 Jur. 462 ; 60 R. R. 148.. .232 Daniel's Settlement, Re, (1875), 1 Ch. D. 375 ; 45 L. J. Ch. 105 ; 34 L. T. (N. S.) 308 ; 24 W. R. 227 92 Danson, Re (1899), 48 W. R. 73 373, 387, 390, 391 Darke v. Martyn (1839), 1 Beav. 525 ; 49 R. R. 433 305 Darnley (Earl of). Re, Clifton v. Darnley, [1907] 1 Ch. 159 ; 76 L. J. Ch. 58 ; 95 L. T. 700 ; 23 T. L. R. 93 234, 239 Dartnall. i?f. Sawyer v. Goddard, [1895] 1 Ch. 474 ; 04 L. J. Ch. 341 : 72 L. T. 404 ; 43 W. R. 044 ; 12 R. 237 325 Darvill v. Terry (1861), 6 H. & N. 807 ; 30 L. J. Ex. 355 ; 123 R. R. 845 . 114 Daubenyr. Cockburn (1816), 1 Mer. 626 ; 15 R. R. 174 . . . .114 Davenport v. Bishopp (1843), 2 Y. k Coll. C. C. 451 ; 12 L. J. Ch. 492 ; 7 Jur. 1077 ; 60 R. R. 234 39 r. (1846), 1 Hh. 698 ; 65 R. R. 483 .... 39 r. Coltman (1842), 12 Sim. 588 ; 11 L. J. Ch. 202 ; Jur. 381 ; 56 R. R. 112 173 V. Marshall, [1902] 1 Ch. 82 ; 71 L. .1. Ch. 29 ; So L. T. 340 ; 50 W. R. 39 139 Daveron, Re, Bowon v. Churchill, [1893J 3 Ch. 421 ; 03 L. J. Ch. 51 : Oil L. T. 752 ; 42 \V. R. 24 ; 3 R. 685 65. 358, 359 Davidson v. Kimptijn (1881), 18 Ch. D. 213 : 45 L. T. 132 ; 29 \V. R. 912. ..360 Davies, i;'xj?rtrf«?(1852), 16 Jur. 882 257 , Re, Davics r. Davies (1888), 38 Ch. D. 21u ; 57 L. J. Ch. 759 ; 58 L. T. 312; 30 W. R. 587 . . . . 449 , Re, V. , [1892] 3 Ch. 63 ; 61 L. J. Ch. 595 ; 07 L. T. 548 ; 41 W. R. 13 42 Table of Cases. xlv PAGE Davies Re, Ellis r. Roberts, [18:t8] 2 Ch. 112 ; 67 L.J.Ch. r>07 ; 71» 1,. T. 344...48fl c. Davies(ia41), 4 Beav. 54 ; 55 11. 11. 16 123 v. (1870), L. R. :) Eq. 468 ; 39 L. J. Ch. 313 ; 22 L. T. (x. s.) 505; 18\V. R. 634 1)3. 100 ?•. Hodgson (1858), 25 Beav. 177 ; 27 L. J. Ch. 449 ; 4 Jar. (x. s.) 252; 6 W. R. 355 ; 119 R. R. 379 288,195 r. Otty (1865), 35 Beav. 208 ; 34 L.J. Ch. 252 : 12 L. T. (n.r.) 789 ; 13 \V. R. 484 ; 5 N. R. 391 155, 158, 166 7'. Wescomb (1828), 2 Sim. 425 ; 29 R. R. 128 222 to Jones and Evans (1883), 24 Ch. D. 190; 52 L. J. Ch. 720; 49 L. T. 624 ; 32 W. R. 460 194 Davis, Rfi, Davis i\ Davis, [1902] 2 Ch. 314 ; 71 L. J. Ch. 539 ; 86 L. T. 523 ; 51 W. R. 8 464, 465, 466 , Re, Evans v. Mooie, [1891] 3 Ch. 119 : 61 L. J. Ch. 85 ; 65 L. T. 128; 39 W. R. 627 486 , Re, Muckalt v. Davis, [1887] W. N. 186 ; 57 L. J. Ch. 3 ; 57 L. T. 755 431 i: Anoel (1862), 10 W. R. 722 ; 4 De (1. F. & J. 524 ; 8 Jur. (\. s.) 1024 ; 6 L. T. (N. s.) 880 476 r. Hutchincfs, [1907] 1 Ch. 356 ; 76 L. J. Ch. 272 ; 96 L. T. 293 . 290 c. Marlborough (Dulce of) (1818), 1 Swans. 74 ; 2 Wils. Ch. 130 ; 53 R. R. 29' 58 Davis' Trusts, Re (1871), L. R. 12 Eq. 214 ; 40 L. J. Ch. 566; 19 W. R. 944 ............. 389 Dawes v. Tredwell (1881), 18 Ch. D. 354 ; 45 L. T. 119 ; 29 W. li. 793 '. 67, 131 Dawson, Re, Arathoon v. Dawson, [1906] 2 Ch. 211 ; 75 L. J. Ch. 604; 94 L. T. 817 ; 54 W. R. 556 248 V. Clarke (1811), 18 Ves. 247 ; 11 R. R. 188 . . . . 151, 498 V. Prince (1857), 2 De G. & J. 41 ; 27 L. J. Ch. 169 ; 4 Jur. (N. s.) 497 ; 6 W. R. 171 525 V. Small (1874), L. R. 18 Eq. 114 61 Dean, Re, Cooper-Dean v. Stevens (1889), 41 Ch. D. 552 ; 58 L.J.Ch. 693; 60 L. T. 813 61, 64, 76, 77 V. McDowell (1878), 8 Ch. D. 345 ; 47 L. J. Ch. 537 ; 38 L. T. 862 ; 26 W. R. 486 177 De Beauvoir v. De Beauvoir (1852), 3 H. L. Cas. 524; 6 Jur. 1147; 88 R. R. 191 174 De Bussche r. Alt (1878), 8 Ch. D. 286 ; 47 L. J. Ch. 381; 38 L. T. 370.. .320 De Clifford (Lord), Re, De Clifford v. Quilter, [1900] 2 Ch. 707 ; 69 L. J. Ch. 828 ; 83 L. T. 160 483 De Cordova v. De Cordova (1879), 4 App. Cas. 692 : 41 L. T. 43 . . 348 Deg r. Deg (1727), 2 P. Wms. 412 80 Dehaynin, Re, [1910] 1 Ch. 223 ; 79 L. J. Ch. 131 ; 101 L. T. 703 . . 402 De la Warr (Earl) Estates, Re (1881), 16 Ch. D. 587 ; 50 L. J. Ch. 383 ; 44 L. T. 56 ; 29 W. R. 350 247, 257 Delves v. Gray, [1902] 2 Ch. 606; 71 L. J. Ch. 808 ; 87 L. T. 425 ; 51 W. R. 56 320 r. Newington (1885), 52 L. T. 512 244 De Mestre v. West, [1891] A. C. 264 ; 60 L. J. P. C. 66 ; 64 L. T. 375 ; 55 J. P. 613 54 Dennis's Trusts, Re (1864), 12 W. R. 575 ; 10 L. T. (N. s.) 688 . . . 384 Dent V. Bennett (1839), 4 Myl. & Cr. 269 ; 8 L. J. (N. s.) Ch. 25 ; 3 Jur. 99 : 48 R. R. 94 93 i: Dent (1862), 30 Beav. 363 ; 31 L. J. Ch. 436 ; 8 Jur. (N. s.) 786 ; 10 W. R. 375 253 De Pothonier, Re, Dent t'. De Pothonier, [1900] 2 Ch. 529 ; 69 L. J. Ch. 773 ; 83 L. T. 220 268, 304 De Quetteville, Re, De Quetteville ?•. De Quetteville (1903), 19 T. L. R. 383 394, 455 De Ros' Trust, Re, Hardwicke v. Wilmot (1885), 31 Ch.D. 81 ; 55 L.J.Ch. 73 ; 53 L. T. 524 ; 34 W. R. 36 131 De Soyres v. De Soyres (1889), 87 L. T. Journal, 93 399 Despard, 7?.?, Hancock r. Despard (1901), 17 T. L. R. 478 .... 224 De Tabley, Re, Leighton v. Leighton (1896), 75 L. T. 328 ; [1896] W. N. 162 ....,,. 253, 254, 255 xlvi Table of Cases. PAGE De Teissier's Settled Estates, Re. De Teissier v. De Teissier, [1893] 1 Ch. 153 ; 62 L. J. Ch. 552 ; 68 L. T. 275 ; 41 W. R. 186 ; 3 R. Ill . 252, 253, 255 Dctmold, Re, Detmold v. Detmold (1889), 40 Ch. D. 585 ; 58 L.J. Ch. 495 ; 61 L. T. 21 ; 37 W. R. 442 68, 69, 107 Devaynes r. Robinson (1857), 24 Beav. 86 ; 27 L. J. Ch. 157 ; 116 R. R. 42. ..337 Deveiaux, iZ*-, Toovey f. Public Trustee (1911), 27 T. L. R. 574 . . . 411 Devey v. Thornton (1851) 9 Hare, 222 ; 22 L. J. Ch. 163 ; 89 E. R. 404... 258, 288, 291. 309 De Visme, Re (1863), 2 De G. J. & S. 17 ; 33 L. J. Ch. 332 ; 9 L. T. (n. s.) 668 ; 12 W. R. 140 163 Dewar, Re, Dewar v. Brooke (1885), 33 W. R. 497 ; 54 L. J. Ch. 830 ; 52 L. T. 489 300 Dewhirst's Trusts, Re (1886), 33 Ch. D. 416 ; 55 L. J, Ch. 842 ; 55 L. T. 427: 35 W. R. 147 391,402,404 De Witte v. Palin (1872), L. R. 14 Eci. 251 ; 26 L. T. (N.s.) 825 ; 20 W. R. 858 328 333 Dibbs f. Goren (1849), 11 Beav. 483 ; 83 R. R. 228 * 516 Dick, R^, Lopes r. Hume-Dick, [1891] 1 Ch. 423 ; 60 L. J. Ch. 177 : 64 L. T. 32 ; 39 W. R. 225 271, 273 Dickinson r. Dilhvyn (1869). L. R. 8 Eq. 546 ; 39 L. J. Cli. 266 ; 22 L. T. (X. s.) 647 ; 17 W. R. 1122 136,139,142 Dickinson's Trusts, J?^, [1902] W.N. 104 395 Diclconson v. Player (1838), C. P. Coop. 178 ; 2 Jur. 870 ; 46 R. R. 136 . 276 Dickson, Re, Hill v. Grant (1885), 29 Ch. D. 331 ; 54 L. J. Ch. 510 ; 52 L. T. 707 ; 33 W. R. 511 349 Diggles, Re, Gregory v. Edmondson (18S8), 39 Ch. D. 253 ; 59 L. T. 884... 16, 24, 27 Dimes r. Scott (1828), 4 Russ. 195 ; 28 R. R. 46 . . . 241, 470, 471 Dipple r. Corles (1853), 11 Hare, 183 ; 90 R. R. 633 .... 15, 38 Dive, Re, Dive«. Roebuck, [1909] 1 Ch. 328 ; 78 L. J. Ch. 248 ; lUO L. T. 190. ..282, 284 Dix V. Burford (1854), 19 Beav. 409 ; 105 R. R. 190 499 Dixon, Re, Dixon v. Charleswortli, [1903] 2 Ch. 458 ; 72 L. J. Cli. 642 ; 88 L. T. 862 ; 51 W. R. 652 60, 68 , Re, Heyncs v. Dixon, [1900] 2 Ch. 561 ; 69 L. J. Ch. 609 ; 83 L.T. 129 ; 48 W. R. 665 491, 513 V. Dixon (1878), 9 Ch. D. 587 ; 48 L. J. Ch. 592 ; 40 L. T. 208 ; 27 W. R. 282 509, 510 V. Gayfere (1853), 17 Beav. 421 ; 23 L. J. Ch. 60 . . . . 358 V. (No. 3) (185.5), 21 Beav. 118 ; 27 L. J. Cli. 148 ; 3 Jur. (N.s.) 1157 181 V. Olmius (1787), 1 Cox, 414 185 Dobson V. Land (1850), 8 Hare, 216 ; 85 R. R. 286 ... . 182, 268 Docker r. Somes (1834), 2 Myl. tV: K. 655 ; 3 L. J. (X. s.) Ch. 200 ; 39 R. R. 319. ..465 Docksey r. Docksey (1708), 2 Eii. Cas. Abr. 506 150 Docwra, Re, Docwra v. Faith (1885), 29 Ch. D. 693 ; 54 L. J. Ch. 1121 ; 53 L. T. 288 ; 33 W. R. 574 368 Dodds r. Hills (1865), 2 Hem. i: M. 424 ; 12 L. T. (N. s.) 139 . . .528 'C. Tuke (1884), 25 Ch. D. 617 ; 53 L. J. Ch. 598 ; 50 L. T. 320 ; 32 W. R. 424 429, 435 Dodkin i: Brunt (1868), L. R. 6 Eq. 580 389 Doe d. Hayter r. Joiuville (1802), 3 East, 172 ; 6 R. R. 585 . . .19 d. Willeyt'. Holmes (1798), 8 T. R. 1 33 d. Woodcock V. Barthrop (1814), 5 Taunt. 382 ; 1 Marsh, 90 ; 15 R. R. 530 201 r. Biggs (1809), 2 Taunt. 109 ; 11 R. R. 533 194 V. Bolton (1839), 11 Ad. & El. 188 ; 3 P. & D. 135 ; 52 R. R. 307 . 194, 1!»6, 201 V. Bottriell (1833), 5 B. & Ad. 131 ; 2 L. J. (x. s.) K. B. 158 ; 2 N.& M. 64; 39 R.R. 432 114 V. Cafe (18.52), 7 Ex. 675 ; 27 L. J. Ex. 219 ; 19 L. T. (0. s.) 144 ; 86 R. R. 790 199 V. Edlin (1836), 4 Ad. k El. 582; 5 L. J. (x. s.) K. B. 137; 43 R. R. 432 196, 201 V. Kwart (1838), 7 Ad. c. Blake (1804), 2 Sch. & Lef. 231 ; 9 R. R. 70 . . 188, 190, 258, 293 u. Cream, [1905] 1 Ir. R. 252 170 V. Foley (No. 1), [1903] 2 Ir. R. 95 513 Drake v. Trefusis (1875), L. R. 10 Ch. 364 : 33 L. T. (n. s.) 85 ; 23 W. R. 762 2.53 Drew V. Martin (1804), 2 Hem. & M. 130 ; 33 L. J. Ch. 307 ; 10 L. T. (N. s.) 291 ; 12 W. R. 547 ; 3 N. R. 637 ; 10 Jur. (n. s.) 356 . . . .160 Drinkwater v. Combe (1825), 2 Sim. & St. 340 ; 3 L. J. (o. s.) Ch. 178 ; 25 R. R. 210 182 Driver's Settlement, Re (1875), L. R. 19 Eq. 352 ; 23 W. R. 587 . 385, 389 Drosier v. Brereton (1851), 15 Beav. 221 ; 92 R. R. 388 .. . 282, 283, 460, 408 Druitt, Re, Druitt r. Dehler, [1903] I Ch. 446 ; 72 L. J. Ch. 441 ; 88 L. T. 483 ; 67 J. P. 99 ; 1 L. G. R. 353 ; 19 T. L. R. 269 . . . . 273 xlviii Table of Cases. PAGE Driimmoiul r. Sant (1871), L. R. f. Q. I?. TiVA ; 41 1.. J. Q. H. 21 : 2." 1.. T. (N.s.) 419 ; 20 W. R.' 18 203 Du Bochet Jle. Mansell r. Allen, [1001] 2 Ch. li] : 70 L. J. f'h. 017 ; 84 L. T. 711) : 49 W. R. 5S8 70 Dubois, /;./-j^(i;-i^ (1787). 1 Cox, 310 206 Dugdale, Re. Dngdale r. Dugdale (1888), 38 Ch. P. 176 ; 57 L. J. Ch. 634 ; 58 L. T. 581 ; 36 W. R. 462 68, 69, 72 Dumas, £x parte (1754), 2 Ves. Sen. 582 ; 1 Atk. 232 ... 472, 474 Dumble, Be, Williams r. Murrell (1883), 23 Ch. D. 360 : 52 L. .T. Ch. 631 ; 48 L. T. 661 ; 31 W. R. 605 351 Dunbar v. Dunbar, [1909] 2 Ch. 6.39 : 101 L. T. .0.-3 : TA Sol. J. 32 ; 26 T. L. R. 21 154, 162 Duncan c. Dixon (1890), 44 Ch. D. 211 ; 59 L. .J. Ch. 437 : 62 L. T. 319 ; 38 W. R. 700 87 Dungannon v. Smith (1846), 12 CI. k F. 546 ; 10 Jur. 721 ; 61 1!. R. 137 . 62 Dunn r. Campbell (1879), 27 Ch. D. 254, n 477 i: Flood (1883). 25 Ch. D. 629 ; 53 L. J. Ch. 537 : 49 L. T. 678 ; 32 W. R. 197 264 V. (IS8.5), 28 Ch. D. 586 ; 54 L. J. Ch. 370 : 52 L. T. 699 ; .33 W. R. 315 264 Dunnage v. White (1820), 1 Jac. & W. 583 ; 21 R. R. 239 . . . . 151 Dunsany's Settlement, Re, Nott r. Dunsanv. [19(i6] 1 Ch. 578 : 75 L. .1. Ch. 356 ; 94 L. T. 361 . . . . " 136 Dutton V. Thompson (1883), 23 Ch. D. 278 ; 52 L. J. Ch. 661 ; 49 L. T. 109 ; 31 W. R. 596 94, 95, 436 Dyer v. Over (1788), 2 Cox, 92 ; 2 R. R. 14 159 Dyke v. Rendall (1852), 2 De G. M. k. G. 209 ; 21 L. .J.Ch. 905 ; 16 Jur. 939. ..181 v. Walford (1846), 5 Moo. P. C. 434 ; 12 Jur. 839 ; 70 R. R. 75 . . 208 Dvson. Re, Challinor r. Sykes, [1910] 1 Ch. 750 ; 79 L. J. Ch. 433 ; 102 L. T. 425 174 and Fowke, Re, [1896] 2 Ch. 720 : 65 L. J. Ch. 791 ; 74 L. T. 759 : 45 W. R. 28 65, 359 E. Eade c. Eade(1820), 5 Madd. 118 ; 21 R. R. 284 18 Eady v. Watson (1864), 12 W. R. 682 ; 33 Beav. 481 : in .lur. (N. P.) 982 ; 10 L. T. (N. S.) 285 257 East, Re (1873), L. R. 8 Ch. 735 ; 42 L. J. Ch. 480 379 Eastern Counties Rail. Co. r. Hawkes (1855). 5 H. L. Cas. 331 : 24 L. J. Ch. 601 ; 3 W. R. 609 ; 101 R. R. 183 266 Easton v. Lander (1892), 67 L. T. 833 ; 62 L. J. Ch. 164 ; 2 R. 176 . . 432 Eaton i: Daines, [1894] W. N. 32 383, 391 Eaves v. Hickson (1861), 30 Beav. 136 ; 5 L. T. (N. s.) 598 ; 7 Jur. (n. s.) 1297; 10 W. R. 29 287,288,292,511 Ebbern r. Fowler, [1909] 1 Ch. 578 ; 78 L. J. Ch. 497 : 100 L. T. 717 ; 53 Sol. J. 356 69 Ebrand r. Dancer (1680), 2 Ch. Cas. 26 159, 165 Ecclesiastical Commissioners r. Pinnev, [1900] 2 Ch. 736 : 69 L. J. Ch. 844 ; 83 L. T. 384 ; 49 W. R. 82 ; 16 T. L. R. 556 266 Eddel's Trusts, Re (1871), L. R. 11 Eq. 559 ; 40 L. J. Ch. 316 : 24 L. T. (N. s.) 223 ; 19 W. R. 815 200 Edgar v. Plomley, [1900] A. C. 431 ; 69 L. J. P. C. 95 ; 82 L. T. 573 ; 49 \V. R. 192 ; 16 T. L. R. 395 510 Edgecumbe r. Carpenter (1839), 1 Beav. 171 ; 8 L. J. (N. s.) Ch. 17 : 49 R. R. 329 436 Edmonds r. Millett (18.55), 20 Beav. 54; 109 R. R. 341 .... 329 r. Peakc (1843), 7 Beav. 239 ; 13 L. J. Ch. 13 ; 64 R. R. 80 . 305 Edwards. Re (1873). L. R. 9 Ch. 97 ; 43 1.. J. Ch. 265 ; 29 L. T. (N. s.) 712 ; 22 W. R. 144 137, 139, 140 r. Carter, [1893] A. C. 360 ; 63 L. J. <'h. KiO ; 69 L. T. 153 ; 58 J. P. 4 ; 1 R. 218 75, 87, 88 r. Ivlwards. ^909] A. C. 275 ; 78 L.J. Ch. 501 ; 100 L. T. 84 . 61 Table of Cases. xlix PAOK Edwards r. Fashion (1712), I'r. Ch. 332 16(j V. JIood-BaiTs, [19U5] 1 Ch. 20 ; 71 L. J. Cji. 107 ; !»I L. T 76fi • 21T. L. K. 89 263, -169 r. Jones (1S3C,), 1 Myl. & Cr. 22G ; r> L. J. (n. s.) Ch. l!ll ; 13 a. R. 178 ,12 r. Meyrick (1842), 2 Hare, (JO ; 12 F.. J. Cli. l!) ; (j Jur. 924 ; 62 R. R. 23 322 Egbert r. Butter (18o6), 21 Beav. 5(!0 ; 111 U. R. 200 . . . . 308,510 Egg r. Devey (1847), 10 Beav. 444 ; 16 L. J. Ch. "jO'.) ; 11 Jur. 1023 ; 76 R. R. 170 4!)4 Eglin r. Sanderson (18(;2), 3 Giff. 434 ; 8 Jur. (N. s.) 329 ; 6 L. T. (N. s.) ITjI . 324 Egmont (Earl) r. Smith (1877), 6 Oh. D. 469 ; 46 L. J. Ch. 3.56 . 179, 180, 323 Egmont's (Earl of) Trusts, Be. Lefroy v. Egmont (Earl of), [1908] 1 Ch. 821 : 77 L. J. Ch. 479; 98L. T. 826 268 Elford, Me, Elford r. Elford, [1910] 1 Ch. 814 ; 79 L..J. Ch. 38.5 ; 102 L. T. 488 ; .54 Sol. J. .542 237 EUcock r. Mapp(1851). 3 H. L. Cas. 492 ; 88 R. R. 174 .... I'A Eilenborough, He, Towry Law r. Burne, [1903] 1 Ch. 697 ; 72 L. J. Ch. 218 ; 87 L. T. 714 ; 31 W. R. 315 46, .55, 57 Elliot r. Merriman (1734), Barn. Ch. 78 ; 2 Atk. 4 •539 Elliot's Trusts, Be (1873), L. R. 15 Eq. 194 ; 42 L. J. Ch. 289 ; 21 \V. R. 455 443, 444, 455 Ellis c. Barker (1871), L. R. 7 Ch. 104 ; 41 L. -J. Ch. 64 ; 25 L. T. (x. s.) 688; 20W. R. 160 . . 223 c. Kerr, [1910] 1 Cb. 529 ; 79 L. J. Ch. 291 ; 102 L. T. 417 ; 54 Sol. J. 307 309 V. Maxwell (1841), 3 Beav. 587 ; 10 L. J. Ch. 266 ; 52 R. R. 235 . . iU\ r. Selby (1836), 1 Myl. & Cr. 286 ; 5 L. J. (N. s.) Ch. 214 . . . 19 Ellis' Trusts, Be (1S74), L. R. 17 Eq. 409 ; 43 L. J. Ch. 444 ; 22 W. R. 448. ..361 , Be, Kelson r. Ellis (1888), 59 L. T. 924 ; 37 W. R. 91 . . 450 Ellis's Settlement, Be, Ellis r. Ellis, [1909] 1 Ch. 618 ; 79 L. J. Ch. 375 ; lOOL. T. 511 136 Ellison r. Ellison (1802). 6 Ves. 656 ; 2 Wli. k Tud. Lead. Cas. (7th ed.) 835 ; 6 R. R. r.) 38 Ellison's Trusts, Re (1856), 2 Jur. (N. s.) 62 ; 101 R. R. 921 . . .188 Elmo)-e's Will, Be (I860), 9 W. R. 66 ; 6 Jur. (N. s.) 1325 ; 3 L. T. (x. s.) 359 ; 119 R. R. 1113 257 Elton r. Elton (1860), 27 Beav. 634 ; 122 R. R. 567 126 Elve V. Boyton, [1891] 1 Ch. 501 ; 60 L. J. Ch. 383 ; 64 L. T. 482 . . 277 Emma Silver Mining Co. r. Grant (1879), 1 1 Ch. D. 918 ; 40 L. T. 801 . 178 Emmet's Estate, Be, Emmet r. Emmet (1881), 17 Ch. D. 142 ; 50 L. J. Ch. 341 ; 44 L. T. 172 ; 29 W. R. 464 463, 465 Empress Engineering Co., Be (1880), 16 Ch. D. 125 ; 43 L. T. 742 : 29 W. R. 342 38. 39, 47 Equitable Reversionary Interest Soc'ety v. Fuller (1861), 1 Johns. & H. 379 ; 30 L. J. Ch.SlS ; 7 Jur. (N. s.) 307 ; 4 L. T. (x. s.) 50 ; 9 W. R. 400 ; 128 R. R. 429 257 Ernest r. Crovsdill (1860), 2 De G. F. & J. 175 ; 29 L. J. Ch. 580 ; 6 Jur. (X. s.) 740 ; 2 L. T. (N. s.) 616 ; 8 W. R. 736 ; 129 R. R. 51 . . 472 Essery r. Cowlard (1884), 26 Ch. D. 191 ; 53 L. J. Ch. 661 ; 51 L. T. 60 : 32 \V. R. 518 92, 93, 154 Evans, Be, Evans v. Evans (1887), 34 Ch. D. 597 ; 56 L. T. 768 ; 35 W. R. 586 431 v. Benyon (1887),: 37 Ch. D. 329 ; 58 L. T. 700 . 492, 500, 503, 507 r. Bicknell (1801), 6 Ves. 174 ; 5 R. R. 245 .... 207, 527 V. Carrington (1860), 2 De G. F. & J. 481 ; 30 L. J. Ch. 364 ; 4 L. T. (X. s.) 65 ; 7 Jur. (X. s.) 197 97 V. Coventry (1854), 5 De G. M. & G. 91 1 : 3 Eq. R. 545 ; 3 W. R. 149 ; 24 L. T. (0. s.) 186 ; 104 R. R. 343 . . . .477 r. Edmonds (1853), 13 C. B. 777 ; 1 C. L. R. 653 ; 22 L. J. C. P. 211 ; 17 Jur. 883 ; 1 W. R. 412 ; 93 R. R. 732 . . .97 r. .Lackson (1836), 8 Sim. 217 ; 6 L. J. (x. S.) Ch. 8 ; 42 R. R. 163. ..332 r. John (1841), 4 Beav. 35 ; 55 R. R. 7 191 r. Walker (1876), 3 Ch. D. 211 ; 25 W. R. 7 63 Evans' Trusts. Be (1872), L. R. 7 Ch. 609 : 41 L. J. Ch. 502 ; 26 L. T. (X. S.) 815 ; 20 W. R. 695 247, 257 T. d Table of Cases. PAOE Everett v. Prvtliergch (1841). 12 Sim. 3G3 ; 11 1.. .J. Ch. 51 ; C .lur. :? ; 56 K. K.'GS 478 Everitt r. Everitt (1870). L. R. 10 Eq. 405 ; 39 L. J. Cli. 777 ; 23 L. T. (N. s.) 13r) ; 18 W. K. 1020 Il4, 95 Evers r. Challis (18o9), 7 H. L. Ciis. 531 ; 29 L. J. Q. 15. 121 ; 5 .lur. (N. s.) 825; 7 W. K. 622 61, 74 Ewart;r. Ewart (1853). 11 Hare, 276 ; 1 E(i. K. 536 ; 17.1ur. I(t22 ; 1 \V. It. 466 135 Evkvn. Br (1877), 6 Ch. D. 115 ; 37 L. T. 261 160 Eyre r. Dolphin (1813), 2 B. & B. 290 ; 12 R. ];. 94 176 — — r. Shaftesbury (Countess) (1723), 2 P. Wms. 102 ; Gilb-Eij. Rep. 172 ; 1 Wli.A: Tud."j.ead. Cas. (8th ed.) 495 365 Eyston. Kr parte. 7/c Throckmorton (1877), 7 Ch. D. 145 ; 47 L. J. Bk. 62 ; 37 L. T. 147; 2(; W. R. ISl 362 Eyton. Up. Bartlett r. Charles (1890), 45 Ch. D. 458 ; 59 L. J. Ch. 733 ; 63 L. T. 336 ; 39 \V. R. 135 525 Ezart r. Lister (1842), 5 Beav. 585 ; 12 L. J. Ch. 10 ; 59 R. R. 570 . . 513 F. Faitlifull, 7?c, Hardwick r. Sutton (1887), 57 L. T. 14 . . . .261 Falconer's Tru.sts, Re, Property k Estates Co., Ltd. r. Frost, [1908] 1 Ch. 410; 77 L.J. Ch. 303 427 Farhall r. Farhall (1871), L. R. 7 Ch. 123; 41 L. J. Cli. 146: 25 L. T. (X. S.) 685 ; 20 W. R. 157 207 Farmer r. Dean (1863), 32 Beav. 327 315, 320 Farnham's Trusts, lie, Law Union and Crown Insurance Co. v. Hartopp, [1904] 2 Ch. 561 ; 73 L. J. Ch. 667 ; 91 L. T. 780 ; 2 L. G. R. 1050 250, 253 Farrant v. Blanchford (1862), 1 De G. J. & S. 107; 11 W. R. 178: 33 L. J. Ch. 237 ; 7 L. T. (N. s.) 770 ; 9 Jur. (N. s.) 423 . 494, 495, .503 Farrar v. Barraclough (1854), 2 Sm. i: (J. 231 ; 2 W. R. 244 ; 97 R. R. 184 495 r. Farrars. Ltd. (1888), 40 Ch. D. 395 ; 58 L. J. Ch. 185 ; 60 L. T. 121 ; 37 W. R. 196 319 Farrer v. Lacv, Hartlatid & Co. (1885), 31 Ch. D. 42 ; 55 L. J. Ch. 149 ; 53 L. T. 51.5'; 34 W. R. 22 342 Fawcett v. Whitehousc (1829), 1 Russ. & Myl. 132 ; 8 L. J. (o. S.) Ch. .50 ; 32 R. R. 163 178 Fcarnside r. Flint (1883), 22 Ch, D. 579 ; 52 L. -J. Ch. 479 ; 48 L.T.154 ; 31 W. R. 318 486 Featiierstonhaugh r. Fcnwick (1810), 17 Ves. 298; 11 R. 1!. 77 . . . 177 Feistel r. King's College (1847), 10 Beav. 491 ; 16 L. J. Cli. 339 ; 11 .Jur. 506 59 Fellows r. Mitchell (1705). 1 P. Wms. 81 ; 2 Vern. 504 .... 308 Fellows' Settlement. Be (1856), 2 .Jur. (N. s.) 62 ; 106 R. R. 921 . . 257 Fenwell r. Grcenwell (1847), 10 Beav. 412 ; 11 .Jur. 620 ; 76 R. R. 154 . 259 Fenwick r. Clarke (1862), 4 De G. F. .V: .J. 24(t ; 31 L. .1. Ch. 728; 6 L. T. (N. S.) 593; 10 W. R. 636 226,305,516 Ferraby 7:. Hubson (1847), 2 Ph. 255 : 16 L. .1. Vh. 499 ; 78 !!. R. 86 . . 265 Ferris v. Mullins (1854), 2 Sm. i: (i. 378 ; 18 Jur. 718 ; 2 W. R. 619; 97 . R. R. 254 181 Fasting r. Allen (1843), 12 Mee. & W. 279 ; 13 L. J. E.\. 74 ; 67 R. R. 339 199 Fetherstone (H.) r. West (1871), Jr. R. 6 Eq. 86 501, 505 Fickus, Be, Farina r. Fickus, [1900] 1 Ch. 331 ; 69 L. J. (^h. 161 ; 81 L. T. 749 ; 48 \V. R. 2.50 35 Field V. Donoughmore (1841), 1 Dru. ^V: AVar. 227 ; 5.S I!. H. 253 . . 36 V. Field, [1894] 1 Ch. 425 ; 63 I,. .1. Ch. 233 ; 69 L. T.S2C) ; 42 W. R. 346 ; 8 R. 201 268, 304 V. Lonsdale (1850), 13 Beav. 78 ; 19 L. J. Ch. 560 ; 11 .lur. 995 ; 89 R. R. 429 1.58 Finch r. Pescott (1874), L. R. 17 Eq. 554 ; 43 L. J. Ch. 728 ; 30 L. T. (N. 8.) 156 : 22 W. R. 437 429,435 Finden v. Stephens (1846), 2 Ph. 142 ; 1 Coop. t. Cott. 318 ; 78 R. R. 55 . 37 Table of Cases. li Finhiy ;•. Darliiij,', [ 181)7] 1 Ch. 71'.) ; CC, L. J. Cli. ;ilS ; 7r, I,. T. HI! • ,", w. K. iio i:{( V. Howard (1843), 2 Dm. k. War. lito ; r,'.) R. II. 7'Xi . . .' :{,s,s Finney's JJstate, lie (18(i2), 3 Giff. 405 ; 8 Jur. (N. s.) 'Mr, ; G L. T. (N. s.) 74."> Hti'J Firmin v. Pulham (1848), 2 Do G. & Sm. !)9 ; 12 Jur. 41U ; 7'J K. K. Uo . 2!»2, 4:5:5 Fish, Re, Bennett v. Bennett, [189:5] 2 Ch. 41:5 ; (12 1.. .1. Ch. 977 ; (59 f. T 2:^:3 ; 2 R. 467 2(i2, :5i:i Fisher y. Shirley (1889), 4:5 Ch. D. 290 ; 59 L. J. Ch. 29 ; (Jl L. T. (JdS; :^8 ' W. 11. 70 i:}i), i.|2 Fisk V. Att.-Gen. (18R7), L. R. 4 Eci. 521 ; 15 W. R. 1200 . . . .' CI Fitch r. Weber (1848), i; Hare, 145; 17 L. .J. Ch. :^G1 ; 12 .Jur. G45; 77 R. R. 56 1G8 Fitzgerald, Rr, Surman r. Fitzgerald, [1901] 1 Ch. 57:5 ; 7:3 L. J. Cli. 4:5(; ; 90 L. T. 2GG ; 52 W. R. 4.32 ; 20 T. L. R. :?:52 . . . G9, l(t8, 251 Fitzgerald's .Settlement, Re, Fitzfjerald r. White (1887), 'S7 Cli. D. 18 ; 57 L. J. Ch. 594 ; 57 L. T. 70G ; '3G VV. R. 385 JJG Fitzgibbon r. Scanlan (18i:j), 1 Dow, 2G1 ; 14 R. R. G2 , . . ,175 Fitzpatrick y. Waring (1882), 11 L. R. Ir. :35 ;3:52 Flamank, Re, Wood v. Cock (1889), 40 Cli. D. 4(51 ; GO L. T. 376 ; 58 L. J. Ch. 518 96 Flanagan v. Great Western Rail. Co. (18G8), 19 L. T. (n. k.) 315 ; L. R. 17 E(i. IIG; 38 L. J. Ch. 117 178 Flavell, Re, Murray r. Flavell (1883), 25 Ch. D. 89 ; 53 L. J. Ch. 185 ; 49 L. T. 690 ; 32 W. R. 102 39, 42, 52 Fleetwood, Re, Sidgreaves v. Brewer (1880), 15 Ch. D. 594 ; 49 L. J. Ch. 514 ; 29 W. R. 45 83 Fletcher v. Ashburner (1779), 1 Bro. C. C. 497 ; 1 Wh. & Tud. Lead. Cas. (8th ed.) 347 174 i: Collis, [1905] 2 Ch. 24 ; 74 L. J. Ch. 502 ; 92 L. T. 749 ; 53 W. K. 516 494, .506, .■307 V. Fletcher (1844), 4 Hare, 67 ; 14 L. J. Ch. iiC, ; 8 Jur. 1040 ; 67 R. R. G 38, 49, 53, 476 v. Green (1864), 3:5 Beav. 426 ... . 309, 468, 471, 502 Flower and Metropolitan Board of Works, Re (1884), 27 Ch. D. 5!)2 ; 53 L. J. Ch. 955 ; 51 L. T. 257 ; 32 W. R. 1011 . 292, 302, 306, 307, W8 Floyer I'. Bankes(1869), L. R. 8 Eq. 115 60. 6'.), 183 Foley V. Burnell (1783), 1 Bro. C. C. 274 476, 477 r. Hill (1848), 2 H. L. Cas. 28 ; 81 R. R. 14 491 • ^- -y. Wontner (1820), 2 Jac. & W. 245 ; 22 R. R. 110 .... :5(;5 Foligno's Mortgage, /^^ (1863), 32 Beav. 131 444,455 Forbes v. Peacock (1844), 1 Ph. 717 ; 15 L. J. Ch. 31 ; 65 R. R. 485 . . 3:59 Ford r. Chesterfield (Lord) (1853), 16 Beav. 516 ; 22 L. J. Ch. 630 ; 1 W. R. 217 ; 20 L. T. (O. S.) 288 ; 96 R. R. 249 189 Forrest r. Forrest (1865), 13 W. R. 380 ; 34 L. J. Ch. 428 ; 11 L. T. (n. S.) 763 ; 11 Jur. (N. s.) 317 160 Forshaw r. Higginson (1855), 20 Beav. 485 ; 109 R. R. 510 . . 375, 4.56 r. (1857), 8 De G. M. & G. 827 ; 26 L. J. Ch. 342 ; 3 Jur. (N. s.) 476 ; 5 W. R. 424 ; 114 R. R. 1356 . 262 r. Welsby (1860), 30 Beav. 243 ; 30 L. J. Ch. 331 ; 7 Jur. (n. s.) 299 ; 4 L. T. (N. S.) 170 ; 9 W. R. 225 92, 96 Forstcr f. Abraham (1874), L. R. 17 Eq. 351 ; 43 L. J. Ch. 199 ; 22 W. R. • 386 :W3 r. Dawber (1860), 8 W. R. 646 ; 1 Dr.c*c Sm. 171 .... 188 f. Hale (1798), 3 Ves. Jun. 696; 4 R. R. 128 .... 78,80 Fortescue v. Barnett (1834), 3 Myl. & K. 36 ; 41 R. R. 5 . . . . 42 Foster, Re, Lloyd v. Carr (1890), 45 Ch. D. 629 .... 235, 244, 245 V. Elsley (1881), 19 Ch. D. 518 ; 51 L. J. Ch. 275 ; 30 W. R. 596 . 37 and Lister, Re (1877), 6 Ch. D. 87 ; 46 L. J. Ch. 480 ; 36 L.T. 582 ; 25 W. R. 553 117 Foster's Trusts, 7?e (1886), 55 L. T. 479 390 Foulkes V. Metropolitan District Rail. Co. (1880), 5 C. P. D. 157 ; 49 L. J. C. P. 361 ; 42 L. T. 345 ; 28 W. R. 526 .... 3 Fountaine, Re, Fountaine v. Lord Amherst, [1909] 2 Ch. 382 ; 78 L. J. Ch. 648 ; 101 L. T. 83 ; 25 T. L. R. 689 . . 484, 488, 489, 506 r. Pellet (1791), 1 Ves.Juu. 1337 246,250 d2 Hi Table of Cases. PAGE Fo\ca.ux, Iif'. Cross v. I-oiidon Anti-Viviscfdon Society, [isn5] 2 Ch. 501 ; 64 L. J. Ch. 856 ; 73 I.. T. 202 ; 43 W. K. (KU ; 13 K. 730 . . . 77 Fowkesr. Pascoe (1874). L. 11. 10 011.43.-1,71 160 V. (1875), L. R. 10 Ch. 343 ; 44 L. J. C'li. 3()7 ; 32 L. T. 545 ; 23 W. R. 538 155, 160, 161 Fowler, He, Fowler r. Odell (1881). 16 Ch. D. 723 : 44 L. T. '.I'.i ; 2!» W. K. 891 2.53, 26<), .331 ,-. Cohn (1S56), 21 Beav. 360 ; 2 Jur. (N. s.) 315 ; 4 W. It. 412 ; 27 L. T. (o. s.) 25; 111 R. R. 124 427 V, Fowler (1864), 33 Beav. 616 ; 33 L. J. Ch. 674 ; Hi -Jur. (N. s.) 648 ; 12 W. R. 972 61 r. .Tames (1847), 1 Coop. t. Cott. 290 ; 1 Ph. 803 ; 16 L. J. Ch. 266 ; 76 R. R. 23 53 Fox r. Buckley (1876), 3 Ch. D. .508 ; 25 W. R. 170 . . . 7. 510, 517 V. Garrett (1860), 28 Beav. 16 ; 29 L. J. Ch, 423 ; 6 Jur. (N. s.) 208 ; 1 L. T. (N. s.) 474 ; 126 R. R. 3 260 r. Hawks (1879). 13 Ch. D. 822 ; 28 W. R. 656 ; 49 L. J. Ch. 579 ; 42 L. T. 622 46 r. Mackreth (1788). 2 Bro. C. C. 400 : 2 Cox, 320 ; 2 \Vh. & Tii. Lead. Cas. (7th cd.) 709 ; 2 R. R. 55 315 Francis, J?r, Barrett i: Fisher (1905), 74 L. .1. Ch. 198 ; 92 L. T. 77 . . 318 V. Francis (1854), 5 De G. M. & G. 108 ; 104 R. R. 47 . 278, 309, 320, 412 Eraser r. Murdoch (1881), 6 App. Cas. 855 ; 45 L. T. 417 ; 30 W. R. 162. ..227, 295, 430, 437 r. Thompson (1859), 4 De G. & J. 659 ; 7 W. R. 678 ; 124 R. R. 443. ..108 Freeman, lie, Shilton r. Freeman, [1908] 1 Ch. 720 ; 77 L. J. Ch. 401 ; 98 L. T. 429 ; 24 T. L. R. 300 20 V. Cox (1878). 8 Ch. D. 148 ; 47 L. J. Ch. 560 ; 26 W. R. 689 . 477, 478, 479 r. Pope (1870), L. R. 5 Ch. 538 ; 39 L. J. Ch. 689 ; 21 L. T. (N. s.) 816 ; 18 W. R. 906 109,111,112 Freeman's Settlement Trusts, Be, (1887), 37 Ch. D. 148 ; 57 L.J. Ch. 160 ; 57 L. T. 798 ; 36 W. R. 71 312, 314, 394 Frcman, Re, Dimond v. Newburn, [1898] 1 Ch. 28 ; 67 L. .J. Ch. 14 ; 77 L. T. 460 254 r. Whitbread (1865), L. R. 1 Eq. 266; 35 L. J. Cli. 137 ; 13 L. T. (X. s.) 550 ; 14 W. R. 188 225 Frenie r. Clement (1881), 18 Ch. D. 499 ; .50 L. J. Ch. Sol ; 44 L. T. 399 ; 30 W. R. 1 198 Freme's Contract, Be, [1895] 2 Ch. 259 452 , [1895] 2 Ch. 778 ; 61 L. .1. Ch. 862 ; 73 L. T. 366 ; 44 "W. R. 164 ; 13 R. 474, n 452 French r. French, [1902] 1 Ir. 172 85 V. Hobson (1803), 9 Ves. 103 492 Frewen v. Law Life Assurance Society, [1896] 2 Ch. 511 ; 65 L. J. Ch. 787 ; 75 L. T. 17 ; 44 W. R. 682 246, 247 Friend r. Young, [1897] 2 Ch. 421 ; 66 L. J. Ch. 737 ; 77 L. T. 50 ; 46 W. R. 139 183 Frith, /^e, Newton r.Rolfe, [1902] 1 Ch.342; 71 L. J. Ch. 199 ; 86 L.T. 212...440 V. Cameron (1871). L. R. 12 Eq. 169 ; 40 L. J. Ch. 778 ; 24 L. T. (N. s.) 791 : 19 \y. R. 886 183, 253 i: Cartland (1865), 2 Hem. & M. 417 ; 34 L. J. Ch. 301 ; 12 L. T. . (K. s.) 175 ; 14 W. R.493 ; 11 Jur. (N. S.)238 205, 471, 472, .526.527 and Osborne, Be(\H7(>), 3 Cii. D. 618 ; 45 L. J. Ch. 780 ; 35 L. T. 146 ; 24 W. R. 1061 337 Froglej', Be, [1905] P. 137; 74 L. J. P. 72 : 92 t.. T. 42!) ; 51 W. P. 48 ; 21 T. L. R. 341 70 Fro.st, Be, Frost r. Frost (1889), 43 Ch. D. 246 ; 59 L. J. Ch. US : 62 L.T. 25 ; 38 W. R. 2(54 73 Fry. Jfe, Fry r. Lane, Whittet r. Bush (1888), 40 Ch. D. 312 ; 58 L. J. Ch. 113 ; 60 L. T. 12 ; 37 W. R. 135 96 i: Fry (18.59), 27 Beav. 144 ; 28 L. J. Ch. 593 ; 5 Jur. (x. s.) 1017 ; 122 R. R. 354 215 r. Tapson (1884), 28 Ch. D. 268 ; 51 L. .]. Cli. 221 ; 51 L. T. 326 ; 33 W.R.I 13 266, 2S3, 293, 296, 461, 464 Table of Cases. liii I'AtJE Fryer, lla, MartiiuliiU; v. Piciuot (Is:,?), :{ Kiiy .V .1. :il7 ; L'C L. .1. Cli. :i'.)S ; a Jur. (N. S.) 480 ; 5 W. K. 552 ; 112 U. K. ICtJ . . . 2'J3, 308, 4!)8 Fulham, iila (185U), 15 Jur. 6!) 257 Fuller, Re, [I'JOO] 2 Oh. 551 ; 0!) L. J. Ch. 73S ; 88 h. T.208 ; li) W. \i. ..l. (Jh. 182 ; C;} K. It. 51 . 50;». 514 P>ler r. Fyler Cl^^l), -5 l^>eav. 55U ; 5 Jur. 187 ; 52 U. 11. 217 . . . ' 4'.J7 G. G., Be, [1899] 1 Ch. 719 ; G8 L. J. Ch. :?74 ; HO L. T. 470 ; 47 W. U. 491. ..31, 32 Gadd, lie, Eastwood *\ Clark (1883), 23 Ch. D. 131 ; 52 L. J. Ch. 39G ; 48 L. T. 395 ; 31 W. R. 417 353, 379 GafEee, Re (1849), 1 Mac. & G. 541 ; 1 Hall .V: T\v. (;35 ; 19 L. J. Ch. 179 ; 14 Jur. 277; 84 R. K. 1.52 357,301 Gainsborouu-h (Lord) -y. Watcombe Terra CoUa Co. (1885), 54 L. J. Ch. 991 : 53 L. T. 116 327, 1(13 Gale V. Gale (1877), G Ch. D. 144 ; 4G L. J. Ch. 809 ; 3G L. T. G90 : 25 W. K. 772 54 Game, Re, Game r. Young, [1897] 1 Ch. 881 ; GG L. J. Ch. 505 ; 7G L. T. 450 ; 45 W. R. 472 231 Gandy v. Gandy (1885), 30 Ch. D. 57 ; 54 L. J. Ch. 1154 : 53 L. T. 30G : 33 W. R. 803 38, 39, 47 Gardiner, Re, Gardiner r. Smith, [1901] 1 Ch. G97 ; 70 L. J. Ch. -1()7 . GG Gardiner's Trusts, Re (1886), 33 Ch. D. 590 ; 55 L. J. Ch. 714 ; 55 L. T. 2G1;35W. R. 28 384, 3'.n. Iii2 Gardner's Trusts, Re (1878), 10 Ch. D. 29 ; 40 L. T. 52 ; 27 W. R. 1G4 . 387, 390, 40U Garland, Ex p arte (1804), 10 Ves. 110 ; 1 Smitli, 220 : 7 R. R. 352 . 207, 440 Garner r. Moore (1855), 3 Drew. 277 ; 24 L. J. Ch. G87 ; 3 W. R. 497 ; lOG R. R. 345 353 V. Wingrove, [1905] 2 Ch. 233 ; 74 L. J. Ch. 545 ; 93 L. T. 131 ; 5:', W. R. 588 204 Garnett, Re, Gaudy v. Macauley (1884), 32 W. R. 474 ; 50 L. T. 172 . 45(» , Re, 0. (1885), 31 Ch. D. 1 . . . 492, 493, 497 , Re, Richardson -*'. Greenep (1905), 93 L. T. 1 1 7 ; 74 L. J. Ch. 570 93, 154 • , Re, Robinson v.. Gandy (1886), 33 Ch. D. 300 ; 55 L. J. Ch. 773 ; 55L. T. 563 Ill , Orme and Hargreaves' Contract, Re (1883), 25 Ch. D. 595 : 53 L. J. Ch. 196 ; 49 L. T. 655 ; 32 VV. R. 313 12G Garnhara v. Skipper (1885), 34 W. R. 135 ; 55 L. J. Ch. 263 ; 53 L. T. 940 G Garrard v. Lauderdale (1830), 3 Sim. 1 ; 30 R. R. 105 .... 36 • V. (1831), 2 Russ. & Myl. 451 ; 30 R. R. 105 . . 3(; ■ V. Tuck (1849), 8 C. B. 231 ; 18 L. J. C. P. 338 ; 79 R. R. 475 . 2u3 Garrett v. Wilkinson (1848), 2 De G. & Sm. 244 ; 79 R. R. 197 . . . 163 Garth «. Cotton (1753), 3 Atk. 755 183 Gartside's Estate, Re (1853), 1 W. R. 196 ; 94 R. R. 886 .... 3S'.) Gascoignei'. Thwing(1686), 1 Vern. 366 1''0 Gaskell v. Chambers (1858), 26 Beav. 360 ; 28 L. J. Ch. 385 ; 5 Jur. (X. s.) 52 : 122 R. R. 138 1"8 Gaskell's Settled Estates, Re, [1894] 1 Ch. 485 ; 63 L.J. Ch.213 ; 70 L. T. 554 ; 42 W. R. 219 ; 8 R. 67 255 Gason v. Rich (1887), 19 L. R. Ir. 391 , ' ^'^ Gasquoine, -R^, Gasquoine '('. Gasquoine, [1894] 1 Ch. 470; 63 L. J. Ch. 377 ; 70 L. T. 196 ; 7 R. 449 '^^^^ Gatenby v. Morgan (1876), 1 Q. B. D. 685 ; 45 L.J. Q. L?. 597 ; 35 L. T. 245. ..170 Gaus.sen *'. Whatman (1905), 93 L. T. 101 -'19 Geaves, E.,- parte. Re Strahan (1856), 8 De G. M. & G. 291 ; 25 L. J. Ilk. .53 ; 2 Jur. (N. s.) 651 ; 4 W. R. .536 ; 114 R. R. 122 . . • • 212 Geddis v. Scrapie, [1903] 1 Ir. R. 73 83 Gee V. Liddell (1866), 35 r.eav. 621 '-^ General Estates Co., Re, Ej^ parte City Bank (1868), L. R. 3 Ch. 758 ; 18 L. T. (N. S.) 894; 16 W. R. 919 519,528 Genery c. Fitzgerakl (1822), Jac. 468 ; 23 R. R. 121 :^"j1 Gent '0. Harrison (1859), Johns. 517 ; 29 L. J. Ch. 68 ; 5 Jur. (x, s.) 1285 ; 1 L. T. (N. s.) 128 ; 8 W. R. 57 ; 123 R. R. 216 :i:M liv Table of Cases. PAGE Gent and Eason's Contract, lie. [1905] 1 Cli. 386 ; 74 L. J. Ch. 333 : 92 L. T. 356 ; r)3 W. R. 330 126 George, Re (1877), 5 Ch. D. 837 ; 47 L.J. Ch. 118 ; 37 L. T.204 ; 20 W. U. 6.") 349, 3:.2 r. Howanl (1S19"). 7 Price, 640; 21 R. R. 775 100 r. Milbanke (1S03), 9 Ves. 190 : 7 R. R. 157 114 Gerard (Lnrd), Be, Oliphant v. Gerard (18SS), 58 L. T. 800 .. . 130 German Mininj,' Co., 7^c, £/•;;«/•/« Chippendale (1854), 4 De (I. ^\. ^ G. 19 ; 2 W. R. 547 ; 18 Jur. 710 ; 23 L. T. (o. s.) 200 ; 102 K. R. 7 . 429, 430, 440 Ghost r. Waller (1840). 9 Reav. 497 : 73 R. R. 411 494 Gibhins r. Tavl(.r (1S56). 22 Beav. 344 ; 111 R. R. 394 .... 502 Gibbsv. Glaniis (1841), 11 Sim. 584 30 V. Ramsey (ISIH), 2 Ves. & R. 294 ; 13 R. R. 88. . . . 151. 159 Gibson r. IIol]an9 V. Wakeford (1839), 1 Beav. 576 ; 8 L. J. (N. s.) Ch. 333 ; 49 R. R. 455 375 Greenwood's Trusts, Re (1884), 27 Ch. D. 359 ; 54 L. J. Ch. 623 ; 51 L. T. 283 ; 33 W. R. 342 400 Greer, iZe, [1907] llr. R. 57 ■''>27 Gregory v. Gregory (1815), G. Coop. 201 ; 14 R. R. 244 . . . . 495 r. (1836), 2 Y. & Coll. Ex. Eq. 313 : 6 L. J. E.x. Eq. 52 . 293 v. Henderson (1813), 4 Taunt. 772 ; 14 R. R. 005 .... 194 r, Williams (1817), 3 Mer. 582 ; 17 R. R. 136 . . . .47. 51, 52 Gregson, Re, [1893] 3 Ch. 233 ; 67 L. J. Ch. 764 ; 69 L. T. 73 ; 41 W. R. 641 ; 2 R. 513 402 Gregson's Trusts, Re (1886), 34 Ch. D. 209 ; 56 L. J. Ch. 286 ; 35 W. R. 286 . 373, .385, 389 Grenfell v. Dean and Canons of Windsor (1840). 2 Beav. 544 ; 50 R. R. 279 58 Grenville-Murray r. Clarendon (Earl) (1869), L. R. 9 Eq. 11 ; 39 L. J. Ch. 221 ; 21 L. T. (N. s.) 448 ; 18 W. R. 124 37 Gresley v. Mousley (1859), 4 De G. & J. 78 ; 28 L. J. Ch. 020 ; 5 Jur. (N.s.) 583 ; 7 W. R. 427 ; 124 R. R. 164 495 Grier v. Grier (1872), L. R. 5 H. L. 688 1-4 Grieveson v. Kirsopp (1838), 2 Keen. 653 ; 6 L. J. (N. s.) Ch. 261 ; 1 1 R. R. 305 ...15 Griffin, ^t-^jfl/'id-, i?e Dixon (1820), 2 Gl. cV J. 114 306 Ivi Table of Cases. PAGK Griffin u. Brady (1869), 39 L. . I. Cli. i:^i", ; IS W. 1!. ISO .... 432 CIriftith. Jic. Jones v. Owen, [l'JU4] 1 Cli. W7 ; 73 I.. .J. Ch. UJl : !>0 L. T. (!3i) 42',). 43.") c. Buckle (IfiSG), 2 Tern. 13 123 r. Hutrhe-s. [1S'.(2] 3 Ch. 10.5 ; (52 L. J. Ch. 13.". : m L. T. 7GU ; 40 W. 11. 524 501, 508 r. Owen, [1907] 1 Ch. 195 ; 70 L.J. Ch. 92 ; 9(J L. T. 5 ; 23 T. L. 11. 91 177, 31C r. llicketts (1849), 7 Jiarc, 299 ; 19 L. J. Ch. 399 ; 14 Jur. 325 ; 82 R. R. Ill 3r, Grimths i: I'orter (18.58), 25 Beav. 23i; ; lli» R. R. 403 . 2SS. 495. 510, 51(; r. Vere (1803), 9 Ves. 127 ; Tud. Lead. Cas. Conv. (4tli ed.) (;i.s...t;o. 74 Griggs r. Gibson (186G). 14 W. R. 538 ; 35 L. J. Ch. 4.58 .... 220 Griniond r. Grimond, [1905] A. C. 124 : 74 L. J. P. C. 35 ; 92 L. T. 477 ; 21 T. L. R. 323 19 Grimthorpe (Lord). lie, Beckett r. Grimtborpe (Lord). [1908] 2 Ch. r,75 : 78 L. J. Ch. 20 ; 25 T. L. R. 15 ...... 1(;7. 172. 173 Grindcv, iiV, Clews ?•. Grindey. [1898] 2 Ch. 593; r.7 L. J. Ch. G24 : 79 L.T. 105 ; 47 W. R. 53 : 14 T. L. R. 555 483 Groves;. Price (1858). 2G Beav. 103 : 122 R.R. 4G 2.59 r. Search (190G). 22 T.L. R. 290 2(15 Guibert, 7/<' (1852). IG Jur. 852 ; 93 R. R. 877 394 Gulliver r. Vaux (1740), 8 DeG. M. & (L 1G7, n 07 Gullvr. Crogoe(1857), 24 Beav. 185 : IIG R. R. 88 25 Gunn r. Bolckow, Vautrlmn i: Co. (1875), L. R. 10 Ch. 491 ; 44 L. J. Ch. 732 : 32 L. T. (N. s.) 781 : 23 W. R. 739 180 Gunnel! r. Whitear (1870). L. R. 10 Eq. GG4 ; 3i» L. J. Ch. 8G9 : 22 L. T. (N. s.) G45 ; 18 W. R. 883 444 Gurnev, Bp. Mason r. Mercer. [1893] 1 Ch. 5!)0 ; 08 L. T. 289 : 41 W. R. 443 : 3 R. 148 490 Ciuthrie r. Walrond (1883). 22 Ch. U. 573 ; 52 L. J. Ch. 105 : 4 7 L. T.OM : 31 W. R. 285 . . :',52 Gyhon, 7^-. Allen r. Tavlor (1885), 29 Ch. D. 834 ; 54 L. J. Ch. 945 ; 53 L. T. 539 ; 33 W. R. G20 450 H. H. »•. W. (1857). 3 Kay & J. 382; 112 R. R. 190 CO K.'s Estate, Jie. H. r. H. (1875), 1 Ch. D. 270 ; 45 L. J. Ch. 749 ; 24 W. R. 317. .' 478 I[aber ; 1 Maiison, 25 : <) R. 278 .... 474 Hallett's Estate, lie, Knatchlnill r. Hallett (1880), 13 Ch. 1). G9(i ; 49 L. J. Ch. 415 ; 42 L. T. 421 ; 28 \V. R. 732 . . . 2(i5, 471. 472, 474 Hallows V. Lloyd (1888), 39 Ch. 1). G80 ; 58 L. J. Ch. 105 ; 59 L. T. G03 ; 37 W. R. 12 212,213,290 Hamilton, i^fl, Trencli i'. Hamilton, [1895] 1 Ch. 373; G4 L. .). (Mi. (135: 72 L. T. 88 ; 43 W. R. IC.l . . IC , Jle, 7'. , [1895] 2 Ch. 370 ; G4 L. J. Ch. 7!I9 ; 72 L. T. 748 ; 43 W. R. 577 ; 12 R. 355 . . . I G, 24, 29 r. Hamilton, [18!)2] 1 Ch. 396 ; Gl L. .L Ch. 220 ; GG L. T. 112 ; 40 VV. R. 312 87 /-. Molloy (1880), 5 L. R. Ir. 339 IIG r.Tighe, [1898] 1 Ir. R. 123 257 Hammersley v. de Biel (1845), 12 CI. & F. 45 ; 69 R. R. 18 . . 35, 80 . r. (184.5), 12 CI. & F. Gl, n 35 Hampden v. Wallis (1884), 27 Ch. D. 251 ; 54 L. J. Ch. 1175 ; 51 L.T. 357 ; 32 W. R. 977 4 77 Hami)ton v. Spencer (1693), 2 Vern. 288 SO Hanbury, lie, Hanbury v. Fisher, [1904] 1 Ch. 415 ; 73 L.J. Ch. 222 ; !)0 L. T. 66 ; 52 W. R. GG2 ; 20 T. L. R. 209 .... 30 V. Kirkland (182!)), 3 Sim. 265 ; 30 R. R. 165 . . . 300, 308 Hanchett r. Briscoe (185G), 22 Beav. 49G ; 111 R. R. 453 . . . 50G, 508 Hancock v. Hancock (1888), 38 Ch. D. 78 ; 57 L. J. Ch. 39G : 58 L. T. i)OG ; 36 W. R. 417 89, 141 V. Smith (1889), 41 Ch. D. 456 ; 58 L. J. Ch. 725 ; 61 L. T. 341 . 475 V. Watson, [1902] A. C. 14 ; 71 L. J. Ch. 149 ; 85 L. T. 729 ; 50 W. R. 321 166,168,170 Hancox v. Spittle (1857), 3 Sm. & G. 478 399 Handcock's Trusts, lie (1889), 23 L. R. Ir. 34 62 Hannah v. Hodcrson (18G1), 30 Beav. 19 ; 5 L. T. (N. s.) 42 : 9 W. R. 729 . 292 Harbin r. Darby (1860), 28 Beav. 325 ; 29 L. J. Ch. 622 ; G Jur. (N.S.)90G ; 2 L. T. (N. s.) .531 ; 8 W. R. 512 ; 126 R. R. 1.50 313 Harcourt v. Seymour (1851), 2 Sim. (n. s.) 12 ; 20 L. J. Ch. 606 ; 15 Jur. 740 ; 89 R. R. 196 :558 Harcourt's Trusts, lie, White v. Harcourt, [1911] W. N. 214 : 56 Sol. J. 72 . 144 Hardaker v. Moorhonse (1884), 26 Ch. U. 417 ; 53 L. J. Ch. 713 ; 50 L. T. 554 ; 32 W. R. 638 379 H.ardcastle, A> parte (1881), 29 W. R. 615 ; 44 L. T. 525 .... 47G Harden ■?). Parsons (1758), 1 Eden, 147 308 Hardins? v. Harding (1886), 17 Q. B. D. 442 ; 55 L. J. Q. B. 462 ; 34 W. R. 775 ■ 38. 42 Hardmani-. Johnson (1815), 3 Mer. 347, 17 R. R. 95 176 Hardoon r. Belilios, [1901] A. C. 118 ; 70 L. J. P. C. 9 ; 83 L. T. 573 ; 49 W. R. 209; 17T. L. R. 126 179,430,437 Hardstaff,7(;«, [1899] W. N. 256 :^4-'' Hardwick v. Mynd (1792), 1 Anst. 109 ; 3 R. R. 5(12 .... 295, 296 Hardy v. Fotbergill (1888), 13 App. Gas. 351 ; 58 L. J. Q. B. 44 ; 5!) L. T. 273 ; 37 W. R. 177 ; 53 J. P. 36 •">^' V. Reeves (1800), 5 Ves. 426 f^20 Hargreaves, lie, Midgley r. Tatley (1890), 43 Ch. D. 401 ; 59 L. J. Ch. 384 ; 62 L. T. 473 ; 38 W. R. 470 C3 Harkness and Allsopp's Contract, lie, [1896] 2 Ch. 358 ; 65 L.J. Ch. 726 ; 74 L. T. 652 ; 44 W. R. 683 :595 Harle «. Jarman, [18!)5] 2 Ch. 419; 64 L. J. Ch. 779; 73 L. T. 20; 43 W. R. 618 ; 13 R. 610 SS Harman r. Richards (1852), 10 Hare, 81 ; 22 L. J. Ch. 1U6G ; !)0 R. R. 297 114 J.Uh. 169 ; 248 518 litO 214 Iviii Table of Cases. PAGE Ilannan and tlio UxbridL'C and Kickmanswnitli Rail. Cd., Tie (188S), 24 (Jh. D. 720 ; 52 L. J. Ch. S08 ; 49 L. T. 13u : 31 W. K. 857 . . . 524 Harris v.. Harris (No. 1) (18G1), 29 Beav. 107 ; 9 \V. R. 444 ; 7 Jur. (n. s.) 955 276, 278 r. (No. 2) (ISCl). 29 Beav. 110 516 r. Newton (1S77). 4(5 L. .1. Cii. 268 ; 36 L. T. 17:? : 25 W. R. 228 . 171 c. Tubb (1889), 42 Cli. i). 79 ; 58 L. J. Ch. 434 ; 60 L. T. 699 ; 38 W. R. 75 113,116 Harrison, Bp, Harrison i\ lligson, [1894] 1 Ch. 561 ; 63 L. J. Cli. 385 ; 70 L. T. 868 70 , Be, I'ownson r. Harrison (1889), 43 Ch. D. 55 : 59 L (il L. T. 762 ; 38 VV. R. 265 .... *■. Forth (1695). Pr. Cii. 51 ■ r. (Jrahani (luidaled), 1 F. Wms. (6th ed.) 241, n. r. Randall (1852). 9 Hare, 397 ; 21 L. J. Cli. 294 V. The.xton (1858), 4 Jur. (N. s.) 550 ; 111 R. R. 877 ; 16 Jur. 72 ; 89 R. R. 501 261 and Insjrani. Be, Kr parte Whinney, [1900] 2 Q. B. 710; 69 L. J. Q. B. 942 : S3 L. T. 189 ; 49 W. R. 2: 7 Manson, 378 . . 102 Harrison's Trusts, Be (1852), 22 L. J. Ch. 69 : 1 W. R. 58 ; 20 L.T. (O.s.) 123 ; 94 R. R. 794 374, 378, 381 Hart?J. Middlehurst (1746), 3 Afk. 371 123 ?;. Tribe (1854), 18 Beav. 215; 23 L. J. Ch. 462: 2 W. R. 239: 94 R. R. 439 25 Harton r. Harton (1798), 7 T. R. 652 : 4 R. R. 537 . . . 195, 201, 202 Harvard Collei^'e r. Alderman (1870). 104 Mass. 470 250 Harvey, Be, Peek r. Savory (1888), 39 Ch. D. 289 ; 60 L. T. 79 . . 61, 74 :_ ,.. Olliver (1887), 57 L. T. 239 : [1887] W. N. 149 . . 213, 433 Harwood r. Tooke (1812), 2 Sim. 192 ; 29 R. R. 81 56 Hastie /•. Hastie (1876), 2 Ch. D. 304 : 24 W. R. 564 ; 34 L. T. (N. s.) 747 . 35 Hastie's Trusts. Be (1887), 35 Ch. D. 728 ; 56 L. J. Ch. 792 ; 57 L. T. 168 ; 35 \V. R. 692 70 Havelock r. Havelock (1881), 17 Ch. D. 807 220 Hawker's Settled Estates, Be, Uuff r. Hawker (1897), 06 L. J. Ch. 341 ; 76 L. T. 286 ; 45 W. R. 440 255 Hawkins r. Gardiner (1854), 2 Sm. & G. 441 78 ■ r. Kemp (1803). 3 East, 410 296 r. Luscombe (1818), 2 Swans. 375 201 Haycock's Policy, Be (1876), 1 Ch. D. 611 : 45 L. J. Ch. 247 ; 24 W. R. 291. ..443 Haves r. Oatley (1872), L. R. 14 Eq. 1 ; 41 L. J. Ch.510 ; 26 L.T. (N.s.) 816. ..425 Hayter, Be (1883), 32 W. R. 26 325 Head v. Goodlee (1859), Johns. 53(! : 29 L. J. Ch. 633 ; 6 Jur. (N. s.) 495 ; 8 W. R. 141 ; 123 R. R. 227 171,172 r. Gould, [1898] 2 Ch. 2.50; 67 L. J. Ch. 480; 78 L. T. 739 ; 46 W. R. 597 ; 14 T. L. R. 444 269, 464, 505 Head's Trustees and Macdonald, J?^ (1890), 45 Ch. D. 310; 59 L. J. Ch. 604 ; 63 L. T. 21 ; 38 W. R. 657 217, 335 Headin^tons Trust, Be (1857), 6 \V. R. 7 : 27 L. J. Ch. 175 : 114 R. R. 516. ..443 Heardson r. Williamson (1836), 1 Keen, 33; 5 L. J. (n.s.) Ch. 165; 44 R. R. 7 197,200 Heartlev ''. Nicholson (187.")), L. R. 19 Eq. 233 ; 44 L.J. Ch.277 ; 31 L. T. (N.s.) 822 ; 23 \V. R. 374 44 Heasman r. I'earce (1871). L. R. 7 Ch. 275 ; 41 L. J. Ch. 705 ; 27 L. T. (N. S.) 89 ; 2(1 W. R. 876 62 Heath /•. Lewis (1853). 3 Ue G. M. & Ci. 95 1 : 22 L. J. Ch. 721 ; 17 Jur. 443 ; 21 L. T. (o. s.) 135 ; 1 W. R. 314 : 9.S R. R. 386 72 Healhcote r. Hulnie (I8I9), 1 Jac. vt \V. 122 ; 20 R. R. 248 . . . 465 Hedderwick's Trustees i\ Hedderwick's R.xecutors (1910), Sc. Cas. 333 . 153 Hemings Trust, Be (1856), 3 Kay 4: J. 40 ; 26 L. J. Ch. 106 ; 2 Jur. (N. s.) 1186;5W. R. 33 443,4.56 Henderson f. Astwood, [1894] A. C. 150; 6 R. 4.-i0 182 r. M'lver fl81H), 3 Madd. 275 297 r. Rothschild C1HH6), 33 Ch. 1 >. 4.V.» ; 55 L. J. Ch. 939; 55 L.T. 165 ; 34 W. R. 769 36 Hcngler. Be, Frowde r. Hengler, [1893] 1 Ch. 586 ; (52 L. J. Ch. 383 ; 68 L. T. 84 ; 41 W. R. 491 ; 3 R. 207 252 Table of Cases. lix PAGE llenriqucs r. Beiisusnn (1872). 20 W. K. :$.")() 30 lloniy, Ite, Uoidou r. Henry, [I'JUTJ 1 Cli. 30 ; 7(5 L. J. Ch. 74 ; '.»:> ly. '1'. 77(> 218 ■ r. Armstrong (1881), 18 Ch. D. (;G8 ; 44 L. T. iHS : :?(i \V. It. 472 4o, Hepworth r. Hepworth (1870), L. 11. 11 Kq. 10 ; 40 L. J. Ch. Ill ; 2:5 L. T. (N. s.)388: 1!) W. K. 46 IC;} Hernando, Re, Hernando r. Sawtell (1884), 27 Ch. D. 284 ; o!} L. J. Ch. 865; 51 L. T. 117; nSW. R. 252 CI Herrick i>. Cooper, [1899] 1 Ir. K. :S21 447, 4.-.0 Hetherinuton's Trusts, Rf (1886). :54 Ch. 1). 211 ; 56 L. .J. Cli. 171 ; 55 L. T. 806 : 85 W. K. 285 ;585 Hetley, Re, Hetley v. Hetley, [1902] 2 Ch. 866 ; 71 L. .J. Cli. 769; 87 L. T. 2(!5 ; 51 W. K. 202 83 Hetling and Merton, Re, [ 1898] 8 Ch. 2(;9 ; 62 L. .J. Ch. 783 ; 69 L. T. 266 ; 42 W. R. 19 ; 2 R. .548 296 Hewitt r. Loosemore (1851), 9 Hare. 449 ; 21 L. J. Ch. 69 ; 15 Jiir. 1097 ; 18 L.T. (O. s.) 188 : 89 R. R. 526 527 Hewitt's Estate, -Re (18.58), 6 W. R. 537 ; 110 K. 11. 962 .... 899 ■ , Re, Gateshead Corporation v. Hudspeth (1883), 53 L. J. Ch. 132 ; 49 L. T. 587 20 Hibbert v. Cooke (1824), 1 Sim. & St. 552 ; 24 R. R. 225 .... 258 Hickley v. Hickley (1876), 2 Ch. D. 190 ; 45 L. J. Ch. 401 ; 81 L. T. (K. s.) 441 ; 24 W. R. 604 321 Hioginbotham «. Holme (1812), 19 Ves. 88 68,107 Hisginbottora, Re. [1892] 3 Ch. 132 ; 62 L. J. Ch. 74 : 67 L. T. 190 ; 3 R. ■^ 23 . . . . 877 Higgins V. Hill (1887), 56 L. T. 426 56 Higginson and D«an, Re, Ex parte. Att.-Gen., [1899] 1 Q. It. 825; 68 L. J. Q. B. 198 ; 79 L. T. 673 ; 47 W. R. 285 ; 5 Manson, 289 . . 208 Highway v. Banner (1785), 1 Bro. C. C. 584 123 Hiibers v. Parkinson (1883), 25 Ch. D. 200 ; 58 L. J. Ch. 194 : 49 L. T. 502 ; 82 W. R. 315 186 Hill, Re, Hill 'c. Hill (1881), 50 L. ,T. Ch. 551 ; 45 L. T. 126 . . 285, 245 , Re, v. Pilcher, [1896] 1 Ch. 962 ; 65 L. J. Ch. 511 ; 74 L. T. 460 ; 44 W. R. 578 880 r. Crook (1873), L. R. 6 H. L. 265 ; 42 L. J. Ch. 702 ; 22 AV. R. 137 69 V. Hill, [1897] 1 Q. B. 488 ; 66 L. J. Q. B. 329 ; 76 L. T. 108 ; 45 W. R. 371 24. 29 ^•. London (Bishop of) (1737). 1 Atk. 618 149 V. Trenerv (1856), 23 Beav. 1() 220 Hiirs Trusts, JA', [1874] W. X. 228 394 , Re. Hill r. Equitable Reversionary Interest Society (1896), 75L. T. 477 ' 463 Hilliard r. Fulford (1876), 4 Ch. D. 389 ; 46 L. J. Ch. 43 ; 35 L. T. 7.50 : 25 W. R. 161 288. 825, 516 Hillman, Ex parte, Re Pumfrey (1879), 10 Ch. U. 622 ; 48 L. .J. Bk. 77 ; 40 L. T. 177; 27 W. R. .567 Hfi Hilton, Re, Gibbes t. Hale-Hinton, [1909] 2 Ch. 548 ; 79 L. .J. Ch. 7 : 101 L. T. 229 -'"''. -506 Hindmarsh, Re (1860),'l Dr. & Sm. 129 ; 1 L. T. (N. s.) 475 ; 8 \V. R.208 ; 127 R. R. 45 ^^^ Hinton v. Hinton (175.5), 2 Yes. Sen. 631 : Ambl. 277 ... . 206 Hinvesi-. Hinves (1844), 3 Hare, 609; 64 R. R. 446 229 Hirst's Mortgage, Re (1890), 45 Ch. D. 263 ; 60 L.J. Ch. 48 ; 68 L. T. 444 ; 38 W. R. 685 344 Kitchens v. Contrreve (1828), cited 1 Russ. k. Myl. 150 . . . .178 Hoarer. Osborne (1866), L. R. 1 Eq. .585 ; 85 L. J. Ch. 845 ; 12.1ur.(N-. s.) 243 ; 14 L. T. (n. S.) 9 ; 14 W. R. 383 ^" Hobbs r. Wayet (1887), 86 (^h. D. 256 ; 57 L. T. 225 ; 86 W. R. 78 . .480 Hobday v. Peters (No. 8) (1860), 28 Beav. 603 ; 126 R. R. 262 . . . 268 Hoblyn v. Hoblvn (1889), 41 Ch. D. 200 ; 60 L. T. 499 ; 38 W. R. 12 . . 99 Hobson, Re. W.alker r. Appack (1885), 53 L. T. 627 ; 55 L. J. Ch. 422 ; 34 W.R.70 . 234. 243 Hockey r. Western, [18981 1 Ch. 350: 67 L. J. Ch. 166 ; 78 L. T. 1 ; 46 W. R.312 ... -'89.361 Ix Table of Cases. PAGE Hodgkinson. Re, Hodgkinson v. HodgkinsoD, [1895] 2 Ch. 190 ; C4 L. J. Ch. (i6H : 72 L. T. G17 ; 48 W. K. 594 : 12 R. 297 . . . 432. 456 Hodgson, Ex jxirte (1812). 19 Vcs. 2(M! : 12 R. R. 171 ... ti8, 1((7 V. Smithson (185(;). 8 De G. M. c. R. G Ex, 243 ; 39 L. J, E.k, 167 ; 23 L, T. (x, S.) 309 184 Kendall v. Granger (1842), 5 Beav, 300 ; 11 !>. J, Cli, 405 ; 6 Jur. 919 ; 59 R. R. 507 20, 153 Kennedy v. De Trafford, [1897] A. C. 180 ; r>ii L. J. Ch. 413 ; 7(; L. T. 127 : 45W. R. 671 177, 181,323 Kenny's Trusts, i^^ [190G] 1 Ir. R. 531 399.401 Kenrick v. Beauclerk (Lord) (1802), 3 Bos. .V: T. 175 ; G R. R. 74(; . . 195 Kensil. i^r, [1908] W. N. 235 418 Kenworthy r. Bate (1K02), G Ves. 793: G R. R. 46 427 Kershaw, Jle, Whitakerr. Kershaw (1890), 45 Ch. D. 320 ; GO L. J. Ch. 9 ; 63 L. T. 203 ; 39 W. R. 23 430 Kevan r. Crawford (1877). G Ch. 1). 29 ; 16 L. .1. Ch. 729 ; 37 L. T. 332 ; 2G W. R. 49 113 Kilbeef. Sney.l (1828), 2 Moll. 186 293 Kilpin r. Kilpin (1834), 1 Myl. k K. 520 ; 36 R. R. 367 . . . t2, 165 356 65, 3.59 357 175, 316 196 16 41 , 87 512 169 39 78 Table of Cases. Ixv King,i^^, Sevvcll r. King (187!)), It Cli. 1). 17'J ; 4;i L. J. Ch. 7:5 ; 2S \V. [[. 34i 42, ir, y. Denison (1813), 1 Ves. & B. 260; 12 R. R. 227 . . 119, lol, 153 v. King (18r)7), 1 De G.&;J.6(J3 ; 27 L.J. Cli.2!) ; C, W. 11.85 ; 4 Jiir. (N. s.) 721 2!)2, 143, 444 V. MiiUins (1852), 1 Drew. 3U8 ; 20 L. T. (o. s.) 178 ; 94 R. R. (;(;7 . 441 King's Estate, .Se, (1888), 21 L. R. Ir. 273 84,153 Kiiigan w. Matier, [1905] 1 Ir. R. 272 i;{(; Kingdon v. Gastlemau;(l877), 25 W. R. 345 ; 4G L. J. Ch. 448 ; 3G L. T. 141 . 203, 2()8 Kingbam r. Kingham, [1897] 1 Ir. R. 170 251 ■ V. Lee (1840), 15 Sim. 390 ; 10 L. J. Ch. 49 ; 11 Jur. 4 ; 74 U. U. 103 . . 181 Kingston Cotton Mill Co. (No. 2), Re, [1890] 1 Ch. 331 ; 05 L. J. Ch.290 ; 73 L. T. 745 ; 44 W. R. 303 509 Kinloch v. Secretary of State for India (1880), 15 Ch. D. 1 ; 49 L. J. Ch. 571 ; 42 L.T. 007; 28 W. R. 019 . . 37 V. (1882), 7 App. Cas. 019 ; 51 L. J. Ch. 885 ; 47 L. T. 133 ; 30 W. R. 845 37 Kirlcman v. Booth (1848), 11 Beav. 273 ; 18 L. J. Cii. 25 ; 13 Jur, 525 ; 83 R. R. 1.58 212 Kirkwood v. Thompson (1805), 2 Hem. & M. 392 ; 34 L. J. Ch. 305 ; 11 Jur. (N. s.) 385 323 V. (1805), 2 De G. J. & S. 013 ; 12 L. T. (n. s.) Ill ; 13 W. R. 1052 323 Kirwan v. Daniel (1847), 5 Hare, 493 ; 10 L. J. Ch. 191 ; 11 Jur. 235 ; 71 R. R. 202 36 Knapman, Be, Knapman v. Wreford (1881), 18 Ch. D. 300 ; 50 L. J. Ch. 029 ; 45 L. T. 102 435 Knight V. Boughton (1844), 11 CI. & F. 513 ; 8 Jur. 923 ; 52 R. R. 74. ..15, 24, 29 • V. Bowyer (1857), 23 Beav. 009 ; 3 Jur. (N. s.) 908 . . . .55 V. Browne (1801), 7 Jur. (N. s.) 894 ; 4 L. T. (N. s.) 200 ; 9 W. R. 515 ; 30 L. J. Ch. 049 ; 12(5 R. R. 832 68 V. Knight (1840), 3 Beav. 148 ; 9 L. J. (n. s.) Ch. 354 ; 4 Jur. 839 ; 52 R. R. 74 15. 18, 24 V. iVIarjoribanks (1849), 2 Mac. & G. 10 ; 2 Hall & Tw. 308 ; 83 R. R. 100 319, 323 V. Plymouth (Earl) (1747), Dick. 120 ; 3 Atk. 480 .... 303 Knight's Trusts, Re (1859), 27 Beav. 45 ; 5 Jur. (N. s.) 320 ; 28 L. J. Ch. 025 ; 122 R. R. 307 . ..... 258, 444, 455 Will, Re (1884), 20 Ch. D. 82 ; 53 L. J. Ch. 223 ; 49 L. T. 774 ; 32 W. R. 336 380, 432 Knutt, Re, Bax r. Palmer (1887), 56 L. J. Ch. 318 ; 56 L. T. 101 ; 35 W. R. 302 430, 439 V. Cottee (1852), 16 Beav. 77 ; 16 Jur. 752 ; 90 R. R. 43 . . .401 Knox r. Gye(1872), L. R. 5 H. L. 656; 42 L. J. Ch. 234 . . . 180,323 Knox's Trust, Re, [1895] 1 Ch. 538 ; 64 L. J.Ch.402; 13 R.392 ; 43 W. R. 442 400 ; Re, [1895] 2 Ch, 483 ; 64 L. J. Ch. 860 ; 72 L. T. 761 ; 13 R. 395, n 400, 432 Kronheim -y. Johnson (1877), 7 Ch. D. 60; 47 L.J. Ch. 132 ; 37 L. T. 751 ; 26 W. R. 142 78 L. Labouchere v. Tapper (1857), 11 Moo. P. C. 198 ; 5 W. R. 797 , . .440 Lacey, Me parte (1802), 6 Ves. 025 ; R. R. 9 315 Lacou's Settlement, Re, Lacou v. Lacon, [1911] 2 Ch. 17 ; 80 L. J. Ch. 610 ; 104 L. T. 840 ; 27 T. L. R. 485 ; 55 Sol. J. 551 ... . 239 Lacy, ^e. Royal General Theatrical Fund Association r. Kydd, [1899] 2 Ch. 149 ; 08 L. J. Ch. 488 ; 80 L. T. 700 ; 47 W. R. 004 . . .490 Laing's Settlement, Re, Laing v. Radcliffe, [1899] 1 Ch. 593 ; 08 L. J. Ch. 230; 80 L. T. 228; 47 W. R. 311 -~^ Lake, Re, Mc parte Dyer, [1901] 1 K. B. 710 ; 70 L. J. K. B. 390 ; 84 L. T. 430 ; 49 W. R. 291 ; 17 T. L. R. 290 ; 8 Manson, 145 . . . . Iu2 T. e Ixvi Table of Cases. PAGE Lake, llf. J> jxirfr Uowe. [1!»03] 1 K. P.. 4:» ; 72 L. J. K. P.. 213: S8 L. T. 31 ; 51 AV. 11. 4 189 Lander r. Weston (1855). 3 Drew. 389 : 25 L. J. Ch. 235 : 2 Jur. (N..s.)58 ; 4 W. R. 158 ; 20 L. T. (O. s.) 254 ; lO(i R. R. 370 . . 400, 4G3 and P.agley's Contract, i^r, [1892] 3 Ch. 41 ; 01 L. J. Ch. 707 ; G7 L. T. 521 205 Lands Allotment Co., lie, [1894] 1 Ch. 010 : 03 L. J. Cli. 291 ; 70 L. T. 286 ; 42 W. R. 404 : 7 R. 115 ; 1 Manson, 107 ... . 184, 484 Lane r. Debenham (1853), 11 Hare, 188 ; 1 W. R. 405 ; 17 Jur. 1005 ; 90 R. R. 037 365 r. Diijhton (1702), Arabl. 409 155. 472 Lane'sTrust, i;^(1854), 24 L. T. (0. s.) 181 443 Langdale, Mr, [1901] 1 Ch. 3 ; 70 L. J. Ch. 38 ; 83 L. T. 451 ; 49 "W. R. 177 386, 403 Lan^fordv. Auger (1845). 4 Hare, 313 309 ^ V. Gascoyne (1805), 11 Ves. 333 ; 8 R. R. 170 . . . 292, 308 Langham ;•. Sandford (1811), 17 Ves. 435 149.150 Lantrston r. Ollivant (1807). G. Coop. 33; 14 R. R. 213 .... 278 Lashmar. lie. Moody v. Peufold, [1891] 1 Ch. 258 : 00 L. J. Ch. 143 ; 04 L. T. 333 191,190,200,207,210 Lassells v. Cornwallis (1704), 2 Yern. 4(;5 426 Lassence v. Tierney (1849), 1 Mac. & G. 551 ; 2 Hall & T\v. 115 ; 14 Jur. 182 78,81,100,108,109,171 La Touche r. Lucan (Earl of) (1840), 7 CI. & F. 772 ; 2 Dru. & Wal. 432 ; West, 477 30 Lavendar r. Blackston (1075), 3 Keb. 520 114,110 Law r. Law (173.5). 3 P. Wuis. 391 150 Leahy r. Ue Molcvus. [1890] 1 Ir. R. 20(; 484 Leake's Trusts, lie (1803), 32 Beav. 135 ; 9 Jur. (X. s.) 453 ; 7 L. T. (x.s.) 816 ; 11 W. R. 3.52; 1 N. R. 417 443,4.56 Learoyd v. Whiteley (1887), 12 App. Cas. 727 ; 57 L. J. Ch. 390 : 58 L. T. 93 ; 36 W. R. 721 258, 270, 279, 280, 283, 285, 297,433, 401,478 Leet'. Brown(1798), 4 Ves. 302; 4 R. R. 208 328,334 t\ Lee (1870), 4 Ch. D. 175 ; 46 L. J. Ch. 81 ; 3(; L. T. 138 ; 25 W. R. 225 131 V. Sankey (1873), L. R. 15 Eq. 204 ; 27 L. T. (x. s.) 809 ; 21 W. dl. 286 . 307, 308. 509, 512 V. Young (1843), 2 Y. & Coll. C. C. .532 ; 12 L. .). Ch. 478 ; 7 Jur. 761 ; 00 R. R. 258 273 Lcedham r. Chawncr (1858). 4 Kay & J. 458 ; 110 R. R. 70(> . 217. 429, 434 Leeds r. Leeds (1880), 57 L. T. 373 93 Lees' Settlement Trusts, Ite, [1890] 2 Ch. 508 : 05 L. J. Ch. 770 ; 75 L. T. 178 ; 44 W. R. 080 404 Legg r. Mackrell (1860), 2 Uc G. F. ^: J. 551 ; 4 L. T. (x. s.) 508 ; 129 R. R. 194 189, 307 Legh's Settled Estates. Be. [19(l2] 2 Ch. 274 ; 71 T-. .1. Ch. 008 ; SO L. T. 884 ; 50 W. R. 570 ; 00 J. P. 0(10 .... 183,248,2.53,254,255 Leigh r. Leigh (1880), 35 W. R. 121 ; 50 L. J. Ch. 125 ; 55 L. T. 034 . . 282 Leinster (Duke of), Jfe (1889), 23 L. R. Ir. 152 251 Le Lievrc r. Gould, [1893] 1 Q. B. 491 ; 02 L. J. Q. B. 353 ; 68 L. T. 020 ; 41 W. R. 408; 57 J. P. 4H4 ; 4 R. 274 112 Lemann's Trusts, Jle (1883), 22 Ch. D. 033 ; 52 L.J. Ch. 500 ; 48 L. T. 389 ; 31 W. R. 520 373, 389 Le Marchant r. Le Marchant (1874), L. R. 18 E-i. 414 ; 22 W. R. 839 . 25, 27 Lenchr. Lench (1805), 10 Ves. 511 159,492 Leon, 7^', [1892] 1 Ch. 348 ; 60 L. T. 390 404 Leonard r. Leonard (1910J, 44 Ir. L. T. 155 54 Table of Cases. Iwii I'AfiK Lepine, i^c, Dowsett r. Culver, [181)2] 1 Cli. L'lO ; (il L. J. ch. \-,:\- cc L. T. MO 220, 227 Leslie, Ite (isrc), 2 Ch. D. IS.j ; 45 L. J. Ch. G(kS ; :54 L. T. 2:ii) ; 21 W. It. ' r)i« . . . . 2.-)7, ;{:{2 r. Baillic (181H), 2 Y. & Coll. C. C.'Jl ; 12 L.,1. Ch. 1.-/5 ; 7 Jiir. 77 ; (;0 K. U. 51 2.S7, 28!l r. Leslie (1835), LI. & G. t. Sugd. 1 3^2 Leslie's llassop Estates, i^t', [1911] 1 Ch. Oil ; 27 T. L. 11. 352 ; 55 Sul .L 384 417,118 Letterstedt v. Broers (1884), 9 App. Cas. 371 ; 53 L. .1. P. C. 44 ; 51 I.. T. 1G9 373, 390 Lever, lie, Cordwell r. Lever, [1897] 1 Ch. 32 ; 00 L. J. Ch. (;0 ; 75 L. T. 383 ; 45 W. R. 172 250 Leveridge, Be, Spain r. Lejoindre, [1901] 2 Ch. 830 ; 71 L. J. Ch. 23 ; 85 L. T. 458 ; 50 W. K. 205 3-10 Leveson-Gower's Settled Estate, i^e, [1905] 2 Ch. 95 ; 74 L.J. Ch. 540 : 92 L. T. 830 ; 53 W. li. 524 . • 250, 255 Lewellin r. Mackworth (1740), 2 Eq. Cas. Abr. 579 204 Lewis, Ko parte (1819), 1 Gl. & J. 09 342, 344, 470 , Be, Davies r. Harrison, [1907] 2 Ch. 290 ; 70 L.J.Ch.539 ; 97 L.T. 636 244 , Be, Lewis r. Lewis, [1910] W. N. 217 ; 103 L. T. 495 ; 55 Sol. J. 29 .......... 313 V. Green, [1905] 2 Ch. 340 ; 74 L. J. Ch. 082; 93* L. T. 303 ; 54* W. R. 93 450 r. Hillman (1852), 3 H. L. Cas. 007 : 88 K. 11. 233 .... 320 r. Madocks (1803), 8 Ves. 150 ; 7 11. K. 10 35 r. (1810), 17 Ves. 48 ; 7 R. K. 10 ... . 50. 133 r. Nobbs (1878), 8 Ch. D. 591 ; 47 L. J. Ch. 002 ; 20 W. R. 031 . 214, 268, 304, 307, 308. 309 V. Trask (1882), 21 Ch. D. 802 439 Ley v. Ley (1808), L. R. 6 Eq. 174 ; 37 L. J. Ch. 328 ; 18 L. T. (n. S.) 120 ; 10 W. R. 509 247 Liddiard, Be (1880), 14 Ch. D. 310 ; 49 L. J. Ch. 373 ; 42 L. T. 021 ; 28 W. R. 574 394 Life Association of Scotland r. Siddal (1801), 3 De G. F. &: J. 58 ; 7 Jur. (N. s.) 785 ; 4 L. T. (N. s.) 311 ; 9 W. R. 541 492 Lightbody, Be (1885), 33 W. R. 452 ; 52 L. T. 40 394 Liles V. Terry, [1895] 2 Q. B. 079 ; 65 L. J. Q. B. 34 ; 73 L. T. 428 ; 44 W. R. 110 98 Lindo V. Lindo (1839), 8 L. J.(n. s.) Ch. 284 ; 1 Beav. 490 ; 49 R. R. 419 498 Lingard, Be. Lingard r. Squirrell, [1908] VV. N. 107 23i) V. Bromley (1812), 1 Ves. .V B. 114 ; 12 R. R. 195 . . 500, 5u3 Linsley, Be, Cattley v. West, [1904] 2 Ch. 785 ; 73 L. J. Ch. 841 : 53 W. R. 172 324. 504 Linzee's Settlement, Be (1850), 23 Beav. 241 ; 113 R. R. 121 . . 357, 3(;i Lippincott r. Smyth (1860), 29 L. J. Ch. 520 ; 6 Jur. (N. s.) 311 ; 2 L. T. (N. s.) 79 ; 8 VV. R. 330 ; 121 R. R. 322 338 Lister v. Hodgson (1807), L. R. 4 Eq. 30 ; 15 W. R. 547 .... 100 Little r. Neil (1802), 10 W. R. 592 ; 31 L. J. Ch. 627 21 Livesey *'. Livesey (1827), 3 Russ. 287 ; 6 L. J. (o. s.) Ch. 13 . . . 510 Llanover (Baroness), Be, Herbert v. Freshtield (No. 2), [1903] 2 Ch. 330 ; 72 L. J. Ch. 729 ; 88 L. T. 850 ; 61 W. R. 015 ; 19 T. L. R. 524 . . 67 Lloyd V. Attwood (1859), 3 De G. & J. 614 ; 5 Jur. (N. S.) 1322 ; 33 L. T. (o. s.) 209 ; 121 R. R. 252 498 r. Banks (1868), L. R. 3 Ch. 488 ; 37 L. J. Ch. 881 ; 10 W. R. 988 . 522 V. Lloyd (184.3), 4 Dru. & War. 354 ; 2 Con. & L. 592 . . . 206 V. (1852), 2 Sim. (N. s.) 255 ; 21 L. J. Ch. 590 ; 10 Jur. 300 : 19 L. T. (O. s.) 84 ; 89 R. R. 284 . . . 60,61,71 V. (1869), L. R. 7 Eq. 458 ; 38 L. J. Ch. 458 ; 20 L. T. (N. s.) 898 ; 17 W. R. 702 l''l Lloyd's Bankw. Bullock, (1896), 2 Ch. 192 ; 65 L. J. Ch. 080; 74 L. T. 687 ; 44 W. R. 633 ; 12 T. L. R. 435 523, 527 Banking Co. v. Jones (1885), 29 Ch. D. 221 ; 54 L. J. Ch. 931 ; 52 L. T. 409 ; 33 W. R. 781 f)23 Trusts, Be, [1888] W. N. 20 386 e2 Ixviii Table of Cases. PAfiE Llovds ;•. Harper (1880), IG Ch. D. 290 ; oU L. J. Cli. 140 ; 43 L. T. 4S1 : 2i) ■ W. K. 452 38, 39, 51 Loch f. Bagley (1867), L. R. 4 Eq. 122 : 15 W. 11. I1U3 . . 120,128,358 Lockhart v. Reilly (185G). 25 L. J. Ch. 097 ; 3 W. K. 227 . . . 501, 504 V. (1857), 1 De G. A: J. 464 : 27 L. J. Cli. 54 . 266, 270, 282 Locking v. Parker (1872), L. K. 8 Ch. 3U ; 42 L. J. Ch. 257 ; 27 L.T. (N.S.) 635 : 21 W. E. 113 491 Lofthouse, Be (1885), 29 Ch. D. 921 ; 54 L. J. Ch. 1087 ; 53 L. T. 174 ; 33 AV. R. 668 328 London and Canadian Loan and Agency Co. r. Duggan, [1893] A. C. 50G : 63 L. J. P. C. 14 ; 1 R. 413 518, 522 and County Banking Co. r. Goddard, [1897] 1 Ch. 642 ; 66 L. J. Ch. 261 ; 76 L. T. 277 ; 45 W. R. 310 376 r. London and River Plate Bank (1888), 21 Q. B. D. 535 ; 57 L. J. Q. B. 601 ; 61 L. T. 37 ; 37 W. R. 89 155 and South Western Rail. Co. r. Gomm (1882), 20 Ch. D. 562 ; 51 L. J. Ch. 530 ; 46 L. T. 449 ; 30 W. R. 620 .... 61 Joint Stock Bank r. Simmons. [1892] A. C. 201 : 61 L. J. Ch. 723 ; 66 L. T. 625 ; 41 W. R. 108 ; 56 J. P. 644 ; 8 T. L. R. 478 . 528 ■ Syndicate v. Lord (1878), 8 Ch. D. 84 ; 38 L. T. 329 ; 26 W. R. 427 477 Loutr, i?c,'Lovegrove r. Long, [1901] W. N. 166 363 Loiigley V. Longlev (1871), L. R. 13 Eq. 133 ; 41 L. J. Ch. 168 ; 25 L. T. (N. S.) 736 ; 20 W. R. 227 151 Longmate v. Ledger (1860), 2 Giff. 157 ; 6 Jur. (N. s.) 481 ; 8 W. R. 386 ; 128 R. R. 72 96 Longmore r. Elcum (1843). 2 Y. & Coll. C. C. 363 ; 12 L. J. Ch. 469 ; 60 R. R. 192 329 Longton f. Wilsbv (1897), 76 L. T. 770 176 Longuet r. Hocklev (1870), 22 L. T. (X. S.) 198 257 Lonsdale (Earl ofyc. Beckett (1850), 4 De G. & Sm. 73 ; 19 L. J. Ch. 342 ; 16 L. T. (O. s.) 229 ; 87 R. R. 292 381 Lord i-. Bunn (1843). 2 Y. k Coll. C. C. 98 ; 60 R. R. 56 . . . 290, 362 and FuUerton's Contract, lie, [1896] 1 Ch. 228 ; 65 L. J. Ch. 184 : 73 L. T. 689 ; 44 W. R. 195 188.192 Love, Be, Hill r. Spurgeou (1885), 29 Ch. D. 348 ; 54 L. J. Ch. 816 ; 52 L. T. 398 ; 33 W. R. 449 432, 433 Loveland, Be. Loveland r. Lovelaud, [1906] 1 Ch. 542 ; 75 L. J. Ch. 314 ; 94 L. T. 336 ; 22 T. L. R. 321 70 Low i: Bouverie, [1891] 3 Ch. 82 ; 60 L. J. Ch. 594 ; 65 L. T. 533 ; 40 W. R. 50 214, 323, 326 V. Peers, Wilmot's Opinions and Judgments. 364 .... 60 Lowndes, Be(lSS7), 18 Q. B. D. 677 ; 56 L. J. Q. B. 425 ; 56 L. T. 575 ; 35 W. R. 549 ; 4 Morrell, 139 102 V. Norton (1877). 6 Ch. D. 139 ; 46 L. J. Ch. 613 ; 25 W. R. 826 . 183 LowTy V. Fulton (1838). 9 Sim. 104 ; 47 R. R. 188 ... . 191, 192 Lowson r. Copeland (1787), 2 Bro. C. C. 156 262, 455 Luwther i: Carlton (1741), 2 Atk. 242 ; Cas. t. Talb. 186 . . . . 526 Lubbock r. British Bank of South America, [1892] 2 Ch. 198 : 61 L. J. Ch. 498 ; 67 L. T. 74 ; 41 W. R. 1U3 224 Lucan (Earl of), Be, Hardinge r. Cobden (1890), 45 Ch. D. 470 ; 60 L. J. Ch. 40 ; 63 L. T. 538 ; 39 W. R. 90 42 Luddv's Trustee /•. Peartl (1886), 33 Ch. D. 500 ; 55 L. J. Ch.884 ; 55 L. T. 137 ; 35 W. R. 44 322 Luders v. Anstey (1799). 4 Yes. 5Ul ; (1800), 5 Yes. 217 : 4 R. R. 276 . 35, SO Luke r. South Kensington Hotel Co. (1879), 11 Ch. D. 121 ; 48 L. J. Ch. 361 ; 40 L. T. 638 ; 27 W. R. 514 295, .305, 306 Lulham, Be, Brinton /•. Lulham (1885), 53 L. T. 9 ; 33 W. R. 788 . 175, 316 Luriham /•. Blundeli (1857), 27 L. J. Ch. 179 ; 4 Jur. (N. S.) 3 ; 6 \V. R. 49 ; 114R. R. 522 305 Lupton r. White (1808), 15 Yes. 432 ; 10 R. R. 94 472 Lush's Trusts, Be (1869), L. R. 4 Ch. 591 ; 38 L. J. Ch. 650 ; 21 L. T. (N. s.) 376 ; 17 W. R. 974 496 Lyell r. Kennedy (1H89), 14 App. Cas. 437 ; 59 L. J. Q. B. 268 ; 62 L. T. 77 ; 38 W. R. 353 509 Lynch Blosse, Be. Rickards r. Lynch Blosse, [1899] W. N. 27 . . 240, 463 Lynn v. Beaver (1823), Turn. k. Russ. 63 ; 23 R. R. 185 ... . 150 Table of Cases. Ixix Lyon V. Mitchell, [1800] W. X. 27 ■■''/(' Lysiisht r. Edwards (ISTC), 2 Cli. D. 100 ; IT, L. J. Ch. o.jl ; 31 L T (N. S.) 7S7 ; 24 W. R. 778 3^;.) Lyse v. Kingdon (1844), 1 Coll. C. C. 184 ; 8 Jur. 418 . . . ! 408 Lyster r. Burroughs (1837), 1 Dru. & Wal. 149 ; 56 R. II. 101 . . [ 3.5 M. M., Be, [1890] 1 Ch. 79 ; 08 L. J. Ch. 80 ; 70 L. T. 4.VJ ; 47 W. 11. 207 ; 1.5T. L. K.54 387, 300 Maberley v. Turton (1808), 14 Ves. 490 328, 333 Macdonald v. Irvine (1878), 8 Ch. D. 101 ; 47 L. J. Ch. 404 ; 38 L. T. ir,") ; 26 W. R. 381 220, 230, 250 Macdonnell v. Harding (1834), 7 Sim. 178 ; 4 L. J. (n. s.) Ch. 10 ; 40 R. R. 95 305 Macduff, Be, Macduff r. Macduff, [1890] 2 Ch. 451 ; 05 L. J. Cli. 700 ; 74 L. T. 700 ; 45 W. R. 154 . 19, 20 Mackay, Be, Griessemann r. Carr, [1911] 1 Ch. 300 ; 80 L. .J. Ch. 237 ; 103 L. T. 755 303, 484 V. Douglas (1872), L. R. 14 Eq. 106 ; 41 L. J. Ch. 539 ; 20 L. T. (n. s.) 721 ; 20 W. R. 652 107 Mackenzie, Be, (1867), L. R. 2 Ch. 345 ; 36 L. J. Ch. 320 ; 10 L. T. (N. s.) 138 ; 15 W. R. 662 138, 144, 145 Mackenzie's Trusts, Be (1883), 23 Ch. D. 750 ; 52 L. J. Ch. 726 ; 48 L. T. 936 ; 31 W. R. 948 275 Mackett i'. Mackett (1872), L. R. 14 Eq. 49 ; 41 L. J. Ch. 704 ; 20 W. R. 860 28 Mackie r. Herbertson (1884), 9 App. Cas. 3U3 54 Mackinnon r. Stewart (185U), 1 Sim. (x. s.) 70 ; 20 L. J. Ch. 49 ; 89 R. R. 24 30 Mackintosh v. Pogose, [1895] 1 Ch. 505 ; 04 L. .J. Ch. 274 : 72 L. T. 251 ; 43 W. R. 247 ; 2 IVJanson, 27 ; 13 R.254 . . . 101.102,104,108 Mackreth v. Symmons (1808), 15 Ves. 329 ; 2 Wh. & Tu. Lead. Cas. (7th ed.) 926 ; 10 R. R. 85 180,518 Maclean's Trusts, Be (1874), L. R. 19 Eq. 274 ; 44 L. J. Ch. 145 ; 32 L. T. (N. s.) 632 ; 23 W. R. 206 444 Macnamara v. Carey (1807), 1 Ir. R. Eq. 9 ; 15 W. R. 374 . . , . 203 V. .Jones (1784), Dick, 587 431 M'Ardler. Gaughran, [1903] 1 Ir. R. 106 513 McBlain r. Cross (1871), 25 L.T. (N. s.) 804 80 McCallum, Be, McCallum v. McCallum, [1901] 1 Ch. 143; 70 L. J. Ch. 206 ; 83 L. T. 717 ; 49 W. R. 129: 17 T. L. R. 112 . . . 484,489 McCormick v. Grogan (1869), L. R. 4 H. L. 82 ; 1 Ir. R. Eq. 313 ; 17 W. R. 961 26, 79, 84, 85, 185 McClure's Trusts, Be, Carr v. Commercial Union Insurance Co., Ltd., [1906] W. N. 200 ; 76 L. J. Ch. 52 ; 95 L. T. 704 ; 23 T. L. R. 42 . 2.50, 257 McDonneU'. White (1865), 11 H. L. Cas. 570 494,497 McEacharn, Be, Gambles r. McEacharn, [1911] W. N. 23 ; 103 L. T. 900 ; 55 Sol. J. 204 251 McEwan r. Crombie (1883), 25 Ch. D. 175 ; 53 L. J. Ch. 24 : 49 L. T. 49:t ; 32W. R. 115 4:!9 McDonnell r. Hesilrige (1852), 16 Beav. 346 ; 22 L. J. Ch. 312 ; 16 .Jur. 1148 ; 1 W. R. 71 ; 20 L. T. (o. s.) 104 ; 90 R. R. 105 . . . 93, 151 M'Fadden ». .Jenkyns (1842), 1 Ph. 153 ; 12 L. J. Ch. 140 : 7 Jur. 27 ; 65 R. R. 354 . . 78.82 M'Gachen v. Uew (1851), 15 Beav. 84 ; 92 R. R. 315 .... 203, 50.» M'Machin r. Hibernian Bank. [1905] 1 Ir. R. 200 09 M'Mahon, i?6, M'Mahonr. M'Mahon, [1001] 1 Ir. R. 480 .... 33 M'Queen v. Farquhar (180.5). 11 Ves. 467 ; 8 R. R. 212 . . 335, 337, 518 Maddever, Be, Three Towns Banking Co. v. IMaddever (1884), 27 Ch. D. 523 ; 53 L. J. Ch. 008 ; 52 L. T. 35 ; 33 W. R. 286 ... • 1<'5 Maddison v. Alderson (18S3). 8 App. Cas. 467 ; 52 L. J. Q. B. 737 ; 49 L. T. 303 ; 31 W. R. 820 ; 47 J. P. 821 35 Ixx Table of Cases. PAGE MacMock. lir, Butt r. Wnt;lit. [189i»] 2 Ch. 588: 68 L. J. Cli. Gr>r. ; 81 L. T. S20 : 47 W. K. 08-4 133 , Be, Llewelyn v. Wasliinpton, [11)02] 2 Ch. 220 ; 71 L. J. Ch. .5(;7 : 86 L. T. 644 : 50 W. K. 598 85 Maddocks r. Wren (1680). 2 Ch. Kep. 100 181 Maddy, lie, Matldy r. Maddy, [1901] 2 Ch. 820 ; 71 L. J. Ch. IS ; 85 L.T. 341 88. 125 Mafjrane r. Archbold (181.3), 1 Dow, 107 ; 14 K. R. 15 .... 266 ]Magrath r. ]\I<)rehead (1871), L. R. 12 Eq. 491 ; 41 L. J. Ch. 120 ; 24 L. T. (N. S.) 868 358 Maguirer. Scully (1828). 2 Hog. 113 123 Mahon v. Stanhope (1809), cited 2 Sug. Pow. (8th cd.) 863 . . . 222 Maitland r. r.ateraan (1844), 13 L. .1. Ch. 273 ; 63 11. K. 206 . . . 259 Malam. It(\ Malam r. Kitchens, [1894] 3 Ch. 578 ; 63 L. J. Ch. 797 ; 71 L. T. 655 : 13 R. 38 223 Malcolm r. O'Callaghan (1837), 3 Myl. & Cr. 52 : 1 .Jur. 838 ; 45 1!. ]{. 210 431 Malim c. Keighley (1795), 2 Ves. .Jun. 333, 529 ; 2 R. R. 229 . . 24, 29 Mallott c. Wilson, [1903] 2 Ch. 494 ; 72 L. J. Ch. 664 ; 89 L. T. 522 . 38, 40,118 Manchester Roj'al Iiifirmarv, Up, Mancliester Royal Infirmarv r. Att.-Gen. (1889), 43 Ch. D. 420 ■. 59 L. .1. Ch. 370 ; 62 L. T. 419 ; 38 W. R. 460 275 Mangles r. Dixon (1852), 3 H. L. Cas. 702 ; 88 R. R. 296 . . . .519 Manning's Trusts, Re (1854), Kay, App. xxviii ; 2 E(i. R. 221 ; 2 "NV. R. 289 .......... 399 Manscl r. Norton (188.3), 22 Ch. D. 769 ; 52 L. .J. Ch! 357 ; 48 L. T. 654 \ 31 W. R. ,325 249 Manscll r. Mansell (1732), 2 P. Wms. 678 ; Cas. t. Talb. 252 . . . 525 Mansfield r. Shaw (1818), 3 Madd. 100: 18 R. R. 201 . . . .478 Mant r. Leith (1852). 15 Beav. 524 ; 21 L. J. Ch. 719 : 16 Jur. 302 ; 92 R. R. 535 496 Mara r. Browne, [1895] 2 Ch. 69 ; 64 L. ,1. Ch. 594 ; 72 L. T. 765 . 485, 507 V. , [1896] 1 Ch. 199 ; 65 L. J. Ch. 225 ; 73 L. T. 638 ; 44 W. R. 330 485, 512 March v. Russell (1837), 3 Myl. & Cr. 31 ; (J L. .J. (x. .s.) Ch. 303 ; 1 Jur. 588 ; 45 R. R. 196 492 IMarker r. Marker (1851), 9 Hare, 1 ; 20 L. J. Ch. 246 : 15 Jur. (;f)3 . . 493 Marlborough (Duke of), 7/c. Davis r. Whitehead, [1894 J 2 Ch. 133: 63 L. J. Ch. 471 : 70 L. T. 314 : 42 W. R. 456 ; 8 R. 242 . . . 79. 86 Marler r. Tommas (1873), L. R. 1 7 E;5rtr^^ (1744). 1 Atk. 1.58 205 r. Hunter (1822), 6 Madd. 295 462 Marshal v. Crutwell (1875). L. R. 20 Eq. 328 ; 4 4 L. J. Ch. 504 . . . 163 Marshall t. Crowther (1874), 2 Ch. D. 199 ; 23 W. ]i. 210 . . . 216, 247 V. Gingell (1882), 21 Ch. D. 790 ; 51 L. J. Ch. 818 ; 47 L. T. 8.59 : 31 W. R. 63 195, 199, 200 r. Hollowav (1820). 2 Swans. 432 ; 19 R. R. 94 .... 312 V. Sla. Cadogan (Lord) (1810), 17 Ves. 485 ; 13 R. R. 270 . 190 V. (1816), 19 Ves. 635 ; 2 Mer. 3 ; 13 R. R. 270 492 Moody, Re, Woodroffe r. Moody, [1895] 1 Cli. 101 ; 64 L. J. Ch. 174; 72 L. T. 190 ; 43 VV. R. 462 ; 13 R. 13 352 Moore, Re. McAlpine r. Moore (1882), 21 Ch. D. 778 : 30 W. R. 839 . 383, 389, 391 ,7i:f?, Moore r. Johnson (1885), 54 L.J. Ch. 432 . . . 244,245 ^Jle, Prior i: Moore, [1901] 1 Ch. 936 ; 70 L. J. Ch. 358 ; 84 L. T. .501 ; 49 W. R. 484 : 17 T. L. R. 3.56 .... 19, 64, 77 , Re, Trailord r. Maconochie (1888), 39 Ch. D. 116 ; 57 L. J. Ch. 936 ; 59 I;. 'J'. 681 ; 37 W. R. 83 ; 52 J. P. 596 .... 70 r. Darton (1851), 4 De G. & Sm. 517 ; 20 L. J. Cli. 62(1 ; 87 R. R. 464 15, 43 r. Frowd (1837), 3 Mvl. & Cr. 45 ; 6 L. J. (n. s.) Ch. 372 ; 1 Jur. 653 ; 45 R. R. 20.5 312 f. Hart (1683), 1 Vern. 110, 201 80 V. Knight. [1891] 1 Ch. 547 ; 60 L. J. Cli. 271 ; 63 L. T. 831 ; .39 W. R. 312 490, 513 ?). M'Glynn, [1904] 1 Jr. R. 331 439 r. Ulster Bank (1909), 43 Ir. L. T. 136 220 Moorccroft r. Dowding (1725), 2 P. Wms. 314 ; 2 Eq. Cas. Abr. 746, pi. 3 . 80 Moravian Society, The, Re (1858), 26 Beav. 101 ; 4 Jur. (N. s.) 703 ; 6 W. R. 851 ; 122 R. R. 45 374, 378 Mordan, Re, Legg r. Mordan, [1905] 1 Cli. 515; 74 L. J. Ch. 319 : 92 L. T. 488 ; 53 W. U. 599 272 Table of Cases. Ixxiii PAOK More r. Maliow (1663), 1 Ch- C^'s. :?l ; 2 Freem. Ch. C;is. 17.-. . . r,18 r. More (1889), 87 W. K. 414; 6(J L. T. 626 -j-j Morgan, 7!ilc;;«/Ye (1804), 10 Ves. 101 ;u;;) ,Ee, Pillgrem r. Pillgrem (1881), 18 Ch. D. 93 ; .")() 1.. .J. Ch. 831 ; 45 L. T. 183 ; 30 W. R. 223 17.->, r,26 r. Elford (1876), 4 Ch. D. 3.-)2 ; 2") W. R. 136 . . . . ',m V. M.illcson (1870), L. R. 10 Eq. 47.5 ; 39 L. J. Ch. 680 ; 23 L. T. (N. s.) 336; 18 W. R. 112.T 41 r. Stephens (1861), 3 Giff. 226 ; 7 Jur. (N. s.) 701 ; 4 L. T. (n. s.) 614 512 r. Swansea Urban Sanitary Authnritv (1878), 9 Ch. D. 582 ; 27 W. R.283 ' 368 Morice v. Bishop of Durham (1804), 9 Ves. .399 ; 7 R. R. 232 . . 20, 153 V. (1805), 10 Ves. 522 ; 7 R. R. 232 . . . 153 Morland r. Cook (1868), L. R. 6 Eq. 252 ; 37 L. J. Ch. 825 ; 18 L. T. (x. .'^.) 496 ; 16 W. R. 777 525 Morley, Be, Morley v. Haig, [1895] 2 Ch. 738 ; 64 L. .J. Ch. 727 ; 73 L. T. 151 ; 44 W. R. 140 ; 13 R. 680 .... 234, 243, 250 V. Loughnan, [1893] 1 Ch. 736 ; 62 L. J. Ch. 515 ; 68 L. T. 619 ; 3 R. 592 92, 95, 97 V. Morley (18.55), 25 L. ,T. Ch. 1 ; 5 Dc G. M. & G. 610 ; 1 .Jur. (N. s.) 1097 ; 4 W. R. 75 ; 26 L. T. (O. s.) 99 ; 104 R. R. 223 . . 182 r. Rennoldson (1843), 2 Hare, 570 ; 12 L. J. Ch. 372 ; 7 Jur. (x. s.) 938 ; 62 R. R. 236 60, 72 Morley's Will, lie (1852), 10 Hare, 293 ; 1 W. R. 90 ; 90 R. R. 379 . . 3(19 Morris, Be, Buelinill v. Morris (188.5), 52 L. T. 462 ; 54 L. J. Ch. 388 ; 33 W. R. 445 276 V. Livie (1842), 1 Y. & Coll. C. C. 380 ; 11 L. J. Cli. 172 ; 57 R. R. 391 514 r. Morris (1858), 4 Jur. (n. s.) 802 ; 111 R. R. 909 . . . .267 Morrison, Be, Morrison r. Morrison, [1901] 1 Ch. 701 ; 70 L. J. Ch. 399 ; 84 L. T. 383 ; 49 W. R. 441 ; 8 Manson, 210 ; 17 T. L. R. 330 . . 218 Morse r. Royal (1806), 12 Ves. 3.55; 8 R. R. 338 315 Mortimer y. Ireland (1847), 11 Jur. 721 ; 77 R. R. 74 370 Mortlock- r. Buller (1804), 10 Ves. 292; 7 R. R. 417 222 Mortlock's Trust, Be (1857), 3 Kay & J. 456 ; 26 L. J. Ch. 671 ; 5 ^V. R. 748 67 Morton v. Tewart (1842), 2 Y. & Coll. C. C. 67 ; 60 R. R. 35 . . 44, 80 and Hallett, Be (1880), 15 Ch. D. 143 ; 49 L. J. Ch. 559 ; 42 L. T. 602 ; 28 W. R. 895 370, 372 Mosley v. Ward (1805), 11 Ves. 581 ; 8 R. R. 249 463 Moss, ExjJarte (1849), 3 De G. & Sm. 599 ; 18 L. J. Bk. 17 ; 13 Jur. 866 . 181 v. Cooper (1861), 1 Johns. &H. 3.52 ; 4 L. T. (n.s.)790 ; 128 R. R. 410 85 Moss's Trusts, Be (1888), 37 Ch. D. 513 ; 57 I.. J. Ch. 423 : 58 L. T. 168 ; 36W. R. 316 384,385 Motz V. Moreau (1859), 13 Moo. ]'. C. 376 ; 8 W. R. 395 .... lOO Moulton, Be, Grahame v. Moulton (1906), 94 L. T. 454 ; 22 T. L. R. 380 . 99 Mousley r. Carr (1841), 4 Bear. 49 ; 10 L. J. Ch. 260 ; 55 R. R. 13 . . 240 Mower r. Orr (1849), 7 Hare, 473 ; 18 L. J. Ch. 361 ; 13 Jur. 421 : 82 R. R. 191 336 Moxham r. Grant, [1900] 1 Q. B. 88 ; 69 L. J. Q. B. 97 ; 81 L. T. 431 ; 48 W. R. 130 ; Id T. L. R. 34 ; 7 Manson. 65 18.5, 502 Moyle y. Moyle(1831), 2 Russ. & Myl. 710; 34 R. R. 186 . . 211,268,305 Mucklow r. Fuller (1821), Jac. 198 ; 23 R. R. 29 190,499 Muffett, Be, Jones v. Mason (1888), 39 Ch. D. 531 ; 57 L. J. Ch. 1017 ; 59 L. T. 499 ; 37 W. R. 9 -'17 Munch V. Cockerell (1839), 5 Myl. & Cr. 178 ; 9 L. J.(x.s.) Ch. 153 ; 4 Jur. 140 ; 48 R. R. 270 :^<*''' Murphy v. Doyle (1892), 29 L. R. Ir. 333 27<; Murphy'sTrust,/^^, [1900] llr. R. 145 329 Murray r. Watkins (1890), 62 L. T. 796 -'<»-! Mus.soorie Bank r. Raynor (1882), 7 App. Cas. 321 ; 51 L. J. 1'. C. 72 : 16 L. T. 6.33 ; 31 W.'R. 17 16,18,24.2.5,28 Mutton V. Peate, [1900] 2 Ch. 79 ; 69 L. J. Ch. 484 ; 82 L. T. 440 ; 48 W. R. 486 475, 520 Mutual Provident Land and Building Socisty r. Macniillan (1889), 11 App. Cas. 596 ; 59 L. J. P. C. 22 ; 61 L. T. 486 -15 Ixxiv Table of Cases. PACJK Mycock r. P.eatsnii (187')), 13 Ch. L). 381 ; I'.i I.. J. Cli. 1l'7 : 1.' L. T. Ul ; 2S W. K. 3111 IHl Myler r. Fitzpatrick (1822), 6 Madd. 360 ; 23 11. R. 247 . . . .oil N. Nail r. Punter (1832). o Sim. r),-)5 ; 3.") 11. R. 188 lt)2, \9i Nairn r. Prowse (18()2), G Ves. 7.")2 ; (J K. R. 37 r.l Nandiker'. Wilkes (171.5), Gilb. Efi. Rep. 114 123 Nanney v. Morgan (1887). 37 Ch. 1). 340 ; :>7 L. .J. Ch. 311 : r>S L. T. 238 ; 3*; W. R. (577 42 r. Williams (IS.lfJ), 22 Beav. 4.-.2 : 111 R. 11. 43.-. .... [)ii Napier v. Williams. [liHl] 1 Ch. 3t;i ; 80 L. .J. Ch. 2'J8 ; lot I;. T. 380 ; :,:, Sol. .J. 23.-) 301) Nash, Me (1881), 16 Ch. D. 503 ; 44 L. T. 40 ; 29 W. R. 294 . . .404 , Be, Cook r. Frederick. [1910] 1 Ch. 1 ; 79 L.J. Ch. 1 ; 101 L.T.837 ; 26 T. L. R. 57 : 54 Sol. J. 48 65 r. Allen (1889), 42 Ch. D. 54 ; .58 L. J. Ch. 7.54 ; 61 L. T. 193; 37 W. R. 646 125. 128, 129 ;•. Ash (1862), 1 H. & C. 160 ; 32 L. .J. Ex. 165 ; 8 Jur. (N. s.) 998 . 195 f. Coates (1832), 3 B. & Ad. 839 ; 1 L. J. (N. S.) K. B. 137 ; 37 R. R. 552 199 r. Preston (1630), Cro. Car. 190 206 Natal Investment Co., Ee (1868). L. R. 3 Ch. 355 ; 37 L. .1. Ch. 362 ; 18 L. T. (N. s.) 171 ; 16 W. R. 637 528 National Financial Co.. lie, E-r parte Oriental Commercial Bank (1868), L. R. 3 Ch. 791 ; 18 L. T. (n. S.) 895 ; 16 AV. II. 994 . . . 430 Permanent Buildin<4 Society, Be (1889), 43 Ch. D. 431 ; 59 L. J. Ch. 403 ; 62 L. T.'.596 ; 38 V\^ R. 475 275 Trustees Co. of Australasia r. Genei'al Finance Co. of Australasia, [1905] A. C. 373 ; 74 L. .]. P. C. 73 ; 92 L. T. 736 : 54 W. R. 1 ; 21 T. L. R. 522 258, 2S8, 299, 481, 482, 484, 497 Naylor v. Arnitt (1830). 1 Ru.ss. i: Myl. .501 ; 32 R. R. 254 .... 332 Neale c. Davics (1854), 5 De G. M. & G. 258 ; 23 L. J. Ch. 744 ; 2 Kt,. R. 530 ; 2 W. R. 3.58 ; 104 R. R. 107 .... 309. 310, 311 r. Neale (1898), 79 L. T. 629 ; 15 T. L. R. 20 . . . . 91, 157 Needham, He (1844), 1 Jo. & Lat. 34 ; 6 Ir. Eq. R. 557 .... 191 Neil, Itc, Hemmin}! v. Neil (1890), 62 I-. T. 649 290, 362 Neill f. Neill, [1904] 1 Ir. R. 513 220 Neligan r. Roche(l.S73), Ir. Rep. 7 Eq. 332 311 Nelson r. Bridpnrt (1846). S Beav. 547 ; 10 Jur. 1043 . . . . 55.59 Nesbitt. iZfl (18,S7), 19 L. R. Ir. 509 385 Nettlefold's Trusts, //« (1S88). .59 L. T. 315 354 Neville r. Forte.scue (1848), 16 Sim. 333 ; 12 Jnr. 90S ; SO R. R. 86 . . 233 r. Matthewman, [1894] 3 Ch. 345 ; 63 L. .1. Ch. 734 ; 71 L. T. 282 : 42 W. R. 673; 7 R. 511 477,478 New, Re. Re Leavers, i/e Morlev, [1901] 2 Ch. 531 ; 70 L. .1. Ch. 710 ; 85 L. T. 174; 50 W. R. 17 214.218 r. Jones (1833), 1 Mac. & G. 668, n. ; 1 Mall cV: T\v. 632. n. ; 81 1!. K. 244 21)7,312 , Prance and Garrard's Trustee \\ \\w\\\\ivs. [1S'.I7] 2 (,). P.. I'.i ; (id L. J. Q. B. 5.54 ; 76 L. T. 742 ; 45 W. R. 577 ; 13 T. L. R. 397 : 4 Manson, 103 31!, 43, 78 Newell and KeviU's Contract, Re, [1900] 1 Ch. 9o ; 69 L. J. Ch. 94 ; 81 L. T. 581; 48 W. R. 181 345 Ncwen. Re, Newen /•. Barnes. [1894] 2 Ch. 297 ; 63 L..r.Ch.763 ; 70 L.T. 653 ; 43 W. R. .58 ; S R. 3o9 ; 58 J. P. 767 . 3(i3, 364, 377,384,393, 395 Newham v. Xewliam (1H22;, 1 L. J. (o. s.) Ch. 23 ; 25 R. R. 272 . . 4115 Newland, iZe, Bu.sh v. Sumnei.s. [1904] W. N. 181 .... 450,451 Newman r. Newman (1885), 28 Ch. D. 674 ; 54 L. J. Ch. 598 ; 52 L. T. 422 ; 33 W. R. .505 322 Newsomc v. Flowers (1861), 30 Beav. 461 ; 31 L. J. Ch. 29 ; 7 Jur. (N. s.) 1268 ; 5 L. T, (.v. .S.) 570 : 10 W. R. 26 309. 310 Table of Cases. ]xxv VACK Newton r. Askew (ISIS), 11 r>eiiv. 1 IT) ;(.);< ;(., | V. Newton (18G8), J.. K. 4 C'h. 1 1:5 ; 38 L. J. Cli. 1 IT) ; I'J I, f (o. s.) 588 ; 17 W. R. 238 -,2(;, .-,27 New Zealand Trust and Loan Co., Re, [1S;)3] 1 Vh. 4o;5 ; 02 I>.J Cli 202 • ' " 68 L. T. 593 ; 41 W. K. 457; 2 K. 151 ' .joj Nichols, Kf purfi' (1883), 22 Ch. D. 782 ; 52 L. J. Ch, G35 ; 48 L. T l!)2 ■ 31 W. \l. GGl ! 57 Nicholson, Re, Eade v. Nicholson, [190!)] 2 Ch. Ill ; 78 L. J. C'h 51(; • lO(') L. T. 877 937 r. Field, [1893] 2 Ch. 511 ; G2 L. J. Ch. 1015 ; (19 L. T. 299 ; 42 W. R. 48 ; 3 K, 528 380 v. Tutin(1855), 2Kay&J. 18 ; 1 .hir. (n. s.) 1201 ; IKilI.K. 84 3() Nickels, Re, Nickels r. Nickels, [1898] 1 Cli. (;3() ; G7 L. J. Ch. AW, ; 78 L. T. 379 : 4(> W. R. 422 227, 228 Nickisson v. Cockill (1863), 3 De G. J. & 8. 622 ; 32 L. J. Ch. 753 ; 9 Jur (n. s.) 975 ; S L. T. (N. s.) 778 ; 11 W. R. 1082 330 Nickolson v. Knowles (1820), 5 Madd. 47 ; 21 R. R. 276 . . . .311 Nicloson -i'. Wordsworth (1818), 2 Swans. 3()5 ; 19 R. R. 86 . . . ],S9 Niell t'. Morley (1804), 9 Ves. 478 DO Nightingale r. La wson (1785), 1 Bro. C. C. 440 24 7 Nixon. Re, Gray r. Bell, [1904] 1 Ch. 638 ; 73 L. J. Ch. 446 . . . 431 Noad L\ Backhouse (1843), 2 Y. & Coll. C. C. 529 ; 12 L. J. Cli. 4 46 ; 7 Jur. 808 .176 Noble r. Meymott (1851), 14 Beav. 471 ; 20 L. J. Ch. 612 ; 92 R. R. 179 . 187 Noel r. Jevon (1678), Freem. 43 206 Norcutt /•. Dodd (1841), Cr. & Ph. 100 ; 10 L. J. Ch. 296 ; 5 Jur. 853 ; 54 R. R. 224 106 Norfolk's (Duke of) Case (1678), 3 Ch. Cas. 1 ; 1 Yern. 164 . . .60 Norman r. Kynaston (1861), 3 De G. F. & J. 29 ; 7 Jur. (>'. s.) 129 ; 3 L. T. (N.S.) 826 ; ".) W. R. 25!» 170 Norris, Ex parte, Re Biddulph (1869), L. R. 4 Ch. 280 ; 38 L. J. Bk. 5 ; 17 W. R. 452 ; 19 L, T. (N. s.) 755 468 ,Re. Allen r. Norris (1884), 27 Ch. D. 333 ; 53 L. J. Ch. 913 ; 51 L. T. 593 ; 32 W. R. 955 378, 382, 394 y. Wright (1851), 14 Beav. 291 ; 92 R. R. 105 . . 265, 266, 270, 281, 282 North, Re, Garten r. Cumberland, [1909] 1 Ch. 625 ; 78 L. J. Ch. 344 . 235, 332 V. Crompton (1671), 1 Ch. Cas. 196 l.'^O North American Land and Timber Co. r. Wat kins. [1904] 1 Ch. 242 ; 73 L.J. Ch. 117; 89 L. T. 602; 52 W. R. 3(;o ; 20 T. L. R. SI . 183, 489. 491 Northage, Re, Ellis r. Barfield (1891), 60 L. J. Ch. 488 ; 64 L. T. 625 . 223, 224 Northern Counties, etc. Insurance Co. r. Whipp (1884), 26 Ch. D. 482 ; 53 L. J. Ch. 629 ; 51 L. T. 806 ; 32 W. R. 626 .... 6, 116, 527 Norton r. Johnstone (1885), 30 Ch. D. 649 ; 55 L. J. Ch. 222 ; 31 W.R. 13. ..246, 248 V. Pritchard, Reg. Lib. B. (1844), 771 269 Norway r. Norway (1834), 2 Myl. & K. 278 ; 3 I;. J. (N. .s.) Ch. Ill : 39 R. R. 211 188, 189 Nunburnhulme, Re, Wilson v. Xunburnholme, [1911] 2 Ch. 510 ; 105 L. T. 666 ; 56 Sol. J. 34 . . 356 , Re, r. , [1912] W. N. 46. [1912] 1 Ch. 489 : 106 L. T. 361 356 Nunncley v. Nunneley, April 18th, 1S83 320 Nutier r. Holland, [1894] 3 Ch. 408 ; 63 L. J. Ch. 932 ; 71 L. T. 50S ; 43 W. R. 18 ; 7 R. 491 447, 4.50, 451. 479 0. Oatway. Re, Hertslct v. Oatway. [1903] 2 Ch. 356 ; 72 L. J. Ch. 575 ; 88 L. T. 622 I"-', ^"^ Occleston r. FuUalove (1874), L. R. 9 Ch. 147 ; 43 L. J. Ch. 297 ; 29 L. T. (N. s.) 785 ; 22 W. R. 305 09, 70 Ixxvi Table of Cases. PAGE Oceanic Steam Xavisation Co. r. Sutherberry (1880), 16 Ch. D. 236 ; 50 L. J. Ch. 808 ; 43 L. T. 743 ; 29 W. R. 113 ; 45 J. P. 238 . . .265 O'Connell, Be, Maule r. Jagoe, [1903] 2 Ch. 574 ; 72 L. J. Ch. 709; 89 L. T. 166; 52 W. R. 102 136 O'Connor r. Foley, [190.")] 1 Ir. R. 1 99 Oddy, lie [1911] 1 Ch. 532 ; 104 L. T. 338 : 80 L. .J. Ch. 404 : 27 T. L. R. 312; 55 Sol. .J. 348 423,424,446 , He, Connell r. Oddy (1910), 104 L. T. 128 423, 424 O'Flaherty r. Browne, [1907] 2 Ir. R. 416 38 Ogle, E.r parte (1873), L. R. 8 Ch. 711 ; 42 L. .J. R.k. 99 : 21 W. R. 938. ..347, 465 Oldfield. Re, Oldfield r. OhlHcld, [1904] 1 Ch. 549 ; 73 L. J. Ch. 433 ; 90 L. T. 392 15, 24, 29 OKlham r. Oldham (1867), L. R. 3 Eq. 404 ; 36 L. J. Ch. 205 ; 15 W. R. 30(1 362 Olive, lie, Olive r. Westerman (1886), 34 Ch. D. 70 ; 56 L. .J. Ch. 75 ; 55 L. T. 83 ; 51 .J. P. 38 283 Oliver, i?^, Xewbald r. Reckitt (1890), 62 L. T. 533 . . . . 31,32 ,Re, Wilson v. Oliver, [1908] 2 Ch. 74 ; 77 L. J. Ch. 547 ; 99 L. T. 241 234, 239, 240 V. Court (1S20). 8 Pr. 127 ; Dan. 301 ; 22 R. R. 720 . 265, 29.5, 296 r. Hinton, [1899] 2 Ch. 264 ; 68 L. J. Ch. 583 ; 81 L. T. 212 ; 48 W. R. 3 527 Onslow V. Wallis (1849), 1 Mac. &; G. 506 ; 1 Hall & Tw. 513 : 19 L. .J. Cli. 27 ; 13 Jur. 1085 ; 84 R. R. 134 210 Ord V. Noel (1820), 5 Madd. 438 ; 21 R. R. 328 265 r. White (1840), 3 Reav. 3.57 519 O'Rcillv r. Alderson (1849), 8 Hare, 101 : 85 R. R. 233 . . . 382, 392 Orme, Re, Evans v. MaxweU (1883). 50 L. T. 51 164 Orrr. Newton (1791), 2 Cox. 274; 2 R. R. 44 267 Orrett r. Corser (185.5). 21 Beav. 52 ; 1 Jur. (x. s.) 882 ; 3 W. R. 604 : 25 L. T. (o. s.) 278: 111 R. R. 20 263,507,515 O'Rorke v. Bolingbroke (1877). 2 App. Cas. 814 ; 26 W. R. 239 . . . 96 Osborne to Rowlett (1880). 13 Ch. D. 774 : 49 L. J. Ch. 310 ; 42 L. T. 6.50 : 28 W. R. 365 369, 371 Osmond r. Fitzrov (1731). 3 P. Wms. 129 93 Ottley V. Gilby (184.5), 8 Beav. 602 ; 14 L. J. Ch. 177 ; 68 R. R. 218 . 323, 324, 326 Otway-Cavc r. Otway (1866), L. R. 2 Eq. 725 ; 15 W. R. 6 . . . 226 Overton r. Banister (1844), 3 Hare, 503 ; 9 .Jur. 906 ; 64 R. R. 386 . . 496 Ovey r. Ovey, [1900] 2 Ch. 524 : 69 L. J. Ch. 804 ; 83 L. T. 311 : 49 W. R. 45 216 Owen, Re (1889). 23 L. R. Ir. 328 2(;o , Re, Slater r. Owen, [1912] 1 Ch. 519 ; 56 Sol. .1. 381 . . . 242 V. Delamere (1872), L. R. 15 Eq. 134; 42 L. .1. Ch. 232 : 27 L. T. (N. s.) 647 ; 21 W. R. 218 207 Owens, Re. .Jones r. Owens (1882), 47 L. T. 61 .... 259, 262, 347 Owthwaite, Re, Owthwaite v. Taylor, [1891] 3 Ch. 494 ; 60 L. J. Cii. 854 ; 65 L. T. 141 ; 10 W. R. 38 216,273 Packman and Moss, Re (187.5), 1 Ch. D. 2H ; 15 L. J. Ch. 51 ; 31 L. T. (N. s.) 110 ; 24 W. R. 170 369 Paddon r. Richardson (1855), 7 De G. I\I. .t G. 563 ; 1 Jur. (\. s.) 1 192 ; 3Eq. R. 933 ; 109 R. R. 230 188,266 Page, Re, Jones r. -Morgan, [1893] 1 Ch. 304 ; 62 L. J. Ch. 592 ; 41 W. R. 357 ; 3 R. 171 323,324,4^8 r. Cox (18.52), 10 Hare, 163 ; 90 R. R. 314 .52 Paget, Re, Re Mellor, Mcllor c. Mdlor, [1898] 1 Ch. 290 ; 67 L. J. Ch. 151 ; 78 L. T. 72 ; 46 W. R. 328 427 Paine's Trusts, Re (1885), 33 W. R. 564 ; 28 Ch. D. 725 ; 54 L. J. Ch. 735 ; 52 L. T. 323 393 Palairet r. CJarcjw (1863). 32 P.eav. 561 ; ;t Jur. (v. a.) 426 ; 32 L. J. Ch. 508 ; 8 L. T. (n. .s.) 139 : 1 1 W. R. 119. . . . 269, 360, 373, 432 Table of Cases Ixxvii i'Af;K Talk, 7('^. Cliambtnluiii /•. Drake (1S'.)2), 11 W. It. 28 r.(iL' ralmer, lLc\ Lancasliiio aud Ycjrksliiie lieveisiouary Interest Co. c. Burke [iy07] 1 Ch. 486 ; TO L. J. Ch. 4U(; ; 9(i L. T. 81(1 . , 2!)'o 442 V. Emerson, [li)ll] 1 Ch. 758 ; SU L. J. Ch. 418 ; 104 L T :>:>! ■ ' 27 T. L. K. 320 ; o.-j Sol. J. M', ' 28.", • r. Simmonds (1854), 2 Drew. 221 ; 2 W. K. 213 ; lUO U. 11. 1)8 .' 25 *'. Youni^ (1(584), 1 Yerii. 27G ; 2 W. Kclyng, 27 ; Fitz. 38 ; 1 Vj\ Cas. Abr. 185, pi. 3U 177 Papillon r. Voice (1728), 2 P. Wms. 471 ....'' l-'ul-'l Pardo V. Bingham (1808), L. R. G Ec]. 485 . . . . .* ! ". ' 42(1 Pares, lie, Scott Chad r. Pares, [lUOl] 1 Ch. 708; 70 L. J. Ch. I2(; ; 81 L. T. 385 ' ] H^ 1 |- Parker v. Bolton (1835), 5 L. J. (x. s.) Ch. '.)8 ; 42 11. E. 285 j-'o j-'i y. Calcraft (1821), C. Madd. 11 ' isi V. Carter (1845), 4 Hare, 400 ; 07 P. P. lol ..'.'. '. IK! • ('. McKenna (1874), L. P. 10 Ch. 90 ; 44 L. J. Ch. 425 ; 31 L t' (N. s.) 738 ; 23 W. R. 271 320 and Beech, Re (1887), 56 L. J. Ch. 358 ; 50 L. T. !)5 ; 35 W. R. 353 520 Parker's Trusts, i?,e, [1894] 1 Ch. 707 ; 03 L. J. Ch. 316 ; 70 L. T. 105. ..300, 380 Parkes v. Royal Botanic Society (1908), 24 T. L. R. 508 .... 357 Parkin, Re, Hill v. Schwarz, [1892] 3 Ch. 510 ; 02 L. J. Ch. 55 ; 67 L T 77 ; 41 W. R. 120 13.j Parnall v. Parnall (1878), 9 Ch. D. 96 ; 26 W. R. 851 18 Parnell v. Stedman (1883), 1 Cab. & El. 152 108 113 Parrott, Re, (1881), 30 W. R. 97 ' :J91 , Re, Walter r. Parrott (1880), 33 Ch. D. 274 ; 55 L. T. 132 ; 34 W. R. 553 124, 127, 128, 129 ■ • r. Sweetland (1835), 3 Myl. & K. 655 ; 41 II. R. 1(;4 . . .181 Parry, Re, Ex parte Salaman, [1904] 1 K. B. 129 ; 73 L. J. K. B. 83 ; 89 L. T. 612 ; 52 W. R. 256 ; 20 T. L. R. 73 ; 11 Man.son, 18 . 102 i;. Warrington (1820), 6 Madd. 1.55 ; 22 R. R. 264 .... 237 and Hopkins, Re, [1900] 1 Ch. 100 ; 69 L. J. Ch. 190 ; 81 L. T. 807 ; 48 W. R. 345 ; 04 J. P. 137 253, 25 1 Parsons, Re, Stockley r. Parsons (1890), 45 Ch. D. 51 ; 62 L. T. 929 ; 59 L. J. Ch. 660 ; 38 W. R. 712 90, 476 Partington, Re, Reigh v. Kane, [1902] 1 Ch. 711 ; 71 L. J. Ch. 472 ; 86 L. T. 194 ; .50 W. R. 388 ; 18 T. L. R. 387 254 Pass V. Dundas (1880), 29 W. R. 332 ; 43 L. T. 005 500 Paterson v. Murphy (1853), 11 Hare, 88 ; 22 L. J. Ch. 882 ; 17 Jur. 298 ; 21 L. T. (o. s.) 86 ; 90 R. R. 587 43 1: Paterson (1866), L. R. 2 Eq. 31 ; 35 L. J. Ch. 518 ; 14 L. T. (N. s.) 320 ; 14 W. R. 001 401 Patman v. Harland (1881), 17 Ch. D. 353 ; 50 L. J. Ch. 042 ; 44 L. T. 728 ; 29 W. R. 707 .523, 524 Patrick, Re, Bills v. Tatham, [1891] 1 Ch. 82 ; 60 L. J. Ch. Ill ; 63 L. T. 752 ; 39 W. R. 113 40, 42 r. Simpson (1889), 24 Q. B. D. 128 ; 59 L. J. Q. B. 7 ; 61 L. T. 086 S, 490 Patten and Edmonton Union, Re (1883), 31 W. R. 785 ; 52 L. J. Ch. 787 ; 48 L. T. 870 471,473 Patterson v. Wooler (1876), 2 Ch. D. 580 ; 45 L. J. Ch. 274 ; 34 L. T. (N. s.) 415 ; 24 W. R. 455 432 Paul r. Paul (1882), 20 Ch. D. 742 ; 51 L. J. Ch. 839 ; 47 L. T. 210 ; 30 W. R. 801 41 Pawlett V. Att.-Gen. (1607), Hardres, 460 60 Pawley and London and Provincial Bank, Re, [1900] 1 Ch. 58 ; 65 L. J. Ch. 6 ; 81 L. T. 507 ; 48 W. R. 107 380 Pawson v. Brown (1879), 13 Ch. D. 202 ; 49 L. J. Ch. 193 ; 41 L. T. 339 : 28 W. R. 652 91, 157 Payne V. Evens (1874), L. R. 18 Eq. 356 3-H Payne's Settlement, /('<', Kibble t;. Payne (1886), 54 L. T. 840 . . 176,317 Peacock, Re (1880), 14 Ch. D. 212 ; 49 L. J. Ch. 228 ; 43 L. T. 99 ; 28 W. R. 801 402 V. Burt (1834), 4 L. J. (n. S.) Ch. 33 ; 41 R. R. 199 . . . 520 V. Colling (1885), 33 W. R. 528 ; 54 L. J. Ch. 743 ; 53 L. T. 020 . 386 Ixxviii Table of Cases. PAGE Teacock r. Monk (1751). 2 Ves. Sen. 190 92 Peacock's Settlement, lie, Kelsey v. Harrison, [1902] 1 Ch. 552 ; 71 L.J. Ch. .S25; 80 L. T. 414 ; 50W. K. 478 425 Peakf's Settled Estates, lie, [1894] 3 Ch. 520 ; 71 L. T. 371 ; 42 W. K. 687 ; 8 K. 539 395 Tearce v. Pearce (1856), 22 Beav. 248 ; 25 L. J. Ch. 893 ; 2 Jur. (x. s.) 843 ; 111 R. R. 345 377, .396 Pearks v. Moseley (1880), 5 App. Cas. 714 ; 50 L. J. Ch. 57 ; 43 L. T. 449 ; 29 W. R. 1 62, 74 Pearse v. Green (1819), 1 .lac. & \\. 135 ; 20 R. R. 258 . . . .323 Pearse's Settlement, lie, Pearse v. Pearse, [1909] 1 Ch. 3u4 : 78 L.J. Ch. 73 ; 100 L. T. 48 59 Pearson, lie. E.r parte Stephens (1876), 8 Ch. D. 807 : 35 L. T. 08 ; 25 W. R. 126 68, 108 , Ue, Oxley v. Scarth (1884), 51 L. T. 692 299 V. Amicable Assurance Co. (1859), 27 Beav. 229 ; 7 W. R. 029 ; 122 R. R. 386 42 Pease, i>;w7'i'e (1812), 19 Ves. 25 ; 1 Rose, 232 205 Peatfield v. Benn (1853), 17 Beav. 522 ; 23 L. J. Ch. 497 : 2 W. R. 08 ; 99 R. R. 272 390 Pechelt'. Fowler (1795), 1 Anst. 549 ; 3 R.R. 627 .... 265,478 Pedder's Settlement Trusts, Re (1870), L. R. 10 Eq. 585 : 40 L. J. Ch. 77. ..142 Peel (Sir Robert) Settled Estates, lie, [1910] 1 Ch. 389 ; 79 L. J. Ch. 233 ; 102 L. T. 67 ; 54 Sol. J. 214 ; 26 T. L. R. 227 . . . . 224 Pemberton v. M'Gill (1860), 1 Dr. .^c Sm. 206 ; 8 W. R. 290 : 127 R. R. 95 .508 Pennell v. Deffell (1853). 4 De G. M. & G. 372 ; 1 Eq. R. 579 ; 23 L. J. Ch. 115; 18 Jur. 273; 1 W. R. 499 ; 102 R. R. 170 472 PentlandtJ. Stokes (1812), 2 Ba. i: B. 68 204 Pepper v. Tuckey (1844), 2 Jo. & Lat. 95 ; 7 Ir. E.j. IL 572 ; 09 R. R. 250 390 Peppercorn v. Wayman (1852), 5 De G, &; Sm. 230 ; 21 L. J. Ch. 827 ; 10 Jur. 794 189 Perkins, Re, Brown v. Perkins, [1907] 2 Ch. 596 ; 77 L. J. Ch. 16 ; 97 L. T. 706 248 Perrins x\ Bellamy. [1898] 2 Ch. 521 ; 67 L. J. Ch. 049 ; 46 W. R. 682 ; 79 L. T. 109 483 r. , ri899] 1 Ch. 797 ; 68 L. J. Ch. 397 ; 80 L. T. 478 ; 47 W. R. 417 . - 483 Perrottand King's Contract, Re (1904), 90 L. T. 150 306 Perry, Re (1840), 2 Curt. 655 191 r. Merritt (1874), L, R. 18 Eq. 152; 43 L. J. Ch. 008; 22 \\\ R. 000 08 Peters v. Lewes and East Grinstead Rail. Co. (1881). 18 C'li. D. 429 ; 5u L. J. Ch. 839 ; 45 L. T. 234 ; 29 W. R. 875 338, 359 Petersons. Peterson (1866), L. R. 3 Eq. Ill ; 30 L. J. Ch. lol ; 15 W. R. 164 516 PetretJ. Petre (1853), 1 Drew. 371 ; 94 R. R. 7n3 491 Rett r. Fellows (1733), 1 Swans. 501, n 3.52 Peyton r. Robinson (1823), 1 L. J. (o. 8.) Ch. 191 ; 25 R. R. 278 . 211, 212, 317 Peyton's Settlement Trust, Re (1869), L. R. 7 Eq. 463 ; 38 L. J. Ch. 477 ; 20 L. T. (N. s.) 728 272 Phayre v. Peree (1815), 3 Dow, 110 ; 1 Bli. (n. s.) 594 ; 15 R. R. 28 . 316 Phelps' Settlement Trusts, lie (1885), 31 Ch. D. 351 ; 55 L. J. Ch. 405 ; 54 L. T. 480 373, 389 Philbrick, lie (1865), 13 W. R. 570; 34 L. J. Ch. 308 ; 12 L. T. (x. s.) 201 ; 5 N. R. .-,(12 ; 11 Jur. (N. .S.) .558 425 Philipps r. Philipii.s (1844), 8 Beav. 193 ; 68 R. R. 01 .... 338 Phillimore, /^<', Phillimore r. Herbert, [1903] 1 Cli. 942; 72 L. J. Ch. 591 ; 88 L. T. 705 235, 244, 245 Phillips, lie (an Infant) (1887), 34 Ch. D. 407 ; 50 L. J. Cli. 337 ; 56 L. T. 144 ; 35 \V. R. 284 88 1). James (1805), 2 Dr. & Sm. 404 123 V. Mullings (1871), L. R. 7 Ch. 244 ; 41 L. J. Ch. 211 ; 20 W. R. 129 92, 94, 95 Table of Cases. Ixxix Phillips V. Phillips (ISC, I), 4 Dc (J. F. & J. 2().S ; 31 1,. ,|. ch. :{2i ; s Jill-. (N. S.) 145 ; 5 L. T. (N. S.) V,',-) ; 10 W, 11. 28(1 . niS ^.. (1885), 29 Ch. D. (573; 54 L. J. Ch. 943; 53 L T. 403 ; 33 W. R.8(i3 .... 170 V. Probyn, [1899] 1 Ch. 811; G8 L. J. Ch. 401; '80 'l t" ■'13 ]:,7 Phillipsou r. Gatty (1848), 7 Hare, 516 ; 13 Jur. 318 ; 82 R. K. 228 . . V.K, Phipps V. Lovegrove (1873), L. K. l(i Kq. 80 ; 42 L. J. Ch. 892 ; 28 L T (N. s.) 584 ; 21 W. K. 590 JU Pickard v. Anderson (1872), L. K. 13 Eip (')08 ; 2(i L. T. (n. s.) 725 . . 27.S Pickering v. Pickering (1839), 4 Myl. k Cr. 289 ; 8 L. J. (x. s.) Cji liiiC • ;{ .lur. 743 : 48 K. P. 104 -^-J'.) r. Stamford (Lord) (1793), 2 Ves. Juii. 272 liii; Pickwell V. Spencer (1872), L. R. 7 Ex. 105 .... ' Xi Piddocke i: Burt, [1894] 1 Ch. 343 ; 03 L. J. Ch. 240 ; 70 L. T. 553 ; 4--' W. R. 248 ; 8 R. 104 177,183,184 Piercy, Be, Whitwham v. Piercy, [1907] 1 Ch. 289 ; 7G L. J. Ch. 11(5 ; 95 L. T. 868 ; 14 Manson, 23 223 V. Roberts (1832), 1 Myl. & K. 4 ; 2 L. J. (n. s.) Ch. 17 ; 3(; It. Ji 239 68 PigottandThe Great Western Rail. Co., lie (1881), 18 Ch.D. 146 ; 50 L. J. Ch. 679 ; 44 L. T. 792 ; 29 W. R. 727 338 Pilcher v. Rawlins (1872), L. R. 7 Ch. 259 ; 41 L. J. Ch. 485 : 25 L. T. (N. S.) 921 ; 20 W. R. 281 518,520 Filling's Trusts, Be (1884), 26 Ch. D. 432 ; 53 L. J. Ch, 1052 ; 32 \V. P. 853 loo Piper V. Moulton (1881), 72 Me. 155 77 Pitcairn, Be, Brandreth v. Colvin, [1896] 2 Ch. 199 ; 65 L. J. Ch. 120 ; 73 L. T. 430 ; 44 W. R. 200 232,213 Pitt t'. Pelham (1670), Freem. Ch. Cas. 134 17 Pitt-Rivers, Be, Scott v. Pitt-Rivers, [1902] 1 Ch. 403 ; 71 L. J. Ch. 225 ; 86 L. T. 6 ; 50 W. R. 342 : 18 T. L. R. 272 ; 66 J. P. 275 . . 84, 86 Pixton and Tong's Contract, ^e (1897), 46 W. R. 187 . . . 370,371 Plaskitt^-. Eddis(1898), 79 L. T. 136 213 Platamone ■w. Staple (1815), G. Coop. 250 155 Plavfair v. Cooper (1853), 17 Beav. 187 ; 1 Eq. R. 137 ; 23 L. J. Ch. 341 ; " 1 W. R. 216, 376 ; 21 L. T. (o. S.) 177 ; 99 R. R. 90 . . 247, 248, 250 Plowright V. Lambert (1885), 52 L. T. 646 319 Plummer, Be, [1900] 2 Q. B. 790 ; 69 L. J. Q. B. 936 ; S3 L. T. 387 ; 48 W. R. 634 ; 7 Manson, 367 102 Plumptre's Marriage Settlement, Be, Underbill ■;;. Plumptre, [1910] 1 Ch. 609 ; 79 L. J. Ch. 340 ; 102 L. T. 315 ; 26 T. L. R. 321 ; 54 Sol. J. 326 52, 136 Plympton r. Dispensary (1871), 106 Mass. 544 250 Pocock V. Reddiiigton (1801), 5 Ves. 794 277 Pole V. Pole (1748), 1 Ves. Sen. 76 162 Pooler. Pass (1839), 1 Beav. 600; 8 L. J. (N. s.) Ch. 325 .... 257 Pooley, Be (1888), 40 Ch. D. 1 ; 58 L. J. Ch. 1 ; GO L. T. 73 ; 37 W. R. 17 37, 313 V. Budd (1851), 14 Beav. 34 ; 92 R. R. 9 180 Pope, Be, Sharp v. Marshall, [1901] 1 Ch. 64 ; 70 L. J. Ch. 26 ; 19 AV. R. 122 226 r. Pope (1839), 10 Sim. 1 ; 51 R. R. 202 18 Pope's Contract, Be, [1911] 2 Ch. 442 ; 80 L. J. Ch. 692 ; 105 L. T. 370... 126, 271 Porrett v. White (188.5), 31 Ch. D. 52 ; 55 L. J. Ch. 79 ; 53 L. T. 514 ; 34 W. R. 65 477 Porter, Be, Coulson r. Capper, [1892] 3 Ch. 481 ; 61 L. J. Ch. 688 ; 67 L. T. 823 ; 41 W. R. 38 362 r. Baddeley (1877), 5 Ch. D. 542 230, 233 V. Moore, [1904] 2 Ch. 367 ; 73 L. J. Ch. 729 ; 91 L. T. 484 ; 52 W. R. 619 214, 326 r. Watts (1852), 21 L.J. Ch. 211 ; 16 Jur. 757 .... 375 Portington's Case, 10 Co. Rep. 35 b ^^ Portland (Duke of) r. Toi.ham (1864), 11 H. L. Cas. 32 ; 84 L. J. Cli.113 : 10 Jur. (X. s.)501; lOL. T. (N. s.)355; 12 W. R. 697 . . . 291 Ixxx Table of Cases. PAGE Portsmouth (Earl of) i: Fellows (1820), r> Madd. 4.-»0 ; 21 R. R. 33:^ . 373, 390 Postlethwaite, Jie, Postlethwaite i: Rickman (1888), 37 W. R. 200 ; 60 L.T. 514: 53 J. P. 357 320 Potts r. Britton (1871), L. R. 11 Eq. 433 ; 24 L. T. (jr. s.) 409 ; 19 W. R. 651 277 Pouev V. Hordern, [1900] 1 Ch. 492 ; 69 L. J. Ch. 231 ; 82 L. T. 51 ; 16 t. L. R. 191 61 Powell r. London and Provincial Bank. [1893] 2 Ch. 555 ; 62 L. J. Ch. 795 ; 69 L. T. 421 ; 41 W. R. .545 ; 2 R. 482 . . . 519, 526 /•. Matthews (185.5), 1 Jur. (x. s.) 973 ; 102 R. R. 922 . . . 400 c. Merrett (1853), 1 Sni. & G. 381 ; 22 L. J. Ch. 408 ; 17 Jur. 449 ; 21 L. T. (o. s.) 98 : Vt6 R. R. 426 208 ,-. Powell. [1900] 1 Ch. 243 ; 69 L. J. Ch. 164 ; 82 L. T. 84 . 98. 99 V. Price (1729), 2 P. Wms. 536 123 Power r. Banks, [1901] 2 Ch. 487 ; 70 L. J. Ch. 700 ; 85 L. T. 376 ; 49 W. R. 679 : 66 J. P. 21 473 Powers, Re, Lindsell v. PhUlips (1885). 30 Ch. D. 291 ; 53 L. T. 647 . 447, 451 Powlett i: Bolton (1797). 3 Ves. Jun. 374 : 4 R. R. 21 . . . . 183 Povser. He. Landon v. Poyser, [1910] 2 Ch. 444 ; 79 L. J. Ch. 748 ; 103 ' L. T. 134 248 Pratt's Trusts, Re (18S6). 55 L. T. 313 397 i\ Sladden (1807). 14 Yes. 193 151 Price, Re, Tomlin v. Latter, [1900] 1 Ch. 442 ; 69 L. J. Ch. 225 ; 82 L. T. 79 ; 48 W. R. 373 : 16 T. L. R. 189 61 V. Berriugton (1851), 3 Mac. & G. 486 : 15 Jur. 999 ; IS L. T. (o. s.) 56 ; 87 R. R. 157 90 i: Blakemore (1843). 6 Beav. .507 ; 63 R. R. 163 475 v. Jenkins (1877). 5 Ch. D. 619 : 46 L. J. Ch. 805 : 37 L. T. 51 . .116 - — - c. Leaden (1856). 21 Beav. .508; 111 R. R. 185 .... 441.477 Prichaid r. Ames (1823). Tiun. .Sc Russ. 222 : 24 R. R. 31 . . . . 17 Pride v. Fooks (1839). 2 Beav. 430 ; 9 L. J. (X. s.) Ch. 234 ; 4 Jur. 213 ; 50 R. R. 227 433 Priestlev i: Ellis, [1897] 1 Ch. 489 ; 66 L. J. Ch. 240 ; 76 L. T. 187 ; 45 W. R. 442 36, 37 Priestman f. Tindall (1S57), 24 Beav. 244 oOl Printers and Transferers Amalgamated Trades Protection Society, Re, [1899] 2 Ch. 184 ; US L. J. Ch. 537 : 47 W. R. 619 ; 15 T. L. R. 394 . 154 Pritt r. Clay (1843), 6 Beav. 503 ; 63 R. R. 160 498 Prodger r. Langhani (1663), 1 Keb. 486 114 Pro\ideiit Clerks' Mutual Life Assurance Association, Re, Re Moseley's Policy (1869), 18 W. R. 126 ; 21 L. T. (N. s.) 384 . . . " . 443 Prvce r. Burv (1853). 2 Drew. 41 ; 2 W, R. 87 ; 17 Jur. 1173 ; 2 Eq. Rep. 8... 181 Pryor, Re (1876), 35 L. T. 202 307, 308 Pugh. Re, Banting c. Pugh (1887), W. N. 143 276 Pumfrev, Re, Worcester City and County Banking Co. r. Blick (1882), 22 Ch' D. 255 ; 52 L. J. Ch. 228 ; 48 L.T. 516 ; 31 \V. R. 195 . 433, 436, 472 Pybus r. Smith (1791), 3 Bro. C. C. 340 361 Pye, Lu- parte, i> jfurte Dubost (1811), 18 Ves. 140 ; 2 Wh. ic Tu. Lead. Cas. (7th ed.) 366 ; 11 R. R. 173 38, 43 Pyke, Re, Birnstingl i: Birnstingl, [1912] \V. N. 81 ; [1912] 1 Ch. 770 . 239 Q. QuickC's Trusts, Re, Poltimore r. Quicke, [1908] 1 Ch. 887 ; 77 L. J. Ch. 523 ; 98 L. T. 610 ; 24 T. L. R. 23 269 E. R. r. Stapleton (1863), 4 B. & S. 629 ; 33 L. J. Mag. Cas. 17 ; 10 Jur. (X. s.) 44 ; 9 L. T. (N. s.) 322 ; 12 W. R. 49 ; 129 R. R. 867 . 207 — r. Steriy (1840), 12 Ad. k. El. 84 ; 4 P. ic I). 122 ; 9 L. J. (K. S.) Mag. Cas. 105 ; 54 R. R. 546 207 Table of Cases. Ixxxi PACK Raby r. Ridehalgh (1855), 7 De G. M. & G. 104 ; 24 L. J. Ch. 528 ; 3 'W. R. 814 ; 1 Jur. (n. s.) 3(i:5 ; 3 Eq. R. 901 ; 109 R. R. 40 . 223, 5(i3, 507 Rackham v. Siddall (1850), 1 Mac. & G. 607 ; 2 H. k T\v. 44 ; 84 R. R. 194 509,511 Rackstraw's Trusts, Re (1885), 52 L. T. 612 ; 33 W. R. 559 . . . 400 RadclifEe, Br, European Assurance Society v. Radcliffc (1878), 7 Ch. D. 733 ; 2(j W. R. 417 :{.-,4 V. Price (1902), 18 T. L. R. 466 98 Rae V. Meek (1889), 14 App. Cas. 558 500 Ragsdale v. Ragsdale (1890), 68 Miss. 92 84 Raikes v. Raikes (1863), 32 Beav. 403 392 Ramsden v. Hylton (1751), 2 Ves. Sen. 305 498 Ramskill v. Edwards (1885), 31 Ch. D. 100 ; 55 L. J. Ch, 81 ; 53 L. T. 919 ; 34 W. R. 96 rj02 Randall v. Errington (1805), 10 Ves. 423 ; 8 R. R. 18 315 V. Morgan (1806), 12 Ves. 67 ; 8 R. R. 289 81 V. Russell (1817), 3 Mer. 190 ; 17 R. R. 56 176 Ranelagh's (Lord) Will, ^e (1884), 26 Ch. D. 590; .53 L. .). Ch. (W9 ; 51 L. T. 87 ; 32 W. R. 714 176,316 Raphael v. Boehm (1805), 11 Ves. 92 ; 8 R. R. 95 4(13 Ratcliff, Me, [1898] 2 Ch. 352 ; 07 L. J. Ch. 562 ; 78 L. T. 834 . . . 409 RatcliflEe v. Barnard (1871), L. R. 6 Ch. 652 ; 40 L. J. Ch. 777 . . . 527 Rathbone, Be (1876), 2 Ch. D. 483 ; 45 L. J. Ch. 531 ; 24 W. R. 56(i . 391, 402 Rawsthorne v. Rowley (1907), 24 T. L. R. 51 ; [1909] 1 Ch. 409, n. . 213, 261 Raybould, Me, Raybould v. Turner, [1900] 1 Ch. 199 ; 69 L. J. Ch. 249 ; 82 L. T. 46 ; 48 W. R. 301 4.30, 439, 440 Rayner, Me, Rayner v. Rayner, [1904] 1 Ch. 176 ; 73 L. J. Ch. Ill ; 89 L. T. 681 ; 52 W. R. 273 126 Read v. Stedman (1859), 26 Beav. 495 ; 28 L. J. Ch. 481 ; 33 L. T. (0. s.) 115 ; 122 R. R. 208 208 Redding, Me, Thompson v. Redding, [1897] 1 Ch. 876 ; 66 L. J. Ch. 400 ; 76 L. T. 339 ; 45 W. R. 457 2.54 Redgate, Me, Marsh r. Redgate, [1903] 1 Ch. 356 ; 72 L. .J. Ch. 204 ; 51 W. R. 216 425, 427 Redington v. Redington (1794), 3 Ridge. P. C. 106 163 V. (1809), 1 Ba. & B. 131 ; 12 R. R. 5 . . . 182 Redman v. Rymer (1889), 60 L. T. 385 439, 522 V. (1891), 65 L. T. 270 338 Reese River Co. v. Atwell (1869), L. R. 7 Eq. 347 ; 20 L. T. (N. s.) 163 ; 17 W. R. 601 106 Rehden v. Wesley (1861), 29 Beav. 213 305 Reid V. Reid (1886), 31 Ch. D. 402 ; 55 L. J. Ch. 294 ; 54 L. T. 100 ; 34 W. R. 333 90 I'. Thompson (1851), 2 Ir. Ch. R. 26 291 Reis, Me, E.r parte Clough [1904] 2 K. B. 769 ; 73 L. J. K. B. 929 ; 91 L. T. 592 ; 53 W. R. 122 ; 20 T. L. R. 547 ; 11 Manson, 229 . . 35. 56, S7, 101, 103, 108, 113 Revel V. Watkinson (1748), 1 Ves. Sen. 93 220, 248 Reynell v. Sprye (1852), 1 De G. M. & G. 660 ; 21 L. J. Ch. 633 ; 91 R. R. 228 1'"j6 Richards, Me, Shenstone v. Brock (1887), 36 Cb. D. 541 ; 56 L. J. Ch. 923 ; .57 L. T. 249 ; 36 W. R. 118 ^S , i?^, Williams (!. Gorvin (1883), 50 L. T. 22 1"1 V. Delbridge (1874), L. R. 18 Eq. 11 ; 43 L. .1. Ch. 459 ; 22 W. It. 584 . 38,44,45 Richardson, Me, Morgan v. Richardson, [1S9()] 1 Ch. 512 : 65 L. J. Ch. 512 ; 74 L. T. 12 ; 44 W. R. 279 -'27 , Me, Richardson v. Richardson, [1900] 2 Ch. 778 ; 69 J;. J. Ch. 804 3<>I. '^"=5 V. Richardson (1867), L. R. 3 Kq. 686 ; 30 L. .J. C\\. 6.53 ; 15 W. R. 690 • • ■ ^^ Richerson, Me, Scales v. Heyhoe, [1892] 1 Ch. 379 ; 61 L. ■). Ch. 202 ; 6G L. T. 174 167, 173 Rickard, Me, Rickard v. Robson (1862), 31 Beav. 244 ; 31 L. J. Ch. 897 ; 8 Jur. (N. s.) 655 ; 7 L. T. (N. s.) 87 ; 10 W. R. 657 • • ■ • "'^ Ricketts v. Ricketts (1891), 64 L. T. 263 508 T. / Ixxxii Table of Cases. PAGE Rider v. Kidder (1805), 10 Ves. 360 : 5:^ K. 11. 2ti9 . . . 106, 155, 160 Ridler, He, Ridler r. Ridler (1882), 22 Ch. D. 71 ; 52 L. J. Ch. 343 ; 48 L. T. 396 : 31 W. R. 93 ; 47 J. P. 79 113,116 Ridlev. Jte. Ridley r. Ridley, [1904] 2 Ch. 774 ; 73 L. J. Ch. 696 ; 91 L. T. 189 260. 367 Rigby, lie, Jennings r. Rigby (1863). 33 L. J. Ch. 149 ; 15 L. T. (N. s.) 499 77 Rigden r. Vallier (1751). 3 Atk. 735 ; 2 Ves. Sen. 252 160 Riinmcr r. Webster, [1902] 2 Ch. 163 ; 71 L. J. Ch. 561 : 86 L. T. 491 ; 50 W. R. 517; 18 T. L. R. 548 518 Rippon r. Norton (1839), 2 Bcav. 63 ; 50 R. R. 96 360 Rittson i: Stordy (1855), 3 Sm. & G. 230 ; 1 Jur. (N. s.) 771 : 3 W. R. (!27 ; 3 Eq. R. 1039 91 Robbins, H^. Bobbins r. Legge. [1907] 2 Ch. 8 ; 76 L. J. Ch. 531 ; 96 L. T. 755 357 Roberts, Be, Knight r. Roberts (1897), 76 L. T. 479 483 , Re, Repington r. Roberts-Gowan (1881), 19 Ch. D. 520 ; oOL. J. Ch. 265 ; 45 L. T. 4.50 63 Roberts" Trust, ^(? (1869). 17 AV. R. 639 444 Robertson r. Morrice (1845), 9 Jur. 122 ; 72 R. R. 766 .... 44 Robinson, Jte, Pickard r. Wheatcr (188.5), 31 Ch. D. 247 ; 55 L. J. Cli. 307 : 53 L. T. 865 447, 451 Robinson r. Harkin, [1896] 2 Ch. 415 ; 65 L. J. Ch. 773; 74 L. T. 777 ; 44 W. R. 702 293, 295, 296, 502, 504 r. Lowater (1854), 5 De G. & M. 272 : 23 L. J. Ch. 641 ; 18 Jur. 363 ; 2 \V. R. 394 ; 23 L. T. (o. s.) 85 : 104 R. R. 115 . . 339 . V. Pelt (1734), 3 P. Wms. 249 ; 2 Wh.& Tu. Lead. Cas. (7th ed.) 606 182, 187. 311, 312 r. Preston (1858), 4 Kay & J. 505 ; 27 L. J. Ch. 395 ; 4 Jur. (n. s.) 186 ; 116 R. R. 432 160 r. Robinson (1851), 1 Dc G. M. & G. 247 ; 21 L. J. Ch. Ill ; 16 Jur. 255 : 91 R. R. 73 261.267,271,460,462 Robson r. Flight (1865), 4 De G. J. & S. 608 : 34 L. J. Ch. 226 ; 11 L. T. (N. s.) 725; 11 Jur. (N. s.) 147 ; 13 W. R. 393 . . . 17,18,296 Roby, Be, Hewlett r. Newington, [1908] 1 Ch. 71 ; 77 L. J. Ch. 169 ; 97 L. T. 773 208 Rochefoucauld r. Boustead, [1897] 1 Ch. 196 ; 66 L. J. Ch. 44 ; 75 L. T. 502 ; 45 W. R. 272 ; 13 T. L. R. 118 . 79, 86, 159, 185, 490 r. , [1898] 1 Ch. .5.50 ; 67 L. J. Ch. 427 . . 315 Rodbard v. Cooke (1877), 25 W. R. 555 ; 36 L. T. 504 308 Roe r. Nix, [1893] P. 55 ; 62 L. J. P. 36 ; 68 L. T. 26 ; 1 R. 472 . .90 Rolfe r. Gregory (186.5), 11 Jur. (n. s.) 98 ; 34 L. J. Ch. 274 : 4 De G. J. & S. 576 : 12 L. T. (N. s.) 162 ; 13 W. R. 355 509, 510 Rollfc r. Rudder (1725), Bunb. 187 17 Romford Canal Co., Be (1883), 24 Ch. D. 85 ; 52 L. J. Ch. 729 : 49 L. T. 118 528 Roots r. Williamson (1888), 38 Ch. D. 485 ; 57 L. J. Ch. 995 ; 58 L. T. 802 ; 36 W. R. 758 45 Roper-Curzon r. Roper-Curzon (1871), L. R. 11 Eq. 452 : 24 L. T. (x. s.) 406 : 19 W. R. 519 333 Rose r. Bartlett (1633). Cro. Car. 292 366 1-. Watson (1864), 10 H. L. Cas. 672 ; 33 L. J. Ch. 385 ; 10 Jur. (N. s.) 297 ; 10 L. T. (N. s.) 106 ; 12 W. R. 585 ; 3 N. R. 673 . . . . 184 Rosher r. Williams (1875), L. R. 20 Eq. 210 ; 44 L. J. Ch. 419 : 32 L. T. (N. s.) 387 ; 23 W. R. .561 116 RosMter f. Rossiter(1863), 14 Ir. Ch. R. 247 124 Roth, Be, Goldbergcr r. Roth (1896), 74 L. T. 5i) .... 270. 306 Routlcdge, Be, Routledgc v. Saul, [1909] 1 Ch. 280 ; 78 L. J. Ch. 136 ; 99 L. T. 919 367. 386 Rowbotham r. Dunnett (1878). 8 Ch. D. 430 ; 47 L. J. Ch. 449 ; 38 L. T. 278 ; 26 W. R. 529 159 Rowland r. Morgan (1848). 13 Jur. 23 : 2 Ph. 765 ; 18 L. J. Ch. 78 ; 78 R. 11. 282 456 r. Witherdcn (1851), 3 Mac. & G. 568 ; 21 L. J. Ch. 480 ; 87 R. II. 200 300 Rowley r. Adams (1849), 2 H. L. Cas. 725 ; 81 R. R. 363 .... 262 r. Ginnevcr. [1897] 2 Ch. .503 ; 66 L. J. Ch. 669 ; 77 L. T. 302 . 182 f. Unwin(1865), 2 Kay &; J. 138; 110 R. R. 140 . . . .182 Table of Cases. Ixxxiii PAGE Rowlls V. Bebb, [1900] 2 Ch. 107 ; 69 L. J. Ch. 502 ; 82 L, T. fi33 ; 48 W. R. 562 234, 243 Royds r. Royds (1R.")1), 14 Beav. 54 ; 92 R. R. 18 . . . , 283, 433 Royle, Efi, Royle r. Hayes (1889), 43 Cli. D. 18 ; 59 L. J. Cli. 1 ; 61 L. T. 542; 38 VV. R. 17 447, 45() Rucker v. Scholetield (1862), 1 Hem. i: M. 36 ; 32 L. J. Ch. 46 ; 9 Jur. (N. s.) 67; 11 W. R. 137 171 Ruddington Land, Be, [1909] 1 Ch. 701 : 78 L. J. Ch. 378 ; 100 L. T. 648 208 Ruddock, Ife, Newberry v. Mansfield (1910), 102 L. T. 89 . . . . 432 Riidkin v. Dolman (1876), 35 L. T. 791 78, 153 Rumney and Smith, lie, [1897] 2 Ch. 351 ; 66 L. J. Ch. 641 ; 76 L. T. 800 ; 45 VV. R. 678 370 Rushworth's Case (1676), Freem. 13 177 Russell, Kr parte, Re Butterworth (1882), 19 Ch. D. 588 ; 51 L. J. Ch. 521 ; 46 L. T. 113; 30 W. R. 584 107 r. .lackson (1852), 10 Hare, 204 : 90 R. R. 33(5 .... 85 c. Russell (1783), 1 Bro. C. C. 269 ; 2 Wh.i: Tu. Lead. Cas. (7tli ed.) 76 181 r. Wakefield Waterworks Co. (1875), L. R.20 V.<\. 474 ; 44 L. J. Ch. 496 ; 32 L. T. (N. s.) 685 ; 23 W. R. 887 185 Ryall ?•. Ryall (1740), 1 Atk. 59 ; cited Ambl. 413 .... 80,1.59 Rycroft r. Christy (1840), 3 Beav. 238 ; 4 Jur. 599 ; 52 R. R. 112 . . 41 Ryder i: Bickerton (1743), 3 Swans. 80, n 277, 323 S. Sackville-West i: Holmesdale (1870), L. R. 4 11. L. 543 ; 39 L. J. Ch. ,505 11, 120, 126 SaflEron Walden Second Benefit Building Society r. Rayner (1880), 14 Ch. D. 406 ; 49 L. J. Ch. 465 ; 43 L. T. 3 ; 28 W. R, 681 .. . 522 Sale r. Moore (1827), 1 Sim. 534 ; 27 R. R. 239 18 Sales, lie, Sales r. Sales, [1911] W. N. 194 ; 55 Sol. J. 836 .... 379 Salisbury (Marquis of) v. Keymer (1909), 25 T. L. R. 278 . . . • 284 Salmon, lie. Priest e. Uppleby (1889), 42 Ch. D. 351 ; 62 L. T. 270 ; 38 W. R. 150 283, 463, 464 Saloway i'. Strawbrid^e (1855), 1 Kay & J. 371 ; 24 L. .J. Ch. 393 ; 3 W. R. 335 ; 103 R. R. 132 371 Salter r. Bird (1883), 103 Pa. St. 403 84 v. Cavanagh (1838), 1 Dru. & Wal. 668 ; 56 R. R. 222 .. . 49o Salusbury v. Denton (1857), 3 Kay & .1. 529 ; 26 L. J. Ch. 851 ; 3 Jur. (X. s.) 740; 5 W. R. 865 ; 112 R. R. 277 21 Salway c. Salway (1831), 2 Russ. k Myl. 215 ; 9 L. J. (O. s.) Ch. 152 . . 295 Sampson, Re, Sampson v. Sampson, [1906] 1 Ch. 435 ; 75 L. J. Ch.302 ; 94 L. T. 241 ; 54 W. R. 342 393 and Wall, lie (1884), 25 Ch. D. 482 ; 53 L. J. Ch. 457 ; 50 L. T. 4.35 ; 32 W. R. 617 ^^'^ Sander v. Heathtield (1874), L. R. 19 Eq. 21 ; 44 L. J. Ch. 113 ; 31 L. T. (N. 8.) 400 ; 23 W. R. 331 -'•! Sanders r. Miller (1858), 25 Beav. 154 ; 6 W. R. 454 ; 119 R. R. 368 . . 21, Sanders' Trusts (1866), L. R. 1 Eq. 675 ; 12 Jur. (N. s.) 351 ; 14 W. R. 576 I'O Sanderson's Trust, Re (1857), 3 Kay .'c J. 497 ; 26 L. J. Ch. 804 ; 3 Jur. (N. s.) 6.58; 5 W. R. 864 ; 112 R. R. 257 68,329 Sandford r. Jodrell(1854), 2 Sm. .V: a. 176; 97 R. U. 152 . . • • ■*'' Sands to Thompson (1883), 22 Ch. D. (;14 ; 52 L. J. Ch. 406 ; 48 L.T. 210 : 31 W. R. 397 9' -'03, 490 Sanford, Re, Sanford r. Sanford, [1901] 1 Ch. 939 ; 70 L. J. Ch. 591 ; 84 L.T. 456 1''^'=;'? Saunders r. Dehew (1692), 2 Vern. 271 lU, .528 V. Vautier (1841), Cr. & Ph. 240 ; 10 L. J. Ch. 354 ; 54 R. R. 28(i . 3..<. Savile v. Couper (1887), 3(5 Ch. D. 520 ; 56 L. J. Ch. 980 ; 56 L. T. 907 ; 3.) W.R.829 •^^•' Sawyer v. Sawyer (1885), 28 Ch. D. 595 ; 54 L. J. Ch. 444 ; 52 L. T. 292 ; 33 W. R. 403 ■*^'' ""' /2 Ixxxiv Table of Cases. PAGE Sayre r. Hughes (1868), L. R. 5 Eq. 376 ; 37 L. J. Ch. 401 ; 18 L. T. (n. s.) 347 ; 16 W. R. 662 164 Scale r. Rawlins, [1892] A. C. 342 ; 61 L. J. Cli. 421 ; 66 L. T. 542 . . 24 Scales r. Baker (IS.V.)), 28 Beav. ill : 8 W. R. 287 ; 2 L. T. (x. s.) 659 ; (J Jur. (N. s.) 1134: 126 R. R. 36 472 Schneider. Re. Kirby v. Schneider (1906), 22 T. L. R. 223 . . 267, 306, 329 Scholefield t: Redferu (1863), 2 Drew, i: Sm. 173 : 32 L. J. Ch. 627 ; 9 Jur. (X. s.) 485 ; 8 L. T. (x. s.) 487 ; 11 \V. R. 453 225 Scholrteld c. Spoouer (1884), 26 Ch. D. 94 ; 53 L. J. Ch. 777 ; 51 L. T. 138 ; 32 W. R. 91(1 134 Schrieber c. Dinkel(1884), .54 L. J. Ch. 241 117 r. (1886). 54 L. T. 911 117 Scotncy i: Loraer (1886), 31 Ch. D. 380 ; 55 L. J. Ch. 443 ; 54 L. T. 194 : 34 \V. R. 407 425, 427 Scott, Be, Scott c. Hanbury, [1891] 1 Ch. 298 ; 60 L. J. Ch. 461 ; 63 L. T. 800 ; 39 W. R. 264 88 Jle V. Scott, [1902] 1 Ch. 918 ; 71 L. J. Ch. 475 ; 86 L. T.348 : .50 W. R. 454 3.50, 351 Be, r. , [1911] 2 Ch. 374 ; 80 L. J. Ch. 750 ; 105 L. T. 577 159 r. Becher (1817), 4 Pr. 346 : 18 R. R. 722 476, 478 c. Surnian (1743), Willes, 404 474 Scottish Equitable Life Assurance Society (Policy No. 6.402), Re, [1902] 1 Ch. 282 ; 71 L. J. Ch. 189 ; 85 L. T. 720 ; .50 W. R. 327 . 160 Widows Fund v. Craig (1882), 20 Ch. D. 208 ; 51 L. J. Ch. 363 ; 30 W. R. 463 338 Scowcroft. Re, Ormrod r. Wilkinson, [1898] 2 Ch. 638 ; 67 L. J. Ch. 697 ; 79 L. T. 342 20 Scrivener r. Smith (1869), L. R. 8 Eq. 310 257 Sculthorpe v. Tipper (1871), L. R. 13 Eq. 2.H2 ; 41 L. J. Ch. 266 : 26 L. T. (X.s.) 119; 20 W. R. 276 267 Seagram r. Knight (1867), L. R. 2 Ch. 628 ; 36 L. J. Ch. 918 ; 17 L. T. (N. S.) 47 ; 15 W. R. 1152 328, 331, 334 Sea'^ravc v. Seagrave (1807), 13 Ves. 439 ; 9 R. R. 203 .... 97 Searle Re, Searle r. Baker, [1900] 2 Ch. 829 ; 69 L. J. Ch. 712 ; 83 L. T. 364 ; 49 W. R. 44 234, 239 Seaton /•. Scaton (1888), 13 App. Cas. 61 ; 57 L. J. Ch. 661 ; 58 L. T. 565 ; 36 W. R. 865 88 Seconfl East Dulwich 745th Starr-Bowkett Building Society, lie (1899), 68 L. .J. Ch. 196 ; 79 L. T. 726 ; 47 W. R. 4u8 482 Sellack r. Harris (1708), 5 Vin. Abr. 521 84 Sewell, Re. White r. Sewell, [1909] 1 Ch. 806 ; 78 L. J. Ch. 432 ; 100 L. T. 883; 16Mauson, 113 515 Sewell's Estate, Re (1870), L. R. 11 Eq. 80 ; 40 L. J. Ch. 135 ; 23 L. T. (X. S.) 835 232 Shafto r. Adams (1864). 4 Giff. 492 ; 33 L. J. Ch. 287 ; 10 Jur. (X. s.) 121 ; 9 L. T. (N. S.)676 ; 3 N. R. 363 56 Shafto's Trusts, Me (1885), 29 Ch. U.247 ; 54 L. J. Ch. 885 ; 53 L. T. 261 ; 33 W. R. 728 380 Shallc.ross n Wright (18.50), 12 Bcav. .505 ; 85 R. R. 155 . , . . 16S Shaplaiid r. Smith (178(1). 1 Bro. C. C. 75 194 Sharp, Re, Rickctt r. Rickctt, [1906] 1 Ch. 793 ; 75 L. J. Ch. 458 ; 95 L. 'J'. 522 ; 22 T. L. R. 3(58 489, 516 , Ee, Rickett r. Sharp (1890), 45 Ch. D. 286 ; 60 L. J. Ch. 38 ; 62 L. T. 677 277 ,-. Jackson, [1899] A. C. 419 ; 68 L. .1. Q, 15. 860 ; 80 L. T. 841 ; 15 T. L. R. 418 : 6 Maiison, 264 Iii2, 476 ,-. St. Sauveur (1871), L. li. 7 Ch. 343 ; 26 L. T. (N. t<.) 142 ; 20 W. R. 269 91 Sharpe Re, Masonic and General Life Assurance Co. r. Sharpe, [1892] 1 Ch. 154 ; 61 L. J. Ch. 193 : 65 J-. T. 806 ; 40 W. R. 241 184, 185 ,.. Koy ( 1S68), L. R. 4 Ch. 35 ; 19 L. T. (N. S.) 541 ; 17 W. R. 65 . 496 Sharpies 1-. Adams (18t;3), 32 Beav. 213; 8 L. T, (N. s.) 138; 11 W. R. 4.50 ^28 Shaw Re, Robinson r. Shaw. [1H94] 2 Ch. 573 : 63 L.J. Ch. 770 ; 71 L. T. 79 ; 43 \V. K. 43: 8 1{. 121 69 Table of Cases. Ixxxv I'ACB SIkiw r. lUiiiuy (ISt;:,), 2 De (i. J. & S. lOS ; 34 L. J. Cli. 2.-7 ; 11 ,Tiir. (N.s.) !)<) ; 1 1 L. T. (N. s.) MS ; 13 W. U. 374 .... 323 r. Gates, [1 !)()'.)] 1 Ch. 3S;) ; 78 L. J. Cli. 22r. ; 1(10 ],. 'I'. I IC . 2(;K 271t, 2.SI, 2S.",, 2«(;, 2S7 r. Ford (1877'), 7 Ch. D. CC!) ; 17 [.. J. Cli. r,:n ; 37 I.. T. 71!) ; ''G W. R. 23.-> C.S r. Foster (1872), L. U. r> II. I,. 321 ; 12 ],. ,J. Ch. I'.t : 27 [,. T. (N. S.) 281 ; 2()W. 11. !i(t7 1 7'.t r. Lawless (1838), 5 CI. & K. 12!» ; 1 Dm. .V Wal. .->I2 : 17 K. K. II 37 -*'. Weigh (1828), 2 St r. 71)8 2()(i Sheffield (Lord) v. London Joint Stock Baidc (1888), 13 App. Cas. 333 ; r,7 L. J. Ch. !I86 ; '>S L. T. 73o ; 37 W. 11. .33 .-,28 Sheldon, Mr, Nixon v. Sheldon (188S), 3!l Ch. T). ."O ; 58 T;. .1. Cli. 2.", : :,'.i L. T. 133 ; 37 W. R. 2G . 233.237 Shelley's Case, 1 Co. 88 b 12.3, 128. I'.l'.). 2()2 Shelmerdine. Jlc (1804), 33 L. J. Ch. 474 ; 11 L. T. lOf, . ... 3K'.» Shepherd v. Harris. [1!»U5] 2 Ch. 310 ; 74 L. J. Ch. 574 : <.l3 L. T. ir, : -,3 W. R. r,70 : 21 T. L. R. 507 2'.t7. 317 V. Mouls (184.5). 4 Hare, .500 ; 14 L. .J. Ch. 3GC. : !» .lur. 50(1 ; G7 R. R. 138 4(;i Sheppard, Re, De Brlmont v. Harvey, [1911J 1 Ch. 50 ; 80 L. .1. Ch. 52 : 103 L. T. 424 ; .55 Soi. .J. 13 301.305 -y. Wilson (1845), 4 Hare. 3it2; !) Jiir. 920 226 Sheppard's Settlement Trusts, i2^, [1888] W. N. 234 380 Trusts, Me (18G2), 4 Ue G. F. & .1. 423 ; 32 L. .J. Ch. 23 : 9 Jiir. (N. s.) 59 ; 7 L. T. (N. s.) 377 ; 1 1 W. R. GO ; 1 N. R. 7G . . . 403 Sheridan v. .Joyce (1844), 1 .Jo. & Lat. 401 ; 7 Ir. Eq. R. 115 ; GS R. R. 276 511 Sherwood, Me (1840), 3 Beav. 338 : lo L. J. Ch. 2 ; 4 Jur. 982 ; 52 U. R. 14G 312 Shewen r. Vanderhor.st (1830), 2 Russ. & Myl. 75 ; 1 L. .1. (N. s.) Ch. 107 ; 32 R.R. 219 353 Shield, i?^, Pethybridge r. Burrow (1885). 53 L. T. 5 . . . . 44.45 Shipbrook (Lord) v. Hinchinbrook (Lord) (1810), IG Ves. 477 ; 8 R. R. 138 308 Shore V. Shore (1859), 4 Drew. 501 : 28 L. J. Ch. 941 ; 7 W. R. 390 ; 113 R. R. 43G 24G, 2.50 Shortridge, Me, [1895] 1 Ch. 278 ; 64 L. .J. Ch. 191 ; 71 L. T. 799 ; 43 W. R. 257 ; 12 R. 81 ; 63 J. P. 38 376, 38G, 393 Shovelton v. ShoveRon (1863), 32 Beav. 143 ; 1 X. R. 226 . . . . 25 Shrewsbury (Countess of) r. Shrewsbury (Earl of) (1790), 1 Ves. .Inn. 227 ; 3 Bro.'C. C. 120 ; 2 R. R. 101 337 Shurmer r. Sedgwick (1883), 24 Ch. D. 597 ; 53 L. .7. Ch. .S7 : 49 L. T. 156 ; 31 W. R. 884 117 Sibley's Trusts, Me (1877), 5 Ch. D. 494 : 46 L. .1. Ch. 387 ; 37 F,. T. 18o 24 Sidniouth /•, Sidraouth (1840), 2 Beav. 447 ; 9 L. .1. (N. s.) Cli. 2S2 : 50 R. R. 235 163 Siggers v. Evans (185.5), 5 El. & Bl. .367 ; 3 C. L. R. 1209 ; 24 L. J. Q. B. 305 ; 1 Jur. (N. S.) 851 ; 103 R. R. 521 :^G Silkstone and Haiijh Moor Coal Co. v. Edey, [1900] 1 Ch. 167 : 69 L..!. Ch. 73; 48 W. R.''l37 :^1'' Simes v. Eyre (1847), 6 Hare, 137 ; 77 R. R. 53 -'5'.i Simpson, Me, Simnson v. Simpson, [1904] 1 Ch. 1 : 73 L. J. Ch. 53 ; 89 L. T. 542 ; 52 W. R. 310 137,139 r. Earles (1847), 11 Jur. 921 ; 81 R. R. !'28 232 Singlehurstr. Tapscott Steamship Co., [1899] W. N. 133 .... 4S1 Sisson ?•. Shaw (1804), 9 Ves. 285 ; 7 R. R. 190 328. 3.<3 Sisson's Trusts, Me, Jones >: Trappes, [1903] 1 Ch. 262 : 72 L. J. Ch. 212 : 87 L. T. 743; 51 W. R. 411 . . 304. 3(i9 Sitwell V. Bernard (1801), 6 Ves. 520 ; 5 R. R. 374 -':■>■ Skarf r. .Soulby (1849), 1 Mac. & G. 364 ; 1 Hall .^ 'I'w. 42r. : 19 L. J. Ch. 30 ; 13 Jur. 1109 ; 84 R. R. 103 . . 1"" Skeats' Settlement, Me, Skeats r. Evans (1889), 42 Ch. D. 522 ; 58 L. J. Ch. 656 ; 61 L. T. 500 ; 37 W. R. 778 35-7, 384. 393 Skinner, i?e, [1896 J W. N. 68 '^^■> , Me, Cooper r. Skinner, [1904] 1 Ch. 289 ; 73 L. J. Ch. 94 : 89 L. T. 663 ; 52 W. R. 346 324 Ixxxvi Table of Cases. VAdK Slade r. C'haiiic. [\WH] 1 Cli. 522 : 77 L.J. Ch. H77 ; 1(8 L. T. ;?:.2...23.-), 2i:,, 4(11 Sleenian /•. Wilson (I'^^l)- L- If- 1^^ K'l- '^^> ■ -■' I^-T. (N.s.)4(i8 ; 2(f W. It. KH) 4\)r, Snialhvootl r. Uutter (IS.-.l). !l Haro, 24 ; 20 L. .]. Ch. 3:J2 ; l.") Jur. :!7(i : 17 L. T. (o. s.) 118; 89 K. II. 321 4.->r, Smart r. Pnijean (ISol), i; Vcs. 'y&O ; r. ]{. II. 3'.i.-. 84 Smethui-.st r. Hast iiiirs (188."")), 3(1 Ch. 1>. 4'.in ; .-,.-, L. J. Ch. 173 ; .-.2 L. T. 5(17 ; 33 \V. I'l. 496 27(1.282,283 Smirthwaitc's Trusts. Be (1871^ I- U. H Kq. ^.M : 40 L. J. Ch. 17(5 : 23 L. T. (N. a.) 72(; : lit W. 11. 381 H8!» Smith, Re, Arnold r. Smith. [18!)6J 1 Ch. 171 ; (;.'> L. J. Ch. 269 ; 74 L. T. 14 ; 44 W. II. 280 232 , Re, Champ v. Mai-shallsay (1890). (;4 L. T. 13 45 . Re, Davidson r. Mvrtle. [1896] 2 Ch. 590 ; 65 L. J. Ch. 761 ; 74 L. T. 810 : 45 W. K. 29 277 , Re, Eastick r. Smith, [19()4] 1 Ch. 139 ; 73 L. J. Ch. 74 ; 89 L. T. 604 : 52 W. U. lo4 ; 20 T. L. 11. 66 .... 365. 377 . Re, Henderson-Hoe /•. Hitehins (1889), 42 Ch. D. 302 ; 58 L. J. Ch. 860 ; 61 L. T. 363 ; 37 W. II. 705 352, 383 . i?e, Robson t;. Tidev. unreported, March 15th. 1900. . . .131 , Re. Smith r. Dodsworth, [1906] 1 Ch. 799 ; 75 L. J. Ch. 442 : 94 L. T. 643 : 54 W. 11. 449 : 70 J. P. l(i!t ; 22 T. L. K. 412 252 , Re, r. Lewis, [1902] 2 Ch.667 : 71 L. J.Ch.885 : 51 W. R. 11 276 . Re, r. Thompson, r 1896] 1 Ch. 71 : 65 L. .J. Ch. 159 ; 73 L. T. ^604 : 44 W. R. 27o . . . 278, 317, 328 , j}(._ r. (1902), 71 L. J. Ch. 411 ; 86 L. T. 401 : 18 T. L. R. 432 267. 288, 292 r. Bolden (1863), 33 Beav. 262 432 V. Cherrill (1867), L. R. 4 Eq. 390 ; 36 L. J. Ch. 738 ; 16 L. T. (N. S.) 517 : 15 W. R. 919 lo6 r. Cock, [1911] A. C. 317 : 80 L. J. P. C. 98 ; 104 L. T. 1 . . 350 r. Cooke, [1891] A. C. 297 ; CO L. J. Ch. 607 : 65 L. T. 1 ; 40 W. R. 67 36. 152 r. Cremer(1875), 24 W. R. 51 325 — r. Great Nortliern Rail. Co. (1874). 23 W. R. 126 .... 217 r. Hurst (1852). 10 Hare, 3o : 22 L. J. Ch. 289 : 17 Jur. 3o : 20 L. T. (o. s.) 303 : 90 R. R. 263 35 r. Matthews (1861), 3 De G. F. & J. 139 ; 30 L. .1. Ch. 445 : 4 L. T. (N. S.) 266 ; 9 W. R. 644 ; 7 Jur. (N. s.) 378 . . . . 8o r. Nelson (19(J.5), 92 L. T. 313 466 r. Osborne (1857). 6 H. L. Cas. 375 : 3 Jur.(N.8.) 1181 : r, W. R. 21 143 v. Patrick, [1901] A. C. 282 : 70 L. J. P. C. 19 : 84 L. T. 74o : 17 T. L. R. 477 27(; V. Smith (1856), 21 Beav. 385 394 . V. (1861). 11 C. B. (N. s.) 121 : 8 Jur. (n. s.) 459 : 5 L. T. (N. s.) 447 ; 10 W. R. 18 195 r. (1870), L. R. 5 Ch. 342 : 18 W. R. 742 ... . (12 r. Wardc (184.5), 15 Sim. 56; 15 L. J. Ch. 105; 9 Jur. 981 : 74 R. R. 16 163 r. Wlieekr (1669). 1 Mod. 16 356 Smith's Settled Estates, Re. [1901] 1 Ch. 689 : 70 L. J. Ch. 273 . . 182 Trusts. Re (1870), L. R. 9 Eq. 374 ; 22 L. T. (x. s.) 220 ; 18 W. R. 513 247, 257 Smither r. Willock (1804), 9 Ves. 233 1G9 Snowdon r. Dales (1834), 6 Sim. 524 ; 3 L. J. (n. s.) Ch. 188 : 38 R. R. 173 60, , [1887] W. N. 122 37.->, H8'J — , Rt\ Somer.sot v. I'oiilelt (Lord), [1894] 1 Cli. 2:M ; (;3 L J Cli 41 ; (5!) L. T. 7-1 1 ; 12 W. U. 14o ; 7 K. 34 . . 283, 284, 488, oOJ, .-,(»7 Sonleyv. Clockinakers' Co. (1780), 1 Bro. 0. (J. 81 18 Super r. Arnold (188'J), 14 App. Cas. 429 ; 59 L. J. Cli. 214 ; (Jl L T 702 ' 38 W. K. 449 ' 217 Southampton (Lortl) r. Keitford (Lord) (1813), 2 Vcs. & B.rj4 ; 2 Rose G3 • 13 R. 11. 18 \ iVl Southampton's (Lord) Estate, Re, Allen v. Lord Southanii)ton (1880), KJ Ch. D. 178 ; 50 L. J. Ch. 218 ; 43 L. T. 687 ; 29 W. 11. 231 . . . 287 Southcot V. Watson (1745), 3 Atk. 220 \ 209 Speight, Re. Speight v. Gaunt (1883), 22 Ch. D. 727 299 ■ V. Gaunt (1883), 9 App. Cas. 1 ; 53 L. J. Ch. 419 ; ."jO L.T.330 ; 32 W. R. 435 ; 48 J. P. 84 258, 293, 294, 297, 298, 299, 302 Spence v. Spence (1802), 10 W. R. G05 ; 12 C. B. (n. s.) 199 ; 31 L. J C P 189 ; 6 L. T. (N. s.) 538 1<),-, Spencer, ^e (1881), 51 L. J. Ch. 271 185,520 V. Slater (1878), 4 Q. B. D. 13 ; 48 L. J. Q. B. 204 ; 39 L. T. 424 ; 27W. R. 134 Ill V. Tophara (1850), 22 Beav. 573 ; 2 Jur. (x. s.) 805 ; 28 L.T. (o.s.) 56 ; 111 R. R. 488 179,322 Spencer's Settled Estates, Re, [1903] 1 Ch. 75 ; 72 L. J. Ch. 59 ; 88 L. T. 158 : 51 W. R. 262 394 Spicer, Re, Spicer v. Spicer (1901), 84 L. T. 195 127 Spink V. Lewis (1791), 3 Bro. C. C. 355 153 Spirrett v. Willows (1804), 3 Ue G. J. & S. 293 ; 34 L. J. Ch. 305 ; 12 L. T. (If. s.) 614 ; 13 W. R. 329 ; 11 Jur. (N. s.) 70 loO Sporle /•. Burnaby (1864), 10 Jur. (x. s.) 1142 ; 11 L. T. (N. s.) 412 ; 13 W. R. 151 287 Sprague, Re, Miley v. Cape (1880), 43 L. T, 236 21 Sprange 1!. Barnard (1789), 2 Bro. C. C. 585 18 Spring V. Pride (1864), 4 De G. J. & S. 395 ; 10 Jur. (N. s.) 646 ; 10 L. T. (N. s.) 473 ; 12 W. R. 892 142, 310 Springett r. Dashwood (1860), 2 Giff. 521 ; 3 L. T. (N. s.) 542 ; 7 Jur. (N. s.) 93 323, 324 ■ V. Jenings (1870), L. R. 10 Eq. 488 ; 39 L. J. Ch. 652 ; 23 L. T. (N. s.) 132: 18 W. R. 962 159 Spurgeon v. Collier (1758), 1 Eden. 55 . 525 St. Aubyn r. Humphries (1856), 22 Beav. 175 133 St. John «;. St. John (1805), 11 Ves. 526 150 St. Paul V. Dudley and Ward (1808), 15 Ves. 107 ; 10 R. R. 57 . . .182 Stacey v. Elph (1833), 1 Myl. & K. 195 ; 2 L. J. (N. s.) Ch. 50 ; 30 R. R. 304 187,188,191,192,321 Stackhouse v. Barnston (1805), 10 Ves. 453 494 Stafford v. Fiddon (1857), 23 Beav. 380 ; 113 R. R. 191 . . 208, 403, 4ti5 V. Stafford (1857), 1 De G. & J. 193 ; 4 Jur. (n. s.) 149 . . . 493 Stamford (Lord), Re, Payne v. Stamford, [189()] 1 Ch. 288 ; 05 L. J. Ch. 134 ; 73 L. T. 559 ; 44 W. R. 249 . 378, 383, 391, 394, 441 (Earl) V. Hobart (1710), 3 Bro. P. C, Toml. ed. 31 . . 1 19, 120 Standing f. Bowring (1885), 31 Ch. D.282; 55 L. J. Ch. 218 ; 54 L. T. 191; 34 W. R. 204 100, 101 1-. Gray, [1903] 1 Ir. R. 49 255 Standon f. Bullock (1600), cit. 3 Rep. 82 b 114 Stanford v. Roberts. [1901] 1 Ch. 440 ; 70 L. J. Ch. 203 ; 83 L. T. 756 ; 49 W. R. 315 . . . . . . . . • • • • 255 Staniar v. Evans (1886)] 34 Ch. D. 470 ; 56 L. J. Ch. 581 ; 56 L. T. 87 ; 35 W. R. 286 :^7 Stanierr. Hodgkinson(1903), 73 L. J. Ch. 179; 52 W. R. 260 . . . 230 Stanley, Re, Tennant r. Stanley, [1906] 1 Cli. 131 ; 75 L. J. Ch. 56 ; 93 L. T. 601 ; 54 W. R. 103 -'" V. Lennard (1758), 1 Eden, 87 ; Ambl. 355 H i: Stanley (1878), 7 Ch. D. 589 ; 47 L. J. Ch. 250 ; 37 L. T. 777 ; 26 W. R. 310 -ly'^ -''l". "'1" Stead, Re, Witham /'. Andrew, [1900] 1 Ch. 237 ; 09 L. J.Ch.49 ; 81 L. T. 751 ; 48 W. R. 221 '>^^ 86 Ixxxviii Table of Cases. PAGE Stead r. Mellor (1877). 5 Cli. D. 225 : 4(; L. J. Cli. 880 ; 36 L. T. 408 : 2:> W. R. r.08 18 «'. Newdi2ate(1817), 2 Mer. 521 173 Steeii.^r, Stce'nr. Peebles (ISitO), 25 L. 11. Ir. 511 331 Stenning. Be, Wood v. Steiming, [1895] 2 Ch. 433 : 73 L. T. 207 ; 13 K. 807 475 Stevens r. Kobertson (1868), 37 L. J. Ch. 4;»y ; 18 L. T. (N, s.) 427 ; 16 W. K. 724 216 ■ r. Trevor-Garrick, [1893] 2 Ch. 307 : 62 L. J. Cli. 660 ; 69 L. T. 11 ; 41 W. R. 412 : 3 K. 468 89 r. Van Voorst (1853), 17 Beav. 3i)5 139 Stewards. Poppleton, [1877] "W. N. 29 136,145 Stewart, i?^ (1860), 8 W. II. 297 ; 116 II. R. 928 402 r. Kingsale, [1902] 1 Ir. R. 496 244 r. Sanderson (1870). L. R. 10 Eq. 26 : 39 L. .1. Ch. 337 : 22 L. T. (N. S.) 10 ; 18 W. R. 278 278 Stickland v. Aldridge (1804). 9 Yes. 516 ; 7 R. R. 292 ... 79, 84 Sticknev r. Sewell (1835). 1 Mvl. & Cr. 8 : 43 R. R. 129 . . 283, 309. 320 Stock i'. JIcAvov (1872), L. R. 15 Eq. 55 ; 42 L. J. Ch. 230 ; 27 L. T. (N.s.) 441 : 21 W."R. 520 162 Stocken, .Be, Jones r. Hawkins (1888), 38 Ch. D. 319 : 57 L. J. Ch. 746 ; 59 L. T. 425 4.58 r. Dawson (1843). 6 Bear. 371 : 63 R. R. 116 314 Stokes r. Prance, [1898] 1 Ch. 212 ; 67 L. J. Ch. 69 ; 77 L. T. 595 ; 46 W R. 183 216, 282, 467, 512 Stokes' Trusts, Be (1872), L. R. 13 Eq. 333 ; 41 L. J. Ch. 290 ; 26 L. T. (N. S.) 181 : 20 W. R. 396 374, 375, 456 Stokoe V. Cowan (1861), 29 Beav. 637 ; 7 Jnr. (N. s.) 901 ; 4 L. T. (N. s.) 695 : 9 W. R. 801 106 Stone Be, Baker v. Stone, [1895] 2 Ch. 196 ; 64 L. .J. Ch. 637 : 72 L. T. 815; 44 W. R. 235: 12 R. 415 24 r. Lidderdale(179.5). 2 Anst. .533; 3R. R. 622 59 Stonor r. Curwen (1832), 5 Sim. 264 ; 35 R. R. 156 123 Story r. Gape (1856), 2 Jur. (N.s.) 706: 106 R. R. 974 .... 495 Stott t. Milne (1884). 25 Ch. D. 710 ; 50 L. T. 742 . 247, 257, 258, 331, 429 Straker v. Wilson (1871), L. R. 6 Ch. 503 ; 40 L. J. Ch. 630 ; 24 L. T. (N. s.) 763 ; 19 W. R. 761 224 Strange r. Fooks (1863), 4 Giff. 408 492, 493 Streattield v. Streatfield (1735), Cas. t. Talb. 176 ; 1 Wh. .t Tu. Lead. Cas. (8th ed.) 440 123 Stretton r. Asbmall (1854), 3 Drew. 9 ; 24 L. .1. Ch. 277 : 3 W. R. 4 : 106 R. R. 273 283 Strickland r. Symons (1884), 26 Ch. D. 245 ; 53 L. .1. Ch. 582 : 51 L. T. 406 : 32 W' R. 889 37, 439. 440 Stroud r. Gwyer (1860), 28 Beav. 130 ; 6 Jur. (x. s.) 719 : 2 L. T. (N. s.) 400; 126 R. R. .57 23.5,245 Stroughill r. Anstey fl852). 1 De G. M. & G. 635 : 22 L. .1. Ch. 130 : 16 Jur. 671 : 19 L. T. (o. s.) 106 : 91 R. R. 210 . . . . 337. .3.39 Stuart, JR^, Smith r. Stuart (1896), 74 L. T. 546 .... 4.50.451 Re. r. , [1897] 2 Ch. 583 : 66 L. J. Ch. 780 ; 77 L. T. 128 ; 46 W. R. 41 481, 482 f. Norton (1860). 14 Moo. P. C. 17 ; 3 L. T. (x. s.) 602 ; 9 W. R. 320 296 V. Stuart (1841), 3 Beav. 430 ; 10 L. J. Ch. 148 ; 5 Jur. 3 , . 223 Stubbs V. Sargon (1837), 2 Keen, 2.55 ; 6 L. J. (n. S.) Ch. 254 ; 44 R. R. 241 153 V. — (1838). 3 Myl. & Cr. 507 ; 7 L. J. (n. S.) Ch. 95 ; 2 Jur. 1.50 : 44 R. R. 241 149 Sturgess r. Pearson (1819), 4 Madd. 411 ; 20 R. R. 316 . . . .170 Styles r. Guy (1849), 1 Mac. & G. 422 ; 19 L. J. Ch. 185 ; 1 Hall A: Tw. .523 ; 14Jur. 3.55; 84 R. R. Ill 190,277.308 Sudeley (Lord) and Baines & Co., Be, [1894] 1 Ch. 334 ; 63 L. .]. Ch. 194 : 70 L. T. 549 ; 42 W. R. 231 ; 8 R. 79 65, 359 SuflFolk T. Lawrence (1884), 32 W. R. 899 447. 451 Sudden V. Crossland (1856), 3 Sm. A: G. 192 : 25 L.J. Ch. 563 ; 2 Jur. (N.s.) " 318; 4 W. R. 343 178 Sullivanr.SulliTan, [1903] 1 Ir. R. 193 83 Surtees r. Surtees (1871), L. R. 12 Eq. 400 ; 25 L. T. (n. s.) 288 ; 10 W. R. 1043 122 800, :U»7, 478 8S3, 441 77 11 L. . IL'C T. 1:^8. 14L' 328, H33 T. (N. S.) 60, 69 Table of Cases. Ixxxix PA OK Simnni,J?<;(18^0> l" r^- •^- f "'•''•">:-'■' W. 11. n:? 1>1 Sutton, Rp, Stone r. Att.-Gcn. (18S:.), 28 CIi. 1). ICI ; ."I L. J. Cli. ClU • :{:i w. R. v>v^ i)() V. Jones (isoi)). ir. \' OS. nsi \\>\ -w. Wildcrs (1S71), L. U. 12 Kq. :{7:5 ; II L. .1. Ch. :!o ; 25 L T (N. sO 2!)2 ; 1!»W. R. 1021 2,SK Sutton's Trusts, i2(?(1879), 12 Ch. D. 175 ; 48 L. .1. Ch. .■?50 ; 27 W. R. 521). 44H Swaffiekl v. Nelson, [1876] W. N. 255 270, 2H2 Swain, Re, Phillips r. Poole (1908), 99 L. T. 604 : 24 T. L. R. 882 . . ' (;:{ , Rr, Swain v. F.ringeman, [1891] 3 Ch. 233; 01 L. J. Ch. 20; 65 L. T. 296 488 Swale V. Swale (1856), 22 Beav. 584 ; 111 R. R. 495 . Swan, Rr (1864), 2 Hem. & M. 34 ; 12 W. R. 738 .. . Swasey r. American Bible Society (1869), 57 Me. 527 . Sweetapple v. Bindon (1706), 2 Vern. 536 V. Horlock (1879), 11 Ch. D. 745 ; 48 L. J. Ch. 660 272 : 27 W. R. 865 Swinnock v. Crisp (1681), Freem. 78 Sykes v. Sykes (1871), L. R. 13 Eq. 56 ; 41 L. J. Ch. 25 ; 25 L 560 : 20 AV. R. 90 Symes v. Hughes (1870), L. R. 9 Eq. 475 ; 89 L. .1. Ch. 304 : 22 T.. T. (N. s.) 462 1.5.5, 1.57, 166 Svnge V. Synge, [1894] 1 Q. B. 466 35 Synnot v. Simpson (1854), 5 H. L. Cas. 121 : 101 R. R. 81 . . . . 3f; T. Tabor r. Brooks (1878), 10 Ch. D. 273 ; 48 L. .J. Ch. 130 ; 39 L. T. 528 . 231, .327, 328 Tailby v. Official Receiver (1888), 13 App. Cas. 523 ; 58 L. J. Q. B. 75 ; 60 L. T. 162 ; 37 W. R. 513 56 Tait V. Lathbury (186.5), L. R. 1 Eq. 174; 35 Beav. 112; 11 ,lur. (N. s.) 991 ; 14 W. R. 216 126 Talbot (Earl) v. Hope-Scott (1858), 4 Kay & J. 139 ; 116 R. R. 271 . 476, 477 V. Jevers (187.5), L. R. 20 Eq. 255 ; 44 L. J. Ch. 646 ; 23 AV. R. 741 356 V. Marshfield (1868), L. R. 3 Ch. 622 ; 19 L. T. (N. s.) 223 . . 323 V. O'Sullivan (1880), L. R. Jr. 302 34 r. Radnor (Earl) (1834), 3 Myl. k, K. 252 ; 41 R. R. 64 . . 287. 455 Tallatire, iJ^-, [1885] W. N. 191 379. 3S9. 392 Tanquerav-Willaume and Landau. Re (1882), 20 Ch. D. 465 ; 51 L. J. Ch. 434 ; '46 L. T. 542 ; 30 W. R. 801 ; 15 T. L. R. 332 . . 194, 200, 339 Tapp and London and India Dock Co., i?e(1905), 92 L. T. 829 ; 74 L. J. Ch. 523 271 Tappendenr. Walsh (1811), 1 Phillim. .352 17 Tarleton r. Hornby (1835), 1 Y. & Coll. E.x. 336 500 Tatam v. Williams (1844), 3 Hare, 347 ; 64 R. R. 325 .... 496 Tate v. Williamson (1866), L. R. 2 Ch. 55 ; 15 L. T. (N. s.) 549 ; 15 W. R. 321 9.5, 99, 322 Tattersall, Re, Topham r. Armitage, [1906] 2 Ch. 399 ; 75 L. J. Ch. 680 ; 95 L. T. 353 ; 54 W. R. 603 ; 70 J. P. 537 ; 4 L. G. R. 1083 . 273, 274 Taylor, Re, Atkinson v. Lord (1900), 81 L. T. 812 487 , iZe, Kiddr. Tatham (Feb. 28th, 1912) 427 , Re, Taylor r. Wade. [1894] 1 Ch. 671 ; 63 L. J. Ch. 424 ; 70 L. T. 5.56; 42 W. R. 373; 8 R. 186 . .... .509,515 v. Blakelock (1886), 32 Ch, D. 560 ; 56 L. J. Ch. 390 ; 55 L. T. 8 . 6 r. Chester (1869), L. R. 4 Q. B. 309 : 10 B. k S. 237 ; 38 L. .J. Q. B. 225 ; 21 L. T. (N. s.) 359 l-">-''' r. Clark (1841), 1 Hare, 161 ; 11 L. J. Ch. 189 ; 6 Jur. 76 . .241 Coenen (1876), 1 Ch. D. 636 ; 34 L. T. (n. s.) 18 . . - 106 -y. Haygarth (1844), 14 Sim. 8 ; 65 R. R. 530 -'07 V. London and County Banking Co., [1901] 2 Ch. 231 ; 70 L. .1. Cii. 477 : 84 L. T. .397 ; 49 W. R. 451 527 xc Table of Cases. PAGE Taylor /■. Mc;i.ls (l.SC:.^ -.11 L. J. C'li. l.'0:5 ; 1 Do (J. J. A: S. r,;»7 ; U W. K. Hid; r> X. K. 848 ; 12 L. T. (N. s.) (5 ; 11 .lur. (N. s.) IGC . DO, 'J2 r. Plumer (181."i), :i Man. .V: S. r>G2 ; 2 Rose, 415 ; Hi U. 11. HOI . 471, 472, 478 r. Itussell, [1892] A. C. 214 : 01 L. J. C'li. 0:>7 ; GC, L. T. .-,(;:> ; 41 W. K. 48 ^27 /•. Tabrum (1838). G Sim. 281 ; 1 L. J. (x. s.) Ch. 189 ; 88 K. K. 11.1 . . ■ 342 V. Taylor (IS-IS), 8 DeG. JI. & G. 190 ; 22 L. J. Ch. 742 ; 17 .Tur. 588 ; 1 W. K. 898 : 21 L. T. (o. S.) 218 ; 98 R. K. 104 . 1(;8 v. (1874), L. 11. 17 Eq. 324 838 Taylor's Trusts, Be, Matheson v. Tavlor, [190.">] 1 Ch. 784 : 74 L. J. Ch. 419 : 92 L. T. r,.-j8; .o3\V. R. 411 28.", Teasdale c. Braithwaite (187G), 4 Ch. D. 8." : 4G L. .J. Ch. 39(; : 3."> L. T, r,90 : 2.1 W. R. 222 117 r. (1877). o Ch. D. 630 ; 40 L. .1. Cli. 72.". ; 8G L. T. 001 : 2.-> \V. R. o40 117 Tebbsn Carpenter (1816), 1 Madd. 290 : 10 R. R. 224 . . . 202 Tee r. Ferris (1810). 2 Kay & J. 8.17 ; 2.5 L. .J. Ch. 487 ; 2 .Jur. (N. s.) 807 : llOR. R. 262 8.1 Tempest, i?p (1800). L. R. 1 Ch. 48.1: 3.1 L. .J. Ch. 6.32 ; 12 Jur. (N. s.) 539 ; 14 L. T. (x. .s.) 688 ; 14 W. R. 8.10 . . . .392 r. Camoys (Lord) (1860), 3.1 Beav. 201 ; 14 L. T. (N. S.) 8 : 14 W. R. 326 18 V. (1882), 21 Ch. D. 571 ; 51 L. .J. Ch. 785 ; 48 L. T. 13 : 81 W. R. 320 . . . . 329 ,-. (1882), 21 Ch. U. 570, ii 830 r. — (1888), 58 L.T. 221 ; 52 J. P. 582 . . . 393 Temple c. Thrins (1887), 50 L. . J. Ch. 707 208 Teunant r. Trenchard (18G9), L. R. 4 Ch. 537 ; 38 L. .J. Ch. 601 : 20 L. T. (X. s.) 856 815 Thatcher's Trusts, lie (1884), 26 Ch. D. 420 ; 53 L. .1. Ch. 1050 : 32 W. R. 679 833, 351 Thellusson r. Woodford (180.1), 11 Ves. 112 ; 8 R. R. 104 . . . . 66 Theobald, lie (1903), 19 T. L. R. 536 280 Thomas, Me, Weatherall r. Thomas. [1900] 1 Ch. 319 : 69 L. .1. Ch. 198 : 48 W. R. 409 250 , Rf, Wood r. Thomas, [1891] 3 Ch. 482 : 00 h. .J. Ch. 781 : 65 L.T. 142 ; 40 W, R. 75 283,238 r. Kelly (1888). 18 App. Cas. 506 ; 58 L. .1. Q. B. 00 : 00 L. T. 114 : 87 W. R. 813 56 r. Thomas (1796), 6 T. R. 071 ; 3 R. R. 800 19 Thomasoii i: Moses (1842), 5 Beav. 77 ; Jur. 408 19 Thompson, l{p, Thompson r. Thompson, [1!)OOJ 2 Ch. 199 ; 75 L. J. Ch. 599 ; 95 L. T. 97 ; 54 W. R. 613 . , .63 .Be, v.Watkins, [1908] W. N. 195 . . . .248 r. Cllve(1848), 11 Beav. 475; 83 R. R. 224 . . . .324 V. Finch (1856). 22 Beav. 316 .101, 504 V. (18.16), 8 De G. M. & G. 560 ; 25 L. J. Ch. 681 ; 114 R. R. 247 .308, 501, .104 r. Fisher (1870), L. R. 10 Eq. 207 ; 18 W. R. 860 . 120, 121, 127 V. Simpson (1841), 1 Dru. & War. 4.19 ; 58 R. R. 298 . . . 520 f. Thomas (1891), 27 L. R. Ir. 457 69 V. Webster (1859), 4 Drew. 628 ; 5 Jur. (n. s.) 668 ; 7 W. R. 596 Ill Thompson's Settlement Trusts, Re, Thompson v. Alexander, [1905] 1 Ch. 229 ; 74 L. J. Ch. 133 : 91 L. T. 835 ; 21 T. L. R. 86 . . . 377, 396 Thomson r. Clydesdale Bank, [1893] A. C. 282 ; 62 L. J. P. C. 91 ; 67 L. T. 1.16; 1 R. 2.15 185, 475, .120 f. Eastwood (1877). 2 App. Cas. 215 322,497 V. Shakespeare (1859), Johns. 612 ; 8 \V. R. 124 ; 1 L. T. (X. .s.) 398; 6 Jur. (N. s.) 118 61 Tliorley, Re, Thorley t: Massam, [1891] 2 Ch. (n3 ; 60 L. J. Cli. 537 ; 04 L.T. 515 ; 39 W. R. 505 37,813 Thornborouf,'h v. Baker (1677), 1 Ch. Cas. 283 ; 2 Wh. cV: Tu. Lead. Cas. (7th ed.) 1 181 Table of Cases. xci i'Af;K Tliorndikc r. Hunt (ISSit), :? Do (!. &: J. neS ; 28 L. J. Ch. 417 ; Sli F.. T. (O. S.) H4(; ; 5 .Iiir. (n. s.) S7!t ; 7 W. R. 24() ; 121 U. 11. 2;J2 . . -,2r, Tlionie r. Ileiird, [18'.»5] A. C. 4!)."", ; G4 L. J. (!li. U.52 ; 73 I.. T. 2'Jl : 11 W. 11.155; 1111.254 484, 4S'.» Thoniliill, y*"/-, Thornhill r. Nixon, [li)Ul] W.N. 112 IJtJo 'I'hoviw, J{e, V iiwiit «. Kadcliffe, [18iUJ 2 CJIi. iJOd ; GO L. J. Cli. 521); CI L. T. .-)54 17.S, :n7 ~ V. Owen (1842), .5 Bcav. 224 ; 11 L. J. Ch. 121) ; 51) K. 11. 484 . . 43 Thuisby V. Thursby (1875), L. R, 19 Eq, 395 ; 44 L. J. Ch. 289 ; 32 L. T. (N."s.) 187 : 23 W. R. 500 232, 23(; Thurston r. Dickinson (184(i), 2 Rich. Eq. 317 252 Tibbits^^ Tibbits(1816), 19 Vos. ()57 18 Tickner r. Old (1874), L. R. 18 Eq. 422 ; 31 L. T. (N. s.) 29 ; 22 W, R. 871 230, 233 Tidd, lie, Tidd v. Oveix-U, [1893] 3 Ch. 154 ; 62 L. J. Ch. 915 : G9 L. T. 255 ; 42 W. R.25; 3 R. 057 183 r. Lister (1820), 5 Madd. 429 ; 21 R. R. 323 3(J1 Tierney i'. Wood (1854), 19 Beav. 330 ; 23 L. J. Ch. 895 ; 2 \V. R. 577 ; 105 R. R. 164 42, 78 Tillott, Jle, Lee v. Wilson. [1892] 1 Ch. 86 ; (il L. .J. Ch. 38 ; 65 L. '1'. 781 ; 40 W. R. 204 323, 325 Timmis, Be, Nixon v. Smith, [1902] 1 Ch. 176 ; 71 L. J. Ch. 118 ; 85 L.T. 672 ; 50 W. R. 164 488 Titley v. Wolstenholme (1844), 7 Beav. 425 ; 13 L. J. Ch. 410 : 64 R. R. 106 371 Todd r. Moorhouse (1874), L. R. 19 Eq. 69 ; 32 L. T. (N. s.) 8 ; 23 W. R. 155 182, 249 V. Studholme (1857), 3 Kay & J. 324 ; 26 L. J. Ch. 271 ; 5 W. R. 277 ; 112 R. R. 164 513 V. Wilson (1846), 9 Beav. 486 ; 15 L. .J. Ch. 450 ; 10 Jur. 626 : 73 R. R. 408 312 Tollemache, Me, [1903] 1 Ch. 457 ; 72 L. J. Ch. 225 ; 88 L. T. 13 ; 51 W. R. 568 214, 219, 220, 221, 231 , Re, [1903] 1 Ch. 955 ; 72 L. J. Ch. 539 ; 88 L. T. 670 ; 51 W. R. .597 214, 219, 221 Toller r. Attwond (1850), 15 Q. B. 929 ; 20 L. J. Q. B. 40 ; 81 R. R. 852 201 Tomlinson, He, Tomlinson v. Andrew, [1898] 1 Ch. 232 ; 67 L. J. Cii. 97 : 78 L. T. 12 ; 46 W. R. 299 250, 254 r. Gill (1756), Ambl. 330 51 Tooke r. Hollingworth (1793), 5 T. R. 215 ; 2 H. Bl. 501 ; 2 R. R. 573 . 472 Torre c. Torre (1853), 1 Sm. & G. 518 ; 1 Eq.R. 364 ; 1 W. R. 490 ; 21 L.T. (0. S.) 239 ; 96 R. R. 464 97 Touche r. Metropolitan Railway Warehousina; Co. (1871), L. R. 6 Ch. 671 ■. . . ^ :^8. 48 Towndrow. Be, Gratton v. Machen, [1911] 1 Cli. 662 ; 80 L. J. Ch. 378 : 101 L.T. 534 514 Townead r. Townend (1859). 1 GifE. 201 ; 5 ,Jur. (N. s.) 506 ; 7 AV. R. 529 ; 114 R. R. 405 466 Townley v. Sherborne (1634), Bridg. 35 ; 2 Wh. & Tud. Lead. Cas. (7th ed.) 629 306, 307, 308 Townsend v. Westmacott (1840), 2 Beav. 340 ; 9 L. J. (n. s.) Ch. 241 ; 4 Jur. 187 ; 50 R. R. 193 107 Townsend's Contract, Be, [1895] 1 Ch. 716 ; 64 L. J. Ch. 334 ; 72 L. T. 321 ; 43 VV. R. 392 ; 13 R. 328 19.5, 2ul Townshendt'. Harrowby (1858), 27 L. J. Ch. 553 ; 6 W. R. 413; 4 Jur. (N. S.) 353 i:^0, 133, 135 Townson r. Tickell (1819), 3 B. & Aid. 31 ; 22 R. R. 291 . . . 187, 190 Train r. Clapperton, [1908] A. C. 342 ; 77 L. J. I'. C. 124 . . . H29, 362 Travis, Be, Frost r. Greatorex, [1900] 2 Ch. 541 ; 69 L. J. Cli. 663 ; 83 L. T. 241 ; 49 W. R. 38 159,356 r. Illingworth (1865), 2 Dr. & Sm. 344 ; 34 L. J. Ch. 481 ; 11 Jur. (N. s.) 215 ; 12 L. T. (n. s.) 134 ; 5 N. R. 427 ; 13 W. R. 489 . . 382 Tregonwell r. Sydenham (1815), 3 Dow. 194 ; 15 R. R. 40 . . . 153, 159 Trevor r. Trevor (1720), 1 P. Wms. 622 ; 10 Mod. 436 .... 123 -y. (1847), 1 H. L. Cas. 239 ; 73 R. R. 58 . • . • 120 xcii Table of Cares, PACK Trowcll r. Shentnn (187.S), S Ch. D. 818 : 47 L. J. Ch. 738 ; 3S L. T. SfiD ; 2G W. K. 837 81. 115, IIG Trutclw. Lampiell(1855), 20Beav. lie, 309 Tryon, i?e(1844), 7 Beav. 496; (U U. U. 132 189 Tucker, Br, Tucker r. Tucker, [1893] 2 Ch. 323 ; 62 L. J. Ch. 442 ; (19 L. T. 8.-. : 41 W. K. 505 ; 3 11. 436 . . . 338 , i2^, r. , [1894] 1 Ch. 724 276 , ]{,.^ \r. , [1894] 3 Ch. 429 ; 63 L. J. Ch. 737 ; 71 L. T. 453; 12 R. 141 276 V. Bennett (1887), 38 Ch. D. 1 ; 57 L. J. Ch. 507 ; 58 L. T. 650 . 99 r. Burrow (1865), 2 Hem. A: M. 515 : 12 Jur. (N. s.) 485 : 34 L. J. Ch. 478 ; 13 W. K. 771 160, 166 r. Hernaman (1853), 4 De G. M. & G. 395 ; 22 L. J. Ch. 791 ; 17 Jur. 723 ; 102 K. II. 186 456 Tufnell. i?^, Byn Uiiiacke, Re (1844), 1 Jo. & Lat. 1 ; (JS R. R. 220 191 Union Bank of Australia r. Murray-Aynsley, [1898] A. C. 693 ; 67 L. J. P. C. 121 520 Upfull's Trust, Re (1851), 3 Mac. & G. 281 ; 21 L. J. Ch. 1 19 . . . 443 Upton r. Brown (1879). 12 Ch. D. 872 ; 48 L. J. Ch. 756 ; 41 L. T. 340 ; 28 W. R. 38 151 r. (1884), 26 Ch. D. 588 ; 54 L. J. Ch. CI 4 : 51 L. T. .591 ; 32 W. R. 679 251 Urcli r. Walker (1838), 3 Myl. A: Cr. 702 ; 7 L. J. (x. s.) Ch. 292 ; 2 Jnr. 487 ; 45 R. R. 360 . " 190 Table of Cases. xciii V. PAGE Vachell r. Roberts (1863), :^2 Beav. 140 232 Valletoit Sanitarv Steam Laundry Co., Re, Waid r. Valletort Sanitary Steam Laundry Co., [1903] 2 Ch. (554 ; 72 L. J. Cli. 674 ; 8'J L. T. 60 r>27 Vandenburs r. Palmer (18.">8), 4 Kay & J. 201 ; 1 Ki R. R. 2t»!) . . . 44 Van Grutten r. Foxvvcll, [1897] A. C. 658 ; 66 L. J. Q. B. 745 ; 77 L. T. 1 70 ; 46 W. R. 426 1 96, 202 Vansittart v. Vausittart (1858), 2 De G. & J. 249 ; 27 L. J. Gh. 289 ; 4 Jiir. (N. s.) 519 ; 6 W. R. 386 ; 119 R. R. 10!l 70 Van Straubenzee, lie, Boustead v. Cooper, [1901] 2 Ch. 779 ; 70 L. J. Ch. 825 ; 85 L. T. 541 ; 17 T. L. R. 755 229 Varncy r. Stevens (1843), 22 Me. 331 2.50 Vaughan, E,v jiavte, Mr Riddeoiigh (1884), 14 Q. B. D. 25 ; 33 W. R. 151 ; 1 Morrell, 258 436 — — Rr, Vaughan v. Thomas (1886), 33 Ch. D. 187 ; 55 L. T. 547 ; 35 W. R. 104 ; 51 .J. r. 70 61.77 Vaughton r. Noble (1864), 30 Beav. 34 .5(i9 Venablesy. Foyle (1660), 1 Ch. Cas. 3 isi V. Morris (1797), 7 T. R. 342 ; 4 R. R. 455 1!)6 Venn and Furze's Contract, Re, [1894] 2 Ch. 101 ; 63 L. J. Ch. 303 ; 70 L. T. 312 ; 42 W. R. 440 ; 8 R. 220 339 Verney's Settled Estates, Tie, [1898] 1 Ch. 508 ; 67 L. J. Ch. 243 ; 78 L.T. 191 ; 46 W. R. 348 256 Vernon, Evvens, & Co., Re (1886), 33 Ch. D. 402 ; 56 L. J. Ch. 12 ; 55 L. T. 416 ; 35 W. R. 225 6 Viaut, Re (1874), L. R, 18 Eij. 436 ; 43 L. J. Ch. 832 ; 30 L. T. 544 ; 22 W. R. 686 Ill Vicat. Re (1886), 33 Ch. U. 103 ; 55 L. J. Ch. 843, n. ; 54 L. T. 891 ; 34 W. R. 645 391, 402 Vicery r. Evans (1863), 33 Beav. 376 ; 33 L. J. Ch. 261 ; 10 Jur. (N. s.) 30 ; 9 L. T. (N. s.)822 ; 12 W. R. 237; 3N. R. 286 287 Viditz r. O'Hagan, [1900] 2 Ch. 87 ; 69 L. J. Ch. 507 ; 82 L. T. 480 : 48 W. R. 516 ; 16 T. L. R. 357 61, 75, 88, 133 Villiers v. Villiers (1740), 2 Atk. 71 200 Vincent v. Vincent (1886), 35 W. R. 7 45, 82 Vine r. Raleigh, [1891] 2 Ch. 13 ; 60 L. J. Ch. 675 . . . . 66, 67 Von Brockdorff r. Malcolm (1885), 30 Ch. U. 172 ; 55 L. J. Ch. 121 ; 53 L. T. 263 ; 33 W. R. 934 425 Voyle V. Hughes (1854), 2 Sm. & G. 18 ; 23 L. J. Ch. 238 ; 18 Jur. 341 ; 2 Eq. R. 42; 2 W. R. 143 41 Vyse r. Foster (1872), L. R. 8 Ch. 309 ; 42 L. J. Ch. 245 ; 27 L. T. (X. s.) 774 ; 21 W. R. 207 466, 470 r. (1874), L. R. 7 H. L. 318 ; 44 L. J. Ch. 37 ; 31 L. T. (N. s.) 177 ; 23 W. R. 355 316, 332, 466, 470 w. Waidanis, l^fi, Rivers v. Waidanis, [19USJ I Ch. 123 ; 77 L. .J. Ch. 12 ; 97 L.T. 707 37l>, 371 Waite '('. Littlewood (1872), 41 L. J. Ch. 636 -''^i' Walcott V. Lyons (1886), 54 L. T. 786 ; 50 J. P. 772 2S3 Waldo V. Waldo (1835), 7 Sim. 261 ; 40 R. R. 134 . . . 327, 331, 331 Walhampton, Re (1S84), 26 Ch. D. 391 ; 53 L. .1. Ch. lOiKi : 51 b. T. 280 ; 32 W. R. 874 42 Walker, Re (1841), Cr. & I'h. 147 ; 10 L. J. Ch. 355 ; 5 Jur. 571 ; 51 K. It. 253 I" I , Re, Mackintosh-Walker v. Walker, [I'.Mi.s] 2 Cli. 7u5 ; 77 L. .1. Cli. 755 ; 99 L. T. 4()9 60, 67 , Re, Summers v. Barrow, [1901] 1 Ch. 259 ; 70 L. J. Ch. 229 ; 49 W. R. 167 :^8^. 3«3 -, Re, Walker v. Duncombe, [1901] 1 Ch. 879 ; 70 L. J. Ch. 417 ; 84 L.T. 193; 49 W.R. 394 . . . . . . . 220,221,434 xciv Table of Cases. PAGE Walker, Re, Walker i\ Walker (1890), 62 L. T. 449 ; oO L. J. Ch. 38(> . 227, 281, 284, 285, 464 V. Armstrong (1856), 8 De G. M. & G. 531 : 25 L. J. Ch. 788 ; 2 .Tur. (N. s.) 95!) ; 4 W. R. 770 ; 114 R. R. 234 .... 96 r. Liuom, [19U7] 2 Ch. li)4 ; H\ [.. .J. Ch. .500 ; 97 L. T. 92 . 518, 52(i. 527 '•. Smalhvood (1768), Ambl. 67() 354 c. Southall (1887), 56 L. T. S82 337 c. Svmonds (1S18), 3 Swans. 1 ; 19 R. R. 155 . 3U7. 308, 492, 498, 503 r. WethercU (1801), 6 Ves. 473 333 and Hughes' Contract, Re (1883), 24 Ch. D. 698 ; 53 L. J. Ch. 135 : 49 L. T. 597 380 and Oakshotfs Contract. Re, [1901] 2 Ch. 383 : 70 L. J. Ch. 666 ; 84 L. T. 809 ; 50 W. R. 41 . . 342, 345 ,i?c. [1902] W.X. 147 . . . 342,345 Walkers Settled Estate, Re, [1894] 1 Ch. 189 ; 63 L. J. Ch. 314 ; 70 L. T. 259 ; 8 R. 370 255 Walters v. Woodbridge (1878), 7 Ch. D. 504 ; 47 L. J. Ch. 516 ; 38 L. T. S3 ; 26 W. R. 469 429 Walton r. Walton (1807), 14 Ves. 322 149, 150 Wahvvn r. Coutts(181.5), 3 Sim. 14 ; 30 R. R. 117 .36 Wanklyn v. Wilson (1887), 35 Ch. D. 180 ; 56 L. J. Ch. 209 ; 56 L. T. 52 ; 35 W. R. 332 477 Want v. Campain (1893), 9 T. L. R. 254 282 r. Stallibrass (1873), L. R. 8 Ex. 175 : 42 L. .J. E.x. 108 ; 29 L. T. (K. s.) 293 : 21 W. R. 685 217,335 Warburton v. Sandys (1845), 14 Sim. 622 ; 14 L. J. Ch. 431 ; 9 Jur. 503 ; 65 R. R. 652 365 Ward, Re, Bemment r. Balls (1878), 47 L. J. Ch. 781 288 V. Audland (184.5), 8 Beav. 201 ; 14 L. J. Ch. 145 ; 9 Jur. 384 ; 68 R. R. 65 42, 43 V. Butler (1824). 2 Moll. 533 190 r. Ward (1843), 2 H. L. Cas. 777, n 260, 327, 330 — — . Lock & Co. r. Long, [1906] 2 Ch. 550 ; 75 L. J. Ch. 732 ; 95 L. T. 345 : 22 T. L. R. 798 56 Warden c. .Jones (1857), 2 De G. & .J. 76 ; 27 L. .1. Ch. 190 : 4 Jur. (N. s.) 269 : 6 W. R. 180 ; 119 W. R. 29 81 Ware i: Cann (1830), 10 B. & C. 433 : 8 L. ,J. (o. S.) K. B. 164 ; 5 Man. & Ry. 341 ; 34 R. R. 469 69 r. Gardner (1869), L. R. 7 Eq. 317 ; 38 L. J.Ch. 348 ; 20 L. T. (N. S.) 79 : 17 W. R. 439 107 r. Mallard (1851), 16 Jur. 492 ; S. C. (Wace v. Mallard) 21 L. J. Ch. 355 25 Waring /•. Waring (1852), 3 Ir. Ch. Rep. 331 266, 283 Warren '•. Murray, [1894] 2 Q. B. 648 ; 64 L. J. Q. B. 42 : 71 L. T. 458 : 43 W. R. 3 ; 9 R. 793 203 Warrick r. Warrick and Kni vet on (1745), 3 Atk. 291 520 Warriner e. Rogers (1873), L. R. 16 Eq. 340 ; 42 L. J. Ch. 581 ; 28 L. T. (N, S.) 863 : 21 W. R. 766 44 Wartor r. Anderson (1S.53), 11 Hare, 301 : 1 W. R. 493 ; 1 Eq. R. 266 ; 21 L. T. (o. s.) 219 : 90 R. R. 709 434, 442 Warwick r. Richardson (1842), 10 Mec. ^: W. 284 ; 11 L. J. E.x. 351 ; 62 R. R. 608 504 Wassell r. Leggatt, [1896] 1 Ch. 554 ; 65 L. J. Cli. 240 ; 74 L. T. 99 ; 44 W. R. 298 489 Waters, iZc, Preston r. Waters, [1889] W. X. 3!t 227 r. Waters (1857), 26 L. .1. Ch. 624 ; 3 Jur. (N. s.) 654 ; 112 R. R. 434 , 171 Watkin.s r. Williams (1851), 3 Mac. .V:(J.622 : 21 L. .1. Ch. 601 : 16 Jur. 181 . 68 Watson, Re (1881), 19 Ch. D, 384 ; 45 I>. T. 513 ; 30 W. R. 554 . . .404 r. Hayes (1839), 5 Myl. & Cr. 125 ; \) L. .1. (n. s.) Ch. 49 : 4 Jur. 186; 48 R. R. 249 149, 151 r. Pearson (1848), 2 Ex. 581 ; 18 L. J. Kx. 46 ; 76 R. R, 689 . 196, 197, 199, 200 V. Wocdman (1875). L. R. 20 E.|. 721 ; 45 L..I. Ch. 57 ; 24 VV. R. 47 . 184 V. Young (1885), 28 Ch. D. 436 ; 54 L. J. Ch. 502 ; 33 W. R. 637 . 61, 73, 74 Watts V. Girdlestone (1843), 6 Beav. 188 ; 12 L. J. Ch. 363 ; 7 Jur. 501 ; 63 R. R. 49 461 Table of Cases. xcv PACK Watts's Settlement, Rr (18.")!), !) Hare, lOG ; 20 L, J. Cli. 337 ; l."i Jur. l.">9 378, 37'J Waugh's Trusts, Re, (1S77), 2.-. W. R. :,■:,-, : 4(5 L. J. Ch. (•)2!t . . . 2:.(> Weall, Re, Andrews v. Wcall (1883), 12 Ch. D. (571 ; 58 [.. ,[. (Jh. 713 ; (U L. T. 238 ; 37 \V. K. 77't 247, 21)3, 294, 2!)') Weaver, Re (1882), 21 Ch. D. (U.") ; 48 L. '1'. !)3 : 31 W. 11. 224 . . . 32;> Webb, Re, Lambert r. Still, [I8!J4] 1 Ch. 73 : (13 L. .1. Ch. IV> : 77 L. J. Ch. (171 ; :)S L. T. 882 : 3(> W. R. 6(J6 270, 2S2 r. Ledsam (185o), 1 Kay l*c J. 385 ; 1 ,Jur. (N. s.) 77.") ; 103 R. R. 138 3ii.s. .512 t'. Lu^ar (183G), 2 Y. & Coll. E.x. 247 ; (5 L. ,J. (n. s.) E.\. K(]. 49 ; 4 7 k. R. 407 177 r. Sadler (1873), L. R. S Ch. 419 : 42 L. .J. (Jli. 498 .... 427 I'. Shaftesbury (P:arl) (1802), 7 Ves. 480 : (1 R. R. 154. ..312, 315, 317, 478 Webster r. Le Hunt (18(51), 9 W. R. 918 ; 8 .Jur. (N. s.) 345 ; 4 L. T. (x. s.) 723 ; 122 R. R. 970 2(59 Wedderburn, Re (1878), 9 Ch. D. 112 ; 47 L. J. Ch, 743 ; 38 L. T. 904 ; 27 W. R. 53 21fi, 278 — i: Wedderburn (No. 4) (1856), 22 Beav. 84 ; 25 L. J. Ch. 710 ; 2 Jur. (N. s.) 674 : 111 R. R. 2(i7 315 Weeding's Estate, ^e (1858), 4 Jur. (N.s.) 707 ; 111 R. R. 894 . . . 391 Weekes' Settlement, Re, [1897] 1 Ch. 289 ; 66 L. J. Ch. 179 ; 76 L. T. 112 ; 45 W. R. 265 16, 22 Weir r. Bell (1878), 3 Ex. D. 238 ; 47 L. J. Ex. 704 ; 38 L. T. 929 ; 26 W. R. 746 2(i7 Wellborne, Re, [1901] 1 Ch. 312 ; 70 L. J. Ch. 172 ; 83 L. T. CAl ; 49 W. R. 113 313, 431 Wellesley v. AVellesley (1839), 4 Myl. & Cr. 561 ; 9 L. J. (n. s.) Ch. 21 ; 4 Jur. 2 ; 48 R. R. 172 35 Wells, Re, Boyer v. Maclean, [1903] 1 Ch. 848 ; 72 L. J. Ch. 513 ; 88 L. T. 355 ; 51 W. R. .521 22(i, 221 , Re, Wells v. Wells (1889), 43 Ch. D. 281 ; 59 L. .1. Cli. 113 ; 61 L. T. 806 ; 88 W. R. 327 350 V. Malbon (1862), 31 Beav. 48 ; 31 L. J. Ch. 344 ; 8 Jur. (N.s.) 249 ; 6 L. T. (X. s.) 32 ; 10 W. R. 364 -156, 458 Wenlock (Lady) r. River Dee Commissioners (1887), 19 Q. B. D. 155 ; :'>(> L. J. Q. B. 589 ; 57 L. T. 320 ; 35 W. R. 822 439 AVentworth v. Wentworth, [19001 A. C. 163 ; 69 L. J. P. C. 13 ; 81 L. T. 682 ..... 234, 239, 240, 242 West, Re, George t: Grose, [1900] 1 Ch. 84 ; 69 L. J. Ch. 71 ; 81 L. T. 720 ; 48 W. R. 138 IW, 153 r. Williams, [1898] 1 Ch. 488 ; 67 L. J. Ch. 213 ; 78 L. T. 147 ; 46 W. R. 362 • • ^>^ West London Commercial Bank v. Reliance Permanent Building Society (1885), 29 Ch. D. 954 ; 54 L. J. Ch. 1081 ; 53 L. T. 442 ; 33 W. R. 916 526 West of England and South Wales District Bank r. Murch (1883), 23 Ch. D. 138 ; 31 W. R. 467 ; 52 L. J. Ch. 784 ; 48 L. T. 417 . . 218, 384 Westley v. Clark (1759), 1 Eden, 357 '-^^'^ Westmcath v. Westmcath (1830), 1 Dow & CI. 519 ; S. C. (Westmcatli v. Salisbury) 5 Bligh (n. s.), 339 ; 35 R. R. 54 -"'^ Weston, Re, Davies v. Ta-^^art, [1900] 2 Ch. 164 : 69 L. J. Ch. 555 ; 82 L. T. 591 : 48 W. R. 4(57 509. 51.. Wethered v. Wethered (1828), 2 Sim. 183 ; 29 R. R. 77 Wetherell r. Langston (1847), 1 Ex. 634 ; 17 L. J. 338 ; 74 R. R. 794 Wharton v. Masterman, [1895] A. C. 186 : 61 L. .1. Ch. 369 ; 72 L. T. 431 : 43 W. R. 449 ; 11 R. 1(]9 ■^•''' Wheatley r. Purr (1837), 1 Keen, 551 ; 6 L. J. (n. s.) Ch. 195 ; 1 -lur. 133 ; 44R. R. 112 " Wheeler, Re, Hankinson v. Hayter, [1904] 2 Ch. 66 ; 73 L. .1. Cii. 576 ; 91 L. T. 227 ; 52 W, R. 586 '^•' 1!MI xcvi Table of Cases. PAGE Wheeler c. Smith (1860), 1 Giff. 300 ; 29 L. J. Ch. 194 ; 6 Jar. (n. s.) 62 ; 1 L. T. (N. s.) 430; 8 W. K. 173 159,161 V. Tootell (1903), 51 W. R. 693 364 V. Warner (1823). 1 Sim. & St. 304 ; 24 E. R. 176 . . . . 15 an.l de Rochovv, Ite, [1896] 1 Ch. 315 ; 65 L. J. Ch. 219 ; 73 L. T. 661 ; 44 W. R. 270 379, 380 Whichcote v. Lawrence (1798), 3 Ves. Jun. 740 315 Whistler, Me (1887), 35 Ch. D. 561 339 Whiston's Settlement, Be, Lovatt v. Williamson. [1894J 1 Ch. 661 ; 63 L. J. Ch. 273 ; 70 L. T. 681 ; 42 W. R. 327 ; 8 R. 175 . . . .119 Whitbread v. Smith (1854), 3 De G. M. k G. 727 ; 2 Eq. R. 377 ; 23 L. J. Ch. 611 ; 18 Jur. 475 ; 2 W. R. 177 ; 23 L. T. (O. S.) 2 ; 98 R. R. 285 , 246, 247 White, He, Pennell r. Franklin, [1898] 2 Ch. 217 ; 67 L. J. Ch. 502 ; 78 L. T. 770 ; 46 W. R. 676 ; 14 T. L. R. 503 . . 37, 313 , Re, White v. Edmond, [1901] 1 Ch. 570 ; 70 L. J. Ch. 300 ; 84 L.T. 199 ; 4!t W. R. 429 360 V. Baugh (1835), 3 CI. e*c F. 44 ; 2 Bliofh (N. s.) 181 . . . 295 r. Briggs (1848). 2 Ph. 583 ; 15 Sim. 300 ; 15 L. J. Ch. 182 ; 9 Jur. 1083 : 78 R. R. 203 17 V. James (No. 2) (1858), 26 Beav. 191 ; 28 L. J. Ch. 179 ; 4 Jur. (N. s.) 1214 ; 7 W. R. 35 ; 122 R. R. 76 338 V. Parker (1835), 1 Bing. N. C. 573 ; 4 L. J. (N. s.) C. P. 178 ; 1 Scott, 542 ; 1 Hodges, 112 ; 41 R. R. 636 .... 194 J.. White (1804), 9 Ves. 554 ; 4 R. R. 161 247 and Hindle's Contract, Re (1877), 7 Ch. D. 201 ; 47 L. J. Ch. 85 ; 37 L. T. 574 ; 26 W. R. 124 198 Whiteford, Me, Inglis v. Whiteford, [1903J 1 Ch. 889 ; 72 L. J. Ch. 540 ; 51 W. R. 491 . . 462 Whitehead, Re, Peacock v. Lucas. [1894] 1 Ch. 678 ; 63 L. J. Ch. 229 ; 70 L. T. 122 ; 42 W. R. 491 ; 8 R. 142 230 Whiteley,i2e,Whiteleyy.Learoyd(1886), 33Ch.D.347. 270, 279, 461, 464, 478 Whitfield, i2e, Hill f. Mathie, [1911] 1 Ch.310; SOL. J. Ch. 263 ; 103 L.T. 878 ; 55 Sol. J. 237 ; 27 T. L. R. 203 157 V. Brand (1847), 16 Mee. & W. 282 ; 16 L. J. Ex. 103 ; 73 R. R. .502 205 Whiting's Settlement. Me, Whiting v. DeRutzen, [1905] 1 Ch.96 ; 91 L.T. 821 ; 53 W. R. 293 ; 21 T. L. R. 83 73 Whitney v. Smith (1869), L. R. 4 Ch. 513 ; 20 L. T. (n. s.) 468 ; 17 W. R. 579 281,317,490.505 Whitton's Trusts, Re (1869), L. R. 8 Eq. 352 257 Whitwam v. Watkin (1898), 78 L. T. 188 484 Widdow's Trusts, Me (1871), L. R. 11 Eq. 408 ; 40 L. J. Ch. 380 ; 24 L. T. (N. s.) 87 : 19 W. R. 468 360 Wightman v. Townroe (1813), 1 Mau. &: S. 412 ; 14 R. R. 475 . . . 207 Wiglesworth v. Wiglesworth (1852), 16 Beav. 269 ; 96 R. R. 126 . 308, 478 Wilcock, Me, Kay v. Dewhurst, [1898] 1 Ch. 95 ; 67 L.J.Ch. 154 ; 77 L.T. 679 ; 46 W. R. 153 170 , Mc, Wilcock r. Johnson (1870), 62 L. T. 317 154 Wilcock's Settlement, Mc (1875), 1 Ch. U. 229 68 Wild V. Banning (1866), L. R. 2 Eq. 577 ; 35 L. J. Ch. 594 ; ML. T. (x.s.) 845 ; 12 Jur. (N. s.) 464 152 Wild's Case (1599), 6 Rep. 17 124 Wilday V. Sandys (1869), L. R. 7 Eq. 455 ; 20 L. T. (N. S.) 8(il ; 17 W. R. 6113 230, 233 Wilder t: Pigott (1882), 22 Ch. D. 263 ; 52 L. J. Ch. 141 ; 48 L. T. 112 : 31 W. R.377 133 Wilding V. Bolder (185.5), 21 Beav. 222 : 1 I I K. K. 69 394 Wiles /•. Gresham (1854), 2 Drew. 258 ; 23 I.. J. Cli. 667 : 2 Kcj. R. 560 ; 2 W. R. 355 262, 470 V. (18-"'4), 5 De G. M. iV G. 770 ; 3 Eq. R. 116; 24 L. J. Ch. 264; 3 W. R. 87 317 Wiikins v. Hogg (1861), 3 Giff. 116 ; 8 Jur. (N. s.) 25 ; 31 L. J. Ch. 41 ; 5 L. T. (N. s.) 467 ; 10 W. R. 47 499 Wilkinson r. Duncan (1857), 23 Beav. 469 ; 26 L. J. Ch. 495 ; 3 Jur. (N. S.) 530 ; 5 W. R, 398 . . , 243 Table of Cases. xcvii PA(JE Wilkinson t: Parry (1828), 4 Riiss. 272 : 2S R. U. SI . . . . 373 .jt,2 Wilkinson's Mortgaged Estates, iZ^! (1*^72), 1.. U. 13 E! 30 r, Bolton (1784), 1 Co.K, 72 ; 4 R. E. 22, n. . . . '1K3 r. Byron (1901), 18 T. L. R. 172 )S2 V. Mercier (1884), 10 App. Cas. 1 ; 54 L. J. Q. B. 148 ; 52 L 'J' (i62 ; 33 W. R. 373 ; 49 .J. P. 484 . . . . Miilll V. Scott, [1900] A. C. 499 ; 69 L. ,J. P. C. 77 ; 82 L. T. 727 ; 49 ' W. R. 33 ; 16 T. L. R. 450 320, 322 /•. Teale (1847), 6 Hare, 239 ; 77 R. R. 100 ' 121 I-. Waters (1845), 14 Mee. & W. 166 ... . , ID.-, V. Williams (1863), 32 Boav. 370 KJO, n\2 V. (1881), 17 Ch. D. 437 ; 44 L. T. 573 . . . 289, 509 — V. , [1900] 1 Ch. 152 ; 69 L. J. Ch. 77 ; 81 L. T. 804 ; 48 W. R. 245 .|S6 Williams' Settlement, Be (1858), 4 Kay & J. 87 ; 6 W. R. 218 ; 116 R. R. 266 . . . 444 , Be, Williams v. Williams, [1911] 1 Ch. 441; So L. J. Ch. 249 ; 104 L. T. 310 : 55 Sol. ,J. 236 . . . .142 Trusts, Be (1887), 36 Ch. D. 231 ; 56 L. T. 884 ; 56 L. J. Ch. 1088 ; 36 W. R. 100 38',). 400 WiUis, Be, Spencer v. WiUis, [1911] 2 Ch. 563 ; 81 L. J. Ch. 8 ; 105 L. T. 295 ; 55 Sol. J. 598 277 , Be, Willis r. Willis, [1902] 1 Ch. 15 ; 71 L. J. Ch. 73 ; 85 L. T. 436 ; 50 W. R. 70 183, 253, 254 V. Barron, [1902] A. C. 271 : 71 L. J. Ch. 609 ; 86 L. T. 805 . 98. 322 f\ Kibble (1839), 1 Beav. 559; 49 R. R. 452 312 r. Kymer (1877), 7 Ch. D. 181 ; 47 L. J. Ch. 90 ; 38 L. T. 207 . 121 ^ /'.Willis (1740), 2 Atk. 71 150 Wilmot ('. Alton, [1897] 1 Q. B. 17 ; 6(i L. J. Q. B. 42 ; 45 W. R. 113 ; 4 Man&on, 17 57 Wilson, Be, Ale.xander v. Calder (1885), 28 Ch. D. 457 ; 54 L. J. Ch. 487 ; .33 W. R. 579 45(; , Be, Moore v. Wilson, [1907] 1 Ch. 394 ; 76 L. J. Ch. 210 ; 96 L. T. 453 237 r. Bell(1869), L. R. 4 Ch. 581 ; 17 W. R. 944 28 V. Bury (Lord) (1880), 5 Q. B. D. 518 ; 50 L. J. Q. B. 90 ; 44 L. T. 454 ; 29 W. R. 269 ; 45 J. P. 420 42 *'. Dent (1830), 3 Sim. 385 8U V. Hoare (1831), 2 B. & Ad. 350 ; 9 L. J. (o. s.) K. B. 253 . . 2o6 V. Moore (1833), 1 Myl. & K. 126 ; 36 R. R. 272 ... . 468 • V. Parker (1846), 10 .Jur. 979 ; 77 R. R. 908 436 r. Turner (1883), 22 Ch. D. 521 ; 52 L. J. Ch. 270 : 48 L. T. 370 ; 31 W. R. 438 350 r. Wilson (1848), 1 H. L. Cas. 538 ; 12 .Jur. 467 ; 1 Wh. \: Tud. Lead. Cas. (8th ed.) 604 ; 73 R. R. 158 . . . 7n V. (1854), 5 H. L. Cas. 40 ; 20 L. J. Ch. 697 ; 1 Wh. i: Tud. Lead. Cas. (8th ed.) 604 70 Winchilsea's (Earl of) Policy Trusts, Ba (1888), 39 Ch. i). 168 ; 58 L. J. Ch. 20 ; 59 L. T. 167 ; 37 W. R. 77 429 Wing n. Wing (1876), 34 L. T. (N. s.) 941 ; 24 W. R. 878 . . . . 237 Winslow, Be, Frere v. Winslow (1890), 45 Ch. D. 249 ; 60 L. J. Ch, 20 ; 63 L. T. 485 ; 39 W. R. 120 226, 516 V. Tighe (1812), 2 Ba. & B. 195 ; 12 R. R. 75 . . . .177 Wintle, Be, Tucker v. Wintle, [1896] 2 Ch 711 : 65 L. J. Ch. 863; 75 L. T. 207 ; 45 W. R. 91 :536 Wise, Be, Jackson v. Parrott, [1896] 1 Ch. 281 ; 65 L. J. Ch.2Sl ; 73 L. T. 743 ; 44 W. R. 310 63 r. Perpetual Trustee Co., Ltd., [1903] A. C. 139 ; 72 L. J. P. C. 31 ; 87 L. T. 569; 51 W. R. 241; 19T. L. R. 125 438 T. (J xcviii Table of Cases. PAGE Wise v. Piper (1880), 13 Ch. D. 848 : 40 L. J. C'li. Oil : 41 L. T. 794 : 28 W. R. 442 124. 12(5, 358 V. Wise (1845). 2 Jo. & Lat. 403 ; ()0 K. K. 3l".i li)l Withers >: Withers (1752), Ambl. 152 78 Withington v. Withineton (1848), 10 Sim. 104 ; 80 K. R. 27 . . . 378 Wollastoii r. Tribe (1809), L. R. 9 E■>,; Wythes, Br, West r. Wythes, [1893] 2 Ch. :5(;;) ; (i'J L. T. 2,S1 ; 12 \V H 125 ; 3 R. 722 363 Y. Yaklen, iZe(18r,l), 1 DeG. M. &G. 53 ,;; Yem r. Edwards (1857), 1 De G. & J. 598 ; 27 ].. J. Cli. 23 : 4 Jur. (x. s.) 647 ; 6 W. R. 20 1 7(; York and North Midland Rail. Co. v. Hudson (1853), 16 Beav. 485 ; 22 L. J. Ch. 529; 1 W. R. 187 ; 96 R. R. 228 178 Youde /•. Cloud (1874), L. R. 18 Eq. 634 ; 44 L. .1. Ch. 93 ; 22 W. R. 764 213 Young r. Peachy (1741), 2 Atk. 254 16(i Younghusband r. Gisborne (1844), 1 Coll. C. C. 400 ; 8 Jur. 750 ; 66 R. R. 120 (;S. 362 >: (18^t0> I-"' J^- ■'• ^'li- '•^■''> ■ 1" ■''"•. 41!) . 68. 362 A PEACTICAL AND CONCISE MANUAL OF THE LAW RELATING TO TRIVATE TRUSTS AND TRUSTEES. DIVISION I. PKELIMINARY DEFINITIONS. ART. PAGE 1. — Definitions of Trust, Trustee, Trust Property, Beneficiary, and Breach of Trust 2. — Definitions of Legal and Equitable Estates. 3. — Definitions of Express and Constructive Trusts 4. — Definitions of Simple and Special Trusts 5. — Definitions of Executed and Executory Trusts Art. 1. — Definitions of Trust, Trustee, Trust Tropeyti/, Beneficiary, and Breach of Trust. A trust is an equitable obligation binding a person (who is called a trustee), to deal with property over which he has control (which is called the trust pro- perty), for the benefit of persons (who are called the beneficiaries or cestuis que trusts), of whom he may himself be one, and any one of whom may enforce the obligation. Any act or neglect on the part of a trustee which is not authorised or excused by the terms of the trust instrument, or by law, is called a breach of trust. More than one definition of a trust is to be found in the Comparison recognised text books; but none of these learned and I](,fi,litu,n excellent works contains a definition which is altogether withotiicrs. satisfactory. The late Mr. Lewin, in his treatise on Trusts, adopts Lord Lonl Coke's Coke's definition of a use as equally applicable to a trust 'i I^EELiMlNARY 1)eFINIT10NS. Art. 1. namely, "a contidence reposed in some other, not issuing out of the hind, but as a thing collateral, annexed in privity to the estate of the land, for which crstui qur trust has no remedy but by subpcpna in Chancery." This, however, is applicable to real estate only, and certainly not to trusts of choses in action, the equities attaching to which are, generally speaking, not merely collateral. The expression " some other " is also apt to mislead, and to convey the erroneous impression that the trustee must be some other than either the person who creates the trust, or the beneficiary under it. Then, so far as the remedy is concerned, the Court of Chancery no longer exists, and all branches of the High Court take cognizance of equitable rights, although the Chancery Division is the proper branch in which to enforce express trusts. Definitions of Another eminent author, the late Mr. Spence, defines a and Mr "^*^ trust as " a beneficial interest in, or beneficial ownership of. Justice story, real or personal property, unattended with the possessory or legal ownership thereof " ; and this definition was adopted by the late Mr. Snell, and the late Judge Josiah Smith, in their resj)ective works on Equity. An almost similar definition is given by Mr. Justice Story, in his compre- hensive work on Equity, where he says: "A trust may be defined to be an equitable right, title, or interest in pro- perty, real or personal, distinct from the legal ownership thereof." These definitions, however, do not seem to be definitions of a trust at all, but rather of the beneficial interest of persons in whose favour a trust is created. Mr. H. A. Mr. H. A. Smith in his " Principles of Equity " also points definition ^^^^^ ^^^'^^ ^^^'' ^pence's definition omits to take account of the most important class of trusts, viz., special trusts, in which the ol)ject of the trust is the performance of some particular duty, rather than the vesting of beneficial ownership in some person other than the legal OM'ner ; and he defines a trust as " a duty, deemed in equity to rest on the conscience of a legal owner." This definition, although decidedly superior to those hitherto discussed, is nevertheless not quite accurate, being both too wide and too narrow. It is too wide; because it would be almost, if not quite, as good a definition of any other equitalJe o])ligation. It is too narrow ; because a i)erson may be a trustee, without being the legal owner of property ; c.rj., he may be trustee of an equity of redemption, or of an equitable interest arising under another trust, or even of an expectancy. Trust, Trust Property, etc. 3 The present writer has therefore felt himself obliged to Art. 1. reject all these definitions, and to endeavour to construct an xatui^of a independent one. And in doing this it became necessary to trust- consider the nature of a trust. Sir Frederick Pollock, in his learned work on Contracts, sir F. Pol- considers that a trust is, in its incei')tion, a form of contract ; ^^^^'^ ''''^^^• but admits that the complex relations involved in a trust cannot be conveniently reduced to the ordinary elements of a contract, and that there is sufficient justification for the course adopted by all English writers of treating trusts as a separate branch of law. There is, however, a radical distinction between contracts and trusts, viz., that an executed trust (as distinguished from a contract to create one) can only be enforced by a person for whose benefit it was made, and can neither be enforced nor released by the person who created it, unless he be also a beneficiary. On the other hand, as is shown later on in Art. 8, a contract can only, as a rule, be enforced or released Ijy the parties to it. A trust once finally created is in fact tlie equitable equivalent of a common law gift, and leaves no right in the creator of it, as such, to enforce it. Thus if A. vests property in B. in trust to pay the income to C. for life and after C.'s death to divide the capital among X., Y., and Z., then C, X., Y., and Z. can together (if unanimous) insist on the trustee dividing the proj^erty between them at once, notwith- standing the protests of A. This quality of a trust is one which foreign lawyers find great difficulty in grasping. It has fallen to the lot of the present writer to give evidence of the English Law of Trusts for use in French courts, which had a great tendency to regard a trust as a mandate or agency created by the settlor and revocable by him, whereas the very oijposite is the case, the trustee being rather the agent of the beneficiaries collectively and having no duty whatever to the settlor. In truth, the latter is a donor, the beneficiaries collectively the donees, and the trustee a sort of stakeholder for them. It has been suggested that trusts are somewhat analogous to Analogy of that class of common law cases which lies on the Ijorder line [j^jlJ^n'jf^ between contract and tort (of which Coggs v. Bernard («) is the leading instance), the principle of which is that the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in its perform- ance. But here again there is the same ditierence, viz., that («) (1703) 2 Lord Raymond, v. Metropolitan District Hail . <.'o. 909; 1 Sm. Lead. Cas. 173 (1880), 5 C. P. D. 157. (ed. 11); and see also Foulkes B 2 Preliminary Definitions. Art. 1. Distinctive character of trusts. Analysis of a trast. Illustrations. the duty can only be enforced in such cases by the party at whose request the service was undertaken. However, whatever a trust may be in its inception, it radically differs from all other duties in this, that prior to recent legislation it was a duty which could not be enforced at common law, and was only enforceable in Chancery on the ground that a breach of the duty was so unconscientious as to call for the equitable interference of the Chancellor. It is therefore convenient to regard a trust as "an obligation," that is to say, "a tie of equity {vinculum juris), whereby one person is bound to perform or forbear some act for another " (?;). The obligation is an equitable one, and until the amalgamation of the courts of common law and equity, was enforceable only in courts of equity ; and although, by recent legislation, all courts take cognizance of trusts, yet they are treated as equitable rights giving rise to defences applicable only to equitable rights, and remediable only by equitable remedies. It is also an obligation relating exclu- sively to property. An obligation to do or forbear some act not relating to property is not a trust, whatever else it may be; for a trust is purely a creature of equity, and equity concerns itself solely with property. It is, further, an obligation, the due performance of which necessarily implies that the trustee has some control over the property which is the subject of the trust, for otherwise he would be unable to deal with it for the benefit of the beneficiaries ; and although, as will be seen hereafter, in the case of simple trusts, the control is merely nominal (con- sisting solely in the trustee being the custodian of the legal title), yet some scintilla of control is absolutely necessary to the existence of a trust. Persons are sometimes called trustees who are not so in the ordinary sense, r.^/., trustees for purposes of the Settled Land Acts and trustees of strict settlements with powers of sale to be carried out by revocation of uses and new appoint- ment. In both cases such persons may hccuinc trustees when they receive purchase-money, or when they exercise the powers confided to them ; but until then, they are not trustees in the sense in which the word is used in this work, but merely donees of powers. A couple of examples will illustrate the above remarks. A testator bequeaths ct 1,000 to A., upon trust to invest it in (b' Encyc. Brit., Art. " Obligation." Trust, Trust Property, etc. government stock, and to pay the dividends to B. for life, and Art. 1. after B.'s death to sell the stock and divide the proceeds among B.'s children. A trust is at once created in A. In other words, he is under an equitable obligation, enforceable by B, or his children, to deal with the tl,000 (the trust property) for the benefit of B. and B.'s children (the beneficiaries) according to the testator's directions. A., by deed, declares that he holds i,"l,000 government stock, standing in his own name and belonging to him, in trust to pay the dividends to himself for life, and, after his death, upon trust to pay the dividends to his wife for life, and, after the death of the survivor of them, upon trust to sell the stock and divide the proceeds among their children. Here A. is both creator of the trust, trustee, and on<' of the beneficiaries. If he were the hoIc beneficiary, the trust would never arise, for a man cannot enforce a trust against himself. Or, if he became such by surviving his wife and children, and becoming the sole personal representative and next of kin of the latter, it would cease, because the trusteeship would merge and be extinguished in the beneficial ownership. Art. 2. — Definitions of Legal and Equitahle Estates. The interest of a beneficiary in trust property is called an equitable estate or interest, because it was originally only recognised in courts of equity. A legal estate or ownership, on the other hand, is that proprie- tary interest which has been acquired with all the formalities which are required by the common or statute law for conferring perfect ownership, or which has devolved by legal descent or devolution. A trustee usually, but not necessarily or always, has the legal ownership of trust property. When the Judicature Act of 1873 (36 & 37 Vict. c. 60) was Distinction first passed, it was thought by many that the former dis- f„)portant. tinctions between legal and equitable estates were abolished, and that thenceforth every equitable interest would be, in effect, a legal one. Such persons, however, overlooked the fact that, even if the fusion of law and equity justified the application of the adjective " legal " to rights and interests formerly ignored by the common law and invented by judicial equity, Preliminary Definitions. Art. 2. Estate of trustee not necessarily lesral. Importance of tlifferenco between legal and equitable estates. such a change of nomenclature would not do away with the fundamental and ineradicable distinctions w'hich exist between legal and equitable estates. As Lord Selborne said, in introducing the Judicature Bill into the House of Lords, " if trusts are to continue, there must be a distinction between what we call a legal and an equitable estate. The legal estate is in the person who holds the propert}' for another ; the equitable estate is in the person beneficially interested. The distinction between law and equity is, within certain limits, real and natural, and it would be a mistake to suppose that what is real and natural ought to be disregarded, although under our present system it is often pushed beyond these limits " (c). The old legal estate, therefore, still subsists ; and although equitable estates are now recognised by all branches of the Supreme Court (and may therefore in a sense be called legal), it has been found more convenient to retain the old nomencla- ture, signifjang, as it does, a real and substantial difference, which would still exist, even although the terms legal and equitable estates were abolished. It must not, however, be assumed that the estate of a trustee is always legal. The estate of the beneficiary is always equit- able, so long as the trust subsists ; but so also may be the estate of the trustee. For instance, the trust ]3roperty may consist of land mortgaged to a third party. In that case the legal estate would be in the mortgagee, an equity of redemp- tion (which is a purely equitable estate) in the trustee, and another equitable estate in the beneficiary. The difference between legal and equitable estates is not merely of theoretical interest. In cases of ])reach of trust (as will appear later on in this treatise (d)), it is of vital import- ance, owing to the maxim that " Where the equities are equal the law prevails." In other words, where a question of priority arises between two claimants, each of whom has an equally just claim, then, if one of them has the legal estate, he will be preferred to the other, even though the title of such other arose first in point of date (r). (c) Hansard (n. s.), Vol. 214, p. 333. {(l) Infra, Art. 95. (e) The reader who is desirous of verifying this statement is referred to the following cases which have arisen since the Judicature Acts came into opera- tion, viz. : Cave v. Cave (1880), 15 Ch. D. 639 ; Northern Counties, etc.. Insurance Co. v. Whijip (1884), 26 Ch. D. 482 ; Garnham v. SkipjJer (IS85), 34 W. R. 135 ; Taylor v. Blakeloclc (1886), 32 Ch. D. 560 ; Be Vernon, Ewens ) Art. 13. {«) Art. 17. \l) Art. 10. ip) Art. 14, {I) See Art. 5, napra. (m)Art. II. {q) Art. 16. (w) Arts. 18—2.^). CHAPTER II. MATTERS ESSENTIAL TO THE PRIMA FACIE VALIDITY OF AN EXPRESS TRUST. ART. PAGE 7. — Language evincing an Intention to Create a Trust . 15 8. — How FAR Valuable Consideration is Necessary to BIND THE Settlor or his Eepresentatives 9. — What Property is capable of being made the .Subject OF A Trust 10. — Tub Legality of the Expressed Object of the Trust 11. — Necessity or otherwise of Writing and Signature 3K Art. 7. — Language evincing an Intention to Create a 'inist. (1) No technical expressions are needed for the creation of an express trust [a). It is sufficient if the settlor indicates an intention to create a trust, and points out with reasonable certainty — (a) the trust property ih) ; (b) the beneficiaries ; and (c) the purpose of the trust. (2) Whether an intention to create a trust is suffi- ciently indicated is in each case a question of interpre- tation, and may even be inferred from the context. In particular : (a) A power of appointment among such of a class as the donee of the power may select (c), unaccompanied by a gift over in default of appointment {d), may raise an inference that a («) nipple V. Corles (1853), 11 extended to a power of appoiut- Hare, 183 ; Cox w Page (1852), ment in favour of a single 10 Hare, 163 ; Iloore v. Barton individual, sed qiuvre, Tweedale (1851), 4 De G. & Sm. 517. v. Tweedale (1878), 7 Ch. D. 633 (b) KnigJit v. Knight (1840), (see infra, p. 22); Wheeler v. 3 Beav. 148, affirmed, H. L. TFrimer (1823), 1 Sim. & St. 304. (sub nom. Knight v. Boughton) (d) Biirroughv. Philco.c(lSiO), (1844), 11 CI. & F. at p. 548, and 5 Myl. & Cr. 72 ; Grieveson v. ex^lainedhjC. A. in Be Oldfield, Kirsopp (1838), 2 Keen, 653; Oldfield V. Oldfield, [1904] 1 Ch. Brown v. Higgs (1799), 4 Ves. 549. 708. ((') This principle has been 16 Express or Declared Trusts. Art. 7. trust was intended in favour of the class in default of appointment if there appears to be a general intention to benefit the objects of the 150 wer (('). (b) A gift by will to a person, followed by precatory words expressive of the donor's request, recommendation, desire, hope or confidence, that the property will be applied in favour of others, may create a trust, if, on the whole will, it appears that the testator intended the words to be imperative (/). The current of modern authority is, however, against constru- ing precatory words as imposing trusts {g). (c) A devise or bequest " upon condition" or "to the intent " that a benefit may be conferred on another, may create a trust for that other if, on the whole will, the court comes to the conclusion that a trust, and not a charge merely, or a condition entailing forfeiture, was intended (//). (d) A contract to create a trust of which specific performance would be ordered, is considered to be an executory trust conferring on parties who could sue for specific performance the same rights and imposing the same liabilities as if the contract had been actually performed ; and a direction in a will that a trust deed shall be executed has the same effect (/). (3) On the other hand, persons to whom payments are directed to be made by trustees, are not necessarily beneficiaries, and cannot enforce such directions if their object, as gathered from the whole instrument, was not to confer benefits on the payees, but to facili- (c) Re Weelces' Settlement, [1895] 1 Ch. 373 ; [1895] 2 Ch. [1897] 1 Ch. 289. 370, and cases there cited ; and (/) Sec, MuHHOorie Bank v. Mv ssoorie Bank v. Eaynor {IS82), Baifiior (1882), 7 App. fas. 321. 7 Apj). ('a->^. 321. (fj) Be DiijqleK, (hegorij v. (//) Sec illu.strations, infra, Bdmondiion (1888), 39 ("h. I). under paiaju;iaph (2) (c). 253 ; lie Adams and Kensimjlon (i) See illusiration.s, infra, Vestry (1884), 27 Ch. 1). 394; under paragraph (2) (d). Re Hamilton, Trench v. Hamilton, Language Creating Trust. 17 tate the administration of the trust or to reHeve the settlor himself of tronhle or inconvenience. Art. 7. Paragraph (1). The latitude of expression allowed to the creator of a trust Reasons for is an mstance of the maxim that "Equity regards the inten- ^ii^ above tion rather than the form." Wherever the intent is apparent, it will (other matters bein^ in order) be carried into effect, however rudely or elliptically it may have been expressed. Of course, the words " in trust for," or " upon trust to," are the most proper for expressing a fiduciary purpose ; but wherever a person vests property in another and shows an intention that it is to be applied for the benefit of third parties who are sufficiently pointed out, an express trust will Express be created, whatever form of words may have been used. For '^^^ '°°' instance, A. devises or grants freehold lands unto and to the use of B., and " directs " him to sell it and pay the proceeds to C, or directs him to apply the property for the benefit of C. In all these cases a trust is created in favour of C. {Ic), although the word " trust " is not used. Moreover, w^here a trust is clearly intended, then (subject to No trustee the rules as to voluntary trusts set forth in Art. 8, infra), the "amed. mere omission to' appoint a trustee will not invalidate the trust ; for equity never allows a trust to fail for want of a trustee. Thus, before the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), where money was bequeathed to a married woman for her scjmrate uar, the executors were regarded in equity as trustees for the wife ; because the intention to create a trust (by which alone the separate use could have any effect) was clear {I). Again, if before the Land Transfer Act, 1897 (60 & 61 Vict. Direction in c. 65), a testator directed a sale of lands and a division of the Jj^j'siJaif proceeds, but named no person to sell, and did not in terms be sold, devise the property, it descended at law to his heir ; but the latter was regarded in equity as a mere passive trustee, who was bound to convey the legal estate to trustees appointed by the court for the purpose of carrying out the trust (/»)• hi cases since the Land Transfer Act, 1897, however, it is {k) White V. Briggs (1848), 2 Pli. 583. {I) Bollfe V. Budder (1725), Bunb. 187 ; Tcqopenden v. Walsh (1811), 1 Phillimore, 352; Pri- chard v. Ames (1823), Turn. & Russ. 222 ; Green v.^Carlill T. (1877), 4 Ch. D. 882; and see Bennet v. Davis (1725), 2 P. Wms. 316. (m) Bobson v. Flight (1865), 4 De G. J. & S. 608 ; Pitt v. Pelham (1670), Freem. Ch. Cas. 134. 18 Express or Declared Trusts. Art. 7. Failure of trustee. Trusts intended may yet be void for uncertainty. Illustrations of uncer- tainty as to the property. apprehended that the personal representatives of tlie testator would he the persons to sell the property if of freehold tenure. So if the trustee appointed fails, either hy death (»), or disclaimer (o), or incapacity (p), or otherwise (q), the trust does not fail, but fastens upon the conscience of any person (other than a purchaser for value without notice) into whose hands the property comes (r) ; and such person holds it as a passive trustee, whose only duty is to convey it to new trustees when properly appointed (s). However, intention to create a trust is not of itself sufficient (even M-here the most direct and imperative words of confidence are used (t)), if either the property, or the persons to be benefited, or the way in which they are to be benefited be not indicated with reasonable certainty (0. Thus where a testator gives property to, or in trust for, his wife, and directs that such imrt of it as may not be required hi/ her shall, after her death, be held in trust for his children, the latter trust is void for uncertainty, for no one can say how much the wife may or may not require (»). On similar grounds, directions to a legatee " to remember " certain persons {x), or " to give what should remain at her death" {y), or "to reward very old servants and tenants according to their deserts" {z), or (after an absolute gift to a wife) a direction tbat at her death " such parts of my estate as she shall not have sold or disposed of " should be held in trust for certain other persons (a), have all been held void for uncertainty in the property. {n) Moggridge v. Thaclcivell (1729), 3 Bro. C. C. 517 ; Att.-Gen. V. Lady Downing (1766), Ambl. 550 ; Tempest v. Lord Camoys (1866), 35 Beav. 201. (o) Eobson V. Flight (1865), 4 De G. J. & S. 608. {})) Sonley v. Clockmakers Co. (1780), 1 Bro. C. C. 81. iq) Att.-Gen. v. Stephens {IS^'i), 3 Myl. & K. 347. (r) See per Wilmot, C.J., Att.-Gen. v. Lady Doicning (1167), Wilmot's Opinions and Judg- ments, at pp. 21, 22. («) Eobson V. Flight (1865), 4 De G. J. & S. 608. (t) See Mussoorie Bank v. Eaynor (1882), 7 App. Cas. at p. 331. (m) Per Sir A. IIobhou.se, in Mvssoorie Hank v. Eaynor ( 1882), 7 App. ^'as. at p. 331 ; and .see Pope X.Pope (1839), 10 Sim. 1; and Fade v. Fade (1820), 5 Madd. 118. (x) Bardswell v. Bardswell (1838), 9 Sim. 319. iy) Parnall v. Parnall (1878), 9 Ch. D. 96 ; Sprange v. Barnard (1789), 2 Bro. C. C. 585; Tibhits V. Tihbits (1816), 19 Ves. 657; Pope V. Pope (1839), 10 Sim. 1. (z) Knight v. Knight (1840), 3 Beav. 148 ; and see Stead v. Mellor (1877), 5 Cb. D. 225. (a) Ee Jones, Eichards v. Jones, [1898] 1 Ch. 438, distinguished in Ee Sanford, Sayiford v. San- ford, [1901] 1 Ch. 939. For other examples of trusts void for uncertainty in the property, see Sale V. Moore {1S21), 1 Sim. 534 ; Hoy V. blaster (1834), 6 Sim. 568; Curtis v. Eippon (1820), 5 Madd, 434 ; Coivman v, Ilarri- Language Creating Trust. 10 The same principle is equcally applicable where the Art. 7. uncertainty arises (/>) in relation either to the persons intended , ~ to be benefited, or to the way in which (<■), or the period for which, as to the the property is to be dealt with for their benefit. In all such ^eueficiaries, cases the trust is void {a). way in wiiich Thus where a testatrix bequeathed .i'500 to trustees to be !*^? property ■"• . . IS to be applied in keeping up a tomb until the expiration of the period applied, of twenty-one years from the death of the last survivor of all persons living at her death, it was held that, quite apart from any question whether the rule against perpetuities was infringed, the trust was void for uncertainty, as it would be im- possible to ascertain when the last life would be extinguished (e). Cases in which this question of uncertainty has arisen have, in recent years, come before the courts in relation to attempts on fhe part of testators to create discretionary trusts in favour of vague objects of benevolence not falling within the legal definition of charities. As Lord Halsbury remarked in Grimond v. Gri)ii(>ii(l(f): "The testator here has not given a class from which he allowed his trustees to select individually, but he has left his directions so vague, that it is in effect giving some one else power to make a will for him instead of making a will for himself, which I conceive to be the objection always entertained where the directions are so extremely vague that you cannot say what it is that the testator meant. In this case the testator has not made any will himself, he has allowed some one else to make a will for him after his death, and that the law will not allow." In that case the testator had directed his trustees to divide a portion of his residuary estate among " such charitable or religious institutions and societies as they might select." This was held to be void for uncertainty. If the power had been in favour of charitable objects onlij, the trust would have been good, because the Attorney-General could have enforced the charitable trust and the Court could have directed a scheme ; but being partly for charitable objects and partly for objects not charitable, the beneficiaries son (1852), 10 Hare, 234; and [1901] 1 Ch. 936. Green v. Marsden (1853), 1 (/) [1905] A. C. 124. See also Drew. 646. Blair v. Duncan, [1902] A. C. 37 (6) See Doe d. Hayter v. ("charitable or public"); Ellis Joinville (1802), 3 East, 172; v. Selby (1836), 1 Myl. & Cr. Thomas v. Thomas (1796), 6 286 ("charitable or other"); T. K. 671. Be Jarman's Estate, Leavers v. {c)SeeBriggsy.Hartle7j {1850), Clayton (1878), 8 Ch. D. 584; 19 L. J. Ch. 416. ' and Be Macduff, Macduff v. id) See Thomason v. Moses Macduff, [1896] 2 Ch. 451 (1842), 5Beav. 77. ("charitable or benevolent"). (e) Be Moore, Prior v. Moore, c2 20 Express or Declared Trusts. Art. 7. Uncertainty by reason of accident. Difference between uncertainty as to the property and uncertainty as to bene- ficiaries or the details of the trust. were not pointed out with sufficient certainty. Thus trusts for purposes vaguely descrihed as " benevolent " (.'/), "philanthropic" (//), " hospitable " (/), or "generally use- ful " (k) are void for uncertainty because these purposes might be satisfied without applying any part of the fund for charity. So that the Attorney-General could not interfere on behalf of charit}^ and no other person could interfere because no one could predicate of himself that he was a beneficiary (/). On the other hand, trusts for purposes " charitable ami pious "(w), "charitable and deserving " (»), "religious and charitable " (o) have been upheld, for in such cases the purposes are not alternatively charitable or not charitable as the trustee may decide, but are confined to charities of a particular class. A curious example of uncertainty in regard to the propert}' is afforded by the case of Boi/cc v. Boijcc (j)). There a testator devised all his houses in Southwold to trustees, in trust for his wife for life, and after her death in trust to conve}^ one of them, whichever she might choose, to his daughter Maria in fee, and to convey the others to his daughter Charlotte in fee. Maria died in the testator's lifetime and therefore could not choose any particular house, and it was held that in conse- quence the trust in favour of Charlotte was void for uncertainty. There is, however, an important difference to be noted ])etween trusts void for uncertainty as to the pro'perty, and those void for uncertainty as to the beneficiaries, or as to the way in which the property is intended to be applied for their l^euefit. Where it is held that there is uncertainty as to the property intended to be settled, it is o])vious that no further question can arise ; for if there is no property capable of identification there is nothing to litigate about. But where the property is described with sufficient certaint}', and the words actually used, or the surrounding circumstances, make ig) Morice v. Bishop of Dur- ham (1804), 9 Ves. 30',); James V. Allen (1817), 3 Mer. 17 ; Be Freem,an, Shilton v. Freeman, [1908] 1 Ch. 720. (/() Re Macduff, Macduff v. Macduff, [1896] 2 Ch. 4.51. (i) Be Hewitt's Estate, Gates- head Corporation v. Hudspeth (1883), .'53 L. .1. Ch. 132. (A) Kendall v. Granger (1842), 5 Beav. 300 ; Be M'oodgate (1880), 2T. L. R. 674. (/) 8ce Hunter v. Ait. -Gen., [1899] A. C. 309. (m) Ait. -Gen. v. nerriclc ( 1772), Ambl. 712. (ft) Be Sutton, Stone v. Att.- Gen. (1885), 28 Ch. D. 464. (o) Baker v. Sutton (1836), 1 Keen, 224 ; Be Scowcroft, Ormrod v. Wilkinson, [1898] 2 Ch. 638. {p) (1849) 16 Sim. 476. Language Creating Trust. 21 it clear that, although the donor has not sufficiently specified Art. 7. the objects of his bounty or the way in which the property was intended to be dealt with, yet he never meant the trustee to take the entire l)eneficial interest, it is different ; and in such cases (which are treated of in Division III.) the law implies a resulting trust in favour of the donor or his representatives. Paragraph (2) (a). With regard to trusts created by words empowering Powers in another to appoint to a class, with no gift over in default of <) Be SpnKiiir. .Milrij v. Cape affirmed (1848), 17 L. J. Ch. (1880), 43 L. t. 230. 22 Express or Declared Trusts. Art. 7. intention to benefit the class unless the donee of the power exercises it. But a residuary gift is not " a gift over " for this purpose (0- No implied Moreover, even where there is no gift over, tliere must be a trust unless rreneral intention apparent to benefit the class. Tluis, in He ffeneml inten- tion to benefit Wcckes' Scttlrmciit (n), there was a gift to the testatrix's apparent. husband for life, with power by deed or will to dispose of the property amongst their children. Romer, J., after elaborately examining all the decisions, pointed out that there was no flift to siirlt of the dans as the husband might appoint, but merely a bare power to appoint among a class, and that the mere giving of a power did not of itself show that general intention to benefit the class which was aj^parent in cases where the selection only was confided to the donee of the power. This decision appears to the present writer to be inconsistent with that in Tirecdale v. Tivecdalc (x), which would probably not now be followed. Precatory trusts depend wholly on interpreta- Earlier cases show a tendency to construe precatory words as imperative. Parageaph (2) (I)). The subject of precatory trusts, i.e., transfers or bequests of property to another, coupled with words of prayer, entreaty, recommendation, expectation, or the like (which according to ordinary usage would not bear an imperative connotation), is not free from difficulty, owing to the conflict between the earlier and the more modern decisions. If, however, it be borne in mhid that this question is not one of luir, but merely one of the true interpretation of the document which contains the precatory w'ords, much confusion will be avoided. Regarded in that light, and applying the dictum of Lord Lindley, that " when I see an intention clearly expressed in a will, and find no rule of law opposed to giving effect to it, I disregard previous cases," the conflict of authorities to a large extent becomes immaterial. Undoubtedly the earlier cases sliow^ that Chancery judges were formerly in the habit of interpreting precatory words as being 7>y///)r?/flc«e euphemistic equivalents for more imperative forms, much as a master might give an order to a servant in the form of a request rather than that of a command. And historically there is justification for this view, as will be seen from the following account of the origin of precatory trusts. According to an anci(;nt rule of Koman law, the ap[)oint- (t) Be Briedey, Brierley v. Brierleij (1894), 4.3 W. R. 36. (M) [1897] 1 Ch. 289 ; aud see also Carberryv. 31'Cartlnj (1881), 7 L. R. Ir. 328. (x) (1878) 7 Ch. D. 633. Language Cheating Trust. 23 ment of a female (even an only child) as heir was forbidden. Art. 7. In order to evade this, it became the practice of Roman — ■ fathers to appoint a male heir, in whose honour they could confide, to restore the property to the testator's daughter. Before the time of Augustus, the performance of these trusts (fidri co)iimissa) was left entirely to the honesty of the person trusted ; and it is, therefore, not surprising that testators used words of entreaty or prayer, rather than of command, well knowing that the fulfilment of their wishes was dependent on the good will of the person addressed. Thus we find that Roman testators usually adopted such forms of expression as jjcto, rogo, volo, field tiue committo, and the like. When, in the time of Augustus, fidci commissa became enforceable, the question arose whether wills made in the old precatory form were to be considered imperative ; and Justinian settled the point by ordaining that, where the intention of the testator was clear, it should be equally effectual, whether it was expressed in direct or in precatory language. Now much the same thing happened with us. Whatever may have been the origin of uses (the predecessors of trusts) in England, there is no doubt that, at an early stage, they were (on the Roman precedent) resorted to as a means of regaining the power of devising real estate, which had been abolished by the Norman kings. The property was given during the owner's lifetime to a friend, who undertook to hold it to the use of the owner during his life, and after his death to such uses as he might appoint by will. Not only did the courts of common law refuse to enforce these uses, but they were notoriously used for some time before even the Court of Chancery interfered ; for in the reign of Henry IV. the Commons complained that many feoffees to uses (trustees) alienated and charged the property confided to them, for which they stated that there was no remedy. Consequently (as in the case of the Roman fidci comniissa), a non-enforceable trust would naturally be created by the use of precatory words ; and, when the Chancellors took upon themselves to enforce trusts, they would, both on grounds of reason and on the analogy of the Roman precedents, naturally regard precatory trusts as equivalent to those created by more precisely imperative forms of expression. The custom of regarding precatory expressions as imperative having been thus once established, continued to be observed by successive generations of judges as a rule of interpretation, long after the reasons on which it was founded had disappeared. 24 Express or Declared Trusts. Art. 7. Old rule and modern rule as to pre- cator}' words contrasted. Authorities for new rule. However, the current has now set strongly in the opposite direction. As laid down in the older cases, the rule of interpretation might be stated thus : If a gift in terms absolute is accom- panied by a desire, wish, recommendation, hope, or expression of confidence that the donee will use it in a certain way, a trust to that effect will attach to it {y). But of late the dis- tinction between positive rules of law and so-called rules of interpretation has become universally recognised by the courts (z), and the modern way of judging whether precatory expressions were intended to impose enforceable trusts might be stated in almost precisely opposite terms to the above, viz. : If a gift in terms absolute is accompanied by a desire, wish, recommendation, hope, or expression of confidence that the donee will use it in a certain way, no trust to that effect will attach to it, unless on the will, as a whole, the court comes to the conclusion that a trust was intended (a). In other words, it is a question of construction of the particular instrument, and not a question of any supposed rule of courts of equity. As LiNDLEY, L.J., observed in Re Ilainilton, Trench v. Ilainilton {h), "We are bound to see that beneficiaries are not made trustees unless intended to be made so by their testator. . . . You must take the will which you have to construe, and see what it means ; and if you come to the conclusion that no trust was intended, you say so, although previous judges have said the contrary on wills more or less similar to the one which you have to construe." The same view was expressed later by Komkr, J., in Re Williams, ]\'illiain.s V. Williams (c) : "The rule you have to observe is (y) See cases cited infra, pp. 25 — 26, and Malim v. Keighley (1795), 2 Yes. Jun. ,333, 529; Knight v. Knight (1840), 3 Beav. 148, affirmed (suh nom. Knightv. Boughton) (1844), 11 CI. & F. 513. (s) See per Lord Halsbury, Inderwick v. Tatchell, [1903] A. C. at p. 122 ; and Scale v. Rawlins, [1892] A. C. at p. 343 ; per LiNDLEY, L.J., Be Stone, Baker v. Stone, [1895] 2 Cli. 196, 200 ; per Bowen, L.J., Craivford V. Forshaw, [1891] 2 Ch. at p. 267 ; and per Jessel, M.R., Ee Sibley's Trusts (1877), 5 Ch. D. 498. (a) See Cowiskey v. Bou'ring- Ilavhun/, (1905J A. C. 84; Hill V. /////,■ [1897] 1 Q. B. 483, at p. 487 ; Be Uamilton, Trench V. nnmilton, [1895] 2 Ch. 370 ; Be Williams, Williams v. Wil- liams, [1897] 2 Ch. 12 ; Lambe V. Fames (1871), L. R. 6 Ch. 597 ; Be Adams and the Kensing- ton Vestry (1884), 27 Ch. D. 394 ; Be Diggles, Gregory v. Fdmond- son (1888), 39 Ch. D. 253; Mussoorie Bank \.Baynor{\%%2), 7 App. Cas. 321. {b) [1895] 2 Ch. 370 at p. 373 ; approved in Be Oldfield, Oldfield V. Oldfield, [1904] 1 Ch. 549. (c) [1897] 2 Ch. 12, at p. 14; and see also Be Conolly, Conolly V. Conolly, [1910] 1 Ch. 219 ; and Be Burley, Alexander v. Burley, [1910] 1 Ch. 215. Language Creating Trust. 25 simply this: In considering whether a precatory trust attaches Art. 7. to any legacy the court will be simply guided by the intention of the testator apparent in the will, and not by any particular words in which the wishes of the testator are expressed." And in Comiskcy v. Ihvrriiin-TIanhtirij (d) Lord Davey said, " The words ' in full confidence ' are in my opinion neutral. I think it would be impossible to regard them as technical words in any sense. They are words which may or ma}' not create a trust, and whether they do so or not must be deter- mined by the context." As, however, the question has never been finally decided Cat;csillus- by the House of Lords (although it has been by the Privy *j^*'^^ °^ '■^'c Council in Mussoorie Bank v. Haynor {e)), it may be useful to contrast a selection from the older and the more modern cases. hi Palmer v. Sinnnonds (,/') the gift was one of residue to a legatee, his heirs, executors, administrators and assigns for ever, for his own use and benefit, the testator " Itariu;/ full coiijidence " that, if he should die without issue, he would, after providing for his widow for her life, leave the bulk of such residue to persons named. Yice-Chancellor Kindersley expressed an opinion that but for tbe uncertainty of the subject-matter (the hulk of the property) he should have con- sidered himself bound to hold that the legatee took a life estate only, with remainder to his children. This view was followed by the late Vice-Chancellor Hall in Cuniick v. Tucker {(j). There the testator appointed his wife sole executrix, and left to her all his proi)erty for her sole use and benefit, in the full confidence that she would dispose of it amongst all their children during her lifetime and at her decease. The Vice-Chancellor held that the wife took a life interest only, with a power of appointment among the children. The case of Gidlij v. Creyoe (Ji) was even stronger in favour of an absolute gift to the wife, for the gift there was for her own sole use and benefit /or erer, the testator " feeling assured and having every confidence " that she would dispose of the same equitably amongst her two daughters and their children. Yet the court decided that she took merely a life estate with a power of appointment. (d) [1905] A. C. 84, 89. L. R. 18 Eq. 414, and Hart v. (e) (1882) 7 App. Cas. 321. Tribe (1854), 18 Beav. 215. (/) (1854) 2 Drew. 221. (h) (1857) 24 Beav. 185. See Ig) (1874) L. R. 17 Eq. 320. aho Shovelton v. Shovelton(l8(i:i), See also to like effect Le Mar- 32 Beav. 143, and ]Varc v. chant V. Le Marchani (1874), JIallnrd {1851), IG Jm: i92. 26 Express or Declared Trusts. Art. 7. Even under old rule precatory- words were only jjri III d facie imperative. Cases illus- trative of tlic modern view. Even SO late as 1887, Kay, J., held that where real estate was devised to a lady, accompanied by an expression of the testator's " wish and request " that she should not sell it, she was, during coverture, restrained from anticii)ation as fully as if a trust to that effect had been declared in imperative terms (i). However, even throughout the older decisions there is a clear consensus of opinion that precatory expressions are only 2)}'i>nd facie imperative, and that the inference is capable of being rebutted by the context. Thus, in McCormick v. Grogan (/<•), C. made a will leaving the whole of his property to G., whom he also appointed his executor. When about to die, C. sent for G., and, in a private interview, told him of the will, and, on G.'s asking whether that was right, said he would not have it otherwise. C. then told G. where the will was to be found, and that with it would be found a letter. This was all that was known to have passed between the f)arties. The letter named a great many persons to whom C. wished sums of money to be given and annuities to be paid, but it contained several expressions as to G. carrying into effect the intentions of the testator as he " might think best," and also this sentence : " I do not wish you to act strictly on the foregoing instructions, but leave it entirel}- to your own good judgment to do as you think I would if living, and as the parties are deserving ; and as it is not my wish that you should say anything about this document, there cannot be any fault found with you by any of the parties, should you not act in strict accordance with it." G. paid the money to some of the persons mentioned in the letter, but not to others, who accordingly sued him ; but it was held that the directions were not imperative, and that there was no trust created binding on G. Apart, however, from the direction not being sufficiently imperative, it would seem that it was void as a trust, under the principle as to testamentary trusts enunciated in Art. 11, infra. This case must be carefully distinguished from those where a settlor communicates to persons a dis- position wliich he has formerly made in their favour, but at the same time tells them that he has a purpose to answer, which he has not exjjressed in the formal instrument, and wliich he depends upon them to carry into effect, and to which they assent. Such cases are treated of, pi)st, under Art. 11. L(;t us now contrast the forefroin'r cases with those in which 2r (i) lie UulcUnfjs, [1887] W. N. {k) (1869) L. 11. 4 II. L. 82. Language Creating Trust. 27 the more modern view against construing precatory words as Art. 7. imperative has been adopted. The one which perhaps marks the turn of the tide is Lamhe v. Eames{l). There a testator had given his estate to his widow "to be at her disposal in any way she may think l)cst /or the benefit of herself and faniUij." It was held that the latter words imposed no trust on the widow in favour of the family, and Lord Justice James commented severely on former decisions which had imposed trusts where none were intended. This was followed in He Hutchinson and Tenant (ni), where the testator gave all his property to his widow " absolutely, with full power to dispose of the same as she may think fit for the benefit of my family, having full confidence that she will do so." A similar decision was given in lie Adams and the Kensington Vestry {n). There a testator gave all his estate unto and to the absolute use of his wife, her heirs, executors, administrators and assigns, in full confidence that she would do what was right as to the disposal thereof between his children, either in her lifetime or by will after her decease. It was held that under these words, the widow took an absolute interest in the property, unfettered by any trust in favour of the children. This case (which was decided by the Court of Appeal) virtually overrules the decisions of Hall, V.-C, in Curnick v. Tiicher (o), and Malins, V.-C, in Le JSIarcliant \. Le Ma r chant {p). In all three cases the precatory words were practically identical, and the only distinction between them is that in Re Admns a)id the Kensinrjton Vestry the gift to the widow was expressed to be for her " absolute use," whereas in the two other cases it was for her " sole use and benefit." This difference no doubt opens the way for the argument that due force might be given to the words " sole use and benefit," by construing them as equivalent to " separate use " ; whereas no such restrictive meaning can be attached to the expression " absolute use " and that consequentl}^ Re Adams and the Kensington Vestry does not necessarily overrule Curnick v. 'Tucker and Le Marchant v. Le Marchant. It would seem, however, that this distinction is too refined, having regard to the express declara- tion of the Lords Justices, that the doctrine of precatory trusts was not to be extended. In Fic Diggles, Gregory v. Edniondson (q), a testatrix gave (1) (1871) L. K. 6 Ch. 597. (o) (1874) L. R. 17 Eq. 320. (m) (1878) 8 Ch. D. 540. (p) (1874) L. R. 18 Eq. 414. (n) (1884) 27 Ch. D. 394. (q) (1888) 39 Ch. D. 253. 28 Express or Declared Trusts. Art. 7. all her property to her daughter, her heirs and assigns, followed hy these words : " And it is my desire that she allows to A. G. an annuity of i,'25 during her life." The daughter and her hushand were appointed executors. On these facts, it was held hy the Court of Api)eal that no trust to pay the annuity was imposed upon the daughter. At first sight this case would appear to overrule the whole doctrine of precatory trusts; hut, on reading the judgments of the learned Lords Justices, it will he seen that they carefully gave reasons for their decision, which are not inconsistent with precatory words 1.)eing still construed as imperative. Fry, L.J., said : " Accord- ing to the ordinary meaning of the English language this only expresses a desire and does not import a trust or charge. ^Moreover, the expression ' that she alloirs ' implies a certain amount of discretion in the daughter. Now, consider the inconvenience of what we are asked to decide, that there is a precatory trust affecting the whole property ; that the whole property is held in trust to pay i'2.j a year to Anne Gregory for her life. No fund is directed to he set apart, so if there be a trust it is a trust affecting the whole property. If so, the residuary legatee could not sell a bedstead or give away a ring without committing a breach of trust. . . . The later cases have established the reasonable rule that the court is to con- sider in each particular case what was the testator's intention. Construing this will according to the ordinary use of the English language, I think that the testatrix did not mean to tie up her whole property during the life of Anne Gregory, but to give it absolutely to her daughter, trusting to her affection and honour to make such allowance to Anne Gregory as she mentioned in her will " (/•). In Mussooric Banky. liaynor (s) a testator gave to his widow the whole of his real and personal estate, " feeling confident that she will act justly to our children in dividing the same when no longer required by her." It was held by the Judicial Committee of the Privy Council that the widow took an absolute interest. Sir A. Hobhouse said : " Their lordships are of opinion that the current of decisions, now prevalent for manj^ years in the Court of Chancery, shows that the doctrine of precatory trusts is not to be extended ; and it is sufficient for that purpose to refer to the judgments given by Lord Justice James in the case of Laiiibc v. Eames, and by Sir Geouge (r) See also Macketl v. Mnckett Be Atkinson, Atkinson v. Atkiji- (1872), L. 1!. 14 K(\. 4U : Wilson ao» (1911), 80 J.. .F. Cli. 370. V. JJcll (\H(J'.i), L. I'i. 4 Cli. .381 ; («) (1882) 7 App. Ca.s. 321. Language Creating Trust. 20 Jessel in the case of lie Ilntchiiisoii (did Tenant.'' It is to l^e Art. 7. observed, however, that, in spite of this, the jiulgnu'nt was mainly based on the consideration that the subject of the gift was uncertain. " If there is uncertainty as to the amount or nature of the property that is p;iven over, two difficulties at once arise. There is not only difficulty in the execution of the trust, because the court does not know on what property to lay its hands, but the uncertainty in the subject of the gift has a rcjic.r action upon the ijrevwiis words, and thvoivs doubt upon the intention oj the testator, and seems to sJion- that lie could not possUdi) Itare intended his words of confidence, hope, or wJtat- erer they man he — his appeal to the conscience of tJie first taker — to he imperative icords. In this case nothing is given over to tlie children of the testator, except by an expression of con- fidence in his wife that she ^Yill deal justly in dividing the property- among them, and that she will do it when the pro- perty is no longer required by her. If the testator had given to his children such property as was not required by his wife, or if he had given over his projDerty if it was not required by his wife, the gift over would, according to a very well knowni and well-established class of cases, have been void, because of the uncertainty. It would have been void, not merely because the words of the gift over were precatory only, but it would have been void notwithstandin(i that the most direct and precise words of gift over might be used " co- in Be Hamilton, Trench v. Hamilton {u), a testatrix gave legacies to two nieces, adding, " I wish them to bequeath the same equally between the families of " 0. and P. The Court of Appeal held that the gift to the nieces was absolute, and that there was no precatory trust in favour of the families of 0. and P. In Hill V. Hill {x) family diamonds were given to a bride, and a document signed by her contained these words : " When I married, my molher-in-law gave them to me for my life with the request that at my death they might be left as heirlooms." Here, again, the Court of Appeal negatived any trust. {t) See also Be Hutchinson and (1795), 2 Ves. Jun. 333, 529, and Tenant (1878), 8 Ch. D. 540; is not inconsistent with Knight Re Bond, Cole v. Hawes (1876), v. Bougldon (1844), 11 CI. cV F 4 Ch. D. 238, where the words at p. b'^S, fer C.K., in Ee Oldfield were rather more imperative, Oldfield v. Oldfield, [1904] 1 Ch. but the decision was the same. 549. («) [1895] 2 Ch. 370. This {x) [1897] 1 Q. B. 483. case overruled Malim v. Keighley 30 Express or Declared Trusts. Art. 7, In Be Williams, Williams v, Williams (y), a. testator gave all his residuary estate to his wife, her heirs, executors, administrators, and assigns absolutely " in the fullest trust and confidence that she will carry out my wishes " in particulars which the testator set forth. It was held by EoMER, J., that there was no trust imposed in the wife. On the other hand, in Comiskei/ v. Bowriiui-Hanhnry{z), the House of Lords (reversing the majority of the Court of Appeal) held that the words " in full confidence " were, on the con- struction of the whole will, intended to create a trust. There the testator gave all his property to his wife " absolutely, in full confidence that she will make such use of it as I should have made myself, and that at her death she will devise it to such one or more of my nieces as she may think fit. And in default of any disposition by her thereof hy her will or testament, I hereby direct that all my estate and property acquired by her under this my will shall at her death be divided among the surviving said nieces." In the Court of Appeal, Lord Justice Yaughan Williams said that he assumed that, having regard to recent decisions, the words " in full confidence " did not constitute a trust in favour of the neices, and that that being so, the words from "in default of any disposition" down to the end of the gift imposed a condition which was repugnant to the previous absolute gift and void ; and Lord Justice Stirling was of the same opinion. In the last edition of this work it was submitted that this assumption was too wide and that there was no hard and fast rule of the kind ; and that although the testator's language was ambiguous it was difficult to resist the inference (reading the will as a whole) that his intention was to restrict his widow to a life estate with a power of appointment among the nieces (a) ; and finally that to give too unbending an interpretation to the word " absolutely " was as likely to disappoint the intentions of testators as would be the case if a strict interpretation were given to any other single word irrespective of other expressions in the will of an inconsistant character. The House of Lords on appeal (Lord Lindley dissenting) took this view, and held Gift in will that a trust had been created. If the gift is contained in a wo^dsMn^*^'^'^^ ^^^^ ^^^^ ^^^ precatory expressions in a codicil, the inference codicil. in favour of a trust is of course much stronger than where the (y) [1897] 2 Ch. 12. (z) [1905] A. C. 84, reported in the C. A. {sub nom. Re Han- bury, Ilanbury v. Fisher), [1904] 1 Ch. 415. (a) See Be Jones, Fichnrds v. Jones, [1898] 1 Ch. 438 ; but cf. Re Sanford, Sanford v. Sanford, [1901] 1 Ch. 939. Language Creating Trust. 31 gift and the precatory words are contained in the same instru- Art. 7. nient. Thus where a testatrix by her will gave a legacy of i!2,300 to R. and by a first codicil said " I wish li. to use i^l,000 part of the legacy for the endowment in his own name of a cot " at a named hospital, and by a second codicil said " I wish R. after endowing the cot to use the balance of the legacy for charitable purposes," it was held that 1\. was merely a trustee (h). Paragraph (2) (c). Whether a devise or bequest to A. in terms upon conditinii or J low far to the intent that some benefit may be conferred on B. creates a ''^Pi"^!'^"*^ "^ conditions trust or merely a charge or a personal liability on A. if he are construed accepts the devise or bequest is often a most difficult question. ^^ charges. As in the case of precatory words, however, it is entirely a question of interpretation of the will. If the true interpretation is that the property was beneficially given to A. subject to a definite sum being paid to B., then the gift to A. will not be construed as conditional ; for refusal to perform such a condition would result not merely in forfeiting A.'s interest, but also in depriving B. of the benefits which were intended to be conferred on him (c). Nor will it be construed as a trust, if a charge or equitable lien for the sum payable to B. would meet the case (J). If on the other hand the true interpretation is that the testator intended that A. should hold the property for the benefit of himself and B., or a fortiori if he did not intend A. to take beneficially at all, a trust and not a mere charge will be created (^')- A few illustrations may tend to throw some light on this, illustrations. In Ci(nniu(jhani v. Foot (c) property was devised to A. on condition of his well and truly paying legacies. Lord Cairns, L.C, said : " Well and truly paying must simply mean on condition of well and trul}^ paying, and therefore it being established law that a devise to A. ' paying ' a sum of money {b) Be Burley, Alexander v. (1878), 3 App. Cas. 974; Mer- Btirley, [1910] 1 Ch. 215. chcmt Taylors' Co. v. Ait.-Gen. (c) Be Oliver, Newbald v. {1871), h. R. G Ch. 512 ; Att.-Gen. Beckitt (1890), 62 L. T. 533, v. Wax Chandlers' Co. (1873), where the principles of the court L. R. 6 H. L. 1 ; Bird v. Harris are very lucidly stated by (1870), L. R. 9 Eq. 204; Be CmTTT, J. Cowlerj, Souch v. Cowley (1885), (d) Cunningham v. Foot (1878), 53 L. T. 494 ; Be Oliver, Xewbald 3 App. Cas. 974, per Lord v. Beckitt (1890), 62 L. T. 533; Cairns; Hughes v. Kelly {1S43), Be G., [1899] 1 Cli. 719; Be 3 Dru. & War. 482; Wood v. Booth, Booth v. Booth, [1894] 2 Cox (1837), 2 Myl. & Cr. 684. Ch. 282. (e) See Cunningham v. Foot 32 Express or Declared Trusts. Art. 7. to B. is not a trust, but is a charge, it must also be the law that a devise to A. to well and truly pay to B. is not a trust but is a charge ; and a devise to A. ' on the condition of well and truly paying ' must be a charge and not a trust " (/). On the other hand, in The Merchant Taijlors' Co. v. Attorney- Gntcral (ji) a testator had devised houses to the company " to this intent and upon this condition,"' viz., to provide garments for twenty-four poor persons each year and to " gather the whole residue of the rents into a stock and therewith repair and if need be rebuild the houses." with a gift over to another City company for the same purposes if the Merchant Taylors failed to carry out his behests. The income in course of time greatl}^ exceeded what was required for the purposes expressed in the will, and the question then arose whether the will created a charitable trust (in which case the balance would have to be applied for charity cij 2)re.H), or whether it was a beneficial debase to the company merely charged with the charitable dole. It was ultimately held that it was a trust and not a mere charge on the ground, apparently, that there was no indication that any beneficial interest whatever was intended to be given to the company, the testator having expressly provided what was to be done with the whole of the rents and having merely not fore- seen that there would in course of time be more than was needed for the purposes expressed. In liird v. Harris (/<) the testator bequeathed all his property to persons whom he appointed executors, " in and for the consideration of paying over the rents and profits to his wife for life." It was held by James, Y.-C, that there was no indication of any intention to benefit the executors, and that therefore a trust was created in favour of the wife for life with remainder for the testator's next of kin. In lie G. (/) a fund had been bequeathed to the testator's wife during widowhood, " she maintaining, educating and bringing up " the testator's infant sons and unmarried daughters. It was held that this was a trust in favour of the children and the wife herself. The case is not, however, very satisfactory, as the learned judge held that it was a hreacJi of trust for the widow to live in adultery, which seems a somewhat startling proposition. It is suggested that the true view would have been that the widow, having accepted the bequest, (/) And see also lie Oliver, (g) (1871) L. R. 6 Ch. 512. Newbold v. Beckitt (1890), 62 (A) (1870) L. R. 9 Eq. 204. L. T. 533. (i) [1899] 1 Cli. 719. Language Creating Trust. 33 was personally bound to maintain and educate the children Art. 7. not under a trust, but on the maxim Qui sciisit comiiioduui, debet sentire et onus {k). However North, J., came to a similar conclusion in Be Booth, Booth v.Booth{l), where the testator had given property to trustees in trust to pay or permit his widow to receive the income during her life " for her use and benefit and for the maintenance and education of my children." The learned judge said: "Suppose the gift had been made to a stranger for his use and benefit and for the maintenance and education of the testator's children, could there have been any doubt that he would have taken the income subject to a trust for the maintenance and education of the children ? No doubt the widow takes a share of the income, but I cannot say that the children are excluded from all interest, any more than I could if the widow had been a trustee — for she is a trustee — for any other persons." It may perhaps be pointed out that there was in that case undoubtedly a trust created and trustees appointed, and the only question really was who were the beneficiaries. It would seem to have been unnecessary for the learned judge to imply (as he did) a subsidiary trust of which the wife was trustee ; and indeed the inquiry which he directed " whether any and if any what provision ought to be made for the maintenance of the children out of the income " was quite consistent with the view that the trustees of the will were the trustees with liberty to bring the matter before the Court if the widow took too large a share of the income for herself personally. Generally the authorities are unsatisfactory with regard to Unsatisfac- the question when a condition will be construed as a trust, a a°uhorUi^s° charge, or a personal obligation binding on a person who accepts a conditional gift. But this is not surprising, as the question is really one of interpretation of the document and not a question of positive law. It is, however, well settled that mere words of expecta- Words of tion, or words explanatory of the donor's motive, never f;^^^^^^^'fj[i°° impose trusts on the donee. Thus, if a legacy be given to a tory of father " the better to enable him to bring up his children," no •"°^'^^- trust is thereby created ; for such words are only explanatory of the donor's motive (?/0. But where, on the other hand, {k) See Doe d. Willey v. Soiicli v. Cowley (18 85), 53 L. T. Holmes (1798), 8 T. E. 1 ; Pick- 494. well V. 8fencer (1872), L. R. {I) [ 1894] 2 Cli. 282. 7 Ex. 105 ; Be M' Malion, (m) Broivn v. Casa m ajor (1/99), M'Mahon v. JW Mahon, [1901] 4 Ves. 498 ; Benson v. ^^ MUim 1 Ir. R. 489 ; but c/. Be Cowley, (1831), 5 Sim. 22. T. D 34 Express or Declared Trusts. Art. 7. there was a bequest of income to A., " tliat lie may use it for the benefit of himself, and the maintenance and education of his children," it was held that a trust was intended to be imposed upon A. to maintain and educate his children (n). Agreements to create trusts. Contracts to create trusts. Taragraph (2) (d). The rule that a valid agreement to create a trust in J'utiiro, is sufficient to create a trust in 'priescnti, so as to bind the l)roperty in the hands of the parties, or those having notice of the agreement, depends on the maxim that " Equity regards that as done which ought to be done." It follows, therefore, that where a trust is alleged to have been created by an agrce- iiioit to do something, its validity depends on the question whether the agreement is one of which courts of equity would decree specific performance. If it was merely a voluntary promise (or even a covenant under seal, not sup- ported by valuable consideration), no trust will be created ; for equity gives no assistance to volunteers, and consequently there is nothing which can, under the foregoing maxim, be regarded by the court as done. This distinction between trusts depending on contracts, and trusts actually declared, will be emphasised iu Art. 8. The most usual instance of trusts arising out of contract is afforded by marriage articles. Not infrequently it would take so long to draw up a formal settlement, that the marriage would be unduly delayed if it were postponed until the settlement was executed. In such cases articles of agree- ment are signed, by which, in consideration of the marriage, the parties agree to execute a formal settlement, vesting certain property upon trusts indicated more or less roughly. Thereupon etjuity, regarding that as done which ought to be done, fastens a trust on the jiroperty, and treats any dealings with it inconsistent with the agreement, not only as a breach of contract, but also as a breach of trust. A marriage settlement contains a covenant by the intended husband that he will transfer to the trustees any property which may accrue to him in right of his wife during the marriage. Upon an}- property becoming vested in him Jarr mariti, he immediately becomes a trustee of it, upon (n) Woods V. Woods (1836), 1 Myl. & Cr. 401 ; ('rockctt v. Crockett (1848), 2 Ph. 5.53; and T(dhot V. ff Sullivan (1880), 6 L. It. Ir. 302 ; and see Bird v Maijbury (1864), 33 Jieav. 351; Horn V. Jlora (1863), 33 Beav. 88; Castle v. Castle (1857), 1 De G. & J. 352. Language Creating Trust. 36 trust to transfer it to the trustees ; and until that is Art. 7. done he himself holds it upon the trusts declared in the settlement (d). So where a father, in contemplation of his daughter's marriage, contracts to leave her a specified sum, or an aliquot part of his estate, if he dies without fulfilling his promise, his estate will be bound to make good the contract (j)). There must, however, have been a binding contract ; a mere repre- sentation of intention will not suffice, even although the marriage took place on the faith of it (q). Paragraph (3). That which at first sight appears to be a trust in favour of illusory another or others may prove to be illusory, if the document *™^'^- or the surrounding circumstances lead to the conclusion that no trust for the benefit of such person or persons was intended. Thus, where a man who is indebted, makes provision Creditor's for payment of his debts generally, by vesting property in ^"^ ^^'^' trustees upon trust to pay them, but does so behind the backs of the creditors and without communicating with them, the trustees do not necessarily become trustees for the creditors " The motive of the party executing the deed may have been either to benefit his creditors or to promote his own con- venience ; and the court has therefore to examine into the circumstances for the purpose of ascertaining what was the true purpose of the deed ; and this examination does not stop with the deed itself, but must be carried on to what has subse- quently occurred, because the party who has created the trust may, by his own conduct, or by the obligations which he has permitted his trustee to contract, have created an equity against himself " (r). (o) Lewis V. Madocks (1803), Cloiigh v. Samuel) [1905] A, C. 8 Ves. 150 ; Wellesley v. Wellesley 442. (1839), 4 Myl. & Cr. 561 ; Lyster {p) Luders v. Anstey (1799), 4 V. Burroughs (1837), 1 Dm. & Ves. 501 ; (1800)5 Ves. 217; i^am- Wal. 149; Uastie v. Hastie mers% v. dei5teZ( 1845), 12 Cl.&F. (1876), 2 Ch. D. 304; Agar v. 45, 61, n.; Coverdale v. Eastwood George (1876), 2 Ch. D. 706; (1872), L. R. 15 Eq. 121 ; Synge Cornmell v. Keith (1876), 3 v. %»9e, [1894] 1 Q. B. 466. Ch. D. 767; Be Turcan (1888), {q) Uammersley v. de Biel, 40 Ch. D. 5 ; Ee Clarke, (Joombe supra ; Jorden v. Money (1854), V. CaHer (1887), 36 Ch. D. 348. 5 H. L. Cas. 185; Maddison v. But as to the effect of the Alderson (1883), 8 App. Cas. at covenantor's bankruptcy before p. 473 ; Ee Fickus, Farina v. the expectancy vests, see Ee Fickus, [1900] 1 Ch. 331. Beis, Ex parte Clough, [1904] 2 (r) I'er Turnek, \'.-C., Smith K. B. 769, affirmed {sub. nom. v. liurst (1852), 10 Hare, 30. 36 Express ok Declared Trusts. Art. 7. Inferences arising with regard to creditor's deeds. Prima facie a trust deed for payment of the settlor's creditors f/encralh/, is deemed to Lave been made for the debtor's convenience. It is as if he had put a sum of money into the hands of an agent with directions to apply it in pay- ing certain debts, and such a trust is revocable, the debtor being, in fact, the sole beneficiary (.s). But on the other hand, where the creditors are parties to the arrangement, the inference then is that tlie deed was intended to create a trust in their favour, ^Yhich they are entitled to call on the trustee to execute (0- And so, even though they be not made parties, yet if the debtor has given them notice of the existence of the deed, and has expressly or imi^liedly told them that they may look to the trust property for payment, they may become cestuis que trusts (n), (1) if they have been thereby induced to exercise forbearance in respect of their claims {x), or (2) if they have assented to the deed and actively (and not merely passively) acquiesced in it, or (3) have acted under its provisions and complied with its terms, and the other side has expressed no dissatisfaction ; but not otherwise (r/). Moreover, where the trust is for particular named creditors (at all events where the facts show that the object of the settlor was to give them a preference over the general body of his creditors) (z), the inference is that they were intended to be benefited ; and a similar inference arises where the deed provides for payment of the settlor's debts at Ids deatJi with remainders over (a). (s) Walwyn v. Coutts, (1815) ;] Sim. 14 ; Garrard v. Lauder- dale (1830), 3 Sim. 1, affirmed, (1831), 2 Russ. & Myl. 451 ; Acton V. Woodgate (1833), 2 Myl. & K. 492 ; Bill v. Cureton (1835), 2 Myl. & K. at p. 511 ; Gibbs V. Glamis (1841), 11 Sim. 584 ; Henriques v. Bensusan (1872), 20 W. R. 350; Johnu v. James (1878), 8 Cli. D. 744; Henderson v. Rothschild, (1886), 33 Ch. D. 451). But see Re Fitz- tjeraUVs Settlement, Fitzgerald v. White (1887), 37 Cli. D. 18, and I'rieslleij v. Ellis, |1897J 1 Ch. 48'J, deciding cojitra as to trusts for creditors after settlor's death. [i) Machinnon v. Stewart (1850), 1 Sim. (N. !S.) 76 ; La Touche V. Earl of Liican (1840), 7 CI. & F. 772 ; Monlefiore v. Broune {\%m, 7 H. L. Cas. 241 ; and see Smith v. Cooke, [1891J A. C. 297. {u) Lord Cranworth in Synnot v. Simpson (1854), 5 H. L. Cas. 121. {x) Per Sir John Leach in Acton V. Woodgate (1833), 2 Myl. & K. 492. (?/) Fer Lord St. Leonards in Field v. Bonoughmore (1841), 1 Dru. & War. 227 ; see also Nicholson v. Tidin (1855), 2 Kay & J. 18 ; Kirwan v. Daniel (1847), 5 Hare, 493; Griffith v. Bicketis (1849), 7 Hare, 299; Cornthwaite v. Frith (1851), 4 De G. & Sm. 552 ; Siggers v. Evans (1855), 5 El. & Bl. 367; Gould V. Robertson (1851), 4 l)e (i. fc Sm. 509; Re Ashby, Ex 'paiie Wrejord, [1892] 1 Q. B. 872. (z) New, France and Garrard's Trustee v. Llunting, [1897] 2 Q. B. 19. [a) See per Lord Cranworth in Sijnnot v. S^'mpson (1854), 5 H. L. Cas. 121. Language Creating Trust. 87 And where it provides for siicli payment tro- V. Harding (1886), 17 Q. B. L). politan Railway Warehousing Co. 442; Carter v. Carter, [1896] 1 (1871), L. R. 6 Ch. 671 (where Ch. 62 ; Mallott v. Wilso7i, according to the C. A. in Be [1903] 2 Ch. 494. Empress Engineering Co., supra. How FAR Valuable Consideration Necessai{v. 31) (c) But a covenant between A. and B., whether based Art. 8. on vahiable consideration or not, creating rights which A. (or a trustee for him) may enforce at law against B. or vice versa, and also providing benefits for third parties, is prima facie a mere arrangement between A. and B. which they may vary or cancel, and is not enforceable by the third parties, unless, on the true interpretation of the covenant, the object of it was to confer an equitable interest on them (???). But if the con- tract be enforced by A. or B., it will be enforced for the benefit of the third parties as well (//). Paragraph (1). It is a well-known maxim that equity gives no assistance Examination to volunteers ; but like other epigrammatic expressions it "/ ^^^^ niaxim tllRt C(|llltv cannot be accepted literally. In order to understand the affords no' rules of equity with regard to volunteers, the distinction '^"j *^ between legal rights and equitable rights must be kept in mind. The true principle is, that a court of equity will give no assistance to a volunteer against the donor to perfect an inchoate intention to confer a bount}-. The would-be donor can be bound only in one of two ways. He is bound at common law if he has made a gift to the object of his bounty, or to a trustee for that object, or has covenanted under seal either with that object, or with a trustee for tbat object, to do something for breach of which a common law court will give damages ; and in either case equity will enforce the trust acfainst the trustee, and if the trustee refuses to enforce his legal rights against the donor the court will authorise the beneficiary to use his name. A donor is also bound in equity if he has declared liimseJf a trustee for the object ; for equity regards a declaration of trust as the equitable equi- valent of a common law gift. But where he has not declared himself a trustee, and has merely covenanted to create a trust without any trust being declared, equity will leave the the rule was stated too broadly) ; {;«) Davenport v. Bishopp Kelly V. Larlin, [1910] 2 Ir. R. (1843), 2 Y. &: Coll. C. V. 401 ; 550." affirmed (1846) 1 Ph. 698 ; and (m) Cases cited in note {k), see Lloyds v. Harper (1880), 16 supra; Be Flavell, Murray v. Ch. D., at p. 31 1. FUvell (1883), 25 Ch. D. 89. 40 Express or Declared Trusts. Art. 8. Part vested iu trustees and part agreed to be conveyed to them. Executed trust cannot be broken. parties to such common law rights (if any) as they may have, and ^Yill not aid then! by decreeing specific perform- ance. On the other hand, if a trust has been once declared and the interest of the settlor in the trust property vested in the trustee (or, in technical language, is an executed trust), courts of equity will enforce it, whether the party applying for relief gave valuable consideration or not ; even although the trustee should disclaim the trust and thereby revest the property in the settlor (o). As Kay, J., said in Henry v, Arm- strong ip), "■ The law is, that anybody of full age and sound mind, who has executed a voluntary deed by which he has denuded himself of his own propertij, is bound by his own act," Thus, in Jeff'erys v. Jeferijs {q), a father voluntarily conveyed freeholds to trustees upon certain trusts in favour of his daughters ; and also covenanted to surrender copyholds to the use of the trustees, to be held by them upon the trusts of the settlement. The settlor afterwards died without surrendering the copyholds, having devised certain portions of botli free- holds and copyholds to his wife. In a suit by the daughters to have the settlement enforced, it was held that the court would carry out the settlement of the freeholds; for with respect to them the trust was executed, the title of the daughters complete, and the property actually transferred to the trustees. On the other hand, it refused to enforce specific performance of the covenant to surrender the copyholds ; for with respect to them the trust was purely executory, the settlor having neither declared himself a trustee, nor trans- ferred the copyholds to the trustees. He had merely entered into a voluntary contract to transfer them, which a court of equity could not enforce. It will be perceived that at that date courts of equity and common law were quite distinct, so that no question could arise of the Court of Chancery giving damages for breach of covenant. The court simply left the parties to their remedy (if any) in a court of common law (q). By a marriage settlement, the wife's property was settled in default of children (after life estates to the husband and wife), in trust for the wife if she should survive the husband; (o) 2Iallott V. Wilson, [1903] 2 Ch. 494. (/j) (1881) 18 Ch. D. 668. {()) Jeffen/s v. Jcfferi/n (1841), Cr. & Pli." 138 ; and see also Bizzey v. Flight (1876), 3 Ch. D, 269, 24 W. R. 957, read in conjunction with the remarks of LiNDLEY, L.J., in Re Patrick, Bills V. Tatham, [1891] 1 Ch. 82 ; and see Marler v. Tommns (1873), L. R. 17 Eq. 8. How FAR Valuable Consideration Necessary. tl but in the event of the husband surviving the wife, then upon Art. 8. such trusts as the wife should hy will appoint, and, in default of appointment, in trust for her next of kin. There being no issue of the marriage, and the wife being past the age of child-bearing, the husband and wife sought to have the capital of the trust fund paid to them on the ground that, although the trust was based on value, the next of kin w'ere mere volunteers. The Court of Appeal, however, refused to permit this, Jessel, M.R., saying : " The fund has been transferred to the trustees. The fact of the next of kin being volunteers does not enable the trustees to part with it without the consent of their cestuis que t rusts. That has been the rule ever since the Court of Chancery existed." And Cotton, L.J., added : " I assume that this trust would not have been enforced if it were still executory. But this trust is executed, and the next of kin have an interest as cestuis que trusts. It is immaterial that they are volunteers. The trust cannot be broken on that account " (r). Where, however, the settlor has himself only an equitable Voluntary- interest, it is not essential to the validity of a voluntary settle- [ion cf "^'^" ment by him that he should procure the transfer of the legal equitable ownership) to the trustees. Thus, in Gilbert v. Overton (s), A., ^° ^^ ^' having an agreement for a lease, executed a voluntary settle- ment assigning all his interest in the agreement to trustees upon certain trusts. It was objected that he had not declared himself a trustee, nor intended to declare himself one, and had not conveyed the leasehold premises to the trustees. Wood, V.-C, however, said : " In the inception of this transaction, there is nothing to show that the settlor had the power of obtaining a lease before the time when he did so, after the execution of the settlement. There is, therefore, nothing to show that the settlor did not, by the settlement, do all that it was in his power to do to pass the property.'^ So, in Keh'wich v. JManmny (t), residuary personal estate was bequeathed to a mother for life, with remainder to her daughter absolutely. The daughter assigned all her interest under the will to trustees uj^on trusts (which were voluntary) in favour of her nieces. These trusts were upheld on the ground that the daughter had done all she could to divest (r) Paul V. Paul (1882), 20 Keen, 123 ; and Ei/croft v. Ch. D. 742. As to the effect, if Christ;/ (1840), 3 Beav. 238. there had merely been a coue?wmi (t) (1851) 1 De G. M. & G. to settle, see tn/ro, p. 52. 176; Voyle v. Hughes (1854), (s) (1864)2Hem.&M. 110;and 2 Sm. & G. 18. see ColUnson v. Pattrick (1838), 2 42 Express or Declared Trusts. Art. 8. Debts assigned, but subsequently got in by settlor. herself of her interest under the will. For she had a mere equitable remainder, and the only way in which she could transfer it was by assignment. If she had been the legal owner of the fund it would have been necessary for her to transfer it in the proper way in the books of the bank ; but not being the legal owner, she did all she could do to transfer it(/(). The result would, it is conceived, have been the same, even if the daughter had been entitled in possession instead of in remainder (.r), notwithstanding that in such a case she could have called on her trustees to assign the legal ownership to the trustees of the voluntary settlement. So, again, where one effects a policy on his life, under the terms of which the money is to be paid to his children unless he shall otherwise appoint by will, the children obtain complete equitable rights subject to be defeated by the exercise of the power ; for there is nothing more to be done by the settlor {y). In Bizzeji v. Flight (z), A. {inter alia) assigned certain mortgage debts to trustees upon certain trusts. The settlement, however, contained no transfer of the mortgage securities. A. subsequently received the money due on some of the mort- gages, the trustees receiving the money due on others. It was held by Hall, Y.-C, that, as the mortgaged property was not transferred to the trustees, the settlement was essentially incomplete, and, being a voluntary settlement, was void. In a more recent case before the Court of Appeal, however (a), in which the only difference was that the mortgage was a bill of sale of chattels, the court held that the settlement was a complete and binding assignment of the debt, and threw some {u) The chief difficulty is to determine what is a complete assignment and what is not. See Donaldson v. Donaldson (1854), Kay, 711 ; Edwards v. Jones (1836), 1 Myl. & Cr. 226 ; Pearson v. Amicable Assurance 6'o.(1859), 27 Beav. 229; Fortcscue V. Barnett (18:U), 3 Myl. & K. 36 ; lie King, Sewell v. King (1879), 14 Ch; D. 179; Harding V. Harding (1886), 17 Q. B. D. 442 ; yanney v. Morgan (1887), 37 Ch. D. 340 (equitable interest in shares) ; and Jie Earl of Lucart, Hardinge v. Cobden (1890), 4.'-> Ch. D. 470. («) See Nanney v. Morgan, supra ; Gason v. Rich (1887), 19 L. R. Jr. 391 ; Bentleij v. Mackay (1851), 15 Beav. 12; Tierney v. Wood (1854), 19 Beav. 330; Ee Walhampton (1884), 26 Ch. D. 391 ; and per Wood, V.-C, Gilbert v. Overton (1864), 2 Hem. & M. at p. 117 ; but cf. Bridge v. Bridge (1852), 16 Beav. 315. (if) Fe Davies, Davies v. Daries, [18921 3 Ch. 63 ; and see also Ee FlarelL Murray v. Flavell (1883). 25 Ch. D. 89 ; Wihon v. Lord Bury (1880), 5 Q. B. D. 518 ; and'Ashby v. CosHn (1888), 21 Q. B. D. 401*. (r) (1876) 3 Ch. D. 269; 24 W. R. 957; and to same effect Ward v. Aiidland (1845), 8 Bear. 201, and Woodford v. Charnley (1860), 28 Beav. 96. (a) Ee Patrick, Bills v. Tatham, [1891 J 1 Ch. 82. How FAT! Valuable Consideration Necessary. 43 doubt on the correctness of the decision in Bizzey v. Fluihl and Art. 8. Woodford V. Chamh' 11 {supra). It appears, however, that their lordships distinguished the two cases on the ground that a bill of sale was different to a mortgage of land, in which a transferee of the debt would be unable to give a receipt for the money unless he could rcconvey the mortgaged property, whereas on payment of a bill of sale no reassignment of the mortgaged chattels is required. It must also be remembered that before 1878 a debt could not be assigned at law, which seems to have been the ratio decidendi in Ward v. Andland(h). It seems to be clear that a direction by a mortgagee to a mortgagor to invest the debt in securities for the benefit of third persons creates an executed and irrevocable trust (e). With regard to acts showing that a person has constituted Declaration himself a trustee (although there is no actual declaration of "^ ^V^^^ . ° implied from trust) the case of Gee v. Liddell (d) may be referred to. conduct. There a testator bequeathed £,'2,,000 on certain trusts, and empowered his executor (who was also his residuary legatee) to retain the amount in his hands uninvested, paying interest thereon at four per cent, per annum. After the testator's death, the executor, being satisfied that the testator intended to bequeath ^03,000, and not ,i2,000, said to the legatee's father : "It shall make no difference, and I will take care that he (the legatee) shall have i' 1,000 more than he is entitled to by the will." Subsequently he signed a memorandum in these words : "By the will, etc., of the late S. G. the said J. G. (the executor) pays to T. W. (the legatee) the annual sum of ^120 by two equal payments, viz., the 6th July and the 6th January in each year, being interest at four per cent on ,i'3,000." He also signed a further memo- randum, stating that he had told the legatee that he should make the ;i;2,000 up to ,i;3,000; and down to his death he in fact paid interest on the iB3,000. On these facts, it was held that the executor had effectually constituted himself a trustee of an additional £1,000 of the residuary estate. In Grail v. Gray {e) a testatrix gave to a trustee (who was also residuary legatee) a sum of i'2,000 stock upon certain (b) (1845) 8 Beav. 20L 19; T/iorpe v. Owen (1842), 5 Beav. {c) Patersonx. Murphy {\So2), 224; Armstrong v. Timperon, 11 Hare, 88 ; and see also Moore [1871] W. N. 4 ; /;;.*• parte P>/e, K.r V. Darton (1851), 4 De G. & Sm. 2^«''<' J^^dwst (1811), 18 Ves. 140; 517. and Re Bellasis' Trusts (1871), (d) (1866) 35 Beav. 621 ; and L. R. 12 Eq. 218. see also New, Prance and Garrard'' s (e) (1852) 2 Sim. (x. s.) 273. Trustee v. Hunting, [1897] 2 Q. B. 44 Express or Declared Trusts. Art. 8. trusts. She subsequently expressed to the residuary legatee a wish to add another .i'2,000 to the trust fund, but died before doing so. The residuary legatee, however, transferred two sums of £2,000 stock into her own name and gave the beneficiary a power of attorney to receive the dividends. Held that she had constituted herself a trustee of the second as well as of the first i^2,000. Again in WhcatJcij v. Purr (/) a sum of i'2,000 was, by the direction of H. 0., carried by her bankers to an account in the name of herself " as trustee for " the plaintiffs. The bankers gave H. 0. a promissory note for the amount payable fourteen days after sight with interest. After II. O.'s death the £2,000 and accrued interest were paid to her executors. Held that H. 0. had constituted herself a trustee of the fund irrevocably. In liohcrtHon v. Morncc (g) a trustee having (in breach of trust) used trust funds for his own benefit, directed his clerk to buy stock, and expressed to him his wish that the stock so purchased should be appropriated to replace the mis- appropriated stock. The clerk purchased the stock in the trustee's name. On the death of the trustee it was held that he had constituted himself a trustee of the purchased stock. Paeagraph (2). Imperfect On the other hand, although some judges have held that an gift not instrument executed as a present assignment (but in reality declaration not operative as such) is equivalent to a declaration by the of trust. donor that he holds the property in trust for the donee (//), the balance of authority is unmistakably the other way. For an intention to create a trust is essential to the creation of one, and when a man purports to make a gift or an assignment, he cannot reasonably be supposed to have intended to declare liimself a trustee— a character which assumes that he retains the property (/). (/) (1837), 1 Keen, ^r>\ ; and (i) Bacon, V.-C, in Warriner aee aho Morton V. T€wart{\S42), v. Eogers (1873), L. R. 16 Eq. 2 Y. & Coll. C. C. 67. 340 ; Sii- Ceorge Jessel, M.R., {g) (1845), 9 Jur. 122; and in Michards v. Delbridge (1874), see Vandenburg V. Palmer (1858), L. R. 18 Eq. 11; and Hall, 4 Kay & .7. 204. V.-C, in Re Breton's Estate, Bre- (h) Bichardson v. Bichardson ton \. Woollven (1881), 17 Cli. D. (1867), L. R. 3 Eq. 686, Wood, 416. See also Jones v. Lock V.-C. (afterwards Lord Hatheu- (186.5), L. R. 1 Ch. 25; Heartleyv. LEY); Morfjanv. ]\IaUeson(\81()), Nicholson (1875), L. R. 19 "Eq. L. R. 10 Eq. 475, Lord Roaully ; 233 ; Be Shield, Pethybridge v. Baddeley v. Baddeley (1878), 9 Burrow (1885), 53 L. T. 5; and Ch. D. 113, Malinr, V.-C. ; Airey it is submitted that, both on V. Hall (1856), 3 Sm. & G. 315, principle and authority, the law Stewart, V.-C. as laid down by the Master of the How FAR Valuable Consideration Necessary. 46 Thus, in Antrobus v. Smith (j), the alleged settlor made the Art. 8. following indorsement on a share held by him in a public company : "I do hereby assign to my daughter B. all my right, title, and interest of and in the enclosed call, and all other calls, in the F. and C. Navigation." The indorsement did not operate as a valid assignment of the share, but it was contended that it operated as a valid declaration of trust. The court, however, rejected this view, the Master of the Rolls saying : " Mr. Crawfurd (the alleged settlor) was not in form declared a trustee, nor was that mode of doing what he proposed in his contemplation. . . . He meant a gift, and there is no case in which a party has been compelled to perfect a gift which in the mode of making it he has left imperfect." Again, a settlor had children by a first wife, and one son (an infant) by a second wife. One day, on his return from a journey, the infant's nurse said, " You have come back from Birmingham, and have not brought baby anything " ; upon which the settlor answered, " Oh ! I gave him a pair of boots, and now I will give him a handsome present." He then went upstairs and brought down a cheque which he had received for i:900, and said, " Look you here, I give this to baby ; it is for himself ; I am going to put it away for him, and will give him a great deal more with it ; it is his own, and he may do what he likes with it." He then put the cheque away. A few days after the above took place, he suddenly died, leaving the child penniless. The legal right to the cheque could, of course, only pass by indorsement (and no indorsement had been made). It was held that there was nothing more than an inchoate intention to do whatever was necessary to invest the proceeds of the cheque for the child's benefit, and that, the father having died before he had carried out his intention, a court of equity could give no aid to the child (/t). Rolls iu liichardu v. Delbridge is L. T. 5, and Marler v. Tommas accurate. (1873), L. R. 17 Eq. 8 (which (j) (18U5) 12 Ves. 39. Shares or seem to be incousisteut with Be stocks must be transferred ac- King, Sewell v. King (1879), 14 cording to the company's regu- Ch. D. 179, the authority of lations {Societe Generale de Paris wliich is respectfully questioned), V. Walker (1885), 11 App. Cas. a,nd Vincent y. Vincent (1886), 35 20 ; Boots V. Williamson (1888), W. R. 7, and Be Smith, Champ v. 38 Ch. D. 485 ; Iliitual Provident Marshallsaij (1890), 64 L. T. 13 ; Land and Building Society v. and see, as to imperfect gifts at Macmillan (1889), 14 App. Cas. common law, Irons v. Smallpiece 596). (1819), 2 B. & Aid. 551, and (fe) Jones V. ioc/o (1865), L. R. Cochrane v. Moore (1890), 25 1 Ch. 25 ; and see also Be Shield, Q. B. D. 57. Pethybridge v. Burrow (1885), 53 46 Express or Declared Trusts. Art. 8. statement of the law in Milnnj V, Lord. On similar principles, where an expectancy is ostensibly assigned to trustees, no volunteer can enforce the trust against the assignor. For an assignment of an expectancy- is void at common law, and although courts of equity construe such a document as a contract to assif/n if if and when the expectancy falls in, yet it only enforces such an equitable contract when it is based on valuable consideration (/). So in Milroi/ v. Lord (m), Turner, L.J., laid it down that, " in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property, and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual ; and it will he equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes. But in order to render the settlement binding, one or other of these modes must (as I understand the law of this court) be resorted to, for there is no equity in this court to perfect an imperfect gift." It was at one time thought that there was an exception (or a seeming exception) to this principle in the case of husband and wife (n), but the decision of the late Vice-Chancellor Hall, contra, in He Breton's Estate, Breton v. Woollren (o), has thrown considerable doubt on the soundness of that view. The point is, however, no longer of importance, as, by the Married "Women's Property Act, 1882 (15 & 46 Vict. c. 75), gifts made by a husband to a wife are as valid as gifts made by one stranger to another. How far trusts aris- ing out of contracts can be enforced by third parties who are volunteer.--. Paragraph (8). The subject of trusts in favour of volunteers arising out of contracts, is one of considerable difficulty ; but it is believed that the above rules will solve all the decided cases. It is quite clear that a voluntary covenant to create a trust is not enforceable ; but there is a distinction between a voluntary covenant to create a trust, and a vol ant Kr// trust oj a covenant (I) Be Ellenborough, Towry Law V. Burne, [1903] 1 ("li. mi. (m) (1862) 4 De (;. F. & J. 264. (?t) fjrrant v. Grant (i860), 34 Beav. 623 ; followed by Malins, V.-C, ill Baddeley v. Baddeley (1878), 9 Ch. D. 113, and by JJacon, V.-C, ill Fox v. Ilawlcs (1879), 13 Ch. D. 822. (0) (1881), 17 Ch. D. 416. How FAR Valuable Consideration Necessary. 47 enforceable at law. The true principle is that, whether the Art. 8. contract is a voluntary covenant or a contract based on valu- able consideration, prima Jade the only persons who can enforce it are those who could sue upon it at common law, viz., the persons who were parties to it. But there is an exception to this, viz., that where the contract is not merely an arrangement between A. and B., the parties to it, but is a contract by A. to transfer property or pay money to B. upon trusts set out in the covenant, the trusts being either for the covenantor and others or for others exclusively, then, as there are trusts declared and a trustee appointed, it becomes not a mere question of intention to create a trust in future, but rather a question whether, on the true construction of the document, there was an intention to give third parties immediate equit- able rights. If that be the true construction, then the Court will either order the trustee to lend his name to the volunteers or (to avoid circuity) will, at the suit of the volunteers, enforce the covenant against the settlor to the same extent as the trustee could enforce it at common law, but the equitable remedy of specific performance will not be decreed. When a man covenants with a trustee to pay him money Test of for a third person, the test for deciding whether or not that ^iq^^'q b'/^*^ third person is a cestxd que trust was stated by Jessel. M.ll., Jessci, 5lr. in Re Empress Engineering Co. (p), as follows : "As a general rule that will not be so. A mere agreement between A. and B. that B. shall pay C. (an agreement to which C. is not a party either directly or indirectly) will not prevent A. and B. from coming to a new agreement the next day releasing the old one. If C. were a cestui que trust it would not have that effect. I am far from saying that there may not be agreements which may make C. a cestui que trust. There may be an agreement like that in Gregory v. Williams (q), where the agreement was to pay out of property, and oue of the parties to the agreement may cujistitutc himself a trustee of the property for the benefit of the third party. So again it is quite possible that one of the parties to the agreement may be the nominee or trustee of the third party ; . . . a married woman may nominate somebody to contract on her behalf ; but then the person makes the contract really as trustee for somebody else, and it is because he contracts in that character that the cestui que trust can take the benefit of the contract." In Gandii v. Gand>/{r), Cotton, L.J., put the case thus : '* As Rule stafcd by Cotton, (p) (1880) 16 Ch. D. 125, 129. (r) (1885) 30 Cli. D. 57, 66, j. -T., ami (g) (1817) 3 Mer. 582. in whicli the rule as stated in i-owen, L.J. 48 Express or Declared Trusts. Art. 8. The question is really one of interpre- tation of the document. Cohjear v. Lady Jltil- f/rave ex- plained. a general rule a contract cannot be enforced except by a party to the contract ; and either of two persons contracting together can sue the other, if the other is guilty of a breach of, or does not perform the obligations of, that contract. But a third person — a person who is not a party to the contract — cannot do so. That rule, however, is subject to this exception: if the contract, although in form it is with A., is intended to secure a benefit to B., so that B. is entitled to say he has a beneficial right as cestui que trust under that contract ; then B. would, in a court of equity, be allowed to insist upon and enforce the contract." And in the same case Bo wen L.J., said : " What- ever may have been the common law doctrine, if the true intent and true effect of this deed (a separation deed between husband and wife) were to give to the children a beneficial right under it, that is to say, to give them a right to have these covenants performed, and to call upon the trustees to protect their rights and interests under it, then the children would be outside the common law doctrine, and would in a court of equity be allowed to enforce their rights under the deed. But the whole ai:)plication of that doctrine, of course, depends upon its being made out that, upon the true construction of this deed it was a deed which gave the children such a beneficial right." The question, therefore, appears to be purely one of interpretation of the transaction in each case. Was the contract intended to be merely an agreement between the parties which they might vary or release ; or was it intended to confer on others equitable rights capable of being enforced by the covenantee, as trustee for them, at common law ? In considering this question the nature of the transaction is a most important factor. An excellent example of the rule in sub-paragraph (a) is aftbrded by the case of Cohjear v. Lady Mulgrare (.s). There a father, who had four natural daughters and a legitimate son, entered into an agreement icitJi the son, whereby the father covenanted to transfer the sum of ^'20,000 to a trustee for the benefit of the four daughters ; and the son covenanted to pay the father's debts. The son paid some of the debts, and died before the covenant by the father was performed, having by his will left the fatJier Jns sole lef/atce and executor. It was held that the daughters could not force the father to perform the covenant to settle £20,000 upon them. It will be perceived Touche V. Metropolitan Railway Warehousing Co. (1871), L. R. 6 Ch. 671, was held to be too wide. (*•) (1836) 2 Keen, 81. How FAR Valuable Consideration Necessary. 49 that the coveiiiint was liei'o iniuki ////// the son, and not with Art. 8. the contemplated trustee. It consequently conferred no legal right to sue on any one except the son's personal representa- tive, who being the other party to the contract could not sue himself. It was, therefore, nothing except a voluntary covenant to create a trust in futido, neither of the parties contracting as triiateefor the daughters. Such cases are simple because there is no covenant made (.'ovenant wltlt a tnistee for the third parties, hut merely a covenant asluch^mav*^ between two persons to make a future trust in favour of the or may not be volunteer. The difHculty connnences when the covenant is ^^^ t^hj entered into with a person who is admittedly a trustee for parties. some one, and confers on the trustee a right to bring a common law action for breach of the covenant. In a sense he thereupon becomes the trustee of a legal chose in action (i.e., of the legal right of enforcing the covenant), and the question then becomes not unlike that discussed under the head of illusory trusts on p. 85, ajitc, viz., whether on the true construction of the covenant it was merely a matter of arrangement between parties to it which either of them could release, or whether it was intended to confer immediate equitable rights on the third parties to call on the trustee to enforce his common law right under the covenant. The simplest case is where the covenant is made between Where the the covenantor and the trustee only, and the trust is wholly are^the^ for the benefit of A., who is no party to the contract. In that covenantor case it is obvious that the w^hole transaction would be futile trustee, except on the basis that A., and A. only, was intended to be benefited by it. Hence in such cases A. can ask the court to let him enforce those legal rights which were by the covenantor conferred on the trustee as trustee tor liim. The case usuajly cited on this branch of the subject is Fletcher v. Fletcher {t). The facts there were that the settlor, by a voluntary deed, covenanted with trustees that in case A. and B. (his natural sons) or either of them should survive him, his personal representatives should within twelve months pay £60,000 to the trustees upon trust for A. and B. or such of them as should attain twenty-one. Held, after the covenantor's death, that although the deed of covenant was voluntary, it nevertheless created a trust for A. (the survivor of A. and B.), and that the refusal of the trustees to sue at law upon the covenant did not prejudice the right of A, to recover payment (0 (1844) 4 Hare, 67. T. 50 Express or Declared Trusts. Art. 8. of the debt out of the assets of the covenantor. In giving judgment Wigeam, Y.-C, said : "The first proposition reHed upon against the claim in equity, was that equity will not interfere in favour of a volunteer. That proposition, though true in many cases, has been too largely stated. A court of equity, for example, will not, in favour of a volunteer, enforce the performance of a contract in specie. That it will, however, sometimes act in favour of a volunteer is proved by the common case of a volunteer on a bond, who may prove his bond against the assets. Again, where the relation of trustee and cestui que trust is constituted, (as where property is trans- ferred from the author of the trust into the name of a trustee, so that he has lost all power of disposition over it, and the transaction is complete as regards him), the trustee having accepted the trust, cannot say he holds it, except for the purpose of tlie trust ; and the court will enforce the trust at the suit of a volunteer. According to the authorities, I cannot, I admit, do anything to j^erfect the liahiUty of the author of the trust if it is not already perfect. This covenant, hoicever, is already jierfect. The covenantor is liabh' at law and the court is not called upon to do any act to perfect it. One question made in argument has been, whether there can be a trust of a covenant, the benefit of which shall belong to a third party ; but I cannot think there is any difficulty in that. . . . The rule against relief to volunteers cannot, I conceive, in a case like that before me, be stated higher than this — that a court of equity will not, in favour of a volunteer, give to a deed any effect beyond what the law will give to it. But if the author of the deed has subjected himself to a liability at laiv, and the legal liability comes regularly to be enforced in equity, the observation that the claimant is a volunteer is of no value in favour of those who represent the author of the deed. If therefore the plaintiff himself were the covenantee, so that he could bring the action in his own name, it follows from what I have said, that, in my opinion, he might enforce payment out of the assets of the covenantor in this case. Then does the interposition of the trustee of this covenant make any difference? I think it does not. . . . I give no assistance against the testator, I only deal with him as he has dealt by himself; and if in such a case a trustee will not sue without the sanction of the court, I think it is right to allow the cestui qne trust to sue for himself in the name of the trustee, either at law or in this court as the case may require," How FAR Valuable Consideration Necessary. 51 The same point was also discussed in TAoycVs v. Harper {u). Art. 8. where a father, on the occasion of his son being admitted „ ; '. . '^ Covenant as an underwriting member of the association known as with a com- " Lloyd's," gave a guarantee to the managing committee of [^g^^^gj^flt the association by which he held himself responsible for all of una^-cei- his son's engagements in that capacity. The association, in ^^^^^^ ^ ^^• whom the rights of the committee had become vested by statute, sixteen years after the date of contract sought to enforce the guarantee for the benefit of the persons, ichether members of Lloyd's or not, with whom the son had contracted engagements as an underwriting member, he having become a bankrupt, and it was held that the plaintiffs were entitled so to do. It is clear that the association were not nominees on behalf of the persons who were to benefit by the guarantee, and moreover they entered into the contract for the benefit of persons who were not in existence at the date of the contract. The point was taken that, assuming that Lloyd's were entitled to sue on the guarantee at all, the utmost which they could recover was nominal damages, because the association had not sustained any loss, the loss having been sustained by the persons who had entered into the contracts with the son. Lord Justice James said (.r) : " The defendants say, ' You, Lloyd's, have sustained no loss, and can only recover nominal damages, because you can only recover for your own loss, and not for the losses sustained by other persons.' That might be true if Llo3^d's were not trustees, but I am of opinion that Mr. Justice Fry was well warranted in the conclusion at which he arrived, that the engagement was made with the committee as trustees for and on behalf of the persons beneficially interested. That brings the case within the authorities, of which there are more than one, viz., Gregory v. Wdliams {y), Lamb v. Vice {z), and many other cases which proceed on the obvious principle that, if A. is trustee for B., A. can sue on behalf of B." Lord Justice Cotton, in giving judgment to the same effect, referred also (a) to Tomlinson v. GUl{b), and said that the principle there laid down by Lord Hardwicke " is, I think, a good and sound one, and one upon which we can properly act, and are bound to act in the present case, treating the plaintiflfs, Lloyd's, as trustees for those for whose benefit this contract was entered into." And Lord Justice Lush said {c), " I (u) (1880) 16 Ch. D. 290. {a) (1880) 16 Ch. D. at p. 317. {x) (1880) 16 Ch. D. at p. 315. {b) (1756) Ambl. 330. iy) (1817) 3 Mer. 582. (c) (1880) 16 Ch. D. at p. 321. (s) (1840) 6 Mee. & W. 467. E 2 52 Express or Declared Trusts. Art. 8. Covenants in partnership (ieeds for the benefit of a partner's widow or children. Covenants in marriage settlements to settle after acquired property. consider it to be an established rule of law that where a con- tract is made with A. for the benefit of B., A. can sue on the contract for the l:)enefit of B. and recover all that B. could have recovered if the contract had been made with B. himself" ((/)• A more complicated case arises where (as frequently happens) a covenant is contained in a partnership deed providing for the payment of an annuity to the widow or children of one of the partners in the event of his death during the partnership. It has been held (c) that as such provisions create a legal liability in the surviving partner to pay, and as the ohjcct of them is to confer an equUahh; henejicial right on the widow or children, they can enforce it, the personal repre- sentative of the deceased being considered as a trustee for them. This is a somewhat extreme case, as it seems to have been admitted by the Court of Appeal that it involved the rather serious proposition that the partners could not have cancelled or varied the articles of partnership so as to deprive the widow or children of this interest. North, J., in the court below seems to have felt the force of this objection, as he relied upon the fact that the widow in question was also executrix of the deceased and as such could enforce the covenant in that character at law ; but the Court of Appeal do not seem to have seen any necessity for relying upon that, and both courts held that when paid to the executrix she held it as trustee for herself free from any rights of her late husband's creditors. On the other hand there is no inference that an executory marriage contract is intended to confer any equitable rights on any one except the spouses and the issue of the marriage. This was recently discussed in He Plnmptres Marriage Settle- ment, Unde.rhill v. Pliimptre (./). In that case a marriage settlement contained the usual covenant by husband and wife with the trustees for the settlement of after-acquired property of the wife. The husband subsequently made a present of some stocks to the wife, and, after her death without issue, the question arose whether the next of kin of the wife (who took the settled fund in default of issue) could call upon the (d) And see to same effect, Gregory v. Williams (1817), 3 Mer. 582, and Crofton v. Ormshy (1806), 2 Sch. &Lef. .583. (e) lie Flavell, Mxuray v. Flavell (1883), 2.5 Ch. D. 89; and to the same effect, Page v. Cox (1852), 10 Hare, 163. (/) [1910] 1 Ch. 609 ; and see Be Anstis, Chetwynd v. Morgan (1886), 31 Ch. D. 596, 605; Green v. Paterson (1886), 32 Ch. D. 95 ; and Re JD'Angibau, Andrews v. Andrews (1880), 15 Ch. D. 228. How FAR Valuable Consideration Necessary. 53 trustees to enforce the covenant against the husband, in whom Art. 8. the stocks were then vested, as her administrator and jure mariti. It was urged on behalf of the next of kin that the case was governed by Fletcher v. Fletcher (g), and that where there is a right at law in trustees to enforce a covenant for the benefit of volunteers, they are bound to enforce that right — that in fact the conferring upon them of a legal right for the benefit of volunteers is an executed trust 0/ iJiat right. It was, how- ever, held by Eve, J., that this was not so. The learned judge said : " What is their (the next of kin's) position here "? They are not in my opinion cestuis que trusts under the settlement " (of the stocks in question), " for nothing therein amounts to a declaration of trust, or to anything more than an executory contract on the part of the husband and wife ; it is, so far as the next of kin are concerned, what Cotton, L.J., calls a voluntary contract to create a trust as distinguished from a complete voluntary trust such as existed in the case of Fletcher V. Fletcher (g) . . . The collaterals are no parties to the contract (h) ; they are not within the marriage consideration and cannot be considered otherwise than as volunteers (i), and in this respect it makes no difference that the covenant sought to be enforced is the husband's and that the property sought to be brought within it comes from the wife. For each of the foregoing propositions authority is to be found in the judgment of the Court of Appeal in Re D'Angihau, Andre irs v. Andrews (k) ; and in the same judgment is to be found this further state- , ment — that where, as in this case, the husband has acquired a legal title, as administrator of the wife, to property which was subject to the contract to settle, volunteers are not entitled to enforce against that legal title the contract to create a trust contained in the settlement." It may j^erhaps be added, that although trustees for parties privy to valuable consideration are themselves privy to it, it is only as trustees for such henejicial privies, and that when (as in the above case) the only beneficial privy left is the person against whom the contract is sought to be enforced, it v»'Ould be somewhat anomalous that tliey should be bound to proceed against him for the benefit of volunteers who could not proceed against him themselves. ig) (1844) 4 Hare, 67. {i) See to same effect, Ander- (h) They would not be neces- son v. Abbott (1857), 23 Beav. saiy parties to an action to 457, where the contract between enforce it by a party to the the husband and wife was post- consideration : see Fowler v. nuptial. James (1847), 1 Coop. tem,^). (/.) (1880) 15 Ch. D. 228. Cott. 290. 54 Express ?0R Declared Trusts. Art. 8. Covenants in marriage settlements benefiting children of wife by former husband. The question whether the children of a widow, who, on a second marriage, makes or procures a settlement in their favour, can enforce the performance of a covenant or an incompleted trust is not free from difficulty. In Clarke v. Wrifjht (/), some of the judges in the Exchequer Chamber went so far as to extend the marriage consideration to all relatives of an intended wife, and even to the relatives of an intended husband w'here he was not the settlor, on the ground that a benefit to these relatives must have formed part of the marriage bargain so as to take them altogether out of the category of " volunteers." As shown above, however, that is certainly not the law with regard to a wife's "next of kin " ; and has been expressly overruled by the Privy Council {m). The fact that they are volunteers, however, does not dispose of the question, because, as we have already seen, a covenant with trustees enforceable at law may be enforceable by volunteers if, on the construction of the instrument, beneficial rights were intended to be given to them. Contingent trusts in favour of an unascertainable class of next of kin resting on covenant, confer no equitable rights on them, because they can scarcely be supposed to have been objects of bounty in an arrangement between two persons about to marry. But the case of a widow who is about to remarry making some pro- vision for existing children for whom personally she entertains maternal affection, is upon quite a different plane. Anyhow, where they are placed on the same footing as the children of the intended marriage, it seems clear that they would be able to enforce such legal rights as were conferred on the trustees by the covenant {n). Art. 9. — What Fropcrtij is capable of hciiuj iiiadt' the Subject of a Trust. All property, real or personal, legal or equitable, at home or abroad, and whether in possession or action, (I) (1861) 6 H. & X. 849; Gale V. Gale (1877), 6 Cli. D. 144 ; and see also Leonard v. Leonard (1910), 44 Ir. L. T. 155. (m) De Mestre v. West, [1891] A. C. 264 ; Nairn v. Frowse (1802), 6 Ves. 752 ; Re Cameron and Wells (1887), 37 Ch. D. 32 ; and AH. -Gen. v. Jacobs-Sinith, [1895] 2 Q. B. 341, where such a limitation was held to be volun- tary for purposes of account duty. (n) 3Iaclie v. IferbeHson (1884), 9 App. Cas. 303, 337, a Scottish case, but apparently on this point applicable to English settlements ; and see to same effect, De Mestre v. West, supra, at p. 270 of the report. action. What Property the Subject of a Trust. 65 remainder, reversion, or expectancy, may be made the Art. 9. subject of a trust, unless — (a) the policy of the law or any statutory enactment has made it inalienable ; or, (b) being land, the tenure is inconsistent with the trusts sought to be created (o). A person, holding an agreement for a lease, assigned all his Equitable interest under it to trustees upon certain trusts. Here, ^^^^^I'^sts. although the legal term was not in the settlor, it was held to be a good settlement, because he had conveyed his equitable interest in the property (p). A. owes i^l,000 to B. B. assigns this debt to trustees Choses in upon certain trusts. This transaction is perfectly good. Prior to the Judicature Act, 1873 (36 & 37 Vict. c. 66), debts and other legal choses in action were not assignable at law, on the ground (as put by Lord Coke) that it " would be the occasion of multiplying of contentions and suits, of great oppression of the people, and the subversion of the due and equal execution of justice " (10 Co. 48). But even at law negotiable instru- ments (as debentures, bills of exchange, and j^romissory notes made negotiable) were exceptions to the rule ; and so were all contracts where a novation took place, that is to say, where both parties to the original contract assented to the transfer of the interest of one of them. Equity, however, almost always, from its earliest days, disregarded the legal doctrine, and freely enforced contracts for the sale of choses in action ; and now, by 8 & 9 Vict. c. 106, s. 6, contingent and future interests and possibilities, coupled with an interest in real estate, may be granted or assigned at law. But not so possi- bilities in personal estate which still remain only assignable in equity {q). By 30 & 31 Vict. c. 144, policies of life assurance may be legally assigned, and by 31 & 32 Vict. c. 86, a similar relaxation of the law was introduced in favour of marine policies ; and finally, by s. 6 of the Judicature Act, 1873, debts and other legal choses in action may be assigned at law, where the assignment is absolute and not by way of charge only. (o) See Nelson v. Bridport Beav. 609. (1846), 8 Beav. 547; and Allen {q) See Josep/i v. £i/oris (1884), V. Bewsey (1877), 7 Ch. D. 453, 15 Q. B. D. 280; Collyer v. and cases iw/ra. Isaacs (1881), 19 Ch. D. 342; (p) Gilbert v. Overton (1864), nT^d Be Ellenborough, Town/ Law 2 H. & M. 110; and see also v. Bwne, [1903] 1 Ch. 697." Knight v. Bowyer (1857), 23 Express or Declared Trusts. Art. 9. Kevei-sionary interests. Expectancies or possi- bilities. A reversion, whether vested or contingent, is assignable both at law and in equity, and may therefore be made the subject of a trust (?•)• At law, assignments of future acquired property pass nothing. Equity, however, has for some time regarded them as contracts to assign the property when it comes into existence (s) ; and although they are uncertain in their inception, inasmuch as the property is incapable of ascertainment at the date of the assignment, it is nevertheless capable of identification when the subject has come into existence and the assignment becomes enforceable (t), and such assignments are therefore not void for uncertainty. Thus an assignment of all moneys to which the assignor was or might become entitled under any settlement, will, or other document, was held to be good in equity («) ; and a similar conclusion was arrived at by the House of Lords where the property assigned was all book debts due and owing or which might during a named period become due and owing to the assignor (x). Indeed in the early case of Leicis v. Madocks (y) specific performance was ordered of a covenant by the husband in a marriage settlement that he would *' by deed or will convey give devise and assume all and singular his ready money goods chattels and personal estate and effects to and for the use and behoof of the spouses and the survivor of them " upon certain trusts ; and this case was quoted in a recent judgment in the Court of Appeal as being good law (z). An assignment of the copy- right of an unwritten book has also been held to be good (a). Another example is the covenant to settle after- acquired property commonly found in marriage settle- ments {z). As, however, such equitable assignments are really only regarded as contracts, it follows that they require (>•) Shafto V. AcUms (1864), 4 Gift". 492. (s) Wetheredv. Wethe red (1828), 2 Sim. 183 ; and see also Beckley V. Newland (1723), 2 P. Wms. 182; Harwood v. Toole (1812), 2 8im. 192 ; Iliggins v. Hill (1887), 56 L. T. 426 ; Collyer v. Isaacs (1881), 19 Ch. D. 342; Be Clarke, Coombe v. Carter (1887), 36 Ch. D. 348; Tailby V. Official Receiver (1888), 13 App. Cas. 523 ; Hardy v. Fother- gill (1888), 13 App. Cas. 351; and Thomas v. Kelly (1888), 13 App. Cas. 506. (t) See per Lord Herschell in Tailby v. Official Receiver (1888), 13 App. Cas. 523, at p. 530 ; and Holroyd v. Marshall (1862), 10 H. L. Cas. 191. (u) Re Clarke, Coombe y. Carter (1887), 36 Ch. D. 348. {x) Tailby v. Official Receiver, supra. iy) (1810), 17 Ves. 48. (z) Re Reis, Ex parte Clough, [1904] 2 K. B. 769, at p. 783, jjer Stirling, L.J. (a) Ward, Lock & Co. v. Long, [1906] 2 Ch. 550. What Pkoperty the Subject of a Trust. 57 valuable consideration to support them (b) (as to which see Art. 9. supra, Art. 8). If during the intervening period between the assignment Effect of and the acquisition of the property the assignor becomes ^^^kruptcy ^ ... on assign- bankrupt and obtains his discharge, the question arises mentsof whether he is released by the order of discharge from fyZ'^^tT''''^^ the performance of what is merel,y a contract. In CoUi/er v. acquired Isaacs (c) it was held that, as the order of discharge released order of^ the debtor from all his liabilities, it released him from discharge. a so-called assignment of after-acquired projierty made by way of mortgage to secure a debt. But more recently the matter has been elaborately discussed in Re Reis, Ex parte Clonr/li (d), in which it was decided by the Court of Appeal that the true test is whether the contract created by the so-called assignment or the debt for which it is merely' a security is provable in the bankruptcy, or whether the case is one in which specific performance is the appropriate remed3\ In the former case the order of discharge destroys the covenant ; in the latter it does not. This view was subsequently affirmed by the House of Lords (r). The question whether so-called assignments of future Effect of acquired property are binding on the trustee in bankruptcy on°,|^rop^r*tT where the property is acquired daring the bankruptcy is not so acquired easy. In Wilmot v. Alton (/) it was answered in the negative bankr^iptcy on the ground that any property acquired during the bank- ruptcy is not acquired by the bankrupt, but (by operation of law) by the trustee in bankruptcy. This case was, however, decided before Re Reis, Ex parte Clougli (supra), and it seems questionable whether it is consistent wdth the principles there laid down. Anyhow it is clear that an assignment of future acquired property falling within the class of contracts capable of specific performance would bind property acquired by a bankrupt after Ids discharge (g). Sub-Parageaph (a). Salaries or pensions given for enabling persons to perform Property duties connected with the public service, or to enable them ^y^reillon of to be in a fit state of preparation to perform those duties, are public policy. (h) Be Ellenborougli, Townj Q. B. D. 193. Law V. Burne, [1903] 1 Cli. 697. (e) S. C. {sub nom. Clough v. (c) (1881) 19 Ch. D. 342. Samuel), [1905] A. C. 442. (d) [1904] 2 K. B. 769 ; and (/) [1897] 1 Q. B. 17 ; Ex see also Be Bastable, Ex 'parte farte Nicliols (1883), 22 Ch. D. The Trustee, [1901] 2 K. B. at 782. p. 525 ; and Be Davis & Co., (g) Be Beis, Ex parte Clough, Ex parte BawUngs (1888), 22 supra, an(\.Cloiighv.8amuel,supra. 58 Art. 9. Property inalienable by statute. Pay, pen- sions, etc., of military and naval officers. Express or Declared Trusts. inalienable ; but otherwise not. In Grcnfdl v. Dean and Canons of Windsor (Ji), a canon of Windsor had assigned the canonr}^ and the profits to the plaintiff to secure a sum of money. There was no cure of souls, and the only duties were residence within the castle and attendance in the chapel for twenty-one days a year. In giving judgment for the plaintiff and upholding the assignment the Master of the Eolls said : "If he (the canon) had made out that the duty to be performed by him was a public duty, or in any way connected with the public service, I should have thought it right to attend very seriously to that argument, because there are various cases in which public duties are concerned in which it may be against public policy that the income arising from the performance of those duties should be assigned ; and for this simple reason, because the public is interested not only in the performance from time to time of the duties, but also in the fit state of preparation of the party having to perform them. Such is the reason in the cases of half -pay, where there is a sort of retainer, and where the pay- ments which are made to oJSicers from time to time are the means by which the}^ — being liable to be called into public service — are enabled to keep themselves in a state of prepara- tion for performing their duties." So, in Davis v. Duke of Marlboroiifili (i), the Lord Chan- cellor said : " A pension for past services may be aliened, but a pension for supporting the grantee in the performance of future duties is inalienable." The emoluments of ecclesiastical livings were expressly made inalienable by 13 Eliz. c. 20 and 57 Geo. 3, c. 99. Some classes of property are expressly made inalienable by statute. Thus, in Davis v. Duke of Marlhorongh (i), a pension was granted by statute to the duke and his successors in the title " for the more honourable support of the dignities." It was held that, the object of Parliament being that "it should be kej^t in mind that it was for a memento and a per- petual memorial of national gratitude for public services," it was not alienable. Pay, pensions, relief, or allowance payable to any officer of his Majesty's forces, or to his widow, or to any person on the compassionate list, are also made unassignable by statute 0). So also are the pay of seamen in the navy(/t), {h) (1840) 2 Beav. 544. (t) (1818) 1 Swans. 74. (;■) 47 Geo. 3, sess. 2, c. 25, ss. 1—14. [k) 1 Geo. 2, c. 14, s. 7. What Property the Subject of a Trust. 59 and half-pay in the marme forces (I) ; but it would seem that -A-rt. 9. the right to pay actually due at the date of the assignment is assignable ()ii). Salaries or pensions, not given in respect of public services, are freely assignable («). With regard to the property of married women (whether restrained from anticipation or not) such inability to create a trust of it as still exists arises rather from the status of the settlor herself than from the nature of the property, and is therefore treated of infra, Chapter III., under the head of " Who may be a Settlor." Sub-Paragraph (b). Where, with respect to copyhold lands, there is no custom Trust incon- to create an estate tail in the manor of which they are holden, f^^^^^ ^^^^ an equitable estate tail cannot be created by way of trust : for that would be inconsistent with the tenure — in other words, with the conditions — under which the lands are holden (o). But, on the other hand, where a trust is not inconsistent with the custom of a manor, it will be valid, although legal estates to the same extent could not be created (p). So, where a marriage settlement contained a covenant to settle after-acquired property, it was held to be inapplicable to lands in Jersey, where trusts of this character are not recognised and all trans- fers of land are required to be made for adequate pecuniary consideration (q). The same principle holds in the case of lands situated abroad ; Trusts of even if such lands are capable of being settled by way of special ^^^^^^ ^^ - trust at all, a point which is not free from doubt (r). As to the validity of English trusts of personal estate created by English women about to marry (and therefore to become) foreigners, and which are void according to the law of the matri- monial domicile, the reader is referred to the next Article. {I) llGeo. 4&1 WiU. 4, c. 20, s. 47. (m) 11 Geo. 4 & 1 WiU. 4, c. 20, s. 54. {n) Feistel v. King's College (1847), 10 Beav. 491; and for other cases bearing on assign- ments of salaries and pensions, see Stone v. Lidderdale (1795), 2 Anst. 533 ; Arbuthnot v. Norton (1846), 5 Moo. P. C. 219 ; Carew V. Cooper (1864), 10 Jur. (n. s.) 429 ; Alexander v. Duhe of Wellington (1831), 2 Russ. & Myl. 35. (o) Allen V. Beivsey (1877), 7 Ch. D. at p. 466. (p) Ibid. Iq) Be Pearse's Settlement, Pearse v. Pearse, [1909] 1 Ch. 304 ; and see also Martin v. 3IaHin (1831), 2 Russ. & Myl. 507 (land in Demerara). (/•) Glover v. StrotJioff (1786), 2 Bro. C. C. 33 ; Nelson v. Bridport (1846), 8 Beav. 547 ; 3IaHin v. MaHin (1831), 2 Russ. & Myl. 507. 60 Express or Declared Trusts. Art. 10. Art. 10. — The Legality of the Expressed Object of the — Trust. (1) A trust created for a purpose illegal by English law is void (.s). Private trusts of this character mostly fall under one of the following classes : (a) trusts for the accumulation (Y) or the tying up of property for an unlawful period ; (b) trusts by which it is sought to create estates in personalty that are only allowed with regard to realty, or to alter the devolution of property in the event of intestacy (w) ; (c) trusts providing for the continued enjoyment of the trust property by an insolvent beneficiary free from the rights of creditors (v) ; (d) trusts restricting the power of alienation of the beneficiaries' interest [x) ; (e) trusts promoting or encouraging immorality (//), fraud, or dishonesty ; (f) trusts tending to the general restraint of marriage (^') (unless of a second marriage) (^O- (2) An illegal trust will not vitiate other provisions in the settlement unconnected with the illegal pur- pose (/)). (s) Att.-Gen. v. Sands (1668), {x) Floyer v. Banlces (1869), Hard. 488 ; Pawlett v. Att.-Gen. L. K. 8 Eq. 115 ; Sykes v. Sykes (1667), Hard. 465; Burgess v. (1871), L. K. 13 Eq. 56. Wheate (1759), 1 Eden, 177; (y) Blodwell v. Edwards {1596), Duke of Norfolk's Case (1678), 3 Cro. Eliz. 509. Cli. Cas. 1. As to trusts void {z) See per Wilmot, L.C.J., in for attempting to alter the law of Low v. Peers, Wilmot's Opinions devolution of an absolute eqmt- and Judgments, at p. 375 ; 3Ior- able gift, see Be Dixon, Dixon ley v. Bennoldson (1843), 2 Hare, V. Charlesworth, [1903] 2 Ch. 570; Lloyd v. Lloyd (1852), 2 458. Sim. (n. s.) 255. (t) Cadell V. Palmer (1833), (a) Marples v. Bainhridge 1 CI. & F. 372, Tud. Lead. Cas. (1816), 1 Madd. 590; Lloyd v. Conv. (ed. 4), 578 ; Griffith v. Lloi/d, supra ; Craven v. Brady Vere (1803), 9 Ves. 127, Tud. (1869), L. K. 4 Ch. 296 ; and as Lead. Cas. Conv. (ed. 4), 618. to second marriage of a man, (m) Be Walker, Mackintosh- Allen v. Jackson (1875), 1 Ch. D. Walker v. Walker, [1908] 2 Ch. 399. 705. (b) H. V. W. (1857), 3 Kay & {v) Graves v. Dolphin (1826), J. 382; Cartwright v. Cariwright 1 Sim. 66; Snowdon v. Dales (1853), 3 De G. M. & G. 982; (1834), 6 Sim. 524; Brandon v. Merryweather v. Jones (1864), 4 Eo6m80« (1811), 18 Ves. 429. Gifif. 509; Cocksedge v. Cock- Legality of Expressed Object of the Trust. 61 (3) Trusts of personal estate, or of English land, Art. 10. are not void by our law, although prohibited by the law of the domicile of the settlor (c) ; provided that by that law he had capacity to contract (<:/). (4) A trust to perform certain acts which are of no benefit to any human being is not enforceable (c), unless it is a charitable trust (/). But it is not void unless it transgresses the rule against perpetui- ties (r/), or is contrary to public policy (Ji) ; and the trustee may therefore perform it if he wishes (g). Parageaph (1) (a). It is against public policy that property should be settled Perpetuities. on special trusts for an indefinite period, so as to prevent it being freely dealt with ; and, consequently, the power of doing so has been curtailed by a rule known as the rule against perpetuities. That rule is, that every future limitation, (whether by way of executory devise or trust), of real or per- sonal property, the vestinri of ivMch absolutely as to i^ersonalty, or in fee or tail as to realty, is postponed beyond lives in being and twenty-one years afterwards (with a further period for gesta- tion where it exists), is void(i). This rule does not, however, sedgre (1844), 14 Sim. 244; Evers lode (1872), L. R. 14 Eq. 45; V. Ghallis (1859), 7 H. L. Cas. Dawson v. Small (1874), L. R. 531; Watson v. Young (1885), 18 Eq. 114; and /jer North, J., 28 Ch. D. 436 ; Be Harvey, Peek in Be Dean, Coojier-Deati v. V. Savory (1888), 39 Ch. D. 289 ; Stevens (1889), 41 Ch. D. 552. and Be Benee, Smith v. Bence, (/) Trusts may be charitable, [1891] 3 Ch. 242. although not directly benefiting (c) See Be Megret, Tweedie v. human beings, e.g., trusts for Maunder, [1901] 1 Ch. 547 ; Be providing a home for lost dogs, Hernando, Hernando v. Sawtell trusts for the protection of (1884), 27 Ch. D. 284 ; Be Price, animals liable to vivisection {Be Tomlin v. Latter, [1900] 1 Ch. Douglas, Obert v. Barrow (1887), 442 ; Pouey v. Hordern, [1900] 35 Ch. D. 472), and trusts for 1 Ch. 492 ; Be Bald, Bald v. Bald repairing a church or church- {1891),16L.T. 4:62; Be Bankes, yard (Be Vaughan, Vaughan Beynolds v. Ellis, [1902] 2 Ch. v. Thomas (1886), 33 Ch. D. 333. 187). (d) Viditz v. O^Hagan, [1900] (g) Be Dean, Cooper-Dean v. 2 Ch. 87. Stevens, ubi stipra, at p. 557. (e) Be Bickard, Bickard v. {h) Brown v. Burdett (1882), Bobson (1862), 31 Beav. 244 ; 21 Ch. D. 667. Lloyd V. Lloijd (1852), 2 Sim. (i) Cadell v. Palmer (1833), (N. s.) 255 ; Thomson v. Shake- 1 CI. & F. 372, Tud. Lead. Cas. speare (1859), Johns. 612 ; Fow- Conv. (ed. 4), 578 ; London and ler V. Fowler (1864), 33 Beav. South Western Bail. Co. \. Gomm 616; Fisk v. Att.-Gen. (1867), (1882), 20 Ch. D. 562, appUed in L. R. 4 Eq. 521 ; Hunter v. Bui- Edwards v. Edwards, [1909] A. C. 62 Express or Declared Trusts. Art. 10. The test of whether a trust is void for remoteness is possible, not actual, events. Property need not vest in possession within the prescribed period so long as it is vested in interest. apply to trusts following estates tail, as they can be barred (k) ; nor to charitable bequests (/) ; nor to i:)arliamentary grants for distinguished services ; nor to trusts for the accumulation of income for payment of the settlor's debts (m). It is impossible within the scope of this work to go into the numerous ques- tions which arise under this rule, for the elucidation of which the reader is referred to Mr. Lewis's or Mr. Gray's learned Treatises on Perpetuities. One or two salient points must, however, be adverted to. First, then, in considering whether limitations or trusts offend against the rule (or are in legal language " too remote "), possible events are to be considered. If the trust may in any event be too remote, it will be void, notwithstanding that in the events which have actually happened it would have vested within the prescribed period. In short, to be good the limitation must be one of which, at its creation, it could be jiredicted that it must necessarily vest within the prescribed period (h). It follows (and this must never be forgotten by any one who undertakes to prepare such documents) that a trust in a marriage settlement for such of the children of the marriage as shall attain the age of twenty-two 3'ears, or any greater age, must necessarily be void for remoteness. For both husband and wife may die lea^'ing a child under one 3'ear of age who could not attain a vested interest within twenty-one years. The author has known of a shocking case where the wife's money was ignorantly settled in this way, with the result that the trusts for issue were declared void and the wife's fortune resulted at her death to the husband jure mariti, and he promptly settled it on a new wife. Secondly, the rule does not require that the trust property shall vest absolutely in possession within the prescribed period. It suffices that it must necessarily vest absolutely in interest in some person or persons, so that one can say with certainty at some time within that period that A. as life tenant and B. as absolute owner in remainder can collectively deal with the property. Thus in the not uncommon case of a trust for A. for life, with remainder for any woman who may become his widow 275; and Bee also Pearks X. 3Iose- ley (1880), 5 App. Cas. 714. (A) Eeasman v. Pearce (1871), L. R. 7 Ch. 275. (I) Christ's Uospital v. Grain- ger (18^9), 1 Mac. & G. 460. (m) Lord Southampton v. Lord Hertford (1813), 2 Ves. & B. 54, 65 ; Bateman v. Hotchkin (1847), 10 Beav. 426. (n) Dimgannon v. Smith (1846), 12 CI. & F. 546: Smith V. Smith {ISIO), L. R. 5 Ch. 342 ; Re Handcock's Trusts (1889), 23 L. R. Ir. 34. As to tiu.sts to take efifect in remainder upon the failure of such trusts, see infra, p. 73 et seq. Legality of Expressed Object of the Trust. 63 for life, with remainder for his children who shall attain twenty- Art. 10. one the whole trust is perfectly good(o). For although it is possible that the woman who may become his widow is not born at the date when the settlement first comes into operation, yet one will necessarily be able at the end of twenty-one years after the death of A. to say that his widow (if any) and his children who have attained twenty-one are together the absolute owners of the property. On the other indefinite hand, all the intermediate limited interests must begin within |™oi^e^ the limit allowed by the rule ; for otherwise you might not be able to ascertain all vested interests within that limit. Thus, where there is an indefinite discretionary trust to apply the income for the benefit of all or any one or more of a class of persons (some of whom may be unborn) during their lives or the life of the survivor of them, it is obvious that their beneficial interests might be varied from time to time so that the persons collectively entitled might not be definitely ascertained within the period allowed by the rule, and in such case the trust will be bad although the ultimate remainderman might be certainly ascertainable within the period (2>). The question how far a trust which is void for remoteness invalidates other trusts connected with it is discussed infra, p. 73 et seq. Thirdly, with regard to the application of the rule to powers of Application appointment. Where a person has a general power to appoint °* the rule a trust fund to such persons as he may think fit, the rule has created under no application beyond that which it would have to a disposi- po"'^.''^ o^ tion by an absolute owner. But where, under a settlement or will, a person has a limited or special power (e.g., the power to appoint among issue almost universal in marriage settlements) it is different. In such cases, for the purposes of the rule, the effect of the appointment at the date when it comes into operation, and not its actual wording (q), is considered as having been written into the settlement. If j udged by that standard it would have been void for remoteness as an original trust, it will l)e equally void for remoteness as an appointment. An excellent example is aftbrded by the case of Re Thomjyson, Thnmjiaon v. TluwipHon. There the (o) Be Hargreaves, Midgley v. [1906] 1 Ch. 624, dissenting from Tatley (1890), 43 Ch. D. at p. 405 ; Be Wise, Jackson v. Parrott, Be Boberts, Bepington v. BobeHs- [1896] 1 Ch. 281 ; and see also Gnwen (1881), 19 Ch. D. 520; Be Swain, Phillips v. Poole Evans v. Walker (1876), 3 Ch. D. (1908), 99 L. T. 604. 211. (q) Be Thompson, Thompson (p) Be Blew, Blew v. Gunner, v. Thompson,' [ld06] 2 Ch. 199. 64 Express or Declared Trusts. Art. 10. Application of rule where no successive interests created. original will gave a life interest to the testator's widow, w'ith remainder upon such trusts for testator's brother T. C. and his issue as the widow should appoint. The widow by her will appointed in favour of T. C. for life with remainder to his children who being born in her lifetime should attain twentj''- five, or being born after her death should attain twenty-one. At her death (when the appointment first came into operation) all T. C.'s then existing children were twentj'-five. It was contended that if the u-orch of the appointment had been written into the husband's will the trusts in favour of the children of T. C. w^ho should attain twenty-five would have been void for remoteness. But Joyce, J., said : " When it is stated that the test by which the validity of such a gift must be tried is to read it as inserted in the deed or will creating the power in place of the power, it is not meant that the precise language of the instrument exercising the power is to be read into the instru- ment creating it ... . Inasmuch, therefore, as the will of the widow was so made that the persons who according to the true construction of such will were to take under it and the shares they were to take would necessarily^ be ascertained and their interests vest not later than the expiration of twenty -one years from the death of T. C, who was alive at the death of the testator, the appointment was perfectly valid." Fourthly : Trusts may be void for remoteness although creating no interests in succession, if the effect of them might be to tie up property beyond the prescribed limits. For instance, a trust to apply a competent part of the income of a fund for keeping a tomb in repair is void unless limited to lives in being and twenty-one years after the death of the survivor (r). It is therefore common in wills by which such trusts are sought to be created to limit them to the lives of the existing issue of the late Queen Victoria and twenty-one years after the death of the survivor of them. As the deaths of that distinguished class can be readily verified, such a limitation is not void for uncertainty, although a more audacious attempt to extend the period to the life of the survivor of all persons living at the date when the settlement took efiect and twenty-one years after has been held void on the ground that it would be impossible to identify the survivor (s). To what extent such trusts are valid apart from the rule against perpetuities will be considered later (p. 76 et seq). So, again, a trust of real estate forbidding a sale until the (?) Re Dean, Cooper-Dean v. Stevens, (I88d) ilCh.D., at p. 557. (s) Be Moore, Prior v. Moore, [lUOlJ 1 Ch. 936. Legality of Expressed Object of the Trust. 65 happening of an event (e.g., when the settlor's gravel pits are Art. 10. worked out) which might not happen within the allowed period ■ ■ is void (t). It must not, however, be inferred that a power of or Power of or trust for sale not expressly Hmited in point of duration is 5j"ot1in°[ted'^ necessarily void; for there is a presumption that it was induration, intended to cease when all beneficial interests should have vested absolutely in possession in persons sui juris. Even where it can be gathered that the settlor intended it to be exercised after that for purposes of division, it can still be exercised within the period allowed by the rule(»). But where no successive interests are given and the property vests ab- solutely in persons sui juris directly the settlement takes effect, and no intention can be gathered that a power of sale was merely given for faciUty of division, it will be void for remoteness (r). However, although the trust for, or power of, sale might be void, it is looked upon as mere machinery and will not avoid the trusts in favour of the beneficiaries if they take vested interests within the prescribed period (x). It is not unusual in the investigation of titles to real estate to Trusts for _ „ , . ■, • n • j_i J. i. indemnifying find trusts of one estate created for nidemnifynig another estate against against a perpetual chief rent. It might seem at first sight that P^^HJ^^^'^;^]. such trusts would offend against the rule, but it has been held by the Irish Courts (y) that they are good, and it is apprehended rightly ; for if a perpetual chief rent on estates A. and B. is good, there seems to be no reason why the perpetual liability of A. to pay the whole in exoneration of B. should be bad. There is a collateral rule which prohibits a contingent Common law remainder being limited in favour of the unborn child of an doubif^'"^ unborn child ; but this rule is not applicable to special trusts, possibilities. or to executory limitations {z), although it is applicable to pure equitable remainders (a) . At common law, the power of tying up money so as to TheThellus- accumulate at compound interest, was co-extensive with the period for which property might be tied up under the rule {t) Re Wood, Tullett v. Colville, Levp.r, [1903] 1 Cli. 565 ; Qoodier [1894] 3 Ch. 381 ; Goodier v. v. Edmunds, [1893] 3 Cli. 455 ; Edmunds, [1893] 3 Ch. 455 ; Ee Be Daveron, Bowen v. Churchill, Daveron, Bowen v. Churchill, [1893] 3 Ch. 421. [1893] 3 Ch. 421. {y) Massy v. O'Dell (1859), 10 (u) Be Lord 8udeley and Baines Ir. "Ch. K. 22. See also Convey- & Co., [1894] 1 Ch. 334. ancing Act, 1911 (1 & 2 Geo. V. (v) Be Dyson and Fowke, c. 37) sect. 6, which seems to [1896] 2 Ch. 720 ; Be Jump, confirm this view. Galloway v. Hope, [1903] 1 Ch. (s) Be Bowles, Amedroz v. 1 29 ; and see Be Kaye and Hoyle's Bowles, [1902] 2 Ch. 650. Contract {1909), 53 Sol. J. 520. (a) Be Nash, Cook v. Frede- {oc) Be Appleby, Walker v. rick, [1910] 1 Ch. 1. T, F son Act. ()0 Express or Declared Trusts. Art. 10. against perpetuities. However, the late Mr. Thellusson having, hy his will, directed his property to he accmnnlated during the lives of all his descendants living at his death {h), the attention of Parliament was called to the unreasonahle nature of such a power. Accordingly, hy the statute 39 A: 40 Geo. 3, e. 98 (connnonly known as the Thellusson Act), the period allowed hy the common law for accumulations was further restricted to the life or lives of the grantor or grantors, settlor or settlors ; or (not and) twenty-one years from the death of an}' grantor, settlor, devisor, or testator ; or during the minorities of any persons who shall he living, or <■/< centre sa mere, at the time of the death of the grantor, settlor, devisor, or testator ; or during the minorities of any persons who, under the instrument directing the accunuilation. would for the time heing, if of full age, he entitled to the income directed to he accumulated. It has been recently held by Neville, J., that this last period is not restricted to the minority of persons in existence at the time when the settlement came into force [e). although the statute does not permit the accumulations in that case to be made during the period before the birth of that person (d). The statute, however, does not extend to any provision for payment of debts, nor for raising portions for the children of the settlor, grantor, or devisor, or of any person taking any interest under the instrument directing such accumulations ; nor to any direction as to the produce of timber upon any lands ; nor to a trust or direction for keeping property in repair («) : nor to a direction to apply income for keeping up a leasehold policy of insurance {/). It will be perceived, therefore, that the maximum period allowed for accunuilation is twenty-one years, viz., either twent3'-one years from the death of the testator or the twenty- one years constituting the maximum minority of anj- person in existence at his death, or {se))d)le) if there be an intervening life estate, the twenty-one years constituting the maximum minority of the person or persons who would if of full age be entitled to the income directed to be accumulated. Acoumuia- In 1892 the period allowed by the Thellusson Act was tiuns for the fm-tin.^- restricted, where the accumulation is to be made either purpose or puri'h;isiii_>: 1;>"(1. (^) TheUiisgon v. Woodford {d) Ellis v. Maxwell (1S41), 3 (1805). 11 Vos. 112. Bciiv. at p. 596. {c) L'e Cattell. Cattellv. Cattell, (f) Vine v. Ealeigh, [1891] 2 [1907] 1 Ch. 567: disscutmu- Ch. 13: He Mason, Mason v. horn Ilaleif v. Bannister (1819^ Mason. [1891] 3 Oh. 467. 4 MacUl. 275, ami Jaijoer v. (/) Fe Gardiner, Gardiner v. Ja' stirjics of such of them as shall die under age, iclikli issue shall attain tivcnti/-one, the whole of the limitations after the life estate of A. are void. For although the children must attain twenty-one within the prescribed period, the issue of deceased children may not ; and the gift being to a class as a whole, the one cannot be separated from the other (u). But where there are alternative trusts (A. and B.), A. being illegal and B. legal ; then if the contingency happens on which B. was to take effect it will not be affected by the illegality of A. {x). For by giving effect to trust B. the courts would in no way aid the illegality intended by trust A., nor (the contin- gency having happened on which B. was to come into force) would the intentions of the settlor be disregarded. If, how- ever, the contingency on which B. was to come into operation should never occur, then, of course, the whole instrument would be void ; for A. is void for illegality, and B. can never take effect because the contingency contemplated by the settlor has not happened. So, again, where a trust for sale is void for remoteness but the beneficial interests in the proceeds are vested absolutely within the period limited by the rule, the latter will be good although the former may be bad (//). It might perhaps be thought that, by analogy to the action of the courts with regard to trusts which transgress the common law period, a trust which endeavoured to go beyond the period allowed by the Thellusson Act for accumulations (see supra, p. 65) would be wholly void ; but this is not so. The statute is merely ijrohihitorii of accumulations going beyond the period prescribed by it, and, being in derogation of a common law right, is construed strictly. Consequently, as accumulations which exceed that period, but are within the common law period, are not contrary to public policy as defined by common law, such a trust is good _;:>;•() tanto ,- but, of course, if it exceeds the common law period, it is void in toto (z). (u) Pearks v. Moseley (1880), Be Abbott, Peacock v. Frigout, 5 App. Cas. 714. {x) Evers v. Challis (1859), 7 H. L. Cas. 531 ; Watson v. Young (188 5), 28 Ch. D. 436; Be Uarvey, Peek V. Savory (1888), 39 Ch. 1). 289 ; Be Pence, Smith v. Pence, [1891] 3 Ch. 242; and see also [1893] 1 Ch. 54. (y) Be Appleby, Walker v. Lever, [1903] 1 C'h. 565. (z) See Griffith v. Vere (1803), 9 Ves. 127, Tud. Lead. Cas. Conv. (4th ed.) 618, and cases there cited. Legality of Expressed Object of the Trust. 75 On similar principles, remainders to take effect after the Art. 10. period prescribed bv the settlement for the accumulation of income are not rendered void on the ground that the pre- i-e^a^^'ier scribed period exceeds the statutory period. All that the after illegal statute does is to prohibit accniiudations beyond a certain accumulate, period. When that period comes to an end the accumulations stop, and the fact of the subsequent remainders being allowed in no way tends to a breach of the statutory rule. On the other hand, such remainders are not accelerated (for that would be contrary to the settlor's intentions) ; but there is a resulting trust in favour of the settlor or his representatives during the time which elapses between the expiration of the statutory period and the period prescribed by the settlement. Paeagraph (3). "^'here a trust of personal estate is intended to take effect Trusts illegal according to the law of England, or where there is a trust of ^\}!^^', °^ " . o ' settlor s English land, it will be vahd and enforceable by our courts, domicile, notwithstanding that such trusts are prohibited by the law of the domicile of the settlor. Thus, on the marriage of an Englishwoman with a domiciled Frenchman, personal property was settled in English form with English trustees, upon trust for the lady for life, with remainder as she might by will appoint, with remainder in default of appointment to her absolutely. On her marriage she became a domiciled French- woman, and by French law her power of testamentary disposi- tion was very limited : — Held, nevertheless, that the settled property passed under her will (a). But although this is so, it must be remembered that the Capacity capaciUi of a person to enter into a binding contract or settle- ^^^^^^^^^^ ment is governed by the law of his or her domicile. Thus, an on law of English female infant, on her marriage with an Austrian, pur- '^^^^^ ®- ported to make a binding settlement. By English law, if she had not repudiated this on or shortly after attaining twenty- one, she would have been boimd by it {h). But by the law of the matrimonial domicile not only was this not so, but she was incapahh: of cvrn ratifying such a contract. Under these circumstances it was held that, although the trust was not illegal in its inception, it had never become binding : because according to the law of her domicile the lady had never attained to a contractual capacity (c). (a) Be Megret, Ticeedif v. (6) Edxcards v. Carter, [1893] Maunder, [1901] 1 Ch. 547 ; and A. C. 360. see also cases cited supra, p. 61, (c) Tidiiz v. O'Hagan, [1900] notes (c) and {d). 2 Ch. 87. 76 Express or Declared Trusts. Art. 10. Warning as to settle- ments by English- women about to many foreigners. Practitioners must, moreover, be warned that, in advising English girls of fortiuie ^Yho are about to marr}- foreigners, the trustees should be of English domicile ; and, indeed, it is well to provide that none but English domiciled persons should ever be appointed new trustees. Moreover, the property should never be invested in the country of the husband's domicile ; otherwise it is not improbable that the foreign courts will order it to be transferred to the husband. The reason of this is that trusts (or substitutions, as they are called) have 1)een abolished in most foreign countries, and, as the foreign judges appear to be quite incapable of grasping our idea of dual ownership (the legal ownership of the trustee and the equitable ownership of the l^eneficiaries), they incon- tinently order the trust property (if found within their juris- diction) to be handed over to the beneficiary for the time being entitled to the income, regarding the trustees merely as mandatories or agents for them, and not as legal owners. Even where an Englishwoman is about to marry a person domiciled here, it must be remembered that they may subse- quently change their domicile. Thus, if they were to reside permanently in Scotland, the Scottish law would apply in the absence of an English settlement ; and, as the Scottish Married Women's Property Act, 1881 (44 & 45 Yict. c. 21), only applies where the husband is domiciled in Scotland at the date uf the marriafjc, he would acquire marital rights over his wife's personal estate which were never contemplated when the parties married. The moral to be derived from all this is that an English settlement with English trustees is alwa^'S desirable on the marriage of an Englishwoman. Trusts to raise aud keep in repair tombs. Paragraph (4). Although it would seem that the court could not oiforcc a trust for applying money in the erection of a tomb or monu- ment (inasmuch as there would be no human beneficiar}^ to set the court in motion), it has been said that such trusts are not void, but merely duties of imperfect obligation ; and that the trustees may safely spend the money on the prescribed oljject if they please (d). The judge added that he knew of nothing to prevent a gift of a sum of money to trustees, upon trust to apply it for the repair of such a monument, if the donor took care to limit the time for which the trust was to last, so as to provide for its cesser within the limits of the rule (d) Per North, .1., Re Bean, Cooper-Dean v. Stevens (1889), 41 Ch. D. at p. 557. Legality of Expressed Object of the Trust. 77 against perpetuities. Where, however, a testator creates a Art. 10. trust for the repair of tombs or monuments, without Hmiting its continuance in accordance with such rule, it will be absolutely void for remoteness (e). On the other hand, a similar indefinite trust for keeping a church or church- yard in repair would be valid, as it ^v'Ould be considered a charitable trust in favour of the congregation of the church, and the rule against perpetuities does not apply to charitable trusts (./'). It has also been recently decided that a testator may make a gift to a charit}' conditionally upon his tomb being kept in repair, with a gift over to another charity in the event of the tomb being allowed to fall into disrepair (r/). The American courts have held that a trust to keep in American repair for ever the tombs of a class (e.g., the testator's family) ^^^" is a charitable trust and valid, although a similar trust to keep up the tomb of an individual is not ; but the distinction seems somewhat fantastic (//). On the same principles, a trust, limited in point of time Trusts for within the rule against j^erpetuities, to apply money for the benefit keeping specified pet animals in comfort during their lives, horses, 'et«. is perfectly legal, although no person could enforce it (/). Moreover, dogs and horses and other domestic animals are considered so useful to man, that it is settled that a charitable trust of undefined continuance may be established in their favour (A-). Chitty, J., also held that antivivisection societies are charities, on the ground that their ohject (whether rightly or wrongly) was the prevention of cruelty to animals useful to man {I). On the other hand, where directions are given to trustees Capricious to manage property in a manner absolutely capricious, and latfn^totho without either human interest or benefit to any living being, management (e) Be Vaughan, Vaughan v. {h) Swasey v. American Bible obiects Thomas (1886), 33 Cli. D. 187. cannot be enforced nnless evidenced by writing signed by the settlor, or person who contracts to settle, or (in the case of a contract to settle) by his agent lawfully authorised, showing clearly what the trust or intended trust is, or referring to some other document which does so {q). Saye as above, all other trusts inter ricos may be created verbally (r). (i») Brovtn v. Burdett (1882). (1877), 7 Ch. D. 60; Tierney t. 21 Ch. D. 667. Wood (1S.>4), 19 Beav. 330; (n) Kelly v. yiekoh (1891), 17 Budkin v. Dotman (1876), 35 E. I. 306. L- T. 791. (o) Statute of Frauds, 29 (r) WFadden v. Jenlyns Car. 2, c. 3, s. 7. Land includes (1842), 1 Ph. 153 : Hawkins v. copyholds (Withers v. Withers Gtirdin^r (1854), 2 Sm. Ac G-. 441 : (17-52), Ambl. 152) and lease- Benboic v. Toncnsend (1833), 1 holds (Forster v. Hale (1798), 3 MvL i K. 5*J6 : J/iddZ«f \V. K. 7. JJut a ddfuiiieiit admitted to Probate, iiiu.-jt be taken to be a testamentary docuinent, and, therefore, although it contains no words of gift, they must be inferred {Re JUtirdnec, lUurancc v. Ellis, [I'JiUj 2 Ch. 41!)). Necessity of Writing and Signature. 83 as the law stood, if a trust was not declared by a testator when Art. 11. his will was made, then, in order to make the trust binding, it was essential that it should be conimunicatcd to tlie derisce or legatee in the testator's lifetime, and that lie sJioidd aceept that partieular trust. A devisee or legatee could not, by accepting an indefinite trust of this kind, enable a testator to make an unattested codicil. Accordingly it was declared that the trust was for the next of kin. In reading this case, the reader must bear in mind that Mr. Carritt admitted that he knew that he was not meant to take beneficiall}', and, there- fore, of course, it would have been personal fraud on his part if he had claimed to do so. If, however, he had not known the non-beneficial nature of the bequest, the subsequent letters of the testator would not have been sufficient to have deprived Mr. Carritt of the beneficial interest, and consequently neither Mrs. Brown nor the next of kin would have taken anything. Whether, however, Mr. Carritt had or had not known, when the will was made, that he was only intended to take as trustee, yet if the testator had subsequentl}' eoni- municated to him that he was not to take beneficially, and had either declared specific trusts of the property, or had simply said that he had not yet made up his mind upon what trusts it should be held, and if Mr. Carritt had rxpresshj assented to aet as trustee, then, as his assent would have operated to induce the testator not to alter his will, Mr. Carritt would have been bound to take the property as trustee simply, and to carry out the testator's i)itentioii (s) (as in the first illustration to paragrajDh (4), infra), or to hold the property under a resulting trust, if no intention had been declared. A testator gave his residuar}' real and personal estate upon trust for sale, and upon further trust to pay the proceeds to his friends A. and B. in equal shares. And he declared that he bequeathed such proceeds " to the said A. and B., their executors, administrators and assigns, absolutely, in the full confidence that they would carry out his wishes in respect thereof." A. and B. survived the testator, but died before the distribution of the estate. On these facts, it was held by Chitty, J., that parol evidence that the testator had com- municated his wishes verbally to one of the two legatees was (s) Be Fleetwood, Sidgreaves v. 1 Ir. R. 73 ; but distinguish Be Brewer (1880), 15 Cli.' D. 594; Uetleij, Hcileij v. Ueiley, [1902] Be Ruxtable. Huxtable v. Craw- 2 Cli. 866, where a verbal power ftird, [1902] 2 Ch. 793 ; (as distinguished from a verbal Sullivan v. Sullivan, [1903] 1 trad) was held void. lv.'R.n:i ; GeddisY. Semple,[ld03] g2 84 Express ok Declared Trusts. Art. 11. inadmissible, and that as (apart from such evidence) the pre- catory words were not sufficient to create a trust, A. and B. took the proceeds of the residue absohitel}- {t). Paragraph (3). Fraud an But where a father is induced not to make a will by state- to'iule.'^" ments of his heir presumptive that the latter would make suitable provision for his immediate relatives, the court con- siders that to be a fraud, and, notwithstanding the statute, will oblige the heir to make a provision in conformity with his implied obligation (ii). For, as was said by Lord Westbury, in McConnich v. Grorjau {x), " the court has, from a very early period, decided, that even an Act of Parliament shall not be used as an instrument of fraud ; and that equity will fasten upon the individual who gets a title under that Act, and impose upon him a personal obligation, because he applies the Act as an instrument for accomj^lishing a fraud. In this way a court of equit}' has dealt with the Statute of Frauds, and in this manner also it deals with the Statute of Wills. And if an individual on his death-bed, or at any other time, is persuaded by his heir-at-law or next of kin to abstain from making a will, or if the same individual, having made a will, communi- cates the disposition to the person on the face of the will benefited by that disposition, but at the same time say^s to that individual that he has a purpose to answer which he has not expressed in the will, but which he depends upon the disponee (i) Be Bovcning's Estate {\%%%), fraudulently induced either to 60 L. T. 140; and see also Be make or to abstain irom revoking iCtn^'s i-'stoie (1888), 21 L. R. Ir. a will. In the former case the 273, and (S'ma?-fv. Prt), and cannot be set aside under this Act unless the l)eneliciaries have acted in bad faith (q). (n) Ex imrte Jfuj-ttihle, lie Conibeer (187(5), 2 ("h. 1). .54. Sec alfio lie J'(irn/, Ex jxtrie Sahtinnn, [1904] l' K. B. 129. But jjrciiiiuin.s paid in roKpect of K<'tthi coid as against Settlor's Creditors under 13 EJiz. c. 5. (1) The last article relates exclusively to cases where the settlor has become bankrupt or liquidated his affairs bv arrangement under the Bankruptcy Act. But quite apart from bankruptcy a settlement of hereditaments, corporeal or incorporeal, or of such kinds of personal property as are capable of being taken in execution, is void as against existing and future creditors of the settlor if it be executed with intent to defeat or delay their claims (x). (2) The court must, however, be satisfied, on the whole of the facts and evidence, that there was an actual intention to defeat or delay creditors ; with the possible exception, that where the inevitable result of the settlement at its date must have been to defeat or delay creditors the court will declare it void even although it considers that no actual intention to defeat or delay existed (ij). (3) But settlements otherwise void under this article are valid in favour of persons (whether original bene- ticiaries or their assigns) who have, bond fide and without (w) Mackintosh v. Pogose, 108. [1895] 1 Ch. .505. (»/) See cases infrn. pp. 108 — fr) See cjwes infra, pp, 106 — 112. Void against Creditors under 13 Eliz. c. 5. lOo notice of the intenclecl fraud, given, or are pri^-y to, Art. 16. valuable consideration (z). (4) Xo delay short of the statutory period of limita- tion -^ill bar an action to set aside such a settlement, the right being legal and not equitable (a). (5) Where a settlement is set aside as against creditors it is not cancelled in toto, but the trustees are directed to join and concur in all acts and deeds neces- sary for making the settled property available for the creditors. Any siu'plus goes to the beneficiaries (h). Paeagraph (1). This article is an attempt to digest the effect of the statute Words of 13 Eliz. c. 5. passed "for the avoiding of feigned, covinous, and "eij^^c^o. fraudulent feoffments, etc., contrived of malice, fraud, covin, coUiisiov, or ffuile, to delay, Jiinder, or defraud creditors or others,'' by which it was enacted, that " aU and every feoff- ment, gift, grant, alienation, bargain, and conveyance of lands, tenements, hereditaments, goods, chattels, or any of them, by writing or otherwise, and all and every bond, suit, judgment, and execution to and for any intent or purpose before declared and expressed, shall be deemed and taken only as against that person or persons, his or their heirs, successors, executors, admmistrators and assigns whose action, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs by such guileful, covinous or fraudulent devices and practices as is aforesaid are, shall, or might be in any ways disturl3ed, delayed or defrauded, to be clearly and utterly void, frustrate and of none effect : any pretence, colour, feigned consideration, or any other matter or thing to the contrary notwithstanding."' By the fifth section it was provided that the Act should '• not extend to any estate or interest in lands, etc., or goods, etc., assured upon good consideration and bond ride to any person not having at the time of such assurance any notice or knowledge of such corin. fraud or collusion." The scope of the statute has been enlarged from time to time, as property which was not originally within the reach of creditors has been brought within their reach. Thus copy- holds were formerly not included (c), but were brought within the statute by the effect of 1 c^- 2 Yict. c. 110, s. 11 : and now {z) See cases j7jf ra. p. 113. (b) Ideal Bedding Co. v. (a) Re Maddever, Three Towns Holland, [1907] 2 Ch. 157. Bankin). It should also be observed that the protection afforded to bond fide purchasers for value from a beneficiary under a fraudulent deed, is not confined to purchasers of legal estates or interests, but extends to purchasers of mere equitable interests (e). Art. 17. — When a Trust is void as against Subsequent Purchasers from Settlor. (1) A settlement of lands is void, as against sub- sequent bond fide purchasers for value from the settlor, if made with intent to defeat such purchasers ((/) ; or if it is revocable (f). (2) Provided always, that this article in nowise prejudicially affects bond fide purchasers for value (f), whether they be beneficiaries under a trust based on value but fraudulent in inception, or assigns of voluntary beneficiaries {), or would create an illegal trust (c), or would otherwise defeat the settlor's intentions (as gathered from the motives which led to (a) Wrigld v. Pearson (1758), Lovatt v. Williamson, [1894] 1 1 Eden, 125 ; Atisten v. Taylor Ch. 661. (1759), 1 Eden, 361 ; Brydges v. (h) See Earl of Stamford v. Br2/^(/es (1796), 3 Ves. Jun. 120 ; John Uobart (1710), 3 Bro. Jervoise v. DuJce of Northumber- P. C. Toml. ed. 31. land (1820), 1 Jac. & W. 559 ; (c) Eumherston v. Humberston and see Be Whiston's Settlement, (1717), 1 P. Wms. 332. 1-20 Express on Declared Trusts. Art. 18. the settlement, and from its general object and purpose, or from other instruments to which it refers, or from any circumstances which may have influenced the settlor's mind((/)) , the court will direct a settlement to be executed in such form as will best answer the intent of the parties (c). In the case of marriage articles there is a strong presumption that the motive was to ])rovide for the issue ; and conse- quently words which read in their ordinary sense would defeat that object will be bent in order to effect it. But there is no such inherent presumption in other cases ; and consequently some intention must be manifested either in the instrument itself, or inferen- tially from its object, or from other instruments to which it refers. Distinction between executed and execu- tory trusts well settled. Executed and execu- tory trust in same instrument construed diflFerently. This rule has been acted on for over 200 years, and was stated by Lord Cowper (/) in 1710 in the following words : " In matters executory, as in the case of articles or a will direct- ing a conveyance, where the words of the articles or will are improper or informal, this court will not direct a conveyance according to such improper or informal expressions in the articles or will, but will order the conveyance or settlement to be made out in a jjroper and legal manner, so as may best answer the intent of the jDarties." The rule is strikingly exemplified l)y the ancient case of Papillon V. Voice ig). There a testator had bequeathed monej' to trustees upon trust to purchase real estate and settle it upon A. for life, with remainder to trustees to i)reserve contingent remainders, with remainders to the heirs of A.'s body, with power to jointure. He also devised his own lands to precisely similar uses. Yet it was held that, as he had manifested an intention to give A. a life e.state only (which the rule in Shelley's Case had defeated in the case of the devised lands), the court would so model the executory trust as to carry out his intention by giving him a (d) See vcr Lord Chelmsford in Sachville-West v. Visrniint Jlolmesdale (1870), L. ]{. 4 ]\ I, 543. (e) Jitirl of Stamford v. John lloharl (1710), .'jlJro. P. (". Toml. Kd. 3:i ; a>ul .SCO Coqan v. Duflidd (1876), 2 V\u D.44." (/) Earl of Stamford v. John Ilobart, swpra. ig) (1728) 2 P. Wins. 471 ; and Koe also Trevor v. Trevor (1847), 1 H. L. Cas. 239; Tarlcer v. Bolton (1835), 5 L. .J. (n. s.) Ch. 1»8 ; and Thompson v. Fisher (1870), L. K. 10 Eq. 207. Executory Trusts not Construed Strictly. 121 life estate Nvith remainder to his lirst and other sons succes- Art. 18. sively in tail. In fact any indication in an executory trust that an apparent devisee in tail is only to take a life estate will be given effect to ; as, for instance, a direction that he is to be unimpeachable for waste, or that he shall not have power to bar the entail, or that if he should die without leaving issue the projierty should go to other persons or the like (h). On similar grounds, the words of an executory trust will be Where strict departed from where a strict construction would render the vXiid"niake trust illegal. Thus, in an early case, a testator devised lands tiust illegal to a corporation, in trust to convey to A. for life, and after- wards, ujDon the death of A., to his first son for life, and then to the first son of that first son for life, with remainder (in default of issue male of A.) to B. for life, and to his sons and their sons in like manner. That was of course an attempt to create a perpetuity, yet Lord CowPER held that, so far as was consistent with the rules of law, the devise ought to be complied with ; and directed that all the sons already born at the testator's death should take estates for life, with limitations to their unborn sons in tail (k). As another illustration of the general rule may l)e quoted separate use the case of Willi.^ v. KymfvQ). There a testatrix had by her impoi'ted in . . ^ executory will, after requesting her sister Eliza to perform her wishes as trust. therein expressed, bequeathed various legacies to her brothers and sisters and their children, including a legacy of 3,000/. to her brother John for life, " the principal to be divided at his death between his children John, Sophia, and Mary Ann." The testatrix subsequently made a codicil, whereljy she bequeathed to Eliza " all I possess," requesting that at her death she " will leave the sums as I have directed heretofore." Eliza by her will appointed the shares of Sophia and Mary Ann to them to their separate use, and the question then arose whether sbe could do so ; and Sir Geoege Jessel, M.E., said, " I am of opinion that Eliza had power to attach a limitation to separate use. . . . The original will and codicil say nothing about separate use. They merely direct her to {h) Pajyillon Y. Voice (1728), Tho7npson v. Fisher {1870), L. B. 2 P. Wms. 471 ; Parker v. 10 Eq. 207. Bolton (1835), 5 L. J. (n. s.) Ch. (/.;) Humberston v. numbers- 98 ; TJiompson v. Fisher (1870), ion (1717), 1 P. Wins. 332 ; L. E. 10 Eq. 207 ; Lord Glenorchy Williams v. Teale (1847), 6 Hare, V. Bosville (1733), For. 3, 2 Wli. 239. & Tu. Lead. Cas. (ed. 7), 763 ; [1) (1877) 7 Cli. D. 181. 122 Express or Declared Trusts. Art. 18. leave the money after her brother's death to his children, and nothing more. She is, therefore, bound not to make a different disposition. "Well, she has conformed to that direc- tion by leaving the money to the children, and, in doing so, has taken care to dispose of it in such a manner that the shares of the daughters shall, in case of their marriage, still remain for their own benefit, thus effectually carrying out her sister's intention." Cross- A testator directed his trustees to purchase lands in the remainder counties of N. and D., to be settled, on the death of the eldest sometimes implied. SOD of J. S. without issuB (which happened), to the use of every son of J. S. then living or who should be born in the testator's lifetime, and the assigns of such son during his life, with remainder to trustees to preserve contingent remainders ; but to permit such son and his assigns to receive the rents during his life, and after his decease to the use of such son's first and every other son successively in tail male, and on failure of such issue, to the use of the testator's right heirs : — Held, that the younger sons of J. S. took as tenants in common for life, with remainder as to each son's share to his first and other sons in tail male, with cross-remainders over (;«)• Art. 19. — Distinction between Executory Trusts arising respective! 11 under Marriage Articles and Wills. (1). In the case of marriage articles there is a very strong presumption that the motive was to provide for the issue of the marriage ; and consequently provisions which, if construed literally, would defeat that object, will be bent in order to give effect to the presumed intention. (2). But in the case of other deeds and wills directing the creation of trusts, there is no such inherent pre- sumption ; and consequently some intention must either l)e verbally manifested, or must be inferred from the object of the instrument, or from other instruments to which it refers. (m) Surkes v. Suriees (1871), L. R. 12 Eq. 400. Construction of Marriage Articles. 128 Paragiupii (1). Art. 19. The preceding article shows the liberal interpretation which Diytin^tiyn the court gives to executory trusts generally in order to between comply with the inherent evidence of intention. The present ti^a^tfarisin" article is directed to that evidence ; and here there is a dis- under tinction to be observed between executory trusts contained in aiticiefand marriage contracts (or marriage articles as they are generally those arising called) and executory trusts directed by other instruments. For marriage articles by their very nature furnish more emphatically a clue to the persons intended to be provided for (viz., the spouses and issue of the marriage), than do wills or non-matrimonial settlements. It is therefore a well-settled principle, that an intention to provide for issue will, in the absence of a contrary intention, be presumed in the case of executory trusts in marriage articles. Thus, in marriage articles, a covenant to settle estates to the Rule in use of the husband for life, with remainder to the wife for life, '^^S^^'"'^ with remainder to their heirs male and the heirs of such heirs male, is always construed to mean that the settlement shall be so drawn as to give life estates only to the husband and wife successively {n) ; for it is not to be presumed that the parties meant to put it in the power of the husband to defeat the very object of the settlement, which is to make a pro- vision for the issue of the marriage (o). But where the articles show that the j^arties understood the distinction (as, for instance, where part of the i)roperty is limited in strict settlement, and part not), the trust will be construed strictly {p). So, again, where an intended husband covenanted to settle Rule in real estate to the use of himself for life, with remainder to the ne'^ativecT*^ use of the "wife and children," it was held that, although {%) Trevor v. Trevor (1720), 1 Gilb. Eq. Rep. 114; Burton v. P. Wms. 622; Streatfield v. Hastings (1715), Gilb. Eq. Rep. Streatfield{ll35), Gas. t. Talb. 176, 113 ; Hart v. Middlehurst (1746), 1 Wli. & Tu. Lead. Gas. (8th 3 Atk. 371 ; Maguire v. Scully ed.), 440; Jones v. LangJiton (1828), 2 Hog. 113; Burnabij v. (1698), 1 Eq. Gas. Abr. 392; Griffin (1796), 3 Ves. Jim. 266; Ousack V. Cusaclc (1714), 5 Bro. Home v. Barton (1815), 19 Ves. P. G. Toml. ed. 116; Griffith y. 398; Phillips v. James (1865), Buckle (1686), 2 Vern. 13 ; 8tonor 2 Dr. & Sm. 404. V. Curwen (1832), 5 Sim. 264; (2>) Howel v. Howel (1751), 2 Davies V. Davies (1841), 4 Beav. Ves. Sen. 358; Powell v. Price 54 ; Lambert v. Peyton (1860), (1729), 2 P. Wins. 536 ; Cham- 8 H. L. Gas. 1. be^s v. Chambers (1729), 2 Eq. (o) As to tlie meaning of Gas. Abr. 35, c. 4 ; Highway v. " issue " in marriage articles, Banner (1785), 1 Bro. C. C. 584. see Nandike v. Wilkes (1715), 1-24 ExrEESs OR Declared Trusts. Art. 19. Marriage articles providing for strict settlement of wife's real estate. Proper form where marriage articles pro- vide for settlement of wife's pcrsonaltj-. in the case of an executed trust under a will, these words would (pursuant to the rule in JVild's Case (q)) have given the wife an estate tail, yet in marriage articles the true con- struction was that she should only take a life estate, with remainder to the children as tenants in common (;•). Nevertheless (somewhat strangely) it has been held that marriage articles providing that real estate should be " strictly settled " in the event of the ladj' having issue, did not autho- rise any portions for j-ounger children ; apparently on the ground that the object of " strict settlement " is to keep the property in the family (s). But it is humbly doubted whether this case (which is a case of construction and not of law) would now be followed by the House of Lords ; for a power to portion younger children is almost universal in strict settlements. A similar direction in a will has (in the Irish courts), been held to authorise a jointure for a widow (^), but of course a jointure is an income charge, whereas portions intrench on the capital. Anyhow it is apprehended that where the articles provide for " powers usually contained in settlements of a like nature," powers of creating portions and jointures would be implied, as powers of sale, exchange, etc., have been («), if evidence of conveyancers were adduced to prove their usual nature. A reference to specific powers, on the other hand, has been held to negative others, on the principle expressio unins cxcbisio alterius est(x). With regard to marriage articles relating to the lady's per- sonal propert}^ the late Lord Justice Baggallay made the following remarks in Cogan v. Du field (//) : " The mode of settling a wife's fortune which is approved by the court, is to give her the first life interest for her separate use " without power oi anticipation (^)j ; " then a life interest to the husband ; then (subject to the powers given to the husband and wife of appointing the fund among the issue of the marriage) it is given equally to such of the children as being sons attain twenty-one or being daughters attain that age or marry ; or else to the children equally with gifts over in favour of the others if any of them being sons die under twenty-one or being daughters ig) (1599) 6 Rep. 17. (r) Jiossiter v. liossiter (1863), 14 Ir. Ch. K. 247. («) (Jrier v. Grier (1872), L. 11. 5 H. L. 688. (<) Wrifjid V. Wright, [1904] 1 Ir. K. 360. («) JMike of Bedford V. Marquis of Abercorn (1836), 1 Myl. & Cr. :J12; Wise V. Pijjer (1880), 13 Ch. 1). 848. (a-) Breutiler v. Angell (1820), 1 .Jae. & W. 625. (y) (1876) 2Ch. D. 44. (z) Re Parrott, Walter v. Par- rott (1886), 33 Ch. D. 274. Construction of Marriage Articles. 125 die under that age uinnarried. If tliere is no child wlio Art. 19. being a son attains twenty-one, or being a daughter attains that age or marries, then, if the wife survives, the fund is limited to her, but if she dies in the husband's lifetime slie has a general power of appointment over it, and in default of any exercise of that power, it is given to her next of kin as if she had died intestate and without having been married." In the above case the articles provided that the trusts of the Conini v. income were to be " for the benefit of the said Agnes Duffield ^"^"' ' • and Joseph Cogan during their lives and the trusts of the caj)ital for and amongst the children according to the appoint- ment " of the said J. C. and A. I), or the survivor of them, and in default of appointment to the children equally, and in the event of there being no children and of the said J. Cogan being the survivor the trust property to be at his absolute disposal. Lord Justice Baggallay, after making the remarks quoted in the last paragraph, said : " Such being the form of settlement which the court thinks most expedient, what would it do as to these articles ? So far as they provide for the destination of the income or capital the court must yield to them. But in construing them it will have regard to what is recognised as the most proper form of settlement. Now here as regards the income, the articles are mere heads, and do not make a complete disposition of the income during the lives of the husband and wife. It is necessary to supplement them ; and I agree that they ought to be carried into effect by giving the wife the first life estate to her separate use. When we come to the provisions for the children we find only general words which must be supplemented." His lordship then proceeded to make their interests contingent on the attainment of twenty- one in the case of males and on attaining that age or marry- ing in case of females, so that the hushand coiihl not take as representative of a child who died in infancy. It is also settled that the power of appointment among issue Towers should be given to the spouses and the survivor of them (a), and beins°erte°d that the settlement ought to contain the usual powers of in settle- maintenance and advancement {}>) ; but not an after-acquired plfi^ualft^to property clause, even where the articles provide for " such marriage other agreements, clauses, and provisions as are usually inserted in settlements of a like nature " (c). Where, however, articles. (a) Be Gowan, Gowan v. Gowan (1889), 42 Ch. D. 54. (1880), 17 Ch. D. 778. (c) Be Maddy, Maddy x, {b) Ibid., and Nash v. Allen Maddy, [1901] 2 Ch. 820. 12G Express or Declared Trusts. Art. 19. Direction to settle dauprh lei's' shares on themselves strictly. Only differ- ence between construction of marriage articles and wills is that in marriape articles reH ipsa loquitur. .such a clause is expressly directed, and also a clause for varj'- ing investments of settled personalty, a settlement of after- acquired real estate ought to contain a power of sale; for that is analogous to the power of varying investments of personal estate {d). Paragr.\ph (2). In a will, it is obvious that the same presumption will not arise as in the case of marriage articles. Therefore where a testator gave £300 to trustees upon trust to lay it out in the purchase of lands, and to settle such lands to the only use of M. and her children, and if M. died without issue, " the land to be divided between her brothers and sisters then living," it was held that this gave M. an estate tail(e). So where a testator directed that his daughters' shares should " be settled on themselves strictly," it was held that, there being no particular intention to benefit their issue, each daughter's share should be paid to her for her separate and inalienable use, and that if she died before her husband, then her share should go as she should by -will appoint, and in default of appointment to her next of kin, but if she survived her husband, then the share should belong to her absolutely (/). There is, however, no difference between the construction to be put on an executory trust created by marriage articles, and on an executory trust created by will, except so far as the former (by their very nature) furnish more emphatically the means of ascertaining the intention of those who created the trust (//). In Sarkville-West v. Ilolniesdale, Lord Ciiklmsfoud said : " The best illustration of the object and purpose of an instrument furnishing an intention in the case of executory trusts, is to be found in the instance of marriage articles, where, the object of the settlement being to make a provision for the issue of the marriage, no words, however strong (which in the case of an executed trust would place the issue in the power of the father), will be allowed to prevail against the implied intention. (d) Elton V. Elton (1860), 27 Beav. 634 ; Tail v. Lathbury (1865), L. R. 1 Eq. 174; Wise V. Fij)er (1880), 13 Ch. D. 848; Be Garnett-Orme and Uargreavea' Contract (1883), 25 Ch. 1). 595; lie Eayner, Rayner v. Eaijticr [1904] 1 Ch. 177; Re Gent and Eason's Contract, [1905] 1 Ch. 386 ; and Re Pope's Contract, [1911] 2 Ch. 442, iiom which it seems that such a power will be implied if not expressed. (e) Sweetapple v. Bindon (1706), 2 Vern. 536. (/) Loch V. Bagley (1867), L. R. 4 Kq. 122. {(f) Saclville-West v. Viscount Holmesdale (1870), L. R. 4 H. L. 543 ; and see also Christie v. Gosling (1866), L, R. 1 H. L. 279. Executory Trusts in Wills. 1-27 So, as Sir W. Grant said, in Blackburn v. Stables (h), " in the Art. 19. case of a will, if it can be clearly ascertained from anything in the will that the testator did not mean to use the expressions which he has employed in their strict technical sense, the court, in decreeing such settlement as he has directed, will depart from his words to execute his intention.' . . . There are cases of executory trusts in wills, where the words * heirs of the body ' have been made to bend to indications of intention that the estate should be strictly settled ; and a direction in a will, that a settlement ' shall be made as counsel shall advise,' has been held sufficient to show that the words were not intended to have their strict legal effect " (i). It was therefore held that a direction to settle land "in a Settlement course of entail to correspond as near as may be with the ^^ ^^^! ^^^^^^ limitations " of a barony, would be properly executed, not by spond with giving the baron an estate tail, but by giving him a life estate I'^° I'mita- o o ^ ^ ' ^ ) (1733) For. 3, 2 Wh. & Tu. Lead. Cas. (7th ed.), 763. Covenants to Settle Wife's Property. 129 was executory, and as the testator's intention was to provide Art. 19. for the children of the marriage, that intention would be best carried out by a conveyance to the grand-daughter for life, with remainder to her husband for life, with remainder to her first and other sons in tail, with remainder to her daughters. Where, however, there are indications that the settlor con- Departures templates a different form of settlement to that favoured by ordkiary the court, his wishes will have effect given to them. Thus, in form where Be Parrott, Walter v. Parrott (q), a testator had bequeathed as apparent, follows : " To my daughter A., wife of M. W., I bequeath 10,000L, this amount to be settled upon her for her life, and to be in- vested for her in good securities, in the names of two or more trustees ; at her death, 8,000Z. of the above sum to be divided equally amongst her children, and the remaining 2,000/. to be given to her husband, if living ; if deceased, then the whole amount is to be equally divided amongst her children." It was held by the Court of Appeal that, on the construction of the will, the settlement must be so framed as to confine the contingent gift of 2,000/. to "her husband if living" to her husband at the date of the will(r), and also (rather curiously) so as to confine the trusts in favour of the daughter's children to children by that husband who being male should attain twenty-one or being female should attain that age or pre- viously marry. It was further held that the settlement ought to debar the daughter from anticipation during coverture, and ought to contain the usual powers of maintenance and advancement, and a general testamentary power of appoint- ment exercisable by the daughter in default of children, with the usual limitations to herself or next of kin in default of appointment ; but not any power of appointment among her children, as that would be inconsistent with the trust for equal division. Art. 20. — How far the Wife is hound bij Covenants to Settle Property. (1) Whether a wife is bound by a covenant con- tained in a marriage settlement to which she is a party, to settle her other, or her after-acquired property, or whether such a covenant only binds the husband to {q) (1886) 33 Ch. D. 274. the language it was held that a (r) But see NasJi v. Allen subsequent husband was entitled (1889), 42 Ch. D. 54, where on to a life interest. T. K 130 Express or Declared Trusts. Art. 20. Proviso or declaration that pro- pertj' shall be settled. Covenant by the husband alone that the wife shall settle binds the wife. settle whatever he may acquire jure mariti, depends on the words used, in accordance with the following principles : (a) If the words consist of an agreement or declara- tion, or even a covenant by the husband alone, that the wife's property " shall be settled " (and a fortiori where she joins expressly in the covenant), both spouses are bound. (b) A mere covenant by the husband alone that he will settle does not bind the wife, unless the property referred to is specific. But a covenant by him alone that he, ajid his wife, or that he and all necessary parties, will settle binds her even although the property be not specific. (2j If the covenant would b6 binding on the wife but for her infancy, it will be voidable only and not void ; and if she wishes to repudiate it, she must do so promptly. Paragraph (1). A marriage settlement contained the following clauses : " It is hereby provided declared and agreed by and between the said parties to these presents and the said [Jiushand^ for himself," etc., " doth hereby covenant promise and grant to and with the [^trustees'] " that in case the marriage should take effect, and the wife or the husband in her right should at any time during the life of the husband become possessed of or interested in or entitled to any personal estate, etc., in possession, reversion, remainder, or expectancy, the husband and wife should and would transfer and assign the same to the trustees : — Held, that the wife was bound (.s). The last illustration is a simple case, and is, indeed, what arises under all instruments which are well drafted. But the point is not so simple where there is not a proviso and declaration (which, of course, prima facie binds all parties to the deed), but a covenant by the husband alone. In such cases it appears, from the modern authorities, that the wife is bound where the covenant is that the property " shall be settled," or that "he and the wife " will settle, on the ground that the wife is an assenting party to the covenant, and cannot («) Townshend v. Unrrowby (1858), 27 L. J. Ch. 553. Covenants to Settle Wife's Propekty. 131 afterwards obstruct its performance. Thus, in the case of Art. 20. Butcher v. Butcher {t), the form of the husband's covenant was, that in case any personal estate should at any time there- after, during the coverture, come to or vest in the wife, or the husband in her right, the same should be paid, assigned, or transferred hij all i^roi^er parties : — Held, that a reversionary interest in certain property, to which the wife became entitled during the coverture for her separate use, was bound by the covenant. A similar decision was given by Kay, J., in Re De Eos' Trust, Hardwicke v. Wilmot (u), where there was a covenant by the husband only, in general terms, but the acts which were to be done in pursuance of the covenant were expressly to be done by the wife as well as the husband. On the other hand, in Dawes v. Tredwell {x), where the Covenant by words were very similar, except that the settlement was not to a^oneThaThe be " by all proper parties," but the acts were onhi to be done by will settle is the husband, it was held that the property which came to the on\he°w\fe wife for her separate use was not bound by the covenant. But the decision was contra where the covenant was that the husband and all other necessary parties would settle (//) . In Lee v. Lee {z), the late Sir G. Jessel, M.R., decided that Aliter where the wife is bound even when the husband's covenant does not ^^° property IS specific expressly state that she is to do any act or that the property and the wife is to be settled in cases ivhere the property aimed at by the (leg^ '"*^^ covenant is specific and not general. In that case, an ante-nuptial settlement was signed by all parties, including the intended wife, and, by it, her parents agreed that they would appoint to her a share of certain reversionary property over which they had a power of appointment. The husband then agreed that he would settle such share as the wife might take in the property in question, either by appointment, or in default of appointment. It was held by the Master of the Eolls that although there was no express covenant by the wife, neverthe- less the property was bound. He said : " then the husband proceeds to settle, or agrees to settle, what does not belong to him, as, indeed, appears by the instrument itself. Unques- tionably the property was not his to settle ; it was his wife's, and he could not settle it himself, because during the lives of the wife's father and mother he could have no interest what- ever ; therefore, his covenant or agreement to settle was a (t) (1851) 14 Beav. 222. Be Smith, Robson v. Tidey, per (tt) (1885) 31 Ch. D. 81. Byrne, J., March 15th, 1900. (x) (1881) 18 Ch. D. 354. {z) (1876) 4 Ch. D. 175. (y) The unreported case of k2 132 Express or Declared Trusts. Art. 20. Covenant by the husband alone that the pro- perty shall be settled. Effect of Married Women's Property Act. covenant or agreement to settle not his own estate, but some- body else's. But bis ^vife was an assenting party to this agreement. It was, therefore, simply an agreement by A., with B.'s assent, to settle B.'s estate, and in such a case it is clear that B. is bound. So that, even if it is treated as a covenant by the husband alone, 3'et it is for valuable con- sideration, and with the assent of the wife, and she is therefore bound." In the case of lie Haden, CoUufi v. Haden (a), a marriage settlement contained a covenant by the husband alone, that all the real and personal estate above a certain value which should at any time during the coverture b}' any means be acquired by the wife, or the husband in her right, shoidd fortliicitli he settled upon the trusts of the settlement. The wife was a party to and executed the deed. During the coverture she became entitled, under the will of her father, to certain real estate. It was held by Stirling, J., that the pro- perty in question was bound. After commenting on the cases above cited, he said : "In the present case the covenant is by the husband alone, that the property' shall be settled, not say- ing by whom. The wife was a party to and executed the settlement. It contains no recitals, so I gain no assistance from that source. It seems to me, I confess with some hesitation, that the only way in which I can deal with such a covenant is to look and see if it has a plain meaning, and, if so, to give effect to it. Looking at it from that point of view, and reading the material words, it is a covenant that all the real and personal estate which shall at any time be acquired by the wife or the husband in her right, shall be settled. Can I fairly limit the subject-matter of the covenant to the interest of the husband in the real estate '? It seems to me that I can- not. The words are, in my opinion, intended to include more than the mere interest of the husband. It is an agreement that all the real propert}' of the wife shall be settled, and a person assenting to such a covenant must be taken to mean that the covenant shall take effect accordingly." On the assumption that a covenant to settle after-acquired property is not binding on the wife, it follows that property which has been given to her for her separate use, in equity, does not fall within the husband's covenant. With regard, however, to separate property arising by virtue of the IMarried Women's Property Act, 1882, between 1882 and 1907 this was not so. This question, however, has already been fully (a) [1898] 2 Ch. 220. Property to which Covenants to Settle refer. 133 discussed at i^p. 88 and 89, supra, and need not be further Art. 20. referred to here. Paragraph (2). Assuming that a woman, who is an infant, purports to covenant to settle her after-acquired i^roperty, and subsequently becomes entitled to property for her separate use, is she bound ? The answer is yes, unless she has, after attaining her majority, and becoming aware of her right to repudiate, promptly disaffirmed her liability (b). Art. 21. — ProperUj ichicJi is prima facie excluded from a Covenant to Settle other or after-acquired Property. Prima facie, covenants to settle other or after- acquired property (not definitely described) do not comprise : (1) Income, or (semhle) capitalisations of income. (2) Corpus which a married woman is restrained from anticipating, unless she is simply restrained until it falls into possession. (3) Property over which the covenantor has merely a general power of appointment, or which she has a statutory power of making her own, unless she exercises such powers in her own favour. (4) [Possibly] gifts made by her husband. Paragraph (1). A settlement was made by a husband of all his personal Ordinary estate to which he was then or might thereafter become b^nds corpus entitled, in trust for himself for life with remainders over : — only, and Held, not to comprise his interest in a fund bequeathed to him for life (c). (b) See Viditz v. O'Hagan, (c) St. Aiibyn v. Humphries [1900] 2 Ch. 87 ; Wilder v. Pigott (1856), 22 Beav. 175 ; Townshend (1882), 22 Ch. D. 263; Greenhillv. v. Harroivby (1858), 27 L. J. Ch. North British, etc., Co., [1893] 3 553 ; Lewis v. Madocks (1810), Ch. 474 ; and Be Hodson, Williams 17 Ves. 48 ; Be Dowdinq, Gregory V. Knight, [1894] 2 Ch. 421. v. Doivding, [1904] 1 Ch. 441. income. 134 Express or Declared Trusts. Art. 21. The same principle applies to an annuity bequeathed to a ■ wife (d). But of course such limited interests may be caught by the covenant where it is plainl}^ intended that they should be(r). Questionable "Whether, however, a wife who has covenanted to settle o.ven^a^nts"'^^ after-acquired property is liable to settle property which she bind property has purchased out of the savings of income is not settled. In liroithi ^^'^ Bendj/, Wallis v. Bcudij {/), Kekewicii, J., held that she savings of was. On the other hand, Homer, J., dissented from that view in the subsequent case of Finlay v. Darling {g), saying : " If income which the lady receives from the settled funds and property, is not bound by the covenant (and it is clear the income is not), it appears to me on principle not right to hold that, mereh' because the lady does not choose at once to spend that income but accumulates it either in her purse or at her bankers, she renders that liable to be bound by the covenant which was not bound before. If one half-yearly income she received was not bound, I fail to see wh}^ after several years' receipts of half-yearly income, when the money she had not spent of that income remained in her hands and exceeded 200/,, I should hold that that accumulated income passed from her and went to the trustees of the settlement. In ni}' opinion that is not the meaning or intent of the covenant here ; and, on principle I think that the covenant ought not to be extended to that. If the accumulations in her hands or at her bankers are not held to be bound by the covenant, I fail to see on principle why I should hold the money bound when it becomes invested by her in some investment, such as consols or the like." This was followed by Buckley, J., in Uc Clatt('rl)urk\). Paragraph (4). Whether such covenants prima facie exclude gifts made by the husband to the wife is at present doubtful. In Coles v. Coirs (q), Joyce, J., held that such gifts were excluded. On the other hand, in lie EUiis Settlement, Ellisv. Ellis (r), Swin- FEN Eady, J., held the contrary view, and said that he did not think that Joyce, J., meant to lay down any general rule; and in Re FliiDij^tre's Marriage Settlement, Underhill v. Plumptre (.s), Eve, J., (while admitting that it seemed somewhat anomalous), followed the view of Swinfen Eady, J. The present writer with great humility submits that Joyce, J., did lay down a general rule oi prima facie interpretation and that he was right in that view. These covenants are (as decided by Eve, J., in Re Plumptre's Marriage Settlement, Vnderhill v. Plumptre) purely executory, and should therefore, like marriage articles, be construed so as to answer the presumed intentions of the parties. But if so, it is difdcult to believe that any man and woman, about to intermarry, ever intended by such covenants to preclude the husband making a present to his wife. A covenant so construed might embrace every chattel (such as a diamond necklace, a motor car, a ring, or even a dog) which the husband might wish to give to his wife for her personal use and enjoyment, and every cheque which he might give her to take a trij) on the Continent, which is, it is submitted, a rediietio ad ahsnrdiim. Moreover, what was the object of these covenants ? Surely to protect the wife against the old common law doctrine which handed her chattels to her (o) Be O'Connell, Maule v. Jagoe, [1903] 2 Ch. 574; and see also Bower v. Smith (1871), 19 AV. R. 399, explaiued in Steward V. Poirpleton, [1877] W. N. 29 ; and lie Lord Gerard, Oliphant v. Gerard (1888), 58 L. T. 800, observed upon in Ee O'Connell, Maule V. Jagoe, suina. (p) IlWters V. Parkinson (1883), 2r, Ch. D. 200; Ee Dimsany's Settlement, Nott v. Bunsamj, [1906] 1 Ch, 578. {q) [1901] 1 Ch. 711, following Malins, V.-C, in Dickinson v. Dillwyn (1869), L. R. 8 Eq. at p. 551, and followed by the Irish court in Kingan v. Matier, [1905] 1 Ir. R. 272. (r) [1909] 1 Ch. 618. [s) [1910] 1 Ch. 609. Property to which Covenants to Settle refer. 137 husband absolutely and her lands to him for his life. That Art. 21. that was the primary object of such covenants was distinctly stated by James, L.J., in Re Edwards (t), where it was held that they were restricted to property coming to the wife during the marriage (infra, p. 139). Swinfen Eady, J., seems to have dissented from this last view and said that such covenants were also intended for the benefit of the issue. No doubt the issue are within the valuable consideration which supports them, for otherwise the issue could not enforce them ; but the view that these covenants are intended for the benefit of the issue, seems to be inconsistent with the cases {supra, p. 134) which h.2iNe prima facie excluded the wife's income and capitali- sations of income from the purview of such covenants, and with those in which it has been held that they only apply to property falling to the wife during the coverture although they extend to property falling to the husband, y'wv mariti after the coverture has been determined by death or divorce (see infra, Art. 23), the ratio decidendi of which is that these covenants are intended for the wife's protection. If it be argued that these covenants may exclude personal chattels, but not gifts of money or securities, it is answered that such exclusion can only be justified b}^ implied intention and that it is a safer and more logical rule to apply the intention to all gifts made by a husband than to some only. It must also not be forgotten that, before the Married Women's Property Act, a husband was incapable of making a common law gift to his wife ; so that, as a matter of law, such apparent gifts remained his property, and could not be caught by such covenants ; and it would be a strange effect of the Act to bring within such covenants, common law gifts which the law previously excluded from them. It is much to be desired that the question should be con- sidered by the Court of Appeal, as the writer knows of several instances in which trustees have claimed such gifts, and, rather than litigate the matter, the husband and wife have given way. In a somewhat analogous case, it has been held that an indemnity given by a Scottish husband to his wife against an act (e.g., change of domicile) which would deprive her of her jus relictce under the law of Scotland, does not bring her jas relictce within a covenant to settle after-acquired property («.). {t) (1873) L. K. 9Ch. atp. 100. {u) Be Simpson, Simpson v. Simpson, [1904] 1 Ch. 1. 138 Express or Declared Trusts. Art. 22. Art. 22. — What Property is comprised in a General Covenant to settle Property to which the Wife is presently entitled. Where the covenant is to settle property to which the wife "is now entitled," or words to that effect, all property to which she then has any title, whether it be in possession, reversion, or contingency, is bound. In Ee Jackson's WiU(v), the covenant was, " that if at the time of the solemnization of the intended marriage, the wife shall be, or if at any time thereafter, and during the joint lives of the hiTsl)and and wife she or her husband in her right shall become, beneticially entitled to any real or personal property estate or effects for any estate or interest whatsoever, then and in every such case " it should be settled. Held, that a reversionary interest in personalty which was vested in the wife at the date of the marriage, but was liable to be divested by the exercise of a power of appointment, was included in the covenant, although it did not fall into possession until after the husband's death (x). Covenants to settle present property comprise property to which the wife has a title, whether in possession, reversion, or contingency. Art. 23. — What is comprised in a Covenant to settle after- acquired Property of the Wife, or of the Husband in her Right. (1) A covenant to settle after-acquired property of the wife is limited, prima facie, to property acquired during the marriage. (2) A covenant to settle property to which *' the wife or the husband in her right shall become entitled," prima facie binds, not only future property of the wife, but also property to which she is entitled at the date of the marriage ; {sed quojre, when the marriage took place since 1882). (3) A covenant to settle property to which tlie ivife shall become entitled, binds — (a) property to which she is then entitled (v) (1879) 13 Ch. D. 189. (.r) See also Ee Mackenzie (1867), L. R. 2 Ch. 345 ; Agar v. George (1876), 2 Ch. D. 706; in Cornmell v. Keith (1876), 3 Ch. D. 767 ; and Sweetapple v. Ilorlock (1879), 11 Ch. D. 745. Property to which Covenants to Settle refer. 130 reversion, remainder, or contingency ; pro- Art. 23. vided that it falls into possession during the period covered b}^ the covenant ; and (b) property to which she has no title at the date of the marriage, but in which she acquires a reversionary or contingent interest during the period covered by the covenant, even although it may not fall into possession during that period. Paeagkaph (1). In Re Edwards (y), James, L.J., said : " The primary object Prbndfncie of a covenant to settle the future property of a wife, is to ^o*^setti^e^after- prevent its falling under the sole control of the husband, and acquired pro- it therefore, 'piimd facie, is to be supposed not to be intended [jniit'ed to to apply to property the wife's title to which does not accrue property until after the husband's death. We have consulted the Lord during the Chancellor [Selbokne] on the case, and he agrees with us in coverture, the opinion that, in the absence of any expression showing that a covenant of this nature was intended to have a more extended operation, it is to be construed as if the usual words ' during the said intended coverture ' had been inserted. It appears to his lordship, as well as to us, that the rule laid down in Dickinson v. Dillivyn {z) and Carter v. Carter (a) is to be followed, and not the rule which was acted upon in Stevens v. Van Voorst (ft)." The rule has been more lately carried to its logical conclusion, the court holding that it applies where the coverture has been determined either by divorce or judicial separation (c). The rule, as above stated, was, however, expressed somewhat But where too broadly by the late Lord Justice James ; for a general ^^^^ives it" covenant to settle a wife's future property will not be re- binds him stricted to property falling in during the coverture if the pro^^erty hiLshand survives, though it will be so restricted when the acquired wife survives. In Fisher v. Shirlcij (d), the wife was entitled ^fteV the to a vested reversionary interest in personal estate, which fell vvife's death, into possession after her death, and was claimed by her husband jure niariti. Stikling, J., however, held that it was bound by (y) (1873) L. R. 9 Ch. 97, at Broughton v. BrougJdon, [1894] p. 100. 3 Ch. 76. {z) (1869) L. R. 8 Eq. 546. (c) DavenjJort v. Marshall, (a) (1869) L. R. 8 Eq. 551. [1902] 1 Ch. 82 ; Be Siiivpson, (h) (1853) 17 Beav. 305; and Simjhson v. Simjjson, [1904] 1 see Be Gam2:)belVs Policies {1811), Ch. 1. 6 Ch. D. 686 ; Be Coghlan, {d) (1889) 43 Ch. D. 290. 140 Express or Declared Trusts. Art. 23. Qua;re, whether a husband's covenant would bind separate pro- perty of the wife vesting in him as her adminis- trator. Covenants which apparently comi)rise future acquired pro- perty only the husband's covenant to settle the wife's after-acqiured property. The learned judge, commenting upon Lord Justice James' judgment in lie Edwards, supra, said : " No doubt the concluding words of the Lord Justice in that judgment at first sight support the contention on behalf of the husband. But when the literal construction of a covenant is departed from, one ought to look at the reason for so doing, and the reason assigned is, that the object of the covenant is to protect the property, the subject of the covenant, from the husband's marital right, and preserve it for the benefit of the wife and children. There is no need to protect property against the husband's marital right where the wife does not become entitled until after the husband's death : but there is need of such protection where the husband is the survivor and the pro- perty falls in after the wife's death. If effect were given to the husband's claim, his marital right would be enforced instead of the wife's propert}' being protected against it, and the very object of the covenant would be defeated. The words of the covenant in the present case are quite general, and the reason assigned for limiting them does not ajjpear to apply, and, in my opinion, they cannot, in the present case, l^e limited as suggested." "Whether the distinction made b}' Mr. Justice Stirling would ajDply where the property is separate estate of the wife, other- wise than under the Married Women's Property Act, is not clear. On the one hand, if she died intestate, her husband would take it, and it would therefore fall within the mischief aimed at by Mr. Justice Stirling. On the other hand, if she made a will bequeathing a vested remainder, the mischief in question would seem not to arise. Possibly the difficulty might be solved if the rule were still more elaborated, and such covenants were held binding on the wife with regard to property falling into possession during the coverture onl}-, and on the husband as to property coming to him jure mariti, whether during the coverture or afterwards. But this is a question for future decision. Paragraph (2). The cases in relation to what words do, and what do not, indicate an intention to settle property acquired after the marriage, are very conflicting, and probably each case must be judged on the actual words used. But in inUianis v. Mercier {e) it was held that, in the absence of any explanatory recitals, a covenant to settle property to which " the wife or [c) (1884) 10 App. Cas. 1. Property to which Covenants to Settle refer. 141 tlte hufihand in her rvjht shall become entitled during the Art. 23. coverture," comprised property to which she was entitled at the moment of the marriage, inasmuch as by the fact of the times bind marriage the husband became entitled J?»-6' maritl. property as Whether the Married Women's Property Act altered this well, between 1882 and 1908 would seem to be a nice question, having regard to the decision in Hancock v. Ilancoclc (./'). It is, how- ever, conceived that it has , as it would be a petitio jrrincijtii to assume that s. 19 of the Act aj)plied, when the very object of the inquiry is whether a settlement of the property in question was in existence. However this may be, it seems clear, that where the cove- nant is merely to settle property to which the icife shall become entitled, then the covenant will not embrace present property of the wife's. And the rather thin and scholastic construction adopted in Williams v. Mercicr, supra, will readily yield "to anything in the context, showing that property to which the wife was then entitled was not intended to be included ; e.g., a recital {(j). Paragraph (3). Assuming that the covenant is restricted to future property On the of the wife, the question then arises, what constitutes future 'j^^lTthe^"'^ property. Paragraph (3) is believed to enunciate correctly the covenant principles which regulate that question. to future'^'^^ That this is so, is apparent from the following considera- property, tions. A covenant to settle future acquired property (without !J^ses'^hat more) is sufficiently wide to embrace (1) that which may be future pro- hereafter acquired in possession, although it has already been bound!^ acquired in title, and (2) that which may be acquired in title Argument only, although possession may never be obtained during the proving that coverture ; but it cannot possibly embrace that to which a title be a new has already been acquired, which title is not followed during "^^'"^J^^^^g the coverture b}"- the actual right to possession. In short, such a in the old" covenant is aimed at some future change of ownership, which [^"0'*°^^"°° may be either a change of title or a change of the actual right within a to enjoy ; and where neither one nor the other occurs, there gg^^tie future is nothing on which the words of the covenant can act. property. Thus, where a vested remainder, to which the wife is entitled a remainder at the date of the settlement, does not fall in during the cover- ^^^^rrfage not ture or the life of the husband (if he be survivor), it will not be bound unless bound by the covenant to settle future-acquired property ; for liu^hig the (/) (1888) 38 Ch. D. 78; see v. Gandy (1886), 33 Ch. D. 300; ^^l/"^ p. 89, supra. and see also Be Viant (1874), ig) See Be Garnett, Bobinson L. R. 18 Eq. 436. 142 Express or Declared Trusts. Art. 23. Aliterii it does fall in. A remainder which is not in existence at date of marriage is bound, even although it does not fall in during the husband's life. the wife, ex hypothcsi, has acquired no new right in it since the settlement (/O. But when such a vested remainder does fall in during the coverture (or where the period for which the covenant is to be operative is not named during the life of the husband {i) ), then it is bound ; for the wife has acquired a new right since the settlement, viz., the right to the present enjoyment of the property (A). The same rule applies with increased force to an interest, contingent at the date of the marriage, which falls into possession during the coverture (/). A fortiori will the property be bound, where the wife had no title whatever to it at the date of the marriage, if she acquires a title, (although it be only in remainder or reversion,) during the period which the covenant covers. For it is clearly an entirely new proprietary right, and not (as in the last case) merely the change of a right in reversion to a right in possession (m). Property not bound if it comes to the covenantor in a diiferent way from that contemplated by the settlement. Art. 24. — Covenants to settle a Definite Interest in Property. Where the covenant is to settle a definite estate or interest in property, if that interest subsequently becomes enlarged, the covenant does not bind the enlarged interest ; and if the definite interest fails, but the covenantor acquires the property under another title, it will not be bound. In Sweetapjjle v. Horlock (n) (corrected in Re Jackson's Will (o)), the intended wife, being entitled to a reversionary interest under her parents' settlement, liable to be defeated by (h) See Re Jones (1876), 2 Ch. D. 362 ; Re Redder' s Settle- ment Trusts (1870), L. R. 10 Eq. 585 ; Re Clinton's Trust (1872), L. R. 13 Eq. 295 ; see also Re MichelVs Trusts (1878), 9 Ch. D. 5, where the wife's interest was contingent at the date of the settlement, became vested during the coverture, but did not fall into possession until after the coverture determined, and it was held to fall within the covenant. (i) Fisher v. Shirley (1889), 43 Ch. D. 290. {k) Blythe v. Granville (1842), 13 Sim. 190 ; Spring v. Pride (1864), 4 De G. J. & S. 395 ; Re ('Union's Trust (1872), L. R. 13 Eq. 295. (l) Archer v. Kelly (1860), 1 Dr. & Sm. 300 ; Brooks v. Keith (1861), 1 Dr. & Sm. 462; Re Williams' Settlement, Williams v. Williams, [1911] 1 Ch. 441. {m) Uughes v. Young (1862), 32 L. J. Ch. 137 ; Dickinson v. Dillwyn (1869), L. R. 8 Eq. 546 ; Cowper-Smith v. Anstey, [1877] W. N. 28. (n) (1879) 11 Ch. D. 745. (o) (1879) 13 Ch. D. 189. Covenants to Settle Definite Interest. 143 the exercise by her father of a power of appointment, covenanted Art. 24, to settle all property which she was " then seised of or interested in or entitled to." The father subsequently exercised his power, and appointed to her exactly the same proportion of the property which she would have taken in default of appointment. On these facts, Jessel, M.R., held that the wife's covenant did not comprise the appointed share, although it would have done so if the share had come to her in default of appointment, saying : " A conveyance by a person by innocent assurance, of an interest expressed as being subject to be defeated by the exercise of a power, does not convey an interest which that per- son might take under the power. This is not like a settlement of all property which might come to the wife in any event, but only of that which was then vested in or belonging to her." So, in Smith v. Osborne (j)), it was laid down, that where a man, in his marriage settlement, describes himself as entitled to an expectant estate in remainder in two pieces of land, and covenants that when " such remainder " shall become vested in possession he will convey it to the uses of his settlement ; if he becomes possessed of either of these pieces of land by a title different from that described in the covenant, the covenant will not bind him. As Lord Wensleydale put it, the point resolved itself into this : "Is this a covenant to convey the townlands of Stonehouse to the trustees absolutely, whenever the covenantor was entitled to them in possession ? Or is it a bargain only with respect to the contingent interest, or sj^es successionis, or more correctly, a bargain to convey the estates conditionally, if they should vest in possession in Mr. Boyse Osborne, the covenantor, under the will of the grandfather, Thomas Carr ? " His lordship then pointed out that, in the words of the covenant, it was only to take effect if the estate became vested in the covenantor under the will of his grand- father, and that, as a matter of fact, it became vested in him in defiance of that will, by gift from a tenant in tail under that will, who had disentailed. He further remarked (in reference to an argument of the trustee's counsel that there was an obvious intention to settle the estates themselves), that that was " to apply a wrong rule of construction. It is to interpret the covenant, not according to the meaning of the words used, but according to what the parties may be reasonably supposed (judging from the circumstances in which they were placed) to have been likely to intend to do when they entered into the contract . . . The only safe rule of construction is to (p) (1857) 6 H. L. Cas. 375. 144 Express or Declared Trusts. Art. 24. ascertain the meaning of the words used, and in this case I think it is too clear to admit of any doubt." Where the covenant is to settle property which is worth more than a minimum sum, the property itself, and not the value of the covenantor's interest in it, governs the question. Art. 25. — Covenants to settle Propertij exceeding a Certain Value. Where the covenant is to settle property exceeding a certain value : (1.) That value is the actual value of the property itself after deducting duty (q), and not the actuarial value of the wife's interest in it ; and (2.) That value is, -prima facie, construed to mean the value of funds derived from the same source. But two legacies under the will of the same testator, are so derived (q). In Re Mackenzie (y), a marriage settlement contained a covenant that, if the wife then was, or should at any time during the coverture become, entitled to any real or personal estate of the value of 400/., for any estate or interest, it should 1)6 settled. At the date of the settlement she was entitled (under a prior settlement) in remainder, expectant on her mother's death, to (a) a share of a sum of stock in her own right, and {h) a further share of the same stock as one of the next of kin of a deceased brother. The value of the two shares taken together was above 400/., but the actuarial value of the wife's reversionary interest in them, at the date of the settlement, was considerably less than 400/. Held, that both shares were included in the settlement, the true interpretation of the covenant being that it referred to the value of the property itself, and not to the value of the wife's reversionary interest in it. In giving judgment, Cairns, L.J., said: " It is admitted that the share payable to her out of the fund, on her brother's death, would exceed 400/. after all deductions; but it is said that the value of this share in the year 18G1 [the date of the marriage] was under 400/. The covenant, however, in {q) Re Pares, Scott Chad v. Pares,[1901]lCh. 708. Butc/.2?e RarcourVs Trusts, White v. Har- coiirt, [1911] W. N. 214, where SwiNFEN Eady, J., held that an endowment policy effected by the husband in favour of the wife was not caught, because it was not worth the limit at the date when she first became entitled to the policy, and the marriage had necessarily determined when the money (beyond the limit) became payable. (V) (1867) L. R. 2 Ch. 345. Covenants to Settle Propekty of Specified Value. 145 my oj)inion, does not refer to the value of her interest in the Art. 25. fund, but to the vahie of the fund in which she has an interest; just as we should say that a man was entitled to an estate of the value of 100,000/. on the death of his father, merely to describe the value of the estate, and not the interest in the estate." It will be seen that, in the case last cited, the aggregate of Lni.iied term the two funds was held to be bound, although singly they ^''-'-.^ ^'j° i^^- ° " "^ "^ scribed viiliic were of insufficient amount. But although they accrued to the refers to lady under two titles, they were derived from the same source, J^|.|J"j^ viz., the original settlement. Care must, however, be taken from the to distinguish between covenants where nothing is said upon ^^^"*^ source. this point, and those in which the question is distinctly dealt with. For instance, in the case last cited, it appeared that there were two distinct funds, neither of which taken alone would have fallen under the covenant, but which, taken together, exceeded the value mentioned in the covenant, and although they came to the lady under different titles, they were held to be bound by the covenant. Nevertheless, it seems to be well settled that in such cases the fund will not be bound unless all its parts are derived from tlic same source (s). The same source, however, does not necessarily mean under the same title. In Ee Mackenzie (supra) both funds were derived from the same source (viz., the prior settlement) although part was derived by the lady directly and part as the next of kin of her brother. And in the same way two legacies derived from the same testator are derived from the same source (t). Care must be taken to distinguish between covenants such q.^^^^ whcve as those in lie Hooper (s) and Hood v. Franklin (s), where [he covenant ii • • ■^ 1 • • 1 • 1 /i £ 1 limits the nothmg IS said upon the pomt, and those m which the fund fund to be to be settled is expressly declared to be a minimum sum .^""''^'^^ *^ derived from one and the same source and " at one and the same acquired '• at time." For instance, in Bower v. Smitli (a) the covenant was to ^^^ ^"^®- ' settle property exceeding 500/. in value which the wife should acquire " at any one time." She afterwards became the donee of a general power of appointment over a fund of 5,499/. 19i>. !(/. This power she exercised by eleven sttccessive appointments in favour of herself for sums under 500/. each. On these facts it was held that the appointed funds were not bound, for (s) Ue Hooyer {\%Q5), 13 W. R. (w) (1871) 19 W. R. 399 (the 710; Hood V. Franklin (1873), report in L. R. 11 Eq. 279 is L. R. 16 Eq. 496. misleading and incorrect: see (t) Be Pares, Scott Chad v. Steward v. Foppleton, [1877J Pares, [19U1J 1 Cli. 7U8. W. N. 29). T. L 146 Express or Declared Trusts. Art. 25. although the}- were all derived from the same source, they were not acquired at the same time, i.e., at the same moment. Sums already Where the fund Originally exceeds the minimum named in the ^adv uut ^^^ Covenant, but, by reason of advances made to the lady while of a iuud. it was still reversionary, the fund has been reduced below that minimum, the amount so advanced must be included for the purpose of determining whether the fund is large enough to be brought into settlement. DIVISION III. CONSTRUCTIVE TRUSTS. CHAPTER PAGE I. — Introduction 147 II. — Resulting Trusts 149 III. — Constructive Trusts whicu are not Resulting . .175 CHAPTEK I. INTRODUCTION. Art. 26. — Analysis of Constructive Trusts. (1) Constructive trusts are either resulting trusts (in which the equitable interest springs back or results to a settlor or his representatives), or non-resulting trusts. (2) Resulting trusts arise in the three following cases, viz. : — (a) when property is given to a trustee, upon express trusts which do not wholly dispose of the beneficial interest [a] ; (b) when a trust is declared which the law will not permit to be carried out (b) ; (c) when a purchase has been made in the name of some other person than the real purchaser (c), or personal property has been transferred to a stranger in blood without consideration, and there is no evidence that such persons were intended to take beneficially. (3) Constructive trusts which are not resulting arise : (a) when some person holding a fiduciary position has made a profit out of the trust property (d) ; (a) Art. 27. (c) Art. 29. (b) Art. 28. (d) Art. 31. l2 148 Constructive Trusts. Art. 26. (b) in all other cases where there is no express trust, but the legal and equitable rights in property are nevertheless not co-extensive and united in the same individual (6'). (e) Art. 32. CHAPTER II. RESULTING TRUSTS. ATtT. PAGE 27. — Where Equitable Interest not wholly disposed of . 149 28. — Resulting Trusts, where Trusts declared are Illegal 155 29. — Resulting Trusts, where Purchase made in Another's Name 159 30. — To whom Property results 166 Art. 27. — Where Equitahle Interest not wholly disposed of. (1) When it appears to have been the intention of a donor (a) that the donee was not to take beneficially, there will be a resulting trust in favour of the donor or his representatives in the following cases, viz. : (a) if the instrument is either silent as to the way in which the beneficial interest is to be applied ; or (b) if it directs that it shall be applied for a particu- lar purpose (as distinguished from a mere subjection to such purpose {h) ) w^hich turns out to be insufficient to exhaust the property ; or (c) if an express trust cannot be carried into effect (c). (2) Where the non-beneficial character of the gift appears on the face of the instrument, no evidence to the contrary is admissible {d}. But where it is merely presumed from the general scope of the instrument, («) Per Lord Hardwicke, v. Gwse, [1900] 1 Ch. 84. nUl V. Bi.<^hop of London (1737), (o) Stubbfi v. Sargon (1838), 3 1 Atk. 618 ; Walton v. Walton Myl. & Cr. .507 ; ' Ackroyd v. (1807), 14 Ves. 322; King v. Smithson (1780), 1 Bro. C. C. Denison (1813), 1 Ves. & B. 260. 503. {b) Watson v. Hayes (1839), (d) See Langham v. Sanford 5 Myl. & Cr. 125 ; Wood v. Cox (1811), 17 Ves. at p. 442 ; Irvine (1837), 2 Myl. & Cr. 684; v. Sullivan (1869), L. R. 8 Eq. Cunningham v. Foot (1878), 3 673. App. Cas. 974 ; Be West, George 150 Constructive Trusts. Art. 27. Statement of tlie law by James, L.J. parol evidence is (at all events in the case of gifts inter vivos) admissible, both in aid and in contradiction of the presumption (e). Parage.\ph (1) (a). The law on this subject was compendiously stated by the late Lord Justice James in Merchant Taylors' Co. v. Attormy- G('ncral(f) in the following words: — "As a general rule of law, it is clear that where there is a gift to trustees merely as trustees, they cannot take any benefit arising from the fact that the expressed trusts do not, whether originally or from any subsequent event, exhaust the whole estate. In ordinary trusts the results are, that there is an implied trust for the donor's heirs or representatives. In most gifts for charitable purposes there is an implied trust for charit}'. But there is a class of cases — not confined or peculiar, as it seems to me, to gifts to colleges, municipal corporations, or city guilds — in which it is a fairl}' moot question, whether in a gift of property to trustees they take as trustees solely for the purposes of the trusts, or take suhject only to the due execution of the specified trusts. And, in considering that question where it fairly arises, every surrounding circumstance, the character and position of the donor and the donee, the more or less probability of one intention or another, the current of authorities in similar, or nearly similar cases, are all matters which the court of construction not only may, but must, look to for aid and guidance. But where the testator or donor has in express words directed the whole of the property, or the whole of the rents and profits, to go to purposes which exclude all beneficial interest in the donee, and his words are not controlled or interpreted by plain implication arising from other parts of the same instruments, there is in my judgment no legitimate power in any court of construc- tion to resort to the surrounding circumstances or to the character or position of the jmrties, or to the probability of intention, or the current of authorit}', or to do anything but give effect to the very words." (e) 29 Car. 2, c. 3, s. 8 ; Gascoigne v. Thwing (1686), 1 Vmii. 366 ; Willis v. Willis (1740), 2 Atk. 71 ; Cook v. Jhttchinson (1836), 1 Keen, 42. As to parol evidence ex])lanatory ol a tenitdors intention, t^ce Dock- sey V. Docksey (1708), 2 Eq. Cas. Abr. 506 ; North v. Crom'pion (1671), 1 Ch. Cas. 196; Wahon\. WoUon (1807), 14 Ves. 322; Lnng- ham\. .Sanford {IS\1), 17 Ves. 435; Lynn v. Beaver (1823), Turn. & liuss. 63 ; and Biddiilph v. Willianis (1875), 1 Ch. D. 203. (/) (1871) L. R. 6Ch. 512,618. Equitable Interest not Wholly Disposed of. 161 Thus, where real estate was devised to " my trustees," but Art. 27. no trusts were declared in relation to it, it was held that the trustees must hold it in trust for the testator's heir. For by tJugtees**' the expression " trustees," unexplained by anything else in eo nomine. the instrument (r/) all notion of a beneficial interest being intended in their favour was negatived (//)• Again, a testator devised and bequeathed all his estate and Devise upon effects to A. and B., their heirs, executors, and administrators, ,\'^"^i!ired'^ upon trust to convert his personal estate, and to stand possessed of the proceeds and of the residue of his estate and effects, upon trusts only applicable to personalty. It was held that the real estate of the testator passed to the trustees by the use of the word " devise " in the gift, and the word " heirs " in the limitation ; but that as the trusts were rigidly and exclusively applicable to personal property, and as the trustees had been designated by that name, and so could not take beneficially, there was a resulting trust of the real estate in favour of the settlor's heirs (i). Paeagkaph (1) (b). So where there is a devise to A. upon trust to pay debts. Residue after or to answer an annuity, there is a resulting trust of what of^express"^ remains after payment of the debts or satisfaction of the trust. annuity (/t;). And, on similar principles, where there was a trust for a widower until he should die or marry again, and ujjon his death the property was to be held in trust for his children (the will not saying what was to be done with it in the event of his second marriage), it was held that upon his marrying again there was a resulting trust of the income in favour of the settlor's next of kin during the residue of the widower's life (l). But although this case was doubtless correct on the assumption that the gift over took effect only on death, it would appear that that assumption was wrong, and that on the authorities and as a matter of interpretation it took effect on death or marriage {m). {g) As, for instance, if the White (1820), 1 Jac. & W. 583 ; expression is used with reference Lloyd v. Lloyd (1869),L. R. 7Eq. to one only of two separate funds 458 ; cf. D'Almaine v. Moseley (Batteley v. Windle (1786), 2 (1853), 1 Drew. 629 ; Coard v. Bro. C. C. 31 ; Pratt v. Sladden Eoldernesse (1855), 20 Beav. 147. (1807), 14 Ves. 193; Gibbs v. (k) King v. Denison (1813), 1 Eumsey (1813), 2 Ves. & B. 294). Ves. & B. 260 ; Watso7i v. Hayes {h) Dinvso7iY. Clarke {1811), 18 (1839), 5 Myl. & Cr. 125; but Ves. 247 ; Barrs y. Fewkes (1864:), see contra, Croome v. Croome 2 H. & M. 60 ; and see Ellcock v. (1889), 61 L. T. 814. Mapp (1851), 3 H. L. Cas. 492. {I) Be Wyatt, Gotvan v. White (i) Longley v. Longley (1871), (1889), 60 L. T. 920. L. R. 13 Eq. 133; Dimnage v. (m) See Upon w Broivn {1819), 152 Constructive Trusts. Art. 27. Ko resulting trust where it appears that donee was to take beneficially. Resulting trusts of voluntary contributions for assisting distressed individuals. On the other hand, th'ere will be no resulting trust where a contrary intention can be collected. Thus, where debtors assigned their property to trustees in trust to sell, and divide the proceeds amongst their creditors in rateable proportions according to the amounts of their respective debts, it was held by the House of Lords that there was no resulting trust in favour of the debtors, in the event of there being more than sufficient to pay twenty shillings in the pound (»)• This decision was, however, founded entirely on the construction of the particular deed, and turned apparently to some extent upon the fact that all the best precedents contained an express trust of any surplus in favour of the debtors. It must, therefore, not be rashly assumed that the same decision would be arrived at if, on the language of another creditor's deed, it should appear that the object was to pay debts (or a dividend on debts), and not to assign the property for better or for worse by way of accord and satisfaction. It may be observed that where, under a similar assignment to that mentioned in the last illustration, there is not enough to pay all the creditors in full, any unclaimed dividends must be applied in augmenta- tion of the dividends of the creditors who do claim (o). It is sometimes a question of difficulty whether the balance of a fund formed by means of voluntar_y contributions for the relief of particular individuals (and therefore not falling within the legal conception of a charitable trust), results jno rata to the contributors or not. In Be Abbott's Trust, Smith v. Abbott (p), a fund had been subscribed for the maintenance of two distressed ladies, and on the death of the survivor, Stirling, J., held that the balance resulted to the subscribers. On the other hand, in lie Andrew's Trust, Carter v. Andrew (q), where ii fund had been subscribed solely for the education of the children of a distressed clergyman and " not 12 Ch. J). 872, and TJnderMll v. Eoden (1876), 2 Ch. D. 494, and cases there cited ; and Be AkeroycVs Settlement, Foberts v. Akeroyd, [1893] 3 Ch. 363. (n) Smith v. Cooke, [1891] A. C. 297. It is difficult, if not impossible, to reconcile this case with Green v. Wynn (1869), L. R. 4 Ch. 204, which does not seem to have been quoted to their lord- sliips. Lord Halsbury spoke, in his judgment, of it being the " ordinary and familiar method in Rucli cases to expresn a resulting trust on the face of the instru- ment." This, at first sight, seems to be inconsistent with the idea of a resulting trust ; but doubtless his lordship iised the phrase " resulting trust," not in the narrow teclmical sense of a constructive resulting trust, but in the wider, original ety- mological sense, of a trust (wliether express or implied) springing back, or resulting, to its creator. (o) Wild V. Banning (1866), L. R. 2 Eq. 577. (p) [1900] 2 Ch. 326. iq) [1905] 2 Ch. 48, Equitable Interest not Wholly Disposed of. 153 for equal division among them," Kekewich, J., held that when Art. 27. their education was completed there was no resulting trust of the balance, and that it was divisible equally among the children, on the ground that education was merely the special purpose assigned for the gift — the motive — and that the sub- scribers parted with all interest in the money when they gave it. This seems to be common sense, but the distinction between the two cases is somewhat fine and seems to consist only in the fact that the first fund was subscribed for the personal siipjyort of living ladies and not for the benefit of their next of kin, whereas in the second case the money was given for the benefit of living children generally with special reference to their education. Where there is a devise to A., charged with the payment of charge does debts and legacies (r), or charged with the payment of a con- "^^ imply tingent legacy (s) which does not take effect, there will be no trust oE° resulting trust ; but the whole property will go to the devisee '"^s^^"'^' beneficially, subject only to the charge. And the same result will follow even where property is devised to A. " upon trust " to pay specific legacies, if on the whole will it appears that the testator merely meant to charge the legacies on the proper t,y (f). In all such cases the inference is that the donee was to take everything not required to satisfy the charge. Paragraph (1) (c). Where lands have been conveyed to a trustee but the trusts Lands vested have not been manifested and proved by a signed writing in Ij^^^^^o*^^' accordance with the Statute of Frauds, there will be a result- written trust, ing trust to the settlor (»). So, if a declared trust is too uncertain or vague to be Uncertainty executed (r), or cannot be carried out by reason of lapse {y), °j express or by complete failure of beneficiaries {£), or otherwise, or trust, becomes in the event too remote (a) ; then, as it is expressed (r) King v. Denison (1813), 1 (x) Stubbs v. Sargon (1837), 2 Ves. & B. 260 ; Wood v. Cox Keftii, 255 ; Morice v. Bishop of (1837), 2 MyL & Cr. 684. Durham (1804), 9 Ves. 399, and (s) Tregonwell v. Sydenham (1805),' 10 Ves. 522 ; Eendall v. (1815), 3 Dow. 194. Granger (1842), 5 Beav. 300. (t) Croome v. Croome (1889), (y) AcJcroi/d v. Smithson 61 L. T. 814; Re West, George (1780). 1 Bro. C. C. 503; Spink V. Grose, [1900] 1 Ch. 84. v. Lewis (1791), 3 Bro. C. C. 355. (m) Bxidkin v. Dolman (1876), {z) Hedderwick's Trustees v. 35 L. T. 791 ; or Statute of Wills ; Hedderwick's Executors, [1910] Be Boyes, Boyes v. Carritt (1884), Sc. Cases, 333. 26 Ch. D. 531 ; and Be King's (a) Tregonwell v. Sydenham Estate (1888), 21 L. R. Ir. 273. (1815), 3 Dow. 194, 210. 154 Constructive Trusts. Art. 27. Total failure of consideration for express trust. on the face of the instrument that the trustee was not intended to take beneficially, there will be a resulting trust. Thus, where a trade union \Yas dissolved, and no provision was made by its rules for the distribution of its surplus assets, it was held that there was a resulting trust in favour of the members in the proportions in which they had contributed to its funds {h). So where a settlement is executed in contemplation of a marriage which is subsequently broken off, there is a total failure of the consideration on which the settlement was based, and the property results to the settlor (c). And it has been held that the same result follows where the marriage is declared to be a nullity ((/). But this is subject to the powers vested in the Divorce Division by 22 & 23 Vict. c. 61, s. 5, and 41 & 42 Vict. c. 19, s. 3, as to which see p. 93, note (r), ante. Evidence not admissible where donee is a trustee on the face of settlement. Evidence admissible in other cases. Paragraph (2). Where a testator bequeathed money to D. absolutely, " trusting that she will carry out my wishes with regard to the same, with which she is fully acquainted," it was held (1) that it was clear on the face of the will that D. did not take the whole beneficially ; (2) that therefore parol evidence was not admissible to show that the testator's intention was that she should take beneficially ; and (3) that in accordance with paragraph (1) (b), supra, after satisfj'ing the purposes communicated to her by the testator she was beneficially entitled to the balance, and that there was no resulting trust (f). But where a person purchased sums of stock in the names of herself and the son of her daughter-in-law, verbal evidence was admitted to rebut the presumj)tion of a resulting trust (arising under Art. 29, infra), because there was nothing to show on the face of the instrument that the son of the daughter- in-law was merely a trustee. James, L.J., said : " "Where the {b) Re Printers, etc., Society, \ 185)9] 2 Ch. 184 ; distinguishing Cnnndck v. Edwards, [ I8<)6] 2 Ch. G79, whoie under tlic special circuinstances no lesulting trust arose. See also Be Wihoch-, Wilcoch- V. Johnson (1890), 62 L. T. 317, where there was an ultimate trust contained '"in a settlement of even date," which was never in fact executed. (c) Esaery v. Cowlard (1884), 26 Ch. D. 191 ; Bo7id v. Walford (1886), 32 Ch. D. 238. But see McDonnell v. Ilesilrige (1852), 16 Beav. 346, which appears to be inconsistent witli the modern ca.ses ; see p. 93, tvnte. (d) lie Garneti, Richardson v. Greene]) (1905), 93 L. T. 117; but aeelhmbary. Dunbar, [1909] 2 Ch. 639. (e) Irvine v. Sullivan (1869), L. K. 8 Eq. 673. Equitable Interest not Wholly Disposed of, 155 Court of Chancery is asked, on an equitable aasinnption or pre- Art. 27. sumption, to take away from a man that which, by the common law of the land, he is entitled to, he surely has a right to say * Listen to my story as to how I came to have it, and judge that story with reference to all the surrounding facts and circumstances ' " ( /). So evidence is admissible to rebut the legal presumption as to part only — for instance, to prove that the donee was intended to take a life interest, although there is a resulting trust as to the remainder ; and vice versa {(j). Art. 28. — Remhiufi Trusts where Trusts declared arc lUegcd. When a person has intentionally created an executed trust ill) for an illegal consideration or purpose, then (if the trustee or beneficiary expressly relies (?') upon the maxim " n? pari delicto, potior est conditio possidentis''^) the settlor cannot recover it (/.•) under a resulting trust unless : (a) the illegal purpose is not carried into execu- tion (/) ; or (b) the effect of allowing the trustee to retain the property might be to effectuate an unlawful (/) Fowkes V. Pascoe (1875), 391 ; Taylor v. Chester (1869), L. E. 10 Ch. 343, 349. L. E. 4 Q. B. 309 ; Ayerst v. (g) Lane v. DigJiton (1762), Jenkins (1873), L. E. 16 Eq. Ambl. 409 ; Bider v. Kidder 275. (1805), 10 Yes. 360; Benbow v. (/) Symes v. Hughes (1870), Townsend (1833), 1 Myl. & K. L. E. 9 Eq. 475; ChiJders v. 506 ; London and County Bank- Childers (1857), 1 De G. & J. itig Co. V. London and Eiver 482 ; Davie s v. Otty (1865), 35 Plate Bank (1888), 21 Q. B. D. Beav. 208; Birch\. Blagrave at p. 542; Be Blake, Blake v. (1735), Ambl. 264; Platamone Power (1889), 60 L. T. 663. v. Stajyle (1815), G. Coop. 250. (h) No question of resulting In the United States of America trust can accrue where an illegal this distinction does not prevail. trust is executory. In such There the question whether the cases it simply cannot be illegal purpose has failed or enforced. succeeded is deemed to be (i) Haigh v. Kaye (1872), immaterial, and the only ques- L. E. 7 Ch. 469. tion considered is whether the (/c) Duke of Bedford v. Coke irust is executed or executory. (1751), 2 Ves. Sen. 116; CuHis In the former case there is no V. Perry (1802), 6 Ves. 739 ; resulting trust ; in the latter the CoUington v. Fletcher (1740), 2 expressed trust will not be Atk. 155 ; Brackenbury v. enforced. Brackenbunj (1820), 2 Jac. & W. 156 Constructive Trusts. Art. 28. Conveyance to qualifj' for game licence or office. Settlement for immoral consideration. object, to defeat a legal prohibition, or to protect a fraud (?«). Thus where a father granted land to his son, in order to give him a colourable qualification to shoot game under the old game laws, and without an}' intention of conferring any beneficial interest upon him, the court would not enforce any resulting trust in favour of the father. For he and the son were in pari delicto, and there was no detriment to the public in allowing the son to retain the estate (n). Of course, if there had been no illegality (if, for instance, a l)are legal estate had l)een a sufficient qualification), there would have been a resulting trust (o). In Ai/erst v. Jenkins (p), a widower, two days before going through the ceremony of marriage with his deceased wife's sister (which ceremony was known to both parties to be invalid), executed a settlement by which it was recited that he was desirous of making a provision for the lady, and had transferred certain shares into the names of trustees, upon the trusts thereinafter declared, being for the separate and inalien- a])le use of the lady during her life, and after her death as she should by deed or will appoint. They afterwards lived together as man and wife until the widower's death. Some time afterwards, his personal representatives instituted a suit to set aside the settlement, on the ground that it was founded on an immoral consideration. Lord Selboene, however, said : "Relief is sought by the representative, not merely of a particeps criminis, but of a voluntary and sole donor, on the naked ground of the illegality of his own intention and purpose ; and that, not against a bond or covenant or other obligation resting in fieri, but against a completed transfer of specific chattels, by which the legal estate in those chattels was absolutely vested in trustees for the sole benefit of the defendant. I know of no doctrine of public policy which requires or authorises a court of equity to give assistance to such a plaintiff under such circumstances. When tlie immediate (m) See per Lord Selborne in Ayerst v. JenUns (1873), L. R. 16 Eq. at p. 283 ; and see per Knight-Bruce, L..T., in Reynell V. Spnjc (1852), 1 Dc (1. M. & G. 000, where lie said : " Wliere the parties are not in pari delicto, and where ])ublic policy is consideied as advanced by allow- ing either party, or at least the more excusable of the two, to sne for relief, relief is given to him." And see also, to same effect, Low v. Law (1735), 3 P. Wms. 391, and 8t. John v. 81. John (18U5), 11 Ves. 526. (n) J'trackenbiiri/ v. Bracken- bury (1820), 2 .Jac. & W. 391. (o) ChiUicrs v. Childers (1857), 1 De G. & J. 482. (2^) (1873) L. R. 16 Eq. 275. Eesulting Trusts where Trusts Illegal. 157 and direct effect of an estoppel in equity against relief to Art. 28. a particular plaintiff, might be to clfectuate an milairj'id object, or to defeat a legal prohibition, or to protect a fraud, such an estoppel may well be regarded as against public policy. But the voluntary gift of part of his own property by one particeps criudiiis to another, is in itself neither fraudulent nor prohibited by law ; and the present is not the case of a man repenting of an immoral purpose before it is too late, and seeking to re- call, while the object is yet unaccomplished (q), a gift intended as a bribe to iniquity. If public policy is opposed, as it is, to vice and immorality, it is no less true, as was said by Lord Tkuko in Beut/oii v. Nettle fold (/•), that the law in sanctioning the defence of particeps criminis does so on the grounds of public policy, — namely, that those who violate the law must not apply to the law for protection." In the more recent case of Phillips V. Probyn (s). North, J., distinguished Ayerst v. Jenkins on the ground that in the case before him the settle- ment was made in consideration of a contemplated and then illicit marriage with a deceased wife's sister, and that there was a total failure of consideration. It is, however, humbly submitted that the settlement in Ayerst v. Jenkins was also made in contemplation of, and as part of, the arrangements consequent on such a marriage, and that there is really no valid distinction between the two cases. But where (under the old law invalidating such marriages) property was transferred to trustees in trust for the settlor until an intended marriage with his deceased wife's sister should be solemnised, and then in trust for the lady and issue of the marriage, the trust was void, inasmuch as such a marriage could not take place {t), and therefore the condition precedent could never be performed. Nor (it is conceived) does the Deceased Wife's Sister's Marriage Act, 1907 (7 Edw. VII., c. 47), affect such settlements with regard to marriages solemnised prior to the Act, as it is expressly enacted by sect. 2 that the Act is not to affect any right or title to property (^0- Sub-Paragraph (a). But where an illegal purpose is only contemplated, there is Fraudulent a locus poenitentice. Thus, in Symes v. Hughes (r), the plaintiff, ^o^^^'cy'-^nce. being in pecuniary difficulties, assigned certain leasehold (g) As in Symes v. Hughes 13 Cli. D. 202 ; Neale v. Neale (1870), L. R. 9 Eq. 475. (1898), 79 L. T. 629. (r) (1850) 3 Mac. &G. at p. 102. {u) See Be Whitfield, Hill v. is) [1899] 1 Ch. 811. Mathie, [1911] 1 Ch. 310. it) Pawson V. Brown (1879), {v) (1870) L. R. 9 Eq. 475. 158 Constructive Trusts. Art. 28. Conveyance to avoid forfeiture for felony. Conveyance to escape serving as sherifE. property to a trustee with a view of defeating his creditors. Two and a half years afterwards lie was adjudicated bankrupt, but obtained the sanction of his creditors to an arrangement by which his estate was re- vested in him, he covenanting to prosecute a suit for the recovery of the assigned property, and to pay a composition of two-and-sixpence in the pound to his creditors, in case his suit should prove successful. Lord PiOMiLLY, M.E., in delivering judgment, said : " Where the purpose for which the assignment was given is not carried into execution, and nothing is done under it, the mere intention to effect an illegal object when the assignment was executed does not deprive the assignor of his right to recover the pro- perty from the assignee who has given no consideration for it." So, again, the plaintiff, being apprehensive of an indictment for bigamy (conviction for which then involved forfeiture of property), conveyed his real estate to the defendant, on a parol agreement to re-transfer when the difficulty should have passed over. It subsequently transpired that the plaintiff was not liable to be indicted, and thereupon he filed a bill praying for a re-transfer of his property. It was held, that although there was no enforceable express trust (inasmuch as there was no written proof of it), yet there was a resulting trust to which the statute did not apply ; and as there was no illegality in fact, but only in intention, the court ordered the transfer prayed for (x). And where a father conveyed the legal estate in property to his daughter, with the intention of thus escaping from serving as sheriff, but afterwards repented, and paid the fine. Lord Hakdwicke said : " I am of opinion that the conveyance ought not to take effect against his intention unless lie had actually taken the oath " that he had not the requisite qualification (?/). Attempt to evade rule against perpetuities or accumula- tions. Sub-Paragraph (b). There will also be a resulting trust where otherwise the illegal object might be attained. Thus, where a settlor attempts to settle property so as to infringe the policy of the law with regard to perpetuities, such trusts will not only not be carried hito effect, but the person nominated to carry them out is held to be a mere trustee for the settlor or his (x) Bavies v. Otty (1865), 35 Beav. 208. Cf. Field v. Lonsdale (1850), 13 Beav. 78, where, to evade the statute restricting the amount of each person's account, a man had deposited money in the name of his sister in a savings bank and was yet held entitled to it. (y) Birch v. Blngrnve (1735), Ambl. 264. Resulting Trusts where Trusts Illegal. 150 representatives. For the attemiit was made either through Art. 28. ignorance or carelessness, or else with a direct intention to contravene the law. In the former case, as there would he no delictum, the usual maxim would not apply. In the latter, equity would not allow the trustee to retain the property and so put it in his power to carry out the illegal intentions of the testator, and to defeat the policy of the law(^). So where the settlor directs accumulations heyond the statutory period, there is a resulting trust between the end of the twenty-one years and the period for which the accumulations were directed (a). And so, again, where lands, or the proceeds of land, were Attempt devised to charitable uses, or were devised to one who was, Mo^i-tmam under a secret agreement with the testator, pledged to apply Acts, them to charitable purposes, then, notwithstanding the im- proper intentions of the testator, there was a resulting trust. For the result of allowing the gift to stand would probably have been to effect an object prohibited by law (b). But of course this is no longer so since the Mortmain and Charitable Uses Act, 1891 (54 & 55 Vict. c. 73). Art. 29. — Besulting Trusts, ivhere Purchase made in Another s Name. (1) When real or personal property (c) is vested in the purchaser and others, or in another or others alone, and whether jointly or successively, a resulting trust will be presumed in favour of the person who is proved (by parol (d) or other evidence) to have paid the purchase-money (c) in the character of purchaser (/'). (z) Carrickv. Errington {1126), v. Dunnett (1878), 8 CIi. D. 430. 2 P. Wms. 361; Tregonwell v. (c) Dyer v. Dyer (1788), 2 Cox, Sydenham (1815), 3 Dow. 194; 92; Ebrand v. Dancer (1680), 2 Qibhs V. Bmnsey (1813), 2 Ves. Ch. Ca. 26 ; Wheeler v. Smith & B. 294. (1860), 1 Giff. 300. {a) Be Travis,- Frostv. Greatorex, (d) 29 Car. 2, c. 3, s. 8 ; Eyall [1900] 2 Cli. 541. And the same v. Eyall (1740), 1 Atk. 59 ; Lench rule applies where a tenant for v. Lench (1805), 10 Ves. 511 ; life disclaims : Be Scott, Scott Bochefoacauld v. Boiistead, [1897] V. Scott, [1911] 2 Ch. 374. 1 Ch. 196. (&) Arnold Y. Chapman (1748), (e) Dyer v. Dyer, supra; Wrai/ 1 Ves. Sen. 108 ; Adlington v. v. Steele (1814), 2 Ves. & B. 388. Gann (1740), Barn. Ch. 130 ; (/) Eochefoiicauld v. Boiistead, Springett v. Jenings (1870), L. R. supra. 10 Eq. 488 ; but see Bowbotham 160 Constructive Trusts. Art. 29. (2) This presumption may be rebutted — (a) by parol {(j) or other evidence that the purchaser intended to benefit the others ; or (b) by the fact that the person in whom the property was vested was the lawful (//) wife (/) or child of the purchaser (k), or was some person towards whom he stood /// loco parentis (/), or was trustee of a settlement by which he previously settled property (m). In any of these cases s. prima facie (but rebuttable (») ) presumption will arise that the purchaser intended the ostensible grantee or grantees to take beneficially. (3) Similar principles apply to voluntary transfers made by owners of personal estate ; but there is no pre- sumption of a resulting trust in a voluntary conveyance of real estate to another's use(o). Where purchase- money fur- nished by two persons. Paragraph (1). Where the purchase-money is advanced, partly by the person in whose name the property is taken, and partly by another ; then, if they advance it in equal shares, they will (in the absence of evidence or circumstances showing; a contrary intention {})) ) take as joint tenants, because the advance being equal the interest is equal ; but if in unequal shares, then a trust results to each of them, in proportion to his advance (q). (g) Eider v. Kidder (1805), 10 Ves. 360 ; Standing v. Bowring (1885), 31 Ch. D. 282. (h) See Ee Scottish Equitable Life Assurance Society {Policy No. 6402), [1902] 1 Ch. 282. (i) Ee Eykyn (1877), 6 Ch. D. 115; Brew v. Martin (1864), 2 H. & M. 130. (A:) Soar v. Foster (1858), 4 Kay & J. 152 ; Beck ford \\ Beck- ford (1774), Lolit. 490. (I) BecJyfordv. Beck ford, siqrra; Currant v. J ago (1844), 1 Coll. C. C. 261 ; Tucker v. Burrow (1865), 2 Hem. & M. 515; Forrest V. Forrest (1865), 13 W. R. 380. (m) Ee Curteis (1872), L. 11. 14 Eq. 217. in) Tumbridgt; v. Care (1871), 19 W. It. 1047 ; Williams v. Williams (1863), 32 Beav. 370. (o) As to personal estate, per Cotton, L.J., in Standing v. Bowring (1885), 31 Ch. D. 282 ; and j)er Jessel, M.R., in Fowkes V. Pascoe (1874), L. R. 10 Ch. 345, n. ; l)ut see James, L.J., dubitante, S. C, at p. 348, and contra, per Richards, C.B., in George v. Howard (1819), 7 Price, 646. As to real estate, per Lord Hakdwicke, in Young v. Peachy (1741), 2 Atk. at p. 257 ; and per James, L.J., in Fowkes v. Pascoe, supra. ip) iSee Eobinson v. Preston (1858), 4 Kay & J. 505 ; Edwards V. Fashion (1712), Pr. Ch. 332; Lake v. Gibson (1729), 1 Eq. Cas. Abr. 291 ; Bone v. Pollard (1857), 24 Beav. 283. {q) Lake v. Gilixon, supra ; Jiigden v. Willier (1751), 3 Atk 735. Kesulting Trusts (Purchase in Another's Name). 161 But if one pay the purchase-money at the request of and by Art. 29. way of loan to the person in whose name the property is taken, there will be no resulting trust. For the lender did not advance the purchase-money as purchaser (7*), but merely as lender. Paragraph (2). In Stand in (J \\ Boicrim/ (s) the facts were as follows: The Evidence of plaintiff, a widow, in the year 1880 transferred i;6,000 consols '^Sl'''' ^"^ into the joint names of herself and her godson, the defendant. This she did witJi the express intention that the defendant, in the event of his surviving her, should have the consols, but that she herself should retain the dividends during her life. She had been previously warned that her act was irrevocable. In delivering judgment, Cotton, L.J., said : " The rule is well settled, that where there is a transfer by a person into his own name jointly with that of a person who is not his child, or his adojDted child, then there is prima facie a resulting trust for the transferor. But that is a presumption capable of being rebutted, by showing that, at the time, the transferor intended a benefit to the transferee ; and in the present case there is ample evidence that at the time of the transfer, and for some time previously, the plaintiff intended to confer a benefit, by this transfer, on her late husband's godson." So, in Wheeler v. Smitli (t), a man had transferred stock into the joint names of himself and his sister, and received the income during his life. Here, 2'»'imd facie, there was a resulting trust ; yet, on the evidence of letters written by the deceased, it was held that he meant his sister to take beneficially by survivorship, and consequently the inference of a resulting trust was rebutted. In Crabh v. Crahh(u), a father transferred a sum of stock Advancement from his own name into the joint names of his son and of a " ^*^"' broker, and told the latter to carry the dividends to the son's account. The father, by a codicil to his will executed subse- quently, bequeathed the stock to another ; but it was held that the son took absolutely. The Master of the Eolls said : " If the transfer is not ambiguous, but a clear and unequivocal act, (r) Aveling v. Knipe (1815), (1735), Ambl. 264; Standing v. 19 Ves. 441. Bowring (1885), 31 Ch. D. 282 ; (s) (1885) 31 Ch. D. 282 ; and and Batstone v. Salter (1875), see also Fowkes v. Pascoe (1875), L. R. 10 Ch. 431, where a mother L. R. 10 Ch. 343. transferred stock into the joint (t) (1860) 1 Giff. 300. names of herself, her daughter, (u) (1834) 1 Myl. & K. 511 ; and her son-iu-law. and see also Birch v. Blagrave T. M 162 Constructive Trusts. Art. 29. Rebutting evidence of advancement. Surrounding circum- stances. as I must take it on the authorities, for explanation there is no place. The transfer being held an advancement, nothing contained in the codicil, nor any other matter ex post facto, can ever be allowed to alter what has been already done." In short, a resulting trust will not be allowed to arise merely because a donor subsequently changes his mind. On this ground it has been held that a subsequent decree of nullity of marriage does not rebut the presumption of advancement where the husband had transferred property into the name of the wife {x). But a declaration made by the father at or hcfove the date of the purchase, is admissible to rebut the presumption, although it might not be good as a declaration of trust, on account of its not being reduced into writing. For, " as the trust would result to the father were it not rebutted by the sonship as a circumstance of evidence, the father may counteract that circumstance by the evidence arising from his parol declaration "(//). Surrounding circumstances may also tend to rebut the pre- sumption. Thus, a father, upon his son's marriage, gave him a considerable advancement, having several younger children who had no provision. He subsequently sold an estate, but £500 only of the purchase-mone}' being paid, he took a security for the residue in the joint names of himself and his said son. He himself, however, received the interest, and a great part of the principal without any opposition from the son, as did his executrix after his death, the son writing receipts for the interest. Under these circumstances it was held that the son took nothing ; the Lord Chancellor saying : " Where a father takes an estate in the name of his son, it is to be considered as an advancement ; but that is liable to be rebutted by subsequent acts. So if the estate be taken jointly, so that the son may be entitled by survivorship, that is weaker than the former case, and still depends on circumstances. The son knew here that bis name was used in the mortgage, and must have known whether it was for his own interest or only as a trustee for the father ; and instead of making any claim, his acts are very strong evidence of the latter ; nor is there any colour why the father should make him any further advancement when he had so many children unprovided for " {z). The dictum of the learned Chancellor, that the (x) Dunbar v. Dunbar, [1909] (1863), 32 Beav. 370. 2 Ch. 639. (z) Pole v. Fole (1748), 1 Ves. [y) Williams v. Williams Sen. 76 ; Stocky. McAvoy {IS12), Eesulting Trusts (Purchase in Another's Name). 163 presumption ma}^ be rebutted by subsequent acts, cannot be Art. 29. taken to mean subsequent acts of the father, ^vhich are only admissible against, and not for, him (a); but must, it is apprehended, refer only to subsequent acts of the son (and only to them when there is nothing to show that the father did actually intend to advance the son(/^)), or to subsequent acts of the father so acquiesced in by the son, as to raise the presumption that the son always knew that no benefit was intended for him. It is also to be remarked, that the fact of the father having previously made provision for the son, would not of itself have been sufficient to rebut the usual pre- sumption, although, taken together with other circumstances, it was a strong link in the chain (c). So, where a man directed his agent to invest stock in the Where ioint names of himself and his wife in trust for their son, exi)res.s trust '' . . ' or stock and the agent made the investment but could not (owing to the impossible Bank of England's refusal) fix a trust on it, it was held °;'"'»" J" '"^'l^^ 9 _ ^ ' or company. that any claim of the wife was rebutted, and that the trust being incomplete the son could not claim either {(J). So the relationship of solicitor and client between the son Whore the and the parent, has been considered a circumstance that will, f°ti/eVs of itself, rebut the presumption of advancement {e). solicitor. Again, a sum of consols was vested in the trustees of a Augmenta- marriage settlement upon the usual trusts. The husband ge*^"i°i directed the bankers who received the dividends (and paid property, them to him as tenant for life under a power of attorney from the trustees), to invest an additional sum of ii2,000 consols in the names of the same trustees, so that they might receive the dividends as before. This was done, and the husband received the income of the whole during his life. No notice of the new investment was ever given to the trustees. It was held that there was no resulting trust of the £2,000 to the husband, but that it became subject to the trusts of the settlement as an augmentation of the trust fund ( / ). In Pw l)e Visme (g) it was laid down that, where a married Whether woman had, out of lier separate estate, made a purchase in the of a^dvanee-* meat by L. K. 15 Eq. 55 ; Bone v. Pollard (c) See ?;er Lord LouGll- married (1857), 24 Beav. 283; and borov an, Bedington v. Redington ^vmsin. Marshal v. Crutwell (1875), L. R. (1794), 3 Ridge, P. C. at p. 190. 20 Eq. 328. (cZ) Smith v. Warde (1845), 15 (a) Bedington v. Bedington Sim. 56. (1794), 3 Ridge, P. C. at p. 177. (e) Garrettv. Wilkinson (IS4:8), {b) Sidmouth v. Sidmouth 2 De G. & Sm. 244, sed qucere. (1840), 2 Beav. 447 ; Hepworth (/) Be Curteis (1872), L. R. 14 V. Hepworth (1870), L. R. 11 Eq. Eq. 217. 10. (g) (1863) 2 De G. J. & S. 17. M 2 Ifi4 Constructive Trusts. Art. 29. name of her children, no i)resumption of advancement arose, inasmuch as a married woman was under no obhgation to maintain her children. This case was followed b^'the late Sir George Jessel, M.R., in Bonnet v. Bennct{h), where a mother was entitled to property under the Married Women's Property Act, 1870, by which married women were made as liable an widows for the maintenance of their children. The Master of the Piolls, however, gave it as his opinion, that the presumption of intention to advance depended, not on the liahiliti/ to maintain, but on the moral obligation on the part of a father to provide a provision or fortune for a child ; and that there was no such obligation recognised on the part of a mother. If that be so, the law still remains the same, notwithstanding that the Married' Women's Property Act, 188-2 (45 & 46 Yict. c. 75), renders a wife as liable for the maintenance of her children as a husband is. However, it is conceived that the point is still an open one, as Sir George Jessel's judgment is admittedly in direct conflict with that of the late Yice- Chancellor Stuart in Sai/rc v. Hiii/Jics (i), where the presumption of intention to benefit was based by the Yice- Chancellor rather on motive than on duty. His lordship said : "Maternal affection as a motive of bounty is perhaps the strongest of all, although the dittij is not so strong as in the case of a father, inasmuch as it is the duty of a father to advance his child. That, however, is a moral obligation, and not a legal one." On the whole, it is with much diffidence conceived that if the authorities should hereafter come under review, the views of the late Yice-Chancellor Stuart would be found to have as much to be said in their favour as those of Sir George Jessel. Neither judge bases the presumption on legal obligation. Both admit that the presumption is founded on a moral presumption of intention. But if so, surely there is as much moral presumption of an intention by a motlier to benefit her offspring as there is in the case of a father. And if neither law nor equity imposes any obligation on a father to advance his child, it is difficult to see on what principle an equity judge should invent an imperfect obligation of this kind as a foundation for a presumption of intention to benefit, while at the same time rejecting a similar moral obligation on the part of a wealthy mother. In reason and in custom, there is assuredly as much obligation on the part of a mother nJto has {h) (1879) 10 Ch. D. 474. to be the same. See also Be (/) (1868) L. R. 5 Eq. 376. Onne, Evans v. .Maxwell (1883), This was the case of a timlowed 50 L. T. 51. mother, but the principle appears Eesulting Trusts (Purchase in Another's Name). 165 the command of inoiie I) to benefit her children with it as there Art. 29. is in the case of a father. It must in any case be borne in — mind, that even if the view of Jessel, M.R., be the correct one, yet if it be proved aliunde that the mother did in fact intend to benefit her offspring, there will be no resulting trust (A). Although, where a husband purchases property in his wife's Primd facie name, there is a piimd facie presumption of an intention to o£^ife"uVdn°'^ advance the wife, the converse does not hold good. Therefore, trust in if property is purchased in the name of the husband out of wVfe'whose money belonging to the separate estate of his wife, there is a money is presumption of a resulting trust in favour of the wife, which hulband'^ is, of course, like all other cases of resulting trust, capable name. of being rebutted by parol or other evidence showing that it was intended to be a gift. It was formerly thought that this presumption only applied where the property was purchased with the wife's capital, and not where it was purchased with her income. But in the more recent case of Mercier v. Mercieifl) the Court of Appeal laid it down that there is no such inherent distinction between capital and income except in degree. RoMER, L.J., said: " No doubt, in certain cases, in considering whether a gift w'as intended, the fact of the money having been income received by him with her consent, ma}^ be material in respect of the weight of evidence; but there is no other distinction, so far as I am aware, between ca2)ital and income." In short, it would seem that where there is no evidence one way or the other, a resulting trust will be presumed whether the propert}^ was paid for out of capital or income ; but that where there is some evidence of intention to benefit the husband, then the fact that the payment was made out of income will, to some extent, support that evidence. With regard to the presumption of advancement in favour of Advancement persons to whom the purchaser stands- in loco ixirentis, it has "J Persons been held that the presumption arose in the case of an parentis. illegitimate child (?h), a grandchild «7/rH the father icas deadfn), and the nephew of a wife, who had been practically adopted by the husband as his child (o). Rut it would seem that the person alleged to have been i)i hn-o paretitis must have intended to put himself in the situation of the person (k) Beechei- v. 3Ia}oi- (I860), (1858), 4 Kay & J. 152. 2 Drew. & Sm. 431. (n) Ebrand v. Dancer (1680), (l) [1903] 2 Ch. 98. 2 Ch. Cas. 26. (m) Beckford v. Bedford (o) Currant v. Jago (1844), (1774), Lofft. 490 ; Kilpin v. 1 Coll. C. C. 261 ; and soc Be Kilpin (1834), 1 Myl. & K. at Howes, Hawse v. Piatt (1905), 21 p. 542, sed qucere Soar v. Foster T. L. R. 501, the case of a niece. 166 Constructive Trusts. Art. 29. described as the natural father of the child ^vith reference to those parental oftices and duties which consist in iiialniin provisio)! for a cltild. The mere fact that a grandfather took care of his daughter's illegitimate child and sent it to school, has been held to be insufficient to raise the presumption, Page-Wood, Y.-C, saying : " I cannot put the doctrine so high as to hold that if a person educate a child to whom he is under no obligation either morally or legally, the child is therefore to be provided for at his expense " (p). Art. 30. — To whom Propcrtii results. (1) Where a resulting trust arises under an instrument iutcr riros, the beneficial interest results to the settlor himself (<2). Where the instrument is a will, the property results to the heir or devisee of the testator if real estate, or to the residuary legatees or next of kin if personal estate {r), whether the will contains a direction for conversion or not {s). (2) Provided that where, on the true interpretation of the instrument, property is first given to A. absolutely, and then trusts are engrafted or imposed on that absolute interest which fail, the property results to A. absolutely to the exclusion of the donor or the testator's residuary devisees, legatees, heir, or next of kin it). (8) AVhere a resulting trust has once arisen under an instrument which directs a conversion, and the person to whom it results dies before getting it in ; then as between his real and personal representatives it devolves (whether actually converted at the date of (})) Turlcer v. Biinorv (1865), ].ead. ('as. (8th cd.) 394, and 2 Hem. & M. ;j15 ; and see 2)er cases there cited. Jessel, M.K., Bennet v. Bennct (a) Curteis v. Wormald (1878), (1870), 10 (;h. D., p. 477. 10 Ch. D. 172; Achroyd v. {([) Sjjineii V. 1/ ughcs (1870), >Smiihson, Hiipra. 1j. it. 1) Eq. 475 ; Davien v. {t) Lassence v. Tierne)/ (1849), OUif (1865), :i5 Beav. 208. 1 Mao. & G. 551 ; Hancock v. (V) Aclcroydv.Smithson i^nSO), Watson, [1902J A. C. 14. 1 Bro. C. C. 503, 1 Wh. & Tu. To Whom Property Results. 167 his cleatli or not) as if it were actually converted, unless Art. 30. the trust for conversion has wliolhf failed [it). Paragraph (1). By a marriage settlement, real estate of the husband, and itesuitin-,' personal estate of the wife, are vested in trustees, in trust for ^'""st.under the husliand for hfe, with remainder in trust for the wife for scttienient. life, with remainder upon the usual trusts in favour of the issue of the marriage, without any gift over in default of issue. Upon the death of the wife without issue, the real estate will result to the husband ; and similarly on the death of the husband without issue, the personal estate will result to the wife. A. by his will gives his real estate unto and to the use of iiesultin()2JA. ('. 14. To Whom Property Results. 101) was a gilt over to tlic cliildi-cn of C. : Ilihl, that, the hiiiita- Art. 30. tions after the life estate to S. 1). being void for remoteness, the original gift to her remained intact and passed to her representatives and did not go to the testator's next of kin under a partial intestac}'. Lord D.wey said : " In ray oj)inion it is well-settled law that if you find an absolute gift to a legatee in the first instance, and trusts are engrafted and imposed on that absolute interest which fail, either from lapse or invalidity or any other reason, then the absolute gift takes effect so far as the trusts have failed, to the exclusion of the residuary legatee or next of kin, as the case may be. Of course, as Lord Cottenuam has pointed out in Lassence v. Tlevjiei/ (d), if the terms of the gift are ambiguous, you may seek assistance in construing it — in saying whether it is expressed as an absolute gift or not — from the other parts of the will, including the language of the engrafted trusts. But when the Court has once determined that the first gift is in terms absolute, then if it is a share of residue (as in the present case) the next of kin are excluded in any event. In the present case I cannot feel any doubt that the original gift of two-fifths of the residuary estate to S. D. was in terms an absolute gift to her. The testator uses the words * I give ' and speaks of the shares subsequently as ' allotted ' to her. Mr. Levett contended that there are words in the will which confine her interest in the allotted portions to her life. But that is not what the testator has said ; he has directed that during her life she shall have only the income of Jicr share for her separate use without power of anticipation. But that is quite consistent with a power to dispose of the capital after her death, so far as it should not be exhausted by the trusts declared of it, and with the right of her representatives to claim it. In other words, as between herself and the estate, there is a complete severance and disposition of her share so as to exclude an intestacy, though as between herself and the parties taking under the engrafted trusts she takes for life only " (/;). So where there is a gift to A. for life with remainder to fiift over to his children, with a proviso that if any child dies in A.'s j^tateeon lifetime then the property shall go to the issue of that child, death iicfore the original gift to a child of A. remains absolute if he dies pgri^odTioes in A.'s lifetime icitJtont issue (f). Similarly where there is a not take effect if legatee dies (d) (1849) 1 Mac. & G. 551. (/) Smither v. Willock (1804), wUhout (e) See also Kellett v. Kellett 9 Ves. 233 ; Hodgson v. Smithson issue. (1868), L. R. 3 H. L. 160. (1856), 8 De G. M. & G. 604. 170 Constructive Trusts. Art. 30. Gift to a class or such of tlieni as shall survive A. goes to all if none survive A. Rule equally aj)[)licable to settle- ments inter rtros. Initial difficult}' in all these cases is to determine whether the gift over is a divesting gift or a gift in remainder. devise to A. in fee, with an executoiy limitation over to B. for life if A. dies without issue, the fee remains in A., sul)ject to letting in B.'s life estate (r/). Again, a bequest to several, or to a class, " or to such of them as shall be living at " the period of distribution or any other specified time, is a vested gift to all, subject to being divested for the benefit of those li\'ing at the time indicated. Conse- quently, if none survive, the original vested gift will remain intact, and all will be held to have taken as tenants in common {It). A testatrix bequeathed all her estate except two specified sums to her sister B., and added the words " I would wish my money to be divided in equal shares after my sister's death between my sister G. and my niece H., .shoiihl they fiuvLice Jier." G. and H. both predeceased B. : — Held, by the Court of Appeal in Ireland, that B. took an absolute interest which, though liable to be divested if G. and H. survived her, became indefeasible on her surviving them (i). So, in Crozicr v. Crazier (k), a testator had given all his residue to his wife, " and after her death to be equally divided to the children, should there be any." There were no children, and the coiu't held that the wife took absolutely. The rule equally applies where there is an absolute gift by will which is afterwards settled by a codicil (/). The rule is not confined to wills. Thus, where on the marriage of his daughter a father settled £800 on her and her children, it l)eing held that on the true construction of the settlement he gave her the £800 on condition of its being settled, it followed that on her death without issue the £800 resulted to her estate and not to the father {m). In all these cases, however, the initial difficulty must be borne in mind of determining whether, on the true interpreta- tion of the instrument, there reall}^ was an absolute rfift after- wards partially divested, or whether all that the legatee was intended to take was the restricted interest. Of course, where the gift is by a will, and the partial divesting is by a codicil, there is no difficulty (»), nor where, as in Ilancoeh v. Watson, supra, there are clear words of gift and allotment. But there {g) Gatenhif v. Morgan (1876), 1 Q. B. D. 685. (/t) Browne v. Lord Kenyon (1818), 3 Madd. 410 ; Sturgesa v. I'enreon (1819), 4 Madd.' 411; Belk V. Slack (1836), 1 Keen, 238 ; lie Sanders's Trusts (1866), L. R. 1 Eq. 675 ; Marrioil v. Ahell (1860), L. K. 7 Eq. 478. (i) Monck v. Croker, [1900] 1 Ir. R. 56. (A:) (1873) L. R. 15 Eq. 282. (I) lie Wilcock, Katj v. Dew- hurst, [1898J 1 Ch. 95. {in) Doyle v. Cream, [1905] 1 Ir. R. 252. (n) Norynan v. Kynaston (1861), 3DeG. F. &: J. 29. To Whom Property Results. 171 are numerous cases on the border line wliich nothiiif,' l)uL Art. 30. verbal criticism of the particular instrument will solve ; and, as was said in Lassoicc v. Ticniryio), "in the case of a will containing such a disposition, the intention of the testator is to be collected from the whole will, and not from words which, standing alone, would constitute an absolute gift. In this connection, in doubtful cases, the subsequent disposition of the subject-matter of the gift in every possible event which can arise, forms an important consideration in putting a construction on the instrument ; such a disposition being apparently inconsistent with the intention of giving an absolute interest in the first instance " (j)). Paragraph (3). It is frequently an important question as to what nature How the property directed to be converted assumes in the hands of l'*!^'^^" ^° i- >■ -J _ _ _ whom cou- persons to whom it results. For instance, if, by a will, real verted pro- estate be directed to be sold, and is actually sold, and the \^^\^7 ?"^^*"'^* trusts as to one moiety of the proceeds fail, that moiety will of course result to the testator's heir. But the question then arises, does it become in his hands real or personal estate ? That is to say, in the event of his death before he receives it, does it devolve on Idti heir or his next of kin ? At one time it was considered that there was a difference, as to this, between a resulting trust of converted realty and a resulting trust of converted i^ersonalty. It was thought that as to the former, where a sale of realty was necessary for carrying out the subsisting trusts of a will, that w'hich resulted to the heir was retained by him as personalty, and on his death devolved as such. So far, that is still the law\ But it was also considered that wherever personal estate directed to be converted into land resulted to next of kin, they held it as personalty, although it came to them in the form of land {q). This view was, however, scouted by Jessel, M.H., and finally overruled by the Court of Appeal, in the case of Curtcis v. Wormald{r). The Master of the Rolls said : " Then the next question which arises is, how does the heir-at-law in the first case, or the next of kin in the second, take the undisposed-of interest '? The (o) (1849) 1 Mac. & G. 551. Waters (1857), 26 L. .J. Cli. 624 ; [p) Examples will be foimd iu and Harris v. Newton (1877), 46 Eucker v. Scholefield (1862), 1 L. J. Ch. 268. Hem. & M. 36 ; Qompeiiz v. {q) Head v. Godlee (1859), Gompertz (1846), 2 Ph. 107; Be Johnsi. 536 (overruled). Richards, WilUams v. Gorvin (r) (1878) 10 Cli. D. 172. (1883), 50 L. T. 22 ; Waters v. 17-2 Constructive Trusts. Art. 30. Immaterial that property not actuallj'- couverted if it ought to be. ciiiswer is //'■ talccs it as lie finds it. If the lieif-at-huv becouies entitled to it in the shape of personal estate, and dies, there is no etjuitable reconversion as between his real and personal representatives ; and consequently his executor takes it as l^art of his personal estate. On the other hand, if the next of kin, having become entitled to a freehold estate [under a resulting trust of converted personalty], dies, there is no equity to change the freehold estate into anything else on his death. It will go to the devisee of the real estate, or to the heir-at- law if he has not devised it, and will pass as real estate." And James, L.J., in the Court of Appeal, said : " With all deference to the judgment of Lord Hatherley in Head v. GodU'c (s), it is impossible, I think, to arrive at any other con- clusion than that at which the Master of the Rolls has arrived. It was settled by Cof/an v. Steplieus {t), that what was the right rule as between the real and personal estates where land was directed to be sold, was also the right rule as between the two estates in the case where money was directed to be laid out in the purchase of land. . . . The same principle applies in both cases, which is this, that where j-ou trace property into a man, there is no equity between his different classes of representa- tives as to altering the position in which that property is. If it is money arising from the sale of land, it remains money ; that is to say, the heir-at-law of the person who has become beneficially entitled to it as heir-at-law, has no right to have it reconverted into land. If it is land purchased under a direction to invest in land, the persons interested in the personal estate of the persons who have become entitled to it as next of kin, have no right to have it reconverted into money." The broad statement by Jessel, M.R., in Ctirtcis v. IVormald (quoted in the last illustration), that the party to whom property results " takes it as he finds it," is apt to mislead the unwary. It would be more accurate to say that he takes it as he nufiJit to find it. That is to say, if the trust for conversion iclioUi/ fails, he takes it as unconverted {ii) ; but if it only partially fails, then, as the conversion dates from the death of the testator (even though it is directed to be made at a future date (.r) ), he takes it as converted, and it devolves accordingly, notwithstanding that in point of fact (*■) {18o!)).To]iiis. 536. (t) (18:M) oL. .J. (\. s.)rh. 17. (tt) lie Lord Grimlhorpe, Beckett V. Lord Grimlhorpe, [1908] 2 Ch. 675. (x) Clarke v. FranJdin (1858), 4 Kay & J. 257. To Whom Property Eesults. 173 the conversion is not, iis it ought to be, carried out in accord- Art. 30. ance with the trust (?/). A learned reviewer of a previous ' edition of this work stated that he could not agree that this view applied to personal estate directed to be converted ; and he contended that it was restricted to real estate directed to be sold (z). With great respect, however, and after full consideration, the present writer still remains of opinion that the decision of the late Mr. Justice Chitty in lie lUchcrson, Scales v. Ileijhoe Q/), is as applicable to personal estate as to real estate. It must be pointed out that precisely the same rule applies ^-ime rules where property results on failure of trusts created by instru- hl'struments^ ments iitter vivos. As has been pointed out above, such ""'^'' '■<«-■"•"■■• l^roperty results to the settlor in the first instance ; but the character in which he retains it is determined by precisely the same principles as have been indicated in the last illus- tration. That is to sa}^ if the conversion ought to take place, that which results is retained in its converted form, notwithstanding that the actual conversion may not be carried out until after the settlor's death. But ^Yhere there has been a total failure of the objects for w'hich conversion was directed, it results to the settlor in its unconverted form, and so devolves. Thus in Re Lord Grinitliorpe, Beckett v. Lord Grimtltorjjc (a), land was settled on the settlor for life and then in trust for sale, the purchase-money to be held upon certain trusts for his widow and issue, with an ultimate trust in default of widow and issue for himself absolutel}'. He died without leaving a widow or issue, having devised the lands to certain uses. It was held by the Court of Appeal, that, as there was no longer any enforceable trust for sale, the property resulted to the settlor and passed under his will as land. Cozens-Hardy, M.E., said : " The property could not be sold until after the settlor's death. At the very moment that the trustees came into possession, and when alone any duty or power was vested in the trustees, there was no enforceable trust ; for I think it is well settled that as between the executors and the heir, or putting it more generall}^ between the real and personal (y) Be Bicherson, Scales v. Newdigate (1817), 2 Mer. 521. Eoyhee, [1892] 1 Cli. 379, and For cases wliere there was an cases there cited. enforceable trust, see Att.-Gen. {z) Law Notes, June, 1894. v. Hiibbuck (1884), 13 Q. B. D. (a) [1908] 2 Ch. 675 ; and see 275, and Clarke v. Franklin also Davenjyort v. Coltman (1842), (1858), 4 Kay & J. 257. 12 Snn. at p. 610, and Stead v. to convert. 174 Constructive Trusts. Art. 30. representatives of a deceased person, there is no equity. . . . If there was no enforceable trust for sale, the property is, to use a phrase which is commonly found in some of the old authorities, ' at home.' It was real estate dc facto, and the court will not, in favour of the personal representative and as against the real representative, convert it into money." Mere power The reader must be warned that a mere power to convert, as distinguished from an imperative trust, does not effect any conversion {b). But if it be exercised, the property will then be converted as from the date of the sale ('), unless there be a trust declared of the proceeds sufficient to reconvert it (d), which is always a question of construction (f)- Where the court rightly directs a sale (which is not otherwise directed) the property is converted from the date of the order ( /"). (b) Fletcher v. Ashburner Oh. 601. (1779), 1 Bro. C. C. 497, 1 Wh. & (e) Where there is a trust to Tu. Lead. Cas. (8th ed.) 347. re-mvest the proceeds in real or (c) Re Dyson, GhaUinor v. leasehold estate, see Re Bird, Sykes, [1910] 1 Ch. 750. Pitman v. Pitman, [1892] 1 Ch. (d) De BeauvoirY. De Beauvoir 279. (1852), 3 H. L. Cas. 524 ; Green- (/) Burgess v. Booth, [1908] 2 way V. Greenway (1860), 29 L. J. Ch. 648. CHAPTER III. CONSTRUCTIVE TRUSTS WHICH ARE NOT RESULTING. ART. PAGE 31. — Constructive Trusts of Profits made by Persons in Fiduciary Positions 175 32. —Constructive Trusts where Equitable and Legal Estates are not united in the same Person . . 179 Art. 31. — Constructive Trusts of Profits made hy Persons in Fiduciary Positions. Where a person has the management of property, either as an express trustee, or as one of a succession of persons partially interested under a settlement, or as a guardian, or other person clothed with a fiduciary character, he is not permitted to gain any personal profit by availing himself of his position ; and he will be a constructive trustee of any profit so made for the benefit of the persons equitably entitled to the property. In the leading case of Kcech v. Sandford{a), a lessee of Trustee the profits of a market had devised the lease to a trustee for [^"^e^Yo^ an infant. On the expiration of the lease, the trustee himself, applied for a renewal ; but the lessor would not renew, on the ground that the infant could not enter into the usual covenants. Upon this, the trustee took a lease to himself for his own benefit. It, was however, decreed by Lord King, that he must hold it in trust for the infant ; his lordship saying : " If a trustee, on the refusal to renew, might have a lease to himself, few trust estates would be renewed to cestuis que trusts." The same principle is equally applicable to (a) (1726) Sel. Cas. Cli. 61 ; v. Lulham (1885), 53 L. T. 9 ; Fitzgibhon v. Scanlan ( 1813), 1 and Be Biss, Biss v. Biss, [1903] Dow, 261 ; and see Be Morgan, 2 Cli. 40, where the whole Pillgrem v. Pillgrem (1881), 18 subject is elaborately discussed. Ch. D. 93 ; Be Lulham, Brinton 176 Constructive Trusts. Art. 31. Tenant for life of leaseholds renewing to himself. Fiduciary lessee pur- chasing the reversion expectant on the lease. Renewals of leases by partial owners other than tenants for life. renewals by the husband or wife of a person in a fiduciary position (h). So also a tenant for life of leaseholds (even though they be held under a mere yearly tenancy {c) ) , who claims under a settlement, cannot reneM' them for his own sole benefit. For he is not permitted to avail himself of his position as the person in possession under the settlement, to get a more durable term, and so to defeat the probable intentions of the settlor that the lease should be renewed for the benefit of all persons claiming under the settle- ment (d). In the case of Lo)i(/ton v. ]]llshi/(i'), SxiRLiNr., J., is reported to have said that the above cases must be restricted to leases where there was a rifflit of renewal either l)v custom or contract ; but it has more recently been pointed out by Warrington, J. (/), that this is an obvious mistake, and that the learned judge was only referring to the purchase of reversions on, and not to the reneical of, leases. Whether a trustee or other fiduciary person is equally precluded from purchasing the reversion expectant on a lease of which he is trustee, is a more difficult question. The answer seems to be that he is not (g), unless the lease is one which is renewable by contract, or if not renewable by contract there has been such a long-standing custom of granting renewals as to lead to the inference that a renewal would be highly probable (li). In the case of renewals of leases by trustees or tenants for life, the presumption against the validity of the renewal for the sole benefit of the part}' renewing, is absolute and irrebuttable (/)• But when we come to consider renewals by (6) Ex paiie Ch-aee (1799), 1 Bos. & P. 376 ; explained in Re Biss, Biss v. Biss, [1903] 2 Ch. 40, at p. n8. (c) James v. Dean (1808), 15 Ve.s. 236. (d) Eyre v. Dolphin (1813), 2 B. &B. 290; Millx. mil{\%o2), 3 H. L. Cas. 828 ; Yem v. Edwards (1857), 1 De G. & J. 598 ; James v. Dean, siqyra. The reader is also referred to Ee Buyne's Settlement, Kibble v. Bayne (1886), 54 L. T. 840 ; and infra. Art. 54. But c/. Blake v. Blake (1786), 1 Cox, 266. (e) (1897) 76 L. T. 770. Strangely omitted from the authorised reports. See also nolmes V. Williams, [1895] W. N 116. (/) Bevany. Webb, [1905] 1 Ch. 620. (g) Bandall v. Russell (1817), 3 Mer. 190 ; Uardman v. John- son (1815), 3 Mer. 347 ; Longton V. Wilsby (1897), 76 L. T. 770; Bevan v. Webb, supra. But cf. Re Lord Ranelagh's Will (1884), 26 Ch. D. 590, contra. (h) Phillips V. Phillips (1885), 29 Ch. D. 673 ; Bevan v. Webb, supra. (i) Re Biss, Biss v. Biss, [1903] 2 Ch. 40. Profits made by Persons in Fiduciary Positions. 177 mortgagees (/,), joint tenants (/), tenants in common (in), possibly partners (n), and owners of land subject to a charge (o), the proposition requires modification. In such cases there is no irrebuttable presumption of law against the validity of the transaction, but at most a rebuttable presumption of fact, that it lies on the party renewing to show that he acted bond Jidc, and took no undue advantage of the other parties interested (jy)- If, therefore, on the evidence, the court considers that there was no bad faith and no undue advantage taken, the renewer will be allowed to retain the beneht of the renewed lease. For instance, where a lease formed part of the personal estate of an intestate, and the lessor refused to renew to the administratrix, a subsequent renewal obtained by one of the next of kin was held to be unimpeachable {p). The principle precluding a tenant for life from renewing a lease for his own benefit, equally precludes a tenant for life of an equity of redemption from purchasing the fee simple from the mortgagee. If he does so he must hold it upon the trusts of the settlement subject, of course, to a charge for what he has paid (q). It need scarcely be said, that any property acquired by trustees by reason of their legal ownership of the trust property, for instance a Crown grant of salmon fishings opposite the trust property (/•), must be held by them as trustees only. Upon similar grounds, if a tenant for life accepts money in consideration of his allowing something to be done which is prejudicial to the trust property (as, for instance, the unopposed passage of an Act of Parliament sanctioning a railway), he Art. 31. Tenant for life of eriuity of redemption pnrcha.sing fee simple from mortga£?ee. Additions to tl'lISt property. Tenant for life receiving money in relation to inheritance. {k) BiishworWs Case (1676), Freem. 13. {I) Palmer v. Young (1684), 1 Veru. 276. But dist. : Holmes V. Williavis, [1895] W. N. 116, where Romer, J., held that one of several beneficiaries who ob- tained a lease to himself of pro- perty previously leased to his trustees, and forfeited by them, was not a constructive trustee for the other cestwis que trusts. (m) Hunter v. Allen, [1907] 1 Ir. E. 212 ; Kennedy v. I)e Traf- ford, [1897] A. C. 180. (n) Featherstonliaugli v. Fen- wick (1810), 17 Ves. 298 ; Clegg V. Fishwick (1849), 1 Mac. & G. 294; Bell v. Barnett (1872), 21 W. R. 119 ; but as to i)artuers, T. see Dean v. McDowell (1878), 8 Ch. D. 345 ; and Piddockc v. Burt, [1894] 1 Ch. 343, where a partner was held not to be a constructive trustee. But cf. judgment of Warrington, ,I., in Bevan v. Webb, [1905] 1 Ch. at ]). 625. (o) Jackson v. Welsh (1836), L. &; Cr. temi). Plunkt. 346 ; Winslow V. Tighe (1812), 2 Ba. & B. 195 ; Webb v. Lugar (1836), 2 Y. & CoU. Ex. 247. (2)) Be Biss, Biss v. Biss, [1903] 2 Ch. 40. {q) Qriijith v. Owen, [1907] 1 Ch. 195. (r) Aberdeen Town Council v. Aberdeen University (1877), 2 xVi^i). Cas. 544. N 118 Constructive Trusts^ Art. 31. Profit made bv trustee. Bribing trustee to retire. How far directors and other agents are constructive trustees of profits. I'rofits made by ageiils. will l)e a trustee of such monej' for all the persons interested under the settlement (.s). So where the sohcitors in an administration action presented their client, the trustee, with half of their profit costs. North, J. (while holding that in the administration action he had no juris- diction in the matter), intimated that if a separate action were brought against the trustee, he would have no defence to it (s). Again, where a testator, by codicil, substituted two persons as trustees in jjlace of those named in his will, and one of the excluded i^ersons gave M75 to one of the persons appointed by the codicil as an inducement to retire and appoint him (the excluded one) in his stead, it was held that the transaction must not only be set aside, but that the .^75 should form part of the estate as a profit illegally made l)y the trustee who retired {t). The one who paid it was of course precluded from claiming its return under the maxim in jxn'i (hiicto ijotior est conditio jyosaidentis. Directors of a company cannot avail themselves of their position to enter into beneficial contracts wdth the company (u), nor can they buy property, and then sell it to the company at an advanced price. Promoters of a company hold a fiduciary relation towards the company, and cannot be allowed to retain a secret commission received from the vendors of property which the company is formed for the purpose of jDur- chasing (.r). Directors cannot receive commissions from other parties on the sale of any of the property of the company (y) ; and generally they cannot deal for their own advantage with any part of the property or shares of the company (z) . However, notwithstanding some dicta to the contrary, it would seem that where profits are illegally made by agents, although they must give them up to their principals, they are not always considered to be constructive trustees, so as to give the principals the right of following the profits if converted into other kinds of property. This question is considered more fully infra, p. 188. {») Be Thorpe, Vipont v. End- difle, 11891] 2 Ch. 360. (I) Sngden v. Crossland (1856), 3 .Sni. & C4iff. 192. (!<) Great Luxembourg lUiil. Co. V. Magnay (1858), 25 Beav. 586 ; Aberdeen Hail. Co. v. Blackie (1854), 1 Macq. II. L. 461 ; Flanagan v. Great Western Bail. Co. (1868), 19 L. T. (n. .s.) 345. (j) Ilitchcns V. Cungrccc (1828) cited 1 Russ. & Mvl. 150 ; Fawcett v. Whitehouse '(1829), 1 Euss. & Myl. 132 ; Beck v. Kanlorowicz (1857), 3 Kay & J. 230; Bagnall v. Carlton (1877), 6 Cli. D. 371 ; Emma Silver 3fining Co. v. Grant (1879), 11 Ch. D. 918. (y) Gnskell v. Chambers (1858), 26 Beav. 360. {z) York, etc. Rail. Co. v. Hudson (1853), 16 Beav. 485. Profits made by Persons in Fiduciary Positions. 179 A solicitor who purchases property from a chont must, if Art. 31. the sale be impeaclied, not only show that he "ave full value , ,. : — ^ . ^ Solicitor for it, but also that the client was actually benefited by the buyin? fiom transaction (a). And persons who subsequently purchase from ^^''^"^• the solicitor with notice of the transaction are under a similar liability (b). Art. 32. — Condradive Trusts wJiere Equitable and Leyal Estates are not united in the same Person. In every case (not coming within the scope of any of the preceding articles) where the person in whom real or personal property is vested has not the whole equitable interest therein, he is pro tanto a trustee of that property for the persons having such equitable interest (c). Thus, where a binding contract is entered into between two Relation of persons for the sale of land by one to the other, then, in the "^'endoi' and ^ . *^ purchaser words of Lord Cairns, in Siiaw v. Foster (d), " There cannot before com- be the slightest doubt of the relation subsisting in the eye of a Paction, court of equity between the vendor and the purchaser. The vendor is a trustee of the property for the purchaser ; the purchaser is the real beneficial owner in the eye of a court of equity of the property ; subject only to this observation, that the vendor (whom I have called a trustee) is not a mere dormant trustee ; he is a trustee having a personal and sub- stantial interest in the property, a right to protect that interest, and an active right to assert that interest if anything should be done in derogation of it. The relation, therefore, of trustee and cestui que trust subsists, but subsists subject to the para- mount right of the vendor and trustee to protect his own interest as vendor of the property." He is, therefore, only (a) And see also infra, Art. 54. struct! ve trust (for they are, as (6) Silencer v. Topham (1856), has been truly said, contermi- 2 Jur. (n. s.) 865. nous with equity jurisprudence), (c) Per Lord Lindley in I have thought it better to call Uardoon v. Belilios, [1901] A. C. special attention to those classes 118, 123. This article, doubt- which are most important, and less, includes all those relating to bring all others within one to constructive trusts which sweeping general clause, have preceded it ; but as it {d) (1872) L. R. 5 H. L. 321 ; would be an endless task to Earl of Egmont v. Smitlt, (1877), enumerate every kind of con- G Ch. I). 161). N 2 180 Constructive Trusts. Art. 32. Constructive trust arising out of contract restrictcil to contracts whicli equity would specifically perform. Vendor's lien after conveyance. trustee pro tanto, and his duties are strictly matter of contract ('')• The last-mentioned case depends on the maxim that equity regards that as done which ought to be done. In other words a constructive trusteeship) only arises by reason of a contract of sale where the contract is one which a court of equity would specifically perform. Consequently, as the court will not enforce the specific performance of ordinary contracts for the sale and purchase of chattels (unless there be something vevy special in the nature of the contract, as in the case of a picture or other unique article), so no constructive trust of ordinary chattels Mill be inferred in favour of the purchaser merely from the fact of his contract to purchase it. If the relation of trustee and cfstui qtie trust in such cases exist at all, it must be shown to exist from something beyond the mere contract. For instance, if the seller has been paid every penny that he was entitled to and had no claim upon or interest in the chattels, and the contract only remains unperformed to this extent, that the chattel has not been delivered to the purchaser, the seller would then be a mere trustee of the chattel for the purchaser or his assigns (/■). To raise a constructive trust of chattels in favour of a purchaser, therefore, the chattels must exist, and either the contract must be one which the court would specifically perform, or (if not) everything must have been done by the purchaser necessary to entitle him to immediate delivery. In the converse case, where the vendor has actually con- veyed the property, but the purchaser has not paid the pur- chase-money, or has only paid part of it, the vendor has a lien upon the property tor the unpaid portion {g), and the pur- chaser will hold the estate as a trustee _2Jro tantu, unless by his acts or declarations the vendor has plainly manifested his intention to rely not upon the estate, but upon some other security, or upon the personal credit of the individual (h). A mere collateral security will not, however, suffice (/) ; but where it appears that a bond, covenant, mortgage, or annuity was itself the actual consideration — the thing bargained (e) See i)cr Lord Westbury in Knox V. Gye (1872), L. R. 5 li. L. 656 ; distiiiguislied in Beljemann V. Beljemann, [lH[)o\ 2 Cli. 474 ; but see Earl of Eymonl v. Smith (1877), 6 Ch. D. 469, aud c/. Clarke V. Bamaz, [1801J 2 Q. J3. 456. (/) Per KoMiLLY, M.K., Fooleij V. iiw(/t/(l851). 14 Beav. 34 ; anil see Ounn v. Bolckow, Vaughan & Co. (1875), L. R. 10 Ch. 491. ig) Mackreth v. Symmons (1808), 15 Ves. 329, 2 Wh. & Tu. Lead. Ca^. {Ith ed.) 926. (h) Ibid. (i) Collins V. Collins (1862), 31 Beav. 346 ; Hughes v. Kearney (18U3), 1 .Sell. ^Lel. 132. General Equities. 181 for — and not merely a collateral security for the purchase- Art. 32. money (/.•), there will be no lien, and consequently no trust. It need scarcely be pointed out that a mortgagor, in the Equitable case of an equitable mortgage, is pro tanto a trustee for the "^<^^*"''^"^''- mortgagee. For even where there is no written memorandum, a deposit of title deeds is of itself evidence of an agreement for the mortgage of the property (/) ; and, in accordance with the maxim that "equity regards' that as done which ought to be done," the mortgagor holds the legal estate in trust to execute a legal mortgage to the mortgagee. Upon the death of a mortgagee, the mortgaged property (if Devolution assured to him in fee) descended at law before 1882 to his prop'ortv/"'"' heir ; but being in reality only a security for money, it equitably belonged to his personal representatives, and the heir was, therefore, held to be a mere trustee for the administrators or executors of the mortgagee (vi). A mortgagee is not in the position of a trustee with regard Mortgagee in to the exercise of his power of sale, which is given to him for P^'^^^'^^'o"- his own benefit ; the only obligation incumbent on him is that he should act in good faith (?i). On the other hand, a mort- gagee in possession is constructively a trustee of the rents and profits, and bound to apply them in a due course of administration (o). But there has been considerable conflict of opinion as to the extent of his responsibility. For instance, it has been held that he is liable even after transferring the mortgage without the mortgagor's consent (p) ; but this deci- sion has been questioned, and, it is respectfully apprehended, rightly so (q). In another case, it was said that a mortgagee in possession who, after the mortgagor's death, bought up the (7^) Buckland v. Pochnell (m) ThornborougJi v. Baker (1843), 13 Sim. 406 ; Parrott v. (1677), 1 Ch. Cas. 283, 2 Wh. & Sweetland (1835), 3 Myl. & K. Tu. Lead. Cas. (7th ed.) 1 ; but see 6.55 ; Dixon v. Gayfere (No. 3) 37 & 38 Vict. c. 78, ss. 4, 5. (1855), 21 Beav. 118; Dyke v. (n) Kennedy v. De Trafford, Eendall (1852), 2 De G. M. & G. [1897] A. C. 180. 209 ; and see Be Brentwood (o) Coppring v. Cooke (1684), BrickandCoalCo. {1876), 4:Ch.'D. 1 Vern. 270; Bentham v. Hnin- 562. court (1691 ), Pr. Cli. 30 ; Parker v. (I) Russell V. Bmsell (1783), Calcraft (1821). 6 Madd. 11; 1 Bro. C. C. 269, 2 Wli. & Tn. Hughes v. Williams (1806), 12 Ijead. Csm. (Ithed.) 16 ; Ex pa)ie Ves. 493; Maddoeks v. Wren WrigJit (1812), 19 Ves. 255; (1680). 2 (^h. Rep. 109. PrT/cev. Bm/v/ (1853), 2Drew. 41 ; (p) Venahles v. Foyle (1660), Ferris v. Miillins (1854), 2 Sm. & 1 Oh. Cas. 3. Giff. 378 ; Bx parte Moss (1849), {q) Kingham v. Lee (1846), 15 3 De G. & Sm. 599. Sim. at p. 400. 182 Art. 32. Limited owners pay in 2: off charjzf on inheritance or calls on shares. Improve- ments effected by partial owner. Constructive Trusts. widow's right to dower was obliged to hold it in trust for the heir, upon his paying the purchase-money ( r) ; and although this case has called forth much comment (.s), it is difficult to distinguish it in principle from the class of cases considered in the last article. Another important illustration of the rule now under con- sideration occurs when a limited owner {e.g., a tenant for life) pays off a specific (/) incumbrance out of his own money. In such a case (in the absence of evidence showing an inten- tion to extinguish the incumbrance) he is held to be, in equity, in the position of a transferee of the incumbrance, notwithstanding that he took an ordinary reconveyance {u) ; and, on his death, the remainderman holds the legal estate subject to the equitable lien or charge so created (.r). On the same ground, it has been held that a tenant for life under a settlement comprising shares in a company has a lien on the shares for repayment, with interest, of advances made at the request of the trustees, for the purpose of paying calls (?/). In some cases, where a person partially interested in land has raised the value of it by effecting permanent improve- ments at his own expense, the amount expended, or the additional value imparted to the property by the expenditure (whichever is the smallest sum), has been charged by the court on the property in favour of the party who found the money. But it is believed that this has only been done in two classes of cases, viz., (!) where equitable relief is being sought by the other parties interested in the estate ; in which case such equitable relief has been given only on the terms of their doing equity by bearing the charge in question {z) ; where tenant for life of a lease for lives purchases the reversion and settles it, see Isaac v. Wall (1877), 6 Ch. D. 706; and, as to evidence showing contrary intention, see Astley v. 3Iilles (1827), 1 Sim. 298 ; Tyrwhitt v. Tynvhitt (1863), 32 Beav. 244. (y) Bowley v. Ihuvin (1855), 2 Kay & J. '138 ; Todd v. Moor- liouse (1874), L. E. 19 Eq. 69. {z) Henderson v. Astwood, [1894] A. C. 150; Kowlcy v. Ginnevcr, [1897] 2 Ch. 503 ; and see lie Cook's Mortgage, Laivledge V. Tyndnll. [1896] 1 Ch. 923, and lie ('ouho7i\s Trusts, J'ricJiard V. CouUon (1907), 97 L. T. 754. (r) Baldwin v. Bannister, cited in Bobinson v. Pett (1734), 3 P. Wms. 251. (s) Dobson V. Land (1850), 8 Hare, 216 ; Arnold v. Garner (1847), 2 Ph. 231 ; MatiMson v. Clarice (1854), 3 Drew. 3. (/) See Morley v. Morley (1855), 25 L. J."Ch. 1 ; e.g. a Local Government charge. Be Smith's Settled Estates. [1901] 1 Ch. 689. {u) Lord Gifford v. Ijord Vitz- hardinge, [1899] 2 Ch. 32. (x) Bedington v. Bedington (1809). 1 Ba. &.- B. 131 : St. Bard V. JMidley d; Ward (1808), 15Ves. 167 ; Drinkwater v. Combe (1825) 2 Sim. & St. 340. As to case General Equities. 183 and (2) in cases of salvage, i.e., where the expenditure has Art. 32. been necessary to avoid actual loss (a). But except in such cases as these, or under the provisions of the Settled Land Acts or the Improvement of Land Act, it would seem that the court has no jurisdiction either to sanction in advance a charge, on the property, of the expense of permanent improve- ments, or to create such charge where the partial owner has already incurred the expense (b). In such cases, however, Parliament has on several occasions given relief by private legislation. Conversely where a tenant for life in possession, who is also the only person in esse entitled to the first estate of inheritance, commits waste, he is a trustee of the proceeds for all parties ultimately interested (e) ; for, there being no one in existence to sue him at common law, equity steps in. Considerable difficulty frequently arises with regard to the Confidential question whether an agent is a trustee for his principal, ^s^^^^- The point generally arises either in reference to the Statutes of Limitation, or to the application of the Debtors Act, 1869 (32 & 33 Vict. c. 62), in relation to the attachment of default- ing trustees. It is submitted that where property is handed to an agent either for investment, sale, safe custody (d), or otherwise, then he is a trustee of that property (c). But where an agent merely collects rents, or debts, or the like on commission, or receives illicit commissions, the relation of trustee and cestui que trust does not generally arise, unless the agency is of an exceptionally fiduciary character ; the remedy of the principal being confined to a common law action for money had and received (/). As Chitty, J., said in (a) lie Montagu, Derhishire v. able for waste afterwards comes Montagu, [1897] 2 Ch. 8 ; Frith into existence he will take the V. Cameron (1871), L. E. 12 Eq. fund: Lowndes v. Norton (1877), 169 ; but see Be LegWs Settled 6 Ch. D. 139, and cases there Estates, [1902] 2 Ch. 274. cited). (b) Be Montagu, DerbisMre v. (d) Be Tidd, Tidd v. Overell, Montagu, supra; and see Flayer [1893] 3 Ch. 154 ; North Ameri- V. Bankes (1869), L. R. 8 Eq. ean Land and Timber Co., Lid. 115 ; Be Willis, Willis v. Willis, v. Watkins, [1904] 1 Ch. 242. [1902] 1 Ch. 15. As to improve- (e) See Burdick v. Garrick ments by trustees, see post, (1870), L. R. 5 Ch. 233 ; Crowtlier Art. 56, and as to repairs. Art. 46. v. Elgood (1887), 34 Ch. D. 691 ; (c) Williams \. Bolton {\1M), Doohi/ v. TTflYsow (1888), 39 Ch. D. 1 Cox, 72 ; Powlett v. Bolton 178. (1797), 3 Ves. Juu. 374; Gaiih (/) Piddocke v. Burt, [1894] 1 V. Cotton (1753), 3 Atk. 755; Ch. 3^3; Siudsec Friendv. Young, Bagot V. Bagot (1863), 32 Beav. [1897] 2 Ch. 421, explained and 509 ; Be Barrington, Gamlen v. distinguished in North American Lyon (1886), 33 Ch. D. 523. Land and Timber Co., Ltd. v. If a tenant for life Mwimpeach- Watkins, [1904] 1 Ch. 242. liens 184 Constructive Trusts. Art. 32. Pidchckc v. Burt (g), "it is not every agent who is fiducial"}'." Thus a partner who collected debts due to the firm and mis- applied the money so collected, was held not to he liable as a trustee. So directors of a company, although " they have been always considered and treated as trustees of money tcJiicJi comes to their hcnuls or irliicli is under tJieir control" (h), are not liable, as trustees, for carelessness,- — as for instance, for accepting shares in another company in lieu of cash (/i). But, on the other hand, an auctioneer is a trustee of a deposit paid to him (0 ; and so is a broker of stock handed to him for sale (j). A solicitor to whom money is handed for investment (k), a solicitor of a mortgagee who receives purchase-moneys arising under an eiercise of his client's power of sale (/), land agents, bailifi"s, and receivers, are all fiduciary agents (m). But a solicitor employed to get in a debt, and who ought to hand it over at once to his client, is curiously enough not a trustee of it (n) ; possibly on the ground that he is not intended to keep it in his custody, custody being of the very essence of trusteeship. Partnership So, again, where the plaintiff was induced, by fraud of the defendant, to purchase a share of his business, and to enter into partnership with him, and judgment was given for the rescis- sion of the agreement and the dissolution of the partnership, it was held that the plaintiff was entitled, in respect of the purchase-money which he had paid, to a lien on the surplus of the partnership assets after satisfying the partnership debts and liabilities ; and that, in respect of any sums which he had paid or might pay in satisfaction of partnership debts, he was entitled to stand in the place of the partnership creditors to whom he had made the payments (o). So where one partner wrongfully sells the partnership securities, he is a trustee of the proceeds ( j)). (<7) [1894] 1 Ch. 343. 34 Cli. D. 462. (h) Per LiXDLEY, L..T., Fe (m) Marris v. Ingram (1870), Lands Allotment Co., [1894] 1 13 Ch. D. 338. Ch. at p. 631 ; and see Fe {n) Fe Jlindmarsh (1860), 1 Sharpe, Masonic, etc., Assurance Dr. «&; Sm. 129 ; Bnrdich v. Co. V. Sharpe, [1892] 1 Ch. 154. Garriclc, snjyra ; Watson v. Wood- {i) Croicther v. Elgood (1887), man (1875), L. R. 20 Eq. 721. 34 Ch. D. 691. (o) Mycoch v. Beatson (1879), (j) Ex parte Cooke, Be Straehan 13 Cli. D. 384 : and as to sale of (1876), 4 Ch. D. 123. land obtamed by fraud, see Bose (A) Burdick v. Garrick (1870), v. Watson (1864), 10 H. L. Cas. L. II. 5 Ch. 233 ; Doohy v. 672 ; and see also Aheraman Watson (1888), 39 Ch. D. 178 ; Ironworks v. Wickens (1868), Soar V. Ashwell, [1893] 2 Q. B. L. R. 4 Ch. 101. :{90. ip) Kendal v. Wood (1871), (/) Fr Bell, Lake v. Bell (1886), L. R. 6 Ex. 243. General Equities. 185 Upon similar principles, a court of equit}' converts a party Art. 32. who has obtained property by fraud into a trustee for the „ Property party who is injured by that fraud (q). For instance, where acquired by an heir apparent, by fraud, prevents a will being made (/■). or, ^''''^"^'• being the testator's solicitor as well as his heir, advises him to do an act which has the effect of revoking a will (.s), it has been held that he is a constructive trustee for the disappointed devisees. But, that being a jurisdiction founded on personal fraud, it is incumbent on the court to see that a fraud, or malits aninuia, is proved by the clearest and most indisputable evidence ; it is impossible to supply presumption in the place of proof (0- So where the shareholders of a company receive capital Capital i.f ultra vires, they are trustees of it for the company (») ; and ^^"tributed a fortiori directors are liable as trustees who have misapplied nUra rirrx. trust funds (x). So, again, where a stranger to a trust receives money or Trust funds property from the trustee, which he knows (1) to be part of the ^^st^i",^' -r^ trust estate, and (2) to be paid or handed to him in breach of the trust, he is a constructive trustee of it for the persons equitably entitled, but not otherwise (//). This question of the responsibilit}^ of third parties as constructive trustees is more fully discussed in Division IV., Chap, III., infra. {q) See Booth v. Turle (1873), undue influence to fiduciary L. E. 16 Eq. 182 ; Bochefoucauld persons, Art. 14, supra. V. Boustead, [1897] 1 Ch. 196. (u) Bussellv. Wakefield Water- (r) Dixon v. Olmms (1787), 1 worlcs Co. (1875), L. R. 20 Eq. Cox, 414. 474 ; Moxham v. Grant, [1900] (s) BulUeij V. Wilford (1834), 1 Q. B. 88. 2 CI. & Fin. 177. {x) Be Sharpe, Masonic, etc., (t) Per Lord Westbury in Assurance Go. v. Sharpc, [1892] McGormicJc v. Grogan (1869), 1 Ch. 154. L. R. 4 H. L. at p. 88. But cf. [y) Barnes v. Addy (1874), judgment of Lord Eldon in L. R. 9 Ch. 244 ; Be Spencer Bullcley y. Wilford, sujjra, where (1881), 51 L. J. Ch. 271; Be his lordship stated that gross Blundell, Blundell v. Blundell professional ignorance was equi- (1888), 40 Ch. D. at p. 381 ; valent to fraud. As to a person Soar v. Ashwell, [1893] 2 Q. B. who has by fraud prevented 390 ; Thomson v. Clydesdale a will being made in plaintiff's Banlc, [1893] A. C. 282 ; Be favour, see Dixon v. Olmius Barney, Barney v. Barney, [1892] (1787), 1 Cox, 414; and see 2 Ch. 265. also, as to gifts made under DIVISION IV. THE ADMINISTRATION OF A TRUST. CHAPTER PAGE I. — DiSCLAIirER AND ACCEPTANCE OF TRUSTS . . .187 II. — The Estate of the Trustee, and its Incidents . .193 III.— The Trustee's Duties 211 IV. — The Powers of the Trustee 327 V.^ — Power of the Beneficiaries 355 YI.— The Death, Eetirement, or Ee^ioval of Trustees, AND THE Appointment of New Trustees . . . 365 VII. — Appointment of a Judicial Trustee 407 VIII. — The Public Trustee 411 IX.— Administration of New Trusts created under Limited Powers in the Original Settlement .... 425 X. — The Rights of the Trustee 429 XI. — The Eight of Trustees and Beneficiaries to seek the Assistance of the Public Trustee or the Court in Auditing or in Administering the Trust . . . 445 CHAPTER I. DISCLAIMER AND ACCEPTANCE OF TRUSTS. ART. PAGE 33.— Disclaimer OF A Trust 187 34. — Acceptance of a Trust 190 Akt. 33. — Disclaimer of a Tnist. No one is bound to accept the office of trustee (a). Both the office and the estate may be disclaimed hffoir acceptance (but not afterwards (/>) ), in the case of a married woman by deed (c), and in other cases by deed or by conduct tantamount to a disclaimer [d). The (a) Robinson v. Pett (1734), 3 (c) 8 & 9 Vict. c. 106, s. 7. P. Wms. 249, 2 Wh. & Tu. Lead. {d) Stacey v. Elph (1833), 1 Cas. (7tli ed.) 606. Myl. & K. 195 ; Townson v. (6) Noble V. Meymott (1851), Tickell (1819), 3 B. & Aid. 31 ; 14 Beav. 471. Begbie v. Creole (1835), 2 Bing. 188 The Administration of a Trust, Art. 33. Consent to undertake future trust not binding. ^letliods of tlisclaiiuing. Deed of dis- claimer not necessary. disclaimer should be made within a reasonable period, having regard to the circumstances of the particular case(t'). Part of a trust cannot be disclaimed if other part be accepted (/). The onus of proving disclaimer is on those who assert it (f/). Thus, even though a person may have agreed in the lifetime of a testator to be his executor, lie is still at liberty to recede from bis promise at any time before proving the will(/<). A prudent man will, of course, always disclaim by deed, in order that there may be no question of the fact ; but a disclaimer by counsel at the l)ar(0, or even by conduct inconsistent with acceptance, is sufficient (./). For instance, in Staccfi v. FApli (A), a person, named as executor and trustee under a will, did not formally renounce probate until after the death of the acting executor, nor formally disclaim the trusts of the will : but he purchased a part of the real estate, and took a conveyance from the tenant for life, aud tltr hciv-ai-laiv in irluim the est ate could onhj rest /;// ///'' (Jlaclaiincr (>f the trust. It was held, under these circumstances, that he had I)}' his conduct disclaimed the office and estate of trustee under the will. In Pu' ElUsnn'H Trusts (I), Rir W. Page-Wood, V.-C, expressed some doubt whether a freehold, estate could be disclaimed by parol, or otherwise than by deed ; l)ut his honour's attention does not appear to have been called to Stacei/ V. Kl])Ji. ^foreover, in the more recent case of Itr Gordoi, lloherts v. Gordon (lu), where real estate was devised to trustees upon trust to sell antl to form a mixed fund (consisting of the proceeds of such sale and of the testator's personal estate), and the trustees were also nomi- nated executors, and renounced probate, and never acted in the trusts, it was held by Sir George -Tessel, M.Ii., that the renunciation of probate, coupled with the fact that the trustees N. C. 70 ; Bingham v. Lord Clanmorris (1828), 2 Moll. 253; and ii'e Birch(dl, Bircludl v. Ashton (1889), 40 Ch. D. 436. (e) !See Doe v. Uurris (1847), 16 Mee. & W. at p. .522 ; raddon V. RichardHun (1855), 7 De C!. M. & G. 563 ; JaviCN v. Frearson (1842), 1 Y. & Coll. C. C. 370. (/) lie Lord and Fullerton'n f'ontraet, [1806 J 1 ("h. 228. See infra, p. 192. {q) See infra, p. 190. (h) Boyle v. Blake (1804), 2 Sell. & Lef. 231. (i) Norwaij v. Norway (1834), 2 Myl. & K." 278 ; Bray v. Wext (1838), 9 Sim. 429. (j) Forster v. Dawber (1860), 8 W. K. 646. (A:) (1883) 1 Myl. & K. 19.5. (?) (1856) 2 Jur. (\. s.) 62. (Hi.) (1877) 6 Cli. 1). 531. Disclaimer of a Trust. 189 had never assumed to act as such, was conclusive evidence of Art. 33. disclaimer. Lastly, in lie Birchall, Bircliall v. Aaliton (n), the Court of Ai)peal held that a trustee had by conduct disclaimed the office ; and that having disclaimed the office, he nuist of necessity have also disclaimed the estate. Where a deed is executed with the intention that it shall oj^erate as a disclaimer, it will have that effect, notwithstanding that the disclaiming trustee purports to convey or release his estate to the accepting trustees, an action which logically raises the inference that he has accepted the estate (o). "With regard to the costs of a disclaimer, a person nominated Costs of a trustee who refuses to accept the office is not to be jDut to <^lisciaimer. expense. He is therefore entitled, as a condition of executing a deed of disclaimer, to be paid out of the trust estate all his costs of and incident thereto, including the costs of taking counsel's opinion i})). If (not having previously disclaimed) he is made a defendant to an action concerning the trust, he should, generally speaking, disclaim at once and offer to execute all necessary documents on his costs being paid. He will then be entitled to have the action dismissed, against him with costs, Ijut only as between party and party (q). What would happen in the case of a person nominated a trustee who unreasonably refuses either to accept or disclaim, seems never to have been decided in any reported case. It is apprehended, however, that he would in these days get no costs of any proceedings rendered necessary by his ill- conditioned conduct, but it is difficult to see how he could be ordered to pay costs. Indeed in one case (before the present wide judicial discretion as to costs) where the executrix of a deceased trustee refused to act in the trust (she could not disclaim) she was allowed her costs of a suit for the appointment of new trustees and a transfer of the trust property (/•). The effect of disclaimer is to avoid the devise, bequest, or p:ffect of grant ah initio, so that where there are two trustees and one ^^isclaimer. disclaims, the title of the other who accej^ts is complete a/; initio, and devolves on his death as such («). (»)(1889)40Cli.D.436; andsee 278; Bray v. West (1838), 9 Lancashire v. Lancashire (1848), Sim. 429. As to where he is a 2 Ph. 657. defendant in a foreclosure action (o) Nicloson V. Wordsworth by a mortgagee of the trust estate, (1818), 2 Swans. 365. see Ford v. Lord Chesterfield ip) Be Tryon (1844), 7 Beav. (1853), 16 Beav. 516. 496. (r) Legg v. Mackrell (1860), 2 t (g) See Benbmv v. Davies De G. F. & J. 551. (1848), 11 Beav. 369 ; Norway (s) Peppercorn v. Waymatt- V. Norway (1834), 2 Myl. & K. (1852), 5 De G. & Sm. 23vJ. 190 The Administration of a Trust. Art. 34. Express acceptance. Acceptance by acqui- escence. Acceptance by exercise of dominion. Acceptance by taking out probate. Art. 3-1. — Acceptance of «■ Trust. A person may accept the office of trustee expressly ; or he may do so constructively by doing such acts as are only referable to the character of trustee or executor ; or he may do so by long acquiescence. In the absence of evidence to the contrary, acceptance will be presumed (t). A trustee expressly accepts the office by executing the settlement (u), or b}' making an express declaration of his assent (x). Permitting an action concerning the trust property to be brought in his name {y), or otherwise allowing the trust property to be dealt with in his name (z), is such an acquiescence as wall be construed to be an acceptance of the office. So, exercising any act of ownership, such as advertising the property for sale, giving notice to the tenants to pay the rents to himself or an agent, or requesting the steward of a manor to enrol a deed in relation to the trust property, and a fortiori active interference in the affairs of the trust (a), is sufficient to constitute acceptance of a trust (/>). Again, where the office of executor is clothed with certain trusts, or where the executor is also nominated the trustee of real estate under a will, he is construed to have accepted the office of trustee if he takes out probate to the will (c). And accept- ance of the trusts of a will was, prior to 1882, constructive acceptance of the office of trustee of estates, devised thereby, This equally applies to powers annexed to the office {Browell v. Reed (1842), 1 Hare, 434 ; Adams V. Taunton (1820), 5 Madd. 435), but not to personal powers {Wetherell v. Langston (1847), 1 Ex. 634 ; Crawford v. Forshaw (1890), 43 Ch. D. 643). (t) Townson v. Tickell (1819), 3 B. & Aid. 31 ; lie Arbib and Class's Contract, [1891] 1 Ch. 601. (u) Buclceridge v. Glasse (1841) 1 Cr. & Ph. 126 ; Jones v. Uiggins (1866), L. 11. 2 Eq. 538. (ic) Uoe V. Harris (1847), 16 Mee & W. 517. {y) Lord Montford v. Lord Cadogan (1810), 17 Ves. 485. {z) James v. Frearson (1842), 1 Y. & Coll. C. C. 370. (rt) Doyle V. Blake (1804), 2 Sch. & Lef. 231 ; Harrison v. Graham (undated), 1 P. Wms. (6th Ed.), 241, u. ; Urchv. Walker (1838), 3 Myl. & Cr. 702. {b) Bence v. Gilpin (1868), L. R. 3 Ex. 76. As to accept- ance of executorship by inter- meddUng, and its effect on subse- quent devastavit by adminis- trator, see Doyle v. Blake (1804), 2 Sch. &Lef. 231. (c) Muckloiv V. Fuller (1821), Jac. 198 ; Ward v. Butler (1824), 2 Mol. 533 ; Booth v. Booth (1838), 1 Beav. 125; Styles v. Guy (1849), 1 Mac. & G. 422. Acceptance of a Trust. 101 of which the testator was trustee (d). Now, however, trust Art. 34. estates (except copyholds) cannot be so devised, but vest in the executors virtate ojjicii (c). In Conyngham v. Conyngham (./"), one Coleman was appointed Acceijtancc trustee of a will, but he never expressly accepted the appoint- ^^ conduct, ment. One of the trusts was in respect of the rents of a plantation then in lease to the testator's son. Coleman acted as agent of the son, who was also heir-at-law, and received the rents of the estate from him. It was held that, by so interfering with the trust property, he could not repudiate the trust and say that he merely acted as the son's agent. He received the rents ; and it was incumbent on him, if he did not desire to act as trustee, to disclaim expressly, and not to leave himself at liberty to say he acted as trustee or not. It is, however, not every interference with trust property which will be construed as an acceptance of the office of trustee ; for if such interference be plainly (not ambiguously) referable to some other ground, it will not operate as an acceptance {g). Nor (it has been said) will merely taking charge of a trust until a new trustee can be found, constitute, of itself, a constructive acceptance (//). But it would be a highly dangerous act, even if that decision were now followed, which seems doubtful. In a modern case, the joining in the legacy duty receipt for the trust fund, unaccompanied by the actual receipt of the money, was held to be of itself insufficient to fix a trustee who desired to disclaim, with acceptance of the trusteeship (/). But, Acceptance on the other hand, there is a iirimd facie presumption of accept- J^^^^^^ ance ; so that where a trustee, with notice of the trust, has indulged in a passive acquiescence for some years, he will be presumed to have accepted it, in the absence of any satisfac- tory explanation (/t). And where a testator nominated A., who was living in Australia, to be one of his trustees if he should return to England, and some years after the testator's death he did return for a temporary visit, and there was no evidence {d) Be Ferry (1840), 2 Curt. (/i) Evans v. John (1841), 4 655; Brooke v. Haijmes (1868), Beav. 35. L. R. 6 Eq. 25. (i) Jago v. Jago (1893), 68 (e) Conveyanciug Act, 1881 L. T. 654. (44 & 45 Vict. c. 41), s. 30. (fc) Wise v. Wise (1845), 2 (/) (1750) 1 Ves. Sen. 522. Jo. & Lat. 403 ; Be Uniacke ig) Stacey v. Elph (1833), 1 (1844), IJo. & Lat. 1 ; Be Need- Mjl. & K. 195 ; Dovev. Everard ham (1844), 1 Jo. & Lat. 34; (1830), 1 Russ. & Myl. 231; Doe v. Harris {184:1), IG Mee &. Lowry v. Fulton (1838), 9 Sim. W. 517. 104. part 102 The Administration of a Trust. Art. 34. of disclaimer, it was held that the 2>r/?/(a facie presumption of acceptance had not been rebutted, and that a title could not be made by the other trustees (/). Acceptance Acceptance of part of a trust is acceptance of the whole, of part an. 1 notwithstanding any attempted disclaimer of part. Thus, diSimer where a testator, having property here and abroad, gave the of other whole to trustees upon the same trusts, it was held that one unit ■'■ . ,., 1-1 of the trustees could not disclaim the English property while accepting the trusts of the foreign property; and that con- sequently he was a necessary party to a sale of the former (/»). Lastly, when once a trust has been effectually disclaimed, interference by the disclaiming trustee will not cancel the disclaimer or raise an inference of acceptance of the trust — /'.r/., where he acts as agent for the trustees or adviser to the family (»)• The question of a trustee clr sou tort {i.e., where a person not nominated as trustee gets possession of trust property with notice of the trust) is treated of later on. (/) Fe Arbib and Class's Con- Russ. & Myl. 231 ; Lowry v. tract, [1891] I Ch. 601. Fulton (1838), 9 Sim. 104 ; (m) Fe Lord and Fulleyion's Stacey v. Eljih (1833), 1 Myl. &, Contract, [1896] 1 Ch. 228. K. 195. (n) Dove v. Everard (1830), 1 CHAPTER II. THE ESTATE OF THE TRUSTEE, AND ITS INCIDENTS. ART. PAGE 35. — Cases in- which the Trustee takes any Estate . . 19."} 36. — The Quantity of Estate taken by the Trustee of Lands 196 37. — The Effect of the Statutes of Limitation on the Trustee's Estate 202 38. — Bankruptcy of the Trustee 205 39. — ^The Incidents of the Trustee's Estate at Law . . 206 40. — Trustee's Estate on Total Failure of Beneficlvries . 207 Art. 35. — Cases in which the Trustee takes any Estate. (1) Where the trust is a simple trust, and the trust property is of freehold tenure, then, in consequence of (or in the case of wills by analogy to) the Statute of Uses, the trustee takes no estate, unless the property ^ be limited to his use, or unless there be a clear inten- tion to vest an estate in him. But where the trust is a special trust, the statute does not apply, and the trustee will take a legal estate of some duration. (2) Where the trust property is of copyhold or lease- hold tenure, or is pure personalty, the Statute of Uses is inapplicable, and the trustee takes a legal estate of some duration, whether the trust be simple or special. (3) This article has no application where the legal estate is outstanding. Thus, where the legal estate in freeholds is limited to trustees, Trust to and the words used are " in trust to pay to " a specified i^erson bcnTficiary the rents and profits, there the trustees take the legal estate, to receive because they must receive before they can pay. But where '"*^°*^" the words are " in trust to permit and suffer A. B. to take the rents and profits," there the legal estate passes directly to the T. O 194 The Administration of a Trust. Alt. 35. Trust to permit beneficiary to receive net rents. Trust to pay or permit beneficiary to receive. Control or discretion in trustees. party beneficially entitled, the purposes not requiring that it should remain in the trustees (a). AVhere, hoNvever, the trustees are to permit and suffer the beneficiary to receive the net or clear rents and profits, the trustees take the legal estate ; it being presumed that the trustees are to take the f/ross rents, and, after payment of outgoings, to hand over the net rents to the beneficiary (h). 'SVhere the language is ambiguous, and may be read either as implying a simple or a special trust, it has been said that the question must be determined according to the general rules of construction. Thus, in Doe v. Biggs (c), it was decided that the -words "to payor permit him to receive" would, if contained in a deed, create a special trust, inasmuch as of two inconsistent expressions in a deed the first prevails ; whereas the same words occurring in a will would create a simple trust, as a testator's last words are preferred. However, this case cannot be relied on. As Lindley, L.J., said in Re Lashmar, Moody V. Pen fold (d), " I do not think it is a sensible decision. I do not think that case could be possibly so decided now if the question arose for the first time ; and I am not disposed to extend it. On the other hand, I do not wish to shake titles ; and I shall do precisel}^ what our predecessors have always done — leave the case where it is." Bowen, L.J., went even further, saying, " I agree with the late Master of the Eolls that the case is not one the precedent of which is really applicable to other cases. In most cases, there is sure to he a context u-Jiich disj)laces the conclusion at icldcJi the court arrived in that instanced The reader is therefore warned that Doe V. Biggs cannot be safely relied upon as a precedent. Nevertheless it was more recently followed by Stirling, J., in lie Adams and Perry's Contract {e). So, again, where the trustees are to exercise any control or discretion they take some estate. For instance, where the beneficiary is empowered to give receipts for the rents with the approbation of the trustees {f) ; or the trust is for the (a) Per Parke, J., Barker v. Greenicood (1838), 4 Mee. & AV. at p. 429 ; Doe v. Biggs (1809), 2 Taunt. 109 ; Doe v. Bolton (1839), 11 Ad. &E1. 188. {b) Barker v. Greenivood, guurd : Wltite v. Parker (1835). 1 IJing. N. ('. 573 ; ^hajtlnnd v. Hinith (1780), 1 Uro. C. (J. 75. (c) (1809) 2Tauut. \m ; Baker V. ir/n/r (1875), L. K. 20 Ya\. 166, 171. (d) [1891] 1 Ch. 258 ; and see Ee Tanqueray-Willaume and Landau (1882), 20 Ch. D. 465. (e) [1899] 1 Ch. 554. (/) Gregoni v. Henderson (1813), 4 Taunt. 772; and see also Davies to Jones and Evans (1883), 24 Ch. D. 190, where a legal estate was implied without any devise to the trustees. But «'/". Re Cameron, Nixon v. Cameron (1884), 26 Ch. D. 19. Cases in which Trustee Takes any Estate. 105 separate use of a married woman (in cases where the Married Art. 35. Women's Property Act, 1882 (45 & 46 Vict. 75), does not apply), who consequently requires protection, the trustees take the legal estate (r/) ; at all events, where the trust is created by will. But where it w^as created by deed, the common law courts, not recognising the separate estate of a feme covert, held that such a trust was a simple trust, and therefore came within the Statute of Uses Qi). However, it seems more than questionable whether, having regard to the Judicature Acts, this would now be followed. It is, however, apprehended that in cases to which the Married Women's Property Act applies the trustee would not now take the legal estate, because the power of the husband no longer exists. Where property was devised to trustees charged with pay- Charge of ment of debts, and subject thereto in trust for A., there, as ^'^^^^' the trustees were not directed to ixiy the debts, they had no duties, and consequently took no estate (i). It is, however, suggested that in the case of wills coming into operation between Lord St. Leonards' Act (22 & 23 Vict. c. 35) and the Land Transfer Act, 1897, this might not be so, as in such cases the former Act casts the duty of selling the property on the trustees. Anyhow, they always took the legal estate if they had to pay the debts {k). In Houston v. Hughes (/), it was held that (notwithstanding Freeholds or the Statute of Uses), under a devise of freeholds and copy- copyho^^s m ^' . . one trust, holds to A. and his heirs, in trust for B. and his heirs, the circumstance that A. took an estate in the coj^yholds was an argument in favour of an intention that he should take the legal estate in the freeholds. However, this doctrine was dissented from by Jessel, M.E., in Baker v. White (m), and it is clear that, even if it could be supported in the case of a will, a similar limitation in a deed would be construed far more strict!}-. So, where lands are devised unto and to the use of trustees Devise to in trust for B., the trustees take the legal estate irrespective {Justera!*^ of any active trust (ji). (g) HaHon v. HaHon (1798), a direction to the trustees to pay 7 T. R. 652. But query whether debts, Spence v. Spence (1862), this would be so since the Mar- 10 W. R. 605 ; Crenton v. ried Women's Property Act, 1882. Creaton (1856), 3 Sm. & G. 386 ; (/i) Williams v. Wckers (1845), and Re Brooke, Brooke v. Brooke, 14 Mee. & W. 166 ; see Nash v. [1894] 1 Ch. 43. Ash (1862), 1 H. & C. 160. (1) (1827) 6 B. & C. 403. (^) Eenriek v. Lord Beauclerk (m) (1875) L. R. 20 Eq. 16G ; (1802), 3 Bos. & P. 175. approved by Stirling, .T., m Re (k) Smith V. Smith (1861), 11 Townsend's Contract, [1895J 1 C. B. (N. s.) 121 ; Marshall v. Ch. 716. Gingell (1882), 21 Ch. D. 790; {n) Doe v. Field (1831), 2 and see as to what amounts to B. & Ad. 664. o2 196 The Administration of a Trust. Art. 35. Trust to convev to beneficiaries. r<)wer of -ale given to trustee. Again, even where the active trust is of a trivial description, yet, if it impHes an intention to vest the legal estate in the trustee, effect will be given to that intention. Thus, if a testator devises Greenacre to A. and B. and their heirs, upon trust forthwith to convei/ and assure the same to C. in fee, A. and B. will take the legal estate, for they have an active duty to perform, viz., to convey it to C. (o). The circumstance that a testator gives his trustees a power to sell, lease, or mortgage has in several cases been held to show that they were intended to take the legal estate in fee, for the exercise of the power might become an active duty (jj)- But in lie Lashmar, Moody v. Pen/old (q), the Court of Appeal considered that at all events a power of sale might take effect as a common law power and therefore did not necessarily import a devise of the fee simple to the trustee. It seems difficult to reconcile this case with the older cases (j:>) at common law, but being a decision of the Court of Appeal it would, it is presumed, govern the question in future. Art. 36. — TJic Qaantitij of Estate taken hij the Trustee of Lands. Whenever, under the preceding article, a trustee takes a legal estate of some kind in land, the quantity of that estate is determined by the following principles : (a) If the settlement is a deed, it will be construed strictly, and the estate of the trustee will not be enlarged or diminished by any reference to the exact estate required to carry out the trust (/•), unless a strict construction w^ould lead to an inconsistency (.s). (o) Doc V. Kdlin (1836), 4 Ad. 6 El. 582 ; Boe v. Bolton (1839), 11 Ad. & EI. 188 ; Van Grutten V. Foxwell, [1897] A. C. 658. Even where the tenant for life is to receive the rents, Keene v. Deardon (1807), 8 East, 248. (p) WnlHon V. Pearson (1848), 2 Ex. 581 ; J)oe v. Ewart (1838), 7 Ad. & El. 636. (q) [18911 1 Cb. 258. (r) Cooper v. Kynock (1872), L. K. 7 Ch. 398; Blfilcer v. Anecombe (1804), 1 Bos. & P. (N. R.) 25 ; Venables v. Morris (1797), 7 T. R. 342 ; Wykham v. iryA-;mm(1811), 18 Ves. 395, per Lord Eldon ; Colmore v. Tyndall (1828), 2 Y. & J. 605. If a sufficient estate be not given to the trustee, it is conceived that it would be ground for rectifica- tion (see Re Bird's Trusts (1876), 3 Ch. 1). 214). (s) Curtis V. Price (1805), 12 Ves. 89 ; Beaumont v. Marquis of Salisbury (1854), 19 Beav. 198. Quantity of Estate taken by Trustee of Lands. 197 (b) If the settlement is a will dated before the Wills Art. 36. Act, 1887 (1 Vict. c. 26), the legal estate — given to a trustee will be enlarged or dimi- nished to such an estate as will enable him to perform the trusts ; and if no words of limitation are used, the estate will be limited to a definite or indefinite term of years, unless the trust requires the trustee to take the fee(^^). (c) If the settlement is a will executed since the Wills Act, an indefinite devise to a trustee jn-imd facie passes the fee simple, or other the whole estate of the testator ; and if the trusts by their nature extend over an indefinite period, that presumption is irrebuttable. But if, on the face of the will, it is apparent that an estate pur autre vie would certainly enable the trustee to fulfil all the trusts, he will take that estate only, notwithstanding a limitation to him and his heirs, unless there is a clear intention expressed that he shall take the fee or some other defined estate {u). (t) CordaVs Case (1594), Cro. term of years absolute or deter- Eliz. 316 ; Doe v. Simpson minable, or an estate of freehold, (1804), 5 East, 162; Acldand v. shall be given to him expressly Lutleij (1839), 9 Ad. & El. 879 ; or by implication. Section 31 Heardson v. Williamson (1836), enacts, that where any real estate 1 Keen, 33; Doe v. Nichols shall be devised to a trustee with- (1823), 1 B. & C. 336 ; Watson v. out any express limitation of the Pearson (1848), 2 Ex. 581 ; estate to be taken by such Bush V. Allen (1695), 5 Mod. 63 ; trustee, and the beneficial interest Doe V. Homfrai/ (1837), 6 Ad. & in such real estate, or in the El. 206. surplus rents and profits thereof, (m) Sub -paragraph (c) of this shall not be given to any per.son article is intended and believed for life, or shall be given for to give the effect of ss. 30 and 31 life, but the purposes of the of the Wills Act (1 Vict. c. 26). trust may continue beyond the By the first of these sections it life of such person, such devise is enacted, that where any real shall be construed to vest in estate (other than or not being such trustee the fee simple or a presentation to a church) shall other the whole legal estate be devised to any trustee or which the testator had power to executor, such devise shall be dispose of by will, and not an construed to pass the fee simple, estate determinable when the or other the whole estate or purposes of the trust shall be interest which the testator had satisfied. Both these sections power to dispose of by will, in have been subjected to much such real estate, unless a definite criticism, and, strange and almost 198 The Administration of a Trust. Art. 36. Sub-Paragraph (a). Gift by deed to trustees and their heii-s. Inconsistent limitations. In Cohnorc v. Tyndall {x), under a deed, lands were limited to the use of A. for life, with remainder to the use of B. and his heirs during the life of A., to support contingent remainders, remainder to the use of C. for life, remainder to the same B. and his heirs during the life of C. to support contingent remainders, remainder to the first and other sons of C. in tail male, remainder to divers other uses, remainder to the said B. and his heirs (without saying during the life of the tenant for life) to support and preserve contingent remainders, with divers remainders over. The question arose whether, under the last limitation to B. and his heirs, he took the fee simple, or whether he only took that which was necessary for the purpose of the trust, namely, an estate pur autre vie. But the court held that although the estate given to the trustee seemed to be larger than was essential to its purpose, it was not a sufficient ground for restricting an estate limited hy deed to a trustee and Ids heirs to an estate for life. But even in a deed, where there are limitations which, on a strict construction, would be inconsistent and repugnant, the court will, by su2)plying obviously omitted words, endeavour to carry out the intention. Thus in Curtis v. Price (y) the facts were as follows. A deed of settlement purported to convey freeholds to P. and J. and their heirs, to the use of M. for life; remainder to the use of E. (his wife) during widowhood ; but if she should marry again, to the use of P. and J. and their heirs, in trust out of the rents to pay E. an annuity, and to apply the residue to the maintenance of the children of M. and E. ; with remainder, after the decease of the survivor of M. and E., to the use of P. and J. for 1,000 years, upon divers trusts. It was held that, as the limitation of the 1,000 years' term to P. and J. was absolutely incon- sistent with an intention to give them the fee, the limitation incredible as it may appear, it is believed that the real history of the two sections is that they were drafted as alternative ones, but, by some carelessness, were both allowed to remam in the Act when passed (see i^er Jessel, M.R., Freme v. Clement (1881), 18 Ch. D. at p. 514). Their meaning is by no means clear ; but it is apprehended that their effect is as above stated (see Hawkins Wills, 30). {x) (1828) 2 Y. & J. 605 ; and see also Coojjer v. Kynock (1872), L. R. 7 Ch. 398 ; and lie White and Uindle's Contract (1877), 7 Ch. D. 201. iy) (1805) 12 Ves. 89; and see Beaumont v. Marquis of Salisbury (1854), 19 Beav. 198. Quantity of Estate taken by Trustee of Lands. 100 Gift by will to trustees and their heirs. Larger estate not implied to rectify testator's mistake. to them and their heirs must be cut down to an estate during Art. 36 the hfe of E. -^ ' Sub-Paragraphs (b), (c). If the Hmitations stated in Colmore v. Tyndall (supra), had been declared by a will, whether executed before or since the Wills Act, 1837 (1 Vict. c. 26), instead of by a deed, the decision would clearly have been different. Thus, if lands are devised to trustees and their heirs, upon trust to pay the net rents to A. for life, and after A.'s death in trust for B., the trustees, notwithstanding the w'ords of inheritance, only take an estate j^ur autre vie (viz., during A.'s life) ; for the active trust reposed in them ends with the life of A., and consequently the purposes of their trust do not require them to take a larger estate [z). Nor will the court imply a larger estate (where it is not necessary to carry out the definite trusts of the will), on the ground that by doing so effect would incidentally be given to the testator's intentions. Thus, if freeholds be given to A. for life, with remainder to trustees and their heirs in trust to preserve contingent remainders, with remainder to the heirs of A., it is obvious that, if the trustees could be held to take the fee in reversion expectant on A.'s life estate, the rule in Shelley's Case would be rendered inapplicable, and the obvious intention of the testator to give A. a mere life interest would be preserved. But, notwithstanding this, the court holds that the trustees only take an estate pur autre vie, that being sufficient to enable them to preserve contingent remainders, which alone was the object of the trust reposed in them {a) . On similar grounds, the court will not imply a larger estate in the trustees than the trust requires, merely because, if they took such larger estate, it would support a contingent remainder, and so prevent it from failing for want of a particular estate of freehold {h) . On the other hand, where, by will, the rents of certain lands (which are not expressly devised to any one) are directed to be paid to a married woman's separate use by the testator's executors, there is an implied devise to the executors of such Estate in trustee to preserve coutingent reiiiaintier not implied. Diiection to pay rents to married women. {z) Blagrave v. Blagrave (1849), 4 Ex. 550 ; Watson v. Pearson (1848), 2 Ex. 581 ; Doe V. Cafe (1852), 7 Ex. 675. (a) Nash v. Coates (1832), 3 B. & Ad. 839 ; Eaddelsey v. Adams (1856), 22 Beav. 266. (h) Gunliffe v. Braucher {ISl 6), 3 Ch. D. 303, and cases there cited ; Fesiing v. Allen (1S43), 12 Mee. & W. 279 ; Marshall v. Gingell (1882), 21 Ch. D. 79U. 200 The Administration of a Trust. Art. 36. Trusts requiring a fee simple imply that estate. Clear inten- tion to vest fee, although not required for trust. an estate iu the land as will enable them to execute the trust (c), viz., an estate jytir autre vie. So if land be devised to trustees without any words of limitation, by a will executed since the Wills Act (1 Vict, c. 2G), and they are expressly directed to sell (d), or impliedly authorised to do so (e) (as by a direction to pay debts (/')), whether certainly or contingently, or are authorised to lease or to mortgage (//), or to allow maintenance to infants during a period of suspended vesting (//), or to do any other act which requires the complete control over the property (/), the trustees will take an estate in fee simple, or other the whole estate which the testator could dispose of. With regard, however, to wills executed before the Wills Act, this would not have been so except under a direction to sell (A) ; for a trust to mortgage or lease, or a trust to maintain infants, could equally have been carried out by a trustee who had merely an indefinite term of years (1) . And so, too, the trustees will take the fee simple where there is a clear intention to give it them, notwithstanding that a less estate would certainly enable them to perform the trust. Thus, if lands be devised unto and to the use of A. and his heirs, in trust for B. and his heirs, A. takes the legal fee simple (?n), because there can be no other meaning given to the words used. But a devise unto and to the use of A. and his heirs, in trust for A. for life, and after A.'s death a direct devise to C, gives the trustees merely an estate (c) Bush V. Allen (1695), 5 Mod. 63 ; sed qucere since the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75). (d) Shaw V. Weigh (1828), 2 Str. 798 ; Bagshaw v. Spencer (1748), 1 Ves. Sen. 142 ; Watson V. Pearson (1848j, 2 Ex. 581 ; Cropton V. Davies (1869), L. R. 4 C. P. 159. (e) Gibson v. Lord Montfort (1750), 1 Ves. Sen. 485. But (/. dicta of LiNDLEY, L.J., in lie Lashmar, Moody v. Penfold, [1891] 1 Ch. at p. 267, where he considered that a power of sale might take effect as a common law power apart from any estate. (/) Marshall\. Gingell, (iSS2), 21 Ch. D. 790 ; L'e Brooke, Brooke V. Brooke, [1894] 1 Ch. 43 ; but see Carlyon v. Truscolt (1875), L. R. 20 Eq. 348. ig) Doe V. Ewart (1838), 7 Ad. & El. 636; Watson v. Pearson, swpra ; Doe v. Willan (1818),2B.&Ald. 84; BeEddeVs Trusts (1871), L. R. 11 Eq. 559. {h) Berry v. Berry (1878), 7 Ch. D. 657 ; Be Tanqueray- Willaume and Landau (1882), 20 Ch. D. 465. (i) Villiers v. Villiers (1740), 2 Atk. 71. (k) Doe V. Ewart (1838), 7 Ad. & El. 636. (1) See GordaVs Case (1594), Cro. Eliz. 316 ; Doe v. Simpson (1804), 5 East, 162 ; Ackland v. Lutley (1839), 9 Ad. & El. 879 ; Heardson v. Williamson (1836), 1 Keen, 33. (m) Doe V. Field (1831 ), 2 B. & Ad. 564. Quantity of Estate taken by Trustee of Lands. 201 during the life of A.(«); for the remainder is not limited by Art. 36. way of trust. So where there was a devise of freeholds and copyholds to trustees and their heirs, in trust for A. for life for her separate use, and after her death upon trust to ataml ariaed of them for such persons as she should l)y will appoint, with a direct devise of the properties to A. in fee in default of appointment, it was held that the trustees took the legal estate in fee. And Stirling, J., intimated that even if the power of appointment had not been executed he should have held that the ultimate gift to A. in fee was equitable, and not an executory legal devise (o). Where a testator devises property to trustees and their Trust to heirs, upon trust to pay the net rents to A. for life, and .^J',"[i';e/" after his death upon trust to convey the property to B. in fee simple, the direction to convey constitutes a special and active trust, which necessarily implies that the trustees should have the legal fee in them ; for noii dat qui noii habet (p). Again, where there are recurring trusts which require the Uecurring legal estate to be in the trustees, with intervening limitations ^'^'*'''- which, taken alone, would vest the legal estate in the persons beneficially entitled, and there is no repetition before each of the recurring trusts of the gift of the legal estate to the trustees ; then the legal estate is held to be in the trustees throughout, and the intermediate estates are equitable only (q). To show the importance of this principle, it is well to refer to the leading case of Harton v. Harton (q). There the limitations were to trustees, in trust for A. for life for her separate use, remainder to the heirs of her body, remainder to B. for life, for her separate use, with remainder to the heirs of lier body. Here the separate use gave the trustees an estate during A.'s life, and also during B.'s life ; but had it not been for this last trust, they would not have taken the legal estate during the intermediate trust in favour of the heirs of A.'s body. As, however, there was a recurring trust, they did so; and, therefore, as the estate of A., and the estate given to the heirs of her body, were both equitable (n) Doe d. Woodcock v. Bar- (q) Harton v. Uarton (1798), thro2) (1814), 5 Taunt. 382. 7 T. K. 652 ; Hawkins v. X«*- (o) Be Townsend's Contract, combe (1818), 2 bwans. 3/o; [18951 1 Ch 716 Brown v. Whiteu-ai/ (184b), 8 (p) Doe V. Ediin (1836), 4 Ad. Hare, 145 ; Toller v. Atlwood & El. 582 ; Doe v. Bolton (1839), (1850), 15 Q. B. 929. 11 Ad. &E1. 188. !02 The Administration of a Trust. Art. 36. estates, the rule in Shelley's Case applied, and A. took an estate tail. Harton v. Harton has been followed by the House of Lords in Van Grutten v. Foxwell (r), where precisely the same point arose. In Collier v. Walters (s) a testator, by will dated before the Wills Act, 1837 (1 Vict. c. 26), devised his estate to trustees and their heirs, upon trust that they and their heirs should stand seised of the same during the life of W. C, and also until the whole of the testator's debts and the legacies thereinafter mentioned were paid, upon trust to let the same, and apply the rents in discharge of his debts ; after paj^ment of which they were to apply the rents in payment of legacies, and finally hold the property upon trust to pay the rents to W. C. and his assigns during his life. And after the decease of W. C. and payment of the debts and legacies and all expenses, the testator devised the property to the heirs of the body of W. C, with remainders over. In 1830, W. C, relying on the rule in Shellei/s Case, suffered a common recovery and barred the entail. Upon his right to do this coming in question. Sir George Jessel, M.R., held that the trustees took the legal fee, and that consequently W. C, under the rule in Slielley's Case, took an equitable estate tail. Art. 37. — TJie Effect of the Statutes of Limitation on the Trustee's Estate. (1) A trustee of an express trust is not divested of the legal estate by the exclusive possession even of a sole beneficiary who is absolutely entitled for the statutory period. (2) A trustee, like a beneficial owner, may be barred by the adverse possession of a stranger ; and if he be so barred, his beneficiaries will be barred also. But beneficiaries will not be barred by the adverse posses- sion of a person who claims through or under, and not adversely to the trustee, unless he be a purchaser for value ; and even then time will only run against bene- ficiaries under disability from the cesser of it, or against reversioners from their interests vesting in possession. (r) [1897] A. C. 658. (s) (1873) L. R. 17 Eq. 252. Statutes of Limitation and Trustee's Estate. 203 (3) {Submitted.) Where one of several trustees dis- Art. 37. appears, the others, or, if a new trustee be appointed in his place, the new trustee and the continuing trustees, will acquire the legal estate in the entirety by possession for the statutory period. Paragraph (1). Before the Act of William IV. it was held that the long-con- History ..f tinned possession of a beneficiary was no bar to the estate of JJ'; ''''!'' "" the trustee, as it was not adverse. This was preserved by s. 7 of 3 & 4 Will. IV., c. 27, by which it was enacted that a ccatui que trust is not to be deemed a tenant at will of the trustee so that the latter would be barred by the possession of the cestui que tnist for the statutory period. The probable intention of this was to prevent one beneficiary getting a possessory title as against others, but the somewhat incon- venient efi'ect is that an outstanding legal estate in a bare trustee can never be acquired by his sole beneficiary by possession, however long continued (t). Whether the rule applies to constructive trusts is not alto- (jufpre gether free from doubt. In Driunmond v. Sant(t) it was held whether ^ , , ^ ' rule applies that where a lessor was under an implied trust to grant a lease to construe- to a lessee the latter could not get an adverse title against the *'^'*^ trusts, lessor under s. 7, and this was expressly accepted by Kay, L.J., in Warren v. MiLrraij{n) as applying the exception in s. 7 to implied as well as to express trusts. On the other hand, in Doe V. Rock {x) it was held that a purchaser who paid his money but never obtained a conveyance, acquired the legal estate by possession for the statutory period, notwithstanding that the vendor was an implied trustee for him ; and the same conclusion was arrived at by Fry, J., in Sands to Thompson {ij), where a mortgage had been paid off but no reconveyance taken. It would seem, however, from a careful perusal of the judgment of Kay, L.J., that he only excepted implied trusts from the operation of the statute, where the implied trustee had rights to recover possession in certain events (as the lessor had in that case) ; and that where the implied trustee is a mere bare trustee of the legal estate without either rights or duties (other than that of executing {t) Garrard v. Tuch (1849), 8 explained in Drummond v. Sunt, C. B. at p. 251 ; Drummond v. swpra, at p. 768. Sant, per Blackburn, J. (1871), (x) (1842) Car. &• Af. 540. L. R. 6 Q. B. at p. 768. (i/) (1883) 22 Cli. D. 614. [u) [1894] 2 Q. B. at p. 657, 20-1 The Administration of a Trust. Art. 37. Rule does nut apply as between beneficiaries ami strantrers. Question whether new trustees can give statutory title as against old trustees where no conveyance or vesting order. a conversance) the statute will run against him unless he is trustee under an express trust. Paragraph (2). It is well settled that " the rule that the Statute of Limi- tations does not har a trust estate, holds only as between cestui que truHt and trustee, not between cestui que trust and trustee on the one side and strangers on the other, for that would make the statute of no force at all, because there is hardly any estate of consequence without such trust, and so the act would never take place ; and therefore, where a cestui que trust and his trustee are both out of possession for the time limited, the party in possession has a good bar against them both "(.-). It has sometimes been suggested (but still remains doubtful) whether, in such cases, the statutory period may be extended where the cestui que trust is under disability, or is merely entitled in reversion, to the same extent as he would be if his estate were legal and not merely equitable. It is appre- hended, however, that it cannot be so, as the cestui que trust could only bring an action of ejectment in the name of the trustee who is ex hypothesi barred {a). Anyhow, where the statute has once begun to run against a cestui que trust abso- lutely entitled, it will not be stopped by reason of the subsequent disability of persons claiming through or under such cestui ([ue trust (b). Paragr.\.ph (3). It sometimes happens that a trustee goes abroad and is never heard of again. In such cases, of course, the proper course is in due time to appoint a new trustee in his place and to execute a vesting declaration under s. 12 of the Trustee Act. But in the investigation of titles one sometimes finds that this has not been done and no vesting order obtained, and the question then arises whether the de facto trustees have acquired the legal estate in the entirety under the Statute of Limitations. It seems clear that in the simple case of a trustee dis- appearing for twelve years and no appointment of a new {z) Per Lord Hakdwicke, (1812), 2 B. & B. at p. 75. LewelUn v. Mucknoilh (1740), 2 Eq. Cas. Abr. 570, and to same eliect 2>er Lord Kedesdai.e in Jlovenden v. Annesley (1806), 2 Sch. & Lef. 029, and per Lord Manneks in I'entland v. Siolces {a) SeeLewiu on Trusts (12th ed.) 1130, where the subject is discussed. (b) Murray v. Watkins (1890), 62 L. T. 796 ; Gamer v. Win- grove, [1905] 2 Ch. 233. Statutes of Limitation and Trustee's Estate. 20;j trustee in his place the legal estate in the entirety will he Art. 37. acquired by the continuing trustees under s. 12 of the Real Property Limitation Act, 1833, which expressly includes the case of joint tenants holding for the benefit of any person or persons other than the joint tenant out of possession. And it seems equally clear, that where the one who disappears is a sole trustee, and new trustees are appointed in his place, they will, as joint tenants, acquire the legal estate in the entirety by possession for the statutory period. But where Kxccption one new trustee is appointed to act iointlv with the continuintr '^'"^''P °"? '■ ^ ii ./ «D new trustee trustees ni place of the trustee who has disappeared, it seems appointed questionable whether he and the other trustees would acquire sonieU^the a possessory title to the entirety in twelve years, and it is diffi- <>i'i ones, cult to see how they could possibly do so as joint tenants, which requires unity of title. The present writer is not aware of any authority on the point, which he considers eminently doubtful, but the bent of his opinion is that the new trustee would in course of time acquire the share of the displaced trustee as tenant in common with the continuing trustees, who would still continue to be joint tenants inter se. Art. 38. — Banh-uptcji of the Trustee. (1) The property of a bankrupt divisible among his creditors, does not comprise property held by him as trustee for any other person (c), notv^ithstanding that it is property in his order and disposition at the commencement of the bankruptcy {d). (2) If he has converted it into money or other pro- perty which would be subject to the trust in the hands of the trustee, it will remain so subject notwithstanding the trustee's bankruptcy {e). The only part of this rule which requires any illustration is (c) Bankruptcy Act, 1883 (1873), L. R. 17 Eq. 113; Ex (46 & 47 Vict. c. 52), s. 44. It imrte Marsh (1744), 1 Atk. 158. may be conveniently mentioned As to constructive trustees, see here that on the conviction of a Ex ixirte Pease (1812), 19 Ves. trustee the trust property does at p. 46, and Wliil/ield v. Brand not vest in the administrator (1847), 16 Mee. & \V. 282. appointed under the Forfeiture (c) Frith v. Cartland (1865), Act, 1870 (33 & 34 Vict. c. 23). 2 Hem. cS^ M. 417 ; Re IlalleWs See Trustee Act, 1893 (56 & 57 Estate, Knatchhull v. llnUett Vict. c. 53), s. 48. (1880), 13 Ch. D. at p. 71!'. (d) Ex parte Barry, Be Fox 206 The Administration of a Trust. Art. 38. sub-clause (2); but as the doctrine of following trust property into other property into which it has been converted is fully treated of hereafter, the reader is referred to Art. 96 (infra). Power to commence actions. Curtesy and dower. Trustees of copyholds must be admitted. Trustees prove in bankruptcies Art. 89. — 77/c Incidents of the Trusicc^s Estate at Laic. At law, the estate of the trustee is subject to the same incidents as if he were also beneficial owner, except where such incidents are modified by statute. Thus, he is the proper person to bring actions arising out of wrongs formerly cognizable by common law courts, and which necessitated the possession of the legal estate in those bringing them (/). So, at law, the estate of the trustee in real property was liable to curtesy (r/), dower (/i), and, if of copyhold tenure, to freebench (?') ; but of course the persons so taking could only take as trustees for those beneficially entitled (A;), Since the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), the devolution of freehold trust estates is entirely changed, and dower and curtesy no longer attach. Formerly the estate of a trustee was also liable to forfeiture and escheat, but there can no longer be forfeiture or escheat of a trust estate (0- So, again, trustees of cojDy holds who take an estate must be admitted by the lord of the manor on the customary terms (m). Where a debtor to the trust estate becomes bankrujDt, the trustee is the proper person to prove without the concurrence of the beneficiaries (n), unless in the case of a simple trust. Where, however, it is probable that the debtor has paid the beneficiaries direct, it lies in the discretion of the judge to require their concurrence in the proof (o). (/) 3Iay V. Taylor (1843), 6 Man. & Gr. 261 ; and see K. S. C, 1883, O. 16, r. 8. ig) Bennet v. Davis (1725), 2 P. Wms. 316. {h) Noel V. Jevon (1678), Freem. 43 ; Nash v. Preston (1630), Cro. Car. 190. (i) Uinton v. Uinton (1755), 2 Ves. Sen. 631. (tc) Noel V. Jevon, supra ; Lloyd V. Lloyd (1843), 4 Dru. & War. 354. (l) 13 & 14 Vict. c. 60, s. 46 ; and see Trustee Act, 1893 (56 Sc 57 Vict. c. 53), s. 48. (m) Wilson v. Hoare (1831), 2 B. & Ad. 350. («) Ex parte Green (1832), 2 Deac. &C. 116. (o) Ex parte Dubois (1787), 1 Cox, 310 ; Ex parte Gray (1835), 4 Deac. & C. 778. Incidents of Trustee's Estate at Law. 207 The trustee of a privcate trust is, as legal owner, lial)le to ],c Art. 39. rated in respect of the trust property (_2)). ^ — If the trustee, in pursuance of the trust, carry on a business 'hauTL for the benefit of the beneficiaries, he will yet be personally r!'"^"- liable to the creditors of the business (q), and may be made a nZlZ^. bankrupt (r). ' liable t.. A trustee in whom the legal estate is vested, is entitled to Tvu^v!^' the custody of the deeds (s); but the beneficiaries are entitled, ^JJ^JI^jl '7 at all reasonable times, to inspect them (t). ' deells.'* " On the other hand, the ordinary legal incident of voting for Not cntidcd members of Parliament does not belong to the trustee in l".!'!?.';^^'"^ respect of the trust estate, as the Act 6 & 7 Vict. c. 18, s. 74, confers that right on the beneficiary. franchise. Art. AO.— Trustee^ s Estate on Total Failure of Beneficiaries. (1) Where a trust (as distinguished from a mere executorship), does not exhaust the whole of the trust property, and there is no one in whose favour it can result, it is now held in trust for the Crown (?<). (2) Where, however, the person to whom it would have resulted died before August 14th, 1884, intestate and without an heir, and the trust property was real estate, it devolved beneficially on the trustees in whom the legal estate was vested, absolutely (x). Paragraph (1). From the time of Lord Thurlow's decision in Middleton v. lioim Spicer (//) it has been an accepted proposition of law that ip) B. V. Sterry (1840), 12 6 Ves. 174. Ad. & El. 84 ; B. v. Staiileton (t) Wynne v. Uumherston (1863), 4 B. & S. 629. (1858), 27 Beav. 421. (g) Farhall v. FarJiall (1871), (») As to personal estate, see L. R. 7 Ch. 123; Owen v. Dela- Taylor v. Raygarth (1844), 14 mere (1872), L. R. 15 Eq. 134. Sim. 8 ; Middleton v. Spicer But of course lie lias a right to (1783), 1 Bro. C. C. 201 ; aud as indemnity, astowliichsee Art. 78, to real estate, see 47 & 48 Vict. infra. c. 71, s. 4. (r) WigUman v. Townroe (x) Burgess v. Wheate (1759), (1813), 1 Mau. & S. 412; Ex 1 Eden, 177; and Be Lash mar, parte Garland (1804), 10 Ves. iMoody v. Tenfold, [1891] 1 Ch. 110: Farhall v. Farhall, supra. 258. See infra. Art. 78. iy) (1783), 1 Bro. C. C. 201. (s) Evans v. Bicknell (1801), vacantia. 208 The Administration of a Trust. Art. 40. chattels real or personal vested in a person as a mere trustee upon private trusts which have failed are as a general rule held b}' him as a trustee for the Crown of bona vacantia. It has been illustrated by many cases which show that the possession conferred on the trustee for purposes of jurisdiction or administration gives him no beneficial title, as by occupancy or otherwise, which he can conscientiously set up against the Crown (z). Thus, where personal estate is bequeathed to A. (whether A. be also executor or not) ujjon trusts which fail, and there is no next of kin of the testator, the trustee holds in trust for the Crown ; for by the useof the words "upon trust " all notion of the trustee taking beneficially is excluded (a). Nor is the rule con- fined to trusts created by will, but equally applies to trusts in^^r vivos. For instance, where a trustee in bankruptcy held a divi- dend intrust for the bankrupt's creditors, one of whom had been a corporation which had since the bankruptcy been dissolved, it was held that the dividend was held in trust for the Crown (h). Exception There is, however, an exception or quasi-exception to the in case of rules with regard to executors, where there is no gift to them rcsici un r V personalty. Or anyone else of the residuary personal estate, and no trust of residuary personalty is declared and there is no next of kin. In such cases, even when there were next of kin, the law prior to 1830, as stated by Kindersley, V.-C. (c), (adopted by Cozens- Hardy, M.R., in lie Glnkman, Attorney-General v. Jefferys {(!)), was that the appointment of executors was a gift to them of the personal estate ; and a court of equity would not deprive them of the beneficial interest unless it saw that a strong and violent presumption arose from the will, that the inten- tion of the testator was that the executors should not virtute officii take the personalty ; and if there was that violent presumption, then a court of equity held the executors trustees for the next of kin. Then in 1830 an Act was passed (11 Geo. IV. & 1 Wm. IV. c. 40) taking away this right of executors unless it appeared by the will that they were {z) Barclay v. Russell (1797), Ex imrte Att.-Gen.,[\S%Q]l Q.B. ?j Ves. .lull. 424 ; Powell v. 325 ; and see per James, L.J., MerreU (1853), 1 Sm. & G. 381 ; in Ashley v. Ashley (1877), 4 Cradock v. Owen (1854), 2 Sm. &c Ch. D. at p. 763. But cf. Re (x. 241 ; Read v. Stedman Ruddington Land, [1909] 1 Ch. (1859), 26 Beav. 495; Cunnack 701. V. Edwards, [1896J 2 Ch. 679 ; (c) Dacre v. Patrickson (1860), Dyke v. Walford (1846), 5 Moo. 1 Drew. & Sm. 184. P. C. 434. {d) [1908] 1 Ch. 552, at p. 555 ; (a) Read v. Ntedmnn, su'pra. and see Re Roby, Howlett v. (b) Re Jlujfjinson and Dean, Newington, [1908] 1 Ch. 71. Trustee's Estate on Failure of Beneficiaries. 209 intended to take beneficially ; but this statute expressly Art. 40. excepted the case where there were no persons to take nmhv an intestacy. In such cases, therefore, the old law still appHes, viz., that the executors take as against the Crown unless there ileal estate. is the violent presumption above referred to (/,1 (1907), 24 T. L. R. 51. ' (1888), 39 Cli. D. 08(5. (i) Plaskitt V. Eddis (1898), {o) Re Harst, Addison \. Top p 79L. T. 136. (1892), 67 L. T. 96: Youde v. {k) Bennett v. Burgis (1846), Cloud (ISli), h. II. 18 K(i. 034. 214 The Administration of a Trust. Alt. 41. Must not allow pro- perty to remain under sole control of co-trustee. Should invest money as soon as possible. notice of any incumbrances (p). Nor is he liable if he honestly, but erroneously {e.g., from forgetfulness), informs an intended incumbrancer that he has no knowledge of any prior incumbrance (7). A trustee who leaves the trust fund in the sole name, or under the sole control, of his co-trustee will be liable if it be lost(r). A trustee who keeps money for an unreasonable length of time without investing it is liable if it be lost, however pure his motives may have been (.s). Art. 42. — Dutij of Trustee to obey tlie Directions of the Settlement unless Deviation sanctioned hif the Court. (1) A trustee must obey the lawful directions of the settlement if practicable, except so far as these direc- tions are modified by the consent of all the beneficiaries collectively. (2) Where, however, there arises an emergency or state of circumstances not foreseen or anticipated by the settlor, which renders it desirable that the strict terms of the trust should be departed from in order to prevent obvious injury to the beneficiaries, the court has jurisdiction to sanction such departure [t] ; but it is questionable whether it has a corresponding power to sanction a departure merely in order to render the trust more profitable to the beneficiaries (?/)• (3) A trustee who ventures (without the sanction of the court) to deviate from the letter of his trust, does so under the obligation and at the peril of afterwards having to satisfy the court that the deviation was necessary and beneficial {x). (p) I'hipps v. Lovegrove (1873), L. R. 16 Eq. 80. (q) Low V. IJouverie, [1891] 3 Ch. 82 ; Porter v. Jfoore, [1904] 2 Ch. 367. (r) Leicis v. Nohbs (1878), 8 Ch. D. 591. («) Moyle V. Moyle (1831), 2 Russ. &Myl. 710. (0 He New, [1901] 2 Ch. 534, as modified by Be Tollemache, [1903] 1 Ch. 457, affirmed [1903] 1 Ch. 955. (u) The effect (semble) of Be Tollemache, supra. (.r) IJnrruon v. i?andrtW (1852), 9 Hare, 397. Trustee must Obey Directions of Settlement. 215 Paragraph (1). Art. 42. This is the most important of all the rules relating to the , duties of trustees. It is founded on common sense, and over- ' shadows and modifies all other rules, which must be read as if they contained an expressed declaration that they are subject to any provisions to the contrary contained in the settlement itself. As will be seen, however, in Art. 64, the rule is subject to modification, if all parties beneficially interested are sui juris, and concur in putting an end to or amending the trust. For the beneficiaries collectively, being the only parties beneficially interested, are entitled, at any moment, to depose the trustee, and distribute the trust property between them- selves as they may think fit. The rule is also, as we have seen (ij), not binding upon a trustee where the directions of the settlement are illegal. Another exception necessarily arises where the directions of the settlement are impractic- able (e.fi., if it directs an immediate sale, and no purchaser can be found). If trustees are, by the settlement, directed to call in trust Neglect to moneys, and to lay them out on a purchase, and they fail to P^!!"*^*!?®*^ f'" do so, and the fund is lost, they are liable for the loss (z). directe^i to Similarly if a trustee for sale omits to sell property when it '^'^ ^°' ought to be sold, and it is afterwards lost, although without any default on his part, he is liable for the loss, which would not have happened had he not failed in performing the pre- scribed duty (a). Conversely, trustees of things specifically settled, such as No power lands, chattels, etc., cannot, in the absence of express power, sell p*J.operfv"^*^ them, however beneficial such a sale might heih); unless, unless * indeed, all parties beneficially interested are sui juris and con- f,n.',Hcd*!*^ °^ sent, as to which see infra, Art. 64. And for the same reason, they cannot mortgage such things, e.ff., for repairs or the like (c), without the leave of the court, as to which see Art. 46, iufra. So, where the settlement orders trust funds to be invested Direction on particular securities, the trustees are bound to invest in particSar"" such securities or in those prescribed by statute (as to which securities, see infra, Art. 48). But it would seem that if they are directed to invest in specified securities and none other, they may not even now invest in the securities authorised by the Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 1, the powers of which are (V) Arts. 10 and 28, supra. of a wiU). {z) Craven v. Graddock, [1868] (a) Fry v. Fry (1859), 27 Beav. W. N. 229 (actual decision re- 144. versed by C. A. (1869), 20 L. T. (b) Art. 57, iufra. (N. s.) 638, on the interpretation (c) Art. 57, infra. 216 The Administration of a Trust. Art. 42. JIust observe conditions imposed on their dis- cretionary powers. Cannot accelerate a trust for eale. onl}' exercisable if not forUdden hij the settlement (d). The former, repealed, statutory power contained no such restric- tion {e). It has been held by Kekewich, J., that where trustees were directed to set apart a sum of money to answer an annuity " in any of the investments in which the proceeds of sale and conversion of my estate is hereby authorised," they were restricted to the securities authorised by the will, and impliedly forbidden to invest in securities authorised by the Act: scd qii(ere(f). So, where there are any conditions attached to the exercise of any of their functions, they must strictly perform those conditions. For instance, where they are authorised to lend to a husband with the consent of his wife, they cannot make the advance without first getting the required consent, even though they subsequently get it (.(/). Again, trustees were empowered to vary investments " with the consent of the tenant for life." They sold consols, and first made an investment with such consent upon a con- tributory mortgage (which was not an authorised security), and subsequently called the money in, and icitJwiit such con- sent reinvested it upon a mortgage which was an authorised one. It was held that, although there was no loss of capital, they were nevertheless bound to rejjlace the consols which had since risen in price. For they sold the consols for the purpose of investing in an unauthorised securit}^, which was contrary to the directions of the settlement ; and then, when they realised that investment, they reinvested the proceeds without the consent of the tenant for life, which was again con- trary to the directions of the settlement. In both trans- actions, therefore, they disobeyed the rule now under consideration, and consequent!}^ committed breaches of trust, and were bound to place the beneficiaries in the same position as they would have occupied if no such breach had been com- mitted (/<). The case, however, seems a monstrously hard one. On the same principle, where an estate is given in trust for (d) Ovey v. Ovey, [1900] 2 Ch. 524. (e) Be Wedderburn (1878), 9 Ch. D. 112, decided on s. 11 of Lord St. Leonards' Act, repealed by the Trust Investment Act, 1889 (.'52 & .03 Vict. c. 32). (/) /I'c Owtliwaite, Owthwaite v. Tni/hr, 1 1891 J 3 Ch. 494. (V/) liateman v. Davis (1818), 3 .^Iadd. 98 ; but see Stevens v. Fobertson (1868), 37 L. .J. Ch. 499, where it was held that a con.sent as to the mode of invest- ing the trust fund might be given, ex post facto. (h) Re Massingberd'' s Settle- ment, Clark V. Trelawney (1890), 63 L. T. 296 ; and see also lie Bennison, Cutler v. Boyd (1889), 60 L. T. 859; and Stolces v. Prance, [1898] 1 Ch. 212. Trustee must Obey Directions of Settlement. 21 A. for life, and after his death upon trust for sale, the trustees Ait. 42. cannot sell during the life of A., even with A.'s consent; unless indeed, all parties beneficially interested in remainder are aid juris and consent. For the settlor has prescribed the time at which the sale is to be made, and the trustees must follow out his direction (i). Indeed, it has been held that even the court has no jurisdiction to order an earlier sale (A:); although, of course, if the trust were being administered by the court, and the court did in point of fact order an earlier sale, the trustee would not be liable for obeying the order, and the purchaser would get a good title under s. 70 of the Conveyancing Act, 1881 (44 & 45 Vict. c. 41). It must be pointed out, however, that, notwithstanding such But tenant a trust, and notwithstanding the consequent inabililv of the '"'^f ''f« '"^^y . . '^ -^ •' sell under trustees to sell during the life tenancy, it is now competent for Settled Land the tenant for life himself to sell under the provisions of the ^^^'^' Settled Land Acts, 1882 to 1890, and to cause the purchase- money to be paid to the trustees, they being (by virtue of their future trust for sale) trustees for purposes of those Acts, under s. 16 of the Settled Land Act, 1890 (53 & 54 Vict. c. 69). But a premature sale by trustees cannot be forced on an unwilling purchaser simply because all the beneficiaries are suhsequenthj willing to concur {I), although it would be otherwise if the sale had been made at their request (;»), But although trustees cannot accelerate a sale, it must Tiie inability not be assumed that they cannot accept a debt due to the estate a°safe d(5S^''' before the time named for payment, if, on the facts, it is notneces- obvious that postponement of payment was intended ^o^hl-*^'''^' merely for the benefit of the debtor («). Thus, it is appre- acceptance bended that, where a father covenants in the marriage befoi-e'''if settlement of his daughter, to pay a sum of money to the 'silue. trustees at his decease, the trustees would be quite justified in accepting payment during his lifetime. (/.) Leedham v. Clummer Great NoHhcrn Fail. Co. (1874), (1858), 4 Kay& J. 458; Wantv. 23 W. R. 126; and Carh/on v. Stallihms- (1873), L. R. 8 Ex. Truscott (1875), L. R. 20 Kjn9 a business which is not presently saleable until it can he sold from trust. as a going concern (r) ; selling a business to a company in exchange for shares therein, and holding such shares for a limited period (r) ; holding, for a period, land which has lieen mortgaged to the trustees, and which mortgage they have ()•) Ter Kekewich, J., in Be Tollemachc, [1903] I Cli. 437, affirmed [1903] 1 Cli. 955. 220 The Administration of a Trust. Alt. 42. Jurisdiction only exercised in cases of emergency to prevent manifest injury, and not merely for purpose of improving position of beneficiaries. foreclosed (s) ; authorising the raising of money by mortgage of the trust property, where the estate would be ruined if money were not expended on it(0, or a settled policy would lapse if premiums were not paid (w) ; authorising a sale of a trust policy where it has become impossible to pay the premiums (r); approving a compromise or scheme of family arrangement on behalf of infants who are interested under the trust (,r), and making to an infant a larger allowance for maintenance than the settlor has named where the result would otherwise be to injure the infant's prospects or to cause real property belonging to him to fall into ruin(;/). In the latter case the court has even gone to the extent of allowing subscriptions to charities, on the ground that the testator must have intended that the infant should be brought up and the property maintained in the mode usual amongst gentlemen holding the position to which he was born, so as to keep up the reputation of the family and estate which incidentally involves the payment of subscriptions to local charities (z). The question in such cases is whether there is not a jDaramount intention to be found in the settlement, to which particular directions are to be read as subordinate. It has been said that the court will not sanction something not authorised by the trust, merely because the course pro- posed will be beneficial to the beneficiaries, unless there is some real urgency in the case (a). Nor does s. 3 of the Judicial Trustees Act, 1896, extend the powers of the court in this matter so as to enable it to excuse a contemplated breach of trust (a). For instance, in one case the court refused to sanc- tion the investment of the trust fund in a safe but un- authorised security, although the effect of it would have been primarily to increase the income of the tenant for life, and, secondarily, to enable her to keep up the family home and other- wise to benefit her children the immediate remaindermen (a). (s) See last note. {t) Neill V. Neill, [1004] 1 Ir. II. 513. (ii) Ibid., and Moore v. Ulster Bank (1909), 43 Ir. L. T. 136. {v) Hill V. Trenerii (1856), 23 Beav. 16 ; Beresford v. Beresford (1857), 23 Beav. 292; Be Wells, Bayer v. Maclean, [1903] 1 Ch. 848, {x) Re Wells, Boxjer v. Maclean, [1903] 1 Ch. 848. (y) Be Walker, Walker \. Dun- combe, [1901] 1 Ch. 879 ; and see also Griggs y. Gibson (1866), 14 \V. R. 538 ; Ilavelock v. Ilnveloek (1881), 17 Ch. D.807; Be Collins, (Jollins V. Collins (1886), 32 Ch. D. 229 ; Bennett v. Wyndham (1857), 23 Beav. 521 ; Bevel v. Watkinson (1748), 1 Ve.s. Sen. 93 ; Greenwell v. Greenwell (1800) 5 Ve.s. 194 ; and Barnes v. Boss, [1896] A. C. 625. (z) See note (y), supra. (a) Per Kekewich, J., Bs Tollemache, [1903] 1 Ch. 457. Trustee must Obey Directions of Settlement. 221 It was also held in the same case that the court would A.it. 42. not sanction something the effect of which was to create a new trust and not to administer the existing one. On the other hand, in lie Wells, Bayer v. Maclean (/>), Farwell, J., on behalf of infants, distinctly authorised the extinguishment of an existing trust and the creation of a new one, where the effect was to give the infants vested instead of merely con- tingent interests, saying that in his opinion the Court had ample jurisdiction to authorise such a transaction. The question, therefore, remains somewhat doubtful, as it seems impossible to reconcile the dicta of Kekewich, J., in Re Tollemache (c), with the elaborate judgment of Farwell, J., in Re Wells, Boyer v. Maclean (h). It is, however, suggested that the true rule is that the court (and, it is submitted, the trustees without the sanction of the court, as stated in previous editions of this work (d)), can depart from the trust in order to prevent grave loss or injury to the property or the beneficiaries ; or where the proposed transaction is distinctly and obviously, and not merely speculatively, for the benefit of the beneficiaries, so that the rejection of it would in effect certainly cause them loss; but not for any other reason. The rule is, in fact, founded on the principle of salvage in the sense of avoiding obvious loss, rather than on expediency; and regarded in that light the cases are perhaps not so conflicting as they appear at first sight. A judge may in one case well hold that he has jurisdiction to sell trust property to a company for shares, where any other mode of sale is impossible or ruinous ; and that he has no jurisdiction to sanction a similar scheme, where the only object of it is to get what is nominally an increased price which may never be realised if the shares fall in value. It must also be understood that these orders are always made with reluctance, and that, in the words of Cozens- Hardy, L.J., " Re New constitutes the high-water mark of the exercise by the court of its extraordinary jurisdiction in relation to trusts " (e). (b) [19031 1 Cli. 848 ; and see {d) See Art. 56, infra. But also tte judgment of the same trustees would be very ras^i o learned jud|e in Be Walker, act without the court . pi otoc maker V. Duncomhe, [1901] 1 Ch. tiom ^^ ^^^^^^^^^^^^ ^^9,3^ ^ ,,, (c) [1903] 1 Ch. 457. 955. 222 The Administration of a Trust. Art. 43. Art. 43. — Dutii of Trustee to act impartiaUii hetween the Beneficiaries. (1) A trustee must be impartial in the execution of his trust, and not exercise his powers so as to confer an advantage on one beneficiary at the expense of another. (2) Where the capital of the trust property is in any way augmented, the augmentation accrues for the benefit of all the beneficiaries ; and is accordingly to be treated as capital, and not as income (/). (8) But a trustee may, unless forbidden by the settlement, pay over a share to a beneficiary to whom it is presently payable, or appropriate a share to a beneficiary to whom it is not presently payable, with- out liabihty for any subsequent inequality which may occur by reason of the depreciation of the investments of one share, or the appreciation of the investments of another. Parageaph(I). Where trustees are empowered to sell real estate and to lay out the proceeds in the purchase of another estate, they would not be justified in selling to promote the exclusive interest of the tenant for life. The}^ must look to the intention of the settlement, and whether another and better purchase is practicable, and not merely probable ; or at all events there must be some strong reasons of family prudence (g). Conversely, if lands be devised to trustees upon trust to sell so much as may be required for payment of debts, and subject thereto upon trust for divers persons successively witliout impeachment of waste, the trustees must not raise the money by sale of the timber, for that would be a hardship on the tenant for life (//)• Where money is directed to be laid out in the purchase of land to be settled on a person for life, the trustees should not purchase an estate with an overwhelming proportion of trees on it. For if the tenant for life be impeachable for waste, he would lose the fruit of so much as was the value of the timber ; Powers of siile and purchase. Trust to raise debts by sale of land. Trustees should not purchase woodland estate or mining pro perty or advowson. (/) Re Barton's Trust (1868), L. R. 5 Eq. 238 ; Re Bouch, Sproiile V. Bouch (1887), 12 App. Cas. 385. ig) MortlocTc v. Buller (1804), 10 Vcs. at p. 309 ; Malion v. StanhoiJe (1809), cited Sug. Pow. (8th ed.) 863. (h) Davies v. Wescomh (1828), 2 Sim. 425. Duty of Trustee to Act Impartially, etc. '2'2:i and if he be not impeachable, he could, by felling the timber, Art. 43. possess himself of a great part of the corpus of the trust pro- perty(i). Similar observations apply to the purchase of mining property, or an advowson, both of which might give an undue preference to one beneficiary. Again, where trustees have a choice of investments, they Choice of must not exercise that choice for the sole benefit of the tenant '"^<^8^™eni9. for life, by investing upon a highly productive but insecure property (/t). And where any change of investment is to be made with the consent of the tenant for life, and he impropcihi withholds his consent, the court will compel him to give it(0- On the principle enunciated in the article now under considera- Trustee must tion, trustees must not threaten to exert their influence with third ,"|^l}u'^JJ,*'^!"e parties to the prejudice of one of their beneficiaries, in order to a-,'aiiist the coerce him into consenting to a disposition of the trust property l^e'JiJ^ikiaryr more favourable to another of the beneficiaries than would be the case if the settlement were strictly performed {iii). Paragraph (2). Where a company, out of a reserve fund, creates new capital, Augmenta- and allots it gratis among the old shareholders, any shares so ^'"". '^\ . ' .' capital. allotted to trustees will be held by them as capital, and will not belong to the person entitled to the trust income {it). So where bonuses are paid as iKirt of capital, they will be Bonuses, retained by the trustee ; but where bonuses are mere expres- sions foi" extra dividends, this will not be the case. As Fry, L.J., said in lie Bouch, Spixnde v. Boiult (o), in a passage quoted with approval by Lord Herschell in giving judgment on the same case in the House of Lords (_/>), " When a testator or settlor directs or permits the subject of his disposition to remain as shares or stocks in a company which has the power either of distributing its profits as dividend or of converting them into capital, and the company validly exercises this power, such exercise of its power is binding on all persons interested in the shares under the testator or settlor ; and consequently what is paid by the coinpaii}' as dividend goes to {i) Surges y. Lamb (1809), 16 (1887), 12 App. Cas. 385; Re Ves. 174. JS'orthage, Ellis V. Bar/ield {IS91), {k) Baby v. Eidehalgh (1855), 60 L. J. Ch. 488. 7 De G. M. & G. 104; and (o) (1885) 29 Ch. D. 635, at Stuart V. StuaH (1841), 3 Beav. p. 653. 430. (2>) (1887) 12 App. Cas. 385, at (I) Costello V. O'Borke (1869), p. 397. See also Fe ^rnhlm, 3 Ir. R. Eq. 172. Malam v. llitcliens, [1894] 3 C\\. (m) Ellis V. Barker (1871), 578; Be Piercy, WhUwham v. L. R. 7 Ch. 104. Pierctj, [1907] 1 Ch. 289. {n) Be Bouch, Siiroule v. Bouch 224 The Administration of a Teust. Art. 43. I'l'iifit on realisation of investments Stocks pur- chased by trustees "cM«i dice." the tenant for life, and what is paid by the company to the share- holder as capital, or appropriated as an increase of the capital stock in the concern, enures to the benefit of all who are interested in the capital " {q). The bonus of a quarter per cent, which was offered to the holders of consols and reduced threes as an induce- ment to convert their holdings into new 2| per cents., was, by the National Debt (Conversion) Act, 1888 (51 & 52 Yict. c. 2), s. 10, specially declared to be income and not capital. On the other hand, the compensation payable under the Licensing Act, 1904(4 Edw. VII., c. 23), ss. 2 and 3, on the extinguishment of the licence of a settled public-house, is capital (?•)• It need scarcely be pointed out that where, on a change of investment, trust securities realise more than was given for them originally, the profit accrues to capital, and is not con- sidered as income payable to the tenant for life. In the same way, where trustees of a mortgage debt foreclose, and subse- quently sell the property for more than the debt and arrears of interest and costs, the balance is to be held by them as an augmentation to the capital of the trust fund. For as any diminution of the trust property would have to be borne by all the beneficiaries, and would not fall on the tenant for life only, so it is only fair that any casual augmentation should belong to all, and not merely to the life tenant. When trustees invest capital in the purchase of stocks or shares, on which, at the date of purchase, dividends have been earned and declared, but not paid, such dividends must be carried to capital and not paid as income (s) . The fairness of this is obvious. But it is also settled (with less obvious fair- ness) that, in the absence of special circumstances, no appor- tionment of income will be made where stocks are purchased iq) See also Be Alsbury, Sugden v. Alsbury (1890), 45 Ch. D. 237 ; and Be NoHhage, Ellis V. Bar field (1891), 60 L. J. Ch. 488, in botli of which bonuses were treated as income ; and Be Despard, Hancock v. Despard (1901), 17 T. L. K. 478, where a special dividend was held to be income, although the directors proposed to appropriate it to paying up unpaid shares unless shareholders required it in cash ; whereas in Be Bouch, Sproule v. Bouch (1885), 29 Ch. D. 635 (1887), 12 App. Cas. 385, they were treated as cor])us ; and cf. Be Hopkins's Trusts (1874), L. K. 18 Eq. 696; Strakerv. Wilson{l811), L. R. 6 Ch. 503 ; Ibbotson v. Elam (1865), L. R. 1 Eq. 188 ; Browne V. Collins (1871), L. R. 12 Eq. 586 ; Blythe's Trustees v. Milne (1905), 7 F. (Ct. of Sess.) 799; and Be Hume-Nisbefs Settlement (1911), 27 T. L. R. 461. Astothe principles on which profits ought to be ascertained by companies, see Lubbock v. British Bank of South America, [1892] 2 Ch. 198. (r) Be Bladon, Dando v. Borter, [1911] 2 Ch. 350, affirmed [1912] 1 Ch. 45. (*■) Be Sir Bobert BeeVs Settled Estates, [1910] 1 Ch. 389. Duty of Trustee to Act Impartially, etc. *i'25 between two dividend days (/). This appears to be founded Ait. 43. merely on convenience, for Kindersley, V.-C, in Scholrjlrld v. Redfeni («), while admitting that inuch might be said in favour of apportionment in such cases, said : " When we consider a little further, it is obvious, that if the tenant for life is to have something out of the sale money, as representing income, then when the trustees invest the money, unless they invest it on the very day on which the dividend has just accrued due, the same equity ought to be administered the other way, and we ouglit to take from the tenant for hfe something of his next dividend and add that to the capital, in order to make things equal as between him and the remainderman. It is clear that if there is an equity one way, there is an equity the other way. It is obvious that the reason why such equity on either side has never been administered habitually by this court is, that by attempting it, a grievous burthen would be imposed upon the estates of testators, by reason of the complex investigations which it would lead to." But in special circumstances the court will make sucii an apportionment. For instance, where stocks are directed to be transferred in specie to a class on the death of a life tenant, but for convenience of division they are sold and the proceeds divided, then, as his personal representatives would, under the Apportionment Act, have been entitled to an apportionment of the income up to his death if the trust had been strictly carried out, the court will direct that a similar apportionment shall be made in respect of the proceeds of the sale (r), A testator gave his estate upon the usual trusts for conver- Profit on re- sion, with power to postpone, and directed that, pending construction conversion, the income actually produced should be treated as income. Part of the residue consisted of shares in a company with iG8 per share paid up. The company was reconstructed, and the new company paid £9 5.s'. for each of the old shares. The £1 5s. was the proceeds partly of the regular reserve fund, and partly of profits which the directors had retained to meet contingencies :—iT.r/., leaseholds or freeholds) as part of the share of one beneficiary, icith liis consent, on the ground that they can sell it to him and set off the purchase-money against his share (e). There can be no appropriation, however, to answer a con- tingent pecuniary legacy when the legatee is not entitled to the intermediate income ; for the legatee is entitled, if and when the contingency happens, to the exact sum, neither more nor less. In such cases, therefore, executors must take care to set aside funds with an ample margin for depreciation ; otherwise, they may find themselves personally responsible (/). On the other hand, if by the will some of the income arising from the legacy is to go to the legatee before the con- tingency on icltich it becomes payable happens, then the inference is said to be that the testator intended that a fund should be segregated and invested to answer the legacy (./). Art. 44. — Duty of Trustee to sell Wasting and Reversion ary Property . Where residuary personal estate is settled by will for the benefit of persons in succession, all such parts of it as are of a v/asting or future or reversionary nature, or consist of unauthorised securities, must be con- verted into property of a permanent and income-bearing character, unless : (a) the will contains a direction or implication to the contrary ; or (b) the will confers on the trustee a discretion to (d) Be Nickels, Nickels v. (e) Be Beverley, Watson v. Nickels, [1898] 1 Ch. 630 ; and Watson, [1901] 1 Ch. 681. see Be BrooJcs, Coles v. Davis (/) Be Hall, Foster v. Metcalfe, (1897), 76 L. T. 771. [1903] 2 Ch. 226. Duty of Trustee to Sell Wasting, etc., Property. 220 postpone such conversion, which he bond Ji.lr Art. 44. and impartially exercises. The above rule, known as the rule in Ilairr v. Lord Uuie in i/owe Dartmouth (u), is really a corollary of the principle stated X/"',"'' ,# m Art. 4d, viz., that the trustee must act nnpartiiilly between the beneficiaries. For if wasting property (such as leaseholds, terminable annuities, and the like) were to be retained, the tenant for life would profit at the expense of the remaindermen ; and if reversionary property were not converted, the remaindermen would profit at the expense of the tenant for life. It must, however, be borne in mind that the rule is based upon an implied or presumed intention of the testator, and not upon any intention actually expressed by him. Courts of equity have consequently always declined to apply the rule in cases where the settlor has indicated an intention that the property should be enjoyed in specie, though he may not, in a technical sense, have specifically said so. The real question, therefore, in all such cases, is whether the settlor has, with sufficient distinctness, indicated his inten- tion that the property should be enjoyed in specie (/() ; for the burden of showing this lies upon the party who desires that the rule in Howe v. Lord Dartmouth should not be applied (/). The rule is confined to residuary personal estate settled by Not will(/i), with regard to which a testator cannot be presumed se7t{|.n'|e','i^*** to foresee its nature. Settlements of existing property by inter cicos. deed are necessarily specific, and therefore excluded from the rule. It has, however, been suggested that the rule may apply to covenants to settle after-acquired property (/), but this was negatived by Cozens-Hardy, J,, in a recent case (//(). on the ground that such covenants are contracts between the parties, and not wills, and must be performed in strict accord- ance with their terms ; so that, unless the covenant contains a direction to convert such after-acquired property and invest the proceeds, the inference is that the parties meant it to be enjoyed in specie (;»). Although the mere absence of a direction to convert wasting Not applicable to ig) (1802) 7 Ves. 137, 1 Wli. & (A) Be Van Straubemee, Bou- ''^i',^'"''' Tu. Lead. Cas. (8tli ed.) 68 ; and stead v. Cooper, [1901] 2 Ch. 779. g.,eciHcallv. seeBX&oninvesv.Hinves{18U),3 (l) Yaizey on .Scttleinonts, p. Hare, 609 ; and Pickering v. Pick- 421. ering (1839), 4 Myl. & Cr. 289. (m) Be Van Straubemee, (h) Per Baggallay, L.J., Bousiead v. Cooper, supra. See Macclonald v. Irvine (1878), 8 also Milford v. Peilc (18.34), 2 Ch. D. at p. 112. W. R. 181 ; Hope v. Hope (ISoo), {i) Per James, L. J., same case. 1 Jur. (n. s.) 770. 230 The Administration of a Trust. Art. 44. Corollary where specific trust property purchased under compulsory powers. Illustrations of the peueral rule. Intermediate income of sum set aside. Leaseholds. property has never been construed to mean that it should be enjoyed in specie, yet, where such property is given specificalb/ in the strict sense of the term, i.r., where it is expressly referred to, the rule has no application. For in such cases, in the absence of express direction, the presumption is that the testator, by naming the specific property, intended that it should be enjoyed in the shape in which he left it. If, therefore, a testator bequeaths specific leaseholds in trust for 13ersons successively, it will not be the duty of the trustees to sell them and invest the proceeds on permanent investments ; but they must pay the entire rents to the first taker, notwith- standing that, by reason of the terminable nature of the property, the ultimate remainderman may be disappointed (»). This distinction between specific trust bequests and residuary trust bequests is observed even where the specific bequest and the residuary bequest are given to the same person for life(o). As a corollary to the rule that the tenant for life is entitled to the whole of the income of specifically settled leaseholds, it has been held that where they are compulsorily purchased by a railway company ( p), or are sold by the court in an adminis- tration action (q), the tenant for life is entitled to receive out of principal and interest of the proceeds an annuity of such an amount that the payment of it would exhaust the fund in the number of years which the leaseholds had to run. "Where a testator's residuary estate was settled uj)on one for life, with remainders over, it was held that long, but termin- able, annuities, which formed part of it, ought to be sold, and the proceeds invested on permanent trust securities (r). On similar grounds, where part of the estate consists of the intermediate income of a fund set apart to answer a future liability, the intermediate income must be treated as capital (.s). A testator gave to his wife the whole of the interest arising from his property, both real and personal, during her life, with remainders over. He died i^ossessed of leaseholds, among in) Be Beaufoy's Estate (1852), 1 Sm. & Giff. 20 ; and see Stanier v. HodgJdnson (1903), 73 L. J. Ch. 179. (o) Macdonald v. Irvine (1878), 8 Cli. 1). 101 (Baggallay, L.J., diss.). (j)) Askew V. Woodhead (1880) 14 Ch. D. 27. {q) Re Lingard, Lingard v. Squirrell, [1908] W. N. 107. (r) Tickner v. Old (1874), L. R. 18 Eq. 422 ; Porter v. Baddeley (1877), 5 Ch. D. 542; but see contra, Wilday v. Sandys (1869), L. R. 7 Eq. 455, where, on the construction ot the will, it was held that the trustees were authorised to liold long annuities. (.v) Be Whitelicdd, Peacock v. Lucas, [1894J 1 Ch. 678. Duty of Trustee to Sell Wasting, etc., Property. 'I'M other property. It was held that the widow was not enliiled Ai-t. 44. to retain the leaseholds, but that they must be sold and the proceeds invested in stock (0- The rule is equally applicable to a testator's investments Kiih; applien which are not authorised to be retained either by the will or au/jjor";^! by statute. Such investments being regarded as speculative, securities, and therefore possibly wasting, ought to be converted as soon as possible. So where trustees are obliged to foreclose a mortgage, or, Forcclosci under the Statutes of Limitation or otherwise, the right of "^'""^e^se-"- redemption is barred, they hold the property not as real estate but formerly on an implied trust (and now under a statutory obligation (ii) ), to sell the property promptly if they can get a fair price for it ; unless, of course, they are authorised to invest in the purchase of land. "Where, however, a serious loss would result from an immediate sale, the court will authorise the retention of the land for a limited period (x). Sub-Parageaphs (a), (b). As already stated, the rule in Hoirc v. Lord Dartmouth is Rule in Ifonfi subject to any contrary intention which may be expressed or I'J^fT unt""' implied in the settlement. Moreover, it is immaterial whether .•xpi)iicabie the contrary intention is imperatively expressed, or whether a )!,„',7,!ary discretion to convert or not is expressly given to the trustees ; '"^'^"^'o^ for the court will not interfere with a discretion so long as ^-'"'""'^'^ trustees exercise it in good faith (^). Thus, in one case, a testator gave his residuary estate, which included several leasehold houses (held upon short terms), to trustees, upon trust to pay the income to his wife for hfe, with remainder to his grandchildren, and gave his trustees j^ower to retain auij portion of liia yropertii in the same state in uMch it should be at his decease, or to sell and convert the same as they should think fit. It was held that the special power to retain existing investments took the case out of the general rule as to con- version of perishable property, and that the trustees were at liberty to retain the short leaseholds, and any other invest- ments held by the testator, for such period as they should think lit (z). A similar decision was arrived at where a it) Benn v. Dixon (1840),. 10 (a) Per Keic^wicii J., J?o Sim. 636. Tlie same coiiclusiou lollemuche, [1903 J 1 ^ li. 4o/, was arrived at, where " the rents 461. Td profits of my residuary real (y) Gisborne v. J^^^^r"' and personal estate " were be- (1877), 2 ApP- ^ a^ -^ ^/^ ; 2' Jor queathed to the wife. BeGame, v. Brools (18/8) 10 <;!•/?•-' -i- Game v. Young, [1897] 1 Ch. 881 {^)Gmy v. bujgas (1680), 1. (w) Conveyancing Act, 1911 ^h. u. a. (1 & 2 Geo. V, c. 37), s. 9 232 The Administration of a Trust. Art. 44. Discretion given to trustees as to time of sale. Rule not applicable where impliedly netratived. testator authorised his trustees to postiione the sale of his business (a). So, again, where the testator devised wasting property to trustees, upon trust to sell " when in their discretion they should deem it advisable," it was held that the trustees were not bound to sell until they thought fit {b). The above cases are instances of an express intention that the trustees should have a discretion ; but the same result will follow where that intention can be implied. Thus, a testator, after a specific bequest, gave all his residuary estate, both real and personal, to trustees, upon trust, to sell so much and siicJi 2)art tltcrcof as they might tinnk necessary for paying all Ids mortgage and other debts and funeral and testamentary expenses, and to invest the balance of the proceeds, and to stand possessed of such investments, rt»fZ all other his residuary estate, upon trust for several persons successively for their respective lives, with remainders over. Part of the testator's estate con- sisted of leaseholds, which were retained unsold. On this state of facts it was held that, on the construction of the will, the trustees had a discretion as to what part of the testator's estate should be converted, and that the court could not interfere with such discretion (c). So it has been held that an express direction for sale at a particular period, indicates an intention that there should be no previous sale {d) ; and even a power to sell all or any part of the estate in the absolute discretion of the trustees, has been held to negative the prima facie duty of selling wasting or reversionary property forthwith {e). A similar view has been taken of a direction to divide property after the death of the life tenant (/). So, in some cases, it has been decided that a trust to pay rents to the tenant for life, wJiere the testator has only leaseholds (g) ; or a direction that the trustees should give a power of attorney to the life tenant to receive the (a) Be Crowther, Midgley \. Crowther, [1895] 2 Ch. 56 ; but see Be Smith, Arnold v. Smith, [1896] 1 Ch. 171. (6) 3Iiller v. Miller (1872), L. R. 13 Eq. 263 ; Thursby v. Thursby (1875), L. R. 19 Eq. 395 ; and see also Be Chancellor, Chancellor v. Brown (1884), 26 Ch. D. 42 ; and Be Crowther, Midgley v. Crowther, supra, in botli ot wliich cases the property consisted of a business. (r) Be SewelVs Estafe (1870), L. R. 11 Eq. 80; and see also Simpson v. Earles (1847), 11 Jur. 921. (d) Alcoch V. Sloper (1833), 2 Myl. & K. 699 ; Daniel v. Warren (1843), 2 Y. & CoU. C. C. 290. (e) Be Pitcairn, Brandreth v. Colvin, [1896] 2 Ch. 199. (/) Collins V. Collins (1833), 2 Myl. & K. 703. (g) Goodenough v. Trema- mondo (1840). 2 Bear. 512 ; Cafe V. Bent (1845), 5 Hare, 24; Vachell v. Boberts (1863), 32 Beav. 140. Duty of Trustee to Sell Wasting, etc., Property. 288 income (//), is a sufficient indication of a conlrary inleiilion Ait. 44. to take the case out of the general rule. A testator gave his residuarj- estate to trustees in trust to convert into money such parts thereof as should not consist of money, oi- he invested in any of the public funds or (jovcrnmcnt seciiritics,a.nd to pay the interest, dividends, and annual proceeds of such residue to his children in equal shares for their lives, and after their deaths to hold the property upon other trusts. On the construction of these words it was held that long annuities, of which the testator died possessed, fell within the exception of " public funds or government securities," and ought not to be converted (i). On the other hand, in Tickner v. Old (/r), where the direction was to convert the residue and invest in povciii- ment or real securities, with power to continue invested any [I or eminent stocks or real securities of which the testator might die possessed, it was held that government securities meant only such as were of a permanent character, and that long annuities ought to be converted. It will be i)erceived that it is not easy to distinguish these two cases, which convey a warning to the practitioner how extremely dangerous it is to advise trustees to act upon implied intentions, either one way or the other, without taking the opinion of the court on originating summons. Art. 45. — Duty of Trustee as between Tenant for Life and Bemaiuderman in Bclation to Property pendinr] Conversion. (1) Where property ought to be converted, and the proceeds invested, the tenant for life is entitled, pendhig conversion, to the whole income of income-bearing property, if the settlement so directs or implies (/). (2) In the absence of any such direction or implica- (h) NevilUY.FoHescite (1848), Sheldon (1888), 39 Ch. D. 50; 16 Sim 333 -R« Thomas, }\ ood v. Thomas, (i) Wilday T. Sandys (1869), [1891] 3 Ch. 482. ^Vhere the L R 7 Eq 455 property is of a non -wasting "(A) (1874) L. E. 18 Eq. 422; nature, the court will accept very and see also Porter x. Baddeley sUght evidence of iniphed mteu- (1877), 5 Ch. D. 542. tion. (?) See Be Sheldon, Xixon v. 234 The Administration of a Trust. Art. 45. tion, he is entitled to receive or be credited with income ■~~ in accordance with the following rules, viz. : (a) He is entitled to the whole of the ordinary rents of real estate {ni), but not to royalties for minerals (»). C (b) Where the property is of a wasting nature (and s('))i])U', even where, being personal estate, it is not), he is only entitled to a fair equivalent for the income which he would have received if the property had been sold and invested in trustee securities (o). (c) Where the property is of a reversionary nature, he is entitled, when it falls in, to a propor- tionate part of the capital, representing 3 (j)) per cent, compound interest (with yearly rests) on the true actuarial value of the property at the testator's death ; calculated on the assumption that the actual date when the property fell into possession could have been then predicted with certainty {q). (d) Upon complete realisation of an insufficient security, where interest is in arrear, the money realised must be divided between tenant for life and remainderman in proportion to the amount due for arrears of interest and the amount of capital remaining due(/-) ; unless the security (m) Hope V. D'Hedouville, 723 ; Wentworth v. Wentworth, 4 [1893] 2 Ch. 361 ; Ee 8earle, supra. Searle v. Baker, [1900] 2 Ch. (p) See Ee Goodenough, Mar- 829 ; Re Oliver, Wilson v. Oliver, land v. Williams, [1895] 2 Ch. [1908] 2 Ch. 74 ; Be Earl of 537 ; Be Morley, Morley v. Darnley, Clifton v. Darnley, Haig, [1895] 2 Ch. 738 ; Be [1907] 1 Ch. 159. , Hobson, Walker Y. Appaclc {1885) (n) Wentworth v. Wentworth, 53 L. T. 627 ; and Be Duke of [1900] A. C. 163. The rate of Cleveland, Hay v. Wolmer, [18Q5] interest allowed was formerly 2 Ch. 542 ; Bowlls v. Bebb, [1900] 4 per cent., but of late years it 2 Ch. 107. has been dropped to 3 per cent. {q) Be Earl of Chesterfield's on the ground that that rate is Trusts (1883), 24 Ch. D. 643; roughly the rate produced by followed, with variations as to trust securities. But it is liable rate of interest,in Be Goodenough, to increase again if the ordinary Marland v. Williams, supra ; Be rate of interest on good securities Morley, Morley v. Uaig, supra ; should once more rise. Be Ilobson, Walker v. Appack, (o) Brown v. GellaUy n867), supra; i\nd Be Duke of Cleveland, L. II. 2 (Jh. 751 ; Meyer v. Hay v. Wolmer, supra. Bimonsen (1852), 5 De G. & Sm. (r) Be Atkinson, Barbers' Co. Sale Delayed (Tenant for Life, etc.). 235 is of such a nature that interest is only pax - Art. 45. able if earned (.->■). ^ ^ — (3) This article has no application to investments made by trustees in breach of trust where no loss results; but is confined to cases where unavoidable delay takes place in converting property in due course of administration [t), and to cases where a security (whether authorised or not) has turned out to l)e insufficient. This article is a further corollary of Art. i^, and its main Not confined principle forms the second part of the rule in Howe v. Lord ^" 'f ^'^'' -r\ A 7 • J.1 j^ T residue. DartmoHth, viz., that, pendnig a conversion which ouf^ht to be made, the tenant for hfe is, priiiid fade , entitled to the income which would be produced by the proceeds of the conversion, if it were made, and nothing more. It is not, however (hke the main rule), confined to settled residuary personal estate under a will, but is equally applicable to all settled property which is subject to a direction for sale exercisable forthwith, even although there is an e.xi)res8 power to postpone it. But it does not apply where the sale is only to take place at a future date ; for in that case the intention must have been that until that date arrived the tenant for life should enjoy the property in specie. Where the rule applies at all, the first question that arises A (jucstion is one of fact, viz., Avhether on the true interpretation of the °ioJ"ofThr"' trust instrument the tenant for life is either expressly or trust instru- impliedly intended to take the actual income pending the sale. ™ " ' If that question is answered in the affirmative, Cadit qiuestio. But if no such intention is expressed or is reason- ably to be inferred, then the question becomes one of law, to be answered in accordance with the rules in paragraph (2). Paragraph (1), The rules in paragraph (2) have no application where only Hulcs have no a future sale is directed. In llr North, Gartou v. CumJx-r- SreV" land(n), a testator, part of whose property consisted of land future sale V. Orose-Smitli, [1904] 2 Ch. 160, 1 Ch. 565, at p. 566 ; and Stroud overruling Be Foster, Lloyd v. v. Gwyer (1860), 28 Beav. KJO ; Carr (1890), 45 Ch. D. 629, and bnt cf. lie lliU, Hill v. Hill Be Phillimore, Phillimore v. (1881), 50 L. J. Cli. 551 ; Slade Herbert, [190B] 1 Ch. 94:2. v. (Jhadne, [1908] 1 Ch. 522; {s) fiee Be Taylor's Trusts, 31 athe- Be Hoyles, Bow v. Jagg (No. 2) son V. Taylor, [1905] 1 Ch. 734. [1912] 1 Cli. 67. [t) See per Bykne, J., Be {u) [1909J 1 Ch. 625. Ai^pleby, Walker v. Lever, [1903] is directe) (l.sr)2) f) Dc, (;. \. Sin. 72:5. (/) (ISII) 1 llaiv, Kii. {). But the princij^les on which such division ought to be made have only just been firmly settled by the Court of Appeal. In Re Foster, Lloyd v. Carr (c), Kay, J., held that the security is to be regarded as a security for the amount actually realised plus the interest actually received by the tenant for life (apparently from the beginning) ; and that the sum so ascertained should be divided between tenant for life and remainderman in the proportion which the interest which the tenant for life ought to have received bears to the capital sum which was secured by the security ; the tenant for life giving credit for all income actually received by him. This principle was, however, dissented from by North, J., in Lyon v. Mitehell{d), and more recently was not followed by Kekewich, J., in Re Alston, Alston v. Houston (e), where his lordship divided the sum realised between tenant for life and remainderman in proi^ortion to the amounts due to each at the date of realisation, without regarding on either side of the account the interest actually received in the past by the tenant for life, except so far as it reduced the arrears. The same principle had been previously followed in Re Moore, Moore V. Johnson {/), by Pearson, J. In the more recent case of Re P]nUi))iore, PldlUmore v. (fl) He Lewis, Davies v. Uarri- son, [1907] 2 Ch. 296. {b) Be Iliibbuck, Hart v. Stone, [1896] 1 Ch. 754 ; and Be Lewis, Davies v. Uarrison, [1907] 2 Ch. 296. (c) (1890) 4.5 Ch. D. 629; and Kee Br Ancleiill, Ex parte Scottish Provident Institution (1891), 27 L. R. Ir. 331 ; Delves v. Newing- ton (1885), 52 L. T. 512 ; and Be Oodden, Teague v. Fox, [1893] 1 Ch. 292. (d) [1899] W. N. 27. (e) [1901] 2 Ch. 684. (/) (1885) 54 L. J. Ch. 432; and see Be Barker, Barker v. Barker, [1897] W. N. 164; and Stewaiiv. Kingsale, [1902] 1 Ir. E. 496. Sale Delayed (Tenant for Life, etc.). 245 Herbert (e/), however, Bwinfen Eady, J., adopted a third course, Art. 45. and divided the amount realised between tenant for life and remainderman, making the tenant for life bring into hotch- pot all that he had received by way of income since iJie dah' icltoi the security first became insufficient. The defect of the rule, as stated by his lordship, and still more as stated by Kay, J., is that if the principle were carried out logically, a tenant for life who had rightfully received income might be called upon to refund it — a thing unheard of. However the point was fully threshed out before the Court of Appeal in the case of Re Atkinson, Barbers' Co. v. Grose- Smith (li), in which He Alston, Alston v. Houston, and lie Moore, Moore v. Johnson, were followed, and Re Foster, Lloyd v. Carr, and Re Phillimore, Phillimore v. Herbert, overruled. The rule only applies where the insufficient security has been iiule only realised. Until then, the tenant for life is entitled to keep all f.Scu'n'r'' the interest actually paid, or which is in hand ready to be security is paid(/-). Thus, where the trustees are mortgagees in possession to that of property, and interest was in arrear at their testator's teiiantfor . lifo entitled death, it was held that they must first apply each instalment of to whole rent in satisfaction of the arrears of interest due to the testator, of inconu; and then distribute the balance as income up to but not received, exceeding the interest accrued since the testator's death on the mortgage, and apply any excess as capital (A) . Paragraph (3). The rule as to the tenant for life being only entitled to How far rule three per cent, on investments made by the settlor which J5J!Ju5'','^o,^i^e,i ought to be converted, does not apply to investments made by investments the trustee in breach of trust. Under these circumstances, if no ["IJgj^^,^.^ loss of capital is sustained, the remainderman is not entitled to have the capital increased by adding to it the difference between the income actually paid to the tenant for life and three per cent. (0- For in such cases (herein differing from speculative or wasting property settled by the settlement) the amount of the trust fund is definitely ascertained ; and if it has not in fact been depreciated by the breach of trust, the remainderman has no equity to have it appreciated at the expense of the life {g) [1903] 1 Ch. 942; and see [1911] 1 Cli. 171. also Cox V. Cox (1869), L. R. 8 [l) PerBYR^y.,J.,FeAppMuf, Eq. 343 ; and Turner v. Neivpori WaUer v. Lever, [1903] 1 ('h. ^)G.^, (1846), 2 Ph. 14. at p. 566; Strondv. Gwj/er (ISiH^), (h) [1904] 2 Ch. 160. 28 Beav. 130; but cf. Re Hill, (i) Be Broadwood's Setilement, Hill v. Hill (1881). oO L. .1. <"li. Broadwood v. Broadwood, [1908] 551, wliich was distinguished m 1 Ch. 115. Slade v. Chaine, [1908] 1 Ch. (k) Be Coalcs, Cooks v. Bayley, 522. 246 The Administration of a Trust. Art. 45. tenant. And in a recent decision Swinpen Eady, J., has held that the principle holds good where no loss has been sustained, even although the tenant for life was also one of the trustees {m). But where, by reason of a breach of trust, the capital has become depreciated, then when it is realised, although the tenant for life, who was no party to the breach, cannot be ordered to refund income, yet he will not get any part of the amount realised to make up arrears (if any), without bringing into hotchpot all the income he has received from the security during its entire continuance. For that is the only way of approximately placing the beneficiaries in the positions in which they would have been if no breach had been committed (??). Art. 46. — Diitij of Trustee in Belation to the Payment of Oitt(join(i>i out of Corpus and Income requ'ctivelji. Snl)ject to the directions of the settlement, and of particular statutes, the following rules govern the incidence of outgoings : — (a) The corpus bears capital charges, and the income bears the interest on them (o). If the current income is insufficient, arrears must be paid out of subsequent income (jj). (b) The income usually bears current expenses (q), including the entire cost of keeping lease- holds in repair (r). (c) Where repairs to trust freeholds or cop3'holds are necessary to save them from destruction (.s), or fines 1:)ecome payable for the renewal of (m) Be Uoyles, Bow v. Jagg [1896] 2 Ch. 511. (No. 2), [1912] 1 Ch. 67. (q) Fountaine v. Pellet (1191), (n) Be Bird, Dodd v. Evans, 1 Ves. Jim. 337, 342, rates and [1901] 1 Ch. 916 ; and comments taxes ; Shore v. Shore (1859), 4 thereon of Warrmgton, K.C., Drew. 501, receiver's commission arguendo in Be Alston, Alston v. and expenses of passing accounts. Houston, [1901] 2 Ch. at p. 587. (r) See Be Gjers, Cooper v. (o) Marshall v. Crowther Gjers, [1899] 2 Ch. 54 ; and Be (1874), 2 Ch. D. 199; Whitbread Betty, Betty v. Att.-Gen., [1899] V. .Smit/i (1854), 3 De G. M. &G. 1 Ch. 821. ' 727 ; and see and consider (s) Be Courtier, Coles v. Noi-ton V. Johnstone (1885), 30 Courtier (1886), 34 Ch. D. 136; Ch. D. 649. f^er Cotton and Lindley, L.JJ., (p) Honywood v. Honywood, Be Hotchkys, Frelce v. Cahnady [1902] 1 Ch. 347 ; Frewen v. (1886), 32 Ch. D. 408. Law Life Assurance Society, Duty of Trustee in Relation to OrTooixas, etc. 1 1 leases (t), or for putting in repair leasehold Art. 46. property which was out of repair at the date of ~ the creation of the trust (//), the court may empower the trustees to raise the necessary amount in such a way as will l)e equital)le between income and corpus, (d) All costs incident to the administration and [)i-o- tection of the trust property, including legal proceedings, are borne by corpus (x), unless they relate exclusively to the tenant for life (//). Sub-Pakagraph (a). Where a capital sum is secured on property, it is payable Chari.'e.s out of corpus ; but the interest on it is payable out of ^^^ ineum- mcome(^) arising not only from the incumbered property, but from all other property comprised in the same trust (a). If the current income is insufficient to keep down the interest, the arrears are payable out of subsecpient income (a), and tliis is so, even where the charge in respect of w'hich the arrears have arisen has been paid off by means of a sale of part of the projDerty (a). The rule as to capital charges being borne by corpus pre- vails even where a debt is secured by, or is payable as, an annuity or by instalments. In such a case the tenant for life will have to contribute an amount equal to interest on the capital value {h). (t) White V. White (1804), 9 (1866), L. E. 3 Eq. 432; Fe Ves. 554 ; Nightingale V. Lawson Evans's Trusts (1872), L. R. 7 (1785), 1 Bro. C. C. 440. The Ch. 609 ; Be Smith's Trusts law as between tenant for life (1870), L. R. 9 Eq. 374. and remainderman in respect to (z) Marshall v. Croulher renewal of leases is not altered (1874), 2 Ch. D. 199; Whitbread by s. 19 of the Trustee Act, 1893 v. Smith (1854), 3 I)e G. M. & G. (Be Baring, Jeune v. Baring, 727 ; and see Allhusen v. Whittell [1893] 1 Ch. 61). (1867), L. R. 4 Eq. 295. {u) Be Copland's Settlement. (a) Honywood v. Tlonywood, Johns V. Garden, [1900] 1 Ch. [1902] 1 Ch. 347 ; Frewen v. 326 Law Life Assurance Socicti/. {x) Lord Brougham v. Lord [1896] 2 Ch. 511 ; Be notchkifs. PowZe«(1855),19Beav. atp. 135; Freke v. Calmady (1886). 32 Sanders v. Miller {\S6%), 25 Beav. Ch. D. 408. 154; Be Earl Be la Warr's (b) Buhver v. Astley (1844). 1 Estates (1881), 16 Ch. D. 587; Ph. 422; Flayfair v. Cooper Stott V. 3Iilne {18S4:), 25 Ch. D. (1853), 17 Beav. 187: Ley v. 710: explained by Be Weall, iei/ (1868), L. R. 6 Lq. 1-4 : Re Andrews v. Weall (1889), 42 Muifett, Jones v. Mason (1888). Ch. D. 674. 39 Ch. D. 534 (purcliase-nionoy iy) See Be Mamer's Trusts consisting of a life annuity). 248 The Administration of a Trust. Art. 46. How the respective liabilities of corpus and income computed. Local govern- ment charges. There has, however, been a curious conflict of judicial authority as to how the respective contributions of capital and income ought to be computed in such cases. In re Bacon, Grissell v. T.eathes (c), and Re Henn/, Gordon v. Henri/ (d), Kekewich, J., laid it down that the proper way was to raise the required amount out of corpus as required, in which way the tenant for life would lose a corresponding amount of income. This view was, however, dissented from by Swinfen Eady, J., in Be Dairson, Arathoon v. Dawson (c), \\heYe his lordship held that the successive instalments of the annuities must be borne by income and capital in proportion to the actuarial values of the life estate and reversion at the testator's death. But in the subsequent case of Be Perli)ts, Brown v. Perkins (/), where it was pointed out that this actuarial method would act unfairly, the same judge directed that each instal- ment of the annuity should be met by calculating what sum with three per cent, simple interest from the commencement of the life tenancy to the day of pajmient would have met the instal- ment ; the sum so ascertained to come out of capital and the balance out of income. This case was subsequently followed by Joyce, J., in Be Tlunnj^son, Thompson v. IVathins (g), and by Paekee, J., in Be Poyser, Landon v. Poyser (It), and is presumably now the recognised rule. Expenses incurred by a local authority in sewering, paving, and flagging a new street, and charged by statute on the adjacent land, are a charge on corpus and not income, even although they, with interest, are repayable to the local authority by instalments (i), and by 55 & 56 Vict. c. 57, s. 17, any person who could sell such lands under the Lands Clauses Consolida- tion Acts may mortgage them for raising the charge. Arrears of interest on incumbrances accrued in the lifetime of the settlor are a charge on corpus, the tenant for life merely paying interest on them (/.). The strong inclination of the court to saddle capital charges on corpus is well exemplified by Norton v. Johnstone (/). There a testator had directed that the income of certain estates should be accumulated until the amount of the (c) (1893) 62 L. J. Ch. 445. (d) [1907] 1 Ch. 30. (e) [1906] 2 Ch. 211. (/) [1907] 2 Ch. 596. {g) [1908] W. N. 195. (h) [1910] 2 Ch. 444. {i) lie Lerjh's Settled Estates, [1902] 2 Cli. 274 ; but cf. 55 & 56 Vict. c. 57, s. 17. (/o) Bevel Y. Watkinson (1748), 1 Ves. Sen. 93 ; Playfair v. Cooi)er (1853), 17 Beav. 187. (l) (1885) 30 Ch. D. 649; and see also Re Harrison, Townson V. Harrison (1889), 43 Ch. D Duty of Trustee in Relation to Outgoings, etc. '2 10 accumulations should be sufficient to pay off existing mort- Art. 46. gages ; and that, subject thereto, the property should be held to the use of the plaintiff for life, with remainders over. SoXed Before the accumulations were sufticient to discharge the mort- '" •**' J"^'*^ gages, the mortgagees sold a part of the property ; and with the unli «iic^by' moneys so produced, and part of the moneys already accumu- "'ortga},'ee. lated, the mortgages were paid off. The tenant for life then claimed to be let into possession, and also to have the balance of the accumulations paid to him. On the other hand, the remainderman urged that, inasmuch as the mortgage debt had been paid off by means of a sale of the corpus (which was not what was contemplated by the testator), the accunuilation of rents ought to continue, until such a sum was obtained as would be equal to the amount raised by the sale ; and that the sum thus obtained ought to be employed in recouping the inheritance, the tenant for life receiving only the interest of it. Pearson, J., however, decided in favour of the tenant for life, on the ground that the mortgage debts had been paid in a way different from that which the testator intended — that he had not provided for that event, and that consequently the ordinary rule as to the incidence of capital charges must govern the case. Where, however, on the expiration of a lease granted by the settlor, the tenant for life is obliged to pay compensation for improvements to the outgoing lessee under a covenant in tlie lease, he has no claim to saddle the compensation on corpus. For, as Jessel, M.E., said, "If he lives long enough he will let the land again, and get the outlay from the incoming tenant, and so if he recovered it now he would be repaid twice over" (m). But this seems to assume that the life tenant is empowered to require (and keep for his own use) a premium from the new lessee. However, this rule does not apply to compensation payable under the Agricultural Holdings Act, 1883 (46 & 47 Vict. c. 61), as the incidence of such compensa- tion is expressly provided for by s. 29 of that Act. Calls on shares which form part of a trust estate are out- Calls on goings attributable to capital and not to income, and are accordingly payable out of corpus (n) . shares. Sub-Paragraph (b). All charges of an annual character, except annual charges crrent to secure capital sums, are payable out of income ; for other- ;X""JI.^. wise the corpus would inevitably decrease year by year, and (m) Mansel v. NoHon (1883), («) Todd v. Moorhouse (ISli), 22 Ch. D. 769. L. R. 19 Eq. 69. 250 The Administration of a Trust. Art. 46. would ultimately be swallo^Yed up. Thus, the income must ■ bear rates and taxes (o) ; the commission of house agents for obtaining tenants {jj) ; the rent pa3'able for, and the expenses incident to the observance and performance of the covenants and conditions in relation to, leasehold hereditaments (q). But a tenant for life is not liable to have his income taken for breaches of covenant not occurring in his time (r). It would seem that even the cost of complying with a sanitary notice under the Public Health (London) Act, 1891 (54 & 55 Vict, c. 76), or a dangerous structure notice under the London Building Act, 1894 (.s), are, as a rule, payable by the tenant for life ; but not, apparently, the cost of a thorough reconstruction of the sewers of a house {t), or other permanent improvements insisted on by the local authority (/O- Li the United States of America it has been held (and it is conceived rightly) that an extraordinary tax in relation to matters which have increased capital value, such as a tax for betterment, or for making up a highway, is chargeable to corpus (a). Of course annuities charged on income (jj), the commission or poundage payable to a receiver, and the expenses incident to the jjreparation and passing of his accounts must be borne by income (z). Insurance So where a life policy forms part of settled residuary premuim>. personal estate, the premiums are (in the absence of express direction) payable out of capital raised from time to time by a charge on the policy (a). In practice such premiums are usually paid in the first instance out of income, and are then repayable to the tenant for life when the policy falls in with interest at four per cent. (h). Of course, where a policy is (o) Fountaine v. Pellet (1791), Co. v. Hartopp, [1904] 2 Ch. 561. 1 Ves. .Tun. 337, 342. (x) Tupper v. Fuller (1855), (p) Re Leveson-Gower's Settled 7 Rich. Eq. 170 ; Varney v. Estate, [1905] 2 Ch. 95. Stevens (1843), 22 Me. 331; iq) Be Gjers, Cooper v. Gjers, Harvard College v. Alderman [1899] 2 Ch. 54 ; Be Betty, Betty (1870), 104 Mass. 470 ; Plympton V. Att.-Gen., [1899] 1 Ch. 821 ; v. Dispensary (1871), 106 Mass. sed cf. Be Tomlinson, Tomlinson 544. The cost of private street V. Andrew, [1898] 1 Ch. 232. works is specially provided for (r) Be Betty, Betty v. Att.-Gen., by 55 & 56 Vict. c. 57, s. 17. supra. {y) Playfair v. Cooper (1853), (s) Be Copland's Settlement, 17 Beav. 187, 193 ; Miller v. Johns V. Garden, [1900] 1 Ch. Huddleston (1851), 3 Mac. & G. 326 ; and Be Lever, Cordwell v. 513. Lever, [1897] 1 Ch. 32. (z) Shore v. Shore (1859), 4 (t) Be Thomas, Weatherall v. Drew. 501. TTiomas, [1900] 1 Ch. 319 ; and (a) Macdorudd v. Irvine{1818), see infra, p. 253 et seq. ; and 8 Ch. D. 101 (C. A.). BeWaugWs Be McClure's Trusts, Carr v. Trusts (1877), 25 W. R. 555, Commercial Union Insurance Co., which is contra, appears to be [1906] W. N. 200. overruled by it. (u) See Be Farnham's Trusts, (b) Be Morley, Morley v. Haig, Law Union and Crown Insurance [1895] 2 Ch. 738, Duty of Trustee in Relation to Outgoings, etc. -Ih] specifically settled, express directions are almost invarial)ly An. 46. given for payment of the premiums, and where they are directed to be paid out of income, and for some reason the policy lapses without breach of trust, the amounts which would have been paid for keeping it up must thenceforth be paid to capital account (c). Where trustees are directed to insure the trust property against loss or damage by lire, the premiums must be borne by income. Up to the end of 1888 it was questionable whether trustees could in the absence of such direction lawfully expend trust moneys in insuring against loss or damage by fire. However, by s. 18 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), re-enacting a corresponding pro- vision in the Act of 1888, trustees are authorised to make such insurances to an amount not exceeding three-fourths of the value of the building or property insured, and to pay the premiums out of income. The section does not apply to simple trusts, nor is it imperative, so that if the trustees differ as to the necessity of insuring against fire, or as to the amount of such insurance, nothing can be done, and they are not responsible for loss if a fire ensues (d). On the same ground, where a rent-charge is redeemed by Money paid the tenant for life, he is only entitled to be recouped, out of til^n'^nf'rent. corpus, the amount paid, less the value of the redemption to fiiarge. his life estate (e). Where a business is vested in trustees in trust for successive Losses tenants for life and remainderman, the net losses on one year's b^g^ngg^^ trading must, mule)' ordinarji circumstances, be made good out of the profits of subsequent years, and not out of capital (/). For the outgoings of a business are part of the regular current expenses, and there can be no profits until all losses are paid, whether such losses are incurred in a year in which gross profits exceed the losses, or were incurred in prior years. The same rule, however, does not seem to apply wheni a business is not carried on under a direction in the settlement, l)ut is merely carried on temporarily until it can be sold proiital)ly. In such cases, the annual loss or profit (if any) ought to be apportioned between capital and income as follows : Calculate the sum which, put out at interest at four (qu. three) per cent, per annum on the day when the business ought to have been sold (if it could have been) and accumulated at compound (c) Be Fitzgerald, Surmnn v. (e) Re Duke of Leinster (ISSd), Fitzgerald (1904), 90 L. T. at 23 L. R. Ir. 152 p. 2'74 (C. A.). (/) l^pion v. Broion (1884), 26 {d) Be IIcEacharn, Gambles v. Cli. D. 588. McEacharn, [1911] W. N. 23. 252 The Administration of a Trust. Art. 46. interest at the like rate, with yearly rests, would, together with such interest and accumulations, after deducting income tax, be equivalent at the end of each year to the amount of the loss or profit sustained or made during that _year. The sum so ascertained will be charged against, or credited to, capital, and the rest of the loss will be charged against, or the rest of the profit will be credited to, income (//). The charges for the compensation fund imposed by the Licensing Act, 1904 (//), are payable out of income and not out of cai^ital. Secu.'i where However, where, on the facts, it appears to have been the intention can gg^tlor's intention that losses on a trust business should be be implied borne by capital, effect will be given to that intention. For that losses bv^can^taI"^'^*^ instance, where partners carry on a business, each partner having the right to bequeath his share, and it lias been tlw imiiuerHldp custoni to write off the losses of unprosperous years from each partner's share of capital, that custom will be continued, even as between a tenant fur life and remain- derman, in whose favour one of the partners has bequeathed his share (0- Sub-ParactKaph (c). Repairs. Well-drawn settlements of house property usually provide that the trustees shall keep it in repair, and insured against loss or damage by fire, out of the rents and profits. Where this is omitted, a Icf/al tenant for life of freeholds is not compellable to keep property in repair (k) ; and as the court has no jurisdiction (where there is no trust) to make any order charging the cost of repairs, or any part of it, on corpus (/), the result is not infrequently extremely embarrassing and prejudicial to all parties (/»)• Thus, even in the case of leaseholds (where the equitable tenant for life is bound to keep in repair so as to satisfy the covenants of the lease), yet after ig) Re Eengler, Frowde v. Hengler, [18931 1 Cli. 586. (h) Be Smith, Smith v. TJods- worth, [1906] 1 Ch. 799. {i) Gow V. Forster (1884), 26 Ch. D. 672. k) Be CaHwright, Avis v. Newman (1889), 41 Ch. D. 532, overruling the so-called doctrine of permissive waste. But aliter where there is a condition to keep in repair expressly imposed by tlie settlements ( Woodhouse v. Walker {\Sm), 5 Q. B. D. 404). (I) Be TJe Teissier's Settled Estates, Uc Teissier v. De Teissier, [1893] 1 Ch. 153. (m) The same difficulty occurs in the United States of America, where it is settled that, in the absence of express power, an equitable life tenant cannot be interfered with by the trustee for the purpose of making repairs ; and that, on the other hand, if the life tenant makes repairs, he must pay the costs himself (Thurston v. Dickinson (1846), 2 Rich. Eq. 317 ; Cogswell v. Cogswell (1834), 2 Edw. ("h. 231). Duty of Trustee in Relation to Outgoings, etc. 253 his death the cost of dilapidations cannot be recovered by the Art. 46. remainderman from his executors (»). Indeed, few statutes would be more useful than a well-considered one dealing with this subject. Where, however, the legal estate in fee is in trustees (at all events where they have a power of or trust for sale (o)), it would seem that the court has Jurisdiction, under the principle of salvage (j)), to make an order empowering them to raise money for making repairs necessary for the preservation of the property (g), or even for erecting additional buildings necessary for rendering the property tenantable or saleable (r), and of apjjortioning the cost equitably l)etween income and corpus (s). Indeed, it has been held that trustees may, without an}^ order, do such repairs to leasehold property as are necessary to i^revent a forfeiture of the lease {f), and repay themselves out of the income (0, but without prejudice to the rights of tenant for life and remainderman inter sc (n); on the ground that trustees may expend moneyby way of salvage, and have a lien both on income and corpus for expenses properly incurred by them, as will be seen later on(?-). But although the court has jurisdiction to authorise a charge on the entire estate which is the subject of the settlement, for the purj)ose of raising money for repairs, where the legal estate is in trustees, it does not follow that the whole, or even any part, of the cost of such repairs will be saddled on the corpus. The cases are somewhat obscure as to this, but the following propositions are submitted, viz. : (1) Where the property w^as in disrepair when the tenant i-ioperty out for life came into possession, then, whatever its °^ repair at ^ . ' comnience- tenure may be, the court will not throw the cost mentof exclusively on him, but will sanction a mortgage, *^""^'* equitably apportioning the ultimate cost between corpus and income (x). There is, however no reported case showing how this equitable (71) Be Parry and HopMns, 40 Cli. D. 512 ; Be Household, [1900] 1 Cli. 160. Household v. Household (1884), (o) See yer Chitty, J., Be 27 Ch. D. 553 ; and see Drake v. De Teissier's Settled Estates, Be Trefiisis (1875), L. R. 10 Ch. Teissier v. De Teissier, [1893] 364, and Frith v. Cameron 1 Ch. 153. (1871), L. R. 12 Eq. 169; but ip) Be Willis, Willis v. Willis, cf. Be De Tahleij, Leighton v. [1902] 1 Ch. 15; Be LegWs Leighton {\%^d%), lo Ij. '\\ Z2S. Settled Estates, [1902] 2 Ch. 274. (s) Be Hotchki/s, Freke v. Vol- iq) See 2Jer Cotton and Lind- mady,supra;BeFarnhams Trusts, LEY, L.JJ., Be Hotchkys, Freke Law Union and Crown Insurance V. Calmady (1886), 32 Ch. D. Co. v. Hartopp, [1904] 2 Ch 561 408 ; Be Courtier, Coles v. (t) Be Foivler, Forder v. Odell, Courtier (1886), 34 Ch. D. 136; (1881), 16 Ch. D 723. but see contra, HihheH v. Cooke («) Be Hotchkys, ± rehe v. (1824), 1 Sim. & St. 552, and Calmady, supra. Dent V. Dent (1862), 30 Beav. 363. {v) Art. 78, infra. (r) Conway v. Fenton (1888), (*) Be CouHier, Coles v. 254 The Administration of a Trust. Art. 46. apportionment will be carried out ; but in one case in which the present writer appeared before Eomer, J., in chambers, that learned judge approved a scheme under which the trustees were to pay for a new roof in a tropical climate (which was estimated to last for twenty years only) by a sinking fund extending over that period. And where trustees, under a power, invested money in the purchase of real estate out of repair, the cost for putting it in repair was thrown exclusively on capital (^). On the other hand, the present writer has known of cases in his own practice where the judge has made a rough and ready aj^portionment, such as an arbitrator might make. There is in fact no technical rule — the judge directs what he considers to be fair and reasonable. (2) Where the jDroperty was not in disrepair when the tenant for life came into possession, and is of lease- hold tenure, the question is governed by the maxim qui sensit commodam debet sentire et onus ; and the equitable tenant for life, as he enjoys the income of the property, must perform the conditions of the lease as to repairs {z). But it seems that if he fails to do so during his life the remainderman has no remedy against his executors (a). (8) But where it is freehold, it would seem that, unless the case falls under the provisions as to improvements of the Settled Land Acts, or the settlement expressly or impliedly authorises the trustees to pay for current repairs out of the rents, nothing can be done either by the trustees or the court unless it becomes a clear case of salvage {h). In the latter case it is the duty of the trustees to apj^ly to the court for directions, when it will equitably apportion the cost of the repairs Current repairs of leaseholds, Current repairs of freeholds. Courtier (1886), 34 Ch. D. 136, as explained in Be Bedding, Thompson v. Bedding, [1897] 1 Ch. 876 ; Be Betty, Betty v. Att.-Gen., [1899] 1 Ch. 821, and Kingham v. Kingliam, [1897] 1 Ir. R. 170 ; acquiesced in by Keke- wiCH, J., in Be Gjers, Cooper v. Gjers, [1899] 2 Ch. 54, contrary to his previous decision in Be Tomlinson, Tomlinson v. Andrew, [1898] 1 Ch. 232. (y) Be F reman, TJimond v. Sewburn, [1898] 1 Ch. 28; but cf. Be Lord de Tabley, Leighton v. Leighton (1896), 75 L. T. 328. {z) Kingham v. Kingham, [1897] 1 Ir. R. 170; Be Bedding, Thompson v. Bedding, [1897] 1 Ch. 876; Be Betty, Betty v. Att.- Gen., [1899] 1 Ch. 821 ; Be Gjers, Cooper V. Gjers, [1899] 2 Ch. 54 ; and see Be Bartington, Beigh v. Kane, [1902] 1 Ch. 711, as to re-drainage of a leasehold house being borne by income. (a) Be Parry and Hopkins, [1900] 1 Ch. 160. ib) Be Willis, Willis v. Willis, [1902] 1 Ch. 15 ; Be Legh's Settled Estates, [1902] 2 Ch. 274. Duty of Trustee in Relation to Outgoings, etc. 255 between capital and income (r). The fact that the Art. 46. trustees are expressly authorised to pay for repairs out — of income or capital will not justify them in throwing on to capital the cost of repairs which ought to be borne by income for the purpose of relieving the tenant for life, such powers being p^'i'tid facie intended for the benefit of the estate and to be used so as to adjust the burden equitably (f/). (4) By s. 13 of the Settled Land Act, 1890 (53 & 54 Yict. Alterations c. 69), improvements authorised by the Act of 1882 '" ^^^ "^'"'^^ are to include additions to or alterations in buildings un.'iersIJtic.i reasonably necessary or proper to enable the same ^"^"^ ^^■^■'• to be let, and also the rebuilding of the principal mansion house. But, in the latter case, the sum to be applied out of capital money is not to exceed one half of the annual rent of the settled land. Under this provision it has been held, that although mere repairs and improvements will not amount to a " rebuilding " of the principal mansion house {<■), yet reconstruction, alteration, and enlargement of a considerable part of the house may (/). For inscance, the Act was held to apply where the house had become infested with dry rot, and portions had to be rebuilt in order to save the whole (g). It has been likewise held that the substitution of a block floor over concrete for ordinary floor boards in order to keep dry rot out of the basement of a large house let in separate offices was an alteration reasonably necessary or proper to enable the same to be let(/(}. With regard to the repair of estates belonging absolutely to infants, the reader is referred to the classification made by the late Mr. Kenyon Parker, and set forth in Be Jackson, Jackson v. Talbot, (188'2) 21 Ch. 1). at p. 787, and to the case of lie Haickrrs Settled Estates, Di(ff\. Haivker(i). (c) See note {y) on p. 254. (g) Be Lego's Settled Estates, (d) Be Lord de Tabley, LeigUon [1902] 2 Ch. 274. V. LeigUon (1896), 75 L. T. 328. {h) Stanford v. Boberts, [1901J (e) Be De Teissier's Settled 1 Ch. 440 ; and see also Be Estates, De Teissier v. De Clarke's Settlement, [1902] 2 Ch. Teissier, [1893] 1 Ch. 153 ; Be 327 ; Be GasJcelVs Settled Estates, Lord de Tabley, LeigUon v. [1894] 1 Ch. 485 ; both approved LeigUon, sufra ; Be WrigMs by Coui-t of Appeal in Be Settled Estates (1900),83L. T. 159. Blagrave's Settled Estates, [1903] (f) Be Walker's Settled Estate, 1 Ch. 560; Standing v. Oray, [1894] 1 Ch. 189; and see Be [1903] 1 Ir. R. 49. Leveson-Gower's Settled Estate, (i) (1897) 66 L. J. Ch. 34l. [1905] 2 Ch. 95. 256 The Administration of a Trust. Art. 46. Renewal of renewable leases. Act docs not alter ultimate incidence of burthen. Fencinp of unfenced land. By s. 19 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), a trustee of renewable leases may if he thinks fit, and must if required by any beneficiary so to do, use his best endeavours to obtain a renewal; and for that purpose is empowered to surrender existing leases. But where the beneficiary in possession is entitled, under the settlement, without any obligation to renew or to contribute to the renewal, then the Act does not apply unless he gives his consent. The second sub-section provides that — "If money is requked to pay lor the renewal, the trustee effecting the renewal may pay the same out of any money then in his hands in trust for the persons beneficially interested in the lands to be comj^rised in the new lease, and if he has not in his hands sufficient money for the purpose, he may raise the money required by mortgage of the heredita- ments to be comprised in the renewed lease, or of any other hereditaments for the time being subject to the uses or trusts to which those hereditaments are subject, and no person advancing money upon a mortgage purporting to be under this power shall be bound to see that the money is wanted, or that no moi^e is raised than is wanted for the purpose." This section applies to trusts created before, as well as after, the Act, but is of course subject to the directions of the settlement. It was held by Kekewich, J., that its object was merely to assist trustees in renewing leases, and in no way aft'ects the ultimate incidence of the expense as between tenant for life and remainderman, and that the fines and expenses were distributable among the beneficiaries according to their enjoyment, such enjoyment to be ascertained by actuarial valuation (k). Where the question arises as to the incidence of the cost, not of mere repairs, but of putting property into a better condition than it was originally in, it would seem that no jDart of the cost falls on income. Thus, the expense of fencing waste lands granted to a trustee for the benefit of the estate must be paid out of corpus exclusively (/). General costs incident to administra- tion. Sub-Paragraph (d). Legal expenses incident to the administration of a trust almost exclusively fall on capital, unless the settlor has expressly provided for them ; for they are for the benefit of (k) Be Baring, Jeune v. Baring, [1893] 1 Ch. 61. (7) Earl Cowlei/ v. Wellesley (1866), L. R. 1 Eq. 656 ; and see now Settled Land Act, 1882 (45 & 46 Vict. c. 38), s. 25, and judgment of Kekewich, J., in Be Vernei/'s Settled Estates, [1898] 1 Ch. 508. Duty of Trustee in Relation to Outgoings, etc. 257 all persons interested. Thus, the costs of the appointment of Art. 46. new trustees {)n), the costs incident to the investment or change of investment of trust funds (n), the costs of obtaining legal advice (o), and of taking the direction of the court (j^), the costs of an administration action ((/), the costs of paying money into court under the Trustee Act, 1893 (56 & 57 Vict, c. 53) {)■), the costs of bringing or defending actions against third parties for the protection of the estate (-s) (c.//,, against lessees for breach of their covenants to repair (t) ), and the like, are all i)ayable out of corpus. On the other hand, where money is paid into court under the Trustee Act, 18U3, the costs of all necessary parties to a petition for obtaining an order for the payment of the income to the tenant for life have been held to be payable out of income (») ; but it is difficult to see why. And where a testator gave a fund to trustees upon trust for investment in land, which was to be settled to the use of several persons successively for their lives, and the fund was paid into court in an administration suit, it was held by Malins, V.-C, that the costs of a petition by a tenant for life for payment of the dividends to him were pay- able out of corpus. As the Vice-Chancellor said : " If the fund had been invested in land, the tenant for life would simply have entered into possession without incurring the expense of a petition, and I do not see why he should be in a worse position because the fund is in court. The fund remains here for the advantage of all persons interested, and it seems to me that all should bear the costs of this petition." It is apprehended that this is common sense. (m) Ee Fellow's Settlement Estates (1881), 16 Ch. D. 587, (1856), 2 Jvu-. (N. s.) 62; Be and Ee Earl of Berkeley's Will Fiilham (1850), 15 Jur. 69 ; Ex (1874), L. K. 10 Cli. 56. And as 'parte Davies (1852), 16 Jur. 882. to defending foreclosure actions [n) But secus of petition to and obtaining transferees of the vary investment of funds in mortgage, see More v. More coujrt, see Equitable Eeversionary (1889), 37 W. R. 414. Interest Society v. Fuller (1861), {t) Ee McClare's Trusts, Carr 1 Johns. & H. 379. v. Commercial Union Insurance {o) Poole V. Pass (1839), 1 Co. (1906), 76 L. J. Ch. 52. • Beav. 600. («) Ee Marner's Trusts (1866), (p) Ee Elmore's WUl (1860), L. R. 3 Eq. 432; Ee Evans's 9 W. R. 66; Ee Leslie (1876), Trusts (1872), L. R. 7 Ch. 609 ; 2 Ch. D. 185. Ee Whitton's Trusts (lS6d), L. R. (a) Ee Turnley (1866), L. R. 8 Eq. 352; Ee Smith's Trusts 1 Ch. 152. (1870),L. R. 9 Eq. 374. Scrivener (r) Ee Whitton's Trusts (1869), v. Smith {1869), L. R. 8 Eq. 310; L R 8 Eq 352. Longuet v. Hockley (18/0), 22 (s) See Stott v. Milne (1884), L. T. (n.s.) 198; but see /i;^^'/ 25 Ch. D. 710; Hamilton v. v. Watson {1S64), 12 \\ . K. bHL, Tighe, [1898] 1 Ir. R. 123; and contra. see also Ee Earl Be la Warr's T. s 258 The Administration of a Trust. Art. 47. Art. 47. — Ihiti/ of Trustee to e.eercise lleasonahle Care. Trustees are not insurers (//), and except where courts of equity have imposed distinct and stringent duties upon them (which duties are mentioned in the succeeding articles of this chapter), they are only bound to use such due diligence and care in the management of the estate as men of ordinary prudence and vigilance would use in the management of their own affairs {z). The mere fact that a trustee has acted under the advice of his counsel or solicitor will not necessarily excuse him (c(), even from paying the costs of the action (/>), where a breach of trust has been committed ; nor, on the other hand, does the fact that a trustee is remunerated add to his liability {c). Diflicuity of Although the rule is well settled that a trustee discharges api'iying the j^^g j^^^y jf Y\Q mauapre the trust estate with those precautions principle. , . , "^ . ° ^ which an ordinary prudent man of business would take in managing similar affairs of his own, it is a rule wiiich is not easy of application. The difficulty arises from the fact, pointed out by Lord Blackburn in the leading case of Speight v. Gaunt ((/), that " Judges and lawyers, who see brought before them the cases in which losses have been incurred, and do not see the infinitely more numerous cases in which expense and trouble and inconvenience are avoided, are apt to think men of business rash." The principal cases in which the care demanded of a {y) Be Hurst, Addison v. Topp But it may be evidence of dili- (1892), 67 L. T. 96. gence, in cases where the alleged {z) Brice v. Stokes (1805), 11 breach is negligence. See 'per Ves, 319,2 Wh. & Tu. Lead. Cas. Lord Watson, Learoyd v. White- (7th ed.) 633 ; Massey v. Banner ley (1887), 12 App. Cas. at p. 734, (1820), IJac.&W. 241 ;i?».MocA;v. and Stott v. Ililne (1884), 25 Bullock (1886), 56 L. J. Ch. 221; Ch. D. 710 ; and see now also Speight v. Gdunt (1883), 9 App. Judicial Trustees Act, 1896 (59 Cas. 1. As to the protection now & 60 Vict. c. 35). accorded to trustees who liave tZe {b) Devey v. Thornton (1851), /ficto committed breaches of trust 9 Hare, 222; Boulton v. Beard where they have acted honestly (1853), 3 De G. M. & G. 608. and reasonably, see tn/ra, Art. 90. (c) Jobson v. Palmer, [1893] {a) Doyle v. Blake (1804), 2 1 Ch. 71. But it may be ground Sch. «fe L. 231 ; Be KnighVs for refusing to excuse a breach Trusts (1859), 27 Beav. 45 ; of trust under the Judicial National Trustees Co. of Austral- Trustees Act, 1896, as to which asia V. General Finance (Jo. of see infra, Art. 90. Australasia, [1905] A. C. 373. (cZ) Supra. Duty of Trustee to Exercise Reasonable Care. 250 trustee has been considered are those arising out of the invest- Art. 47. ment of trust funds ; but as the duties of a trustee in regard to investment are of extreme importance, tliey will be discussed separately in the next article. It is the duty of a trustee to realise debts owing to tlie Realisation trust estate with all convenient speed (r). He should not "^^' '•^'•^t'^- only press for payment, but, if they are not paid within a reasonable time, should enforce payment by means of legal proceedings (/). It has been said that the only excuse for not taking action to enforce payment of such debts, is a ircll- foiuidcd belief, on the trustee's part, that such action would be fruitless (r/) ; that the burden of proving the grounds of such belief is on the trustee ; and that no consideration of delicacy and no regard for the feelings of relatives or friends will exonerate him from this disagreeable duty(/). Whether, however, this broad dictum is consistent with s. 21 of the Trustee Act, 1898 (56 & 57 Vict. c. ryS), (a re-enactment of s. 37 of the Conveyancing Act, 1881 (44 & 45 Yict. c. 41), which curiously enough was not referred to), is respectfully questioned. The late Sir George Jessel, M.R., at all events, thought that the probable efi'ect of that enactment was to make the question entirely one of good faith and not one of iv ell-founded belief (//). And the provisions of the Judicial Trustees Act, 1896 (59 & 60 Vict, c. 35), by which the court is now empowered to relieve trustees against breaches of trust where they have acted honestly and reasonably, would seem to give statutory effect to this view (/)• A recent decision of Eve, J., however, shows that " good faith" involves the exercise of "active discretion " on the part of the trustee, and that loss arising from his supineness or care essness is altogether outside the section (./)• On the other hand, it has been held that a trustee is not bound to commence legal proceedings when, in the exercise of a reasonable discretion, he considers it inexpedient to do so. For instance, in a case where one beneficiary would have been ruined by the immediate realisation of a debt due (e) Buxton v. Buxton (1835), v. Eyre (1847), 6 Hare, 137. 1 Myl. & Cr. 80. (h) Be Owens, Jones v. Owens (/) Be Brogden, Billing v. (1882), 47 L. T. 61, and infra, Brogden (1888), 38 Cli. D. 546, p. 262. and Millar's Trustees v. Bolson (i) See i7ifra, Art. 90, and per (1897), 34 So. L. E. 798; Fen- Kekewich, J., Be Houghton, weMv. GreeH.weH(1847), lOBeav. Eawley v. Blale, [1904] 1 Cli. 412; Qrove v Brice (1858), 26 622. Beav. 103- (?) ^'^ Greenwood, Greenwood v. {g) Maitland v. Bateman Firth {1911), 105 L. T. 509. (1844), 13 L. J. Cli. 273 ; Simes s2 260 The iVr>MiNisTRATioN OF A Trust. Art. 47. How far trustee who is executor of debtor is bound to retaiu. from him to the trust estate, and the other beneficiaries (his children) would have been seriously prejudiced, the House of Lords held that the trustee exercised a reasonable discretion in refraining from suing the debtor and in allowing him time, and that the trustee was consequently discharged from liability for an}^ consequent losses (k). However, the practi- tioner must be warned that he would incur the most serious responsibility if he were to advise a trustee to act in a similar manner. For if the dictum cited on the preceding pages (as to the necessity of a well-founded belief) is correct, the onus would lie on the trustee to prove that the facts iccre as he believed them ; and the difficulty of proving this (perhaj)s many years afterwards) is obvious. In all such cases, there- fore, the proper course is to issue an originating summons asking the direction of the court (/). In Re Bcnett, WardY. Benett (m), the question was discussed in the Court of Appeal as to how far a trustee who is also the personal representative of a debtor to the trust, is bound to retain the debt as against the debtor's other creditors. In that case the alleged trustee was personal representative of the last surviving trustee, who had committed a breach of trust, and the case went off on the ground that the personal represen- tative was not a trustee of the trust funds, but merely a bare depositary of the legal title to the trust property, and was therefore not bound to exercise her right of retainer because she could have been sued by the beneficiaries. In giving judgment, however, Stirling, L.J., after pointing out that if the claim were well founded the result would be that, in every case in which a sole surviving trustee had died insolvent and having committed a breach of trust, it would be the duty of his legal personal representative to exercise the right of retainer for the benefit of the beneficiaries, for which there was no authority, added: " I do not deny that there maybe cases in which the legal personal rejDresentative of the deceased trustee might be called upon by the cestnis que trusts to exercise a legal right of retainer vested in him. It would be easy to cite examples of this. For instance, one might take the case of a surviving trustee of a marriage settlement [h) Ward v. Ward (1843), 2 H. L. Cas. 777, n., at p. 784 ; Clack V. Holland (1854), 19 Beav. 262 ; and see Be Hiirst, Addison v, Topp (1892), 67 L. T. 96. {I) Ee Brogden, Billing v. Brogden (1888), 38 Ch. D. at p. 556. {m) [1906] 1 Ch. 217, following He Ridley, Eidley v. Ridley, [1904] 2 Ch. 774, and distmguish- ing Fox Y. Garrett (1860), 28 Beav. 16, and Be, Owen (1889), 23 L. R. It. 328. Duty of Trustee to Exercise Reasonable Care. 2G1 containing a covenant on the part of one of two trustees to pay Art. 47. a sum of money which would, when paid, form part of the trust estate : supposing that the trustee who entered into tliat covenant died insolvent and intestate, and the surviviii" co-trustee as a lei/al creditor in respect of the debt or the covenant took out administration to his estate, then in ray opinion, having obtained that administration by rirtnc of lila jjosition as sii.rririiiii trustee of the settlement, he would be bound to exercise such powers as the law' gave him for the benefit of the cestuis que trusts." It appears, therefore, that a trustee who happens to be also personal representative of a person who owes a legal debt to the estate must exercise his power of retainer, but secns where the debt is merely equitable {e.g. a liability for breach of trust), although even then the trustee niaj/, if he so pleases, exercise the right of retainer {ji). The question not infrequently arises whether, when a security, Not bound to proper at the date of investment, subsequently becomes liepreciated deteriorated, so as to leave no safe margin, it is the duty of investment, the trustees to call the money in. In Re Medland, Eland v. Medland (o), North, J., held that it was not necessarily their duty to do so, but they have a discretion, which they must exercise as practical men, with a due regard to all tbe circumstances, including the position and solvency of the mortgagor. However, this particular matter is now provided for by s. 4 of the Trustee Act, 1893, Amendment Act, 1894 (57 Vict. c. 10), by which it is enacted that— " A trustee shall not be liable for breacb of trust by reason only of his continuing to hold an investment which has ceased to be an investment authorised by the instrument of trust or by the general law." Whether this enactment is retrospective seems doubtful (;)). Kekewich, J., held that it was not(q), but on appeal the Court expressed no opinion on the point. Whether it exempts a trustee from making periodic inspections of mortgaged property appears to be doubtful (/>). Trustees might always release or compound debts due to the ^'^^Jj^'Jjj;'- (n) Sander v.Heathfield{lSl 4:), Harrison v. Thexton (1858), 4 L. R. 19 Eq. 21 ; Be Faithfull, Jur. (N. s.) 550 ; Re Ch'P^"""' nardwick v. Sutton (1887), 57 Cocks v. Chapman, [1896| - L. T. 14, quoted without dis- Ch. 763; and Eawsthorne v. approval by Stirling, L.J., in Bowley, [1909] 1 Ch. 409, note. Be Benett, Ward v. Benett, [1906] (2^) Be Chapman, Cocks v. 1 Ch 217 Chapman, [1896] 1 Ch. 323. _ (0) (1889) 41 Ch.'D. 476; and (g) See i^^r Parker, .L in see also Bobinson'y. Bobinson Shaw v. Cates, [1909] I th. 6H J, ai (1851) 1 De G. M. & G. 247; the end of his judgment on p. 409. 2f52 The Administration of a Trust. Art. 47. Allowin.2: rents to fall in arrear. Bankrupt trustee indebted to trust should prove. trust estate, where they bond fide and rcasonahhj believed that this course was for the benefit of their beneficiaries (r). And now by s. 21 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), (which is merely a re-enactment of s. 37 of the Conveyancing Act, 1881 (44 & 45 Vict. c. 41) ), two or more trustees acting together, or a sole acting trustee, iclwre a sole trustee is, hij the settlement, authorised to execute the trusts and pon-ers thereof, may (1) accept any composition, (2) accept any security, real or personal, for any debt or for any property, real or personal, claimed, (3) allow time for payment of any debt, (4) compromise, compound, abandon, submit to arbi- tration, or otherwise settle, any account, claim, or thing whatever relating to the trust, and (5) enter into and execute all such agreements, releases, etc., as they or he may deem expedient, without being responsible for any loss occasioned by any act or tiling so done by Jiini or tlieiii in good faith. The exact effect of this enactment has, so far, not been judicially decided ; but, as above stated, the late Sir George Jessel, M.R., intimated that " it might have a revolutionary effect on this branch of the law. It looks as if the only question left would be whether the [trustees] have acted in good faith or not " (s). In view of the decision in lie Brogden, Billing v. Brogden (t), however, trustees would, in most cases, be ill-advised to act upon this dictum. The reader is warned that the words " two or more trustees acting together ", do not mean that two only of a greater number can exercise the jDOwer. One of several executors may, and may even compromise a claim by a co-executor {u), but trustees must act jointly. This is probably the explanation of the fact that no reference to this section was made in Be Brogden, Billing v. Brogden. Where trustees allowed rents to get in arrear, it was held that they were liable to make good the arrears, though without interest (r). Where a trustee, indebted to the trust, becomes bankrupt, it is his duty to prove the debt ; and if he neglect to do so . he will be liable for the loss, notwithstanding that he may have (r) Blue V. IlarsJiall (1735), 3 P. Wins. 381 ; Forslum v. Iligginson (1857), 8 De G. M. & G. 827. (s) Be Owens, Jones v. Owens (1882), 47 L. T. 61. [t) (1888) 38 Ch. D. 546. (m) Be Houghton, Hawley v. Blake, [1904] 1 Ch. 622; but ef. Be Fish, Bennett v. Bennett, [1893] 2 Ch. 413. {v) Tebbs v. Carpenter (1816), 1 Madd. 290 ; and see as to interest, Lowson v. Copeland (1787), 2 Bro. C. C. 156; TFtZes V. Gresham (1854), 2 Drew. 258 ; Bowley v. Adams (1849), 2 H. L. Cas. 725. Duty of Teustee to Exercise PvEAsoNAnr.E Caue. 2f;3 obtained his certificate (.f). If he absconds, the beneficiaries Art. 47. may prove (ij) ; and if a co -trustee has paid part, the beneficiaries — may nevertheless prove for the whole (z) . So, again, where a settlor has, for valuable consideration, KnforcinR covenanted to settle property, a trustee who neglects to ^■''^■^■"""t enforce the covenant is liable for any loss occasioned, Sti'dn thereby (a), unless expressly excused by the settlement. Again, it has been held that if a trustee neglects to register Xcgiect to the trust instrument (where it requires to be registered), ';^"J;i^'er in and the settlor is thereby enabled to eftect a mortgage on county, the property, the trustee will be liable (b). In the exercise of due diligence, trustees for sale will, of .loining in course, use their best endeavours to sell to the best advan- *^,',^v tage. They should, therefore (in general), abstain from prupt'rties. joining with the owners of contiguous property in a sale of the whole together, unless such a course would be clearly beneficial to their beneficiaries. For, by doing so, they expose the trust property to deterioration on account of the flaws, or possible flaws, in the title to the other property. But " suppose there were a house belonging to trustees, and a garden and forecourt belonging to some- body else, it must be obvious that those two pro2)erties would fetch more if sold together than if sold separately. You might have a divided portion of a house belonging to trustees, and another divided portion belonging to somebody else. It would be equally obvious if these two portions were sold together, that a more beneficial result would thereby take place. . . . But in those cases where it is not manifeat on a mere inspection of the properties that it is more beneficial to sell them together, then you ought to have reasonable evidence that it is a prudent and right thing to do; and that evidence, as we know by experience, {x) Orrett v, Gorser (1855), 21 instituted for disputing the will, Beav. 52. it was held that it was the (y) Be Bradley, Ex -parte Walton trustee's duty to make such (1910), 54 Sol. J. 377. request {Be Allan, Ilavelock v. (s) Edwards v. Hood-Barrs, Haveloek-Allan {\S9G), 12T.L.K. [1905] 1 Ch. 20. 299). (a) Woodhouse v. Woodhotise {b) Macnamara v. Carey (1869), L. R. 8 Eq. 514; (1867), 1 Ir. R. Eq. 9 : and as to JWGachen v. Dew (1851), 15 neglect to give notice to an Beav. 84 ; and Be Brogden, assurance company ot an assign- Billingv. Brogden (1888),38Ch.D. ment to the trustees of a pohcy, 546. Where a testator directed see Kingdon v. Castleman (18/7), that a beneficiary was to lose all 25 W. R. 345. But ([uery interest in tlie estate if he did not, whether these neglects ot a at the request of the trustee, stay all skilled agent woukl now be H.eia proceedings which lie might liave to fall on the trustee. 204 The Administration of a Trust. Art. 47. is obtained from surveyors and other persons who are competent judges " (c). " Where trustees for sale are joint owners with a third party, or are reversioners, it is obvious that they may in general join in a sale ; for everybody knows that as a general rule (of course there are exceptions to every rule) the entirety of a freehold estate fetches more than the sum total of the undivided parts, or the separate value of the particular estate and reversion " (d). This view has now received the express sanction of the legislature (e). Depreciatory Again, trustees for sale ought not to do any act which will of°aie°"^ depreciate the property ; therefore they ought not H»»m*.s.sar//^ to limit the title, for no reasonable man would unnecessarily depreciate his own property by such means. The subject of depreciatory conditions was formerly of great importance, because a purchaser might have objected to complete, on the ground that such conditions constituted a breach of trust for which he himself, taken with notice, might be held responsible (/'). However, since 1888, the state of the law with regard to such conditions has been altered. Now, no sale made by a trustee ccm he i)npeiic]i('d at all, unless the beneficiaries prove that the consideration was thereby rendered inadequate ; and, after the execution of the conveyance, no such sale can be impeached as against the purchaser, unless the beneficiaries also prove that such purchaser was acting in collusion with the trustee at the time when the contract for sale was made. Moreover, no purchaser can any longer make any requisition or objection on any such ground ; and a trustee who is either a vendor or purchaser is not bound to exclude the application of s. 2 of the Vendor and Purchaser Act, 1874 (37 ct 38 Yict. c. 78) ((/). The meaning of this enactment is not, however, so clear as could be desired. Is it intended exclusively to protect purchasers, and to free them from the necessity of taking the objection ; or is it also intended to protect the trustee in the event of the beneficiaries suing the trustee for breach of trust ? The words " no sale shall l)e impeached " are certainly more apt for expressing the first of such purposes than the second. Yet it is conceived that the trustee would receive the benefit of (c) Per Jessel, M.R., Ee (/) Dancev.Goldinghain{18"3), Cooper and Allen to BarlecWs L. K. 8 Ch. 902 ; Dunn v. Flood Contract (1876), 4 Ch. D. at (1883), 25 Ch. D. 629; and on p. 817. appeal (1885), 28 Ch. D. 586. (d) Ibid. ig) Trustee Act, 1893 (56 & 57 (e) Trustee Act, 1893 (56 & 57 Vict. c. 53), ss. 14, 15. Vict. c. 53), s. 13. Duty of Trustee to Exercise Pieasonabt.e Care. 20/j the doubt if the case should ever arise, and that henceforth the Ait. 47. onus of proving loss in such transactions will fall u[)()ii the beneficiaries. Again, if trustees for sale, or those who act under their Improvident authority, fail in reasonable diligence in inviting competi- **'^'^- tion, or if they contract to sell under circumstances of great improvidence or waste, they will be personally responsible (/<) ; and the onus of proving that they acted reasonably is upon them(/). It is, therefore, the duty of trustees for sale to inform themselves of the real value of the property, and for that purpose to employ, if necessary, some experienced person to value it (k). But if they perform this duty, they will not be responsible if the beneficiaries impeach the sale as improvident (/). Precisely the same principles apply to the leasing or letting improvident of trust property ; and if the trustees do not take proper steps, }g'^|"^ "^ by consulting a practical valuer, to ascertain the proper rent, or, a fortiori, knowing the proper rent accept a lower rent, they will be liable to make good the difference (in). Nor must they give a future option to the tenant to purchase the estate ; for if the estate should increase in value they will have given the increase away, whereas if it should decrease, the person to whom the option is given would not exercise it (n). Whether they can give an option to the tenant to determine the lease (say at the seventh or fourteenth year), or to remain, does not seem to be quite clear. But in He Lander and Bagleifa Contract (a), Chitty, J., seemed to assume that a trustee with power to lease for a term of ten j-ears could give tbe lessee an option to determine the lease at the end of three years, saying : " It was argued that it must necessarily be a breach of trust to grant a lease for a term of years at a rent of ;t'80 a year, with an option, on the part of the tenant to continue for another seven years, or less term, at an increased rent. It would take a good deal of argument to convince me of the soundne.ss of that proposition. As at present advised I do not see any substantial difference between an agreement to let for ten (h) Ord V. Noel (1820), 5 Madd. 4 Ch. D. at p. 816. 438; and Ano7i. (1821), 6 Madd. (1) Grove v. Search (1906). 22 10; Pechel v. Fotder (1795), 2 T. L. R. 290. Anst. 549. (w) Ferrahy v. llohxou (1847). {i) Norris v. Wright (1851), 14 2 Ph. 255. Beav. 291. (») Clay v. Bufford (1852), 5 {k) Oliver v. Court (1820), 8 De G. & Sm. 768 ; and Oceanic Pr. 127 ; Camj)beU v. Walker Steam Navigation Co. v. Sidher- (1800), 5 Ves. 678 ; and see per berry (1880), 16 Ch. D. 236. Jessel, M.R., Be Cooper and (o) [1892] 3 Ch. 41, at p. 49. Allen to Harlech's Contract (1876), 266 The Administration of a Trust. Art. 47. years, with the power to the tenant to determine it at the end of three years, and an agreement to let for three years with the power to the tenant to continue for another seven years. But I n-ill leave tliis point openJ" It seems to he clear, however, that where a right to renew is given, the original plus the renewed term must not exceed the maximum term for which the trustees can lease {p). Improvident The same principles hold good in the case of trustees for purchase. purchase, who ought clearly to satisfy themselves of the value of the property, and for that purpose to employ a valuer of their own, and not trust to the valuer of the vendor. For a man may bond fide form his opinion, but he looks at the case in a totally different way when he knows on whose behalf he is acting ; and if the trustees rely upon the vendor's valuer, and he, however honn fide, values the property at more than its true value, they will be liable {q). Trustees for purchase should also take reasonable care that they get a good marketable title, and that they do not, by conditions of sale, bind themselves not to require one (/•) ; and they should never purchase without getting the legal estate (.s). Moreover, they should never purchase land merely as a speculation without having money in hand to pay for it {t). Error of Even before the Judicial Trustees Act, 189G, gave the court judgment. power to excuse a trustee who has acted reasonably and honestly, a trustee was not responsible for a mere error of judgment, if he had exercised a reasonal^le discretion and acted with diligence and good faitli. Thus, where an executor omitted to sell some foreign bonds for a year after the testator's death, although there was a direction in the will to convert with all reasonable speed, he was held irresponsible for a loss caused by the bonds falling in price ; for although the conclu- sion he came to was unfortunate, yet having exercised a houd fide discretion, the mere fact of the loss was not sufticient to charge him (/O- ^1 fortiori will this be so where there is power {p) See Bellnnger v. Blagrave render copyholds, see Wyatt v. (1847), 1 De G. & Sm. " 63 ; Sharratt (1840), 3 Beav." 498; Magrane v. Archbold (1813), 1 and as to equitable mortgages Dow, 107. generally, Norris v. Wright (g) Ingle v. Partridge (1865), (1851), 14 Beav. 291 ; Locllmd 34 Beav. 411 : and see also Fry v. BeUly (1857), 1 De G. & J. V. Tapson (1884), 28 Cli. D. 268 ; 464 ; and infra, Art. 48. Waring v. Waring (1852), 3 [t) Ecclesiastiad Commissioners Ir. Ch. Rep. 331. v. Finney, [1900] 2 Cli. 736. (r) Eastern Counties Rail. Co. y. (u) Fusion v. Fuxton (1835), IJawkes (1855), 5 H. L. Cas. 331. 1 Myl. Sc (Jr. 80 ; and see F addon (s) And as to advancing trust v. liichardson (1855), 7 De G. M. money on a covenant to sur- & G. 563. Duty of Trustee to Exercise Eeasonable Care. 267 to postpone a sale (x). As to what constitutes a reasonable Art. 47. delay, this depends on the particular circumstances affecting each case. Prima facie, a trustee ought not to delay realisa- tion beyond a year, even where he has apparently unlimited discretion (ij) ; and if he ])rocrastinates beyond that period, the onus will be cast upon him of proving that the delay was reasonable and proper (,:). If he considers further delay very desirable he should apply to the court (a). A trustee will not be liable if the trust property be stolen, Theft of trust provided he has taken reasonable care of \t{h), even although prop"'*^y- the thief be his own servant, if, on the facts proved, it appear that the trustee was justified in deputing the custody of the property to such servant {e.g., the manager of a trust business) (c). Yet, by a curious anomaly, it has been held that a trustee is liable if he is induced by fraud or forgery to hand it over to the wrong person ((?). It is difficult to under- stand how this latter rule could have come into being, except upon the false analogy of a trustee to a banker or creditor. As has been shown in this article, a trustee is in the position of a gratuitous bailee ; he must take reasonable care of the trust property, and if it is lost or stolen he is discharged from responsibility, provided that he was guiltless of negligence. If, then, a careful trustee is not responsible for property stolen from his custody, upon what conceivable ground should he be held responsible for property obtained from him by false pretences or forgery, which are crimes far more subtle, and against which it is much more difficult to safeguard himself ? Since the Judicial Trustees Act, 1896 (59 & 60 Vict. c. 35), such a technical breach of trust can and ought to be excused by the court (e). Where a trustee of a policy of insurance neglected to indorse Neglect in on it a memorandum of the trust, or to give notice to the ^ecm-rtfes^™^*^ office, and subsequently carelessly allowed it to get into the settlor's hands, who mortgaged it to a third party, the trustee {x) Be Schneider, Kirby v. v. Empson (1856), 22 Beav. 181. Schneider{l906),22T.L. 11.223. (a) See 3Iorris v. Ilorris {y) ScuWiovfe v. Tipper (1858), 4 Jur. (n. S.) 802. (1871), L. R. 13 Eq. 232 ; and as {h) Jones v. Lewis (1751), 2 to the propriety of an executor Ves. Sen. 240 ; Job v. Job (1877), allowing the testator's money 6 Ch. D. 562. invested on mortgage to remain (c) Jobson v. Palmer, [1893] so until wanted, see Orr v. 1 Ch. 71 ; and see also TFeirv. 7?eH Newton (1791), 2 Cox, 274; (1878), 3 Ex. D. 238. Robinson v. Bobinson (1851), (d) See Art. 49, and illustra- 1 De G. M. & G. 247. tions thereto, infra. {z) See per Wood, L.J., in (e) See Art. 90, infra : Be Grayburn v. Clarkson, (1868), Smith, Smith v. TJiompson {1902), L. R. 3 Ch. at p. 606, and Hughes 71 L. J. Ch. 411. 168 The Administration of a Trust. Art. 47. was held liable (/). Where trustees hold securities payable ■ ■ to bearer, the proper course is to deposit them with their bankers (g), and not with their solicitor (/;), nor with one only of the trustees (i), unless for purposes of sale in cases where he is a stockbroker (A). So a trustee of chattels should make and keep an inventory of them, so that if lost by the neglect or fraud of others, proper evidence of the nature and value of the chattels may be preserved (/). A trustee ought to invest moneys in his hands subject to the trust within a reasonable time; and if he omits to do so, he will be charged interest (»/) ; and if tlie fund l)e lost, he will be liable to make it good(H). A fortiori will he be liable where he has left the trust fund in the sole custody of his co-trustee (o). And, on similar grounds, trustees ought to accumulate infants' property by way of compound interest {j^). A trustee is not bound to insure premises against loss by fire iq) ; but by s. 18 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), trustees are expressly authorised to do so to an amount not exceeding three-fourths of the value of the projDerty insured, and to pay the premiums out of the income of that property- or of any other property subject to the same trusts. The section applies to heirlooms settled to accomi^any land in strict settlement, where the trustees can pay premiums out of the income of capital moneys in their hands (r). It does not, however, apply to property held on simple trust for bene- ficiaries absolutely, and is, of course, subject to the express directions (if any) of the settlement. If trustees do not insure, and a beneficiary does so out of his own moneys, he ma}' keep if) Eingdon v. Castleman Fiddon (1857), 23 Beav. 386; (1877), 25 W. K. 345; and see and Be Jones, Jones v. Searle Barnes v. Addy (1874), L. E. (1883), 49 L. T. 91. In Cann v. 9 Cli. 244, and Hobday v. Peters Cann (1884), 51 L. T. 770, (Xo. 3) (1860), 28 Beav. 603. Kat, J., considered that six {g) Re De Pothonier, Dent v. months was the maximum De Pothonier, [1900] 2 Ch. 529. period. But aliter with regard to non- (n) Moyle v. Moyle (1831), 2 bearer securities, see Art. 50, Russ. »fe Myl. 710. infra. (o) Lewis v. Nobbs (1878), 8 (h) Field v. FieU, [1894] 1 Ch. Ch. D. 591. 425. ip) Conveyancing Act, 1881 (i) Candler v. Tillett (1855), 22 (44 & 45 Vict. c. 41), s. 43. Beav. 257. (?) Bailey v. Gould (1840), (A;) Re Gasquoine, Gasquoine 4 Y. & Coll. 221 ; and Bobson v. Gasquoine, [1894] 1 Ch. 470. v. Land (1850), 8 Hare, 216. {I) Temple v. Thring (1887), (r) Re Earl of EgmonVs Trusts, 56 L. J. Ch. 767. J^efroy v. Earl of Egmont, [1908] (m) See Gilroy v. Stephen 1 Ch. 821. (1882), 30 W. R. 745 ; Stafford v. Duty of Trustee to Exercise Reasonable Cauk. 200 whatever is paid under the poUcy for himself («) ; hut sccitH Art. 47. where the premiums are paid out of the trust income (0- Trustees are generally bound to see that trust premises do How far not fall into decay (»). But, as we have seen, the cost of l!?""f..^;l^"*^ repairs is not necessarily thrown exclusively on income (x), and trustees should apply to the court for directions as to raising the necessary money ((()• It has, however, been decided that when leascJioId houses are held in trust to receive the rents and pay them to A. for life, and after his death in trust for B., the trustees, in order to avoid forfeiture, are entitled to apply the rents in keeping the houses in a proper state (//). Bui this is without prejudice to the ultimate incidence of the costs (~). Trustees being liable for gross negligence, are a Jorlvni M(dajitment or not, in manner following, that is ■ to say : (a) In any of the parliamentary stocks or public funds or government securities of the United Kingdom : (b) On real or heritable securities in Great Britain or Ireland (waus. see Be Stanley, Tennant v. 80, n. Stanley, [1906] 1 Ch. 131, where 278 The Administration of a Trust. Art. 48. should not invest in trade, or shares of trading companies. bond (a). But it is humbly submitted that however this might be if the expression "personal security " stood alone, its juxtaposition in this case with the alternative " real security" ought to have restricted its meaning to " the security of personal property," and that to enlarge it so as to cover the security of a personal promise was scarcely justifiable (6). However, it has been held by Kekewich, J., that even where the direction is not imperative, trustees may lend on personal security if satisfied that there is a reasonable j)rospect of repayment ; and may lend to the tenant for life, although his consent to the loan is required (c). If the settlement requires a bond to be taken from the borrower, the trustees must insist upon a bond being given (d). Of course it is quite clear that where trustees (authorised to invest on personal security) do so merely for the purpose of accommodating the borrower, and not honn fide for the benefit of their beneficiaries, they will be liable for any loss, notwithstanding the authorisation {e) ; and a fortiori is that so where they lend in consideration of a bribe (/). But if the trustees are not merely authorised, but are imperatively directed to invest on certain forms of invest- ment, they are bound to obey the direction, however much they may disai5prove(f/). And also where they are expressly authorised to allow money to remain on an unsatisfactory security for tJic 2^ur2io.se of couroiioiciiin a iiurchascr, they are justified in doing so (//). Again, a trustee must not, in the absence of express autliorit3% invest in trade security ; as, for instance, in the shares of a jjublic company, which are in reality no security at all, but merely documents conferring a right to speculative profits (/). It was on this ground that, before the passing of the Acts of Parliament before referred to, trustees were not entitled to invest even in stock of the Banks of England or Ireland, or in the stock of the old East India Company (/,). (a) See Piclcard v. Anderson (1872), L. R. 13 Eq. 608, sed qucere. (b) See Ee Johnson, Johnson v. Hodge, [1886] W. N. 72. (c) Ee Laincfs SeUlement, Laing v. Endcliffe, [1899] 1 Ch. 593, sed (jucere. {d) Cocker v. Quaylc (1830), 1 Russ. & Myl. 535. (e) Langston v. Ollivant (1807), G. Coop. 33 ; and see Stewart v. Sanderson (1870), L. R. 10 Eq. 26 ; and Francis v. Francis (1854), 5 De G. M. & G. 108. (/) Ee Smith, Smith v. Thomp- son, [1896] 1 Ch. 71. (^f) Cadogan v. Essex {Lord) (1854), 2 Drew. 227 ; Beauclerk V. Ashburnham (1845), 8 Beav. 322. And see now Ee Wedder- bnrn{\81S), 9 Ch. D. 112. (/() Ee Hurst, Addison v. Toj)]) (1890), 63 L. T. 665. ((■) Harris v. Harris (No. 1) (1861), 29 Beav. 107; Cock v. (loodfeUow (1722), 10 Mod. 489. (/i j Hoire Y. Earl of Dartmouth (1802), 7 Ves. 137 ; 1 \Vh. & Tu. Lead. Cas. (8th ed.) 68. Duty of Trustee in Relation to Investments. *27*.» Paragrai'ii (2). ^j.j. 4g It is a mistake to suppose that a trustee is alwolulely safeguarded if he invests trust funds in some of the securities ^leceSiiT*^ authorised by the settlement or by statute. To invest in any protcotwi'by other securities would, of itself, be a breach of trust ; l)ut, even "uu^!ri"ed'' with regard to those which are permissible, he must take sncii ^ocmitics. care as a reasonably cautious man would use, having regard not only to the interests of those who are entitled to the income, but to the interests of those who will take in future. All that the statute, or the express power, does is to shift the onus of proof; so that instead of the trustee having to prove affirmatively that the nivestment was prudent, the l)eneliciary who attacks it has to prove that it was imprudent (/). It is not like a man investing his own money, where his object may be a larger present income than he can get from a safer security. Trustees are bound to preserve the money for those entitled to the corpus in remainder, and they are bound to invest it in such a way as will produce a reasonable income for those enjoying the income for the present ; and, in doing so, they must use such caution as a reasonably prudent man would use with reference to transactions of a similar nature in which he might be engaged (;/;-). Not that this means that a different degree of care is required in regard to the conduct of the business of a trust, according to whether there are persons to take in the future, or whether the trust fund is held in trust for one beneficiary absolutely. The question, in either case, is the due care of the capital sum (n) ; and, in either case, the trustee is not allowed the same discretion in investing the trust fund as if he were a person, sid juris, dealing with his own estate. His duty, rather, is to take such care as an ordinary prudent man would take if he were minded to make an investment for the benefit of other people for whom he felt morally bound to provide : that is, the kind of business " the ordinary prudent man" is suj^posed to be engaged in(r/). Business men of ordinary prudence may, and frequently do, select investments which are more or less of a speculative character ; but it is the duty of a trustee to confine himself not only to the class of investments which are permitted by the settlement or by statute, hilt to avoid all such investments of tluit class as are attended with hazard (2>). il) See per Parker, J., Shaw case when before II. L. ; see V. Gates, 11909] 1 Ch. 389, at sub nom. Leaioi/d v. W hitelei/ p 395 (1887), 12 App. t'as. at p. 732. (m) Per Cotton, L.J., Ee (o) Per Lindlky, L J.. J!e Whiteley, Whiteley v. Learoyd Whiteley, W hiteley v. Leawyd, (1886), 33 Ch. D. at p. 350. supra. («) Per Lord Halsbury, same [p) Per Lord \\ at^on, same 280 The Administration of a Trust. Art. 48. Thus, if any of the securities mentioned in the Trustee Act, ~ 1893 (56 & 57 Vict. c. 53), which are now vevy numerous (as of pennissibie ^^'^J ^® ^^^^ ^J reference to any broker's stock and share list), securities and in some cases yield interest exceeding 4 per cent, on i)e improper current prices, were to become very much depreciated, so as under certain to render them a hazardous investment, the fact that the}^ are stances. made permissible as trust investments by that statute would not, it is conceived, protect a trustee who should invest trust funds upon them. And, a fortiori, would this be the case if he were to make such an investment for the purpose of procuring a larger income for the tenant for life {q). At the same time it must be acknowledged that, save with regard to investments on mortgage, the statutory power is so guarded that it is difficult to foresee any case in which a trustee could be held liable for investing on any of the permitted securities. It is also conceived that a trustee might well be excused for investing in a speculative stock spcciJicaUy authorised by a testator, although he might have been held liable for selecting the same stock out of a class so authorised. Stocks above Formerl}^ it was held that where a non-British government ^^'^'^' stock was above par, and within a few years of redemption at par, it was not a proper investment for trust funds ; because the effect of such an investment might be to benefit the tenant for life at the expense of those in remainder (/■). However, the intention of Parliament, as expressed in the Act of 1893, appears to be to fix a standard of prudence in such cases, viz., that a trustee should not pay more than a premium of fifteen j)er cent, above the redemption price, and that the period of redemjition should l)e at least fifteen years distant at the date of investment. This clause, no doubt, only refers to the investments in sub-ss. (g), (i), (k), (1), and (m) of s. 1, but, a fortiori, a trustee who ajJi^lied the rule to the other per- missible securities would be safe. It may also be mentioned here that, under special circumstances, a change of investment from one which is safe to one which (although permitted) is less safe, for the purpose of affording a larger income to the life tenant, may be proper enough if the trustee acts in good faith : for instance, where property is settled on a parent for life with remainder to his children, and it is very important that the parent should have an increased income for their case (1887), 12 App. Cas. at (190.3), 19 T. L. E. 536). p. 733. But cf. Be Solomon, (?) See Coc/t-fjMm v. PeeZ (1861), Nore V. Meyer, [1912] 1 Ch. 261. 3 De G. F. & J. 170 ; Ungless v. (ry) This even applies to T(/// (1861), 9 W. R. 729 ; TT>/?7e trustees for purposes of the v. Littlewood (1872), 41 L. J. Ch. Settled Land Acts {Re Theobald 636. Duty of Trustee in Relation to Investments. ~^^ better support and education (s). In sach a ease, an imesl- •^^^- ^8. ment in a redeemable stock above par would not merely benefit the tenant for life, but the remaindermen also. Generally it may (it is conceived) be safely laid down that 9''''^°S'"p where trustees act in good faith, and not collusively for the '"^'^■^'"*'^"''^- manifestly sole benefit of the tenant for life, they will not now be held Kable for changing a first class security for one which is authorised by the Act and which pays a better interest (f). Nevertheless, trustees should not invest on mort- ^'"' always , . . , , , , , , justificil in gage wlwrr it ih not reasonable, merely to accommodate one invcstin-ou of their beneficiaries. Still less ought they to do so merely '"*^"Kaye. to accommodate an outsider. Thus they would never be justified in lending a sum of stock (and, a fortiori, they would not be justified in selling it and lending the proceeds) on mort- gage of real estate bearing interest at the same rate as the stock itself. For no possible benefit could accrue to the beneficiaries ; and, on the other hand, the security of the government would be changed for the less reliable security of private property. Consequently, such a transaction would afford the strongest presumption of an intention to accommo- date the mortgagor (n). Indeed it has been said that whenever a trustee varies an investment the onus lies on him of showing that the transaction was proper (x) ; but whether this dictum would now be followed where the statutory power to vary is exercised would seem questionable. Paeagraph (3). As above stated, trustees are not freed from responsibility J^^'^"*'°"* because they invest on authorised securities ; but more observed by especially is this the case when they lend trust funds on [^"4Ton'''° the security of a mortgage. The very simplicity of the mortgage, authority empowering them to invest on " real securities " is apt to mislead, and gives no indication of the severity with which the court regards such loans. In the first place, in the absence of express authority, Fii-st legal A ' ^ 1. • i 1 i- mortgage trustees who desire to invest on mortgage, are restricted to alone first leqal mortgages of land. The mortgage should be a first permissible. (s) Cocl-bum v. Peel (1861), 3 Walker (1890), 62 L. T. 449. De G. F. & J. 170, per TuRKER, {u) Whitney v. Smith (1869), L.J. ; and see Montefiore v. L. K. 4 Ch. at p. 521; and see Guedalla, [1868] AV. N. 87; Be sdso Be Walker, Walker y. M alkcr Ingram's Trust (1863), nW.^. (1890), 62 L. T 449, where 980. trustees Avere held hable for {t) See per Turner, L.J., in varyuig investments without any Cockburn v. Peel (1861), 3 De G. reasonable cause. F. &, J. 170 ; and j^er Kekewich, (x) yorris v. II right (18j1), 14 J., in Be Walker, Walker v. Beav. 291. •282 The Administration of a Trust. Art. 48. JIust not join in a contributory mortgage. J Precautions formerly net-ussary as to ascertain- iii"^ value of l)roperty. mortgage 0/), because otherwise trustees might not have funds available to redeem a prior incumbrancer who might threaten to foreclose. It should be a lc(jal mortgage (a), because the protection afforded by the legal estate prevents any jDrior incumbrancer, of whom the trustees may have no notice, getting priority over them ; and if trustees do invest in a mere equitable mortgage (for instance, a mortgage by way of covenant to surrender copyholds), and any loss accrues, they will, it is apin-ehended (although this has never been expressly decided), be liable to make it good (/>). It would seem, however, that there is no objection to the security being a sub-mortgage, as tlie trustees get the legal estate and in effect the additional security of the covenant of the original mortgagor (c). Unless the settlement expressly authorised a mortgage of leaseholds, trustees could, formerly, only proj)erly advance trust funds on the security of freeholds or copyholds, for the statutes which empowered trustees to invest on mortgage confined them to mortgages of real estate, and leaseholds, however long and however free from rent and covenants, were not real estate {d). However, as above stated (c), s. 5 of the Trustee Act, 1893 (56 & 57 Yict. c. 53), authorises investment on mortgage of certain long leaseholds held at nominal rents. In the second place, the mortgage must not be a contri- butory mortgage, that is, a mortgage where the trustees join with other persons in a joint loan ; for, in that case, the trustees would be putting it out of their power to realise without the joinder of third parties. In other words, they would be entrusting the trust property to i^ersons who were not trustees of it. A contributory mortgage is therefore jyrimd facie a breach of trust (/). In the third place, they must take precautions not to Browne, {y) Norris v. Wright (1851), 14 Beav. 291, and Loclliart v. Reilly (1857),lDeG. &J.464; and dicta in CJicepman v. Browne, [1902] 1 Cli. 785; and see also Worman v. Worman (1889), 43 Ch. D. 296, where it was held that trustees with power to purchase real estate must not purchase an equity of redemption. But see contra, jjer Wright, J., Want v. CamjKiin (1893), 9T. L. R. 254. (a) Swaffield v. Nelson, [1876] AV. N. 255. (b) See Norris v . Wrigh i ( 1 8 5 1 ) , 14 Beav. 291 ; JJrosier v. Brereton (1852), 15 Beav. 221; Lockhartv. Meilbi (1857), 1 l^e G. & J. 464 ; Swaffield v. Nelson supra ; and dicta in Chapman v. [1902] 1 Ch. 785. (c) Smethurst v. Hastings (1885), 30 Ch. D. 490. (d) Leigh v. Leigh (1886), 35 W. R. 121 ; Be Boyd's Settled Estates (1880), 14 Ch. D. 626; but see as to long terms at peppercorn rents. Be Chennell, Jones V. Chennell (1878), 8 Ch. D. 492. (e) Supra, p. 274. (/) Webb V. Jonas (1888), 39 Ch. D. 660 ; Be Massingberd's Settlement, Clark v. Trelawney (1890), 63 L. T. 296; Stokes v. Prance, [ 1898] 1 Ch. 212 ; BeDive, JJivev. Roebuck, 1 1909] 1 Ch. 328. Duty of Trustee in Iielation to Investments. 283 advance too mnch money on the security offered. The law Art. 48. on this point was altered in favour of trustees by s. -4 of the Trustee Act, 1888 (51 & 52 Vict. c. 59) (now repealed, and re-enacted in s. 8 of the Trustee Act, 1893). Before December 21th, 1888, the duty of a trustee who was pro- posing to advance money on mortgage was as follows : He was bound (as he still is) to ascertain the real value of the property, and for that purpose to employ a valuer and solicitor (g) of his own, and not trust to the valuer of the mortgagor (ii) ; and to instruct such valuer that the valuation was required for the purpose of considering the advisability of investing trust funds on the security of the property (?)• For a man may J)0)id fide form his opinion, and yet look at the case in a totally different way Avhen he knows on whose ])ehalf he is acting. Moreover, he was (as he still is) bound to exercise his own judgment in the selection of the valuer, and not leave it to his solicitor (A). In the next place, he was not entitled to advance more than two-thirds of the amount at which the property was valued (l) (and that is still the same) ; and if it were house property, not more than one-half (m) ; and if it were trade property, the value of which depended on the continued prosperity of the trade, it would have been hazardous to advance even so much as that (u). If he did invest on the security of real property used for trade purposes, he was bound to altogether disregard the value of the trade (o). However, these proportions were not inflexibly observed ; and if, when the advance was made, the property was approximately up to the standards above indicated, trustees were not held liable for subsequent deterioration (i?). (q) Waring V. Waring (1852), L. E. 7 Ch. 719; Stretton v. 3 Ir. Ch. Rep. 331. Ashmall (1854), 3 Drew. 9; (h) Fry v. Tayson (1884), 28 8metlmrst v. Hastings (1885), 30 Ch. D. 268 ; Walcott v. Lyons Ch. D. 490 ; SticJcney v. Seioell, (1886), 54 L. T. 786 ; Waring v. supra ; Be Olive, Olive v. Wester- Waring (1852), 3 Ir. Ch. Eep. man (1886), 34 Ch. D. 70. As 331 : Ingle v. Partridge (1865), to cottage property, see Be 34 Beav 411 Salmon, Priest y. Uppleby {\8H9), (i) See per Kat, J., Be Olive, 42 Ch. D. 351 ; but since the Olive V. Westerman (1886), 34 Act of 1888, Be Solomon, yore x. Ch. D. 70. ilf67/er, [1912] ICh. 261 (k) Fry v. Tapson, supra ■ and (n) Stretton v. Ashmall, supra ; see on aU the points. Be Somer- Boyds v. Boyds (1851), 14 Heav. set, Somerset v. Lord Poulett, 54; Walcott y. Lyons {IbSb), ^i [1894] 1 Ch. 231. I^- T. 786. „ /is«7^ (I) Stickney v. Sewell (1835), (o) Learoyd y. ^^h^teley {\88 1), 1 Myl. & Cr. 8; Drosier v. 12 App. Cas. 727. Brereton (1852), 15 Beav. 221; (p) i?" Godfrey (jodfre! f]^ Be Godfrey, Godfrey v. Faidkner Faulkner, supra : Be Oltve, Olive (1883), 23 Ch. D. 483. v. Westerman, supra. (m) Budge v. Gummow (1872), 284 The Administration of a Trust. Alt. 48. Precautions as to value prescribed bv Trustee Act, 1893. Digest of the precautions as to value now to be observed. By s. 8 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), which apphes to all mortgages made since December 24th, 1888, the duty of a trustee under such circumstances is considerably lightened. By that section it is enacted that — "(1) A trustee lending money on the security of any projoerty on which he can lawfully lend shall not be chargeable with breach of trust by reason only of the proportion borne bj^ the amount of the loan to the value of the property at the time when the loan was made, provided that it appears to the court that in making the loan the trustee was acting upon a report as to the value of the property made by a person whom he reasonably believed to be an able practical surveyor or valuer [q) instructed and employed independently of any owner of the propertj', whether such surveyor or valuer carried on business in the locality where the property is situate or elsewhere, and that the amount of the loan does not exceed two equal third parts of the value of the property as stated in the report, and that the loan was made under the advice of the surveyor or valuer expressed in the report." It will be seen, therefore, that the Act makes a very con- siderable alteration in the law ; and it is apprehended that, in future, a trustee (r) advancing trust money on mortgage will be safe if he observes the following particulars, viz. : (1) He must act on the valuation and report of a surveyor or valuer ; not necessarily a local one. (2) He must have reasonable grounds for believing the surveyor or valuer to be an able practical man. For this purpose it is apprehended that the trustee must still exercise his own judgment, and not trust blindly to the nomination of his solicitor without inquiry ; and still less to the solicitor of the mortgagor {s). (3) The surveyor must not be the surveyor of the mortgagor in the matter. He must be instructed and employed independently of the mortgagor {(). Nor must his fee be paid by the mortgagor nor be dependent on the mortgage going through (/(). (4) The surveyor must be instructed by the trustee to make the valuation for him ; and it is apprehended that his instructions should state that the trustee. iq) The words " reasonably believed " do not refer to the words " instructed and em- ployed " [liC Walker, Walker v. Walker (1890), 62 L. T. 449; Me Somerset, Somerset v. Lord Poulett, ri894] 1 Ch. 231. (r) With regard to trustees for purposes of the Settled Land Acts investing on a particular mortgage by the diiection of the tenant for life, the rule is some- what modified. As to this, see Be Hotham, Hotham v. Doughty, [1902] 2 Ch. 575. (s) Per Paekek, J., Shaw v. Caten, [1909] 1 Ch. 389 ; but cf. JRe Solomon, Nore v. 3Ieyer, [1912] 1 Ch. 261. {t) Shaw V. Cates, supra. (m) Marquis of Salisbury v. Keymer (1909), 25 T. L. K. 278 ; Re Dive, Dive v. Roebuck, [1909] 1 Ch. 328 ; Shaw v. Cates, supra. Duty of Trustee in Relation to Investments. 285 requires a valuation J'or the juirpoac of consiilrrhni Art. 48. the advimhiliti/ of iiireHtiii;i trust j)iii(h on the security of the property. (5) The surveyor must not merely value the property, hut must advise the trustee that the j)roperty is a proper investment for the money proposed to he lent ,- and he is not justified in advising an advance of two-thirds of the valuation if, having regard to the speculative nature of the property, such an advance would be hazardous (r). If, however, he does so advise, it has recently been held that the trustee will be safe- guarded if he follows the advice (r). (G) Where the report relates to several properties intended to be comprised in the mortgage it affords no protec- tion, if the trustees only advance a less sum than w'as originally contemplated on some only of the properties (r). (7) The trustee must not lend more than two-thirds of the surveyor's valuation even if the surveyor advises that a greater proi)ortion may be advanced, but he may lend that much, irrespective of the tenure of the property, or the purposes for which it is used. It must, however, be borne in mind that the Act merely statutory says that if the above precautions are taken a trustee shall not oJ^lvTeiate* be liable for breach of trust by reason only of the proportion to value, and borne by the amount of the loan to the value of the property. „ature of the Therefore it has always seemed to the author that a trustee security. would still be liable for advancing the money on property of a speculative character (such as a manufactory), and a fortiori on property of a wasting character (such as a brickfield {tr), or a china clay field (.x-)); not on the ground that he advanced too large a sum (//), but that he ought not to have advanced trust money on such a security at all (~ ). But the dicta of PAiiKHr., J., in SltaivY. Gates {v), and the decision of Warrington, J., in He Solomon, Nore v. Meyer (r), certainly appear to be inconsistent with this view as to property of a merely speeidatire character. {v) Be Solomon, Nore v. Meyer, Walker, Walker v. Walker (1890), [1912] 1 Cli. 261, and see judg- 62 L. T. 449; and see par- ment of Parker, J., 8haw v. ticularly Shaw v. Cates, supra, Gates, [1909] 1 Cli. 389. where the matter was elaborately (w) Learoyd v. Whiteley ( 1887), discussed by Parkkk. J. : an'•-• ""' t" years (d); for they would therel)y fetter themselves in the [ong'^pc-riTH]! event of it being desirable (by reason of depreciation of Uu; bind or otherwise) to realise. Art. 49. — Dutij of Trustee to see thd he paiis Trust Moneys to the Right Persons. (1) The responsibility of handing the trust property to the persons entitled, formerly fell upon the trustee ; mistake (e) or fraud was no excuse. The court has now power to excuse such a mistake made honestly and reasonably (f) ; but, nevertheless, in cases of doubt the trustee should apply to the court for its direction (g). (2) If, however, the person who is really entitled to trust property is not the beneficiary who appears on the face of the settlement (but some one who claims through him), and the trustees, having neither express nor con- structive notice of such derivative title, pay upon the footing of the original title, they cannot be made to pay over again [li] . (3) On the other hand, if they have notice of the deri- vative title they cannot refuse to pay to the person entitled under it, on the ground that such title has been (c) Per Parker, J., Shaw v. (g) Talbot v. Earl Radnor Gates, [1909] 1 Ch. 389, at p. 408 ; (1834), 3 Myl. &c K. 252 ; Merlin but cf. Be Solomon, Nore v. Meyer, v. Blagrave ( 1858), 25 Beav. 125 ; [1912] 1 Ch. 261. Ashhy v. Blackivell (1765), 2 (d) Vicery Y. Evans {1SQ3), 33 Eden, 302; Eaves v. Ilickson Beav. 376. (1861), 30 Beav. 136; Sporle v. (e) Be Hulkes, Powell V. Hulkes Btirnaby (1864), 10 Jur. (N. S.) (1886), 33 Ch. D. 552; as to 1142. fraud, see Be Bennison, Cutler v. (h) Cothay v. Sydenham (1188), Boyd (1889), 60 L. T. 859. See 2 Bro. C. C. 391 ; Leslie v. comments on this rule, p. 267, Baillie (1843), 2 Y. & Coll. C. C. supra. 91; Be Lord Southampton's Estate, (/) Judicial Trustees Act, 1896 Allen v. Lord Southampton ( 1880), (59 & 60 Vict. 0. 35), s. 3, as to 16 Ch. I). 178. which see infra, Art. 90. 288 Alt. 49. The Administration of a Trust. improperly obtained and is liable to be set aside (i), unless it is on the face of it prima facie voidable, or is an appointment under a power in the trust instru- ment which they suspect is a fraud on the power. Forged authority, False certiticato. Honest and reasonable mistake. Mistake as to construction of settlement. Paragraph (1). Where a trustee made a payment to one who produced a forged authority from the beneficiary, the trustee and not the beneficiary had to bear the loss. For, as was said by Lord NoRTHiNGTON (A'), " a trustee, whether he be a private person or a body corporate, must see to the reality of the authority empowering him to dispose of the trust money ; for if the transfer is made without the authority of the owner, the act is a nullit3\" So, again, trustees who paid over the trust fund to wrong persons, upon the faith of a forged marriage certificate, were made responsible for so much of the trust fund as could not be recovered from those who had wrongfully received it (/). The question whether an honest and reasonable mistake as to the nature of a forged document, or as to the construc- tion of an ol)Scure one, would now be excused under the Judicial Trustees Act, 1896 (59 & 60 Vict. c. 35), is discussed infra, Art. 90. A trustee who, by mistake, pays the capital to the tenant for life, instead of investing it and paying him the income only, will in general have to make good the loss to the estate ; although he will, as will be seen hereafter, be entitled to be recouped out of the life estate (m). And similarly, trustees who have distributed a trust fund upon what turns out to l)e an erroneous, although bond Jide, construction of the trust instrument have always been held liable to refund the pro- perty distributed, together with interest thereon at four (probal)ly now three) per cent. (») ; and this notwithstanding that they have acted under the ad\T[ce of counsel (o). (0 Bevey v. Thornton (1851), 9 Hare, at p. 231. {h) Ashbfi V. Blaclcwell (1765), 2 Eden 302 ; but see Be Smith, Smith V. Thompson (1902), 71 L. J. Ch. 411. (I) Eaves V. Hickson (1861), 30 Beav. 136 ; and see also Bostock V. Florjer(lH65),h. R. 1 Eq. 26, and Sutton v. Wilders (1871), L. R. 12 Eq. 373. (m,) Barrutt v. Wyatt (1862), 30 Beav. 442 ; Davies v. Hodgson (1858), 25 Beav. 177; Griffiths V. Forter (1858), 25 Beav. 236. (n) Eilliard v. Fulford (1876), 4 Ch. D. 389 ; and see also Be Ward, Bemment v. Balls (1878), 47 L. J. Cli. 781 ; and Be Hulkes, Powell V. Jlulkes (1886), 33 Ch. D. 552. (o) See National Trustees Co. of Australasia v. General Finance Go. of Australasia, [1905] A. C. 373. ■ Trustee to Pay Trust Moneys to Eight Persons. 280 Formerly, a trustee who paid trust money to the attorney Art. 49. of a beneficiary was liable, if it turned out that the power — was revoked by death of the beneficiary or otherwise. powiTr^o?"'^*^'^ However, by s. 23 of the Trustee Act, 1893 (56 & 57 Viet, attorney, c. 53) (re-enacting 22 & 23 Vict. c. 35, s. 26), it was enacted that — " A trustee acting or paying money in good faith under or in pursuance of any power of attorney shall not be liable for any such act or payment by reason of the fact that at the time of the payment or act the person who gave the power of attorney was dead or had done some act to avoid the power, if this fact was not known to the trustee at the time of his so acting or paying. Provided that nothing in this section shall affect the right of any person entitled to the money against the person to whom the payment is made, and that the person so entitled shall have the same remedy against the person to whom the payment is made as he would have bad against the trustee." Parageaph (2). In Leslie v, Baillie (p), a testator who died, and whose will Not bound was proved in England, bequeathed a legacy to a married [jg^^J^^')'^."^ woman whose domicile, as well as that of her husband, was in utie. Scotland. The husband died a few months after the testator. After his decease, the executors of the testator paid the legacy to the widow. It was proved that, according to the Scotch law, the payment should have been made to the husband's personal representatives. It was, however, held that, in the absence of proof that the executors of the settlor knew the Scotch law on the subject, the payment to the widow was a good payment. So where a solicitor for A. receives, and according to A.'s directions disposes of, the proceeds of property, without notice that in reality A. has settled the property, he is not liable to the beneficiaries (q). Trustees are not bound to hand over the trust fund to the Disputes 1 * DC I wocn mortgagee of their beneficiary, where accounts are pendmg i^^nggcial between the mortgagee and m_orfcgagor (r). claimants. On the other hand, a new trustee is liable to make good Eff'^^areinng moneys paid by him bond fide to a beneficiary, if the papers j,,^ ;,^;j^.gg relating to the trust comprise a notice of an incumbiauce '^^^■ created by that beneficiary depriving him of the right to ip) (1843), 2 Y. & CoU. C. C. (1881), 17 Ch. D. 437. 917 and see also Be ChdVs {r) Hockey v. Western, [1898] Trusts (1875), L. R. 20 Eq. 561. 1 Ch. 350. iq) Williams v. Williams T. U 290 The Administration of a Trust. Art. 49. Trustee not entitled to the deed of assignment. Question whether trustee bound to investigate where he merely suspects mala fides by assignee of beneficiarj-. receive the money (s) ; and so is a trustee who dispenses with an investip;ation of the title of an alleged assign whose title is in fact bad {t). And this is none the less so if the alleged assign is the trustee's own solicitor (0 ; for if the trustee had acquainted himself, as he was bound to do, with the trust documents and papers, he would have found what the true state of the case was (s). Where, however, no amount of search would have disclosed the notice, the trustee would of course not be liable, as his liability entirely depends upon his shirking the duty of search, which the law casts upon him (s). Where a person claims as the assign of a cestui que trust, it might be thought that the trustee would, on payment be entitled to the custody of the deed of assignment as evidence of authority for paying the assign. But this is not so (u), although it would seem that he is entitled to the statutory acknowledgment for production and undertaking for safe custody (w), and he would be wise also to take an attested copy. As SwiNFEN Eady, J., said in Re Palmer, Lancashire and Yorkshire Reversionarii Interest Co. v. Burke {u), "Where money is paid by a trustee to a i^erson who receives it under a power of attorney, the trustee cannot claim that the power of attorney should be given up to him. It was said that the trustee would be in a very unfortunate position if an action were brought against him for the fund, and he had not the deeds ; but it might equally be said that the company (the assigns) would be in a very unfortunate position if they handed over the deeds and the assignor disputed the assign- ment and brought an action against the company to set it aside." Paragkaph (3). The question of how far a trustee can refuse to pay an assign where he suspects unfair dealing, is by no means easy. It appears to be well settled, that, where his beneficiary is dead, he cannot refuse to pay his personal representative on (s) Hallows V. Lloyd (1888), 39 Ch. D. 686. This is so even where the trustees have a dis- cretion to pay the income to or for the benefit of the assignor, " his wife or children," if they do in fact pay it to the assignor : Be Xeil, Hemming v. Neil (1890), 62 L. T. 649 ; Lord v. Bunn (1843), 2 Y. & CoU. C. C. 98. See also Burrowes v. Lock (1805), 10 Ves. 470, and Be Coleman, Henry v. Strong (1888), 39 Ch. D. 443. {t) Davis V. Hutchings, [1907] 1 Ch. 356. (m) Be Palmer, Lancashire and Yorkshire Beversionary Interest Co. V. Burke, [1907] 1 Ch. 486. Trustee to Pay Trust Moneys to Right Persons. 291 the ground that he obtained probate or administration un- Ait. 49. fairly (x). It is for other persons interested to take action in such a case, and not the trustee. The same principle also seems to apply to an assignment inter vivos. It is not for the trustee to question its validity if the assignor does not do so. If the deed is not a forgery, it stands good until it is cancelled by the court, and it cannot be cancelled by the court at the instance of the trustee (.r). This class of cases would, it would seem, cover assignments and mortgages by reversioners where the trustee may suspect unfair dealing or oppression. But the problem becomes much more difficult when we I'.dund to approach transactions which are either (1) ijriiiid facie invalid, 'Y'^'*"^''*^*^ or (2) appointments in the exercise of powers contained in the instrument is trust instrument. jn-imu/acie ^ • luvalid. (1) With regard to mstruments priuta facie invalid, one may take, as typical, an assignment, whether voluntary or for value, by a beneficiary (especially a female or youthful one) to one of the trustees. It is apprehended that in such a case the other trustees would not only be justified, but bound, to refuse payment to their co-trustee without an order of the court ; for res ipsa loquitur, and the deed, on the face of it, cannot be supported without some outside evidence that the parties were at arms' length, and that no unfair advantage was taken by the assign. Anyhow, it is scarcely open to doubt that in such a case the co-trustee would be justified in issuing an originating summons for the direction of the court. (2) Where the trustee has reasonable ground for suspicion where that an appointment is a fraud on a power in the trust g|,spe*Jisa instrument, he certainly ought not to pay without the fraud .ma direction of the court. For, as pointed out by Farwell, L.J., f'°^'^'"" in Cloutte v. Storey {ij), an appointee can only claim an equitable right if the appointment is valid. If it is not valid, it passes nothing, and the property remains the property of the person who takes in default of appointment. It is therefore the duty of a trustee to satisfy himself that an alleged appointment is valid before acting on it ; and if ix) Devey v. Thornton (1851), p. 1742; and see also //o/)/.jh« v. 9 Hare, at p. 226. Myall (1830), 2 Rus.s \ Myl iy) [1911] 1 Cli. 18, at pp. 32 86 ; Cocker v. Quoyh ( lh3 >). 1 and 33 ; 3iad see Duhe of Portland Russ. & Myl. o3o ; h
    remain other rule would be productive of the greatest inconvenience (//). iu custoiy of But it seems that the rule is different with regard to bonds ^o-trustee. payable to bearer {£). Apart from other reasons, the trust money cannot be Must \^ joint advanced to one of the trustees on mortgage, however good the '"'^'■^^^"Kecs. security may seem. For he cannot act both as mortgagor and mortgagee ; and without his joinder in the latter capacity, his co-trustees cannot legally act («). Moreover, if the security were taken in the joint names of all the trustees, the covenants for payment of principal and interest, if made by the mort- gagor with himself and the other trustees, would be void (6), and if they were made with the other trustees alone, the debt would be divorced from the security. It is apprehended that the same incapacity attaches where he is mortgagor as trustee of another settlement, and not merely on his own account. Art. 52. — T)ut\j of Trustee not to set up Jus Tertii. A trustee, who has acknowledged himself as such, must not set up, or aid, the adverse title of a third party against his beneficiary (c). But (semhle) he has a right to have the direction of the court as to whether he should resist it(^/); and if with notice of (u) enough V. Bond (1838), 3 Francis (1854), 5 De G. M. & G. Myl. & Cr. 490; Trutch v. 108 ; Fletcher x. Green (\S64), :i3 Lamyrell (1855), 20 Beav. 116. Beav. 426. ix) Barnard v. Bagshaw (b) Ellis y. Ken\ [1910] I U\ (1862), 3 De G. J. & S. 355. 529 ; Najyier v. Williams, [1911] (y) Per Wood, V.-C, Cottnm 1 Ch. 361. ,,ox^,^ y. Eastern Counties Bail. Co. (c) Neivsomey. Floicers(lHb\), (1860), 1 Johns. & H. 243; Be .30 Beav. 461 ; Deveyy. Thornton Sisson's Trusts, Jonesy.Trappes, (1851), 9 Hare, 222. _ 1 1903] 1 Ch. 262. ^ <^^^J''i' ^\^%''' i^-i" \Jr (z) Lewis V. Nobbs (1878), 8 De G. M & G. 2o8, per Q^ J) 591 Wood, V.-C, and Turner, L..T. (a) 'Stichney v. Sewell (1835), (Knight-Bruce, L.J., dissen- 1 Myl. & Cr. 8 ; Francis v. tiente). 310 The Administration of a Trust. Art. 52. Chapel trustees joining seceders. Must not contest the title of their beneficiaries. They may appeal to court to relieve them of the trust. it he continues to pay his beneficiaries, he will do so at his peril (e). In Xeicsome v. Flowers, supra, a chapel was vested in trustees, in trust for Particular Bajjtists. Subsequently a schism took place, and part of the congregation seceded, and went to another chapel. Still later, the survi\ang trustees were induced (not knowing the real object) to ajjpoint new trustees, and vest the property in them. Immediately after- wards, the new trustees — who were in fact attached to the seceding congregation — brought an action to obtain possession of the chapel. Their apiDointment was, however, set aside, and it was held that they could not raise the adverse claims of the seceders as a defence against the congregation of the chapel, who were their beneficiaries. Nor, however honestly trustees may believe that the trust property belongs of right to a third party, are they justified in refusing to perform the trust they have once undertaken, or in communicating with such other person on the subject ; but they must assume the validity of the title of their beneficiaries until it be negatived (/). The above cases show that trustees are not justified in taking an actively hostile attitude towards the validity of their trust. The case, however, is by no means so simple where they have received notice of a paramount claim, and of the intention of the notifying party to hold them responsible if they deal with the fund in a manner contrary to such claim. So far as the present writer knows, the only authority as to whether, in face of such notice, the trustees are bound to go on steadily executing the trust which they have undertaken, or whether they can apply to the court for relief, is the case of Xeale v. Daries ((/), where the Lords Justices Knight-Bruce and Tuenek difi'ered on the point. In the court below Yice-Chancellor Wood and in the Court of AjDpeal Lord Justice Turner held that the trustees were entitled to refuse to execute the trust under such circumstances, and had a right to come to the court for its direction. Knight-Bruce, L.J., however, energetically dis- sented, saying : "I am of opinion that it is not competent in law, equity, or honesty, for men so to act. I am of opinion that if, by paying the fund to their ccstitis que trusts they would make themselves personally liable to the adverse claimant in the event of his being successful, they were and Pugh (1859), 26 (e) Wright v. Chard (Xo. 1) (1859), 4 Drew. 673, affirmed (1860) 29 L. J. Ch. 415. (/) Beddoes v Beav. 407. (g) (1854) 5 De G. M. & G. 258. Duty of Tkustee not to set up Jus Tertii. 311 are bound to perform the trust which they undertook " (/<). Art. 52. This counsel of fiduciary perfection would indeed place trustees — between the devil and the deep sea, and cannot, it is huiublv "/'".'^'''P conceived, be correct. For a trustee is always entitled to act principle under the direction of the court when he is placed in a position by'^KsnuiT- of difficulty or danger — even for instance where his own Uhuck, l.j. interests so conflict with those of his beneficiaries as to expose his conduct to suspicion. What essential difference can there be between the case where a trustee seeks the direction of the court as to whether he should defend an action for tort caused by trust premises falling and injuring a third party, and the case where a third party brings an action of ejectment against the trustee in respect of part of the trust property \> It is therefore conceived that the rule as enunciated in the article is correct. It is certainly in accordance with modern practice, and is probably justified by Order 55, r. 3 (g), of the Eules of the Supreme Court. This view is to some extent borne out by the case of Example Wright v. Chard (No. 1) (i), where a trustee, who was also reasorlable committee of the estate of a lunatic third party, took upon view, himself to decide a question of title in favour of the trust. After the lunatic's death his personal representative sued the trustee for the rents of the land in question, and obtained judgment in his favour. The point, of course, did not directly arise as to what the trustee ought to have done to protect himself ; but in the course of his judgment Turner, L.J., said : " he took on himself to decide the question to which title preference should be given ; he decided wrongly, and how can his erroneous decision alter the rights of the parties as they stood at the time? He ivas wrong in taking upon himself to decide it : he clearly liad no right to do so, and lie must abide, the consequences." Art. 58. — Duty of Trustee to act gratuitously. A trustee has no right to charge for his time and trouble {k) except — [h) Neale v. Davies (1854), 5 affirmed (1860)29 L. J. Cli. 415. De G. M. & G. 258; see also (A:) Bobinson v. Peft {M'M), 3 Neligan v. Boche (1813), Ir. Reps. P. Wins. 249, 2 Wli. .V I ii. Loa). (l) Fox y. Mackreth (1788), 2 10 Ves. 423 ; Coles \. Trecolhick Bro. C. C. 400, 2 Wh. & Tu. (1804), 9 Ves. 234. The Administration of a Trust. Art. 54. Must not get lease renewed to himself. Father of infant remainder- men cannot purchase from mort- gagee for himself. Commission paid to trustee by (a) that he and the beneficiaries were at arm's length, and that no confidence was rejDosed in him ; (L) that the transaction was for the advantage of the beneficiaries ; and (c) that full information was given to the bene- ficiaries of the vahie of the property, of the natm'e of their interest therein, and of the circmiistances of the transaction (r). (4) A trustee cannot qualify himself to become a purchaser by retiring from a trusteeship with that view (.s). Paragraph (1). Thus, a trustee must not acfcivel}' import trust moneys into liis trade or business, or use them in speculations of his own. If he does so (as has been said before) he will be a construc- tive trustee of the profits ; and if there be no profits he will be liable for the breach of trust, and will have to pay compound interest at five per cent., as will be seen hereafter (t). Where, however, there has been no active breach of trust, but only an omission on the part of a trustee, in whose business the settlor had money invested, to settle up the accounts and properly invest the balance, such an omission will not make him liable to account for the profits (m). On similar principles, a trustee of leaseholds cannot use his position for the purpose of getting a new lease granted to himself on the expiration of the term of which he is trustee (x). This question has been fully discussed under Article 31, ante, and need not be further enlarged upon here. In like manner the father of infants entitled in remainder to an equity of redemption, cannot purchase the prof>erty for himself from the mortgagee selling under his power of sale (i/). Where the solicitors in an administration action presented their client, the trustee, with half their profit costs. North, J. (while holding that in the administration action he had no jurisdiction in the matter), intimated that if a separate action (r) See CMllingworth v. Cham- L. R. 7 H. L. 318. bers, [1896] 1 Cli. 685. (s) Ex j)arte James (1803), 8 Ves. 337 ; Spring v. P>tde (1864), 4 De G. J. & S. 395. But cf. Be Boles and British Land C'o.'s Contract, [1902] 1 Ch. 244. (0 Infra, Art. 84 ; Phayre v. Feree (1815), 3 Dow, 116. (u) Vyse V. Foster (1874), (x) Keech v. Sandford (1726), Sel. Cas. Ch. 61 ; Bennett v. Gaslight and Coke Co. (1882), 52 L. J. Ch. 98 ; Re Lord Ranelagh's Will (1884), 26 Ch. D. 590 ; and Be Fmlham, Brinton v. Liilham (1885), 53 L. T. 9. iy) Grifith v. Owen, [1907] 1 Ch. 195. Trustee not to Traffic with Trust Property. 817 were brought against the trustee by the beneficiaries to make Ait. 54. him hand over the sum so received, he would have no defence (z). The illicit sharing of such profits does not, ?mpi'.'ye.i in however, make the trustee hable for the agent's fraud (^0- Of ^-^'c'rum course, a bribe paid to the trustee, to induce hirn to lease or S(;ll ** ^^' the trust property, altogether invalidates the transaction {!>). Where trust moneys were lent on mortgage, and the Accretion to mortgagor, being a person of eccentric character, devised the C8"ate*^b l equity of redemption to "the mortgagee," it was held that, toirust. although the mortgagor did not know that the mortgagee was a trustee, yet, as the devise was made to him as mortgagee, and as it was the trust which caused him to occupy that position, the devise of the equity of redemption belonged to the trust, and not to the trustee beneficially (e). Lord Eldon once directed an inquiry whether the right of ^'"-^^ not sporting over the trust property could be let for the benefit of tn^t cstaiie. the beneficiaries, and, if not, he thought that the game should belong to the heir of the settlor. The trustee might appoint a gamekeeper, if necessary, for the preservation of the game, but must not keep an establishment of mere pleasure for his own enjoyment (d). It is sometimes a question of difficulty to determine whether Rule does the rule applies to indirect gains. Speaking generally, the rule [jj^rect "^ does not apply where a trustee remotely, and only incidentally, !,':»'"«• profits by his connection with the trust; as, for instance, where a trustee who is a solicitor lends trust moneys on mortgage to one of his own clients, and thereby obtains a fee from the latter for preparing the security (e). On the other hand, it has been held that an advance made by a trustee to one of his beneficiaries under a power of advancement, made in order to enahle that beneficiary to repay a debt due from him to the trustee, was a breach of trust, for his personal interest and fiduciary duty were conflicting (/). But where there is no such stipulation it would be otherwise (r/). {z) Be Thorpe, Vipont v. Bad- Flynn v. Dalgleish, [1901] I It. R. cliffe, [1891] 2 Ch. 360 ; and see 255. r c-l ^ u Be Smith, Smith v. Thompson, (d) Webb r. Earl of Shaftesbury [1896] 1 Ch. 71. For further (1802), 7 Ves. 480. examples of profits made by (e) Whitney v. Smith (l8bJ), fiduciary persons the reader is L. R. 4 Ch. 513; and _see also referred to p. 97 et sea., and Butler y. Butler {18 i i), i(-n.lK V. \15 et seq., supra. 116. But cf. ^^ for^eZ/w, {a) Shepherd v. Harris, [1905] Laivton v. Elwes (1887), .34 Lli. i'. 2 Ch. 310. 675. t., , ;^ {b) Chandler v. Bradley, (/) Molyneux v. ^''f*'"«^» [1897] 1 Ch. 315. [1898] 1 Q. B. 648 : Beylon v (c) Be Bayne's Settlement, Bobinson (1823), 1 1^. ■'• (<>• ■) Kibble v. Bayne (1886), 54 L. T. Ch. 191. 840. Bnt see Be BagnalVs Trusts, {g) ButUr v. Butler, supra. 318 The Administration of a Trust. Art. 54. Trustee occupying office of profit in arml purchuniiig. Paragraph (8). But although a trustee is incapable of purchasing from May pmcimM: himself or his colleagues, there is no fixed and arbitrary rule i^„cfioiory. that he cannot, under any circumstances, purchase the interests of his beneficiaries from the beneficiaries themselves. Thus, a sale by the beneficiaries to a trustee was upheld where (e) 8uUon v. Jones (1809), 15 Ves. 381. But. of J^e Jiohs ami Yes 584 British Land Co. s ( oulrad. (f) Stacey y. Elpli (1833), 1 [1902] 1 Cli. 244. Myl. & K. 195. {M ^/'<'/^'^.'/ ^'^ ^^'^■'''''^ ( ^^ ' ^'>' {g) Ex farte Bennett (1805), 10 2 Ch. D. 190. Y 32'2 The Administration op a TkusT. Art. 54. ^lortgage by beneficiary to trustee. I'urchase by sulicitor from client. Purchase by person occupying a position of confidence towards vendor. The rule does not apiily to certain constructive trustees. a beneficiary took the whole management of a sale upon himself, and then agreed to sell a lot, which he had bought in, to one of the trustees (/). Yet the court regards such transactions with great jealousy ; and, if impeached, they cannot stand unless the trustee can affirmatively and clearly show that the parties were completely at arm's length in making the bargain, that the bargain was a beneficial one to the ccstuis que trusts, and that the trustee candidly disclosed all facts known to him which could in any way influence the vendors {j). A trustee may take a fair mortgage from his beneficiary ; and, in that case, may rely on his i30ssession of the legal estate, as giving him priority over prior mortgagees of whose claims he had no notice when he made the advance (A). So, where a client w^as very desirous of selling property, and, after vainly endeavouring to do so, finally sold it to his solicitor (who was, of course, a constructive trustee), and it was proved that the transaction was fair and the price adequate, and indeed more than could have been obtained elsewhere at the time, and the client quite understood his position, it was held that such a sale was good and binding, although it lay upon the solicitor to prove that it was unim- peachable (/). A solicitor purchasing from his client should, however, always make him employ a separate solicitor (m). The rule equally apjDlies where the solicitor purchases, not directly from the client, but from the latter's trustee in bankruptcy (n). The rule applies even where the party from whom advice is sought is not a professional adviser ; for the fact that he accepts the position of adviser places him in a fiduciary position towards the party seeking advice (o). The rule as to the extreme fairness to be observed by trustees in purchasing from beneficiaries does not apply to persons who are only constructive trustees by virtue of some business contract entered into with the so-called beneficiaries. (i) Coles V. TrecoiUclc (1804), 9 Ves. 234 ; and Clarice v. Swaile (1762), 2 Eden, 134. ij) See per Lord Cairns in Thomson v. Eastivood (1877), 2 App. Cas. 215, 236 ; Williams v. Scott, [1900] A. C. 499 ; Dougan V. Macpherson, [1902] A. C. 197, where tlie trustee had had a valuation made for liimself which he did not communicate to the beneficiary. {k) Newman v. Newman (1885), 28 Ch. V>. 674. (/) Spencer v. Topham (1856). 22 Beav. 573 ; 2 Jur. (n. s.) 865 ; Gibson v. J eyes (1801), 6 Ves. 266 ; Johnson v. Fesemayer, ( 1858), 3 De G. & J. 13 ; Edwards V. 3Ieyricl- (1842), 2 Hare, 60. (m) Coclihurn v. Edwards (1881), 18 Ch. D. 449. {n) Liiddy's Trustee v. Peard (1886), 33 Ch. D. 500; and see also Barron v. Willis, [1900] 2 Ch. 121 (affirmed (sub. nom. Willis V. Barron) [1902] A. C. 271). But this seems rather absurd. (o) T'ate V. Williamson (1866), L. R. 2 Ch. 55. Teustee not to Traffic with Trust Property. 323 Thus mortgagees can purchase from their mortgagors ( p) ; Art. 54. a second mortgagee from the first, selUng under his power of """ sale (q) ; partners from the representatives of a deceased partner (r); one tenant in common from the mortgagee of the entirety, or of the share of a co-tenant (.s) ; and other persons bearing analogous relations enjoy a similar freedom ; for though contracting parties may by a metaphor be said to be trustees for each other, the trust is strictly limited l)y the contract. They are trustees only to the extent of their obliga- tion to perform that contract, and the trust is limited to the discharge of that obligation (t). Art. 55. — Dutij of Trustee to he ready ivith his Accounts. (1) A trustee must — (a) keep clear and accurate accounts of the trust property (u) ; and (b) at all reasonable times, at the request of a beneficiary, give him full and accurate in- formation as to the amount and state of the trust property (v), and permit him or his solicitor (w) to inspect the accounts and vouchers, and other documents relating to the trust (x). But a trustee is under no obhgation to tell his beneficiary (and still less any third person) what notices he has received of dealings with that beneficiary's equitable interest (//). iv) KniqJit V. Majoribanks (1860), 2 (Jrin. 521 ; Burroivs v. (1849), 2 Mac. & G. 10. Walls (1855), 5 De G. M & G. (a) Shaw v. Bunny (1855), 2 233; Sewton v. Askew (1848), De4. J. &S. 468; Kirkwoodv. 11 Beav. 145, 152; Fearse v. Thompson (1865), 2 Hem. & M. Green (1819), 1 Jac. & \\ . 13o. 392 (affirmed (1865), 2 De G. J. (v) ^e TMt, Lee y. II i^on ^^f{^'^) nS22} I Ch. S6 ; Be I'agc, Jones ^ t;) Chambers v. Howell (1847), v. 3/. r^an[ 189 3 J 1 ^^^^^04, 3U9 ; 1 1 Rpflv 6 Talbot V. Marshjield (1868), L. K. if) Kennedy v. De Trafford, 3 Ch. 622; Ryder x. Birkerion [1897] A. C. 180. (1743), 3 Swaue. 80, n. m See per Westbury, L.C, M h.emp v. Burn (1863). 4 MR TSarl of Egmont v. Smith (1886), 33 Ch D. l'^^^^^'^^^ ^• n877), 6 Ch. I). 469; and Gilby {ISio), SBe^y. 602. Betjemann v. Betjemann, [1895] JV) ^^'^^ ^'^''"''' ^^^^^^ ^ 2 Ch. 474. ^^- ^^ P- ^^• (tt) Springett v. Dashwood Y 2 324 The Admixtstration of a Trust. Art. 55. (2) A trustee is, nevertheless, not bound to supply copies of accounts or trust documents (~), or to supply information which necessitates expenditure (a), except at the cost of the beneficiary requiring the same. Pakagraph (1). Failure The estate of a testator who died in 1832 was distributed in ac^uiit'? 1847, as the evidence showed, at the written request of the persons beneficially entitled. Another part of the estate, which tell in in 1852, was distributed, also at the request of the beneficiaries, and in 1871 the acting trustee died. No accounts or vouchers were forthcoming from the trustees. A bill tiled in 1872 by one of the beneficiaries against the sur- vi\'ing trustee for administration was dismissed ; l)ut owing to the breach of duty committed by the trustees in not keeping accounts and vouchers, the surviving trustee had to bear his own costs (//). If, however, the action had been successful, the trustee would in all probability have had to pay the plaintifi:"'s costs as well (<:•) up to the hearing (d). But, as the reason of this is that such costs are caused by the trustee's neglect to keep and furnish accounts, the plaintift" will not in general be entitled to costs against the trustee beyond the time when the account is actually rendered, or ordered by the court to be rendered. From this time, if the accounts are substantially accurate, the trustee will be entitled to his costs out of the estate (^), or, if the plaintiff sues alone, out of his share in the estate (./"). In a recent case, however, it was held that where a trustee b}^ his gross and indefensible neglect to furnish accounts renders an originating summons necessary, he may be ordered to pay all the costs, including the costs of taking and vouching the account (//). It is no defence that the trustees are illiterate and incapable of keeping accounts ; for in that case they would be justified by necessity in employing, and be bound in point of law to employ, a competent agent to keep the accounts for them(//). (z) Oiiley v. Gilby (1845), 8 (d) Springctt v. Dashwood Beav. G02. (1860), 2 Giff. 521 ; Ee Linsley, (a) Ec Bosuorth, MaHin v. Cattley v. West, [1904] 2 Ch. 785. Xfl?n6e(1889), 58L. J. Ch. 432. (e)'Ottley v. Gilby (1845), 8 (b) Fayne v. Evens (1874), Beav. 602. L. 11. 18 Eq. 356 ; and see to (/) Thompson v. Clive (1848), same effect, Ec I'age, Jones v. 11 Beav. 475. Morgan, [1893] 1 Ch. 304. (g) Ee Skinner, Cooper v. (c) Eglin v. Sanderson (1862), Skinner, [1904] 1 Ch. 289. 3 Giff. 434; Newton v. Askew (h) TlVoe v. >S'eed (1863), 4 Giff. (1848), 11 Beav. 145. 425, 429. Trustee to be Ready with his Accounts. 325 Where trustees have rendered no account, or an insufficient Art. 55. one, some judges have ordered the apphcation for an account to stand over, in order that a proper account might be rendered ™'^*^"=*^- and vouched out of court, the costs being reserved (/) ; but it is understood that this practice has not been successful in saving expense, and that it is but rarely followed now (/.:). If the plaintiff has been over-hasty in seeking the assistance of the court, hemay have to pay the costs, or even his solicitor may be ordered to bear them personally (/). The importance of keeping accounts is shown by the fact, inaccurate that although the court will generally saddle with costs a ^^^^""ts. trustee whose only fault is that he has failed to do so, yet where a trustee has kept and furnished accounts, which, by an honest mistake, turn out to be inaccurate, he will be allowed his costs (?«). " A trustee is bound to give his rrstui que tni.st proper Suppiyin) confided to him by the settlement, without interference by the court ; and (b) subject to any restrictions contained in the settlement, and to the provisions of any statute requiring the consent of the court, do such reasonable and proper acts for the realisation or protection of the trust property (r), or the protection, support, or {a) All reference to tlie 2 App. Cas. 300 ; A iistin v. powers of managing infants' Austin (1876), 4 Ch. D. 233 ; estates conferred by s. 42 of thie Tabor v. Brooks (1878), 10 Cli. D. Conveyancing Act, 1881, and 273 ; Be Blake, Jones v. Blake also the powers conferred by the (1885), 29 Ch. D. 913; Lord Settled Land Act on " trustees Gainsborough v. Watcombe Terra for purposes of that Act," Cotta Co. (1885), 54 L. J. Ch. are excluded from this work, 991. because the trustees referred to (c) Ward v. Ward (1843), 2 in those enactments are not H. L. Cas. 777, n. ; Waldo v. ordinary trustees, but rather Waldo (1S35), 1 Sim. 261 ; Bright guardians, or mere donees of v. NoHh (1847), 2 Ph. 216; powers. Bowes v. East London Water Co. (b) GisborncY. Gisborne{\811), (1821), Jac. 324. 328 The Administration of a Trust. Art. 56. reputation of a beneficiary who is incapable of taking care of himself (^/), as the court would sanction if applied to {c) : (2) Provided that he acts honestly (/), and does not benefit one beneficiary at the expense of another (7), and does not interfere with any hr/al beneficial interest. Paragraph (1) (a). Discretionary The leading case of Giahorne v. Gishorne (Ji) is the best powers. example of the right of trustees to exercise a discretion expressly given to them by the settlement. There a testator devised his real and personal estate to trustees upon various trusts, one of which was, that " my said trustees, in their discretion and of their uncontrollable authority, pay and apply the whole, ur such portion only, of the annual income of my real and personal estate as they shall think expedient, to and for the clothing, board, etc., and for the personal and peculiar benefit and comfort, of my dear wdfe." The wife also had propert}' of her own, and was a lunatic, and one of the trustees was the residuary legatee under the testator's will. Under these circumstances, the trustees, hond fide (as the court found), refused to permit the whole income of the trust fund to be applied for the wife's support in the asylum, and j^roposed to allow only so much for that purpose as would be sufficient, after taking into account the income of the wife's own property. The House of Lords, on these facts, held that the trustees had an absolute discretion in the application of the fund, and that so long as they exercised that discretion hond fide, the court could not interfere with them ; although if no such discretion had existed, the court would have ordered the trust fund to have been applied primarily in the support of the lunatic (/). (d) Sisson v. SJiaw (1804), 9 et seq., supra. Ves. 285 ; Maberhj v. Tudon (/) See Be Smith, Smith v. (1808), 14 Yes. 499; Gotham v. Thompson, [1896] 1 Ch. 71. West (1839), 1 Beav. 381; Ex (g) Seagram v. Knight, supra ; paiie Green (1820), 1 Jac. & W. Lee v. Brown, supra ; Wood v. 253 ; Be Uoicaiih (1873), L. R. Patteson (1847), 10 Beav. 541. 8 Ch. 415; iJe WHte v. Palin (h) (1877) 2 App. Cas. 300; (1872), L. R. 14 Eq. 251 ; Swin- and see also Gostabadie v. Gosta- nock V. Grisp (1681), Freem. 78. badie (1847), 6 Hare, 410. (e) Xee V. ^rown (1798), 4 Ves. (i) See also Tabor v. Brooks 362 ; Inwood v. Twijne (1762), 2 (1878), 10 Ch. D. 273 ; Be Loft- Eden, 153; Seagram V. Knight house (1885), 29 Ch. D. 921; (1867), L. R. 2 Ch. 628; Brown Be Gourtier, Goles v. GouHier V. Smith, [1878] W. N. 202. (1886), 34 Ch. D. 136; and as As to what acts the court can to discretionary trust for main- ati'l will sanction, see p. 218 tenance. Be Bryant, Bryant v. General Powers of Trustees. 329 So, too, where absolute discretion has ))een given to trustees Art. 56. to do a particular act {e.g., to sell the trust property), the court cannot compel them to exercise the power; but if they do exercise it, the court will see that they do not exercise it improperly or unreasonably (/,), So where a testator empowered his son to purchase part of Power to sell his estate at a price which " should seem a fair and reasonable *° ^ particular person at a value " to his trustees, the court refused to interfere in the price to be absence of fraud, although the property was valued at the f^Tst^s instance of other interested parties at one-third more than the trustees' valuation (/). Not only will the court refuse to restrain the exercise of Not liable discretionary powers, but it will give no relief to beneficiaries ^°^^^">'^J'(^'^ where the honest exercise of such a power has by error of judj^nnont in judgment led to loss. Thus, where a testator directed the di^^fc^retToifar sale of his residuary estate, with power nevertheless to powers, his trustees to postpone sale so long as they should in their uncontrolled discretion deem proper, the trustees were held to be free from any liability for loss caused by their having ^. honestly retained certain shares for some years in a continually falling market (??«). The practitioner must, however, carefully scrutinise the Discretion words conferring the authority and discretion, and must not i°i^ited"o'^ assume that a discretion as to the Diode of applying a fund for time and a person's benefit gives trustees a discretion as to Jiou- iiutcli of "^^^"^^• the fund is to be so applied. Thus, in Re Weaver {n) the trustees were directed to pay the income of the trust property, at such time and in such manner as the trustees should think fit, towards the maintenance of a lunatic during her life, with power to invest any surplus, not required for the purpose, as capital. The Court of Appeal held, however, that the trustees had only a discretion as to the time and manner of the application, and not as to the amount. Eickley, [1894] 1 Cli. 324 ; Train 34 Ch. D. 136 ; BeBurrage, Burn- V. GlappeHon, [1908] A. C. 342; ingham v. Burrage (1890), 621,. T. and Collins v. Vining (1837), 752 ; Longmore v. Elcuvi (1843), C. P. Cooper, 472. No dis- 2 Y. & CoU. C. C. 363. cretionary powers can be exer- (l) Edmonds v. Ilillett (1855), cised after the trustees have 20 Beav. 54. paid the trust fund into court (m) Be Schneider, Kirhy v. [Be 3Iurfliifs Trust, [1900] 1 Ir. Schneider (1906), 22 T. L. E. R. 145). ' 223. {h) Tempest v. Lord Camoys {n) (1882) 21 Ch. D. 615; Be (1882), 21 Ch. D. 571 ; Marquis Sanderson's Trust (1857), 3 Kay of Camden v. Murray (1880), 16 & J. 497. See also similar Ch. D. 161 ; Be Blake, Jones v. distinctions as to time and mode Blake (1885), 29 Ch. D. 913 ; Be of sale. Be Atkins, Newman v. Courtier, Coles v. Courtier {1886), Sinclair (1899), 81 L. T. 421. 330 TiiF. Administration of a Trust. Art. 56. Implied gifts nf corpus when trusts for main- tenance ended. Powers in the nature of trusts. In the same way the practitioner must carefully distinguish between a discretionary power for maintenance, and an implied gift of the corpus when the period of maintenance has come to an end. Thus, in lie Andrew's Trust, Carter v. Andrew (o), a fund had lieen subscribed by the friends of a deceased clergy- man for the education of his children, and the trust deed declared that the money was not intended for the exclusive use of any one of them in particular nor for equal division among them, but as deemed necessary to defray the expenses of all, and that solely in the matter of education. When all the children had attained twenty-one a portion of the fund remained still unexpended : — Held, that education was merely the motive of the gift, and that, that having been satisfied, the balance of the fund belonged to the children equally. A careful distinction must also be made between true discretionary powers and powers which, although discretionary in form, are really coupled with a duty. For instance, where a testator de\dses real estates to trustees, in trust to manage them during the minority of an infant, with power to lease in their discretion, the trustees will not be allowed to decline to exercise the power of letting. For, as Bowen, L.-J., said in Re Courtier, Coles v. Courtier {p), " one can understand that, where the machinery for management of the estates is given to the trustees, and the court undertakes to enforce the trusts for management, it is right for it to compel the trustees to utilise the machinery entrusted to them." In fact, the court looks at the substance rather than the form ; and where what appears to be a mere discretionary power is, in reality, part of a trust for management, the court will order the trustees to exercise the power {q). Implied di.scretionary powers. PARAGRArn (1) (b). With regard to the principles enunciated in sub-clause (b) the case of Ward v. Ward {r) may be cited. There, by the iunnediate realisation of the trust property, the trustee would have ruined one beneficiary from whom a large debt was due to the trust estate, and would have very seriously prejudiced others. Instead of doing so, the trustee made an arrangement with tlio debtor for payment of the money by instalments ; (o) [1905] 2 Cb. 48. (p) (1S8G) 34 Ch. J). 136. See also lie Hill, Hill v. Filcher, [1896] 1 ("h. 962. (q) Tempest v. Lord Canioys (1882), 21 Ch. 1). ri76,n. ; Xiclcis- son V. Cockill (1803), 3 De G. J. tf ^ c n 9 o (r) ("1843) 2 H. L. C'as. at p. 784. the trust property. General Powers of Trustees. 331 and it was held that he was justified in taking that course, ( Art. 56, because he had exercised a sound discretion, and such as the court would have api^roved. But in all such cases a trustee should apply for the sanction of the court, under Order 55, r. 3. So, again, as was said by Lord Cottenham in Brinht v. Power to do North (s), " Every trustee is entitled to be allowed the reason- ai' necessary , , ' . , . . acts for able and proper expenses incurred m protecting property protecting committed to his care. But if they have a right to protect property from immediate and direct injury, they must have the same right where the injury threatened is indirect but probable " ; and, therefore, his lordship allowed the trustees (who were, in that instance, trustees of public works) the expenses of opposing a bill in Parliament which would have been prejudicial to those works if jjassed. Here again, however, trustees should always be advised to obtain the sanction of the court before incurring such serious expense, either under Order 55, r. 3, or under s. 36 of the Settled Land Act, 1882 (45 & 46 Vict. c. 38). On the same grounds, a trustee whose duty it is to keep power to take property, forming part of the trust estate, in repair, may, "ecess^ary it would seem, retain income for that purpose ; but without keeping prejudice to the ultimate rights of the tenant for life and P^pprty in ■■^ J _ " repair. remainderman into- se(t). On similar grounds, it would seem that a trustee may Power to surrender a policy of assurance forming part of the trust poi,^^"fo'j, ^ property, in exchange for a fully paid up one of less amount, fully" paid up in cases where the party liable to pa_y the premiums cannot ^'"^" possibly do so(»). But of course no sane lawyer would allow a trustee who was his client to do this without the sanction of the court. So, again, in cases where the court would, if applied to. Power to authorise the cutting down of timber which has arrived at ^^"" timber, maturity, and which would only degenerate if allowed to stand, or where it is necessary to cut it for the purpose of thinning it, the trustee may fell it on his own authority (,t). On the same principle, a trustee who has the management of Power to property, may grant a reasonable agricultural or occupation fJasVs.^^'^**"^ (s) (1847) 2 Ph. at p. 220; (1890), 25 L. R. Ir. 544. and see Stott v. 3Iilne (1884), 25 (x) Waldo v. Waldo (1835), 7 Ch. D. 710. Sim. 261 ; and see Seagram v. (t) Be Fowler, Fowler v. Odell KnigU (1867), L. R. 2 Ch. 628 ; (1881), 16 Ch. D. 723; but see but see Illustration, p. 334, supra, p. 252 et seq. infra. {u) Be Steen, Steen v. Peebles 332 The Administration of a Trust. Art. 56. No power to make prob- lematical or speculative improve- ments. Trustee mortgagees releasing part of the security lease 0/), unless expressly or impliedly (^•) restrained from doing so by the settlement. But he may not grant a mining lease of unopened mines, for that would benefit the tenant for life at the expense of the reversioner (a). On the other hand (at all events where there is an express power " to grant leases ") trustees may grant a mining lease of opened mines and join with others in doing so (b). However, where there is a tenant for life, his consent would now be necessary under s. 56 of the Settled Land Act, 1882. On the other hand, trustees must not do acts, however l)eneficial they may possibly be to the property, if they are in their nature unreasonable or pro])lematical. For instance, they ought not to make merely ornamental improve- ments (c), nor to take down a mansion-house for the purpose of rebuilding a better one (d), nor to build a villa for the mere improvement of the estate (c). If, however, they are by the settlement expressly given a power " generally to superintend the management of the estate," it would seem that their powers of management are almost unlimited, so long as they are exercised bond fide (/). Trustees are also empowered with the sanction of the Board of Agriculture and Fisheries to carry out certain specified improvements by the Improve- ment of Land Act, 1864 (27 & 28 Vict. c. il4), s. 24 ; but practically these have been superseded by the corresponding powers given to the tenant for life by the Settled Land Acts. The question not infrequently arises whether trustee mort- gagees can, on sale of part of the mortgaged propert}^ by the mortgagor, release it, without insisting on the whole purchase money being paid to them. It is apprehended that it is purel}' (,?/) Naylor v. Arnitt (1830), 1 Russ. & Myl. 501 ; Bowes v. East London Water Co. (1821), Jac. 324 ; Att.-Oen. v. Owen (180.5), 10 Ves. 555: Fitzpatriclc V. Waring (1882), 11 L. R. Jr. 35. (z) Evans v. Jackson (1836), 8 Sim. 217 ; and see Micholls v. Corhett (1866), 34 Beav. 376. (fl) Wood V. Patteson (1847), 10 Beav. 541 ; J?e Baskerville, Baskerville v. Baskerville, [1910] 2 Ch. 329, followiug dictum of KiNDEHSLEY, V.-C, ill Clegg v. Rowland (1866), L. R. 2 Eq.' 160, 165 ; but cf. Be North, Garton V. Cumberland, [1909] 1 Ch. 625; DaUj v. Beckett (1857), 24 Beav. 114; and Be Barker, Wallis V. Barker (1903), 88 L. T. 685. But this is now provided for on equitable terms by the Settled Land Act, 1882 (45 & 46 Vict. c. 38). {b) Re Baskerville, Baskerville V. Baskerville, suqyra. (c) Bridge v. Brown (1843), 2 Y. & Coll. C. C. 181. (d) Bleazardv. Whalley (IS5 4), 2 Eq. Rep. 1093. (e) Vyse v. Foster (1874), L. R. 7 H. L.'318. (/) Bowes V. Earl of Strathmore (1843), 8 .fiu-. 92; and see also as to powers of building, etc.. Re Leslie (1876), 2 Ch. D. 185 ; and consider principle in Gisborne v. Gisborne (1877), 2 App. Cas. 300. General Powers of Trustees. 333 a question of the value of the rest of the property as a security Art. 56. for the halance of the debt, and that if the margin is sufficient they may do so. With regard to acts for the benefit of the beneficiaries, Power to it was formerly a common practice for trustees of personal ^'^^'^'^ , estate belongnig absolutely to a married woman to pay it womeu's into court, so that the wife might have every facility for f™eiabie^^ enforcing her equity to a settlement (//). But this right has, them to claim it is ai)prehended, ceased in the case of property coming ^etti'emcnr. under the provisions of the Married Women's Property Act, 1882(45 &4G Vict. c. 75). So, trustees might always allow, by way of maintenance, Tower to a competent part of the income of property to the father of 'ieiri^icc'""' an infant beneficiary (/<), where the father could not support infuiits. it according to its position {i), even where there was a trust for accumulation (k), if the circumstances showed that the settlor looked on the infant as his heir (/,) ; and, if the infant were an orphan, maintenance might be allowed to the mother (/;(), or stepfather 0?), whether they could support it or not. And now, as will be seen under Article 61 (infra, p. 348), the powers of trustees in relation to the maintenance of infants are greatly enlarged. It has been also held that a trustee may under special circumstances, as, for instance, where the cajntal is considerably under a thousand pounds (o), allow maintenance out of the capital; but a trustee would be very ill-advised to take upon himself the responsibilit}' of doing so (j)). Upon the same principle, a trustee may aj^ply part of Power to an infant's capital for its advancement in the world (q). ig) Be 8wan (1864), 2 Hem. [1) See Be Alford, Hunt v. & M. 34 ; Be Bendyshe (1857), 3 Parry (1886), 32 Ch. D. 383. Jur. (n. s.) 727. (m) Douglas v. Andrews {h) Sisson v. Shaw (1804), 9 (1849), 12 Beav. 310. Ves. 285 ; Maherly v. Turton (n) BilUngsley v. Critchett (1808), 14 Ves. 499; Gotham y. (1783), 1 Bro. C. C. 268, as West (1839), 1 Beav. 381. affected by 4 «& 5 Will. IV., c. 76, (i) Mamtenance has been s. 57. allowed to a father with an (o) Barlow v. Grant (1684), 1 income of £6,000 a year [Jervoise Vern. 255 ; Ex parte Green (1820) V. Silk (1813), G. Coop. 52; 1 Jac. & W. 253; Be Howarth and see Be Allan, Haveloclc v. (1873), L. E. 8 Ch. 415; De Havelock (1881), 17 Ch. D. 807). Witte v. Palin (1872), L. R. 14 (k) Be Collins, Collins v. Eq. 251. Collins (1886), 32 Ch. D. 229; (p) See Walker v. Wetherell Be Allan, Havelock v. Havelock, (1801), 6 Ves. 473. supra; Be Colgan (1881), 19 (q) Swinnock v. Crisp (1681), Ch. D. 305; Be Thatcher's Fieem. IS ; Boyd v. Boyd (1861), Trusts (1884), 26 Ch. D. 426. L. R. 4 Eq. 305 ; Boper-Curzon iidvimce. 334 Art. 66. Secus where infant only contingenth- entitletl. The Administration of a Trust. But here, again (in the absence of express power), he would be undertaking an unnecessary risk in acting without the sanction of the court. But where, hj making an advancement, the trustee would injure the contingent rights of another beneficiary, he will do it at his peril as against the latter (r). For instance, where i^'lOO was bequeathed upon trust to apply the income towards the maintenance and education of A. during his minority, and upon trust to pay the corj)us to him on attain- ing twenty-one, but in case of his dying before that age, upon trust for X., it was held that, as against X., the trustees had no authority to advance part of the capital to A., who died before attaining his majority (s). No power to interfere with legal remainders. Paragraph (2). For illustrations of the principle that a trustee must not exercise his powers so as to unduly benefit one beneficiary at the expense of others, the reader is referred to Article 43, p. 222, supra. With regard to the principle that the court in general cannot interfere with legal interests, it is apprehended that a trustee for another for life only (the trustee merely taking an estate _^jur autre vie) would not be justified, without the consent of the legal remainderman, in cutting timber which had arrived at maturity. For, not being the trustee for the remainderman, he could not do acts for the benefit of the estate generally which would be in derogation of the hitter's legal rights (f). On the same principle, it would seem that although, where the whole legal estate is vested in trustees, the court can authorise them to mortgage the trust property for the purpose of raising money to carry out necessary repairs («), yet, on the other hand, where the legal estate is not in the trustees, but in an infant tenant for life, the court has no j urisdiction to do so (x). V. Eoper-Curzon (1871), L. R. 11 Eq. 452. (?) Woiihington v. M'Craer (1856), 23 Beav. 81 ; Re Breeds' Will (1875), 1 Ch. D. 226. (s) Lee V. Brown (1798), 4 Ves. 362. (t) Sec and consider Seagram V. Knight (1867), L. R. 2 Ch. 628, and compare it with Waldo V. Waldo (1835), 7 Sim. 261, and Gent V. Harrison (1859), Johns. 517. (ti) Be Jackson, Jackson v. Talbot (1882), 21 Ch. D. 786.. («) Jesse V. Lloyd (1883), 48 L. T. 656. Power to Sell or Mortgage Trust Property. B35 Art. 57. — rower of Trustees to sell or mort(ja(je the Trust Art. 57. Propcrtji. (1) A trustee can neither sell, mortgage, exchange, or partition the trust property, except — (a) under a direction or authority in the settlement itself, which may be either expressed or implied ; or (b) under some statutory authority. (2) Where there is a mere power (as distinguished from an imperative trust) to sell settled land, the trustees cannot during the existence of a life tenancy sell without the consent of the tenant for life {ij). Paragraph (1). Where property, whether real or personal, is vested in Trustees' first trustees in trust for another or for others, either as co-owners pj.eserve*the or successively, their duty is prima, facie to preserve the trust proi^erty in specie for the benefit of all parties interested. not^t*oselHt Therefore, in the absence of any direction or power to the contrary, they must neither sell, exchange, partition, nor mortgage it. Mr. Cyprian Williams, in his work on Vendors and Purchasers (z), says that " To enable trustees to sell Where trust lands (a) without the concurrence of their ccstuis que trusts an gelf'irmust be express power to that effect must be inserted in the instrument exercised creating the trust, or the lands must be vested in them uj^on a conformity special trust for sale. When such powers of, or trusts for, sale with its are created they must be carried out in all respects according to the intention of their creator ; they must not, for examjjle, be exercised before the time at which it has been declared that they shall arise (b). Thus where lands are vested in trustees on trust for one for life, and after his death on trust for sale or on trust for others with power of sale, the trust for or power of sale cannot be validly exercised in the lifetime of the tenant for life — not even with his consent (c) and concurrence, nor by order of the court " {d). (2/) Settled Land Act, 1882 (1846), 8 Beav. 233. (45 & 46 Vict. c. 38), s. 56. (c) Want v. StalUbrass (1873), (z) Page 268. L. R. 8 Ex. 175 ; Ee Bryant and {a) As to partition or exchange, Barninghayn's Contract (1890), see ib., p. 267 ; and II'Queen v. 44 Ch. D. 218 ; Ee Uead's Farquhar (1805), 11 Ves. 467; Trustees and Macdonald (1890), Brassey v. Chalmers (1853), 4 45 Ch. D. 310. De G. M. & G. 528. {d) Want v. StalUbrass, supra. {h) See Johnstone v. Baber 336 The Administration of a Trust. Art. 57. Power to sell, etc.. may be implied. The above observations of Mr. Williams need, however, some qualification, viz., that the power or direction need not be expressed directl}', but may be inferred from other directions which logically import a direction or power to sell, and also that under divers statutes trustees are empowered to sell in particular cases. Speaking generally, however, a trustee can neither sell nor mortgage either trust land or trust chattels except under some power derived from the trust instrument or from some Act of Parliament. Implied powers of sale. Under rule in Howe v. J^ird Dart- mouth. Pakagraph (1) (a). Express trusts and j)owers to sell need no further comment, but implied powers or trusts need some further consideration. Thus, where a testator devised his real and personal estate to his wife " absolutely and at her own disposal for the maintenance of herself and bringing up of my children," Lord Langdale held that although the widow took as trustee for herself and children, yet, as the property was to be held by her " absolutely and at her own disposal " for that purpose, there was an implied power to sell and give a good receipt for the purchase-money {<'). The above case may no doubt be open to the observation that on the true couHtnictioii of the will there was an express power of sale merely badly worded. But the same remark is inapplicable to the case of a trust of residuary prisoual estate settled on persons in succession (including leasehold lands) where (as we have already seen (/')), the trustee is (in the absence of contrary intention) bound to sell such parts of it as are not invested on trust securities. There is an implied direction to do this inferred from the facts (1) that the property is not given specifically and (2) that unless converted and invested on trust securities the value of the corpus would not be preserved. But where specified chattels or leaseholds are made the subject of a trust there is no such implication (/), and an ultimate direction to " divide " the trust property among individuals or a class does not of itself im^jly a power to sell for convenience of division (r/). But where the purposes of a will could not be effected without a conversion of the whole estate, a direction " to pay and divide " was held to imply a trust for sale (/t). (e) Wood V. Bichardson (1840), 4 Beav. 174. (/) Art. 44, p. 228, supra. (gr) Corvcick v. Pearce (1848), 7 Hare, 477 ; Be Wintle, Tucker V. Wintle, [1896] 2 Ch. 711. (j^) 3Iower v. Orr (1849), 7 Hare, 473. Power to Sell or Mortgage Trt'st Property. 337 On the other hand, a power of sale and cxchaur/i' imphedly Art. 57. authorises a partition (i) ; but not a power of sale alone, nor a p y,~^t power of exchange alone (/,). It is conceived, however, that sale and where trustees have both a power to sell and a power to invest authorise ■ in the purchase of real estate, a partition or exchange may be partition, effected by way of cross sales (l). With regard to mortgages, the general rule is, clearly, that in what cases apart from authority in the settlement, trustees have no power po^^er to inc)rt"'a"'e to mortgage or pledge the trust property, however desirable it is impliwl, may he to raise money for the general purposes of the trust. Nor does an express trust to sell impliedly confer on them any power to mortgage — indeed the inference is the other way (in). On the other hand, it would seem that a mere power to sell may impliedly authorise a mortgage, instead of a sale, if the power to sell is merely for the purpose of raising a sum of money charged on the property (?^). In Be Bellinger, Durell v. Bellinger (o), Kekbwich, J., held that a power to make outlays in repairs or improvements out of income or capital, impliedly authorised trustees to mortgage the property for that purpose. A direction to raise a gross sum, impliedly authorises a mortgage, even although the rents and profits are alone specified {p) ; but seciis where the power is to raise the sum out of annual rents and profits with j^ower to mortgage in case tlie necessary sum cannot ?*(' so raised (^). Where the trustees have power to raise out of rents and profits orby mortgage, the court (if the trustees ask it to exercise the discretion for them) will so raise the amount as to throw the burden on the beneficiaries in proportion to their respective interests in the property (r). So the arrears of a rent-charge may in the discretion of the court be raised by mortgage of the fee where the estate and the burden of the charge are in the same hands, notwithstanding the existence of a right to recover by distress (i) Be Frith and Osborne (1876), 1 Beav. 390. 3Ch. D.618. Where there is no {n) Ball v. Harris (1839), 4 express or implied power it can Myl. & Cr. at p. 267, explained only be done either by a partition by Lord St. Leonards in action, or by the Board of Agri- Stroughill v. Anstey (1852), 1 culture and Fisheries. De G. M. & G. 635. (k) See McQueen v. Farquhar (o) [1898] 2 Ch. 534. (1805), 11 Ves. 467; AU.-Gen.y. (p) Per Lord Eldon, Bootle Hamilton (1816), 1 Madd. 214 ; v. Blundell (1815), 1 Mer., at and judgment of JessEL, M.R., p. 233 ; Countess of Shrewsbury in Be Frith and Osborne, supra. v. Earl of Shrewsbury (1790), (Z) Sug. on Pow. 858. 1 Ves. Jun. 227. (m) See Walker v. Southall (q) Solley v. Wood (1861), 29 (1887), 56 L. T. 882; Devaynes Beav. 482. V. Eobmsow (1857), 24 Beav. 86 ; (r) Jones v. Jones (1846), 5 and Haldenbyv. Spofforth{\S39) , Hare, 440; Ainslie v, Harcourt T, Z 338 The Administration of a Trust. Art. 57. Statutory powers of selling and mortgaging. Under Lands Clauses Acts. and entry (i-)- But this is not so where there is a term of years for securing it (0- Where trustees are empowered to mortgage, they have an impHed power to raise the incidental costs by mortgage of the same property (/O- Paragraph (1) (b). The general incapacity of trustees to sell or mortgage the trust property, unless empowered by their trust to do so, has been modified in several instances by Parliament. Section 7 of the Lands Clauses Consolidation Act, 1845, empowers (inter alios) trustees, to sell by agreement, lands vested in them which are required ])y bodies empowered to acquire such lands by a statute incorporating the Act. This section, however, does not apply to bare trustees, c.f/., a trustee for a married woman who is not restrained from antici- pation (/(•) ; for if the cestui que trust is sui juris, and the trustee is the mere holder of the bare legal estate for him, he, and not the trustee, is the proper person to have the conduct of the negotiation (a;), the trustee of course joining in the conveyance to convey the legal estate 0/). Sales under this Act may be either for a gross sum or a perpetual rent-charge (z). But in either case, where a trustee is selling under the statutory power, the consideration must not be less than the amount fixed by two surveyors under s. 9— one appointed l)y either party — or the umpire of such surveyors ; and if it be a gross sum e.xceeding ^£200, it must be paid into court and not to the trustees (a). The price may be agreed on, subject to subsequent confirmation by the surveyors or their umpire. It would serve no good purpose to enlarge on sales under this Act in this work, as it is an exceptional matter which is more appropriately discussed in treatises on the Act itself. (1860), 28 Beav. 313; Bedman V. Rymer (1891), 65 L. T. 270. (s) Cupit V. Jackson (1824), 13 Pr. 721 ; Philipps v. Philipps (1844), 8 Beav. 193; White v. James (Xo. 2) (1858), 26 Beav. 191; Ilorton v. Hall (1874), L. R. 17 Eq. 437 ; Taylor v. Taylor (1874), L. R. 17 Eq."324; Scottish Widows Fund v. Craig (1882), 20 Ch. D. 208 ; Re Tucker, Tucker v. Tucker, [1893] 2 Ch. 323. (t) Blackhurne v. Hope- Edwardes, [1901] 1 Ch. 419. («) Armstrong v. Armstrong (1874), L. R. 18 Eq. 541. (w) I'etcrs V. Lewes and East Grinstead Bail. Go. (1881), 18 Ch. D. 429. {x) Be Pigott and The Great Western Bail Co. (1881), 18 Ch. D. at p. 149. (y) TAppincott v. Smyth (1860), 29 L. J. Ch. 520. {z) 23 & 24 Vict. c. 106, ss. 1 and 2. (a) 8 & 9 Vict. c. 18, s. 69. Where it is less than £200 and more than £20, it can either be paid into coui't or to two trustees nominated by tlie parties entitled to the rents (s. 71), and if it does not exceed £20, to the selling trustees. Power to Sell or Mortgage Trust Property. 839 Prior to 1859, where a testator had charged his hviuls with Ait. 57. the i)ayment of dehts or legacies, but had omitted to provide any means of raising the charge by sale or mortgage, nothing Under Lord ^ less than a suit in Chancery for the general administration of Act, is.')!). his estate would meet the case. To obviate this, Lord St. Leonards' Act, 1859 (b), conferred on devisees in trust to whom a testator dying after August 13th, 1859 should devise real estate fur the ivhole of his estate or interest therein charged with payment of debts or legacies, a power to raise the same by sale or mortgage (c). This Act has been largely superseded by the Land Transfer Act, 1897, which vests all the freeholds of a deceased person in his personal representatives, with full powers of sale or mortgage. But as the Act of 1897 does not apply to copyholds of which the deceased person was tenant on the court rolls (although it does apply to merely equitable interests in copyholds). Lord St. Leonards' Act is still occasionally used for the purpose of raising, by sale or mortgage, debts or legacies charged on copyholds, and therefore demands some notice. Under this Act, if the estate be charged wdth debts or legacies or both, generally, a purchaser or mortgagee is not bound to demand proof that there are any unpaid debts or legacies, nor to see to the application of the purchase-money or loan {d) ; but it is otherwise where the charge is of a specified debt or a specified legacy (e). This exemption from inquiry extends for a period of twenty years after the testator's decease ; but after that, a purchaser or mortgagee from trustees (/) (herein dilTering from a purchaser or mortgagee of leaseholds from an executor (//) ) must make reasonable inquiry as to the existence of unpaid debts or legacies. It would seem that in all cases the trustees or personal representative must sell and convey as sucli to give a good title under the Act (It). It is apprehended that trustees to whom coj^yholds are whether devised cannot, by virtue of this Act, present a purchaser for trustees or Gxccutors admission without either being admitted themselves or allowing selling copy- the customary heir to take admission. It is not like a common holds under •^ Lord St. (ft) 22 & 23 Vict. c. 35, ss. 14 Peacock (1844), 1 Ph. 717; Leonards' Act and 15. Bobinson v. Lowater (1854), 5 can present (c) The Act also provides by De G. M. & G. 272. pmd.aser for s. 16 that if there be no devise of (e) Elliot v. 3Ierriman (1734), admission. his whole estate to trustees, the Barn. Ch. 78. power may be exercised by his (f) Be Tanquerny-Willaumeand executors, but this is beyond the Landau (1882), 20 Ch. D. 465. scope of the present work. (g) Be Whistler (1887), 35 Ch. (d) Stroughill V. Anstey (1852), D. 561; Be Venn and Furze's 1 De G. M. & G. 635 ; and see Contract, [1894] 2 Ch. 101. Johnson v. Bennett (1835), 3 {h See Solomon v. Attenborough MyL & K. 624 Forbes v. (1912), 106 L. T. 87. z2 340 The Administration of a Trust. Art. 57. Sales under Succession Duty .ind Finance Acts Baising money for purpose of renewing leases. Sales, etc., by Settled Land Act trustees on behalf of infants. law power, where a testator devises his copyholds to such uses as his executors may appoint by way of sale. Under such powers the purchaser is regarded as the devisee ; Ijut it seems impossible to say that a statutory power of sale given to a devisee in trust stands on the same plane. The case where there is no devise of the copyholds, and the statutory power is exercisable by the executors is more difficult, as they certainly take no estate, and without an administration action cannot compel the customary heir to be admitted for the purpose of surrendering to the use of a purchaser. The present writer is not aware of any case in which this point has been raised, and it scarcely falls within the limits of this treatise. The Succession Duty Act (i), s. 44, authorises trustees to raise the duty " at interest on the securitj' of " the property, with power to give effectual discharges ; and such securities have priority over any charge or incumbrance created by the successor. By s. 9 (5) of the Finance Act, 1894 (A-), a person authorised or required to pay estate dutj^ (which seems to include settle- ment estate duty {I) ) has jDower, whether the property is or is not vested in him, to raise the amount of such duty, and any interest and expenses properly incurred by him in respect thereof, by the sale or mortgage of or a terminable charge on the property. This section of course embraces trustees by whom such duty is payable. The Act (sub-s. 7) also authorises trustees to pay the duty out of any money arising from the sale of property, or held upon trust to lay it out under the settlement ; and also authorises Settled Land Act trustees to pay it out of capital money in their hands. By s. 19, sub-s. 2, of the Trustee Act, 1893 (?»), it is provided that where money is required to pay for the renewal of renew- able leases, and the trustees have not sufficient money in hand for the purpose, they may raise it by mortgage of the property to be comprised in the renewed leases, or of any other property subject to the same trusts. This sub-section is printed in full and commented upon supra, p. 256. Lastly, trustees for purposes of the Settled Land Acts may, on bebiilf of an infant who is tenant for life, or would be if he were of full age, or would have the powers of a tenant for life under s. 58 of the Settled Land Act, 1882, exercise, on his behalf, all the powers of selling, partitioning, exchanging, leasing, and mortgaging conferred on tenants for life by that Act. It is (i) 16 & 17 Vict. c. .51. ik) 57 & 58 Vict. c. 30. {I) See lie Leveridge, Spain v. Lejoindre, [1901] 2 Ch. 830. (m) 56 & 57 Vict. c. 53. Power to Sell or Mortgage Trust Property. 341 apprehended that this would also apply where under a settle- Art. 57. ment the infant is owner in fee, provided the trustees of the settlement have been expressly appointed as trustees for the purposes of the Settled Land Acts or have an express power of sale during the minority of the infant. Otherwise an application would have to be made to the court under s. 60 to appoint some person ad hoc. On the other hand, the fact that trustees are trustees of an estate j/?M- autre vie does not give them the powers of sale, etc., conferred on tenants for the life of another by s. 58 (1) (v.) of the Settled Land Act, 1882, that Act only relating to beneficial owners (»). By s. 10 of the Conveyancing Act, 1911 (1 & 2 Geo. V., c. 37), Under s. lo it is enacted that where a settlement within the meaning of the ^"^ Convey- 63rd section of the Settled Land Act, 1882, or other settlement vni. of property as personal estate contains a power to invest money in the purchase of land, such land shall, unless the settlement otherwise provides, be held by the trustees on trust for sale, with power to postpone the sale ; and the net rents and profits until sale, after keeping down costs of repairs and insurance and other outgoings, shall be paid or applied in like manner as the income of investments representing the purchase-money would be paj^able or applicable if a sale had been made and the proceeds had been duly invested in personal estate. This, however, only applies to settlements coming into operation after 1911. The same Act (s. 9) also expressly directs trustees of funds Foreclosed which have been invested on mortgage of lands, the equity of "^^'^^.^'jicr redemption of which has in any way become barred, to hold trust funds such lands in trust for sale ; but this aj)pears to be merely '"^'^'^^^ • declaratory of the pre-existing law of the court. Art. 58. — Fowey of Trustees in relation to the Conduct of Sales. (1) Where a trust for sale is vested in trustees they may carry out the sale as follows : (a) In such manner, and either alone or jointly with any adjoining or any co-owner, as (having regard to all the surrounding circumstances) may l)e reasonable and for theprol)able l)enelit (n) Be Jemmett and Guest's Contract, [1907] 1 Ch. 629. 342 The Administration of a Trust. ^^- 58. of the beneficiaries (o). But, unless the trust was created by a settlement coming into operation after August 27th, 1860 (/>), they cannot buy in the property at an auction [q), or, scmhJr, rescind a contract for sale. They may accept a cheque for the deposit (/•). (b) If the settlement first came into operation after the 81st of December, 1883, then (unless expressly forbidden) they may sell subject to prior charges or not, and may concur with any other person in selling, without the necessity of making inquiries as to whether the couTse adopted is the best (.s). (c) By leave of the court (but not otherwise, unless expressly authorised) they may sell the surface, reserving the minerals with incidental powers of working the same. But when such leave has been once obtained they may (unless for- bidden by the settlement) from time to time dispose of surface and minerals separately without any further application (t). (2) Where the property is of leasehold tenure, the sale can (if several properties comprised in one lease are sold in lots) be made by way of underleases (u) at apportioned rents. (3) The conditions subject to which the sale is made should not be unnecessarily depreciatory (x). (4) A trustee who is either a vendor or a purchaser (o) See Ee Cooi^er and Allen to [1901] 2 Cli. 383 ; affirmed, Harlech's Contract (1876), 4 [1902] W. N. 147. Cli. D. 802. (,r) But a depreciatory condi- {])) Lord Cranwortli's Act tioii does not now avoid the sale (23 & 24 Vict. c. 145), ss. 1, 2, unless it appears that the price 34. was thereby rendered inadequate, (f/) Taijlor V. Tahrum (1833), nor can the sale be impeached 6 ISim. 281 ; Ex imrte Lewis after conveyance on that ground (1819), 1 Vt\. & J. 69. unless the purchaser and trustee (r) Farrer v. Lacy, Ifaiiland were acting coUusivcly ; nor cfc Co. (1885), 31 rii. D. 42. can a purchaser now make any («) Trustee Act, 1893 (56 & 57 objection to a title on the ground Vict. c. 53), 8. 13 (1), re-enacting that a condition of sale was Conveyancing Act, 1881 (44 &: 45 unnecessarily restrictive. See Vict. c. 41), s. 35. Trustee Act," 1893, ss. 14, 15, and (0 Trustee Act, 1893, s. 44. supra, p. 264. («) Ee Walker and Oakshott, of statute. Power in Kelation to Conduct of Sales. 343 may sell or buy without excluding the application -A-rt. 58. of section 2 of the Vendor and Purchaser Act, 1874 (//). Parageaph (1) (a) and (b). For an example of the law relating to old settlements, the Power to case of Re Cooper and Allen to IlarlecJi's Contract (z) may be ^^^\ ""^^'' cited. The question in that case was whether persons who independent were mortgagees of a life estate, and also mortgagees (for a different sum) of the reversion, with power of sale under both mortgages, could sell the fee simple in possession. The late Sir George Jessel, M.R., in giving judgment, said : " First of all, on principle, what is the duty of trustees for sale ? It is their duty to sell the estate to the best advantage they can, that is, in the manner most beneficial to the cestuis que trusts. It is, further, their duty to take care to receive the purchase- money, and to invest it properly according to the trusts. If, therefore, the sale of the property can be effected at a higher price by joining with somebody else, so far from that being a breach of that principle, they are only carrying out their trusts, and performing their duty in so obtaining that higher price. . . . Secondly, it is their duty, as I have already said, to receive the purchase-money. If, therefore, they do join with any other person, whether that other person be a trustee himself or be a beneficial owner, they must take care that their share of the purchase-money is jjaid to them, and the purchaser must take care of that likewise, because he can only pay trust money to the trustees. Therefore, where they do join with other people, the purchase-money must be so apportioned before the completion of the purchase, and must be paid by the purchaser ; the apportioned part coming to the trustees being paid to them." His lordship then proceeded to point out that the trustees were the proj^er persons to make the apportionment, and that unless a purchaser has notice that the apportionment is an improper one, he would be quite safe in accepting the trustees' apportionment. He then examined the cases in which the joinder with other parties was prima facie right, and those in which it required evidence to support it ; pointing out that in the case of adjacent properties, as a general rule, trustees should not agree to a joint sale without some evidence of its desirahility, but that in the case of trustees entitled only to a limited or partial estate iy) Trustee Act, 1893, s. 14. (z) (1876) 4 Cli. D. 802. 844 Art. 58. No power formerly to buy in at a sale by auction. The Administeatiok of a Trust. in property, it is obviously, and without the necessity of proof, for the benefit of the estate that they should join in a sale of the entire fee simple with the other parties interested. As an instance of the inabihty of trustees under old settle- ments to buy in the property at an auction may be mentioned a case in which the assignees of a bankrupt had bought in two lots of the bankrupt's property, and, upon the subsequent sale of the two lots, had gained on one and lost on the other. It was held by Lord Eldon, that the original buying in of the two lots being a breach of trust, the assignees were liable for the loss (if any) on each lot, and could not set off the gain on one against the loss on the other (a). But it is conceived that this somewhat harsh decision would scarcely be followed at the present day. Selling surface and minerals separately. Paragraph (1) (c). At one time it was impossible for trustees, in the absence of exj^ress jDOwer, to sell surface and minerals separately. To remedy this the Confirmation of Sales Act (h) gave the court power to sanction such sales. This Act was repealed by the Trustee Act, 1893 (c), Init re-enacted in a slightly different form by s. 44 of that Act, which, as amended b}' s. 3 of the Trustee Amendment Act, 1894 (57 & 58 Vict. c. 10), is in the following words : — (1) "\Miere a trustee or otlier person {d) is for the time being authorised to dispose of land by way of sale, exchange, partition, or enfran- chisement, the High Coui't may sanction his so disposing of the land with an exception or reservation of any minerals, and with or without rights and powers of or incidental to the working, getting, or carrying away of the minerals, . . . with or without the said rights or powers, separately from the residue of the laud. (2) An}' such trustee or other person, with the said sanction previously obtained, may, unless forbidden by the instrument creating the trust or direction, from time to time, without any further application to the Court, so dispose of anj' such land or minerals. (.'Jj Nothing in this section shall derogate from auj power which a trustee may have under the Settled Land Acts, 1882 to 1890, or otherwise. It will l)e perceived that this enactment does not apply (er Fky, J., Re Cotton's L. K. 20 Eq. 255, appears to be Trustees and London School Board inconsistent with the other cases. (1882), 19 Ch. D. at p. 627. (d) (1859) .Johns. 265 ; and see (c) Josselyn v. Josselyn judgment ot Malins, V.-C, Bubb (18.'}7), 9 8ini. 6.3; Saunders v. v. i'rtrfirjc/.- ( 1880), 13 Ch. D. 517. Vaiitier (1841), Ci'. & Ph. 240; Fky, . I., dissented I'roiu this case Wlairlo)! V. Mitslerman, (IS95J in AV Chaston, Chaslon v. Seago A. C. 186; He Johnston, M ills \ . (1881), 18 Ch. D. 218, but on Johnston, |1894] 3 Ch. 204; and grounds immaterial to the pre- distinguish Re Lord Nunburn- sent point. holme, Wilson v. Nunbumholme, n Power of Beneficiaries Collectively. 357 enjoyment of the property given to them hy will, notwith- * Art. 64. standing any directions hy the testator to the effect that tliey are not to enjoy it until a later age, unless, during the interval, the property is given for the benefit of another. If the property is once theirs, it is useless for the testator to \ attempt to impose any fetter upon their enjoyment of it in \ full, so soon as they attain twenty-one." The above cases must, however, be carefully distinguished otherwise from those in which the settlement gives the trustees a inJa[ate" discretion to apply the income until the given age for the interest does maintenance of a class of beneficiaries, or any one or more of to same them to the exclusion of the others. For, in that case, until beneficiary. the youngest member of the class attains the given age, it is impossible to say that any member of the class has an absolute right to the income of his share. Consequently, he is not the only person interested in his share, and cannot call for the payment of it {e). But of course the class collectively could do so if sni juris. Again, in Re Brou-ne's Will{f) there was a bequest of Bequest of consols in trust to purchase a life annuity for a lady, to be ^ ®^^™ °f ^ . . . consols to held for her separate use without power of anticipation ; and purchase a in case of her illness or incapacity, the testator gave the ^'^'^ annuity. trustees a discretionary power as to the application of the annuity for her maintenance. The legatee heimj unmarried, and the restraint on anticipation being therefore nugatory, it was held that she was entitled to a transfer of the consols into her own name {g). A similar result followed even where the testator directed that the annuitant should not be entitled to have the value of his annuity in lieu thereof, and that if he should sell it, it should cease, and form part of the residuary estate (/<)• So, where a testator directed his property to be divided Absolute gift into nine shares, and gave one and a half share to each of his Ivitlrafrec"^ two daughters, " to be settled on themselves at their marriage," tion to settle upon tliem- (e) Be Coleman, Henry v. BuUanshaw v. Ilartin (1859), selves at Strong (1888), 39 Ch. D. 443. Johns. 89; Wright v. Wright marriage. But distinguish Kearsleyv. Wood- (1862), 2 Johns. & H. 647 ; Cooke cock (1843), 3 Hare, 185, where v. Fuller (1858), 26 Beav. 99; the words above italicised were Barton v. Briscoe (1822), Jae. not in the will, and it was held 603 ; Be Gaffee (1849), 1 Mac. & that the trustee in bankruptcy G. 541 ; Be Linzee's Settlement of one beneficiary was entitled (1856), 23 Beav. 241. to a part of the income to be {h) Hunt-Foidston v. Furber ascertained by inquiry {sed (1876), 3 Ch. D. 285; and see qncere). also Be Bobbins, Bobbins v. (/) (1859) 27 Beav. 324. Legge, [1907] 2 Ch. 8; and (a) See also Tullett v. Arm- Parkes v. Boyal Botanic Society strong (1840), 4 Myl. & Cr. 377 ; (1908), 24 T. L. R. 508. 358 The Administration of a Trust. Alt. 64. Direction to sell estate and divide proceeds. Power to sell and divide proceeds. it was held b}' Sir Jamks Bacon, V.-C, that, on tlie true cons(riirti<»)i of the irill (inasmuch as there was no reference to grandchildren, or any intimation of the testator's desire to restrict the gift to a life interest), the daughters took absolutel}' ; and, if so, then, under the above rule, they were entitled to have their shares paid over to them on attaining twenty-one, free from all liability to have the same settled (i). Whether the learned judge's construction of the will was correct may perhaps be respectfully doubted (/.•). Anyhow, the reader must carefully distinguish the above case from those in which there is a direction to settle on her daughter and hi'r jss«t'(/), where of course she would not be the only person beneficially interested, and consequently would not be entitled to demand the capital. On similar principles, where an estate is directed to be sold and the proceeds to be divided among several persons, although no one singlj- can elect that his own share shall not be dis- posed of, but shall remain realty (///), 3'et if all the beneficiaries agree to take the land unconverted, they can put an end to the trust, and insist upon their right to do so {n). But until they do so elect, the trust subsists ; and by s. 10 (3) of the Conveyancing Act, 1911, it was enacted that so far as concerns the protection of a purchaser thereunder the trust for sale is to be deemed subsisting until the land has been conveyed to or under the direction of the persons interested in the proceeds of sale. This therefore obviates the necessity of enquiring whether (where all the beneficiaries are sui juris and absolutely entitled), they have elected to take the property in specie. Where, however, there is no trust for sale, but merel}' a jxjwer of sale, the statute does not seem to apply, and more- over the rule is subject to this modification, viz., that the trustees can still exercise the power after all the beneficial interests in the property have, under the trusts, become (i) Magrath v. Morehead (1871), L. R. 12 Eq. 491 ; Be Jordan's Trusts, [1903] 1 Jr. R. 119. (it) See Loch v. Bagley (1867), L. K. 4 Eq. 122. (I) .See, lor example, Wise v. J'iyer (1880), 13 Ch. D. 848. (m) JloUoivay v. liadcliffe (1857), 23 Ueav. 163; Biggs v. J'eacock (1882), 22 Ch. D. 284; Jie Tweedie and Miles (1884), 27 Ch. D. 316 ; aud see judgment of CniTTY, J., Ee Daveron, Bowen v. Churchill, [1893] 3 Ch. at p. 424 ; and lie Douglas and FoicelVs Contract, [1902] 2 Ch. 296. (n) Be Coiton^s Trustees and London School Board (1882), 19 Cli. D. 624 ; Marco urt v. Seymour (1851), 2 Sim. (n. s.) 12 ; Cookson V. Beay (1842), 5 Eeav. 22; Dixon V. Gay fere (1853), 17 Beav. 421. Power of Beneficiaries Collectively. 859 absolutely vested in persons who are siii juris, if, on the Art. 64. construction of the settlement, it appears to he the intention of the settlor that it should he then exercised, and provided that the power in its creation was not obnoxious to the rule against perpetuities (o). It follows that, in such a ease, no one of the beneficiaries can insist upon having his undivided share in the legal estate conveyed to him by the trustees ; for that would place it out of the trustees' power to exercise the power of sale conlided to them for the benefit of all the beneficiaries (^j). A fortiori is this so where one of the beneficiaries is not sui juris, e.g., a lunatic (q). But of course the beneficiaries collectively could stop the sale. Where, however, there is a trust for sale to be made at a Trust for sale date which might infringe the rule against perpetuities {e.g., rui"a^jinst on the death of the survivor of the testator's daughter and perpetuities, any husband whom she might leave surviving her), then, although the trust for sale will be void, the trust in favour of the beneficiaries will be valid if they be jjersons who could certainly be ascertained within the period allowed by the rule ; e.g., children of the daughter who should attain twenty-one. In such cases the trust for sale will be construed as mere machinery for effecting a division, and will be disregarded, and the beneficiaries will take the property as real estate (r). However, a poicer not expressly limited in point of duration rowers void is not necessarily void : for there is a presumption that it was ^°^ , remoteness, intended to cease when all beneficial interests should have vested absolutely in possession in persons sui juris. Even where it can be gathered that the settlor intended it to be exercised after that event "for facility of division," it can still be exercised within the period allowed by the rule against perpetuities (s). But where no successive interests are given, and the property vests absolutely in persons sui juris directlg the settlement takes effect, and no intention can be gathered that the power was merely given for facility of division, it will be void for remoteness (0- The above examples deal only with cases in which tliere joinder of all beneficiaries (o) Re Cotton's Trustees and {q) Be Jump, Galloway v. where London School Board (1882), 19 Hope, supra. entitled Ch. D. 624 ; Peters v. Lewes and (r) Ee Applehij, Walker v. successively. East Grinstead Rail. Co. (1881), Lever, [1903] 1 Ch. 565; Goodier 18 Ch. D. 429 ; Re Lord Sudeley v. Edmunds, [1893] 3 Ch. 455 ; and Baines dc Co., [1894] 1 Ch. Re Daveron, Bowen v. Churchill, 334, discussed in Re Dyson and [1893] 3 Ch. 421. Fowke, [1896] 2 Ch. 720; Re {s) Re Lord Sudeley and Baines Jump, Galloway v. Hope, [1903] & Co., supra ; and see also Re 1 Ch. 129. Kaye and Uoyle's Contract [IdOQ], ip) Be Uorsnaill, Womersley v. 53 8ol. J. 520. Horsnaill, [1909] 1 Ch. 631. {t) Be Dyson and Fowke, supra. 60 The Administration of a Trust. Art. 64. was either one beneficiary only, or several entitled as tenants in common or joint tenants. The same principle, however, is equally applicable where the trust is for persons in succession, and they unanimously desire to put an end to the trust (w). Thus, if the trust be for A. for life with remainder for his wife B. for life for her separate use, with remainder to X., Y. and Z. absolutel}^ then A,, B., X., Y. and Z., being collectively the absolute and only owners, can join together in putting an end to the trust, and calling on the trustees to deal with the property, whether real or personal, as they may direct. The same result follows even where there is a discretionary trust for A., B., or C. or any one or more of them if all three concur (,v). Even where it is not absolutely certain that no more beneficiaries can come into existence, but it is morally so (e.g., where the ultimate remainder is in trust for the children of a woman who is past the age of child-bearing), the court will on summons give the trustees liberty to act according to the directions of the beneficiaries in esse so long as the contingent rights of living persons are not prejudiced Oy), although it is understood that the court will not in such cases imperatively order the trustees to do so (z). The question is sometimes asked, whether a mortgagee of an only beneficiary, or, what comes to the same thing, of the several beneficial interests of all the beneficiaries, can put an end to a trust (say, for sale), and demand a conveyance of the legal estate from the trustees. It is, however, clear on princij)le that so long as any equity of redemption is in existence (that is to say, until sale or foreclosure) he could not. For while an equity of redemption subsists, the mortgagee is not the sole person beneficially interested in the property, and therefore cannot, under the rule above enunciated, assume absolute dominion over it. No doubt, when he has obtained a decree of absolute foreclosure, he could put an end to the trust ; and so, if he sold the entire l)eneficial interest of all the mortgagees, could the (i() Falairet v. Carew (1863). Edmond, [1901] 1 Cli. 570; 32 Beav. 564; Be White, White Davidson v. Kimpton (1881), 18 V. Edmond, [1901] 1 Ch. 570. Ch. D. 213; Be Widdow's Even wliere the parties entitled Trusts (1871), L. R. 11 Eq. 408 ; in remainder are merely trustees Be Millner's Estate (1872), L. R. of a subsidiary settlement they 14 Eq. 245 ; Be Jordan's Trusts, and the life tenant under the 1 1903] 1 Ir. R. 119; Be Thornhill, original settlement can call for Thornhill v. Nixon, [1904] W. N. a transfer of the fund (tImso/i V. 112; but cf. Croxton v. May Potter (1879), 13 Ch. D. 141). (1878), 9 Ch. D. 388. (r) Bipjion v. Norton (1839), (z) There is no reported deci- 2 IJeav. 63. sion as to this, but it is the well- (y) Be White, White v. known practice. Power of Beneficiaries Collectively, 8r.l purchaser (a) . Moreover, if the mortgage, or all the mortgages Ai't. 64. (as the case may be), contained powers authorising the mort- gagee to stay, or agree with others in staying, the trust, he might, under such powers, do so ; but nothing short of a most expHcit power would enable him before foreclosure or sale to demand a conveyance of the legal estate. The above view seems to be borne out by the cases of Re Bell, Jefery v. Saylea (h), and Hockey v. Western (c), in which it was held that a mortgagee of a share in a trust fund cannot demand to be paid the entire share of his mortgagor, but only his principal, interest, and costs (h) ; although the trustees might pay the whole share if they pleased (c). Art. 65. — Power of one of several Beneficiaries partiaUij interested in a Special Trust. (1) The authority of one of several beneficiaries in a special trust in general depends upon the terms of the trust as construed by the court, coupled with the powers conferred on equitable tenants for life by the Settled Land Acts, 1882 — 1890. But a beneficiary, who is swi juris, cannot be prohibited from assigning his or her interest, save only in the case of a married woman during coverture {d) . (2) The court has a discretion to order the trustees to give the actual possession of settled land to the person entitled for the time being to the net income, on such terms and conditions as the court may think fit {e). (a) Wliicli lie could do at one the husband, but also by divorce price {Be Cooper and Allen to {Be Linzee's Settlement {185G), 23 Harlech's Contract {1S16), 4:011.1). Beav. 241), judicial separation, 802). or the granting of a protection (b) [1896] 1 Ch. 1. order (Coohe v. Fuller (1858), 26 (c) [1898] 1 Cb. 350. Beav. 99). (d) Pybus V. Smith (1791), 3 (e) Be Bagofs Settlement, Bagot Bro. C. C. 340 ; Be Ellis' Trusts v. Kittoe, [1894] 1 Ch. 177 ; Be (1874), L. E. 17 Eq. 409; Ear- Bichardson, Bichardson v. lode V. Eorlock (1852), 2 De G. M. Bichardson, [1900] 2 Ch. 778 ; & Ct. 644 ; Tullett v. Armstrong Be Hunt, Pollard v. Geake, [1900] (1840), 4 Myl. & Cr. 377; Be W. N. 65; Be Money Kyrle, Gaffee (1849), 1 Mac. & G. 541 ; Money Kyrle v. Money Kyrle, Buttanshaw v. Martin (1859), [1900] 2 Ch. 839. As to tlie old Johns. 89. Coverture means law of tlie court, see Tidd v. effective marriage, and ceases to Lister (1820), 5 Madd. 429. exist not only by the death of 302 The xA-dministration of a Trust. Art. 65. Paragraph (1). Equitable interest of beneficiary cannot be matle inalien- able except during coverture. Otherwise where gift over on alienation. The interest of a beneficial*}' (save only in the case of a married woman during her coverture) cannot be made inaUen- able (/■), except by means of a shifting clause giving it over, or practically giving it over, to some other person upon alienation 0/) ; in which case such other person, having a contingent interest, is also a beneficiary. For instance, a trust to apply income for another's maintenance entitles him to have the income paid to him or to his alienee, even although he be restrained from alienation ; for no one in remainder is injured b}' it (It). Where, however, there is a trust to pay income to A. Kntil he shall alienate it or become bankrupt, etc. ; and, upon the happening of any of those events, a further trust to pay to him, or apply for his benefit during the remainder of his life, the whole or so much onhj of such income as the trustees may in their discretion think fit, and, subject thereto, the residue of such income (if any) is to be jja«(7 to other persons ; then, as the trustees have an absolute discretion as to what part of the income they will apply for the benefit of the tenant for life, his alienees or creditors cannot force the trustees to pay them any part of the income (i). Moreover, it appears that, although the trustees would not be justified in paii'uKi any part of the income to the life tenant (because it no longer belongs to him, but to his alienees or creditors), they would nevertheless be justified in expending it for his benefit (A). It need scarcely be said that until they have (/) Snowdon v. Dales (1834), 6 Sim. 524 ; Green v. Spicer (1830), 1 Kuss. & Myl. 395; Brandon v. Bobinson (1811), 18 Ves. 429 ; Hood v. Oglander (1865), 34 Beav. 513. But ef. p. 68, supra. ig) See Oldham v. Oldham (1867), L. R. 3 Eq. 404 ; Billson V. Crofts (1873), L. R. 15 Eq. 314 ; Re Aylwin's Trusts (1873), L. R. 16 Eq. 585 ; Ex parte Eyston, Re ThroclcmoHon (1877), 7 Ch. I). 145 ; and see Re Poiier, Coulson V. Capper, [1892] 3 Cli. 481. {h) Tounghusband v. Gisborne (1844), 1 Coll. 400, (affirmed (1846) 15 L. .J.Cli.355) ; Snowdon V. Dales (1834), 6 Sim. 524. {i) Re BullocTc, Good v. Lickorish (1891), 64 L. T. 736; Train v. Clapperton, [1908] A. C. 342 ; and c/. Lord v. Bunn (1843), 2 Y. & Coll. C. C. 98, which seems contra at first sight, but really turned on a question of construction. {Ic) Re Bulloch, Good v. Lickorish, supra ; and cf. Re Coleman, Henry v. Strong (1888), 39 Ch. D. 443, and Re Neil, Hemming v. Neil, (1890) 62 L. T. 649. But see Re Ashby, Ex pai-te Wreford, [1892] 1 Q. B. 872, where Vaughan Williams, J., thought the bankrupt might have to account for sums paid to him. Power of One of Several Beneficiaries. 3C3 notice of an act amounting to forfeiture the trustees are Ai't. 65. justified in paying the income to the first beneficiary (l). Even where a married woman who is tenant in tail for Restraint on her sei^arate use is restrained from anticipation, she can by^^^arriwi bar the entail and turn her estate into a fee simple ; for she woman does does not thereby anticipate her interest, but only enlarges |jg,. b"rrin'^'^ it {m). iin entail. Paragraph (2). Whatever the law may have been at one time, the court How far has, since the passing of the Settled Land Act, 1882 (45 & teni5,f mav^ 46 Vict. c. 38), exercised much more freely its undoubted claim actual discretion as to allowing an equitable life tenant to have P°^^^^'°°- actual possession («). The principles on which the court now acts in such cases are stated in Be Bagofs Settlement, Bagot V. Kittoe (o). There Chitty, J., said : " It is clear that Mrs. Bagot (the equitable life tenant) has no ruiJtt to claim to be let into possession, and she can only claim to be let into possession through the exercise of the Judicial discretion. . . , On the point of convenience, it is convenient that the lady and her husband, to the extent to which she may desire to obtain his assistance, should have the management of the propert}^, the income of which she is entitled to receive ; and that she should get that income with as little expense in the way of commission for collecting rents, employment of agents, and the like, as is practicable under the circum- stances. . . . Therefore, if I were dealing with this case quite apart from the Settled Land Acts, I should consider it a proper exercise of my discretion to let the lady into possession. I am not disposed myself to say that the Settled Land Acts have abrogated the old cases. It really appears to me that the proper expression with regard to the Settled Land Acts, with reference to the doctrine which I am considering is, that the Settled Land Acts afford an additional ground for exercising the discretion favourably to the person who has conferred upon her or him, as tenant for life, by the Settled Land Acts, the extensive powers therein contained." The court therefore ordered that the tenant for life should be let into possession, upon giving certain undertakings in the form set forth in the case of Re Wythes, West v. Wijtlies{])). In Re Newen, Newen v. {I) Be Long, Lovegrove Y.Long, (n) Be Richardson, Bichardson [1901] W. N. 166. V. Bichardson, [1900J 2 Cli. 778. (m) Cooper v. Macdonald (o) [1894] 1 Ch. 177. (1877), 7 Oh. D. 288. (p) [1893] 2 Ch. 369. 364 The Administration of a Trust. Art. 65. Barnes (q), Kekewicii, J., appears to have considered that an equital)le tenant for life is cniiilcd to he let into possession on a proper case heing made, hut if and so far as he intended to hold that the matter was not discretionary, that view has heen dissented from by Stirling, J. (r). ((/) [1894] 2 Ch. 297. See also [1900] W. N. 65. As to an 7?e Money Kyrle, Money Kyrle equitable tenant for life having V. Money Kyrle, [1900] 2 Cli. the possession of the title deeds, 839. see Wheeler v. Tootell (1903), 51 (r) Be Uunt, rollard v. Geake, W. R. G93. CHAPTEK VI. THE DEATH, RETIREMENT, OR REMOVAL OF TRUSTEES, AND THE APPOINTMENT OF NEW TRUSTEES. ART. PAGE 66. — Survivorship of the Office and Estate .... 365 67.— Devolution of the Office and Estate on Death of the Survivor 366 68. — Retirement or Removal of a Trustee .... 373 69. — Appointment of New Trustees 376 70. — Vesting of Trust Property in New Trustees. . . 396 Art. 66. — Survivorsliip of the Office and Estate. (1) Upon the death of a trustee, the office, as well as the estate, survives to the surviving trustees (a) ; and the survivors can carry out the trust and exercise all such powers as were given to the original trustees of dealing with the trust property (/^), unless there he an intention to the contrary (c). (2) An express power to appoint new trustees is not evidence of an intention to the contrary [d) . This was always the law with regard to trusts as distin- Surviving 1 \ * 1 1 r>o f j-v, trustee may guished from mere bare powers (e). And now, i\y s. AA ot me exercise all Trustee Act, 1893 (re-enacting a repealed section of the Con- powers given . . 1 , 1 J 1 J. 1 • i-i to the onormal veyancmg Act, 1881), it is expressly enacted that where, m tlie trustees as case of a trust created after December 81st, 1881, a power or such, trust is given to, or vested in, two or more trustees jointly, (a) Warburton v. Sandys 2 Jac. & W. 245 ; and see Jacob (1845), 14 Sim. 622; Eyre V. v. ixcas (1839), 1 Beav. 436 ; Be Countess of Shaftesbury {112'^), 2 Smith, Eastick v. Smith, [1904] P. Wms. 102. 1 Ch. 139. (&) Lane v. Debenham (1853), {d) Per Farwell, J., Le 11 Hare, 188; Eyre y. Countess Smith, Eastich v. Smith, [1904] of Shaftesbury, supra ; Be Cookes' 1 Ch. at p. 144. Contract (1877), 4 Ch. D. 454; (c) Warburton v. _ Sandijs, and as to settlements coming supra; Doe v. Godwin (1822), into operation since 1881, see 1 D. & R. 259 ; Be Bacon, Trustee Act, 1893 (56 & 57 Vict. Toovey v. Turner, [1907] 1 C h. c. 53), s. 22. 475. (c) Foley v. Wontner (1820), 366 The Administration of a Trust. Art. 66. then, unless the contrary is expressed in the settlement (if any), the same may be exercised or performed by the survivor or survivors of them for the time being. It would seem, however, that the statute only applies to powers which are incident to the office of trustee ; and that it is in all cases a question of interpretation whether a discre- tionary power was intended to be incident to the office, or was a mere naked ]iower given to the individuals who were also nominated trustees (/). Primd facie, however, " every power given to trustees which enables them to deal with or affect the trust in'operty is given them ex officio as an incident of their office, and passes with the office to the holders or holder thereof for the time being." The mere fact that the power is one requiring the exercise of a \evY wide personal discretion is not enough to exclude this prima facie presumjDtion, and little regard is now paid to such minute differences as those between such expres- sions as " my trustees," " my trustees, A. & B.," and " A. & B., my trustees." In short, the testator's reliance on the indi^'iduals to the exclusion of the holders of the office for the time being must be expressed in clear and apt language (<, Rivers v. ^Yaidanis, (■nVct Coole V. Crawford (1842), [1908] 1 <"h. 123. j:i Sim. at p. 96; Re Rnmnrii {d) (1847) 11 Jur. 721. r(«rZ.S'TOi). These statutor}^ powers will be discussed in the next article. Before 188*2 a trustee could only be discharged without the appointment of a successor in two cases, viz., (1) by the con- sent of all the beneficiaries (as to which see infra) or (2) by order of the court, which had (and still has) jurisdiction in a proper case (in an administration action or summons, but not in a summons under the Trustee Act (c) ) to discharge one of two or more trustees without appointing a person to succeed him (d). However, Parliament has noAv provided that " if and so far as a contrary intention is not expressed " in the trust instrument, where there are more than two trustees, and one of them declares by deed that he is desirous of being dis- charged, and if his co-trustees and such other person (if any) as is empowered to appoint new trustees, by deed consent to his discharge and to the vesting in his co-trustees alone of the trust property, then he shall be discharged without any new trustee being appointed in his place (e). ^Vhether a new trustee can be subsequently appointed in his place before TrmlH (1872), L. K. 7 Cli. 223; and Re The Moravian Society (1858), 26 JJeav. 101. (z) Re Ilaninons TiKsts {liio2), 22 L. J. Cli. 09. (a) See Assets liealizalion Co. V. Trustees, etc., Corjinralion (1895), 65 L. J. Ch. li. {b) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 10. (c) lie Chetwynd's Settlement, Searisbrick v. Ncvinson, [1902] 1 Ch. 692. (rf) See Re Stokes'' Trusts (1872), L. R. 13 Eq. 333. (c) Trustee Act, 1893, s. 11. Ketirement or Eemoval of a Trustee. 375 another vacancy occurs seems questionable, and is discussed Art. 68. infra at p. 385. The method of retirement l)y consent of all the beneficiaries Retirement is merely a corollary of Art. 64. The beneficiaries collec- oYJi^J.g"*' tively l)eing the sole owners of the property, and able to put beneficiaries, an end to the trust, can a fortiori permit the trustee to retire. Eetirement by order of the court, is now a comparatively Retirement rare method of retirement from a trust. It might arise where ^y ^^^^"^ ^^ the trustee wishes to retire and either cannot procure a person to take his place, or, being himself the appointing party, has a dispute with his beneficiaries in relation to the person to be ai^pointed, or where the persons to appoint are out of the country, or cannot be found (/). In such cases he would be justified in issuing an originating summons under Order 54b, r. 5, of the Rules of the Supreme Court for the appointment of a new trustee in his place. No doubt it was formerly con- sidered that a trustee could not retire from his trust without some good reason, and that " if the circumstances preventing his continuing to perform his duties arose from any act of his own, or anything relating to himself, he ought to pay the costs of the appointment of a new trustee " (^) ; or in some cases be simply disallowed his own costs (/<). But this was long before the statutory power which enables a trustee to retire //" desirous of being discharged ; and it is conceived that, now, a trustee would not only be exempt from bearing the costs of an aj)plication to appoint a new trustee on his retirement (where it is difficult or impossible to appoint such a person under an express or the statutory power), but would also be entitled to his own costs {i) ; anyhow, it is the common practice {k). Paragraph (2) (a) . An instance of a trustee being removable under an express illustration power, is afforded by the form of bankers' mortgage which of express i ' J _ " . power to has of late years become common, viz., a declaration by a remove a mortgagor who has deposited his title deeds, that he will hold the legal estate in trust for the mortgagees, with j)ower for (/) See Be Humphry's Estate (1837), 1 Keen, 758; Greenwood (1855), 1 Jur. (N. s.) 921; and v. IFw/ce/ord (1839), 1 Bear. 576 ; Ee Somerset, [1887] W. N. 122. Be Stokes' Trusts (1872), L. R. (g) Forshaw v. Jligginson 13 Eq. 333 ; and Barker v. (1855), 20 Beav. 485. Beile (1865), 2 Dr. & Sm. 340. {h) Porter v. Watts (1852), 21 (A;) See Be Chetwynd's Settle- L. J. Ch. 211. ment, Scarisbrick v. Nevinson, (i) See Coventry v. Coventry [1902] 1 Cli. 692. trustee. 376 The Administration of a Trust. Art. 68. the mortgagees, during the continuance of the security, to remove him or any other trustee from the trusteeship, and to appoint themselves or any other person in his place. In such cases the mortgagees can, by a deed removing the trustee and appointing another person, coupled with a vesting declaration, take the legal estate out of the mortgagor, or even of an assign to whom he has conveyed it with notice (/). Paragraph (2) (b) and (c). The removal of a trustee under the statutory power of appointing new trustees, or by the court, is so mixed up with the appointment of new trustees, that the reader is referred to the next article for further information on the subject. Art. 69. — Appointment of New Trustees (m). (1) New trustees of a settlement may be appointed — (a) under an express power ; (b) under the statutory power conferred by s. 10 of the Trustee Act, 1893, unless a contrary intention is expressed in the settlement ; (c) by a person appointed for that purpose by the Lunacy Court, where the person having power to appoint is a lunatic or a person of unsound mind (n) ; (d) by the Chancery Division of the High Court (or, where a trustee is a lunatic, by the Lunacy Court) on the application of any trustee or beneficiary (o), whenever it is found inexpedient, diflicult, or impracticable to appoint a trustee without the assistance of the court; and particularly where it is desirable to appoint a new trustee in place of one who is convicted of felony, or is a bankrupt (j)), or is (l) London and County Bank- (o) Trustee Act, 1893 (56 & 67 ing Co. v. Goddard, [1897] 1 Ch. Vict. c. 53), s. 36, and Lunacy 642. Act, 1890 (53 Vict. c. 5), s. 141. (m) The apj)ointmeut oi a The court can charge the costs of judicial trustee is treated of such aijpointment, and of vesting separately in Art. 71, i«/r«. orders, on the trust estate (n) lie Shortridge, [1895] 1 Ch. (Trustee Act, 1893, s. 38). 278. (p) Trustee Act, 1893, s. 25. Appointment of New Trustees. 377 a lunatic or person of unsound mind. Where, Ait. 69. however, there is a donee of a power of appointing new trustees able and w^illing to exercise it, the court has no power to appoint new trustees contrary to his wishes (q). (2) Every new trustee, both before and after the trust property is vested in him, has the same powers, authorities, and discretions (incident to the office of trustee) (r), and may in all respects act as if he had been an original trustee. (3) Any person, including a corporation (,s), who can hold property, is capable of being appointed ; but a person ought not to be appointed who is not sui juris ; nor (except under very exceptional circumstances) one who resides out of the jurisdiction of the court; nor one who is a beneficiary, or husband of a beneficiary. The donee of a power of appointing new trustees ought not to appoint himself (t) without the sanction of the court (;<) ; and (semhle) cannot do so under the statutory power. (4) Where an attempted appointment is invalid, the old trustee remains liable, and the invalid ly appointed new trustee also becomes liable if he intermeddles with the trust property (x). Paragraph (1) (a). Express powers to appoint new trustees are construed Appointment somewhat strictly. Thus, where an express power to appoint tra^t^pg new trustees is vested in "the surviving or continuing under expres (lower. (q) Be HigginboUom, [1892] persons who arc also trustees, 3 Cli. 132. But this does not see per FxRyrET.L,, J., in Be Smith, relate to applications for the Eostich v. Smith, [1904] 1 Ch. at appointment of a judicial trustee p. 144; andsMpm, p. ^Goetseq. under the Judicial Trustees Act, (s) Be Thompson's Settlement 1896, as to which see Art. 71, Trusts, Thompson v. Alexander, infra, and Douglas v. Bolam, [1905] 1 Ch. 229. [1900] 2 Ch. 749; nor, it is (t) Be Skeats' Settlement, Skeats apprehended, to cases in which v. Evans (1889), 42 Ch. D. 522 ; a judgment for general adminis- Be Newen, Newen v. Barnes, tration has been given, as to [1894] 2 Ch. 297. which see infra, p. 379. (ti) Ilontefiore v. GiiedaUa, (r) As to the difference be- [1903] 2 Ch. 723. tween powers incident to the (x) Bearce v. Bearce (1856), 22 office and powers confided to Beav. 248. 378 The Administration of a Trust. Art. 69. " Continuing trustees or trustee." ■ Unfit and incapable,"' or •• unable to act," or going abroad. trustees or trustee, or the heirs executors or administrators of the last surviving and continuing trustee," and all the trustees are desirous of retiring, they cannot do so by appointing new trustees in their place by one deed ; but one must appoint a new trustee in the place of the first retiring trustee, and then the new trustee must appoint one in the place of the second retiring trustee, and so on (//). This singular instance of verbal subtlety all turns upon the idea that trustees who are about to retire cannot he said to be con- tinuing (z), but that if one retired first, the other would be a continuing trustee, although he might intend to retire the next day. If, in addition to the words " surviving and continuing," the words " or other trustee or trustees " had been added, the retiring trustees might have appointed new ones by the same deed (y). So, again, the words " unfit and incapable " are very strictly construed. Thus, where a new trustee was to be appointed if a trustee became " incapable of acting," it was held that the bankruptcy of one of the trustees did not fulfil the condition, as it only rendered him unjit but not incapable (a). And so where the words were " unable to act," it was held that absence in China or Australia did not disable {b), although it clearly unfitted (r), a trustee for the office. But where the power was to arise in case a trustee should "be abroad," the fact of his having taken a five years' lease of a residence in Normandy was held to Ije sufficient to enable the donee of the power to displace him((Z). So, it has been held that {y) Lord Camoys v. Best (1854), 19 Beav. 414 ; Be Coates to Parsons (1886), 34 Ch. D. 370; Ee Norris, Allen v. Norris (1884), 27 Ch. D. 333. This notion was strongly disapproved by Bacon, V.-C, in Be Glenny and Hartley (1884), 25 Ch. D. 611; but the Yicc-Chancellor'.s dicta were equally strongly disapproved by Pearson, J., in lie Morris, Allen V. Norris, supra, and by Noiixn, J., in Re Coates to Parsons, supra. {z) With regard to a])i)oint- ments made under the statutory power, this is not so, as the statute enacts tliat a continuing trustee shall include a refusing or retiiing Irustee, if williny to act, as donee of the power (Trustee Act, 181J3, s. 10 (4)); but lie is not a necessary party if unwilling to act (see Be Norris, Allen v. Norris (1884), 27 Ch. D. 333). (rt) Ttmier v. Maule (1850), 15 Jur. 761 ; see Be Watts' s Settlement (1851), 9 Hare, 106. (6) Withington v. Withington (1848). 16 Sim. 104; Be Harri- son's Trusts (1852), 22 L. J. Ch. 69 ; but see Be PignokVs Settle- ment Trusts (1872), L. R. 7 Ch. 223. (fi) Mennardr. Welford {1853), 1 Sm. & G. 426 ; and Be Harrison's Trusts (1852), 22 L. J. Ch. 69. A mere temporary absence abroad would not unfit a trustee for the otlicc {Be The Moravian Society (1858), 26 Beav. 101. (rf) Be Lord Stamford, Payne v. Stamford, [1896J 1 Ch. 288. Appointment of New Trustees. 379 lunacy disables a trustee so as to bring a power into opera- Ai't. 69. tion (c). With regard to a trustee becoming unfif to act, bankruptcy (at all events where the trust property consists of money or other property capable of being misappropriated, and where the cestiiis que trusts desire his removal (./")), and liquidation or composition (/), or conviction of a dishonest crime (g) are grounds for his removal by the court, under s. 25 of the Trustee Act, 1893 (which has taken the place of s. 147 of the Bankruptcy Act, 1883). Whether, however, they would enable a donee of a power of appointing new trustees to displace him hostilely on the ground of uujitnesn seems questionable. Anyhow, it has been held that infancy is not unfitness, although an infant will be removed by the court (/«). Lastly, with regard to incapaciti/, the word is strictly limited to incapacity of the trustee arising from some personal defect (i), as illness, lunacy (k), or, possibly, infancy. Where the power is vested in a tenant for life, he may rower exercise it even after alienating his life estate (/). On the personal and p ^ • ■ -1 °°' incident other hand, where a decree for administration by the court has to donee's been made, the donee of a power (whether express or statutory) estate. can only appoint a new trustee under the supervision of the court, which will, however, accept his nominee, unless there be strong grounds for rejecting him {)n). Parageaph (1) (b). If there be no express power, or even if there be one and Appointment the statutory power is not expressly negatived or modified {a), ^^ "^^' and the express power is for some reason inapplicable to the under the state of circumstances that has arisen, new trustees may be ^'•'*^"'°'"J' appointed under the provisions of s. 10 of the Trustee Act, (e) Be East (1873), L. R. 8 Ch. L. R. 7 Ch. 223. 735. (/t) Fe East (1873), L. R. 8 Ch. (/) See Be Barker's Trusts 735 ; A'pI)7«/,:c, [1887J W. N. 173. (1875), 1 Ch. D. 43 ; Be Adams' [1) Uardalcer v. Moorhouse Trust (1879), 12 Ch. D. 634. (1884), 26 Ch. D. 417. (g) Turner v. ^Laiile (1850), (m) Be Gadd, Eastwood v. 15 Jur. 761. Clark (1883), 23 Cli. D. 134 ; Be {h) Be Tallatire, [1885] W. N. Hall, Hall v. Hall (1885), 33 191. W. R. 508 ; Be Sales, Sales v. (i) See Be Watts's Settlement -SaZes, [1911] W. N. 234. (1851), 9 Hare, 106; Turner y. {n) Cecil v. Langdon (1884), Maule (1850), 15 Jur. 761 ; Be 28 Ch. D. 1 ; and Be Wheeler and Bignold's Settlement Trusts [1812), de Bochow, [1896] 1 Cli. 315. 380 The Administration of a Trust. Art. 69. 1893 (56 ct 57 Vict. c. 53). In that case, it has been held that the persons to exercise the statutory power are not the persons nominated to exercise the express power, but the snrviWng or continuing trustees or trustee, or the personal representatives of the last surviving or continuinf; trustee (o). This seems a rather narrow construction of the Act, the words of which are as follows : (1) Where a trustee, either original or substituted, and whether appointed by a coiu-t or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for the purpose of appointing new trustees by the instrument, if anj-, creating the trust ( p), or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being (q), or the personal representatives of the last surviving or continuing trustee (r), may, by writing (*), appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing, or being unfit or being incapable, as aforesaid. (2) On the appointment of a new trustee for the whole or anj^ part of trust property — (a) the number of trustees may be increased ; and (b) A separate set of trustees may be appointed for any pai-t of the trust property held on trusts distinct from those relating to any other part or parts of the trust property, notwithstanding that no (o) Be Wheeler and de Bochow, 511 ; but cf. Be Ambler's Trusts [1896] 1 Ch. 315. (1888), 59 L. T. 210). It is (p) ^Vh ere there was no express apprehended that aU the living power but merely a declaration executors who have not re- in a marriage settlement that nounced probate (see Granville the husband and wife and the v. McNeile (1849), 7 Hare, 156) survivor of them should have must join in the appointment, power to appoint new trustees, and not merely those who have it was held that they could actually proved, as the reason- exercise tills statutory power as ing on which the decision in Ee the persons nominated for the Pawley and London and Pro- purpose, etc. (Ee Walker and vincial Bank, [1900] 1 Ch. 58, Hughes' Contract{l8SB), 24: Ch.D. was founded in relation to the 698). Land Transfer Act is equally {q) This does not apply to applicable to this statute. Under a new judicial trustee to be Lord Cran worth's repealed Act, appointed in place of a retiring 23 & 24 Vict. c. 145, s. 27, the. judicial trustee, so as to oust the words were " the acting execu- discretion of the court: see Be tor," which have been held to Johnston, Mills v. Johnston, enable the proving executor to [1911] W. N. 234. execute the power in that Act (r) This includes the executor where still applicable (Re Bouche- of a sole trustee (Be Shafio's rett, Barne v. Erskine, |1908] Trusts (1885), 29 Ch. D. 247), 1 Ch. 180). I)ut not the executor of a person (s) Nevertheless the power who was nominated trustee of a cannot be exercised by wiU (Re will but died before the testator Parker's Trusts, [1894] 1 Ch. (Nicholson V. Field, [1893] 2 Ch. 707). Appointment of New Trustees. 381 new trustees or trustee are or is to be appointed I'or other parts Alt. 69. of the trust property, and any existing trustee may be appointed or remain one of such separate set of trustees ; or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the first-mentioned part ; and (c) it shall not be obligatory to appoint more than one new trustee where only one trustee was originallj^ appointed {t), or to fill up the original number of trustees where more than two trustees were originally appointed ; but,' except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust ; and (d) any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done. (3) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust. (4) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (5) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have efPect subject to the terms of that instrument and to any provisions therein contained. (6) This section applies to ti'usts created either before or after the commencement of this Act. This section (which is a re-enactment of s. 31 of the Con- cases in veyancing Act, 1881 (44 & 45 Vict. c. 41)), has put an end to ^^''I'di «tatu- . TiToii t cry power IS many questions which formerly presented much dimculty. exercisable. For instance, where a trustee had gone abroad, it was always a source of trouble to determine what amount of absence constituted a disability or unfitness for his continuing a trustee («). Now, however, twelve months is specified as the period. It will be seen that the power is exercisable in six cases, viz. : (1) on the death of a trustee ; (2) where he remains out of the kingdom for twelve months ; (3) where he desires to be discharged ; (4) where he refuses to act ; (5) where he is unfit to act ; and (6) where he is incapable of acting. (t) Mereidisclaimer by one of De G. & Sm. 73). two trustees does not enable the (u) See Be Harrison's Trusts other one to retire and appoint (1852), 22 L. J. Ch. 69; Re one only in his place {Earl of Bignold's Settlement Truals (1812), Lonsdale v. Beckett (1850), 4 L. R. 7 Ch. 223. 382 The Administration of a Trust. Alt. 69. Trustee residing abroad. Meaning of '•surviving or continuing trustee." The first case requires no eoiiiiiient. Witli regard to residence abroad, the twelve months means an unbroken period of twelve months (x). Whether such a person could be displaced under this power against his will would seem on the wording of the section and apart from authority to be questionable. Sub-s. 4 makes a " retiring trustee " one of the donees of the power if wiUing to act. Under an express power enabling a "surviving or continuing trustee" to appoint a new trustee in the place of a trustee dying, fioing to reside abroad, becoming incapable of acting, etc., a surviving trustee, although himself residing abroad, was held to be able to exercise the power (y). But under the statutory power it is conceived that a trustee who is being displaced either for unfitness or incapacity, or for residing abroad, is not a " retiring trustee." On the other hand, it is difficult to see, when he is one of two or more surviving trustees, why he should not fall directly within the power itself, unless the word "or " in the expression " sur^dving or continuing trustees " is to be read " and." Practically that is how the phrase has been construed with regard to express powers. In Travis v. Illingivorth (z), KiNDERSLF.Y, V.-C, Said : " A retiring trustee cannot be regarded as a surviving or continuing trustee within the meaning of the power. T. was indeed a surviving trustee because the other two were dead ; and if he had intended to continue to be a trustee, and had made the appointment to supply the places of the deceased trustees, such appointment would have been valid ; but he had resolved to retire, that is to be no longer a continuing trustee." The point came directly before North, J., in lie C'oates to Parsons (a). The learned judge there followed Travis v. Illingivorth (z), and held that apart from sub-s. 4 a surviving or continuing trustee would not confer the power on a surviving but not continuing trustee. He, how- ever, avoided deciding whether a trustee who was being dis- placed for residing abroad was a retiring trustee by holding that sul>s. 4 would not include such a person unless it is sJiouii tJiat lie was competent and willing to act, which had not been proved there. In other words he held that prima facie surviving and continuing trustees may, under the power dis- place a trustee resident abroad ; at all events unless he, being (x) Ee Walker, Summers v. (a) (1886) 34 Ch. D. 370 ; and Barrow, [1901] 1 Ch. 259. see also lie Norris, Allen v. (.y) (fEeilbjy.Alder8on{18iO), Norris (1884), 27 Ch. D. 333; 8 liaro, 101. but cf. contra. Re Glenny and (z) (18G5) 2 Dr. &i Urn. 344. U a rlley {IHHi), 25 Ch. D. Gil. Appointment of New Trustees. 383 able and willing to act, intervenes and insists upon his right Art. 69. to join in the appointment ; but the twelve months must be unbroken (/>). With regard to the third ground it is conceived that it is Trustee clearly applicable to the case of an executor who, having paid '||^s(![,'"i^ej ° debts, and funeral and testamentary expenses, has assented to a settled legacy where the testator has not appointed trustees to administer it. In such cases, where the executor has assented to the legacy, he becomes functus ofjicio qua executor, and thenceforth holds the legacy as trustee (c), and (it is submitted) can, like any other trustee, retire, and ai)point a new one in his place under the section now under considera- tion {(1). Whether, however, the section is equally applicable where the legacy is not settled (e.g., a legacy to an infant for which the executor cannot get a receipt), or where an administrator holds a share of residue, seems much more doubtful. The present writer (apart from authority) would have thought that the retention of a legacy by an executor or administrator until he can get a receipt is in his legal character of personal representative, and that no trusts having been declared with regard to the legacy, there can be no implication that he has changed his legal character of executor or administrator (whose legal duty is to pay the legatee or next of kin) for that of a trustee responsible only in equity {e). At the same time, having regard to the judgment of North, J., in Re Smith, Henderson-Roe v. Hitcliins (c), and the definition of trustee in s. 50 of the Trustee Act, 1893, the language of s. 10 seems wide enough to cover such cases. But the fact that s. 25 exjjressly forbids the court to appoint an executor or administrator seems to show that Parliament did not intend s. 10 to be applicable where legacies remain unpaid, or personal estate, of an intestate remains undistributed. The point seems, there- fore, to be too doubtful to enable practitioners to advise personal representatives to appoint trustees in their stead under s. 10. The question occasionally crops up, as to whether, where Filling up one of three or more trustees has retired under s. 12 of the \^!^^^q ^ho Act without appointing a new trustee in his place, that place has already can be subsequently filled up before another vacancy occurs. Ij^.^tioa 12. (h) See note {x), p. 382, ante. (d) Ih. ; and see also lie Moore, (c) See Ee Smith, Henderson- JIcAlpine v. Moore (1882), 21 Eoe V. ffifc/ims (1889), 42 Ch. D. Ch. D. 778; and comments 302; Be Earl of Stamford, Fayne thereon ot Kekewich, J., in V. Stamford, [1896] 1 Cli. 288; i;ato/i v, i>ames, [1894J W. N. 32. Be Willey, [1890] W. N. 1. (e) See Eaton \. JJuiues, supra. 384 Art. 69. Refusal to act as trustee. Unfitness or incapacity. Increase or reduction in numbers of trustees. Severance of trusts. The Administration of a Trust. The present writer considers the point to be very doubtful and has always declined to accept titles to real estate which depend on the validity of such an appointment. The statutory power only authorises an appointment where a trustee "is desirous of being discharged "—a phrase couched in the present tense and incapable without violence to the language of being construed as equivalent to where a trustee " has retired." If it be argued that the whole section shows an intention to enable vacancies to be filled, it is answered that this is a casus omissus. With regard to the fourth case, viz., refusal to act, it is apprehended that it clearly extends to the case of a disclaimer — i.e., to a case where the person nominated trustee has never accepted the office (/). With regard to a trustee becoming unfit to act or incapable of acting, the reader is referred to jd. 378, supra. By sub-s. 2 (a) and (c), on an appointment under the statutory power the number of the trustees may be increased or diminished so long as the number does not fall below two, unless a sole trustee was originally appointed. Thus a sole surviving trustee will not be discharged by the appointment of one only in his place. The question whether the number can be increased or diminished under a special power, depends on the interpretation of the power itself (f/); but prima facie such powers do not authorise a reduction (/<), and the court itself is generally indisposed to reduce the number unless an administration action is pending, or the fund is about to be paid into Court or is immediately divisible (i). The provision in sub-s. 2 (b) reversed the old law of the Court which forbade the severance of trusts by donees of the power of appointing new trustees, although the court imposed no such restriction on itself, but frequently appointed separate trustees of separate shares (/). The sub-section applies notwithstanding that the trusts, although separate (/) See Be Hadley (1851), 5 De G. & Sm. 67. {g) M einertzhagen v. Davis (1844), 1 Coll. C. C. at p. 341 ; Miller v. Pnddon (1852), 1 De G. M. & G. 335; Re BathursVs Estate (1854), 2 Sm. & Giff. 169. {h) See Earl of Lonsdale v. i^ec/cett (1850), 4De G. & Sm. 73 ; but cf. Tie Cunninqham andlJrad- leij to Wilson, [1877] W. N. 258 ; aud West of Englund, etc.. Bank V. Murch (1883), 23 Ch. D. 138. (i) Be Skeats' Settlement, Skeats v. Evans (1889), 42 Cli. D. 522 ; Be Newen, Newen v. Barnes, [1894] 2 Ch. 297 ; Be Gardiner's Trusts (1886), 33 Ch. D. 590. (i) See Be Cotterill's Trusts, [1869] W. N. 183 ; Be Grange, Cooper V. Todd, [1881] W. N. 50 ; Be Dennis's Trusts (1864), 12 W. R. 575; Be Cunard (1878), 27 ^V. R. 52 ; Be Moss's Trusts (1888), 37 Ch. D. 513. Appointment of New Trustees. 385 for a time, may ultimately again unite in favour of one Art. 69. individual (k). It will be perceived that paragraphs (a) and (b) are governed increase, by the opening words of sub-s. 2, viz., " on the appointment ■'^''"'^^'0". or t jjp severance or a new trustee for the whole or any part of the trust only possible property." Therefore an additional trustee cannot be "^'^ ■■^\n>ojnt- r Jr J ^ ment of new appointed except on a vacancy in the trusteeshij) (/). Nor, it trustees, is conceived, could four existing trustees of a will split them- selves into two sets, one for fund A and the other for fund B, lor there would be no appointment of a nciv trustee for the whole or any imrt of the trust property. Under the some- what different language of the Conveyancing Act, 1882, s. 5, it was considered doubtful whether an appointment of separate trustees of a separate part could be made under paragraph (b) for the mere purpose of abstracting that part from the custody of the existing trustees who were to retain the residue 0?;). But the wording of the present sub-section allowing severance on the appointment of a new trustee for the whole or any j^art of the trust property appears to put the doubt at rest. Whether, after a total extinguishment of all the trustees, new trustees can be appointed of part of the trust property, leaving the residue in the hands of the executors of the last surviving trustee, seems more doubtful, and has been answered in the negative by the Irish Courts (n). In order to get out of the difficulty of appointing an additional Questionable trustee where there is no vacancy, a questionable practice has crevice for sprung up, of one trustee X. purporting to retire, followed by additionaf the appointment of A, and B. in his place, followed again by the trustee where immediate retirement of B. and the reappointment of X. the original trustee in liis place. It is, however, difficult to under- stand how X. can be said to be a trustee " desirous of being discharged" under such circumstances. He is really only pretending to desire to be discharged, and has not the least intention of being. In the author's opinion the device savours too much of the chicanery of past generations to be relied on. Where there are joint donees of a power of appointment \y\^qyq named in the settlement, and they differ as to the person donees of to be appointed, they will be deemed to be " unable or fUfferor'one'^ unwilling " to appoint, so as to vest the statutory power in incapable, *=" ^^ "^ ^ the statutory {Jc) Be Hetheringtons Trusts (m) Savile v. Couper (1887), po^^r is (1886), 34 Ch. D. 211. 36 Ch. D. 520 ; Be 3loss's Trusts available. (l) Be Gregson's Trusts (1886), (1888), 37 Ch. D. 513. 34 Ch. D. 209; Be Driver's (n) Be Nesbitt (1887), 19 Ij. R. Settlement (1875), L. E. 19 Eq. Ir. 509. 352 ; but the court can. S. C. T. C C 386 The Administration of a Trust. Art. 69. the surviving or continuing trustees (o). So where one of several trustees has an express power of appointing new trustees and becomes hmatic, his co-trustees can appoint in his place under s. 10 (p). It has also been held, that where the trust instrument (in that case a private Act of Parliament) incorporated the corresponding power in Lord Cranworth's Act, with the addition of requiring the sanction of the court, s. 10 of the Act of 1893 is available without the sanction of the court (q). It may be observed that the statutory power is not imperative, and imposes no obligation on the donee of the power to appoint new trustees (/•) ; and that it is exercisable by an express donee, notwithstanding that the personal representa- tives of the last surviving trustee have acted as trustees (s). By s. 47 the power applies to the appointment of trustees for purposes of the Settled Land Acts. Power vested in or only exercisable with consent of a lunatic. Advantage of this procedure. Paragkaph (1) (c). "Where the pou-er of ajipointinf/ new trustees is vested in a person who is lawfully detained as a lunatic, or where the power is only exercisable with the consent of that person, the proper course is to apply to the Masters in Lunacy, by summons, to appoint a j^erson to exercise the power or to give the required consent on behalf of the lunatic {t). The master who makes the order has also jurisdiction, under s. 129 of the Lunacy Act, 1890 (53 Yict. c. 5), to make an order vesting the property in the new trustees when appointed {u). Thus, where a sole surviving trustee was a person lawfully detained in an asylum, and was the person to exercise the statutory power of appointing new trustees, it was held that the master had jurisdiction to appoint a person to exercise the power by appointing two new trustees, and to make an order vesting the trust property in the trustees so appointed. The advantage of this simple procedure appears to be, that although the court has no jurisdiction to appoint new trustees itself, and make a vesting order under ss. 135 to 142 of the (0) Be Sheppard's Settlement Trusts, [1888] W. N. 234. (p) Re Blake, [1887] W. N. 173. iq) Be Lloyd's Trusts, [1888] W. N. 20. (r) Peacock v. Colling (1885), 33 W. R. 528 ; Re Eniqhes Will (1884), 26C"h. D. 82. («) Re Routledge, Routledge v. Saul, [1909] 1 Ch. 280. (1) Be Fuller, [1900] 2 ("li. 551 ; Be ShoHridge, [1895] 1 Ch. 278 ; and s. 128 of the Lunacy Act, 1890. (u) Be Fuller, [1900] 2 Ch. 551 ; but not where the new trustees are appointed in any other way, in which case appUca- tion for a vesting order must be made to the court, as to which see Be Langdale, [1901] 1 Ch. 3, and infra, p. 403. Appointment of New Trustees. 387 Lunacy Act in substitution fur ;i luiuitic imt so jniiiid if tin; Art. 69. alleged lunatic oi:)poses the application on the ground that he is not of unsound mind (a fact which can only then be determined either by inquisition or in an action in the Chancery Division for his removal), yet, under this procedure, the mere fact that the party is lawfully detained as a lunatic, is sufficient to give the court jurisdiction. The summons in such matters ought merely to be entitled " in the matter of A.B." (the lunatic). Whether this method is still available, having regard to the new Lunacy Act, 1911 (infra), seems questionable where a vesting order is required. Paragraph (1) (d). The Lunacy Court had formerly concurrent jurisdiction Aiipoinfment with the High Court to api)oint a new trustee where an »* "f^^ , . . • , , trustees by existing one was a lunatic, whether so found or not (a-), the court.' The High Court had, however, no jurisdiction to make a vesting order as to property vested in a lunatic trustee, unless he was also an infant, or out of the jurisdiction (?/) ; and, consequently, the proper course, wdiere a vesting order was required, was, until lately, to apply to the Lunacy Court, and not to the High Court (/y). However, by the new Lunacy Act, 1911 (1 & 2 Geo. V. c. 40), this has been altered, and now^ the whole of the sections in the Lunacy Act relating to vesting orders where the lunatic is a trustee are transferred to the Chancery jurisdiction. The following are the statutes relating to the appointment of trustees by the High Court, including the cases where the trustee is a lunatic : By s. 25 of the Trustee Act, 1893, it is enacted that — statutory (1) The High Court may, whenever it is expedient to appoint a new power of trustee or new trustees, and it is found inexpedient, difficult, or impractic- '° " " able so to do without the assistance of the court, make an order for the appointment of a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee. In particular and without prejudice to the generality of the foregoing provision, the court may make an order for the appoint- ment of a new trustee in substitution for a trustee who is convicted of felony, or is a bankrupt {z). (2) An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuingtrustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated. (3) Nothing in this section shall give power to appoint an executor or administrator. {x) Lunacy Act, 1890, ss. 141 {z) The procedure by originat- 143. ing summons is applicable even {y) Be M., [1899] 1 Ch. 79 ; where the incrimiuated trustee Be Gardner's Trusts (1878), 10 refuses to retire (Be Ifanson Ch. D. 29. (1899). 48 W. E. 73). C C 2 I 388 The Ad:\iinistratiox of a Trust. Art. 69. Statutory power of Lunacy Court. Examples of cases in which application to court is proper. No donee of the power, or none capable of acting. And by s. 37 of the same Act it is enacted that — Every trustee appointed by fi court of competent jurisdiction shall, as well before as after the trust property becomes by law, or bj- assurance, or otherwise, vested in him, have the same jiowers, authorities, and dis- cretions, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust. Section 141 of the Lunacy Act, 1890 (53 Vict. c. 5), is as follows : In every case in which the judge in lunacy has jurisdiction to order a conveyance or transfer of land or stock or to make a vesting order, he may also make an order ajipointing a new trustee or new trustees. Sections 135 and 13G in effect provide, that the judge may make vesting orders whenever a lunatic is solely or jointly seised or possessed of land or entitled to stock or chose in action upon trust or by way of mortgage. Section 1 of the Lunacy Act, 1911 (1 & 2 Geo. Y. c. 40), however, now provides as follows : The powers of the judge in Lunacj- under sections 135 to 14.'5 of the Lunacy Act, 1890, as amended by any subsequent enactment, to make such vesting and other orders as are in those sections mentioned, shall, except so far as they relate to lunatic mortgagees, not being also trustees, be transferred to, and, subject to rules of the Supreme Court, be exercisable bj', the High Court, and, excejjt as aforesaid, those sections as so amended shall have effect accordingly as if for references to the judge in Lunacy there were substituted references to the High Court (ff). Application should onl}' be made to the court to appoint new trustees, in cases where, for some reason or other, it is difficult, inexpedient, or impracticable to appoint them otherwise. Thus, where the donee of a power was anxious to exercise it corruptly, the court could not under the atdiuiory power appoint over his head ; although, of course, in an action to restrain him and to administer the trust it would have been a different matter (/>). However, there are many cases in which it is inexpedient or impracticable to appoint new trustees out of court. Thus, if a last surviving or a sole trustee died intestate, and left no personal estate, so that no one could take out letters of administration to him, and no one was named in the settle- ment to appoint new trustees, it was formerly necessary to apply to the High Court. But probably this is no longer soy as the Land Transfer Act, 1897 (GO & Gl Vict. c. 65), s. 1 (3), enables letters of administration to be granted in respect of (a) The practice is the same ment (1851), 9 Hare, 118; and as under the Trustee Act ; and the summons is intituled in the matter of the trust, and of the 'I'lustee Act, and of the Lunacy Acts, 1890 to 1911. (b) See Re Uodson's Settle- cf. Middleion v. Reay (1849), 7 Hare, 106. But where the donee neglects to a])point seciis {Finluy V. Howard (1842), 2 Dru. & War. 490). Appointment of New Trustees. m) real estate alone. And so where a trustee hasj become, through old age and infirmity, incapable of acting in the trust, the court has exercised its jurisdiction of appointing new trustees (d). Again, where, by inadvertence, or by reason of disclaimer, death, or otherwise, there never were any original trustees of the settlement, and no express power of appointing any, the court will appoint some (e). So, where a trustee is an infant, the court will appoint another in his place ; but this will be done without prejudice to any application by the infant, on coming of age, to be restored (/). So, if there be a doubt whether the statutory (or an express) power applies, the court will solve it by appointing new trustees itself (.r/). So, where it is desirable to increase the number of trustees without waiting for a vacancy, the court can do it(//), although the donees of the statutory power cannot. So it has been held that where the power of appointing new trustees is given to a husband and wife jointly, and they are judicially separated (i), or where the donees of the power cannot agree upon the choice of the new trustees, the court will appoint. But see as to this supra, p. 885. Again, where a last surviving trustee has died, and tbere is no personal representative of him, the court cannot make a vesting order except in connection with an order for the appointment of new trustees. Consequently, that is a case where " it is inexpedient " to a2)point without the assistance of the court {k). Where a trustee is a felon, or a bankrupt, and refuses to join in the appointment of a new trustee in his place, the court can and will remove him, and appoint another person if the beneficiaries desire it(/); and a similar observation power contained in s. 10 of the Act {Be Tallatire, [1885] W. N. 191 ; sed. qucere, see Be Gartside's Estate (1853), 1 W. R. 196). (9) Be Woodgnte's Settlement (18'56), 5 W. R. 448. (h) Be Gregson's Trusts (1886), 34 Ch. D. 209 ; and see Be Driver's Settlement (1875), L. R. 19 Eq. 352 ; Ex jyarte Tunstall (1851), 4DeG. & Sm. 421. (i) Be Somerset, [1887] W. N. 122. (k) See note (u), p. 402, infra. (I) Coombes v. Brookes (1871), L. R. 12 Eq. 61 ; Be Adams' Trust {d) Be Lemann's Trusts (1883), 22 Ch. D. 633 ; Be Phelps' Settlement Trusts ( 1885), 31 Ch. D. 351. (e) Bodkin v. Brunt (1868), L. R. 6 Eq. 580 ; Viscountess D'Adhemar v. Berirand (1865), 35 Beav. 19 ; Be SmiHhwaite' s Trusts (1871), L. R. 11 Eq. 251 ; Be Davis' Trusts (1871), L. R. 12 Eq. 214 ; Be Moore, McAlpine V. 3Ioore (1882), 21 Ch. D. 778 ; Be Williams' Trusts (1887), 36 Ch. D. 231. (/) Be Shelmerdine (1864), 33 L. J. Ch. 474. An infant cannot be displaced under the statutory Alt. 69. Appointment by foil It wlion; lilt original trustees. Appointment by court where trustee iin infant. Appointment by court in ea.ses uf duiibt. Appointment by court when? the donees of power cannot agree. Where last surviving trustee has left no represen- tative. Appointment by court where trustee a felon or bankrupt. 390 The Administration of a Trust. Art. 69. Trustee charged with breach of trust ap- pointing a new trustee against plaintiff's wishes. .Summary procedure only applic- able where trust is clear. applies to a trustee who has hecome a lunatic (m), or has gone to reside permanently al)road {)i), or has absconded. AVhere a trustee, charged with breach of trust, appointed a new trustee against the plaintiff's wishes, both were removed (o) ; and a similar course was followed jvhere the donee of the power appointed a new trustee because the old one would not commit a breach of trust (jj). Indeed the court will remove a trustee and appoint a new one in his stead where the only complaint against him is that, from faults of temper, it has become imi^ossible to transact the trust business with him. This sometimes appears to be a slur upon a perfectly honest but impracticable trustee ; but, as Lord Blackburn said in Letterstedt v. Broers{q), "In exercising so delicate a juris- diction as that of removing trustees, their lordships do not venture to lay down any general rule, beyond the very broad principle that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on details often of great nicety. ... It is true that friction or hostility between trustees and the immediate possessor of the trust estate, is not of itself a reason for the removal of trustees. But where the hostility is grounded on the mode in which the trust has been administered, ... it is certainly not to be dis- regarded. ... If it appears clear that the continuance of a trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give the trustee a benefit or otherwise, the trustee is always advised by his counsel to resign and does so. If without any reasonable ground, he refuses to do so, it seems to their lordships that the court might think it proper to remove him." The regular procedure for the appointment of new trustees by the court under the statutory jurisdiction, is by originating (1879), 12 ("h. D. 634; Re Foster's Trusts (1886), 55 L. T. 479 ; Fe JJanson ( 1899), 48 \V. R. 73. (m) If a vesting order is also required the application must be made to the Lunacy Court (Re M., [1899] 1 Ch. 79), unless the lunatic is out of the jurisdiction (Re Gardner's Trusts (1878), 10 Ch. D. 29). (n) Ee Bignold's Settlement Trusts (1872), L. R. 7 Ch. 223. As to the length of absence abroad, see Hutchinson v. Stejihens (1834), 5 Sim. 498. (o) Peatfield v. Benn (1853), 17 Beav. 522. (p) Pepjier v. Tuckey (1844), 2 Jo. & Lat. 95. ((/) (1884) 9 App. Cas. 371 at p. 387 ; and see Earl of Ports- mouth V. Fellowes (182U), 5 Madd. 450. Appointment of New Trustees. 891 summons (r) ; but it would seem that where the trust is Ai't. 69. not clear on the face of written documents {e.g., where a con- veyance is taken in the name of some other person than the real purchaser (s) ), the court first requires the trust to be established to its satisfaction, and that can only be done by an action. It was at one time thought that where there were pro- court will not perly appointed trustees in existence, and it was impossible gxlstin"'*^ otherwise to vest the trust property in them, or where it trustees, was desirable to remove one of several trustees and impossible to get any one to serve in his place, the court could, in the one case, reappoint all the existing trustees and order the trust property to vest in them ; or, in the other case, reappoint the continuing trustees in the place of themselves and the trustee whom it was desired to remove. However, it is now well settled that the court has no jurisdiction to reappoint existing trustees {t). Although s. 25 (3) of the Trustee Act, 1893 (56 & 57 Vict. Appointing c. 53), expressly prohibits the court from appointing an perform Ihe executor or administrator, yet where a testator has not duties inci- appointed a trustee of trust legacies, (and, consequently, the ^j executor, trusteeship is incident to the office of executor,) the court has jurisdiction, (the debts, funeral and testamentary expenses having been paid and the executor having assented to the legacy), to appoint some one to perform those fiduciary duties in his place (»). Paragraph (2). As above stated, every new trustee has the same powers. Only such authorities, and discretions as if he had been an original Jo ^ew ^'"'^^^ trustee. This, however, only applies to powers, authorities, trustees and discretions which, on the true construction of the trust fn^tdent to as are incidei the office. (r) R. S. C, Order 54. Even overruling Be Bathbone (1876), where tlie trustee whom it is 2 Cli. D. 483 ; Be DalgleisWs desired to displace opposes (Be Settlement (1876), 4 Ch. D. 143; Danson (1899), 48 W. R. 73). and Be Crowe's Trusts (No. 2) (s) Be Martin's Trusts, Land, (1880), 14 Ch. D. 610. etc.. Improvement Co. v. Martin (u) Be Moore, McAlpine v. (1887), 34 Ch. D. 618; and see 3Loore (1882), 21 Ch. D. 778; also Be Carpenter (1854), Kay, Eaton v. Daincs, [1894] W. N. 418, and Be Weedinefs Estate 32; and 7?*^ 11'//%, [1890] W. N. (1858), 4 Jur. (n. S.) 707. 1 ; Be Lord Stamford, Paipie v. (t) Be Vicat (1886), 33 Ch. 1). Stamford, [1896] 1 Cli. 288 ; and 103; Be DewMrsfs Trusts {IS8G), see trustee Act, 1893 (56 & 57 33 Ch. D. 416; Be Gardiner's Vict. c. 53), s. 50 (interpretation Trusts (1886), 33 Ch. I). 590; of "trust" and "trustee,") Be BatJio (1888), 39 Ch. D. 189, And see also supra, p. 383. 892 The Administration of a Trust. Alt. 69. instrument, are incident to the office, and not to mere naked powers given to the original trustees persouall}'. The same principles are applicable to this as those already discussed under Ai't. 64 in relation to the survivorship of powers on the death of one of several trustees. General principles as to pei-sons jpioper to be appointed new trustees. Pcrtons proper to be appointed new trustees. Appointment by the donee of the power of himself. Paragraph (3). In selecting persons to be new trustees, the court acts upon the following principles, and it is apprehended that donees of powers ought to be guided by the same considerations, although, no doubt, their appointments would not be invalidated if they failed to observe them. First, regard will be paid to the wishes of the settlor as exj)ressed in, or plainly deduced from, the settlement. Secondly, a person will not be appointed with a \iew to the interest of some of the beneficiaries in opposition to the interest of others. But it is not proper to appoint new trustees without communicating with the beneficiaries and hearing their objections ; at all events where it is likely that they would object (x). Thirdly, regard will be had to the question whether the ajjijointmeut will promote or impede the execution of the trust ; but isemhle) the mere fact of a continuing trustee refusing to act with the proposed new trustee will not be sufficient to induce the court to refrain from aj^pointing him(?/). With reference to the question as to the personal fitness of a proposed new trustee, an infant can, no doubt, be api^ointed an original trustee, but it would not be a wise appointment ; and a retiring trustee most certaiul}^ ought not to concur in the appointment of an infant to replace him. For an infant cannot properly carry out a special trust during his minority, and a person who should appoint one might not improlmbly find that he would have to pay the costs of an action instituted for the purpose of removing the infant {z), as he cannot be supplanted as "unfit" by the appointment of a new trustee under s. 10 of the Trustee Act, 1893 (56 & 57 Vict. c. 53) (a). It is not perhaps quite settled to what extent the donee of a (x) Marshall v. Sladden (1849), 7 Hare, 428; S. C. (1851), 4 De fr. & Sni. 468; and O'Reilly V. Aldtrson (1849), 8 Hare, lUl. {y) Re Tempest (18(3C), L. 11. 1 Ch. 485. {z) See Raikes v. Raikes ( 1863), 32 Beav. 403. (a) Re Tallatire, [188oj \V. N. 191. Appointment of New Trustees. 393 power of appointing new trustees can appoint himself. It Ait. 69. would seem that the statutory power does not authorise such an appointment, as it only empowers the appointment of " some other person," which has heen held to mean some other person than the appointor (h), although it would seem to the present writer more aj^tly applicable to some other person than the trustee dead, retiring, etc. But where there is a special power "to appoint a new trustee or new trustees," it has been held that the donee of the power is capable of appointing himself {h) , although he ought not to do so except under very special circumstances, and perhaps not without the sanction of the court (c), Kekewich, J., however, in Re Sampson, Sampson v, Sampson (h), stated that in his opinion the case of Montefiorc v. Guedalla{d), affirming the validity of such an appointment, would require reconsideration at some future time ; a dictum which has made it somewhat difficult to advise such appointments without the sanction of the court. Anyhow, where the only power is the statutory power or a si^ecial power in similar terms, the only course is to ask the court to make the appointment. A tenant for life has been held to be not improj)erly Appointment appointed {e) ; but such an appointment is certainly not iife*Jo'^be ^^ advisable. For one of the main objects of a trustee is to trustee, protect the remainderman against the tenant for life. It has been held (/) that a remainderman is not a person Appointment whom the court will appoint, at all events where there is an "^ remamder- . . man. infant tenant for life. For the interest of a person entitled in remainder is somewhat opposed to that of a tenant for life; and it would be for his advantage to lay out trust money in making improvements on the property, instead of making accumulations for the benefit of the tenant for life. Of course, however, such an objection would be inapplicable where a tenant for life is sui juris and consents to the appoint- ment. And under special circumstances the court will appoint a beneficiary (g) . The solicitor to the trust is not a proper person to be Appointment appointed a new trustee. Such an appointment would not, °^ the'^trust {b) Be Sampson, Sampson v. and Be Newen, Newen v. Barnes, Sampson, [1906] 1 Cli. 435. [1894] 2 Ch. 297 ; Be ShoHridge, (c) llontefiore v. Gtcedalla, [1895] 1 Ch. 278. [1903] 2 Ch. 723; and Tempest (e) Forster \. Abraham {1814:), V. Lord Gamoys (1888), 58 L. T. L. R. 17 Eq. 351. 221. (/) Be Paine's Trusts (1885), (cZ) [1903] 2 Ch. 723; and Be 33 W. R. 564. Skeats' Settlement, Skeats v. (i, Thompson v. Alexander (//), Swinfen Eady, J., held that a company could be appointed one of several trustees under a power the words of w'hich authorised the appointment " of a new trustee or new trustees." It is apprehended that the statutory power contained in s. 10 of the Trustee Act, 1893, equally authorises the appointment of a company, as although that section empowers the appointment of " another person or other persons," yet by the Interpretation Act, 1889 (52 & 53 Vict. c. 63), the word person in an Act of Parliament includes a corporation. Whether, however, the same result would follow under a special power in similar terms seems somewhat doubtful. Paragraph (4). An illustration of this paragraph of the present article is afforded by the case of Pearce v. Pearce (z). There A. and B. were trustees. A deed was prepared appointing C. a new trustee in place of B. This was executed by C. ; but by inadvertence it was not executed by the donees of the power. It was therefore invalid. The trust fund was nevertheless transferred from the names of A. and B. into those of A. and C. Afterwards A. and C. authorised the husband of the life tenant to receive the fund, and it was lost. It was held that both B. and C. were liable — B. because he had never ceased to be a trustee, and had yet denuded himself of the trust property, and C. because she had intermeddled with trust pro- perty, and therefore becaine a constructive trustee. Whether B. would now get relief under such circumstances under s. 8 of the Judicial Trustee Act, 1896, is, of course, another matter, depending on his reasonableness and honesty. Art. 70. — -r^.sY/;/// of Trust Propertii in Xeir Tnifitfes. (1) On a change in the trusteeship, out of court, the trust property should be vested jointly in the iy) [1905] 1 Ch. 22oint trustees, that declaration shall, without an)' conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants, and for the purposes of the trust, the estate, interest, or right to which the declaration relates. (3) This section does not extend to any legal estate or interest in copyhold or customary land, or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share, stock, annuity, or property as is only transferable in books kept by a company or other body, or iu manner directed by or under Act of Parliament. (4) For purposes of registration of the deed in any registry, the person or persons making the declaration shall be deemed the conveying party or parties, and the conveyance shall be deemed to be made by him or them under a power conferred by this Act. (5) This section applies only to deeds executed after the thirty-first of December one thousand eight hundred and eighty-one. It will be perceived that the declaration must be contained in tJie deed by which tJie new trustee is ajypointed. With regard to the property which does not pass by a vesting declaration, copyholds must be vested by surrender and admittance in the usual way. Mortgages are invariably transferred without disclosing the trust, so as to keep it off the face of the mortgagor's title. Stocks, shares, etc., are transferred by deed of transfer, duly registered with the bank or company. Vesting of Trust Property in New Trustees. 390 Paragraphs (1) (c), (2). Art. 70. The jurisdiction of the Chancery Division to make orders Vesting vesting trust property in any part of His Majesty's dominions ^,11 n,e "^^*^ '^ except Scotland (e) in the trustees for the time being of a chancery- settlement is codified in ss. 26, 32, 34, 35, and 36 of the the cmn-tV). Trustee Act, 1893 (56 & 57 Vict. c. 53). Similar powers are conferred on the Lunacy Court, where a trustee has become lunatic or of unsound mind, by ss. 129, 135, and 136 of the Lunacy Act, 1890 (53 Vict. c. 5)(d). The sections of the Trustee Act, 1893, above referred to are set out below, and for the sake of convenience the writer's comments are placed in footnotes. 26. In any of the following cases, namely : (i.) Where the High Court appoints or has appointed (c) a new trustee (/) ; and (ii.) Where a trustee (^) entitled to or possessed of any land(//), or Trustee Act, 189.3, s. 2(j. As to vesting orders vclat- iiis; to land. (c) Sect. 41 of the Trustee Act, 1893 (56 & 57 Vict. c. 53). See Be Hewitt's Estate (1858), 6 W. R. 537, and Be Lamotte ( 1876), 4 Ch. D. 325. Similar powers were given to the Irish courts by the Trustee Act, 1893, Amend- ment Act, 1894 (57 & 58 Vict. c. 10). (d) See infra, p. 404. (e) See Be Kenny's Trusts, [1906] 1 Ir. E. 531. (/) It is apprehended that the intention of the legislature was that each of these paragraphs should stand alone, and that the circumstances enumerated in each should give jurisdiction to make a vesting order. That was so under the Trustee Act, 1850, and the court made vesting orders on the appointment of new trustees, even though there was no incapacity in the person in whom the estate was vested to convey it to the new trustees {Be Manning's Trusts (1854), Kay, App. xxviii. ; Hancox v. Spittle (1857), 3 Sm. & G. 478). However, in the new section, the language is not very happy, as, if we read paragraph (i.), and omit paragraphs (ii.) to (vi.), there is nothing to show to what the words " the land," which is to be vested, refer. {g) The word " trustee " in- cludes a constructive trustee, e.g., the heir of a testator whose trustees have predeceased him or disclaimed ( Wilks v. Groom ( 1856), 6 De G. M. & G. 205 ; and see Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 50. {h) It is apprehended that " land " includes leaseholds ; for it was stated in the memoran- dum annexed to the bill that the words " entitled to or possessed of " were substituted for the words " seised or possessed of " (which were used in the Act of 1850), for the express purpose of including leaseholds. See also s. 50, where land is defined as including land of any tenure. The matter might, however, with advantage, have been made plainer. Under the old Act there was no power to vest lease- holds, except on the appointment of new trustees by the court. The corresponding section of the Lunacy Act, 1890, contains the old words " seised or possessed," and consequently it seems ques- tionable whether the lunacy- judges have power to make vesting orders of leaseholds. As to whether the court has jurisdiction to vest the right to the title deeds, see De Soyres v. De Soyres (1889), 87 L. T. Journal, 93. 400 The Administration of a Trust. Art. 70. entitled to a contingent right therein, either solely or jointly (i) with any other person, — (a) is an infant (A-), or (b) is out of the jurisdiction of the High Court (/), or (c) cannot be found ; and (iii.) "UTiere it is uncertain who was the survivor of two or more trustees jointly entitled to or possessed of any land ; and (iv.) Where, as to the last trustee known to have been entitled to or possessed of any land, it is uncertain whether he is living or dead ; and (v.) Where there is no heii- or personal representative to a trustee (?n) who was entitled to or possessed of land and has died intestate as to that land, or where it is uncertain who is the heir or personal representative or devisee of a trustee who was entitled to or jiossessed of land and is dead ; and (vi.) Where a trustee jointly or solely entitled to or possessed of any land, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the land or a release of the right, to convey the land or to release the right, and has wilfully (n) refused or neglected to convej' the land or release the right for twenty-eight days after the date of the requirement ; the High Court may make an order (in this Act called a vesting order) vesting the land in any such person in any such manner and for any such estate (o) as the Coiu't may dii-ect, or releasing or disposing of the contingent right to such person as the Court may direct. Provided that — (a) Where the order is consequential on the appointment of a new (i) The word " jointly " is (n) A trustee's conduct in not not to be construed strictly. It conveying, cannot be considered includes coparceners {Be Green- wilful, if the title of the applicant wood's Trusts (1884), 27 Ch. D. to call for a conveyance is sub- 359). ject to a dispute which leads the (k) Even if the infant be also trustee to entertain a bond fide a lunatic, this gives the Chan- doubt as to his title {Re Mills' eery Division jurisdiction. See Trusts (1888), 40 Ch. D. 14). Lunacy Act, 1890 (53 Vict. c. 5), But if he has acted unreason- s. 143. ably he may have to pay the {I) A merely temporary costs {Be Knox's Trust, [1895] absence {e.g., that of a sailor 1 Ch. 538, affirmed, [1895] 2 Ch. on a voyage) is not sufficient 483). The summons must not {Flutchinson v. Stephens (1834), be even issued until the twenty- 5 Sim. 498). On the other hand, eight days have elapsed {Be where a person out of the juris- Knox's Trust, supra). diction is a lunatic, this para- (o) Under these words the graph gives to the Chancery court can vest the estate of a Division a jurisdiction which in tenant in tail in a purchaser in the case of a lunatic in England fee simple, but it usually appoints would be only exercisable by the some person to execute a regular lunacy judges {Re Gardner's disentailing assurance under Trusts (1878), 10 Ch. D. 29). s. 33. See Gaswells v. Sheen, (m) See Be Williams' Trusts, [1893] W. N. 187 ; Powell v. (1887), 36 Ch. D. 231; Be Back- Mattheivs (1855), 1 Jur. (n. S.) straw's Trusts (1885), 52 L. T. 973; Mason v. Mason (1878), 612 ; Be Pilling' s Trusts (1884), 7 Ch. D. 707. 26 Ch. D. 432. Vesting of Trust Property in New Trustees. 401 trustee the land shall he vested for such estate as the Court may direct iu the persons who on the appointment are the trustees ; and (b) AVhere the order relates to a trustee entitled jointlj' with another person, and such trustee is out of the jui'isdictiou of the High Court or cannot be found, the land or right shall be vested in such other person, either alone or with some other person. 32. A vesting order under any of the foregoing j^rovisions shall in the case of a vesting order consequential on the appointment of a new trustee, have the same effect as if the persons who before the appoint- ment were the trustees (if any) had duly executed all proper con- veyances of the land for such estate as the High Court directs, or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate as the court directs, and shall in every other case have the same effect as if the trustee or other person or description or class of persons to whose rights or supposed rights the said provisions respectively relate had been an ascertained and existing person of full capacity, and had executed a conveyance or release to the effect intended by the order. 33. In all cases where a vesting order can be made under any of the foregoing provisions, the High Coixrt may, if it is more convenient, appoint a person to convey the land or release the contingent right, and a conveyance or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision. 34. — (1) Where an order vesting copyhold land(p) in any person is made under this Act with the consent of the lord or lady of the manor, the land shall vest accordingly without surrender or admittance. (2) Where an order is made under this Act appointing any person to convey any copyhold land, that person shall execute and do all assurances and things for completing the assurance of the land ; and the lord and lady of the manor and every other person shall, subject to the customs of the manor and the usual payments, be bound to make admittance to the land and do all other acts for completing the assurance thereof, as if the persons in whose place an appointment is made were free from disability and had executed and done those assurances and things. 35. — (1) In any of the following cases, namely : (i.) Where the High Court appoints or has appointed () lb., (2) (f) and (g). (2). Special Kules Belating to the Public Trustee. 423 and other matters, and act on credible information Art. 76. (though less than legal evidence) of facts (.s). (8) The Public Trustee may make advances out of public money for the purposes of any trust estate (semhle of which he is trustee) (t) . (4) The entry of the name of the Public Trustee in the books of a company does not constitute notice of the trust, nor is any one afi'ected with notice of a trust by the mere fact of dealing with the Public Trustee {u) . (5) The Public Trustee is bound to keep a register of every trust of which he is trustee (.r) and to allow any beneficiary to inspect it, and at their expense to furnish them with copies of the register or of any account, notice, or document in his possession relating to their trust, but otherwise he is bound to observe complete secrecy {ij). At present no rules have been made under the 10th section Procedure for appeahng from a decision of the Pubhc Trustee to a judge, amjoaffroni But Mr. Justice Joyce recently stated {z) that it was high time decisions of they were. In the meantime it seems that the proi3er procedure trustee is by originating summons in the chambers of any judge of the Chancery Division (ci), and that the Public Trustee should not be sued (b), although the opinions of Joyce and Parker, JJ., on this point appear to be in conflict (c). Probably this (piestion will be settled by the rules when made. Anyhow it is open to the court to invite him to state his opinion. The Public Trustee ought to hear the parties, before deciding a point judicially against them, if they desire to be heard (), having regard to the circumstances of each particular case (c), but without interest {d), unless he has paid an interest-bearing claim, in which case he stands in the shoes of the creditor by subrogation {c). (2) Although, as between the beneficiaries, such expenses are generally payable out of capital ( /), the trustee has a lien for them, on both capital and income {g), in priority to the claims of the beneficiaries {h). (3) Where the only beneficiary is a person sui juris, who himself created the trust, the right of the trustee to indemnity against liabilities incident to the legal ownership of the trust property, is not limited to that (a) Be Earl of Winchilsea's 554. Policy Trusts (1888), 39 Ch. D. (/) Carter v. Sebright (1859), 168. 26 Beav. 374. (6) Trustee Act, 1893 (56 & 57 {g) 8tott v. Milne (1884), 25 Vict. c. 53), s. 24 ; Worrall v. Ch. D. 710 ; Ex farte James, Harford (1802), 8 Ves. 4; Be Be Davis (1832), 1 Deac. & C. Oerman Mining (Jo., Ex farte 272 ; Be German Mining Co., Ex Chippendale (1854), 4 De G. M. parte Chip2->endale {1854), 4 Be Gr. & G. 19. M. & G. 19 ; and see Walters v. (c) Leedhamv.Chawner (1858), Woodbndge (1878), 7 Ch. I). 504. 4 Kay& J. 458. (h) Dodds v. Take (1884), 25 (d) Gordon v. Trail (1820), Ch. D. 617 ; Mathias y . Mathias 8Pr. 416. (1858), 3 Sm. & G. 552; Be (e) Be Beulah ParTc Estate Griffith, Jones v. Owen, [1904] (1872), L. R. 15 Eq. 43 ; Finch 1 Ch. 807. V. Pescott (1874), L. R. 17 Eq. 430 The Administration of a Trust. Art. 78. property, but is enforceable in equity against the — beneficiary personally, unless he is in a position to disclaim the property (/). (4) Where a trustee has committed a breach of trust, he will not be allowed his expenses until he has made good the breach (j). (5) A person against whose claims the trustee is, by the settlement, entitled to be indemnified, is allowed to stand in the trustee's place, by way of subrogation, against the fund which the settlor has expressly dedicated for the purpose (h). Damages recovered by third parties. Calls on shares. Paragraph (1). In Brnctt V. Wijndham (I) , a trustee, in the due execution of his trust, directed a bailiff, employed on the trust property, to have certain trees felled. The bailiff ordered the wood- cutters usually employed on the property to fell the trees. In doing so they negligently allowed a bough to fall on to a passer-by, who, being injured, recovered heavy damages from the trustee in a court of law. These damages were, however, allowed to the trustee out of the trust property. So where a trustee of shares has been obliged to pay calls upon them, he is entitled to be reimbursed (m) ; and the right to be indemnified accrues directly the liability is proved to exist (n). However, there must be some proof that the liability is not merely imaginary ; for a person entitled to be indemni- fied cannot claim a declaration of his right to indemnity before the contingency which creates the damage has arisen (o). Therefore, although a trustee may, as such, be a member of a company which is being wound up, he cannot bring an action (i) Hardoon v. Belilios, [1901] A. C. 118. The previous cases at law, such as Hosegood v. Pedler (1896), 66 L. J. Q. B. 18, are inapplicable, the right being peculiarly an equitable one. Cf. Jervis v.^Wolferstan (1874), L. R. 18 Eq. at p. 24 ; Fraser v. Murdoch (1881), 6 App. Cas. at p. 872 ; Re German Mining Co., Ex parte Chippendale (1854), 4 De G. M. & G. 19, 54 ; Hobhs V. Wayet (1887), 36 Ch. D. 256. (j) Re Knott, Bax v. Palmer (1887), 56 L. J. Ch. 318. (k) See cases cited infra, pp. 439, 440, notes (x), {y) and {z). (l) (1862) 4 De G. F. & J. 259 ; and see Be Baybould, Raybould v. Turner, [1900] 1 Ch. 199. (m) James v. May (1873), L. R. 6 H. L. 328 ; 2?e National Financial Co., Ex parte Oriental Commercial Bank (1868), L. R. 3 Ch. 791 ; Fraser v. Murdoch (1881), 6 App. Cas. 855. See also, as to right of executor to recover calls from a residuary legatee, Re Kershaw, Whitaker V. Kershaw (1890), 45 Ch. D. 320. (n) Hobbs v. Wayet (1887), 36 Ch. D. 256. (o) See next note. Eight to Eeimbursement and Indemnity. 431 to establisli his right to an indemnit}^ unless he can establisli Art. 78. the fact that calls muHt be made (jj). And where the court makes an order for the distribution of a trust fund it will not set aside any part of the fund to indemnify the testator's executors against i)ossible liabilities which may arise in respect of leases formerly held by him, unless there is privity of estate between the executors and the lessors (q). So where trustees or executors have rifjhily carried on a indemnity business in accordance with the provisions of a will or settle- f'^"" I'^biimes ^ . incuneci in ment, they are entitled to be indemnified out of the trust carrying on estate against any liabilities which they have properly ^^^^^ ^^^^' incurred (r). And this right will prevail even against creditors of the testator himself if they have assented to the business being carried on in the interest as well of themselves as of the beneficiaries under the will (r). But where the settlement has directed a trustee to employ a specific portion only of the estate for the purpose of carrying on the business, the rule is that, although the trustee is personally liable to creditors for debts incurred by him in carrying on the trade pursuant to the settlement, his right to indemit}^ is limited to the specific assets so directed to be employed (.s). A trustee or executor will be allowed the amount of a Solicitors solicitor's bill of costs which he has paid for services rendered °°^*^" in the matter of the trust (t) ; even, it would seem, where the necessity for the services arose through want of caution on the part of the trustee : e.g., where proceedings had to be taken by an administrator against an agent to whom he had entrusted money to make payments {u). However, under the Solicitors Act (6 & 7 Vict. c. 73), s. 39, beneficiaries may, at the dis- cretion of the court, obtain an order to tax the costs of the trustee's solicitor (x). Unless trustees have been guilty of misconduct, they are Costs of entitled to their costs of an action for the administration of the fiVn TuU,'^'^' trust as between solicitor and client, and not merely as between together with " costs, charges, and {f) Hughes -Hallett v. Indian to be placed in the shoes ot the expenses." Mammoth Gold 3Iines Co. {1882), trustee by way of subrogation, 22 Ch. D. 561. see infra, p. 439 et seq. iq) Be Nixon, Gray v. Bell, (t) Macnamarav. Jones {11 8i), [1904] 1 Ch. 638. Dick. 587. {r) Dowse v. Gorton, [1891] {u) Be Davis, Muckalty. Bavis A. C. 190 ; Be Evans, Evans v. [1887] W. N. 186, sed quaere. Evans (1887), 34 Ch. D. 597. {x) But see Be Wellborne, {s) Be Johnson, Shearman v. [1901] 1 Ch. 312. As to the Bobinson (1880), 15 Ch. D. 548; principle on which such taxa- Be Webb, Leedham v. Patchett tions should proceed, see Be (1890), 63 L. T. 545. As to the 3£iles, [1903] 2 Ch. 518. right of creditors of the business 432 The Administration of a Trust. Art. 78. Deprivintr trustees of costs of litigation. Costs of trustees who have com- mitted a breach of trust. party and party {y) ; and, iu addition thereto, any other costs, charges, and expenses properly incurred by them in the execution of the trust. Where, however, the court, on the hearing of a summons for administration, " does not think fit to make any order as to costs," that is merely a euphemistic way of depriving the trustees of their costs of the summons, and they cannot after- wards claim them as " costs, charges, and expenses " incurred in the execution of the trust {z). To deprive a trustee of his costs has, however, been called " a violent exercise " of the court's discretion (a) ; and, contrary to the usual rule of the court, an order depriving a trustee of costs, or limiting him to a particular fund, is appealable by him on that ground {h). On the other hand, if he be allowed costs, the beneficiaries cannot appeal against such allowance (c). Nevertheless a trustee who acts unreasonably, may not only be deprived of costs, but be ordered to pay those of the plaintiff. For instance, in one case, a trustee whose trust had become a simple trust, and who neglected for twenty-eight days after demand to transfer the trust property to the beneficiary, was not only deprived of costs, but ordered to pay those of the plaintiff ((Z). Where the sole object of a suit is to make trustees answer- able for breach of trust, and a judgment to that effect is obtained, the trustees will not only not get their costs allowed, but will almost invariably have to pay the costs of the plaintiffs up to the judgment {c). The costs subsequent to the judgment will be in the discretion of the judge, who may disallow the trustee his costs if he considers that, but for the trustee's mis- conduct, there would have been no need for the action at all (/). And the same result will follow where the conduct of a trustee is vexatious or oppressive (f/), or unreasonably cautious (A). (y) Be Love, Tlill v. Spurgeon {1885), 29 Ch. D. 348. {z) Be Hodgkinson, Hodgkin- 8011 V. Hodgkinson, [1895] 2 Ch. 190. (rt) Birks V. Micklethwait (1864), 34 L. J. Ch. 362. (6) See Be C'hennell, Jones v. (Jhennell (1878), 8 Ch. D. 492; Be Love, Hill v. Spurgeon (1885), 29 Cli. D. 348 ; Be KnigMs Will, (1884), 26 Ch. D. 82. (c) Charles v. Jones (1886), 33 Ch. D. 80. (d) Be Knox's Trust, [1895] 2 (^h. 483 ; and to same effect, Be Buddock, Newberr)/ v, Mansfield (1910), 102 L. T. 89 (C. A.). (e) Per Lord Langdale, Byrne V. Norcott (1851), 13 Beav. 336 ; Gough V. Etty (1869), 20 L. T. (n. s.) 358 ; Easton v. Landor (1892), 67 L. T. 833. (/) Easton v. Landor, supra. (g) See Marshall v. Sladden (1851), 4 De G. & Sm. 468; Patterson v. Wooler (1876), 2 Ch. D. 586; Ait.-Gen. v. Mur- doch (1856), 2 Kay & J. 571; Palairet v. Carew (1863), 32 Beav. 564 ; Griffin v. Brady (1869), 39 L. J. Ch. 136. (h) Smith V. Bolden (1863), 33 Beav. 262 ; Be Cull's Trusts Eight to Reimbursement and Indemnity. 433 But where an administration action is necessary apari from the Art. 78. breach of trust, and the latter only forms an incidental feature of the action, or where although there has been a technical breach of trust no loss has ensued (i), the trustee will, as a rule, be allowed his general costs of the action as between solicitor and client, although where loss has been incurred he may have to pay the special costs caused by the breach (/t). If trustees are co-plaintiffs or co-defendants, they ought. One set of except under special circumstances, to sue or defend jointly (/), f"^*^^ ""'^ and will only be allowed one set of costs between them (m), to where be apportioned by the taxing master (u) ; and if a trustee un"jfeasoQabi improperly refuses to join his co-trustee as plaintiff, and con- sever, sequently has to be made a defendant, he may be deprived of costs altogether (»t). But, on the other hand, where, owing to one trustee being also a beneficiary, it is necessary that one should be plaintiff, and the other defendant, they will each be allowed separate sets of costs as between solicitor and client (o); and the same rule prevails where one of the trustees is attacked hostilely, in which case he may employ two counsel (p). It has been held that a trustee is entitled to be reimbursed other costs of former trustees, paid by him to their personal repre- ^"stances of sentatives previously to the latter transferring the trust charges, and estate (g). He is also entitled to be reimbursed costs *fiQ^"jfj^ incurred by him previously to his appointment in obtaining trustees. a statement of the trust property and ascertaining that the power of appointing new trustees was being properly exercised (r) ; and also costs incurred by the donee of the power of appointment in relation to the trustee's appointment (q). But where a trustee takes upon himself the responsibility of Expenses unsuccessfully defending an action in relation to the trust y'Jj^ucress" fully defend- (1875), L. R. 20 Eq. 561 ; i^irmm (i) Morgan and Wurtzburg's ing an action. y. Pulham{184:8),2 BeG. &,Sm. Treatise on Costs, 2nd ed., 99 ; Gockcroft v. Sutcliffe (1856), pp. 124—126 and 403. 25 L. J. Ch. 313; and see also (m) Hughes v. Key (1855), 20 cases collected in Morgan and Beav. 395 ; Qompertz v. Kensit Wurtzburg's Treatise on the Law (1872), L. R. 13 Eq. 369. of Costs, 2nd ed., p. 412 et seq. {n) Be Isaac, Cronbaeh v. {i) Boyds v. Boijds (1851), 14 Isaac, [1897] 1 Ch. 251. Beav. 54 ; Be Chennell, Jones (o) Be Love, Hill v. Spurgeon V. Chennell (1878), 8 Ch. D. 492 ; (1885), 29 Ch. D. 348. Learoyd v. Whiteley (1887), 12 (p) Be Maddock, Butt v. App. Cas. 727. Wright, [1899] 2 Ch. 588. (k) Bride v. Books (1839), 2 {q) Harvey v. Olliver, [1887] Beav. 430 ; Campbell v. Bain- W. N. 149. bridge (1868), L. R. 6 Eq. 269; (r) Be Bumf rey, Worcester, etc., Belly. Turner {1817), 4:1 L.. 3. Ch. Banking Co. v. Blick (1882), 2-/ 75. Ch. D. 255. T. F F 434 The Administration of a Trust. Art. 78. Costs of jiiemature sale. Unreasonable expenses disallowed. Voluular}' subscriptions. Unnecessary law costs. estate without procuring the sanction of the court, the onus lies upon him of proving that he had reasonahle grounds for defending it. If he cannot prove such grounds, he is not entitled to retain out of the trust property the costs of the action beyond the amount which he would have incurred if he had applied for leave to defend (s). And so where trustees attempted, at the solicitation of their beneficiaries, some of ichom were married women u-ithout jpower Qj anticipation, to sell the trust property before the date named in the settlement, it was held that they were not entitled to be indemnified against the costs of an action brought against them by the purchaser {t). Neither will trustees be allowed to reimburse themselves every out-of-pocket expense, but only such as are reasonable and proper under the circumstances. Thus, the expenses of a trustee's journeys to Paris, in order that he might be present at the hearing of a suit brought in the French courts (the sole question being one of French law, and not of fact), were disallowed («). As a general rule, the payment, by trustees, of voluntary subscriptions for public or charitable objects is not allowed. But nevertheless they may be in exceptional cases — for instance, where they are reasonable and made in the honest belief that the payment will benefit the estate {x). Upon this ground the payment of subscriptions to a church school were allowed by Kekewich, J., there being evidence that if the sub- scriptions had been denied, a school board would have become necessary, in which case the estate would have had to pa}^ considerably more than the subscriptions in the way of rates {x). A trustee, although entitled to obtain legal advice in relation to the execution of the trust, is not entitled, out of an excess of caution, to charge the estate with unnecessary legal pro- ceedings. For instance, on retirement, he is not entitled to have an attested copy of the settlement, or of the appointment of new trustees, made at the expense of the estate {y). And on an appeal between l^eneficiaries it is said that trustees ought (s) Me Beddoe, Doivnes v. Cotiam, [189.3] 1 ("li. 547. (/) Lecdham v. Chdumer (1858), 4 Kay & ,J. 458. (//) Mdlfolm V. ffCdlldt/Iidn (18:57), :5 Myl. &Cr. .52. (.r) Jlow V. Earl Wiriterton (1902), 51 W. R. 262. See also Be Walker, Walker v. Duncombe, [1901] 1 rii. 879, where the court sanctioned the payment of charilablo subsciiptions. ()/) Wiirterv. Anderson (18H3), 11 Hare, 301; and see Art. 79, infra. Eight to Reimbursement and Indemnity. 435 not, as a rule, to brief counsel (^). This, however, appears to ^rt. 78. be a counsel of perfection where the appellant serves notice of — • api^eal on the trustee. But although a trustee is entitled to be reimbursed his out-of- laterest. pocket costs and expenses, he is not, as a rule, entitled to interest on them — a rule not altogether in accordance with justice (a) ; and although by 33 & 34 Vict. c. 28, s. 17, a solicitor may charge interest on disbursements made for his client, this does not seem to apply to disbursements made by a solicitor trustee. There is, however, an exception to the rule, viz., that where a trustee has paid out of his own moneys an interest-bearing claim against the estate, he stands by way of subrogation in the shoes of the creditor, and is entitled to interest (b). Parageaph (2). In an administration action, if it appears probable that the Paramount trust fund will be insufficient for the payment of the whole of ^\^" °rty7or the costs in full, the trustees are entitled to have inserted trustees' in the order a direction, that their costs, charges, and '^^P'^'^^^'^- expenses shall be paid in i^riority to those of the ])ene- ficiaries (c). In short, the trustees' lien takes precedence of all beneficial interests, and this not only as against original beneficiaries, but also all purchasers or mortgagees claiming through or under them (d). Even where property is settled on a married woman for life, without power of anticipation, and she improperly commences administration j)roceedings, which are dismissed with costs against her personally, the court may authorise the trustees to recoup themselves out of her life interest (//). One Holden executed a post-nuptial voluntary settlement. Trustees' He subsequently commenced an action to set it aside, but evcn"w'here failed in his contention, the action being dismissed with costs, settlement He then became bankrupt within two years of the date of the Bankruptcy Act. (z) Carroll v. Graham, [1905] to tlie other parties (Be Griffith, 1 Ch. 478. Jones v. Owen, [1904] 1 Ch. 807 ; (a) Gordon v. Trail (1820), Be Turner, Wood v. Tamer, 8 Pr. 416. [1907] 2 Ch. 126.) (b) Be Beulah Park Estate (d) Be Knapman, Knapnian v. (1872), L. R. 15 Eq. 43 ; Finch Wreford (1881), 18 Ch. D. 300. V. Pescott (1874), L. R. 17 Eq. (e) Be Andrews, Edwards v. 554. Bewar (1885K 30 Ch. D. 159; (c) Bodds V. Tulce (1884), 25 and cf. Married Women's Pro- Ch. D. 617. But even without perty Act, 1893 (56 & 57 Vict, this direction the trustees would c. 63), s. 2. be entitled to be paid in priority F F 2 436 The Administration op a Trust. Art. 78. Trustee of invalid will. Exception where trustee lias mixed his money with trust fund. Whether trustee can refuse to transfer pro- perty to new trustees until his lien is satisfied . settlement, which accordingly became void under s. 47 of the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52). It was held that, although the settlement was void, yet, as it had originally been valid, but voidable, and as the trustees had incurred costs in the execution of their duty which they could not recover from the bankru]3t, they were entitled to be fully indemnified out of the trust funds (/). It would seem doubtful, however, whether the same principle applies to settlements void under the 13 Eliz. c. 5, or to cases where the execution of the settlement was an act of bankruptcy (g). It has been held that where a trustee of a will, which was declared invalid as to real estate, ha.d, pendente, lite, incurred costs with the acquiescence of the heir-at-law, he was entitled to be indemnified out of the personal estate (h). "Where, however, a trustee for purchase has advanced money of his own to enable a particular property to be purchased, the price of which exceeded the whole trust fund, it was held that he had not o. first charge on the property for reimbursing himself his advance; but that the beneficiaries had a first charge on the estate for the amount of the trust fund, and that he onl}- had a second charge for the amount of his advance (i). The ratio decidendi in this case would seem to have been, that it was not so much a question of indemnity for coats and expenses incurred in the performance of his duty as of a gratuitous mixing of his own moneys with the trust moneys; and that this (as will be seen later on (A)) gave the trust estate a first and paramount charge. So where a trustee paid premiums on a settled policy out of his own pocket, instead of applying a fund provided for that purpose by the settlement, he was disallowed the payments (Z). It seems to be questionable whether a trustee, having a lien for costs, charges, and expenses, can refuse to transfer the property to new trustees until his lien is satisfied. The only reported authority known to the present writer {ni) was a very special case of a trustee-director of a company under an Act of Parliament claiming to be paid his director's fees ; and (/) Me Eolden, Ex parte]Official Beceiver (1887), 20 Q. B. D. 43. (^)^See lie Butterworth, Ex jmrte Russell (1882), 19 Ch. D. 588 ; ButtonY. Thompson (1883), 23 Ch. D. 278 ; Ex parte Vaughan, Be Biddeough (1884), 14 Q. B. D. 25. But c/. Ideal Bedding Co. v. Holland, [1907] 2 Ch. 157, where such costs were allowed. (h) Edgecumbe v. Carpenter (1839), I Beav. 171. (i) Be Pumfrey, Worcester, etc., Banking Co. v. Blick (1882), 22 Ch. D. 255. (k) Art. 87, infra. (Z) Clack V. Holland (1854), 19 Beav. 262. (m) Wilson v. Parker (1846). 10 Jur. 979. Eight to Reimbursement and Indemnity. 437 Knight-Bruce, V.-C, seems to assume in his judgment that if Art. 78. it had been the case of an ordinary trustee demanding to be paid his charges and expenses incurred in reference to the trust fund he might well have succeeded. Paragraph (3). Fifty shares in a company were placed in the plaintiff's rorsonai name, in 1891, by his employers, who were share brokers. He by 'beJieficiar had no beneficial interest in them, and was merely a bare under a trustee for the employers. Ultimately the defendant, as sue- ^'"^1''° *"'*^^- cessor in title of the employers, became beneficially entitled to the shares, and received the dividends. Subsequently a call was made which the plaintiff was obliged to pay, and there- upon he sued the defendant, who refused to indemnify him. On these facts it was held that the plaintiff was entitled to be indemnified by the defendant personally. Lord Lindley said : " The plainest principles of justice require that the cestui que trust, who gets all the benefit of the property, should bear its burdens, unless he can show some good reason why his trustee should bear them himself. The obligation is equitable and not legal, and the legal decisions negativing it, unless there is some contract or custom imposing the obligation, are wholly irrelevant and beside the mark. Even where trust property is settled on tenants for life and children, the right of the trustee to be indemnified 07it of the whole trust estate against any liabilities accruing out of any part of it is clear and indis- putable ; although if that which was once one large trust estate has been converted by the trustees into several smaller distinct trust estates, the liabilities incident to one of them cannot be thrown on the beneficial owners of the others. . . . But where the only cestui que trust is a person sui juris, the right of the trustee to indemnity by him against liabilities incurred by the trustee by his retention of the trust property has never been limited to the trust property ; it extends further, and imposes upon the cestui que trust a personal obligation enforceable in equity to indemnify his trustee. This is no new principle, but as old as trusts themselves. . . , Although the defendant did not create the trust, he accepted a transfer of the beneficial ownership in the shares with full knowledge of the fact that they were registered in the plaintiff's name as trustee for the original purchasers and their assigns, whoever they might be " (»). (n) Eardoon v. Belilios, [1901] 18, 24 ; and Fraser v. Murdoch A. C. 118 ; and see also Jervis v. (1881), 6 App. Cas. 855. Wolferstan (1874), L. R. 18 Eq. 438 The Administration of a Trust. Art. 78. Right to personal indemnity does not extend to special trusts. Trustees of clubs have no right to jiersoiial indemnity. Trustee can only receive costs wliere he lias dis- chargcer Swinfen Right to Reimbursement and Indemnity. 439 he is responsible, but that he is nevertheless allowed his costs Art. 78. of the litigation, either in the whole («), or limited to costs incurred after the judgment. In all such cases, however, he will not be allowed to receive them (or his costs, charges, and expenses properly incurred outside the litigation) until he has made good the loss to the estate caused by his breach (t). In practice the costs are set off against the liability, the trustee either receiving or paying the balance only. Tliis principle sometimes causes hardship to the solicitor of an insolvent trustee, as he loses the security of the estate for the costs of what may have been a costly litigation, and cannot recover them from his own insolvent client (/r). Paeagraph (5). Indeed, persons to whom a trustee has incurred liability, Persons have no original or direct right to claim payment out of the o™[!|j'^^'^'^' '^T' trust estate. This question usually arises in relation to the goods to, the business of a testator carried on rightly or wrongly by his no^fHreit^^'^ trustees. If a testator's will is silent on the question, his claim on business ought to be sold as a going concern, or wound up '^^ ^ ^' with reasonable despatch. If (as sometimes happens) trustees carry it on for the benefit of the family, they do so at their own risk ; and if losses ensue, have no right to reimbursement. On the other hand, a testator not infrequently directs his business to be carried on, and authorizes the emi)loyment in it of all, or a specific portion, of his assets ; and in that case, of course, the trustees are entitled to reimbursement of losses out of the assets so appropriated. Now in such cases the creditors of the business have no original right to claim payment of their debts out of the trust estate (x), their remedy being against the trustee whom they trusted ; but nevertheless, they have also a right to be jj;?^ in Ids place against the trust estate (a-) by subrogation. But this right is strictly limited to the right of the trustee himself. Therefore, if he is (by reason of breach of trust or otherwise) himself indebted to the trust (s) See supra, p. 432. Be Wehb, Leedham v. Pntchett (t) Be Knott, Bax v. Palmer (1890), 63 L. T. 545; Strickland (1887), 56 L. J. Ch. 318. v. Symons (1884), 26 Cli. D. 245 ; {u) Lewis V. Trask (1882), and see also Bedman v. Bi/mer 21 Ch. D. 862; Be Basham, {1S89), 60 Ij.T. S8o ; Lady Weii- Hannay v. Basham (1883), 23 lock v. Biver Dee Commissioners Ch. D. 195 ; lIcEwanv. Crombie (1887), 19 Q. B. I). 155 ; Moore (1883), 25 Ch. D. 175. But cf. v. M' Glynn, [1904] 1 Ir. R. 334; Be Clare, Clare v. Clare (1882), and as to torts, Be B'ev of appointment by will, appoints Trusts (1857), 3 Kay & J. 419; {d) Per Kindersley, V.-C, King Y. Mullins {1852), 1 Brew. in King v. Mullins (1852), 1 308 ; and see Be Lord Stamford, Drew, at p. 311. Payne v. Stamford, [1896] 1 Ch., (e) Price v. Louden (1856), 21 at p. 301. Beav. 508. (c) Ghadwick y. Heatley {lS't5), (/) Be Cater's Trusts (No. 2) 2 Coll. C. C. 137. (1858), 25 Beav, 366. 442 The Administration of a Trust. Art. 79. Trustee can- not demand custod}- of assignments of shares of the original beneficiaries. How far a trustee en- titled to copies of deeds, etc. the fund in pursuance of the power and appoints executors, the trustees of the fund can safely hand it over to the executors on their receipt, and cannot demand a release under seal from the beneficiaries (//) ; for, by appointing, the donee of the power makes the property assets of his own. It is well settled that, on the distril)ution of a trust fund, a share in which has been previously assigned, the trustee has no right to require the deliver^' to him of the assignment and other documents of title before payment of his share to the assignee (/?) ; and of course it follows that a trustee cannot demand to have a power of attorney handed to him(i). This, however, does not dispose of the question whether a trustee can demand cojnes of those documents which justify him in doing what he has in fact done. This certainly does not seem unreasonable in principle, especially where he is paying money to a person who claims as attorney or assignee of one of the original beneficiaries. The authorities seem to show that he can demand plain examined copies, Ijut not attested copies or a fortiori duplicates, except perhaps at his own expense. Thus in Wartcr y. Anderson {k), the representative of a deceased trustee was held not to be entitled, upon trans- ferring the property to new trustees, to be furnished at the expense of the trust with a duplicate of the appointment of the new trustees, nor even to an attested copy thereof, although the Vice Chancellor intimated that he had a right to have an examined copy and possibly at his own expense an attested copy or even a duplicate. And it would seem from the judgment of SwiNFEN Eady, J., in a recent case(/0 that possibly a trustee may be entitled to insist upon an acknowledgment for production and an undertaking for safe custody as well as to a cop}'. Art. 80. — U'njht to paij Trust Funds into Court binder certain Circumstdnccs. " (1) Trustees, orthe majority [l) of trustees, liaviDg in their hands or under their control money or securities belonging to a trust, may pay the same {g) Fe Ilosldn's Trusts (1877), 5 Ch. I). 229; (1877) 6 Cli. D. 281 ; and see supra, p. 435. (/() lie Pdlmer, Liinfushire (ivd Yorlishire lievcrsioiutry Jnfcresl Co. V. liurlce, [1907] 1 Ch. 486. (i) a. (,'., judgment of Swin- FEN Eady, J. (A-) (1853) 11 Hare, 301. (l) The court can compel a dissentient minority to stand aside. See Trustee Act, 1893 (56 & 57 Vict. c. 53), 8. 42 (3). Eight to Pay Trust Funds into Court. 443 into the High Court; and the same will, snhject to Art. 80. rules of court, be dealt with according to the Orders of the High Court "(;»)• (2) Payment into Court is not, however, justi- fiable merely in order to raise some question which can be determined more cheaply by means of an originating summons {n), nor where the equities are perfectly clear (0) ; and if trustees pay in under such circumstances, they may have to pay the costs of getting the money paid out (p). A trustee is justified in paying money into court where he Payment into cannot cret a valid discharge ; as, for instance, where court where . ^. 11 benefiiMaries beneficiaries who are absohitely entitled are infants (q) or are undur lunatics (r). .Usability. Formerly, where, under a creditor's deed, money was claimed Dispute both by the settlor and the creditors, the trustee was held to 'between ... . Dcncficitirics have been justified in paying the money into court (.s). It has been said that a trustee may properly pay money into Where )iioney court where it is claimed by the representative of a beneficiarv ; ^'^''^'™*^'^' ^y ^ , . , '' represent a- for non constat but that the latter may have disposed of it(0. five. But here again an originating summons would seem to be the more appropriate course. A trustee ought not to hesitate to pay the money to a bene- Payment to ficiary who claims in default of appointment, if he has no notice ""^! ^^'^? ^ ^ claims in default of (m) Trustee Act, 1893 (56 & 57 {o) Be CulVs Trusts (1875), 'U'pointmcnt. Vict. c. 53), s. 42. It would L. R. 20 Eq. 561 ; Be EUioVs seem at first sight that by the Trusts (1873), L. R. 15 Eq. 194. operation of sub-s. 6 of s. 25 (p) lb., and Be Leake's Trusts of the Judicature Act, 1873 (l863),32BesiY. 135; Be Tleming's (36 &, 37 Vict. c. 66), these TritsZ (1856), 3 Kay & J. 40. provisions are extended to all (g) Be Cawthorne (1848), 12 constructive trustees, such as Beav. 56; Be Beauclerlc (1862), insurance companies, etc. Btit 11 W. R. 203 ; Be Coulson (1857), although in one case (-Be //rt;/cocA;'s 4 Jur. (n. s.) 6. Policy (1876), 1 Ch. D'. 611) (r) Be UpfulVs Trust (1851), this was held to be so, that 3Mac. &G. 281; Be Irbi/ (ISoli), view has been twice dissented 17 Beav. 334 ; and see Be Carr's ixom. {Matthew V. Northern Assur- Trusts, Carr v. Carr, [1904] 1 ance Co. (1878), 9 Ch. D. 80, Ch. 792. and Be Sutton's Trusts (1879), (s) Be neadington''s Trust 12 Ch. D. 175). Whether, how- (1857), 6 W. R. 7 ; but see Be ever, these cases are still binding Provident Clerks'' Mutual Life authorities, having regard to Assurance Association, Be Mo^e- s. 10 of the Trustee Act, 1893 leifs Policy (1869), 18 W. 1{. (definition of " Trustee "), seems 126. open to question. {t) Be Lane's Trust (1854), 24 («) Be Giles (1886), 34 W. R. L. T. (o. s.) 181 ; King v. King 712. (1857),lDeG.&J.663,sef?ryi(a'm 444 The Administration of a Trust. Art. 80. Payment into court to enable married woman to assert equity to a settle- ment. Reasonable doubt or claim. Undue caution. General warning. of any appointment by the donee of the power, and no ground for believing that any appointment has been made. For in that case he could not be made liable if he paid over the fund, even if an appointment were subsequently discovered (ii). Anyhow, now, a trustee in such a case would only be allowed the costs of a summons. Where the beneficiary is a married woman, married before 1883, and whose title accrued prior to that date, it has been held that the trustee may pay into court, in order that she may assert her equity to a settlement. But this would not be so in cases to which the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), appHes. Again, where the trustee has a bond fide doubt as to the law (x), or has received a bond fide claim sanctioned by respect- able solicitors (i/), he may properly pay the fund into court, unless the question can be settled by summons. For instance, where a necessary party to a summons is out of the jurisdic- tion, so that the summons could not be served, payment into court would be justifiable. But where a beneficiary in reversion who had gone to Australia, and had not been heard of for some years, suddenly reappeared, and there was no reasonable doubt as to his identity, it was held that the trustee was not entitled to pay the trust fund into court, and he was ordered to pay the costs of all parties {z). Lastly, the reader must be warned that, now that most questions of doubt or difficulty can be decided on originating summons, the right of j^aying money into court can only be used with safety in very rare cases. It seems matter for regret that those who were responsible for the drafting of the Trustee Act, 1893 (56 & 57 Vict. c. 53), did not insert some words in s. 42 warning trustees of the danger they run in accepting the apparently unconditional invitation extended to them by the words of that section, an invitation which in many cases can only 1)6 accepted at the risk of having to pay costs. (n) Per Jessel, M.R., Be CvWs Trusts (1875), L. R. 20 Eq. .061, distinguishing Be Wylly's Trusts (1860), 28 Beav. 458; but see also Be Swan (1864), 2 Hem. & M. 34 ; Be Bobeiis' Trust (1869), 17 AV. R. 639; Be Bendyshe (1857), 5 W. R. 816 ; Be Williams' Settlement (1858), 4 Kay. & J. 87. (x) King v. King (1857), 1 De G. & J. 663 ; Be iVetcaZ/e (1864), &. S. 122 ; Ounnell [1870), L. R. 10 Eq. 2 De G. J. V. Whiicar 664. iy) Be 3Iaclean''s Trusts [1814:), L. R. 19 Eq. 274. (z) Be EllioVs Trusts (1873), L. R. 15 Eq. 194; Be Foligno's MoHgage (1863), 32 Beav. 131; Be Knighfs Trusts (1859), 27 lieav. 45 ; Be Woodburn's Trusts (1857), 1 DeG. & J. 333. CHAPTER XI. THE RIGHT OF TRUSTEES AND BENEFICIARIES TO SEEK THE ASSISTANCE OF THE PUBLIC TRUSTEE OR THE COURT IN AUDITING OR ADMINISTERING THE TRUST. AKT. PAGE 81. — Eight of Trustee or Beneficiary to Official Audit of THE Trust Estate through the Public Trustee . 445 82. — Eight of Trustee or Beneficiary to take the Direction of the Court or a Judge in Relation to Specific Questions 447 83. — Eight under certain Circumstances to have the Trust administered under the direction of the court . 455 Art. 81. — Bight of Trustee or Beneficiary to Official xiiidit of the. Trust Estate through the Public Trustee. (1) Unless the court otherwise orders, the condition and accounts of any trust shall, on an application being made and notice thereof given by any trustee or beneficiary, be investigated and audited by such solicitor or accountant as may be agreed on between the applicant and the trustees, or in default of agree- ment by the Pubhc Trustee or some person appointed by him(rt). (2) Except by leave of the court there must be at least twelve months' interval between any such audit and a second application (b). Pakagraph (1). Where the applicant is a beneficiary, he must deliver, or Procedure, send by post, to the last known address of each trustee, a notice requesting such audit. Where the applicant is a trustee, be must in like manner send such a notice to his co-trustees and the beneficiaries entitled to the income. In either case, the (rt) PubUc Trustee Act, 1906 {b) Ibid. (6 Edw. VII., c. 55), s. 13 (1 . 446 The Administration of a Trust. Art. 81. Costs. Powers of auditor. Duly of auditor. Rights of beneficiaries to inspect proceedings. Removal of auditor. applicant must also make a formal application in writing to the Public Trustee for the audit (e). If the parties fail to agree on an auditor within three calendar months from the date of the notice, the Public Trustee or his nominee will make the required investigation (d). If, on the other hand, the parties agree on an auditor, the sole function of the Public Trustee is the remuneration of the auditor in case the parties cannot agree upon it, and the manner in which the costs are to be borne. Prima facie they are borne by the estate unless the Public Trustee orders them to be paid by the applicant or the trustees, which he has power to do subject to an appeal to a judge of the Chancery Division (r). The auditor can call for books, accounts, vouchers, and information (J'), and, if obstructed, may apply to a judge of the Chancery Division in chambers for an order in that behalf {g). To such an application there can be no defence (//). Any false and material misstatements are punishable by fine or imprison- ment, with or without hard labour (/). The auditor has to forward to the applicant, and every trustee, a cojDy of the accounts and his report thereon, and a certificate that the accounts exhibit a true view of the trust affairs, and that he has had the securities produced and verified, or that the accounts are deficient in specified respects (A.). Every beneficiary is entitled to inspect and at his own expense to take copies of the above accounts, report, and certificate {I). The auditor may be removed b}- the court. If he is removed, or dies, or resigns, or becomes bankrupt, or in- capable pending the completion of the investigation, a new auditor may be appointed in the same way as he himself was (//<). (c) Public Trustee Rules, r. 37. (d) lb., r. 38. (e) PubUc Trustee Act, s. 13 (5) and s. 10, and Public Trustee Rules, r. 39 ; and see lie (Jddy, [191 IJ 1 C'h. 532. On such an appeal the Public Trustee ouj;ht not to be served (S. (;.). lie ouglit to hear the l)arties before making an order lor payuieut ol costs ijcrsouaily (S. C). (/) PubUc Trustee Act, s. (2). {g) lb. (6). {h) lie II' UUams (1910), T. L. K. 604. (I) Public Trustee Act, s. (8). {k) lb. (2). (0 lb. (3). (m) lb. (4). 13 26 13 Eight to Take the Direction of the Court. 447 Art. 82. — Biglit of Trustee or Beneficiarij to tahe lln- Art. 82, Direction of the Court or a Judge in relation to Specific Matters. (1) The trustees under any deed or instrument, or any of them, or any of the beneficiaries, whether original or by assignment, may take out, as of course, an originating summons in the chambers of a judge of the Chancery Division for such rehef of the following kind as may be specified by the summons, i.e., the determina- tion without an order for general administration of any of the following questions : — (a) the ascertainment of any class of creditors, legatees, devisees, next of kin, or others ; (b) the approval of any specific (;/) sale, purchase, compromise, or other transaction ; (c) directing the trustees to do or abstain from doing any specified act which it is their duty to do or abstain from doing (0) ; (d) directing the payment into court of any money actually {p) in the hands of the trustees. (e) any other question arising in the administration of the trust, including the construction of the trust instrument, but excluding (i.) hostile claims against the trustees for wilful default or any other breach of trust where the facts are in dispute (q) ; (ii.) contingent questions, unless the contingency is about to be destroyed and the parties reasonably desire to ascertain their posi- tions (r) ; (iii.) matters affecting third parties (s). (n) Be Bobinson, Pickard v. (1885), 30 CIi. D. 291 ; Be Giles, Wheater (1885), 31 Cli. D. 247. Beat and Personal Advance Co. v. (o) See Suffolk y. Lawrence Michell (1890), 43 Ch. D. 391. (1884), 32 W. R. 899. (r) See Be Berens, Berens v. (p) l^uUer V. Holland, [1894] Berens, [1888] W. N. 95. 3 Cli. 408. (*■) See Be Bridge, Franks v. {q) See 2)er Lord Macnagiiten, Worth (1887), 56 L. J. Ch. 779; Bowse V. Gorton, [1891] A. C. Be Boyle, Boijle v. Ilaiies (1889), at p. 202; Nutter v. Holland, 43 Ch. I). 18 ; /ve 7'«mnt (1888), [1894] 3 Ch. at p. 410; Be 58 L. J. Ch. 101; Ilerrirk v. Powers, Lindsell v. PUlli-ps Cooper, [1899J 1 Ir. II. 321. 448 The Administkation of a Trust. Art. 82. (3) It is not now necessary to serve such a summons on all parties interested. It suffices if (a) all the trustees and (b) one beneficiary to argue each distinct question pro and con be before the court (t). (4) Where the trustees issue such a summons to construe the trust instrument for their guidance, or to have determined some question arising in the adminis- tration, the costs of all parties will be ordered to be paid out of the estate, and generally as between solicitor and client ; and the same practice is followed where a beneficiary, instead of the trustees, issues a summons which if issued by the trustees would entitle all parties to their costs out of the estate. But where a beneficiary issues such a summons adversely to the other benefi- ciaries, and uses this procedure to effect that which would properly form the subject of a writ action, and falls within the term litigation, the costs will as a rule follow the event (u). Pakagraph (1). Effect of The above is an attempt to give the effect of E. S. C, R. s. c., Ord. Order 55, r, 3, and Order 54a, as construed by the court. Order 55, r. 3, is in the following words : — The executors or administrators of a deceased person or any of them and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next of kin, or heir-at-law or customary heir of a deceased person or as cestui que trud under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable in the chambers of a judge of the Chancery Division for such relief of the nature or kind following, as may by the summons be specified and as the circumstances of the case may require, (that is to say), the determination, without an administration of the estate or trust, of any of the following questions or matters : — (a) Any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin, or heir-at-law, or cestui que trust : (b) the ascertainment of any class of creditors, legatees, devisees, next-of-kin, or others : (c) the furnishing of any particular accounts by the executors or administrators or trustees, and the vouching (when necessary) of such accounts : (0 Order 55., r. 5. Bucldon, Bucldon v. Buckton, {u) Per Kekewicii, J., Ee [1907] 2 Ch. 406. Eight to Take the Direction of the Court. 449 (d) the payment into court of any money in tlie hands of the executors Art. 82. or administrators or trustees : (e) directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees : (f) the approval of any sale, purchase, compromise, or other transaction : (g) the determination of any (question arising in the administration of the estate or trust. It will be perceived that the rule is not very artistically conimcuts on framed, as paragraphs (a) and (g) seem to be little more than ^'"^ ''"'^" paraj)hrases of each other. Moreover their language is so wide as to be capable of embracing every question touching the trust, whereas the interpretation given by the court is very different. For these reasons it has been deemed advisable to give in the above article the net result (or what seems to the author to be the net result) of the rule and the decisions upon it. In the first place, then, an originating summons under this Questions rule is, according to Fry, L. J., merely equivalent to the old oJi'SI'.'aJilfg Chancery practice, before the Judicature Acts, of commencing summons a suit for general administration, raising the particular points ^,jgij ag^couid of difficulty on the pleadings, obtaining inquiries, accounts, or be determined directions at the hearing on the points raised, and then staying for'thc all further proceedings (x). That course has still occasionally K<-'»eral to be taken, c.//., where a person who must be served is out of tion of the the jurisdiction, as there is no means of serving an originating '^''^*'^- summons out of the jurisdiction. But this rule was devised in order to substitute a shorter and cheaper form of procedure and for no other purpose. It follows that the rule extends only to matters which before the rule could have been determined in an action for general administration of the trust. Thus questions affecting a person entitled to a lc(i((l remainder in real estate after the determination of a trust, could not be determined in an administration suit, and therefore could not be determined under this rule (/y). To cure this omission Order 54a was added to the Hules of Oucstions of the Supreme Court in 1893, and is in the following words : — of'iegar "^" 1. "In any division of the High Court, any person claiming to be ajsti„,r,iislicd interested under a deed, will, or other written instrument, may apijly by from dghts originating summons for the determination of any question of construction under a arising under the instrument, and for a declaration of the rights of the ,'i'^!Jprmh?iible parties interested." un summons. (a;) Be Medland, Eland v. Carlyon, (1886) 35 W. E. 155; Medland (1889), 41 Ch. D. at Be Davies, Davies v. Davies p. 492. (1888), 38 Ch. D. 210. [y) Be Carlyon, Carlyon v. T. G G 450 The Administration of a Trust. General result as to (jucstions of construction. Art. 82. *!• " The Court or judge shall not be bound to determine any sucli question of construction if in their or his opinion it ought not to be determined on originating summons." The result now is, that, either under Order 55, r. 3, or Order 54a any question as to the interpretation of a trust instrument, whether it be a will or a deed, and whether the question relates to the equitable rights under a trust or to legal rights arising on the determination of a trust, can be decided on originating summons, unless the court or a judge considers that it is a question which ought to be the subject of an action (~). But the rules do not extend to the determination of questions affecting persons claiming adversely to the trust instrument, ('.//., the creditors of a testator, or mortgagees of the trust estate or the like, although such questions undoubtedly " affect the rights or interests of the person claiming to be .... cestui que trust "(a). Such questions may in certain cases no doubt be determined in proceedings for general administra- tion commenced by summons under Order 55, r. 4, but not under the rules now under consideration. Again, it is not " competent for an api^licant by originating summons to ask for, or obtain, otherwise than by consent, an order founded on breach of trust, or inquiries pointing to wilful default " (b). On the other hand, it has been held that a trustee whose accounts, when taken under paragraph (c) of Order 55, r. 3, show an investment on improper security (which it is conceived means for this purpose an ohciousli/ and indisputahhj iinpvoj)er security, and not one depending on insufficient value or the like), may be ordered on the summons to make it good (c). It is generally inadvisable, however, to employ these originating summonses for hostile proceedings against a trustee, and they are of course quite unsuitable where the facts are in dispute, as the evidence is by way of affidavit (>/). Another instance of the tendencv of the court to restrict Rights of third parties claiming adversely to a trust can- not be deter- mined on summons. Not appli- cable to claims for breach of trust. Order on trustee to pay money into court. {z) As to cases falling under Ord. 54a, see Mason v. Scliwp- pisser (1899), 81 L. T. 147 ; and Lewis V. Green, [1905 J 2 Ch. 340. (n) bee Re Bridge, Franks v. Worth (1887), 56 L. J. (Jh. 779 ; lie lioyle, Royle v. Hayes (1889), 43 Ch. D. 18 ; Herrick v. Cooper, [1899] 1 Ir. R. 321. {b) Per Lord Macnaghtkx, Dowse V. Gorton, [1891 J A. C. at p. 202 ; cj. Be Garnett, Gandy v. Macauley (1884), 32 W. R. 474 ; and Be Ellis' Trusts, Kelson v. Ellis (1888), 59 L. T. 924. (r) See Be Ncwland, Bush v. Siimners, [1904] W. N. 181, Jollowing dictum of Stirling, J., in Be iStunrt, Smith v. Stuart (1896), 74 L. T. 546. (d) See Nutter v. Holland, [1894] 3 Ch. at p. 410; Be PiiGHT TO Take the Direction of the Court. 451 applications under Order 55, r. 3, to cases of administration, Art. 82. and not to extend them to breaches of trust, is the way in ■ which paragraph (d) has been construed, viz., that it appUes only to cases where the trustee admits that he has money actually in his hands, and not to cases where he lias had it but has misapplied it (e). It would seem, however, that if a common account be iirst taken under paragraph (c) and the sum were found due from the trustee, an order for payment into court might be made(/). It would, however, be safer, even in that case, to frame the summons not only under Order 55, r. 3, but as a summons for general administration under Order 55, r. 4 (fi), as to which see next article. Again, paragraph (e) seems at first sight to be broad enough Orders on to include an order u])on the trustees to do, or alxstain tmstoes to ( lo or Tcfitfiiii from doing, anything relating to the trust ; yet it has been held from iloin- not to enable the court to comjiel trustees of an undivided ^P'^^''^'^ •'^'^''• share in real estate, to concur in a sale of the entirety in a partition action, apparently on the ground that the paragraph only enables an order to be made to do or abstain from doing an act which it is their duty to do or abstain from doing, and not an act which is within their discretion (//). Such an order can only be made wdien the court administers the trust. Paragraph (f ) again has l^een held to be restricted to the Approval of approval of a sale, iiurchase, compromise, or other transaction '^'J''^''*- P"""' J- \ ^ . . J- . chases, cora- which has been conditionally agreed to, and which the trustees promises, etc. have iDOwer to carry out, but which powei- they wish to exercise under the court's sanction, so as to protect them- selves from future charges of negligence and the like ; and not to extend to an application to fUrcct a sale, which can only be made in an action under Order 51 , r. 1 (i). On the other hand, an order was made under it by the late Yice-Chancellor Bacon (7,) allowing trustees, who had no such power, to expend money in stocking a farm in which the testator had given a life estate to his son, but without providing means of carrying it on. The question of jurisdiction does not seem, however, to have been raised in this case, and there was no opposition, and possibly Powers, Lindsell v. Phillips Be Stuart, Smith v. Stuart (1896), (1885), 30 Ch. D. 291 ; Be Giles, 14: L. T. 546. Beat and Personal Advance Co. V. (g) See judgment of Davey, Michell (1890), 43 Ch. D. 391; L. ,L, in Nutter v. Holland, supra. and Beamish v. Whitney, [1908] (h) Suffolk v. Lawrence (1884), 1 Jr. R. 38. 32 W. R. 899. (e) Nutter v. Holland, [1894] (i) Be Bohinson, Pickard v. 3 Ch. 408. Wheater (1885), 31 Ch. D. 247. if) See Be Newland, Bush v. (k) Be Household, Household v. Sumners, [1904] W. X. 181, and Household (1884), 27 Ch. D. o5 G G 2 452 The Administration of a Trust. Art. 82. Contingent questions not usually decided. the trustees might be held to have had power to apply the money without any order by way of salvage. The case can scarcely be relied upon as deciding that such an application falls within paragraph (f), and in practice it would be wise to ask for general administration as well under Order 55, r. 4. Indeed it has become the common practice in issuing originating summonses under Order 55, r. 3, to add a paragrai)h claiming, " If and so far as may be necessary to give the Court jurisdiction, general administration under K. S. C, Order 55, r. 4," wiiich avoids a multitude of objections. The " Yearly " and "Annual" Practices give a number of cases decided on originating summons, but in many if not most of them no objection was taken to the jurisdiction, and they can scarcely be regarded as authorities on the point. "With regard to contingent questions, i.e., questions which may never arise, the court is very averse to decide them either on summons or in an action, particularly where the decision affects the rights, or possible rights, of unborn persons. But exceptions are made where a person's present title to deal with an interest under a trust, dej^ends on an event which is presently contemplated, so that until the question is decided he is practically unable to shape his conduct. Thus where a lady is engaged to be married, the validity of a trust in her father's will forbidding marriage with a j)erson of different faith has been raised and determined on originating summons (l). On the other hand, in a case where the author appeared for the trustees, the court refused to consider the question whether a tenant for life (who had been married some years and had no issue) would, if he died without issue, be absolutely entitled to a trust fund, or whether it would go over to his brother's issue. His plea was that if it were decided that he would be absolutely entitled in the event of no issue he need not save so much of his income as would otherwise be necessary, but this was held to be insufdcient. He appealed, but Lord Justice Yaugh.\n Williams uiisympathetically remarked, that it was doubtless a very interesting question for a Gray's Inn moot, but not one for a busy Court of Appeal to waste its time over. The moral seems to be, that contingent questions will not be decided unless the contingent event depends on the applicant's volition, and he convinces the court that he intends to exercise that volition forthwith if the result of doing so would not deprive him of his rights under the [1) See Be Berens, Berens v. Berens, [1888] W. X. 95 ; aud see also Be Fr erne's Contract, LI89u] 2 Ch. 259, 778. Right to Take the Direction of the Court. 453 settlement. For example, if a will gave income of a trust fund Art. 83. to testator's son until he quits the kingdom and then over to another, it is probable that if the son contemplated accei}ting an official appointment in one of the colonies the court would say whether the effect of doing so would cause a forfeiture ; but it would certainly not decide the question if the son had no present intention of quitting the kingdom. Parageaph (2). It was formerly necessary to serve all parties interested Parties to in the decision of the question unless they were a numerous ^^ served. class, in which case a classification order could be obtained. This great expense is now, however, obviated by Order 55, r. 5, the net result of which is, that, in the first instance, it is only necessary to have before the court the trustees (either as applicants or respondents) and one person to represent each distinct interest. In other words, where several persons are in the same interest with regard to the question raised only one of them need be served. The judge may, however, order others to be served if he thinks it desirable. Paragraph (3). With regard to the costs of summonses under Order 55, r. 3 Costs. (and presumably under Order 54a also), the judgment of Kekewich, J., in Re Buckton, Bnckton v. Buckton (m), is so important that it is considered well to give the words of the learned judge himself. He said : " Uniformity in practice is of the highest importance, and it is especially important in that department of practice which is concerned with costs. On the other hand costs are so largely in the discretion of the judge, that it is more difficult to secure uniformity in that department than in any other, and it is well nigh impossible to lay down any general rules which can be depended on to meet the ever varying circumstances of particular cases. In a large proportion of the summonses adjourned into court for ai-gu- ment, the applicants are trustees of a will or settlement who ask the court to construe the instrument of trust for their guidance, and in order to ascertain the interests of the bene- ficiaries, or else ask to have some question determined whicli has arisen in the administration of the trusts. In cases of this character, I regard the costs of all parties as necessarily incurred (m) [1907] 2 Cli. 406 at p. 413 et seq. 454 The Administration of a Trust. Art. 82. for the benefit of the estate, and direct them to be taxed as between soHcitor and client and paid out of the estate. It is of course possible that trustees may come to the court without due cause. A question of construction or of administration may be too clear for argument, or it may be the duty of trustees to inform a claimant that they must administer their trust on the footing that his claim is unfounded and leave him to take whatever course he thinks fit. But although I have thought it necessary sometimes to caution timid trustees against making applications which might with pro- priety be avoided, I act on the princii)le that trustees are entitled to the fullest possible protection which the court can give them, and that I must give them credit for not applying to the court except under advice which, though it may appear to me to be unsound, must not be readily treated as unwise. I cannot remember any case in which I have refused to deal with the costs of an application by trustees in the manner above mentioned. There is a second class of cases differing in form but not in substance from the first. In these cases it is admitted on all hands, or it is apparent from the proceedings, that although the application is made, not b}'' trustees (who are respondents) but by some of the beneficiaries, yet it is made by reason of some difiiculty of construction, or ad- ministration, which would have justified an application by the trustees, and it is not made by them only because, for some reason or other, a different course has been deemed more con- venient. To cases of this class I extend the operation of the same rule as is observed in cases of the first class. The appli- cation is necessary for the administration of the trust, and the costs of all parties are necessarily incurred for the benefit of the estate regarded as a whole. There is yet a third class of cases, differing in form and substance from the first and in substance though not in form from the second. In this class the application is made by a beneficiary who makes a claim adverse to other beneficiaries, and really takes advan- tage of the convenient jirocedure by originating summons to get a question determined which, but for this procedure, would be the subject of an action commenced by writ, and would strictly fall within the description of litigation. It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am deter- mining rights between adverse litigants I apply the rule which ought I think to be rigidly enforced in adverse litiga- tion and order the unsuccessful party to pay the costs. Right to Take the Direction of the Court. 455 Whether he ought to be ordered to pay the costs of the Art. 82. trustees, who are, of course, respondents, or not, is sometimes open to question, but with this possible exception the unsuccessful party bears the costs of all whom he has brought before the court." The question in the case before the learned judge, was whether the plaintiff was, as he claimed, equitable tenant in tail or only equitable tenant for life of coj^yholds under a trust, and although the court considered it on the border Hne, yet, as it was a question which the trustees could not ultimately have decided for themselves, it was held to fall under the second class in the above judgment, and the costs of all parties as between solicitor and chent were ordered to be borne by the estate. Art. 83. — Bight under certain Circumstances to hare the Trust administered under the direction of the Court. (1) Where the trustee reasonably wishes to be dis- charged from the office of trustee, or where difficulties arise which cannot be determined summarily under Order 65, r. 3, or Order 54a, or where it is dangerous to administer the trust except under the direction of the court, any trustee or any beneficiary may institute an action for the administration of the trust by the court (71), and this can now be done by originating summons under Order 55, r. 4. But it is not obli- gatory on the court to make an order for administra- tion, if the questions between the parties can be properly determined without it (0). (2) Where the equities are perfectly clear and unambiguous {p), or a trustee-plaintif!" merely craves to be released from caprice or laziness, or there is no real (n) Talbot v. Earl Eadnor (p) Be Knighfs Trusts (1859), (1834), 3Myl. &K. 252 ; Goodson 27 Beav. 45; Lowson v. Cope- V. Ellisson (1827), 3 Russ. 583; land (1787), 2 Bro. C. C. 156; and as to summons, R. S. C, Be Elliofs Trusts (1873), L. R. 1883, Ord. 55, r. 4. 15 Eq. 194 ; Be Foligno's Mort- (o) R. S. .C, 1883, Old. 55, gage (1863), 32 Beav. 131; Be r. 10; Be BUike, Jones v. Blake Woodburn's Trusts (1857), 1 De (1885), 29 Ch. D. 913; Be De G. & J. 333; Beatij v. Curzon Quetteville, Be Quetteville v. De (1868), L. R. 7 Eq. 194; Be Quetteville (1903), 19 T. L. R. Hoskin's Trusts (1877), 5 Ch. D. 383. 229. 45G The Administration of a Teust. Art. 83. difficulty in administering the trust, and no reasonable allegation of dishonesty or incompetence against the trustees (q), the plaintiff will have to pay all the costs. Even where he acts bond fide, but without any real cause, he will not be allowed his own costs (r) ; and where he brings an action when the same object might have been obtained by payment into court or by a summons in chambers, under Order 55, r. 3 (s), he will not be allowed the extra costs occasioned thereby (t). He will always appeal from an order of the court at his own risk (//). When general Actions for the administration of a trust are now compara- ti^'n wiii'be tively rare. Formerly, a decree for general administration ordered, (that is to Say, a decree whereby the court took upon itself to super\'ise the execution of the trust) was granted to a trustee or a beneficiary as a matter of course. The only check upon an abuse of the process of the court was the rather remote contingency that the plaintiff might possibly be dej)rived of his costs, or, in very flagrant cases, have to pay the costs of all parties, upon the action coming on for further considera- tion. However, by the Eules of the Supreme Court, 1883, Order 55, r. 10, the old practice was reversed ; and it is now no longer obligatory upon the court or a judge to pro- nounce or make a judgment or order for the administration of any trust, if the questions between the parties can be properly determined on summons (without such judgment or order), as mentioned in Article 82. The principles on which the court will, under this new rule, grant or refuse general administration, have been discussed in two cases ; one before the late Mr. Justice Peakson (a:), and the other before the Court of Appeal iy), in which the learned Lords Justices were more inclined to restrict the right to a decree than Mr. Justice Pearson was. Lord Justice Cottok in the latter case said : iq) Forshaw v. Higginson (t) Wells v. Ilalbon (1862), (1855), 20 Beav. 485 ; Ee StoJces' 31 Beav. 48 ; but see Smallwood Trusts (1872), L. R. 13 Eq. 333 ; v. Butter (1851), 9 Hare, 24. Be Cabburn, Gage v. Butland (w) Bowlandv. 3Iorgan (184:8), (1882), 46 L. T. 848. 13 Jur. 23 ; Tucker v. Hernaman (r) Be Leake's Trusts (1863), (1853), 4 De G. M. & G. 395. 32 Beav. 135 ; Be Eeming's (x) Be Wilson, Alexander v. Trust (1856), 3 Kay & J. 40; Colder (1885), 28 Cli. D. 457. Be Hodgkinson, Ilodgkinson v. {y) Be Blake, Jones v. Blake Hodgkinson, [1895] 2 Ch. 190. (1885), 29 Ch. D. 913 ; and see (6) Be Giles (1886), 34 W. E. also Be Gi/hon, Allen v. Taylor 712. (1885), 29 Ch. D. 834. Eight to have Trl^st Administered by Court. 457 " Formerly, if any one interested in a residuary estate insti- Art. 83. tuted a suit to administer the estate, he had the right to require, and as a matter of course obtained, the full decree for the administration of the estate; and the court, even if it thought that, although there were really questions which required decision, these questions might be decided upon some only of the accounts and inquiries which formed part of the decree, found itself fettered and unable to restrict the accounts and inquiries to such only as were necessary in order to work out the question. Now, however, the practice is laid down by r. 10 of Order 55, as follows : — " (His lordship here read the rule and continued) " Where there are questions which cannot properly be determined without some accounts and inquiries or directions which would form part of an ordinary administration decree, then the right of the party to have the decree or order is not taken away, but the court may restrict the order simply to those points which will enable the question which requires to be adjudicated upon to be settled. That is the result of Order 55, r. 10. Then we have Order 65, r. 1, which says, 'subject to the pro- visions of the Acts and these Rules, the costs of and incident to all proceedings in the Supreme Court, including the adminis- tration of estates and trusts, shall be in the discretion of the court or judge.' These two rules must be read together, and we then find this : that if a party comes and insists that there is a question to be determined, and, for the purpose of determining that question, asks for an administration judgment, the court cannot refuse the judgment unless it sees that there is no question which requires its decision. But r. 1 of Order 65 puts the party who api^lies for the judgment and insists upon it in this position — that if it turns out that what has been represented as the substantial question requiring adjudication is one which was not a sub- stantial question, or that the applicant was entirely wrong in his contention as to that particular question, the court can, and, in my opinion, ought ordinarily to make the person who gets the judgment pay the costs of all the proceedings conse- quent upon his unnecessary, or possibly vexatious, application to the court " (z). It will be seen from the above judgment, that now that Deductions almost all isolated questions of construction or administrative ,/,lisUce'^^'^ Cotton's {z) This seems to refer rather requires a very flagrant case to jmlgment. to the case of an action com- render a trustee liable to pay menced by a beneficiary. It costs ; see p. 431 et seq., supra. 468 The AmriNisTRATioN of a Trust. Art. 83. difficulty can l)e dealt with singly, comparatively few cases can arise necessitating general administration ; except (1) where the trustees cannot pull together, or (2) the circumstances of the estate give rise to ever recurring difficulties requiring the frequent direction of the court, or (3) where a jj?7'»?a facie doubt is thrown on the bona fiden or the discretion of one or more of the trustees. Possibly, also, it would still be held that a trustee would be entitled to a judgment for general administration to relieve him of trouble and annoyance, in a ease such as the following, viz., where there were divers disputes as to the proper beneficiaries, out of which disputes several actions had sprung, to all of which the trustee was a necessary defendant (a). For if he brings the money into court under the Act, he still remains a trustee ; and though he would be under no liability quoad the fund brought in, he would not be discharged from liability quoad the past income. Moreover, he must be served with notice of all proceedings under the Act in relation to the fund, and this of necessity would compel him to incur some expense in employing a solicitor. But where there is no dispute respecting the amount of a trust fund, and no justifiable ground for the trustee retiring from his office, the only doubt being as to the proper persons entitled ; and the trustee, instead of paying the money into court under the Trustee Act, or issuing an originating summons, institutes a suit for the purpose of having the rights of the beneficiaries declared, he will be allowed such costs only as he would have been entitled to if he had paid the fund into court under the Act (h), or had issued a summons (r). It has also been held that the court will not necessarily order general administration because a testator has directed his trustees to commence an action for it (<-/); for the court is for the benefit of the living and not the dead. (a) Barker v. Peile (1865), (c) Be Giles (1886), 34 W. R. 2 Dr. & Sm. 340. 712. (b) Wells V. 3Ialbon (1862), (d) Be Stocken, Jones v. Haw- 31 Beav. 48. kins (1888), 38 Ch. D. 319. DIVISION V. THE CONSEQUENCI^S OF A BREACH OF TRUST. CHAPTER PAGE I. — The Liability of the Tkl'stees 459 II. — Peotectio:x accorded to Trustees in case of Breach OF Trust 481 III. — Liability of Third Parties and Beneficiaries . . 509 CHAPTER I. THE LIABILITY OF THE TRUSTEES. art. pace 84. — The Measure of the Trustee's Eesponsibility . . 459 85. — The Liability, Joint and Several 468 86. — No Set-off allowed of Gain on one Breach against Loss on another 469 87.— Property Acquired either wholly or partly out of Trust Property becomes Liable to the Trust . .471 88. — Any of the Beneficiaries may apply to the Court by Interlocutory Motion to safeguard the Tjiust Property if endangered 476 89. — Fraudulent Breach of Trust is a Crime . . . 479 Art. 84. — Tlie ]]frasurr of the Trustee^ s BesponsihiJitij. (1) The measure of a trustee's responsibility for a breach of trust is as follows : — (a) Where the breach consists merely of negligence, the measure is the actual loss suffered by the beneficiaries whether as regards capital or income without regard to any loss which would have been sustained if the trustee had strictly performed the trust (a), with this statutory qualification, that where a trustee improperly advances trust money on a mortgage security which would at the time of the investment be a proper investment in all respects for a smaller (a) See examples, infra, p. 460 ei seq. 460 The Consequences of a Breach of Trust. Art. 84. Measure where the breach is merely neglect (wil- ful default). Not open to trustee to show that an equal or greater loss would have fcjllowod if no breach liad taken place nor to set off excess interest against his liability. sum than is actually advanced thereon, the security is deemed an authorised investment for the smaller sum ; and the trustee is only liable to make good the sum advanced in excess thereof with interest (h). (b) Where the breach consists in using trust money for his own private purposes he must not only replace the capital but account for the actual income which he has made by the use of the money, or at the option of the bene- ficiaries pay interest at such a rate (usually 5 per cent, per annum) and either simple or compound as in the opinion of the court fairly represents the profit usually made by the employment of money for purposes similar to those for which he has used it (r). (2) The actual loss for which he is liable, includes not only the direct loss attributable to the breach, but all loss which happens before the fund is properly reinvested in authorised securities (^/). (3) The liability is not lessened by the fact that the trustee was himself the voluntary creator of the trust (e). Paragraph (1) (a). It is quite clear that where a breach of trust is what is usually called " innocent " [i.e., where the trustee has not been using the trust funds for his own pui poses) the measure of his responsibility is the loss which has actually taken place; for the court has no jurisdiction to punish a trustee. On the other hand, it is not open to the trustee, where there has been a breach, and loss has followed, either to tender evidence that if he had strictW followed the directions of the trust an ecpial or greater loss would have taken place, nor to claim that the tenant for life shall bring into hotchpot against future income all excess of past income over that which would have been received if the fund had been properly invested. Thus, if trustees were by a will coming into operation twenty years ago expressly directed to invest in consols and nothing (b) Trustee Act, 1893 (56 & 57 Vict. c. 53), 8. 9, retrospective. (c) See examples, infra, p. 464 et seq. id) Lander v. Weston (1885), 3 Drew. 389 : Bacon v. (Jlark (1837), 3 Myl. & Cr. 294 ; Clough V. jyo?uZ (1838), 3 Myl. & Cr. 490. (e) JJrosier v. Brereton (1851), 15 Beav. 221 ; but cf. liobinson V. Bobinson (1851), 1 De G. M. &, G. 247. The Measure of the Trustee's Responsibility. 461 else, and, in spite of this, they invested on other stock yielding Art. 84. 4 per cent, which by reason of the general depreciation of securities turned out insufdcient in 1910, they would (as the authorities stand) be liable at the election of the beneficiaries either to replace the exact amount of stock which they could have purchased with the fund at the date when they ought to have purchased it, or to make good the fund itself not ivithstandinrj the great depreciation of consols daring tite last tirentij years {/). Nor would the trustees be entitled to call on the life tenant either to recoup, or bring into account as against future income, the extra percentage he had received from the irregular invest- ment (^), unless he had been the instigator of the breach (as to which see infra, Art. 94). It is, however, apprehended that after a judgment declaring that an investment of trust funds was a breach of trust altogether, the trustee is (subject to the lien of the beneticiaries) entitled to the whole of the interest produced by the repudiated security, and bound to pay interest at 4 per cent., on the judgment debt. Another instance arises where trustees are empowered to X(ii- can lend the trust fund to a husband with the written consent of t-ru.stee plead his wife. If they dispense with that consent they will be liable, breach was and cannot tender evidence to show that if the wife had been ""material, applied to for her consent she would certainly have given it (Ji). The above examples are hard cases, but they are logical Principles deductions from the underlying principle stated in the case of "^'^ which Knott V. Cottee (i), viz., that unless a trustee invests in cases turn, authorised securities the case is either treated " as if the investments had not been made, or had been made for his own benefit out of his own moneys ; and that he had at the same time retained moneys of the testator in his hands. . . . I cannot concur in the argument that the court must charge him as if the money had been invested in consols. It that were so the court must charge him the other way where the funds have fallen, which it never does. . . . The persons interested were entitled to earmark them as being bought with the testator's assets, in the same manner as if the executor had (/) Shepherd v. Mouls (1845). Tapson (1884), 28 Ch. D. 268; 4 Hare, 500, 504 ; Watts v. and see also Slade v. Chaine, Girdlestone (1843), 6 Beav. 188; [1908] 1 Ch. 522, where it was Byrchall v. Bradford (1822), 6 held that such excess could be Madd. 235 ; and see also Be kept by the tenant lor hfe and Massingberd's Settlement, Clark was not capital. \. Trelawney {1SQ0),63L. T. 2QG. {h) Bateman v. Davis (1818), (g) See Be Whiteley, Whiteley 3 Madd. 98. x.Learoyd (1886), 33 Ch. D. at p. (i) (1852) 16 Beav. 77 ; and 354, affirmed {sub nom. Learoyd see Be Whiteley, Whiteley v. V. Whiteley) (1887) 12 App. Learoyd, supra. Cas. 727 ; dissenting from, Fry v. 462 The Consequences of a Breach of Trust. Art. 84. Where trus- tees have a choice of investments the bene- ficiaries can only claim the money lost and not the actual stocks which might have been pur- chased. Where specified investment imperative, trustees allowed out- goings vk'hich they would have had to pay. Cases where there must always have been a loss. bought a house with the trust funds ; and though they do not recognise the investment, they had a right to make it available for what was due." Whether this principle is a just one is quite another matter, and, as will be seen later on, Parliament has (in the usual half-hearted way) made an anomalous excep- tion to it in the case of mortgages of land, where the wilful default has consisted merely in advancing too much. Doubtless there is something to be said for the principle on the ground that, if trustees were allowed to contend that a loss would have been suffered in any event, it would introduce so much uncer- tainty and lead into such far reaching inquiries as to be oppres- sive to beneficiaries, and might also encourage carelessness in dealing with trust funds. Nevertheless, seeing that trustees act gratuitousl}', the author has never been able to understand upon what principle of elementary equity, beneficiaries should be allowed to make an actual profit out of a trustee's mistake. Surely the actual amount of consols which ought to have been purchased is the pro^jer measure of the trustee's responsibility. This is one of those instances in which the law requires careful revision before being crystallized in a code. Of course where trustees have a choice of investments the beneficiaries can only claim to have the trust fund made good, and not to have the amount of stocks, etc., purchased, which could have been purchased at the date when the investment ought to have been made, with interest at 3 per cent., because it would be impossible to sa}^ which of the permitted securities the trustees would have chosen and what interest they would have yielded (k). On the other hand, where the investment is specified and not left to the choice of the trustees, they will be allowed to deduct any outgoings which would have been with certainty payable if the investment had been made. Thus in one case the trustee of gas shares allowed the husband of one of the beneficiaries to get them into his hands. The husband surrendered them to the company, accepting allotments of new shares in their stead, on which new shares he paid calls, and finally became bankrupt. On these facts, it was held that the trustee was only liable for the value of the shares, less the calls paid by the husband, that being the true measure of the loss to the trust (/). So, where there must alwavs have been a loss on the (A:) Robinson v. Bobinson (1851), 1 De G. & M. G. 247 ; Marsh v. Hunter (1822), 6 Madd. 295 ; and as to the rate of interest, lie Barclay, Barclay v. Andrew, [1899J 1 Ch. 674;* lie Whiteford, Inglis v. Whiteford, [1903] 1 (Ui. 889, 896. (I) Briggs v. Massey (1882), 30 W. E. 325 ; and see also Be Ilulkes, Powell v. Ilulkes (1886), 33 Ch D. 552. The Measure of the Trustee's Responsibility. 463 realisation of trust property, apart from any l)reach of trust, Art. 84. then if a breach of trust further depreciates it, the measure of the trustee's responsibiUty is confined to the further deprecia- tion ; and he is not responsible for the difference between the nominal value and the actual amount realised {))i). A trustee who is guilty of unreasonable delay in investing Loss of trust funds, will be answerable to the beneficiaries for simple interest interest at 3 (it) per cent, during the continuance of such unreasonable delay (o) ; for if he had done his duty, interest would in fact ^^^^^^ I"^ T 1 • T investing. have been received. On the same ground, where an executrix allowed trust Uuty to money to remain uninvested in her solicitor's hands for nine ^ccuinuhitc. years during the infancy of the beneficiary, she was charged with compound interest at the rate of 3 i3er cent, per annum ^ with half-yearly rests ; as it was her duty to have accumulated the income, by investing it from time to time in consols (j>). And a fortiori is this the case where there is an express trust for accumulation {it). So, a trustee who, without proper authority, calls in trust improper proi^erty invested on mortgage at 5 per cent, would be liable ^^iii"g ^^ ?f , . Till S^od security. for that rate of interest ; for although he may not actually have received that rate, he would have done so (q) but for his unauthorised act. Prior to the Trustee Act, 1888 (51 & 52 Vict. c. 5*J), where statutory a trustee invested the trust fund on mortgage, and advanced exception to o o ' _ general rule more than two-thirds of the value, that prima facie constituted where loss the entire inrestnient a breach of trust. It was not an invest- P"^!!^^^, insuracient ment which the trustee ought to have made at all, and conse- mortgage quently having, by making it, committed a breach of trust, ''^'^^^'"^^y- the whole item — the entire sum so invested — was (on the principle discussed supra, pp. 460, 461) disallowed him in his accounts, and the mortgage was either realised and he was charged with the actual deficiency, or (at all events where the security was wholly unauthorised and not merely deficient (>•)) (m) Lord Gainsborough v. 23 Beav. 386. Watcombe Terra Cotta Co. (1885), {p) Gilroy v. Stephen (1882), 54 L. J. Ch. 991. 30 W. R. 745 (Fry, J.) ; and see {n) See Amiss v. Rail (1857), also Be EmmeCs Estate, Emmet 3 Jur. (N. S.) 584; Be Barclay, v. Emviet (1881), 17 Ch. D. 142. Barclay v. Andrew, [1899] 1 Cli. {q) See judgment in Jones v. 614; BeOoodenough, 3Iarlandy. Foxall (1852), 15 Beav. 388; Williams, [1895] 2 Ch. 537 ; Be and see principles stated in Be UilVs Trusts, Ilill v. Equitable, llassingberd's Settlement, Clark etc.. Society {1896), 15 L.T. 4:11 ; v. Trelawney (1890), 63 L. T. Be Lynch Blosse, Bickards v. 296; and 31osley v. Ward (1805), Lynch Blosse, [1899] W. N. 27 ; 11 Ves. 581. Baphaelv. Boehm {1805), 11 Yes. {r) Be Salmon, Briest v. 92. Uppleby (1889), 42 Ch. D. 351. (o) Stafford v. Fkldon, (1857) 464 The Consequences of a Breach of Trust. Art. 84. Rule only applies where the breach is solely as to the amount a-lvanccd. he was directed to replace the entire sum, and upon doing so the mortgage became his absohitely (s). Consequently, although a trustee might only have erred in advancing, say, one-eighth more than two -thirds of the value, he thereby became liable to rei)ay to the estate the whole of the amount invested, recouping himself so far as possible out of the mort- gage. But although this is still the rule with regard to securities generally, it is no longer so with regard to mortgage securities where the only breach of trust was that too much was advanced. In such cases s. 9 of the Trustee Act, 1893 (5G & 57 Yict. c. 53) (re-enacting s. 5 of the Act of 1888), provides, that where the mortgage security " would at the time of tlie investment he a ijroper investment in all respects for a smaller sum" he will only be liable for the excess over that smaller sum, although that may not represent the loss to the estate. A trustee is not, however, protected by this enactment where he ought not to have invested on the security of such property at all, e.g., where he has invested on mortgage of leaseholds, or wasting property, such as mines or brickfields or the like {t). In such a case, if the trustee in fault retires, the new trustees need not put him to his election to take over the security, but may realise the security without notice to him, and charge him with the entire deficiency (//), or (if he has become bankrupt) prove for it {x). This, however, is not so where the security is one of a class not authorised at all. In such cases, unless the beneficiaries are under disability {y), they must give the trustee the option of taking over the security before realising it {z). ^Mixing trust funds with trustee's own moneys. Paeagraph (1) (b). The above examples relate to honest breaches of trust and are supposed to be based on the actual amount of loss. But if a trustee keeps the money in his hands, meaning to appropriate it, or even to use it temporarily only (and indeed even where he does so in order that the beneliciaries may have a larger income (a)), the actual loss ceases to be the measure of his responsibility. As (s) Fry V. Tapson (1884), 28 Ch. D. 268 ; lie Whiteley, White- ley V. Learoyd (1886), 33 Cli. D. at p. 354. (t) lie Walker, Walker v. Walker (1890), 59 L. J. Ch. 386. And see also Head v. Gould, [1898] 2 Ch. 250. (•w) lie Salmon, Priest v. Upplehy (1889), 42 Ch. D. 351. (x) lie Lake, Ex pade Howe, L1903] 1 K. B. 439, where the mortgage was a contributory one, and the mortgagor brought an action to set it aside ior fraud, which action the beneficiaries compromised behind the back of the trustee. (y) Head v. Gould, [1898] 2 Ch. 250. (z) Re Salmon, Priest v. Uppleby, supra, (a) Me Davis, Davis v. Davis, [1902] 2 Ch. 314. The Measure of the Trustee's Responsibility. 465 Lord Cranworth said in the leading case of Att.-Gi'n. v. Art. 84. Alford (b), " in such a case, I think the court would be justiiied — in dealing, in point of interest, very hardly with an executor ; because it might fairly infer that he used the mnneij in specula- tion, by which he either did make 5 per cent., or ought to be estopped from saying that lie did not. The court would not inquire what had been the actual proceeds, but in application of the principle, in odium spoliatoris omnia prcesumiintur, would assume that he did make the higher rate, tJiat is, if that were a reasonable presumption." In Burdick v. Garrick (c), a solicitor, as the agent of the Solicitor- plaintiff, held a power of attorney from him, under the authority [^"^[7 "1"" of which he received divers sums of money, and paid them into in his the bank to the credit of his (the solicitor's) firm. On a bill ^"*'"°ss- being filed by the client for an account, the Vice-Chancellor made a decree for payment of the principal with compound interest. The Court of Appeal, however, reversed this decision, Lord Hatherley saying : " The Vice-Chancellor has directed interest to be charged at the rate of 5 per cent., which appears to me to be perfectly right, and for this reason, that the money was retained in the defendants' own hands, and was made use of by them (d). That being so, the court presumes the rate of interest made upon money to be the ordinary rate of interest, viz., 5 per cent. I cannot, however, think the decree correct in directing half-yearly rests ; because the principle laid down in the case of Attorney-General v. Alford appears to be the sound principle, namely, that the court does not proceed against an accounting party by way of punishing him for making use of the plaintiff's money, by directing rests, or payment of compound interest, but proceeds upon this principle, that either he has made, or has put himself into such a position that he is presumed to have made, 5 per cent., or compound interest, as the case may be." His lordship then pointed out that no doubt where a trustee employs money in ordinary (b) (1855) 4 De G. M. & G. at without interest, as the wife had p. 851 ; Stafford Y, Fiddon (1851) allowed him to receive the 23 Beav. 386 ; Jones v. Foxall income. (1852), 15 Beav. 388 ; Ee Jones, (d) See to same effect Bate v. Jones V. 8earle (1883), 49 L. T. Scales (1806), 12 Ves. 402; 91 ; Be Emmefs Estate, Emmet Ex parte Ogle (1873), L. R. 8 Ch. V. Emmei (1881), 17 Ch. D. 142 ; 711; Jones v. Foxall, supra; and Be Davis, Davis v. Davis, Heathcote v. Htdme {1819), I J ac. [1902] 2 Ch. 314. & W. 122 ; Docker v. Somes (c) (1870) L. R. 5 Ch. 233. (1834), 2 Myl. & K. 655; and See also Hale v. Sheldrake (1889), Berwick-upon-Tweed Corporation 60 L. T. 292, where a husband v. Murray (1857), 7 De G. M. of the tenant for life was ordered & G. 497. to replace a trust fund, but ■ T. H H 466 The Consequences of a Breach of Trust. Art. 84. Partner- trustee allowing trust fund to remain in business. Five per cent, still charged against trustee using uionev. trade, he may be made liable for compound interest, where trade capital is presumed to yield it ; but that that reason had no application to capital employed in a solicitor's business, upon which a solicitor is frequently receiving no interest at all. It is suggested that the present tendency of the court is not to give compound interest unless there is evidence to j)rove that it would fairly represent the trustee's probable profits. And anyhow, in order to charge a trustee with compound interest, or with actual profits for employing the trust funds in trade, there must be an active calling in of the trust moneys for the purpose of embarking them in the trade or speculation ; a mere neglect to withdraw funds already emharhcd h// the settlor in the trustee s trade is not sufiicient (e). It will be perceived that in the last cited judgment the learned Yice-Chancellor gave 5 per cent, interest, explaining that the court presumed that to be the " ordinary rate." But in the more recent case of Re Davis, Davis v. Davis (f), Farwell, J., gave 5 per cent, (although he admitted that it was no longer the mercantile rate), the money having been employed in the trustee's trade. In that case compound interest was not asked for ; probabl}' because the circumstances showed that it had not been earned, and probably also because there was no mala fides, the trustee having employed the money in his business in order to produce a larger income for the beneficiaries. The ground upon which five per cent, interest is still given in these cases, in place of the lower interest which would have been earned if the fund had been properly invested, would seem to be based on the principle stated by Sir W. Grant, M.R., in Bate v. Scales (//), viz. : " it is just the same, whether he had it actually, or by his representation is to be taken as bound. See the consequence ; supposing, that representation could be made without any interference against the trustee, except that when the falsehood of the representation is discovered he should invest the fund in stock. The trustee might always take his chance of being able to purchase stock upon a subsequent day at a less price. He shall not have that chance." Paragraph (2). The authorities show that the court does not confine a trustee's liability to the loss immediately arising from the breach. (e) Vyse v. Foster {l%12), L. R. 8 Ch. 309, affirmed (1874) L. R. 7 H. L. 318 ; Smith v. Nelson (1905), 92 L. T. 313 ; Brown v. Sansome (1825), McClel. & Y. 427 ; but cf. Townend v. Townend (1859), 1 Giff. 201. (/) [1902] 2 Ch. 314. (g) (1806) 12 Ves. 402. The Measure of the Trustee's IiEsponsibility. 4^7 but, on the principle discussed i^iipni (p. 4(50 ct srq.), extends it _^^.+ g. to whatever losses occur before (if at all) the fund is reinvested -^ properly in authorised securities. Until that is done it Thoioss remains in theory uninvested in the trustee's hands. ^'^ '"'f ^^'^'^, ihese cases are sonietnnes extremely hard, and it is quite to all losses conceivable that when they come to be reviewed thev mav be ^^^""'"^^, T r> 1 rm • " between the considerably modified. Thus m one case trustees, who were breach and empowered to vary investments with the consent of the hfe reiiivestment tenant, sold consols and (with such consent) invested the pro- in authorised ceeds in a contributory mortgage (which was of course a l)reach prcscHbir"'* of trust). They subsequently called in the money, received it, consents, and reinvested it on a mortgage (which was an authorised security), l)ut witliont getting the life tenant's consent, and on u-hich there wan no Iosh. Nevertheless it was held that they were bound to replace the consols (which had risen in price). For they sold them for the purpose of investing in an unauthorised security, and then when they realised that investment, they again invested w'ithout the consent of the life tenant, so that the orifjinal breach teas never set rujltt, and consequently the loss was the difference between the price of the consols when sold and the price at which alone they could be replaced at the date of the judgment (/t). This decision seems somewhat startling, as although the motive for the sale of the consols was to reinvest in an unauthorised security, the sale itself was authorised, and it is difficult to see why, if the sale was authorized, the trustees were mulcted for having sold at all. Again, two trustees, in breach of trust, sold consols and ^^^ ^^^j, advanced the proceeds to the husband of the life tenant. He of deceased subsequently repaid the advance to the surviving trustee, who waf party ° reinvested it in unauthorised stock for a few days, and then to a breach sold such stock and again lent the proceeds to the husband, inc'^irretl" °^ with the result that the fund was lost. It was held that not after his only was the surviving trustee liable for the loss (which was obvious), but also the executors of the deceased trustee ; for but for the original sale of the stock to make the advance to the husband, that stock would have remained intact ; and that the mere repayment by the husband to the surviving trustee and the investment in unauthorised stock did not set matters right and so condone the original breach, and that consequently the executors of the deceased trustee were liable for all loss which happened (even after his death) before the fund was (j^) Be Massingberd' s Settle- Be Bennison, Cutler v. Boyd ment, ClarJc v. Trelawney (1890), (1889), 60 L. T. 859 ; and Stokes, 63 L. T. 296 ; and see also v. France, [1898] 1 Ch. 212. H H 2 468 The Consequences of a Breach of Trust. Art. 84. Trustee none the less liable because he was also voluntary creator of the trust. ultimately replaced (/). But seeing that the surviving trustee was comjietent to receive and give a good discharge for the money, it is very difficult to follow the reasoning on which this case was founded, which seems inconsistent with the cases cited on p. 473, infra. Paragraph (3). The fact that a trustee is also the voluntary creator of the trust makes no difference to his legal liability (k). This at first sight, no doubt, seems somewhat revolting, but it logically follows from the fact that a voluntary settlement (if complete and executed) is binding and irrevocable. If it were possible for a trustee (on the ground that he voluntarily made the settlement) to waste or appropriate the trust property, the settlement would be in effect revocable, and the rule as to the irrevocable nature of executed trusts rendered futile. All parties to breach are equally liable. Art. 85. — 21ie Liahilitij, Joint and Several. (1) Each trustee is in general liable for the whole loss when caused by the joint default of all the trustees, even although all may not have been equally blame- worthy (/) ; and a decree against all may be enforced against one or more only {m). (2) But although the liability is several as well as joint, all the actual trustees or the personal representa- tives of the last surviving trustees are necessary parties to the action (n). Paragraph (1). All parties to a breach of trust are equally liable, and there is between them no primary liability (o) ; and this liability is not confined to ex2)ress trustees, but extends to all who are actually privy to the breach of trust. Thus, where trustees (i) Lander v. Weston (1855), 3 Drew. 389 ; and see also Bacon V. Clarke (1837), 3 Myl. & Cr. 294 ; and Clough v. Bond (1838), 3 Myl. & Cr. 490. {k) Drosier v. Brereton (1851), 15 Beav. 221. (l) Wilson V. Moore (1833), 1 Myl. & K. 126; Lyse v. Kingdon (1844), 1 Coll. C. C. 184 ; Ex parte N orris. Be Bid- dulph (1869), L. R. 4 Ch. 280. This applies not only to express trustees, but to all persons who meddle with the trust property with notice of the trust. See Cowper V. Stoneham (1893), 68 L. T. 18. (m) Att.-Gen. v. Wilson {\MQ), Cr. & Ph. at p. 28 ; Fletcher v. Green (1864), 33 Beav. 426. {n) lie Jordan, Hayward v. Hamilton, [1904] 1 Ch. 260. (o) Per Master of the Rolls, in Wilson v. Moore (IS33), 1 Myl. & K. 126. Liability, Joint and Several. 469 delegated their trusteeship to their soHcitors, who received the Art. 85. moneys, and did not invest them, but made use of them in their business, it was held that both the trustees and the solicitors were equally Hable, and that judgment might be executed by the beneiiciaries against the solicitors on\y(p). This principle does not, however, apply to professional payments made by trustees to a solicitor or other agent who knows that the money is trust money, unless facts are brought home to him which show that, to his knowledge, the money was being applied in a manner inconsistent with the trust ; or, in other words, that the solicitor or other agent was party either to a fraud, or to a breach of trust on the part of the trustees. " To make an agent liable to return costs, he must be fixed with notice that, at the time when he accepted payment, the trustee had been guilty of a breach of trust such as would preclude him altogether from resorting to the trust estate for payment of costs ; so that in fact the application of the trust estate in payment of costs would be a breach of trust " (q). It follows from the nature of the liability being several as Beneficiaries well as joint, that until the plaintiffs have received twenty elaimthe" shillings in the pound they are entitled to claim the whole debt whole from from any one trustee in respect of his several liabilit}', not- thJ trustees, withstanding that they have accepted a sum from another trustee in satisfaction of Ids liability. If, therefore, the former becomes bankrupt, the plaintiffs can prove for the full amount against his estate, without first deducting the sum received from the other trustee (r). Nevertheless a release of one trustee mai/ incidentally operate as a release of the others if the beneficiary elects to accept an investment the making of which was the breach of trust complained of (s). Art. 86. — Xo Sd-of allowed of Gain on one Breach a),4:Ch.. D. 123 ; Be IlalletVs Estate, Knatchbull v. Halleit (1880), 13 Ch. D. 696. {d) Francis v. E'rancis (1854), 5 De G. M. & G. 108. () ; and d fortiori is this so where he was the agent of an express trustee (h). The question still remains whether the Act of 1888 has Question extended the disability of express trustees continuing in ^"t'^oMgss^ possession of real or personal trust property to all trustees has altered (e.g., of resulting and constructive trusts) retaining possession re^arcrto of such property. Section 8 applies existing Statutes of Limita- resulting tion to actions for breach of trust against " a trustee " (not necessarily an express trustee), "except w^here the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property or the proceeds thereof still retained by the trustee, or previously received by the trustee or converted to his own use." These are merely words of exception, however, and appear to leave trustees under resulting trusts who still retain the trust pro- perty in precisely the same position as they were in before the Act. The Act clearly does not make any distinction between (x) Beckford v. Wade (1805), (1870), L. R. 5 Cli. 233 ; Foley x. 17 Ves. 87. ^litt (1848), 2 H. L. Cas. 28; iy) Petre v. Petre (1853), 1 Be Bell, Lake v. Bell (1886), 34 Drew 371 <'li- D. 462; Dooby v. Watson (z)'Loching v. Parker (1872), (1888), 39 Ch. D. 178; North L. R. 8 Cli. 30. American Land and Timber Co. (a) See Be Dixon, Heynes v. v. Watkins, [1904] 1 Ch. 242; Dixon, [1900] 2 Ch. 561. Soar v. Ashwell, [1893] 2 Q. B. (b) See Burdick v. Garrick 390. 492 The Consequences of a Beeach of Trust. Art. 91. trustees of express and trustees of resulting trusts, but it does not interfere with the pre-existing law, whatever it ma}' have been, with regard to the protection of resulting or constructive trustees before the Act. It is therefore conceived that the former cases as to what constituted an express trust within s. 25 of the Act of 1833 and s. 25 of the Judicature Act, 1873, are still of importance. Charges. Simple charges are expressly provided for by the old statute (('). AYhere, however, a charge is so coupled with a trust as to be in reality a trust itself, the old statute does not ajDply. For instance, where a testator charged his property with payment of his debts, and imposed an obligation on the devisee to exert himself acfirfl// in paying the debts, the case did not fall within the old statute (d) ; and it is conceived that it would not fall within the provisions of the new Act. Art. 92. — Concurreuce of or Waiver or Brlcdse hij the Benrficidries. (1) A beneficiary who has assented to, or concurred in, a breach of trust (r), or who has subsequently released or confirmed it {/), or even acquiesced in it ((/), cannot afterwards charge the trustees with it : Provided — (a) that the beneficiary was sui juris at the date of such assent or release (Ji) ; (b) that he had full knowledge of the facts, and knew what he was doing (/) and the legal effect (c) (1833) 3&4 Will. IV., c. 27, (1841), 1 Y. & Coll. C. C. 16. 8. 40. ^" (h) Underwood v. Stevens (d) Hunt V. Batemnn (1848), (1816), 1 Mer. 712; Leneh v. 10 Ir. Eq. Rep. 360. Leneh (1805), 10 Ves. 511 ; Lord (e) Brice v. Stokes (1805), 11 3Io7itford v. Lord Cadogan {1816), Ves. 319 ; Wilkinson v. Parry 19 Ves. 635. (1828), 4 Russ. 272; Nail v. {i) Be Qarnett, Gaudy v. Punter {IS32), 5 Sim. 555; Life Macauley (1885), 31 Ch. D. 1; Association of Scotland V. Siddal Buckeridge v. Glasse (1841), (1861), 3 De G. F. & J. 58; Cr. & Ph. 126; Ifiighes v. Wells Walker v. Symonds (1818), 3 (1852), 9 Hare, 749 ; Cockerellv. Swans. 1 ; Evans v. Benyon Cholmeley (IS'SO), 1 Russ. & Myl. (1887), 37 Ch. D. 329. 418; Strange v. Fooks (1863), (/) French v. Hobson (1803), 4 Giff. 408; March v. Russell 9 Ves. 103 ; Wilki7ison v. Parri/, (1837), 3 Myl. & Cr. 31 ; Aveline supra ; Cresswell v. I)ewell{\8Qi), v. Melhuish (1864), 2 De G. J. & Giff. 460. S. 288 ; Walker v. Symonds (g) See Broadhurst v. Balguy (1818), 3 Swans. 1. Concurrence of or Eelease by Beneficiaries. 403 thereof (k), and has had and retains the benefit Art. 92. of the breach (/) ; (c) that no undue infliience was brought to bear upon him to extort the assent or release (;//). (2) Where a beneticiary has obtained judgment in an action for breach of trust, or merely for general adminis- tration, it is not competent for him afterwards in that action to charge the trustees with breaches of trust committed before action and not alleged in the plead- ings and proyed at the trial, or eyen to ask for their remoyal on that ground (/^); nov {scmhic) can a fresh action be brought for that purpose without the leaye of the court (o). Paragraph (1). The reader must carefully distinguish between the rules Distinction stated in the present article and those stated in Art. 94, infra. ^P\'^^^^^ ■■• _ _ ' •/ right to The present article relates exclusively to the circumstances plead con- under which a trustee may plead concurrence or assent, by thrHahtTo^ way of defence to an action by the concurring or assenting indemnity, beneficiar}'. Article 94, on the other hand, deals with the question as to the circumstances under which a trustee, who may possibly have no defence to an action for breach of trust, may yet call upon his co-trustee, or a concurring or assenting beneficiary, to indemnify him against the consequences of the breach. Stock was settled on a married woman for her separate use PbintiflE for life, with a power of aj^pointment by will. The trustees, {^'j-g^^ch^of at the instance of the husband, sold out the stock and paid the trust, proceeds to him. The wife filed a bill to compel the trustees to replace the stock, and obtained a decree, under which the trustees transferred part of the stock into court, and were allowed time to re-transfer the remainder. The wife then died, having by her will a[)pointed the stock to the husband. He then filed a l)ill against the tru;jtees, claiming the stock under the appointment, and praying for the same relief as his {k) Be Garnett, Gaudy v. {I) Crichton v. Criehton, [1895] Macauley (1885), 31 Ch. D. 1 ; 2 Ch. 853. Coekerell v. Cholmeley (1830) 1 (m) Bowles v. Stewart (1803), Kuss. & Myl. 418; Marker v. 1 Sch. & Lef. 226; Chesterfield Marker (1851), 9 Hare, 1 ; v. Janssen (1751), 2 Ves. Sen. Burrows v. Walls (1855), 5 De G. 125. M. & G. 233 ; Stafford v. (n) Re Wrightson, Wrightson v. Stafford{1851),ir>eGr.&iJ. 193; Cooke, [1908J 1 Ch. 789 Strange v. Fooks, (1863) 4 Giff . 408. (o) lb. at p. 800. 494 The Consequences of a Breach of Trust. Art. 92. Release need not be under seal. Release may be inferred from conduct. Acquiescence. wife might have had. It is needless to say that his claim was promptly rejected (jj). A formal release under seal, or an express confirmation, will, of course, estop a beneficiary from instituting subsequent pro- ceedings ; and it would seem that any positive act or expression indicative of a clear intention to waive a breach of trust will, //" supportrd htj valnablc consideration {lioiccvcr slif/hf), be equivalent to a release (r/). Thus, in Ghost v. Wcdlcr {r), a marriage being in contemplation, the lady executed a settle- ment of real estate under which, in default of issue and in the event of her surviving the husband, she became once more absolutely entitled to the settled property. Between the date of the settlement and the marriage a breach of trust took place through the fraud of the trustees' agent ; but in con- sideration of the trustees undertaking to assist in getting back part of the loss from the agent's estate she through her solicitor agreed (merely by letter) " to give up all claims if she has any against her trustees for negligence." Years after- wards, after the death of the husband without issue, she sought to sue the trustees, but it was held that she had efTfcctuall}' released them. A release may be inferred from conduct. Thus, where a mother bequeathed property to her son and " prohibited him from setting up any claim on account of any error, irregularity, or impropriety in the execution of the trusts " of her father's will, it was held that having accepted the bequest the son could not sue the executor of his grandfather's will for employ- ing part of the estate in his own business (.s). Even before the Trustee Act, 1888 (51 & 52 Vict. c. 59), a beneficiary under a declared trust might disentitle himself to relief by acquiescence. Thus, where a trustee, with the know- ledge, but without the consent, of the beneficiary, accepted a reduced rent from a lessee of the trust property, and the beneficiary complained of the abatement, but took no steps to put an end to it for some years, it was held that, after the expiration of the lease, the trustee could not be called upon to make up the deficiency {t). And, generally speaking, the same result follows where, with full knowledge of a breach of trust, (p) Nail V. Funter (1832), 5 Sim. 555. (y — every trustee. " We find," said his lordship, " a married woman throwing herself at the feet of the trustee, begging and entreating him to advance a sum of money out of the trust fund, to save her husband and her family from utter ruin, and making out a most plausible case for that purpose. His com- passionate feelings are worked upon, he raises and advances the money ; the object for which it was given entirely fails, the husband ])ecomes bankrupt, and in a few months the very same woman who induced the trustee to do this, files a bill in the Court of Chancery to compel him to make good that loss to the trust. These are cases which, when they happen, shock everybody's feelings at the time ; hut it is necessary that relief should he given in such cases ; for if reli/) ; {I) Lindo V. Lindo (1839), 8 L. J. (n. s.) Ch. 284 ; Uamsden V. HylUin (1751), 2 Ves. Sen. 305; Fritt v. Clay (1843), 6 Bear. 503. (m) Lloyd v. Attwood (1859), 3 De G. &.J. 614. (n) (Jrichton v. Crichton, [1896] 1 Ch. 870, reversing decision of North, .J., [1895] 2 Ch. 853. (o) Dnwson v. Clarke (1811), 18 Ves. 247 ; and as to settle- ments made since August 13th, 1859, see 22 & 23 Vict. c. 35, s. 31. (p) Walker v. Symonds (1818), 3 Swans. 1 ; and Bone v. Cook ( 1824), McClel. 168. The case of Re Fryer, Martindale v. Picquot (1857), 3 Kay. & .1. 317, merely turned upon a question of pro- cedure, wilful default not having been pleaded. (q) See Wynne v. Tempest (1897), 13 T. L. R. 360: Brad- Protection against the iVcTS of Co-Trustee. 4',»'.) (c) where he becomes aware of a breach of trust, Art. 93. either committed or meditated, and abstains from taking the needful steps to obtain restitu- tion and redress, or to prevent the meditated wrong {}•). (2) Even in the above three cases he may be made irresponsible by express declaration in the settlement (s). Thus, in the case of Wilkins v. Hogg (t), which now governs Leading case, the subject, a testatrix, after appointing three trustees, declared that each of them should be answerable only for losses arising from his own default, and not for involuntary acts or for the acts or defaults of his co-trustees ; and particularly, that any trustee who should pay over to his co-trustees, or should do or concur in any act enabling his co-trustees to receive any moneys for the general purposes of her will, should not be obliged to see to the due application thereof, nor should such trustee be subsequently rendered liable by any express notice or intimation of the actual misapplication of the same moneys. The three trustees joined in signing and giving receipts to insurance companies for sums of money paid by them, but two of the trustees permitted their co-trustee to obtain the money without ascertaining whether he had invested it. This trustee having misapplied it, it was sought to make his co- trustees responsible ; but Lord Westbury held that they were not, saying : " There are three modes in which a trustee would become liable according to the ordinary rules of law — first, where, being the recipient, he hands over the money without securing its due application ; secondl}'', where he allows a co- trustee to receive money without making due inquiry as to his dealing with it ; and thirdly, where he becomes aware of a breach of trust, either committed or meditated, and abstains from taking the needful steps to obtain restitution or redress. The framer of the clause undei- examination knew these three rules, and used words sufficient to meet all these cases. There remained, therefore, only personal misconduct, in respect of which a trustee acting under this will would be responsible. well V. Gatchpole {circa 1711), 3 (1861), 3 Gift". 116, 8 Jui-. (N. s.) Swans. 78, n. ; Marriott v. Kin- 25 ; and see also Dix v. Burford nersley (1830), Taml. 470. (1854), 19 Beav. 409; Muckloww. (r) Millar's Trustees v. Poison Fuller (1821), Jac. 198; Brum- (1897), 34Sc. L. R. 798. ridge v. Brumridge (1858), 27 (s) As to the whole of the Beav. 5. article, see judgment of West- (t) Supra. BUKY, L.C., in Wilkins v. Hogg KK'2 500 The Consequences of a Breach of Trust. Art. 93. Above pro- tective clause only applies to acts of co- trustees and not of agents. He would still be answerable for collusion if he handed over trust money to his co-trustee with reasonable ground for believing or suspecting that that trustee would commit a breach of trust; but no such case as this was made by the bill." In the more recent case of Pass v. Dundas («), the settlement contained a similar protective clause to that stated in the last illustration. Part of the trust estate consisted of a business, and one of the trustees authorised his co-trustee to draw money out of the bank for the jDurposes of the business, which mone}' the co-trustee misai^plied. It was held that, under the words of the clause, the trustee was protected. These clauses do not, however, protect a trustee against the acts of an agent who is not a co-trustee (x). Art. 94. — Trusters (jrueralJu entitled to Contn'hutiou inter .s^', hut nidfi he entith'd to he Indemnified inj Co-Trustee or Benepcianj ivho insticiated Breach. (1) As a general rule, where several trustees have been guilty of a breach of trust not amounting to actual fraud {y), those who are obliged to pay will be entitled to exact contribution from the others {z), notwithstanding that the former may be more blameworthy, or that the loss caused by the breach only occurred after the death or retirement of the trustee from whom contribution is sought (a). Provided nevertheless that : (a) where one of the trustees who was guilty of the breach is, or subsequently becomes (6), also a beneficiary, he will in general be unable .to claim contribution from his co-trustees until he has made good to the trust estate any loss («) (1880) 29 W. R. 332. [x) Bae V. Meeh (1889), 14 App. Cas. at p. 572 ; Wyman v. Paterson, [1900] A. C. 271 (both Scotch cases but equally applic- able to the English law : see latter case at p. 279). iy) Ait-Gen. v. Wilson (1840), Cr. & Ph. at p. 28 ; see Lingard V. Bromley (1812), 1 Ves. & B. 114 ; Tarleton v. Hornby (1835), 1 y. & Coll. Ex. 336. {z) Lingard v. Bromley, supra ; Birks V. 3Iicklethwait (1864), 33 Beav. 409 ; Att.-Gen. v. Davgars (1864), 33 Beav. 621. This claim to contribution is now considered a specialty debt (19 & 20 Vict, c. 97). (a) Jackson v. Dickinson, [1903] 1 Ch. 947. (b) Evans v. Benyon (1887), 37 Ch. D. 329. When Trustees Entitled to Contribution. 601 sustained by reason of the breach over and Art. 94. above his own beneficial interest (c) ; and — (b) where one of several trustees has been guilty of fraud, or has been the confidential solicitor of his co-trustees, he may have to indemnify them and to bear the whole loss himself (d) . (2) But the above rule gives no right of contribution to a trustee who alone committed a breach of trust, against a new trustee (even a beneficiary) subsequently appointed, notwithstanding that if he had insisted upon the matter being put right on his appointment, no loss would have occurred. (3) " Where a trustee commits a breach of trust at the instigation or request {e) or with the consent in writing of a beneficiary, the High Court may, if it thinks fit, (and notwithstanding that the beneficiary may be a married woman entitled for her separate use and restrained from anticipation), make such order as to the court seems just, for impounding all or any part of the interest of such beneficiary in the trust estate by way of indemnity to the trustee or person claiming through him " (/). (4) Such contribution or indemnity may be ordered in the action in which the liability for breach of trust is established without any counter-claim (^). Pakagkaph (1). A., one of the trustees of a settlement, allowed his co-trustee Contribution B. to have the trust fund to invest. B. handed it to an " out- J'j^JgJ'g^g" side broker," who misappropriated parts of it : — //('/(/, that (c) Chillingworth v. Chambers, Cli. 110. [1896] 1 Ch. 685, per A. L. {e) The request need not be Smith, L.J. in writing, although a mere {d) Bahin v. Hughes (1886), consent mns,t he : ^^le/- Kekewich, 31Ch. D.390; Blythv. Fladgate, J., in Griffith v. Hughes, [1892J [1891] 1 Ch. at p. 365 ; Fether- 3 Ch. 105 ; and per Lindley, stone, H. Y. West {1811), It. U.6Eq. L.J., in lie Somerset, Somerset v. 86; Lockhart v. Beilly (1856), Lord Poulett, [I8d^ I Ch. 231. 25 L. J. Ch. 697 ; Thompson v. (/) Trustee Act, 1893 (56& 57 Finch (1856), 22 Beav. 316; Vict. c. 53), s. 45. 8 De G. M. & G. 560 ; and see (g) Priestman v. Tindull Butler V. Butler (1877), 7 Ch. D. (1857), 24 Beav. 244 ; Ee Holt, 116 ; Wynne v. Tempest, [1897] 1 Holt v. Holt, [1897] 2 Ch. 525. 502 The Consequences of a Breach of Trust. Art. 94. Lien of trustee for contribution, on costs awarded to co-trust<2e. Trustee- beneficiary generally bound to indemnify co-trustee to extent of his beneficial interest. both trustees were in pari drlicto, and that B. was, therefore, entitled to contribution from A., although he had taken a more active part in the transaction which led to the loss ; and that, as between the trustees, time did not begin to run under the Statute of Limitations until the judgment declaring them liable for breach of trust (It). So where a large balance was found to be due jointly from a trustee and the representatives of a deceased co-trustee (i), but costs were given to both out of the trust estate, it was held (the estate of the deceased co-trustee being insolvent, and therefore unable to contribute) that the surviving trustee, upon paying the whole of the loss, was entitled to a lien for half of it on the costs awarded to the rej)resentatives of his deceased co-trustee {k). Paragraph (1) (a). This sub-paragraph is well illustrated by the case of Cltillinuiroiilt v. Chamhcn^ (/), where the whole of the authorities were elaborately discussed by the Court of Appeal. There the plaintiff and defendant, the trustees of a will, had committed breaches of trust by investing on insufficient securities, bear- ing a high rate of interest, and were declared to be jointly and severally liable to make good the loss to the trust estate. The plaintiff trustee, after some and before others of the invest- ments in question had been made, became also beneficially entitled to a share in the trust estate, as the successor in title of his deceased wife. He claimed to be entitled to contribution from the defendant trustee on the ground that they were both in jjari delicto. The court, however, rejected his claim, on the ground that the rule as to the right of a trustee to contribution from his co-trustee for loss occasioned to the estate by a breach of trust for which both are equally to blame, does not apply {li) Robinson v. Uarlcin, [1896] 2 Ch. 415. As to contri- bution by directors of a company where one of them has been made responsible for a breach of trust in misapplying the company's assets, see Famskill V. Edwards (1885), 31 Ch. D. 100. (i) It need scarcely be pointed out that the representatives of a deceased trustee are not liable for a breach of trust committed after his death, where he has left the trust fund in a proper state of investment (Be Palk, Chamberlain v. Drake (1892), 41 W. R. 28). Of course they may be liable where he has not so left it {Gibbins v. Taylor (1856), 22 Beav. 344). (A) Fletcher v. Green (1864), 33 Beav. 426 ; and see also Collings v. Wade, [1903] 1 Ir. R. 89, where the insolvent trustee subsequently died a rich man. (1) [1896] 1 Ch. 685. See also Moxliam v. Grant, [1900] 1 Q. B. 88, where directors of a company were held entitled to indemnity from shareholders who had been paid capital ultra vires. When Tkustees Entitled to Contribution. 503 where one of them is also a beneficiary, until he has made Art. 94. good any loss sustained over and above his own beneficial share in the property. In that case, the rule to be applied is, that under which the share or interest of a trustee-beneficiary who has assented to a breach of trust has to bear the whole loss ; and the trustee who is a beneficiary must therefore indemnify his co-trustee to the extent of his share or interest in the trust estate, and not merely to the extent of the benefit he has received. Lindley, M.R., in giving judgment, made the following important observations : " The plaintiff and the defendant being in pari delicto, the plaintift^'s right as trustee to contribution from the defendant as co-trustee to the extent of one half the loss is established by a long series of authorities, of which it is only necessary to mention Lingard v. Bromley {in) and Bahin v. Hughes {n). On the other hand the right of the defendant as trustee to be indemnified out of the share of the plaintiff" as cestui que trust against the consequences of a breach of trust committed at his request and for his benefit is equally indisputable. It was treated by Lord Eldon as clear law in his day, that a cestui que trust who concurs in a breach of trust is not entitled to relief against his co-trustee in respect of it : see Walker v. Symonds (o). In Lewin on Trusts, 8th ed., p. 918, 9th ed., p. 1053, many other authorities will be found to the same effect ; and Lord Eldon's state- ment of the law was distinctly approved and followed in Farrant v. Blanchford (p). Moreover it was decided, in Evans v. Benyon (q), that this doctrine applies to a person who becomes a cestui que trust after his concurrence. Further, in Butler v. Carter (r) Lord Eomilly stated distinctly, that where one of two trustees was himself a cestui que trust, he could not call upon his co-trustee to replace stock which they had both permitted to be misapplied. These cases are all based on obvious good sense ; for if I request a person to deal with my property in a particular way, and loss ensues, I cannot justly throw the blame on him. Whatever our liabilities may be to other people, still, as between him and me, the loss clearly ought to fall on me. Whether I am solely entitled to the property, or have only a share or a limited interest, still the loss which I sustain in respect of my share or interest must clearly be borne by me, not by him . . . The plaintiff contended on the authority otEaby v. Ridehalgh (s) that the plaintift"s liability as cestui que (m) (1812) 1 Ves. & B. 114. (g) (1887) 37 Cb. D. 329. (n) (1886) 31 Ch. D. 390. (r) (1868) L. R. 5 Eq. 276, 281. (0) (1818) 3 Swans. 1, 64. (s) (1855) 7 De G. M. & G. 104. (p) (1863) 1 De G. J. & S. 107. 504 The Consequences of a Breach of Trust. Art. 94. irusf to indemnify the defendant, and the extent of the plaintiff's inability to obtain relief against the defendant, was limited, not b}" the amount of the plaintiff's share in the trust estate, hut hy the benefit derived by the plaintiff from tlie hreadi of trust.'* [His lordship then showed that that case was no authority for such a proposition, and continued:] " Suppose a cestui que trust in remainder to induce his trustees to commit a breach of trust for the benefit of the tenant for life — perhaps his own father or mother — can such a remainderman compel the trustees to make good the loss or resist their claim to have it made good out of his interest when it falls in, if some other cestui que trust compels them to make the loss good '? I apprehend not ; and yet in the case suppoaed, the cestui que trust in remainder might not himself have derived any benefit at all from the breach.'''' Lord Justice Kay in the same case does not seem to have been willing to commit himself to the extent of the words above italicised {t) ; but decided that, as in that case, the plaintiff had received some benefit from the breach, he was primarily liable not merely to the extent of that benefit, but to the extent of his whole share. Paeageaph (1) (b). Cases in In Bahin v. Huyhes (u), Cotton, L.J., said : " On going into which one ^^g authorities there are very few cases in which one trustee trustee is . . "^ bound to who has been guilty with a co-trustee of breach of trust, and r^^^™"ltv^^^ held responsible, has successfully sought indemnity as against co-trustees. his co-trusfcee. LockJiart v. lieiUy (x) and Tliompson v. Finch (y) ai'e the only cases which appear to be reported. Now, in Lockhart v. Reilly, it appears from the report of the case in the Law Journal, that the trustee by whom the loss was sustained had been not only trustee, but had been and was a solicitor, and acting as solicitor for himself and his co-trustee ; and it was on his advice that Lockhart had relied in making the investment which gave rise to the action of the cestui que trust (z). ... Of course where one trustee has got the money into his own hands, and made use of it, he will be (t) ChilUngwoiih v. Chambers, {z) See also to same effect Ee [1896] 1 Ch., top of p. 707. Turner, Barker v. Ivimey, [1897] (m) (1886) 31 Ch. D. 390, 394 ; 1 Chi. 536; and Be Linsley, and see also Bohinson v. Ilarkin, Cuttley v. West, [1904] 2 Ch. 785, [1896] 2 Ch. 415. where \Vakrixgton, J., made a (a-) (1856) 25 L. J. Ch. 697. solicitor-trustee indemnify his ly) (1856) 22 Beav. 316, co-trustee against costs, merely 8 De Gr. M. & G. 560 ; but .see because he was negligent in also Warwick v. Bichardson furnishing accounts to the bene- (1842), 10 Mee. & W. 284. ficiaries. When Trustees Entitled to Contribution. 505 liable to his co-trustee to give him an indeiiinity (a). Now I Art. 94. think it wrong to lay down any limitation of the circumstances under which one trustee would be held liable to the other for indemnity, both having been held liable to the restiii qnr frnsf ; but so far as cases have gone at present, relief has only been granted against a trustee wIlo has himself got the benefit of the breach of trust, or between whom cuid Ids co-trustees there has existed a relation wliich will justify the court in treating him as solely liable for the breacJi of trust." It must not, however, be assumed from this judgment that soiicitor- a solicitor-trustee who advises the commission of a breach of trustee not trust is necessarily bound to indemnify his co-trustees ; for liable^t" ^ where the co-trustee has himself been an active particinator "'^iemiiify CO"trU.St€G in the breach of trust, and has not participated in it merely in consequence of the advice and control of the solicitor, he will have no right to be indemnified. Thus, where one of the trustees (a lady) joined in the importunities of her brother, and thus induced her co-trustee (a solicitor) to commit a breach of trust for the brother's benefit, it was held that she was not entitled to call upon the solicitor-trustee for an indemnity (b). Although, as stated by Lord Justice Cotton in Bahin v. Even where Hughes {c), a trustee who has got the trust money into his ^Q^^^^^^t 11 own hands and made use of it, will in general be liable to benefits by indemnify his co-trustee, yet he will not have to do so where always liable his breach of trust is only remotely connected with the loss ; to indemnify unless, of course, he was guilty of actual fraud. Thus the fact ^°"'^^'^='^^^'- of a borrower of trust funds on insufficient security repaying out of the money so borrowed a debt due from him to one of the trustees is not, of itself, sufficient to render the trustee accept- ing repayment liable, the borrower being under no restriction as to its application {d). Paragkaph (2). The primary liability of a trustee-beneficiary for a breach of trust, is confined to breaches committed with his privity, and does not extend to the case where his only breach consists in failing to take steps to put the original breach right when he subsequently becomes a trustee, even although, if he had done (a) See Fetherstone, H. v. West {d) ChillingwoHh v. Chambers, (1871), Ir. R. 6Eq. 86. [1896] 1 Ch. 685; Butler v (b) Read v. Gould, [1898] 2 Cli. Butler (1877), 7 Ch. D. 116 ; aud 250. see also Whitney v. Smith (1869), (c) (1886) 31 Ch. D. 390. L. R. 4 Ch. 513. 506 The Consequences of a Breach of Trust. Art. 94. so, there would probably have been no loss suffered. In such a case the trustee who committed the original breach and the subsequently appointed trustee-beneficiary who merely failed in his dut}^ of not insisting on the breach being set right are not in pari delicto. Both may be liable to the other beneficiaries, but the original breach is the fons et origo mali, and the original trustee who alone committed it is primarily responsible as between himself and the trustee subsequently appointed. This was decided by Warrington, J., in lie Foiintaine, Foiintaiiie v. Lord Avdwrst, in 1908 (in which the present writer was counsel), but the case is not reported on this point (which was not appealed). The facts are, however, reported in relation to other points (which were appealed) in [1909] 2 Ch. 382. Breaches of trust com- mitted at the instigation, or request, or with consent of bene- ficiaries. To render beneficiary liable to indemnify trustee, he must have known that act was a breach of trust. Paragraph (3). Section 45 of the Trustee Act, 1893 (56 & 57 Vict. c. 53) (which is set out verbatim in paragraph (3) of the present article), merely gave legislative sanction to the former rule of the court (e) with the following slight extensions, viz., it conferred on the court power (1) to impound the interest of a married woman although restrained from anticipation, and (2) to extend the relief to cases where the beneficiary has merely passively "consented in writing" to the breach as distin- guished from cases where he actively requested or instigated it (/). The Act, therefore, did not operate to curtail or affect the previously existing rights and remedies of trustees, nor alter the law except by giving greater power to the court to protect trustees (/). In order to make a beneficiary liable under s. 45 of the Act of 1893, he must not only have instigated or requested or consented in writing to the breach, but must also have known the facts which would render what was done a breach of trust. Thus, where a tenant for life undeniably requested trustees to invest the trust fund on a certain security, but it did not appear that he intended to be a party to a breach of trust, and in effect he left it to the trustees to determine whether the security was a proper one for the sum to be advanced, it was held that the trustees could not impound his life interest to (e) Fletcher v. Collis, [1905] 2 Ch. 24 ; and see Hanchett v. Briscoe (1856), 22 Beav. 496. (/) With regard to the pro- cedure where the plaintiff is an innocent beneficiary and the trustee desires to claim indemnity against another beneficiary, see I^e Holt, Holt V. Holt, [1897] 2 Ch. 525. When Trustees Entitled to Contribution. 507 make good the breach (.7). But if the tenant for life had Art. 94. been proved to have l,noivi)ifih/ requested a hreaek of trust, the decision would (even before the statute) have been otherwise (//) ; and in a more recent case it has been held that, quite apart from the statute, a tenant for life who consents to the trustee handing over the capital to his (the life tenant's) wife, cannot, neither can his trustee in bankruptcy, deny the right of the trustee who has had to replace the capital, to impound the income by way of indemnity during the life of the life tenant ; and this notwithstanding that the consent was not in writing (i). The right of a trustee to impound the interest of beneficiaries No right to who have instigated a breach is, however, only applicable for l^fj^dcT to the purpose of indemnifying him against the claims of other make pood beneficiaries. It does not extend to indemnify him against tenefidar^ other losses. Thus, where a trustee subsequently became interest, entitled to share in the trust fund as one of the next of kin of a beneficiary, it was held that he could not call on a beneficiary at whose instigation the breach was committed to indemnify him against loss as such next of kin, even although the bene- ficiary had given him an express covenant of indemnity (k). It is submitted that the same principle would apply a fortiori to the statutory right, which is not so strong in favour of the trustee as an express covenant. In the case of a married woman, the court will require Guilty know- stricter proof of her guilty knowledge than in the case of a man. conduTiveiv Even where she was not restrained from anticipation, and the proved in 1 1 s- • ^ -L 1 i 1 '^he case of charge by w^ay of nidemnity was express and not merely ^ married statutory, it was held that her position was very different to \vomaa. that of a male beneficiary. Fry, L.J., said {I) : " Before a trustee can claim the benefit of any charge or right of retainer against the interest of a married woman in the fund, it appears to us to be reasonable that he should show that the charge or right of retainer was created by her with a full knowledge of all the circumstances. It is probable that, in the case of a man of full years, the court would presume him so to be acting ; but in the case of a/cme covert, we do not think the presumption exists in favour of the trustee, whose primary duty it was to {g) Be Somerset, Somerset v. (i) Fletcher v. Collis, [I905J Lord Poulett, [1894] 1 Ch. 231 ; 2 Ch. 24. Mara v. Browne, [18951 2 Ch. (A;) Evans v. Benyon (1887), 69. 37 Ch. D. 329; c/. Orrett v. \h) Baby v. Bidehalgh (1855), Corser (1855), 21 Beav. 52. 7 De G. M. & G. 104 ; Bolton v. [1) Sawyer v. Sawyer (188o Curre, [1895] 1 Ch. 544. 28 Ch. D. 595. 508 The Consequences of a Breach of Trust. Art. 94. Where married woman restrained from alienation. Where trustees have wrongfully parted with trust fund to trustees of subsidiary settlement. protect the fund for her benefit. . . . All the cases in which the separate estate of a married woman has been held to be affected by a breach of trust are, as far as we are aware, cases in which she has been an actual actor in the transaction herself; such are the cases of Crosby y. CliLirch{m), Clire v. Careic {n), and Pemherton v. M'Gill (o). In no case, so far as we know, has her separate estate been charged on the mere ground of her having acquiesced in or approved of the breach of trust." (p). Indeed, where the married woman is restrained from aliena- tion, it would seem that the statutory power of the court to imi^ound her interest (which is merely discretionary) will only be exercised in the plainest cases, as, for instance, where she has been guilty of fraud ; and never, apparently, where the trustee knew that he was committing a breach of trust and yielded weakly to her solicitations {q). In any case where trustees, at the request of a beneficiary, advance the trust fund to her, with notice that she has settled it by another settlement, they cannot impound her income under such other settlement, because that income is not the interest of a beneficiary in the trust estate of whiclt theij are the trustees (r). (m) (1841) 3 Beav. 485. in) (1859) 1 Johns. & H. 199. (o) (1860) 1 Dr. &Sm. 266. ip) Queer e see Hanchett v. Briscoe (1856), 22 Beav. 496. iq) Eicketts v. Bicketts (1891), 64 L. T. 263 ; Bolton v. Curre, [1895] 1 Ch. 544 ; Be Holt, Holt V. Holt, [1897] 2 Ch. 525. But cf. Grifith v. Hughes, [1892] 3 Ch. 105, where Kekewich, J., exer- cised the power, and Molyneux V. Fletcher, [1898] 1 Q. B. 648, where Kennedy, J., seemed to hint that he might have exercised the power if the lady had been party to the action. (r) Bicketts v. Bicketts, supra. CHAPTER III. LIABILITY OF THIRD PARTIES AND BENEFICIARIES. ART. PAGE 95. — Liability of Third Parties or Beneficiaries who are Parties to a Breach of Trust 509 9G. — Following Trust Property into the Hands of Third Parties 518 Art. 95. — LiahiUtti of Third Parties or Beneficiaries who are Parties to a Breach of Trust. (1) All persons who knowingly (a) meclclle with trust funds, or mix themselves up with a hreach of trust, are equally liable with the trustees ; and equally subject to the restrictions on the right of pleading the Statutes of Limitation {h). (2) Where a person who is indebted to the trust estate (c) (whether by reason of being mixed up in a breach of trust or in respect of a simj^le debt) has an equitable interest in the trust property (whether original or derivative {d) ), it may be impounded to make good his liability to the trust estate. This right is available not only against him personally (e), but also against all persons claiming under him, including (a) See Be Kingston Cotton [1894] 1 Ch. 671. Mill Co. (No. 2), [1896] 1 Ch. (d) Jacubs v. Rylance (1874), 331 ; Williams v. Williams L. R. 17 Eq. 341 ; Doering v. (1881), 17 Ch. D. 437. Doering (1889), 42 Ch. D. 203 ; (b) Be Barney, Barney v. CMllingwoHhy. Chambers, [1896] Barney, [1892] 2 Ch. 265 ; Blytk 1 Ch. 685. V. Fladgate, [1891] 1 Ch. 337; (e) Woodyatt v. Gresley {1836), Dixon V. Dixon (1878), 9 Ch. B. 8 Sim. 180; Fuller v. Knight 587; Morgan v. Elford (1876), (1843), 6 Beav. 205; M'Gachen 4 Ch. D. 352; Lee v. Sankey v. Dew (1851), 15 Beav. 84; (1872), L. R. 15 Eq. 204 ; Bolje Vaugldon v. Noble (1864), 30 V. G're^orT/ (1865), 11 Jur. (N. s.) Beav. 34; Jacubs v. Rylance 98; Backham v. Siddall (1850), (1874), L. R. 17 Eq. 341; Be 1 Mac. & G. 607 ; and see I/yell Taylor, Taylor v. Wade, supra ; v. Zenwed?/ (1889), 14 App. Cas. Be Weston, Davies v. Tagart, at p. 459. [1900] 2 Ch. 164. (c) Be Taylor, Taylor v. Wade, 510 The Consequences of a Breach of Trust. Art. 95. Trust fund lent to tenant for life. Tenant for life may have to account for excessive interest. Third party with notice of breach is liable. Devisee or heir inter- fering. purchasers for value without notice (/). But where he takes a legal (as distinguished from an equitable) beneficial interest under the same settlement, that cannot be touched (^). (3) Paragraph (2) is semhle now applicable (in the discretion of the court) where the party is a married woman restrained from anticipation, if she has insti- gated or requested a breach of trust, or consented to it in writing (//) ; but not otherwise {i). Paragraph (1). A trustee, in breach of trust, lends the trust fund to the tenant for life. Here both the trustee and the tenant for life, (who has got the trust funds into his own hands by a breach of trust to which he was himself a party (k)), will be jointly and several}}^ liable to the beneficiaries. It would seem also, that where a tenant for life has been privy to an unauthorised investment made in order to give him an increased income, and a loss of capital has resulted, he is liable to be ordered to recouj) so much income as represents the difference between what he has received and what he ought to have received (/). A testator bequeathed a sum of i^GOO (which he described as being in the hands of one Gregory, to whom he had lent the same on the security of his note of hand) to his son-in-law Rolfe, upon certain trusts. Eolfe, the trustee, became indebted to Gregory, and in order to discharge part of that debt he delivered to Gregory the note of hand for ^600. It was held that, as Gregory had information of the manner of the bequest, he was a party to the fraudulent abstraction of the trust property, and liable to refund the amount ; and that being founded on fraud, the Statute of Limitations did not apply (m). So a party assuming to act as heir or devisee of a trustee, I (/) Jacubs V. liylance (1874), L. R. 17 Eq. 341; Doering v. Doe- ring (1889) 42 Ch. D. 203; Bolton V. Curre, [1895] 1 Ch. 544 ; Edgar V. Plomleij, [1900] A. C. 431. ig) Egbert v. Butter (1856), 21 Beav. 560; Fox v. Buckley (1876), 3 Ch. D. 508 ; but see Woodyntt V. Gresley (1836), 8 Sim. 180. (h) Semble, under b. 45 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), the beneficiaries being subrogated to the trustees. (i) Stanley v. Stanley (1878), 7 Ch. D. 589, and Hale v. Sheldrake (1889), 60 L. T. 292. (k) (Jowper v. Stoneham ( 1893), 68 L. T. 18. (I) See Grifiths v. PoHer ( 1858), 25 Beav. 236 ; but secus where no loss has resulted, see pp. 245, 246, supra. (m) Eolfe V. Gregory (1865), 11 Jur. (n.s.) 98; Dixon v. Dixon (1878), 9 Ch. D. 587. Liability of Third Parties, etc. 511 and committing an act which, if done by the trustee, would Art. 95. have been a breach of trust, cannot reheve himself of liability ■ — ■ by asserting that he was not acting as trustee (;()• Again a fund was standing to the account of two Bankers with trustees in the books of some bankers, who had notice that "'^^'^^ "^ it was a trust fund ; and by the direction of the tenant for ™^ "° ' life only, they transferred it to his account, and thereby obtained payment of a debt due from him to them. Held that the trustees might sue the bankers to have the trust fund replaced, and that the Statute of Limitations was not applicable (o). In this case the bankers profited by the breach, but it would seem to be immaterial ; for where a debtor to A., with full knowledge that she had assigned the debt to the trustees of her marriage settlement, paid part of it to her husband, he was held liable (p). In Eaves v. Hick>/mtiK»)s (18oS), 15 De C. F. & .7. 208; dimmer v. Vcs. 329; I'iUher v. Rawlins llV/^s/rr, [ 1902J 2 Ch. 163. (1872), Jj. K. 7 Ch. 259 ; Xojirfon, (m) See Wall;er v. Linom, etc. Co. V. JJuggan, [1893] A. C. [1907] 2 Ch. 104. 506 ; and as to the time at which Following Trust Property to Third Parties. 510 (c) the property being a chose in action (;?), consists Art. 96. of a negotiable instrument (o), or an instru- " ment which was intended by the parties to it to be transferable free from all equities attach- ing to it {p), (2) A person who has notice of a trust is bound to see that it is discharged ; and he will be liable if he accepts a forged discharge, however careful he may have been {q). Paragraph (1). The rule enunciated in this article is derived from two well- Hoiative known maxims, viz. : (1) where the equities are equal the law wai and prevails ; and (2) as between mere equitable claimants qui equitable jjrior in tempore, potior in jure est. In fact, where one of two ^ ^i™^"*^^- innocent parties must suffer, then as equity is not called upon to interfere on behalf of either of them, the common law must take its course ; and he who has got the legal estate, or its equivalent, will take priority over him who has a mere equit- able claim, notwithstanding that the title of the legal claimant may have accrued after that of the equitable one. The rule is very strikingly and completely illustrated by the case of Cave V. Cave (?•)• There a trustee, who was a solicitor, fraudulently misappropriated the trust fund, and with it bought an estate which was conveyed to his brother. The brother then mort- gaged the property, by legal, and afterwards by equitable mortgages, the solicitor trustee acting on all such occasions as the solicitor both for mortgagor and mortgagees. The parties beneficially entitled under the trust, claimed to follow their trust money into the property which had been bought with it, on the ground that, as the solicitor of the mortgagees had notice of the breach of trust, that notice must be imputed to the mortgagees themselves. It was held, however, that, as the {n) Tmion Y. Benson (1718), Cli. 758; Crouch v. Credit I P. Wms. 497 ; Ord v. White Fonder of England (1873), L. R. (1840), 3 Beav. 357 ; 31 angles v. 8 Q. B. 374 ; and see Judicature Dixon (1852), 3 H. L. Cas. 702 ; Act, 1873 (36 & 37 Vict. c. 66), Doering v. Doering (1889), 42 s. 25. Ch. D. 203. (q) Jared v. Clements, [1903] (o) Anon. (1697), Com. Eep. 43. 1 Ch. 428. ip) BeBlnkehj Ordnance Co., (r) (1880) 15 Ch. D. 639 ; and Ex paii/e New Zealand Banking see also Powell v. London and Corporation (1867), L. R. 3 Ch. Provincial Bank, [1893] 2 Ch. 154 ; Be General Estates Co., Ex 555 ; and Capell v. Winter, paHe City Bank (1868), L. R. 3 [1907] 2 Ch. 376. 620 The Consequences of a Breach of Trust. Art. 96. Notice of doubtful equity. Purchasing from two sets of trustees who are mortgagees under a contributory mortgage. Trust money paid in to trustee's private overdrawn account. solicitor was a party to the fraud, notice of the equity of the beneficiaries could not be constructively imputed to the clients, the mortgagees ; for the conduct of the agent raised a conclu- sive presumption that he would not communicate to the client the fact in controversy. Consequently their equities and the equity of the beneficiaries were equal ; whence it followed, on the maxim " where the equities are equal the law prevails," that the legal mortgagee, having the legal estate, took priority over the beneficiaries, but that the latter took priority over the equitable mortgagees because their equity was first in point of date (.s). To deprive a person who has acquired for valuable con- sideration a legal right to property, the notice of a superior equity must be notice of facts which would clearly show the existence of such equity, at all events, to a lawyer. Thus, a bond fide purchaser for value is not bound by notice of a very doubtful equity ; for instance, where the construction of a trust is ambiguous or equivocal (f). It has been held that where two sets of trustees have joined in advancing money on a contributory mortgage (on the face of which their fiduciary characters appeared), and they sell under their power of sale, the purchaser is not bound to see that each set of trustees get their due proportion of the purchase money — on the ground, apparently, that the purchase money is not the debt, but only a security for it {n). So, as has been already stated (x), where a trustee has over- drawn his banking account, his bankers have a first and paramount legal lien on all monies paid in by him, unless they have notice, not only that they are trust monies (y/), but also that the payment to them constitutes a breach of trust {z). It seems, however, difficult to reconcile this with the decision of Kekewich, J. in lie Blaihcrg and Ahrahams {a) that where a purchaser from mortgagees inadvertently learns that the mortgagees are such as trustees of a settlement, he is entitled (s) See also Tilcher v. Bnwlins (1872), L. K. 7 Ch. 259. it) Hardy v. Beeves (1800), 5 Ves. 426 ; Cordwell v. Maclcrill (1766), Ambl. 515; Warrick v. Warricic and Kniveton (1745), 3 Atk. 291 ; but see and con- Bider 'per Lord St. Leonards, Thompson v. Simpson (1841), 1 Dru. & War. 459. {u) Re Parker and Beech (1887), 56 L. J. Ch. 358, sed qucere. {x) Supra, p. 475. (y) Thomson v. Clydesdale Bank, [1893] A. C. 282. (s) Coleman v. Bucks and Oxon Union Bank, [1897] 2 Ch. 243 ; Union Bank of Australia V. Murray- Ay nsley, [1898] A. C. 693; Be Silencer (1881), 51 L. J. Ch. 271, but cf. Mutton v. Beate, [1900] 2 Ch. 79. (a) [1899] 2 Ch. 340. Following Trust Property to Third Parties. 521 to rfiquire proof that they are the properly appointed trustees Art. 96. of such settlement. On similar grounds it has been held that the solicitor of Costs paid a trustee is not debarred from accepting payments out of the ^^' f^^f«"'^'"B estate in respect of costs properly incurred, unless notice be his solicitor, brought home to him that, at the time when he accepted them, the trustee had been guilty of a breach of trust, such as would preclude him from resorting to the trust estate for payment of costs (h). But where a solicitor receives money with knowledge of a breach of trust, a summary order may be made upon him to pay it into court, without the necessity of an action (c). The subject of notice is now governed by s. 3 of the What consti- Conveyancing Act, 1882 (45 &^ 46 Vict. c. 39), which is tutes notice, retrospective ; consequently the old cases may be considered obsolete, except so far as they may throw light on the con- struction of the new rules. Notice is usually spoken of as either actual or constructive. Actual notice, under the new law, is defined as " an instrument, fact, or thing which is in the party's own knowledge." Constructive notice is defined as " an instrument, fact, or thing which would have come to the party's knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him, or which (in the same transaction with respect to which the question of notice arises) has come to the knowledge of his counsel, solicitor, or agent as sucli, or would have come to the know- ledge of his solicitor or agent if such inquiries and inspections had been made as ought reasonably to have been made by them." With regard to actual notice, knowledge is absolutely Actual necessary. Mere gossip or report is not sufficient. Whether "•'^'^^• the notice must be given by a party interested or his agent is perhaps doubtful. Lord St. Leonards seemed to think that it must. Mr. Dart, on the other hand, doubted it, and said it is one thing to say that " mere flying reports are not notice, and another to affirm that a purchaser could not be affected by a deliberate and particular statement of an adverse claim, unless made by a party interested. The credibility of the informant must surely be considered ; nor does there seem to be any reason why, where notice has been given to the purchaser prior to the commencement of the treaty, the court should not (h) Be Bliindell, Blmidell v. (c) Be Cnrroll, Brice v. Carroll, Blundell (1888), 40 Ch. D. 370. [1902] 2 Ch. 175. Cf. p. 432 et seq., stcpra. notice. 522 The Consequences of a Beeach of Trust. Ai't. 96. consider whether such notice must not have been present to his mind during the treaty." That passage was written by Mr. Dart before the passing of the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), and that statute seems to adopt his view, as the definition of actual notice (therein differing from the definition of constructive notice) does not state that the instrument, fact, or thing, must have come to the party's knowledge in the same transaction, nor have been notified by a party interested. Indeed, it would seem that actual notice is entirely a matter of evidence ; and if the court comes to the conclusion that a party had in fact, at the date of the trans- action, such knowledge as would operate on the mind of any rational man, or man of business, and make him act with reference to the knowledge he has so acquired, then he will be taken to have had actual notice. Whether he acquired his knowledge before or at the time of the transaction, and whether he acquired it from a party interested or not appears to be immaterial (d). Constructive With regard to constructive or imputed notice, on the other hand, it is quite clear that a man is not liable for notice acquired by his counsel, solicitor, or agent, unless it has come to their knowledge in the very transaction with respect to which the question of notice arises. The fact that a solicitor has been in the habit of acting for a particular person cannot reasonably constitute that solicitor the agent of the client to bind him by receiving notices or information ; for apart from the burden which it would impose on the memory of a solicitor, non constat that the client may not have ceased to regard him as his solicitor (e). It has also been held that constructive notice of an equity through counsel, solicitor, or agent, is not imjDuted to the client, where the counsel, solicitor, or agent is party to a fraud which would be exposed if he had communicated the notice to his client (/). This case must, however, be carefully distinguished from the earlier cases of Boursot v. Savage (g) and Bradley v. Riches (h), which seem at first sight in direct conflict with it. The point in Boursot v. Savar/e was, that where a client has notice of the existence of a trust, and intends to get the equitable interests of beneficiaries fro)u them, the (d) Lloyd V. Banks (1868), (1880), 14 Ch. D. 406. L. R. 3 Ch. 488 ; and see also (/) Cave v. Cave (1880), 15 Ch. London, etc. Co. v. Dtiggan, [1893] D. 639, cited as the 1st lUustra- App. Cas. 506, and Redman v. tion to this Article. JB(/mer (1889), 60 L. T. 385. (g) (1866) L. E. 2 Eq. 134. (e) Saffron Walden Second (/i) (1878) 9 Ch. D. 189. Benefit Building Society v. Bayner Following Trust Property to Third Parties. 523 fact that he gets the legal estate from a trustee who happens to Art. 96. be his solicitor, does not protect him if the solicitor forges the signatures of the beneficiaries. For he had notice of the equitable interests, and the fact that he was the innocent victim of a forgery does not give him an equal equity with the beneficiaries. In Bradley v. Riches the point decided was, that the presumption that a solicitor has communicated to his client facts which he ought to have made known is not rebutted by proof that it was the solicitor's interest to conceal the facts. There the fact omitted to be communicated was the existence of a valid mortgage ; whereas in Cave v. Cave the fact omitted to be communicated was the prior commission of a fraud by the solicitor himself (0- There is another species of imputed notice mentioned in the Omission Conveyancing Act of 1882, of quite as much importance as [nru-dVind that mentioned in the last illustration, viz., notice of " an inspections, instrument, fact, or thing which would have come to the party's knowledge, or to the knowledge of his solicitor or agent (not his counsel), if such inquiries or inspections had been made as ought reasonably to have been made by them." Thus, it has been held that whenever a purchaser, mortgagee or lessee, foregoes his strict right to title, whether by express contract or even by not negativing imjjUed statutory conditions, he runs the risk of having constructive notice imputed to him of anything contained in any of the documents which he ought to have examined {k). It must also be borne in mind, that notice of the existence of a deed aft'ecting the title, or which necessarily affects it, is notice of its contents if it can be got at. " Of course there may be cases where the deed cannot be got at, or for some other reason where, with the exercise of all the prudence in the world, you cannot see it, and then there will be no constructive notice affecting the title. There is also a class of cases, of which I think Jones v. Smith (I) is the most notorious, where a purchaser is told of a settlement which may or may not affect the title, and is told at the same time that it does not affect it, and in such cases there is no constructive notice (m). Supposing, as in Jones v. Smith, yon nve buying land of a married man, and you are told at the same time that {{) And see also and dist. settlement. For instance, there Lloyd's Bank v. Bullock, [1896] is a dictum of Pearson, J., to 2 Ch. 192. the effect that a person deahnp: (k) Patmany. Harland{l8Sl), with a married woman is not 17 Ch. D. 353. bound to inquiie whether slie (l) (1841) 1 Hare, 43. has a marriage settlement or (m) A fortiori where he has not : Lloyd's Banking Co. v. no notice of the existence of any Jones (1885), 29 Ch. D. 221. tees. 624 The Consequences of a Breach of Trust. Art. 96. there is a marriage settlement but that it does not embrace the land in question, you have no constructive notice of its contents. Because, although you know there is a settlement, you are told it does not affect the land at all. If every marriage settlement necessarily affected all a man's land, then you would have constructive notice ; but as a settlement may not relate to his land at all, or only to some other portions of it, the mere fact of your having heard of a settlement does not give you con- structive notice of its contents if you are told at the same time that it does not affect the land " («). Transfers of A similar instance of the same rule occurs in the case of arTpohi^ment' niortgages, where the purchase-money is expressed to be of new trus- advanced by several mortgagees on a joint account. No doubt in ninety-nine cases out of a hundred such mortgagees are trustees ; but as there is nothing on the face of the deed to show that the money is trust money, and as the fact of persons advancing money on a joint account does not necessarily imply that it is trust money, a purchaser or transferee never inquires whether there is a trust (o). It has even been the practice to ignore the fact that transfers of such mortgages on a change in the trusteeship only bear 10s. stamps if adjudicated, and this practice has now received statutory sanction by section 1.3 of the Conveyancing Act, 1911 (1 & 2 Geo. 5, c. 37), by which it is enacted that where on the transfer of a mort- gage the stamp duty, if payable according to the amount of the debt transferred, would exceed the sum of lO.s. a purchaser shall not, by reason only of the transfer bearing a 10s. stamp, ichether adjudicated or not, be deemed to have, or to have had notice of any trust, or that the transfer was made for effectuat- ing the appointment of a new trustee. This section is retro- spective. It is difficult, however, to see what was in the draftsman's mind when he included non-adjudicated stamps in the section, as in such cases the transferee would be still confronted with an apparently insufficiently stamped document, and yet if he enquired, and was told that it was merely a transfer on the appointment of new trustees, the Act would not protect him, as he would then have express notice of the trust. In addition to documents, constructive notice may be imputed to a purchaser from the state, appearance or occupa- tion of property. For instance, the existence of a seawall (n) Per Jessel, M.R., Patman bridge and Eiclcmnnsworth By. V. Enrland (1881), 17 Ch. D. 353. Co. (1883), 24 Ch. D. 720. (o) Re Harman and The Ux- Following Trust Property to Third Parties. G25 bounding property has been held to give constructive notice Art. 96. of a Hability to keep it in repair (j)). So notice of a tenancy is notice of its terms : and generally, where a person purchases property where a visible state of things exists, which could not legally exist, or is very unlikely to exist without the property being subject to some burden, he is taken to have notice of the nature and extent of the burden (c/). If an alienee of trust property is a volunteer, then the estate Absence of will remain burdened with the trust, whether he had notice of not'protect the trust (r) or not (.s) ; for a volunteer has no equity as a voiuuteer. against a true owner. However, some transfers, apparently voluntary, have been Transfer held to be equivalent to alienations for value. Thus, in Thorn- fn^o^court dike V. Hunt {t), a trustee of two different settlements having eiuivaient applied to his own use funds subject to one of the settlements, forVaiue!"^'^ replaced them by funds which, under a power of attorney from his co-trustee under the other, he transferred into the names of himself and his co-trustee in the former. In a suit in respect of breaches of trust of the former settlement, the trustees of it transferred the fund thus replaced into court : and it was held by the Court of Appeal that the transfer into court was equivalent to an alienation for value without notice, and that the beneficiaries under the other settlement could not follow the trust fund. So incumbrancers on a fund in court which has been trans- Part of ferred to a separate account before the incumbrances were -Q^courr created, are not postponed to prior equitable claims of other transferred beneficiaries under the same settlement, subsequently dis- actwint" ^ covered {u). For, when a fund is carried over to a separate account in an action for administering the trust, it is released from the general questions in the action, and becomes ear- marked as being subject only to the questions arising upon the particular matter referred to in the heading of the account {x). All other questions are in fact treated as res judicata. The fund has been awarded by the court to the parties falling under the heading of the separate account, and it is too late for others to try to upset the court's award. It is in fact equivalent to a transfer of the legal estate or interest. iv) norland v. Cook (1868), 3 De G. F. & J. 256; Be Bank- L. R. 6 Eq. 252. head's Trust (1856), 2 Kay & J. (q) Allen v. Seckham (1879), 560; and Dawson v. Fnnce, 11 Ch. D. 790. (1857), 2 De. G. & J. 41 ; but (r) Mansell v. Mansell (1732), cf. Cloutte v. Storey, [1911] 1 Ch. 2 P. Wins. 678. 18. „ ., ^ ^,7 is) lb.; Spurqeon v. Collier (u) Be Eyton,Bartletty. Charles (1758) 1 Edenf 55. (1890), 45 Ch. D. 458. it) (1859), 3 De G. & J. 563 ; (x) Per Lord Langdale, MK, and see Case v. James (1861), Be Jervoise LlS'Ld), 12 Be-dv. 209. 526 The Consequences of a Breach of Trust. Art. 96. Purchaser with notice from pur- chaser without. "Where purchaser has only acquired equitable interest. Where equities are equal and no legal estate in either claimant. Protection of legal estate may be lost by negligence. A purchaser with notice from a purchaser without notice is safe. If he were not, an innocent purchaser for vahie would be incapable of ever alienating the property which he had acquired without breach of duty : and such a restraint on alienation would necessarily create that stagnation against which the law has always set its face (//). The preceding examples all refer to cases in which the third party has acquired the legal title to property the subject of a trust, in which ease the validity of his title depends entirely on the absence of notice. Where, however, the third party has only acquired an equitable interest, the question of notice is, as a rule, immaterial. For he has not got the legal estate, and therefore his equity, being no stronger than that of the cestuis que trusts, the maxim, " Qui prior in tempore, liotior in jure est " applies. Thus, where a trustee, holding a mort- gage (z) or a lease (a), deposits the deed with another to secure an advance to himself, the lender will have no equity against the beneficiaries however bond fide he may have acted, and however free he may have been of notice of the trustee's fraud. On the same principle, where a trustee has wrongfully spent trust funds in the purchase of property, which he has after- wards sold to a third i)arty without notice, then, if the legal estate has not been conveyed to the third party, the bene- ficiaries will have priority over him (b). For they have a right (as has been shown in Art. 87) to follow the trust fund into the property into which it has been converted, and to take it or to have a charge upon it, at their election; and as their right was prior in time to that of the third party, and as he has not got the legal estate, the maxim above referred to applies (c). It would seem, however, from the most recent decision {d), that the protection of the legal estate may be lost b}' fraud, or by mere negligence in parting with the deeds if that negligence has alone rendered a fraud possible. Moreover, the decision in question went to the extent of affirming that if such negli- gence is committed by trustees, their beneficiaries are as much (y) See Brandlyn v. Ord ( 1738), 1 Atk. 571 ; Lowtlier v. Carlton (1741), 2 Atk. 242 ; Peacock v. Burt (1834), 4 L. J. (n.s.) Ch. 33 ; but the doctrine is not to be extended {West London Commer- cial Banlc V. Beluince Vermaneni Building Society {ISS5), 29 Ch. B. 954). {z) Newton v. Newton (1868), L. R. 4 Ch. 143 ; and Joyce v. iJe Moleyns (1845), 2 Jo. & Lat. 374. (a) Be Morgan, Pillgrem v. Pillgrem (1881), 18 Ch. D. 93. (6) Frith v. CaHland (1865), 2 Hem. & M. 417. (c) And see as to deposit of share certificates with blank transfers forming part of a trust estate, Powell v. London and Provincial Bank, [1893] 2 Ch. 555. (d) Walker v. Linom, [1907] 2 Ch. 104. Following Trust Property to Third Parties. 527 postponed as the trustees themselves would be if they were Art. 96. beneficial owners. Neither of these propositions can, however, ~ be accepted as free from doubt, owing to the conflict of authorities which seem to the present writer irreconcilable. Thus, one line of authorities lays down the principle, that either direct fraud, or negligence so gross as to amount to evidence of fraud, must be proved against a legal owner, to deprive him of the protection afforded by the legal estate ('). And another line of authorities supplements this by asserting that where the relation between the legal owner and custodian of the deeds and other persons claiming beneficially is that of trustee and cestui que trust or solicitor and client, then the cestui que trust or client does not lose priority by reason of the improper or negligent acts of the trustee or solicitor, unless of course the cestui que trust or client has notice of and is privy to the impropriety or negligence (/). On the other hand, in the case of Walker v. Linom (g), Parker, J., after elaborately reviewing all the authorities, came to the conclusion, that where trustees of a marriage settlement (to whom the legal fee simjDle in lands had been conveyed), negligently left, in the hands of the husband, the deed by which he had purchased the property, and thus enabled him to pose as the owner and mortgage it, their negligence was such that their legal estate must be postponed to the subse- quent equitable estate of the mortgagee and a purchaser from him, and that the heneficiaries tvere in no better jyosition than the trustees. Whether this decision was correct time alone can show, as no one of less authority than a Lord Justice of Appeal can effectively settle it. But if beneficiaries are to lose the benefit of their trustees' legal estate by reason of the latters' negligence, it seems a strange anomaly that they should not be equally prejudiced by their trustees' fraud, as in Neivton v. Newton (/i), Joyce v. De Moleyns{i), Cave v. Cave (k) and Frith v. Cartland (l). (e) Evans v. Bicknell (1801). Tfardv. T/ie Co., [1903] 2Cli. 654. 6 Ves. 174 ; Hewitt v. Loosemore (/) Per Stirling, L.J., Tai/lor (1851), 9 Hare 449; Eatcliffe v. v. London and County Banlcimj Barnard (1871), L. R. 6 Ch. 652 ; Co., [1901] 2 Cli., at p. 261 ; and Northern Counties, etc. Insurance see Oliver v. Hinton, [1899] 2 ( h. Co. V. WMpp (1884), 26 Ch. D. 264; and see Capell v. Mmter, 482 ; Be Greer, [1907] 1 Ir. R. [1907] 2 Cli. 376 ; but cf.Lloifds 57 ; and see doubt expressed by Bank v. Bullock, [1896] 2 Ch. 19-. H. L. in Taylor v. Bussell, [1892] ig) [1907] 2 Ch. 104 A. C. at p. 262 ; Be Castell and {h) (1868) L. II. 4 Ch. 143 Brown, Ltd., Boper v. The Co., (i) (1845) 2 Jo. & Lat. 374. [1898] 1 Ch. 315; Be Valletort {k) (1880) 15 Ch. D. 639 Sanitary Steam Laundry Co., (Z) (1865) 2 Hem. «Sc M. 41 /. 528 The Consequences of a Breach of Trust. Art. 96. C hoses in action are assigned subject to all equities. Negotiable instruments. Iiu)id fide purchasers from trustees cannot after notice get legal estate from them. Choses in action are generally taken subject to all equities affecting them, because at law they were originally transfer- able ; and although they are now transferable by statute, it directed that they should be transferred subject to all equities. Thus, in Turton v. Benson {m), a mother agreed to give her son, on his marriage, as a portion, a sum equal to that with which his intended father-in-law should endow the intended wife. The son, in order to induce the mother to give him a larger portion, entered into a collusive arrangement with the father-in-law, whereby, in consideration of the latter nominally endowing his daughter with £3,000, the son gave him a bond to repay him £1,000, part of it. This bond, being made upon a fraudulent consideration, was void in the hands of the father-in-law, and it was held that, being a chose in action, he could not confer a better title upon his assignee. Negotiable instruments are, however, an exception to the rule as to choses in action passing subject to all prior equities. For the common law, with regard to them, adopted the custom of merchants, and recognised that such instruments were transfer- able. Consequently, the transferee of a negotiable instrument has a legal, as well as an equitable, interest ; and where the equities are equal he is protected against prior equities by his legal title {n). Of course, however, where the transferee has notice (express or imputed (o) ) of prior equities, he will be postponed. The bond Jide purchaser of an equitable interest, without notice of an express trust, cannot defend his position by sub- sequently, and after notice, getting in an outstanding legal estate from the trustee ; for by so doing he would be guilty of taking part in a new breach of trust {p). But if he can perfect his legal title without being a party to a new breach of trust (as, for instance, by registering a transfer of shares which have been actually transferred before notice, or by getting in the legal estate from a third party), he may legitimately do so {q). (m) (1718) 1 P. Wms. 497. (w) London Joint Stock Banlc V. Simmons, [1892] A. C. 201. It is not infrequently a task of difficulty to determine whetlier debentures issued by public companies are negotiable instru- ments passing free from undis- closed equities or not. As to this, the reader is referred to Be yatal Investment Co. (1868), L. R. 3 Ch. 355 ; Be General Estates Co., Ex parte City Bank (1868), L. R. 3 Ch. 758; and Be Bomford Canal Co. (1883), 24 Ch. D. 85. (o) See Lord Sheffield v. London Joint Stock Bank (1888), 13 App. Cas. 333. (p) Saunders y. Dehew (1692), 2 Vern. 271 ; Collier v. M'Bean (1865), 34 Beav. 426 ; Sharpies v. Adams (1863), 32 Beav. 213; Carter v. Carter (1857), 3 Kay & J. 617. iq) Dodds v. Hills (1865), 2 Hem. & M. 424. INDEX. A. ABKOAD. See New Trustees. trustee may appoint attorney to do necessary acts, 296. See Delegation. ACCELEEATION of trust for sale, a breach of trust, 216. not cured by substituting tenant for life as vendor ea; post facto, 217. of trusts in remainder does not take place wliero intermediate trust void under Thellusson Act, 75. See Accumulation. ACCEPTANCE OF A TRUST. See Disclaimer. acts equivalent to, 190 et seq. acceptance of part and attempted disclaimer of rest of pro- perty, 192. acquiescence, 190, 191. action, allowing, to be brought in trustees' name, 190. allowing name to be used in relation to the trust property, ib conduct, 191. executing the settlement, 190. exercise of dominion, ib. express acceptance, ib. interfering with trust property, 190 et seq. unless interference plainly referable to some other ground, 191. or takes place after disclaimer, 192. joining in legacy duty receipt without actually receiving the money not conclusive, 191. long silence, ib. tnere promise to accept not sufficient, 188. onus of proving non-acceptance on the trustee, ib. probate, accepting, of will creating the trust, 190. rents, collecting, ib. duties of a trustee upon, 211 et seq. before accepting trust ought to disclose any conflict of interest and duty, 211, 212. bound to inquire what the property consists of, to ascertain the nature of the trusts and to go through the documents and notices relating to them, ib. existing mortgages, not bound to reinvestigate titles, nor adequacy of security, 213. invest trust money as soon as possible, should, 214. _ losses, must inquire as to, with a view to recovering them if possible, 213. must investigate the acts of predecessor, 212. see that trust funds are properly invested, 212. not justified in aUowing the trust fund to remain in the solo name of co-trustee, 214. T. ( 1 ) ^^^^ Index. ACCEPTANCE OF A TRVST— continued. duties of a trustee upon — continued. notices, should search for, 213. but not bound to ask old trustees whether they have received any, ib. result of not searching, may render a new trustee liable to incumbrancers, ib. ACCOUNTANT, trustee may employ, in cases of special difficulty, but not in ordinary cases, 297. unless he be ignorant or illiterate, 324. ACCOUNTS. See Information ; Peoduction. copies of, trustee not bound to furnish without payment of expenses, 323. duty of trustee to keep, and allow beneficiary to inspect, 323, 324 et seq. failure of trustee to keep, 324. may have to pay costs to the hearing or even the costs of taking the account, ib. no defence that trustee was illiterate, ib. inaccurate but bond fide, 325. premature application for, exposes plaintiff or even his solicitor to costs, ib. Statute of Limitations, as to, 489. summons for, practice not now acted on of ordering account to be delivered out of court, the costs being reserved, 324. trustees may employ accountant to keep, in cases of special difficulty, 297. or where trustee too illiterate to keep them, 324. vouching, trustee must produce necessary documents for, 325. ACCEETION TO TEUSTEES' ESTATE belongs to beneficiaries, 222—224, 317. corpus, and not income, 222 — 224. ACCUMULATE, duty of trustees of infant's property to, 463. liable for compound interest if they do not, ib. ACCUMULATION, direction for, until a given age exceeding twenty-one, generally futile, 356, 357. forbidden by Thellusson Act bevond certain prescribed periods, 65. but only invalid pro fanto, 74. to accumulate for payment of debts, or for raising portions, or for keeping property in repair, or for keeping up a leasehold policy are excepted from prohibition, 66. so also are trusts as to produce of growing timber, ib. for purchasing lands, further modern restriction as to, 66. Act is retrospective, 67 n. (gr). trusts in remainder after illegal trust for, are good, 75. but are not accelerated, 75. intermediate resulting trust, ib. the income results as capital and not as income, 225. ACQUIESCENCE. See Concurrence ; Laches. in breach of trust, 492 et seq., 494, 496. in voluntarv trust after learning its true nature, 99 ot seq. ( 2 ) Index. ACTION, administration of the trust, for, 455 et seq. See Administration by the Court. trustees bound to bring, for protection of trust property, if indemnified, 477. in case of refusal court will oblige liim to lend his name, ib. trustees may bring, for protection of trust property, 200. should in general act jointly as to, 433. if they sever in, thoy may be allowed onlj' one sot of costs, ib. aliter where it is necessary for one to lie plaintiff and the other defendant, ih. the proper plaintiffs in, against third parties, relating to tho trust property, 20G. ADLONISTRATION BY THE COURT, action for, 455 et seq. where no charge of wilful default, may be conimf>nced by originating summons, 455. costs of, in discretion of court, 455, 457 n. (2), 458 et seq. direction by testator that trustee shall commence action for, not binding on court, 458. order for, suspends powers but not duties of trustees, 353 et seq. aliter where only writ issued, 353, 354 n. (6). sumtnons for determination by judge without, of any questions arising in the administration of a trust, 447 et seq. See Originating Summons. under what circumstances court will make order for, 455 et acq. when trustee is justified in commencing action for, ib. ADJ^nNISTRATOR, query whether court can appoint a trusteo to hold share of infant next-of-kin in the hands of an, 383, 391. ADVANCEMENT of infants, implied power of, 333. not where infant merely contingently entitled, 333, 334. wife or child, of. See Resulting Trust (3). ADVANTAGE, trustee must not use his position for his own private, 315 et seq See Profits ; Solicitor. ADVERSE TITLE, trustee must not set up or support, 309 et seq. See Jus Tertii. ADVICE, accountants of, trustee entitled to seek where accounts are com- plicated, 297. although trustee may take, he must exercise his own judgment on every question, 295, 297 et seq. counsel, of, as to interpretation of trust instrument does not protect trustee, 258, 288, 299. nor, semble, as to his legal duties, 258. but may be evidence of reasonableness sufiBcient to excuse him under Act of 1896. . .258 n. (z) and (a). protects with regard to transactions with third parties, C./7.. defects of title to land bought or taken by way of security, 299. judge, of, trustee may apply for, by summons, 447 et seq. See Originating Summons. ( 3 ) mm2 Index. ABYICE— continued. solicitor, of, how far protects trustee, 258, 288, 299. trustee committing breach of trust in pursuance of legal or technical, how far indemnified, 258, 297, 298. may be evidence of diligence, 258 n. (a), trustee must exercise his own judgment as to choice of adviser, 295. not leave it to his solicitor, ib. valuer, of, as to advancing money on mortgage, how far it pro- tects trustee, 282—286. ought always to take, before selling or purchasing property, 265, 266. or joining in a joint sale of other property, 263. ADVISEE, even gratuitous and non-professional, is a quasi-trustee, 323. and cannot purchase from beneficiary, unless under abso- lutely fair conditions, ib. how far trustee liable for acting upon advice of skilled, 258, 282, 286, 297, 299. trustee must actively choose, and not leave choice to his solicitor, 295. See Delegation ; Investment ; Valuer. ADVOWSON, trustees for purchase should not buy an, 222. AFTER-ACQITIEED PROPERTY. See Executoky Trust, and Covenant to Settle. AGENT, is a constructive trustee, if the agency be of a confidential nature, 175, 183. what constitutes a confidential, 183. cannot purchase from himself, 320. when trustee may employ an, 294 et seq. See Delegation. must choose the agent himself, 294, 295. when liable for agent's negligence, 297 eti seq. whether death of one of several trustees who appointed him revokes his authority, 301. AGREEMENT TO CREATE A TRUST. See Executory Trust. creates a trust if based on value, 34. secus if voliintary, 46 et seq. effect of settlor's bankruptcy on, 35 n. (o), how far enforceable by third parties, ib. ALIEN may fee a cestui que trust, 91. trustee, 394. ALIENATION, discretionary trust on, for benefit of alienor or others, effect of. 68. how far trustee justified after attempted alienation in applying income for benefit of alienor, 362. gift over on, 68. where the property settled by the alienor, 107 n. (I). restraint on, without gift over, 00, 69. generally void except as regards women under coverture, 60, 69. aliter where trust created in Scotland, 69. Bee Anticipation. ( 4 j Index. ALLOWANCE. See Remuneration ; Reimbursement. ALTERNATIVE TRUSTS, one legal and tlio other illegal, 74. ANIMALS, trust for benefit of a class of auiinals useful to man, may bo en- forceable as a charity, 77. for the benefit of particular, not void except so far as it may transgress rule against perpetuities, ib. but not enforceable if trustee declines fo carry it out, no American decisions on the point, 77 n. (m). for anti-vivisection society may be good as a charitable trust, 77. ANNUAL EXPENSES are chargeable to income, 24G, 249 ot seq. See Tenant for Life and Remainderman. ANNUITY, charged on capital, how borne, 247. person for whom an, is directed to be purchased may claim capital money, 357. even though anticipation be restrained on pain of forfeiture, ib. ANTICIPATION, RESTRAINT ON, generally void, 60, 68, 361, 362 aliter, in case of pay, pensions or property inalienable by statute, 58 et seq. in. case of married woman during coverture, 68, 361, 362. in case of Scotch marriage settlements, 68. married woman restrained from, cannot release a breach of trust, 496. even if breach caused by her fraud, ib. expression of settlor's wish, and request that female bene- ficiary should not sell, imports, 26. interest of married woman restrained from, wlio instigates breach of trust may now be impounded, 501, 506 et seq. may iievertheless bar estate tail, 363. ANTI-VIVISECTION SOCIETY, trust in favour of, good, 77. APPOINTMENT OF NEW TRUSTEE. See New Trustees. APPOINTMENT OF TRUST PROPERTY under power in settlement, whether separate trustees can bo nominated to administer appointed fund, 425 et seq. in fraud of a tjower, trustees' liability for acting on, 291, 292. APPORTIONMENT of incomings and outgoings, 246 et seq. See Repairs op Trust Property ; Tenant for Life and Remainderman. APPRECIATION of securities is capital and not income, 222—224. APPROPRIATION . of securities to answer the share of residue of particular bene- ficiar-y, 222, 226 et seq. ( 5) Index. AFFROFRIATIO:^!^— continued. of securities to answer the share of residue of particular bene- ficiary — coidinued. appropriated share may be paid or transferred, when, 222, 226 et seq. by Court, 525. may be made even before the period of distribution, 222, 226. even although no immediate severance into shares, directed, 227. although no contemporaneous appropriation to the other beneficiai'ies, 226, 227 n. (6). once properly made, one appropriated share is not liable to make good deterioration of another, 222, 226. but only valid if appropriated securities w^ere both authorised and of sufficient value at date, 227 n. (&). to answer a contingent pecuniary legacy not allowed, 228. unless there is an implied direction to segregate, ib. principle on which the court acts in the appropriation of specifio land or chattels to answer a share of residue, ib. AEBITRATION", trustees may refer disputes to, 346. ARRANGEMENT, deeds of, with creditors, trustees may enter into, 346. See Illusory Trusts. ARTICLES. See Marriage Articles. ASSETS, appropriation of specific, 228. ASSIGN, beneficiary, of, stands in no better j^osition than his assignor, 514. trustee bound to investigate title of, 287 et seq. but not entitled to have deed of assignment handed over to him, 290. question whether trustee bound to investigate circum- stances surrounding the assignment where he suspects undue influence or fraud, ib. ATTORNEY. See Solicitor. appointed by beneficiary, trustee may safely pay to, 289, 352 e/ seq. trustee may appoint, and act through, in cases of necessity, 296. or, to act merely mimsterially, as to execute a deed, ib. but not to receive money, 299 et seq. AUCTIONEER, is a trustee of a deposit paid to him, 184. trustee may allow an, to receive, but iiot to retain deposit, 304, 305. AUDIT, right of trustee or beneficiary to require oflicial, 445, 446. AUGMENTATION of capital does not go to tenant for life, 223 et seq. AUTHORITY, beneficiary, of, 355 et seq. See Beneficiary. trustee, of, 327 et seq. See Powers of Trustee. trustee bound to give, enabling beneficiarj' to satisfy himself that trust stock ia intact, 325, ( 6 ) Index. B. BANE. See Banker. trustees may deposit in, for a reasonable time pending iavest- _ ment, 303, 305. six months said to be the maximum period, 305. the account should bo in their joint names " as trustees," 303. BANK ANNUITIES. See Investment. BANKER, custody of trust securities may be confided to, 2G8, 304. delegation to, of right to receive trust money is good in certain cases, 300 et seq. liability of, for parting with trust fund to wrong persons, 511. paramount lien of, where ho has no notice of the trust, 475, 521. but none where he has notice, 511. trust money may be left with, for a reasonable period ponding investment, 303, 305. trustee when liable for failure of, 303, 304 et seq. BANKRUPT TRUSTEE, may be removed by court, 389 et seq. whether may be removed hostilely under statutory' power, 389, 391 n. (;•)- receiver will be appointed in case of, 476,' 478. should prove against his own estate, where indebted to the trust, 262. trust property not liable to his creditors, 205. aliter if it cannot be identified, 474. BANKRUPTCY, of debtor to estate, duty of trustee to prove in, 262. settlor, of, effect on voluntary settlement, 101, 102. in no case invalidates it as against purchasers for value from the beneficiaries, 101. settlement of future acquired property, effect of upon, 101, 103. trust for personal enjoyment notwithstanding, is invalid, 08. aliter where trust is luitil, and then over, 68. See Discretionary Trust for Maintenance. unless the bankrupt was settlor, 68. trustee, of, 205 et seq. See Bankrupt Trustee. should prove against his own estate, 262. BARE TRUSTEE, devolution of estate of, between 1874 and 1882. ..360 et seq. meaning of, 368. not incapacitated from purchasing, 321. BEARER SECURITIES, custody of, 268, 304. m • i .-a trustee should not obtain unless expressly authorised, U.U. BENEFICIARIES, . ^, ^, . . .„ , ,. assigns of, are in no better position than their assignors it latter indebted to estate, 514. ^r oc^ ^ collectively may put an end to the trust, 35j, 35b et seq. aliter where under ^disability, 355. See next page under sub-head " power." concurrence of in breach of trust, 493, 496. ^^ See Breach of Trust, sub-head " (:oncurrence._ ^ constructive trustee for other bcni-ficiarics, 1.5, 1.6, IS-. debt owing from, to trust estate, 509, 514. ( 7 ) Index. BE^EFIGIABIES— continued. deceased, legatee of, can sue for breacli of trust where trustee is also executor of the beneficiary, 476 n. (2). definition of, 1. failui-e of, 153, 209. identity of, trustee liable for mistake as to, 287 et seq. impounding beneficial interest of, to make good breach of trust, 509, 510, 513 et seq. See Impounding Interest of Beneficiaiees. or debts due to the trust estate, 515. not applicable to legal beneficial interests, 510. instigating breach of trust, may have to indemnify trustee, 506. and also co-beneficiaries, 509, 510, 513 et seq. even where instigator is a married woman restrained from anticipation, 506, 507, 508, 517. laches of, may be a bar to relief, 492, 494 et seq. liability of, who are privy to a breach of trust, 509, 513 et seq. See Breach of Trust, sub-head " beneficiaries." liability of, to indemnify trustee — for expenses and disbursements, 429 et seq. See Eelmbursement. where they have instigated breach of trust, 501, 506 et seq. See Breach of Trust, sub-head " indemnity." married woman who has instigated breach of trust, liability of, 506, 507, 508. to co-beneficiaries, 511 et seq. trustee, 506, 507, 508. mistake of trustee as to identity of, 287 et seq. mortgagee of all beneficial interests, power of, 360. overpaid, how far liable to refund, 516. party to breach of trust, liable to co-beneficiaries, 509, 510, 513 et seq. and may have to indenmify trustee, 506 et seq. persons capable of being, 91 et seq. aliens, 91. animals, 77. corporations, 91. married women, 92. invention of separate use to protect, 92. no human beneficiary, trust not necessarily illegal if trustee willing to carry it out, 76 et seq. aliter in case of capricious trusts without human in- terest, 77. trust to keep tombs in repair, must be limited within rule against perpetuities, 76. possession, equitable tenant for life, how far entitled to, 363. power of beneficiaries collectively in special trust, 355 et seq. direction to settle on daughters, 357. on daughters and their issue, 358. to pay income to persons in succession, 359. to retain capital until beneficiary attains a given age, 356. unless intermediate income goes to someone else, ih. may, where all sui juris, put an end to trust, 355^ 356 et seq. even when there is a theoretical possibility of others being born, 360. mortgagee of all the beneficial interests cannot extinguish trust before foreclosure or sale, ih. property vested in at twenty-one, but payable at twenty-five, may be demanded at twenty-one, 356. aliter where intermediate interest does not go to same beneficiary, 357. («) Index. BENEFICIARIES— cowimwetZ. power of beneficiaries collectively in special tvuBi—cotit inued. purchase of annuity directed, beneficiary entitled to purchase money in place of annuity, 35'J. sell trust property, direction to, may be stayed by bene- ficiaries collectively, 357. subsidiary settlement, trustees of reversionary may join with life tenant under original trust in extinguishing it, 3UU n. ((0- power of one of several beneficiai'ies in a special trust, 3G1 et acq. alienate, may, his share and interest, 362. unless a married woman restrained from alienation, ih. and she cannot be restrained from barring estate tail, 363. or where gift over to another on alienation, ib. power of, in simple trust, 355 et seq. may put an end to trust, ib. trustee may consult, before exercising Ids discretion, 295. may jDurchase interest of, with proper safeguards, 315, 322 et seq. BILL IN PARLIAMENT, trustee may oppose, 331. but should obtain leave pf court, ib. BONA VACANTIA, 207 et seq. BONUS, shares, should be sold even where trustees authorised to retain original shares, 276. when capital and when income, 223 et seq. See Tenant for Life and Remainderman. BORROWER, trustee cannot be, of trust fund, however good the security be, 30y. BREACH OF TRUST, 459 et seq. acquiescence in by beneficiary, 492 et seq., 494, 496. beneficiaries, liability of, where privy, to a breach, 507 et seq., 513. to other beneficiaries to the extent of beneficial interest, 507 et seq., 513 et seq. large interest received by tenant for life where security proves insufficient, 508. no liability to account for part of interest on un- authorised security unless security insufficient, 240, 510. married woman beneficiary restrained from anlicipution, 517. money lent to life tenant, 508. plaintiff residuary legatee of beneficiary who was privy to breach, cannot enforce, 515. retainer of lite tenant's income to make good breach, 513. right of, extends to derivative as well as original interests, 514. but not to interests under ajiother trust created by tlie same will, ib. nor to legal as distinguished from equitable interests, 517. to make good debt due from beneficiai-y to e^slate, 514. debts payable by instalments, 515. lost by acceptance of composition by trustees, 515. where statute bai-red, 515. ( 9 ) Index. BREACH OF TRUST— continued. beneficiaries, liability of, where privy to a breach. — continued. to other beneficiaries to the extent of beneficial interest — contimced. privity and knowledge of beneficiary essential to render his beneficial interest liable, 516. to indemnify trustees, 501 et seq. [See infra, sub-head "indemnity."] carelessness, by reason of, 258 et seq. See Prudence. concurrence of, or release by beneficiaries, 493 et seq. to bind beneficiary he must be sui juris, unbiassed by undue influence, and either act with full knowledge, or retain the benefit of the breach, 429, 493 et seq. where all beneficiaries have not concurred, trustee may have right of indemnity against some who have instigated breach, 501, 506 et seq. See sub-head "indemnity." consent to, in writing may render a beneficiary liable to indemnify trustee, ib. consequences of, 460 et seq. consequential losses flowing from, 466, 467. contribution, trustees generally entitled to, intei' se, 500 et seq. See Contribution. lien for, on costs awarded to co-trustee, 502. court will compel performance of duty, or prevent the com- mission of a breach, 476 et seq. criminal proceedings may be taken with leave of Attorney- General where breach is fraudulent, 479. depreciated secuiitj', not necessarily duty of trustee to realise, 261. excused, may be, where trustee honest and reasonable, 481 tt seq. former trustees, committed by, 212. honest and reasonable trustee may be excused by court, 481 et seq. impounding beneficial interest of beneficiary who has instigated, to indemnify trustee, 501, 506 et seq. where beneficiary a feme covert, 501, 507, 508 et seq. impounding beneficial interest of beneficiary who is party to a breach of trust to make loss good to trust estate, 509, 513 et seq. right of co-beneficiaries takes priority over purchasers and mortgagees of guilty parties' interest, 514. imprudence, by reason of, 258 et seq. See Wilful Default. indemnity against, trustees entitled to, from co-trustee, who is also a beneficiary and privy to the breach, or who has acted fraudulently, or was solicitor to the trust, 501, 502, 505 et seq. special case required against mere solicitor trustee, 505. does not apply where original breach of A. was not set right on appointment of B. as new trustee, ib. from a beneficiary who has instigated breach, 501, 506 et seq. married woman only liable with guilty knowledge, 507. where restrained from anticipation, 508. where beneficiary has wrongfully received trust fund and resettled it, trustees have no right to indemnity, ib. must have known that it was a breach, 506. trustee can only require indemnity against liability to other beneficiaries and not against personal loss as one of the beneficiaries, 507. trustee receiving indirect benefit from breach not bound to indemnify co-trustee, 505. ( 10 ) Index. BREACH OF TmiST-continued. injunction to restrain contemplated, 47G et seq. mandatory, to compel performance of duty, -177. neglecting to renew lease, ib. sue a wrongdoer, ib. sale at an undervalue, 478. same persons trustees of conflicting trusts, 477. whether misconduct active or passive, 476. who may apply to the court for, ib. ignorant or illiterate trustee, by, 298, 324. innocent trustee may bo entitled to indemnity from less innocent one, 500, 504. instigator of breach may have to indemnify trustee, 501, 506 I et seq. joint and several liability of trustees for, 468. notwithstanding that some may have been more blame- worthy than others, ib. See sub-head " indemnity," siqjra. rule applies to all persons who meddle with trust property with notice of the trust, ib., n. (Z), 509 et seq. See Third Parties. but not to employees of trustees who had no right to employ them, 469. whole loss recoverable from any one of the trustees until 20 shillings in the pound paid, ib. laches of beneficiary may be a bar to relief, 492, 494 et seq. measure of the trustee's liability for, 459 et sen. amount by which the trust property has oeen depreciated, 459. cases in which there would have been a loss apart from breach of trust, 459, 460. or the breach consists in not getting a consent which would have been given, 461. direction to invest in consols disobeyed, trustees liable at option of beneficiai'ies either to purchase the amount of consols wliich the fund would havo purchased at the date at which it ought to havo been invested, or to pay the whole deficiency of the trust fund, ib. principles from which this inequitable rule has been deduced, ib. when choice of investments trustee can only be made to recoup actual loss, 462. outgoings allowed, ib. wrongfully parting with trust shares on which calls subsequently paid, ib. capital, loss of, through disobeying settlement, 214 ef seq., 460 et seq. allowing shares to be transferred to third pai-ties, on which shares the latter pay calls, 462. indirect losses between breach and ultimate reinvest- ment of trust fund in authorised securities, 466 et seq. example of deceased trustee's executors being liable for loss incurred by fresh breach of trust after his death, 467. interest where allowed, 460, 463 et seq. where trustee has received interest, 460. where trustee ouglit to have received it, 460, 463. accumulation directed, 403. delay in investing, ib. improper calling in of good investment, ib. ( 11 ) Index. BEEACH OF TRUST— continued. measure of the trustee's liability for — continued. interest where allowed — continued. where the breach was for trustee's private advantage, 400, 464 et seq. actual j)rofits or interest at 5 per cent, must be accounted for, 460, 464 et seq. reasons why 5 per cent, still payable, 466. compound interest may be allowed if circumstances justify inference that trustee has made it, 460, 465 et seq. mere neglect to withdraw trust funds from trustee's business not enough to render him liable for compound interest, 466. solicitor trustee using the trust fund in his business not charged compound interest, 465. where circumstances negative the inference that trustee has made compound interest he will not be charged it, 465 et seq. mortgage, which turns out to be an insufficient security for trust moneys, 460 et seq., 463 et seq. trustee only now liable for sum advanced in excess of what ought to have been advanced, 460, 463 et seq. aliter where the mortgaged property of a kind on which no advance of trust money ought to be made, 464. new law retrospective, 460 n. (6). trustee when entitled to oj)tion of taking over the security himself, 463. negligence, ai-ising from. See Negligence ; Prudence. property wrongfully acquired with trust funds becomes subject to the trust, 471 et seq. See Following Trust Property. aliter where the trust fimd cannot be traced, 473. if all beneficiaries sui juris they can elect to adopt the pro- perty so acquired, 471, 473. aliter if not sui juris or if one objects, 473. in that case property may, and should be, recon- verted by trustees, ih. where partly acquired with trust fund, and partly out of trustee's own money, beneficiaries have a first charge, 472, 474, 475. aliter if the trust fund cannot be traced into the pro- perty so acquired, 472, 473. trust fund paid into trustee's banking account, gives beneficiaries a lien on his balance, 475. subject to banker's lien, ih. but the actual money must be traced into the bank, 476. protection of beneficiaries against contemplated, 476 et seq. improper sale contemplated, 478. interlocutory injunction, 476. payment of money into court, 477, 478. no longer favoiu'ed by the court, 479 receiver, 477, 478. renewal of leases, 477. trustees of conflicting settlements, ib. trustees quarrelling, 478. use of trustee's name in actions against thirri parties ordered, 477. protection accorded t-o trustees against liability for, 481 et seq. acquiescence of beneficiary, 492 et seq., 494, 496. only available where sui juris with full knowledge and without being subjected to undue iufiuence, 429, 493, 497. even where he has had benefit of breach, 49G, 498. of married women, 496. ( 12 ) Index. BEEACH OE TBJJST—contimied. protection accorded to trustees against liability iov— continued. concurrence of, or release by beneficiaries, 492 et seq. distinction between, and right to indemnity, 493. contribution from co-trustees, 501 et seq. See Contribution. co-trustee, protection against the acts of, 498 et se^. form of clause giving complete protection, 499. if trustees have acted reasonably and honostljs and ought fairly to be excused, 481 et seq. provisions of Judicial Trustee Act, 1896, as to, ib. onus of proof, 81. reasonableness required as well as honest j'", 482. examples of reasonableness land unreasonableness, 482 et seq. even where trustee's conduct is reasonable and honest, yet before excusing him Court has to consider whether he ought under all the circumstances to be fairly excused, 482, 484. trustee company receiving remuneration, 484. indemnity from co-trustee or beneficiary who has instigated the breach [see supra, sub-head "indemnity"]. Statutes of Limitation, how far available, 484 et seq. accounts more than six years old, 486. acknowledgment of liability, 488. accounts kept by trustee's solicitors are not, 488. charges, how far applicable to, 492. constructive trusts, in cases of, 486, 491. date at which statute commences to run, 485, 488, 489. defaulting confidential agents, 489 n. (p), 491. difficulty of construing the statute, 486 et seq. ■embezzlement by trustee's agent, 489. failure to convert as directed by trust, 487. fraud, or fraudulent breach of trust, not within, 484, 4S9. fund expended in infant's maintenance, 488. illegal trust, in case of, 490. inapplicable where trustee retains trust property, 489. or has made a false statement, 489 et seq. income, payment of to life tenant, no acknowledgment that capital is intact, 488. insufficient security, ib. resulting trusts in cases of, 490. third parties (e.g. trustee's solicitor) receiving trust fund not protected by statute, 512, 513. trustee retaining trust property, not protected by, 484, 489, but where only remotely benefited trustee is pro- tected in absence of fraud, 490. where trustee has remotely benefited by breach, ib. receiver when appointed, 476 et seq. release by beneficiaries, 492 et seq. need not be under seal, 494. may be inferred from conduct, ib. by married women, 496. full knowledge of beneficiary essential to valicbty ot, 497. necessity of reciting actual breaches of trust, ib. retirement of trustee, in order that new trustees may commit, 269. security, calling in unnecessarily, 463. set-off of gain on one breach against loss on another generally disallowed, 469 et seq. aliter where the two br(>aches are only items of the same transaction, 469, 470. _ , i • i conflicting examples, fall m value of consols which ou<>ht to have been pm-chased, and rise m consoln whore proceeds of insufficientimortgage invested in, 4<0, 4< 1. ( 13 ) Index. BREACH OF THJJST— continued. set-off of gain on one breach against loss, &c. — continued. building (without authority) on the trust property allowerl to set-off gain against the price paid to the builder, 470. settlor, voluntary, is liable for breach of trust if he be one of the trustees, 468. simple contract debt, trustees' liability for, is a, 487. solicitor trustee, how far liable to indemnify co-trustccs who have been misled by his advice, 501, 505. Statutes of Limitation now apply to, 484 et seq. [See supra, sub-head "protection," etc.] third parties, liability of, for, 509 et seq. See Third Parties. voluntary settlor liable if one of the trustees, 468. waiver by beneficiaries, 492 et seq. beneficiaries must be sici juris have full knowledge and not be subjected to undue influence, 429, 493, 496, 497. concurrence of beneficiary, 493. by married women, 496. BREAKING A TRUST by direction of all parties beneficially interested, 355 et seq. BRIBE received by trustee belongs to trust estate, 316 et seq. to induce sale or lease invalidates the transaction, ib. BRICKFIELD, trustees should not advance money on mortgage of a, 285. BROKER, when trustee liable for default of. See Delegation. BUILDING SOCIETY, investment clauses of Trustee Act do not apply to funds of a. 275 n. (a). BUSINESS. See Trade. carried on by trustees. See Trade. how far trust estate liable for debts of. See Subrogation, conversion of, into a joint stock company, trustees cannot, in absence of express authority, accept price in shares or debentures, 218 et seq. court has jurisdiction to sanction in case of emergency, 218 et seq. but not merely for purpose of improving the trust estate, 220. employing trust money in trustees own, 460, 465 et seq. See Breach of Trust, sub-head "interest." 0. CALLING IN an insufiicient security, how far the duty of trustees, 261. good security unnecessarily, a breach of trust, 463. CALLS arc payable out of capital, and not out of income, 249. paid by trustees on shares forming part of trust property may be recovered by them, 430. sometimes fi'om beneficiary personalh^ 437. paid by third parties to wliom shares are transferred in breach of trust, 462. CANCELLATION OF SETTLEMENT. See Validity. CAPACITY. See Settlor. ( 14 ) Index. CAPITAL, appreciation of, is not income, 222—231. CAPITAL AND INCOJ^CE. See Tenant for Life and Re- mainderman. CAPRICIOUS TRUST. to defer the enjoyment of property by any person void, 77. CARE, trustee bound to exercise reasonable, 258 et s^eq. See Wilful Default. as to investments. See Investments. CARELESSNESS, liability of trustee for. See Prudence ; Negligence. CESTUI QUE TRUST. See Beneficiaries. CHARGE. See Conditional Gifts ; Incumbrance. corpus of property bears capital, and income bears interest. 246 et seq. current annual, borne by income, 246, 249. no resulting trust of residue after payment of, 153. Statute of Limitations applies to a, 492. tenant for life paying off, is entitled to be recouped out of corpus, 182. CHARITABLE SUBSCRIPTIONS, jurisdiction of court to sanction, 220. when trustees may make, 434. CHARITABLE TRUST not confined to trusts for benefit of human beings, 77. of private nature may give rise to a resulting trust, 152. CHATTELS, inventory of, should be made and kept by trustee, 268. trust of, may be declared verbally, 81. CHEQUE, imperfect gift of a, not equivalent to declaration of trust, 45 CHILD. See Advancement ; Infant ; Maintenance ; Resulting Trust (3) ; Illegitimate Children. CHILD-BEARING, woman sometimes presumed to be incapable of, 360. CHOSE IN ACTION, may be the subject of a trust, 55 et seq. now freely assignable, ib. purchaser of, takes subject to all equities, 528. seciis, if it be a negotiable instrument, ib. voluntary trust of, consisting of a covenant by the settldr with trustees, 48 et seq. CLAIMS, trustees may compromise or abandon, 346 et seq. CLASS, . . ^. ascertainment of, on originating summons, 447. power of disposal among a, may raise a trust, 15, 21 et seq. trusts in favour of, some of which may infringe rule against perpetuities, 74. CLERGYMAN, undue influence of, 97. trustees of not entitled to be indemnified by members, 438. ( 15 ) Index. COLLECTOK of income, trustees may employ, 303. COLLIERY, profits of, as between tenant for life and remainderman. See Tenant foe Life and Eemainderman. CO]\IMISSION. See Profit ; Eemuneration ; Solicitor Trustee. COMPANY. See Investment ; Directors ; Business. may purchase from a shareholder who is a trustee for sale, 319. aliter if " one man " company, ib. COMPENSATION for injury to inheritance cannot be kept by tenant for life, 177. COMPOUND INTEPtEST. See Breach of Trust. coMPEo:^nsE, by court on behalf of persons not sui juris, may entirely alter the trust, 221. power of trustee to effect a, 261, 262, 346 et seq. can only be exercised jointly, 348. query whether responsible for error of judgment where they act bo?id fide, 262, 347. CONCUEEENCE of cestui que trust in breach of trust. See Breach of Trust ; Protection. CONDITIONAL GIFTS, to A on condition of his doing something in favour of B not construed as a condition precedent or subsequent, but either as imposing a charge or creating a trust in B's favour, 31. where a charge would satisfy the intention it is preferred to a trust, 31 e* seq. e.g. gift to widow, she maintaining and educating chil- dren, 32 et seq. unsatisfactory state of the authorities, 33. neither trust, charge or condition where the words are merely explanatory of donor's motive, ib. but sometimes diflBcult to differentiate between words explanatory of motive and imperative words, 34. where there is a condition that donee shall, at request of trus- tee, stay all litigation, it is trustee's duty to make the re- quest, 263 n. (a). CONDUCT, may lead to inference that a person has constituted himself a trustee, 38, 43. CONFIDENTIAL ADVISEE a constructive trustee, 322. cannot purchase from person whom he is advising unless latter be separately advised, ib. CONFIDENTIAL AGENT, 183. CONFLICTING SETTLEMENTS, where same persons are trustees of both, receiver will be ap- pointed, 477. CONFOEMITY. See Eeceipts. CONSENT in writing of beneficiary to a breach of trust, may render liim liable to indemnify trustee to the extent of his beneficial interest, 501, 506 et seq. ( 1(3 ) Index. CONSENT— CO w^wi^etZ. where required must be obtained, 216. in one case held sufficient where given ex post facto, 210 n. ig). CONSIDERATION. See Valuable Consideration. total failure of, makes trust revocable, 92, 93. and raises resulting trust in favour of settlor, 149. See Eesulting Trust (1). who are considered parties privy to the, 49 et seq. in marriage contracts, 52, 53, 54. CONSTRUCTION. See Executed and Executory Trusts. questions of, may be determined on originating summons, 447, 449. CONSTRUCTIVE TRUSTS AND TRUSTEES, 147 et seq. agents, 175, 183. analysis of constructive trusts, 147. beneficial ownership not completely disposed of. See Resulting Trust. confidential agents are, 183. what constitutes a confidential agent, 183 et seq. definition of, 8. difiiculty of drawing line between, and express trusts, 8. distinction between, and express trust only important as regards Statutes of Limitation, 8. equitable interest not wholly disposed of, 149. See Resulting Trust. impossibility of carrying expressed purpose into effect, ib. instrument silent as to beneficial interest, ib. purpose indicated insufficient to exhaust the property, ib. equitable mortgagor, 181. fraud, property acquired by, 185. heir sometimes, of land for executor, 181. illegal express trust, 155. See Resulting Trust. lease, renewal of, to trustee or one of several beneficiaries, 175, 176. purchase of reversion expectant on, 176. legal and equitable estates not co-extensive and vested in same party, 179 et seq. limited owner who pays off incumbrance on fee, constructive trust in favour of, 182. or pays calls on settled shares, ib. or advances money for salvage, ib. mortgagee in possession is a, 181. but not with regard to tlie exercise of power of sale, 181. mortgagor under equitable mortgage is a, of the legal estate for the mortgagee, 181. partnership liens, 184. profits made by persons in fiduciary positions, 175 et seq. agents, profits made by, 175. not always fiduciary so as to become constructive trus- tees, 183 et seq. directors of companies, 178. cannot contract with company, ib. commissions accepted by, ib. father of infant owner of equity of redemption, purchasing from mortgagee, 316. joint tenants, 177, 323. mortgagees, 177, 181, 182, 323. partners, 177, 323. promoters of companies, 178. solicitor purchasing from client, 179. See Solicitor. T. ( 17 ) N N Index. CONSTRUCTIVE TRUSTS AND TRJJQTY.ES— continued. profits made by persons in fiduciarj' po^^itions — continued. tenant for life receiving money by way of solatium for injiizy to the inheritance, 177. or purchasing fee simple from mortgagee, ib. tenant fur life of leaseholds renewing lease to himself, 175, 176. trustee receiving commission from solicitor, 178. renewing lease to himself, 175, 176. purchase in another's name, 159 et seq. See Resulting Trust. remainderman is a, for personal representatives of tenant for life who has paid off a charge or calls on shares, 182. renewal of lease by one of several beneficiaries, 175, 176. resulting. See Resulting Trust. shareholders who have received dividends ultra vires are, for company, 185. stranger knowingly receiving trust funds is a, 185. tenant for life who pays off incumbrance is entitled to a con- structive trust in his favour on the inheritance, 182. improvements effected by, sometimes give rise to a con- structive trust in his favour, 182. is a trustee of profits made in relation to the fee simple, 177. third parties knowingly meddling with trust jjroperty, 185. vendor and jjurchaser may be, for each other, 180. CONSULT, trustee may, one of his beneficiaries before making investment, 295. See also Abxice. CONTINGENCY. See Trust Property. court will not generally give opinion on question depending on, 447, 452. may be disregarded by court when it is practically certain that it will not happen, 360. CONTINGENT LEGACY, appropriation of securities to answer not allowed, 228. CONTRACT. See Covenant ; Marriage Articles. to create a trust of specific property may make the property trust property if contract capable of specific performance, 34. CONTRIBUTION among trustees, 500 et seq. as general rule where one trustee has been sued for breach he is entitled to contribution from co-trustees, 500. trustee who has been guilty of fraud, or is solicitor to the others, may have to bear loss exclusively, 500, 504. but very few cases where this has happened, 504. solicitor trustee not liable to indemnify unless an active participation in breach, 505. where no fraud, not liable to indemnify even although he may have indirectly benefited by breach, 505. trustee who is also beneficiary generally bound to indemnify co-trustees to the extent of his beneficial interest, 502 et seq. but this is confined to breaches committed with his privity, and does not apply where his only default consists in not seeing that breach is put right, 505. trustee who is entitled to contribution has lien for sucla contri- bution on costs awarded out of the estate to his co-trustee, 502. as to indemnity by beneficiary who is not a trustee. See In- stigator OF Breach of Trust, ( 18 ) Index. CONTEIBUTORY MORTGAGE, trustees prohibited from investing on a, 282. effect on the other parties to such mortgage with notice of the trust, 512 n. (a). CONTROL OF COURT, funds under, how invested, 273 n. (u), CONTROL OP TRUSTEES, one trustee should not permit the other to have the sole control, 214, 302, 30G et seq. where confided to trustees, it gives them the legal estate, 193 et seq. CONVERSION. See Following Trust PnorERxy ; Resulting Trust (4). direction for, and investment of proceeds, no necessity to convert authorised securities if satisfactory, 271. mere power to effect, 174. resulting trust where, directed. See Resulting Trusts (4). unauthorised security, duty of trustee to effect. See Wasting AND Reversionary Property. wasting or reversionary property forming part of residuary estate, duty of trustee to effect. See Wasting and Rever- sionary Property. wrongful, of trust property. See Following Trust Property. CONVICT cannot create a trust, 91. trustee, trust estate does not vest in administrator, 205 n. (c). whether capable of making a will, 91 n. (c). CO-OWNERS may be constructive trustees, 177, 182. but capable of contracting with each other, ih., 323. COPYHOLDS, devolution of on death of trustee, 367, 369. how far capable of being settled by way of trust, 59. legal estate in is usually in trustee, 193, 195. trustee can demand admission to, 206. query whether can present purchaser for admission under Lord St. Leonards' Act, 339 et seq. vesting declarations, not applicable to, 397, 398. orders of, 401. voluntary covenant to surrender, not enforceable, 48. CORPORATION cannot be cestui que trust of lands except by mortmain licence, how far able to create trusts, 90. 91. stocks of, trustees may invest in, 273. trustee, may now be appointed, jointly with an individual, 395. CORPUS AND INCOJklE See Tenant for Life ; Remainderman. COSTS, accelerating trust for sale, in breach of trust, caused by, 434. accounts, of summons for, 324 et seq. of copies of, 325, 326. where bond fide mistake in, 325. administration action, of, 431, 435. expenses, usually payable out of capital, 247 et seq., 429. appointment of new trustees, of, 374, 375, 376 n. (o), 433. ( 19 ) N N 2 Index. COSTS— continued. breach of trust may deprive trustees of costs of litigation, 432. even where costs allowed they must first make breach of trust good, ib. 'business, costs incurred in cai'rying on, on behalf of the trust, 439. rights of creditors of, by subrogation, ib. capital and income, as between, 247 et seq., 429. See Tenant for Life ; Remainderman. costs, charges and expenses. See Reimbursements. defending foreclosure action, of, 257 n. (s). depriving trustee of liis costs, a severe proceeding, 432. appealable, ib. only proper when guilty of gross misconduct, ib. disclaimer, of, 189. former trustee, of, paid by new trustee, 433. incidence of, as between capital and income, 247 et seq. indemnity against, trustees sometimes entitled to personal, from beneficiaries, 429, 437 et seq. indebtedness of trustee to the trust must be discharged before he is entitled to costs, 438. information, of procuring, required by a beneficiarj^ 326. required by new trustee before accepting the trust, 433. interest on, not allowed, 435. lien of trustees, for, 429, 435. whether applies when settlement void, 435 et seq. or where will subsequently declared void, 436. lien on costs awarded to co-trustee, for his share of contribution for breach of trust, 502. " no order " as to trustee's costs, order so expressed, may deprive him of right to reimbursement, 432. originating summons, of, 448, 453. payment into court, of, 443 et seq. premature sale, of, 434. renewing leases, of, 256. repairs, of. See Repairs. retirement of trustee, caused by, 374, 375. right of trustees to be reimbursed all reasonable, 429 et seq. See Reimbursement. severance in defending or commencing proceedings, extra costs caused by, 433. allowed where good reason for the severance, ib. trustee refusing to convey, caused by, 400 n. Qn). trustees of clubs, no right to indemnity from members, 438. undue caution of trustee, caused by, 434. unreasonable conduct of trustee, ground for depriving liim of, 433 et seq. expenses disallowed, 434. unsuccessfully defending an action, of, 433. void settlement or will, costs of trustee of, 435, 436. where trustee owes money to estate, he must replace it before taking his costs, 438. result may be disastrous to his solicitor, 439. where trustee has mixed his own money with trust fund, 436. whether trustee can refuse to transfer trust property to new trustees until his costs, charges and expenses paid, 436. CO-TRUSTEE, effect of special protective clause as to acts and defaults of, 499. only applies to acts of co-trustees and not acts of agents, 500. even whore he may bo safely permitted to receive, he must not be allowed to retain trust moneys, 293, 308. ( 20 ) Index. CO-TRUSTEE— cow^mMec?. opinion of Lord Westbury as to responsibility for, 499. trustee cannot relieve himself of responsibility by deputing his duties to, 292, 305 et seq. retiring in order to enable, to commit broach of trust, 269. when trustee answerable for defaults, acts, or receipts of, 498 et seq. COTTAGE PROPERTY. investment on mortgage of, 285 n. (2). COUNSEL. how far trustee protected by advice of, 258, 288, 297, 299. COURT, administration of the trust by, 455 et seq. See ADMINISTRATION, appointment of new trustees by, 376, 387 et seq. See New Trustees. costs incurred in applications to. See Costs. deviations from the trust, power of to sanction, 214, 218 et seq. See Directions of Trust Instrument. general administration by, 455 et seq. See Administration. originating summons for determination by, of specific questions, 447 et seq. See Originating Summons. removal of trustee by, 373, 389, 390. retirement of trustee under sanction of, 373, 375. sanction of, to projjosed acts of trustee, 218 et seq., 447 et seq. See Originating Summons. securities authorised by, for the investment of funds under its control, 273. alleged inconsistency between, and Trustee Act, 1893, s. 1... 273 n. (u). suspension of trustee's powers on order for administration by, 353 et seq. trustee instituting administration action in, 455 et seq. not justifiable where all questions could be solved by pay- ment of fund into court or by issuing an originating summons, 458. what will justify a trustee in instituting an action, 455 et seq. when general administration will be ordered, ib. trustee may apply to, for directions when third party claima trust property, 310. when trustee may pay into, 442 et seq. effect of paying trust money into, 458. generally, trustees must not pay into court where question can be determined by means of originating summons, 443, 444. what sufficient justification for paying into, 442 et seq. to enable married women to assert equity to a settle- ment, 444, beneficiaries under disability, 443. dispute between beneficiaries, ib. money claimed by representative, ib. money payable in default of appointment, ib. reasonable doubt or claim, 444. undue caution, ib. COVENANT, enforceable as a rule by covenantee oiily, unless it is made with him as trustee for otlicrs intended to bo benefited. 38 — 54. aliter where intended for benefit of third parties and capable of being enforced by trustee at law, ib. And see Covenants to Settle. ( 21 ) Index. COVENANT— con^tHued?. partnership deed, in, providing benefits for widows and chil- dren of partner, how far enforceable by widow and chil- dren, 52. not capable of being released by partners, ib. COVENANT TO SETTLE after- acquired property, in marriage settlement, construction of. See Executory Trusts. enforceable by spouses and issue but not by ultimate re- versioners, 52 et seq. opinion of convej^ancing counsel to the court as to whether now a usual and proper clause in the absence of express stipulation, 88 n. (/). rule in Howe v. Loi-d Dartmouth does not apply to, 229. bankruptcy of covenantor before covenant performed, 57, 103. distinction between a trust of a covenant and a covenant to create a trust, 46 et seq. a voluntary covenant with A. to pay him a sum of money as trustee for B. creates an executed trust of a legal chose in action which B. can enforce, 46, 49 et seq. but a voluntary covenant with A. to execute a settlement in favour of B. cannot be enforced by B. as the contract is not enforceable at law, and will not be specifically performed in equity, 38, 48. even where legal chose in action is created it can only as a rule be enforced by party to the covenant unless on the true interpretation of the covenant it was intended to give third parties equitable rights, 38, 47, 49 et seq. covenants to settle after-acquired property in marriage settlements can only be enforced by spouses and issue there being no intention to confer equitable rights on persons taking in default of issue, 52 et seq. unless they be children of former marriage, 54. aliter as to covenants in partnership deeds providing benefits for widows and children of partners, 52. or covenants made with a committee for the benefit of a fluctuating class, 51. duty of trustee to enforce against settlor, 263. enforceable by whom, 38, 47 et seq. marriage settlements, in, as to other or future acquired property of the wife, 129—146. See Executory Trusts. COVERTUEE means effective marriage, 361 n. (rf). ceases on divorce, judicial separation or granting of a pro- tection order, ib. CEEATION OF TRUST. See Express Trust. CREDITORS of settlor on bankruptcy, voluntary settlement may be void against, 101 et seq. See Validity (3). settlement intended to defeat, may bo void under 13 Eliz. c. 5 ...101—113. See Validity (2). trustee personally liable to, of business carried on Ijy him, 439. but may generally claim reinibur.senient out of trust estate, ih. (22 ) Index. GREBlTORS—cojitimced. trustee personally liable to — continued. creditors may stand in trustees' shoes by way of subrogation, 439. but not where the trustee is indebted to the r:statc, 440. nor where incurring debts was a breach of trust even although trustee excused for breach on the ground of salvage, ib. where trust is for payment of debts, are not generally cestuis que trusts, 35 et seq. aliter where trust is to take effect only after settlor's death, 36. or where they are parties to the transaction, 35. in latter case they may take entire fund, although it exceeds the amount of their debts, 152. CRIMINAL PROCEEDINGS for breach of trust, 479. CROSS REMAINDERS, sometimes implied in executory trusts, 122. CROWN. See Failure. CURRENT EXPENSES usually borne by income, 246, 249 et seq. , See Tenant fob Life and Remainderman, sub-head " out- goings." CUSTODY of trust, documents or securities, 267, 304. title deeds of real estate, equitable life tenant may be entitled to, 268. trustee may allow co-trustee to; have, except in case of boai'er bonds, 309. when, may be confided to solicitor, banker, broker, etc. See Delegation, infra. D. DAMAGES may sometimes be recovered from a voluntar}' settlor. See Volun- tary Trust, sub-head "agreement." recovered by trustee from lessee for breacli of covenant are capital and not income, 239. recovered from trustee, may be reimbursed out of trust estate, 430. DEATH OF TRUSTEE, 364 et seq. (1) devise of trust estates prior to 1882. ..366 ci seq. query whether copyhold tru.st estates may not still be devised, 367, 369. whether devisee could execute the trust, depended on (he language of the settlement, 365, 369 erty, forming part of settled residuary estate, should generally sell, 228. See Reversion. when sold tenant for life may be entitled to part of proceeds for back income, 233, 242. wasting property, forming part of settled residuary estate, should generally sell, 228. See Wasting Property. E. EARMARK. See Folloaving Trust Property. ELECT, cestuis que trust may, to adopt breach of trust, 471, 472. person cannot, to take his share of real estate directed to bo sold, as land, unless the other cestuis que trusts concur, 358. liow far same rule applies where there is a mere power to sell, ib. may, to take money bequeathed upon trust to purchase an annuity for liim, 357. can elect, even though forbidden to sell or alienate annuity, ib. EMPLOY, direction to, a particular person, and to pay liim a salary out of trust fund, does not make him a cestui que trust, 37. ENJOYMENT, attempt to fetter generally futile, 69, 356, 361. ENTAIL, married woman debarred from anticipation may bar, 363. EQUITABLE ESTATE, definition of, 5. maj' be made the subject of a trlist, 54, 55. even of a voluntary trust, 41. postponed to legal estate where latter subsequently acquired for valuable consideration, and without notice, 518 et seq. but may take priority of legal estate where gross negligence in custody of deeds, 527. where no legal estate in either claimant, tlioy rank according to date, 519, 527. EQUITABLE MORTGAGE is subject to all prior eqtiities, 518, 527. mortgagor under an, is a constructive trustee, 181. trustee should not invest on an, 270, 281. EQUITIES, doubtful, notice of not binding on purchaser for value, 520. trustee should not invest trust money on, 270, 281. where there are any, the legal owner is a constructive trustee fro ianto, unless he is a purchaser without notice, 179, 180. ( 31 ) Index. EQUITY OF REDEMPTION, trustees should not purchase, 282 n. (;y). nor lend on mortgage of, 271, n. (o), 281. EQUITY TO A SETTLEMENT, trustee may retain married woman's absolute share to enable her to assert, 332. inapplicable where Married Women's Property Act applies, 333. ERROR, as to person equitably entitled, trustee liable for, 287. of judgment, trustee not liable for, 206. E.STATE OP TRUSTEE, 193 et seq. (1) cases in which trustee takes any estate, 193— 19G. control vested in trustees gives them a legiil estate, 194. convey, trust to, vests legal estate in trustees, 196. copyholds or leaseholds, trustees always take legal estate unless outstanding, 193. freeholds, prima facie trustees take no estate where trust is a simple trust unless given to their " use," 193 et seq., 195. aliter where the trust is a special trust, 193 et seq. beneficiary authorised to receive rents with appro- bation of trustees vests estate in trustees, 194. chai-ge of debts did not vest the legal estate, unless the trustees were directed to raise them, 195. aliter if the trustees had to raise and pay them, ih. control or discretion given to trustees gives them legal estate, 194. direction to pay rents vests estate in trustees, ib. direction to permit beneficiary to receive net rents has same effect, 193. direction to pay or permit beneficiary to receive gross rents, 194. power of sale given to trustees, 196. separate use of mari'ied woman, 195. freeholds and copyholds in one trust, 195. implied gift to trustees where no express gift to them, 194 n. (/). power of sale, whether it vests the legal estate, 196. special trust, in, trustees always take legal estate, 193 et seq. surrounding circumstances may vest the legal estate in trustees, 194 n. (/). trust for separate use of married woman gives legal estate to trustees, 195. use, devise to, of trustees gives them tlie legal estate, 193, 195. (2) the quantity of estate taken by the trustee, 196—202. clear intention to vest fee in trustees, 200. devise to their use, ib. devise to use of trustees in trust for A. for life, and after his death direct devise to C, gives trustees an estate only during A.'s life, 200. aliter where they are to stand seised for such person as A. shall appoint with a direct devise to C. in default of appointment, 201. trust to convey to A. gives trustf^es the foe, ib. deed construed strictly and will liberally, 196 et seq. but deeds not construed strictly where it would involve a contradiclion, 196, 198. .( 32 ) Index. ESTATE OP TRVSTEE-continiied. (2) the quantity of estate taken by tlio trustee — continued. deed construed strictly and will liberally — continued. grant by, to trustee and his heirs passes the feo simple even where a less estate would suffice, 196, 200. devise to trustees, now prima facie passes the foe simple, 197. unless an estate pttr autre vie would enable the trust to be performed, ib., 200. trust for married woman's separate use, 200. indefinite terms of years and determinable foes, im- plied before Wills Act, 1837... 197, 200. but abolished by that Act, 197 n. (?t). trusts to sell mortgage lease or apply rents for infant's maintenance vests the fee in trustees, 200. aliter before Wills Act, ih. fee vests if clear intention although an estate pur autre vie would suffice, 200, 201. larger estate than necessary not implied in order to pre- vent the oj^eration of rule in Shelley's Case or to obviate the failure of a contingent remainder, 199 et seq. separate use of married woman, trust for, only pritnd facia gives trustees an estate during her life, 200. trusts requiring the fee impliedly give them the fee, 197, 200. indefinite trusts in point of duration, 202. recurring trusts, 201. to convey, ib. maintain infants, 200. mortgage, ib. pay debts, ib. sell, ib. to " stand seised " for such persons as A. shall appoint, 201. (3) devolution of. See Devolution. (4) devise of. See Death of Trustee (3). (5) effect of Statutes of Limitation upon, 202 — 205. constructive trusts, in case of, lapse of time vests trustee's estate in beneficiary, 203. express trusts, in case of, the statutes never vest the trustee's estate even in sole beneficiary, 202 et seq. but semble may vest estate of one trustee who dis- appears in co-trustee, 203, 204. query in new trustee appointed in his place, 205. trustee's estate may be vested by statutes in a stranger, 202, 204. in that case both trustees and beneficiaries barred, ib. (6) incidents of, at law, 206, 207 et seq. admitted to copyholds, trustees entitled to be, 206. curtesy and dower, ib. entitled to custody of deeds, 207. liable to be rated, ib. creditors of trust business, ib. may bring actions, 206. not entitled to vote at elections, 207. proving in bankruptcies, 206. (7) on failure of beneficiary, 207. formerly trustees took realty absolutely, ib. T. ( 33 ) Index. ESTATE OF TRVSTEB— continued. (7) on failure of beneficiary — continued. formerly trustees took realty absolutely — continued. aliter, if beneficiarj^ devised the property to other trustees upon void trusts, 210. old law applied to constructive trustees, ib. under new law the Crown takes absolutely, 207. exception in case of executors, as to residue not dis- posed of, 208. ESTATE TAIL, married woman restrained from anticiijation is capable of barring, 363. under covenant to settle after-acquired property is not bound to bar, 136. EVIDENCE, when parol, admissible to prove an express trust, 78 — 86. See Writing. when parol evidence admissible to prove or disprove a resulting trust, 161 et, seq. See Eesultikg Trust. EXCHANGE, trustees have no power to, as a rule, 335. aliter, if they have both power to sell and also to purchase land, 337. EXCUSED, honest and reasonable trustee, may now be, for breach of trust, 481 et seq. See Breach of Trust, sub-head " protection," etc. EXECUTED TRUSTS. See Executory Trust. construed strictly, 119 — 122. definition of, 10. enforced, even although voluntary. See Voluntary Trust. executed trust for A. for life, with remainder to his heirs, •prima facie gives A. the fee, under the rule in Shellei/s Case, 120, 121. otherwise if trust merely executory, 121. EXECUTOE, court cannot appoint person to perform duties of, unless executor- ship ended and executor has become a trustee, 383, 391. purchasing part of the testator's assets from himself, 319 n. (?i). right of, to prefer creditors before decree for administration, 354. trustee, is, for purpose of statutory power to maintain infant legatee, 352. EXECUTORY TRUST, attempt to create a perpetuity will be construed so as to effect, as far as possible, testator's intentions, 121. construed liberally, 119 et seq. even where executed trust in same instrument construed strictly, 120. distinction between construction of, in wills and marriage articles, 126. covenants in marriage settlements to settle other or after-acquired property, 129—146. how far wife bound by, 129. declaration that property shall be settled, 130. covenant by husband alone that wife shall settle, ib. covenant by husband alone that he will settle, 131. covenant by husband alone that property shall be settled^ 132. ( 34 ) Index. EXECUTORY TRVST— continued. covenants in marriage settlements to settle other or alter-acquired property — continued. how far wife bound by — continued. effect of Married Women's Property Act, 132. where wife is infant, 133. property prima facie excluded, 133 et scq. income, ib. savings of income, 134. restraint on anticipation, 135. wife mere donee of general power, ib. gifts made by husband, 186 et seq. conflict of authorities, ib. to settle a definite interest in property, 142 et seq. to settle after-acquired property may include present pro- perty as well, 138, 140 et scq. restricted to property acquired by wife during the cover- ture, 139, 141. aliter with regai'd to husband, ib. query as to proj)erty vesting in him as adminis- trator of wife, 140. must be a change in wife's title, 141. e.ff. reversion falling into possession, 142. to settle present property includes property in reversion or contingency, 138. to settle property exceeding a stated value, 144 et seq. means actual and not actuarial value, ib. value means the total value of funds derived from same source, e.g. two legacies under the same will, ib., 145. where covenant limits the fund to be acquired at one and the same time, 145. definition of an, 10, 11. distinction between construction of executory trust created by will and one created by marriage articles, 120, 123. executed and executory trust in same instrument construed differently, 120. marriage articles construed so as to protect wife .and issue against the hus'band, 122 et seq. construed strictly where ijartics understood the terms they used, 123. " heirs," how construed in, ib. "issue," how construed in, 123 n. (o). powers, etc., in settlement of real estate directed by marriage articles, 124. powers, etc., in settlements of personal estate, 124, 125. Shelley's Case, rule in, negatived, if it would defeat claims of issue, 123. " strict settlement " of wife's estate, agreed by, liow carried out, 124. trusts of wife's estate under, approved bj' the court, 124, 125. Wild's Case, rule in, negatived, if it would defeat issue, 124. whether cancelled by subsequent bankruptcy of the settlor before the settlement is executed, 101, 103. only enforced if based on value. See Voluxtary Trusts ; Volunteer. powers implied in executory trusts, 122—125. Shelley's Case negatived if apparent tenant in tail made unim- peachable for waste or declared incapable of barring entail or the like, 121. separate use imported into, 121. trusts to be implied by executory settlements, ib., et scq. " usual powers " directed, what are, 124, 125. ( 35 ) 2 Index. EXECUTORY TRVST-continiied. wills, 122, 126—129. cases where strict construction would make trust illegal, 121. direction to settle daughter's shares strictly, how construed, 120. direction to settle on A. for life without impeachment of waste negatives rule in Shelley's Case, 121. so does explanation of settlor's intention which would be defeated if rule in Shelley's Case were applied, 120. direction to settle real estate to correspond with the limita- tions of a peerage, 127. direction to settle legacy on female legatee's marriage, ib. direction to settle female devisee's real estate, 128. direction to settle on a man upon marriage, etc., ib. distinction between jirinciples as to interpretation of marriage articles and wills, 126. intention of the testator is to prevail, 120. "issue," how construed, 127. EXPECTATION, mere words of, will not raise a trust, 33. See Language. EXPECTATIONS, agreement to share, valid, 56. EXPENSES, direction to pay, does not make employees beneficiaries, 16, 37. out of what fund payable, 246 et seq. See Tenant for Life and Remainderman (Outgoings). reimbursement of trustees, 429 et seq. See Reimbursement. EXPLANATION, words of. See Language. EXPRESS TRUST, analysis of, 13. construction of, 119 et seq. creation of, 15 et seq. formalities immaterial when trust based on value, ib. et seq. covenant to create sufficient, 34, 35. failure to appoint trustee immaterial, 17. formalities material where trust voluntary, 13, 38 et seq. See Voluntary Trust. language, 15 e^ seq. See Language. object, 60 et seq. See Illegal Trusts. uncertainty. See Uncertainty. validity. See Validity. writing, when necessary, 78 — 86. See Writing. definition of, 7. illusory, when only intended for convenience of creator of tho trust, 35. must be strictly obeyed, 214 — 217. how far court may sanction departure from, 217 — 221. EXTINGUISHMENT of a trust, may be effected by the collective action of all the beneficiaries, 355 et seq. See Beneficiary, power of, supra. of trustees' powers when all beneficial interests have become vested in possession, 358 et seq, ( 36 ) Index. P. FAILURE. See Resulting Trust. beneficiaries, of, 207. Crown now takes realty, 207, 208. takes personalty, ib. formerly, where trustees were trustees for other trustees, the latter took, 207. mortgagee, upon failure of mortgagor's heirs, formerly took absolutely, 210. trustee formerly took realty absolutely, 207. of consideration (e.g., marriage) with reference to which the trust was created, 92, 93 et seq. trust by lapse, etc. See Resulting Trust. trustee of, does not affect the trust, 17, 40. even in case of a voluntary trust if otherwise complete, 40. FAIRNESS, duty of trustees to observe, between beneficiaries, 222 et seq. See Tenant for Life and Remainderman. FATHER occupies a fiduciary position to his children, and gifts to and settlements in his favour are liable to be set aside, 98 et seq. cannot purchase infant child's property for himself from mortgagee selling under power of sale, 310. purchases by, in name of child, 160 et seq. See Resulting Trust (3). FAVOUR, trustees must not unduly, one of several beneficiaries, 222 et seq. See Tenant for Life and Remainderman. FEE SIMPLE, when the trustee takes, 190 et seq. See Estate of Trustee. FELON, estate of, trustee does not vest in administrator, 205 n. (c). trustee, unfitness of, 379, 387. whether he may be a settlor, 91. FEME COVERT. See Married Woman. FENCING, cost of. 256. FIDUCIARY PERSONS, agents are not always, 178, 183. See Agents. are constructive trustees, 175—179, 322. directors of companies, 178. gifts to, generally avoidable, 97 et seq. or to their wives or children, 98, 175, 176. gratuitous advisers are, and cannot profit by reason of the con- fidence reposed in them, 322. partial owners are prima facie, 176, 177. partners, 184. profits made by, 178. And see Profit. renewing leases to themselves, 175. shareholders in relation to ultra vires dividends, 185. solicitors. See Solicitor. tenants for life are, 176. FINES, on renewal of leases, how payable, 256. (37 ) Index. FIRE, insurance against, trustees may, but are not bound, to effect, 251. how premiums borne, ib. FOLLOWING TRUST PROPERTY, (1) in the hands of the trustee, 471 et seq. investment in unauthorised securities, the latter becomes subject to the trust, 472. money produced by wrongful sale of trust chattels, ib. purchase of land not authorised by trust, 473. trustees may sell again if any of the beneficiaries join, or if any of them are under disability, ib. trust property mixed with trustees' private property, 472, 473 etseq. beneficiaries have a charge on the entire property if their portion can be traced, 472, 474 et seq. if the trust property cannot be traced into the mixed property, beneficiaries have no charge, 472, 476. trust money paid by trustee into liis bank, bene- ficiaries have lien on his credit balance, 474. trust money mixed with other money and the total spent in purchase of an estate, 475. (2) into the hands of third parties, 518 et seq. if equities equal, possession of legal estate gives priority, 519, 526 et seq. protection of legal estate lost bj^ notice, 518 et seq. or negligence, 520. what amount of negligence sufficient to de- prive legal owner of protection, 520 et seq. if legal estate outstanding, the prioiities rank according to time of acquisition, 518, 520 et seq. if neither party has legal estate, they take in order of date, 518 et seq. notice of doubtful equity, 520. purchaser with notice from purchaser without, 527. what constitutes notice, 522 et seq. actual notice, ib. constructive notice, 521, 523. if tliird pai'ty a volunteer, or where property is merely equitable, or a chose in action, notice not neces- sary, 518, 525. seciis, if chose in action is negotiable, 528. if third party has no notice of trust, and was a purchaser for value, the priorities of him and beneficiaries are primarily determined by the question of who has legal estate, 519, 526 et seq. if third party has notice of trust, he is invariably postponed to the beneficiaries, 520. payment by trustee out of one trust property of defal- cations on another trust property, 525. protection of the legal estate may be lost by negligence, 526. purchaser without notice, when may protect himself by .subsequently getting in outstanding legal estate, 528. where part of fund in court is transferred to a separate account, that is equivalent to a transfer of the legal interest so as to free it from other equities in the suit, 525. FORECLOSED MORTGAGE, duty of trustee to sell, 231. unless the court sanctions delay, 220, 231. profit on sale of, is capital and not income, 224. ( 38 ) Index. FOREIGN LAND, how far capable of being settled by way of trust, 59. FOREIGN LAW, trustee not liable for ignorance of, causing disability in bene- ficiaries, 289. trusts invalid by, may be enforced in England, 61, 75—78. warning as to, where Englishwoman marries a foreigner, 76. may be incapable of ratifj'ing, 88. FORFEITURE, condition of, on beneficiary commencing litigation should be enforced by trustee, 263 n. (a). trust to evade, may give rise to a resulting trust, 158. FORGERY, trustee liable if he paj^s money in consequence of, to wrong person, 267, 287, 288. so also if he pays on the faith of a forged marriage certifi- cate, 288. FORMALITIES, immaterial where trust based on value, 15 et seq. material where trust voluntary, 38 et seq. Sec Voluntary Trust. FRAUD, appointment which trustee suspects to be a, on a power, trustee cannot safely act on, 291. query whether liable even if he has no suspicion, 292. assign of beneficiary, of, in procuring assignment, how far trustee liable for acting on assignment, 290 et seq. where assignment is prima facie valid, 291. where assignment is prima facie voidable, ib. converts a wrongdoer into a trustee, 184. settlor, of, 157 et seq. See Resulting Trust ; and Validity of a Trust (2), (3), and third party, of, causing trustee to pay to wrong person, how far trustee liable for, 288. trustee's solicitor or agent, of, whether trustee liable for, 299. See Delegation. whereby a settlor is induced not to make a will or not to comply with Statute of Frauds, 79, 83—86. See Writing. by one of two joint legatees, 84. whereby a settlor is induced to create a trust, 97. See Validity (1). FRAUD ON A POWER. See Fraud, supra, sub-head "appoint- ment." FRAUDS, STATUTE OF, 78—88. See Writing. FRAUDULENT, breach of trust, a crime, 479. intention of settlor, does not estop him claiming a resulting trust, 156 et seq. whether settlement irrebuttably presumed to be, from the neces- sary consequence of it, 104 et seq., 110 et seq. See Validity (2). FUTURE PROPERTY, assignment of, is nothing more than a covenant to assign if and when it comes into existence, 101. (39) Index. FUTURE FHOTERTY— continued. assignment of, is not void by reason of bankruptcy before pro- perty comes into existence, 101, 103. is void by reason of bankruptcy after property comes into existence and before it is formally transferred, 101. settlement of, valid, 56. wife's, in marriage settlements, see Executory Trusts, sub-head " covenants in marriage settle- ments." G. GAIN by reason of one breach of trust cannot be set off by trustee against loss on another distinct breach, 470. aliter where loss and gain arose out of the same breach, 471. See Profit. GAINER by breach of trust must pro iaw^o indemnify the trustee, 497, 498. GENERAL ADMINISTRATION, 455-458. See Administration. GIFT, fiduciary person, to, generally voidable, 97 et seq. or to his wife or child, 98, 175, 176. See Validity (1), sub-head " undue influence." imperfect voluntarj', is not equivalent to a declaration of trust, 44, 45. voluntary, when it raises a resulting trust, 159, 161 et seq. See Resulting Trust, GRATUITOUSLY, duty of trustee to act, 311 et seq. See Remuneration of Trustee. GROUND RENTS, freehold, are real estate, and trustees may invest on mortgage, but not in purchase of them, 272 n. {q). GUARDIAN, payment of income of infant beneficiary to, 348. undue influence of, 98. H. HAZARDOUS SECURITIES, duty of new trustee to realise, where not specifically settled, 228 et seq. And see Wasting and Reversionary Property. HORSES. See Animals. HOUSE, trust to keep a, shut up, is void, 77. HOWE V. LORD DART3I0UTH, application of income under, pending conversion, 233 et seq. rule in, 228 et seq. See Tenant for Life and Remainderman. restricted to settled residuary legacies, 233. not applicable to covenants to settle after-acquired property, 229. ( 40 ) Index. HUSBAND, .^, , appropriating income settled to wife's separate use with her consent, 465 n. (c). imperfect gift by, to wife, 46. is not a proper person to be appointed a trustee, 394. meaning of, in executory trust, 129, 129 n. (r). IDENTITY OF CESTUI QUE TRUST, trustee is responsible for mistake in, however careful he may have been, 287 et seq. See Mistake. IGNOEANT SETTLOR, when trust voidable by, 93 et seq. IGNORANT TRUSTEE as responsible for want of ordinary care and prudence as a more educated one would be, 298. may employ accountant, 324. ILLEGAL TRUST, 60-78, animals, trusts in favour of, how far valid, ^^-^^^^^^^^^^^^^ . as to object. See Accumulations ; Descent and Distribution Perpetuities ; Bankruptcy ; Anticipation ; Immoral Trusts ; Resulting Trusts ; Capricious Trust ; Validity. as to subject-matter. See Property. capricious trusts relating to inanimate objects, li. tomb, trust to keep in repair, 76. •„ -p^^ionrl fin 7'", under law of settlor's domicile may b© binding in England 60, io. warning as to English women marrying foreigners, tb void, but does not vitiate other trusts in the same settlement unconnected with it, 60, 73 et seq. aliter if they cannot be dissevered, 73. trusts evading mortmain, 159. , . „ . . , remainders to take effect after trusts infringing rule against perpetuities, 73, 158. in favour of a class, 74. trusts infringing Tliellusson Act, ^4^, lo8 remainders after such trusts, ib, lo9. not accelerated, ih. alternative trusts, some legal and the others illegal, /4. ILLEGITIMATE CHILDREN, 69. See Immoral Trusts. purchases in the name of, resulting trust not implied, 166. ILLICIT PROFITS. See Profits. ^^^SS"weI?'wfthV^%rty in a particular way, may only be fo? benefit or convenience of person giving the direction, direction to employ a particular pejson gives that person no ricrht to insist on being employed, 6i. _ di^e^tion to pay costs, charges, and expenses gives the persons t^ whom they are to be paid no rights as against the pro- diJe'ctiok' to. pay creditors generally, of the party giving the direction, 35. • • i <^ Qr- instances in wliich the creditors may acquire right., 36. ( 41 ) Index. ILLUSORY TBJJSTS— continued. direction to pay creditors generally — continued. tJiey may even take the entire fund, although the result may be to overpay them, 152. trust to pay creditors after settlor's death makes them bene- ficiaries, 36. grant of prize money to a Government official for distribution, does not make the soldiers among whom it is distributable cestuis que trusts, 37. IMMORAL TRUSTS, 60, 69. if executed, cannot be revoked, 15G at seq. See Resulting Trusts (2). in favour of future illegitimate cliildren void, 69. aliter in favour of a testator's own future illegitimate children, ib. restrictive of marriage, 71 — 73. See Marriage. resulting trusts hj reason of, 156 et seq. See Resulting Trusts (2). separation deeds, 70. trust for wife so long as she shall cohabit, and then for husband, not invalid, 71. trust for deserted wife so long as she remains separated, 71. will not viti.at* other trusts in same settlement unconnected with the illegal purpose, 60, 73. IMPARTIAL, duty of trustee to be, 222 et seq., 280, 281. See Tenant for Life and Remainderman. unless left to his absolute and unfettered discretion, 328. must not exert influence with third parties in favour of one and against another beneficiary, 223. IMPERFECT GIFT, 38, 44 et seq. See Voluntary Trusts. by delivery of scrip, 45 n. (_/). cheque, 45. memorandum of intention to give a debenture bond, ib. in favour of wife, 46. not con.strued as a declaration of trust, 38, 44 et seq. IMPLIED DEVISE of legal estate to trustee, 194 n. (/). IMPLIED TRUSTS, 9. IMPOUXDIXG INTERESTS OF BENEFICIARIES, (1) at suit of other beneficiaries, 513 ei seq. assigns of beneficiary equally liable with himself, 514. breach of trust, to which beneficiary was privy, 509, 513. debt to estate, to make good, 514. et seq. even where statute-barred, 515. derivative shares, right applies against, 514. innocent overpayment to beneficiary, how far rule applies to, 516. Ze.9aZ beneficial interests, rule inapplicable to, 516 et seq. married woman restrained from anticipation, whether rule applies to, 517 et seq. (2) at suit of trustee to indemnify him against claims for breacli of trust, 509. beneficiary who is also trustee generally bound to indem- nify co-trustee to extent of his beneficial interest, 502. beneficiary who has instigated breach or consented in writing to it may be liable to have his interest impounded, 501, 506. ( 42 ) Index. impounding interests of beneficiaries— co»^?«.«e^. (2) at suit of trustee — continued. beneficiary who has instigated breach — continued. guilty knowledge essential, 506. especially in case of married woman, whether restrained from antici^jation or not, 507, 508. right does not extend to make good beneficial interest of trustee in the fund, 507. nor to cases where the guilty beneficiary has settled proceeds of the breach by a subsidiary settlement, 508. IMPROVEMENTS, effected by tenant for life in exceptional cases entitle him to a charge on inheritance, 182. necessary for enabling settled property to be let, 255. what, a trustee may make, 332. IMPROVIDENT SALE, a breach of trust, 265. may be restrained by injunction, 478. IN PARI DELICTO RULE, application of, to illegal trusts, 155 et seq. difference between English and American decisions, 155 n. (Z). INCIDENCE OF EXPENSES, 246 et seq. See Tenant for Life and Remainderman. INCOME, collection of, may be delegated to collector or one of several trustees, 307. indefinite gift of, may infringe rule against perpetuities, 63. intermediate, of contingent legacies, 351. life tenant not always entitled to the whole, 233 — 246. See Tenant for Life and Remainderman. maintenance of infants out of. See Maintenance. trustee should not favour tenant for life by getting a larger income at a risk to the capital, 223, 280. what outgoings chargeable to, 246^257. See Tenant for Life and Remainderman. INCOMPLETE GIFT. See Imperfect Gift. INCUMBRANCE, discharge of, by tenant for life creates a constructive trust in his favour, 182. how borne as between tenant for life and remaindermen, 247. trustees paying to beneficiary who has created an, on his interest, liable to incumbrancer if he has notice, or if he has omitted to seai'ch trust papers for notice, 212. not bound to answer inquiries as to, created by any of their beneficiaries, 325. but if they do answer erroneously they may be liable, 214, 325, 326. INDEMNITY, beneficiary, by, to trustee for disbursements and costs, 428, 435. not in case of special trusts, 438. not applicable to trustees of clubs, ib. cases in which one trustee who is mainly to blame may have to give, to co-trustees, 500, 504 et seq. express declaration, giving, against acts and defaults of co-trustee, 499. gainer by or instigator of breach of trust must give, to trustee, See Instigator. 501, 506 et seq. lien on trust property by way of, 429 et seq. See Reimbursement. ( 43) Index. INFANT, advancement of, 333. cannot general Ij'^ be a settlor, 87. except by leave of court, 88. iisability of, to assent to breach of trust, 496. See Breach of Trust. female, might, prior to 1907, lose her rights under Married Women's Property Act if husband made settlement, even without her joinder or consent, 88. seciis since 1907.. .89. maintenance of, 333, 348 et seq. See Maintenance. if contingently entitled can only be maintained if the inter- mediate income follows the capital, 351 et seq. rules as to when it does so, 351. may be a trustee, 392. but cannot execute discretionary trust, ib. ratification of settlement by, 87. implied in the absence of repudiation, ib. sometimes impossible if infant has a foreign domicile, 88. repair of property belonging to, 255. whexe cestui que trust is an, the trustee maj^ pay his share into coui't, 443. where cestui que trust is an, the trustee should accumulate his income, 463. INFLUENCE, UNDUE. See Validity. trustees must not use, against the interest of a cestui que trust, 223 309 INFORMATION, expensive, truistees only bound to furnish^ on being indemnified against costs, 323, 326. trustees axe bound to afford, as to state of trust property, io their beneficiaries, 323, 325. evidence to prove the truth of the information given, 324. not bound to give, of incumbrances created by beneficiary himself, 325. nor to give to parties dealing with their beneficiaries, 323, 325. INJUNCTION to restrain breach of trust, 476 et seq. INQUIRIES to be made by trustee on accepting a trust, 211 et seq. trustees bound to answer by beneficiaries as to state and invest- ment of trust property, 323, 325. but not as to assignments and incumbrances created by bene- ficiaries, 323, 325. entitled to be first paid cost of answering where expense has to be incurred, 323, 326. not bound to answer, made by third parties dealing with beneficiaries, 323, 325. INSPECTION of trust documents, beneficiaries entitled to, 323, 325. INSTIGATOR OF BREACH OF TRUST, liability of, to indemnify trustees, 501, 506 et seq. no liability to make good the trustees' beneficial interest, 507. must have known that the act was a breach, 506. particularly in the case of a married woman, 507. where trustees have at such instigations parted with fund to trustees of a subsidiary settlement, no rig^ht to im- pound, 508. ( 44 ) Index. INSTIGATOR OF BREACH OF TRJJST-continued. must recoup loss to beneficiaries, 509 et seq. beneficiary, trust fund lent to, 510. forgery, 511. retainer of beneficial interest to make loss good, 513. applies to derivative as well as original shares, 514. solicitor knowingly assisting in getting fund in court paid 1x3 wrong person, 512. receiving and retaining trust money, ib. ,third pai-ty with notice, 510. See Third Party. trustees de son tort, 511. INSUFFICIENT SECURITY, effect of foreclosure of, by trustees, 219, 224, 231. how far it is the duty of trustees to call in, 261. rights in relation to, of tenant for life and remainderman respec- tively, 241 et seq. INSURANCE, assignable at law as well as in equity, 55. duty of trustee to give notice of assignment to himself to the insurance company, 263 n. (6). leasehold, trust to pay sinking fund premiums, not withm Thellusson Act, 66. life policy, settled, how premiums borne as between corpus and income, 250, 251. trustee can deduct premiums for fire, from income, 251. may, by way of salvage, exchange for fully paid up policy of less amount, 331. not bound to effect a fire, 251, 268. 'but may do so, except in case of simple trust, ih. applies to settled heirlooms, 268. INTENTION, ^ ^^ ^^ ^ insufiicient to create a voluntary trust, 38, 44 et seq. representation of, not sufficient unless it amounts to a contract based on value, 35. INTEREST, when a trustee is chargeable with, 460 et seq. „ , , , See Breach of Trust, sub-head " measure ot trustee s liability " ; and Tenant for Life and Remainderman. INTERMEDIATE INCOME -.,0^1 of contingent interests, when it follows the capital, 351. of wasting property pending realisation. See Wasting and Reversionary Property. INTERPRETATION of trusts, 119 et seq. See Executed Trusts and Executory Trusts. trustee liable for, unless he acts under the direction of the^^ourt, See Originating Summons. advice of counsel no safeguard, 288. TT^TFSTACY attempts 'to alter the devolution of property on, invalid, 67. INVALID SETTLEMENT. See Validity ; and Costs, sub-head " void settlement." INVENTORY, , , , 1 ^1 oas trustee of chattels should make and keep, -68. ( ^5 ) Index. investments, authorised by settlement expressly, 275. authorised by statute, 271 et seq. bonus shares allotted in respect of settled shares should be sold even where original shares may be retained, 276. mortgage on, 270, 281 et seq. See Investments Allowed to Trustees, infra. precautions to be observed by trustees in making, 270 et seq. See Investments Allowed to Trustees, infra. standard of prudence required by court in relation to, by trustees very high, 279 et seq. opinion of Lord Lindley, ib. trust fund, of, should be made as speedily as possible, 214, 268. six months the maximum limit, 268. trustees limited in their choice, 269 et seq. See Investments Allowed to Trustees, itifra. unauthorised, forming part of settled residue should be Con- verted, 228 et seq. court may sanction delay, 214, 219 et seq. income pending conversion, 233. See Wasting and Reversionary Property. unauthorised, made by trustees should be sold, but if all bene- ficiaries are S7ii juris, one must consent to sale, 473. entire income of land so purchased, pending sale, belongs to life tenant, 239. variation of, generally allowed, 280, 281. although settlement contains no express power, 273 n. (a;), but not where there is no legitimate reason for it, 281. although court very unwilling to interfere with dis- cretion of trustees, 273 n. (cc). INVESTMENTS ALLOWED TO TRUSTEES, bearer securities not allowed unless expressly authorised, 270. bonus shares should not be retained, 276. care required from trustee in the selection of investments from the class authorised by the settlement or statute, 270 et seq. degree of care required, 279 et seq. power to select from an indefinite class docs not necessarily authorise investment in any speculative security falling within the class, 280. but power to invest in specific stocks probably safe- guards trustee, however undesirable they may be, ib. change of investment from safe to less safe, when justifiable, 280, 281. Colonial stocks, 271. conversion of a settlor's business into a joint stock company, court has jurisdiction in a case of emergency to authorise trustees to accept price in shares and debentures, 218 et seq. corporation stocks, when allowed, 273. cottage property, mortgages of, 285 n. (a). court, investments authorised by the, 273 n. (m). debenture stock of railway company may be purchased under an express power to invest in mortgages or, bonds of such company, 274. debtor, direction to leave money in hands of, for debtor's con- venience may be safely obeyed, 278. express power construed strictly, 275, 278. " Colonial securities " does not include securities of a province, 277. conditions must be strictly observed, 278. ( 46 ) Index. INVESTMENTS ALLOWED TO T-RVSTEBS-continued. express power construed strictly—continued. direction to lend to a stated firm does not authorise loan after a change in the members of the firm, 276. extension of, in certain cases by Trustee Act, 189 3... 271 foreign government securities," 276. " invest at discretion," 275. personal security, meaning of, 277. power to invest on, for the purpose of convcniencing a specified person, 278. " place on security," 276. " place out at interest at their discretion," ib. " preference stock " does not include preference shares, 277. " public company or body corporate," what it includes, 277. " retain shares " in a particular company, direction to, docs not authorise acceptance of additional shares, 276. aliter where authorised to continue in present form of investment, ih. securities of a "public company," or a company incorporated by statute, meaning of, 277. company " created by statute," ih. general rule as to, 269; et seq. ground rents, power to invest in real security does not authorise purchase of, 272 n. (g). secus where power to invest on gi'ound rents, ib. impartial, trustee must be, in selection of investment and not favour tenant for life, 280, 281. imperative direction to invest on imprudent securities must be followed, 278. imjDerative direction to sell settled residuary estate and invest proceeds, does not necessitate sale of investments authorised by the settlement or by statute, 271. increase of income, safe security should not bo sold for purpose of investing in a less safe authorised security merely to procure, 280, 281. unless under very special circumstances, ib. Isle of Man stock, 274. local stock issued under Local Loans Act may be purchased under express power to invest in debentures of railway company, ib. mortgage of real estate, means a reasonable first legal mortgage, 270. accommodation of mortgagor, made for, is a breach of trust, 281, and see 278. but a mortgage may be accepted subject to prior improve- ment or drainage rent-charge, 275. contributory mortgage inadmissible, 282. cottage property, of, 285 n. (a). covenant to surrender copyholds, bj^ way of, inadmissible, 266 n. (s), 282. equita.ble mortgage inadmissible, 282. first legal mortgage, is confined to, 281 et seq. ground rents, includes, 272 n. (5). long leaseholds may be regarded as real estate in certain cases, 274, 282. provisions of mortgage deed, 286. trustee mortgagee need not negative sect. 18 of Con- veyancing Act, 1881... 286. nor insist on covenant to keep in repair, 287. proviso that trustees will not call in debt for a torm of years inadmissible, ib. ( ^7 ) Index. INVESTMENTS ALLOWED TO TRUSTEES— continued. mortgage of real estate — continued. real estate now includes certain long leaseholds, 282. Settled Land Act trustees investing on, by direction of life tenant, 275, 275 n. (c), 284 n. (z). direction by life tenant to invest in a particular mort- gage, 275 n. (c). speculative property, question considered whether surveyor's report safeguards trustee in lending on mortgage of, 285. brickfield, ib. china clay field, ib. manufactory, ib. possible distinction between speculative and wasting pro- perty, ib. sub-mortgage allowed, 282. substitut-ed for Government stock at same rate of interest, improper, 281. surveyor's report and advice, how far it safeguards trustee, 285. duty of, in making his report to trustees, 285, 286. where rej^ort relates to several properties, and a mortgage for a smaller is created on some only, report no safe- guard, 285. title, how far trustee responsible for defects in, of mort- gagor, 286, 298, 299. statutory provisions as to, 286. may accept a shorter title than 40 years, ib. all the above are equally applicable to transfers of existing securities as to new mortgages, ib. not obliged to investigate a lessor's title, ib. value of proposed mortgage security, how to be ascertained, 282—286. former law, 282. new law since 1888... 282— 286. precautions to be observed as to value codified, 283. statutory directions only relate to value and not to prudence of investing on a mortgage of specu- lative property, 285. but nevertheless some judges have held the ad- vice of the surveyor to be an absolute protection, ib. possible difference as to this between merely speculative and wasting jsroperty, ib. mortgages or bonds of railway companies, express power to in- vest in, authorises purchase of debenture stock, 274. mortgages or bonds of companies incorporated or acting under authority of Parliament, express power to invest in, authorises purchase of debentures issued under Mortgage Debenture Act, 1865, ib. personal security, generally improper, 277 et seq. caution as to, even when authorised, 277, 278. meaning of, 278. "real security" means mortgage, not purchase, 272 n. (q). but power to invest " on ground rents " means purchase of them, ib. includes long leaseholds, 282. redeemable stocks, where price exceeds redemption price, 273, 274. Settled Land Acts, investment of capital money arising under, 275, 284 n. (z). on specific mortgage by direction of life tenant, 275 n. (c). ( 48 ) Index. INVESTMENTS ALLOWED TO TRVSTEES-contimied. shares of trading companies inadmissible in absence of express power, 278. statutory trustee investments, 271 cf seq. stocks above par, investing in, 280. purchased " cum div," 224. trade speculations, trustees must not invest in, unless settlement explicitly authorises them, 278. not even in ordinary, stock of the best railway companies, ib. trustee investments authorised by statute, 271 et seq. list of, ih. not applicable to trust funds of Building Society, 275 n. («). but applicable to charitable trusts, ib. where contrary intention expressed, 271. what constitutes contrary intention, 271 n. (/7). even as to these, trustees must not accept certificates to bearer, 270. nor invest in such of them as settlement expressly forbids, 271. mortgages or bonds of company includes debenture stock, 274. price above redemption value, 273. including dividend, 224. railway debenture, guaranteed, or preference stocks, 272, 273 n. (m). real securities includes certain long leaseholds, 274, 282. also charges under Improvement of Land Act, ih. retention of statutory securities bought above par, 274. selection of, trustee bound to exercise care, 279 et seq. distinction between power to select from a class which includes good and bad stocks and power to invest in a named stock however second rate, 280. statute retrospective, 274. trustee must exercise a reasonable discretion even with regard to statutory investments, 279 et seq. variation of, from time to time allowable, 273, 273 a. (x). but only for good cause, 281. question whether onus lies on trustee of justifying variation, ib. but court very loath to interfere, 273 n. (a;), water companies' or Water Board's stocks, 273. ISSUE, meaning of, in marriage articles, 122 et seq. woman sometimes presumed to be incapable of having, 360. JOINT AND SEVERAL LIABILITY of trustees for breach of trust, 468. but all are necessary parties to an action for breach of trust, ib. JOINT NATURE OF TRUSTEES' DUTIES, 305 ef seq. " acting trustee " not recognised by our courts, 306. all must act unanimously in general, ib. aliter where court or settlement directs to the contrary, ib. as to enfranchisement by trustees of a manor, 306 n. (&). as to receipt of income, 307. in case of charitable trusts, 306 n. (b). where a trustee may lawfully delegate. See Dele- gation. { 49 ) PP Index. JOINT NATURE OF TRUSTEES' BVTIES-continued. bank, money must be paid into, to their joint account, 307. cheques, all should sign, 308. conformity', joining in receipt for, ib. custody of trust securities, 309. income, generally permissible to allow one only, to receive, 306, 307. but not to retain, 308. investments must be made in joint names, 307. majority of trustees cannot bind minority, 306. aliter in case of charitable trusts, 306 n. (6). or trustees of a manor in relation to enfrancliisements, 306 n. (&). money must not be left in the sole control of one trustee, 307, 308 et seq. mortgagees, all must be, where trust money advanced, 309. one cannot, therefore, be mortgagor, ib. or mortgagee, 320. effect on mortgagor's covenants, 309. probably incapacity extends to one who is trustee of another settlement, 309. powers (whether passive or active) can only be exercised unani- mously, 306. exception in case of trustees of a manor in regard to enfran- chisement, 306 n. (&). receipts, all must join in, 308. effect of joining in receipt for sake of conformity, ib. JOINT SALE by trustees and others, 263, 264, 304, 341 et seq. apportionment of purchase money prior to, 304. JOINT TENANTS, are constructive trustees for one another, 177. permanent improvements effected by one of several, 182. trustees are, 365 et seq. JUDGl^IENT, trustee not liable for mere error of, 266. but must (however ignorant or stupid) act up to the ordi- nary standard of intelligence, 298. JUDICIAL DIRECTION, right of trustee, or beneficiary, to, on originating summons, 447 et seq. JUDICIAL TRUSTEE, 407 et seq. accounts of, to be audited every year, 408. appointment of, by court, 407, 409. at whose request, 407. discretionary, is, 409. inquiry may be ordered as to conduct of, 408. officer of the court is, ib. remuneration of, 407. rules of court, in relation to, 409. who appointed, 407. JUS TERTII, trustees must not set up, 309. may appeal to court to relieve them from trust, 310, 311 opinion of Lord Justice Knight-Bruce, 310. must not aid third parties who claim the estate, ib. ( 50 ) Index. L. LACHES. And see Acquiescence ; and Limitations, Statute of. cestui que trust, of, when a bar to relief, 495. great laches will bar cestui que trust eveji in an express trust, ih. does not apply where the circumstances afford no ground for implication of acquiescence, notwithstanding long lapse of time, ib. nor where beneficiary ignorant of his rights, 498. or under disability, 496. the doctrine proceeds on implied intention, 495. immaterial in the case of a settlement void under 13 Eliz. c. 5.... 105. long dormant grievance will not be entertained if it would cause general inconvenience, 495, 496. e.g., a purchase by a trustee after many years, 495. or an account after a long period, ib., 496. LANGUAGE FOR CEEATING A TEUST, 15 et seq. agreement to create a trust, creates one if based on value, and capable of specific performance, 16. condition, words of, may create a trust, 31 et seq. but more usually only create a charge, ib. covenant to create a trust, 16, 34, 38, 46. See Covenant. distinguishable from trust of a covenant, 46 et seq. direct and unambiguous expressions, 15 et seq. " direct him to apply," 17. " direct that my real estate be sold," ib. evincing an intention to create a trust, 15 et seq. insufiicient to raise an express trust may yet be sufficient to show that donee was not intended to take beneficially, and so raise a resulting trust, 149, 153. power of selection without any gift over in default of exercise of power, may create a trust in favour of the objects of the power, 16, 21, 22. aliter, where mere power to appoint as distinguished from power to select, 22. precatory words sometimes create trusts, if on true construc- tion of the instrument they were meant to be imperative, 16, 24 et seq. See Precatory Trusts. older cases show tendency to construe precatory words as imperative, 24. strong modern disinclination against construing precatory words as imperative, 16, 22 et seq. uncertainty as to subject or object fatal to trust depending on precatory words, 29. sometimes illusory. See Illusory Trusts. trustee, non-appointment or failure of, immaterial if language shows intention to create a trust, 17. uncertainty of, renders trust void, 15, 18 et seq. See Uncertainty. LEASE, renewal of, trustee cannot obtain, for his own benefit, 175, 316. even where landlord has refused to renew to the trust, 175. fines payable on, how raised, 256. one of several beneficiaries may obtain for his own benefit, 177 n. (I). tenant for life cannot obtain for his own benefit, 176. trustee may be ordered to obtain, 477. trustee may grant a reasonable, 331 et seq. not grant a, to himself, 320. ( 61 ) pp2 Index. LEASEHOLDS, when duty of trustee to realise. See Wasting akd Eeversionary Property. income pending realisation. See Tenant for Life and Eemainderman. sale of, in lots, can be carried out by way of under-lease, 342, 345. security of, mortgage of, when allowable to trustees, 274, 281, 282. LEGACY, agreement to share an expected, 56. appropriation of securities to answer contingent, not allowed, 228. may be assigned on trust by legatee, 41 et seq. even without valuable consideration, ib. LEGAL ESTATE. See Estate of Trustee. definition of, 5. estate of trustee not necessarily, 6. importance of, 6, 518, 519, 526. negligence of trustee, may deprive beneficiaries of protection of, 526. of beneficiary under settlement, cannot be impounded or charged to make good breach of trust, 510. sometimes implied, 194 n. (/). trustee cannot interfere with, of remainderman, 334. trustee, of, does not pass to sole beneficiary under Statutes of Limitation, 202 et seq. except in case of constructive trusts, ib. when and to what extent vested in trustee, 193 — 202. LEGALITY, of object of the trust, 60 et seq. And see Perpetuities ; Thellusson x\ct ; Bankruptcy ; Illegitimate Children. of subject-matter of the trust. See Property. LIABILITY FOR BEEACH OF TEUST, measure of trustee's. See Breach of Trust. of third parties and beneficiaries. See Third Parties ; and Impounding Interests of Beneficiaries. LIEN, banker, of, when he has no notice of trust, 475, 521. when he has notice, 511. cestui que trust entitled to a, on the share of a co-cestui que trust guilty of connivance in a breach of trust, 509 et seq. in case of fraud, 185. partnerships, 184. raises a constructive trust, 180, 184. trustee entitled to, on corpus and income for costs, 429, 435. See Eeimbursement. vendor's, 180. LIFE TENANT. See Tenant for Life and Eemainderman. equitable, how far entitled to possession of settled land, 361 et seq. when entitled to custody of deeds, 364 n. (r). LIAHTATIONS, STATUTE OF, in favour of trustee, 484 et seq. See Breach of Trust, sub-head " Protection," etc. of third parties who have been in long possession of trust property, 202 et seq. See Estate of Trustee (5). ( 52 ) Index. LIS PENDENS, for general administration, suspends trustee's powers, 353 et seq. but not until judgmcint given or receiver appointed ur injunction granted, ib. LITIGATION, how far trustee bound to commence or defend, 259, 310. trustee should enforce forfeiture clause against beneficiary who commences, 263 n. (a). LOAN, where settlement authorises, to a firm, power lapses on change of partner, 276. LOCO PARENTIS, persons in. See Resulting Trust (3). LOSS OF TRUST PROPERTY, trustee not liable for, by theft, unless negligent, 267. aliter in case of forgery or fraud, 267. LUNATIC SETTLOR, how far bound by settlement, 90 et seq. LUNATIC TRUSTEE, appointment of new trustee in his place, 376, 377, 386, 388. may be done by co-trustees or donee of power under sect. 10 of Trustee Act, or exjaress power to appoint a new trustee in place of one unfit, 379, 380, 384. simple procedure in lunacy where lunatic is lawfully de- tained (whether so found or not), and is donee of the power of aj^pointing new trustees, and vesting order is required, 386. in such cases unwise to appoint under sect. 10 of Trustee Act, 386 n. («). Lunacy Court has jurisdiction to appoint and make vesting orders where simple procedure inapplicable, 387, 388. but unless lunatic so found there may be difficulties, 380. vesting trust property in new trustee appointed in jjlace of, 397, 403 ct seq. See Vesting Order. M. MAINTENANCE, of infants, 333, 348 et seq. allowed even where father is a wealthj^ man, 333 n. (i). portions in the case of contingent, 352. present statutory power enables allowance not only for maintenance and education, but also for benefit of infant, 348. contrary intention, direction to accumulat.(' during in- fancy is not, 351. payable to guardian, 348. power only applicable in cases where infant would, on attaining twentj^-one, be entitled to intermediate income, 351 et seq. rules as to, when income follows corpus, ib. residue, gift of, to infant renders executor a trust-ee who may exercise statutorj' power, 352. sometimes allowed out of capital, 333. surplus, statutory trusts of, 350. trustee may generally grant, 333. (53) Index. MAINTENANCE— co?4^m? Delegation ; Breach of Trust. advisers of trustee, by, how far trustee liable tor, Zoti, ^y/,-yy. And see Delegation. ao-ents of trustee, by, how far trustee liable for, 297 et seq. care, amount of, required from a trustee, 258 et seq. covenant by settlor, omission to enforce, 263. custody of trust documents, in, 267, 268. debts, in realisation of, 259. . „„^ / n allowing mortgage debt to remain, 207 n. {^ij). compounding, 261. r,^-, m proving in debtor's bankruptcy, 261 et seq. ^ deo-ree of, which will render a trustee liable, 258. ( 5T ) Index. NEGLIGENCE— cowimwedZ. error of judgment, not necessarily, 266. illiterate trustee, by, judged on same basis as if he were possessed of average intelligence, 298. insufficient security, which was sufficient at date of investment, 261. insurance against fire, not effecting, is not a breach of trust, 268. interest, liable to pay, if none earned by reason of negligence in postponing investment, 463. even compound, if accumulation directed, ib. inventory of trust chattels, omission to make, 268. investments, in making, 269 et seq. See Investment of Trust Funds. in not making, 268, 463. And see Breach of Trust. joining in sale of other property, 263. judgment, error of, 266. measure of trustee's responsibility for. See Breach OF Trust, sub-head " Measure," etc. purchase, making an improvident, 266. registering deeds, as to, where registration necessary, 263. rents, allowing to fall into arrear, 262. repairs of trust property, how far bound to see to, 252, 269 et seq. And see Repairs. sale, improvident, 265. using depreciatory conditions, 264. securities lost through, 267, 304. solicitor of trustee, by, how far trustee liable, 298. theft of trust property caused by trustees', 267. NEW TRUSTEE, abroad, in place of a trustee who has been absent for twelve continuous months, 376, 378, 378 n. (c), 380, 381, 382. person residing, ought not to be appointed, except under special circumstances, 394. where donee of power is, 390. appointed, how, 376 et seq. (1) court, by the, 376, 387 et seq. cases in which it is proper to apply to court, 388 — 391. where difficult, inexpedient, or impracticable to appoint otherwise, 388. cannot be done where donee of power statu- tory or express is willing to appoint, ib. sole trustee dying intestate and without estate, 388, 389. no original trustees, |or; where all disclaim, 389. infant trustee, ib. cases of doubt as to application of statutory power, ib. where desirable to increase number without waiting for a vacancy, ib. where donees of power cannot agree, ib. where trustee felon or bankrupt, ib. where trustee charged with breach of trust, 390. where trustee removed by the court, ib. High Court or Lunacy Court, 376, 387, 388. where vesting order required the Lunacy Court must be resorted to unless trustee is abroad, or an infant, 387. sometimes application must be made to Lords Justices both in Chancery and Lunacy, 402 n. (0- ( 58 ) Index. NEW TRJJSTEI^— continued. appointed, how—continued. (1) court, by the— continued. no jurisdiction to re-appoint existing trustees, 391, 402 nor to appoint person to perform office of executor, 391. summary procedure, 390, 391. not applicable where trust not expressed on the face of the documents, 391. in lunacy, 388. See Lunatic Trustee. (2) express power, undei', 376, 377. construction of, 378. court cannot appoint where donee willing to exercise, 377. aliter where judicial trustee desirable, 377 n. (g). but court will supervise the appointment after an order for general administration, 379. donee of power ought not to appoint himself, 392. vested in tenant for life, may be exercised after aliena- tion of his life estate, 379. in lunatic " lawfully detained " jnay be exercised by person appointed by Lunacy Masters ad hoc, and Masters can make a vesting order, 386. advantage of this where lunatic is " not so found," ib. (3) statutory power, under, 376, 379 et seq. actual words of, 380, 381. applicable to executor who has assented to a trust legacy where no trustee expressly appointed, 383. query, whether applicable to executor who has assented to legacy to an infant, ib. or to administrator who holds a share of personal estate for infant next of kin, ib. cases in which it arises, 380 et seq. death of a trustee, 380. trustee abroad for twelve consecutive months, 380, 382. query whether he can himself join in appoint- ment, 382. trustee desiring to be discharged, 380, 383. query, whether applicable to fill up place of a trustee who has retired previously under sect. 11 of the Act, 383. trustee incapable of acting, 378, 380. trustee refusing to act, 380, 384. trustee unfit to act, ib. construction of, 381 et s.eq. donee of, is not the same person as donee of express power, 380 and 380 n. (p). cannot properly appoint himself, 393. where nominated by settlement, 380 n. (p). exercisable where donees of express power cannot agree, 385. lunatic who is donee of the statutory power, 386. no person nominated to exercise it, 380. executor of a sole trustee may do so, 380 n. (2). not imperative, 386. (59) Index. NEW TRUSTEE— continued. appointed, how — continued. (3) statutory power, under — continued. persons nominated to exercise it, 380 n. (p). not necessarily the persons nominated to exercise the express power, 380. severance of trusts on exercise of the power, 384. See Severance. only possible where a vacancy in trusteesliip is being filled up, 385. bankrupt, in place of, 389. costs of ajjpointment of, 376 n. (o), 433. dispute between donees of power of appointing, court will appoint, 389. donee of power of appointing, ought not to appoint himself, 392. doubt, court can appoint in cases of, 389. duties of, on acceptance of the office, 211 et secj. See Acceptance of a Trust. felon, in place of, 389. infant trustee, in place of, ib. invalid appointment, effect of, on old trustees and person invalidly appointed, 377, 396. judicial trustee, when appointed, 407 — 409. lunatic, where power of appointing vested in, 386. no original trustees appointed, 389. number of, when statutory power is used, mav be more or less than original number, 380, 384, 385. but there must be two at least, 380, 385. cannot be increased (except by court), unless there is a vacancy, ib. questionable practice to obviate this. 385. court rarely reduces number unless administration action pending or fund is about to bo paid into court or dis- tributed, 384. under express power, depends on the language of the power, 284 persons to be appointed, principles as to choice of, 377, 392 et seq. attention paid to wishes of settlor, 392, independent of life tenant and remaindermen, ib. person persona grata to other trustees, ib. trust company can now be appointed, 395. who ought not to be appointed, 377, 392 et seq. alien, 394. beneficiary, 393, 394. donee of the power, 392. husband of beneficiary, 394. infant. 392. jurisdiction, person out of the, 394. life tenant. 393. maiden lady, 395. married woman, 394. relations, ib. remainderman, 393. resident abroad, 394. solicitor to the trust, 393. powers of, same as those of original trustees, as such, 377, 391 et seq. distinction between powers confided to the trustees virtute officii and to original trustees as individuals, 391. procedure, on appointment by court, 390, 391. applications in lunacy, 386, 388. vesting of property in, 396 et seq. See Vesting of Trust Property in New Trustees. ( 60) Index. next of kin, not constructive trustees for each other, 177. when, volunteers under a marriage settlement, 53, 54. NO TRUSTEE APPOINTED, 17. NOTICE, duty of trustees of chose in action to give requisite, 263 n. (6). purchaser with, of trust, bound by it, 518 ei seq. See Third Parties. trustees without, of the true representatives of deceased cestui que trust, not liable for paying to wrong ones, 287, 289. what constitutes, 521 et seq. without, of in(!unibrances or assigunionts of beneficial interests, not liable if they jiay to original beneficiaries, 290. aliter, if they refrain from examining truat documents which contain notices, 166, 213, 289 et seq. 0. OBEDIENCE to directions of the trust, duty of trustee to observe, 214 et seq. See Directions of Trust Instrument. OFFICE, trusts to evade serving a public, 158. OFFICE OF TRUSTEE. See Death of Trustee. 0]\nSSION OF DECLARED TRUST. See Resulting Trust. ONUS OF PROOF. See Voluntary Trust. OPTION of purcliaso, trustees with power to lease or sell must not give, 265. ORIGINATING SUMMONS, for general administration of the trust, 455. for the judicial determination (without general administration) of most questions arising in the construction or adminis- tration of a trust, 447, 449. approval of sales, compromises, and other transactions limiied to such as ax'e within the trustee's powers, 451. contingent questions, not generally decided on, 447, 452. exceptions, ib. costs of, generally payable out of the estate, 448, 453. but in exceptional cases may be ordered to be paid by unsuccessful party, 453 et seq. inapplicable where sought to make trustees responsible for breach of trust, or where cancellation of trust, or relief against third parties is sought, 447, 450. or formerly where the question affected beneficial legal, as distinguishable from equitable, interests, 449. most of these can now be determined under Order 54a, ib. order may, in some cases, be made on trustee to pay money found due, 450, 451. no longer necessary to serve all parties interested, 448, 453. orders to do or abstain from doing some act, only made where act is within the powers of the trustees, 451. words of Order 55, r. 3, and Order 54a, 448 et seq. OUTGOINGS, 246 et seq. See Tenant for Life and Remainderman. ( 61 ) Index. OUT-OF-POCKET EXPENSES. See Reimbursement of Trustees. OVERPAYMENT, beneficiary, of, 516 et seq. other beneficiaries may compel him to refund, 516. not if the overpayment was caused by depreciation of residue after the payment was made, unless the pay- ment was premature, ib. trustee can recoup himself out of any other interest of same beneficiaiy under the settlement, ib. trustee cannot generally make overpaid beneficiary refund per- sonally, ib. PARENT, voluntary trust in favour of, prima facie voidable, 98 et seq. may be a constructive trustee if he purchases infant's pro- perty from mortgagee, 316. PAROL EVIDENCE. See Evidence. PARTITION, trustees cannot as a rule, 335. implied powers to, 337. powers of court and Board of Agriculture and Fisheries, as to, 337 n. (i). PARTNERS, how far constructive trustees, 177 and 177 n. (w). but not precluded from purchasing deceased partner's share, 323. mutual liens of, 184. ' PAY for public services, when alienable, 57 et seq. PAYMENT, into coui't, 442 et seq. by majority of trustees, 442 and 442 n. (I). cases in which it is allowable, 442, 443, 444. beneficiaries under disability, 443. beneficiary claiming in default of appointment, ib. dispute between beneficiaries, ib. general warning as to, 444. money claimed by representative of beneficiary, 443. reasonable doubt or claim, 444. to enable married woman to assert equity to a settle- ment, 444. undue caution, ib. constructive trustees, by, 443 n. (m). effect of, on trustees' powers, 354. improper where question can be determined by originating summons, 443, 444. of share of trust estate to one beneficiary before a general distribution, when allowable, 226. And see Appropriation. to wrong person, 287 et seq. See Mistake. PENSIONS, when alienable, 57 et seq. (62) Index. PERISHABLE PROPERTY, income of, pending conversion, 233 et seq. See Tenant for Life and Remainderman. when trustees should convert, 228 ep seq. See Wasting Property. PERPETUITIES, 61 et seq. See Accumulations. alternative gifts, one of which is void under rule against, 74. application of rule where no successive interests, 64. directions to keep tomb i n repair, ib. directions not to sell until a stated time, ib. appointment under powers, application of rule to, 63. attempt to create, by executory trust, how construed, 12L class, gift to which may infringe rule as to some members of class, 74. double possibilities, rule against, not applicable to special trusts, 65. applicable to equitable remainders, ib. illegal, 60, 61. income, indefinite trusts of, 63. lives in being, to satisfy the rule against, must be lives of ascertainable persons, 19, 64. marriage settlement, trusts in, for cliildren to vest at any age exceeding 21 void, 62. perpetual indemnities, 65. power of sale may be void, under rule as to, 358 0t seq. remainders after a trust void under rule as to, are themselves void, 73. secus, if they are alternative trusts, 74. rent-charges, powers of entry, etc., for securing, 77. creation of, for indemnifying owner of land against another one, 65. resulting trust to settlor, 158. rule against stated, 61. does not apply to estates tail, 62. nor to charitable gifts, ib. nor to parliamentary grants, ib. nor to trusts for accumulation of income to pay debts, ib. rule against, invalidates gifts to a class where sotne of the class may possibly not take vested interests within the prescribed period, 62, 74. test whether trust is void, 62. vesting in possession not necessary, vesting in interest suffices, 62. trust to apply income for a period beyond the rule may be good, so long as the corpus vests within the period, 62 et seq. trust to keep in repair tombs or monuments void as creating, unless limited in point of time, 64, 76 et seq. trust to sell at a period beyond the rule may not destroy the interests of the beneficiaries, 74, 359. whether a trust is void under the rule against, depends on the possible effect of the trust, and not upon its actual effect, 62. PERSONAL NATURE OF TRUSTEES' DUTIES. See Delegation. PERSONAL SECURITY, meaning of, 278. POLICY OF INSURANCE. See Insurance. PORTIONS may be raised successively if estate clearly sufficient to provide the whole, 226. ( 63 ) Index. POSSESSION, how far equitable tenant for life entitled to, 361, 363 et seq. POSSIBILITY, a, is capable of being settled, 56, 101 n. (Z), 103. POSTPONEMENT of enjoyment until a given age, in general nugatory, 356. POWER OF APPOINTMENT, in settlement, whether donee of, can appoint to separate trus- tees, so as to deprive original trustees of the right to administer the fund, 425 et seq. fraud on, how far trustee responsible if he suspects, 291, 292. general powei- exercised by deed, 425, 426. exercised by will, ib. may imply a trust for objects in default of exercise, 16, 21, 22. special power, 425, 426 et seq. appointment to trustees in trust for sale, 427. mere power of selection, 427. 2)owcr to appoint proceeds of sale and appointment of the property specifically, 427 n. (k). rule against perpetuities, how applied to, 63. POWER OF ATTORNEY, payment under, by trustees without notice of revocation, valid, 352 POWER OF SALE, cannot be accelerated, 216 et seq. cesser of, 358. does not convert property until exercised, 174. may sometimes subsist after the property has vested absolutely in a class of beneficiaries, 358 et seq. POWERS OF BENEFICIARIES, 355-364. See Beneficiary. POWERS OF TRUSTEES, can only be exercised (whether active or pa.ssive) by all the trustees unanimously, 306. cesser of, when all beneficiaries are sui juris, and absolutely entitled, 358. cannot be exercised after payment into court, 329 n. (t), 354. compromise, to, 346. onus of proof as to the propriety of, 347. possibly the question of propriety is immaterial where trus- tees act in good faith, 347. destruction of, by payment of trust fund into court, 354. devolution of, on death of a trustee, 364. or death of last surviving trustee, 367, 368. exercise of, discretionary, not controlled by court when exercised bond fide, 327, 328. nor is trustee liable for error of judgment, 329. but discretion may be limited to time and mode, 329. or may be illusory, ib. express, 327 et seq. exercise of, not controlled by court where exercised bond fide, even though court may disapprove, 327, 328 et seq., 353. aliter whore the exercise of the power is a duty cast on the trustees, 330 extinguishment of, when all interests have become absolute, 358 general, 327 et seq. et seq. ( fi4 ) Index. POWERS OF TRVSTE'ES— continued. implied, 327, 330 et seq. to abstain from enforcing debts or obligations, 330. ' advance infants' shares, 333. where beneficial to their beneficiaries, 327, 330 et seq. none where infant only contingently entitled, 334. do all such reasonable and proper acts as the court would authorise if applied to, 327. improve trust property, only in exceptional cases, 332. lease for short terms, 331. maintain infants, 333. mortgage trust property, only in exceptional cases, 335, See Mortgage. 337 et seq. protect trust property from direct or indirect injury, 331. retain income for repairs where it is their duty to repair, ib. retain shares of married woman in order to enable them to assert equity to a settlement, 332. surrender or exchange trust policy where desirable, 331. thin timber, ib. incident to proper administration of the trust, exercise of, com- pellable, 330. legal remainders, powers must be exercised so as not to affect, 327, 334. management, in relation to, 330, 332. court can compel exercise of, 330. " generally to superintend the management," gives almost unlimited power, 332. mortgage to, cannot be implied, 335, 337 et seq. See Mortgage. exceptions, 337 et seq. must 'be exercised fairly so as not to favour one beneficiary. 327, 334. payment into court, cannot be exercised after, 329 n. (i). receipts, to give, 346. release debts and claims, to, ib. whether trustee is safe in doing so, 347. sales, as to conduct of, 341 et seq. select, to, among a class, may imply a trust in favour of the class if no gift over, 15 et seq.,^ 21, 22. sell to, to a named person at a price to be fixed by trustees, 329. See Sale. none to sell trust property in general, 335 et seq. exceptions, ib. survivor, death of, powers now exercisable by his personal repre- sentatives, 367, 368. survivorship of, 364 et seq. suspension of, by administration decree, 353 et seq. discretionary powers, will not be controlled apart from mala fides, ib. issue of writ not sufficient, 353 n. (>•)• payment of trust fund into court, effect of, 354. purchaser for value without notice not affected, ib. unless property is land, and the action is registered as a lis pendens, ib. POWER RAISING AN IMPLIED TRUST, 16, 21 et seq. elements of, 16 21. essential that it should be a power to select from, and not merely a power to give to a class, 21. gift over, in default of exercise of the power, fatal to claim of class of appointees, ib. a residuary gift, not a " gift over " for this purpose, 22. ( 65) Q Q Index. precatory trusts, ig, 22—33. absolute gift by will and precatory expressions in codicil, 30. depend wholly on interpretation of instrument, 22. essentially express trusts, 9. expectation, words of, do not create, 33. gifts over in default of compliance with precatory expressions, 30. history of, 22 et seq. modern tendencj^ against, 22 — 31. cases illustrative of, 25, 26. old rule and modern rule contrasted, 24. motive, words explanatory of donor's, do not create, 33. PREDECESSORS, how far trustee liable for acts or defaults of, 212 et seq. PRESUMPTIONS. See Resulting Trust. PRIEST, undue influence of, 97. PRIORITIES between several innocent claimants. See FOLLOWING TRUST Property. PRIORITY, trustees must give all notices necessary for safeguarding, 263 n. (b). PRIVITY. See Illusory Trust. PRIZE MONEY, Secretary of State, not a trustee of, 37. PROBATE, acceptance of, generally tantamount to acceptance of trust, 190. refusal of, when tantamount to disclaimer of trust, 188. PRODIGAL, protected life estate in favour of, 68, 362 PRODUCTION of trust documents, beneficiaries entitled to demand, 325. but where it involves expense he must pay the cost, 326. PROFITS MADE BY TRUSTEES, 174. See Constructive Trusts ; Remuneration. agents, made by. /See Agent. duty of trustee not to make, by reason of his position, 175, 315 et seq. accretion to trustee's estate, belongs to the trust, 317. beneficiary, where trustee is also, subject to specific charge in another's favour, the rule does not apply, 318. jDurchase or lease from, by trustee valid if fair, but onus on trustee of supporting it, 315, 322 — 323. bequest to trustee in consequence of his position as such, belongs to trust estate, 317. commission paid to, belongs to beneficiaries, 178, 316. company of wliich trustee is a shareholder, rule prima facie inapplicable to, 317, 318. constructive trustee of profits, all persons in fiduciary positions are, as a rule, 175. exceptions, 177 et seq. father of infant remainderman purchasing from mort- gagee, 316. ( f'H ) Index. PROFITS MADE BY TnVSTEES-continued. duty of trustee not to make, by reason of his position — continued. disability of trustees equally applies to his wife and child, 98, 176. indirect gains, query whether prohibited, 313, 317. directorship of company by virtue of shares held as trus- tee, 317. solicitor trustee acting for one who borrows from the trustees on mortgage, 317. interest, cannot charge, on out of pocket expenses, 435. lease, cannot to himself, 320. cannot get renewed in his own favour, 175 et seq., 316. even where lessor refuses to renew to him as trustee, 316. legacy to trustee attributable to his position belongs to trust, 317. mortgage, cannot accept of trust property, 320. but may accept a fair mortgage from a beneficiary, 322. mortgagor, cannot be of trust money, 309. additional difficulty as to mortgagor's covenants in such a case, ib. payment of debt due to trustee from beneficiary, out of money advanced by him under power of advancement, 317. purchase trust property, trustee cannot from self or co- trustees. See Sale, Trustees for. remuneration, not generally allowed, 305 et seq. See Remuneration of Trustee. aliter in case of judicial trustee, 407. retirement from office, in order to make profit out of trust, not allowed, 316. salary not generally allowed, 305 et seq. See Remuneration of Trustee. aliter in case of judicial trustee, 407. solicitor's costs against the estate, must not accept com- mission on, 178. speculate, trustee must not with trust fund, 316. if he does, the resulting profits (if any) belong to bene- ficiaries, 316, 460, 464 et seq. sporting over trust estate not allowed, 317. subsidiary settlement, purchase by trustee of, from trustees of principal settlement, 321. trade, cannot with trust fund, 316. trustee of trustee's marriage settlement may purchase from trustee, 322. fiduciary persons, made by, 175 — 179. See Agent ; Directors ; Fiduciary Persons ; and Tenant FOR Life and Remainderman. realisation of investment on, belongs to capital and not to in- come, 224. reconstruction of companj^ in whose shares trust funds invested, on, 225. solicitor, by, made at expense of client, ?06, 317. See Solicitor Trustee. PROMOTERS OF COMPANIES are constructive trustees, 178. PROPERTY, assignment of future acquired, 56, 101 n. (Z), 103. effect of bankruptcy of assignor upon, 103. bankruptcy of trustee, on, still remains vested in him, 205. vesting of, in new trustees. See New Trustee. what may be made the subject of a trust, 54 — 59. choses in action, 55. equitable interests, ib. ( 07 ) Q Q 2 Index. 'PRO'PEB.TY—cojitinued. what may be made the subject of a trust — continued. expectancies, 56. effect of bankruptcy upon, 57. policies of insurance, 55. reversionary interests, 56. what may not be made the subject of a trust, 55, 57. foreign land where lex loci forbids trusts, 59. where tenure forbids trust, 59. where statute or public policy forbids alienation, 58. pension for public service, 58. wrongfully purchased with trust fund becomes trust property, 411 et seq. See Following Trust Property. PEOTECTED LIFE INTEREST, 68, 290 n. (s), 362. PROTECTION of trust property, duty of trustees as to, 327 et seq. of trustees, 481—508. acting reasonably and honestly, 481. onus of proof on trustees, ib. reasonableness required as well as honesty, ib. examples of reasonable conduct, 483. of unreasonable conduct, 482. not necessarily excused even then, unless on all the facts court considers they ought to be, 482, 484. acts of co-trustees, against, 498 et seq. cases in which trustee liable, ib. liability may be negatived by express declaration, 499. concurrence of beneficiaries, 492 et seq. assent or release only available if beneficiary sui juris, 492, 495 even then he must have had full knowledge or must have retained the benefit of the breach, 492, 493 distinction between and right to indemnity, 493 et seq. laches, 495. release, 494. contribution between trustees, 500 et seq. generally entitled to, although some are more blame- able than others, 500. if one guilty of fraud he may have to bear whole loss, 501, 504 et seq. if one is sJso a beneficiary his share may have to bear the whole loss, 500, 501. lien for, on costs awarded to one trustee, 502. indemnity by co-trustee or beneficiary who instigated breach, 501, 505 et seq. or benefited by it, 505. married woman only within rule if guilty knowledge conclusively proved, 507. especially if restrained from anticipation, 508. right to indemnify does not extend to indemnify trus- tee beneficially, but only against claims of others, 507. solicitor trustee who advised breach, 505. subsidiary settlement, interest of beneficiary under cannot be impounded by trustees of the original settlement, 508. to be liable to indemnify, beneficiary must have known that the breach was a breach, 506 et seq. ( 68 ) Index. FIiOTEGT101 be purchased for the trust, 436. new trustees, costs of investigating trust accounts, etc., on appointment, 433. costs paid by, of donee of power of appointing new trustees, ih. out of pocket expenses, 429 et seq. but without interest except where he has paid an interest bearing debt, 435. persona] indemnity by beneficiaries, 437. as between partners, 438. does not apply to special but only to simple trusts, ih. trustees of clubs have no right to, 438. premature sale, costs of, 434. solicit/or's .charges, incurred by trustees, 431 et seq. but beneficiaries may tax the bill, 431. unnecessary, not allowed, 434. time at which right arises, 430. not q^da timet, ih. trust business, liabilities incurred by trustee in carrying on, 431. creditors of, cannot claim directly against the trust pro- perty but only against trustee personally, 429, 439 et seq. but if "trustee has claim to be reimbursed, the creditors ntdsy claim to be placed in his shoes by subroga- tion, 429, 439, 440. aliter where trustee has committed breach of trust, 439, 440. (78) Index. EEIAIBUESEMENT OF TRVSTEES—continued. trust business, liabilities incurred by trustee in carrying on— continued. creditors of, cannot claim directly against the trust property but only against trustee personally — continued. but if trustee has claim to be reimbursed, etc. — continued, aliter where trustee has committed breach of trust — continued. or is indebted to the estate, 438, 439. but this does not apply where one only of several trustees is so indebted, 440. no application to expenses incurred by trustee by way of salvage and not authorised by the settlement, 440. trustee entitled to reimbursement if the business waa rightly carried on, 431. but where the settlement expressly appropriates a fund for carrjing on the business, the trustee's reimburse- ment, and creditors' claims (by subrogation) are re- stricted to that fund, ih. void settlement, under, 436. Bankruptcy Act, under, 435. statute 13 Eliz. c. 5, under, 436. void will, 436. voluntary subscriptions to charities, 434. where trustee has mixed trust fund with his own money, 436. RELEASE, beneficiary, by, bars claim, unless imj^rojiei'ly obtained, 492 et seq. aliter if beneficiary not sui juris, or if ignorant of effect, 496, 497 et seq. court, by, from the office of trustee, only obtainable by action, 375, 455 et seq. when trustee entitled to applj' to court for a, 375, 458. trustee, may, debtors in proper case, 261, 262, 346. part of mortgaged proi^erty, when, 332. what amounts to a, to the trustee, 494. not necessary to be under seal, ib. trustee not generally entitled to a, under seal, 440, 441. but may be under exceptional circumstances, 441. nevertheless entitled to settlement of his accounts, ib. but where same person is trustee of two trusts for same beneficiaries, he cannot refuse to hand over one trust fund until the accounts of the other are examined, ib. RELTGTOUS INFLUENCE, effect of, on validity of a settlement, 97. REMAINDERMAN, is not proper person to be appointed a new trustee, 393. REMAINDERS expectant on trusts, based on value, when considered voluntary, 52 et seq. REMOTENESS, 61 et seq. See Perpetuities. REMOVAL OF TRUSTEE, 373 et seq. how effected, ib. court, by the, 373, 389, 390. express power, under, 373, 375. statutory power, under, 373. illustrations of circumstances which justifj^, 389 et seq. REMUNERATION OF TRUSTEE, 311 et seq. And see Profits, etc. as a general rule trustees must act without, ib. aliter in case of certain constructive trusts, 312, 314. ( 7i ) Index. EEMUNEEATION OF TRVSTEE-continued. as a general rule trustees must act without — continued, aliter in case of certain constructive trusts — continued. or where settlement or court authorises remuneration, 312, 313, 314. trustee has stipulated for it, 312. wliere sanctioned by a will it is regarded as a legacy for purposes of duty, and is invalid where trustee witnessed the will, or testator insolvent, 313 n. (?/). authorised, does not add to his liability, 258. but may prevent the court excusing honest and reasonable breach of trust, 258 n. (e). where trustee is really beneficial owner subject to a charge, 318. business, trustee of a, not entitled to salary however onerous the duties, 314. exception in constructive trusts, 312, 314. rule different in America, 314 n. (/). commissions paid by third parties not allowed to be kept by trustee, 316. court authorising remuneration, instance of, 314. directorship fees, where trustee is a company director by virtue of shares held as trustee, 317. judicial trustee, in case of, 407, 409. solicitor trustee must not generally make charges, 312 et seq. aliter if authorised by settlement, 313. but settlement construed very strictly as to this, ih. beneficiaries always entitled to tax solicitor's bill, and he must inform them of their right to do so, ib. exception in litigious work under rule in Gradock v. Piper, 314. no exception even where third party has to pay the trustee's costs, 313. but rule does not extend to indirect profits, 317. power to make " professional chai-ges " does not extend to loss of time, etc., 313. " whether busi ness usually within the business of a solicitor or not " does not embrace work altogetter outside professional avocations, ih. rule in Gradock v. Piper, allowing solicitor trustee to malce professional charges in litigious matters, 314. RENEWAL OF LEASES. See Lease. RENT CHARGE, redemption of by life tenant, 251. RENTS, pending conversion, 239. trustees should not allow, to fall into arrear, 262. may employ a collector, 307. or may allow one of their number to collect, ih. REPAIRS OF TRUST PROPERTY, American law as to, 252 n. (m). cost of, may be equitably apportioned by court between corpus and income, 247, 253 et seq. dilapidated when settlement first came into operation, how cost of repairs borne, 253. duty of trustee as to, 269. freehold property, of, 252, 254. infant's property, of, 255. leaseholds, cost of, usually falls upon income, unless in state of disrepair when settlement first came into operation, 254. but remainderman has no claim against executors of tenant for life for dilapidations, 253, 254. ( 75 ) Index. REPAIRS OF TRUST FROl^ERTY— continued. legal estate in fee in trustees, court will equitably apportion the cost between corpus and income, 247, 253 et seq. may also authorise mortgage for raising the cost, 253. no jurisdiction where legal remainders given beneficially, 334.' legal remainderman, interest of, cannot be charged for contri- bution by court, 234. tenant for life not liable for, 252. redrainage of house, 254 n. (a). Settled Land Acts, provisions of, as to, 254, 255. what amounts to rebuilding under Act of 1890... 255. summary of the law as to, 253 et seq. tenant for life, legal, not liable to make, 252. trustees may make necessarj^, to leaseholds, without any order, 253. and repay themselves out of income or corpus without pre- judice to the ultimate apportionment of burden between tenant for life and remainderman, ib. REPAYMENT, 516. See Over-payment. REQUEST, breach of trust committed at the, of beneficiary, 501, 507. See Beeach of Trust, sub-head " protection accorded to trus- RESERVE FUND, distribution of by company, when capital and when income, 223. RESIDUARY ESTATE, SETTLED, as to conversion of, see Wasting and Reversion.\ry Property. not necessary to convert securities on wMch the trustees are authorised to invest, 271. RESULTING TRUST, 149 et seq. (1) where the legal ownership is disposed of, but the equitable is not, or only partially, 149 — 155. charge, does not implv a resulting trust of balance, 153. charitable fund collected for benefit of specified individuals, when surplus results, and when not, 152. donee spoken of as trustee, but no trust declared, 151. unless it appears that he was to take what was un- disposed of, ib. evidence, how far admissible to rebut, 149, 154. evidence to rebut resulting trust, ib. express trust which does not exhaust the entire beneficial interest, 149 et seq. balance of fund raised for the relief of particular in- dividuals, 152. deeds of assignment for benefit of creditors, 152. aliter where it can be collected that collectors were to take the whole fund even although it ex- ceeded 20s. in the £, ih. failure of express trust, 149, 150, 153. absence of writing sufficient to satisfy statute of frauds, 153.' express trust in deed of even date which is never exe- cuted, 154 n. (6). incompatibility of trusts declared, with the nature of the property, 151. e.g., trusts of real estate only applicable to per- sonalty, ih. ( 76 ) Index. RESULTING TRUST-continued. (1) where the legal ownership is disposed of, but the equitable is not, or only partially — continued. lapse, in consequence of, 153. marriage, settlement in consideration of, wliicli never takes place, 154. or where mai-riage annulled, ib. total failure of consideration, by reason of, ib. trusts for creditors, where there is a surplus, 152. unclaimed dividends under, ib. unless intention appears that creditors are to take the property absolutely, ib. uncertainty of express trust, 153. (2) where declared trust illegal, 155 et seq. doctrine of in pari delicto, where the illegal purpose has been carried out, 156 et seq. fraud on game laws, 156. settlement on illegal mai'riage may be valid, ib. unless the trust is only to commence on marriage, 157, illegal pui'pose not carried out, may give rise to a result- ing trust, 156 — 158. difference between English and American law as to this, 155 n. (0- truet to defeat creditors, 157. escape forfeiture, 158. serving aji oflBce, ib. illegal purpose which, if carried out, would defeat a legal prohibition, or effect a fraud always gives rise to a resuj.ting trust, 155, 158. charitable uses, 159. perpetuities and accumulations, 158. (3j purchases in, and voluntary transfers into another's name, 159 et seq. general prima facie presumption of resulting trust in favour of purchaser or grantor, 159, 160. aliter where real estate is voluntarily conveyed by owner to use of another, 160. or where a purchase of any kind of property or a transfer of personal estate is made in the name of a wife or child, 160, 161 et seq. even where marriage subsequently annulled, 162. but questionable whether exception applies to a purchase by a mother in favour of son, 163 et seq. or by a wife in favour of husband, 265. or where the purchase money is money lent to the person in whose name the purchase is taken, 161. or where a purchase is made in the names of trustees of an existing trust, 163. parol evidence of intention, how far admissible, 161 et seq. person in loco parentis, to a child in whose name a purchase is made, 160, 165. even where child illegitimate, 165. purchase money partly advanced by person in whose name the property is taken and partly by another, 160. surrounding circumstances may aid or rebut the general pre- sumption, 162. e.g., contemporaneous acts of the person who paid the purchase money, 162, 163. or the fact that a son in whose name a purchase was made was the solicitor of his father, 163. ( 77 ) Index. RESULTING TB.\J8T—contimced. (y) purchases in, and voluntary transfers into another's name— continued. surrounding circumstances may aid or rebut the general pre- sumption — continued. e.g., that the person who paid the purchase-money or made the voluntary trust was the husband or father of, or stood in loco parentis to, the person into whose name the property was transferred, 161 et seq., 166. or that i^roperty was taken in joint names as trustees and no trust effectively declared, 163, wife's money invested in husband's name, resulting trust imjilied, 165. whether capital or savings of income, ib. in all such cases the question is whether there was a previous absolute gift cut down in certain events which do not happen, 170. (4) to whom property results, when there is a resulting trust, 160 et seq. conversion, trust for, in instrument which either wholly or partially fails, 166. power to convert, does not operate to effect conversion, unless actually exercised, 174. property results to person who would have taken if no conversion had been directed, 166, 168. as to deeds, 166, 167. wills, 166, 167 et seq. where person to whom property results dies before get- ting it in, as between his real and personal represen- tatives it is treated as converted unless trust for conversion wholly fails, 166, 171 et seq. deed, where resulting trust arises of property comprised in, it results to settlor, 106, 167. marriage settlement where no issue born, 167. where settlor dies before getting the property back, 167. will, where resulting trust arises of property comprised in, it results to the person who would have taken it if the will had not been made, notwithstanding a trust for conversion, 166, 167 et seq. aliter where absolute gift to A., with subsequent direc- tion to settle on A. and her issue which fails for want of issue, 168. or where gift to a class or such of them as survive A. and none of them do so, 170. even where will declares that the property is to be considered as converted for all purposes, 167, 168. notwithstanding that the subsisting trusts of the will require that the conversion shall be made, 167. person in whose favour it results takes it as converted unless the trust for conversion wholly fails, 166, 17 1 et seq. RETIREMENT OF TRUSTEE, 373 et seq. collusive, to enable new trustees to commit breach of trust, 209. consent of all beneficiaries, by, 373, 375. court, by order of the, ih. appointment of a successor, not absolutely essential, 374. costs of, 374, 375. does not qualify him to purchase trust property from the other trustees, 316. unless a long period has elapsed, 319 n. (o). ( 78 ) Index. RETIREMENT OE TRJJSTEE-continued. express power, under, 373, 374. costs, of, general, payable out of trust estate, 374. in general, necessitates appointment of new trustee, ib. exception where two will remain, ib. statutory power contained in Trustee Act, 1893, under, ib. costs of, payable out of trust estate, ib. does not necessitate appointment of successor where two trustees left, unless settlement expressly prescribes the contrary, 373, 374. REVERSION, trustee of residuary personal estate should generally sell, 228 et seq. if sale postponed, tenant for life entitled to part of proceeds as compensation for past income, 234, 242. REVOCATION of a trust, whether based on value or voluntary, not permitted if it be complete and executed, 38 et seq. See Voluntary Trust. aliter, if the very object with which trust was created has failed, 92, 153, 154. if there was fraud or undue influence attendant on creation of trust, 92, 97 et seq. trust created in ignorance or mistake, as to its legal effect, 92 et seq. or if the trust voluntary and executory. See Voluntary Trusts ; Volunteer. improvident provisions, how far evidence of mistake, 95. not revocable even in above cases, if acquiesced in, 93, 99 et seq. or if parties cannot be placed in statu quo, 100. onus of proving bona fides on cestuis que trusts where they occupy a fiduciary position towards settlor, 98 et seq. aliter, where there is no fiduciary relation, 93. power of, not essential to validity of a voluntary settlement, 93 et seq. unless the beneficiary occuj^ies a fiduciary position towards the settlor, 99. S. SALARY, when capable of being alienated, 57 et seq. trustee not generally entitled to a, 311 e^ seq. unless a judicial trustee, 408. SALE OF TRUST PROPERTY, approval of, by judge, 447. directed, but no trustee appointed to sell, 17. joint, by trustees and others, 263, 264, 304, 343. power of, none unless given expressly, impliedly, or by statute, 335. implied powers, 336. statutory powers, 338 et seq. Conveyancing Act, 1911. ..341. foreclosed mortgaged estates, ib. Lands Clauses Acts, 338. Lord St. Leonards' Act, 339. renewing leases, for raising funds for, 340. Settled Land Acts, on behalf of infant, ib. Succession Duty and Finance Acts, ib. ( 79 ) Index. SALE, POWER OF, conduct of, by trustees, see infra, Sale, Trustees for, sub-head " Conduct." considerations as to proper exercise of, 222. extinguishment of, when all beneficial interests absolute, 358. implied in executory trusts, 124. may be void under rule against perpetuities, without depriving beneficiaries if their interests are vested, 74. when void under rule against perpetuities, 74. SALE, TRUSTEES FOR, 315 et seq. cannot sell to one of themselves, except with sanction of cou^fc, 315, 318 et seq. absolute nature of prohibition, 318 et seq. agents, prohibition applies to, 320. applies to trustee de son tort, 319. bare trustee, rule inapplicable to, 321. aliter where he has been an active one, 319, 321. beneficiaries, trustee may purchase from, 315, 321. but court regards such transaction with jealousy, 321. conditions required for validity of such a purchase, 315, 321. court may allow a trustee to purchase in a proper case, 320. procedure for obtaining such leave, ih. disclaimer of trust removes the disability, 321. intermediary, sale through, futile, 319. joint stock company, sale to, by trustee who is a share- holder may be upheld, 320. aliter if " one man company," ib. onus of bona fides on company, ib. leave of coui-t, rule may be waived by, 315, 320. purchaser from trustee who has purchased, gets bad title, 319. repurchase by trustee at future date not necessarily bad, ib. 320. even where he sold with hope of repurchasing, 319. retirement, trustee cannot by, qualify himself to purchase from trustees, ib. but after many years retirement he may perhaps pur- cbaise, ib. n. (o). subsidiary settlement, whether trustee of, can purchase for his own benefit from trustees of origin,al settlement, 321. trustee of trustee's mjarriage settlement may purchase from trustee, 322. trustee purchasing will have to repay rents, 319, 320. wife or child of trustee under same disability, 98, 176. conduct of sales by, 341 et seq. auction or private contract permissible, 342. buy in, may, ib. secus under old law, 344. delegation of duty, how far permissible, 296. depreciatory conditions, should not use, 264, 342. general duties of trustees in relation to, 341 et seq. leaseholds of, may be carried out by sub-leases in certain cases, 345. may join with others in a joint sale in certain cases, 263 et seq., 304. may not give option of future purchase, 265. old law as to, 343. statutory conditions, may adopt, 264. surface and minerals, can only sell separately by leave of court unless express power, 344. valuation, should procure. 265. ( 80 ) Index. SALE, TRUSTEES FOR-continued. improvident, 265. depreciatory conditions should be avoided, 264, 342. leaseholds can be sold by way of underlease in certain cases, 345. mortgage, cannot in general, unless the power of sale is merely ancillary to the raising of charges, 335 et seq. See Mortgage. receipt of, for purchase money, 346 et seq. rescind contract, may, 342. restrained by injunction, 476. SALVAGE, court may modify trust on the ground of, 218 et seq. recoupment of money spent by way of, by part owner, 182 et seq. or trustee, 331. SCRIP, beneficiaries may demand production of, 324. SECRET TESTAMENTARY TRUST, 82 et seq. SECURITIES. See Investment ; Appropriation ; Calling In ; Calls. custody of, 267, 268, 309. proper course where payable to bearer, 268, 309. depreciated, not necessarily the duty of trustees to realise, 261, 266. SEPARATE ACCOUNT, effect of fund carried to, in administration action, 525. SEPARATE TRUSTEES. See Severance. appointed to administer fund which is appointed under power in original settlement, 425 — 428. SEPARATE USE. See Estate of Trustee ; Executory Trust ; Married Woman. SEPARATION, trust in relation to, between husband and wife, when legal, 70. income to wife so long as she shall cohabit, with gift over to husband on cesser of cohabitation, 71. to deserted wife so long as separation continues, ib. SET-OFF of costs due to trustee, against breach of trust, 438. of debt due from beneficiary to estate, 514. even where statute-barred, ib. of gain on one distinct breach of trust against loss on another, not allowable, 470. aliter where there is an ultimate gain as the result of breach, 471. SETTLE, DIRECTION TO, 123 et seq. See Executory Trust. SETTLED LAND ACTS, duty of trustees under, as to investment on a mortgage by direc- tion of life tenant, 275 n. (c), 284 n. («). investment of capital money under, 275. sect. 1 of Trustee Act applicable to, 275 n. (c) repairs and improvements authorised by, 255. SETTLEMENT, enquiry as to, by persons dealing with married women, 523 n. (w). future acquired"^ property, of. See Future Property. married woman's equity to a, 333, 444. subsidiary, original trustees paying without notice of, 289. T. ( 81 ) R R Index. SETTLEMENT— co«f2«?3 L. T. 634 ; 55 Sol. J."l09 . ' 3 Birchall, Re, Birchall v. Ashton (1889), 40 Ch. D. 436 ; 60 L. T. 3()9 ; 37 W. R. 387 1« Biscoe, i?e, Biscoe I'. Biscoe, [1914] W. N. 302 ; 137 L. T. Jour. 292 . . 6 Bland's Settlement, Re, Bland v. Perkin, [1905] 1 Ch. 4 ; 74 I.. J. Ch. 28 ; 91 • L. T. 681 t' Blow. Re, St. Bartholomew's Hospital v. Cambden, [1914] 1 Ch. 233 ; 83 L. J. Ch. 185 ; 109 L. T. 913 ; 58 Sol. J. 136 ; 30 T. L. R. 117 . . 22 Bogg, Re, Allison v. Paice, [1917] 2 Ch. 239 ; 86 L. J. Ch. 536 ; 116 L. T. 714 10 Bomore Road, Re, [1906] 1 Ch. 359 ; 75 L. J. Ch. 157 ; 54 W. R. 312 ; 94 L. T. 403 ; 13 Manson 67 1'-^ Booth, Re, Hatterslev r. CowgiU (1917), 86 L. J. Ch. 270 ; 116 L. T. 465 . 1 Boulter, Re, Capital' and Counties Bank v. Boulter, [UHS] 2 Ch. 40; 87 L. J. Ch. 385; 118L. T. 783 15,16 vi Table of Further Cases. Bowlby, Be, Bowlby v. Bowlby, [1904] 2 C'h. P>85 ; 73 L. J. Ch. 810 ; 91 L. T. 573 ; 53 AV. R. 270 10 Brady V. Brady, [1920] 1 Ir. R. 170 7 Bragg, Rp, (1912, October Ifi). Unreported 17 Brail, Re, Ex ■parte Norton, [18931 2 Q. B. 381 ; 02 L. J. Q. B. 457 ; 09 L. T. 323 ; 41 W. R. 023 ; 10 Morrell 100 ; 5 R. 440 5 British America Elevator Co. v. Bank of British North America, [1919] A, C. 058 ; 88 L. J. P. C. 118 ; 121 L. T. 100 22 Consolidated Oil Corporation. Ltd., Re, Howell v. The Co., [1919] 2 Ch. 81 ; 88 L. J. Ch. 260 ; 120 L. T. 605 ; 03 Sol. J. 431 . . 14 Red Cross Balkan Fund, Re, British Red Cross Society v. Johnson, [1914]2Ch. 419; .SOT. L. R. 002; 58Sol.J. 755. ... 7 Reinforced Concrete Engineering Co., Ltd. i\ Lind, [1917] W. N. 38 ; 86 L. J. Ch. 480 ; 110 L. T. 243 ; 33 T. L. R. 170 ; 34 R. P. C. 101, 272 8 Brookes, Re, Brookes v. Taylor, [1914] 1 Ch. 558; 83 L. J. Ch. 424; 110 L. T. 091 ; 58 Sol. J. 280 12, 13 Brown, Re, Wace v. Smith, [1918] W. N. 118 ; 02 Sol. J. 487 ; 144 L. T. Jour. 441 14 Bruty 7'. Edmundson, [1918] 1 Ch. 112; 87 L. J. Ch. 108; 118 L. T. 1 . 21 Bullock's Will Trusts, Re, Bullock r. Bullock, [1915] 1 CIi. 493 ; 84 L. J. Ch 463; 112 L. T. 1119; 59 Sol. J. 441 3,4 Bulteel's Settlements, Re, Bulteel v. ISIanley, [1917] 1 Ch. 251 ; 86 L. J. Ch. 294; llOL. T. 117; (1917) H. B. R. 105 5 Burroughs-Fowler, Re. Trustee of Burroughs-Fowler v. Burroughs-Fowler, [1916] 2 Ch. 251 ; 85 L. J. Ch. 550 ; 1 14 L. T. 1204 ; 32 T. L. R. 493 ; 00 Sol. J. 538; (1910) H. B. R. 108 4 Busfield, i?r, (1919, February 20th), (unreported) 11 C. Cain's Settlement, Re, Cain v. Cam, [1919] 2 Ch. 304 ; 88 L. J. Ch. 513 ; 121 L. T. 490 12 Capel's Trusts, Re, Arbuthnot v. Galloway, [1914] W. N. 378 ; 137 L. T. Jour. 590 ' 6 Carter v. Hungerford, [1917 1 1 Ch. 200 ; 80 L. J. Ch. 162 ; 115 L. T. 857 . 2 Carter and Kendcrdine's Contract, Re, [1897] 1 Ch. 770 ; 06 L. J. Ch. 408 ; 76 L. T. 476 ; 45 W. R. 484 ; 13 T. L. R. 314 ; 4 Manson 34 ... 5 Castle, i?^ Nesbitt ('. Baugh, [1916] W. N. 195 10 Cattell, Re, Cattell v. C;itt<-ll ; Cattell v. Dodd, [1914] 1 Ch. 177 ; 83 L. J. Ch. 322; llOL. T. 137; 58 Sol. J. 67 3 Cavendish Browne's Settlement Trusts, Re, Hornor v. Rawle, [1916] W. N. 341 ; 61 Sol. J. 27 . . 2, 6 Chafer and Randall's Contract, Re, [1916] 2 Ch. 8 ; 85 L. J. Ch. 435 ; 114 L. T. 1076 ; 60 Sol. J. 444 23 Chance's Settlement, Re, Chance v. Billing, [1918] W. N. 34 ; 02 Sol. J. 349 ; 114 L. T. Jour. 258 . . . ^ 17 Charteris, Re, Charteris v. Biddulph, [1917] 2 Ch. 379 ; 80 L. J. Ch. 658 ; 117 L. T. 391 : 01 Sol. J. 591 14 Cherry's Trusts, Re. Robinson r. Trustees for Wesleyan ]\Iethodist Chapel Purposes. [1914] 1 Ch. 83 ; 83 L. J. Ch. 142 ; 110 L. T. 16 ; 58 Sol. J. 48 ; 30 T. L. R. 30 21 Chesterfield's (Earl of) Trusts, Re (1883), 24 Ch. D. 643 ; 52 L. J. Ch. 958 ; 49 L. T. 261 ; 32 W. R. 361 11 Clarke's Settlement Trusts, Re, Wanklyn v. Streatfield, [1916] 1 Ch. 407 ; 8ft L. J. Ch. 592; 114L. T. 501 3 Cohen, Re, Cohen v. Cohen, [1915] W. N. 361 7 , ^e, V. , [1918] W. N. 252 ; 02 Sol. .L 682 ; 145 L. T. Joui 234 19 Colles' Estate, Re, [1917] 1 Ir. R. 260 ; 51 Ir. L. T. 125 . . . . 5 Condrin, Re, Colohan r. Condrin, [1914] 1 Ir. R. 89 7 Connell's Settlement, Re, Fair v. Connell, [1915] 1 Ch. 867 : 84 L. J. Cb. 601 . 113L. T. 234 7 Table of Further Cases. vii Conyiigham, Re, Conyngham v. Convnghani, [l'J2U] 2 CJu 495 ; 89 L. J. Ch. 569 ; 64 Sol. J. 651 ; 36 T. L. R. 801 7 Coode, Re, Coode v. Foster (1913), 108 L. T. 94 19 Cooke, Re, Randall v. Cooke, [1916] 1 Ch. 480 ; 85 L. J. Ch. 452 ; 114 L. T. 555 ; 60 Sol. J. 403 8 Cooper, Re, Cooper v. Cooper, [19131 1 Ch. 350 ; 82 L. J. Ch. 222 ; 108 L. T. 293 ; 57 Sol. J. 389 16 Cotter, Re, Jennings v. Nye, [1915] 1 Ch. 307 ; 84 L. J. Ch. 337 ; 112 L. T. 340; 59 Sol. J. 177 18, 19 Cozens, Re, Green v. Brisley, [1913] 2 Ch. 478 ; 109 L. T. 306 ; 57 Sol. J. 687 2, 5 Crabtree, Re, Thomas v. Crabtree, [1912] W. N. 24 ; 100 L. T. 49 . . 9 Craig V. Lamoureux, [1920] A. C. 349 ; 89 L. J. P. C. 22 ; 122 L. T. 208 ; 36 T. L. R. 26 5 Craven, Re, Watson v. Craven, [1914] 1 Ch. 358 ; 83 L. J. Ch. 403 ; 109 L. T. 846 ; 58 Sol. J. 138 10 Cussons, Ltd., i?e(1904), 73L. J. Ch. 296; 11 Mansonl92 . ... 8 Customs and Excise Officers' Mutual Guarantee Fund, Re, Robson v. Att.-Gen., [1917] 2 Ch. 18 ; 86 L. J. Ch. 457 ; 117 L. T. 86 ; 33 T. L. R. 311 . . 7 D, Dacre, Re, Whitaker v. Dacre, [1915] 2 Ch. 480 ; 60 Sol. J. 44 . . 21, 22 , Re, V. , [1916] 1 Ch. 344 ; 85 L. J. Ch. 274 ; 114 L. T. 387 ; 60 Sol. J. 305 21, 22 Davey, Re, Prisk v. Mitchell, [1915] 1 Ch. 837 ; 84 L. J. Ch. 505 ; 113 L. T. 60 ^ 4 Davies, Re, Lloyd v. Cardigan County Council, [1915] 1 Ch. 543 ; 84 L. J. Ch. 493 ; 112 L. T. 1110 ; 59 Sol. J. 413 ; 79 J. P. 291 ; 13 L. G. R. 437 . 4 Davies' Trusts, Re (1914), 138 L. T. Jour. 162 21 Davison's Settlement, Re, Cattermole Davison v. Mmiby, [1913] 2 Ch. 498 ; 58 Sol. J. 50 6 Daw, Re, Binney v. DaAV (1917), 87 L. J. Ch. 441 ; 118 L. T. 151 . . . 1. 2 Dealtry, Re, Davenport v. Dealtry, [1913] W. N. 138 ; 108 L. T. 832 . .11 D'Epinoix's Settlement, Re, D'Epmoix v. Fettes, [1914] 1 Ch. 890 ; 83 L. J. Ch. 656 ; 110 L. T. 808 ; 58 Sol. J 454 . . . . 14, 15 De Sommery, Re, Coelenbier v. De Sommery, [1912] 2 Ch. 622 ; 107 L. T. 253 ; 57 Sol. J. 78 17, 18, 19 Doherty v. Power, [1916] 1 Ir. R. 337 5 Drummond, Re, Ashworth v. Drummond, [1914] 2 Ch. 90 ; 83 L. J. Ch. 817 ; HI L. T. 156; 30 T. L. R. 429; 58 Sol. J. 472 3 Dunstan, Re, Dunstan v. Dunstan, [1018] 2 Ch. 304 ; 87 L. J. Ch. 597 ; 119 L. T. 561 ; 63 Sol. J. 10 1 E. Fades, ifr, Eades i;. Eades, [1920] 2 Ch. 353 1 17 Edwards, Re, Newbery v. Edwards, [1918] 1 Ch. 142 ; 87 L. J. Ch. 248 ; 118 L. T. 17 ; 62 Sol. J. 191 ; 34 T. L. R. 135 . ... .11 Elliot, Re, Montgomery v. Potterton, [1918] 1 Ir. R. 41 . . . .4 Elliott, Re, Public Trustee v. Pinder, [1918] 2 Ch. 150 ; 87 L. J. Ch. 449 ; 118 L. T. 675 ; 62 Sol. J. 383 3 England's Settlement Trusts, Re, Dobb v. England, [1918] 1 Ch. 24 ; 87 L. J. Ch. 73; 117 L. T. 466 12,21 Evans, Re, Jones v. Evans, [1913] 1 Ch. 23 ; 82 L. J. Ch. 12 ; 107 L. T. 604 ; 67 Sol. J. 60 ; 19 Manson 397 9 V. Shotton, [1918] W. N. 201; 87 L. J. Ch. 527; 119 L. T. 233; 62 Sol. J. 603 12 Eyre, Re, Johnson v. Williams, [1917] 1 Ch. 351 ; 86 L. J. Ch. 257 ; 116 L. T. 469 ; 61 Sol. J. 330 16 viii Table of Further Cases. F. PAGE Ffennell's Settlement, lie. Wright v. Holtoii, [19181 1 Ch. 91 ; 87 L. J. Ch. 54 ; 118 L. T. 171 ; 62 Sol. J. 103 ; 34 T. L. R. 86 . . . . 7, 8 Forster-Brown, Ee, Barry v. Forster-Brown, [1914] 2 Ch. 584 ; 84 L. J. Ch. 361 ; 112 L. T. 681 8, 10 Foster, Re, Hunt r. Foster, [1920] 1 Ch. 391 ; 89 L. J. Ch. 206 ; 122 L. T. 585 8 Freman, Be, Dimond v. Newburn, [1898] 1 Ch. 28 ; 07 L. J. Ch. 14 ; 77 L. T. 460 12 G. Gardiner (W.) & Co., Ltd. v. Dessaix, [1915] A. C. 1096 ; 84 L. J. P. C. 231 . 3 Garchier, Re, Huey v. Cunnington, [1920] 2 Ch. 523 ; 36 T. L. R. 784 . . 4 Gardom, Re, Le Page v, Att.-Gen., [1914] 1 Ch. 662 ; 83 L. J. Ch. 681 ; 109 L. T. 845 .1,4 Garnham, Re, Taylor v. Baker, [1916] 2 Ch. 413; 85 L. J. Ch. 646; 115 T 'Y 143 ....... 3 Garside, Re, Wragg'i'. Garside,'[1919] 1 Ch. 132 ; 88 L. J. Ch. 116 ; 120 L. T. 339 ; 03 Sol. J. 156 ; 35 T. L. R. 129 10 Gent and Eason's Contract, Re, [1905] 1 Ch. 386 ; 74 L. J. Ch. 333 ; 92 L. T. 356 ; 53 W. R. 330 15 GiUies' Settlement, Re, Archer v. Penney, [1917] 2 Ch. 205 ; 86 L. J. Ch. 769 ; 117 L T 333 . 5 Godfree, Re, Godfree v. Godfree, [1914] 2'ch. 110 ; 83 L. J. Ch." 734 ".^ . 11 Godwin's Settlement, Re, Godwin v. Godwin (1918), 87 L. J. Ch. 645 ; 62 Sol. J. 729 ; 145 L. T. Jour. 234 13, 21 Gosling V. Gosling (1859), Johns. 265 ; 5 Jur. (n. s.) 910 ; 123 R. R. 107 . 16 Goswell's Trusts, Re, [1915] 2 Ch. 106 ; M L. J. Ch. 719 ; 113 L. T. 319 ; 59 Sol. J. 576 7 Griffith, Re, Carr v. Griffith (1879), 12 Ch. D. 655 ; 41 L. T. 510 ... 9 Grundy, iJc, Grundy r. Holme (1917), 117 L. T. 471 9,10 H. Hahasy v. Guiry, [1917] 1 Ir. R. 371 7 Hallett's Estate, Re, KnatchbuU v. Hallett (1880), 13 Ch. D. 696 ; 49 L J. Ch. 415 ; 42 L. T. 421 ; 28 W. R. 732 22 Hampton, Re, Public Trustee v. Hampton (1918), 03 Sol. J. 68 ; 88 L. J. Ch. 103; 146 L. T. Jour. 43 19 Hargreaves, Re, Hargrcaves v. Hargreaves (1903), 88 L. T. 100 ... 9 Harrison, Re, Hunter v. Bush, [1918] 2 Ch. 59 ; 87 L. J. Ch. 433 ; 118 L. T. 756 ; 62 Sol. J. 568 7 Hart, Re, Ex i)arte Green, [1912] 3 K. B. 6 ; 81 L. J. K. B. 743 ; 56 Sol. J. 615 ; 28 T. L. R. 482 5 Harter, Re, Harter v. Harter, [1913] W. N. 104 ; 57 Sol. J. 444 . . . 15 Hastings Corporation v. Letton & Sons, [1908] 1 K. B. 378 ; 77 L. J. K. B. 149 ; 97 L. T. 582 ; 20 T. L. R. 456 ; 15 JManson 58 . . . .19 Hatch, Re, Hatch v. Hatch, [1919] 1 Ch. 351 ; 88 L. J. Ch. 147 : 120 L. T. 694 22 Hatton, Re, Hockin v. Hatton, [1917] 1 Ch. 357 ; 86 L. J. Ch. 375 ; 116 L. T. 281 ; 61 Sol. J. 253 9 Hawkins, Re, White v. White, [1916] 2 Ch. 570 ; 115 L. T. 643 ; 61 Sol. J. 29 10 Haygarth, Re, Wickham v. Holmes, [1912] 1 Ch. 510 ; 81 L. J. Ch. 255 ; 106 L. T. 93 2 Hayter's Mortgage Trusts, i?c, [1919] W. K 32 19 Hazcldine, Re, Public Trustee v. Hazeldine, [1918] 1 Ch. 433 ; 87 L, J. Ch. 303 ; 118L. T. 437; 62 Sol. J. 350 11,13 Head, Re, Head v. Head, [1919] W. N. 109 ; 88 L. J. Ch. 230 ; 35 T. L. R. 352; 63Sol. J. 464; 146 L. T. Jour. 457 13 Hewett, Re, Eldridge v. lies, [1918] 1 Ch. 458 ; 87 L. J. Ch. 209 ; 118 L. T. 624 4 Table of Further Cases. ix Hewitt's Settlement, Re, Hewitt v. Hewitt, [1915] 1 Ch. 228 ; 81 L. J. Ch. 358; 112 L. T. 287 ; 59 Sol. J. 177 19 Hicklin, Re, Public Trustee v. Hoare, [19171 2 Ch. 278 ; 86 L. J. Ch. 740 ; 117 L. T. 403 ; 61 Sol. J. 630 ; 33 T. L. R. 478 12 Hill, Re, Fettes v. Hill, [1914] W. N. 132 ; 59 Sol. J. 399 . . . .14 Hodgson, Re, Weston v. Hodgson, [1913] 1 Ch. 34 ; 82 L. J. Ch. 31 ; 107 L. T. 607; 57 Sol. J. 112 17 Holden, Re, Ex parte Official Receiver (1887), 20 Q. B. 1). 43 ; 57 L. J. Q. B. 47 ; 58 L. T. 118; .36 W. R. 189 6 Hollebone, Re, Hollebone v. HoUebone, [1919] 2 Ch. 93 ; 88 L. J. Ch. 386 ; 121L. T. 116; 63 Sol. .J. 553 11 Hollins, Re, Hollins v. Hollins, [1918] 1 Ch. 503 ; 87 L. J. Ch. 326 ; 118 L. T. 672 ; 62 Sol. J. 403 ; 34 T. L. R. 310 14 Helton's Settlement Trusts, Re, Holton v. Holtou, [1918] W. N. 78 ; 119 L. T. 304 ; 62 Sol. J. 403 14 Homer, Re, Cowlishaw v. RendeU (1916), 86 L. J. Ch. 324 ; 115 L. T. 703 . 4 Houston V. Burns, [1918] A. C. 337 ; 87 L, J. P. C. 99 ; 118 L. T. 462 ; 34 T. L. R. 219 1 Howarth, Re, Macqueon v. Kirby, [1916] W. N. 50 ; 60 Sol. J. 307 . . 6 Howell, Re, Liggins v. Buckingham, [1915] 1 Ch. 241 ; 84 L. J. Ch. 209 ; 112 L. T. 188 1 Humphrey's Estate, Re, [1916] 1 Ii. R. 21 1 I. Inman, Re, Inman v. Inman, [1915] 1 Ch. 187 ; 84 L. J. Ch. 309 ; 112 L. T. 240; 59 Sol. J. 161 H J. L. Lamb a French, [1918] 1 Ir. R. 420 Lambert, Re, Lambert v. Lambert, [19101 1 Ir. R. 2! T. L. R. 379 22 , r,p, V. , [1920] 1 Oh. 423 ; 89 L. J Ch. 2oS ; 122 L. T. 714 ; 04 Sol. J. 290 ; 30 T. L. R. 205 22 Rogers, Re, PubHc Trustee v. Rogers, [1915] 2 Ch. 437 ; 84 L. J. Ch. 837 ; CO Sol. J. 27 10,11 Roscoe (James) (Bolton), Ltd. v. Winder, [1915] 1 Ch. 62 ; 84 L. J. Ch. 286 ; 112 L. T. 121 ; 59 Sol. J. 105 ; (1915) H. B. R 61 . . . . 21 Rowe, Re, Merchant Taylors' Co. v. London Corporation (1914), 30 T. L. R. 528 1 B. Salaman, Re, De Pass v. Sonnenlhal, [190S] 1 f'h. 4 ; 77 L. J. Ch. GO ; 98 L. T. 255 10 Sale, Re, Nisbet r. Philp, [1913] 2 Ch. 697 ; 83 L. J. Ch. 180 ; 109 L. T. 707 ; 58 Sol. J. 220 9, 10 Salomons, Re, Public Trustee v. Wortlev, [1920] 1 Ch. 290 ; 89 L. J. Ch, 222 ; 122L. T. 670; 30 T. L. R. 212. ^ 21 Sandys, Re, Union of London and Smiths Bank v. Litchfield, [1916] 1 Ch. 511 ; 85L. J. Ch. 418; 114L. T. 690; 32T. L. R. 355 .... 10 Schrager, Re (1913), 108 L. T. 346 5 Shaw, Re, Public Trustee r. Little, [1914] W. N. 141 ; 110 L. T. 924; 58 Sol. J. 414 ; 30 T. L. R. 418 20 Sherrs', i?e, Sheny r. Sherrv, [1913] 2 Ch. 508 ; 109 L. T. 474 ... 12 Sichei's Settlements, Re, Sichel v. Sichel, [1916] 1 Ch. 358 ; 85 L. J. Ch. 285 114 L. T. 546 18 Sinclair v. Fell. [1913] 1 Ch. 155 ; 82 L. J. Ch. 105 ; 108 L. T. 152 ; 57 Sol. J. 145 ; 29 T. L. R. 103 G Slater, iff. Slater V. Jonas (1915), 113 L. T. 691 . . . . 10,11 Smith, Re (1918), 52 Jr. L. T. 113 7 , Re, Johnson v. Bright -Smith, [1914] 1 Ch. 937 ; 83 L. J. Ch. 687 : 110 L. T. 898; SOT. L. R. 411 3 , Re, Robson v. Tidy, [1900] W. N. 75 6 Smyth r. BjTne, [1914] Tlr. R. 53 7 Soden and Alexander's Contract, Re, [1918] 2 Ch. 258 ; 87 L. J. Ch. 529 ; 119 L. T. 520 23 Solomon, Re, Nore v. Mever, [1912] 1 Ch. 261 ; 81 L. J. Ch 169 ; 105 L. T. 951 ; 56 Sol. J. 109 ; 28 T. L. R. 28 . .14 , Re, r. , [1913] 1 Ch. 200 ; 82 L. J. Ch. 160 ; 108 L. T. 87 14 Southwell, i?e. Carter r. Hungerford (1915), 113 L. T. 311 .... 11 Spencer, Re, Duncan v. Royal Geological Society (1916), 33 T. L. R. G . IS Stamford and Warrington (Earl), Re, Payne v. Grey, [1916] 1 Ch. 404 ; 85 L. J. Ch. 241 ; 114L. T. 551 12 Strong t'. Bird (1874), L. R. 18 Eq. 315 ; 30 L. T. 745 ; 22 W. R. 788 . . 2 Sudlow, Re, Smith v. Sudlow, [1914] W. N. 424 ; 59 Sol. J. 162 ... 13 Swain, Re, Phillips v. Poole (1908), 99 L. T. 604 ; 24 T. L. R. 882 . . 3 Swan, Re, Witham v. Swan, [1915] 1 Ch. 829 ; 84 L. J. Ch. 590 ; 113 L. T. 42 ; 31 T. L. R. 266 12 T. Talbotv. Jevers, [1917]2Ch. 363; 8GL. J. Ch. 731; 117L. T. 430 . . 7 Taylor's Trusts, Re, Matheson v. Tavlor, [1905] 1 Ch. 734 ; 74 L. J. Ch. 419; 92L. T. 558, 53 W. R. 411 '. 9 Terry, Re, Terry r. Terry, [1918] W. N. 273 ; 87 L. J. Ch. 577 ; 119 L. T. 596 ; 62 Sol. J. 233 . ' 15 Texas Co. v. Bombay Banking Co. (1919), L. R. 46 Ind. App. 250 . .22 Tharp v. Tharp, [1916] 1 Ch. 142; 85 L. J. Ch. 162; 114 L. T. 495; 60 Sol. J. 176 4 Table of Fuether Cases. xiii PAG£ Thomas, Re, Andrew v. Thomas, [1016] 2 Ch. 331 ; 85 L. J. Ch. 519 ; 111 L. T. 885 ; 60 Sol. J. 537 ; 32 T. L. R. 530 9 Thome, Be, Thome v. Campbell-Preston, [10171 ' <"''i- 360 ; 86 L. .J. Cli. 261 ; 116 L. T. 540; 61 Sol. . I. 268 C Timmis, Re, Nixon v. Smith, [1002] 1 Ch. 17(! ; 71 L. J. Ch. 118; 85 L. T. 672; 50 W. R. 164 18 Tod, Re, Bradshaw r. Tiimer, [1916] I Ch. 567 ; 85 L. J. Ch. 6()8 ; 114 L. T. 839 ; 60 Sol. J. 403 ; 32 T. L, R. 344 12 Tringham's Trusts, Re, Tringham v. Greenhill, [1904] 2 Ch. 487 ; 73 L. J. Ch. 693 ; 91 L. T. 370 ; 20 T. L. R. 657 5 Tubbs, Re, Dykes v. Tubbs, [1915] 2 Ch. 137 ; 84 L. J. Ch. 539 ; 113 L. T. 395 ; 59 Sol. J. 508 12 Twigg and Franks v. Mason (1916), 50 Ir. L. T. 173 22 V. Vanneek v. Benham, [1917] 1 Ch. 00 ; 86 L. J. Ch. 7 ; 115 L. T. 588 . . G w. Wakley, Re, Wakley v. Vaehell, [1920] 2 Ch. 205 ; 89 L. J. Ch. 321 ; 123 L.' T. 150 ; 64 Sol. J. 357 ; 35 T. L. R. 325 9 Wareham, Re, Wareham r. Brewin, [1912] 2 Ch. 312 : 81 L. J. Ch. 578 ; 107 L. T. 80 ; 56 Sol. J. 612 U Wellesley v. Withers (1855), 4 EU. & Bl. 750 ; 24 L. J. Q. B. 134 ; 25 L. t. (o. s.) 79 ; 1 Jur. (X. s.) 706; 3C. L. R. 1187 .... 8 ^Aliitbv V. jNIitchell (1890) 44 Ch. D. 85 ; 59 L. J. Ch. 485 ; 62 L. T. 771 ; 38 W. R. 337 3 ^^'hite, /?e, Ingram r. White, [1918] llr. R. 19 15 V, Paine (1914), 83 L. J. K. B. 895 ; 58 Sol. J. 381 ; 30 T. L. R. 347 . 12 Whitfield, Re, [1920] W. N. 256 13 Williams, Re, Jones v. Williams, [1916] 2 Ch. 38 ; 85 L. J. Ch. 498 ; 114 L. T. 992 ; 60 Sol. .J. 495 22 Willis, Re, Crossman v. Kirkaldy, [1917] 1 Ch. 365 ; 86 L. J. Ch. 336 ; 115 L. T. 916 ; 61 Sol. J. 233 o, 7 , Re, Shaw v. Willis, [1920] 2 Ch. 358 ; 64 Sol. J. 600 .. . 17 , Re, V. , [1921] 1 Ch. 44 ; 65 Sol. .J. 43 ; 37 T. L. R. 43 . 17 Wilson, Re, Wilson v. Wilson (1916), 142 L. T. .Jour. 41 .... 1 Woolf, Re, Public Trustee r. Lazarus, [1920] 1 Ch. 184; 89 L. J. Ch. 11 ; 122 L. T. 457 10 Wragg, Re, Wragg v. Palmer, [1919] 2 Ch. 58 ; 88 L. J. Ch. 269 ; 121 L. T. 78; 63SoLJ. 535 10,13,15 Y. Young V. Young (1918), 52 Ir. L. T. 40 1 SUPPLEMENT TO THE SEVENTH EDITION OE UNDERHILL'S LAW OE TEUSTS AND TEUSTEES. Page 18. Note (w). Add: Bee also Be Dunstan, Dunstunw. Dunstan, [1918] 2 Cli. 304 ; but conf. Be Wilson, Wilson v. Wilson (191G), 142 L. T. Jour. 4], where on the construction of the will it was held that the first taker was limited to a life interest only. Note (a). Add : See also Be Booth, Hatter sley v. Cowgill (1917), 86 L. J. Ch. 270, and Be Howell, Liggins v. Bucking- ham, [1915] 1 Ch. 241. Page 19. Note (/). Add : See also Houston v. Bums, [1918] A. C. 337 ; Be Gardom, Le Page v. Att.-Gen., [1914] 1 Ch. 662 ; aff. H. L. {siih nom. Le Page v. Gardom), [1915] W. N. 216 ; Be Bovje, Merchaiit Taylors' Co. v. London Corjjoration (1914), 30 T. L. E. 528 ; Be Moore, Moore v. The Pope, [1919] 1 Jr. E. 316. Page 20. Note (g). Add : Houston v. Burns, snpra. Note (w). Add : But conf. Be Eades, Eades v. Eades, [1920] 2 Ch. 353, where " and " was read " or." Page 21. Note (g). Add : Matthews v. Kieran, [1916] 1 Ir. E. 289. Page 29. Note (u). Add : Sec also Be Humphrey's Estate, [1916] 1 Ir. E. 21. Page 32. Note (/). Add : See also Young v. Young (1918), 52 Ir. L. T. 40. Page 41. Note (r). Add, after ''Paul v. Paul (1882), 20 Ch. I). 742 ", Be Daw, Binney v. Daw (1917), 87 L. J. Ch. 441. Page 44. After line 21. Add new paragraph : On the other hand, where a declaration of trust is relied on, the Court must be satisfied that a present irrevocable declaration of trust has been intended. Thus where entries in pencil had been A 3 2 Supplement to the Seventh Edition of made in accounts kept by A, ^vho Latl appropriated certain moneys of B, which pointed to an intention to charge these mone}' 8 upon a certain house, but which entries were not communicated to B, and appeared to have been altered from time to time, it was held that no charge had been created, the entries pointing rather to intention to create a charge by a deposit of deeds which was never fulfilled ; Be Cozens, Green v. Brisley, [1918] 2 Ch. 478. Page 46. Note (m). Add : See also Be Parry, Ex 'parte Salaman, [1904] 1 KB. 129. After " another," end of third paragraph. Add following new paragraph : There is, however, a real exception to the rule under discussion where the donor dies and makes the intended donee his executor {Strong v. Bird (1874), L. R. 18 Eq. 315 ; Be Pinh, Pink v. Pinh, [1912] 2 Ch. 528), or where he afterwards by inadvertence conveys the property to the donee under circumstances which, apart from the incompleteness of the gift, would raise a resulting trust {Carter v. Hunger jord, [1917] 1 Ch. 260). In both such cases the otherwise imperfect gift will be upheld. Page 49. Note {t). Add : See also Be Cavendish Browne, Rornor v. EaM)Z6, [1916] W.N. 341. Page 52. Note (/). Add : See also Pullan v. Coe, [1913] 1 Ch. 9 ; Be Pryce, Nevill v. Pryce, [1917] 1 Ch. 234. But, of course, if the trust was executed and not executory the rights of such persons would be upheld (see Paul v. Paul (1882), 20 Ch. D. 742, and Be Daw, Binney v. Daw (1917), 87 L. J. Ch. 441). Page 57. Note (e). Add: See also Be Mudge, [1914] 1 Ch. 115, following Be Parsons, StocUey v. Parsons (1890), 45 Ch. D. 51. In considering the question whether the assignment of a mere spes successiones is destroyed by bankruptcy or whether it remains capable of being ordered to be specifically performed it would seem that the latter result will depend upon whether the spes is sufficiently defined. An assign- ment of all spes would be too vague, but an assignment of whatever may accrue to the assignor as one of the next of kin of A, a living person, would remain good {Be Lind, Industrials Finances Syndicate, Ltd. v. Lind, [1915] 2 Ch. 345). Page 62. Note {k). Add i Re Hay garth, Wickliam v. Holmes, [1912] 1 Ch. 510. As to personal estate settled upon trusts corre- sponding with the limitations of real estate, but not to vest absolutely until some person should become adult tenant Underhill's Law of Trusts and Trustees. 3 in tail (without the words " by purchase "), see Be Athinson, Atkinson v. Atkinson, [1916] 1 Ch. 91. Note (m). Add : But see Be Bewick, Byle v. Byle, [1911] 1 Ch. 116, where it was held that a trust for issue living when all the debts are paid was void for remoteness. Page 63. Note (o). For a good example of the difference between vesting and date of distribution, see Be Lndicig, Lofhng v. Evans, [1916] 2 Ch. 26. Note (p). Add : For example of a devise to " A and his children and their children for ever," see W. Gardiner & Coi, Ltd. V. Dessaix, [1915] A. C. 1096 ; and of a trust of income for a voluntary association unlimited in point of time, see Be Sioain, Phillips v. Poole (1908), 99 L. T. 604 ; and of a gift to a club, Be Dnimmond, Ashworth v. Brummond, [1914] 2 Ch. 90 ; and Be Smith, Johnson v. Bright-Smith, [1914] 1 Ch. 937. Page 65. Note (e). Add : This rule is now generally known as the rule in Whithj v. Mitchell (1890), 44 Ch. D. 85. It does not extend to cases where one of the parents is born at the date when the settlement takes effect, but the other is not then ascertainable, and may therefore be unborn ; e.g. a devise in trust for A for life, with remainder to any widow whom he may leave for life, with remainder to their first son in fee {Be Bidhck, Bullock v. Bullock, [1915] 1 Ch. 498, dissenting from Be Park's Settlement, Foran V. Bruce, [1914] 1 Ch. 595, and followed in Be Garnham, Taylor v. Baker, [1916] 2 Ch. 413) ; see also as to the application of the rule to equitable remainders as distin- guished from executory limitations, Be Clarke, Wanklyn V. Streatfield, [1916] 1 Ch. 467. Page 66. Middle of page. Insert : As to the meaning of " portions " in the Thellusson Act, see Be Elliott, Public Trustee v. Pinder, [1918] 2 Ch. 150. Note (c). Add : Be Cattell, Cattell v. Catfell, was affirmed by the C. A., [1914] 1 Ch. 177. 2nd Paragraph ought to read : " It will be perceived therefore that the maximum period allowed for accumulation other than the life of the settlor is either twenty-one years from the death of the testator or settlor, or during the minority or successive minorities of all persons who would, if of full age, be entitled to the income directed to be accumulated. Be Cattell, Cattell v. Cattell, supra." Page 67. Note (h). Add: Be AspinalVs Settled Estates, Aspiiiall V. .4spinall, [1916] 1 Ch. 15. 4 Supplement to the Seventh Edition of Pp. 67-8. Note {i). Add : See also Be Ashto7i, Ballard v. Ashton, [1920] 2 Ch, 481 (gift over if donee Bhonld die imn cotnpos, held void). Page 68. Note (???.). Add : As to income accrued before forfeiture, but not paid over, see Be Jenkins, Williams v. Jenkins, [1915] 1 Ch. 46. Note(g). Add : BeBurronghs-Foivl€r,TrvstecofBnrrovghs' Fowler v. Burroughs-Fowler, [1916] 2 Ch. 251. Note (r). Add : But it is submitted that a man might on marriage settle his own property on an immediate dis- cretionary trust for himself, etc., during his life, as there would then be no alteration of the trust to take effect on bankruptcy. Page 70. Note {a). Add : See Be Homer, Cowlishaw v. Bendell (1916), 86 L. J. Ch. 324. Page 72. Note (m). Add : See also Be Lovell, Sjxirhs v. Sovthall, [1920] 1 Ch. 122. Text, three lines from bottom, after the word " followed." Add : except in Be Hewett, Eldridge v. lies, [1918] 1 Ch. 458, and Be Elliot, Montgomery v. Potterton, [1918] 1 Ir. E. 41. Page 74. Note {x). Add : See Be Bullock, Bullock v. Bvllock, [1915] 1 Ch. 493, and Be Davey, Brisk v. Mitchell, [1915] 1 Ch. 837. Page 77. Note (g). Add : See also Be Daries, Lloyd v. Cardigan County Council [1915] 1 Ch. 543, Page 82. Note (r). Add : See also Be Bonis, Louis v. Treloar (1916), 32 T. L. E. 313. Page 83. Note (s), after Geddis v. Semple, [1903] 1 Ir. E. 73. Add : Be Gardner, Hney v. Cunningion, [1920] 2 Ch. 523. Page 84. Note (w). Add : See also Tharj:) v. Tharjh [1916] 1 Ch. 142. Page 85. Note (b). Add : For another case where a secret trust was communicated to one trustee only but was held to be void, see Le Page v. Gardom, [1915] W. N. 216. Note (c). Add : Conf. Be Gardom, Le Page v. Att.-Gen., [1914] 1 Ch. 662, and in H. L. {sub nom. Le Page v. Gardom), [1915] W. N. 216. Page 97. Paragraph (4) et seq. : It must be understood that the law as to undue influence stated in the text is only true with regard to settlements and gifts inter vii'os. With regard to dispositions by will when once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue Underhill's Law of Trusts and Trustees. 5 influence rests on the person who so alleges {Craig v. Lamoureux, [1920] A. C. 349). Page 101. Note (i). Before Mackintosh v. Pofjosc, interpolate Bankruptcy Act, 1914, s. 42. Note Q). Add : As to the difference between property in w4iich the settlor had, or had not, at the date of the marriage any interest, see Be Bulieel, Bulteel v. ManJey, [1917] 1 Ch. 251, and Doherty v. Power, [1916] 1 Ir. B. 837. Page 102. Note (o). Add : On the other hand, a variation of a marriage settlement without valuable consideration will be void under this section. Be Macdonald, Ex 'parte McCulhm, [1920] 1 K. B. 205 ; 88 L. J. K. B. 122G. Page 104. End of first paragraph, after " apply (n)." Add : A voluntary settlement is not void against the settlor's trustee in bankruptcy from its date, but is only void from the time when his title accrues ; so that if before that time the property comprised in the settlement has been sold bona fide to a purchaser for value the title of the latter will be good {Be Holden, Ex iiartc Official Beceiver (1887), 20 Q. B. D. 43 ; Be Brail, Ex parte Norton (1893), 2 Q. B. 381 ; Be Carter and Kenderdine's Contract, [1897] 1 Ch. 776 ; even although the purchase is subsequent to the act of bankruptcy, Be Hart, Ex parte Green, [1912] 3 K. B. 6, unless, of course, ho has notice of it, Be Schrager (1913), 108 L. T. 346). Page 109. Note (/). Add : See also Pearce v. Bulteel, [1916] 2 Ch. 544. Page 113. Note (a). Add : Pearce v. Btdteel, [1916] 2 Ch. 544. Page 114. Note {b). Add, after Halifax Joint Stock Bank v. Gledhill, [1891] 1 Ch. 31 ; Bee also Be Cozens, Green v. Brisley, [1918] 2 Ch. 478, appropriation by defaulting trustee of securities to make good his breach. Page 119. Note (a). Add : In executed trusts of land the absence of words of limitation will be as fatal to an equitable fee simple as to a legal one where the trust is a simple trust {Be Tringham, Tringham v. Ch'eenhill, [1904] 2 Ch. 487) ; but secus where the intention to pass the fee can ))e found {Be Nutt, McLanghlin v. McLauglilin, [1915] 2 Ch. 431 ; Be Gillies, Archer v. Penney, [1917] 2 Ch. 205 ; Be Willis, Grossman v. Kirkaldy, [1917] 1 Ch. 365 ; Be Colles' Estate, [1917] 1 Ir. R. 260 ; Be Murphy and Griffin's Contract, [1919] 1 Ir. R. 187). 6 Supplement to the Seventh Edition of Page 1^0. Note (e). Add : As to the construction to be placed on an executory trust of heirlooms, see Re Beresford-Hope, Aldenham' v. Beresford-Hope, [1917] 1 Ch. 287, where the form of settlement is indicated. Note (g). Add : But conf. Be Davison, Cattermole Davison v. Munhy, [1913] 2 Ch. 498, where it w-as held that the rule in Shelley's Case did not apply. Page 121. Note (k). Add : See also Be Mountgarret, Mountgarret v. IngiJhy, [1919] 2 Ch. 294. Page 126. Notes (c) and (, [1916] W.N. 341. Page 131. Note (?/). Be Smith, Bohson v. Tidy is reported, [1900] W. N. 75. Page 133. Add to Art. 21, new paragraph after paragraph (4). (5) Probably property substituted for that which she possessed at the date of the marriage {Be Biseoe, Biscoe v. Biscoe, [1914] W. N. 302). Page 134. Note (e). Add : Beatty v. Vance, [1916] 1 Ir. E. 66. Page 136. Note (s). Add : FoUow^ed. Leigh-White v. Bvttledge, [1914] 1 Ir. E. 135. Page 139. Note (h). Add : Be Bland, Bland v. Perkin, [1905] 1 Ch. 4 ; Be Capel, Arhuthnot v. Gallonmy, [1914] W. N. 378. Note {c). Add : But not where there has merely been a decree nisi : Sinclair v. Fell, [1913] 1 Ch. 155. Page 140. Note (e). Add : But see Be Capel, Arhvthnoi v. Galloway, [1914] W. N. 378. Page 144. Add to Art. 25, new paragraph after pp,ragraph (2); (3) Where part of an estate falls under the covenant it must be valued, and where the covenant excludes pictures, yet they will ])e included if ihe-y merely form part of a residuary estate : Vannech v. Benham, [1917] 1 Ch. 60. For a case where chattels were excluded and £1000 was bequeathed to the w^ife to purchase a necklace of diamonds, see Be Thome, Thome v. Camphell- Preston, [1917] 1 Ch. 360. Underhill's Law of Trusts and Trustees. 7 Page 152. Note (p). Add : See Ee Brilish Bed Cross Balkan Fund, Briiish Bed Cross Soviely v. Johnson, [1914] 2 Gli. 419, and Be Customs and Excise Officers' Mutual Guarantee Fu7id, Bobson V. Att.-Gen., [1917] 2 Cli. 18. Page 159. Note (a). Add : But this is not so wliere the remainders are equitable : Be WUlis, Grossman v. Kirkaldy, [1917] 1 Ch. 365 ; followed, Be Conyngliam, Comjngham v. Conymjham, [1920] 2 Ch. 495, where all the cases are examined. This case was heard on appeal in January, 1921, when judgment was reserved. The result Avill probably be reported in the March, 1921, number of the Law Eeports. Page 160. Note (i). Add : foUowed, Be Condrin, Colohan v. Condrin, [1914] 1 Ir. E. 89. Page 166. Note {t). Add : Be Cohen, Cohen v. Cohen, [1915] W. N. 361 ; O'Connor v. Tanner, [1917] A. C. 25. Page 167. Note {u). Add: Be FfennelVs Settlement, Wright v. Holto7i, [1918] 1 Ch. 91 ; Be Lyne, Lyne v. Gihhs, [1919] 1 Ch. 80. As to the effect of a direction to convert money into land on the now obsolete right of the Crown to forfeit the goods of a felon, see Talbot v. Jevers, [1917] 2 Ch. 363. Page 168. Note (c). Add : See also Be Bernard, Bernard v. Jones, [1916] 1 Ch. 552, where there was a good appointment to a daughter by will, and an attempt to settle it on her and her issue by codicil which was void for remoteness. The doctrine is equally applicable whether the fund is be- queathed to a trustee in trust for the legatee and then settled, or whether it is bequeathed du-ectly to the legatee and trusts declared of it {Be Harrison, Hunter v. Bush, [1918] 2 Ch. 59). Page 170. Note (w). Add : But conf. Be Connell, Fair v. Connell, [1915] 1 Ch. 867. Page 172. Note {u). Add : Conf. Be Newbould, Carter v. Newbould (1914), 110 L. T. 6. Page 174. Note (b). Add : See also Be GoswelVs Trusts, [1915] 2 Ch. 106. As to the effect of a trust to convert witlt, the consent oj tlie tenant for Uje, see Be FJenneWs Settlement, Wright V. Holton, [191S]1 Ch. 91. Page 176. Note (/). Add : For other cases of renewals of leases by fiduciary persons, see Smyth v. Byrne, [1914] 1 Ir. E. 53 ; Hahasy v. Guiry, [1917] 1 Ir. E. 371 ; Be Smith (1918), 52 Ir. L. T. 113 ; Kiernan v. MCann, [1920] 1 Ir. E. 99 ; and Brady v. Brady, [1920] 2 Ir. E. 170. 8 Supplement to the Seventh Edition of Page 180. Note(/). Add: As to a constructive trust of a patent where tlio patentee had contracted with his employers that the benefit of all his inventions should belong to them, see British Berujorced Concrete Engineering Co., Ltd. V. Lind [1917], W. N. 38; 8G L. J. Ch." 486. Page 188. Note (/). Add: Conf. Wellesley v. Withers (1855), 4 Ell. & Bl. 750. Page 195. Note (k). Add : See Be Oxleij, John Rornbij and Sons v. Oxleij, [1914] 1 Ch. 604. Page 200. Note ( a forfeiture in such cases {Be Hodgson, Wcsion v. Hodgson, [1913] 1 Ch. 34). Wliere the corpus becomes vested in the same person who has a protected life interest there is no merger {Be Chances' Seftlemenf, Chance v. Billing, [1918] W. N. 34). Page 366. Note (/). Add: See Be Fades, Fades v. Fades, [1920] 2 Ch. 353 ; and Be WilMs, Shaw v. Willis, [1920] 2 Ch. 358, AsTBURY, J., but reversed by C. A., [1921] 1 Ch. 44. Note {g). Add : Conf. Be de Sommery, Coelevhier v. de Sommcry, [1912] 2 Ch. 622. Page 367. Note (fe). Add : But new trustees appointed under the Conveyancing Act, 1881, or, since 1893, under the Trustee Act of that year, could always exercise the powers. Page 370. End of first paragraph, after word " over." Add : Where, however, a testator confides a trust " to my executors," the execution of the trust would seem prima facie to devolve on the executor of the last surviving executor, as the person or persons occupying the position of " executor " is in such cases appointed ex officio as trustee (Farwell on Power, 2nd ed. 93 ; followed by Warrington, J., in unreported case of Be Bragg, 16th October, 1912). But secns in the case of an administration de bonis non. Page 371. Line 7. Substitute "transactions after" for "trustees dying since." Page 372. Six lines from bottom. Add : But it applies to the personal representatives of a trustee who died before that year. Page 376. Lines 7 and 8 from bottom* Strike out the words j "or, where a trustee is a lunatic, by the Lunacy Court," the Lunacy Act, 1911, having transferred the Lunacy Juris- diction to the Chancery Division. 18 Supplement to the Seventh Edition of Page 379. Note (m). Add : Followed, Be Cotter, Jennings v. Nye, [1915] 1 Ch. 307. Page 380. Note (o). Add : Followed, with reluctance, by Neville, J., Re SicheVs Settlements, Sichel v. Sichel, [1916] 1 Ch. 358. Where the Council of a College was the donee of the power and all its functions, were, by Parliament, transferred to the Senate of a University, the latter was held to be incapable of exercising the power {Be SjJencer, Duncan v. Boyal Geological Society (1916), 33 T. L. E. 16 ; and see also Be Marshal BeresforcTs Fund, Aldenham v. Arch- hishoj) of Armagh (1917), 33 T. L. E. 208). Page 381. Note (/). Add : see Be Birchall Birchall v. Ashton (1889), 40 Ch. D. 436. Page 383. Note (c). Add : Be Timmiis, Nixon v. Smith, [1902] 1 Ch. 176 ; and Be de Sommery, Coelerihier v. de Sommery, [1912] 2 Ch. 622. PageB84. Note(/). Add: Be Birchall Birchall v Ashton (1889), 40 Ch. D. 436. Page 389. End of line 18. Add : The Court will not, however, appoint an additional trustee against the wishes of a sole trustee appointed by the settlor, in the absence of allega- tions against his honesty, even at the unanimous request of the beneficiaries in esse : Be Badger, Badger v. Woolley, [1915] W. N. 166, 84 L. J. Ch. 567 ; see Be BendelVs Trusts (1915), 139 L. T. Jour. 249. Page 390. Strike out note (??i), the jurisdiction having been trans- ferred to the Chancery Division by the Lunacy Act, 1911. Page 391 . Line 7 et seq. : This paragi'aph is no longer accurate, and should read thus : The authorities are in a somewhat confused state as to whether before the Trustee Act, 1893, where there were property appointed trustees in existence, and it was impossible otherwise to vest the trust property in them (a case which since the Act could not occur), or where it is desirable to remove one of several trustees and impossible to get any one to serve in his place, the Court could in the one case reappoint all the trustees, or in the other reappoint the continuing trustees and then make a vesting order. The earlier cases decided that it could be done. Then there were a series of decisions that, even if the Court had jurisdiction, it would not exercise it (t). But of late on several occasions vesting orders have been made in two continuing trustees where the third had become of unsound mind or bankrupt, although, as the Court recognised the effect was to remove the trustee by a Underhill's Laav of Trusts and Trustees. 19 side wind (see Be Jessel (1913), J. No. 27, followed by SwiNFEN Eady, J., in Be James (1913), J. No. 2026, neither case reported apparently). The form of order is " that A and B do remain and be trustees in substitution for A, B, and C, a person of unsound mind." Page 892. Line 4 : Substitute Art. 66 for Art. 64. End of line 5. Add : " Prima facie such powers are so incident {Be de Sommery, Coelenhier v. de Sommery, [1912] 2 Ch. 622)." Page 894. Note (()• Add : But if the appointment is made by the donee of the power it will be good [Be Coode, Coode v. Foster (1913), 108 L. T. 94 ; Be Cotter, Jennings v. Nye, [1915] 1 Ch. 307). Page 396. Note (y). Add : As to the effect on the legal estate of a corporation trustee being wound up, see Hastings Corpora- tion V. Letton and Sons, [1908] 1 K. B. 378 ; Be Bomore Boad, [1906] 1 Ch. 359 ; and Be Albert Boad, Norwood, [1916] 1 Ch. 289. But distinguish Be Queensioivn Dry Docks Shipbuilding and Engineering Co., [1918] 1 Ir. E. 356. Page 400. Note (1). Line 11 : For " would be " substitute " would prior to 1912 have been." Page 403. Line 5 from bottom : Substitute " in " for " on." Page 404. Line 9 : Where the lunatic was a mortgagee, but, the money having been repaid, is merely a constructive trustee of the legal estate, the application must still be in Lunacy (Be James' Mortgage Trusts, [1919] 1 Ch. 61 ; Be Haijter's Mortgage Trusts, [1919] W. N. 32). Page 407. End of paragraph 1. Add : For instance of appointment of two banks, each as sole Judicial Trustee of part of the trust estate, see Be Cohen, Cohen v. Cohen, [1918] W, N. 252. Page 411. Note («). Add: The statute only applies to English trusts and the Public Trustee has no power to accept the trusts of a foreign instrument, e.g. a Scottish trust dis- position and settlement (Be HewitVs Settlement, Heicitt v. Hewitt, [1915] 1 Ch. 228 ; but conf. Be ArdagKs Estate, [1914]llr. E. 5). Page 412* Note {g). Add : This includes trusts under which the trustee has to select charitable objects {Be Hamyton, Public Trustee v. Hampton (1918), 63 Sol. J. 68). Note Qi). Since the work was published the Public Trustee Eules have been redrafted, and are now called The Public Trustee Eules, 1912. In this note Eule 6 should be substituted for Eule 7. 20 Supplement to the Seventh Edition of Note (k). Add : The consent to act should be obtained before his appointment (see Be Shaw, Public Trustee v. Little, [1914] W. N. 141). The acceptance must be under his seal {ih., and Public Trustee Eules 1912. Eule 8 (2)). Page 414. The statement of fees payable to the Public Trustee on pages 414-416 are now obsolete, having been cancelled by " The Public Trustee (Fees) Order, 1920." By this order the fees have been largely increased, but as the order takes up ten pages of print the reader is referred to the order itself, which can be obtained from Wyman and Sons, Ltd., the Government printers in Fetter Lane. Suffice it to say, that in the case of ordinary active trusts, the capital fee begins at 1 per cent, for the first £5000, 15s. per cent, for the next £20,000, JOs. per cent, for the next £25,000, 2s. Qd. per cent, for the next £25,000, and Is. Sd. per cent, for any excess over £75,000. The income fees in ordinary trusts begins at 2 per cent, up to £500, and 1 per cent, for anj'- excess over that sum up to £2000, and 10s. per cent, for any excess over £2000. These income fees have to be borne rateably by the several persons entitled to the trust income, and not exclusively by persons entitled to the income of residue. Thus annuitants must bear their share {Be Be/ntley, Public Trustee v. Bentley, [1914] 2 Ch. 456). In addition to these charges, there are management foes payable on investment of trust funds on mortgage, 1 Os. per cent. ; on sale or purchase of stocks and shares, 8s. per cent, in the case of trustee securities, and 6s. per cent, in other cases ; on the sale of land, 10s. per cent. ; on mortgage of the trust property, 10s. per cent. ; on the sale of business, 5 per cent, in respect of good- will , and 1 per cent, for the other assets. Visits by the Public Trustee's representative are also charged for, as also are inspections of land or buildings (not exceeding 5s. per cent, on the gross capital value of the land or building). Further, where rents are collected by an agent a percentage of 5s. per cent, is payable ; and where collected by the Public Trustee himself, such a fee as might have been charged for such collection by an agent, not exceeding the fee charge- able according to the scale for the time being authorised by the Surveyors Institute. Lastly, if the Public Trustee recovers overpaid income tax, he is entitled to a fee not exceeding 10 per cent, on the amount recovered as he may determine in each case. Underhill's Law of Trusts and Trustees. 21 Page 416. Note (o). For last line, substitute Public Trustee Kules, 1912, Rule 6. Page 417. Notes (u) and (x). Substitute Public Trustee Eules, 1912, Rule 8 (2). Note ('//). Substitute Public Trustee Rules, 1912, Rule 8(3). Page 418. Note (c). Add: Be Moxon, [ldi6]2 Ch. 595. Page 419. Art. 74, end of paragraph (2), (c). Add : Be Clierry's Trusts, Bolmison v. Trustees Jor Weslcyan Methodist Chapel Purposes, [1914] 1 Ch. 88. Page 423. Note (s). Substitute : Public Trustee Rules, 1912, Rule 26. Note (t). Substitute: Public Trustee Rules, 1912, V Rule 25. Note (ic). Substitute : Public Trustee Rules, 1912, Rule 16. Page 427. Note (/^). Add : Distinguished by Astbury, J., Be Mackenzie, Bain v. Mackenzie, [1916] 1 Ch. 125. Page 431. Note (r). Add : This was dissented from by the C. A. in Be Oxley, John Hornby and Sons v. Oxley, [1914] 1 Ch. 604. Page 432. Note (c). Add : and a trustee against whom misconduct is alleged unsuccessfully will be allowed the expense of a leading Counsel, although no relief may be asked against him {Bruty v. Edmundson, [1918] 1 Ch. 112). Page 434. Note (s). Add : Followed, Be England, Dohh v. England, [1918] 1 Ch. 24. Page 440. Note (z). Add : But this was dissented from in Be Oxley, John Hornby and Sons v. Oxley, [1914] 1 Ch. 604. Page 443. Note (g). Add : It is unsafe to keep and invest an infant's legacy, as if the investment depreciates the executor will be liable {Be Salomons, Public Trustee v. Worthy, [1920] 1 Ch. 290). Page 444. Note (z). Add : As to when payment into Court is justifiable, see Be Davies' Trusts (1914), 138 L. T. Jour. 162. Page 463. Note (m). Add : See Be Godwi7i, Godwin v. Godwin (1918), 87 L. J. Ch. 645, where a policy was allowed to lapse and the trustees bought consols to answer the loss, but not at a price equal to the surrender value. Held liable for the balance. Page 474. Note (o). Add : Followed, Be Dacre, Whitaker v. Dacre, [1915] 2 Ch. 480; [1916] 1 Ch. 344; but conf. James Boscoe (Bolton), Ltd. v. Winder, [1915] 1 Ch. 62, where 22 Supplement to the Seventh Edition of Be HalUiVs Estate, Knatclihull v. Hallett (1880), 13 Ch. D. 696, was distinguished. Page 477. Note (g). Add : But this does not apply to actions by one beneficiary against another [Tivigg and Franhs v. Mason (1916), 50 Ir. L. T. 173, H. L.). Page 483. Note (o). Add : and so also has a mistaken interpreta- tion of the trust instrument (jRe Allsop, Wkittaker v. Bamjord, [1914] 1 Ch. 1 (C. A.). Page 485. Note (z). Add : The statute must be specially set up before an order for an account is made, otherwise it will not be limited to six years {Be Williams, Jones v. Williams, [1916] 2 Ch. 38). Page 487. Note (e). Add : See also Be Blow, St. Bartholomew's Hospital V. Camhden, [1914] 1 Ch. 233, 243 ; and Be Bichardson, Pole v. Pattenden, [1919] 2 Ch. 50, Peterson, J., and in C. A., [1920] 1 Ch. 423. Page 507. Note {g). Add : For another instance, see Be Hatch, Hatch V. Hatch, [1919] 1 Ch. 351, where an annuity had been paid without deducting income tax, and it was held that the trustees could not deduct the over-payments from subsequent instalments of the annuity. But conf. Be Musgrave, Machell v. Parry, [1916] 2 Ch. 417. Page 511. Note (o). Add: And see also British America Elevator Co. V. Bank of British North America, [1919] A. C. 658. Page 514. Note {%). Add : Be Dacre, Whitaker v. Dacre, [1915] 2 Ch. 480 ; [1916] 1 Ch. 344 ; Be Melton, Milk v. Towers, [1918] 1 Ch. 37 ; and Be JeivelVs Settlement, Watts v. Public Trustee, [1919] 2 Ch. 161. Page 516. Note (t). Add : And also out of future income {Be Musgrave, Machell v. Parry, [1916] 2 Ch. 417). But conf. Be Hatch, Hatch v. Hatch, [1919] 1 Ch. 351. Note {u). Add : But as a general rule a trustee can claim adjustment on his own account where trust property is still in his hands (see Be Beading, Edmands v. Beading, [1916] W. N. 262). Page 517. Note {g). Add : Secus where she was not so restrained, although her assignment .was invalid by reason of non- comphance with Malin's Act {see Be Barrow's Policy Trusts, [1918] 1 Ch. 452). Page 520. Note {y). Add : As to notice, see Texas Co. v. Bombay Banking Co. (1919), L. E. 46 Ind. App. 250. Page 521, On the subject of notice, see also Mackereih v. Wigan Iron and Coal Co., [1916] 2 Ch. 293, where a joint stock company, which made advances to a shareholder whom Underhill's Law of Trusts and Trustees. 23 the directors knew to be a trustee only, was held to be precluded from setting up a lien on the shares, notwith- ■ standing that the company was by its articles not bound to recognise any trust. Page 524. Note (o). Add : This principle has now been extended to sales and conveyances as well as to mortgages (see Be Chafer and BandalVs Contract, [1916] 2 Ch. 8; Be Soden and Alexander's Contract, [1918] 2 Ch. 258). And where a deed recites that A is trustee for himself and B, a purchaser need not go further into the question of how and by what instrument the trust in favour of B arose (ib.). PRINTED IN GREAT HKITAIN hV \MLIilAM CLOWES AND SONS, LIMITED LONDON AND BECCLES. AA