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 ^-1 

 
 UNDERHILL'S LAW OF TRUSTS.
 
 v^^^^"' 
 
 practical an^ Concise flDai^^im ^ 
 
 LAW EELATING TO PBlVA^^ 
 
 ■^o^ 
 
 TRUSTS AND TRUSTEES. 
 
 AETHUE UNDEEHILL, M.A., LL.D., 
 
 OF LlSSrCOLN'S INN, BABRISTER-AT-LAW ; 
 
 Reader of the Law of Real and Persoiud Property in the Inns of Court; Author of " A Treatise 
 
 on the Settled Land Acts," " The Law of Partnership," " A Summary of the Law of Torts," 
 
 etc., and 'joint Author of " Tlnderhill and Strahan's Principles of the Interpretation 
 
 of Wills and Settlements," and Editor of the Fifth Edition of 
 
 " Fisher on Mortgage." 
 
 3fiftb JEMtion. 
 
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 Xaw ftublisbers. 
 
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 SHAW AND SON.S, I'KINTERS, KKTTER LANK AND CRANE COURT, E.C. 

 
 \9 
 
 I 
 
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 .t*^*»i*'loi'- 
 
 THE RIGHT HONOURABLE^ ^^SlDINGE STANLEY 
 
 EARL OF HALSBURY 
 
 LORD HIGH CHANCELLOR OF GREAT BRITAIN 
 
 IS 
 
 BY HIS LORDSHIP S PERMISSION 
 
 MOST RESPECTFULLY DEDICATED. 
 
 a 3
 
 
 \^^^ 
 
 PEE ¥M^\.^<^^\^p^<>^ 
 
 ^ c^^ ...^"CCv^' C'^'^ 
 
 TN writing this ManuaLv^ix has been my 
 -L desire to produce a Tbook bearing the same 
 relation to Mr. Lewin's elaborate treatise as 
 Mr. Hawkins' Work on the Construction of Wills 
 bears to that of Mr. Jaeman ; that is to say, a 
 book of a really practical, but at the same time 
 concise, character. 
 
 The law libraries are rich in great works of 
 reference, the store-houses, so to speak, of the 
 Law ; but they are, in a great measure, 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 
 was 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 prin- 
 ciples of the law with which a practitioner is 
 
 l.T. a 4
 
 Vlll PREFACE. 
 
 conversant. He gets to see that it is sJwrter 
 and simpler than it looJcs, and to understand 
 that the innumerable cases, which at first sight 
 appear to constitute the law, are really no more 
 than illustrations of a comparatively small 
 number of principles." That great lawyer, the 
 late Sir Geoege Jessel, also pointed out that 
 " the only use of authorities or decided cases 
 is the establishment of some principle which the 
 judge can follow out in deciding the case before 
 him" (a). 
 
 Now, in this Work I have endeavoured to 
 extract and formulate the jjrinciples of the law 
 of Private Trusts, and, by way of example, have 
 quoted or referred to all the important modern 
 decisions, and a fair collection of the more 
 ancient ones. Thus the reader is enabled to 
 see, at a glance, the laio {i.e., the ijvinciple) 
 governing any particular point, and then he is 
 further presented with a series of decided cases 
 which prove, illustrate, and explain the appli- 
 cation of that principle. 
 
 I have chosen modern cases 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 froiii time to time — altered, improved 
 
 (n) L. R., 13 Ch. 1). 71-2.
 
 PREFACE. IX 
 
 and refined from time to time. The doctrines 
 are progressive, refined and improved ; and if we 
 want to Txfiow what the rules of Equity are, we 
 must looh rather to the 7)iore modern than the 
 more ancient cases " (&). 
 
 Since the last Edition was issued the 
 Judicial Trustees Act, 1896, has been passed, 
 and its provisions will be found discussed in 
 •Chapter VIII. of Division IV. 
 
 Although the present Edition contains fewer 
 pages than the last, nothing essential has been 
 struck out. The change is due in fact partly to 
 an alteration in the type and size of the page, 
 and partly to increased brevity in the statement 
 of the illustrations. 
 
 For the reasons above stated, it is hoped 
 and believed that this will prove a useful work 
 to practitioners in both branches of the Legal 
 Profession. 
 
 But, in addition to practitioners, there is the 
 large class of students. I do not expect that 
 they will be able to rertiemher all the illustrative 
 cases ; but I am sure that the fact of these being 
 somewhat numerous will not render the Work 
 less useful to them, but will rather tend to 
 elucidate any difficulties which they might feel 
 in the application of the principles which those 
 cases exemplify. A person of ordinary industry 
 
 (h) Per Sir Geo. Jessel, M.R., in Re Hallett, KnatchbuU v. Hallett, 
 L. R., 13 Ch. D., at p. 710. 
 
 a 5
 
 PREFACE. 
 
 and capacity can easily master the eighty-two 
 Ai'ticles of this Work, and may, without great 
 effort, remember the main facts of such of the 
 illustrative cases as are specially named in the 
 body of the text, and are what may be called 
 "leading"; and when he has done so I have 
 no doubt that he will possess such knowledge 
 of the principles upon which the court acts 
 with regard to Private Trusts, as will enable him. 
 to pass his examination wdthout difficulty, and 
 to answer all such questions as occur in the 
 every-day experience of a general practitioner. 
 
 Lastly, I have to thank my friend and 
 colleague, Mr. J. A. Scully, of the Middle 
 Temple, Barrister-at-Law, and Eeader in Equity 
 in the Inns of Court, for Notes on Constructive 
 Trustees, with special reference to Confidential 
 Agents, which he has kindly placed at my 
 disposal, and which have been of great assistance 
 in the preparation of this Edition. 
 
 AETHUK UNDEEHILL. 
 
 5, New Square, 
 
 Lincoln's Inn, W.C. 
 May, 190L
 
 TABLE OF CONTENTS. 
 
 Preface \^" ••• '^^^ 
 
 Table OP Contents 0\<- •■■'<^^- tv^ 
 
 Table OF Cases CITED <-^\^ ••• o n!^^^ •n.O 
 
 Table op Statutes cited ..^^^vSr. .x ^ ... ^ ^^ Ixiii 
 
 
 DIVISION I.-PRELIMrNARY DEFINITIONS. 
 
 Art. page 
 
 1. — Definitions of Trust, Trustee, Trust Property, Beneficiary, 
 
 and Breach of Trust 
 
 2. — Definitions of Legal and Equitaljle Estates 
 
 3. — Definitions of Declared (or Express) and Constructive 
 
 Trusts 
 
 4. — Definitions of Simple and Special Trusts... ... ... 10 
 
 DIVISION II.— DECLARED OR EXPRESS TRUSTS. 
 
 Chaptee I. — Intkoduction. 
 5. — Analysis of a Declared or Express Trust 12 
 
 Chapter II. — Mattees essential to the peima facie 
 Validity of an Expeess Trust. 
 
 6. — Language evincing an intention to create a Trust ... 14 
 
 7.— Of Illusory Tri;sts 24 
 
 8. — How far Valuable Consideration necessary to bind Settlor 
 
 or his Representatives ... ... ... ... ... 27
 
 Xll TABLE OF CONTENTS. 
 
 Art. page 
 
 9. — What Property is capable of being made the subject of a 
 
 Tn;st 39 
 
 10. — The Legality of the expressed object of the Trust ... 43 
 11. — Necessity or otherwise of Writing and Signature 52 
 
 Chapter III. — Validity of Declared Trusts in 
 
 RELATION TO LaTENT MaTTEES. 
 
 12.— Who may be a Settlor 59 
 
 13. — Who may be Beneficiaries ... 62 
 
 14. — When Voidable for Failure of Consideration, Mistake, or 
 
 Fraud 66 
 
 15. — When Void as against Settlor's Creditors under 13 Eliz. 
 
 c. 5 .,, ... ... ... ... ... ... ... 74 
 
 16. — When Void under Bankruptcy Act ... ... ... 85 
 
 17. — When Void as against subsequent Purchasers from 
 
 Settlor 89 
 
 Chapter IV. — The Construction of Declared Trusts. 
 
 18. — Executed Trusts construed strictly, and Executory 
 
 liberally 94 
 
 DIVISION III. -CONSTRUCTIVE TRUSTS. 
 
 Chapter I. — Introduction. 
 
 19. — Analysis of Constructive Trusts 101 
 
 Ciiai'tkr II. — Eesulting Trusts. 
 
 SO. — WIhtc Kijuitablc Interest not wliolly disposed of ... 103 
 
 21. — llesulting Trusts, where Tiu-sts declared are Illegal ... 108 
 
 22. — Resulting Trusts, where Purchase made in Another's Name 113 
 
 23. — To whom Pro])erty results ... ... ... ... ... 119
 
 TABLE OF CONTENTS. Xlll 
 
 Chapter III. — Constructive Trusts which are 
 
 NOT EeSULTING. 
 
 Art. page 
 
 .24. — Constructive Trusts of Profits made by Persons in 
 
 Fiduciary Positions 12^) 
 
 25. — Constructive Trusts where Equitable and Legal Estates 
 
 are not united in the same Person ... ... ... 128 
 
 DIVISION IV.— THE ADMINISTRATION OF A TRUST. 
 
 Chapter I. — Disclaimer and Acceptance of Trusts. 
 
 26.— Disclaimer of a Trust 134 
 
 27. — Acceptance of a Trust 136 
 
 Chapter II. — The Estate of the Trustee, and 
 ITS Incidents. 
 
 28. — Cases in which the Trustee takes any Estate ... ... 139 
 
 29. — The Quantity of Estate taken by the Trustee of Lands ... 143 
 
 30.— Bankruptcy of the Trustee 149 
 
 31. — The Incidents of the Trustees's Estate at Law ... ... 150 
 
 32. — Trustee's Estate on total Failure of Beneficiaries ... 152 
 
 Chapter III. — The Trustee's Duties. 
 
 33. — Duty of Trustee on acceptance of Trust ... ... ... 154 
 
 34. — Duty of Trustee to obey the Directions of the Settle- 
 ment ... ... ... ... ... ... ... 156 
 
 35. — Duty of Trustee to act impartially between the Bene- 
 ficiaries ... ... ... ... ., ... ... 160 
 
 36. — Duty of Trustee to sell Wasting and Reversionary Pro- 
 perty ... .., ... ... ... ... ... 165 
 
 37. — Duty of Trustee, as between Tenant for Life and Re- 
 mainderman in relation to Property pending Conver- 
 sion which ought to be converted, where conversion is 
 delayed ... ... ... ... ... 170 
 
 38. — Duty of Trustee in relation to the jjayment of Outgoings 
 
 oiit of Corpus and Licome respectively .. . ... ... 178
 
 XIV TABLE OF CONTENTS. 
 
 Art. page 
 
 39. — Duty of Trustee to exercise reasonable Care 188 
 
 40. — Duty of Trustee in relation to the Investment of Trust 
 
 Funds 200 
 
 41.— Duty of Trustee to see that he pays Trust Moneys to the 
 
 right Persons 217 
 
 42. — Duty of Trustee not to delegate his Duties or Powers ... 220 
 
 43. — Duty of Trustees to act jointly where more than one ... 234 
 
 44. — Duty of Trustee not to set up jus tertii 238 
 
 45. — Duty of Trustee to act gratuitously 240 
 
 46. — Duty of Trustee not to traffic with or otherwise profit by 
 
 Trust Property 243 
 
 47. — Duty of Trustee to be ready with his Accounts 252 
 
 Chapter IV. — The Powers of the Trustee. 
 
 48. — General Powers of Trustees 256 
 
 49. — Power of Trustees in relation to the conduct of Sales ... 264 
 
 50. — Power of Trustees to give Receipts 266 
 
 51. — Power to compound and to settle Disputes ... ... 267 
 
 52.- — Power to allow Maintenance to Infants 269 
 
 53. — Power of Trustees to pay to Attorney appointed by 
 
 Beneficiary... ... ... ... ... ... ... 271 
 
 54. — Suspension of the Trustee's Pov,"ers by Administration 
 
 Action 272 
 
 Chapter V. — Power of the Beneficiaries. 
 
 55. — Power of the Beneficiaries in a Simple Trust 275 
 
 56. — Power of ihe Beneficiaries collectively in a Special Trust : 276 
 57. — Power of one of several Beneficiaries partially interested 
 
 in a Special Trust 280 
 
 Chapter YI. — The Death, Eetirement, or Removal of 
 A Trustee, and the effect thereof in Eelation 
 to the Office of Trustee. 
 
 58.— Survivorsliip of the Office and Estate 284 
 
 59. — Devolution of tlie Ollice and Estate (jh Di'utli dt' tlie 
 
 Survivor 285 
 
 60. — Retirement or JifUKival iif a Trustee 290 
 
 61. — Appoiiitiiii'iit of new 'I'rustces ... ... ... ... 294 
 
 (i2. ^Vesting of Tiust Projicrty in new 'I'rustees ... ... ;309 
 
 63. — Severance of 'I'rust on a]i|)iiintm<'nt nf new 'I'rustees ... '.i\'.)
 
 TABLE OF CONTENTS. XV 
 
 Chapter VII. — The Eights of Trustees. 
 
 Art. page 
 
 G4. — Riglit to Reimbursement and Indemnity ... ... ... 320 
 
 65.— Right to Discharge 328 
 
 66. — Right to take Direction of a Judge 330 
 
 67. — Right t( pay Trust Funds into Court under certain Cir- 
 
 cui.-oCances ... ... ... ... ... ... ... 331 
 
 68. — Right under certain Circumstances to have the Trust 
 
 administered by the Court 334 
 
 Chapter VIII. — Appointment of a Judicial Trustee. 
 69. — Power of Court to appoint ... ... ... 338 
 
 DIVISION v.— THE CONSEQUENCES OF A BREACH 
 OF TRUST. 
 
 Chapter I. — The Liability of the Trustees. 
 
 70. — The Measure of the Trustee's Responsibility ... ... 341 
 
 71. — The Liability, Joint and Several 348 
 
 72. — No Set-off allowed of Gain on one Breach against Loss on 
 
 another 34!) 
 
 73. — Property acquired either wholly or partly out of Trust 
 
 Property becomes liable to the Trust 351 
 
 74. — Any of the Beneficiaries may compel Performance of a 
 
 neglected Duty, or prevent the Commission of Breach : 356 
 
 75. — Fraudulent Breach of Trust is a Crime 358 
 
 Chapter II. — Protection accorded to Trustees in 
 Case of Breach of Trust. 
 
 76. — General Protection where they have acted Reasonably and 
 
 Honestly 359 
 
 77. — Statute of Limitations 362 
 
 78. — Protection against the Acts of Co-Trustee 367 
 
 79. — Concurrence of or Release by the Beneficiaries 3C9
 
 XVI TABLE OF CONTEXTS. 
 
 Art. page 
 
 80. — Trustees generally entitled to Contribution inter se, but 
 may be entitled to be Indemnified by Co- Trustee or 
 Beneficiary who instigated Breach 374 
 
 Chapter III. — Liability op Third Parties and 
 Beneficiaries. 
 
 81. — Liability of Third Parties or Beneficiaries who are 
 
 Parties to a Breach of Trust 382 
 
 82. — Following Trust Property into the Hands of Third 
 
 Parties 390 
 
 INDEX.
 
 TABLE OF CASES CITED. 
 
 A. 
 
 PAGE 
 
 Abbott's Trust, Re, Smith v. Abbott, [1900] 2 Ch. 32() 105 
 
 Aberaman Ironworks v. Wickens, 4 Ch. App. 101 ... 132 
 
 Aberdeen Kail. Co. v. Blackie, 1 Macq. 461 127 
 
 Town Council v. Aberdeen University, 2 App. Cas. 544 ; 243, 248 
 
 Ackland v. Lutlev, 9 A. & E. 879 ; 8 L. J. Q. B. 164 ... 143, 147 
 
 Ackroyd v. Smithson. 1 Bro. C. C. 503 103, 107, 120, 121 
 
 Acton V. Woodgate, 2 My. & K. 495 ; 3 L. J. Ch. 83 ; 39 R. R. 251 : 2.-> 
 
 Adames v. Hallett, 6 Eq. 468 79 
 
 Adams, i?e, 12 Ch. D. 634 291,297.304 
 
 Re, Adams r. Adams, [1893] 1 Ch. 329 ; 62 L. J. Ch. 266 ; 
 
 68L. T. 376 270,271 
 
 , Re,&m\ Perry, 68 L. J. Ch. 259 ; 47 W. R. 326 ; SO L. T. 149 : 141 
 
 , Re. and Kensington Vestry, 27 Ch. D. 394; 32 W. R. 883 : 15, 18, 22 
 
 r. Clifton, 1 liuss. 297 220 
 
 Addlington r. Cann, 3 Atk. 141 53,113 
 
 Agar r. George, 2 Ch. D. 706 ; 24 W. R. 696 ; 34 L. T. 487 ... 20 
 
 Akerman, Re, Akerman r. Akerman, [1891] 3 Ch. 212 ; 61 L. J, Ch. 
 
 34; 65 L. T. 194 ; 40 W. R. 12 386—389 
 
 Akeroyd, Re, Roberts v. Akeroyd ... 105 
 
 Alcock V. Sloper, 2 My. & K. 697 ; 39 R. R. 334 168 
 
 Alexander r. Duke of Wellington, 2 Russ. & M. 35 ; 34 R. R. 1 .'.. 43 
 
 Alford, Re, Hunt r. Parry, 32 Ch. D. 382 262 
 
 Allan, Re, Havelock v. Havelock, 17 Ch. D. 807 ; 29 W. R. 859 ; 
 
 44 L. T. 168 262 
 
 Allcard ?•. Skinner, 36 Ch. D. 145 ; 36 W. R. 251 ; 56 L. J. Ch. 
 
 1052 66,68,71,74 
 
 V. Walker. [1896] 2 Ch. 369 ; 65 L. J. Ch. 660 ; 74 L. T. 
 
 487 ; 44 W. R. 66 38S 
 
 Allen, Re, Havelock v. Havelock-AUan, 12 T. L. R. 299 193 
 
 f. Bewsey, 7 Ch. D. 453 ; 37 L. T. 688 40,43 
 
 V. Jackson, 1 Ch. D. 399 ; 24 W. R. 306 ; 45 L. J. Ch. 310 ; 
 
 33L. T. 713 44, .50, 52 
 
 r. Seckham, 11 Ch. D. 795 ; 48L. J. Ch. 611 397 
 
 Allhusen r. Whittell, 4 Eq. 295 ; 36 L. J. Ch. 929 ; 16 L. T. 695 ... 180 
 
 Alsbury, Re. Sugden r. Alsburv, 45 Ch. D. 237 162 
 
 Alton V. Harrison, 4 Ch. App. 622 ; 17 W. R. 1034 ; 20 L. T. 1001 : 84 
 
 Alwyn, Re, 16 Eq. 585 48 
 
 Ambler, Re, 59 L. T. 206 29!t 
 
 Ames, Re, Ames v. Taylor, 25 Ch. D. 72 ; 32 W. R. 287 241 
 
 1-. Parkinson, 7 Beav. 379 201 
 
 Ancketill, Re. 27 L. R. Jr. 331 17S 
 
 Anderson r. Elsworth, 3 Giff. 154 66 
 
 Andrews, Re, 7 Ch. 1). 635 ; 26 W. R. 572 ; 38 L. T. 137 85 
 
 r. Weall, 37 W. R. 779 179
 
 XVIU TABLE OF CASES. 
 
 PAGE 
 
 Angibau, ^^ 1.) Ch. D. 222 28 
 
 Anon, 8 W. K. 338 ; 2 L. T. 71 187 
 
 , 6Madd. 11 195,358 
 
 . Cora. Rep. i'S 391 
 
 Anstis. Be. Chetwvnd r. Morgan, 31 Ch. D. 6u6 28. 29, 38 
 
 Antrobus ;■. Smith" 12 Ves. 39 ; 8 R. R. 278 28. 36 
 
 Arbuthnot r. Norton, 5 Moo. P. C. C. 219 -13 
 
 Armitage, i?r, Armitage r. Garnett. [1893] 3 Ch. 337 163 
 
 Armstrong r. Reeves, 25 L. R. Ir. 32.") 65 
 
 r. Timperon. W. N. (1871), p. 4 35 
 
 Arnold r. Chapman. 1 Ves. sen. 108 ... ... ... 113 
 
 r. Gamer, 2 Ph. 231 130 
 
 Amould r. Grinstead. 21 W. R. 155 207 
 
 Ashby ;■. Blackwell. 2 Eden, .302 217.218 
 
 r. Costin. 21 Q. B. D. 401 34,39 
 
 Assets, etc. Co. (-.Trustees, etc. Coi-poration. 65 L. J. Ch. 74 ; 44 W. R. 
 
 126 ' 291 
 
 Astlev i: Milles. 1 Sim. 298 : 27 R. R. 190 131 
 
 Aston, Be, 23 Ch. D. 217 • 295 
 
 Atkins. lie. Xewman i: Sinclair. 81 L. T. 421 258 
 
 Atkinson r. Atkinson. 62 L. T. 735 23 
 
 Att.-Gen. r. Alford, 4 De G. M. & G. 851 ; 19 Jur. (x.S.) 361 ; 
 
 24 L. T. 265 ; 3 W. R. 200 341, 342. 34.5. 346 
 
 r. Aspinal. 2 My. & Cr. 613 : 7 L. J. (N.s.) Ch. 51 : 45 R. R. 
 
 142 60 
 
 V. Daugars, 33 Beav. 624 874 
 
 r. Downing, Arab. 552 ... ... ... ... ... 19 
 
 r. (Lady), Wils. 21, 22 19 
 
 f. Gore. Barn. 150 ... ... ... ... ... ... 27.5 
 
 r. Gower. 2 Eq. Ca. Abr. 685. pi. 11 391 
 
 r. .Jacobs-Smith. [189.51 2 Q. B. 341 ; 64 L. J. Q. B. 609... 31 
 
 r. Murdoch. 2 K. & J. 571 328 
 
 r. Owen, 10 Ves. 560 260 
 
 r. Sands, Hard. 491 43 
 
 r. Scott. 1 Ves. sen. 413 225 
 
 r. Stephens. 3 Mv. & K. 347 19 
 
 V. Wilson, Cr. &"Ph. 28 ; 47 R. R. 173 348, 374 
 
 Austen, ^f, 38 L. T. 601 307 
 
 r. Taylor, 1 Eden, 366 94.96 
 
 Austin V. Austin, 4 Ch. D. 233 ; 25 W. R. 346 : 46 L. J. Ch. 92 ; 
 
 36 L. T. 96 256 
 
 Aveline r. Melhuish, 2 D. .1. & S. 288 ; 12 W. R. 1020 ; 10 Jur. (x.s.) 
 
 788 369 
 
 Ayeling r. Knipe, 19 Ves. 441 ; 13 R. R. 240 115 
 
 Avery v. Griffin. 6 Eq. (!07 ; 18 L. T. 849 308 
 
 Ayerst r. .lenkiiis, 16 Eq. 283 ; 21 W. R. 878 ; 29 L. T. 126 • 109, 111 
 
 Ayliffe /•. Murray. 2 Atk. 58 240 
 
 Ayhviu'.s Trusts," lie, 16 Eq. 585 ; 21 W. R. 864 ; 28 L. T. 865 ... 281 
 
 B. 
 
 Unckhouse 7'. Backhouse. Lew. 678 ... ... ... ... ... 19 
 
 Bucon, J{r, (irisscll /•. Lcathcs, CH L. T, 522: 62 L. .1. Cli. 247 ; 
 
 (IS L. T. 155 ; 41 W. K. 47S iSd 
 
 Baddcrh-y r. BuddiTJcv, 9 Ch. I). 1 1 3 ; 26 W. R. 850 ; 38 L. T. 906 : 36. 38 
 
 Bnpiinll r. Carlton. 6 ('h. 1). 371 ; 36 L. T. 7.50 127 
 
 linKot, 7/r, [isyj] 1 Ch. 177 2Ml,282
 
 TABLE OF CASES. XIX 
 
 PAfiE 
 
 Bagshaw i\ Spencer, 1 Ves. 144... ... ... ... 147 
 
 Bahin v. Hughes, 81 Ch. D. 390 ; 55 L. J. Ch. 472 ; 54 L. T. 188 ... 375, 
 
 377 378 
 
 Bailey v. Gould, 4 You. .t Coll. Ex. 221 ' 198 
 
 Bainbrigge r. Browne, IS Ch. D. 188 ; 29 W. K. 782 ; 50 L. J. Ch. 
 
 522 ; 44 L. T. 705 72 
 
 Baker r. Monk, 33 Beav. 719 70 
 
 f. Peck, 9 W. K. 472 248 
 
 r. White, 1 Bing. N. C. 573; 20 Eq. 16G ; 44 L. J. Ch. 651 ; 
 
 23 W. K. 070 ; 33 L. T. 347 140,142 
 
 Baldwin r. Bannister, cited in Robinson r. Pett, 3 P. Wm. 251 ... 130 
 Bank of Australasia v. Murray- Aynsley, [1898] A. C. 693 ; 67 L. J, 
 
 P. C. 123 393 
 
 Barber, E/', 39 Ch. D. 187 317 
 
 Barclay, Ee, Barclay r. Andrew, [1899] 1 Ch. 674 ; 68 L. J. Ch. 383 ; 
 
 SOL. T. 702 342—344 
 
 r. Owen, 60 L. T. 220 164 
 
 Baring, Ee, Jeune r. Baring, [1893] 1 Ch. 61 ; 62 L. .J. Ch. 50 ; 
 
 67L. T. 702; 41 W. R. 87 179,186 
 
 Barker, ^^^wr<<;, 28 W. R. 522; 42 L.T. 411 351 
 
 , Ee, 1 Ch. D. 43 ; 24 W. R. 264 ; 45 L. J. Ch. 52 ... 291, 297 
 
 Ee, Ravenshaw r. Barker, 77 L. T. 712 ; 46 W. R. 296 ... 350, 
 
 359, 360 
 
 r. Greenwood, 4 M. & W. 429 ; 8 L. J. Ex. 5 140 
 
 r. Peile, 2 Dr. & S. 340 ; 13 W. R. 573 ; 12 L. T. 50 : 293, 337 
 
 Barlow v. Grant, 1 Vern. 255 ... ... 262 
 
 ... 237 
 
 133, 198, 384 
 
 387 
 
 133, 382, 384 
 
 J. Ch. 
 
 ... 75 
 ... 218 
 
 Barnard v. Bagshawe, 3 De G. J. & S. 355 
 
 Barnes r. Addy, 9 Ch. App. 244 
 
 Barnett v. ISheffield, 1 De G. M. & G. 371 
 
 Barney, Ee, Barney v. Barney, [1892] 2 Ch. 265 
 
 Barrack t: McCuUock, 3 Kay & J. 110 ; 5 W. R. 38 ; 26 L 
 
 105 ; 28 L. T. 218 
 
 Barratt r. Wyatt, 30 Beav. 442 
 
 Barrett, Ee, Whitaker r. Barrett, 43 Ch. D. 70 ; 59 L. J. Ch. 218 ; 
 
 38W. R. 57 274 
 
 V. Hartley, 12 Jur. (N.S.) 426 ; 14 W. R. 684 ; 14 L. T. 474 : 
 
 240, 242 
 
 Ban-on ■!•. Willis, [1900] 2 Ch. 121 72,251 
 
 Barrow r. Wadkin, 24 Beav. 1 ; 5 W. R. 695 ; 3 Jur. (N.S.) 679 ... 62 
 
 Barrs ■?;. Fewkes, 2 Hem. & M. 60 104 
 
 Barry, Mr jmrte, 17 Eq. 113 ; 22 W. R. 205 149 
 
 Barton, iZ<^, 5 Eq. 238 160 
 
 'V. Briscoe, Jac. 603 277 
 
 Basham, Ee, Hannay r. Basham, 23 Ch. D. 195 328 
 
 Bassett r. Nosworthy. 2 W. & T. L. C. 150 ; Finch, 102 391 
 
 Bastard r. Proby, 2 Cox, 6 98 
 
 Bate r. Hooper. 5 De G. M. & G. 338 388 
 
 Bateley i. Windle, 2 Bro. C. C. 31 104 
 
 Bateman r. Davis, 3 Madd. 98 ; 18 R. R. 200 158 
 
 y. Hotchkin, 10 Beav. 426 45 
 
 Batho, Ee, 39 Ch. D. 189 ; 58 L. J. Ch. 32 ; 59 L. T. 882 ... 305, 315 
 
 Bathurst, Ee. 2 Sm. & G. 169 295 
 
 Batstone r. Salter, 10 Ch. App. 431 115 
 
 Beale r. Symonds, 16 Beav. 406... ... ... ... ... .•• 153 
 
 Beattie r. Curzon, 7 Eq. 194 ; 17 W. R. 132 ; 38 L. J. Ch. 161 j 
 
 20L. T. 61 334 
 
 Beauclerc, Ee, 11 W. R. 203 332 
 
 r. Ashbuxnham, 8 Beav. 322 209 
 
 Beaufoy, Ee, 1 Sm. & Gift". 20 169 
 
 h 2
 
 XX TABLE OF CASES. 
 
 PAGE 
 
 Beaumont v. Salisbury (Marquis), 19 Beav. 198 1-13, 145 
 
 Beck V. Kantorowiez, 3 Kay >k; J. 230 ... ... 127 
 
 Beckford r. Beckford, Lofft. ■190 114,119 
 
 r. Wade. 17 Ves. 97 ; 11 R. K. 20 366 
 
 Beckley r. Newland, 2 P. Wms. 182 41 
 
 Beetive (Lord) v. Hodgson, 10 H. L. Cas. 6.56 ; 12 W. R. G25 : 122, 271 
 
 Beddoes r. Pugh, 26 Beav. 407 239,240,32.5 
 
 Bedford (Duke) v. Abercorn (Marquis), 1 My. & Cr. 312 ; 5 L. J. 
 
 (N.s.) Ch. 230 ; 43 R. R. 200 97 
 
 r. Coke, 2 Ves. sen. 116 109 
 
 Bedillon v. Seaton, 3 Wall. jun. 279 56 
 
 Beecher f. Major, 2 Dr. & Sm. 431 119 
 
 Begbie r. Crook, 2 Bing. N. C. 70 135 
 
 Behrens, He, W. X. (1888), p. 95 331 
 
 Belchier, Mi; jnirfe, Amb. 219 221, 225, 227, 231, 233, 236 
 
 Bell, Be, Jeffery r. Sayles, 65 L. J. Ch. 188 ; 73 L. T. 391 ; 44 W. R. 
 
 99 280 
 . iZf, Lake r. Bell, 34"ch. D.462 !!! '.'.'. .'.'.' '.'.'. 132,366 
 
 r. Barnett, 21 W. R. 119 127 
 
 r. Cureton, 2 My. & K. 511 25 
 
 r. Turner, 47 L. J. Ch. 75 328 
 
 Bellamy and Metropolitan Board, Re, 24 Ch. D. 387 ; 31 W. R. 900 : 
 
 48L. T. 801 220,228 
 
 Bellasis, Be, 12 Eq. 218 ; 19 W. R. 699 ; 24 L. T. 466 35 
 
 Bellinger, Be, Durell r. Bellinger. [189SJ 2 Ch. 534 ; 67 L. J. 
 
 Ch. .580 : 79 L. T. 54 ... ' 261 
 
 Belliss, Be, 5 Ch. D. 594 ; 25 W. R. 456 ; 46 L. J. Ch. 353 ; 36 L. T. 
 
 644 288 
 
 Benbow v. Townsend. 1 My. & K. 506 ; 2 L. J. Ch. 215 ; 36 R. R. 
 
 359 52,108 
 
 Bence, Be. Smith r. Bence, [1891] 3 Ch. 242 44 
 
 r. (iilpin, L. R. 3 Ex. 76 ; 16 W. R. 705 ; 37 L. J, Ex. 36 ; 
 
 17L. T. 6.55 137 
 
 Bendyshe, Be, 3 Jur. (jf.S.) 727 ; 5 W. R. 816 261, 333 
 
 Beningfield r. Baxter, 12 App. Cas. 167 247 
 
 Benn c. Dixon, 10 Sim. 636 ... 166 
 
 Bennet r. Bennet, 10 Ch. 1). 474 118,119 
 
 Bennett, L'x parte, 10 Ves. 393 ; 8 R. R. 1 244, 249, 250 
 
 r. Colley, 5 Sim. 192 ; 2 My. & K. 225 ; 35 R. R. 135 ... 357 
 
 '•. Davis, 2 P. Wms. 216 19,150 
 
 r. (ias Light and Coke Co., 52 L. J, Ch. 98 ; 48 L. T. 156 : 245 
 
 V. Wyndhani, 4 De G. & J. 257 221,321 
 
 Bennison, Jfe, Cutler r. Boyd, 60 L. T. 859 159 
 
 Ikiithani r. llaincourt, Pr. Ch. 30 130 
 
 IJcnyon r. Nettlel'old, 3 Man. & G. 102 110 
 
 Ik-rkcley (Earl), J{e, 10 Ch. App. 56 187 
 
 Berry r. J'.erry, 7 Ch. D. 657 ; 47 L. J. Ch. 182 : 26 AV. R. 327 ... 147 
 
 r. Gibbons, 8 Ch. App. 747 ; 21 W. R. 754 ; 29 L. T. 88 : 272, 273 
 
 Bethell v. Abniiiam, 17 E(i. 24, />er Jessel, M.R. ; 22 W. R. 179 ; 
 
 43 L. J. Ch. 180 ; 29 L. T. 715 207, 2(t8, 273 
 
 IJetjemann r. Hetjemaini, [1895] 2 Ch. 474 12;»,252 
 
 Hetty, Br, [1899] 1 Ch. 821; iiH L. J. Ch. 435; 80 L. T. 675 : 179, 
 
 ISl, 185 
 
 Bcvan, y/r, 31 Ch. I). 716 46 
 
 niddulph r. Williams, 1 Cii. 1). 203 104 
 
 I'.iggH r. JVucock, 22 Ch. D. 284 278 
 
 Bignold, Br, 7 Ch. App. 223; 26 L. T. 176; 41 L. J. Ch. 235 ; 
 
 2I\V. H.3I5 291,297,300,304
 
 TABLE OF CASES. XXI 
 
 PAGE 
 
 Billingsley r. Critchett, 1 B. C. C. 268 2«2 
 
 Billson V. Crofts, If. Eq. 314 ; 21 W. R. 504 ; 42 L. J. Ch. 531 48, 281 
 
 Bindley r. MuUoney, 7 Eq. 843 ; 17 W. R. 510 ; 20 L. T. 283 ... .50 
 
 Bingham r. Clanmorris, 2 Moll. 253 ... ... ... 135 
 
 Binneyr. InceHall Co., 35L.J. Ch. 363 234,236 
 
 Birch r. Blagrave, Amb. 264 109,112,115 
 
 r. Wade, 3 V. & B. 108 : 13 R. R. 181 22 
 
 Birchall, Fc, Birchall r. Ashton, 40 Ch. D. 436 ; 37 W. R. 387 ; 
 
 60L. T. 369 135,136 
 
 Bird, JRe, 16 Eq. 203 ; 3 Ch. D. 214 ; 21 W. R. 725 ; 28 L. T. 658 : 143, 
 
 228 
 
 , ^<", Pitman V. Pitrean, [ 1892] 1 Ch. 279 124 
 
 r. Maybery, 33 Beav. 351 ... ... 23 
 
 Birks V. Micklethwait, 33 Beav. 409 ; 34 L. J. Ch. 362 ; 10 Jur. (N.s.) 
 
 302 323,374 
 
 Birtr. Birt, 11 Ch. D. 772 3.52 
 
 Bishop, Exixirte, 8 Ch. App. 718 ; 21 W. R. 716 ; 28 L. T. 862 ...85, 87 
 
 Bizzey r. Flight, 24 W. R. 957 ... : 32,34 
 
 Blackburn r. Stables, 2 V. & B. 367 ; 13 R. R. 120 98 
 
 Blacklow V. Laws. 2 Hare, 40 159 
 
 Bladwell r. Edwards, Cro. Eliz. .509 44,49 
 
 Blagrave r. Blagrave, 4 Ex. 5.50 ; 19 L. J. Ex. 414 146 
 
 Blagrove r. Handcock, 18 Sim. 378 ... ... ... 100 
 
 Blake, Re, W. N. (1887), p. 173 ; 60 L. T. 663 108, 297 
 
 , lie, Jones v. Blake, 29 Ch. D, 913 256, 258, 334, 335 
 
 r. Power, 37 W. R. 461 70 
 
 Blakeley Co., Be, 3 Ch. App. 154 ; 16 W. R. 533 ; 37 L. J. Ch. 418 : 
 
 18L. T. 132 391 
 
 Blaker v. Anscombe, 1 Bos. & P. N. R. 25 ; 8 R. R. 746 143 
 
 Blandy r. De Bm-gh, 6 C. B. 634 29 
 
 Bleazard 1'. Whalley, 2 Eq. Rep. 1093; 2 W. R. 60S 261 
 
 Blount V. O'Connor, 17 L. R. Ir. 620 207 
 
 Blue V. Marshall, 3 P. W. 381 191 
 
 Blundell, Ee, Blundell v. Blundell, 44 Ch, D. 1 ; 40 Ch. D., p. 370 : 
 
 133, 323, 349, 384, 393 
 
 Blythr. Fladgate, [1891] 1 Ch. 337 348,375,382,385 
 
 Bodmin (Lady) r. Vanderbendy, 1 Vern. 179 391 
 
 Boldero v. London and Westminster Discount Co., 5 Ex. D. 47 ; 
 
 28 W. R. 154 ; 42 L. T. .57 84 
 
 Bolland, E.c parte, Clint, Re, 17 Eq. 115 ; 22 W. R. 152 ; 43 L. J. Bk. 
 
 16;29L. T. 545 81 
 
 Bolton f. Curre, [1895] 1 Ch. 544 ; 64 L. J. Ch. 164 ; 71 L. T. 752 ; 
 
 43W. R. 521 381,383 
 
 Bond V. Walford, 32 Ch. D. 238 66,69 
 
 Bone 1J. Pollard, 24 Beav. 285 114,117 
 
 Booth V. Turle, 16 Eq. 182 ; 21 W. R. 721 58, 133 
 
 Bostock r. Floyer, 1 Ch. App. 26 ; 1 Eq. 29 ; 14 W. R. 120 ; 
 
 35 L.J. Ch. 23 ; 13 L. T. 489 ; 11 Jur. (N.s.) 962 ... 218, 228 
 
 Bosworth, Re, Martin v. Lambe, 58 L. J. Ch. 432 253, 255 
 
 Bouch, Re, Sproule r. Bouch, 12 App. Cas. 385 ; 36 W. R. 193 : 
 
 160—162 
 
 Boughton ?•. James, 1 Coll. 26 -t7 
 
 Bourke, i?^', 2 D. J. & S. 426 316 
 
 Boursot V. Savage, 2 Eq. 134 ; 35 L. J. Ch. 627 ; 14 W. R. 565 ; 
 
 14L. T. 299 391,395 
 
 Bowden, Re, Andrew v. Cooper, 45 Ch. 1). 444 ; 59 L. J. Ch. 815 ; 
 
 39W. R. 219 363 
 
 Bowen v. PhiUips, [1897] 1 Ch. 174 357
 
 XXll TABLE OF CASES. 
 
 PAGE 
 
 Bowes r. East London Water Co., Jac. 324 2.}6, 260 
 
 1-. Strathmore (Earl). 8 Jur. 92 261 
 
 Bowles c Stewart, 1 Sch. & Lef. 226 370 
 
 Boyd, Re, U Ch. D. 626 ; 28 W. K. 233 ; 42 L. J. Ch. .506 213 
 
 v. Boyd, i Eq. 30.5 ; 15 W. 11. 107 ; 16 L. T. 660 262 
 
 Boyes, ^P, Boyes c. Carritt, 26 Ch. D. 531 53.54,107 
 
 Bovle, i?^', 1 M. & G. 495 249 
 
 Brakenbury r. Brackenbury, 2 J. & W, 391 ; 22 E. R. 180 109 
 
 Bradford Bank r. Briggs, 12 App. Cas. 27 ; 35 W. R. 521 ; 56L. J. Ch. 
 
 364 ; 56 L. T. 62 236 
 
 Bradley v. Riches, 9 Ch. D. 189 ; 26 W. R. 910 ; 38 L. T. 810 ... 395 
 Brail, Re, E.r jyarte Norton, [1893] 2 Q. B. 381 ; 62 L. J. Q. B. 457 ; 
 
 41W. R. 623 8G 
 
 Brandlyn r. Ord, 1 Atk. 571 398 
 
 Brandon v. Robinson, 18 Ves. 429 ; 11 R. R. 226 44, 49, 281 
 
 Braybrooke c Inskip. 8 Ves. 436 : 7 R. R. 106 288 
 
 Breeds, Re, 1 Ch. D. 226 ; 24 W. R. 200 ; 45 L. J. Ch. 191 262 
 
 Brentwood, etc., Co., Re, 4 Ch. D. 562 ; 25 W. R. 481 ; 46 L. J. Ch. 
 
 554 ; 36 L. T. 343 129 
 
 Breton v. Woollven, 17 Ch. D. 416 ; 29 W. R. 777 ; 50 L. J. Ch. 
 
 906 36,38 
 
 Brewster t\ Angell, IJ. & W. 625 97 
 
 Brice v. Stokes, 2 AVh. & Tu. 633 ; 11 Ves. 319 ; 8 R. R. 164 188. 221 , 
 
 236, 237, 869 
 
 Bridge, i?P, 56 L. J. Ch. 779 331 
 
 r. Brown, 2 Y. & C. C. C. 181 261 
 
 Bridgman r. Gill. 24 Beav. 302 384 
 
 Brier, Re, Brier v. Evison, 26 Ch. D, 238 222, 232 
 
 Brierley, Re, 43 W. R. 36 21 
 
 Briggs, i?^', and Spicer, [1891] 2 Ch. 381; 64L.T. 187; 60L.J.Ch.514 : 86 
 
 . r. Jones, 10 Eq. 92 90 
 
 r. Massey, 30 W. R. 325 ; 51 L. J. Ch. 447 ; 46 L. T. 354 ... 343 
 
 . f. Penny, 3 M. & G. 546 ; 3 De G. & S. 547 22, 53 
 
 Bright r. North, 2 I'h. 220 256,259 
 
 Brinton r. Lulhani, 53 L. T. 9 125,245 
 
 Brinsden r. Williams, [1894] 3 Ch, 185; 63 L. J. Ch. 713; 
 
 71 L. T. 177 ; 42 W. R. 700 384,385 
 
 Brogden, Re, Billing v. Brogden, 38 Ch. D. 546 ; W. N. (1888), 
 
 p. 238 ; 59 L. T. 6.50 190—193, 268, 308 
 
 Brooke, Re, Brooke v. Brooke, [1894] 1 Ch. 43 ; 63 L. J. Ch. 159 ; 
 
 70 L. T. 71 ; 42 W.R. 186 141,147 
 
 r. Ilayncs, 6 Eq. 25 137 
 
 Brooker /■. rearsoii, 37 Beav. 181 ... ... ... 48 
 
 Brooks, Re, Coles v. Davis, 76 L. T. 771 164, 165 
 
 Brougham (Lord) r. Toulett, 19 Beav. 135 179 
 
 Brown, /("r, 27 Beav. 324 277 
 
 ,i/(', Brown, 29 Ch. D. 889 207 
 
 ,i/r', Dixon y. Brown, 32 Ch. D. 597 389 
 
 r. Bn.WM, 7 Vm. 1 S5 ; 1 7 W. R. 98 ; 38 L. J. Ch. 153 ; 19 L. T. 
 
 591 70 
 
 v. Biinlett, 21 Ch. ]>. 667 ; 31 AV. R. 854 ; 48 L. T. 753 ... 65 
 
 r. De Tastet, .lac. 2.S4 ; 23 R. R. 59 ; 28 R. R. 25 243 
 
 r. (ielhitly, 2 Ch. App. 751 ; 15 W. R. 1188 170, 172, 175 
 
 ?•. lligfis, 4 VcH. 708 ; 4 R. 1J.323 15 
 
 r. How, Barn. 3.54 275 
 
 r. Jvitton, 1 J'. W. 140 240,243 
 
 r. Sil)lcy, 24 W. R. 783 288 
 
 T. Smith, W. N. 1878, II. 202 257
 
 TABLE OF CASES. XXlll 
 
 PAGE 
 Brown /■. Whiteway, 8 Hare, 145 ... ... ... ... ... 148 
 
 Browne y. Collins, 12 Eq. 586 1(52 
 
 Brumridge r. Brumridge, 27 Beav. 5 ... ... ... ... ... 367 
 
 Bryant, Re, Bryant r. Hickley, [1894] 1 Ch. 324 ; 63 L. J. Ch. l'J7 : 
 
 w..„a. 70 L. T. 311 ; 42 W. II. 183 2.58 
 
 ^-,i?6', andBarningham, 44 Ch. D. 218 15!) 
 
 Brydges v. Brydges, 3 Ves. jun. 125 ... !)4 
 
 Bubb V. Padwick, 13 Ch. D. 517 ; 28 W. R. 382 ; 49 L. J. Ch. 128 ; 
 
 41 L. T. 116 277 
 
 Buchanan w. Hamilton, 5 Ves. 722 ... 291 
 
 Buckeridge v. Glasse, 1 Cr. & Ph. 134 ; 10 L. J. Ch. 134 ... 136, 369 
 
 Buckland «. Pocknell, 13 Sim. 499 129 
 
 Buckmaster t. Buckmaster, 35 Ch, D. 21 ; 35 W. K. 438 ; 56 L. T. 
 
 795 ; 56 L. J. Ch. 379 60 
 
 Bucknill r. Morris, 52 L. T. 462 207 
 
 Budge v. Gummon, 7 Ch. App. 719 ; 20 W. K. 1022 ; 42 L. J. Ch. 
 
 22;27L. T. 666 214 
 
 Bullock, Be, Good r. Lickorish, 64 L. T. 736 ; 60 L. J. Ch. 341 ; 
 
 64 L. T. 736 ; 39 W. R. 472 282 
 
 V. Bullock, 56 L. J. Ch. 221 188 
 
 Bulmer V. Hunter, 8 Eq. 46 83 
 
 Bulwer v. Astley, 1 Ph. 422 180 
 
 Burdick i\ Garrick, 5 Ch. App. 233 ; 18 W. R. 387 ; 39 L. J. Ch. 
 
 369 131, 132, 341, 342, 345, 366 
 
 Burdon v. Burdon, 1 V. & B. 170 242 
 
 Burges y.Lamb, 16 Ves. 174 161 
 
 Burgess r. Wheate, 1 Edw. 595 43,152 
 
 Burnaby r. Griffin, 3 Ves. 206 97 
 
 Burnett v. Mann, 1 Ves. 156 60 
 
 Barney v. Macdonald, 15 Sim. 6 ... ... ... ... ... 5.S 
 
 Buron r. Husband, 4 B. & Ad. 611 40 
 
 Burrage, Re, Burrage c. Burningham, 62 L. T. 752 ... ... ... 25.S 
 
 Burrough r. Philcox, 5 My. & Cr. 72 ... ... ... ... ...15,20 
 
 Burrowes r. Lock, 10 Ves. 470 ; 8 R. R. 33, 856 220, 255 
 
 Burrows r. Walls. 5 D. M. & G. 253 ; 3 W. R. 327 ; 25 L.T. 18 : 252, 369 
 
 Burton, Re, Bank's v. Heaven, [1892] 2 Ch. 38 270,271 
 
 r. Hastings, Gill. Eq. Rep. 113 97 
 
 Burtt, Re, 1 Drew. 319 289 
 
 Bush V. Allen, 5 Mod. 63 143, 146 
 
 Butler c. Butler, 7 Ch. D. 116; 26 W. R. 85 ; 47 L. J. Ch. 77; 
 
 37 L. T. 518 246, 247, 365, 375, 378 
 
 r. Gray, 5 Ch. App. 26 21 
 
 Buttanshaw r. Martin, John. 89 ; 33 L. T. 300 ; 5 Jur. (N.s.) 647 : 
 
 277. 281 
 
 Butterworth, Re, Russell, Ex parte, 19 Ch. D. 588 79, 80, 327 
 
 Buxton r. Buxton, 1 My, & Cr, 93 ; 43 R. R, 138 189, 197 
 
 Byles, Re, 1 Ch. D. 282 49 
 
 Byrne r. Norcott, 13 Beav. 366 327 
 
 c. 
 
 Cabburn, iZe, 46 L. T. 848 •''^^ 
 
 Cadell y. Palmer, Tud. L. C, Conv, 578 ; 1 CI. & F, 372 ; 36 R. R. 
 
 128 44,45 
 
 Cadett 1-. Earl, 5 Ch. D. 710 ; 46 L. J. Ch. 798 207 
 
 Cadogan v. Essex (Lord), 2 Drew. 227 209 
 
 Cafe V. Bent, 5 Hare, 36 l'>8
 
 XXIV TABLE OF CASES. 
 
 I'AGE 
 
 Calvin's Case. 7 Rep. 49 03 
 
 Cambridge r. Rouse. 8 Ves. 24 ; 6 R. E. 199 46 
 
 Camden (Marq.) v. Murray. 16 Ch. D. 161 258 
 
 Cameron. Be. 26 Ch. D. 19 141 
 
 247 
 31 
 
 -, Be. Cameron i: Cameron. [1893] 3 Ch. 468 
 - and ^Yells. JRe, 37 Ch. I). 32 ; 36 W. R. 5 ... 
 
 Camovs (Lord) r. Best. 19 Bear. 414 '. 296 
 
 Campbell r. Bainbridge, 6 Eq. 269 328 
 
 V. Walker. .5 Yes. 680 ; 5 R. R. 13.5 19.5, 247. 249 
 
 Candler r. Tillett. 22 Beav. 257 198.232 
 
 Cann /•. Cann. .51 L. T. 770 198.23a 
 
 Caplin, i?<% 2 Dr. & Sm. .527 ' 21 
 
 Carberry r. McCarthy. 7 L. R. Jr. 328 22 
 
 Carew r. Cooper. 10 Jur. (x.s.) 429 43 
 
 Carlvon. Be, 35 W. R. 155 331 
 
 ^ r. Truscott. 20 Eq. 348 ; 44 L. J. Ch. 186 : 32 L. T. 50 ; 
 
 23W. R. 302 147.159 
 
 Carpenter, i?<% Kay. 418 305 
 
 Can-. Be, Carr v. Carr. 36 W. R. 688 236 
 
 Carrick r. Errington. 2 P. Wms. 361 112 
 
 Carruthers T. Carruthers. [1896] A. C. 659 221,237 
 
 Carson r. Sloane. 13 L. R.Ir. 139 387 
 
 Carter. i2e. 41 W. R. 140 172 
 
 and Kenderdine. [1897] 1 Ch. 776; 66 L. J. Ch. 408; 
 
 76 L. T. 476 : 13 T. L.R. 314:45 W. R. 484 86 
 
 )•. Carter. 3 Kay & J. 617 ; 27 L. J. Ch. 74 : 30 L. T. 349 ; 
 
 4 Jur. (y.s.) 63 400 
 
 r. Seabright. 26 Beav. 376 321 
 
 Cartwright, Be, Avis v. Newman, 41 Ch. D. 532 183 
 
 r. Cartwright. 3 D. M. & G. 982 43 
 
 Case r. James, 3 D. F. & J. 256 397 
 
 Castle r. Castle. 1 De G. & J. 3.52 23 
 
 Caswell r. Sheen. W. N. (1898), 187 313 
 
 Cater. Be, 25 Beav. 366 329 
 
 Cave v. Cave, 15 Ch. U. 639 ; 49 L. J. Ch. 656 ; 43 L. T. 158 ... 7. 90, 
 
 391, 395 
 
 Cawthome, J?(?, 12 Beav. 56 832 
 
 Cecil ?•. Langdon. 28 Ch. D. 1 298 
 
 Chad wick r. Ileatley, 2 Coll. 137 328,329 
 
 Challen r. Shippam, 4 Hare, 555 ... .., ... 233 
 
 Chambers r. Chambers, 2 Eq. Ca. Abr. 3.5, c. 4 97 
 
 r. (loldwin, 9 Ves. 267 ; 7 R. R. 181 : 8 ib. 61 241 
 
 ?•. Howell. 11 Beav. 6 2.52 
 
 r. Minchin. 7 Ves. 196: 6R. R. Ill 220 
 
 Chancellor r. Brown, 26 Ch. D. 42 167 
 
 Chandler r. Bradley, [1897] 1 Ch. 315 ; 66 L. J. Ch. 214 ; 75 L. T. 
 
 .5.S1 ; 45 W. R. 296 246 
 
 Chapman, Br Cocks r. Chapman, [1896] 1 Ch. 323 ; 2 Ch. 768 : 
 
 65 L. J. Ch. 892 ; 75 L. T. 196 ; 45 W. R. 67 191, 201 
 
 Chappie, Be, Newton t: Chappie, 27 Ch. 1). 584 ; 38 W. H. 23.5 ; 
 
 51 L. T. 748 241 
 
 Charles ?•. Jones, 33 Ch. I). 80 323 
 
 Chaston, 7/r, IH Ch. I). 218 277 
 
 Chennell, Br, Jones r. Chennell, S Ch. I). 492 213. 328 
 
 Chertsey Market, /('r. 6 I'r. 285 ; 20 K. R. 688 228 
 
 Chesterfield (Kari), Br, 24 Ch. I). 643 171. 177 
 
 V. JansKcn, 2 Ves. 158 870 
 
 Child r. Child, 20 IJeav. .50 208
 
 TABLE OF CASES. XXV 
 
 PACE 
 Childers r. Childers, 1 1). & J. 482 ; 5 W. R. 586 ; 26 L. J. Ch. 743 ... 1U9 
 Chillingworth r. Chambers, [1896] 1 Ch. 685 ; 65 L. J. Ch. 843 ; 
 
 74 L. T. 34 ; 44 W. R. 388 244, 365, 375, 376, 378, 382 
 
 Chippendale, ^ai^^ar^^', 4 DeG.M.& G. 19 321 
 
 Chisholm, i?<%43 Sol. J. 43 340 
 
 Christie r. Gosling, 1 H. L. 543 98 
 
 r. Ovington, 1 Ch. D. 279 ; 24 W. R. 204 286, 287 
 
 Christ's Hospital r. Grainger, 1 Macn. & G. 460 45 
 
 Churcher r. Martin, 42 Ch. D. 312 ; 37 W. R. 682 ; 61 L. T. 113 ... 366 
 
 Clare r. Clare, 21 Ch. D. 865 328 
 
 Clark V. Girdwood, 7 Ch. D. 9 ; 26 W. R. 90 ; 47 L. J. Ch. 116 ; 
 
 37L. T. 614 66 
 
 r. Hoskins, 32 L. J. Ch. 561 199 
 
 r. Malpas, 31 Beav. 80 70 
 
 r. Swaile, 2 Eden, 134 2.50 
 
 Clarke, lie, Coombe v. Carter, 36 Ch. D. 348 20, 41 
 
 t'. Franklin. 4 Kay & J. 257 123 
 
 V. Wright, 6 H. & N. 849 ; 30 L. J. Ex, 115 ; 4 L. T. 21 ; 
 
 9 W. R. 571 31 
 
 Clarkson r. Robinson. [1900] 2 Ch. 722 241 
 
 Clay r. Rufford, 5 De G. & S. 768 196 
 
 Clegg V. Edmonston, 27 L. T. 117 ; 3 Jur. (n.s.) 299 372 
 
 r. Fishwick, 1 M. & G. 294 127 
 
 Clements, JRc, Clements v. Pearsall, [1894] 1 Ch. 665 ; 63 L. J. Ch. 
 
 326 ; 70 L. T. 682 ; 42 W. R. 374 271 
 
 Clergy Orphan Corporation, i?(^ 18 Eq. 280 201 
 
 Cleveland (Duke of), Be, Hay v. Wolmer, [1895] 2 Ch. 542: 
 
 65 L. J. Ch. 29 ; 73 L. T. 313 171,177 
 
 Clint, He, Bolland, Ex parte, 17 Eq. 115 : 22 W. R. 152 ; 43 L. J. 
 
 Bk. 16 ; 29 L. T. 545 SI 
 
 Clive V. Carew, 1 J. & H. 199 ; 7 W. R. 433 ; 33 L. T. 161 380 
 
 Clough V. Bond, 3 My. & Cr. 497 ; 8 L. J. Ch. 51 ; 45 R. R. 314 ... 220, 
 
 221, 235, 237 
 
 r. Dixon, 10 Sim. 564 285 
 
 Clowes r. HiUiard, 4 Ch. D. 413 ; 25 W. R. 224 ; 46 L. J. Ch. 271... 356 
 
 Coard r. Holdernesse, 20 Beav. 147 104 
 
 Coatesand Parsons, ^^;, 34 Ch. D. 370 ; 35 W. R. 375 ; 56 L. J. Ch. 
 
 242;56L. T. 16 296 
 
 Cochrane r. Moore, 25 Q. B. D. 57 37 
 
 Cock r. Goodfellow, 10 Mod. 489 207,209 
 
 Cockburn v. Edwards, 18 Ch. D. 455 251 
 
 r. Peile, 3 D. F. & J. 170 ; 9 W. R, 725 ; 30 L. J. Ch. 575 j 
 
 4L. T. 571 211 
 
 Cockcroft r. Sutcliffe, 25 L. J. Ch. 313 328 
 
 Cockerill r. Cholmeley, 1 R. & M. 425 ; 36 R. R. 16 369 
 
 Cocksedge v. Cocksedge, 14 Sim. 244 ... 43 
 
 Cogan V. Duffield, 2 Ch. D. 44 ; 24 W. R. 905 ; 45 L. J. Ch. 307 ; 
 
 .34L. T. 593 «•> 
 
 r. Stephens, 5 L. J. (N.S.) Ch. 17 ; 42 R. R. 258 : 120, 122, 123 
 
 Coggs r. Bernard, 1 Sm. L. C. 177, 6th ed 4 
 
 Cogswell r. Cogswell, 2 Edw. Ch. 231 184 
 
 Colchester v. Lowton, 1 V. & B. 226 ; 12 R, R. 216 60 
 
 Cole r. Muddle, 10 Hare, 186 387 
 
 Coleman, Be, Henry r. Strong, 39 Ch. D. 443 220, 277, 282 
 
 V. Bucks, etc. Bank, [1897] 2 Ch. 243 ; 66 L. J. Ch. 564 ; 
 
 76 L. T. 684 ; 45 W. R. 616 355,393 
 
 Coles r. Trecothick, 9 Ves. 247 ; 7 R. R. 167 244,250 
 
 Colgan, flt^, 19 Ch. D. 305 262
 
 XXVI TABLE OF CASES. 
 
 PAGE 
 
 Collier r. M'Bean, 34 Beav. 426 %, -100 
 
 1: Walters, 17 Eq. 262 ; 22 W. K. 209 ; 43 L. J. Ch. 216 ; 
 
 29L. T. 868 14!) 
 
 Collins, Be, Collins v. Collins, 32 Ch. D. 229 ; 55 L. J. Ch. 672 : 
 
 55 L. T. 21 ; 34 W. R. 650 262, 270 
 
 r. Collins, 31 Beav. 346 129 
 
 r. Collins, 2 My. & K. 703 168 
 
 Collyer v. Isaacs, 19 Ch. D. 342 20, 40, 41, 85, 88 
 
 Colmore v. Tyudall, 2 Y. & J. 605 143, 144 
 
 Colombine r. Penhall, 1 Sm. & G. 228 83 
 
 Colyear v. Lady Mulgrave, 2 Kee. 81 ; 5 L. J. (N.s.) Ch. 335 ; 
 
 44 R. R. 191 28 
 
 Combs, iiV, 51 L. T. 45 317 
 
 Consterdine v. Consterdine, 31 Beav. 330 ; 31 L. J. Ch. 807 ; 10 W. R. 
 
 727 235,237 
 
 Conway r. Fenton, 40 Ch. D, 512 ; 58 L. J. Ch. 282 ; 59 L. T. 928 ; 
 
 37W. R. 156 184 
 
 Conyngham r. Conyngham, 1 Ves. sen. 522 ... ... ... ... 137 
 
 Cook v. Addison. 7 Eq. 466 ; 17 W. R. 480 ; 38 L. J. Ch. 322 ; 
 
 20 L. T. 212 351,355 
 
 r. Hutchinson, 1 Kee. 42 ; 44 R. R. 11 104 
 
 Cooke, IJx j)arfr, 4 Ch. 1). 123 ; 46 L. J. Bk. 52 ; 25 W. R. 171 ; 
 
 35L. T. 649 132,352 
 
 , Be, 4 Ch. D. 454 ; 25 W. R. 218 ; 46 L. J. Bk. 34 ; 35 L. T. 
 
 715 ■ ... 284,285 
 
 r. Crawford, 13 Sim. 91 ; 11 L. J. Ch. 406 289.290 
 
 r. Fuller, 26 Beav. 99 277,281 
 
 r. Lamotte, 15 Beav. 234 ... ... ... 66 
 
 Cookson i-. Lee, 23 L. J. Ch. 473 248 
 
 1-. Reay, 5 Beav. 22 278 
 
 Coombes v. Brookes, 12 Eq. 61 ... ... ... ... ... ... 304 
 
 Cooper and Allen, Ee, 4 Ch. D. 817 ; 25 W. R. 301 ; 46 L. J. Ch. 
 
 133 ; 35 L. T. 890 194, 195, 227, 233, 264. 265, 280 
 
 V. Kynock, 7 Ch. App. 398 ; 20 W. R. 503 ; 41 L. J. Ch. 299 ; 
 
 26L. T. 566 143,144 
 
 V. Macdonald, 7 Ch. D. 292 ; 26 W. R. 377 ; 47 L. J. Ch. 
 
 373 : 38 L. T. 195 282 
 
 r. Todd, 29 W. R. 502 319 
 
 Copland, 7?«,. Johns r. Carden, [1900] 1 Ch. 326 179,181 
 
 Coppard. /^f^, 35 Ch. D. 350 46 
 
 Coppring r. Cooke, 1 Ver. 270 130 
 
 Cordall's Case, Cro. Eliz. 316 143,147 
 
 Cordwell r. Mackrill, Ami). 515 ; 2 Eden, 344 392 
 
 Cornmell v. Keith, 3 Ch. D. 767 ; 24 VV. R. 633 ; 45 L. J. Ch. 689 ; 
 
 35L. T. 29 20 
 
 Cornish, /^', [1896] 1 Q. B. 99 362 
 
 Cornthwaitc r. Frith, 4 l)e G. & S. 552 ... ... ... ... 25 
 
 Corsellis, Jfr, Lawtou r. Elwes, 34 Ch. 1). 675 ; 55 L. J. Cli. 675 ... 241, 
 
 242, 246 
 
 Costabadie r'. Costabadie, 6 Hare, 410 ... ... ... 257 
 
 Costello r. O'Kourkc. 3 Ir. Eq. Rep. 172 161 
 
 Cothani r. West, 1 Hcav. 381 257,262 
 
 Cothay r. Sydciiliai.i, 2 I5ro. C. C. 391 218 
 
 Cottam r. East Coast Kail. Co., 1 .lolin. & H. 213 238 
 
 Cottiiigton r. Fietciicr, 2 Atk. 156 . 109 
 
 <:otton, y/r, I Cii. I). 232; 24 \V. H.2I3; 45 L. .I.Cl). 201; 33 L. T. 720 : 269 
 (Jotton's Trustees ami Ldiidoii School Hoard, y/r. 19 Ch. ]). 627; 
 
 30 W. U. (JIO ; 51 L. J. Cli. 514 ; 46 L. T. SI 3 ... 275, 278, 279
 
 TABLE OF CASES. XXVll 
 
 PAGE 
 
 Coulson, Rr, 4 Jur. (N.S.) 6 332 
 
 Courtier, Re, Coles v. Courtier, 34 Ch. 1). 13(; ; 3rj W. M. S,") ; 
 
 5« L. J. Ch. 350 ; 55 L. T. 574 179. 184, 185, 199, 258 
 
 Coutts V. Ackworth, 8 Eq. 558 ; 17 W. K. 1121 ; 38 L. J. Cli. 
 
 694 07,68 
 
 Coventry v. Coventry, 1 Kee. 758 ; 6 L. J. (N.s.) Ch. 275 ; 44 K. ]{. 
 
 169 293 
 
 Cowel r. Gatcombe, 27 Beav. 568 220 
 
 Cowin r. Graven, 34 W. R. 735 252 
 
 Cowley (Earl) r. Wellesley, 1 Eq. 656 186 
 
 Cowper t-. Stoncham, 68 L. T. 18 348,383,384 
 
 Cox V. Page, 10 Hare, 163 14 
 
 Crabb r. Crabb, 1 My. & K. 511 ; 3 L. J. Ch. 181 : 36 R. R. 362 ... 115 
 
 Cradoek r. Riper, 1 M. & G. 664 242 
 
 Craven v. Brady, 4 Ch. App. 296 ; 17 W. R. 505 ; 38 L. ,J. Ch. 
 
 345 44 
 
 f. Craddock, W. N. (1868), 229 157 
 
 Creaton v. Creaton, 3 Sm. & G. 386 ; 5 W. R. 125 ; 2t; L. J. Ch. 
 
 266 ; 2 Jur. (N.s.) 1223 141 
 
 Cresswell r. Dewell, 4 Giff. 465 369 
 
 Crichtou r. Crichton, [1895] 2 Ch. 853 ; 65 L. J. Ch. 491 ; 74 L. T. 
 
 357 369,374 
 
 Crockett r. Crockett, 2 Ph. 553 23 
 
 Croome n Croome, 61 L. T. 814 105,106 
 
 Cropton V. Davies, L. R. 4 C. P. 159 147 
 
 Crosby r. Church, 3 Beav. 485 380 
 
 Cross, Re, Harston r. Tenison, 20 Ch. 1). 109 ; 30 W. R. 376 ; 
 
 51 L. J. Ch. 645 ; 45 L. T. 777 371 
 
 Crossley v. Elsworthy, 12 Eq. 159 79 
 
 Crouch r. Credit Foncier, 8 Q. B. 374 ; 21 W. R. 946 391 
 
 Crowe, Re, 14 Ch. D. 610 ; 28 W. R. 885 305,315 
 
 Crowther, Re. Midgley r. Crowther, [1895] 2 Ch. 56 ; 64 L. J. Ch. 
 
 .537 ; 72L. T. 762; 43W. R. 571 167,172 
 
 r. Elgood, 34 Ch. D. 691 131, 132 
 
 Croxton 1-. May, 9 Ch. D. 388 279 
 
 Cull, Re, 20 Eq. 561 ; 23 W. R. 850 ; 44 L. J. Ch. 664 ; 32 L. T. 853 : 
 
 219, 328, 332, 333 
 Cunard, Re, 10 Ch. D. 29 ; 27 W. R. 164 : 40 L. T. 52 ... 307,319 
 Cunlifte v. Brancker, 3 Ch. D. 393 ; 46 L. J. Ch. 148 ; 35 L. T. 
 
 578 146 
 
 Cunnack v. Edwards, [1896] 2 Ch. 679 ; 65 L. J.Ch. 801 ; 75 L. T. 
 
 122;45W. R. 99 107 
 
 Cunningham and Erayling. Re, [1891] 2 Ch. 567 ; 00 L. J. Ch. 591 ; 
 
 64 L. T. 558 ; 39 W. K. 469 286, 289 
 
 17. Foot, 3 App. Cas. 974 14,103 
 
 Curnick r. Tucker, 17 Eq. 320 23 
 
 Currant t;. Jago, 1 Coll. 261 114,119 
 
 Currie, i2^', lOCh.D. 93 317 
 
 r. Nind, 1 My.& Cr. 17 89 
 
 Curteis, Re, 14 Eq. 220 ; 41 L. J. Ch. 631 ; 26 L. T. 863 ... 114, 115 
 
 V. Wormald, 10 Ch. D. 172 ; 27 W. R. 419 ; 40 L. T. 108 : 
 
 120—123 
 
 Curtis, Re, 5 Eq. 422 307 
 
 %: Perry, 6 Ves. 739 ; 6 R. R. 28 109 
 
 i'. Price, 12 Ves. 89 ; 8 R. R. 303 143, 145 
 
 Cusack r. Cusack, 5 Bro. P. C, Tom. ed. 116 96 
 
 Cutler t\ Boyd, 60 L. T. 859 217
 
 XXVIU TABLE OF CASES. 
 
 D. 
 
 PAGE 
 
 D'Adhemar r. Bertrand, 35 Beav. 19 303 
 
 Dale. Ex parte. 11 Ch. D. 772 : 27 W. K. 815 : 48 L. J. Ch. 600 ; 
 
 iOL. T. 712 ... 354 
 
 Dalgleish. Ee. 4 Ch. D. 143 : 25 W. R. 122 ; 35 L. T. 829 ... 305. 315 
 
 D'Almaine r. Moselev. 1 Dr. 629 104 
 
 Dance r. Goldingham. 8 Ch. App. 902 : 21 W. R. 761 ; 29 L. T. 166 ; 
 
 42L. J. Ch. 777 195.356,358 
 
 Dangar. Be. 41 Ch. D. 178 ; 37 W. R. 651 : 58 L. J. Ch. 315 : 
 
 60L. T. 491 385 
 
 Daniel r. Warren. 2 Y. & C. C. C. 290 168 
 
 DanieU. Be. 1 Ch. D. 375 : 24 W. R. 227 : 45 L. J. Ch. 105 ; 34 L. T. 
 
 308 66 
 
 Dan>on. i?*-. 48 W. R. 73 302.304 
 
 Dartnall. Be, Sawyer r. Goddard. riS95] 1 Ch. 474 : 64 L. J. Ch. 
 
 341 : 72 L. T. 404 : 43 W. R. 644 '. 254 
 
 Darrille r. Terry. 6 H. & N. 807 84 
 
 Danbeny r. Cockbnm. 1 Mer. 638 ... ... ... ... ... 75 
 
 Davenport r. Bishopp. 2 Yon. & Coll. 451 ... ... 28 
 
 Daveron, Be. Bowen r. Churchill. [1893] 3 Ch. 421 278 
 
 Daridson r. Kempron. 18 Ch. D. 213 279 
 
 Davie?, i?f'. 16 Jnr. (X.S.) 882 187 
 
 . i?*'. Davie* r. Davies. 38 Ch. D. 210 331 
 
 . Be. Davies r. Davies. [1892] 3 Ch. 63 34. 39 
 
 . Be. Ellis r. Roberts. [1898] 2 Ch. 142 : 67 L. J. Ch. 507 ; 
 
 79L. T. 344 365 
 
 to Jones and Evans. 24 Ch. D. 190 141 
 
 r. Davies. 9 Eq. 468 : 18 TV. R. 634 : 39 L. J. Ch. 343 : 
 
 22L. T. 505 66.73 
 
 V. Davies. 4 Beav. 54 ... ... ... ... ... ... 96 
 
 r. Hodgson, 25 Beav. 177 : 6 W. R. 355 : 27 L. J. Ch. 449 : 
 
 31L. T. 49 218 
 
 r. Hodgson. 32 Ch. D. 225 295 
 
 r. ( )ttv. 35 Beav. 208 109.112.119 
 
 r. Westcombe. 2 Sim. 425 : 29 R. R. 12S 160 
 
 Davis. ^,. 12 Eq. 214 303 
 
 . Muckalt F. Davis. W. N. (1887). 186 323 
 
 r. Angel. 10 W. R. 723 356 
 
 r. Duke of Marlborough. 1 S\v. 74 42 
 
 Dawson, i?r, 48 W. R. 73 291 
 
 r. Clarke, 18 Ves. 247 ; 11 R. R. 188 104, 367 
 
 r. Prince, 2 D. & J. 41 : 6 W. R. 171 ; 27 L. J. Ch. 169 ; 
 
 :;m L. T. 237 397 
 
 '•. Small, 14 Eq. 104 ; 22 W. R. 514 ; 43 L. J. Ch. 406 ; 
 
 30 L. T. 2.52 62 
 
 Dean, Be. Cooper-Dean r. Stevens. 41 Ch. D. 556 ; 60 L. T. 813 : 62, 64, 65 
 r. McDowell, 8 Ch. D. 345 ; 26 W. R, 486 ; 47 L. J. Ch. 537 ; 
 
 SSL. T. 862 127 
 
 De Bcauvoir r. De Beanvoir, 3 H. L. Cas. 524 124 
 
 I)e BiisMhc r. Alt, 8 Ch. 1). 287 249 
 
 de Clifford (I»rd). ///■. dc Clifford r. Quilter, [1900] 2 Ch. 707 ... 361 
 
 De la Warr (Earl), i/r. 16 Ch. D. 587 179.187 
 
 I)elve« r. Newington, 52 L. T. 512 178 
 
 Dent r. Bennett. 4 Mv. A: Cr. 277 ; 40 R. R. 188 66 
 
 r. Dent, 30 Beav'. .363 184 
 
 De I'othonicr, Be, Dent r. Pothonier, [1900] 2 Ch. 529 ... 198. 232
 
 TAELE OF CASES. XXIX 
 
 PAGE 
 
 De Sayres v. T)e Sayres. 87 L. T. n. 93 ... — 312 
 
 De Tabley, Br, Leif,'htoii r. Leighton, 75 L. T. 828 184, 185 
 
 De Teissier, Re, De Teissier r. De Teissier, [1893] 1 Ch. 153 ; 
 
 62 L. J. Ch. 552 ; 68 L. T. 275 ; 41 W. 11. 186 184 
 
 Detmold, Ei; Detmold r. Detmold, 40 Ch. D. 585 48, 82 
 
 De Visme, Be, 2 De G. J. & S. 17 ; 12 W. R. 140 ; 33 L. J. Ch. 
 
 332;9L. T. 068 117 
 
 Dewar r. Brooke, 33 W. R. 497 228 
 
 Dewhirst, Be, 33 Ch. D. 416 ; 35 W. R. 147 ; 55 L. T. 427 ; 
 
 55L. J. Ch. 842 305,315,317 
 
 De Witte c. Palin, 14 Eq. 251 ; 20 W. R. 858 ; 26 L. T. 825 257, 262 
 
 Dibbs f. Goren, 11 Beav. 483 388 
 
 Dick, Be, Lopes e. Hume- Dick, [1891] 1 Ch. 433 ; 60 L. J, Ch. 177 ; 
 
 64 L. T. 32 201,204 
 
 Dickenson r. Player, C. P., Cooper's Cases, 1837, 1838, p. 178 ... 207 
 
 Dickson, Be, Hill r. Grant, 29 Ch. D. 331 270 
 
 Diggles, Be, Gregory v. Edmondson, 30 Ch. D. 253 15, 23 
 
 Dimes v. Scott, 4 Russ. 195 ; 28 R. R. 46 176, 349, 350 
 
 Dipple r. Corles, 11 Hare, 183 ; 1 W. R. 47 ; 22 L. J. Ch. 15 ...14. 28 
 
 Dix V. Burford, 19 Beav. 409 367 
 
 Dixon, Be, Heynes v. Dixon, [1900] 2 Ch. 561 386 
 
 r. Brown. 32 Ch. D. 587 7 
 
 i: Dixon, 9 Ch. D. 587 ; 27 W. R. 282 ; 48 L. J. Ch. 592 ; 
 
 40L. T. 208 382,383 
 
 V. Gayfere, 21 Beav. 118 ; 17 Beav. 433 129, 278 
 
 ■ r. Olmius, 1 Cox, 414 133 
 
 Dobson r. Land, 8 Hare, 330 ... 130,198 
 
 Docksey r. Docksey, 2 Eq. Ca. 506 104 
 
 Docwra, Be, 29 Ch. D. 693 286 
 
 Dod V. Dod, Amb. 274 97 
 
 Dodds r. Hills, 2 Hem. & M. 424 400 
 
 I'. Tuke, 25 Ch. D. 617 321,326 
 
 Dodkin r. Brunt, 6 Eq. 580 28,303 
 
 Doe r. Barthropp, 5 Taunt. 382 ; 15 R. R. 530 147 
 
 V. Biggs, 2 Taunt. 109 ; 11 R. R. 533 140 
 
 r. Bolton. 11 A. & E. ISS ; 3 P. & D. 135 ... 140, 142, 148 
 
 V. Bottriell. 5 B. & Ad. 131 ; 39 R. R. 432 89 
 
 r. Cafe, 7 Ex. 675 146 
 
 V. Edlin, 4 A. & E. 582 ; 5 L. J. K. B. 137 142, 148 
 
 V. Ewart, 7 A. & E. 636 ; 7 L. J. Q. B. 177 142, 147 
 
 V. Field, 2 B. & Ad. 564 ; 36 R. R. 672 142, 147 
 
 r. Godwin, 1 D. & R. 259 ; 16 R. R. 463 284 
 
 r. Harris, 16 M. & W. 522 ; 16 L. J. Ex. 190 135,136 
 
 f. Homfray, 6 A. & E. 206 ; 1 Nev. & P. 401 143 
 
 ■??. Mnnning, 9 East, 57 ; 9 R. R. 503 89,92 
 
 ». Mores, 2 W. Bl. 1019 89 
 
 v. Nichols, 1 B. & C. 336 ; 1 L. J. K. B. 124 ; 25 R. R. 398 ... 143 
 
 v. Routledge, Cowp. 705 93 
 
 c. Rusbam, 17 Q. B. 723 90,91 
 
 V. Simpson, 5 East, 162 143, 147 
 
 t-. Willan, 2 B.& Ad. 84 147 
 
 Doering v. Doering, 42 Ch. D. 203 ; 37 W. R. 796 ; 58 L. J. Ch. 
 
 553 382, 383, 387. 391 
 
 Dolphin r. Aylward, 4 H. L. 486 89 
 
 Donaldson r. Donaldson, Kay, 711 ; 24 W. R. 1137 ; 34 L. T. 900 ...33, 59 
 
 Doobyr. Watson, 39 Ch. ]). 178 131. 132, 366 
 
 Dorin v. Dorin, L. R. 7 ; H. L. 568 ; 23 W. R. 570 49 
 
 Douglas, Be, (Jbert r. Barron, 35 Ch. D. 472 62
 
 XXX TABLE OF CASES. 
 
 PAGE 
 
 Douglas r. Andrews, 12 Beav. 310 262 
 
 V. Archbnt, 2 D. & J. 148 ; 6 W. K. 306 ; 31 L. T. 4 ; 
 
 47L. J. Ch. 291 240 
 
 r. Bolam, [1900] 2Ch. 749 295 
 
 Dove r. Everard, 1 Buss. & M. 231 ; 32 B. B. 200 137 
 
 Dover r. Buck, 5 Gift'. 57 248 
 
 Downes r. Bullock, 25 Beav. 54 388 
 
 Downing, i?P, 60 L. T. 140 56 
 
 Dowser. Gorton, [1891] A. C. 190 322,331 
 
 Doyle r. Blake, 2 Sch. & Lef. 239 ; 9 E. B. 76 ... 135,137,188,220 
 
 Drake r. Trefusis, 10 Ch. App. 364 184 
 
 Drew v. Martin, 2 Hem. & M. p. 133 ; 12 W, E. 547 ; 33 L, J, Ch. 
 
 367 ; 10 L. T. 291 30,113 
 
 Drinkwater v. Coombe, 2 S. &St. 340 ; 3 L. J. Ch. 178 ; 25 E.E, 210 : 131 
 
 Driver, i^<^ 19 Eq. 352 299,305 
 
 Drosier r. Brereton, 15 Beav. 221 213,214 
 
 Dubois, U.cjmrf I', I Cox mo 151 
 
 Dubost. £.(■ 2)artc, 18 Ves. 140 ; 11 B. B. 173 36 
 
 Dugdale, Re, Dugdale r. Dugdale, 38 Ch. D. 176 49, 52 
 
 Dulwich, etc. Society, Re Meall r. Fearce, 68 L. ,T. Ch. 196 360 
 
 Dumas, i^'./'^^fl/fr. 2 Ves. sen. 582 ; 1 Amb. 234 352,354 
 
 Dumble. Re, Williams v. Murray, 23 Ch. D. 360 271 
 
 Dungannon r. Smith, 12 CI. & F 546 45 
 
 Dunn r. Flood, 25 Ch. D. 629 ; 32 W. B. 197 ; 49 L. T. 670 ... 195 
 
 Dmnmge r. White, 1 Jac. & W. 583 104 
 
 Dutton r. Thompson, 23 Ch. D. 278 67,68,327 
 
 Dyer r. Dyer, 2 Cox, 73 ; 2 B. B. 14 113 
 
 Dyker. Bendall, 2 De G. M. & G.209 129 
 
 Dyson and Fowke, Re, [1896] 2 Ch. 720 ; 05 L. .T. Ch. 790 ; 74 L. T. 
 
 759 ; 45 W. B. 28 279 
 
 E. 
 
 Eady r. Watson, 12 AV. E. 682 187 
 
 East, Re, 8 Ch. App. 735 ; 42 L. J. Ch. 480 297 
 
 East C^oast Bail. Co. r. Hawkes, 5 H. L. Cas. 331 196 
 
 Easton r. Landor, 67 L. T. 833 ; 62 L. J. Ch. 64 ; 67 L.T. 833 ... 327 
 
 Eastwood V. Clarke, 23 Ch. D. 134 272 
 
 Eaton r. Daines, W. N. (1894), 32 ; 70 L. T. 761 305 
 
 Eaves r. Ilickson, 30 Beav. 136 ; 10 W. E. 29 ; 5 L. T. 598 ; 7 Jur. 
 
 (N.s.) 1297 217,218,220,384 
 
 Ebrand r. Dancer, 2 Ch. Ca. 26 113,119 
 
 Ecclesiastical Commissioners r. Finney, [1900] 2 Cli. 736 ... ... 196 
 
 Eddd, 7.V, 11 E(i. 559 147 
 
 Edgar r. Flomlcy, [1900] A. C. 431 383 
 
 Kdmonds /•. I'eiike, 7 Beav. 239 ... ... ... ... ... ... 233 
 
 Edwards r. Dcwar, 31 W. |{. 62 ; 54 L. J. Ch. 1049 ; 53 L. T. 422 326 
 
 »•. Fashion, I'r. Ch. 332 114 
 
 r. llarben, 2 T. K. 587 ; 1 E. B. 54,S 78 
 
 r. .loiicH. 1 My. & Cr. 226 ; 5 L. J. (N.s.) Ch. 194 ; 
 
 43 B. \{. 17H 33 
 
 r. Merrick, 2 Hare, 60 251 
 
 Kgl)crt /•. Mutter, 21 Ueav. 560 237,383 
 
 Egiiii r. Sanderson, 3 (iilV. 434 253 
 
 Et;niont (Kurl) r. Smith, 6 Cii. 1). 169 ; 46 L. .J. Ch. 356 : 128, 129, 252 
 
 Klc.,.k r. M!ii.|), 3 II. I-. ('as. 492 104 
 
 Elliott, Jtr, \:, iMj. 191 ; 21 \V. I{. 455 ; 42 L. .J. Ch. 289 : 332, 333, 334 
 KlliH, Re, 17 E(i. 409 ; 22 W. U. 448 ; 43 L. J. Ch. 414 281
 
 TABLE OF CASES. XXXI 
 
 PACK 
 
 Ellis, Re, 59 L. T. 924 — 331 
 
 • r. Barker, 7 Ch. App. 104 161 
 
 Ellison, lie. 2 Jur. (N.s.) 262 135 
 
 r. Ellison, 2 Wh. & Tu. 835 ; 6 Ves. 65(! ; 6 H. R. 19 ... 28 
 
 Elmore, He, 9 W. K. 6G 187 
 
 Elton r. Elton, 27 Beav. 634 97 
 
 Elve r. Boyton, [1891] 1 Ch. 501 ; 60 L. J. Ch. 883 ; 64 L. T. 482 208 
 Emma Silver Mining Co. v. Grant, 11 Ch. D. 918 ; 40 L. T. 804 ... 127 
 Emmet, Be, Emmet v. Emmet, 17 Ch. D. 142 ; 29 W. K. 464 ; 
 
 50 L. J. Ch. 341 ; 44 L. T. 173 344, 345 
 
 Equitable Society v. Euller, 1 John. & H. 379 187 
 
 Ernest r. Croysdill, 2 D. F. & J. 175 351 
 
 Esseryr. Cowlard, 26 Ch. D. 191 66,69,107 
 
 Evans, Be, 7 Ch. App. 659 179 
 
 , Re, Evans v. Evans, 34 Ch. D. 597 322 
 
 r. Benyon, 37 Ch. D. 229 369,380 
 
 r. Bicknell, 6 Ves. 174 ; 5 R. R. 245 151 
 
 r. Carrington, 2 D. F. & J. 481 ; 30 L. J. Ch. 364 : 4 L. T. 
 
 65 ; 70 
 
 V. Edmonds, 13 C. B. 777 70 
 
 V. Jackson, 8 Sim. 217 ; 6 L. J. (N.S.) Ch. 8 ; 42 R. R. 163 260 
 
 , John, 4 Beav. 35 138 
 
 Everett v. Prythergch, 12 Sim, 365 ... 357 
 
 Everitt r. Everitt, 10 Eq. 405 ; 18 W, R. 1020 ; 23 L. T. 136 ... 67, 68 
 
 livers t'. Challis, 7 H. L. Cas. 531 44,46 
 
 Eykin, i?^,6Ch. D. 115 113 
 
 Eyre r. Dolphin, 2 B. & B. 290 126 
 
 V. Shaftesbm-y (Comitess), 2 P. Wms. 121—124 284 
 
 Y.yatou, Ex parte,! Qh.D.l^a 281 
 
 Eyton, Be, Bartlett v. Charles, 45 Ch. D. 458 ; 59 L. J. Ch. 733 ; 
 
 63 L. T. 336 ; 39 \V. R. 135 398 
 
 Ezort V. Lister, 5 Beav. 585 ... ... 385 
 
 F. 
 
 Farhall v. Farhall, 7 Ch. App. 123 ; 20 W. R. 157 ; 41 L. J. Ch. 
 
 146 ; 25 L. T. 685 151 
 
 Fanner r. Deane, 32 Beav. 327 244,249 
 
 Farnham, Be, [1895] 2 Ch. 730 ; 64 L. J. Ch. 717 ; 73 L.T. 231 ... 86 
 Farrant v. Blanchford, 11 W. R. 178 ; 32 L. J. Ch. 107 ; 7 L. T. 
 
 607 370,371 
 
 Farrar r. Farrar, Ltd., 40 Ch. D. 395 248 
 
 Fawcett v. Whitehouse, 1 R. & M, 132 ; 32 R. R. 163 ; 8 L. J. Ch. 
 
 50 127 
 
 Featherstonc r. West, 6 Ir. Eq. R. 86 375, 378 
 
 " Featherstonhaugh r. Fenwick, 17 Ves. 311 ; 11 R. R. 77 127 
 
 Feistel r. St. John's College, 10 Beav. 491 43 
 
 Fellows, i/c, 2 Jm-. (N.s.) 62 187 
 
 V. Mitchell, 1 V. Wms. 81 ; 2 Vern. 516 236 
 
 Fenwick r. Clarke, 4 ])e (i. F. & J. 240 : 10 W. R. 636 ; 31 L. J. Ch. 
 
 728;6L. T. 593 163,233,388 
 
 Ferris r. Mullins, 2 Sm. & Gif. 378 130 
 
 Festing r. Allen, 12 M. & W. 279 146 
 
 Field v. Donoughmore, 1 Dr. & War. 227 25 
 
 r. Field, [1894] 1 Ch. 425 ; 63 L. J. Ch. 233 ; 69 L. T, 826 ; 
 
 42 W. R. 346 198,232 
 
 Finden v. Stephens, 2 Vh. 142 ... 26
 
 XXXll TABLE OF CASES. 
 
 PAGE 
 
 rinney, Be, 3 Gif. 465 288 
 
 Firmin r. Pulham. 2 Dea. & Sw. 99 328 
 
 Fish, Re. Bennett v. Bennett, [1893] 2 Ch. 413 : 69 L. T. 233 ... 242 
 
 Fisk r. Att.-Gen. 4 Eq. .o21 ; 15 W. E. 1200 62 
 
 Fitch 1-. Webber, 6 Hare, 14.5 121 
 
 Fitzgerald. Re, 37 Ch. D. 18 25 
 
 Fitzherbert, i??. W. X. (1898), 58 295 
 
 Fitzpatrick r. Waring, 11 L. E. Ir. 35 260 
 
 Fitzsimmon. il/'^^az-f^'. 25 L. E. Jr. 24... ., ... ... ... 354 
 
 Fknagan r. Great Western Eail. Co.. 19 L. T. (N.S.) 345 127 
 
 Flavell, Re, Murray v. Flavell, 25 Ch. D. 89 34, 39 
 
 Fletcher v. Ashbumer. 1 W. & T. L. Cas. 741 124 
 
 r. Fletcher. 4 Hare, 78 356 
 
 r. Green, 33 Beav. 426 238, 348, 351, 376 
 
 Flower and Met. Board, Re, 27 Ch. D. 592 ; 32 W. E. 1011 ... 220. 230, 
 
 234, 235, 236 
 
 Floyer v. Banks, 8 Eq. 115 44, 49, 131 
 
 Foley r. Bany. 2 Mv. & K. 138 22 
 
 r. Bumell. 1 B. C. C. 277 3.56,357 
 
 r. Hill. 2 H. L. Cas. 28 .366 
 
 r. Wontner. 2 Jac. & W. 245 ; 22 E. E. 110 284 
 
 Foligno. ^^ 32 Beav. 131 333.334 
 
 Ford, Re. Gilbert v. Gilbert, 63 L. T. 557 28 
 
 Forrest r. Forrest, 13 W. E. 380 ; 11 L. T. 763 ; 34 L. J. Ch. 428 : 
 
 11 Jur. (x.s.) 311 114 
 
 Forshaw v. Higginson. 8 D. M. & G. 827 : 20 Beav. 485 ; 5 W.E. 424 ; 
 
 26 L. J. Ch. 342 ; 29 L. T. 43 ; 3 Jur. (x.S.) 476. ..191, 293, 334 
 
 r. Welsby, 30 Beav. 243 66, 70 
 
 Forster r. Abraham, 17 Eq. 351... ... ... ... ... ... 306 
 
 Fortescue v. Barnett, 3 Mv. & K. 36 ; 3 L. J. (x.s.) Ch. 106 ; 
 
 41E. E. 5 " 33 
 
 Foster, Re. 55 L. T. 499 304 
 
 Foster and Lister, Re, 6 Ch. D. 87 : 25 W. E. 553 ; 4G L. J. Ch. 
 
 480 ; 36 L. T. .582 ... ' 92 
 
 , i?^% Lloyd f. Carr, 45 Ch. D. 629 178 
 
 r. Dauber, 8 W. E. 646 135 
 
 V. Elsley. 19 Ch. 1). 518 ; 30 W. E. 596 ; 51 L. J. Ch. 275 ... 26 
 
 r. Hale, 3 Yes. 696 52.53 
 
 Fountain v. Pellet, 1 Yes. jun. 337, 342 179, 181 
 
 Foulkes r. :Metropolitan District Eail. Co., 5 C. P. D. 157 4 
 
 F<iveaux,i/<', Cross ^London Antivivisection Society, [1895] 2 Ch. 501 : 65 
 
 Fuwkes r. Pascoe. 10 Ch. App. 343, 349 108, 114, 11 5 
 
 Fuwler, Re, W. N. (1886), p. 183 295 
 
 , Re, Fowler r. Odell. 16 Ch. D. 723 ; 29 W. E. 891 ; 44 L. T. 
 
 99 184.199.260 
 
 r. Fowler, 33 Beav. 616 62 
 
 Fu.x r. Bucklcv, 3 Ch. D. 511 ; 25 W. E. 107 7. 383, 389 
 
 f. llawkes, 13 Ch. 1). .S22 ; 28 W. E. 656 ; 49 L. J. Cli. 57'.» ; 
 
 42 i>. T. 622 38 
 
 „. Mackreth, 2 \\\\. ic Tu. 709 ; 2 Cox, 320 ; 2 E. E. 55 ... 244 
 
 Francis r. Francis, 5 D. M. & G. 108 209, 238, 249 
 
 Fraser /•. .Murdoch, <; App. Cas. 855 1(;4, 223, 320, 321 
 
 Freeman, Rr, W. N. (1«.S7), p. 210 ; 37 Ch. I). 148 242,307 
 
 V. l'oi)e, 5 Ch. App. 540 ; 18 W. E, 906 ; 39 L. J. Ch. 689 : 
 
 23L.T. 11 75.79,80 
 
 Fntnan. ///•, Dimond r. Newluirn, [1898] 1 Ch. 28 185 
 
 Fr.nie /•. Clement, IN Ch. D. 514 ; 44 I>. T. 398 144 
 
 French c. llobsun, 9 V'es. 103 369
 
 TABLE OF CASES. XXXlll 
 
 PAGE 
 Frith V. Cameron, 12 Eq. 109 18-i 
 
 V. Cartland, 2 Hem. &M. 417 ; 14 W. E. 403 ; 34 L. J. Ch. 301 ; 
 
 12 L. T. 175 150,351, 352 
 
 Frost, Br, Frost v. Frost, 43 Ch. D. 24(5 4(J 
 
 Fry, Br, 40 Ch. D. 104 70 
 
 r. Tapson, 28 Ch. D. 268 ; 33 W. R. 113 ; 54 L. J. Ch. 224 ; 
 
 51L. T. 326 196,214,221,224,347 
 
 Fryer, i?^', 3 Kay & J. 317; 5 W. R. 552; 26 L. J. Ch. 398; 
 
 3 Jur. (N.S.) 485 221,236 
 
 Fnlham, Er, 15 Jur. (N.S.) 69 187 
 
 Fuller, iZt', [1900] 2 Ch. 551 301,317 
 
 <•. Knight, 6 Beav. 205 382,387 
 
 G. 
 
 Gadd, Be, Eastwood r. Clarke, 23 Ch. D. 134 ; 31 W. R. 417 ; 
 
 52 L. J. Ch. 396 ; 48 L. T. 395 298. 
 
 Gaffee, i?e, 1 M. & G. 547 277,281 
 
 Gainsborough (Lord) r. Watcombe Terra Cotta Co., 54 L. J. Ch. 
 
 991 ; 53 L. T. 117 256,344 
 
 Gale r. Gale, 6 Ch. I). 144 ; 25 W. R. 772 ; 36 L. T. 690 ... 28, 29, 31 
 Gardiner, Be, 33 Ch. D. 590 ; 35 W, R. 28 ; 55 L. T. 261 ; 
 
 55L. J. Ch. 714 295,305,315 
 
 Gardner, Be, 10 Ch. D. 29 312 
 
 Garland, ^.<- ^;«?-te, 10 Ves. 199 151,323 
 
 Garner v. Moore, 3 Drew. 277 ; 3 W. R. 497 273 
 
 Garnett, Be, Gandy v. Macauley, 31 Ch. D. 1 ; 32 W. R. 474 ...331, 369, 373 
 Garnham v. Skipper, 34 W. R. 935 ; 55 L. J. Ch. 263 ; 53 L. T. 
 
 940 7 
 
 Garrard r. Lauderdale, 3 Sim. 1 ; 2 E. & M. 451 25 
 
 Garrett r. Wilkinson, 2 D. & S. 244 117 
 
 Gascoigne r. Thwing, 1 Ver. 366 104 
 
 Gaskell r. Chambers, 26 Beav. 360 127 
 
 Gasquoine, Be, Gasquoine v. Gasquoine, [1894] 1 Ch. 470 198 
 
 Gee T. Liddell, 35 Beav. 621 35 
 
 General Estates Co., Be, 3 Ch. App. 758 ; 16 W. R. 919 ; 18 L. T. 
 
 894 391,399 
 
 Genery r. Fitzgerald, Jac. 468 271 
 
 Gent V. Harrison, John. 517 ... ... 263 
 
 George, Be, 5 Ch. D. 837 ; 37 L. T. 204 270, 271 
 
 r. Howard. 7 Price, 646 ; 21 R. R. 775 114 
 
 r. Milbanke, 9 Ves. 189 ; 7 R. R. 157 75 
 
 German Mining Co., Be, 4 D. M. & G. 19 32U 
 
 Gibbins r. Taylor. 22 Beav. 344 376 
 
 Gibbs r. Glamis, 11 Sim. 584 25 
 
 r. Rumsey, 2 V. & B. 294 ; 13 R. R. 88 104,112 
 
 Gibson ?r. Jeyes, 6 Ves. 277 ; 5 R. R. 295 244,251 
 
 r. Lord Montfort, 1 Ves. 485 147 
 
 Giffard (Lord) v. Fitzhardinge (Lord), [1899] 2 Ch. 32 ; 68 L. J. Ch. 
 
 529 ; 47 W. R. 618 ; 81 L. T. 106 131 
 
 Gilbert v. Overton, 2 Hem. & M. 110 33, 40. 59 
 
 Giles, Be, 34 W. R. 712 332, 335, 337 
 
 Gilroy t: Stephen, 30 W. R. 755 ; 46 L. T. 761 198, 344 
 
 Gisborne v. Gisborne, 2 App. Cas. 300 ; 25 W. R. 516 ; 46 L. J. Ch. 
 
 556 ; 36 L. T. 564 167, 256, 257, 261, 273 
 
 Gjers, Be, Cooper r. Gjers, [1899] 2 Ch, 54 ; 68 L. J. Ch. 442 ; 
 
 47 W. R. 535 ; 80 L. T. 689 179, 181, 185
 
 XXXIV TABLE OF CASES. 
 
 PAGE 
 
 Gladdon r. Stoneman. 1 Madd. 143 n 357 
 
 Glenny and Hartley, Re, 25 Ch. D. 611 ; 32 W. R. 457 ; 53 L.J. Ch. 
 
 417;50L. T. 79 296 
 
 Glenorchv (Lord) v. Bosville, For. 8 ; 2 W. & T. L. C. 703 94, 96 
 
 Glover r."Strothoff, 2 B. C. C. 33 43 
 
 Godden. Re, Teague i\ Fox, [1893] 1 Ch. 292 ; 62 L. J. Ch. 469 ; 
 
 68L. T. 116 171.177 
 
 Godfrey, j?^. 23 Ch. D. 205 317 
 
 , i?P. Godfrey ;•. Faulkner, 23 Ch. D. 483 214 
 
 c. Poole, 13 App. Cas. 503 ; 58 L. T. 685 ; 37 W. K. 357... 76 
 
 Godolphin r. Godolphin. 1 Ves. sen. 21 ... ... 308 
 
 Goldsworthyr. Knight, 11 M. & W. 337 ... 234 
 
 Gompertz r. Kensit, 13 Eq. 369 324 
 
 Goodenough, Re, Marland v. Williams, [1895] 2 Ch. 537 171, 
 
 177,344 
 
 r. Tremamondo, 2 Beav. 512 168 
 
 Goodier r. Johnson, 18 Ch. D. 441 ... ... ... ... ... 46 
 
 Goodson V. Ellison, 3 Russ. 583 : 27 R. R. 127 334 
 
 Goodwin, Re, 17 Eq. 345 : 22 AV. R. 619 ; 43 L. J. Ch. 258 ... 49 
 
 Gordon. Re. Gordon v. Roberts, 6 Ch. D. 531 ; 46 L. J. Ch. 794 ; 
 
 37L. T. 627 135 
 
 Gosling r. Gosling, Johns. 265 ... ... ... ... ... ... 277 
 
 Gough r. Bult, 16 Sim. 323 21 
 
 r. Etty, 20 L. T. 358 327 
 
 r. Smith, W. X. (1872), p. 18 234,236 
 
 Gould. ^(', 19 Q. B. D. 92 85 
 
 r. Robertson, 4 De G. & S. 509 25 
 
 Gow r. Forster. 26 Ch. D. 672 183 
 
 Gowan r. White, 60 L. T. 931 1U5 
 
 Grant r. Grant, 34 Beav. 623 38 
 
 Graves r. Dolphin. 1 Sim. 66 ; 5 L. J. Ch. 45 : 27 R. R. 1G6 ...44. 48 
 Gray, £/-^7«rfr, 4Dea. & Ch. 778: 2M. & A. 283 151 
 
 r. Siggers, 15 Ch. ]). 74 ; 29 W. R. 13 ; 49 L. J. Ch. 819... 167, 173 
 
 Graybum r. Clarkson. 3 Ch. App. 606 ; 17 W. R. 716 ; 18 L. T. 
 
 495 197 
 
 Great Luxembourg Rail. Co. v. Magnay. 25 Beav. 586 ... ... 127 
 
 Greaves, Re, Jones r. Greaves. [1900] 2Ch. 683 270,271 
 
 r. Simpson, 10 Jur. (K.s.) 609 - ... 96 
 
 Green, Exjjurte, 2 Dea. & Ch. 116 ; 1 Jac. & W. 253 151, 
 
 257, 2(i2 
 
 r. Carlill, 4 Ch. D. 882 ; 46 L. J. Ch. 477 19 
 
 r. Marsden, 1 Dr. 646 ; 1 W. R. 511 22 
 
 r. Paterson, 32 Ch. D. 95 ; 54 L. T. 738 ; 34 W. 1^. 724 ...28. 38 
 
 r. Spicer, 1 R. & M. 395 ; 8 L. J. Ch. 105 ; 32 R. R. 232 ... 48, 
 
 49, 281 
 
 ;•. Wynn, 4 Ch. App. 204 ; 17 W.R. 385 ; 38 L. J. Ch. 220 ; 
 
 20 L. T. 131 106 
 
 Greenway /•. Grecnway, 29 L. J. Ch. 601 124 
 
 Greenwood, Re, 27 Ch. 1). 3.59 312 
 
 r. Wakeford, 1 Heav. .581 293 
 
 (ircgory r. Gregory, 2 Y. & C. C. C. 313 221 
 
 r. Henderson, 4 Taunt. 772 ; 14 R. R. 665 141 
 
 Gregson, 7/r, [1893] 3Ch. 233 314 
 
 Trusts. Re, 34 Ch. D. 209 ; 56 L. J. Ch. 286 ; 35 W. R. 286 : 
 
 291, 299, 305 
 (Jrenfcil r. Dean, etc. of Windsor, 2 Beav. 554 ... ... ... 41 
 
 Grenviile-Mnrniy r. Clarendon (Earl), 9 Eq. 11; 18 W. K. 124; 
 
 39 L. J. Ch. 221 ; 21 L. T. 418 27
 
 TABLE OF CASES. XXXV 
 
 PAGE 
 Oresley r. Mousley, 4 D. & J. 78 ; 31 L. J. Ch. 537 : 8 Jur. (x.s.) 
 
 320 371 
 
 Grier v. Cxrier, L. K. 5 H. L. 688 97 
 
 Grieveson r. Kirsopp, 2 Keen, 653 ... ... ... ... ... 15 
 
 <inffin,Uj)2Jarfe,2G.kJ.nC> 234 
 
 V. Bradv, 39 L. J. Ch. 136 328 
 
 Griffith V. Buckle, 2 Ver. 13 96 
 
 r. Ricketts, 7 Hare, 307 25 
 
 Griffiths V. Hughes, [1892] 3 Ch. 105 ; 66 L. T. 760 ; 40 W. K. 524 : 
 
 375, 381 
 
 r. Porter, 25 Beav. 236 218 
 
 V. Vere, Tud. L. C. Conv. 618 ; 9 Ves. 127 44 
 
 Grindey, Be, Clews v. Grindey, [1898] 2 Ch. 593 ; 67 L.J. Ch. 624 
 
 79 L. T. 105 ; 47 W. R. 53 361 
 
 Gunnell v. Whitear, 18 W. R. 883 ; 22 L. T. 645 333 
 
 Gurney, Be, Mason v. Mercer, [1893] 1 Ch. 590 ; 68 L. T. 289 ; 
 
 41 W. R. 443 365 
 
 Guthrie v. Walrond, 2 Ch. D. 573 271 
 
 Gyhon, Be, Allen v. Taylor, 2 Ch. D. 834 335 
 
 H. 
 
 H.'s Estate, Be, 1 Ch. D. 276 ; 24 W. R. 317 ; 45 L. J. Ch. 749 ... 357 
 
 H. r. W., 3 Kay & J. 382 43 
 
 Habergham v. Vincent, 2 Ves. jun. 230 ... ... ... ... 53 
 
 Haddesley c Adams, 22 Beav. 266 ; 27 L. T, 148 146 
 
 Hadley, iZs, 5 De G. & Sm. 67 300 
 
 Haigh v. Kaye, 7 Ch. App. 469 ; 20 W. R. 597 ; 41 L. J. Ch. 567; 
 
 26 L. T. 675 53, 108 
 
 Hale «. Sheldrake. 60 L. T. 292 341,345,383.389 
 
 i;. Saloon Omnibus Co., 4 Dr. 492 ' 84 
 
 Hales f. Cox, 32 Beav. 118 93 
 
 Halifax Joint Stock Bank r. Gledhill, [1891] 1 Ch. 31 ... 75, 84 
 
 Hall, Be, Hall r. Hall, 33 W. R. 508 298 
 
 V. Bromley, 35 Ch. D. 642 314 
 
 v. Hall, 8 Ch. App. 430 ; 21 W. R. 373 ; 42 L. J. Ch. 444 ; 
 
 28L. T. 383 67,68 
 
 r. Hallett. 1 Cox, 134 ; 1 R. R. 3 247 
 
 V. May. 3 Kay & J. 585 ; 5 W. R. 869 289 
 
 Hallett, Be, Ex parte Blane, [1894] 2 Q. B. 237 354 
 
 , Be, Knatchbull r. Hallett, 13 Ch. 1)., p. 719 ; 28 W. R. 321 ; 
 
 49 L. J. Ch. 61 ; 41 L. T. 723 150, 351. 3.52, 354 
 
 v. Hallett, 13 Ch. D. 232 ; 28 W. R. 321 ; 49 L. J. Ch. 61 ; 
 
 41 L. T. 723 389 
 
 Hallows V. Lloyd. 39 Ch. D., p. 691 ; 58 L. J. Ch. 105 ; 59 L. T. 
 
 603;37W. 11.12 155.156,220 
 
 Hamilton, Be, Trench r. Hamilton, [1895] 1 Ch. 373 ; [1895] 2 Ch. 
 370 ; 64 L. J. Ch. 799 ; 72 L. T. 748 ; 43 W. R. 577: 
 
 15, 18, 23 
 
 t: Molloy, 5 L. R. Iv. 339 91 
 
 r. Tighe, [1898] L. R. Ir. 123 187 
 
 Hanbury i: Kirkland, 3 Sim. 265 ; 30 R. R. 165 228, 237 
 
 Hancock c. Smith, 41 Ch. D. 456 355 
 
 Hancox r. Spittle, 3 Sm. & G. 478 312 
 
 Hundcock, Be, 13 L. R. Ir. 34 45 
 
 Harbin v. Darbv. 28 Beav. 325 ; 8 W. R. 512 ; 2 L. T. 531 241
 
 XXXVl TABLE OF CASES. 
 
 PAGK 
 
 Harcourt r. Seymour, 3 Sim. (x.s.) 45 ... 278- 
 
 Hardakei-r.Moorhouse. 26Ch.D. 417 297 
 
 Hardcastle, ^a-j;«/f^, 29 W, E. 615; 44L. T. 525 356 
 
 Harden r. Parsons, 1 Eden, 147 236 
 
 Harding v. Glyn, 2 W. T. L. C. 335 ; 1 Atk. 469 : 4 R. E. 334 ... 22 
 
 V. Harding, 17 Q. B. D. 442 ; 34 W. E. 775 ... 28, 33 
 
 Hardoon r. Belilios, [1901] A. C. 118 320 
 
 Hardwicke r. Mynd. 1 Anst. 109 228,225 
 
 Hardy r. Eeeves, 5 Ves. 426 392 
 
 Harford. Be, 13 Ch. D. 135 295 
 
 Harkness and Allsopp, Be, [1896] 2 Ch. 358 ; 65 L. J.. Ch. 726 ; 
 
 74 L. T. 652 ; 44 \Y. R. 683 308 
 
 Harman v. Eichards. 10 Hare, 89 ... ... ... ... ••• 84 
 
 Harris v. Harris, 29 Beav. 107 ; 7 Jur. (N.S.) 955 ... 207, 209, 388 
 
 r. Tubbs, 42 Ch. D. 97 83,90,91 
 
 Harrison, Be. 22 L. J. Ch. 69 ; 20 L. T. 123 291, 297, 30(> 
 
 r. Forth, Pr. Ch. 51 390 
 
 Hartr.Middlehurst,3 Atk. 371 97 
 
 Harton r. Harton, 7 T. E. 652 ; 4 E. E. 537 141, 148, 149 
 
 Harvard College r. Alderman, 104 Mass. 470 182 
 
 Harvey, ^^', Peek r. Savory, 39 Ch. D. 289 44 
 
 V. Olliver, 57 L. T. 239 ; W. N. (1887), 149 ... 155, .324 
 
 Harwood v. Tooke, 2 Sim. 192 ; 29 E. E. 81 41 
 
 Hastie r. Hastie. 2 Ch. D. 304 ; 24 W. E. 564 ; 34 L. T. 747 ... 20 
 
 Hawker, Be, Duff v. Hawker, 66 L. J. Ch. 341 ; 76 L. T. 286 ... 186 
 Hawkins v. Gardiner, 2 Sm. & G. 451 ... ... ... ... ••• -^2 
 
 r. Kemp. 3 East, 410 225 
 
 r. Luscombe, 2 Sw. 391 148 
 
 Hayter, ^r, 32 W. E. 26 254 
 
 Head and Macdonald, i?(?, 38 W. E. 657 159 
 
 Head v. Gould. [1898] 2 Ch. 250 ; 67 L. J. Ch. 480 ; 78 L. T. 739 : 199. 
 
 347, 348, 378 
 
 Hcadington, i?('. 6 W. E. 7 ; 27 L. J. Ch. 175 332 
 
 Heardson r. Williamson, 1 Kee. 33 ; 44 E. E. 7 143, 147 
 
 Heartlcy V. Nicholson, 19 Eq. 233 36 
 
 Heasman r. Pearec, 7 Ch. App. 275 ... ... ... ... ••• 45 
 
 Heath r. Lewis. 2 1). M. & G. 954 f>2 
 
 Hcming, 7/r, 3 Kay & J. 40 332,335 
 
 Hemming v. Neil, 62 L. T. 649 220 
 
 Henderson v. M'lver, 3 Madd. 275 226 
 
 V. Eothschild, 33 Ch. D. 459 25 
 
 Hengler, Be, Frowde r. Hengler, [1893] 1 Ch. 5S6 ; W. N. (1893), 
 
 37 : 62 L. .1. Ch. 383 ; 68 L. T. 84 ; 41 W. E. 491 ... 183, 331 
 
 Henriciuez r. Hcnsusan, 20 W. E. 350 25 
 
 Henry r. Aniistroug, IS Ch. 1). 668 ; 44 L. T. 918 29, 67, 68 
 
 Hepworth r. llepworth, 11 K(i. 10 ; 19 W. E. 46 ; 40 L. J. Ch. Ill ; 
 
 23 L. T. 3.SS 117 
 
 Hctherington. y/r, 34 Ch. 1). 211 319 
 
 Hetling and .Mcrton, J.'e, 68 L. T. 749 ; 42 W. K. 19 225 
 
 Hewitt, y/r. 6 W. I{. 537 311 
 
 Jlibhertr. Hiljbert, 3 Meri. 681 ; 17 K. H. 169 26 
 
 r. Cooke, 1 S. cV S. 552 : 21 ){. 1^ 225 181 
 
 Hickley r. Hirkley. 2 Ch. 1). 190 ; 21 W. U. 601 ; 45 !.. ,1. Ch. 401 ; 
 
 34 L. T. 441 251 
 
 Higgiiibottoni, Br, [1892] 3 Ch. 132; 62 L. .1. Cii. 71 ; 67 L. T. 
 
 190 295 
 
 /•. Holme, 19 Ves. 88 IS, 81.83 
 
 HiggiiiH r. Hill. 56 L. T. 126 41
 
 TABLE OF CASES. XXXVll 
 
 PAGE 
 Highway v. Banner, 1 Bro. C. C. 584 97 
 
 Hill's Trusts, ^^, W. N. (1874), 228 307 
 
 Hill, Be, 75 L. T. 477 844 
 
 , Bfl, Hill V. Pilcher, 65 L. J. Ch. .-311 ; 74 L. T. 4(30 ; 44 W. K. 
 
 573 258 
 
 r. Bishop of London. 1 Atk, 626 108 
 
 r. Hill, [1897] 1 Q. B. 483 ; 66 L. J. Q. B. 329 ; 76 L. T. 103 ; 
 
 45 W. K. 871 23 
 
 Hilliard r. Fulford, 4 Ch. D. 389 219, 254, 388 
 
 Hillman, 7?t', 10 Ch. D. 622 91 
 
 Hinchinbrooke (Lord) v. Shipbrook, 16 Ves. 477 237 
 
 Hindmarsh, Be, 1 Drew. & Sm. 129 132 
 
 Hinton i\ Hinton, 2 Ves. sen. 638 ... ... ... 150 
 
 Hinves v. Hinves, 3 Hare, 609 ... ... ... ... .. ... 165 
 
 Hirst V. Hirst, 9 Ch. App. 262 337 
 
 Hitchens v. Congreve, 1 Ry. & M. 150 127 
 
 Hoare v. Osborne, 1 Eq. 585; 14 W. R. 383 ; 14 L. T. 9 ; 35 L. .1. 
 
 Ch. 345 64 
 
 Hobbs «. Wayet, 36 Ch. 250 320,321 
 
 Hobday r. Peters, 28 Beav. 603 ' 198 
 
 Hoblyn (•. Hoblyn, 41 Ch. 1). 200 ; 60 L. T. 499 ; 38 W. R. 12 ... 72 
 
 Hobson, i?t', 53 L. T. 627 ; 34 VV. R. 70 171,177 
 
 Hockey v. Western, [1898] 1 Ch. 350 ; 67 L. J. Ch. 166 ; 78 L. T. 1 ; 
 
 46W. R. 812 280 
 
 Hodgkinson, Be, Hodgkinson v. Hodgkinson, [1895] 2 Ch. 190 ; 
 
 64 L. J. Ch. 663 ; 72 L. T. 617 ; 48 W. R. 594 323, 335 
 
 Hodgson, Ex parte, 19 Yes. 208 48,81 
 
 Hoghton c. Hoghtou, 15 Beav. 299 66 
 
 Holbeyo. Western, [1898] 1 Ch. 350 220 
 
 Holden, Be, 20 Q. B. D. 43 327 
 
 Holford, Be, [1894] 3 Ch. 30 271 
 
 Holland, ^e, 16 Ch. D. 672 817 
 
 Holloway 1.'. Radcliffe, 28 Beav. 163 278 
 
 Holmes t). Bring, 2 Cox, 1 208 
 
 • f. Williams, W. N. (1895), 116 127 
 
 Holt, Be, 49 W. R. 650 375 
 
 , Be, Holt V. Holt, [1897] 2 Ch. 525 379. 381 
 
 Hood ('. Oglander, 84 Beav. 513 ; 34 L. J. Ch. 528 49, 281 
 
 Hooper v. Smart, 1 Ch. D. 90, 98 387 
 
 Hope V. D'Hedouville, [1893] 2 Ch. 361 ; 62 L. J. Ch. 589 ; 68 L. T. 
 
 516 174.176 
 
 Hopgood V. Parkin, 11 Eq. 70 ; 18 W. R. 908 ; 22 L. T. 772 : 226, 228 
 
 Hopkins, Be, 18 Eq. 696 162 
 
 Hopper V. Conyers, 2 Eq. 549 ; 14 W. R. 628 ; 12 Jur. (N.s.) 328. ..351, 855 
 
 Hora i\ Hora, 83 Beav. 88 28 
 
 Horlock ('. Horlock, 2 De G. M. & G. 644 281 
 
 Home, ^.c^^aj'^e, 51 L. T. 301 83 
 
 1\ Barton, 19 Ves. 398 97 
 
 Hosegood V. Pedler, 66 L. J. Q. B. 18 ; 13 T. L. R. 6 320 
 
 Hoskin, J?tf, 5 Ch. D. 229 330,334 
 
 Hotchkys, Be, Freke v. Calmady, 32 Ch. D. 408 ; 34 W. R. 569 ; 
 
 55 L. J. Ch. 546; 55 L. T. 110 179,184,199 
 
 Household, Be, 27 Ch. D. 553 184 
 
 Houston V. Hughes, 6 B. & C. 403 142 
 
 How V. Earl Winterton, [1896] 2 Ch. 626 ; 65 L. J. Ch. 832 : 75 L. T. 
 
 40;45W. R. 108 364,365 
 
 Howe V. Dartmouth (Lord), 1 W. & T. L. Ca. 68 ; 6 R. R. 96 ... 165, 
 
 166, 209
 
 XXXVlll TABLE OF CASES. 
 
 PA-; 
 
 Howel r. Howel. 2 Ves. 35S 'JT 
 
 Howarth. Be. 8 Ch. App. ilo ; 21 W. li. 44'J : 42 L. J. Ch. 316 ; 
 
 28L. T. 54 257.262 
 
 Hnbbnck, JRe. Hart v. Stone. [1896] 1 Ch. 754 ; 65 L. J. Ch. 271 ; 
 
 73 L. T. 738 ; 44 W. E. 289 177.178 
 
 Hushes, i:.r 2Ja i-te. 6 Yes. 617 249 
 
 — ^:^ — r. Empson. 22 Bear. 181 197 
 
 r. Ivearney, 1 Sch. & Lef. 134 : 9 R. K. 30 129- 
 
 r. Key. 20 Bear. 395 324 
 
 v. WilUams. 12 Ves. 493 ; 8 R. R. 364 130- 
 
 r. Wills. 9 Hare. 773 369- 
 
 Hugbes-Hallett i: Indian ilammoth Gold Mines Co., 22 Ch. D. 561 ; 
 
 52 L. J. Ch. 418 ; 48 L. T. 107 : 31 W. R. 285 322 
 
 Hnenenin v. Baseley. 14 Ve?. 273 : 9 R. R. 276 66, 6S. 71 
 
 Hulkes. He. Powell" v. Hulkes. 35 W. R. 194: W. X. (1886). Ill : 
 
 217. 343 
 
 Hnmberston r. Humberston. 1 P. Wms. .332 95.100- 
 
 Hnrne i: Richardson, 4 De G. P. & J. 29 ; 10 W. R. 558 ; 31 L. J. Ch. 
 
 713 : 6 L. T. 624 : 8 Jur. (N.S.) 686 175- 
 
 Hamphrev, Be. 1 Jur. (x.s.) 921 293 
 
 Humphries. Be. 62 L. J. Ch. 498 : 41 W. R. 519 ; 68 L. T. 729 ... 270 
 Hunt. Be. Pollard v. Geake. [1900] VT. X. 65 281. 28a 
 
 r. Bateman. 10 Ir. Eq. R. 360 36/ 
 
 Hunt-Foulston v. Furber, 3 Ch. D. 285 : 24 W. R. 756 278 
 
 Hunter ?•. Atkins. 3 My. & K. 113 : 41 R. R. 30 68 
 
 V. Bullock. 14 Eq. 45 : 20 W. R. 460 : 41 L. J. Ch. 637 ; 
 
 26L. T. 349 62 
 
 Hurst. Be, Addison r. Topp, 67 L. T. 96 : 63 L. T. 665 ... 155. 163, 
 
 188, 190. 209 
 
 V. Hurst. 9 Ch. App. 762 239 
 
 Hutchings. Be. W. N. (1887). 217 22 
 
 Hutchinson v. Stephens. 5 Sim. 499 ; 44 R. R. 72 304.312 
 
 Hutton r. Annan, [1898] A. 0. 289 ; 67 L. J. P. C. 49 : 14 T. L. R. 
 
 255 200.208 
 
 Huxtable. J?./- parte, 2 Ch. D. 54 : 24 W. R. 686 : 45 L. J. Bkcy. 59 : 
 
 34 L. T. T. 608 87 
 
 Hj-lton V. Hylton. 2 Ves. 547 68 
 
 Ibbet-son t). Elam, 1 Eq. 188 162 
 
 Imperial Land Co. of Marseilles, Be. 4 Ch. D. 566 ; 46 L. J. Ch. 
 
 235 243 
 
 Ingle r. Partridge. 34 Beav. 412 196.214 
 
 Ingram, /?(% 11 W. R. 980 211 
 
 Inwiwxl V. Twyne. 2 Eden, 153 ... ... ... ... ... ... 257 
 
 Irby. y.'/, 17 J5eav. 334 332 
 
 r. Irby, 25 Beav. 632 387 
 
 Irons r. Sniallpiece, 2 B. A; Aid. 551 ; 21 R. R. 395 37 
 
 Irvine ?•. Sullivan, S f:q. 673 ; 17 W. R. 10S3 104,105.108 
 
 Irwin. /^, Harton r. Irwin, \V. N. (1895), 23 331 
 
 Isaac,' Br, Cronbach r. Isaac, [1897J 1 Ch. 251 ; 66 L. J. Ch. 160 ; 
 
 75 L. T. 638 ; 45 W. R. 262 324 
 
 r. Wall, 6 Ch. U. 706 131
 
 TABLE OF CASES. XXXIX 
 
 J. 
 
 PAGE 
 
 Jackson, Be, Jackson v. Talbot, 21 Ch. D. 780 263 
 
 V. Welsh, L. & G. temj). Plunk. 346 127 
 
 Jacob V. Lucas, 1 Beav. 436 ... ... ... ... ... ... 284 
 
 Jacubs V. Rylance. 17 Eq. 351 ; 43 L. J. Ch. 280 382, 383 
 
 Jago r. Jago, 68 L. T. 654 138 
 
 James, Ex parte, 8 Ves. 337 ; 1 Deac. & Ch. 272 245,247,321 
 
 f. Couchman, 29 Ch. D. 212 69 
 
 r. Dean, 15 Ves. 236 ; 8 R. R. 178 126 
 
 V. Erearson, 1 Y. & C. C. C. 370 135, 136 
 
 V. May, 6 H. L. Cas. 328 321 
 
 Jarratt v. Aldam, 9 Eq. 463 ; 18 W. R. 511 ; 39 L. J. Ch. 349 ; 
 
 22 L. T. 192 73 
 
 Jeffrey, Re, Burt v. Arnold, [1891] 1 Ch. 671 ; 60 L. J. Ch. 470 ; 
 
 64L. T. 622 270 
 
 Jeffries v. Jeffries, Cr. & Ph. 138 32 
 
 Jenkins v. Keymis, 1 Lev. 150 ... 89 
 
 Jervis v. Wolferstan, 18 Eq. 24 320 
 
 Jervoise, iZe, 12 Beav. 209 398 
 
 V. Northumberland (Duke of), 1 Jac. & W. 571 ; 21 R. R. 
 
 229 ... ... ... ... ... ... ... ... ...94 96 
 
 nSilk, IG. Coop. 52';"i4R.'r. 215* '.'.'. '.'.'. '..'. 262 
 
 Jesse «. Lloyd, 48 L. T. 656 263 
 
 Job V. Job, 6 Ch. D. .563 197 
 
 Jobson V. Palmer, [1893] 1 Ch. 71 ; 62 L J. Ch. 180 ; 67 L. T. 
 
 797 188,197 
 
 Jodrell V. Jodrell, 9 Beav. 45 ... ... 50 
 
 Johns V. James, 8 Ch. D. 744 ; 39 L. T. 54 ; 26 W. R. 821 25 
 
 Johnson, Re, W. N. (1886), 72 208 
 
 Re, Shearman r. Robinson, 15 Ch. D. 548 322, 323 
 
 ■ V. Fesemeyer, 3 D. & J. 13 ... ... ... ... ... 251 
 
 V. Newton, 11 Hare, 160 233 
 
 Johnston r. Johnston, 52 L. T. 76 66,74 
 
 Johnstone r. Baber, 8 Beav. 233 159 
 
 Jones f. Badley, 3 Ch. App. 362 ... ... ... 58 
 
 r. Foxall, 15 Beav. 392 342,344 
 
 f, Goodchild, 3 P. Wms. 33 153 
 
 r. Higgins, 2 Eq. 538 ; 14 W. R. 448 ; 35 L. J. Ch. 403 ; 
 
 14 L. T. 126 371 
 
 V. Julian, 25 L. R. L-. 45 216 
 
 r. Langton, 1 Eq. Ca. Abr. 392 96 
 
 V. Lewis, 2 Ves. 240 197 
 
 V. Locke, 1 Ch. App. 25 ; 14 W. R. 149 ; 13 L. T. 514 ; 35 L. J. 
 
 Ch. 117 36,37 
 
 w. Morgan, 1 Bro. C. C. 206 ; 62 L. J. Ch. 592 96 
 
 V. Powell, 4 Beav. 96 273 
 
 «. Searle,49L. T. 91 198,345 
 
 v. Smith, 1 Hare, 43 "• 396 
 
 V. Thomas, 3 P. Wms. 243 391 
 
 Joseph V. Lyons, 15 Q. B. D. 280 40, 85, 88 
 
 Josselyn v. Josselyn, 9 Sim. 63 ... ... ... ... ... ••• 276 
 
 Joy r. Campbell, 1 Sch. & Lef. 341 ; 9 R. R. 39 237 
 
 Joyce V. De Moleyns, 2 Jo. & Lat. 374 398 
 
 Judkin, Re, 25 Ch. D, 743 270
 
 xl TABLE OF CASES. 
 
 K. 
 
 PAGE 
 
 Kavanagh, ^(?, 27 L. E. Ir. 495 207 
 
 Kay, Be, Mosley v. Kay, [1897] 2 Ch. 524 ; 66 L. J. 759 ; 46 W. R. 
 
 74 361 
 
 Kaye r. Powell, 1 Ves. 408 275 
 
 Keen r. Deardon, 8 East,248 142 
 
 Kekewich v. Manning, 1 De G. M. & G. 176 ; 21 L. J. Ch. 577 : 33. 59 
 
 Kelly V. Nichols. 17 R. I. 306 65 
 
 Kemp V. Burn, 4 Giff. 348 252 
 
 Kempson v. Ashbee. 10 Ch. App. 15 ; 23 "W. R. 38 ; 44 L. J. Ch. 
 
 348;20L. T. 71 72 
 
 Kendal f. Granger, 5 Beav. 300 107 
 
 V. Wood. L. R. 6 Ex. 248 133 
 
 Kenrick v. Beauclerc (Lord), 3 B. & P. 175 ; 6 R. R. 746 141 
 
 Kent V. Riley, 14 Eq. 190 ; 20 W. R. 852 ; 41 L. J. Ch. 569 ... 80 
 
 Kershaw, i?r, Whitaker r. Kershaw, 45 Ch. D. 320 ; 60 L. J. Ch. 9 ; 
 
 63L. T. 203 321 
 
 Kevan r. Crawford, 6 Ch. D. 29 ; 26 W. R. 49 ; 46 L. J. Ch. 729 ; 
 
 37L. T. 332 75,83 
 
 Kilbee r. Sneyd, 2 Moll. 199 220 
 
 Kilpin V. Kilpin, 1 M. & K. 521 ; 36 R. R. 367 54, 119 
 
 King, ^26-, 21 L. R. Ir. 273 56,107 
 
 , Re, Sewell v. King, 14 Ch. D. 177 37 
 
 V. Denison, 1 V. & B. 279 ; 12 R. R. 227 ... 103, 105, 106 
 
 r. King, 1 D. & J. 603 ; 27 L. J. Ch. 29 : 6 W. R. 85 ; 30 L. T. 
 
 177 333 
 
 . r. MuUins, 1 Drew. 311 328,329 
 
 Kingdon r. Castleman, 25 W. R. 345 193,198 
 
 Kingham r. Kingham, [1897] 1 Ir. 170 185 
 
 Kingston, etc., Co., Be (No. 2), [1896] 1 Ch. 279 ; 65 L. J. Ch. 290 ; 
 
 73 L. T. 745 ; 44 W. R. 363 382 
 
 Kinloch v. Secretary of State for India, 15 Ch. 1). 1 ; 30 W. R. 845 : 27 
 Kirkham r. Booth, 11 Beav. 273 ... ... ... ... ... 154 
 
 Kirman v. Daniel, 5 Hare, 499 ... ... ... ... ... ... 25 
 
 Knapmaii, Be, Knapnian r. Wreford, IS Ch. D. 300 ... ... ... 326 
 
 Knight, Be. 27 Beav. 45 ; 33 L. T. 54 ; 5 Jiir. (N.s.) 326 ...188, 333, 334 
 
 r. Bowyer, 23 Beav. 635 40 
 
 v. Brown, 7 Jur. (N.S.) 894 48 
 
 T. Knight, 3 Beav. 148 14 
 
 ^^ Majorihanks, 2 M. & G. 12 247,252 
 
 V. riynu.nth (Earl). 1 Dick, 120 232 
 
 Knight's Will, Be, 26 Ch. 1). ,S2 301 
 
 Knott, Be, ]5ax r. Palmer, 56 L. J. Ch. 318 321, 328 
 
 Knox, Be, [1895] 2 Ch. 483; 64 L. J. Ch. 402; 72 L. T. 416; 
 
 43 \V. R. 442 313,324 
 
 r. (iyc, L. R. 5 H. L. 656 ; 42 L. J. Ch. 284 129, 252 
 
 Kronheim r. Johnson, 7 Cii. 1). 60 ; 26 \V. H. 112 ; 17 L.J. Cli. 132 ; 
 
 37L. T. 751 52 
 
 Liiccy, ^.r;m/-/r, r, Vcs. 625 243,244 
 
 Lacy, Be, Royal (;oncral Tlifatrinnl Fund r. Kydd, [1899] 2 (^h. 149 ; 
 
 08 L. J. Ch. 488 ; 4 7 \V. K. 6(11 ; HO L. T. 70(; 366
 
 TABLE OF CASES. 
 
 xH 
 
 Laing, Rt; Laing r. Radcliffe, [1899] 1 Ch. 593 ; 68 L. J. Ch. 230 
 
 •17 W. K. 311 ; SOL. T. 228 
 
 Lake v. Gibson, 1 Eq. Ca. Ab. 290 
 
 Lambe, i^t;, 28 Ch. D. 77 
 
 V. Eames, 6 Ch. App. 599 ; 40 L, J. Ch. 447 : 23 L. T. 175 
 
 19W. K.659 
 
 Lambert v. Peyton, 8 H. L. Cas. 1 
 
 Lamotte, Re, 4 Ch. D. 325 
 
 Lands Allotment Co., Re, [1894] 1 Ch. 631 ; 63 L. J. Ch. 291 
 
 70 L. T. 280 ; 42 W. R. 404 
 
 Lane, Re. 24 L. T. 181 ; 3 W. R. 134 
 
 ■;;. Debenham, 11 Hare, 188 ; 1 W. R. 465 
 
 V. Dighton, Amb. 409 
 
 Langdale, Re, [1901] 1 Ch. 3 
 
 Langford v. Angel, 4 Hare, 313 
 
 r. Gascoigne, 11 Ves. 333 ; 8 R. R. 170 
 
 Langham v. Sandt'ord, 17 Ves. 442 
 
 Langston v. OUivant, G. Coop. 33 ; 14 R. R. 216 
 
 Lashmar, Re, Moody i: Penfold, [1891] 1 Ch. 258 ; 60 L. J. Ch. 
 
 64 L. T. 333 
 
 Lavendar v. Blackston, 3 Keb. 526 
 
 Law V. Law, 3 P. W. 393 
 
 Lawson c. Copeland, 2 B. C. C. 156 
 
 Leach v. Leach, 10 Ves. 517 
 
 Leahy v. De Moleyns, [1896] 1 Ir. R. 206 
 
 Leake, Re, 32 Beav. 134 
 
 Lee V. Brown, 4 Ves. 369 : 4 R. R. 208 
 
 V. Lee, 4 Ch. D. 175 ; 25 W. R. 225 ; 46 L. J. Ch. 81 ; 36 L 
 
 138 
 
 V. Sankey, 15 Eq. 204 ; 21 W. R. 286 ; 27 L. T. 809 ... 
 
 PAGE 
 
 .' 209 
 . 114 
 . 295 
 
 .' 18 
 
 96 
 
 . 311 
 
 'y. Toung, 2 Y. & C. C. 532 
 
 Leedham v. Chawner, 4 K. & J. 458 ; 32 L. T. 221 
 
 L. T. 
 
 Lees, Re, [1896] 2 Ch. 508; 65 L. J. Ch. 770; 
 
 44W. R. 680 
 
 Le Hunt v. Webster, 9 W. R. 918 
 
 Leigh V. Leigh, 35 W. R. 121 ; 55 L. T. 634 
 
 Leinster (Dukeof), iZt-, 21 L. R.Ir. 152 
 
 Le Lievre r. Gould, [1893] 1 Q. B. 500 ; 62 L. ,J. Q. B. 353 ; 
 
 68 L. T. 626 ; 41 W, R. 468 
 
 Lemaun, Re, 22 Ch. D. 633 ; 31 W. R. 520 ; 52 L. J. Ch 
 
 48 L. T. 389 
 
 Le Marchant v. Le Marchant, 18 Eq. 414 ; 22 W. R. 839 ... 
 
 Leon, Re, [1892] 1 Ch. 348 
 
 Leonard ■(;. Sussex (Lord), 2 Ver. 526 
 
 Lepine, Re, Dowsett v. Culver, [1892] 1 Ch. 210 
 
 Leslie, Re, 2 Ch. D. 185 ; 24 W. R. 546 ; 45 L. J. Ch. 668 
 
 239 
 V. Baillie, 2'y. & C. C. C.91 ..." 
 
 132,362 
 ... 333 
 
 284,285 
 108,351 
 ... 317 
 ... 288 
 220. 237 
 ... 104 
 .. 209 
 143 ; 
 140, 152 
 89,91 
 ... 109 
 
 192. 334 
 113,369 
 ... 362 
 
 332. 335 
 257, 263 
 T. 
 ... 28 
 
 235, 236, 
 382, 385 
 ... 204 
 ... 159, 
 320, 325 
 178; 
 
 295 
 199 
 213 
 
 182 
 
 76 
 
 34 
 
 Le Touche r. Lucan (Earl), 7 C. & F. 672 
 
 Lever, Re, Cordwell v. Lever. [1897] 1 Ch. 32 
 
 Lewis, ii'^-7j«/f(', 1 Gl: & .J. 69 
 
 V. Madocks, 8 Ves. 1.50 ; 7 R. R. 10 
 
 V. Nobbs, 8 Ch. D. 591 ; 47 L. J, Ch. 662 : 'IQ W. R 
 
 156, 198, 23 
 
 v. Trask, 21 Ch. D. 862 
 
 Ley V, Ley, 6 Eq. 174 
 
 560; 
 291,303 
 ... 23 
 ... 295 
 99 
 163, 164 
 
 L.T. 
 
 ... 261 
 218, 219 
 ... 25 
 ... 181 
 266, 349 
 ... 20 
 
 631: 
 
 5, 237, 238 
 328 
 180
 
 Xlii TABLE OF CASES. 
 
 PAGE 
 Lidiard, Be. li Ch. D. 310 ; 28 ^Y. R. 574 ; 49 L. J. Ch. 373 ; 
 
 42 L. T. 621 307 
 
 Life Association of Scotland r. Siddal, 3 De G. F, & J. 58 ; 9 W. K. 
 
 541 : 4 L. T. (x.S.) 311 ; 7 Jur. (N.s.) 785 3fi9 
 
 Lightbody, Re, 33 W. E. 452 307 
 
 Liles V. Terry. [1895] 2 Q. B. 679 ; 65 L. J, Q. B. 34 : 73 L. T. 428 ; 
 
 44W. R. ne 72 
 
 Lingard r. Bromley, 1 V.&B. 114; 12 R.R. 195 374 
 
 Linquate v. Ledger, 2 Giff. 137 ... ... ... 70 
 
 Linyee, i?(', 23 Beav.241 277,281 
 
 Lister r. Hodgson, 4 Eq. 30 ; 15 ^Y . R. 547 7a 
 
 Little r. iS'eil. 10 W. R. 592 21 
 
 Livesey r. Livesey, 3 Russ. 287 ; 6 L. J. Ch. 13 388 
 
 Lloyd, i?e. 27 L. J. Ch. 246 298 
 
 r. Banks, 3 Ch. App. 448 394 
 
 r. Lloyd, 7 Eq. 458 ; 17 W. R. 702 : 38 L. J. Ch. 458 ; 
 
 20L. T.898 104 
 
 r. , 2 Sim. (K.s.) 255 44,50.62 
 
 V. . 4 Dr. & War. 554 151 
 
 Lloyd's Bank r.' Bullock. [1896] 2 Ch. 192; 65 L. J. Ch. G80; 
 
 74L. T. 687: 44 W. R. 633; 12T. L. R. 435 395 
 
 Loch V. Baylev. 4 Eq. 122 278 
 
 Lockhart r. Reilly, 1 D. & J. 464 ; 25 L. J. Ch. 697 ; 4 W. R. 438 ; 
 
 27L. T. 49 196,200,212,213.375,377 
 
 Locking v. Parker, 8 Ch. App. 30 ; 42 L. J. Ch. 35 ; 27 L. T. 635 ; 
 
 21W. R. 113 366 
 
 Lofthouse, i?^% 29 Ch. D. 921 258 
 
 London, etc. Banking Co. r. Loudon, etc. Bank, 21 Q. B. D.542 ... 108 
 
 ,etc. Co. r. DuEjgan. [1893] A. C. 506 391,394 
 
 & South Western Rail. Co. r. Gomm, 20 Ch. D. 562 ... 45 
 
 Joint Stock Bank r. Simmons. [1892] A. C. 201 399 
 
 Longley r. Longley, 13 Eq. 133 ; 20 W. R. 227 ; 41 L. J. Ch. 168 ; 
 
 25L. T. 736 104 
 
 Longton r. Wilsbv, 76 L. T. 770 126,245 
 
 Longuet r. Hockley. 22 L. T. 198 187 
 
 Lord and Fullerton. Re, [1896] 1 Ch.228 ; 65 L.J. Ch.l84 ; 73L.T. 
 
 689 ; 44 W. R. 195 135 
 
 Love, Be, Hill r. Spurgeon, 29 Ch. D. 348 323, 324 
 
 Low r. Bouverie, [ 1891] 3 Ch. 82 ; 60 L. J. 594 ; 65 L. T. 533 : 156, 255 
 
 V. Beers, Wil. Op. & Jud. 375 44 
 
 Lowndes, 7?p, 18 Q. B. D. 677 87 
 
 Lowry r. Fulton. 9 Sim. 115 ; 8 L. J. Ch. 314 ; 47 R. R. 188 ... 137 
 
 Lowthcr r. Carlton. 2 Atk. 242 39S 
 
 Lucan (Earl ot). 7A-. Ilardinge r. Cobden, 45 Ch. 1). 470 33 
 
 Luddy's Trustee r. Beard, 33 Ch. I). 500 251 
 
 Luke V. South Kensington Hotel Co., 11 Ch. I). 121 ; 27 W. R. 514 ; 
 
 48 L. J. Ch. 361 ; 40 L. T. 638 223, 234. 235 
 
 Lnpton r. White, 15 Ves. 432 ; 10 R. R. 94 352 
 
 Lyddon r. Ellison, 19 Heav. .565; 2 W. H. 690 100 
 
 Lynch I51ossc, Br. l{icliurds r. Lynch I'.losse (1899), W.N. 27 ... 175, 344 
 
 Lynn r. 15euver, T. .t 1{. 66 : 23"R. R. 185 104 
 
 Lyon r. Mitchell, W. N. (1899). 27 178 
 
 Ljsaght r. Edwards, 2 Ch. I). 499 ; 24 W. R. 778 ; 45 L. J. Ch. 554 ; 
 
 34 L. T. 7K7 287 
 
 LyBe r. Kingdom. 1 Coll. 1 SI 348 
 
 Lywterr. Burroughs, 1 Dr. 1*0 W. Il'.t 20
 
 TABLE OF CASES. xliii 
 
 M. 
 
 PAGE 
 M., lie, [1899] 1 Ch. 79 ; 68 L. J. Ch. 86 ; 47 W. R. 267 ; 79 L. T. 
 
 459 802,804 
 
 Maberley r. Turton, 14 Ves. 499 257, 262 
 
 Macdonald v. Irvine, 8 Ch. D., p. 112 ; 26 W.R. 381 ; 88 L.T. 155 ; 
 
 47L. J. Ch.494 166,169 
 
 Mackay r. Douglas, 14 Eq. 406 ; 20 W. R. 652 ; 41 L. J. Ch. 539 ; 
 
 26L. T. 721 80 
 
 Mackenzie's Trusts, ^e, 23 Ch. D. 750 20& 
 
 Mackie r. Herbertson, 9 App. Cas. 303 31 
 
 Mackiiinon r. Stewart, 1 8im. (N.s.) 88 ... ... ... ... 25 
 
 Mackintosh v. Pogose, [1895] 1 Ch. 505 ; 64 L. J. Ch. 274 ; 
 
 72 L. T. 251 ; 43 W. R. 247 81, 85, 87, 89 
 
 Mackreth r. Symmons, 2 Wh. & Tu. 926 ; 15 Ves. 329 ; 10 R. R. 85 : 
 
 129, 391 
 
 Maclean, J2f, 19 Eq. 282 333 
 
 Macnamara v. Carey, 1 Ir. R. Eq. 9 193 
 
 r. Jones, Dick, 587 ... 32^ 
 
 McCormick r. Grogau, L. R. 4 H. L. 82 ; 17 W. R. 961 »3, 
 
 55_57, 183 
 
 McDonnell v. White. 11 H. L. Cas. 570 371, 374 
 
 McEwen r. Crombie, 25 Ch. D. 175 328 
 
 McFadden v. Jenkyns, 1 Ph. 153 ; 1 Hare, 461 52, 54 
 
 M'Gachen r. Dew, 15 Beav. 84 882 
 
 M'Queen r. Farquhar, 11 Ves. 478 ; 8 R. R. 212 390 
 
 Maddever, Re, 27 Ch. D. 523 75 
 
 Maddock, Be, Butt v. Wright, [1899] 2 Ch. 588 ; 68 L. J. Ch. 655 ; 
 
 47 W. R. 684 ; 81 L. T. 320 324 
 
 Maddocks r. Wren, 2 Ch. Rep. 109 130 
 
 Magrath v. Morehead, 12 Eq. 491 278 
 
 Maguirer. Scully, 2 Hy. 113 97 
 
 Mahon -y. Stanhope, cit. 2 Sug. Pow. 412 160 
 
 Malcolm r. O'Callaghan, 3 My. & Or. 62 ; 45 R. R. 280 325 
 
 Manchester Royal Infirmary v. Attorney-General, 43 Ch. D. 420 ... 206 
 
 Mangles c. Dixon, 3 H. L. Cas. 702 391 
 
 Manning, Be, Kay, App. xxviii. ... 312 
 
 Mansel v. Norton, 22 Ch. D. 769 181 
 
 Mansell v. Mansell, 2 P. Wms. 678 397 
 
 Mansfield r. Shaw, 3 Madd. 100 ; 18 R. R. 201 357 
 
 Mara r. Browne, [1896] 1 Ch. 199; [1895] 2 Ch. 69 ; 65 L. J. Ch. 
 
 225 ; 78 L. T. 638 ; 44 W. R. 330 363, 379, 385- 
 
 Marker v. Marker, 9 Hare, 16 369 
 
 Marlborough (Duke of). Be, Davis r. Whitehead, [1894] 2 Ch. 133 ; 
 
 63 L. J. Ch. 471 ; 70 L. T. 814 ; 42 W. R. 456 53, 58- 
 
 Marler v. Tommas, 17 Eq. 8 ; 22 W. R. 25 ; 43 L. J. Ch. 73... 32, 37 
 
 Marner, iZt', 3 Eq. 432 179,187 
 
 Marples y. Bainbridge, Madd. 590 ; 16 R. R. 271 44 
 
 Marris r. Ingram, 13 Ch. 1). 338 132 
 
 MsiMfih, Ex jmrte, I Aik.l^'i 1'19' 
 
 r. Hunter, 6 Madd. 295 34a 
 
 Marshall v. Crowther, 2 Ch. D. 199 178, 180 
 
 r. Crutwell, 20 Eq. 328 117 
 
 r. Gingell, 21 Ch. D. 790 ; 31 W. R. 63 ; 51 L. J. Ch. 818 ; 
 
 47 L.T. 159 141,146,147 
 
 r. Sladden. 4 D. & S. 468 328 
 
 Martin, ^<', [1900] W. N. 129 340
 
 xliv TABLE OF CASES. 
 
 PAGE 
 
 Martin, Re, Land, etc. Improvement Co. v. Martin, 34 Ch. D. 618 ... 317 
 
 r. Lavertou. 9 Eq. 658 ; 18 W. R. 561 ; 39 L. J. Ch. 166 ; 
 
 22L. T. 700 288 
 
 V. IMartin. 2 R.y. & M. 567 ; 54 R. R. Ii3 43 
 
 :Martin's Trusts, Re, W. N. (1886), 183 305 
 
 Martins r. Joliffe. A mb. 313 390 
 
 Martyn, i?d', 26 Ch. D. 745 295 
 
 Mason. Re, Mason r. Mason, [1891] 3 Ch. 467 47 
 
 V. Mason. W. N. (1878). 41 313 
 
 Massey r. Banner, 1 J. & \Y. 347 ; 4 Mad. 413 ; 21 R. R. 150 ... 188 
 
 IMassingbird, Re. Clark v. Trelawney, 63 L. T. 296 ... 159, 200, 213, 344 
 
 Massy r. Gahan, 23 L. R. Jr. 518 177 
 
 Matthew v. Northern Assurance Co., 9 Ch. 1). 80 ; 47 L. J. Ch. 562 ; 
 
 38L. T. 468 332 
 
 Matthews r. Brise, 6 Beav. 239 233 
 
 r. Feaver, 1 Cox. 272 75 
 
 Matthias r. Matthias, 3 Sm. & G. 552 ; 32 L. T. 25 ; 4 Jur. Tn.S.) 
 
 780 ' ... 321 
 
 Matthison v. Clarke, 3 Dr. 3 130 
 
 May r. Taylor, 6 M. & G. 261 150 
 
 Medland, Re, Eland v. Medland, 11 Ch. D. 476 191 
 
 Medlock, Re, Ruffle v. Medlock, 54 L. T. 828 271 
 
 Meinertzhatren r. Davis. 1 Coll. 335 ... ... ... 295 
 
 Mennard (OWelford, 1 Sm. & G. 426 297 
 
 Mercer, Ex jmrte, Wise, Re. 17 Q. B. D. 290 ; 54 L. T. 720 ...77, 80 
 
 Merryweather v. Jones, 4 Giff. 509 43 
 
 Metcalfe, Re, 2 De G. J. & S. 122 333 
 
 V. Pulvertoft, 1 V. & B. 184 ; 13 R. R. 63 93 
 
 Metham v. Duke of Devon, 1 P. Wms. 529 49 
 
 Meyer r. Simonsen, 5 De G. & S. 723 175 
 
 Michell, Re, 6 Ch. D. 618 ; 36 L. T. 915 ; 35 W. R. (Dig.) 251 ... 28 
 
 Michells c. Corbett, 34 Beav. 376 260 
 
 Middletou v. Dodswell, 18 Ves. 266 356 
 
 *•. Bollock, 4 Ch. D. 49 ; 25 W. R. 94 ; 46 L. J. Ch. 39 ; 
 
 35L. T. 608 52,84,355 
 
 r. Spicer, 1 Bro. C. C. 201 152 
 
 Midglev v. ^Slidi^rley, [1893] 3 Ch. 282 ; 69 L. T. 241 ; 41 ^Y. R. 659 : 385 
 
 Mill r. Ilill. 3 H. L. Cas. 828 126 
 
 Millard r. Eyre. 2 Ves. 94 291 
 
 Millar's Trustees r. Poison, 34 Sc. L. R. 798 155, 190, 367 
 
 Miller /•. Iliuldieston. 3 M. & G. 513 182 
 
 r. Miller, 13 Eq. 263 ; 20 W. R. 324 ; 41 L. J. Ch. 291 : 167. 172 
 
 V. Priddou. 1 D. M. & G. 335 295 
 
 —r. Race, 1 Bar. 451 353 
 
 Milligan r Mitchell, 1 My. & K. 446 ; 45 R. R. 218 358 
 
 Mills, Re, 37 Ch. 1). 312 ; 40 Ch. D. 14 287, 313 
 
 r. Osborne. 7 Sim. 30 ; 40 R. R. 66 208 
 
 Milncr, //r, 14 Eq. 245 279 
 
 r. Ilarewood (Lord), 18 Ves. 259 73 
 
 Milroy r. Lord, 4 De G. F. & J. 264 ; 35 L. J. Ch. 798 ; 6 L. T. 875 ; 
 
 8 Jur. (N.H.) HOS 28.37 
 
 Minors c. Uattison. I App. Cas. 428 ; 35 L. T. 1 272 
 
 Mitchell v. Homfray. S Q. IJ. I). 587 ; 29 \V. R. 558 71 
 
 Mitcliclson r. Piper, 8 Sim. 64; 5 L. J. (N.S.) Ch. 294 ; 42 R. R. 
 
 104 272,273 
 
 Mitford r. Kcynolds, 16 Sim. 105 <i4 
 
 Moggridge /•.■Tlmckwrll, 3 I5ro. C. C. 52S ; 6 K. K. 7(1 19 
 
 Molton r. Camroux, 2 Exch. 1S7 ; ullinncd I lOxcli. 17 ... ... 61
 
 TABLE OF CASES. xlv 
 
 PAGE 
 Molyneux r. Fletcher, [1898] 1 Q. B. 648 ; 67 L. J. Q. B. 392 ; 
 
 78 L. T. Ill ; 46 W. R. 576 247,356,381 
 
 Money Kyrle, Er, 49 W. K. 44 2S3 
 
 , Re, Money Kyrle i: Money Kyrle, [1900] W. N. 171... 281 
 
 Montetiore r. Brown, 7 H. L. Cas. 241 ; 4 Jur. (N.s.) 1201 25 
 
 r. Guedalla, W. N. (1868), p. 67 211 
 
 Montford (Lord) r. Cadogan (Lord), 17 Ves. 485 ; 19 Ves. 9 ; 13 R. R. 
 
 270 136,369 
 
 Moody, Be, [1895] 1 Ch. 101 271 
 
 Moore, i?^ Mc Alpine r. Moore, 21 Ch. D. 778 303,305 
 
 V. Froud, 3 My. & Cr. 48 ; 45 R. R. 205 240 
 
 r. Knight, [1891] 1 Ch. 547 365,386 
 
 Moravian Society, Re, 26 Beav. 101 ; 4 Jur. (k.s.) 703 ; 6 AV. R. 
 
 851 291,297 
 
 More V. Mahow, 1 Ch. Ca. 34 391 
 
 r. More, 37 W. R. 414 87 
 
 Morgan, ^a; ;;«r^f, 10 Ves. 101 288 
 
 ■ , Re, Pillgrem v. Pillgrem, 18 Ch. D. 93 ; 30 W. R. 223 ; 
 
 .50 I.. J. Ch. 834 ; 45 L. T. 183 125, 398 
 
 r. Elford, 4 Ch. D. 352 ; 25 W. R. 136 382 
 
 ■ V. Hardy, 13 App. Cas. 354 41 
 
 V. Malleson, 10 Eq. 475 ; 18 W. R. 1125 ; 39 L. J. Ch. 493 ; 
 
 22 L. T. 595 36 
 
 r. Stephens, 3 Giff. 226 385 
 
 v. Swansea Local Board. 9 Ch. D. 582 ; 27 \V. R. 283 ... 286 
 
 Morice r. Bishop of Durham, 9 Ves. 399 ; 10 Ves. 522 107 
 
 Morland v. Cook, 6 Eq. 252 397 
 
 Morley, Re, 10 Hare, 293 288 
 
 , Re, Morley i\ Haig, [1895] 2 Ch. 738 ; 64 L. J. Ch. 727 ; 
 
 73 L.T. 151 ; 44 W. R. 140 171, 177. 182 
 
 T. Loughnan, [1893] 1 Ch. 736 ; 62 L. J. 515 ; 68 L. T. 619 
 
 66, 68, 71 
 
 i: Morley, 25 L. J. Ch. 7 ; 5 De G. M. & G. 610 131 
 
 r. Reynoldson, 2 Hare, 570 ... ...44,51 
 
 Morris r. Livie, 1 Y. & C. C. C. 380 387 
 
 Morrison r. Morrison, 4 Kay & J. 458 ... 320 
 
 Morse r. Royal, 12 Ves. 374 ; 8 R. R. 338 244 
 
 Mortimer r. Ireland, 11 Jur. 721 ; 11 L. J. Ch. 416 288 
 
 Mortlock V. Buller, 10 Ves. 309 ; 7 R. R. 417 160 
 
 Morton and Hallett, iZ.", 15 Ch. D. 143 289,290 
 
 Moseley, Re, 18 W. R. 126 ; 21 L. T. 384 332 
 
 Mosley r. Ward, 11 Ves. .581 ; 8 R. R. 249 344 
 
 Moss, i'a; ;jarte, 3 Drew. & Sm. 599 130 
 
 V. Cooper, 1 J. & H. 352 .58 
 
 Motz V. Moreau, 13 M. V. C. 376 73 
 
 Moxham r. Grant, [1900] 1 Q. B. 92 133 
 
 Moyle r. Moyle. 2 Russ. & M. 710 ; 34 R. R. 186 156, 198, 233 
 
 Mucklow V. Fuller, Jac. 198; 23 R. R. 29 137, 367 
 
 Muffet, ^(% Jones r. Mason, 39 Ch. D. 534 180 
 
 MuHn r. Blagrave, 25 Beav. 137 217 
 
 Munch r. Cockerell, 5 My. & Cr. 179 ; 6 L. J, Ch. (x.S.) 9 ; 42 R. R. 
 
 165 2.34 
 
 Murch I'. Russel, 3 My. & Cr. 31 369 
 
 Murphy, Re, [190U] 1 Ir. R. 145 2.58 
 
 r. Doyle, 29 L. R. Ir. 333 207 
 
 Mussoorie Bank r. Raynor, 7 App. Cas. 321 ; 46 L. T. 633 ... 15, 18, 23 
 
 Mutton r. Peate. [1900] 2 Ch. 79 355,393 
 
 Mutual Provident Society r. Macmillan, 14 App. Cas. 596 ... ... 36
 
 xlvi 
 
 TABLE OF CASES. 
 
 PAGE 
 Mycock r. Beatson. 13 Ch. D. 384 ; 28 W. R. 319 ; 49 L. J. Ch. 127 ; 
 
 42L. T. 141 132 
 
 N. 
 
 Kail V. Punter, o Sim. 555 ; 35 R. R. 188 
 Nandick r. Wilkes, Gil. Eq. Rep. 114 ... 
 Nanney v. Morgan, 37 Ch. D. 346 
 
 r. Williams, 22 Beav. 452 
 
 Nash, Ee, 16 Ch. D. 503 ; 29 W. R. 294 
 
 369, 370 
 
 ... 97 
 
 ... 83 
 
 ... 71 
 
 ... 317 
 
 ... 141 
 
 ... 146 
 
 ... 150 
 
 ... .399 
 
 895 ; 16 W. R 
 431 ... '.'.'. 
 
 321 
 206 
 
 260 
 
 238,239 
 61,111 
 
 138 
 
 282 
 
 61 
 
 239 
 
 40,43 
 
 274 
 
 168 
 
 226, 241 
 2 Q. B. 19 ; 
 13 T. L. R. 
 
 ... 26,35,52 
 J. Ch. 262 ; 
 314 
 
 V. Allen, 1 H. & C. 167 
 
 r. Coates, 3 B. & Ad. 839 ; 37 R. R. 552 
 
 r. Preston, Cro. Car. 190 
 
 Natal Investment Co., Be, 3 Ch. App. 355 
 National Finance Co., Me, 3 Ch. App. 791 ; 18 L. T. 
 
 994 
 
 National Permanent Building Society, Be, 43 Ch. D 
 Naylor r. Arnitt, 1 Russ. & M. 501 ; 32 R. R. 254 
 Neale t\ Davis, 5 De G. M. & G. 258 ; 2 W. R. 358 
 
 V. Neale, 79 L. T. 629 ; 13 T. L. R. 20 ... 
 
 Needham, Be, 1 Jo. & Lat. 34 
 
 Neil, Be, Hemming r. Neil, 62 L. T. 649 
 
 r. Morley, 9 Ves. 478 
 
 Neligan r. Roche, Ir. Rep. 7 Eq, 332 
 
 Nelson v. Bridport, 8 Beav. 574 ... 
 
 Nettlefold, Be, .59 L. T. 315 
 
 Neville r. Fortescue, 16 Sim. 333 
 New V. Jones, 1 Mac. & G. 688 n. 
 New. Prance and Garrand's Trustee r. Hunting, [1897] 
 
 66 L. J. Q. B. 554 ; 76 L. T. 742 ; 45 W. R. 577 ; 
 
 397 
 New Zealand, etc. Co., Be, [1893] 1 Ch. 403 ; 62 L. 
 
 68 L. T. .593 
 
 Newen, Be, Newen v. Barnes, [1894] 2 Ch. 297 ; 63 L, J. Ch. 763 ; 
 
 70 L. T. 653 ; 43 W. R. 58 283,296,308 
 
 Newman v. Newman, 28 Ch. 1). 674 ; K; R. R. 386 251 
 
 Ncwsome ■/•. Flowers, 30 Beav. 461 ... ... ... ... ... 238 
 
 Newstead r. Searlcs. 1 Atk. 264 31 
 
 Newton r. Askew. 11 Beav. 145, 152 252,253 
 
 V. Newton, 4 Ch, App. 143 ; 17 W. R. 238 ; 19 L. T. 588 ; 
 
 38L. J. Ch. 145 398 
 
 Nichels, Be, Nichcls v. Nichels, [1898] 1 Ch. 630 ; (i7 L. J. Ch. 406 ; 
 
 78 L, T. 379 ; 46 AV. K. 422 164,165 
 
 Nicholson r. Field. [1893] 2 Ch. 511 299 
 
 r. Knowles. 5 Madd. 47 ; 21 R. R. 276 239 
 
 r. Tnttin, 2 Kay & J. 23 25 
 
 Nickisson r. Cockliill, 3 I). & S. 62:i 259 
 
 Mglitinguk- r. I.awson, 2 Hro. C. C^. 44() 179 
 
 Noad r. Hackhouse, 2 Y. ic C. C. C. 529 356 
 
 Noel c. Jcvon, Frccni. 43 150,151 
 
 Norcutt r. Dodd, Cr. & Ph. 1(10 75 
 
 Norfolk's (Duke ol) Case, 3 Ch. Ca. 35 ; 6 Ch. Ca. 5 ; 1 Vern. 161 : 43 
 
 Norris, yi'./-y/rt//r, 4 Ch. App. 2.S0 348 
 
 , y/r, Allen c. Nonis, 27 Ch. i). 333 296,307 
 
 r. Wright, 14 Hniv. 3(IS 196, 2(10, 212, 213 
 
 North r. Cromiildii, 1 Ch. Cu. 196 104
 
 TABLE OF CASES. xlvii 
 
 PAGE 
 
 Northage, lie, Ellis v. Barfield, 60 L. J. Ch. 488 161, 162 
 
 Northern Counties, etc. Insurance Co. v. Whipp, 26 Ch. D. 4S2 : 7, 90 
 
 Norton r. Johnstone, 30 Ch. D. 649 178,180 
 
 r. rritchard, Reg. Lib. B. (1844), 771 199 
 
 Nunneley v. Nunneley, April 18th, 1883 249 
 
 o. 
 
 Occleston r. Fullalove, 9 Ch. App. 147 ; 22 W. R. 305 ; 43 L. J. Ch. 
 
 297 ; 29 L. T. 785 49 
 
 Oceanic, etc. Co. v. Sutherberry, 16 Ch. D. 237 196 
 
 Official Receiver v. Jackson, [1899] A. C. 419 ; 68 L. J. Q. B. 866 ; 
 
 80 L. T. 841 ; 15 T. L. R. 418 87 
 
 Ogle, Ej; parte, 8 Ch. App. 715 ; 21 W. R. 938 268, 341 
 
 Oldham v. Oldham, 3 Eq. 404 ; 15 W. R. 300 ; 36 L. J. Ch. 205 ... 281 
 Olive, Re, Olive v. Westerman, 34 Ch. D. 70 ; 56 L. J, Ch. 75 ; 
 
 55 L. T. 583 214 
 
 Oliver v. Court, 8 Pr. Ch. 165 ; 22 R. R. 720 195, 223, 225 
 
 Onslow r. Wallis, 1 M. & G. 506 153 
 
 Ord I'. Noel, 5 Madd. 440 ; 21 R. R, 328 195 
 
 «. White, 3 Beav. 357 391 
 
 Orr V. Newton, 2 Cox, 276 197 
 
 Orrett r. Corser, 21 Beav. 52 193 
 
 O'Rorke v. Bolingbroke, 2 App. Cas. 814 ; 26 W. R. 239 70 
 
 Osborne and Rowlett, Rr, 13 Ch. D., p. 789 ; 28 W. R. 365 ; 49 L. J. 
 
 Ch. 310 ; 38 L. T. 195 288,289,290 
 
 Osgood V. Strode, 2 P. Wms. 245 29 
 
 Osmond v. Fitzroy, 3 P. Wms. 129 66 
 
 Ottley r. Gilby, 8 Beav. 602 252,2.53,255 
 
 Ovey v. Ovey, [1900] 2 Ch. 524 158 
 
 Owthwaite, Re, Owthwaite c. Taylor, [1891] 3 Ch. 494 ... 158, 204 
 Owen V. Delamere, 15 Eq. 134 ; 21 W. R. 218 ; 42 L. J. Ch. 232 ; 
 
 27L. T. 647 151 
 
 Owens, i?<;, 47 L. T. 61 190,192,268 
 
 Packman and Moss, Re; 1 Ch. D. 214 ; 24 W. R. 170 ; 45 L. J. Ch. 
 
 54 ; 34 L. T. 100 288 
 
 Paddon v. Richardson. 7 De G. M. & G. 563 ; 26 L. T. 33 ; 19 Jur. 
 
 1192 135,197 
 
 Page, Re, Jones v. Morgan, [1893] 1 Ch. 304 ; 62 L. J. Ch. 592 ; 
 
 41 W. R. 357 252,253.364 
 
 Paine, iZe, 33 W. R. 564 306 
 
 Palairet v. Carew, 32 Beav. 567; 11 W. R. 449; S L. T. 139; 
 
 9 Jur. (N.s.) 426 199,291,328 
 
 Palk, i2r, 41 W. R. 28 376 
 
 Palmer r. Young, 1 Vern. 276 127 
 
 Papillon i: Voice, 2 P. Wms. 471 »9 
 
 Parker, Re, [1894] 1 Ch. 707 285 
 
 and Beech, Re, 56 L. J. Ch. 358 ; 56 L. T. 95 ; 35 W. R. 
 
 353 392 
 
 V. Bolton, 5 L. J. (N.S.) Ch. 98 ; 42 R. R. 285 99
 
 xlviii TABLE OF CASES. 
 
 PAGE 
 Parker r. Calcraft, 6 Madd. 11 130 
 
 r. Carter, 4 Hare, 409 91 
 
 Pamell r. Steadman. 1 C. & E. 153 82,83 
 
 Parrott. i?*', 30 W. E. 97 307 
 
 , Be. Walter r. Parrott, 33 Ch. D. 274 97 
 
 r. Sweetland. 3 My. & K. 655 ; 41 R. R. 164 129 
 
 Parsons. He, Stockier r. Parsons, 62 L. T. 929 ; 45 Ch. D. 51 : 60, 356 
 
 Pass r. Dimdas. 29 "\V. R. 332 ; 43 L. T. 665 368 
 
 Paterson r. Paterson, 2 Eq. 31 314 
 
 Patman r. Harland. 17 Ch. D. 355 ; 29 W. E. 207 ; 50 L. J. Ch. 642 ; 
 
 44L. T. 72LS 396 
 
 Patrick, Be, Bills r. Tatham. [1891] 1 Ch. 82 32, 34 
 
 r. Simpson, 24 Q. B. D. 128 : 59 L. J. Q. B. 7 ; 61 L. T. 686 : 36G 
 
 Patten v. Edmonton Guardians. 31 W. E. 785 ; 52 L. J. Ch. 787 ; 
 
 48 L. T. 870 351,353 
 
 Patterson r. Woolen. 2 Ch. D. 586 328 
 
 Paul r. Compton, 8 Ves. 380 ; 7 E. E. 81 22 
 
 Paul r. Paul, 20 Ch. D. 742 ; 30 W. E. 801 33 
 
 Pawlett r. Att.-Gen., Hard. 494 43 
 
 Pawson r. Brown. 13 Ch. D. 202 ; 28 W. E. 652 ; 49 L. J. Ch. 193 ; 
 
 41L. T. 339 61,111 
 
 Payne. Be, Kibble r. Payne. 54 L. T. 840 126, 246 
 
 v. Evans. 18 Eq. 356 253 
 
 Peacock, i?<'. 14 Ch. D. 212 315 
 
 r. Burt, 4 L. J. Ch. 33 398 
 
 r. Colling. 33 W. E. 528 301 
 
 r. Monk. 2 Ves. sen. 190 63 
 
 Peake, Be. [1894] 3 Ch. 520 ; 71 L. T. 371 ; 42 W. R. 687 308 
 
 Peard v. Kekewich, 15 Beav. 173 ... ... ... 100 
 
 Pearks r. Moseley, 5 App. Cas. 714 46 
 
 Pearse r. Green, 1 Jac. & W. 140 ... ... ... 252 
 
 Pearson. Be, 3 Ch. D. 807 ; 25 W. R. 126 : 35 L. T. 68 ... 48, 81 
 . i?f, Oxley r. Scarth, 51 L. T. 672 228 
 
 r. Amicable Ass. Co. 27 Beav. 229 ; 7 W. R. 629 33 
 
 Pease, A'j-ywr/f, 19 Ves. 46 149 
 
 Pechel v. Fowler. 3 Anst. 550 ; 3 E. E. 627 195, 358 
 
 Pemberton r. Gill. 1 Drew. & Sm. 266 380 
 
 Pennell r. Dettell, 4 De G. & M. G. 372 ; 1 W. R. 499 352 
 
 Perrins v. Bellamv, [1898] 2 Ch. 524 : 68 L. J. Ch. 397 ; 47 W. R. 
 
 417 ; 80 L. f . 478 361 
 
 Perry, Be, 2 Curt. 6.55 137 
 
 Peters r. Lewes and E. Grinstead Eail. Co. IS Ch. D. 429 279 
 
 Peterson r. Peterson, 3 Eq. 111... ... 388 
 
 Pethybridfre r. liurrows, 53 L. T. 5 37 
 
 IVtre r. I'ctre. 1 Drew. 371 ; 1 W. E. 362 ; 2 L. T. 136 366 
 
 Peyton, Be, 7 Ivj. 463 202 
 
 Phelps, Be, 31 Ch. D. 351 ; 54 L. T. 480 291, 303 
 
 Phillips, 7.V.Cr.& Ph. 147 317 
 
 /•. .Tiimes, 2 I)c G. & Sm. 404 ; 13 W. R. 934 97 
 
 r. Mailings, 7 Ch. App. 244 ; 20 W. E. 129 ; 41 L. J. Ch. 
 
 211 ■ 66—68 
 
 r. Phillips, 20 Ch. D. 673 126 
 
 -, 4 De G. F. & J. 208 391 
 
 r. I'rol.yn, [1899] 1 Ch. 811 ; i>S L. J. Ch. 401 ; 80 L. T. 
 
 513 110 
 
 PhippH ?•. Lovcgrove, 16 Kq. SO 15(5 
 
 Pickard 7-. Anderson. 13 E(i. (JOS; 26 L. T. 725 
 
 Pickering r. Pickering, 4 .My. & Cr. 289 
 
 208 
 165
 
 TABLE OF CASES. xlix 
 
 PAGE 
 
 Pickering r. Stamford, 2 Ves. 272 All 
 
 rLado;ke ('. Burt, [18'Ji] 1 Ch. 343 ; 03 L. J. Cli. 2i(; ; 70 L. T. 5.>3 ; 
 
 42VV. R. 24S 127,131 
 
 Piercy ;;. Roberts, 1 My. & K. 1 ; 36 U. R. 239 ; 2 L. J. (n.s.) Ch. 
 
 17 48 
 
 Pilcher v. Rawlins, 7 Ch. App. 25i) ; 41 L. J. Ch. 485 ; 20 \V. R. 
 
 281 ; 2.T L. T. !)21 3'.)1, 3!)2 
 
 Pilling, H/', 26 Ch. D. 432 312 
 
 Pine (,'. Coop>r, 17 Beav. 187 182 
 
 Pitcairn, Re, Brandreth v. Colvin, [1896] 2 Ch. 199 ; 63 L. J. Ch. 
 
 120; 73 L. T. 430 ; 44 W. R. 200 168, 177 
 
 Pitt (\ Pelham. Freem. 134 19 
 
 Pixton and Tong, 7?'A 46 W. R. 187 2S9 
 
 Platamore r. Staple, Coop. G. 250 109 
 
 Playfair ('. Cooper, 17 Beav. 187 180 
 
 Plowright i\ Lambert, 52 L. T. (i46 247 
 
 Plympton /■. Dispensary, 106 Mass. 544 ... ... ... ... 182 
 
 Pocock ('. Beddiugton, 5 Ves. 794 208 
 
 Pole c. Pole, 1 Ves. sen. 76 ; 2 Drew. & Sm. 420 117, 127 
 
 Poaie t'. Pass, 1 Beav. 600 187 
 
 Pooley V. Qailter, 4 Drew. 189 : 6 W. R. 402 : 27 L. .J. Ch. 374 ; 
 
 31 L. T. 64 ; 4 Jur. (N.s.) 345 249 
 
 Pope, iZ^', Sharp /■. Marshall, [19011 1 Ch. 64 178 
 
 Porter, Re, Conlson r. Capper, [1892] 3 Ch. 481 : 61 L. J. Ch. 638 ; 
 
 67L. T. 823 281 
 
 — - r. Baddeley, 5 Ch. D. 542 166, 169 
 
 Postlethwaite, R<-, Postlethwaite r. Rickman, 37 W. R. 200 ; 60 L. T. 
 
 514 248 
 
 Potts T. Britton, 11 Eq. 433 ; 19 W. R. 651 ; 24 L. T. 409 208 
 
 Powell f. Hulkes, 33 Ch. D. 552 217 
 
 I'. London and Prov. Bank, [1893] 2 Ch. 555 ; 41 W. R. 
 
 545 391,399 
 
 K Matthews, 1 Jur. (x.s.) 973 313 
 
 r. Powell, [1900] 1 Ch. 243 72 
 
 r. Price, 2 P. Wms. 535 97 
 
 Pratt, Re, W. N. (1886), 144 ; 34 W. R. 757 ; 55 L. T. 313 ... 310 
 
 r. Sladden, 14 Beav. 193 104 
 
 Prevost V. Clarke, 2 Madd. 458 22 
 
 Price V. Berrington, 2 M. & G. 486 61 
 
 V. Blakemore. 6 Beav. 507 ... ... ... ... ... 355 
 
 V. Jenkins, 5 Ch. D. 619 ; 26 W. R. 427 ; 37 L. T. 51 ; 
 
 46 L. J. Ch. 85 92 
 
 V. Price, 42 L. T. 636 342 
 
 Prichard r. Ames, Turn. & R. 222 19 
 
 Pride r. Fooks, 2 Beav. 430 ... 328 
 
 Priest V. Appleby, 42 Ch. D. 351 ; 61 L. T. 146 ; 38 W. R. 159 ... 214 
 Priestley v. Ellis, [1897] 1 Ch. 489 ; iiH L. J. C;h. 240 ; 76 L. T. 
 
 187 ; 45 W. R. 442 25, 26 
 
 Priestman r. Tindall, [1897] 2Ch. 825: 24 Beav. 244 375 
 
 Printers, etc. Society, Re, [1899] 2 Ch. 184 ; 68 L. J. Ch. 537 ; 
 
 47 W. R. 619 ; 'l5 T. L. R. 394 107 
 
 Proctor i\ Robinson, 35 Beav. 329 ; 15 W. R. 138 ; 15 L. T. 431 ... 50 
 Prodgers r. Langham. Keb. 486... ... ... ... ... ... 5^9 
 
 Pryce v. Bury, 2 Dr. 42 ; 2 W. R. 87, 216 ; 22 L. T. 324 130 
 
 Pryor, Re, 35 L. T. 202 '2'^*i 
 
 Pugh, Re, W. N. (1887), p. 143 207 
 
 Pumphrey, Re, Worcester, etc. Bg. Co. r. Blick, 22 Ch. D. 255 ... 324, 
 
 327,352
 
 1 TABLE OF CASES. 
 
 PAGE 
 
 Pybus r. Smith, 3 B. C. C. 340 281 
 
 Pye, Ex parte, 18 Ves. 140 ; 2 W. & T. L. Ca. 366 28 
 
 E. 
 
 Raby r. Ridehalgh. 7 De G. M. & G. 104 ; 3 W. E. 344 ; 25 L. T. 
 
 19; 19. Fur. 363 161,379 
 
 Rackstraw, iZc, 52 L. T. 612 ; 33 W. R. 559 312 
 
 Radcliffe, Re, European As.*. Society v. Radcliffe, 7 Ch. D. 733 ... 274 
 
 Raike.sr. Raike.*, 35 Beav.403 306 
 
 Ramskill v. Edwards, 31 Ch. D. 100 ; 34 W. R. 96 ; 53 L. T. 949 ... 376 
 
 Randall r. Errington, 10 Ves. 427; 8 R. R. 18 244 
 
 Ranelagh (Lord). i?<% 26 Ch. D. 590 126,245 
 
 Ratcliff. Re, [1892] 2 Ch. 352 ; 67 L. J. Ch. 562 ; 78 L. T. 834 ... 340 
 Rathbone, Re, 2 Ch. D. 483 ; 45 L. J. Ch. 531 ; 24 W. R. 566 : 305, 315 
 
 Raybould Re, Raybould r. Turner, [1900] 1 Ch. 199 322 
 
 Ray.sdale r. Ravsdale, 68 Miss. 92 ... ... ... ... ... 57 
 
 Redding, Re, Thompson r. Redding, [1897] 1 Ch. 876 ; 66 L. J. Ch. 
 
 46U ; 76 L. T. 339 ; 45 W. R. 457 185 
 
 Redington r. Redington, 3 Ridge, 197 ; 12 R. R. 5 117, 131 
 
 Redman r. Rymer, 60 L. T. 385 322,394 
 
 Reese River Co. c. Atwell, 7 Eq. 347 ; 17 VV. R. 601 ; 20 L. T. 163 : 79 
 
 R. r. Stapletou, 4 B. & S. 629 ... 151 
 
 R. r. Sterry, 12 A. & E. 84 151 
 
 Rehden r. Wesley, 29 Beav. 213 233 
 
 Reid r. Rcid, 31 Ch. D. 402 60 
 
 Revel v. Watkinson, 1 Ves. 93 180 
 
 Reynell r. Spry, 1 De G. M. & G. 660 109 
 
 Reynolds r. Godlee, John. 536 122,123 
 
 Richards, Re, Shenstone r. Brock, 36 Ch. D. 541 ... ... ... 28 
 
 r. Delbridge, IS Eq. 11 ; 22 W. R. 584 ; 43 L. J. Ch. 
 
 459 28,36 
 
 Richardson, Re, Morgan v. Richardson, [1896] 1 Ch. 512 ; 65 L. J. Ch. 
 
 512; 74 L. T. 12; 44 W. R. 279 164 
 
 , Re. Richardson r. Richardson, [1900] W. N. 3 ; [1900] 
 
 2 CIi. 778 281,282 
 
 r. Richardson. 3 Eq. 686 ; 15 W. R. 690 ; 36 L. J. Ch. 
 
 653 36 
 
 Richer.-<on. lie, Scales r. Ileyhoe, [1892] 1 Ch. 379 ; i\\ L. J. Ch. 
 
 202 ; 66 L. T. 174 120,124 
 
 Rickanl /•. Kuli.-;nii, 31 Beav. 244 62 
 
 Kicketts r, Hickctts. 64 L. T. 263 .381 
 
 J{ider r. Kid<ler, ID Ves. 360 75,108,113 
 
 Ridler, 7^^.22 Ch. D. 74 ; 31 \V. R. \Y.\ ; 52 L. .1. Ch. 343 ; 48 L. T. 
 
 396 83.91 
 
 Rigden r. Viillier, 3 Atk. 735 114 
 
 Rigiey, 7/r, 1 \V. R.3I2 61 
 
 liingham r. Lee, 15 Sim. 400 130 
 
 |{ipcrr. .Moulton, 72 Cii. 155 64 
 
 Ritsoii v. Sturdy, 3 Sill. \: (;. 230 62 
 
 |{..l.crts, lie. \1 \V. R. 639; !.. ){. 4 Ch. Apj). 561 : 38 L. J. Ch. 
 
 4.SH 333 
 
 , //r, Kiii^ilit r. l{()l.crts, 7(; L. 'I\ 179 361 
 
 R.ibinx.ii /■. Iliukin. IIS'.ICI 2 Cli. 115 ; (15 L. .1. Cli, 773; 74 L. T. 
 
 777 : 14 W. R.702 221,223,224.376,377
 
 TABLE OF CASES. li 
 
 PAGE 
 
 Kobinson r. Pett, 3 P. Wms. 251 130, 134, 240 
 
 r. Preston, 4 Kay & J. 505 114 
 
 V. Kobinson, 1 De G. M. & G. 252 191, 197, 201, 343 
 
 Kobson r. Flight, 4 J)e G. J. & S. (508 ; 13 W. K. 893 ; 34 L. J. Ch. 
 
 226, 311 ; 12L. T. 725 ; 11 Jnr. (N.S.) 147 19,28,224 
 
 Kochefoucauld v. Boustead, [1897] 1 Ch. 19(5 ; [1898] 1 Ch. 550 ; 
 
 66 L. J. Ch. 44 ; 75 L. T. 502 ; 13 T. L. R. 118 : 45 W. K. 
 
 272 53, 58, 113, 133, 243, 3fi5 
 
 Hodbard r. Cooke, 25 W. K. 555 ; 36 L. T. 504 237 
 
 Kogers v. Rogers, 3 P. Wms. 193 105 
 
 Roife V. Gregory, 11 Jur. (N.S.) 98 ; 13 W. R. 355 ; 34 L. J. Ch. 
 
 274 ; 12 L. T. 162 382, 3S3 
 
 Rollfe v. Budder, Bunb. 187 19 
 
 Romford Canal Co., Be, 24 Ch. D. 85 399 
 
 Roots 1-. Williamson, 38 Ch. 1). 485 36 
 
 Roper Curzon v. Roper Curzon, 11 Eq. 452 ; 19 W, R. 519 ; 24 L. T. 
 
 406 262 
 
 Rose V. Bartlett, Cro. Car. 292 285 
 
 r. Watson. 10 H. L. Cas. 672 132 
 
 Kosher v. Williams, 20 Eq. 210 ; 23 W, R. 561 : 44 L. J. Ch. 419 ; 
 
 32L. T. 387 91 
 
 Roth, i?^, Goldberger r. Roth, 74 L. T. 50 201,235 
 
 Rowbotham r. Dunnett, 8 Ch, D. 430 ; 26 W. R. 529 ; 47 L. J. Ch. 
 
 449 ; 38 L. T. 278 113 
 
 Rowland r. Morgan, 13 Jur. 23 ... ... ... ... ... ... 335 
 
 r. Witherden, 3 M. & G. 568 228 
 
 Rowley r. Adams, 2 H. L. Cas. 725 ; 2 L. J. (N.S.) Ch. 143 192 
 
 Rowlls ?•. Bebb, [1900] 2 Ch. 107 171,177 
 
 Royds v. Royds, 14 Beav. 54 ... ... 214 
 
 Royle, Be, 43 Ch. D. 18 331 
 
 Rudkin /•. Dolman, 35 L. T. 791 ,52, 107 
 
 Rushworth's Case, Freem, 13 127 
 
 Russell, E,v parte, Butterworth, Be, 19 Ch. D. 588 ; 30 W. R, 584 ; 
 
 51 L. J. Ch. 521 ; 46 L. T. 113 79, 80 
 
 Be, Dorell v. Dorell, [1895] 2 Ch. 698 ; 64 L. J. Ch, 891 ; 
 
 73 L. T. 195 ; 44 W. R. 100 lUO 
 
 t-. Jackson, 10 Hare, 204 58 
 
 V. Russell, 2 Wh. & Tu. 276 130 
 
 r. Wakefield, etc, Co., 20 Eq. 474 133 
 
 Ryall V. Ryall, 1 Atk. 59 ; cited Amb. 412 113 
 
 Ryder ?', Bickerton, 3 Sw. 81 n. (a) 208,252 
 
 S. 
 
 vSackville West r. Holmesdale, 4 H. L. Cas, 543 ; 39 L. J, Ch, 
 
 505 94, 95, y8 
 
 Saffron-Walden r, Rayner, 14 Ch, D, 406 ; 28 W. R. 681 ; 49 L. J. Ch, 
 
 465;43L, T. 3 395 
 
 Saloway r. Strawbridge, 1 Kay & J, 371 ; 3 W. R, 335 ; 24 L, J. Ch, 
 
 393 289 
 
 Salmon, Be, Priest r. Uppleby, 42 Ch. D. 351 347, 348 
 
 Salter r. Cavanagh, 1 IJr. & Wal. 668 366 
 
 Salusbury r. Denton, 3 Kay & J. 529 ... 21 
 
 Salway r. Salway, 2 Russ, & M. 215 ; 9 L. J. Ch, 152 224 
 
 Sampson & Wall, iZ<', 25 Ch. D, 482 59 
 
 Sanders v. Miller, 25 Beav. 154 179 
 
 Sandford r. Keech, Sel. Ca. Ch. 61 125,245 
 
 d 2
 
 lii TABLE OF CASES. 
 
 PAGE 
 Sangninetti r. Stncbev's Banking Co.. [1895] 1 Ch. 176 : 64 L. J. Ch. 
 
 181 : 71 L. T. 872 : 43 W. R. 1.^4 86 
 
 Sarlev r. Clockinakevs' Co.. 1 B. C. C. 81 19 
 
 Salter i: Bird. 103 Pa. St. 403 57 
 
 Saunders r. Dehen. 2 Vern. 272 ... ... ... ... ... s;t, 400 
 
 r. Vaurier. Cr. & Ph. 240 276. 279, 292 
 
 Saunderson. i?^, 3 Kav & J. 497 ... ... 48 
 
 Savile r. Couper. 3.5 W. R. 829 : .56 L. T. 907 319 
 
 Sawver r. Sawver. 28 Ch. D. 595 373,380 
 
 Savre r. Hujhe^. 5 Eq. 376 ; 16 W. R. 662 : 37 L. J. Ch. 401 ; 
 
 18 L. T. 347 118 
 
 Scales v. Baker. 2SBeaT. 91 : 8 W. R. 287 ; 2 L. T. 659 351 
 
 Schrieber c. Dinkel. 54 L. J. Ch. 241 92 
 
 Scott r. Becher, 4 Pr. 346 : 18 R. R. 722 3.56 
 
 r. Surman, Willes. 4u4 3.54 
 
 Scrivener v. Smith. 8 Eq. 310 ... ... ... ... ... ... 187 
 
 Sciilthorpe r. Tipper, 13 Eq. 232 : 20 W. R. 276 : 41 L. J. Ch. 266 : 
 
 26L. T. 119 197 
 
 Seagram r. Knisht. 2 Ch. App. 630 ; 15 '^. R. 1152 : 36 L. J. Ch. 
 
 91S;17L. T. 47 257.260.263 
 
 Seagrave v. Seasrave. 13 Ves. 443 : 9 R. R. 203 70 
 
 Searle. i?i'. Searle r. Baker. [1900] 2 Ch. 829 174 
 
 Sellack c. Harris. 5 Vin. Abr. 521 ... ... ... 56 
 
 Sewell, He. 11 Eq. 80 : 19 W. R. 220 : 40 L. J. Ch. 135 ; 23 L. T. 835 : 168 
 
 r. King. 14 Ch. D. 179 : 28 W. R. 344 33 
 
 Shafto, i?<>. 29 Ch. D. 247 299 
 
 r. Adams. 4 Giff. 492 40 
 
 Shallcross r. Wrieht, 12 Beav. 505 121 
 
 Shapland r. Smith, 1 Bro. C. C. 75 : 1 R. R. 522 140 
 
 Sharp, He. Rickett r. Sharp, 45 Ch. U. 286 : 62 L. T. 677 : 
 
 60L. J. Ch. 38 208 
 
 r. For, 4 Ch. App. 85 : 17 W. R. 65 : 19 L. T. 541 372 
 
 Sharpe, Be, ^lasonic. etc. Co. v. Sharpe, [1892] 1 Ch. 154 ... 132. 133 
 r. St. Saveur. 7 Ch. App. 351 : 20 \V. R. 269 ; 41 L. .T. Ch. 
 
 576 ; 26 L. T. 142 62,63 
 
 Sharpies r. Adams. 32 Beav. 213 : 11 W. R. 450 400 
 
 Shaw V. Foster, L. R. 5 H. L. 338 : 20 W. R. 907 ; 4£ L. J. Ch. 49 ... 128 
 
 r. Lawless. 5 CI. & F. 129 ; 47 R. R. 41 26 
 
 r. Weigh. 2 Str. 798 147 
 
 Sheffield (Lord) r. London Joint Stock Bank. 13 App. Cas. 333 ... 399 
 
 Sheldon. /^s Nixon c. Sheldon. 39 Ch. D. 50 170,173 
 
 Shelley's Case. 1 Co. 88b... 96.99.146.148.149 
 
 Shelmerdine, i?/'. 33 L. .1. Ch. 476 304 
 
 Shepherd r. Mouls. 4 Hare. .500. .504 343 
 
 Sheppard, i/r, W. N. (18S8), p. 234 300 
 
 , //r, 4 l)e F. & J. 423 316 
 
 Sherwood. //<•. 3 IJcav. 338 240 
 
 Shewin r. Vanderh^rst. 2 Rnss. & M. 75 ; 32 R. R. 219 272 
 
 Shield, /A-, Pethvl)ridge c. Bnrrow, 53 L. T. 5 36 
 
 Shore r. Shore, 4 Drew. 510 179,182 
 
 Shortridge, Jte, [l.s<J5j 1 Ch. 278 ; 64 L. J. Ch. 191 ; 71 L. T. 799 ; 
 
 43W. R. 257 294,301 
 
 Shurmei r. Sedgwick, 24 Ch. D. 597 ; 31 W. H. ssj ; 49 L. T. 156 ; 
 
 53L. J. Ch. H7 92 
 
 Sidmouth c. Sidnionth, 2 Beav. 455 ... . ... ... ... 117 
 
 Siirgcr r. Kvans 5 Kl. *: Bi. 367 25 
 
 Silkstonc, Jtc. Co r. Edev, [1900] 1 Ch. 167 247,248 
 
 Si»8on t:. Shaw, 9 Vfcs. 288 257,262
 
 TABLE OF CASES, llll 
 
 PAGE 
 
 Skeats v. Allen, 37 W. K. 778 2!)(: 
 
 r. Evans, 42 Ch. D. 522 ; 61 L. T. 500 2!K> 
 
 Sleeman v. Wilson, 13 Kq. 36 ; 20 W. R. lOt) ; 25 L. T. 408 371 
 
 Smalhvooilc. Kutter, 9 Hare, 24 33.") 
 
 Smart r. I'rujcan, 6 Ves. 560 ... ... ... ... ... ... 56 
 
 Smethurst r. Hastings, 30 Ch. D. 490 ; 33 W. li. 4<J6 ; 52 L.T. 567 : 
 
 200, 213, 214 
 
 Smirthwaite. i?(', 11 Eq. 251 303 
 
 Smith, i?6', i) Eq. 374 179,187 
 
 , i?«, Arnold r. Smith, [1896] 1 Ch. 171 167 
 
 ■ ,//<', Champ r. Marshallsay, 64 L.T. 13 37 
 
 , lie, Davidson r. Mjvtle, [1896] 2 Ch. 590 ; 65 L. J. Ch. 
 
 7(51 ; 74 L. T. 810 ; 45 W. l\. 29 20S 
 
 , He, Henderson-Koe r. Hitehins, 42 Ch. D. 302 271 
 
 , Be, Smith r. Thompson, [1896] 1 Ch. 71 ; 65 L.J. Ch. 159 ; 
 
 73 L. T. 604 ; 44 W. R. 270 209, 246, 257 
 
 r. Bolden, 33 Beav. 262 328 
 
 r. Cherrill, 4 Eq. 390 ; 15 W. R. 919 ; 16 L. T. 517 79 
 
 r. Cooke, [1891] A. C. 297 ; 60 L. J. Ch. 607 ; 65 L. T. 1 ; 
 
 40W. R. 67 25,106 
 
 r. Cremer, 24 W. R. 51 254 
 
 c. Hnrst, 10 Hare, 30 25 
 
 V. Matthews, 3 De G. E. & J. 139 ; 30 L. J. Ch. 445 ; 9 W. R. 
 
 644;4L. T. 266 54 
 
 f. Smith, 5 Ch. App. 342 45 
 
 r. , 11 C. B. (N.s.) 121 141 
 
 V. , 21 Beav. 385 308 
 
 v. Wheeler, 1 Mod. 17 275 
 
 Snowdon v. Dales, 6 Sim. 524 ; 3 L. J. Ch. (N.s.) 188 : 38 R. R. 173 : 44, 
 
 48, 49, 281 
 Soar r. Ashwell, [1893] 2 Q. B. 390 ; 69 L. T. 585 ; 42 W. R. 165 : 132, 
 
 133, 385, 386 
 
 V. Foster, 4 Kay & J. 152 ; 6 W. R. 265 ; 4 Jur. (N.s.) 406 ... 114 
 
 Societe Gonorale r. Walker, 11 App. Cas. 20; 34 \Y. R. 662; 
 
 55 L..T. Q. B. 569; 54 L. T. 389 36 
 
 Somerset, i?c, W. N. (1887), p. 122 293,304 
 
 , Jte, Somerset r. Roulett (Lord), [1894] 1 Ch. 231 ; 
 
 62 L. J. Ch. 720 ; 68 L. T. 613 214, 215, 365, 375, 379 
 
 Soper t'. Arnold, 14 App. Cas. 429 ... 159 
 
 Southampton (Lord) c. Hertford (Lord), 2 V. & B. 54,65 45 
 
 Speight r. Gaunt, 22 Ch. D. 727 ; 9 App. Cas. 1 ; *32 W. R. 435 ; 
 
 53 L. J. Ch. 419 188. 189, 221, 222, 225, 227, 228, 231 
 
 Spence V. Spence, 10 W. R. 605 141 
 
 Spencer, i?6', 51 L. J. Ch. 271 133,393 
 
 c. Slater, 4 Q. B. D. 104 ; 27 W. R. 134 ; 48 L. J. Q. B. 204 ; 
 
 39 L. T. 424 84 
 
 V. Topham, 22 Beav. 573 ; 28 L. T. 56 251 
 
 Spink r. Lewis, 3 B. C. C. 355 107 
 
 Spirrett v. Willows. 3 De G. J. & S. 293 ; 14 W. R. 941 ; 34 L. J. Ch. 
 
 365; 11 L. T. 720 79 
 
 Sporle r. Burnaby, 10 .Tur. (N.S.) 1142 217 
 
 Sprague, i?e, Miley r. Cape, 43 L. T. 236 21 
 
 Spring r. Pride, 4 De G. J. & S. 395 245 
 
 Springett v. Dashwood, 2 Giii. 521 ; 3 L. T. 542 : 7 Jur. (N.s.) 93 : 252, 
 
 253 
 r. Jennings, 10 Eq. 488 ; 19 W. R. 575 ; 40 L. J. Ch. 348 ; 
 
 24L. T. 643 113 
 
 Spurgeon -y. Collier, 1 Eden, 65 ... 397
 
 liV TABLE OF CASES. 
 
 PAGE 
 
 St. John V. St. John, 11 Ves. 535 luy 
 
 St. Paul r. Dudley, 15 Ves. 172 ; 10 R. R. 57 131 
 
 Stacey t: Elph, 1 Mv. & K. 195 ; 2 L. J. Ch. 50 ; 3(5 R. R. 304 : 135, 137, 
 
 219 
 
 Stackhouse r. Barnston, 10 Ves. 496 370 
 
 Staftord v. Fiddon, 23 Beav. 386 198, 341, 342, 344 
 
 1-. Stafford, 1 De G. & J. 202 369 
 
 Stamford (Lord) Re, Payne r. Stamford, [1896] 1 Ch. 288 ; 
 
 65 L. J. Ch. 134 ; 73 L. T. 539 ; 44 W. R. 247 : 297, 305, 
 
 307, 328 
 
 (Earl) V. Hobart, 3 Bro. P. C. Tarl. ed. 31—33 95 
 
 Standing v. Bowring, 31 Ch. D. 282 ; 55 L. J. Ch, 218 ; 54 L. T. 191 ; 
 
 34 W. R. 204 113—115 
 
 Stanford r. Roberts, [1901] 1 Ch. 440 187 
 
 Stanley r. Lennard, 1 Eden, 95 ... ... 94 
 
 V. Stanley, 7 Ch. D. 589 ; 26 W. R. 310 ; 47 L. J. Ch. 256 ; 
 
 37L. T. 777 372.383,389 
 
 Stanniar r. Evans, 34 Ch. D. 470 26 
 
 Stead, Re, Witham r. Andrew, [1900] 1 Ch. 237 53,58 
 
 r. Mellor, 5 Ch. D. 225 ; 25 W. R. 508 ; 36 L. T. 498 ... 22 
 
 Steen. Re, Steen r. Peebles. 25 L. R. Jr. 544 260 
 
 Stenning, Re, Wood v. Stenning, [1895] 2 Ch. 433 ; 73 L. T. 207 ... 355 
 Stewart v. Sanderson, 10 Eq. 26 ; 18 VV. R. 278 ; 39 L. J. Ch. 337 ; 
 
 22L. T. 10 209 
 
 Stickney v. Sewell, 1 My. & Cr. 8 ; 43 R. R. 129 214, 238, 249 
 
 Stock V. McAvoy, 15 Eq. 55 ; 21 W. R. 521 ; 42 L. J. Ch. 230 ; 
 
 27 L. T. 441 117 
 
 Stocken, Re, Jones r. Hawkins, 38 Ch. D. 319 ... ... ... 337 
 
 r. Dawes, 6 Beav. 371 242 
 
 Stokes, Re. 13 Eq. 333 ; 20 W. R. 396 ; 41 L. J. Ch. 290 ; 26 L. T. 
 
 181 292,293,334 
 
 r. Prance, [1898] 1 Ch. 212 ; 67 L. J. Ch. 69 ; 77 L. T. 595 ; 
 
 46 W. R. 183 159, 213, 385 
 
 Stokoe ^•. Cowan, 29 Beav. 637 75 
 
 Stone V. Liddcrdale, 2 Anst. 533 ; 3 R. K. 622 43 
 
 Stonor V. Curwen, 5 Sim. 268 ; 35 R. R. 156 96 
 
 Stott t-. Milne, 25 Ch. D. 710 179,187,188.259,321 
 
 Straker r. Wilson, 6 Ch. App. 503 162 
 
 Strange r. Fooks, 4 Giif. 408 369 
 
 StreatHeld r. Strcatfield, 1 Wh. &Tu. L. C. 416 96 
 
 Stretton r. Ashmall. 3 Dr. 12 ; 3 W. R. 4 ; 24 L. J. Cii. 277 214 
 
 Strickland r. Aldridge. 9 Ves. 219 ; 7 R. R. 292 53, 56 
 
 r, Symons, 2(; Ch. D. 243 26,322 
 
 Stuart, Re, Smith r. Stuart, [1897] 2 Ch. 583: ()6 L. J. Cii. 7S0 ; 
 
 77 L. T. 128 ; 46 W. R. 41 359, 360 
 
 r. Norton, 14 Moo. P. C. 17 225 
 
 r. Stuart, 3 Bcav. 430 161 
 
 Stubbs r. Sargoii, 2 Keen, 255 : 3 My. .t Cr. 507 ; 7 L. ,). (N.S.) Ch. 
 
 95 ; 44 \i.\{. 241 " 103,107 
 
 Styles ,: (Juy, 1 M. & G. 423 ; 19 L.,1. Cli. 1S5 208, 237 
 
 Sudcicy (l>nrd) and Baines & Co., Re, | IS'.M] 1 Cli. 334 279 
 
 Sunter r. Great Western l{aii Co., 23 W.R. 126 159 
 
 Susanni,//r, 47 L. J. Ch. 65 21 
 
 Sutlon, Re, 12 Ch. D. 175 ; 27 W. R. .')2'.l : 48 L. J. Ch. 3.50 332 
 
 r. JoncH, 15 Ves. 587 ... ... ... ... ... ... 249 
 
 ;•. Wilder, 12 Va\. 377; 19 W. 1!. loiil : II I.. .1. Ch. 30; 
 
 25 L.T. 292 218 
 
 Swiiflicld r. Nelson, W. N. (IS7(;), at p. 255 200.212,213
 
 TABLE OF CASES. Iv 
 
 PAGI-: 
 
 Swain, lie, Swain r. Bringeman, [1891] 3 Ch. 233 364 
 
 Swale V. Swale, 22 Beav. 584 23."i 
 
 Swan, iZr, 2 Hem. & M. 34 261,333 
 
 Swasey i;. American Bible Society, 57 Meri. 527 ... 64 
 
 Sweetapple r. Bindon, 2 Ver. 536 ... ... ... ... ... 9S 
 
 Swinnock r. De Crispe, Free. 78 257,262 
 
 Sykes v. Sykes, 13 Eq. 56 ; 20 W. R. 90 ; 41 L. J. Ch. 25 ; 25 L. T. 
 
 560 44,49 
 
 Symes v. Hughes. 9 Eq. 475 ; 39 L. J. Ch. 304 ; 22 L. T. 462 : 
 
 109—111, 119 
 Synnot c. Simpson, 5 H. L. Cas. 241 ... 25, 26 
 
 T. 
 
 T , i?e, 15 Ch. D. 78 187 
 
 Tabor v. Brooks. 10 Ch. D, 273 ; 48 L. J. Ch. 130 ; 39 L. T. 528 : 167, 
 
 256, 258 
 
 Tailby v. Official Receiver, 13 App. Cas. 523 41 
 
 Tait r. Lathbury, 1 Eq. 174 97 
 
 Talbot ■?;. Jevers, 20 Eq. 255 276 
 
 V. Marshfield, 3 Ch. App. 622 252 
 
 r. O'Sullivan, 6 L. R. Ir. 302 23 
 
 «. Radnor (Earl), 3 My. & K. 252 ; 41 R. R. 64 ... 21 7, 334 
 
 (Earl) r. Scott, 4 Kay & J. 139 356,357 
 
 Tallatire, i2e, W. N. (1885), p. 191 297,306 
 
 Tankard, Re, [1899J 2 Q. B. 57 ; 68 L. J. Q. B. 670 ; 47 W. R. 624 ; 
 
 80L. T. 500 S5 
 
 Tanqueray, Willaimie, and Landau. Re, 20 Ch. D. 479 ; 30 W. R. 801 ; 
 
 51 L." J. Ch. 434 ; 46 L. T. 542 140,147 
 
 Tappenden r. Walsh, 1 Ph. 352 19 
 
 Tarleton ■(!. Hornby, 1 Y. & C. Ex. .336 374 
 
 Tasker v. Small, 3 My. & Cr. 69 ; 45 R. R. 211 ; 6 Sim. 625 ; 
 
 5 L. J. (N.s.) Ch. 321 28 
 
 Tatam -y. Williams, 3 Hare, 347... ... ... ... 372 
 
 Tate V. Williamson, 2 Ch. App. 55 ; 15 W. R. 321 ; 15 L. T. 549 : 68, 
 
 72, 251 
 Taylor, Re, Taylor v. Wade, [1894] 1 Ch. 671 ; 63 L. J. Ch. 424 ; 
 
 70 L. T. 556 ; 42 W. R. 373 382. 388 
 
 V. Blacklock, 55 L. J. Ch. 99 ; 34 W. R. 175 ' 7 
 
 r. Chester, L. R. 4 Q. B. 309 109 
 
 r. Clark, 1 Hare, 161 176 
 
 v. Coenen, 1 Ch. D. 636 ; 34 L. T. 18 79 
 
 V. Haygarth, 14 Sim. 8 ... ... ... ... ... ... 152 
 
 «. Meades, 13 W. R. 394 ; 34 L. J. Ch. 203 60,63 
 
 r. riumer, 3 M. & S. 562 ; 2 Rose, 415 ; 16 R. R. 361 : 351—353 
 
 r. Tabrum, 6 Sim. 281 2t)4 
 
 c Taylor, 3 De G.M.& G. 190 ... 121 
 
 Teasdale v. Braithwaite, 4 Ch. D. 90 ; 46 L. J. Ch. 725 ; 36 L. T. 
 
 601 ; 25 W. R. 546 92 
 
 Tebbs r. Carpenter, 1 Madd. 291 ; 16 R. R. 224 192 
 
 Tee r. Ferris, 2 Kay. & J. 357 58 
 
 Tempest, Re, 1 Ch. App. 485 306 
 
 V. Camoys (Lord), 35 Beav. 201 ; 21 Ch. D. 571 ; 31 W. R. 
 
 326 ; 51 L. J. Ch. 785 ; 48 L. T. 13 19,258,259 
 
 Temple r. Thring, 56 L. J. Ch. 767 198 
 
 Tennant v. Trenchard, 4 Ch. App. 547 ; 38 L. J. Ch. 169 ; 20 L. T. 
 
 856 244
 
 Ivi TABLE OF CASES. 
 
 PAGE 
 
 Thatcher. He. 26 Ch. D. 426 262 
 
 Thellusson r. Woodford. 11 Ves. 112 : 8 E.1M04 46 
 
 Thomas, Be. Weatheiall v. Thomas. [190u] 1 Ch. 319 181 
 
 , He. Wood V. Thomas. [1891] 3 Ch. 482 : 60 L. J. Ch. 781 ; 
 
 6.-5L. T. 142 170,173 
 
 r. Kelly. 13 App. Cas. 506 41 
 
 Thompson r. Clive. 11 Beav. 475 ... ... ... 253 
 
 r. Eastwood. 2 App. Cas. 215 ... ... ... ... 374 
 
 r. Finch. 8 De G. M. & G. 560 ; 22 Beav. 316 ; 25 L. J. Ch. 
 
 681 : 27 L. T. 330 237, 375, 377 
 
 V. Fi-sher, 10 Eq. 207 99 
 
 V. Shakespeare, Johns. 612 : 8 W. R. 265 : 29 L. J. Ch. 
 
 276: 2L. T. 479 ... 62 
 
 v. Simpson. 1 Dr. & War. 491 392 
 
 r. Thomas. 27 L. K. Ir. 457 49 
 
 r. Webster, 4 Drew. 632 76 
 
 Thomson v. Clydesdale Bank, [1893] A. C. 282 : 69 L. T. 156 : 133. 355, 
 
 393 
 
 Thornlorough r. Baker. 2 Wh.&Tu. 1 130 
 
 Thorndike r. Hunt. 3 D. & J. 56 ; 7 W. R. 246 ; 28 L. J. Ch. 417 : 
 
 32 L. T. 346 397 
 
 Thorue r. Heard. [1895] A. C. 495 : 64 L. J. Ch. 652 ; 73 L. T. 
 
 291 ; 44 W. E. 155 365 
 
 Thorpe, Re. Vipout r. RadclifTe. [1891] 2 Ch. 360 : 60 L. J. Ch. 529 ; 
 
 64L. T. 554 246 
 
 r. Owen. 5 Beav. 224 : 2 W. E. 208 ; 23 L. J. Ch. 286 ... 35 
 
 Thmsbv V. Thursby, 19 Eq. 395 ; 23 W. E. 500 ; 44 L. J. Ch. 289 ; 
 
 32L. T. 187 .'. 167,172 
 
 Thurston r. Dickerson. 2 Eich. Eq. 317 ... ... ... ... 1S4 
 
 Tibbits r. Tibbits. 19 Yes. (;57 : 23 E. E. 79 22 
 
 Tickuer r. Old, 18 Eq. 422 : 22 W. E. .^71 : 31 L. T. 29 ... 166.169 
 
 Tidd, Br. Tidd v. Oyerell. [1893] 3 Ch. 154 131 
 
 Tiernev r. Wood. 19 Beav. 330 : 3 W. E. 577 ; 23 L. T. 266 ... 52 
 
 Tillott' Be, Lee v. Wilson, [1892] 1 Ch. 86 ; 61 L. J. Ch. 38 ; 65 L.T. 
 
 781 252,254 
 
 Titlev r. Wolstenholme, 7 Beav. 425 289 
 
 Todd", Ex ])arte. 19 Q. B. D. 186 ; 56 L. J. Q. B. 431 ; 35 W. E. 
 
 676 •'^"> 
 
 r. Moorhouse. 19 Eq. 69 131,181 
 
 r. Studholme, 3 Kay & J. 324 3S5 
 
 Toller r. At^vood. 15 Q. B. 929; 20L. J. Q. B.40 148 
 
 Tomlinson. Be. [1898] 1 Ch. 232 ; 67 L. J. Ch. 97 ; 78 L. T. 12 ; 
 
 46W.E. 299 " 181.185 
 
 Tooke r. Holliiigworth, 5 T. E. 277 ; 2 W. E. 573 352 
 
 Topliani r. Spencer. 2 Jur. (N.S.) 865 128 
 
 Toutt. 7^. 26 Ch. I). 45 295.317 
 
 Townley r. Slarliorne, Brulg. 35 ; 2 Wh. & Tu. 629 234,236 
 
 Town>en«l, Br. [1S95] 1 Ch. 716 ; 64 L. J. Ch. 334 : 72 L. T. 321 ; 
 
 •13W.E. 392 142,148 
 
 Towiison T. Harrison. 43 Ch. D. 55 ; 59 L. .1. Ch. 169 : 38 W. E. 265 ; 
 
 61 L.T. 762 KSO 
 
 r. Tickell, 3 W. ^ A. 31 ; 22 E. E. 291 135 
 
 /■. Machonodiie,39 Ch. I). 116 ; 57 L. J. Ch. 936 ; .59 L.T. 
 
 681 : 37 W. E. .S3 50 
 
 Travis, i/r. Frost r. (;reat(.ri.x, [1900] 2 Ch. 541 112,276 
 
 TreKonwell r. Sydenham. 3 Dow. 210 ; 15 E. E. 40 106,107. 112 
 
 Trevor r. Trevor. 1 F. A: W. 622 ; 1 H. L. Cas. 239 96.99 
 
 'Jroweil 1-. Shenton, S Ch. D. 31S 89.91
 
 TABLE OF CASES. 
 
 Ivii 
 
 Trntch i-. Lamprell, 20 Beav. IIG 
 
 Tucker, Be, Tucker v. Tucker, [1894] 1 Ch. 124 ; 03 L. J. Ch 
 71L.T. 453 
 
 r. Bennett, 38 Ch. D. 1 
 
 r. Burron, 2 Hem. & M. 515 ; 11 Jur. (N.s.) 525 
 
 V. Horneman, 4 l)e G. M. & G. 3'.)5 
 
 737 
 
 PAGE 
 . 237 
 
 207 
 
 Tullett V. Armstrong, 4 My. & Cr. 377 
 
 Tunbridge r. Cane, 19 W. K. 1047 
 
 Tupper r. Fuller. 7 llich. Eq. 107 
 
 Turcan, i?r, 40 Ch. D. 5 
 
 Turner, Re, Barker v. Iviraey, [1897] 1 Ch. 536 ; 66 L. J. Ch. 282 ; 
 
 76 L. T. 116 ; 45 W. K. 455 ... 200, 216, 359, 360, 361, 377 
 
 329 ; 20 W. E. 305 ; 41 L. J. Ch. 
 
 114,119 
 ... 335 
 
 277, 281 
 ... 114 
 ... 182 
 ... 20 
 
 Collins, 7 Ch. App. 
 .558 ; 25 L. T. 779 
 Maule, 15 Jur. 761 
 
 Turnlcy, Re, 1 Ch. App. 152 ... 
 Turton v. Benson, 1 V. Wms. 496 
 TwecUller. Atkinson, 1 B. & S. 393 
 Tweedale v. Tweedale, 7 Ch. D. 633 
 
 530 ; 38 L. T. 151 
 
 Tweedie and Miles, Re, 27 Ch. D. 315 ... 
 Twynne's Case, 1 Sm. L. C. 1 ... 
 Tyars r. Alsop, 61 L. T. 8 ; 37 W. R. 339 
 Tyler, Re. Tyler v. Tyler, [1891] 3 Ch. 252 
 
 V. Tyler, 3 Beav. 563 
 
 Tyrwhitt r. Tyrwhitt, 32 Beav. 244 
 
 30 L. J. Q. B. 265 .. 
 26 W. K. 457 ; 47 L 
 
 ... 73 
 
 ... 297 
 ... 187 
 391, 399 
 ...29,30 
 J. Ch. 
 
 ...15,22 
 ... 278 
 ... 78 
 ...66,71 
 ... 64 
 ... 373 
 ... 131 
 
 u. 
 
 Underwood v. Stevens, 1 Meri. 717 
 
 Ungless r. Tuff, 9 W. R. 727 
 
 Uniacke. Re, 1 Jo. & Lat. 1 
 
 Upfull,i?e, 3M. & G. 281 
 
 Upton V. Brown, 12 Ch. D. 872 ; 26 Ch. D. 588 
 
 ... 369 
 ... 211 
 ... 138 
 ... 332 
 105,182 
 
 Vachcllr. Roberts, 32 Beav. 140 
 
 Van Grutten v. Foxwell, [1897] A. C. 658 ; ^oiS L. J. Q. B 
 
 77 L. T. 170 ; 46 W. R. 426 
 
 Vansittart, Re. Hx parte Brown, [1893] 2 Q. B. 377 ; 62 L 
 279 ; 68 L. T. 233 ; 41 W. R. 286 
 
 t'. Vansittart, 2 D. & J. 249 
 
 Varney v. Stevens, 22 Mex. 331 
 
 Vaughan, A'a?^ja?"^e, 14 Q. B. D. 25 
 
 , Re, Vaughan r. Thomas, 33 Ch. I). 187 
 
 Vaughton r-. Noble, 30 Beav. 34... 
 
 Venables r. Foyle, 1 Ch. Cas. 3 
 
 r. Morris, 7 T. R. 342 ; 4 E. R. 455 ... 
 
 Verney, Re, [1898] 1 Ch. 508 ; 67 L. J. Ch. 243 ; 78 L 
 
 46W. R^348 
 
 Vernon, Re, 35 W. R. 225 ; 55 L. T. 416 
 
 Vicary r. Evans, 30 Beav. 376 
 
 Vicat, Re, 33 Ch. D. 103 
 
 Villiers r. Villiers, 2 Atk. 72 
 
 ... 168 
 
 745 ; 
 142, 149 
 
 Q. B. 
 ... 86 
 ... .50 
 ... 182 
 ... 327 
 ...62,64 
 ... 382 
 ... 130 
 ... 143 
 
 T. 191 
 
 ... 186 
 7 
 ... 217 
 305, 315 
 ... 147
 
 Iviii TABLE OF CASES. 
 
 PAGE 
 
 Vincent f. Vincent. 35 W. R. 7 37,54 
 
 Vine r. Raleigh, [1891] 2 Ch. 13 47 
 
 Vyse V. Foster, 8 Ch. App. 333, afiE. L. R. 7 H. L. 318 ; 23 W. R. 
 
 355; -liL. J. Ch. 37;"31 L. T. 177 245,261,341, 
 
 342, 346, 349, 350 
 
 W. 
 
 Waite V. Littlewood, 41 L. J. Ch. 636 ; 42 L. J. Ch. 216 : 21 W. R. 
 
 131 ; 28 L. T. 123 ; L. R. 8 Ch. 70 211 
 
 Walcott r. Lyons, 54 L. T. 786 214 
 
 Waldo r. Waldo, 7 Sim. 261 : 40 R. R. 134 256, 260, 263 
 
 Walker. i?f, Summers y. BaiTow, [1901] 1 Ch. 259 300 
 
 , He, Walker r. AValker, 62 L. T. 449 ; 59 L. J. Ch. 386 ... 164 
 
 211,212, 215,216,347 
 
 and Hughes, Be, 24 Ch. D. 698 298 
 
 r. Smallwood, Amb. 676 ... 273 
 
 V. Symonds, 3 Sw. 63 ; 19 R. R. 155 235—237, 369 
 
 r. Wetherell. 6 Ves. 255 262 
 
 Walters r. Woodbridge, 7 Ch. D. 504 ; 26 W. R. 469 ; 47 L. J. Ch. 
 
 516;38L. T. 83 321 
 
 Walton r. Walton. 14 Ves. 322 103,104 
 
 Walwynr. Coutts! 3 Sim. 14 ; 30 R. R. 117 25 
 
 AYant r. Campain,' 9 T. L. R. 254 212 
 
 r. Stallibrass, L. R. 8 Ex. 175 : 29 L. T. 293 : 21 W. R. 685 ; 
 
 42L.J. Ex. 108 ... 159 
 
 Warburton r. Sandys, 14 Sim. 622 284 
 
 Ward, 7?f. 47 L. J. Ch. 781 219 
 
 r. Butler, 2 Moll. .533 137 
 
 «. Ward, 2 H. L. Cas. 784 190,256,259 
 
 Ware v. Cann, 10 B. & C. 433 ; 8 L. J. K. B. 164 ; 34 R. R. 469 ... 49 
 
 V. Gardner, 7 Eq. 317 : 17 W. R. 439; 38 L. J. Ch. 348; 
 
 20L. T. 71 79 
 
 Waring r. Waring, 3 Ir, Ch. Rep. 331 196, 214 
 
 Warrinor r. Rogers, 16 Eq. 340 ; 21 W. R. 766 ; 42 L. J. Ch. 581 ; 
 
 2.S L. T. 863 36 
 
 Warwick r. Warwick. 3 Atk. 291 392 
 
 Wassell r. Leggatt. [1896] 1 Ch. 554 : 65 L. J. Ch. 240 ; 74 L. T. 
 
 99 ; 44 W. R. 298 365 
 
 Water V. Anderson, 11 Hare, 301 325 
 
 Waters, ^^', W. N. (1889), 39 164 
 
 AVatson, Ifr. 19 Ch. 1). 384 317 
 
 r. Haves, 5 :Mv. & Cr. 125 103,105 
 
 r. I'earson, 2 Kxch. 581 ; 18 L. J. Ex. 46 ... 142, 143, 146, 147 
 
 r. Woodman, 20 K(i. 721 132 
 
 f. Young, 28 Ch. 1). 43(i 44,46 
 
 Watte, J?^ 9 Hare. 1U6 297 
 
 Waugh, Jle, 25 W. R. 555 182 
 
 Weal), Jlr, Andrews r. Weall, 42 Ch. I). 674 ; 57 L. J. Ch. 713 ; 
 
 61 L. T. 2:{S : 37 W. R. 779 221,222.228,331 
 
 Weaver. 7/r, 21 Ch. 1). 615 : 31 W. R. 224 ; 4S L. T. 93 258 
 
 Wcbl), i/r. (;3L. T. 545 322 
 
 , J/r. Lambert r. Still, [1S94] 1 Ch. 73 ; (13 L. J. Ch. 145 ; 
 
 70 L. T. 318 242 
 
 r. . Tonus, 39 Ch. D. 660 200,213 
 
 r. Lugar, 2 Y. & C. 247 ; 17 l{. K. Ki? ; C L. J. (N.s.) Ex. 
 
 49 127
 
 TABLE OF CASES. lix 
 
 PAGE 
 Webb V. Shaftesbury (Earl), 7 Ves. 488 ; 6 R. R, 154 ... 240, 243, 
 
 246, 3o8 
 Wedderburn, Re, 9 Ch. 1). 112 ; 27 W. R. 53 ; 47 L. J. Ch. 743 ; 
 
 39L. T. 904 158,209 
 
 r. Wedderburn. 22 Beav. 84 243 
 
 Weeding, ^e, 4 Jur. (N.S.) 707 305 
 
 Weekes, iZs, [1897] 1 Ch. 289 15,22 
 
 Weir 0. Bell, 3 Ex. D. 238 197 
 
 WelIborne,iZ6', [1901] 1 Ch. 312 242,323 
 
 AVellesley r. Wellesley, 4 My. & Cr. 561 20 
 
 Wells V. Malbon, 31 Beav. 48 ; 31 L. J. Ch. 844 ; 8 Jur. (N.s.) 249 : 
 
 335, .337 
 
 Wenlock (Lady) v. River Dee Commrs., 19 Q. B. D. 155 322 
 
 Wesley r. Clark, 1 Eden, 357 237 
 
 West London Bank r. Reliance, etc. Society, 29 Ch. D. 954 398 
 
 West, He, George v. Grose, [1900] 1 Ch. 84 103 
 
 r. Williams, [1898] 1 Ch. 488 ; 67 L. J. Ch. 213 ; 78 L. T. 147 ; 
 
 46 W. R. 362 48 
 
 West of England Bank r. Murch, 23 Ch. D. 138 ; 31 W. R. 467 ; 
 
 52 L. J. Ch. 650 ; 48 L. T. 417 295 
 
 Westmeath r. Westmeath, 1 Dow. (N.s.) 519 ; 35 R. R. 54 50 
 
 Weston, He, Davies v. Tagart, [1900] 2 Ch. 164 382, 388 
 
 Wethered v. Wethered, 2 Sim. 183 ; 29 R. R. 77 41 
 
 Wharton r. Masterman, [1895] A. C. 186 ; 64 L. J. Ch. 369 ; 72 L. T. 
 
 431 ; 43 W. R. 449 276 
 
 Wheeler and de Rochow, Be, [1896] 1 Ch. 315 ; 65 L. J. Ch. 219 ; 
 
 73 L. T. 661 ; 44 W. R. 270 298 
 
 n Smith, 1 Gif. 300 113 
 
 r. Warner, 1 S. & S. 304 ; 24 R. R. 176 15 
 
 Whichcote r. Lawrence, 3 Ves. 740 ... ... ... ... ... 244 
 
 Whinney, ^«;;a?';^<', [1900] 2 Q. B. D. 186 ... 85 
 
 Whiston, Be, Lovett v. Williamson, [1894] 1 Ch. 661 ; 63 L. J. Ch. 
 
 273 ; 70 L. T. 681 ; 42 W. R. 327 94 
 
 Whitbread v. Smith, 2 De G. M. & G. 741 178, 180 
 
 White, iZc, White c.Edmond, r 1901] 1 Ch. 570 279 
 
 and Hindle, Tie, 7 Ch. D. 201 144 
 
 r. Baugh, 3 CI. & F. 44 224 
 
 f. Briggs, 2 Ph. 583 ; 15 Sim. 33 19 
 
 r. Parker, 1 Bing. N. C. 573 ; 4 L. J. C. P. 178 140 
 
 1'. White, 9 Ves. 556 ; 4 R. R. 161 179 
 
 Whitefieid r. Brand, 16 M. & W. 282 149 
 
 Whitehead. Re, Peacock r. Lucas. [1894] 1 Ch. 678 ; 63 L. J. Ch. 
 
 229 ; 70 L. T. 122 ; 42 W. R. 491 166 
 
 Whiteley, Re, Whiteley r. Learoyd, 12 App. Cas. 727 ; 33 Ch. D. 
 
 347 188,189,200,210,214,216,226,347 
 
 Whitney r. Smith, 4 Ch. App. 521 ; 17 W. R. 579 ; 20 L. T. 468 : 
 
 212, 246, 365, 378 
 
 Whitwam v. Watkin, 78 L. T. 188 362 
 
 Whitton, ii-e, 8 Eq. 3.53 187 
 
 Widdow. i?e, 11 Eq. 408 279 
 
 Wightman v. Townroe, 1 M. & S. 412 ; 14 R. R. 475 151 
 
 Wilcock, Re, 62 L. T. 317 107 
 
 Wild V. Banning, 2 Eq. 577 ; 35 L. J, Ch. 594 ; 14 L. T. 845 ; 
 
 12 Jur. CN.S.) 464 106 
 
 Wilday v. Sandys, 7 Eq. 455 ; 17 W. R. 603 166,168 
 
 Wiles V. Gresham, 2 Drew. 258 ; 5 De G. M. & G. 770 ; 3 W. R. 87 ; 
 
 24L. J. Ch. 264 192,268,349,3.50 
 
 Wilkes r. Groom, 6 De G. M. & G. 205 312
 
 Ix TABLE OF CASES. 
 
 PAGE 
 Wilkins V. Hogg, 3 Gif. IIG ; 10 W. K. 47 ; 8 Jur, (N.s.) 25 ; 
 
 31L. J.Ch. 41 367 
 
 Wilkinson r. Pany, 4 Russ. 27C ; 28 E. R. 24... , 291,309 
 
 Williams' Settlement. iiV. 4 Kay & J. 87 ... 333 
 
 Williams' Trusts. i?r, 36 Ch. D. 231 : 56 L. T. 884 303,312 
 
 , I^L\ Williams r. Williams, [1897] 2 Ch. 12 ; 66 L. J. Ch. 
 
 485 : 76 L. T. 600 ; 45 W. R. 519 IS. 23 
 
 V. Corbett, 8 Sim. 349 ; 6 L. J. (N.s.) Ch. 182 ; 42 R. R. 
 
 200 26 
 
 r. Scott, [1900] A. C. 499 248,250 
 
 r. Teale, 6 Hare, 239 100 
 
 r. Waters. 14 M. & W. 166 141 
 
 r. Williams. 32 Beay. 370 114,116 
 
 r. , 17Ch. D. 437 219,382 
 
 Willis t: Kibble, 1 Beav. 559 240 
 
 ^•. Willis, 2 Atk. 71 104 
 
 Wilson, He. Alexander r. Calder. 28 Ch. D. 457 ; 33 W. R. 579 ; 
 
 54L. J.Ch. 487 335 
 
 r. Bury, 5 Q. B. D. 18 34,39 
 
 r. Hoare, 2 B. & Ad. 350 151 
 
 r. Moore. 1 My. & K. 126 ; 36 R. R. 272 348 
 
 r. Wilson, 1 H. L. Cas. 538 50 
 
 Winehilsea (Earlof), i?r,39 Ch. D. 168 320 
 
 Winslow, Jir, Frcre r. Winslow. 45 Ch. D. 249 ; 60 L. J. Ch. 20 ; 
 
 63 L. T. 485 ; 39 AV. R. 120 163, 388 
 
 V. Tighe, 2 Ball & B. 195 ; 12 R. R. 75 127 
 
 Wise, Be, Ex parte, Mercer, 17 Q. B. D. 290 ; 54 L. T. 720 ...76, 80 
 
 , Jackson v. Parrott. [1896] 1 Ch. 281 ; iio L. J. Ch. 281 ; 
 
 73 L. T. 703; 44 W. R. 310 45 
 
 t-. Piper, 13 Ch. IJ. 848 97,278 
 
 ?•. Wise, 2 Jo. & Lat. 403 138 
 
 Withers r. Withers, Amb. 152 ...■ 52 
 
 Withingtoii r. Withington, 16 Sim. 104 297 
 
 Wollaston v. Tribe. 9 p:q. 44 ; 18 W. R. 83 ; 21 L. T. 449 67, 68 
 
 Wood T. Cook, 40 Ch. D. 461 ; 37 W. R. 502 ; 58 L. J. Ch. 518 ... 70 
 r. Cox, 2 My. & Or. 684 ; 6 L. J. (n.s.) Ch. 366 : 45 R. R. 
 
 156 103.106 
 
 r. Middleton, 76 L. T. 155 208 
 
 r. Patteson. 10 Beav.514 257.260 
 
 f. Weightmun, 13 Eq. 434 ; 20 W. R. 459 ; 2(i L. T. 385 ... 220 
 
 Woodburn, i.V, 1 De (;. & J. 333 333,334 
 
 Woodgate, 7/r, 5 W. R. 448 304 
 
 Woodhoiisc r. Walker, 5 Q.B. 1). 401 183 
 
 r. Woodhousc, 8 Eq. 514 ; 38 L. J. Ch. 481 ; 20 L. T. 
 
 209; 17 W. R. 583 193 
 
 Woodin, i/r, Woodin r. Glass. [1895] 2 Ch. 309 271 
 
 Woods c. Woods, 1 My. & Cr. 401 ; 43 R. H. 214 23 
 
 Woodyatt r. (Jresiey.'s Sim. 180 ; 42 R. R. 153 ... 382, 383, 389 
 
 W'onnaii r. Worniiiii, 43 Ch. I). 296 ; 38 W. R. 442 212 
 
 Worral r. Harford, S Vcs. 4 26,320 
 
 Wortliington r. M'Crear, 23 Beav. 81 262 
 
 W ray r. Steele, 2 V. it B. 388 113 
 
 Wren r. Kirton, II Ves. 3H0 232 
 
 Wright, A>y/^///r, 19 Ves. 258 130 
 
 , y/r, 3 K. .S: J. 121 328 
 
 r. Peiirsuii, IKdcn, 125 94,96 
 
 ?;. Vandirplaiik, 8 \)v (i. M. .V: (i. 133 ; 2 Kay & J. 1 ...71, 73 
 
 r. Wright,2 J..V: II (;55 277
 
 TABLE OF CASES. 
 
 Ixi 
 
 Wroe r. Seed, 4 Giff. 425, 429 
 
 Wyatt r. Sharriitt, B Beav. 498 
 
 Wykham r. Wykham. IS Ves. 395 
 Wylly, lir, 28 Beav. 458 ; 8 W. R. G45 
 Wymaii r. Paterson, [1900] A. C. 270 ... 
 Wynne r. Hiimberston, 27 Beav. 421 
 
 —^ r. Tempest, [1897] 1 Ch. 113 ; 13 T. I 
 
 Wythes, Rr, [1893] 2 Ch. 375 
 
 R. 3G0 
 
 PARE 
 ... 253 
 196,200 
 143 
 333 
 233 
 151 
 
 .360, 367, 375 
 283 
 
 Y. 
 
 Yew V. Edwards, 1 D. & J. 598 ... 
 York, etc. Co. r. Hudson. 16 Beav. 485 
 Youde r. Cloud, 18 Eq. 634 
 Young r. Peachy, 2 Atk. 257 ... 
 Younghusband r. Gisborne, 1 Coll. 400 
 
 ... 126 
 
 ... 127 
 ,.. 155 
 ... 114 
 
 48, 281
 
 TABLE OF STATUTES CITED. 
 
 27 Hen. 8, c. 10. (Statute of Uses) 
 
 32 Hen. 8, c. 1. (Will) 
 
 M & 35 Hen. 8, c. 5. (Will) 
 
 13 Eliz 
 
 c. 
 
 5. 
 
 27 Eliz 
 
 c 
 e. 
 
 20. 
 4. 
 
 29 Car. 
 
 2, 
 
 c. 3. 
 
 1 Geo. 
 
 2 
 
 c. 14. 
 
 PAGE 
 
 8, 139 
 ... 17 
 ... 17 
 74, 87, 91 
 ... 74 
 ... 42 
 ... 89 
 ... 89 
 
 (Fraudulent conveyances) 
 
 s. 5 
 
 (Benefices) 
 
 (Fraudulent conveyances) 
 
 s. 4 
 
 (Statute of Frauds) — 
 
 s. 5 
 
 s. 7 
 
 8.8 
 
 (Navy Act) — 
 
 s. 7 
 
 39 &40Geo.3,c. 98. (Thellusson Act) 
 
 47Geo.3,sess.2,c.25. (Fensions) — 
 
 ss. 1—14 
 
 57 Geo. 3, c. 99. (Benefices) 
 
 11 Geo. 4 & 1 Will. 4, c. 20. (Navy)— 
 
 s. 47 
 
 8. 54 
 
 3 & 4 Will. 4, c. 27. (Real Property Limitation Act, 1833) 
 
 s. 40 
 
 c. 74. (Fines and Kecoveries Act, 1833) 
 
 4 & 5 Will. 4, c. 76. (Poor Law Amendment Act, 1834) — 
 
 s. 57 ... 
 
 5 & 6 Will. 4, c. 76. (Municipal Corporations Act, 1835) . 
 
 s. 94 
 
 7 Will. 4 & 1 Vict. c. 28. (Real Property Limitation Act, 1837)— 
 
 s. 25 363 
 
 (Wills Act, 1837) ... 107, 143, 145, 147, 149 
 
 s. 9 53 
 
 ss. 30, 31 144 
 
 (Judgments Act, 1838) 75 
 
 s. 11 75 
 
 (Parliamentary Voters Registration Act, 1813) 
 
 s. 74 
 
 (Solicitors Act, 1843)— 
 
 s. 39 
 
 (Real Property Act, 1845)— 
 
 s. 6 
 
 9 & 10 Vict. c. 101. (Public Money Di^inage Act, 1846) 
 
 10 & 11 Vict, c, 32. (Landed Property Improvement (Ireland) Act. 
 
 1847) 
 
 . 53 
 
 . 52 
 . 113 
 
 . 42 
 46,47 
 
 . 42 
 . 42 
 
 . 42 
 . 43 
 
 . 366 
 276,372 
 
 ... 262 
 
 ... 60 
 
 60 
 
 1 Vict. c. 26. 
 
 1 &2 Vict. c. 110. 
 6 & 7 Vict. c. 18, 
 c. 73. 
 8 & 9 Vict. c. 106. 
 
 152 
 
 323 
 
 40 
 134 
 206 
 
 206
 
 13 & 14 Vict. 
 
 c. 
 
 60. 
 
 18 & 19 Vict. 
 
 c. 
 
 43. 
 
 19 & 20 Vict. 
 
 c. 
 
 9. 
 
 
 c. 
 
 97. 
 
 20 & 21 Vict. 
 
 c. 
 
 57. 
 
 22 & 23 Vict. 
 
 c. 
 
 35. 
 
 Ixiv TABLE OF STATUTES. 
 
 PAGE 
 
 (Trustee Act, 1850) 312,314 
 
 s. 46 151 
 
 s. 50 312 
 
 (Infant Settlements Act, 1855) 59 
 
 (Public IMoney Drainage Act, 1856) 206 
 
 (Mercantile Law Amendment Act, 1856) ... 374 
 
 (Malins' Act) 60,276,372 
 
 (Law of Property Amendment Act, 1859) — 
 
 s. 14 141 
 
 s. 26 219.272 
 
 s. 30 330 
 
 s. 31 221 
 
 23 & 24 Vict. c. 38. (Law of Property Amendment Act, 1860) ... 141 
 
 s. 11 158 
 
 c. 83. (Infant Marriage Act, 1860) 59 
 
 c. 145. (Lord Cranvvorth's Act) — 
 
 ss. 1, 2, 34 264 
 
 24 & 25 Vict. c. 96. (Larceny Act, 1861)— 
 
 s. 80 358 
 
 c. 134. (Bankruptcy Act, 1861)— 
 
 s. 110 Ill 
 
 25 & 26 Vict. c. 89. (Companies Act, 18G2)— 
 
 s. 30 234,236 
 
 Table A., clause 1 234 
 
 26 & 27 Vict. c. 73. (India Stock Certificates Act, 1863) 201 
 
 27 & 28 Vict. c. 114. (Improvement of Land Act, 1864) ...206, 216, 261 
 
 28 & 29 Vict. c. 78. (Mortgage Debenture Act, 1865) 206 
 
 30 & 31 Vict. c. 144. (Policies of Assurance Act, 1867) 40 
 
 31 & 32 Vict. c. 86. (Policies of Marine Assurance Act, 1868) ... 40 
 
 32 & 33 Vict. c. 83. (Bankruptcy Act, 1869) 85 
 
 c. 110. (Charitable Trusts Act, 1869)— 
 
 s. 13 (Legal proceedings) ... 235 
 
 33 Vict, c. 14. (Naturalization Act, 1870) 62,307 
 
 .33 & 34 Vict. c. 23. (Forfeiture Act, 1870) 149 
 
 ss. 6— 8 (Convict) 8,61 
 
 s. 30 (Property of convict) ... ... ... 61 
 
 c. 71. (National Debt Act, 1870) 201 
 
 C.93. (Married Women's Property Act, 1870) ... 60,118 
 
 36 & 37 Vict. c. 45. (Public Loans (Canada) Act, 1873) 202 
 
 c. 66. (.Judicature Act, 1873) 6,40 
 
 s. 6 (Court of Appeal) 40 
 
 s. 25 (Rules of law) 332,391 
 
 37 & 38 Vict. c. 57. (Real Property Limitaticm Act, 1874)— 
 
 s. 8 364 
 
 <•. 78, (Vendors and Purchasers Act, 1874) — 
 
 s. 2 (()l)ligati(msand rights) 195, 2(;5 
 
 s. 4 (Conveyance of mortgaged property) ... 130 
 s. 5 (Vesting clause) 130,287 
 
 38 & 39 Vict. c. 82, (Loral Loans Act, 1875) 201,205 
 
 c. 87. (Land Transfer Act, 187.5)— 
 
 s. IS ({{cpeal clause) ^*^7 
 
 40 & 41 Vict. c. 18. (Settled Kstatcs Act, 1877) 308 
 
 c. 59. (('..lonial Str)ck Act, 1877) 201,202 
 
 43.^44 Vict. c. S. (Isle of Man Loans Act. 1880) 205 
 
 44 & 45 Vict. c. 41. (Couvcvancing and Law of Proi)erty Act, 
 
 1881) ^ ... i-";l 
 
 s. 4 (Completion of contract after death) ... 287 
 K. 30 (Devolution of trust estates) ,,, 137,285, 
 
 287, 289, 290
 
 TABLE OF STATUTES. IxV 
 
 44 & 45 Vict c. 41. (Conveyancing and Law of Property Act, 
 
 1881) — continued. PAGE 
 
 s, 31 (Appointment of new trustees) 300 
 
 s. 34 (Vesting declarations) 310 
 
 s. 35 (Sales) 264 
 
 s. 36 (Trustee's receipts) 266 
 
 8. 37 (Power to compound debts, etc.): 190, 191, 268 
 
 s. 39 (Married woman) 63 
 
 s. 42 (Management of land) 256 
 
 s. 43 (Infants' property) 198,269 
 
 s. 56 (Receipt of money by solicitor)... 228, 229 
 s. 70 (Orders of court to protect purchaser) : 159 
 
 45 & 46 Vict. c. 38. (Settled Land Act, 1882) ... 159, 206, 260, 261, 
 
 281, 282 
 
 s. 21 (Capital money) 206 
 
 8. 22 (Regulations respecting investment, 
 
 etc.) 206 
 
 s. 25 (Improvements authorised by Act) ... 186 
 8. 33 (Application of money under settlement 
 
 powers) ... ... ... ... 206 
 
 8. 56 (Saving) 260 
 
 C.39, (Conveyancing Act, 1882) 394,395 
 
 s. 3 (Notice) 393 
 
 s. 5 (Severance of trust) 319 
 
 c, 75. (Married Women's Property Act, 1882) ... 19, 
 60, 92, 141, 146, 261, 308, 333, 372 
 8. 3 (Loans by wife to husband) ... .. 89 
 
 s. 11 (Policy moneys not part of estate of 
 
 insured) 86 
 
 46 & 47 Vict. c. 52. (Bankruptcy Act, 1883) 85 
 
 s. 44 (Divisible property) 149 
 
 s, 47 (Avoidance of voluntary settlements) : 
 
 41, 85, 86, 326 
 8. 147 (Application of Act to bankruptcy of 
 
 trustee) 297 
 
 c. 61. (Agricultural Holdings (England) Act, 1883)— 
 s. 29 (Power for landlord on paying compen- 
 sation to obtain charge) ... ... 181 
 
 47 & 48 Vict. c. 71. (Intestates' Estates Act, 1884)— 
 
 s. 4 (Escheat of real estate) 152, 183 
 
 8. 5 (Power to sell interest of Crown) ... 310 
 
 50 & 51 Vict. c. 73. (Copyhold Act, 1887)— 
 
 8. 40 (Trustee incapable : others may act) ... 235 
 8. 45 (Copyholds not to descend as chattels 
 
 real) 287,289,290 
 
 51 & 52 Vict. c. 2. (Conversion Act, 1888)— 
 
 8. 10 (Provisions for conversion) 162 
 
 c. 59. (Trustee Act, 1888) 346, 371, 372, 390 
 
 8. 2 (Receipt of money by solicitor or 
 
 banker) 228 
 
 8. 4 (Loans by trustees) 213,216 
 
 s. 5 (Insuihcient mortgage) 347 
 
 8. 6 (Beneficiary instigating breach of trust) 372 
 8. 8 (Statute of Limitations made applicable 
 
 to breaches of trust) ... ... 363 — 365 
 
 52 & 53 Vict. c. 32. (Trust Investment Act, 1889) 158 
 
 53 & 54 Vict. c. 5. (Lunacy Act, 1890) 312,314 
 
 s. 127 (Temporary maintenance) 317
 
 JXVI TABLE OF STATUTES. 
 
 53 & 54 Vict. c. 5. (Lunacy Act, ISdO^—continMcd. PAGE 
 
 s. 129 (Appointment of new trustees) ... 301, 
 
 311, 317 
 s. 133 (Power to transfer stock of lunatic) ... 309 
 s. 134 (Stock in luuatic's name out of juris- 
 diction) 309 
 
 s. 135 (Power to vest lands, etc.) ... 301, 303, 
 
 309, 311, 317 
 s. 136 (Power to vest right to transfer stock, 
 
 etc.) ... 301, 303, 309, 311, 317, 318 
 
 s. 137 (Person to be appointed to transfer) : 
 
 301, 309 
 
 s. 138 (Charity trustees) 301,309 
 
 s. 139 (Declarations and directions)... 301, 309 
 s. 140 (Order to be conclusive evidence) ...301, 309 
 s. 141 (Power to appoint new trustees) ... 294, 
 
 301—303, 309 
 
 s. 142 (Costs) 301, 302, 309 
 
 s. 143 (Saving of power of High Court) ... 302, 
 
 309. 312 
 
 s. 341 (Definitions) 317 
 
 c. G9. (Settled Land Act, 1890) ... 159, 206, 261, 281 
 s. 16 (Trustees) 159 
 
 54 & 55 Vict. c. 75. (Charitable Uses Act, 1891) 113 
 
 c. 76. (Public Health (London) Act, 1891) 181 
 
 55 & 56 Vict. c. 13. (Conveyancing and Law of Property Act, 1892) — 
 
 s. 6 (Trustees) 319 
 
 c. 58. (Accumulations Act, 1892) 47 
 
 56 & 57 Vict. c. 21. (Voluntary Conveyances Act, 1893) ... 89,90 
 
 c. 53. (Trustee Act, 1893) 187,202, 
 
 206, 210,211,302, 390 
 
 s. 1 (Investments) 158, 200, 202, 211 
 
 s. 2 (Price of stocks above par) ... 200, 202 
 s. 3 (Investments to be at trustees' discretion) 202 
 s. 4 (Provisions as to investments retrospec- 
 tive) 202 
 
 s. 5 (Certain trustees to have enlarged powers 
 
 of investment) 202,213 
 
 s. 6 (Powers of trustees who have power to 
 
 invest on real securities) 202 
 
 s. 7 (Stock certificates to bearer) 201 
 
 s. 8 (Precautions on investing money on 
 
 mortgage) 201, 213—216, 226 
 
 s. 9 (lusullicient mortgage) 343,347 
 
 s. 10 (I'owcr of appointing new trustees out 
 
 of court) ... 292, 295, 296, 298, 306, 
 
 309, 319, 332 
 
 s. 11 (Retirement of trustees) ... 292,309 
 
 s. 12 (Vesting declarations) 301, 309, 310 
 
 s. 13 (Joining in joint sale) ... ... 194,264 
 
 8. 11 (Depreciatory conditions) ... 195,265 
 H. 15 (Kot bound to exclude s. 2 of the Vendor 
 
 and I'urchaser Act) ... ... 195,265 
 
 H. 17 (]{(C('i]it of trust money by solicitor or 
 
 banker) 220, 228, 233 
 
 fi. 18 (Fire insurance) 182,198 
 
 H. 19 (lU'iiewal of leases) 186, 357 
 
 H. 20 (Trustees' power to give receipts) ... 267
 
 TABLE OF STATUTES. Ixvii 
 
 PAGE 
 5f) & 57 Vict. c. 53. (Trustee Act, 1893)— co7itimied. 
 
 s. 21 (Power to compound and give time) ... 190, 
 
 191,267,268 
 s. 22 (Survivorship of powers) ... 284, 285 
 
 s. 23 (Power to pay to beneficiary's attorney) : 
 
 219, 272 
 s. 24 (Trustee not liable for default of agent) : 
 
 221, 320 
 s. 25 (Appointment of new trustee by the 
 
 court) 291, 294, 297, 302, 305 
 
 s. 26 (Vesting orders of land) ... 309, 311 
 
 s. 32 (Effect of vesting order) ...309, 311, 313 
 
 s. 33 (Appointing person to convey) ... 313,314 
 
 s. 34 (Vesting orders of copyholds) 309, 
 
 311, 314 
 s. 35 (Vesting orders as to stock, etc.) ... 311, 314 
 s. 36 (Who entitled to apply for appointment 
 
 of new trustees by the court) ... 294, 
 
 309, 311, 316 
 
 s. 37 (Powers of new trustees) ... ... 302 
 
 s. 38 (Costs of appointing new trustees) ... 294 
 s. 41 (Vesting orders of land outside the 
 
 jurisdiction) ... 311 
 
 8. 42 (Payment into court) ... 331,332,334 
 
 s. 44 (Power to sanction sale of surface and 
 
 minerals separately) ... 264 
 
 s. 45 (Beneficiary instigating breach of trust): 
 
 372, 375, 379, 383, 389 
 s. 47 (Application to trustees under Settled 
 Land Acts of provisions as to appoint- 
 ment of trustees) 301 
 
 s. 48 (Conviction of trustee) 149, 151 
 
 s. 50 (Interpretation) 305, 312, 314 
 
 c. 63. (Married Women's Property Act, 1893)— 
 
 s. 2 (Costs) 326 
 
 57 & 58 Vict. c. 10, (Trustee Act, 1893, Amendment Act, 1894)— 
 
 s. 2 311 
 
 s. 4 (Liability of trustee) 191 
 
 c. ccxiii. (London Building Act, 1894) 181 
 
 59 & 60 Vict. c. 35. (Judicial Trustees Act, 1896) ... 188, 190, 196, 
 
 197, 219, 292, 295, 359 
 s. 1 (Power of court on application to appoint 
 
 judicial trustee) 338 
 
 s. 2 (Court to exercise jurisdiction) 338 
 
 s. 3 (Jurisdiction of court in cases of breach 
 
 of trust) 217,360 
 
 s. 4 (Rules) 338, 340, 359 
 
 60 k 61 Vict. c. 65. (Land Transfer Act, 1897) 19, 287 
 
 63 & 64 Vict. c. 62. (Colonial Stock Act, 1900)— 
 
 s, 2 (Poor rate) 202
 
 CORRIGEXDA ET ADDEXDA. 
 
 Pages 66, note (o), and 70, note (/), for " Fanshawe " read " Forshaio" 
 and for "30 Beav. 343" read "30 Eeav. 243." 
 
 Page 109, note (d), for " 4 Q. B. 309 " read " L. R. 4 Q. B. 309." 
 
 Page 111, note (o), for " 16 Eq. 283" read " 9 Eq. 475." 
 
 Page 178, note (o), add " And see also Ee Bird, Dodd v. Evans, [1901] 
 1 Cli. 916, where the insufficient security was an unauthorised 
 investment." 
 
 Pages 179, note (s) and 181 note (i), for "iZe Betty, ib. 831 " read "i?e 
 Betty, [1899] 1 Ch. 821." 
 
 Page 186, note {n), add " And see also Re Walker, Walker v. Duncomhe, 
 [1901] 1 Ch. 879." 
 
 Page 260, note (0, for " L. R. Ir. 35" read " 11 L. R. Ir. 35." 
 
 Page 374, note (s), for " Y. & C. C. C. 336 " read " 1 Y. & C. Ex. 336." 
 
 Page 398, note (/t), for " 29 Ch. D. 763" read "29 Ch. D. 954."
 
 A 
 
 PRACTICAL AND CONCISE MANUAL 
 
 OF THE LAW RELATING TO PRIVATE 
 
 TRUSTS AND TRUSTEES. 
 
 DIVISION I. 
 PEELIMINARY DEFINITIONS. 
 
 ART. PAGE 
 
 1. — Definitions of Trust, Trustee, Trust ProjJerty, Beneficiary, 
 
 and Breach of Trust ....... i 
 
 2. — Definitions of Legal and Equitable Estates - - - - 6 
 
 3. — Definitions of Declared, (or Express) and Constructive Trusts 8 
 
 4. — Definitions of Simple and Special Trusts - - - - 10 
 
 Aet. 1. — Definitions of Trust, Trustee, Trust 
 Property, Beneficiar?/, and Breach of Trust. 
 
 A trust is an equitable obligation, either 
 expressly undertaken, or constructively imposed 
 by the Court, whereby the obligor (who is 
 called a trustee) is bound to deal with propertj^ 
 over which he has control (which is called 
 the trust property), for the benefit of persons 
 (who are called the beneficiaries or cestuis que 
 trust), of whom he may or may not himself be 
 one, and any one of whom may enforce the
 
 PRELIMINARY DEFINITIONS. 
 
 Art. 1. obligation (a). 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. 
 
 Exauunatiou More than one definition of a trust is to be found in the 
 de&iitlon. recognized text books ; but none of these learned and 
 
 excellent works contain a definition which is altogether 
 
 satisfactory. 
 
 The late Mr. Lewin, in his treatise on Trusts, adopts 
 Lord Coke's definition of a use as equally applicable to a 
 trust, namely, "A confidence reposed in some other, not 
 issuing out of the land, but as a thing collateral, annexed 
 in privity to the estate of the land, for which cestui que 
 trust has no remedy but by subpoena 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 definition is obsolete. 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. 
 
 Another eminent author, the late Mr. Spence, defines iv 
 trust as " a beneficial interest in, or beneficial ownership 
 of, 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 respective works on Equity. An almost similar 
 definition is given by Mr. Justice Story, in his comprehensive 
 work on Equity, where he says : " A trust may be defined 
 to bo an equitable right, title, or interest in property, real or 
 personal, distinct from the legal ownership thereof." 
 
 (n) The render ifl referred to Mr. Walter (!. Hart's very inteie.'«ting 
 artiele on " What is a Trust," in tlie Law Quarterly Review for July, 
 IS99.
 
 TRUST, TRUST PROPERTY, ETC. 
 
 It would seem, however, with most unfeigned respect for Art. 1. 
 the memory of those four eminent and learned writers, that 
 their definitions are not definitions of a trust at all, but 
 rather of the beneficial interest or property of persons in 
 whose favour a trust is created. 
 
 Mr. H. A. Smith in his " Principles of Equity " also 
 points out, that Mr. Spence's definition omits to take 
 account of what are known as special trusts, in which the 
 object of the trust is the performance of some particular 
 duty, rather than the vesting of beneficial ownership in 
 some person other than the legal owner ; 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 
 liitherto discussed, is nevertheless not quite accurate, being 
 both too wide and too narrow. 
 
 In the first place, it is too wide ; because it would be 
 almost, if not quite, as good a definition of any other 
 equitable obligation. 
 
 In the second place, it is too narrow ; because a person 
 may be a trustee, without being the legal owner of property ; 
 e.g., he may be trustee of an equity of redemption, or of an 
 equitable interest arising under another trust, or even of 
 an expectancy. 
 
 I have therefore felt myself obliged to reject all the 
 definitions above referred to, and to endeavour to construct 
 an independent one. And in doing so it became necessary 
 to consider the nature of a trust. 
 
 Sir Frederick Pollock, in his learned work on Contracts, 
 considers that a trust is, in its inception, a form of contract ; 
 Imt admits that the complex relations involved in a trust, 
 cannot be conveniently reduced to the ordinary elements of 
 a contract, and that there is sufiicient justification for the 
 course adopted by all English writers of treating trusts as a 
 separate branch of law. 
 
 And indeed, it is sufificiently obvious that, according to 
 English Law, there is at least one important distinction 
 between contracts and trusts, viz., that an executed trust
 
 PRELIMINARY DEFINITIONS, 
 
 Art. 1. may be enforced by a person for whose benefit it was made, 
 although he may not have been party or pri\^^ to it. 
 
 At the same time, there can be no doubt that trusts are 
 somewhat analogous to that class of common law cases, 
 which lie on the border line between contract and tort (of 
 which Coggs v. Bernard (b) 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 performance, a principle 
 which has been adopted in dealing with express trusts. 
 
 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 which was only enforceable in Chancery 
 on the ground that a breach of the duty was so uncon- 
 scientious 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 "(c). 
 
 The obligation is, or at all events in its inception was, an 
 equitable one, enforceable only in courts of equity, although, 
 by recent legislation, all courts take cognizance of trusts. 
 It is also an obligation relating exclusively 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 obligor 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 
 
 {})) 1 Sm. L. C. 167 ; and .see also Fotdke-i v. Metropolitan District 
 RaU. Co., 5C. P. I). 157. 
 
 (c) Encyc. Brit. Art. "Obligation."
 
 TRUST, TRUST PROPERTY, ETC. 
 
 (consisting solely in the trustee being the depositary of the Art. 1. 
 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, e.g., 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 
 appointment. In both cases such persons may become 
 trustees when they receive purchase money or when they 
 exercise the powers confided in them, but until then they 
 are not trustees in the sense in which the word is used in 
 this work. 
 
 Illustrations. 
 
 1. A testator bequeaths £1,000 to A., upon trust to invest 
 it in government stock, and to pay the dividends to B. for 
 life, and 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 would be under an equitable 
 obligation to deal with the £1,000 (the trust property) for 
 the benefit of B. and B.'s children (the beneficiaries) 
 according to the testator's directions. 
 
 2. A., by deed, declares that he holds £1,000 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 one of the beneficiaries. If he were the soli 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 become extin- 
 guished in the beneficial ownership.
 
 PRELIMINAEY DEFINITIONS. 
 
 Art. 2, 
 
 Distinction 
 
 still 
 
 important. 
 
 Aet. 2. — Definitions of Legal and Equitable 
 Estates. 
 
 The interest of a beneficiary in trust property 
 is called an equitable estate, because it was 
 originally only recognized in courts of equity. 
 A legal estate, on the other hand, is that pro- 
 prietary interest which has been acquired with 
 all the formalities which are required by the 
 common or statute law^ for perfecting the owner's 
 legal title, or which has devolved by legal 
 descent. A trustee mostly, but not necessarily 
 or always, has a legal estate in the trust 
 property. 
 
 When the Judicature Act of 1873 (36 & 37 Vict. c. 66) was 
 first passed, it was thought by many that the former dis- 
 tinctions between legal and equitable estates were abolished, 
 and that henceforth every equitable interest would be, iu 
 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, such a change of nomenclature would not 
 do away with the fundamental and ineradicable distinctions 
 which exist between legal and equitable estates. As Lord 
 Selboene said, in introducing the Judicature Act 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 
 property 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 " {d). 
 
 The old legal estate, tlicrefoie, still subsists ; and although 
 equitable estates arc now recognised by all branches of the 
 
 {d) Hansard (n.s.), Vol. 214, p. ;m.
 
 LEGAL AND EQUITABLE ESTATES. 
 
 'Supreme Court (and may therefore in a sense be called Art. 2. 
 legal), it has been found more convenient to retain the old 
 nomenclature, signifying, as it does, a real and substantial 
 difference, which would still exist, even although the tarvis 
 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 equitable, so long as the trust subsists ; but so also 
 may be the estate of the trustee. For instance, the trust 
 property may consist of land mortgaged to a third party. 
 In that case the legal estate would be in the mortgagee, an 
 equity of redemption (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 breach of trust 
 (as will appear later on in this treatise (e) ), it is of vital 
 importance, 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 before that of the 
 •claimant having the legal estate (/). 
 
 Illustrations. 
 
 1. A. conveys freeholds by a formal deed of grant to B. 
 in fee simple, in trust to receive the rents and pay them to 
 C. during his life, and after C.'s death in trust to sell the 
 land and divide the proceeds among C.'s children equally. 
 Here B., the trustee, would have the legal estate. According 
 to the old doctrine of the common law, he would be the 
 absolute owner. The estates of C. and C.'s children, on 
 
 (e) Infra, Art. 8L 
 
 (/) The reader who is desirous of verifying this statement is referred 
 to the following cases, which have arisen since the Judicature Acts 
 •came into operation, viz. : — Cave v. Cave, 15 Ch. D. 639 ; Northern 
 Counties A8>i. Society v. Whipp, 26 Ch. D. 482 ; Garnham v. Skipper, 
 
 34 W. R. 135 ; Taylor v. BlacJdock, 55 L. J. Ch. 99 ; He Vernon, 
 
 35 W. R. 225 ; and see also as to the value of a legal estate, Fox v. 
 Buckley, 3 Ch. D. 511 ; and Dixon v. Brown, 32 Ch. D. 597.
 
 PRELIMINARY DEFINITIONS. 
 
 Art. 2. the other hand, are equitable ; because formerly they were 
 only recognised by courts of equity, and still retain the 
 incidents annexed to them by equity, although now 
 recognised by all courts. 
 
 2. A., the owner of a copyhold estate, on the marriage 
 of his daughter, C, covenants with her and her intended 
 husband that he will duly vest the copyholds in B., upon 
 trusts similar to those stated in the last illustration. Here, 
 until the copyholds are duly surrendered by A., and until 
 B. is duly admitted tenant on the court rolls, the latter has 
 a mere equitable estate, although he is trustee. For copy- 
 holds can only be conveyed at common law by surrender 
 and admittance. 
 
 3. A., by will, devises a freehold estate to B. in fee 
 simple, to the use of C. during her life, and after C.'s death, 
 to the use of B., his heirs and assigns, for ever, in trust ta 
 sell, and divide the proceeds among C.'s children. Here, 
 by virtue of the Statute of Uses, the legal estate is split up 
 into a life estate in C. (who is accordingly a legal tenant 
 for life, and not a mere beneficiary under a trust), with 
 remainder to B. in fee simple. The trust, therefore, is a 
 trust of the reversion, and does not become an active trust 
 until the death of C. When that event happens, the trustee 
 steps into possession of the rents and profits, and his- 
 fiduciary duties become active. 
 
 Aet. 3. — Definitions of Declared (or Express) 
 and Constructive Trusts. 
 
 In relation to their inception, trusts are- 
 divisible into two classes : 
 
 (1) A declared or express trust means a trust 
 created by words evincing an intention 
 to create a trust. If the words be con- 
 tained in a document, such document
 
 EXPRESS AND CONSTRUCTIVE TRUSTS. 9* 
 
 is called a settlement, whether it be a Art. 3. 
 simple writing, a deed, or a will. The 
 person who provides the trust property 
 is called the settlor. 
 
 (2) A constructive trust means a trust which 
 is not created by any words evincing an 
 intention to create a trust, but by the 
 construction of equity, in order to 
 satisfy the demands of justice. 
 
 This classification seems to me to be preferable to that Reasons for 
 usually adopted, of express, implied, and constructive trusts, gcation 
 Some writers class trusts declared by words of prayer, 
 desire, hope, or the like (precatory words), as " implied 
 trusts." Others, on the other hand, class what are known 
 as resulting trusts (that is, trusts arising by implication of 
 equity in favour of a settlor where an express trust has 
 failed, or the like), as "implied trusts." It appears to 
 me, however, that trusts arising from precatory words are 
 essentially express trusts — that is to say, they are expressed, 
 although in ambiguous and uncertain language. Eesulting 
 trusts, on the other hand, are clearly constructive, as they 
 can only arise in the absence of express direction. More- 
 over, the whole of the law as to express trusts is applicable 
 to trusts created by precatory expressions ; and there is, 
 therefore, no justification for treating them as a separate 
 and distinct class. 
 
 Illustjrations of Parageaph (1). 
 
 1. A., by his will, devises property to B., in trust for C. ; Direct ex- 
 that is an express trust. ^""^^^ *^''"^'^' 
 
 2. A., by his will, gives property to B., and prays or Express 
 
 requests him to apply it for the benefit of C. and her trust b}- 
 
 - rr J precatory 
 
 children ; that is an express trust created by precatory words. 
 
 or ambiguous words, and would be called by some writers 
 
 an implied trust.
 
 10 
 
 PBELIMINAEY DEFINITIONS. 
 
 Art. 3. 
 
 Resultiug 
 trust. 
 
 Illustrations of Paragraph (2). 
 
 1. A., by his will, gives property to B. in trust for C, 
 who dies before the testator. Here the trust in favour of 
 C. lapses ; but, as it is obvious that the testator never 
 intended that B. should have the beneficial interest in the 
 property, equity constructs a trust in favour of A.'s heir, or 
 residuary devisee, or personal representatives, or residuary 
 legatee, as the case may require. That is an example of 
 that species of " constructive trust" which is known as a 
 " resulting trust," from the Latin verb resultare, to spring 
 back. 
 
 Pure 
 
 constructive 
 
 trust. 
 
 2. A trustee of a leasehold house, at the termination of 
 the lease, uses his position to induce the landlord to renew 
 the lease to him. Here, equity I'egards the attempt of the 
 trustee to snatch a personal benefit for himself in an- 
 tagonism to his beneficiaries, as an act of ill-faith, and will 
 consequently decree that the trustee must hold the new 
 lease upon the same trusts as he held the old and expired 
 one. That is an instance of a constructive trust, which is 
 not a resulting one. 
 
 Aet. 4. — Definitions of Simple and Special 
 Trusts. 
 
 In relation to the nature of the duty imposed 
 on the trustee, trusts are divided into simple and 
 special trusts : 
 
 (1) A simple trust is a trust in which the 
 trustee is a mere passive depositary of 
 the trust property, with no active duties 
 to perform, and who would, on the 
 requisition of his heneficiaries, be com- 
 pellable in equity to convey the estate
 
 SIMPLE AND SPECIAL TRUSTS. 11 
 
 to them or according to their direc- -Aj^- •*. 
 tion. Such a trustee is called a passive 
 trustee. 
 
 {2) A special trust is a trust in which a trustee 
 is appointed to carry out some scheme 
 particularly pointed out by the settlor, 
 and is called upon to exert himself 
 actively in the execution of the settlor's 
 intention. The trustee of a special 
 trust is called an active trustee. 
 
 Illustrations. 
 
 1. A. devises property unto and to the use of B. in trust Simple trust, 
 for C. Here the trust is a simple trust, as the only duty 
 
 which B. has to perform is to convey the legal estate to C. ; 
 and B. is a passive trustee. 
 
 2. Again, if the trust had been during C.'s life to collect Special trust, 
 the rents and profits, and to pay thereout the cost of 
 
 repairs and insurance, and to pay the residue of such rents 
 and profits to C. during his life, and after C.'s death to hold 
 the property in trust for D., the trust would have been a 
 special trust during the life of C, and B. would have been 
 an active trustee ; for the trustee during that period would 
 have had active duties to perform. But upon C.'s death, 
 the trust would have become a simple trust, and B. a 
 passive trustee, inasmuch as, although there were originally 
 active duties attached to the trustee's ofiice, those duties 
 lapsed by the death of C, and the only duty which remained 
 was to convey the legal estate to D.
 
 DIYISIOX II. 
 
 DECLARED OR EXPRESS 
 TRUSTS. 
 
 CHAPTEE PAGE 
 
 I. — Introduction 12 
 
 II. — blatters essential to tJie prima facie Validity of 
 
 a)i Express Trust 14 
 
 III. — Validity of declared Trusts in relation to latent 
 
 Matters 59 
 
 IV. — The Construction of declared Trusts - - - 94 
 
 CHAPTEE I. 
 
 INTRODUCTION. 
 
 Aet. 5. — Analysis of a Declared or Express 
 Trust. 
 
 (1) A valid and binding express trust is prima 
 facie made if — 
 
 (a) the settlor has used language evincing an 
 
 intention to create a trust (a), and such 
 intention is not negatived by the sur- 
 rounding circumstances (6) ; 
 
 (b) the trust is either created by will, or 
 
 based upon valuable consideration ; or (if 
 neither) the trust property has been either 
 transferred to a trustee, or the settlor has 
 
 (a) Art. 6. {h) Art. 7.
 
 INTRODUCTION. 13 
 
 constituted himself a trustee of it for the Art. 5. 
 purposes of the trust (c) ; 
 
 (c) the trust property is of such a nature as to 
 
 be capable of being settled (d) ; 
 
 (d) the object of the trust is lawful (e) ; 
 
 (e) the settlor has complied with the provisions 
 
 of the law as to evidence (/). 
 
 These prima facie essentials will be 
 examined at length in Chapter II. 
 
 (2) But a trust, prima facie valid, may yet be 
 impeachable from — 
 
 (a) incapacity of the settlor (g), or of the 
 
 beneficiaries (li) ; 
 
 (b) some mistake made by, or fraud practised 
 
 on the settlor, at its creation (i) ; 
 
 (c) fraudulent intention by the settlor, to 
 
 defeat or delay his creditors (Jc) ; 
 
 (d) infringement of the provisions of the Bank- 
 
 ruptcy Acts (I) ; 
 
 (e) fraudulent intention by the settlor to 
 
 defeat the claims of future purchasers 
 from him (m). 
 
 These latent flaws will be considered in 
 Chapter III. 
 
 (3) And lastly, the circumstances under which 
 the trust was created, may be such as to necessi- 
 tate a very liberal construction being given to 
 the language in which it was declared, so as to 
 give effect to the manifest intentions of the 
 settlor (n). These questions of construction will 
 be dealt with in Chapter IV. 
 
 (c) Art. 8. 
 
 {g) Art. 12. 
 
 (I) Art. 16. 
 
 {d) Art. 9. 
 
 (h) Art. 13. 
 
 (m) Art. 17. 
 
 (e) Art. 10. 
 
 (i) Art. 14, 
 
 (n) Art. 18. 
 
 (/) Art. 11. 
 
 {k) Art. 1.5. 

 
 ( 14 ) 
 
 CHAPTEK II. 
 
 MATTERS ESSENTIAL TO THE PRIMA FACIE 
 VALIDITY OF AN EXPRESS TRUST. 
 
 ART. PAGE- 
 
 6. — Language evincing an intention to create a Trust - - 14 
 7. — Of Illusory Trusts --------24 
 
 8. — How far Valuable Consideration necessary to hind Settlor 
 
 or his Representatives - - - - - -27 
 
 9. — What Property is capahlc of being made the Subject of a 
 
 Trust ----..--. 39 
 
 10. — The Legality of the Expressed Object of the Trust - - 45 
 
 11. — Necessity or othericise of Writing and Signature - - 52: 
 
 Aet. 6. — Language evincing an intention to 
 create a Trust. 
 
 (1) No technical expressions are needed for 
 the creation of an express trust {a). It is 
 sufficient if the settlor indicates with reasonable 
 certainty : — 
 
 (a) an intention to create a trust ; 
 
 (b) the purpose of the trust ; 
 
 (c) the beneficiaries ; and 
 
 (d) the trust property {h). 
 
 (2) In particular it has been held that : — 
 
 (a) an imperative direction that property 
 shall be held for certain expressed 
 purpcjsos creates a trust (c) ; 
 
 (a) Dipjile V. Corlc.H, 11 Hare, IS.S ; Cox v. PagCy 10 Hare, 163, 
 Kiiigld V. Knight, 3 ]5eav. 148. 
 
 (r) Ah to how fur gifts "upon coiidilion " or " subject to legacies" 
 or tlie like, create trusts, as (iistiiiguislied from charges or conditions, 
 .see Cuviiivgltam v. Foul, 3 Aj)!). Cas. 1)74, and cases there cited.
 
 LANGUAGE CREATING TEUST. 15 
 
 (b) an agreement for valuable consideration Art. 6. 
 
 that a trust shall be created, creates a 
 trust ; 
 
 (c) a power of appointment among a 
 
 class (c/), unaccompanied by a gift 
 over in default of appointment (e), 
 may create a trust in favour of the 
 objects of the power, if there appears 
 to be an intention tobeneht them (/) ; 
 
 (d) 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 
 and the subject of the gift is well 
 defined and certain {g). The current 
 of modern authority is, however, 
 against construing precatory words as 
 imposing trusts {li). 
 
 The latitude of expression allowed to the creator of a Reasons for 
 trust is an instance of the maxim that " Equity regards the ^Jjlg* ^^"^ 
 intention rather than the form." Wherever the intent is 
 apparent, it will (other matters being in order) be carried 
 into effect, however rudely or elliptically it may have been 
 expressed. 
 
 {d) This principle has been extended to a power of appointment in 
 favour of a single individual, sed qucere, Tweedale v. Tweedale. 7 Ch. D. 
 «33 (see infra, p. 22) ; Wheeler v. Warner, 1 S. & S. 304. 
 
 (e) BurroiujJi v. Philcox, 5 M. & C. 92 ; Grieveson v. Kirsopp, 2 Keen, 
 653 ; Brown v. Hvjcjx, 4 Ves. 708. 
 
 (/) Re Weekes, [1897] 1 Ch. 289. 
 
 (,7) See M u-'i'^oorie Bank v. Raynor, 7 App. Cas. 321. 
 
 (A) Re Diggles, Gregory v. Edmondson, 39 Ch. 1). 253 ; Re Ada^ns 
 and Kensinijtoii Vestry, 27 Ch. D. 394 ; Re Hamilton, Trench v. 
 fiamilton, [1895] 1 Ch. 373, and cases there cited, and Mussoorie 
 Bank v. Raynor, 7 App. Cas. 321.
 
 16 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 6. 
 
 Agreements 
 to create 
 trusts. 
 
 Powers in the 
 nature of 
 trusts. 
 
 Precatory 
 trusts. 
 
 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 such other is to apply it for the benefit of 
 third parties, who are sufficiently pointed out, an express 
 trust will be created, whatever form of words may have 
 been used. 
 
 The rule that a valid agreement to create a trust infuhiro, 
 is sufficient to create a trust in prasenti, so as to bind the 
 property 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 created by an agreement to 
 do something, it depends for its validity on the question 
 whether the agreement is one of which Equity would 
 decree specific performance. If, therefore, it was merely a 
 voluntary promise (or even a covenant under seal, not 
 supported by valuable consideration), no trust will be 
 created ; for there is nothing in the case of such an agree- 
 ment which ought to be done, and therefore nothing which 
 can, under the foregoing maxim, be considered as done, by 
 the court. This distinction between trusts depending on 
 contracts, and trusts actually declared, will be emphasised 
 in Art. 8. 
 
 With regard to trusts arising out of powers of selection, 
 where the trust property is not given over in the event of 
 no selection being made, the court proceeds on the assump- 
 tion that, by giving property to another for distribution 
 among a class according to his discretion, and by making 
 no provision for the destination of the property in the event 
 of such other neglecting to make the distribution, the donor 
 shows a clear intention that the property is to belong to the 
 class equally, unless the donee of the power distributes it 
 among them unequally. 
 
 The subject of precatory words at first sight presents 
 more difficulty, for it is not easy to suppose, at the present 
 day, that a donor intends to impose an enforceable obligation, 
 by means of words indicating request rather than command. 
 The explanation is to be sought in the origin of trusts, and
 
 LANGUAGE CREATING TRUST. 17 
 
 affords a proof of how much EngHsh equity is indebted for Art. 6 
 its principles to the Eoman law. 
 
 The Voconian law precluded the appointment of a female, 
 even when an only child, as heir. In order to evade this, 
 it became the practice of Eoman fathers, to constitute, by 
 will, a qualified male heir, upon trust that he would restore 
 the property to the testator's daughter. Before the time of 
 Augustus, the performance of these trusts [fidei cormnissa) 
 were left entirely to the honesty and conscience of the 
 person trusted ; and consequently, it is 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 Eoman testators usually adopted such 
 forms of expression as _2Jcto, rogo, volo, field tucB comviitto, 
 and the like. When, in the time of Augustus, _/?(^et commissa 
 became enforceable, the question arose whether wills made 
 in the old precatory form were to be considered impera- 
 tive ; 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. 
 
 Whatever may have been the origin of uses (the pre- 
 decessors of trusts) in England, there is no doubt that, at 
 an early stage, they were (on the Eoman precedent) resorted 
 to as a means of regaining the power of devising real estate, 
 which iiad 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 ; and this device, although rendered un- 
 necessary as to freeholds by the statutes 32 Hen. 8, c. 1, 
 and 34 & 35 Hen. 8, c. 5, and the subsequent conversion of 
 all freehold into socage tenure, continued to be used with 
 respect to copyholds down to 1815. The courts of common 
 law refused to enforce these uses, and it would seem that 
 they were commonly and notoriously used for some time 
 before the Court of Chancery interfered ; for in the reign 
 of Henry IV., the Commons complained, that many feoffees
 
 18 DECLAEED OE EXPEESS TEUSTS. 
 
 Art. 6. to uses (trustees) alienated and charged the property 
 confided to them, for which they stated there icas no 
 remedy. 
 
 Consequently, as in the case of the 'Roman fidci commissa, 
 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 Eoman pre- 
 cedents, naturally regard precatory trusts as equivalent 
 to those created by more precisely imperative forms of 
 expression. 
 
 There can be no doubt, however, that the reasons which 
 induced the early Chancellors to construe precatory words 
 as imperative, are no longer of the same force. Cessantc 
 ratione cessat lex ; and although respect for precedent has, 
 until recently, caused the court to construe such expressions 
 as binding on the donee of property, the current has now 
 set strongly in the opposite direction. As Lord Justice 
 LixDLEY said in the course of his judgment in the case of 
 Be Hamilton, Trench v. Hamilton {i): "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 con- 
 strue." In short, the court will now be 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 {k). 
 
 Illustrations of Pakagr.\ph (1). 
 
 Kxi>res8 1. A. devises, or grants freehold lands, unto and to the 
 
 use of B., " upon trust " for C. ; or " directs " him to sell it 
 and pay the proceeds to C, or directs him to apply the 
 
 (t) [1895] 2 Ch. 370. 
 
 {Ic) III. ; and sue to same effect. Re ]Viflia7)i-<, WiUiam-'i v. Wil/iams, 
 f 181)71 2 Ch. 1-2 ; Lamix v. Eatyns, 6 Cli. App. oO? ; /?' Adam.'< ami Ih 
 KeujniKjtou Vintry, 27 Ch. D. 408 ; Re Di<jtjltx, (imjory v. EdmomUou , 
 39 Ch. D. 253 ; MwiHoorie Bank v, Raynor, 7 App. Cas. 321. 
 
 «lircction
 
 LANGUAGE CREATING TRUST. 19 
 
 property for the benefit of C. In all these cases a trust is Art. 6. 
 created in favour of C. (l). 
 
 2. Moreover, where a trust is clearly intended, then No nustec 
 '(subject to the rules as to voluntary trusts set forth in "'"^'^'' • 
 Art. 8, infra) the mere omission to name a trustee will not 
 invalidate the trust ; for it is a maxim of equity that it 
 
 never allows a trust to fail for want of a' trustee. Thus, 
 where, before the Married Women's Property Act, 1882 
 (45 & 46 Vict. c. 75), money was bequeathed to a married 
 woman /or her separate use, it became at law the husband's 
 property ; but in equity the executors were regarded as 
 trustees for the wife, because the intention to create a 
 trust (by which alone the separate use could have any 
 effect) was clear {m). 
 
 3. So if the trustee appointed, fails, either by death (»), Failure of 
 or disclaimer (o), or incapacity (_/;), or otherwise (q), the trustee, 
 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 duty is to convey it to 
 new trustees when properly appointed (s). 
 
 i. Again, if before the Land Transfer Act, 1897 (60 & Direction in 
 61 Vict. c. 65), a testator directed a sale of lands and a divi- f- will that 
 
 Ti T 1^ 11 TTT 1'^"'^ shall 
 
 sion of the proceeds,, but named no person to sell, and aid j^j, soi,i_ 
 not in terms 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 (t). In • cases since the Land Transfer Act, 1897, 
 
 {I) White V. Briggs, 2 Ph. 583. 
 
 (7w) Bollfe V. B udder, Bunb. 187 ; Tappenden v. Wal.sh, 1 Ph. 352 ; 
 Prichard v. Ames, T. & R. 222 ; Green v. Carlill, 4 Ch. D. 882 ; and 
 see Bennett v. Davis, 2 P. W. 216. 
 
 («.) Moggridge v. Thackwell, 3 B. C. C. 528; Att.-Gen. v. Doicning, 
 Amb. 552 ; Tempest v. Lord Camoys, 35 Beav. 201. 
 
 (o) Backhouse v. Backhouse, quoted by Lew. 678 ; Bobson v. Flight, 
 4 I)e G. J. & S. 608. 
 
 {p) Sarley v. Clockmakers' Co., 1 B. C. C. 81. 
 
 (q) Att.-Gen. v. Stephens, 3 M. & K. 347. 
 
 (r) See per WiLMOT, C.J., Att.-Gen. v. Lady Downing, Wil. 21, 22. 
 
 is) Bobson V. Flight, 4 De G. J. & S. 608. 
 
 (f) lb., and Pitt v. Pelham, Free. 134. 
 
 c 2
 
 '20 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 6. however, it is apprehended that the personal representatives- 
 of the testator (acting as his real representatives) would be 
 the persons to sell the property. 
 
 Illusteatioxs of Paragkaph (2) (b). 
 
 Contracts to 1. The most usual instance of trusts arising out of 
 create trusts contract (or trusts in fieri, to use a technical expression) 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 
 agreement are signed, by which, in consideration of the 
 marriage, the parties agree to execute a formal settlement, 
 vesting certain property upon trusts iiadicated more or less 
 roughly ; and thereupon equity, regarding that as done 
 which ought to be done, fastens a trust on the property, 
 and regards any dealings with it inconsistent with the 
 agreement, not only as a breach of contract, but also as 
 a breach of trust. 
 
 2. 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 any property becoming vested 
 in him jure mariti, he immediately becomes a trustee of it, 
 upon trust to transfer it to the trustees ; and until that is 
 done he himself holds it upon the trust declared in the 
 settlement (w). 
 
 Illusteations of Paeageaph (2) (c). 
 
 Powers ill 1. With regard to trusts created by words empowering 
 
 tlie nature another to appoint to a class, with no gift over in defatdt of 
 
 appointment, the leading illustration is Burrough v. PJtil- 
 
 cox (x). There, a testator directed that certain stock 
 
 (n) Lr,n\y. JA/./or/.s-, H Vcs. l.'iO ; W, //rs/, ,/ y. W'llcslcy, 4 M. & C. 
 r)()l ; l.jiHlir V. /SiirmiKj/iM, 1 Dni. & War." 149; J/nsfir v. JIns/ic, 
 'jrii. I). H()4 ; A<i'ir v. i.'iorifr, ih. TOG; Cormn'll v. Kdlh, 8 Cli. D. 767 ; 
 /.'- Tnrraii, 40 (Jli. I). .'J ; AV Clarh', Cnomhr v. C'trt,,; ;«) Ch. D. 348. 
 15ut as to the oH'ecl of tlie(;()V(!iiaiit()i''s l)aiikrii])tc3' liiJ'or< the expectancy 
 vestH, Hco (J(>lli/( r V. Istcarx, 19 Cli. 1). 'M'2. 
 
 (x) .-) My. &' C. 72.
 
 LANGUAGE CREATING TRUST, ^1 
 
 should stand in his name, and certain real estates remain Art. 6. 
 unalienated " until the following contingencies are com- 
 pleted." He then proceeded to give life estates to his 
 •children, with remainder to their issue, and declared, that 
 if his children should both die without issue, the properties 
 should be disj^osed of as after mentioned, — namely, the sur- 
 vivor of his children should have power to dispose by will 
 of the said real and personal estate amongst the testator's 
 nephews and nieces, or their children, either all to one of 
 them, or to as many of them as his, the testator's, surviving 
 child should think proper. It was held that a trust was 
 created in favour of the testator's nephews and nieces, and 
 their children, subject only to a power of selection and dis- 
 tribution; Lord CoTTENHAM saying, " Where there appears a 
 general intention in favour of a class, and a particular 
 intention in favour of individuals of a class to be selected 
 by another person, and the particular intention fails from 
 that selection not being made, the court will carry into 
 •effect the general intention in favour of the class." 
 
 2. And so, where a testator gave personalty to his widow 
 for life, and to be at her disposal by her will, " therewith to 
 apply part for charity, the remainder to be at her disposal 
 among my relations, in such proportions as she may be 
 pleased to direct " ; and the widow died without appointing 
 the property ; it was held that half was to be held in trust 
 for charitable purposes, and the residue for the testator's 
 relatives according to the Statutes of Distribution (y) . 
 
 3. The fact of there being a gift over in default of selection, Gift over in 
 is, however, fatal to any trust under the present rule, even a'j^'ointmeut 
 although the gift over is void(0). But a residuary gift is destroys 
 not " a gift over " for this purpose {a). implied trust. 
 
 i. Moreover, even where there is no gift over, there must ^^ iinplied 
 be a general intention apparent to benefit the class. Thus, general inten- 
 tion to benefit 
 apparent. 
 (y) Salusbury v. Denton, 3 K. & J. 529 ; ^e Caplin, 2 Dr. & Sm. 527 ; 
 Little V. Neil, 10 W. R. 592 ; Goiiyh v. Bult, 16 Sim. 323 ; and see also 
 lie Sumnni, 47 L. J. Ch. 65 ; Butler v. Gray, 5 Ch. App. 26. 
 (z) Re Sprayue, Mihy v. Cape, 43 L. T. 236. 
 (a) Re Brierley, 43 W. R. 36.
 
 trusts. 
 
 22 DECLAEED OR EXPRESS TRUSTS. 
 
 Art. 6. in Be Weekes (h), there was a gift to tlie testatrix's liusbancT 
 for life, with power by deed or will to dispose of the pro- 
 perty amongst their children. Komer, J., after elaborately 
 examining all the decisions, pointed out that there was no 
 , gift to such of the class 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 apparent in cases 
 where the selection only was confided to the donee of the 
 power. This case appears to the present writer to be incon- 
 sistent with that in Tioeedale v. Twecdalc (c), which would 
 probably not now be followed. 
 
 Illustrations of Paragraph (2) (d). 
 
 Precatory 1. With regard to precatory words, it was, at one time, 
 
 often a matter of difficulty to decide whether a trust was 
 created or not. A testator bequeathed property to A., and 
 stated, either that he "hopes and doubts not " (f/), 
 " entreats " {e), " recommends " (/), " desires " {g), " re- 
 quests " (li), or " well knows " (i), that it will be applied for 
 the benefit of B. In such cases, according to the older autho- 
 rities, a trust would be created in favour of B., unless the 
 property or the mode of its application for B.'s benefit, were 
 ambiguously or insufficiently stated, or unless there were 
 expressions inconsistent with an imperative trust, e.g., 
 where the bequest was to the legatee " for his sole use and 
 benefit " (A;), or for "her absolute use " (/). But as above 
 stated, no technical meaning is now given to precatory 
 
 (6) [1897] 1 Ch. 289 ; and see also Carhtrnj v. McCarthy, 7 L. R. Ir. 328. 
 
 (. ) 7 Cli. I). 033. 
 
 (d) Pnal V. Coinp/oii, S Vi-s. 3S(». 
 
 (r) Pnrosl v. Chrrkc, 2 Wadd. 4r)8. 
 
 ( /■) Tihl,il.-< V. Tihhits, 19 VcR. (i.")7. 
 
 ((,) nirrh V. \y<i(/', 3 V. & 15. 1!)8. 
 
 (/i) Folijf V. lUtrry, 2 M. & K. 138 ; and see also lie Hutchhxj.'i, 
 \V. N. (1887) p. 217, wliere Kav, J., held that -where real estate was 
 devised to a female, acc()ni])ani(;d hy an cx])ressi()n of the testator's 
 " wish and rcijuest " that she sliould not sell it, the female was during 
 coveituie restrained from anlicipiUiou. 
 
 (/) liri'ins V. /'tiiiii/, 3 M. & (;. .")!(!; hut sre Shai/ v. Mellor, 
 r> Ch. 1). 225. And as to i)iuc'al()r\' trusts generally, see notes tO' 
 HardiiKj v. (Jl.yn, 2 V\'h. k Tu. 33.'>. 
 
 (k) (ircinx.' Miir.Hfli ,1. I Dr. (i4(). 
 
 (/) li< Adiiwxiiii'l Ih' K< li^hnilnii |V ,s//y, •_'; ( 'h. I). .S'.H.
 
 LANGUAGE CREATING TRUST. 28 
 
 words, and each will must be construed by itself without Art. 6. 
 regard to previous cases, the sole question being whether or 
 not the testator has manifested an intention to impose on 
 the legatee any fiduciary duty (m). 
 
 As Sir A. HoBHOusE, in delivering judgment in Mussoorie Modem 
 Bank \. Baynor (n), said: "Their lordships are of opiiiio^^ a^ainst^ijre- 
 that the current of decisions, now prevalent for many years catory trusts, 
 in the Court of Chancery, shows that the doctrine of pre- 
 catory trusts is not to be extended ; . . . Now these rules 
 are clear, with respect to the doctrine of precatory trusts, 
 that the words of gift used by the testator must be such that 
 the court finds them to be imperative on the first taker of 
 the property, and that the subject of the gift over must be 
 well-defined and certain. If there is uncertainty as to the 
 amount or nature of the property that is given 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 reflex action upon the previous 
 words, and throws doubt upon the intention of the testator, 
 and seems to show that he could not possibly have intended 
 his words of confidence, hope, or whatever they may be — 
 his appeal to the conscience of the first taker — to be 
 imperative words (o)." 
 
 Obseevation. • 
 
 In order to obviate any confusion in the reader's mind, it 
 is desirable at this place to draw attention to the fact that 
 he must carefully distinguish between cases in which it has 
 been held that precatory words are not imperative, and 
 
 (m) Seeder Lixdley, L.J., He Hamilton, Trench v. Hamilton, [1895] 
 2 Ch. 370, 373 ; i?e Williams, Williams v. Williams, [1897] 2 Ch. 12 ; 
 Re Diggles, Gregory v. Edmondson, 39 Ch. D. 253 ; and Hill v. Hill, 
 [1897] 1 Q. B. 483, cases which appear to have overruled the former 
 decisions, such as Gurnick v. Tucker, 17 Eq. 320, and Le Marchant v. 
 Le Marchant, 18 Eq. 414. 
 
 (n) 7 App. Cas. 321. 
 
 (o) For other decisions on doubtful words see Woods v. Woods, 
 1 M. & C. 401 ; Grockett v. Crockett, 2 Ph. 553 ; Talbot v. O'Sidlivau, 
 6 L. R. Ir. 302 ; and see Bird v. Mayhery, 33 Beav. 351 ; Hora v. 
 Hora, 33 Beav. 88 ; Gastlt v. Castle, 1 De G. & J. 352 ; and Atkinson v. 
 Atkinson, 62 L. T. 735.
 
 *24 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 6. raise no trusts at all, and cases in which the words actually 
 used, or the surrounding circumstances, make it clear that, 
 although the donor has not sufficiently specified the property, 
 the objects, and the way it shall go, yet he never meant 
 the donee to take the entire beneficial interest. In such 
 cases, which are treated of in Division III., the law implies 
 a resulting trust in favour of the donor or his representatives. 
 Cases of precatory words must also be carefully distin- 
 guished from those constructive trusts which arise out of 
 the fraud of those to whom a settlor communicates a dis- 
 position which he has formerly made in their favour, but 
 at the same time tells them that he has a purpose to answer, 
 w^hich he has not expressed in the formal instrument, and 
 which he depends upon them to carry into effect, and to 
 which they assent. 
 
 Art. 1 .—Of Illusonj Trusts. 
 
 Where persons are, by the form of the settle- 
 ment, apparently beneficiaries, but the object of 
 the settlor, as gathered from the whole settle- 
 ment, does not appear to have been to create a 
 trust for tlieir benefit., they cannot call upon the 
 trustee to carry out the settlement in their 
 favour. 
 
 Illustkations. 
 
 <'rc'(Htor'H 1. Thus, where a person who is indebted, makes provi- 
 
 iiisi (lecrls. gJQj-| Iqi^. pjj^ymQnt of his debts generally, by vesting property 
 in trustees upon trust to pay them, but does so beliind the 
 backs of the creditors and without connnunicating witli 
 them, the trustees do not necessarily become trustees for the 
 creditors. " Tlie motive of tlie ])arty executing the deed 
 may have been either to benefit his creditors or to promote 
 his own convenience ; and the court has therefore to 
 examine into the circumstances for the purpose of ascer- 
 taining what was the true purpose of the deed ; and this
 
 OF ILLUSORY TRUSTS. 25 
 
 -examination does not stop with the deed itself, but must Art. 7. 
 be carried on to what has subsequently occurred, because 
 the party who has created the trust may, by his own con- 
 duct, or by the obligations which he has permitted his trustee 
 to contract, have created an equity against himself" (jj). 
 
 No doubt in the case of a trust deed for the benefit of 
 creditors generally, the inference is that it was 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 paying certain debts, and such a trust is revocable, the 
 debtor being, in fact, the sole beneficiary (q). But on the 
 other hand, where the creditors are parties to the arrange- 
 ment, the inference then is, that the deed was intended to 
 create a trust in their favour, which they are entitled to call 
 on the trustee to execute (r). 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 impliedly 
 told them that they may look to the trust property for 
 payment, they may become cestuis que trusts (s) if they 
 have been thereby induced to exercise forbearance in respect 
 of their claims it) ; or if they have assented to the deed 
 and actively (and not merely passively) acquiesced in it, or 
 have acted under its provisions and complied with its terms, 
 and the other side has expressed no dissatisfaction, but not 
 otherwise (?t). Moi'eover, 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 
 
 (p) Per Turner, V.-C, Smith v. Hurst, 10 Hare, 30. 
 
 [q) Waltryn v. Coxtts, .3 Sim. 14 ; Garrard v. Lauderdale, 3 Sim. 1 ; 
 Acton V. Woodcjate, 2 My. & K. 495 ; Bell v. Cureton, ih. 511 ; Gihbs v. 
 Glamis, 11 Sim. 584 ; Henriquez v. Benmisaii, 20 W. R. 350; Johns v. 
 James, 8 Ch. D. 744 ; Henderson v. Rothschild, 33 Ch. D. 459. But 
 see Re Fitzgerald, 37 Ch. D. 18, and Priestlnj v. Ellis, [1897] 1 Ch. 489, 
 deciding contra as to trusts for creditors after settlor's deatli. 
 
 (?') Mackinnon v. Stewart, 1 Sim. (n.s. ) 88; Le Touche v. Earl of 
 Lucan, 7 C. & F. 672 ; Montefiore v. Brown, 7 H. L. Cas. 241 ; and see 
 Synith v. Cooke, [1891] A. C. 297. 
 
 («) Lord Cranworth in Synnot v. Simpson, 5 H. L. Cas. 241. 
 
 (t) Per Sir John Leach in Acton, v. Woodgate, supra. 
 
 («) Per Lord St. Leonards in Field v. Dononghmore, 1 Dru. & War. 
 227 ; see also Nicholson v. Tut tin, 2 K. & J. 23 ; Kir man. v. Daniel, 
 5 Hare, 499; Griffith v. Ricketts, 7 Hare, 307; Cornthiraite v. Frith, 
 4 De G. & S. 552 ; Sigger v. Evans, 5 Ell. & B. 367 ; Gould v. Robertson, 
 4 De G. & S. 509.
 
 2(3 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 7. 
 
 Direction to 
 tnistees to 
 pay costs, 
 etc. 
 
 Direction to 
 eniplo}' and 
 pa}- a named 
 person. 
 
 general body of his creditors) (.r), 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 his death with remainders over (?/). And where it 
 provides for such payment either in the settlor's lifetime or 
 after his death, it can (it would seem) be enforced by the 
 creditors unless he revokes it in his hfetime (z). 
 
 2. So, where there was an assignment of property to 
 trustees upon trust to pay all costs, charges and expenses 
 of the deed, and other incidental charges and expenses of 
 the trust, and to reimburse themselves, and then to pay 
 over the residue to third parties, it was held, that a solicitor 
 who had prepared the deed, and had acted as solicitor to 
 the trustees, was not a beneficiary. It was not that the 
 trust did not provide for the costs, or that they were not to 
 be paid, but simply that the solicitor was not a beneficiary 
 under the trust for the payment of them. The trust might 
 of course be enforced, but not by the solicitor (a). 
 
 3. It was atone time considered, that a positive direction 
 to the trustees of a will to employ a particular person and 
 to allow him a salary, created a trust in his favour (5) ; 
 but this view can no longer be supported, the House of 
 Lords having decided the contrar}^ in the leading case of 
 Shaw V. Lawless (c). Thus, a direction in a will appointing^ 
 a particular person solicitor to the trust estate, imposes 
 no trust or duty on the trustees of the will to continue 
 such person as their solicitor in the management of the 
 estate (d). 
 
 Funds con- i. The funds voted by Parliament for the public service 
 
 ^'^. ^"ptate g^j,g j^Qj. ^^.^g^ funds in the hands of the Secretaries of State 
 
 otncials for 
 «ti.«tril)ntion. 
 
 {x) Xfir, ,tc. Trust,, V. Iluiitluii, [18971 2 Q. B. 19. 
 
 (y) Seeyy/- L<jrd Ckanwoktii in Sipiiiot v. Simpson, 5 H. L. Cas. 1"21. 
 
 (■:) ]',i,Hlhy V. Ellis, [l.S!)7J 1 Ch. 4S9. 
 
 Ui) ]Vorr,il V. Jlitrfoid, 8 Ves. 4; Fost,r v. Elshy, 19 Ch. D. 518. 
 See also Stri'khintl v. Syinons, 2(i Ch. D. 24.'i ; and Stauiiiar v. Evaivty 
 .'M Ch. D. 470, negativing the right of a creditor of trustees to proceed 
 against the ,'slati . 
 
 (I,) Will„tm>i V. Corh'tf, 8 Sim. 349 ; Jlihhert v. Ilihhert, 3 Mer. 68U 
 
 (,•) -) C. & F. 129. 
 
 ('/) Fostu- V. Elsl,,/, 19 Cli. D. 518 ; Fiiuhn v. Stiphens, 2 Ph. 142.
 
 OF ILLUSORY TRUSTS. 27 
 
 who receive them from the Treasury (e). And even where Art. 7. 
 her late Majesty, by royal warrant, granted booty of war to 
 the Secretary of State for India in trust to distribute amongst 
 the persons found entitled to share in it by the Court of 
 Admiralty, it was held that the warrant did not operate as 
 a declaration of trust, but merely made the Secretary of 
 State the agent of the Sovereign for the purpose of distri- 
 buting the fund (/'). The late Lord Justice James, in 
 giving judgment, said: "The instrument was a warrant, 
 and I am of opinion, although the term * grant ' is used as 
 being the effect of the warrant, that the instrument is what 
 it purports to be, a warrant. It is a direction by the 
 Sovereign, ordering and authorising that Sovereign's servant, 
 having possession of the Sovereign's money, to deal with it 
 in a certain way, and the word ' trust ' introduced into the 
 warrant has really no magical effect. It does not become a 
 trust in the sense of a trust cognizable and enforceable in a 
 court of law, because that word is used. . . . The 
 Secretary of State (whichever Secretary of State for the 
 time being it is who has to deal with this matter), deals 
 with it as the agent of the Crown, bound no doubt under his 
 responsibility to Parliament, and the moral responsibility 
 which the Crown itself has undertaken from having once 
 made this intimation of bounty, but subject to accounting 
 to the Sovereign, and subject to accounting to Parliament 
 in case there is any malfeasance or nonfeasance in the 
 matter." 
 
 Art. 8. — Hoiv far Valuahle Consideration neces- 
 sary to hind Settlor or his Hepresentatives. 
 
 (1) The court ^Yill enforce a voluntary trust, 
 even against the settlor or his representatives, 
 if— 
 
 (a) it is created by %Yill ; oy, 
 
 (e) Grenville-Murray v. Clarendon [Earl), 9 Eq. 11. 
 (/) Kinlochw Secretary of State for India, 15 Ch. D. 1.
 
 28 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 8. (b) the settlor has transferred, or done all in 
 
 his po^Yer to transfer, the trust property 
 to a trustee ; or, has expressly or by 
 conduct constituted himself a trustee for 
 the purposes of the trust (g). 
 
 (2) In other cases the court will not enforce a 
 voluntary trust if the settlor has vierelij under- 
 taken, or even covenanted, to create a trust, or 
 otherwise manifested an incomplete intention to 
 do so (//). 
 
 (3) Even where valuable consideration has 
 been given for an incomplete trust, it will only be 
 enforced if some person privy to that considera- 
 tion seeks to have it enforced (/). But if enforced 
 at all, it will be enforced in favour of all the 
 beneficiaries, and not merely of persons privy to 
 the consideration. In that case the settlor, or 
 his successors in title (other than purchasers for 
 value without notice), will be regarded as passive 
 trustees, charged with the duty of transferring 
 the trust property to active trustees when 
 appointed (/.). 
 
 (4) Persons privy to valuable consideration 
 comprise — 
 
 (q) ElUmn V. ElUsov, 2 Wh. & Tu. 83r> ; Milrotj v. Lord, 4 De G. 
 F. '& .J. 2G4 ; liirhnrdx v. Jhlbrklqr, 18 Eq. U ; Ex parte Pye, 
 18 Ves. 140 ; Di/iplf^ v. Corlcs, 1] Hare, 184 ; Antrobm v. Smith, 12 Ves. 
 39 ; J^r AiKjihiiit, If) Cli. 1). 222 ; AV; Av.stis, Clutin/nd v. Monjaii, 
 'M CI). 1). .")!>() ; (I'rreii. v. J'altrKon, '.^2 Ch. 1). O.') ; Re l\irhards, Shmstone v. 
 /irorL; -M Cli. 1>. 541 ; Hardiiuj v. Ilardiwj, 17 Q. B. D. 442. 
 
 (Ii) Milroi/ V. Lord, nupra. But nevertlicless, where a voluntary 
 settlor has entei'ed into a covenant for title under seal, the grantees 
 will at law he entitled to recover damages for hreach of the covenant 
 (!{<'. Eord, dUhirt v. (lillirrt, (i.S L. T. .'»57). And see also Re Patrick, 
 IHUh v. Tal/iam, |18!)11 1 Ch., at j). 88. 
 
 (/) Cases eiteti in note (7), and (•(t/c v. (,'id(\ (> Cli. 1). 144 ; Coh/earv. 
 L<idi/ Midi/nirr, 2 Kee. 81 ; Danvport v. /!is/i<,/./>, 2 V. & C. 451 ; 
 7'ad-rr v. Sinad, li My. & Cr. (>!». 
 
 (/;) See JJarrnpor-t v. Ji^hd/jj), sii/mi. ; Dodkiii. v. Brunt, 6 Eq. 580 ; 
 Ijti. v. 1.(1', 4 Ch. 1). 17.') ; Re MkheU, G Ch. D. U18 ; Rol»iOii v. Flight, 
 4 De <;. .1. <t S. U(»8.
 
 HOW FAR VALUABLE CONSIDERATION NECESSARY. 29> 
 
 (a) the person by whom, or at whose request, -^-rt. 8. 
 
 it is given (/) ; 
 
 (b) the children of a marriage, where that 
 
 marriage is itself the consideration (m) ; 
 
 (c) trustees for any of the foregoing (7^). 
 
 (5) A beneficiary under a voluntary trust, or 
 who is not privy to valuable consideration (where 
 the trust is based on value), is called a volunteer. 
 
 It is a well-known maxim, that equity gives no assistance Attitude 
 to volunteers ; but, like many other epigrammatic expres- tow-u-ds^ 
 sions, it cannot be accepted literally. The true rule is, volunteers, 
 that equity will give no assistance to volunteers for the 
 purpose of enforcing an inclioate intention to confer a bottnty. 
 Where a trust has once been completely declared, or a gift 
 completely made, equity will enforce the trust, or uphold 
 the gift, whether the party applying for relief gave valuable 
 consideration or not. As Mr. Justice Kay said in Henry v. 
 Armstrong {0), "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 property, is bound by 
 his own act." And the same result follows if he has 
 declared himself, or afforded clear evidence that he con- 
 sidered himself, a trustee of it in irrcescnti. At one time 
 it was considered, that where a man was under the erroneous 
 belief that he had made an actual gift of property, equity 
 would construe that as evidence that he considered himself 
 a trustee of it for the donee. It will, however, be seen 
 from the illustrations given below that this view can no 
 longer be supported. For the fact that a person supposes 
 that he has detiuded himself of property cannot reasonably 
 be accepted as evidence that he considered himself a trustee 
 
 (Z) See per Wilde, C. J., Blandy v. De Burgh, 6 C. B. 634 ; Tweddle v. 
 Atkimon, 1 B. & S. 393. 
 
 {m) See Osgood v. Strode, 2 P. W. 245 ; Gale v. Gale, siipra. 
 
 {n) See per Lindley, L..J., Re Anstis, Chetwynd v. Morgan, 
 31 Ch. D. 596, 606. 
 
 (o) 18 Ch. D. 668.
 
 30 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 8. of it. On the contrary, it is inconsistent with any such 
 theory ; for a man cannot at the same time behave that he 
 has given away property, and yet that he holds it upon 
 trust for another. In short, the intention to confer a volun- 
 tary benefit is not sufficient ; there must be either a benefit 
 actually conferred by a legal transmutation of the thing 
 given from the donor to the donee, or to a trustee for the 
 donee, or else evidence that the donor actually constituted 
 himself a trustee of the property for the donee, which 
 evidence is afforded either by the declarations of the donor, 
 or from a course of conduct showing that he considered 
 himself in the position of a trustee. 
 
 Trusts based With regard, however, to trusts based on valuable con- 
 on \ a ue. sideration, equity will enforce them, at the suit of a person 
 privy to tliat consideration, wherever an intention to create 
 a trust, whether in the present or the future, appears. For 
 equity considers that to be done which ought to be done ; 
 and the settlor, having received value for the creation of a 
 trust, will be made to carry out his bargain according to the 
 intention of the parties, however informally that intention 
 may have been expressed, and even although no trustee 
 has been named. For the court will never allow a trust to 
 fail for want of a trustee, but will, if the parties have used 
 language sufficiently explicit to enable the coitrt to gather 
 their intentions, fasten the trust on the estate, and, if 
 necessary, jippoint active trustees to carry it out. 
 
 I'arty cannot Even, however, where value is given, an inchoate tnist 
 
 enforce, ^qj Qj-,|y j-^g enforced at the instance of a person privy 
 
 unless pri\'}' •' . ^ •' 
 
 u> the con- thereto ; and, notwithstandmg some dicta which seem to 
 
 Mdcraiion. indicate a contrary view, it is believed that there is no 
 
 authority for supposing that a person who is made party to 
 
 a mere contract for a settlement, but who is not privy to the 
 
 consideration, can enforce it Q;). Where, however, a person 
 
 privy to the consideration seeks to enforce an executory 
 
 (/,) hror V. Mart<v, 2 H. & M., at p. 133; Fry, Spec. Perf. sect. 92 ; 
 Tin ill//. V. Al/c'ui»ou, 3UL. J. Q. ]J. -26.1 : Chitty on Contracts (ed. 1881), 
 p. 'A.
 
 HOW FAR VALUABLE CONSIDERATION NECESSARY. 31 
 
 trust, the court will enforce it not only in his favour, but in Art. 8. 
 favour of all parties, volunteers included. 
 
 It was, until quite recently, considered, that the children Who afc 
 of a widow, who, on a second marriage, made or procured J^o^Jderation 
 a settlement in their favour, became privy to the valuable of man-iage. 
 consideration of the marriage, and could enforce the per- 
 formance of a covenant or incompleted trust (q). Moreover, 
 in Clarke v. Wright (r), 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 where he was not the settlor, on 
 the ground that a benefit to these relatives must have 
 formed part of the marriage bargain. It is difficult to see, 
 however, how these persons could have been privy to the 
 consideration, although the bargain between husband and 
 wife was • a bargain founded on value ; and by a recent 
 decision of the Privy Council (s), Clarke v. Wright was 
 expressly overruled. In giving judgment. Lord Selboenb 
 said (speaking of the decision in Clarke v. Wright) : " It is 
 apparent that the court proceeded upon the view that the 
 case of Neivstead v. Searles (t) was an authority for the 
 proposition that a settlement by a widow about to marry, 
 upon her children by a former marriage, is good against a 
 subsequent mortgagee, putting it in that general way without 
 any reference to more special reasons." His lordship then 
 proceeded to show that Neivstead v. Searles and other cases 
 were in realty no authorities for that proposition, and on 
 that ground expressly overruled Clarke v. Wright. It is, 
 therefore, apprehended that although their lordships did 
 not express their dissent from the case of Gale v. Gale (q), 
 in which that proposition was expressly affirmed by Mr. 
 Justice Fey, they nevertheless have in effect overruled it 
 as well as Clarke v. Wright. 
 
 (q) Gale v. Gale, 6 Ch. D. 144. (r) 6 H. & N. 849. 
 
 (s) Be Mestre v. ^^e.s■^ [1891] A. C. 264 ; and see also Mackie v. 
 Jlerberfson, 9 App. Cas. 303, 337 ; Be Cameron and Wells, 37 Ch. D. 32 ; 
 and Alt. -Gen. v. Jacohi^-Smith, [1895] 2 Q. B. 341, where such a limita- 
 tion was held voluntaiy for purposes of account duty. 
 
 (t) 1 Atk. 264.
 
 32 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 8. 
 
 Part vested 
 in trustees 
 and part 
 agreed to be 
 conveyed 
 to them. 
 
 Executed 
 trust cannot 
 lie Ijroken. 
 
 IlLUSTEATIONS of PaKAGRAPHS (1) AND (2). 
 
 1. In Je fries v. Jeffries (./■), 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 both freeholds and copyholds to his wife. Upon 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 decree a surrender of the copyholds ; for with 
 respect to them, the settlor had neither declared himself a 
 trustee, nor had he transferred them to the trustees, but 
 had merely entered into a voluntary contract to transfer 
 them, which, being a nudum pactum, was of no greater 
 validity in equity than at law {x). 
 
 2. By a marriage settlement, the wife's property was 
 settled (after life estates to the husband and wife), in 
 default of children, in trust for the wife if she should 
 survive the husband ; but in the event of the husband 
 surviving tlie wife, then upon such trusts as the wife should 
 hy xvill appoint, and, in default of appointment, in trust for 
 her next of kin. There was no issue of the marriage, and 
 the wife was past the age of child-bearing, and 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 were mere volunteers. The Court 
 of Appeal, however, refused to permit this, Jessel, M.E., 
 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 
 ccstuis que trusts. That lias been the rule ever since the 
 
 (.(■) ./t/l'ri's V. .hjj'rlis, V,v. & I'll. l.SS; and see also /i i :.:.(• i/ v. Flight , 
 24 \V. li. Oiiy, read in conjuiK'tioii with the remarks of LiNDLKY, L.J., 
 ill /.V I'dlrirl:, IHIIh v. Tdlliaiii, [IHDIJ 1 Cli. 82; and see Marler v, 
 Tommas, 17 J0<|. H.
 
 HOW FAR VALUABLE CONSIDERATION NECESSARY. 83 
 
 Court of Chancery existed." And Cotton, L.J., added : Art. 8, 
 " I assume that this trust would not have been enforced 
 if it ivere 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 " (y). 
 
 3. In Gilbert v. Overton (z), A., having an agreement for Voluntaiy 
 a lease, executed a voluntary settlement assigning all his tio"of eJ^it. 
 interest in the agreement to trustees upon certain trusts, able interests. 
 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 ; but Vice-Chancellor 
 Wood 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." 
 
 i. In Kekewich v. Manning [a), residuary personal estate 
 was bequeathed to a mother for life, with remainder to 
 her daughter absolutely. The daughter, on her marriage, 
 assigned all her interest under the will to trustees upon 
 certain trusts, not material to be stated, with a final trust 
 in favour of her nieces. Although, qua the nieces, the 
 settlement was voluntary, it was held that it was good, on 
 the ground that the daughter had done all she could to 
 divest 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 (&). 
 
 (y) Paul V. Paul, 20 Ch. D. 742. 
 
 (2) 2 H. & M. 110. (a) 1 De G. M. & G. 176. 
 
 (h) The chief difficulty is to determine what is a complete assignment 
 and what is not. See Donaldson v. Donaldson, Kay, 711 ; Edivards v. 
 Jones, 1 My. & Cr. 226 ; and Pearson v. Amicable Assurance Co., 
 27 Beav. 229 ; and Fortescue v. Barnett, 3 My. & K. 36 ; Sewell v. King, 
 14 Ch. D. 179 ; Harding v. Harding, 17 Q. B. D. 442 ; Nanney v. 
 Morgan, 37 Ch. D. 346 (equitable interest in shares) ; and Re Earl 
 of Lucan, Hardinge v. Cohden, 45 Ch. D. 470.
 
 34 
 
 DECLAEED OE EXPEESS TEUSTS. 
 
 Art. 8. 5. 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. In short, the assignment is made in the 
 policy itself instead of by a subsequent deed (c). 
 
 Debts 
 assigned, 
 but subse- 
 quently got 
 in by settlor. 
 
 6. In Bizzey v. Flight (d), A. {iiiter alia) assigned certain 
 mortgage debts to trustees upon certain trusts. The settle- 
 ment, however, contained no transfer of the mortgage 
 securities. A. subsequently received the money due on 
 some of the mortgages, the trustees receiving the money 
 due on others. It was held by Hall, V.-C, that as the 
 mortgaged property was not transferred to the trustees, the 
 settlement was essentially incomplete, and, being a volun- 
 tary settlement, was void. In a more recent case before the 
 Court of Appeal, however (e), in which the only difference 
 was that the mortgage was a bill of sale of chattels, the 
 court held that the settlement was complete and binding, 
 and threw some doubt on the correctness of the decision in 
 Bizzey v. Flight. 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 re-convey the mortgaged property, whereas, 
 on payment of a bill of sale, no re-assignment of the 
 mortgaged chattels is required. 
 
 1 )eclaration 
 of trust im- 
 ])liefl from 
 'oruluct. 
 
 7. A testator bequeathed £2,000 on certain trusts, and 
 he 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 £3,000, and not £2,000, said 
 to the legatee's father : "It shall make no difference, and 
 
 (c) lie Davits, Davia v. IJarirn, [1892] 3 Ch. 63; and see also 
 He FlaviU, Murray v. FlardI, 2o Ch. D. 89; Wilson v. Bury, 
 5 Q. li. I). 18 ; and Ashhy v. CW/h, 21 ih. 401. 
 
 (d) 24 W. K. 5);j7. (Jiiare whuthor, if the settlement had been made 
 Hjncc tlie Judicature Acts, tlie omissicju to give notice to the debtor 
 would not liave bemi fatal. 
 
 (') /it Patrick, Bids v. Ta/ham, [1891] 1 Ch. 82.
 
 HOW FAR VALUABLE CONSIDERATION NECESSARY. 35 
 
 I will take care that he (the legatee) shall have £1,000 more Art. 8. 
 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 pay- 
 ments, viz., the 6th July and the 6th January in each year, 
 being interest at four per cent, on £3,000." He also signed 
 a further memorandum, stating that he had told the legatee 
 that he should make the £2,000 up to £3,000 ; and down to 
 his death he in fact paid interest on the £3,000. On these 
 facts, it was held that the executor had effectually declared 
 himself a trustee of the additional thousand (/). 
 
 8. Again, a testatrix gave her personal estate to B. for 
 the benefit of B.'s daughters. B. invested the produce, 
 together with £1,000 of his own moneys, in stock in 
 his own name, and afterwards treated and admitted the 
 aggregate fund as held in trust for his daughters. On his 
 •death the fund was found mixed with like funds of his own. 
 It was held that, under the circumstances, there was 
 sufficient to show that B. considered himself a trustee of 
 the £1,000 in favour of his daughters (g). 
 
 9. In Ex jMvte Diobost (/i), the alleged settlor wrote to an 
 ■agent in Paris, authorising him to purchase (and the agent 
 accordingly did purchase) an annuity for the benefit of a 
 lady whom he named ; but as the lady was married, and 
 also deranged, the annuity was purchased in the name of 
 the settlor. The settlor then sent the agent a power of 
 attorney, authorising him to transfer the annuity to the 
 lady, which he did not do till after the settlor's death. It 
 was nevertheless held, that the settlor had considered him- 
 self a mere trustee for the lady, and had never intended the 
 annuity for himself, but for her, and that therefore the trust 
 was good. 
 
 (/) Gee V. Liddell, 35 Beav. 621 ; and see also New, etc. 'Trustee v. 
 Bunting, [1897] 2 Q. B. 19. 
 
 {(j) IViorpev. Oiven,51iea,v.224: ; a,ndseea.\soArmstro7igv. Timperon, 
 W. N. (1871), p. 4. 
 
 (/i) 18 Ves. 140 (otherwise Ex parte Pye) ; and see also Re Bella-sis, 
 12 Eq. 218.
 
 36 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 8. 
 
 Imperfect 
 gift not 
 construed as 
 declaration 
 of tnist. 
 
 10. On the other hand, although some judges have heU 
 that an instrument executed as a present assignment (but 
 in reality not operative as such) is equivalent to a declara- 
 tion of trust (i), the balance of authority is unmistakeably 
 the other wa}-, on the ground that an intention to create a 
 trust is essential to the creation of one, and that when 
 a man purports to make a gift or an assignment, he cannot 
 reasonably be supposed to have intended to declare himself 
 a trustee — a character which assumes that he retains the- 
 property. Thus in Antrobzis v. Smith (k), the alleged 
 settlor made the following endorsement 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. Naviga- 
 tion." The share was not handed over to the daughter, 
 and the endorsement did not operate as a valid assignment 
 of the share ; but it was attempted to enforce the assign- 
 ment by contending that the endorsement operated as a 
 valid declaration of trust. The court, however, rejected 
 this view, the Master of the Eolls saying : " Mr. Crawfurd 
 (the alleged settlor) was not in form declared a trustee, nor 
 was that mode of doing what he proposed in his contem- 
 plation. . . . 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." 
 
 11. 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 
 
 (/) In Richardson v. Richardson, 3 Eq. 686, Vice-Chancellor Wood 
 (afterwards Lord Hathkklky), and in Morr/au v. Malltwu, 10 Eq. 475, 
 Lord RoMiLi.Y, and in Baddcrhij v. Badderlty, 9 Cli. D. 113, Vice- 
 Cliancellor Malins. This view has lieen expressly dissented from 
 liy Vice-Chancellor Bacon in Warrinrr v. Ro(J()-k, 16 Eq. 340, and b}^ 
 Sir Okorck Jksskl, M.R., in Richardx v. Dc/bridijc, l!S Eq. 11, and 
 l)y Vice-Cliancellor Hai.I. in Breton v. Woollren, 17 Cli. I). 416. The 
 decision also seems to be inconsistent with Lord Craxwokth's judgment 
 in .lonot V. Locke, 1 Ch. App. 25, and with Hearth y v. Nicholson, 
 lit E(j. 233, and Re Shield, /'elhi/hridfje v. Burrow, 53 L. T. 5, and it is 
 .•<iil)mitted that, botli on |)rinci])le and autliority, the law as laid down 
 l>v tin- Master of tin- llolls in Jiichnrds v. JJilhri'li/e, is accurate. 
 
 ' {k) 12 Ves. 35). Sliares or stocks nnist be transferred according to 
 tlie company's reguhitions {Sociile (li'nerale v. Wnlbr, 1 1 App. Cas. 20 ; 
 Hiiolx V. W'i/liainson, 3S Cli. D. 485 ; Mutual Provident Society v. 
 Mncnilliin, 14 .\\^Y. Cas. 5!)6).
 
 HOW FAR VALUABLE CONSIDERATION NECESSARY. 87 
 
 back from Birmingham, and have not brought baby any- Art. 8 
 thing"; 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 £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. He had previously 
 told his solicitor that he intended adding £100 to the 
 cheque, and investing it for the infant's benefit. A few days 
 after the above took place, he suddenly died, leaving the 
 child peimiless. 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 [I). 
 
 12. So in Milroy v. Lord (m), Lord Justice Turner 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, \vas 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 be 
 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 
 
 {I) Jones V. Locke, 1 Ch. App. 25 ; and see also Pethyhridge v. 
 Burrows, 53 L. T. 5, and Marhr v. Tommas, 17 Eq. 8 (which seem to 
 be inconsistent with Rt King, Sewell v. King, 14 Ch. D. 177, the 
 authoiity of which is respectfully questioned), and Vincent v. Vincent, 
 35 W. R. 7, and lie Smith, Champ v. MarshaUsay, 64 L. T. 13 ; 
 and see, as to impei'fect gifts at common law, Irons v. SmaUpiece, 
 2B. k Aid. 551 ; and Cochrane v. Moore, 25 Q. B. D. 57. 
 
 (;«) 4 De G. F. & J. 2154.
 
 38 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 8. (as I understand the law of this court) be resorted to, for- 
 there is no equity in this court to perfect an imperfect gift." 
 
 13. It was at one time thought that there was an excep- 
 tion (or a seeming exception) to this principle in the case of 
 husband and wife. In Grant v. Grant {n), the Master 
 of the Eolls said : "I apprehend the fact of the transaction 
 taking place between husband and wife, instead of between 
 strangers, makes no difference further than this, that in the 
 case of a gift of chattels from one stranger to another, there 
 must be a delivery of the chattels in order to make the gift 
 complete, whereas in the case of husband and wife there 
 cannot be a delivery, because, assuming they are given to 
 the wife, they still remain in the legal custody of the 
 husband." However, the more recent decision of the late 
 Vice-Chancellor Hall, contra, in Breton v. Woollven (o), 
 has thrown considerable doubt on the soundness of that 
 dictnvi, and upon the subsequent cases of Badderley v. 
 Badderlcy {p) and Fox v. Haickes (q). The point is now of 
 no importance as, by the Married Women's Property Act, 
 1882 (45 & 46 Vict. c. 75), gifts made by a husband to a wife 
 are as valid as gifts made by one stranger to another. 
 
 Executoiy 
 trusts Ijascd 
 on value not 
 enforcealik- 
 by persfins 
 not privy to 
 consideia- 
 tion. 
 
 Illusteations of Paragraphs (3), (4) and (5). 
 
 1. A covenant to settle future acquired property contained 
 in a marriage settlement {i.e., a settlement based on the 
 valuable consideration of marriage), although, of course, 
 enforceable by any person who is privy to the consideration 
 {e.g., the husband, wife, children, or trustees), cannot be 
 enforced by parties who are not so privy, e.g., by the 
 wife's next of kin taking in default of issue (>•). 
 
 2. Another excellent example of the rule that a contract 
 to create a trust, even where founded on valuable considera- 
 tion, cannot be enforced by a volunteer, is afforded by the 
 case of Colycar v. Lady Mulgrave (.s). There, a father, who 
 
 (vi) 34 Beav. G'i.'i ; followed by Malins, V.-C, in Badderley v. 
 lid/lderlfy, 9 Ch. I). 113, and by liACON, V.-C, in Fox v. Hawke», 
 13 Cli. 1). H22. 
 
 (o) 17 Ch. 1). 416. (i>) Snjim. (q) Siijn-a. 
 
 {r) ClreiM v. Pati.r«ov, 32 Ch. 1). 76; lie Amtin, Morgan v. Chctwyndr 
 31 ih. r)9(i. 
 
 {h) '2 Kuc. 81.
 
 HOW FAR VALUABLE CONSIDERATION NECESSARY. 39 
 
 had four natural daughters and a legitimate son, entered Art. 8. 
 into an agreement with the son, whereby the father cove- 
 nanted 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 father his sole legatee and 
 executor. It was held, that the daughters could not force 
 the father to perform the covenant to settle £20,000 
 upon them, as, although the son gave value for the 
 father's covenant, the daughters were not privy to that 
 consideration. 
 
 3. The above case must, however, be carefully distin- 
 guished from cases where the volunteer is not seeking to 
 enforce the covenant against the covenantor, but to enforce 
 the trust in his favour against the trustees, where the 
 covenantor has performed the covenant. Such cases were 
 elaborately discussed in Be Flavell, Murray v. Flavell (t), 
 where it was held that a provision in a partnership deed 
 that a certain annuity should be paid by the surviving 
 partner to the widow of the deceased, was a valid trust ; 
 and that as the widow was able as personal representative 
 of the deceased to enforce the covenant against the partner, 
 she was entitled when she received the annuity from him to 
 keep it for herself as beneficiary under the trust. She had 
 not in fact to seek the assistance of a court of equity against 
 the settlor or his representatives. 
 
 Art. 9. — What Property is capable of being made 
 the Subject of a Trust. 
 
 All property, real or personal, legal or equitable, 
 at home or abroad, and whether in possession or 
 action, remainder, reversion, or expectancy, may 
 be made the subject of a trust, unless — 
 
 (t) 25 Ch. D. 89 ; and see also Re Darie.s, Davies v. Davies, [1892] 
 3 Ch. 63 ; Wilson v. Bury, 5 Q. B. D. 518 ; and Ashhy v. Costin, 
 21 ih. 401.
 
 40 
 
 DECLAEED OR EXPRESS TRUSTS. 
 
 Art. 9. 
 
 (1) the policy of the law or any statutory 
 
 enactment prohibits the settlor from 
 parting with the beneficial interest in 
 it ; or, 
 
 (2) being real estate, the tenure under which 
 
 it is holden is inconsistent with the 
 trust sought to be created (n). 
 
 Equitable 
 interests. 
 
 Choses in 
 action. 
 
 Illustrations of Paragraph (1). 
 
 1. A person, holding an agreement for a lease, assigned 
 all his interest under it to trustees upon certain trusts. 
 Here, 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 (x). 
 
 2. A. owes £1,000 to B. B. assigns this debt to trustees 
 upon certain trusts. This transaction is perfectly good (y). 
 
 Reversionary 3. A. settled upon his wife and children certain real 
 niterests. estate to which, under the will of his uncle, he was entitled 
 in reversion. Held good (a). 
 
 {u) See Neltion v. Bridport, 8 Beav. 574 ; and Allen v. Bewsey, 
 7 Ch. D. 453. 
 
 (x) Gilbert v. Overton, 2 H. & M. 110 ; and see also Knight v. Boivyer, 
 23 Beav. 635. 
 
 (y) 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 Cork), that it "would be the occasion of multiplying of con- 
 tentions and suits, of great oppression of the people, and the subversion 
 of the due andecfual execution of justice " (10 Co. 48). But even at law 
 negotiable instruments (as debentures, bills of exchange, and promissory 
 notes made negotiable) were exceptions to the rule ; and so were all 
 contracts whore a novation took place, that is to say, where both 
 j)arties to the original contract assented to the transfer of the interest 
 of one of them (JJiiroii v. J/ii.sliaiid,4 B. & Ad. (ill). Kipiily, however, 
 almost alwajs, from its earliest ilays, disregarded tlie legal doctrine, 
 and freely enforced contracts for the sale of choses in action ; and now, 
 l>y 8 & 9 Vict. <;. 106, s. 6, contingent and future interests and 
 possibilities, coupled iirdh an intereKl in real estate, may be granted or 
 assigned at law. But not so possibilities in personal estate, as to 
 wliich, see Joseph v. Iji/oiis, 15 Q. B. I). 280 ; and Cotlyer v. Isaacs, 
 v.) Ch. 1). 342. By 30 &"31 Vict. c. 144, policies of life assurance may 
 lie legally assigned, and l)y 31 & 32 Vict. c. 86, a similar relaxation of 
 tlie law was introduced in fa\()iir of marini; ])oli(ics ; and finally, by 
 H. 6 of tlie .Judicature Act, 1873, (lcl)ts and otlicr icgai clioses in action 
 may Ix; assigned at law, where tlie assiginiient is absolute and not by 
 way of (•barge only. 
 
 (d) Sh'f/lo V. Adiims, 4 (iill'. ■1!)2.
 
 WHAT PROPERTY THE SUBJECT OF A TRUST. 41 
 
 4. In Wcthcred Y . Wcthered (h) an agreement was entered Art. 9. 
 into between two sons, to divide equally whatever property 
 
 they might receive from their father in his lifetime, or Expectancies, 
 become entitled to under his will, or by descent, or other- 
 wise. It was held that this agreement was binding, although 
 made in respect of a mere possibility, and Vice-Chancellor 
 Shad WELL said : " It is clear that if the testator meant 
 that his devisee, should have the personal enjoyment of his 
 bounty, he might so devise as to stint the enjoyment of the 
 devisee, and restrain him from alienating the subject of 
 the gift ; but that if the testator did not so devise, it must 
 be intended that he meant that his devisee should not be so 
 stinted, but should have the full enjoyment of the property, 
 and that it should be liable to all his antecedent debts, and 
 all his antecedent contracts ; and therefore, that where 
 there was a general devise, the property was liable to be 
 encumbered in any toay that the devisee might think proper 
 either before or after he took it " (c). As to the effect of the 
 settlor's bankruptcy before the expectancy vests, however, 
 see Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 47 (2), and 
 ■Colly er v. Isaacs (c). and s. 16, infra. 
 
 5. Salaries or pensions given for enabling persons to Property 
 perform duties connected with the public service, or to inalienable 
 
 r)V I'Gcison oi 
 
 enable them to be in a fit state of preparation to perform public policj'. 
 
 those duties, are inalienable. In Grenfell v. Dean and 
 
 Canons of Windsor {d), the Master of the EoUs explained 
 
 the true reasons for this doctrine. In that case, a canon 
 
 of Windsor had assigned the canonry 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 
 
 a,nd attendance in the chapel for twenty-one days a-year. 
 
 In giving judgment for the plaintiff and upholding the 
 
 assignment, his lordship said: "If he (the canon) had 
 
 made out that the duty to be performed by him was a 
 
 (6) 2 Sim. 183. 
 
 (c) See also BecUey v. Newland, 2 P. W. 182 ; Harwood v. Tooke, 
 -2 Sim. 192 ; Higqin^ v. Hill, 56 L. T. 426 ; CoUyer v. Imaoi, 19 Ch. D. 
 342 ; Re Clarke, 'Coomhe v. Garter, 36 Ch. D. 348 ; Tailhy v. Official 
 Receiver, 13 App. Cas. 523 ; Morgan v. Hardy, ib. 354 ; and Thomas v. 
 Kelly, ib. 506. 
 
 (d) 2 Beav. 554.
 
 42 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 9. 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 case& 
 in which public duties are concerned in which it may be 
 against public policy that the income arising from the per- 
 formance 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 payments which 
 are made to officers from time to time are the means by 
 which they- — being liable to be called into public service — 
 are enabled to keep themselves in a state of preparation for 
 performing their duties." 
 
 So, in Davis v. Duke of Marlborough (e), the Lord 
 Chancellor 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 emolu- 
 ments of ecclesiastical livings were expressly made in- 
 alienable by 13 Eliz. c. 20, and 57 Geo. 3, c. 99. 
 
 Property 6. Some classes of property are expressly made inalienable 
 
 r^iutute '-*y s^'^*^^^^. Thus, in Davis v. Duke of Marlborough (e), 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 kept in mind that it was for a 
 memento and a perpetual memorial of national gratitude 
 for public services," it was inalienable. Pay, pensions, 
 relief, or allowance payable to any officer of his Majesty's 
 forces, or to his widow, or to any person on the com- 
 passionate list, are also made unassignable by statute (/). 
 So also is the pay of seamen in the navy {g), and half-pay 
 in the marine forces (h) ; but it would seem that the right 
 to pay actually due at the date of the assignment is assign- 
 
 (r) I Sw. 74. 
 
 (/) 47 <!oo. 3, scBS. 2, c. 25, .ss. 1—14. 
 
 (7) 1 (;«■<). 2, c. 14, H. 7. 
 
 (/,) 1 1 (Jco. 4 & 1 Will. 4, 0. ;^0, H. 47.
 
 "WHAT PROPERTY THE SUBJECT OF A TRUST. 43- 
 
 able (i). Salaries or pensions, not given in respect of public Art. 9 
 services, are freely assignable (k). 
 
 Illustkations of Paragraph (2). 
 
 1. Where, with respect to copyhold lands, there is no Trust incon- 
 custom to create an estate tail in the manor of which they distent with 
 are holden, 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 (/). 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 (;«) . 
 
 2. The same principle holds in the case of lands situated Trusts of 
 abroad, even if such lands are capable of being settled by °^^^S^ 
 way of special trust at all, a point which is not free from 
 
 doubt (n) . 
 
 Art. 10. — The Legality of the Expressed Object 
 of tlie Trust. 
 
 (1) A trust created for an illegal purpose is 
 void (o) ; but it will not vitiate other trusts or 
 provisions in the settlement unconnected with 
 such illegal purpose {p) ; 
 
 (i) 11 Geo. 4 & 1 Will. 4, c. 20, s. 54. 
 
 (k) Feistel v. St. John's College, 10 Beav. 491 ; and for other cases 
 bearing on assignments of salaries and pensions, see Stone v. Lidderdale, 
 2 Anst. 533 ; Arbuthnot v. Norton, 5 Moo. P. C. C. 219 ; Carew v. 
 Cooper, 10 Jur. (n.s.) 429 ; Alexander v. Duke of Wellington, 2 Russ. & 
 M. 35. 
 
 (I) Allen V. Bewsey, 7 Ch. D., at p. 466. 
 
 (m) Ibid. 
 
 {n) Glover v. Strothoff, 2 B. C. C. 33 ; Nelson v. Bridporf, 8 Beav. 570 ; 
 Martin v. Martin, 2 Ry. & M. 567. 
 
 (o) Lew. 74; Att.-Gen. v. »S'a?;cZs, Hard. 494 ; Pawlettx. Att.-Gen., ib., 
 469 ; Burgess v. Wheate, 1 Ed. 595 : Duke of Norfolk's Case, 3 Ch. Cas. 
 35. 
 
 (p) H. V. IT. , 3 Kay & J. 382 ; Cartwright v. Cartivright, 3 D. M. & 
 G. 982 ; Merryweather v. Jones, 4 Gilf. 509 ; Cocksedge v. Cocksedge, 
 14 Sim. 244. The reader must not, however, assume from this, that
 
 44 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 10. (2) The following illegal trusts are those which 
 most usually occur in practice — 
 
 (a) trusts for unreasonable accumulation (q), 
 
 or the tying up of property for an un- 
 reasonable period ; 
 
 (b) trusts providing for the continued enjoy- 
 
 ment of the trust property by a bene- 
 ficiary in derogation of the rights of 
 creditors (r) ; 
 
 (c) trusts restricting that power of alienation 
 
 which the law has annexed to the owner- 
 ship of property (s) ; 
 
 (d) trusts promoting or encouraging im- 
 
 morality (t), fraud or dishonesty ; 
 
 (e) trusts tending to the general restraint 
 
 of marriage (u) (unless of a second 
 marriage) (x) ; 
 
 Illustrations op Paragraph (2) (a). 
 
 Perpetuities. 1. It is against ■ public policy that property should be 
 settled 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 
 
 where a trust is voifl under the rule against perpetuities, subsequent 
 remainders are valid, and are merely accelerated. All remainders after 
 a remote ^ift are void, althougli gifts alternative to one void for remote- 
 ness may he good, as to wliich, see Evern v. Challis, 7 H. L. Cas. 531 ; 
 n'atson\: Youii<i, 28 Ch. 1). 436 ; Re Harny, Feelv. Savory, 39 Ch. D. 
 289 ; and Ih Beucc, Smith v. Iknce, [1891] 3 Ch. 242. 
 
 (q) C'adell v. Palmer, Tud. L. C. Conv. 578; Griffith v. Vere, ib., 
 618. 
 
 (r) Graves v. Dolphin, 1 Sim. 66 ; Snowdon v. Dale."!, 6 Sim. 524 ; 
 Brandon v. liohin.'ion, 18 Ves. 429. 
 
 (s) Ffoi/>r v. lianbx, 8 Va\. 115 ; Syhx v. Sykes, 13 Eq. 56. 
 
 (0 Hludir,}! v. Kdiravds, Cio. VAv/.. 509. 
 
 (//) See jxr Wilmot, L.C.J. , in Loiv v. Peers, Wil. Op. & Jud. 375 ; 
 Morhy v. lieynoldmn, 2 Hare, 570 ; Lloxjd v. Lloyd, 2 Sim. (N.s.) 255 ; 
 Story" 2S3. 
 
 (x) Marjile.H v. Bainhridtjr, 1 Madd. 590 ; Lloyd, v. Lloyd, supra ; 
 Craven v. Brady, 4 ('li. Apy). 290 ; and as to second marriage of a man, 
 A/lnt v. Jarknon, 1 Cli. D. .•<9il.
 
 LEGALITY OF EXPRESSED OBJECT OF THE TRUST. 45- 
 
 the rule against perpetuities. That rule is, that every Art. 10. 
 future limitation, whether by way of executory devise, 
 or trust of real or personal property, the vesting of 
 which absolutely as to personalty, or in fee or tail as 
 to realty, is postponed beyond lives in being and twenty- 
 one years afterwards (with a further period for gestation 
 where it exists), is void (?/). This rule does not, however, 
 apply to interests following estates tail, as they can be 
 barred (z) ; nor to charitable bequests (a) ; nor to parlia- 
 mentary grants for distinguished services ; nor to trusts for 
 the accumulation of income for payment of the settlor's 
 debts {b). It is impossible within the scope of this work to 
 go into the numerous questions which arise under this rule, 
 for the elucidation of which the reader is referred to Mr. 
 Lewis's learned Treatise on Perpetuities. All that need he 
 said here is, that in considering whether limitations or 
 trusts offend against the rule (or are in legal language " too 
 remote "), j^ossible events are to be considered. If the trust 
 7nay in any event be too remote, it will be void, notwith- 
 standing 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 predicted that it imist necessarily 
 vest within the prescribed period (c). It may also be 
 mentioned, that if the vice of remoteness affect an unascer- 
 tained number of members of a class, it affects the class as 
 a whole. Thus, where a trust is for A. for life, and after 
 her death for her children who may attain twenty-one, and 
 the issue ^jer stirpes of such of them as shall die under age, 
 which issue shall attain ttoenty-one, the whole of the limita- 
 tions after the life estate of A. are void. For although the 
 children must attain twenty-one wdthin the prescribed 
 
 (y) Cadell v. Palmer, Tud. L. C. Conv. 578 ; London and SontJi 
 Western Rail. Co. v. Gomvi, 20 Ch. D. 562. But a trust to apply the. 
 income for a period, which may or may not exceed the limit allowed 
 by the rule, is good, although the ultimate gift of the corpus may be 
 bad. Ree Ee Wise, Jackson v. Parrott, [1896] 1 Ch. 281. 
 (z) Heasman v. Pearce, 7 Ch. App. 275. 
 
 (a) Chrisfs Hospital v. Grainger, 1 M. & G. 460. 
 
 (b) Lord Southampton v. LojtI Hertford, 2 V. & B. 54, 65 ; Bateman 
 V. Hotrhkin, 10 Beav. 426. 
 
 (c) DniKfannon v. Smith, 12 CI. & F. 546 ; Smith v. Smith, 5 Ch. App. 
 ;M2 ; Ee Handcock, 13 L. K. Ir. 34.
 
 46 DECLAEED OR EXPRESS TRUSTS. 
 
 Art. 10. 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 (cZ). Where there is a valid trust, with a 
 gift over in certain contingencies, which is void for remote- 
 ness, the valid trust remains unaffected (e). All remainders 
 after a gift void for remoteness are themselves void (/). 
 
 The Thellus- 2. At common law, the power of tying up money so as to 
 son Act. accumulate at compound interest, was co-extensive with 
 
 the period for which property might be tied up under the 
 rule against perpetuities; viz., during any number of lives 
 in being, and twenty-one years afterwards. The late Mr. 
 Thellusson having, by his will, directed his personalty to be 
 invested in land, and the rents of the land so bought and of 
 his other real estate to be accumulated during the lives of 
 all his descendants living at his death (g), the attention 
 of Parliament was called to the unreasonable nature of such 
 a power. Accordingly, by the statute 39 & 40 Geo. 3, c. 98 
 (commonly known as the Thellusson Act), the period 
 allowed by 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 any grantor, settlor, devisor, or testator ; or during 
 the minorities of any persons who shall be living, or en 
 ventre 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 accumula- 
 tion, would for the time being, if of full age, be entitled to 
 the income directed to be accumulated. The statute, how- 
 ever, does not extend to any provision for payment of debts, 
 or for raising portions for the children of the settlor, grantor, 
 or devisor, or of any person taking any interest under the 
 
 (d) Pearks v. Moseley, 5 App. Cas. 714. 
 
 (e) Ooodicr v. Johnson, 18 Cli. D. 441. For other recent examples of 
 tlie (jvicstion, wlietlier or not a trust is void for remoteness, tiie reader 
 is referred to J{c Btvan, 34 Ch. D. 716, and lie Coppurd, 35 Ch. D. 
 350. 
 
 (/) Cambridge v. Rouse, 8 Ves. 24, and see Watson v. Youmj, 28 Ch. D. 
 43(i, anil lie Frost, Frost v. Frost, 43 Cli. 1). 246. But wliere Micro are 
 two alternative contingent gifts, one too remote and the otlior not, if 
 tiie latter contingency h<i|)i)ens tln^ gift will be good (Frtrs v. Cha/lis, 
 7 If. li. (--'as. 531). But sc(5 iioti^ (/>), ]>. 43, supra. 
 
 (<j) Thcllunson y. Wou<IJ'urd, 11 V'cs. 112.
 
 LEGALITY OF EXPRESSED OBJECT OF THE TRUST. 47 
 
 instrument directing such accumulations; nor to any direction Art. 10. 
 as to the produce of timber upon any lands ; nor to a trust 
 or direction for keeping property in repair (/i). 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 statute would be wholly void ; but 
 this is not so. The statute is merely j^rohibitory of accumu- 
 lations 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 j;ro tanto (i). If, however, the trust is to accumulate 
 beyond the common laio i^criod, it is altogether void {k). 
 
 3. In 1892 the period allowed by the Thellusson Act was Acuumula- 
 further restricted where the accumulation is to be made purpose^ of ^" 
 either wholly or partially for the purchase of land only, to purchasing 
 the minority or respective minorities of any person or persons 
 who, under the instrument directing the accumulations, 
 " would for the time being (if of full age) be entitled to 
 receive the rents, issues, profits, or income so directed to be 
 accumulated " {l). The wording of the Act is not free from 
 criticism, for if it be construed literally it could never be 
 effectual, inasmuch as under the instrument directing an 
 accumulation beyond minority, there would be no person 
 entitled, if of full age, to the rents, issues, profits, or income. 
 It is apprehended, however, that just as " testamentary 
 grammar " is looked upon with indulgence, the same lenient 
 treatment must be accorded to this and other eccentricities 
 of parliamentary drafting, and that the true meaning is 
 suJSiciently obvious. It is also apprehended that on the 
 analogy of the Thellusson Act, an instrument contravening 
 the new statute would only be void as to the excess, and 
 not void altogether. 
 
 [h) Vine v. Raleigh, [1891] 2 Ch. 13 ; Re Mason, Mason v. Mason, 
 [1891] 3 Ch. 467. 
 
 {«) See Griffiths v. Fere, Tud. L. C. Conv. 497, and cases there noted. 
 
 (k) Tud. L. C. Conv. 618, notes on Griffiths v. Vere, citing Bourjhton. 
 V. James, 1 Coll. 26, and other cases. 
 
 (I) 55 & 56 Vict. 0. 58.
 
 48 DECLAEED OR EXPRESS TRUSTS. 
 
 Art. 10. 
 Illusteatioxs of Paeagkaph (2) (b). 
 
 .Settlements ^ ^ trust, with a proviso that the interest of the cestui 
 
 against policy , i , i t i i . i i • p t 
 
 of bankruptcy Q'"^ trust shall not be liable to the claims oi creditors, is 
 
 !»■«■- void so far as the pro'S'iso is concerned ; and if it can be 
 
 ascertained that the cestui que trust was intended to 
 take a vested interest, the mode in which, or the time when, 
 he was to reap the benefit, is immaterial, and the entire 
 interest may either be disposed of by the act of the cestui 
 que trust, or may enure for the benefit of his creditor& 
 under the operation of the bankruptcy law [m). The 
 question generally depends upon whether, on the decease 
 of the cestui que trust, his executors would have a right to 
 call upon the trustees retrospectively to account for the 
 arrears {n). Of course, however, a trust to A. ^mt^l he 
 becomes bankrupt, or alienates the property, and then over to 
 B. is good (o), and may even take effect in respect of aliena- 
 tions preceding the first instrument (j)) ', but a man cannot 
 make a settlement upon himself until bankruptcy, and then 
 over (q), not even by an ante-nuptial marriage settlement 
 (where it might fairly be urged to be part of the wife's terms- 
 of the marriage bargain) ; for the express object of such a 
 trust is to cheat his creditors, which is, of course, an 
 illegal pm-pose, and therefore void (r). 
 
 Illustration of Paragraph (2) (c). 
 
 Restraint on 1. Trusts framed with the object of preventing the 
 
 alienation. barring of entails or imposing restrictions on alienation of 
 
 property which is once given absolutely, are contrary to the 
 
 (m) Lew. 87. For example, see Younghushand v. Githorne, 1 Coll. 
 400; Greeny. Spicer, 1 R. & M. 395; Grave-i v. Dolphin, 1 iSim. 6(3; 
 Piercy v. Bohertn, 1 .Vl. & K. 4 ; Snon-don v. DaJe-s, 6 Sim. 524. 
 
 (n) See />'e Sauvdersoirs 7'n(.«/.s-, 8 Kay <fe J. 497. 
 
 (o) See ni/l.-<on v. Cro/ls, 15 E(i. 314 {lie Aliryn'.i Trusts, 16 Eq. 585, 
 and cases therein cited. 
 
 ip) MVv V. H'///,V»w(x. [1898] 1 Ch. 488. 
 
 (7) Kiii'iht V. lironii, ~ Jur. (N.s. ) 894 ; Brooker v. Pearson, 37 Beav. 
 181 ; /{( J'larsov, 3 Ch. I). 807. 
 
 (r) J/i'jifhihoflom v. J/o/mc, 19 Ves. 88 ; Ex parte Hodgson, ih., 208 ; 
 Ke Pearsf/n, 3 Ch. 1). 8<l7 ; l)ut consider lie Detmold, Detmold v. 
 JJttmold, 40 Ch. D. 585.
 
 LEGALITY OF EXPRESSED OBJECT OF THE TRUST. '49 
 
 policy of the law, and are therefore void (s) ; with the single Art. 10 
 exception that trusts limiting the power of married women 
 to alienate their separate property diiring coverture are 
 regarded as valid. 
 
 Illusteations op Pabagbaph (2) (d). 
 1. Where a man, hydeed, creates a trust in favour of future Trusts for 
 illegitimate children (putting aside the objection as to want iijg"[tjiijate 
 of certainty in the cestuis que trusts), the trust will be void, children, 
 as being contrary to public policy, and conducive to im- 
 morality (t). Similarly, a trust by will in favour of the future 
 illegitimate children of another, would clearly be a direct 
 encouragement to such other to continue his illicit intercourse 
 after the testator's death, and would therefore be void (li). 
 
 The same objection does not, however, apply to the case 
 of a testator creating a trust by will in favour of his otvn 
 future bastards. Thus, in Occleston v. Fullalove (x), a 
 testator by his will gave a share of the proceeds of his 
 residuary estate to his reputed children, Catherine and 
 Edith, " and all other children which I may have, or be 
 reputed to have, by the said M. L., now born, or hereafter 
 to be born." This gift in favour of future-born children 
 was held valid; Lord Justice Mellish saying: "In the 
 present case, the will being the will of the putative father 
 himself, it is impossible that it can encourage an immoral 
 intercourse after his death. If the bequest is to be held to 
 be contrary to public policy, it must be because it tended to 
 promote an immoral intercourse in his lifetime. There was 
 no evidence that M. L. knew that the will was made ; and if 
 she did know it, she must also have known that it could be 
 revoked at any moment." 
 
 (s) Floytr v. Bankes, 8 Eq. 115 ; Sykes v. Sykes, 13 Eq. 56 ; and as to 
 alienation, Sjioicdon v. Dales, 6 Sim. 524 ; Green v. Spicer, 1 B. & M. 
 395 ; Graves v. Dolphin, 1 Sim. 66 ; Brandon v. Robinson, 18 Ves. 
 429 ; Ware v. Cann, 10 B. & C. 4.33 ; Hood v. Oglander, 34 Beav. 513 ; 
 Be Dugdale, Dugdale v. Dugdale, 38 Ch. D. 176. 
 
 {i) Bladicell v. Edwards, Cro. Eliz. 509 ; Moo. 430 ; and see per 
 Mellish, L.J., in Occleston v. Fullalove, 9 Ch. App. 147 ; and Thomp- 
 son V. Thomas, 27 L. R. Ir. 457. 
 
 (u) Metham v. Duke of Devon, 1 P. W. 529 ; Dorin v. Dorin, L. R. 
 7 H. L. 568 ; Be Byles, 1 Ch. D. 282. 
 
 (x) 9 Ch. App. 147 ; and see also Be Goodivin, 17 Eq. 345.
 
 50 
 
 DECLAEED OR EXPRESS TRUSTS. 
 
 Art. 10. 
 
 Separation 
 deeds. 
 
 2. A trust to take effect upon the future separation of a- 
 husband and wife is void, as being contrary to public 
 morals (y) ; but a trust in reference to an immediate separa- 
 tion, already agreed upon, is good and enforceable {z). If, 
 however, the separation does not in fact take place, the 
 trust becomes wholly void {a). The reason of this is at 
 once obvious, when we consider that a provision for husband 
 or wife, to take effect upon a future separation, is a direct 
 encouragement to misconduct which may result in a separa- 
 tion ; whereas, when a separation is actually agreed on — 
 when both parties have decided that they will no longer 
 remain together — there can be no encouragement to marital 
 misconduct in agreeing to the distribution of their income in 
 a particular manner and for their mutual benefit and 
 advantage. 
 
 Trusts ill 
 restraint of 
 marriat'e. 
 
 Illusteations of Paragraph (2) (e). 
 
 1. "Where property is settled in trust for a woman /or life- 
 with an executory gift over if she marry a man with an 
 income of less than £500 a year [h), or if she marry any 
 person of a particular trade (c), the gift over is bad, as its 
 object, as gathered from its probable result [d), is to restrain 
 marriage altogether. If, however, the trust over is to take- 
 effect only upon the first beneficiary marrying a particular 
 person, it would be good, as it would not be in general 
 restraint of marriage (e). 
 
 2. Moreover, the rule does not apply to second marriages. 
 Thus where C/) a person, by her will, gave her residuary 
 estate to trustees, upon trust to pay the income to her 
 
 (y) WcM)n<Mth \. Wcuhiimfh, I Dow. (x.s. )519; Proctor x. Rohinsoiir 
 3.1 Beav., and on Appeal, 15 W. U. 188 ; and see also Trafford v. 
 M'lrlioiiorhic, 89 Ch. I). IIG, wheie a testator gave an annuity to A. so 
 long as sIk! niigiit reside a])art from hci- luisliand. 
 
 f~) n';/.sou V. M7/.S0M, 1 ]i. L. Cas. .las ; -) H. L. Cas. 40 ; Vamittarf 
 V. Va)l■•^i/larf,2^). & .T. 24i) ; .lodrdl x. Jodrtll, 9 Beav. 45; and see 
 Jodrell V. JodrdI, 14 Beav. .S97. 
 
 (a) liindhy v. Mvllonn/, 7 Eq. .S43. 
 
 (h) Sin. R.' k v. I'r.i|>. SO ; Stoi^, 280—283. 
 
 [r) I hid. 
 
 id) Sin. \i. Ik. I'. l'ro|). S(l ; and Story, 274—283 ; IJoyd v. L/oyd^ 
 2 Sim. (s.s.) 2.15. 
 
 {'-.) Sin. R. tt I'. l'ro|.. SI 1(17. 
 
 (/) Ad'n V. ./arkxoii, 1 ( 'li. I). 3!»0.
 
 LEGALITY OF EXPRESSED OBJECT OF THE TRUST. 51 
 
 nephew and his wife (the testatrix's niece) for their joint Art. 10. 
 hves and the life of the survivor, with a gift over (in the 
 event of the nephew surviving and viarrying again) in 
 trust for other persons, it was held that the gift over 
 was good. Mellish, L.J., in delivering his judgment 
 after stating the general rule, said: "We are to consider 
 how does that rule apply to second marriages? It has 
 never been decided that it applies to second marriages. 
 . . . It appears to me very obvious that, if it is regarded 
 as a matter of policy, there may be very essential distinc- 
 tions between a first and a second marriage. At any rate 
 there is this, that in the case of a second marriage, whether 
 of a man or a woman, the person who makes the gift may 
 have been influenced by his friendship towards the wife in 
 the one case, and towards the husband in the other case. 
 That is to say, regarding the case of some member of the 
 husband's family, he may make a gift to the husband for 
 life, and then make a gift to the wife because she is the wife 
 of that particular husband, and because he thinks it is 
 more for the benefit of the children that the wife should 
 have the money while the children are young, rather than 
 that the children should have it." 
 
 3. But although conditional or executory gifts over 
 divesting an estate on marriage are void if the probable effect 
 would be to discourage marriage altogether, yet by a curious 
 hair-splitting, it seems to be well established that a trust in 
 favour of a person imtil marriage and then over is perfectly 
 good. As was said by Wigram, V.-C, in Morley v. Bey- 
 noldson (g) : " Until I heard the argument of this case, I 
 had certainly understood, that without doubt, where pro- 
 perty was limited to a person until she married, and when 
 she married then over, the limitation was good. It is 
 difficult to understand how this could be otherwise, for in 
 such a case there is nothing to give an interest beyond 
 marriage. If you suppose the case of a gift of a certain 
 interest, and that interest sought to be abridged by a con- 
 dition, you may strike out the condition and leave the 
 original gift in operation ; but if the gift is 2mtil marriage, 
 
 (.7) 2 Hare, .579. 
 E 2
 
 52 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 10. there is nothing to carry the gift beyond the marriage. 
 ... I am satisfied from an examination of the autho- 
 rities that a gift tintil marriage, and when the party marries 
 then over, is a vahd hmitation." "Whether this somewhat 
 refined distinction between executory gifts over on marriage 
 and gifts until marriage would now be upheld if attacked 
 may perhaps be doubted from the language used by the 
 late Lord Justice James in Allen -v. JacTison (Ji) , where he 
 showed a tendency to construe gifts over, as being really 
 gifts until the prohibited event should happen. 
 
 Art. 11. — Necessity or otherwise of Writing 
 and Signature. 
 
 (1) An express trust of land, or an interest in 
 land, cannot be enforced unless it is either created 
 by will, or evidenced by some writing, signed by 
 the settlor, showing clearly w^hat the intended 
 trust is, or referring to some other document 
 which does so (i). Where the legal estate is 
 vested in a trustee for an absolute owner, the 
 latter is the proper party to declare the trust (h). 
 
 (2) An express trust of property other than 
 land (not intended to be testamentary) may be 
 made verbally (Z). 
 
 (3) An express trust of any kind of property, 
 if intended to be testamentary, must be created by 
 
 (h) 1 Ch. D., at p. 404 ; and see also the judgment of the late Lord 
 Justice KNKiHT Bhuck in Heath v. Lewis, 2 1). M. & G. 954. But 
 cf. /it /JiKjda/t, DiKjdale v. Dwjdale, 38 Ch. D. 176. 
 
 (i) .Slaliite of Frauds, 29 Car. 2, c. 3, .s. 7. " Land" includes copy- 
 hold.s ( Withers v. Withers, Anib. 152) and leaseliolds {Foster v. Hale, 
 :i Ves. 09(i). 
 
 (k) Kronheim v. Johmon, 7 Ch. D. 60 ; Tiemty v. Wood, 19 Beav. 
 .3.30; lindkin v. Dolman, 35 L. T. 791. 
 
 {/) AfrFiiddeu v. Jeukyns, 1 Ph. 157; Hawkiiisv. Gardiner, 2 Sm. & 
 (J. 451 ; /ienhoiv v. 7'owu.scnd, 1 M. & K. 506; Middkton v. Pollock, 
 2 Ch. D. 49 ; New, etc., Trmlee v. Himtiwj, [1897] 2 Q. B. 19.
 
 NECESSITY OF WRITING AND SIGNATURE. 53 
 
 a duly executed and attested will or codicil (m) ; Art. 11. 
 and in the absence of fraud, a person who appears 
 on the face of a will to be a beneficial devisee or 
 legatee, cannot be subsequently converted into a 
 trustee by a declaration of the testator not exe- 
 cuted as a will or codicil ; nor where property is 
 devised or bequeathed to a person as trustee can 
 the trust be declared by a subsequent instrument 
 other than a will or codicil (7^). But in that case 
 there is a resulting trust in favour of the testator's 
 heir or next of kin. 
 
 (4) The above rules do not apply where they 
 would operate to effectuate a fraud (0). 
 
 Illustrations of Parageaphs (1) and (2). 
 
 1. In Foster v. Hale (^j), a gentleman named Burden had What writing 
 a share in a colliery, and the suit was commenced for the '^ I'eqmred^ 
 purpose of fixing a trust upon his share for the benefit clear and un- 
 of his partners in a bank, in which he was concerned. 'Ambiguous. 
 The only written evidence of the alleged trust was contained 
 in letters signed by the defendant. In giving judgment, 
 Lord Alvanley said : "It was contended for the defen- 
 dants that there is great danger in taking a declaration of 
 trust arising from letters loosely speaking of trusts, which 
 might or might not be actually and definitely settled 
 between the parties with such expressions as ' our,' 'your,' 
 etc., intimating some intention of a trust ; that upon such 
 grounds the court may be called upon to execute a trust in 
 a manner very different from that intended, and that it is 
 
 (m) 1 Vict. c. 26, .s. 9, and Statute of Frauds, s. 5. 
 
 (n) Addlington v. Cann, 3 Atk. 141 ; Briggs v. Penny, 3 De G. & S. 
 547 ; jRe Boyes, Boyes v. Carritt, 26 Cli. D. 531 ; Habergham v. Vincent, 
 2 Ves. jun. 230. 
 
 (o) Per Lord Westbtiry, McGormick v. Grogan, 4 H. L. C. 82 ; 
 Strickland v. Aldridge, 9 Ves. 219 ; Haigh v. Kaye, 7 Ch. App. 469 ; 
 7?e Duke of Marlborough, Davis v. Whitehead, [1894] 2 Ch. 133 ; 
 Rochefoucauld v. Boiistead, [1897] 1 Ch. 196 ; Re Stead, Witham v. 
 Andrew, [1900] 1 Ch. 237. 
 
 {p) 3 Ves. 696.
 
 54 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 11. absolutely necessary that it should be clear from the 
 declaration what the trust is. That I certainly admit. The 
 question, therefore, is, whether sufficient appears to prove 
 that Burdon did admit and acknotvledge himself a trustee, 
 and whether the terms and conditions on tuhicli he was a 
 trustee sufficiently ajjj^ear (q). I do not admit that it is 
 absolutely necessary that he should liave been a trustee from 
 the first. It is not required by the statute that a trust should 
 be created, by a tvriting ... . b7it that it shall be mani- 
 fested and i)roved by writing ; plainly meaning that there 
 should be evidence in writing, proving that there was such 
 a trust." 
 
 Verbal trust 
 of stock. 
 
 Recjuest to 
 debtor lo 
 hold debt in 
 trxist. 
 
 Verbal testa- 
 
 imiitaiy 
 
 trust. 
 
 void. 
 
 2. In Kilpin v. Kilpin {r), a person transferred stock into 
 the name of an illegitimate daughter and her husband and 
 their two eldest children, and by parol declaration, con- 
 firmed by an unsigned entry in a memorandum book, 
 declared that such investments w' ere to be for the benefit of 
 all his daughter's children : — Held, a good declaration of 
 trust, as the stock was personal estate. 
 
 3. So in McFadden v. Jenkyns (s), a creditor desired his 
 debtor to hold the debt in trust for A. The debtor 
 acquiesced, and paid over part of the money to A. ; and it 
 was held that the creditor had made a valid declaration of 
 trust, and had constituted the debtor a trustee of the debt 
 for A. 
 
 Illustrations of Paragraph (3). 
 
 1. But where the trust is testamentary, that is to say, 
 only intended to operate after death, the trust must, in the 
 absence of fraud, lie contained in a duly executed or attested 
 will or codicil. Thus, in Be Boycs, Boyes v. Carritt (t), a 
 testator, who died in 1882, made a will devising and be- 
 queathing all his property to the defendant Carritt, and 
 ai)j)oiiiting him sole executor. Mr. Carritt, who was the 
 soHcitor of the testator and drew the will, gave evidence to 
 
 (7) For an instance where the terms did not sufliciently a])pear, see 
 Smith V. Mnttheio.s, 3 De G. F. & J. 139. 
 (r) 1 M. & K. 521. 
 (m) I Th. i.y.i. 
 (/) 'JO (Jh. 1). rm ; and sec also Vinrait v. Vincent, .Sf) W. R. 7.
 
 NECESSITY OF WRITING AND SIGNATURE. 55 
 
 the effect that the intention of the testator was tJiat he Art. 11. 
 should hold the lyroperty as trustee for objects of the testator's 
 bounty, who were to be afterwards indicated by him. No 
 direction, however, on the subject was given by the testator 
 in his Hfetime, but after his death two letters were found, 
 w^ritten by him to Mr. Carritt, and sealed up, in both of 
 which he expressed a desire that Mr. Carritt should have 
 £25 to buy a trinket in memory of him, and that all the 
 rest of the property should go to a lady named Brown. 
 Under these circumstances, it being clear that Mr. Carntt 
 ivas a trustee, the question was whether the trust for the 
 lady, Mrs. Brown, was valid and effectual, or whether he 
 was a constructive trustee for the next of kin. Mr. Justice 
 Kay, after examining the authorities, came to the conclusion 
 that, as the law stood, if a trust was not declared by a 
 testator when his will was made, then, in order to make 
 the trust binding, it was essential that it should be com- 
 municated to the devisee or legatee in the testator's lifetime, 
 and that he should accept that particular trust. A devisee 
 or legatee could not, by accepting an indefinite trust of this 
 kind, enable a testator to make an unattested codicil. His 
 lordship regretted that the trust should fail, but he was 
 bound to declare, Mr. Carritt having admitted himself to be 
 a trustee, that the trust was for the next of kin. The 
 reader must, in reading this case, bear in mind that 
 Mr. Carritt admitted that he knew, when he prepared the 
 will, that he was not meant to take beneficially, 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 subse- 
 quent 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 
 subsequently communicated 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 expressly assented to act as trustee, then, as
 
 56 DECLAKED OE EXPEESS TRUSTS. 
 
 Art. 11. 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, aw(i to carry out the testator s 
 intention (as in the 1st illustration to paragraph (4), infra), 
 or to hold the property as under a resulting trust, if no- 
 intention had been declared. 
 
 2. A testator gave his residuarj- real and personal estate 
 upon trust for sale, and upon further trust to pay the pro- 
 ceeds 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 
 was inadmissible that the testator had communicated his 
 wishes verball}^ to one of the two legatees, and that as (apart 
 from such evidence) the precatory words were not sufficient 
 to create a trust, A. and B. took the proceeds of the residue 
 absolutely («). 
 
 Illustkatioxs of Pakageaph (4). 
 
 Fraud an 1. But where a father is induced not to make a will by 
 
 ru^e'^ '°" " statements of his heir presumptive that the latter would 
 make suitable provision for his immediate relatives, the 
 court considers that that is a fraud, and, notwithstanding 
 the statute, will oblige the heir to make a provision in con- 
 formity with his implied obligation (.<). For (as was said by 
 Lord Westbuky, in McCormicky. Grogan {y)), " the court 
 
 (n) lie Donnung, 60 L. T. 140 ; and see also Be King, 21 L. R. Ir. 
 273, and Smart v. Pt~njean, 6 Ves. 560. 
 
 (x) Sel/ack v. Harris, 5 Vin. Ab. 521 ; Strickland v. Aldridge, 
 9 Vcs. 219. 
 
 (y) 4 H. L. 82. Tlie American courts follow the Englisli with 
 regard to the adniissihility of parol evidence in cases of fraud generally, 
 l)Ut in Bc.dilloii v. SkiIou, 8 Wall. junr. 279, a distinction was taken 
 hetween ca.ses like McCormivk v. Orogan, wiiere a fatiicr was fraudu- 
 lently induced )iot to make a will, and cases like those cited below, 
 where a testatoi- was fraudulently induced either to make or to abstaiiv 
 from it!Voking a will. In tlie former case tlie American court differed 
 from ours, lioldiny that no trust could be enfoi-ced on the heir, who 
 merely took by descent or operation of law, although, in the latter 
 eiasH of eases, where the trustee ex jnnlcjirio iiad procured a devise or 
 hoquest for liimself, it was admitted tiiat the trust could be proved by 
 parol. It would seem, too, tliat the American courts will not enforce
 
 NECESSITY OF WRITING AND SIGNATURE. 5T 
 
 has, from a very early period, decided, that even an Act of Art. 11, 
 Parhament shall not be used as an instrument of fraud ; and 
 if in the machinery of effectuating a fraud an Act of Parlia- 
 ment intervenes, a court of equity does not, it is true, set 
 aside the Act of Parliament, but it fastens upon the 
 individual who gets a title under that Act, and imposes 
 upon him a personal obligation, because he applies the Act 
 as an instrument for accomplishing a fraud. In this way a 
 court of equity 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, communicates the disposition to the person on the face 
 of the will benefited by that disposition, but at the same 
 time says 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 to carry into effect, and the disponee 
 assents to it (either expressly or by any mode of action 
 which the disponee knows must give to the testator the 
 impression and belief that he fully assents to the request), 
 then undoubtedly the heir-at-law in one case, and the dis- 
 ponee in the other, will be converted into trustees ; simply 
 on the principle that an individual shall not be benefited 
 by his own personal fraud." 
 
 2. " The authorities establish the following propositions: Fraud by 
 If A. induces B. either to make or to abstain from revoking ?"i^i°iecratees 
 a will leaving him property, by exjjressly promising or tacitly 
 consenting to carry out B.'s wishes concerning it, the court 
 will hold this to be a trust, and will compel A. to execute 
 it: see McCormick v. Grogan {z), where Lord Hathekley 
 says : ' but this doctrine evidently requires to be carefully 
 restricted within proper limits. It is in itself a doctrine 
 which involves a wide departure fi'om the policy which 
 induced the legislature to pass the Statute of Frauds, and 
 it is only in clear cases of fraud that this doctrine has 
 been applied in cases in which the court has been persuaded 
 
 a mere promise b}' a legatee unless there was actual fraud or undue 
 influence (see Suffer v. Bird, 103 Pa. St. 403 ; Eaysdale v. Baysdah, 
 68 Miss. 92), whereas our courts would seem to infer fraud from the 
 breach of such a promise, 
 (s) Ubi supra.
 
 58 DECLAEED OE EXPEESS TEUSTS. 
 
 Art. 11. that there has been a fraudulent inducement held out on the 
 ~ part of the apparent beneficiary in order to lead the testator 
 
 to confide to him the duty which he so undertook to per- 
 form.' If A. induces B. either to make, or to leave unrevoked, 
 a will leaving property to A. and C. as tenants in comvion, 
 by expressly promising, or tacitly consenting, that he and 
 C. will carry out the testator's wishes, and C. knows nothing 
 of the matter until after A.'s death, A. is bound, but C. is 
 not bound (a) ; the reason stated being, that to hold other- 
 wise would enable one beneficiary to deprive the rest of their 
 benefits by setting up a secret trust. If, however, the gift 
 were to A. and C. as joint tenants, the authorities have 
 established a distinction between those cases in which the 
 will is made on the faith of an antecedent promise by A., 
 and those in which the will is left unrevoked on the faith of 
 a subsequent promise. In the former case, the trust binds 
 both A. and C. (h), the reason stated being that no person 
 can claim an interest under a fraud committed by another ; 
 in the latter case, A. and not C. is bound (c), the reason 
 stated being that the gift is not tainted with any fraud in 
 procuring the execution of the will " (c?). 
 
 Fraud under 3. The rule as to admissibility of parol evidence where 
 conveyances there is fraud, is equally applicable to cases where one has 
 fraudulently induced the execution of a conveyance. There- 
 fore, where the plaintiff purported to assign to the defendant 
 an agreement for a lease absolutely, but there appeared to 
 have been a parol collateral arrangement that the defendant 
 should hold part of the premises in trust for the plaintiff, it 
 was held that such a trust could be proved by parol evidence ; 
 for (assuming the arrangement to have been in fact made) 
 to exclude parol evidence would operate to effectuate a 
 fraud (e). 
 
 (a) Tito. V. /'enis, 2 K. & J. 357. 
 
 (h) UnHHtll V. Jartson, 10 Hare, 204 ; Jones v. Bndley, 3 Cli. App. .362. 
 
 (r) liiirni'if V. Maciloimid, 15 Sim. 6; Moss v. Cooper, 1 J. & H. 3.52. 
 
 {li) /Vr Fahwklj., J., in L'e Stead, Witham v. Andrew, [1900] 1 Cli. 
 237, 210. 
 
 {<) lUxith V. Tmie, 16 Va\. 182; Re Dnke of Marlboroii'jh, Davis v. 
 Whitehead, [18041 2 Cli. 133; ana ace to like effect Bochcfoucauld v. 
 limuitcad, [1897] 1 Cli. 196, ^^llOl•e the rule was applied to foreign land.
 
 ( 59 ) 
 
 CHAPTEE III. 
 
 VALIDITY OF DECLARED TRUSTS IN RELATION 
 TO LATENT MATTERS. 
 
 ART. PAGR 
 
 12. — Who may be a Settlor - - 59 
 
 13. — TVlio may be Beneficiaries - ------ 62 
 
 14. — Whe7i Voidable for Failure of Consideration, Mistake, or 
 
 Fraud -.-'---.-- 66 
 
 15. — When void as against Settlor's Creditors imder 13 Fliz. c. 5 - 74 
 
 16. — When void under Bankruptcy Act - - - - - 85 
 
 17. — When void as against subsequent Purchasers from Settlor - 89 
 
 Art. 12. — Wlio viay he a Settlor. 
 
 Every person who can hold and dispose of any 
 legal or equitable (a) estate or interest in property 
 may create a trust in respect of it. 
 
 Illustrations. 
 
 1. Practically speaking, an infant cannot now effectually Infants, 
 dispose of property so as to bind hiixiself ; and, therefore, 
 • cannot, except under the statute next mentioned, make an 
 irrevocable settlement. However, males over the age of 
 twenty, and females over the age of seventeen years can 
 now, upon marriage or afterwards (b), with the approbation 
 of the High Court (acting in pursuance of the power given 
 to it by the statute 18 & 19 Vict. c. 43, explained by 
 23 & 24 Vict. c. 83), make binding settlements of real and 
 personal estate belonging to them in possession, reversion, 
 remainder, or expectancy. This Act, however, has only 
 removed the disability of infancy, leaving unaffected other 
 
 (a) Oilberf v. Overton, 2 H. & M. 110 ; Kekewich v. 2[anning, 1 Hare, 
 464; Donaldsons. Donaldson, Kay, 711. 
 
 (6) Re Phillips, 34 Ch. D. 467 ; /.'e Sampson and Wall, 25 ib. 482.
 
 60 
 
 DECLAEED OR EXPRESS TRUSTS. 
 
 Art. 12. disabilities (if any), such as lunacy or coverture. In fact, 
 under it, a married female infant of sound mind may do all 
 that an adult married woman could do, and no more (c), 
 
 Married 
 women. 
 
 2. Women married since December 31st, 1882, are in 
 the same position with regard to their beneficial interest 
 in property as spinsters (d). They can, therefore, create 
 trusts in relation to it, either by act inter vivos, or by 
 testamentary disposition. Women married prior to that 
 date are in the same position with regard to any property as 
 to which their title first accrued (whether as a possessory 
 or a reversionary title (e) ) since December 31st, 1882. With 
 regard to other married women, they can only alienate 
 (and therefore can only create trusts) in the following 
 cases, viz. : (1) where they are donees of a power of 
 appointment (/) ; (2) where the property is settled to thek" 
 separate use {g) without restraint on anticipation ; (3) where 
 the property is their separate property under the repealed 
 Married Women's Property Act of 1870 (33 & 34 Vict. c. 93) ; 
 (4) where the property is real estate, and their husbands 
 join in an acknowledged deed : (5) where the property is 
 reversionary personalty, their title to which is derived 
 under an instrument (other than their marriage settlement) 
 executed after December 31st, 1857, and then- husbands 
 join in an acknowledged deed (/?). 
 
 Corporations. 3- Prior to 5 & 6 Will. 4, c. 76, municipal corporations 
 were able to create trusts of their property [i) ; but since 
 that Act corporations incUulcd in the schedule to it are 
 themselves made trustees of their property for public pur- 
 poses, and consequently cannot create trusts of it (k). 
 
 {c) Biichma-sler X. BuchmoAttr, .S5 Cli. 1). 21. 
 
 (d) 20 & 21 Vict. c. "i. 
 
 (e) Married Women's Property Act, 1882 (45 & 46 Vict. c. 75) ; 
 and see lidd v. litid, .31 Ch. D. 402. But as to Avlien a title does 
 fii-st accrue, cf. lie J'arsoii'<, Storkhy v. Pardons, 62 L. T. 929. ,«!:«il-', 
 
 (/) liurmJl V. Mann, 1 Ves. 156. 
 (</) Taylor v. Meadcs, lU L. J. Cli. 203. 
 (h) 20 & 21 Vict. c. 57. 
 (j) (Jolrhesltr V. LoH'fon, 1 V. & li. 226. 
 
 (k) 5 & 6 Will. 4, c. 76, s. 94 ; Attoriiey-Oeneral v. Aspincd, 2 M. & 
 C. 613.
 
 WHO MAY BE A SETTLOR. 61 
 
 4. It is clear that a lunatic cannot create either a testa- Art. 12 
 mentary trust, or a trust inter vivos in favour of volunteers (/). 
 
 On the other hand, where a person who is a lunatic in fact, Lunatics, 
 but is not known to be so to persons privy to valuable 
 consideration, executes a settlement for valuable considera- 
 tion, it would seem that the settlement would not be set 
 aside, either at law or in equity (hi). It must, however, be 
 borne in mind that a lunatic is incapable of contracting 
 a valid marriage, and th^t, consequently, a settlement 
 executed by a lunatic in consideration of an intended 
 marriage could not be said to be a settlement based on 
 value. No doubt such cases inflict intolerable hardship 
 on a woman who has gone through the ceremony of mar- 
 riage with a lunatic without knowledge of his incapacity ; 
 but as such a marriage has never in the eyes of the law 
 taken place, a trust to take effect on or after the marriage 
 fails, because the contingency on which it is to commence 
 never happens. The case in fact would come under the 
 principle which has been applied to settlements made in 
 consideration of marriage with a deceased wife's sister (n). 
 
 5. A convict (i.e., one sentenced to death or penal servi- Convicts, 
 tude for treason or felony (o) ) is incapable, until the 
 expiration of his sentence, or until his death (jj), of alien- 
 ating or charging his property ; and therefore he is incapable 
 
 of declaring a trust of it, at all events by act inter vivos. 
 This incapacity, however, is suspended for any period 
 during which the convict may be at large under a ticket 
 of leave {q). 
 
 (I) See Neil v. Morley, 9 Ves. 478. 
 
 (ill) See Molton v. Camroux, 2 Exch. 487, 503 ; affirmed 4 Exch. 17 ; 
 and Price v. Berrington, 3 M. & G. 486 ; Neil v. Morley, 9 Ves. 478. 
 
 (n) See Pawson v. Brown, 13 Ch. D. 202 ; and Neale v. Neale, 
 79 L. T. 629. 
 
 (o) 33 & 34 Vict. c. 23, s. 6. 
 
 (p) lb., ss. 7 and 8. Qiuere, whether this Act would prevent a 
 convict making a valid will. 
 
 {q) lb., s. 30.
 
 62 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 13. 
 
 — !— Art. 13. — WJio maij he Beneficiaries. 
 
 (1) Eveiy person who is capable of holdings 
 property may lawfully be a beneficiary of it under 
 a trust (r). 
 
 (2) A trust (which is not a charitable trust (s)) 
 to perform certain duties which are of no benefit 
 to an}* human being, is (semhle) not enforce- 
 able (t), although it may be valid if the trustee 
 desires to perform it, unless it transgresses the 
 rule against perpetuities (u). If the trustee does 
 not perform it there is a resulting trust of the 
 unapplied property in favour of the settlor or his 
 representatives. 
 
 Illustrations of Paeageaph (1). 
 
 Corporations. 1. A corporation cannot be cestui que trust of lands 
 without licence under the Mortmain Acts ; for without such 
 licence it cannot hold lands, and therefore cannot take 
 through the medium of a trust. There are, however, 
 numerous statutory exceptions to this in relation to muni- 
 cipal corporations, incorporated trading companies, colleges 
 and the like too numerous to mention in this work. 
 
 Alifiis. 2. Similarly, before the x\ct 33 Vict. c. li, an alien, as he 
 
 could hold property against everyone except the Crown, 
 could also be a beneficiary of land a^ against everyone 
 except the Crown {x). But as he could not take a legal 
 
 (/•) Lewin, 40. 
 
 («) Trusts may be charitable, although not directly benefiting human 
 lieings ; e.g., trusts for providing a liome for lost dogs, triists for the 
 protection of animals lialile to vivisection, J\e Don(fla--<, Ohertv. Barron, 
 ;iri Ch. I). 47ii : and trusts for repairing a church or church3'a.rd, Be 
 Vavijhdii, Vdiujhan v. Tho7U(t-<, 33 Ch. 1). 187. 
 
 (t) UirLnrd v. Rohson, 31 Beav. 244 ; L/oyd v. Lloyd, 2 Sim. (n.s.) 255 ; 
 ThomjtxoH V. Shake. tp( are, Johns. 612; Foir/tr v. Foirler, 33 Beav. 616; 
 Fixk V. Attorney-GtneraJ, 4 E(|. 521; Iluntrr v. Bullock, 14 Eq. 45; 
 DatiMon v. Small, 14 Eij. 104; and per North, J., in Re Dean, 
 dooprr-Dean v. Sterni.'<, 41 Ch. 1). .')56. 
 
 (m) /iV. Jh.ati, vlii -yupra, at ]). .'")')7. 
 
 (x) Barrow v. Wadlciii, 24 Bciiv. 1 ; UiUon v. Stordy, 3 Sm. & G. 230 ; 
 Sharpe v. .SV. Sareur, 7 Ch. 351.
 
 WHO MAY BE BENEFICIARIES. ^>'^ 
 
 estate by operation of law, so likewise he could not he a Art. 13. 
 beneficiaiy by act of law (y). As the above Act is not 
 retrospective, it would seem, that aliens who acquired lands 
 anterior to the passing of the Act, are not protected by it, 
 and that the Crown is entitled to all lands of which they are 
 beneficiaries {z). 
 
 3. Although, by recent legislation, married women are as Married 
 capable of holding property as other people, they were not, '^™'"'^"- 
 previous to 1883, in so favourable a position. At common 
 law, the husband was entitled to all his wife's personal 
 chattels in possession ; to the rents and profits of her free- 
 holds during their joint lives ; to all her choses in action 
 which he should reduce into possession during the mar- 
 riage ; and to all her leaseholds. But if he did not reduce 
 the choses in action into possession, or dispose of the lease- 
 holds during the marriage, they reverted to the wife if she 
 survived him. Courts of equity, however, in this instance, 
 did not follow the law% but invented that peculiar equitable 
 estate known as a " separate use." Property, therefore, 
 which is settled in trust for a woman for her separate use, 
 is freed from the jus mariti ; and with regard to it a married 
 woman is regarded as a feme solo. She may dispose of it 
 without her husband's consent, either by act inter vivos, or 
 by will (a), unless she be by the trust restrained from 
 anticipation. In the latter case she cannot dispose of it at 
 all without the sanction of the court, which may, however, 
 be obtained where it is clearly for her benefit, on summons 
 under s. 39 of the Conveyancing and Law of Property Act, 
 1881 (44 & 45 Vict. c. 41). 
 
 Illusteatioxs of Paeageaph (2). 
 
 1. Although it would seem that the court could not Ti-uKts to 
 
 enforce a trust for applying money in the erection of a tomb J'^'^'^ '^ 
 
 ■' ,. 1 , ,T , 1 , keep in repair 
 
 or monument (masmuch as there would be no human bene- tombs. 
 
 ficiary to set the court in motion) it has been said that such 
 
 (?/) Calvin^n Case, 7 Rep. 49. 
 {z) Sharpe v. St. Saveur, supra. 
 
 {a) Peacock v. Monk, 2 Ves. sen. 190 ; Taylor v. Meades, 34 L. J. Ch. 
 203.
 
 €4 DECLARED OR EXPRESS TRUSTS. 
 
 Art 13. trusts are not void, and that the trustees may safely spend 
 the money on the prescribed object if they please (b). 
 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 he took care to limit 
 the time for which the trust was to last, so as to provide for 
 its cesser within the limits fixed by the rule against per- 
 petuities. Where, however, a testator creates a trust for 
 the repair of tombs or monuments, without limiting its 
 continuance in accordance with such rule, it will be abso- 
 lutely void for remoteness (c). On the other hand, a 
 similar indefinite trust for keeping a church or churchyard 
 in repair, would be valid, as it would be considered a chari- 
 table trust in favour of the congregation of the church, and 
 the rule against perpetuities does not apply to charitable 
 trusts (fZ). It has also been recently decided, that a testator 
 may make a gift to a charity conditionally upon their keep- 
 ing his tomb in repair, with a gift over to another charity 
 in the event of the tomb being allowed to fall into dis- 
 repair (e). 
 
 2. The American courts have held that a trust to keep in 
 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 (/). 
 
 Trusts for On the same principles a trust, limited in point of time 
 
 the beneHt within the rule against perpetuities, to apply money for 
 horses, 'etc. keeping specified pet animals in comfort during their lives, 
 
 is perfectly legal, although no person could enforce it (g). 
 
 Moreover, dogs and horses and other domestic animals are 
 
 {})) Per North, J., AV Dean, Cooper-Dean v. Stevens, 41 Ch. T)., 
 at p. r).57. 
 
 (c) Be Vauijhaii, Vauf/han v. Tliomas, 8.3 Ch. D. 187. 
 
 (d) Re VaiKjhan, VaiKiIian x. Thomas, supra ; Jloare v. Osborne, 
 1 Kq. r>Hr> ; Jie Riijley, 1 W. U. :\A± 
 
 (e) lie Tyler, Tyler v. Tyhr, | 1S!)1 | .'{ Cli. 2-')'2. 
 
 ( /■) Siniisey V. American JJible tSoeiely, 57 Mu. 527 ; Riper v. Moulton, 
 72Cli. l.W. 
 
 (f/) Re Dili II, fhoper-Dean v. Stevens, .supra; and Mitford v. 
 Reynolds, 1(> Sim. 105.
 
 WHO MAY BE BENEFICIAEIES, 65 
 
 considered so useful to man, that it is settled that a char I- Art. 13. 
 table trust of undefined continuance may be established in 
 their favour (Ji). Moreover, Chitty, J., held that anti- 
 vivisection societies are charities on the ground that their 
 object (whether rightly or wrongly) was the prevention of 
 cruelty to animals useful to man (/). 
 
 3. On the other hand where directions are given to Capricious 
 trustees to manage property in a particular way for no one's i^^^^^ to the 
 benefit, it would seem that the trust is absolutely void, and management 
 that the person entitled to the property by law can claim it q^^w^""'^^^ 
 at once as if the trust had never been declared. Thus, 
 where a house was devised to trustees in trust to block up 
 windows and doors for twenty years, and at the end of that 
 period upon trust to convey it to A. in fee, it was held that 
 the first trust was void, and that the heir-at-law took the 
 house during the twenty years (k). So in America it has 
 been held that a trust to keep a favourite clock of the 
 testator in repair was void (L). It is, however, difficult in 
 principle to distinguish these cases from those relating to 
 the keeping up of tombs, unless it be on the ground that the 
 keeping of a tomb is not a misuse of property, whereas the 
 shutting up of a house which might otherwise be useful to 
 mankind is contrary to the policy of the law. The whole of 
 the cases relating to this question require to be reviewed 
 by the House of Lords before any intelligible principle can 
 be extracted from them. 
 
 (h) Per North, J., E& Dean, Cooper-Dean v. Steven^;, supra, at 
 p. 557 ; and see Armstrong v. Beeves, 25 L. R. Ir. 325. 
 
 (i) Be Foveaux, Cross v. London Antivivisection Society, [1895] 2 Ch. 
 501. Curiously enough, it is believed that no case of trusts in favour 
 of animals has ever been before the Amei'ican courts. 
 
 (k) Brown v. Burdett, 21 Ch. I). 667. 
 
 (/) Kelly V. Nichols, 17 R. I. 306.
 
 (36 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 14. 
 
 Art. 14. — When Voidable for Failure of Con- 
 sideration., Misfal-e, or Fraud. 
 
 (1) The Court will cancel a trust at the suit of 
 the settlor or his representatives (m), if : — 
 
 (a) the very object with which the trust was 
 
 created has ceased to exist (n) ; or 
 
 (b) the settlement was executed in ignorance 
 
 or mistake as to its effect (o) ; or 
 
 (c) fraud or undue influence has been exer- 
 
 cised to induce the settlor to create the 
 trust (jj) ; 
 
 (2) Provided the settlor has not (in the two 
 latter cases) acquiesced in or acted upon the 
 settlement after the influence has ceased, or after 
 he has become aware of the legal effect of it (q) ; 
 and that the status of the parties has not been 
 irrevocably altered as part of the transaction (r). 
 
 As stated iu Article 8 {supra), ^vhere a trust has once 
 been perfected or declared, and does not rest in fieri, the 
 court will enforce it against the settlor and his represen- 
 tatives, notwithstanding that it may have been entu-ely 
 voluntary on his part. But although that is so, a trust, 
 like a contract, will be cancelled in Equity for fraud, 
 mistake, or total failure of the object for which it was 
 created. 
 
 (m) Andf-rmn v. Elsworth, 3 fJifif. \-^A ; Ti/ars v. Al^p, 37 W. R. 339 ^ 
 Mor/f)/ V. Longhiiari, [189.S] 1 Cli. 736. 
 
 (//) '.See L\ser!/ v. Coidard, '26 Ch. D. 191 ; Bond v. Walford, 
 32 Ch. D. 238. 
 
 (o) Phil/>ps V. Mtiflivgs, 7 Ch. App. 244 ; Faushave v. Wdshy, 
 .30 lieav. .343 ; and see as to mistake where a provision for daughters 
 ■wa.s oniittod hy the engrossing clerk, JxeDanidl, 1 Ch. D. 375; and see 
 Ctark V. (iirdirood, 7 Ch. T). 9. 
 
 ( p) Oxniond V. Filr.roif, 3 1*. W. 129 ; Huguenin v. Base-ley, 14 Ves. 
 273 : />:«/ V. Bnmni, 4 .Si. & C. 277 ; lloghtcmv. Hoghlon, 15 Beav. 299 j 
 (J(K)kf: V. Lnmottt \ 15 Beav. 234. 
 
 (7) fJan'fx V. JJavies, 9 Kcj. 468, and cases cited ; Allcard v. Skinner, 
 .36 Ch. 1). 145. 
 
 (r) ,fohn»ton v. Johnston, 52 L. T. 76,
 
 VOIDABLE FOR MISTAKE, FRAUD, ETC. 67 
 
 For some years, indeed until quite recently, it was con- Art. 14. 
 sidered that, where a trust was voluntary, and the settlor 
 invoked the aid of the court to set it aside, the 07ms was 
 immediately cast on the beneficiaries of showing that all 
 the provisions of the settlement were proper and usual, or, 
 that if there were any unusual provisions, they were brought 
 to the knowledge of, and were understood by, the settlor (s). 
 In particular, the absence of a power of revocation was 
 considered to be fatal unless it could be conclusively shown 
 that the settlor had been advised to insert one, and had 
 deliberately elected not to do so [t). This view was, how- 
 ever, dissented from by the Court of Appeal in Hall v. 
 Hall{u), and by the late Sir George Jessel, M.R., in 
 Button V. Thom23Son{x), and appears to be no longer law. 
 In the latter case the late Master of the Eolls said: "I 
 emphatically disagree with the ground on which some 
 judges have set aside voluntary settlements, namely, that 
 there were provisions in them which were not proper to be 
 inserted in such settlements. It is not the province of a 
 Court of Justice to decide on what terms or conditions a 
 man of competent understanding may choose to dispose of 
 his property. If he thoroughly understands what he is 
 about, it is not the duty of a Court of Justice to set aside 
 a settlement which he chooses to execute, on the ground 
 that it contains clauses which are not proper. No doubt 
 if the settlement were shown to contain provisions so absurd 
 and improvident that no reasonable person would have con- 
 sented to them, or if provisions were omitted that no 
 reasonable persons would have allowed to be omitted, that 
 is an argument that he did not understand the settlement. 
 But in no other way would it be a reason for setting it 
 aside." In Henry v. Armstrong (y) Kay, J.,- said : " No 
 doubt there are to be found in the reported cases, dicta to 
 the effect that the omis of supporting a voluntary deed rests 
 upon those who set it up ; but I do not think that these 
 
 (<s) Phillips V. MuUings, supra. 
 
 \t) Coutts V. Acworth, 8 Eq. 558 ; Wollaston v. Trihe, 9 Eq. 44 ; 
 Eixritt V. Everitt, 10 Eq. 405. 
 
 (m) 8 Ch. App. 430. 
 
 (X) 23 Ch. D. 278. 
 
 (y) 18 Ch. D. 668. The authorities are by no means satisfactory as 
 to the question of oims. 
 
 F 2
 
 68 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 14. dicta go so far as to say, that whenever a voluntary settle- 
 ment is impeached on any ground whatever, the onus is at 
 once thrown on those who would maintain it. As I under- 
 stand it, 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 property, is bound by his own 
 act ; and if he comes to have the deed set aside— especially 
 if he comes a long time afterwards — he must prove some 
 substantial reason why the deed should be set aside." This 
 remark as to omis is in apparent conflict with a dictum of 
 the late Lord Hatherley in Phillips v. MulUngs {z), where 
 his lordship said : " It is clear that anyone taking any 
 advantage under a voluntary deed, and setting it up against 
 the donor, must slioto that he thoroughly understood what 
 he was doing." It is, however, respectfully apprehended 
 that Lord Justice Kay's dictum is quite consistent with 
 Lord Hatherley' s ; for the latter merely said that where 
 the beneficiaries set up the deed against the donor, the onus 
 s upon the beneficiaries ; while the Lord Justice said, that 
 where the settlor asks to have the deed set aside, the omis is 
 upon him. In short, the omis is, in general, upon the 
 person seeking relief, unless the beneficiary occupied a 
 fiduciary position towards the settlor. The cases of Button v. 
 ThomiJson, Henry v. Armstrong , and Phillips v. MidUngs, 
 coupled with Ilally. Hall (above cited) must, it is submitted, 
 be taken to have definitely overruled the previous decisions 
 in Coutts V. Acivorth (a), Wollastony. Tribe {a), and Everitt v. 
 Everitt{a), and to have left the onus of showing mistake, 
 fraud, or undue influence upon the settlor in all cases, 
 • except those in which the provisions of the settlement are 
 so absurd as to raise a presumption that no sane person 
 would have agreed to them knowingly, and except cases in 
 which the beneficiary occupied at the date of the settlement 
 a fiduciary position towards the settlor, in which latter 
 there is a strong primd facie pi^esumption of undue influence 
 which casts the onus of supporting the settlement on the 
 beneficiary (/;). 
 
 (z) 7 f 'li. App. 244. (a) UJn supra. 
 
 (h) llmiiK iiin. V. liaHdlr.y, 14 Ves. 273; Hylf.ou v. Hi/lloii, 2 Ves. 547 : 
 Thinlrr v. AthlnH, '^ M. & K. 113; Tate. v. Williamson, 2 Ch. App. 5"); 
 Allrardx. Skiimn; :{(i Cli. 1). 14,5; Mori (if v. Lowjhnau, [1893J 1 Cli. 
 736 ; and hco llIusLiatioiiH, infra.
 
 VOIDABLE FOE MISTAKE, FRAUD, ETC. ()9 
 
 Illusteations of Paeagraph (1) (a). . 
 
 1. In the recent case of Essery v. Coiolarcl (c), by a settle- Total failure 
 ment executed in 1877, in consideration of a then intended ^^^^^^ 
 marriage, it was declared that a sum of stock, which had 
 been transferred by the intended wife to trustees, should 
 be held by them on trust for her benefit and that of the 
 intended husband, and the issue of the intended marriage. 
 The marriage was not solemnized, but the parties cohabited 
 without marriage, and three children were born. In 1883 
 an action was brought by the father and mother of these 
 children against the trustees to have it set aside ; and it 
 was held that the contract to marry having been absolutely 
 put an end to, the court could cancel the settlement. A 
 similar decision was arrived at in the more recent case of 
 Bond V. Walford (d), where an intended marriage had been 
 simply broken off. 
 
 Illustrations of Paragraph (1) (b). 
 
 1. Although a voluntary trust will not be set aside or Mistake, 
 varied for the mere asking, yet where the settlor can show 
 that he misunderstood the effect of it, relief will be given to 
 him. In the recent case of James v. Couchman (e), it 
 appeared that the plaintiff had, by a voluntary settlement 
 (made with the object of protecting himself against extrava- 
 gant habits), assigned property to trustees, upon trust for 
 himself for life, remainder to his wife (if any) for life, 
 remainder to his issue, and in default of issue to his paternal 
 next of kin. Mr. Justice North, while refusing to set aside 
 the settlement, thought that the ultimate limitation was 
 unusual, and that the settlor's attention was not called to it, 
 and that he did not understand the effect of it ; and accord- 
 ingly his lordship ordered the settlement to be rectified so as 
 to give the settlor a power of appointment in default or 
 failure of issue. His lordship, however, was careful to add: 
 " The fact that a usual power was omitted here would not 
 weigh with me in the least, if I were satisfied that the 
 omission of such a power had been brought to the attention 
 
 (c) 26 Ch. 1). 191. (d) 32 Cb. D. 238. (e) 29 Ch. D. 212.
 
 70 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 14. of the settlor, as he would then have been competent to 
 judge for himself ; but it seems to me that in the present 
 case his attention was not called to it." 
 
 2. Where a person, apparently at the point of death, 
 executed a voluntary settlement, of which he recollected 
 nothing, which was never read to him, and in which a 
 power of revocation was purposely omitted by the soUcitor 
 on the ground that he knew the variable character of the 
 settlor, and there was also evidence that the settlor thought 
 that he was executing the settlement in place of a will, it 
 was held that the settlement was revocable (/). 
 
 3. Even where there is valuable consideration given, but 
 the settlor is infirm and ignorant, and there is reason to 
 suppose that he did not fully understand the transaction, it 
 will be set aside, unless it be proved that full value was 
 given (g). 
 
 Fraud. 
 
 Undue 
 
 religious 
 
 influence. 
 
 Illusteatioxs of Paeagkaph (1) (c). 
 
 1. Where a settlor has been induced by fraud to make a 
 settlement (whether voluntary or based upon value), it will 
 not be enforced ; as, for instance, where a wife induces her 
 husband to execute a deed of separation, in conteviplatioii of 
 a renewal of illicit intercourse {h). Where, however, it is 
 not in her contemplation at the time, but she does in fact 
 subsequently commit adultery, then as there was no original 
 fi-aud, the subsequent adultery will not avoid the settle- 
 ment (i). 
 
 2. On the other hand, where a confidential relationship 
 exists between the settlor and the beneficiary at the date of 
 the settlement, the wnis is decidedly thrown on the bene- 
 ficiary of proving affirmatively, not only that there was no 
 
 (/) Famhaxne v. WtUty, 30 Bear. 24.3 ; Wood v. Cook, 40 Ch. D. 461 ; 
 Blake V. Power, 37 W. R. 461. 
 
 (.7) Baker v. Mcnik, 33 Beav. 719; Clark v. Malpas, 31 Beav. 80; 
 LinrjuaU v. Ledyer, 2 Gift'. 137 ; and see O'Borke v. Bolingbroke, 
 2 App. Caa. 814 ; and Re Fry, 40 Ch. D. 104. 
 
 (A) Bromi v. Bromi, 7 Eq. 185 ; and see Evans v. Carrington, 
 2 D. F. & J. 481 ; and Emm v. Edmonds, 13 C. B. 777. 
 
 (i) isea'jrave v. Sta<jrave, 13 Ves. 443.
 
 VOIDABLE FOR MISTAKE, FRAUD, ETC. 71 
 
 undue influence exerted, but that the settlor had independent Art. 14 
 advice, and that the settlement contains all usual and proper 
 powers and provisions, and if there are any unusual pro- 
 visions, that they were brought to the notice of and under- 
 stood by the settlor. Thus, in the leading case of Huguenin v. 
 Baseley (k), where a widow lady, very much under the 
 influence of a clergyaian, made a voluntary settlement in 
 his favour, it was held to be invalid. As Bowen, L.J., 
 said in a recent and most important leading case (l), " It is 
 plain that equity will not allow a person who exercises or 
 enjoys a dominant religious influence over another, to 
 benefit directly or indirectly by the gifts which the donor 
 makes under or in consequence of such influence, unless it 
 is shown that the donor, at the time of making the gift, was 
 allowed full and free opportunity for counsel and advice 
 outside — the means of considering his or her worldly position, 
 and exercising an independent will about it. This is not a 
 limitation placed on the action of the donor ; it is a fetter 
 placed on the conscience of the recipient of the gift, and one 
 which arises out of public policy and fair play." 
 
 3. On similar grounds, a gift made by a client to a Undue influ- 
 Bolicitor, while the relation of solicitor and client exists, is ence by 
 voidable. And although such gift may be ratified after the 
 relation has ceased to exist, yet, in order to establish 
 ratification, it must be proved to the satisfaction of the 
 court that the donor, at the time when he was a free agent, 
 and knew of his right to recall the gift, intentionally deter- 
 mined to forego that right. In the absence of such evidence, 
 the gift may be avoided, not only by the donor, but by his 
 personal representatives (m). As Cotton, L.J., said (n) : 
 " We must find something equivalent to a present gift when 
 the influence arising from the existence of the relationship 
 had ceased to exist : in the words of Turner, L.J., in 
 Wright v. Vanderplank (o), there must be ' a fixed, deliberate, 
 
 (k) 14 Ves. 273. 
 
 (/) Allcard v. SJdnner, 36 Cli. D. 145, 193 ; and see also Morhy v. 
 Loiighnan, [189.3] 1 Cli. 736. 
 
 (m) Tyars v. AUop, 37 W. R. 339. 
 
 {a) lb., at p. 340 ; ;ind see also Nanney v. Williams, 22 Beav. 452. 
 
 (o) 8 De G. M. & < J. 133 ; 4 W. R. 410 ; and see also Mitchell v. 
 Homfray, 8 Q. B. D. :^hl ; 29 W. R. 558.
 
 72 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 14. 
 
 Undue 
 
 parental 
 
 influence. 
 
 and unbiassed determination that the transaction should 
 not be impeached.' In the case of a gift to a solicitor, the 
 court looks most carefully to see if there has been a fixed, 
 deliberate, and unbiassed determination on the part of the 
 donor that the transaction should not be impeached." 
 Indeed, the Court of Appeal has laid it down that in the 
 absence of independent advice, the presumption that the 
 settlor was unduly influenced is absolute and irrebuttable ; 
 and has also extended the doctrine not only to gifts to the 
 solicitor himself, but also to his wife (^j), or his son [q). 
 
 i. So, w^here a deed conferring a benefit on the settlor's 
 father is executed by a child who is not yet emancipated 
 from his father's control, if the deed is subsequently 
 impeached by the child, the oiiics is on the father to show 
 that the child had independent advice, and acted on that 
 advice (r), and that he executed the deed with full know- 
 ledge of its contents, and with the full intention of giving 
 the father the benefit conferred by it (s). However, where 
 such a deed is substantially a resettlement of family estates' 
 (as distinguished from a mere voluntary trust in favour of a 
 parent), it is not essential that the child should have inde- 
 pendent advice ; and the court will not inquire whether the 
 influence of the father was exerted with more or less 
 force (^). No doubt, where the father obtains a benefit 
 under such a deed, the jealousy of the court is aroused ; 
 yet, if, on the whole facts, the benefit is not an unfair one, 
 the court will not set it aside (u). These remarks, how- 
 ever, do not extend to the case where a father obtains a 
 benefit under his daughter's marriage settlement. In such 
 cases, the daughter ought to have ndependent advice (u). 
 In a recent case (r), Fahweld, J., laid it down broadly, 
 that where a young person is miaded to make a voluntary 
 settlement in favour of a parent, it is not enough that he 
 
 ip) Li/fn V. 7Vrri/, [ISfif)] 2 Q. 15. ()79. 
 
 (q) Barron \. ir»7//s, ( !!)()(» | 2 (Jh. 121. 
 
 (r) PoircIL V. J'oiiull, 1 1!)()()| 1 VA\. 243. 
 
 (v) lidivhriiiijc. V. /iroiimr, 18 Cii. 1). 1H8 ; and ace Tate. v. WUliam^aii, 
 2 (Jh. Ai)j). .')"); Kinifison v. Anhlxc, 10 Ch. App. 15, and cases cited ; 
 tnd Tv'krrv. nmiir//, HH VA\. I). 1. 
 
 ^/.) I/dh/i/ii V. J/oh/i/ii, 41 Cli. I). 2U0 ; and see JJaiuliriijijc v. Broinne^ 
 HUjrra. 
 
 (u) Turbr v. Jii mult , siipnt.
 
 VOIDABLE FOR MISTAKE, FRAUD, ETC. 73- 
 
 should have independent advice, unless he acts on that Art. 14. 
 advice ; it is the duty of a soKcitor independently advising 
 an intending settlor, to protect him against himself, and 
 not merely against the personal influence of the donee in 
 the particular tranaction ; and if his advice is not accepted 
 he should decline to act further. The learned judge also 
 considered that in every voluntary settlement of this kind, 
 a pov^er of revocation should be inserted. 
 
 Illustkations of Paeageaph (2). 
 
 1. Where a father induced a young son, who was still Acqui- 
 under his roof, and subject to his influence, to make a 
 settlement in favour of his step-brothers and sisters, it was 
 held, that if the son had applied promptly, the court would 
 have set it aside. But as he had remained quiescent for 
 some years, and had made no objection to the course which 
 
 he had been persuaded to follow, he was not entitled to 
 relief. For by so doing, he had in his maturer years 
 practically adopted and confirmed that which he had done 
 in his early youth (x). Nor will the court interfere where 
 the settlor subsequently acts under the deed, or does some- 
 thing which shows that he recognises its validity ; unless, 
 indeed, he was ignorant of the efiect of the settlement at 
 the date of such recognition (y). 
 
 2. So where a lady entered a religious sisterhood, and, 
 under circumstances which amounted to undue influence, 
 made a voluntary settlement in favour of the sisterhood, 
 but omitted, for more than six years after severing her 
 connection with it, to seek to have the settlement set aside, 
 it was held that her acquiescence barred her claim for relief. 
 As LiNDLEY, L.J., said: "In this particular case, the 
 plaintiff considered, when she left the sisterhood, what 
 course she should take ; and she determined to do nothing, 
 but to leave matters as they were. She insisted on having 
 back her will, but she never asked for her money until the 
 
 (x) Turner v. CoUins, 7 Cli. 329. 
 
 (yj Jarratt v. Aldam, 9 Eq. 463 ; Motz v. Moreau, 13 M. P. C. 376 ; 
 Wright v. Vanderplank, 2 K. & J. 1 ; Milner v. Lord Haren^ood, 
 18 Ves. 259 ; Davits v. Davies, 9 Eq. 468. As to ignorance, see Lister v. 
 Hodgson, 4 Eq. 30.
 
 74 DECLAEED OK EXPRESS TRUSTS. 
 
 Art. 14. end of five years or so after she had left the sisterhood. In 
 this state of things I can only come to the conclusion that 
 she deliberately chose not to attempt to avoid her gifts, but 
 to acquiesce in them. I regard this as a question of fact, 
 and upon the evidence I can come to no other conclusion 
 than that which I have mentioned" (z). 
 
 •Change of 3. An instance of the effect of change of status in pre- 
 
 venting the settlor from procm^ing the cancellation of a 
 settlement, even where its execution was induced by most 
 serious misrepresentations, is afforded by the case of 
 Johnston v. Johnston (a). There the settlor had married 
 a lady who represented to him that she had divorced her 
 first husband for adultery and cruelty ; whereas, in point of 
 fact, she herself had been divorced for adultery at his suit. 
 The settlor, on discovering this, commenced an action to 
 have the settlement set aside. Pearson, J., dismissed it as 
 being frivolous and vexatious ; and the Court of Appeal 
 confirmed his decision, on the ground that the plaintiff 
 could not set aside the settlement and yet keep the only 
 consideration which was given for it ; one essential con- 
 dition of cancellation being (as Fey, L.J., observed) restitutio 
 in integrum, which was there impossible. 
 
 Art. 15. — WJien void as against Settlor's 
 Creditors under 13 Eliz. c. 5 (b). 
 
 (1) A settlement of hereditaments (c), corporeal 
 or incorporeal, or of such kinds of personal 
 property as are capable of being taken in exe- 
 
 (-) Altrurd v. S/dnmr, .S6 Ch. 1). 145. (a) 52 L. T. 76. 
 
 (h) In this article I have attempted to digest the efl'ect of the statute 
 13 Eliz. c. 5, pa.ssed "for the avoiding of feigned, covinous, and 
 fraudulent feoffments, etc., contrived of malice, fraud, covin, collusion, 
 or guile, to delay, hinder, or defraud creditors or others," by which it 
 was enacted, that "all and every feoffment, gift, grant, alienation, 
 bargain, and conveyance of lands, tenements, hereditaments, goods, 
 chattels, or any of thcin, by writing or otherwise, and all and every 
 bond, suit, judgment, and execution to and for any intent or purpose 
 bt/ore declared and expressed, shall be deemed and taken only as
 
 VOID AGAINST CREDITORS UNDER 13 ELIZ. C. 5. 75 
 
 -cution (rZ), is (independently of the bankruptcy Art. 15. 
 law) void as against existing and future creditors 
 of the settlor if it be executed with intent to 
 defeat or delay their claims (e). 
 
 (2) Provided, nevertheless, that settlements 
 otherwise void under this article, are valid in 
 favour of persons (whether original beneficiaries 
 or their assigns) who, bond fide and without 
 notice of the intended fraud, have acquired their 
 beneficial interests by giving, or being privy to, 
 valuable consideration (/). 
 
 Considerable conflict of judicial opinion has arisen over 
 this statute, viz., whether an intent to defeat or delay 
 •creditors must be inferred as a matter of lato where the 
 reasonable and probable result of the settlement was to 
 defeat or delay, although the tribunal might be convinced 
 that, as a matter of fact, the settlor never had any such 
 intention. In Freeman v. Pope (g) the late Lord Hatherley 
 
 against that person or persons, his or their heirs, successors, executors, 
 administrators 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 disturbed, delayed or defrauded, to 
 be cleai'ly 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 bona fide to any person 
 not having at the time of such assurance any notice or knowledge of 
 such covin, fraud or collusion." 
 
 (c) Copyholds formerly not included (Maffheivsv. Feaver, 1 Cox 272), 
 but now included by effect of 1 & 2 Vict. c. 110, s. 11. 
 
 (d) Eider v. Kidder, 10 Ves. 360. As to what goods come under this 
 description, see Barrack v. McGullocl-, 3 K. & J. 110 ; Stokoe v. Cowan, 
 29 Beav. 637 ; and as to choses in action, Xorcutt v. Dodd, Cr. & Ph. 100 ; 
 and 1 & 2 Vict. c. 110. 
 
 (e) No delay short of the statutory period of limitation will bar an 
 action to set aside such a settlement, the right being legal and not 
 equitable {Ee Maddever, 27 Ch. D. 523). 
 
 (/) Georyt v. Milbanke, 9 Ves. 189 ; Dauheny v. Cocklmrn, 1 Mer. 
 638 ; and Halifax Joint Stock Bank v. GledhiU, [1891] 1 Ch. 31. And 
 where the consideration for a settlement is marriage, and the intended 
 wife knows nothing of the fraudulent intention, the settlement is good 
 qiia her and her children {Ktvan v. Cran-ford, 6 Ch. D. 29). 
 
 (g) 5 Ch. App. 540.
 
 76 DECLAEED OE EXPRESS TRUSTS. 
 
 Art. 15. distinctly affirmed that such an intent must be inferred, 
 saying: "It is estabhshed by the authorities, that, in the 
 absence of any direct proof of intention [to defraud], if a 
 person owing debts makes a settlement which subtracts 
 from the property which is the proper fund for the payment 
 of those debts, an amount without which the debts cannot 
 be paid, then, since it is the necessary consequence of the 
 settlement (supposing it effectual) that some creditors must 
 remain unpaid, it would be the duty of the judge to direct 
 the jury that they must infer the intent of the settlor to have 
 been to defeat or delay his creditors, and that the case is 
 within the statute." And Lord Justice Giffaed said : 
 " Where the settlement is voluntaiy, the intent may be 
 inferred in a variety, of ways. For instance, if, after 
 deducting the property which is the subject of the voluntary 
 settlement, sufficient available assets are not left for the 
 payment of the settlor's debts, the law infers intent^ 
 
 These dicta of Lord Hatherley and Lord Justice 
 Giffaed that "if the necessary effect of the instrument 
 was to defeat, hinder, or delay creditors, the judge or jury 
 viust as a matter of lata infer fraudulent intent," can, how- 
 ever, no longer be accepted as correct, the Court of Appeal, 
 in Ex imrte Mercer (/;), and the Privy Council in Godfrey v. 
 Poole {i), having decided that the proper principle is that, 
 "the language of the Act being, that any conveyance of 
 property is void against creditors if it is made with intent to 
 defeat, hinder, or delay creditors, the court is to decide in 
 each particular case whether, on all the circumstances, 
 it can come to the conclusion that the intention of the 
 settlor, in making the settlement, was to defeat, hinder, 
 or delay his creditors " {k). 
 
 The confusion which has arisen has doubtless been 
 caused (as was pointed out by Lord Justice Bowen in a 
 case not arising under this statute {I) ) by the fact that 
 equity judges have always had to decide questions of law^ 
 
 (/() 17 Q. 15. 1). -29(1. (i) 13 App. Cas., at p. 50.S. 
 
 (/.) Pn- KiNDKicsLKv, \'.-C., in Thompson v. Webster, 4 Drew. U3"2, 
 adopted and apprcjvcfl 1)_\' the I'rivy Council in Godfrey v. Poole, 
 siijtra. 
 
 {/) Lt Un-a V. (louhl, [IS!):?] 1 Q. 15., at p. 500.
 
 VOID AGAINST CREDITORS UNDER 13 ELIZ. C. 5. 77 
 
 and fact together. " An equity judge, when he had to deal Art. 15. 
 with a question of fraud, discussed his reasons for coming ~ 
 
 to the conclusion that there had been fraud ; and it very 
 often happened, that an equity judge decided that there 
 was fraud in a case in which gross negligence had been 
 proved. If the case had been tried with a jury, the judge 
 would have pointed out to them that gross negligence might 
 amount to evidence of fraud, if it were so gross as to be 
 incompatible with the idea of honesty ; but even gross 
 negligence, in the absence of dishonesty, did not of itself 
 amount to fraud. Cases of gross negligence in which the 
 Chancery judges decided that there had been fraud, were 
 piled up one upon another, until at last a notion came to he 
 entertained that it zuas sujficient to prove gross negligence in 
 order to establish fraud. That is not so. In all these cases 
 fraud and dishonesty ivere the proper ratio decidendi, and 
 gross negligence tvas only one of the elements which the 
 jiulge had to consider in making up his mind luhether the 
 defendant' s conduct had been dishonest." 
 
 The same view had been previously expressed by Lord 
 EsHER, M.E., in Ex parte Mercer, Be Wise {tn), where his 
 lordship said: " No doubt, in coming to a particular con- 
 clusion as to the intention in a man's mind, you should take 
 into account the necessary result of the acts which he has 
 done. I do not use the words ' necessary result ' meta- 
 physically, but in their ordinary business sense ; and, of 
 course, if there was nothing to the contrary, you would 
 come to the conclusion that the man did intend the neces- 
 sary result of his acts. But if other circumstances make 
 you believe that the man did not intend to do that which 
 you are asked to find that he did intend — to say that 
 because that was the necessary result of what he did, you 
 must find, contrary to the other evidence, that he did 
 actually intend to do it, is to ask one to find that to be a 
 fact which one really believes to be untrue in fact." Lord 
 Justice LiNDLEY in the same case added: " The language 
 which has been used in a great many cases, that a man 
 must in point of law be held to have intended the necessary 
 
 (to) 17 Q. B. D. 290.
 
 78 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 15. consequences of his own acts, is apt to mislead, by confusing 
 the boundary between law and fact — between consequences 
 which can be foreseen with those which cannot." The 
 rule, therefore, according to the more recent decisions, is 
 that of common sense, viz., that the court has to decide as 
 a fact in each case, what, on the whole evidence, was the 
 intention of the settlor in making the settlement, and is not 
 obliged to infer fraudulent intent where it did not in fact 
 exist. 
 
 Illustrations of Pakageaph (1). 
 
 Direct fraud. 1. In Tioynnes Case (n) Pierce was indebted to Twynne 
 in £400 and to C. in £200. C. brought an action for his 
 debt, and, pending the result, Pierce conveyed all his goods 
 to the value of £300, to Twynne in satisfaction of his debt ; 
 but Pierce continued in possession of them. Here the 
 court held that there was direct evidence of an intention on 
 the part of Pierce to hinder and delay C. ; and that although 
 Twynne had given valuable consideration for the goods, yet 
 he was privy to the fraud, and consequently could not avail 
 himself of the proviso. Stress was laid upon the fact that 
 Pierce was allow^ed to remain in possession of the goods, 
 although the conveyance purported to be not a mere mort- 
 gage, but an absolute alienation. Had it been a mortgage, 
 of course the mere fact of the mortgagor retaining posses- 
 sion would have been no badge of fraud, as it is one of the 
 usual incidents of a mortgage (o). The main and sub- 
 stantial point, however, which the court decided was, that 
 it was obvious, for divers reasons, that the conveyance was 
 a mere fraudulent arrangement between Twynne and 
 Pierce to shelter the latter from the just demands of his 
 creditors, and was therefore void under the statute. 
 
 Direct intoiii 2. So, again, where a director of a company was sued by 
 to avoid t}^(j company, and fearing that a judgment would be given 
 
 j'udt'mont. against him, made a voluntary assignment to his daughter 
 of all his property, it was held that the fraudulent inten- 
 tion was manifest, and that the settlement was void as 
 against the company, although they were not creditors at 
 the time, and it did not appear that there were any creditors 
 
 in) 1 Sm. L. C. 1. (o) Edwards v. Harben, 2 T. R. 587.
 
 VOID AGAINST CREDITORS UNDER 13 ELIZ. C. 5. 79- 
 
 at the time ( j;) . Even though the daughter was no party Art. 15. 
 to the fraud, yet she was not protected, because she had ~ 
 
 not given valuable consideration. 
 
 3. And so, again, in Spirrett v. Willoivs (q), the settlor 1 )irect intent 
 being solvent at the time, but having contracted a consider- fH^u^g^^ 
 able debt which would fall due in the course of a few weeks, creditors. 
 made a voluntary settlement by which he withdrew a large 
 portion of his property from the payment of debts, after 
 which he collected the rest of his assets and spent them in 
 the most reckless w^ay, thus depriving the expectant creditor 
 of the means of being paid. In that case there was clear 
 and plain evidence of an actual intention to defeat creditors, 
 and accordingly the settlement was set aside (r). 
 
 i. Again, a trader, who had for many years carried on 
 the business of a baker and had saved money, being about 
 to purchase a grocery business which he intended to carry 
 on in addition to the other, made a voluntary settlement of 
 the bulk of his property for the benefit of his wife and 
 children. He afterwards bought the grocery business and 
 carried it on for about six months, but lost money by it. 
 He then sold it for as much money as he had given for it, 
 and afterwards carried on the baker's business alone until, 
 about three years after the execution of the settlement, he 
 filed a liquidation petition, his liabilities largely exceeding 
 his assets. The debts which he owed at the date of the 
 settlement had been all paid. On these facts, it was held 
 that (independently of the question whether he was solvent 
 at the date of the settlement) the settlement was void as 
 against his creditors, on the ground that it was evidently 
 executed with the view of putting the settlor's property out 
 of their reach, in case he should fail in the speculation on 
 which he was about to enter in carrying on a new business 
 of which he knew nothing (s). 
 
 {p) Bee-se Biuer Co. v. Attwell, 7 Eq. 347. 
 
 iq) 3 De G. J. & S. 293. 
 
 (r) For examples of inferred fraudulent intent, see also Freeman v. 
 Pope, 5 Ch. App. 540 ; Smith v. Cherri/l, 4 Eq. 390 ; Taylor v. Coenen, 
 1 Ch. D. 636; Cros<iley v. Elsioorthy, 12 Eq. 159; and Adames v. 
 Haiku, 6 Eq. 468. 
 
 (s) Ex parte Bussell, Be Butterworth, 19 Ch. D. 588 ; and see also 
 Ware v. Gardner, 7 Eq. 317.
 
 so 
 
 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 15. 
 
 Fraudulent 
 intent not 
 now irre- 
 buttabl3^ 
 presumed 
 from effect. 
 
 5. And so generally " a man is not entitled to go into a 
 hazardous business, and immediately before doing so, to 
 settle all his property voluntarily ; the object being, ' If I 
 succeed in business, I make a fortune for myself. If I fail, 
 I leave my creditors unpaid. They ^Yill bear the loss.' That 
 is the very thing which the Statute of Elizabeth was meant 
 to prevent " (t). 
 
 6. However, the above illustrations must be read with 
 this proviso, that even where the circumstances, if unex- 
 plained, would give rise to the inference of intention to 
 defraud, yet, if the defendant's evidence is sufficient to 
 convince the court that he had, in fact, no such intention, the 
 settlement will not be disturbed. In short, the reader is 
 emphatically warned that none of the reported cases of 
 implied fraudulent intent can be now relied upon as autho- 
 rities, the question of intent being no longer regarded as a 
 question of law, but as purely one of fact in each case. 
 
 7. This was very weU exemplified in Ex parte Mercer, Re 
 Wise {u). The facts of that case were as follows : A master 
 mariner was married at Hong-Kong on May 31st, 1881. In 
 the following August an action for breach of promise of 
 marriage was commenced against him, and the writ served 
 upon him at Hong-Kong on October the 8th. By the same 
 mail he heard that a legacy of £500 had become payable to 
 him. On October 17th he executed a post-nuptial settle- 
 ment of the £500 in favour of his wife and issue, being then 
 indebted to no one. In July, 1882, judgment in the breach 
 of promise action went against him for £500; and in 
 November, 1884, he was adjudicated bankrupt. It was 
 thereupon attempted to set aside the post-nuptial settle- 
 ment under Lord H.\therley's dictum in Freeman v. Pope. 
 The bankrupt, however, swore that when he made the 
 settlement lie was in no way influenced by the action 
 having been commenced against him, which he thought 
 would come to nothing. On this state of facts the Divisional 
 
 (/) Per Jessel, M.R. , Ex parte, RuHxell, svpra : following Mackay v. 
 I)(iii<il(v<, 14 Va{. 106. An uncon.seiou.s paraphrase of Shakespear, "If, 
 like; an ill venture, it come unluckily home, I break, and you, my gentle 
 creditorH, lose."' 
 
 (n) 17 (,». I'>. I). -iOO ; Hcc also Kad v. liiliu, 14 E(|. 190.
 
 VOID AGAINST CREDITORS UNDER 13 ELIZ. C. 5. 81 
 
 Court and the Court of Appeal declined to set aside the Art. 15. 
 settlement, on the ground that there was not sufficient ~ 
 
 evidence to warrant a judge or jury in finding that the 
 settlement was intended to delay, hinder, or defraud 
 creditors. Grantham, J., said: "When learned judges 
 have said that if the necessary result of a settlement is to 
 hinder creditors, it must be taken to have been executed 
 with that intent, this observation must be taken as applied 
 to the character of the particular case in which it was made. 
 In all the cases which have been referred to, the settlor had 
 considerable debts or liabilities, and in none of them was 
 there the same reason for making the settlement which 
 existed in the present case, viz., the wish to settle on the 
 wife of the settlor, property to which he had become un- 
 expectedly entitled after his marriage ; and it cannot be 
 said that, with the exception of the writ having been 
 served upon him, there was any such inducement for him 
 to make the settlement as there was in all the other cases 
 which have been cited " (.i-). 
 
 8. Most of the above examples have been cases of Marriage 
 
 voluntary settlements ; but where there is an express inten- ^ontahiin" 
 
 tion to defeat creditors, and all ])arties to the consideration gift over on 
 
 are varties to that intention, the fact that it was a settlement settlor's 
 
 ■'■ ,..,,, bankruptcj' 
 
 based on value will not render it valid agamst the settlor s is fraudulent. 
 
 creditors. Thus, where one, by marriage settlement, settles 
 
 his own property on himself until bankruptcy, and then 
 
 over, it has been said that it is so clearly intended to defraud 
 
 creditors that the wife must be assumed to have been party 
 
 to that intention, and the trust over on bankruptcy will 
 
 therefore, as against the general body of his creditors, be 
 
 void {ij). The whole settlement will of course not be void, 
 
 but only the gift over on bankruptcy (z). Moreover, the 
 
 principle only applies to property of the husband, and not to 
 
 property of the wife or of a third party (z). Speaking 
 
 {x) And see also observations of Lord Esher, M.R., and Lindley, 
 L.J., in the same case, quoted supra, p. 77. 
 
 {y) Hi(jginhottom v. Holme, 19 Ves. 88 ; Ex parte Hodgson, ib., 208 ; 
 Re Pear.son, 3 Ch. D. 807 ; and see also Ex parte Bolland, Re Clint, 
 17 Eq. 115, for another instance of a settlement clearly fraudulent. 
 
 (:;) Mackintosh v. Porjose, [1895] I Ch. 505.
 
 82 DECLAEED OE EXPEESS TRUSTS. 
 
 Art. 15. broadly, a marriage settlement can only be upset against 
 the wife where she has been a party to the fraud (a). 
 
 Distinction g^ rjij^gg^ ^^^ ^^ ^^ ^^le invalidity of trusts to take effect 
 
 Ijetween gilts ^ ' -^ 
 
 over on bank- after the settlor's bankruptcy, must be carefully distinguished 
 
 ruptcy and f^om that of Be Detmolcl, Detmold v. Detmold (b) . There the 
 
 silts over on . . 
 
 alienation or settlor, On his marriage, settled property on himself until 
 
 exeration. bankruptcy, or until he should "assign, charge, or incuviher 
 the income, or should do or suffer something loherehy the 
 same cr part thereof would, through his act or default, or by 
 oi)eration of laio, become vested in or payable to some other 
 2)eyson," in which event the income was to become payable 
 to the wife. A single creditor of the husband obtained 
 judgment against him, and a receiver of the settled income 
 was appointed by way of equitable execution. The settlor 
 afterwards became bankrupt. It was, however, held, by 
 NoBTH, J., that although, if the husband had first become 
 bankrupt, the trust over in favour of the wife would have been 
 invalid against the general body of creditors under the cases 
 above cited, yet it was valid as against a particular judgment 
 creditor, and that having once taken effect, the subsequent 
 bankruptcy of the settlor could not divest the estate, which 
 had vested in the wife. The learned judge distinguished 
 the case from those above cited, on the ground that a gift 
 over on alienation by a settlor is valid, and that the effect of 
 the receivership order was involuntary alienation, taking 
 place before the commencement of the bankruptcy. The 
 distinction, however, is very fine, and it is, with unfeigned 
 respect, suggested, that if (as seems clear), a gift over on 
 bankruptcy is void against creditors, because it evidences an 
 intention to defeat or delay them, so by parity of reasoning, 
 a gift over on the settlor charging his interest (i.e., to secure 
 a debt), or suffering something [i.e., an execution), whereby 
 the same would, by operation of law, become payable to 
 another, equally evidences a dishonest intent to escape from 
 his just lial)ilitics. Moreover, surely the gift over on bank- 
 ruptcy of itself proved an intent to defeat or delay creditors, 
 and, the intent being proved, the statute avoids the settle- 
 ment, not only as against the general body of creditors, but as 
 
 {«) VarwU V. Sl<n,]m<n,, ] C. & JO. 1.13. {/;) 40 Ch. D. r>85.
 
 VOID AGAINST CREDITORS UNDER 13 ELIZ. C. 5. 83 
 
 against judgment creditors. Of course, if the wife had been Art. 15. 
 a bond fide purchaser for vahie tvithout notice, no question 
 could have arisen; but under Higginbottom v. Holme (c), 
 and that class of cases, the very form of the settlement was 
 sufficient to fix her with notice of its character. 
 
 10. Where a person married his mistress, and with the Fraudulent 
 intention of defeating his creditors, and with her knowledge marriage 
 of that intention, settled all or a considerable part of his ^here wife 
 property upon her, the marriage consideration did not render privy to 
 the settlement valid as against the settlor's creditors ; for '^^^^^ ' 
 such a marriage was a mere cloak for the fraud, and the 
 wife was yarticcps criminis (d). 
 
 Illusteation of Parageapb* (2). 
 
 1. But, on the other hand, where a trust based on value Fraudulent 
 
 would, as between the settlor and his creditors, be clearlv ^^ttieinent 
 
 • T • -n 1 -It ' i^ipheld in 
 
 void, yet it will be supported as between the creditors and favour of 
 
 persons parties to the consideration, where such parties are ^'ondjide 
 not privy to the settlor's fraudulent intentions. Thus, in valuable 
 Kevan v. Crmvford (e), the facts were, that C. (who carried considera- 
 on the business of a flax spinner at S. Mills, in partnership ^°'^' 
 with E.) by a settlement made in contemplation of his 
 marriage, after reciting that he was indebted to his intended 
 wife in a sum of £20,000, covenanted to pay that sum to 
 the trustees, upon trust that as soon as he should become 
 owner in fee simple of S. Mills (which he had agreed to 
 purchase) they should advance the £20,000 to him on mort- 
 gage of those mills. It was further declared that the 
 trustees should stand possessed of the £20,000 when so 
 invested, upon trust to pay the income to the intended wife 
 for life for her separate use, with remainder to the husband 
 during his life or until he should become bankrupt, with 
 remainder to the children of the marriage. The recital that 
 C was indebted to the intended wife in £20,000, was quite 
 
 (f) 19 Ves. 88. 
 
 {d) Buhner v. Hunter, 8 Eq. 46 ; and see Colomhine v. Penhall, 
 1 Rm. & CI. 228. 
 
 (e) 6 Ch. D. 29 ; and see Ex parte Home, 54 L. T. 301, and Parnell v. 
 Sieadman, 1 C. & E. 153. The valuable consideration must be sub- 
 stantial, however, and not merely technical ; see Be Bidler, 22 Ch. D. 
 74. But cf. Harris v. Tuhhs, 42 Ch. D. 97.
 
 84 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 15. false, and C. was at the time of the marriage in insolvent 
 circumstances ; but the intended ^Tife had no knowledge of 
 his insolvent circumstances, and understood nothing about 
 the recitals in the deed. The settlor subsequently purchased 
 the S. Mills estate, and mortgaged it to the trustees for 
 securing the £20,000, but no money actually passed. The 
 settlor afterwards became bankrupt, and the creditors 
 claimed that the settlement was void as against them. It 
 was, however, held that, notwithstanding the falsity of the 
 recitals, the settlement and the mortgage deed consequent 
 thereon were valid so far as concerned the interests of the 
 wife and children ; for the former was no party to the 
 settlor's fraud, and gave valuable consideration Cviz., 
 marriage) for the settlement, and the latter were parties 
 privy to that consideration. 
 
 Onus of proof 2. Where a trust, based on value,^ is sought to be in- 
 ficiaries' validated as against a party privy to the consideration, or 
 
 knowledge, where a voluntary trust is sought to be invalidated as 
 against a purchaser for value from a cestui que trust, it must- 
 be conclusively shown that such party was privy and party 
 to the fraudulent intent. For, although he may have known 
 that the efect of the assignment would be to hinder or 
 defeat the assignor's creditors, or expectant creditors, yet 
 if the transaction was a bond fide purchase, and not a mere 
 collusive arrangement between the parties with the intention 
 of causing such hindrance or delay, it will be upheld (/). 
 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 (g). 
 
 {/) See DnrrWe v. Terry, 6 H. & N. 807 ; Hah v. Saloon Omvihu-^ 
 Co., 4 Dr. 492 ; judgment in Unrmaay.Richard-i, 10 Hare, 89; Alton v. 
 J/arrlson, 4 Ch. App. (i2'2 ; MvhVtton v. Pollock, 2 Ch. D. 104 ; Boldero 
 V. L. d- W. DMCOtinl Co., 5 Ex. D. 47 ; but see Spencer v. Slater, 
 4 Q. B. D. 104. 
 
 («/) Halifax Joint Stock Bank v. (lltdhUl, [1891] 1 Cli. 31.
 
 WHEN VOID UNDER BANKRUPTCY ACT. 85 
 
 A vf 1 fi 
 
 Art. 16. — When void uncle?' BanJn'uptcjj Act. _" 
 
 (1) Even where a settlement or a gift (Ji) is 
 valid as against creditors under the last preceding 
 article, yet (/) it w^ill be void as against the 
 settlor's trustee in bankruptcy or liquidation (A) 
 where voluntary, or made in bad faith to the 
 knowledge of the beneficiaries (Z), if : — 
 
 (a) the settlor becomes bankrupt or liquidates 
 
 his affairs within two years ; or 
 
 (b) the settlor becomes bankrupt or liquidates 
 
 his affairs after two but within ten years ; 
 unless it can be shown that he was solvent 
 at the date of the settlement without the 
 aid of the property comprised in it, and 
 that his estate or interest in such property 
 passed to the trustee of the settlement on 
 the execution thereof. 
 
 (2) A mere covenant or contract made in 
 consideration of marriage, for the future settle- 
 ment upon the settlor's wife or children, of 
 any specific and ear-marked {in) money or 
 property wherein he had not at the date of 
 his marriage any estate or interest, vested or 
 contingent (/?.), (not being money or property 
 
 (h) See Re Tankard, [1899] 2 Q. B. 57. But premiums paid in respect 
 of settled policies under a voluntary settlement, are not repayable : 
 see Ex parte Whinney, [1900] 2 Q. B. 710. 
 
 (i) These provisions were limited to traders by the Bankruptcy Act, 
 1869, but are extended to the public generally by the Act of 1883, 
 which is not retrospective (Ex parte Todd, 19 Q. B. D. 186). 
 
 (k) Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 47 (1). The section 
 does not apply to the winding up of deceased insolvent settlor's estates 
 (Re Gould, 19 Q. B. D. 92). 
 
 (I) Mackintosh v. Pogose, [1895] 1 Ch. 505. 
 
 (m) Ex parte Bishop, Re Tonnies, 8 Ch. App. 718. 
 
 (n) See Re Aiidrews, 7 Ch. D. 635. A formal transfer of future- 
 acquired property is, in reality, nothing more than a contract to assign 
 it when it comes into existence, and would, it is conceived, be a con- 
 tract within the meaning of this rule. See Collyer v. Isaccc-s, 19 Ch. D. 
 342 ; and Joseph v. Li/ons, 15 Q. B. D. 280.
 
 86 DECLAKED OR EXPRESS TRUSTS. 
 
 Art. 16. of or in right of his wife), is void as against- 
 the settlor's trustee in bankruptcy, unless such 
 property or money has been actually trans- 
 ferred or paid pursuant to such contract or 
 covenant (o). 
 
 (3) This article doeg not affect a settlement of 
 property accrued to the settlor since marriage 
 in right of his wife, nor the trusts of a policy of 
 assurance effected in favour of a wafe or children 
 under sect. 11 of the Married AVomen's Property 
 Act, 1882 (45 & 46 Vict. c. 75). 
 
 (4) This article does not affect the title of 
 bond fide purchasers for value from beneficiaries 
 without notice (j9) ; nor does it put the trustee in 
 bankruptcy in the place of the beneficiaries so as 
 to give him priority over subsequent incum- 
 brances created by the settlor (r/). 
 
 Illustrations of Paeagraph (1). 
 
 years. 
 
 Bankniptcy 1. Thus, a person made a voluntary settlement of an 
 within two estate which was subject to a mortgage, and covenanted 
 with the trustees that he would pay the interest on the 
 mortgage, and, when required, would pay oft' the principal. 
 It subsequently, and within two years, turned out that his 
 assets (exclusive of the estate in question) were sufficient 
 to pay his debts other than the mortgage debt, but not 
 sufficient to pay both, and he became bankrupt. It was 
 held, that whether the settlement was fraudulent or not 
 
 (o) JJanknijitcy Act, 1S8.S (4(i & 47 Vict. c. 52), s. 47 (2). 
 
 (p) ]{< Cdvli r mill Ktiiiltrdhic, (1<S97| 1 Cii. 77(i, overruling Ne Britjgs 
 nvfl. Spicii\ I IS'Jl I 2 Cli. .'Wl, and following lie Brail, Ex parte Norton, 
 |1.S!»:{)2(^ 15. .•{HI ; He. Vavxillart, Ex jiaric Uroini, ih. ,S77. 
 
 (7) SaiKjiiliiiUi V. StnrkcifH Hinik'ui'i Co., |1,S'.).')] 1 ('li. 17(i; and Re 
 Faniham', [181)5] 2 Ch. 73(i.
 
 WHEN VOID UNDER BANKRUPTCY ACT. 87 
 
 within tlie 13tli Elizabeth it was not material to inquire, Art. 16. 
 but that it cleariy fell within the provisions of the ' 
 
 Bankruptcy Act, and was therefore void('r). 
 
 2. Upon an application to set aside a post-nuptial settle- Bankruptcy 
 ment under clause (b) of this article, it appeared that, by ^^^^'^^^ ^^^^ 
 the settlement, a life interest was reserved to the settlor 
 himself, and that, if this life interest were taken into 
 account, he was able to pay his debts at the date of the 
 settlement ; but that if it was not taken into account, he 
 was insolvent. The court held that the settlor's life interest 
 ought to be taken into account in estimating his solvency, 
 and that the settlement was valid as against his trustee in 
 bankruptcy (s). 
 
 3. A settlement made by a trustee for making good a Settlement 
 reach of 
 ader thi 
 faith (w). 
 
 breach of trust is not voluntary (t), and cannot be set aside *'^ ra^^^ 
 under this Act unless the beneficiaries have acted in bad of trust. 
 
 Illusteations of Paragraph (2). 
 
 1. Clause 2 of the above article only applies to specific or Covenants to 
 ear-marked property ; and, therefore, where a person by settle future- 
 his marriage settlement covenants that he will pay a sum property are 
 of money to the trustees, such a covenant is perfectly valid, ttestroyed by 
 The intention of the Act is to prevent settlements of property i^J^^ 2^^ ''^ ' 
 expected to accrue at a future time, in which the settlor has covenants to 
 at the date of the settlement no present interest. As ofnlonev""^ 
 Mellish, L.J., put it in Ex j^cirte Bishop, Be Tonnies{x) : 
 " The object of the legislature was to provide that specific 
 money or property which, but for the section, would have 
 gone to the trustees [of the settlement] exclusively, should 
 be divided among the creditors [of the settlor] . A covenant 
 to settle such money or property would, in equity, have 
 bound it when it came into actual possession, and the 
 intention was, that if the covenantor had no interest at the 
 
 (r) Ex parte Huxtahle, Be Conibeer, 2 Ch. D. 54. 
 (.s) Be Lowndes, 18 Q. B. D. 677. 
 (/■) Official Beceiver v. Jackson, [1899] A. C. 419. 
 (k) Mackintosh v. Pogose, [1895] 1 Ch. 505. 
 (x) 8 Ch. App. 721.
 
 88 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 16. time, it should go to the creditors, and not to the trustees, 
 of the settlement. If this had been a covenant that in case 
 any property was left to the covenantor by his father or any 
 other person, he would settle it, and the covenantor had no 
 interest in it at the time, the covenant would be void against 
 the trustee in bankruptcy. The word ' money ' refers to 
 something of the same nature as ' property,' namely, some- 
 thing specific, and does not apply to that which is a mere 
 debt due from the settlor." Whether, in such cases, 
 property coming to the settlor after his discharge, would 
 remain bound by the covenant is not free from doubt. The 
 section in question only avoids them as against the trustee 
 in bankruptcy, who would, of course, have no claim to 
 property which only vested in the bankrupt after his dis- 
 charge. It would seem, however, that the bankruptcy 
 would, ipso facto, cancel all the debtor's contracts, including 
 such an one as this (?/). It must also be pointed out that 
 documents which purport to assign after-acquired property, 
 are in reality only contracts to do so when the property 
 comes into existence; for "A man cannot in equity, any 
 more than at law, assign what has no existence " {z). 
 
 Illustrations of Paeageaph (3). 
 
 fSettlement 1. A wife who was married in 1S83, and was then pos- 
 
 ac/uiretl'^^^ sessed of separate property, allowed that property after the 
 through wife marriage to pass into her husband's hands, but not as a 
 not (lestroyed g^f^j jjqj, g^g g^ Jq^j^ fQj. ^jjg purposes of his trade. The 
 
 niptcv. husband having applied part of this money to his own use. 
 
 Settled the residue of it, together with other property of his 
 own, upon trusts under which he took a life interest, with 
 a proviso for the cesser thereof in the event of his bank- 
 ruptcy. The wife had no notice of any fraudulent intention 
 on his part. In an action by the husband's trustee in 
 bankruptcy to set aside the settlement it was held that it 
 was not voluntary, and was (/?<a the wife not executed in bad 
 faith, and that to the extent of the wife's property received 
 
 (y) Collycrx. ImacH, 19 Cli. D. :UJ. 
 
 (z) CoUyir v. laaurn, mtpra ; Jo^ipli v. Lijon-i, 15 Q. B. D. 280.
 
 WHEN VOID AGAINST SUBSEQUENT PUECHASERS. 89 
 
 ,by the husband, the proviso for cesser of his life interest Art. 16. 
 was good, and that s. 3 of the Married Women's Property 
 Act, 1882 (45 & 46 Vict. c. 75), did not apply (a). 
 
 Aet. 17. — When void as against subsequent 
 Purchasers from Settlor. 
 
 (1) A settlement of lands is void, as against 
 subsequent hond fide purchasers for value from 
 the settlor, if made with intent to defeat such 
 purchasers (b) ; or if it is revocable (c). 
 
 (2) Provided always, that this article in nowise 
 prejudicially affects hond fide purchasers for 
 value (rZ), whether beneficiaries under a trust 
 leased on value but fraudulent in inception, or 
 assigns of voluntary beneficiaries (e). 
 
 The law on this subject, the foundation of which is the Law on the 
 statute 27 Eliz. c. 4, has to a large extent been revolutionised ^^^jjj^ect before 
 by the Voluntary Conveyances Act, 1893 (/). Although 
 the Statute of Elizabeth does not in any way speak of 
 voluntary conveyances, it was for nearly 300 years held, in 
 a long line of decisions, that every voluntary conveyance or 
 settlement was impliedly fraudulent within that statute as 
 against subsequent purchasers, even although no actual 
 intention to defraud existed at the date of the settlement 
 impeached {g). This was purely judge-made law, and 
 
 (a) Mackintosh v. Pogose, [1895] 1 Ch. 505. 
 
 (6) 27 Eliz. c. 4. Tlie word "purchasers" includes mortgagees and 
 lessees {Dolphin v. Aylward, 4 H. L. 486 ; Doe v. Mores, 2 W. Bl. 
 1019). As to copyholds, see Doe v. BottritU, 5 B. & Ad. 131 ; Curriev. 
 Nind, 1 M. & C. 17 ; and as to leaseholds, last note to Saunders v. 
 Dehen, 2 Vern. 272. 
 
 (c) 27 Eliz. c. 4, s. 4 in Revised Statutes ; and see Standon v. Bullock, 
 cit. 3 Rep. 82 b ; Lavender v. Blackston, 3 Keb. 526 ; Jenkins v. Keymis, 
 1 Lev. 150. 
 
 (d) 27 Eliz. c. 4, s. 4. 
 
 (e) Prodgers v. Langham, Keb. 486. (/) 56 & 57 Vict. c. 21. 
 (g) Doe V. Manning, 9 East, 57 ; Trowell v. Slieuton, 8 Ch. D. 318.
 
 90 DECLARED OE EXPRESS TRUSTS. 
 
 Art. 17. rested on the theory that, by selhng the property afterwards 
 for vahiable consideration, the settlor so entirely repudiated 
 the former voluntary settlement, and showed his intention 
 to sell, as to raise against him and the beneficiaries a con- 
 clusive presumption that such intention existed ivhen lie 
 made the voluntary settlement, and consequently that the 
 latter was made with intent to defeat the subsequent 
 purchaser (/;). This principle appears to be somewhat far- 
 fetched, and of late years was frequently alluded to with 
 disapprobation by learned judges, who nevertheless inti- 
 mated that nothing less than legislative interference could 
 alter a rule which had been uniformly acted on for so 
 long a period. At length Parliament intervened, and by 
 the above-mentioned Act of 1893, it is enacted that — 
 
 " No voluntary conveyance of any lands, tenements, or heredita- 
 ments, whether made before or after the jjassing of this Act, if in 
 fact made bona fide and without any fraudulent intent, shall here- 
 after be deemed fraudulent or covinous within the meaning of the 
 Act twenty-seven Elizabeth, chapter four, by reason of any subse- 
 quent purchase for value, or be defeated under any of the provisions 
 of the said Act by a conveyance made upon any such purchase, any 
 rule of law notwithstanding." 
 
 The Act does not extend to cases where the subsequent 
 purchase has been made before June 29tli, 1893 ; and, as 
 many titles depend upon the validity of such subsequent pur- 
 chases made before that date, it seems necessary to give some 
 examples of the old law. It is also necessary to remind 
 the reader that although, by reason of this statute, voluntary 
 conveyances will no longer be i^jso facto void as against 
 subsequent purchasers for value, yet, under the general 
 doctrines of equity, a voluntary conveyance may be post- 
 poned to a subsequent purchaser for value without notice if 
 the latter should get a conveyance of the legal estate, or if 
 the beneficiaries under the voluntary settlement have been 
 guilty of negligence, and the settlement did not vest the 
 legal estate in a trustee for them (/). 
 
 (h) /Vr (Jampiskm,, C.J., Doc V. Rusham, 17 Q. 13. 723. 
 
 (i) See r/arfi V. 6Vt(T, If) Cli. 1). (i.'i!) ; />V/r/;/v v. ,/ow.s', 10 Eq. 92; 
 Norlhi III doiuitiiK, lie. AnnHi'iwci'. Sorii'ly \. W/iip/i, 2() (^h. D. 482; and 
 judgiiKiit of Kkki;\vi(ii, ,]., in /fairis v. Tiilih.s, 42 Cli. U. 79.
 
 "WHEN VOID AGAINST SUBSEQUENT PURCHASERS. 91 
 
 Art. 17. 
 
 Illustrations 
 
 1. Instances of settlements framed with the express Express 
 
 intent t 
 defraud 
 
 intention of defrauding subsequent purchasers are rare ; "^tent to 
 
 but if A. and B. were to conspire together, that A. should 
 sell his lands to B., and that A. should retain the title 
 deeds in order to enable him to sell the land over again to 
 C, the conveyance to B. would be void under the statute as 
 against C. 
 
 2. So again, where there was, under a marriage settle- Power of 
 ment, a power reserved to the settlor to grant a long lease ^^"^^^^ ^°"- 
 with or ivithout rent, it was held that that was practically a 
 
 power of revocation ^;7'o tanto, and that a subsequent mort- 
 gagee of the settlor was entitled to the property for the 
 period during which a lease could have been granted {h). 
 
 3. An excellent example of the old law is afforded by the Examples of 
 case of Trotoell v. Shenton [I). There a voluntary settlement Jl,' jjf^^g ^""'^ 
 of houses was made, and some few years afterwards the iS93. 
 settlor agreed to sell three of the houses to a purchaser. 
 
 In an action by the purchaser for specific performance of 
 this agreement, it was held that the settlement was void as 
 against him. It must, however, be pointed out that, as the 
 invalidity of voluntary deeds as against subsequent pur- 
 chasers depended entirely on an original intention presumed 
 from the fact of the settlor's subsequent attempt to sell, the 
 doctrine only applied when the settlor himself subsequently 
 sold, and not where the subsequent vendor was his heir, or 
 a second voluntary grantee of the settlor (772.). 
 
 4. However, even under the old law a very small con- Small con- 
 sideration would suffice to remove a bond fide settlement sideration 
 
 „ , was sutncient 
 
 from the category of voluntary settlements lor the purposes to save the 
 
 of the Act of Elizabeth ; far less than will suffice to support settlement. 
 
 a settlement made by an insolvent as against his creditors (ji). 
 
 (k) Lavender v. Blaclcston, 3 Keb. 526. 
 
 (I) 8 Ch. D. 318. 
 
 (m) Pe?- Campbell, C.J., Doe v. liusham, siqira ; and see Parker v. 
 Carter 4 Hare 409. 
 
 {n) See Re Ridler, 22 Ch. D. 74 ; Hamilton v. Molloy, 5 L. R, Ir. 339 ; 
 Rasher v. Williams, 20 Eq. 210 ; Re Hillman, 10 Ch. D. 622. But see 
 Harris y. Titbhs, 42 Ch. D. 79.
 
 m 
 
 DECLAEED OE EXPEESS TEUSTS. 
 
 Art. 17. Thus it was held, in Price v. Jenkins (o), that a settlement 
 of leaseholds to which liability to pay rent and perform 
 covenants was attached, was, from the very nature of the 
 property, based on value ; for the beneficiaries thereby took 
 upon themselves the primary discharge of those liabilities. 
 This decision has no application, however, where leaseholds 
 are settled by way of sub-demise, as no omts is thereby 
 imposed on the trustees (j)). 
 
 Mutual pro- 
 mises good 
 -considera- 
 tion. 
 
 5. Similarly, where there were mutual promises, each was 
 considered to be a valuable consideration for the other. 
 Thus it was settled, that if husband and wife, each of tliem 
 having interests, no matter how much, or of what degree or 
 what quality, came to an agreement which was afterwards 
 embodied in a settlement, that was a bargain between hus- 
 band and wife, which was not a transaction without valuable 
 consideration (g). But where property was devised to the 
 wife for her scixtratc use, the husband had no estate or 
 interest in it ; and, consequently, if it were settled by the 
 husband and wife, such a settlement was not considered to 
 be based on value, inasmuch as the husband had no rights 
 to modify (r). And the same principle would of course apply 
 to property belonging to a married woman under the Married 
 Women's Property Act, 1882 (45 & 46 Vict. c. 75). 
 
 Under old 
 law notice of 
 the settle- 
 ment by 
 subseijuent 
 pui-chaser 
 was imma- 
 terial. 
 
 6. Under the old law it was repeatedly held (although 
 modern judges expressed strong disapproval of it), that 
 knowledge of the existence of a voluntary settlement by a 
 subsequent purchaser did not deprive him of the statutory 
 priority (s). However, the voluntary settlement was not 
 cancelled unless the subsequent sale was a real bond fide 
 alienation. Thus, where the consideration for the sub- 
 sequent purchase was grossly inadequate, the sale might be 
 
 (o) 5 Ch. D. 619. 
 
 (p ) Shurmir v. Sedgwick, 24 Ch. D. 597. 
 
 (7) Ttu»duJt V. Braithwaite, 4 Ch. D. 90 ; affirmed, 5 Ch. D. 630 ; 
 Re FoHter and Lister, 6 Ch. D. 87 ; and Schrieber v. Dinkd, 54 L. J. Ch. 
 241. 
 
 (r) Sfmrmer v. Sr^df/inrk, supra. 
 
 (•<) Doe V. Mannimj, 9 East, 59.
 
 WHEN VOID AGAINST SUBSEQUENT PUECHASERS. 93 
 
 impeached by the voluntary beneficiaries, on the ground Art. 17. 
 that it was on the face of it a coHusive arrangement between 
 the settlor and the so-called purchaser for the purpose of 
 relieving the former from the settlement (t). 
 
 7. The settlement was, however, void only so far as was Settlement 
 necessary to give effect to the subsequent transaction. For ""'} ^'"Ji'i 
 instance, in the case of property settled by a voluntary 
 settlement, and subsequently mortgaged, the beneficiaries 
 under the voluntary trust were entitled, subject to the mort- 
 gage; and if unsettled estates were included in the mortgage, 
 the beneficiaries were entitled to throw the mortgage on to 
 the unsettled estates, if they were sufficient to answer it (w). 
 
 (t) Doe V. Botttledge, Cowp. 705 ; Metcalfe v. Pidverloft, 1 V. & B. 
 184. 
 
 («) Hales V. Cox, 32 Beav. 118.
 
 ( 94 ) 
 CHAPTER IV. 
 
 THE CONSTRUCTION OF DECLARED TRUSTS. 
 
 ApiT. 18. — Executed Trusts construed Strictly, 
 and Executory Liberally. 
 
 (1) An exec-uted trust is one in which the 
 limitations of the estate of the trustee and the 
 beneficiaries are perfected and declared by the 
 settlor (a). In the construction of executed 
 trusts, technical terms are construed in their 
 legal and technical sense (b). 
 
 (2) An executory trust is either — . 
 
 (a) an agreement or covenant for the sub- 
 
 sequent execution of a trust instru- 
 ment ; or 
 
 (b) a direction or declaration (usually in a 
 
 will) giving instructions or short heads 
 from which the trustee is subsequently 
 to model a formal trust instrument (c). 
 
 In the construction of executory trusts, the 
 court is not confined to the language used by 
 
 (a) See Stanley v. Lennard, 1 Eden, 95. 
 
 (//) Wrii/ht V. Pearnon. 1 Eden, 125 ; Aiixte.n v. Taylor, ih. 367 ; 
 Bn/i/ije-i V. Bri/dffex, 3 Ves. 125; Ju-roiae v. Duke of Xorthumber- 
 laml, 1 .T. & W. 571 ; and see Re Whislon, Lovett v. Willia7)ison, [1894] 
 1 Cli. oni. 
 
 (r) See Aiii/fii'v. Taylor, 1 Eden, 3G6 ; Lord Ghnorchy v. Bof^ville, 
 Ffir. .S ; and StmiJiy v. Luninrd, stt)ir<t : and see 7>e?- Cairns, L.C, in 
 JSackville Wc-U v. Jlolmadalc, 4 H. L. 543.
 
 EXECUTED TRUSTS CONSTRUED STRICTLY, ETC. 95 
 
 the settlor. And where that language is im- Art. 18. 
 proper or informal (cQ , or would create an illegal 
 trust (e), or would otherwise defeat the settlor's 
 intentions (as gathered from the motives which 
 led to 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 not direct an executed settlement according 
 to the strict meaning of the words used, but will 
 order it to be made in a proper and legal manner 
 so as best may answer the intent of the 
 parties (g). 
 
 Illustrations. 
 
 1. A father conveys freeholds to trustees, upon certain Instances of 
 
 trusts in favour of his dauc;hters, and also covenants to executed and 
 
 1 11-11 executory 
 
 surrender copyholds to the same trustees, to be held by trusts. 
 
 them on similar trusts. Here the trust of the freeholds is 
 
 an executed trust ; for the estates of the trustee and of the 
 
 beneficiaries are perfect, and require nothing more to be 
 
 done. The trust of the copyholds, on the other hand, is an 
 
 executory trust ; for something remains to be done in order 
 
 to perfect the settlement, viz., that the property should be 
 
 legally vested in the trustees. 
 
 2. So, where a testator by will gives property to trustees, 
 in trust to cause it to he settled on his daughter in strict 
 settlement, that is an executory trust ; and so are agree- 
 ments for settlements, such as marriage articles. 
 
 3. If an estate is vested in trustees and their heirs, in Rule 
 
 Shdie 
 when 
 applied. 
 
 trust for A. for life without impeachment of w^aste, with ^hdley\Case, 
 
 when 
 
 (d) See Earl of Stamford v. Sir John Hobart, 3 Br. P. C. Tarl. ed. 
 31—33. 
 
 (ft) Humherston v. Himiherston, 1 P. W. 332. 
 
 ( f) See per Lord Chelmsford in Sackville West v. Holmesdale, 
 4 H. L. 543. 
 
 ((/) Farl of Stamford v. Sir John Hobart, supra ; and see Cogan v. 
 Duffield, 2 Ch. I). 44.
 
 96 DECLARED OE EXPRESS TRUSTS. 
 
 Art. 18. remainder to trustees to preserve contingent remainders^ 
 with remainder in trust for the heirs of A.'s body, the trust 
 being an executed trust, A. (according to the rule in Shelley's 
 Case, which is a rule oflcnv and not merely of interpretation) 
 will be held to take an estate tail (li). Of course, where 
 the doctrine could not apply in law (owing to the life estate 
 being equitable and the remainder legal, or vice versa), the 
 rule will not apply in equity (/) ; nor where the word " heir " 
 is used in the sense of loersona designata {k) ; as, for example,^ 
 where the ultimate limitation is "to the person who may 
 then be the heir of A." 
 
 i. On the other hand, in the leading case of Lord 
 GlenoTchy v. Bosville (/), the settlor devised real estate ta 
 trustees upon trust, upon the happening of the marriage 
 of his grand-daughter, to convey the estate to the use of her 
 for life, with remainder to the use of her husband for life, 
 with remainder to the issue of her body, with remainders 
 over. It was held, that though the grand-daughter would 
 have taken an estate tail had it been an executed trust, yet 
 as the trust was executory, and as the testator's intention 
 was to provide for the children of the marriage, that inten- 
 tion 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. 
 
 5. And so in marriage articles, a covenant to settle estates- 
 to the use of the husband for life, with remainder to the 
 ■wife for life, 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 (m) ; for it is not to 
 
 (/() Wri'jii' V. Pearscm, 1 Eden, 119 ; Aiisten v. Taylor, ih. 361 ; Jonesv. 
 Mor<iftii, i Hio. C. C. "206 ; Jervoite v. Duke of Northmnherland, 1 J. & 
 W. 55!). 
 
 (i) Colli(r V. M'/iCuii, 34 Be.av. 4-26. 
 
 (k) G'rfures v. Swipson, Id .Tur. (n.s.) 609. 
 
 [l] 1 W. & T. L. C. 1. 
 
 {vi) Treror v. Trtror, I I'. & ^^'. 622; Streatfdd v. Streatfield, 
 1 W. & T. L. C. .S33 ; Jomt v. L<ui</toii, 1 Eq. C. AI). 392 ; Cu-sack v. 
 Omark, 5 liro. P. C. Tom. ed. 116; (Iriffith v. Buckle, 2 Vein. 13; 
 'Stonor V. Curu-en, 5 Sim. 26S ; Daricx v. Daviei, 4 Beav. 54 ; Lambert v. 
 Peyton, 8 H. L. C. 1.
 
 EXECUTED TRUSTS CONSTRUED STRICTLY, ETC. 97 
 
 be presumed that the parties meant to put it in the power Art. 18. 
 of the husband to defeat the very object of the settle- 
 ment, which is to make a provision for the issue of the 
 marriage (n). 
 
 6. But where the articles show that the parties under- 
 stood the distinction (as, for instance, where part of the 
 property is limited in strict settlement, and part not), the 
 trust will be construed strictly (o). 
 
 7. It would seem that, under a direction to settle on a Powers 
 
 woman and her children, the usual powers of maintenance ''"P^^d m 
 
 ^ executory 
 
 and advancement ought to be inserted (jj), and also powers trusts. 
 
 of sale and exchange {q). So where marriage articles provide 
 for "powers usually contained in settlements of a like 
 nature," powers of sale, exchange, and reinvestment are 
 authorised (r). Again, where a settlement of personalty con- 
 tains a power to vary investments, and a covenant to settle 
 after-acquired property on similar trusts, a settlement of 
 after-acquired real estate should contain a power of sale, as 
 that is analogous to a power of varying investments of per- 
 sonalty (s). On the other hand, a reference to certain 
 powers will, it would seem, primd facie negative any 
 others {t)'. A direction, in marriage articles, that upon the 
 lady having issue, a certain estate should be strictly settled, 
 was held not to authorise a power to provide portions for 
 younger children [u). 
 
 8. In a will it is obvious that the same presumption will Construction 
 not arise as in the case of marriage articles. Therefore, tnists^lf"^^ 
 
 wills. 
 
 {n) As to the meaning of " issue " in marriage articles, see Nandick v. 
 Wilkes, Gil. Eq. Rep. 114; Burton v. Hastings, ib. 113; Hart v. 
 Middlehurst, 3 Atk. 371 ; Maguire v. Sadly, 2 Hy. 113 ; Burnaby v. 
 Griffin, 3 Ves. 206 ; Home v. Barton, 19 Ves. 398 ; Phillips v. James, 
 2 D. & Sm. 404. 
 
 (o) Howel V. Hoivel, 2 Ves. 358 ; Powel v. Price, 2 P. W. 535 ; 
 Chambers v. Chambers, 2 Eq. C. Ab. 35, c. 4; Highway v. Banner, 
 1 Bro. C. C. 584. 
 
 (p) Re Parrott, Walter v. Parrott, 33 Ch. D. 274. 
 
 (q) Wise v. Piper, 13 Ch. D. 848. 
 
 (r) Duke of Bedford v. Marquis of Abercorn, 1 M. & C. 312. 
 
 (s) Elton V. Elton, 27 Beav. 634 ; and see Tait v. Lathbury, 1 Eq. 174. 
 
 (t) See Brewster v. Anqell, 1 J. & W. 625. 
 
 (m) Grier v. Grier, L. R. 5 H. L. 688 ; and see Dod v. Dod, Amb. 274.
 
 98 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 18, 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 {x). 
 
 9. There is, however, no difference between the construc- 
 tion 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 its very nature) furnishes more 
 emphatically the means of ascertaining the intention of 
 those who created the trust (y). In Sackville West v. 
 Holmesdalc, Lord Chelmsford said: "The best illustra- 
 tion of the object and purpose of an instrument furnish- 
 ing an intention in the case of executory trusts, is to 
 be found in the instance of ixiarriage 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. So, as Sir W. Grant said, in Blackburny. 
 Stables (z), ' in the case of a will, if it can be clearly ascer- 
 tained 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 settle- 
 ment 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 ' " (a). 
 
 10. So, again, a testator bequeathed money to trustees 
 upon trust to purchase real estate, and settle it upon A. for 
 
 (a;) Sivectapph v. Bindon, 2 Ver. rj^6. 
 
 (y) Sarknllt Wrtl v. Jlotmtidale, 4 H. L. 543 ; and see also Christie v. 
 Oodinq, 1 H. L. r)l.S. 
 
 (z) 2 V. & 13. .367. (a) Dastard v. Prohy, 2 Cox, 6.
 
 EXECUTED TRUSTS CONSTRUED STRICTLY, ETC. 99 
 
 life without impeachment of loaste, with remainder to trustees Art. 18. 
 to preserve contingent remainders, with remainder to the 
 heirs of A.'s body, and with a power to jointure. He also 
 devised land to A. upon exactly similar uses. It was held, 
 that the testator manifested an intention to give A. a life 
 estate only; and that consequently, in the case of the 
 executory trusts, this intention should be carried out ; but 
 that in the case of the devise, that being executed, must be 
 construed according to the rule in Shelley's Case {b). In 
 fact, any indication that the first taker is not to take in tail 
 or fee is sufficient ; 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 the like (c). 
 
 11. A devise (subject to life interest of testator's widow), 
 upon trust to convey, assign, and assure freehold property 
 " unto and to the use of my son T. F., and the heirs of his 
 body lawfully issuing, but in such manner and form, never- 
 theless, and subject to such limitations and restrictions, as 
 that if T. F. shall happen to die without leaving lawful 
 issue, then that the property may after his death descend 
 unincumbered unto and belong to my daughter E. F., her 
 heirs, executors, administrators, and assigns " : — Held, that 
 the devise was an executory trust to be executed by a con- 
 veyance to the use of T. F. during his life, with remainder 
 to his first and other sons and daughters as purchasers in 
 tail, with remainder to R. F. in fee (d). 
 
 12. A. devised lands to a corporation in trust to convey to where stnci 
 A. for life, and afterwards, upon the death of A., to his first oonstruction 
 son for hfe, and then to the first son of that first son for life, Jl-usllueS. 
 with remainder (in default of issue male of A.) to B. for life, 
 
 and to his sons and their sons in like manner. Lord 
 CowPEE said, that though the attempt to create a perpetuity 
 was vain, yet, so far as was consistent with the rules of law, 
 
 {h) PapilloH V. Voice, 2 P. W. 471 ; Trevor v. Trevor, 1 H. L. Cas. 
 -239. 
 
 (c) See Papillon v. Voice, supra ; Leonard v. Lord Sussex, 2 Ver. 
 ■526 ; Thompson v. Fisher, 10 Eq. 207 ; Parker v. Bolton, 5 L. J. 
 Ch. 88. 
 
 (d) Thompson v. Fisher, supra.
 
 100 DECLARED OR EXPRESS TRUSTS. 
 
 Art. 18. the devise ought to be complied with ; and he directed that 
 all the sons already born at the testator's death should take 
 estates for life, with limitations to their unborn sous in 
 tail (e). 
 
 Directions |3, This work being a treatise on law, and not on the 
 
 interpretation of wills, it is not considered necessary to 
 examine the cases on the construction of directions to settle 
 property, nor as to covenants to settle after- acquired pro- 
 perty, as to which the reader is referred to Underbill and 
 Strahan's " Interpretation of Wills and Settlements." 
 
 {e) Humherston v. Hnmhcrfton, 1 P. W. 332 ; WiUiams v. Tecde, 
 6 Hare, 239 ; Lyddon v. ElUmn, 19 Beav. 565 ; Peard v. Kekeicich, 
 15 Beav. 173 ; but see BJagrove v. Handcock, 18 Sim. 378 ; and see 
 also Re Biissell, Dordl v. Dordl, [1895] 2 Ch. 698.
 
 DIVISION III. 
 CONSTRUCTIVE TRUSTS. 
 
 CHAPTER PAGE 
 
 I. — Introduction 101 
 
 II. — Resulting Trusts 103 
 
 III, — Constructive Trusts luhich are not Besulting - 125 
 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 Art. 19. — 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 a legal estate is given to another, 
 
 but the equitable interest is not, or is 
 only partially disposed oi{a). 
 
 (b) when the equitable interest is disposed of 
 
 in a manner which the law will not 
 permit to be carried out {h). 
 
 ia) Art. 20. (&) Art. 21.
 
 102 CONSTEUCTIVE TEUSTS. 
 
 Art. 19. (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. 
 
 (3) Constructive trusts which are not resulting 
 arise : — 
 
 (a) when some person holding a fiduciary 
 
 position has made a proht out of the 
 trust property (d). 
 
 (b) in all other cases where there is no express 
 
 trust, but the legal and equitable estates 
 in property are nevertheless not co-equal 
 and united in the same individual (e). 
 
 (c) Art. 22. id) Art. 24. (e) Art. 25.
 
 ( 103 ) 
 
 CHAPTEB II. 
 
 RESULTING TRUSTS. 
 
 ART. PAGE 
 
 20. — Wliere Equitable Interest not wholly disposed of - - - 103 
 
 21. — Resulting Trusts where Trusts declared are Illegal - - 108 
 
 22. — Resulting TrxLsts xvhere Purchase made in Another's Name - 113 
 
 23. — To whom Pro'perty restdts 119 
 
 Aet. 20. — Wliere Equitable Interest not tvliolly 
 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 
 
 particular purpose (as distinguished from 
 a mere subjection to such purpose (Z>)) 
 which turns out to be insufficient to 
 exhaust the property ; or 
 
 (c) if an express trust cannot be carried into 
 
 effect (c). 
 
 (a) Per Lord Hardwicke, Hill v. Bishop of London, 1 Atk. 620 ; 
 Walton V. Walton, 14 Ves. 322 ; King v. Denison, 1 V. & B. 279. 
 
 (6) Watson v. Hayes, 5 M. & C. 125 ; Wood v. Cox, 2 M. & C. 684 ; 
 Cunningham v. Foot, 3 App. Cas. 974 ; Re West, George v. Grose, 
 [1900] 1 Ch. 84. 
 
 (c) Stubbs V. Sargon, 3 My. & Cr. 507 ; Ackroydv. Smithson, 1 B. C. C. 
 503.
 
 104 
 
 CONSTRUCTIVE TRUSTS. 
 
 Art. 20. 
 
 (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, parol evidence is (at all 
 events in the case of gifts intej- vivos) admissible, 
 both in aid and in contradiction of the pre- 
 sumption (e). 
 
 Devise to 
 
 trustees eo 
 nomine. 
 
 Devise upon 
 trusts not 
 <leclared. 
 
 Illustrations of Pakageaph (1) (a). 
 
 1. Thus, where real estate was devised to " my trustees," 
 but 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 the expression " trustees," unexplained by anything 
 else in the instrument (/), all notion of a beneficial interest 
 being intended in their favour was excluded {g). 
 
 2. A testator devised and bequeathed all his estate and 
 effects to A. and B., their heirs, executors, and adminis- 
 trators, ujoon tnist 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 {h). 
 
 (d) See Lanrfham v. Sandford, 17 Ves. 442 ; Irvine v. Sullivan, 8Eq. 673. 
 
 (c) 29 Car. '2,:c. .3, s. 8 ; Ga.scoigne v. Thidng, 1 Vern. ,366 ; Willis v. 
 Willis, 2 Atk. 71 ; Cook v. J/ii/cJiiiison, 1 Kce. 42. As to parol evidence 
 cxplaiiatf)ry of a t<stator\s intention, see Doclcne.y v. Docknty, 2 Ecj. 
 C. A. .WO ; North v. Crompton, 1 Ch. Ca. 196 ; Walton v.' Walton, 
 14 v. 322 ; JjajKjhnm v. Sandford, .sn/ira ; Lynn v. Bearer, T. & R. 66 ; 
 and Biddnlpk v.' Willinmx, I CIi. 1). 208. 
 
 (/) As, for instance, if the expression is used with reference to one 
 oidy of two s(!})atat(; funds {llatiliy v. Windle, 2 ]i. C. C. .31 ; Pratt v. 
 SI'iihhv, 14 licav. 1!).3; (lihlisv. limnxcy, 2 V. & 15. 294). 
 
 (;/) JJair.sou V. Clark, IH Ves. 247 ; /'iarrs v. Fewken, 2 H. & M. 60 ; 
 and see KIcnck v. J\/a/ij), .3 U. L. (Jas. 492. 
 
 (h) Lov'/lt'y V. Lowjicy, 1.3 K(j. 1.3.3 ; DtimuKje v. White, 1 J. & W. 
 r>H.3; IJoyd v. Lloyd, 7 K<|. 45S ; rf. JJ'Almaine v. Momley, 1 Dr. 629; 
 Coard v. Jloldemtase, 20 IJeav. 147.
 
 EQUITABLE INTEEEST NOT WHOLLY DISPOSED OF. 105 
 
 Illustkations of Paragraph (1) (b). ' 
 
 1. Where there is a devise to A. upon trust to pa,y debts, Residue after 
 •or to answer an annuity, there is a resulting trust of what satisfaction 
 remains after payment of the debts or satisfaction of the trust, 
 annuity (i). And, on similar principles, where there was a 
 
 trust for a widower until he should die or marry again, and 
 Wjjon 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 (k). 
 
 2. But where (1) one made his will and thereby gave £5 No resulting 
 to his brother (who was also his heir-at-law), and made {'^''^^^^ "^'^I^J"® 
 and constituted his " dearly beloved wife " his " sole heiress that donee 
 and executrix" of all his lands and real and personal was to take 
 estate, to sell and dispose thereof at her pleasure, and to ' •^' 
 pay his debts and legacies, it was held, that the wife was 
 
 entitled to the real estate for her own benefit, and that 
 there was no resulting trust to the heir. The ground of 
 this decision was, that the direction that the wife should be 
 sole heiress, did in every respect place her in the stead of 
 the heir-at-law, and not as trustee for him, and that this 
 was "rendered plainer by reason of the language of tender- 
 ness and affection which must intend to her something 
 beneficial, and not what would be a trouble only " ; in 
 addition to which the heir was not forgotten, but had £5 
 left him. 
 
 3. So, where debtors assigned their property to trustees Assignment 
 in trust to sell, and divide the i^rocceds amongst their ^°'^' j'.^neht of 
 creditors in rateable proportions according to the amounts of 
 
 their respective debts, it was held by the House of Lords 
 
 [i) King v. Denison, 1 V. & B. 279 ; Watson v. Hayes, 5 My. & Cr. 125 ; 
 but see contra Croome v. Croome, 61 L. T. 814. 
 
 (k) Gowan v. White, 60 L. T. 931 ; and see Upton v. Broivn, 12 Ch. D. 
 872, sed qucere, having regard to i?e Akeroyd, Roberts v. Akeroyd, 
 [1893] 3 Ch. 363. See also Re Ahhott's Trust, Sinith v. Abbott, [1900] 
 2 Ch. 326, where there was a resulting trust for a fund which had been 
 raised for the relief of two distressed ladies. 
 
 (0 Rogers v. Rogers, 3 P. W. 193 ; and see Croome v. Croome, 
 ^tipra ; and Irvine v. Sullivan, 8 Eq. 673.
 
 106 
 
 COXSTEUCTIVE TRUSTS. 
 
 Art. 20. 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 (m). 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 {71) 
 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 io 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 augmen- 
 tation of the dividends of the creditors who do claim (0). 
 
 Charge does 
 not implj- 
 resulting 
 trust of 
 residue. 
 
 5. And so under a devise to A., charged with the payment 
 of debts and legacies (_p), or charged with the payment of a 
 contiugent legacy {q) which does not take effect, there will 
 be no resulting trust, but the whole property will go to the 
 devisee 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 property (?•). 
 
 (m) Smith V. Cooke, [1S91] 1 A. C. 297. It is difficult, if not 
 impossiVjle, to reconcile this case with Green v. Wynn, 4 Ch. App. 204, 
 which does not seem to have been quoted to their lordships. 
 
 (n) Lord H.vi.SBrRY spoke, in his judgment, of it being the 
 "ordinary and familiar method in such cases to express a resulting 
 trust on the face of the instrument." This phrase has given rise to 
 much comment in technical circles, as a resulting trust, in the sense 
 attributed to the term by equity lawyers, only arises in the absence of 
 an express one. It is, liowever, sufficiently ol)\'ious that what his 
 lordsliip meant was, that if it were intended to have an ultimate trust 
 springing back (i.e., resulting) to the debtor, the familiar mode of 
 (loing tliis was by expressing it on the face of the instrument, and not 
 leaving it to be implied. He was, in fact, using the phrase " resulting 
 trust," not in the narrow technical sense of a con-stmctive resulting 
 trust, l)ut in tlio wider, original etymological .sense, of a trust (whether 
 express or imi)licrl), springing back, or resulting, to its creator. 
 
 (o) W'i/d V. JjaiiiiiiK/, 2 Eij. 577. 
 
 (/>) Kiii'j V. Jhin-son, snjira ; Wood v. Cox, liiipra. 
 
 (q) 7'reyonivtff v. Sydenham, 3 Dow. 210. 
 
 (r) Croome v. Croome, 61 L. T. 814.
 
 EQUITABLE INTEEEST NOT WHOLLY DISPOSED OF. 107 
 
 Art 20 
 
 Illustrations of Paeageaph (1) (c). !_ 
 
 1. Where lands have been conveyed to a trustee but the Lands vested 
 trusts have not been manifested and proved by a signed y^^^^ ^^ ' 
 "writing in accordance v^ith the Statute of Frauds, there will written trust. 
 be a resulting trust to the settlor (s). 
 
 2. So, if a declared trust is too uncertain or vague to be Uncertainty 
 executed (t), or fails by lapse {u), or otherwise, or becomes ^^ express 
 in the event too remote (v), then, as it is expressed on the trust. 
 face of the instrument that the trustee was not intended 
 
 to take beneficially, there will be a resulting trust. Thus, 
 where a trades union was 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 (x). 
 
 3. So where a settlement is executed in contemplation of Total failure 
 a marriage which is subsequently broken off, there is a °. ^o^^i^^ei'^-- 
 total failure of the consideration on which the settlement express • 
 was based, and the property results to the settlor {y). trust. 
 
 Illustrations of Paragraph (2). 
 
 1. "Where a testator bequeathed money to D. absolutely. Evidence not 
 
 " trusting that she will carry out my wishes with regard to a-dmissible 
 
 " J J o where donee 
 
 the same with which she is fully acquainted" it was held is a trustee 
 
 (1) that it was clear on the face of the will that D. did not °" the face 
 
 take absolutely beneficially ; (2) that therefore parol 
 
 evidence was not admissible to show that the testator's 
 
 (.s) Rudkin v. Dolman, 35 L. T. 791 ; or Statute of Wills ; Be Boyefi, 
 Boyes v. Carritt, 26 Ch. D. 531 ; and i?e Kimj, 21 L. R. Jr. 273. 
 
 (t) Stnhhs V. Sargon, 2 Kee. 255 ; Morice v. Bishop of Durham, 9 Ves. 
 399, and 10 Ves. 522 ; Kendal v. Granger, 5 Beav. 300. 
 
 (?t) Ackroyd v. Smithson, 1 B. C. C. 503 ; Spink v. Leiois, 3 B. C. C. 
 355. 
 
 {v) Tregonwell v. Sydenham, 3 Dow. 194, 210, 
 
 (x) Re PrinterK, etc. Society, [1899] 2 Ch. 184 ; distinguishing 
 Cunnack v. Edwards, [1896] 2 Ch. 679, where luider the special circum- 
 stances no resulting trust arose. See also Re Wilcock, 62 L. T. 317 ; 
 where there was an ultimate trust contained "in a settlement of even 
 date," which was never in fact executed. 
 
 (y) Essery v. Cowlard, 26 Ch. D. 191.
 
 108 
 
 CONSTRUCTIVE TRUSTS. 
 
 Art. 20. 
 
 Evidence 
 admissible 
 in other 
 cases. 
 
 intention was that she should take beneficially ; and (3) that 
 in accordance with paragraph (1) (b), supra, after satisfying 
 the purposes communicated to her by the testator she was 
 beneficially entitled to the balance, and that there was no 
 resulting trust {z). 
 
 2. 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 presumption of a result- 
 ing trust (arising under Article 22, 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 Court of Chancery is asked, on an 
 equitable assumption or lyresumption, 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 circum- 
 stances ' " {a). 
 
 3. So evidence is admissible to rebut the legal presump- 
 tion 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 (b). 
 
 Art. 21. — Besiilting Trusts, where Trusts 
 declared are Illegal. 
 
 When fi person has intentionally vested 
 property in another for an illegal purpose, then, 
 (if the trustee expressly relies (c) upon the maxim 
 " in 2^ari delicto, 'potior est conditio possidentis y^^) 
 
 (::) Jrrinc, v. Siil/imn, H l<]i|. .'{7.'?. 
 
 (<i.) FfjirLr.M V. raxroc, 10 Cli. Ap]). :M3, 349. 
 
 (h) Lniif- V. JJiijhton, Anil). W.) ; liider v. Kidder, 10 Ves. 368; 
 Ikiihoir V. Toiriixiiu/,, 1 M. tt K. .')U1 ; London, etc. Banking Co. v. 
 London, dr. Hank; '21 Q. 15. 1). ]). 542 ; Re Blake, 60 L. T. 663. 
 
 (<•) JJaitjh V. Kaye, 7 Ch. App. 469.
 
 EESULTING TRUSTS WHERE TRUSTS ILLEGAL. 10^ 
 
 the settlor cannot recover it back (rZ), except in Art. 21. 
 the following cases, in each of which there will 
 be a resulting trust, namely : — 
 
 (1) where the illegal purpose is not carried 
 
 into execution (e). 
 
 (2) where the effect of allowing the trustee 
 
 to retain the property might be to 
 effectuate an unlawful object, to defeat 
 a legal prohibition, or to protect a 
 fraud (/). 
 
 Illustkations. 
 
 1. Where a father granted land to his son, in order to Conveyance 
 give him a colourable qualification to shoot "ame under the ^° q^ialify 
 
 tor tTcilTlG 
 
 old game laws, and without any intention of conferring any licence or 
 beneficial interest upon him, the court would not enforce office, 
 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 [g). Of 
 course, if there had been no illegality (if, for instance, a bare 
 legal estate had been a sufficient qualification), there would 
 have been a resulting trust (li). 
 
 2. So in Ayerst v. Jenhins (i), a widower, two days before Settlement 
 going through the ceremony of marriage with his deceased imnioral 
 
 tion. 
 
 (fZ) Diike of Bedford v. CoJ:e, 2 Ves. sen. 116 ; Curtis v. Perry, 
 6 Ves. 739 ; Cottinqton v. Fletcher, 2 At. 156 ; BracJcenbury v. Bracken- 
 bury, 2 J. & W. 391 ; Taylor v. Gheder, 4 Q. B. 309 ; Ayerst v. Jenkins, 
 16 Eq. 275. 
 
 (e) Symes v. Hughes, 9 Eq. 475 ; Childers v. Childers, 1 D. & J. 482 ; 
 Daviesv. Otty, 35 Beav. 208 ; Birch v. Blagrave, Amb. 264 ; Platamore v. 
 Staple, Ct. Coop. 250. In the United States of America this distinction 
 does not prevail. There the question whether the illegal purpose has 
 failed or succeeded is deemed to be immaterial, and the only question 
 considered is whether the trust is execxited or executory. In the former 
 case there is no resulting trust ; in the latter the expressed trust will 
 not be enforced. 
 
 (/) See per Lord Selborne in Ayerst v. Jenkins, 16 Eq. 283 ; and 
 seeder Knight-Bruce, L.J., in Reynell v. Spry, 1 De G. M. & G. 660, 
 where he said : " Where the parties are not in pari delicto, and where 
 public policy is considered as advanced by allowing either party, or at 
 least the more excusable of the two, to sue for relief, relief is given to 
 him." And see also, to same effect, Law v. Laio, 3 P. W. 393, and 
 St. John V. St. John, 11 Ves. 535. 
 
 (gr) Brackenhury v. BrackenJ)ury, 2 J. & W. 391. 
 
 (h) Childers v. Childers, 1 D. & J. 482. (i) 16 Eq. 275.
 
 110 CONSTEUCTIVE TRUSTS. 
 
 Art. 21. wife's sister (which ceremony was known to both parties to 
 be invahd), 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 inalienable use of the lady during her life, and after her 
 death as she should by deed or will appoint. They after- 
 wards 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 
 Selborne, however, said: " Belief is sought by the repre- 
 sentative, not merely of a particeps criminis, but of a volun- 
 tary 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 chattls was absolutely vested in 
 trustees for the sole benefit of the defendant. I know of no 
 doctrine of public policy which requires or authorizes a 
 court of equity to give assistance to such a plaintiff under 
 such circumstances. When the immediate and direct effect 
 of an estoppel in equity against relief to a particular plaintiff 
 might be to effectuate an itnlaioftil object, or to defeat a legal 
 2Jrohibition, or to protect a fraiul, such an estoppel may 
 well be regarded as against public policy. But the voluntary 
 gift of part of his own property by one lyarticcps criminis 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 
 recall, while the object is yet unaccomplished (k), 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 Loi'd Teuro in Bcnyon v. Nettle/old (l), that the 
 law in sanctioning the defence of imrticeps criminis does 
 so on the grounds of public policy,— namely, that those 
 who violate the law must not apply to the law for protec- 
 tion." In the more recent case of Pliillips v. Prohyn{m), 
 
 (/•) Ah ill Si/tms v. JIiK/hcs, svpra. 
 
 (I) :i M. & (;. J02. ■ (m) [1899] 1 Ch. 811.
 
 EESULTING TRUSTS WHERE TRUSTS ILLEGAL. Ill 
 
 Mr. Justice North distinguished Ayerst v. Jenkins on the Art. 21. 
 ground that in the case before him the settlement was made 
 in consideration of a contemplated illicit so-called marriage 
 with a deceased wife's sister. It is, however, humbly sub- 
 mitted, 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. The practitioner 
 must also carefully bear in mind, that where property is 
 transferred to trustees in trust for the settlor tmtil an 
 intended marriage with his deceased wife's sister is solem- 
 nized, and then in trust for the lady and issue of the 
 marriage, the trust will be void, inasmuch as such sG 
 marriage cannot take place (n), and therefore the condition 
 precedent can never be performed. 
 
 Illustrations of Sub-paragraph (1). 
 
 1. In Symes v. Hughes (o), the plaintiff, being in pecuniary Fraudulent 
 difficulties, assigned certain leasehold property to a trustee conveyance, 
 with the view of defeating his creditors. Two and a half 
 
 years afterwards he was adjudicated bankrupt, but obtained 
 the sanction of his creditors, under s. 110 of the Bankruptcy 
 Act, 1861, to an arrangement, by which his estate and effects 
 were re-vested in him, he covenanting to prosecute a suit for 
 the recovery of the assigned property, and to pay a com- 
 position of two and sixpence in the pound to his creditors, 
 in case his suit should prove successful. Lord Eomilly, 
 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 
 property from the assignee who has given no consideration 
 for it." 
 
 2. So, again, the plaintiff, being apprehensive of an Conveyance 
 
 indictment for bigamy (conviction for which then involved *° ^^"'"^^ 
 
 „ ^ roiieiture 
 
 lorieiture of property), conveyed his real estate to the foi- felon j\ 
 
 {n) Paioson v. Brown, 13 Ch. D. 202 ; Neale v. Neale, 79 L. T. 629. 
 (o) 16 Eq. 283.
 
 112 
 
 CONSTRUCTIVE TRUSTS. 
 
 Art. 21. 
 
 Couveyance 
 to escape 
 serving as 
 sheriff. 
 
 defendant, on a parol agi-eement to re-transfer when the 
 difficulty should have passed over. It subsequently trans- 
 ph'ed 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 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 (j)). 
 
 3. And where a father convej'ed the legal estate in pro- 
 perty to his daughter, with the intention of thus escaping 
 from serving as sheriff, but afterwards repented, and paid 
 the fine, Lord Haedwicke said : "I am of opinion that the 
 convej'ance ought not to take effect against his intention 
 unless he had actually taken the oath " that he had not the 
 requisite qualification (g). 
 
 Attempt to 
 evade iiile 
 against per- 
 petuities or 
 accumula- 
 tions. 
 
 Illusteatioxs of Sub-paeagkaph (2). 
 
 1. Where a settlor attempts to settle property so as to 
 contravene the policy of the law with regard to perpetuities, 
 such trusts will not only not be carried into effect, but the 
 person nominated to carry them out is held to be a mere 
 trustee for the settlor or his representatives. For the 
 attempt was made either through ignorance or carelessness, 
 or else with a direct intention to contravene the law. In 
 the former case, as there would be 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 (r). So where the settlor 
 directs accumulations beyond 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 (s). 
 
 (p) Darks V. Otty, .S.'i Bea. 208. 
 (7) Birch V. Blai/rarf, Amb. 264. 
 
 (>•) Carrirk v. Errimiton, 2 I'. W. .S61 ; Trajonwtll v. Sydenham, 
 3 Dow. 194 ; O'ihbs v. BianMy, 2 V. & B. 294. 
 
 (.•«) Be Travis, Frost v. O'realorex, [1900J 2 Cli. 541.
 
 EESULTING TRUSTS WHERE TRUSTS ILLEGAL. 113 
 
 2. And SO again, where lands, or the proceeds of land, Art. 21. 
 were devised to charitable uses, or were devised to one who " 
 
 was, under a secret agreement with the testator, pledged to evade"Mort- 
 apply them to charitable purposes, then, notwithstanding main Acts, 
 the improper 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 (t). 
 But of course this is no longer so since the Mortmain and 
 •Charitable Uses Act, 1891 (51 & 55 Vict. c. 73). 
 
 Art. 22. — Resulting Trusts ivhere Purchase 
 made in Anotlier's Name. 
 
 (1) When real or personal property (?0 is taken 
 in the names of the purchaser and others 
 generally, or in the names of others without that 
 of the purchaser, or in one name, or in several, 
 and whether jointly or successively, there is a 
 jyrimd facie presumption of a resulting trust in 
 favour of the person who (by parol (.r) or other 
 evidence) is proved to have advanced the pur- 
 chase-money (y) in the character of purchaser (z). 
 But this presumption may be rebutted — 
 
 (a) by parol (a) or other evidence ; 
 
 (b) by the fact that the person in whose name 
 
 the purchase was made was the wife (b) 
 
 {t) Arnold v. Chapman, 1 Ves. sen. 108 ; AddHngfon v. Cann, 
 Barn. 130 ; Springett v. Jennings, 10 Eq. 488 ; but see Rowhotham v. 
 Dunneff, 8 Ch. D. 430. 
 
 («) Dyer v. Dyer, 2 Cox, 73 ; Ehrand v. Dancer, 2 Ch. Ca. 26 ; 
 Wheeler v. Smith, 1 Uiflf. 300. 
 
 [x) 29 Car. 2, c. 3, s. 8 ; Ryall v. Byall, 1 Atk. 59 ; Leach v. Leach, 
 10 Ves. 517 ; Rochefoucauld v. Boustead, [1897] 1 Ch. 196. 
 
 (y) Dyer v. Dyer, supra ; Wray v. Steele, 2 V. & B. 388. 
 
 (■:) Rochefoucauld v. Bonstead, siipra. 
 
 (a) Rider v. Kidder, 10 Ves. 360 ; Standing v. Bowring, 31 Ch. D. 
 282. 
 
 (h) Re Eyhin, 6 Ch. D. 115 ; Drew v. Martin, 2 H. & M. 130.
 
 114 
 
 CONSTEUCTIVE TKUSTS. 
 
 Art^2. or child of the purchaser (c), or was some 
 
 person towards whom he stood in loco 
 parentis (d), or was trustee of a settle- 
 ment by which the purchaser has pre- 
 viously settled property (e). 
 
 In any of these cases a jwivid facie (but re- 
 buttable (/)) presumption will arise that the 
 purchaser intended the ostensible grantee or 
 grantees to take absolutely. 
 
 (2) Similar principles apply to voluntary 
 transfers made by owners of p)e7^sonal estate ; but 
 there is no presumption of a resulting trust in a 
 voluntary conveyance of real estate to another's 
 use(^). 
 
 Illustrations. 
 
 ■Where pur- 1. Where the purchase-money is advanced, partly by the 
 fnnTl"TlT?^ person in whose name the property is taken, and partly by 
 two persons, another, then, if they advance it in equal shares, they will 
 (in the absence of evidence or circumstance showing a 
 contrary intention (li) ) 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 {i). But if one pay the purchase-money at 
 the request of and by way of loan to the person in whose 
 
 (c) Soar V. Foder, 4 K. & J. 152 ; Btckford v. Bedford, Lofit, 490. 
 
 (d) Beckford v. BeckJ'ord, supra; Currant v. Jayo, 1 Coll. 261 ; 
 Tudxr V. Burron, 2 H. & M. 515 ; Forrest v. Forrest, 18 W. R. 380. 
 
 (e) Be Curtein, 14 E(i. 220. 
 
 (/) Ttinbridfje v. Cane, 19 W. R. 1047 ; )!'/// /a??i.s v. Williamn, 
 32 JJeav. 370. 
 
 (;i) Ah to j)erHonal estate, joer Cotton, L.J. , in (Sta/fc/fv;;/ v. Bowriiuj, 
 31 Ch. 1). 2S2 ; and 7>r'r Jkssel, M.R., in Fowlccs v. J'ascoe, 10 Ch. Api>. 
 345 n. ; hut see James, L.J., dubitanle S.C'. at p. 348, and contra, 2)<^r 
 Richards, C.B., in (leorgc. v. lloivard, 7 Price, 040. As to real estate, 
 p^r Lord HiUDVViCKE, in Youwj v. Peachy, 2 Atk. 257; and per 
 James, L.J., in FoirhcH v. Pancoe, xupra. 
 
 (h) See liohiiimn. v. J'rtHtoii, 4 K. & J. 505 ; Edmards v. Fashion, 
 I'r. C'li. 3.S2 ; Lake v. dhnon, 1 Va[. Ca. Ab. 290 ; Bone v. Pollard, 
 24 Beav. 283. 
 
 (i) Lakev. Oihson, sujmt ; Hiijden v. Vallier, 3 Atk. 735.
 
 BESULTING TRUSTS (PURCHASE IN ANOTHER'S NAME). 11"' 
 
 name the property is taken, there will be no resulting trust. Art. 22, 
 For the lender did not advance the purchase-money as ~ 
 
 purchaser (k), but merely as lender. 
 
 2. In Standing v. Botvrinrj (l) the facts were as follows : Evidence of 
 The plaintiff, a widow, in the year 1880 transferred £6,000 Jl'^^^^it?'' *'' 
 consols into the joint names of herself and her godson, the 
 defendant. This she did with tho express intention that the 
 defendant, in the event of his surviving her, should have 
 
 the consols, but that she herself should retain the divi- 
 dends 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 adopted 
 child, then there is inimd 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, 
 or for some time previously, the plaintiff intended to confer 
 a benefit, by this transfer, on her late husband's godson." 
 
 3. In Grahb v. Crabb (m), a father transferred a sum of Advancement 
 stock 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 subsequently, 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, as I must take it on the autho- 
 rities, 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 
 
 {k) Aveling v. Knipe, 19 Ves. 441. 
 
 {I) 31 Ch. D. 282 ; and see also Fowkes v. Pascoe, 10 Ch. App. 34.3. 
 
 {7}i) 1 M. & K. 511; and see also Birch v. Blagrave, Amb. 264; 
 Standing V. Bowring, 31 Ch. D. 282 ; and Batstone v. Salter, 10 Ch. App. 
 431, where a mother transferred stock into the joint names of herself, 
 her daughter, and her son-in-law. 
 
 I 2
 
 116 CONSTRUCTIVE TRUSTS. 
 
 Art. 22. will not be allowed to arise, merely because a donor subse- 
 quently changes his mind. 
 
 Rebutting 5. But a declaration made by the father at or hcfore the 
 
 adv-anc^ment *^^*® °^ ^^® 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 " {n). 
 
 5. Surrounding circumstances may also tend to rebut the 
 presumption. 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-money 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 : " "^Tiere a father takes an estate 
 in the name of his son, it is to be considered as an advance- 
 ment ; 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 his 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 ai*e 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 " (o). The diction of the learned Chancellor, that the 
 presumption may be rebutted by subsequent acts, cannot be 
 taken to mean subsequent acts of the father, which are only 
 
 (h) }yU/iamA V. WiUianut, 32 Beav. 370. 
 
 (o) Pofe V. Po(f, 1 Ves. sen. 76; Slocl- v. McAvoy, 15 Eq. 55; 
 Bone V. PoUard, 24 Beav. 283 ; and Marshall v. Crutwdl, 20 Eq. 328.
 
 RESULTING TRUSTS (PURCHASE IN ANOTHER'S NAME). 117 
 
 admissible against, and not for, him(j;); but must, it is Art. 22, 
 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 (q) ) ; or to subse- 
 quent 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 
 presumption, although taken together with other circum- 
 stances, it was a strong link in the chain (?•). 
 
 6. So the relationship of solicitor and client between the 
 son and the parent has been considered a circumstance that 
 will, of itself, rebut the presumption of advancement (s). 
 
 7. Again, a sum of consols was vested in the trustees of Augmenta- 
 a marriage settlement upon the usual trusts. The husband p^o^gftv*^^ 
 directed the bankers who received the dividends (and paid 
 
 them to him as tenant for life under a power of attorney 
 from the trustees), to invest an additional sum of £2,000 
 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 for the husband, but that it became subject to 
 the trusts of the settlement as an augmentation of the trust 
 fund (t). 
 
 8. In Be De Visme (u) it was laid down, that where a Whether 
 
 married woman had, out of her separate estate, made a Pi'^sumption 
 
 . ' ^ ' of advance - 
 
 purchase in the name of her children, no presumption of meat by 
 
 advancement arose, inasmuch as a married woman was "larried 
 n 1 1- i- , • ■ T 1 -1 T mi • woman, 
 
 under no obngation to maintain her children. This case 
 
 was followed by the late Sir George Jessel, M.R., in 
 
 {p) Bedington v. Redingfon, 3 Ridge, 177. 
 
 (q) Sidmouth v. Sidmouth, 2 Beav. 455 ; Heptuoiih v. Ilepworth, 
 11 Eq. 10. 
 (r) See per Lord Loughborough, 3 Ridge, 190. 
 (s) Garrett v. WilMn.soii, 2 D. & S. 244, .sed qucvre. 
 (t) Be Curteis, 14 Eq. 220. 
 («) 2 De G. J. & S. 17.
 
 318 CONSTKUCTIVE TRUSTS. 
 
 Art. 22. Bennet v. Bennct (v), where a mother was entitled to property 
 under the Married Women's Property Act, 1870, by which 
 married women were made as liable as tvidows for the main- 
 tenance of their children. The late Master of the Eolls, 
 however, gave it as his opinion, that the presumption of 
 intention to advance, depended, not on the liability to main- 
 tain, 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, notwithstand- 
 ing that the Married Women's Property Act, 1882 (45 & 
 46 Vict. 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 
 Vice-Chancellor Stuaet in Sayre v. Hughes (x) ; where the 
 presumption of intention to benefit was based by the Vice- 
 Chanceller rather on motive than on duty. His lordship 
 said : " Maternal affection as a motive of bounty is perhaps 
 the strongest of all, although the duty 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 Vice-Chancellor 
 Stuaet would be found to have as much to be said in their 
 favour as those of the late Master of the Eolls. 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 pre- 
 sumption of an intention by a mother 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 
 
 (r) 10 (Jh. 1). 474. 
 
 (x) .') Kfj. 'MG. Tliis was the case of a vidom:d niotlier, but the 
 ]>rin(;ij)le ajipear-s to l)u the same.
 
 RESULTING TRUSTS (PURCHASE IN ANOTHER'S NAME), 11*) 
 
 is assuredly as much obligation on the part of a mother wJio Art. 22. 
 
 has the command of money, to benefit her children with it, 
 
 as there 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 {y). 
 
 9. With regard to the presumption of advancement in Advancement 
 
 favour of persons to whom the purchaser stands in loco '^y persons 
 
 . . . , '/< loco 
 
 parentis, it has been held that the presumption arose in the pnrentU. 
 
 case of an illegitimate child [z), a grandchild tf/ie^i the father 
 was dead [a), and the nephew of a wife who had been 
 practically adopted by the husband as his child (&). But 
 it would seem that the person alleged to have been in loco 
 parentis must have intended to put himself in the situation 
 of the person described as the natural father of the child 
 with reference to those parental offices and duties which 
 •consist in making provision for a child. 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, Vice-Chancellor Page-Wood 
 saying : "I cannot put the doctrine so high as to hold that 
 if a person educate a child to whom he is under no obliga- 
 tion either morally or legally, the child is therefore to be 
 provided for at his expense " (c). 
 
 Art. 23. — To wJiom Propertj/ results. 
 
 (1) Where a resulting trust arises under an 
 instrument inter vivos the beneficial interest 
 results to the settlor himself (d). 
 
 [y) Beecher v. Major, 2 Dr. & Sm. 431. 
 
 (z) Beckford v. BecJcford, Lofft, 490 ; Kilpinx. KiJpin, 1 My. & K. 542, 
 sed qiuvre, 4 Kay & J. 157. 
 
 (a) Ehrand v. Dancer, 2 Ch. Ca. 26. 
 
 (b) Currant v. Jago, 1 Coll. Ch. 261. 
 
 (c) Tucker V. Burrou, 2 H. & M. 515; and see per Jessel, M.R., 
 Bennet v. Bennet, 10 Ch. D., p. 477. 
 
 (d) Symes v. Hurjhe^, 9 Ecj. 475 ; Daines v. Otty, 35 Beav. 208.
 
 120 CONSTRUCTIVE TRUSTS. 
 
 Art. 23. (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 (e), 
 whether the will contains a direction for con- 
 version or not (/ ) . 
 
 (3) Where 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 per- 
 sonal representatives it devolves (whether actually 
 converted at the date of his death or not) as if it 
 were actually converted, unless the trust for 
 conversion has wholly failed {g). 
 
 Illustbations of Pakageaph (1). 
 
 Resulting 1. By a marriage settlement, real estate of the husband,. 
 
 marria"e ^^ ^'^^ personal estate of the wife, are vested in trustees, in trust 
 
 settlement, for the husband for life, with remainder in trust for the wife 
 
 for life, w^ith 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 w^ithout issue, the personal estate will result 
 
 to the wife. 
 
 Illustkatioxs of Pakageaph (2). 
 
 Resultin;,' 1. A. by his will gives his real estate unto and to the use 
 
 wni\v"i'eie' °^ trustees, and his personal estate to them absolutely, upon 
 
 no conveision trust for certain persons for life, with an ultimate remainder 
 
 directed. j^ trust for the testator's two nephews B. and C. as tenants 
 
 in common. B. dies in the testator's lifetime. His share 
 
 of the real estate will result to the testator's heir or residuary 
 
 devisee, and his share of the personalty to the testator's 
 
 next of kin oi* residuary legatees. 
 
 {(.) Achroijil. V. SmiilisDH, 1 \\'\\. k '\\\. .'?72, and cases there 
 eiteil. 
 
 (J) C'lirli !.■<%■. Wormalil, 10 ('li. I). 17- ; AcLrui/i/ v. SDiithfOii; supra. 
 
 (.7) AV Hirhtrmn, Sru/i:s v. Jliyhoc, I.I.S92) \ Cii. 379; Curteis v, 
 H'mtJi'dd, nHpra ; Coyan v. Stcphtiv*, 5 L. J. (n.s. ) (Jh. 17.
 
 TO WHOM PROPERTY RESULTS. 121 
 
 2. The preceding examples speak for themselves, and Art. 23. 
 
 require no comment. But the following case presents at 
 
 first sight more difficulty. A testator devises real estate to l^esulting 
 
 ° •' trust where 
 
 trustees, upon trust to sell and divide the proceeds between conversion 
 
 his nephews B. and C. If B. should die in the testator's 'lirected. 
 lifetime, his share of the proceeds of the sale will lapse and 
 result to the testator's heir or residuary devisee, and not to 
 his next of kin or residuary legatees, although it is pure 
 personalty. The principle on which this proceeds (settled 
 by the leading case of Ackroyd v. Smithson [li) ) is, that con- 
 version directed by a will is presumed to be only intended 
 for the purposes therein expressed ; and so far as these 
 purposes fail, equity presumes that the testator did not 
 intend to rob his real representatives of property which, but 
 for those objects, would have been theirs, and to give such 
 property to his personal representatives, whose only possible 
 ground of claim arises from the fact that the testator's 
 expressed intentions have been disappointed. Moreover, 
 this presumption is not even rebutted by a declaration 
 that the proceeds of the sale of realty are to be personalty 
 for all ijurposes (i), the latter words being construed as all 
 purposes of the will. 
 
 3. The question was explained with his customary lucidity 
 by the late Sir Geoege Jessel in the case of Curteis v. 
 Womiald {k) . There, personal estate had been bequeathed 
 upon trust to purchase real estate, which was to be held on 
 trusts, some of which eventually failed. It was held, that 
 land, purchased before the failure, resulted in favour of the 
 testator's next of kin, and not his heir. The Master of the 
 Eolls, in giving judgment, after stating the facts, said : " The 
 limitations took effect to a certain extent, and then, by reason 
 of the failure of issue of the tenants for life, the ultimate 
 limitations failed, and there became a [resulting] trust for 
 somebody. Now for whom ? According to the doctrine of 
 the Court of Equity, this kind of conversion is a conversion 
 for the purposes of the will, and does not affect the rights of 
 the persons who take by law independent of the will. If, 
 therefore, there is a trust to sell real estate for the purposes 
 
 {h) 1 Wh. & Tu. 949. 
 
 (i) Shallcross v. Wright, 12 Beav. 505 ; Taijlor v. Taijlor, 3 1). M. & G. 
 190 ; and see also Fitch v. Webber, 6 Hare, 145. 
 (k) 10 Ch. D. 172.
 
 1--2 CONSTRUCTIVE TRUSTS. 
 
 Art. 23. of the will, and the trust takes effect, and there is an 
 ultimate beneficial interest undisposed of, that undisposed-of 
 interest goes to the heir. If, on the other hand, it is a con- 
 version of personal estate into real estate, and there is an 
 ultimate limitation which fails of taking effect, the interest 
 Avhich fails results for the benefit of the persons entitled to 
 the personal estate ; that is, the persons who take under 
 the Statute of Distributions as next of kin (I). Their right 
 to the residue of the personal estate is a statutory right 
 independent of ths will. 
 
 Illusteatioxs of Pakageaph (3). 
 
 How the 1. It is frequently an important question as to what 
 
 whom con- nature property directed to be converted assumes in the 
 verted pro- hands of persons to whom it results. For instance, if, by a 
 holds i\*^^" ^^ y^i^, real estate be directed to be sold, and is actually sold, 
 and the 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, 
 does it devolve on liis 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 personalt}'. 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 which 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 (m). This view was, however, scouted by Jessel, M.E., 
 and finally overruled by the Court of Appeal, in the case of 
 Citrtcis V, Worninld (n). The Master of the Eolls 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 answer is, he takes it 
 
 {/) Cor/rm V. S/f/ihniK, ."> L. J. (N.s. ) Cli. 17; Bective v. Hodgson, 
 10 H. L. V. (mO. 
 
 (m) Hi 1/iioIiIs v. (lodlcCy Joliiis. .OSG (overruled). 
 (n) 10 Oil. D. 172.
 
 TO WHOM PROPERTY RESULTS. 123 
 
 ■as he finch it. If the heir-at-law becomes entitled to it in Art. 23. 
 the shape of personal estate, and dies, there is no equitable 
 reconverson as between his real and personal representatives ; 
 .and consequently his executor takes it as part 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 con- 
 verted 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 Lord 
 Justice James, in the Court of Appeal, said: "With all 
 deference to the judgment of Lord Hatherley in Reynolds v. 
 Godlee (o), it is impossible, I think, to arrive at any other 
 •conclusion than that at which the Master of the Eolls has 
 arrived. It was settled by Gocjan v. Stephens (p), 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 you trace property into a man, there is no equity 
 between his different classes of representatives 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 recon- 
 verted 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 " 
 
 2. The broad statement by the late Master of the Eolls in immaterial 
 Citrteis v. Wormald (quoted in the last illustration), that the that property 
 party to whom property results " takes it as he finds it, is converted 
 :apt to mislead the unwary. It would be more accurate to say i* i^ otight 
 that he takes it as he ought to find it. That is to say, if the 
 trust for conversion loholhj fails, he takes it as unconverted ; 
 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 {q) ), he takes it as converted, and 
 
 (o) Uhi supra. (p) 5 L. J. (x.s.) Ch. 17. 
 
 iq) Clarke v. FranUin, 4 Kay & J. 257.
 
 124 
 
 CONSTEUCTIVE TRUSTS. 
 
 Art. 23. 
 
 Same rules 
 applicable t( 
 instruments 
 inter Hros. 
 
 it devolves accordingly, notwithstanding that in point of fact 
 the conversion is not, as it ought to be, carried out in accor- 
 dance with the trust (r). A learned reviewer of the last 
 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 (s). With great respect, however, and 
 after full consideration, the present waiter still remains of 
 opinion that the decision of the late Mr. Justice Chitty in 
 Be Bicherson, Scales v. Heylioe (r), is as applicable to- 
 personal estate as to real estate. 
 
 3. It must be pointed out that precisely the same rule 
 applies w^aere property results on failure of trusts created by 
 instrument inter vivos. As has been pointed out above, 
 such property results to the settlor in the first instance ; but 
 the character in which he retains it is determined by pre- 
 cisely the same principles as have been indicated in the last 
 illustration. That is to say, 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 where there 
 has been a total failure of the objects for which conversion 
 was directed, it results to the settlor in its unconverted 
 form, and so devolves. 
 
 Mere power 
 to convert. 
 
 i. The reader must be warned that a mere power to 
 convert, as distinguished from an imperative trust, does not 
 effect any conversion (t). But if it be exercised, the pro- 
 perty will then be converted, unless there be a trust 
 declared of the proceeds sufficient to reconvert it {ii), which 
 is always a question of construction (.r). 
 
 {r) Be liichbrson, Sra/a v. Ilcyhoe, [1892] 1 Ch. .379, and cases there 
 citcrl. 
 
 (v) Law Notes, June, 1894. 
 
 (/) F/Hr/wr V. A.shlriinDr, 1 Wli. & Tu. 327. 
 
 (//) I)(. lic.diu-oir V. 7>e Jltancoir, 3 H. L. C. 524; Greenivay v. 
 (Irditvdy, 29 L. J. Ch. GO). 
 
 (x) \\'liero tliere is ii trust to re-invest the proceeds in real or lecbse- 
 Ao/rf estate. See /.*' Ilinl, /'i/nnni v. J'/'fiiidii, |1S!»2J 1 Ch. 279.
 
 ( 1'25 ) 
 
 CHAPTEK III. 
 
 CONSTRUCTIVE TRUSTS WHICH ARE NOT 
 RESULTING. 
 
 ART. PAGE 
 
 24. — Constructive Trusts of Profits made hy Persons in Fiduciary 
 
 Positions 125 
 
 25. — Constructive Trusts where Equitable and Legal Estates are 
 
 not united in the same Person - - - - - 128 
 
 Art. 24. — Constructive Trusts of Profits made hy 
 Persons in Fiduciarij 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. If he does so, 
 he will he constructive trustee of such profit for 
 the benefit of the persons equitably entitled to 
 the property. 
 
 Illustrations. 
 
 1. In the leading case of Sand ford v. KeecJi (a), a lessee Trustee 
 
 •of the profits of a market had devised the lease to a trustee [^"ew'iig 
 
 ^ lease to 
 
 for 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 ; but it was decreed by Lord King, that 
 
 (a) Sel. Ch. Ca. 61 ; and see ^e Morgan, Plllyrem v. Pilhjrem, 
 18 Ch. D. 93 ; and Brinton v. Lulham, 53 L. T. 9.
 
 126 
 
 CONSTRUCTIVE TRUSTS. 
 
 Art. 24. 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, fe^Y trust estates would be renewed to cestuis que 
 trust." 
 
 Profit made 
 h\' trustee. 
 
 Tenant for 
 life of lease- 
 holds re- 
 newing to 
 himself. 
 
 2. So where the solicitors 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 jurisdiction in the matter), intimated that 
 if a separate action were brought against the trustee he 
 would have no defence to it {b). 
 
 3. And 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 renew 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 {cl). And even where the lessor refuses to renew, the 
 tenant for life or his assigns cannot purchase the lessor's 
 interest for their own benefit, but will be considered as mere 
 trustees of it for the persons who would be entitled to the 
 leasehold interest if it had been renewed (c). In the recent 
 case of Longton v. Wilsby (/), Stirling, J., held that the 
 above cases must be restricted to leases w^here there was a 
 riglit of renewal either by custom or contract, but James v. 
 Dean (c), does not seem to have been cited, and his lord- 
 ship's decision does not seem to be consistent with the 
 judgment of Lord Eldon in that case. 
 
 Tenant for 4. And upon similar grounds, if a tenant for life accepts 
 
 lite receiving ^lonev in consideration of his allowing something to be 
 money in '' o >j 
 
 (/<) /.V Thorpe, Vipout v. A'dt/r/ifc, [lS91]2Ch. 360. . 
 
 (r) Jumtn V. Dean, 15 Ves. 'I'M). 
 
 (d) Kyrt V. Dolphin, 2 15. & B. 290 ; Mill v. Hill, 3 H. L. C. 828 ; 
 Yem V. Edii-ai-ds, 1 D. & J. 598 ; James v. Deane, .supra. The reader 
 ifl alHO referred to Jit Paijnt, Kihhlt v. Payne, 54 L. T. 840, and infra, 
 Art. 4(i. 
 
 («) lie Lord UnniUffh, 2G Ch. 1). 590 ; Phillips v. Phillips, 29 Ch. D. 
 673. 
 
 (/) 70 L. T. 770. Strangel}- omitted from the autiiorised repoi'ts.
 
 PEOFITS MADE BY PERSONS IN FIDUCIARY POSITIONS. 127 
 
 done which is prejudicial to the trust property (as, for Art. 24. 
 instance, the unopposed passage of an Act of ParHament '_ 
 sanctioning a railway), he will be a trustee of such money Inheri^auee 
 for all the persons interested under the settlement ((/). 
 
 5. The same principle applies to mortgagees (h), joint Other partial 
 tenants (t), partners (A;), and owners of land subject to a o"'i^^'''"- 
 charge (l). 
 
 6. Directors of a company cannot avail themselves of How far 
 their position to enter into beneficial contracts with the t^irectors 
 
 . , , - - and other 
 
 company [m) ; nor can tliey buy property, and then sell it agents are 
 to the company at an advanced price. Promoters of a constructive 
 company hold a fiduciary relation towards the company, profits 
 and cannot be allowed to retain a secret commission received 
 from the vendors of property which the company is formed 
 for the purpose of purchasing (h). Directors cannot receive 
 commissions from other parties on the sale of any of the 
 property of the company (o) ; and generally they cannot 
 deal for their own advantage with any part of the property 
 or shares of the company ( jj). 
 
 7. However, notwithstanding some dicta to the contrary. Profits made 
 it would seem that where profits are illegally made by '^y 'Agents, 
 agents, although they must give them up to their principals, 
 
 they are not always considered to be constructive trustees, 
 
 (y) Pole V. Pole, 2 Dr. & S. 420. 
 
 (/i) Riishwortli'H Case, Free. 13. 
 
 [i) Paliner v. Young, 1 Ver. 276. But dist. : Holmen v. William>>, 
 (1895) W. N. 116, where Romer, J., held, that one of several cestuis que 
 trusts wlio obtained a lease to himself of property previously leased to 
 his trustees, and forfeited by them, was not a constructive trustee for 
 the other cestuis que trusts. 
 
 (Ic) Featherstonhaugh v. Fen wick, 17 Ves. 311 ; Clegg v. Fishwiclc, 
 
 1 M. & G. 294 ; Bell. v. Barnetf, 21 W. R. 119 ; but as" to partners, see 
 Dean v. McDowell, 8 Ch. D. 345 ; and Piddocke v. Burt, [1894] 1 Ch. 
 343, where a partner was held not to be a constructive trustee. 
 
 (/) Jackson v. Welsh, L. & G. temp. Plunk. 346 ; Winslow v. Tiglie, 
 
 2 B. & B. 195 ; Webb v. Lugar, 2 Y. & C. 247. 
 
 (9?i) Great Luxembourg Pail. Co. v. Magnay, 25 Beav. 586 ; Aberdeen 
 Bail. Co. V. Blackie, 1 Macq. 461 ; Flanagan v. Great Western Bail. 
 Co., 19 L. T. (N.s.)345. 
 
 (?() Hitchen-s v. Congreve, 1 R. & M. 150 ; Faivcett v. Whitehouse, 
 ibid., 182 ; Beck v. Kantoroiuicz, 3 Kay & J. 230 ; Baqnall v. Carlton, 
 6 Ch. D. 371 ; Emma Silver Mining Co. v. Grant, 11 Ch. D. 918. 
 
 (o) Gaskell v. ChamJiers, 26 Beav. 360. 
 
 ( p ) York, etc. Co. v. Hudson, 16 Beav. 485.
 
 VA8 
 
 CONSTRUCTIVE TRUSTS. 
 
 Art. 24. so as to give the principals the right of following the profits 
 if converted into otlier kinds of property. This question is 
 considered more fully, infra, p. 131. 
 
 jSolicitor 
 buying from 
 •client. 
 
 8. A solicitor who purchases property from a client must, 
 if the sale be impeached, not only show that he gave full 
 value for it, but also that the client was actually benefited 
 by the transaction (g). And persons who subsequently 
 purchase from the solicitor with notice of the transaction 
 are under a similar liability (r). 
 
 Art. 25. — Constructive Trusts luliere Equitable 
 and Legal 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 (s). 
 
 Kelation of 
 veiulor and 
 purchaser 
 ix-fore com- 
 ])l<tion. 
 
 Illustrations. 
 
 1. Thus, where a binding contract is entered into between 
 two persons for the sale of property by one to the other, 
 then, in the words of Lord Cairns, in Shmo v. Foster {t), 
 " There cannot be the slightest doubt of the relation sub- 
 sisting in the eye of a court of equity between the vendor 
 and the purchaser. The vendor is a trustee of the property 
 
 {7) And see also infra. Art. 46. 
 
 (r) To/ilmni v. Spcurcr, 2 .Jur. (n.s. ) 86.'). 
 
 (h) This article, d(ml)tless, includes all those relating to constructive 
 trusts wliicli have jjreccdcd it ; hut as it wouhl he a quite endless task 
 to cimrncratc! evci v Uiiid of (•(iiisli'uctive trust (for they are, as has heen 
 truly said, contermiMous witii e(|uity jurisprudence), 1 have thought it 
 lietter to call special attention to those classes which are most impor- 
 tant, and to l)iing all otluirs within one sweeping general clause. 
 
 (I) .0 H. L. '.V.\H; /■Jar/ 0/ K'jnioiil v. ,S'w(7/i, Ch. D. 46!).
 
 GENERAL EQUITIES. lli-) 
 
 for the purchaser ; the purchaser is the real beneficial Art. 25. 
 owner in the eye of a court of equity of the property ; 
 subject only to this observation, that the vendor (vvhom 
 
 1 have called a trustee) is not a mere dormant trustee ; he 
 is a trustee having a personal and substantial interest in the 
 property, a right to protect that interest, and ^.n 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 paramount 
 right of the vendor and trustee to protect his own interest 
 as vendor of the property." He is, however, only trustee 
 liro tanto, and his duties are strictly matter of contract {u). 
 
 2. In the converse case, where the vendor has actually Vendor's 
 conveyed the property, but the purchaser has not paid the cmiveyance 
 purchase-money, or has only paid part of it, the vendor has 
 
 a lien upon the property for the unpaid portion {x) ; and 
 the purchaser will hold the estate as a trustee pro tanto, 
 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 {y). A mere collateral security will not, however, 
 suffice {z) ; but where it appears that a bond, covenant, 
 mortgage or annuity was itself the actual consideration — 
 the thing bargained for — and not merely a collateral security 
 for the purchase-money (a), there will be no lien, and 
 consequently no trust. 
 
 3. It need scarcely be pointed out that a mortgagor, in E<iuitable 
 the case of an equitable mortgage, is pro tanto a trustee for "'"''tgages. 
 the mortgagee. For even where there is no written memo- 
 randum, a deposit of title deeds is of itself evidence of an 
 
 («) See per Lord Westbury in Knox v. Gye, L. R. 5 H. L. 656; 
 distinguished in Betjemann v. Betjemann, [1895] 2 Ch. 474 ; but see 
 Earl of Egmont v. Smith, supra. 
 
 (x) Mackreth v. Symmons, 2 Wh. & Tu. 926. 
 
 (y) Ibid. 
 
 (z) Collins V. Collins, 31 Beav. 346 ; Hughes v. Kearney, 1 Sch. & L. 
 134. 
 
 (a) Buckland v. Pochnell, 13 Sim. 499 ; Parrott v. Sweetland, 
 
 3 My. & K. 655; Dixon v. Gayfere, 21 Beav. 118 ; Dyke v. Kendall, 
 
 2 D. M. & G. 209; and see Re Brentwood Brick and Coal Co., 
 
 4 Ch. D. 562.
 
 180 
 
 CONSTRUCTIVE TRUSTS. 
 
 Devolution 
 of mortgaged 
 propert}-. 
 
 Mortgagee 
 in possession. 
 
 Art. 25. agreement for the mortgage of the property (b) ; 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. 
 
 4. Upon the death of a mortgagee, the mortgaged pro- 
 perty (if assured to him in fee) descended at law before 
 1882 to his heir ; but being in reality only a security 
 for money, it equitably belonged to his personal repre- 
 sentatives, and the heir was, therefore, held to be a 
 mere trustee for the administrators or executors of the 
 mortgagee (c). 
 
 5. So a mortgagee in possession is constructively a trustee 
 of the rents and profits, and bound to apply them in a due 
 course of administration (d). But there has been consider- 
 able 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 con- 
 sent (e) ; but this decision has been questioned, and, it is 
 respectfully apprehended, rightly so (/). In another case, 
 it was said that a mortgagee in possession who, after the 
 mortgagor's death, bought up the widow's right to dower, 
 was obliged to hold it in trust for the heir, upon his paying 
 the purchase-money (g) ; and although this case has called 
 forth much comment {h), it is difficult to distinguish it in 
 principle from the class of cases considered in the last 
 article. 
 
 Limited 5, Another important illustration of the rule now^ under 
 
 hr'off cliarge consideration occurs when a limited owner {e.g. a tenant for 
 
 life) pays off a specific (i) incumbrance out of his own 
 
 {b) A'H.s-.se« V. i?H.v.ve//, 2 Wh. & Tu. 276 ; Ex parte Wrii/ht, 19 Ves.25S ; 
 Pryce v. /innj, 2 Dr. 42 ; Ftn-is v. Mn'/im, 2 Sm. & Gif. 378 ; Ex parte 
 Mo-iH, .S D. & S. 599. 
 
 (c) ThonihoroiKjh v. Baler, 2 W'h. & Tu. 1 ; but see 37 & 38 Vict, 
 c. 78, MS. 4, 5. 
 
 (fl) Lew. 169 ; Copprinij v. Cooke, 1 Ver. 270 ; Benthain v. Haincourt, 
 Pr. Ch. 30; I'arkerx. Catrraft, 6Madd. 11 ; Hnghe-sx. Williams, 12Ves. 
 493 ; Maddnrk-H v. Wrtn, 2 (JIi. Rep. 109. 
 
 (t) Vtnahlis V. Foyle, 1 Ch. C;is. 3. 
 
 (f) Lew. 169 ; and consider HiiKj/iain v. Lee, 15 Sim. 400. 
 
 {(f) Baldirin v. Baunitttr, cited in I/ohin-^oii. v. Petf, 3 P. W. 251. 
 
 Oi) Dohmn V. Land, 8 llarc, 3.30; Arnold v. (larnur, 2V\\. 231 ; 
 AlnHltiton V. Clarke, 3 Dr. 3. 
 
 (0 See Morlii/ v JSIorhy, 25 L. J. Cii. 7.
 
 GENERAL EQUITIES. 131 
 
 money. In such a case (in the absence of evidence showing Art. 25. 
 an intention to extinguish the incumbrance) he is held to be, ^ 
 
 in equity, in the position of a transferee of the incumbrance, anJ"or^caila 
 notwithstanding that he took an ordinary reconveyance (k) ; on shares. 
 and, on his death, the remainderman holds the legal estate 
 subject to the equitable lien or charge so created (l). 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 (m). It would seem, however, that where 
 income has been expended in improving property, the court 
 (apart from the Improvement of Land and the Settled Land 
 Acts) has no jurisdiction to declare the expenditure a charge 
 on the property (n). 
 
 7. Considerable difificulty frequently arises with regard to Confidential 
 the question whether an agent is a trustee for his principal. ^°*^" ^" 
 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 (o), or 
 otherwise, then he is a trustee of that property ( _2j) . 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 (q). As Chitty, J., said 
 in Piddocke v. ^zirt (q), " it is not every agent who is 
 
 (k) Lord Gifford v. Lord FUzhardinge, [1S99] 2 Ch. 32. 
 
 (I) Redington v. Redington, 1 Ba. & B. 131 ; St. Paul v. Dudley, 
 15 Ves. 172 ; Drinkwattr v. Coombe, 2 S. & St. 340. As to case where 
 tenant for life of a lease for lives purchases the reversion and settles it, 
 see I/saac v. Wall, 6 Ch. D. 706 ; and, as to evidence showing contrary 
 intention, see Astley v. Milles, 1 Sim. 298 ; Tyrwhitt v. Tyrwhitt, 
 32 Beav. 244. 
 
 (m) Todd v. 3Ioorhouse, 19 Eq. 69. 
 
 (n) See Floyer v. Bankes, 8 Eq. 115. 
 
 (o) Re Tidd, Tidd v. Overell, [1893] 3 Ch. 154. 
 
 ( p) See Biirdick v. Garrick, 5 Ch. App. 233 ; Crowther v. Elgood, 
 34 Ch. D. 691 ; Doohy v. WaUon, 39 Ch. D. 178. 
 
 (q) Piddocke v. Bart, [1894] 1 Ch. .343. 
 
 K 2
 
 132 CONSTRUCTIVE TRUSTS. 
 
 Art. 25. fiduciary." Thus a partner who collected debts due to the 
 firm, and misapplied the money so collected, was held not to 
 be liable as a trustee. So directors of a company, although 
 " they have been always considered and treated as trustees 
 of money ivliich comes to their liancls or wliicli is under their 
 control," {r) are not liable as trustees for carelessness, — as for 
 instance, for accepting shares in another company in lieu of 
 cash (r). But on the other hand, an auctioneer is a trustee 
 of a deposit paid to him (s) ; so is a broker of stock handed 
 to him for sale {t). A solicitor to whom money is handed 
 for investment {u), a solicitor of a mortgagee who receives 
 purchase-moneys arising under an exercise of his client's 
 power of sale [x), land agents, bailiffs, and receivers are all 
 fiduciary agents [y). 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 (s). 
 
 Partnership 8« So, again, where the plaintiff was induced by fraud of 
 liens. the defendant to purchase a share of his business, and to 
 
 enter into partnership with him, and judgment was given 
 for the rescission 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 (a). 
 
 So where one partner wrongfully sells the partnership 
 securities, he is a trustee of the proceeds (h). 
 
 (r) Per Lixdley, L.J., Re Lands Allotment Co., [1894] 1 Ch., at 
 p. 6.31 ; and see Re Skarpe, Ma-ionic, etc. Co. v. Sharpe, [1892J 
 1 Ch. 154. 
 
 (.s) Crointher v. Eli/ood, supra. 
 
 {/) Exjjarte Coohe, 4 CIi. 1). 123. 
 
 (?<) Jinrdirk v. (larrirk, 5 (Jli. App. 233 ; Doohi/ v. ]V(t/sou, supra ; 
 Soar V. Ashwell, [l,S<t3| 2 (,). li. 3!)0. 
 
 (x) Re Bell, Lake v. Rill, 34 Cli. D. 462. 
 
 (y) M arris v. Ingram, 13Cli. 1). 338. 
 
 (:;) Re Jlindmarsh, 1 Dr. & Sni. 129 ; Bnrdirk v. (larriek, sii})ra : 
 IVntsoii v. Woodman, 20 K(\. 721. 
 
 {a) Ml/rock v. Rru/son, 13 Cli. I). 3S4 ; ami as to sale of land 
 • ihtaiiM.'d l)y fraud, see Rost v. Wafsoii, 10 H. L. Cas. 672; and see also 
 Al'i r'liii'ni Iroiiirorks v. Wirk(nj<, 4 VAy. App. 101. 
 
 (h) Kendal v. Wood, L. R. 6 \i\. 248.
 
 GENERAL EQUITIES. 133 
 
 9. Upon similar principles, a court of equity converts a Art, 25. 
 party who has obtained property by fraud " into a trustee p , ^ 
 for the party who is injured by that fraud (c). But, that aciiuired l)y 
 being a jurisdiction founded on personal fraud, it is incum- fi"'^"^- 
 bent on the court to see that a fraud, or mains animus, is 
 
 proved by the clearest and most indisputable evidence ; it 
 is impossible to supply presumption in the place of 
 proof" {d). 
 
 10. So where the shareholders of a company receive Capital of 
 capital ultra vires, they are trustees of it for the com- a'istnbuted 
 pany (e) ; and a fortiori the directors are liable as trustees ultra vire-s. 
 who have misapplied trust funds (/). 
 
 11. So, again, where a stranger to a trust receives money Trust funds 
 
 or property from the trustee which he knows (1) to be part ^'^'^fi^'*^^ '^y 
 . ■, -, , ^ a, stranger. 
 
 of the 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 (g). This 
 question of the responsibility of third parties as con- 
 structive trustees is more fully discussed in Division IV., 
 Chap. III., infra. 
 
 (c) See Booth v. Turk, 16 Eq. 182 ; Rochefoucauld v. Boustead, [1897] 
 1 Ch. 196. 
 
 {d) Per Lord Westbury in McCormicJc v. Grogan, L. R. 4 H. L. 88. 
 As to a person who has by fraud prevented a will being made in 
 plaintifi's favour, -see Dixon v. Olmiwi, 1 Cox, 414 ; and see also as to 
 gifts made under undue influence to fiduciary persons, Art. 14, .supra. 
 
 (e) Rmsell v. Wakefield, etc. Co. , 20 Eq. 474 ; Moxham v. Grant, 
 [1900] 1 Q. B. 92. 
 
 (/) Re Sharpe, Masonic, etc. Co. v. Sharpe, [1892] 1 Ch. 1.54. 
 
 ((j) Barnes v. Addy, 9 Ch. App. 244 ; Re Spencer, 51 L. J. Ch. 271 ; 
 Re Blundell, Blundell v. Blundell, 40 Ch. D., at p. 381 ; Soar v. 
 Ashiuell, [1893] 2 Q. B. 390; Thomson v Clydesdale Bank, [1893] 
 A. C. 282 ; Re Barney, Barney v. Barney, [1892] 2 Ch. 265.
 
 DIVISION IV. 
 
 THE ADMINISTRATION OF 
 A TRUST. 
 
 CHAPTER PAGE 
 
 I. — Disclaimer and Acceptance of Trusts - - 134 
 
 II. — Tlie Estate of the Trustee, and its Incidents - 139 
 
 m.—The Trustee's Duties ----- 154 
 
 IV.— The Poicers of the Trustee - - - - 256 
 
 V. — Poicer of the Beneficiaries . . . . 275 
 
 YI. — The Death, Betirement, or Bemoval of a Trustee, 
 
 and the Effect thereof in relation to the Office 
 
 of Trustee " - 284 
 
 \ll.— The Bights of Trustees ----- 320 
 
 CHAPTEK I. 
 
 DISCLAIMER AND ACCEPTANCE OF TRUSTS. 
 
 ART. PAGE 
 
 26. — Disclaimer of a Trust ....... 134 
 
 27. — Acceptance of a Trust 136 
 
 Akt. 26. — Disclaimer of a Trust. 
 
 No one is bound to accept the office of 
 trustee (c/). Both the office and the estate may 
 be disclaimed before acceptance, in the case of a 
 married woman by deed(i), and in other cases 
 by deed or by conduct tantamount to a dis- 
 
 (rt) Rohimon v. /^/^ -J \\\\. & Tu. 606. 
 (h) 8 & U Vict. f. 106, s. 7.
 
 DISCLAIMER OP A TRUST. 135 
 
 ■claimer (c) . The disclaimer should be made Art. 26. 
 within a reasonable period, having regard to the 
 circmnstances of the particular case {d). Part of 
 a trust cannot be disclaimed if other part is 
 accepted (e). 
 
 Illustrations. 
 
 1. Thus, even though a person may have agreed in the Consent to 
 lifetime of a testator to be his executor, he is still at hberty yi'lertake 
 to recede from his promise at any time before proving the not binding 
 will (/). 
 
 2. A prudent man will, of course, always disclaim by deed, Methods of 
 in order that there may be no question of the fact ; but a f'"^'^l'i'i"""o- 
 disclaimer by counsel at the bar, or even by conduct incon- 
 sistent with acceptance, is sufficient (r/). For instance, in 
 
 Stacey v. Elj^h (h), 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, ajid 
 the heir-at-lato in wJiom the estate could only vest by the 
 disclaimer of the trust. It was held, under these circum- 
 stances, that he had by his conduct disclaimed the office 
 and estate of trustee under the will. 
 
 3. In Be Ellison's Trusts (i), Sir W. Page Wood, V.-C, Deedofdis 
 expressed some doubt whether a freehold estate could be 
 disclaimed by parol, or otherwise than by deed. His 
 honour's attention does not appear, however, to have been 
 called to Stacey v. Elph,, and in the more recent case of 
 Be Gordon, Gordon v. Boherts [h), where real estate was 
 devised to trustees upon trust to sell and to form a mixed 
 
 (c) Stacey v. Elph, 1 M. & K. 199 ; Towmon v. Tkkell, 3 B. & A. 31 ; 
 Beghie v. Crook, 2 B. N. C. 70 ; Bingham v. Clanmorris, 2 Moll. 253 ; 
 and i?e Birchall, Birchall v. Ashfoii, 40 Ch. D. 436. 
 
 (d) See Doe v. Harris, 16 M. & W. 522 ; Paddon v. Richardson, 
 1 D. M. & G. 563 ; James v. Frearson, 1 Y. & C. C. C. 370. 
 
 (e) Re Lord and Fnllerton, [1896] 1 Ch. 228. 
 (./■) Doyle V. Blake, 2 Sch. & L. 239. 
 
 (;/) Foster v. Dawber, 8 W. R. 646. (i) 2 Jur. (n.s.) 262. 
 
 (h) Supra. (k) 6 Ch. 1). 531. 
 
 claimer not 
 necessary.
 
 136 THE ADMINISTRATION OF A TRUST. 
 
 Art. 26. fund consisting of the proceeds of such sale and of the 
 testator's personal estate, and the trustees were also 
 nominated executors, and renounced probate, and never 
 acted in the trusts, it was held by Sir George Jessel, M.E.,, 
 that the renunciation of probate, coupled with the fact that 
 the trustees had never assumed to act as such, was con- 
 clusive evidence of disclaimer. Lastly, in Be Birchall, 
 Bircliall V. Ashton (I), the Court of Appeal held that a 
 trustee had by conduct disclaimed the office, and that 
 having disclaimed the office, he must of necessity have also 
 disclaimed the estate. 
 
 Aet. 27. — Acceptance of a 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 {))i) ; or he may 
 do so by long acquiescence. 
 
 Illustrations. 
 
 Express |^ ^ trustee expressly accepts the office by executing the 
 
 settlement (7i), or by making an express declaration of his 
 assent (o). 
 
 Aoceptaiico 2. Permitting an action concerning the trust property to 
 
 1} acqui- j bi'ought in his name (v), or otherwise allowing the trust 
 cHconce. " ... 
 
 property to be dealt with in his name (q), is such an 
 
 acquiescence as will be construed to be an acceptance of 
 
 the office. 
 
 (/) 40 Ch. I). 4.36. (m) Spciicu, 918. 
 
 (;0 Ihirhridiic. v. Glai^Mc, 1 ('r. k V\\. i;}4. 
 
 (o) Dm V. Harris, 1(5 M. & W. .')17. 
 
 (p) Moiif/ord {Lord) v. ('iif/otjdv, 17 Vos. 485. 
 
 ((/) J amen v. frtar.tou , 1 \ . k. C. (J. C. 370.
 
 ACCEPTANCE OF A TRUST. 137 
 
 3. So, exercising any act of ownership, such as advertisinj^^ Art. 27. 
 the property for sale, giving notice to the tenants to pa)' 
 the rents to himself or an agent, or requesting the steward ^ e^jreise 
 of a manor to enrol a deed in relation to the trust property, of dominion, 
 is sufficient to constitute acceptance of a trust (r). 
 
 i. So, where the office of executor is clothed with certain Acceptance 
 trusts, or where the executor is also nominated the trustee probate"" *^*" 
 of real estate under a will, he is construed to have accepted 
 the office of trustee if he takes out probate to the will (s) . 
 And acceptance of the trusts of a will was, prior to 1882, 
 constructive acceptance of the office of trustee of estates, 
 devised thereby, of which the testator was trustee (t). But 
 now trust estates (except copyholds) cannot be so devised, 
 but vest in the executors virtute officii (u). 
 
 5. In Conyngliam v. Conyngham (x), one Coleman was Acceptance 
 appointed trustee of a will, but he never expressly accepted ^' ^°""^^^^' • 
 the appointment. One of the trusts was in respect of the 
 rents of a plantation then in lease to the testator's son. 
 Coleman acted as the 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 would not have acted as trustee, 
 to have expressly disclaimed, 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 {y) ; 
 
 (r) Bence, v. Gilpin, L. R. 3 Ex. 76. As to acceptance of executor- 
 ship by intermeddling, and its effect on subsequent devastavit by 
 administrator, see Doyle v. Blake, 2 Sch. & Lef. 281. 
 
 (s) Muck-low V. Fuller, Jac. 198 ; Ward v. Butler, 2 Moll. 533. 
 
 (t) Be Perry, 2 Curt. 655 ; Brooke v. Haynes, 6 Eq. 25. 
 
 (m) Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. 
 c. 41), s. 30. 
 
 (y) Staceyx. Elph, 1 M. & K. 199 ; Dove v. Everard, 1 R. & M. 231 ; 
 Lowry v. Fulton, 9 Sim. 115.
 
 138 THE ADMINISTEATION OF A TRUST. 
 
 Art. 27. nor (it has been said) will merely taking charge of a trust 
 until a new trustee can be found, be, of itself, a constructive 
 acceptance (z). But it would be highly dangerous, even if 
 this case were now followed, which seems doubtful. 
 
 6. In a recent 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 the 
 trustee with acceptance of the trustee (a). 
 
 Acceptance 7. But where a trustee, with notice of the trust, has 
 «ne *ce^ indulged in a passive acquiescence for some years, he will 
 
 be presumed to have accepted it, in the absence of any 
 
 satisfactory explanation (b). 
 
 (z) Evans v. John, 4 Beav. 35. 
 (a) Jago v. Jago, 68 L. T. 654. 
 
 (h) Wise V. Wise, 2 J. & Lat. 403 ; Re Uniacke, 1 J. & Lat. 1 ; 
 Re Needham, ib. 34.
 
 ( 139 ) 
 
 CHAPTEK II. 
 
 THE ESTATE OF THE TRUSTEE, AND ITS 
 INCIDENTS. 
 
 ART. PAGE 
 
 :28. — Gases in which the Trustee takes any Estate ... 139 
 
 .29. — The Quantity of Estate taken by the Trustee of Lands - 143 
 
 30. — Bankruptcy of the Trustee - - - - - -149 
 
 31. — The Incidents of the Trustee's Estate at Law . - - 150 
 
 ;32. — Trusteed Estate on Total Failure of Beneficiaries - - 152 
 
 Aet. 28. — Cases in tvliicli the Trustee taJces 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 Ids use, 
 or unless there be a clear intention 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 
 leasehold 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. 
 
 Illustrations. 
 
 1. Thus, where the legal estate in freeholds is limited to Trust to 
 
 T ,1 T T • , , , , >> permit bene- 
 
 trustees, and the words used are " m trust to pay to a flciary to 
 
 •specified person the rents and profits, there the trustees receive rents.
 
 140 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 28. 
 
 Trust to 
 permit bene- 
 ficiary to 
 receive net 
 rents. 
 
 Trust to pay 
 or permit 
 beneficiaiy 
 to receive. 
 
 take the legal estate, because they must receive before they 
 can 'p&y. 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 party beneficially entitled, the 
 purposes not requiring that it should remain in the 
 trustees (a). 
 
 2. Where, however, 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 gross rents, and after 
 payment of outgoings, to hand over the net rents to the 
 beneficiary [h). 
 
 3. Where 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 pay or 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 a recent case (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 precisely 
 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 
 cue the precedent of which is really applicable to other 
 cases. In most cases, tliere is sure to be a context which 
 displaces the conchision at whicli the court arrived in that 
 instance." The reader is thei'efore warned that Doe v. Biggs 
 
 (a) Ptr Parke, J., Barker v. Greenwood, 4 M. & W. 429; Doe d. 
 LiiircHUr V. yi/V/ys 2 Taunt. 109; Doe v. BoKon, 11 A. & E. 188. 
 
 (//) Bdrkar v. (JrKJunood, -siipj-a ; White v. Parker, 1 Bing. N. C. 
 'u'.\ ; Shajilnnd v. Smi/h, 1 Bio. C. C. 7o. 
 
 ('•) 2 'i'luint. 109; Jiabrv. While, 20 Eq. 100, 171. 
 
 ('/) AV; La.-<hmar, Moody v. Pevfold, | ISOl | 1 Ch. 258; and .see 
 lie 'I'avqucrai/, WiUamne and Landau, 20 Ch. D. 479.
 
 CASES IN WHICH TRUSTEE TAKES ANY ESTATE. 141 
 
 cannot be safely relied upon as a precedent. Nevertheless Art. 28. 
 it was recently followed by Stirling, J., in Re Adams and 
 Perry (e). 
 
 5, So, again, where the trustees are to exercise any Control or 
 control or discretion they take some estate. For instance, ^^^^^^g^^ggg"" "^ 
 where the beneficiary is empowered to give receipts for the 
 rents with the approbation oi the trustees (/), or the trust is 
 for the separate use of a married woman (in cases where the 
 Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), 
 does not apply), who consequently requires protection, the 
 trustees take the legal estate (g) ; at all events, where the 
 trust is created by will. But where it was created by deed 
 the common law courts, not recognizing the separate estate 
 of a feme covert, held that such a trust was a simple trust, 
 and therefore came within the Statute of Uses (h). Whether, 
 however, this would now be followed having regard to the 
 Judicature Acts seems more than questionable. It is, however, 
 apprehended that in cases to which the Married Women's 
 Property Act applies the trustee would now take no . legal 
 €state, because the power of the husband no longer exists. 
 
 5. Where property was devised to trustees charged with charge of 
 payment of debts, and subject thereto in trust for A., there, debts, 
 as the trustees were not directed to pay 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 since Lord St. Leonard's Act (22 & 23 Vict. c. 35, 
 s. 14), this might not be so, as in such cases that Act casts the 
 duty of selling the property on them. Anyhow they always 
 took the legal estate if they had to pay the debts (A:). 
 
 (e) [1899] 1 Ch. 554. 
 
 (/) Gregory v. Henderson, 4 Taunt. 772 ; and see also Davies to 
 Jones and Erans, 24 Ch. D. 190, where a legal estate was implied 
 without any devise to the trustees. But cf. Be Cameron, 26 Ch. T>. 19. 
 
 (;/) Harton v. Harton, 7 T. R. 652. But query whether this would 
 he so since the Married Women's Property Act, 1882. 
 
 (h) Williams v. Waters, 14 M. & W. 166 ; see Nash v. Allen, ' 
 1 H. & C. 167. 
 
 (j) Kenrich v. Lord W. Beauclerc, 3 B. & P. 175. 
 
 (k) Smith V. Smith, 11 C. B. (n.s.) 121; Marshall v. Gingell, 
 21 Ch. D. 790 ; and see as to what amounts to a direction to the 
 trustees to pay debts, Spence v. Spence, 10 W. R. 605 ; Creaton v. 
 Creaton, 3 Sm. & G. 386 ; and Re Brooke, Brooke v. Brooh, [1894] 
 1 Ch. 43.
 
 142 
 
 THE ADMIXISTEATIOX OF A TRUST. 
 
 Art. 28. 
 
 Freeholds or 
 copyholds in 
 one trust. 
 
 6. In Houston v. Hughes {I), it was held that (notwith- 
 standing the Statute of Uses), under a devise of freeholds^ 
 and eop5^holds to A. and his heirs, in trust for B. and his 
 heirs, the circumstance that A. took an estate in the copy- 
 holds 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 strictlv. 
 
 Devise to the 
 use of 
 trustees. 
 
 7. So, where lands are devised unto and to the use of 
 trustees in trust for B., the trustees take the legal estate 
 irrespective of any active trust (n). 
 
 Trust to 
 convey to 
 beneficiaries. 
 
 8. Again, even where the active trust is of a trivial 
 description, yet, if it implies 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 convey 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). 
 
 Power of 9, A devise to trustees upon trust for A. for life, with 
 
 trust?J^° ° remainder to B. in fee, followed by a poicer to sell, lease, or 
 mortgage, vests the legal estate in the trustees, for the 
 exercise of the power might become an active duty [p). 
 
 (I) 6 B. & C. 403. 
 
 (»n) 20 llq. 166; approved by Stirling, J., in Be Toicnsend's 
 Contract, [1895] 1 Ch. 716. 
 
 (n) Dot v. Field, 2 B. & Ad. 564. 
 
 (o) Dot d. Shtlley v. Edlin, 4 A. & E. 582 ; Doe d. Noble v. Bolton, 
 11 A. & E. 188; Van Grulten v. Foxwell, [1897] A. C. 658. Even 
 where the tenant for life is to receive the rents, Keen v. Deardon, 
 8 East, 248. 
 
 (yo) Watson V. Pearson, 2 E.\ch. 581 ; Doe d. Cadogan v. Ewart, 
 7 A. & E. 636.
 
 QUANTITY OF ESTATE TAKEN BY TRUSTEE OF LANDS. 14{$ 
 
 Art 29 
 Aet. 29. — Tlie Quant it jj of Estate tahen by 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 : 
 
 (1) If the settlement is a deed, it will be con- 
 
 strued 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 (^), un- 
 less a strict construction would lead to 
 an inconsistency {r). 
 
 (2) If the settlement is a will dated before the 
 
 Wills Act (1 Vict. c. 26), the legal estate 
 given to a trustee will be enlarged or 
 diminished 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 (s). 
 
 (3) If the settlement is a will executed since 
 
 the Wills Act, an indefinite devise to a 
 trustee 2^ yi aid facie passes the fee simple, 
 or other the whole estate of the testator ; 
 and if the trusts by their nature extend 
 
 (g) Cooper v. Kynock, 7 Ch. App. 398 ; Blaker v. Anscomhe, 1 B. & 
 P. N. R. 25 ; Venables v. Morris, 7 T. R. 342 ; Wykham v. Wykham, 
 
 18 Ves. 395, per Eldon ; Colmore v. Tyndall, 2 Y. & J. 605. If a 
 sufficient estate be not given to the trustee, it is conceived that it 
 would be ground for rectification (see Rt Bird, 3 Ch. D. 214). 
 
 (r) Curtis v. Price, 12 Ves. 89 ; Beaumont v. Marquis of Salisbury, 
 
 19 Beav. 198. 
 
 (s) CordaWs Case, Cro. Eliz. 316 ; Doe v. Simpson, 5 East, 162 ; 
 Acklandv. Lutley, 9 A. & E. 879 ; Heardson v. Williainson, 1 Kee. 33 ; 
 Doe v. Nichols, 1 B. & C. 336 ; Watson v. Pearson, 2 Ex. 581 ; Bush v. 
 Allen, 5 Mod. 63 ; Doe v. Horn/ray, 6 A. & E. 206.
 
 144 THE ADMINISTEATION OF A TRUST. 
 
 ■A-rt. 29. over an indefinite period, that presump- 
 
 tion 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 {t). 
 
 Illusteations of Paragraph (1). 
 
 <iit't by deed 1. In Colmore V. Tyndall{u), under a deed, lands were 
 
 to trustees limited to the use of A. for life, with remainder to the 
 
 and their . ' 
 
 heirs. use of B. and his heirs during the life of A., to support con- 
 
 tingent 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, 
 
 {t) Paragraph (3) of this article is intended and believed to give the 
 effect of ss. 30 and 31 of the Wills Act (1 Vict. c. 26). By the first of 
 these sections it is enacted, that where any real estate (other than or 
 not being a presentation to a chiirch) shall be devised to any trustee 
 or executor, such devise shall be construed to pass the fee simple, or 
 other the whole estate or interest which the testator had power to 
 dispose of by will, in such real estate, unless a definite terms of years 
 absolute or determinable, or an estate of freehold, shall be given to him 
 expressly or by implication. Section 31 enacts, that where any real 
 estate shall be devised to a trustee without any express limitation of 
 tiie estate to be taken by such trustee, and the beneficial interest in 
 such real estate, or in the surplus rents and pi-ofits thereof, shall not 
 be given to any person for life, or shall be given for life, but the jjur- 
 poses of the trust may continue beyond the life of sucli person, such 
 devise sliall be construed to vest in such trustee the fee simple or otiier 
 1 li(! wiiole legal estate whicii the testator had ])ower to dispose of by 
 will, and not an estate determinable when the pur])()ses of tlie trust 
 sliall be satisfied, liotli tliesc; s(M;ti()ns have been sul)jecte(l to much 
 criticism, and, strange and almost inci'edible as it may appear, it is 
 believed tiiat the I'cal in'story of the two sections is, tliat they were 
 (b'afted as alternative ones, but, by some carelessness, were both 
 allowed to remain in tlie Act wiien passed (see jK'.r Jesskl, M.R., 
 Fn inc. V. CIc.mtnl, IS (!h. I>. .')14). 'I'luMr meaning is by no means 
 clear ; but it is ajjpi'cliended tiiat tlieirell'ect is as above slated (see Tjcw. 
 217; Sliclford's K. I'. Stats. 432; 2 .lar. Wills, :V2I ; llawkin's Wills, 
 30). 
 
 (it) 2\ . k .1. (10.'); and see also ('oo/nr v. Ai/iiocic, 7 Ch. App. 398 ; 
 and /,'<. Whlli, and llimlli, 7 Cii. I). 201.
 
 QUANTITY OF ESTATE TAKEN BY TRUSTEE OF LANDS. 145 
 
 remainder to the said B, and his heirs (without saying Art. 29. 
 
 during the hfe 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 j;?w autre vie. But the court held that it 
 
 was not a sufficient ground for restricting an estate limited 
 
 by deed to a trustee and his heirs, to an estate for life, 
 
 that the estate given to the trustee seemed to be larger 
 
 than was essential to its purpose. 
 
 2. But even in a deed, where there are limitations which. Inconsistent 
 on a strict construction, would be inconsistent and repug- limitations, 
 nant, the court will, by supplying obviously omitted words, 
 endeavour to carry out the intention. Thus in Curtis v. 
 Price (x), 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 main- 
 tenance of the children of M. and E. ; with remainder, after 
 the decease of the survivor of M. and E., to the tcse 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 inconsistent with an intention to give them 
 the fee, the limitation to them and their heirs must be cut 
 down to an estate during the life of E. 
 
 Illustrations of Paeagkaphs (2) and (3). 
 
 1. If the limitations stated in the first illustration on p. 144 Gift by will 
 had been declared by a will, whether executed before or t™«tees 
 since the Wills Act, 1837 (1 Vict. c. 26), instead of by a deed, heirs, 
 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 words of inheritance, only 
 
 (x) 12 Ves. 89; and see Beaumont v. Marqid>i of Salisbury , 19 Beav. 
 198.
 
 146 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 29. take an estate inir autre vie (viz., during A.'s life) ; for the 
 active trust reposed in them ends with the hfe of A., and 
 consequently the purposes of their trust do not require them 
 to take a larger estate (?/). 
 
 Larger estate 2. Nor will the court imply a larger estate (where it is 
 not implied ^^^^ necessary to carry out the definite tmsts of the will), on 
 
 to rGctiiv i/ «/ ' ' 
 
 testator's the ground that by doing so effect would incidentally be 
 mistake. 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, wath 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 {z). 
 
 Estate in 
 trustee to 
 preserve 
 contingent 
 remainder 
 not implied. 
 
 Direction to 
 pay rents 
 to married 
 women. 
 
 Trusts 
 rc«|uiring a 
 fee sinipl(; 
 imply that 
 cHtate. 
 
 3. 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 {a). 
 
 4. On the other hand, where, by will, the rents of certain 
 lauds (which are not expressly devised to anyone) 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 an estate in the land as will enable them 
 to execute the trust (/;), viz., an estate pur autre vie. 
 
 5. So if land be devised to trustees without any words of 
 limitation by a will executed since the Wills Act, 1837 
 
 {?/) Blaijraic v. /l/ittjr(i.r(i, 4 Kx. S.TO ; Wa/soti v. Pearson, 2 Kx. 5Sl ; 
 Dot V. (J'ife, 7 Kx. G7"). 
 
 (;:) Xa-sh v. ConUs, :i 15. & Ad. 839 ; Haddes/ei/ v. Adams,22 Beav. 26(5. 
 
 (a) CnnlifJ'ii v. Hranrhi r, 3 Cli. J). 39.3, and cases there cited ; 
 FcMiwi V. Allan, 12 M. k. W. 279; Marshall v. GiiKjall, 21 CIi. 1). 790. 
 
 (h) /iii.ih V. Allen, T} Mod. ()3 ; wy/ qiiore since the Married Women's 
 Property Aet, iSS2 (4o &. 4(i Vict. c. 7'>), and rf. Illust. 4, j). \A\, supra.
 
 QUANTITY OP ESTATE TAKEN BY TRUSTEE OF LANDS. 147 
 
 (1 Vict. c. 26), and they are expressly directed to sell(c), or Art. 29. 
 impliedly authorised to do so (d) (as by a direction to pay 
 debts (e) ), whether certainly or contingently, or are autho- 
 rised to lease or to mortgage (/), or to allow maintenance 
 to infants during a period of suspended vesting (g), or to 
 do any other act which requires the complete control over 
 the property (h), 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, 1837, this would not have been so except 
 under a direction to sell (i) : 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 (k). 
 
 6. And so, too, the trustees will take the fee simple Clear inten- 
 
 where there is a clear intention to give it them, notwith- tionto vest 
 
 " . ' tee, altliough 
 
 standing that a less estate would certainly enable them to not required 
 
 perform the trust. Thus, if lands be devised unto and to ^'^^' t™^*. 
 
 the use of A. and his heirs, in trust for B. and his heirs, A. 
 
 takes the legal fee simple (l), 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 during the life of A. {m) ; for the remainder 
 
 is not limited by way of trust. 
 
 7. So where there was a devise of freeholds and copyholds 
 to trustees and tlieir heirs, in trust for A. for life for her 
 separate use, and after her death upon trust to stand seised 
 
 (c) Shaw V. Weigh, 2 Str. 798 ; Bagshaw v. Spencer, 1 Ves. 144 ; 
 Watso7i V. Pearson, 2 Ex. 581 ; Croptoii v. Da vies, L. R. 4 C. P. 159. 
 
 (d) Gibson v. Lord Montfort, 1 Ves. sen. 485. 
 
 (e) Marshall v. (Hngell, supra ; Re Brooke, Brooke v. Brooke, [1894] 
 1 Cli. 43 ; but see Carlyon v. Trmcott, 20 Eq. 348. 
 
 (/) Doe d. Cado(/au v. Eicarf, 7 A. & E. 636; Watson x. Pearson, 
 supra; Doe v. WU'lan, 2 B. & Aid. 84; Re Eddd, 11 Eq. 559. 
 
 (g) Berry v. Berry. 7 Cli. D. 657 ; Re Tanqueray, Willaume and 
 Landau, 20 Ch. D. 4(35. 
 
 {h) ViUiers v. Villiers, 2 Atk. 72. 
 
 (i) Doe d. Cadogan v. Ewart, 7 A. & E. 636. 
 
 (k) See CordalVs Cast, Cro. P]liz. 316 ; Doe v. Simp'<on, 5 East, 162 ; 
 Arkland v. Lutley, 9 A. & E. 879 ; Heardson v. Williamson, 1 Kee. 33. 
 
 (/) Doe V. Field, 2 B. & Ad. 564. 
 
 [m) Doe d. Woodcock v. Barthropp, 5 Taunt. 382.
 
 148 
 
 THE ADMIXISTEATIOX OF A TRUST. 
 
 Art. 29. 
 
 Trust to 
 convey to 
 another. 
 
 of them for such persons as she should by 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 Stikling, 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 (n). 
 
 8. Where a testator devises property to trustees and their 
 heirs, upon trust to pay the net rents to A. for life, and 
 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 von dat qui non 
 liabet (6). 
 
 Recurring 
 trusts. 
 
 9. And where there are recurring trusts which requke 
 the 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 reczorring trusts of the gift of the legal 
 estate to the trustees, the legal estate is held to be in the 
 trustees throughout, and the intermediate estates are 
 equitable and not legal Q;). To show the importance of 
 this principle, it is well to refer to the leading case of 
 Harton v. Harton(j)). There the limitations were to 
 trustees, in trust for A. for life for her separate use, re- 
 mainder to the heirs of her body, remainder to B. for life 
 for her separate use, with remainder to the heirs of her 
 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 
 estates, the rule in Shelley's Case applied, and A. took an 
 
 {ii) Jie ToimmvrVs Contract, [1895] 1 Ch. 716. 
 
 (o) J)or (1. Shelhy v. Edlhi, 4 A. & E. .582; Doc d. Xohk v. Bolton^ 
 11 A. & E. 188. 
 
 { !>) I/nitoii V. Ilftrtoii, 7 'I'. Ii. (J.VJ ; Ilairkiwi v. Lnscomhe, 2 Sw. 
 :{'l| ; Jiroini v. Whileirny, 8 Il:uv, 14.3 ; Tolltr v. Atvood, 1.3 Q. B. 92!).
 
 QUANTITY OF ESTATE TAKEN BY TRUSTEE OF LANDS. l-t-J 
 
 •estate tail. Harton v. Harton has been lately followed by Art. 29. 
 the House of Lords in Van Grutten v. Foxivell{q), where " 
 
 precisely the same point arose. 
 
 10. In Colliery. Walters (r) a testator, by will dated before Trust of 
 
 the Wills Act, 1837 (1 Vict. c. 26), devised his estate to intlefinite 
 T 1 • 1 • -I n • 1 • tlnration. 
 
 trustees and their heirs, upon trust that they and their heirs 
 
 should stand seised of the same during the life of W. C, and 
 ralso 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 
 payment 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 Shelley's Case, suffered a 
 common recovery and barred the entail. Upon his right 
 to do this coming in question. Sir George Jessel, M.K., 
 held, that the trustees took the legal fee, and that con- 
 sequently, W. C, under the rule in Shelley's Case, took an 
 ■equitable estate tail. 
 
 Art. 30. — Banhruptcy 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 (s), notwith- 
 standing that it is property in his order and disposi- 
 tion at the commencement of the bankruptcy (t). 
 
 iq) [1897] A. C. 658. 
 
 (r) 17 Eq. 262. 
 
 (.v) Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 44. It may be 
 •conveniently mentioned here that on the conviction of a trustee the 
 trust property does not vest in the administrator appointed under the 
 Forfeiture Act, 1870 (33 & 34 Vict. c. 23). See Trustee Act, 1893 
 (56 & 57 Vict. c. 53), s. 48. 
 
 (0 Ex parte Barry, 17 Eq. 113; Ex parte Marsh, 1 Atk. 158. As 
 to constructive trustees, see Ex parte Pease, 19 Ves. 46, and Whitefield 
 V. Brand, 16 M. & W. 282.
 
 150 THE ADMINISTRATION OF A TRUST. 
 
 Art^O. ^ (^2) If he has converted it into money or other 
 property, and such money or other property 
 would be hable in the hands of the trustee, it 
 will also be liable in the case of the trustee's- 
 bankruptcy (;u). 
 
 The only part of this rule which requires any illustration 
 is sub-clause (2) ; but as the doctrine of following trust 
 property into other property into which it has been con- 
 verted is fully treated of in Division V., Chapter I. (infra), 
 the reader is referred to that chapter. 
 
 commence 
 actions. 
 
 Art. 31. — TJie Incidents of the Trustee's Estate 
 at Lata. 
 
 At law, the estate of the trustee is subject to 
 the same incidents as if he were the beneficial 
 owner, except where such incidents are modilied 
 by Act of Parliament. 
 
 Illustrations. 
 
 Power to 1. 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 [x). 
 
 CurteHy and 2. So, at law, the estate of the trustee in real property wa& 
 lialjle to curtesy (//), dower (a), and, if of copyhold tenure, to 
 frecbench (A) ; but of course the persons so taking could only 
 
 («) Fr/'/h V. Cur/ /a ltd, 'J Jl. & M. 417; /.'<; Ilallttl, KnatchbuU v. 
 Hiillc.n, \:\ Ch. I)., at J). 7n>. 
 
 (x) May V. Taylor, U M. & (J. L'lil ; and see R. S. C, 1883,0. 16, r. 8. 
 
 (?/) liinntU V. 'iJarix, 2 ]'. W. 319. 
 
 (a) Nod V. Jcvoii, Fro. 4.S ; Naxh v. I'rcslon, Cro. Car. 190. 
 
 (A) //iiilou V. /fill/on, 2 V'cs. son. (i.'W.
 
 INCIDENTS OF THE TRUSTEE'S ESTATE AT LAW. 151 
 
 take as trustees for those beneficially entitled (c) ; and since Art. 31. 
 the Conveyancing and Law of Property 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 (d). 
 
 3. So, again, trustees of copyholds who take an estate Trustees of 
 must be admitted by the lord of the manor on the customary ^^^^^J^l^i^g^^ 
 terms (e). admitted. 
 
 i. Where a debtor to the trust estate becomes bankrupt, Trustees 
 the trustee is the proper person to prove without the con- {^"^"T*^ '". .• 
 currence of the cestiii que trust (/), unless in the case of a 
 simple trust. Where it is as likely as not that the debtor 
 has paid the cesttti que trust direct, then it lies in the dis- 
 cretion of the judge to require the concurrence of the cestui 
 que trust (g). 
 
 5. The trustee of a private trust is, as legal owner, liable Trustee liable 
 to be rated in respect of the trust property (h). °^ rates. 
 
 6. If the trustee, in pursuance of the trust, carry on a Trustee of 
 business for the benefit of the cestui que trust, he will yet fi,J|j"e "^^^ 
 be personally liable to the creditors of the business (i), and creditors. 
 may be made a bankrupt {¥). 
 
 7. A trustee in whom the legal estate is vested is entitled Trustee 
 to the custody of the deeds {I) ; but the cestui que trusts are ^nstodv of 
 entitled, at all reasonable times, to inspect them {m). deeds. 
 
 (c) Noel V. Jeron, supra; Lloyd v. Lloyd. 4 Dr. & War. 354. 
 
 (d) 13 & 14 Vict. c. 60, s. 46 ; and see Trustee Act, 1893 (56 & 
 57 Vict. c. 53), s. 48. 
 
 (e) Wilson v. Boare, 2 B. & Ad. 350. 
 (/) Ex parte Green, 2 Dea. & Ch. 116. 
 
 (</) Ex parte Dubois, 1 Cox, 310; Ex parte Gray, 4 Dea. & Ch. 778. 
 
 {h) E. V. Sterry. 12 A. & E. 84 ; R. v. Stapleton, 4 B. & S. 629. 
 
 (^■) Farhall v. FarhaU, 7 Ch. App. 123 ; Owen v. Delamere, 15 Eq. 
 134. But of course he has a inght to indemity, as to which see Art. 64, 
 infra. 
 
 (k) Wightman v. Townroe, 1 M. & S. 412 ; Ex parte Garland, 10 Ves. 
 119 ; Farhall v. Farhall, supra. 
 
 (I) Evans v. Bicknell, 6 Ves. 174. 
 
 («i) Wynne v. Humherston, 27 Beav. 421.
 
 lo2 
 
 THE ADMIXISTRATION OF A TRUST. 
 
 Art. 31. 
 
 Not encitled 
 TO exercise 
 franchise. 
 
 8. On the other hand, the ordinary legal incident of 
 voting for members of ParUament does not belong to the 
 trustee in respect of the trust estate, as the Act 6 & 7 Vict, 
 c. 18, s. 74, confers that right on the beneficiaiy. 
 
 Art. 3-2. — Trustee's Estate on Total Failure 
 of Beneficiaries. 
 
 (1) WTiere a trust does not exhaust the whole 
 of the trust propert}^, and there is no one in 
 whose favour it can result, it is now held in trust 
 for the Crown {n). 
 
 (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 belonged to the 
 trustees in whom the legal estate in fee simple 
 was vested, absolutety(o). 
 
 Illustkatioxs. 
 
 Former kw 1. In the leading case of Burgess v. WJteate (o), the settlor 
 as to realty conveyed real estate unto and to the use of trustees, in trust 
 August, 18S4. for herseK, her heirs and assigns, to the intent that she 
 should appoint, and for no other use whatever. She sub- 
 sequently died -without having appointed, and without heii'S ; 
 and it was held that, there being holders of the legal estate 
 — namely, the trustees — the Crown could not claim by 
 escheat, and that the trustees (no person remaining who 
 could sue them in equity) retained, as the legal proprietors, 
 the beneficial interest also. 
 
 ill) As to personal estate, see Taylor v. Ilat/ijnrth, 14 Sim. S ; 
 MiflfUttoii V. Spictr, 1 B. C. C. 201 ; and as to real estate, see 47 & 
 48 Vict. c. 71, 8. 4. 
 
 (o) liurgew v. Wheale, 1 Etlen, 177 ; and Rt Lnshmar, Moody v 
 Peti/oid, [1891] 1 Cli. 258.
 
 trustee's estate on failure of beneficiaries. 153 
 
 2. But if the settlor in the last case had appointed or Art. 32. 
 
 'devised her equitable interest to C, in trust for purposes ~ 
 
 which could not take effect, then, as between the original l-^evise of 
 
 .IT equitable 
 
 trustees and C, the latter would be entitled to the property interest to 
 
 as the nominee under the will. The court would, as between a'^other set 
 
 those parties, only carry out the testator's directions, and 
 
 would not inquire how far the directions could be executed 
 
 in their integrity (i)). 
 
 3. The rule also applied to a constructive trustee. Thus, Old law 
 
 a mortgagee in fee, whose mortgagor died intestate and eo^'^gf^.^^gVi .p. 
 without heirs, took the property absolutely, subject to the trustees, 
 mortgagor's debts (g). Whether this would have been the 
 case if the mortgagee had been a mere equitable mortgagee 
 seems to be more doubtful ; but it is submitted that, on the 
 principle of Onsloio v. Wallis {j)), the result would have been 
 the same as if he were the legal mortgagee. 
 
 5. However, the foregoing illustrations have no applica- New law. 
 tion where the person to whom the property would have 
 resulted has died, without heirs and intestate, since 
 August 14th, 1884. For by the Intestates' Estates Act, 
 1884 (47 & 48 Vict. c. 71), s. 4, it is enacted that— 
 
 " From and after the passing of this Act, where a person dies 
 without an heir and intestate in respect of any real estate consisting 
 of any estate or interest whether legal or equitable in any incor- 
 poreal hex'editament, or of any equitable estate or interest in any 
 corporeal hereditament, whether devised or not devised to trustees 
 by the will of such person, the law of escheat shall apply in the 
 same manner as if the estate or interest above mentioned were a legal 
 estate in corporeal hereditaments." 
 
 ip) Onslow V. Wallis, 1 M. & G. 506 ; and see Jones v. Goodchild, 
 3 P. W. 33. 
 
 (q) Beale v. Symonds, 16 Beav. 406.
 
 ( 154 ) 
 
 CHAPTEE III. 
 
 THE TRUSTEE'S DUTIES. 
 
 ART. PAGE 
 
 33. — Duty of Trustee on accej^tance of Trust - - - - 154 
 
 34. — Duty of Trustee to obey the Directions of the Settlement - 156 
 
 35. — Diity of Trustee to act iniimrtially between the Beneficiaries - 160 
 
 36. — Duty of Trustee to sell Wasting and Reversionary Property- 165 
 37. — Duty of Trustee, as between Te?iantfor Life and Remaincler- 
 
 man in relation to Property pt^'^^dincj conversion tchich 
 
 oucjht to be converted, where conversion is delayed, - - 170 
 38. — Duty of Trustee in relation to the payment of Outgoings out 
 
 of (Jorpius and Income respectively - - - - - 178 
 
 39. — Duty of Trustee to exercise Reasonable Care - - - 188 
 
 40. — D%Lty of Trustee in relation to the Investment of Trust Funds - 200- 
 41. — Duty of Trustee to see that he pays Trust Moneys to the right 
 
 Persons - - - - - - - - -217 
 
 42. — Duty of Trustee not to delegate his Duties or Powers - - 220' 
 
 43. — Duty of Trustees to act jointly ivhere more than one - - 234 
 
 44. — Dutg of Trustee not to set ujT jus tertii . . . - 238 
 
 45. — Diity of Trustee to act gratuitously ----- 240' 
 
 46. — iMity of Trustee not to traffic unth or otherivisc profit by 
 
 Trust Property - - - 243 
 
 47. — Duty of Trustee to be ready with his Accounts - - . 252 
 
 Aet. 33. — Diifu of Tiiistee on acceptance of 
 ■ Trust. 
 
 A trustee must acquaint himself, as soon as 
 possible, with the nature and circumstances of 
 the trust property, obtain, where necessary, a 
 transfer of the trust property to himself, and, 
 sul)ject to the provisions of the settlement, get in 
 trust money invested on insuilicieiit or hazardous- 
 secui'ity {a). 
 
 A person who undertakes to act as a trustee, takes upon 
 himself serious and onerous duties; and when, as too often 
 
 (") H.g. in tiadc: KirLlmni v. lUxilli, 11 IJouv. 27.3.
 
 DUTY OF TRUSTEE ON ACCEPTANCE OF TRUST. 155' 
 
 happens, he adopts a " policy of masterly inactivity," he Art. 33. 
 entirely misapprehends the nature of the office to which he 
 has been appointed. As Kekewich, J., said, in Halloivs v. 
 Lloyd [h), "What are the duties of persons becoming new 
 trustees of a settlement? Their duties are quite onerous 
 enough, and I am not prepared to increase them. I think 
 that when persons are asked to become new trustees, they 
 are bound to inquire of what the property consists that is 
 proposed to be handed over to them, and what are the 
 trusts. They ought also to look into the trust docu- 
 ments and papers, to ascertain what notices appear among 
 them of incumbrances and other matters affecting the 
 trust." 
 
 A trustee is, however, not liable for mere ignorance of a 
 material fact, if he could not have become acquainted with 
 its existence from materials at his disposal (c). For 
 trustees are not insurers, and their conduct ought to be 
 regarded with reference to the facts and circumstances 
 existing at the time when they have to act, and which are 
 known, or which ought to be known, by them at that 
 time {d). 
 
 Illusteations. 
 
 1. Thus a new trustee's first duty is to ascertain that the Inquiries as 
 
 trust fund is properly invested, and that his predecessors ^" ^^^^ °* 
 
 i: ^ J ' -t predecessors. 
 
 have not committed breaches of trust which ought to be 
 set right. For if, through not inquiring into such matters, 
 the trust estate should sulfer, he may be liable, although he 
 himself took no part, and could have taken no part, in 
 committing the original breaches of trust (e). It would 
 seem, however, that where the old trustees had claims 
 against third parties {e.g., against their solicitor for negli- 
 gence), the new trustees cannot sue the third parties but 
 must go to the court for directions (/). 
 
 (b) .S9 Ch. D., at p. 691. Precisely the same cUities are binding on 
 persons appointed original trustees. 
 
 (c) Youde V. Cloud, 18 Eq. 634. 
 
 (d) Rt Hurst, Addison V. Topp, 67 L. T. 96. 
 
 (e) Harvey v. OUirer, 57 L. T. 239 ; and see Millar's Trustees v. 
 Poison, 34 Sc. L. R. 798. 
 
 (/) Fla-sHtt V. Eddis, 79 L. T. 136.
 
 156 THE ADMINISTRATION OF A TRUST. 
 
 Art. 33. 2. A tinistee who leaves the trust fund in the sole name, 
 
 ,, or under the sole control, of his co-trustee, will be Hable if 
 
 Alust not 
 
 allow pro- it be lost (g). 
 
 perty to 
 
 remain under 3 ^ trustee who keeps monevfor an unreasonable length 
 sole control of , . . , . ...",.,,.,.,, , 
 
 co-trustee. of time Without investing it, is hable if it be lost, however 
 
 Should pttre his motives may have been {h). 
 
 invest money 
 
 so soon as 5_ \ new trustee is liable to make good moneys paid by 
 
 i^r 'r him bond fide to a beneficiarv, if the papers relating to the 
 Effect of not • . . , •. 1 :. ? .1 
 
 searching for trust comprise a notice of an incumbrance created by that 
 
 notices of beneficiary depriving him of the right to receive the money. 
 
 branc-e=. -^*^^ ^ ^^^ tmstee 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 {i). Where, how- 
 ever, no amotmt of search would have disclosed the notice, 
 the trustee would of course not be liable, as his Hability 
 entirely depends upon his shh-king the duty of seai-ch, which 
 the law casts upon him {{). Moreover, he is not bound to 
 inquire of the old tmstees whether they have received notice 
 of any incumbrances (/;). 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 (Z). 
 
 Art. 34. — JJutij of Trustee to obey the Directions 
 of the Settlement. 
 
 A trustee must fulfil the purposes of the trust, 
 and obey the directions of the settlement, except 
 so far as these directions — 
 
 (a) are modified by the consent of all the 
 beneticiaries, or by the authority of a 
 competent court ; or 
 
 (</) L*irU V. Xohhi<, 8 Ch. D. 591. 
 (h) Moylt V. Moylf, 2 R. & M. 710. 
 (1) See HaUoirj> v. Lioyd, 39 Ch. D. 686. 
 {k) Phipp* V. Lor<:grov*s 16 E<j. 80. 
 (/) Loxc\. Bouitru, [1891] 3 Ch. 82.
 
 TRUSTEE MUST OBEY DIRECTIONS OF SETTLEMENT. 157 
 
 (b) are impracticable, illegal, or manifestly Art. 34. 
 injurious to the beneficiaries. 
 
 This is the most important of all the rules relating to the 
 duties of trustees. It is founded on common sense, and 
 overshadows 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 Articles 55 
 and 56, 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 dis- 
 tribute the trust property between themselves as they may 
 think fit. The rule is also subject to the power of the court 
 to interpose on behalf of parties beneficially interested, who 
 are not sui juris ; and of course, as we have seen(??i), it is 
 not binding upon a trustee where the directions of the settle- 
 ment are illegal. Another exception necessarily arises where 
 the directions of the settlement are impracticable {e.g., if 
 it directs an immediate sale, and no purchaser can be found). 
 Lastly, an exception arises where it would be manifestly 
 injurious to the beneficiaries to carry out the directions 
 contained in the settlement. 
 
 Illustrations. 
 
 1. If trustees are, by the settlement, directed to call in Neglect to 
 trust monevs, and to lav them out on a purchase, and they P^r^'liase 
 fail to do so, and the fund is lost, they are liable for the directed 
 loss(;i). to do so. 
 
 2. So, if a trustee for sale omits to sell property when it Neglect to 
 
 ought to be sold, and it is afterwards lost, although without '^i . ' ]^'^^'^"** 
 " / _ . directed 
 
 any default on his part, he is liable for the loss, which would 
 not have happened had he not failed in performing an 
 obvious duty (o). 
 
 (?n) Art. 10, supra. 
 
 (n) Craven V. Graddock, W. N., 1868, p. 229. 
 
 (o) St. § 1269 n.
 
 158 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art 34. 
 
 Direction 
 to invest on 
 particular 
 securities. 
 
 Must observe 
 <;onditions 
 imposed on 
 their dis- 
 cretionary 
 powers. 
 
 3. So, where the settlement orders trust funds to be 
 invested on particular securities, the trustees are bound to 
 invest in such securities or in those prescribed by statute (as 
 to which, see infra, Article 40). 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 autho- 
 rised by the Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 1, 
 the powers of which are only exercisable if not forbidden by 
 the settlement {p). The former, repealed, statutory power 
 contained no such restriction {q). 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 : sed gucsre (r). 
 
 4. 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 (s). 
 
 5. So where trustees were empowered to vary investments 
 " with the consent of the tenant for life," and they sold con- 
 sols, and first made an investment with such consent upon a 
 contributory mortgage (which was not an authorised security), 
 and subsequently called the money in, and without such 
 consent reinvested it upon a mortgage which was an autho- 
 rised one, it was held that, although there was no loss of 
 capital, they were nevertheless bound to replace the consols 
 which had since risen in price. For they sold the consols 
 for the purpose of investing in an unauthorised security, 
 which was contrary to the directions of the settlement ; and 
 then when they I'ealised that investment, they reinvested 
 
 (p) Oi-ey V. Over/, [19001 - Cli. .")'24. 
 
 ('/) Re WeddtrhHru,\) Cli. 1). 112, decided on s. 11 of Lord St. 
 Lcniiard'H Act, repealed liv the Trust Investment Act, 1889 {'fl & 
 .->:i Vict. c. H2). 
 
 (r) Hi' Oiithirai/e, Oii/hurti/r v. Taylor, [1891] .3 Ch. 494. 
 
 {m) lidlinvtn V. IJdrix, 3 Madd. 98 ; but see IStcreiix v. Rohcrtson, 
 'M L. .1. Cli. 499, wliere it Mas lield tliat a consent as to the mode of 
 investing the trust fund might he given, i.x jjoxt facto.
 
 TRUSTEE MUST OBEY DIRECTIONS OF SETTLEMENT. 159 
 
 the proceeds without the consent of the tenant for life, Art. 34. 
 which was again contrary to the directions of the settle- 
 ment. In both transactions, therefore, they disobeyed the 
 rule now under consideration, and consequently 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 committed (i). 
 
 6. On the same principle, where an estate is given in Camiot 
 
 trust for A. for Hfe, and after his death upon trust for sale, a^^celerate^ 
 
 " n k "1*1^ tjri.ist' lor 
 
 the trustees cannot sell during the life of A., even with A. s sale 
 
 consent, unless of course all parties beneficially interested 
 
 in remainder are siii 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 {lo). Indeed, it has 
 
 been held, that even the court has no jurisdiction to order 
 
 an earlier sale [x) ; 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 and Law of Property 
 
 Act, 1881 (44 & 45 Vict. c. 41). It must also be pointed out 
 
 that, notwithstanding such a trust, and notwithstanding 
 
 the consequent inability of the trustees to sell during the 
 
 life tenancy, it is now competent for 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 willing to concur (?/). 
 
 {t) Re Massingherd, Clark v. Trelawney, 63 L. T. 296 ; and see also 
 Ee Bennison, Cutler v. Boyd, 60 L. T. 859 ; and Stokes v. Prance, [1898] 
 1 Ch. 212. 
 
 (u) Leedham v. Chawner, 4 K. & J. 458 ; Want v. Sta/lihra'^s, L. R. 
 •8 Ex. 175 ; lie Bryant and Barningham, 44 Ch. D. 218; Re Head and 
 Macdonald, 38 W. R. 657. But see also Saner v. Arnold, 14 App. Cas. 
 429. 
 
 (x) Johnstone v. Baher, 8 Beav. 233; Blacldow v. Lairs, -IHarc, 40; 
 Sunter v. Great Western Rail. Co., 23 W. R. 126; and Carlyon v. 
 Truscott, 20 Eq. 348. 
 
 (y) Re Bryant :;nd Barningham, supra, mnA Re Head and Macdona'd , 
 supra.
 
 160 
 
 Art. 35. 
 
 THE ADMIXISTRATIOX OF A TEUST. 
 
 Aet. 3-5. — Duty of Trustee to act impartially 
 between the Benejiciaries. 
 
 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. In particular, where the 
 capital of the trust property is in any way aug- 
 mented, the augTQentation accrues for the benefit 
 of all the beneficiaries, and is accordingly to be 
 treated as capital, and not as income (a). 
 
 Powers of 
 sale and 
 purchase 
 
 Trust to 
 raise debts 
 I)}- sale of 
 land. 
 
 'I'rustees 
 ulioulfl not 
 purc-liasc 
 woodland 
 estate. 
 
 Illusteations. 
 
 1. Thus, where trustees are empowered to sell real estate 
 and to lay out the proceeds in the purchase of another 
 estate, they ^Y0uld not be justified in selling to pi'omote the 
 exclusive interest of the tenant for life ; but they 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 (b). 
 
 2. 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 succes- 
 sively u-ithout impcaclnncnt 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 (c). 
 
 3. "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 wath an overwhelming pro- 
 portion of trees on it. For if the tenant for life be impeach- 
 able for waste, he would lose the fruit of so much as was- 
 
 (a) Ih Barton, 5 Ec]. 238 ; lie Boitch, Sproult v. Bouch, 12 App. Cas. 
 385. 
 
 (h) Mortlork V. Bulltr, 10 Ves. 309 ; Muhon v. i>taiihopc, cit. 2 Sug. 
 I'ow. 412. 
 
 (r) lJurie« v. Wcxtcomh' , 2 Sim. 425.
 
 DUTY OF TKUSTEE TO ACT IMPARTIALLY, ETC. IH I 
 
 the value of the timber; and if he be not impeachable, he Art. 35. 
 could, by felling the timber, possess himself of a great part " 
 of the corpus of the trust property {d). 
 
 4. Under a similar trust to the foregoing, trustees Trustees 
 should not purchase mining property, nor an advow- should not 
 son, both of which might give an undue preference to one mining pro- 
 beneficiary (c). Perty or 
 
 advoWsou, 
 
 5. Again, where trustees have a choice of investments, Choice of 
 they must not exercise that choice for the sole benefit of the I'lvestments. 
 tenant for life by investing upon a more productive but less 
 
 secure property (/). And where any change of investment 
 is to be made with the consent of the tenant for life, and he 
 im]properly withholds his consent, the court will compel him 
 to give it {g). 
 
 6. On the principle enunciated in the article now under Trustee must 
 consideration, trustees must not threaten to exert their ^}°}i exert 
 influence with thnxl parties to the prejudice of one of their against the 
 beneficiaries, in order to coerce him into consenting to a interest of a 
 disposition of the trust property more favourable to another 
 
 of the beneficiaries than would be the case if the settlement 
 were strictly performed (/t). 
 
 7. Where a company, out of a reserve fund, creates new Augmenta- 
 capital, and allots it gratis among the old shareholders, any ti°^ "^ 
 shares so allotted to trustees will be held by them as capital, 
 
 and will not belong to the person entitled to the trust 
 income (i). 
 
 8. So where bonuses are paid as part of capital, they will Bonuses. 
 be retained by the trustee ; but where bonuses are mere 
 expressions for extra dividends, this will not be the case. 
 
 As Lord Justice Fry said in BeBouch, Sproule v. Bouch (Jc), 
 
 {d) Barges v. Lamb, 16 Ves. 174. (e) Lew. 439. 
 
 (/) Kahy v. JRideha/yh, 7 D. M. & G. 104; and Stuart v. Stuart, 
 3 Beav. 430. 
 
 (.7) Co-stello V. O'Rotirhe, 3 Ir. Rep. Eq. 172. 
 
 (h) Ellis V. Barker, 7 Ch. App. 104. 
 
 (i) Re Bouch, Sproule v. Bouch, 12 App. Cas. 385; Be Northage, 
 Ellis V. Barjiekl, 60 L. J. Ch. 488, 
 
 (k) 29 Ch. D. 635, at p. 653.
 
 162 THE ADMINISTRATION OF A TRUST, 
 
 Art. 35. in a passage quoted with approval by Lord Hekschell in 
 gi'^'iiig 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 com- 
 pany 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 
 company as dividend goes to the tenant for life, and what is 
 paid by the company to the shareholder as capital, or appro- 
 priated as an increase of the capital stock in the concern, 
 enures to the benefit of all who are interested in the 
 capital" {m). The bonus of a quarter per cent, which was 
 offered to the holders of consols and reduced threes as an 
 inducement to convert their holdings into new 2|- per cents., 
 was by the National Debt (Conversion) Act, 1888 (51 & 
 52 Vict. c. 2), s. 10, specially declared to be income and not 
 capital. 
 
 Profit on 9. It need scarcely be pointed out that where, on a change 
 
 realisation of Qf investment, trust securities realize more than was given 
 for them originally, the profit accrues to capital, and is 
 not considered as income payable to the tenant for life. In 
 the same way, where trustees of a mortgage debt foreclose, 
 and subsequently sell the property for more than the debt 
 and arrears of intei'est 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 aug- 
 mentation should belong to all, and not merely to the life 
 tenant. 
 
 Trofit on re- 10. A testator gave his estate upon the usual trusts for 
 
 <;on.stniotion conversion, with power to postpone, and directed that, 
 of company. > r i r > 
 
 (/) 12 App. Cas. .'«.^, at p. "24.5. 
 
 (//i) See also lie Ahlnrnj, SiKjdetiv. Aliilmry, 45 Ch. D. 2.37 ; and Re. 
 Northnije, KUxh v. Burjitld, GO L. J. Ch. 488, in both of which bonuses 
 were treated as income ; whereas, in Ri. Boitch, Sproufe v. Uouch, 
 mipra, they were treated as corpus ; and <•/. Jie Hopkins, 18 Eq. 696 ; 
 Strabrx. Wilxon, 6 Ch. A])p. 50.3; Ihlntnou v. Elam, 1 Eq, 188; and 
 Urownc v. Collins, 12 Eij. 586.
 
 DUTY OF TRUSTEE TO ACT IMPARTIALLY, ETC. 1G3 
 
 pending conversion, the income actually produced should Art. 35. 
 be treated as income. Part of the residue consisted of 
 shares in a company with £8 per share paid up. The com- 
 pany was reconstructed, and the new company paid £9 55. 
 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 : — 
 Held, that the right of a tenant for life of shares is only to 
 receive dividends and bonuses in the sliape of dividends, 
 and that, although the £1 5s. was profits, it was under the 
 circumstances not payable as income [n). 
 
 11. The question sometimes arises, whether trustees can Whether 
 safely pay the share of one beneficiary who has attained a ^'^■"stees can 
 vested interest in possession, before paying the other bene- the share of 
 ficiaries who may not have attained a vested interest, or f>»e benefi- 
 whose shares, by reason of incapacity or otherwise, are not payh^J'the*' 
 presently payable. If he does so, it may happen that by others, 
 reason of subsequent depreciation of securities, the balance 
 retained by the trustee may be insufficient to pay the other 
 beneficiaries in full, in which case the first beneficiary will 
 
 have got more than the others. It appears, however, to be 
 well settled that if, when the first payment was made, the 
 trustees have, and retain in their hands, assets, which, 
 fairly valued, are suflicient to meet shares which are not 
 presently payable, but have to be held in trust, they are 
 justified in paying other shares payable pari passu but 
 payable at once, and are not liable if the assets so retained 
 should, in the event, prove insufficient to pay the unpaid 
 beneficiaries in full (o). For the conduct of trustees is 
 regarded with reference to the facts and circumstances 
 existing at the time when they have to act, and therefore, if 
 they make the valuation impartially at the time, they are 
 not liable for an unforeseen loss. 
 
 12. Another question sometimes arises — whether trustees Whether 
 
 of a will can treat their trust as severable into several trusts, trustees can 
 
 ai)|)ro}5riate 
 
 [n] Re Armitacje, Arniitage v. Garnett, [189.3] 3 Ch. 337. 
 
 (o) Ptr LiNDLEY, L.J., Re Hurst, Addison v. Tojjp, 67 L. T. p. 99; 
 Re Wius/ow, Frere v. Window, 45 Ch. 1). 249 ; Fenudck v. Clarke, 
 4 De G. F. & J. 240 ; Re Lepine, Dowsett v. Gidver, [1892] 1 Ch. 210.
 
 164 THE ADMINISTRATION OF A TRUST. 
 
 Art, 35. appropriating specific securities to each, or whether they 
 
 must treat the trust property as one undivided fund, until it 
 
 securities to becomes necessary, on the death of a life tenant, to pay and 
 
 answer par- distribute his share among his children. For instance, 
 
 ticuiar shares -y^i^ej^Q ^ testator settles money either in a specific sum or as 
 
 payable nt, . 
 
 fuhiro. a share of residue upon each of his daughters for life, with 
 
 remainder for her children, ought the trustees to treat the 
 daughters' fortunes as one trust, or as several ? If a sever- 
 ance and appropriation of securities be lawful, it may 
 sometimes be convenient ; but on the other hand, the result 
 may obviously be, that (by reason of the appreciation of one 
 appropriated set of securities, or the depreciation of another, 
 or by both such causes) one family may get less, and the 
 other more than their due proportion of the entire fund. 
 Where the form of the trust is a trust of specific suras 
 {e.g., £1,000 to be held upon trust for a testator's daughter 
 A. for life, wnth remainder for her children equally, and 
 £1,000 to be held upon a similar trust for his daughter B. 
 and her children), such appropriation is not only undoubtedly 
 legitimate, but ought to be made (p). So where the form of 
 the trust is to divide a testator's residuary estate between 
 his children equally, the daughters' shares to be retained, 
 and invested upon trust for them respectively for life, with 
 remainder to their respective children, if, when the appro- 
 priation is made, the securities are fairly valued and fairly 
 appropriated, there can be no objection ; and when once 
 the appropriation is made, the subsequent depreciation of 
 one appropriated fund cannot be made good out of th& 
 appreciation of another (q). Moreover, it has recently been 
 held by Stirling, J., that even where the form of the trust 
 is such, that no immediate severance into shares is directed 
 until a share of corpus becomes distri])utable, an appropria- 
 tion may be lawfully made, although the usual practice,. 
 
 (//) Fi-dxor V. M iirdorli, (i Ai)p. Cas. 855 ; /»V Walker, Walker w 
 Wnlker, iVl \j. 'V. 44!) ; ami see also ]\e Lepiiie, Doifxitt v. Cu/rer, supra. 
 and liarrhiy v. Oirtii, (iU L. '!'. 2'2(). But an a])pn)piiati()n (if securities 
 is oul^' valid if the appiopriateil securities were both authorised and 
 suflicicnt at the date of the appropriation ; see /iV- Watern, 1889. W. N. 
 .'{!». It is not, however, necessary that where a trustee api)ropriates 
 securities to one beneficiary ho should contemporaneously appropriate 
 to all {/{e liirhardHon, 1 18UU] 1 Ch. 512; Re Xirke/x, Nickc/.'< v. Nicke/s, 
 11H<)8| I Ch. (iHO). 
 
 (7) Jlf Xirke/x, mipra; lie /Srooks, Co/es v. Darin, 70 I^. 'I'- 771.
 
 DUTY OF TRUSTEE TO SELL WASTING, ETC., PROPERTY. 165 
 
 both of trustees and of the court itself (in the administration Art. 35. 
 -of estates and trusts), has been to make no appropriation in 
 such cases (r). 
 
 Art. 36. — Dutjj of Trustee to sell Wasting and 
 Keversionarij Property. 
 
 Where the trust is for the benefit of several 
 persons in succession, and the trust property is 
 of a wasting nature, or is a future or reversionary 
 interest, the trustee must convert the property 
 into property of a permanent and immediately 
 profitable character, unless : — 
 
 (a) the settlement contains a direction or 
 
 implication to the contrary ; or 
 
 (b) the settlement confers a discretion on the 
 
 trustee to postpone such conversion, 
 which he honct fide and impartially 
 exercises : or, 
 
 (c) the property in question is specifically 
 
 settled. 
 
 The above rule, known as the rule in Hoive v. Lord Rule in Howe 
 Dartmouth {s), is really only a corollary of the principle ^^^^°''^ ,, 
 stated in x\rt. 35, viz., that the trustee must act impartially 
 between the beneficiaries. For if wasting property (such as 
 leaseholds, terminable annuities, and the like) w^ere 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 
 
 (r) Re Nicheh, supra, and see Re Brooks, Coles v. Davis, supra. 
 is) 2 Wh. & Tu. 68 ; and see a,ho Bmres v. Hinves, 3 Hare, 609 ; and 
 Pickering v. FickfriiKj, -t M. & C. 2S9.
 
 166 THE ADMINISTEATIOX OF A TRUST. 
 
 Art. 36. of the settlor, and not upon anj- intention actually expressed 
 b}^ him ; and 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 intention that the property- should 
 be enjoyed in specie (t) ; for the burden of showing this lies 
 upon the party who desires that the rule in Hoice v. Lord 
 Dartmouth should not be applied [ii). 
 
 Long 
 annuities. 
 
 Leaseholds. 
 
 Rule not 
 
 applicable 
 
 where 
 
 coiitrar}' 
 
 intention 
 
 expressed. 
 
 Illusteatioxs. 
 
 1. Where a testator's residuary estate was settled uport 
 one for life, with remainders over, it was held that long, but 
 terminable annuities, which formed part of it, ought to be 
 sold, and the proceeds invested on permanent trust 
 secm-ities (.r). On similar grounds where part of the estate 
 consists of the intermediate income of a fund set apart to 
 answer a futm-e hability the intermediate income must be 
 treated as capital {y). 
 
 2. A testator gave to his wife the whole of the interest 
 arising from his property, both real and personal, dming 
 her life, with remainders over. He died possessed of lease- 
 holds, among other property. It was held that the widow 
 was not entitled to retain the leaseholds, but that they must 
 be sold and the proceeds invested in stock {z). 
 
 3. As already stated, the rule in Hoive v. Lord Dartmoiith 
 is subject to any contrary intention which may be expressed 
 or implied in the settlement. Moreover, it is immaterial 
 whether the contrary intention is imperatively expressed^ 
 
 (0 Ptr BAr,r.ALL.\Y, L..J., Macdonald v. Irvine, 8 Ch. D. p. 112. 
 
 (u) Per James, L.J., same case. 
 
 (a.) Tickner v. Old, 18 Ecj. 422 ; Por(tr v. Baddehy, 5 Ch. D. 542 ? 
 but see contra, M'i/day v. Sandys, 7 Eq. 455, where, on the construction 
 of the will, it was held that the trustees were authorised to hold long 
 annuities. 
 
 {>/) W WhiUhead, Prarork v. Lnca«, [1894] 1 Ch. 678. 
 
 (z) Bain V. Dixon, 10 Sim. 636.
 
 DUTY OF TRUSTEE TO SELL WASTING, ETC., PROPERTY. 1(37 
 
 or whether a discretion to convert or not is expressly given Art. 36. 
 to the trustees ; for the court vpill not interfere with a 
 discretion so long as trustees exercise it in good faith (a). 
 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 
 life, with remainder to his grandchildren, and gave his 
 trustees poiuer to retain any loortion of his property in the 
 same state in which 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 conversion of perishable 
 property, and that the trustees were at liberty to retain the 
 short leaseholds, and any other investments held by the 
 testator, for such period as they should think fit {b). And 
 a similar decision was arrived at where a testator authorised 
 his trustees to postpone the sale of his business (c). 
 
 5. So, again, where the testator devised wasting property Discretion 
 to trustees, upon trust to sell " when in their discretion they si^'en to 
 should deem it advisable," it w^as held that the trustees 
 were not bound to sell until they deemed meet {d). 
 
 5. The above cases are instances of an express intention Rule not 
 that the trustees should have a discretion : but the same applicable 
 result Will follow where that nitention can be implied, impliedly 
 Thus, a testator, after a specific bequest, gave all his negatived, 
 residuary estate, both real and personal, to trustees, upon 
 trust, to sell so much and such part thereof as they might 
 think necessary for paying all his mortgage and other debts 
 and funeral and testamentary expenses, and to invest the 
 balance of the proceeds, and to stand possessed of such 
 investments, and all other his residuary estate, upon trust 
 for several persons successively for their respective lives, 
 
 (a) Gisho7iie v. Gishorne, 2 App. Cas. 300 ; Tabor v. Brooks, lOCli. D. 
 273. 
 
 {b) Gray v. Siggers, 15 Ch. D. 74. 
 
 (c) Be Crowther, Midgley v. Crowther, [1895] 2 Ch. 56 ; but see He 
 Smith, Arnold v. Smith, [1896] 1 Ch. 171. 
 
 (rf) 3Iiner V. MiUe7% 13 Eq. 263 ; Thursby v. Thursby, 19 Eq. 395 ; 
 and see also Chancellor v. Brown, 26 Ch. D. 42 ; and Be Crowther, 
 Midgley v. Crowther, supra, in both of which cases the property 
 consisted of a business.
 
 1(58 THE ADMINISTRATION OF A TRUST. 
 
 Art. 36. 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 w^ith such discretion (e). 
 
 6. 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 (/) ; and even a poiver to sell all or any 
 part of the estate in the absolute discretion of the trustees 
 has been held to negative the lyrimd facie duty of selling 
 wasting, or reversionary property forthwith [g). And a 
 similar view has been taken of a direction to divide property 
 after the death of the late tenant (Ji). So, in some cases, it 
 has been decided that a trust to pay rents to the tenant for 
 life, ivhere the testator has only leaseholds (i), or a direction 
 that the trustees should give a power of attorney to the life 
 tenant to receive the income {k), is a sufficient indication 
 of a contrary intention to take the case out of the general 
 rule. 
 
 7. A testator gave his residuary estate to trustees in trust 
 to convert into money such parts thereof as should not 
 consist of money, o?* be invested in any of the jjublic funds 
 or government securities, and to pay the interest, dividends, 
 and annual proceeds of such residue to his children in equal 
 shares for their lives, and after their deaths 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 (/). On the other 
 
 (e) lie Hc.wi'll, I ] l':(i. 80. 
 
 (/) Alcock V. Sloptr, 2 M. & K. 697 ; Da)ud v. Warren, 2 Y. & 
 C. C. C. 'MS. 
 
 (r/) lit /'i/rairn, Brnwlnlh v. Colrhi, [1896] 2 Ch. 199. 
 
 (h) (U>lliu» V. Co//l>i.'<, 2 M. & K. 70:{. 
 
 {i) (loodi iioiKih V. TrintdviuHdo, 2 Bcav. 512 ; Cafe v. Bent, 5 Hare, 
 'M\ ; Varlull, v. ' Jiohrrts, .S2 JJuav. 140. 
 
 (/•) Ncrilh'. V. /''or/cMcnr, Hi Sim. '.V.V.i. 
 
 (/) ir;/.A/;/ V. Saii<h/H, 7 i-;,]. .i.")5.
 
 DUTY OF TRUSTEE TO SELL WASTING, ETC., PROPERTY. 169 
 
 hand, in Tichncr v. Old (m), where the direction was to Art. 36. 
 convert the residue and invest in government or real securi- ~~ 
 
 ties, with power to continue invested any government 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 perceived 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 origin- 
 ating summons. 
 
 8. Although the mere absence of a direction to convert Property 
 wasting property has never been construed to mean that it frecificallv 
 should be enjoyed in specie, yet, where such property is 
 given specifically in the strict sense of the term, i.e., where 
 it is expressly referred to, the rule has no application. For 
 in such cases, in the absence of express direction, the pre- 
 sumption 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 persons 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, notwithstanding that, by reason of 
 the terminable nature of the property, the ultimate remain- 
 derman may be disappointed (7i). This distinction between 
 specific trust bequests and residuary trust bequests is 
 •observed even where the specific bequest and the residuary 
 bequest were given to the same person for life (o). 
 
 (m) 18 Eq. 422 ; and see also Porter v. Baddeley, 5 Ch. D. 542. 
 
 (n) Re Beaufoy, 1 Sm. & Giff. 20. 
 
 ,(o) Macdonald v. Irvine, 8 Ch. D. 101 (Baggallay, L.J., diss.).
 
 170 THE ADMINISTRATION OF A TRUST. 
 
 Art 37. 
 
 ' * Art. 37. — Duty of Trustee as bettveen Tenant for 
 
 Life and liemainderman in Belation to 
 
 Proioerty j^ending conversion which ought to 
 
 be converted, ivhere conversion is delayed. 
 
 Where property ought to be converted, (either 
 by express dhection or under Article 36), and the 
 proceeds invested, the tenant for hfe is entitled, 
 pending such conversion, to receive either the 
 whole or some part of the income of income- 
 bearing property, and to be credited with income 
 in respect of reversionary property, in accordance 
 with the following rules, viz. : — 
 
 (1) He is entitled to the whole income of 
 
 income-bearing property if the settle- 
 ment so directs or implies {p) . 
 
 (2) Where the property is of a wasting nature 
 
 (and, semble, even where, being per- 
 sonal estate, it is not), if there is no 
 express power to postpone conversion, 
 but the property cannot be sold, he is 
 only entitled to such interest as would 
 be produced if the property were actually 
 sold, and the proceeds invested in trust 
 securities. If, however, there is an ex- 
 press power to postpone conversion until 
 a suitable 0}yportunity occurs, he is en- 
 titled to interest after the rate of 3 per 
 cent, per annum (q). 
 
 (3) Where the property is of a reversionary 
 
 nature, he is entitled, when it falls in, 
 to a proportionate part of the capital, 
 
 (p) See Ii'f. Slu'ldov, Nixon v. SIuMoii, .39 Ch. D. 50; He Thotnax, 
 Wood V. Thoman, [18!)!] 3 Ch. 482. Whero tlio property is of a non- 
 wiiHting nature, the court will accept very slight evidence of implied 
 intention. 
 
 (7) Brown v. (Irllathj,2i:\\. App. T.'.l.
 
 SALE DELAYED (TENANT FOE LIFE AND REMAINDERMAN). 171 
 
 representing 3 (r) (formerly 4) per cent. Art. 37. 
 compound interest (with yearly rests) 
 on the true actuarial value of the 
 property at the testator's death, calcu- 
 lated on the assumption that the actual 
 date when the property fell into posses- 
 sion could have been then predicted 
 with certainty (s). 
 
 (4) Where the trustees are mortgagees in 
 possession of property which is believed 
 to be an insufficient security, then, 
 pending realization, the income, less 
 3 per cent., is to be treated as capital, 
 and the 3 per cent, as income. But 
 upon complete realization of an in- 
 sufficient security, the money realized, 
 plus the income received by the tenant 
 for life, must be divided between tenant 
 for life and remaindermen in the pro- 
 portion of the sums which ought to 
 have been received for income and 
 capital respectively if no default had 
 been made ; the tenant for life giving 
 credit for what he has actually 
 received (i^). 
 
 This article is a further corollary of Art. 35, and its 
 main principle forms the second part of the rule in 
 Howe V. Lord Dartmouth, viz., that prima facie, pending a 
 conversion which ought to be made, the tenant for life is 
 entitled to the income w^hich would be produced by the 
 proceeds of the conversion, if it were made, and nothing 
 
 (r) See Re Goodenough, Mar/and v. Williaim, [1895] 2 Cli. 537 ; Re 
 Mcyrley, Morley v. Haiy, ib. 738 ; Re Hohson, 53 L. T. 627 ; and Re Duke 
 of Cleveland, Hay v. Wolmer, [1895] 2 Cli. 542 ; Rowlls v. Behb, [1900] 
 2 Ch. 107. 
 
 (s) Re Earl of Chesterfield, 24 Ch. D. 643 ; followed, with variations 
 as to rate of interest, in Re Goodenough, Alarland v. Williams, supra ; 
 Re Morley, Morley v. Haig, supra ; Re Hohson, supra ; and Re Duke 
 of Cleveland, Hay v. Wolmer, supra. 
 
 (t) Re Godden, Teague v. Fox, [1893] 1 Ch. 292.
 
 172 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 37. 
 
 Settlement 
 directing 
 that income 
 is to be 
 enjoyed in 
 specie. 
 
 more. The I'ule, like so many equitable rules, is founded on 
 the maxim that equity regards that as done which ought to 
 be done, and consequently has no application where, on the 
 true construction of the settlement, the wasting or rever- 
 sionary property is not to be converted ; nor does it apply 
 where the trustees have a discretion in the matter, and it 
 appears to have been intended that, until conversion, the 
 income should be enjoyed in specie. Where, on the other 
 hand, there is merely a power to postpone conversion for 
 the imrpose of selling the property to the best advantage, and 
 no intention is indicated that the power is inserted for the 
 benefit of the tenant for life as against the remainderman, 
 the rule applies. However, unless the settlement is very 
 explicit, trustees should always be advised to take the 
 opinion of the court before paying the actual income to a 
 tenant for life. 
 
 Illustkations. 
 1. Where a testator devised his brickfield (which was, of 
 course, property of a wasting nature) to trustees upon trust 
 to sell when, in their discretion, it might seem advisable, 
 and directed that the rents and profits should, until sale, be 
 considered as part of his personal estate, and be applicable 
 and applied m the same manner as the dividends or interest 
 to arise from the investments of the sale moneys, it was held 
 that the tenant for life was entitled to the whole of the 
 royalties paid by tenants of the brickfield, although the 
 trustees did not sell the property for ten years (u). If, how- 
 ever, the italicized words had not been inserted in the will, 
 it seems plain that tlie power to postpone conversion would 
 not of itself have authorised the payment of the whole of 
 the royalties to the tenant for life. For, in that case, the 
 inference would have been, that the power to postpone con- 
 version was for the purpose of efficiently selling the estate, 
 and not for the benefit of the tenant for life (x). The 
 question, in short, is one of construction in all these cases, 
 vi/., whether the testator intended that the power to post- 
 
 (//) Milh'f V. MilUr, 13 Eq. 263 ; and see also Thurshy v. Thurshy, 
 l!l lv(. '.\[\'t, wlicre the, ■^vllol(^ of colliery royalties were held to be pay- 
 ;il)l(; to llic tenant for life, .ind Jit Croivlhtr, Mldf/fey v. Crowther, 
 llH!)r,J2 Cli. r)G. 
 
 (x) lie Carttr, 41 W^ W. 140 ; lirown v. (,'dlat/y, 2 Cli. App. 751.
 
 SALE DELAYED (TENANT FOR LIFE AND EEMAINDEEMAN). 178" 
 
 pone should be exercised for the benefit of the tenant for Art. 37. 
 life, or merely for the more convenient realization of the 
 estate. 
 
 2. A testator empowered his trustees, at their discretion, Settlement 
 to continue all or any part of his personal estate in the state in^^m "fs to^ 
 of investment in or upon which the same should be at his be enjoyed 
 death, or to convert it, and invest the proceeds in the "^ ^P^^ie. 
 names of the trustees in certain specified securities. Part 
 
 of the personal estate consisted of securities not speci- 
 fically authorised, which were retained : — Held, that the 
 tenants for life were entitled to receive in specie the income 
 of those securities which were retained [y). It will be 
 perceived that the testator authorised the continuance of 
 securities, and not merely the postponement of their conver- 
 sion, otherwise it is conceived that the decision might have 
 been different. 
 
 3. Another good example of an implied intention that 
 income should, pending conversion, be enjoyed in specie, is 
 afforded by the case of Be Thovias, Wood v. Thomas {z). 
 There a testator gave his residuary estate to trustees upon 
 trust for conversion and investment of the proceeds in 
 specified securities, with power to the trustees in their 
 absolute discretion to retain any securities or property 
 belonging to him at his death unconverted, for such period 
 as they should think fit. He then declared that they 
 should stand possessed of "the stocks, funds, shares, and 
 securities for the time being constituting or representing the 
 residuary personal estate and effects thereinbefore bequeathed 
 and of the income thereof," upon trust to pay the income to 
 certain persons for life with remainders over. The estate 
 comprised certain American bonds, which were not included 
 among the securities authorised by the will as investments, 
 but were retained by the trustees in exercise of the discre- 
 tion given to them ■.—Held, that, on the true construction of 
 the will, the tenants for life were entitled to the whole 
 income of the bonds in specie. In giving judgment, Mr. 
 
 (y) Be Sheldon, Nixon v. Sheldon, 39 Ch. D. .50 ; and see also as to 
 rents of leaseholds. Gray v. Siggers, 15 Ch. U. 74. 
 {z) [1891] 3 Ch. 482.
 
 174 
 
 THE ADMINISTEATION OF A TRUST. 
 
 Art. 37. 
 
 Rents of 
 real estate 
 pending 
 conversion. 
 
 Justice Kekewich said: " I am not prepared to hold, that, 
 \vhere there is a direction for conversion of personal estate, 
 followed by a power of retention of existing securities in the 
 absolute discretion of the trustees, and then there are trusts for 
 tenants for life, and afterwards for remaindermen, the power 
 of retention necessarily gives the tenants for life the enjoy- 
 ment in specie of the securities retained by the trustees in 
 the exercise of their discretion. But I have no doubt that 
 one looks out with an expectant eye for a direction that the 
 tenant for life shall receive the income when there is an 
 express direction to the trustees to retain securities, or any 
 indication of the testator's intention that they shall retain 
 them indefinitely for so long as they may think fit." 
 
 5. Eealty was settled upon trust to sell and invest the 
 proceeds, and to pay the dividends to B. for life, with certain 
 limitations over after his death. There was no direction as 
 to payment of the intermediate rents pending sale. The 
 land w'as sold withoni undue delay, but, pending the sale, 
 the rents produced more than 4 per cent, per annum on the 
 amount realised on the sale. On these facts it was held 
 by Kekewich, J., that, notwithstanding the absence of any 
 power to postpone the sale, or any direction as to the 
 interim i-ents, the whole rents belonged to B., the tenant for 
 life (a). His lordship carefully rested his judgment upon 
 implied intention, and not upon any rule of law differen- 
 tiating real estate which ought to be converted, from personal 
 estate subject to a like trust. It is, however, difficult to 
 understand how any such implied intention w^as found in 
 this case, apart from the obvious convenience of the 
 decision ; and if convenience is to be the test of intention, it 
 would seem to follow that such intention should be implied 
 in every case where land is directed to be sold, unless the 
 contrary is expressed. Indeed, the learned judge seems 
 to have come to this conclusion in the subsequent case of 
 Itc Searle, Searlo v. Baker (b), where he laid tlie rule down 
 In-oadly that the tenant for life is always entitled to the 
 intermediate rents where the sale is postponed (cither under 
 a power, or otherwise), without impropriety. 
 
 («) J/op< V. /rj/r</oiirl//(, [ISiKiJ-iCli. .SGI. 
 (0) [iyU0]2Ch. 8-J'J.
 
 SALE DELAYED (TENANT FOR LIFE AND REMAINDERMAN). 175 
 
 5. In the leading case of Broivn v. Gellatly (c), the testator, Art. 37. 
 who was a shipowner, directed his trustees to convert his 
 personal estate into money, when and in such manner as Ij^®'^*"^ ^'^'^ 
 they should see fit, and gave them power to sail his ships entitled to 
 until they could be disposed of satisfactorily. The proceeds whole income 
 of his personal estate were then settled upon tenants for life tible pro- 
 with remainders over. The will contained a wide power of perty or 
 investment in specified securities. On his death the testator i|"vestnieiits' 
 possessed (1) numerous ships ; (2) securities falling within if settlement 
 those authorised by the will ; and (3) shares and investments ^"®"^* 
 not so authorised. The ships could not be immediately sold, 
 nor could the unauthorised securities. Both, pending sale, 
 produced a high rate of income ; and the question arose, 
 whether the tenants for life were entitled to the whole of that 
 income, or only to some, and if so, what, proportion thereof? 
 In giving judgment. Lord Cairns said : " We find no indica- 
 tion whatever of an intention that the ships were to remain 
 unconverted for any specific time. The testator, who had 
 been engaged in the shipping business, knew perfectly well, 
 and shows that he knew, that some time would necessarily 
 be taken in converting the ships ; and therefore he very 
 wisely provided that, until they were sold, the executors 
 should have a power (which otherwise they would not have 
 possessed), viz., the power to sail the ships for the purpose 
 of making profit. But, in giving that power, he does not 
 give it as a power to be exercised for the benefit of the 
 tenant for life as against the parties in remainder, or for 
 the benefit of the parties in remainder as against the interest 
 of the tenant for life, but says that it is to be exercised for 
 the benefit of the estate, meaning, as I apprehend, for the 
 benefit of the estate generally, without disarranging the 
 equities between the successive takers. In that state of 
 things, it seems to me that the case falls exactly within the 
 third division pointed out by Sir James Parker, in the case 
 of Meyer v. Simonsen (d), and that a value must be set upon 
 the ships as at the death of the testator, and the tenant for 
 life must have 4 per cent, on such value, and the residue of 
 
 (c) 2 Ch. App. 751 ; and see also Hnme v. Richardson, 4 De G. F. k 
 J. 29, and Re Lynch Blosse, Rickards v. Lynch Blosse, (1899) W. N. 
 27. 
 
 (d) 5 De G. & S. 723.
 
 176 
 Art. 37 
 
 THE ADMINISTRATION OF A TRUST. 
 
 the profits must of course be invested and become part of the- 
 estate. Then, secondly, as to the authorised securities, the 
 tenant for life is, in my opinion, entitled to the specific 
 income of the securities, just as if they had been 8 per cent, 
 consols. I understand the words of the will as amounting 
 to the constitution by the testator of a larger class of autho- 
 rised securities than this court itself would have approved 
 of, and the court has merely to follow his directions, and 
 treat the income accordingly, as being the income of autho- 
 rised securities. Then comes the third question in the case, 
 the securities not ranging themselves under any of those men- 
 tioned in the last clause of the will. As they do not come 
 within the class of authorised securities, it was the duty of 
 the trustees to convert them at the earliest moment at which 
 they properly could be converted. I do not mean to say 
 that the trustees were by any means open to censure for not 
 having converted them within the year after testator's death, 
 but I think that the rights of the parties must be regulated 
 as if they had been so converted. I think the proper order 
 to make, is that which was made in Dimes v. Scott (c), 
 followed by V.-C. Wigram in the case of Taylors. Clark [f),. 
 namely, to treat the tenant for life as entitled, during the 
 year after the testator's death, to the dividends upon so 
 much 3 per cent, stock as would have been produced by the 
 conversion and investment of the property at the end of the 
 year." It will be perceived that his lordship speaks of 
 3 per cent, stock as the proper measure of the interest to be 
 paid to the tenant for life in respect of the unauthorised 
 securities pending sale. Whether, however, this holds good 
 now that consols have been converted to 2| per cent., and a. 
 larger range of secux'ities authorised for the investment of 
 trust funds, appears somewhat questionable. It is, however,. 
 submitted that 3 per cent, would still be the standard 
 having regard to recent analogous cases ({/). 
 
 'reliant for 6. In the abovc cases, the income actually received by the 
 
 lift! t!iitiilwl trustees exceeded that which they were authorised to pay to 
 
 tnrpiiHoi the tenant for life ; hut the same principle applies in favour 
 
 n( Ml -income;- of the tenant loi- lilo, where the property is not presently 
 
 iH-rty'whoii' saleable or realisable except at an unreasonable loss, and, 
 
 (7) Sc(! Hiiprd, note (a), jn r Kkkkw icii, .1., in Ilojit v. D'Hcdouvilky 
 [IskjJ'JCli., at p. ;}U8.
 
 SALE DELAYED (TENANT FOR LIFE AND REMAINDERMAN). 177 
 
 pending realisation, produces no income. For instance, Art, 37. 
 where part of the estate consists of a policy of assurance on 
 another's life, which does not fall in for some years after the 
 testator's death, or a reversion (Ji), unless the settlor contem- 
 plates that it shall not be sold (i), it would be unfair to the 
 tenant for life that he should lose all the intervening income. 
 In such cases, when it does fall in, the money must be 
 apportioned, as between capital and income, by ascertaining 
 the sum which, put out at 3 per cent, (j) per annum on the 
 day of the testator's death, and accumulated at compound 
 interest with yearly rests, and deducting income tax, would, 
 with the accumulations, have produced the amount actually 
 received. The sum so ascertained must be treated as 
 capital, and retained by the trustees ; but the residue is 
 income, and must be paid to the tenant for life (k). The 
 same principle applies where a debt due to the estate is 
 recovered by the trustees without interest [l). 
 
 7. "Where part of a testator's residuary estate consisted of Income de- 
 
 a colliery of which he was mortgagee in possession, the pTOpertv"^ 
 
 •question arose as to how accumulations of the income, of which 
 
 derived from working the colliery since the testator's death, ^•^^^^^o'^' ^^^.^ 
 . ^ •' ' mortgagee in 
 
 were to be apportioned between tenant for life and remain- possession. 
 
 dermen. It was held that the proper principle was, that 
 
 so much as would, if invested at the testator's death at 4 per 
 
 cent, with yearly rests, have amounted to the sum in the 
 
 hands of the trustees, should be treated as capital, and the 
 
 rest as income (m). In other words, the income received 
 
 from the colliery, less 4 percent., was considered as received 
 
 on capital account, the 4 per cent, being paid to the tenant 
 
 for life without prejudice to his rights to further allowances 
 
 on account of interest in the event of the colliery being 
 
 realised. Nowadays 3 per cent, would be substituted for four. 
 
 (h) Be Hobson, 53 L. T. 627 ; BowUs v. Bebb, [1900] 2 Ch. 107. 
 
 (i) Be Fitcairn, Brandreth v. Colviii, [1896] 2 Ch. 199 ; but cf. Be 
 Hiibbiick, Hart v. Stone, note (o) infra. 
 
 (j) Be Goodenongh, Morland v. Williams, [1895] 2 Ch. 537 ; and Be 
 Duke of Cleveland, Hay v. Wolmer, ib. 542. It was formerly 4 per 
 cent. 
 
 (k) Be Earl of Che»terfi.eld, 24 Ch. D. 643 ; and see also Massy v. 
 Gahan, 23 L. R. Ir. 518 ; Be Morhy, Morley v. Haig, [1895] 2 Ch. 738. 
 
 (I) Be Duke of Cleveland's Estate, Hay v. Wohner, [1895] 2 Ch. 542. 
 
 {m) Be Godden, Teacjue v. Fox, [1893] 1 Ch. 292.
 
 178 
 
 THE ADMINISTKATION OF A TEUST. 
 
 Art. 37. 
 
 Corpus 
 realised by 
 insutEcient 
 security 
 where 
 interest in 
 
 8. Where a trust security turns out to be insufficient upon 
 realisation, and interest is in arrear, the security is treated as 
 if it had been a security for the amount realised, plus the inte- 
 rest which has actually been received by the tenant for life. 
 The sum thus ascertained is then divided between tenant for 
 life and remainderman, in the proportion which the interest 
 arrear. (at the stipulated rate) which the tenant for life ought to have 
 
 received, bears to the capital sum which was secured by the 
 mortgage, the tenant for life giving credit for all income 
 actually received by him {n). This principle even applies 
 where the settlor has directed that the actual income of his 
 estate pending conversion shall be treated as income, but 
 that no joropcrty not actually 'prodiLcincj income shall he 
 treated as lyroclucing any — surely a very strong decision (o). 
 
 I^ents 9. Where rents were directed to be accumulated beyond 
 
 be accunui- ^^® statutory period, it was held that after twenty-one years 
 
 later! beyond from testator's death they fell into his residuary estate during 
 
 ^3e'r"d*'^^ the remainder of the period for which they were directed to 
 
 treated as be accumulated ; but that as between tenant for life and 
 
 corpus. remaindermen (of the residue) they must be treated as 
 corpus and not as income (2^). 
 
 Aet. 38. — Diitjj of Trustee in relation to tlie 'pay- 
 ment of outgoings out of Corpus and Income 
 respectively. 
 
 Subject to the directions of the settlement, and 
 of p;irticulixr statutes, the following rules govern 
 the incidence of outgoings — 
 
 (1) The corpus bears capital charges, and the 
 income bears the interest on them (q). 
 
 (n) AV Fof,/r.r, Lloijd v. Can; 4,") Ch. 1). 629 ; Rr AnrbtUI, 27 L. R.- 
 Ir. '.YM ; and IMnx v. Ncwiniitoii, 52 L. T. 512; but sec contniy 
 Lyon V. Mitrhll (NoKTif, J.), W. N. (1899), 27. 
 
 (o) III J/iihhnrL-, llarl. v. Stom; (1S9(;] 1 V,\\. 751. 
 
 (p) li< l'<>},<; Shar/> V. Marx/ui//, \ I'.MH | I Cli. 01. 
 
 (7) Mar.'ihall. v. Crointhtr, 2 Cli. 1). 199 ; Wlutltrcad v. Smith,. 
 2 1). M. & (1. 741 ; and sou and cQn.sider Norton v. JohiMtone, 30 Ch. 1).. 
 049.
 
 DUTY OF TRUSTEE IN RELATION TO OUTGOINGS, ETC, 170 
 
 (2) The income bears current expenses Art. 38. 
 
 incident to the possessory ownership 
 of property (r) inchiding the cost of 
 keeping leaseholds (s), but not freeholds 
 or copyholds, in repair (t). 
 
 (3) Where repairs to freeholds or copyholds 
 
 are necessary («), or fines become pay- 
 able for the renewal of leases (x), or for 
 putting in repair leasehold property 
 which was out of repair at the date of 
 the creation of the trust (;?/), applica- 
 tion should be made by the trustees to 
 the court, which will give directions for 
 the raising of money to pay for them in 
 such a way as to distribute the burden 
 equitably between income and corpus. 
 
 (4) All costs incident to the administration 
 
 and protection of the trust property, 
 including legal proceedings, are borne 
 by corpus (z) unless they relate ex- 
 clusively to the tenant for life (a) . 
 
 Illustrations of Paragraph (1). 
 
 1. Where a capital sum is secured on property, it is Charges 
 
 payable out of corpus, but the interest on it is payable out '^"^^ mcum- 
 
 orciricGs. 
 
 (r) Foitntain v. Pellet, 1 Ves. jun. 337, 342, rates and taxes ; Shore v. 
 Shore, 4 Drew. 510, receiver's commission and expenses of passing 
 accounts. 
 
 (s) See Ee Gjers, Coope v. Gjers, [1899] 2 Ch. 54 ; and Be Betty, ih. 
 831. 
 
 (t) Be Courtier, Coles v. Courtier, 34 Ch. D. 136. 
 
 (u) Per Cotton and Lindley, L. JJ., Be Hotchkys, Freke v. Calmady, 
 32 Ch. D. 408. 
 
 {x) Seton on Decrees, 4th ed. , 1270 ; White v. White, 9 Ves. 556 ; 
 Nightingale v. Lawson, 1 B. C. C. 440. The law as between tenant for 
 life and remaindermen in respect to renewal of leases is not altered by 
 s. 19 of the Trustee Act, 1893 (Be Baring, Jeune v. Baring, [1893] 1 Ch. 61). 
 
 (y) Be Copland, Johns v. Carden, [1900] 1 Ch. 326. 
 
 (z) Lord Brougham v. Potdett, 19 Beav. 135 ; Sanders v. Miller, 
 25 Beav. 154 ; Be Earl De la Warr's Estates, 16 Ch. D. 587 ; Stott v. 
 Milne, 25 Ch. D. 710 ; explained by Andrews v. Weall, 37 W. R. 779. 
 
 (a) See Be Mamer, 3 Eq. 432 ; Be Evans, 7 Ch. App. 659 ; Be Smith, 
 9 Eq. 374. 
 
 N 2
 
 180 THE ADMINISTRATION OF A TRUST. 
 
 Art. 38. of income (b). And this rule prevails even where a debt is 
 secured by, or is payable as, an annuity. In such a case the 
 annuity must be valued, and the tenant for life will then 
 contribute an amount equal to interest ou the valuation at 
 4 per cent. (c). Ai-rears 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 [d). 
 
 2. The strong inclination of the court to saddle capital 
 charges on corpus, is well exemplified by the modern case 
 of Norton v. Johnstone (e). There, a testator had directed 
 the income of certain estates to be accumulated until the 
 amount of the accumulations should be sufficient to pay off 
 existing mortgages, and that, subject thereto, the property 
 should be held to the use of the plaintiff for life, with 
 remainders over. Before the accumulations were sufficient 
 to discharge the mortgages, the mortgagees sold a part of 
 the property, and, with the moneys so produced, and part of 
 the moneys already accumulated, the mortgages were paid 
 off. The tenant for life then claimed to be let into posses- 
 sion, 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 contem- 
 plated by the testator, the accumulation 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. Mr. 
 Justice Pearson, 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 wliich 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. 
 
 (I>) Mar'<haJl v. Crowlher, 2 Ch. I). 197: Wlii/Jrread v. Smith, 
 3 D. M. <fe a. 741 ; and see Allhnscn v. Whiittll, 4 Kcj. 295. 
 
 (c) linhntr v. Axtte.v, 1 I'll. 4-2-2 ; Play/air v. Cooper, 17 Beav. 187; 
 L>,/ V. L>i/, 6 Va[. 174 ; Jit Miifttf, Jo'nen v. Maxon, 39 Ch. D. 534 
 {ijuicliaHe-nioiicy coii.sisting of a life annuity) ; and L'e Bacon, Grissdl v. 
 LcfillKx, GS L. 'J\ 5'2-2. 
 
 (d) lii-.rd V. Wuikinmn, 1 Ves. 93; PInyfair v. Coopfr, 17 Beav. 187. 
 
 (e) 30 Ch. D . 649 ; and see also Towmoii v. Jlarrinon, 43 Ch. D. 55.
 
 DUTY OF TRUSTEE IN RELATION TO OUTGOINGS, ETC. 181 
 
 3. Where, however, on the expiration of a lease granted by Art. 38. 
 the settlor, the tenant for life is obliged to pay compensation 
 
 for improvements to the outgoing lessee under a covenant in 
 the lease, he has no claim to saddle the compensation on 
 corpus. For as Jessed, 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"(/). However, this does not apply 
 to compensation payable under the Agricultural Holdings 
 Act, 1883 (46 & 47 Vict. c. 61), as the incidence of such com- 
 pensation is expressly provided for by s. 29 of that Act. 
 
 4. Calls on shares which form part of a trust estate, are Calls on 
 outgoings attributable to capital and not to income, and are shares, 
 accordingly payable out of corpus ((/). 
 
 Illusteations of Pakagbaph (2). 
 
 1. All charges of an annual character, except annual Current 
 charges to secure capital sums, are payable out of income ; '^'^^^''^^ 
 for otherwise the corpus would inevitably decrease year by 
 year, and would ultimately be swallowed up. Thus, the 
 income must bear rates and taxes (/i), the rent payable for, 
 and the expenses incident to the observance and perfor- 
 mance of the covenants and conditions in relation to lease- 
 hold hereditaments (i). But a tenant for life is not liable 
 to have his income taken for breaches of covenant not 
 occurring in his time (k). 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 (l), are 
 payable by the tenant for life ; but not, it would seem, the cost 
 of a thorough reconstruction of the sewers of a house (m). In 
 
 (/) Mcmsel v. Norton, 22 Ch. D. 769. 
 
 (g) Todd V. Moorhouse, 19 Eq. 69. 
 
 (h) Fountain v. Pellett, 1 Vea. jun. 337, 342. 
 
 (^■) He Gjers, Cooper v. Ojers, [1899] 2 Ch. 54 ; Re Betty, ih. 831 ; 
 sed cf. Re Tomlinson, [1898] 1 Ch. 232. 
 
 (h) Re Betty, snpra. 
 
 (I) Re Copland, Johns v. Carden, [1900] 1 Ch. 326 ; and Re Lever, 
 Cordwell v. Lerer, [1897] 1 Ch. 32. 
 
 (wi) Re Thomas, Weatherall v. Thomas, [1900] 1 Ch. 319 ; and see 
 infra, p. 183 et seq.
 
 182 THE ADMINISTEATION OF A TRUST. 
 
 Art. 38 the United States of America it has been held that an extra- 
 ordinary tax such as a tax for betterment, or for making up 
 a highway, is chargeable to corpus («). Of course annuities 
 charged on income (o), the commission or poundage payable 
 to a receiver, and the expenses incident to the preparation 
 and passing of his accounts must be borne by income (j)). So 
 where a life policy forms part of the settled property, the 
 premiums are payable in the first instance out of income 
 and not capital (g), but are, it would seem, repayable to the 
 tenant for life when the policy falls in with interest at 4 per 
 cent. (r). On the same ground, where a rent-charge is 
 redeemed by the tenant for life, he is only entitled to be 
 recouped, out of corpus, the amount paid, less the value of 
 the redemption to his life estate (s). Where trustees are 
 directed to insure the trust property against loss or damage 
 by fire, the premiums must be borne by income. Up to 
 the end of 1888, it was questionable whether trustees could 
 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), trustees are authorised to make 
 such insurances to any amount not exceeding three-fourths 
 of the value of the building or property insured, and to pay 
 the premiums out of income ; but the section does not apply 
 to simple trusts. 
 
 Losses ^* ^^^^6^'® ^ business is vested in trustees in trust for 
 
 on trust successive tenants for life and remaindermen, the net losses 
 
 business. q^ q^^q year's trading must, under ordinary circumstances, 
 be made good out of the profits of subsequent years, and 
 not out of capital [t). 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, 
 
 (n) Tnppcr v. Fnlhr, 7 Rich. Ecj. 107 ; Varncy v. Stcreno, 22 Mex. 
 .3.31; JIdrraril dollajr v. Ahkrman, 104 Mass. 470; Plympton v. 
 DiKjx iiMiry, lOG ib. .044. 
 
 (o) yVw;v. C'oo/>r;r, 17Heav. 187, H):?; .l/Z/A /v. y//^^W/e,s^o?i,3M.&(J.513. 
 
 (])) Short. V. Shore, 4 Drew. r)l(). 
 
 (7) ll>. Wav(,h, 2r» W. K. .5r).-). 
 
 (/•) l!< Morhy, Morlty v. J/au/, [1S9.')| 2 Cii. 738. 
 
 {h) Jlc JJabi of LdiiHtir, 21 L. II. Ir. l.")2. 
 
 (0 Uplon V. Brown, 20 Cii. D. r)88.
 
 DUTY OF TRUSTEE IN RELATION TO OUTGOINGS, ETC. 183 
 
 'does not seem to apply where a business is not carried on Art. 38. 
 
 under a direction in the settlement, but is merely carried 
 
 on temporarily until it can be sold profitably. 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 4 (query 3) per cent, per annum 
 
 on the day when the business ought to have been sold, 
 
 (if it could have been) and accumulated at compound 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 (vt). 
 
 3. However, where, on the facts, it appears to have been Secus where 
 
 the settlor's intention that losses on a trust business should j"t«ntion can 
 
 be implied 
 be borne by capital, effect will be given to that intention, that losses 
 
 For instance, where partners carry on a business, each f'^^^^ ^\^ 
 
 . . ^ 11-1 7-1 borne liy 
 
 partner havmg the right to bequeath his share, a7ia it lias capital. 
 
 been the partnership custom to write off the losses of un- 
 
 prosperous years from each partner's share of capital, that 
 
 custom will be continued, even as between a tenant for life 
 
 and remainderman, in whose favour one of the partners has 
 
 bequeathed his share (.r). 
 
 Illustrations op Parageaph (3). 
 
 1. Very generally, well-drawn settlements of house pro- Repairs, 
 perty 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 legal tenant for life of 
 freeholds is not compellable to keep property in repair (y), 
 and as the court has no jurisdiction (where there is no trust) 
 to make any order charging the cost of repairs, or any part 
 
 {u) Re Hengler, Frowde v. Hengler, [1893] 1 Ch. 586. 
 
 Ix) Gow V. Forster, 26 Ch. D. 672. 
 
 (y) Re Cartwright, Avis v. Newman, 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 the settlements 
 j( Woodhouse v. Walker, 5 Q. B. D. 404).
 
 184 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 38. of it, on corpus (z), the result is not infrequently extremely 
 embarrassing and prejudicial to all parties (a). 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 the trustees (at all events where they have a 
 power of, or trust for sale (b)), it would seem that the court 
 has jurisdiction to make an order empowering them to raise 
 money for making repah's necessary for the preservation of the 
 property (c), or even for erecting additional buildings neces- 
 sary for rendering the property tenantable or saleable (d), 
 and of apportioning the cost equitably between income and 
 corpus (e). Indeed, it has been held that trustees may,, 
 without any order, do such repairs to leasehold property as 
 are necessary to prevent a forfeiture of the lease (/), and 
 repay themselves out of the income (/), but without pre- 
 judice to the rights of tenant for life and remaindermen 
 inte?- se (g). But this was expressly on the ground that 
 trustees may expend money by way of salvage, and have 
 a lien both on income and corpus for expenses properly 
 incurred by them, as wiU be seen later on (li). But although 
 the court has jurisdiction to authorise a charge on the entire 
 estate which is the subject of the settlement for the purpose 
 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. 
 
 (=) 7?^ De Ttisf<kr, De Teissier v. De Teissier, [1893] 1 Ch. 153. 
 
 (a) The same difficulty occurs in the United States of America, where 
 it is settled tliat, in the absence of exjjress 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 cost himself (Tlinrston v. Dickerson, 2 Rich. 
 Eq. 317 ; Co(/.swe/l v. Co(jswe//, 2 Edw. Ch. 231). 
 
 (b) iSee per Chittv, J., Bt De Teissier, De Teissier v. De Teissier, 
 stij/ra. 
 
 (r) See per Cotton and Lindley, L.JJ., Re Hotchkys, Freke v. 
 CiUmndy, 32 Cli. I). 4(18 ; lie Courlier, Coles v. Courtier, 34 Ch. U. 136 ;. 
 but see roulra Hilihiri v. Cooke, 1 S. & (S. 552 ; and Dent v. Dent, 
 30 Beav. .303. 
 
 (<!,) Coinray y. Fnifo)i, 40Cii. 1). 512; Ne Hovsehohl, 27 Ch. D. 553 ^ 
 and see Drake v. Trefiisin, 10 Ch. A])p. 364, and Frith v. Cameron,^ 
 12 Eq, 160 ; but rf. lie De Tahtey, 75 L. 1\ .328. 
 
 ('-) //' Jlotrhkys, Friki v. Cdhmuh/, siijira. 
 
 {/) fir Foir/rr, Fowbr V. O'IjII, 16 Cii. I). 723. 
 
 (.'/) A'' Ilolrhkys, Freke v. Cuimady, supra. 
 
 (h) Art. 6.5, infra.
 
 DUTY OF TRUSTEE IN RELATION TO OUTGOINGS, ETC. 185 
 
 The cases are very obscure as to this, but the following Art. 38. 
 propositions are submitted, viz. : 
 
 (1) Where the property was in disrepair when the tenant 
 
 for life came into possession, then whatever its 
 tenure may be, the court will not throw the cost 
 exclusively on him, but will sanction a mortgage, 
 and will equitably apportion the ultimate cost 
 between corpus and income (i). There is, however, 
 no reported case showing how this equitable appor- 
 tionment 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 ex- 
 tending over that period. And where trustees 
 under a power invested money in the purchase of 
 real estate out of repair, the cost of putting it in 
 repair was thrown exclusively on capital (k). 
 
 (2) Where the property was not in disrepair when the 
 
 tenant for life came into possession, and is of lease- 
 hold tenure, the better opinion seems to be that the 
 question is governed by the maxim qui sensit com- 
 modum debet sentire et onus, and that the equitable 
 tenant for life, as he enjoys the income of the 
 property, must keep it in repair (Z). 
 
 (3) But where it is freehold, it would seem that unless 
 
 the settlement expressly or impliedly authorises 
 the trustees to pay for current repairs out of the 
 rents, the trustees must apply to the court for 
 directions, in which case the court will equitably 
 apportion the repairs between capital and in- 
 come (k). With regard to the repair of infants 
 
 {i) Be Courtier, Coles v. Courtier, 34 Ch. D. 136, as explained in Be 
 Bedding, [1897] 1 Ch. 876 ; Be Betty, [1899] 1 Ch. 821, and Kingham v. 
 Kingham, [1897] 1 Ir. R. 170; acquiesced in by Kekewich, J., in Be 
 Gjers, Cooper v. Gjers, [1899] 2 Ch. 54, contrary to his previoiis deci- 
 sion in Be Tomlinson, [18981 1 Ch. 232. 
 
 {k) Be Freman, Dimond v. Newhurn, [1898] 1 Ch. 28 ; but (/. Be De 
 Tabley, 75 L. T. 328. 
 
 {I) Kingharn v. Kinglimn, sti,pra ; Be Bedding, sujira ; Be Betty, 
 supra ; Be Gjers, Cooper v. Gjers, supra.
 
 186 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 38. 
 
 Renewal of 
 
 renewable 
 
 leases. 
 
 Fencing of 
 
 uiifenced 
 
 land. 
 
 estates, the reader is referred to the classification 
 made by Mr. Kenyon Parker, and set forth in 
 21 Ch. D., at p. 787, and to the case oilBe 
 Haivher, Duff v. Haivher {m) . 
 
 2. 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 reqmred 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 
 
 enewal, then the Act does not apply unless he gives his 
 consent. The 2nd sub-section provides that — 
 
 " If money is required to pay for 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 com- 
 prised in the renewed lease, and if he has not in his hands sufficient 
 money for the purpose, he may raise the money required by mortgage 
 of the hereditaments 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 suliject, 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 more 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 has been recently held by Kekewich, J., 
 that its object was merely to assist trustees in renewing 
 leases, and in no way affects the ultimate incidence of the 
 expense as between tenant for life and remaindermen (n). 
 
 3. 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 part 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 coi-pus exclusively (o). 
 
 (m) 66 L. J. Ch. 341. 
 
 (n) Hi JJarini/, Jemie v. lidriiKj, [189.3] 1 Ch. 61. 
 
 («->) Kdd Cniricy v. Wtlhxhy, 1 Va\. 6.")6 ; ami sou now Settled Land Act, 
 1KS2 (4.1 & 46 Vict. c. .SH), h.'2.'), and judgniunt of Kkkewich, J., in Re 
 Ttrwy, [181)8] 1 Ch. 508, and as to alterations and additions reasonably
 
 DUTY OF TRUSTEE IN RELATION TO OUTGOINGS, ETC. 187 
 
 Illustrations op Paeageaph (4). Art^8. 
 
 1. Legal expenses incident to the administration of a < General costs 
 trust almost exclusively fall on capital, unless the settlor administra- 
 has expressly provided for them ; for they are for the benefit tion. 
 of all persons interested. Thus, the costs of the appoint- 
 ment of new trustees (p), the costs incident to the invest- 
 ment or change of investment of trust funds (q), the costs of 
 obtaining legal advice (r), and of taking the direction of the 
 coiirt (s), the costs of an administration action {t), the costs 
 of paying money into court under the Trustee Act, 1893 
 (56 & 57 Vict. c. 53) (u), the costs of bringing or defending 
 actions against third parties for the protection of the 
 estate (x), and the like, are all payable out of corpus. 
 On the other hand, where money is paid into court under 
 the Trustee Act, 1893, 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 (y). But 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 succes- 
 sively 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 payable out of corpus (z). As 
 
 necessary for enabling a house to be let, see Settled Land Act, 1890 
 (53 & 54 Vict. c. 69), ss. 13, 15, and Stanford v. Boberts, [1901] 1 Ch. 440. 
 
 {p) Be Fellows, 2 Jur. (x.s.) 62; Be Fulham, 15 ih. 69; Ex parte 
 Davies, 16 ih. 882. 
 
 (g) But secits, of petition to vary investment of funds in court, see 
 Equitable Society v. Fuller, J. & H. 379. 
 
 (r) Poole V. Pass, 1 Beav. 600. 
 
 (s) Be Elmore, 9 W. R. 66 ; Be Leslie, 2 Ch. D. 185. 
 
 {t) Be Turnley, 1 Ch. App. 152. 
 
 {u) Be Whitton, 8 Eq. 353. 
 
 {x) See Stott v. Milne, 25 Ch. D. 710 ; Hamilton v. Tighe, [1898] 
 Ir. R. 123 ; and see also Be Earl De la Warr's Estates, 16 Ch. D. 
 587, and Be Earl of Berkeley's Will, 10 Ch. App. 56. And as to defend- 
 ing foreclosure actions and obtaining transferees of the mortgage, see 
 More V. More, 37 W. R. 414. 
 
 (y) Be Marner, 3 Eq. 432 ; Be Evans, 7 Ch. App. 609 ; Be Whitton, 
 8 Eq. 352 ; Be Smith, 9 Eq. 374. The costs of a petition for advice as 
 to the application of income have been ordered to be borne bv income : 
 Anon., 8 W. R. 333 ; 2 L. T. 71 ; i?e T—, 15 Ch. D. 78. But secus, 
 as to costs of petition in an administration suit for payment of income 
 to tenant for life, which are payable out of corpus : Longuet v. Hockley, 
 22 L. T. 198 ; Scrivener v. Smith, 8 Eq. 310; but see Eady v. Watson, 
 12 W. R. 682, contra. 
 
 (z) Scrivener v. Smith, supra.
 
 188 THE ADMINISTRATION OF A TRUST. 
 
 Art. 38. 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." 
 
 Art. 39. — Duty of Trustee to exercise 
 Beasonable Care. 
 
 Trustees are not insurers (a), 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 (h). The mere fact that a trustee has acted 
 under the advice of his counsel or solicitor will 
 not necessarily excuse him (c) where a breach of 
 trust has been committed ; nor, on the other 
 hand, does the fact that a trustee is remunerated 
 add to his liabilty (r/). 
 
 Illustrations. 
 
 Difficulty ot 1. Although the rule is well settled that a trustee dis- 
 
 applying the djaj-rres his duty if he manages the trust estate with those 
 jH'iTKiple. "^ . •' '^ o,. 
 
 precautions wnicli an ordniary prudent man oi busmess 
 
 (a) lie Ilnrat, Addixoii. v. Topp, G7 L. T. 99. 
 
 {!)) lirirc. V. *S7ofe«, 2 Wli. & 'I'u. G3;i ; MasHey v. Bnvner, 1 J. & W. 
 247 ; nn//ork V. Jhillofh; m L. J. Ch. 221 ; l^ptiiiht v. ilamit, 9 App. 
 (/'as. 1. As to tho jn'otcctioii now accorded to tmiHtecs who have de 
 J'arlu committed brcaciies of tru.st whoro thoy have acted honestly and 
 reaHonahly, see in/'ra., Art. 70. 
 
 {<■) JJoi//r. V. n/ab; 2 Sch. & L. 243 ; AV. Kvvjlif, 27 Beav. 49. But it 
 may he evidence of dilij^cncc, in cascH wiiere tiie alleged breach is 
 negligence. Kee par l^oid VVathon, Nc. Whilchij, WItitilcy v. Learoyd, 
 12 A. (J. 734, and t>toll v. Miliic, 2.'"i Ch. 1). 710; and'seo now also 
 Judicial Trustees Act, 189() ('M & (10 Vict. c. .35). 
 
 (d) .h,l.si,a V. ralnur, |1H!)3| 1 ( 'h. 71.
 
 DUTY OF TRUSTEE TO EXERCISE REASONABLE CARE. 189 
 
 would take in managing similar affairs of his own, it is a Art. 39. 
 
 rule which is not easy of application. The difticulty 
 
 arises from the fact, pointed out by Lord Blackburn 
 
 in the leading case of Speight v. Gaunt (e), 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." Moreover, Lindley, L.J., has recently 
 
 laid it down (at all events in regard to making investments) 
 
 that in applying the rule, "care must be taken not to lose 
 
 sight of the fact that the business of the trustee and the 
 
 business which the ordinary prudent man is supposed to be 
 
 conducting for himself is the business of investing money 
 
 for the benefit of persons who are to enjoy it at some future 
 
 time, and not for the sole benefit of the person entitled to 
 
 the present income. The duty of a trustee is not to take 
 
 such care only as a prudent man would take if he had only 
 
 himself to consider ; the 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 morall5^ bound to provide. That is the kind of 
 
 business the ordinary prudent man is supposed to be 
 
 engaged in, and unless this is borne in mind, the standard 
 
 of a trustee's duty will be fixed too low, lower than it has 
 
 ever yet been fixed, and lower certainly than the House 
 
 of Lords, or this court, endeavoured to fix it in Speight v. 
 
 Gaunt " (/). 
 
 The principal cases in which the care demanded of a 
 trustee has been considered, are those arising out of the 
 investment of trust funds ; but as the duties of a trustee in 
 regard to investment are of extreme importance, they will 
 be treated of separately in the next article. For present 
 purposes, the illustrations to the article now under considera- 
 tion will be restricted to cases which do not arise out of the 
 careless investment of trust moneys. 
 
 2. It is the duty of a trustee to realise debts owing to the Realization 
 trust estate with all convenient speed {g). He should not ^ ^ ^• 
 
 (e) Supra. 
 
 (/) Be Whitdey, Whiteley v. LearoycL 33 Ch. D., at p. 3.35 ; and see 
 Illustration of Para. (2) on p. 209, infra, 
 (g) Buxton v. Buxton, 1 My. & Cr. 93.
 
 190 THE ADMINISTEATION OF A TRUST, 
 
 Art, 39, only press for payment, but, if they are not paid within a 
 reasonable time, should enforce payment by means of legal 
 proceedings {h). It has been said that the only excuse for 
 not taking action to enforce payment of such debts is a well 
 founded belief, on the trustee's part, that such action would 
 be fruitless, 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 (h). Whether, 
 how^ever, this broad dictum is consistent with s, 21 of the 
 Trustee Act, 1893 (56 & 57 Vict. c. 53) (which is merely a 
 re-enactment of s. 37 of the Conveyancing and Law of 
 Property Act, 1881 (44 & 45 Vict, c, 41)), is respectfully 
 questioned. The late Sir Geoege Jessel, M,K., at all 
 events thought that the probable effect of that enactment 
 w^as to make the question entirely one of good faith and not 
 one of 10 ell founded belief (f). 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 reason- 
 ably, w^ould seem to give statutory effect to this view(j/'). 
 
 3. 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 realization of a 
 debt due from him to the trust estate, and the other bene- 
 ficiaries (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 any consequent losses {h). 
 However, the practitioner 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 the omis would 
 distinctly lie on the trustee, to prove that ih.& facts luere as 
 
 (/() /.V; /Iroi/d'v, nUliiKi V. /iro(/(/(v, :J8 Ch. 1). 546, and Millars^ 
 Trnxl(.(.>i V, I'olHon, 'M S<;.'L. U. 7!)S. 
 
 (/) I'c Oin'.vH, 47 L. 'r. 01, and infra, Illn.stration 5, 
 
 (_/) Sc(; iiijra, Art. Id. 
 
 (L) W'lird'v. Ward, 2 II. L. C. 784; and see lie Hurst, Addison v. 
 Topp, 07 L. 'I'. 1)0.
 
 DUTY OP TRUSTEE TO EXERCISE REASONABLE CARE. 191 
 
 he believed them ; and the difficulty of proving this (perhaps Art. 39. 
 many years afterwards), is obvious. In all such cases, 
 therefore, where a trustee is doubtful whether he should sue 
 a debtor or not, the proper course is to issue an originating 
 summons asking the direction of the court. By taking this 
 course, the trustee is relieved from a heavy responsibility at 
 a trifling cost to the trust estate (l). 
 
 i. So in Be Medland, Eland v. Medland (m), Noeth, J., 
 held that when a security, proper at the date of investment, 
 subsequently becomes deteriorated, so as to leave no safe 
 margin, it is not necessarily the duty of the trustees to call 
 the money in ; but they have a discretion, which they must 
 exercise as practical men, with a due regard to all the 
 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 breach of trust by reason only of 
 his continiiing 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 doubt- 
 ful (7^). 
 
 5. Trustees might always release or compound debts due Compounding 
 to the trust estate, where they bond fide and reasonably '^^'^°''^- 
 believed that that course was for the benefit of their 
 beneficiaries (o). 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 and Law of Property Act, 
 1881 (44 & 45 Vict. c. 41)), two or more trustees acting 
 together, or a sole acting trustee, tvhere a sole trustee is, 
 by the settlement, authorised to execute the trusts and poiocrs 
 
 [1) Re Brogden, Billing v. Brogden, 38 Ch. D., at p. 556. 
 
 (to) 11 Ch. D. 476; and see also Robinson v. Robinson, 1 D. M. & G. 
 252 ; and Re Chajmian, Cocks v. Chapman, [1896] 2 Ch. 763. 
 
 (k) Kekewich, J., held that it was not (Re Chapman, Cocks v. Cha2J- 
 man, [1896] 1 Ch. 323), but on appeal the Court of Appeal expressed no 
 opinion on that point. 
 
 (o) Blue V. Marshall, 3 P. W. 381 ; Forshaw v. Higginson, 
 8 D, M. & G. 827.
 
 192 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 39. 
 
 Allowing 
 rents to fall 
 ill arrear. 
 
 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, compoimd, abandon, 
 submit to arbitration, 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, ivitliout being responsible for any 
 loss occasioned by any act or thing so done by him or them 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.E., 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'Yi^)- I* is somewhat 
 curious that this statutory authority was not i-eferred to, 
 either by counsel or the court, in the case of Be Brogden^ 
 Billing v. Brogden, s^ipra, but it is apprehended that it was 
 rightly assumed, that it could not apply to that case. 
 For two of the trustees were the debtors, and must have 
 known their own pecuniary position, and therefore could 
 not have acted in good faith in the matter ; and, as to the 
 third trustee, having regard to the fact of his co-trustees 
 being the debtors, he was practically a sole trustee in the 
 matter, and yet was not a sole trustee who was by the 
 settlement authorised to execute the trusts and powers 
 thereof. Anyhow, until s. 21 of the Trustee Act, 1893, is 
 judicially interpreted, trustees would, in most cases, be ill- 
 advised to act upon it without judicial sanction in view of 
 the decision in Be Brogden, Billing v. Brogden. 
 
 6. Where trustees allowed rents to get in arrear which 
 they might have recovered by proper diligence, it was held 
 that they were liable to make good the arrears, though 
 without interest, the judge saying : " If there be crassa 
 ncgligentia and a loss sustained by the estate, it falls upon 
 the trustee "(<?). 
 
 (p) U< Oii-tnx, 47 L. T. (il. 
 
 (ry) 7'eWw v. Car])(,nl<r, 1 Madd. 291 ; and sec as to interest, Zowson v. 
 Copdaiid, 2 13. C. C liiC ; Wilcn v. (Jrtahain, 2 Drew. 258 ; lioiuley v. 
 Adamx, 2 H. L. C. 72.J.
 
 DUTY OF TRUSTEE TO EXERCISE REASONABLE CARE. 193 
 
 7. Where a trustee, indebted to the trust, becomes Art. 39. 
 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 trustee ni- 
 he may have obtained his certificate. For, as was observed dobted to 
 by Sir J. Eomilly, M.E. : " Suppose a person owing money ^™^^ should 
 to a trust estate becomes bankrupt, and the trustee is a 
 distinct and separate person knowing of the bankruptcy, 
 he is bound to prove the debt ; if he does not he commits 
 a breach of trust, and would be held liable for all that he 
 might have received under the commission if he had proved 
 the debt as he ought to have done. Is the case altered 
 because the trustee is himself the debtor ? I think not ; 
 the original debt, no doubt, is barred, but the amount of the 
 dividends which the trustee might have received under 
 the commission is a liability subsequently attaching to the 
 trustee in that character, and is not affected by the bank- 
 ruptcy or the certificate " (r). 
 
 8. So, again, where a settlor has, for valuable considera- Enforcing 
 tion, covenanted to settle property, a trustee who neglects covenant 
 to enforce the covenant is liable for any loss occasioned settlor. 
 thereby (s). In order to obviate this very unpleasant and 
 thankless duty, it is usual to insert a proviso in such settle- 
 ments excusing the trustees from liability for not enforcing 
 
 such covenants. 
 
 9. Or, again, if a trustee neglect to register the trust Neglect to 
 instrument (where it requires to be registered), and the ^^2|g|^g[! ^" 
 settlor is thereby enabled to effect a mortgage on the county, 
 property, the trustee will be liable (t). 
 
 10. In the exercise of due diligence, trustees for sale will, .Joining in 
 
 of course, use their best endeavours to sell to the best ^'^^"^ P^ 
 
 contiguous 
 
 properties. 
 
 (}•) Orrett v. Corser, 21 Beav. 52. 
 
 (s) Woodhouse v. Woodhouse, 8 Eq. 514; and i?e Brogden, Billing v. 
 Brogdeii, supra. Where a testator directed that a beneficiary was to 
 lose all interest in the estate if he did not, at the request of the trustee, 
 stay all proceedings which he might have instituted for disputing the 
 will, it was held that it was the trustee's dutj^ to make such request 
 (Be Allen, Havelock v. Havelock-Allcn, 12 T. L. R. 299). 
 
 (0 Macnamara v. Carey, 1 Ir. R. Eq. 9 ; and as to neglect to give 
 notice to an assurance company of an assignment to the trustees of a 
 policy, see Kingdon v. Castleman, 25 W. R. 345.
 
 194 THE ADMINISTEATION OF A TRUST. 
 
 Art. 39. advantage. They should, therefore (in general), abstain 
 from joining with the owners of contiguous property in a 
 sale of the whole together, unless, indeed, such a course 
 1 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 properties 
 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 manifest 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, 
 is obtained from surveyors and other persons who are 
 competent judges " (w). 
 
 11. "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 " (.r). And indeed this view 
 has now received the express sanction of the legislature [y). 
 
 Depreciatory 12. Again, trustees for sale ouglit not to do any act 
 eoriditions ot ^yhich wiU depreciate the property, and so they ought not 
 unnecessarily to limit the title. For no reasonable man 
 would unnecessarily depreciate his own property by such 
 means. The sul)jcct of depreciatory conditions was formerly 
 of great importance, because a purchaser might have 
 objected to complete, on the ground that such conditions 
 
 (/') /'(/• .Jksskl, M.ll., Jic Cooper oiid A/Zdi'n Contract, 4 Ch. 1>. 
 817. 
 
 {./■) Iln<l. (y) 'riuHlee Act, 189:i ("jG & 57 Vict. c. 53), h. 1:J.
 
 DUTY OF TRUSTEE TO EXERCISE REASONABLE CARE. 195 
 
 constituted a breach of trust for which he himself, taking Art. 39. 
 with notice, miglit be held responsible (z). However, since 
 1888, the state of the law with regard to such conditions has 
 been altered, and, now, no sale made by a trustee can be 
 impeached 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 & 38 Vict. 
 c. 78) (a). 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 be im- 
 peached," 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 the doubt if the case 
 should ever arise, and that henceforth the onus of proving 
 loss in such transactions will fall upon the beneficiaries. 
 
 13. Again, if trustees for sale, or those who act under improvident 
 their authority, fail in reasonable diligence in inviting ^''^^*^- 
 competition, or if they contract to sell under circumstances 
 of great improvidence or waste, they will be personally 
 responsible [b). 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 experi- 
 enced person to value it (c). Nor must they give a future 
 option to a person to purchase the estate {e.g., in a lease) ; 
 
 (2) Dmice V. Goklingham, 8 Ch. App. 902 ; Dmm v. Flood, 25 Cli. D. 
 629 ; and on appeal, 28 ih. 586. 
 
 (a) Trustee Act, 1893 (56 & 57 Vict. c. 53), ss. 14, 15. 
 
 (6) Ord V. Noel, 5 Madd. 440; and Anon., 6 Madd. II ; PecM v. 
 Fowler, 2 Anst. 550. 
 
 (c) Oliver v. Court, 8 Pr. 165 ; Campbell v. Walker, 5 Ves. 680 ; and 
 see jser Jessel, M.R., Re Cooper and Allen, 4 Ch. D. 816. 
 
 2
 
 196 
 
 THE ADinNISTEATION OF A TEUST. 
 
 Art. 39. 
 
 Impro\-ident 
 purchase. 
 
 Error of 
 judgment. 
 
 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(^. 
 
 a. The same principle holds good in the case of trustees 
 for pm-chase, who ought to clearly 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 boJid 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 boJid fixJe, values the 
 property at more than its true value, they will be Hable (e). 
 
 15. Trustees for pm'chase 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 pui'chase without getting 
 the legal estate {g). Moreover, they should never purchase 
 land merely as a speculation without having money in hand 
 to pay for it iji). 
 
 16. Even before the Judicial Trustees Act, 1896, gave the 
 court 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 reasonable discretion, and 
 acted with diligence and good faith. Thus, where an 
 executor omitted to sell some foreign bonds for a year after 
 the testator's death, although thei'e was a direction in the will 
 to convert with all reasonable speed, he was held irrespon- 
 sible for a loss caused by the bonds falling in price ; for 
 although the conclusion he came to was unfoi'tunate, yet, 
 having exei^cised a bond fide discretion, the mere fact of the 
 
 (rf) Clay V. Rnfford, 5 De G. & S. 768; and Oceanic, etc. Co. v. 
 Suthtrherry, 16 Ch. D. 237. 
 
 {t) lu'fle V Pfirtrid'jt, 34 Beav. 412; and see also Fry v. Tapson, 
 28 Ch. I'X 268 ; M'ariwj v. Waring, 3 Ir Ch. Rep. .331. 
 
 (/) A'nM Coast Rail. Co. v. Hnirl-ts, d H. L. C. 331. 
 
 {ij) Lew. 440. And as to advancing trust money on a covenant to 
 surrender copyholfls, see Wynft v. .'Sharraft, 3 Beav. 498 ; and as to 
 e<iuitablc mortgages generally, Xorrii< v. Wright, 14 Beav. 308 ; Lock- 
 hart V. Jieilly, 1 D. & J. 464 ; and iu/ra. Art. 40. 
 
 (h) Ecclesiastical Commin-fioiiera v. Finney, [1900] 2 Ch. 736.
 
 DUTY OF TRUSTEE TO EXERCISE REASONABLE CARE. 197 
 
 loss was not sufficient to charge him (i). As to what con- Art. 39. 
 stitutes a reasonable delay, depends on the particular cir- 
 cumstances affecting each case. Prima facie, a trustee 
 ought not to delay realisation beyond a year, even where he 
 has apparently unlimited discretion (k) ; and if he procras- 
 tinates beyond that period, the onus will be cast upon him 
 of proving that the delay was reasonable and proper (l). 
 
 17. A trustee will not be liable if the trust property be Theft of trust 
 stolen, provided he has taken reasonable care of it (vi), even P'^op^'^ty- 
 although the thief be his own servant, if, on the facts proved, 
 it appeared that the trustee was justified in deputing the 
 custody of the property to such servant {e.g., the manager 
 of a trust business (n)) ; 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 (o). It is 
 difficult to understand 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 ? It is, however, 
 submitted that 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 (jj). 
 
 (^) Buxton v. Buxton, supra; and see Paddon v. Biclmrdson, 
 7 D. M. & G. 563. 
 
 (k) Scnlthorpe v. Tipper, 13 Eq. 232 ; and as to the propriety of an 
 executor allowing the testator's money invested on mortgage to remain 
 so until wanted, see Orrv. Neivton, 2 Cox, 276 ; Robinson v. Robinson, 
 1 D. M. & G. 247. 
 
 (I) deeper Wood, L.J., in Grayhurn v. Clarhson, 3 Ch. App. 606, 
 and Hughes v. Empson, 22 Beav. 181. 
 
 (m) Jones v. Lewis, 2 Ves. 240 ; Job v. Job, 6 Ch. D. 563. 
 
 (?i) Jobson V. Palmer, [1893] 1 Ch. 71 ; and see also Weir v. Bell, 
 3 Ex. D. 238. 
 
 (o) See Art. 41, and illustrations thereto, infra. 
 
 (p) See Art. 76, infra.
 
 198 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 39. 18. Where a trustee of a policy of insurance neglected to 
 
 ^ endorse on it a memorandum of the trust, or to give notice 
 
 keeijfns trust ^° ^^^^ office, and subsequently carelessly allowed it to get 
 
 securities. into the settlor's hands, who mortgaged it to a third party, 
 
 the trustee was held liable (q). Where trustees hold 
 
 securities payable to bearer, the proper course is to deposit 
 
 them with their bankers (r), and not with their solicitor (s), 
 
 nor with one only of the trustees [t), unless for purposes of 
 
 sale in cases where he is a stockbroker {u). 
 
 Inventory of 
 chattels. 
 
 Neglect to 
 invest trust 
 fund. 
 
 Not bound 
 to insure. 
 
 19. 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 (x). 
 
 20. 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 (ij) ; and, if the fund be lost, 
 he will be liable to make it good (z). A fortiori will he be 
 liable where he has left the trust fund in the sole custody of 
 his co-trustee (a). And, on similar grounds, trustees ought 
 to accumulate infants' property by way of compound 
 interest {b). 
 
 21. A trustee is not bound to insure leasehold premises 
 against loss by fire (c) ; 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 property insured, and to pay the premiums out of 
 the income of that property or of any other property subject 
 
 (7) Kincfdon v. Caatleman, 25 W. R. 345 ; and see Barnes v. Addy, 
 Ch. Apyi, 244, and Ifohdai/ v. Peters, 28 Beav. 603. 
 
 {>•) Ji'< Jh J'othoiiin; JJeiit. v. Be Pothonitr, [1900] 2 Cli. 529. 
 
 («) /V../rZ V. Field, [1894] 1 Ch. 425. 
 
 (C) Candler v. Tillett, 22 Beav. 257. 
 
 (h) lie (iaxquoine, (inHquoine v. Ca-iqiioine, [1894] 1 Ch. 470. 
 
 {x) Temple v. Thrivq, 5(i L. .T. C. 7(J7. 
 
 (y) See Uilroy v. Sliphoi, SO \V. R. 755 ; Staffbrdv. Fiddon, 23 Beav. 
 3S(i ; and ./ours v. Srarle, 49 L. T. 91. In Cann v. Cann, 51 L. T. 770, 
 Kay, .7., cionsidured that six niontlis was the maximum period. 
 
 (r:) Mtjyie v. Mf,>/I>, 2 R. & M. 710. 
 
 {a) LiwiH v. A'oWm, 8 Cli. 1). 591. 
 
 (/() (Conveyancing and Law of Property Act, 1881 (44 & 45 Vict, 
 c. 41), H. 43. 
 
 (r) Bailey v. Gould, 4 Y. & C. Ex. 221 ; and JJobson v. Land, 8 Ha. 216.
 
 DUTY OP TRUSTEE TO EXERCISE REASONABLE CARE. 199 
 
 to the same tinists. The section does not, however, apply Art. 39. 
 to property held on simple trust for beneficiaries absolutely, 
 and is, of course, subject to the express directions (if any) 
 of the settlement. 
 
 22. Trustees are generally bound to see that trust pre- How far 
 
 mises do not fall into decay (d). But, as we have seen, the ""^^^nd to see 
 
 „ . . , T • 1 • / \ T ^" repairs, 
 
 cost or repan's is not thrown exclusively on income (c), and 
 
 trustees should apply to the Court for directions as to 
 raising the necessary money (cl). It has, however, been de- 
 cided that when leasehold 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 (/). But this is without prejudice to the ultimate 
 incidence of the costs (g). 
 
 23. Trustees being liable for gross negligence, &Ye, Mala fides, 
 d fortiori, liable where they combine reckless disregard of 
 
 the interests of their cestuis que trusts with mala fides. 
 Thus, where one trustee retires from the trust in order, 
 as he thinks, to relieve himself from the responsibility of a 
 wrongful act meditated by his co-trustee, he will be held as 
 fully responsible as if he had been particeps criminis (h). 
 But to make him responsible it must be proved that the 
 very breach of trust which was in fact committed was not 
 merely the outcome of, or rendered easy by the retirement, 
 but was contemplated by the trustee who retired (/). 
 
 {d) Per Cotton, L.J., Be Hotchhys, Freke v. Calmady, 32 Ch. D. 
 408. 
 
 (e) Art. 38, supra. 
 
 {/) Re Fowhr, Fowler v. Oclell, 16 Cli. D. 723. But see Be Courtier, 
 Coles V. Courtier, 34 Ch. D. 136, and also Art. 64, infra. 
 
 (g) Be Courtier, Coles v. Courtier, supra, and Be Hotchlcys, Freke v. 
 Calmady, supra ; and see p. 185, supra. 
 
 {h) Norton v. Pritchard, Reg. Lib. B. (1844), 771 ; Le Hunt v. 
 Webster, 9 W. R. 918 ; Palairtt v. Carew, 32 Beav. 567 ; Clark v. 
 Hoskins, 32 L. J. Ch. 561. 
 
 (i) Head v. Goidd, [1898] 2 Ch. 250.
 
 200 THE ADMINISTRATION OF A TRUST. 
 
 Art. 40. 
 
 Art. 40. — Duty of Trustee in relation to the 
 Investment of Trust Funds. 
 
 (1) A trustee can only lawfully invest trust 
 funds upon securities authorised by the settle- 
 ment or by statute (k) ; and not upon the latter 
 if the settlement forbids such investment (/). 
 
 (2) Even with regard to securities so autho- 
 rised, a trustee is not free from liability, if, 
 having regard to all the circumstances, and to 
 the rules laid down in Ai'ts. 35 and 39, it be im- 
 proper or imprudent to make such investment (7«). 
 But the mere fact that stock is above par does 
 not necessarily make it improper to purchase it {ii). 
 
 (3) In particular, in investing on mortgage, he 
 should (unless expressly authorised by the settle- 
 ment) accept only a first legal mortgage (o) of 
 freehold or copyhold property, which is not of a 
 wasting character {p) ; should never join in a 
 contributory mortgage {cf) ; and should always 
 obtain a report as to the value of the property 
 made by, and act upon the advice as to its pro- 
 priety as a trust investment of a person whom 
 he reasonably believes to be an able practical 
 surveyor or valuer, instructed and employed in- 
 dependently of the owner of the property ; and 
 
 (k) As to what securities are authorised by statute, see infra, p. 202 
 et Heq. 
 
 (I) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 1. 
 
 (to) See ver Cotton and Lopes, L.JJ., in lie WhUdey, Whiteky v. 
 Ltaroyd, .33 Ch. D. 347; art". 12 App. Cas 727, a.nd Hut /on. v. Annans 
 [1898] A. C. 289. 
 
 (,i) S.-o Trustee Act, 1893, s. 2, infra, p. 204. 
 
 (o) Norris V. Wrlijlit, 14 Jieav. 308 ; Lochhart v. Reilly, 1 De G. & J. 
 47<i ; and Smqli.ld v. Nchon, W. N. (187(i), at p. 255. 
 
 (]t) lii Whililc.i/, Whitilcy V. L('.arni/(l, .sii/ira ; Smethur»t v. Hastings, 
 30 Ch. D. 490. 'Ah to coi)yholds, Wynit v. Shnrraff, 3 Beav. 498; Be 
 Titrner, Barker \. Irim>y, flH971 1 Cli. 53(). 
 
 (7) Wchh V. Jonas, 'AU Cli. D. (idO ; /.V Mussiuqliiril, Clark v. Tre- 
 lavnry, G3 L. T. 290.
 
 DUTY OF TRUSTEE IN RELATION TO INVESTMENTS. 201 
 
 should never advance more than two-thirds of Art. 40. 
 the value stated in such report (7'). 
 
 (4) A trustee (unless authorised by the settle- 
 ment (.s)), must not apply for, or hold any cer- 
 tificate to bearer issued under the authority 
 of— 
 
 (a) the Indian Stock Certificate Act, 1863 ; 
 
 (b) the National Debt Act, 1870 ; 
 
 (c) the Local Loans Act, 1875 ; or 
 
 (d) the Colonial Stock Act, 1877 (t). 
 
 (5) Where there is power to invest, such power 
 carries with it the power to vary investments 
 from time to time («). 
 
 (6) Where part of a testator's residuary trust 
 estate consists of securities on which the trustees 
 are permitted to invest, they are not bound to 
 convert and then to procure others of the same 
 nature, unless, having regard to all the sur- 
 rounding circumstances, it would be imprudent 
 to retain them (r). 
 
 Illustrations of Paeageaph (1). 
 
 1. The powers of trustees as to investment have been Investments 
 from time to time extended by statutes which are now con- j^" statute. 
 
 (r) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 8. 
 
 (s) See Be Both, Goldherger v. Both, 74 L. T. 50. 
 
 {t) Ti'ustee ^ct, 1893, s. 7. Nothing in this section, however, is to 
 impose on the Bank of England or of Ireland, or on any person 
 authorised to issue any such certificate, any obligation to inquire 
 whether a person applying for such certificate is or is not a trustee, or 
 to subject them to any liability in the event of their granting such 
 certificate to a trustee, or to invalidate any such certificate if granted. 
 
 (u) Be Clenjy Orphan Corporation, 18 Eq. 280; and see also Be Dick, 
 Lopes \. Hume-Dick, [1891] 1 Ch. 423 ; aff., [1892] A. C. 112. 
 
 {x) See Ames v. Parkinson, 7 Beav. 379, apparently not even a 
 second mortgage, Bobinson v. Bohinwn, 1 D. M. & G. 252 ; and see 
 also Be Chapman, Cocks v. Chapman, [1896] 2 Ch. 763.
 
 :202 THE ADMINISTRATION OF A TRUST. 
 
 Art. 40. solidated in ss. 1—6 of the Trustee Act, 1893 (56 & 57 Vict. 
 c. 53), as amended by s. 2 of the Colonial Stock Act, 1900 
 (63 & 64 Vict. c. 62), by the latter of which it is enacted that 
 the securities in which a trustee may invest under the powers 
 of the Trustee Act, 1893, shall include any colonial stock 
 registered in the United Kingdom in accordance with the 
 provisions of the Colonial Stock Acts, 1877 to 1900, and with 
 respect to which there have been observed such conditions 
 as the Treasury may by order prescribe. The restrictions 
 in s. 2 (2) of the Trustee Act, 1893, are to apply to such 
 colonial stocks. 
 
 The sections of the Trustee Act, 1893, above referred 
 to, are as follows : 
 
 1. A trustee may, unless expressly forbidden by the instrument 
 (if any) creating the trust, invest any trust funds in his hands, 
 whether at the time in a state of investment or not, in mannei' 
 following, that is to say : 
 
 (a.) In any of the parliamentary stocks or public funds or govern- 
 ment securities of the United Kingdom : 
 
 (b.) On real or heritable securities in Great Britain or Ire- 
 land(y): 
 
 (c.) In the stock of the Bank of England or the Bank of Ireland : 
 
 (d.) In India three and a half per cent, stock and India three per 
 cent, stock, or in any other capital stock which may at any 
 time liereaiter be issued by the Secretary of State in Council 
 of India inider the authority of Act of Parliament, and 
 cliarged on tlie revenues of India : 
 
 (e.) In any securities the interest of which is for the time being 
 guaranteed by Parliament (s) : 
 
 (f.) In consolidated stock created by the Metropolitan Board of 
 Works, or by the London County Council, or in debenture 
 stock created by the receiver for the Metropolitan Police 
 District : 
 
 (g.) In the debenture or rentcharge, or guaranteed or preference 
 stock of any railway company in Great Britain or Ireland 
 incorporated by special Act of Parliament, and having 
 
 (?/) ThiH would seem to include a morlr/arje of ground rents but not a 
 pnrrhanp. of them {lie, Pujlriv, 7 K<|. 4().S). 
 
 (;:) This includes Caiiadi.ui I p'T ci'mI. stouk (Pacilic Railway), 36 & 
 ,37 Vict. c. 45.
 
 DUTY OF TRUSTEE IN RELATION TO INVESTMENTS. '203 
 
 during each of the ten years last past before the date of Art. 40. 
 investment paid a dividend at the rate of not less than three 
 per centum j)er annum on its ordinary stock (a) : 
 
 (h.) In the stock of any railway or canal company in Great 
 Britain or Ireland whose undertaking is leased in perpetuity 
 or for a term of not less than tvi^o hundred years at a fixed 
 rental to any such railway company as is mentioned in sub- 
 section (g), either alone or jointly with any other railway 
 company : 
 
 (i.) In the debenture stock of any railway company in India the 
 interest on which is paid or guaranteed liy the Secretary of 
 State in Council of India : 
 
 ().) In the " B " annuities of the Eastern Bengal, the East Indian, 
 and the Scinde Punjaub and Delhi Raihvays, and any like 
 annuities which may at any time hereafter be ci'eated on 
 the purchase of any other railway by the Secretary of State 
 in Council of India, and charged on the revenues of India, 
 and which may be authorised by Act of Parliament to be 
 accepted by trustees in lieu of any stock held by them in 
 the pui'chased railway ; also in deferred annuities com- 
 prised in the register of holders of annuity Class D. and 
 annuities comprised in the register of annuitants Class C. 
 of the East Indian Railway Company : 
 
 (k.) In the stock of any railway company in India upon which a 
 fixed or minimum dividend in sterling is paid or guaranteed 
 by the Secretary of State in Council of India, or upon the 
 capital of which the interest is so guaranteed : 
 
 (1.) In the debenture or guaranteed or preference stock of any 
 company in Great Britain or Ireland, established for the 
 supply of water for profit, and incorporated by special Act 
 of Parliament or by Royal Charter, and having during each 
 of the ten years last past before the date of investment paid 
 a dividend of not less than five pounds per centum on its 
 ordinary stock : 
 
 (m.) In nominal or inscribed stock issued, or to be issued, by the 
 corporation of any municijial borough having, according to 
 the returns of the last census prior to the date of investment, 
 a population exceeding fifty thousand, or by any county 
 council, imder the authority of 'Any Act of Parliament or 
 provisional order : 
 
 (n.) In nominal or inscribed stock issued or to be issued by any 
 commissioners incorporated by Act of Parliament for the 
 
 (a) See note [h), p. 204.
 
 204 THE ADMINISTKATION OF A TRUST. 
 
 Art. 40. purpose of supplying Avater, and having a compulsory 
 
 power of leAying rates over an area having, according to 
 the returns of the last census prior to the date of investment, 
 a population exceeding fifty thousand, provided that during 
 each of the ten years last past before the date of invest- 
 ment the rates levied by such commissioners shall not have 
 exceeded eighty per centum of the amount authorised by 
 law to be levied : 
 
 (o.) In any of the stocks, funds, or securities for the time being 
 authorised for the investment of cash under the control or 
 subject to the order of the High Court (6), 
 
 and may also from time to time vary any siich investment (c). 
 
 2. — (].) A trustee may under the j^owers of this Act invest in any 
 of the securities mentioned or referred to in section one of this Act,, 
 notwithstanding that the same may be redeemable, and that the 
 price exceeds the redemption value. 
 
 (2.) Pro^dded that a trustee may not under the powers of this Act 
 purchase at a price exceeding its redemption value any stock 
 mentioned or referred to in sub-sections (g), (i), (k), (1), and (m) of 
 section one, which is liable to be redeemed within fifteen years of 
 the date of purchase at par or at some other fixed rate, or purchase 
 any such stock as is mentioned or referred to in the sub-sections 
 aforesaid, which is liable to be redeemed at par or at some other 
 
 {h) These at present (see R. S. C. Ord. XXII. r. 17) are rather more 
 restricted than the statutory investments, except as to that specified 
 in sub-s. (g) of the Act, with regard to which all that the coiirt requires 
 is that the railway conipanj' has paid a dindend (not necessarily of 
 3 per cent. ) *in ordinary capital for ten years next before the date of 
 investment. The "City Editor" of "The Times," some years since, 
 stated that "lawyers differ " as to the effect of this, some contending 
 that, witii regard to investments open to trustees, the rule of court is 
 governed and restricted by the Act. It is, however, conceived that 
 this is an absurd contention. The Act enumerates a series of invest- 
 ments that are to lie permanently permissible, and then, by way of 
 further extension, and certainly not by way of restriction, says that 
 also all stocks, etc. shall be perniissililc on which the court may for the 
 time hciiig authorise its funds to he invested. At present the court 
 jjermits its fiuulH to lie investeil on thi; debenture stocks of railway 
 f:onipanies whieli have paid diiy dividend for ten years past ; and there- 
 fore it follows, that, at jirexenf, trustees may follow suit. It is difiicult 
 to understand how any lawyer could bo of a contrary opinion, which 
 woidd render suh-s. (o) absolutely meaningless. 
 
 ((■) 'I'liJH ai)|)lieH even where the settlement contains no power to 
 vary (/.V />ir/.; Lo/xs v. Hmnr-Dick, \ KS!)1 ] 1 Ch. 42:? ; aff., [1892] A. C. 
 1 12 ; and sco lie. Oirthinti/i', Oirllnmitc v. Taylor, | ISi)l |:U'li. 4!)4). The 
 court will not, as a rule, interfere witii the distreLion of trustees as 
 to varying investmcntH (Lee v. Youv<j, 2 Y. & C. C. 532).
 
 DUTY OF TRUSTEE IN EELATION TO INVESTMENTS. 205 
 
 fixed rate, at a price exceeding fifteen per centum above par or sucli Art. 40. 
 other fixed rate (d). 
 
 (3.) A trustee may retain until redemption any redeemable stock, 
 fund, or security which may have been purchased in accordance 
 with the powers of this Act. 
 
 3. Every power conferred by the preceding sections shall be 
 exercised according to the discretion of the trustee, but subject to 
 any consent required by the instrument, if any, creating the trust 
 with respect to the investment of the trust funds. 
 
 4. The preceding sections shall apply as well to trusts created 
 liefore as to trusts created after the passing of this Act, and the 
 powers thereby conferred shall b„ in addition to the powers conferred 
 by the instrument, if any, creating the trust. 
 
 5. — (1.) A trustee having power to invest in real securities, unless 
 expressly forbidden by the instrument creating the trust, may invest 
 and shall be deemed to have always had power to invest — 
 
 (a) on mortgage of property held for an unexpired term of not 
 
 less than two hundred years, and not subject to a reserva- 
 tion of rent greater than a shilling a year, or to any right 
 of redemption or to any condition for re-entry, except for 
 non-payment of rent ; and 
 
 (b) on any charge, or upon mortgage of any charge, made under 
 
 the Improvement of Land Act, 1864. 
 
 (2.) A trustee having power to invest in the mortgages or bonds 
 of any railway company or of any other description of company may, 
 unless the contrary is expressed in the instrument authorising the 
 investment, invest in the debenture stock of a railway company or 
 such other company as aforesaid. 
 
 (3.) A trustee having power to invest money in the debentures or 
 debenture stock of any railway or other company may, unless the 
 contrary is expressed in the instrument authorising the investment, 
 invest in any nominal debentures or nominal debenture stock issued 
 under the Local Loans Act, 1875. 
 
 (4.) A trustee having power to invest money in securities in the 
 Isle of Man, or in securities of the government of a colony, may, 
 unless the contrary is expressed in the instrument authorising the 
 investment, invest in any securities of the Government of the Isle 
 of Man, under the Isle of Man Loans Act, 1880. 
 
 (d) This, of course, overrides the more stringent restrictions imposed 
 on trustees by the local Acts under which these stocks were formerly 
 made conditional trustee investments.
 
 206 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 40. (5.) A trustee haA-ing a general power to invest trust moneys in 
 
 or upon tLe security of shares, stock, mortgages, bonds, or debentures 
 
 of companies incorporated by or acting under the authority of an 
 Act of Parliament, may invest in, or iipon the security of, mortgage 
 debentures duly issued under and in accordance with the provisions 
 of the Mortgage Debenture Act, 1865. 
 
 6. A trustee having power to invest in the purchase of land or on 
 mortgage of land may invest in the purchase, or on mortgage of any 
 land, notwithstanding the same is charged with a rent under the 
 powers of the Public Money Drainage Acts, 1846 to 1856, or the 
 Landed Property Improvement (Ireland) Act, 1847, or by an 
 absolute order made under the Improvement of Land Act, 1864, 
 unless the terms of the trust expressly provide that the land to be 
 purchased or taken in mortgage shall not be subject to any such- 
 prior charge. 
 
 2. The foregoing securities refer to ordinary trusts (e) ; 
 but where the trust fund consists of capital money arising 
 under the Settled Land Acts, 1882 to 1890, or is money 
 which is liable to be laid out, under the trusts of a settle- 
 ment, in the purchase of land (/), the trustees must invest 
 it, according to the direction of the tenant for life, in some of 
 the modes specified in s. 21 of the Settled Land Act, 1882, 
 or at tJie oiHion of the tenant for life, on the securities in 
 which money produced by the exercise of a power of sale 
 in the settlement might be invested thereunder (gr). 
 
 Investments 3. Although the range of trust investments has, as above 
 
 authorised by stated, been greatly increased, the court still scrutinises- 
 
 ment itself, with considerable jealousy, any direction to invest in 
 
 securities not authorised by parliament ; and the following 
 
 examples (which of course turn on the construction of 
 
 particular settlements) will show how careful a trustee 
 
 Investments 
 by Settled 
 Land Act. 
 
 Trustees. 
 
 (<■) Tlio Act does not apply to trust funds of a building society {Re 
 Nuliov(d J'trmaiKiif, Bnildhtij Society, 4.H Ch. D. 4;{1) ; hut it does to 
 trust ftinds Jield by a corporation in trust for a churity {JIanchetiter 
 Royal. IvHrmary v. Atl.-G'tv., 4.S Ch. D. 420). 
 
 (/) Settled Land Act, 1882(45 & 46 Vict, c, 38), s. 33; and Re 
 Macktiizii'H Triints, *23 Ch. D. 750. 
 
 (>l) Settled Land Act, 1882, ss. 22, 33. It is apprehended that, 
 notwithstanding the word "thcrcimder," trustees, for purposes of 
 the Settled Lund Act, \\<iul(l now Ik; authorised to invest in any 
 of the Hccurilios permitted hy the Trustee Act, 1893 (56 & 57 Vict. 
 e. 53).
 
 DUTY OF TRUSTEE IN RELATION TO INVESTMENTS. 207 
 
 ought to be, before assuming that the language of bis settle- Art. 40. 
 ment really authorises investments which it appears at first 
 sight, and to the average uncritical reader, to do. Thus, 
 vfhere a settlor empowers his trustees to place out the trust 
 fund at interest "at their discretion," it seems to be the 
 better opinion, that the discretion of the trustees is limited 
 to a discretion as to which of the several forms of security 
 authorised by laiu they shall invest in, and does not give 
 them power to invest in securities not so authorised ; such, 
 for instance, as ordinary railway stock {li). And indeed the 
 word "invest" seems to point to a loan and not to an 
 employment in a trading speculation, as also does a direction 
 to place out at interest (i) or on security (k). 
 
 4. So, again, where trustees are authorised to retain a Where 
 settlor's shares in a particular company, they must not authorised 
 accept new shares on reconstruction of the company (l), shares* must 
 nor, d fortiori, ought thev to increase their holding in the not increase 
 company. They may, however, accept an allotment of ^^"^ ^° "^' 
 bonus shares, but must promptly sell them (m). 
 
 5. On similar grounds, where trustees are authorised to Where 
 invest money by placing the same in the hands of a specified authorised 
 firm at interest, it is a breach of trust to continue the loan h°m"*^ 
 after a change has taken place in the constitution of the 
 firm (71). 
 
 6. On the other hand, in Cadett v. Eai'l (0), it was held Government- 
 that a direction to invest in foreign government securities *'^^J^"t|^'? 
 authorised an investment in the securities of individual companies. 
 States of the United States of America, although they are 
 
 (h) Bethell v. Ahraham, 17 Eq. 24, ^er Jessel, M.R. ; and see Re 
 Broivn, Brown v. Brown, 29 Cli. D. 889, where this principle seems to 
 have been admitted, although under the circumstances the court would 
 not say that the trustees were liable. 
 
 (i) Bethell v. Abraham, supra ; and see Cock v. Goodfellow, 10 Mod. 
 489 ; Dickenson v. Player, C. P., Cooper's Cases, 1837, 1838, p. 178. 
 
 (k) Harris v. Harris, 29 Beav. 107 ; Murphi/ v. Boi/le, 29 L. R. Ir. 
 333 ; Be Kavanagh, 27 ib. 495. 
 
 (I) Buchiill V. Morris, 52 L. T. 462 ; and see also Blount v. O'Connor, 
 17 L. R. Ir. 620. 
 
 (m) Be Pugh, W. N. 1887, p. 143. 
 
 (n) Be Tucker, Tucker v. Tucker, [1894] 1 Ch. 724. 
 
 (o) 5 Ch. D. 710 ; and see also Arnould v. Grinstead, 21 W. R. 155.
 
 ^08 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art, 40. 
 
 Should 
 
 never, unless 
 
 explicitly 
 
 authorised, 
 
 invest on 
 
 personal 
 
 security. 
 
 not independent nations. And in recent cases it was held 
 that a power to invest in the securities of any " public 
 company " extended to the securities of companies incorpo- 
 rated under the Companies Acts, and was not restricted to 
 companies incorporated by statute or royal charter ( j;) ; and 
 that a company incorporated by charter under the pro- 
 visions of a general Act of Parliament was a " company 
 incorporated by statute " (q). But an ordinary joint stock 
 company is not " created by statute " (r), nor are unincor- 
 porated Dock Commissioners a "public company or body 
 corporate " (s). 
 
 7. It need scarcely be pointed out that, in the absence of 
 clear, express, and imperative direction, trustees (even 
 where they have a discretion) cannot, without breach of 
 trust, lend trust fund on the security of a personal promise, 
 or of personal property, however apparently trustworthy [t) ; 
 and, as Lord Kenyon said in Holmes v. Dring, this "ought 
 to be rung into the ears of every one who acts in the 
 character of trustee " (w). It is true that in one case, 
 Bacon, V.-C, held, that where trustees were authorised to 
 invest on real or personal security, they might permit money 
 to remain merely on the security of a personal promise or 
 bond (x) ; 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 
 justified (y). However, it has been held by Kekewich, J., 
 that even where the direction is not impex'ative, trustees 
 
 (y>) h'c Sharp, Hiclrtt v. Hhar}), 4,') Cli. 1). '286. 
 
 (7) Eli-c, V. lioyton, [1S!)1] 1 (,'h. m\. 
 
 (r) n, Smith, '/)(iri(/sou V. Myrtle, [1896] 2 Cli. rm. 
 
 (x) Wnoil V. Middh Ion, 7() Ij. 'I'. 155; as to tlie securities issued hy 
 Scottisii AJunicipal CDijJorations, sec llntton. v. Ainiaii, [1898] A. C. 
 289. 
 
 {/) Stylp.H V. (,'i/e, 1 M. & (J. 42.3 ; Child v. Child, 20 Beav. .W ; Mills v, 
 Onhvrm, 7 Sim. 30. 
 
 (v/) 2 Cox, 1 ; Pororkw /1( (Idliii/tmi, r, Vvs. 794; /'ofts v. liritton, 
 11 K(i. 4:W ; Ikthtll V. Ahrah'nii, 17 K<|. 24; l!i/dvr v. JJIrkcrvioii, 
 li S\v. 80, II. (a). 
 
 {x) See I'ickard v. Avdcrson, l.'i iv(. 608, .H<d qinvrt. 
 
 [y) See lie Johnnov, W. N. (1886), j). 72.
 
 DUTY OF TRUSTEE IN RELATION TO INVESTMENTS. 201) 
 
 may lend on personal security, if satisfied that there is a Art. 40. 
 reasonable prospect of repayment, and may lend to the 
 tenant for life, although his consent to the loan is 
 required (z). 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 bond fide for the benefit of their beneficiaries, they will 
 be liable for any loss, notwithstanding the authorisation (a) ; 
 and d fortiori is that so where they lend in consideration of 
 a bribe [h). But if the trustees are not merely authorised, 
 but are imperatively directed to invest on certain forms of 
 investment, they are bound to obey the direction, however 
 much they may disapprove (c). And also where they are 
 expressly authorised to allow money to remain on an 
 unsatisfactory security for the purpose of conveniencing a 
 purchaser, they are justified in doing so {d). 
 
 8. Again, a trustee must not, in the absence of express Should not 
 
 authority, invest on trade security ; as, for instance, in the "i"^'^st in 
 
 1 p , ,. 1 • 1 • 1- . trade, or 
 
 snares oi a public company, which are in reality no security shares of 
 
 at all, but merely documents conferring a right to specu- trading 
 
 lative profits (e). It was on this ground that, before the ^■°"^P''^^^^*^^- 
 
 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 (/). 
 
 Illustrations of Paeagkaph (2). 
 
 1. It is a mistake to suppose that a trustee is free from Trustees not 
 
 responsibility if he invests trust funds in some of the securities iiecessanly 
 
 , . T , , . protected by 
 
 authorised by the settlement or by statute. To invest in investing in 
 
 any other securities would, of itself, be a breach of trust ; authorised 
 but, even with regard to those which are permissible, he 
 
 (z) Be Laing, Laing v. Raddife, [1899] 1 Ch. 593, sed quare. 
 (a) Langston v. Ollivant, G. Coop. 33 ; and see Stewart v. Sanderson, 
 10 Eq. 26 ; and Francis v. Francis, 5 D. M. & G. 108. 
 (h) Be Smith, Smith v. Thompson, [1896] 1 Ch. 71. 
 
 (c) Cadogan v. Essex (Lo)xl}, 2 Drew. 227 ; Beauclerk v. Ashburnham, 
 8 Beav. 322. And see now Be Wtdderhurn, 9 Ch. D. 112. 
 
 (d) Be Hurst, Addison v. Topp, 63 L. T. 665. 
 
 (e) Harris v. Harris, 29 Beav. 107 ; Cock v. Goodftllow, 10 Mod. 489. 
 (/) Howe V. Lord Dartmouth, 1 Wh. & Tu. 68.
 
 210 THE ADMINISTRATION OF A TEUST. 
 
 Art. 40. must take such 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. 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 ; but 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 (g). 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 {h) ; and in either 
 case, the trustee is not allowed the same discretion in 
 investing the trust fund as if he were a person, sui juris, 
 dealing with his own estate. 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 investments of that class which are 
 attended with hazard (i). 
 
 Illustrations 2. Thus, if any of the securities mentioned in the 
 
 of permissible Tj,^stge .^^^ 1893 (56 & 57 Vict. c. 53), were to be- 
 
 which might conie very much depreciated, so as to render them a 
 
 l)u improper hazardous investment, the fact that they are made per- 
 
 circum- missible as trust investments by that statute would not, 
 
 stances. 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 pui-pose of 
 
 procuring a larger income for the tenant for life. At the 
 
 {[)) Per Cotton, L.J., lie WhitcJiy, Whitthy v. Ltaroyd, 33 Ch. D., 
 at p. 3.50. 
 
 (A) Ptr Lord Halsbury, same case when before H. L. ; sec 12 App. 
 Cas.. at p. 732. 
 
 (») I'tr Lord Watsok, same case, 12 App. Cas., at p. 733.
 
 DUTY OF TRUSTEE IN RELATION TO INVESTMENTS. 211 
 
 same time it must be acknowledged that, save with regard Art. 40. 
 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. Formerly 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 invest- 
 ment for trust funds ; because the effect of such an invest- 
 ment might be to benefit the tenant for life at the expense 
 of those in remainder (k). However, the intention of Parlia- 
 ment, as expressed in the Act of 1893, appears to be to fix 
 a standard of prudence for such cases, viz., that a trustee 
 should not pay more than a premium of 15 per cent, above 
 the redemption price, and that the period of redemption 
 should be at least fifteen years distant at the date of invest- 
 ment. 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 applied the rule to the other permissible 
 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 im- 
 portant that the parent should have an increased income 
 for their better support and education (l). In such a case, 
 an investment 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 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 liable for changing a first class security for 
 one which is authorised by the Act, and which pays a better 
 interest {m). 
 
 (k) See Coclchurn v. Peile, 3 D. F. & J. 170 ; Unghss v. Tuff, 9 W. R. 
 727 ; Waite v. Littlewood, 41 L. J. Ch. 636. 
 
 {I) Cockhurn v. Peile, mpra, per Turner, L.J. ; and see Monfejiore v. 
 GuedaUa, W. N. (1868), p. 67; Re Ingram, 11 W. R. 980. 
 
 (??0 See per Turner, L.J., in Cockhurn v. Peile, supra ; and per 
 Kekewich, J., in Re Walker, Walker v. Walker, 62 L. T. 449. 
 
 p2
 
 '•^12 THE ADMINISTRATION OF A TRUST. 
 
 Art. 40. 3. Nevertheless, trustees should not invest on mortgage 
 
 tvliere it is not reasonable, merely to accommodate one of 
 
 histified'm^ their beneficiaries. Still less ought they to do so merely to 
 
 investing on accommodate an outsider. Thus they would never be 
 
 mortgage. justified in lending a sum of stock (and, a fortiori, they 
 
 would not be justified in selling it and lending the proceeds) 
 
 on mortgage 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' 
 
 accommodate the mortgagor [n). 
 
 Illustrations op Paeageaph (3). 
 
 Precautions 1. As above stated, trustees are not freed from i-esponsi- 
 
 W trastees^ bility because they invest on authorised securities ; but 
 
 who invest on more especially is this the case when they lend trust funds 
 
 mortgage. qjj j^j^q security of a mortgage. The very simplicity of the 
 
 authority, empowering them to invest on " real securities," 
 
 i-8 apt to mislead, and gives no indication of the severity 
 
 with which the court regards such loans by trustees. In 
 
 the first place, in the absence of express authority, trustees- 
 
 who desire to invest on mortgage, are restricted to first 
 
 First legal legal mortgages of land. The mortgage should be a first 
 
 alone^per- mortgage (o), because otherwise trustees might not have 
 
 niissible. funds available to redeem a prior incumbrancer who might 
 
 threaten to foreclose. It should be a legal mortgage [jf), 
 
 because the protection afforded by the legal estate prevents 
 
 any prior incuuibrancer, of whom the trustees may have no 
 
 notice, getting priority over them ; and if trustees do invest 
 
 ill a mere equitable mortgage (for instance, a mortgage by 
 
 way of covenant to surrender copyholds [q) ), and any loss 
 
 ()/) Whitney v. Smitii, 4 Cli. App. .121 ; and sec also Re Walker, 
 Wu/hr V. Walktr, 02 L. T. 44!>, wlicrc trustees were held liable for 
 varying investments without any rcasonahle cause. 
 
 (o) Xon-i-t V. Wrii/h/, 14 IJeav. IMtH ; and Lorkhart v. Rcilly, 1 De G. 
 & J. 470 ; and see also WoiiiKiii. v. Wormdii, 4',i Ch. 1). 290, where it> 
 was held that trustees with j)()wer to pnrcha-se real estate, nnist not 
 pnr<:hase an ecpiity of redemption. ]int mm contra, per WliUiUT, J., 
 IVaid V. Cum I II till, !) 'I'. L. ii. 2.14. 
 
 (])) Swaj/ir/il v. Xcl.iO)i, VV. N. (187(5), p. 2.15. (7) Lew. ;}28.
 
 DUTY OF TRUSTEE IN RELATION TO INVESTMENTS. 213 
 
 accrues, they will, it is apprehended (although this has Art. 40. 
 never been expressly decided), be liable to make it good (r). ' 
 It would seem, however, that there is no objection to the 
 security being a sub-mortgage, as the trustees get the legal 
 •estate and in elfect the additional security of the covenant 
 of the original mortgagor [s). Unless the settlement 
 •expressly authorised a mortgage of leaseholds, trustees 
 could formerly only properly advance trust funds on the 
 security of freeholds or copyholds ; because 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 
 o'eal estate (t). However, as above stated (u), s. 5 of the 
 Trustee Act, 1893 (56 & 57 Vict. c. 53), authorises investment 
 •on mortgage of certain long leaseholds held at nominal rents. 
 
 2. In the second place, the mortgage must not be a contri- Must not 
 butory mortgage, that is, a mortgage where the trustees join contributorv 
 with other persons in a joint loan ; for, in that case, the mortgage, 
 trustees would be putting it out of their power to realize 
 without the joinder of third parties. In other words, they 
 
 would be intrusting the trust property to persons who were 
 not trustees of it, A contributory mortgage is therefore 
 j^rimd facie a breach of trust [x). 
 
 3. In the third place, they must take precautions not to Precautions 
 advance too much money on the security offered. The necessary as 
 law on this point was altered in favour of trustees by to ascer- 
 
 •s. 4 of the Trustee Act, 1888 (51 & 52 Vict. c. 59) (now ^ piopertj^ 
 repealed, and re-enacted in s. 8 of the Trustee Act, 1893). 
 Previously to December 24th, 1888, the duty of a trustee 
 who was proposing 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 
 
 (r) See Norris v. Wright, supra; Dro.tier v. Brereton, 15 Beav. 221 ; 
 Lockhart v. Reilly, supra ; Swaffield v. Nelson, supra. 
 
 [s) Smethurst v. Hastings, 30 'Ch. D. 490. 
 
 (0 Leigh v. Leigh, 35 W. R. 121 ; Be Boyd, 14 Ch. D. 626 ; but see 
 3,s to long terms at peppercorn rents. Be Chennell, Jones v. Chennell, 
 .8 Ch. D. 492. 
 
 (u) Supra, p. 205. 
 
 (x) Webb V. Jonas, 31 Ch. D. 660; Be ITassingbird, Clark v. Tre- 
 awney, 63 L. T. 290 ; S:okes v. Prance, [1898] 1 Ch. 212.
 
 lU 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 40. employ a valuer and solicitor {y) of his own, and not 
 trust to the valuer of the mortgagor {z) ; 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 (a). For a man may 
 bond fide form his opinion, and yet look at the case in a 
 totally different way when he knows on whose behalf 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 (&). In the next place, he was 
 not entitled to advance more than two-thirds of the amount 
 at which the property was valued (c) (and that is still the 
 same) ; and if it was house property not more than one- 
 half {d) ; 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 (e) ; 
 and if he did invest on the security of real property used foi" 
 trade purposes, he was bound to altogether disregard the 
 value of the trade (/). 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 
 deterioi'ation (g). 
 
 Precautions i. By s. 8 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), 
 
 as to value ^yhich applies to all mortgages made since December 24th, 
 
 Erescribed ^'- i 
 y Trustee 1888, the duty of a trustee under such cu-cumstances is con- 
 Act, 189.3. siderably lightened. By that section it is enacted that — 
 
 (y) Warimj v. Warinf/, 3 Ir. Ch. Rep. .331. 
 
 {z) Fry V. Tapmn, 28 Ch. U. 268 ; Walcott v. Lyons, 54 L. T. 786 ;. 
 WariiKj V. IVariiitj, 3 Ir. Ch. Rep. 331 ; Iiiyle v. Partridge, 34 Beav. 412. 
 
 (a) See per Kay, J., Re. Olive, Olive v. Westerman, 34 Ch. D. 70. 
 
 (h) Fry V. Topxon, nupra : and see on all the points, ^e Somerset,. 
 Smnernet v. Lord Poulett, 68 L. T. 613 ; varied by Court of Appeal, 
 W. N. (1893), p. 160. 
 
 (r) Slirkiif)/ V. Seivrll, 1 M. & C. 8 ; Drosier v. Brereton, 15 Beav. 
 221 ; lie Goiifrey, ilodfrey v. Fanthner, 23 Ch. D. 483. 
 
 (d) liudffe V. Gnmmoii, 7 Ch. App. 719 ; Stretlon v. A-shmall, 3 Drew. 
 12; Smethnrnt v. Hnntint/s, 30 Ch. 1). 490; Slichiey v. Setvell, supra; 
 Jie Olive, Olive v. iVexlei-juan, 34 Cli. D. 70. As to cottage property, 
 Bee PrieM v. Upplehy, 42 Cli. D. 351. 
 
 {e) Strellfju V. Axhiiinll, siijira ; lioydx v. lioyds, 14 Beav. 54; Wal- 
 rotl V. Lyoiix, 'A L. T. 78(i. 
 
 (/) lie WhiteJty, Whitdey V. Leuroyil, 12 Apj). Cas. 727. 
 
 (;/) //'' (loilfrey, Godfrey v. Faulkner, siijtra : lie Olive, Olive v, 
 Wettttrman, supra.
 
 DUTY OF TRUSTEE IN RELATION TO INVESTMENTS. 215 
 
 " (1.) A trustee lending money on the security of any property on Art. 40. 
 which he can Lxwfully lend shall not be chargealjle with breach of 
 trust by reason only of the proi:)ortion borne by 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 l)y a j^erson whom he reasonable believed to be an able 
 practical surveyor or valuer (Ji) instructed and employed indepen- 
 dently of any owner of the property, 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." 
 
 5. It will be seen, therefore, that the Act makes a very Digest of the 
 considerable alteration in the law, and it is apprehended ^g^^^^o^yalutf 
 that in future a trustee advancing trust money on mortgage now to be 
 v^^ill be safe if he observes the following particulars, viz. : — observed. 
 
 (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 ; 
 
 (3.) The surveyor must not be the surveyor of the 
 mortgagor in the matter ; 
 
 (4.) The surveyor must be instructed by the trustee to 
 make the valuation fo7' him ; and it is apprehended 
 that his instructions should state that the trustee 
 requires a valuation for the purpose of considering 
 the advisability of investing trust funds on the 
 security of the property ; 
 
 (5.) The surveyor must not merely value the property, 
 but must advise the trustee that the inoperty is a 
 'pro'per investment for the money lyrojjoscd to he lent ; 
 
 (A) The words ' ' reasonably believed " do not refer to the words 
 "instructed and employed" (i?e Walker, Walker v. Walker, 62 L. T. 
 447 ; A'e Somerset, Somerset v. Lord Poulett, 68 L. T. 614).
 
 216 THE ADMINISTRATION OF A TRUST. 
 
 Art. 40. (6.) The trustee must not lend more than two-thirds of the 
 
 surveyor's vahiation, but he may lend that much, 
 uTespective of the tenure of the property, or the 
 purposes for ^Yhich it is used, 
 
 fStatutory 6. It must, however, be borne in mind that the Act merely 
 
 precautions g^^^.g ^-^^^^ ■£ ^-^^ above precautions are taken a trustee shall 
 
 only relate - •■- 
 
 to value, and not be liable for breach of trust by reason only of the ino- 
 
 not to the portion borne by the amount of the loan to the value of the 
 
 security. property ; and therefore, a trustee would still be liable for 
 
 advancing the money on property of a speculative character 
 
 (such as a manufactory, a brickfield [i), or a china clay 
 
 field (y)), on the ground not that he advanced too large a 
 
 sura, but that he ought not to have advanced trust money on 
 
 such a security at all {k). 
 
 Duty of 7. But in addition to getting a legal first mortgage of pro- 
 
 trustees with perty of a proper value, the trustee was formerly bound to 
 
 title of pro- see that the mortgagor had a good legal title free from in- 
 
 perty niort- cumbrances (other than rent-charges created under the 
 
 them. ° Drainage Acts or the Improvement of Land Act, 1864 
 
 (27 & 28 Vict. c. 114)), Here, again, the bui'den has been 
 
 to some extent lifted from the shoulders of a trustee, by 
 
 s. 8 of the Trustee Act, 1893 (re-enacting s. 4 of the 
 
 repealed Act of 1888), by which it is enacted that — 
 
 " (2.) A trustee lending money on the security of any leasehold 
 ]iroperty shall not be chargeahle \\i\\\ hreach of trust only ujion the 
 ground that in making .such loan he dispensed either \vholly or 
 jiartly with the production or investigation of the lessor's title. 
 
 "(3.) A trustee .shall not be chargeable with breach of trust only 
 upon the ground that in effecting the iiurchase of or in lending 
 money upon the security of any property he has accepted a shorter 
 title than the title which a i)ui chaser is, in the absence of a special 
 contract, entitled to require, if in the opinion of the court the title 
 accepted be such a.s a per.-on acting witli iirudence and caution would 
 have accej)ted, 
 
 "(4.) This section applies to transfers of existing .securities as well 
 as to new securities, and to investments made as well before as after 
 
 (i) Uf. Whitdry, Whitdcy v. Lfdroyd, 12 A])]). Cas. 727. 
 (./) Rf. Timu.r, liarhrx. Innuij, ("l8!)7| 1 Cli. o.SG. 
 (/•) JovcK v. .hiliaii, 25 L. R. Ir. 45. Consider Re Walker, Walker v. 
 Walker, 62 L. T. 447.
 
 TRUSTEE TO PAY TRUST MONEYS TO EIGHT PERSONS. 217 
 
 the comiuencement of this Act, excejit where an action or other Art. 40. 
 proceeding was jiending with reference thereto on the twenty- 
 fourth day of December one thousand eight hundred and eighty- 
 eight." 
 
 Lastly, trustees should not enter into any arrangement Must not 
 
 with the mortgagor for the continuance of the loan for a «"g*ge not to 
 
 ^ '^ 1 T 1 1 p ,1 reahse for a 
 
 period of years (l) ; for they would thereby tetter them- long period. 
 
 selves in the event of it being desirable (by reason of 
 
 depreciation of the land or otherwise) to realise. 
 
 Aet. 41. — Diitij of Trustee to see that he 2^(^ys 
 Trust Moneys to the right Persons. 
 
 (1) The whole responsibihty of handing the 
 trust property to the persons entitled formerly fell 
 upon the trustee ; and if he handed it to the wrong 
 person, either through mistake on his part ijn), 
 or in consequence of some fraud practised upon 
 him, he had formerly to make the loss good, 
 however careful he might have been. Since 
 August 14th, 1896, the court has power to excuse 
 such a mistake made honestly and reasonably (;?) ; 
 but, nevertheless, in cases of doubt the trustee 
 should apply to the court for its direction (o). 
 
 (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 
 someone who claims through him), and the 
 trustees, having neither express nor constructive 
 
 [1) Vicary v. Evans, 30 Beav. 376. 
 
 (771) Be ffuUces, Powell v. Hulkes, 35 W. R. 194 ; as to fraud, see 
 Outler V. Boyd, 60 L. T. 859. See comments on this rule, p. 197, siipra. 
 
 (n) Judicial Trustees Act, 1896 (59 & 60 Vict. c. 35), s. 3, as to which 
 :see infra, Uiv. V. Cliap. II. 
 
 (o) Talbot V. Earl Radnor, 3 M. & K. 252 ; 3fulin v. Blagrave, 25 Beav. 
 137 ; Ashhy v. Black well, 2 Eden, 302 ; Eat'es v. Hickson, 30 Beav. 136 ; 
 jSpoi'le V. Burnahy, 10 Jur. (n.s.) 1142.
 
 218 
 
 THE ADMINISTRATION OF A TRUST. 
 
 •^^ ^- ^ - notice of such derivative title, pay upon the 
 footing of the original title, they cannot be made 
 to pay over again (jj). 
 
 Forged 
 authority. 
 
 Illustkatioxs of Paeageaph (1). 
 
 1. Thus, where a trustee made a payment to one vrho 
 produced a forged authority from the beneficiary, the trustee, 
 and not the beneficiary, had to bear the loss. For, as was- 
 said by Lord NokthdsGTOn (q), " a trustee, whether he be 
 a private person or a body corporate, must see to the reaUty 
 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 nuUitj*, and in consideration of law 
 and equity the right remains as before." 
 
 False 
 certificate. 
 
 Honest and 
 
 reasonable 
 
 mistake. 
 
 2. So, again, trustees who paid over the trust fund to 
 wrong persons, upon the faith of a marriage certificate, 
 which turned out to be a forgery, were made responsible for 
 so much of the trust fund as could not be recovered from 
 those who had wrongfully received it (r). The question 
 whether an honest and reasonable mistake as to the natm-e 
 of a forged document, or as to the construction of an obscure 
 one would now be excused under the Judicial Trustees Act, 
 1896 (59 & 60 Vict. c. 35), is discussed infra, Art. 76. 
 
 Alistake as to 3. A trustee who, by mistake, pays the capital to the 
 of settlement ^^nant 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 (s). And 
 similarly, trustees who have distributed a trust fund upon 
 what turns out to be an erroneous, although bond fide, con- 
 struction of the trust instrument, have hitherto been held 
 
 (/)) Cothrnj V. Sydenliam, 2 Br. Ch. Ca. 391; Leslie v. Baiilie,. 
 2 Y. & C. C. C. 01. 
 
 (q) A/'hhy V. Ji/arkwclt, xiipra. 
 
 (/•) JJaifii V. Jlirknoii, xujira ; and see also Bostock v. Floyer, 1 Ch. 
 Ai>p. 2(>, and Sutloii v. Wt/fltr, 12 Ki\. 37.3. 
 
 (h) Jktrruft V. Wyall, 30 Beav. 442 ; Davies v. Hodgson, 25 Beav. 
 177 ; GriffithH V. Porter, il>. 236.
 
 TRUSTEE TO PAY TRUST MONEYS TO RIGHT PERSONS. 'ilQ' 
 
 liable to refund the property distributed, together with Art. 41. 
 interest thereon at four (probably now, three) per cent. {t). 
 
 i. Formerly, a trustee who paid trust money to the attorney Paying under 
 of a beneficiary, was liable, if it turned out that the power po^er of 
 was revoked by death of the beneficiary or otherwise. How- ' 
 ever, by s. 23 of the Trustee Act, 1893 (56 & 57 Vict. c. 58) 
 (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 pay- 
 ment 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 sliall affect the right of any person entitled 
 to the money against the person to whom the jmyment 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 had against 
 the trustee." 
 
 Illustrations op Parageaph (2). 
 
 1. In Leslie v. Baillie {u), a testator who died, and Not bound 
 whose will was proved in England, bequeathed a legacy dgj-jy^^^e 
 to a married woman whose domicile, as well as that title. 
 
 of her husband, was in 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. 
 
 2. 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 [x). 
 
 (t) HilUard v. Fit/ ford, 4 Ch. D. 389 ; and see also Be Ward, 47 L. J. 
 Ch. 781 ; and Poicell v. Hulkes, 33 Ch. D. 552. 
 
 («) 2 Y. & C. C. C. 91 ; and see also Be Gull, 20 Eq. 561, 
 {x) Williams v. Williams, 17 Ch. D. 437.
 
 220 THE ADMINISTRATION OF A TRUST. 
 
 Art. 41. 3. Trustees are not bound to hand over the trust fund to 
 
 ■p. ~ the mortgagee of their beneficiary, where accounts are 
 
 between pending between the mortgagee and mortgagor (y). 
 
 beneficial 
 
 claimants. ^^ q^ ^^le other hand, a new trustee is liable to make 
 
 not*^searchincr good moneys paid by him bond fide to a beneficiary, if the 
 
 for notices papers relating to the trust comprise a notice of an incum- 
 
 •ot mcum- brance created by that beneficiary depriving him of the right 
 
 to receive the money. 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 (z). 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 (z). 
 
 Art. 42. — Dutj/ of Trustee not to delegate Ids 
 Duties or Poiuers. 
 
 (1) A trustee may not delegate his duties or 
 powers (or a fortiori., the receipt of trust moneys) 
 eitlier to a stranger («) or to his co-trustee (6), 
 save only 
 
 (a) where authorised by the settlement (c),s; or 
 by statute (c/). 
 
 (?/) Holhey v. Western, [1898] 1 Ch. .350. 
 
 (z) Hallows V. Lloyd, .39 Ch. D. 686. This is so even where the 
 trustees have a discretion to pay the income to or for the benefit of 
 tlie assignor, " his wife or cliihlren," if thoy do in fact jjay it to the 
 assignor (Ifcmmiwi v. NcaI, 62 L. T. 649). See also BiirvoirH v. Lock, 
 10 Ves. 470, and Re Colcmnn, Henry v. Sirowj, 39 Ch. 1). 44.3. 
 
 («) Adam-i v. Clifton, 1 liuss. '297 ; Chambers v. Minchiu, 7 Ves. 196 ; 
 Wood v. Wel<ihtiiuin, 1.3 Va{. 4.34; Re Bellamy and Metropolitan Board, 
 24 Cli. 1). 387. 
 
 (h) Laniiford v. Cascoigne, 11 Ves. 333 ; Clowjh v. Bond, 3 M. & C. 
 497 ; (Joirel v. ddlromhr, 27 15eav. .^(W ; AVf/y.s v. Hirk.son, 30 Beav. 
 1.3() ; /.V Floii-rr anil Md ro]i(ilit(tn liodrtl, 27 (^li. D. ">92. 
 
 (r) Kilhec v. ,S'/iey^/, 2 Moll. 199 ; Doi/lr v. Blah, 2 «ch. & L. 245 
 
 (d) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 17 (3).
 
 TEUSTEE NOT TO DELEGATE HIS DUTIES OR POWERS. 221 
 
 (b) where obliged to do so from necessity, Art. 42. 
 
 acting conformably to the common usage 
 of mankind, and as prudently as if acting 
 for himself (e), and the agent is employed 
 in the ordinary scope of his particular 
 business (/). 
 
 (c) where the delegated act is merely minis- 
 
 terial, and involves no personal dis- 
 cretion (g). 
 
 (2) But even where a trustee inay safely permit 
 another to receive trust property, he will not be 
 justified in allowing it to remain in such other 
 person's custody without due inquiry (Ji), nor for 
 a longer period than the circumstances of the 
 case require (i). 
 
 This rule is founded on the maxim delegatus non potest General 
 delegare. It is therefore an invariable rule, that, even in pi'^^ciple. 
 cases where a trustee may employ an agent, he must still 
 exercise his own judgment on every question, and must not 
 give the agent carte blanche to do what he may think fit {k). 
 
 The general principle as to the impi'opriety of delegating 
 fiduciary duties and powers has been modified, both by 
 judicial decisions and by statute ; but, although the Act 
 22 & 23 Vict. c. 35, s. 31 (now repealed and re-enacted by 
 s. 24 of the Trustee Act, 1893), enacted that — 
 
 "a trustee shall (without prejudice to the jirovisions of the instru- 
 ment, if any, creating tlie trust) be chargeable only for money and 
 securities actually received by him, notwithstanding his signing 
 
 (e) Speight v. Gaunt, 9 App. Cas. 1 ; Ex parte Belchier, Amb. 219 ; 
 Clough V. Bond, 3 M. & C. 497 ; Bennett v. Wyndham, 4 De G. & J. 257. 
 
 (/) Fry V. Tapson, 28 Ch. D. 268. 
 
 ig) Sug. Pow. 179 ; Farwell, Pow. 358, 360. 
 
 (h) Carruthers v. Carnithers, [1896] A. C. 659. 
 
 (?) Brice v. Stokes, 2 Wh. & Tu. 865 ; Gregory v. Gregory, 2 Y. & 0. 
 C. C. 313 ; Be Fryer, 3 K. & J. 317 ; Bohimon v. Harkin, [1896] 2 Ch. 
 415. 
 
 (k) See Be Weall, Andrews v. Weall, 42 Ch. D. 674.
 
 222 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 42. 
 
 Effect of 
 statutory 
 modification. 
 
 Opinion of 
 Kekewich, 
 J., as to 
 trustee's 
 liability for 
 his agents. 
 
 any receipt for the sake of conformity, and shall be accountable onlj' 
 for his own acts, receipts, neglects, or defaults, and not for those of 
 any other trustee, nor for any banker, broker, or other i^erson with whom 
 any trust moneys or securities may be deposited " ; 
 
 yet, as was pointed out by Lord Selboene, in the leading 
 case of Speight v. Gaunt {I), this statute does not authorise 
 a trustee, at his own mere will and pleasure, to delegate the 
 execution of the trust and the custody of the trust moneys 
 to strangers in the absence of a moral necessity from the 
 usage of mankind for the employment of such an agency. 
 
 Indeed, the only effect of the section appears to be, to 
 shift the onus of proof from the trustee to the beneficiaries ; 
 so that whereas formerly it lay upon a trustee whose con- 
 duct was impugned to prove that he had acted from necessity 
 according to ordinary business usage, it now lies on the 
 beneficiaries, who make a charge of breach of trust, to prove 
 that the trustee did not act from necessity or conformably to 
 the universal custom (7;i). 
 
 The question was treated with great perspicuity by Mr. 
 Justice Kekewich, in the case of Be Weall, Andreios v. 
 Weall (n), where his lordship said : " Consider for a moment 
 the position of that special agent called a trustee as regards 
 the position of sub-agents. He certainly has the right to 
 appoint them, if and so far as the work of the trust reasonably 
 requires. For instance, he may appoint a broker to make 
 or realise investments, or a solicitor to do legal business ; 
 and the power of employment involves that of remuneration 
 at the cost of the trust estate. The limit of the power of 
 employment is, as pointed out in the well-known case of 
 Spc.'ujht V. Gaunt {I), reasonableness; and reasonableness 
 must also, I think, be the limit of the power of remuneration. 
 A trustee is bound to exercise discretion in the choice of his 
 agents, but, so long as he selects persons properly qualified, 
 he cannot be made responsible for their intelligence or 
 their honesty. lie does not in any sense guarantee the 
 performance of their duties. It does not, liowever, follow 
 
 (/) '.) A J.]). Ciis. 1. (u) 42 Ch. 1). 674. 
 
 (m) .Sec Ut JJriu; Brier v. Erison, 26 Ch. 1). 2.S8.
 
 TRUSTEE NOT TO DELEGATE HIS DUTIES OR POWERS. 223 
 
 that he can entrust his agents with any duties which they are Art. 42. 
 wilhng to undertake, or pay them or agree to pay them any 
 remuneration which they see fit to demand. The trustee 
 must consider these matters for himself, and the court 
 would be disposed to support any conclusion at which he 
 arrives, however erroneous, provided it really is Jiis con- 
 clusion — that is the outcome of such consideration as might 
 reasonably be expected to be given to a like matter, by a 
 man of ordinary prudence, guided by such rules and argu- 
 ments as generally guide such a man in his own affairs." 
 
 It must also be pointed out, that although trustees must Trustee may 
 always exercise their own judgment, and not surrender it to beneficiaries, 
 agents and, a fortiori, not to beneficiaries, yet they are not 
 debarred from inquiring what are the wishes and opinions 
 of any of the parties interested. x\s Lord Selborne said in 
 Frasor v. Murdock{o) : "In this case, I find no indication of an 
 improper purpose. ... It would be extremely dangerous 
 to hold that trustees, having such a discretion to exercise, 
 might not freely discuss with the beneficiaries the reasons 
 for and against a particular decision, without running the 
 risk of being held to act against their own judgment, if they 
 should disregard, in the end, objections to which they had 
 thought it right in the first instance to direct attention." 
 
 Illustrations of Paragraph (1). 
 
 1. Nevertheless, although a trustee may listen to the Must not 
 opinions and wishes of others, he must exercise his own Y^'-y trust 
 
 OIISIIICSS 
 
 judgment. Thus a trustee for sale of ordinary property, entirely to 
 who leaves the whole conduct of the sale to his co-trustee, co-trustee, 
 cannot shield himself from responsibility for the latter' s 
 negligence by saying that he left the matter entirely in his 
 hands {p). For the settlor has entrusted the trust property 
 and its management to all the trustees, and the beneficiaries 
 are entitled to the benefit of their collective wisdom and 
 experience {q). 
 
 (o) 6 App. Cas. 855. 
 
 [p) Oliver V. Court, 8 Pr. 166 ; Re Chertsey Market, 6 Pr. 285 ; Hard- 
 wicke V. Myncl, 1 Anst. 109 ; Rohimon v. Harkin, [1896] 2 Ch. 415. 
 (g) See Luke v. Sovth Kejisington Hotel Co., 11 Ch. D. 121. 
 
 T. * p 8
 
 224 
 
 THE ADMINISTEATIOX OF A TRUST. 
 
 Art. 42, 
 
 Should not 
 associate a 
 stranger in 
 the manage- 
 ment 
 
 Choice of 
 ad\isers. 
 
 2. Conversely, a trustee must not associate with himself 
 another person (who is not one of the trustees) in the 
 management of the trust estate. For the settlor has trusted 
 him, and not the other person, and by allowing the latter 
 to have the joint control of the property, the trustee puts 
 it out of his own power to deal with it promptly and 
 effectually in case of necessity (r). 
 
 3. So, again, where trust property has to be valued for 
 the purposes of sale, or property offered to trustees as a 
 security for trust money has to be valued, or trust money 
 has to be invested — the trustees must themselves choose 
 the valuer or broker, and must not delegate that duty to 
 their solicitors, nor even to one of themselves (s). No doubt 
 trustees can employ a solicitor for legal matters which the 
 trustee is not competent to undertake, for that is necessary ; 
 but the choice of a broker or valuer is not properly the 
 business of solicitors, but is a matter on which a trustee 
 should exercise his own judgment {t). Of course, it must 
 be understood that this does not preclude a trustee from 
 asking advice or information as to the character of a broker, 
 valuer, or other necessary agent, or from asking his solicitors 
 to submit the names of such. All that is meant is, that he 
 must judge for himself on the facts reported to him to guide 
 his choice, and must not delegate the duty of choosing the 
 agent either to his solicitors or to anyone else. In any case 
 he should not choose an " outside " broker (s). 
 
 Power to 
 lease, sell 
 etc 
 
 i. A power of leasing cannot be delegated, for in its 
 exercise much judgment is required. The fitness and 
 responsibihty of the lessee, the adequacy of the rent, the 
 length of the term to be granted, and the nature of the 
 covenants, stipulations, and conditions which the lease 
 should contain, arc all matters requiring knowledge and 
 prudence {u). On similar grounds, a trustee cannot dele- 
 gate (as, for instance, by power of attorney) the execution 
 
 (r) Sn/way v. Scdway, 2 R.'& M. 215 ; White v. Baugh, 3 CI. & Fin. 
 44. As to permitting their solicitor, or one of themselves to have the 
 custody of hearer bonds, see supra, n. 19S ; lUust. 18. 
 
 (x) Uohimon V. Hnrkin, |1896] 2 Ch. 415. 
 
 (/) See per Kay, J., in Frif v. Tapson, 28 Ch. D. 268. 
 
 ill) Jiobwn V. Flii/ht, 4 D. J. & ». 614.
 
 TRUSTEE NOT TO DELEGATE HIS DUTIES OR POWERS. 225 
 
 of a trust or power to sell property. For the settlor has Art. 42, 
 placed confidence in his discretion as to price and con- 
 ditions, and it is a breach of that confidence to pitch-fork 
 the entire business on to another person, without retaining 
 any control or authority over it (*). On the other hand, a 
 trustee may appoint an attorney merely to pass the legal 
 estate, as such an act involves no discretion (a). So 
 v^here trustees had power to elect a clergyman, it was held 
 that they could not appoint proxies to vote ; but when the 
 choice was once made, they could appoint proxies for the 
 purpose of signing the formal presentation {h). However, 
 the rule yields to necessity, and trustees may appoint an 
 attorney to act for them in a foreign country, even in 
 matters involving judgment and discretion (c). 
 
 5. On the other hand, where the property is of a nature ^lay employ 
 {such as stocks or shares) which, practically speaking, a ^M^nts where 
 trustee cannot personally sell, or which it would be dis- obliged to 
 tinctly contrary to the ordinary usage of mankind for him to ^^° ^°- 
 
 sell personally, he may employ an agent or broker, so long 
 as he acts as prudently as he would have done for himself in 
 a like case {d). For " where an investment of trust moneys 
 is proper to be made upon securities which are purchased 
 and sold upon the public exchanges, either in town or 
 country, the employment of a broker, for the purpose of 
 purchasing those securities, and doing all things usually 
 done by a broker which may be necessary for that purpose, 
 {•s, prima facie legitimate and proper. A trustee is not bound 
 himself to undertake the business (for which he may be 
 very ill-qualified) of seeking to obtain them in some other 
 way ; as, for example, by public advertisement or by 
 private inquiry '' (c). 
 
 6. So trustees may appoint stewards, bailiffs, workmen ^slay employ 
 
 and other agents of the like kind ; for there is a moral "killed 
 
 persons. 
 
 (x) Oliver v. Court, 8 Pr. 166 ; Hardwidce v. Mynd, 1 Anst. 109 ; 
 Hawkins v. Kemp, 3 East, 410. 
 
 (a) Re Hetling and Merton, 42 W. R. 19. 
 
 (l)) Alt.- Gen. v. Scott, 1 Ves. sen. 413. 
 
 (<■) Stuart V. Norton, 14 Moo. P. C. 17. 
 
 {d) Ex parte Belchier, Amb. 219. 
 
 (e) Per Selborne, L.C, Speight v. Gaunt, 9 App. Cas. 1. 
 
 T. Q
 
 226 THE ADMINISTRATION OF A TRUST. 
 
 Art. 42. necessity for them to do so (/). And on the same ground, 
 they may employ solicitors, valuers (g), auctioneers, and 
 other skilled persons to do acts which they themselves are 
 not competent to do. They may employ an accountant 
 where their accounts are of a complicated nature, and the 
 occasion is one in which, according to the usage of business, 
 a prudent man, acting for himself, would employ such a 
 person (/;). But of course trustees are not entitled to have 
 their books of account of income and expenditure regularly 
 kept by an accountant, merely in order to save themselves 
 trouble. As Lord Halsbuby said, in Be Whiteley, 
 JMiiteley v. Learoyd (i), "I think it is quite clear, that 
 a trustee is entitled to rely upon skilled persons in matters 
 in which he cannot be expected to be experienced. He 
 may perhaps rely upon a lawyer on some matters of law, 
 and in this case I do not deny that he would be entitled to 
 rely upon a valuer upon a pure question of valuation. But 
 unless one examines with reference to what question the 
 skilled person gives advice, it is possible to confuse the 
 reliance which may be properly placed upon the skill of a 
 skilled person with the judgment which the trustee himself 
 is bound to form on the subject of the performance of his 
 trust. I do not think it is true to say that one is entitled to 
 consider the special qualities or degree of intelligence of the 
 particular trustee. Persons who accept that office must be 
 supposed to accept it with the responsibility at all events 
 for the possession of ordinary care and prudence." 
 
 Wlicther 7. Lord Halsbury's phrase, " he may, 2:)erJiaps, rely upon 
 
 ha ) e oi lawyer in some matters of law," referred, it is conceived, 
 
 negligence •' > > » 
 
 of aolicitoi- to the dt)ubt thrown upon that proposition by the decision 
 of the late Lord Eomilly in Hopgoocl v. Parkin (k), where 
 that learned judge carried the liability of trustees for the 
 acts and defaults of their agents to a height which, it is 
 with humility suggested, was by no means justified, either 
 
 (/) /.V Whilchn, Whiteley t. Lenroyd, 12 App. Cas. 727. 
 
 (if) W'itli rogar<l to valuers, a trustee is now expressly authorised to 
 act on a valuer's i-epoit and advice as to tlie value of pro])iMty oflered 
 as a security for trust funds ('I'rustee Act, ISiKJ (50 & 57 Viet. c. r).3), 
 H. 8, mie Hiijn-d, p. 2I.S). 
 
 (A) Sec New V. Jonrx, 1 M. & (J. GG8 n. ; Henderson v. M'Ivei\ 
 3 Madd. 27.'>. 
 
 (i) 12 App. Cas. 727, at p. 7:51. (/) II K(i. 70.
 
 TEUSTEE NOT TO DELEGATE HIS DUTIES OE POWEES. 227 
 
 on principle or authority. In that case, trustees, having Art. 42. 
 trust funds to lend on mortgage, employed a solicitor to ~' 
 
 investigate the mortgagor's title. Owing to the solicitor's 
 negligence, in failing to make proper inquiries as to previous 
 incumbrances, the trust moneys advanced on the mortgage 
 were to a large extent lost, and his lordship held that the 
 trustees must replace them. But it is difficult to understand 
 upon M^hat grounds the learned judge based his opinion. The 
 trustees were right in investing on mortgage : they were right 
 in employing a skilled person to investigate the real value of 
 the security ; indeed, it is apprehended, from the remarks 
 of the late Sir George Jessel, M.E., in Be Cooper and 
 Allen (l), that it was the duty of the trustees to employ a 
 skilled person. In addition to which, there was a moral 
 necessity for them to employ a skilled agent to investigate 
 the title, and they were but acting conformably to the 
 general "usage of mankind, and as prudently for the trust 
 as for themselves, and according to the usage of busi- 
 ness " (m). If, then, they were right in employing the 
 solicitor to investigate the title for them, upon what possible 
 ground could they be held responsible for their agent's 
 default? As Lord Hardwicke said, in Ex ixivte Belchier [n), 
 if the defendant "is chargeable in this case, no man in his 
 senses would act. . . . This Court has laid down a rule 
 with regard to the transactions of assignees, and more so of 
 trustees, so as not to strike a terror into mankind acting for 
 the benefit of others, and not for their own " ; and his lord- 
 ship then proceeded to lay down the rule as above stated. 
 It is with great respect submitted, that Lord Eomilly con- 
 fused the case with those in which it has been held that a 
 trustee is responsible for a breach of trust which he has 
 committed bond fide and under skilled advice. The dis- 
 tinction, is, however, clear. The trustees had not doiie 
 anything wrong. They had not committed any breach of 
 trust at the instance of another. They had merely lent 
 money through the medium of an agency, which they were 
 entitled, and indeed bound, to employ, on the ground of 
 moral necessity, and they ought therefore to have been 
 
 {I) 4 Ch. D. 815. 
 
 (7)i) Per Lord Hakdwicke, Ex parte Belchier, Amb. 219 ; and to the 
 same effect, Lord Selborne in Speight v. Gaunt, 9 App. Cas. 1, 
 (m) Stipixi.
 
 228 
 
 THE ADillNISTRATION OF A TEUST. 
 
 Art. 42. 
 
 ■\Miether 
 a trustee 
 rightly 
 employing an 
 agent maj- 
 tnist him 
 Ts-ith trust 
 money. 
 
 Statutorj' 
 authority' 
 to entrust 
 trust V>on(l 
 to solicitor 
 or banker. 
 
 discharged from the loss. Had there been a distinct breach 
 of some duty which the settlor had cast upon the trustees, 
 then, although they might have taken and followed the best 
 advice procurable, they would, no doubt, have been properly 
 held responsible ; but here, the only possible breach of duty 
 was the negligeiice of an agent, and, as has been said above, 
 a trustee is only responsible for his agent where he has 
 improperly employed one. Moreover, since the above was 
 first written, Lord Justice Lixdley, in Speight\. Gaunt (o), 
 has expressly dissented from Hopgood v. Parkin, and, 
 indeed, it seems to be quite inconsistent with the judg- 
 ments of the learned Lords of Appeal in that case. 
 
 8. Even where a trustee is justified in delegating the sale 
 or purchase of property to other persons (such as brokers, 
 solicitors, and the like), it does not necessarily follow that 
 he is justified in giving them the control of the purchase- 
 money. That question must be regarded as a separate and 
 distinct one, to be solved on its own merits, but b}' the 
 application of the same principle, viz., whether or not there 
 is a moral necessity or a conformity to common usage. 
 Thus, where a trustee handed money to a solicitor for the 
 purpose of re-investment, and the solicitor professed to have, 
 but in reality had not, invested it, but had used it for his 
 own purposes, and himself paid interest on it for some years 
 until his death, it was held that the trustee was hable {p ) ; 
 for he ought not to have entrusted the money to a sohcitor 
 when there was no necessity. 
 
 9. On similar grounds, it was formerly held, in lie 
 Bellamy and Metropolitan Board {q), that trustees were not 
 entitled to authorise their solicitor to receive purchase- 
 money payable to them, notwithstanding s. 56 of the 
 Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. 
 c. 41). However, by s. 17 of the Trustee Act, 1893 
 (56 & 57 Vict. c. 53) (re-enacting s. 2 of the Trustee Act, 
 1888), it is enacted as follows : — 
 
 (o) 22 Ch. D., at p. 761 ; and .see per Pe.\RSON, J., in Re Pearson, 
 Oxhyy. Srarth, 51 L. T. 672 : Rt W'taJI, Amlrewsv. \Vea/(, 42 Ch. D. 674. 
 
 ip) Bo^forL- V. F/oy(r, 1 Eq. 29; Rowland v. Witherdtn, 3 M. & G. 
 56H ; JIanhnry v. Kirk/and, 3 Sim. 265 ; Dewar v. Brooke, 33 W. R. 
 497. But see Re Bird, 16 Eq. 203, contra, a decision which, it is 
 conceived, cannot be supported. 
 
 (7) 24 Ch. D. 387.
 
 TRUSTEE NOT TO DELEGATE HIS DUTIES OR POWERS. 229 
 
 "(1.) A trustee may appoint a solicitor to be his agent to receive Art. 42. 
 and give a discharge for any money or valuable consideration or 
 property receivable by the trustee under the trust, by permitting the 
 solicitor to have the custody of, and to produce, a deed containing 
 any such receipt as is referred to in section 56 of the Conveyancing and 
 Law of Property Act, 1881 ; and a trustee shall not be chargeable 
 with breach of trust by reason only of his having made or concurred 
 in malving any such appointment ; and the producing of any such 
 deed by the solicitor shall have the same validity and effect under 
 the said section as if the person appointing the solicitor had not been 
 a trustee. 
 
 "(2.) A trustee may appoint a banker or solicitor to be his agent 
 to receive and give a discharge for any money payable to the trustee 
 under or by virtue of a policy of assurance, by permitting the banker 
 or solicitor to have the custody of and to produce the policy of 
 assurance with a receipt signed by the trustee, and a trustee shall 
 not be chargeable with a breach of trust by reason only of his having 
 made or concurred in making any such appointment. 
 
 "(3.) Nothing in this section shall exempt a trustee from any 
 liability which he would have incvirred if this Act had not been 
 passed, in case he permits any such money, valuable consideration, 
 or property to remain in the hands or under the control of the 
 banker or solicitor for a period longer than is reasonably necessary 
 to enable the banker or solicitor (as the case may be) to j)ay or 
 transfer the same to the trustee. 
 
 "(4.) This section applies only where the money or valuable 
 consideration or property is received after the 24th day of December 
 one thousand eight hundred and eighty eight. 
 
 " (5.) Nothing in this section shall authorise a trustee to do any- 
 thing which he is in express terms forbidden to do, or to omit 
 anything which he is in express terms directed to do, by the instru- 
 ment creating the trust." 
 
 The section is not, perhaps, so happily expressed as it 
 might be. For instance, can a trustee authorise his solicitor 
 to receive consideration money, except by permitting him to 
 have the custody of the deed, etc. ? And where the receipt 
 is indorsed on a deed, and not contained in the body thereof, 
 can that deed be said to be "a deed containing any such 
 receipt as is referred to in the 56th section of the Con- 
 veyancing and Law of Property Act, 1881 " ? 
 
 The first of these queries is, it is submitted, by no means 
 hypercritical, and in cases where any money or property is
 
 •230 THE ADMINISTRATION OF A TRUST. 
 
 Art. 42. receivable by a trustee on any occasion where the execution 
 of a deed by the trustee is not necessary (as, for example, 
 the payment of a legacy by executors to the trustees of the 
 legatee's marriage settlement), considerable doubt must 
 exist as to whether the payment can be properly made to 
 the trustee's solicitor under this sub-section, even although 
 the solicitor be expressly authorised by the trustee to receive 
 it. This view receives some support from the provisions 
 contained in sub-s. (2), which expressly authorise a trustee 
 to appoint a soHcitor his agent to receive policy moneys 
 hy permitting him to have tJie custody of and to produce the 
 policy with a receipt signed by the trustee. For policy 
 money would certainly fall within the first sub-section as 
 " money receivable by such trustee " ; and if, under 
 sub-s. (1), the trustee could appoint a solicitor in any other 
 way than that indicated, there would have been no necessity 
 for expressly authorising (by sub-s. (2) ) a trustee to appoint 
 a solicitor to be his agent to receive and give a discharge 
 for poHcy moneys, and for declaring that no trustee shall be 
 chargeable with a breach of trust by reason only of his 
 having made or concurred in making an appointment of a 
 solicitor for that purpose. Anyhow, the point does not 
 appear to be free from doubt. 
 
 With regard to the second query, it is probable that the 
 court would consider an indorsed receipt as equivalent to a 
 receipt contained in the deed on which it is indorsed, within 
 the meaning of the sub-section. 
 
 It will be perceived that sub-s. (1) does not authorise a 
 trustee to appoint anyone to receive money, valuable con- 
 sideration, or property, except a solicitor. Consequently, the 
 decision in Re Floicer and Metropolitan Board of Works (r), 
 that one of sevei^al trustees cannot in general be authorised 
 by his co-trustees to receive and give a good receipt for 
 trust moneys, still holds good. It is apprehended, however, 
 that where one of the trustees is a solicitor, the money may 
 be paid to him on production of a deed containing a receipt, 
 notwithstanding that he may not be acting as the solicitor 
 to the trustees. 
 
 (r) 21 Ch. D. .392.
 
 TRUSTEE NOT TO DELEGATE HIS DUTIES OR POWERS. 231 
 
 10. Apart from statutory authority, where there is a Art. 42. 
 moral necessity to entrust the agent with the money, ~ 
 
 a trustee will be justified in doing so, as was decided by ti"^^ money 
 the House of Lords in the important case of Sxieicjht v. to stook- 
 Gaunt (s). There, the respondent, Isaac Gaunt, being ^J™ker. 
 acting trustee under the will of John Speight, a stuff manu- 
 facturer at Bradford, wished to invest the sum of £15,275, 
 part of the trust estate, in the securities of municipal 
 corporations in Yorkshire, and for that purpose he employed 
 a stockbroker, named Cooke, to buy the stock for him. 
 Cooke having falsely represented that he had purchased the 
 stock, the respondent gave him cheques for the amount, 
 which Cooke embezzled. The beneficiaries then sought to 
 make the trustee liable for the sum embezzled by Cooke. 
 In giving judgment, exonerating the trustee from liability, 
 the Earl of Selbokne said : "In the early case of Ex parte 
 Belchier, before Lord Habdwicke [t), it was determined, 
 that trustees are not bound personally to transact such 
 business connected with, or arising out of, the proper duties 
 of their trust, as, according to the usual mode of conducting 
 business of a like nature, persons acting with reasonable 
 care and prudence on their own account would ordinarily 
 conduct through mercantile agents ; and that when, accord- 
 ing to the usual and regular course of such business, moneys, 
 receivable or payable, ought to pass through the hands of 
 such mercantile agents, that course may properly be followed 
 by trustees, though the moneys are trust moneys ; and that 
 if, under such circumstances, and without any other mis- 
 conduct or default on the part of the trustees, a loss takes 
 place through any fraud or neglect of the agents employed, 
 the trustees are not liable to make good such loss." His 
 lordship, after discussing the question whether it was proper 
 to employ a broker at all, which he answered in the affirma- 
 tive, continued : " The next subject of inquiry is, whether 
 it was a just and proper consequence of that employment, 
 according to the principle of Ex parte Belchier, that the 
 trust money should pass through his hands. , . . The 
 whole evidence satisfies me that the usual and regular 
 • course of business on the London Exchange is, for the 
 
 (s) 9 App. Cas. 1. (t) Amb. 218.
 
 ■23-2 
 
 THE ADMINISTRATIOX OF A TEUST. 
 
 Art. 42. money, under such circumstances, to pass through the 
 broker's hands." Their lordships, therefore, exonerated 
 the trustee fi'om responsibility. 
 
 May employ 
 a debt col- 
 lector. 
 
 Remitting 
 mone\' 
 througli 
 banker. 
 
 Custody ot 
 securities. 
 
 Joining with 
 others in a 
 sale. 
 
 11. So, again, -where there are numerous small debts to 
 be collected, it cannot be expected of executors or trustees 
 that they should personally call on each debtor. Conse- 
 quently, if under such circumstances they employ, in the 
 usual course of business, a debt collector, and the money 
 collected is lost by reason of the collector's insolvency, the 
 trustees are prima facie not responsible (u). 
 
 12. On the ground of conformity to universal usage, 
 trustees may remit money through the medium of a respect- 
 able bank, as being the most convenient and the safest 
 mode (x) ; but they should pay the money into the bank as 
 trustees, and eo nomine (y). 
 
 13. It is obvious that several trustees cannot all have the 
 physical custody of the tnist securities. This is of no great 
 importance where they have the legal estate in lands, or 
 where they are holders of registered stocks. But where the 
 securities are "bearer secuxities," the matter becomes of 
 importance. In such cases they should not leave them 
 either with their solicitor (z) or with one of themselves (a), 
 but should place them in the custody of their banker (b). 
 
 14. On the principles enunciated in the article now under 
 consideration, it has been held, that if "trustees for sale 
 join with any other person in a joint sale of the trust 
 property and any other property, whether that person be a 
 trustee himself or be a beneficial owner, they must take 
 care that their share of the purchase-money is paid to them ; 
 and the purchaser must take care of that likewise, because 
 he can only pay trust money to the tinistees. Therefore, 
 when they do join with other people the purchase-money 
 
 («) Rt Brier, Brier v. En-sou, 26 Cli. D. 238. 
 
 ix) Kni'jht V. Earl of Ph/month, 1 Dick. 120. 
 
 (y) Wren v. Kirfoii, 1 1 Ves. 380. 
 
 (:) Field v. FitM, fl8lt4] 1 Cli. 42;). 
 
 (a) CaniUtr v. TUltU, 22 Beav. 257 ; Ltin:< v. Xohh^, 8 Cli. D. 595. 
 
 (h) Rt Dt Pothouier, Dtnt v. Dt Pothonitr, [1900] 2 Ch. 529.
 
 TEUSTEE NOT TO DELEGATE HIS DUTIES OR POWERS. SSS' 
 
 must be apportioned before the completion of the purchase, Art. 42. 
 and must be paid by the purchaser, the apportioned part 
 coming to the trustees to be paid to them " (c), or, now, to 
 their solicitor, under s. 17 of the Trustee Act, 1893 (d). 
 
 Illustrations of Pabagbaph (2). 
 
 1. On similar principles (viz., conformity to ordinary Leaving 
 business usage), a trustee may allow an auctioneer who is money in 
 selling the trust property, to receive the deposit money ; auctioneer, 
 but he must not allow it to remain in the auctioneer's hands 
 
 for an unreasonable time (e). 
 
 2. So, again, a trustee may, and indeed should, deposit Entrusting 
 trust moneys in a respectable bank pending investment ; moi^ej's to a 
 and he will not be liable for the failure of the bank, unless 
 
 he left the money there for an unnecessarily long period. 
 For it is according to the common usage of mankind to 
 make use of banks for the safe custody of money (/). But 
 a trustee will be liable where he has unnecessarily left trust 
 moneys in the hands of a banker who fails, when he ought 
 to have invested them ; or where he has paid money to a 
 banker or broker for investment and has neglected for some 
 time to make inquiries as to such investment {g) ; and the 
 usual clause indemnifying him against the acts or defaults 
 of others will not protect him (h). In a comparatively 
 recent case, Kay, J., held that six months was the maximum 
 time for which trustees should deposit money in a bank ; 
 and that if at the expiration of that period no other invest- 
 ment was available, the trustees ought to invest in consols. 
 In the case in question the trustees had kept the money on 
 deposit for fourteen months, and were held responsible for 
 the loss caused by the failure of the bank (i). 
 
 (c) Per Jessel, M.R., Be Cooper and Allen, 4 Ch. D. 815. 
 
 (d) Supra, p. 228. 
 
 (e) Edmonds v. Peake, 7 Beav. 239 ; Wymanw. Paterson, [1900] A. C. 
 270. 
 
 (/) Johnson v. Newton, 11 Hare, 160 ; Fenwichv. Clarke, 31 L. J. Ch. 
 728, and per Lord Hardwicke, Ex parte Belchier, Amb. 219. 
 
 (g) Challen v. Shippam, 4 Hare, 555 ; Rehden v. Wesley, 29 Beav. 213 ; 
 Mattlieivs v. Brise, 6 Beav. 239 ; Moyle v. Moyle, 2 R. & M. 710. 
 
 (/i) Rehden v. Wesley, supra. 
 
 (i) Cann v. Caiin, 51 L. T. 770.
 
 ■i^34 THE ADMINISTRATION OF A TRUST. 
 
 Art. 43. 
 
 Art. 43. — Dutij of Trustees to act jointly where 
 more than one. 
 
 Where there are more trustees than one, all 
 must join in the execution of the trust (A;), save 
 only — 
 
 (a) where the settlement or a competent 
 
 court otherwise directs ; 
 
 (b) as to the receipt of income (!) ; 
 
 (c) as to such matters as can be lawfully 
 
 delegated under Art. 42. 
 
 This article is a corollary of Art. 42. For, if trustees 
 cannot delegate their duties, it follows that they must all 
 personally perform those duties, and not appoint one of 
 themselves to manage the business of the trust. It is not 
 unusual to find one of several trustees spoken of as the 
 " acting trustee," meaning the trustee who personally 
 interests himself in the trust affairs, and whose decisions 
 are merely indorsed by his co-trustees. The court, how- 
 ever, does not recognise any such delegation ; for the settlor 
 has trusted all the trustees, and it behoves each and every 
 of them to exei'cise his individual judgment and discretion 
 on every matter, and not blindly to leave all questions to 
 his co-trustees or co-trustee {vi). 
 
 Illustrations. 
 
 Oiuinot act 1, Thus, the act of a majority of private trustees cannot 
 
 miijority. ^'"^ ^ dissenting minority, nor the trust estate. In order 
 
 (Ic) Luke V. South Kcimngfon Hotel Co., II Ch. D. 121 ; Ex parte 
 Clrijjiii, 2(\. & .1. 110; lit Flower and Metropolitan Board, 27 Ch. D. 
 .'592. 
 
 (/) Ah to HliaroH and stocks, sec Companies Act, 1862 (25 & 26 Vict, 
 c. 89), (JlauHc 1 of 'I'aliio A., and same Act, s. .SO; hutconsidcr liinneyy. 
 Inn: JlaJl Co., .'{5 \j. .J. Cli. .'{G.*}. As to rents, see Toionley v. Sherborne, 
 Bridg. .Sf) ; <l(,hls,rorlhi/ v. Knight, 11 M. & W. 337; and Oough v. 
 Smith, W. N. (1872), p. 18. 
 
 (m) Munch v, Cockeretl, 5 My. & Cr. 179.
 
 TEUSTEES TO ACT JOINTLY WHERE MORE THAN ONE. 235 
 
 to bind the trust estate the act must be the act of all {n). Art. 43. 
 Tor instance, where there is a trust to sell real estate, with ^ 
 
 a discretionary power to postpone the sale the property 
 must be sold within a reasonable time, unless the trustees 
 are unanimously in favour of a postponement (o). 
 
 2. So, all the trustees must join in the receipt of money, Must all join 
 unless, of course, the settlement authorises one of them to "^ I'eceipt. 
 give good receipts and discharges. For, as Kay, J., said in 
 
 lie Flower and Metropolitan Board [p], " The theory of every 
 trust is, that the trustees shall not allow the trust moneys 
 to get into the hands of any one of them, but that all 
 shall exercise control over them. They must take care that 
 they are in the hands of all, or invested in their names, or 
 placed in a proper bank in their joint name. The reason 
 why more than one trustee is appointed, is, that they shall 
 take care that the moneys shall not get into the hands of 
 one of them alone ; and they have no right, as between them- 
 selves and the cestuis que trusts, unless the circumstances 
 are such as to make it imperatively necessary to do so, to 
 authorise one of themselves to receive the moneys " (q). 
 
 3. All investments of trust moneys should be made in the Investments 
 
 joint names of the trustees, for otherwise it would enable ? ^^^l ® ^" 
 ^ ' jonit names. 
 
 one trustee to realize and appropriate the money (j'). But 
 this must of course yield to necessity, as, for instance, 
 where shares were specifically bequeathed to trustees upon 
 •certain trusts, and it was found that by the regulations of 
 the company the shares could only be registered in the name 
 ■of one trustee (s). 
 
 i. As a general rule, however, although trustees must join Income, 
 in the receipt of capital, it is permissible for them to allow 
 
 (n) Luke v. South Kensington), Hotel Co., supra. It is otiierwise, 
 however, with regard to charitable trustees : see Charitable Trusts 
 Act, 1869 (32 & 33 Vict. c. 110), s. 13. There is also an exception in 
 the case of trustees of a manor with regard to enfranchisement, as to 
 which, see Copyhold Act, 1887 (50 & 51 Vict. c. 73), s. 40. 
 
 (o) Re Roth, Goldberger v. Roth, 74 L. T. 50. 
 
 {p) 27 Ch. D. 592. 
 
 (q) See also Lee v. Sankey, 15 Eq. 204 ; Clough v. Bond, 3 My. & Cr. 
 490 ; and Walker v. Symonds, 3 Sw. 63. 
 
 (r) Lewis v. Nohhs, 8 Ch. D. 595 ; Swale v. Swale, 22 Beav. 584. 
 
 (s) Consterdine v. Consterdine, 31 Beav. 330.
 
 '2m 
 
 THE ADMINISTEATION OF A TRUST. 
 
 Art. 43. one of their number to receive the income. Thus, in the 
 case of rents, the trustees may delegate the collection to 
 one of their number or to a rent collector. For it would be 
 impossible for them all to collect the rents {t). But if there 
 is any fear of misappropriation by the collecting trustee, the 
 others should notify the tenants not to pay him again (w). 
 A similar rule applies to the receipt of dividends on stocks 
 or shares, from the necessity of the case, because the com- 
 panies are not bound to recognise trusts, and always pay to 
 the first of several joint holders (x). 
 
 Trustee 
 joining in 
 receipt for 
 conformity. 
 
 5. In cases where, from necessity, a trustee may permit 
 his co-trustee to receive moneys owing to the estate, {e.g., 
 where he permits him to collect rents), then, even though 
 he join in the receipt for such moneys, and thereby acknow- 
 ledge that he has received them , he will not be liable if he 
 can prove (y) that he did not in fact receive them, and only 
 joined in the receipt for the sake of conformity (z). For 
 one of several trustees cannot alone give a good receipt, 
 unless expressly empowered to do so by the settlement ; 
 nor can trustees empower one of their number to receive 
 and give a good receipt for trust moneys, and all must, 
 therefore, join (a). So that, although at law the signature 
 of a trustee is (or rather was (b)) conclusive evidence that 
 the money came to his hands, " equity, w^hich pursues truth, 
 will decree according to the justice and verity of the 
 fact" (c), and will hold that, under the circumstances, 
 seeing that it is an act which the very nature of his office 
 
 (0 Toionley v. Sherborne, 2 W. & T. L. C. 629. 
 
 (m) Cough V. Smith, W N. (1872), p. 18. 
 
 (x) See .s. 30, Companies Act, 1SG2 (25 & 26 Vict. c. 89), and the 
 Acts or charters of all the great companies. But the court may inter- 
 fere in case of necessity {Bradford Bank v. Brujfjs, 12 App. Cas. 27 ; 
 Binney v. Ince Hall Co., 35 L J. Ch. 363). As to when the court will 
 order dividends to he paid to one of several trustees, cf. lie Pryor, 
 35 L. 'J\ 202 ; and lie Carr, Carr v. Carr, 36 W. R. 688. 
 
 (y) Brirc. v. Sloka-s, 2 Wh. & Tu. 633 ; Townley v. Sherborne, 2 ib. 629 ; 
 Be Ft-ycr, 3 K. & .1. 317. 
 
 (-;) Fc.lloiCH V. Milrht/l, 1 P. W. 81 ; Re Fryer, .ttipra. 
 
 {a) Lew. 233. See Fx parte Belrhier, xupra ; Walker v. Symond.'i, 
 3 Sw. 63 ; Lee v. Snnkey, 15 Ei\. 204 ; Be Flou-er and Metropolitan 
 Board, 27 Ch. I). 592. 
 
 (b) Not HO since the r('(jime of the .Iu<li("ituic Acts. 
 
 (c) iSco ^cr Lord IIknlky, Harden v. j'ar.sovtf, 1 Eden, 147.
 
 TEUSTEES TO ACT JOINTLY "WHERE MORE THAN ONE. 237 
 
 will not permit him to decline (d), it does not amount to an Art. 43. 
 admission that he actually received the money. 
 
 6. Even where a trustee may safely permit his co-trustee Must not 
 
 to receive trust moneys, he will, nevertheless, be liable if he P^™it ^o- 
 •1 p ■ -I ^ trustee to 
 
 permit him to retain them lor a longer period than the retain trust 
 
 circumstances of the case necessitate (e). Thus, in money. 
 Walker Y. Symonds (/), D., one of three trustees, received 
 part of the trust money, and, with the assent of the other 
 trustees, invested it in East India Company's bills, payable 
 to him. These were paid off, and thereupon S., another of 
 the trustees, wrote to D., requesting him to invest the 
 money. D., however, begged that it might remain in his 
 hands on mortgage. The other trustees assented to this. 
 The mortgage was never, in fact, prepared, although S. 
 made frequent applications to D., who finally died insolvent 
 five years after first receiving the money. Upon this state 
 of facts it was held that the trustees were guilty of a breach 
 of trust in permitting the money to remain on bills payable 
 to D. alone, and in leaving the state of the funds unascer- 
 tained for five years. 
 
 7. For like reasons, trustees, in whose names trust moneys Must not 
 are banked, should not authorise the bankers to pay cheques P^i"'"!*' *;0' 
 signed by one only of their number ; for that would be sign cheques 
 equivalent to giving the sole control of the trust funds to one 
 trustee, whereas the beneficiaries are entitled to the safeguard 
 
 of the trustees' joint control [g). A trustee may, however, 
 entrust his co-trustee with a crossed cheque, signed by both 
 of them, for delivery to the beneficiary (li). 
 
 8. On the ground of necessity, trustees may allow the May allow 
 
 custody of title deeds to remain with one of their number ; ^^'•^® deeds 
 "^ to reniani 
 
 ill custody of 
 
 (d) Lew. 233. As to executors' receipts, see Wesley v. Clarke, lEden, co-trustee. 
 357 ; Joy v. Campbell, 1 Sch. & L. 341 ; Langfordv. Gascoigne, 11 Ves. 
 
 333, and Lord Hinchinhrook v. Shipbrook, 16 ib. 477. 
 
 (e) Brice v. Stokes, supra ; Thompson v. Finch, 8 D. M. & G. 560 ; 
 Walker v. Symonds, 3 Sw. 1 ; Hanbury v. Kirkland, 3 Sim. 265 ; 
 Styles V. Guy, 1 M. & G. 422; Egbert v. Butler, 21 Beav. 560; 
 Rodbard v. Cooke, 25 W. R. 555. 
 
 (/) Supra ; and see also Lewis v. Nobbs, 8 Ch. D. 591 ; Consterdiney. 
 Consterdine, 31 Beav. 330 ; and Carruthers v. Carruthers, [1896] A. C. 659. 
 (g) Cloughv. Bond, 3 My. & Cr. 490 ; Trutch v. Lamprell, 20 Beav. 116. 
 (h) Barnard v. Bagshawe, 3 D. J. & S. 355.
 
 238 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 43. for any other rule would be productive of the greatest incon- 
 venience (/). But it seems that the rule is different with 
 regard to bonds payable to bearer {k). 
 
 Must be joint 9. Apart from other reasons, the trust money cannot be 
 mortgagees, advanced to one of the trustees on mortgage, however good 
 the security may seem : for he cannot act both as mortgagor 
 and mortgagee ; and without his joinder in the latter capa- 
 city, his co-trustees cannot legally act (/). 
 
 Art. 44. — Dutij of Trustee not to set u'p 
 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 heneficiary (}n). But 
 (semble) he may decline to execute the trust, if 
 he receives information making it doubtful 
 whether he ought to execute it ; and he has a 
 right to have the direction of the court on the 
 subject (?0- 
 
 Illustrations. 
 
 Chapel trus- 1. In Ncicsome v. Flotvers, sujn-a, a chapel was vested in 
 tees joining trustees, in trust for Particular Baptists. Subsequently a 
 schism took place, and part of the congregation seceded, 
 and went to another chapel. Still later, the surviving 
 trustees were induced (not knowing the real object) to 
 appoint new trustees, and vest the property in them. 
 Immediately afterwards, the new trustees — who were in 
 
 {i) Per Wood, V.-C, Cot tarn v. Etv^t Coast linil. Co., 1 J. & H. 243. 
 (k) Lewit V. Nohhs, 8 Ch. D. 595 ; and see Illustration 13, p. 'J32, 
 
 (/) Sdchiey v. Sewcll, 1 My. & Cr. 8 ; Frnvcii v. Francii<, 5 Dc G. 
 M. & (). 108'; Fletcher v. Green, 33 Bcav. 42G. 
 
 (to) New-iome v. Flowerx, .30 Beav. 461. 
 
 /?() Neule V. DavU, 5 1). M. & (i. 258 ; per WoOD, V.-C, and 
 TuKNKii, L..1. (KNi(iMT-HHr<'i:, L..I., (lixsoitieiUe).
 
 DUTY OF TRUSTEE NOT TO SET UP JUS TERTII. 239' 
 
 fact attached to the seceding congregation— brought an Art. 44. 
 action to obtain possession of the chapel. Their appoint- 
 ment 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. 
 
 2. Nor, however honestly trustees may believe that the -^lust not 
 trust property belongs of right to a third party, are they ^^^i^ ^f ^i^^^^. 
 justified in refusing to perform the trust they have once beneficiaries- 
 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 (o). 
 
 3. Where, however, trustees have received notice of a They may 
 paramount claim, and of the intention of the notifying ^^^^'^^^l" 
 party to hold them responsible if they deal with the fund in relieve them 
 a manner contrary to such paramount claim, it is not yet "^ *^^^ tmst. 
 authoritatively settled whether, in face of such notice, the 
 trustees are bound to go on steadily in executing the trust 
 
 which they have undertaken, or whether they can apply to 
 the court for relief. In Neale v. Davis (jj), it was held by 
 Wood, V.-C, and Turner, L.J. (Knight-Bruce, L.J., 
 dissenticntc) , 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. Lord Justice Knight- 
 Bruce, however, energetically dissented, 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 cestuis que trusts they would make themselves 
 personally liable to the adverse claimant in the event of his 
 being successful, they were and are bound to perform the 
 trust which they undertook" {q). The doctrine as enun- 
 ciated in the rule, however, is, it is apprehended, correct, 
 and is certainly in accordance with modern practice, and is 
 probably justified by Order 55, r. 3 (g), of the Eules of 
 
 (o) Beddoes v. Pugh. 26 Beav. 407 ; Lew. 253. 
 
 (p) 5 D. M. & G. 258. 
 
 (q) Xetcle v. Davis, supra; see also Neligan x. Eoche, Ir. Reps., 
 7 Eq. 332 ; Hurst v. Hurst, 9 Ch. App. 762 ; and as to agents, 
 Nicholson v. Knoivles, 5 Madd. 47.
 
 240 THE ADMINISTEATION OF A TRUST. 
 
 Art. 44. the Supreme Court. It must be borne in mind that where 
 there is an adverse claim, of the vaUdity of which the trustee 
 is ignorant, he may safely execute the trust (r). 
 
 Aet. 4-5. — Duty of Trustee to act gratuitously. 
 
 A trustee has no right to charge for his time 
 and trouble (s) except : — 
 
 (a) where the settlement provides for it (t) ; 
 
 (b) where he has, at the time of accepting 
 
 the trust, expressly stipulated for re- 
 muneration («), and the beneliciaries 
 have freely and without unfair pressure 
 assented to such stipulation (x) ; 
 
 (c) where the trust is before the court, and 
 
 the trustee has, before accepting the 
 trust, expressly stipulated for remunera- 
 tion (?/) ; 
 
 (d) where one who is not an express trustee 
 
 has properly traded with another's 
 money under circumstances which make 
 him a constructive trustee of the 
 profits (z) ; 
 
 (/•) Jtf.ddocs V. PiKjh, siipni. 
 
 (.s) JiohiiiHOU V. J'cM, 2 Wh. & Tu. 606. By a recent Act of the 
 Canadian Parliament, tru.stees in the Duminion arc autliorised to retain 
 a commission. 
 
 (0 RohhiKon V. Pdt, ^iiprd : [VrJih v. E<trl of Sluift< shury, 7 Vcs. 480; 
 WUUh v. Kih},k, 1 ]{eav. .').^,9. 
 
 (n) Rk Shi'.rwood, li licav. 8:W ; Donijldx v. Arrhhul, 2 U. & J. 148. 
 
 (a;) Ay/ijp'. v. Miirniy, 2 Atk. ')H. 
 
 ()/) JiurrM V. Hartley, VI Jur. (n.s.) 426 ; Moon- v. Froud, 3 My. & 
 Cr." 48. 
 
 (z) liro'ini V. ]/illoii. 1 T. W. 140.
 
 DUTY OF TRUSTEE TO ACT GRATUITOUSLY. 241 
 
 (e) where the trust property is abroad, and Art^5. 
 it is the custom of the local courts to 
 allow remuneration (a). 
 
 Illustrations. 
 
 1. Thus, a trustee who is a sohcitor will not be allowed Sohcitor- 
 to charge for his time and trouble, nor for his professional „^^jg^; ^q^^ 
 attendance ; for, as was somewhat dryly said by Lord generally 
 Lyndhurst, in Netu v. Jones {b), " A trustee placed in the ^ ^^^^' 
 position of a solicitor might, if allowed to perform the duties 
 
 of a solicitor, and to be paid for them, find it very often 
 proper to institute and carry on legal proceedings which he 
 would not do if he were to derive no emolument from them 
 himself, and if he were to employ another person." The 
 incapacity not only applies to the solicitor-trustee personally, 
 but also to his firm, who cannot, by acting as his solicitors, 
 charge profit costs, either in an action, or for preparing 
 leases and the like on behalf of the trust estate (c). 
 
 2. But if the settlement provides that the trustee may AHter if 
 charge, he will be allowed to do so, although his charges bvVh"settle 
 will be strictly limited to those indicated by the settlor, ment. 
 Thus, if a solicitor-trustee is authorised to make professional 
 charges, he will not be allowed to charge for time and 
 
 trouble expended other than in his position as solicitor (d). 
 But, on the other hand, where a will authorises any trustee 
 thereof who may be a solicitor to make the usual pro- 
 fessional, or other -proper and reasonable charges, for all 
 business done and time expended in relation to the trusts 
 of the will, ivhether such business is usually toithin the 
 business of a solicitor or not, the taxing master has power to 
 allow to a trustee who is a solicitor, the proper charges for 
 business not strictly of a professional nature transacted by 
 him in relation to the trust estate (e), but not for work 
 altogether outside his professional avocations (/). And 
 
 (a) Chambers v. Goldwin, 9 Ves, 267. (h) 1 Mac. & G. 66S, n. 
 
 (c) Ee CorseUis, Laicton v. Elives, 34 Ch. D. 675. 
 
 {d) Harbin v. Darby, 28 Beav. 325 ; Re Chappie, Newton v. Chappie, 
 27 Ch. D. 584. 
 
 (e) Re Ames, Ames v. Taylor, 25 Ch. D. 72. 
 (/) Clarkson v. Robinson, [1900] 2 Ch. 722.
 
 242 
 
 THE ADMINISTEATION OF A TRUST. 
 
 Art. 45. 
 
 Exception 
 where soli- 
 citor acts 
 for self and 
 another. 
 
 Cannot 
 generally 
 flaini a 
 salar\-. 
 
 this holds good even where a legacy is given to the solicitor- 
 trustee conditionally upon his accepting the trust (g). How- 
 ever, in all such cases, the trustees cannot, in the absence 
 of special powers, settle the amount payable to the solicitor- 
 trustee so as to bind the beneficiaries, and the latter are 
 consequently entitled to have the solicitor's costs investi- 
 gated [g) ; and it is the duty of the solicitor-trustee to 
 inform them of their right to tax his bill (/?). 
 
 3. There is a curious exception to the rule that a solicitor- 
 trustee cannot, in the absence of an enabling clause, charge 
 profit costs. This exception (known as the rule in Cradock v. 
 Piper {i)) is, that "where there is work done in court, 
 not on behalf of the trustee who is a solicitor alone, but on 
 behalf of himself and a co-trustee, the ordinary principle 
 will not prevent the solicitor, or his firm, from receiving 
 the usual costs, if the costs of appearing for, or acting for, 
 the two, have not increased the expense ; that is to say, if 
 the trustee himself has not added to the expense which 
 would have been incurred if he or his firm had appeared 
 only for his co-trustee " (^•). The exception in Cradock v. 
 Piper is, however, limited to the costs incurred in respect 
 of business done in an action or matter, and does not apply 
 to business done out of court {k) ; and where a solicitor- 
 trustee is acting /o7" the trust estate, he will not be allowed 
 to make profit costs merely on the ground that a third 
 party {e.g., a lessee or mortgagor) has to repay the costs- 
 to the trust estate (/). 
 
 i. In general, a trustee, whether express or constructive, 
 will not be permitted to claim a salary or any remuneration 
 for managing a trade or business (m). Thus, in Barrett v. 
 Hartlci/ (n), where a trustee had carried on a business for 
 
 (V) y.v Fls/i, Ihnwtf V. BtnntU, [1893] 2 Ch. 413; and r/. 7?e Well- 
 horiH', (1!,()1] 1 Cli. 31-2. 
 „ (A) J!, W'rhh, Lamhtrt v. Still, [1894] 1 Ch. 73. 
 
 (i) 1 .M. &(;. 004. 
 
 (k) Pir CoT-ro.N, L..J., in Re. CorseJlls, Lawton v. Elives, 34 Ch. D. 675. 
 
 (/) J{i (JorncUix, Lawton v. Elnrs^ nupra ; but see and distinguish 
 Art. 4(5, I Must. 0, infra, p. 24G. 
 
 (m) Sloi-h II V. Dain.s^ G Ik-av. 371 ; Ihirdon v. Ihirdon, 1 V. & B. 
 17'l. Ill llic United States of America tliis rule is exactly reversed. 
 
 (ii) L. i'. 2 IO(j. 787. For a case ill %vliich, on tlie appointment of a 
 new trustee \ty tlie court, lie was authorised to retain a commission. 
 Hue Uii l-'niman, W. N. (1887), p. 21U.
 
 DUTY OP TRUSTEE TO ACT GRATUITOUSLY. 243 
 
 six years, in consequence whereof great advantage had Art. 45. 
 accrued to his beneficiaries, it was held that lie had no 
 right to exact or charge any remuneration or bonus in 
 respect of such services ; for his exertions were incident to 
 the performance of the duties imposed by the deed of trust 
 which he had accepted. 
 
 5. There is authority for saying that this does not apply P'-xception. 
 to one who rightfully becomes possessed of another's money 
 and rightfully trades with it ; and that he will be entitled 
 to a reasonable remuneration, although he is of course a 
 constructive trustee of the profits of the trade (o) . For 
 instance, in Broivn v. Litton (2)) the plaintiff's testator was 
 the captain of a ship, who, being on a voyage, had 800 
 dollars which he intended to invest in trade. The captain 
 died, and the defendant, who was the mate of the ship, 
 becoming captain in his place, took possession of these 
 800 dollars, and by judiciously trading with them made 
 considerable profits. Upon a bill being filed against him 
 for an account, the Lord Keeper Harcourt ordered that . 
 " To recompense him for his care in trading with it, the 
 master shall settle a proper salary for the pains and trouble 
 he has been at in the management thereof." 
 
 Aet. 46. — Dutij of Trustee not to traffic ivitli or 
 otherwise jivofit by Trust Property. 
 
 (1) A trustee must not use or deal with trust 
 property for his own private advantage {q). 
 
 (2) A trustee is absolutely incapacitated while 
 he remains a trustee from purchasing, leasing, 
 
 (o) Broicn v. Dt Tastet, Jac. 284; Wedderhurn v. Weddtrhurn, 
 •22 Beav. 84. 
 
 (p) IP. W. 140. 
 
 (g) Webb v. Earl of Shaftesbury, 7 Ves. 488 ; Ex parte Lacey, 6 Ves. 
 625 ; and see Re Imperial Land Co. of Marseilles, 4 Ch. D. 566 ; Aber- 
 deen Toion Council v. Aberdeen University, 2 App. Cas. 544; and 
 liochefoticaidd v. Boustead, [1898] 1 Ch. 550.
 
 244 THE ADMINISTRATION OF A TRUST. 
 
 Art. 46. or accepting a mortgage of trust property either 
 from himself (r) or his colleagues (s), however 
 fair the transaction may be (t), unless : — 
 
 (a) under an express power in the settlement; 
 
 or 
 
 (b) by leave of a competent court (u). 
 
 (3) A trustee may, however, purchase, or lease, 
 or accept a mortgage of trust property direct 
 from beneficiaries (x) ; but in that case, if the 
 transaction be impeached, it is incumbent on 
 the trustee to prove (?/) affirmatively and con- 
 clusively : — 
 
 (a) that he and the beneficiaries were at arm's 
 
 length, and that no confidence was 
 reposed in him ; 
 
 (b) that the transaction was for the advan- 
 
 tage of the beneficiaries ; and 
 
 (c) that full information was given to the 
 
 beneficiaries of the value of the property, 
 of the nature of their interest therein, 
 and of the circumstances of the trans- 
 action (z). 
 
 (r) Fox V. Mackrelh, 2 Wh. & Tu. 709. 
 
 (s) Ih. ; and Whichv.ole v. Lawrence, 3 Yes. 740, and Morse v. Royal, 
 12i7>. :i74. 
 
 (I) J'Jx jxirle Lacey, supra ; Ex parte Bennett, 10 Ves. 393 ; Gibson v. 
 Jcyr.^, VcH. 277. 
 
 (?<) Farmtr v. Deane, 32 Beav. 327 ; and see Tennant v. Trenchard, 
 4 Cli. A|»p. 547. 
 
 (x) (lil)Hon V. Jeyes, mipra ; Morse v. Royal, aupra ; Ex parte Lacey, 
 Hupra. 
 
 (j/) CaHCH in note (a;) ; and also Randall v. Errington, 10 Ves. 427; 
 CoicH V. Trc.roUiick, 9 ih. 247. 
 
 (z) Sec Chilliwjworlk v. Chambers, [1896] 1 Ch. 685.
 
 TEUSTEE NOT TO TRAFFIC WITH TRUST PROPERTY. 245 
 
 (4) A trustee cannot qualify himself to become Art. 46. 
 a purchaser by retiring from a trusteeship with 
 that view (a). 
 
 Illustrations of Paragraph (1). 
 
 1. Thus, a trustee must not actively import trust moneys Must not 
 into his trade or business, or use them in speculations of his trade with 
 own ; and if he does so (as has been said before) he will be 
 
 a constructive 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 (b). 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 (c). 
 
 2. On similar principles, a trustee of leaseholds cannot Must not 
 
 use his position for the purpose of getting a new lease S*^* ^®^^® ^ 
 
 T 1 • IP ■ • PI p 1-1 renewed to 
 
 granted to himself on the expiration of the term ot w^hich himself. 
 
 he is trustee (d). And this principle has been carried so 
 high, that where a trustee of a lease endeavoured fairly and 
 honestly to treat for a renewal on account of the bene- 
 ficiaries, and, the lessor positively refusing to grant a 
 renewal for their benefit, the trustee took the lease for 
 himself, it was held that even in such a case it was incum- 
 bent on the trustee to hold the renewed lease for the benefit 
 of the beneficiaries (e). 
 
 3. Where the solicitors in an administration action Commission 
 presented their client, the trustee, with half their profit P^^^^l^^ 
 
 trustee by 
 
 (a) Ex parte James, 8 Ves. 337 ; Spring v. Pride, 4 D. J. & S. 395. 
 
 (b) Infra, pp. 342 et seq. 
 
 (c) Vyse V. Foster, L. R. 7 H. L. 318. 
 
 \d) Sandford v. Keech, Sel. Ch. Ca. 61 ; Bennett v. Gaslight and Coke 
 Co., 52 L. J. Ch. 98 ; Re Lord Ranelagh, 26 Ch. D. 590 ; and Brinton v. 
 Lulhayn, 53 L. T. 9. 
 
 (e) Per Lord Eldox, in Ex parte James, 8 Ves. 337, at p. 345. The 
 recent case of Longton v. Wilsby, 76 L. T. 770, must, it is conceived, 
 be restricted to renewals by tenants for life, even if it be good law, and 
 cannot be extended to express trustees.
 
 •246 
 
 THE ADMIXISTEATION OF A TEUST. 
 
 Art. 46. 
 
 persons eic- 
 ploj'ed in 
 
 the trust 
 business. 
 
 Accretion 
 
 to trustee's 
 estate be- 
 longs to 
 trust. 
 
 Must not 
 sport over 
 trust estate. 
 
 Rule does 
 not applj' 
 to indirect 
 gains. 
 
 costs, Mr. Justice Xokth (while holding that in the 
 administration action he had no jurisdiction in the matter) 
 intimated that if a separate action were brought against the 
 trustee by the beneficiaries to make him hand over the sum 
 so received, he would have no defence (/). Of course, a 
 bribe paid to the trustee to induce him to lease or sell the 
 trust property, altogether invalidates the transaction (g). 
 
 i. Where trust moneys were lent on mortgage, and the 
 mortgagor being a person of eccentric character, devised 
 the equity of redemption to " the mortgagee," it was held, 
 that, although the mortgagor did not know that the mort- 
 gagee 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 (li). 
 
 5. Lord Eldox once directed an inquiry whether the 
 right of sporting over the trust property could be let for the 
 benefit of 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 establish- 
 ment of mere pleasure for his own enjoyment (z). 
 
 6. The inile does not, however, 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 fro7ii the latter for pre- 
 paring the security (k). Nevertheless, 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 enable 
 that beneficiary to repay a debt due from him to the trustee, 
 
 (/) lie Thorpe, Viponf v. liadcliffe, [1891] '2 Ch. 360; and see Re 
 Smith, Smith v. Thompson, [1896] 1 Ch. 71. For further examples of 
 profits mmle by fiduciary persons the reader is referred to pp. 71 tt .seq., 
 and pp. 12.J *t K'.q., fujirrt. 
 
 (,/) Chandler v. liradUy, [1897] 1 Ch. 315. 
 
 (h) Re Payne, KihUe v. Payix, o4 L. T. 840. 
 
 (i) H'<hh V. J-Jarl oj Shafteshnry, 7 Ves. 488. 
 
 (k) Whitney v. Smith, 4 Ch. App. 513 ; and see also Builer v. Butler, 
 7 Ch. D. 116. But cf. Re CorstUit, Laidon v. Elwe-s, 34 Ch. D. 675.
 
 TRUSTEE NOT TO TRAFFIC WITH TRUST PROPERTY. 247 
 
 was a breach of trust (/). But where there is no such Art. 46. 
 .stipulation it would be otherwise {m). 
 
 7. The rule does not apply where the trustee is also the Kule inap- 
 ultimate beneficiary subject to setting aside a specific sum ^ ^^^^ trustee 
 for another. For although in form a trustee, he is sub- is the bene- 
 stantially beneficial owner, subject to an equitable mortgage jiciary subject 
 for securing the specific sum in question (n). charge. 
 
 Illustrations of Parageaph (2). 
 
 1. Perhaps the most important branch of the subject is Purchases of 
 that relating to the purchase or lease by trustees of the trust *™^^ P^°' 
 property. With regard to such purchases from themselves trustees, 
 (as distinguished from purchases from their beneficiaries), 
 the doctrine stands much more upon general principle than 
 upon the circumstances of any individual case. It rests 
 upon this : that the purchase is not permitted in any case, 
 however honest the circumstances, the general interests of 
 justice requiring it to be destroyed in every instance, as no 
 court is equal to the examination and ascertainment of the 
 truth in much the greater number of cases (o). Conse- 
 quently, under no circumstances can an active trustee, nor, 
 indeed, a passive trustee ioho has been an active one, nor 
 even a person who has been erroneously treated by all 
 parties as a trustee (2^) ('^-e., a trustee de son tort), purchase 
 trust property from himself or his colleagues, either directly 
 or coUusively through the intervention of a third party [q). 
 Such a transaction is voidable at the instance of a bene- 
 ficiary ex debito justitice, and without proof of any injury or 
 loss, and the purchaser will also have to repay the rents but 
 without interest (r), a fact which ought to be borne in mind 
 by every trustee. Such a sale also affects all subsequent 
 
 {I) Molyneux v. Fletcher, [1898] 1 Q. B. 648. 
 
 (m) Butler v. Butler, supra. 
 
 (n) Re Cameron, Cameron v. Cameron, [1893] 3 Ch. 468. 
 
 (0) Per Lord Eldon in Ex parte James, 8 Ves. 337, at p. 345 ; and 
 see Beningfield v. Baxter, 12 App. Cas. 167. 
 
 (p) Plowright v. Lambert, 52 L. T. 646. As to executor, see Hall v. 
 Hallett, 1 Cox, 134. 
 
 [q] Campbell v. Waller, 5 Ves. 678 ; Knight v. Majoribanks, 2 M. & 
 ■G. 12. 
 
 (r) Silkstone, etc. Co. v. Edey, [1900] 1 Ch. 167.
 
 248 THE AD^IIXISTRATIOlS" OF A TRUST. 
 
 Art. 46. purchasers with notice, from the trustee (s) ; and, therefore,. 
 even if a trustee cares to risk such a purchase as between 
 himself and the beneficiaries, he should remember that it 
 practically precludes him from ever parting with the pro- 
 perty to a subsequent purchaser. However, this rule does 
 not prevent a trustee selling to a joint stock company in 
 which he is a mere shareholder as distinguished from a 
 " one man company " {t) ; for a sale by a person to a cor- 
 poration of which he is a member is not, either in form or 
 substance, a sale by him to himself and others. Neverthe- 
 less, in such a case, there is such a conflict of interest and 
 duty, that if the sale be impeached by the beneficiaries, the 
 onus will lie on the company to show affirmatively that the 
 trustee had taken all reasonable pains to secure a purchaser 
 at the best price, and that the price given by the company 
 was not inadequate at the time, although a better price 
 naight have been obtained by waiting («). It must also be 
 observed that the fact that a trustee has sold trust property 
 in the hope, subsequently realised, of being able to repur- 
 chase it for himself at a future time, is not of itself a 
 sufficient ground for setting aside the sale, where the price 
 was not inadequate at the time, and there was no agree- 
 ment or understanding existing at the time at the first sale 
 that the purchaser should sell or reconvey the property to 
 the trustee ; and the fact that the trustee many years after- 
 wards made a handsome profit by the property makes no 
 difference (v). However, in the case just cited, over twenty 
 years had elapsed without the sale being impeached, and 
 many of the parties were dead ; and, as the court said, the 
 presumption of law that a transaction was legal and honest 
 is a presumption that is strengthened by lapse of time. In 
 a recent case it has been held that a trustee cannot adopt 
 for his own benefit an executory contract to purchase from 
 himself as trustee (x). 
 
 (v) Ahtrdtan Toirii Cminril v. Aberdeen University, 2 App. Cas. 544 ; 
 CooLhou. v. Lee, 23 L. J. Cli. 473. 
 
 (/) SUkxIonc, (tr. Co. v. luhy, [lflf)0] 1 Ch. 167. 
 
 (n) Fnrrxr v. Farrur, Limittfl, 40 Cli. 1). 39."). 
 
 (r) AV I'oxthdhwaitc, Pnn/Zithirai/e v. Hickman, W, W . R. 200 ; and 
 8ce ul.so Dover v. linrk, .") (iill. .')7 ; and liaktr v. Peek, 9 W. R. 472. 
 
 (a:) WiUiaim v. Sroll, [1900] A. C. 499.
 
 TEUSTEE NOT TO TEAFFIC WITH TEUST PEOPEETY. 249' 
 
 2. An agent employed for the sale of an estate cannot Art. 46. 
 
 purchase it for hhnself or another [y], for he is a constructive „ , 
 
 trustee {z). applies to 
 
 agents. 
 
 3. So trustees cannot lease or mortgage the trust estate Cannot lease 
 to one of themselves, and if they do so the lessee v^ill have "^ ™i°^gfff^*^ 
 to account for the profits (a). 
 
 4. But where there are infant beneficiaries or beneficiaries Purchase by 
 not in esse, the court will, on the application of the trustee, j™^,**^®A^ 
 allow him to purchase, if it can see that, under the circum- court. 
 stances, it is clearly for the benefit of the beneficiaries, but 
 
 not otherwise (6). The best course of procedure in such an 
 application is to issue a summons under E. S. C. 1883, 
 Order LV., r. 3, asking for an inquiry whether it is for 
 the benefit of the infant beneficiaries that the trustee 
 should be permitted to purchase for a certain sum. If the 
 master certifies that it is, the order will be made as a 
 matter of course. In one case in which the present writer 
 was counsel (c), Mr. Justice Peabson ordered the costs of the 
 action to be paid out of the trust estate, on the ground that 
 it was for the infant's benefit, the trustee offering more than 
 the market price ; and it is conceived that the course 
 followed by his lordship was correct. 
 
 5. The rule as to selling to himself only applies where the Rule inap- 
 express or constructive trustee is substantially an active P^^'^^,^^"^^^ 
 trustee ; for where he is the mere depository of the legal 
 
 estate without any duties, and without ever having had any, 
 he may be a purchaser ; for instance, where he is a trustee 
 to preserve contingent remainders (t?), or a person nominated 
 trustee but has disclaimed (e). But one who was originally 
 an executive trustee, and has become a mere bare trustee by 
 
 (y) Ex parte Bennett, 10 Ves. 381. 
 
 (2) Re Boi/le, 1 M. & G. 495 ; De Bussche v. Alt, 8 Ch. D. 287. 
 
 (a) Ex parte Hughes, 6 Ves. 617 ; Stickney v. Sewell, 1 My. & Cr. 8 ; 
 Francis v. Francis, 5 D. M. & G. 108. 
 
 (b) Farmer v. Deane, 32 Beav. 327 ; Campell v. Walker, 5 Ves. 681. 
 (g) Nunneleij v. Nunneley, April 18tli, 1883. 
 
 (rf) Sutton V. Jones, 15 Ves. 587 ; Pooley v. Quilter, 4 Drew. 189. 
 (e) Stacey v. Elph, 1 M. & K. 195.
 
 ^50 
 
 THE ADMINISTEATION OF A TRUST. 
 
 Art. 46. performance of the trusts, would, it is apprehended, be 
 disquahfied ; for he would have had an opportunity 
 of becoming acquainted with the property and its 
 value (/). 
 
 May purchase 
 from bene- 
 ficiary. 
 
 Whether 
 trustee of 
 share of 
 proceeds can 
 purchase. 
 
 Illustkations of Paeagkaph (3). 
 
 1. But although a trustee is incapable of purchasing from 
 himself or his colleagues, there is no fixed and arbitrary 
 rule that the trustee can, under no circumstances, purchase 
 the interests of his beneficiaries from the beneficiaries 
 themselves. Yet even in such cases the court regards such 
 purchases 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 cestuis que trusts, and that the trustee 
 candidly disclosed all facts known to him which could in 
 any way influence the vendors (g). 
 
 2. In reference to sales by the beneficiaries, the trans- 
 action was upheld where 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 for 
 sale (h). 
 
 3. A question sometimes arises in practice, whether, on a 
 sale by trustees, the property can be purchased beneficially 
 by a person who is a trustee of a subsidiary settlement by 
 which a share in the proceeds of the sale is settled. 
 Curiously enough, this point seems never to have been 
 decided ; but it is submitted that such a purchase might be 
 impeached. For it is the duty of the subsidiary trustee to 
 watch over the interests of his beneficiaries. It is obviously 
 to their interest that the sale shall realise a high price, 
 whereas it is the interest of a purchaser that it shall be sold 
 cheap. By becoming a purchaser, therefoi-e, the subsidiary 
 trustee is acting in a character wliolly inconsistent with his 
 
 (/) Ex parte Benndl, 10 Ves. 381. 
 
 ((/) William-H v. Scott, [lOOOJ A. C. 499. 
 
 (A) Cokf V, Trecothick,^ Ves. 234 ; and Clark v. Simile,2 Eden, 134.
 
 TRUSTEE NOT TO TRAFFIC WITH TRUST PROPERTY. 251 
 
 fiduciary duty, and little doubt is entertained that, if the Art. 46. 
 sale were impeached by his cestuis que trusts, the onus 
 would be cast on him of proving his complete bona fides, 
 and that he gave an adequate price. 
 
 4. Although a trustee cannot purchase from himself, it Trustee of 
 has been held that the rule does not preclude the trustees settlement 
 ■of his marriage settlement from purchasing the property (i). not debarred 
 
 from pur- 
 
 1 p • c 1 • 1 f • chasing. 
 
 5. A trustee may take a fair mortgage from his beneficiary ; , , ^ , 
 
 T • 1 1 • ■ r. 1 1 1 J^Iortgage by 
 
 and, m that case, may rely on his possession of the legal beneficiary 
 
 ■estate, as giving him priority over prior mortgagees of to trustee. 
 
 whose claims he had no notice when he made the 
 
 advance (k). 
 
 6. So, where a client was very desirous of selling pro- Purchase by 
 perty, and, after vainly endeavouring to do so, finally sold ^^1^^^^^°^ " 
 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 under- 
 stood his position, it was held that such a sale was good 
 and binding, although it lay upon the solicitor to prove that 
 it was unimpeachable (/). A solicitor purchasing from his 
 client should always make him employ a separate solici- 
 tor (m). The rule equally applies where the solicitor 
 purchases, not directly from the client, but from the 
 latter's trustee in bankruptcy {n). 
 
 7. The rule applies even where the party from whom Purchase 
 advice is sought is not a professional adviser ; for the fact Qg^^^py^j" a, 
 that he accepts the position of adviser places him in a position of 
 fiduciary position towards the party seeking advice (o). confidence 
 
 /endor. 
 
 (i) Hichhy v. Hichley, 2 Ch. D. 190. 
 
 {k) Newman v. Newman, 28 Ch. D. 674. 
 
 \l) Spencer v. Topham, 22 Beav. 573; 2 Jur. (n.s.) 865; Gibson v. 
 Jeyes, 6 Ves. 278 ; Johnnon v. Fesemayer, .3 D. & J. 13; Edwards v. 
 Merrick, 2 Hare, 60. 
 
 (m) Cockburn v. Edwards, 18 Ch. D. 455. 
 
 {n) Luddi/'s Trustee v. Peard, 33 Ch. D. 500 ; and see also Barron v. 
 Willis, [1900] 2 Ch. 121. 
 
 (o) Tate V. Williamson, 2 Ch. App. 55.
 
 constructive 
 trustees 
 
 252 THE ADMINISTRATION OF A TRUST. 
 
 Art. 46. 8. The rule as to the extreme fairness to be observed in 
 
 ~ purchasing from cestuis que trusts does not apply to persons 
 not apply '^^o are only constructive trustees by virtue of some business 
 to certain contract entered into with the so-called cestuis que trusts. 
 Thus mortgagees can freely purchase from their mort- 
 gagors [p), partners from the representatives of a deceased 
 partner [q), 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 by the contract. They are trus- 
 tees only to the extent of their obligation to perform that 
 contract, and the trust is limited to the discharge of that 
 obligation (?•). 
 
 Abt. 47. — Duty of Trustee to he ready ivitli his 
 Accounts. 
 
 (1) A trustee must : — 
 
 (a) keep clear and accurate accounts of the 
 
 trust property (s) ; and 
 
 (b) at all reasonable times, at the request of 
 
 a beneficiary, give him full and 
 accurate information as to the amount 
 and state of the trust property {t), and 
 permit him or his solicitor {u) to inspect 
 the accounts and vouchers, and other 
 documents relating to the trust {x). 
 
 ( p) Kvtght V. Majorihaid-s, 2 M. & G. 10. 
 
 Iq) Chamhtrs v. Jlou'dl, 1 1 Beav. 6. 
 
 (r) iSee 7»er WESTinrKV, L.C., in Knox v. Gyc, L. R. 5 H. L. 675; 
 but sec per Jksskl, M.R., K<imnvt (E(trl) v. Smith, 6 Ch. D. 469; and 
 BeJjt7nnnn v. lietjamnin, [ISt).")) 2 Cb. 474. 
 
 (h) SpriiKjcAt V. Dash mood, 2 ({ill'. 521 ; Burrown v. Wcdh, 5 D. M. & 
 G. 2.''):i ; Ncwlon v. Askew, 11 Bcav. 145, 152; Pearse v. Green, 1 J. & 
 W. 140. 
 
 (t) Re Tillolt, Lee v. Wihov, [1892] 1 CIi. 86; Re Page, Jones v. 
 Morijan, [1893] 1 Ch. .S04, :{()9 ; raU,ol v. Marshjield, 3 Ch. App. 622; 
 Ryder v. Birkcrlon, 3 S\v. 81. 
 
 (u) Kemp V. Jinrn, 4 (iill'. 348. 
 
 (x) Coioin V. Graven, 34 W. R. 735 ; Olllcy v. Gilhy, 8 Bcav. 602.
 
 TBUSTEE TO BE KEADY WITH HIS ACCOUNTS. 253 
 
 (2) A trustee is, nevertheless, not bound to Art^7. 
 supply copies of accounts or trust documents (?/), 
 or to supply information which necessitates 
 expenditure (z), except at the cost of the bene- 
 ficiary requiring the same. 
 
 Illustrations of Paragraph (1), 
 
 1. The estate of a testator, who died in 1832, was distri- Failure to 
 buted in 1847, as the evidence showed, at the written g^^'j^^g^' 
 request of the persons beneficially entitled. Another part 
 of the estate, which fell 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 filed in 1872 by one of the 
 beneficiaries against the surviving trustee for administration, 
 was dismissed ; but 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 (a). If, how- 
 ever, the action had been successful, the trustee would in 
 all probability have had to pay the plaintiff's costs as 
 well (6) up to the hearing (c). But, as the reason of this is 
 that such costs are caused by the trustees' neglect to keep 
 and furnish accounts, the plaintiff 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 which time, if the accounts are substan- 
 tially accurate, the trustee will be entitled to his costs out 
 of the estate (d), or, if the plaintiff sues alone, out of his 
 share in the estate (e). 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 (/). However, where trustees 
 
 (y) Ottley v. Gilby, supra. 
 
 {z) Re Bosworth, Martin v. Lamhe, 58 L. J. Ch. 432. 
 (a) Payne v. Evens, 18 Eq. 356 ; and see to same effect. Re Page, 
 Jones V. Morgan, [1893] 1 C)i. 304. 
 
 [h) Eglin v. Sanderson., 3 Giff. 434 ; Newton v. Aslcew, 11 Beav. 145. 
 {(•) Springett v. Dashwood, 2 Giif. 521. 
 
 (d) Ottley V. Gilby, 8 Beav. 602. 
 
 (e) Thompson v. Clive, 11 Beav. 475. 
 (/) Wroe V. Seed, 4 Giff. 425, 429.
 
 254 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 47. 
 
 Inaccurate 
 accoiints. 
 
 Supph'ing 
 information. 
 
 have rendered no account, or an insufficient one, the court 
 now frequently orders the appHcation for an account to 
 stand over, in order that a proper account may be rendered 
 and vouched out of court, the costs being reserved (g). And 
 if the plaintiff has been over hasty in seeking the assistance 
 of the court, he may have to pay the costs, or even his 
 solicitor may be ordered to bear them personally (/t). 
 
 2. The importance of keeping accounts is shown by the 
 fact, that although the court will generally saddle with costs 
 a 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, and show an 
 erroneous balance in the trustee's favour, he will be allowed 
 his costs, for he will not have been guilty of any breach of 
 duty, but only of a bond fide mistake (i). 
 
 3. "A trustee is bound to give his cestui que trust proper 
 information as to the investment of the trust estate (h) ; and 
 where the trust estate is invested on mortgage, it is not 
 sufficient for the trustee merely to say, ' I have invested 
 the trust money on mortgage,' but he must produce the 
 mortgage deeds, so that the cestui que trust may thereby 
 ascertain that the trustee's statement is correct, and that 
 the trust estate is so invested. . . . Where a portion 
 of the trust estate is invested in consols, it is not sufficient 
 for the trustee to say that it is so invested, but his cestui 
 que trust is entitled to an authority from the trustee to 
 enable him to make proper application to the hank in order 
 that he may verify the trustee's own statement ; there may 
 be stock standing in the name of a person who admits he is 
 a trustee of it, which at the same time is incumbered ; 
 some other person having a paramount title may have 
 obtained a charging order on the stock, or placed a dis- 
 tringas upon it" (Jc). At the same time, although it is the 
 duty of a trustee to give all his beneliciarics, on demand, 
 information with respect to the mode in which the trust 
 
 (7) .Soc lt< lhii,t.r, \V1 VV. H. 6, (ind IIi//inrdv. Fa/ford, 4Cli. D. 389. 
 (h) /{e Diirtwill, Sain/rr v. (loildard, [1895] 1 Ch. 474. 
 (i) Smith V. (Jnnirr, 24 VV. K. rA. 
 
 (Ic) J'<r ClllTTY, J., in J{e TUIoK, Lee v. Wilwu, [1892] 1 Ch., at 
 p. 88.
 
 TRUSTEE TO BE READY WITH HIS ACCOUNTS. 255 
 
 fund has been dealt with, and where it is, yet it is no part Art. 47. 
 of the duty of a trustee to tell his cestui que trust what 
 incumbrances the latter has created, nor which of his 
 incumbrancers have given notice of their respective charges. 
 It is no part of the duty of a trustee to assist his cestui que 
 trust in selling or mortgaging his beneficial interest, and in 
 squandering or anticipating his fortune ; and it is clear that 
 a person who proposes to buy or lend money on it, has no 
 greater rights than the cestui que trust himself {I). If, 
 however, the trustee has notice of an incumbrance, and 
 represents to a proposed purchaser or mortgagee that he has 
 no such notice, he will be liable {m). 
 
 Illusteation of Parageaph (2). 
 
 As above stated a beneficiary is entitled, either per- Expensive 
 sonally or by his solicitor, to insi^ect the trust accounts and 
 documents, but if he requires a copy of an accou.nt or 
 document, he must pay the necessary expense himself ; for 
 it is not fair that it should be saddled on the trust estate, 
 nor of course can the trustee be expected to incur the 
 expense personally («). On the same ground, where a 
 beneficiary demands information as to his rights under the 
 settlement which cannot be furnished by the trustee without 
 the assistance of a solicitor, the trustee is not bound to 
 incur that expense (or if he be himself a solicitor with power 
 to charge, he is not bound to incur the loss of time), unless 
 the beneficiary is willing to pay the costs of complying with 
 his requisition (o). 
 
 (I) Low V. Bouverie, [1891] 3 Ch., at p. 99. 
 
 (m) Burroines v. Lock, 10 Ves. 470. 
 
 {n) Otthy V. Gilhy, 8 Beav. 602. 
 
 (o) Re Bomoorth, Martin v. Lambe, 58 L. J. Ch. 432.
 
 ( 256 ) 
 
 CHAPTEE IV. 
 
 THE POWERS OF THE TRUSTEE (a). 
 
 ART. PAGE 
 
 48. — General Powers of Trustees ----.. 256 
 
 49. — Poiver of Trustees m relation to the conduct of Sales - - 264 
 
 50. — Power of Trtistees to give Beceipts 266 
 
 51. — Poiver to compound and to settle Disputes - - . - 267 
 
 52. — Power to alloiv Maintenance to Infants . - - - 269 
 
 53. — Poiver of Trustees to pay to Attorney appointed by Beneficiary 271 
 54. — Suspension of the Trustee's Powers by Administration 
 
 Action ------..- 272 
 
 Aet. 48. — General Poivers of Trustees. 
 
 (1) A trustee may — 
 
 (a) exercise all powers expressly (b) con- 
 
 fided to him by the settlement ; and 
 
 (b) subject to any restrictions contained in 
 
 the settlement, and to the provisions 
 of any statute requiring the consent of 
 the court, may do such reasonable and 
 proper acts for the realisation or pro- 
 tection of the trust property (c), or the 
 
 {a) I have excluded from this chaptei- any reference to the powers of 
 nianiigiiig infants' estates conferred by s. 42 of the Conveyancing and 
 Law of Property Act, 1881, and also the powers conferred by the 
 Settled Land Act on " trustees for ])urj)Oses of that Act," because the 
 trustees referred to in tiiose cuacliucnts are not ordinary trustees, but 
 rather guardians, or mere donees of powers. 
 
 (/;) ff'i.shoruc. V. (lishorne, 2 App. Cas. 300 ; Austin v. Austin, 
 4 (Jh. IX 2:};} ; Tabor V. lirooks, 10 Ch. 1). 27."? ; He Blake, Jones v. Blake, 
 2\i Ch. !>. 9i;i; Lord ilainxborouijh v. Watcombc Terra Cotta Co., 
 rA L. J. Ch. 901. 
 
 (r) Ward V. Ward, 2 H. L. Cas. 784 ; Waldo v. IValdo, 7 Sim. 261 ; 
 liriijhl. v. North, 2 I'll. 220; Jiowes v. East London Water Co., Jac. 
 .324. 
 
 I
 
 GENERAL POWERS OF TRUSTEES. 257 
 
 protection, support or reputation of a Art. 48. 
 beneficiary who is incapable of taking 
 care of himself (d) as the court would 
 sanction if applied to (e). 
 
 (2) Provided, that he acts honestly (/), and 
 does not benefit one beneficiary at the expense of 
 another (g), and does not interfere with any legal 
 beneficial interest. 
 
 Illustrations of Paeageaph (1). 
 
 1. The leading case of Gishorncv. Gishorne (h), is the best Discretionary 
 -example of the right of trustees to exercise a discretion Powers, 
 •expressly given to them by the settlement. There a testator 
 devised his real and personal estate to trustees upon various 
 trusts, one of v^hich v^as, that " my said trustees, in their 
 -discretion and of their uncontrollable authority, pay and 
 apply the whole, or such i^ortion 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 wife." The wife also 
 had property 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, bond 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 proposed 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 
 
 [d) Sisson v. Sliaiv, 9 Ves. 288 ; Maherhj v. Turton, 14 Ves. 499 ; 
 Cotham v. West, 1 Beav. 381 ; Ex parte Green, 1 J. & W. 253 ; Re 
 Howarth, 8 Ch. App. 415 ; De Witte v. Palin, 14 Eq. 251 ; Swinnoch v. 
 De Crispe, Free. 78. 
 
 (e) Lee v. Brown,, 4 Ves. 369 ; Inioood v. Twyne, 2 Eden, 153 ; Sea- 
 gram v. Knight, 2'Ch. App. 630 ; Brown v. Smith, W. N. (1878), p. 202. 
 
 (/) See Re Smith, W. N. (1895), 142. 
 
 (g) Seagram v. Knight, supra ; Lee v. Brown, supra ; Wood v. 
 Patteson, 10 Beav. 544. 
 
 (h) 2 App. Cas. 300 ; and see also Costabadie v. Costabadie, 6 Hare, 
 410.
 
 258 
 Art. 48. 
 
 Discretion 
 sometimes 
 limited to 
 time and 
 manner. 
 
 Powers in 
 the nature 
 of trusts. 
 
 THE ADMINISTEATION OF A TRUST. 
 
 exercised that discretion bond 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 {i). So, 
 too, where absolute discretion has been given to trustees 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 (k). 
 
 2. The practitioner must, however, carefully scrutinize 
 the words conferring the authority and discretion, and must 
 not assume that a discretion as to the mode of applying a, 
 fund for a person's benefit, gives trustees a discretion as to 
 hoio much of the fund is to be so applied. Thus, in Be 
 Weaver (I) 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 discre- 
 tion as to the time and manner of the application. 
 
 3. A careful distinction must also be made between true 
 discretionary powers and powers which, although discre- 
 tionary in form, are really coupled with a duty. For 
 instance, where a testator devises real estates to trus- 
 tees, in trust to manage them during the minority of an 
 infant, with power to lease in their disci'etion, the trustees- 
 will not be allowed to decline to exercise the power of 
 letting. For, as Bowen, L.J., said in Be Gottrtier, Coles v. 
 Courtier (m), " one can understand that, where the 
 
 (i) See also Tahor v. Brooks, 10 Ch. 1). 273 ; 7?e LoftJionse, 29 Ch. D. 
 921 ; lie Conr/kr, Coles v. Courtier, 34 Ch. D. 13G ; and as to discre- 
 tioiiaiy trust for maintenance, Re Bryant, Bri/niit v. //?rWei/, [1894] 
 1 Ch. 324. No discretionary powers ran be exercised after the trustees 
 have paid the trust fund into court (AV Mvr),hy, \ UKHI] 1 Ir. R. 145). 
 
 (k) Tc.mpent v. Lord Cumoyn, 21 Ch. 1). ij/l ; Marquis of Cavidcn v. 
 Murray, 16 Ch. D. 161 ; Be^ Blake, Jones v. Blake, 29 Ch. D. 913 ; Be 
 Courtier, Coles v. Courtier, nvpra ; aiul Be Burrage, Bnrrage v. 
 Buruimiliam, (i2 L. T. 752. 
 
 (/) 21 (Jli, I). 01 ,5. .See also similar distinctions as to time and mode 
 (;f Hah;, /iV, Atkius, Neifnitin v. Siiirhiir, 81 L. T. 421. 
 
 {in) 34 Ch. D. 136. Sco also Be Hill, Hill v. Pilchcr, [1896] 1 Ch. 962,
 
 GENERAL POWERS OF TRUSTEES. 259 
 
 machinery for management of the estates is given to the Art. 48. 
 trustees, and the court undertakes to enforce the trusts for 
 management, it is right for it to compel the trustees to 
 utihze 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 make 
 the language bend to the implied intention, and order the 
 trustees to exercise the power (n). 
 
 4. With regard to the principles enunciated in sub- Implied 
 clause (b) (in relation to the unexpressed authority of a ^JJJ^^^g "^^^^^ 
 trustee), the case of Ward v. Ward (o) may be cited. There, 
 
 by the immediate 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 the debtor for payment 
 of the money by instalments ; and it was held that he was 
 justified in taking that course, because he had exercised 
 a sound discretion, and such as the court would have 
 approved. But no practitioner should venture to advise a 
 trustee to take upon himself the risk of adopting such 
 a course. In all such cases a trustee should apply for the 
 sanction of the court, under the provisions of Order LV., 
 r. 3. 
 
 5. So, again, as was said by Lord Cottenham in Power to do 
 Bright v. North {p), "Every trustee is entitled to be ||^|,^"|q^^^^^^ 
 allowed the reasonable and proper expenses incurred in protecting 
 protecting property 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 
 
 (n) Tempest v. Lord Camoys, 21 Ch. D. 576, note ; Nickisson v. 
 Cockhil/, 3 D. & S. 622. 
 (o) 2 H. L. Cas. 784. 
 (p) 2 Ph. 220 ; and see Stott v. Milne, 25 Ch. D. 710. 
 
 s 2
 
 260 THE ADMINISTEATION OF A TRUST. 
 
 Art. 48. works if passed. Here again, however, trustees should 
 always be advised to obtain the sanction of the court before 
 incurring such serious expense, under s. 36 of the Settled 
 Land Act, 1882 (45 & 46 Vict. c. 38). 
 
 Power to 6. On the same grounds, a trustee whose duty it is to 
 
 sarv steps" keep property, forming part of the trust estate, in repair, 
 
 for^eeping may, it would seem, retain income for that purpose, but 
 
 property m -without prejudice to the ultimate rights of the tenant for 
 repair. -"^ ■* . . ° 
 
 life and remainderman inter se (q). 
 
 Power to 7. On similar grounds, it would seem that a trustee may 
 
 exchange surrender a policy of assurance forming part of the trust 
 
 policy tor a . ^ 
 
 fully paid up property, in exchange for a fully paid up one of less 
 
 ^^''^- amount, in cases where the party liable to pay the 
 
 premiums cannot possibly do so (r). But of course no sane 
 
 lawyer would allow a trustee who was his client to do this 
 
 without the sanction of the court. 
 
 Power to 8. So, again, in cases where the court would, if applied 
 
 t in tmi er. ^^^ authorise the cutting down of timber which has arrived 
 at maturity, and which Vv'ould 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 autho- 
 rity (s). 
 
 Power to 9. On the same principle, a trustee who has the manage- 
 
 grant certam q^q^^ of property, may grant a reasonable agricultural 
 lease (t), unless expressly or impliedly {ic) restrained from 
 doing so by the settlement. But he may not grant a 
 mining lease, for that would benefit the tenant for life at 
 the expense of the reversioner (x). Moreover, where there 
 is a tenant for life, his consent would now be necessary 
 under s. 56 of the Settled Land Act, 1882. 
 
 {q) Re Foivler, Foxdtr v. Odell, 16 Ch. D. 723 ; but see supra, pp. 183 
 et 8tq. 
 
 (r) Re Steen, Stecn v. PcMaR, 25 L. R. Ir. 544. 
 
 («) W(Odo V. Wa/do, 7 Sim. 261 ; and see Seagram v. Knight, 
 2 Ch. Apj). 630 ; but see Illustration 2, j). 263, infra. 
 
 (<) Naylor v. Aruitt, 1 U. & M. 501 ; Bowes v. Ea>^t London Water 
 Co., Jac. 324; AHornty-Utneral v. Owen, 10 Ves. 560; Fitzpatrick v. 
 Warn, L. R. Ir. 35. 
 
 (v) FriivH V. JacIiHon, 8 Sim. 217; and see MichtUs v. Corbett, 
 34 I'.cav. 376. 
 
 {x) Wood, V. Paflc.soii, 10 I'cav. .544. IJut tliis is now provided for on 
 equitable terms by tlie iSettled Land Act, 1882 (45 & 46 Vict. c. 38). 
 
 I
 
 GENEEAL POWEES OF TEUSTEES. 261 
 
 10. In a recent case, Kekewich, J., held that a power to Art. 48. 
 make outlays in repairs or improvements, etc., out of _ 
 income or cajyital, impliedly authorised the trustees to power ™^ 
 mortgage the property for the purpose of raising the mortgage, 
 necessary money out of capital (?/). 
 
 11. On the other hand, trustees must not do acts, how- No power to 
 ever beneficial they may possibly be to the property, if they J"|iKe prob- 
 are in their nature unreasonable and problematical. For speculative 
 instance, they ought not to make merely ornamental im- improve- 
 provements (z), nor take down a mansion-house for the 
 purpose of rebuilding a better one {a), nor. build a villa for 
 
 the mere improvement of the estate (b). 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 un- 
 limited, so long as they are exercised bond fide (c). Trustees 
 are also empowered to carry out certain specified improve- 
 ments by the Improvement of Land Act, 1864 (27 & 28 Vict. 
 c. 114) ; but practically these have been superseded by the 
 corresponding powers given to the tenant for life by the 
 Settled Land Acts, 1882 to 1890. 
 
 12. With regard to acts for the benefit of the beneficiaries. Power to 
 
 a familiar instance occurs in the case of trusts of personalty ^'etain mar- 
 
 • T -CI ■ -I ^ r -I ^'^^^ women s 
 
 for married women, where, if the trustee paid over the fund trust funds 
 
 to the husband, the wife would probably get no benefit from to enable 
 
 it. In such case the trustee is justified, if he thinks fit, in equity to a 
 
 refusing to pay the money to the husband, and in paying it settlement. 
 
 into court instead, so that the wife may have every facility 
 
 for enforcing her equity to a settlement (d). But this right 
 
 has, it is apprehended, ceased in the case of property coming 
 
 under the provisions of the Married Women's Property Act, 
 
 1882 (45 & 46 Vict. c. 75). 
 
 iy) Be Bellinger, Durell v. Bellinger, [1898] 2 Ch. 534. 
 (z) Bridge v. Brown, 2 Y. & C. C. C. 181. 
 
 (a) Bleazard v. WhaUey, 2 Eq. Rep. 1093. 
 
 (b) Vyse v. Foster, L. R. 7 H. L. 318. 
 
 (c) Bowes V. Ea7~l ofStrathmore, 8 Jur. 92 ; and see also as to powers of 
 building, etc. , Re Leslie, 2 Ch. D. 185 ; and consider principle in 
 Gisborne v. Gisborne, 2 App. Cas. 300. 
 
 {d) Wat. 360; Be Swan, 2 H. & M. 34 ; Be Bendyshe, 3 Jur. (n.s.) 
 727.
 
 262 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art, 48. 
 
 Power to 
 allow main- 
 tenance to 
 infants. 
 
 13. So, trustees might always allow, by way of main- 
 tenance, a competent part of the income of property to the 
 father of an infant beneficiary (c), where the father could 
 not support it according to Us j^osition (/), even where there 
 was a trust for accumulation (g), if the circumstances showed 
 that the settlor looked on the infant as his heir (Ji) ; and, if 
 the infant were an orphan, maintenance might be allowed 
 to the mother (i), or stepfather (A;), whether they could support 
 it or not. And now, as will be seen under Article 52 (infra, 
 p. 269), 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 capital is considerably under a thousand pounds [1), 
 allow maintenance out of the capital ; but a trustee would 
 be very ill-advised to take upon himself the responsibility of 
 doing so (ni). 
 
 Power to 
 advance. 
 
 14. Upon the same principle, a trustee may apply part of 
 an infant's capital for its advancement in the world (n). 
 But here, again (in the absence of express power), he would 
 be undertaking an unnecessary risk in acting without the 
 sanction of the court. 
 
 Secus where 
 infant only 
 contingently 
 entitled. 
 
 15. But where, by making an advancement, the trustee 
 would injure the contingent rights of another beneficiary, 
 he will do it at his peril as against the latter (o). For 
 instance, where £100 was bequeathed upon trust to apply 
 the income towards the maintenance and education of A. 
 
 (e) Sis-wn v. Shaw, 9 Ves. 288; Mahcrly v. Turton, 14 Ves. 499; 
 Cothamv. Wtst, 1 Bcav. 381. 
 
 (/) Maintenance has been allowed to a father with an income of 
 £6,000 a year (Jerroixe v. Si/k, 1 G. Coop. 52 ; and see lie Allan, 
 Hanlork v. llardock, 17 Cli. D. 807). 
 
 ((j) Coll inn V. Collins, 32 ("h. 1). 229 ; Re Allan, Havdock v. Havelock, 
 mipra; lie Coh/an, 19 Cii. U. .30.5 ; Jle Thatcher, 26 Ch. D. 426. 
 
 (h) See lie Alford, Hunt v. Parry, 32 Ch. D. 382. 
 
 (i) iJonylaH v. Andreivn, 12 Beav. 310. 
 
 (k) Lew. 492, connnenting on liilliniidey v. Critchett, 1 B. C. C. 268, 
 as affected hy 4 & .') Will. 4, u. 76, s. .'57. 
 
 (0 Harlow V. < Irani, 1 Vern. 2.").') ; Ex parte Green, 1 J. & W. 253 ; 
 lie J/owarlh, H (Jli. Apj). 41.') ; De Witte v. Palin, 14 Eq. 251. 
 
 (m) See Walker v. Wethrrell, G Ves. 255. 
 
 (n) Siinnnoek v. J)e Crixpe, Fieo. 7S ; Boyd v. Boyd, 4 Eq. 305 ; 
 Iioper-(Jiii~:on v. Roper-Cnrzon, 1 1 K(j. 4.'52. 
 
 (o) \Vorlhin;ifou v. APCrcar, 23 Bcav. 81 ; Be Breeds, 1 Ch. D. 226.
 
 GENEEAL POWERS OP TRUSTEES. 263 
 
 during his minority, and upon trust to pay the corpus to Art. 48. 
 him on attaining 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 ( j?). 
 
 Illustrations of Paragbaph (2). 
 
 1. 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 35, 
 p. 160, supra. But, as pointed out there, it bends to a 
 plainly expressed intention on the part of the settlor to 
 the contrary. 
 
 2. With regard to the principle that the court in general No power 
 cannot interfere with legal interests, it is apprehended that ^vith\e„al^ 
 a trustee for another for life only (the trustee merely taking remainders 
 an estate _p2(r autre vie), would not be justified, without the 
 consent of the legal remainderman, in cutting timber which 
 
 had arrived at maturity, inasmuch as, 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 
 latter's legal rights (q) ; nor could he invest the proceeds so 
 as to equitably arrange the benefit between the tenant for 
 life and the remainderman. 
 
 3. On the same principle, it would seem, that although, 
 where the whole legal estate is in trustees, the court can 
 authorise them to mortgage the trust property for the 
 purpose of raising money to carry out necessary repairs (r), 
 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 
 jurisdiction to do so (s). 
 
 ( p) Lee V. Brown, 4 Ves. 362. 
 
 (q) See and consider Seagram v. Knight, 2 Ch. App. 630, and com- 
 pare it with Waldo v. Waldo, 7 Sim. 261, and Gent v. Harrison, John. 
 17. 
 (r) Ee Jaclctton, Jackson v. Talbot, 21 Ch. D. 786. 
 is) Jesse V. Lloyd, 48 L. T. 656.
 
 264 THE ADMIXISTRATION OF A TRUST. 
 
 Art. 49. 
 
 AiiT. 49. — Poicer of Trustees in relation to the 
 conduct of Sales. 
 
 (1) Where a trust for sale is Tested in trustees 
 they may carry out the sale as follows : — 
 
 (a) In such manner, and either alone or jointly 
 
 with an}' adjoining or any co-owner, as 
 (having regard to the nature of the 
 property, the title, and all the surround- 
 ing circumstances) may be reasonable 
 and for the probable benefit of the bene- 
 ficiaries (f). But, unless the trust was 
 created by a settlement coming into 
 operation after 27th August, 1860 (?/), 
 they cannot buy in the property at an 
 auction (x), or, semble, rescind a contract 
 for sale. 
 
 (b) If the trust was created by a settlement 
 
 coming into operation on or after the 
 1st of Januar}^, 188'2, then (unless for- 
 bidden by the settlement) they may sell 
 subject to prior charges or not, and may 
 concur with anj^ other person in selling, 
 without the necessity of making inquiries 
 as to whether the course adopted is the 
 best under all the circumstances (?/). 
 
 (c) B}' leave of the court (but not otherwise) 
 
 they may sell the surface, reserving the 
 minerals, with incidental powers of 
 working the same (z). 
 
 (0 See ne Cooj,fr avd Afku, 4 Ch. D. 802. 
 («) Lord Cranworth's Act (23 & 24 Vict. c. 145), ss. 1, 2, 34. 
 (x) Taylor v. Tahrum, (5 Sim. 281 ; Ex parte Ltiris, 1 Gl. & J. 69. 
 (y) Trustee Act, 1893 (.')G & o? Vict. c. .53), .s. 13 (1), re-enacting Con- 
 veyancing and Law of Property' Act, 1881 (44 & 45 Vict. c. 41), s. 35. 
 (2) Trustee Act, 1893, .s. 44.
 
 POWER IN RELATION TO CONDUCT OF SALES. 265 
 
 (2) The conditions subject to which the sale is Art- 49. 
 made should not be unnecessarily depreciatory (a) . 
 
 (3) A trustee who is either a vendor or a pur- 
 chaser may sell or buy without excluding the 
 application of section two of the Vendor and 
 Purchaser Act, 1874 (b). 
 
 Illusteations of Paragraph (1). 
 
 1. For an example of the law relating to old settlements, Power to 
 the case of Be Cooper and Allen (c) may be cited. The ^j^g q^^j ^^^ 
 question in that case was whether persons who were mort- independent 
 gagees of a life estate, and also mortgagees (for a different statute. 
 sum) of the reversion, with power of sale under both mort- 
 gages, could sell the fee simple in possession. The late Sir 
 George Jessel, M.E., 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 
 trust. 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 paid 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, 
 
 (a) But a depreciatory condition does not now avoid the sale unless 
 it appears that the price was thereby rendered inadequate, nor can the 
 sale be impeached after conveyance on that ground vmless the purchaser 
 and trustee were acting coUusively ; nor can a purchaser now make 
 any objection to a title on the ground that a condition of sale was 
 unnecessarily restrictive. See Trustee Act, 1893, ss. 14, 15, and supra, 
 p. 194. 
 
 (6) Trustee Act, 1893, s. 14. (c) 4 Ch. D. 802.
 
 266 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 49. 
 
 No power 
 formerly to 
 buy in at a 
 sale by 
 auction. 
 
 the purchase-money must be so apportioned before the com- 
 pletion 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 proper persons to make the apportion- 
 ment, 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 
 j^riind facie right and when 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 with- 
 out some evidence of its desirability, but that in the case of 
 trustees entitled only to a limited or partial estate in pro- 
 perty, 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. 
 
 2. As an instance of the inability of trustees under old 
 settlements 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 [d). 
 
 Art. 50. — Foiver of Trustees to give Beceipts. 
 
 " The receipt in writing of any trustee for any 
 money, securities, or other personal property or 
 effects payable, transferable, or deliverable to 
 him under any trust or power will effectually 
 exonerate the person paying, transferring, or 
 
 {(I) Ex parte Lcwix, 1 01. & J. G9.
 
 POWER OF TRUSTEES TO GIVE RECEIPTS. 267 
 
 delivering the same from seeing to the appHca- Art^o. 
 tion or being answerable for any loss or mis- 
 application thereof "(e). 
 
 The above rule is comparatively modern, dating only from 
 1881, when it formed s. 36 of the Conveyancing and Law 
 of Property Act of that year. It applies, however, quite 
 irrespective of the date of the settlement, and consequently 
 no questions of practical interest can arise under the old 
 law, which is therefore omitted in this Edition. 
 
 Art. 51. — Poiver to compoimd and to settle 
 Disputes. 
 
 " (1) An executor or administrator may pay or 
 allow any debt or claim on any evidence that he 
 thinks sufficient " (/)• 
 
 " (2) An executor or administrator, or tw^o or 
 more trustees, acting together, or a sole acting 
 trustee where by the instrument, if any, creating 
 the trust a sole trustee is authorized to execute 
 the trusts and powers thereof, may, if and as he 
 or they may think fit, accept any composition or 
 any security, real or personal, for any debt or for 
 any property, real or personal, claimed, and may 
 allow any time for payment for any debt, and 
 may compromise, compound, abandon, submit to 
 arbitration, or otherwise settle any debt, account, 
 claim, or thing whatever relating to the testator's 
 or intestate's estate or to the trust, and for any 
 of those purposes may enter into, give, execute, 
 and do such agreements, instruments of com- 
 position or arrangement, releases, and other 
 
 (e) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 20. 
 /) lb., s. 21 (1). ., .
 
 268 THE ADMINISTRATION OF A TEUST. 
 
 Art. 51. things as to him or them seem expedient, with- 
 out being responsible for any loss occasioned by 
 any act or thing so done by him or them in good 
 faith "(^). 
 
 *' (3) 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 effect subject to the terms of that 
 instrument, and to the provisions therein con- 
 tained " (/z). 
 
 The above article constitutes the first three sub-sections 
 of s. 21 of the Trustee Act, 1893, which is merely a re- 
 enactment of s. 37 of the Conveyancing and Law of 
 Property Act, 1881. What the effect of the section may be 
 is by no means clear. In Be Oioens (i),the late Sir Geoegb 
 Jessel, M.E., intimated that the probable effect of it was to 
 "revolutionize the law on the subject," and to make the 
 question in every case one entirely of good faith, quite apart 
 from any question of prudence. On the other hand, it has 
 been suggested that the section is merely a statutory expres- 
 sion of the law of the court [k), with this important differ- 
 ence, that it " shifts the omis of proof, where any particular 
 transaction is impeached, from the trustee to the cestui que 
 trust. Formerly a trustee had to justify his action in com- 
 promising, compounding, etc. ; henceforth the dissatisfied 
 cestuis que trust must prove impropriety of motive" (/). 
 However, in a recent case. Lord Justice LorES laid it down 
 broadly, that the only excuse for not taking action to enforce 
 payment of a debt due to the trust, is, " a ic ell founded belief 
 on the trustee's part, that such action would be useless, and 
 that the burden of inoving the groimds of such well founded 
 belief is on the trustee " {m), If this be indeed so, it is- 
 
 (-7) Trustee Act, 189.3, s. 21 (2). (h) lb., sub-s. (3). 
 
 (t) 47 L. T. 01 ; and sec j). 191, supra. 
 
 lie) See Lcwin, .'')12, 7tli ed. ; Wiles v. Gresham, 5 D. M. & G. 770; 
 Ex jxirh O'jfi, S Cli. A|)j>. ")]'). 
 
 (/) J'»rett and Clerke's Conveyancing, etc. Acts, .3rd ed., 159. 
 (to) J{e Bro'jdtn, BUliwj v. Brotjdtn, 38 Ch. D. 546, 574.
 
 POWEE TO COMPOUND AND SETTLE DISPUTES. 269 
 
 ■difficult to give any meaning whatever to the section ; but it Art. 51. 
 is only fair to add that the section was not drawn to the 
 attention of the court when the Lord Justice made the 
 .above-quoted observations, and that very probably it would 
 not have been applicable to that case (n). 
 
 Although the wording of the Act is open to criticism, it 
 must (it is conceived) be construed to mean that the power 
 is to be exercised by not less than two trustees, unless a sole 
 trustee is expressly authorised to execute the trusts, and 
 ■cannot be construed (as doubtfully suggested by the learned 
 authors above quoted) to enable amj tivo of a greater number 
 of trustees to compromise or compound without the joinder 
 of their fellows. 
 
 Aet. 52. — Power to alloiu Maintenance to 
 Infants. 
 
 (1) Where property is held in trust for an 
 infant for Hfe or for any greater interest, and 
 whether absohitely or contingently on his 
 attaining the age of twenty-one years, or on the 
 occurrence of any event before his attaining that 
 age, the trustees may, in their discretion, make 
 an allowance for his maintenance, education, or 
 otherwise for his benefit, whether there be any 
 other fund applicable to the same purpose, or 
 any person bound by law to provide for such 
 maintenance and education or not, and may pay 
 it to the guardian or parent (o) of the infant 
 instead of expending it directly themselves (jS). 
 
 (?i) See also pp. 304, 309, supra. 
 (o) Re Cotton, 1 Ch. D. 232. 
 
 (p) Conveyancing and Law of Property Act, ISSl (44 & 45 Vict, 
 c. 41), s. 43.
 
 270 THE ADMINISTRATION OF A TRUST. 
 
 Art- 52. (2) But the above power only applies to con- 
 tingent interests — 
 
 (a) where the intermediate income goes along 
 
 with the corpus {q) ; or 
 
 (b) in case of portions charged on land (r). 
 
 Illustrations of Paragraph (1). 
 
 Cases to !• Although the statute allows maintenance out of the 
 
 ■which the income of a contingent legacy or fund, yet if, on the true 
 applies. construction of the settlement, that income is payable to 
 
 someone else during the infancy, and is not to be accumu- 
 lated so as to pass along with the corpus if and when it 
 vests, the infant will not (with the exception hereinafter 
 referred to of portions charged on land) be entitled to be 
 maintained. For if he were, his maintenance would come, 
 not out of his own contingent property, but out of some- 
 body else's income, which would be manifestly unjust. 
 Consequently the first question which the practitioner has 
 to solve in all cases of maintenance (except as aforesaid) is, 
 whether or not the income of the fund will go along with the 
 capital, if and when the latter vests in the infant. If it will, 
 then maintenance may be safely allowed. If it will not, 
 then maintenance must be refused. 
 
 Whether tlic 2. The question is not so much a question of law as one 
 gift wmprisus of the interpretation of the settlement. Still, it may be 
 
 1111011110(11(110 ' «/ 
 
 income is a useful to sum up the decisions so far as they afford any 
 
 question of principle or rule of construction. It would seem, then, that 
 
 a general ?"esi(:Z«a?'7/ but contingent bequest of 7Jc/'so?/aZ estate 
 
 includes the intermediate income (s) ; that a similar devise 
 
 (q) lit JJivkmu, Hill V. (Irani, 29 Cli. D. '?,7,\ ; lie Jmlkiii, 25 Ch. 1). 
 743 ; y/e Utorijc, 5 Ch. I). 837 ; lie Collin.'^, Collim v. Collinf^, 32 Ch. L>. 
 229; lie J'-ffary, Hurt v. Arnold, [1891] 1 Ch. 671 ; Re Burton, Banks v. 
 Jlearrm, ( 1892| 2 Cli. 38 ; Jla l/vrnphriea, 62 L. J. Ch. 498 ; lie Adams, 
 Adajn>i v. Adam», [1893] 1 Ch. 329. 
 
 (r) lie ilreares, Jonen v. O'rearen, [1900] 2 Cli. 683. 
 
 {») lie Adams, Adams v. Adams, [1893] 1 Cli. 329.
 
 POWER TO ALLOW MAINTENANCE TO INFANTS. 271 
 
 of real estate does not {t) ; but that a blended gift of both Art. 52. 
 real and personal estate prima facie includes the inter- 
 mediate income of both {u). On the other hand, a general 
 or specific legacy or devise does not carry the intermediate 
 income unless (1) the donor stands in loco i^arentis to the 
 infant, and has provided no other fund for maintenance [x) ; 
 (2) the income is expressly directed to be applied for main- 
 tenance, or (3) the gift is expressly or impliedly directed to 
 be at once set apart [y). 
 
 3. There is, however, an exception to the general rule Portions 
 with regard to portions charged on land. Although such charged on 
 gifts do not vest until they are wanted, viz., in case of sons 
 at twenty-one, or in case of daughters at twenty-one or 
 marriage, and do not carry intermediate income, yet an 
 infant contingent portioner is entitled to such a rate of 
 interest or allowance in respect of his or her portion as the 
 court may deem necessary for maintenance [z). 
 
 i. It may be added that a gift of residue to an infant Residuary 
 makes the executor a trustee, and enables him to allow S^" to infant, 
 maintenance under this article (a). 
 
 Aet. 53. — Fotver of Trustees to pay to Attorney 
 appointed by Beneficiary. 
 
 A trustee acting or paying money in good 
 faith, and. without notice, under or in pursuance 
 of any power of attorney is not liable by reason 
 
 {t) Lord Bective v. Hodgson, 12 W. R. 625. 
 
 (u) Genery v. Fitzgerald, Jac. 468 ; Be Dumhle, Williams v. Ihirrell, 
 23 Ch. D. 360 ; Be Burton, Banks v. Heaven, [1892] 2 Cli. 38. 
 
 (x) Be Moody, [1895] 1 Ch. 101 ; Be George, 5 Ch. D. 837. 
 
 {y) Be Clements, Clements v. Pearsall, [1894] 1 Ch. 665 ; Be Medlock, 
 Baffle V. Medlock, 54 L. T. 828. As to leaseholds, Be Woodin, Woodin 
 V. Glass, [1895] 2 Ch. 309. See also Be Holford, [1894] 3 Ch. 30 ; 
 Guthrie v. Walrond, 22 Ch. D. 573 ; and Be Adams, Adams v. Adam.'i, 
 [1893] 1 Ch. 329. 
 
 (z) Per Farwell, J., Be Greaves, Jones v. Greaves, [1900] 2 Ch. 683. 
 
 (a) Be Smith, Henderson-Boe v. Hitchins, 42 Ch. D. 302.
 
 ^72 THE ADMINISTRATION OF A TRUST. 
 
 Art. 53. 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. But this does not affect the right of any 
 person entitled to the money against the person 
 to whom the payment is made, and the person so 
 entitled has the same remedy against the person 
 to whom the payment is made as he would have 
 had against the trustee (b). 
 
 The above article, although restricted in terms to trustees, 
 is but little more than the general law now applicable to 
 all persons acting upon the faith of a power of attorney, 
 inasmuch as s. 47 of the Conveyancing and Law of Property 
 Act, 1881, gives protection to every person so acting, not- 
 withstanding that before the payment or act the donor of 
 the power had died, or become lunatic or of unsound mind, 
 or bankrupt, or had revoked the power, if the fact of such 
 death, lunacy, unsoundness of mind, or bankruptcy or 
 revocation, was not, at the time of the payment or act, 
 known to the person making or doing the same. 
 
 Art. 54. — Suspension of the Trustee'' s Powers by 
 Administration Action. 
 
 (1) Where a judgment has been made for the 
 execution of the trust by the court, or before 
 judgment an injunction has been granted, or a 
 receiver appointed, the trustee cannot exercise 
 his powers, except with the sanction of the 
 court (c). 
 
 (h) Trustee Act, 1893, h. 2.3, rc-cnacting 22 & 23 Vict. c. 35, s. 26. 
 
 (c) Milrhclmn v. J'ipi.r, S .Sim. 04; iS/ieicoi v. VaitdcrhorM, 2 R. & 
 M. 7'> ; Mi Horn v. JiaUinon, 1 App. Cas. 42S ; Eaxtioood v. Clarke, 
 23 Ch. I). 134. The mere isauo of a writ for adiniiiistration does not 
 allect the trustee's powers (Berry v. (Hhfionx, 8 Cli. Ap]). 717).
 
 SUSPENSION OF TRUSTEE'S POWERS BY ACTION. 21'^ 
 
 (2) But although the sanction of the court Art. 54. 
 must be obtained, the court will not interfere 
 
 with a discretion reposed in a trustee and 
 expressed to be absolute and uncontrollable, so 
 long as it is exercised in good faith (d). 
 
 (3) A decree for administration does not absolve 
 a trustee from the performance of his duties (e). 
 
 Illustrations. 
 
 1. Thus a trustee cannot prosecute or defend legal pro- After 
 ceedings (/), nor execute a power of sale (g), nor make J"^^"^^"^' 
 repairs (h), nor invest (i), nor exercise any other power, 
 
 after a decree in an administration suit, without applying to 
 the court to sanction his doing so. However, it would 
 seem that, although a trustee may be personally liable for 
 acting without the consent of the court after judgment for 
 general administration, yet, if he does so act, he will be able 
 to confer a good title on parties who have no notice of the 
 judgment (with regard to personal estate), although the 
 action be registered as a lis 2}gi^(^G'}is {k). It is, however, 
 submitted that this would not apply to real estate where 
 the lis pendens is duly registered. 
 
 2. But where an executor or administrator, after the Before 
 commencement of a creditor's administration action, and jutlgment. 
 before judgment, has voluntarily paid any creditor in full, 
 
 he will be held to have made a good payment, and will be 
 allowed it in passing his accounts, even though he may 
 have had notice of the action before payment ; and it is 
 apprehended the same principle would be equally applicable 
 to trustees. To prevent such payments being made in any 
 
 (,d) Gisborne v. Qisborne, 2 App. Cas. 300 ; and see Illusts. I — 3, 
 Art. 48, supra, pp. 257 et seq. 
 
 (e) Garner v. Moore, 3 Drew. 277. 
 (/) Jones V. Powell, 4 Beav. 96. 
 (g) Walker v. Smallwood, Amb. 676. 
 (A) Mitchelson v. Piper, swpra. 
 \i) Bethell v. Abraham, 17 Eq. 24. 
 (k) Berry v. Gibbons, 8 Ch. App. 747.
 
 274 
 
 THE ADMIXISTRATION OF A TRUST. 
 
 Art. 54. 
 
 Powers of 
 trustees who 
 have paid 
 money into 
 court. 
 
 such case, the plaintiff should, immediately upon issui 
 his writ, apply for and obtain a receiver (I). 
 
 3. It may be conveniently mentioned here, that where 
 trustees have paid the trust fund into court under s. 42 of 
 the Trustee Act, 1893 (which re-enacts the Trustee Eelief 
 Act), they can no longer exercise any of their powers, 
 discretionary or otherwise. For the payment into court is, 
 in effect, a retirement by the trustees from their office, and 
 a relinquishment of the judgment and discretion confided to 
 them by the settlor (m). 
 
 (I) Be Raddiffe, European Ass. Society v. Eaddiffe, 7 Ch. D. 733 ; 
 and see also Re Barrett, Whitaker v. Barrett, 43 Ch. D. 70, wliere it 
 was held that notwithstanding an order for an account, an executrix 
 could still prefer a creditor, even although that creditor was herself in 
 the character of trustee of a settlement. 
 
 (»i) ^e Nettlefold, 59 L. T. 315.
 
 ( 275 ) 
 
 CHAPTEE V. 
 
 POWER OF THE BENEFICIARIES. 
 
 ART. PAGE 
 
 55. — Poioer of the Beneficiaries in a Simple Trust - - - 275 
 
 56. — Poioer of the Beneficiaries collectively in a Special Trust - 276 
 57. — Power of one of several Beneficiaries partially interested in a 
 
 Special Trust - 280 
 
 Aet. 55. — Poiver of the Beneficiaries in a 
 Simjde Trust. 
 
 The beneficiary in a simple trust, who is not 
 under any disability (h), is entitled to have the 
 legal estate vested in him or conveyed as he 
 may direct (a). 
 
 Illustration. 
 
 1. Thus, if property be devised unto and to the use of a 
 trustee in fee simple, upon trust to pay testator's debts and 
 subject thereto, upon trust for testator's widow for life, and 
 after her death upon trust for B. absolutely, B., on the 
 death of the widow and after payment of the debts, will be 
 entitled to call upon the trustee co vest the property 
 absolutely in him. For in equity B. is the sole and 
 absolute owner, and the court will not permit a person, 
 solely and absolutely entitled, to be subjected to the 
 tutelage or interference of a trustee. The court, in fact, 
 regards a trustee as a kind of intermediary or stakeholder, 
 whose office is to hold the scales evenly, and to see that 
 the rights of several persons are mutually respected. But 
 where there is only one person interested, and that person 
 
 (a) Smith v. Wheeler, 1 Mod. 17; Broion v. How, Barn. 354; Att.- 
 Gen. V. Gore, ib. 150 ; Kai/e v. Powell, 1 Ves. 408 ; and per Fry, J., He 
 Cotton's Trustees and London School Board, 19 Cli. D. 627. 
 
 T 2
 
 276 THE ADMINISTRATION OF A TRUST. 
 
 Art. 55. is S7ii juris, the trustees' raison d'etre ceases to exist, and 
 consequently he himself becomes merely a person in the 
 legal possession of another person's estate. 
 
 Aet. 56. — Foiuer of the Beneficiaries collectively 
 in a Special Trust. 
 
 If there is only one beneficiary, or if there are 
 several and they are all of one mind, and he or 
 they are not under any disability (&), the specific 
 performance of the trust may be arrested, and 
 the trust modified or extinguished. 
 
 Illusteations. 
 Vested 
 interest at 1. Thus, a testator gave his residuary personal estate to 
 
 twenty-one, si3 g^^ infant, and directed his executors to place it out at 
 
 but pajaiient ' ^ 
 
 deferred until interest to accumulate, and to pay the principal to the 
 
 twenty-four, infant on his attaining twenty-/owr, and in the meantime to 
 
 allow £60 a year for his maintenance ; and the testator 
 
 gave the residue over on the infant's dying under twenty- 
 
 one. The court held that on the true construction of the 
 
 \vill, the infant took an absolute vested and transmissible 
 
 interest on attaining twenty-one ; and that, consequently, 
 
 being the only person beneficially interested, he could put 
 
 an end to the trust, and was entitled to have the residue 
 
 and accumulations at once transferred to him (c). For, as 
 
 the late Vice-Chancellor Page Wood said, in the case of 
 
 (A) f.f., infants, lunatics, and married women, restrained from 
 aiiticiiiation. If a married woman wlio is not so restrained, is j'et 
 not entitled for her separate; use either hy settlement or statute, slie 
 can oidy arrest tlie trust subject to the provisions of the Fines and 
 Recoveries Ahcjlition Act (:i & 4 Will. 4, c. 74), and Malins' Act (20 & 
 21 Vict. c. .'57). Nor must it bo forgotten tiiat the latter statute does 
 not enalihi sucli a /(.mc rorc.rl to deal with future interests in personal 
 estate coming to lier under Ikt marriage settlement. 
 
 (r) JoH.'oJijii. V. Jn.sw/i/ii, '.) Situ. ().'{ ; SatiiKlirx v. Vnutier, Cr. & Pli. 
 24<» ; Wliarlov. v. M<i.stinn(iii, |1S!).")| A. C. 18(t, and distinguisli AV 
 Travi.H, Frost v. O'rcutorcx, | IDOOj li Cii. 541. Talbot v. Jtvers, 20 Eq. 
 255, appears to bo inconsistent witii these cases.
 
 POWER OF BENEFICIARIES COLLECTIVELY. 277 
 
 Gosling v. Gosling (d) : " The principle of this court has Art. 56. 
 always been to recognise the right of all persons who attain 
 the age of twenty-one to enter upon the absolute use and 
 enjoyment of the property given to them by a will, notwith- 
 standing any directions by the testator to the effect that 
 they 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." 
 
 2. The above cases must, however, be carefully dis- Otherwise 
 tinguished from those in which the settlement gives the mediate i„te- 
 trustees a discretion to apply the income until the given age rest does not 
 for the maintenance of a class of beneficiaries, or any one or P° V^"!^ 
 more of them to the exclusion of the others. For, in that 
 
 case, until 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). 
 
 3. Again, in Be Broion (/) there was a bequest of consols Bequest of 
 in trust to purchase a life annuity for a lady, to be held for ponsols'to 
 her separate use without power of anticipation ; and in case purchase a 
 of her illness or incapacity, the testator gave the trustees annuity, 
 a discretionary power as to the application of the annuity 
 
 for her maintenance. The legatee being 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 ({/). A similar result followed even 
 where the testator directed that the annuitant should not 
 te entitled to have the value of his annuity in lieu thereof, 
 
 {d) Johns. 265, and see judgment of Malins, V.-C, Bubh v. Padwich, 
 18 Ch. D. 517. Fry, J., dissented from this case in Re Chaston 
 (18 Ch. I). 218), but on grounds immaterial to the present point. 
 
 (e) Rt Coleman, Henry v. Strong, 39 Ch. D. 443. 
 
 (/) 27Beav. .324. 
 
 {(/) See also Tullett v. Armstrong, 4 My. & Cr. 377; Buttanshaw v. 
 Martin., Johns. 89 ; Wright v. Wright, 2 J. & H. 655 ; Cooke v. Fuller, 
 26 Beav. 99 ; Barton v. Briscoe, Jac. 603 ; Re Gaffee, 1 M. & G. 547 ; 
 Re Linyee, 23 Beav. 241.
 
 278 
 
 THE ADMIXISTEATIOX OF A TRUST. 
 
 Art. 56. and that if he should sell it, it should cease, and form part- 
 of her residuary estate {h). 
 
 Absolute 
 gift to 
 daughters 
 %\-itli direc- 
 tion to settle 
 upon them- 
 seh'es at 
 marriage. 
 
 Direction 
 to sell estate 
 and divide 
 proceeds. 
 
 i. So, where a testator directed his property to be divided 
 into nine shares, and gave one and a half share to each of 
 his two daughters, "to be settled on themselves at their 
 maiTiage," it was held by Sh- Ja^ies Bacon, V.-C, that, 
 071 the true construction of tlie will (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 absolutely, 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 con- 
 struction of the will was correct may perhaps be respectfully 
 doubted {k). Anyhow, the reader must carefully distinguish 
 the above case from those in which there is a direction to 
 settle on a daughter and lier issue (I), where of course she 
 would not be the only person beneficially interested, and 
 consequently would not be entitled to demand the capital. 
 
 5. On similar principles, where an estate is directed to 
 be sold and the proceeds to be divided among several 
 persons, although no one singly can elect that his own 
 share shall not be disposed of, but shall remain realty (?;i), 
 yet if all the beneficiaries agree to take the land uncon- 
 verted, 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. Where, however, there is no trust for sale, 
 but merely a potcer of sale, the rule is subject to this modi- 
 fication, viz., that the trust still subsists, and the trustees 
 can still exercise the power after the property has, under 
 the trusts, become absolutely vested in persons who are 
 sui juris, if, on the construction of the settlement, it aj^pears 
 
 (/i) Ihinl-FoulMon v. Furbtr, S Ch. D. '285. 
 
 (/) Miiijrut/i V. Mon/aad, 12 Eij. 491. 
 
 (k) See Lor/i v. HayUy, 4 Va\. 122. 
 
 (/) 8ee, fur example, Wist v. Piptr, 13 Ch. D. 848. 
 
 Uarrourt v. Si ijmour, 2 Sim. (n.s.) 45; Cooknon v. Rtay, 5 Beav. 22 ;. 
 Jjixon V. Ouy/trc, 17 lieu v. 433.
 
 POWER OF BENEFICIARIES COLLECTIVELY. 279 
 
 to he the intention of the settlor that it shoidcl he then Art, 56. 
 
 exercised, and provided that the power in its creation was 
 
 not obnoxious to the rule against perpetuities (o). It is 
 
 apprehended that it follows that, in such a case 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 confided to them for the benefit of all the 
 
 beneficiaries. 
 
 6. The above examples deal only with cases in which Joinder of all 
 
 there was either one beneficiary only, or several entitled "^enencianes 
 
 '' '' where 
 
 as tenants in common or joint tenants. The same principle, entitled 
 
 however, is equally applicable where the trust is for persons successively, 
 in succession, and they all unanimously desire to put an end 
 to the trust. This branch of the rule (known as the rule in 
 Saunders v. Vautier {j^)) is frequently made use of in 
 practice. 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. absolutely, then A.,B., X., Y. and Z. being 
 the only persons beneficially interested, 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. Even where it is not ahsokitely cevt&in 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 preju- 
 diced (q), although it is understood that the court will not 
 in such cases imperatively order the trustees to do so (r). 
 
 7. The question is sometimes asked, whether a mortgagee IMortgagee 
 of an only beneficiary, or, what comes to the same thing, °^ ^^l''?^„®, 
 
 interests. 
 
 (o) Be Cotton's Trustees and London School Board, 19 Ch. D. 624 ; 
 Peters v. Lewes and East Grinstead Bail. Co., 18 ih. 429; Be Lord 
 Sudeley and Baines d; Co., [1894] 1 Ch. 334, discussed in Be Dyson and 
 Fowke, [1896] 2 Ch. 720. 
 
 {p) Cr. & Ph. 240. 
 
 (g) Be White, White v. Edmond, [1901] 1 Ch. 570 ; Davidson v. 
 Kempton, 18 Ch. D. 213; Be Widdow, 11 Eq. 408; Be Milner, U ib. 
 245 ; but cf. Croxton v. May, 9 Ch. D. 388. 
 
 {r) There is no reported decision as to this, but it is the well known 
 practice.
 
 280 THE ADMINISTEATION OF A TRUST. 
 
 Art. 56. 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 principle 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 redemp- 
 tion 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 fore- 
 closure, he could put an end to the trust ; and so, if he 
 sold the entire beneficial interest of all the mortgagees, 
 could the purchaser. Moreover, if the mortgage, or all 
 the mortgages (as the case may be), contained powers 
 authorising the mortgagee to stay, or agree with others in 
 staying, the trust, he might, under such powers, do so ; but 
 nothing short of a most explicit power would enable him 
 before foreclosure or sale to demand a conveyance of the 
 legal estate (s). 
 
 The above view seems to be borne out by the cases of 
 lie Bell, Jeffery v. Sayles (t) and Hockey v. Western (u), 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 (i). 
 
 Art. 57. — Power of one of several Beneficiaries 
 jiartially interested in a Special Trust. 
 
 (1) The authority of one of several bene- 
 ficiaries in a special trust, in general depends 
 upon the terms of the trust as construed by 
 the court, coupled with the powers conferred on 
 
 (s) Sec priHxim ohHorv.alions of .Jksskl, M.R. , as to tlic rights of a 
 mortgagee of (listiiict Ifoiielicial interests, Ri. Cooper and Allen, 4 Cli. D. 
 «14. 
 
 (0 (IHOfil 1 Cli. I. («) [18981 1 Ch. .350.
 
 POWER OF ONE OP SEVERAL BENEFICIARIES. 281 
 
 •equitable tenants for life by the Settled Land Art. 57. 
 Acts, 1882 — 1890. But, if sui juris, a beneficiary 
 cannot be prohibited from assigning his or her \ 
 interest, save only in the case of a married | 
 woman during coverture (.c). 
 
 (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 (//). 
 
 Illusteations of Paeagbaph (1). 
 
 1. The interest of a beneficiary (save only in the case of Equitable 
 
 • n T • 1 . \ i_ ^ -I interest of 
 
 a married woman dm-mg her coverture) cannot be made beneficiary 
 
 inalienable {z), except by means of a shifting clause giving cannot be _ 
 
 it over, or practically giving it over, to some other person "j j ® ^ce t " 
 
 upon alienation {a), in which case such other person having during 
 
 a contingent interest is also a beneficiary. For instance, coverture. 
 
 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 by it [h). 
 
 2. Where, however, there is a trust to pay income to A. Otherwise 
 until he shall alien or become bankrupt, etc., and, upon the "^^'l^^re gift 
 
 over on 
 
 happening of any of those events, a further trust to pay to alienation. 
 
 {x) Pyhusx. Smith, 3 B. C. C. 340 n. ; Be Ellli, 17 Eq. 409 •,Horlochv. 
 Horlock, 2 D. M. & G. 644 ; TuUett v. ArmMrong, 4 My. & Cr. 392 ; Re 
 Gaffee, 1 M. & G. 547 ; Buttan-shaw v. Martin, Johns 89. Covertiu-e 
 means effective marriage, and ceases to exist not only by the death of 
 the husband, but also by divorce {Be Linyee, 23 Beav. 241), jurticial 
 separation, or the granting of a protection order [Cooke v. Fuller, 
 26 Beav. 99). 
 
 (y) Be Bagot, [1894] 1 Ch. 177 ; Be Bichardson, Bichardson v. 
 Bichardson, [1900J W. N. 3 ; Be Hunt, Pollard v. Geake, ib. 65 ; Be 
 Money Kyrle, Money Kyrle v. Money Kyrle, ib. 171. 
 
 (2) Snowdon v. Dales, 6 Sim. 524 ; Green v. Spicer, 1 R. & M. 395 ; 
 Brandon v. Bobin-Hon, 18 Ves. 429 ; Hood\. Oglander, 34 Beav. 513. 
 
 (a) See Oldham v. Oldham, 3 Eq. 404 ; Billson v. Crofts, 15 Eq. 314 ; 
 Be Aylwin, 16 Eq. 585 ; Ex parte Eyston, 7 Ch. D. 145 ; and see Re 
 Porter, Coulson v. Capper, [1892] 3 Ch. 481. 
 
 (6) Younghusband v. Gisborne, 1 Coll. 400.
 
 282 
 
 THE ADMIXISTEATIOX OF A TRUST. 
 
 Art. 57. 
 
 Restraint on 
 alienation 
 bj' married 
 woman does 
 not prevent 
 her barring 
 an entail. 
 
 How far 
 equitable life 
 tenant may 
 claim actual 
 possession. 
 
 him or apply for his benefit during the remainder of his 
 life, the "^hole or so miich only 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 paid 
 to other j^^^'sons, 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 ( c) . Moreover, it appears that although the trustees 
 would not be justified in jpaying 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 justi- 
 fied in expending it for his benefit {d). 
 
 3. Even where a married woman who is tenant in tail 
 for her separate use is restrained from anticipation, she can 
 bar the entail and turn her estate into a fee simple ; for she 
 does not thereby anticipate her interest, but only enlarges 
 it {e). 
 
 Illustrations of Pakageaph (2). 
 
 1. ^Miatever the law may have been at one time, the court 
 has, since the passing of the Settled Land Act, 1882 (45 & 
 46 Vict. c. 38), exercised much more freely its undoubted dis- 
 cretion as to allowing an equitable hfe tenant to have actual 
 possession (/). The principles on which the cotirt now acts 
 in such cases are stated in Re Bagot (g). There Chitty, J., 
 said : "It is clear that Mrs. Bagot (the equitable life 
 tenant) has no right 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 hus- 
 band, to the extent to which she may desire to obtain his 
 assistance, should have the management of the property, 
 the income of which she is entitled to receive, and that she 
 
 (r) Jh Bidlork, Good v. Lirkori'<h, U-1 L. T. T-'JG. 
 
 \d) Ke ISnllork, supra : andr/'. JU Coleman, Htnryx. Strong, 39 Ch. D. 
 44.3, and lit Ntil, Jlcmmiuu v." Xtil, G2 L. T. 649. 
 (e) Coo/i> r V. Macdouuld, 7 Ch. D. *292. 
 if) lit liirhardioii, Richardvon v. liichard^on, supra, 
 (fj) [1.S94J 1 Ch. 177.
 
 POWEK OF ONE OF SEVERAL BENEFICIARIES. 283 
 
 should get that income with as httle expense in the way of Art. 57. 
 commission for collecting rents, employment of agents, and 
 the like, as is practicable under the circumstances. . . . 
 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 ones. 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 Be Wythes (/?) . In Be Neiven, 
 Neioen v. Barnes {i), Kekewich, J., appears to have con- 
 sidered that an equitable tenant for life is entitled to be let 
 into possession on a proper case being made, but if and so 
 far as he intended to hold that the matter was not 
 discretionary, that view has been dissented from by 
 Stibling, J. {k). 
 
 {h) [1893] 2 Ch. 375. 
 
 (^■) [1894] 2 Ch. 297. See also Re Money Kyrle, Money Kyrle v. Money 
 Kyrle, 49 W. R. 44. 
 
 (^•) Re Hunt, Pollard v. Geake, [1900] W. N. 65.
 
 284 ) 
 
 CHAPTEE VI. 
 
 THE DEATH, EETIREMENT, OR REMOVAL OF A 
 TRUSTEE, AND THE EFFECT THEREOF IN 
 RELATION TO THE OFFICE OF TRUSTEE. 
 
 ART. PAGE 
 
 58. — Survivorshi]} of the Office and Estate ----- 284 
 
 59. — Devolution of the Office and Estate on Death of the 
 
 Survivor --------- 285 
 
 60. — Retirement or Removal of a Trustee ----- 290 
 
 61. — Appointment of nexo Trustees ------ 294 
 
 62. — Vesting of Trust Property in new Trustees . . . 309 
 
 63. — Severance of Trust on Apjmntment of new Trustees - - 319 
 
 Aet. 58. — Survivorship of the Office and 
 Estate. 
 
 Upon the death of a trustee, the office, as 
 well as the estate, survives to the survivmg 
 trustees (a) ; and, notwithstanding that there is 
 a power for the appointment of new trustees (b), 
 the survivors can carry out the trust and exer- 
 cise all such powers as are necessary for that 
 purpose (c), unless there be something in the 
 settlement which specially manifests an intention 
 to the contrary (d) . 
 
 Illustration. 
 Sale by Thus, where there was a devise and bequest of freehold 
 
 t"'^Htee"^ and other property, and all other the testator's real and 
 
 i'l) Warhurton v. Stmily», 14 Sim. 022; Eyrew Countess of Shaftes- 
 hury, 2 I'. W. 121—124. 
 
 (I)) WarlmrloH v. Sandy-i, Mvpra ; Doe v. Godirin, 1 D. & R. 259. 
 
 (c) Lane v. Dehaihum, 11 Hare, IH.S ; Kyrax. Convtrsx of Shufteslmry, 
 HUpra ; Rv. Cookii'H Contract , 4Ch. 1). 4r)4 ; and as to sutLluinciits coming 
 into operation Hincc 1H81, hcc Trustuo Act, 18'J3(5U & .O? Vict. c. 53), s. 22. 
 
 (<l) lu,li y V. Wonlntr, 2 J. & W. 245; and see Jacob v, Lucaa^ 
 1 licav. 430.
 
 SURVIVORSHIP OF OFFICE AND ESTATE. 28.'> 
 
 personal estate to two persons, their executors and admini- Art. 58. 
 strators, upon trust, by sale, to raise and invest a certain 
 sum of money and apply the interest as therein directed, 
 and one of the trustees died, and the other proceeded to sell 
 the estate, it was held, on an objection to the title, that the 
 surviving trustee might exercise the power of sale. The 
 Vice-Chancellor said : " The argument proceeds, as it 
 appears to me, on an entire disregard of the distinction 
 between powers and trusts. No doubt where it is a naked 
 power given to two persons, that will not survive to one of 
 them unless there be express words or a necessary implica- 
 tion. . . . When, on the other hand, a testator gives 
 his property, not to one party subject to a power in others, 
 but to trustees upon special trusts, with a direction to carry 
 his purposes into effect, it is the duty of the trustee to 
 execute the trust. If an estate be devised to A. and B. 
 upon trust to sell, and thereby raise such a sum, it is, 
 I think, a novel argument, that after A.'s death B. cannot 
 sell the estate and execute the trust " (e). And now, by s. 22 
 of the Trustee Act, 1893, it is expressly enacted, that where, 
 in the case of a trust created after December 31st, 1881, a 
 power or trust is given to, or vested in, two or more trustees 
 jointly, then, unless the contrary is expressed in the settle- 
 ment (if any), the same may be exercised or performed by 
 the survivor or survivors of them for the time being. 
 
 Art. 59. — Devolutioji of the Office and Estate on 
 Death of the Survivor. 
 
 (1) Upon the death of a last surviving trustee, 
 since the 31st December, 1881, the trust property 
 (with the sole exception of copyhold property) 
 devolves on his legal personal representative, and 
 is incapable of being devised or bequeathed (/). 
 
 (e) Lane v. Debenham, supra ; and i?e Cooke's Contract, supra. 
 
 (/) Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. 
 c. 41), s. 30, as amended by s. 45 of the repealed Copyhold Act, 1887, 
 now re-enacted in s. 88 of the Copyhold Act, 1894 (57 & 58 Vict. c. 46). 
 It is conceived that a last surviving trustee cannot evade this prohibi- 
 tion by appointing " special executors " for the purpose of executing 
 the trust (see Re Parker, [1894] 1 Ch. 707 ; Rose v. Bartlett, Cro. Car. 
 292 ; Cloiigh v. Dixon, 10 Sim. 564).
 
 286 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 59. 
 
 Modern 
 changes in 
 the law as to 
 the devolu- 
 tion of trust 
 propert3^ 
 
 Copyholcls, however, devolve on the customary- 
 heir, unless {semhle) they are expressly devised. 
 
 (2) The person on whom the trust property 
 devolves can exercise the iDOwers and duties of 
 the trustee, unless it is to be collected from the 
 settlement that the office was intended to be a 
 personal one. 
 
 History of Paeageaph (1). 
 
 Previously to 1874 the devolution of trust estates was 
 regulated by the ordinary common law rules in relation to 
 the devolution of property of a similar character, to ^Yhich 
 the trustee was beneficially entitled. Thus, trust personalty, 
 or trust leaseholds, devolved upon the trustee's legal personal 
 representatives ; and trust real estate devolved upon his 
 heir, or jjcissed to Ms devisee if he made a will which either 
 expressly or impliedly passed the legal estate in such lands. 
 
 This state of the law has, however, been from time to 
 time altered in a fashion even more half-hearted and com- 
 plex than is usual with the attempts of Parliament to amend 
 our law of property. The net result of this legislation seems 
 to be as follows : 
 
 (1.) If a trustee of real estate died between August 7th, 
 1871, and January 1st, 1882, and was oiot a bare tmstee {g), 
 it descended to his heir-at-law or customary heir. 
 
 (2.) If he died between August 7th, 1874, and January 1st, 
 1876, and was a bare trustee, then the trust property during 
 
 (;/) Tlie statutory expression "bare trustee" has given rise to con- 
 siderable diHerence of opinion. The late Sir Gkok(;k Jessel thought it 
 meant a trustee who luul no beneficial interest in the property (Mor(janv. 
 «S'"Yt//w« Hoard, 9 Ch. ]>. r)82). On the other liand, tlie late Vice- 
 Chaiiccllor Haij^, in Christit v. OviiKjIon, 1 Cli. 1). 27!) ; Vice-Chan- 
 cellor liAcoN, in /iV Dorirra, 2!) Ch. 1). (J9.S ; and Mr. .Justice Stikling, 
 ill A'' ('iiiuiIikjIkivkiikI Fnti/Ziinj, [1891] 2 Cii. /JOT, all considered that it 
 meant a trustee with no duties except to convey llie property to or by 
 tlie direction of the ccsliiin que triin/, and that a trustee Avho also took a 
 beneficial interest (e.g., as tenant in c(tmnion) miglit be a bare trustee. 
 It is conHidcrcfl that the latter view is the correct one.
 
 DEVOLUTION OF OFFICE AND ESTATE ON DEATH. 287 
 
 that period was vested in his personal representatives ; but Art. 59. 
 unless they conveyed it during that period, it shifted to his 
 heir-at-law or customary heir on January 1st, 1876 {h). 
 
 (3.) If he died between January 1st, 1876, and January 
 1st, 1882, and was a bare trustee, it devolved upon his 
 personal representatives (i). 
 
 (4.) If he died on or after January 1st, 1882, and the 
 property loas freehold, it devolved (and still would devolve) 
 upon his personal representatives, quite irrespective of 
 whether he was or was not a bare trustee (k). 
 
 (5.) If he died between December 31st, 1881, and Sep- 
 tember 16th, 1887, and the trust property was of customary 
 or copyhold tenure, it was during that period vested in his 
 personal representatives ; but unless they conveyed it during 
 that period it shifted to his customary heir on the latter 
 date [l). 
 
 (6.) If he died on or after September 16th, 1887, and the 
 trust property was of customary or copyhold tenure, it 
 devolved (and still would devolve) on his customary 
 heir (in). 
 
 As above stated, a sole or last surviving trustee who died Devise of 
 on or before December 31st, 1881, was empowered to devise trust estates, 
 or bequeath the legal estate in the trust property of what- 
 ever tenure or nature (?z.) ; and a trustee of customary or 
 copyhold lands can, it is apprehended, still do so. Trust 
 estates capable of being devised pass under a general devise 
 
 (/i) The extraordinary effect of s. 48 of 38 & 39 Vict. c. 87 (Land 
 Transfer Act, 1875), repealing 37 & 38 Vict. c. 78 (Vendor and Pur- 
 chaser Act, 1874), s. 5, as construed by Hall, V.-C, in Christie v. 
 Ovington, 1 Ch. D. 279. 
 
 («■) 38 & 39 Vict. c. 87, s. 48. 
 
 (k) 44 & 45 Vict. c. 41 (Conveyancing and Law of Property Act, 
 1881), s. 30, and possibly also under the Land Transfer Act, 1897. 
 
 {I) Copyhold Act, 1887, s. 45, as construed in Be Mills, 37 Ch. D. 
 312 ; 40 i'b. 14. 
 
 (m) Copyhold Act, 1887, s. 45 ; qiicere, whether this is so if he be a 
 bare trustee (40 Ch. D. 14). 
 
 (n) Constructive trust estates (as land agreed to be sold) passed under 
 a devise of trust estates (Lysaght v. Edwards, 2 Ch. D. 499) ; but see 
 above-cited statute, s. 4.
 
 288 
 
 THE ADMINISTEATION OF A TEUST. 
 
 Art. 59. or bequest unless the will contains expressions authorising" 
 a narrower construction, or the disposition of the estate so 
 devised or bequeathed be such as a testator would be 
 unlikely to make of property not his own (o). Thus, where 
 a testator subjected the property, passing under a general 
 devise, to the payment of debts or legacies (p), or directed 
 them to be sold (g), or devised them to persons as tenants 
 in common (r), or to a numerous and unascertained class (s), 
 or limited them in strict settlement, or in any other way 
 which made it impossible to say the intention could be to 
 give a dry trust estate, trust estates would not pass. 
 
 Party on 
 whom trust 
 estate de- 
 volves not 
 necessarily 
 able to 
 execiite 
 the trust. 
 
 Illustrations of Paragraph (2). 
 
 1. "Whether, however, the person on whom the trust 
 property devolves can exercise the duties and powers 
 confided to the trustees by the settlement, depends on the 
 intention of the settlor as expressed in the settlement. 
 Thus, where the settlor gave personal property to A. B. 
 upon trust "that the said A. B." do carry out certain 
 specified objects, then upon the death of A. B., although 
 the estate vested in his executor, the latter w^as unable to 
 execute the trusts. For, as was said by Lord Cottbnham 
 in Mortimer v. Ireland (t), " whether the property is real or 
 personal is no matter ; for suppose a man appoints a trustee 
 of real and personal estate simpliciter , adding nothing more, 
 this cannot make his representative a trustee. . . . The 
 property may vest in the representative, but that is quite 
 another question from his being a trustee." However, his 
 lordship's observation must not be taken literally. The 
 representative would clearly be a tcustee, but not the trustee 
 to execute the express trust. 
 
 ((>) Ilnii/hrool-e v. ItiHkip, 8 Vcs. 436 ; Ex parte Morgan, 10 Ves. 101 ; 
 LawjJ'oriL v. Amid, 4 Hare, ;}1.3. 
 
 (p) Re. Morldy, 10 Hare, 29.3 ; Re. Packman and 3Toft.'i, 1 Cli. D. 214 ;. 
 /iV ndlia's Trust, 5 Ch. 1). rm ; but see Brown v. Sibk^j, 24 W. R. 783, 
 roiilra. 
 
 (7) Rr. Morlry, svpra. 
 
 (r) Martin v. Larcrtnn, 9 K(|. .')GS. 
 
 (h) Re Fiunty, 3 (iili'. 405 ; see also Ur. Packman and Moss, supra ; 
 Knd cf)niparo \\\{,\\'J}ronmy. Sibley, supra. 
 
 (0 II .Jur. 721. But quii-rc, sec observations of Jkssel, M.R., in 
 Re Osborne and RowkU, 1.3 Cii. 1)., at p. 789.
 
 DEVOLUTION OF OFFICE AND ESTATE ON DEATH. 289 
 
 2. But where freeholds are vested in trustees, upon trust Art. 59. 
 that " they or the survivor of them, or the heirs ... of 
 
 such survivor," shall perform the trust, or where personal sentatives 
 property is vested in trustees upon trust that they or the mentioned, 
 survivor of them or the executors or administrators of the ^^'^'"'^' 
 survivor shall perform the trust, then, upon the death of 
 the survivor, the person on whom the trust estate devolves 
 is able to execute the trust [u). I say the person on 
 whom the estate devolves, because since December 31st, 
 1881, freehold trust estates devolve on the trustee's personal 
 representatives, and not upon his heir ; and notwithstanding 
 that the settlement has conferred the trust upon the trustee 
 ■and his heirs, the office will devolve on his personal repre- 
 sentatives. For, by s. 30 of the Conveyancing and Law of 
 Property Act, 1881 (44 & 45 Vict. c. 41), it is enacted, that 
 ior this purpose " the personal representatives for the time 
 being, of the deceased [trustee], shall be deemed in law his 
 heirs and assigns, toithin the meaning of all trusts and 
 pozoers " [x). This Act does not, however, extend to copy- 
 hold or customary estates (y). 
 
 3. As above stated, a trustee who died before Questionable 
 January 1st, 1882, could devise (and where it consists of (jev'isee of 
 copyhold or customary land, can still devise (z) ) the estate, trust estates 
 unless expressly, or by necessary implication, prohibited ^°"^^ execute 
 from doing so. Whether, however, a valid devise of the the settle- 
 estate would confer on the devisee the right of executing meiit confided 
 
 trust to 
 the trust is very questionable, unless the settlement trustee and 
 
 expressly confided the trust to the trustee or his assigns (a) . his assigns. 
 
 At one time, owing to the decision of Vice-Chancellor 
 
 Shadwell, in Cooke v. Graioford (6), it was considered that 
 
 a devisee of a trust estate could only execute the trust if it j 
 
 {u) Re Burtt, 1 Drew. 319 ; Be Morton and Hallett, 15 Ch. D. 143 ; 
 lie Cunningham and Frayling, [1891] 2 Ch. 567. 
 
 {x) See Re Pixton and Tomj, 46 W. R. 187, where the power was 
 given to " the trustees for the time being" and it was held to be exer- 
 ciseable by the personal representative of the last survivor. 
 
 iy) Copyhold Act, 1887 (50 & 51 Vict. c. 73), s. 45. 
 
 (z) Section 45 of Copyhold Act, 1887, semhle. 
 
 \a) Re Osborne and Rowlett, 13 Ch. D. 774; dissenting from Cooke x. 
 Crawford, 13 Sim. 91, and explaining Hall v. May, 3 K. & J. 585 ; 
 Titley V. Wolitenliolme, 7 Beav. 425 ; Saloway v. Strawhridge, 1 K. & J. 
 371. 
 
 (b) Supra.
 
 290 THE ADMINISTEATION OF A TRUST. 
 
 Art. 59. was, by the settlement, confided to the trustee and his 
 assigns ; but that doctrine, after being repeatedly ques- 
 tioned, was energetically dissented from by the late Sir 
 Geoege Jessel, M.E., in the case of Be Osborne and 
 Bowlett (c), where his lordship, after elaborately showing 
 its absurdity, and how often it had been questioned and 
 doubted, and reviewing the whole of the authorities, said: 
 " Therefore, looking at this state of things, we must' 
 consider Cooke v. Craivford overruled." His lordship was 
 of opinion that the person to execute the trust is the person 
 who takes the estate, not by accident, so to speak, but in 
 accordance with the provisions of the instrument by which 
 the trust was created. " There is a trust annexed to the 
 estate, and when we find who is the person who takes the 
 estate under the will, then we find who is the person to 
 execute the trust." However, this decision of Sir George 
 Jessed's was questioned by Lords Justices Jambs and 
 Baggallay in Be Morton and Hallett (d), where their lord- 
 ships said, that as at present advised, they were not pre- 
 pared to dissent from Cooke v. Crawford, or to concur in the 
 opinion, expressed by Sir Geokge Jessel, that it had been 
 overruled. The law, therefore, on the point, is in a far from 
 satisfactory state. The point is not now of so much interest 
 as it was formerly, inasmuch as, by s. 30 of the Conveyanc- 
 ing and Law of Property Act, 1881, trust estates (except 
 those of copyhold and customary tenure, which were taken 
 out of that statute by s. 45 of the Copyhold Act, 1887), now 
 s. 88 of the Copyhold Act, 1891 (57 & 58 Vict. c. 46), can no 
 longer be devised ; but the question may nevertheless, for 
 some years to come, remain of importance in the investiga- 
 tion of titles to real estate. 
 
 Aet. (30. — Betirement or Hevioval of a Trustee.. 
 
 (1) A trustee can only retire — 
 
 (a) Under an express power ; 
 
 (b) Under the statutory power conferred by 
 
 the Trustee Act,' 18U3, either on the 
 
 (r) Stipru. (d) 15 Ch. D. 143.
 
 EETIREMENT OR REMOVAL OF A TRUSTEE. 291 
 
 appointment of a new trustee in his Art. 60. 
 place, or (where there are more than 
 than two trustees) without such 
 appointment if two remain ; 
 
 (c) By the consent of all the beneficiaries, 
 
 which can only be obtained where all 
 are sni juris (e) ; 
 
 (d) By order of the court (/). 
 
 (2) A trustee may be removed from his office — 
 
 (a) Under an express power ; 
 
 (b) Under the statutory power contained in 
 
 the Trustee Act, 1893 ; 
 
 (c) By the court (g), at the instance of any 
 
 of the beneficiaries, w^here he has be- 
 haved improperly (//.), or is incapable 
 of acting properly (/), or is a felon or 
 dishonest misdemeanant, or a recent 
 bankrupt (A'), or is residing permanently, 
 or for a long or indefinite period, 
 abroad (l), or cannot be heard of (m), 
 or any other good reason (n). 
 
 Illustrations of Paragraph (1). 
 
 1. The most usual way in which a trustee retires is under Retirement 
 
 IT i • i. under powers 
 
 a power enabhng some person or persons to appomt a new ^f appointing 
 
 new trustees. 
 
 (e) Wilkinson v. Parry, 4 Russ. 276 ; and see Art. 56, stipra. 
 
 (/) Re Greyson, 34 Ch. D. 209. 
 
 {g) Under s. 25 of the Trustee Act, 1893. Procedure is by originating 
 summons even where the trustee resists {Re Dawson, 48 W. R. 73). 
 
 {h) Millard v. Eyre, 2 Ves. 94 ; Palairet v. Carew, 32 Beav. 567. 
 
 {i) Buchanan v. Hamilton, 5 Ves. 722 ; and Re Lemann, 22 Ch. D. 
 633 ; and Re Phelps, 31 Ch. D. 351, where trustees were incapable from 
 old age and infirmity. 
 
 (h) Re Adams' Trust, 12 Ch. D. 634 ; Re Barker, 1 Ch. D. 43. 
 
 (I) Buchanan v. Hamilton, supra ; Re Bignold, 7 Ch. App. 223 ; and 
 Re The Moravian Society, 26 Beav. 101. 
 
 (m) Re Harrison, 22 L. J. Ch. 69. 
 
 (n) See Assets, etc. Co. v. Trustees, etc. Corporation, 65 L. J. Ch. 74. 
 
 u 2
 
 292 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 60. trustee in his place in (inter alia) the event of his desiring 
 to retire. This mode of retiring necessitates the appoint- 
 ment of a new trustee in the place of the one retiring. No 
 question, however, can ever arise as to the costs of such an 
 appointment inasmuch as ex hypothesi the power provides 
 for the retirement of the trustee if he so desires. The costs, 
 therefore, in such eases always fall on the estate and not on 
 the retiring trustee. At one time such powers could only 
 exist under the express provisions of the settlement ; but for 
 many years past such powers have been implied by statute 
 in all trust instruments irrespective of the date at which 
 they first came into operation (o), and will be discussed in 
 the next article. 
 
 Retirement 
 under statu- 
 tory power 
 without 
 appointment 
 of successor. 
 
 Retirement 
 hy consent 
 of all the 
 beneficiaries. 
 
 2. Before 1882 a trustee could only be discharged without 
 the appointment of a successor in two cases, viz., (1) by 
 the consent of all the beneficiaries (as to which see, infra), 
 or (2) by order of the court which had (and still has) juris- 
 diction in a proper case to discharge one of two or more 
 trustees without appointing a person to succeed him {2^)> 
 although it is apprehended that since the Judicial Trustees 
 Act, 1896, the power would not be exercised. 
 
 However, parliament has now provided that "if, and so 
 far as a contrary intention is not expressed" in the trust 
 instrument, where there are more than tivo trustees, and 
 one of them declares by deed that he is desirous of being 
 discharged, 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 (5). 
 
 3. The method of retirement by consent of all the benefi- 
 ciaries is merely a corollary of the rule in Saunders v. Vauticr, 
 discussed supra, p. 279. The beneficiaries collectively being 
 the sole owners of the property and able to put an end to 
 the trust, can a fortiori permit the trustee to retire. 
 
 ((,) TruHtco Act, 1S93 (.% & rtl Vict. c. 53), a. 10. 
 (/>) See lie. Stokrx, 13 l<;(i. 3.33. 
 (7) Trustee Act, 1893, s. 11.
 
 EETIEEMENT OR EEMOVAL OF A TRUSTEE. 293 
 
 4. Eetirement by order of the court is now a comparatively Art. 60. 
 rare method of retirement from a trust. It might arise ^ . 
 
 xij6tirGTnGiiti 
 
 where the trustee wishes to retire and either cannot procure ^,y order of 
 a person to take his place, or being himself the appointing the court, 
 party, has a dispute with his beneficiaries in relation to the 
 person to be appointed, or the persons to appoint are out of 
 the country or cannot be found (r). In such cases he would 
 be justified in issuing an originating summons under 
 Order 54 b, r. 5, of the Eules of the Supreme Court for the 
 appointment of a new trustee in his place. No doubt it was 
 formerly considered that a trustee could not retire from his 
 trust without some good reason, and that " if the circum- 
 stances 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 (s). 
 But this was long before the statutory power which enables 
 a trustee to retire if desiroits of being discharged ; and it is 
 conceived that now a trustee would be not only exempt from 
 bearing the costs of an application 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 {t) ; 
 anyhow, it is the common practice. 
 
 Illusteations of Paragraph (2). 
 
 For illustrations of circumstances which justify the 
 removal of trustees the vendor is referred to the illustrations 
 to Art. 61, infra. 
 
 (r) See Re Humphrey, 1 Jur. (n.s.) 921; and Re Somerset, W.N. 
 (1887), 122. 
 
 (s) Forshaiv v. Higgmson, 20 Beav. 485. 
 
 (t) See Coventry v. Coventry, I Kee. 758 ; Greemvood v. Wakeford, 
 1 Beav. 581; Re Stokes, 13 Eq. 333 ; and Barker v. Feile, 2 Dr. & S. 
 340.
 
 294 THE ADMINISTRATION OF A TRUST. 
 
 Art. 61. 
 
 Art. 61. — Ai^jjointment of Neiv Trustees (u). 
 
 (1) New trustees of a settlement may be 
 appointed — 
 
 (a) under an express power ; 
 
 (b) under the statutory power conferred by 
 
 sect. 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 (x) ; 
 
 (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 (jj), when- 
 ever it is found inexpedient, difficult, or 
 impracticable to appoint a trustee with- 
 out 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 bank- 
 rupt (z), or is a lunatic or person of 
 unsound mind. Where, however, there 
 is a donee of a power of appointing new 
 trustees able and willing to exercise it, 
 
 {u) The appointment of a judicial trustee is treated of separately in 
 Art. 69, infra. 
 
 (x) J{e S'korlrid'ie, [189")! 1 Ch. 278. 
 
 ()/) Trustee Aci, 1S9.S (.16 & 51 Vict. c. .l.S), s. 36, and Lunacy Act, 
 IHlk) (."»3 Vict. c. f)), K. 141. Tlie court can cliarge the costs of such 
 appointment and of vesting orders, on the trust estate (Trustee Act, 
 1H9.3, ,s. 38). 
 
 (z) Trustee Act, 1893, s. 25.
 
 APPOINTMENT OF NEW TRUSTEES. 295 
 
 the court has no power to appoint a Art. 61. 
 trustee contrary to his wishes (a). 
 
 (2) On any appointment, unless expressly for- 
 bidden by the settlement, the number may be 
 increased or diminished (b) ; but a retiring 
 trustee will not be discharged by the appoint- 
 ment of a new trustee out of court, unless, on his 
 retirement, there will be at least two trustees to 
 perform the trust (c), or unless only one was 
 originally appointed. The court 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 (d). 
 
 (3) Every new" trustee, both before and after 
 the trust property is vested in him, has the same 
 powers, authorities and discretions, and may in 
 all respects act as if he had been an original 
 trustee. 
 
 (4) Any person 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 w4io resides out of the jurisdiction of the 
 
 (a) Be Higginhottom, [1892] 3 Ch. 132. But this does not relate to 
 applications for the appointment of a judicial trustee under the Judicial 
 Trustees Act, 1896, as to which see Art. 69, infra, and Douglas v. 
 Bolam, [1900] 2 Ch. 749. 
 
 (6) Where the apj)ointment is made under an express power, see 
 Memertzhagen v. Davis, 1 Coll. 335 ; Miller v. Priddon, 1 D. M. & G. 
 335 ; Re Bathurst, 2 S. & G. 169. Where it is made under the statutory 
 power, see Trustee Act, 1893, s. 10. 
 
 (c) Trustee Act, 1893, s. 10. This seems to modify the decision of 
 Fry, J., in West of England Bank v. lUurrh, 23 Ch. D., at p. 146. 
 
 (d) Be Gardiner, 33 Ch. D. 590 ; Duvies v. Hodgson, 32 il>. 225 ; Be 
 Lambe, 28 ib. 77 ; Be Harford, 13 ib. 135 ; Be Martyn, 26 ib. 745 ; Re 
 Aston, 23 ib. 217 ; Be Toutt, 26 ib. 45 ; but see Be Fou-ler, W. N. (1886), 
 p. 183, and Be Leon, [1892] 1 Ch. .348, where the Lunacy Court made an 
 order vesting the trust estate in three of the original four trustees, the 
 fourth having become lunatic, and Be Lees, [1896] 2 Ch. 508, and Be 
 Fitzherbert, W. N. (1898), 58, to same eflfect.
 
 296 THE ADMINISTEATION OF A TRUST. 
 
 Art^l. court ; nor one who is a beneficiary, or husband 
 of a beneficiary. The donee of a power of ap- 
 pointing new trustees cannot appoint himself (e). 
 
 Illustrations of Paragraph (1) (a). 
 
 Appointment 1. Express powers to appoint new trustees are construed 
 trustees somewhat strictly. Thus, where an express power to 
 
 under express appoint new trustees is vested in "the surviving or con- 
 power, tinning 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 (/). 
 "Continuing This singular instance of verbal subtlety all turns upon the 
 
 trustees or i(Jea, that trustees who are about to retire cannot he said to 
 trustee. . . 
 
 he continuing (g), 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 (/). 
 
 "Unfit and 2. So, again, the words "unfit and incapable" are very 
 " incapable," strictly construed. Thus, where a new trustee was to be 
 to act," or appointed if a trustee became incapable of acting, it was- 
 going abroad, held that the bankruptcy of one of the trustees did not fulfil 
 the condition, as it only rendered him unfit but not incap- 
 
 (e) Skeata v. Allen, .37 W. R. 778 ; Skeats v. Evans, 42 Ch. D. 522 j 
 Re Newen, Newen v. Barnes, [1894] 2 Ch. 297. 
 
 (/) Lord Camoys v. Bent, 19 Beav. 414 ; Re Coates and Parsons, 
 34 Ch. 1). .370 ; Re Norrifi, 27 Ch. D. 33.3. Tliis notion was strongly 
 disapproved by Bacon, V.-C, in Re Ohnny and Hartley, 25 Ch. D. 
 611 ; nut the Vice-Chancellor's diclawere equally strongly disapproved 
 by I');Aii,S().v, J., in Re Xorris, supra, and by NoKTii, J., in Re Coates 
 awl J'arxons, xupra. 
 
 {</) With regard to appointments made under the statutory power, 
 this is not so, as the statute enacts that a continuing trustee shall 
 include a njfusing or retiiing trustee, (f iri//iiiij to art, as donre of the 
 powrrr (Trustee Act, 1893. s. 10 (4) ) ; l)ut he is not a necessary party if 
 unwilling to act (see Re N'orrin, Allen v. Norris, 27 Ch. D. 333).
 
 APPOINTMENT OF NEW TRUSTEES. 297 
 
 able (h). And so where the words were "unable to act," it Art. 61. 
 was held that absence in China or Australia did not disable (i), 
 although it clearly unfitted {k), 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 be sufficient to enable 
 the donee of the power to displace him [I). So, it has been 
 held that lunacy disables a trustee so as to bring a power 
 into operation (m). 
 
 With regard to a trustee becoming unfit to act, bankruptcy 
 (at all events where the trust property consists of money or 
 other property capable of being misappropriated, and where 
 the cestuis que trusts desire his removal (^i), and liquidation 
 or composition [n), or conviction of a dishonest crime (o), 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 unfitness seems 
 questionable. Anyhow, it has been held that infancy is not 
 unfitness, although an infant will be removed by the court ( p). 
 Lastly, with regard to incapacity, the word is strictly 
 limited to incapacity of the trustee arising from some 
 personal defect [q), as illness, lunacy (r), or, possibly, 
 infancy. 
 
 3. Where the power is vested in a tenant for life he may Power per- 
 exercise it even after alienating his life estate (s). On the i'°ciJient*^to^°* 
 other hand, where a decree for administration by the court donee's 
 
 estate. 
 
 (h) Turner v. Ifaule, 15 Jiir. 761 ; see Be Watts, 9 Hare, 106. 
 
 (i) Withington v. Wifhington, 16 Sim. 104 ; Be Harrison, 22 L. J. Ch. 
 69 ; but see Be Bignold, 7 Ch. App. 22.3. 
 
 (h) Mennard v. Welford, 1 Sm. & G. 426. A mere temporary 
 absence abroad would not unfit a trustee for the office {Be The Moravian 
 Society, 4Jur. (n.s.) 703. 
 
 (I) Be Lord Stamford, Payne v. Stamford, [1896] 1 Ch. 288. 
 
 \m) Be East, 8 Ch. App. 735. 
 
 (n) See Be Barker, 1 Ch. D. 43 ; Be Adams, 12 Ch. D. 634. 
 
 (o) Turner v. 3faide, 15 Jur. 761. 
 
 {p) Be Tallatire, W. N. (1885), p. 191. 
 
 (g) See Be Watts, 9 Hare, 106 ; Turner v. Maide, 15 Jur. 761 ; Be 
 Bignold, 7 Ch. App. 223. 
 
 (r) Be East, 8 Ch. App. 735 ; Be Blake, W. N. (1887), p. 173. 
 
 (5) Hardaker v, Moorhouse, 26 Ch. D. 417.
 
 298 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 61. has been made, the donee of a power (whether express or 
 statutory) can only appoint a new trustee under the super- 
 vision of the court, which will, however, accept his nominee, 
 unless there be strong grounds for rejecting him (t). 
 
 Appointment 
 of new 
 trustees 
 under the 
 statutory- 
 power. 
 
 Illustration of Paragraph (1) (b). 
 
 If there be no express power, or even if there be one 
 and the statutory power is not expressly negatived or 
 modified (-zt), and the express power is for some reason 
 inapplicable to the state of circumstances that has arisen, 
 new trustees may be appointed under the provisions of s. 10 
 of the Trustee Act, 1893 (56 & 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 exer- 
 cise the express power, but the surviving or continuing 
 trustees or trustee, or the personal representatives of the 
 last surviving or continuing trustee {v). 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 court or otherwise, is dead, or remains out of the 
 United Kingdom for more than twelve months, or desires to be dis- 
 charged 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 any, creating the 
 trust (x), or if there is no such j^erson, or no such person able and 
 willing to act, then the surviving or continuing trustees or trustee 
 for tlic lime being, or the ])ersonal re])resentatives of the last surviving 
 
 (0 Ihi Oadd, KitMwood v. Clarlr, 23 Ch. 1). i;U; lit Hall, Hall v. 
 Hull, :v.\ W. 11. GOS. 
 
 (7/) L'tril V. LatH/dou, 28 Ch. 1). 1 ; Be Lloyd, 27 L. J. Cli. 246; and 
 lik Whi'deravddc.'Uorhoir, |lS!)(i| 1 Cli. 315. 
 
 (v) Jit Whadcr and, dc Jior/toir, supra. 
 
 {.'•) Wlicrc there was no c^xpress ])ovver but merely a aeelaration in a 
 in.iiti;i;^'(! settlenuMit tliat tlic husband and wife and the survivor of 
 tlicrii should liiivo ])()wer to appoint new trustees, it was lield that they 
 fioiild exercise tiiis Htatutory ))ower as tlie persons nominated for the 
 pmiJOHc, etc. (Jlc Wallctr and JIuijhtti, 24 Ch. D. 698).
 
 APPOINTMENT OF NEW TRUSTEES. 299 
 
 or continuing trustee (?/), may, by writing, appoint another person Art. 61. 
 or other persons to be a trustee or trustees in tlie 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 (z) for the whole or any 
 part of trust property — 
 
 (a) the number of trustees may be increased ; and 
 
 (b) a separate set of trustees may be appointed for any part of the 
 
 trust property held on trusts distinct from those relating to 
 any other part or parts of the trust property, notwith- 
 standing that no new trustees or trustee are or is to be 
 appointed for other parts 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 originally appointed, 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 
 
 {y) This includes the executor of a sole trustee (Be Shafto, 29 Ch. D. 
 247), but not the executor of a person who was nominated trustee of a 
 will but died before the testator (Nicholson v. Field, [1893] 2 Ch. .511 ; 
 but cf. Re Amhler, 59 L. T. 206). 
 
 (z) These words govern the whole sub-section, so that the number of 
 trustees cannot be increased unless there be a vacancv to be filled up 
 (Re GregsoH, 34 Ch. D. 209 ; Re Driver, 19 Eq. 352).
 
 300 
 
 THE ADMINISTEATION OF A TRUST. 
 
 Art. 61. 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 effect subject to the terms of that instrument and to any 
 provisions therein contained. 
 
 (6.) This section applies to trusts created either before or after the 
 commencement of this Act. 
 
 Where 
 donees of ex- 
 prcHH power- 
 differ, the 
 statutory 
 power JH 
 available. 
 
 This section (which is a re-enactment of s. 31 of the Con- 
 veyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41)) 
 has put an end to many questions which formerly presented 
 much difficulty. 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 (a). Now, however, twelve months 
 is specified as the period (6). It will be seen that the power is 
 exercisable in six cases, viz. : (1) on the death of a trustee ; 
 
 (2) were 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. The first three cases require no com- 
 ment. With regard to the case of a refusal to act, it is 
 apprehended that it clearly extends to the case of a dis- 
 claimer — i.e., to a case where the person nominated trustee 
 has never accepted the office (c). With regard to a trustee 
 becoming unfit to act or incapable of acting, the reader is- 
 referred to Illustration 2, p. 296, supra. 
 
 Where there are joint donees of a power of appointment 
 named in the settlement, and they differ as to the person 
 to be appointed, they will be deemed to be " unable or 
 unwilling " to appoint, so as to vest the statutory power in 
 the surviving or continuing trustees {d). Lastly, it may be 
 observed that the statutory power is not imperative, and 
 imposes no obligation on the donee of the power to appoint 
 
 («) See Ih Harrison, 22 L. J. Cli. (iO ; Ue monoid, 7 Cli. App. 223. 
 {li) Jiiitit inuHt be !ui iiiihiokuii ])ciii)(l of twelve niouLlis (Re Walker, 
 SxmimdH v. liiirrow, |1!H»IJ 1 Cli. 2,")!)). 
 (r) See li<: llwlUy, r> l)e (1. & Sin. (57. 
 (d) lie Sheppard, W. N. (1888), p. 234.
 
 APPOINTMENT OF NEW TRUSTEES. 301 
 
 new trustees (e) ; and by s. 47 applies to trustees for purposes Art. 61. 
 of the Settled Land Acts. 
 
 Illustrations of Paragraph (1) (c). 
 
 1. Where the power of appointing new trustees is vested Power vested 
 in a person who is lawfully detained as a lunatic, or where gxercisaWe 
 the power is only exercisable with the consent of that person, with consent 
 the proper course is to apply to the Masters in Lunacy by °^ ^ lunatic, 
 summons to appoint a person to exercise the power or to 
 
 give the required consent on behalf of the lunatic (/). The 
 master who makes the order has also jurisdiction, under 
 s. 129 of the Lunacy Act, 1890 (53 Vict. c. 5), to make an order 
 vesting the property in the new trustees when appointed (g). 
 
 2. Thus, where a sole surviving trustee was a person law- Advantage 
 fully detained in an asylum and was the person to exercise °f ^^^^ Y^^°- 
 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 the court has no jurisdiction to appoint 
 new trustees and make a vesting order under ss. 135 to 
 142 of the Lunacy Act in the case of lunatics not so found 
 if the alleged lunatic appears. But 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). As will be seen later on (p. 317, infra), 
 where the lunatic is not the appointing party, this sim.ple 
 method of vesting the property in the new trustees is not 
 available, and so far as it is in the lunatic, and cannot be 
 got out of him by a vesting declaration under s. 12 of the 
 Trustee Act, 1893 (56 & 57 Vict. c. 53), a petition to the 
 Lunacy Court may have to be resorted to. 
 
 (f ) Peacock V. CoUing, 3.S W. R. 528 ; Be Knight, 26 Ch. D. 82. 
 
 ( f) Be Fuller, [1900] 2 Ch. .551 ; Be Shortridge, [1895] 1 Ch. 278 ; and 
 s. 128 of the Lunacy Act, 1890. 
 
 (g) Be Fuller, supra ; but not where the new trustees are ajipointed 
 in any other way, in which case application for a vesting order must be 
 made to the court, as to which, see infra, p. 317.
 
 302 
 
 THE ADMIXISTEATIOX OF A TRUST. 
 
 Art. 61. 
 
 Appointment 
 of new 
 trustees by 
 the coiut. 
 
 Illusteatioxs of Paeageaph (1) (d). 
 
 1. The power of the High Court to appoint new trustees- 
 is now contained in the Trustee Act, 1893 (56 & 57 Vict, 
 c. 53). The Lunacy Court has, however, concurrent juris- 
 diction to appoint a new trustee where an existing one is a 
 Itmatic, whether so found or not (h) ; and, as the High 
 Coiu't has no jurisdiction to make a vesting order as to 
 property vested in a lunatic trustee (whether so found or 
 not), unless he be an infant, the proper course, where a 
 vesting order is required, is to apply to the Lunacy Court, 
 and not to the High Court (/). The following are the 
 statutes relating to the appointment of trustees by the High 
 Court and Lunacy Court respectively : 
 
 Statutory 
 power of 
 High Court. 
 
 2. By s. 25 of the Trustee Act, 1893, it is enacted that — 
 
 (1.) The High Court may, whenever it is expedient to appoint a 
 new trustee or new trustees, and it is found inexpedient, difficult, or 
 impracticable 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 
 althougli 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 appointment of a new trustee in substitution 
 lor a trustee who is couvicteel of felony, or is a bankrupt {k). 
 
 (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 continuing trustee than an appointment 
 of new trustees under any jDOwer for that purpose contained in any 
 instrument would have operated. 
 
 (3.) Nothing in this section shall give power to appoint an executor 
 or administrator. 
 
 And by s. 37 of the same Act, it is enacted that — 
 
 Every trustee appointed b}-a court of comi^etent jurisdiction shall^ 
 as well Ijcfore as after the trust property becomes by law, or by 
 a.ssurance, or otherwise, vested in liim, liave the same powers, authc- 
 ritie.s, and discretions, and may in all respects act as if he had been 
 
 (h) Lun.iry Act, 1S90, ss. 141 — 14;}. 
 
 {/) /.'' M., (1S<I!)| 1 Cli. 7!). 
 
 {k) Tlie jfrotedurc l^y originating summons is applicable even where 
 the incriminated trustee refuses to retire (He JJanson, 48 W. R. 
 73).
 
 APPOINTMENT OF NEW TRUSTEES. 30)3 
 
 originally appointed a trustee by the instrument, if any, creating Art. 61. 
 the trust. 
 
 3. Section 141 of the Lunacy Act, 1890 (53 Vict. c. 5), is Statutory 
 £ 11 power of 
 
 as follows : i^^^^^^y 
 
 In every case in which the Judge in Lunacy has jurisdiction to "^^"^ • 
 order a conveyance or ti-ansfer of land or stock or to make a vesting 
 order, he may also make an order a^jpointing a new trustee or new 
 trustees. 
 
 Sections 135 and 186 in effect provide that the judge 
 may make vesting orders whenever a lunatic is solely or 
 jointly seised or possessed of any land upon trust or by 
 way of mortgage or is solely or jointly entitled to any stock 
 or chose in action upon trust or by way of mortgage. 
 
 i. It will be perceived that application should only be Examples 
 made to the court to appoint new trustees in cases where, ?^ '^yi^li^ 
 from some reason or other, it is difficult, inexpedient, or application 
 impracticable to appoint them under an express power, or t° court is 
 the statutory power ; and if such an application be made 
 unnecessarily, it will be dismissed with costs. 
 
 5. However, there are many cases in which it is im- 
 possible 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 so, 
 as the Land Transfer Act, 1897 (60 & 61 Vict. c. 65, s. 1 (3)), 
 enables letters of administration to be granted in respect of 
 real estate alone. And so where a trustee has become, 
 through old age and infirmity, incapable of acting in the 
 trust, the court has exercised its jurisdiction of appointing 
 new trustees (Z). 
 
 6. Again, where, by inadvertence, or by reason of dis- Appointment 
 
 claimer, death or otherwise, there never were any original ^y court 
 ' p where no 
 
 trustees of the settlement, and no express power of original 
 
 appointing any, the court will appoint some (m). trustees. 
 
 (I) Be Lemann, 22 Ch. D. 633 ; Be Phelps, 31 Ch. D. 251. 
 
 (?k) Dodkinv. Brunt, 6 Eq. 580 ; D'Adhemary. Bertrand, 35 Beav. 19 ; 
 Be Smirtlnvaite, 11 Eq. 251 ; Be Davis, 12 Eq. 214 ; Be Moore, 
 McAlpine v. Moore, 21 Ch. D. 778 ; Be Williams, 36 Ch. D. 231.
 
 304 THE ADMINISTRATION OF A TRUST. 
 
 Art. 61. 7. So, where a trustee is an infant, the court will appoint 
 
 another in his place ; but this will be done without pre- 
 b c°iu-t™^"^ judice to any application by the infant, on coming of age, 
 where trustee to be restored (n). 
 an infant. 
 
 Appointment 8. So, if there is a doubt whether the statutory (or an 
 by court express) power applies, the court will solve it by appointing 
 
 111 CtlSGS OI 
 
 doubt. new trustees itself (o). 
 
 Appointment 9. So it has been held that where the power of appointing 
 
 by court ^g^ trustees was given to a husband and wife iointly, and 
 
 where donee . J^ J* %. . 
 
 of power they were judicially separated, and the husband was living 
 
 abroad. [-^ Australia, it was a case in which it was "difficult or 
 
 impracticable" to appoint new trustees, without the assist- 
 ance of the court, so as to give the latter jurisdiction {2^). 
 
 Appointment 10. So, where the persons to whom the power of appoint- 
 where^he i^ient has been confided cannot agree upon the choice of the 
 donees of new trustees, the court will appoint. But see as to this, 
 power cannot ^^ 3qq_ 
 
 agree. -^ ' -^ 
 
 Appointment 11. Where a trustee is a felon, or a bankrupt, and refuses 
 
 by court ^^ • ^^^ -^^ ^j^^ appointment of a new trustee in his place, the 
 where trustee ■' ^^ . ^ ' 
 
 a felon or court can and will remove him, and appoint another person 
 
 bankrupt. jf ^j^^g cestuis que tmsts desire it (g) ; and a similar observation 
 
 applies to a trustee who has become a lunatic [r), or has 
 
 gone to reside permanently abroad (s), or has absconded. 
 
 •Summary 12. The regular procedure for the appointment of new 
 
 procedure trustees by the court under the statutory jurisdiction, is by 
 cable' where originating summons (^) ; but it would seem that where the 
 trust is clear, trust is not clear on the face of written documents {e.g., 
 where a conveyance is taken in the name of some other 
 
 (n) lio. Shdmcrdwr, :i3 L. J. Cli. 474. 
 
 (o) y.'e Wood'ialt, .') W. H. 44S. 
 
 {/>) lie. Smw'.rml, W. N. (1S,S7), p. 122. 
 
 (7) Coomhtx y.Miroohcx, 12 JO(j. (51 ; lie, Adam.^, 12 Ch. D. 634 ; Jie 
 FoHU'.r, r)r, L. T. 499 ; /.'e Damon, 48 W. R. 73. 
 
 (r) If a vcHtiug order is also re(|uired the aj)]ilication nnist be made 
 to the Lunacy Court (lif M., |1899| 1 (Jli. 79), uidess the lunatic is out 
 of the, jurisdiction (AV (.'iirdlvr, ]{) VAi. I). 2!»). 
 
 {«) A'' /ili/ii«/d., 7 ('li. Apj). 223. As to the length of absence abroad, 
 see J/ iitr/i ill-son v. Sft/i/tciis, f) Sim. 499. 
 
 (/) it. S. (J. Order .'54. I'^ven whore the trustee wliotu it is desired to 
 (iJHplaco opposes (Re Danaoii, mqtra).
 
 APPOINTMENT OF NEW TKUSTEES. 305 
 
 person than the real purchaser [u), the court first requires Art. 61. 
 the trust to be estabHshed to its satisfaction, and that can 
 only be done by an action. 
 
 13. It was at one time thought that where there were Court will not 
 properly appointed trustees in existence, and it was impos- gxistint;"^ 
 sible otherwise to vest the trust property in them, or where trustees, 
 it was desirable to remove one of several trustees and 
 impossible to get anyone to serve in his place, the court 
 could, in the one case, re-appoint all the existing trustees 
 and order the trust property to vest in them ; or, in the 
 other case, re-appoint 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 re-appoint existing trustees (x). 
 
 a. Although the statutory power of increasing the Court can 
 ,»,, •j.j.j.iT i. increase the 
 
 number oi trustees on an appomtment out oi court, can j^^^^j^il^gj. ^^^ 
 
 only be exercised when there is a vacancy to be filled up, any time. 
 
 yet there is no such limitation on the power of the court to 
 
 increase the number of trustees at any time if it should be 
 
 deemed expedient (t/). 
 
 15. Although s. 25 (3) of the Trustee Act, 1893 (56 & Appointing 
 57 Vict. c. 53), expressly prohibits the court from appointing perform the 
 an executor or administrator, yet where a testator has not duties inci- 
 appointed a trustee of trust legacies, and where, conse- ^f ^xecutor^^ 
 quently, the trusteeship is incident to the office of executor, 
 the court has jurisdiction on the death of the executor to 
 appoint someone to perform those fiduciary duties (z). 
 
 Illusteations op Paragraph (2). 
 
 1. In selecting persons to be new trustees, the court acts Ceneral 
 upon the following principles, and it is apprehended that ^"to persons 
 
 proper to be 
 
 (h) Be Martin's Trusts, W. N. (1886), p. 183 ; and see also Be appointed 
 Carpenter, Kay, 418 ; and Be Weeding, 4 Jur. (n.s.) 707. new trustees 
 
 (x) Re Vicat, 33 Ch. D. 107 ; Be Dewhirst, ih. 416 ; Be Gardner, 
 ih. 599 ; Be Batho, 39 ih. 189 ; overruling Be Bathhone, 2 Ch. D. 483 ; 
 Be Dalgleish, 4 ih. 143 ; and Be Crowe, 14 ih. 610. 
 
 (y) Be Gregson, 34 Ch. D. 209 ; and see Re Driver, 19 Eq. 352. 
 
 (z) Be Moore, McAJpine v. Moore, 21 Ch. D. 778 ; Be Lord Stamford, 
 Payne v. Stamford, [1896] 1 Ch. 288 ; and see Trustee Act, 1893 (56 & 
 57 Vict. c. 53), s. 50 (interpretation of " trust " and "trustee)." But 
 cf. Eaton v. Daines, W. N. (1894) 32.
 
 806 THE ADMINISTRATION^ OF A TRUST. 
 
 Art. 61. donees of powers ought to be guided by the same considera- 
 tions, 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 
 expressed in, or plainly deduced from the settlement. 
 
 Secondly, a person will not be appointed with a view to 
 the interest of some of the beneficiaries in opposition to the 
 interest of others. 
 
 Thirdly, regard will be had to the question whether the 
 appointment will promote or impede the execution of the 
 trust ; but (sevible) 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 appointing 
 him (a). 
 
 Persons 2. With reference to the question as to the personal 
 
 appofnt-d ^^ fitness of a proposed new trustee, an infant can, no doubt, 
 ncM- trustees, be appointed an original trustee, but it would not be a wise 
 appointment ; and a retiring trustee most certainly 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 improbably find that he would have to pay 
 the costs of an action instituted for the purpose of removing 
 the infant (b), as he cannot be supplanted as " unfit " by the 
 appointment of a new trustee under s. 10 of the Trustee 
 Act, 1893 (56 ct 57 Vict. c. 53) (c). 
 
 Appointment 3. A tenant for life has been held to be a not improper 
 appointment (d) ; but it certainly is not 
 For one of the main objects of a truste( 
 remainderman against the tenant for life. 
 
 of tenant for appointment (il) ; but it certainly is not an advisable one. 
 triLstee ^'^^ °^^ ^■^ *^^ main objects of a trustee is to protect the 
 
 Appointnierit i, H has been held (e) that a remainderman is not a 
 
 man " ^^ person whom the court will appoint, at all events where 
 
 there is an infant tenant for life. For the interest of a. 
 
 (o) Be TempcM, 1 Ch. App. 4S5. 
 
 {h) Sec Ilaike-t v. Jiai/ces, .S.5 lieav. 403. 
 
 (r) J{e Talladrc, W. N. (ISS.!), j). 191. 
 
 (d) Forsttrv. Abraham, 17 Ki]. 3.51. 
 
 (e) Re Paine, 33 W. R. 564.
 
 Single Conrt. ^. J 
 
 I Y'CTL-^ Before Idinirton, J.'^'^^^-^S' 
 Hamraond v. Interstate Consolidated , 
 Mineral Co. — ^Judgment (oral) on mo- 
 tion (heard j-esierday) to have it de- 
 clared that Huiiburt L. Phillips, de-: 
 ceased, was seized of certain lands as! 
 trustee and for the appointment of one, 
 Blaokstone, resident in Jamestown, 
 X.T., as a trustee in place of the said 
 Phillips. HeJiL_jJmt_the__j5lajnjaff_tm 
 rvg^^jnade__auj__a^_£ase__^or_tiieajjp o i ■ 
 inenx_,of_a^3^££is5^£_3jjruiT^ 
 ljflliwloJxWcs> It 2s_on^iun_veryexcep- 
 .onaJ ,_4JL::i;jjrns_taiK£Sr!tlmF^ucK an ap- 
 lS)jintiTiejai_ji;iJXJ2P_313^. an<i sucITTir- 
 cumsTances do not seem to exist here, j 
 Judgment for plaintiff declaring the j 
 trust as asked in the statement of 
 claim and a subsequent application 
 maj- be made for the appointment of a 
 new trustee, or plaintiff may have 
 libertj- to put in further material and 
 motion may stand in meantime. Casey 
 Wood for plaintiff. "W. R. P. Parker 
 for defendants.
 
 APPOINTMENT OF NEW TRUSTEES. 307 
 
 person entitled in remainder is somewhat opposed to that Art. 61. 
 of a tenant for Hfe ; and it would be for his advantage to 
 lay out trust money in making improvements on the pro- 
 perty, 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 appointment. 
 
 5. The solicitor to the trust is not a proper person to be Appointment 
 appointed a new trustee. Such an appointment would not, °^ solicitor to 
 however, be bad, so as to invalidate the acts of the trustee 
 
 so appointed ; but the court would not make, or sanction, 
 such an appointment (/). 
 
 6. The husband of a beneficiary entitled for her separate Husband of 
 use ought not to be appointed ; for his interests are entirely '^eueficiary 
 in conflict with those of his wife. The court will never trustee. 
 make such an appointment unless it is impossible to get 
 another person, and even then will generally do so only 
 
 upon condition that a direction is inserted in the order, 
 stipulating that, upon his becoming sole trustee, there shall 
 be another appointed (g). In one case (/i), Kay, J., ap- 
 pointed two persons, one of whom was a beneficiary, and 
 the other the husband of a beneficiary, upon their both 
 undertaking, if either were left sole trustee, to endeavour 
 to obtain the appointment of a new trustee. 
 
 7. It is not proper to appoint a trustee who resides out of Person out of 
 the iurisdiction, save under very exceptional circum- jurisdiction 
 stances (i). But where all the beneficiaries were resident trustee. 
 
 in Australia, the court appointed a person resident 
 there {k). 
 
 8. An alien may, since the passing of the statute 33 & Appointing 
 34 Vict. c. 14, hold real estate, and may therefore, it is alien trustee. 
 apprehended, be either a settlor or a trustee, although the 
 
 (/) i?e Norris, 27 Ch. D. 333, and He Lord Stamford, Payne v. Stam- 
 ford, [1896] 1 Ch. 288. 
 
 (g) Be Parrott, 30 W. R. 97. 
 
 (h) Re Lighthody, 33 W. R. 452. {i) Re Curtis, 5 Eq. 422. 
 
 (k) Re Freeman, 37 Ch. D. 148 ; Re Lidiard, 14 Ch. D. 310 ; Re Cunard, 
 10 Ch. D. 29 ; Re Austen, 38 L. T. 601 ; Re Hill, W. N. (1874), p. 228. 
 
 X 2
 
 308 THE ADMINISTEATION OF A TEUST. 
 
 Art. 61. court usually objects to appoint one unless he be perma- 
 nently domiciled in England. 
 
 Appointment 9. A married woman may undoubtedly be a trustee (Z), 
 of married j-j^^^j gj-^g jg ^^q^ g^ desirable person for the office, at all events 
 woman. ^ , • 
 
 where real estate is concerned. JNo doubt she can exercise 
 
 powers collateral, or in gross, or appendant {m) ; but she can 
 only execute a trust to sell real estate (or sevible chattels 
 real, unaccompanied by a power of appointment), with her 
 husband's consent and joinder. For the Married Women's 
 Property Act, 1882 (45 & 46 Vict. c. 75), does not apply to 
 land vested in a married woman as trustee (?z.), and conse- 
 quently she can only convey it with the joinder of her 
 husband, and by an acknowledged deed. And it is appre- 
 hended, that even where a ])oiver is vested in her to sell, she 
 would not be capable of entering into a binding contract to 
 execute the power, as it is no question affecting her separate 
 estate (o). Moreover, the necessity of getting her husband's 
 joinder (which he might possibly withhold), the expense of 
 acknowledgments, and the probability that the trust will be 
 really executed by her husband, and not by herself, makes 
 a married woman a far from desirable trustee in most cases. 
 Some judges have even objected to appoint spinsters as 
 trustees ( jj) . 
 
 Appointmeui 10. Lastly, the court will not appoint (nor ought the 
 
 of a trust donees of a power to appoint) an incorporated company 
 
 company. nri 5. , r j 
 
 formed for the pui-pose ot acting as a trustee [qj. 
 
 {I) Smith V. Smith, 21 ]?eav. 385. 
 
 (m) Godolphin v. Godolphin, 1 Vcs. sen. 21. 
 
 (?i) i?« Harkness and A/sopp, [1896] 2 Ch. 358. 
 
 (o) Avtry v. Griffin, 6 Eq. 607. 
 
 ip) .See Be Peake, [1894] 3 Ch. 520, where North, J., at first refused 
 to aj)point two ladies, one a widow and one a spinster, tosoUland under 
 the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), hut subsequently 
 relented. In a suhsecfuent case, however {Be Newen, Newen v. JJarncs, 
 [1894 1 2 Ch. 297), Kkkkwich, J., took a more favourable view of the 
 business caj)a})ilitieH of the sex. 
 
 (7) BcJJrofjden, Jiillinij v. Brogden, W. N. (1888), p. 238. 
 
 i
 
 VESTING OF TRUST PROPERTY IN NEW TRUSTEES. 309 
 
 Art. 62. 
 
 Art. 62. — Vesting of Trust Property in netv 
 Trustees. 
 
 (1) On a change in the trusteeship, the trust 
 property should be vested jointly in the persons 
 who are for the future to be the trustees (7^). 
 This may be done : — 
 
 (a) by the ordinary modes of transferring 
 
 property ; 
 
 (b) since the 31st December, 1881, by a vesting 
 
 declaration in the deed by which a 
 trustee is appointed (or by which one 
 retires) under sect. 12 of the Trustee 
 Act, 1893 ; 
 
 (c) where neither of the foregoing means are 
 
 feasible, application may be made, by 
 summons to a judge of the Chancery 
 Division of the High Court of Justice 
 (or, in case of lunacy or unsoundness of 
 mind of the appointor, or of a trustee 
 who is being displaced, to the Lunacy 
 Court) for a vesting order (s). 
 
 (2) On the appointment of a new" trustee by 
 the court, a vesting order will be made, vesting 
 the trust property in the new trustee or trustees, 
 either alone, or jointly with the continuing 
 trustee or trustees, as the case may require. 
 
 Illustrations of Paragraph (1) (b). 
 
 1. Before the year 1882, difficulties frequently arose in Vesting 
 relation to the vesting of the trust property on the appoint- fleclarations 
 
 *=" r- r J X i. Qj^ appoint- 
 
 ment of new trustees, owing to the fact that the legal estate ments out of 
 
 court. 
 
 (r) Trustee Act, 1893, s. 10 (2) (d), and s. 11 (2). 
 
 (s) Trustee Act, 1893 (56 & 57 Vict. c. 53), ss. 26, 32, 34, 35, and 36 ; 
 and as to lunatic trustees, or trustees of unsound mind, Lunacy 
 Act, 1890 (53 Vict. c. 5), ss. 133 — 143. As to simpler procedure.
 
 310 THE ADMINISTEATION OF A TRUST. 
 
 Art. 62. could only be transferred hy the persons in whom it was 
 legally vested, or by a vesting order of the court. For 
 instance, a trustee might leave the countiy permanently, or 
 become a lunatic, or (being a sole trustee) die intestate and 
 without any heir. The legal estate being vested in him, 
 could only be got out of him by a duly executed conveyance 
 or assignment, or by an order of the court ; and as the 
 former could not be obtained, the latter became a matter of 
 necessity. However, by s. 34 of the Conveyancing and 
 Law of Property Act, 1881 (44 & 45 Vict. c. 41), re-enacted 
 by s. 12 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), this 
 difficulty was to a great extent obviated, although not 
 completely ; for it does not apply to all kinds of property, 
 so that apphcations to the court for vesting orders will still 
 have to be made in many cases. 
 
 The section in question is in the following words, 
 viz. : — 
 
 (1) Where a deed by which a new trustee is appointed to perform 
 any trust contains a declaration hy the appointor to the effect that 
 an\' estate or interest in any land subject to the trust, or in any 
 chattel so subject, or the right to recover and" receive any debt or 
 other thing in action so subject, shall vest in the persons who by 
 virtue of the deed become and are the trustees for performing the 
 trust, that declaration shall, without any conveyance or assignment, 
 operate to vest in thosepersons, as joint tenants, and for the purposes 
 of the ti-ust, that estate, interest, or right. 
 
 (2) Where a deed by which a retiring trustee is discharged under 
 this Act contains such a declaration as is in this section mentioned hy 
 the retiring and continuing trustees, and hy the other -person, if any, 
 empowered to appoint trustees, that declaration shall, without any 
 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 
 
 where the lunatic is the person who has power to appoint the new 
 trustee, see unpra, p. 301. The court cannot, however, under this Act 
 make a vesting order where the legal estate in the entirety, and the 
 beneficial interest in part of land, is vested in the Cro\\ni. In such 
 a case the proper procedure is to issue a summons asking for a sale 
 under s. 5 of the Intestates' Estates Act, 18S4 (47 & 48 Vict. c. 71) {Re 
 Pratt, 55 L. T. 313).
 
 VESTING OF TEUST PROPERTY IN NEW TRUSTEES. 311 
 
 for securing money subject to the trust, or to any such share, stock, Art. 62. 
 annuity, or property as is only transferable in books kept by a 
 company or other body, or in manner prescribed 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 con- 
 veying 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 the deed by %vhich the neio trustee is apj^ointed. With 
 regard to 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 w^ithout 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. 
 
 Illustrations of Paragraph (2). 
 
 1. The jurisdiction of the court to make orders vesting Vesting 
 trust property in the trustees for the time being of a settle- j^^ ^j^g"^* ^ 
 ment, is codified in ss. 26, 32, 34, 35, and 36 of the Trustee Chancery 
 Act, 1893 (56 & 57 Vict. c. 53), and as to trustees, who have R^''^^^"" °L 
 
 c T-n- -lor^ior T the COUrt (<). 
 
 become lunatic or of unsound mmd, m ss. 129, 135 and 
 136 of the Lunacy Act, 1890 (53 Vict. c. 5) (u). The 
 sections of the Trustee Act, 1893, above referred to, are as 
 follows : — 
 
 26. In any of the following cases, namely : — Trustee Act, 
 
 (i.) Where the High Court appoints or has appointed a new > • - • 
 
 trustee (x) ; and 
 
 (t) By s. 41 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), this juris- 
 diction extends to land and personal estate in his Majesty's dominions, 
 except Scotland. See Be Hewitt, 6 W. R. 537, and Be Lamotte, 4 Ch. D. 
 325. Similar powers were given to the Irish courts by the Trustee 
 Act, 1893, Amendment Act, 1894. 
 
 (w) See infra, p. 316. 
 
 (x) It is " apprehended that the intention of the legislature was 
 that each of these paragraphs should stand alone, and that the
 
 3.12 THE ADMINISTRATION OF A TRUST. 
 
 Art. 62. (ii-) Where a trustee (y) entitled to or possessed of any land (::)^ 
 
 or entitled to a contingent riglit therein, either solely or 
 
 jointly (rt) with any other person, — 
 
 (a) is an infant (b), or 
 
 (b) is out of the jirrisdiction of the High Court (c), or 
 
 (c) cannot be found ; and 
 
 (iii.) "Where it is uncertain who was the sur^dvor 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 heir or personal representative to a 
 trustee (d) who was entitled to or possessed of land and 
 
 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, ev^en though 
 there was no incapacity in the person in whom the estate was vested to 
 convey it to the new trustees (Be Manning, Kay, App. xx^■iii. ; 
 Hancox v. Spittle, 3 Sm. & Gr. 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 sliow to what the words " the 
 land," which is to be vested, refer. 
 
 iy) The word "trustee" includes a constructive trustee, e.g., the 
 heir of a testator whose trustees have pi'edeceased him or disclaimed 
 ( Wilkes v. Groom, 6 D. M. & G. 205 ; and see Trustee Act, 1893 (56 & 
 57 Vict. c. 53), s. 50. 
 
 (z) It is apprehended that "land" includes leaseholds ; for it was 
 stated in the memorandum 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 
 inchiding 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 leaseholds, except on the appointment of new trustees by the court. 
 The corresponding section of the Liniacy Act, 1890, contains the old 
 words "seised or possessed," and conseijuently it .seems questionable 
 wiicther tlie hniacy judges liave power to make vesting orders of lease- 
 holds. As to whether the court has jurisdiction to vest the right to 
 the title deeds, see De Sayre.s v. De Sayres, 87 L. T. Notes, 93. 
 
 (a) The word "jointly" is not to be construed strictly. It includes 
 coparceners {lie Greenirood, 27 Ch. D. 359). 
 
 {!)) Even if the infant be also a lunatic, this gives the Chancery 
 Divisifjii jurisdiction. See Lunacy Act, 1890 (53 Vict. c. 5), s. 143. 
 
 (r) A iiicrcl\- temi)orary aljsence (e.g., tliat of a sailor on a voj'age) is 
 not .suHieicnt (llntrliiiitioii v. Stephcit.s, 5 Sim. 409). On the other hand, 
 where a jiersou out of tlie jui-isdiction is ;i lunatic, this paragrapli gives- 
 to tlie Cliancery I)ivisi(jn a jurisdiction wiiich in the case of a lunatic 
 in England would be only exercisable by the lunacy judges (Re 
 Oarduir, 10 Ch. 1). 29). 
 
 (d) See Re \ViUi,tm.-<, 50 L. T. 8S4 ; Re Rark-xtraw, 52 il>. 612 ; Rt 
 Pilling, 26 Ch. D. 4.32.
 
 VESTING OP TRUST PROPERTY IN NEW TRUSTEES. 313 
 
 has died intestate as to that land, or where it is uncertain Art. 62. 
 
 who is the heir or personal representative or devisee of 
 
 a trustee who was entitled to or possessed 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 wil- 
 fully (e) refused or neglected to convey 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 (/) as the court may direct, 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 trustee the land shall be vested for such estate as the 
 court may direct in the persons who on the appointment 
 are the trustees ; and 
 
 (b.) Where the order relates to a trustee entitled jointly with 
 another person, and such trustee is out of the jurisdiction 
 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 provisions shall in Trustee Act,, 
 the case of a vesting order consequential on the appointment of a 1893, s. 32. 
 new trustee, have the same effect as if the persons who before the 
 appointment were the trustees (if any) had duly executed all proper 
 conveyances 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 
 
 (e) A trustee's conduct in not conveying cannot be considered wilful, 
 if the title of the applicant to call for a conveyance is subject to a 
 dispute which leads the trustee to entertain a hondjide doubt as to his 
 title (i?e Mills, 40 Ch. D. 14). But if he has acted unreasonably he 
 may have to pay the costs (Be Knox, [1895] 1 Ch. 538). The petition 
 must not be even presented until the twenty-eight days have elapsed 
 (Be Knox, supra). 
 
 (f) Under these words the court can vest the estate of a tenant in 
 tail in a purchaser in fee simple, but it usualty appoints some person to 
 execute a regular disentailing assurance under s. 33. See Caswell v. 
 Sheen, W. N. (1893) 187; and Powell v. Matthews, I Jur. (N.s.)973; 
 Mason v. Maso7i, W. N. (1878) 41.
 
 314 THE ADMINISTEATION OF A TEUST. 
 
 Art. 62. fis 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. 
 
 Trustee Act, 33. In all cases where a vesting order can be made under any of 
 * ' ^^- "^ the foregoing provisions, the High Court may, if it is more con- 
 venient, 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 (g) in any person 
 is made under this Act with the consent of the lord or lady of the 
 mauor, the land shall vest accordingly without surrender or admit- 
 tance. 
 
 (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 to do all other acts for completing 
 the assurance thereof, as if the persons in whose j^lace an appoint- 
 ment 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.) Wlu'ie llu- High Court appoints or has appointed a new 
 trustee ; and 
 
 (ii.) ^Vhere a trustee entitled alone or jointly with another 
 person to stock (/(.) or to a chose in action — 
 (a) is an infant, or 
 
 (7) As to what fines arc payable, see Palerson v. Patcrson, 2 Eq. 31 ; 
 uii(i Hall V. liromlnj, 3."> Cli. "l). (542. 
 
 (Ii) .Sto(;k iiK:hi(li'S fully paid-up shares, and any fund, annuity, or 
 Hocui'ity transfcM-ahlo in IjooUs ke])t by any company or society, or by 
 iiiKtrunient of tfunsfcr, citlicr alone or accompaiiied by other formalities, 
 ami iiny share; or inliu'cst tlHTciii (s. .'">()). Undei' the i-cpcNilcd Act of 
 IK.")((, Ktock iiK^lmicn shanks not fully jjaidun [lie. Ncin Z<(ilaud, etc. Co., 
 I \H'.)'.i\ I (.'h. 4().S) ; but (|U(;ry whctlicr the aoovo definition would admit 
 of Hiicli a const ruftion Ix^inj^ j^ivcn to tiie new Act. As to orders under 
 l.uiuicy Act, 1,S!)0, see h'r (I rrij.'^dii, \ 1S9:{| 3 Ch. 2.33.
 
 TESTING OF TRUST PROPERTY IN NEW TRUSTEES. 316 
 
 (b) is out of the jurisdiction of the High Court (i), or Art. 62. 
 
 (c) cannot be found ; or 
 
 (d) neglects or refuses to transfer stock or receive the 
 
 dividends or income thereof, or to sue for or recover a 
 chose in action, according to the direction of the 
 person absolutely entitled thereto for twenty-eight 
 days next after a request in writing has been made to 
 him by the person so entitled, or 
 
 (e) neglects or refuses to transfer stock or receive the 
 
 dividends or income thereof, or to sue for or recover a 
 chose in action for twenty-eight days next after an 
 order of the High Court for that purpose has been 
 served on him ; or 
 
 (iii.) Where it is uncertain whether a trustee entitled alone or 
 jointly with another i:ierson to stock or to a chose in 
 action is alive or dead (k), 
 
 the High Court may make an order vesting the right to transfer (I) 
 or call for a transfer of stock, or to receive the dividends or income 
 thereof, or to sue for or recover a chose in action, in any such person 
 as the court may appoint : 
 
 Provided that — 
 
 (a) "Where the order is consequential on the appointment by 
 the court of a new trustee, the right shall be vested in 
 the persons who, on the appointment, are the trustees ; 
 and 
 
 {i) See note (s), sripra, p. 304. Where one trustee was a lunatic and 
 the other out of the jurisdiction, and two new ones had been appointed 
 under a power, the Court of Appeal, acting in lunacy, vested the stock 
 in the one out of the jurisdiction, and then, acting under their Chancery 
 jui'isdiction, " it appearing that he was out of the jurisdiction," vested 
 it in the new trustees {Be Batho, 39 Ch. D. 189). 
 
 (k) It will be perceived that, except Mdiere the coiirt is appointing 
 new trustees, it has no jurisdiction to make a vesting order of stock 
 where the last surviving or only trustee has died without leaving a legal 
 personal representative. At one time (as also in the case of leaseholds) 
 the court used to get over this difficulty by reappointing trustees already 
 appointed out of court, and by making a vesting order consequential 
 on such reappointment (Be Bathhone, 2 Ch. D. 483 ; Be DalgJeish, 
 4 Ch. D. 143 ; Be Crowe (No. 2), 14 Ch. D. 610). However, it is now 
 well settled that the court has no jurisdiction to reappoint trustees who 
 are already validly appointed (Be Vicat, 33 Ch. D. 103 ; Be Deirhirst, 
 ih. 416 ; Be Gardner, ih. 590 ; Be Batho, 39 Ch. D. 189). Conse- 
 quently, the former device is no longer available, and a legal personal 
 representative has to be constituted in such cases 
 
 (I) Where the trust funds are invested in unauthorised stocks, the 
 order will give the new trustees, or purchasers from them, the right to 
 call for a transfer, etc. (Be Peacock, 14 Ch. D. 212).
 
 '316 THE ADMINISTRATION OF A TRUST. 
 
 Art. 62. (b) Where the person whose right is dealt with by the order 
 
 was entitled jointly with another person, the right shall 
 
 be vested in that last-mentioned person either alone or 
 jointly with any other person whom the court may 
 appoint. 
 
 (2.) In all cases where a vesting order can be made under this 
 section, the court may, if it is more convenient, appoint some proper 
 person to make or join in making the transfer. 
 
 (3.) The person in whom the right to transfer or call for the 
 transfer of any stock is vested by an order of the court under this 
 Act, may transfer the stock to himself or any other person, according 
 to the order, and the Banks of England and Ireland and all other 
 companies shall obey every order under this section according to its 
 tenor. 
 
 (4.) After notice in writing of an order under this section it shall 
 not be lawful for the Bank of England or of Ireland or any other 
 company to transfer any stock to which the order relates or to pay 
 any dividends thereon except in accordance with the order. 
 
 (5.) The High Court may make declarations and give directions 
 concerning the manner in which the right to any stock or chose in 
 action vested under the provisions of this Act is to be exercised. 
 
 (6.) The provisions of this Act as to vesting orders shall apply to 
 shares in ships registered under the Acts relating to merchant 
 shipping as if they were stock. 
 
 Tnistee Act, 35. — (1.) An order under this Act for the appointment of a new 
 1893, s. 3b. t.I.^gtee or concerning any land, stock, or chose in action subject to a 
 trust, may be made on the application of any j)erson beneficially 
 interested (m) in the land, stock, or chose in action, whether under 
 disability or not, or on the application of any person duly appointed 
 trustee thereof. 
 
 (2.) An order under this Act concerning any land, stock, or chose 
 in action subject to a mortgage may be nuide on the application of 
 any person beneticially interested in the equity of redemption, 
 whether under disability or not, or of any person interested in the 
 money secured by the mortgage. 
 
 Vesting 2. With regard to vesting orders of property held by 
 
 ir'tllr 1" n' c ti^ustces who are lunatics or persons of unsound ramd, 
 jUIlgeMn).''"'^ s. 129 of the Lunacy Act, 1890 (53 Vict. c. 5), enables a 
 
 (m) Tills inohidus a person contingently interested (Re Sheppard, 
 4 1). F. & J. 423), but not the connuittcc of. a lunatic boncticiary 
 {/{('. Bonrlce, 2 I). .1. & S. 42()). 
 
 (n) Ah to what applications nnist i)c iii.idi' in chancery, and what m 
 liniacy, and what in both huiacyund chancery, the reader is referred to 
 " The Annual I'lacticc," notes to Order 16, r. 17, where tho result of 
 the cases is siininiarised.
 
 VESTING OF TRUST PROPERTY IN NEW TRUSTEES. 317 
 
 master in lunacy to make on summons any such vesting Art 62. 
 
 order as the High Court can make under the Trustee Act, 
 
 1893, on the appointment of new trustees, where under s. 127 
 
 of the Lunacy Act, he appoints some person to exercise in 
 
 the name or on behalf of the lunatic any power vested in the 
 
 lunatic of appointing new trustees (o) ; as to which the 
 
 reader is referred to p. 301, siijyra. Where, however, the 
 
 lunatic has not the power of appointing new trustees, but 
 
 the trust property is vested in him, and cannot be got out of 
 
 him by any other means, then a i^ctition must be presented 
 
 under ss. 135, 136 {p), which are in the following words : — 
 
 135. — (1.) When a lunatic {q) is solely or jointly seised or Lunacy Act, 
 possessed of any land upon trust or by way of mortgage the judge 1890, s. 135. 
 in lunacy maj' by order vest such land in such person or persons (r) 
 for such estate, and in such manner, as he directs. 
 
 (2.) When a lunatic is solely or jointly entitled to a contingent 
 right in any land upon trust or by way of mortgage, the judge may 
 by order release such hereditaments from the contingent right, and 
 disjJose of the same to such person or persons as the judge directs. 
 
 (3.) An order under sub-sections (1) and (2) shall have the same 
 effect as if the trustee or mortgagee had been sane, and had executed 
 a deed conveying the lands for the estate named in the order, or 
 releasing or disposing of the contingent right. 
 
 (4.) In all cases where an order can be made under this section 
 the judge may, if it is more convenient, appoint a person to convey 
 the land, or release the contingent right, and a conveyance or release 
 by such person in conformity with the order shall have the same 
 effect as an order under sub-sections (1) and (2). 
 
 (5.) Where an order under this section vesting any copyhold land 
 in any person or persons is made with the consent of the lord or 
 
 (o) Re Fuller, [1900] 2 Ch. 551. 
 
 (p) Re Langdale, [1901] 1 Ch. 3. 
 
 (q) This word includes lunatics not so found (s. 341). As to what 
 the word comprises, see Re Martin, Land, etc. Improvement Co. v. 
 Martin, 34 Ch. D. 618, and Re Barber, 39 Ch. D. 187, and cf. Re 
 Deivhirst, 33 Ch. D. 416. If the lunacy is disputed, the lunacy judges 
 have no jurisdiction to make a vesting order. See Re Cotub-s, 
 51 L. T. 45 ; Re Phi/lips, Cr. & Ph. 147. 
 
 {r) The court will not vest the property in a beneficiaiy who is 
 absolutely entitled, but will appoint a new trustee (Re Holland, 
 16 Ch. D. 672 ; cf. Re Godfrey, 23 ih. 205 ; and Re Currie, 10 Ch. D. 
 93). Where one of several trustees becomes insane, the court will not 
 vest the property in the remaining trustees, even if it has jurisdiction 
 to do so, but a new trustee must first be appointed (Re Nanh, 16 Ch. D. 
 503), unless the fund is immediately divisible (Re Watson, 19 Ch. D. 384, 
 and Re Toutt, 26 Ch. D. 745).
 
 'SIS THE ADMINISTEATION OF A TRUST. 
 
 Art. 62. lady of the manor, such land shall vest accordingly without 
 
 surrender or admittance. 
 
 (6.) Where an order is made appointing any person or persons ta 
 convey any copj'hold land, such person or persons shall execute and 
 do all assurances and things for completing the assurance of the 
 lands ; and the lord and lady of the manor shall, subject to the 
 customs of the manor and the usual payments, be bound to make 
 admittance to the land, and to 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 such 
 assurances and things. 
 
 Lunacy Act, 136. — (1.) "Where a lunatic is solely entitled to any stock or chose 
 
 ' ^' ^ in action upon trust or by way of mortgage, the judge in hinacy 
 
 may by order vest in any person or persons the right to transfer or 
 
 call for a transfer of the stock, or to receive the dividends thereof, or 
 
 to sue for the chose in action. 
 
 (2.) In the case of any person or persons jointly entitled with a 
 lunatic to any stock or chose in action upon trust or by way of 
 mortgage, the judge may make an order vesting the right to transfer 
 or call for a transfer of the stock, or to receive the dividends thereof, 
 or to sue for the chose in action either in such person or persons 
 alone or jointly with any other person or persons. 
 
 (3.) When any stock is standing in the name of a deceased person, 
 whose personal representative is a lunatic, or when a chose in action 
 is vested in a lunatic as the personal representative of a deceased 
 person, the judge may make an order vesting the right to transfer 
 or call for a transfer of the stock, or to receive the dividends thereof,, 
 or to sue for the chose in action in any person or persons he may 
 appoint. 
 
 (4.) In all cases where an order can be made under this gection 
 the judge may, if it is more convenient, appoint some proper person 
 to make or join in making the transfer. 
 
 (5.) The person or persons in whom the right to transfer or call 
 for a transfer of any stock is vested, may execute and do all powers 
 of attorney, assurances, and things to complete the transfer to himself 
 or themselves or any other person or persons according to the order, 
 and the bank and all other companies and their oliicers and all 
 other ])cr8ons shall be bound to olx-y every order under this section 
 according to its tenor. 
 
 (6.) After notice in writing of an order under this section, it shall 
 not be lawful for tlie bank or any other company to transfer any 
 stock to which the order relates or to pay any dividends thereon 
 except in accordance with the order.
 
 SEVERANCE OF TRUST ON APPOINTMENT. 31^ 
 
 Art. 63. 
 
 Art. 63. — Severance of Trust on Ajyj^ointmejit of 
 7ieiu Trustees. 
 
 "A separate set of trustees may be appointed 
 for any part of the trust property held on trusts 
 distinct from those relating to any other part or 
 parts of the trust property, notwithstanding that 
 no new trustee is to be appointed for such other 
 parts, 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 " (s). 
 
 Illustkation. 
 
 Thus, if a testator gives real and personal estate to Explanatoiy 
 trustees, upon trust to pay the income to A. during her Hfe, ^'^^^i^mple. 
 and after her death to sell and divide the proceeds into two 
 parts, and to hold one of such parts in trust for A.'s daughter 
 Mary, for life, with remainder for her children, and the 
 other of such parts in trust for A.'s daughter Ann, for life, 
 with remainder to her children, then upon the death of A., 
 and the appointment of new trustees, separate sets of 
 trustees may now be appointed to administer the trusts 
 of Mary's and Ann's respective shares. It would seem 
 that, before December 31st, 1882, this could not have been 
 done, except by the court (t). The section applies not- 
 withstanding that the trusts, although separate for a time, 
 may ultimately again unite in favour of one individual (to). 
 
 (.s) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 10, re-enacting Con- 
 veyancing Act, 1882 (45 & 46 Vict. c. 39), s. 5, as amended by 
 Conveyancing and Law of Property Act, 1892 (55 & 56 Vict. c. 13), 
 s. 6, by wliich the decision of North, J., in Savile v. Couper, 35 W. R. 
 829, was overruled. 
 
 (t) Cooper V. Todd, 29 W. R. 502. The court, however, could do it. 
 See Be Gunard, 27 ^^'. R. 52 ; Re Moss, 37 Ch. D. 513. 
 
 (?() Re Hetherington, 34 Ch. D. 211.
 
 ( 320 ) 
 
 CHAPTEE VII. 
 
 THE RIGHTS OF TRUSTEES. 
 
 ART. PAGE 
 
 64. — Right to Reimbursement cmd Indemnity . - - - 320 
 
 65.— Right to Discharge • . - - 328 
 
 66. — Right to take Direction of a Judge ----- 330 
 
 67. — Right to j)ay Trust Funds into Court imder certain Circum- 
 stances --------- 331 
 
 68. — Right under certain Circumstances to have the Trust 
 
 administered by the Court 334 
 
 Aet. 64. — Fiifjlit to Beimhursement and 
 Indemnitij. 
 
 (1) A trustee is entitled to be reimbursed out 
 of the trust property {a) aU expenses which he 
 has properly paid or incurred in the execution of 
 the trust {h). Moreover, a person who is sui juris 
 and beneficially entitled to trust property which 
 he cannot disclaim, is bound personally to in- 
 demnify the trustee against liabilities incident to 
 such property, whether he originally created the 
 trust, or accepted a transfer of the beneficial 
 ownership with knowledge of the trust (c). 
 
 (2) The question as to what expenses are, 
 and what are not properly incurred, depends 
 upon the circumstances of each particular 
 case (<:/). 
 
 (a) Re Earl of WiDrhi/sm, 30 Cli. 1). 168. 
 
 {!>) Trustee Act, 18!I3 (.56&57 Vict. c. 53), s. 24 ; Worral v. Harford, 
 8 Ves. 8 ; Morrison v. Morrimn, 4 K. & J. 458 ; Re German Mining 
 Co., 4 1). M. &G. 19. 
 
 (r) Hardoon v. JielUios, [19011 A. C. 118. The previous cases at law 
 flurh a.s Hoxcjood v. Ptdhr, 6(5 L. .1. Q. B. 18, are inapplicable, the 
 right heiiig peculiarly an c(|uital)lc one. Cf. Jtrris v. Wolfcrstan, 
 18 E(|., at p. 21 ; Frrwr v. Murdoch, 6 App. Cas., at \>. 872 ; Rt German 
 Mimiiii Co., 4 D. JM. & (J. 19, 54 ; Jlohhs V. Wayet, 36 Ch. L>. 256. 
 
 (il) Leedhum v. Chawner, 4 K. & J. 458.
 
 EIGHT TO EEIMBURSEMENT AND INDEMNITY. 321 
 
 (3) Although, as between the beneficiaries, Art. 64. 
 such expenses are generally payable out of 
 capital (e), yet, until they are paid, the trustee 
 
 has a lien for them, on both capital and in- 
 come (/), in priority to the claims of the 
 beneficiaries {g). 
 
 (4) Where a trustee has committed a breach 
 of trust, he will not be allowed to reimburse 
 himself his expenses until he has made good the 
 breach Qi). 
 
 Illustrations op Pakagraphs (1) and (2). 
 
 1. In Bennett v. Wynclham (i), a trustee, in the due Damages 
 execution of his trust, directed a bailiiif, employed on the ti'^i^j parties 
 trust property, to have certain trees felled. The bailiff 
 ordered the wood-cutters usually employed on the property 
 
 to fell the trees, in doing which they negligently allowed a 
 bough to fall on to a passer-by, who, being injured, re- 
 covered heavy damages from the trustee in a court of law. 
 These damages were, however, allowed to the trustee out of 
 the trust property. 
 
 2. So where a trustee of shares has been obliged to pay Calls on 
 calls upon them, he is entitled to be reimbursed (k), not ^'^^^■®^- 
 merely out of the trust estate, buU also, if necessary, by the 
 beneficiary personally if the latter be siti juris, and is no 
 longer in a position to disclaim the beneficial interest (l) ; 
 
 and the right to be indemnified (at all events out of the 
 trust property) accrues directly the liability is proved to 
 
 (e) Carter v. Seahright, 26 Beav. 376. 
 
 (/) Stott V. MUjie, 25 Ch. D. 710; Ex parte James, 1 D. & C. 272; 
 Ex parte Chippendale, 4 D. M. & G. 19 ; and see Walters v. Woodbridge, 
 7 Ch. D. 504. 
 
 {g) Dodds v. Tuke, 25 Ch. D. 617 ; Matthias v. Matthias, 3 Sm. & 
 G. 552. 
 
 (h) Re Knott, Bax v. Palmer, 56 L. J. Ch. 318. 
 
 {i) 4 D. F. & J. 259. 
 
 (k) James v. May, 6 H. L. 328 ; Re National Finance Co., 3 Ch. App. 
 791 ; Fraser v. Murdoch, 6 App. Cas. 855. See also, as to right of 
 executor to recover calls from a residuary legatee, Re Kershaw, 
 Whitaher v. Kershaw, 45 Ch. D. 320. 
 
 (I) Hardoon v. Belilios, [1901] A. C. 118. 
 
 T. Y
 
 322 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 64. 
 
 Indenniity 
 for liabilities 
 incurred in 
 carrj'ing on 
 trust 
 business. 
 
 exist (m). However, there must be some proof that the 
 liability is not merely imaginary ; for a person entitled to 
 be indemnified cannot sue qtda timet, or, in other words, he 
 cannot claim a declaration of his right to indemnity before 
 the contingency which creates the damage has arisen {ii). 
 Therefore, although a trustee may, as such, be a member of 
 a company which is being wound up, he cannot bring an 
 action to establish his right to an indemnity, unless he can 
 establish the fact that calls must be made [n). 
 
 3. So where trustees or executors have rightly carried on 
 a business in accordance with the provisions of a will or 
 settlement, they are entitled to be indemnified out of the 
 trust estate against any liabilities which they have properly 
 incurred (o). 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 (o). 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 indemnity is limited to the specific assets so 
 directed to be employed {p). The creditors of a trust 
 business have no original right to claim payment of their 
 debts out of the trust estate (q). Their remedy is against 
 the trustee whom they trusted ; but they have also a right 
 to he imt in his place against the trust estate (r). If, there- 
 fore, the trustee is (by reason of breach of trust or other- 
 
 (m) Jlobbi V. Wayet, 36 Ch. D. 256. 
 
 {n) Huijhes-Hcdlett v. Iiidian Mammoth Gold Mina Co., 22 Ch. D. 
 561. 
 
 (o) Dow.ie V. Gorton, [1891] A. C. 190; lit Evann, Evans v. Evans, 
 :U Ch. 1). 597. 
 
 ( J)) Rd Johnson, Shearman v. Jiobin-son, 15 Ch. D. 548 ; Jie Webb, 
 (5:1 L. T. 545. 
 
 (r) l{i', Johnnon, Shearman v. liobinsou, 15 Cli. D. 548 ; Re fVcbb, 
 (Y.\ L. T. 545 ; Strickland v. Si/moiii, 26 Ch. 1). 245 ; and see also 
 Redman v. liymcr, 60 L. T. .S85 ; Lady Wenlock v. River Dee Commis- 
 nionern, 19 C^. li. 1). 155; and as to torts, Re RayboiUd, Rayboidd v. 
 Turner, [I'JOOJ 1 Ch. 199.
 
 EIGHT TO REIMBUKSEMENT AND INDEMNITY. 323 
 
 wise) himself indebted to the trust estate to an extent Art. 64. 
 exceeding his claim to indemnity, then, inasmuch as he 
 cannot be entitled to an indemnity except upon the terms 
 of making good his own indebtedness to the trust, the 
 creditors are in no better position, and can have no claim 
 against the estate (s). 
 
 i. A trustee or executor will be allowed the amount of a Solicitor's 
 solicitor's bill of costs which he has paid for services costs. 
 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 moneys to make payments (u). 
 However, under the Solicitors Act (6 & 7 Vict. c. 73, s. 39), 
 beneficiaries may, at the discretion of the court, obtain 
 an order to tax the costs of the trustee's solicitor (v). 
 
 5. Unless trustees have been guilty of misconduct, they Costs of 
 
 are entitled to their costs of an action for the administration aflniinistra- 
 
 of the trust as between solicitor and client, and not merely to<^ethei''witli 
 
 as between party and party (x), and, in addition thereto, "costs, 
 
 ,1,1 T 1-11 charges, and 
 
 any other costs, charges, and expenses properly mcurred by expenses." 
 
 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, 
 
 and they cannot afterw^ards claim them as " costs, charges, 
 
 and expenses " {y). To deprive a trustee of his costs, 
 
 charges, and expenses, has, however, been called " a violent 
 
 exercise " of the court's discretion. A trustee ought only to be 
 
 deprived of them for gross misconduct {z) ; 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 
 
 (s') Re Johnson, Shearman v. Rohinson, supra ; Ex parte Garland, 
 10 Ves. 110 ; recognised in Re Blwidell, Blundell v. Blundell, 44 Ch. D., 
 at p. 11. 
 
 (t) Macnamara v. Jones, Dick. 587. 
 
 (u) Re Davis, Muckalt v. Dan's, W. N. (1887), p. 186, sed qua;re. 
 
 (r) But see Re Wellhorne, [1901] 1 Ch. 312. 
 
 (x) Re Lore, Hill v. Spurgeon, 29 Ch. 1). .348. 
 
 (i/) Re Hodgkinson, Hodgkinson, v. Hodgkinson, [1895] 2 Ch. 190. 
 
 (z) Birks v. Micklethwait, 34 L. J. Ch. 364.
 
 324 THE ADMINISTKATION OF A TRUST. 
 
 Art. 64. him on that ground {a), although, if he be allowed costs, the- 
 beneficiaries cannot appeal against such allowance [b). Yet 
 a trustee who acts unreasonably may be deprived of costs. 
 For instance, in a recent 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 (c). If trustees are co-plain- 
 tiffs or co-defendants, they ought, except under special 
 circumstances, to sue or defend jointly (d), and will only be 
 allowed one set of costs between them (e), to be apportioned 
 by the taxing master (/ ) ; and if a trustee improperly 
 refuses to join his co-trustee as plaintiff, and consequently 
 has to be made a defendant, he may be deprived of costs 
 altogether (e). 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 (g) ; and the same rule obtains where one of the trus- 
 tees is attacked hostilely, in which case he may employ two 
 counsel (h) . 
 
 Ptl'«i" 6. It has been held that a trustee is entitled to be 
 
 cost's allowed reimbursed costs of former trustees, paid by him to their 
 trustees. personal representatives previously to the latter transferring 
 
 the trust estate (i). He is also entitled to be reimbursed 
 costs incurred by him previously to his appointment, in 
 obtaining a statement of the trust property, and ascer- 
 taining that the power of appointing new trustees was being, 
 properly exercised (k) ; and also costs incurred by the donee 
 of the power of appointment iu relation to the trustee's- 
 appointment (i). 
 
 (a) See lie ChenneN, Jones v. Chennell, 8 Ch. D. 492 ; Be Love, Hill v, 
 Spiinjeon, 29 Ch. D. 348 ; Re Kvhjhf, 26 Ch. 1). 82. 
 
 (I>) C/i(irlt.s V. J outs, :V.i Ch. I). SO. 
 
 {<■) lit Knox, [189.") I 2 Cli. 48.S. 
 
 ('/) .Morgan and Wuit/.burg's Treatise on Costs, 2nd cd., pp. 124 — 
 12U, an<l 4U;i. 
 
 («) HiuiliM V. Key, 20 Boav. 39j ; Oompertz v. Kendt, 13 Eq. 369. 
 
 (f) lie I mar, Cr'onhurh v. Isaac, [1897 J 1 Ch. 251. 
 
 ('/) /("'- Ijorv, Hill V. S/ziiri/ioii, supra. 
 
 (//) AV Maiblurk, Unit V. 'Wriqht, [1899] 2 Ch. 588. 
 
 (i) Harvey v. Olivtr, W. N. (1887), 149. 
 
 (/-•) lie Pumjikrry, Worcealer, etc. Bankiiuj Co. v. Blick, 22 Cli. D. 255,
 
 RIGHT TO REIMBURSEMENT AND INDEMNITY. 325 
 
 7. But where a trustee takes upon himself the responsi- Art. 64. 
 
 bihty of defending an action in relation to the trust estate 
 
 without procuring the sanction of the court, and the defence jncurretUn 
 
 is unsuccessful, the onus lies upon him of proving that he luisuccess- 
 
 had reasonable grounds for defending it. If he cannot." ^ ,. 
 
 ^ . '^ . ing an action. 
 
 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 (Z). 
 
 8. Neither will trustees be allowed to reimburse them- Unreasonable 
 selves every out-of-pocket expense, but only such as are jij^^j^ol^ed 
 reasonable and proper under the circumstances. Thus, 
 
 where a receiver {who is, of course, a trustee) made several 
 journeys to Paris, in order that he might be present at the 
 hearing of a suit brought in the French courts in relation to 
 the trust property, and it appeared that his presence was 
 wholly needless (the sole question being one of French law, 
 and not of fact), his travelling expenses were disallowed, on 
 the ground that they were, under the circumstances, 
 improperly incurred (ju). 
 
 9. And so where trustees attempted, at the solicitation of 
 their beneficiaries, some of tuhom loere 7narried ioomen ivitliout 
 power of 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 
 for specific performance brought against them by the 
 purchaser [n). 
 
 10. Again, 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 proceedings. For instance, on retire- 
 ment, 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 (o). 
 
 [1) Re Beddoe, Downes v. Cottam, [189.3] 1 Ch. 547. 
 (??i) Malcolm v. O'Callaghan, 3 My. & Cr. 62. 
 (n) Leedham v. Chawner, 4 K. & J. 585. 
 (o) Water v. Anderson, 11 Hare, 301.
 
 326 
 
 THE ADMINISTRATION OF A TRUST. 
 
 Art. 64. 
 
 Paranioimt 
 lieu on trust 
 property for 
 tinistees' 
 expenses. 
 
 Trustees' 
 lien good 
 even vviierc^ 
 H(-ttI('inciit 
 void nii(it;r 
 liiuikruptc^ 
 Act, 
 
 Illustrations of Paeageaph (3). 
 
 1. In an administration action, the costs of all partie& 
 were directed to be taxed and paid out of the trust estate, 
 the costs of the trustees to include any charges and expenses 
 properly incurred by them. It subsequently appeared pro- 
 bable that the trust fund would be insufficient for the 
 payment of the whole of the costs in full, and the trustees 
 moved to vary the minutes by the insertion of a direction 
 that if the trust funds were insufficient to pay the whole of 
 the costs, charges, and expenses thereby directed to be 
 taxed and paid, their costs, charges, and expenses should be 
 paid in priority to the costsof the beneficiaries. Bacon, V.-C, 
 in giving judgment, said: "It is a good rule that trustees 
 should have a priority for their costs, because, until 
 those costs are provided for, it is impossible to say what 
 the trust fund is. I, therefore, hold that these trustees 
 are entitled to payment of their costs, charges, and expenses, 
 in priority to the costs of all other parties, and the order 
 must therefore be varied accordingly " (j)). In short, the 
 trustees' lien takes precedence of all beneficial interests, not 
 only as against original beneficiaries, but also all purchasers 
 or mortgagees claiming through or under them (q). Even 
 where property is settled on a married woman for life, wath- 
 out power of anticipation, and she improperly commences 
 administration proceedings, which are dismissed with costs 
 against her personally, the court may authorise the trustees 
 to recoup themselves out of her life interest (?•). 
 
 2. One Ilolden executed a post-nuptial voluntary settle- 
 ment. He subsequently commenced an action to set it 
 aside, but failed in his contention, the action being dis- 
 missed with costs. He then became bankrupt within two 
 years of the date of the settlement, which accordingly 
 became void under s. 47 of the Bankruptcy Act, 1883 (4G & 
 47 Vict. 0. 52). It was held that, although the settlement 
 was void, yet as it had originally been valid, but voidable. 
 
 ip) Dodd>i V. Tid-c, 2;-) (Jli. 1). G17. 
 
 (7) lO; Kniijnnmi, Knupmnnw Wrejord, 18 (Jli. I). .SOO. 
 (r) ICdinnrdx v. Dcirar, 84 W. H. G2 ; and cf. Married Women's 
 I'ropcrty Act, IS'j:} (.'>() & .')7 Vict. e. G."}), s. 2.
 
 EIGHT TO EEIMBURSEMENT AND INDEMNITY. 327 
 
 and as the trustees had incurred costs in the execution of Art. 64. 
 
 their duty which they could not recover from the bankrupt, 
 
 they were entitled to be fully indemnified out of the trust 
 
 funds (s). It would seem, however, that the same principle 
 
 does not apply to settlements void under the 13th Eliz., c. 5, 
 
 or to cases where the execution of the settlement was an 
 
 act of bankruptcy {t). 
 
 3. Where, however, a trustee for purchase has advanced Exception 
 
 money of his own to enable a particular property to be iias^n^ixcci* ^^ 
 
 purchased, the price of which exceeded the whole trust his money 
 
 fund, it was held that he had not a first charge on the nro- 7'*'i ^™^^ 
 
 ... . ^ luncl. 
 
 perty 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 only had a second charge for 
 the amount of his advance {it). The ratio decidendi in this 
 case would seem to have been, that it was not so much a 
 question of indemnity for costs 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 {v) ) gave the trust estate a first and para- 
 mount charge. 
 
 Illusteations of Paragraph (4). 
 1. Where the sole object of a suit is to make trustees Costs of 
 answerable for breach of trust, and a judgment to that ]^ave coni- ^^ 
 effect is obtained, the trustees will not only not get their mitted a 
 costs allowed, but will almost invariably have to pay the r*^'®^ . 
 costs of the plaintiffs up to the judgment (x) ; and 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 misconduct, there would have been 
 no need for the action at all {y). And the same result will 
 follow where the conduct of a trustee is vexatious or 
 
 (.s) Re Holden, 20 Q. B. D. 43. 
 
 (0 See Be Butterworth, ex parte Russell, 19 Ch. D. 588 ; Dutton v. 
 Thompson, 23 Ch. D. 278 ; Ex parte Vaughan, 14 Q. B. D. 25. 
 
 (u) Re Pumphrey, Worcester, etc. Banking Co. v. Blick, 22 Ch. D. 
 255. 
 
 (;•) P. 353. 
 
 \x) Per Lord Langdale, Byrne v. Norcott, 13 Beav. 336 ; Gough v. 
 Etty, 20 L. T. 358 ; Easton v. Landor, 67 L. T. 833. 
 
 (y) Easton v. Landor, supra.
 
 328 THE ADMI^:ISTEATIO^: OF A TRUST. 
 
 Art. 64. oppressive (z), or unreasonably cautious (a). But where an 
 administration suit is necessary apart frojn the breach of 
 trust, and the latter only forms an incidental feature of the 
 suit, the trustee will, as a rule, be allowed his general costs 
 of the suit as bet^'een soUcitor and cHent, although he 
 may have to pay the special costs caused by the breach (b). 
 But he will not be allowed to receive them until he has 
 made good the loss to the estate caused by his breach (c). 
 And, in spite of a decision of the late Yice-Chancellor HalIj 
 to the contrary (d), the weight of authority is in favour of 
 applying the same rule to costs incurred by a trustee defen- 
 dant, even after he may have become bankrupt (e). 
 
 Aet. 6o. — Plight to Discliarge. 
 
 Upon the completion of the trust, a trustee is 
 entitled to have his accounts examined and 
 settled by the beneficiaries, and either to have a 
 formal discharge given to him or to have the 
 accounts taken in court. He cannot, however, 
 demand a release under seal (/). 
 
 Illustkatioxs. 
 
 1. A tnistee, on finally transfemng stock to a bene- 
 ficiary, demanded from the latter a deed of release. The 
 
 (2) See ^far.^haIl v. Sladden, 4 D. & S. 468 ; Patterson v. Woolen, 
 2 Ch. D. 586 ; Attorney -General v. Murdoch, 2 K. & J. 571 ; Palairet x. 
 Careir, 32 Beav. 564 ; Griffen v. Brady, .39 L. J. Ch. 136. 
 
 (a) Smith V. Boldeu, 33 Beav. 262 ; Re Cull, 20 Eq. .561 : Firmin v. 
 Pnlham, 2 D. & S. 99 ; Corkcro/t v. Sufdife, 25 L. J. Ch. 313 ; and see 
 also cases collected in Morgan and Wurtzburg"s Treatise on the Law of 
 Costs, 2nd ed., p. 412 ef sfq. 
 
 (//) Pride V. Pook:^, 2 Beav. 430 ; Campbell v. Bainbridge, 6 Eq. 269 ; 
 Bell v. Turner, 47 L. J. Ch. 75. 
 
 (r) Re Knott, Bax v. Pahner, 56 L. J. Ch. 318. 
 
 (rf) Clare v. Clare, 21 Ch. D. 865. 
 
 (€) Leiri^ v. Tra.ilc, 21 Ch. D. 862 (North, .T.) ; Re Bas>ham, Hannay v. 
 BoHham, 23 Ch. D. 195 (Chittv, J.); McEiren v. Cromhie, 25 Ch. D. 
 175 (North, J.). 
 
 (/) Chofbrirk v. Heathy, 2 Coll. 137 ; Re Wright, 3 K. & J. 421 ; 
 King v. Mnllin'*, 1 Drew. 311 ; and see Re Lord Stamjord, Payne v. 
 Stamford, [1896] 1 Ch., at p. 301.
 
 EIGHT TO DISCHARGE. 329 
 
 beneficiary, however, refused to give him anything except -AJt. 65. 
 a simple receipt for the amount of stock actually trans- 
 ferrecl, which, of course, left it open to him to say that 
 that amount was not the amount to which he was entitled. 
 The court held, that no deed was demandable, but the judge 
 said: "Though it may not have been the right of the 
 trustee to require a deed, 1 think that it was his right to 
 require that his account should be settled ; that is to say 
 that he and his family should be delivered from the anxiety 
 and misery attending unsettled accounts, and the possible 
 ruin, which they who are acquainted with the affairs daily 
 litigated in the Court of Chancery well know to be a frequent 
 result of neglect in such a matter" ((/). 
 
 2. "In the case of a declared trust, when the trust is 
 apparent on the face of the deed, the fund clear, the trust 
 clearly defined, and the trustee is paying either the income 
 or the capital of the fund, if he is paying it in strict 
 accordance with the trusts, he has no right to require a 
 release under seal. It is true that in the common case of 
 executors, when the executorship is being wound up, it is 
 the practice to give executors a release. An executor has 
 a right to be clearly discharged, and not to be left in a 
 position in which he may be exposed to further litigation ; 
 therefore, he fairly says, unless you give me a discharge on 
 the face of it protecting me, I cannot safely hand over the 
 fund ; and therefore it is usual to give a release ; but such 
 a claim on the part of a trustee would, in strictness, be 
 improper, if he is paying in accordance with the letter of 
 the trust. In such a case he would have no right to a 
 release " (Ji). 
 
 3. Where trust moneys have been re-settled, the trustees 
 or executors of the original settlement or will are, it has 
 been said, entitled to a release under seal from their 
 beneficiaries, though they are entitled only to a mere receipt 
 from the trustees to whom they pay the moneys {i). But, 
 on the other hand, where a married woman, having a 
 
 (g) Chadwick v. Heatley, supra. 
 
 (h) Per KiNDERSLEY, V.-C, in King v. Mulliivi, 1 Drew. 311. 
 
 <^■) Re Cater, 25 Beav. 366.
 
 330 THE ADMINISTRATION OF A TRUST. 
 
 Art. 65. general power of appointment by will, appoints the fund in 
 piu'suance 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 " (k). 
 
 Art. 66. — Right to talx Direction of a 
 Judge (I). 
 
 (1) Trustees may, in cases of doubt as to 
 what course they ought to adopt, safe-guard 
 themselves by taking out an originating sum- 
 mons, returnable in the chambers of a judge of 
 the Chancery Division, for the determination 
 (without general administration by the court) 
 of:— 
 
 (a) any question affecting the rights or interests 
 
 of the cestuis que trusts (^m) ; 
 
 (b) the ascertainment of any class of creditors, 
 
 legatees, devisees, next of kin, or 
 others (??) ; 
 
 (c) the approval of any sale, purchase, com- 
 
 promise, or other transaction (o) ; 
 
 (d) the determination of any question arising 
 
 in the administration of the trust (_p), 
 including any question as to the proper 
 construction of the settlement {q). 
 
 (/•) Ifr J/oshv, r> Ch. D. 229 ; 6 ih. 281. 
 
 (/) 'I'lie taking of a judgc'H ailvicc on petition, uikU;!- the statute 22 & 
 2;i Viot. o. .'{.I, H. .'{(>, is |iiactically ohsolete. 
 
 (m) K. S. (J. IS,s:{, Old. LV. r. .'} (a). A .similar Kunnnons may be 
 taken out I)y any of tlie rr.s/7t/.s' (jia /nixt.'<. 
 
 iv) Jh. (1.). (p) Il>. (g). 
 
 (o) 11). (f). (q) H. S. C. 189.S, Old. LIVa.
 
 EIGHT TO TAKE DIRECTION OF A JUDGE. 
 
 (2) The judge has power on such summons to 
 make declarations binding the parties ; but as a 
 general rule no such declarations will be made as 
 to future or contingent rights, except where the 
 futurity is not remote, or the contingency is 
 about to be destroyed, and the parties reasonably 
 desire to ascertain their rights so as to mould 
 their conduct accordingly (r). 
 
 Almost any question of construction or administration 
 can now be decided on originating summons, except (1) cases 
 in which it is sought to make trustees responsible for breach 
 of trust, at all events where wilful default is charged (s) ; 
 or (2) questions affecting a person claiming adversely to the 
 settlement (t) ; or (3) questions involving the cancellation of 
 instruments (w). To these exceptions was formerly added, 
 questions as to a legal devise (x) ; but it is apprehended that 
 under E. S. C. 1893, Ord. LIVa., such questions can now be 
 dealt with on originating summons. In a recent case where 
 new trustees refused to act until it was determined whether 
 the old ones were liable for a loss, the court on summons 
 declared that the old ones were not liable (t/). The reader is 
 referred for other examples of cases decided on originating 
 summons to the Annual Practice, Ord. LV., r. 3. 
 
 Art. 67. — Bight to jmy Trust Funds into Court 
 under certain Circumstances. 
 
 " (1) Trustees, or the majority (z) of trustees, 
 having in their hands or under their control 
 money or securities belonging to a trust, may 
 
 (r) See JRe Behrens, W. N. (1888), p. 95. 
 
 (s) See pe7' Lord Macnaohtex, Doiv-se v. Gorton, [1891] A. C. 202 ; 
 and see Re Weall, Andrews v. Weall, 42 Ch. 1). 674; and Be He.nghr, 
 Frowde v. Henrjler, W. N. (1893), p. 37. 
 
 (t) Re Bridge, 56 L. J. Ch. 779 ; Re Royle, 43 Ch. D. 18. 
 
 (?{) See Re Gamett, Gandy v. Macaidey, 32 W. R. 474 ; and Re Ellis, 
 59 L. T. 924. 
 
 (x) Re Carlyon, 35 W. R. 155 ; Re Davies, 38 Ch. D. 210 ; Re Royle, 
 supra. 
 
 (y) Re Irwin, Barton v. Irwin, W. N. (1895) 23. 
 
 (:;) The court can compel a dissentient minority to stand aside. See 
 Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 42 (3). 
 
 331 
 Art. 66.
 
 332 THE ADMINISTEATION OF A TRUST. 
 
 Art^7. pay the same into the High Court ; and the 
 
 same shall, subject to rules of court, be dealt 
 with according to the Orders of the High 
 Court "(a). 
 
 (2) Payment into court is not, however, 
 justifiable merely in order to determine some 
 question which can be determined more cheaply 
 by means of an originating summons (6), nor 
 where the equities are perfectly clear (c) ; and if 
 trustees pay in under such circumstances, they 
 may have to pay the costs of getting the money 
 paid out (d) . 
 
 Illustrations. 
 
 Payment into 1- A trustee is justified in paying money into court where 
 court where he cannot get a valid discharge ; as, for instance, where 
 are under beneficiaries who are absolutely entitled are infants (c) or 
 disability. lunatics (/), 
 
 Dispute 2. Formerly w4iere, under a creditor's deed, money was 
 
 between claimed both by the settlor and the creditors, the trustee 
 
 heneiic'iaries. i i i i t 
 
 was held to have been justified m paying the money mto 
 
 court (g). 
 
 Where money 3. It has been said that a trustee may properly pay 
 representa- ' money into court where it is claimed by the representative 
 
 tive. 
 
 (a) Trustee Act, 1S9.3 (r)6 & 57 Vict. c. 58), s. 42. It would seem at 
 first sight that hv the operation of sub-s. (6) of s. 25 of the Judicature 
 Act, 1873 (36 & 37 Vict. c. 60), these provisions are extended to all 
 constiuctive trustees, such as insurance companies, etc. But although 
 in one case (/I'e JIaycock, 1 Ch. I). 611) this was held to be so, that view 
 has been twice dissented frf)ni [Matthein v. Northn~ii As.suram'e Co., 
 9 CIi. D. Sfl. and /.'- Siillou, VI Ch. 1). 175). Whether, however, these 
 cases arc still binding authorities, having regard to s. 10 of the Trustee 
 Act, 1893 (dcliiiition of " Trustee,") seems open to question. 
 
 (h) ]{e aUf'H, 34 W. R. 712. 
 
 (c) lie. Cull, 20 Eq. 561 ; Re Elliott, 15 Eq. 194. 
 
 (d) lb., and Re Liakc, 32 Beav. 1.34 ; Re Heming, 3 K. & J. 40. 
 
 (e.) Re Cawlhome, 12 Beav. 56; Re Beauderk, 11 W. R. 203; Re 
 Coitlsoii, 4 .Tur. (n.s. ) fi. 
 
 /) Re U/>/iill, 3 M. & a. 2S1 ; /.', Irhi/, 17 Beav. 334. 
 
 {if) Re JJcaili>ii/to)i, 6 \V. ]\. 7 ; but see Re Moseley, 18 W. R. 
 126.
 
 EIGHT TO PAT TRUST FUNDS INTO COURT. 338 
 
 of a beneficiary ; for non constat but that the latter may Art. 67. 
 have disposed of it(/i). But here again an originating 
 summons would seem to be the more appropriate course. 
 
 i. A trustee ought not to hesitate to pay the money to a Payment to 
 beneficiary who claims in default of appointment, if he has 'l\^" ^^ ^" 
 no notice of any appointment by the donee of the power, default of 
 and no ground for believing that any appointment has been 'ippoi^tment. 
 made. For in that case he could not be made liable if he 
 paid over the fund, even if an appointment were subsequently 
 discovered {i). Anyhow, now, a trustee in such a case would 
 only be allowed the costs of a summons. 
 
 5. Where the beneficiary is a married woman, married Payment into 
 before 1883, and whose title accrued prior to that date, it ^°"uj 
 
 has been held that the trustee may pay into court, in order married 
 
 that she may assert her equity to a settlement. But this '^o™'"' t*^.^ 
 
 i-iiTv/r-T -TTT assert equity 
 
 would not be so m cases to which the Married Women's to a settle- 
 Property Act, 1882 (45 & 46 Vict. c. 75), applies. ment. 
 
 6. Again, where the trustee has a bond fide doubt as to Reasonable 
 the law (k), or has received a bond fide claim sanctioned by [,j^^"j^^ ""^ 
 respectable solicitors (l), he may properly pay the fund into 
 
 court, unless the question could be settled by summons. 
 
 7. But where a beneficiary in reversion who had gone to Undue 
 Australia, and had not been heard of for some years, ^''^^^^lo"- 
 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 ^wy 
 the costs of all parties (//i). 
 
 8. Lastly, the reader must be warned that now that General 
 most questions of doubt or difficulty can be decided on ^^'^iiin^t;- 
 
 {h) Re Lane, 24 L. T. 181 ; King v. King, 1 D. & J. 663, 6efZ qu<rre. 
 
 (i) Per Jessel, M.R., Re OiM, 20 Eq. 561, distinguishing Re Wylly, 
 28 Beav. 458 ; but see also Re Swan, 2 H. & M. 34 ; Re Roberts, 
 17 W. R. 639 ; Re Bendyshe, 5 W. R. 816 ; Re WiUiaim, 4 K. & J. 
 87. 
 
 [k) King v. King, 1 D. & J. 663 ; Re Metcalfe, D. J. & S. 122 ; 
 Gunnell v. Whitear, 18 W. R. 883. 
 
 (I) Re Mac/ can, 19 Eq. 282. 
 
 (m) Re Elliott, 15 Eq. 194 ; Re Foligno, 32 Beav. 131 ; Re Knight, 
 27 ib. 45 ; Re Woodburn, 1 D. & J. 333.
 
 334 THE ADMINISTEATION OF A TRUST. 
 
 Art. 67. originating summons, the right of paying 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 most cases can only be accepted at 
 the risk of having to pay costs. 
 
 Art. 68. — Right under certain C irciiinstmices to 
 Jiave the Trust administered hij the Court. 
 
 (1) Where the trust property is not capable of 
 being paid or transferred into court, or where the 
 trustee reasonably wishes to be discharged from 
 the office of trustee, he may institute an action 
 for the administration of the trust by the 
 court (;z). But it is not obligatory on the court 
 to make an order for administration, if the 
 ((uestions between the parties can be properly 
 determined without it (o) . 
 
 (2) Where, however, the equities are perfectly 
 clear and unambiguous {p), or the trustee merely 
 craves to be released from caprice or laziness, or 
 is otherwise not justified in the course he has 
 pursued (f/), he will have to pay all the costs; 
 and even where he acts bond fide, but without 
 any real cause, he will not be allowed his own 
 
 (//) Tdlhol V. Earl liadnor, .3 My. & Cr. 'I'fl ; G'oodsou v. Ellison, .3 Russ. 
 .").s:{ ; and as to summons, R. S. C. 1S88, Onl. LV. r. 3. 
 
 (o) li. H. C. 18S:{, Old. I.V. V. 10 : /.V Wake, ./oiitsv. JJ/ake, 2()Ch. D. 
 
 m•^. 
 
 { /,) /iV h'vif/ht, 27 15t;av. 14.'); Lawsoii. v. Copeland, 2 B. C. C. !.")() ; 
 //- /•;///o/^ ]f, ]']([. 11)4; /{<■ Fo/u/iio, 32 Bcav. 131; Jic Woodhiirn, 
 1 I). &J. 333 ; Ih-nltk v. Cnrr.oii, 1 Va\. 1!)4; Re Jloxkin, .') Cli. U. 229. 
 
 (i/) For-'ihnw v. Iliiinimon, 20 Beav. 845; Ih Stoktit, 13 Eq. ,333 ; Re 
 Cuhhiirii, m ]j. T. 848,
 
 RIGHT TO HAVE TRUST ADMINISTERED BY COURT. 335 
 
 costs (r). And where he brings an action when Art. 68. 
 the same object might have been obtained 
 by payment into court or by a summons in 
 chambers (s), he will not be allowed the extra 
 costs occasioned thereby (t) ; and he will always 
 appeal from an order of the court at his own 
 risk (u). 
 
 Illustkations. 
 
 1. With regard to actions for the administration of a When general 
 trust by the court, such actions are now comparatively rare. '^■o™"J^ii'be 
 Formerly, a decree for general administration (that is to ordered, 
 say, a decree whereby the court took upon itself to supervise 
 the execution of the trust) was granted to a trustee or a 
 beneficiary as a matter of course ; and the only check upon 
 an abuse of the process of the court, was the rather remote 
 contingency that the trustee might possibly be deprived of 
 his costs, or, in very flagrant cases, have to pay the costs 
 of all parties, upon the action coming on for further con- 
 sideration. However, by the Eules of the Supreme Court, 
 1883, Ord. LV. r. 10, the old practice has been reversed, 
 and now it is no longer obligatory upon the court or a judge 
 to pronounce or make a judgment or order for the admini- 
 stration of any trust, if the questions between the parties 
 can be properly determined on summons without such judg- 
 ment or order, as mentioned in Article 66. 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 PEAES0N(a;), and the other 
 before the Court of Appeal (;?/), in which the learned Lords 
 Justices were more inclined to restrict the right to a decree 
 than Mr. Justice Peaeson was. Lord Justice Cotton in 
 the latter case said: " Formerly, if anyone interested in 
 
 (r) Re Leake, 32 Beav. 135 ; Be Heming, 3 K. & J. 40 ; Re Hodgkiii- 
 son, Hodgkinson v. Hodgkinsoii, [1895] 2 Ch. 190. 
 
 (s) Re Giles, 34 W. R. 712. 
 
 {t) Wells V. Mcdhon, 31 Beav. 48 ; but see Smallwood v. Ratter, 
 9 Hare, 24. 
 
 (m) Rowland v. Morgan, 13 Jur. 23 ; Tucker v. Horneman, 4 DeM. & 
 G. 395. 
 
 (x) Re Wilson, Alexander v. Calder, 28 Ch. D. 457. 
 
 ly) Re Blake, Jones v. Blake, 29 Ch. D, 913 ; and see also Re Gyhon, 
 Allen V. Taylor, ib. 834,
 
 336 THE ADMINISTRATION OF A TRUST. 
 
 Art. 68. a residuary estate instituted 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 Ord. LV., 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 Ord. LV. r. 10. Then 
 we have Ord LXV. 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 
 administration 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 judg- 
 ment unless it sees that there is no question which requires 
 its decision ; but rule 1 of Ord. LXV. puts the party who 
 applies 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 substantial 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 consequent upon his unnecessary, or 
 possibly vexatious, application to the court " (z). 
 
 (z) This sccniH to rofur nitlior to tlio eiiso of iiii action commenced by 
 a hoiieliciary. It requiroH a very flagrant case to render a trustee 
 liable to i)ay c(JHtH ; hco p. '.i^'.i, ■■mpra. 
 
 I
 
 RIGHT TO HAVE TRUST ADMINISTERED BY COURT. 337 
 
 2. It will be seen from the above judgment, that now Art. 68. 
 
 that almost all isolated questions of construction or admini- 
 
 strative difficulty can be dealt with singly, very few cases ^^.Q^Lonr 
 
 can arise necessitating general administration, except where Justice 
 
 the trustees cannot pull together, or the circumstances of 9"?'™""*'^'^ 
 
 . . ■ -i-rr T • • • ii judgment, 
 
 the estate give rise to ever recurring diinculties requiring the 
 
 frequent direction of the court, or where a_/;r»?ia/acie doubt 
 is thrown on the bo7id fides, 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 general administration judg- 
 ment, to relieve him of trouble and annoyance, in a case 
 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 neces- 
 sary 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 ; and, 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. 
 
 3. 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 (b), or had 
 issued a summons (c). 
 
 i. It has also been held that the court will not neces- 
 sarily order general administration because the testator has 
 directed his trustees to commence an action for it (d). 
 
 {a) Barker v. Peile, 2 Dr. & Sm. 340 ; and see Hirst v. Hird, 
 9 Ch. App. 262. 
 
 (/>) Wdls V. Malhon, 31 Beav. 48. (c) Be Gile-^, 34 W. R. 712. 
 
 (d) Be Stockeii, Jones v. Hawkins, 38 Ch. D. 319.
 
 ( 338 ) 
 CHAPTEE VIII. 
 
 APPOINTMENT OF A JUDICIAL TRUSTEE. 
 
 Aet. 69. — Poiver of Court to Appoint. 
 
 (1) Where application is made to the court {a) 
 by or on behalf of the person creating or 
 intending to create a trust (6), or by or on behalf 
 of a trustee or beneficiary, the court may in its 
 discretion appoint a person (called a judicial 
 trustee) to be a trustee of that trust either jointly 
 with any other person, or as sole trustee, and, if 
 sufficient cause is shown, in place of all or any 
 existing trustees (c) . 
 
 (2) Any fit and proper person nominated in the 
 application may be appointed, and in the absence 
 oi such nomination, or if the court disapproves 
 it (f/) , the ofiicial solicitor of the court may be 
 appointed (e). An unofficial judicial trustee 
 liuist give security (/). 
 
 (3) Remuneration may be assigned by the 
 court to the judicial trustee {g). 
 
 (a) Tlio High Court or the Palatine Court (Judicial Trustees Act, 
 1>S9() (.')!) & 00 Vict. c. 3')), s. 2). 
 
 (h) The administration of tlic estate of a deceased is a trust, and his 
 personal representative a trustee for the purposes of the Act {ih., 
 H. 1 (2). 
 
 (r) Ju.licial Trustees Act, 1896, s. 1 (1). 
 
 (d) Ih., H. 1 (.S), 
 
 (p) Judicial 'J'rustee Rules, 1S97, r. 7. 
 
 (/) Judicial Trustees Act, 189G, s. 4(1), and Judicial Trustee Rules, 
 I'. 9. 
 
 (.7) Judicial Trustees Act, 1890, s. 1 (5).
 
 POWER OF COURT TO APPOINT JUDICIAL TRUSTEE. 339 
 
 (4) Once in every year the accounts of a Art. 69. 
 judicial trustee have to be audited by an officer 
 
 of the court, or a professional accountant 
 appointed by the court (//). 
 
 (5) The court may direct an inquiry into the 
 administration of the trust by the judicial 
 trustee (i), and may give any special or general 
 directions in regard to the trust or its administra- 
 tion (/i-). 
 
 (6) In all cases a judicial trustee is to be 
 subject to the control and supervision of the 
 court as an officer thereof (/). 
 
 Illustrations. 
 
 1. This Act was a new departure in English law, founded 
 on the analogy of the law of Scotland, where a "Judicial 
 Factor " has been established for many years. Its object is 
 to give to trust property the same protection as would be 
 given by a general administration order, but at less cost, 
 and without the necessity of making numerous applications 
 to the court. This protection is secured (1) by the appoint- 
 ment of an official, or, (2) in the alternative, of a person 
 who gives security for his honesty, and (3) by having the 
 accounts audited once a year. It does not, however, appear 
 that if an official judicial trustee should commit a breach of 
 trust (innocent or otherwise), the beneficiaries would be 
 indemnified by the government. 
 
 2. The power of the court to appoint, is purely discre- 
 tionary, and will not be exercised, if the application is 
 opposed, where no charge of improper conduct is made 
 against an existing trustee, even where he or she is a sole 
 
 (/<) Judicial Trustees Act. 1896, s. 1 (6), and Judicial Trustee Rules, 
 r. 14. 
 
 (0 Judicial Trustees Act, 1896, s. 1 (6). 
 
 (k-) lb., s. 1 (4). {!) lb., s. 1 (.3). 
 
 z 2
 
 340 THE ADMINISTRATION OF A TRUST. 
 
 Art. 69. trustee (w), nor where the donee of the power of appointing 
 trustees has appointed persons able and w^ilhng to act (n) ; 
 nor will the court as a rule appoint a judicial trustee to act 
 with a private one (o). 
 
 3. In compliance with s. 4 of the Act, a code of thirty-five 
 rules was made in 1897, dealing in detail with the appoint- 
 ment of official and non-official judicial trustees, the admini- 
 stration of the trust, the security to be given, the custody of 
 securities and money, accounts and audit remuneration, 
 removal, suspension, resignation and discontinuance of 
 judicial trustees, the communication between judicial 
 trustees and the court, fees and so on. iVs, however, these 
 rules will be found set out in the " Yearly Practice," it is 
 not thought necessary to call further attention to them 
 here. 
 
 (m) Be Ratdife, [1892] 2 Ch. 352. 
 ■n) Re Chishdlm, 43 Sol. J. 43. 
 o) See also Re Mariiii, [1900] W. N. 129.
 
 DIVISION V. 
 
 THE CONSEQUENCES OP A 
 BREACH OF TRUST. 
 
 CHAPTER PAGE 
 
 I. — The Liability of the Trustees - - . . 341 
 II. — Protection accorded to Trustees in case of Breach 
 
 of Trust 359 
 
 III. — Liability of Third Parties and Beneficiaries - 382 
 
 CHAPTEK I. 
 
 THE LIABILITY OF THE TRUSTEES. 
 
 ART. PAGE 
 
 '70. — The Measure of the Trustee^ s Responsihility . . . 341 
 
 71. — The Liability, Joint and Several ----- .348 
 72 — No Set-off allowed of Gain on one Breach against Loss on 
 
 another 349 
 
 73. — Projierty acquired either ivholly or imrtly out of Trust Pro- 
 perty becomes liable to the Trust ----- 3.51 
 74. — Any of the Beneficiaries may compel Performance of a 
 
 neglected Duty, or 2irevent the Commission of Breach - 356 
 
 75. — Fraudulent Breacli of Trust is a Crime - - . . 358 
 
 Aet. 10.— The Measure of the Trustee's 
 Hesjjonsihilitjj . 
 
 (1) The general measure of a trustee's 
 responsibility for a breach of trust, is the amount 
 by which the trust property has been depreciated 
 without interest {n) : But — 
 
 (a) See Attormy-Gemral v. Afford, 4 1). M. & G. 851 ; Stafford v. 
 Fiddon, 23 Beav. 386 ; Vyst v. Foster, 8 Ch. App. 333, affirmed 7 H. L. 
 Cas. 318 ; Burdick v. Garrirk, 5 Ch. App. 233 ; and Hale v. Sheldrake, 
 ■60 L. T. 292 ; but see Ex parte Ogle, 8 Cli. App. 717, which, however.
 
 342 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 70. (a) where he has received interest, he is liable 
 to account for it (&) ; 
 
 (b) where he ought (if he had obeyed the 
 
 trust) to have received interest, whether 
 simple or compound (c), he will be liable 
 to account for what he ought to have 
 received (d) ; 
 
 (c) where the object of the breach was to 
 
 further his own personal advantage (e), 
 he will be estopped from denying that he 
 actually received interest, and will be 
 liable to pay (semhle) simple interest at 
 3 per cent. But where he has employed 
 the trust property in trade or specula- 
 tion, he will be liable at the option of 
 the beneficiaries, either to pay compound 
 interest at 5 per cent., with yearly, or 
 even half-yearly, rests, if he may reason- 
 ably be presumed to have made that 
 amount, or to account for all the profits 
 , made by him (/). 
 
 (2) Where a trustee improperly advances trust 
 money on a mortgage security which would at 
 the time of the investment be a proper invest- 
 ment in all respects for a smaller sum than is 
 actually advanced thereon, the security is deemed 
 an authorised investment for the smaller sum, 
 
 suonis to l)e (luite inconsistent with nil tlio otlicr authorities, as the 
 trustee did not receive interest, nor was there any evidence that he 
 ought to have received tlie rate (o ])er cent.) charged against him. 
 
 (/*) Cases cited in note (a), and also Joms v. Foxall, 15 Beav. 392. 
 
 (<■) Re. liarduy, liarrlay v. Amlrc.w, [1899] 1 CIi. G74. 
 
 (r/) AUot-niif-dincnd v. AlJ'ord, mipra ; S/aJJbrd v. Fiddon, supra; 
 I'rln v. Prir'r, 4'2 L. T. (i.SO. 
 
 ('■) See and considcir judgments, Atto7'7ic:>/- General v. A/ford, anpra. 
 
 (/') iSee JoiKi V. Foxall, mpra ; Vyic v. Foster, .supra; Burdickv. 
 (Jarrick, supra.
 
 MEASURE OF TRUSTEE'S RESPONSIBILITY. 343 
 
 and the trustee is only liable to make good ^^- '^^■ 
 the sum advanced in excess thereof with 
 interest (g). 
 
 Illustrations of Paragraph (1). 
 
 1. For a good example of the measure of the trustee's t-'jss of 
 HabiHty for disregarding the express directions of the settle- by^jigobevinK 
 ment, the reader is referred to Illustration 5 on p. 158, supra, the directions 
 Another (which seldom occurs now) happens where trustees /* ^^ettle- 
 are expressly directed to invest in particular securities 
 
 {e.g., British Government funds), and, instead of doing 
 so, retain the money in their hands. In such cases the 
 beneficiaries may elect either to claim the money itself, 
 or the amount of Government stock which the trustees 
 might have purchased therewith at the date when they 
 ought to have made the investment (h). However, where 
 trustees have a choice of investments, it is obvious that the 
 same rule cannot apply, because it would be impossible to 
 say which of them they would have chosen if they had 
 exercised their discretion. In such cases, therefore, the 
 beneficiaries are only entitled to the money with interest at 
 3 {i) per cent. {h). 
 
 2. The trustee of gas shares allowed the husband of one Not liable foi- 
 
 of the beneficiaries to get them into his hands. The ya^iue^caused 
 
 husband surrendered them to the company, accepting allot- by act of 
 
 ments of new shares in their stead, on which new shares he tinrd party 
 
 . alter breach 
 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 (Z). 
 
 (g) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 9. This section applies 
 to investments made as well before as after the commencement of the 
 Act, except where an action or other proceeding was pending with 
 reference thereto, on December 24th, 1888. Prior to the latter date 
 the trustee had to take over the mortgage and to pay the actual money 
 invested. 
 
 (/i) Shepherd v. Molds, 4 Hare, 500, 504. 
 
 (i) Re Barclay, Barclay v. Andrew, [1899] 1 Ch. 674. 
 
 (k) Robinson v. Rohhvson, 1 D. M. & G. 295 ; Marsh v. Hunter, 6 Madd. 
 295. 
 
 (/) Briggs v. Massey, 30 W. R. 325 ; and see also Re Htdkes, Powell y. 
 Hidkes, W. N. (1886), p. 111.
 
 344 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 70. 
 
 Cases whei'e 
 there must 
 always have 
 l)eeii a loss. 
 
 3. So, where there must always have been a loss on the 
 realisation of trust property, apart from any breach of trust, 
 then if a breach of trust further depreciates it, the measure 
 of the trustee's responsibility is confined to the further 
 depreciation, and he is not responsible for the difference 
 between the nominal value and the actual amount 
 realised (in). 
 
 Illustration of Sub-paragraph (a). 
 
 A trustee who is guilty of unreasonable delay in 
 investing trust funds will be answerable to the beneficiaries 
 
 Loss of 
 
 interest 
 
 caused bv 
 
 unreasonable fo^^ simple interest at 3 (n) per cent, during the continuance 
 
 delay in of such delay (o) ; for if he had done his duty, interest 
 
 investing. 
 
 would in fact have been received. 
 
 Duty to 
 accumulate. 
 
 Improper 
 
 <:alling in of 
 good security. 
 
 Illustrations of Sub-paragraph (b). 
 
 1. On the same ground, where an executrix allowed trust 
 money to remain uninvested in her solicitor's hands for 
 nine years during the infancy of the beneficiary, she was 
 charged with compound interest at the rate of 3 per 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 (p). And a fortiori is this the case where 
 there is an express trust for accumulation (n). 
 
 2. A trustee who, without proper authority, calls in trust 
 property invested on mortgage at 5 per cent., would be 
 liable for that rate of interest ; for although he may not 
 actually have received that rate, he ought to have done 
 so (q). 
 
 (»() Lo7-fl (,'ainiiboroiiiih v. Wdlcomltc Terra Cotta Co., 54 L. J. Ch. 
 iM)l. 
 
 (7() See Re Bctrday, liarrku/ \. Andrew, fl,S<)!)| 1 Ch. 674; lie Good- 
 enimiik, Marland v. WiUiamx,'\ IS!);-)] 2 Cli. r^'Xl ; lie J [ill, 75 L. T. 477 ; 
 Jir 1,,/neh Blosxe, liiekardH v. Lyneh Blnsse, |189!)| W. N. 27. 
 
 (o) S/riJ}'or<l V. Fiddoii, mijira. 
 
 ( /)) (lilrmj V. Stejilun, ."<() W. \i. ITy't (Fkv, J.); and see also lir 
 /'JiiriH'/, J'Jnwiet. v. Emmet, 17 Cii. D. 142. 
 
 (7) Sec judgment in Joiuh v. FoxhU, supra ; and see princnplcs stated 
 in /{e A/asniu/hird, Clark v. Trcluivnei/, 63 L. T. 296 ; and Alodey v. 
 Word, 11 V^s". 5S1.
 
 MEASURE OF TRUSTEE'S RESPONSIBILITY. 345 
 
 Art. 70. 
 
 Illustrations op Sub-paragraph (c). 
 
 1. A trustee retained trust funds uninvested for several fixing trust 
 years, and mixed them with his own private moneys, but trustee's own 
 did not trade or speculate with them, or get any personal moneys, 
 benefit from them. Lord Cran worth, in delivering judgment, 
 said ; " Generally speaking, every executor and trustee who 
 holds money in his hands is bound to have that money 
 forthcoming ; he is, therefore, chargeable with interest, and 
 is almost always to be charged with interest at 4 (r) per 
 <;ent. It is presumed that he must have made interest, 
 and 4 per cent, is that rate of interest which this court has 
 usually treated it as right to charge." His lordship then 
 commented on the misconduct attributed to the trustee, and 
 proceeded as follows : '' It is not viiscondiict that has benefited 
 him, unless indeed it can be taken as evidence that he kept 
 the money fraudulently in his hands, meaning to appropriate 
 it. In such a case, I think the court would be justified in 
 dealing, in point of interest, very hardly with an executor, 
 because it might fairly infer that he used the money in specu- 
 lation, by which he either did make 5 2)er cent., or ought to he 
 ■estojoped from saying that he did not. The court would not 
 inquire what had been the actual proceeds, but in application 
 of the principle, in odium spoliatoris omnia prasumuntur , 
 would assume that he did make the higher rate, that is, if 
 that ivere a reasonable presumption " (s). 
 
 2. In Burdich v. Garrick (t), a solicitor, as the agent of Solicitor- 
 the plaintiff, held a power of attorney from him, under the +^"^+'^f^ using 
 authority of which he received divers sums of money, and in his 
 paid them into the bank to the credit of his fthe solicitor's) business, 
 firm. On a bill 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 Hatherlby saying : " The 
 
 (/•) Now 3, see note (n), supra. 
 
 (.>>•) Attorney-General v. Alford, supra ; and see Jones v. Searle, 
 49 L. T. 91 ; and see Be Emmet, Emmet v. Emmet, 17 Ch. D. 142. 
 
 (<) 5 Ch. App. 233. See also Hale v. Sheldrake, 60 L. T. 292, where 
 a husband of the tenant for life was ordered to replace a trust fund, 
 but without interest, as the wife had allowed him to receive the 
 income.
 
 346 THE CONSEQUENCES OF A BEEACH OF TEUST. 
 
 Art. 70. Yice-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 
 That being so, the court presumes the rate of interest made 
 upon money to be the ordinary rate of interest, viz., 
 5 (ii) per cent. I cannot, however, think the decree correct 
 in directing half-yearly rests, because the principle laid 
 down in the case of the 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 compoimd 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 trade, he will be made liable 
 for compound interest, because trade capital is presumed to 
 5'ield it ; but that that reason had no application to capital 
 employed in a solicitor's business, upon which a sohcitor is 
 frequently receiving no interest at all. 
 
 3. 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 calhng in of the trust moneys for 
 the purpose of embarking them in the trade or speculation ; 
 a mere neglect to withdraw funds already embarked by the 
 settlor in the trustee's trade, is not sufficient {v). 
 
 Illustrations of Paragraph (2). 
 
 IJabilityfor 1. Prior to the Ti-ustee Act, 1888 (51 & 52 Vict. c. 59), 
 
 loss cau.sed by ^yjjgi-Q a ^j^.ystgg invested the trust fund on mortgage, and 
 iiLSufficieiit IT, o o ' 
 
 advanced more than two-thirds of the value, that prima 
 
 fwcic constituted tlie. entire investment a breach of ti'ust. It 
 was not an investment which the trustee ought to have 
 made at all, and consequently having, by making it, com- 
 mitted a breach of trust, the whole item — the entire sum so 
 
 Partner- 
 trustee 
 allowing 
 trust fund 
 to remain 
 in business. 
 
 njortgage 
 security. 
 
 («) Now .3. 
 
 (r) Vy^t V. Foxttr, 8 Ch. App. .SOO. affirmed L. R. 7 H. L. 318.
 
 MEASUEE OF TRUSTEE'S RESPONSIBILITY. '^47 
 
 invested — was disallowed him in his accounts, and the Art. 70. 
 mortgage was either realized and he was charged with the 
 actual deficiency, or (at all events where the security was 
 wholly unauthorised and not merely deficient (x)) he was 
 directed to replace the entire sum, and upon doing so the 
 mortgage became his absolutely (y). 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 repay to the estate the whole of the amount in- 
 vested, recouping himself so far as possible out of the 
 mortgage. But although this is still the rule with regai'd 
 to securities generally, it is no longer so with regard to 
 mortgage securities where the only breach of trust was that 
 too 7nuch was advanced. In such cases s. 9 of the Trustee 
 Act, 1893 (56 & 57 Vict, c.53), (re-enacting s. 5 of the Act of 
 1888) provides, that where the mortgage security " would at 
 the time of the investment he a proper 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 unless the investment was a proper one in all other 
 respects than value {z) ; and, consequently, in cases 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 of trade property, or wasting property, such as mines or 
 brickfields or the like), a trustee will still be liable for the 
 entire sum invested. And where in such a case the trustee 
 in fault retires, the new trustees need not put him to his 
 election to take over the security, but may realize the 
 security without notice to him, and charge him with the 
 entire deficiency (a). 
 
 2. This, however, is not so where the security is one of 
 a class not authorised at all. In such cases, unless the 
 
 (x) Re Salmon, Priest v. Upplehy, 42 Cli. D. 351. 
 
 iy) Fry v. Tapson, 28 Ch. D. 282 ; Re Whiteley, Whiteley v. Learoyd, 
 ,33 Ch. 1). , at p. 354. 
 
 (z) Re Walker, Walker v. Walker, 59 L. J. Ch. 386. And see also 
 Head v. Goidd, [1898] 2 Ch. 250. 
 
 (a) Re Salmon, Priest v. Upplehy, 42 Ch. D. 351.
 
 348 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 70. beneficiaries are under disability (6), they must give the 
 trustee the option of taking over the security before 
 realising it (c). 
 
 Art. 71. — Tlie Liability^ Joint and Several. 
 
 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 blameworthy (rZ) ; and a decree against 
 all may be enforced against one or more only (e). 
 
 Illustkation. 
 
 All parties All parties to a breach of trust are equally liable, and 
 
 e°uaUv' '^'^ there is between them no primary liability (/) ; and this 
 liable. liability is not confined to express trustees, but extends 
 
 to all who are actually privy to the breach of trust. Thus, 
 where trustees delegated their trusteeship to their solicitors, 
 who received the 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 liable, and that 
 judgment might be levied by the beneficiaries against the 
 solicitors only {g). 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 
 
 (h) Head V. Govld, [1898] 2 Cli. 250. 
 
 (r) l{i Salmon, Pric-it v. Upjihh}/, .supra. 
 
 (d) Wilwn V. Moore, 1 My. & K". 12(5 ; Li/se v. Kimjdom, 1 Coll. 184 ; 
 Ex parte Norrix, 4 VA\. App. 2S0. 'I'liis applies not only to express 
 triiHtee.s hut to all persons who meddle with the trust property with 
 notice of tlie trust. See Cowper v. Sloinhain, (iS L. 1\ 18. 
 
 (r) Atloriieipdi III nd v. ]\'i7s(>ii, (!r. & Pli. 28; Fletcher v. Gretn, 
 .•{.'{ Heav. 42(5." 
 
 (./■) I'er Mastei' of tli.' llolls, in Wilson v. Moore, 1 My. & K. 126. 
 
 ((/) doinper \. Sl()iie/iiini,V}H \j. 'V. IS; and scir also lili/thx. Fliidijatc, 
 1 1S!>I I I ('h. '.VM, and Art. HI, infra, wliere the liability of third parties 
 is more, fully discussed.
 
 THE LIABILITY, JOINT AND SEVERAL. 349 
 
 breach of trust on the part of the trustees. As Mr. Justice Art. 71. 
 
 Stirling put it in a recent case : " 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 " (h). 
 
 Art. 72. — No Set-off alloived of Gain on oiie 
 Breach against Loss on another. 
 
 A trustee is only liable for the actual loss in 
 each distinct and complete transaction which 
 amounts to a breach of trust, and not for the loss 
 in each particular item of it {i) ; but a loss in one 
 transaction or fund is not compensated by a gain 
 in another and distinct one (h) . 
 
 Illustkations. 
 
 1. In Vysc \. Foster {i), Q, testator devised his real and Where breach 
 
 personal estates upon common trusts for sale, making them °^ ^™^^ (.. 
 
 . . . " causes benent 
 
 a mixed fund. His trustees were advised that a few acres to the estate, 
 
 of freehold land which belonged to him might be advan- ^^''^ bable 
 tageously sold in lots for building purposes, and that, to 
 develop their value, it was desirable to build a villa upon 
 part of them. They accordingly built one at a cost of 
 £1,600 out of the testator's personal estate. The evidence * 
 showed that the outlay had benefited the estate, but Vice- 
 Chancellor Bacon disallowed the £1,600 to the trustees in 
 passing their accounts. The Court of Appeal (and subse- 
 quently the House of Lords), however, reversed this, the 
 Lord Justice James saying : "As the real and personal 
 estate constituted one fund, we think it neither reasonable 
 
 (/i) Re Blunddl, Blundell v. BlundeU, 40 Ch. IJ). 370. 
 {i) Vyse v. Foster, 8 Ch. App. 336, affirmed 7 H. L. 318. 
 (i) Wiles V. Gresham, 2 Drew. 258 ; Dimes v. Scott, 4 Russ. 19.3 ; 
 Ex parte Lewi>i, 1 G. & J. 69.
 
 350 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 72. nor just to fix the trustees with a sum, part of the estate, 
 bond fide laid out on other part of the estate, in the exercise 
 of their judgment as the best means of increasing the value 
 of the whole." 
 
 Loss on one 
 transaction 
 cannot be set • 
 off against 
 gain on 
 another. 
 
 2. In Wiles v. Greshavi (/), on the other hand, by the 
 negligence of the trustees of a marriage settlement, a bond 
 debt for £2,000 due from the husband was not got in, and 
 was totally lost. Certain other of the trust funds were 
 without proper authority invested in the purchase of land 
 upon the trusts of the settlement. The husband, out of his 
 own money, greatly added to the value of this land ; and 
 upon a claim being made against the trustees for the £2,000 
 they endeavoured to set-ofi against that loss the gain which 
 had accrued to the trust by the increased value of the land, 
 but their contention was disallowed, the two transactions 
 being separate and distinct. 
 
 3. Again, trustees had kept invested on unauthorised 
 security a sum of money which they ought to have invested 
 in consols, and which was in consequence depreciated. 
 Eventually part of the money was invested in consols, at a 
 far lower rate than it would have been if invested according 
 to the directions in the will. The trustees claimed to set- 
 off the gain against the loss, but were not allowed to do so ; 
 because " at whatever period the unauthorised security was 
 realised, the estate was entitled to the whole of the consols 
 that were then bought, and if it was sold at a later period 
 than it ought to have been, the executor was not entitled to 
 any accidental advantage thence accruing " [m). This case is 
 at first sight difficult to be distinguished from Vysc v. Foster, 
 but it will be perceived that the loss and gain resulted from 
 two distinct transactions. The loss resulted from a breach 
 of trust in not realising the sectu'ities, the gain arose from 
 a particular kind of stock being at a lower market value 
 than usual at the date at which the trustees bought it ; still 
 it may be reasonably doubted whether it would be followed 
 at the present day. 
 
 (/) 2 Drew. 2oS. /.'(, Hurktr, L'urcnshaw v. liarktr, 77 L. I'. 71-. 
 (///) l)imc)i V. Scott, 4 Hush. 1S5.
 
 WHEN SET-OFF ALLOWED. 351 
 
 4. Where, however, trustees committed a breach of trust Art. 72. 
 in lending trust moneys on mortgage, and upon a suit by 
 them the mortgaged property was sold, and the money paid 
 into court, and invested in consols pending the suit, and the 
 consols rose in value, the trustees were allowed to set-off 
 the gain in the value of the consols against the loss under 
 the mortgage, for the gain and loss arose out of one transac- 
 tion (n). It is, however, very difficult to reconcile this case 
 with the last one, but it seems to be reasonable and in 
 accordance with common sense. 
 
 Akt. 73. — Property acquired either ivholly or 
 partly out of Trust Property becomes liable 
 to tlie Trust. 
 
 (1) If a trustee has, in breach of trust, con- 
 verted trust property into some other form, the 
 property into which it has been so converted, 
 becomes subject to the trust. If all tlie bene- 
 ficiaries are sui juris, they can collectively elect 
 to adopt the breach, and take the property as it 
 then stands ; but if one of them objects to do so, 
 he may require it to be reconverted, and in that 
 case any gain accrues to the trust estate, and 
 any loss falls on the trustee (o). 
 
 (2) If a trustee has mixed trust moneys with 
 his own, or has, partly with his own and partly 
 with trust moneys, purchased other property, 
 then the beneficiaries cannot elect to take the 
 
 ('«) Fletcher v. Green, 33 Beav. 426. 
 
 (o) Seeder Pearson, J., Patten v. Guardians of Edmonton, 31 W. R. 
 785 ; Re Uallett, KiiatchhuU v. Uallett, 13 Ch. D. 096 ; Taylor v. Plumer, 
 3 M. & S. 562; Frith v. Cartland, 2 Hem. & M. 4:17; Hopper v. 
 Conyers, 2 Eq. 549 ; Lane v. Dighton, Amb. 409 ; Scales v. Baker, 
 28 Beav. 91 ; Cook v. Addison, 7 Eq. 466 ; Ernest v. Croysdill, 2 D. E. k. 
 J. 175 ; Ex parte Barker, 28 W. R. 522.
 
 352 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 73. whole of the mixed fund or the entire property 
 so purchased ; but if the mixed fund can be 
 traced (into whatever form it may have been 
 converted), the beneficiaries will be entitled to a 
 first charge thereon Q>) . 
 
 Illustrations of Paragraph (1). 
 
 \nth trust 
 nionej- 
 
 Stock bought 1. Thus, where money is handed to a broker for the 
 purpose of purchasing stock, and he invests it in unautho- 
 rised stock, and absconds, the stock which he has purchased 
 will belong to the principal, and not to the broker's trustee 
 in bankruptcy. For a broker is a constructive trustee for 
 his principal, and, as was said by Lord Ellenborough, " the 
 property of a principal, entrusted by him to his factor for any 
 special purpose, belongs to the principal, notwithstanding 
 any change which that property may have undergone in 
 form, so long as such property is capable of being identified 
 and distinguished fi'om all other property " (q). 
 
 Money pro- 2. So, if goods consigned to a factor be sold by him and 
 trust chattels. I'educed into money, yet if the money can be traced — as, 
 for instance, where it has been kept separate and apart 
 from the factor's own moneys, or kept in bags, or the 
 like (r), or has been changed into bills or notes (s), or into 
 any other form {t), or has been paid into the factor's 
 account at the bank (u) — the employer, and not the 
 creditors of the factor, will, upon his bankruptcy, be 
 entitled to the property into which it has been converted. 
 For the creditors of a defaulting trustee can have no better 
 right to the trust property than the trustee himself ; and it 
 makes no difference in this respect that the trustee com- 
 mitted a breach of tniat in converting the property; for an 
 
 {/j) Uf IIulUK, KiKilrhh,ill V. Ilnlhlt, 12 Ch. D. 696; Lupton v. 
 Whit', 1 ') Vfs. 4.S2 ; Fcnndl v. Difdl, 4 1). M. & G. .372 ; and see also 
 Hi I'iim]>hriy, Worcester, etc. Banking Co. v. Blick, '22 Ch. D. 255, 
 cited Mi/trn, p. .S27. 
 
 (q) Taylor v. I'lumtr, Kii/tra ; Ex parte Cooke, 4 Ch. I). 12."? ; He Hallett, 
 KnalrhlniU v. JIatktt, 18 Cli. D. 696. 
 
 (r) Tookn v. J/olliiiiiirorfh, 5 T. li. 277. 
 
 (m) Ex parte Dumait, 2 Vt-s. sen. .'582. 
 
 (t) Frllh V. Cartland, 2 II. m. k M. 417; Birl v. Birt, 11 Ch. 1). 
 
 1 1^. 
 
 (ii) /.V llidUtt, Kvalchhull v. llall.rtt, supra.
 
 PEOPERTY ACQUIRED OUT OF TRUST PROPERTY. 353 
 
 abuse of trust can confer no right on the person abusing it, Art. 73. 
 nor on those claiming through him (x). 
 
 3. So, where the trustees of a will invested trust moneys Sale by 
 in an unauthorised purchase of land, and afterwards con- ^^^„q^^J^ 
 tracted to sell it for a largely increased price, it was held wrongfully 
 that they were acting properly in so doing, and that the acciiured 
 concurrence of one beneficiary was sufficient to make a good moneys, 
 title, on the purchasers seeing that the purchase-money was 
 invested in the names of the trustees as trustees (y). For, 
 as Mr. Justice Pearson put it : "I see no reason why the 
 trustees should not now do what it was all along their 
 duty to do, and what the court would have ordered them to 
 do. At the same time, I agree that it would be proper to 
 take the concurrence of one of the cestuis que trusts, 
 because, if all of them elected to take their shares of the 
 land after it had been purchased, they would have been 
 entitled to do so ; but if one of them objected to take the 
 land, but required that it should be sold, then the others 
 could not compel him to take his share of the land as repre- 
 senting his share of the money." 
 
 Illusteations of Paeagkaph (2). 
 
 1. The case is comparatively simple where (as in the fore- Trust pro- 
 going illustrations) the trustee has spent or converted the ^^tlfother 
 trust property, and nothing but the trust property. It, property so 
 however, becomes more difficult when the trustee has ^^ ^° ^^ , 
 mixed the trust moneys with his own, and either kept the 
 mixed fund, or spent it in the purchase of other property. 
 The case then turns entirely upon the question, whether 
 the mixed fund, so formed, can be identified, or, if it has 
 been spent, whether it can be traced into the property which 
 has been purchased with it. If it has become so mixed up 
 with the trustee's private property as to render it impossible 
 to trace it (for instance, where it has been converted into 
 money, which has been put into circulation {z), or has other- 
 
 {x) Taylor v. Pliimer, supra. 
 
 (y) Patten v. Guardians of Edmonton, 31 W. R. 785. Although this 
 is the only reported case on the subject, it has been very frequently 
 followed in judges' chambers. 
 
 (z) Miller v. Race, 1 Burr. 452. 
 
 T. 2 a
 
 354 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 73. wise become indistinguishable), then, as the right of the 
 beneficiary is only to have the actual trust property or that 
 which stands in its place, or to have a charge on it, and as 
 the actual property is gone, and that which stands in its 
 place cannot be identified, the beneficiary can only proceed 
 against the trustee personally for the breach of trust, or, if 
 the latter be bankrupt, can only prove as a creditor (a). 
 
 Trust pro- 2. But where the mixed fund can be traced (as, for 
 
 with other instance, where the trustee has paid in the trust fund to his 
 property general banking account (b) ), the beneficiaries will have a 
 traced '^^^ ^ charge, or lien, upon the whole mixed fund. In the case 
 of Be Hallett, Knatchhull v. Hallctt (b), the late Sir George 
 Jessel, M.E., elaborately reviewed all the authorities 
 touching on this question. His lordship said : " Supposing 
 the trust money was 1,000 sovereigns, and the trustee put 
 them into a bag, and by mistake, or accident, or otherwise, 
 dropped a sovereign of his own into the bag ? I do not like 
 to call it a charge of 1,000 sovereigns on the 1,001 sovereigns, 
 but that is the effect of it. I have no doubt of it. It 
 would make no difference if, instead of one sovereign, it was 
 another 1,000 sovereigns. But if, instead of putting it into 
 his bag, or after putting it into his bag, he carries the bag 
 to his bankers, what then? According to law, the bankers 
 are his debtors for the total amount ; but if you lend the 
 trust money to a third person you can follow it. If in the 
 case supposed the trustee had lent the £1,000 to a man 
 without security, you could follow the debt and take it from 
 
 the debtor If instead of lending the whole 
 
 amount in one sum simply, he had added a sovereign, or 
 had added £500 of his own to the £1,000, the only difference 
 is this, that instead of taking the debt, the cestuis que trusts 
 would have a charge for the amount of the trust money on 
 the debt." 
 
 3. A judgment creditor of a stockbroker obtained a 
 garnishee order on a balance at a bank standing to the 
 
 («) Ex parte Dumas, 1 Ah. 2.S4 ; Scoti v. Surmnn, Willcs, 404 ; 
 J{f HallaU, Kx parte. Blanc, [1894] '2 Q. B. '2.S7. 
 
 (h) lin JIalktt, Knatchhull v. Jlallrlt, 18 Ch. 13. 696, overruling the 
 (]eoiHif)n of Fry, .T., in PJx parte. Dale, 11 Ch. 1). 772. But cf. and 
 di.st. lie. 1 1 all el I, /'Jx parte lilaiie, mi/ira, and Ejc parte, Fitzsimou, 
 '2.') L. II. Jr. 24.
 
 PROPERTY ACQUIRED OUT OP TRUST PROPERTY. 355 
 
 credit of the broker. All moneys in the bank to the broker's Art. 73. 
 credit, were, in fact, moneys received for clients. Since 
 money of a client had been paid in, drawings out in excess 
 of the then balance had been made. And so in the case of 
 another client. Except those two, there was no client who 
 claimed any part of the fund : — Held, on appeal, that as no 
 part of the moneys in the bank was the debtor's own, the 
 judgment creditor had no right against the balance (c). 
 Where, however, a trustee has overdrawn his banking 
 account, his bankers have a first and paramount lien on all 
 moneys paid in if they have no notice that they are trust 
 moneys (d) ; for where the equities are equal the law pre- 
 vails, and, in the case supposed, the bankers have in point 
 of law received the money in payment of their debt. 
 
 5. Again, trustees had power, with the consent of the 
 tenant for life, to sell the trust property, and they were 
 directed to invest the purchase-money in the purchase of 
 other real estate, to be settled on the like trusts. The trust 
 property was sold under this power for £8,440, and the 
 tenant for life was allowed (wrongly) to keep the purchase- 
 money. About the same time he purchased another estate 
 for £17,400, of which sum £8,124 was part of the above- 
 mentioned trust money. This estate was conveyed to him 
 in fee simple. The tenant for life ultimately became bank- 
 rupt, and it was held that, as against his assignees in 
 bankruptcy, the original trustees of the settlement had a 
 lien on the estate which he had purchased, to the extent of 
 the moneys invested in its purchase (e) . 
 
 8. However, wherever the trustee has mixed the trust No lien unless 
 fund with his own moneys, then, before a charge or lien it can bo 
 can be substantiated, it must be shown that the trust fund fi-ust fund 
 
 forms part of 
 
 (c) Hancock v. Smith, 41 Ch. D. 456. And see Mutton v. Peate, 
 [1900] 2 Ch. 79. But cf. Re Stenning, Wood v. Steiming, [1895] 2 Ch. 
 433, where Hancock v. Smith was distinguished. 
 
 (cZ) Thomson v. Clydesdale. Bank, [1893] A. C. 282 ; and see also 
 the still stranger case of Coleman, v. Bucks, etc. Bank, [1897] 2 Ch. 
 243, where the bank seems to have had notice tliat the fund was affected 
 with a trust of some kind. 
 
 (e) Price v. Blakemore, 6 Beav. 507 ; and see also Hopper v. Conyers, 
 2 Eq. 549 ; Middleton v. Pollock, 4 Ch. D. 49 ; and Cook v. Addison, 
 7 Eq. 466. 
 
 T. * 2 A 2
 
 356 THE CONSEQUENCES OF A BKEACH OF TEUST. 
 
 Art. 73. in fact forms part of the fund or property on which the lien 
 
 is claimed. Where, therefore, it appeared that the actual 
 
 a specific bank notes, of which the trust fund consisted, had not been 
 iimd or . ' • 1 1 T 
 
 property. paid by the trustee into his banking account, it was held 
 
 that the ccstuis que trusts had no lien on the balance lying 
 
 at the trustee's bankers, because the trust fund could not be 
 
 traced to the bank (/). Of course, if the trust fund could 
 
 have been proved to have been paid into the trustee's 
 
 account, then, notwithstanding that he might subsequently 
 
 have drawn out and paid in moneys, the lien would have 
 
 been upheld. 
 
 Aet. 74. — Anij of the Beneficiaries may compel 
 Performance of a neglected Duty or prevent 
 the Commission of Breach. 
 
 Where the court is satisfied that trust property 
 is in danger — 
 
 (a) by reason of the active {g) or passive iji) 
 
 misconduct of the trustees ; or 
 
 (b) by reason of the trustees residing out of 
 
 the jurisdiction of the court (i) ; 
 
 an injunction will be granted at the instance of 
 any person with jin existing, vested or contingent 
 interest (A-), either compelling the trustees to do 
 their duty (/), or restraining them from inter- 
 fering with the trust property {g), as the case 
 
 (/) Kx parte. Hardi'mlle, 20 W. R. filO. 
 
 (//) PJarl, Tulhol v. Scott, 4 K. & J. 1.S9 ; Middleion v. Dodmdl, 13 Ves. 
 2GG ; JJaiicc v. (•o/diiiyham, S Ch. A pp. 002. 
 
 (h) Foley V. JJiinii//, I Ji. (J. C. 277 ; Fhtchcr v. Fletcher, 4 Hare, 78. 
 
 {i) Noad V. Jkirkhowst, 2 Y. cSt C. C. C. .^)20. 
 
 (k) Lew. G97 ; Srott v. Bcche.r, 4 Pr. .S4(; ; but see as to contingent 
 ceMuiK rpic. trnntH, JJdvis v. Amjc.l, 10 W. R. 723 ; Cloives v. HiUiard, 
 4 VA\. l3. 413 ; Id' J'ursoii.'<, Stor/:/('i/ v. Parsons, 45 Ch. D. 51 ; and 
 Mol.ynmx v. Flctrhcr, [1808J 1 Q. U.' 048. 
 
 (I) See note (h), mipra.
 
 PEEFORMANCE OF A NEGLECTED DUTY. 357 
 
 may require ; and, if expedient, a receiver will Art^4. 
 he appointed (7?i). 
 
 Illustrations. 
 
 1. Thus, if one commits some trespass upon lands in the Right to 
 possession of the trustee, and the latter refuses to sue him, ^^^® name 
 the court will oblige him to lend his name for that purpose, in action at 
 on receiving a proper indemnity from the beneficiaries (n). law. 
 
 2. And so, if a tenant for life (who is a constructive trustee Trustee will 
 for this purpose) refuses to renew leaseholds, the court will ^^ ordered to 
 compel him to do so, and a receiver of the income of the 
 
 trust property will be appointed to collect a sufficient sum 
 to pay the renewal fine (o). 
 
 3. In Earl Talbot v. Scott {p), lands were vested in trus- Where same 
 tees by Act of Parliament, upon trust for sale, and subject persons trus 
 thereto, upon trusts inalienably annexing the rents to the conflicting 
 Earldom of Shrewsbury. The Earl of Shrewsbury attempted settlements, 
 to disentail (which of course he could not do efi'ectually), and 
 devised the lands to the same trustees, upon trust for a 
 particular claimant of the title. The trustees accepted this 
 
 trust, and claimed to receive the rents in that character, 
 pending proceedings by the plaintiff to establish his claim 
 to the earldom. A receiver of the rents was, however, 
 appointed on his application, upon the ground that the 
 trusts of the will were in conflict with the prior trusts upon 
 which they held the estate. 
 
 i. The court will appoint a receiver and grant an injunc- Beneficiaries 
 tion where, from the character or condition of the trustee, ™^y. S^^ * 
 he is not a fit person to have the control of the trust pro- appointed 
 perty; as, for instance, where he is insolvent (g') , or about where pro- 
 to become bankrupt (r), or is a person of dissolute habits, or Manser" 
 dishonest (s). 
 
 (m) See cases in note (g), and Bennett v, Colley, 5 Sim. 192. 
 
 (n) Foley v. Burnell, supra. 
 
 (o) Bennett v. Colley, mpra, and Trustee Act, 1893 (56 & 57 Vict. 
 c. 53), s. 19. 
 
 (p) Supra. 
 
 (q) Mansfield v. Shau\ 3 Madd.lOO; Gladdon v.Stoneman, 1 Madd. 
 143 n., followed in Bowen v. Phillips, [1897] 1 Ch. 174. 
 
 (r) Re H.'s Estate, 1 Ch. D. 276. 
 
 (s) See Everett v. Prythergch, 12 Sim. 365.
 
 358 
 Art. 74. 
 
 Injunction 
 granted to 
 restrain im- 
 proper sale. 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 5. Again, the court will grant an injunction to restrain a 
 sale by trustees at an undervalue (t) (although this was at 
 one time doubted (u) ). 
 
 Art. 75. — Fraudulent Breach of Trust is a 
 Crime. 
 
 A trustee who fraudulently appropriates or 
 disposes of the trust property, in any manner 
 inconsistent mth the trust, is guilty of a mis- 
 demeanour, and is liable to a maximum punish- 
 ment of seven years penal servitude ; but no 
 criminal proceedings can be instituted without 
 the sanction of the Attorney or Solicitor-General, 
 or (if civil proceedings have been commenced) of 
 the judge of the court wherein they have been 
 commenced (x). The fact, that a breach of trust 
 is a crime, does not affect the validity of any 
 civil proceeding, nor any agreement for restora- 
 tion of the trust property (t/). 
 
 {t) Ano7i., 6 Madd. 10; and see Webb v. Earl of Shaftesbury , 7 Ves, 
 488 ; Mi/li(jan v. Mitchell, 1 My. & K. 446 ; Dance v. Goldingham, 
 Ch. App.' 902. 
 
 (m) Pechel v. Fowler, 2 Anst. 549. 
 (x) 24 & 25 Vict. c. 96, s. 80. (y) lb., s. 86.
 
 I 
 
 ( 359 ) 
 
 CHAPTER II. 
 
 PROTECTION ACCORDED TO TRUSTEES IN CASE OF 
 BREACH OF TRUST. 
 
 ART, PAGE 
 
 76. — General Protection where they have acted Reasonably and 
 
 Honestly --------- 359 
 
 77. — Statute of Limitations 362 
 
 78. — Protection against the Acts of Co-Trustee - - - - 367 
 79. — Concurrence of or Release by the Benefiamries - - - 369 
 80. — Trustees generally entitled to Contribution inter se, but may 
 he entitled to be Indemnified by Co-Trustee or Beneficiary 
 who instigated breach ------- 374 
 
 AnT. 76. — General Protection where tliey have 
 acted JReasonahly and Honestly. 
 
 If it appears to the court that a trustee {a) is 
 or may be personally liable for any breach of 
 trust, but has acted honestly and reasonably, and 
 ought fairly to be excused for the breach or for 
 omitting to obtain the directions of the court in 
 the matter in which he committed such breach, 
 then the court may relieve him, either wholly or 
 partly, from personal liability for the same {h). 
 The onus of proving honesty and reasonableness 
 is cast upon the trustee (c), and depends on the 
 circumstances of each case, no general principle 
 or rule being possible (cZ). 
 
 Illustrations. 
 
 1. This is a new statutory rule introduced for the first Act requires 
 
 time in the Judicial Trustees Act, 1896 (59 & 60 Vict. c. 35). reasonable- 
 
 ^ ness cLS well 
 
 as honesty. 
 (a) Judicial Trustees Act, 1896 (59 & 60 Vict. c. 35), s. 4. It includes 
 a judicial tri;stee. 
 
 (6) Ih. The Act is retrospective. 
 
 (c) Re Stuart, Smith v. Stiiart, [1897] 2 Ch. 583. 
 
 (d) Re Turner, Barker v. Irimey, [1897] 1 Ch. 536 ; Re Barker, 
 Ravenshaw v. Barker, 77 L. T. 712 ; Re Stuart, Smith v. Stuart, supra.
 
 360 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 76. It is not confined to judicial trustees, but is equally appli- 
 cable to all trustees, and is retrospective (e). It will be 
 perceived that two circumstances must co-exist to entitle a 
 trustee to the benefit of the section, viz., he must have acted 
 (1) honestly, and (2) reasonably. Honest folly is not 
 excused (/). 
 
 Examples of 2. Thus, where the breach of trust consists in investing 
 conduct. the trust funds upon insufficient mortgage security, inimd 
 
 facie the requirements of s. 8 of the Trustee Act, 1893 (56 & 
 57 Vict. c. 53), as to the employment of an independent 
 surveyor constitute a standard by which the reasonable con- 
 duct is to be judged, although non-compliance with those 
 requirements is not necessarily a fatal obstacle to an applica- 
 tion for relief ; it is also a matter of consideration whether 
 the trustee would have acted in the same way if he had 
 been lending money of his own. Where, therefore, the 
 trustee acted on the valuation of a valuer employed by the 
 solicitor who acted for the mortgagors also, and the valua- 
 tion in one case merely stated the amount for which the 
 property was a good security, without stating the value of 
 the property itself, and in another, although the value was 
 stated, the sum advanced exceeded two-thirds of that value, 
 it was held that no relief could be given to the trustee {g). 
 
 3. So, again, it has been held that a trustee does not act 
 reasonably (however honest he may have been) in allowing 
 his co-trustee to receive trust money without inquiry as to 
 its application {Ji) ; or in allowing his co-trustee to act 
 without check or inquiry (?"), even where he is a solicitor who 
 transacts the trust business (y). However, the above cases 
 and those which follow, must only be taken as examples of 
 the general trend of judicial opinion, as, in the words of 
 Byrne, J., it is " impossible to lay down any general rules 
 or principles to be acted on in carrying out the provisions of 
 
 (e) See s. .3 of Act. 
 
 (/) y?e Turner, Barhr v. Inmri/, flS971 1 Cli. 536; Re Barker, 
 liariji.shnin v. BdrLir, 77 L. T. 71- ; I'l S/mtrf, Sniifh v. Stuart, supra. 
 {(f) Jic. Stuart, Smith v. Stuart, 1 1S!)71 2 Cli. 583. 
 ill) Wynne, v. Tempest., 1.3 T. I.. \i. 'MiO. 
 
 (i) Ri' J)ulwirh, etc. Sorirti/, Mutll v. I'rarce, 68 L. J. Ch. 196. 
 (j) lie Turner, Barker v. Jriint i/, supra.
 
 GENERAL PROTECTION, ETC. 
 
 361 
 
 the section, and I think that each case must depend upon Art. 76. 
 
 its own circumstances " (k). • 
 
 4. On the other hand, a mistake of law in consequence of Examples of 
 which leaseholds were sold, although there was no power of reasonable 
 sale, has been held to be reasonable and excusable (Z) ; and 
 
 so has the payment by executors to their solicitor of money 
 for the specific purpose of paying debts and administration 
 expenses which the solicitor misappropriated (m). Wilful 
 •default in not suing a debtor to the estate has been excused 
 where the trustee had reasonable grounds for believing that 
 proceedings would have been ineffectual (ji) , and also where 
 the debt was small, and he reasonably believed that the 
 ■debtor was a man of good credit, and that having regard to 
 the testator's will, he was not bound to take proceedings (o). 
 
 5. So where a testator left an estate of £22,000, and it 
 appeared that his debts only amounted to £100 or so, it was 
 held that the executor acted reasonably in paying the widow 
 .an immediate legacy of £300, and in permitting her (under 
 the trusts of the will) to receive so much of the income of 
 the estate as was necessary for the maintenance of herself 
 and family, before advertising for claims, although it sub- 
 sequently turned out that there was a large claim for 
 fraudulent misappropriation of rents received and not 
 accounted for by the testator, which caused bis estate to be 
 insolvent (jj). But the executor was not excused for 
 allowing the widow to take the income after the claimant 
 had issued his writ ; and, apparently, the learned judge 
 (EoMER, J.) felt considerable doubts as to whether he ought 
 to have excused payment of income after the executor had 
 notice of the claim. 
 
 {Jc) Per Byrxe, J., He Turner, Barker v. Ivimey, supra, and per 
 EoMER, J., Re Kay, Mosley v. Kay, [1897] 2 Ch., at'p. 524. 
 (/) Perrins v. Bellamy, [1898] 2 Ch. 521. 
 
 (m) Re Lord de Clifford, de Clifford v. QMilter, [1900] 2 Ch. 707. 
 \n) Re Roberts, Knight v. Roberts, 76 L. T. 479. 
 (o) Re Grindey, Clews v. Grindey, [1898] 2 Ch. 593. 
 (p) Re Kay, Mosley v. Kay, [1897] 2 Ch. 518.
 
 362 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 77. 
 
 Art. 77. — Statute' of Limitations. 
 
 (1) In any action or other proceeding against 
 a trustee {cf) or any person claiming through 
 him (r), except where 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 and converted to his use, the following 
 provisions shall apply : — 
 
 (a) All rights and privileges conferred by any 
 
 statute of limitations shall be enjoyed 
 in the like manner and to the like extent 
 as they would have been enjoyed in such 
 action or other proceeding if the trustee 
 or person claiming through him had not 
 been a trustee or person claiming through 
 him : 
 
 (b) If the action or other proceeding is brought 
 
 to recover money or other property, and 
 is one to which no existing statute of 
 limitations applies, the trustee or person 
 claiming through him shall be entitled 
 to the benefit of and be at liberty to 
 plead the lapse of time as a bar to such 
 action or other proceeding in the like 
 manner and to the like extent as if the 
 claim had been against him in an action 
 of debt for money had and received, but 
 so nevertheless that the statute shall 
 
 {7) Dock Tint ;i])])ly to a ttustiu! in l)iviikrii])tcy {He Cornish, [1896] 
 1 Q. 15. 1)!)), luit (lues ii])|)ly to !i (lirt'ctor (jf a company (He Lands Allot- 
 mmt, Co., LJWMJ I Cli. (i-J(i, and Whilirnm v. Wnthin, 78 L. T. 188). 
 
 (r) Thin docH not apply to an action .against hcnoficiaricB by third 
 parties on the ground tliat th(;y claim through a trustee [Leahy v. 
 J>e Moliyns, |ls!)()| I Ir. M. tioG). As to concealed fraud sec Be. 
 McCallum, McCaHvm v. McCaUvm, [1901J 1 Ch. 143.
 
 STATUTE OF LIMITATIONS. 363 
 
 run against a married woman entitled in Art. 77. 
 possession for her separate use, whether 
 with or without a restraint upon antici- 
 pation, but shall not begin to run against 
 any beneficiary unless and until the 
 interest of such beneficiary shall be an 
 interest in possession (s). 
 
 (2) No beneficiary, as against whom there 
 would be a good defence by virtue of this section, 
 shall derive any greater or other benefit from a 
 judgment or order obtained by another bene- 
 ficiary than he could have obtained if he had 
 brought such action or other proceeding and this 
 section had been pleaded. 
 
 The above article, which is a reprint of s, 8 (1), (2), of 
 the Trustee Act, 1888 (51 & 52 Vict. c. 59), has completely 
 revolutionised the law, but it is unfortunately by no means 
 free from ambiguity. Indeed, it is extremely difficult to 
 understand what paragraph (a) of sub-s. (1) was aimed at. 
 It could not have been aimed at claims for the recovery of 
 land or other property, or the proceeds thereof retained by 
 the trustee personally, because such claims are expressly 
 excluded. Nor could it have been aimed at claims against 
 purchasers from the trustee with notice of a breach of trust, 
 because such claims are already provided for by s. 25 of 
 7 Will. 4 & 1 Vict. c. 28. Nor, it is conceived, could it 
 have been intended to apply to actions for what may be 
 called negligent breaches of trust, or breaches arising from 
 mistake or the like, because such actions are for equitable 
 wrongs sui generis arising neither out of tort or contract, 
 and not falling within the provisions of any existing Statute 
 of Limitations (t) ; indeed, such claims are obviously in- 
 tended to be provided for by paragraph (b). The conundrum 
 
 (s) As to when the statute begins to run in cases where the plaintiff 
 has always been in possession, but acquires a new title, see Mara v. 
 Browne, [1895] 2 Ch. G9, sed qztrere. Although this case was subse- 
 quently reversed ([1896] 1 Ch. 199), it was on another point. 
 
 {t) See He Boivden, Andrew v. Cooper, 45 Ch. D. 444.
 
 364 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 77. 
 
 Failure to 
 convert 
 according to 
 imperative 
 direction. 
 
 The whole 
 fund ex- 
 pended in 
 maintenance. 
 
 Mortgage of 
 
 inHutticient 
 
 value. 
 
 proved too tough for Sir Edward Fey(7<), but the Court 
 of Appeal grappled with it in the subsequent case of How v. 
 Earl Winter ton [x), and expressed an opinion that there 
 might be cases (such as a claim for an account) where the 
 old statutes of limitation appHed unless the claim was against 
 a trustee; and Eigby, L.J., hinted that where the trust 
 was created by deed executed by the trustee, there might 
 possibly be an action on the implied covenant by him to 
 perform the trust, which would only be barred after twenty- 
 years. 
 
 Illusteatioxs of Paeagkaph (1). 
 
 1. Trustees, in breach of trust, carried on a testator's 
 business until the youngest child attained twenty-one in 
 the year 1882, when they sold everything, and divided the 
 proceeds between all the children. In 1890, one of these 
 children commenced an action seeking to make the trustees 
 liable for a loss incurred through carrjing on the business. 
 It was held, however, that it was not an action for a legacy to 
 which twelve years was a bar under 37 & 38 Vict. c. 57, 
 s. 8, but an action for breach of trust to which no existing 
 statute of limitations applied prior to 1889, and that, con- 
 sequently, under the Act of 1888, s. 8 (1) (b), the lapse 
 of six years was a bar {y). 
 
 2. Where property was held in trust for an infant on 
 attaining twenty-one (which he did in 1880), and in 1892 he 
 sued the trustee for an account, and the trustee deposed 
 that he had (which was not contradicted) expended the 
 entire fund in the maintenance and education of the infant, 
 it was held that the Act of 1888 barred any claim to an 
 account or other relief {z). 
 
 3. In August, 1878, trustees committed an innocent 
 breach of trust, by investing on mortgage of property of 
 insufilicient value. The mortgagee paid interest direct to 
 the tenant for life until 1890. In 1892, the tenant for life 
 and infant remainderman brought an action to compel the 
 
 (h) Ih. {x) [1896] 2 Ch. 626. 
 
 (y) Ha. Strain, Swain v. Brimiemnv, [1891 ) .'i Ch. 233. 
 (:) lit Patje, Jones v. Monjun, [1893J 1 Ch. 304.
 
 STATUTE OF LIMITATIONS. 3G5 
 
 trustees to make good the amount invested, and it was Art. 77. 
 conceded that, qua the remainderman, they had no defence. 
 It was, however, held, that, qtcd the tenant for life, his 
 right to complain was barred at the expiration of six years 
 frovi the date of the investment, that being the date of the 
 breach of trust (a). 
 
 4. The Act is applicable to a claim for accounts to the Applicable 
 
 extent that the plaintiff cannot pick holes in the account for *° ^ claim 
 
 . , „ ,• /7x tor accounts. 
 
 more than six years before action (6). 
 
 5. "Where a husband forcibly deprived a wife of a legacy Defendant 
 given to her for her separate use, and retained it until his retaining 
 death, it was held that her executors could not plead the property 
 statute in answer to an action by the wife. For the husband cannot plead 
 took the property with notice of the trust affecting it, and 
 
 was, therefore, an express trustee (c). 
 
 6. The statute affords no defence to an action against a statute has 
 firm of solicitors who have falsely told their client that "° apphca- 
 money which he had intrusted to them for investment had there has 
 been, in fact, invested on mortgage, the truth being that a been a false 
 clerk of the solicitors had embezzled it {d). made. 
 
 7. The exceptions in s. 8 of the Act of 1888, do not How far the 
 prevent a trustee having the benefit of the statute, because ^ct applies 
 
 ,T . , e -I -I -I • im ■ 1 •. where trustee 
 
 the trust fund advanced on an msunicient security was, ^j^g remotely 
 
 in fact, applied by the borrower in payment of a debt to benefited by 
 
 his bankers, of whom the trustee was one (e). reaci. 
 
 8. The statute is none the less applicable because the Embezzle- 
 money has been embezzled, and is retained by one who was ment by 
 the trustee's agent (/). ^™^^^® ^ 
 
 (a) Be Somerset, Somerset v. Lord Poulett, [1894] 1 Ch. 231.) 
 
 {h) How V. Earl Winterton, [1896] 2 Ch. 626. For form of order, as 
 
 subsequently amended, see (S. C. , as reported in 79 L. T. 344, and 
 
 Re Daides, Ellis v. Roberts, [1898] 2 Ch. 142. 
 
 (c) Wassell v. Leggatt, [1896] 1 Ch. .554. 
 
 (d) Moore v. Knight, [1891] 1 Ch. 547 ; and see also Rochefoucaxdd v 
 Boustead, [1897] 1 Ch. 196. 
 
 (e) Re Ourney, Mason v. Mercer, [1893] 1 Ch. 590 ; and see Chillinq- 
 worth V. Chambers, [1896] 1 Ch. 685 ; Butler v. Butler, 7 Ch. D. 116 ; 
 and Whitney v. Smith, 4 Ch. App. 513. 
 
 (/) Thorne v. Heard, [1895] A. C. 495.
 
 366 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 77. 9. It has been held that trustees of a void charitable 
 
 conveyance, if in possession for twelve years, gain a title 
 
 How far j^y ^j^g ordinary Statute of Limitations, on the ground that 
 
 applicable to the express trust was illegal, and that the resulting trust, 
 
 illegal trust, although discoverable on the face of the settlement, was 
 
 inconsistent with it[g). 
 
 Resulting 
 trust de- 
 pending on 
 absence of 
 
 10. But on the other hand, in Patrick v. Simpson (h), 
 where there was a resulting trust depending, not on the 
 illegality, but on the absence of an express trust, it was 
 express trust, j^gj^ ^j^g^^ ^^le trustee could not retain the property and plead 
 the statute. 
 
 Other con- 
 structive 
 trusts. 
 
 Trust 
 apparently 
 constructive, 
 but really 
 express. 
 
 Charges. 
 
 11. However, a resulting or other constructive trust 
 depending upon evidence outside the written instrument, 
 was always within the Statutes of Limitation (i) . Therefore, 
 a tenant for life of leaseholds who renews in his own 
 name(^), or a mortgagee in possession (even although the 
 mortgage be in the form of a trust (Z)), is entitled to plead 
 the statute and keep the property. 
 
 12. But, although as a general rule, constructive trustees 
 can avail themselves of the statute while keeping the 
 property for their own benefit, the mere fact that a person 
 is called an agent instead of a trustee, does not confer on 
 him the statutory protection accorded to constructive 
 trustees, if he was, in fact, expressly trusted with money or 
 property for a particular purpose ; for in that case he 
 becomes an express trustee (m). 
 
 13. Simple charges are expressly provided for by the 
 old statute (u). Where, however, a charge is so coupled 
 with a trust as to be in reality a trust itself, the old statutes 
 did not apply. For instance, where a testator charged his 
 ])roporty with payment of his debts, and imposed an obliga- 
 tion on tlio devisee to exert himself actively in paying the 
 
 {!/) Chiircher v. Mar/in, 42 Ch. 1). .312 ; Jle Lacy, Boyal General 
 T/ioUricuf Fund Anxormtion v. Kydd, [IS!)!)] 2 Cli. 14i). 
 
 (h) 24 (>). 15. 1). 12S, f'()ll(.wiiig kut.cr v. C'(iri(iiaijh, 1 1). & Wal. 668. 
 
 (/) I'xrhford.w ir^^fA, 17 Vcs. !)7. 
 
 (/•) I'llrc V. I'ltrc, 1 Drew. ;{71. 
 
 (/) Lochiiiij V. rarbr, S Cli. Apj). 80. 
 
 (?/i) Noi! IhiriUrk v. (I'drn'rk, .5 Cli. Apj). 2:VA ; Fo/ri/ v. Jfilf, 
 2 U. L. Cas. 2« ; and lie Bdl, Lake v. Ihll, ;54 Cii. D. 462 ; Doohy v. 
 Wilt mil, .*{!)( ;ii. 1). 181. 
 
 (,i) :{&.| Will. 4, c. 27, 8. 40.
 
 PBOTECTION AGAINST THE ACTS OF CO-TRUSTEE. 367 
 
 debts, the case did not fall within the old statutes (o) ; and Art. 77. 
 it is conceived that it would not fall within the provisions " 
 
 of the new Act. 
 
 Aet. 78. — Protection against the Acts of 
 Co-Trustee. 
 
 (1) A trustee is not answerable for the receipts, 
 acts, or defaults of his co-trustee (_p), save only — • 
 
 (a) where he has liancled the trust property 
 
 to him without seeing to its proper 
 application ; 
 
 (b) where he allows him to receive the trust 
 
 property without making due inquiry as 
 to his dealing with it {cf) ; 
 
 (c) where he becomes aware of a breach of 
 
 trust, either committed or meditated, 
 and abstains from taking the needful 
 steps to obtain restitution and redress, or 
 to prevent the meditated wrong (r). 
 
 (2) Even in the above three cases he may, by 
 express declaration in the settlement, be made 
 irresponsible (s). 
 
 Illustrations. 
 
 1. Thus, in the case of Wilkins v. Sogg (t), which now Leading case, 
 governs the subject, a testatrix, after appointing three 
 
 (o) Hunt V. Bateman, 10 Ir. Rep. Eq. 360. 
 
 (p) Dawson v. Clarice, 18 Ves. 254; and as to settlements made 
 since, see 22 & 23 Vict. c. 35, s. 31. 
 
 {q) See Wynne v. Tempe-^t, 13 T. L. R. 360. 
 
 (r) Millar's Trustees v. Poison, 34 So. L. R. 798. 
 
 (s) As to the whole of the article, see judgment of Westbury, L.C, 
 in Wilhins v. Hogg, 3 Giff. 116 ; 8 Jur. (n.s.) 25 ; and see also Dix v. 
 Burford, 19 Beav. 409 ; Muchlow v. Fuller, Jac. 198 ; Brumridge v. 
 Brumridge, 27 Beav. 5. 
 
 (t) Supra.
 
 368 THE CONSEQUENCES OF A BEEACH OF TRUST. 
 
 Art. 78, 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 pur- 
 poses 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 two 
 insurance companies for two sums of money paid by them, 
 but two of the trustees permitted then* 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 Westbuky 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 ; secondly, 
 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 com- 
 mitted or meditated, and abstains from taking the needful 
 steps to obtain restitution or redress. The framer of the 
 clause under 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. He 
 would still be answerable for collusion if he handed over 
 trust money to his co-trustee with reasonable gi-ound for 
 believing or suspecting that that trustee would commit a 
 breach of trust ; but no such case as this was made by 
 the bill." 
 
 2. In the recent case of Pass v. Dundas (u), the settle- 
 ment 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 
 
 («) 29 W. K. 3:^2.
 
 CONCUERENCE OF OR RELEASE BY BENEFICIARIES. 
 
 to draw money out of the bank for the purposes of the 
 business, which money the co-trustee misapplied. It was 
 held that, under the words of the clause, the trustee was 
 protected. 
 
 3()9 
 
 Art. 78. 
 
 Art. 79. — Concurrence of or Belease by the 
 Beneficiaries. 
 
 A beneficiary who has assented to, or con- 
 curred in, a breach of trust (x), or who has 
 subsequently released or confirmed it (y), 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 (^) ; 
 
 (b) that he had full knowledge of the facts and 
 
 knew what he was doing (a), and the 
 legal effect thereof (5), or has had and 
 retains the benefit of the breach (c) ; 
 
 {x) Brice v. Slohes, 11 Ves. 319; Wilkinson v. Parry, 4 Riiss. 272 ; 
 Nail V. Punter, 5 Sim. 555 ; Life Association of Scotland v. SiddaJ, 
 3 De G. F. & J. 58 ; Walker v. Symonds, 3 Sw. 64 : Evans v. Benvon, 
 37 Ch. D. .329. 
 
 {y) French v. Hohson, 9 Ves. 103; Wilkinson v. Parry, supra; 
 Creswell v. Dewell, 4 Giff. 465. 
 
 (z) Underwood v. Stevens, 1 Mer. 717 ; Leach v. Leach, 10 Ves. 517 ; 
 Lord Mont ford v. Cadoyan, 19 Ves. 9. 
 
 (a) Be Garnett, Gandy v. Macaidey, 31 Ch. D. 1 ; Buckeridqe v. 
 Glasse, 1 Cr. & Ph. 135 ; Hughes v. Wills, 9 Hare, 773 ; Cocker'ill v. 
 Cholmeley, 1 R. & M. 425 ; Strange v. Fooks, 4 Giff. 408 ; Murch ^-. 
 Bu,<isell, 3 My. & Cr. 31 ; Aveline v. Melhuish, 2 D. J. & S. 288. 
 
 (?>) Re Garnett, Gandy v. Macauley, siipra ; Cockerill v. Chohnelei/, 
 supra ; Marker v. Marker, 9 Hare. 16 ; Burroivs v. Walls, 5 D. M. 
 & G. 254 ; Stafford v. Staford, 1 D. & J. 202 ; Strange v. Fooks, supra. 
 
 (c) Crichton v. Crichton, [1895] 2 Ch. 853.
 
 370 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 ■^^^9. (c) that no undue influence was brought to 
 bear upon him to extort the assent or 
 release (d). 
 
 Distinction The reader must carefully distinguish between the 
 
 rightTo I'ules stated in the present article, and those stated in 
 
 plead con- Art. 80, infra. The present article relates exclusively 
 
 currence and ^^ ^j^g circumstances under which a trustee may plead 
 
 indemnitJ^ concurrence or assent, by way of defence to an action by 
 
 the concurring or assenting beneficiary. Article 80, 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. 
 
 Plaintiff 
 party to 
 breach of 
 trust. 
 
 Release. 
 
 Illustkations. 
 
 1. stock was settled on a married woman for her separate 
 use for life, with a power of appointment by will. The 
 trustees, at the instance of the husband, sold out the stock 
 and paid the 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 
 appointed the stock to the husband. He then filed a bill 
 against the trustees, claiming the stock under the appoint- 
 ment, and praying for the same relief as his wife might 
 have had. It is needless to say that his claim was promptly 
 rejected (e). 
 
 2. A formal release under seal, or an express confirma- 
 tion, will, of course, estop a beneficiary from instituting 
 subsequent proceedings ; and it would seem that any 
 positive act or expression indicative of a clear intention 
 to waive a breach of trust, will, if supported by valuable 
 consideration {Jiowevcr sliyht), be equivalent to a release (/). 
 
 {(/) /loirlrs V. Sleirarf, 1 Sch. & Lif. 226; Chesterjicld v. Jamsen, 
 2 VcH. Hcii. 12.'). 
 
 {('.) Nail V. Punter, 5 Sim. .'i.l.^. 
 
 (/) iSuo Stackhoibie v. Jiani-s/on, 10 Vos. 456; per Sir W. Grant; 
 and FurraiU v. Blanchford, 11 W. R. 178.
 
 CONCUERENCE OF OR RELEASE BY BENEFICIARIES. 371 
 
 3. Even before the Trustee Act, 1888 (51 & 52 Vict. c. 59), Art. 79. 
 a beneficiary under a declared trust might disentitle himself ~ 
 to relief by acquiescence. Thus A., being greatly in debt, -Acquiescence, 
 executed a deed of trust for the benefit of his creditors, and 
 among the property was the benefit of a lease for lives, 
 renewable for ever, on which the rent reserved was a high 
 rack rent. The tenant under this lease complained, and 
 the trustee, with the knowledge, but without the consent of 
 A. (but with the consent and approbation of A.'s brother, 
 who had the management of A.'s affairs), accepted a 
 reduced rent. A. 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 trust, the trustee could not 
 be called upon to make up the deficiency (g). 
 
 5. So where, with full knowledge of a breach of trust, 
 no step was taken for many years, it was held that the 
 beneficiaries had lost their right to make any claim (h). 
 
 5. But, although long acquiescence is a bar to relief, the Laches not 
 reason for holding so is, that the fact of lying by for a '^^^ays a bar. 
 considerable period, is evidence of an intention or election 
 on the part of the beneficiary, not to exercise his strict 
 rights. Consequently, where the circumstances are such as 
 to afford no ground for any such presumption, acquiescence, 
 however long, will be no bar to relief unless the Statute of 
 Limitations is applicable (i), or unless under special circum- 
 stances it appears to be for the general convenience that a 
 suit in respect of a long dormant grievance should be dis- 
 allowed. In that case the court will refuse relief on the 
 ground that " Exj^edit reijntblicce ut sit finis litium." For 
 instance, where a plaintiff seeks to set aside a purchase 
 obtained from him by bis solicitor, a delay of less than 
 twenty years may bar the right to relief, if it would be 
 inconvenient to grant it (A;). So where, in an action for an 
 
 (<j) McDonnell v. White, supra. 
 
 (h) Sleeman v. Wilson, 13 Eq. 36 ; and see also Jones v. Higgins, 2 En. 
 538. 
 
 (i) See and consider Be Cross, Harston v. Tenison, 20 Ch. D. 109 ; 
 and see also Farrant v. Blanchford, 11 W. R. 178. 
 
 {k) Gresley v. Mousley, 4 D. & J. 78.
 
 372 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 79. account, the plaintiff by lying by has rendered it impossible 
 or very inconvenient for the defendant to render the 
 account, he will get no relief (/). 
 
 Illustkatioxs of Sub-paeageaph (a). 
 
 Infants 1. An infant cannot lose his right to relief, either by con- 
 
 release or ° currence or release ; for the law presumes that he has not the 
 acquiescence, requisite discretion to judge. 
 
 Married 2. Even where a married woman is entitled to the fund 
 
 women, how f^j, -^q^. separate use, either expressly or under the Married 
 releasing or Women's Property Act, 1882 (15 & 46 Yict. c. 75), without 
 acquiescing, restraint or anticipation, the court looks with grave suspicion 
 upon a defence that she has concurred in or assented to a 
 breach of trust, as will be seen infra, p. 380. And where it 
 is not her separate property, of course she can in any event 
 onlj'' concur by deed executed with her husband's consent 
 and with all the formalities required by the statutes 3 & 
 4 Will. 4, c. 74, or 20 & 21 Vict. c. 57, as the case may be. 
 But if she is restrained from alienating or anticipating it (m), 
 she is not competent to consent to, or to release, a breach 
 of trust at all ; and her concurrence or release would, at all 
 events before the passing of the Trustee Act, 1888 (51 & 
 52 Vict. c. 59), afford no protection to the trustee even if 
 the breach had been procured by her fraud (n). However 
 (as will be seen from Article 80, infra), by s. 45 of the 
 Trustee Act, 1893 (56 Sc 57 Vict. c. 53) (which re-enacts s. 6 
 of the Act of 1888), the court may, if it tJiinks fit, impound 
 the interest of a married woman restrained from alienation, 
 who has instigated, or requested, or consented in writing to 
 a breach of trust, for the purpose of indemnifying the 
 trustee. It is somewhat curious, that although the Act 
 gives the court this discretionary power of indemnifying the 
 trustee, it does not enable the trustee to set up the instiga- 
 tion or consent as a defence. It is conceived, therefore, that 
 
 (/) See per Lord Alvanley, in Pickering v. Stamford, 2 Ves. 272 ; 
 and see (iIro Cle'/i/ v. Kdmonxton, 3 Jur. (x.s. ) 299 ; Tatam v. WiUiamx, 
 3 Hare, 347. 
 
 (/;;) Stdiileij v. S/>nif< ;/, 7 Cll. D. •">S!). 
 
 (//) Slaiiley V. Stiiiilei/, Hiijira ; Shnrp v. Foy, 4 Ch. App. 85, and see 
 
 Jie Liwh, Hi. rm.
 
 CONCUKEENCE OF OR RELEASE BY BENEFICIARIES. 373 
 
 if a married woman who comes within the provisions of the Art. 79. 
 above section were to sue a trustee to replace the trust fund, 
 he would have no defence, but should ask by counterclaim 
 to be indemnified out of the lady's interest. 
 
 3. The danger incurred by trustees who listen to the sup- Danger of 
 plications of married women who are restrained from antici- yiel'|J"g to 
 pation, was very vigorously pointed out by Lord Langdale oi/emtcorert. 
 in Tyler v. Tyler (o), in a passage which ought to be learnt 
 by heart by 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 compassionate feelings are 
 worked upon, he raises and advances the money ; the 
 object for which it was given entirely fails, the husband 
 becomes 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 be given in such cases, for if relief loere not 
 given, and if such rights were not strictly maintained, no such 
 thing as a trust could ever he preserved." 
 
 Illustrations of Sub-paeagkaph (b). 
 
 1. Even a release under seal (and a fortiori mere concur- YvlW know 
 rence or subsequent acquiescence) will not avail the trustee ledge of 
 unless the beneficiary had full knowledge. Thus a release esTenuT^ 
 to a trustee has been set aside after the lapse of more than 
 twenty years, and after the death of the trustee, on evidence 
 
 of the plaintiff (corroborated by the tenor of the release) 
 that it was executed in error, although no fraud was 
 imputed {p). 
 
 2. So where, on the footing of a supposed illegitimacy, the 
 title of a beneficiary to a trust legacy was disputed and 
 
 (o) 3 Beav. 563. 
 
 {p) Re Garnett, Gandy v. Macauley, 31 Ch. D. 1, and see also 
 Sawyer v. Sawyer, 28 ib. 595.
 
 374 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 79. denied by the trustee, and the former was thereby induced 
 to accept from the trustee a smaller sum than that to which 
 he was entitled under the will, and, by deed, to release the 
 trustee from the payment of the legacy, the court would not 
 permit the release to stand even after the lapse of more than 
 twenty-five years (q). 
 
 Ignorance of 3. But it seems that where a beneficiary has had the 
 wlm-e^iT^' advantage of a breach of trust, then notwithstanding his 
 has had the want of knowledge of the breach, he cannot sue the trustee 
 th^lf-*^"? °^ without replacing the amount which he himself has received 
 by reason of the breach. Thus, where part of the proceeds 
 of trust funds misappropriated by a father were made 
 subject to the marriage settlement of his son, a beneficiary 
 in remainder, who was ignorant of the source whence the pro- 
 perty proceeded, it was held that the son's representatives 
 were only entitled to have his share of the trust funds re- 
 placed after deducting the value of the proceeds settled (?•). 
 
 Art. 80. — Trustees generally entitled to Contri- 
 bution inter se, but may be entitled to be 
 Indemnified by Co-Trustee or Beneficiary 
 who instigated breach. 
 
 (1) As a general rule, where several trustees 
 have been guilty of a breach of trust not 
 amounting to actual fraud (s), those who are 
 obliged to pay, will be entitled to exact contri- 
 bution from the others (f), notwithstanding that 
 the former may be more blameworthy ; and such 
 contribution may be ordered in the action in 
 
 (7) Thompxon v. Ea-slivood, 2 App. Cas. 215, and see McDonnell v. 
 White, 1 1 H. L. Cas. 570. 
 
 (r) Crichton v. Crirhton, [1895] 2 Ch. 853. 
 
 («) AU.-(Je.n. V. Wilwn, .siij/ra ; soo Limjard v. Bromhy, 1 V. & B. 
 114 ; Tarhlon v. Iloruh;/, V. & C. V,. C. S.SG. 
 
 (/) Liii<i<ir<L V. liromh !/, .sii)>ra : /lirkx v. MicJdc/hirail, 33 Beav. 409 ;. 
 AU.(Jcn.' V. Jjavyavi, ih. G24. This claim to contribution is now con- 
 sidered a specialty debt (19 & 20 Vict. c. 97).
 
 WHEN TRUSTEES ENTITLED TO CONTRIBUTION. 375 
 
 which the liability was established (it). Pro- Art. 80. 
 vided nevertheless that : — 
 
 (a) where one of the trustees is or becomes 
 
 also a beneficiary, he will in general be 
 liable to indemnify his co-trustee to the 
 extent of his beneficial interest in the 
 trust estate (x) ; and 
 
 (b) where one of several trustees has been 
 
 guilty of fraud, or has been the con- 
 fidential solicitor of his co-trustees, he 
 may have to indemnify them and to bear 
 the luliole loss himself (y). 
 
 (2) "Where a trustee commits a breach of trust 
 at the instigation or request (z) or with the con- 
 sent 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 antici- 
 pation, make such order as to the court seems 
 just, for impounding all or any part of the 
 interest of the beneficiary in the trust estate 
 by way of indemnity to the trustee or person 
 claiming through him '' (a). 
 
 Illustrations of Paeagraph (1). 
 
 1. A., one of the trustees of a settlement, allowed his co- Contribution 
 trustee B. to have the trust fund to invest. B. handed it to fj^^^^gg" 
 
 (m) Priestman v. Tindall, [1897] 2 Ch. 825 ; Re Holt, 49 W. K. 650. 
 
 (x) Chillingworth v. Chambers, [1896] 1 Ch. 688. 
 
 (y) Bahin v. Hughes, 31 Ch. D. 390 ; B/yth v. Fladgate, [1891] 1 Ch., 
 at p. 365 ; Featherstone v. West, 6 Jr. Rep. Eq. 86 ; Loekhart v. Eeilly, 
 25 L. J. Ch. 697 ; Thompsons. Finch,22 Beav. 316 ; 8 D. M. & G. 560 ; 
 and see Butler v. Butler, 7 Ch. D. 116 ; Wynne v. Tempest, [1897] 1 Ch. 
 113. 
 
 (z) The request need not be in writing, although a mere consent must 
 be: per Kekewich, J., in Griffiths v. Hughes, [1892] 3 Ch. 105: 
 and per Lindley, L. J., in Be Somerset, Somerset v. Lord Poulett, [1894] 
 1 Ch. 231. 
 
 (a) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 45.
 
 376 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 80. 
 
 Lien of 
 trustee for 
 contribution, 
 on costs 
 awarded to 
 co-trustee. 
 
 ail "outside broker," who misappropriated parts of it: — 
 Held, that both trustees were in j^ciri delicto, 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 (&). 
 
 2. So where a large balance was found to be due jointly 
 from a trustee and the representatives of a deceased co- 
 trustee (c), but costs were given to both out of the trust 
 estate, it was held (the estate of the deceased co-trustee 
 being quite 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 representatives of his deceased co-trustee (cZ). 
 
 Trustee - 
 beneficiary 
 generally 
 bound to 
 indemnify 
 co-trustee to 
 extent of his 
 beneficial 
 interest. 
 
 Illustbatign op Pakageaph (1) (a). 
 
 This sub-paragraph is well illustrated by the case of 
 Chillingworth v. Chambers (e). There the plaintiff and 
 defendant, the trustees of a will, had committed breaches 
 of trust by investing on insufficient securities, bearing 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 
 investments in question had been made, became also bene- 
 ficially entitled to a share in the trust estate, as the 
 successor in title of his deceased wife. He claimed to be 
 entitled to contril)ution from the defendant trustee on the 
 ground that they were both in pari delicto. The court, 
 however, rejected his claim on the ground that the rule as 
 to the ri"ht of a trustee to contribution from his co-trustee 
 
 (h) liohiii-wv, V. Ifarkiv, [189(i] 2 Ch. 415. As to contribution by 
 directors of a company wiiere one of tiiem lias been made responsible 
 for a brcacli of trust in misapplying tiie company's assets, see Ramiikill v. 
 E(br,irdx, :M Cii. 1). 100. 
 
 (r) it need scarcely l)e jjointed out that the representatives of a 
 deceased trustee are not liable for a l)reach of trust connnitted after his 
 death, wlierc ho has left the trust fund in a proper state of investment 
 (Re I'dll:, 41 W. R. 28). Of course, tiicy may be liable where he ha 
 not so left it ((lihhhiH v. Taylor, ^'l 15eav. .'544). 
 
 {-•/) Fhlrhtr v. Urc.v.n, %\ Ijcav. 81)4. 
 
 (0 IIH'JGJ 1 Ch. 685. 
 
 f
 
 WHEN TRUSTEES ENTITLED TO CONTRIBUTION, 377 
 
 for loss occasioned to the estate by a breach of trust for Art. 80. 
 
 which both are equally to blame, does not apply where one 
 
 of them is also a cestui que trust, and has received as 
 
 between himself and his co-trustee an exclusive benefit by 
 
 the breach. In that case, the rule to be applied is that 
 
 under which the share or interest of a cestui que trust who 
 
 has assented to, and profited by, a breach of trust has to bear 
 
 the whole loss, and the trustee who is a cestui que trust 
 
 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.E., in 
 
 giving judgment, after quoting previous authorities, said : 
 
 ^' 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." 
 
 Illustbations of Paeagraph (1) (b). 
 
 1. In Baliin v. Hughes {f), Cotton, L.J., said: " On Cases in 
 
 going into the authorities there are very few cases in which Y r^ °?® 
 ^ ^ J trustee is 
 
 one trustee who has been guilty with a co-trustee of breach bound to 
 
 of trust, and held responsible, has successfully sought i"<-lemnify his 
 
 indemnity as against his co-trustee. Lockhart v. Beilly (g) co-trustees. 
 
 and Thompson v. Finch (h) are the only cases which appear 
 
 to be reported. Now, in Lockhart v. Eeilly, 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 ccstiiis que trust (i). ... Of 
 
 (/) 31 Ch. D. 390, 394 ; and see also Bobinson v. Harkln, [lS96]2Ch. 
 415. 
 
 (g) 25 L. J. Ch. 697. (A) 22 Beav. 316 ; 8 D. M. & G. 560. 
 
 (i) See also to same effect Re Turner, Barker v. Ivimey, [1897] 1 Ch. 
 536.
 
 378 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 80. 
 
 Solicitor- 
 trustee not 
 necessarily 
 liable to 
 indemnify 
 co-trustee. 
 
 Even wliere 
 trustee 
 incidentally 
 benefits by 
 breach, not 
 always liable 
 to indemnify 
 co-trustee. 
 
 course where one trustee has got the money into his own 
 hands, and made use of it, he will be liable to his co-trustee 
 to give him an indemnity {k). Now I 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 cestui que trust ; but so 
 far as cases have gone at present, relief has only been 
 granted against a trustee ^v^lo has himself got the benefit 
 of the breach of trust, or hetiveen luhom and his co-trustees 
 there has existed a relation, lohich luill justify the court in 
 treating him as solely liable for the breach of trust." 
 
 2. It must not, however, be assumed from the above 
 judgment that a solicitor-trustee who advises the commis- 
 sion of a breach of trust is necessarily bound to indemnify 
 his co-trustees ; for where the co-trustee has himself been 
 an active participator 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 indem- 
 nified. 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 (Z). 
 
 3. Although, as stated by Lord Justice Cotton in 
 Bahin v. Hughes (m), where one trustee has got the trust 
 money into his own hands and made use of it, he will in 
 general be liable to indemnify his co-trustee, yet he will not 
 have to do so where his breach of trust is only remotely 
 connected with the loss, 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 boxTOwed 
 a debt due from him to one of the trustees is not, of itself, 
 suflicient to render the trustee so accepting repayment 
 liable, the borrower being under no restriction as to its 
 application (n). 
 
 (k) See Featherato7ie v. West, 6 Ir. Rep. l'i(i. 86. 
 (/) ffrad V. Ooiiff/., [1898] 2 Ch. 250. 
 (m) Supra, llliisl. 1. 
 
 (//) Clulliniiirurtk V. ahamhe.rx, \\mQ] 1 Cli. (iS5 ; Butler \ 
 7 Cli. I). 1 l(i ; .uid .sc(! ulso Whitney v. Smith, 4 Ch. App. 513. 
 
 Butler,
 
 WHEN TRUSTEES ENTITLED TO CONTRIBUTION. 379 
 
 Art. 80. 
 Illustrations of Pakagraph (2). 
 
 1. Section 45 of the Trustee Act, 1893 (56 & 57 Vict. Breaches of 
 c. 53) (which is set out verbatim in paragraph (2) of the *^,"ted°at "the 
 present Article), was apparently intended to give legislative instigation, 
 sanction to the former rule of the court with the following °^\ request, or 
 slight modifications, viz., to confer on the court power (1) to of benetici- 
 impound the interest of a married woman although re- aries. 
 strained from anticipation, and (2) to extend the relief to 
 
 cases where the beneficiary has merely passively " consented 
 in writing " to the breach as distinguished from cases where 
 he actively requested or instigated it (o), 
 
 2. In order to make a beneficiary liable under s. 45 of the To render 
 
 Act of 1893, he must not only have instigated or requested beneficiary 
 
 -, . . . , , , 1 11 liable to 
 
 or consented in writing to the breach, but must also have indemnify 
 
 known the facts which would render what was done a trustee, he 
 breach of trust. Thus, where a tenant for life undeniably known that 
 requested trustees to invest the trust fund on a certain act was a 
 security, but it did not appear that he intended to be a ^j\^g^ ^ ° 
 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 make good the 
 breach {p). But if the tenant for life had been proved 
 to have knowingly requested the breach of trust, the 
 decision would (even before the statute) have been other- 
 wise (q). 
 
 3. The right of a trustee to impound the interest of bene- No right to 
 
 ficiaries who have instigated a breach is, however, only I'^po'^nd 
 
 *^ ' •'in order to 
 
 applicable for the purpose of indemnifying him against the make good 
 
 claims of other beneficiaries. It does not extend to indem- ;the trustee'sr 
 
 nify him against other losses. Thus, where a trustee interest. 
 
 subsequently became entitled to share in the trust fund 
 
 as one of the next of kin of a beneficiary, it was held that 
 
 (o) With regard to the procedure where the plaintiff is an innocent 
 beneficiary and the trustee desires to claim indemnity against another 
 beneficiary, see Be Holt, [1897] 2 Ch. 525. 
 
 (p) Be Somerset, Somerset v. LordPouktt, [1894] 1 Ch. 231 ; Mara v. 
 Browne, [1895] 2 Ch. 69. 
 
 iq) Baby v. Bidehalgh, 7 D. M. & G. 108.
 
 380 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 ried woman. 
 
 Art. 80. 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 beneficiary had given 
 him an express covenant of indemnity (r). It is submitted 
 that the same principle would apply d fortiorari to the 
 statutory right, which is not so strong in favour of the 
 trustee as an express covenant. 
 
 Guilty know- i. In the case of a married woman, the court will require 
 
 ledge must be gtric^jej. proof of her guilty knowledge than in the case of a 
 
 conclusively ^ o j o ^ 
 
 proved in the man. Even where she was not restrained from anticipation 
 
 case of a mar- g^^^ ^j^g charge by way of indemnity was express, and not 
 merely statutory, it was held that her position was very 
 difi"erent to that of a male beneficiary, Fby, L.J., saying (s) : 
 " 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 cose of a 
 fevie covert, we do not think the presumption exists in favour 
 of the trustee, whose primary duty it was to 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 v. Clmrch (t), Clive v. Careio (u), 
 and Pcmhcrton v. Gill {x). 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." 
 
 Wheie mar- 5. Indeed, where the married woman is restrained from 
 
 ned woman alienation it would seem that the statutory power to the 
 
 rcKtranied _ _ . . 
 
 from aliciia- court to impound her interest (which is merely dis- 
 
 *''""• cretionary), will only be exercised in the plainest cases, 
 
 (r) I'h-anx v. Bcnyon, .37 Ch. D. 329. 
 (h) Snin/c.r v. Sawyer, 28 Ch. 1). 595. 
 (/) .3 l5oav. 485. 
 (u) 1 J. & H. 199. 
 
 (x) 1 Dr. & Sm. 266. 
 
 {
 
 WHEN TRUSTEES ENTITLED TO CONTRIBUTION. 381 
 
 as, for instance, where she has been guilty of fraud ; and Art. 80. 
 never, apparently, where the trustee knew that he was 
 committing a breach of trust and yielded weakly to her 
 solicitations (y). 
 
 6. In any case where trustees, at the request of a bene- Whore 
 ficiary, advance the trust fund to her, with notice that she trustees have 
 
 1 I 1 T • 1 wrongiuUy 
 
 nas settled ic by another settlement, they cannot niipound parted with 
 her income under such other settlement, because that t™^* ^""^ ^o 
 income is not the interest of a beneficiary in the trust subsidiary 
 estate of toJiich they are the trustees [z). settlement. 
 
 (y) Ricketts v. Richetts, 64 L. T. 263 ; Bolton v. Curre, [1895] 1 Ch. 
 544; Re Holt, [1897] 2 Ch. 525. But cf. Griffiths v. Hughes, [1892] 
 3 Ch. 105, where Kekewich, J., exercised 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. 
 
 (z) Ricketts V. Ricketts, supra.
 
 ( 382 ) 
 
 CHAPTEE III. 
 
 LIABILITY OF THIRD PARTIES AND 
 BENEFICIARIES. 
 
 ART. PAGE 
 
 81. — Liability of Third Parties or Beneficiaries who are Parties 
 
 to a Breach of Trust ,382 
 
 82. — Folloioing Trust Propeiiy into the Hands of Tliird Parties - 390 
 
 Aet. 81. — Liahility of Tliird Parties or Bene- 
 ficiaries luJio are Parties to a Breach of Trust. 
 
 (1) All persons \Yho kno^Yingly (a) meddle with 
 trust funds, or mix themselves up with a breach 
 of trust, render themselves equally liable with 
 the trustees, both in relation to primary liability, 
 and to the limitation of the right of pleading the 
 statutes of limitation (b). 
 
 (2) Where such a person, or a beneficiary who 
 is indebted to the trust estate (c), has a partial 
 equitable interest in the trust property, whether 
 original or derivative (r/), it may be impounded 
 to make good his liability to the trust estate, 
 not only as against him personally (e), but as 
 
 (a) See Jie Kingston, etc. Co. (No. 2), [1896] 1 Ch. 279; n^illiajm v. 
 WiUiams, 17 Ch. D. 437. 
 
 (I,) /it' Bnnui/, Baniry v. Barney, [1892] 2 Ch. 265; BIyth v. Flad- 
 (jate, [1891] 1 Cli. 337; IJixon y.' JJi.voii, 9 Cli. D. 587; Morgan v. 
 Elfonl, 4 Cii. ]). 352; Lte v. Sankey, 15 Eq. 204; Rolfe v. Gregory, 
 11 Jur. (N.s.)98. 
 
 (r) ltd Ta</lor, Taylor v. Wade, [1894] 1 Ch. 671. 
 
 (d).Jacnlis\. Bi/laiic", 17 K<1. 351 ; Docring v. Doering, 42 Ch. D 
 203 ; (Uulliiigirorth v. Chamhcrx, [189{)] 1 Cli. 685. 
 
 (p) Woodijad V. Ureslvi/, 8 Sim. 180; Fidlcr v. Knight, 6 Beav. 205; 
 M'G'arhfn'v. Dtw, 15 Beav. 84; Vanghton v. Not>li, 30 Beav. 34; 
 JarnliH v. Rylance, 17 I'-q. 311 ; R<- Taylor, Taylor v. Wade, supra ; Be 
 Wciton, Davies v. Tagart, [1900] 2 Cii. 164.
 
 LIABILITY OF THIRD PARTIES, ETC. 383 
 
 against all persons claiming under him, including Art. 81. 
 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 {g). 
 
 (3) Sub-paragraph (2) is semhle now appli- 
 cable (in the discretion of the court) where the 
 guilty party is a married woman restrained from 
 anticipation, if she has instigated or requested 
 the breach, or consented to it in writing (h), but 
 not otherwise (i). 
 
 Illustrations of Paragraph (1). 
 
 1. A trustee, in breach of trust, lends the trust fund to Trust fund 
 the tenant for hfe. Here both the trustee and the tenant JojVf^ ^"""^"^ 
 for Hfe, who has got the trust funds into his own hands by 
 
 a breach of trust to which he was himself a party (/b), will 
 be jointly and severally liable to the beneficiaries. 
 
 2. A testator bequeathed a sum of £600 (which he described Third party 
 as being in the hands of one Gregory, to whom he had lent '^^^'^ notice 
 the same on the security of his note of hand), to his son-in- jg liable, 
 law Eolfe, 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 (l). 
 
 if) Jacuhs V. Rylance, .supra; Doering v. Doering, supra ; Bolton v. 
 Curre, [1895] 1 Ch. 544 ; Edgar v. Plomley, [1900] A. C. 431. 
 
 (g) Egbert v. Butter, 21 Beav. 560 : Fox v. Buckley, 3 Ch. D. 508 ; 
 but see Woodyatt v. Gresley, supra. 
 
 (h) Semble, under s. 45 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), . , 
 see as to this p. 389, infra. 
 
 {i) Stanley v. JStanley, 7 Ch. D. 589, and Hale v. Sheldrake, 60 L. T. 
 291. 
 
 (k) Cowper v. Stoneham, 68 L. T. 18. 
 
 (/) Rolfe V. Gregory, supra ; Dixon v. Dixon, 9 Ch. D. 587.
 
 384 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 81. 
 
 IJankers with 
 notice of 
 trust fund. 
 
 I'rust fund 
 paid to 
 '.vTong person 
 on faith 
 of forged 
 eertiiicate. 
 
 3. So, where a fund was standing to the account of twa 
 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, it was 
 held that the trustees might sue the bankers to have the 
 trust fund replaced, and that the Statute of Limitations 
 was not applicable {m). 
 
 4. In Eaves v. Hickson {n) trustees had paid over trust 
 funds bequeathed to the children of one William Knibb, 
 upon the faith of a forged marriage certificate, which 
 William Knibb produced to tJiem, from which it appeared 
 that certain illegitimate children of his were legitimate. 
 It was held that William Knibb, who had produced the 
 certificate, must be made responsible for the money as well 
 as the trustees. 
 
 Trustee 
 de sou tort. 
 
 5. In general, beneficiaries may proceed against an agent 
 of their trustee where he has not confined himself to the 
 duties of an agent (o), but, by accepting a delegation of the 
 trust (_2;), or by fraudulently mixing himself up with a 
 breach of trust, he has himself become a trustee by con- 
 struction of equity (5). It is, however, essential to the 
 character of a trustee de son tort, that he should have trust 
 property either actually vested in him, or so far under his 
 control, that he is in a position to require that it should 
 be vested in him (r). For instance, solicitors who prepare 
 deeds relating to contemplated technical breaches of trust 
 but advise against their execution, are not liable if they 
 have no reason to suspect dishonesty (s). But where the 
 capital of a trust fund having got into the hands of the 
 trustee's solicitor, was, through his intervention, spent by 
 
 {m) /lri.rlije7nan v. Gi//, 24 IJcav. .S02. As to rights of hankers where 
 tiiist funds arc paid in to the trustee's ])rivatc account, see infra, 
 p. 39.3. 
 
 (n) .-{OlJcav. 13fi. 
 
 (o) Sec //r///Wr» V. M7//w?».s', [lsn4]3CIi. 185. 
 
 {]/) C'oir//tr V. Slotuhdm, 08 L. 'J\ 18. 
 
 (7) lie. Jiiiriicy, liar my v. Harney, \ 1802| 2 Ch. 20,'). 
 
 (r) Ih., and sec //-■■ liinvdcll, IUuikIcII v. IMunddl, 40 Ch. D. 370. 
 
 (s) /SanicH V. Ai/>/i/, U (Jli. App. 244.
 
 LIABILITY OF THIRD PARTIES, ETC. 385 
 
 the trustee, the soHcitor was held Hable (t) ; for where Art. 81. 
 
 trust funds come into the custody and under the control of 
 
 a solicitor, or indeed of anyone else, with notice of the 
 
 trusts, he can only discharge himself of liability by showing 
 
 that the property was duly applied in accordance with the 
 
 trusts (u). It is not sufficient, for example, to show that 
 
 the solicitor invested it by the direction of the trustees in 
 
 an unauthorised (as distinguished from an insufficient [x) ) 
 
 investment {u), nor that he paid it to one of several trustees 
 
 who misappropriated it {y) ; nor that by the direction of 
 
 the trustee he paid it to a person to whom he knew it was 
 
 not payable {z), for all of these acts are clear infringements 
 
 of the trust, as a solicitor ought to be well aware. Of 
 
 course, however, a solicitor would be justified in paying, 
 
 and indeed would be compellable to pay, it to the whole of 
 
 the trustees jointly. 
 
 6. If a solicitor, knowing that money which is in court Solicitor 
 belongs to one person, commences proceedings in the name knowingly 
 of another, and obtains payment to such other, he is crettinglund 
 personally chargeable with the amount. Nay, even if he has ^^ court paid 
 not actual knowledge of the falseness of the claim, but has person. ° 
 knowledge of circumstances which, if duly considered, 
 would lead to a knowledge of the truth, he will be made 
 personally responsible for the loss which his want of con- 
 sideration may cause {a). 
 
 and 
 
 o 
 
 money. 
 
 7. Again, where a solicitor receives trust moneys on pay- 8olicitoi 
 ment off of a mortgage, and retains them, he is, quci the reiving a 
 statutes of limitation, in the position of an express trustee trust mm 
 
 {(.) Monjaii V. Stephens, 3 Giff. ■226. 
 
 [u) BJyth V. Fladgate, [1891] 1 Ch. 837; Soar v. Ashirell, [1893] 
 2 Q. B. 391. 
 
 (;t) Brimden v. Williams, [1894] 3 Ch. 185, and Mara v. Brown, 
 [1896] 1 Ch. 199, and see and consider Stokes v. Prance, [1898] 1 Ch. 
 212, a case of contributory mortgage, in which it was held that the 
 .solicitors who contributed to the mortgage were xiot postponed to the 
 trustees. 
 
 (y) Lee v, Sanhey, 15 Eq. 204. 
 
 (z) Midcjley v. Midgley, [1893] 3 Ch. 282, where the debt which was 
 paid had been declared by the court to be barred by the Statute of 
 Limitations, notwithstanding which the trustee by the hand of the 
 solicitor paid it. 
 
 (a) Ezort v. Lister, 5 Beav. 585 ; Todd v. Studholme, 3 K. & J. 324 ; 
 and Re Dangar, 41 Ch. D. 178, where the cases are collected.
 
 386 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 81. who, as has been stated above, can never plead the statutes 
 in respect of money which he has received and converted 
 to his own use {b). 
 
 Illustrations of Paeagkaph (2). 
 
 Where party 1 . As stated in the second paragraph of the present 
 
 ioined^in article, the equitable interest of a partial beneficiary who 
 
 breach is has made himself liable by joining in a breach of trust, may 
 
 a, partial j^g stopped at the instance of his co-beneficiaries, until the 
 benenciarv. i , / i mi • 
 
 whole loss to the estate has been compensated. This right 
 
 of the beneficiaries must not, however, be confused with the 
 
 limited right of the trustee (treated of in Article 80, supra) 
 
 to impound the interest of a beneficiary who has requested, 
 
 instigated, or consented in writing to a breach of trust, by 
 
 way of indemnifying the trustee himself. The two rights are 
 
 essentially different, and it is apprehended that beneficiaries 
 
 might have the right referred to in paragraph 2 of the 
 
 present article, in cases where the trustee (who is after all 
 
 particeps criminis) might be refused the right of impounding 
 
 the interest of the instigating beneficiary. It must also be 
 
 understood that the rule laid down in paragraph 2 of the 
 
 present article, applies d fortiori to the case of a beneficiary 
 
 who is also a trustee ; for the liability of the beneficiary is 
 
 really founded upon his having made himself a trustee de 
 
 son tort. In both cases the trustee, or trustee de son tort, 
 
 is personally liable, and in both cases in his capacity of 
 
 beneficiary he must make good his indebtedness to the 
 
 trust estate before he can claim to share in it (c). 
 
 Retainer of 2. A trustee, in breach of trust, lent the trust fund to 
 life iiK^onio A. B.,the tenant for life. The trustee afterwards concurred 
 good lueacli ^" ^ creditor's deed, by which A. B.'s life interest was to be 
 instigated applied in payment of his debts, and the trustee received 
 *!^ i?f.'!"'^ thereunder a debt due to him from A. B. Before the other 
 creditors had been paid, the trustee retained the life income 
 to make good the breach of trftst. It was held that the 
 
 {!>) Moor< V. Knhiht, [1891] 1 Ch. 'Al ; t^oarv. vlv/tK-e//, [1893] 2Q. B. 
 ;W(>; lir Dixon, Ilti/nc.iy. Dixon, [1900) '2 Cli. .')61. 
 
 {r) .See AV Ahrmau, Ah.rman v. Ah-nnnn, [1891] 3 CIi. 212, and 
 CHHCS there cited. 
 
 for life.
 
 LIABILITY OF THIRD PARTIES, ETC. 387 
 
 -court would not restrain the trustee from making good the Art. 81. 
 breach of trust out of the life income ; for although the 
 trustee, being a creditor and party to the deed, had, qiui 
 himself, no right to retain the life interest, yet, as repre- 
 senting the cestuis que trusts, he was justified in doing 
 so {d). 
 
 3. The rule applies not only to shares taken directly under I^ule applies 
 the settlement creating the trust, but also to shares P^i'- as wdKas 'to^ 
 chased from or otherwise derived through or under immediate original 
 beneficiaries. Thus, where a Mrs. D., who was trustee and ^"*''^'^- 
 life tenant under a will, took assignments from two of the 
 beneficiaries entitled in remainder, and committed divers 
 breaches of trust which only came to light on her death, it 
 was held that the two shares which she had purchased were 
 liable to make good the loss to the estate. Moreover, this 
 right of the beneficiaries was held to take priority over 
 persons to whom Mrs. D. had mortgaged the shares in 
 question (e). The fact that the mortgagees were bond fida 
 mortgagees for value without notice was immaterial, because 
 the equitable interest in question was a chose in action, and 
 purchasers of clioses in action take subject to all equities. 
 Indeed, so far has this been carried, that such purchasers 
 have been held to take subject to breaches of trust committed 
 subsequent to the purchase (/). 
 
 5. The rule now under consideration is not confined to Retainer of 
 cases of breach of trust, but is equally applicable where a ipteresrto ** 
 beneficiary is indebted to the trust estate. By a separation make good 
 deed, after reciting that the husband and wife had agreed to ^ ''^''"^.*'"^ 
 
 ' " . . " ironi him to 
 
 live apart, the husband assigned certain leaseholds to trus- tlie trust 
 tees in trust to pay the rents to the wife for life, and then estate, 
 to sell and hold the proceeds (in the events which happened) 
 in trust for himself, and he covenanted to make up the 
 wife's income to £300 a year. The husband paid nothing 
 
 {d) Fuller v. Knitjht, 6 Beav. 205 ; and see also Carson v. Sloaiif, 
 13 L. R. Ir. 139. 
 
 (e) Doeriag v. Doerimj, 42 Ch. D. 203, and cases there cited ; and see 
 also Be Akerman, Akerman v. Akermaii, [1891] 3 Ch. 212. 
 
 (/) Per Hall, V.-C, Jlooper v. Smart, 1 Ch. D. 90, 98 ; and see 
 Also Morris v. Lirie, 1 Y. & C. C. C. 380 ; Irhi/ v. Irhi/, 25 Beav. 632 ; 
 Barnett v. Sheffield, 1 D. M. & C. 371 ; and Cole v. Muddle, 10 Hare, 
 186.
 
 388 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 81. under the covenant, and in 1868 he was adjudicated a bank- 
 rupt. The trustees proved for arrears due down to the date 
 of the bankruptcy, but there were further arrears due to 
 them since that date. On the death of the wife, the 
 husband's assignee in bankruptcy claimed the leaseholds,, 
 but it was held that the trustees were entitled to retain them 
 until the arrears were satisfied ; and sevible, that the right 
 of trustees to retain trust property as against a beneficiary 
 who owes money to them as trustees under the instrument 
 creating the trust, exists in favour of trustees of a voluntary 
 settlement which has been so completed as to be enforce- 
 able by the court (g). The rule applies even where the debt- 
 is statute barred [h). 
 
 How far 5. Where a trustee has made an over-payment to a 
 
 beneHciary beneficiary in error, he can recoup himself out of any other 
 who has beeu '' n ^ t n ■ ■ 
 
 innocently mterest (if any) of that beneficiary in the trust estate (?) ; 
 
 overpaid is b^t the court w'ill not, as a rule, order the over-paid bene- 
 refund. ticiary personally to refund to the trustee who has been 
 
 disallowed the item in his accounts (k). However, it would 
 seem that a co-beneficiary could compel repayment of the 
 excess (/) ; l)ut the onus would lie upon him of proving that 
 what the other beneficiary had received was an over-pay- 
 ment, having regard to the value of the estate at the date of 
 the payment, and did not arise merely by reason of subsequent 
 depreciation [m). This, of course, presupposes that pay- 
 ment at all, at the date in question, was proper ; for 
 otherwise, if the date for payment had not arisen, the^ 
 payment would itself have been a breach of trust to which 
 the payee would have been privy. 
 
 (g) lie Wcsfoii, Daviex v. Taijart, [1900] 2 Ch. 164; lie Akermaiiy 
 Akermaa v. Akermaii, [1891] ',i Cli. 213 ; an(l see and consider analagous 
 right of exccntors, Jic Ttiylor, Tui/lor v. Wade, [1894] 1 Ch. 671. 
 
 (h) Re Akermaii, AkcniKiii v. Ah rmoii, supra. 
 
 (i) Lirt-.fci/ V. Lin-xi/, .S Riiss. 287 ; J)il>hs v. r/oroi, 11 Boav. 483. 
 
 (k) JJoirii'fs V. Hiillwk, 2.') Hcav. .14 ; Jiati v. JIoopci; '•> 1). M. & ii. 
 3.38 ; and consider Allranl v. Walhr, [1896] 2 Ch., at j). 384, as to the- 
 converse case, wlicre funds have l)een erroneously paid to the trustees. 
 
 (/) Jlarrix v. Harris (No. 2), 2U lieav. 1 1(». 
 
 \m) lie Wiiisloir, Fnri v. M'/z/w/of, 4r>Cli. 1). 247 ; Fonrlrky. Clarke^ 
 4 1). F. & .1. 240; I'elermn v. Petersou, 3 Eq. Ill ; and llilliard v- 
 Ftilford, 4 Cli. I). 387.
 
 LIABILITY OP THIRD PARTIES, ETC. 389 
 
 6. But where a testator devised certain real estate for Art. 81. 
 
 life to one of his executors and trustees, and the devisee 
 
 afterwards committed a breach of trust, and filed his 1 f*^ 
 
 not apply 
 
 petition for liquidation, it was held that, as against the to legal 
 trustee in liquidation, the other cestuis que trusts had no )>e)ietif;ial 
 
 interests. 
 
 lien on the interest of the trustee ; the Lord Justice James 
 ■saying : " The estate of a legal devisee is, under no circum- 
 stances, under the control of the court " (n). Whether, 
 however, the same rule applies to legal estates or interests 
 under a settlement to which the beneficiary in default is a 
 party seems questionable. In Woody att v. Gresley (o), it 
 was held that it did not. On the other hand, in the more 
 recent case of Be Brown, Dixc^i v. Brown [p), Kay, J., 
 said : " It has always been a rule of the Court of Chancery 
 that if a trustee misappropriates trust money, and has an 
 equitable interest under the trust deed, the court will not 
 allow him to receive any part of the trust fund in which he 
 is equitably interested under the trust, until he has made 
 good his default as trustee. That is a doctrine which is 
 not in the least in question, and is very thoroughly estab- 
 lished. But if the trustee has, under the will or other 
 instrument which created the trust, a legal interest in land 
 which is not bound by the trust at all, then the Court of 
 Equity has no power to lay hold of that legal interest or to 
 assert anything in the nature of a lien or charge upon it in 
 order to recoup the breach of trust." 
 
 Illustrations op Paragraph (3). 
 
 1. It seems to be clear that, apart from s. 45 of the Whether 
 Trustee Act, 1893 (56 & 57 Vict. c. 53), beneficiaries have interest of 
 no right to demand that the interest of a beneficiary who woman 
 has been party to a breach of trust shall be impounded to restrained 
 make good the loss to the trust estate where she is a married patk)n"a\Ti)e 
 woman restrained from anticipation (q). It is however sub- impoiinded. 
 mitted that s. 45 of the Trustee Act, 1893, enables the court, 
 
 (h) Fox v. Biichhy, .3 Ch. D. 511. (o) 8 Sim. 180. 
 
 {p) 32 Ch. D. 597 ; and see also Halhtt v. HaJhtt, 13 Ch. D. 232, 
 and Re Akerman, Akermnn v. Akerman, [1891] 3 Ch. 212. 
 
 (q) Stanley v. Stanley, 7 Ch. D. 589 ; Hale v. Sheldrake, 60 L.T. 291.
 
 390 THE CONSEQUENCES OF A BEEACH OF TRUST. 
 
 Art. 81. in the exercise of its discretiou, to entertain such a clemanJ 
 where the breach has been committed at the instigation, or 
 at the request or with the written consent of such a benefi- 
 ciary. No doubt the words of the statute confer this power 
 on the court for the indemnity of the trustee, and not for 
 the indemnity of the other beneficiaries, unless the con- 
 ckiding words, "or person claiming through him," can be 
 said to embrace the beneficiaries, which seems doubtful. 
 But on the analogy of cases in which creditors of a trust 
 business have been allowed to stand in the place of a trustee 
 who has a right to be indemnified out of the trust estate (r), 
 it is submitted that the beneficiaries ought to be allowed 
 by way of subrogation to take the benefit of the indemnity 
 which is given by the statute to a trustee in cases where 
 that trustee is unable to make good the loss himself. If 
 this be not so, it is, indeed, a strange anomaly that the 
 authors of the Trustee Acts of 1888 and 1893, should have 
 inserted a section dealing with the right of the trustee to- 
 impound the interest of a beneficiary particeps criminis by 
 way of indemnit}^ to himself, but should have omitted to- 
 
 ' make any similar statutory provision as to the rights of 
 
 innocent co-beneficiaries to set off the loss against the share 
 of the beneficiary in fault. 
 
 Art. SI.—FoUoiviiK/ Tnid Properf/j info the 
 Hands of Third Parties. 
 
 If trust property comes into tlie hands of any 
 person inconsistently with tiie trust, he will be a 
 mere trustee for the persons entitled under the 
 trust ; unless he or some person through whom 
 he claims (.v), has bond fide acquired the property 
 for V!ilual)le consideration and without receiving 
 
 (>•) See vf/yy/v/, |). ',i-2'2, lllust. ){. 
 
 {m) JIarriwii v. For/h. I'r. Cli. :.I : Murtiiis v. ./<////;, Anil). :\\:\ 
 M'Qjieen v. Farqiihrn-, 1 1 N'cs. t7S.
 
 FOLLOWING TRUST PROPERTY TO THIRD PARTIES. 891 
 
 notice before the transaction was completed (t), Art. 82. 
 that the acquisition was a breach of trust, and — 
 
 (a) has got the legal (as distinguished from a 
 
 mere equitable) title (u) ; or 
 
 (b) the property being a chose in action (rr), 
 
 consists of a negotiable instrument (?/), 
 or an instrument which was intended 
 by the parties to it to be transferable 
 free from all equities attaching to it (z). 
 
 Illustrations. 
 
 1. The rule enunciated in this article is derived from Relative 
 two well-known maxims, viz. : (1) where the equities are [g^!j[!^°j 
 equal the law prevails ; and (2) as between mere equitable equitable 
 claimants qui prior in tempore, potior in jure est. In fact, claimants. 
 where one of two 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 equitable 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 (a). 
 There a trustee, who was a solicitor, fraudulently misappro- 
 priated the trust fund, and with it bought an estate which 
 w^as conveyed to his brother. The brother then mortgaged 
 
 (t) Bassett v. Xosworthij, W. & T. L. C. 1 ; Boursot v. Savage, 2 Eq. 
 134; Mach-eth v. Syynmons, 15 Ves. 349; PUcher v. Bawliii.s, 7 Ch. 
 App. 259 ; London, etc. Co. v. Duggan, [1893] A. C. 506 ; and as to the 
 time at which the notice is effectual, Lady Bodmin v. Vandtrhendy, 
 1 Ver. 179; Jones v. Thomas, 3 P. Wms. 243; Attorney-General v. 
 Gower, 2 Eq. Ca. Abr. 685, pi. 11 ; More v. Mahoic, 1 Ch. Ca. 34. 
 
 (it) See per Lord Westbury, Phillips v. Phillips, 4 D. F. & J. 208. 
 
 (a;) Turton v. Benson, 1 P. Wms. 496 ; Ord v. White, 3 Beav. 357 ; 
 Mangles v. Dixon, 3 H. L. Cas. 702 ; Doerinq v. Doering, 42 Ch. D. 
 203. 
 
 (y) Anon., Com. Rep. 43. 
 
 \z) Be Blakeley Co., 3 Ch. App. 154; Be General Estates Co., ih. 
 758 ; Crouch v. Credit Fonder, 8 Q. B, 374 ; and see Judicature Act, 
 1873 (36 & 37 Vict. c. 66), s. 25. 
 
 (a) 15 Ch. D. 639 ; and see also Powell v. London and Provincial 
 Bank, [1893] 2 Ch. 555.
 
 392 THE CONSEQUENCES OF A BEEACH OF TRUST. 
 
 Art. 82. the property by legal, and afterwards by equitable mort- 
 gages, 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, however, 
 held that as the solicitor was a party to the fraud, notice of 
 the equity of the beneficiaries could not be constructively 
 imputed to the clients, the mortgagees, as the conduct of 
 the agent raised a conclusive presumption that he would 
 not communicate to the client the fact in controversy, and 
 that consequently their equities and the equity of the bene- 
 ficiaries were equal ; whence it followed, on the maxim 
 "w^here the equities are equal the law prevails," that the 
 legal mortgagee, having the legal estate, took priority over 
 the beneficiai'ies, but that the latter took priority over the 
 equitable mortgagees because their equity was first in point 
 of date (&). 
 
 Notice of 2. To deprive a person who has acquired for valuable 
 
 (loubtful consideration 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 construc- 
 tion of a trust is ambiguous or equivocal (c). 
 
 Purchasing 3. So, it has been held that where two sets of trustees 
 
 <?fTru8teer^^'^ ^^^^ joined in advancing money on a contributory mortgage 
 
 who are (on the face of which their fiduciary characters appeared), 
 
 mortgagees ,^y^^ thcv sell under their power of sale, the purchaser is not 
 iinacr a •' ^ v . . i • i 
 
 contrilmUjiy bound to see that each set oi trustees get tlieir due pro- 
 
 jiiortgage. portion of the purchase money, on the ground, apparently, 
 
 that th<! ])urchase mon(!y is not the del)t, l)ut only a security 
 
 for it {d). 
 
 (h) Sec alHo rilrlii, V. /,'mr/iiis, 7 (,'li. App. 13,")!). 
 
 (r) Jfurdi/ V. /{lan.s, .') Ves. 42(i ; ('on/wdi v. Mnrkrill, Amh. .'jIG ; 
 Warii-icic V.' Warmirk, .S Atk. 2!)1 ; l)ut nee and consiiler i^'-r Lord St. 
 Leonards, ThompMon v. Shn])n<>ii, \ Dr. &, War. 49 L 
 
 {d) III. Parker and Ihc.di, oU \j. ,]. Cli. ."{.IS, add qumre.
 
 FOLLOWING TRUST PROPERTY TO THIRD PARTIES. 393 
 
 i. So, as has been already stated (e), where a trustee has Art. 82. 
 •overdrawn his banking account, his bankers have a first and 
 paramount lien on all monies paid in by him, unless they pa"Hn\°"*^^ 
 have notice, not only that they are trust monies (/), but trustee's 
 also that the payment to them constitutes a breach of JJ[4rfrawn 
 trust (g). account. 
 
 5. On similar grounds it has been held that in order that Costs jiaid 
 
 a solicitor of a trustee may be debarred from accepting tniste^to '"° 
 payments out of the estate in respect of costs properly his solicitor, 
 incurred, notice must be 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 (Ji). 
 
 6. The subject of notice is now governed by s. 3 of the What consti- 
 Conveyancing Act, 1882 (45 & 46 Vict. c. 39), which jg ^^^^^ "°^'°«- 
 retrospective, and therefore 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 
 
 oither 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 
 a,s "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 know- 
 ledge of his counsel, solicitor, or agent as such, or would 
 have come to the knowledge of his solicitor or agent if such 
 inquiries and inspections had been made as ought reasonably 
 to have been made by them." 
 
 7. With regard to actual notice, knowledge is absolutely Actual 
 necessary. Mere gossip or report is not sufficient. Whether 'I'^tice. 
 the notice must be given by a party interested or his agent 
 
 (e) Supra, p. ,355. 
 
 (/) Thomson v. Clydesrlale Bank; [189.3] A. C. 282. 
 
 (g) Coleman v. Bucks, etc. Bank, [1897] 2 Ch. 243 ; Bank of Australasia v. 
 Murray- AynsUy, [1898] A. C. 698 ; Re Spencer, 51 L. J. Ch. 271, but 
 ■rf. Mutton V. Peate, [1900] 2 Ch. 79. 
 
 {h) Be Blumlell, Blunclell v. Bhmdell, 40 Ch. D. .370.
 
 394 THE CONSEQUENCES OF A BEEACH OF TRUST. 
 
 Art. 82. 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 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 transaction, such know- 
 ledge 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 (/). 
 
 Constructive 8. 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 tlie 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 fi-oin tbe burden which it would 
 impose on the memory of a solicitor u())i constat that the 
 
 (/') /Jill/'/ V. /!(iii/s, .■{('li. A])\>. (IS; and sec also /.oiiiloii, <lr. Co. \. 
 Dii'i'jiiii, {\H<Xi) App. ('as. ;■■)()(), and /tiilimni \. //i/inrr, GU L. T. 385.
 
 FOLLOWING TRUST PROPERTY TO THIRD PARTIES. 395 
 
 client may not have ceased to regard him as his soHcitor (A;) . Art. 82. 
 It has also been held that constructive notice of an equity 
 through counsel, solicitor, or agent, is not imputed to the 
 client, where the counsel, solicitor, or agent is party to a 
 fraud which w^ould be exposed if he had communicated the 
 notice to his client {I). This case {Cave v. Cave) must, 
 however, be carefully distinguished from the earlier cases 
 of Boursot V. Savage {in), and Bradley v. Biches {n), which 
 seem at first sight in direct conflict with it. The point in 
 Boursot V. Savage was, that where a client has notice of the 
 existence of a trust, and intends to get the equitable interests 
 of beneficiaries from them, the fact that he gets the legal 
 estate from a trustee who happens to 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 w^as the innocent victim of a forgery 
 does not give him an equal equity with the beneficiaries. 
 In Bradley v. BicJies the point decided was, that the pre- 
 sumption 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 ; w^iereas in Cave v. Cave 
 the fact omitted to be communicated was the prior com- 
 mission of a fraud by the solicitor himself (o). 
 
 9. There is another species of imputed notice mentioned 
 in the Conveyancing Act of 1882, of quite as much impor- 
 tance as that mentioned in the last illustration, viz., notice 
 of " an 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 
 
 {I:) Saffron Walden v. Raymr, 14 Ch. D. 406. 
 
 (I) Cave V. Cave, 15 Ch. D. 639, cited as the 1st Illustration to this 
 Article. 
 
 (m) 2 Eq. 134. 
 
 (((.) 9 Ch. D. 189. 
 
 (o) And see also and dist. LloijcV'i Bank v. Bullock, [1896] 2 Ch. 
 192.
 
 '^96 THE CONSEQUENCES OF A BEEACH OF TRUST. 
 
 Art. 82. by express contract o?- even by not negativing inqjUed statu- 
 t07-y 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 (^;). It must 
 also be borne in mind, that notice of the existence of a deed 
 affecting 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 
 w^orld, you cannot see it, and then there will be no construc- 
 tive notice affecting the title. There is also a class of cases, 
 of which I think Jones v. Smith (q) 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. Supposing, as in Jones v. Sviitli, you are buying 
 land of a married man, and you are told at the same time 
 that 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 constructive notice 
 of its contents if you are told at the same time that it does 
 not affect the land " (/•). A similar instance of the same 
 rule occurs in the case of mortgages, where the purchase- 
 money is expressed to be 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 tlu; 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. 
 
 ip) Pntmanw //'n/'nit/, ITCIi. D. ."{oo. 
 (7) 1 Hare, 4.S. 
 
 (/■J /'«/•. I KSSKi,, M.li., I'<(liii'iii\. J/ur/diul, iiijj)'(i.
 
 FOLLOWING TRUST PROPERTY TO THIRD PARTIES. 397 
 
 10. In addition to documents, constructive notice may be Art. 82. 
 imputed to a purchaser from the state, appearance or occu- 
 
 pation of property. For instance, the existence of a sea- 
 wall bounding property has been held to give constructive 
 notice of a liability to keep it in repair (s). So notice of a 
 tenancy is notice of its terms ; and generally, where a 
 person purchases pj'operty 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 (t). 
 
 11. If an alienee of trust property is a volunteer, then the Absence of 
 
 estate will remain burdened with the trust, whether he had '^o^ice will 
 
 not protect 
 notice of the trust («) or not (r) ; for a volunteer has no a volunteer, 
 
 equity as against a true owner. 
 
 12. However, some transfers, apparently voluntary, have Transfer 
 
 been held to be equivalent to alienations for value. Thus, PY""^^ 
 
 into court 
 m Thorndikc v. Hunt (y), a trustee of two different settle- equivalent 
 
 ments having applied to his own use funds subject to one of ^° alienation 
 the settlements, 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 bene- 
 ficiaries under the other settlement could not follow the 
 trust fund. 
 
 13. So incumbrancers on a fund in court which has been Part of 
 
 transferred to a separate account before the incumbrances ?™^* ^"'^'^ 
 
 T • -111' f ^^ court 
 
 were created, are not postponed to prior equitable claims of transferred 
 
 other beneficiaries under the same settlement, subsequently to '''' separate 
 
 account. 
 
 (.s) Morkmd v. Cook, G Eq. 252. 
 (0 Allen V. Sec/cham, 11 Ch. D. 795. 
 (»,) MameU. v. Mamell, 2 P. Wms. 67S. 
 (x) lb. ; Spv7-(/fou. V. Collie); 1 Eden, 65. 
 
 {]/) 3 D. & J.' 5G ; and see Case v. Ja7nes, 3 D. F. & J. 256 ; and 
 DaiCfion v. Prince, 2 T>. & J. 41.
 
 398 
 
 THE CONSEQUENCES OF A BREACH OF TRUST. 
 
 Art. 82. 
 
 Piircliaser 
 with notice 
 fi-om pui- 
 chaser 
 without. 
 
 Wlieie 
 ■equities are 
 ecjual and no 
 legal estate 
 ill either 
 claimant. 
 
 discovered (z). 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 (a). All other questions are in fact treated 
 as res judicata. That 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. 
 
 ii. A purchaser with notice from a purchaser without 
 notice is safe ; for if he were not, an innocent purchaser for 
 value 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 stagna- 
 tion against which the law has always set its face (b). 
 
 15. Where a ti'ustee, holding a mortgage (c) or a lease (d), 
 deposits the deed with another to secure an advance to 
 himself, the lender will have no equity against the cestuis 
 que trusts, however bond fide he may have acted, and 
 however free he may have been of notice of the trustee's fraud. 
 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 j^rior i)i teiupore, i)otior in jure est " applies. 
 
 16. On the same principle, where a trustee has wrongfully 
 spent trust funds in the purchase of property, and afterwards 
 sold such last-mentioned property to a third party without 
 notice, then, if the legal estate has not been conveyed to the 
 third party, the cestuis que trusts will have priority over 
 him (c). For they have a right (as has been shown in 
 
 {::) //' h'l/foii, lidi-Uill V. (Jli>tr/< -^^ 4.") Ch. 1). 4.")S. 
 
 (a) /'<!■ Lord L.\N(;i)Ai.i:, M.K., AV ./rrrol.sc, 12 lioav. -iOi). 
 
 {!>) See Jlraiid/i/ii v. On/, 1 Alk. r>71 ; Loirl/ier v. Cdrllou, 2 ib. 242 ; 
 /'tacor/c V. Hurl, A L. .J. (Jli. '.VA, liut tlie doctrine is not to he extended 
 (WcM Loudon Jiaiik v. /Mianrf, itr. Socivly, 29 Ch. 1). 7(33. 
 
 (<•) Ncirlou. V. Xc.irioii, 4 rh. A])j). 14.S; and' ./oyc- v. /> MoUi/im, 
 2 .r. & \j. 374. 
 
 (d) Hi: Monian, I'ilhio m \. I'ilhinin, l.SCli. 1). i)3. 
 
 {<■) Frilh \.' Curl I and, 2 linn, k M. 417.
 
 FOLLOWING TRUST PROPERTY TO THIRD PARTIES. 809 
 
 Art. 72) to follow the trust fund into the property into Art. 82. 
 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 (/). 
 
 17. It is upon this principle that choses in action are Glioses in 
 generally taken subject to all equities affecting them. Thus, ^gg-gng^j *^ 
 in Turton v. Benson {g), a son, on his marriage, was to have subject to 
 from his mother, as a portion, a sum equal to that with ^^^ t^quities. 
 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. 
 
 18. Negotiable instruments are, however, an exception to Negotiable 
 the rule as to choses in action passing subject to all prior instruments, 
 equities. For the common laiv, with regard to them, adopted 
 
 the custom of merchants, and recognised that such instru- 
 xnents were transferable. 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 {h). Of course, 
 however, where the transferee has notice (express or 
 imputed (i) ) of prior equities, he will be postponed. 
 
 (/) And see as to deposit of shares certificates with blank transfers 
 forming part of a trust estate, Powell v. London and Provincial Bank; 
 [189.3] 2 Ch. 5orx 
 
 (q) 1 P. Wni. 496. 
 
 (h) Loudon Joint Stock Bank v. Simmons, [1892] A. C. 201. It 
 is not infrequently a task of difficulty to determine whether debentures 
 issued by public companies are negotiable instruments passing free 
 from undisclosed equities or not. As to this, the reader is referred to 
 Be Natal hivestment Co., 3 Ch. App. .355 ; Be General E-itates Co., ih. 
 lot ; and Be Bomford Caned Co., 24 Ch. D. 85. 
 
 (i) See Lord Sheffield v. London Joint Stock Bank; 13 App. Cas. 
 .333.
 
 400 
 
 THE COXSEQUEXCES OF A BREACH OF TRFST. 
 
 Art. 82. 
 
 Bona fide 
 ]iurchaseis 
 from trustees 
 cannot after 
 notice get 
 legal estate 
 from them. 
 
 19. The bond fide pui'chaser of an equitable interest^ 
 without notice of an express trust, cannot defend his 
 position by subsequently, 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 {k) . 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 (/). 
 
 (k) Sounder.^ v. Dehen, 2 ^'em. 271 ; ColUer v. ATBean, 34 Beav. 
 426 ; Sharpie-^: v. Adam-i:, 32 Bear. 213 ; Caritr v. Carter, 3 Kay & J, 
 617. 
 
 (/) Dodd-, V. HiUs, 2 Hem. & M. 424. 
 
 I
 
 INDEX. 
 
 ABROAD, 
 
 donee of power of appointing new trustee, 304. 
 
 person resoling, ought not to be appointed a trustee as a general 
 
 rule, 307. 
 trustee residing, for twelve months, may be superseded, 300. 
 but the residence must be for an uninterrupted twelve 
 months, 300. 
 
 ACCELERATION 
 
 of trust for sale, a breach of trust, 159. 
 
 ACCEPTANCE OF A TRUST. See Disclaimer. 
 acts equivalent to, 136 et seq. 
 acquiescence, 136, 138. 
 
 action, allowing to be brought in trustees' name, 136, 138. 
 allowing name to be used in relation to the trust property, 
 conduct, 137. 136, 138. 
 
 exercise of dominion, 137. 
 express acceptance, 137. 
 interfering with trust proj^erty, 137. 
 
 unless interference plainly referable to some other 
 ground, 137. 
 joining in legacy duty receipt, 138. 
 mere promise to accept not sufficient, 135. 
 probate, accepting, of will creating the trust, 137. 
 rents, collecting, 137. 
 duties of a trustee upon, 154 et seq. 
 
 bound to inc[uire what the property consists of, to ascertain 
 the nature of the trusts and to go through the documents 
 and notices relating to them, 154. 
 must investigate the acts of predecessor, 155. 
 
 not allow the trust fund to remain in the sole name of 
 
 co-trustee, 156. 
 see that trust funds are properly invested, 156. 
 result of not searching for notices of incumbrances may 
 render a new trustee liable to incumbrancers, 156. 
 
 ACCOUNTANT, 
 
 trustee may employ, in cases of special diflBculty, 226. 
 but not in ordinary cases, 226. 
 
 T. 2d [ 1 ]
 
 INDEX. 
 
 ACCOUNTS, 
 
 copies of, trustee not bound to furnisli without payment of 
 
 expenses, 255. 
 duty of trustee to keep, and allow beneficiary to inspect, 252. 
 failure of trustee to keep, 253. 
 
 may liave to pay costs to the hearing, 253. 
 no defence that trustee was illiterate, 253. 
 inaccurate but hondfide, 254. 
 
 summons for, modern practice is to order account to be delivered 
 out of court, the costs being reserved, 254. 
 
 ACCRETION, 
 
 belongs to beneficiaries, 246. 
 corpus, and not income, 161, 162. 
 
 ACCUMULATE, 
 
 duty of trustees of infant's propertj' to, 344. 
 
 liable for compound interest if they do not, 344. 
 
 ACCUMULATION, 
 
 direction for, until a given age, generally futile, 279. 
 forbidden beyond certain prescribed periods, 46. 
 for purchasing lands, further modern restriction as to, 47. 
 trust to keep up a policy of assurance for more than twenty-one 
 
 years is valid. Re Gardiner, Gardiner v. Smith, [1901] 1 Ch. 
 
 697. 
 
 ACQUIESCENCE. See Concurrence ; Laches. 
 
 in voluntary trust after learning its true nature, 73 et seq. 
 
 ACTIONS, 
 
 trustees bound to bring, for protection of trust property, if 
 indemnified, 357. 
 may bring, for protection of trust property, 150. 
 should in general act jointly as to, 324. 
 
 if they sever in, they may be allowed only one set 
 of costs, 324. 
 aliter, where it is necessary for one to be 
 ])lainti(f and the other defendant, 324. 
 the proper plaintill's in, against third parties, relating 
 to the trust [n'operly, 150. 
 
 ADMINISTRATION, 
 
 costs of, in discretion of court, 336 et seq. 
 
 direction by testator that trustee shall commence action for, 
 
 not, binding on court, 337. 
 order for general, suspends ])C)wers but not duties of trustees, 
 
 272 et seq. 
 .summoiiH for (h'tennination by judge of any ([uestion arising in 
 
 tlic a<lininistration of a ti'ust, 330 et seq. 
 under what circumstances court will make order for general, 
 
 335 ct seq. 
 when tru.stee is justified in commencing action for general, 385 
 
 ct seq. 
 
 [2]
 
 INDEX. 
 
 ADVANCEMENT 
 
 of infants, 262. 
 
 not where infant merely contingently entitled, 262. 
 wife or child. See Kesulting Trust (3). 
 
 ADVERSE TITLE, 
 
 trustee must not set up or supjjort, 238. 
 See Jus Tertii. 
 
 ADVICE, 
 
 although trustee may take, he must exercise his own judgment 
 
 on every question, 222, 224 et seq. 
 judge, of, trustee may apply for, 330. 
 
 on summons under R. S. C, Ord. LV., r. 3... 330. 
 not given on contingent questions, 331. 
 trustee committing breach of trust in pursuance of legal or 
 technical, how far indemnified, 222, 226. 
 may be evidence of diligence, 188 n. (c). 
 valuer, of, as to advancing money on mortgage, how far it pro- 
 tects trustee, 215, 224. 
 
 ADVISER, 
 
 even gratuitous and non-professional, is a quasi-trustee, 251. 
 
 ADVOWSON, 
 
 trustees for purchase should not buy an, 161. 
 
 AFTER- ACQUIRED PROPERTY, 
 
 assignments of, 85 nn. (?i), (o). 
 covenants to settle, 15, 20, 27, 32. 
 
 duty of trustee to enforce, 193. 
 
 how far avoided by bankruptcy, 20 n. (u), 85 — 89. 
 
 AGENT, 
 
 is a constructive trustee, if the agency be of a confidential 
 nature, 131, 136. 
 what constitutes a confidential, 131. 
 when trustee may employ an, 225 et seq. 
 See Delegation. 
 must choose the agent himself, 224. 
 
 AGREEMENT TO CREATE A TRUST, 
 creates a trust if based on value, 16. 
 
 ALIEN 
 
 may be a cestui que trust, 62. 
 trustee, 307. 
 
 ALIENATION, 
 
 discretionary trust on, for benefit of alienor and others, efi'ect 
 
 of, 281, 282. 
 gift over on, 281. 
 restraint on, 281 et seq. 
 
 ALLOWANCE. See Remuneration ; Reimbursement. 
 2 D 2 [ 3 ]
 
 INDEX. 
 
 ANIMALS, 
 
 trust for benefit of certain animals useful to man may be enforce- 
 able as a charity, 62, n. (s). 
 for the benefit of, not void except so far as it may trans- 
 gress rule against perpetuities, 64. 
 but not enforceable it trustee declines to carry it out, 63. 
 may be good as charitable trust, though not limited in 
 
 point of time, 64. 
 no American decisions on the point, 65, n. (i). 
 
 ANNUITY, 
 
 charged on capital, how borne, 180. 
 
 person for whom an, is directed to be purchased may claim 
 capital money, 277. 
 even though anticipation be restrained on pain of forfeiture, 
 
 277. 
 
 ANTICIPATION, RESTRAINT ON, 
 
 generally void, 48, 281. 
 
 aliter, in case of pay, pensions or property inalienable by 
 statute, 41 et seq. 
 
 aliter, in case of married woman during coverture, 48, 281. 
 married woman restrained from, cannot release a breach of 
 trust, 372. 
 
 even if breach caused by her husband, 372. 
 
 expression of settlor's wish, and request that female bene- 
 ficiary should not sell, imports, 22, n. Qi). 
 
 interest of married woman restrained from, who instigates 
 breach of trust may now be impounded, 375, 380. 
 
 may nevertheless bar estate tail, 282. 
 
 APPEAL 
 
 by trustee is at his own risk, 335. 
 
 APPOINTMENT OF NEW TRUSTEE. See New Trustees. 
 
 apportion:\ient 
 
 of incomings and outgoings. 
 Hee DuTiKS of Trustee (3), (5) ; Tenant for Like 
 Remainderman. 
 
 APPRECIATION 
 
 of seciirities is capital and not income, 161 et seq. 
 
 APPROPRIATION 
 
 of securities to answer the share of part icular beneficiary, 16:'. 
 a])propriatu(l share may be paiti or transferred, when, 163. 
 may be made even iK-.fore the ])eriod of distribution, 164. 
 once pr<jperly nuide, one appropriated share is not liable to 
 
 mak(! good dctterioralion of another, 164. 
 ])riii(iplt' on wliicii tlie court acts (see ii'cL'cycr^ey, Watson v. 
 ]V,>l.<iu,, [l!)i>IJ 1 ("li. 681). 
 
 ARTICLKS, 
 
 marriage, construed liberally, 94, 96.
 
 INDEX. 
 
 ATTORNEY. See Solicitor. 
 
 appointed by beneficiary, trustee may safely pay to, 271. 
 trustee may appoint, and act through, in cases of necessity, 225. 
 
 AUCTIONEER, 
 
 is a trustee of a deposit paid to him, 132. 
 
 trustee may allow an, to receive but not to retain deposit, 233. 
 
 AUTHORITY, 
 
 beneficiary, of, 275 et seq. 
 
 See Benefici.vry. 
 trustee, of, 256 et seq. 
 
 See Powers op Trustee. 
 
 B. 
 BANK, 
 
 trustee may deposit in, for a reasonable time pending invest- 
 ment, 233. 
 six months said to be the maximum period, 233. 
 
 BANK ANNUITIES. See Investment. 
 
 BANKER, 
 
 custody of trust securities may be confided to, 198, 232. 
 delegation to, of right to receive trust money is good in certain 
 
 cases, 228. 
 liability of, for parting with trust fund to wrong persons, 384. 
 paramount lien of, where he has no notice of the trust, 393. 
 trust money may be left with, for a reasonable period pending 
 
 investment, 233. 
 trustee when liable for failure of, 233 et seq. 
 
 BANKRUPT TRUSTEE, 
 
 may be removed by court, 302. 
 
 query, whether may be removed hostilely under statutory power, 
 
 receiver will be ajjpointed in case of, 357. 297. 
 
 BANKRUPTCY, 
 
 agent, of, does not make money of his principal in his possession 
 
 liable to be divided among his creditors, 352. 
 settlement of future acquired property, effect upon, 85. 
 settlor of, effect on settlement, 85 — 87. 
 
 in no case invalidates it as against jjurchasers for value 
 from the beneficiaries, 86. 
 trust for personal enjoyment notwithstanding is invalid, 48. 
 aliter where trust is until, and then over, 48. 
 unless the bankrujDt was settlor, 48. 
 trustee of, 149 et seq. 
 
 should prove against his own estate, 193. 
 trust property not liable to his creditors, 149. 
 aliter if it cannot be traced, 352. 
 
 ARE TRUSTEE, 
 
 meaning of, 286, n. (</). 
 
 [5]
 
 INDEX. 
 
 BAERING ENTAIL, 
 
 married woman restrained from anticipation is capable of, 282. 
 
 BEAEER, 
 
 custody of securities payable to, 198. 
 
 trustee should not obtain stock certificates payaljle to, 201. 
 
 BENEFICIARY, 
 
 assign of, is in no better position than his assignor if. latter is 
 
 indebted to estate, 387. H 
 
 concurrence of in breach of trust, 367. See Breach of Trust. 
 debt owing from, to trust estate, 387. 
 definition of, 1. 
 failure of, 152. 
 
 identity of, trustee liable for mistake as to, 217 — 220. 
 impounding beneficial interest of, to make good breach of 
 
 trust, 379, 386 et seq. 
 instigating breach of trust may have to indemnify trustee, 375, 
 
 and also co-beneficiaries, 382, 386 — 389. 
 laches of, may be a bar to relief, 371. 
 liability of, who is privy to a breach of trust, 382, 390. 
 
 See Breach of Trust. 
 liability of, to indemnify trustee — 
 
 for expenses and disbursements, 320. 
 where he has instigated breach of trust, 374 — 379. 
 married woman, who has instigated breach of trust, liabilitv of, 
 to co-beneficiaries, 389. 372, 375, 380,'389, 
 
 trustee, 372, 373, 375, 380. 
 mistake of trustee, as to identity of, 217 —220. 
 overpaid, how far liable to refund, 388. 
 party to breach of trust, liable, 382. 
 
 and may have to indemnify trustee, 374 — 379. 
 persons capable of being, 62 et atq. 
 aliens, 62 et seq. 
 animals, 64, 
 corporations, 64. 
 married women, 63. 
 
 invention of separate use to protect, 63. 
 no human beneficiary, trust not necessarily illegal if trustee 
 willing to carry it out, 63. 
 trust to keep toml)s in repair, must be limited within 
 
 rule against ])erpetuities, 64. 
 view of the American (Courts, 64, 65. 
 power of beneficiaries collectively in sjiecial ti'ust, 276. 
 direction to settle on daughters, 278. 
 
 on daughters and their issue, 278. 
 may, where all aui juris, ])ut an end to trust, 276, 279. 
 
 rule in Saunders v. Vautier, 279. 
 property vested at twenty-one, l)ut payable at twenty-five, 
 may be demanded at twenty-one, 279. i "-'-J 
 
 aliter where intermediate intA-iest does not go to'same 
 l)eneficiaiy, 277. 
 l)Urcliase of annuity directed, beneficiary entitled to 
 purchase money in place of annuity, 277.
 
 INDEX. 
 
 BENEFICIARY— co?i^iu«cf?. 
 
 power of beneficiaries collectively in special trust — continued. 
 sell, direction to, may be stayed by beneficiaries collectively, 
 
 278. 
 power of one of several beneficiaries in a special trust, 280. 
 alienate, may, liis share and interest, 281. 
 
 unless a married woman restrained from alienation, 281. 
 or where gift over to another on alienation, 281. 
 power of, in simple trust, 275. 
 
 may put an end to trust, 275. 
 
 possession, ecpiitable tenant for life, how far entitled to, 282. 
 trustee may consult, before exercising his discretion, 223. 
 
 BILL IN PARLIAMENT, 
 trustee may oppose, 259. 
 
 BONUS, 161. Sec Tenant for Life ; Remainderman. 
 
 BORROWER, 
 
 trustee cannot be, of trust fund, however good the security may 
 be, 238. 
 
 BREACH OF TRUST, 341 etseq. 
 
 acquiescence in by beneficiary, 369, 371. 
 beneficiaries, liability of, for, where privy to a breach, 382. 
 how far bound to indemnify trustees, 379. 
 
 [See infra, sub-head " protection."] 
 even where bound to indemnify, not bound to make good 
 trustee's beneficial interest, if any, 379. 
 concurrence of, or release by beneficiaries, 369, et seq. 
 
 to bind beneficiary he niust be sui juris, unbiassed by undue 
 influence, and either act with full knowledge, or retain 
 the benefit of the breach, 369, 372 et seq. 
 where all beneficiaries have not concurred, trustee may 
 have right of indemnity against some who have instigated 
 breach,'"370, 382. 
 consent to, in writing may render a beneficiary liable to indem- 
 nify trustee, 375. 
 contribution, trustees generally entitled to, inter se, 374, 375 
 lien for, on costs awarded to co-trustee, 376. et seq. 
 
 court will compel performance of duty, or prevent the commis- 
 sion of a breach, 356 etseq. 
 criminal proceedings may be taken with leave of Attorney- 
 General where breach is fraudulent, 358. 
 depreciated security, not necessarily duty of trustee to realise, 
 
 impounding beneficial interests of beneficiary who has instigated, 
 to indemnify trustee, 379 et seq. 
 where beneficiary a feme covert, 380. 
 impounding beneficial interest of beneficiary who is party to a 
 breach of trust to make loss good to trust estate, 382 
 
 et seq. 
 right of co-beneficiaries to take priority of purchasers and 
 mortgagees of guilty parties' interest, 387. 
 
 [7 1
 
 INDEX. 
 
 BREACH OF TRVST— continued. 
 
 indemnity against, trustees entitled to, from co-trustee, who is 
 also a beneficiary, or who has acted fraudulently, or was 
 solicitor to the trust, 375 — 377. 
 or from a beneficiary who has instigated breach, 375. 
 trustee paying, entitled to lien on costs given to co-trustee, 
 injunction to restrain contemplated, 356. 376. 
 
 mandatory, to compel performance of duty, 356. 
 neglecting to renew lease, 357. 
 
 sue a wrongdoer, 357. 
 sale at an undervalue, 357. 
 same persons trustees of conflicting trusts, 357. 
 whether misconduct active or passive, 356. 
 who may apply to the court for, 356. 
 ignorant or illiterate trustee, by, 226. 
 innocent trustee may be entitled to indemnity from less innocent 
 
 one, 377. 
 instigator of breach may have to indemnify trustee, 375, 379. 
 laches of beneficiary may be a bar to relief, 371. 
 liability of trustees for, joint and several, 348. 
 
 notwithstanding that some may have been more blame- 
 worthy than others, 348. 
 rule applies to all persons who meddle with trust property 
 with notice of the trust, 348, n. {d). 
 measure of the trustee's lial)ility for, 341. 
 
 amount by which the trust property has been depreciated, 
 
 341. 
 cases in which there would have been a loss apart from 
 
 breach of trust, 344. 
 direction to invest in consols disobeyed, trustees liable 
 to purchase the amount of consols which the fund 
 would have purchased at the date at which it ought 
 to have been invested, 343. 
 wrongfully parting with trust shares, on which calls 
 subsequently paid, 343. 
 interest where allowed, 342. 
 
 where he has received interest, 342. 
 
 ought to have received it, 342. 
 accumulation directed, 344. 
 circiuustances under which simple or compound 
 
 inteiest will be allowed, 344. 
 what I'ate will be allowed, 344. 
 where the breach was fur trustee s private advantage, 342. 
 com])ound interest may be allowed if circum- 
 stances justify inference that trustee has made 
 it, 346. 
 mere neglect to withdraw trust funds from trustee's 
 business not enougli to render him liable for 
 conij)oiind interest, 340. 
 solicitor trustee using the trust fund in his 
 
 business, not cluirged couqjound interest, 346. 
 where circumstances negative tlie inference that 
 trusti'c has )na<U' compound interest he will not 
 be cliarged it, 316. 
 
 [ «]
 
 INDEX. 
 
 BREACH OF TRV&T— continued. 
 
 mortgage, which turns out to be an insufficient security for trust 
 moneys, 342, 346, 347. 
 trustee only now liable for sum advanced in excess of what 
 ought to have been advanced, 342, 346, 347. 
 aliter where the mortaged property of a kind on which 
 no advance of trust money ought to be made, 347. 
 trustee when entitled to ojJtion of taking over the security 
 himself, 348. 
 property wrongfully acquired with trust funds becomes subject 
 to the trust, 351 et scq. 
 aliter where the trust fund cannot be traced, 353. 
 if all beneficiaries sui juris they can elect to adopt the 
 property so acquired, 351, 352. 
 aliter if not sui juris or if one objects, 351. 
 
 in that case property may and should 1)8 recon- 
 verted by trustees, 351, 353. 
 where partly acquired with trust fund, and partly out of 
 trustee's own money, beneficiaries have a first charge, 
 
 351, 354. 
 aliter if the trust fund cannot be traced into the pro- 
 perty so acquired, 355. 
 trust fund paid into trustee's banking account, gives 
 beneficiaries a lien on his balance, 354. 
 subject to banker's lien, 355. 
 protection accorded to trustees against liability for, 359 et seq. 
 concurrence of, or release by beneficiaries, 369. 
 contribution from co-trustees 374. 
 co-trustee, protection against the acts of, 367. 
 if they have acted reasonably and honestly, 359. 
 
 provisions of Judicial Trustee Act, 1896, as to, 359. 
 what conduct is reasonable and what unreasonable, 
 
 360,361. 
 indemnity from co-trustee or beneficiary who has instigated 
 
 the breach, 374. 
 release by beneficiaries, 369. 
 
 Statutes of Limitation, how far applicable to, 362 — 366. 
 accounts more than six years old, 365. 
 charges, how far applicable to, 366. 
 constructive trusts, in cases of, 366. 
 defaulting confidential agents, 366. 
 difficulty of construing the statute, 363. 
 embezzlement by trustee's agent, 365. 
 failure to convert as directed l)y trust, 364. 
 fund expended in infant's maintenance, 364. 
 illegal trust, in case of, 366. 
 inapplicable where trustee retains trust property, 365. 
 
 or has made a false statement, 365. 
 insufficient security, 364. 
 resulting trusts in cases of, 366. 
 
 where trustee has remotely benefited by breach, 365. 
 receiver when appointed, 358. 
 
 retirement of trustee, in order that new trustees may commit, 
 
 199. 
 
 [9]
 
 INDEX. 
 
 BREACH OF TB-V ST— continued. 
 
 set-off of gain on one breach against loss on another generally 
 disallowed, 349, 350. 
 ((liter where the two breaches are only items of the same 
 
 transaction, 349, 351. 
 building (without authority) on the trust property allowed 
 to set-off gain against the price paid to the builder, 349. 
 solicitor trustee, how far liable to indemnify co-trustees who 
 
 have been misled by his advice, 378. 
 third parties, liability of, for, 382—400. 
 
 BEICKFIELD, 
 
 trustees should not advance money on mortgage of a, 216. 
 
 BROKER, 
 
 when trustee liable for default of. See Delegation. 
 
 BUILDING SOCIETY, 
 
 investment clatises of Trustee Act do not apply to funds of a, 
 
 206, n. (e). 
 
 BUSINESS. See Trade. 
 
 conversion of, into a joint stock company, trustees cannot in 
 absence of express authority, accept price in shares or deben- 
 tures, even bv leave of court. Re Morrison, Morrison v. Morrison, 
 [1901] 1 Ch.^701. 
 
 c. 
 
 CALLING IN 
 
 an insufficient security, how far the duty of trustees, 191. 
 
 CALLS 
 
 paid by trustees on shares forming part of trust property may be 
 
 recovered by them, 321. 
 are payable out of cixpital, and not out of income, 181. 
 
 CANCELLATION OF SETTLE:\IENT, 66 et seq. 
 
 allowed only in cases of fraud, undue influence, or mistake, or if 
 the object of the trust has ceased to exist, 66 et seq. 
 the fact that it is voluntary makes no difference, 67. 
 A7i(l see Undue Influence ; Mistake ; Failure of 
 Consideration. 
 
 CAPRICIOUS TRUST, 
 
 to defer the enjoyment of property by any person void, 65. 
 
 CARE, 
 
 trustee bound to exercise reasonable, 188 — 199. 
 
 See Prudence. 
 as to investments. See Investments. 
 
 CATS, 
 
 trusts for benefit f)f, how far valid, 64. 
 
 CESTUI QUE TRUST. See Beneficiary. 
 
 [ 10]
 
 INDEX. 
 
 CHARGE. Sec Ixcumbrance. 
 
 no resulting trust of residue after payment of, 105, 106. 
 Statute of Limitations applies to a, .366. 
 
 tenant for life paying off, is entitled to be recouped out of 
 corpus, 130. 
 
 CHARITABLE TRUST 
 
 not confined to trusts for benefit of human V)eings, 62, n. (s), 65. 
 of private nature, may give rise to a resulting trust, 105, n. {k). 
 
 CHATTELS, 
 
 inventory of, should be made and kept by trustee, 198. 
 trust of, may be declared verbally, 52, 54. 
 
 CHEQUE, 
 
 imperfect gift of a, not equivalent to declaration of trust, 36. 
 
 CHILD. See Advancement ; Maintenance ; Resulting Trust'(3) ; 
 Illegitimate Children. 
 
 CHOSE IN ACTION, 
 
 now freely assignable, 40, n. (s). 
 puixhaser of, takes subject to all equities, 399. 
 secus, if it be a negotiable instrument, 399. 
 
 CLASS, 
 
 ascertainment of, on originating summons, 330. 
 power of disposal among a, raises a trust, 20. 
 
 CLERGYMAN, 
 
 undue influence of, 70. 
 
 COMMISSION. See Salary. 
 
 COMPANY. See In\'estment ; Directors. 
 
 COMPOUND INTEREST, 340. See Breach of Trust. 
 
 COMPROMISE, 
 
 power of trustees to effect a, 192. 
 
 CONCURRENCE 
 
 of cestui que trust in breach of trust, 369 et seq. 
 See Breach of Trust. 
 
 CONDITIONAL GIFTS, 
 
 how far they create trusts, 14, n. (c). 
 
 where there is a condition that donee shall, at req^uest of trustee, 
 stay all litigation, it is trustee's duty to make the request. 
 
 193, n. (s). 
 
 CONDITIONS, 
 
 how far they create trusts, 22, n. (c). 
 of sale. See Sale. 
 
 trustees must fulfil all. See Duties of Trustee (2). 
 should enforce against beneficiary, 193, n. (s). 
 
 [11]
 
 INDEX. 
 
 CONFIDENTIAL ADVISER 
 
 a constructive trustee, 251. 
 
 cannot purchase from pei'son whom he is advising unless latter 
 be separately advised, 251. 
 
 CONFLICTING SETTLEMENTS, 
 
 where same persons are trustees of both, receiver will be 
 appointed, 357. 
 
 CONFORMITY. See Receipts. 
 
 CONSENT, 
 
 in writing of beneficiary to a breach of trust, may render him 
 liable to indemnify trustee to the extent of his beneficial 
 interest, 375, 379. 
 where required must be obtained, 158. 
 
 in one case held sufficient where given ex post facto, 158, 
 
 n. (0. 
 CONSIDERATION. See Valuable Consideration. 
 total failure of, makes trust revocable, 66, 69. 
 who are considered parties privy to the, 28 et seq. 
 
 CONSTRUCTION. See Executed and Executory Trusts. 
 
 questions of, may be determined on originating summons, 330. 
 
 CONSTRUCTIVE TRUST AND TRUSTEE, 125 et seq. 
 confidential agents are, 131. 
 
 what constitutes a confidential agent, 131. 
 definition of, 8. 
 
 fraud, property acquired by, 133. 
 lease, renewal of, by one of several beneficiaries, 125, 
 mortgagee in possession is a, 130. 
 mortgagor under equitable mortgage is a, 129. 
 partnership liens, 132. 
 
 profits made by persons in fiduciary positions, 125 et seq. 
 agents, profits made by, 127. 
 
 not always fiduciary so as to become constructive 
 trustees, 127, 131. 
 directors of com])anies, 127. 
 
 cannot contract with company, 127. 
 commissions accepted by, 127. 
 joint tenants, 127. 
 mortgagees, ] 27. 
 partners, 127. 
 
 jiromoters of companies, 127. 
 solicitor ])Uichasing from client, 128. 
 tenant for life receiving money by way of solatium for 
 
 injury to the inlieritance, 126. 
 tenant lor life of U'useliolds renewing lease to himself, 12G. 
 ti'uslcc rcc(;iving commission from solicitor, 126. 
 Miiewing lease to himself, 125. 
 reniaindcrniiiu is a, for ])ersonal representatives of tenant for 
 
 life wlio has ]iaid olfa cliarge or calls on shares, 130. 
 renewal of lease by one of several beneficiaries, 125. 
 I'csidllng. Sec Rehultino Trust. 
 
 [12]
 
 INDEX. 
 
 CONSTRUCTIVE TRUST AND TUJJUT'EE—conHnued. 
 
 shareholders who have received dividends ultra vires are, for 
 company, 133. 
 
 stranger knowingly receiving trust funds is a, 133. 
 
 summary of, 101. 
 
 tenant for life who jjays off incumbrance, is entitled to a con- 
 structive trust in his favour on the inheritance, 130. 
 
 third parties knowingly meddling with trust property, 133. 
 
 vendor and purchaser may be, for each other, 128. 
 
 CONSULT, 
 
 trustee may, one of his beneficiaries before making investment, 
 223. See also Advice. 
 
 CONTINGENCY. See Trust Property. 
 
 court will not generally give opinion on question depending on, 
 
 331. 
 
 CONTRACT. See Covenant. 
 
 CONTRIBUTION 
 
 among trustees, 374, 375. 
 
 as general rule where one trustee has been sued for breach he is 
 entitled to contribution from co-trustees, 374 et seq. 
 where one has been guilty of fraud, or is solicitor to the 
 others, he may have to bear loss exclusively, 374, 
 
 376 et seq. 
 aliter, where no fraud, even although one of the trustees 
 may have indirectly benefited by breach, 378. 
 trustee who is entitled, to contribution has lien for such 
 contribution on costs awarded out of the estate to his co- 
 trustee, 376. 
 
 CONTRIBUTORY MORTGAGE, 
 
 trustees prohibited from investing on a, 213. 
 
 CONTROL OF COURT, 
 
 funds under, how invested, 204. 
 
 CONVERSION. See Following Trust Property ; Resulting 
 Trust (4). 
 directed by instrument which wholly or partially ituls, to whom 
 property results, 119 et seq. 
 directed by will, property results as unconverted, 120. 
 
 even where testator says that it is to be considered as 
 converted for all purposes, 121. 
 mere power to effect, 124. 
 
 person to whom property subject to, results, holds it, as con- 
 verted, if conversion ought to take place, 120 — 124. 
 immaterial that conversion has not in fact been made if it 
 ought to have been, 121 — 124. 
 same rule applies to property sulyect to, under instrument inter 
 vivos, 124. 
 
 CONVICT, 
 
 cannot create a trust, 61. 
 
 trustee, estate does not vest in administrator, 149, n. (s). 
 
 [13]
 
 INDEX. 
 
 COPYHOLDS, 
 
 liow far capable of being settled l\y way of trust, 43. 
 trustee can demand admission to, 151. 
 vesting declarations, not applicable to, 310. 
 
 orders of, 314. 
 voluntary covenant to surrender, not enforceable, 32. 
 
 CORPOEATIOX, 
 
 cannot be cestui que trust of lands except by mortmain licence, 
 lioAv far able to create trusts, 60. 62. 
 
 stocks of, trustees may invest in, 203. 
 
 COEPUS AND IXC0:\1E. 
 
 See Texaxt for Life ; Remaixdermax. 
 
 COSTS, 
 
 accellerating trust for sale, caused by, 325. 
 accounts, of summons for, 254. 
 
 of copies of, 255. 
 administration action, of, 323, 336, 337. 
 appointment of new trustees, of, 293, 294, n. (y), 324. 
 depriving trustee of Ms costs, a severe proceeding, 323. 
 appealable, 323. 
 
 only proper when guilty of gross misconduct, 323. 
 incidence of, as between capital and income, 187. 
 indemnity against, trustees sometimes entitled to personal, 
 
 from beneticiaries, 320. 
 information, of procuring, required by a beneficiary, 255. 
 lien of trustees, for, 326. 
 
 whether applies when settlement void, 326. 
 " no order " as to trustee's costs, if so expressed, may deprive 
 
 him of right to reimbursement, 323. 
 payment into court, of, 333. 
 retirement of trustee, caused by, 293. 
 right of trustees to be reimbursed all reasonable, 320 — 328. 
 
 See Reimbursement. 
 severance in defending or commencing proceedings, extra costs 
 
 caused by, 324. 
 trustee refusing to convey, caused by, 313, n. (e). 
 undue caution of trustee, caused by, 333. 
 
 unreasonable conduct of truStee, ground for depriving him of, 
 expenses disallowed, 325. 324. 
 
 unsuccessfully defending an action, of, 325. 
 where trustee owes money to estate, he must replace it before 
 
 taking his costs, 327. 
 
 CO-TRUSTEE, 
 
 effect of special protective clause as to, 368. 
 
 even where he may be siifely permitted to receive, he must not 
 
 Ije allowed to retain trust, moneys, 220, 223, 237. 
 opinion of Lord Wkstiuky as to responsibility for, 368. 
 trustee cannot relieve himself of responsibility by deputing his 
 duties to, 220, 223, 237. 
 retiring in order to enable, to commit breach of trust, 
 
 199, 368. 
 when trustee answerable for default s, acts, or receijits of, 367 et seq. 
 
 I 11 ]
 
 INDEX. 
 
 COURT, 
 
 appointment of new trustees by, 295, 302 et seq. 
 
 See New Trustees. 
 originating summons for determination by, of specific questions, 
 removal of trustee by, 290 et seq. 330. 
 
 retirement of trustee under sanction of, 293. 
 securities authorised by, for tlie investment of funds under its 
 control, 204. 
 alleged inconsistency between, and Trustee Act, 1893, s. 1 
 
 ...204, n. (/j). 
 trustee instituting administration suit in, 334 et seq. 
 
 not justifiable where all questions could be solved by pay- 
 ment of fund into court or by issuing an originating 
 summons, 337. 
 what will justify a trustee in instituting a suit in, 334 et seq. 
 when general administration will be ordered, 335 et seq. 
 trustee may apply to, for directions when third party claims 
 
 trust property, 237—239. 
 when trustee maj^ pay into, 331 et seq. 
 
 effect of paying trust money into, 337. 
 
 generally, trustees must not pay into court where 
 question can be determined by means of originating 
 summons, 333. 
 what sufficient justification for paying into, 332 et seq. 
 
 to enable married woman to assert equity to a settle- 
 ment, 333. 
 undue caution, 333. 
 
 where beneficiaries under disability, 332. 
 dispute between beneficiaries, 332. 
 money claimed by representative, 332. 
 money payable in default of appointment, 333. 
 reasonable doubt or claim, 333. 
 
 COVENANT, 
 
 to settle, raises a trust when based on value, 15, 20. 
 aliter, where voluntary, 27, 32. 
 
 but covenantee may sometimes get damages at law, 28. 
 bankruptcy of covenantor before covenant performed, 20, 
 n. (u), 85—89. 
 duty of trustee to enforce against settlor, 193. 
 
 COVERTURE 
 
 means effective marriage, 281, n. {x). 
 
 CREATION OF TRUST. See Express Trust. 
 
 CREDITORS, 
 
 of settlor on bankruptcy, 85. 
 
 See Bankruptcy. 
 settlement intended to defeat, 74 et seq. 
 
 See Validity (2). 
 trustee personally liable to, of business carried on by him, 322. 
 but may generally claim reimbursement out of trust 
 
 estate, 322. 
 creditors may stand in trustees' shoesby way of subrogation, 
 
 322. 
 
 [ 15 ]
 
 INDEX. 
 
 CHEmTOnS— continued. 
 
 where trust is for payment of debts, are not generally cestuis que 
 trusts, 24 et seq. 
 aliter, where trust is to take effect only after settlor's 
 death, 25, n. (q). 
 
 CRIMINAL PEOCEEDINGS 
 for breach of trust, 358. 
 
 CROWN. Sec Failure. 
 
 CUSTODY 
 
 of trust securities, 198, 232. 
 
 D. 
 
 DAMAGES 
 
 may sometimes be recovered from a voluntary settlor, 28, 
 
 n. (h) 
 recovered from trustee may be reimbursed out of trust estate 
 
 321 
 DEATH OF TRUSTEE, 284 et seq. 
 
 (1) devise of trust estates prior to 1882... 287. 
 
 query, whether copyhold trust estates may not still be 
 
 devised, 287. 
 whether devisee could execute the trust, depended on the 
 
 language of the settlement, 289 et seq. 
 
 (2) devolution of office and estate on death of survivor, 285 
 
 law prior to 1882... 286— 288. [et seq. 
 
 since 1881 devolves on legal ^^ersonal rejjresentative, 285. 
 
 aliter, as to copyholds, 284, 289. 
 special executors to administer trust cannot be appointed 
 
 285, n. (/) 
 whether legal personal rejsresentative can execute trust 
 depends on language of settlement, 286, 288 et seq. 
 
 (3) survivorshiii of office and estate, 284 et seq. 
 
 sale by survivor, 284 et seq. 
 
 survivor can execute all the powers, 284 et seq. 
 
 DEBTS, 
 
 may be the suliject of a trust, 40. 
 trust ibr jiaymcnt of, wlien illusory, 24 et seq. 
 trustee may release or compound, 191, 192. 
 emjiloy collector of, 232. 
 should exercise reasonable discretion as to realisation of, 
 
 191, 192. 
 generally realise within a reasonable time, 189, 197. 
 prove on bankruptcy even where he is himself the 
 debtor, 103. 
 
 DECEASED TRUSTEE, 
 
 rej)resenlativ('s of, not liiibU; cither to beneliciaries or to contri- 
 bute to jiidgiiieiit ol)luined against co-trustee where deceased 
 left trn.st luiid ]irn|i( riy invested, 376, n. (f). 
 aliter, if he has iiii]irop(rly left it uninvested, 376, n. (c). 
 
 [ 10 ]
 
 INDEX. 
 
 DECEASED WIFE'S SISTER, 
 
 settlement on marriage with, when valid, 69, 109. 
 trusts for issue by, void, 49. 
 when void, 69, 109. 
 will in favour of future issue by, valid, 49. 
 
 DECLARATION OF TRUST, 
 
 imperfect gift not construed as a, 36 et seq. 
 implied froni conduct, 34. 
 what is a inimd facie valid. Hec Language. 
 when writing necessary. See Writing. 
 
 DECLARED TRUST. See Express Trust. 
 
 DEFINITIONS, 
 
 active trustee, 10. 
 
 l)are trustee, 286, n. {g). 
 
 beneficiary, 1. 
 
 breach of trust, 1. 
 
 cestui que trust, 1. 
 
 constructive trust, 8. 
 
 equitable estate, 6. 
 
 executed trust, 94. 
 
 executory trust, 94. 
 
 express trust, 8. 
 
 legal estate, 6. 
 
 party privy to consideration, 28. 
 
 passive trustee, 10. 
 
 simple trust, 10. 
 
 special trust, 10. 
 
 trust, 1 et seq. 
 
 trustee, 1. 
 
 trust property, 1. 
 
 volunteer, 29. 
 
 DELEGATION OF TRUST, 220—233. 
 
 agent to, not generally allowed, 220 et seq. 
 
 aliter where authorised by trust, or where it is practically 
 unavoidable, or where the delegated duty involves 
 no discretion, 221, 225. 
 where delegated act is receipt of money by banker or 
 solicitor in certain cases, 229. 
 to receive money, even where allowable, does not excuse 
 trustees from seeing that it is promptly paid over to 
 them, 221. 
 banker, money may be remitted through, 232, 233. 
 
 and in some specified cases may be collected by, 229. 
 but not left unnecessarily for a long time in liis 
 hands, 233. 
 Ijroker, trust for sale or purchase of stock exchange seciirities 
 
 may be delegated to a, 225. 
 co-trustee, to, not allowed, 220, 223, 237. 
 custody of trust securities, 198, 232. 
 <lebt collector may be employed, 232. 
 
 T. 2 E [ 17 ]
 
 INDEX. 
 
 DELEGATIOX OF T'RVST—coyitinued. 
 
 discretion, trustee bound to exercise, in choice of agent, ■where 
 delegation allowed, 222. 
 but he does not guarantee the performance of agent's 
 dutr, 222. 
 effect of s.'24 of Trustee Act, 1893, as to, 192. 
 forbidden, either to a co-trustee or a third party, 220, 223, 224. 
 aliter where authorised by trust, 220. 
 
 or where delegation is practically necessary, 221, 225. 
 delegated act is receipt of money by banker 
 or solicitor in certain class of cases, 229. 
 or the delegated duty involves no discretion, 221, 225. 
 foreign country, acts to be done in, may be delegated, 225. 
 joining with others in a sale, 232. 
 judgment, trustee should never delegate his, 223, 224. 
 but may nevertheless consult his beneficiaries, 223. 
 
 or experts, 224. 
 must choose his own agents, and not delegate choice to 
 solicitor, 224. 
 leasing, power of, must not be delegated, 224. 
 reasonableness is the true test of the A'alidity of, 222. 
 receipt signed for conformity, does not make trustee responsible 
 if he did not in fact, and was not bound in law to receive 
 the money, 221, 222. 
 effect of Lord St. Leonard's Act as to, 222. 
 receive trust money, to, generally a breach of trust, 220, 228. 
 aliter, where practically unavoidable, 231. 
 even where allowed, trustees must promptly see that it is 
 
 paid over to them, 221, 229, 233, 237. 
 statutory authority to delegate to solicitor or banker in 
 certain specified cases, 229. 
 sale, trust for or power of, must not lie delegated, 224. 
 
 aliter in ca.se of stock exchange securities, 225. 
 skilled advice, hoAv far trustee may rely on, 226. 
 
 must form his own judgment in every case, 226. 
 solicitor, how far trustee responsible for advice of, 226. 
 
 how far trustee may delegate the receipt of money to, 229. 
 steVards and other servants may be employed where necessary, 
 summary of law as to, by Kekewich, J., 222. 225. 
 
 DELAY. See Laches. 
 
 DEPRECIATED SECURITY, 
 
 not necessarily the duty of trustee to call in, 191. 
 
 DEPRECIATION OF SECURITIES. See Breach of Tru.st ; 
 Inve.stment. 
 
 DEPRECIATORY CONDITIONS OF SALE, 194, 265. 
 
 DEVISE 
 
 of estatf tf> trustee sonietinus implied if trust requiroe him v> 
 
 h.ive legal estate, 141, n. (/). 
 of trust e.state.s 285 et mij. 
 
 no longer allowed, unless as to copyhf)lds, 285 et se'j. 
 
 [18]
 
 INDEX. 
 
 DEVISEE. See Resulting Trusts. 
 
 of trustee, when lie could formei'ly execute a special trust, 289. 
 
 DEVOLUTION. See Death of Trustee. 
 
 DILIGENCE. 
 
 what degree of, is required from a trustee, 188 — 199, 226. 
 See Negligence. 
 
 DIRECTION 
 
 of judge obtainable on summons, 330. 
 words of, raise a trust, 18, 19. 
 
 DIRECTORS OF COMPANIES 
 are constructive trustees, 127. 
 
 and can now plead Statute of Limitations, 362, n. (q). 
 contribution among, for breach of trust, 376, n. (6). 
 
 DISABILITY 
 
 of cestui que trust under foreign law, 219. 
 meaning of persons under, 276, n. (b). 
 
 DISCHARGE, 
 
 trustee entitled to, on completion of trust, 328 et seq. 
 not entitled to a, under seal, 328 et seq. 
 
 DISCLAIMER, 134 et seq. 
 how effected, 134 et seq. 
 by conduct, 135. 
 deed, 135. 
 
 refusing j^robate, 136. 
 married woman, by, 134, n. (b). 
 not pi'evented Ijy promise to accept, 135. 
 oifice, of, necessarily operates as disclaimer of estate, 136. 
 time for, 135. 
 
 DISCRETION, 
 
 powers involving, cannot be delegated, 221, 225. 
 
 but trustee may consult with and hear the arguments of 
 beneficiary before exercising, 223 — 226. 
 trustee should exercise a reasonalale, 190, 196, 226. 
 trustee, of, will not in general be interfered with, 257. 
 
 secus, where discretion limited to time and manner, 258. 
 or where discretion illusory, 258. 
 implied discretionary powers, 259. 
 See Powers op Trustee. 
 
 DIVISION 
 
 of vested shares while others remain contingent, when allowed, 
 
 163. 
 DOCUMENTS, 
 
 how far trust, may be allowed to remain in custody of trustee's 
 
 solicitor, 232. 
 trustee may generally permit co-trustee to have custody of, 
 
 ■ 232. 
 DOGS. See Animals. 
 
 2 E 2 [ 19 ]
 
 INDEX. 
 
 DOUBT, 
 
 in cases of, trustee may apply to tlie court, 330. 
 
 DOUBTFUL EQUITY, 
 
 notice of, does not bind a purchaser, 392. 
 
 DUTIES OF TRUSTEES, 
 
 acceptance of trust, on, 154 ei seq. 
 
 See Acceptance. 
 accounts, jnust produce on request of beneficiary, 253 — 255. 
 
 See Accounts. 
 beneficiary, as to paying to the right, 217 — 220. 
 
 See Mistake. 
 care, as to exercise of reasonable, 188 — 199. 
 
 See Negligence. 
 corpus and income, as to, pending conversion of property whicli 
 ought to be sold, 170 — 178. 
 See Tenant for Life and Remainderman. 
 
 as to payment of costs, charges, and expenses out of, respec- 
 tively, 178—188. 
 See Tenant for Life and Remainderman. 
 delegation of, generally unlawful, 220 — 233. 
 
 See Delegation of Trust. 
 gratuitous nature of, 240 — 243. 
 
 See Remuneration. 
 impartial, trustee must be between lieneficiaries, 160 — 165. 
 
 See Tenant for Life and Remainderman. 
 income, as to application of, pending conversion of property 
 which ought to be converted, 170 — 178. 
 See Tenant for Life and Re.mainderman. 
 investment of trust funds as to, 200 — 217. 
 
 See Investment of Trust Funds. 
 joint, and generally incapable of being performed by one or 
 more only, 234 — 237. 
 See Joint Nature of Trustee's Duties. 
 observance of express directions contained in the settlement, 
 necessity of, 156 — 159. 
 See Settlement. 
 outgoings, as to what are payable out of corpus and what out 
 of income, 178 — 188. 
 See Tenant for Life and Remainderman. 
 profit, trustee must not make a, out of trust property, 243—252. 
 
 Sec Profit. 
 repairs, as to, 179, 184, 185. 
 
 Sec Rki'airs of Trust Property. 
 reversionary jjroperty, should generallj' sell, 165 — 178. 
 
 See liHVKRSION. 
 wasting jiroperty, sluadd generally sell, 165 — 179. 
 Sec Wasting Property. 
 
 E. 
 
 1':.\|{MARK. Sn: Following Tuust I'hopkrty. 
 
 [ 20]
 
 INDEX. 
 
 ELECT, 
 
 cestuis que trust may, to adopt breach of trust, 351, 352. 
 lierson cannot, to take his share of real estate directed to be sold, 
 unless the other cestuis que trust concur, 278. 
 may, to take money bequeathed upon trust to purchase 
 an annuity for him, 277. 
 can elect, even though forbidden to sell or alienate 
 annuity, 277. 
 
 EMPLOY, 
 
 direction to, a particular person, and to pay him a salary out of 
 trust fund, does not make him a cestui que trust, 26. 
 
 ENJOYMENT, 
 
 attempt to fetter generally futile, 48, 276, 28L 
 
 ENTAIL, 
 
 married woman debarred from anticipation may bar, 282. 
 
 EQUITABLE ESTATE, 
 definition of, 6. 
 
 may be made the subject of a trust, 7. 
 postponed to legal estate where latter subsequently acquired for 
 
 valuable consideration, and without notice, 391 et seq. 
 where no legal estate in either claimant, they rank according to 
 
 date, 391, 398. 
 
 EQUITABLE MORTGAGE, 
 
 is subject to all prior equities, 391, 398 et seq. 
 mortgagor a constructive trustee, 129. 
 trustee should not invest on, 212. 
 
 EQUITIES, 
 
 trustee should not invest trust money on, 212. 
 where there are any, the legal owner is a constructive trustee 
 pro tanto unless he is a purchaser without notice, 128. 
 
 EQUITY TO A SETTLEMENT, 261, 333. 
 
 ERROR, 
 
 as to person equitably entitled, trustee liable for, 217. 
 of judgment, trustee not liable for, 196. 
 
 ESTATE OF TRUSTEE, 139—153. 
 
 (1) Cases in which trustee takes any estate, 139— 153. 
 
 convey, trust to, vests legal estate in trustees, 142. 
 copyholds or leaseholds, trustees always take legal estate 
 
 unless outstanding, 139 et seq. 
 freeholds, prima facie trustees take no estate where trust 
 is a siinple trust unless given to their " use," 139 
 
 et seq. 
 aliter where the trust is a special trust, 139 et seq. 
 charge of debts did not vest the legal estate, 141. 
 aliter if the trustees had to raise and pay them, 
 
 141. 
 
 [21 ]
 
 INDEX. 
 
 ESTATE OF TRUSTEE— co«<Mi»ef?. 
 
 (1) Cases in wliicli trustee takes any estate — continued. 
 
 freeholds, etc. — continued. 
 
 control or discretion given to trustees, gives them 
 
 legal estate, 141. 
 direction to pay or permit beneficiary to receive 
 
 gross rents aliter, 140. 
 direction to pay rents vests estate in trustees, 140. 
 direction to permit beneficiary to receive net rents 
 lias same effect, 140. 
 freeholds and copyholds in one trust, 142. 
 implied gift to trustees where no express gift to them, 141, 
 power of sale, vests the legal estate, 142. n. (/). 
 
 special trust, in, trustees always take legal estate, 137 et seq. 
 surrounding circumstances may vest the legal estate in 
 
 trustees, 141, n. (/). 
 use, devise to, of trustees gives them the legal estate, 142. 
 
 (2) The quality of estate taken Ijy the trustee, 229 et seq. 
 
 clear intention to vest fee in trustees, 147. 
 devise to their use, 147. 
 
 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, 147. 
 aliter, where they are to stand seised for such 
 person as A. shall appoint with a direct devise 
 to C. in default of aj^pointment, 147, 148. 
 trust to convey to A. gives trustees the fee, 148. 
 deed construed strictly and will liberally, 143 et seq. 
 
 but deeds not construed strictly where it would 
 
 involve a contradiction, 143, 145. 
 grant by, to trustee and his heirs passes the fee 
 simple even where a less estate would suffice, 144. 
 devise to trustees prima facie passes the fee simple, 143. 
 but not where the trust merely requires an estate 
 
 piir autre vie, 144 — 146. 
 nor where will dated before Wills Act, 143. 
 unless there is a clear intention to vest it, 147. 
 implied devise by direction to executors to pay I'ents to 
 
 separate use of married woman, 146. 
 indefinite terms and determinable fees abolished by Wills 
 
 Act, 144, n. (0- 
 larger estate than necessary not implied in order to pre- 
 vent tlie operation of rule in SheUc)i\^ Case or to obviate 
 the failure of a contingent remainder, 146 et seq. 
 separate use of mairied woman, trust for, only gives 
 
 trustees an estate during lier life, 146. 
 trusts requiring the fee iiu]>liedly give them the fee, 146. 
 indefinite trusts in point of duration, 149. 
 recurring trusts, 148. 
 secns, Ijefore Wills Act, 147. 
 to convey, 148. 
 
 muiiilain infants, 147. 
 mortgage, 147. 
 jiay debts, 147. 
 
 [ 22]
 
 INDEX. 
 
 ESTATE OF TRV&TEE— continued. 
 
 (2) Tlie quality of estate taken by the trustee — continued. 
 
 trusts requiring fee impliedly give them fee — continued. 
 to sell, 147. 
 
 trust to "stanfl seised" for such persons as A. shall 
 appoint, 148. 
 
 (3) devolption of. See Devolution. 
 
 (4) devise of. Sec Death op Trustee (3). 
 
 (5) incidents of, at law, 150 et seq. 
 
 admitted to copyholds, 151. 
 curtesy and dower, 151. 
 entitled to custody of deeds, 151. 
 liable to be rated, 151. 
 
 creditors of trust business, 151. 
 may bring actions, 150 et seq. 
 not entitled to vote at elections, 151. 
 proving in bankruptcies, 151. 
 
 (6) on failure of cestui que trust, 152, 153. 
 
 formerly trustees took realty absolutely, 152, 153. 
 
 aliter, if beneficiary devised the i^roperty to other 
 trustees upon void trusts, 153. 
 old law applied to constructive trustees, 153. 
 under new law the Crown takes absolutely, 153. 
 
 ESTATE TAIL. See Barring. 
 
 EVIDENCE, 
 
 when parol, admissible to prove an express trust, 52 et seq. 
 when parol evidence admissible to prove or disprove a lesulting 
 trust, 104, 107, 108. See Resulting Trust. 
 
 EXECUTED TRUSTS, 
 
 construed strictly, 94 — 100. 
 definition of, 94. 
 
 enforced, even although voluntary. See Voluntary Trust. 
 executed trust for A. for life, with remainder to his heirs, jjnm« 
 facie gives A. the fee under the I'ule in Slulleifs Case, 95 et seq. 
 instances of, 95 et seq. 
 otherwise if trust merely executory, 96. 
 
 EXECUTOR, 
 
 right of, to prefer creditors before decree, 273. 
 court cannot apjjoint person to perform duties of, unless 
 executorship ended and executor has become a trustee, 305. 
 
 EXECUTORY TRUST, 
 
 attempt to create a perpetuity will be construed so as to effect 
 
 as far as possible testator's intentions, 99. 
 construed liberally, 94 — 100. 
 definition of an, 94. 
 distinction between construction of executory trust created by 
 
 will and one created by marriage articles, 97, 98. 
 marriage articles, 96. 
 
 construed strictly where parties understood the terms they 
 
 used, 97. 
 " heirs," how construed in, 96. 
 " issue," how construed in, 97. 
 
 [23]
 
 INDEX. 
 
 EXECUTORY TRV&T— continued. 
 
 only enforced if based on value. See Voluntary Trusts; 
 
 Volunteer. 
 powers implied in executory trusts, 97. 
 will be construed liberally, even where executed trust in same 
 
 instrument " to same rises " must be construed strictlv, 99. 
 wills, 97 et seq. 
 
 cases where strict construction would make trust illegal, 99. 
 direction to settle on A. for life without impeachment of 
 waste negatives Shelleifs Ca$e, 98. 
 so does exj^lanation of settlor's intention which would 
 be defeated if rule in Shelley's Case were applied, 98. 
 intention of the testator is to prevail, 97 et seq. 
 "issue," how construed, 97 et seq. 
 
 EXPECTATION, 
 
 mere words of, will not raise a trust. See Language. 
 
 EXPECTATIONS, 
 
 agreement to share, valid, 41. 
 
 EXPENSES, 
 
 direction to jiay, does not make employees cestuis que trust, 
 
 26 et seq. 
 out of what fund payable. See Tenant for Life and 
 
 Remainderman . 
 reimbursement of trustees, 320, 328. Sec Reimbursement. 
 
 EXPLANATION, words of. See Language. 
 
 EXPRESS TRUST, 
 analysis of, 12. 
 construction of, 94 — 100. 
 creation of, 14 et seq. 
 
 formalities immaterial when trust based on value, 30. 
 covenant to create suliicient, 15, 30. 
 failure to appoint trustee immaterial, 30. 
 formalities material where trust voluntary. See Voluntary 
 
 Trust. 
 language. See Language. 
 object. See Illegal Trusts. 
 validity. See Validity. 
 writing, when necessary. Sit Writing. 
 definition of, 8. 
 
 illusory, wlu-n only intended for convenience of creator of the 
 trust, 24—27. 
 
 F. 
 
 FAILURE, 
 
 ccduis (pic trust, of, irj2. 
 
 Crown now takes realty, 152. 
 takes personalty, 153. 
 
 [24]
 
 INDEX. 
 
 FAILURE — continued. 
 
 cestuis qiie trust, of — continued. 
 
 formerly, wliere trustees were trustees for other trustees, 
 
 the latter took, 153. 
 mortgage, upon failure of mortgagor's heirs, formerly took 
 
 absolutely, 153. 
 trustee formerly took realty absolutely, 152. 
 of object {e.g., marriage) with reference to which the trust was 
 created, 66, 69. 
 trust by laj^se, etc. Hee Resulting Trust. 
 trustee, of, does not affect the trust, 30. 
 
 FAIRNESS, 
 
 duty of trustees to observe, between cestui que trust, 160— 165. 
 
 FAVOUR, 
 
 trustees must not unduly, one cestuis que trust, 160 — 165. 
 See Tenant for Life and Remainderman. 
 
 FEE SIMPLE, 
 
 when the trustee takes, 143 et seq. 
 See Estate of Trustee. 
 
 FELON, 
 
 estate of, trustee does not vest in administrator, 149, n. (.s). 
 trustee, unfitness of, 304. 
 whether he may be a settlor, 61. 
 
 FEME COVERT. See Married Woman. 
 
 FIDUCIARY PERSONS, 
 
 are constructive trustees, 131, 316. 
 
 gratuitous advisers are, and cannot profit by reason of the 
 confidence reposed in them, 251. 
 
 FINES, 
 
 on renewal of leases, how payaljle, 186. 
 
 FOLLOWING TRUST PROPERTY, 
 
 (1) in the hands of the trustee, 351 et seq. 
 
 investment in unauthorised securities, the latter became 
 
 subject to the trust, 352. 
 money produced by wrongful sale of trust chattels, 352. 
 purchase of land not authorised by trust, 353. 
 
 trustees may sell again if any of the cestuis que trusts 
 join, 353. 
 trust property mixed with trustees' private property, 
 
 351, 853, et seq. 
 cestuis que trusts have a charge on the entire property 
 
 if their portion can be traced, 352, 354, 355. 
 if the trust property cannot be traced into the mixed 
 property, cestuis que trusts have no charge, 351, 
 
 353, 355. 
 trust money paid by trustee into his bank, bene- 
 ficiaries have lien on his credit balance, 354. 
 trust money mixed with other money and the total 
 spent in purchase of an estate, 355. 
 
 [25]
 
 INDEX. 
 
 FOLLOWING TRUST THOTERTY— continued. 
 (2) into the hands of third ])arties, 390 et seq. 
 
 if legal estate outstanding the priorities rank according 
 
 to time of acquisition, 391. 
 if neither party has legal estate, they take in order of 
 date, 391, 399. 
 notice of doulotful equity, 392. 
 purchaser with notice from purchaser without, 398. 
 what constitutes notice, 393 et seq. 
 actual notice, 393 et seq. 
 constructive notice, 394. 
 if third party a volunteer, or where property is merely 
 equitable, or a chose in action, notice not neces- 
 sary, 397. 
 secus, if chose in action is negotiable, 399. 
 if third party has no notice of tiust, and was a purchaser 
 for value, the priorities of him and beneficiaries are 
 l^rimarily determined by the question of who has legal 
 estate, 390 et seq. 
 if third party has notice of trust, he is invariably post- 
 
 13oned to the beneficiaries, 390. 
 paj'ment by trustee out of one trust j^roperty of defal- 
 cations on another trust property, 397. 
 purchaser without notice, when may protect himself by 
 
 subsequently getting in outstanding legal estate, 400. 
 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, 
 
 397. 
 "FORECLOSED SECURITY, 
 
 profit on sale of, is capital and not income, 162. 
 
 FOREIGN LAND, 
 
 how far capable of being settled by way of trust, 76. 
 
 FOREIGN LAW, 
 
 trustee not liable for ignorance of, causing disability in cestui 
 que trust, 219. 
 
 FORFEITURE, 
 
 condition of, on beneficiary commencing litigation should be 
 enforced by trustee, 193, n. (s). 
 
 FORGED AUTHORITY, 
 
 trustee lialile if he ])ays money under, to wrong person, 217. 
 so also if lie i)ays on the faith of a forged marriage certifi- 
 cate, 218. 
 
 FOR.MALITIES, 
 
 immaterial where trust based on value, 30 et seq. 
 material wlieie trust voluntary, 27 et seq. 
 See Voluntary 'I'iiust. 
 
 FRAUD, 
 
 (tonvertB a wrongdoci- into a trustee, 133. 
 Hcttlor, of, 109—112. 
 See Rehultino Trust. 
 
 I 26]
 
 INDEX. 
 
 FRAUD — continued. 
 
 trustee's solicitor or agent, of, whether trustee liable for, 288 
 
 et seq. See Delegation. 
 whereby a settlor is induced not to make a will or not to comply 
 with Statute of Frauds, 56, 58, 133, n. (d). 
 by one of two joint legatees, 57. 
 whereby a settlor is induced to create a trust, 66, 70. 
 
 FRAUDS, STATUTE OF. See Writing. 
 
 FRAUDULENT, 
 
 breach of trust, a crime, 358. 
 
 intention of settlor does not estop him claiming a resulting 
 trust, 109—112. 
 
 FUTURE PROPERTY, 
 
 assignment of, is nothing more than a covenant to assign if and 
 
 when it comes into existence, 85, n. («). 
 assignment of, is void by reason of bankruptcy before proj^erty 
 
 comes into existence, 85, n. (o). 
 
 G. 
 
 GRATUITOUSLY, 
 
 duty of trustee to act, 240 et seq. 
 exceptions to general rule, 240. 
 
 in case of certain constructive trusts, 240. 
 
 where settlement or court authorises remuneration, 240. 
 trustee has stipulated for it, 240. 
 
 OAINER 
 
 by breach of trust must jjro tanto indemnify the trustee, 374. 
 
 GENERAL ADMINISTRATION, 334 et seq. 
 See Administration. 
 
 GIFT, 
 
 imperfect voluntary, is not equivalent to a declaration of trust, 
 voluntary, when it raises a resulting trust, 113 et seq. 36. 
 
 See Resulting Trust. 
 
 GROUND RENTS, 
 
 freehold, are real estate, and trustees may invest on mortgage 
 of them, 202, n. (y). 
 
 GUARDIAN, 
 
 undue influence of, 72. 
 
 H. 
 
 HAZARDOUS SECURITIES, 
 
 duty of new trustee to realize, 154. And see Investment, 
 
 HORSES. See Animals. 
 
 HOUSE, 
 
 trust to keep a, shut wp, is void, 65. 
 
 [27]
 
 INDEX. 
 
 HOTFE V. LOED DARTMOUTH, 
 
 application of income under, pending conversion, 170 — 178. 
 rule in, 165 — 178. See Tex ant for Life and Remainderman. 
 
 HUSBAXD, 
 
 imperfect gift by, to wife, 38. 
 
 is not a proper person to be appointed a trustee, 307. 
 
 IDENTITY OF CESTUI QUE TRUST, 
 
 trustee is responsible for mistake in, liowever careful lie may 
 have been, 217 — 220. 
 
 IGNORANT TRUSTEE 
 
 as responsible for want of ordinary care and prudence as a more 
 educated one would be, 226. 
 
 ILLEGAL TRUST, 4.3—58. 
 
 And see Perpetuities ; Thellussox Act ; Bankruptcy ; 
 Anticipation ; Illegitimate Children ; Resulting 
 Trusts ; Capricious Trust ; Validity. 
 void, but does not vitiate other trusts in the same settlement 
 unconnected with it, 43 et seq. 
 
 ILLEGITIMATE CHILDREN, 
 
 trusts by deed or will fur another's future, are illegal, 49. 
 for settlor's own future, are illegal, 49. 
 ■will for settlor's own future, are valid, 49. 
 
 ILLUSORY TRUSTS, 43 et seq. 
 
 direction to deal with property in a particidar way may only be 
 
 for benefit or convenience of person giving the direction, 24. 
 direction to emjjloy a particular person gives that person no 
 
 right to insist on being employed, 26. 
 direction to pay costs, charges, and expenses, gives the persons 
 to whom they are to be paid no rights as against the j^roperty, 
 26, and see n. (a). 
 direction to pay creditors generally, of the party giving the 
 direction, 24. 
 instances in wliich the creditors may acquire rights, 25. 
 trust to pay creditors after settlor's death makes them 
 beneficiaries, 25, n. (ry). 
 grant of i)rize numey to a Government official for distribution, 
 does not make the soldiers among whom it is distribut<able 
 cestuis que trusts, 26. 
 
 IMMORAL TRUSTS. See Illegitimate Children. 
 
 IMPARTIAL, 
 
 trustee must be, 160—165. 
 
 [28]
 
 INDEX. 
 
 IMPERFECT GIFT, 29, 36. See Voluntary Trust. 
 at common law, 37, n. (I). 
 by deliveiy of scrip, 36. 
 
 cheque, 36. 
 memorandum of intention to give a debenture bond, 36. 
 in favour of wife, 38. 
 not construed as a declaration of trust, 29, 36, and 36, n. (i). 
 
 IMPLIED TRUSTS, 12. 
 
 IMPOUNDING INTERESTS OF BENEFICIARIES, 
 
 (1) at suit of other beneficiaries — 
 
 assigns of beneficiary equally liable with himself, 387. 
 breach of trust, to which beneficiary was privy, 386. 
 debt to estate, to make good, 383, 387. 
 
 even where statute barred, 388. 
 derivative shares, right applies against, 387. 
 innocent overpayment to beneficiarj^ how far rule aj^plies 
 
 to, 388. 
 legal beneficial interests, rule inapjjlicable to, 389. 
 married woman restrained from anticipation, whether 
 
 rule applies to, 389. 
 
 (2) at suit of trustee to indemnify him against claims for breach 
 
 of trust, 375. 
 beneficiary who is also trustee generally bound to indem- 
 nify co-trustee to extent of his beneficial interest, 376. 
 beneficiary who has instigated breach or consented in 
 writing to it may be liable to have his interest 
 impounded, 375, 379. 
 guilty knowledge essential, 379. 
 
 especially in case of married woman, whether 
 
 restrained from anticipation or not, 380. 
 
 right does not extend to make good beneficial interest of 
 
 trustee in the fund, 379. 
 
 nor to cases where the guilty beneficiary has settled 
 
 proceeds of the breach by a subsidiary settlement, 
 
 381. 
 
 IMPROVEMENTS, 
 
 necessary for enabling settled property to be let, 186, n. (o). 
 what, a trustee may make, 261. 
 
 INCIDENCE OF EXPENSES, 178—188. 
 
 See Tenant for Life and Remainderman. 
 
 INCOME, 
 
 life tenant not always entitled to the whole, 170 — 178. 
 
 See Tenant for Life and Remainderman. 
 trustee should not favour tenant for life by getting a larger 
 
 income at a risk to the capital, 160, 210. 
 what outgoings chargeable to, 178 — 188. 
 
 See Tenant for Life and Remainderman. 
 
 INCUMBRANCE, 
 
 discharge of, by tenant for life creates a constructive trust in his 
 favour, 130. 
 
 [ 29]
 
 INDEX. 
 
 INCUMBRANCE— con^wnfcf/. 
 
 liow borne as between tenant for life and remaindermen, 179. 
 trustee jiaying to beneficiary who has created an, on his interest, 
 
 liable to incumlirancer if he has notice, or if he has omitted 
 
 to search trust papers for notice, 156. 
 trustees not bound to answer inquiries as to, created by any of 
 
 their beneficiaries, 254. 
 
 INDEMNITY, 
 
 beneficiary by, to trustee for disbursements and costs, 320, 
 cases in which one trustee who is mainly to blame may have to 
 
 give, to co-trustees, .375 — 377. 
 gainer by or instigator of breach of trust must give, to trustee, 
 
 375—379. 
 INFANT 
 
 cannot generally be a settlor, 59. 
 except by leave of court, 59. 
 disability of, to assent to breach of trust, 372. 
 
 See Breach of Trust. 
 may be a trustee, 306. 
 
 but cannot execute discretionary trust, 30(). 
 repair of property belonging to, 185. 
 where cestui que trust is an, the trustee may pay his share into 
 
 court, 332. 
 where cestui que trust is an, the trustee should accumulate his 
 income, 344. 
 
 INFLUENCE, UNDUE Bee Validity. 
 
 trustees must not use, against the interest of a cestui que trust, 
 
 161. 
 INFORMATION, 
 
 expensive, trustees only bound to furnish, on l)eing indemnified 
 
 against costs, 255. 
 what, trustees are bound to afi'ord to their beneficiaries, 254. 
 
 trustees are bound to give to parties dealing with their 
 beneficiaries, 255. 
 
 INJUNCTION 
 
 to restrain breach of trust, 350. 
 
 INSTIGATOR OF BREACH OF TRUST, 
 liability of, to indemnify trustees, 375, 379. 
 must have knoMii tliat the act was a breach, 379. 
 
 jiaiticulurly in tlu; case of a married woman, 380. 
 must recou]) loss to ln-iicliciaries, 382 — 400. 
 bciiciiciarv, ti'ust fund lent to, 383. 
 foip^'.T, 384. 
 retaini-r of lienclicial interest to make loss good, .386. 
 
 ajtplies to derivative as well as original shares, 387. 
 solicitor knowingly assisting in getting fund in court juiid 
 to wrnug ])ers()n, 385. 
 T(!ceiving and retaining trust nutuey, 385. 
 third ])arty with notice, 383. 
 truslccH tlr soti. tort, 384. 
 no lialiiiily to make good the; trustees' beneficial interest, 379. 
 
 [30]
 
 INDEX. 
 
 INSUFFICIENT SECURITY, 
 
 how far it is the duty of trustees to call in, 191. 
 rights in relation to, of tenant for life and remainderman 
 respectively, 172. 
 
 INSURANCE, 
 
 assignable at law as well as in equity, 40, n. (::). 
 
 duty of trustee to give notice of assignment to himself to the 
 
 insurance company, 193, n. (t). 
 premiums for life, payable out of income, 182. 
 trustee can deduct premiums for fire, from income, 198. 
 not bound to effect a tire, 198. 
 but may do so, 198. 
 
 INTEREST, 
 
 when a trustee is chargeable with. See Breach of Trust. 
 
 INVENTORY, 
 
 trustee of chattels should make and keep, ] 98. 
 
 INVEST, 
 
 trustees should, trust funds within six months, 198, n. (y). 
 
 INVESTMENT OF TRUST FUNDS, 200—217. 
 
 (1) Cases in which the settlement expressly prescribes the 
 investments, 200 et seq. 
 authorised investments, investments in, may be a breach 
 of trust if imprudent having regard to the state of such 
 investments, 209 et seq. 
 care still required from trustee in the selection of invest- 
 ments from the class authorised, 201, 209 et seq. 
 degree of care required, 210. 
 construed strictly, 206. 
 
 direction to lend to a stated firm does not autho- 
 rise loan after a change in the members of the 
 firm, 207. 
 " foreign government securities," 207. 
 " invest at discretion," 207. 
 personal security, meaning of, 208. 
 " place on security," 207. 
 
 " place out at interest at their discretion," 207. 
 " retain shares " in a jiarticular comj^any, direction 
 to, does not authorise purchase of additional 
 shares, 207. 
 securities of a " public company," meaning of, 208. 
 conversion of a settlor's business into a joint stock com- 
 pany, court no jurisdiction to authorise trustees to 
 accept price in shares and debentures. See Re Morrison, . 
 Morrison v. Morrison, [1901] 1 Ch. 701. 
 cottage propertj', mortgages of, 214, n. (d). 
 debtor, direction to leave money in hands of, for debtor's 
 
 convenience may be safely obeyed, 209. 
 imperative direction to invest on imprudent securities 
 must be followed, 209. 
 
 [31 ]
 
 INDEX. 
 
 INVESTMENT OF TRUST FJI^DS— continued. 
 
 (1) Ca^es in which the settlement expressly prescribes the 
 
 investments — continued. 
 increase of income, safe security should not be sold for 
 purpose of investing in a less safe authorised 
 security merely to procure, 210. 
 unless under very special circumstances, 211. 
 mortgage of real estate, means a reasonable first legal 
 mortgage, 209 et seq. 
 accommodation of mortgagor, made for, is a breach 
 
 of trust, 212. 
 contributory mortgage inadmissible, 213. 
 covenant to surrender copvholds, by wav of, inadmis- 
 sible, 212. 
 equitable mortgage inadmissible, 212. 
 first legal mortgage, is confined to, 212. 
 long leaseholds may be regarded as real estate in 
 
 certain cases, 205, 213. 
 proviso that trustees will not call in debt for a term 
 
 of years inadmissible, 217. 
 speculative propertv should never be the subject of 
 a trust mortgage, 202, 209, 216. 
 brickfield, 216.' 
 china clay field, 216. 
 manufactory, 216. 
 sub-mortgage allowed, 213. 
 title, how far trustee responsible for defects in, of 
 
 mortgagor, 2\6 et seq. 
 value of proposed mortgage security, how to be 
 ascertained, 213. 
 former law, 213, 214. 
 new law .«ince 1888... 214 et seq. 
 precautionstobeobservedasto value codified, 215. 
 only relate to value and not to prudence of 
 investing on a mortgage of speculative 
 property, 216. 
 personal security generally improper, 208. 
 
 meaning of, 208. 
 shares of trading companies inadmissible in absence of 
 
 express power, 209. 
 trade speculations, trustees must not invest in, unless 
 
 settlement explicitly authorises them, 209. 
 varying without due cause, 212, n. (;<). 
 
 (2) Cases in which the settlement is silent as to — 
 
 care nevertheless required in selecting statutory invest- 
 ments, 210. 
 Colonial stock, 202. 
 Isle of Man stock, 205. 
 list of investments authorised by statute, 201 ct seq. 
 
 even as to these trustees must not accejit certificates 
 
 to bearer, 201. 
 nor invest in such of them as settlement expressly 
 
 forbids, 2(0, 202. 
 retrospective, is, 205. 
 
 I 32 ]
 
 INDEX. 
 
 INVESTMENT OF TRUST FVi^DS—contiimed. 
 
 (2) Cases in which the settlement is silent as to — continued. 
 local loans debenture stock, 205. 
 
 mortgages or bonds of company includes debenture stock ; 
 price above redemption value, 204. 205, 
 
 real securities includes certain long leaseholds, 205. 
 
 also charges under Improvement of Land Act, 205. 
 residuary estate settled on trust, consisting of statutory 
 securities, need not be converted and re-invested, 201. 
 Settled Land Acts, investment of capital moneys arising 
 
 under, 206. 
 trustee must exercise a reasonable discretion even with 
 regard to statutory investments, 210. 
 
 ISSUE, 
 
 meaning of, in marriage articles, 97 n. (n). 
 
 J. 
 
 JOINT NATURE OF TRUSTEES' DUTIES, 234 et seq. 
 " acting trustee " not recognised by our courts, 234. 
 all must act unanimously in general, 234. 
 
 aliter where court or settlement directs to the contrary, 234. 
 or as to receipt of income, 234. 
 
 where a trustee may lawfully delegate. See Dele- 
 gation. 
 cheques, all should sign, 237. 
 custody of trust securities, 237. 
 income, generally permissible to allow one, to receive, 235. 
 
 but not to retain, 237. 
 investments must be made in joint names, 235. 
 majority of trustees cannot bind minority, 234. 
 aliter in case of charitable trusts, 235 n. (n). 
 
 or trustees of a manor in relation to enfranchisements, 
 
 235 n. (/(). 
 mortgagees, all must be, where trust money advanced, 238. 
 
 one cannot, therefore, be mortgagor, 238. 
 receipts, all must join in, 235. 
 
 effect of joining in receipt for sake of conformity, 236. 
 
 JOINT TENANTS, 
 
 are constructive trustees for one another, 127. 
 trustees are, 284. 
 
 JOURNEYS, 
 
 trustee may recover expenses of necessary. See Reimbukse- 
 
 MENT. 
 
 JUDGMENT, 
 
 trustee not liable for mere error of, 196. 
 
 but must (however ignorant or stupid) act up to the ordinary 
 standard of intelligence, 226. 
 
 JUDICIAL DIRECTION, 
 
 right of trustee to, on originating summons, 330 et seq. 
 
 2 F [ 33 ]
 
 INDEX. 
 
 JUDICIAL TRUSTEE, 
 
 accounts of, to be audited every year, 339. 
 appointment of, by court, 338 — 340. 
 
 at whose request, 338. 
 
 discretionary, is, 339. 
 inquiry may be ordered as to conduct of, 339. 
 officer of the court is, 339. 
 remuneration of, 338. 
 rules of court in relation to, 340. 
 who appointed, 338. 
 
 JU8 TERTII, 
 
 trustees must not set up, 238. 
 
 may appeal to court to relieve them from trust, 238, 239. 
 must not aid third parties who claim the estate, 238. 
 opinion of Lord Justice Bruce, contra, 239. 
 
 L. 
 
 LACHES. And sec Limitations, Statute of. 
 cestui qiLe trust, of, when a bar to relief, 371. 
 great laches will bar cestui cjue trust even in an express trnst, 
 
 371. 
 
 does not apply where the circumstances afford no ground 
 
 for implication of acquiescence, notwithstanding 
 
 long lapse of time, 371. 
 
 nor where beneficiary ignorant of his rights, 373 et seq. 
 
 the doctrine proceeds on imjilied intention, 371. 
 
 immaterial in the case of a settlement void under 13Eliz. c. 5... 
 
 75 n. (e). 
 long dormant grievance will not be entertained if it would cause 
 general inconvenience, 371. 
 e.g., a purchase by a trustee after many years, 371. 
 or an account after a long period, 372. 
 
 LANGUAGE, 
 
 agreement to create a trust, creates one if based on value, 16, 20. 
 condition, words of, may create a trust, 14, n. (c). 
 covenant to create a trust, 16. 
 direct and unambiguous expressions, 14, 16, 18. 
 "direct him to apidy," 18. 
 " direct that my real estate be sold,'" 18, 19. 
 " ujKin trust," ie. 
 evincing an intention to create a trust, 14 ct seq. 
 insufficient to raise an exju'ess trust may yet be sufficient to 
 hliow that donee was not intended to take beneficially, and so 
 raise a resulting trust, 103, 104. 
 power of selection without any gift over in default of exercise 
 of ]K)\ver may create a trust in favour of the oljjects of 
 tlie i)0\ver, 15, 16, 20—22. 
 aliler, wliere mere power to a])point as distinguished from 
 . power to select, 21, 22. 
 
 [34]
 
 INDEX. 
 
 LA'SGXJ AGE— continued. 
 
 precatory words sometimes create trusts, if on true construction 
 of the instrument they were meant to be imperative, 15 — 
 
 18, 22. 
 strong modern disinclination against construing precatory 
 
 words as imperative, 18, 23. 
 uncertainty as to subject or object fatal to trust depending 
 on precatory words, 23. 
 sometimes illusory. See Illusory Trusts. 
 trustee, non-appointment or failure of, immaterial if language 
 shows intention to create a trust, 19. 
 
 LEASE, 
 
 renewal of, trustee cannot obtain, for his own benefit, 245. 
 
 even where landlord has refused to renew to the trust, 245. 
 fines payable on, how raised, 186. 
 tenant for life is bound to olitain, 357. 
 trustee may grant a reasonable, 260. 
 
 not grant a, to himself, 247. 
 
 LEGACY, 
 
 agreement to share an expected, 41. 
 may be assigned on trust by legatee, 33. 
 
 LEGAL ESTATE, 
 
 definition of, 6. 
 
 importance of, 7, 391. 
 
 of beneficiary under settlement, cannot be impounded or 
 
 charged to make good breach of trust, 263. 
 sometimes implied, 141, n. (/). 
 trustee cannot interfere with, of remainderman, 263. 
 when vested in trustee, 139 et seq. 
 
 See Estate op Trustee. 
 
 LEGALITY 
 
 of express object of the trust, 43 — 58. 
 Aiid see Perpetuities ; Thellusson Act ; Bankruptcy ; 
 Illegitimate Children. 
 
 LIEN, 
 
 banker, of, when he has no notice of trust, 393. 
 
 cestui que trust entitled to a, on the share of a co-cestui que trust 
 
 guilty of connivance in a breach of trust, 382, 386 — 389. 
 in case of fraud, 132 
 raises a constructive trust, 129, 132. 
 trustee entitled to, on corpus and income iof costs, 321. 
 
 See Reimbursement. 
 
 LHIITATIONS, statute of, 362 d seq. See Breach of 
 Trust ; Laches. 
 
 LIS PENDENS, 
 
 for general administration, suspends trustee's powers, 272 et seq. 
 but not until judgment given or receiver appointed ur 
 injunction granted, 273. 
 
 2 F 2 [ 35 ]
 
 INDEX. 
 
 LITIGATION, 
 
 trustee should enforce forfeiture clause against beneficiary who 
 commences, 193, n. (s). 
 
 LOSS OF TRUST PROPERTY, 
 
 trustee not liable for, by theft, unless negligent, 197. 
 aliter in case of forgery oi^fraud, 197. 
 
 LUNATIC SETTLOR, 
 
 how far bound by settlement, 61. 
 
 LUNATIC TRUSTEE, 
 
 appointment of new trustee in his place, 294 et seq. 
 vesting trust property in new trustee appointed in place of, 316 
 
 et seq. 
 
 M. 
 
 ALA-INTENANCE, 
 
 of infants, 262, 269. 
 
 allowed even where father is a wealthy man, 262 n. (/). 
 power only applicable in cases where infant woirld. on 
 attaining twenty-one, be entitled to intermediate income, 
 
 270 et seq. 
 present statutory power enables allowance not only for 
 maintenance and education, but also for benefit of infant, 
 sometimes allowed out of capital, 262. 269. 
 
 trustee may generally grant, 262. 
 trust to a]i])ly income for another's gives him the income abso- 
 lutely, 276 et seq. 
 
 MAJORITY 
 
 of private trustees cannot bind minority, 234. 
 
 aliter in the case of charitable trusts, 235 n. (())• 
 
 MALA FIDES, 
 
 one retiring for purpose of enabling the other to commit a breach 
 
 of trust, 199. 
 trustees liable for, 199. 
 
 MARRIAGE, 
 
 consideration of, who are privy to, 29, 31. 
 general restraint of, illegal, 50. 
 
 second, good, 50. 
 ]jartial restraint of, good, 50. 
 tru-sta " until " are good, 5L 
 
 MAP.R lAGE ARTICLES, 
 
 agn-cniL-nt in to ."^ettle all after-aci|uired pinp^rty, bin(U iifu 
 
 policies sul)M-(jMiMitIy allfctcd, 2(\ 
 construction of, very liberal, 96 et seq. 
 create tiu-sts, 20. 
 
 [ 36 ]
 
 INDEX. 
 
 MARRIAGE SETTLEMENT, 
 
 cannot be cancelled tor misrepresentation if marriage takes 
 
 place, 74. 
 on second marriage of widow, trusts for issue of first, are 
 
 voluntary, 31. 
 remainders, when voluntary, 28, 30, 31, 38. 
 revocable if the marriage is broken off, 66, 69, 107. 
 
 MARRIED WOMAN, 
 
 cannot generally concur in or release a breach of trust, 372. 
 
 aliter, if property settled to her separate use without 
 restraint, 372. 
 eflfect of gift to, for separate use, 19. 
 
 trust in favour of, 63. 
 how far competent to be a settlor, 60. 
 undesirable as a trustee, 308. 
 instigating, requesting, or in writing consenting, to breach of 
 trust may have her interest impounded to indemnify 
 trustee, even although she be restrained from anticijia- 
 tion, 375, 380, 383, 389. 
 but mere passive concurrence will not entitle trustee to be 
 indemnified by her, 380. 
 restraint on alienation by a, 48, 281. 
 
 implied in some cases from precatory words, 22, n. (k). 
 prevents release by her of breach of trust, 372. 
 
 but if she has instigated breach her interest may be 
 impounded, 375, 380, 383, 389. 
 separate use of, gift to the, 19. 
 trustees may pay into court iu order to raise her equity, 261, 333. 
 
 MISTAKE, 
 
 clerical, in engrossing trust deed, 66, n. (o). 
 construction of settlement, as to, how far trustee now liable, 
 
 218, 361. 
 fraud or forgery, wrong payment by reason of another's, 217, 218. 
 
 the wrongdoer liable to make good the loss, 384. 
 in identity of beneficiary, 217 et seq. 
 judgment of, trustee not liable for, 196. 
 
 liability of trustee for, if he pays trust money to wrong person, 
 
 217—220. 
 formerly liable even where mistake the result of another's 
 
 fraud or forgery, 217, 218. 
 query whether now liable when mistake made honestly and 
 reasonably, 217, 218, 361. 
 payment to original beneficiary, who has parted with his 
 interest, trustee not liable if he had no notice, 217, 219. 
 aliter where the first documents contain notices of aliena- 
 tions or mortgages, 220. 
 to wrong person, trustee generally liable to pay over again, 
 
 217—219. 
 power of attorney, as to continued validity of, 219. 
 
 new law safeguarding trustees paying under, 219. 
 recovery by trustee of money paid by, 388. 
 settlor Ijy, a ground for rectifying or setting aside trust, 66, 69. 
 status, as to, of foreign female beneficiary, 219. 
 
 [37]
 
 INDEX. 
 
 MIXING TRUST PROPERTY 
 
 with private property of trustee, effect of, 351, 353 — 356. 
 
 MORTGAGE, 
 
 as to propriety of allowing a testator's money invested on, to 
 
 remain so until wanted, 197 n. (k). 
 foreclosure of, by trustee, relative rights of tenant for life and 
 
 remainderman, 162, 177, 178. 
 investments on, by trustees, rules as to, 212 — 217. 
 See Investmext. 
 subsequent depreciation of, trustee not bound to realise, 
 
 191. 
 trustee should not borrow trust fund on, of his own property, 
 
 238, 249. 
 trustees should not, the estate to one of themselves, 238, 249. 
 but no objection to a trustee taking a fair mortgage from 
 one of his beneficiaries, 251. 
 voluntary assignment of debt without seci;rity is said to be 
 incomplete and invalid, 34. 
 aliter where security is a bill of sale, 34. 
 
 MORTGAGEE, 
 
 a constructive trustee, 127, 130. 
 
 in possession is constructive trustee of the rents and profits, 130. 
 of all the beneficial interests cannot before foreclosure or sale 
 elect to stay the trust, 279. 
 nor is he entitled to have the whole trust fund paid to him, 
 
 280. 
 
 MORTGAGOR, 
 
 trustee cannot be, in relation to trust funds, 238, 249. 
 
 MOTHER, 
 
 whether doctrine of advancement applies to, 117. 
 
 MUNICIPAL CORPORATIONS, 
 
 securities of certain, are now available as trust investments, 203. 
 as to Scottish corporations, 208, n. (s). 
 
 N. 
 
 NEGLIGENCE, 
 
 advisers of trustee, by, how far trustee liable, 225, 226. 
 agents of trustee, l)y, how far trustee lialjlc, 225, 226. 
 covenant Ijy settlor, onnssion to enforce, 193. 
 debts, in realisation of, due to trust estate, 189. 
 
 compounding, 191. 
 
 ])roviiig in dclitor's bankruptcy, 193. 
 riogree oi", which will render a trustee liable, 183, 226. 
 error of judgment, not nccessaril}-, 196, 226. 
 illiterate trustee, l)y, judged on same basis as if he were possessed 
 
 of average intelligence, 226. 
 insuHicient Hecurity, which was sulUcient at date of investment, 
 
 191. 
 insurance against fire, not ellecling, is not a breach of trust, 198. 
 
 [38]
 
 INDEX. 
 
 NEGLiaENCE— con^Miitef?. 
 
 inventory of trust chattels, omission to make, 198. 
 investments, in making, 200 — 217. 
 
 See Investment op Trust Funds. 
 in not making, 198. 
 
 And see Breach of Trust. 
 joining in sale of other property, 193. 
 judgment, error of, 196. 
 purchase, making an improvident, 196. 
 realisation of debts, as to, 190 — 192. 
 
 registering deeds, as to, where registration necessary, 193. 
 rents, allowing to fall into arrear, 192. 
 repairs of trust property, how far bound to see to, 199. 
 
 And see Repairs. 
 sale, improvident, 195. 
 
 using depreciatory conditions, 194. 
 solicitor of trustee, by, how far trustee liable, 226. 
 theft of trust property caused by trustees', 197. 
 
 NEW TRUSTEES, 
 
 abroad, in place of a trustee who has been absent, for twelve 
 months, 300, and 300 n. (b). 
 where donee of power is, 304. 
 appointed, how, 294 et seq. 
 court, by the, 294, 302. 
 
 cases in which it is proper to apply to court, 303 et seq. 
 High Court or Lunacy "Court, 294, 301, 302 et seq., 304, 
 
 n. (r). 
 no jurisdiction to re-appoint existing trustees, 305. 
 express power, under, 294, 296. 
 construction of, 296, 297. 
 
 court cannot appoint where donee willing to exercise, 
 
 294. 
 aliter where judicial trustee desirable, 295 n. (a), 
 donee of power cannot appoint himself, 296. 
 vested in tenant for life, may be exercised after aliena- 
 tion of his life estate, 297. 
 statutory power, under, 294, 298 et seq. 
 construction of, 296, u. (g). 
 
 donee of, is not the same person as donee of express 
 power, 298. 
 cannot appoint himself, 296. 
 
 where none nominated by settlement, 298, 299, 
 
 n. (y). 
 exercisable where donees of express power cannot 
 
 agree, 298, 300. 
 not imperative, 300. 
 persons nominated to exercise it, 298, n. (x). 
 
 not necessarily the persons nominated to exercise 
 the express power, 298. 
 bankrupt, in place of, 304. 
 costs of appointment of, 293, 294, n. (//). 
 
 dispute between donees of power of appointing, court will 
 appoint, 304. 
 
 [39]
 
 INDEX. 
 
 NEW TRVSTEES—contimied. 
 
 donee of power of appointing, cannot appoint himself, 296. 
 
 doubt, court can appoint in cases of, 304. 
 
 felon, in place of, 304. 
 
 infant trustee, in place of, 304. 
 
 judicial trustee, when appointed, 338 — 340. 
 
 lunatic, where power ot appointin,^ vested in, 301. 
 
 no original trustees ever appointed, 303. 
 
 number of, may be more or less than original number, 295. 
 
 but under express or statutory power there must be two at 
 
 least, 295. 
 cannot be increased (except by court), unless there is a 
 
 vacancy, 299, n. (z), 305. 
 court rarely reduces number unless administration action 
 pending or fund is alrout to be paid into court or distri- 
 buted, 295. 
 persons to be ajijjointed, principles as to choice of, 305, 306. 
 who ought not to be appointed — 
 alien, 307. 
 benetieiary, 296. 
 disability, person under, 295. 
 husband of beneficiary, 307. 
 infant, 306. 
 
 iurisdiction, person out of tlie, 307. 
 life tenant, 306. 
 
 maiden lady (query), 308, 308, n. ( p). 
 married woman, 308. 
 remainderman, 306. 
 solicitor to the trust, 307. 
 trust company, 308. 
 powers of, same as those of original trustees, 295. 
 jirocedure, on appointment by court, 304. 
 
 applications in lunacy, 301, 304, n. (r), 317. 
 vesting of propei'ty in, .309 — 318. 
 See Vesting of Trust Property in New Trustees. 
 
 NEXT-OF-KIN, 
 
 when, volunteers under a marriage settlement, 29, 31. 
 
 NOTICE, 
 
 ])nrchaser with, of trust, bound by it. See Third Parties. 
 trustees without, of the true re])resentatives of deceased cestui 
 
 (pie trust, not lial)le for paying \o wrong ones, 219. 
 what constitutes, 293 et seq. 
 
 0. 
 
 OI'I'ICE OF TRUSTEE. &<; Death of Trustee. 
 O.MISSION OF DKCI.AHi:!) TKIJST. Sec Resulting Trust. 
 ONUS 01-' I'KOOF. ,S'ec VoLuxTAiiY Trust. 
 
 [ •»'» ]
 
 I 
 
 INDEX. 
 
 ORIGINATING SUMMONS 
 
 for the judicial determination of most questions arising in the 
 construction or administration of a trust, 330. 
 contingent ([uestions, not generally decided on, 331. 
 inapplicable where sought to make trustees responsible for 
 breach of trust, or where cancellation of trust, or relief 
 against third parties is sought, 331. 
 
 OUTGOINGS. See Tenant for Life and Remainderman. 
 
 OVERPAYMENT, 
 
 beneficiary of, 388. 
 
 other beneficiaries may compel him to refund, 388. 
 
 not if the overpayment was caused by depreciation of 
 residue after the payment was made, unless the pay- 
 ment was premature, 388. 
 trustee can recoup himself out of any other interest of same 
 
 beneficiary under the settlement, 388. 
 trustee cannot generally make overpaid beneficiary refund 
 personally, 388. 
 
 P. 
 
 PARENT, 
 
 voluntary trust in favour of, prima facie voidable, 72. 
 
 PARES DELICTO. 
 doctrine of, 108. 
 
 where both parties are not in pari delicto, the more excusable 
 may be allowed to sue for relief, 109, n. (/). 
 
 PAROL EVIDENCE. See Evidence. 
 
 PARTIES TO THE CONSIDERATION, 
 
 definition of, 28. 
 
 may enforce trust whether executed or executory, 28, 30 et seq. 
 And see Volunteer. 
 
 PARTNERS 
 
 are constructive trustees, 127, n. (h). 
 mutual liens of, 132. 
 
 PAY 
 
 for public services, when alienable, 41 — 43. 
 
 PAYMENT, 
 
 into court, 331ei sej. 
 See Court. 
 cases in which it is allowable, 332 — 334. 
 constructive trustees by, 332, n. (a). 
 effect of, on trustees' powers, 274. 
 
 improper where same question can be determined by 
 originating summons, 332. 
 to wrong person, 217 — 220, 
 See Mistake. 
 
 [41 ]
 
 INDEX. 
 
 PENSIONS, 
 
 •nhen alienable, 41 — 43. 
 
 PERISHABLE PROPERTY, 
 
 income of, pending conversion, 170 — 178. 
 
 See Tenant for Life and Remainderman. 
 trustees should convert, 65 — 78. 
 
 See Wasting Property. . 
 
 PERPETUITIES, 
 
 alternative gilts, one of wliicli is void, 46, n. (/). 
 attempt to create, by executory trust, bow construed, 99. 
 illegal, 44. 
 
 remainders after a trust void under rule as to, are themselves 
 void, 43, n. (j)), 46. 
 secus, if they are alternative trusts, 46, n. (/). 
 resulting trust to settlor, 112. 
 rule against, invalidates gifts to a class where some of the class 
 
 may possibly not take vested interests within the prescribed 
 
 period, 45. 
 trust to apply income for a period beyond the rule may be 
 
 good, 45, n. (y). 
 trust to keep in repair tomljs or monuments void as creating, 
 
 unless limited in point of time, 62—64. 
 whether a trust is void under the rule against, depends on the 
 
 possible effect of the trust, and not upon its actual effect, 45. 
 
 PERSONAL SECURITY, 
 
 meaning of, 208. 
 
 POLICY OF INSURANCE. See Insurance. 
 
 POSSESSION, 
 
 how far equitable tenant for life entitled to, 282. 
 
 POSSIBILITY, 
 
 a, is capable of being settled, 40, n. (tj), 41. 
 
 POSTPONEMENT 
 
 of enjoyment until a given age, in general nugatory, 276. 
 
 POWER, 
 
 where it raises a trust, 15, 20. 
 
 POWER OF ATTORNEY, 
 
 payment under, Ijy trustees without notice of revocation, valid^ 
 
 271. 
 
 POWER OF SALE, 
 
 cannot be accelerated, 159. 
 
 may subsist after the proijerty has vested absolutely in a class 
 of beneficiaries, 278. 
 
 POWERS OF BENEFICIARIES, 275—283. See Beneficiary. 
 
 POWERS OF TRUSTEES, 
 <;oiiij)r()mis(', to, 2(57. 
 
 onus of proof as to the jiropricty of, 268. 
 
 [42 ]
 
 INDEX. 
 
 POWERS OF TRUSTEES— conizHdCfZ. 
 
 destruction of, hy payment of trust fund into court, 274. 
 express powers, 25G. 
 
 exercise of, not controlled Ijy court where exercised hond 
 fide even though court may disapprove, 257. 
 aliter where the exercise of the power is a duty cast on 
 the trustees, 258. 
 general powers, 256 et seq. 
 implied powers, 256. 
 
 to abstain from enforcing debts or obligations, 259. 
 advance infants' shares, 262. 
 
 where beneficial to their beneficiaries, 257. 
 do all such reasonable and proper acts as the court would 
 
 authorise if applied to, 256. 
 improve, in exceptional cases, 261. 
 lease for short terms, 260. 
 maintain infants, 262, 269. 
 mortgage in exceptional cases, 261. 
 
 protect trust property from direct or indirect injury, 
 
 259. 
 retain income for repairs where it is his duty to repair, 
 
 260. 
 retain shares of married women in order to enable them 
 
 to assert equity to a settlement, 261. 
 surrender or exchange trust policy where desirable, 260. 
 thin timber, 260. 
 legal remainders, must be exercised so as not to aflect, 263. 
 must be exercised fairly so as not to favour one beneficiary, 
 receipts, to give, 266. 160, 263. 
 
 sales, to conduct, 264. 
 suspension of, by administration decree, 272 etseq. 
 
 discretionary powers, will not be controlled apart from 
 
 maia fides, 273. 
 issue of writ not sufficient, 272, n. (c), 273. 
 payment of trust fund into court, effect of, 273. 
 purchaser for value without notice not aftected, 273. 
 
 unless property is land, and the action is registered as 
 a lis ■pendens, 273. 
 
 POWERS IN THE NATURE OF TRUSTS, 15, 16, 20. 
 elements of, 15, 20. 
 
 essential that it should be a power to select from, and not 
 
 merely a power to give to a class, 21, 22. 
 gift over, in default of exercise of the power fatal to claim 
 of class of appointees, 21. 
 a residuary gift, not a "gift over" for this purpose, 21. 
 
 PRECATORY TRUSTS, 15—18, 22. 
 
 PRESUMPTIONS. See Resulting Trust. 
 
 PRIEST, 
 
 undue influence of, 70. 
 
 [43]
 
 INDEX. 
 
 PRIORITIES 
 
 between several innocent claimants. See Following Trust 
 Property. 
 
 PRIVITY. See Illusory Trust. 
 
 PROBATE, 
 
 acceptance of, generally tantamount to acceptance of trust, 137. 
 refusal of, when tantamount to disclaimer of trust, 136. 
 
 PROFIT, 
 
 duty of trustee not to, by reason of his position, 243 — 252. 
 accretion to trustee's estate, belongs to the trust, 246. 
 beneficiary, where trustee is also, subject to specific charge 
 in another's favour the rule does not apply, 247. 
 purchase or lease from, hj trustee valid if fair, but onus 
 on trustee of sujjporting it, 25C». 
 commission jiaid to, must not keep, 245. 
 company of which trustee is a shareholder, vn\e 2}rimd facie 
 
 inapplicable to, 248. 
 constructive trustees, rule does not apply to all, 252. 
 indirect gains not prohibited, 246. 
 
 solicitor trustee acting for one who borrows from the 
 trustees on mortgage, 246. 
 lease, cannot to himself, 249. 
 
 cannot get renewed in liis own favour, 245. 
 
 even where lessor refuses to renew to him as 
 trustee, 245. 
 legacy to trustee attributable to his position belongs to 
 
 trust, 246. 
 mortgage, cannot accept of trust property, 249. 
 
 but may accept a fair mortgage from a beneficiary, 251. 
 })urchase trust projiertv, cannot for self or co-trustees, 243, 
 
 247—250. 
 aliter if bare trustee, 249. 
 by leave of court, 249. 
 express power, under, 244. 
 
 from tlie beneficiaries if at arm's length and 
 transaction fair, 250. 
 sale to another, with ho])e of being able subsequently 
 to repurchase for himself, 248. 
 to joint stock companv of which trustee a share- 
 holder, 248. 
 remuneration, not generally allowed, 240 — 243. 
 Sre Remunp:rati()X. 
 aliter in case of judicial trustee, 338. 
 retirement from office, in ortler to make profit out of trust, 
 
 not allowed, 245. 
 .salary not generally allowed, 240 — 243. 
 Srii JIkmunkuation. 
 aliter in case of judicial Irustee, 338. 
 HpecuJate, trustee must not with dust fund, 245. 
 
 if he does, the resulting ]>rolils (if any) behmg to 
 beneficiaries, 245. 
 sj)orting over trust estate not allowed, 246. 
 
 [ 44 1
 
 INDEX. 
 
 FB-OFIT— continued. 
 
 duty of trustee not to, by reason of liis position — continued. 
 
 subsidiary settlement, purchase by trustee of, from trustees 
 
 of principal settlement, 250. 
 trade, cannot with trust fund, 245. 
 
 trustee of trustee's marriage settlement may purchase from 
 trustee, 251. 
 realisation of investment on, belongs to capital and not to 
 
 income, 161, 162. 
 solicitor, by, made at expense of client, 241, 242, 251. 
 See Solicitor. 
 
 PEOMOTEES OF COMPANIES 
 are constructive trustees, 127. 
 
 PEOPEETY, 
 
 assignment of future, acquired, 85, n. (n). 
 
 effect of bankruptcy of assignor upon, 85. 
 subject to a trust, 39 — 41. 
 
 See Trdst Property. 
 on bankruptcy of trustee, still remains vested in him, 149 
 vesting of, in new trustees. See New Trustee. 
 what may be made the subject of a trust, 37 — 41. 
 wrongfully purchased with trust fund becomes trust property, 
 See Following Trust Property. 352. 
 
 PEOTECTION 
 
 of trust property, duty of trustees as to, 257. 
 trustees, 359—382. 
 
 PEUDENCE, DUTY OF TEUSTEE TO EXEECISE, 188—199. 
 amount of, required from a trustee, 188. 
 compromise, empowered to effect a reasonable, 191. 
 conditions imposed by settlor, should enforce against beneficiary, 
 
 193, n. (s). 
 covenants, should enforce even against settlor himself, 193. 
 custody of trust securities, duty of, in relation to, 198. 
 debts, should realise with all convenient speed, 189. 
 
 cases in which he may give time to debtor considered, 190. 
 compounding when advisable, 191. 
 
 not bound to enfoi'ce by action where under all the circum- 
 stances it would be inexjjedient in the interest of his 
 beneficiaries, 190. 
 security for, may accept, 192. 
 dej)reciatory conditions of sale, should not unnecessarily use, 
 
 194. 
 deterioration of securities, under what circumstances triistee 
 should realise them, 191, 197. 
 statutory enactment as to, 191. 
 error of judgment, not liable for reasonable, 195. 
 forgery, how far lialile if deceived by, 197. 
 improvident purchase by, 196. 
 
 must insist on a good marketable title, 196. 
 improvident sale by, 195. 
 
 should jirocure valuation, 195. 
 
 [ 45 1
 
 INDEX. 
 
 PRUDENCE, DUTY OF TRUSTEE TO EXERCISE— continued. 
 
 insure, liow far bound to effect against loss or damage by fire, 198. 
 inventory of trust chattels, sliould make and keep, 198. 
 investments, in making. See Investment. 
 joining in a joint sale of trust property and adjacent property, 
 
 193. 
 
 or where the trust projierty is an undivided share or a 
 
 reversion, 194. 
 
 notice of assignments of choses in action, should give, 193, n. (t). 
 
 option to purchase at future date, should not give, 195. 
 
 prove, should for debt due to trust estate where debtor bankrupt, 
 
 193. 
 whether debtor be a third party or trustee himself, 193. 
 register, must see that trust instruments are put upon where 
 
 registration rec^uired, 193. 
 rents, should not allow, to fall into arrear, 192. 
 repairs, how far bound to see to, 199. 
 
 See Repairs. 
 securities standing at low market price, how far dutv of trustees 
 
 to realise, 191, 197. 
 theft of trust property, how far liable for, 197. 
 
 PURCHASE, 
 
 approval of, by judge, 330. 
 
 confidential adviser cannot, unless other party separately 
 
 advised. 251. 
 in another's name. See ResultixCt Trust. 
 land, of, unauthorised, trustee should re-sell at request of any 
 
 beneficiary, 353. 
 solicitor cannot, from client unless latter separately advised, 251. 
 
 nor from client's trustee in bankruptcy, 251. 
 trustee cannot, from self or co-trustees, 243 — 250. 
 
 And see Sale, Trustees for. 
 trustees directed to, should — 
 
 abstain until they have money in hand sufticient to 
 
 comi)lete, 196. 
 ascertain value, 196. 
 employ a valuer, 196. 
 get a marketable title, 196. 
 get legal estate, 196. 
 
 not puichase advowson timber estate or mining property, 
 
 nor eipiity of redem]ition, 212, n. (o). 160, 161. 
 
 advance their own money to make up deficiency, 327. 
 
 nor borrow from others for that jjurpose, 196. 
 
 PURCHASER FOR VALUE, 
 
 claiming thiougli a breach (if trust, wlieu liabK', 390 — 400. 
 
 Sec Third 1'arties. 
 under a .settlement maile to defeat creditors, is ])rotected if 
 witliout notice, 75, 83. 
 or where voluntary .settlement void under r>ankruptcv Act, 
 
 86. 
 under a settlement m.ide to defeat ]iurehaser.'^, is jirotected if 
 without notice <if actual I'raud, 89.
 
 INDEX. 
 
 R. 
 
 KATES, 
 
 borne by income, 181. 
 
 EE-APPOINT, 
 
 court will not, trustees who have been properly appointed out 
 of court, 305. 
 
 RECEIPTS OF TRUSTEES, 
 
 given by one only is no discharge, 235. 
 how far they discharge purchasers and others, 266. 
 powers of giving, cannot in general be delegated, 228. 
 even to co-trustee, 235, 236. 
 
 aliter, in the case of purchase-money or money payable 
 under a policy of insurance, the delegate being a solicitor 
 or banker, 228 et seq. 
 when given for conformity only, do not make them liable for 
 defaults of co-trustee, 236. 
 
 RECEIVER, 
 
 when one will be appointed, 356 et seq. 
 
 RECOUPMENT, 388. See Over-payment. 
 
 REFUNDING 
 
 overpaid shares, 388. 
 See Over-payment. 
 
 REIMBURSEMENT OF TRUSTEES, 320—328. 
 
 abortive sale, costs of, where trustees have no present power of sale, 
 administration suit, costs ordered in, 323. 325. 
 
 trustee seldom deprived of costs, charges or expenses in, 
 beneficiary by, personally in certain cases, 320. _ 323. 
 
 breach of trust, in cases of, trustee cannot claim reimburse- 
 ment, 231, 327. 
 
 until he has made the breach good, 321. 
 calls on shares, 321. 
 capital, generally payable out of, 321. 
 
 but until paid trustees have lien on capital and income, 
 caution, costs incurred through excess of, 325. 321, 326. 
 
 costs, charges, and expenses properly incurred, 320. 
 
 incurred before accepting the trust, 324. 
 
 of unsuccessfully defending action, 325. 
 
 unreasonable, disallowed, 325. 
 
 what are properly incurred depends upon circumstances, 
 costs paid to previous trustees, 324. 320, 325. 
 
 damages and costs, of, recovered by third parties from trustee, 
 
 321. 
 lien for, trustees have paramount, on income and capital, 321, 326. 
 
 aliter where they have mixed tlie trust funds with theii' own 
 monej's, 327. 
 loan by trustees to enable property to be purchased for the 
 
 trust, 327. 
 solicitor's charges, 323. 
 
 but beneficiaries may tax the bill, 323. 
 
 [47 ]
 
 INDEX. 
 
 REIMBURSEMENT OF TUVSTKES— continued. 
 time at -which right arises, 322. 
 
 not qiiia timet, 322. 
 trust business, liabilities incurred by trustee in carrying on, 322. 
 creditors of, cannot claim directly against the trust property 
 but only against trustee personally, 322. 
 but if trustee has claim to be reimbursed, the creditors 
 may claim to be placed in his shoes by subroga- 
 tion, 322. 
 aliter where he has committed breach of trust, 323. 
 entitled to reimbursement if the business was rightly 
 carried on, 322. 
 but where the settlement expressly appropriates a fund 
 for carrying on the business the trustee's reimburse- 
 ment is restricted to that fund, 322. 
 void settlement, under, 326. 
 
 bankruptcy Act, under, 326. 
 statute 13"Eliz. c. 5, under, 327. 
 where trustee has mixed trust fund with his own money, 327. 
 
 RELEASE, 
 
 beneficiary, by, bars claim, unless improperly obtained, 369, 370. 
 
 aliter if not sui juris, or if ignorant of effect, 369, 372. 
 court, by, from the office of trustee, only obtainable by action, 
 
 334, 337. 
 when trustee entitled to apply to court for a, 337. 
 what amounts to a, 370. 
 whether trustee entitled to a, under seal, 328 et seq. 
 
 RELIGIOUS INFLUENCE, 
 
 effect of, on validity of a settlement, 70. 
 
 REMAINDERMAN, 
 
 is not proper jierson to be appointed a new trustee, 306. 
 
 REMAINDERS 
 
 expectant on trusts, based on value, when considered voluntary, 
 
 28, 30, 31. 
 
 IlEMOTENESS. Sec Perpetuities. 
 
 REMOVAL OF TRUSTEE, 290 et seq. 
 liow eti'ected, 290 et seq. 
 
 court, by the, 291. 
 
 express power, under, 291. 
 
 statutory power, under, 29L 
 illustrations of circumstances which justify, 296 — 298. 
 
 REMUNERATION OF TRUSTEE, 240 d seq. 
 
 as a general rule trustees nuist act without, 240. 
 
 aliter in case of certain constructive trusts, 240. 
 
 or where settlcjiiient or cf)urt autlioi-i.ses remuneration, 
 trustee has stii)idated for it, 240. [240. 
 
 business, trustee of a, not entitled to salary however onerous the 
 duties, 242. 
 ex('('t)ti()n in constructive trusts, 243. 
 court aulliorising remuneration, instance of, 242, n. (u). 
 judicial trustee, in case of, 338, 340. 
 
 [48]
 
 INDEX. 
 
 REMUNERATION OF TRUSTEE— coiitinued. 
 
 solicitor trustee must not generally make charges, 241. 
 aliter if authorised by settlement, 241. 
 but settlement construed very strictly as to this, 241. 
 exception in litigious work under rule in Gradock v. Piper, 
 
 242. 
 power to make " professional charges" does not extend to 
 loss of time, etc., 242. 
 " whether business usually within the business of a 
 solicitor or not " does not embrace work altogether 
 outside professional avocations, 242. 
 rule in Gradock v. Piper, allowing solicitor trustee to make 
 professional charges in litigious matters, 242. 
 RENTS, 
 
 trustees should not allow, to fall into arrear, 192. 
 
 REPAIR, 
 
 as to how costs of, are to be borne, 179, 183 — 186. 
 
 Sec Tenant for Life and Remainderman. 
 duty of trustees to see that premises are kept in, 199, 266. 
 of infants' estates, law as to, 185. 
 
 REPAIRS OF TRUST PROPERTY, 
 American law as to, 184, n. (;:;). 
 cost of, may be equitably apportioned by court between corpus 
 
 and income, 179, 184, 185. 
 duty of trustee as to, 199. 
 
 leaseholds, cost of, usually falls ujDon income, 184, 185. 
 legal estate in fee in trustees, court will equitably apportion the 
 cost between corpus and income, 184 — 186. 
 may also authorise mortgage for raising the cost, 184. 
 no j urisdiction where legal remainders given benehcially, 263. 
 legal remainderman, interest of, cannot be charged for contribu- 
 tion by court, 263. 
 tenant for life not liable for, 183, 263. 
 summary of the law as to, 185. 
 tenant for life, legal, not liable to make, 183, 263. 
 trustees may make necessary, to leaseholds, without any order, 184. 
 and repay themselves out of income or corpus without 
 prejudice to the ultimate apportionment of burden 
 between tenant for life and remainderman, 184. 
 
 REPAYMENT, 388. See Overpayment. 
 
 REQUEST, 
 
 breach of trust committed at the, of beneficiary, 375, 379. 
 See Breach of Trust. 
 
 RESULTING TRUST, 100 d seq. 
 
 (]) where the legal ownership is disposed of, but the equitable 
 is not, or only partially, 103 — 108. 
 donee spoken of as trustee, but no trust declared, 103, 104. 
 unless it appears that he was to take what was un- 
 disposed of, 105. 
 e.g., where the jjroperty is given subject to a 
 mere charge, 106. 
 
 T. 2 G [ 49 ]
 
 INDEX. 
 
 RESULTING TKUST—coyitinued. 
 
 (1) where the legal ownership is disposed of, but the equitable 
 
 is not, or only partially — continued. 
 evidence, how far admissible to rebut, 104, 107, 108. 
 express trust which does not exhaust the entire beneficial 
 interest, 103, 105. 
 or fails for uncertainty, total failure of consideration 
 or want of writing where writing is necessary, 
 or by lapse, 103, 107. 
 or, the property being realty, the trusts declared 
 are only applicable to personalty, 104. 
 failure of express trust, by reason of, 103 — 107. 
 lapse, in consequence of, 103 — 107. 
 marriage, settlement in consideration of, which never 
 
 takes place, 69, 107. 
 total failure of consideration, by reason of, 69, 107. 
 trusts for creditors, where there is a surplus, 105. 
 
 Lord Halsbury's judgment as to creditor's deeds in 
 
 Smith V. Coolie, 106, n. (n). 
 unclaimed dividends under, 106. 
 unless intention appears that creditors are to take 
 the property absolutelj^, 106. 
 
 (2) where declared trust illegal, 108 et seq. 
 
 doctrine of in "pari delicto, where the illegal 2)urpose has!^ 
 been carried out, 108 et scci. 
 fraud on game laws, 107. 
 
 settlement on illegal marriage may be valid, 109. 
 unless the trust is only to commence on marriage, 
 
 lii. 
 
 illegal purpose not carried out, may give rise to a result- 
 ing trust, 109—111. 
 trust to defeat creditors. 111. 
 escape forfeiture. 111. 
 
 serving an office, 112. 
 illegal purpose which if carried out Avould defeat a legal 
 l)rohil)ition, or efi'ect a fraud always gives rise 
 to a resulting trust, 108, 112 ct seq. 
 charitable uses, 113. 
 perpetuities and accumulations, 112. 
 
 (3) purchases in, and voluntary transfers into another's name, 
 
 113 et seq. 
 general prinid facie pi'esumption of resulting trust in 
 favour of purchaser or grantor, 113, 114. 
 aliter where real estate is voluntarily conveyed by 
 owner to vse of another, 114. 
 or wlicie a ])urchaHe of au)^ kind of property or 
 a transfer of ])ersonal estate is made in the 
 name of a wife or chikl, 115. 
 or wliere the purchase money is money lent to 
 tlie ])erson in whose name the purchase is 
 taken, 114. 
 or wliere a ])urcliase is made in the names of 
 tiuslees ot an existing trust, 114, 117. 
 I)arol cvidcnrc uf intcul ion, Innv far adiiiissilile, IIG. 
 
 I 50 1
 
 INDEX. 
 
 RESULTING TRVST— continued. 
 
 (3) purchases in, and voluntary transfers into another's name — 
 
 continued. 
 person in loco parentis, by, to a child in whose name a pur- 
 chase is made, 119. 
 purchase money partly advanced by person in whose 
 name the property is taken and partly by another, 
 
 114. 
 surrounding circumstances may aid or rebut the general 
 presumption, 116. 
 e.g., contemporaneous acts of the person who paid the 
 purchase money, 116. 
 or the fact that a son in whose name a pur- 
 chase was made was the solicitor of his 
 father, 117. 
 or that the person who paid the purchase money 
 or made the voluntary trust was the husband 
 or father of, or stood in loco ixtrentis to, the 
 person into whose name the property was 
 transferred, 113, 115, 119. 
 
 (4) to whom the property results, 119 e< seq. 
 
 conversion, trust for, in instrument which either wholly 
 or partially fails, 120. 
 power of, does not operate to effect unless actually 
 
 exercised, 124. 
 property results to person who would have taken if 
 no conversion had been directed, 124. 
 as to deeds, 124. 
 wills, 120. 
 where person to whom property results dies before 
 getting it in, as between his real and personal 
 representatives it is treated as converted unless 
 trust for conversion wholly fails, 120, 122 — 124. 
 deed, where resulting trust arises of property comprised 
 in it results to settlor, 119, 120. 
 marriage settlement where no issue born, 120. 
 where settlor dies before getting the property back, 
 124 ; and see supra, sub-head " conversion." 
 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, 120. 
 even where will declares that the property is to be 
 
 considered as converted for all purposes, 121. 
 notwithstanding that the subsisting trusts of the 
 will require that the conversion shall be made, 
 
 121. 
 person in whose favour it results takes it as con- 
 verted unless the trust for conversion wholly 
 fails, 121—124. 
 
 RETIREMENT OF TRUSTEE, 290 et seq. 
 
 collusive, to enable new trustees to commit breach of trust, 199. 
 consent of all beneficiaries, by, 291, 292. 
 
 2 G 2 [ 51 ] 
 
 i
 
 INDEX. 
 
 EETIREMEXT OF TRUSTEE- continued. 
 court, by order of the, 293. 
 
 appointment of a successor, not absolutely essential, 292. 
 costs of, 293. 
 express power, under, 290. 
 
 costs of, general, payable out of trust estate, 292. 
 in general, necessitates appointment of new trustee, 292. 
 statutory power contained in Trustee Act, 1893, under, 290. 
 costs of, payable out of trust estate, 292. 
 does not necessitate appointment of successor where two 
 trustees left, unless settlement expressly prescribes the 
 contrary, 292. 
 
 REVERSION, 
 
 trustee should generally sell, 165 — 178. 
 
 if sale postponed, tenant for life entitled to part of proceeds 
 as compensation for p)ast income, 170, 171, 176. 
 
 REVOCATION 
 
 of a trust, whether based on value or voluntary, not permitted 
 if it be complete and executed, 27, 29, 32 et seq., 66, 69. 
 See Voluntary Trust. 
 aliter, if the verv object with which trust was created has 
 failed, 66,' 69. 
 if there was fraud or undue influence attendant on 
 creation of trust, 66, 70 et scq. 
 trust created in ignorance or mistake as to its legal 
 effect, 66, 69. 
 improvident pro\'isions, how far evidence of mistake, 69. 
 not revocable even in above cases, if accjuiesced in, 73. 
 
 or if parties cannot be placed in statu quo, 74. 
 omis of proving bona Jules on cestuis que trusts where they 
 occupy a fiduciai'v position towards settlor, 68, 70. 
 aliter, where there is no fiduciary relation, 68. 
 power of, not essential to validity of a voluntary settlement, 67 
 
 et seq. 
 
 SALARY, 
 
 when capable of being alienated, 41. 
 
 trustee not generally entitled to a, 240 et scq., 339. 
 
 SALE, 
 
 approval of, l)y jtidge, 330. 
 
 directed, but no trustee appointed to sell, 19. 
 
 power of, cannot be accelerated, 159. 
 
 may be exerciseable, even after the property has vested 
 absolutely in beneficiaries, 178. 
 
 SALE, TRUSTEES FOR, 243 et seq. See Solicitor. 
 cannot sell to one of tlii-mselves, 243, 247. 
 absolute nature of prohibition, 247. 
 agents, jtrohibition applies to, 249. 
 
 [ •'■'2 ]
 
 INDEX. 
 
 SALE, TRUSTEES FOR— continued. 
 
 caunot sell to one of themselves — continued. 
 applies to trustees de son tort, '2,4,1. 
 bare trustee, rule inapplicable to, 249. 
 
 aliter where he has been an active one, 247, 249. 
 beneficiaries, trustee may purchase from, 250. 
 
 but court re.i^ards such transaction with jealousy, 250. 
 disclaimer of trust removes the disability, 249. 
 even where after contract he becomes the purchaser's repre- 
 sentative, 248. 
 intermediary, sale through, futile, 247. 
 joint stock company, sale to, by trustee who is a share- 
 holder may be upheld, 248. 
 aliter if "one man company," 248. 
 onus of bona fides on purchaser, 248. 
 leave of court, rule may be waived by, 249. 
 purchaser from trustee who has purchased, gets bad title, 
 
 248. 
 repurchase by trustee at future date not necessarily bad, 
 
 248. 
 
 even where he sold with hope of repurchasing, 248. 
 
 subsidiary settlement, whether trustee of, can purchase for 
 
 his own benefit from trustees of original settlement, 250. 
 
 trustee of trustee's marriage settlement may purchase from 
 
 trustee, 251. 
 trustee j)urchasing Avill have to repay rents, 247. 
 conduct of sales by, 264. 
 improvident conduct, 195. 
 
 depreciatory conditions should be avoided, 194. 
 receipt of, for purchase money, 266. 
 
 SECRET TESTAMENTARY TRUST, 54 et seq. 
 
 SEC URITIES. See Investment ; Appropriation. 
 custody of, 198, 232. 
 
 proper course where payable to bearer, 198, 232. 
 depreciated, not necessarily the duty of trustees to realise, 191. 
 
 SEPARATE USE. See Married Woman. 
 
 SEPARATION, 
 
 trust in relation to, between husband and wife, when legal, 50. 
 
 SET-OFF 
 
 of gain on one breach of trust against loss on another, when 
 allowable, 349 et seq. 
 
 SETTLE, DIRECTION TO, 97 et seq. 
 
 SETTLEMENT, 
 
 married woman's equity to a, 261, 333. 
 
 of beneficial interest under a trust, original trustees without 
 
 notice of, 219. 
 trustees should strictly obey provisions of, 156 — 159. 
 acceleration of trust for sale a breach of trust, 159. 
 
 [53]
 
 INDEX. 
 
 SETTLEMENT— fo)i«im<«rf. 
 
 trustees should strictly obey provisions of — continiied. 
 
 beneficiaries collectively may authorise departure from 
 
 terms of settlement, 157. 
 consents where required must be obtained, 158. 
 disregarding directions as to investments, 158. 
 exceptions to the rule, 157. 
 
 neglect to sell or to effect a purchase, where directed, 157. 
 non-observance of conditions imposed by settlement or 
 
 exercise of discretionary powers, 158. 
 
 SETTLOE, 
 
 definition of a, 1. ; 
 
 who may be a, 59 et seq. * 
 
 con^■ict, 61. * 
 
 corporation, 60. ; 
 
 infant, 59 et seq. 
 
 lunatic, 61. 
 
 married woman, 60. 
 
 SEVERANCE 
 
 of trustees in litigious matters, exposes them to risk of being 
 
 deprived of costs, 324. 
 of trusts on appointment of new trustees, 319. 
 
 no longer confined to cases where new trustees of entirety 
 are being appointed, 319. 
 
 SHAREHOLDERS OF COMPANY ' 
 
 who have received capital idtra vires are trustees for the 
 comi:)any, 133. 
 
 SHARES, I 
 
 calls on, payable out of capital, 181. 
 
 new, allotted) gratis to old shareholders, are corpus and not 
 
 income, 161. , 
 
 SHELLEY'S CASE, j 
 
 rule in, applies to executed trusts, 95 et seq. 1 
 
 does not apply to executory trusts, 96 et seq. j 
 
 SHOOTING, 
 
 trustee for infant ought not personally to avail himself of the, 
 
 246. 
 SIMPLE TRUST, 
 definition of a, 10. 
 
 SKILLED PERSONS, j 
 
 trustee may em]jloy, where reasonable, 225. J 
 
 fc.\amj»les of persons wlio may be so employed, 226. ■ 
 
 how far trustee may safely act upon advice of, 226. * 
 
 SOLICITOR, . 
 
 advice of, in matters of law, liow far trustee may safely act J 
 
 upon, 226. I 
 
 as-sistin;,' knowingly in getting fund in court paid to wrong 
 person is liable to refund it, 385. 
 
 [ --i^ ]
 
 INDEX. 
 
 SOLICITOR— continued. 
 
 costs, receiving, from trustee wlio lias committed a breach of 
 
 trust, not generally bound to repay them, 393. 
 delegation of duty of receiving trust money to, when allowable, 
 
 228. 
 direction to pay his costs does .not create a trust in his favour, 26. 
 employ, direction to, in settlement gives solicitor no right to be 
 
 employed, 26. 
 employing trust funds in his business, liability of, 345. 
 employment of, by trustee, generally allowable, 222, 226. 
 
 but trustee must always judge for himself and not blindly 
 act on solicitor's advice or recommendation, 222, 224. 
 gift to, by client, liable to be set aside, 71. 
 
 same princij^le applies to gifts to solicitor's wife or child, 
 
 71, 72. 
 meddling with trust property becomes a trustee de son tort, 384. 
 negligence or unskilfulness of, whether trustee liable for, 226— 
 
 228. 
 preparing deeds for carrying out technical breach of trust, not 
 
 liable,"384. 
 purchase by, from client, impeachable, 251. 
 
 client must always be separately advised, 251. 
 rule equally applicable where solicitor purchases from 
 client's trustee in bankruptcy, 251. 
 purchase in name of, by his father, an exception to the usual 
 
 presumption of advancement, 117. 
 retaining trust money cannot plead Statute of Limitations, 385. 
 settlement upon, or upon his wife or child by client liable to be 
 
 impeached, 71, 72. 
 trust money, in what cases he may be permitted to receive, 228 
 
 et seq. 
 receiving, is bound to see that it is duly applied, 385. 
 
 misai^plying, by direction of trustee will not absolve 
 him, 385. 
 trustee, cannot as a rule make professional charges, 241. 
 aliter if authorised by settlement, 241. 
 but settlenient construed very strictly, 241. 
 beneficiaries may tax his bill, 242. 
 duty of solicitor trustee to inform beneficiaries of their 
 right to tax, 242. 
 exception in court cases, where solicitor acts for self and co- 
 trustee, 242. 
 power to make " professional charges " does not extend to 
 mere loss of time, 242. 
 even where the settlement authorises charges for work 
 " whether within the business of a solicitor or not," 
 
 241. 
 SPECIAL EXECUTORS 
 
 cannot now be appointed of trust estates, 285, n. (/). 
 
 SPECIAL TRUST, 
 definition of, 10. 
 
 STATUS, 
 
 change of, precludes cancellation of settlement, 74. 
 [55]
 
 INDEX. 
 
 STOCK CERTIFICATES 
 
 to bearer, trustees should not obtain, 201. 
 
 should not be intrusted to trustee's solicitor or to co-trustee, 
 but should be deposited with banker, 198, 232. 
 
 STOCK MORTGAGE, 
 
 trustees should rarely invest on a, 212. 
 
 STOLEN TRUST PROPERTY, 
 
 trustee not bound to replace, 197. 
 
 secus, if property obtained from him Ijy fraud or forgery, 
 
 197. 
 SUB-MORTGAGE 
 
 a good investment for trustees, 213. 
 
 SUMMONS. See Administration. 
 
 trustee entitled to issue, for the direction of Chancery judge on 
 points of difficulty, 330, 331. 
 See Originating Summons. 
 
 SURPLUS, 
 
 after satisfying express trusts, results, 105. 
 See Resulting Trust (1). 
 
 SURROUNDING CIRCUMSTANCES 
 
 may rebut presumj^tion of resulting trust, 116. 
 
 SURVIVING TRUSTEE 
 
 can execute original powers, 284, 285. 
 
 SUSPENSION 
 
 of trustee's powers by suit, 272. 
 
 T. 
 
 TAXES 
 
 borne by income, 179. 
 
 TENANT FOR LIFE. See Tenant for Life and Remainderman. 
 constructive trustee for all ])arties in remainder, 126. 
 
 must not avail himself of his position to profit at their 
 expense, 126. 
 ecjuitable, Ikjw far entitled to possession of settled land, 282. 
 ini]ii'oper person to l)e ai)])ointed a trustee, 306. 
 h'gal, cannot be made to repaii', 183, 203. 
 
 paying off incumljiaiices, is entitled to be recouped by a charge 
 on the inheritance, 130. 
 aliter as to expenditure on improvements, 131. 
 ])OSHe8sion of real estate, when entitled to, 282. 
 trustees must not uiidnly favoui', at expense of remaindermen, 
 
 160—165. 
 
 TENANT FOR LIFE AND REIMAINDEI^MAN, 
 
 accretion to trust jjroperty is capital and not income, 161, 162. 
 appreciation of securities is capital and not income, 162. 
 
 [ •'■>0 ]
 
 INDEX. 
 
 TENANT FOR LIFE AND REMAINDERMAN— co9Thn«cf?. 
 
 bonus, new capital allotted by way of, must be treated as corpvis 
 and not income, IGl. 
 aliter where bonuses are really another name for increased 
 dividend, IGl. 
 calls on shares, must be paid out of capital, 181. 
 depreciated security, relative rights on realisation of, 178. 
 foreclosure of mortgage and subsequent sale at a profit, 162. 
 impartial, duty of trustee to be between, 160 — 165. 
 
 influence, trustee should not use his, to favour one of his 
 
 beneficiaries, 161. 
 investments, trustees should not select risky, yielding a high 
 
 rate of interest, 161. 
 mining i:)roperty, trustees for purchase should not buy, 161. 
 sales and purchases must not be made to promote exclusive 
 
 intei'est of tenant for life, 160. 
 timber, trustees for payment of debts should not sell where 
 tenant for life entitled to cut, 160. 
 trustees should not purchase estate with overwhelming 
 proportion of trees on it, 160. 
 income of property which ought to be converted, how treated 
 as between, 170 — 178. 
 brickfield, 172. 
 direction that income is to be enjoyed in specie, 172, 
 
 implication to like effect, 173. 
 insufficient mortgage security, where trustees are in posses- 
 sion, 171, 177. 
 on realisation of, where interest in arrear, 171, 178. 
 And see Re Bird, Dodd v. Evans, [1901] 1 Ch. 916. 
 non-wasting property, of, court accepts very slight evidence 
 of intention that the whole income is to be enjoyed by 
 life tenant, 170, n. {p). 
 policy of insurance, settled, tenant for life entitled to part 
 
 of policy moneys by way of past interest, 177. 
 power to postpone realisation, eftect of, 170, 175. 
 realisation of insufficient security, part of proceeds may be 
 
 treated as income, 172. 
 rents of real estate directed to be sold, 174. 
 reversionary property, 170, 176. 
 
 when sold, tenant for life entitled to portion of pro- 
 ceeds by way of past income, 170, 171, 176. 
 wasting property, tenant for life entitled to whole income 
 pending sale, if settlement so directs or implies, 170. 
 otherwise where the property cannot be sold, in which 
 case only entitled to such income as the proceeds 
 would produce, 170. 
 p»ower to postpone until suitable opportunity occurs, 
 entitles tenant for life to three per cent, on the 
 Ijroceeds, 170, 175. 
 incumbrances paid ott' by life tenant, entitles him to a charge in 
 
 equity on the inheritance, 130. 
 insufficient security where interest in arrear, right of tenant for 
 
 life to some part of corpus, 172. 
 losses on trust business, 182. 
 
 [57 ]
 
 INDEX. 
 
 TENANT FOR LIFE AND REMAINDERMAN— co/ifrnwed. 
 
 outgoings, incidence of, as between, 178 — 188. 
 annuities cliarged on income, 182. 
 
 buildings, new, necessary for rendering property lettable, 
 calls on shares,. 131. 184. 
 
 compensation for improvements payable to tenant, when 
 
 borne by tenant for life, 181. 
 corpus bears capital charges, and income bears interest on 
 them, 178, 179. 
 even sometimes where incumbrance directed to be dis- 
 charged by accumulation of income, 180. 
 aliter where charged on income, 182. 
 corpus bears costs incident to administration and protection 
 of trust property, including costs of legal proceedings, 
 current annual charges, 178, 179, 181. 179, 187. 
 
 fire insurance, 182. 
 rates and taxes, 181. 
 rent and cost of repairs payable in respect of trust 
 
 leaseholds, 181. 
 sanitary repairs under Public Health Acts, 181. 
 sewers, complete reconstruction of, 181. 
 express directions, 182. 
 fencing of unfenced land, 186. 
 income bears interest on incumbrances, 178. 
 
 bears current expenses including rates, taxes, and 
 repairs of leaseholds, but not of freeholds, 179. 
 legal expenses, 187. 
 losses on trust business, 182. 
 premiums for keeping on foot settled policies, 182. 
 
 or fire policies, 182. 
 receiver, commission of, 182. 
 
 renewal of leases, fines and premiums payable upon, 186. 
 repairs, of freeholds etjuitably apportioned by court between 
 tenant for life and remaindermen, 179, 183 — 186. 
 aliter where one or other has legal estate, 183, 263. 
 of leaseholds borne by tenant for life, 179. 
 profits on realisation of trust investments are capital, 162. 
 
 excess ])roduced on sale of mortgaged property after fore- 
 closure, 162. 
 repairs, incidence of, as between, 184 — 186. 
 
 (See REPAiRfcs. 
 reversionary property, general dutyof trustee to realise, 165 — 178. 
 sale of ])r()perty l)y mortgagee where direction to pay mortgage 
 
 debt out of accumulation of income, 180. 
 nhares, new, allotted gratis to trustees are capital, 161. 
 
 on reconstruction of company, 163. 
 trust business, losses on, 182. 
 
 wasting ])i-operty, duty of trustee to sell, 165 — 178. 
 (See Wastinc PkoI'Ekty. 
 income of, pending sale. Sec Hxqmi, sub-bead " Income." 
 
 THE FT 
 
 (iT tinst, ]iri>pcr(y, trustee not generally liable for, 117. 
 
 T1I1;LLUSS0N act, 46. 
 
 [ •^•« 1
 
 INDEX. 
 
 THIRD PARTIES, LIABILITY OF, 
 
 (1) cases where third parties were j)rivy to a breach of trust, 
 
 382—390. 
 agent of trustee who has accepted a delegation of the 
 
 trust, 384. 
 all persons who knowingly meddle with trust funds 
 
 become liable for breach of trust, 382. 
 bankers who with knowledge of trust transfer fund to 
 
 credit of tenant for life are liable, 384. 
 forger of marriage certificate by which trust fund is paid 
 
 to wrong person is liable, 384. 
 solicitors who merely prepare deeds relating to contem- 
 plated breaches of trust not liable unless they have 
 reason to suspect dishonesty, 384. 
 alitei- where they have got the custody of the trust 
 property, and do not see that it is paid into the 
 right person's hands, 384, 385. 
 or where they knowingly assist in getting fund in 
 court j)aid to wrong person, 385. 
 Statutes of Limitation only apply to third parties to the 
 
 same extent as to the trustees, 382, 385. 
 trustee cle son tort is equally liable with trustee de jure, 384. 
 agent of trustee who accepts delegation of the trust, 
 or fraudulently mixes himself up with a breach, 384. 
 anyone who gets rightly or wrongly possession of a 
 trust fund with notice, is bound to see that 
 it is either paid to the proj^er trustees or to 
 the beneficiaries, 385. 
 not sufficient to show that he invested it by 
 direction of trustees in unauthorised 
 securities, 385. 
 nor that he paid it to one of several trus- 
 tees, 385. 
 
 (2) cases where third parties have acquired trust property for 
 
 value, 390 et seq. 
 if purchase made with notice of trust the title of bene- 
 ficiaries i^revails, 390. 
 
 what constitutes notice, 393 et seq. 
 
 doubtful equity, notice of, not binding, 392. 
 if purchase made without notice of trust, the title of 
 beneficiaries still prevails, unless third party has 
 got legal ownership, or the property consists of a 
 negotiable instrument, 391, 399. 
 
 bankers have right to lien where trust money paid 
 in to private account of trustee, 393. 
 
 costs paid by defaulting trustee to solicitor, 393. 
 
 legal estate, acquired by innocent purchaser after 
 getting notice of the trust, 400. 
 
 purchaser with notice from purchaser without, 398. 
 
 separate account of incumbrancers, fund carried to, 
 in an administration action gives them priority 
 over claims of co-beneficiaries, 397. 
 
 transfer of trust fund into court, to make good 
 default in another trust, 397. 
 
 [59]
 
 INDEX. 
 
 THIRD PARTIES, LIABILITY OF— continued. 
 
 (3) cases where third party lias acquired property without 
 valuable consideration, 397. 
 TIMBER, 
 
 trustees should not buy an estate with large proportion of, J 60. 
 may cut down, when arrived at maturity, 260. 
 
 aliter, where legal rights would be interfered with, 263. 
 should not sell, to pay debts, 160. 
 TOMBS, 
 
 trust to erect, is not void, but is 2irol>ably not enforceable, 63. 
 
 keep churchyard generally in repair need not be so 
 
 limited, as it would be a charitable trust, 64. 
 keep in repair is not void if limited in j^oint of time so 
 as to avoid transgressing rule against perpetuities, 64. 
 But see Be Moore, Brior v. Moore, [1901] 1 Ch. 936. 
 
 TRADE, 
 
 creditors of trust, not entitled to claim directly against trust 
 fund, but only against the trustees, 26, n. (a), 322. 
 but may by subrogation stand in the trustee's place against 
 the trust fund, 322. 
 losses on a trust, generally come out of income, 182. 
 
 trustees have a right to be reimbursed, 322. 
 See Reimbursement. 
 trustees employing trust property in their own, liable to account 
 for profits or to pay compound interest, 345, 346. 
 See Breach op Trust. 
 trustees may not charge for managing a, 242. 
 
 TRAFFIC, 
 
 trustee must not, with the trust property, 243 — 252. 
 
 TRUST BUSINESS. See Trade, siqmi. 
 
 TRUST PROPERTY, 
 
 all kinds of property may be made, unless prohibited by statute 
 or puljlic policy, or inconsistent with tenure, 39. 
 
 business or trade. See Trade, supra. 
 
 choses in action, 40. 
 
 copyholds, 43. 
 
 equitable estates and interests, 40. 
 
 expectances, 41. 
 
 foreign lands, 43. 
 
 pay, 41. 
 
 pensions, 42, 43. 
 
 possibilities, 41. 
 
 property made inalienable by statute, 42. 
 
 reversionary interests, 40. 
 
 salary, 41. 
 bankrupt trustee, does not ])ass to creditors of, 149. 
 
 aliter if it caniKit be traced, 352. 
 definition of, 1. 
 
 following, in th(! hands of tlic trustees, 351 — 355. 
 Sn: F()i,i,()wiN(j Trust I'rcjpkrty. 
 
 in the liands of tlijid jjiulics, 390—400. 
 &eTnini) rAHTIKS. 
 
 [ «" ]
 
 INDEX. 
 
 TRUST VROVEWTY— continued. 
 
 mortgage of, to the trustees or one of them not allowed, 238, 249. 
 
 alUer of beneficial interest of a cestui que trust, 251. 
 profit out of, trustee prohibited from making, 243 — 252. 
 
 See Profit. 
 purchase of, by trustee invalid, 343 — 350. 
 
 See Sale, Trustees for. 
 trustee must not use or borrow, or otherwise ti'affic with, 243 — 
 See Profit. 252 
 
 vesting of, in new trustees, 309 — 318. ^ 
 
 See Vesting op Property in New Trustees. ^ , / /'j , 
 
 TRUSTEE. S^eei'sCoNSTRUCTivE Trust ; Resulting Trust ; Ac- 
 ceptance ; Disclaimer; Estate of Trustee; Duties of 
 Trustee ; Powers of Trustee ; Breach of Trust ; and 
 Protection. 
 active, definition of an, 10. 
 bare, definition of a, 286, n. (</). 
 definition of a, 1 . 
 failure of, 19, 30. 
 impartial, must be, 160 — 165. 
 passive, definition of a, 10. 
 where none appointed, 19. 
 who is a fit person to be a, 305 et seq. 
 
 alien, 307. 
 
 bankrupt, 304. 
 
 beneficiary, 296. 
 
 husl-iand of cestui que trust, 307. 
 
 infant, 306. 
 
 maiden lady, 308. 
 
 married woman, 308. 
 
 pei'son residing abroad, 307. 
 
 remainderman, 306. 
 
 solicitor to the trust, 307. 
 
 tenant for life, 306. 
 voluntary settlement upon a. See Validity (1). 
 
 TRUSTEE BE SON TORT, 384 et seq. 
 
 all persons who meddle with trust funds or mix themselves up 
 with a breach of trust, including agents who have ac- 
 cepted a delegation of the trustees ' duties become equally 
 liable with the trustees, 384. 
 where such person has a beneficial interest it may be 
 impounded to make good such liability, 386. 
 whether the interest be original or derivative, 387. 
 bankers jjarting with fund, which they know is a trust fund, to 
 
 persons other than the trustees, 384. 
 person obtaining trust fund on faith of forged certificate, 384. 
 solicitor knowingly procuring fund in court to be paid out to 
 wrong person, 385. 
 retaining trust money on payment off of mortgage, 385. 
 to whom trust fund has been paid can only discharge him- 
 self by paying to the duly appointed trustees, 385. 
 not sufficient to show that at their request he 
 invested it in unauthorised securities, 385. 
 
 [61]
 
 INDEX. 
 
 TRUSTEE BE SON TORT— continued. 
 
 third party who is knowingly paid a debt out of trust property 
 imjDroperly is liable to refund it, 393. 
 aliter where he has no reason to suppose that the trustee 
 could not have recourse to the trust fund, 393. 
 trust fund lent to tenant for life, 383, 387 
 
 u. 
 
 UNDISPOSED 
 
 of equitable estate, results, 103 — 108. 
 See Resulting Trust (1). 
 
 UNDUE INFLUENCE, 70 et seq. 
 by clergyman, 70. 
 parent, 72. 
 
 court very strict as to trusts in favour of, 72. 
 solicitor, 71. 
 
 even trusts in favour of wife or son of, are prima facie 
 void, 72. 
 eflfect of acquiescence on gifts otherwise void by reason of, 73 
 
 et, seq. 
 effect of change of status of beneficiary in consideration of trust 
 where trust would otherwise be void by reason of, 74. 
 
 UNFIT AND INCAPABLE. See New Trustees (4). 
 
 V. 
 
 VALIDITY OF A TRUST, 
 
 as to object. See Illegal Trust. 
 
 and where voluntary. See Voluntary Trust. 
 (1) as against the settlor, 97 et seq. 
 See Revocation, 
 as to who may be a beneficiary, 62 et seq. 
 
 See Beneficiary. 
 as to who may be a settlor, 59 et seq. 
 
 See Settlor. 
 failure of consideration, GG, 69. 
 fraud, 56, 58, 66, 70. 
 
 onus of proving, 68. 
 mistake, 66, 69 et seq. 
 
 even whore value given, 70. 
 ignorance of tlie eifect of tlie settlement, 70. 
 omission of intended provision, 66, n. (o). 
 on wliom tlie onus of jn'oving mistake lies, 67, 68. 
 settlement excniuled when settlor very ill, 7(>. 
 onus of |)riiving validily of a voluntary settlement, 67, 68. 
 power ot revoeatioii in v(jluntary settlements not essential 
 to, 67, 68. 
 alili-.r wliere child is sef fling on father, 73. 
 subsequent acc^uiescence validates, 66, 73. 
 
 [62]
 
 INDEX. 
 
 VALIDITY OF A TRV8T— continued. 
 
 (1) as against the settlor — continued. 
 
 undue influence, 70 et seq. 
 
 of clergyman, 70. 
 
 father, 72. 
 
 legal adviser, 71, 251. 
 near and trusted relative, 251. 
 trustee, 68, 250. 
 onus of proving, 70 et seq. 
 where against pul:)lic policy or statute, 43 et seq. 
 accumulations, 44, 45. 
 against policy of Bankruptcy Act, 48. 
 in favour of no human object, 63, 64. 
 perpetuities, 44. 
 restraint of marriage, 50, 51. 
 
 on alienation, 48. 
 separation deeds, 50. 
 trust for future bastards, 49. 
 "where defendant has changed his or her status in con- 
 sideration of, it cannot be set aside, 74. 
 
 (2) as against creditors, under 13 Eliz. c. 5...74e^ seq. 
 
 delay by creditors in impeaching, generally immaterial, 
 
 direct intention to defraud, 78 et seq. 75, n. (c). 
 
 assignment of all debtor's goods to one of several 
 
 creditors, 78. 
 marriage settlement on self until bankruptcy, 81. 
 marriage settlement with intent to defraud creditors, 
 
 when void, 81 — 83. 
 settlement of entire property on commencing a 
 
 speculative trade, 79. 
 settlement of part, and reckless expenditiire of the 
 
 rest of a debtor's property, 79. 
 settlement on oneself until alienation appears to be 
 valid, 82. 
 criticism on last proposition, 82. 
 settlement to avoid the consequences of an antici- 
 pated j udgment, 78. 
 aliter, where court finds no such intention, 
 although in the result the settlement has that 
 effect, 80. 
 upheld in favour of bond fide parties to considera- 
 _ tion, 75, n. (/), 83, 84. 
 examination of authorities as to whether intent to defraud 
 must be proved, or whether it can be inferred, 75 et seq. 
 fraudulent intent not presumed merely because the 
 unforeseen but inevitable result was to defeat 
 creditors, 75 et seq., 80, 81. 
 gross negligence not necessarily equivalent to fraud, 
 although it may \>q inimd facie evidence of it, 77. 
 onus of proving knowledge of fraudulent intention is on 
 
 the creditor, 84. 
 purchasers for value without notice are protected, 75. 
 but the valuable consideration must be substantial 
 and not merely technical, 83, n. (e). 
 
 [63]
 
 INDEX. 
 
 VALIDITY OF A TRJJST— continued. 
 
 (2) as against creditors — continued. 
 
 whether intent to defraud will be presumed from the 
 surrounding circumstances, 75 — 78, 80. 
 
 intent to defraud is matter of fact, and not an infer- 
 ence of law, 75 et seq., 80. 
 
 where no direct intention to defraud, but the settlor 
 insolvent, 80 et seq. 
 
 (3) as against creditors in bankruptcy, 85 et seq. 
 
 covenants to settle future property void if property 
 
 earmarked, 85, 87. 
 equity of redemption, voluntary settlement of, and 
 
 covenant to pay mortgage debt, 86. 
 post-nuptial settlement, where life estate under it taken 
 
 with other property of settlor, renders him solvent, 87. 
 premiums paid to keep up policy under voluntary settle- 
 ment, 85, n. (Ji). 
 settlement for making good a breach of trust is not 
 
 voluntary, 87. 
 settlements of property acquired jure mariti not void on 
 
 bankruptcy, 88. 
 settlements void on bankruptcy are not void as against 
 
 purchasers from the beneficiaries, 86. 
 
 (4) as against subsequent purchasers, 89 et seq. 
 
 direct intention to defraud, 91. 
 examples of old law, 91. 
 power to revoke, 91. 
 
 settlement not voluntary where based on mutual pro- 
 mises, 92. 
 • settlement only void pro tanto, 93. 
 
 statement of law prior to the Voluntary Conveyances 
 
 Act, 1893, and alterations made by that Act, 89. 
 trifling consideration was sufficient to preserve the settle- 
 ment, 91. 
 voluntary settlements bad in the hands of cestuis que 
 trusts against purchasers from settlor prior to 
 Voluntary Conveyances Act, 1893... 91. 
 notice of settlement to subsequent purchaser did not 
 deprive him of the benefit of the statute, 92. 
 VALUABLE CONSIDERATIOX, 
 
 amount immaterial under 27 Eliz. c. 4... 91. 
 children of a future marriage are not privy to, 31. 
 
 woman's former marriage are not privy to, 31. 
 definition of, persons privy to, 28. 
 formalities are immaterial, where it exists, 15, 30. 
 limitations in a marriage .'settlement which are not based on, 31. 
 mutual jjromises constitute, 92. 
 trust bfi-xeil on, when enforceable Vjy volunteers, 27 et seq. 
 
 See Voluntary Tru.st.s. 
 where there is none, 27 d seq. 
 VALUER, 
 
 advice of, how far a protection to trustee, 213, 215, 216. 
 trustee must choose his own, and not leave it to his solicitor, 
 
 222, 224. 
 [64]
 
 INDEX. 
 
 VENDOR, 
 
 constructive trustee for purchaser, 128. 
 
 VERBAL TRUST, 52 et seq. See Writing. 
 
 intended to be testamentary is generally void, 52, 54. 
 secus, where fraud, 56. 
 
 VESTING OF PROPERTY IN NEW TRUSTEES, 309—318. 
 how effected, 309. 
 
 by ordinary modes of transfer, 309. 
 
 by vesting declaration in deed appointing new trustees oi- 
 by which a trustee retires, 309. 
 extracts from Trustee Act as to, 310, 311. 
 inapplicable to copyholds, mortgages, and stocks and 
 
 shares, 310. 
 must be contained in the deed appointing the new 
 trustees or by which the trustee retires, 311. 
 by vesting order of the court, 309, 311 et seq. 
 
 Chancery Division, jurisdiction of, 311 et seq. 
 application, who may make, 316. 
 appointment of person to transfer where more 
 
 convenient, 314, 316. 
 chose in action as to, 314 et seq. 
 constructive trustees, jurisdiction extends to, 312, 
 copyholds in case of, 314. n. (y). 
 
 documents of title, whether jurisdiction extends 
 
 to, 312, n. (:;). 
 effect of, 313. 
 extends to lands in any part of the Empire except 
 
 Scotland, 311, n. («). 
 infant trustee in case of, 312, 314, 
 land as to, 311 et seq. 
 
 leaseholds jurisdiction now extends to, 312, n. (z). 
 
 lunatic, where a trustee is, court has jurisdiction if 
 
 he is also an infant or abroad, 312, notes (h) 
 
 and (c). 
 where one a lunatic and other out of juris- 
 diction or infant, 315, n. (?'). 
 ships, as to shares in, 316. 
 stock as to, 314 et seq. 
 tenant in tail, where trustee is a, the court can vest 
 
 the fee simple, 313, n. (/). 
 trustee out of jurisdiction, 312, 315. 
 
 unless absence temporary, e.g., in case of a 
 sailor, 312, n. (c). 
 where court appoints new trustees, 311, 312, 
 
 n. (x), 314, 315. 
 where last surviving trustee died without heir or 
 representative, 312, 
 no jurisdiction where stock vested in such 
 last survivor, 315, n. (k). 
 where trustee cannot be found, 312, 315. 
 where trustee wrongfully refuses to transfer, 313, 
 
 315. 
 aliter, where he refuses reasonably, 313, n. ^e) 
 
 T. 2 H [ 65 1
 
 INDEX. 
 
 VESTING OF PROPERTY IN NEW TRUSTEES— cowimued. 
 
 how effected — continued. 
 
 by vesting order of the court — continued. 
 Chancery Division — continued. 
 
 where uncertain whether trustee alive, 312, 315. 
 where uncertain who was survi^dng trustee, 312. 
 where uncertain who is representative or heir of 
 last surviving trustee, 312. 
 Lunacy Court, jurisdiction of, 316 et seq. 
 
 ai^plications in lunacy and in chancery, 315, n. (i), 
 
 316, n. (n). 
 appointment of person to convey or transfer, 317. 
 beneficiary absolutely entitled, court will not vest 
 property in, but will appoint new trustee, 317, 
 
 n. (r). 
 leaseholds, query whether lunacy court has juris- 
 diction to make vesting order as to, 312, n. [z). 
 lunacy disputed, 317, n. (q). 
 
 one of several trustees lunatic, court will not vest 
 
 in remaining trustees alone, 317, n. (r). 
 
 aliter, where fund immediately divisible, 
 
 procedure, 317. 317, n. (r). 
 
 where court appoints new trustee in place of 
 
 lunatic, 303, 317. 
 where trust proj^erty vested in lunatic, 317. 
 whether " so found " or not, 317, n. {q). 
 where master appoints person to exercise on behalf 
 of lunatic a power of appointing new trustees, 
 
 301 317. 
 VOID TRUSTS, 
 
 relating to the management of property for the benefit of no 
 human being, 65. 
 Sep. also Anticipation, Restraint on ; Bankruptcy ; 
 Illegitimate Children ; Perpetuities ; Thellusson 
 Act ; and Validity. 
 
 VOLUNTARY TRUST, 27 et seq. 
 
 agreement for a lease may be the subject of a, 33. 
 agreement to create, even if under seal, not enforceable, 28, 32. 
 but beneficiaries may have a claim for damages for breach 
 
 of contract, 28, n. (h). 
 even if a third jsarty has given valuable consideration, only 
 he or his representatives, and not the voluntary 
 1)eneficiaries can enforce the trust, 28, 30, 38. 
 aliter where his representative is also the beneficiary, 39. 
 if enforced by tliird i)arty it will be enforced in toto not 
 only in liis favourlnit in favourof thevolunteers, 28,30,39. 
 not ecjuivalent to a declaration of trust, 29. 
 binding il declared by will, 27. 
 
 or if settlor has expressly or by conduct declared himself a 
 
 trustee, 28, 34. 
 or if settlor has effectually vested the property in trustees, 
 
 28, 29, 32, 36, 37, 66 d seq. 
 or has done all in his ])ower so to vest it, 28, 33. 
 
 [06]
 
 INDEX. 
 
 VOLUNTARY TRVST— continued. 
 
 cancellation of, only decreed for mistake or fraud, 66 et seq. 
 conduct of settlor may be evidence of a, 28, 34. 
 covenant to create, not enforceable, 28, 32. 
 creditors of settlor, validity of, against, 74 — 87. 
 
 See Validity. 
 damages may sometimes be recovered against settlor if settle- 
 ment under seal, 28, n. (/;.). 
 debts comprised in a, subsequently collected by settlor, 34. 
 declaration of trust by settlor sufficient to bind liim, 27, 28, 34, 
 
 37. 
 imperfect gift not construed as equivalent to declaration of 
 
 trust, 29, 36—38. 
 may be implied from conduct, 28, 34. 
 equitable estate may be the subject of, if settlor has done all in 
 
 his power to vest it in trustee, 28, 33. 
 executed, cannot be broken without the consent of the 
 volunteers, 27, 28, 32. 
 aliter, if executory, 27, 28, 32. 
 imperfect gift not construed as equivalent to, 36. 
 
 not even where wife is the donee, 38. 
 imprudent, not necessarily set aside unless for mistake or 
 
 fraud, 67. 
 incomplete transmutation of ownership to the trustees raises no 
 presumption that settlor holds the property in trust for 
 them, 29. 
 oyius of supporting, 67 et seq. 
 policy of insurance, may be the subject of, and the trust may 
 
 be declared in the policy itself, 34. 
 power of revocation not essential to validity of, 67. 
 purchasers as against subsequent, for settlor, 89—91. 
 
 See Validity. 
 reversionary interest, may be the subject of a, 33. 
 
 VOLUNTEER. See Voluntary Trust. 
 assignee of a lease is generally not a, 92. 
 attitude of equity towards, 29. 
 claiming title in consequence of a breach of trust of which he 
 
 had no notice gets no relief, 397. 
 contract with a third party in favour of, not enforceable by the 
 volunteer, 30, 38. 
 aliter, where the covenant has been performed and the 
 property vested in trustees for the volunteer, 39. 
 copyholds, covenant to surrender in favour of, 32. 
 debts assigned to, but subsequently got in by the assignor, 34. 
 declaration of trust by settlor in favour of, enforceable, 28. 
 
 may l3e implied from conduct, 34. 
 definition of a, 29. 
 equitable interests, settlements of, in favour of volunteers, may 
 
 be enforceable, 33. 
 equity gives no assistance to, 28, 29, 32. 
 
 unless trust is declared by will or is completely declared 
 by Act inter vivos, and does not rest in contract, 28, 29, 
 
 32, 33, 36, 37. 
 
 [ 67 1
 
 INDEX. 
 
 YOLV'STEE'R— continued. 
 
 executed trust in favour of, is enforceable, 27, 28, 32, 37. 
 incomjilete gift to, not enforceable, 29, 36 et seq. 
 
 assignment of mortgage debt Avithout assignment of security 
 said to be incomplete, 34. 
 aliter, where security is a bill of sale, 34. 
 conflict of authorities as to, 36, n. (i). 
 marriage settlements, who are volunteers under, 29, 31. 
 under trust based on value, cannot enforce the trust except 
 through some person who has given or is privy to the 
 valuable consideration, 28, 30, 38. 
 aliter, where he is also the personal representative of a 
 person -who gave valuable consideration for the trust, 39. 
 
 w. 
 
 WAIVER 
 
 of breach of trust, what amounts to, 371 — 373. 
 
 WASTING AND REVERSIONARY PROPERTY, CONVER- 
 SION OF, 165—178. 
 direction to convert at a particular jieriod, 168. 
 discretion given to trustees exempts them from duty to convert, 
 
 167. 
 divide, direction to, negatives the implied duty to sell, 168. 
 duty of trustees is, generally speaking, to convert and invest in 
 permanent investments, 165. 
 aliter if settlement directs the contrary, 165, 166. 
 or confers a discretion on trustees, 165, 166. 
 
 specifically settles the wasting property, 165, 166. 
 Howe v. Lord Dartmouth, rule in, 165. 
 implied power to retain, unconverted, 167. 
 income oi', 170—178. 
 
 See Tenant for Life and Remainderman. 
 income of property set aside to answer a future liability must be 
 
 treated as capital, 166. 
 leaseholds should be converted, 166. 
 long annuities should be converted, 166. 
 
 unless direction not to convert government securities, 168. 
 sed qiucre, 169. 
 power to sell, express, may negative the implied duty, 168. 
 receive, direction to allow tenant for life to, may negative the 
 
 ordinary rule, 168. 
 rents of leaseholds, trust, to pay, negatives the ordinary duty to 
 
 sell them, 168. 
 residue, rule a])plies to settlements oi', KJO. 
 retain, express ])ower to, takes case out of general rule, 167. 
 
 im])lied power to, 167. 
 ppecific;illy settled, no duty to convert, 160. 
 timc! named for conversion impliedly negatives earlier sale, 168. 
 
 WIDOW OR WIDOWE]?, 
 
 children of, arc not williin tlii^ consideration of a second 
 marriagcj 31. 
 
 [ ^i« 1
 
 INDEX. 
 
 WIFE, 
 
 advancement of, 113 et scq. 
 
 See Eesulting Trust (3) ; Married Woman. 
 imperfect gift to, 38. 
 
 WILL. See Settlement ; Writing. 
 
 WRITING, 
 
 American decisions as to necessity of, 56, n. (y). 
 necessity of, in declarations of trust inter vivos of real estate and 
 leaseholds, 52 ct seq. 
 
 letters may be sufficient, 53. 
 
 what the writing miist show, 53. 
 
 where fraud writing unnecessary, 53, 58. 
 resulting trust, where declared trust was not reduced into, 107. 
 testamentary trust must in all cases be reduced into and duly 
 witnessed as a will or codicil, 52, 54. 
 
 aliter in case of fraud, 56. 
 
 fraud by one of two joint legatees, 57. 
 
 view of the American courts as to the effect of fraud, 56, 
 
 . , "• (y)- 
 
 unnecessary m the case of money, stocks or chattels, 52, 54. 
 
 WRONG PERSON, 
 
 payment to, liability of trustee in cases of, 217 c^ seq. 
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